Month: September 2022

Is “Necessary and Proper” a Hendiadys? Responding to Calabresi, Kostial, and Lawson

Like the Dude, McCulloch v. Maryland abides. Steve Calabresi, Elise Kostiel, and Gary Lawson have a new paper called “What McCulloch v. Maryland Got Wrong: The Original Meaning of ‘Necessary’ Is Not ‘Useful,’ ‘Convenient,’ or ‘Rational.'” Anyone interested in McCulloch should read their article, but I want to keep the conversation going about whether “necessary and proper” is a hendiadys. That’s a claim I advanced in “Necessary AND Proper” and “Cruel AND Unusual”: Hendiadys in the Constitution. A hendiadys occurs when two words, separated by a conjunction, are used as a single unit of meaning (with each contributing something distinctive–not mere repetition).

In text, the authors suggest that my argument is opposed to Chief Justice Marshall’s, because he treats each term as having “independent significance,” while if the phrase is a hendiadys that would not be true. (I’m not sure Chief Justice Marshall actually argues that, but let’s leave that aside for now.) The authors then drop this footnote:

An assessment of Professor Bray’s argument is beyond the scope of this article. But because the argument, if correct, calls into question the lifetime project of one of us to ascertain the original meaning of “proper,” see Lawson & Seidman, supra note 36, Lawson, supra note 9; Lawson & Granger, supra note 23, and because a number of modern Supreme Court decisions have attached distinct significance to the word “proper,” see National Federation of Independent Business v. Sebelius, 567 U.S. 519, 559 (2012); Printz v. United States, 521 U.S. 898, 923-24 (1997); a few comments are appropriate. First, most of the many examples of hendiadys that Professor Bray provides, see Bray, supra note 139, at 696-706, are drawn from literature or colloquial speech. Legal documents in general and the Constitution in particular are neither of those things. See John O. McGinnis & Michael B. Rappaport, The Constitution and the Language of the Law, 59 WM. & MARY L. REV. 1321 (2018), Just as one would be more likely to look for metaphors in a poem than in a power of attorney (and probably more likely to look for technical words of art in the latter than in the former), perhaps it makes more sense to look for a hendiadys in a play or lunchtime conversation than in a formal legal document. Second, intratextually, the terms “necessary” and “proper” show up in other constitutional clauses, sometimes singly and sometimes in combination with other terms (e.g., “absolutely necessary”), which seems to cut in favor of assigning meaning to each. Third, and finally, even if Professor Bray is ultimately right, the hendiadys label only has bite if the unitary meaning of “necessary and proper” refers only to causal means-ends connection. That is surely not right. Once one identifies the Necessary and Proper Clause as an incidental powers clause, then the central question becomes which interpretative principles flow from that identification. If there was an established set of background rules for interpreting incidental powers clauses in agency instruments in the eighteenth century (and there was), and if the phrase “necessary and proper” was a commonly-used phrase in agency law at that time (and it was), and if all of the above would have been well known to the four agency lawyers and the agency-employing businessman on the Committee of Detail that drafted the clause (and it would have been), then it probably does not matter whether one parses “necessary” and “proper” in sequence to yield those interpretative principles or if one simply takes the phrase as a hendiadys that represents those principles. The principles are the principles. And if those principles went beyond a straightforward means-ends relationship and instead incorporate agency-law ideas such as a fiduciary duty of care, a duty of loyalty and a requirement not to exceed the scope of the granted agency (and they did), then little of consequence turns on whether one classifies the clause as a hendiadys or treats “necessary” and “proper” as distinct component parts of a set of fiduciary principles. In other words, perhaps we are dealing not so much with a hendiadys, in the literary sense of that term, as with a legal term of art.

There are three different arguments here, and I’ll give the briefest of responses with pointers for anyone who wants to read more.

The first argument is that we shouldn’t expect a figure of speech like hendiadys to appear in a legal document. I agree that a play, to give a form of expression the authors mention, is more likely to have a hendiadys (at least if Shakespeare is writing it). But all kinds of formal texts use this figure of speech (and others), not as a way to show off, but as a way to communicate. I give other examples of hendiadys in legal texts, ancient and modern, at pages 700-701 of Hendiadys in the Constitution. Among the examples in U.S. law are “open and notorious,” “arbitrary and capricious,” and “cruel and unusual.”

The second argument is that “necessary” and “proper” show up in other places in the Constitution separately. But I don’t see why this would negate an argument they are used in one place as a hendiadys. Every word in a hendiadys is used independently somewhere.

The third argument is that the hendiadic reading of “necessary and proper” matters only if the phrase is about causality (means-end connection) and not about incidental powers. This is an odd response, since I expressly argue that the phrase is about incidental powers. I never argue it is only about causation, and I’m not sure why my argument would not matter if it is about incidental powers. But note that the authors equate the idea that the Necessary and Proper Clause authorizes incidental powers with the idea that it imparts a fiduciary duty of care. I do not agree with that equation, and for readers who want to read at length why the U.S. Constitution does not establish legally enforceable fiduciary duties for government actors, you can see Against Fiduciary Constitutionalism (with Paul Miller).

I’m sure this short post will not be the last word on McCulloch and hendiadys, but my aim is to highlight the authors’ response to the hendiadic reading and encourage readers of the Volokh Conspiracy to dig into these questions.

