There’s been much to-do in the past month about the “war on coal,” the latest front of which is, supposedly, the Environmental Protection Agency’s new rule to cut carbon emissions from power plants. This “war” has already been invoked in midterm election campaigns, not just by Republicans but also by coal-state Democrats who protest that the industry is being singled out for euthanasia.
They’re half right. It’s important to distinguish between coal mining communities and Big Coal corporations; technology and geology doomed the former, not government policy. Coal mining jobs have been disappearing for decades as strip mines and advanced machinery made the work less dependent on human labor. In Appalachia, coal itself has run out, at least in reserves that are economically feasible to mine. Still, Big Coal’s investors and political supporters are right to notice that in a carbon-constrained world, their product has to be phased out even further. Burning carbon rocks is just irreconcilable with climate action.
What all this “war on coal” talk is missing is the fact that while the Obama administration is taking steps to discourage coal consumption at home, it is tacitly promoting coal exports overseas. Last week the Bureau of Land Management announced plans to lease more than 8 million tons of coal on public lands in Colorado’s Delta County—a continuation of a decades-long debacle known as the federal coal leasing program, which has cost taxpayers billions and effectively acted as a subsidy for Big Coal.
The primary benefit of the Delta County sale, according to the BLM’s environmental impact statement, is that it will be a “contribution to the supply of coal to meet the nation’s energy demands.” This is a fishy statement considering that demand for coal in the United States is at a twenty-four-year low. It looks particularly ludicrous in light of the fact that the prospective buyer, Bowie Resources, has been aggressively trying to develop new pathways to get its landlocked Western reserves to Asia—in other words, is actively looking for ways to avoid contributing to the domestic coal supply.
Bowie’s financial incentives are simple: demand for coal is still growing overseas, particularly in China, and it makes sense to go in search of higher price outside the United States. But things get more complicated when the coal Bowie and other producers are selling is taxpayer-owned, as most Western coal stocks are. Among the many problems with the leasing program is that the BLM “does not fully account for export potential” when it prices publicly owned coal, according to a 2013 report by the Interior Department’s inspector general. While giving producers access to below-market coal was originally intended to ensure a cheap supply of domestic energy, the leasing program now looks more like an arrangement benefitting Big Coal alone. As Massachusetts Senator Ed Markey wrote in a February letter calling for a moratorium on new federal coal leases, “Taxpayers are likely losing out so that coal companies can reap a windfall and export that coal overseas where it is burned, worsening climate change. This is a bad deal all around.”
So far the Obama administration has failed to address the climate implications of subsidizing coal exports with below-market prices (or, for that matter, the contradictions between the president’s climate agenda and his “all of the above” energy strategy more generally). It looks like the courts may beat the administration to the punch. Days before the Delta County sale was announced, a US District judge ruled that the BLM and the US Forest Service violated federal law by failing to consider the social cost of carbon before approving an expansion of a coal lease in Colorado’s Gunnison County. “While the agencies provided an adequate disclosure of effects on adjacent lands, their treatment of the costs associated with [greenhouse gas] emissions from the mine was arbitrary and capricious,” wrote Judge R. Brooke Jackson.
So far Big Coal’s export-expansion dreams have been kept at bay by local opposition to new port facilities in California and the Pacific Northwest. But that doesn’t resolve the incoherence between Obama’s regulatory agenda at home, which is intended to cut carbon emissions, and the administration’s resistance to considering the global warming implications of the leasing program, which continues largely unreformed despite successive reports of poor management. If Big Coal is dying, it’s going out with a bang; according to the BLM, leases are pending for 3.5 billion tons.
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On Monday, President Obama ripped into the GOP for turning its back on the country’s immigration crisis, and announced that he was preparing to take unilateral action by the end of the summer to change the country’s enforcement policies. The announcement stirred up bluster from the usual suspects about executive overreach—never mind that it was John Boehner himself who, in a meeting on June 24, reportedly informed Obama that reform legislation is dead in the House, at least for the rest of the year.
Despite mounting pressure from immigrant rights groups, Obama has refrained from revising heavy-handed enforcement policies for months, ostensibly to create political space for Republicans to move their own legislation forward, something they claimed—and continue to claim—they want to do. Now that the charade is over there’s no reason for the president not to act. Republicans have never explained what else he could do to earn the “trust” they say is lacking; Obama has already presided over a record-breaking 2 million deportations, and Senate Democrats even offered to change their legislation so that it wouldn’t go into effect until a new administration takes over in 2017.
If Obama has given up trying to appease the GOP and wants to shift away from a policy that emphasizes deportations, it’s hard to explain why he is considering weakening a law intended to ensure that children aren’t removed to violent situations and to protect victims of child trafficking, in order to more quickly remove the unaccompanied minors flooding over the borders.
“It’s an utter devastation of due process for our most vulnerable community members,” Ruthie Epstein of the ACLU said in response to the administration’s acknowledgement that it is considering changes to the William Wilberforce Trafficking Victims Protection Reauthorization Act. That law shields children from countries who do not share a border with the United States from immediate deportation. It mandates that they must instead be handed over to Health and Human Services, which helps them access legal counsel to advise them on the process of applying for asylum, and in some cases releases them to US relatives. The new proposal would let Border Patrol agents make the decision to deport the children they arrest after only a brief screening interview, denying the children access to legal counsel.
