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Paul Merrell

Mootness and the 215 Challenges | Just Security - 0 views

  • As a nerdy follow-up to the stories about last night’s expiration of section 215, I thought I’d say a quick word about how that denouement will affect the ongoing litigation challenging the bulk phone records program. In a nutshell, it’s a mixed bag. Although it’s well settled by the Supreme Court that most (albeit not all) suits seeking prospective relief become moot upon the repeal or expiration of the statute being challenged (since there’s nothing left to enjoin), it’s equally axiomatic that claims for damages survive such developments. To be sure, the plaintiffs in the Second and Ninth Circuit cases challenging section 215–ACLU v. Clapper and Smith v. Obama–both sought only injunctive and/or declaratory relief. In those cases, at least, there’s a non-frivolous argument that the claims were mooted by the expiration of section 215 (although, in ACLU, the plaintiffs also sought an order requiring the government “to purge from their possession all of the call records of Plaintiffs’ communications in their possession collected pursuant to the [phone records program],” a claim that certainly isn’t mooted by 215’s expiration). And in the D.C. Circuit challenge–Klayman v. Obama–the plaintiff also sought (rather excessive) actual, compensatory, and punitive damages in his complaint, which, if nothing else, should pretermit any argument from the government that the case is now moot.
  • In other words, we should still expect an opinion from the D.C. Circuit on the phone records program even now that section 215 has expired. As for the Second Circuit, the plaintiffs’ purge claim is almost certainly enough to defeat a government motion to vacate the Court of Appeals’ May 7 decision. The more intriguing question is whether the government might therefore seek rehearing en banc or certiorari. Either way, the bottom line is that the expiration of section 215 is likely to have no effect on at least two of the three pending challenges to the phone records program.
Gary Edwards

The obscure legal system that lets corporations sue countries | Claire Provost and Matt... - 0 views

