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FLYING THE UNFRIENDLY SKIES OF VACCINE MANDATES

Earlier this year, we discussed two decisions from the US Supreme Court that had an impact on the vaccine mandates put into place by two different federal agencies.    In one decision, Biden v. Missouri, “the Supreme Court decided that the Secretary of Health and Human Services had the power, delegated to him by Congress, to require healthcare workers to submit to a Covid-19 vaccine.” Conversely, in  National Federation of Independent Business v. Department of Labor, Occupational Safety and Health Administration. the Court held that the Department of Labor, through OSHA, did not have the authority to order private employers to mandate their employees receive a Covid-19 vaccination. 

In one case, it was among the powers delegated to HHC by Congress which allowed it to provide for a vaccine mandate to the healthcare industry; in fact, other vaccines have been required of nurses, doctors and other medical personnel in the past.  In the other, as the Court stated, “(p)ermitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.” 

Shortly after the National Federation decision, the Biden Administration dropped its “emergency rule that required all large private employers to require Covid-19 vaccines or regular tests…(t) he Occupational Safety and Health Administration (OSHA) decided to drop the policy ‘after evaluating the [Supreme] Court’s decision,’ the Labor Department said.”   

In both August and September of last year, we discussed whether private employers have the right to mandate vaccines for their employees.  “In general, the practice is legal, so long are employees can seek either a medical or religious exemption.”  

In February of this year, the Fifth Circuit gave a warning to employers who do not provide their employees with a fair and reasonable religious exemption policy.  The case is limited to a particular set of circumstances; but a review of the case will give hope to those facing an onerous and over-burdensome process in securing a vaccine exemption on religious grounds.

Sambrano v. United Airlines, decided in February, was brought by a group of employees who had asserted religious exceptions to the airlines’ vaccination mandate.  According to the decision, “a United employee could apply for an exemption from the vaccine mandate for either religious or medical reasons. But at a town-hall meeting, United’s CEO warned that not many exemptions would be granted and remarked that any employee who ‘all the sudden decid[ed],”I’m really religious”‘ would be ‘putting [her] job on the line’ by requesting an accommodation. Once an employee requested a religious exemption, United would ask the employees about their past vaccinations, the use of stem cells in those vaccines, and ‘why receiving such vaccines or medications were not a violation of the employees’ “sincerely held [religious] belief”’ on those prior occasions. United also asked why the employees’ religious beliefs prevented them from receiving the Covid-19 vaccine ‘but not taking other types of medicine.’ Some employees were asked to provide a letter from a pastor or other third party attesting that the employee actually held religious beliefs.” 

As harsh and intrusive as this questioning sounds, it is within the employers’ rights under federal law to make these inquiries.  We noted in August that while “the employer ‘should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief,’ according to the EEOC, ‘however, if an employee requests a religious accommodation, and an employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice or observance, the employer would be justified in requesting additional supporting information.’”

The issue in Sambrano revolves around the steps United took with their employees who were granted a religious exemption.  “After United would determine which employees were sufficiently religious, it provided those employees with an ‘accommodation.’ The employee could keep her job, but could not go to work, would not be paid, and would not receive company-paid benefits. To go back to work, the exempt employee had to get the Covid-19 vaccine. And if the employee would not, she could instead wait it out and start work again after the pandemic ‘meaningfully recedes’ (which United guesses could be another ’72 months’ or so).”

As if these measures weren’t obnoxious enough, “United’s campaign was not limited to forcing employees to choose between the vaccine and indefinite unpaid leave. For example, in August 2021, United began sending postcards to unvaccinated employees stating that United had not received evidence of their vaccination and they needed to get vaccinated to avoid being ‘separated from United.’ Plaintiffs credibly contend that United sent postcards rather than letters in order to broadcast employees’ unvaccinated status to family members and enlist those family members in coaxing employees to receive the vaccine.”

The lower court had denied a preliminary injunction to the unvaccinated employees who had received religious exemptions from United, and were subjected to the terror tactics described above.  According to the Fifth Circuit,  “(t)hough the district court noted that plaintiffs’ claims were ‘compelling and convincing,’ it ultimately concluded that plaintiffs could not establish irreparable injury,” and did not stop United from continuing their policies during the pendency of the lawsuit.  On this narrow basis, the Firth Circuit reversed the lower court, and sent the case back to the District Court for a further review.

“Plaintiffs are being subjected to ongoing coercion based on their religious beliefs. That coercion is harmful in and of itself and cannot be remedied after the fact,” the Fifth Circuit wrote.  “Properly understood, the plaintiffs are alleging two distinct harms…(t)he first is United’s decision to place them on indefinite unpaid leave; that harm, and any harm that flows from it, can be remedied through backpay, reinstatement, or otherwise. The second form of harm flows from United’s decision to coerce the plaintiffs into violating their religious convictions; that harm and that harm alone is irreparable and supports a preliminary injunction.”

Though the court itself was careful to limit their ruling, the Fifth Circuit was nonetheless very clear in their finding of an undue burden placed by United on the exercise of their employees’ exercise of their religious freedom under the First Amendment to the US Constitution.  “This court and the Supreme Court have held that ‘[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury’…under both the constitutional and statutory provisions a plaintiff demonstrates irreparable harm by alleging a violation of her rights to freely exercise her religion.”  

“Here we are considering only whether plaintiffs have shown substantial likelihood of irreparable injury. We believe that they have. United has presented plaintiffs with two options: violate their religious convictions or lose all pay and benefits indefinitely. That is an impossible choice for plaintiffs who want to remain faithful but must put food on the table. In other words, United is actively coercing employees to abandon their convictions.”