Obama said on Monday that speeding up the deportation of children was intended to send “a clear message to the parents in these countries not to put these kids through this. The problem is that our system is so broken, so unclear that folks don’t know what the rules are.” According to the White House, “a deliberate misinformation campaign” led by “criminal syndicates in Central America” is responsible for encouraging children to travel to the United States. But there’s ample evidence that those kids aren’t chasing misleading rumors in hopes of catching the American dream. They’re fleeing violence and extreme poverty.
The Department of Homeland Security itself cited these underlying causes in a document obtained by the Pew Research Center. Five percent of all of the children arrested at the border since October are from a single city in Honduras, San Pedro Sula; both the city and the country have the highest murder rate in the world. The bulk of the children arriving in the recent surge are from Honduras, El Salvador and Guatemala, where homicide rates have risen by 99 percent in the last decade, according to one recent study. Those three countries are also among the poorest in Latin America.
In other words, what’s happening at the US-Mexico border looks more like a refugee crisis than the invasion the right wing describes. It’s true that the arrival of tens of thousands of children has overwhelmed Border Patrol stations and Health and Human Services’ shelter system. Accordingly, the administration says that moves to “streamline” the deportation process are being made out of humanitarian concerns, a claim that might hold up if streamlining referred to increasing the resources available to those children so that they could more quickly access legal counsel and get a fair hearing in court. The desire for an expedient solution, however, should not undercut their right to due process.
Obama is sending a convoluted message about his position on enforcement. Immigrant rights groups have long awaited the shift in policy he prefaced on Monday by announcing his intention to move unilaterally to “make the immigration system work better.” Now it’s becoming less and less clear what he mean by “better.” Having conceded that the GOP will block legislation for the foreseeable future no matter what he does, the president no longer has a political excuse for prioritizing a tough stance over humane policy. And yet, when it comes to kids at the border, Obama is advocating for weaker legal protections and a building-up of the country’s deportation machinery—a clear win for immigration opponents and the private companies running detention centers, but a bleak development for immigrants themselves.
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Among the many questions raised by the Supreme Court’s ruling in Burwell v. Hobby Lobby is how sweeping its legacy will be. Supporters of the decision have insisted that the ruling is “narrow,” as it explicitly addresses “closely held” corporations objecting to four specific types of birth control—including IUDs and Plan B—because the business’ owners consider them (inaccurately) to cause abortion. Besides, the Court argued, the government can just fill any coverage gaps itself, and it’s only women whom corporations are now permitted to discriminate against. “Our decision in these cases is concerned solely with the contraceptive mandate,” claimed Justice Samuel Alito, writing for the majority. “Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employers’ religious beliefs.”
Bullshit, is essentially what Justice Ruth Bader Ginsburg had to say about the majority’s claim to have issued a limited ruling. In her dissent, Ginsburg deemed it “a decision of startling breadth.” She noted that “‘closely held’ is not synonymous with ‘small’,” citing corporations like Cargill, which employs 140,000 workers. Even more alarming is the majority’s endorsement of the idea that corporations can hold religious beliefs that warrant protection under the Religious Freedom Restoration Act.
In fact, it only took a day for the Court’s “narrow” decision to start to crack open. On Tuesday, the Court indicated that its ruling applies to for-profit employers who object to all twenty forms of birth control included in the Affordable Care Act’s contraceptive mandate, not just the four methods at issue in the two cases decided on Monday.
In light of its ruling on Hobby Lobby and a related suit, the Supreme Court ordered three appeals courts to reconsider cases in which they had rejected challenges from corporations that object to providing insurance that covers any contraceptive services at all. The plaintiffs in all three cases are Catholics who own businesses in the Midwest, including Michigan-based organic food company Eden Foods. Meanwhile, the High Court declined to review petitions from the government seeking to overturn lower court rulings that upheld religiously based challenges to all preventative services under the mandate.
It’s bad enough that the Court privileged the belief that IUDs and emergency contraceptives induce abortion over the scientific evidence that clearly says otherwise. With Tuesday’s orders, the conservative majority has effectively endorsed the idea that religious objections to insurance that covers any form of preventative healthcare for women have merit. This development is not surprising, as it’s the logical extension of the premise that the intangible legal entities we call corporations have religious rights. That’s a ridiculous idea, certainly, but not a narrow one—no matter Alito’s assurance that he intends it to be used only to justify discrimination against women.
The cases that must now be reopened aren’t even based on junk science, just general pious resistance to women’s health services. And at least one of those cases is only tenuously about religious freedom. “I don’t care if the federal government is telling me to buy my employees Jack Daniel’s or birth control,” Michael Potter, the founder of Eden Foods told Irin Carmon. “What gives them the right to tell me that I have to do that? That’s my issue, that’s what I object to, and that’s the beginning and end of the story.” As one judge wrote, “Potter’s ‘deeply held religious beliefs’ more resembled a laissez-faire, anti-government screed.”
The hole that the Supreme Court tore in the contraceptive mandate can be repaired with a tailored fix, most likely by the Obama administration extending the same accommodation it offered nonprofit religious groups to women working for the closely held for-profit corporations implicated in the Hobby Lobby ruling. Under that work-around, insurance companies themselves—or, in some cases, the federal government—will pick up the tab for female employees’ contraception coverage when their employer opts out.
