District Court Vacates Trump Administration “Waters” Rule, So What’s Next for WOTUS?

Yesterday a federal district court judge in Arizona vacated and remanded the Trump Administration’s “Navigable Waters Protection Rule” (NWPR) which adopted a somewhat narrow definition of “waters of the United States” (WOTUS) under the the Clean Water Act (CWA). This definition is important because it determines the scope of federal regulatory authority under the CWA, including what wetlands are subject to CWA permitting requirements as part of the “waters of the United States.”

The decision by Judge Rosemary Marquez in Pasqua Yaqui Tribe v. U.S. Environmental Protection Agency is merely the latest judicial decision in a decades-long fight over the scope of CWA regulatory jurisdiction. These fights date back to the 1980s, when the U.S. Army Corps of Engineers and Environmental Protection Agency first adopted expansive interpretations of their regulatory authority under the CWA. In the 2000s the agencies suffered two major losses in the Supreme Court (SWANCC and Rapanos), but failed to trim their regulatory ambitions.

The Obama Administration adopted an expansive WOTUS rule in 2015, and it too faced judicial skepticism, but was withdrawn by the Trump Administration in 2019 before reaching the Supreme Court on the merits. The NWPR was adopted in April 2020, and has now been vacated before it was even two years old.

Judge Marquez was aided in her conclusion that the NWPR by the agencies’ acquiescence to many of the plaintiffs’ arguments. Given the switch in adminstrations, the agencies conceded “substantial concerns about certain aspects of the NWPR . . . including whether the NWPR adequately considered the CWA’s statutory objective” and “the effects of the NWPR on the integrity of the nation’s waters.” Such errors, Judge Marquez concluded, were fundamental, substantive flaws” in the rulemaking that required vacatur.

Left unaddressed in the opinion is the fact that such concerns were decisively rejected by Justice Kennedy in his controlling Rapanos opinion. Waters and wetlands must have “significant nexus” to “navigable waters” to fall within the CWA’s ambit, Justice Kennedy explained, cautioning that “environmental concerns provide no reason to disregard the limits in the statutory text.” The Trump NWPR, despite its flaws (which I discussed here), was the first Army Corps and EPA rule to take such limits seriously in over thirty years.

An obvious question is what rule controls CWA jurisdiction now that the NWPR has been vacated. Judge Marquez has asked for further briefing on whether to vacate the 2019 repeal of the Obama WOTUS rule as well. If the WOTUS rule is not reinstated, the Army Corps and EPA would have to resort to the pre-2015 regulations that the Supreme Court found overly expansive in SWANCC and Rapanos (and which, as written, almost certainly exceed the scope of the Commerce Power). This would hardly promote regulatory certainty.

As I noted last week in discussing the latest developments in the Sackett case, whether a given water or wetland satisfies those regulations cannot determine whether it is subject to federal regulation because those regulations exceed the scope of the CWA (and likely exceed the scope of Congress’ enumerated powers as well). This would suggest the agencies are better off making case-by-case determinations as to whether a given parcel is part of the “waters of the United States,” but that is a far more time and labor-intensive process than applying regulatory standards.

Another question is what happens to all of the jurisdictional determinations that were made under the now-vacated rule. One might think that, insofar as the NWPR was arbitrary and capricious, agency determinations that given projects or parcels were not subject to federal regulation would be vulnerable. But not so fast. The agencies have committed to respecting prior jurisdictional determinations for five years once issued.

In addition, under Regents (the DACA decision), those who received favorable jurisdictional determinations would seem to have substantial reliance interests that the agencies would have to consider before seeking to reverse course. As in Regents, the fact that the agency action relied upon may have been arbitrary or unlawful does not matter. Thus I am inclined to think the agencies will respect those jurisdictional determinations issued under the prior rule.

The big question going forward will be how aggressive the Biden Administration chooses to be when it issues a new WOTUS rule of its own. A rule that pushes the boundaries of the Rapanos decision (as the Obama WOTUS rule did) is almost certain to be struck down. An aggressive regulatory strategy could even provoke the sort of harder edged constitutional ruling that the Army Corps and EPA previously avoided. Yet given these agencies’ regulatory histories, I doubt they will take a cautious course.

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California Port Pileup Shatters Record And Imports Still Haven’t Peaked

California Port Pileup Shatters Record And Imports Still Haven’t Peaked

By Greg Miller of FreightWaves

From anchorage stats to forward arrivals, ocean bookings, and inventory-to-sales numbers, all the latest data paints the same picture: The U.S. congestion crisis has never been more severe than it is now — and it’s getting worse.

