Driven By Delusions: The West’s Nagorno-Karabakh Hypocrisy

Driven By Delusions: The West’s Nagorno-Karabakh Hypocrisy

Tyler Durden

Fri, 10/09/2020 – 02:00

Authored by Danny Sjursen via AntiWar.com,

Something stands out in recent U.S. and most Western reporting on the ongoing bloodletting in Nagorno-Karabakh (NK). Well, two things actually: ignorance and hypocrisy. Having shuttered most of their foreign bureaus long ago, there’s a distinct lack of expertise in the mainstream press on this – and many other – regional hot spots. That’s translated to a series of Nagorno-Karabakh “explainers” that read like Wikipedia-ripoffs hastily filtered through Washington’s built-in “blame Russia” conflict-colander.

Peddling in platitudes, they assume binaries that aren’t and Russian aggression that isn’t. All the while missing the core cause of this far worse than standard flare-up along the unmonitored Azeri-Armenian “line of contact.” In other words, the Erdogan elephant in the regional room. High-intensity air and armored combat has entered its tenth day, with little sign of abatement. Hundreds have been killed, including civilians, and major cities shelled, along with credible and corroborated reports that Turkey has indeed shipped in Ankara-paid Syrian mercenaries to support the Azeri army.

In other words, while the current conflict has largely local roots, and is prolonged by subpar political leaders on both sides of the frontlines, the real inciter this time around is Turkey. That is, the violence is heightened and widened by a NATO member state that’s led by an ethno-national-chauvinist president who’s stretched that alliance’s ostensible purpose and utility well past breaking point.

Nevertheless, the media cries Russia-foul, or at best implies guilt-parity between Moscow and Ankara. Yet it’s a mistake to equate the proxy-patron relationships fostered by Russia and Turkey. They are of a totally different character; frankly, in completely different leagues. The Russo-Armenian – and equally existent Russo-Azeri – connection is characterized by Moscow’s restraint, caution, and sure, perhaps a touch of the cynical. Turkey, conversely, now acts as though bonded by (mutual-Turkic) blood with Azerbaijan. It is an affair defined by Ankara’s aggression, risk-taking, and more than a dose of ethno-religious toxicity.

Russia starts its Armenian relationship calculus with the assumption that it should avoid military intervention – even though Yerevan and Moscow are Collective Security Treaty Organization (CSTO) allies – then comes up with reasons not to. For example, by not recognizing de facto Armenian-controlled Nagorno-Karabakh as de jure Armenia, Moscow can brush off collective defense treaty obligations so long as the Azeris don’t seriously attack across the internationally-recognized border. Believe you me, Baku understands the rules of this game of pretend. The Turkish position is completely different. Ankara is encouraging the Azeris’ game-change-seeking conquest campaign, and actively sending guns, bombs, drones, and armed human Syrians Baku’s way.

Would that it were only the corporate media pushing this purposeful – though sometimes just uninformed – obfuscation and misinformation. We the People’s pretend leaders, and their pretend opposition, in Washington are about as awful as the pretend free press. The Trump administration has been pretty quiet about the NK-blowup. That wouldn’t be such a bad thing, per-say – and would certainly the reflect real limits of America’s capacity and capability to do good in far-flung lands. That is, it might be fine if the president and his team were at least willing to name and shame Turkey, or support congressional calls and resolutions condemning Azeri-aggression and halting arms sales to Baku.

Trump’s Democratic presidential opponent, Joe Biden, was initially no better on the NK-crisis. Plus, per usual, Uncle Joe sprinkled a bit of Russia-reminder dust over the whole affair. That bit was really irksome. See, pretty much right off the bat – after obligatory nods to peace and negotiations – the Biden campaign statement quipped that the U.S. should be “calling for Russia to stop cynically providing arms to both sides.” Those Biden Boys just couldn’t help themselves. OK, so let’s try something new – for the modern media, at least – and dig into that statement just a bit.

“Cynical” Russian Arms Sales: Pot Meet Kettle

For starters, it’s hard to take seriously any arms sales-aspersions tossed by the globe’s number one gunrunner. According to a March report from the Stockholm International Peace Research Institute (SIPRI), during 2015-19, the U.S. accounted for 36 percent of world arms exports, up five points from the previous 2010-14 cycle. Russia is the world’s second leading “merchant of death,” naturally, but it only shipped-off 21 percent of global arms – and that’s down six points since the last cycle.

America also plied its lethal wares to 96 different states – surely none of those countries could’ve been on opposing sides of a conflict, right? Well, about that: you know, actually Washington’s customers were, are, and will ever be antagonists. A few examples should suffice:

India and Pakistan have lived in a state of cold, proxy, and occasional mass-blood-letting conventional war, for 73 odd years now. No matter, Uncle Sam arms both. In the same 2008-18 period, American defense companies shipped $3.1 billion over to Delhi and $2.5 billion to Islamabad. And speaking of those Pakistani customers, remember that they alternate between active and tacit backing of the Taliban insurgents trying to overthrow the U.S.-installed and allied Afghan government. That tottering regime received just a tad less in American arms largesse, $2.40 billion, though that’s 70.8 percent of Kabul’s total arms imports.

Tiny Qatar has recently been at odds, and even blockaded, by the main Gulf State powers of Saudi Arabia and the U.A.E. Yet all were top US arms-recipients in the same period: $2.63 billion for Qatar (68.3 percent its total imports); $7.60 billion for the U.A.E. (63.7 percent of its total); and $13.72 billion for America’s top global customer, Saudi Arabia (59.6 percent of total). Of course, the Saudis and Emiratis haven’t directly unleashed most of that hardware on Qatar just yet. Instead, they’ve preferred to bombard mostly helpless Yemenis for five full years of terror war now – to the tune of a couple hundred thousand dead; including a minimum of 85,000 starved-to-death children.

Besides, the USdoes provide economic aid, including ample security assistance, to both Armenia and Azerbaijan. According to a 2014 Congressional Research Service report, all three countries in the South Caucasus received security aid from Washington: During 1992-2010, Armenia trailed the pack at $223 million; its Azeri antagonists grabbed $327 million; meanwhile, Georgia – NATO/EU-aspirant and legit combat foe of bordering Russia – blew both out of the water at $896 million.

Plus, the same report – stop me if this sounds familiar – noted that “some [congress] members have maintained that the Armenian-Azerbaijani military balance is preserved by providing equal amounts (parity) in IMET [International Military Education & Training] and FMF [Foreign Military Financing] assistance to each country.”

Remember how, when pressed on the dual Armenian-Azeri arms deals in 2016, Russian Prime Minister Dmitry Medvedev argued that if Moscow stopped, “They would buy weapons in other countries, and the degree of their deadliness wouldn’t change…at the same time, this could to a certain degree destroy the balance.” Of course, it’s always worse when someone named Dmitry says it.

Since then, Congress appropriated far more “peace and security” funding – as the US government politely labels it – for both antagonists during Obama’s second term than in Trump’s first (and maybe last). Azerbaijan received $39 million in direct security assistance during 2013-16, compared to $8.5 million during 2016-19. Armenia got $61 million from Obama II, versus $19 million from Trump I – though much of Yerevan’s aid was related to combating WMD, and thereby not much use for war in Nagorno-Karabakh.