More vexing is the extension of the RFRA to corporations. Business owners now have a new basis for trying to evade anti-discrimination laws and their responsibilities to their employees. Religious liberty is already the rallying cry for conservatives looking for a legal way to discriminate against LGBT Americans; other business owners have tried to use religion to justify opposition to minimum-wage laws and Social Security taxes. Faith groups are already trying to capitalize on the Hobby Lobby decision out of court; on Wednesday, a group of religious leaders asked the Obama administration for an exemption from a forthcoming federal order barring federal contractors from discrimination on the basis of sexual orientation or gender identity.
According to Alito, courts have no authority to “tell the plaintiffs that their beliefs are flawed.” Where, then, are the boundaries? How will courts decide which beliefs are “sincerely held?” Alito asserts that the majority opinion provides “no such shield” for other forms of discrimination, but we have to take his word on it. The language of the ruling may be limited to contraception, but there are no explicit constraints on its underlying logic.
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It’s no secret that the floor has fallen out from beneath American workers. The minimum wage is now 25 percent lower than its peak in 1968. Collective bargaining rights are being stripped away. Businesses are downright stealing from their employees, to the tune of $185 million in 2008—three times more than what was stolen in all bank, gas station and convenience store robberies. Others are skipping out on their obligations by misclassifying their workers as independent contractors.
Given the political climate, the prospects for reversing the race to the bottom across low-wage industries seem a bit grim. There are, however, glimmers of success in the minimum-wage campaigns throughout the country. And there’s also a new bureaucrat in town, one whose role is little discussed but of real significance in the effort to restore eroded wages and workplace standards.
In early May, Boston University economist David Weil took over as director of the Department of Labor’s Wage and Hour division, where he’s responsible for enforcing a slate of statutes that set minimum requirements for employers and protect some of the nation’s most vulnerable workers. He’s the first permanent administrator in a decade, and was confirmed only after Senate Democrats changed the filibuster rules so that a simple majority could approve a nominee. Weil previously advised the division on strategic labor law enforcement, and is known for his work on the franchise industry and on labor violations in the construction industry.
The laws under Weil’s oversight—including the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act—are the bedrock of American labor rights, but for decades the agency has been criticized for lax oversight. The Government Accountability Office issued a scathing report on the Wage and Hour division in 2009, writing that the agency “left thousands of actual victims of wage theft who sought federal government assistance with nowhere to turn.” The result, the GAO wrote, “is unscrupulous employers’ taking advantage of our country’s low-wage workers.”
Weil is keenly aware of the sorry state of low-wage labor, and the challenges facing his division. “We are in a period of time where working people have experienced—for a long time—the diminishment of their voice,” he said in an interview.
Weil described the division’s challenges as two-fold, the first being basic resource constraints. Historically, the bulk of Wage and Hour’s enforcement activity was investigating individual complaints—a strategy that amounted to a game of whack-a-mole, considering that the DOL has only 1,100 investigators to oversee 135 million workers in more than 7 million businesses.
Perhaps more critical are structural changes in the workplace that have occurred over the past two decades. As Weil explains it, market pressure pushed firms to farm out more and more activities that weren’t considered “core” to their business, relying on third-party contractors and franchise systems. Weil has studied this trend extensively; he calls it “fissuring,” referring to a rock breaking apart. (He credits his wife, a geologist, for the term.)
“The more a rock fissures, the fissures get deeper. Once you started shifting out this work to other parties, those parties in turn started shifting out the work,” he explained. “The employment relationship gets pushed further and further out to firms that are in more head to head competition.… Practices like off-the-clock work start popping up more and more and more and start defining the competitive position for the firms operating in those industries.” The effects cascade, as cheaters make it more difficult for responsible employers to compete. “The costs, obviously, are borne by the workers who are deprived of their wages, or sometimes their rights.”
Weil is now presiding over a major shift in how the division polices the workplace. Although the department will still respond to individual complaints, Weil is directing the bulk of his resources to targeted investigations in industries and sectors where labor exploitation is endemic. Those industries tend to employ many low-wage, low-skill or undocumented workers who, Weil said, “because of that are much more or much less likely to exercise the rights the law gives them to do things like complain.”
Weil said the division will also put extra effort into educating workers about their rights, and employers about the law, in the hopes that outreach will improve compliance. “But if we find employers…who are essentially competing on the basis of not complying and are playing the kind of games we see in, let’s say, misclassifying employees as independent contractors…there we’ll use the full range of enforcement tools we have available.”
The aim of the targeted strategy is ambitious: to not just resolve complaints against individual employers, but to change norms and employer behavior in entire industries. “In all of this work, whether it’s thinking about how we allocate our time to outreach, how we use our enforcement tools, how we respond to complaints, we’re constantly asking these questions: What’s the impact? How is this action ultimately going to bring this industry or this sector or this part of the country into greater compliance with the law?” Weil said.
Weil will also play a key role in raising standards, not just enforcing them. He’s responsible for a portfolio that includes raising the salary threshold at which employees are eligible for overtime pay, raising the wage floor for federal contractors, and implementing an extension of minimum wage and overtime protections to home healthcare workers. With action to lift the minimum wage and other standards across the economy unlikely to pass the GOP-controlled House at any point soon, it’s the Wage and Hour division that will leave a greater mark on the American workplace.