The post Is "Necessary and Proper" a Hendiadys? Responding to Calabresi, Kostial, and Lawson appeared first on Reason.com.

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Brazil’s Democracy Under Threat: Supreme Court Blocks President’s Social Media

Brazil’s Democracy Under Threat: Supreme Court Blocks President’s Social Media

Authored by Augusto Zimmermann via The Epoch Times,

In Brazil, some judges have highly ambitious political goals and make decisions accordingly.

The current presiding justice at the nation’s Supreme Electoral Court is Alexandre de Moraes. He was elected as the presiding electoral officer in August, in a public ceremony with 2,000 guests at the court auditorium. He was a member of the Brazilian Social Democratic Party before being nominated justice of the nation’s Federal Supreme Court on Feb. 22, 2017.

Before being nominated to the nation’s highest court, as reported by the French daily Le Monde, he was at the centre of a controversy when the daily Estadão published an investigation showing that he had intervened as a lawyer in at least 123 legal cases to defend a corporation that some have argued is suspected of being linked to Brazil’s main drug trafficking group, the First Command of the Capital.

Moraes, who is now the nation’s top electoral officer in Brazil and responsible for overseeing the presidential elections, has issued numerous “monocratic decisions” against “misinformation,” in addition to sending some of President Jair Bolsonaro’s friends and supporters to jail, confiscating their electronic devices, and freezing their bank accounts.

On March 18, for example, Moraes ordered the nationwide suspension of the messaging app Telegram. The ruling came after Telegram ignored an earlier order to block the account of Allan dos Santos, a supporter of Bolsonaro accused of spreading “misinformation.” He had previously issued a warrant for the arrest of Santos in October.

In his ruling suspending Telegram nationwide, Moraes mentions its failing to remove “misleading” content from Bolsonaro’s own Telegram page. As reported, not only did he order the shutdown of the message app nationwide but also ordered Apple and Google to introduce “technological obstacles” to block Telegram on their operating systems and withdraw it from their digital stores in Brazil.

Bolsonaro, who seeks reelection in October, relies on Telegram to reach his voter base. He has more than a million followers on the platform and this could prove crucial to his electoral campaign.

Brazilian Supreme Court judge Alexandre de Moraes is pictured during a session to rule on whether former president Luiz Inacio Lula da Silva should start a 12 year prison sentence for corruption, potentially upending this year’s presidential election, at the Supreme Court in Brasilia, Brazil, on April 4, 2018. (Victoria Silva/AFP via Getty Images)

‘Authoritarian Decisions’

On March 19, during the popular television program “Os Pingos nos Is” from Jovem Pam, journalist Augusto Nunes accused Moraes of committing several illegalities, including the abuse of authority and the violation of a cláusula pétrea (“stone clause”) in the Brazilian Constitution that makes freedom of expression an inalienable right of the citizen.

Nunes also criticized the silence of politicians about Moraes’s “decisions,” including the banning of Telegram nationwide.

“It’s time to demand senators and judges handcuffed for their cowardice. And those appointed by President Jair Bolsonaro have to explain how long this cowardly silence they have maintained in the face of arrogance will last,” he said.

On May 27, 2020, Justice Moraes, who had become the nation’s top electoral officer, ordered the federal police to launch an operation probing businessmen, bloggers, and politicians allied to Bolsonaro. In the decision that authorised the operation, he also determined the blocking of all their accounts on social media outlets such as Facebook, Twitter, and Instagram. According to him, the monocratic decision is necessary for the interruption of “misinformation” and “fake news.”

The investigation on “misinformation” conducted by Moraes concerns more generally the dissemination of information regarding the transparency of electronic voting machines and the credibility of the Brazilian electoral commission, which is actually headed by Moraes himself.

Filipe Martins, the special advisor to the presidency of the Republic for international affairs, commented that “journalists, humorists, and ordinary citizens who act spontaneously are being treated as bandits for daring to express opinions that displease the establishment.”

…

Bolsonaro says democracy is now under serious attack in the country. He has accused these unelected judges of practising political interference and trying to deploy a judicial dictatorship.

“Brazil is on the road to dictatorship. This is how dictatorships start now. You lose your freedom little by little, then one day you look, and you are completely tied up,” he told network Jovem Pan.

After knowing all these extraordinary things, who would disagree? The democratic system is clearly being undermined by the replacement of the rule of law with the rule of judges. In fact, the premise that unelected judges know better what is best for the nation is elitist and utterly undemocratic.

It is ironic to see that now the major threat to democracy in Brazil now comes not from elected politicians but from a highly anachronistic judicial oligarchy.

Read more here…

Tyler Durden
Mon, 09/05/2022 – 21:30

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“Toxic” Dust Storm Hits Burning Man, Causing Total Whiteout

“Toxic” Dust Storm Hits Burning Man, Causing Total Whiteout

The final weekend of Burning Man nearly ended earlier as visibility deteriorated to zero during a massive dust storm. 

On Saturday, Burning Man’s official Twitter account tweeted the gates into the festival in Nevada’s Black Rock Desert were closed “due to whiteout conditions.” Event staff requested festivalgoers: 

“Do not drive. Vehicles are becoming stranded and lost on the playa.” 