Hope for any relief this year has vanished. French carrier CMA CGM is the latest in a long line of market participants to push back its timeline on normalization. Capacity constraints “are expected to continue until the first half of 2022,” CMA CGM warned on Friday.

Alarmingly, America’s import system — which is already stretched to the limit — looks like it will have to handle even higher volumes next month.  The likely outcome: Carriers will be forced to cancel more sailings as terminal berths max out and ships get stuck at anchor, even more cargo will get “rolled” (pushed to a future sailing), and importers will face even longer delays and even less slot availability as they scramble to build inventories for holiday sales.

More ships stuck at anchor than ever before

According to the Marine Exchange of Southern California, there were 47 container ships at anchor or drifting off the ports of Los Angeles and Long Beach on Sunday, a new all-time high. The earlier high of 40 at anchor was set on Feb. 1 and matched several times last week. The tally rose to 44 on Friday and stood at 46 on Monday.

Pre-COVID, an average of 16 container ships were at berths or at anchor on any given day (with any ships at anchor being a rare occurrence). On Sunday, there were 76 box ships either at berths, at anchor or drifting — 4.8 times the pre-COVID level.


(Chart data: American Shipper based on data from Marine Exchange of Southern California. Data bi-monthly Jan 2019-Nov 2020; daily Dec 2020-present)

There are now almost 60% more container ships at anchor than at berth. The Marine Exchange data shows that Los Angeles/Long Beach terminals accommodated an average of 28 ships each day this month. All the rest is overflow that heads to the so-called “parking lot” in San Pedro Bay.

Automatic identification system (AIS) ship-positioning data from MarineTraffic revealed extreme congestion in Southern California on Monday, with more than a half-dozen ships forced to drift because anchorage spots were full.


Container-ship positions as of Monday afternoon (Map: MarineTraffic)

Even higher volumes on the way

“The expected spike in imports generated by the peak season and pre-shipped cargo is already here, making the operation more complex,” said Hapag-Lloyd on Friday, referring to congestion in Los Angeles and Long Beach. Hapag-Lloyd said that it does not expect California anchorages to clear in 2021.

The Port of Los Beach’s WAVE report, which estimates future arrivals, predicts volumes will rise in the weeks ahead. It forecast loaded import volumes of 120,928 twenty-foot equivalent units for the last week of September, up 34% from the estimated 89,980 TEUs of imports due to arrive next week.

Signal, the Port of Los Angeles’ planning tool, shows the same upward trend, with import volumes of 178,426 TEUs expected the week of Sept. 12-18, up 49% from an estimated 120,070 TEUs this week.

Another forward indicator is a proprietary index of shippers’ bookings on FreightWaves’ SONAR platform. The index has risen sharply in recent weeks, implying higher volumes arriving at U.S. ports in late September and into October.


Indexed to Jan. 2019; 10-day moving average of bookings as of date of departure. (Chart: FreightWaves SONAR. To learn more about FreightWaves SONAR, click here.)

Inventories not even close to being replenished

Despite record imports in the first eight months of this year, U.S. retail sales continue to outpace inventory replenishment. Assuming sales don’t collapse and businesses seek to reach pre-COVID inventory-to-sales levels, imports still have a long way to run due to restocking.

The Institute for Supply Management (ISM) produces a monthly report that includes an index of sentiment on customer inventories. That index fell to 25 points in July, the lowest level in its history.


(Chart: FreightWaves SONAR)

The Bureau of Economic Analysis publishes detailed monthly data on retail inventories and inventory-to-sales ratios. While there is a lag — the June numbers were published on Friday — the data underscores the magnitude of America’s inventory restocking challenge. 

Jason Miller, associate professor of supply chain management at Michigan State University’s Eli Broad College of Business, provided inflation-adjusted BEA figures excluding motor vehicles and automotive parts (which skew the data). This data shows that retail inventories are now substantially higher than pre-COVID, but sales have been so high that the inventory-to-sales ratio is far below where it was pre-COVID. The level of inventory to sales actually fell slightly in June, to 0.94 months of sales.


(Chart: Jason Miller)

Miller also compared the June sales and inventory figures for specific categories of wholesale and retail imports. 


(Chart: Jason Miller)

The rise in sales far outpaced the rise in inventories — in some categories, inventories fell — which helps explain the ongoing flood of cargo into U.S. ports and the unprecedented pileup of ships at anchor off Los Angeles/Long Beach.

Tyler Durden
Tue, 08/31/2021 – 19:30

via ZeroHedge News https://ift.tt/3taP3yY Tyler Durden

District Court Vacates Trump Administration “Waters” Rule, So What’s Next for WOTUS?

