Prof Sandeep Gopalan @drsgopalan-blog - Tumblr Blog

Conflict between Court and President

President Trump has lashed out at the judiciary a number of times - both as candidate and as president. The most recent instance drew an apparent rebuke from Chief Justice Roberts. I have a new article in The Hill analysing the kerfuffle:

Trump’s acerbic words merit criticism, but his public questioning of judicial opinions does not undermine judicial independence. Equally, criticism of Roberts is misplaced. Here’s why.

Trump is not the first president to criticize the judiciary or be accused of acting in an autocratic and unconstitutional manner. That dubious distinction applied even to as great a president as Abraham Lincoln. During the Civil War, Lincoln suspended the writ of habeas corpus and was roundly condemned for acting as a despot. Things came to a head in the case of Ex Parte Merryman.

In 1861, Maryland legislator John Merryman was arrested on suspicion of being involved in a conspiracy and detained at Fort McHenry in Baltimore. His lawyers petitioned for his release and Chief Justice Roger Taney issued a writ of habeas corpus. Asked to explain Merryman’s detention, fort Commander George Cadwalader refused to appear and instead wrote explaining that the president had authorized military officers to suspend the writ. When Taney sought to arrest the commander for contempt, the marshal was not allowed into the fort.

Taney then issued an opinion that there was “no ground whatever for supposing that the president, in any emergency or in any state of things, can authorize the suspension of the privilege of the writ of habeas corpus, or arrest a citizen except in aid of the judicial power.” Notably, Taney did not order Merryman’s release or impose any action against Cadwalader. He tamely acknowledged, “I have exercised all the power which the Constitution and laws confer on me, but that power has been resisted by a force too strong for me to overcome.” A copy of his ruling was sent to Lincoln, who ignored it.

The president’s silence was short-lived. Lincoln used his July 4th address to Congress to fire back at Taney: “Are all the laws but one to go unexecuted, and the government itself go to pieces lest that one be violated?”

Read the whole thing here.

#judiciary #donaldtrump ruleoflaw immigration courts

APEC Summit deadlock

The APEC Summit ended in a deadlock following conflict between the US and China. I have a new article in the Khaleej Times about the fall-out, emphasizing the need for Asian countries to determine their own destiny without getting caught up in great power competition. From the piece:

... it is real dollars and cents that do the talking. And Asian countries desperately need massive investments to build infrastructure as traditionally rural populations make the transition to an urban, consumerist lifestyle. When faced with a choice between America's words about independence and China's dollars, most countries will behave in the manner of Pakistan and Sri Lanka: gladly accepting China's money and ignoring homilies from the West.

Moreover, Asian countries are not oblivious to China's substantially greater engagement in the region. In contrast, President Donald Trump signalled his intentions by skipping the Asian summits and sending his vice-president instead.

For all the talk about a pivot to Asia since the Obama presidency, the reality is that the United States' approach to the continent is characterised mostly by indifference. There has been no shortage of words - from the new characterisation of the Indo-Pacific, to the desire to create a Quad (Australia, India, Japan, and the US) to balance China's rise - but concrete investments have been underwhelming.

For instance, the Secretary of State, Mike Pompeo, announced a renewed commitment to the Indo-Pacific in July this year with a puny $113 million investment to develop digital economy, infrastructure, and energy.

In contrast, China promised $4 billion to tiny PNG alone; its investments in other Asian countries are truly staggering: the China-Pakistan Economic Corridor is worth over $62 billion; the China-Myanmar Economic Corridor is budgeted at over $2 billion; in Bangladesh, China has promised about $31 billion in spending on a variety of projects; trade between Vietnam and China exceeds $100 billion per year in 2018; and BRI investments in Malaysia are about $34 billion.

Read the full article here

#apec #geopolitics #cpec #cmec #png #indianocean #internationaltrade

Russia Asks Court to Dismiss DNC’s Lawsuit over election interference

The DNC had filed a lawsuit in the SDNY alleging that Russia, Wikileaks, etc conspired with the Trump campaign to influence the 2016 election in favour of Donald Trump. Now The Hill reports that Russia has sought to get the lawsuit tossed:

the Russian Ministry of Justice penned a letter last week to the State Department and a judge in New York's Southern District arguing that the lawsuit violates the United States’ Foreign Sovereign Immunities Act.

