Tag: law

EU incoherence

Both the EU and the Spanish government are proving to be tone-deaf over the threat to their claim to democratic legitimacy.

The obvious answer to the objection of Weber and others on the running of the referendum, is to have another one agreed by all and run in strict accordance with international standards. Yet strangely, despite their complaints about the process, they do not want to have a better process. They rather do not wish people to be allowed to vote at all.

There are however no arguments that the Catalan Parliament was elected in anything but the proper manner. Its suspension by the Spanish Constitutional Court – a body on which 10 out of 12 members are political appointees – is therefore not due to any doubts about the Catalan Parliament’s legitimacy.

No, the Catalan Parliament has been suspended because the Constitutional Court fears it may be about to vote in a way that the Spanish government does not like.

Note that it has not even done this yet. Nobody knows how its members will actually vote, until they vote. The Constitutional Court is suspending a democratically elected body in case it takes a democratic vote of its members.

This makes the EU look pretty silly. It was looking pretty silly anyway. I telephoned the Cabinet today of Frans Timmermans, the EU Commissioner who told the European Parliament that Spain was entitled to use force against the Catalans and it had been proportionate. I spoke to a pleasant young man responsible for the “rule of law and fundamental rights” portfolio in the Cabinet. I got through by using my “Ambassador” title.

Here is the thing. He was genuinely shocked to hear that people thought the Commission’s support for use of force was wrong. He stated that it had not been the intention of Timmermans to say the use of force was proportionate, rather it must be proportionate. He became very agitated and refused to answer when I repeatedly questioned him as to whether he thought the use of force had in fact been proportionate. I suggested to him rather strongly that in refusing to acknowledge the disproportionate use of force, he was in effect lying. I pointed out that Timmermans had supported use of force and said “rule of law” over and over again, but scarcely mentioned human rights.

Here is the thing. It was plain that his shock was genuine, and he had no idea whatsoever of the social media reaction to Timmermans speech. I told him to search Timmermans on twitter and facebook and see for himself, and he agreed to do so. The problem is, these people live in a Brussels bubble where they interact with other Eurocrats and national diplomats, and members of the Establishment media, but have no connection at all to the citizenry of the EU.

Crying “law, law, law” is never going to prove convincing to anyone. The Nuremberg trials killed the concept of the legal justification for morality once and for all. According to the neo-liberal world order, the law rests upon the collective consent of the governed, which consent can be withdrawn at any time as per the Chinese concept of the Mandate of Heaven. Both the EU and Spain are flirting with forces that have the ability to undermine them entirely, and unfortunately, they do not seem to understand this.

For those Spaniards who are apparently very, very slow, I do not support the communists of Catalan. Unlike the Lombardian and Venetian secessionists, I don’t regard their position on independence and the EU to be even remotely coherent. But that does not make what Spain and the EU are trying to do either right or wise.

The Saker is thinking on similar lines when he concludes the Russians are more amused than anything by the situation in Catalonia, and quite reasonably so:

Catalonia is far away from Russia and the outcome of the crisis there will have no real impact on Russian national interests. But on a political level, Catalonia is highly relevant to the Russian political debates. See for yourself:

The case of Catalonia can be compared to Crimea: a local referendum, organized against the will of the central government. In contrast, when Kosovo was cut-off from Serbia in total illegality and without any kind of referendum the entire West gave this abomination a standing ovation. The Russians then issues stark warnings about the precedent this set and thereafter South Ossetia, Abkhazia and Crimea happened. Is the secession of Catalonia not the next logical step? Is there not a karmic beauty in the fact that Spain and the rest of the EU are now being hit by the very same demon they unleashed in Kosovo? There is a definite Schadenfreude for many Russians in seeing the pompous asses of EU politicians sitting on the red ants nest of separatism – let’s see how smart and “democratic” you guys truly are?! It is rather funny, in a bitter-sweet way, to see how ‘democratic’ policemen beat up peaceful demonstrators whose only “crime” was to want to cast a ballot in a box.