Yesterday a federal district court judge in Arizona vacated and remanded the Trump Administration’s “Navigable Waters Protection Rule” (NWPR) which adopted a somewhat narrow definition of “waters of the United States” (WOTUS) under the the Clean Water Act (CWA). This definition is important because it determines the scope of federal regulatory authority under the CWA, including what wetlands are subject to CWA permitting requirements as part of the “waters of the United States.”

The decision by Judge Rosemary Marquez in Pasqua Yaqui Tribe v. U.S. Environmental Protection Agency is merely the latest judicial decision in a decades-long fight over the scope of CWA regulatory jurisdiction. These fights date back to the 1980s, when the U.S. Army Corps of Engineers and Environmental Protection Agency first adopted expansive interpretations of their regulatory authority under the CWA. In the 2000s the agencies suffered two major losses in the Supreme Court (SWANCC and Rapanos), but failed to trim their regulatory ambitions.

The Obama Administration adopted an expansive WOTUS rule in 2015, and it too faced judicial skepticism, but was withdrawn by the Trump Administration in 2019 before reaching the Supreme Court on the merits. The NWPR was adopted in April 2020, and has now been vacated before it was even two years old.

Judge Marquez was aided in her conclusion that the NWPR by the agencies’ acquiescence to many of the plaintiffs’ arguments. Given the switch in adminstrations, the agencies conceded “substantial concerns about certain aspects of the NWPR . . . including whether the NWPR adequately considered the CWA’s statutory objective” and “the effects of the NWPR on the integrity of the nation’s waters.” Such errors, Judge Marquez concluded, were fundamental, substantive flaws” in the rulemaking that required vacatur.

Left unaddressed in the opinion is the fact that such concerns were decisively rejected by Justice Kennedy in his controlling Rapanos opinion. Waters and wetlands must have “significant nexus” to “navigable waters” to fall within the CWA’s ambit, Justice Kennedy explained, cautioning that “environmental concerns provide no reason to disregard the limits in the statutory text.” The Trump NWPR, despite its flaws (which I discussed here), was the first Army Corps and EPA rule to take such limits seriously in over thirty years.

An obvious question is what rule controls CWA jurisdiction now that the NWPR has been vacated. Judge Marquez has asked for further briefing on whether to vacate the 2019 repeal of the Obama WOTUS rule as well. If the WOTUS rule is not reinstated, the Army Corps and EPA would have to resort to the pre-2015 regulations that the Supreme Court found overly expansive in SWANCC and Rapanos (and which, as written, almost certainly exceed the scope of the Commerce Power). This would hardly promote regulatory certainty.

As I noted last week in discussing the latest developments in the Sackett case, whether a given water or wetland satisfies those regulations cannot determine whether it is subject to federal regulation because those regulations exceed the scope of the CWA (and likely exceed the scope of Congress’ enumerated powers as well). This would suggest the agencies are better off making case-by-case determinations as to whether a given parcel is part of the “waters of the United States,” but that is a far more time and labor-intensive process than applying regulatory standards.

Another question is what happens to all of the jurisdictional determinations that were made under the now-vacated rule. One might think that, insofar as the NWPR was arbitrary and capricious, agency determinations that given projects or parcels were not subject to federal regulation would be vulnerable. But not so fast. The agencies have committed to respecting prior jurisdictional determinations for five years once issued.

In addition, under Regents (the DACA decision), those who received favorable jurisdictional determinations would seem to have substantial reliance interests that the agencies would have to consider before seeking to reverse course. As in Regents, the fact that the agency action relied upon may have been arbitrary or unlawful does not matter. Thus I am inclined to think the agencies will respect those jurisdictional determinations issued under the prior rule.

The big question going forward will be how aggressive the Biden Administration chooses to be when it issues a new WOTUS rule of its own. A rule that pushes the boundaries of the Rapanos decision (as the Obama WOTUS rule did) is almost certain to be struck down. An aggressive regulatory strategy could even provoke the sort of harder edged constitutional ruling that the Army Corps and EPA previously avoided. Yet given these agencies’ regulatory histories, I doubt they will take a cautious course.

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24 Students, 3-Year-Old California Boy Among Americans Stranded In Afghanistan

24 Students, 3-Year-Old California Boy Among Americans Stranded In Afghanistan

If the Biden administration’s estimate of ‘close to 100’ people stranded in Afghanistan is even remotely accurate, around 25% of them are students, along with a three-year-old boy from Sacramento, California.