...

In addition, the Russians argue that the DNC lawsuit raises a "political question" that is better handled on a diplomatic and legislative basis than through the courts, the Post reported.

Russia warned that if the lawsuit proceeds, the National Security Agency and other spy services in the U.S. could be exposed to litigation in response, according to the report.

I had analysed the DNC’s case in an article for the Hill:

The Russians supposedly had two motivations for this conspiracy — first, Vladimir Putin’s intense dislike of Clinton, stemming from his belief that she was behind massive protests in Russia in December 2011, and second, Trump’s perceived admiration of Putin. The DNC claims these motivations provided the “common purpose” for the conspiracy and that WikiLeaks founder Julian Assange was part of the conspiracy because of his “long history of conflicts” with Clinton and belief that her victory would be problematic.

The problem for the Democrats is that there is virtually no factual basis for this conspiracy between Trump and the Russians. The complaint relies on public information about vague business dealings that it claims provided “fertile ground for a conspiracy.” In addition, the DNC’s evidence is extremely weak — mainly, comments made by Trump about Putin, such as a 2007 remark that Putin is “doing a great job in rebuilding the image of Russia”; a comment in 2008 that he liked and respected Putin, who “does his work well, much better than our Bush”; and Trump’s 2014 characterization of Putin’s invasion of Ukraine as being “so smart. ... And [Putin] really goes step by step by step, and you have to give him a lot of credit.”

Taken together, the elements of conspiracy outlined in the lawsuit simply are not satisfied. The stray comments by Trump aside, there is no evidence of intent by the campaign to enter into some sort of agreement with Russia. Equally, the mere possibility that Trump’s election might advance Russia’s interests is insufficient evidence for a conspiracy. The link between the acts alleged and their ultimate goal — that is, to elect the Republican candidate — is simply too weak.

Next, the DNC’s claim that the Trump campaign violated the RICO statute also is likely to fail. The lawsuit alleges that “Trump associates, WikiLeaks … directed, induced, urged, and/or encouraged Russia … to engage in this conduct and/or to provide … DNC’s trade secrets, with the expectation that WikiLeaks and Assange would disseminate those secrets” to help Trump win.

The problem: a Department of Justice indictment against 13 Russian individuals and entities in February 2018 for election interference appears to contradict this allegation.

I also wrote about the DNC lawsuit in an article published in The Conversation available here. It is hard to see the case against Russia succeeding.

#russia #election interference #dnc #donaldtrump

May leadership challenge

Dominic Raab, who resigned as Brexit Secretary last week and triggered another round of resignations from in the interminable conflict over Brexit appears to be angling to replace Theresa May as Prime Minister. He delivered a strongly-worded message to the PM asking her to stand up to the bullying:

“If we cannot close this deal on reasonable terms we need to be very honest with the country that we will not be bribed and blackmailed or bullied and we will walk away. I think there is one thing that is missing and that is political will and resolve. I am not sure that message has ever landed.”

The former Brexit Secretary spoke out in an interview to the Sunday Times asking the “prime minister to walk away from the talks rather than submit to the “predatory” behaviour of “dark forces” in Brussels.”

#brexit #dominicraab

May resignation odds

Theresa May has been slammed by seven resignations following the conflict over the UK’s withdrawal from the European Union. Senior cabinet figure, and the key person for exit negotiations, Dominic Raab, the Brexit Secretary resigned last week. This was after May tabled a withdrawal agreement that did not please the pro-Brexiteers in her party.

Now the question is how long May can survive. High-profile Tory back-benchers are plotting against her and the odds of her survival look slim. One outlet reports that “She is odds-on at 4/5 not to see out the year, according to Betfair, who also install Home Secretary Sajid Javid as favourite at 6/1 to succeed Mrs May if she resigns.”

High-profile Tory leaders such as Boris Johnson had resigned before this latest conflict, and they are waiting in the wings to strike at the right moment. I would bet on continuing turmoil as May’s opponents don’t seem to have a coherent alternative.