From a distance, the National Weather Service of Reno’s stationary cameras captured the moment when dust rolled across the festival area, severely impacting visibility for the tens of thousands of people. 

A passenger on a commercial flight captured a clearer view of the dust storm affecting the festival. 

The dust storm was so big that a weather satellite spotted it. 

On the ground, festivalgoers looked miserable on the last weekend of the nine-day event. The San Francisco Standard pointed out that the dust in the area is full of “alkaline” and is “quite toxic.” 

San Francisco Chronicle said the dust storm nearly “ruined the annual torching of a giant wooden effigy.” But by late Saturday evening, the gates reopened, and around 2200 local time, the statue went up in flames. 

Toxic dust wasn’t the only thing festivalgoers had to worry about — daytime highs hit triple digits, sending some people home early.  

Tyler Durden
Mon, 09/05/2022 – 21:00

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Is “Necessary and Proper” a Hendiadys? Responding to Calabresi, Kostial, and Lawson

Like the Dude, McCulloch v. Maryland abides. Steve Calabresi, Elise Kostiel, and Gary Lawson have a new paper called “What McCulloch v. Maryland Got Wrong: The Original Meaning of ‘Necessary’ Is Not ‘Useful,’ ‘Convenient,’ or ‘Rational.'” Anyone interested in McCulloch should read their article, but I want to keep the conversation going about whether “necessary and proper” is a hendiadys. That’s a claim I advanced in “Necessary AND Proper” and “Cruel AND Unusual”: Hendiadys in the Constitution. A hendiadys occurs when two words, separated by a conjunction, are used as a single unit of meaning (with each contributing something distinctive–not mere repetition).

In text, the authors suggest that my argument is opposed to Chief Justice Marshall’s, because he treats each term as having “independent significance,” while if the phrase is a hendiadys that would not be true. (I’m not sure Chief Justice Marshall actually argues that, but let’s leave that aside for now.) The authors then drop this footnote:

An assessment of Professor Bray’s argument is beyond the scope of this article. But because the argument, if correct, calls into question the lifetime project of one of us to ascertain the original meaning of “proper,” see Lawson & Seidman, supra note 36, Lawson, supra note 9; Lawson & Granger, supra note 23, and because a number of modern Supreme Court decisions have attached distinct significance to the word “proper,” see National Federation of Independent Business v. Sebelius, 567 U.S. 519, 559 (2012); Printz v. United States, 521 U.S. 898, 923-24 (1997); a few comments are appropriate. First, most of the many examples of hendiadys that Professor Bray provides, see Bray, supra note 139, at 696-706, are drawn from literature or colloquial speech. Legal documents in general and the Constitution in particular are neither of those things. See John O. McGinnis & Michael B. Rappaport, The Constitution and the Language of the Law, 59 WM. & MARY L. REV. 1321 (2018), Just as one would be more likely to look for metaphors in a poem than in a power of attorney (and probably more likely to look for technical words of art in the latter than in the former), perhaps it makes more sense to look for a hendiadys in a play or lunchtime conversation than in a formal legal document. Second, intratextually, the terms “necessary” and “proper” show up in other constitutional clauses, sometimes singly and sometimes in combination with other terms (e.g., “absolutely necessary”), which seems to cut in favor of assigning meaning to each. Third, and finally, even if Professor Bray is ultimately right, the hendiadys label only has bite if the unitary meaning of “necessary and proper” refers only to causal means-ends connection. That is surely not right. Once one identifies the Necessary and Proper Clause as an incidental powers clause, then the central question becomes which interpretative principles flow from that identification. If there was an established set of background rules for interpreting incidental powers clauses in agency instruments in the eighteenth century (and there was), and if the phrase “necessary and proper” was a commonly-used phrase in agency law at that time (and it was), and if all of the above would have been well known to the four agency lawyers and the agency-employing businessman on the Committee of Detail that drafted the clause (and it would have been), then it probably does not matter whether one parses “necessary” and “proper” in sequence to yield those interpretative principles or if one simply takes the phrase as a hendiadys that represents those principles. The principles are the principles. And if those principles went beyond a straightforward means-ends relationship and instead incorporate agency-law ideas such as a fiduciary duty of care, a duty of loyalty and a requirement not to exceed the scope of the granted agency (and they did), then little of consequence turns on whether one classifies the clause as a hendiadys or treats “necessary” and “proper” as distinct component parts of a set of fiduciary principles. In other words, perhaps we are dealing not so much with a hendiadys, in the literary sense of that term, as with a legal term of art.

There are three different arguments here, and I’ll give the briefest of responses with pointers for anyone who wants to read more.

The first argument is that we shouldn’t expect a figure of speech like hendiadys to appear in a legal document. I agree that a play, to give a form of expression the authors mention, is more likely to have a hendiadys (at least if Shakespeare is writing it). But all kinds of formal texts use this figure of speech (and others), not as a way to show off, but as a way to communicate. I give other examples of hendiadys in legal texts, ancient and modern, at pages 700-701 of Hendiadys in the Constitution. Among the examples in U.S. law are “open and notorious,” “arbitrary and capricious,” and “cruel and unusual.”

The second argument is that “necessary” and “proper” show up in other places in the Constitution separately. But I don’t see why this would negate an argument they are used in one place as a hendiadys. Every word in a hendiadys is used independently somewhere.