Behshta, 21, holds a school picture showing her youngest sister Neda, 9 Photo: Renée C. Byer rbyer@sacbee.com

As the Sacramento Bee reports, San Juan Unified school district staff confirmed that 24 students are stranded in Afghanistan.

“Our office has been in close contact with the San Juan Unified School District, and have urgently flagged the students’ information with the State Department and Department of Defense,” said staffers from Sacramento Congressman Ami Bera’s office, adding “We have not received an update from the State Department or the DOD.”

It’s unclear when more Sacramento-area residents will board flights to return from Kabul. It’s been more than two weeks since Taliban leaders took control of country’s capital.

Evacuation flights ferried tens of thousands of people from Kabul before and after a bombing at the airport killed more than 170 people, including 13 service members. Marine Sgt Nicole Gee of Roseville was among US military service members killed.Sacramento Bee

According to the report, a number of refugees will be resettled in Sacramento – one of the largest destinations for special visa holders – and home to approximately one out of every nine Afghan natives living in America. Around 9,700 Afghans live in Sacramento County – more than any other in the US, according to census data.

Another stranded child, a 3-year-old Sacramento boy, is “going through a harrowing ordeal right now, unable to escape Afghanistan,” according to ABC7 News, which is not revealing his identity, that of his social worker father, or any other family members who are all US permanent residents, “for fear of them being captured by the Taliban.”

“I received a call Sunday morning at about 6 a.m. from a friend of mine who’s an active duty Marine Corps officer stationed overseas, and he basically felt like his hands were tied and he needed some help getting this family out,” said veteran’s advocate, James Brown, in a statement.

“They’ve also made numerous phone calls to the White House, to the Secretary of Defense’s Office, and to the Secretary of State’s office escalating this family’s case all the way to the top for us,” said Brown, who also contacted Representative Jackie Speier and her staff.

Speier wrote a letter To Whom It May Concern, “I believe it is of particular and urgent concern that these individuals be allowed to pass through the gate and be given safe refuge at Hamid Karzai International Airport … so that they might be available for departure.”

Armed with that letter, the boy, his father and several other family members approached the airport, but the Taliban attacked.
Brown said, “And they were stopped by a Taliban checkpoint, and they received physical beatings at the gate and they were pushed back where they had to flee and return to a safe house.”

The I-Team spent Monday funneling questions through our ABC News colleagues in Washington to officials at the White House and State Department. –ABC7 News

So, if the stranded Americans represent just 10% of everyone who wanted to get out of Afghanistan, it begs the question – why were so many children left behind?

Tyler Durden
Tue, 08/31/2021 – 19:00

via ZeroHedge News https://ift.tt/2WIoq84 Tyler Durden

Visualizing The Size Of The World’s Rockets, Past & Present

Visualizing The Size Of The World’s Rockets, Past & Present

The SpaceX Starship might be the next rocket to take humans to the moon; and while it’s not the first, and likely won’t be the last.

Starting in the mid-20th century, Visual Capitalist’s Omrio Wallach notes, humanity has explored space faster than ever before. We’ve launched satellites, telescopes, space stations, and spacecrafts, all strapped to rocket-propelled launch vehicles that helped them breach our atmosphere.

This infographic from designer Tyler Skarbek stacks up the many different rockets of the world side-by-side, showing which country designed them, what years they were used, and what they (could) accomplish.

How Do The World’s Rockets Stack Up?

Before they were used for space travel, rockets were produced and developed to be used as ballistic missiles.

The first rocket to officially reach space—defined by the Fédération Aéronautique Internationale as crossing the Kármán line at 100 kilometers (62 miles) above Earth’s mean sea level—was the German-produced V-2 rocket in 1944.

But after World War II, V-2 production fell into the hands of the U.S., the Soviet Union (USSR), and the UK.

Over the next few decades and the unfolding of the Cold War, what started as a nuclear arms race of superior ballistic missiles turned into the Space Race. Both the U.S. and the USSR tried to be the first to achieve and master spaceflight, driving production of many new and different rockets.

As the Space Race wound down, the U.S. proved to be the biggest producer of different rockets. The eventual dissolution of the USSR in 1991 transferred production of Soviet rockets to Russia or Ukraine. Then later, both Europe (through the European Space Agency) and Japan ramped up rocket production as well.

More recently, new countries have since joined the race, including ChinaIran, and India. Though the above infographic shows many different families of rockets, it doesn’t include all, including China’s Kuaizhou rocket and Iran’s Zuljanah and Qased rockets.

Rocket Range Explained and Continued Space Aspirations

Designing a rocket that can reach far into space while carrying a heavy payload—the objects or entities being carried by a vehicle—is extremely difficult and precise. It’s not called rocket science for nothing.

