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Prior to His Murder, Jamal Khashoggi Offered to Help 9/11 Victims Suing Saudi Arabia |
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Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=32872"><span class="small">Michael Isikoff, Yahoo! News</span></a>
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Monday, 12 July 2021 08:34 |
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Isikoff writes: "The meeting was rushed and, for Jamal Khashoggi, as risky as they come."
A candlelight vigil for Jamal Khashoggi. (photo: Anadolu Agency)
Prior to His Murder, Jamal Khashoggi Offered to Help 9/11 Victims Suing Saudi Arabia
By Michael Isikoff, Yahoo! News
12 July 21
 he meeting was rushed and, for Jamal Khashoggi, as risky as they come. The famed Saudi journalist, living in exile in the suburbs of northern Virginia, was furious with his government. He had just learned that it had imposed a travel ban on his adult son, blocking him from leaving Saudi Arabia — a clear punishment for Khashoggi’s increasingly forceful criticisms of Crown Prince Mohammed bin Salman.
And so, on the morning of Oct. 26, 2017, an agitated Khashoggi did something that for him would have been unthinkable only a few years earlier. He called a former FBI agent working for the families of 9/11 victims who were suing his government and asked to get together right away to discuss how he could help them.
Khashoggi’s rendezvous that morning with ex-agent Catherine Hunt at a northern Virginia coffee shop has long been a subject of mystery and intrigue. Why would Khashoggi — once a Saudi spin doctor who vigorously defended his country over the events of 9/11 — want to talk to a representative of the lawyers seeking to hold his government accountable for the terrorist attack? And even more significant, did senior Saudi officials know what he was up to that morning? And if they did know, did that play a role in his brutal slaughter inside the Saudi Consulate in Istanbul less than a year later?
In a special bonus episode of the Yahoo News podcast "Conspiracyland," Hunt — a veteran agent who worked counterterrorism and counterintelligence cases from Los Angeles to Baghdad — provides an exclusive account of her strange encounter with the Saudi journalist. It comes at a time when the lawyers for the victims’ families are entering a new and crucial phase of their case, having recently deposed three of their most important witnesses: a former Saudi Embassy official, a reputed Saudi intelligence operative and a radical imam at a Saudi-government-funded mosque, all of whom were suspected for years by the FBI of having provided assistance to two of the al-Qaida hijackers in the run-up to 9/11.
How strong a case the families have against the Saudi government remains far from clear, given that those and other depositions remain covered by a court-imposed gag order as well as a “state secrets” privilege imposed by former Attorney General William Barr that has blocked key details about the FBI investigation into the Saudi role in 9/11 from becoming public. (The lawyers for the families — with backing from members of Congress — are asking current Attorney General Merrick Garland to lift the privilege.)
But either way, Khashoggi’s meeting with Hunt stands out. It represents a tantalizing moment when the 9/11 families and their legal team, at least for a brief moment, seemed on the verge of getting the cooperation of a well-connected Saudi insider with intimate knowledge of his country’s interactions with al-Qaida.
In fact, it was Khashoggi’s unique background — as a onetime friend of Osama bin Laden who was later hired as the media adviser to a powerful Saudi prince and former chief of Saudi intelligence — that had prompted Hunt to reach out to him in the first place, about two weeks prior to their meeting.
“If you look back on the history of his career, he had a tremendous amount of connections and access to information,” Hunt said. “So he really was in a position to potentially be very helpful to us.”
When she first talked to Khashoggi, he was — according to Hunt — “very interested” in getting together, and they began discussing setting up a meeting. And then, early on the morning of Oct. 26, Khashoggi called her and wanted to move the meeting up, telling her he had urgent business to attend to and wanted to see her right away. She rushed over to the coffee shop in the Tysons Corner shopping mall that Khashoggi suggested. When she got there, she says, he was “very upset” that his son had been barred from leaving Saudi Arabia by authorities there. It had happened, as Khashoggi explained it, only because he was “being targeted by the regime.”
At that point, Hunt said, “he started to instruct me a lot about the Ministry of Islamic Affairs, and that they were charged with the responsibility of spreading Islam throughout the world. He explained that really, it was a fundamentalist version of Islam that was being propagated, and that the current government was trying to reform that position.
“He said it more in a question: ‘Is my country responsible for tolerating and even supporting radicalism? Yes. And they must take responsibility for that.’"
Even that relatively small concession, Hunt thought, was “golden.” Here was a prominent Saudi apparently prepared to say his country should be held accountable for the spread of radical Islam — and the ensuing acts of terrorism it caused. But then Khashoggi said something even more surprising. He asked if the New York-based law firm Hunt was working for, Kreindler & Kreindler, was prepared to offer him a job as a consultant to the 9/11 families' legal team. If so, he emphasized, they would have to be secretive about it. No more get-togethers in the Washington, D.C., area, where the Saudi presence was extensive.
“He was very interested in talking about it,” Hunt said. “He wanted to have the next meeting in New York, not the D.C. area.
“I was excited,” she added. “I was thrilled that he was so positive about it. I think he could have added a tremendous amount.” As to Khashoggi’s motivation in making such an offer, Hunt said: “Here he was, he found himself in exile. And I think working with the law firm would have given him a chip in the game, if you will.”
But Hunt never heard from Khashoggi again — and the full significance of their meeting didn’t hit home until more than a year later, in the weeks after his murder inside the Saudi Consulate in Istanbul on Oct. 2, 2018. The Washington Post had reported that the then Saudi ambassador to the United States, Khalid bin Salman (or KBS, the brother of Mohammed bin Salman), might have played a role in luring Khashoggi to Istanbul. The ambassador responded in a tweet that he'd had no contact with Khashoggi since they communicated via text on Oct. 26, 2017 — the same day as the meeting with Hunt.