#brexit #theresa may

New article on Facebook regulation in The Hill

I have a new article arguing for greater regulatory oversight of Facebook and other social media platforms predicated on a fundamental right to privacy. Such a right is recognised in the EU and several countries; it has to trump Facebook’s interests in selling targeted advertising:

Facebook has betrayed the trust of its users, and unfortunately, many users appear not to care — evidenced by the relatively low number of defections from its customer base despite these high-profile scandals. Even if those who do care pursue class action lawsuits, or complain to regulators, that may not be sufficient to tackle the scale of the menace. The problem is that Facebook’s operations have consequences for non-users too — sometimes horrific, as in the case of the Rohingya. So, it is no longer acceptable to leave it to a contractual model of regulation. There are costs imposed on people who are not parties to the contract that justify state intervention.

And that intervention has to be predicated on a fundamental right to privacy. Anything less is a cop-out.

There are good international models. The European General Data Protection Regulation acknowledges that protection “in relation to the processing of personal data is a fundamental right.”

You can read the full article published in The Hill here.

#facebook #privacy #regulation #hate speech #fakenews

Brexit and the New Resignation

Jo Johnson, brother of Boris Johnson, and minister of transport in the Theresa May government has resigned in protest over the Brexit negotiations. This follows months of conflict in the cabinet and the conservative party over the shape of a deal with the EU post-Brexit. Johnson claims, "I think it's really important that the public is given a chance to confirm that this indeed the extraordinary basis on which they want to leave the EU.” He is advocating for another referendum - apparently the UK needs to keep voting until he gets his preferred outcome. This seems to be the position of the Remain camp - they are all clamouring for another vote. What happens if the vote is to leave again?

Following Johnson’s exit, there are likely to be more resignations before Brexit is officially concluded. The politicians’ inability to conclude a sensible Brexit is raising the odds of a no-deal Brexit. That will likely herald a period of political and economic instability in the UK - hurting everyone.

#brexit

Fake News and Mob Violence in India, Mexico

The BBC has a piece about people being killed because of fake messages on WhatsApp about child kidnappings. I’ve written previously in the Khaleej Times about lynchings conducted in India by frenzied mobs angry about rumours of active child lifters:

At least 25 people are reported to have been killed by angry mobs over the last three months in India - primarily in the central and northern regions. The deadly violence was animated by fears about child abductors. And the violence is magnified by a distinctively cyber-age dimension in a milieu of abject ignorance. Social media platforms such as WhatsApp have been used to foment apprehensions about suspicious individuals associated with child-lifter gangs, and resultant mobs have targeted people with deadly consequences.

The latest victim is a woman who was killed on Friday after being suspected of snatching children. Her crime? She was allegedly spotted roaming around villages where there were rumours about children being snatched.

As if the child-lifting hysteria is not enough, recent mob lynchings have also occurred at the hands of Gau Rakshaks - zealots acting in the name of cow protection. A person was lynched last Friday after being suspected of smuggling cows for slaughter. The cow protection gangs are apparently acting in the name of religion - claiming that cows are sacred to Hindus and need protection from those of a different persuasion who eat beef.

What do these have in common? Gross ignorance, barbarism and a manifestly inadequate law enforcement system.

My other articles on the topic:

https://www.khaleejtimes.com/editorials-columns/tackle-ignorance-distrust-to-end-mob-lynching

https://www.khaleejtimes.com/editorials-columns/can-we-trust-facebook-to-keep-out-hate-speech

#whatsapp #mob violence #fake news

RBI Governor to Resign?

The Reserve Bank of India has been engaged in a protracted conflict with the Modi Government and there are reports that the Governor, Urjit Patel’s resignation is impending:

The RBI has been at loggerheads with the government over three demands: transfer a higher portion of its reserves to the Centre to keep the fiscal deficit in control; inject more liquidity into the system to stave off a possible blowout among housing and finance companies; and relax the norms for prompt corrective action (PCA) and income recognition of banks.