A lot of Russians are now saying that Russia is now the only truly democratic and free country left out there. Needless to say, the way the Madrid government handled this situation further damage the credibility of the West, the EU and the entire notion of “civilized Europe” being “democratic”.

Making America Employed Again

The God-Emperor strikes again:

The Department of Justice announced Thursday it has filed a lawsuit against a Colorado corporation for allegedly discriminating against U.S. workers.

The complaint alleges that in 2016, Crop Production discriminated against at least three United States citizens by refusing to employ them as seasonal technicians in El Campo, Texas, because Crop Production preferred to hire temporary foreign workers under the H-2A visa program.

“In the spirit of President Trump’s Executive Order on Buy American and Hire American, the Department of Justice will not tolerate employers who discriminate against U.S. workers because of a desire to hire temporary foreign visa holders,” Attorney General Jeff Sessions said in a statement. “… Where there is a job available, U.S. workers should have a chance at it before we bring in workers from abroad.”

This is great. This is excellent. Now, BUILD THE WALL!

Civil resistance in Catalonia

The Spanish government’s attempt to send in the Guardia Civil is being resisted by Catalonian dockworkers as well as the regional government.

More than 4,000 members of Spain’s Guardia Civil are being dispatched to the troubled region amid concerns over divided loyalties in the autonomous community’s own police force, the Mossos d’ Esquadra. Spanish authorities wanted to house the Guardia Civil officers on four cruise ships – two in Barcelona, one in Tarragona and another in Palamos.

But as thousands took to the streets to protest against the detention of Catalan officials, local dock workers joined the backlash. The Assembly of Stevedores of the Port of Barcelona announced that workers would not provide any services to boats carrying security forces, a decision it said was taken “in defence of civil rights”.

Colleagues in Tarragona quickly followed suit and the Catalan government then denied permission to dock in Palamos – which, unlike Barcelona and Tarragona, falls under regional rather than national control.

The moves to disrupt the deployment comes amid seething anger in Catalonia over the arrests of 14 people, most of them high ranking Catalan officials, during preparations for a referendum that has been declared illegal by Spain’s constitutional court.

Dramatic scenes unfolded across Barcelona and other Catalan towns as the Guardia Civil mounted 41 raids targeting government and presidential departments, as well as warehouses containing election material.

Regardless of the rights and wrongs and legalities of the matter that have been debated here over the past few days, it is apparent that the Catalonian secessionists are currently winning at the moral level of war despite the relative restraint of the Spanish government. This would suggest that they will continue to gain support from previously neutral parts, within and without Catalonia.

Hotel Catalonia

In Spain, you can vote out, but you can never leave. It seems only fair to give the Spanish government’s side to the question of Catalonian secession and its recent actions in response to the Catalonians.

After learning about the searches and arrests made on Wednesday morning by the Civil Guard at various Catalan government agencies, regional premier Carles Puigdemont called a news conference to convey his position to the public opinion and the media. The gravity, but above all the falseness of the accusations that he made, now force us to debunk them one by one, for the sake of rigor and freedom of information. We believe it to be a basic tenet of democracy that public authorities cannot lie to citizens with impunity.

1. “The government of the Generalitat has today been the target of a coordinated aggression by the Interior Ministry’s police forces.”

False: the searches and arrests conducted on Wednesday inside various government agencies were carried out by the Civil Guard, not on the orders of the Interior Ministry or of the Prosecutor’s Office – rather, it was on the order of the judge at Barcelona’s 13th investigative court, as a result of legal proceedings that began a long time ago. As such, the Civil Guard acted in its role of “judicial police.”

2. The goal of the operation was to “suspend the activities of the (Catalan) government,” a government that holds “democratic legitimacy.” 

