The Eleventh Circuit Grapples With Title IX, and the Equal Protection Clause, in the Wake of Bostock

On Friday, a divided panel of the Eleventh Circuit decided Drew Adams v. School Board of St. Johns County, Florida. This case found that Title IX requires a school to allow a transgender boy to use the boys’ bathroom. Bostock did not decide this question. Justice Gorsuch insisted, “we do not purport to address bathrooms, locker rooms, or anything else of the kind.” In dissent, Justice Alito seemed skeptical. He wrote:

Thus, a person who has not undertaken any physical transitioning may claim the right to use the bathroom or locker room assigned to the sex with which the individual identifies at that particular time. The Court provides no clue why a transgender person’s claim to such bathroom or locker room access might not succeed.

Alito’s dissent, which raised a parade of horribles, may come to resemble Justice Scalia’s Windsor dissent. In the lead-up to Obergefell, district courts gleefully cited Scalia when they set aside state marriage laws.

Judge Martin wrote the majority opinion in Adams. Chief Judge Pryor wrote a vigorous dissent. Indeed, he wrote, “I dissent,” rather than the traditional “I respectfully dissent.” (I call these mic-drops disrespectful dissents). The majority and dissent disagreed on a basic question that affects the framing of both the Title IX issue, as well as the Equal Protection issue.

According to the majority, the school’s policy singles out transgender students for special burdens. And, per Bostock, “sex” is an essential ingredient in that form of discrimination.

The School Board’s bathroom policy singles out transgender students for differential treatment because they are transgender… identity.” In this way, the policy places a special burden on transgender students because their gender identity does not match their sex assigned at birth. And, as this Court announced in Glenn, “discrimination against a transgender individual because of [his or] her gender-nonconformity is sex discrimination, whether it’s described as being on the basis of sex or gender.”5 663 F.3d at1317; cf. Bostock v. Clayton County, 590 U.S. ___,140S. Ct.1731, 1741(2020)(confirming that “it is impossible to discriminate against a person for being . . . transgender without discriminating against that individual based on sex”). We therefore apply heightened scrutiny to the School Board bathroom policy.

Chief Judge Pryor views the case in a very different fashion: denying a student access to a bathroom based on his biological sex is not discrimination on the basis of transgender status. He writes:

To be sure, Bostock clarified that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex” in the context of employment discrimination under Title VII. Id. at 1747; see also Glenn v. Brumby, 663 F.3d 1312, 1318 (11th Cir. 2011) (holding that discrimination based on gender nonconformity constitutes sex discrimination regardless of whether the victim is transgender or not). But this appeal concerns the converse question: whether discrimination on the basis of sex necessarily entails discrimination based on transgender status. Of course, a policy can classify on the basis of sex without also classifying on the basis of transgender status. See, e.g., Nguyen, 533 U.S. at 60. Indeed, Bostock expressly disclaimed reaching any conclusion on the permissibility of sex-separated bathrooms and locker rooms. …. So the relevant question is whether excluding students of one sex from the bathroom of the other sex substantially advances the schools’ privacy objectives. The question is not, as the majority frames it, whether excluding transgender students from the bathroom of their choice furthers important privacy objectives

As I read Pryor’s dissent, the fact that Adams is transgender is irrelevant for the Title IX analysis. What matters is that the school has separated bathrooms by sex.

The majority opinion elides this entire analysis by misunderstanding both the classification and privacy interests at issue. It contends that the policy triggers heightened scrutiny not because it separates bathrooms by sex but because it purportedly imposes “differential treatment” on transgender students. Majority Op. at 12. In doing so, the majority misstates the school policy, conflates sex-based classifications with transgender-based classifications, and contravenes Supreme Court precedent. Compounding its errors, the majority then ignores fundamental understandings of why bathrooms are separated on the basis of sex by rejecting long-standing privacy rationales for sex-separated bathrooms.

The majority opinion says it is not necessary to define sex, because the discrimination was on the basis of transgender status.

Our dissenting colleague accuses us of shirking our duty because we do not delve into the meaning of “sex” in Title IX. To the contrary, we follow the lead of the Supreme Court in Bostock, which found it unnecessary to perform that analysis as to Title VII. We need not interpret the term “sex” to recognize that Mr. Adams suffered discrimination at school because he was transgender.

The majority opinion adds that the dissent does not recognize what it means to be a transgender boy. Therefore, the dissent does not consider the relevance of Adams’s transgender status:

The dissenting opinion’s central flaw is that it does not meaningfully reckon with what it means for Mr. Adams to be a transgender boy…. Because the dissent does not consider Mr. Adams’s transgender status analytically relevant, it expresses the view that allowing Mr. Adams to use the boys’ restroom erodes restroom divisions for all. This argument cannot stand together with the fact, found by the District Court, that Mr. Adams is “like any other boy.”

And, the majority contends, that the same but-for causation from Bostock resolves this case:

This being the Board’s view, it argues that Mr. Adams was treated just the same as all girl students at Nease High School. But the School Board, like the dissenting opinion, misapprehends Bostock. Bostock explained that if an employer fires a transgender female employee but retains a non-transgender female employee, this differential treatment is discrimination because of sex. In the same way, Mr. Adams can show discrimination by comparing the School Board’s treatment of him, as a transgender boy, to its treatment of non-transgender boys.

This dichotomy between the majority and the dissent dictates the outcome of the case. Martin and Pryor lay out the two positions cogently. They were writing about two completely different cases, like two ships passing in the night.