India’s banking sector has serious problems - exemplified by the PNB scam I wrote about previously in an article published by the Oxford Business Law Blog:

The PNB scam should serve as the impetus for immediate reform of India’s outdated model of banking. For too long, these public sector white elephants have been playing fast and loose with public money and enabling crony capitalism under the spurious claim that they exist for the public good. Non-performing assets (NPAs) at Indian public sector banks are in excess of $135 billion this year. Too many of these banks seek to serve mutually exclusive masters – faux welfarism (e.g., spurious loans to small farmers to appease their political benefactors etc., under the guise of providing banking to the poor) versus commercial profit. Due to this contradictory mandate, they have been utilized as wealth transfer mechanisms – from the average citizen to privileged constituencies – by a succession of political actors.

Notably, recent months have witnessed conflict between the Trump administration and the US Fed as well. The RBI’s masters could learn about Central Bank independence from the US experience.

#centralbank #federal reserve #RBI urjitpatel pnbscam

Facebook and Human Rights in Myanmar

Facebook commissioned a report by Business and Social Responsibility to examine whether it could do more to prevent its platform being used to commit human rights abuses in Myanmar. I have a new article in the Khaleej Times analysing the report and recommendations:

In this milieu of hate, and 20 million potential outlets to disseminate poisonous messages, Facebook had no staff on the ground. It was relying on a handful of staff to cull posts and outsourced the job of policing to unpaid others who were supposed to implement "Community Standards."

The consequences were predictable. Facebook did not do enough to prevent incitement of offline violence against vulnerable groups. So, what's Facebook to do to prevent its platform from being used as a coordinating ground for ethnic violence? The BSR report makes several recommendations. The important ones are considered below.

First, BSR recommends a "stand-alone human rights policy." This is meant to aid the formalisation of a structured approach to human rights across the company and drive its strategy. Second, Facebook is asked to publish periodic human rights updates. Third, commit resources to building a team of Burmese-speaking staff that is versed in local culture and can implement the community standards. Fourth, the company ought to be stricter in its interpretation of what constitutes the threat of credible violence, particularly in relation to false information. Fifth, the company should partner with local NGOs and others to police the application of its community standards. Sixth, it should invest in AI and machine learning to identify and remove harmful content in a timely manner. Seventh, Facebook should introduce features designed to enhance the digital literacy. Finally, Facebook is asked to partner with agencies to create and disseminate "counter hate speech" content.

Read the whole thing here

#facebook #human rights #hate speech #myanmar #artificial intelligence

Lawsuit by Migrant Caravan

I have a new article about the lawsuit filed by Honduran citizens in the migrant caravan heading to the US border. They are alleging violations of the 5th Amendment. From the article in The Hill:

The suit claims that Trump is violating the Flores Agreement through his administration’s practice of housing migrant children in tents. The lawsuit’s lead plaintiff, Maria Doris Pineda, complains that indefinite detention in tents is “unconstitutional conduct by our president.” But Trump is not Pineda’s president; she is not a U.S. citizen.

It also is not clear what standing Pineda has to sue or enforce the provisions of the Flores Agreement. As the D.C. District Court stated in Berlin Democratic Club v. Rumsfeld (1976), “When the non-resident alien does not make application under a statute to the United States for certain action, or is not subjected to its courts, but is harmed in his own country, he cannot and should not expect entitlement to the advantages of a United States court.”

Pineda has no “contact with the United States”; she has not been “thrust into American courts” and has not been “denied application for a benefit” provided by U.S. law. Therefore, she has no basis for “expectation or hope” that she could utilize that legal system for her benefit. Crucially, the United States has not imposed its law on Pineda, and she is free to seek asylum elsewhere, including in Mexico, which she must cross first. It is her choice to decline asylum under Mexican law and instead seek asylum in America. This choice does not beget an entitlement to the protection of U.S. courts.

Read the whole thing here

#asylum #immigration #constitutional law #dueprocess

US-China Tensions in the South China Sea

There is no sign of tensions between the US and China easing over dominance in the South China Sea. In the latest episode:

China bluntly told the United States to stop sending ships and military aircraft close to islands claimed by Beijing in the South China Sea, during talks that set the stage for a meeting between President Donald Trump and President Xi Jinping later this month.

