Legal Perspective: Does repealing ACA violate International law?

UN Headquarters in Geneva, Switzerland.
2017/UN photo

Through the journalism of Dana Milbank, in a recent Washington Post column, the world became aware of a secret memo sent from the UN to the US which declared the provisions of the Affordable Care Act to be protected under international law and that repeal would violate US commitments under international agreements.

The argument is based on a 2 February 2017, five-page, confidential memo sent from the Office of the UN High Commissioner on Human Right in Geneva to the US Department of State in Washington, DC. The memo expresses “serious concerns” about the prospective loss of health insurance coverage for nearly 30 million Americans. The memo goes on to urge the US Government to take “all necessary interim measures [. . .] to prevent the alleged violations”. As if the Commission’s memo wasn’t clear enough, there is a bold threat that if the “allegations” of loss of health coverage are proved accurate, then the person(s) responsible for failing to prevent said loss are guaranteed to be held accountable.

The memo was written by Dr Dainius Puras, Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, cites three specific areas of treaty law as grounds for why repealing the ACA would constitute a violation of public international law.

First is that Article 25 of the Universal Declaration of Human Rights “establishes everyone’s right to a standard of living adequate for the health and well-being, including food, medical care and necessary social services.”

Next, Dr Puras cites Article 5(e) of the International Convention on the Elimination of All Forms of Racial Discrimination, ratified by the United States in 1994, calls on states to “guarantee the right of everyone,” including “the rights to public health, medical care, social security and social services” without regard to race or color.

Lastly, Article 12 of the International Covenant on Economic, Social and Cultural Rights, under which states have “the core obligation to ensure the right of access to health facilities, goods and services on a non-discriminatory basis, especially for vulnerable or marginalized groups.” The agreement was signed but not ratified by the US, which is still “obliged to refrain from acts that would defeat the covenant’s object or purpose, in conformity with Article 18 of the Vienna Convention on the Law of Treaties.”

When I worked in the diplomatic world, I was taught that the epithet “serious concerns” is kind of like saying “we are so f—ng angry right now that we are ready to fly in a start shooting someone!!” Couple this language with the bold threat of “guarantee the accountability of any person responsible” for the loss of health coverage and now you have a complete cease and desist demand with scathing undertones.

Making demands and threats is not good diplomacy. The UN, through the said declaration, convention, and covenant, has reiterated that the aspirational standard of living includes not only includes food and shelter, but access to medical care and social security and other social services. This is agreeable, but it is a long stretch to say health care is a universal human right.

UN Council on Human Rights Chamber.
2017/UN photo.

What are human rights? According to the UN Human Rights Office of the High Commissioner, “Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status. We are all equally entitled to our human rights without discrimination.”

The principle of universal rights was first emphasized in the 1948 Universal Declaration on Human Rights, which lists free speech, freedom from fear and want, and the freedom to rebel against tyranny and oppression if freedoms are not protected by rule of law as values recognized the by the international community. Other core values listed are the dignity and worth of the individual human life, equality between men and women, and the promotion of better standards of life.

Within the Declaration are listed the articles, which resemble the US’ Bill of Rights and a few later amendments. They include right to due process under law, right of a speedy and fair trial, prohibition on slavery, prohibition against torture and inhuman punishment, right of privacy, right to have a nationality, right to flee persecution and seek asylum, right to movement, right to marry and have a family life, right to own property, freedom of thought, conscience and religion, freedom of expression and opinion, right to assemble and associate, right to work and seek employment, et cetera.  

In addressing Dr Puras’ Article 25 Human Rights claim, he stopped shy of reading the entire clause, which indicates that “right of a standard of living adequate for health and well-being” can mean many clean air, pure water, transparency about what is in food and drugs, adequate law enforcement, etc. However, the clause goes on to read that the right to adequate food, clothing, housing, medical care, social security in the event of circumstances beyond the individual’s control, such as disability, widowhood, old age, or sickness.

It is pretty safe to say that the Declaration on Human Rights may be broadly interpreted to suit a person’s needs, falls short in declaring universal affordable health insurance a human right. The Declaration makes clear an obligation on nations to take care of citizens who have fallen through the cracks – the disabled, sick, old, and widowed. The connecting factor between these groups is that they cannot contribute to the economic output of a nation.

Dr Puras’ memo fails to consider the notion that repealing the ACA might actually make health insurance in American more affordable and more accessible. There would have to be some tweaks to the law, but certainly allowing consumers to buy across state lines and to allow insurers to offer a la carte plans would reduce the cost.

Considering healthcare costs for the US are three times the OECD average currently (OECD health statistics 2016), the idea of affordable healthcare being only tied to insurance premiums is absurd economics.

The average self-employed Colorado family with a special needs child could expect to pay in 2016 around $50,000 in health insurance premiums. According to the US Census ACS survey, the 2015 real median household income in Colorado was just under $64,000. Assuming that family pays 20% in taxes, that leaves about $1,000 (after health insurance) for rent/mortgage, food, water, clothing, transportation, leisure activities, etc.

According to the Economist, Americans in the lowest 20% of income are 15.5% better off, whereas all other income decile are worse off by 0.3-1.1%. It seems tough to put a number to Americans being worse or better under the ACA, as there are many moving parts, such as Medicaid Expansion, which would have most certainly helped the lowest 20%.

The Economist also reported that in the first quarter of 2017, American household income reached its highest level since the 2007-08 Financial Crisis began. Considering the ACA was signed into law by Pres Obama on 23 March 2010, it is hard to say how much improvement, if any, the law made since American’s earnings ratcheted down and health care and education costs began raising prices astronomically.