I am inclined to think Pryor was right, but I also thought Bostock was wrong. Indeed, throughout the opinion, I felt like Pryor was fighting with one hand tied behind his back–more precisely, Neil Gorsuch tied up that hand. The majority cited Bostock over and over again to promote a hyper-literal reading of Title IX, that rejected any extraneous evidence to give meaning to the statute–even as Pryor cited decades of precedent and practice that recognized the validity of sex-segregated bathrooms. Indeed, Pryor cites FN19 of United States v. Virginia, in which the Notorious RBG approved separating bathrooms based on physiological differences. (I flagged that opinion as grounds for her cancellation). He wrote:

Not long ago, a suit challenging the lawfulness of separating bathrooms on the basis of sex would have been unthinkable. This practice has long been the common-sense example of an acceptable classification on the basis of sex. And for good reason: it protects well-established privacy interests in using the bathroom away from the opposite sex

I don’t know how this case shakes out on appeal. Justice Gorsuch’s textualism rejects “common sense.” And Bostock and McGirt teach us that stare decisis only cuts in favor of Gorsuch’s reading of statutes, and not against it. Plus, we know he is committed to but-for causation. But the bathroom case is different than Bostock because the segregation is expressly sex-based. Stay tuned.

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The Eleventh Circuit Grapples With Title IX, and the Equal Protection Clause, in the Wake of Bostock

On Friday, a divided panel of the Eleventh Circuit decided Drew Adams v. School Board of St. Johns County, Florida. This case found that Title IX requires a school to allow a transgender boy to use the boys’ bathroom. Bostock did not decide this question. Justice Gorsuch insisted, “we do not purport to address bathrooms, locker rooms, or anything else of the kind.” In dissent, Justice Alito seemed skeptical. He wrote:

Thus, a person who has not undertaken any physical transitioning may claim the right to use the bathroom or locker room assigned to the sex with which the individual identifies at that particular time. The Court provides no clue why a transgender person’s claim to such bathroom or locker room access might not succeed.

Alito’s dissent, which raised a parade of horribles, may come to resemble Justice Scalia’s Windsor dissent. In the lead-up to Obergefell, district courts gleefully cited Scalia when they set aside state marriage laws.

Judge Martin wrote the majority opinion in Adams. Chief Judge Pryor wrote a vigorous dissent. Indeed, he wrote, “I dissent,” rather than the traditional “I respectfully dissent.” (I call these mic-drops disrespectful dissents). The majority and dissent disagreed on a basic question that affects the framing of both the Title IX issue, as well as the Equal Protection issue.

According to the majority, the school’s policy singles out transgender students for special burdens. And, per Bostock, “sex” is an essential ingredient in that form of discrimination.

The School Board’s bathroom policy singles out transgender students for differential treatment because they are transgender… identity.” In this way, the policy places a special burden on transgender students because their gender identity does not match their sex assigned at birth. And, as this Court announced in Glenn, “discrimination against a transgender individual because of [his or] her gender-nonconformity is sex discrimination, whether it’s described as being on the basis of sex or gender.”5 663 F.3d at1317; cf. Bostock v. Clayton County, 590 U.S. ___,140S. Ct.1731, 1741(2020)(confirming that “it is impossible to discriminate against a person for being . . . transgender without discriminating against that individual based on sex”). We therefore apply heightened scrutiny to the School Board bathroom policy.

Chief Judge Pryor views the case in a very different fashion: denying a student access to a bathroom based on his biological sex is not discrimination on the basis of transgender status. He writes:

To be sure, Bostock clarified that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex” in the context of employment discrimination under Title VII. Id. at 1747; see also Glenn v. Brumby, 663 F.3d 1312, 1318 (11th Cir. 2011) (holding that discrimination based on gender nonconformity constitutes sex discrimination regardless of whether the victim is transgender or not). But this appeal concerns the converse question: whether discrimination on the basis of sex necessarily entails discrimination based on transgender status. Of course, a policy can classify on the basis of sex without also classifying on the basis of transgender status. See, e.g., Nguyen, 533 U.S. at 60. Indeed, Bostock expressly disclaimed reaching any conclusion on the permissibility of sex-separated bathrooms and locker rooms. …. So the relevant question is whether excluding students of one sex from the bathroom of the other sex substantially advances the schools’ privacy objectives. The question is not, as the majority frames it, whether excluding transgender students from the bathroom of their choice furthers important privacy objectives

As I read Pryor’s dissent, the fact that Adams is transgender is irrelevant for the Title IX analysis. What matters is that the school has separated bathrooms by sex.

The majority opinion elides this entire analysis by misunderstanding both the classification and privacy interests at issue. It contends that the policy triggers heightened scrutiny not because it separates bathrooms by sex but because it purportedly imposes “differential treatment” on transgender students. Majority Op. at 12. In doing so, the majority misstates the school policy, conflates sex-based classifications with transgender-based classifications, and contravenes Supreme Court precedent. Compounding its errors, the majority then ignores fundamental understandings of why bathrooms are separated on the basis of sex by rejecting long-standing privacy rationales for sex-separated bathrooms.

The majority opinion says it is not necessary to define sex, because the discrimination was on the basis of transgender status.

Our dissenting colleague accuses us of shirking our duty because we do not delve into the meaning of “sex” in Title IX. To the contrary, we follow the lead of the Supreme Court in Bostock, which found it unnecessary to perform that analysis as to Title VII. We need not interpret the term “sex” to recognize that Mr. Adams suffered discrimination at school because he was transgender.

The majority opinion adds that the dissent does not recognize what it means to be a transgender boy. Therefore, the dissent does not consider the relevance of Adams’s transgender status:

The dissenting opinion’s central flaw is that it does not meaningfully reckon with what it means for Mr. Adams to be a transgender boy…. Because the dissent does not consider Mr. Adams’s transgender status analytically relevant, it expresses the view that allowing Mr. Adams to use the boys’ restroom erodes restroom divisions for all. This argument cannot stand together with the fact, found by the District Court, that Mr. Adams is “like any other boy.”

And, the majority contends, that the same but-for causation from Bostock resolves this case:

This being the Board’s view, it argues that Mr. Adams was treated just the same as all girl students at Nease High School. But the School Board, like the dissenting opinion, misapprehends Bostock. Bostock explained that if an employer fires a transgender female employee but retains a non-transgender female employee, this differential treatment is discrimination because of sex. In the same way, Mr. Adams can show discrimination by comparing the School Board’s treatment of him, as a transgender boy, to its treatment of non-transgender boys.