The U.S. pushed back Friday, insisting it will continue to “fly, sail and operate wherever international law allows.”

I’ve written about the competition between the two sides and the potential dangers to regional security in an article in the Asian Age:

China’s escalation will prompt responses from the US and India. And China’s significant deficits relative to the US will mean that it will have to continue to invest substantially both to protect its new investments and to attain parity. Given its significant asymmetry relative to both China and the US, India’s posture can only be to put China’s assets at risk in the event of conflict rather than attaining dominance. Its most pragmatic strategy would be to dump anachronistic colonial hangover policies and embrace democratic states such as the US and Australia as closer security partners. Coevally, India’s foreign policy doctrine must evolve to better relationships with democratic states by shedding baggage and mimicking China’s commercial approach.

#indian ocean #geopolitics #south china sea

Attorney General Resigns

The Attorney General, Jeff Sessions, has resigned shortly after the midterm election results have been released. He did not resign of his own volition - President Trump forced him out. As widely reported, there has been tension between Trump and Sessions, primarily over the Russia investigation:

"I don't have an attorney general," Trump told The Hill in an interview with that news site in September.

But the abruptness of the move, less than 24 hours after the close of the polls Tuesday, stunned Trump's closest allies both inside and outside of the White House.

"I didn't know this was coming, especially so soon after the midterms," one source said on the condition of anonymity.

There has been condemnation of the sacking. The real implications will probably unfold after the acting AG’s intentions with regard to Bob Mueller are fully revealed.

#russiainvestigation #bob mueller #donaldtrump #ruleoflaw #attorney general

Kevin James’ Murder an ‘honour killing’: Court

The Additional Sessions Court in Kottayam, Kerala has reportedly characterized the brutal murder of Kevin James as an honour killing. Although this means that the trial is expected to be completed within 6 months, the murder does not meet the definition of an honour killing. I examined this issue in an article for the ABC some months ago:

The Indian media has been in a froth since the murder, labelling it an "honour killing". To be clear, this is not an honour killing — that reprehensible label, properly used, refers to a killing of a person (typically a woman) by her own family for bringing dishonour or disrepute on the family. The family typically kills the woman for committing a transgression such as adultery, elopement, etc.

But Kevin Joseph's murder is not an "honour killing". He was killed not by members of his family, but allegedly by the close relatives of his new wife.

Fundamental reforms are necessary if such incidents are to be prevented:

Alongside a campaign to educate parents that their daughters are not property, and to empower women, the marriage registration process must specifically ask women whether they consented to the union of their own free will. The registrar should be mandated to certify the bride's statement to this effect — without the parents being present. If the registrar has any doubts about the bride's consent, he should refuse to register the marriage. This will reduce opportunities for coercion and empower women.

Significant policing reforms are also necessary. People should be able to report crimes from their mobile phones to promote accountability. Body cameras should be mandated for all police officers — this is not expensive and will check corruption, inefficiency, under-reporting of crime and evidence destruction.

Statutory changes should include an independent annual audit of police performance, higher minimum eligibility qualifications for entry level police, security of tenure for officers and structural protections to ensure independence from political involvement.

#kevinjames #honour killing #murder #kerala #women's rights #equality

Abolition of Birthright Citizenship

I have a new article in the Khaleej Times on the Trump Administration’s proposal to abolish birthright citizenship. My point is that depriving the children of legal migrants the benefit of birthright citizenship has no effect on illegal immigration.

To be sure, many are uncomfortable with the idea that law-breakers should obtain valuable benefits from such illegality. Hence the resonance of Trump's idea for abolishing birthright citizenship and the message that "We will not allow our generosity to be abused by those who would break our laws, defy our rules, violate our borders, [and] break into our country illegally." However, the abolition of birthright citizenship punishes innocents. For instance, many legal immigrants who are on work permits or other visas birth children in the US. Currently, such children become citizens by birthright.