When rockets are designed, they are are created with one specific range in mind that takes into account the fuel needed to travel and velocity achievable. Alternatively, they have different payload ratings depending on what’s achievable and reliable based on the target range.

  • Suborbital: Reaches outer space, but its trajectory intersects the atmosphere and comes back down. It won’t be able to complete an orbital revolution or reach escape velocity.

  • LEO (Low Earth orbit): Reaches altitude of up to ~2,000 km (1242.74 miles) and orbits the Earth at an orbital period of 128 minutes or less (or 11.25 orbits per day).

  • SSO (Sun-synchronous orbit): Reaches around 600–800 km above Earth in altitude but orbits at an inclination of ~98°, or nearly from pole to pole, in order to keep consistent solar time.

  • GTO (Geosynchronous transfer orbit): Launches into a highly elliptical orbit which gets as close in altitude as LEO and as far away as 35,786 km (22,236 miles) above sea level.

  • TLI (Trans-lunar injection): Launches on a trajectory (or accelerates from Earth orbit) to reach the Moon, an average distance of 384,400 km (238,900 miles) from Earth.

But there are other ranges and orbits in the eyes of potential spacefarers. Mars for example, a lofty target in the eyes of SpaceX and billionaire founder Elon Musk, is between about 54 and 103 million km (34 and 64 million miles) from Earth at its closest approach.

With space exploration becoming more common, and lucrative enough to warrant billion-dollar lawsuits over contract awards, how far will future rockets go?

Tyler Durden
Tue, 08/31/2021 – 18:30

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

Afghanistan Withdrawal Is ‘Ending an Era’ of Failed Nation-Building, Says Biden


spnphotosten379524

One day after nearly 20 years of war in Afghanistan came to an end, President Joe Biden said he was closing the book on an inglorious and expensive phase of American foreign policy.

“This decision about Afghanistan is not only about Afghanistan,” Biden said in a speech Tuesday from the White House. “It’s about ending an era of major military missions to remake other countries.”

That’s a remarkable, and welcome, sentiment to hear expressed by an American president.

Most Americans had long ago soured on the idea of nation-building in Afghanistan (and Iraq) and had voted for a series of presidential candidates who promised (and then failed) to put an end to America’s longest war. In the end, the war that enjoyed bipartisan support for years was ended in a bipartisan fashion. Former President Donald Trump put the Pentagon on the clock when his administration reached a deal with the Taliban to withdraw by May 2021. Biden postponed that deadline but held firm when it mattered.

In doing so, he’s created an opportunity to chart a new way forward for America’s foreign policy. Far from promising isolationism, Biden said Tuesday that “human rights will be the center” of his foreign policy. “But the way to do that is not through endless military deployments,” he added, stressing that America should instead use its prestigious diplomatic and economic tools to work with belligerent countries. If that shift materializes, it should be welcomed by both Americans and the rest of the world.

Much of Biden’s speech on Tuesday was aimed directly at the war hawks who have criticized his administration’s handling of the withdrawal. In particular, Biden took aim at the bizarre talking point that has emerged in recent weeks suggesting that the status quo in Afghanistan was sustainable prior to the departure of U.S. troops and the ensuing collapse of the Afghan government.

“The real choice,” Biden said, was “leaving or escalating.”

“I was not going to extend this forever war,” he added, “and I was not extending a forever exit.”

He’s right. The lack of bloodshed between the Taliban and U.S. forces over the past year and a half was the direct result of America’s promise to withdraw. Keeping American forces in Afghanistan past the August 31 deadline would have invited more fighting and the pointless loss of more American lives.

Claims about the sustainability of the past year’s cessation of hostilities were never more than a thin cover for perpetual, neverending war. When CNN gave John Bolton, one of the chief architects of the disastrous nation-building foreign policy of the past decades that Biden is now seeking to undo, a platform to criticize Biden’s withdrawal last week, Bolton said the “fundamental” error Biden had made was “withdrawing at all.” The mask slips.

Reasonable people can disagree about how much blame Biden deserves for the messy withdrawal. Certainly, it is shameful that so many Afghans who helped America over the years seem to have been left behind—in some cases because of bureaucratic holdups that should be blamed on America’s broken immigration system, not because the timetable for withdrawal was insufficient.

What everyone on this side of defense contractors and Bolton should be able to agree upon, however, is that America was no longer pursuing any meaningful national security objectives in Afghanistan.

With an eye towards the future, Biden said Tuesday that America should learn two lessons from the nearly two-decade misadventure in Afghanistan. First, the military should be used only to pursue missions “with clear, achievable goals, not ones we’ll never reach.” Second, those missions must be focused on “the fundamental national security interests of the United States.”