What Khashoggi and KBS (now the country’s deputy defense minister, who met with Biden administration officials this week during a trip to Washington) texted or communicated about that day remains unknown. But Jim Kreindler, the lead lawyer for the 9/11 families, said he is convinced Khashoggi sought to use the meeting with Hunt as leverage with the Saudi ambassador to help his son.
“There isn't a doubt in my mind that after speaking to Catherine, he called KBS and said, ‘Hey, the plaintiffs' lawyers had an FBI agent talking to me. I didn't give them anything yet, but, you know, you mess with my son and I'm going to spill the beans.’"
To be sure, Kreindler has no hard evidence to support his speculation. But the curious timing of Khashoggi’s meeting with Hunt — on the same day he was communicating with the Saudi ambassador to the United States — adds one more mystery to the many surrounding the last year of the journalist’s life before the Saudi team of assassins injected him with a lethal dose of drugs, suffocated him and then carved up his body inside the consulate in Istanbul.
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The US Says It Can Answer Cyberattacks With Nuclear Weapons. That's Lunacy. |
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Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=60097"><span class="small">Scott D. Sagan and Allen S. Weiner, The Washington Post</span></a>
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Monday, 12 July 2021 08:32 |
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Excerpt: "Over the July 4 weekend, the Russian-based cybercriminal organization REvil claimed credit for hacking into as many as 1,500 companies in what has been called the largest ransomware attack to date."
The United States has more convincing ways of deterring a catastrophic cyberattack than to threaten a nuclear strike, Scott D. Sagan and Allen S. Weiner argue. (photo: Los Alamos National Laboratory/AP)
The US Says It Can Answer Cyberattacks With Nuclear Weapons. That's Lunacy.
By Scott D. Sagan and Allen S. Weiner, The Washington Post
12 July 21
 ver the July 4 weekend, the Russian-based cybercriminal organization REvil claimed credit for hacking into as many as 1,500 companies in what has been called the largest ransomware attack to date. In May, another cybercriminal group, DarkSide, also apparently located mainly in Russia, shut down most of the operations of Colonial Pipeline, which supplies nearly half the diesel, gasoline and other fuels used on the East Coast — setting off a round of panic buying that ended only when the company handed over a ransom. These incidents were bad enough. But imagine a much worse cyberattack, one that not only disabled pipelines but turned off the power at hundreds of U.S. hospitals, wreaked havoc on air-traffic-control systems and shut down the electrical grid in major cities in the dead of winter. The grisly cost might be counted not just in lost dollars but in the deaths of many thousands of people.
Under current U.S. nuclear doctrine, developed during the Trump administration, the president would be given the military option to launch nuclear weapons at Russia, China or North Korea if that country was determined to be behind such an attack.
That’s because in 2018, the Trump administration expanded the role of nuclear weapons by declaring for the first time that the United States would consider nuclear retaliation in the case of “significant non-nuclear strategic attacks,” including “attacks on the U.S., allied, or partner civilian population or infrastructure.” The same principle could also be used to justify a nuclear response to a devastating biological weapons strike.
But our analysis suggests that using nuclear weapons in response to biological or cyberattacks would be illegal under international law in virtually all circumstances. Threatening an illegal nuclear response weakens deterrence because the threat lacks inherent credibility. Perversely, this policy could also wind up committing a president to a nuclear attack if deterrence fails. While the American public would indeed be likely to want vengeance after a destructive enemy assault, the law of armed conflict requires that some military options be taken off the table. Nuclear retaliation for “significant non-nuclear strategic attacks” is one of them.
The Biden administration is now conducting its own review of the U.S. nuclear posture. The 2018 Trump change is an urgent candidate for reevaluation, but people have generally ignored it up to now. As officials work on this process, they have the chance to take full account of what could be called the “nuclear law revolution” — a growing recognition that international-law restrictions on warfare, and especially those that protect civilians, apply even to nuclear war.
Most Americans are aware of the strategic revolution that nuclear weapons themselves kicked off: The massive destruction they created made deterrence the highest national security priority. Soon after the bombing of Hiroshima in 1945, for example, Bernard Brodie, a preeminent early Cold War strategist, wrote: “Thus far the chief purpose of our military establishment has been to win wars. From now on its chief purpose must be to avert them.”
Inherent in the idea of deterrence for decades was the notion that the United States would rain “assured destruction” on the cities of any nation that attacked us or our allies with nuclear weapons. During the height of the Cold War, for instance, U.S. nuclear war plans were designed to destroy “at least 70% of the urban industrial bases of the USSR and Communist China” and expected to kill “30% of the people,” according to declassified top-secret documents from the Nixon administration written in 1969 and 1971.
But such plans were manifestly not reconcilable with the central principles of the international law of armed conflict. This helps explain why the U.S. government asserted at the time of its negotiation that the 1977 Protocol I to the 1949 Geneva Conventions did not apply to nuclear weapons. That later treaty codified the obligation of all state parties to follow in war the principles of distinction (drawing a line between military targets and civilians), proportionality (making sure the unintended or “collateral” civilian harm resulting from a legitimate attack does not exceed the military advantage of that attack) and precaution (doing everything feasible to avoid or at least minimize collateral civilian deaths). U.S. nuclear war plans in the 1970s didn’t follow any of these rules.
In 2013, however, the Obama administration’s official nuclear weapons employment guidance announced that henceforth, “all plans must also be consistent with the fundamental principles of the Law of Armed Conflict.” From then on, even nuclear war plans would apply the principles of distinction, proportionality and precaution.
