SCOTUS SitRep

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This session of the Supreme Court will produce five decisions that could have far reaching impact going forward. One involves a novel twist on straw buyers for guns, another examines police access to an arrestee’s cell phone, another addresses the president’s power to make recess appointments, a fourth addresses public service unions, and the fifth involves contraceptive mandates in the Affordable Care Act.

In Abramski v US 12-1493, the Court was asked to decide if one person legally able to purchase a firearm can purchase a firearm for another person legally able to purchase a firearm. In other words, does such a construct fall under the “straw buyer” prohibition in 18 US 922(a)6? The 5-4 majority[1] opinion, delivered by Justice Kagan, argues that an individual cannot walk into a gun dealer’s shop and buy a gun for someone else by claiming to be the actual buyer.  A form demanding to know who the actual purchaser is, the majority ruled, has to be answered truthfully, or else the entire transaction is illegal[2].

At issue is a situation where Angel Alverez, a Pennsylvania resident legally able to purchase a handgun, asked his nephew, a former Rocky Mount [VA] police officer, to buy a Glock 19 for him, taking advantage of the peace officer’s discount many gun shops offer. Bruce James Abramski Jr, of Rocky Mount [VA] was convicted of claiming falsely that he was the buyer of the Glock 19. This ruling upheld that conviction.

The Supreme Court found that federal background checks of the actual buyer are an important tool for investigating gun crimes: “We hold that such a misrepresentation is punishable under the statute, whether or not the true buyer could have purchased the gun without the straw,” Justice Elena Kagan wrote for the majority. I concur. I harbor no desire to limit the ability of lawful persons to purchase and possess firearms, but by the same token, recognize the significant damage done in our society by armed unlawful persons. I don’t feel it too confining to ask the lawful buyer to conduct the transaction him or herself.

Justice Antonin Scalia wrote for the dissenters[3] arguing that the federal background-checking scheme simply does not apply to a gun purchase when both the person at the counter paying for the weapon and the person for whom the gun is being bought are legally eligible to have it. I find this argument weak and fraught with abuse opportunities.

Riley v California 13-132 and US v Wurie 13-212 resulted in the twelfth unanimous finding against the Obama administration’s stand before the Supreme Court. At issue are two similar cases where police searched an arrestee’s cellphone which led to further charges against the arrestees. Both cases were appealed on Fourth Amendment grounds. Both arrestees were convicted on the original charges, but wanted the additional charges overturned. The US Supreme Court agreed that a warrant is needed before searching a cellphone – even after the owner is arrested – except in cases where the safety of the officers or others is at immediate risk.

“Cellphones are powerful devices unlike anything else police may find on someone they arrest,” Chief Justice John Roberts said for the court. “Modern cellphones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans the privacies of life,” Roberts said. I agree. A conversation we’ve had here at the house about this decision concerned Berghuis v Thompkins 08-1470, the case which stated that as long as an arrestee claimed his Fifth Amendment right to remain silent, the State could not force him/her to reveal passwords to encrypted files. This would seem to apply to warranted searches of cellphones as well as computers legally seized by police.

National Labor Relations Board v Noel Canning et al 12-1281 essentially asked the Court to remind the president that the legislative body decides when it is on recess, not the executive. It’s in the Constitution. For the thirteenth time, the Supreme Court found unanimously against the administration, with liberal Justice Stephen Breyer writing for the Court.

President Obama opened 2012 by naming three members to the quorum-starved NLRB and the first director of the Consumer Financial Protection Bureau while the Senate was gaveling in and out every 72 hours, usually without conducting any business. These pro forma sessions were announced in advance, and it was announced that these sessions were conducted with the express intent of keeping the Senate in session.

Obama said the Senate, for all intents and purposes, was in recess. Under the Constitution, presidents can fill vacancies during recesses without Senate confirmation.

Enter Pepsi bottler Noel Canning of Yakima [WA], which contested a 2012 decision of the labor board dominated by Obama’s recess appointees. It won more than it bargained for at the US Court of Appeals for the DC Circuit, which ruled that such appointments are constitutional only when vacancies occur and are filled during the annual break between congressional sessions[4].

This ruling means that ~1,800 decisions made by the labor board while dominated by Obama’s recess appointees in 2012 and half of 2013 will be called into question. The new five-member board, including four members since approved by the Senate, will have to revisit those cases. Consumer protection chief Richard Cordray has since been confirmed by the Senate, so he can reaffirm his prior actions.