  • Every year on 15 September, thousands of Salvadorans celebrate the date when much of Central America gained independence from Spain. Fireworks are set off and marching bands parade through villages across the country. But, last year, in the town of San Isidro, in Cabañas, the festivities had a markedly different tone. Hundreds had gathered to protest against the mine. Gold mines often use cyanide to separate gold from ore, and widespread concern over already severe water contamination in El Salvador has helped fuel a powerful movement determined to keep the country’s minerals in the ground. In the central square, colourful banners were strung up, calling on OceanaGold to drop its case against the country and leave the area. Many were adorned with the slogan, “No a la mineria, Si a la vida” (No to mining, Yes to life). On the same day, in Washington DC, Parada gathered his notes and shuffled into a suite of nondescript meeting rooms in the World Bank’s J building, across the street from its main headquarters on Pennsylvania Avenue. This is the International Centre for the Settlement of Investment Disputes (ICSID): the primary institution for handling the cases that companies file against sovereign states. (The ICSID is not the sole venue for such cases; there are similar forums in London, Paris, Hong Kong and the Hague, among others.) The date of the hearing was not a coincidence, Parada said. The case has been framed in El Salvador as a test of the country’s sovereignty in the 21st century, and he suggested that it should be heard on Independence Day. “The ultimate question in this case,” he said, “is whether a foreign investor can force a government to change its laws to please the investor as opposed to the investor complying with the laws they find in the country.”
  • Most international investment treaties and free-trade deals grant foreign investors the right to activate this system, known as investor-state dispute settlement (ISDS), if they want to challenge government decisions affecting their investments. In Europe, this system has become a sticking point in negotiations over the controversial Transatlantic Trade and Investment Partnership (TTIP) deal proposed between the European Union and the US, which would massively extend its scope and power and make it harder to challenge in the future. Both France and Germany have said that they want access to investor-state dispute settlement removed from the TTIP treaty currently under discussion. Investors have used this system not only to sue for compensation for alleged expropriation of land and factories, but also over a huge range of government measures, including environmental and social regulations, which they say infringe on their rights. Multinationals have sued to recover money they have already invested, but also for alleged lost profits and “expected future profits”. The number of suits filed against countries at the ICSID is now around 500 – and that figure is growing at an average rate of one case a week. The sums awarded in damages are so vast that investment funds have taken notice: corporations’ claims against states are now seen as assets that can be invested in or used as leverage to secure multimillion-dollar loans. Increasingly, companies are using the threat of a lawsuit at the ICSID to exert pressure on governments not to challenge investors’ actions.
  • “I had absolutely no idea this was coming,” Parada said. Sitting in a glass-walled meeting room in his offices, at the law firm Foley Hoag, he paused, searching for the right word to describe what has happened in his field. “Rogue,” he decided, finally. “I think the investor-state arbitration system was created with good intentions, but in practice it has gone completely rogue.”
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  • The quiet village of Moorburg in Germany lies just across the river from Hamburg. Past the 16th-century church and meadows rich with wildflowers, two huge chimneys spew a steady stream of thick, grey smoke into the sky. This is Kraftwerk Moorburg, a new coal-fired power plant – the village’s controversial next-door neighbour. In 2009, it was the subject of a €1.4bn investor-state case filed by Vattenfall, the Swedish energy giant, against the Federal Republic of Germany. It is a prime example of how this powerful international legal system, built to protect foreign investors in developing countries, is now being used to challenge the actions of European governments as well. Since the 1980s, German investors have sued dozens of countries, including Ghana, Ukraine and the Philippines, at the World Bank’s Centre in Washington DC. But with the Vattenfall case, Germany found itself in the dock for the first time. The irony was not lost on those who considered Germany to be the grandfather of investor-state arbitration: it was a group of German businessmen, in the late 1950s, who first conceived of a way to protect their overseas investments as a wave of developing countries gained independence from European colonial powers. Led by Deutsche Bank chairman Hermann Abs, they called their proposal an “international magna carta” for private investors.
  • In the 1960s, the idea was taken up by the World Bank, which said that such a system could help the world’s poorer countries attract foreign capital. “I am convinced,” the World Bank president George Woods said at the time, “that those … who adopt as their national policy a welcome [environment] for international investment – and that means, to mince no words about it, giving foreign investors a fair opportunity to make attractive profits – will achieve their development objectives more rapidly than those who do not.” At the World Bank’s 1964 annual meeting in Tokyo, it approved a resolution to set up a mechanism for handling investor-state cases. The first line of the ICSID Convention’s preamble sets out its goal as “international cooperation for economic development”. There was sharp opposition to this system from its inception, with a bloc of developing countries warning that it would undermine their sovereignty. A group of 21 countries – almost every Latin American country, plus Iraq and the Philippines – voted against the proposal in Tokyo. But the World Bank moved ahead regardless. Andreas Lowenfeld, an American legal academic who was involved in some of these early discussions, later remarked: “I believe this was the first time that a major resolution of the World Bank had been pressed forward with so much opposition.”
  • now governments are discovering, too late, the true price of that confidence. The Kraftwerk Moorburg plant was controversial long before the case was filed. For years, local residents and environmental groups objected to its construction, amid growing concern over climate change and the impact the project would have on the Elbe river. In 2008, Vattenfall was granted a water permit for its Moorburg project, but, in response to local pressure, local authorities imposed strict environmental conditions to limit the utility’s water usage and its impact on fish. Vattenfall sued Hamburg in the local courts. But, as a foreign investor, it was also able to file a case at the ICSID. These environmental measures, it said, were so strict that they constituted a violation of its rights as guaranteed by the Energy Charter Treaty, a multilateral investment agreement signed by more than 50 countries, including Sweden and Germany. It claimed that the environmental conditions placed on its permit were so severe that they made the plant uneconomical and constituted acts of indirect expropriation.