The Obama guidance document was categorical: “The United States will not intentionally target civilian populations or civilian objects.” According to Gen. C. Robert Kehler, the head of U.S. Strategic Command from 2011 to 2013, implementing this guidance led the command to develop nuclear delivery “tactics and techniques to minimize collateral effects,” and to “expand non-nuclear strike alternatives and add significant flexibility to our contingency plans.” The Trump administration’s 2018 Nuclear Posture Review reaffirmed the U.S. commitment to “adhere to the law of armed conflict” in any “initiation and conduct of nuclear operations” — but its interpretation of the law (allowing nuclear weapons to be used in response to a massively destructive biological or cyberattack) was flawed.
The unambiguous embrace of the application of international law to nuclear weapons means that if a future president ordered a Hiroshima-like attack, striking a city to kill as many enemy civilians as possible, it would be an illegal order that senior generals would be required to disobey. This would be true even if the order came in response to a nuclear attack on an American city; nations are not permitted to flout the rules of war protecting civilians simply because their enemies do. (A theory called “belligerent reprisal” holds that states may strike back at civilian populations in a proportionate way if the intent is to get the enemy to stop its own illegal warfare. We and other scholars have argued that this practice is not compatible with current understandings of international law.)
Yet it is not only pundits and the public that have failed to notice this legal revolution. Some writings by nuclear strategists, even those seeking to limit the dangers of nuclear war, have ignored the shift. In 2018, for instance, the late Princeton research scholar Bruce Blair proposed a policy of what he and others have called “minimal deterrence”: His version involved cutting the U.S. arsenal to fewer than 700 warheads, from some 2,000 today, and aiming them to guarantee “the annihilation of scores of [Russian] cities housing banking and oil infrastructure as well as key manufacturing and leadership facilities.” But a policy targeting civilian infrastructure would clearly violate international-law rules that Washington recognizes apply to nuclear targeting.
This is not to say that the laws of war preclude all use of nuclear weapons (a conclusion that some legal scholars have embraced). The principle of proportionality permits some U.S. nuclear attacks against military targets — for example, when the harm such a strike would prevent to U.S. and allied populations would exceed the foreign collateral damage it caused. (Any associated civilian deaths would have to be truly incidental and unavoidable. Deliberately causing purported “collateral” civilian damage to force an enemy to stand down would be illegal.) Those planning a nuclear counterattack would also be obliged to use the lowest-yield weapons necessary to destroy or neutralize the legitimate military targets they place in their sights.
If the laws of war strictly constrain nuclear retaliation for a nuclear attack on the United States, they all but certainly bar such a strike in response to a cyber- or biological attack — even one causing many civilian casualties. In almost any imaginable scenario, the use of nuclear weapons would violate the principle of precaution, the requirement to minimize harm to civilians if feasible. That’s because the formidable U.S. military has the capacity to halt, or to induce the adversary to halt, ongoing cyberattacks through conventional or cyber-responses that would cause less harm to foreign civilians than would a retaliatory nuclear strike.
There are a few possible, but largely hypothetical, exceptions to this rule. One would be if the individuals or organization responsible for the cyber- or biological attack were in an underground bunker that couldn’t be destroyed any other way. Another hypothetical option, a nuclear demonstration strike against an isolated military target, might be legal, but it would be strategically stupid, as it would actually demonstrate lack of resolve. A stronger response would directly target — through conventional means — the perpetrators and their ability to launch further attacks on us or our allies.
Using nuclear threats to deter cyberattacks is also inherently less credible than threatening retaliation with conventional weapons or in kind (that is, with cyber-retaliation). The states that we worry most will launch cyberattacks — Russia, China and North Korea — also have nuclear weapons, and their leaders might reasonably calculate that any U.S. president would be reluctant to use nuclear weapons against a nation that can retaliate in kind. An adversary might also believe that the U.S. military would refuse to use nuclear weapons in response to non-nuclear attacks precisely because of questions around legality. Such suspicions undermine the deterrent force of nuclear weapons; in contrast, if the United States were to commit to only conventional or cyber-retaliation to “significant non-nuclear strategic attacks,” adversaries would have fewer doubts that we would follow through.
Not only might a U.S. nuclear threat against a cyber- or biological attack be perceived as a bluff, it could be doubly dangerous if it subjected the president to what has been called the “commitment trap.” If Washington threatens a nuclear response to deter a cyberattack, but adversaries go ahead anyway because the threat is deemed not credible, then there would be increased pressure on the president to order a nuclear strike to rebut domestic political claims of weakness and shore up international perceptions about the credibility of future threats. But succumbing to such political pressure or the urge for vengeance would create an unacceptable risk of further nuclear escalation.
In their joint memoir, “A World Transformed,” Brent Scowcroft explained why he and President George H.W. Bush did not issue an explicit threat to retaliate with nuclear weapons if Saddam Hussein ordered the use of chemical weapons against U.S. troops in the 1991 Persian Gulf War: “It is bad practice,” he wrote, “to threaten something you have no intention of carrying out.” The U.S. government should follow that principle today. In an era of escalating cyber-dangers, it would be prudent to pay closer attention to both the laws of armed conflict and the logic of credible deterrence. The threat of nuclear retaliation in response to a cyber- or biological attack should be ruled out.
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How Democrats Lost the Courts |
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Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=54953"><span class="small">Emma Green, The Atlantic</span></a>
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Monday, 12 July 2021 08:29 |
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Green writes: "Justice Stephen Breyer hasn't retired yet. But filling Supreme Court seats is just one battle in a war over the judiciary - one that progressives worry they're losing."
