Category: reason

Humane: How the United States Abandoned Peace and Reinvented War, by Samuel Moyn, Farrar, Straus and Giroux, 400 pages, $30

There is a technology that could radically shrink, perhaps even end, incarceration as we know it. But it might make the whole world a prison in the process.

The tech in question is GPS, which allows the authorities to monitor people in real time. Strapped into an ankle bracelet and surveilled by satellite, a criminal can live under house arrest, traveling only to his workplace and other approved locations, paying a share of each paycheck to his victims. As such sentences become more common, there could come a time when only those convicts who pose an actual physical risk to others would be confined in a more traditional way—and even that might be accomplished in a manner more decentralized than those big, brutal penal institutions.

That would be both more efficient and more humane than the old system, and it would deliver victims actual restitution instead of some platitude about “closure.” Sounds good, right?

But the same system that could give greater liberty to people previously confined to cells could also mean less liberty for people who today are unincarcerated. Think of all the victimless crimes that are already on the books, and then imagine how the list might expand if critics couldn’t confront new legislation with the argument Are you sure you really want to put people in jail for that? Ever-larger groups of offenders could be put under ever-more-intrusive sorts of surveillance and restriction, walking the streets but not walking them freely.

You can spin scenarios where we get some version of the first option but not the second; you can spin scenarios where we get the second but not the first. But there’s also an uncomfortable possibility that the first will enable the second, with the state’s hand clasping us more tightly in some ways even as it loosens its grip in others. As Samuel Moyn writes in Humane, “there is no single arc to the moral universe that guarantees that progress comes without regress on other fronts. The one can even facilitate the other.”

* * * * *

Moyn’s book is about wars, not prisons. But the dilemma he describes is strikingly similar. Humane tells the tale of two struggles, the fight to end war and the fight to humanize it, and how one gradually came to supplant the other.

When Moyn writes about humanizing war, he doesn’t mean “humanitarian interventions” launched with promises to end a genocide or spread democracy—though the same people often embrace both ideas. He means making warfare itself more humane, by shielding the lives of noncombatants, outlawing the torture of POWs, and otherwise eliminating atrocities. Moyn, who teaches both law and history at Yale, offers a well-informed guide to how the laws of warfare were born and how they very gradually grew some teeth. Little bitty baby teeth, but teeth nonetheless.

But his account begins elsewhere, with an assortment of 19th century anarcho-pacifists—Leo Tolstoy, Adin Ballou, William Lloyd Garrison—who saw war itself as an atrocity. Garrison eventually made his peace with warfare, supporting the Civil War in order to bring slavery to an end. But Tolstoy drew the opposite conclusion from the abolition of chattel slavery: To him it showed that an ancient, seemingly permanent injustice was not inevitable after all, and that war perhaps could be eliminated one day as well. Moyn notes here that many reformers had fought not to stop slavery but to make it more bearable, “a project that coexisted comfortably with the strengthening of plantation discipline.” Tolstoy would not settle for that sort of reform.

That era’s push to humanize the battlefield was led by people with little interest in ending warfare altogether, and their earliest efforts to write their ideas into law had little impact on how combat was conducted. The peace movement had more momentum, helping inspire a series of arbitration agreements and disarmament treaties and, in 1928, the nobly intended if utterly ineffective Kellogg-Briand Pact, in which a host of nations formally agreed to outlaw war.

Those arbitration agreements were particularly popular. “The idea,” Moyn explains, “was to encourage or force states into a system in which nonpartisan outsiders would adjudicate all or at least some of their differences.” Unlike Kellogg-Briand, this actually got results: The 19th century saw “more than 150 actual instances of arbitrated compromise between states, in circumstances that might otherwise have led to armed strife.” It was a more flexible, decentralized version of what later organizations like the League of Nations and the United Nations were supposed to accomplish. In fact, Moyn notes, “it was widely believed that a system of arbitration between states would avoid the trouble of setting up a more formal international organization of nations.”

Many pacifists put their faith in the League of Nations as well, and in the broader concept of forming a world federation. But that idea wasn’t universally shared. Moyn points out that William Borah, the progressive Republican senator from Idaho, backed the Kellogg-Briand Pact while opposing the League. Borah’s was arguably the more consistent anti-war position: Scratch those world-federalist dreams, and you’ll often come across calls for a policing arm that keeps the peace by force. The United Nations certainly hasn’t been a very pacific organization—and while many world federalists would attribute that to its dominance by a well-armed superpower, a more egalitarian U.N. would still have those blue-hatted troops at its command.

There was less room for the old peace movement in the wake of World War II, but the dream of a world without war stayed alive. And while there’s an obvious overlap between the desire to end warfare and the desire to sand away its ugliest effects, there are places where those paths diverge. As the U.S. escalated the Vietnam War—not exactly a conflict free of civilian carnage—it nonetheless announced that it would follow “the humanitarian principles enunciated in the Geneva conventions.” Meanwhile, anti-war activists focused on the idea that the war itself was illegal.