Anyway, it’s hard to see how any of that’s so different from – if not much worse than – Russia’s sales to Armenia and Azerbaijan. Apparently arms sales are only cynical if the contract’s signature is in Cyrillic.

Christian Sorensen – an Air Force veteran and researcher focused on the US war industry – noted in recent conversations with the author, that there is a rank hypocrisy inherent in American defense companies’ “tons of sales to Turkey.” After all, Ankara is hardly watching from the sidelines, but is rather the region’s prime Azeri-accelerant – encouraging President Aliyev’s bad behavior. That hasn’t stopped Washington from blessing off on $3.82 billion in arms sales to Ankara from 2008-18, or 45.8 percent of total Turkish weapons-imports. As for that “cynically arming both sides” bit, Turkey is also coming dangerously close to conflict with another American ally, Egypt – $2.8 billion in arms sales (2008-18); $1.3 billion annually in direct US security aid.

In addition to these historic macro stats, Sorensen emphasized the nefarious nature of recent arms deals with Ankara. “What stood out most,” he said, “were repeated sales of ordnance (and ordnance equipment and repair) to Turkey,” including Javelin JV anti-tank missiles (a joint Raytheon and Lockheed Martin project), four other Raytheon missile systems (AMRAAM, RAM, ESSM, AIM-9X), and Boeing-produced small diameter bombs. Incidentally, Defense Secretary Mark Esper made some good bank as a longtime lobbyist for Raytheon before joining his West Point ’86 classmate Secretary of State Mike Pompeo in the administration’s inner circle.

Mr. Sorensen knows a thing or two about such “revolving door” corrupt-cronyism, having detailed the crooked system in his recent bookUnderstanding the War Industry. Reviewing recent Turkish purchases, he noted that “the sheer variety of US corporations that sell to Turkey is another salient feature…[including] Honeywell, CAS, Raytheon, Lockheed Martin, SAIC, and Boeing.” As for contemporary relevance, and Nagorno-Karabakh crisis connections, Sorensen offered a biting and decidedly disturbing conclusion: “In the same month [September] that Biden officially commented on irresponsible [Russian] arms sales, the US government sold Turkey advanced technology for torpedoes and engineering services for shipborne fire control systems.” In other words: Biden pot, meet Putin kettle.

Then there’s the mercenary factor – which is increasingly an American business, as ex-U.S. soldiers have, since 9/11, eclipsed the old British, French, white Rhodesian, and apartheid South African staples. It seems the Turks aren’t the only ones offering hired guns Azeri autocrat Ilhan Aliyev-the-younger. Enter Erik Prince [of infamy], Donald Trump’s favorite fundamentalist, right-wing zealot of a mercenary, and the male-gendered half of the administration’s in-house sibling power-couple. (His sister is Education Secretary Betsy DeVos.). According to various reports, including one in the Washington Post, back in 2015 Prince planned to peddle crop-duster planes modified to carry guns and rockets to Baku “for use by the government of Azerbaijan in its decades-old conflict with ethnic Armenians, according to the former Prince associate.”

The kitted-out crop-dusters never made it there – probably due to an internal investigation started by Prince’s nervous partners, including ominous legal warnings that “The evidence strongly suggests that Mr. Prince was offering a foreign defense article (i.e., an attack aircraft) for sale” to Azerbaijan’s defense ministry, thus “brokering activities without being registered with [the State Department]. This presents potential violations of International Traffic in Arms Regulations (ITAR)” – the relevant US statute law. Nevertheless, according to his former associate, Prince did help set up a mercenary unit for Baku, to – per another 2018 report – “help it keep watch on the Nagorno-Karabakh region.”

In other words, the US and its officialdom-line-straddling gang of mercenaries could – and perhaps did – teach the Turks a trick or two about sending soldiers of fortune off to do their government’s bidding. Which brings us to NATO’s resident regional madcap: Turkey and its would-be Ottoman sultan, President Recep Tayyip Erdogan.

Our [Mad] Man in Ankara

Neither of the two official State Department statements, nor that of the opposing Biden campaign, fingers – or even mentions – Turkey by name. The initial release from State’s spokesperson referred only to “external parties,” whose intervention would be “unhelpful” and “exacerbate regional tensions.” Talk about a cop-out. On Monday, the second State Department overture – a joint statement “by the Governments of the United States of America, the Russian Federation, and the Republic of France” – didn’t even bother with euphemisms. Not a single external actor was mentioned. The Biden campaign masked its Turkey reference with talk of “third parties” who “must stay out of this conflict.” Of course, it offered that rather veiled rebuke only after taking that shot at Russia in the statement’s second sentence.

In a rational country, one whose leaders even occasionally peered over their Russia-goggles, that might seem strange. After all, by any measure Ankara has always – but especially now – held the more aggressive, interventionist, and one-sided position on Nagorno-Karabakh. Only intellectual consistency, or honesty, isn’t really Washington’s thing.

Here’s an illustrative thought experiment, for example: How do you think the Biden campaign’s statement would have read if Putin, not Erdogan, were shipping Moscow-paid mercenaries into the current fray? Something tells me it’d merit a mention or two. To be fair, a later Biden tweet did call on Turkey by name – “to stay out of this conflict” – but didn’t mention the mercenary-deployment or retract the earlier statement’s Russia-baiting. So there we are again, the duopoly offering Americans platitude over principled-policy; partisan-hedging instead of honesty.

The straw that breaks the back of Russian patience will likely relate to Moscow’s own oft-forgotten “dirty war” on Islamist terror in the nearby North Caucasus fiefdom of its federation. Though admittedly a sometimes self-inflicted wound of Soviet and Russian repression, remember that exorbitantly bloody Islamist-inspired attacks reached Moscow not so long. Overall, while hard data is difficult to come by, around 1200 members of the Russian security forces, and 600 civilians were killed in the North Caucasus insurgency from 2009-17 alone.

During the Second Chechen War (1999-2006) that preceded this insurgency, the Russian Defense Ministry admitted to 3,603 servicemen deaths – though a committee of soldiers’ mothers insists Moscow severely downplayed the casualty statistics. In other words, even by modest official counts, more Russian troops died over 18 years in North Caucasus conflicts than American troopers died in Iraq over a similar timespan. The Kremlin, and its common citizenry, are unlikely to take lightly even the potential of any additional Islamist intrusion from the south.

Putin’s early popularity-rise was partly related to average Russians’ sense that he – sound familiar? – would be, and was, tough on terror. Only a strongman in the Kremlin – not some booze-soaked Western-stooge like Boris Yeltsin – could ensure their safety from the Islamic-crescented Caucasus hordes. The American-induced “shock therapy” of crony capitalism masquerading as democracy hadn’t worked out so well for an increasingly impoverished and crime-ridden post-Soviet citizenry, thus if the cost of Putin’s “peace” was a bit of liberty…so be it.

In past decades, Ankara and Moscow mostly cooperated in Russia’s anti-Islamist – though equally anti-secessionist – campaign in the North Caucasus, but the sometime antagonists’ paths have since diverged. Erdogan and Putin aren’t always implacable foes – even the tinpot-sultan is too smart for that – and have made trade deals, talked Syrian peace, sealed some air-defense arms deals, and often defused conflict-area tensions at the eleventh hour. Still, there’s something exceedingly precarious about relatively overt Russian and Turkish interventionism on-the-ground, and on different sides, in the contemporary ungoverned spaces of Libyan and Syrian proxy/civil wars.