While the Fifth Circuit ultimately sent the case back to the lower court, the language quoted above is clear and unmistakable.  An employer who does not allow for a fair opportunity for an employee to assert a religious basis to refuse the vaccination will face that employee in court.  And more likely than not, that employer better be ready to pay damages.

Judge John Wilson (ret.) served on the bench in NYC.

Illustration: Pixabay.

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Quick Analysis

Taliban Troubles From Biden’s Failed Retreat

Last August, the failed US withdrawal from Afghanistan led the news with images of young children being handed over barbed wire walls by parents to American soldiers guarding the airport in Kabul, in hopes of saving their lives. Families fearing for their lives huddled in masses for days outside the Hamid Karzai International Airport hoping for transportation out of the country. Throughout the fall the Biden Administration continued to proclaim the situation across Central Asia was under control. Yet it was only a few weeks after the Taliban regained power that videos and reports about ethnic Pushtun Taliban evicting ethnic Turkmen and Uzbeks from their homes and seizing their livestock started coming in from northern Afghanistan, according to the Foreign Policy Research Institute. 

Today it is evident that the security environment is continuing to deteriorate further from the events of last August. Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan, and Uzbekistan rely heavily on the Taliban to prevent non-state actors from operating in northern Afghanistan and launching cross-border attacks. Bruce Pannier, a longtime journalist working in the region, writes that the ground truth reveals extensive regional instability. “In recent months… the Islamic State has bombed mosques near the border with Central Asia, and [has] claimed to have launched a rocket attack into Uzbekistan.” He points out that “The contest for control of northern Afghanistan between the Taliban, the Islamic State, and other terrorist groups is a major security concern for the states of Central Asia.”

Ethnic minority groups are suffering as the Taliban lose more control to the Islamic state in the northern border areas. As of this week females in Afghanistan are once again forced to wear veils and fully cover their bodies. A modern secondary education is no longer available to girls as it was under the previous regime. Parks are segregated by sex and men who work in government and have a female relative who fails to abide by the rules could lose their jobs. The security situation, compared to that in the late 1990’s when the Taliban were in control, is more dangerous today. 

Trade and connectivity among the Central Asian states has evolved over the last 30 years making it almost impossible for the countries to ignore the deteriorating conditions threatening the regions around Afghanistan. The combination of challenges may be well beyond the ability of the Taliban to control it in the coming year. Pannier points out that “Since regaining power, the Taliban have repeatedly assured the governments in Central Asia that they would not allow Afghan territory to be used for attacks against Afghanistan’s neighbors. That is really the foundation of the understanding the Central Asian states have with the Taliban.” 

If the Taliban are unable to tamp down the violence in northern Afghanistan, or if a nearby Central Asian state is attacked by terrorists from inside Afghanistan, it is likely to change the political relationships in the region. Pannier suggests it will be very difficult for the Taliban to restore trust or its foreign policies should the Islamic state shatter the fragile truce and be unable to control its territory. Secretary of State Antony Blinken called the situation  “extremely mixed to negative,” with complications from the blooming meth industry in Afghanistan and increasing demand for the drug from foreign markets. Gandhara News reports that Afghanistan’s Taliban-led Defense Ministry has established several new military units in three border provinces in the country’s north, northeast, and west, and is deploying an estimated 4,400 additional troops in the region in response to outbreaks in violence. Farangis Najibullah, a reporter with Radio Free Afghanistan, points out that various warlords just inside Afghanistan’s borders are rearming and causing concern among the Central Asian states who see this as similar to troop deployments in the past. It raises suspicion among neighboring countries, especially Tajikistan, which frequently voices concern about security issues in Afghanistan and their potential impact on Central Asia. Since the Taliban placed new “special forces” in the border areas, the nearby states are growing more concerned about potential infiltration into their countries. At the same time, they do not want to see drug or religious conflict spread to their states. The dictionary defines a powderkeg as a “dangerous” or “volatile situation.” It is an apt description of the region nine months after the US withdrawal. Any one factor could set off a regional conflict.

Daria Novak served in the U.S. State Dept

Illustration: Pixabay

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Will the Caribbean Become a “Chinese Lake?”

The principle of “indivisibility” is critical to American citizens. It is written into our Pledge of Allegiance and enounces that although we may come from many places, no one can pull us apart. Chinese President Xi Jinping used this concept in past years to refer to his country’s relations with Russia and Ukraine, calling their ties “indivisible.” He expanded it in his April 21, 2022, speech, when for the first time he applied the idea beyond the framework of relations with those two states. While speaking at a virtual foreign minister’s meeting of the nine Caribbean states maintaining diplomatic relations with Beijing, Xi proposed a “global security initiative” to uphold the principle of “indivisible security.” According to the Jamestown Foundation, this is the first time China has argued for “indivisible security” outside of the Russia-Ukraine context. It may represent the opening of a new front in China’s attempt to remake the world order in its favor.

Caribbean states are crucial to China’s commercial access to the Atlantic coast of the US and South America. Over 6 percent of global maritime trade passes through the Canal. Last year Hutchison Balboa, a Chinese owned company, received a 25-year extension on its contract to administer the ports on either end of the Panama Canal despite some opposition due to its ownership. Evan Ellis, in a Wilson Center report, notes that the Caribbean “sits between multiple US military and commercial logistics hubs and potential destinations in the Americas, Africa and Europe,” making it an important waterway for China and a flashpoint for US-China competition. Cargo traveling to and from China composes about 13% of the canal’s annual traffic. Daniel Runde, of the Center for Strategic and International Studies, points out that “China’s influence in the Panama Canal has only grown since 2017 when then-president [of Panama] Carlos Varela severed diplomatic ties with Taiwan and recognized China, further opening the door to China’s expanded footprint in critical Canal infrastructure and laying the groundwork for alignment with the Belt and Road Initiative (BRI).”