The latter, with their sometimes rather creative interpretations of international law, sounded more like attorneys pursuing a longshot case than Tolstoyan radicals. (The law treated a war between countries differently than a civil war, for example—and so, Moyn reports, the anti-war Lawyers Committee Concerning American Policy in Vietnam “spent most of its time arguing that South Vietnam was not truly a state.”) But even after the My Lai massacre of 1968 put war crimes near the center of the Vietnam debate, the protesters’ ultimate aim was to end the intervention, not to humanize it.

Moyn contrasts the reaction to the My Lai massacre with the reaction to the Abu Ghraib scandal of 2004, which arguably did more to mobilize opposition to war crimes than opposition to war. That’s certainly the impact it had in Washington. Barack Obama was widely seen as an anti-war insurgent when he ran for president, but while “the most egregious infractions of the prior administration were disowned,” Moyn writes, “Obama’s lawyers claimed authority to continue war indefinitely across space and time, devising formal legal frameworks for targeted killings.” War would be less grisly but also omnipresent.

The resulting synthesis is still essentially intact today. Even former President Donald Trump, a man who skylarked publicly about targeting terrorists’ families, didn’t dislodge it: “He mainly aimed to take the policies of his predecessors further than they had,” weakening Obama’s rules but keeping the basic framework in place.

* * * * *

Needless to say, modern warfare is nowhere near as humane in practice as it is in the rhetoric of the warmakers. Drone strikes regularly hit the wrong targets, and even a narrowly focused killing can have vast and awful secondary consequences. (If NATO’s Libyan airstrikes had killed no civilians, they still would have worsened a gruesome conflict.) But as a thought experiment, Moyn invites us to imagine a day when expertly programmed autonomous drones never hit the wrong man. Even then, he argues, we would have attained “not eternal peace but endless control.”

And would those drones limit themselves to blocking terrorist attacks? Or would the control apparatus turn its automated system of surveillance and violence on smugglers, or migrants, or perhaps the leaders of a nonviolent rebellion in an allied state? Just as a carceral GPS system can be applied to an ever-growing list of offenders, so might this new eternal war. Indeed, the two systems could converge.

Wars today are both fewer and less lethal than in the last century, and that is surely a good thing. It is always better for civilians to be spared bombardment and for jailers to renounce torture. We should celebrate the shifts that make anything more humane.

But we can’t let such reforms mark the boundaries of our goals. “A future of bloodless global discipline is a chilling thing,” Moyn writes, even if bloody global discipline is chillier still. To avoid that fate, we need a “project of challenging hierarchy in all its forms.” Otherwise, the same changes that made those hierarchies less brutal might transform the planet into a battlefield without frontiers and a prison without walls.

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From Judge Marilyn Horan’s opinion Monday in Doe 1 v. N. Allegheny School Dist. (which takes the opposite view from today’s decision I note below):

The timing of this TRO motion has left this Court with limited options. School was set to resume tomorrow [Jan. 18] with a masking optional policy. The Court’s ability to conduct a full TRO analysis has been limited to the briefing and argument of the parties. This case and claims are better addressed following a period where the parties have conducted discovery and/or potentially undertaken the proper administrative routes. The prudent and practical approach, given the potential negative impacts on the putative Plaintiffs’ health and education, is that a reasonable period of maintaining the status quo is necessary.

At this stage, the School District has offered the accommodation of cyber school to students who are immunocompromised. The School Board’s proffer of the cyber school accommodation fails to account for the impact to the immunocompromised students’ educational needs and potential family needs to assist their homebound children. In addition to providing mask guidance and information on community spread, the CDC has also advised that “[s]tudents benefit from in-person learning, and safely returning to in-person instruction continues to be a priority.”

In weighing this accommodation, the Court finds, for purposes of this TRO only, that effecting a cyber school only option upon immunocompromised students when faced with optional masks versus burdening the District with students conducting universal masking is not a reasonable accommodation and such violates the spirit of the ADA as enacted by Congress. The School Board’s proffer of the cyber school accommodation fails to account for the impact to the immunocompromised students’ educational needs and potential family needs to assist their homebound children. The Court cannot say, at this stage, that such accommodation meets the protections provided for under the ADA and Section 504….

Both the ADA and Section 504 of the Rehabilitation Act require Plaintiffs to establish that: “(1) they are qualified individuals with a disability within the meaning of Section 504 of the Rehabilitation Act or ADA; (2) they will be excluded from participation in or denied benefits of such services, programs, or activities of the public entity; and (3) their exclusion, denial of benefits, or discrimination occurred by reason of their disability.” The ADA prohibits discrimination that includes “a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities.”

When a state entity, like a school board, fails to make reasonable modifications to its facilities and practices, a party may sue the school board by bringing a claim known as a failure to accommodate claim. A failure-to-accommodate claim differs from other ADA claims in that the plaintiff is not required to show that his injury was the result of purposeful discrimination….