Weil’s record as a scholar and critic of exploitative employment structures is some reason for optimism about his ability to make the Wage and Hour division a more effective ally for American workers. Indeed, the president of the International Franchise Association (a trade group that is currently suing to block Seattle’s $15 an hour minimum wage hike), called his views “downright frightening.”
“He’s the most knowledgeable wage and hour administrator in 35 years,” said Ross Eisenbrey, the vice president of the Economic Policy Institute, of Weil. “He’s really devoted himself to studying labor standard issues, and enforcement of wage and hour issues in particular.”
Workplace trends like wage theft and misclassification may seem like small issues compared to the scale of the gap between rich and poor in the US. But the race to the bottom is one of the defining elements of the American inequality crisis, and its certainly a place to start. The enforcement and regulatory agenda that Weil oversees is, he said, fundamentally “about redressing what has become an increasingly problematic political climate in which to address inequality.”
He continued, “People feel how out of whack we’ve gotten in the specific case of the minimum wage, but I think more generally people understand that standards in our workplace have eroded. I feel fundamentally—maybe this is partly my roots as an educator—that an important part of what we do is to make the connection with what people feel in their daily or weekly or monthly budgeting, and some of these trends and why we need to turn them around. Because this has been going on for too long.”
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When Dana Jones first heard about payday loans, she was struggling to pay for prescriptions for her mother, who had been struck suddenly with mental illness. She borrowed a small amount that first time—just $50, she remembers—and paid it back when she got her next paycheck. It seemed simple enough, so she began drawing regularly on short-term credit. “I really thought it was a loan that worked like any other loan I had gotten from finance companies,” said Jones, who lives in Baton Rouge, Louisiana. “I just didn’t know.”
What Jones didn’t know is that the triple-digit interest rates charged by many short-term lenders would soon push her into a spiral of debt. “You have one loan, and you end up going to another payday lending company to pay for it, and then you have another one,” she explained. At the low point of a debt trap that lasted for more than a decade, Jones owed money to twelve different creditors. She had no trouble finding new lenders; there are more than twenty on just one street in Baton Rouge, sometimes several on the same block. “I was just drowning in this, and I didn’t see my way out,” Jones remembered.
Jones was almost lucky compared to Thelma Fleming, another Baton Rouge resident who pawned her jewelry, had her checking account shut down and lost her car trying to keep up with a string of loans she took in order to make ends meet after she lost one of her two jobs. “For me, it was devastating,” she said. “It got the best of me to the point where I considered suicide.”
Some 200,000 households in Louisiana borrow from short-term lenders every year, as do roughly 12 million people in the United States. There are about as many payday loan stores in the United States as there are McDonald’s and Starbucks. Typically under $500, the loans are intended to provide small amounts of cash to tide borrowers over until their next paycheck. With interest rates as high as 700 percent, many borrowers end up under a mountain of unpayable debt instead. In Baton Rouge, 20 percent of bankruptcy cases involve payday loans.
“It’s a huge issue, and not one people wanted to talk about,” said Broderick Bagert, an organizer with Together Louisiana, a coalition of religious and civic groups that launched a campaign for stricter rules for payday lenders during the last legislative session. Their push “scared the hell out of the industry,” Bagert said wryly, noting that the number of lobbyists working on its behalf jumped from a handful at the beginning of the legislative session to more than fifty by its end. In late April, the state Senate rejected the bill.
“There is no doubt in anybody’s mind about where the people were, but the lobby this time around had the resources to buy the vote,” said Bagert.
Louisiana has become one of the fiercest battlegrounds in a protracted fight between consumer advocates and the payday lending industry, which exploded during the early 2000s after decades of deregulation and an influx of easy money from Wall Street. The difficulty of establishing state-level protections for borrowers is not unique to Louisiana, and consumer advocates have for years called on the federal government to cap astronomical interest rates.
Finally, action is on the horizon. In a hearing last week, the director of the Consumer Financial Protection Bureau—the watchdog agency established in the wake of the financial crisis—told members of the Senate Banking Committee that new rules for payday lenders would come out sometime in the fall.
“[The CFTC] is very open and very clear that they want to address this problem,” said Bagert, whose group brought their concerns about payday lending directly to Cordray in a field hearing in New Orleans on June 12. “The question is, will they propose regulations that are strong enough?”
Beyond an outright cap on interest rates, consumer advocates have suggested other rules that prevent long-term indebtedness, such a mandatory waiting period between loans, or limiting the number of loans someone can take out in a year or the amount of time a borrower can be in debt and still be eligible for a new loan. Other measures could include requiring lenders to determine whether a loan is actually affordable for a borrower, and stricter reporting standards.
The most critical test will be whether the new rule is expansive enough to keep payday lenders from concealing predatory practices by packaging them as other types of loan products, a tactic the industry has used to thwart several states’ attempts to regulate it. In Ohio, for example, a recent court decision allows payday lenders to evade a 2008 law intended to cap interest rates at 28 percent by offering cash under a mortgage-lending license. A loophole-laden rule similarly undercut the Defense Department’s attempt to crack down on small-dollar lenders that target members of the military.
Ohio Senator Sherrod Brown has been particularly vocal about the danger of a law written too narrowly. “Because most small-dollar, short-term loans possess three of the ‘Four Ds’ that negatively affect consumers—deception, debt traps, and dead ends—the CFPB must address the full spectrum of products being offered to consumers,” Brown wrote in a letter sent to Cordray on Monday. He encouraged Cordray to extend the new rules to auto title, online and installment loans.