This dichotomy between the majority and the dissent dictates the outcome of the case. Martin and Pryor lay out the two positions cogently. They were writing about two completely different cases, like two ships passing in the night.

I am inclined to think Pryor was right, but I also thought Bostock was wrong. Indeed, throughout the opinion, I felt like Pryor was fighting with one hand tied behind his back–more precisely, Neil Gorsuch tied up that hand. The majority cited Bostock over and over again to promote a hyper-literal reading of Title IX, that rejected any extraneous evidence to give meaning to the statute–even as Pryor cited decades of precedent and practice that recognized the validity of sex-segregated bathrooms. Indeed, Pryor cites FN19 of United States v. Virginia, in which the Notorious RBG approved separating bathrooms based on physiological differences. (I flagged that opinion as grounds for her cancellation). He wrote:

Not long ago, a suit challenging the lawfulness of separating bathrooms on the basis of sex would have been unthinkable. This practice has long been the common-sense example of an acceptable classification on the basis of sex. And for good reason: it protects well-established privacy interests in using the bathroom away from the opposite sex

I don’t know how this case shakes out on appeal. Justice Gorsuch’s textualism rejects “common sense.” And Bostock and McGirt teach us that stare decisis only cuts in favor of Gorsuch’s reading of statutes, and not against it. Plus, we know he is committed to but-for causation. But the bathroom case is different than Bostock because the segregation is expressly sex-based. Stay tuned.

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Trump Teases Executive Order On Pre-Existing Protections, I Suspect, To Help With ACA Litigation

On Friday, President Trump teased a new executive order on healthcare:

“That’s a big thing. I’ve always been very strongly in favor. We have to cover pre-existing conditions so we will be pursuing a major executive order requiring health insurance companies to cover all pre-existing conditions for all of its customers. This has never been done before.”

Of course, the media pounced and said the ACA–the law Trump is trying to destroy–already requires insurers to protect people with pre-existing protections. Specifically, the law’s guaranteed issue and community rating provisions (GICR) bar insurers from denying coverage, or charging higher premiums, to people with pre-existing condition.

So what is Trump up to? I can offer some uninformed speculation.

Ilya Shapiro and I filed the Cato Institute’s amicus brief in California v. Texas. We proposed that the Trump administration could require, by executive action, insurers on the ACA exchange to comply with guaranteed issue and community rating. But why would such an executive action be needed if the ACA is in place? Well, the ACA is currently being challenged. And perhaps one factor that could aid the Court’s deliberations would be an assurance that people with pre-existing protections could still obtain coverage on the exchanges, even if guaranteed issue and community rating (GICR) were found to be inseverable.

Here is an excerpt from our brief.

The analysis for individual market, on-exchange policies is different. Hurley and Nantz are not eligible for subsidies. Declarations, supra. But they could still purchase an unsubsidized plan on the exchanges. Halting GICR with respect to policies sold on the exchanges would be an unnecessarily overbroad remedy. So long as the plaintiffs can purchase off-market non-compliant plans, or none at all, their injuries will be remedied. Plaintiffs cannot demand a greater remedy to alter all policies offered on government exchanges. Moreover, people who seek to buy a government-sponsored product on a government exchange cannot complain about cumbersome regulations. [FN 12] Courts need go no further than issue a declaration with respect to individual market, off-exchange policies. “[T]he judicial power is, fundamentally, the power to render judgments in individual cases.” Murphy, 138 S. Ct. at 1485 (Thomas, J., concurring). No more, and no less. Hurley and Nantz, meanwhile, and all those who object to being forced to purchase unwanted policies, will have other options.

[FN12]: This narrow remedy would address concerns raised by the Federal Respondents about creating a “potentially unstable insurance market.” See Brief for the Federal Respondents at 44–45. The executive branch could also require insurance providers on the exchanges to comply with the ACA’s GICR provisions, regardless of the outcome of this litigation.

Let’s see if the Trump executive order reflects the strategy in our brief. I have no inside information. But I wouldn’t be surprised if the SG uses a similar strategy.

I will have much more to say about our amicus brief, as well as the Court’s recent severability decisions (Seila Law and AAPC), as the arguments draw near.

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Trump Teases Executive Order On Pre-Existing Protections, I Suspect, To Help With ACA Litigation

On Friday, President Trump teased a new executive order on healthcare:

“That’s a big thing. I’ve always been very strongly in favor. We have to cover pre-existing conditions so we will be pursuing a major executive order requiring health insurance companies to cover all pre-existing conditions for all of its customers. This has never been done before.”

Of course, the media pounced and said the ACA–the law Trump is trying to destroy–already requires insurers to protect people with pre-existing protections. Specifically, the law’s guaranteed issue and community rating provisions (GICR) bar insurers from denying coverage, or charging higher premiums, to people with pre-existing condition.

So what is Trump up to? I can offer some uninformed speculation.

Ilya Shapiro and I filed the Cato Institute’s amicus brief in California v. Texas. We proposed that the Trump administration could require, by executive action, insurers on the ACA exchange to comply with guaranteed issue and community rating. But why would such an executive action be needed if the ACA is in place? Well, the ACA is currently being challenged. And perhaps one factor that could aid the Court’s deliberations would be an assurance that people with pre-existing protections could still obtain coverage on the exchanges, even if guaranteed issue and community rating (GICR) were found to be inseverable.

Here is an excerpt from our brief.