The third argument is that the hendiadic reading of “necessary and proper” matters only if the phrase is about causality (means-end connection) and not about incidental powers. This is an odd response, since I expressly argue that the phrase is about incidental powers. I never argue it is only about causation, and I’m not sure why my argument would not matter if it is about incidental powers. But note that the authors equate the idea that the Necessary and Proper Clause authorizes incidental powers with the idea that it imparts a fiduciary duty of care. I do not agree with that equation, and for readers who want to read at length why the U.S. Constitution does not establish legally enforceable fiduciary duties for government actors, you can see Against Fiduciary Constitutionalism (with Paul Miller).

I’m sure this short post will not be the last word on McCulloch and hendiadys, but my aim is to highlight the authors’ response to the hendiadic reading and encourage readers of the Volokh Conspiracy to dig into these questions.

The post Is "Necessary and Proper" a Hendiadys? Responding to Calabresi, Kostial, and Lawson appeared first on Reason.com.

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Deadly Earthquake Hits China’s Southwestern Sichuan Province

Deadly Earthquake Hits China’s Southwestern Sichuan Province

A powerful earthquake rocked a mountainous region of China’s southwestern Sichuan province on Monday. At least 46 people are dead, in the latest problems mounting for the province hit by historic drought and Covid lockdowns. 

The 6.8 magnitude earthquake hit Luding county in western Sichuan, about 120 miles west of the provincial capital of Chengdu, reported China Earthquake Administration. 

Videos posted on social media showed damaged building structures and landslides.

Various types of infrastructure, such as roads and power lines, also appear to be damaged. 

Tremors were felt in Chengdu, a megacity with 21 million people currently under Covid lockdown. Besides lockdowns, the metro area has already faced power rationings due to drought and heatwaves this summer. 

A question we have: When an earthquake strikes, can those under mandatory Covid lockdown exit their homes or condos to avoid danger?

Sichuan is located on a major fault and is considered one of the country’s most highly active quake areas. In 2008, Chengdu was hit by a devastating 8.2 magnitude quake, leaving more than 69,000 dead. 

Tyler Durden
Mon, 09/05/2022 – 20:00

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Retired US General Tells Ukraine “Better To Negotiate Now Than Later”

Retired US General Tells Ukraine “Better To Negotiate Now Than Later”

A retired Pentagon general has issued a rare call for Ukraine to immediately enter negotiations with Russia toward finding a peaceful solution to the now six-month long war. This comes after weeks of reports of a ‘stalemated’ battlefield along eastern and southern lines, and amid Western leaders increasingly acknowledging “uncomfortably low” and depleted weapons stockpiles.

Army brigadier general Mark T. Kimmitt, who had served as Assistant Secretary of State for Political-Military Affairs under the George W. Bush administration, warned in a Wall Street Journal op-ed days ago that the current policy of ramping up weapons systems to Kyiv is only likely to lead to more casualties.

He wrote in the Thursday article that “older and less advanced” systems which are increasingly making up the bulk of what’s now being supplied “may indicate that battlefield consumption rates have outpaced production to a point where excess inventories provided to Ukraine are nearly exhausted.”

US Retired Brigadier General Mark Kimmitt, via Al Arabiya

Kimmitt argued that the “dwindling stocks of leading-edge weapon systems” in NATO countries will inevitably lead to a prolonged conflict, and a longer war will in turn result in “more pressure from supporting nations, sustained inflation, less heating gas, and falling popular support.” He concluded:

“This likely will mean muddling through a long war, with more casualties.”

Outlining the “logistic peril” of getting NATO weapons to the Ukrainians, the retired general explored three options which involve varying means of keeping the weapons flowing and thus digging deeper into NATO stockpiles, but which will also ensure escalation – even including supplying Kyiv with longer range missiles.

But Kimmitt then offers a final available option, which he admits no one including the Zelensky government itself seems willing to take seriously (given also the Ukrainian president has recently been vowing the “liberation” of Crimea). This last option – the path of serious negotiations – would involve Ukraine pushing for “an interim diplomatic resolution without (or with) territorial concessions.”

“There is little incentive to negotiate” at the moment, Kimmitt acknowledges, but Zelensky “must recognize that diminishing resupplies would have a disastrous effect on his army, not merely for battlefield operations but for the message of declining outside support it would send to the people of Ukraine.”

“Beginning the diplomatic resolution would be distasteful, and perhaps seen as defeatist, but as there is little chance of climbing out of the current morass, it may be better to negotiate now than later.”

Such realism appearing in a mainstream outlet when it comes to the Ukraine debate is a rarity, but as Russia and the West continue their game of chicken over Ukraine, now clearly a full-blown proxy war, likely more such urgings for negotiated settlement will appear in public discourse.

* * *

Meanwhile, Russia too is putting Europe on notice regarding energy sanctions, as indeed both sides continue digging their heels in deeper…

Tyler Durden
Mon, 09/05/2022 – 19:00

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Who Benefits From US Government Claims That The UFO Threat Is Increasing “Exponentially”?

Who Benefits From US Government Claims That The UFO Threat Is Increasing “Exponentially”?

Authored by Caitlin Johnstone via Medium.com,

A US senate report which is an addendum to the Intelligence Authorization Act for Fiscal Year 2023 has people talking due to the surprising statements it includes about the US government’s current position on UFOs.