In the June 18 hearing, Cordray assured Brown that the CFPB was working “to make sure that what we do won’t be made a mockery of by people circumventing [the new rules] through just transforming their product slightly.”
Dana Jones and Thelma Fleming will be watching from Louisiana. Both were active in the legislative campaign last session, and plan to advocate again this year for bolder action from the state. “I don’t want it to happen to anyone else the way it happened to me,” Fleming said. “I made a very bad choice, but sometimes it’s because we think we’re helping ourselves.”
Both women have finally paid off their debts, but Jones has several relatives trying to untangle themselves from what they also thought would be a short-term relationship with payday lenders. Those businesses claim they won’t survive interest rate caps or other regulations, and that as a result, people who are down on their luck will be cut off from short-term credit. Jones, however, sees the $30 billion-a-year industry’s motives as less than altruistic.
“What they’re doing—they’re robbing people,” she said. “This is America; everybody has a right to have their own business. What people do not have a right to do is make a profit that is demoralizing.”
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In a broad, unanimous decision, the Supreme Court ruled on Wednesday that police must have a warrant before searching a cellphone belonging to a person who’s been arrested.The ruling was particularly striking for the extent to which the Court went in affirming the idea that technological change demands a reconsideration of privacy protections—an assertion that could have big implications in the debate about the government’s data collection programs.
“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,’” wrote Chief Justice John Roberts. “The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.”
The ruling covered two cases in which police used information found on arrestees’ cellphones to tie them to a crime. In the first, David Riley was pulled over for driving with expired registration tags, and was subsequently found to have a suspended license and concealed handguns under the hood of his car. When officers searched the smart phone in his back pocket they discovered photos and other information tying him to the Bloods gang. Police traced the guns to an earlier shooting, for which Riley was later convicted; his prison sentence was “enhanced” because of his gang connection.
In the second case, police officers searched a regular flip phone belonging to a man named Brima Wurie, who’d been observed making a drug deal. Officers traced a number listed in Wurie’s phone as “my house” to an apartment complex, which they obtained a warrant to search, finding crack cocaine, weapons and cash.
Both plaintiffs argued that the warrantless phone searches violated their Fourth Amendment rights to be “secure in their persons, houses, papers or effects.” Legal precedent has granted police some leeway for searching an arrestee and the area within his reach, primarily to check for weapons and to keep evidence from being destroyed. But privacy advocates argued that because cellphones now contain vast troves of personal data—“well over a football field’s length of books” in some cases, according to one brief—searching them constitutes a breach of privacy serious enough to demand a warrant.
The Court concurred. “The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet,” Roberts wrote. “Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house.”
According to the ruling, police may inspect a phone to make sure it’s not concealing a weapon, but generally they may not look through its contents without a warrant.
The fact that the Court passed over several suggested rulings that were much more limited in their defense of civil liberties is particularly striking. There was some speculation that the Court might make a distinction between the two cases based on the type of phone, and create separate rules for searches of smart phones and conventional phones. The Court rejected such a distinction, as well as the government’s suggestion that officers be allowed to search phones in cases where they believe it contains evidence of the crime for which its owner was arrested, or that they only be allowed to search areas of the phone which they “reasonably” believe to have information about a crime. In a blunt rebuke, Roberts argued that those standards “would prove no practical limit at all when it comes to cellphone searches.”
Beyond criminal justice, the ruling may have significant implications for the government’s surveillance activities. A thirty-five-year old Supreme Court ruling known as Smith v. Maryland, which found that records held by a third party (like a phone company) are not protected by the Fourth Amendment, has been used to justify many forms of surveillance, including tracking a cellphone’s location and the National Security Agency’s dragnet phone records program. In recent years, several judges have argued that the precedent set by Smith does not make sense in the digital age.
The Supreme Court’s ruling on cellphone searches casts yet more doubt on Smith’s role in the age of big data. Based on the Smith ruling, the government had argued that officers should always be able to search a phone’s call log, just as they searched Wurie’s. The Court resoundingly rejected that suggestion: “There is no dispute here that the officers engaged in a search of Wurie’s cell phone. Moreover, call logs typically contain more than just phone numbers; they include any identifying information that an individual might add, such as the label ‘my house’ in Wurie’s case.”
Critics of government surveillance were quick to note the ruling could be significant in the debate over data collection. “The next step, in my view, is to treat GPS information the same way,” Senator Ron Wyden said in a statement. “I aim to use this decision as a springboard to secure greater privacy rights in the days ahead.”
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There isn’t much to see driving south on Evangeline Throughway through Lafayette, Louisiana, besides a few dilapidated houses and, at the intersection with 10th Street, a bright red billboard. A photo of Senator Mary Landrieu in a red jacket, her blond hair swept across her forehead, fills its right side. “100% pro-abortion voting record,” the billboard reads, and directs passerby to a website titled “Too Extreme for Louisiana.”
Landrieu’s campaign is one of the closest and most closely watched contests of the midterm elections, as it could decide which party controls the Senate. Louisiana has no primaries, so Landrieu is in a four-way scrum to avoid a runoff. Her main competition is Bill Cassidy, a Republican congressman and doctor. Conventional wisdom says that Obamacare and energy are the key issues for voters in Louisiana, where Barack Obama is deeply unpopular and petrochemical interests have a stranglehold on state politics.