The Caribbean region provides China with one-third of its food imports, lithium for batteries, and other critical products. As China’s commercial interest in the Caribbean grows, so does American security concerns over the potential of China building a permanent naval base in the area. As in many developing areas of the world, China is financing infrastructure projects that in the Caribbean total more than $7 billion in loans and investments in six Caribbean countries since 2005. Two years ago, China Merchants Port Holdings acquired the Kingston, Jamaica, container port and committed to invest $2.7 billion to improve it. 

During a 2019 trip to China, Prime Minister Andrew Holiness, and his Jamaica Labor Party (JLP), claimed to have played a key role in China’s significant expansion in the country and to have created the closest ties ever between the two countries. The narrative is similar in the Bahamas where the Chinese firm Hutchison operates the Freeport container port.  “In Trinidad and Tobago, China Harbor, which has multiple projects in the country, has proposed a $500 million regional drydock facility in La Brea, while a consortium of Chinese investors has promised a $102 million industrial park to be populated by Chinese companies,” according to Ellis. In Suriname, the Chinese Greenheart Company owns a significant portion of the nation’s timberlands. The Dominican Republic broke relations with Taiwan in 2018 when China promised it $3 billion in credits and investments. In Guyana, the Chinese oil company CNOOC has a 25 percent interest in the Exxon-Mobil-led consortium that controls over 6 million barrels of recoverable oil. The narrative of expanding Chinese investments is similar across the region.

As US-China competition intensifies, Beijing is further opening its pocketbook throughout the Caribbean to convince them it simply wants to “benignly aid” the region by building port facilities, mines, airports, and other infrastructure projects. The area also is becoming a key battleground for China in its struggle to isolate Taiwan from its remaining ties by permanently creating “indivisible” links to the island countries just south of the United States. “China and/or its partner nations in Latin America and the Caribbean could construe just about any US defense policy or military action, from budgets to aid to exercises, as a violation of indivisible security and whatever agreements emerge from [China’s] Global Security Initiative,” according to the Jamestown Foundation’s Stealth War newsletter. It is beginning to appear that a new and dangerous front may be opening in China’s struggle for future leadership of the global world order right in our backyard.

Daria Novak served in the U.S. State Department

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NY Analysis

Environmental Extremists Cause Massive Harm

Americans opening up their latest energy bill are, in some cases, being forced to choose between paying it or putting an adequate amount of food on the table.

The shock and hardships endured by Americans from their current energy charges, at home, at the gas station, and even in the products they buy is directly due to the influence of environmental extremists, who have caused massive harm to both personal and national finances and international relations.

The reality is that “alternative” energy sources can, currently, only provide about 20% of the world’s energy needs, and that will not change until major technological innovations occur, which will not happen for many years. It is as if, in the year 1776, someone had suggested that in a century or so the automobile would be invented and proceeded to shoot all the horses.

Despite that reality and that timeline, the extremists have successfully assaulted fossil fuels and nuclear energy without regard to the harm they are causing. It is apparently of no consequence to them that they have fueled—pardon the pun—international crises, harmed national economies, and devastated family budgets. 

The dramatic increase in both your energy bills, and the inflationary prices in everything else, are the specific and direct result of the Biden Administration’s assault on American energy independence at the behest of environmental extremists. On day one of his reign, Biden killed the Keystone XL pipeline. He then stopped energy development in a portion of Alaska, and forbade further energy development on federal lands. This left the U.S. dependent on foreign nations to fulfill our energy.

It also dramatically started an inflationary cycle. Everything you eat, buy, or use takes energy to produce, manufacture, and transport to you or your store. The hike in food prices is as related to energy policy as much as the cost of gasoline for your car.

The leftist politicians who buy into anti-fossil fuel policies cannot feign ignorance of the devastating impact they have on the population. In 2008, Barack Obama clearly stated “Under my plan … electricity rates would necessarily skyrocket.” He should have added that the price of everything else would “skyrocket” as well.

Bureaucrats haven’t been coy about this, either. Also in 2008, Energy Secretary Steven Chu’s said he was attempting to “figure out how to boost the price of gasoline to the levels in Europe.”

There is no practical way in which, under current technology, “zero emissions” can be achieved in any realistic manner.  A total reliance on solar and wind, even if feasible, would require that up to 20% of the entire U.S. landmass would have to be covered in solar panels and wildlife-killing wind turbines, an environmental disaster in and of itself.  Since solar panels and wind turbines have relatively short lifespans, the problem of disposing those used and non-biodegradable devices will result in a further crisis.

A Wall Street Journal analysis reports that:

“Costs will continue to rise if politicians remain bent on achieving net-zero emissions globally. Bank of America finds that achieving net zero globally by 2050 will cost $150 trillion over 30 years—almost twice the combined annual gross domestic product of every country on earth.”

In addition to massive inflation, extreme environmental policies are responsible for deteriorating international relations.

The late Senator John McCain once said that “Russia is a gas station masquerading as a nation.” Biden’s anti-fossil fuel policies are a gift-wrapped present to Vladimir Putin. The Kremlin’s aggressive actions towards Russia’s neighbors are fueled by the vast riches it has gained from the sale of energy. As environmental extremists slash energy production in the West, Putin gets wealthier, and his uses that wealth to build his military.