The war in Afghanistan failed on both counts. Biden was right to throw the ball back to the hawks.

“To those asking for a third decade of war in Afghanistan, I ask: What is the vital national interest?” Biden said.

There isn’t one. There hasn’t been one in a long time. The war in Afghanistan is over. For that, we should be thankful.

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Did A Fake Banksy NFT Just Sell For $336,000?

Did A Fake Banksy NFT Just Sell For $336,000?

A mysterious NFT that appeared on Banksy’s website has blogs across the web asking whether or not a “fake” NFT just sold for $336,000.

On the morning of August 31, a link was posted on Banksy’s website to an auction for an NFT. The link showed an image similar in style to those of CryptoPunks, a collection of NFTs that have been selling for astronomical prices. 

According to the blog Elliptic, when the NFT was posted, it had the title “Great Redistribution of the Climate Change Disaster”.

It was liked to an NFT marketplace called OpenSea, where an NFT featuring the image sold for 100 ETH, or about $336,000.

The page was then promptly removed from the Banksy website and the OpenSea auction ended early, leaving some to wonder whether or not the NFT was actually an “authentic” Banksy or whether his website had been hacked to promote a scam.

Even the bidder who bought the piece, an NFT investor named “Pranksy”, speculated that it could be a “very elaborate hoax”.

Banksy’s agency then denied involvement with the NFT, telling CNBC that he “has not created any NFT artworks.”

The agency said: “Any Banksy NFT auctions are not affiliated with the artist in any shape or form.”

Tyler Durden
Tue, 08/31/2021 – 18:00

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

Hunter Biden Laptop Repairman’s Federal Libel Lawsuit Against Twitter Dismissed

Mac Isaac v. Twitter, Inc., decided yesterday by Judge Beth Bloom (S.D. Fla.), stems from Twitter’s blocking the New York Post’s about information gotten from Hunter Biden’s laptop, which had apparently been abandoned at John Paul Mac Isaac’s computer repair shop (after it was dropped off so he could “recover information from damaged Mac computers owned by Hunter Biden).

Mac Isaac apparently passed the computer or copies of the material from the computer to the FBI and to Rudy Giuliani’s lawyer; from there it made its way to the New York Post, but when the Post wrote about it, Twitter blocked the Post’s Tweets on the grounds that they supposedly came from “hacked material.” (“Pursuant to [Twitter’s] Hacked Materials Policy, a ‘hack’ is defined as ‘an intrusion or access of a computer, network, or electronic device that was unauthorized or exceeded authorized access.'”)

Mac Isaac sued for libel, but the judge concluded that the statement didn’t sufficiently identify Isaac (though later press accounts did identify him):

Plaintiff alleges that the Explanations are defamatory per se because they created the belief among members of the community that Plaintiff: (1) committed a crime— hacking; (2) was subject to hatred, ridicule, contempt, or disgrace—threats of harm and negative business reviews; and (3) was injured to his trade or business as a result—closed his business….

Specifically, Defendant first argues that Plaintiff’s defamation claim fails as a matter of law because the Explanations “do not name Plaintiff or his business” or even “permit an ‘ascertainable implication’ that they were about Plaintiff.”, however, maintains that the Explanations themselves need not specifically identify Plaintiff to be defamatory and Plaintiff is permitted to present extrinsic evidence in the form of the NY Post Article to demonstrate that the Explanations referred to him….

Florida courts have long held that if a defamed person is not named in the defamatory publication, “the communication as a whole [must] contain[ ] sufficient facts or references from which the injured person may be determined by the persons receiving the communication.” The relevant inquiry is whether “the average person upon reading [the] statements could reasonably have concluded that the plaintiff [ ] was implicated[.]”

Here, while the Amended Complaint alleges that the NY Post “published a photo of the Repair Authorization … without blurring the business name thereby notifying the public where Biden had dropped off his laptop[,]” the Explanations did not include the subject photo. Nor did the Explanations mention Plaintiff, the Mac Shop, or provide any other descriptive information identifying Plaintiff as a purported “hacker.”

In his submissions, Plaintiff seemingly concedes that the Explanations did not reveal his identity, but nonetheless avers that the Explanations “should not be evaluated in a vacuum and extrinsic evidence such as the NY Post article should be considered in order to show that the [Explanations] were referring to Plaintiff as a ‘hacker’ and/or the source of the confidential information.” As such, Plaintiff seeks to impose liability upon Defendant based upon external facts and statements attributed not to Defendant, but rather unaffiliated third parties. However, Plaintiff’s extrinsic evidence theory is flawed for several reasons.