Recently I visited Connect for Health Colorado, Colorado’s health insurance marketplace, after plugging in my age, and a few key health stats (note, under the ACA you cannot be turned down for a pre-existing condition, but your premium can increase) and the lowest monthly quote I received was $750! Multiplied by 12 to see a full year’s cost and the number is $9,000! In 2016-17, the penalty for not having health insurance is 2.5 percent of income or $695, whichever is greater. Economically speaking, it is cheaper to pay the penalty, and then quickly enroll in an exchange plan if my health takes a dramatic turn for the worse.

Dr Puras then uses the International Convention on the Elimination of All Forms of Racial Discrimination as grounds that repealing the ACA would unjustly discriminate against some people. Having the ACA in place unjustly discriminates against the middle class and the way the ACA targets self-employed persons is particularly disturbing. Assuming Medicaid Expansion stays in place, it is a tough argument to say that repealing the ACA is discriminatory.

The last part of Dr Puras’ legal authority is the International Covenant on Economic, Social and Cultural Rights, which the US signed, but has not ratified, thus its bindingness is persuasive only. The key argument is over “access to health facilities.” In the US, if you are injured or in need of medical attention, you will receive it at the nearest hospital, with top facilities, highly skilled doctors and nurses, and never will you be discriminated against on the basis of race, economic status, lack of health insurance, religion, sex, gender, political persuasion, et al. The reason is the adherence to the Hippocratic Oath, which is a core principle in American medicine and treatment. If you are unable to pay, the local government will pick up the tab, with reimbursements coming from the state level. This is not the preferred way of doing business and the medical provider will want to work out a payment plan, but at no point in time was access to health facilities denied before or after the ACA.

Under UN General Assembly Resolution A/67/L.36 (6 Dec 2012), affordable universal healthcare became part of the UN's Post-Millennium Development Goals. The resolution is a way to hold member states accountable if they fail to comply. The Commission on Human Rights is charged with overseeing compliance, since spending on healthcare is treated as a fundamental human right. Poorer states may rely on foreign states for financial assistance.

A major problem with basing interpretation and authority on UN General Assembly resolutions is that the United Nations doesn’t consider UNGA resolutions to be legally binding.

Further, United States courts traditionally have not considered UNGA resolutions to be authoritative sources of international law, unless the resolution merely restates legal principles that could be verified by reference to recognised sources such as customary international law, treaties, and judicial decisions.

Even as some US courts are more receptive now days to UNGA resolutions, there is a danger here, as many UNGA resolutions contradict treaties, other resolutions, member state’s constitutions, and member state’s domestic law.

Quick example: UNGA Resolutions 339 A and B - Delegations voted in favour of both resolutions which called for maintaining a UN Command on the North/South Korean border and dissolving the UN Command and remove all foreign troops from South Korea.

Only 58 out of 200+/- nations have a form of affordable universal health care hardly constitutes sufficient state practice to establish customary international law (other element required is opinion juris, which is the belief that practice is legally obliged).

Even if affordable health care is deemed a right under treaty or convention, enforcement will be a problem.

It seems that if the UN is so concerned about the domestic affairs of nations, they should fund and provide the services they are desirous of compelling.

At a time when nations are ever more sceptical of large International organisations, perhaps flaming the dissatisfaction is inimical diplomacy.

Shouldn’t the ‘minimum-wage’ include compensating unpaid interns?

Loaded with optimism and student loans, the law grad sees the advertisement that reads: Democratic member of the Senate Committee on the Judiciary seeks law clerk for Fall 2014, full time, unpaid.

Presuming that law grad did not have a trust fund or wealthy parents to subsidize the inflated cost of living for Washington, DC, working for the powerful on Capitol Hill would be outside consideration.

How in the world can those who tout raising the minimum wage get by without paying at least the minimum for assistance?

Before scratching your head too much, let’s look at the economic and legal dynamics involved in this

White House internship programme. 2011 Getty/McNamee.

conundrum.

During President Barak Obama’s 2014 State of the Union Address, he asked Congress to pass the Harkin and Miller bill and raise the federal minimum wage from $7.25 to $10.10 per hour. The President went one step further by unilaterally signing Executive Order 13659 which raises the wage of federally contracted workers to $10.10 per hour.

Perhaps it should be noted here that White House interns are not paid. Yet these are highly sought after positions that see young brains fulfilling a full time position for six months to a year.

According to a 2012 Intern Bridge survey, more than half of all post-undergrad and grad-school internships and traineeships are unpaid. Many students desperately really on these work related experiences to land higher paying career type jobs.

In the years since the 2007-08 Financial Crisis, unpaid internships and traineeships have become the new norm. Many companies were unable to pay new workers during the crisis and new workers were eager just to gain experience.

The wave of unpaid internships in the private sector came to a skidding halt in June 2013 when a federal district court in New York held in Glatt et al. v. Fox Searchlight Pictures, Inc. that the company had violated the Fair Labor Standards Act by not paying for “benefits received.”

The Department of Labor has developed a six-part test, based on Supreme Court case law relating to railroad company’s trainees, to determine whether for-profit companies must pay interns.

In short, in order for a private business to meet Labor’s standards, the internship must be wholly for the benefit of the intern and not the employer – that’s a pretty tough to satisfy.

According to The 2013 Student Survey, a graduate who had a paid internship experience makes a medium starting salary of $51,930, compared with $35,721 for those who had an unpaid internship experience.

Law firms are also willing to pay for new associate’s experiences and connections to judges and lawmakers through clerkships. Many firms will pay a 20% bonus on top of a starting salary.

President Obama announces a $10.10 hourly minimum wage
during the 2014 State of the Union Address. USAToday.

With some of the highest paid first-year associates earning just over $160,000, why are we worrying about the President and his Congressional cronies not paying their clerks?

Firstly, if it was the private sector, it would be illegal under the pay-for-benefits test.

Secondly, with the average law school debt in America hovering around $150,000, it is very difficult for a newly minted grad to go a year without a pay check, no matter how amazing the potential bonus, from the potential job, might be. Unless, of course that grad has the coveted silver-spoon in the mouth, in which case, even a minimum wage would be offensive to the privileged elite.