False. The Catalan government’s activities in all areas where it has devolved powers by virtue of the regional charter, the Estatut (education, health and so on), have not been suspended. The Catalan government has no power to organize a secessionist referendum and it knows this; the Constitutional Court has informed it of this fact. So there has been no suspension of the Catalan government’s activities. On the other hand, while it is true that the Catalan government was appointed by a majority of the deputies who were elected at the regional election of September 27, 2015, this kind of legitimacy (which does not even represent a majority of the people who voted that day) does not give them a mandate to repeal the Estatut or to organize activities that violate the law, as the Constitutional Court has also reminded the Govern. What defines a democracy is not the existence of majorities – all political regimes have them – but rather the fact that democracies cannot disobey the law with impunity. The Catalan government has no power to organize a secessionist referendum and it knows this

3. “This aggression lacks legal backing,” it “violates the rule of law” and the European Charter of Rights, and is “a de facto suspension of self-government and a de facto application of a state of exception.”

It is all false. The police intervention not only took place under the aegis of the judiciary, it was in fact ordered by the latter and has the backing of the Constitutional Court. It therefore falls within the boundaries of the rule of law, of which the independence of the judiciary is a basic pillar (in contrast with the aim of the breakaway laws that were dictated by the secessionist bloc and later suspended by the courts). Nor can one say that Catalan home rule has been suspended, since nobody has invoked Section 155 of the Constitution, which would allow central authorities to temporarily intervene in Catalonia’s affairs. What’s not been applied either is the National Security Law, which would allow the government to take over all law enforcement agencies. There is no state of exception, because not a single civil right has been suspended, as shown by the freely exercised freedom of demonstration on the streets of Barcelona to protest acts ordered by the judiciary.

4. Various acts including “indiscriminate raids, even inside private homes” and other measures such as “the closure and blocking of websites” represent “an assault on democracy.” 

False: the searches on Wednesday were not indiscriminate, they were individualized as part of the judicial police’s operation. And it was the prosecutor’s office, following the Constitutional Court’s resolutions, that ordered the closure of a website that aimed to apply a law (passed on September 6 to facilitate the referendum) that had already been suspended by the Constitutional Court; the website provided details about the illegal ballot and instructions on how to carry it out.

5. “We condemn and reject the totalitarian and antidemocratic attitude of the Spanish State” and after its actions “we consider that the (central) government has crossed the red line separating it from authoritarian and repressive regimes” and that “it doesn’t respect the chief elements of democracy.”

This accusation is not new. Carles Puigdemont has previously argued that, politically speaking, Spain is like Turkey. But the reverse is the case: Puigdemont is, like Erdogan, the one who is shielding himself behind the majority, ignoring the separation of powers and breaking the law, violating the Constitution and the Estatut and using the institutions to push forward an illegal referendum without guarantees. Spain, a member of the European Union, is recognized as a democracy by all the relevant international organizations. The announcement of the ballot is the culmination of a project to repeal constitutional democracy

6. “We citizens have been called to the polls on October 1 to defend democracy in the face of a repressive and intimidating regime.” 

False: the announcement of the ballot is not about defending democracy, but rather about the culmination of a project to repeal constitutional democracy, to repeal the charter of self-government; and to cause the fragmentation of the Spanish rule of law, as embodied in the suspended breakaway laws paving the way for a referendum and for the transition to an independent republic, which were approved in the regional Catalan parliament on September 6 and September 8, 2017 inside a chamber that was half empty as most opposition deputies walked out in protest against the fact that their parliamentary rights were being denied. Intimidation has been carried out by secessionist groups, among them the radical left-wing CUP party, which has put up posters with photos of Catalan mayors and councilors who are in favor of compliance with democratic law.

7. “We are defending the right of Catalans to freely decide their future” 

The assumption that Catalans currently cannot decide their future in free elections is false: they have participated in 35 fully democratic elections since 1977 (at the local, regional, national and European levels) and in three referendums (the ratification of the Spanish Constitution and, on two occasions, of the Catalan Estatut); they enjoy self-government; and the region’s parties are fully present inside the Spanish Congress and Senate (and in the European Parliament, as Spaniards), as well as in many other public institutions.