There’s little daylight between Landrieu and Cassidy in their stance on energy and business—so little that many of the industry groups known for supporting establishment Republicans are betting on Landrieu and the weight she pulls as chair of the Energy and Natural Resources Committee. The politics around Obamacare are shifting in Landrieu’s favor, too. Just last week the state’s Republican senator David Vitter passed on an opportunity to hit for Cassidy—whom he supports—when he said he might be open to expanding Medicaid through the Affordable Care Act.
In this heavily Catholic state, women’s health could prove a more meaningful point of divergence between the candidates. Cassidy is deeply conservative when it comes to abortion; he opposes it even in cases of rape and incest. On Sunday, members of his staff attended an annual breakfast in Baton Rouge sponsored by Right to Life, the group responsible for the anti-Landrieu billboard in Lafayette as well as several others in Shreveport and on the interstate that runs through Southern Louisiana. The Susan B. Anthony List plans to spend more than $1 million against Landrieu on a ground campaign and its own ads, which describe Landrieu’s vote for the Affordable Care Act as a vote for “taxpayer-funded abortion.”
Access to abortion has become increasingly restricted in Louisiana, as it has in other midterm battlegrounds like North Carolina. In early June, Louisiana Governor Bobby Jindal stood in front of a Baptist church in the city of Monroe and signed a bill that could shutter most of the state’s abortion clinics, in an echo of provisions passed in Texas, Mississippi and Alabama in recent years. The law, which requires abortion providers to have admitting privileges at nearby hospitals, emerged in a legislative session that failed to advance several measures intended to support women’s health and economic security, including the Medicaid expansion, a minimum-wage increase and an equal pay act.
Democrats in other swing states are highlighting these kinds of attacks on women as an illustration of the GOP’s extremism, but so far Landrieu has not made gender an issue in her campaign. In North Carolina, Kay Hagan is targeting female voters in her race against Tom Tillis, the speaker of the North Carolina House whose accomplishments include the infamous “motorcycle abortion bill.” Colorado senator Mark Udall has a new ad out highlighting his opponent’s anti-choice record. In Kentucky, Alison Lundergan Grimes hammered Mitch McConnell for being “on the wrong side of every woman’s issue out there.” In turn, the Democrats’ bid to keep the Senate is getting a boost from liberal women’s groups like Planned Parenthood Action Fund and EMILY’s LIST, who are putting millions behind female candidates, Hagan in particular.
The political landscape is very different for Landrieu. “In other circumstances, she could make inroads with conservative women who care about women’s issues. But if she can be construed as part of establishment that is pro-choice, that trumps everything,” said Pearson Cross, a political scientist at the University of Louisiana in Lafayette.
Cross credits Louisiana’s sharp rightward turn in the last decade not only to anti-Obama sentiment but also to the GOP’s leveraging of religion to flip voters in the heavily Catholic south- and central-western parishes known as French Acadiana, formerly a blue stronghold.
“The Republican Party picked that lock by appealing to voters on the basis of abortion,” said Cross. “Catholics [in Louisiana] are now voting in majorities for Republicans, which is something they had never done before.” That switch was evident in the 2008 presidential election, in which 70 percent of Louisiana Catholics voted for John McCain.
In this context, it makes sense that Landrieu would try to avoid a conversation about abortion. She describes her own stance as centrist; she supported a late-term abortion ban, but otherwise has defended abortion rights on the principle of separation of church and state. It was on that basis that she called the new restrictions signed by Jindal “very troubling,” arguing that “the last place the government needs to be is in the church, in the doctor’s office or in the bedroom.”
Still, given that Democrats see women as being key to the control of the Senate, it’s notable that Landrieu isn’t yet aggressively courting female voters via her record on less controversial issues like equal pay legislation, which she has pushed for. So far she’s chosen instead to paint herself strictly as a gender-neutral champion of the oil and gas industry, and the black sheep of the Democratic Party. As a result, she is not drawing on the support of the liberal groups playing heavily in other states. She is the only female Democratic incumbent in the Senate who has not been endorsed by EMILY’s list. Planned Parenthood Action is also not supporting her campaign at this point, though a spokesperson said the group is “keeping an eye” on the race.
Meanwhile, conservative groups like Americans for Prosperity are trying to speak to Louisiana’s women via targeted ads, and Cassidy has indicated that he’ll put abortion front and center. One recent poll showed Landrieu losing ground among white female Democrats. As the race picks up, it will be interesting to see whether Landrieu engages in a fiercer fight for this constituency.
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“[W]e are nothing but camping boy [scouts],” Bowe Bergdahl wrote sometime in the year before he wandered away from a remote Army post in eastern Afghanistan with a knife, a camera and a diary, and was captured by the Taliban. “Hiding from children behind our heavy armored trucks and our c-wire and sand bagged operating post, we tell our selves that we are not cowards.”
“Coward” is precisely the accusation that right-wing politicians and pundits have leveled against Bergdahl since news broke that the Obama administration had freed five Taliban commanders detained at Guantánamo Bay in exchange for his release. After previously criticizing Obama for not doing enough to bring Bergdahl home, the right immediately launched a grimy campaign to prove that Bergdahl wasn’t worthy of the swap; that he was the wrong kind of soldier, a deserter.