For the purposes of their ADA and Section 504 claims, Plaintiffs and Defendants both agree that Plaintiffs are qualified individuals with disabilities. At the September 22, 2021 Board meeting, the Board reimplemented a mask mandate, based upon express criteria, one of which was a benchmark provision for universal masking based upon when the community transmission rate was at a rate of “substantial” or “high.” As of September 22, 2021, the Delta variant was circulating amongst the community with a community transmission rate of 513 cases per day and a 6.0% positivity rate. As a consequence, for the majority of the 2020-2021 and 2021-2022 school years to date, masks have been mandated within the District. Although wearing masks in the District has been inconvenient and controversial, this mask mandate status has been attained and maintained within the District without unreasonable expenditure or difficulty.

On December 8, 2021, despite the fact that the community transmission rate was measured at a positivity rate of 10.2% of a total of 3,277 infections for the week beginning December 5, 2021 and still within the “high” category, the Board voted to make masks optional within the District beginning January 18, 2022, conditioned upon whether the Pennsylvania Department of Health’s mask mandate was lifted and the Pennsylvania Supreme Court’s stay order was no longer in effect. As of December 10, 2021, the Pennsylvania Supreme Court vacated the Department of Health’s mask mandate. Thus, the mask optional policy would become effective in the District on January 18, 2022.

The December 8, 2021 Board action also removed the provision that masks were to be required to be worn within the District whenever the community transmission rate was within the “substantial” or “high” categories. The Board provided no explanation for why it decided to lift the mask mandate when the transmission rate was in a category of “high” or for why it removed the community transmission rate categories of “substantial” and “high” as benchmarks for when to require masking within the District.

Presently, since September 22, 2021, the Omicron variant has emerged. The Omicron variant is even more highly transmissible than the Delta variant. As such, the community transmission rate is currently at 3,500 infections per day and a 37.1% positive rate, which is six times higher than the positivity rate on September 22, 2021, when the Board reinstated the mask mandate and established criteria for when masks should be worn in the District based upon rates of community spread. The transmission classification remains at its highest category of “high.”

At this early stage in the litigation and with the little record yet developed, it is curious that, while the Board determined in September 2021 that mandating masks, based upon the transmission rate categories of “substantial” and “high,” was manageable, appropriate, and reasonable, but that in December 2021, when the transmission rates were increased and the category was still at a status of “high,” that the Board voted to eliminate the benchmark and make masks optional. Beyond December and in light of the proliferation of the Omicron variant, which has resulted in significantly increased numbers of infections within the population, with particular increases in infection rates for children, it is concerning that the District has not acted to reinstate the masking mandate and transmission rate categories to avoid the optional masking policy’s January 18, 2022 effective date.

Turning to the Plaintiffs in this case, Child Doe 1 is alleged to have medical conditions that can be classified as immunocompromised, which presents legitimate concerns and risks to health and life from COVID-19 exposure and infection. The Plaintiff has alleged that significant expert opinions exist within the medical and infectious disease fields to support that a layered approach, which includes vaccination, masking, quarantining, contract tracing, social distancing, and increased building ventilation are all required to effectively reduce the spread of COVID-19. It is the combination of these measures that make them effective and, without any one of them, individuals with disabilities, like Plaintiffs and those similarly situated, are at increased risk of contracting the virus and severe illness or death.

Plaintiffs allege that the increased risk of infection due to optional masking within the District creates a barrier to attending in-person classes with their non-immunocompromised peers. The Plaintiffs also allege that the District has failed to make reasonable accommodations for them to access educational services and has placed them at increased risk of physical harm. The Board has provided no explanation for whether it took into consideration any needed accommodations for disabled students in the District when it made the decision to lift the school mask mandate.

Plaintiffs, John and Jane Doe 1, make claims on behalf of Child Doe 1, as an immunocompromised student, plus claims for a class of similarly situated students. The record has not yet been developed to ascertain whether the asserted class will be qualified or have standing. However, at this stage the court will consider that Child Doe 1 is immunocompromised and that John and Jane Doe 1 on behalf of Child Doe 1 have sufficiently established a likelihood of success on their claim that the District’s optional masking policy has the effect of excluding Child Doe 1 from in-person attendance at public school or has otherwise denied Child Doe 1 the opportunity to participate in the in-person services of the District and that any such exclusion is based upon Child Doe 1’s disabilities.

In December, the District removed the benchmark that it had established and implemented for mask mandates when the community transmission category was “substantial” or “high.” Said benchmark and its implementation provided an effective and manageable accommodation to enable immunocompromised students to attend in-person classes with their non-disabled peers. In such circumstance, Plaintiffs have demonstrated a likelihood of success on the merits of their ADA and Section 504 claims based upon the failure of the District to provide a reasonable accommodation for immunocompromised students within the District….