The Russians regard themselves – not altogether incorrectly – as the more rational and realistic actors in both conflicts, backing admittedly incorrigible strongmen that (generally) oppose Islamist influence. Turkey, on the other hand, has proven more amenable to both Muslim Brotherhood types (like Libya’s GNA, Government of National Accord) and outright Sunni jihadis (Al Qaeda-esque fighters in the last rebel strongholds – like Idlib – of Northwest Syria). It is from the latter element – and their massive refugee detritus within Turkey’s borders – that Ankara pulls its private hired army, and ships them off to Libya, and now apparently Azerbaijan. If that infusion continues and/or escalates, or if Turkish troops or aircraft truly intervene in the NK-combat, expect the so far remarkably restrained Putin to pronounce “this far and no further.”

Some combination of those Turkish provocations might prove Russia’s “red line,” and unlike the more wobbly Barack Obama – expect Putin to stick to his guns once he’s delineated said boundaries. On Tuesday, the head of Russia’s SVR Foreign Intelligence Service hinted at this, warning that Turkey’s infiltration of Syrian mercenaries into Nagorno-Karabakh risks creating a launch pad for – what Moscow views as – jihadi elements entering Russian territory. Tehran agrees, apparently, as hours later Iranian Foreign Minister Mohammad Javad Zarif joined a phone call with his Russian counterpart Sergei Lavrov, during which both expressed concern over the involvement of Turkish-paid Syrian – and potentially Libyan! – fighters in the NK-conflict.

For all that, Brussels pretends that Turkey is still salvageable – whether in Karabakh, Libya, Syria, Cyprus, or wherever else Erdogan wildly diverges from the alliance’s purported positions or principles. In a joint news conference with Turkey’s Foreign Minister on Monday, NATO’s Secretary-General said: “I expect Turkey to use its considerable influence to calm tensions.” He failed to mention how or why that’s anything more than fantasy.

Perhaps the secretary-general forgot that NATO couldn’t even avoid two top members – with the second (Turkey) and third (France) largest alliance armies – from nearly duking it out on the high seas off the coast of another proxy war, Libya, in June. And wouldn’t you know, the very next day after his joint NATO press conference, Ankara’s foreign minister rejected the entire concept of internationally-brokered peace or ceasefires short of an outright Azeri victory!

Meanwhile, on Tuesday, Armenian Prime Minister Nikol Pashinyan at least opened the door for “mutual concessions’ with Azerbaijan on Nagorno-Karabakh. Plus, Armenia’s president – though no peach himself – also offered a more reality-attuned analysis: that Turkish interference is “taking the conflict an order up in magnitude” and “creating something that will eventually become another Syria of the Caucasus.”

Speaking of Syria – yea, I’ll say it – President Bashar al-Assad’s read isn’t exactly wrong either – and certainly less delusional than the naive NATO-line. In an interview published Tuesday, Syria’s strongman called a spade a spade, specifically that “[Erdogan]…was the main instigator and the initiator of the recent conflict in Nagorno-Karabakh between Azerbaijan and Armenia.”

Even the most flawed messenger can deliver a dead-on message.

Because here’s the rub: if Russia ever does roll into Nagorno-Karabakh, Armenia, and/or Azerbaijan – in other words, if this thing really gets out of hand – it will be on account of the obscene offensive of a key Turkish member of NATO’s purported “defensive” alliance. Ankara will have done so, have caused it, through the sale – and maybe direct use – of mainly NATO-standard-issue, and largely U.S.-manufactured, weapons systems.

Of course, that’s as uncomfortable as it is unsatisfying. So instead, count on Washington to blame Russia – which is always worth its weight in comfort, satisfaction, and political point-scoring…if not sound strategy. But hey, that’s future America’s problem: appropriate as ever for a nation as strategically-leveraged as it is financially debt-ridden.

You know, back in the late Ottoman Imperial Era – when that bygone empire was doing the Armenian genocide Ankara still denies – it was common to refer to Turkey as “the sick man of Europe.” Forgive the COVID-age pun, but if Washington and its media lackeys keep up their delusion and overreach, it may not be long before folks start dubbing Uncle Sam the “sick man of planet Earth.”

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

The Third Rule of Court Packing Is You Only Talk About Court Packing After The Election

The first rule of Court packing is you do not talk about Court packing.

The second rule of Court packing is you do not talk about Court packing.

The third rule of Court packing is you only talk about Court packing after the election.

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The Third Rule of Court Packing Is You Only Talk About Court Packing After The Election

The first rule of Court packing is you do not talk about Court packing.

The second rule of Court packing is you do not talk about Court packing.

The third rule of Court packing is you only talk about Court packing after the election.

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An Imagined #SCOTUS Group Chat for FDA v. American College of Obstetricians and Gynecologists

–8/26/20–

@Clerk: SG filed application for stay in abortion case. District Court entered nationwide injunction to make it easier to obtain mifepristone during the pandemic.

–9/10/20–

@Clerk: Briefing completed in abortion case.

@Chief: I vote to deny the stay. We are too close to the election to rule on abortion. What do you all think?

@RBG: Steve, Sonia, Elena, and I will join you. That makes five.

@Chief: Okay, Sam and Clarence, I assume you want to dissent?

@PhilliesFan: I can’t believe I have to do this again.

@BigRed: We should vote to overrule Roe already.

@Chief: Okay, Neil and Brett, what do you think?

@RobesNotCapes: Uh, I won’t say anything. Still smarting from Bostock.

@BeachWeek: I’ll find some technical jurisdictional way to avoid ruling on abortion again.

@Chief: Fine. Sam, can you please finish your dissent in about a week or so.

–9/18/20–

@PhilliesFan: Hey Chief, now you have four votes.

@TheRealChief: I have an idea. What if we deny the stay without denying the stay.

@Chief: What do you mean Elena?

@TheRealChief: What if we remand to the District Court, and give it another opportunity to reconsider whether its nationwide injunction was proper. Then we don’t have to do anything, but the Trump Administration loses. It’s a #WinWin.

@BigRed: How is that a Win-Win? The government loses.

@BreyerPager: And perhaps the District Court can consider whether the COVID situation is still severe enough to warrant this restriction. Perhaps the situation is different. Perhaps the facts balance out differently. I like it.

@PhilliesFan: You’ve got to be kidding me. Do you really think the public is that stupid? You are denying the stay.

@Chief: Well, we can say that we are not indicating the Court’s views on the merits. I like it. What do you think Neil?

@RobesNotCapes: Yeah, we really shouldn’t be talking about abortion. Amy’s confirmation hearing is in a few days. Let’s keep things smooth for her. Remember when you jerks reversed one of my opinions during my hearing? Total d*ck move.

@BeachWeek: I have an idea. Let’s cite some obscure opinion from five decades ago so it is really clear we aren’t talking about abortion. Maybe Justice Harlan. And maybe we can dismiss the ACA as improvidently granted. Really make things easier for the Glorious ACB.

@MyBelovedWorld: Now, don’t you start.