The analysis for individual market, on-exchange policies is different. Hurley and Nantz are not eligible for subsidies. Declarations, supra. But they could still purchase an unsubsidized plan on the exchanges. Halting GICR with respect to policies sold on the exchanges would be an unnecessarily overbroad remedy. So long as the plaintiffs can purchase off-market non-compliant plans, or none at all, their injuries will be remedied. Plaintiffs cannot demand a greater remedy to alter all policies offered on government exchanges. Moreover, people who seek to buy a government-sponsored product on a government exchange cannot complain about cumbersome regulations. [FN 12] Courts need go no further than issue a declaration with respect to individual market, off-exchange policies. “[T]he judicial power is, fundamentally, the power to render judgments in individual cases.” Murphy, 138 S. Ct. at 1485 (Thomas, J., concurring). No more, and no less. Hurley and Nantz, meanwhile, and all those who object to being forced to purchase unwanted policies, will have other options.

[FN12]: This narrow remedy would address concerns raised by the Federal Respondents about creating a “potentially unstable insurance market.” See Brief for the Federal Respondents at 44–45. The executive branch could also require insurance providers on the exchanges to comply with the ACA’s GICR provisions, regardless of the outcome of this litigation.

Let’s see if the Trump executive order reflects the strategy in our brief. I have no inside information. But I wouldn’t be surprised if the SG uses a similar strategy.

I will have much more to say about our amicus brief, as well as the Court’s recent severability decisions (Seila Law and AAPC), as the arguments draw near.

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The Hiroshima Myth

The Hiroshima Myth

Tyler Durden

Fri, 08/07/2020 – 23:45

Authored by John Denson via The Mises Institute,

Every year during the first two weeks of August the mass news media and many politicians at the national level trot out the “patriotic” political myth that the dropping of the two atomic bombs on Japan in August of 1945 caused them to surrender, and thereby saved the lives of anywhere from five hundred thousand to 1 million American soldiers, who did not have to invade the islands.

Opinion polls over the last fifty years show that American citizens overwhelmingly (between 80 and 90 percent) believe this false history which, of course, makes them feel better about killing hundreds of thousands of Japanese civilians (mostly women and children) and saving American lives to accomplish the ending of the war.

The best book, in my opinion, to explode this myth is The Decision to Use the Bomb by Gar Alperovitz, because it not only explains the real reasons the bombs were dropped, but also gives a detailed history of how and why the myth was created that this slaughter of innocent civilians was justified, and therefore morally acceptable. The essential problem starts with President Franklin Roosevelt’s policy of unconditional surrender, which was reluctantly adopted by Churchill and Stalin, and which President Truman decided to adopt when he succeeded Roosevelt in April of 1945. Hanson Baldwin was the principal writer for the New York Times who covered World War II and he wrote an important book immediately after the war entitled Great Mistakes of the War. Baldwin concludes that the unconditional surrender policy

was perhaps the biggest political mistake of the war….Unconditional surrender was an open invitation to unconditional resistance; it discouraged opposition to Hitler, probably lengthened the war, cost us lives, and helped to lead to the present aborted peace.

The stark fact is that the Japanese leaders, both military and civilian, including the emperor, were willing to surrender in May of 1945 if the emperor could remain in place and not be subjected to a war crimes trial after the war. This fact became known to President Truman as early as May of 1945. The Japanese monarchy was one of the oldest in all of history, dating back to 660 BC. The Japanese religion added the belief that all the emperors were the direct descendants of the sun goddess, Amaterasu. The reigning Emperor Hirohito was the 124th in the direct line of descent. After the bombs were dropped on August 6 and 9 of 1945, and their surrender soon thereafter, the Japanese were allowed to keep their emperor on the throne and he was not subjected to any war crimes trial. The emperor, Hirohito, came on the throne in 1926 and continued in his position until his death in 1989. Since President Truman, in effect, accepted the conditional surrender offered by the Japanese as early as May of 1945, the question is posed, “Why then were the bombs dropped?”

The author Alperovitz gives us the answer in great detail which can only be summarized here, but he states,

We have noted a series of Japanese peace feelers in Switzerland which OSS Chief William Donovan reported to Truman in May and June [1945]. These suggested, even at this point, that the U.S. demand for unconditional surrender might well be the only serious obstacle to peace. At the center of the explorations, as we also saw, was Allen Dulles, chief of OSS [Office of Strategic Services] operations in Switzerland (and subsequently Director of the CIA). In his 1966 book The Secret Surrender, Dulles recalled that “On July 20, 1945, under instructions from Washington, I went to the Potsdam Conference and reported there to Secretary [of War] Stimson on what I had learned from Tokyo — they desired to surrender if they could retain the Emperor and their constitution as a basis for maintaining discipline and order in Japan after the devastating news of surrender became known to the Japanese people.”

It is documented by Alperovitz that Stimson reported this directly to Truman. Alperovitz further points out in detail the documentary proof that every top presidential civilian and military advisor, with the exception of James Byrnes, along with Prime Minister Churchill and his top British military leadership, urged Truman to revise the unconditional surrender policy so as to allow the Japanese to surrender and keep their emperor. All this advice was given to Truman prior to the Potsdam Proclamation which occurred on July 26, 1945. This proclamation made a final demand upon Japan to surrender unconditionally or suffer drastic consequences.

Another startling fact about the military connection to the dropping of the bomb is the lack of knowledge on the part of General MacArthur about the existence of the bomb and whether it was to be dropped. Alperovitz states,

MacArthur knew nothing about advance planning for the atomic bomb’s use until almost the last minute. Nor was he personally in the chain of command in this connection; the order came straight from Washington. Indeed, the War Department waited until five days before the bombing of Hiroshima even to notify MacArthur — the commanding general of the U.S. Army Forces in the Pacific — of the existence of the atomic bomb.

Alperovitz makes it very clear that the main person Truman was listening to while he ignored all of this civilian and military advice was James Byrnes, the man who virtually controlled Truman at the beginning of his administration. Byrnes was one of the most experienced political figures in Washington, having served for over thirty years in both the House and the Senate. He had also served as a United States Supreme Court Justice, and at the request of President Roosevelt, he resigned that position and accepted the role in the Roosevelt administration of managing the domestic economy. Byrnes went to the Yalta Conference with Roosevelt and then was given the responsibility to get Congress and the American people to accept the agreements made at Yalta.