'Some Democrats are starting to suspect that the story is simpler: They've been chumps. They have clung to norms Republicans long ago abandoned.' (image: Valerie Chiang/Andrew Harnik/Pete Marovich/Bloomberg/Chip Somodevilla/Getty Images)
How Democrats Lost the Courts
By Emma Green, The Atlantic
12 July 21
Justice Stephen Breyer hasn’t retired yet. But filling Supreme Court seats is just one battle in a war over the judiciary—one that progressives worry they’re losing.
 very political coalition likes to talk about how its opponents are more organized, more ruthless, and better funded. As progressives plot their response to Donald Trump’s mostly successful project to remake the federal courts, they are reviewing the times they’ve been outworked, outfought, and outsmarted on judicial nominations. One not-so-familiar name jumps out: Before Merrick Garland’s stint in purgatory, before Brett Kavanaugh’s furious denial of assault allegations, before Amy Coney Barrett’s eleventh-hour confirmation, there was Goodwin Liu.
In 2010, Democrats comfortably controlled both chambers of Congress and the White House. Liu—the son of Taiwanese immigrants, a celebrated academic, the same kind of hyper-driven polymath as a certain former senator from Illinois—was up for a seat on the Ninth Circuit Court of Appeals. At the time, Liu was also the chair of the American Constitution Society, which had been founded a decade earlier as the progressive answer to the Federalist Society, the group most responsible for the conservative movement’s intellectual takeover of the judiciary. At least on paper, Liu was a top leader of what aspired to be the foremost progressive legal network in the country. He had the enthusiastic backing of the Democratic establishment—“He’s as sharp as they come,” Senator Dianne Feinstein told the Los Angeles Times—and court watchers considered him papabile as a Supreme Court justice. If progressives had had a well-oiled judicial-appointments machine like the one associated with the Federalist Society, Liu’s nomination would have been a cinch.
But well-oiled, the progressive machine was not. Republicans set the narrative on Liu: Instead of a bright legal thinker, he was “far outside the mainstream,” then-Senator Jeff Sessions of Alabama said. A few years earlier, Liu had harshly criticized soon-to-be Supreme Court Justice Samuel Alito’s permissiveness toward policing, comments that were “vicious and emotionally and racially charged, very intemperate,” then-Senator Jon Kyl of Arizona said. Liu’s nomination languished, held hostage—along with nearly two dozen others—by Republican procedural maneuvers. In the end, it was the Obama administration that sold out its star: With the White House’s blessing, Senate Democrats struck a deal to get most of the hostage nominees through, as long as Liu and a few others got dropped.
When Democrats recite the parable of Goodwin Liu, they tell a story about Republican bad faith and foul play, but also one of their own failures. Progressives have largely ceded the judiciary to conservatives. Republicans have long been engaged in total warfare on the courts. They see liberal courts as an existential threat to the conservative project, and they have responded accordingly, building a well-funded machine to get true believers confirmed as judges. For years, Democrats never built an equal and opposite infrastructure for installing progressives on the federal bench.
The possible explanations are many: Democratic voters don’t care as much about courts as Republicans do; donors on the left didn’t invest in the courts the same way as those on the right have. But some Democrats are starting to suspect that the story is simpler: They’ve been chumps. They have clung to norms Republicans long ago abandoned. They have championed moderates in order to appeal to their enemies, only to watch those moderates twist in the wind. And they have turned up their nose at the idea that outside groups should run the judicial-nominations process, even when those groups are effective at what they do. Some progressives argue that they have honorably pursued good governance, trying to work within the federal government while their opponents turned the Federalist Society into an HR firm for Republican administrations. But grievances don’t change the facts: The conservative movement has been winning the battle for the federal courts.
After the past four years, though, some Democrats claim they are finally ready to fight for the third branch of government. They are starting with a number of disadvantages: President Donald Trump favored younger and more ideologically conservative nominees than his predecessors, and those new judges could dominate the courts for decades. His imprint on the courts is most obvious at the top, where judges’ decisions have the most sway over the definition of the law: Trump seated three Supreme Court justices, and in only one term, he appointed nearly as many influential appeals-court judges as President Barack Obama did in two. Republicans had no trouble persuading former Supreme Court Justice Anthony Kennedy, who was nominated by Ronald Reagan, to retire while the GOP held a comfortable margin in the Senate. But Stephen Breyer, whom many Democrats hoped would retire last month, shows no signs of stepping down. The 82-year-old justice embodies an earlier generation of liberal legal minds, who believed that courts could be insulated from partisan battles.
The mood among Democrats has changed, though. Over the past few years, progressive groups have set up powerful dark-money networks and advocated for starkly progressive nominees. Earlier this month, President Joe Biden bragged that his administration was “on track to have confirmed the most judges by July of the first year of a president’s first term in over 50 years.” After the long parade of indignities, the Garlands and the Kavanaughs and the Barretts and the Lius, Democrats say they’re ready to stop being chumps.
Progressives have theoretically been plotting their judicial takeover for a long time. Two decades ago, a law professor named Peter Rubin decided that progressives needed a counterweight to the conservative legal movement, which was growing in influence and power. Since the early 1980s, wealthy right-wing donors had been pouring money into the Federalist Society, which served as a clearinghouse on law-school campuses for every future scholar, judge, and public servant interested in conservative ideas. Over the course of years, the Federalist Society had come to loom over elite legal thought; it set the terms of legal debates, even for groups that disagreed with conservative principles. After the Supreme Court decided the 2000 election in Bush v. Gore, the progressive legal world mobilized against what many liberals saw as a shocking decision—and the conservative movement that made it possible.