8. “What is happening in Catalonia isn’t happening anywhere else in the European Union” 

This is the only assertion by Puigdemont that is actually accurate. Unfortunately, in the European Union we have nationalist leaders in both Hungary and Poland who want to put an end to the separation of powers and revoke the systems of laws and liberties currently in force. Luckily, as is also the case with Catalonia, this type of behavior has no place in the EU.

I can’t say I find this to be a convincing refutation of the Catalonian people’s right to self-determination, but I will note that by the Spanish government’s standard, it is very clear that neither the USA nor the EU subscribe to the basic tenets of democracy.

Gab kicked off registrar

Gab‏Verified@getongab
BREAKING: Gab’s domain registrar has given us 5 days to transfer our domain or they will seize it. The free and open web is in danger.

The free and open web is not in danger. Literally NOTHING has changed except that Gab has received a legal wakeup call from reality. It’s more than a little remarkable that they didn’t anticipate this. Remember, I warned Andrew Torba that they ABSOLUTELY HAD to moderate their content, and I did so back in November, long before anyone had “said mean words” or “hurt my feelings” there. I did so again on September 7th, both when I emailed Utsav after our conversation and in my conversation with him.

What I believe inevitably doomed Gab with Asia Registry was not merely the complaints that were being made to the registry in lieu of Gab providing its users with any other option besides the recommended court order, but Gab’s public stance on its refusal to moderate defamation as laid out in its Google filing. There are three sections that are relevant in this regard:

81. Even if it were possible for a social media platform to censor “defamatory and mean-spirited content” generated by 250,000 users, a level of content censorship that extended to “defamatory” and “mean-spirited” content would place at risk that service’s status as a protected Internet Service Provider, as opposed to a publisher or speaker, under 47 U.S. Code 230, also known as Section 230 of the Communications Decency Act (“CDA”)

82. Unlike an Internet Service Provider, a publisher or speaker is not granted the “safe harbor” benefits of Section 230, and may be held liable for defamation or other torts or other liability arising from content published on a platform it owns or manages.

251. Compliance with Google’s demand that moderate content posted by its users on a viewpoint-discrimination basis would place at risk Gab’s critical “safe harbor” protection against claims arising from such content under Section 230 of the Communications Decency Act by turning Gab into an unprotected editor or publisher, whereas it is presently protected as an Internet Service Provider.

This is bad lawyering for four reasons.

  1. Some forms of defamation are criminal in Australia. Gab openly stated, in a public filing, that it cannot, and will not, remain in compliance with Australian law. 
  2. Gab is not an Internet Service Provider. An Internet Service Provider, or ISP, is the company you pay a fee to access to the internet, not an internet site that lets you comment on it.
  3. Section 230 of the CDA doesn’t only protect ISPs, but also protects both the users and the providers of interactive computer service and says neither “shall be treated as the publisher or speaker of any information provided by another information content provider.”
  4. As a Texas entity – which Gab still is despite its establishment of a second office to be able to file its lawsuit against Google in Philadelphia County – Gab was additionally protected by the Defamation Mitigation Act, or Retraction Statute of 2013, which protects the publisher by giving him the option of correcting the mistake by publishing a retraction or deleting the defamatory content.
In other words, on the basis of an entirely groundless fear of being sued for what they like to describe as “mean words”, Gab elected to state on the public record that they would not moderate for “defamatory” content, in open violation of the laws of the country in which they selected their registrar.

Not ready for prime time doesn’t even begin to describe the level of strategic and legal incompetence demonstrated here.

This really isn’t that difficult. As I have repeatedly said, as I have repeatedly told Andrew Torba, moderation is a must. It is implicitely required by law, and for those who want access to the Play Store and the App Store, it is explicitly required by Google and Apple. More importantly, if you refuse to offer your users a reasonable form of redress they can easily afford when they are targeted for harassment, don’t pretend to be surprised or upset when they pursue alternate means to achieve their objectives just because those means happen to be more damaging to you.