When Truman became a senator in 1935, Byrnes immediately became his friend and mentor and remained close to Truman until Truman became president. Truman never forgot this and immediately called on Byrnes to be his number-two man in the new administration. Byrnes had expected to be named the vice presidential candidate [to FDR] to replace [Henry A.] Wallace and had been disappointed when Truman had been named, yet he and Truman remained very close. Byrnes had also been very close to Roosevelt, while Truman was kept in the dark by Roosevelt most of the time he served as vice president. Truman asked Byrnes immediately, in April, to become his secretary of state but they delayed the official appointment until July 3, 1945, so as not to offend the incumbent. Byrnes had also accepted a position on the interim committee which had control over the policy regarding the atom bomb, and therefore, in April 1945 became Truman’s main foreign policy advisor, and especially the advisor on the use of the atomic bomb. It was Byrnes who encouraged Truman to postpone the Potsdam Conference and his meeting with Stalin until they could know, at the conference, if the atomic bomb was successfully tested. While at the Potsdam Conference the experiments proved successful and Truman advised Stalin that a new massively destructive weapon was now available to America, which Byrnes hoped would make Stalin back off from any excessive demands or activity in the postwar period.

Truman secretly gave the orders on July 25, 1945, that the bombs would be dropped in August while he was to be en route back to America. On July 26, he issued the Potsdam Proclamation, or ultimatum, to Japan to surrender, leaving in place the unconditional surrender policy, thereby causing both Truman and Byrnes to believe that the terms would not be accepted by Japan.

The conclusion drawn unmistakably from the evidence presented is that Byrnes is the man who convinced Truman to keep the unconditional surrender policy and not accept Japan’s surrender so that the bombs could actually be dropped, thereby demonstrating to the Russians that America had a new forceful leader in place, a “new sheriff in Dodge” who, unlike Roosevelt, was going to be tough with the Russians on foreign policy and that the Russians needed to “back off” during what would become known as the “Cold War.”

A secondary reason was that Congress would now be told about why they had made the secret appropriation to a Manhattan Project and the huge expenditure would be justified by showing that not only did the bombs work but that they would bring the war to an end, make the Russians back off, and enable America to become the most powerful military force in the world.

If the surrender by the Japanese had been accepted between May and the end of July of 1945 and the emperor had been left in place, as in fact he was after the bombing, this would have kept Russia out of the war. Russia agreed at Yalta to come into the Japanese war three months after Germany surrendered. In fact, Germany surrendered on May 8, 1945, and Russia announced on August 8, (exactly three months thereafter) that it was abandoning its neutrality policy with Japan and entering the war. Russia’s entry into the war for six days allowed them to gain tremendous power and influence in China, Korea, and other key areas of Asia. The Japanese were deathly afraid of communism and if the Potsdam Proclamation had indicated that America would accept the conditional surrender allowing the emperor to remain in place and informed the Japanese that Russia would enter the war if they did not surrender, then this would surely have assured a quick Japanese surrender.

The second question that Alperovitz answers in the last half of the book is how and why the Hiroshima myth was created. The story of the myth begins with the person of James B. Conant, the president of Harvard University, who was a prominent scientist, having initially made his mark as a chemist working on poison gas during World War I. During World War II, he was chairman of the National Defense Research Committee from the summer of 1941 until the end of the war and he was one of the central figures overseeing the Manhattan Project. Conant became concerned about his future academic career, as well as his positions in private industry, because various people began to speak out concerning why the bombs were dropped. On September 9, 1945, Admiral William F. Halsey, commander of the Third Fleet, was publically quoted extensively as stating that the atomic bomb was used because the scientists had a “toy and they wanted to try it out.” He further stated, “The first atomic bomb was an unnecessary experiment….It was a mistake to ever drop it.” Albert Einstein, one of the world’s foremost scientists, who was also an important person connected with the development of the atomic bomb, responded and his words were headlined in the New York Times: “Einstein Deplores Use of Atom Bomb.” The story reported that Einstein stated that “A great majority of scientists were opposed to the sudden employment of the atom bomb.” In Einstein’s judgment, the dropping of the bomb was a political-diplomatic decision rather than a military or scientific decision.

Probably the person closest to Truman, from the military standpoint, was Chairman of the Joint Chiefs of Staff Admiral William Leahy, and there was much talk that he also deplored the use of the bomb and had strongly advised Truman not to use it, but advised rather to revise the unconditional surrender policy so that the Japanese could surrender and keep the emperor. Leahy’s views were later reported by Hanson Baldwin in an interview that Leahy “thought the business of recognizing the continuation of the Emperor was a detail which should have been solved easily.” Leahy’s secretary, Dorothy Ringquist, reported that Leahy told her on the day the Hiroshima bomb was dropped, “Dorothy, we will regret this day. The United States will suffer, for war is not to be waged on women and children.” Another important naval voice, the commander in chief of the US Fleet and chief of naval operations, Ernest J. King, stated that the naval blockade and prior bombing of Japan in March of 1945 had rendered the Japanese helpless and that the use of the atomic bomb was both unnecessary and immoral. Also, the opinion of Fleet Admiral Chester W. Nimitz, given in a press conference on September 22, 1945, was reported as: “The Admiral took the opportunity of adding his voice to those insisting that Japan had been defeated before the atomic bombing and Russia’s entry into the war.” In a subsequent speech at the Washington Monument on October 5, 1945, Admiral Nimitz stated, “The Japanese had, in fact, already sued for peace before the atomic age was announced to the world with the destruction of Hiroshima and before the Russian entry into the war.”

It was learned also that on or about July 20, 1945, General Eisenhower had urged Truman, in a personal visit, not to use the atomic bomb. Eisenhower’s assessment was, “It wasn’t necessary to hit them with that awful thing….[T]o use the atomic bomb, to kill and terrorize civilians, without even attempting [negotiations], was a double crime.” Eisenhower also stated that it wasn’t necessary for Truman to “succumb” to Byrnes.

