TRUMP’S WORLD BANK NOMINEE IS UNQUALIFIED

Although the United States has the largest voting block (16%) at the World Bank, this does not mean that the choice of David Malpass will not and should n0t meet with a challenge. This is a terrible pick for a simple reason, Malpass like all Trump appointees does not believe in the very institutions that they are charged to run. We have seen this time and time again. A process of destruction from within.

Emerging markets and the nations within them can not afford a known critic at the helm of the World Bank. Malpass will create tension with China, pull back on needed investment in the poorest nations and try to put the indicia of Trumpisim on the World Bank. The clear preference of the Trump Administration is isolationism and this is not the policy that the World Bank needs.

If there is a challenger from a developing region it is hoped that he or she can muster the votes to stop Malpass although this is highly unlikely. In the alternative the nomination of Malpass should be withdrawn. Trump administration views on climate change and development resources prove that Malpass is the hatchet man for these misguided policies. He talks a good game, but he has the Trump isolationist, America First agenda as his real focus. This is a terrible nomination and it must be opposed.

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THE DUE PROCESS RIGHTS OF DETAINED CHILDREN

In April of 2018, the Office of Refugee Resettlement (ORR) agreed to share information on sponsoring families of detained children with Immigration and Customs Enforcement (ICE). This information was intended to be obtained through the reunification petition process to assure that detained children went to the proper sponsors and families. It was never intended for anything else. The sharing of it with ICE was illegal and a violation of the Due Process rights of these children.

The misuse of this information to target and arrest undocumented immigrants has led to more children staying in detention. Without question this is a violation of the due process rights of these children. This is a purposeful delay designed to frustrate the process of resettlement through fear.

Congress’s mandated purpose was to remove these children from detention as quickly as possible through a procedure. That procedure has been purposefully manipulated and has resulted in a denial of due process for these children. Congress enacted laws specifically to promptly reunite these children with loved ones in the United States, while their immigration cases are adjudicated. However, the current manipulation of this mandate by ORR has resulted in a lack of notice and opportunity to be heard. All of this in an effort to find anyone who is undocumented that may be connected to these children that ICE can arrest.

This is not about ICE arresting undocumented persons, that’s their job, this is about the illegality of the information that they have received through ORR and the misuse of that information in a denial of the due process rights of these detained children. The impact of these unconstitutional and illegal actions by ORR and ICE have resulted in fewer individuals coming forward to sponsor detained children.

These illegal actions violate the Constitution’s Due Process Clause and the Administrative Procedure Act’s (APA) prohibition on unreasonable delays and arbitrary and capricious agency conduct. Even though there are court cases currently dealing with these issues, it is important to speak out about them and shine a spotlight on them that may change behavior or facilitate Congressional intervention. It’s imperative that both occur.

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FIRST AMENDMENT RIGHTS AND PUBLIC ACCESS TV

The First Amendment prohibits the government from censoring free speech. The question is when is a private company standing in as the government? When private companies have a government function, they fall under the state action doctrine which assures that the company in question adheres to constitutional standards.

A state action inquiry can determine whether private conduct can “be fairly attributable to the State.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982); see also Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974) (formulating the inquiry as whether the action “may be fairly treated as that of the State itself”).

In the case of public access tv, there is a clear government role starting with the Cable Communications Policy Act of 1984 (the “1984 Cable Act”) which requires that cable operator’s designate channel capacity for public, educational, or government (“PEG” or “public access”) use. 47 U.S.C. § 531(b). Even before we get to the point of channel capacity a cable operator must obtain a franchise license from a local government and that government may “enforce any requirement in any franchise regarding the providing or use of [public access] channel capacity.” Id.§ 531(c).

The Supreme Court has defined state action as “necessarily following upon ‘state participation through any arrangement, management, funds or property.’” Burton v. Wilmington Parking Auth., 365 U.S. 715, 722 (1961) (quoting Cooper v. Aaron, 358 U.S. 1, 4 (1958). Cable operators are in a clear arrangement with governments and are subject to the requirements of the 1984 Cable Act as it pertains to public access tv. In other words, the relationship is such that the cable provider steps in the shoes of the government for the purpose of offering public access and therefore is subject to the state action doctrine.