The Court finds that Child Doe 1 is likely to suffer irreparable harm if such access to the District is denied on account of the District’s optional mask policy. The ADA and Section 504 of the Rehabilitation Act mandate that disabled plaintiffs must have equal access to opportunities using the least restrictive means possible. Denying immunocompromised Plaintiffs the opportunity to access educational opportunities in the District will cause the immunocompromised Plaintiffs to suffer irreparable harm.

Additionally, Plaintiffs’ Complaint and Brief in Support of the Temporary Restraining Order suggest that masking is part of the layered approach used to help slow the rate of transmission of COVID-19. The rate of transmission in the community has increased in recent weeks due to the spread of the Omicron variant. The optional masking policy increases risks to the health and wellbeing of the Plaintiffs and all students in the District. Further, immunocompromised students at higher risk are less able to safely attend classes in-person with an optional masking environment. In such circumstances, Plaintiffs have demonstrated a likelihood of establishing that they will suffer irreparable harm….

Students have been wearing masks in the District for the majority of the 2020, 2021, and 2022 school years to date. The mask mandate status has been attained and maintained within the District without unreasonable expenditure or difficulty. The Defendants cite no evidence in their Brief of how masks place an undue burden upon the District. As such, the District not will experience significant hardship if the District again requires the wearing of masks in school….

Additionally, and as Plaintiffs suggest in their Brief, wearing masks slows the transmission of COVID-19. As such, requiring masks in the District weighs in favor of the public interest because it will help to slow the spread of COVID-19 ….

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Heller was decided in 2008. Two years later, McDonald incorporated the Second Amendment. In the past thirteen years, the Second Amendment has had barely any impact on federal law. Invariably, lower courts have upheld all manner of gun control regulations, and the Supreme Court has denied reviewed. Leading the charge has been the Ninth Circuit. The government is undefeated in Second Amendment cases, amassing a record of 50-0. And whenever a three-judge panel actually finds a gun law unconstitutional, without fail, the case is reversed en banc. These numbers come, of course, from Judge VanDyke’s dissent in Duncan v. Bonta. You see, Judge VanDyke and his colleagues on the Ninth Circuit are frustrated. In case, after case, after case, they are on the losing end of decisions. I imagine Judges Higginson and Costa from the Fifth Circuit can relate. They should start a support group–Dissenters Anonymous.

Now, VanDyke has tried something different. He actually managed to write a unanimous panel opinion declaring unconstitutional restrictions on firearms. Ventura County prohibited the sale of firearms for 48-days during the start of the pandemic, even as other commercial ventures remained open. This victory will be short-lived. We all know what is going to happen next. The Ninth Circuit, with a few more Biden nominees aboard, will en banc this case faster than you can say Reinhardt! Maybe in a year or so, when we are up to the Omega variant, the Ninth Circuit will drop a 200-page opinion that upholds the gun regulations under intermediate scrutiny. Then, one year later, the Supreme Court will deny certiorari over harsh dissents from the Court’s conservatives.

Frankly, this entire process is a waste of time. So, Judge VanDyke tried something new– write an “alternative” draft en banc opinion–or a fauxpinion, if you will–that reverses his panel opinion.

Since our court’s Second Amendment intermediate scrutiny standard can reach any result one desires, I figure there is no reason why I shouldn’t write an alternative draft opinion that will apply our test in a way more to the liking of the majority of our court. That way I can demonstrate just how easy it is to reach any desired conclusion under our current framework, and the majority of our court can get a jump-start on calling this case en banc. Sort of a win-win for everyone. 

But wait, there’s more. VanDyke adds an element of Mystery Science Theater 3000 to his concurrence.

To better explain the reasoning and assumptions behind this type of analysis, my “alternative” draft below will contain footnotes that offer further elaboration (think of them as “thought-bubbles”). The path is well-worn, and in a few easy steps any firearms regulation, no matter how draconic, can earn this circuit’s stamp of approval.

VanDyke’s fauxpinion is a masterpiece. If you just read above the line, it could have come from any of the Ninth Circuit’s luminaries. Truly, it is pitch perfect. If you read below the line, VanDyke points out how vapid the majority’s jurisprudence is. A few of my favorites:

FN2: We refer to strict scrutiny as a theoretical matter—a thought-experiment, really. Our court has never ultimately applied strict scrutiny to any real-life gun regulation.

FN4: And second, once we’ve concluded that a challenged regulation does not place a “substantial burden on Second Amendment rights,” it’s really game over. A regulation that we’ve already determined does not substantially burden the Second Amendment can be upheld easy-peasy under our watered-down intermediate scrutiny test.

FN8: Whew. Hard work done. It’s all downhill from here!

FN11: But trust us, this is heightened scrutiny. So very heightened.

FN12: Again, it doesn’t matter much what we say here. Once we’re allowed to effectively balance competing interests under our Second Amendment intermediate scrutiny, it’s so easy justifying a regulation that we could easily just delegate this part of the opinion to our interns.