The group they formed, the American Constitution Society, attracted some of the biggest figures—and funders—of the liberal legal world. But from the start, ACS was at a disadvantage. Although FedSoc quickly became the default home for conservative law students, progressive law students had plenty of other options for how to spend their time on mostly left-leaning law-school campuses. ACS’s money never caught up to FedSoc’s: Liberal students at ACS events got pizza dinners while conservative students hobnobbed over steaks with the judges who would soon hire them as clerks. And ACS just wasn’t focused on explicitly influencing who was in the mix for big legal jobs, including on the judiciary, in part because many progressives found the idea of an outside group influencing the president’s nomination process distasteful. Judgeship nominations were “definitely not the focus of progressives for some time,” Dawn Smalls, a former ACS board member, told me.
When Obama was elected, a glowing write-up in The New York Times cited Attorney General Eric Holder’s ties to ACS; surely, the reporter implied, this administration would move quickly to counter the conservative judicial takeover that had unfolded under President George W. Bush. Those predictions proved misguided. To be fair, a lot was happening during those early Obama years: The economy was failing, and the president was determined to pass major health-care legislation. Judicial nominations took time to source and vet, and then they took up committee time and floor time in the Senate; in this hectic legislative environment, nominations assumed a back seat. Staffers who served in the White House at the time told me the judicial-nominations process was disorganized, without clear staffing or an urgent mandate. One reason was political: “There was a sense that any time Democrats are talking about judges, they’re losing,” Chris Kang, a special assistant to the president at the time, told me. Judges were a winning talking point for Republicans who wanted to appeal to their pro-life, Christian base. The issue didn’t have as much salience for Democratic voters, who came to the party’s big tent with diverse backgrounds and priorities. Obama’s first chief of staff, Rahm Emanuel, reportedly considered fights over controversial judicial nominees a distraction from the important business of governing.
Besides, Democrats were still operating according to an old mode of politics. Senator Patrick Leahy of Vermont, the Democrat who became the head of the Judiciary Committee, decided to reinstate the so-called blue-slip process—which effectively gives individual senators veto power over judicial nominations from their state—even though Republicans had done away with the tradition when they were in power. For its first circuit-court pick, the Obama administration chose David Hamilton, a centrist judge from Indiana who was a preacher’s son and a widely admired figure in his home state, thinking Republicans wouldn’t be able to find anything objectionable in his record. Instead, Republicans painted Hamilton as a radical, anti-Christian extremist and boycotted his initial hearing. The lesson the administration took away from that experience was not that Republicans were going to oppose anyone Obama nominated; it was that they needed to pick the most moderate, palatable candidates possible if they had any hope of getting nominees through. Meanwhile, Republicans had started filibustering even district-court nominees.
By the end of the Obama years, when Democrats no longer held the Senate, confirmations had basically ground to a halt. “The Republicans just decided that whatever President Obama wanted, they were going to be against,” Neil Eggleston, who served as White House counsel from 2014 to 2017, told me. His office still tried to put nominees forward, but Republicans weren’t the only ones holding up the process. “I found that I just wasn’t getting quality names from the [advocacy] groups—and I’m not going to name them, because they’ll all call me and yell at me,” he said. Perhaps ACS once aspired to be FedSoc for progressives, but the organization had nowhere near the influence in Washington of its conservative counterpart.
By the time of Merrick Garland’s long and fruitless wait for a Supreme Court hearing, Democrats realized just how far the Republican recriminations went. Eggleston spent many hours prepping Garland for a hearing that would never happen; if by some miracle Republicans changed course, he wanted his nominee to be prepared. When the end of Obama’s term arrived and Garland was still in limbo, “I was disheartened, but not terribly surprised,” Eggleston said.
When Trump took office, progressive activists’ judgment against existing liberal legal-advocacy groups was basically universal: They had failed. As the Trump years wore on and Democrats’ panic grew more intense, new groups with urgent-sounding names started to form. Take Back the Court argued for expanding the number of justices on the Supreme Court, because conservatives had “stolen” seats among the nine. Demand Justice targeted senators whom the organization saw as out-of-touch defenders of a bygone era, including Feinstein, the lead Democrat on the Judiciary Committee. After 14 years working in the Senate and the White House, Kang, the former White House staffer and one of Demand Justice’s co-founders, came to believe that Republicans saw courts as a matter of raw power. “As much as you might want the judiciary to not be politicized, you can’t achieve that depoliticization if only one side decides to sit it out, and the other side ramps up,” he said.
How were Democrats going to get their base to care about the courts? Money. Democratic donors started funneling cash to organizations such as the Sixteen Thirty Fund, which are managed by an enormous umbrella group called Arabella Advisors. These groups were exactly the kind that Democrats had spent years decrying on the Republican side: With the Sixteen Thirty Fund functioning as a “fiscal sponsor,” groups such as Demand Justice aren’t legally required to disclose basically any information about their funders, budget, or board of directors. Since 2018, Demand Justice has spent $1.8 million on television ads and another $1 million on Facebook ads, according to Anna Massoglia, a researcher at the watchdog group OpenSecrets, and Democrats have generally outspent Republicans with dark money across all areas of politics. Leonard Leo, who helps lead an influential network of groups that work on conservative issues, including judicial advocacy, was so inspired by Democrats’ use of dark money that he restructured his organizations to mirror his opponents’, he said recently.