A cable provider cannot censor public access tv that is educational or provides a point of view different than that of the cable company. The government cannot censor free speech due to the first amendment and in the case of public access tv the cable provider is acting as the government or an entity of the government and is thus subject to the first amendment.

This is not a choice that the cable provider has as a private company. This is not like a dress code this is access to the public airwaves as dictated by federal law where a private company steps into the shoes of the government to offer that access.

The Supreme Court has held that nominally private action should be treated as state action when it “becomes not [the purportedly private actor’s] voluntary choice but the State’s choice.” Barrows v. Jackson, 346 U.S. 249, 254 (1953). The option to dictate what and what does not belong on public access is not voluntary and therefore cannot be censored by cable providers.

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THE FOURTH AMENDMENT AND EMAIL

A person has a reasonable expectation of privacy as it pertains to their emails. This includes situations where a service provider turns over email information to the government. In order for law enforcement to go through an email account they need a warrant first. This is a well established principle and not a new development. In fact it is standard procedure with law enforcement agencies to obtain a warrant first.

The issue is whether or not a warrant is needed if the email account holder breached a service agreement with the provider. Did such an alleged breach nullify the need for a warrant? The answer is no and there no nexus between law enforcement warrants and a civil contract breach that can change your Fourth Amendment rights. The Fourth Amendment protections for emails covers not only a specific email that may have breached a service agreement, but the years or decades worth of emails that may be in an account that would be subject to a search.

A service agreement does not change a user’s reasonable expectation of privacy. There have been cases where the government has argued that a breach of a service agreement nullifies the reasonable expectation of privacy and thus the Fourth Amendment rights of the account holder.

The idea of a reasonable expectation of privacy means that email accounts that contain legal content should not be subject to a broad search based on one email that breached a service agreement. Years of private correspondence would be subject to a unreasonable search based on one email that violated a civil agreement if this were true. By any standard that in and of itself is unreasonable.

Minus a third party service agreement breach, common searches that are not based on an imminent threat are typically handled by law enforcement in a routine manner. They get a warrant and have no qualms about doing so. The arguments that have been advanced that a breach of a third party service agreement nullifies the Fourth Amendment right to privacy and the requirement of a warrant prior to a search is ridiculous.

This is an argument advanced by some with radical views of police power not reasonable people who day in and day out do their jobs in law enforcement and do the right thing by obtaining a warrant. If anything such arguments only make the job of law enforcement officers more difficult by injecting a civil matter into criminal matters. This is a flawed argument and a horrible mistake.

The answer is no nexus between law enforcement warrants and a civil contract breach exist that can nullify the Fourth Amendment protections for email searches.

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WIOSNA MEANS SPRING

The government of Andrzej Duda is finally going to receive a challenge to its repressive policies. Robert Biedron a former lawmaker has launched a new party in Poland ahead of this years elections. Biedron most recently served as mayor of Slupsk in northern Poland and has been a staple in politics since 1990s.

Duda and his Law and Justice party have tampered with the independence of the Polish judiciary, made if difficult for NGO’s and the media to do their jobs and jailed protesters for participating in peaceful assemblies. Furthermore, Duda has placed barriers to the accessibility of safe and legal abortion.

Under Duda and the Law and Justice party, Poland has been cited for refusing entry of asylum-seekers at a border crossing with Belarus. These reports have prompted the European Court of Human Rights to investigate and find asylum applicants were repeatedly denied entry to seek international protection from forcible return to a country where they were at risk of persecution.

Biedron has vowed to form a Justice and Reconciliation Commission to hold Law and Justice’s leader and others to account for allegedly violating “the freedom and rights enshrined in the constitution.” The prospect of such a commission represents a new opportunity to redeem and renew basic principles of respect and the rule of law.