What happens next? Well we will probably get an en banc call and reversal. Though, the court may decide this case is not worth fighting over, given how egregious Ventura County’s restrictions were. Hey, the Supreme Court may even summarily reverse this opinion under Tandon v. Newsom. There may be some value to at least let the Second Amendment win once, to prove that the deck is not stacked against the right to keep and bear arms. Also, the easiest way to shut up that guy in Reno is to deny en banc! Think about it!

Or, the Ninth Circuit can take a cue from the Supreme Court, and declare VanDyke’s majority opinion dicta, and find that the actual holding appears in VanDyke’s concurrence–minus the snarky footnotes.

VanDyke’s concurrence concludes, “You’re welcome.”

You’re welcome.

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So holds today’s opinion by Judge William S. Stickman IV (W.D. Pa.) in Doe 1 v. Upper Saint Clair School Dist.:

Plaintiffs … allege that their children are “medically fragile disabled students” and that permitting families and students to choose whether to mask will subject them to increased risk of catching COVID-19 and increased risk of harm from the virus. They allege that, in light of their children’s medical conditions, the School Board’s decision to make masking optional violates both Title II of the Americans with Disabilities Act … and Section 504 of the Rehabilitation Act of 1973 ….

To be clear, Plaintiffs do not allege that the policy adopted by the School Board hinders their own child’s ability to wear a mask. Rather, they allege that, by permitting other students and families to choose whether to wear masks, the policy violates the cited statutes. Plaintiffs … [ask, in effect,] that, notwithstanding the vote of the School Board, universal masking would be ordered to remain in place for an indefinite period, provided that transmission of COVID-19 remains “substantial” or “high” in Allegheny County…. Their request for injunctive relief is premised on the position that universal masking is the only reasonable accommodation to which they are entitled under the ADA and the Rehabilitation Act….

There is no question that the School District has enacted a number of safety measures designed to curb the spread of COVID-19 [including physical distancing, cleaning and ventilation, contact tracing, diagnostic and screening testing, and efforts to provide vaccinations to school communities]…. Critically, the Plan also provides for the following “[a]ppropriate accommodations for students with disabilities with respect to health and safety policies”: “The School District will review additional mitigation options for staff members and students who are at higher risk for severe illness, including necessary accommodations under the ADA, Section 504, or the IDEA.” During argument, these provisions were referenced by counsel for Defendants, who explained that accommodations granted to students “who are at higher risk for severe illness” include a variety of measures, including distancing, special seating in classrooms and, if necessary, at-home instruction or virtual classes.

Despite those safety measures and possible accommodations, Plaintiffs take the position that the only reasonable accommodation appropriate in light of child Plaintiffs’ conditions is a requirement of universal masking in the School District … so long as transmission of COVID-19 in Allegheny County is at a “substantial” or “high” level.

Moreover, Plaintiffs’ request is without limitation on duration. While Plaintiffs’ counsel expressed hope that COVID-19 infection numbers fall beneath the “substantial” threshold this year, and suggested that the requested relief is limited to this year, there is no guarantee that will occur. Moreover, the specific relief requested by the TRO and proposed order would require masking indefinitely, so long as the number of cases is “substantial” or higher. (Tr. at 14-15) (“Since the science and the medicine tells us that a virus doesn’t go away by a deadline, we have to use a different metric. And the metric we’re doing is the one that medical professionals rely upon, and its that if the COVID transmission rate, per the CDC for Allegheny County only, is in the substantial or high basis, then masking should stay in place.”)….

With a population of 1.216 million, 607 cases per 7 days would be enough to bring Allegheny County into the “substantial” category. The CDC’s definitions were calibrated to the earlier Delta variant of COVID-19, rather than the significantly more transmissible Omicron variant, which currently accounts for nearly all new infections. With COVID-19 becoming endemic and with a much more transmissible variant, one wonders whether the numbers will ever be low enough to fall below the “substantial” category and/or whether each winter, as respiratory infections seasonally increase, the number will again increase to a level requiring masking under Plaintiffs’ position.

Plaintiffs seem to acknowledge that this could be an issue, and their counsel conceded that the CDC “may revise those guidelines. And if they revise them based upon the level of Omicron, they may up the number of transmissions so that the barometer they’re using makes it more flexible.”

While not alone dispositive, the unreasonableness of Plaintiffs’ position is highlighted by its unprecedented nature. Although immunocompromised children have always been present in our schools, and communicable diseases have always circulated, prior to COVID-19 there was never an argument for mandatory, indefinite, universal masking in schools-much less the argument that the failure of a school district to mandate universal masking constitutes a violation of federal law. Aside from cases addressing COVID-19, the Court was unable to locate a single case where a court held that a reasonable accommodation for an immunocompromised or otherwise vulnerable person was to require all other students and staff of a school, or constituents of an institution or community, to wear a mask or any other type of personal protective equipment.