First, the law in Florida dictates that defamation per se must be “actionable on its face” and does not “require[ ] additional explanation of the words used to show that they have a defamatory meaning or that the person defamed is the plaintiff.” For example, in Scobie v. Taylor (S.D. Fla. 2013), the court explained that defamation claims can be proven in either of the following ways: (1) defamation per quod, which “requires an additional explanation of, or an interpretation of innuendo suggested by the words used to demonstrate the defamatory meaning or that the plaintiff is the subject of the statement[,]” or (2) defamation per se, which “does not require any additional explanation in order to prove the defamatory nature of the statement.” The critical distinction between these actions is that in per se cases, “consideration is given only to the ‘four corners’ of the publication and ‘the injurious nature of the statement’ ” must be apparent from the words of the publication itself. Thus, because Plaintiff has asserted a claim for defamation per se, looking outside the four corners of the Explanations to show that “the person defamed is plaintiff” would run afoul the very nature of a per se action….

The Court is certainly sympathetic to the events that took place and could envision a plausible claim had the explanations identified the “Mac Shop,” “a Delaware repair shop” or even included a photo of the Repair Authorization. However, such is not the case here, and the law will not subject Defendant to liability where it was “meticulous enough” to preserve Plaintiff’s anonymity [within the four corners of the Explanations]….

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Afghanistan Withdrawal Is ‘Ending an Era’ of Failed Nation-Building, Says Biden


spnphotosten379524

One day after nearly 20 years of war in Afghanistan came to an end, President Joe Biden said he was closing the book on an inglorious and expensive phase of American foreign policy.

“This decision about Afghanistan is not only about Afghanistan,” Biden said in a speech Tuesday from the White House. “It’s about ending an era of major military missions to remake other countries.”

That’s a remarkable, and welcome, sentiment to hear expressed by an American president.

Most Americans had long ago soured on the idea of nation-building in Afghanistan (and Iraq) and had voted for a series of presidential candidates who promised (and then failed) to put an end to America’s longest war. In the end, the war that enjoyed bipartisan support for years was ended in a bipartisan fashion. Former President Donald Trump put the Pentagon on the clock when his administration reached a deal with the Taliban to withdraw by May 2021. Biden postponed that deadline but held firm when it mattered.

In doing so, he’s created an opportunity to chart a new way forward for America’s foreign policy. Far from promising isolationism, Biden said Tuesday that “human rights will be the center” of his foreign policy. “But the way to do that is not through endless military deployments,” he added, stressing that America should instead use its prestigious diplomatic and economic tools to work with belligerent countries. If that shift materializes, it should be welcomed by both Americans and the rest of the world.

Much of Biden’s speech on Tuesday was aimed directly at the war hawks who have criticized his administration’s handling of the withdrawal. In particular, Biden took aim at the bizarre talking point that has emerged in recent weeks suggesting that the status quo in Afghanistan was sustainable prior to the departure of U.S. troops and the ensuing collapse of the Afghan government.

“The real choice,” Biden said, was “leaving or escalating.”

“I was not going to extend this forever war,” he added, “and I was not extending a forever exit.”

He’s right. The lack of bloodshed between the Taliban and U.S. forces over the past year and a half was the direct result of America’s promise to withdraw. Keeping American forces in Afghanistan past the August 31 deadline would have invited more fighting and the pointless loss of more American lives.

Claims about the sustainability of the past year’s cessation of hostilities were never more than a thin cover for perpetual, neverending war. When CNN gave John Bolton, one of the chief architects of the disastrous nation-building foreign policy of the past decades that Biden is now seeking to undo, a platform to criticize Biden’s withdrawal last week, Bolton said the “fundamental” error Biden had made was “withdrawing at all.” The mask slips.

Reasonable people can disagree about how much blame Biden deserves for the messy withdrawal. Certainly, it is shameful that so many Afghans who helped America over the years seem to have been left behind—in some cases because of bureaucratic holdups that should be blamed on America’s broken immigration system, not because the timetable for withdrawal was insufficient.

What everyone on this side of defense contractors and Bolton should be able to agree upon, however, is that America was no longer pursuing any meaningful national security objectives in Afghanistan.

With an eye towards the future, Biden said Tuesday that America should learn two lessons from the nearly two-decade misadventure in Afghanistan. First, the military should be used only to pursue missions “with clear, achievable goals, not ones we’ll never reach.” Second, those missions must be focused on “the fundamental national security interests of the United States.”