The explosion of dark money funding progressives’ court advocacy is uncomfortable for progressive activists to talk about. Molly Coleman, a recent Harvard law graduate who leads a group called the People’s Parity Project that pushes to limit the influence of companies and corporate lawyers in the judicial system, is part of a coalition with Demand Justice and several other groups called Unrig the Courts. Although PPP doesn’t take dark money or corporate money, “that’s just us, and we totally understand why people make other decisions,” she told me, carefully. Progressives still perceive conservatives as having the upper hand in terms of funding and infrastructure in the war over the courts, even though that’s less true now than at any time in recent memory. “Until it’s an even playing field,” it’s not worth it to try and “get the left to be ideologically pure,” Coleman said. Demand Justice says that it has recently become independent, but Kang defended its longtime secrecy: His side will not embrace “unilateral transparency,” he told me.
The biggest change—even bigger than the money and the sense of urgency—is the universe of ideas that progressives are willing to entertain. Late in the Trump administration, while all the drama over Amy Coney Barrett’s nomination was unfolding, a new idea seemed to suddenly take hold, largely thanks to this network of shadowy, communications-focused advocacy groups: The only way for progressives to regain judicial power was to add seats to the Supreme Court. Progressives justified this position by arguing that core democratic functions, especially voting rights, had been so undermined that drastic action would be necessary to save the country. Biden, a Supreme Court institutionalist, even convened a group of leading lawyers to study this and other issues, although the number of legislators who vocally support extensive court-reform measures is small. But the contrast with an earlier era of progressive legal thought was stark. A generation ago, even progressive Democrats would have seen packing the court as the absolute end of judicial legitimacy. “I, frankly, would have been appalled in the past at the idea of adding Supreme Court seats or term limits for Supreme Court justices,” former Senator Russ Feingold of Wisconsin, who took over the top job at ACS in 2020, told me. Feingold sat on the Judiciary Committee for years. He’s a norms guy, through and through. But after all that happened under Trump, “something has to give,” he said. “The right stole the Supreme Court. And there needs to be reparations for that.”
The leaders of the conservative legal movement have little sympathy for the left’s narrative about Republican intransigence. For years, these conservatives argue, the courts were biased toward progressive policy goals, and hundreds of Democratic advocacy groups united to bring down the conservative legal hero Robert Bork’s Supreme Court nomination in the 1980s. “Their sense of helplessness and victimization is a joke,” Leo told me, referring to progressives. “We wouldn’t be where we are today as a conservative movement, fighting the judges wars, if they hadn’t polarized the issue in the 1980s.” At this point, it’s not even possible to tell which side of judicial fights is better funded; the arms race of opaque money has continued unabated. But the story progressives tell about being outmatched on the courts is potentially strategic, conservatives pointed out: That narrative is useful for raising money. Members of the conservative legal movement are not impressed by progressives’ arguments for adding seats to the Supreme Court, either. “A lot of their grievances come down to, ‘Well, we didn’t win that one, and that is super outrageous to us,’” Carrie Severino, the president of the Judicial Crisis Network, a conservative advocacy organization, told me. “That doesn’t justify the level to which they are proposing to take it.”
Each side in the judicial wars is deeply invested in painting the other as a well-funded evil empire. And perhaps progressives are playing up their own helplessness to aid their political aims. Still, it’s striking that so many elite liberal lawyers are willing to say that they botched the past few decades. I asked Feingold about the chump theory of Democrats and the judiciary—whether a reflexive reverence for norms and a naïveté about power led the left to yield too much ground to the right. “It’s completely accurate,” Feingold said. “ACS is declaring, ‘The days of chumpness are over!’”
Two hours after Joe Biden was declared the winner of the presidential election in November, ACS did something that prior iterations of the organization had apparently never tried: It submitted a list of 400 potential federal judges to the Biden transition team. The staff of the incoming administration clearly had judges on their minds. A month before Biden’s inauguration, the head of counsel’s office, Dana Remus, sent a letter to Democratic senators asking for three names for every open district-court vacancy by the time Biden took office. The candidates they were looking for would be diverse not only in terms of race and gender, the letter said, but also by practice area. Instead of just the ex-federal prosecutors and Big Law partners who typically get tapped for judicial seats, they wanted labor lawyers and public defenders and civil-rights advocates. Not long after the inauguration, a group of senior staff had convened a weekly meeting to check on the progress of nominations. “There is a bone-deep feeling about the importance of the judiciary that comes straight from the top,” Paige Herwig, the White House’s day-to-day point person on nominations, told me.
Herwig’s leadership role on judicial nominations is evidence of how much more aligned the progressive legal-advocacy machine has become with this White House; before she joined the administration, Herwig was one of the first hires at Demand Justice. Republicans have noticed: Senator Chuck Grassley of Iowa has taken to questioning Biden’s nominees about whether they’ve had any contact with Chris Kang or Russ Feingold during their nomination process.
Democrats still fancy themselves to be taking the high road—that none of this is about winning. “The president feels strongly that the courts are a place where ordinary Americans go to vindicate their rights … For litigants to feel heard and like they got a fair shake in a court of law is the most important thing,” Herwig said. When I asked Senator Dick Durbin of Illinois, the current chair of the Judiciary Committee, whether Democrats have built a judicial-nominations machine to rival Republicans, he scoffed. “No one was going to get to first base with the Trump White House—even considered for an important judgeship—unless they had signed up with the Federalist Society long ago,” he told me. “We’ve not done that on the Democratic side. I hope we don’t do that. We can judge men and women based on their qualifications, without looking through their résumé for some organizational endorsement.”