@TheRealChief: #TooSoon

@BeachWeek: Whatever. I am going to be the swing vote soon.

@MyBelovedWorld: You will be the swing vote until we welcome Justices Brown Jackson and Kruger. 6-5 will be the new 5-4.

@BreyerPager: And I will be the swing vote. Now they will have to answer my questions!

@TheRealChief: And I will be the Real Chief.

@Chief: What about me?

@TheRealChief: You can write the ERISA cases.

@PhiliesFan: Okay, I’ve circulated my dissent. Does anyone want to even bother replying? I called you all hypocrites. Anyone? <InsertFerrisBueller.gif>

–@GoIrish Joins Group–

@GoIrish: Hi everyone. Is it too soon for me to join?

@Chief: Welcome Amy. You were nominated. That’s close enough.

–@MerrickGizzle Joins Group–

@Chief: Let me clarify. You were nominated, and have a hearing scheduled.

–@MerrickGizzle Leaves Group–

@GoIrish: Thanks Chief. I will need a bigger parking spot to fit my minivan.

@BigRed: I can move my RV a bit.

@Chief: Okay, we done here? It’s getting late. I am going to call it quits.

@TheRealChief: Somewhere Josh just wrote another blog post about you retiring.

@Chief: Whatever, I’ve blocked him on Twitter.

@PhilliesFan: #BlueJune.

@Chief: Stop it! That stopped being funny three months ago. I can’t believe he wrote an entire stupid article about the term. He really isn’t funny. I doubt anyone even bothers reading his stuff till the end.

@DeputyMarshall: Okay, I am going to gavel this chat to a close. Conference tomorrow morning. Night tweeps.

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An Imagined #SCOTUS Group Chat for FDA v. American College of Obstetricians and Gynecologists

–8/26/20–

@Clerk: SG filed application for stay in abortion case. District Court entered nationwide injunction to make it easier to obtain mifepristone during the pandemic.

–9/10/20–

@Clerk: Briefing completed in abortion case.

@Chief: I vote to deny the stay. We are too close to the election to rule on abortion. What do you all think?

@RBG: Steve, Sonia, Elena, and I will join you. That makes five.

@Chief: Okay, Sam and Clarence, I assume you want to dissent?

@PhilliesFan: I can’t believe I have to do this again.

@BigRed: We should vote to overrule Roe already.

@Chief: Okay, Neil and Brett, what do you think?

@RobesNotCapes: Uh, I won’t say anything. Still smarting from Bostock.

@BeachWeek: I’ll find some technical jurisdictional way to avoid ruling on abortion again.

@Chief: Fine. Sam, can you please finish your dissent in about a week or so.

–9/18/20–

@PhilliesFan: Hey Chief, now you have four votes.

@TheRealChief: I have an idea. What if we deny the stay without denying the stay.

@Chief: What do you mean Elena?

@TheRealChief: What if we remand to the District Court, and give it another opportunity to reconsider whether its nationwide injunction was proper. Then we don’t have to do anything, but the Trump Administration loses. It’s a #WinWin.

@BigRed: How is that a Win-Win? The government loses.

@BreyerPager: And perhaps the District Court can consider whether the COVID situation is still severe enough to warrant this restriction. Perhaps the situation is different. Perhaps the facts balance out differently. I like it.

@PhilliesFan: You’ve got to be kidding me. Do you really think the public is that stupid? You are denying the stay.

@Chief: Well, we can say that we are not indicating the Court’s views on the merits. I like it. What do you think Neil?

@RobesNotCapes: Yeah, we really shouldn’t be talking about abortion. Amy’s confirmation hearing is in a few days. Let’s keep things smooth for her. Remember when you jerks reversed one of my opinions during my hearing? Total d*ck move.

@BeachWeek: I have an idea. Let’s cite some obscure opinion from five decades ago so it is really clear we aren’t talking about abortion. Maybe Justice Harlan. And maybe we can dismiss the ACA as improvidently granted. Really make things easier for the Glorious ACB.

@MyBelovedWorld: Now, don’t you start.

@TheRealChief: #TooSoon

@BeachWeek: Whatever. I am going to be the swing vote soon.

@MyBelovedWorld: You will be the swing vote until we welcome Justices Brown Jackson and Kruger. 6-5 will be the new 5-4.

@BreyerPager: And I will be the swing vote. Now they will have to answer my questions!

@TheRealChief: And I will be the Real Chief.

@Chief: What about me?

@TheRealChief: You can write the ERISA cases.

@PhiliesFan: Okay, I’ve circulated my dissent. Does anyone want to even bother replying? I called you all hypocrites. Anyone? <InsertFerrisBueller.gif>

–@GoIrish Joins Group–

@GoIrish: Hi everyone. Is it too soon for me to join?

@Chief: Welcome Amy. You were nominated. That’s close enough.

–@MerrickGizzle Joins Group–

@Chief: Let me clarify. You were nominated, and have a hearing scheduled.

–@MerrickGizzle Leaves Group–

@GoIrish: Thanks Chief. I will need a bigger parking spot to fit my minivan.

@BigRed: I can move my RV a bit.

@Chief: Okay, we done here? It’s getting late. I am going to call it quits.

@TheRealChief: Somewhere Josh just wrote another blog post about you retiring.

@Chief: Whatever, I’ve blocked him on Twitter.

@PhilliesFan: #BlueJune.

@Chief: Stop it! That stopped being funny three months ago. I can’t believe he wrote an entire stupid article about the term. He really isn’t funny. I doubt anyone even bothers reading his stuff till the end.

@DeputyMarshall: Okay, I am going to gavel this chat to a close. Conference tomorrow morning. Night tweeps.

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Does The Coronavirus Make Our Constitutional Freedom Of Assembly Obsolete?

Does The Coronavirus Make Our Constitutional Freedom Of Assembly Obsolete?

Tyler Durden

Fri, 10/09/2020 – 00:10

Authored by Brandon Smith via Alt-Market.us,

Over the past couple of weeks a trend has become apparent in the state of Idaho, specifically in Moscow, Idaho in Latah County. The city council of Moscow has issued a mandatory mask order, and they are using police to enforce it. Bizarrely, the city had ZERO deaths from Covid at the time the mask order was instituted, meaning their action was in response to…nothing.

Idaho has had a total of 500 deaths from Covid since the beginning of the outbreak. To put this in perspective, the state also has around 400 deaths from diabetes every year, and 250 deaths from the flu/pneumonia according to the CDC. Perhaps they should ban sugar, and make masks mandatory for the flu as well, just to be safe…

The residents of Moscow are not too happy with the city council attempt to unilaterally enforce such mandates. Church congregations in particular are fighting back by holding outdoor services without masks. The city has responded by ARRESTING the pastors of any church that dare to defy mask laws.

I bring up this specific instance of coronavirus enforcement because the circumstances surrounded it are disturbing…

First, it is not surprising that Latah County is one of the ONLY counties in Idaho that leans to the far-left politically, and the majority of the city council of Moscow is made up of leftists. Moscow is also the home of the University of Idaho. It seems wherever the political left sets up shop, constitution violating mandates on the coronavirus are prevalent. Even if a state government is predominantly more conservative and less antagonistic on lockdowns, left leaning city and county officials have decided they are going to enforce their own restrictions anyway.