James Conant came to the conclusion that some important person in the administration must go public to show that the dropping of the bombs was a military necessity, thereby saving the lives of hundreds of thousands of American soldiers, so he approached Harvey Bundy and his son, McGeorge Bundy. It was agreed by them that the most important person to create this myth was Secretary of War Henry Stimson. It was decided that Stimson would write a long article to be widely circulated in a prominent national magazine. This article was revised repeatedly by McGeorge Bundy and Conant before it was published in Harper’s Magazine in February of 1947. The long article became the subject of a front-page article and editorial in the New York Timesand in the editorial it was stated, “There can be no doubt that the president and Mr. Stimson are right when they mention that the bomb caused the Japanese to surrender.” Later, in 1959, President Truman specifically endorsed this conclusion, including the idea that it saved the lives of a million American soldiers. This myth has been renewed annually by the news media and various political leaders ever since.

It is very pertinent that in the memoir of Henry Stimson entitled On Active Service in Peace and War, he states, “Unfortunately, I have lived long enough to know that history is often not what actually happened but what is recorded as such.”

To bring this matter more into focus from the human tragedy standpoint, I recommend the reading of a book entitled Hiroshima Diary: The Journal of a Japanese Physician, August 6–September 30, 1945, by Michiko Hachiya. He was a survivor of Hiroshima and kept a daily diary about the women, children, and old men that he treated on a daily basis in the hospital. The doctor was badly injured himself but recovered enough to help others and his account of the personal tragedies of innocent civilians who were either badly burned or died as a result of the bombing puts the moral issue into a clear perspective for all of us to consider.

Now that we live in the nuclear age and there are enough nuclear weapons spread around the world to destroy civilization, we need to face the fact that America is the only country to have used this awful weapon and that it was unnecessary to have done so. If Americans would come to recognize the truth, rather than the myth, it might cause such a moral revolt that we would take the lead throughout the world in realizing that wars in the future may well become nuclear and therefore all wars must be avoided at almost any cost. Hopefully, our knowledge of science has not outrun our ability to exercise prudent and humane moral and political judgment to the extent that we are destined for extermination.

via ZeroHedge News https://ift.tt/33EOwdG Tyler Durden

Airline Will Pay Medical & Funeral Costs To Get People Flying Again In COVID-19 World

Airline Will Pay Medical & Funeral Costs To Get People Flying Again In COVID-19 World

Tyler Durden

Fri, 08/07/2020 – 23:25

At a moment the trade union for the airline industry, International Air Transport Association (IATA), has issued a dire prediction laying out that it doesn’t expect air travel to recover to pre-pandemic levels until at least after 2024, one major foreign carrier is rolling out with an unexpected, deeply unorthodox policy to gem up business and attention. 

Emirates, the Dubai-based state-owned airline and flag carrier of the United Arab Emirates, is now offering passengers a ‘safety net’ of sorts, telling customers that if they catch coronavirus while traveling on their flights, the airline will cover all costs related to medical treatment, hotel quarantine, and even their funeral in the event of death.

Emirates file image

The desperate measure — and no doubt costly in terms of the airline’s insurance premiums — comes as Emirates says it expects to cut as many as 9,000 jobs in the coming weeks.

Billing itself as “the first airline in the world to offer free, global cover for COVID-19 related costs,” it announced the policy on its website late last week:

Emirates customers can travel with confidence, as the airline will cover medical expenses of up to EUR 150,000 [$175,000] and quarantine costs of EUR 100 per day for 14 days, should they be diagnosed with COVID-19 during their travel, while they are away from home.

Emirates Group Chairman Sheikh Ahmed bin Saeed Al Maktoum described that the measure can give travelers some assurances during extremely unpredictable times, hopefully getting them back to flying long distance routes.

“We know people are yearning to fly as borders around the world gradually re-open, but they are seeking flexibility and assurances should something unforeseen happen during their travel,” he said.

Flying in a COVID-19 world, via “Airline Ratings”

The airline said the policy will remain in effect through the end of October, and is valid for up to a month from the beginning of a passenger’s journey. Though it’s only been in effect for a few days at this point, it’s unclear if anyone has made a claim yet through the “free” COVID-19 insurance policy.

The New York Post notes that the available medical coverage for passengers who become hospitalized for the virus is significant: “Even sick passengers who don’t pass away after traveling with the airline can receive up to $176,000 in expenses as well as $118 per day to cover quarantine accommodations for up to two weeks,” according to the Post report.

And given the resulting positive media coverage the Emirates is getting from the unusual initiative, it’s likely other international carriers will follow suit, though most may not want to take the hit insurance-wise. 

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“I Started A Local Gun And Preparedness Club… And Leftists Tried To Interfere”

“I Started A Local Gun And Preparedness Club… And Leftists Tried To Interfere”

Tyler Durden

Fri, 08/07/2020 – 23:05

Authored by Brandon Smith via Alt-Market.com,

I live in the mountains outside a small town in rural Montana, a place you might assume is conservative through and through, and it is, for the most part. However, one rule I have found to be universal no matter where in the US I live or visit is that regardless of how conservative the population of a place is, leftists are almost ALWAYS entrenched into city politics and they almost always run the local newspapers.

In the past I found this to be a strange thing; why are the viewpoints and ideals of most of the city government and the local journalists the complete opposite of the majority of the citizenry in conservative communities?

I did not understand until later that this is a product of misaligned priorities. Leftists (specifically extreme leftists) seems to gravitate to positions of influence, even those we might consider small and inconsequential, because they see these positions as an opportunity to exert power over others. Conservatives tend to not care as much about having power over others unless they are a direct threat, and so we don’t have any interest in wasting our precious free time climbing our way through a faceless bureaucracy.

I actually prefer that mindset. I like the fact that conservatives aren’t always scrambling for position or power. That said, it might behoove us to pay better attention to who is in control of our local governments, because it may cause serious problems for us down the road.