The Biden administration is on the clock: For the next 18 months, while Democrats know they have control of the Senate, their mission is to fill as many vacancies as possible, as quickly as possible. In early June, Biden’s first two judicial nominees were officially confirmed by the Senate. These were not the harbingers of a new mold of progressive judges. Both candidates, Julien X. Neals and Regina Rodriguez, came out of corporate law and had been knocked by activist groups, including Demand Justice. These were revenge nominations: Neals and Rodriguez were both in the cohort of Obama picks whose candidacies withered when Republicans refused to move them through. As senators gathered to vote, Democrats hailed a new era of professional diversity on the federal bench—an aspiration, if not entirely reflected in the day’s work. The long haul is still ahead: A handful of vacancies down, roughly six dozen to fill, and only a few hundred judges to nominate and confirm before Biden can claim a judicial revolution of his own.
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The Revenge of John Roberts |
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Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=48830"><span class="small">Andy Kroll, Rolling Stone</span></a>
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Sunday, 11 July 2021 12:42 |
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Kroll writes: "Combined, the AFPF and Brnovich decisions continue the Roberts court’s decade-plus track record of undermining the hard-fought voting laws enacted during the Civil Rights Movement and the anti-corruption reforms passed in the aftermath of the Watergate scandal."
John Roberts speaks into a microphone. (image: Cindy Ord/Getty/Slate)
The Revenge of John Roberts
By Andy Kroll, Rolling Stone
11 July 21
And what it will take to rescue democracy from a Supreme Court and a GOP hell-bent on dismantling it
 n the fall of 1981, a young conservative lawyer named John Roberts, fresh off a Supreme Court clerkship, arrived at the Justice Department at the start of Ronald Reagan’s presidency. Hired as a special assistant to the attorney general, Roberts focused on voting rights, and in particular the battle underway in Congress over the reauthorization of parts of the landmark Voting Rights Act of 1965. That included Section 2 of the law, which gave voters a tool to fight discriminatory voting laws and rules in the states.
As Roberts settled in at DOJ, a coalition of Democrats and Republicans in Congress wanted to reform Section 2. Under their plan, voters could strike down discriminatory voting laws by proving those laws caused discrimination, not that the people who made the laws had set out to discriminate. In other words, intent didn’t matter; outcomes did.
John Roberts helped lead the fight to stop this change. He drafted op-eds, talking points, and memos arguing that the proposed reforms gave the federal government too much power to influence state voting laws and would lead to a quota system for who held elected office.
Roberts and the Reagan DOJ failed. The Voting Rights Act reauthorization passed with bipartisan support in 1982, and the number of lawsuits about discriminatory voting laws brought under Section 2 went from three in 1981 to 175 in 1988, according to the book Give Us the Ballot by the journalist Ari Berman. But Roberts would get his revenge. He claimed the Supreme Court chief justice’s seat once held by his mentor, William Rehnquist, in 2005. In the ensuing years, Roberts has chiseled away, piece by piece, at the nation’s laws for voting rights, campaign spending, and other democracy issues. Today, voting-rights activists and election-law scholars say the Roberts court, having dismantled chunks of the post-Watergate ethics reforms and the Voting Rights Act, is one of the biggest impediments to democratic reform at a time when the country needs those reforms more than ever.
The final two opinions of the most recent Supreme Court term put this phenomenon on full display. In Americans for Prosperity Foundation v. Bonta, the court’s six conservative justices ruled that California’s requirement that charities disclose their biggest donors to state regulators was unconstitutional. Critics of anonymous political spending say the decision will fuel future challenges to transparency laws and empower anonymous donors at a time when American politics is awash in dark money from Democratic and Republican groups alike. “We are now on a clear path to enshrining a constitutional right to anonymous spending in our democracy, and securing an upper hand for dark-money influence in perpetuity,” Sen. Sheldon Whitehouse (D-R.I.) said in a statement reacting to the decision.
In the second decision, Brnovich v. DNC, the Roberts court knee-capped Section 2 of the Voting Rights Act. The Brnovich decision, legal experts say, will give greater leeway to state governments when they craft voting rules, and makes it much harder to prove that a voting law is discriminatory. “This is the rewrite of Section 2 that John Roberts couldn’t get in 1981,” Rick Hasen, an election-law expert at the University of California, Irvine, tells Rolling Stone. “I think it’s going to be extremely difficult now (to bring Section 2 challenges) except for the most egregious forms of voter discrimination.”
Combined, the AFPF and Brnovich decisions continue the Roberts court’s decade-plus track record of undermining the hard-fought voting laws enacted during the Civil Rights Movement and the anti-corruption reforms passed in the aftermath of the Watergate scandal. And with a six-vote conservative majority on the Supreme Court in place for years — if not decades — to come, that trend shows no sign of ending soon. “As long as there’s a strong conservative majority on the court, any hope that the courts will do anything to rein campaign spending or states’ efforts to restrict the vote or tilt the playing field is indeed a hollow hope,” says Lee Drutman, a senior fellow in the Political Reform program at New America.
In the face of the Roberts court’s agenda, reformers in Congress and in state legislatures as well as election-law scholars say the need for new policies tailored to survive the high court’s scrutiny. Coming at a time when Republican state governments are seeking to restrict access to the ballot box, the Supreme Court’s latest decisions are “yet another affront to Americans’ right to pick their elected officials and know who is working to influence the democratic process,” Sen. Amy Klobuchar (D-Minn.) tells Rolling Stone. “This further underscores the need for Congress to pass legislation to protect the freedom to vote and ensure that our democracy works for the people, not for special interests and billionaires.”
Before surveying the options under consideration by reformers, it’s worth better understanding how far-reaching and potentially damaging the Supreme Court’s last two decisions were.