Illustration: Pixabay 

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China-Russia Cooperation Deepens

Don’t be fooled.” That is the advice many military analysts watching the Russia-China relationship are espousing this week. While China publicly is distancing itself from Russian aggression in Ukraine to buffer itself from Western economic sanctions, it still is helping Moscow on a number of fronts that will enable Russia to project hard power far beyond its shores into Central Asia. How long and solid the relationship remains may be determined by their joint hatred of the United States.

Putin quietly sought $10 billion in Chinese assistance this spring to widen and deepen the Volga-Don Canal. The water in the inland waterway is only deep enough to float large naval vessels about eight months out of the year. Paul Goble, of the Jamestown Foundation, suggests that “even amidst the war and tightening Western sanctions, [the canal] highlights how important riverine traffic is for Russia economically, geopolitically, and militarily.” Putin is willing to accept economic assistance from China to strengthen his own military position. Three weeks ago, Evgeniy Gaiva, writing in the Russian publication rg.ru attempted to cast the canal project solely in economic terms. “It may be more profitable to develop year-round navigation on inland waterways in southern Russia than to expect the construction of a lock at the Gorodetsky hydroelectric complex to solve the problem of the Volga shallowing, according to the Russian Union of Industrialists and Entrepreneurs.” In March, representatives of China’s CCCC Dredging Group traveled to “Russia…to discuss…the possibility for Chinese firms to take part in dredging operations,” according to Goble. The project is taking on a security tone. It may become even more important in the coming decade it Putin is less than fully successful in his current war in Ukraine. Goble points out that “Such cooperation will enable Russia to use the canal not only to promote a role for itself in China’s east-west trade but also for military and security purposes.”

Although it will take years, once dredged, the canal will provide Moscow with an enhanced ability to put pressure on Ukrainian territory using its navy. It also will be capable of carrying containerized shipping at a lower price than China-backed railways can offer in the area. A Jamestown Foundation article reports that “it will not only boost economic traffic in the south but allow Russia to achieve two goals. First, it will open up a path for the Caspian Flotilla to leave that sea and supplement Russia’s hard-pressed navy in the Sea of Azov and Black Sea. And second, it will enable the integration of river and canal traffic in southern Russia into Moscow’s broader, oft dismissed, plans for using its rivers and canals to the north and west to project Russian influence.” 

China’s Foreign Ministry recently called its relationship with Russia a “new model for the world” and announced there are “no limits” to the friendship. It may be one part convenience and one part alliance but, it certainly is rooted in behind-the-scenes security issues and not simply economic ties. What is most important in the long run is to examine where Russia is colluding with China when it comes to international affairs. Yun Sun, of War on the Rocks, suggests “Their alignment is based solely on their shared anti-U.S. agenda and leadership preferences.” Xi is powerful because China is powerful, but Putin is seen as powerful even when Russia is weak,” according to Yun. Xi nicknamed Putin “the Great Emperor” as he is considered intelligent, decisive, manipulative, and powerful. It is a status that Xi deeply desires. Russia needs China today. But it is Xi Jinping’s “Russia complex” and admiration for Vladimir Putin that results in a selective bias in his judgement about Russia’s national power. Yun says that Xi is prone to “overestimating Russia’s strengths and reliability, while underestimating its weaknesses.”  They are held together, in large part, by their adversarial relationship with the United States. Behind Putin’s back Xi Jinping has commented that he is concerned Russia will become a “gas station disguised as a nuclear power.” It appears Putin is willing to take what he can get from China to make sure that this doesn’t happen. 

Daria Novak served in the U.S. State Dept.

Photo: Volga River (Pixabay)

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Is it a Crime to Reveal a Draft of a Supreme Court Decision?

According to the Washington Post, “(t)he law that could be at issue is 18 U.S.C. 641 —which prohibits the theft or receipt of stolen government information, as well as theft of the documents. That could apply to Supreme Court documents. But the Justice Department’s criminal division has said, as a matter of policy, that it would be inappropriate to bring a prosecution under the law in the following circumstances: when the thing alleged to have been stolen was ‘intangible property, i.e., government information’; when the person ‘obtained or used the property primarily for the purpose of disseminating it to the public’; and when the property was not obtained by wiretapping, interception of correspondence or trespassing. In other words, if someone with legitimate access to the draft — such as a justice, clerk or administrative assistant — leaked the information because they thought the public should know about it, the Justice Department would not treat the leak as a crime.” In other words, while there are criminal charges available, don’t hold your breath waiting for Merrick Garland to look up from his prosecution of January 6th trespassers and charge someone with misappropriation of a draft opinion from the US Supreme Court.  Particularly when his boss Joe Biden did not decry the breech of the Court’s security, but instead, took the opportunity to reiterate his support of abortion rights.  “I believe that a woman’s right to choose is fundamental,” President Biden stated. “Roe has been the law of the land for almost fifty years, and basic fairness and the stability of our law demand that it not be overturned…I directed my Gender Policy Council and White House Counsel’s Office to prepare options for an Administration response to the continued attack on abortion and reproductive rights.” Still, this does not mean the leaker, when caught, won’t be facing some serious consequences.  According to “national security and whistleblower lawyer Bradley P. Moss, “It is certainly a fireable offense — without question.'”  Thus, if the leaker is a non-attorney, he or she can expect to lose their job at the Supreme Court – and probably be hired by Planned Parenthood within the week. Unless they lie to the Court’s marshal in the course of her investigation.  In that case, you can more readily expect charges to be pressed for lying to investigators. However, if the leaker turns out to be an attorney, there is a greater likelihood of severe ethical ramifications.   “Washington (DC)’s bar and others have rules that forbid lawyers to ‘engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.’ The Washington bar also has a rule that says lawyers cannot ‘engage in conduct that seriously interferes with the administration of justice.’ Attorney disciplinary officials can investigate matters on their own or respond to complaints.” Even the aforementioned legal scholar Orrin Kerr believes that “(l)eaking a draft opinion would be a violation of court confidentiality rules and could result in disbarment…’This is the most egregious violation of confidentiality for a staff member or employee of the court that you can imagine,’ he said.” Further, “Michael Frisch, a former disciplinary counsel in Washington, said if the leaker is identified as an attorney, it would fall to the bar where that lawyer is a member to investigate. ‘It’s going to be a career-defining, if not career-ending moment,’ Frisch said.” With the Chief Justice of the US Supreme Court as the complainant, it will be very difficult for any attorney to escape serious disciplinary penalties for revealing Justice Alito’s draft opinion.  Disbarment, or at the very least, a lengthy period of suspension from practice, is most likely. But whatever penalty is exacted – whether criminal charges, loss of employment, suspension from practice or disbarment – expect abortion supporters, and the left in general, to celebrate the leaker, and to argue that the means justifies the ends. Judge Wilson (ret.) served on the bench in NYC. Illustration: Pixabay