I mean Unidentified Aerial Phenomena.

I mean Unidentified Aerospace-Undersea Phenomena.

This latest moniker for the thing we all still think of as UFOs is the US government’s way of addressing how these alleged appearances, which began entering mainstream attention in 2017, are said to be able to transition seamlessly from traveling through the air to moving underwater in what’s been labeled “cross-domain transmedium” movement. Because branches of the US war machine are roughly broken up into forces specializing in air, sea, land and space operations, the notion that these things move between those domains gets special attention.

UFO enthusiasts are largely focusing on a part of the addendum which oddly stipulates that the government’s newly named Unidentified Aerospace-Undersea Phenomena Joint Program Office shall not be looking into objects “that are positively identified as man-made,” because of the obvious implications of that phrase. This is understandable; if you’ve got a government office that’s responsible for investigating unidentified phenomena, you can just say it won’t be looking into phenomena that are “positively identified”. You wouldn’t have to add “identified as man-made” unless you had a specific reason for doing so.

But for me the claim that really jumps off the page, authored by Senate Select Committee on Intelligence Chairman Mark Warner, is the claim that these unidentified aerospace-undersea phenomena are a “threat” that is increasing “exponentially”.

“At a time when cross-domain transmedium threats to United States national security are expanding exponentially, the Committee is disappointed with the slow pace of DoD-led efforts to establish the office to address those threats,” Warner writes in the report.

“Exponentially” is a mighty strong word. Taken in its least literal sense, it means that threats to US national security from UFOs are increasing at an alarmingly rapid rate. That they have swiftly become much greater than they used to be.

What is the basis for this incendiary claim? What information are US lawmakers being given to make them draw such conclusions and make such assertions? There’s a long chain of information handling between an alleged UFO encounter and a US senator’s pen, and corruption can occur at any point in that chain (including the first and last link).

I remain comfortably agnostic about most aspects of the UFO question, up to and including the possibility that there are actual extraterrestrial or extradimensional beings zipping around our planet in technology our science cannot comprehend. But one thing I absolutely will take a hard and fast position on is that the moment the US government starts labeling something a “threat”, all trust and credulity must be immediately be thrown out the window.

This is after all occurring as the US enters a steadily escalating new cold war against both Russia and China, and we know that during the last cold war the CIA sought to exploit public panic about UFOs as a psychological weapon against the Soviets, and that the CIA has claimed that its newly developed spy planes were responsible for many UFO sightings in the 1950s, and that the US military was working on developing “flying saucer” aircraft during that same time. It also occurs after the assistant secretary of the Air Force for acquisition, technology and logistics stated at a 2020 conference that the Air Force has a brand new aircraft prototype, designed using new digital engineering technology, that has “broken a lot of records.”

This new mainstream UFO narrative also has highly suspicious origins, with key players ranging from shady US intelligence cartel operatives like Lue Elizondo and Christopher Mellon, to corrupt senator Harry Reid and his plutocratic campaign donor Robert Bigelow, to Blink-182’s Tom DeLonge, who believes humanity is being tormented by malevolent extraterrestrials who feed off negative human emotions and that the US military is heroically protecting us from their evil agendas. Filmmaker Steven Greenstreet put out a short, well-sourced documentary with The New York Post this past May laying out copious amounts of evidence that the groundwork for the new UFO narrative was built on journalistic malpractice and negligence, obfuscation, omission, and outright lies. The footage we’re being shown of these supposed vehicles to justify this new narrative consist of blurs, flashes and smudges which can all be explained by mundane phenomena.

So in my opinion this isn’t a subject we can just ignore, as weird and uncomfortable as the subject of UFOs might be for serious analysts. Whatever the subject, when you’ve got the US government claiming on highly suspect grounds that there’s an exponentially growing threat that urgently needs to be addressed militarily, it’s time to sit up and start paying attention.

Not that I myself have any clear idea of what’s going on here beyond the distinct impression that we are being deceived about something potentially very important. And I don’t get the impression that other people have a very clear picture of what’s going on either.

Some say this is just a scam to get more funding for the Space Force or the military in general. That could very well be, but as far as publicly available information goes we’re not seeing anyone saying anything like “Hey we need $40 billion to address this UFO problem.”

Some say this is part of an agenda to justify getting weapons into space, but I suspect anyone likely to support that agenda would support it with or without the claim that we need to fight ET. And again, there’s the problem that nobody’s saying “Hey we need to get weapons into space because of UFOs.”

Some say this is just a deliberate “distraction” designed to keep people from focusing on more important issues, but the problem there is that (A) the empire doesn’t normally roll out distractions in that way, and (B) the UFO issue isn’t getting much mainstream attention. It’s a peripheral story, dwarfed in comparison to real propaganda initiatives like Ukraine.

Some say there’s a conspiracy to use high-tech weaponry to create a false flag alien invasion and unite humanity under a one world government, but that’s a fairly mainstream idea that’s being pushed on viral Netflix films by known fraud Steven Greer. I think the world is paranoid enough at this point that few would buy such a psyop even if it were somehow convincingly orchestrated.

Some say this narrative is all a cover for new technology the empire is keeping under wraps, presenting an official position that the US government has nothing to do with the strange vehicles people are seeing in the air as stated in the ODNI’s report on UFOs last year. That would certainly explain the empire’s cockiness in confronting Russia and China simultaneously when public knowledge of its economic and military capabilities would indicate that that’s a bad idea.