In this case, I think Canning will lose on the merits when re-litigated before a legitimate NLRB, but the important impact here is that the Court reminded the executive that it must act within the Constitution.

In Harris v Quinn 11-681, the Supreme Court ruled 5-4 along ideological lines that in untraditional workplaces – petitioner was engaged in homecare – persons not a member of the usual union for such activities is not compelled to pay union dues (even though they are covered by industry-wide conditions negotiated by those unions). This is a narrow ruling in that it doesn’t address (one way or the other) persons in traditional workplaces who do not belong to the relevant union, but are required to pay dues.

This could serve as a wedge on either of two fronts – unions, in general, requiring non-members in a workplace to pay dues; and public service unions in general.

Sebelius v Hobby Lobby Stores Inc 13-354 and Conestoga Wood Specialties Corp v Sebelius 13-356 both have to do with the Affordable Care Act mandating that abortifacients be included in a list of covered birth control therapies. The argument was joined by two privately owned businesses that claim to run their companies according to religious beliefs, and that mandating that they provide “morning after” birth control methods constitutes abortion, and that runs against their fervently held religious beliefs. Again 5-4 along ideological lines, the Court ruled that closely-held (i.e., not publicly traded) firms can opt out of providing these four (three pills and one IUD) methods from the list of twenty covered birth control techniques.

As in Harris, the Court decided narrowly, in that this ruling applies only to closely-held companies, and applies only to the abortifacients on the list. This may also provide a wedge with which others attempt to chip away at the Affordable Care Act and/or mandated birth control, but for now, the issue is specifically defined.


[1] Kagan, Breyer, Ginsburg, Sotomayor and Kennedy.

[2] See Supreme Court rules against third-party gun purchases, RIA Novosti, June 17 2014, 0405EDT; Sam Hananel, Supreme Court rules on “straw purchaser” law, AP, June 16 2014, 1543EDT.

[3] Scalia, Roberts, Alito and Thomas.

[4] The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session. Constitution of the United States of America, Article II, Section 2, Clause 2.

Note to Readers

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I apologize for being absent from these pages – I’ve been wrestling with technical problems associated with changing versions of MicroSoft Office. When the old version was scrubbed from my system, it took my access to eMail with it, and I must alter the old account so as to keep the current history, etc.

That, as it turns out, is above my pay grade. I have no idea how to establish “Administrator” status and change/verify my password, and then bring the apparatus into the new version of Office. My wizard is away at an event to award him for well-deserved service in another sector. As soon as he returns, we will get back in business.

Thank you for your patience.

EagleWatch

Scrambling a Scrambled Tale

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I have tried to write this paper for several days now, but things keep coming to light. While I’m sure that will continue to happen, enough of the story is out that the rest is likely to be detail. I’m talking, of course, about the trade of five Taliban VIPs for Sergeant Bowe Bergdahl.

What we do know is that Private Bergdahl was stationed at a remote outpost in Paktika Province along the Afghan-Pakistan border as a member of 1st Battalion, 501st Infantry Regiment, 4th Brigade Combat Team (Airborne), 25th Infantry Division. He left that outpost on his own and unarmed on June 30 2009, and was captured by the Afghan Taliban a few days thereafter. According to Sergeant Evan Buetow, Bowe Bergdahl’s team leader, their mission changed for the next sixty days as a concentrated search for Private Bergdahl was conducted[1]. Private Bergdahl was widely known to be dissatisfied with America’s role in the Afghan War, had become disillusioned with his part in it, and his departure was considered, at the time and by his peers, to be desertion.

One of the things done at remote outposts is the monitoring of enemy radio and cell phone traffic, and while doing that, Sergeant Buetow was present the day after Private Bergdahl went missing when they intercepted an alarming message: “The American is in Yahya Khel (a village two miles away). He’s looking for someone who speaks English so he can talk to the Taliban.” “I heard it straight from the interpreter’s lips as he heard it over the radio,” said Sergeant Buetow[2]. Desertion now had the prospect of becoming defection.

We know that he was in Taliban hands by July 18 2009, when a video surfaced showing Private Bergdahl, his dog tags, and during which he referred an event which had occurred four days earlier. At some point in late 2010 or early 2011, the Afghan Taliban turned Private Bergdahl over to the Haqqani network, who rules the roost in the Waziristan tribal region of western Pakistan. They finance their work largely by kidnapping for ransom, and as such were more interested in a trade for cash than a prisoner swap. This is their MO.