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What To Expect From Biden’s Supreme Court Nominee

After 27 years as a Supreme Court Justice, Stephen Breyer decided to retire late in January of this year.  Breyer, at 83 years old, was originally appointed by President Bill Clinton in 1994, and is the oldest member of the Court at present. Breyer’s decision does not appear to have been spontaneous. “Liberal activists have urged him for months to retire while Democrats hold both the White House and the Senate… Erwin Chemerinsky, dean of the University of California Berkeley School of Law, urged Breyer to retire in a Washington Post op-ed article in May…(t)he progressive group Demand Justice hired a truck last year to drive around Washington with the sign: ‘Breyer Retire. It’s time for a Black woman Supreme Court justice.'” Did Joe Biden happen to see that truck while wandering around DC? Probably not –  “On the campaign trail, Biden vowed to nominate a Black woman should a Supreme Court vacancy arise, a pledge he reaffirmed after Breyer’s announcement.” According to The Hill, “Biden said he would consult with senators from both parties, leading legal scholars and Vice President Harris before settling on a nominee…’I will listen carefully to all the advice I’m given, and I’ll study the records and former cases carefully…I’ll meet with the potential nominees, and it is my intention…to announce my decision before the end of February.'” True to his word, at the end of February, President Biden picked Ketanji Brown Jackson – a black woman – as his nominee to replace Breyer on the US Supreme Court. According to Ballotpedia, Brown Jackson was “born in 1970 in Washington, D.C.  She then moved with her family to Florida, where she graduated from Miami Palmetto High School in 1988. She received a bachelor’s degree in government, magna cum laude, and a J.D., cum laude, from Harvard University in 1992 and 1996, respectively. She served as the supervising editor of the Harvard Law Review from 1995 to 1996.”  She has served as a Law Clerk to Justice Breyer; has been a federal public defender; was appointed to be a Judge of the Federal District Court in DC in 2013 by President Obama; and was elevated to the DC Federal Court of Appeals in 2021 by President Biden.  Both times, she passed Senate confirmation without difficulty. On the surface, Brown Jackson would seem to be a candidate who could garner a good deal of bipartisan support.  But according to Fox News, “(m)issing (from most news reports) are details like her work drafting an amicus brief on behalf of pro-abortion organizations in a buffer zone case in which she repeatedly disparaged the peaceful and often prayerful clinic protesters as engaging in ‘in-your-face’ and ‘chaotic’ activity that somehow fell short of ‘pure speech.’ She also represented several Guantanamo Bay detainees as a public defender and continued that representation on a pro bono basis after moving back to private practice. That was before her tenure as vice chair of the United States Sentencing Commission, during which the Commission reduced its sentencing recommendations for crack-cocaine offenses, advocated the repeal of mandatory-minimum sentences, and raised concerns about demographic disparities in sentencing.” These actions while in her legal practice reveal someone with a clear left of center viewpoint.  But it is Brown Jackson’s record as a judge that reveal a few things about her judicial philosophy that may be of concern to Constitutional conservatives. According to BuzzFeed.News, “(a)s a district court judge, Jackson presided over a set of challenges by federal labor unions to three executive orders issued by Trump that gave agencies new directives about how they should handle collective bargaining. Jackson in August 2018 rejected the administration’s argument that the court lacked jurisdiction over the case and ruled that the bulk of the challenged orders violated federal law…The DC Circuit later reversed her on the front-end jurisdiction issue and dismissed the case.” In September of 2019, “a coalition of immigrant rights group’s challenged the Trump administration’s plan to expand the category of undocumented immigrants eligible for fast-track deportations…(Brown Jackson) issued a preliminary injunction blocking the changes…(t)he DC Circuit later reversed Jackson’s injunction.”  Further, “(i)n October 2020, Jackson sided with immigrant advocacy groups who sued the Trump administration over a lesson plan used to train federal immigration officers who screen potential asylum seekers slated for fast-track deportations. The challengers argued the language adopted in 2019 wrongly raised the bar too high for the initial round of vetting to see if a person had shown a ‘credible fear’ of persecution in their home country. Jackson agreed. The Justice Department decided not to pursue an appeal. “One of Jackson’s most famous decisions came in late 2019, when she concluded that then-president Donald Trump’s first White House counsel Don McGahn could not claim absolute immunity against a congressional subpoena to testify in the Russia investigation…(b)acked by the Justice Department under Trump, McGahn argued that current and former senior advisers to the president enjoyed absolute immunity against congressional subpoenas, that the president had the final word on when to assert that immunity, and that courts lacked authority to intervene. Jackson rejected all of the DOJ’s positions. Her opinion was stacked with sweeping declarations about how every person, including the president, ultimately is bound by the law… The case ping-ponged around the DC Circuit for the next year and a half on the question of whether the court had authority to hear it.  The first time it went up on appeal, a three-judge panel ruled 2-1 to dismiss the case, but then the full court sided with Jackson and ruled it could go forward. The Trump administration raised a second challenge on different grounds, and the DC Circuit again ruled 2-1 to toss it out. Before the full court could weigh in again, McGahn reached an agreement to testify, ending the legal fight.” Much like her activities as a lawyer, these decisions while on the DC bench show a pattern of sympathy towards progressive priorities, such as allowing faster acceptance of illegal immigrant applications for asylum, and the manipulation of federal law to support outcomes that either blocked action by the Trump Administration, or forced Trump Administration members to testify in the now-discredited investigation into “Russian collusion.” Perhaps Joe Biden really did  “study the records and former cases carefully” before selecting his nominee. Like Sen. Roger Wicker (R-MI), it would be easy to dismiss Joe Biden’s nominee as “a ‘beneficiary’ of affirmative action.”  However, such a simplistic view ignores the fact that even if Brown Jackson did receive opportunities for advancement due to her status as a black woman, she still had to do the work required to maintain those positions.  Her record as a lawyer and a judge, while exhibiting a leftward, anti-Trump slant, cannot be minimized so easily. Of course, Brown Jackson is smart enough not to tell you in advance how she will rule as a Judge. During her confirmation hearings for the DC Court of Appeals, when asked to “describe the importance you place on working with colleagues who may have different views,” Brown Jackson stated that “(b)ecause the D.C. Circuit often address complicated and potentially contentious legal issues, the ability to listen with an open mind to other points of view, and to be respectful even if a judge ultimately disagrees with another judge’s analysis or conclusions, is crucial to the effective operation of the court, and, ultimately, maintains public trust in the court as an institution.” Nonetheless, given her published opinions, Brown Jackson will no doubt serve as another progressive voice on the Court, chipping away at the measures taken by Republican Administrations and the laws enacted by Republican Congresses for decades. As in the McGhan case, she will use “sweeping” legal language and broad concepts to disguise her real motivations. Unlike Ruth Bader Ginsberg, who exhibited “a view that progress toward equal justice and greater liberty, when carried out by courts, is more likely to last when it is taken in small, careful steps rather than via radical changes,”   you can instead expect Brown Jackson to be “a judge who will deviate from the text of the Constitution and statutes without hesitation to ensure the left’s preferred policy outcomes.” Judge John Wilson (ret.) served on the bench in NYC.
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Is It A Crime To Reveal A Draft Of A Supreme Court Decision?