I am the only one who pursued the course of action recommended by Gab. Considering the expense and the additional harassment that entailed, is it really surprising that everyone else opted for the free and anonymous course of action? In any event, Gab will find another registrar. I hope they will also find the common sense required to install some reasonable moderation policies, or they’re just going to find themselves right back in the same position in a matter of weeks.

That’s not encouraging

Sebastien Gorka tries to tell the anti-immigration Right to settle down about DACA, but in doing so, illustrates that neither he nor the President truly grasp its position.

Gorka: “Take a deep breath, and wait a day.” Sure enough, less than a day, nine hours later, we have the counterpoint from the press secretary and from the President himself. Look, having worked for the man, let me tell you that it’s neither of the options that you, or scenarios that you have painted. He knows, he knows why he is the president. He knows that the first policy issue that catapulted him into preeminence as a presidential candidate was the border, was immigration. He knows that when Jeff Sessions put on that hat, Jeff Sessions was bringing his stance on illegal immigration to his campaign to set him apart from the 16 other hackneyed establishment candidates the GOP had arrayed against him. The president’s not gonna go back.

The other scenario is also fallacious. I love reading how we have these uber-Trumpsters… Look, I’m here to support the president inside the White House or outside the White House. If I read another article on how the president is doing 48-dimensional chess…

Buskirk: Right.

Gorka: It’s just, no, he doesn’t do that. He’s not some kind of uber-Machiavellian operator. He is an instinctual actor, a masterful … But he’s not plotting a … Steve Bannon is the fifth dimensional Vulcan, OK? That’s how Steve Bannon operates. He is the super strategist. The president, and that’s why Steve and the president work so well together, the president, as we’ve discussed, is this present, natural, instinctual actor. He goes into these meetings in ways that the swamp doesn’t. Of course, they tweeted the second they got out of the Oval, because they’re politicians and they want to get reelected. The president doesn’t think like that. He’s thinking about the American interest, and at the end of the day, he is not going to sell us up the river, I tell you that.

Buskirk: Okay, so look, that’s extremely helpful. That’s why I really wanted to talk to you. You know the president as well as anybody, way better than most. What’s your understanding of what happened? What do you think is the right way to think about it?

Gorka: Okay, so two things are important. The way I explain what’s happened in the last seven days is the following. Number one, the original response to DACA from the president is quintessential Donald Trump. He said, “Look, this is un-American because it’s unconstitutional.” President Obama behaved like an emperor when he created DACA. He has no right to legislate from the Oval Office, and that’s why he told to the attorney general, “End it now.” That’s why AG Sessions said, “DACA is over.”

However, Donald Trump, if you’ve read anything about him, to get his own books, read the real books not the tag jobs, the real books about him. He is one of the most charitable, kind-hearted men you’ll ever meet. He doesn’t wear it on his sleeve, he’s very quiet about it, but he is a very warm-hearted individual. He is not prepared to see young men and women who have not committed any crime of their own doing, be deported from this nation. He said to Congress, “Guys, let’s work this out.” Criminals, we get rid of them, and he’s absolutely adamant. You’re a member of MS-13, you’re a Dreamer who’s killed somebody, as has happened, you are going to be imprisoned or be deported. End of story. For those people who have not committed any crime beyond being brought here as a child by their parents, we’ve got to find a solution that comports with our Judeo-Christian charitable basis. Those are the things we have to understand about what the president is doing.

This is why philosophical coherence, and intellectual precision, are so important. Because when you don’t have the guidance offered by those tools, you will have a tendency to make decisions based on your emotions. First, there is no “Judeo-Christian charitable basis”, so the entire premise is false. There is no need to find a solution that comports with something that does not exist; the Good Samaritan did not adopt and take into his house the children of the man he found beaten by the roadside.

Second, if Donald Trump is not prepared to see young men and women who have not committed any crime of their own doing be deported, he is not psychogically suited to be President. The law is clear, the principle is settled, the American people have been burned by such amnesties before and they are not going to accept another one, no matter how many sob stories about “Dreamers” are waved like red flags before the public.