The possibility that Biedron’s new party Wiosna, or “Spring,” can stop the human rights abuses of Duda and the Law and Justice party is itself a reason to feel some degree of hope. Duda, is surrounded by discredited corrupt ex-communists. His policies particularly on migration are at odds with the EU and his tenure has been plagued by one constitutional crisis after another.

The bottom line is that Duda plays fast and loose with the law and that guarantees violations of rights. Biedron is a reformer that will be more responsive to what is required of modern-day leaders. His presence alone should give a warning that Spring is coming to Poland.

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EL SALVADOR TURNING TO THE BALLOT RATHER THAN THE BULLET

The history of El Salvador has been bloody and chaotic. A civil war that ended in 1992 left the nation economically vulnerable and ruled by only two political parties. These parties, Farabundo Marti National Liberation Front (FMLN) and Nationalist Republican Alliance (ARENA) will face off Sunday in an election focused on tackling corruption.

Rather than turn to violence, El Salvador has matured as a democracy and is now turning to the ballot and possibly a third party candidate. Nayib Bukele a former mayor has capitalized on the anti-establishment movements that have recently been successful in the region. Bukele is known as a reformer who will fight corruption while his opponent ARENA’s Carlos Calleja is seen as the establishment.

What makes this a unique election is that the two party system has been able to peacefully accommodate a third party. Bukele is no longer a member of the FMLN and has formed a coalition party known as the Great National Alliance. You now have a former establishment candidate in Bukele leading in the polls at the head of a new party. There is no violence, and this is being accepted voters and political leaders as normal.

Acceptance of new ideas and the expansion of voting opportunities is a sign of a mature democracy. The United States made a complete transformation into a mature democracy at the end of the civil war by having the results of the 1865 election accepted by all and never again looking to a war to settle differences between states.

The same now can hopefully be said of El Salvador as it moves into a new phase minus civil war and bloodshed. To the Salvadorians 1992 was not that long ago and in the scheme of things it was not a long time for this democracy to mature to where it is now. We can only hope it continues.

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RALPH NORTHAM’S BEHAVIOR WAS NO ACCIDENT

Ralph Northam, the Democratic Governor of Virginia was photographed in a racist photo 35 years ago. It matters because it was not a garden variety mistake of a slipped slur at age 14, but a photo where Northam was either dressed as a member of the Ku Klux Klan or in blackface when he was an adult in Graduate school.

He has refused to say which one he was in the photo and we do not care because either way he loses the argument. At best this was idiotic for a highly intelligent person to do in 1984 and at worse he was reflecting the norms that he was raised in and continued to accept even as an adult.

There is not way that Northam did not know this was wrong or offensive and little doubt that he thought he could get away with it if ever confronted. Well he did not get away with it and he is now the Governor of the state that housed the capitol of the Confederacy. A government that was dedicated to keeping African Americans enslaved.

Northam has a burden and responsibility unlike other Governors based on where he is the Governor. If he can’t see that responsibility and can’t understand the pain that his hateful actions have caused his most devoted African American supporters, then he is void of morality. Hate is hate and posing as a Ku Klux Klansman or in blackface in the late 20th century as an adult is not forgivable or excusable for a person who now leads a former slave state and former seat of the Confederate capitol. Northam must resign.

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PREYED UPON BECAUSE OF WHO THEY ARE

According to the FBI, a hate crime is a criminal offense against a person or property motivated in whole or in part by an offender’s bias against a race, religion, disability, sexual orientation, ethnicity, gender or gender identity. That means there are people being preyed upon purposefully because of how they worship, who they love, their race or a disability they may have. These types of crimes have increased between 2017 and 2018 and 2019 is not looking any better.

In 2017 hate crimes in the United States rose by 17 percent. This was the largest increase in bias incidents since the attacks of September 11, 2001. More than 50 percent of the victims of the attacks were African-American, 21 percent were targeted because of their religion and 16 percent
were attacked because of their sexual orientation.

The numbers did not improve especially for those who were victims of anti-sematic attacks. In New York City alone, 2018 saw 189 of 361 hate crimes targeted at Jews. Breaking this number down further, the data shows that out of the 189 attacks in 150 swastikas were displayed in some way.