This is not a Democrat vs. Republican issue; instead, this is a remnant of the old Governmental privilege which must go away. Currently, only the better-off people in society get to undertake such unpaid positions. The less fortunate must take paid positions that don’t come with connections.

If the President and Congress want everyone to be paid a proper wage, then shouldn’t “everyone” include the currently unpaid staff?

Coloradan Ron Binz is not suited to be FERC chairman

Senators Mark Udall & Michael Bennet introduce Ron Binz

Tuesday’s Senate confirmation hearing on Colorado’s Ron Binz to be President Barack Obama’s Federal Energy
Regulatory Commission chairman saw electromagnetic shock-waves blast from Alaska to West Virginia.

Senate committee hearings can be dry, dull and draining — perfect events for playing online poker or doodling.

Tuesday’s Energy and Natural Resources Committee hearing in Washington, D.C., was far from boring.

One lobbyist in line commented, “This is the first FERC appointee in my 30-year career which has drawn a crowd.” In fact, there were twice as many spectators as seats. A vast overflow spilled into the halls resembling a queue for a rock concert, rather than a committee meeting.

Energy transmitted over FERC-regulated pipes and wires is worth nearly $400 billion per year. Grand Junction’s Greg Walcher, in his book, “Smoking them out: The theft of the environment and how to take it back,” states that the transmission of power is the most difficult issue facing the environment today.

FERC regulates the transmission and wholesale sales of electricity in interstate commerce, along with licensing of electric production, pipelines and liquid natural gas terminals. FERC does not regulate the source, merely the transmission of electricity on the grid.

So, what is so controversial about Obama’s FERC appointee from Colorado?

Four things:

✔ The Colorado Clean Air, Clean Jobs Act

✔ The “30 percent by 2020” Colorado mandate

✔ Allegations of Binz misleading or lying to the Energy Committee’s ranking member

✔ Binz’s statement that natural gas would be a “dead end” by 2035.

Binz, the former chairman of the Colorado Public Utilities Commission under Gov. Bill Ritter, co-authored Colorado’s controversial, $1.3 billion Clean Air, Clean Jobs Act of 2010, which pitted Colorado coal producers against the natural gas industry.

The act requires Xcel Energy to retire or retrofit 900 megawatts of Front Range coal-fired power plants into facilities fueled by natural gas or other energy sources.

The act received broad bipartisan support. Former Senate Minority Leader Sen. Josh Penry, then of Grand Junction, co-sponsored the legislation. Subsequently, Penry was criticized for accepting employment with an energy consulting firm.

The “30 percent by 2020” mandate was originally co-authored by Binz in 2007. It required Colorado’s energy providers to have 20 percent of their portfolios coming from renewables by 2020. The law was amended in 2010 to increase renewables to 30 percent.

Locally, state Sen. Gail Schwartz, D-Aspen, who co-sponsored the 2020 mandate and represents a district with natural gas wells and coal mines, was criticized for destroying hundreds of western Colorado jobs.

The third controversy stems from the fact Binz told Sen. Lisa Murkowski of Alaska he had not engaged the assistance of lobbyists to secure his nomination. However, open records of White House emails revealed Binz’s nomination was being coordinated by FERC staff, a PR firm and consultants.

The defense: Binz claims he did not pay for or ask for these services.

Finally, in a statement several years ago, Binz described natural gas as being a “dead end” by 2035 without carbon capture and sequestration. Sen. John Barrasso of Wyoming directly asked Binz about this quote, to which he replied, “I believe the technology will be perfected by 2035.”

The “dead end” quote and beliefs about carbon capture and sequestration are likely to lump senators from coal and natural gas-producing states in the same camp, opposing Binz.

The Energy Committee has 22 members: 12 Democrats and 10 Republicans. All committee members vote. A tie vote ends the nomination. Simple majority sends the nomination to the full Senate for consideration.

Sen. Joe Manchin, a West Virginia Democrat is from a coal-mining state and has threatened to vote “nay.” If Manchin joins the Republicans, then the Binz nomination will fail.

Indications are that Obama suffered significant loss of political prestige from his venture into war mongering with Syria. Last week three Democrats opposed Larry Summers to be chairman of the Federal Reserve and Summers withdrew his name from consideration. And now, one Democrat — Manchin — is holding up the Binz nomination.

To understand the complexities of the controversy, one must understand the dynamics of traditional-versus-renewable energy producing states; power providers versus consuming states; and rich versus poor states.

Americans desire affordable power. However, the energy source is not always conveniently located to power plants, which are usually a long way from cities and our homes.

FERC is important because it regulates the transmission of electricity through power lines or gas through pipelines.

Binz’s history here in Colorado is one of picking winners and losers in the energy sector. FERC needs a chairman who is not gambling and playing politics at the expense of consumers who are paying higher electric rates year after year.

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Soper, Matt.  "Coloradan Ron Binz is not suited to be FERC chairman." Grand Junction Daily Sentinel 22 Sept 2013: B7 <http://www.gjsentinel.com/opinion/articles/coloradan-ron-binz-is-not-suited-to-be-ferc-chairm> accessed 22 Sept 2013

Legal & political aspects of military intervention in Syria

Should the US attack Syria? Has Assad used chemical weapons against his own people? Would US intervention violate public International law?

Regardless of the answers to these questions, an upcoming vote on Capitol Hill illustrates how foreign affairs are as much about domestic politics, as it is about International relations.

Syrian President Bashar  al-Assad and his wife, Amsa.

President Obama has played a brilliant game of chess against the Republicans. How you might ask?

Prudently, the President is wise in asking for a Congressional vote. It is a tough decision and vesting everyone in the decision process is smart.

Politically, a Congressional vote on Syria puts the Republicans on record prior to the 2014 mid-term

elections, which makes such a vote all the more sensitive and strategic.