It could be as simple as the fact that once it becomes the established orthodoxy in Washington that UFOs are a threat and something needs to be done about them, it’s a safe bet that we’re going to see massive amounts of money moving around to deal with that threat and the emergence of war machinery that can be used in future confrontations with Russia and China. There are any number of creatures lurking in DC who would stand to benefit from that happening, and would stand to benefit from pushing that agenda. It’s possible that contracts have already been signed. It’s possible that finances have already been allocated for it from the war machine’s dark money slush fund, and that all this public talk is just narrative management to preemptively justify that spending when information about it comes out.

Or maybe it’s some mixture of these things, or none of them. I don’t know. I do know that someone’s benefitting from all this. And I know it’s unreasonable to expect the most murderous and tyrannical regime on earth to tell us the truth about UFOs when it would stand nothing to gain by doing so, and we ordinary people should therefore do our best to understand what’s happening for ourselves.

I think it would be good if people on the anti-empire fringes of the spectrum started looking at this thing more and describing what they’re seeing, even though it’s impossible to see everything behind the walls of government opacity. Otherwise the only people looking at it will be UFO enthusiasts who just want “disclosure” at any cost, and the operatives of the empire itself.

*  *  *

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Tyler Durden
Mon, 09/05/2022 – 18:30

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Suspect At Center Of Russiagate Hoax Wants Charges Thrown Out

Suspect At Center Of Russiagate Hoax Wants Charges Thrown Out

The primary source of Hillary Clinton’s hoax dossier used to paint Donald Trump as a Russian stooge wants a federal judge to dismiss charges filed against him for allegedly lying to federal agents about where he obtained salacious claims he fed the dossier’s author, Christopher Steele.

Russian national Igor Danchenko says that the five false statement charges against him were improperly filed because the statements he made were “literally true.”

According to the indictment, Danchenko lied about his contacts with “Russians,” his travels to Russia, and the identity of his sources. (Those are just some of the lies.)

According to charging documents, Danchenko denied ever having communicated with longtime Clinton associate, Charles Dolan – a US-based PR expert.

In John Durham’s words (via Techno Fog):

More via the Epoch Times:

Danchenko also lied, according to the documents, about believing that a phone call he received came from a businessman Sergei Millian described in court papers as Chamber President-1 and that the person on the other end told him certain information, and that he arranged to meet the person in New York.

“In truth and fact … DANCHENKO never received such a phone call or such information from any person he believed to be Chamber-President 1, and DANCEHNKO [sic] never made any arrangements to meet with Chamber President-1 in New York,” the indictment states. “Rather, DANCHENKO fabricated these facts regarding Chamber President-1.”

‘Ambiguous Answers’

In the new filing, Danchenko says that his answers did not violate the law, which prohibits making “materially false, fictitious, or fraudulent statement or representation” to federal agents or in federal court.

“The law criminalizes only unambiguously false statements that are material to a specific decision of the government. By contrast, literally true or ambiguous statements, even if they are unresponsive or misleading, or false statements about ancillary matters, do not give rise to criminal liability,” Danchenko said through his counsel.

Danchenko sat through numerous interviews with the FBI in 2017, according to the filing. During the interviews, Danchenko did say he didn’t talk to Dolan about specific allegations in the dossier, and that he believed he received a call from Millian, but those were “equivocal and ambiguous answers … prompted by fundamentally ambiguous questions,” the defendant said, asserting the statements “are literally true, and are immaterial as a matter of law.”

The lawyers noted that Danchenko was not among those charged by former special counsel Robert Mueller’s team with making false statements.

The charges against him came from special counsel John Durham’s team.

Neither prosecutors nor the judge overseeing the case, U.S. District Judge Anthony Trenga, a George W. Bush appointee, have responded to Danchenko’s filing.

Danchenko is scheduled to go on trial on Oct. 11.

Tyler Durden
Mon, 09/05/2022 – 18:05

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Russia To Legalize Use Of Cryptocurrency In International Trade: Report

Russia To Legalize Use Of Cryptocurrency In International Trade: Report

Authored by ‘NAMCIOS’ via BitcoinMagazine.com,

  • Russia is close to pushing legislation for the use of cryptocurrency in international trade.

  • In current conditions “it is impossible to do without cross-border settlements in cryptocurrency,” the Bank of Russia and Ministry of Finance have reportedly agreed.

  • The necessary regulatory framework will still need to be introduced.

The Bank of Russia and the country’s Ministry of Finance have reconsidered their positions toward cryptocurrency, acknowledging it to be necessary to legalize the use of cryptocurrencies in cross-border settlements, per a report by local news outlet TASS.

According to TASS, the two government bodies have agreed that “it is impossible” to continue without enabling cryptocurrency as a legal payment method for international trade.

The move comes as Russia dabbles on how to best regulate the Bitcoin and cryptocurrency markets. Swamped in Western sanctions, the world’s largest country has sought alternatives to the U.S. dollar so as to guarantee the efficient trade of its commodities.

In March, the chairman of the country’s Congressional energy committee, Pavel Zavalny, said the country was open to taking payments for natural gas and other natural resources exports in bitcoin.