Bias crimes rose by 12 percent between 2017 and 2018 in nine of the 10 largest U.S. cities. In 2018 alone 905 bias incidents occurred in these cities. In Los Angles bias incidents rose 13 percent, while in Chicago they rose by 26 percent. But nothing prepares you to read the numbers for Houston which had a 173 percent increase.

There is something wrong and it begins with the premise that it is now ok to publicly target people based on who they are. The public discourse in 2016 has not ratcheted down, but up and with it so have these incidents. Rather than outrage and a purposeful attempt to shame hate, America has begun to tolerate it.

The difference between the moral outrage that occurred when television showed people being hit with fire hoses and attacked by police dogs in the 1960’s is that those images fueled a backlash against hate and support for those who opposed it.

Now the opposite is true where those who support hate not only feel emboldened to say so publicly, they are and have been placed in positions of power. If we want to stop people from being attacked based on how they worship, who they love, their race or a disability they may have, more of us need to stop supporting those who encourage the attackers.

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ARKANSAS KEEPS TRYING TO SUPPRESS NEW PARTIES

Once again, the Arkansas Legislature has passed a bill changing the requirements for ballot access for new political parties. SB 163 passed by a vote of 27-7 even though what it seeks to do has been twice declared unconstitutional by U.S. District Courts. The bill raises the number of signatures needed for a newly-qualifying party from 10,000 signatures to 3% of the last gubernatorial vote. In addition, the bill would move the deadline to obtain the signatures to January 2.

In 1977 a law suit brought by the American Party successfully challenged an April deadline. Twice since then, first in 1996 and then 2006, law suits brought against party petition deadlines resulted in the deadlines being declared unconstitutional. The first case was brought by the Reform Party (1996) and the other by the Green Party (2006). Even though Arkansas has repeatedly lost these lawsuits, they keep trying to move the goal post on third party ballot access. After the 1996 ruling the state laughably moved the signature deadline three times from July to May and then to January.

The bill is still just that, a bill not the law. It is hoped that it will not be signed into law because that will mean yet another law suit and yet another victory for the challengers. At some point this is going to come to a head and find itself before the Supreme court. The issue is whether we can continue to deny ballot access by making it difficult or are we finally going to let freedom and democracy dictate who our elected officials are. We hope it is the latter.

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RUSSIAN INFLUENCE AND ACTIONS IN VENEZUELA

Recently a Russian aircraft that had never been flown to Venezuela landed in Caracas. The plane is large enough to seat 400 which could mean a substantial amount of tourist, government officials or the arrival of Russian backed security forces. Which one it could be if any is not the issue. The issue is what is the liability of Russia when it comes to human rights abuses if they are implicated in supporting such abuses by the Maduro regimen.

Aiding and abetting war crimes is a serious offence that Russia could be charged with if any Russian backed military force is used in the willful killing of Venezuelan civilians. This could also be applied without death taking place if civilians are targeted for attack.

Getting to the point of a war crime is essential to the charge of Aiding and abetting. Maduro is already there because he has ordered the killing of civilians and prisoners, ordered torture, and the destruction of civilian property. Russian assistance to Maduro to stay in power through the use of force, could be defined as Aiding and abetting if Russian backed forces play a substantial role in the commission of a war crime.

What is the intent of the Russian government and these forces if they exist? Are they there to rescue an ally and remove him from harms way or are they there to kill, harm and threaten any who oppose his rule?

The Russian government knows what a war crime is, and they are well aware that helping Maduro through the use of force could implicate them in a war crime. Their mental state would not be at issue if the Russians have or do send any form of military aid to Maduro. Mental state is key to Aiding and abetting.

No one knows why this plane made this journey. If it is there to remove Maduro peacefully then Russia deserves a great deal of credit for avoiding more bloodshed. If the intent is to assist in quelling by force the opposition to Maduro, then the Russian government, officials and those who participate on the ground are in jeopardy of being charged with war crimes.

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