The news spread faster than Covid 19 in Shanghai -a draft of an opinion written by Supreme Court Justice Samuel Alito was published by Politico. Moreover, the proposed opinion is a bombshell – the overturning, and utter repudiation of the notorious Roe v. Wade.  

The document has been authenticated by Chief Justice Roberts, who cautioned that “the draft opinion, dated from February…does not represent the ‘final position of any member on the issues in the case.'”    In fact, “Justices circulate draft opinions internally as a routine and essential part of the Court’s confidential deliberative work…the document… does not represent a decision by the Court or the final position of any member on the issues in the case.”

Anyone familiar with the internal workings of the Supreme Court can verify that a draft opinion is subject to a variety of revisions, changes and sometimes, does not become the majority opinion.  According to NPR legal affairs correspondent Nina Totenberg, “(t)here’s always a chance that the draft opinion doesn’t end up looking similar to the final opinion, noting that this has happened numerous times. A majority of justices must ‘sign onto’ the court’s opinion before it can be delivered publicly…’No opinion is considered the official opinion of the Court until it is delivered in open Court (or at least made available to the public)…'”

Totenberg went on to describe the impact of the disclosure of Alito’s draft opinion.  “Leaks of any kind are rare at the Supreme Court, and…there hasn’t been such a massive breach in modern history. She called it a ‘bomb at the court’ that undermines everything the body stands for internally and institutionally, including its members’ trust in their law clerks and in each other. ‘No fully-formed draft opinion has been leaked to the press or outside the court,’ Totenberg says. ‘Once or twice there may have been leaks that say how is something going to turn out, or after-the-fact that somebody may have changed his or her mind. But this is a full-blown, Pentagon Papers-type compromise of the court’s work.'” 

Conservative pundit Laura Ingram stated that, “(i)t’s incumbent upon (Chief Justice Roberts) to bring in every law clerk before him or the FBI. ‘Give me your phone. We want all your accounts. We’ve got to do our own — look at every device you’ve ever used and find out who did this.'”  Meanwhile, US Senator Josh Hawley (R-MO) stated the obvious; “I think it’s plainly an attempt by the Left to try and change the outcome in this case and corrupt the process, and the court must not allow that to happen.”

The Court was clearly cognizant of both issues; “U.S. Chief Justice John Roberts…directed the court’s marshal to launch an investigation into the source of the leak. ‘To the extent this betrayal of the confidences of the court was intended to undermine the integrity of our operations, it will not succeed. The work of the court will not be affected in any way,’ Roberts said.” 