The unreasonable nature of Plaintiffs’ position is further highlighted by the fact that, while it imposes an unprecedented requirement upon the School District—i.e., mandate universal masking of all students, faculty, and staff or violate the ADA and the Rehabilitation Act—it is not guaranteed to be effective. In other words, Plaintiffs may still become infected with COVID-19. It is common knowledge that wearing a mask is no guarantee against infection. Counsel for Defendants stated that, even with universal masking, the School District still had a number of cases since the onset of Omicron. Moreover, Plaintiffs’ request does not specify a particular type of mask—notwithstanding the fact that public health authorities have called into question the effectiveness of, for example, cloth masks against the Omicron variant.

 For these reasons, the Court holds that Plaintiffs’ request for the indefinite imposition of universal masking will not be found to be a reasonable accommodation when the claims are finally decided on the merits. {See, e.g., L.E. v. Ragsdale (N.D. Ga. Oct. 15, 2021) (“While Plaintiffs may prefer a mask mandate and other stricter policies, Defendants are not required to provide Plaintiffs with their preferred accommodation. So long as Plaintiffs are offered meaningful access to education—and the Court finds that they have been—Defendants have adequately accommodated Plaintiffs and their disabilities.”).} …

The Court [also] holds that granting this TRO would risk imposing substantial harm upon the School District and that doing so would run contrary to the public interest. Specifically, the Court believes that granting the relief sought would risk upsetting the system of popular governance of schools that is an important part of our system of layered and answerable government.

The sole accommodation demanded by Plaintiffs would supersede the democratic vote of the School Board on an issue that elicits strong feelings not only from Plaintiffs, but also from other members of the public. Further, the legal theory proffered by Plaintiffs unduly amplifies the authority of CDC recommendations while, at the same time, severely curtailing the practical authority of the people, through their elected school directors, to make decisions on matters of prudential judgment.

Plaintiffs’ position if accepted, would essentially graft the recommendations of the CDC into the ADA and the Rehabilitation Act. And as a practical matter, elevating CDC recommendations to the level of law would serve to take many decisions relating to health policy and directly impacting citizens out of the hands of their elected representatives and put them into the hands of unknown and unanswerable CDC decisionmakers and unelected and unanswerable federal judges.

There is no question that COVID-19 has challenged every American institution. This Country will continue to face challenges that have scientific or technical considerations which are informed by experts within or outside of government. Governments at all levels would do well to weigh and consider the advice offered by those experts. However, in a democratic republic, the ultimate answer to the question of “who decides” must be the people through their elected and answerable representatives.

In this case, the Court believes that the entry of a TRO would damage the independence and authority of the School Board—the directly elected body entrusted by State law with setting policy for the School District. It would lead, in practical effect, to the elevation of CDC recommendations beyond their appropriate level of authority and to the exclusion of local, democratic authority over matters of prudential judgment. The Court holds that these considerations weigh in favor of a finding that entry of a TRO would be contrary to the public interest….

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The professors who were blocked by the University of Florida from offering expert testimony in a voting rights lawsuit against the state have won a significant legal victory for their academic freedom claims. The university had claimed that such expert testimony was a violation of the university’s conflict of interest policy. That claim caused an outcry among academic freedom advocates, including the Academic Freedom Alliance. The university eventually revised its policy and allowed the professors to work with the parties in the voting rights litigation. Nonetheless, the professors sought an injunction from a federal judge preventing the university from returning to a similar policy in the future. The suit previously survived a motion to dismiss, and today the judge issued a sharply worded opinion granting the preliminary injunction.

It’s worth pausing to note just how shocking Defendants’ position is. Defendants all but recognize that Plaintiffs are speaking in their private capacity on matters of public concern. Yet Defendants claim the right to restrict that speech if they determine—in their unlimited discretion—that the viewpoint expressed in Plaintiffs’ speech would harm an ill-defined “interest” of the University. And what are UF’s interests? Why must Defendants regulate Plaintiffs’ speech? How does Plaintiffs’ speech prevent the efficient delivery of government services, impair discipline, workplace harmony, or employer confidence? Despite being given not one, not two, but four chances to articulate either in writing or at oral argument how Plaintiffs’ speech disrupts UF’s mission, Defendants cannot or will not say.

The full opinion can be found here.

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I quote the DoJ press release; you can also read the Indictment here (starting at p. 5); the last name Lnu, of course, is a old Slavic root, doubtless cognate with “лён,” meaning linen or flax.

Belarusian Government Officials Charged with Aircraft Piracy for Diverting Ryanair Flight 4978 to Arrest Dissident Journalist in May 2021

Senior Belarusian Officials Conspired to Use False Bomb Threat to Unlawfully Divert Passenger Flight Carrying American Citizens in Order to Arrest Belarusian Dissident

A federal grand jury in New York returned an indictment today charging four Belarusian state officials with conspiracy to commit aircraft piracy.

According to court documents, Leonid Mikalaevich Churo, Oleg Kazyuchits, Andrey Anatolievich Lnu and Fnu Lnu, all of Belarus, allegedly engineered the diversion of Ryanair Flight 4978 (the Flight) – which was carrying four U.S. nationals and more than 100 other passengers on board – while it was in flight on May 23, 2021, to arrest a dissident Belarusian journalist who was on board.