On Wednesday The Washington Post published excerpts from his journals, e-mails and other writings that complicate the right’s depiction of Bergdahl, who is still hospitalized in Germany. They “paint a portrait of a deeply complicated and fragile young man…struggling to maintain his mental stability,” the Post wrote. The documents were provided by Kim Harrison, reportedly a close friend to Bergdahl who said she was concerned by the way the media had portrayed him. The report also revealed that before joining the Army, Bergdahl received an “uncharacterized discharge” from the Coast Guard before completing basic training. Harrison and another friend told the Post the discharge was related to psychological issues.
The excerpts in the Post don’t answer the question of why he walked off base, an act for which the military justice system may still discipline him. It does suggest that the circumstances surrounding his disappearance are more complicated than what those accusing him of calculated desertion present. But the Post account has ignited a new sort of speculation, about whether Bergdahl was mentally fit for service to begin with. In 2008, the year he enlisted, the Army was so desperate to sign up new recruits that it issued waivers for criminal records, health issues and other problems to one out of every five recruits. Though it’s not clear whether Bergdahl received a waiver, in his 2012 profile of Bergdahl, Michael Hastings connected relaxed recruitment standards with the discipline problems endemic in Bergdahl’s unit.
The media now seems to be latching on to the suggestion of Bergdahl’s “mental instability” much as in the case of Chelsea Manning, who was also described as fragile and troubled. In Manning’s case the relentless focus on personal issues precluded a real reckoning with the “incredible things, awful things,” that Manning discovered the US military had done in Iraq, abuses that she has said motivated her to release hundreds of thousands of classified documents to Wikileaks.
Bergdahl is not a whistleblower, but e-mails he sent to his parents during his tour in Afghanistan indicate he was struggling not just with psychological issues but also with a dysfunctional unit and with his conscience. “I am sorry for everything here,” Bowe wrote after seeing an American military vehicle run over an Afghan child. “These people need help, yet what they get is the most conceited country in the world telling them that they are nothing and that they are stupid, that they have no idea how to live.” He continued, “We don’t even care when we hear each other talk about running their children down in the dirt streets with our armored trucks.… We make fun of them in front of their faces, and laugh at them for not understanding we are insulting them.”
To the right, this sort of clear-eyed critique of America’s military hubris is more damning than the idea that Bergdahl was psychologically unfit. Bergdahl may have struggled with mental illness, and if that’s the case, then certainly the issues of his recruitment and whether he had access to proper care become pertinent. But there is something uncomfortable about the impulse to defend Bergdahl with suggestions of mental unsoundness; in it are echoes of America’s striking eagerness to pathologize dissent. There could be a valid debate about whether leaving one’s post is an acceptable form of expressing it, or if there were really other options. But as President Obama pushes to prolong military engagement in Afghanistan, it may be more useful to stop asking what went wrong with Bergdahl, and instead consider what went wrong with the war.
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When it comes to healthcare, Southwest Virginia is a desperate place. Many of the state’s poorest and sickest live in that pocket of coal country between US Route 19 and the Kentucky and Tennessee borders, where it’s so hard to see a doctor that a free mobile health clinic held each July at a county fairground draws hundreds. “Southwest Virginia is one of the worst places we go to,” said Stan Brock, the founder and president of Remote Area Medical, which runs that clinic and others throughout the country.
That corner of Virginia also encompasses the district of Phillip Puckett, who served as a Democratic state senator until Monday, when he suddenly resigned. His decision to step down appears to have been the result of a bribe offered by Republican colleagues bent on stopping the expansion of Medicaid. Puckett’s resignation gave Republicans the one seat they needed to take control of the Senate; it also put him in the running for a paid post on a state tobacco commission that is controlled by some of the very same Republicans. And it cleared the way for the chamber to appoint his daughter to a state judgeship.
By stepping down, Puckett effectively ended a months-long battle over the fate of the 400,000 Virginians who are too poor to buy insurance but don’t meet the state’s restrictive eligibility requirements for Medicaid. The state Senate had been on course to vote to expand the program under the Affordable Care Act, setting up a budget showdown with the Republican-controlled House. But with the GOP now in control of the Senate, both chambers are expected to pass a spending plan on Thursday that does not include the expansion.
The advocacy group ProgressVA called for an investigation of allegations of a quid pro quo between Puckett and Republicans, who deny they made any sort of deal. Puckett cited “recent issues that have developed in our family” as grounds for his resignation, and said he would withdraw his name from consideration for the job on the tobacco commission. Virginia Attorney General Mark R. Herring announced that he does not see an “investigative role” for his office.
The question of what prompted Puckett’s mid-term resignation is tantalizing, and potentially important, but it’s also beside the point. The true scandal is that hundreds of thousands of Virginians—including more than 20,000 of Puckett’s own constituents—will be denied health insurance.
The Medicaid showdown in Virginia was particularly heated because the legislature was so closely split. But Republicans all across the country have gone to insane lengths to keep millions uninsured, or to justify doing so. In Louisiana, for example, the state sued MoveOn.org for a billboard criticizing Governor Bobby Jindal’s opposition to the Medicaid expansion. Republicans in Utah are trying to embed work requirements into a private alternative to the expansion, a stipulation that would likely make the plan unworkable. In Arkansas, Republicans tried to roll back the Medicaid alternative that passed last year by refusing to reauthorize its funding. Although the program was finally re-approved, conservative lawmakers—who are steadily gaining ground in the Arkansas legislature—indicated that they’ll attack it again next year.