For many years now I have been working with a group of people who have been preparing for the events that are happening today, including economic crisis, supply chain disruptions, civil unrest and government overreach. While many of these groups seek to remain private, I feel it is time for bigger discussions with the wider community on what people plan to do if the dangerous situation does not improve. In other words, are they going to work together? Or, are they going to remain isolated from each other?

This is a vital question, because it is becoming increasingly possible that a full spectrum collapse will strike the US in the near term. It is time for preppers and liberty minded people to start gauging the sentiment of the community around them and seeking out like-minded individuals. The more active the community is in its own survival, the less likely they will be to conform to draconian rules or fear.

Private groups should remain private, and so should the extent of your preps. But, it is foolish to think that you are going to survive a collapse on your own without working with others in the community. Think of it this way, if your circle of security is only the size of your property, when trouble arrives it will already be on your doorstep (in other words, you are dead if the attackers are organized and prepared). If your circle of security is your entire town or county, then when trouble arrives you might actually have time to respond.

Going “gray man” is an extremely short term solution. Eventually, you will be caught alone and unaware and then all the energy and time and money you put into your preps will have been wasted and someone else will be enjoying the fruits of your labor.

Another problem I see is that conservatives are far less adept at organization than the political left; we tend to be more spontaneous when we group together for a cause. I’m not saying we need our own Antifa or BLM, but we do need to put more effort into working together locally and minimizing our exposure to threats. Conservatives and liberty activists often feel alone, even though there are millions of us out there, and it’s because we refuse to organize in any practical way for fear of ending up on a “list”.

It’s the threat of being on “the list” that controls conservatives. The list doesn’t even need to exist in real life and we are still dominated by it. I hear it all the time, the “nail that sticks up will get hammered down”. I say, the nail that keeps its head down is more easily stepped on.

These are some of the reasons I decided to engage with the larger community by starting a local club that discusses firearms, preparedness and current events. I put the word out in as many places as I could, including tacking up fliers around town. These days, it’s hard for anyone to argue that prepping is a “silly idea” for “kooky conspiracy theorists”. We have been proven right, everyone else has been proven wrong, but that doesn’t mean our work ends here; we have to continue to educate as many people as possible on how it’s done while there’s still time. The more we do this, the safer everyone is.

The initial response was overwhelmingly positive. A lot of people are ready for this kind of information, and setting up the discussions in a more public forum gives people a greater sense of involvement and shows them they are not alone in their concerns. To that end I decided to hold the discussion at a local public park.

Then, I started getting emails and friends of mine started getting angry Facebook responses when discussing the club…

Officials from the city council using the primary city government email were not happy, though they did not identify themselves by name.

They claimed the club could not hold an “event” in the park unless we got permission and permits from the city council, along with insurance. If we did not, then police would be sent to kick us out of the park.

I thought this was rather bizarre; I didn’t expect hundreds of people to show up to the club meeting, maybe a couple dozen at most. The requirements these people from the city council demanded were traditionally for large events with hundreds or thousands of people. Getting permission would have taken weeks, and the emails suggested that permission was not guaranteed by stating “IF we approve”.

I could have held a meeting on private property, but using the city park was symbolic of open community engagement; the people of the area were supposed to feel welcome to participate and maybe this is what annoyed the lefties the most.  They feel like they own that wheelhouse.  Frankly, parks are public property paid for with public dollars and the community has every right to use them for free assembly. But if you think this is common knowledge think again; some politicians and officials think otherwise.

I responded as I usually do to these kinds of things, by digging my heels in. I thoroughly researched the use and legality of public parks for free assembly and found that as long as your group is not blocking access to the park for other people, blocking roads or engaged in criminal activity then the demands for permits do not usually hold up in court and removal by police is not justified. Constitutionally, you are protected.

I emailed the official or officials back and reminded them that they risk a civil court issue by trying to stop people’s free speech on public property, and warned them that the city would be subject to bad press as well. I was perfectly ready to refuse removal and to be arrested if it came to that.

Another interesting discovery: The park in question was host to a bunch of BLM protesters only two weeks earlier. Did they have to get permits and insurance to hold their “event” in the park?

I decided to reach out to the only conservative member of the city council that I knew of and talk with him. He confirmed my suspicions. There were multiple hard leftists in the city government, but no one had actually brought up the issue of my club and the use of the park to rest of the council before sending me the threatening emails.

So, it was probably only a couple of weasels trying to make it look like they represented the entire city council’s position. He also confirmed that the BLM protesters had no permits or insurance, and that certain council members KNEW ahead of time that their protest was going to happen. In other words, the lefty council members were acting unilaterally to give BLM open access to the park, and then tried to interfere with my gun and preparedness club.

This was clear political bias applied to the usage of public property.

I have learned from past experience that these types of people do not like a stand-up fight; so they prefer to try to frighten you away from doing a thing through intimidation instead. They try to get you to give up voluntarily by painting a host of consequences in your mind. You start to worry about all the things that MIGHT happen; no one wants to have confrontations with cops these days, you don’t have to be insane like BLM to have concerns.

Luckily, my brain doesn’t really think in terms of risk over reward. I only really think about what is necessary. I held the club meeting in the park anyway and I made sure that whoever it was in the city council that was trying to interfere knew I was going to do it.

Long story short, the meeting was a success. I met a lot of locals that I had not talked with before that had the same concerns I did, and we discussed primarily the issue of community security if the system completely breaks down. The meetings will continue, perhaps even in the same park for a while just to make a point. The police never showed up, so the people making threats either didn’t want to risk a lawsuit and confrontation, they realized they didn’t have as much power as they thought they did, or the cops refused to bother with something that was clearly legal and constitutional.

The only confrontation happened a hundred yards away. A man looking for the meeting approached a group across the street that was organizing a separate community event. He told me that when he asked them if they were part of the gun club, a woman yelled at him “No, those people are across the street at that ILLEGAL MEETING!”