The Constitution does not require the President to ask Congress’ permission to engage the armed forces in hostilities. War making powers are shared jointly between the Executive and Congress.

Is military action against Syria legal under public International law?

Under the UN Charter, states may only use force in two instances: self-defence or when the Security Council has authorized force to maintain or restore international peace and security.

Here, Syria has not attacked American citizens, assets, or allies; nor has the Security Council authorized the use of force. The Syrian government is merely engaging in an internal conflict to suppress rebels.

Additionally, Customary International law would allow Syrian government officials, such as Bashar al-Assad to be prosecuted for crimes against humanity and the use of chemical weapons, even though Syria has not become a party to the Genocide, Torture, or Ban on Chemical Weapons conventions.

Regardless of International conventions and customs, US law recognizes the ratified treaties at taking the same status as federal law. This means, the UN Charter, as a treaty, is tantamount to federal law. Congress is free to override federal law by adopting resolutions. So under an American law analysis, Congress can do whatever the hell it wants, so long as that action doesn’t violate the Constitution.

The notion that Congress must pre-approve military action is erroneous. Article I, Section 8 of the Constitution grants Congress a non-specific power to ‘declare war.’ However, of the 130 plus times military action has been taken abroad, Congress has only declared war 5 times.

US President Barak Obama with Speaker John Boehner (left).

Under the Presidential War Powers Act, President Obama, as commander-in-chief, may introduce the military to hostilities without Congressional notice for a period of 60 days. The Act goes on to mention that hostilities must comply with: (i) declaration of war, (ii) statutory authority, or (iii) national emergency. Additional time for hostilities is granted upon Congressional approval.

Here, President Obama would be allowed to introduce the military into foreign involvement without Congressional approval.

Why ask Congress for permission if President Obama doesn't legally need it?

Remember the mid-term elections are fast approaching. A Congressional vote on Syria puts the Republicans on record prior to the 2014 elections, which makes this vote highly political. This is why Speaker John Boehner, a supporter of Syrian intervention, isn't making this a partisan vote – he needs to ensure Republicans are re-elected.

Politically, the issue of Syria is dividing the Republican Party into the Paul Republicans (non-interventionists) and the McCain Republicans (the war-hawks).

Here in Western Colorado, Congressman Scott Tipton announced he would be voting ‘no’ during a town hall meeting recently in Durango.

Both of Colorado’s US Senators, Mark Udall and Michael Bennet, are vacillating over how to vote regarding Syrian intervention to punish the use of chemical weapons.

Meanwhile, on the International stage (remember, I said foreign affairs was only partly about domestic politics), Russian President Vladimir Putin has asked the US to present evidence before the UN Security Council that the Assad government was responsible for the chemical weapons attack.

If the US proceeds without a UN Security Council resolution, then legally this action would be pre-emptive self-defence or a unilateral enforcement an International custom (the ban on chemical weapons). Both concepts would dramatically expand the Bush precedent.

Targeted Syrian assets.

Recently, in Stockholm, President Obama said, “My credibility isn't on the line, the whole international

community's credibility is on the line, Congress' credibility is on the line.”

Actually, Mr President, your credibility is on the line, as you’re the one proclaimed Syria used chemical weapons and that the US should take punitive action.

While the White House has gotten the entire International community in a frenzy, one thing is for certain, if the US strikes Syria, no longer will President Obama be able to blame the results on the George Bush Administration. 

Snowden – traitor, patriot or whistle-blower?

Traitor, patriot, or whistle-blower? Americans took to the streets in protests over Zimmerman’s acquittal, yet reactions to the National Security Agency (NSA) covertly collecting phone and email records has been greeted with a mediocre response. How should those who leak confidential information to the media be regarded?

“[T]he Obama administration has gone after more watchdogs, leakers than any previous administration by far. And that raises serious questions,” Dan Rather, retired CBS news anchor said during a CNN interview on August 1, 2013.

Pfc. Bradley Manning, John Kiriakou, Thomas Drake, Edward Snowden, and others have been pursued by the Obama Administration. The Justice Department has unapologetically used warrants to obtain phone and email records of Associated Press (AP) journalists in an effort to quash governmental sources leaking confidential information to reporters.

The political parties are divided on whether whistle-blowers should be regarded as traitors or patriots.

Rep. Michelle Bachmann (R-Minn.), concurring with the Obama Administration, criticized Snowden for revealing sensitive information to the news media, saying, “This was not an act of a patriot; this was an act of a traitor.”

Rep. Justin Amash (R-Mich.), during a FOX News Sunday interview, said, “As far as Congress is concerned, sure, [Snowden’s] a whistle-blower.” Rep. Amash sponsored the Limiting Internet and Blanket Electronic Review of Telecommunications and Email Act (LIBERT-E Act), which narrowly failed, 217-205, during a July 24, 2013 bi-partisan House vote. The legislation would have restricted the NSA’s carte blanche data collection under the Patriot Act and required Congress to be briefed on NSA and FISA Court activities.

Edward Snowden

By definition, a government employee (whistle-blower) is protected from retaliation when that employee discloses employer wrongdoing, illegalities, or abusive conduct. As a comparative example, the Colorado Employee Protection Act (1979) requires a whistle-blower to make a good faith effort to disclose information to a supervising authority or member of the General Assembly.

Pfc. Manning stole more than 700,000 secret foreign affairs and war documents in 2010 and gave them to Julian Assange, who published the information on the Wikileaks website. The documents revealed U.S. troop movements and soldiers’ identifications, along with exculpatory diplomatic cables filled with colorful adjectives describing foreign government officials.

Pfc. Manning was found guilty of 19 criminal charges on July 31, 2013.

John Kiriakou, a former CIA officer, was sentenced to 30 months in federal prison in January 2013 for leaking classified information to a member of the AP in 2008. The leak included the operative’s name who participated in creative forms of interrogation during the initial stages of the War on Terror.