As AP first reported in 2011, talks about releasing the five senior Taliban reach back to at least late 2010, following nearly a decade of war. In the beginning, the name of Bergdahl was not even part of the equation[3]. SecState Hillary Clinton was personally and intensely involved in the debate over swapping five Taliban commanders for Sergeant Bowe Bergdahl in 2011 and 2012, but she had severe reservations about the potential deal. She wasn’t the only top member of the Obama administration skeptical of the deal. Three US intelligence officials told The Daily Beast on Monday that DNI James Clapper flat out rejected the release of the five detainees, saying there was too high a risk these Taliban commanders would return to the battlefield and orchestrate attacks against Americans. Then-SecDef Leon Panetta, declined to certify that the US could mitigate the risk of releasing the Taliban commanders[4]. 

There were two main differences between the Clinton-led negotiations that took place in 2011 and 2012 and the largely White House-led process in late 2013 and this year that ultimately achieved the prisoner swap. First of all, Secretary Clinton’s deal would have had stricter measures to ensure that the Taliban held up their end of the deal – and kept their released commanders from returning to the fight. Secondly, for Ms Clinton, the prisoner swap only made sense if only if it was one piece of a series of events that led to a peace process between the Taliban and the Afghan government. In February 2011, Secretary Clinton delivered a major speech that set out her offer to the Taliban for a future inside the Afghan political system: “Break ties with al Qaeda, renounce violence, and abide by the Afghan constitution, and you can rejoin Afghan society,” she told the Taliban. “Refuse and you will continue to face the consequences of being tied to al Qaeda as an enemy of the international community.” In late 2012, Clinton spokesman Patrick Ventrell said the Bergdahl case was only one part of the overall effort to convince the Taliban to make peace. “We said within the reconciliation track … that his case was something that, in that track, could potentially be raised[5].”

Following Clinton’s departure and the collapse of the Taliban peace outreach, the White House took a more assertive role in pushing for the prisoner swap. Eventually, the White House agreed to the prisoner swap as a stand-alone deal with no relationship to the broader effort to end the war[6].

At 1816EDT on Saturday, May 31, in the White House Rose Garden, President Obama spoke about the recovery of Sergeant Bowe Bergdahl. President Obama commended the service members who recovered Sergeant Bergdahl, saying that they “performed with extraordinary courage and professionalism, and they’ve made their nation proud.”  He went on to affirm that the top priority now is “making sure that Bowe gets the care and support that he needs, and that he can be reunited with his family as soon as possible[7].” The president was flanked by Bowe’s parents. This to a public that was unaware of anything thus far discussed, aside from a dim awareness that we had a soldier being held by somebody in Afghanistan or Pakistan. It was handled like a feel-good photo op. That was unforced error number one.

We didn’t have to wait long for the second one. The next day, Susan Rice – a bull who carries a china shop around with her – made the rounds of the Sunday talks, where she intoned that Sergeant Bergdahl “served with honor and distinction.” One wonders where she got those talking points! In her post as National Security Advisor, Ms Rice should have been aware of two pertinent facts concerning the swap – the nature of the people we released from Guantánamo[8], and the nature of Private Bergdahl’s disappearance and subsequent capture. The uproar was immediate and intense.

Monday saw the president reminding us that “we don’t leave anyone behind” in our wars. He’s right about that. And through spokesment, “clarifying” Ms Rice’s statement as meaning that he volunteered for service and was deployed to Afghanistan – a tortured logical convolution from her simple statement on the subject.

Senate Intelligence Committee Chairman Dianne Feinstein (D-CA) on Tuesday said the Obama administration flouted US law when it negotiated Sergeant Bowe Bergdahl’s exchange, saying the last time lawmakers were consulted on the matter was a January 2012 letter from then-SecState Hillary Clinton[9]. This refers to a clause that requires Congress to be consulted pending any release of detainees from Guantánamo. Unforced error number three. The president, and his spokesman Jay Carney, had repeatedly promised that he would not release prisoners without consulting Congress. They are now claiming that two-year-old consultations about the possibility of trading prisoners for Bergdahl counted as consulting them about trading these specific five VIPs for a deserter. As it turned out, he lied (again). Unforced error number four.