For years now Republicans have trotted out the same reasonable-sounding lies to fight the expansion, namely the myth that states can’t afford it. The real callousness that undergirds their ideological campaign was made clear this year, however, by a handful of state senators in Missouri, who gathered on the Senate floor to make it clear that there would be “no path” forward for the expansion. “Why is this somehow our problem?” one lawmaker asked. “It’s not happening,” said another. “Go find something else to do.”
There simply isn’t anything else that the millions of Americans who fall into the coverage gap can do to afford healthcare. Expanding Medicaid won’t fix all of the health problems in Southwest Virginia; a shortage of providers serving rural and low-income patients also challenges the region. But that’s no reason to deny insurance to people, particularly when the costs of doing so will be born almost entirely by the federal government, not the state. The persistence of myriad other issues to be dealt with is simply an indicator that people would be better served if lawmakers spent less time devising elaborate schemes to keep the poor uninsured and found something else to do, themselves.
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Last week, the attorney Jon Eisenberg was trying to get in touch with a client of his—a Syrian named Jihad Ahmed Mujstafa Diyab, who has been detained at Guantánamo Bay for nearly twelve years without trial. Twice a day for months, medical staff and guards have dragged Diyab from his cell, strapped him in a chair, and forced a tube down his throat, ostensibly to ensure that he doesn’t die during a prolonged hunger strike.
Eisenberg had trouble reaching Diyab. All telephone communication between detainees and their lawyers had been shut down, Eisenberg says—presumably because President Obama was in the midst of delicate and secret negotiations with the Taliban over exchanging five other men held at Guantánamo for an American prisoner of war named Bowe Bergdahl. (A spokesperson for Joint Task Force Guantanamo said he could not confirm or deny Eisenberg’s account.)
The five Guantánamo detainees, reportedly Taliban officials, have now been escorted to Qatar, where they will be able to walk freely on the streets. Left at the military prison are seventy-eight other men who have been cleared for release yet remain in interminable detention. Most, like Diyab, were cleared more than four years ago. Though Obama continues to profess his commitment to closing the prison, and though constraints placed by Congress on his ability to do so have weakened considerably, his administration has not demonstrated the resolve to transfer the remaining prisoners.
“From the administration’s perspective, I think they must have seen more urgency from Bergdahl,” said Eisenberg. “From my client’s perspective, it’s plenty urgent. He’s being tortured every day.”
Just weeks ago the president of Uruguay, Jose Mujica Cordano, offered to accept six of the cleared men as refugees. Secretary of Defense Chuck Hagel said on May 28 that he would decide to reject or accept the proposal “fairly soon.” Now that Obama has shown a willingness to push legal boundaries in order to move detainees whose designation as a threat seems at least plausible, the circumstance of men like Diyab, who the government never intends to charge with a crime, is even more indefensible.
“What’s changed is that the president has finally taken the initiative,” said Wells Dixon, a senior attorney at the Center for Constitutional Rights, which represents eight Guantánamo detainees. “What we’re hoping is that he will continue to take bold steps to transfer the remaining men, who are not nearly as complicated or as controversial.”
The administration’s legal authority to move the men who’ve been cleared for release is much clearer than it appears in the Bergdahl swap. According to the National Defense Authorization Act passed last year, the secretary of defense needs only to notify Congress of any prisoner transfers thirty days beforehand.
The most significant complication is “the Yemen problem.” Yemenis make of the bulk of the men who’ve been cleared for release, but none has been repatriated since 2009. Obama announced more than a year ago that he would lift a ban on repatriating Guantánamo’s Yemeni prisoners, a moratorium he himself imposed after a man who’d allegedly trained with an Al Qaeda affiliate in Yemen tried blow up an airplane bound for Detroit using bomb hidden in his underwear. US and Yemeni officials have discussed a plan to move prisoners to a yet-to-be-built detention center outside the capital Sana’a, but the proposal faces funding issues, and there are outstanding questions about whether it would function as a rehabilitation center or merely another prison.
“That is the biggest barrier, figuring out where to send the Yemenis,” said Andrea Prasow, who works on detainee issues for Human Rights Watch. From her perspective, concerns about safety don’t justify indefinite detention. “There’s a possibility that anyone on the streets in Yemen—or anywhere—can pose a risk to us, but we don’t lock those people up,” she said. “There’s only one way to close Guantánamo, and that’s by sending people home.”
Prasow is hopeful that the Bergdahl deal “signifies a sea change” in the president’s willingness to act swiftly to relocate the remaining Guantánamo detainees. “There’s all this political backlash, but the administration is going to weather it. Meanwhile there’s tremendous backlash around the world about the fact that Guantánamo is still open.”
Eisenberg, who represents three other prisoners along with Diyab, is less optimistic. “You would think that [transferring the cleared detainees] would be the easier decision for Hagel to make,” he said. “There are different pressures brought to bear in the Bergdahl case.”
Ultimately, the Bergdahl case illustrates that the greatest barriers to closing Guantánamo are political, not legal or logistical, and that they remain in place only so long as the president allows. Republicans who would like to keep Guantánamo open will no doubt channel the right-wing outrage over the release of the five Taliban prisoners to their own ends. But their bluster has no bearing on the president’s authority to send home men whose freedom is both recommended by US officials, and long overdue. There’s simply no way to close Guantánamo without doing so.