“Since the dawn of powered flight, countries around the world have cooperated to keep passenger airplanes safe,” said U.S. Attorney Damian Williams for the Southern District of New York. “The defendants shattered those standards by diverting an airplane to further the improper purpose of repressing dissent and free speech. Thanks to the extraordinary investigative work of a joint team of FBI counterterrorism and counterintelligence investigators, today’s indictment provides a prompt and public explanation of what actually happened to the Flight. We are committed to holding accountable these central participants in a shocking conspiracy to commit aircraft piracy that not only violated international norms and U.S. criminal law, but also potentially endangered the lives of four U.S. citizens and scores of other innocent passengers on board.”

“We allege the defendants carried out an elaborate scheme to fake a bomb scare which forced an airplane to make an emergency landing in their country so they could arrest a dissident journalist,” said Assistant Director Michael J. Driscoll of the FBI’s New York Field Office. “During the course of our investigation, the FBI identified a detailed operation that subjected passengers from many countries, including the U.S., to the realities of terroristic threats. Not only is what took place a reckless violation of U.S. law, it’s extremely dangerous to the safety of everyone who flies in an airplane. The next pilot who gets a distress call from a tower may doubt the authenticity of the emergency – which puts lives at risk. The FBI and our foreign partners will continue to hold perpetrators responsible for actions which directly threaten the lives of our US citizens and jeopardize the stability of our national security.”

Overview of the Plot

While on its regularly scheduled passenger route between Athens, Greece, and Vilnius, Lithuania, on May 23, 2021, the Flight was diverted to Minsk, Belarus, by air traffic control authorities in response to a purported threat of a bomb on board the aircraft. There was, in fact, no bomb on board the aircraft. Belarusian government authorities fabricated the threat as a means to exercise control over the Flight and force it to divert from its course toward the original destination of Vilnius, and instead land in Minsk.

The purpose of the Belarusian government’s plot diverting the Flight to Minsk was so that Belarusian security services could arrest a Belarusian journalist and political activist (Individual-1) – who was critical of the Belarusian government, living in exile in Lithuania, and wanted by the Belarusian government on allegations of fomenting “mass unrest” – as well as Individual-1’s girlfriend (Individual-2). The Belarusian government conspiracy to divert the Flight was executed by, among others, officers of the Belarusian state security services working in coordination with senior officials of the Belarusian state air navigation authority.

The Defendants

The defendants, all Belarusian government officials and critical participants in this conspiracy, are identified as: Leonid Mikalaevich Churo, Oleg Kazyuchits, Andrey Anatolievich Lnu and Fnu Lnu. At all times relevant to the indictment, Churo was the Director General of Belaeronavigatsia, the Belarusian state air navigation authority. As alleged, Churo personally communicated the false bomb threat to staff at the Minsk air traffic control center before the Flight even took off from Athens, and directed the control center to instruct the Flight divert to Minsk in response to the purported threat.

Kazyuchits was the Deputy Director General of Belaeronavigatsia, and his role in the conspiracy included directing Belarusian air traffic authorities to falsify incident reports regarding the diversion of the Flight in order to conceal the fabrication of the bomb threat and to omit the role of Belarusian security services in directing the diversion.

Andrey Anatolievich Lnu and Fnu Lnu were officers of the Belarusian state security services. Fnu Lnu participated with Churo in conveying the false bomb threat to the Minsk air traffic control tower, personally directed the specific radio communications from the Minsk tower to coerce the Flight to divert to Minsk, and relayed contemporaneous updates on the diversion of the Flight and the progress of the plot to Andrey Anatolievich Lnu, who was Fnu Lnu’s superior in the Belarusian state security services.

The Diversion of the Flight

On May 23, 2021, at approximately 6:45 UTC, Churo and Fnu Lnu arrived at the operations room of the Minsk area air traffic control center with responsibility for Belarusian airspace. Churo and Fnu Lnu conveyed the purported bomb threat to the controllers on duty, even though the Flight had not yet departed Athens. Churo and Fnu Lnu specifically crafted the threat to coerce the pilots of the Flight to avoid continuing to their final destination of Vilnius, by claiming that the purported bomb would explode if the Flight landed there.

In addition, Churo and Fnu Lnu took the telling steps of directing that the Flight be diverted specifically to Minsk, and even though the Flight was still in the adjacent airspace of Ukraine, prohibiting the Minsk air traffic control center from making any notification to Ukrainian authorities of the purported bomb threat. This helped to ensure that the Flight would enter Belarusian airspace, and the plot to obtain and exercise control over the Flight could be executed. Fnu Lnu remained in the operations room at the Minsk air traffic control center from the time that he and Churo conveyed the purported bomb threat and directed that the Flight divert to Minsk, until shortly before the Flight landed in Minsk after being diverted, in order to ensure that the diversion plot was successfully executed.