  • With the rapid growth in these treaties – today there are more than 3,000 in force – a specialist industry has developed in advising companies how best to exploit treaties that give investors access to the dispute resolution system, and how to structure their businesses to benefit from the different protections on offer. It is a lucrative sector: legal fees alone average $8m per case, but they have exceeded $30m in some disputes; arbitrators’ fees at start at $3,000 per day, plus expenses.
  • Vattenfall v Germany ended in a settlement in 2011, after the company won its case in the local court and received a new water permit for its Moorburg plant – which significantly lowered the environmental standards that had originally been imposed, according to legal experts, allowing the plant to use more water from the river and weakening measures to protect fish. The European Commission has now stepped in, taking Germany to the EU Court of Justice, saying its authorisation of the Moorburg coal plant violated EU environmental law by not doing more to reduce the risk to protected fish species, including salmon, which pass near the plant while migrating from the North Sea. A year after the Moorburg case closed, Vattenfall filed another claim against Germany, this time over the federal government’s decision to phase out nuclear power. This second suit – for which very little information is available in the public domain, despite reports that the company is seeking €4.7bn from German taxpayers – is still ongoing. Roughly one third of all concluded cases filed at the ICSID are recorded as ending in “settlements”, which – as the Moorburg dispute shows – can be very profitable for investors, though their terms are rarely fully disclosed.
  • “It was a total surprise for us,” the local Green party leader Jens Kerstan laughed, in a meeting at his sunny office in Hamburg last year. “As far as I knew, there were some [treaties] to protect German companies in the [developing] world or in dictatorships, but that a European company can sue Germany, that was totally a surprise to me.”
  • While a tribunal cannot force a country to change its laws, or give a company a permit, the risk of massive damages may in some cases be enough to persuade a government to reconsider its actions. The possibility of arbitration proceedings can be used to encourage states to enter into meaningful settlement negotiations.
  • A small number of countries are now attempting to extricate themselves from the bonds of the investor-state dispute system. One of these is Bolivia, where thousands of people took to the streets of the country’s third-largest city, Cochabamba, in 2000, to protest against a dramatic hike in water rates by a private company owned by Bechtel, the US civil engineering firm. During the demonstrations, the Bolivian government stepped in and terminated the company’s concession. The company then filed a $50m suit against Bolivia at the ICSID. In 2006, following a campaign calling for the case to be thrown out, the company agreed to accept a token payment of less than $1. After this expensive case, Bolivia cancelled the international agreements it had signed with other states giving their investors access to these tribunals. But getting out of this system is not easily done. Most of these international agreements have sunset clauses, under which their provisions remain in force for a further 10 or even 20 years, even if the treaties themselves are cancelled.
  • There are now thousands of international investment agreements and free-trade acts, signed by states, which give foreign companies access to the investor-state dispute system, if they decide to challenge government decisions. Disputes are typically heard by panels of three arbitrators; one selected by each side, and the third agreed upon by both parties. Rulings are made by majority vote, and decisions are final and binding. There is no appeals process – only an annulment option that can be used on very limited grounds. If states do not pay up after the decision, their assets are subject to seizure in almost every country in the world (the company can apply to local courts for an enforcement order).
  • While there is no equivalent of legal aid for states trying to defend themselves against these suits, corporations have access to a growing group of third-party financiers who are willing to fund their cases against states, usually in exchange for a cut of any eventual award.
  • Increasingly, these suits are becoming valuable even before claims are settled. After Rurelec filed suit against Bolivia, it took its case to the market and secured a multimillion-dollar corporate loan, using its dispute with Bolivia as collateral, so that it could expand its business. Over the last 10 years, and particularly since the global financial crisis, a growing number of specialised investment funds have moved to raise money through these cases, treating companies’ multimillion-dollar claims against states as a new “asset class”.
  • El Salvador has already spent more than $12m defending itself against Pacific Rim, but even if it succeeds in beating the company’s $284m claim, it may never recover these costs. For years Salvadoran protest groups have been calling on the World Bank to initiate an open and public review of ICSID. To date, no such study has been carried out. In recent years, a number of ideas have been mooted to reform the international investor-state dispute system – to adopt a “loser pays” approach to costs, for example, or to increase transparency. The solution may lie in creating an appeals system, so that controversial judgments can be revisited.
  • Brazil has never signed up to this system – it has not entered into a single treaty with these investor-state dispute provisions – and yet it has had no trouble attracting foreign investment.
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    "Luis Parada's office is just four blocks from the White House, in the heart of K Street, Washington's lobbying row - a stretch of steel and glass buildings once dubbed the "road to riches", when influence-peddling became an American growth industry. Parada, a soft-spoken 55-year-old from El Salvador, is one of a handful of lawyers in the world who specialise in defending sovereign states against lawsuits lodged by multinational corporations. He is the lawyer for the defence in an obscure but increasingly powerful field of international law - where foreign investors can sue governments in a network of tribunals for billions of dollars. Fifteen years ago, Parada's work was a minor niche even within the legal business. But since 2000, hundreds of foreign investors have sued more than half of the world's countries, claiming damages for a wide range of government actions that they say have threatened their profits. In 2006, Ecuador cancelled an oil-exploration contract with Houston-based Occidental Petroleum; in 2012, after Occidental filed a suit before an international investment tribunal, Ecuador was ordered to pay a record $1.8bn - roughly equal to the country's health budget for a year. (Ecuador has logged a request for the decision to be annulled.) Parada's first case was defending Argentina in the late 1990s against the French conglomerate Vivendi, which sued after the Argentine province of Tucuman stepped in to limit the price it charged people for water and wastewater services. Argentina eventually lost, and was ordered to pay the company more than $100m. Now, in his most high-profile case yet, Parada is part of the team defending El Salvador as it tries to fend off a multimillion-dollar suit lodged by a multinational mining company after the tiny Central American country refused to allow it to dig for gold."
Paul Merrell