The war in Afghanistan failed on both counts. Biden was right to throw the ball back to the hawks.

“To those asking for a third decade of war in Afghanistan, I ask: What is the vital national interest?” Biden said.

There isn’t one. There hasn’t been one in a long time. The war in Afghanistan is over. For that, we should be thankful.

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Hunter Biden Laptop Repairman’s Federal Libel Lawsuit Against Twitter Dismissed

Mac Isaac v. Twitter, Inc., decided yesterday by Judge Beth Bloom (S.D. Fla.), stems from Twitter’s blocking the New York Post’s about information gotten from Hunter Biden’s laptop, which had apparently been abandoned at John Paul Mac Isaac’s computer repair shop (after it was dropped off so he could “recover information from damaged Mac computers owned by Hunter Biden).

Mac Isaac apparently passed the computer or copies of the material from the computer to the FBI and to Rudy Giuliani’s lawyer; from there it made its way to the New York Post, but when the Post wrote about it, Twitter blocked the Post’s Tweets on the grounds that they supposedly came from “hacked material.” (“Pursuant to [Twitter’s] Hacked Materials Policy, a ‘hack’ is defined as ‘an intrusion or access of a computer, network, or electronic device that was unauthorized or exceeded authorized access.'”)

Mac Isaac sued for libel, but the judge concluded that the statement didn’t sufficiently identify Isaac (though later press accounts did identify him):

Plaintiff alleges that the Explanations are defamatory per se because they created the belief among members of the community that Plaintiff: (1) committed a crime— hacking; (2) was subject to hatred, ridicule, contempt, or disgrace—threats of harm and negative business reviews; and (3) was injured to his trade or business as a result—closed his business….

Specifically, Defendant first argues that Plaintiff’s defamation claim fails as a matter of law because the Explanations “do not name Plaintiff or his business” or even “permit an ‘ascertainable implication’ that they were about Plaintiff.”, however, maintains that the Explanations themselves need not specifically identify Plaintiff to be defamatory and Plaintiff is permitted to present extrinsic evidence in the form of the NY Post Article to demonstrate that the Explanations referred to him….

Florida courts have long held that if a defamed person is not named in the defamatory publication, “the communication as a whole [must] contain[ ] sufficient facts or references from which the injured person may be determined by the persons receiving the communication.” The relevant inquiry is whether “the average person upon reading [the] statements could reasonably have concluded that the plaintiff [ ] was implicated[.]”

Here, while the Amended Complaint alleges that the NY Post “published a photo of the Repair Authorization … without blurring the business name thereby notifying the public where Biden had dropped off his laptop[,]” the Explanations did not include the subject photo. Nor did the Explanations mention Plaintiff, the Mac Shop, or provide any other descriptive information identifying Plaintiff as a purported “hacker.”

In his submissions, Plaintiff seemingly concedes that the Explanations did not reveal his identity, but nonetheless avers that the Explanations “should not be evaluated in a vacuum and extrinsic evidence such as the NY Post article should be considered in order to show that the [Explanations] were referring to Plaintiff as a ‘hacker’ and/or the source of the confidential information.” As such, Plaintiff seeks to impose liability upon Defendant based upon external facts and statements attributed not to Defendant, but rather unaffiliated third parties. However, Plaintiff’s extrinsic evidence theory is flawed for several reasons.

First, the law in Florida dictates that defamation per se must be “actionable on its face” and does not “require[ ] additional explanation of the words used to show that they have a defamatory meaning or that the person defamed is the plaintiff.” For example, in Scobie v. Taylor (S.D. Fla. 2013), the court explained that defamation claims can be proven in either of the following ways: (1) defamation per quod, which “requires an additional explanation of, or an interpretation of innuendo suggested by the words used to demonstrate the defamatory meaning or that the plaintiff is the subject of the statement[,]” or (2) defamation per se, which “does not require any additional explanation in order to prove the defamatory nature of the statement.” The critical distinction between these actions is that in per se cases, “consideration is given only to the ‘four corners’ of the publication and ‘the injurious nature of the statement’ ” must be apparent from the words of the publication itself. Thus, because Plaintiff has asserted a claim for defamation per se, looking outside the four corners of the Explanations to show that “the person defamed is plaintiff” would run afoul the very nature of a per se action….

The Court is certainly sympathetic to the events that took place and could envision a plausible claim had the explanations identified the “Mac Shop,” “a Delaware repair shop” or even included a photo of the Repair Authorization. However, such is not the case here, and the law will not subject Defendant to liability where it was “meticulous enough” to preserve Plaintiff’s anonymity [within the four corners of the Explanations]….

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