Thomas Drake, formerly an NSA executive, was prosecuted in July 2011, under the Espionage Act for ‘willful retention of national defense’ secrets.’ Drake and three cohorts, exposed the NSA Trailblazer program, which was a billion-dollar computer-based program to analyze Internet content, particularly email and cellular phone communications.

Drake leaked classified info to members of Congress and the New Yorker. The action complied with the federal whistle-blower legislation. The night before his sentencing hearing, 60-Minutes broadcast a feature report on Drake which resulted in the Justice Department dropping nearly all the charges. Today Drake works in a Washington, DC Apple Store. Incidentally, Drake recently ran into Attorney General Eric Holder, who was shopping for iPhones.

The Justice Department has yet to apprehend Edward Snowden, the former NSA contractor, who leaked information about the NSA Prism program and the FISA secret warrants for Verizon customers’ data to London’s Guardian newspaper and theWashington Post. The Obama Administration cancelled Snowden’s passport, which resulted in Snowden spending a month in the transit zone of Moscow’s Sheremetyevo Airport. Despite requests from the White House to extradite Snowden to the US, Russia recently granted Snowden a one-year asylum passport.

Manning, Kiriakou, Drake, Snowden attempted to be whistle-blowers, yet only Drake arguably was legally a whistle-blower, as he made a good faith effort to inform superiors and members of Congress prior to going to the press.

Should the analysis pivot on whether revealing domestic email and phone data gathering programs ought to be considered government-wrongdoing, illegal activity, or abusive conduct?

If one believes people are better off knowing the truth, then there is value to society in leakers revealing such information as the military operations in Vietnam outlined in the Pentagon Papers, the Watergate scandal, abuses at Abu Ghraib, or the Obama Administration’s efforts to block all leaks of information to reporters, including those revealing NSA collection of phone and email data.

A gentleman’s agreement exists between the free press and interests of national security. This agreement is a delicate and fragile one and precedential pursuits of the Obama Administration should make even the ardent liberal nervous. The media balance a fine line of aiding these so called ‘whistle-blowers’ and providing the scrutiny that Congress willfully turns a blind eye to providing.

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M. Soper. 'Snowden – traitor, patriot or whistle-blower?' Op Ed. Western Slope Watch Dog. <http://westernslopewatchdog.com/2013/08/guest-editorial-snowden-traitor-patriot-or-whistle-blower/> 10 August 2013

Murder rate way down, unsolved murder rate way up*

As unbelievable as Hadiya Pendleton’s ruthless murder, less than a mile from President Obama’s home in Chicago, is the reality that only 66% of those who murder are ever brought to justice. Pendleton’s murderer continues to remains at-large.

Marred by the mass-shootings of 2012 was America’s statistical achievement of seeing the lowest murder rate in the past 50 years. Hidden by the smoke of the gun debate is the disturbing reality that unsolved murders are nearing an all-time high.

Pendleton was murdered a mile from Pres Obama's home.

In 2011, according to the US Department of Justice, the murder rate was 4.8 per 100,000 people, which is contrasted to the 1980 high-water-mark of 10.2 per 100,000. It is estimated that after non-culpable homicide cases for 2012 are wound-up, the statistic will be around 4.6 – the rate hit back in 1963.

When graphed on a chart, the national murder rate looks like a bell-curve, with murders steadily increasing from 1960 to 1980 and then decreasing ever since. The lowest murder rate during the past 100-years was in 1957 – there were 4.0 per 100,000. If society does nothing, the projection is such that the US will near the 4.0 mark in a few years.

Vice President Joe Biden, outlined nine proposals for reducing homicides, which include: requiring background checks for all gun sales, banning assault weapons, limiting ammunition magazines to ten rounds, providing tax dollars for gun violence research, school emergency preparedness, and mental health coverage. Each recommendation noted that ‘no single law, or even a set of laws, can prevent an act of violence.’ Yet none focus on apprehending perpetrators.

The US has serious problems, for example, from 2011 to 2012 murders in Chicago increased by 38% to a devastating 506. Pendleton’s murder marks number 42 for 2013. By contrast, 418 people were murdered in New York City last year and seven so far have been murdered in 2013.

According to the UNODC, every US Territory, over the past decade, has seen a general increase in murders. Puerto Rico has the highest murder rate at 26.2 per 100,000 people. A record breaking 1,136 murders occurred in 2011 alone. Yet, Puerto Rico boasts twice as many police officers per capita as any US state.

Shockingly, only 25% of the murders in Puerto Rico result in the police apprehending the culprit. This was the case in New Orleans in 2010. Last year, homicide investigators improved this number to 39%, and were able to reduce murders by 3%. It is unfathomable that over half of the 193 murders during 2012 resulted in an accused being brought before the courts.

From 1980 to 2008 nearly 185,000 homicides went unsolved in the US, according to a Scripps Howard News Service study. Some cities, like New Orleans, have low murder clearance rates. Meaning the police were able to present the court with an accused. Others, like Washington, DC, have nearly doubled their success rate to a laudable 96%. Nearly 6,000 homicides go unsolved every year in the US. A national average of 66% is unacceptable.

While the Biden working group and the emotions of the nation cling to media images of recent shootings, a larger problem is law enforcement’s inability to bring more suspects before the courts.

If America truly cares about justice for victims’ families, society needs to invest resources to bring perpetrators to justice. Sophisticated investigating techniques and the quashing of minor criminal offences that are working in Washington, DC and New York City should be used to help municipalities like Chicago and New Orleans and territories like Puerto Rico.

When does society begin the conversation of addressing low murder clearance rates? Society needs to move beyond looking at the sensationalizing effect of recent mass shootings and see the big picture.

The US murder rate is at a 50 year low and dropping, despite recent outliers in the data. Concern, which should be sounding alarms, is the low national average of solving these murders.