And there you have it. I highly recommend you hold an “illegal meeting” of your own for your community. These discussions need to start now, and people need to know that they are not alone during this crisis. It is time for conservatives to start banding together and planning ahead.

*  *  *

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“No Difference Between John Bolton, Brian Hook Or Elliott Abrams”: Iran FM

“No Difference Between John Bolton, Brian Hook Or Elliott Abrams”: Iran FM

Tyler Durden

Fri, 08/07/2020 – 22:45

“There’s no difference between John Bolton, Brian Hook or Elliott Abrams,” Iranian Foreign Ministry spokesman Abbas Mousavi said in a tweet with the hashtag #BankruptUSPolicy on Friday.

“When U.S. policy concerns Iran, American officials have been biting off more than they can chew. This applies to Mike Pompeo, Donald Trump and their successors,” Mousavi added.

Indeed in perhaps one of the greatest symbols or representations of the contradictions and absurdity inherent in US foreign policy of the past few decades, and a supreme irony that can’t be emphasized enough: the new US envoy to Iran who will oversee Pompeo’s ‘maximum pressure’ campaign remains the most publicly visible face of the 1980’s Iran-Contra affair.

Elliott Abrams has been named to the position after Brian Hook stepping down. This means the man who will continue to push for the extension of a UN arms embargo against Iran once himself was deeply involved in illegally selling weapons to Iran and covering it up.

Most famously, or we should say infamously, Abrams pleaded guilty to lying to Congress in 1991 following years of the Iran-Contra scandal engulfing the Reagan administration; however, he was also pardoned by outgoing president George H.W. Bush at around the same time.

“Pardoned by George H.W. Bush in 1992, Abrams was a pivotal figure in the foreign-policy scandal that shook the Reagan administration, lying to Congress about his knowledge of the plot to covertly sell weapons to the Khomeini government and use the proceeds to illegally fund the right-wing Contras rebel group in Nicaragua,” NY Mag reviews.

Some are noting this heightens the chances that Washington could get dragged into a war involving Israel and Iran.

Recall too that Abrams has been Trump’s point man for ousting Maduro from Venezuela, and it appears he’ll remain in the post of special envoy for Venezuela as well.

The Grayzone journalist, Anya Parampil, who has frequently reported from Venezuela, alleged this week that Abrams will “try and destroy Venezuela and Iran at the same time”.

via ZeroHedge News https://ift.tt/3a7sAsV Tyler Durden

‘America’s Toughest Sheriff’ Joe Arpaio Defeated in Bid To Get His Old Job Back

Joe Arpaio

Joe Arpaio will not face Democratic candidate Paul Penzone in the race for Maricopa County Sheriff in the Arizona general election this fall. The Associated Press called Tuesday’s Republican primary race, reporting that Arpaio lost to former top aide Jerry Sheridan late Friday night.

The tough-on-crime ex-sheriff was one of four Republican candidates hoping to replace Penzone, who himself replaced Arpaio in 2016, in the general election this November. Whoever wins that election will oversee one of the nation’s largest sheriff’s offices.

Arpaio’s previous tenure as sheriff, which began in 1993, was defined by his frequent abuses of power. He became infamous for forcing inmates to wear pink underwear, work on chain gangs, and live in tent cities in the scorching Arizona heat. Under his watch, a SWAT team carried out a disastrous raid on a Phoenix home that ended with the residence engulfed in flames, a dog dying in the fire, and exactly one suspect taken into custody for outstanding traffic violations.

Using his official powers, Arpaio retaliated against the media for unfavorable coverage—a misdeed that he committed several times. He was also known to rely on racial profiling to enforce immigration law.

Arpaio was voted out of office in 2016. A federal judge found him guilty of criminal contempt of court a year later over his refusals to follow a court order commanding him to improve jail conditions and stop racially profiling.

A vocal supporter of President Donald Trump, Arpaio made history in 2017 by receiving Trump’s first pardon.

In 2018, he ran an unsuccessful bid for the U.S. Senate. Apparently unable to resist the allure of public office, he announced his intention to re-run for sheriff in 2019.

Needless to say, Joe Arpaio is not a reformed man, but at least he won’t get the chance to reclaim his title as “America’s Toughest Sheriff” in 2020.

 

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‘America’s Toughest Sheriff’ Joe Arpaio Defeated in Bid To Get His Old Job Back

Joe Arpaio

Joe Arpaio will not face Democratic candidate Paul Penzone in the race for Maricopa County Sheriff in the Arizona general election this fall. The Associated Press called Tuesday’s Republican primary race, reporting that Arpaio lost to former top aide Jerry Sheridan late Friday night.

The tough-on-crime ex-sheriff was one of four Republican candidates hoping to replace Penzone, who himself replaced Arpaio in 2016, in the general election this November. Whoever wins that election will oversee one of the nation’s largest sheriff’s offices.

Arpaio’s previous tenure as sheriff, which began in 1993, was defined by his frequent abuses of power. He became infamous for forcing inmates to wear pink underwear, work on chain gangs, and live in tent cities in the scorching Arizona heat. Under his watch, a SWAT team carried out a disastrous raid on a Phoenix home that ended with the residence engulfed in flames, a dog dying in the fire, and exactly one suspect taken into custody for outstanding traffic violations.

Using his official powers, Arpaio retaliated against the media for unfavorable coverage—a misdeed that he committed several times. He was also known to rely on racial profiling to enforce immigration law.

Arpaio was voted out of office in 2016. A federal judge found him guilty of criminal contempt of court a year later over his refusals to follow a court order commanding him to improve jail conditions and stop racially profiling.

A vocal supporter of President Donald Trump, Arpaio made history in 2017 by receiving Trump’s first pardon.

In 2018, he ran an unsuccessful bid for the U.S. Senate. Apparently unable to resist the allure of public office, he announced his intention to re-run for sheriff in 2019.

Needless to say, Joe Arpaio is not a reformed man, but at least he won’t get the chance to reclaim his title as “America’s Toughest Sheriff” in 2020.

 

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