If Trump's plan attains fruition, only the children of citizens or permanent residents would be eligible for citizenship and tens of thousands of work permit holders - many of whom are from India - would be hit. Moreover, given the massive backlog of permanent residency applications from Indian nationals, Indians would be particularly badly affected. They would be deprived of many benefits like reduced tuition fees for education. Crucially, hurting such children does nothing to stop illegal immigration.

Trump is right to seek a fix for the problem of illegal immigration. However, innocent legal migrants and their children should not become casualties in that fight. Even if a constitutional amendment is attempted to remove birthright citizenship, it should be restricted to those who enter illegally and children of legal migrants should be protected. Legal migrants pay taxes, contribute valuable skills, commit few crimes, and add to America's rich tapestry. Their innocent children should not be punished on account of illegal activity by others.

#citizenship immigration constitutional law migrants

Trump’s Plan to Abolish Birthright Citizenship: Constitutional Challenges

President Trump has proposed to abolish birthright citizenship by way of executive order. I analyse the legality of the proposal in my column in The Hill:

...the president is not alone in calling for abolition of citizenship obtained by birth; arguments have ebbed and flowed throughout U.S. history, in tune with anti-immigrant sentiment. Calls to abolish birthright citizenship intensified, for example, in the 1990s and in the aftermath of 9/11.

... any such executive order likely would be declared unconstitutional, making the president’s promise futile. Here’s why: Birthright citizenship has a long history in the United States, upheld by Supreme Court rulings.

Unlike “jus sanguinis,” or citizenship that stems from a blood parent who is a national, citizenship by birth is a creation of law and conferred upon anyone born within the jurisdiction. Throughout its history, the United States has conferred citizenship through both means.

Unsurprisingly, birthright citizenship came to America with English common law. Justice Horace Gray emphasized the need to interpret the legal meaning of “citizen” for constitutional purposes in the 1898 case of United States v. Wong Kim Ark. That case concerned a San Francisco man born to Chinese nationals whose citizenship status was called into question when he returned from a trip to China. Ark had never renounced ties to the United States or acquired conflicting allegiance to China, and the Supreme Court’s 6-2 ruling in his favor established precedent in interpreting the 14th Amendment’s citizenship clause.

The court observed that under English law, citizenship was by “birth within the allegiance, also called ‘ligealty,’ ‘obedience,’ ‘faith,’ or ‘power’ of the king.” Under the principle, “all persons born within the king’s allegiance and subject to his protection” were citizens.

... The court’s ruling in the Ark case does not seem to exclude the children of illegal immigrants from their birthright of citizenship. Justice Gray was clear that the Civil Rights Act and the 14th Amendment mandate this conclusion.President Trump cannot undo these principles by executive order.

#birthright citizenship #immigration #constitution #supreme court #jussoli

Tim Cook’s Views on Privacy Just Cheap-Talk?

Tim Cook has sought to project an image as a privacy advocate and attracted attention with a strongly worded speech in Brussels last week. I analysed his remarks in an article for the Khaleej Times:

the Apple CEO might be engaging in cheap talk. Unlike many of its tech rivals, Apple's business model is not currently heavily reliant on collecting tonnes of user data. That is the province of Facebook, Google, and other players. And Facebook, in particular, has endured an annus horribilis following revelations about Cambridge Analytica and other scandals. Similarly, Google has been under the microscope from lawmakers in the United States about its privacy practices and targeted advertising of users. Therefore, Cook, recognising that regulation may be on the horizon might be sticking the knife into competitors knowing that they have more to lose from strict data protection laws. He might also be engaging in some low-cost virtue-signalling by seeking to differentiate Apple from other tech companies.

Nonetheless, Cook's warnings should not be ignored. Instead, they should be treated with the seriousness they merit and the same spotlight should be shone on Apple. Even if Apple has not experienced publicly disclosed data leaks like Facebook and other companies, the reality is that Apple devices are probably the most invasive data collection devices known to man. As anyone who owns an iPhone can attest to, the device is effectively an ankle bracelet - virtually a constant appendage of the body. It collects and transmits information even when it is not on. And most people take it everywhere - even the bathroom.

#privacy #apple #timcook #bigdata #surveillance #facebook

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