To quote former President Bill Clinton, “There is nothing wrong with America that cannot be cured by what is right with America.” The US has the knowledge and the resources to better solve homicides; there is void of political will power. It is time to implement successful techniques to bring murderers to justice.

If society truly cares about tackling murders, the debate needs to be about unsolved crimes, supporting local law enforcement, and not about the implementation devices (eg guns) used to commit the offence. 
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*M Soper, Murder rate way down, unsolved murder rate way up, OpEd, Western Slope Watchdog 17 February 2013: 4+ <http://westernslopewatchdog.com/2013/02/murder-rate-way-down-but-unsolved-murders-way-up/> accessed 18 February 2013

2012 year-in-review: LL.B. to LL.M.

In the year since graduating from the University of Edinburgh much has happened in my life. I have gone from law student to campaign manager to youngest elected city council member of my home town to working for the leading NGO on maritime piracy to once again being a law student. In this time I have met and visited with the president, vice president, GOP challenger, a retired US Supreme Court justice, the highest judges from New Hampshire, Texas, and New York, along with visiting with Colorado's governor, New Hampshire's governor, Texas' governor, the junior US senator from South Dakota, and a former US senator from Pennsylvania, not to mention having lunch with a former governor of New Hampshire and a former US senator from Colorado. Life has also been challenging, I was present when my aunt Clara passed away and not long after that I received the letter saying I had been denied admittance to sit the New York bar. This resulted in me having to step down as trustee and pursue an LL.M. degree, which is one of the new requirements for sitting the bar. I also experienced the economic downturn, but applying to over 50 businesses and hearing no responses. Perseverance and no matter the odds, never give up, have become daily mantras. The following is a year in review:

27 November 2011 - graduated from University of Edinburgh with an LL.B. in Law

December 2011 - launched exploratory committee for a possible bid for the Colorado House of Representatives, Dist 61

January 2012 - began campaign manager for Bruce Hovde's re-election campaign for Delta County Commissioner, Dist 2

February 2012 - began campaign for Orchard City Board of Trustees

3 April 2012 - elected Orchard City's youngest Trustee

April - October 2012 I served on the Orchard City Board of Trustees. 

April 2012 - became campaign manager for Mark Roeber's Delta County Commissioner Campaign, Dist 3

May - August 2012 - maritime piracy legal researcher (intern) with Oceans Beyond Piracy, which is an NGO that provides research on the economic and human costs of piracy at sea, along with engaging stakeholders to find a governance based solution to countering piracy. Working included revising and enhancing counter piracy matrix, editing law reports, following pending criminal and tort cases, and providing information for diplomats, the military, and industry. 

September 2012 - begin LL.M. in Intellectual Property (IP) Law at the University of New Hampshire's School of Law (Franklin Pierce Center for Intellectually Property)

September 2012 - visited Portland, Maine; Kennybunkport, Maine; Boston, Massachusetts; Mount Washington, New Hampshire; the White Mountains of New Hampshire; Newport, Rhode Island

October 2012 - shook hands with President Obama in Portsmouth, NH; visited with Vice President Joe Biden in Concord, NH; talked constitutional law with form US Supreme Court Justice David Souter in Concord, NH; and gave words of encouragement to Mitt Romney in Manchester, NH.

October 2012 - travelled to New York City for the first time since I was 12 years old. Met up with my former Edinburgh flatmate and good friend, Fabio Pucci. We were flatmates for nearly 3 1/4 years. He was in NYC to present a paper at the Rockefeller. We went to the top of both the Rockefeller Center (Top of the Rock) and the Empire State Building. I stayed the first night in Harlem and the second in Times Square. Whilst walking in Central Park, I thought to myself Manhatten Island is crazy, fun, and looking at the buildings might injure my neck ;-) I also went to the cite of the World Trade Center attacks. I was disappointed that there were venders (including the National Commission) selling goods, profiting off of the dead of nearly 3,000. Fabio put things in perspective by saying the towers were about commerce and free enterprise, capitalism, and trade. "If there weren't venders selling goods and making money on the very site where so many died, then the terrorists would have won." 

October 2012 - sat the Multi State Professional Responsibility Exam (MPRE), this exam, along with the Bar Exam, is required to be admitted to practice law.

October 2012 - visit Montpelier, Vermont

October 2012 - elected as a "write-in" to the Board of Governors of the New Hampshire Student Bar Association 

November 2012 - hung out with the Supreme Court Chief Justices of New Hampshire, Texas, and New York; in addition to having lunch with former New Hampshire Governor Steve Merrill.

Safety: The fallacy of 'anti-guns proponents'

The post-Aurora shooting has seen Americans re-engage the debate over small-fire arm regulation. On 25 July 2012, President Barak Obama called for “leaving no stone unturned” in seeking measures to reduce violence in America. Mr Obama’s speech to the National Urban League in New Orleans featured a shift in the president’s policy position that gun laws in the US are sufficient.

Mr Obama said, “A lot of gun owners would agree that AK-47s belong in the hands of soldiers, not in the hands of criminals […] But I also believe that the majority of gun owners would agree that we should do everything possible to prevent criminals and fugitives from purchasing weapons, that we should check someone’s criminal record before they can [purchase a gun], that a mentally unbalanced individual should not be able to get his hands on a gun so easily. These steps shouldn’t be controversial, they should be common sense.”