Second, the mask rules are being used against people who held meetings outdoors, and this is something I am seeing all over the world right now. Why is the science of virus behavior in outdoor open air environments not being discussed AT ALL in the mainstream? Why is no one talking about the fact that open air and UV rays from sunlight KILL microorganisms? The chance of contracting the coronavirus outdoors is next to zero, yet mask rules are being strictly instituted from Melbourne, Australia to New York, New York to Moscow, Idaho.

Government officials must surely be aware that the science contradicts these orders. And if this is the case, then this only confirms that such restrictions are not about saving lives; they are about control.

Third, the use of targeted arrests against organizers of group events is clearly an attempt to frighten the public into compliance without confronting their concerns directly. The goal is to encourage self censorship and to manipulate citizens to avoid public assembly without coming out openly and saying “We are banning public assembly”. It’s an end-run around the constitution, and these actions are increasing in the US.

As I have noted in past articles, I have been watching the draconian coronavirus measures in Australia and New Zealand very closely. My concerns rest on the other side of the world because what I see happening there is perhaps a beta-test for high intensity lockdown restrictions in other western nations including America.

Restrictions in these countries are rooted in what they are calling “Level 4 lockdowns”, and include mandatory mask orders (even outside), mandatory social distancing, bans on public assembly, church closures, citizens are not allowed to travel more than 3 miles from home (essentially people are under house arrest, with only one hour per day outside to exercise), people who contract the virus or are suspected of being infected can be locked up in Covid camps for as long as government officials deem it necessary, and in New Zealand these camps are managed by the military.

People speaking out against the lockdowns online are being arrested for “incitement”. Free speech in Australia is nearly dead.

I believe the establishment of medical tyranny is moving so quickly in Australia because the vast majority of the population has been disarmed and they have limited means to fight back. It’s an easy place to test out control measures. Protests are taking place, but without a means of self defense the citizenry is at the mercy of government and law enforcement. If the government wants to crack down violently on anti-lockdown groups, there will be little the public can do to stop them.

What I see happening in places like Moscow, Idaho is the initial stages of medical tyranny similar to what is happening in Australia. What I see is an incremental form of totalitarianism, and it simply cannot be tolerated.

We have heard it often during this pandemic event that we are “all in this together” and the lockdowns are “serving the greater good”, but this is nonsense. The constitutional rights of public assembly and freedom of religion in particular are being stifled, and these rights ARE the greater good. They are far more important than the lives of the select few people who are susceptible to the virus.

Beyond that, why are we not talking about the number of people that are losing their jobs due to the lockdowns? How about the number of people that will die over time from poverty or depression or economic collapse because of the lockdowns? Is it not a matter of the “greater good” that we end the restrictions rather than increase them?

No virus is worth this. It would not matter if we were talking about the Black Plague. Ultimately, though, Covid affects a very small portion of the US population. The real solution to the pandemic is simple:

The people who are most susceptible should voluntarily stay home and quarantine, and the rest of us should get on with our lives with an open economy and normal constitutional rights. Why is this option not being presented?

Mask laws in particular are truly bizarre. There is little evidence that cloth masks are effective in the slightest, but the idea that “everyone must wear a mask” in order for the masks to work reveals the true nature of the restrictions.

If your mask is useless unless I also wear a mask, then the masks we are wearing are not offering much protection and their enforcement should be questioned. The fact that numerous states and counties across the US have had infection spikes even with strict mask mandates suggests to me that the masks are pointless. Even the CDC questions the effectiveness of cloth masks and recommends N95 masks for healthcare workers until there is some evidence that cloth masks function.

If the CDC doesn’t believe they work very well, then why are people even wearing them, and why are people being arrested for refusing to use them? Again, the science does not support the mandates, so they must be about control rather than saving lives. If you can get a population acclimated to having the government involved in the smallest intricacies of their lives on a daily basis then freedom goes out the window and the establishment enjoys total power to do whatever they please.

Don’t get me wrong, if a person WANTS to wear a mask, or take other precautions no matter how dubious, then I have nothing bad to say about them. That is their decision. If a business wants to require masks before entering, then that is also their right as property owners. I can choose to not shop there if I don’t like it. But it is not anyone’s right to attempt to force others to comply with their baseless rules just so they can personally feel safer. If I’m not wearing a mask and you don’t like it, then don’t come near me; it’s very easy.  As leftists like to say:  My body my choice.

Take note of how many instances we have seen so far of Mask Nazis physically attacking people not wearing masks. Isn’t this the exact opposite of what they have been preaching?  Also take note that Mask Nazis tend to be avid supporters of BLM and Antifa mobs that ignore pandemic restrictions.  Again, they don’t care about health issues, they are angry because you are not submitting to their control.

Another terrifying development during the pandemic is the use of executive orders and executive authority to initiate restrictions without public oversight. Here is the bottom line: No government, whether it be federal, state or local, has the power to violate your constitutional rights. Period. If a law or executive order tramples on the Bill of Rights, then it is automatically null and void and should be defied. National emergencies do no supplant the constitution, regardless of what statists might claim.

Executive orders in particular are based on nothing other than color of law. In most cases they do not legally apply to the citizenry, only to government employees. Real laws are passed by the legislature, and are often added to a ballot to be voted on by the public. No governor, mayor, city council or president has the authority to assert new laws without oversight like a dictator.

The political left has been quick to point out these facts whenever Donald Trump issues executive orders, yet they are also quick to defend those orders issued by states and cities to enforce unconstitutional and illegal lockdowns.

In the end, whether you respect the Bill of Rights or not, laws are meaningless unless they are backed by principles. A law that is immoral and unjust should not be followed. Government representatives that abuse their positions to assert powers that are not granted them by the constitution should be unseated. The coronavirus changes nothing – Not a thing.

I would suggest that anyone who lives in a place that is trying to enforce restrictions that are contrary to the Bill of Rights act now to disrupt what is likely an incremental march towards medical tyranny. If you don’t stand in opposition to these actions now, they will only grow over time until a majority of people become conditioned to accept them.

*  *  *

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Global Food Prices Rise As Famine Threat Emerges 

Global Food Prices Rise As Famine Threat Emerges 

Tyler Durden

Thu, 10/08/2020 – 23:50

Food prices continue rising during the coronavirus pandemic, jeopardizing food security for tens of millions worldwide.

On Thursday, the Food and Agriculture Organization (FAO) of the United Nations said world food prices rose for the fourth consecutive month in September, led by surging prices for cereals and vegetable oils, reported Reuters

FAO’s food price index, which tracks the international prices of the top traded food commodities (cereals, oilseeds, dairy products, meat, and sugar), averaged 97.9 in September versus a downwardly revised 95.9 in August.  

FAO’s cereal price index jumped 5.1% in September and is 13.6% above its value one year earlier. 

“Higher wheat price quotations led the increase, spurred by brisk trade activity amid concerns over production prospects in the southern hemisphere as well as dry conditions affecting winter wheat sowings around Europe,” FAO said.

Vegetable oil price soared 6% in September, over August prices, due to rising palm, sunflower seeds, and soy oil prices, hitting 8-month highs. 

Dairy prices barely budged over the month, with moderate price increases for butter, cheese, and skim milk powder, offset by a decline in whole milk powder. 