The marshal is the court’s chief security officer and facilities administrator, overseeing the court’s police force. Gail Curley, former chief of the National Security Law Division in the U.S. Army’s Judge Advocate General office, took up the post last year.” There are only so many employees of the US Supreme Court who could have access to a draft opinion.  Thus, it shouldn’t be too hard for Marshal Curley to figure out who “let the cat out of the bag.”  But what repercussions are in store for the leaker?

If you ask former US Attorney Andrew McCarthy, “(t)he leak is a corrupt act that was patently intended to influence the outcome of the Dobbs case. That makes it a criminal obstruction of that judicial proceeding. Obstruction is the charge that the Biden Justice Department has brought against some of the most serious Capitol riot defendants, whose corrupt acts were intended to influence and intimidate Congress into changing the outcome of the 2020 presidential election. It is even more clearly applicable to court cases — we don’t call it obstruction of justice for nothing.”

Further, McCarthy believes that “(u)nder federal law, it is a crime to embezzle government records or to convert them to one’s own use. The leaker, who took the draft opinion — the government’s property — and disseminated it outside the court’s established processes to someone not authorized to access it, has stolen a record and converted it to his or her own political purposes. That’s a crime.”

“Finally, federal law has long criminalized conspiracies to defraud the United States. As long interpreted by the Supreme Court, fraud in this context is not limited to schemes to swindle the government out of money or property. It includes deceptive acts that are intended to have, and can have, the effect of undermining government processes. Here, the leak was precisely intended to undermine the Supreme Court’s regular process for crafting, deliberating and issuing opinions that create binding United States law.” 

But there are those who disagree.  “‘Right now, it’s unclear whether the leaker broke any law at all,’ says Trevor Timm, a First Amendment–focused lawyer and the executive director of the Freedom of the Press Foundation. ‘Even the people claiming this act is beyond the pale and the FBI must investigate haven’t pointed to a definitive law this leaker allegedly broke.’ Timm cites a lengthy Twitter thread published…by the well-known UC Berkeley legal scholar Orin Kerr, who responded to the leak…by pointing out that a Supreme Court draft doesn’t meet any of the obvious criteria that would make it an illegal document to hand to a journalist: Most important, it’s not classified, so leaking it doesn’t open the leaker to prosecution under the Espionage Act. ‘As far as I can tell, there is no federal criminal law that directly prohibits disclosure of a draft legal opinion,’ Kerr concluded.” 

Obviously Timm either didn’t read, or has not been made aware of McCarthy’s extensive list of laws that may have been broken by whoever revealed the draft opinion.  Timm may also be guilty of selectively quoting Kerr – Reuters gives a more complete elaboration of the Berkeley legal scholar’s views on the matter;

“Drafts of Supreme Court opinions are not classified documents like national security files, said…Kerr, meaning their disclosure would not automatically trigger a criminal investigation. But even a leaker with authority to handle a draft opinion could potentially be charged with stealing or converting federal government property for their own use, he said.”  Further, “(a)nyone who lies to an investigator as part of the court’s leak probe could also face a federal false statement charge, said Kel McClanahan, an adjunct professor at George Washington University Law School who specializes in national security law.” 

Judge Wilson (ret.) served on the bench in NYC.

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Quick Analysis

Asia at Risk

While the cat’s away the mice will play” is an old childhood adage applicable to international politics today. While all media eyes are cast toward the war in Ukraine another area of the world is heating up without much commentary. All is not quiet on the Indian subcontinent. India, Pakistan, and Sri Lanka are wrestling with issues that raise the threat environment in the region. 

In Islamabad the former Prime Minister, Imran Khan, accused the US government of colluding to depose him and publicly called out the new leadership as traitors to Pakistan. Members of his political party, the Tehreek-e-Insaf jeered the current Prime Minister Shehbaz Sharif as he led a senior government delegation visiting the Prophet’s Mosque in the holy city of Medina, Saudi Arabia. In response Pakistani police charged the former prime minister and the hecklers with blasphemy. According to the country’s Interior Minister Rana Sanallah, who is supportive of the charges, Khan may be formerly arrested if Pakistan can link him directly to the events in Saudi Arabia. The sentence for blasphemy in Pakistan can be death. In the past such sentences could be carried out by mob lynchings and typically often to other violence. Also inside Pakistan, the Database of People with Extremist Linkages (DOPEL), is reporting that Allan Nazar, the leader of a banned militant group called the Baluchistan Liberation Front (BLF), is emerging as the face of a separatist movement in Pakistan’s Baluchistan province. Syed Fazl-e-Haider, of the Jamestown Foundation points out the separatist leader’s group has “carried out hundreds of terrorist attacks on Pakistan’s armed forces and civilians” and that “Nazar himself has become a new face of Baluch separatism, despite coming from a middle-class, as opposed to upper-class, family background.”
 
In Sri Lanka, according to the publication Ceylon Today, the country is being “pushed towards anarchy.” Inflation is over 20 percent and Colombo is about to default on $50 billion in foreign debt. In April, to stem expanding protests, the entire cabinet, except the president and his brother, Prime Minister Mahinda Rajapaksa, resigned. In an attempt to stabilize the situation Rajapaksa  secured $2 billion in aid from India and is working on obtaining debt relief from the IMF. The government has made a number of errors in recent years that have hurt the economy and place the country in danger of collapse. The latest economic crisis, according to economic analysts familiar with Sri Lanka, caution that the “current environment may push it over the edge” toward anarchy.