“When it comes to our ‘friendly’ countries, like China or Turkey, which don’t pressure us, then we have been offering them for a while to switch payments to national currencies, like rubles and yuan,” Zavalny said at the time.

“With Turkey, it can be lira and rubles. So there can be a variety of currencies, and that’s a standard practice. If they want bitcoin, we will trade in bitcoin.”

In May, it was reported that Russia was “actively discussing” using cryptocurrency in international trade.

Now, the imminent actualization of such a move shifts the tide as President Vladimir Putin last year had dismissed the possibility in an interview at the Russian Energy Week event in Moscow.

“I believe that it has value,” Putin said at the time, referring to bitcoin.

“But I don’t believe it can be used in the oil trade.”

According to TASS, the necessary regulatory framework to enable cross-border settlements in cryptocurrency in Russia will still be introduced.

Tyler Durden
Mon, 09/05/2022 – 17:40

via ZeroHedge News https://ift.tt/yY3Km27 Tyler Durden

Malicious Prosecution Claim Against DHS Agents Can Go Forward

From Myles v. U.S., decided Friday by the Ninth Circuit (Judge Marsha Berzon, joined by Judge Carlos Bea and District Judge Richard Bennett), here is the court’s summary of the procedural history and of plaintiff’s allegations:

After she was discharged from her position as an Immigration and Customs Enforcement … agent, plaintiff Kui Z. Myles brought national origin discrimination and retaliation charges before the Equal Employment Opportunity Commission …. Following a multi-day trial, the EEOC upheld the charges and ordered that Myles be reinstated with backpay. Myles then worked at ICE for several years without incident. In 2013, however, she reported to ICE that she was again experiencing harassment. In response, she alleges, Department of Homeland Security … agents—including ICE officers, DHS special agents, and other high-ranking DHS officials—invented baseless criminal wage theft charges against her….

Myles is a naturalized United States citizen born in China. In 2005, she applied for and accepted a position as an Immigration Enforcement Agent at ICE, an agency within DHS. Before beginning her official work duties, Myles attended a mandatory federal training program. During the program, she was subjected to a hostile work environment by her co-workers and instructors on account of her Chinese national origin. After raising concerns about this treatment, Myles was denied access to certain computer systems, was not issued pepper spray, was not permitted to work in the field, was denied bus driving training, was erroneously charged with “absence without leave,” and was ultimately terminated. After a multi-day trial, Administrative Law Judge … Kathleen Mulligan found DHS liable for discriminatory and retaliatory conduct against Myles based on her Chinese national origin, and ordered Myles reinstated with an award of back pay and benefits, compensatory damages, compensation for emotional distress, and attorneys’ fees and costs.

Following her reinstatement, Myles consistently received “[e]xcellent” and “[o]utstanding” performance evaluations. But, after several years of uneventful service, Myles reported to ICE that she was again experiencing harassment, this time at the hands of her direct supervisor Armando Lares. As a result, Lares was subject to disciplinary action, including “being placed on administrative duty status” and temporarily losing overtime privileges and the “right to carry a firearm.”

About one month after Lares’ disciplinary action went into effect, he falsely reported to DHS that Myles was illegally housing undocumented Chinese nationals. A team of at least five DHS agents—including David Gassmann and Steven Lovett, both defendants in this case—surveilled Myles for eight months, taking extensive video footage of Myles and her family. When the surveillance revealed that Myles was not illegally housing any undocumented individuals, Gassmann was encouraged by Lovett and other DHS officers, including defendants Brian DeMore, Francis Jackson, and David Marin, to manufacture evidence that would support a criminal case against Myles for wage theft and presented the manufactured evidence to federal law enforcement officials.

Upon review of the evidence the DHS officials had marshalled against Myles, the United States Attorney’s Office refused to press charges. According to Myles’s complaint, the Office concluded that the evidence appeared to be “fabricated” and observed that “the matter [was] an employment issue and not a criminal one.” Undeterred, Gassmann presented the case to the Orange County District Attorney’s Office (“OCDA”); his presentation included knowingly false statements and intentional misrepresentations. The OCDA then filed a criminal complaint against Myles in California state court, alleging one count of grand theft by an employee under California Penal Code § 487(b)(3).

In December 2014, Gassmann and another DHS agent asked Myles to meet with them “for a talk.” When she arrived, they arrested her and transported her to the Santa Ana jail, where she was booked and detained. In connection with the arrest, the OCDA released several press statements “in which false statements were published about [Myles] stating she acted illegally, took advantage of her public position, and was unethical.” About one month later, Jackson, Deputy Field Officer for ICE, recommended that Myles be either suspended indefinitely without pay or terminated. Marin, an ICE Deputy Field Officer, subsequently placed Myles on indefinite suspension without pay, a status that continued until late November 2017.

The state criminal case against Myles was pending for almost three years. During that period, DHS agents tampered with witnesses and committed perjury and obstruction. Myles “underwent significant financial hardship” including selling her property, exhausting her savings, and withdrawing retirement funds to support her family and to pay for her defense. She experienced “significant emotional and physical distress, humiliation, shame, despair, embarrassment, depression, physical and mental pain and suffering and anguish, loss of earnings, loss [of] pay grade, loss of security clearance at her job, loss of the right to carry service-issued and personal firearms as a law enforcement officer, loss of status[ ] and future status, and loss of other benefits.”