Sugar prices declined 2.6% over the month, mainly because of a global glut expected to persist through the 2021 season. 

Meat prices slipped .9% on the month and were +9.4% year-on-year, with prices for pork slumping due to China’s ban on pork imports from Germany after several cases of African swine fever were recently found. 

As outlined by The World Bank in September, rising food costs because of the virus pandemic have significant impacts on vulnerable households, many of which are being crushed into poverty and hunger. 

“As the coronavirus crisis unfolds, disruptions in domestic food supply chains, other shocks affecting food production, and loss of incomes and remittances are creating strong tensions and food security risks in many countries,” The World Bank said. 

In August, UN World Food Program (WFP) Director David Beasley warned that $5 billion in emergency funds are needed within six months to avert a global famine. 

UN secretary-general, Antonio Guterres recently said the world is experiencing one of the worst food crises in five decades. The virus-related downturn is driving wealth inequality to extremes and pushing millions of people into extreme poverty. 

Here are the highest at-risk areas for a food crisis breakout: 

Food insecurity risks, produced by soaring prices and disrupted supply chains because of the virus pandemic, are not limited to the US. A top food bank in the country recently warned of a nationwide “meal shortage” in the next 12 months. 

And throughout history, food price volatility and disruptions have often resulted in social unrest. An unintended consequence of the global downturn could be a continuation of the social unrest, seen across the world. 

via ZeroHedge News https://ift.tt/34CYM57 Tyler Durden

Masking, Propaganda, & The Outrage Mob’s Murder Of Academic Freedom

Masking, Propaganda, & The Outrage Mob’s Murder Of Academic Freedom

Tyler Durden

Thu, 10/08/2020 – 23:30

Via Off-Guardian.org,

If you believe in academic freedom, as well as free speech overall, please consider signing this petition, and sharing it with others who believe that higher education must be free from censorship of any kind, whether by the state, corporations, foreign interests, pressure groups, or by the university itself.

A full professor in NYU’s Department of Media, Culture and Communication (since 1997), and a recipient of fellowships from the Rockefeller, Guggenheim and Ingram Merrill Foundations, Prof. Miller teaches a course on propaganda, focusing not only on the history of modern propaganda, but – necessarily – on propaganda drives ongoing at the time.

The aim is to teach students to identify such drives for what they are, think carefully about their claims, seek out whatever data and/or arguments have been blacked out or misreported to protect those claims from contradiction, and look into the interests financing and managing the propaganda, so as to figure out its purpose.

On Sept. 20, after a class discussion of the case for universal masking as defense against transmission of SARS-COV-2 (in which discussion she did not participate), a student took to Twitter to express her fury that Prof. Miller had brought up the randomized, controlled tests – all of those so far conducted on the subject – finding that masks and ventilators are ineffective at preventing such transmission, because the COVID-19 virions are too small for such expedients to block them.

Prof. Miller urged the students to read those studies, as well as others that purport to show the opposite, with due attention to the scientific reviews thereof, and possible financial links between the researchers conducting them, and such interests as Big Pharma and the Gates Foundation. Prof. Miller followed up by providing the links to the former studies (not easily found on Google, though they have all appeared in reputable medical journals), and other materials, including a video of a debate on the subject.

The student was so outraged by Prof. Miller even mentioning those studies that she called on NYU to fire him:

Having contacted NYU’s bias response line to report him, and getting no satisfaction there, the student kept on tweeting her demand for Prof. Miller’s termination, due to his “unhealthy amount of skepticism around health professionals,” and a range of other posts that she had seen on News from Underground, Prof. Miller’s website, and found no less insidious, misreporting that their sources were “many far right and conspiracy websites,” and therefore, evidently, not worth reading.

The student’s call provoked a storm of tweets, many attacking her, and others thanking her – one of which was posted by Prof. Miller’s department chair, promising to act on her demand:

“Julia, thank you for reporting this issue. We as a department have made this a priority and are discussing next steps.”

Soon after this pledge of institutional support, the dean of NYU’s Steinhardt School (in which Prof. Miller teaches), together with a doctor who advises them on COVID-19 policy, emailed each of Prof. Miller’s students (without putting him on copy), starting with a ritual nod to “academic freedom,” then hinting that the studies noted in that class were dangerous misinformation. To set them straight, the two advised the students to consult the “authoritative” CDC—specifically, its list of several recent studies finding that masks are effective against COVID-19.

(That the CDC itself, as well as Dr. Fauci, had, until April, publicly adhered to the consensus of those “dangerous” studies went unmentioned.) The two concluded with a stern reminder that the students are obliged to mask on campus (although Prof. Miller had made quite clear that he was not suggesting that they break NYU’s rule, which he observes himself.)

Thus that student’s tweets immediately prompted NYU to take her side, and several media outlets to attack Prof. Miller for his dissidence, without interviewing him. The following week, NYU followed up by urging him to cancel his propaganda course next term, and, instead, teach two sections of his course on cinema. Their rationale was that it would be “better for the department,” because enrollment in the latter course is always high; but then so are the enrollments for Prof. Miller’s propaganda course, which has earned the highest praises from its students.

For testimonials from Prof. Miller’s students click here.

Below is the text change.org petition, you can sign it here.

We the undersigned support the academic freedom of Prof. Mark Crispin Miller, now under siege at New York University for urging students in his propaganda course to read scientific literature on the effectiveness of masks against transmission of COVID-19.

We see his situation as but one example of a growing global trend toward rigid censorship of expert views on urgent subjects of all kinds; so this petition is not just in his defense, but a protest on behalf of all professors, doctors, scientists and journalists who have been gagged, or punished for their rights to freely research, study, and interpret data on a variety of matters regardless of their controversial nature.

Censorship is nothing new. We have been edging toward it ever more for decades, as both academia and the media have long discouraged free investigation and discussion of urgent public questions of all kinds, as those who would attempt to tackle them empirically have been slandered as “conspiracy theorists” or “truthers” and other slurs deployed to shut them up, or purge them as purveyors of “misinformation,” “fake science” or “hate speech.”

Such censorship has blocked the sort of open, civil, reasoned give-and-take without which higher education—indeed, any education—is impossible, as is scientific progress overall.

We see Prof. Miller’s situation as a flashpoint in the struggle not just to reclaim but to protect free speech and free inquiry. NYU officials have no right to intervene in Prof. Miller’s courses or message his students surreptitiously undermining his integrity as an instructor.

They have no right to deprive him of the courses he was hired to teach and they should not join in a public smear campaign against the very rights they should uphold at a university.

That so stated, we urge that NYU respect his academic freedom, and thereby set a good example for all other schools with faculty who dare contest official narratives. Otherwise, “education” there will be mere training for compliance, stunting students’ minds instead of opening them – a practice fatal to democracy, and, finally, to humanity itself.

via ZeroHedge News https://ift.tt/33I2j2P Tyler Durden

Trump Administration on Wrong Side of Important Religious Freedom Case Before the Supreme Court

Religion

  On Tuesday, the Supreme Court heard oral argument in Tanzin v. Tamvir, an important religious freedom case. The Trump administration, which in other contexts claims to be a champion of religious liberty, took a very different position here. Nick Sibilla of the Institute for Justice has a helpful summary of the issues at stake, in a Forbes article published the day before the argument:

The Trump Administration has prided itself as a defender of religious liberty. So it’s certainly been jarring to see the Justice Department urge the Supreme Court to curtail the nation’s preeminent protection for religious freedom.