Around 0038Z on 20 July 2012, at the Century-16 Multiplex Cinema in Aurora, Colorado, suspect James Eagan Holmes walks into cinema No. 9 wearing Kevlar body-armour and a gas mask, with a black costume to resemble comic superhero Batman’s arch nemesis. The film had been playing for half an hour before the suspect began shooting into crowd, after having thrown a smoke bomb into the cinema. Within 90 seconds police were on the scene. The suspect had killed 12 and injured 58 people, before being apprehended by police in the car park. None of the people killed were members of a minority group. Leaked reports show the accused was being treated for psychiatric care after having dropped out of the University of Colorado Medical School. The suspect had no previous medical condition or any confrontations with law enforcement, including moving-traffic violations.

 shooting a Thompson M1928A1

Contrary to the President’s thesis, the accused in the Aurora shooting had no criminal record, didn’t use an AK-47, and the leaked counselling reports indicate he was not “mentally unbalanced”. Seeing a psychologist or councillor is not an admittance of being “mentally unbalanced” and using such rhetorical comparisons is prejudicial and sends a negative message to those individuals in society who really do need professional help.

According to a Harvard Law research paper, nations with the highest small-arms regulations are not always the safest or less violent. The most-pro regulation nations include: Colombia, Somalia, Japan and Sweden.

The day before Mr Obama’s speech, a court in Sweden convicted a man on two counts of murder and four attempted counts for a shooting which took place in Malmo. The accused ignored the prohibition on firearms and had been linked to a dozen street shootings over the past two years. Somalia has a major problem with gun violence, even though the official government position is to ban firearms. Some scholars have implicitly suggested a low fire arm ownership rate gave rise to al Shabaab and piracy, which in-turn gave rise to high levels of illegal gun ownership. Colombia is a nation well known for gun violence, however much of this comes from drug cartels who target unarmed civilians. The UNODC reports Colombian illegal small-arms ownership is at an all-time high, which many citizens opting for a means to protection. Criminals seem to have a propensity to ignore the rule of law. By definition, a person is a criminal if they disobey the law established by the recognized government authority. Even Japan has its share of gun crime, most will recall the assassination of the mayor of Nagasaki in 2007, a pensioner going on a shooting spree in 2009, and organized gangs who annually shot members of the opposing mafia.

There is no research which shows taking away guns makes a society safer, less violent, or secure. People intent on doing harm, will do harm. Look at 9-11, why didn't we ban air planes, or make private ownership illegal? I don't recall a single gun being used on that day, yet nearly 3,000 people lost their lives.

The UK, which has pretty much banned guns (unless you own land and a title) still has gun violence, albeit not as high per capita as the US, but knife and bombing violence are way higher per capita in the UK. Stopping all bad people in society takes the rest of society to be vigilant, sense when folks need help, or being prepared to fire back when evil attempts to prevail - that includes both criminals and the government.

Research conducted by Oxford University reveals correlations between the type of homicide and the socioeconomic and subcultural status of the victim and offender. More research needs to be conducted into this area, as it is a highly charged hypothesis to suggest a person who feels poor, socially rejected, or outside their culture is more likely to commit an offence of the person resulting in a fatality. Mass murders in OEDC states see offenders who isolate themselves from their society.

Nations with strict firearm regulations don’t necessarily have lower homicide rates. Switzerland, which has 
one of the world’s highest firearm ownership rates (2/3 of every home has at least one firearm), also has one of the lowest overall homicide ratios at 1 > per 100,000. The US, which has a similar gun ownership rate as Switzerland, has a much higher overall homicide rate of 4.5 per 100,000. Larger nations tend to have different social problems, but also Switzerland requires a large percentage of its male population to have spent a year in the military, in addition to this, much of the nation is fairly rural and research has shown murder rates are much lower in rural environments. (See UNODC homicide statistics)

A paper looking at the urban v rural divide for gun violence in and around Washington, D.C. shows that nearly 70% of all gun deaths in both areas were suicides, which are illegal in the US. It should be noted, rural suicides by guns were 10% higher in the countryside, suggesting an opportunity for medical professionals and educators to develop mechanisms for intervening. While the likelihood of being murdered in an urban area of Washington, D.C. was 50% greater, when compared rural areas. When examining other parts of the US, the gap between urban murders and rural murders was well over two-fold. Accidental shootings with a rifle or shotgun were greater (3% of total) in rural areas, accidental shootings with handguns where significantly higher in urban centres. Homicides are greater when the offender was drinking or doing drugs, vulnerable, depressed, and subject to violence or mental abuse.

Recently, Elliot Fladen with the Colorado Springs Gazette made the comparison with the war on drugs resembling the war on guns. His conclusion is that just as anti-drug laws didn’t prevent drug dealers, users, or abusers; gun control laws won’t stop black market dealers, offenders, or individual’s intent on doing harm.

Many conclusions may be reached from noting statistics and arguments from the post-Aurora shooting debate, but one point is certain – more gun regulations and laws is not the answer to America’s struggle to interdict violent criminals. 

Thoughts on revolutions, violence and civil resistance

This week saw US President Barak Obama on The Tonight Show with Jay Leno talking about the re-election campaign, Libya, the economy et cetera. Mr Obama said, “[...] it only cost us a billion dollars” to kill Libyan leader, Col Muammar Gaddafi, the county’s dictator of the past 42 years. [1] A billion USD in taxpayer resources seems like a might high figure to eliminate one person?

Yesterday, Andrew McCarthy, writing for the National Review, published an article entitled – ‘Our Libyan Adventure: Gaddafi’s dictatorship was preferable to an Islamist Libya’. [2] This prompted a series of questions – firstly, should the US have been involved in Libyan affairs. Secondly, should the Obama Administration have dedicated tax dollars to a conflict on foreign soil? Thirdly, did the Obama Administration usurp the power of Congress as protected under Art I, § 8 of the US Const? Fourthly, was supporting a Libyan revolution in the best interest of the citizens of the US? Fifthly, should foreign, third-party states, be involved in the domestic affairs of a sovereign nation state?  Lastly, must revolutions involve some sort of violence, or can non-violent, civil resistance be sufficient to cause a change in governments?