Then they said that the transfer had to be rushed because Sergeant Bergdahl’s health was precarious, and there just wasn’t time to go through formalities. This is ridiculous, as these negotiations had been going on for the better part of a year. Unforced error number five. Then they switched to a story about not being able to afford a leak, lest the Taliban execute Sergeant Bergdahl in reaction – again, ridiculous in that Congress was kept abreast of the bin Laden operations for months before the mission, and nothing was leaked. Unforced error number six.

All of this juvenile scrambling around trying out stories on the press was totally unnecessary in that Article II of the Constitution gives the executive unilateral authority to conduct military operations, and takes precedence over any clause of legislation. A constitutional lecturer should know this. That’s right, the president has the authority to conduct prisoner swaps with or without consulting Congress, with or without contravening legislation. This whole mess could have been avoided by not succumbing to his omnipresent desire for photo ops and a simple reminder to the press that his authority to act is ensconced in the Constitution.


[1] Guy Benson, Intercepted Radio Chatter Indicated Bergdahl Sought Contact With Taliban, CNN, June 4 2014.

[2] Ibid.

[3] Kathy Gannon, Analysis: Talks in Bergdahl release had wider goal, Associated Press, June 4 2014, 1804EDT.

[4] Josh Rogin, Hillary Was Skeptical of Taliban Swap, in the Daily Beast, June 3 2014, 2110EDT.

[5] Ibid.

[6] Ibid.

[7] David Hudson, President Obama Speaks on the Recovery of Sergeant Bowe Bergdahl: “It’s a good day”, White House blog, May 31 2014, 2016EDT.

[8] Mullah Mohammad Fazl, Taliban army chief of staff (the equivalent of a 4-star officer), is “wanted by the UN for war crimes including the murder of thousands of Shi’ites.” Fazl “was associated with terrorist groups currently opposing US and Coalition forces including al Qaeda, Islamic Movement of Uzbekistan (IMU), Hezb-e-Islami Gulbuddin (HIG), and an Anti-Coalition Militia group known as Harakat-i-Inqilab-i-Islami.”

Mullah Norullah Noori, senior Taliban military commander (equivalent to a 3-star officer), like Fazl, Noori is “wanted by the UN for war crimes including the murder of thousands of Shi’ite Muslims.” Beginning in the mid-1990s, Noori “fought alongside al Qaeda as a Taliban military general, against the N’ern alliance.” He continued to work closely with al Qaeda in the years that followed.

Abdul Haq Wasiq, Taliban deputy minister of intelligence (equivalent to the Deputy Director of CIA), arranged for al Qaeda members to provide crucial intelligence training prior to 9/11. The training was headed by Hamza Zubayr, an al Qaeda instructor who was killed during the same September 2002 raid that netted Ramzi Binalshibh, the point man for the 9/11 operation. Wasiq “was central to the Taliban’s efforts to form alliances with other Islamic fundamentalist groups to fight alongside the Taliban against US and Coalition forces after the 11 September 2001 attacks,” according to a leaked JTF-GTMO threat assessment.

Khairullah Khairkhwa, (Taliban governor of the Herat province and former interior minister (equivalent of cabinet officer), was the governor of Afghanistan’s westernmost province prior to 9/11. In that capacity, he executed sensitive missions for Mullah Omar, including helping to broker a secret deal with the Iranians. For much of the pre-9/11 period, Iran and the Taliban were bitter foes. But a Taliban delegation that included Kharikhwa helped secure Iran’s support for the Taliban’s efforts against the American-led coalition in late 2001. JTF-GTMO found that Khairkhwa was likely a major drug trafficker and deeply in bed with al Qaeda. He allegedly oversaw one of Osama bin Laden’s training facilities in Herat.

Mohammed Nabi, senior Taliban figure and security official (again, equivalent to a CIA officer), “was a senior Taliban official who served in multiple leadership roles.” Nabi “had strong operational ties to Anti-Coalition Militia (ACM) groups including al Qaeda, the Taliban, the Haqqani Network, and the Hezb-e-Islami Gulbuddin (HIG), some of whom remain active in ACM activities.” Intelligence cited in the JTF-GTMO files indicates that Nabi held weekly meetings with al Qaeda operatives to coordinate attacks against US-led forces.

[9] Michael R Crittenden, Feinstein: Congress Should Have Been Consulted on Bergdahl Exchange, in Wall Street Journal, June 3 2014, 1747EDT.