OCDA Deputy District Attorney Nichols, who was assigned to prosecute the state criminal case, “became convinced” upon reviewing the evidence—including the 2008 EEOC decision; a Government Accountability Office report detailing widespread defects in overtime oversight within DHS; and video footage demonstrating that Myles was “working longer hours than many of her counterparts” and that the individual clocking out early was not Myles— that the criminal case against Myles “was without merit and filed in bad faith.” On November 13, 2017, Nichols moved to dismiss the criminal case because “she had come to the conclusions that [Myles] was being unlawfully discriminated against”; that Myles was innocent of any wrongdoing; that some of the evidence against Myles had been fabricated; and that DHS was “abusing the office of the OCDA” by using it as a tool “to unfairly prosecut[e]” Myles. The state court granted Nichols’s motion and the case was dismissed….

The Ninth Circuit held that Myles’ malicious prosecution could go forward:

Myles’s malicious prosecution claim was brought against the federal government. As a sovereign, the United States “is immune from suit save as it consents to be sued.” In the FTCA, the federal government waived its sovereign immunity with respect to certain tort claims arising out of wrongdoing committed by federal employees acting within the scope of their employment.

The sovereign immunity waiver in the FTCA is subject to several exceptions, one of which is pertinent here: the federal government has retained sovereign immunity for claims that are “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the” federal government….

Here, Myles alleges that federal government employees “knowingly made false allegations to the OCDA regarding [Myles’s] conduct … that directly led to her criminal prosecution”; “instigated, encouraged, and were actively involved in causing [Myles] to be prosecuted … on the felony charge of grand theft”; and “committed perjury by lying under oath about the charge against [Myles].” She further alleges that, to ensure the criminal case against her would be maintained, DHS officials tampered with witnesses, provided false statements to the OCDA, and fabricated evidence. Myles also alleges that the DHS officials “did not have probable cause nor did they reasonably believe that [Myles] was guilty of the charge against her.” “Their purpose was to retaliate against [Myles]” because she had reported internally that she was again experiencing national origin-based harassment in the workplace.

Getting into specifics, Myles alleges that DHS officials represented to the OCDA that she had “purposefully lied about overtime hours” in a manner that constituted “grand theft by an employee” under California Penal Code § 487(b)(3), even though they knew that she had not lied about her overtime hours. Video evidence, Myles alleges, demonstrated that she was “working longer hours than many of her counterparts” and “the person in the video who … was clocking out early was not, in fact,” Myles. She also alleges that DHS officials doctored evidence that she was submitting false overtime requests, including during a period in which she could not have submitted such requests because she was absent from the office on unpaid administrative leave….

The discretionary function exception was designed to prevent “judicial ‘second-guessing’ of legislative and administrative decisions grounded in social, economic, and political policy.” As decisions to knowingly lie under oath, tamper with witnesses, or fabricate evidence cannot be “grounded in” and are not “susceptible to” such analyses, the discretionary function exception does not provide refuge for such conduct. Put differently, the discretionary function exception “does not apply to law enforcement investigations when a federal employee’s tactics during an investigation had ‘no legitimate policy rationale.'” Conduct of the type alleged by Myles has no role to play in the legitimate functioning of government. Such conduct therefore is not protected by the discretionary function exception….

Our interpretation of the discretionary function exception is supported by the 1973 amendment to the list, in 28 U.S.C § 2680(h), of intentional torts exempted from the FTCA. Historically, the United States retained sovereign immunity for intentional torts committed by government agents, including malicious prosecution. But, following a string of botched drug raids in Collinsville, Illinois that captured national media attention, Congress amended 28 U.S.C. § 2680(h) to allow aggrieved persons to bring “assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution” actions against the federal government arising from the “acts or omissions of investigative or law enforcement officers.” …

As section 2680(h) broadened the application of the FTCA with respect to malicious prosecution actions arising out of the acts or omissions of federal investigative and law enforcement personnel but did not change the discretionary function exception, the two should not be read as coextensive. Yet, if the facts of this case—which, again, involve allegations of perjury, witness tampering, and fabrication of evidence—are insufficient to render Myles’s malicious prosecution claim outside the scope of the discretionary function exception, it is hard to imagine any malicious prosecution action covered by the section 2680(h) carve-out that would survive application of the discretionary function exception.

Any malicious prosecution action against investigative and law enforcement personnel would involve “decision[s] how to investigate, who to investigate, and how to present evidence to the proper authorities.” The district court’s interpretation of the discretionary function exception would thereby render the 1973 addition to section 2680(h) meaningless, in contravention of the “well-established principle of statutory construction that ‘legislative enactments should not be construed to render their provisions mere surplusage.'”

In sum, we conclude that in malicious prosecution cases in which the plaintiff alleges that an investigative or law enforcement official fabricated evidence, tampered with witnesses, lied under oath, or otherwise knowingly offered false testimony to induce criminal charges against the plaintiff, the discretionary function exception does not shield the United States government from liability, as such misconduct does not constitute a policy judgment susceptible to social, economic, or political analysis.

And the court concluded that Myles’ allegations (while still allegations at this point) are sufficiently plausible for the case to go forward.

The post Malicious Prosecution Claim Against DHS Agents Can Go Forward appeared first on Reason.com.

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