Peekaboo, I See You: Government Authority Intended for Terrorism is Used for Other Purp... - 0 views

  • The Patriot Act continues to wreak its havoc on civil liberties. Section 213 was included in the Patriot Act over the protests of privacy advocates and granted law enforcement the power to conduct a search while delaying notice to the suspect of the search. Known as a “sneak and peek” warrant, law enforcement was adamant Section 213 was needed to protect against terrorism. But the latest government report detailing the numbers of “sneak and peek” warrants reveals that out of a total of over 11,000 sneak and peek requests, only 51 were used for terrorism. Yet again, terrorism concerns appear to be trampling our civil liberties. Throughout the Patriot Act debate the Department of Justice urged Congress to pass Section 213 because it needed the sneak and peak power to help investigate and prosecute terrorism crimes “without tipping off terrorists.” In 2005, FBI Director Robert Mueller continued the same exact talking point, emphasizing sneak and peek warrants were “an invaluable tool in the war on terror and our efforts to combat serious criminal conduct.”
  • What do the reports reveal? Two things: 1) there has been an enormous increase in the use of sneak and peek warrants and 2) they are rarely used for terrorism cases. First, the numbers: Law enforcement made 47 sneak-and-peek searches nationwide from September 2001 to April 2003. The 2010 report reveals 3,970 total requests were processed. Within three years that number jumped to 11,129. That's an increase of over 7,000 requests. Exactly what privacy advocates argued in 2001 is happening: sneak and peak warrants are not just being used in exceptional circumstances—which was their original intent—but as an everyday investigative tool.
  • Second, the uses: Out of the 3,970 total requests from October 1, 2009 to September 30, 2010, 3,034 were for narcotics cases and only 37 for terrorism cases (about .9%). Since then, the numbers get worse. The 2011 report reveals a total of 6,775 requests. 5,093 were used for drugs, while only 31 (or .5%) were used for terrorism cases. The 2012 report follows a similar pattern: Only .6%, or 58 requests, dealt with terrorism cases. The 2013 report confirms the incredibly low numbers. Out of 11,129 reports only 51, or .5%, of requests were used for terrorism. The majority of requests were overwhelmingly for narcotics cases, which tapped out at 9,401 requests.
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  • Section 213 may be less known than Section 215 of the Patriot Act (the clause the government is currently using to collect your phone records), but it's just as important. The Supreme Court ruled in Wilson v. Arkansas and Richards v. Wisconsin that the Fourth Amendment requires police to generally “knock and announce” their entry into property as a means of notifying a homeowner of a search. The idea was to give the owner an opportunity to assert their Fourth Amendment rights. The court also explained that the rule could give way in situations where evidence was under threat of destruction or there were concerns for officer s
Paul Merrell

Exclusive: Cornered but unbound by nuclear pact, Israel reconsiders military action aga... - 0 views