The last question seems very intriguing, must all revolutions involve violence? What is a revolution? Thomas Jefferson viewed a revolution as when the governed no longer consented to the government. In otherwords, the social contract must be breach by the government to legally justify the governed to rescind the contract and dissolve the bands with tie the two together. If the governed proclaimed such grievous contractual violations of rights and liberties to their government and their government agreed and either dissolved the government voluntarily or renegotiate the terms of said social contract, and then there would be no need for a revolution, a peaceful change of government would have occurred. This is symbolically what happens in the US when a new president is sworn into office, succeeding another of an opposing political party, and the peaceful transfer of power is achieved.

What happens if a leader refuses to give up power? Worse yet, that leader has the backing of the military, the ruling aristocrats, and the religious clerics? When said leader breaches the social contract by no longer having a regard for the welfare of prosperity of the citizenry, legislating unjust laws, and the treasonous acts of the government become self evident, then the people have an obligation to dissolve the social contract and create a new government with the consent of the governed. If that government refuses to give-up power peaceably, then a revolution has begun. Despots, dictators, tyrants tend not to relinquish authority without a fight. Sometimes a little tear gas or consenting to demands with overt a full blown revolution and save the fight for another day. Other times the revolutionary movement begins to grow, protesters take to the streets, mobs break-out, sometimes the revolutionaries are peaceful, other times they are not.

The level of violence may differ from person to person, reader to reader, and survivor to survivor. A gun shot to a passing tourist may seem horrific, compared with massive war which lasts six years. One type of revolutionary may use arms and force to invoke the terms, whereas another type of revolutionary may be pious, a pacifist, engaging in “non-violent” civil resistance. The strategy of the two revolutionaries may be similar, to encourage the government to quell and suppress the uprising with the full force of law, perhaps undue force in enforcing civil order and rest.

In an era of global media, revolutions are less violent, but there are going to be some forms of major resistance and struggle in order for a revolution to be a revolution. Leaders on the revolutionary side have learnt how to be "pacifists" and compel the international community to rescue the people by formal or informal measures – eg military and/or diplomatic pressure. This pressure can be very difficult to overcome, especially if the leader is hedging all bets that the military or aristocrats in society will continue to support the government. The international community views such actions as a call for humanitarian intervention or pre-emptive self-defence. The argument is logical, if a leaders thinks nothing of killing his/her own citizens, then they probably won’t think twice about killing the people of another nation. It can be difficult to persuade other nations to become involved in the domestic affairs of state. There needs to be a foreign-national interest. For example, Italy adamantly opposed all military intervention in Libya, as Libya was the largest supplier of crude oil to Italy. However, once it appeared the current regime (Col Gaddafi) couldn’t survive, then all bets were off and it became time to look for winners and losers and back the revolutionaries who would be most sympathetic to Italian-Libyan relations and business.

I don't really consider a change a revolution, as a revolution means one side objects adamantly. This is why political scientists distinguish between social and political revolutions. A leader of a social revolution would be called a ‘change agent’. Dr Martin Luther King, Jr would be described as a change agent, not a revolutionary. A revolution is about the consent of the governed and the US didn’t change governments or administrations period known as the Civil Rights Movement. There were elements of the Movement which embodied a political revolution, such as bloody Sunday in Alabama. While the sit-ins and protests were a non-violent form of civil resistance, the reaction of the government authorities is what the revolutionaries were banking on for success. Images of African Americans being pulled out of Soda Fountains by white cops, police shooting at peaceful demonstrators, and the National Guard being used to enforce segregation were broadcast around the globe and the American states. How "violent" does something needs to be to be "violent"? Newspapers published photos of such atrocities and pretty soon the social change had occurred to allow for the politics to follow suit.

Revolutions are not merely won by the governed challenging the government authority, they usually involve foreign money and influence. In Egypt (2011), India (1947) and South Africa (1994), the US funnelled millions and millions of taxpayer resources into military aid, covert ops, political and diplomatic pressure, bribes, shaping media perception, logistics, communications, and allied support. Many Americans view these as good uses of tax dollars, as the regimes were replaced with ones favourable to the US and American business. The US has also failed miserably in attempting to influence revolutions using the aforementioned tactics; these include: Cuba, Iran, Guatemala, Congo, Brazil, Iraq, Chile, Argentina, Cambodia, and Venezuela. In foreign affairs a government strategies to advance their national interests abroad, sometimes the plan works and other times is becomes a deficit write-off under the discretionary budget heading.

In 1776, it was considered by the fledgling, King Louis XVI, in the French national interest to provide naval and financial support to the American rebels, in their revolt against the European hegemonic power of Great Britain. As someone once said, “The enemy or your enemy is your friend.” Should France have made such an investment, especially in light of the recession in Europe at the time? Probably not, as history has shown us that that is what contributed to the French Revolution. Foreign wars are usually economically good at first, but become a drain on the domestic economy when they continue unresolved for a substantial period of time. It should also be noted that The Netherlands and Spain also provided financial and political support for the American colonists. Both kingdoms probably looked to the US as a future trading partner, along with enjoying seeing the most powerful military in the world take a beating from some backwoods farmers across the Atlantic.

Revolutions are dangerous and should not be widely encouraged, but there are times which demand for action to be taken, to cut the stings which attach the people to those who reign over them. The people are then free to choose a new government, by delegating rights and responsibilities to an authority and exchanging ultimate freedom and liberty for the rule of law and an ordered society.

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^[1] Obama, Barak. ‘Interview with Jay Leno’, televised on NBC’s The Tonight Show: 25 Oct. 2011 < http://www.nbc.com/the-tonight-show/video/tuesday-october-25-2011/1364618/> accessed 26 Oct. 2011.

^[2] McCarthy, Andrew C. “Our Libyan Adventure: Qaddafi’s dictatorship was preferable to an Islamist Libya”. National Review: 27 Oct. 2011 <http://www.nationalreview.com/articles/281414/our-libyan-adventure-andrew-c-mccarthy?pg=1> accessed 28 Oct. 2011.