On October 6, the Supreme Court will consider Tanzin v. Tanvir, a case that will decide if individuals can sue federal agents for damages under the Religious Freedom Restoration Act (RFRA). Passed by a near unanimous Congress in 1993, RFRA is most well-known for exempting and accommodating sincere religious beliefs from burdensome laws…

But RFRA was also modeled after Section 1983, the lodestar for civil rights litigation. Using language directly inspired by Section 1983, the Act expressly allows lawsuits against any “official (or other person acting under color of law)” if they “substantially burden a person’s exercise of religion.”

In this secondary role, RFRA has been critical to hold federal officials accountable by allowing individuals to sue them for damages. Although damage claims under RFRA are rather uncommon, without RFRA, victims would have few—if any—alternatives to vindicate their rights. Moreover, the small number of federal courts that have weighed in on this issue have almost universally sided with the plaintiffs, who in turn have been overwhelmingly Muslim victims of law enforcement abuse.

That includes Muhammad Tanvir, the respondent in the upcoming Supreme Court case. Tanvir is one of several Muslim men who allege they were harassed by the FBI to become informants. As part of this pressure campaign, FBI agents routinely called Tanvir and showed up at his workplace unannounced. At one point, they even threatened to deport Tanvir if he didn’t collaborate.

When the men refused to spy on their communities, citing their faith, the FBI retaliated by placing them on the No-Fly List. Being unable to fly came with devastating consequences. Tanvir could no longer work as a long-haul trucker and was forced to quit. Worse, the No-Fly List even prevented him from flying back home to Pakistan to see his mother, whose health was deteriorating.

Filing under RFRA, Tanvir and the others sued the FBI agents for damages. A district court dismissed their claims in 2016, but the Second Circuit U.S. Court of Appeal overturned that decision two years later….

Last summer, however, the Justice Department filed a cert petition calling on the Supreme Court to reverse the Second Circuit’s ruling; cert was granted in November.

Rather than try to downplay the importance of religious liberty, the Justice Department argued that damages against individual officers are not a form of “appropriate relief,” warning that even “the mere ‘specter of liability,’ might deter employees from carrying out their duties to the fullest extent.”

That’s a feature, not a bug. Officials should be deterred from violating religious freedom. Suing for damages plays a vital role in civil rights cases, and religious liberty is no exception….

In recent years, the Supreme Court has expanded protections for religious liberty while routinely blocking lawsuits against rogue agents. Tanzin v. Tanvir will reveal if religious freedom can trump this worrisome trend.

In this instance, it would seem, the administration’s support for religious freedom has been trumped by its solicitude for law enforcement agencies, which is also at the root of its opposition to ending qualified immunity. In addition, the administration that imposed a a series of discriminatory travel bans targeting Muslims may not be eager to crack down abuses of religious freedom where Muslims are often the primary victims.

As Sibilla explains in a later article analyzing the oral argument, RFRA allows “appropriate” remedies. There is room for reasonable disagreement about what qualifies as “appropriate” in some situation. But, as Sibillla describes, damage remedies are surely appropriate in a case like this one where they are the only available form of redress for the rights violations suffered by the victims, and the only effective means of deterring future violations:

“My clients lost precious years with loved ones, plus jobs and educational opportunities,” said City University of New York Law Professor Ramzi Kassem, who argued on behalf of Tanvir. “Without damages as a deterrent…agents remain free to repeat what they did here, flout RFRA until challenged in court and then back off…”

RFRA doesn’t expressly exclude money damages…. That’s a striking contrast to many other federal statutes that authorize lawsuits against the government. Just as telling, RFRA was deliberately modeled after Section 1983, which lets victims of civil rights abuses sue the local and state officials responsible; those lawsuits frequently include money damages, even though that statute never specifies damages as a form of relief….

[A]n injunction wouldn’t help Tanvir and the other plaintiffs, since the federal government has already removed them from the No-Fly List. “Injunctions would be useless against these one-time harms, leaving damages as the only remedy,” Kassem noted.

And as Justice Sonia Sotomayor pointed out [at the oral argument], when Congress was debating RFRA, lawmakers were “very concerned” about “the many families whose loved ones were being subjected to autopsies, in violation of their religious beliefs” and heard testimony that “injunctive relief would not help those families.” “Why would Congress take away from appropriate relief the only relief that could help some people for the violation of their rights?” she asked.

Sibilla also effectively rebuts claims that allowing money damages would subject government agents to personal liability (though I think such personal liability might sometimes serve as a valuable deterrent against abuses of power):

Justice Brett Kavanaugh… expressed “concern” that the FBI agents in the case could be forced to pay “damages in their individual capacities.”

But that fear is unfounded. Even when a plaintiff prevails in a civil rights lawsuit against federal employees, they rarely have to pay out of pocket. One recent study that analyzed successful lawsuits filed against federal Bureau of Prison officials found that “the federal government effectively held their officers harmless in over 95% of the successful cases brought against them, and paid well over 99% of the compensation received by plaintiffs in these cases.”

Simply put, “individual government officials almost never contribute any personal funds to resolve claims arising from allegations that they violated the constitutional rights of incarcerated people.”

The Administration’s selective solicitude for religious liberty is matched by similar double standards on the left side of the political spectrum, where many rightly condemn the travel bans, but often oppose judicial enforcement of prohibitions against government discrimination against religious schools or public health measures that discriminate against religious speech. For too many people, support for freedom of religion varies based on whose ox is being gored.

On the whole, current legal precedent protects religious freedom much more than many people—especially on the political right—tend to think. But the sort of ideologically motivated hypocrisy on display in Tanzin and too many other cases is nonetheless a troubling trend. Religious freedom for me and my friends, but not thee and yours is an attitude that can gradually erode protections for everyone, and especially for the most vulnerable and unpopular religious minorities.

UPDATE: Reading the oral argument, it is hard for me to tell which way the Court is leaning. But I tentatively think the three liberal justices and Justice Gorsuch are leaning towards the plaintiffs, Justice Kavanaugh and Justice Roberts are leaning towards the government, and the other two justices (Thomas and Alito) are very hard to gauge. If I am right (and I easily might not be!), there are at least enough votes to avoid overruling the court of appeals decision in favor of the plaintiffs.

With only eight justices on the Court in the wake of Ruth Bader Ginsburg’s death, a 4-4 split would result in leaving the lower court decision in place, albeit without any binding Supreme Court precedent being created. Of course it’s also possible this case will be reargued when and if Amy Coney Barrett gets confirmed. That happened in Knick v. Township of Scott last year, which was argued during the period when the delay in Kavanaugh’s confirmation led to a few cases being heard by only eight justices. As it turned, out Knick was a 5-4 decision, and the reargument was likely done in order to enable Kavanaugh to participate and avoid a 4-4 split.

Either way, this is an important case that bears watching.