  • Historic negotiations with Iran will reach an inflection point on Monday, as world powers seek to clinch a comprehensive deal that will, to their satisfaction, end concerns over the nature of its vast, decade-old nuclear program.But reflecting on the deal under discussion with The Jerusalem Post on the eve of the deadline, Israel has issued a stark, public warning to its allies with a clear argument: Current proposals guarantee the perpetuation of a crisis, backing Israel into a corner from which military force against Iran provides the only logical exit.
  • Historic negotiations with Iran will reach an inflection point on Monday, as world powers seek to clinch a comprehensive deal that will, to their satisfaction, end concerns over the nature of its vast, decade-old nuclear program.But reflecting on the deal under discussion with The Jerusalem Post on the eve of the deadline, Israel has issued a stark, public warning to its allies with a clear argument: Current proposals guarantee the perpetuation of a crisis, backing Israel into a corner from which military force against Iran provides the only logical exit.
  • World powers have presented Iran with an accord that would restrict its nuclear program for roughly ten years and cap its ability to produce fissile material for a weapon during that time to a minimum nine-month additional period, from the current three months.Should Tehran agree, the deal may rely on Russia to convert Iran's current uranium stockpile into fuel rods for peaceful use. The proposal would also include an inspection regime that would attempt to follow the program's entire supply chain, from the mining of raw material to the syphoning of that material to various nuclear facilities across Iran.Israel's leaders believe the best of a worst-case scenario, should that deal be reached, is for inspections to go perfectly and for Iran to choose to abide by the deal for the entire decade-long period.
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  • On Saturday afternoon, reports from Vienna suggested the P5+1 – the US, United Kingdom, France, Russia, China and Germany – are willing to stop short of demanding full disclosure of any secret weapon work by Tehran.Speaking to the Post, a senior US official rejected concern over limited surveillance capabilities, during or after a deal."If we can conclude a comprehensive agreement, we will have significantly more ability to detect covert facilities – even after its duration is over – than we do today," the senior US official said. "After the duration of the agreement, the most intrusive inspections will continue: the Additional Protocol – which encompasses very intrusive transparency, and which Iran has already said it will implement – will continue."
  • Officials in the Netanyahu government are satisfied that their ideas and concerns have been given a fair hearing by their American counterparts. They praise the US for granting Israel unprecedented visibility into the process. But while those discussions may have affected the talks at the margins, large gaps – on whether to grant Iran the right to enrich uranium, or allow it to keep much of its infrastructure – have remained largely unaddressed.
  • Yet, more than any single enforcement standard or cap included in the deal, Israel believes the Achilles' heel of the proposed agreement is its definitive end date – the sunset clause."You've not dismantled the infrastructure, you've basically tried to put limits that you think are going to be monitored by inspectors and intelligence," said the official, "and then after this period of time, Iran is basically free to do whatever it wants."The Obama administration also rejects this claim. By e-mail, the senior US administration official said that, "'following successful implementation of the final step of the comprehensive solution for its duration, the Iranian nuclear program will be treated in the same manner as that of any non-nuclear weapon state party to the NPT – with an emphasis on non-nuclear weapon."
Paul Merrell

Emergency surveillance law to be brought in with cross-party support | World news | the... - 0 views

  • Controversial emergency laws will be introduced into the Commons next Monday to reinforce the powers of security services to require internet and phone companies to keep records of their customers' emails and calls.The move follows private talks over the past week and the laws will have the support of Labour and the Liberal Democrats on the basis that there will be a sunset clause and a new board to oversee the functioning of the powers.Details are due to be announced at a Downing Street press conference on Thursday morning.
  • he laws will expire in 2016, requiring fresh legislation after the election. The Regulation of Investigatory Powers Act will be reviewed between now and 2016 to make recommendations for how it could be reformed and updated. Lib Dems insist the new legislation does not represent an extension of existing surveillance powers or the introduction of the snooper's charter sought by the Home Office and long opposed by the deputy prime minister, Nick Clegg.There will be no power to look at the content of phone calls, only location, date and the phone numbers. Government sources say they have been forced to act due to European court of justice ruling in April saying the current laws invaded individual privacy. The government says if there had been no new powers there would have been no obligation on phone and internet companies to keep records if there was a UK court challenge to the retention of data.
  • No 10 said the ECJ rulings had struck down regulations to retain communications data for law enforcement purposes for up to 12 months. Unless they have a business reason to hold this data, internet and phone companies will start deleting it, which has serious consequences for investigations, which can take many months and which rely on retrospectively accessing data for evidential purposes.Ministers added that some companies had already been calling for a clearer legal frameworkLabour backbencher Tom Watson described the move as a "stitch-up". He said: "There has been a deal and it had been railroaded through so my advice to MPs is there is no point turning up for work next week because there has been a political deal." He said he had not seen the detail of the legislation and promised to vote against the timetable.He added: "The government was aware of this ECJ ruling six weeks ago and what they are doing is railroading this through. No one in civil society has got a chance to be consulted." The shadow cabinet had not seen the proposals until this morning, he added.
Paul Merrell