Once the Flight reached Belarusian airspace, Fnu Lnu instructed the senior air traffic controller who was responsible for communicating with the Flight to inform the pilots of the purported bomb threat, describe that the threat had been sent by email, and make specific statements to ensure the threat seemed credible and to coerce the Flight to divert to Minsk. For example, Fnu Lnu directed that the air traffic controller should falsely inform the pilots that the threat to the aircraft was a level “red” – the most specific and credible category of threat. Fnu Lnu provided updates on the execution of the plot in real time to his superior in the Belarusian security services, Andry Antolievich Lnu, at one point expressing concern that the pilots might be stalling for time and the Flight might soon leave Belarusian airspace, which would jeopardize the success of their diversion scheme. In response to the false information conveyed as part of the defendants’ plot, the pilots of the Flight ultimately declared an emergency and diverted to Minsk National Airport, in accordance with the directives from Churo and Fnu Lnu.

Once the Flight landed in Minsk, Fnu Lnu left the air traffic control operations room and went to the airport tarmac. The Flight was met by Belarusian security services personnel, including individuals dressed in camouflage military-style uniforms, some of whom were wearing ski masks and carrying visible firearms. Fnu Lnu remained on the tarmac supervising the security forces and monitoring the screening of the passengers as they disembarked. Belarusian security services personnel then instructed the passengers to board one of several airport passenger buses.

Belarusian authorities boarded one of the buses and asked Individual-1 to come forward and identify himself, demonstrating that Belarusian authorities were aware that Individual-1 was on board the Flight. Individual-1 was escorted off the bus, where uniformed Belarusian officers separately searched him again on the airport tarmac. Belarusian officers then escorted Individual-1 back onto the bus and traveled with Individual-1 and the rest of the passengers to the airport terminal. Once the bus arrived at the terminal, the Flight’s passengers were detained in an area of the terminal secured by Belarusian security services. Additional Belarusian security officers met Individual-1 and the officers accompanying him, escorted Individual-1 away from the remaining passengers and detained Individual-1. One group of passengers from the Flight, including multiple U.S. nationals and Individual-2, was detained in a narrow hallway for approximately three hours at the airport. During that time, Belarusian authorities also escorted Individual-2 away from the other passengers and detained Individual-2. The Flight was ultimately allowed to depart from Minsk and continue to its original destination of Vilnius later that evening. No bomb was ever on the Flight.

The Cover-Up

Soon after the diversion of the Flight, Belarusian government officials began to cover up what had happened. On or about May 24, 2021, the day after the Flight was diverted, Churo appeared at a press conference in Belarus with other Belarusian officials to address the Flight’s diversion. During the press conference, Churo stated falsely the Belarusian authorities had “done everything according to their technology and their job responsibilities” in handling the Flight. In reality, Churo knew that he and his co-conspirators had contrived the false bomb threat and had directed the Flight to divert to Minsk so that Belarusian security services could arrest Individual-1 and Individual-2. To further conceal the defendants’ plot, Kazyuchits directed Belarusian air traffic authorities to create false incident reports, including by doctoring the reports to misrepresent that the bomb threat was received at approximately the same time that the Flight entered Belarusian airspace and omit the fact that Fnu Lnu of the Belarusian security services was present in the operations room and directed activity during the Flight’s diversion.

Churo, Kazyuchits, Andrey Anatolievich Lnu and Fnu Lnu, all of Belarus, are charged with conspiring to commit aircraft piracy, which carries a minimum sentence of 20 years and maximum statutory penalty of life. A federal district court judge will determine any sentence after considering the U.S. Sentencing Guidelines and other statutory factors.

The defendants remain at large. The United States looks forward to working with our foreign partners to bring them to justice.

This case was jointly investigated by the FBI’s New York Field Office, Counterintelligence Division Foreign Influence Task Force and the New York Joint Terrorism Task Force, which principally consists of special agents from the FBI and detectives from the NYPD; as well as the FBI Legal Attaché Offices in Riga, Latvia; Warsaw, Poland; Athens, Greece; Kiev, Ukraine; and London; the National Transportation Safety Board; the Justice Department’s National Security Division Counterterrorism Section and Criminal Division’s Human Rights and Special Prosecutions Section, and the Office of International Affairs. Poland’s Internal Security Agency and the Mazowieckie Regional Prosecutor’s Office; and Lithuanian authorities provided valuable assistance with this investigation.

Assistant U.S. Attorneys David W. Denton Jr. and Elinor L. Tarlow for the Southern District of New York are prosecuting the case, with assistance from Trial Attorneys Jennifer Burke of the National Security Division’s Counterterrorism Section, and Jamie Perry and Christian Levesque of the Criminal Division’s Human Rights and Special Prosecutions Section.

An indictment is merely an allegation, and all defendants are presumed innocent until proven guilty beyond a reasonable doubt in a court of law.

The post "Belarusian Government Officials Charged With Aircraft Piracy for Diverting … Flight … to Arrest Dissident Journalist" appeared first on Reason.com.

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