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Trump Administration on Wrong Side of Important Religious Freedom Case Before the Supreme Court

Religion

  On Tuesday, the Supreme Court heard oral argument in Tanzin v. Tamvir, an important religious freedom case. The Trump administration, which in other contexts claims to be a champion of religious liberty, took a very different position here. Nick Sibilla of the Institute for Justice has a helpful summary of the issues at stake, in a Forbes article published the day before the argument:

The Trump Administration has prided itself as a defender of religious liberty. So it’s certainly been jarring to see the Justice Department urge the Supreme Court to curtail the nation’s preeminent protection for religious freedom.

On October 6, the Supreme Court will consider Tanzin v. Tanvir, a case that will decide if individuals can sue federal agents for damages under the Religious Freedom Restoration Act (RFRA). Passed by a near unanimous Congress in 1993, RFRA is most well-known for exempting and accommodating sincere religious beliefs from burdensome laws…

But RFRA was also modeled after Section 1983, the lodestar for civil rights litigation. Using language directly inspired by Section 1983, the Act expressly allows lawsuits against any “official (or other person acting under color of law)” if they “substantially burden a person’s exercise of religion.”

In this secondary role, RFRA has been critical to hold federal officials accountable by allowing individuals to sue them for damages. Although damage claims under RFRA are rather uncommon, without RFRA, victims would have few—if any—alternatives to vindicate their rights. Moreover, the small number of federal courts that have weighed in on this issue have almost universally sided with the plaintiffs, who in turn have been overwhelmingly Muslim victims of law enforcement abuse.

That includes Muhammad Tanvir, the respondent in the upcoming Supreme Court case. Tanvir is one of several Muslim men who allege they were harassed by the FBI to become informants. As part of this pressure campaign, FBI agents routinely called Tanvir and showed up at his workplace unannounced. At one point, they even threatened to deport Tanvir if he didn’t collaborate.

When the men refused to spy on their communities, citing their faith, the FBI retaliated by placing them on the No-Fly List. Being unable to fly came with devastating consequences. Tanvir could no longer work as a long-haul trucker and was forced to quit. Worse, the No-Fly List even prevented him from flying back home to Pakistan to see his mother, whose health was deteriorating.

Filing under RFRA, Tanvir and the others sued the FBI agents for damages. A district court dismissed their claims in 2016, but the Second Circuit U.S. Court of Appeal overturned that decision two years later….

Last summer, however, the Justice Department filed a cert petition calling on the Supreme Court to reverse the Second Circuit’s ruling; cert was granted in November.

Rather than try to downplay the importance of religious liberty, the Justice Department argued that damages against individual officers are not a form of “appropriate relief,” warning that even “the mere ‘specter of liability,’ might deter employees from carrying out their duties to the fullest extent.”

That’s a feature, not a bug. Officials should be deterred from violating religious freedom. Suing for damages plays a vital role in civil rights cases, and religious liberty is no exception….

In recent years, the Supreme Court has expanded protections for religious liberty while routinely blocking lawsuits against rogue agents. Tanzin v. Tanvir will reveal if religious freedom can trump this worrisome trend.

In this instance, it would seem, the administration’s support for religious freedom has been trumped by its solicitude for law enforcement agencies, which is also at the root of its opposition to ending qualified immunity. In addition, the administration that imposed a a series of discriminatory travel bans targeting Muslims may not be eager to crack down abuses of religious freedom where Muslims are often the primary victims.

As Sibilla explains in a later article analyzing the oral argument, RFRA allows “appropriate” remedies. There is room for reasonable disagreement about what qualifies as “appropriate” in some situation. But, as Sibillla describes, damage remedies are surely appropriate in a case like this one where they are the only available form of redress for the rights violations suffered by the victims, and the only effective means of deterring future violations:

“My clients lost precious years with loved ones, plus jobs and educational opportunities,” said City University of New York Law Professor Ramzi Kassem, who argued on behalf of Tanvir. “Without damages as a deterrent…agents remain free to repeat what they did here, flout RFRA until challenged in court and then back off…”

RFRA doesn’t expressly exclude money damages…. That’s a striking contrast to many other federal statutes that authorize lawsuits against the government. Just as telling, RFRA was deliberately modeled after Section 1983, which lets victims of civil rights abuses sue the local and state officials responsible; those lawsuits frequently include money damages, even though that statute never specifies damages as a form of relief….

[A]n injunction wouldn’t help Tanvir and the other plaintiffs, since the federal government has already removed them from the No-Fly List. “Injunctions would be useless against these one-time harms, leaving damages as the only remedy,” Kassem noted.

And as Justice Sonia Sotomayor pointed out [at the oral argument], when Congress was debating RFRA, lawmakers were “very concerned” about “the many families whose loved ones were being subjected to autopsies, in violation of their religious beliefs” and heard testimony that “injunctive relief would not help those families.” “Why would Congress take away from appropriate relief the only relief that could help some people for the violation of their rights?” she asked.

Sibilla also effectively rebuts claims that allowing money damages would subject government agents to personal liability (though I think such personal liability might sometimes serve as a valuable deterrent against abuses of power):

Justice Brett Kavanaugh… expressed “concern” that the FBI agents in the case could be forced to pay “damages in their individual capacities.”

But that fear is unfounded. Even when a plaintiff prevails in a civil rights lawsuit against federal employees, they rarely have to pay out of pocket. One recent study that analyzed successful lawsuits filed against federal Bureau of Prison officials found that “the federal government effectively held their officers harmless in over 95% of the successful cases brought against them, and paid well over 99% of the compensation received by plaintiffs in these cases.”

Simply put, “individual government officials almost never contribute any personal funds to resolve claims arising from allegations that they violated the constitutional rights of incarcerated people.”

The Administration’s selective solicitude for religious liberty is matched by similar double standards on the left side of the political spectrum, where many rightly condemn the travel bans, but often oppose judicial enforcement of prohibitions against government discrimination against religious schools or public health measures that discriminate against religious speech. For too many people, support for freedom of religion varies based on whose ox is being gored.

On the whole, current legal precedent protects religious freedom much more than many people—especially on the political right—tend to think. But the sort of ideologically motivated hypocrisy on display in Tanzin and too many other cases is nonetheless a troubling trend. Religious freedom for me and my friends, but not thee and yours is an attitude that can gradually erode protections for everyone, and especially for the most vulnerable and unpopular religious minorities.

UPDATE: Reading the oral argument, it is hard for me to tell which way the Court is leaning. But I tentatively think the three liberal justices and Justice Gorsuch are leaning towards the plaintiffs, Justice Kavanaugh and Justice Roberts are leaning towards the government, and the other two justices (Thomas and Alito) are very hard to gauge. If I am right (and I easily might not be!), there are at least enough votes to avoid overruling the court of appeals decision in favor of the plaintiffs.

With only eight justices on the Court in the wake of Ruth Bader Ginsburg’s death, a 4-4 split would result in leaving the lower court decision in place, albeit without any binding Supreme Court precedent being created. Of course it’s also possible this case will be reargued when and if Amy Coney Barrett gets confirmed. That happened in Knick v. Township of Scott last year, which was argued during the period when the delay in Kavanaugh’s confirmation led to a few cases being heard by only eight justices. As it turned, out Knick was a 5-4 decision, and the reargument was likely done in order to enable Kavanaugh to participate and avoid a 4-4 split.

Either way, this is an important case that bears watching.

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