In the AFPF case, the court struck down California’s requirement that large donors to charities must be disclosed to the state government so that the state can root out possible fraud related to those donors. The Americans for Prosperity Foundation, a Koch-backed group, and the Thomas More Law Center challenged that requirement, saying it violated the group’s freedom to associate in private. They also cited the risk of harassment if the private donor information became public (as had happened in the past when some donor information was leaked).
The case harkened back to the influential NAACP v. Alabama decision in 1958, when the Supreme Court ruled that the NAACP didn’t have to disclose members who feared facing retribution in the Jim Crow South. In AFPF, the NAACP Legal Defense Fund, ACLU, and other civil-rights groups invoked that earlier case in a friend-of-the-court brief that argued for the right to associate in private and urged the court to reach a narrow decision that would have struck down California’s rule without broader implications for transparency in civic and political life.
Instead, the majority’s opinion, written by Roberts, has broad implications for politics and activism. Before, the Supreme Court had made clear that disclosure was important enough to preserve even if it led to some nastiness or vitriol as a result. In his AFPF opinion, Roberts tossed that out the window. The mere possibility of a chilling effect on association was enough, he wrote in his opinion, to justify getting rid of certain disclosure requirements.
Roberts’ decision does more than wipe out California’s law, experts say. Under this reasoning, it opens the door to future challenges to longstanding laws on the disclosure of campaign donations put in place after Watergate, when untraceable money flooded into American elections and led to corruption. “Today’s analysis marks reporting and disclosure requirements with a bull’s-eye,” Justice Sonia Sotomayor wrote in her dissent in the AFPF case.
In Brnovich, the voting-rights case, the Roberts court took the opposite stance toward a state’s authority to set the rules. This time, in an opinion written by Justice Samuel Alito, the court deferred to the states to set their own voting rules and raised the bar almost impossibly high to challenge those laws for alleged discrimination, voting-rights advocates say. The majority’s opinion makes it so that a state can justify voting changes (cutting early voting, restricting absentee voting, reducing polling places) if it did so in the interest of preventing possible fraud, even if such fraud is vanishingly rare. The majority’s Brnovich ruling also takes as its benchmark the year 1982 — the year when Congress last passed major updates to the Voting Rights Act — for gauging the discriminatory nature (or not) of voting changes.
Rick Hasen, the election-law expert, describes the practical effect of the decision like this. Imagine that a state offered a week of early voting, he says, and there was evidence that a large number of African American voters used the Sunday before the election to do Souls to the Polls drives to get people to vote right after church. Then imagine that, post-Brnovich, the same state got rid of Sunday early voting and the evidence suggested the state did so to blunt African American turnout.
Under the Roberts court majority’s approach, Hasen says, this would likely not run afoul of Section 2. In his opinion, Alito says the benchmark for measuring whether a voting change is discriminatory is how it compares to the voting rules when the VRA was last reauthorized — in 1982. His test also implies that as long as a state can point to other voting opportunities, it can fairly justify cutting something like Sunday early voting. “For one reason, in 1982 there were very few early voting opportunities, so eliminating early voting can’t be a Section 2 violation because that wasn’t the norm in 1982,” Rick Hasen says. “For another thing, you have to look at the election system as a whole, so long as there are other ways to vote, then it’s not discriminatory under this court’s ruling.”
So what can — and what should — Congress do?
Lee Drutman, the New America political-reform expert, says the For the People Act, aka H.R. 1 and S. 1, contains a number of provisions that could repair some of the damage done by the Supreme Court’s two most recent decisions. That bill — which was recently filibustered in the Senate but Democrats have vowed to revive — would increase disclosure of dark-money donations, mandate paper ballots, and give the federal government more latitude to expand access to the ballot box.
But Drutman acknowledges that many of the most popular pieces of the For the People Act — which has a slim change of passing in the first place — will face challenges by conservative and libertarian legal groups. “Republicans are going to litigate the hell out of it,” he says.
As pressure builds inside the American democratic system because of hyper-partisanship, the nationalization of politics, and many other factors, what’s needed are release valves, Drutman says. He supports reforms that might break the “two-party doom loop,” as he puts it. Those include Alaska’s model of a top-four primary election and ranked-choice voting like in New York City but applied to, say, the U.S. Senate. “I think you’d see opportunities for more political parties and new coalitions forming,” he says. “You’d get the release valves.”
Rick Hasen says lawmakers should focus for now on the most immediate threat to American democracy: election subversion. He says the country narrowly avoided such a disaster in the 2020 election despite Trump’s attempts to pressure state and local election officials, like when he asked Georgia Secretary of State Brad Raffensperger to “find” 11,870 votes to give him the victory in Georgia. But with the Trumpist wing of the GOP in full control, and Republican state legislatures moving to pass laws that empower partisans to dictate how elections are run and counted, subversion remains a threat, whether it’s the prospect of a state legislature selecting a rival slate of electors, a president pressuring election workers to change the count, or members of Congress disrupting the certification process in Washington, D.C.
Hasen says the universal use of paper ballots, tougher penalties for anyone who interferes with the election-counting process, and reform of the antiquated Electoral Count Act could all help prevent a future attempt to overturn or change an election outcome. It’s also a more narrowly tailored solution that, he says, could win over 10 Senate Republicans.
“We may not know until January 2025, when Congress has counted the Electoral College votes of the states, whether those who support election integrity and the rule of law succeeded in preventing election subversion,” Hasen wrote this spring. “That may seem far away, but the time to act to prevent a democratic crisis is now.”
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