India itself is negotiating a tough course over its military purchases from Russia and determination to maintain its oil imports despite the war in Ukraine. It won’t be easy for India to delink. “About 97 percent of India’s main battle tanks, 100 percent of its armored fighting vehicles, 67 percent of its submarines, 68 percent of the anti-ship cruise missiles aboard its guided-missile destroyers and frigates, and 97 percent of its fighter aircraft were acquired from Russia (or its predecessor, the Soviet Union).  Even India’s most successful domestically manufactured anti-ship cruise missile, the BrahMos, was co-developed with Russia,” according to Felix Chang of the Foreign Policy Research Institute.  India, in a typical year, imports over 80 percent of its oil and nearly half of its natural gas as it has few natural energy resources. Chang suggests that India’s tilt toward Russia may be explained by its strategic dependence on Russia for low cots oil and other commodities it needs. Some analysts argue that India’s relationship with Russia serves as a counterbalance to Chinese threats. In recent years there have been a number of small armed clashes between the two nations. Chang points out that should India find itself in a conflict with China, “full-throated Western support could prove critical,” especially if Russia fails to aid the country. “While India may be assured of some level of support from the West, will the West go the extra distance for India as it did for Ukraine?  If the West does not, India’s Russia-leaning neutrality might begin to look less like strategic independence and more like strategic seclusion.” If the situation in Russia deteriorates, India could find itself without the support of any  major power and facing a belligerent China alone.

Daria Novak served in the U.S. State Department

Illustration: Pixabay

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Quick Analysis

China’s Threat Takes to the Sea

For over 4,000 years, from the Chinese perspective, the Silk Road Spirit was one of “peace and cooperation, openness and inclusiveness, mutual learning and mutual benefit” that aided in the development of countries along the ancient Silk Road. The economic land bridge extended from Eastern China into Europe and Western Russia. The ancient maritime section of the Silk Route, often referred to as the spice network, connected Chinese commerce with the Indian subcontinent, Arabian Peninsula, Egypt, and Europe by sea. The 21st century version of the ancient Silk Route, Yīdài yīlù chàngyì (一带一路”倡议), is known collectively today as the Belt and Road Initiative (BRI). It is composed of six economic corridors; five of which are land-based. The newest, a sixth corridor, is a maritime strategy designed to create a modern global transport network from China’s coastline to the Mediterranean Sea states. 

China’s shift from a solely continental-based approach to a dual sea-based strategy utilizing its modernized, blue water navy to secure trade routes has raised national security concerns among nation-states from the Indo-Pacific to Western Europe and the United States. China’s BRI spans 80 nations and covers 2/3 of the world’s population. According to Jonathan Hillman, writing in a CSIS Brief, Chinese investments are approaching $1 trillion, making the BRI seven times larger than what the US spent under the post-WWII Marshall Plan. The Initiative, he says, is “breathtakingly ambiguous” with no official definition of what qualifies as a project. 

Touted by Beijing merely as an economic initiative supporting “connectiveness” and “mutually beneficial cooperation,” there are veiled overtones of a new, developing Sinocentric maritime environment that presents a geopolitical security threat to states located along the yī chuàn zhēnzhū or “String of Pearls” (一串珍珠) countries. To understand the causal logic behind China’s current commercial maritime strategy, one needs to examine where the country is shifting its resources and what it may indicate in terms of Beijing’s long-term, blue water, military power projection. Perhaps most revealing are the underlying holes in the current trade strategy that bely a more substantive threat to the rules-based world order. 

When China reopened to the West in the 1980’s, it revitalized and expanded its maritime trade routes. By 2008 Chinese naval leaders began urging the CCP leadership in Beijing to establish overseas naval bases under the guise of supporting its counter-piracy operations along the African coastline. Shortly after Xi Jinping assumed power in March 2013, Chinese Premier Li Keqiang spoke about China’s desire to orient a new trade corridor towards the ASEAN states to “create propellers for hinterland development.” Public statements now are couched in terms of economic modernization, peaceful cooperation, and joint interests. When President Xi Jinping announced the start of the BRI, he declared that it is “all the more important for us to carry on the Silk Road spirit in face of the weak recovery of the global economy, and complex international and regional situations.” Xi was not transparent about what the Chinese government considered “complex,” what constituted a “situation,” or how China planned to impact the global economy. What is inferred from the summation of his speech is that Beijing views the great wall of water composing the seas near China as a strategic opportunity to reduce US influence and prestige in Asia. 

The People’s Liberation Army Navy’s (PLAN) core pillar of strength today is a sea-oriented, economic strategy designed as an extension of China’s long-range power projection as well as a natural expansion of its overseas trade policy. 

Of the 3,700 major ports worldwide, 2,000 of which are located on the Maritime Silk Road, China only is interested in 17-18 of them. Each of these is capable of handling large, military ships. The world is fast approaching a period where the various forms of Chinese overseas interactions, both civilian and military, are no longer confined to the littoral waters around Taiwan or the South China Sea. When President Xi speaks in terms of a Chinese tiānxià (天下) he means far more than just “empire;” he is merging the concept of the modern nation-state and the civilized world into one. It is a world order viewed from a Chinese perspective where the “middle kingdom” presides over the center. Tiānxià is a soft power approach based on the symbolic recognition of the charismatic authority of the Chinese emperor as prerequisite to engage in the exchange of goods. There are nascent indicators of such a transformation today in China’s geopolitical, great power strategy that are ingrained in the reconstruction of older ordering principles which is rooted in the history of China’s ancient Silk Road. 

Daria Novak served in the U.S. State Department

Photo: Photo taken on April 8, 2022 shows a frigate maneuvers in full speed during a combat training exercise somewhere in the South China Sea staged by a frigate flotilla with the navy under the PLA Southern Theatre Command in early April, 2022.(eng.chinamil.com.cn/Photo by Zhang Bin)