Tell Congress: My Phone Calls are My Business. Reform the NSA. | EFF Action Center - 0 views

  • The USA PATRIOT Act granted the government powerful new spying capabilities that have grown out of control—but the provision that the FBI and NSA have been using to collect the phone records of millions of innocent people expires on June 1. Tell Congress: it’s time to rethink out-of-control spying. A vote to reauthorize Section 215 is a vote against the Constitution.
  • On June 5, 2013, the Guardian published a secret court order showing that the NSA has interpreted Section 215 to mean that, with the help of the FBI, it can collect the private calling records of millions of innocent people. The government could even try to use Section 215 for bulk collection of financial records. The NSA’s defenders argue that invading our privacy is the only way to keep us safe. But the White House itself, along with the President’s Review Board has said that the government can accomplish its goals without bulk telephone records collection. And the Privacy and Civil Liberties Oversight Board said, “We have not identified a single instance involving a threat to the United States in which [bulk collection under Section 215 of the PATRIOT Act] made a concrete difference in the outcome of a counterterrorism investigation.” Since June of 2013, we’ve continued to learn more about how out of control the NSA is. But what has not happened since June is legislative reform of the NSA. There have been myriad bipartisan proposals in Congress—some authentic and some not—but lawmakers didn’t pass anything. We need comprehensive reform that addresses all the ways the NSA has overstepped its authority and provides the NSA with appropriate and constitutional tools to keep America safe. In the meantime, tell Congress to take a stand. A vote against reauthorization of Section 215 is a vote for the Constitution.
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    EFF has launched an email campagin to press members of Congress not to renew sectiion 215 of the Patriot Act when it expires on June 1, 2015.   Sectjon 215 authorizes FBI officials to "make an application for an order requiring the production of *any tangible things* (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution." http://www.law.cornell.edu/uscode/text/50/1861 The section has been abused to obtain bulk collecdtion of all telephone records for the NSA's storage and processing.But the section goes farther and lists as specific examples of records that can be obtained under section 215's authority, "library circulation records, library patron lists, book sales records, book customer lists, firearms sales records, tax return records, educational records, or medical records."  Think of the NSA's voracious appetite for new "haystacks" it can store  and search in its gigantic new data center in Utah. Then ask yourself, "do I want the NSA to obtain all of my personal data, store it, and search it at will?" If your anser is "no," you might consider visiting this page to send your Congress critters an email urging them to vote against renewal of section 215 and to vote for other NSA reforms listed in the EFF sample email text. Please do not procrastinate. Do it now, before you forget. Every voice counts. 
Paul Merrell

Why John Oliver Can't Find Americans Who Know Edward Snowden's Name (It's Not About Sno... - 0 views

  • On his HBO program last night, John Oliver devoted 30 minutes to a discussion of U.S. surveillance programs, advocating a much more substantive debate as the June 1 deadline for renewing the Patriot Act approaches (the full segment can be seen here). As part of that segment, Oliver broadcast an interview he conducted with Edward Snowden in Moscow, and to illustrate the point that an insufficient surveillance debate has been conducted, showed video of numerous people in Times Square saying they had no idea who Snowden is (or giving inaccurate answers about him). Oliver assured Snowden off-camera that they did not cherry-pick those “on the street” interviews but showed a representative sample
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    The John Oliver interview with Edward Snowden is a must-watch. Oliver found a way to make the issue matter to many more Americans and exposed many of them to it. 
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