However, if there is one thing that is clear about Donald Trump, it is that he is capable of learning from his mistakes. His base needs to be very clear about the fact that failing to keep his word on DACA is not acceptable.

Gab belatedly files suit

It would appear the additional discussions that delayed yesterday’s expected filing were not fruitful.

Free speech social media site Gab AI, Inc. filed a lawsuit in the United States District Court for the Eastern District of Pennsylvania against Google for violations of the Clayton Act and Sherman Act. The lawsuit stems from Google removing Gab from its Google Play Android app store on spurious grounds of “hate speech” arising from posts by users.

Google did not accuse Gab of hate speech, but used third party content as a pretext to justify its own business ends. Gab, a startup, aims to bring “folks together of all races, religions, and creeds who share in the common ideals of Western values, individual liberty and the free exchange and flow of information.”

According to Gab’s attorney, Marc Randazza, Google’s conduct is a straightforward violation of the antitrust laws “Google Play and Android have monopoly power in the app store market, and Google’s apps YouTube and Google+ compete directly against Gab. Google’s intimate partnership with Twitter, which also competes against Gab, makes Google’s control of all Android apps available through the Play Store a serious restraint of trade issue.”

Randazza noted, “regardless of Google’s pretextual justification for removing Gab, the effect is that they used their monopoly power in the app store to block an upstart competitor it in the social media app market, to the detriment of millions of consumers who value free speech.”

The monopoly issue may work for Gab. But I don’t like their chances for two reasons. First, Google’s resources. Second, the Gab team really seems to be flying blind on the moderation issue. Now, I obviously disagree with their position, which is why I have filed a petition against them. And considering that I had to do so due to their complete refusal to moderate their posts, I don’t see that they have any ability to claim they are abiding by Google’s terms of service. Which, of course, means they have handed Google a perfect excuse to stonewall them.

Oh, the irony…. This is mildly amusing.

Well, we’ve collected a whole lot of examples of defamation and defamation per se, but I don’t think Andrew is going to find them very useful to his case. The point is not that the other social networks don’t moderate effectively, the point is that Gab openly refuses to moderate at all. It is not up to Gab, or even the court, to define what Google considers to be “a sufficient level of moderation” when all Google has to do is demonstrate that Gab does not provide ANY moderation, even upon request.

UPDATE: Andrew Torba claims that Gab does moderate posts. That is likely true, to a very limited extent. The question is, is whatever level of moderation they presently provide sufficient when Gab’s management openly brags that they do not moderate for defamation or defamation per se as defined by their registrar, or by Texas law and the Texas courts, and that they will harass users who pursue legal means of redress.

Andrew TorbaPRO · @a
If our registrar requires us to remove something again we will publish it here and let everyone know that you whined to them because someone hurt your feelings with mean words on the internet.

Andrew TorbaPRO · @a
Note that these are recorded. Keep going. Please this will be fun. I am more alpha than you will ever be. Try me.

Andrew TorbaPRO · @a
Vox I’ll publish every email you ever sent us and phone calls which have been recorded, Please try me. You can destroy your personal brand all you want, but you’re not going to drag down Gab with it. Mark my words.

It seems to me that he’s doing an efficient job of dragging down Gab without any help from me. Here is a partial list of the posts being sent to Asia Registry for review by the LLoE. It demonstrates, rather conclusively, that Gab simply does not moderate to the standard set by Facebook and Twitter, and, more importantly, Google.

