Guest Post

  • July 19, 2017
    Guest Post

     

    by Raha Wala,  Director of National Security Advocacy, Human Rights First

    President Trump during the campaign said he wanted to bring back waterboarding and "much worse.” He went so far as to say that even if torture doesn’t work, we should still use it on suspected terrorists, because “they deserve it anyway.”  Still, he has so far deferred to Secretary Mattis and his other top national security advisors, who have advised that waterboarding and other torture tactics are unlawful and inappropriate.  Just last week, Christopher Wray, president Trump’s nominee for FBI Director said: “torture is wrong, it is unacceptable, it is illegal and I think it is ineffective.”

    Unfortunately, that important statement of principle will be undermined if the Senate confirms Trump’s nominee for a key legal post in his administration. Steven Bradbury is most prominently known as one of the infamous “torture memo” authors for his role in providing legal justification for the CIA’s so-called “enhanced interrogation” program in the George W. Bush administration.  As head of the Office of Legal Counsel (OLC) at the Department of Justice from 2005-2009, Mr. Bradbury wrote legal memoranda justifying waterboarding; sleep deprivation for up to 180 hours; holding detainees in painful, prolonged stress positions; forced nudity; locking detainees in cramped boxes the size of dog crates; physically assaulting detainees by slapping them or slamming them into walls; and other forms of torture and abuse. He should not now be rewarded with confirmation to a general counsel post.

  • July 14, 2017
    Guest Post

    by Lauren Guth Barnes, partner at Hagens Berman Sobol Shapiro LLP

    It is 775 pages long. I have not read all of it. But I know this: it is a great win for consumers.

    On Monday, July 10, 2017, the Consumer Financial Protection Bureau (CFPB) issued its final rule banning providers of various consumer financial products and services – credit cards and the like – from using arbitration agreements to bar the filing of or participation in a class action. Arbitration is an alternative form of dispute resolution, almost always held in secret, before an individual paid by one or both sides; the parties forego the right to trial by jury and the protections of an independent judicial system, including a neutral judge, the rules of civil procedure and evidence and the transparency of open proceedings. It may work in some settings, between parties of equal bargaining power and when openly agreed to, after a dispute arises. But when buried in the fine print of contracts, often with a clause preventing any kind of group or class action, forced arbitration serves simply to insulate companies from accountability.

    Say your phone company rips you off to the tune of $30. You will likely be angry. You will complain to some friends. You might even spend a little time on the phone, working your way through the company’s customer service and billing bureaucracy. But when you get no relief there, are you going to file a lawsuit over that $30? Or seek arbitration with the company, either by yourself or with the assistance of a lawyer you may have to pay on an hourly basis? The answer, for the vast majority of Americans, is a resounding “no.”

    Companies count on that. They bank on the fact that it is not really worth your time or energy to fight over $30. Or your neighbor’s time. Or the time of the thousands – or maybe millions – of other people they ripped off too. But wow, $30 times thousands or millions of consumers? That is a pretty penny to pocket, all while facing no liability.

  • July 14, 2017
    Guest Post

     

    by Shoba Sivaprasad Wadhia, the Samuel Weiss Faculty Scholar and Law Professor at Penn State Law and founding director, Center for Immigrants’ Rights Clinic.

    A travel ban was signed by the president in the form of an Executive Order on March 6, 2017. The most controversial provisions of the ban include a 90-day travel restriction for nationals from six countries with Muslim populations of more than 90 percent: Iran, Libya, Somalia, Sudan, Syria and Yemen as well as a suspension of the refugee admissions program for a period of 120 days. The ban was successfully challenged in the courts on both constitutional and statutory grounds. 

    On June 26, the Supreme Court of the United States issued a significant decision on the travel ban, agreeing to hear the case in the October 2017 term and also allowing part of the ban to go into effect. The formula offered was as follows: any national from the six countries impacted by the ban or refugee who lacks a credible “bona fide relationship to a person or entity” is banned from the United States. Unsurprisingly, attorneys and affected communities were eager to understand how “bona fide relationship” would be defined and applied. While the Supreme Court offered a few examples of what might qualify as a bona fide relationship to a person or entity, the uncertainty about how this would be applied by the implementing agencies (in this case Department of Homeland Security and Department of State) is real.

    Hours before the ban was to go into effect at 8:00pm EST on June 29, the Departments of State and Homeland Security issued “guidance” which to say the least is controversial. Guidance from DHS offered the following question and answer regarding the definition of “bona fide relationship:”

  • July 13, 2017
    Guest Post

    by Reuben Guttman, Founding Member, Guttman, Buschner & Brooks PLLC

    In this era of electronic information, a large part of what we do or think is recorded in real time through emails, tweets, cell phone photographs, videos and Facebook. If electronic information can be secured through document requests, subpoenas or civil investigative demands, there may be little more to learn from direct witness examination other than testing theories, authenticating records and getting a better sense of the personalities that are the subject of the investigation. While this was not the paradigm for the Watergate investigation of yesteryear – occurring at a time when there were no emails or even an internet – it is the paradigm for the current investigation of the Trump campaign’s ties to Russia.

    And so, on June 11, 2017, Donald Trump Jr. released an email chain that Senate and Department of Justice investigators will undoubtedly learn about anyway. Why did he do it unprompted? Perhaps it was out of panic. Perhaps he thought that releasing some emails would cause investigators to refrain from seeking all of his emails through a subpoena. Or perhaps it was a manifestation of the self-destructive impulses that also prompt his father’s unpredictable conduct.

    A review of the few emails that Mr. Trump Jr. disclosed allows us to envision how investigators might use them.

  • July 11, 2017
    Guest Post

    by Aziza Ahmed, Professor of Law at Northeastern University School of Law

    The United States has long been the largest bi-lateral donor in family planning assistance. Amongst other health services, this funding is dedicated to promoting reproductive health services, providing modern forms of contraception and responding to needs in maternal health care. In 1984, at the International Conference on Population in Mexico City, then President Ronald Regan announced the Mexico City Policy or what has come to be known as the “Global Gag Rule.” The policy mandated that United States family planning funding could not be used to “perform or actively promote abortions as a method of family planning.” The Mexico City Policy added restrictions to the Helms Amendment passed in 1973 which prohibits United States Foreign Assistance from paying for “the performance of abortions as a method of family planning or to motivate or coerce any person to practice abortions.” The Helms Amendment, however, only applied to U.S. government money – non-U.S. funding could be utilized to provide abortion related services. The Mexico City Policy goes much further: mandating that U.S. government funds would not be given to non-governmental organizations who provide abortion related services with their own funding or funding from other sources. In other words, organizations receiving U.S. money would have to choose whether to refuse U.S. funds (risking closure) or turn away women needing abortion related services. In announcing the Mexico City Policy, Reagan further ensconced U.S. family planning assistance in domestic abortion politics and policy, placing the lives and health of people residing in countries where U.S. aid supplemented health services on reproductive health at significant risk.

    Since its inception, each Republican Administration has reinstated the rule while each Democratic administration (with some exception) has stopped its application to U.S. foreign assistance. Each time the policy is renewed or revoked days after the change in administration – making the Mexico City Policy a way to cater to the political base of the newly elected party. There has been subtle acknowledgement even from Republicans that the Mexico City Policy has a negative impact on health programming. The George W. Bush administration, for example, which initiated the President’s Emergency Plan for AIDS Relief, a multi-billion dollar initiative aimed at the prevention and treatment of HIV, limited the application of the Mexico City Policy to HIV/AIDS money despite the conservative anti-choice rhetoric of the party.