  • https://gab.ai/tdawg911/posts/12090691
  • https://gab.ai/FreeinTX/posts/12065490
  • https://gab.ai/FreeinTX/posts/12065748
  • https://gab.ai/FreeinTX/posts/12107799
  • https://gab.ai/FreeinTX/posts/12125780
  • https://gab.ai/FreeinTX/posts/12126457
  • https://gab.ai/FreeinTX/posts/12127469
  • https://gab.ai/FreeinTX/posts/12127738
  • https://gab.ai/FreeinTX/posts/12128833
  • https://gab.ai/FreeinTX/posts/12129102
  • https://gab.ai/FreeinTX/posts/12130342
  • https://gab.ai/FreeinTX/posts/12128833
  • https://gab.ai/FreeinTX/posts/12129450
  • https://gab.ai/FreeinTX/posts/12186103
  • https://gab.ai/Fashdaddey/posts/11862161
  • https://gab.ai/Fashdaddey/posts/11839913
  • https://gab.ai/roonyroo/posts/12180125
  • https://gab.ai/Valaranumenoriano/posts/12160268
  • https://gab.ai/Deacon_Jim/posts/12156043
  • https://gab.ai/GTKRWN/posts/12147100
  • https://gab.ai/gaystapo/posts/12112801
  • https://gab.ai/WilhelmL/posts/12090962
  • https://gab.ai/Ungern/posts/12086315
  • https://gab.ai/Pepe_Memes/posts/12077259
  • https://gab.ai/MorbiousStone/posts/12076537
  • https://gab.ai/Whiteknight007/posts/12071038
  • https://gab.ai/Pepe_Memes/posts/12067941
  • https://gab.ai/GTKRWN/posts/12067637
  • https://gab.ai/h4rdm0us/posts/12063396
  • https://gab.ai/h4rdm0us/posts/12062548
  • https://gab.ai/Pepe_Memes/posts/12061817
  • https://gab.ai/Pepe_Memes/posts/12060233
  • https://gab.ai/Pepe_Memes/posts/12046728
  • https://gab.ai/Pepe_Memes/posts/12041396
Regardless, to quote John Derbyshire’s recent column, fiat justitia ruat cælum.

Defiance will be answered

The Trump administration cancels visas from countries attempting to nullify deportation of their nationals:

The Trump administration announced Wednesday it has ordered the State Department to limit certain visas for Cambodia, Eritrea, Guinea, and Sierra Leone because those countries have refused to accept the return of its nationals who are deported from the United States.

“International law obligates each country to accept the return of its nationals ordered removed from the United States,” Acting Secretary of Homeland Security Elaine Duke said in a statement. “Cambodia, Eritrea, Guinea, and Sierra Leone have failed in that responsibility. The United States itself routinely cooperates with foreign governments in documenting and accepting its citizens when asked, as do the majority of countries in the world. However, these countries have failed to do so, and that one-way street ends with these sanctions.”

“American citizens have been harmed because foreign governments refuse to take back their citizens. These sanctions will ensure that the problem these countries pose will get no worse as ICE continues its work to remove dangerous criminals from the United States,” said U.S. Immigration and Customs Enforcement Acting Director Thomas Homan.

And if that’s not enough, up the ante and start taxing their corporations active in the USA. That is the one thing that terrifies every country; being blocked from access to the US market. This is smart. No foreign country should be permitted a veto over US domestic policy.

Justice’s casino

This is why it is a fool’s game to assume that any legal case is a certainty of any kind, no matter what the law says, and no matter how much legal precedent you can cite.

Recently retired federal appeals court Judge Richard Posner said he rarely looked to legal rules when deciding cases and often sought to skirt Supreme Court precedent.

“I pay very little attention to legal rules, statutes, constitutional provisions,” Posner told the New York Times in an interview published Monday. “A case is just a dispute. The first thing you do is ask yourself — forget about the law — what is a sensible resolution of this dispute?”

When confronting a case with some form of legal obstacle in the way, the former 7th Circuit Court of Appeals judge said he would look to circumvent whatever prevented him from reaching his desired result.

Any good lawyer will tell you that the law is whatever the presiding judge tells you it is. I was once the only witness in a civil case in which the documentary evidence precisely supported my testimony. It was as black-and-white, as open-and-shut, as a case could be. There was simply no way around the obvious conclusion. None at all.

But instead of simply deciding for the plaintiff, the judge offered a settlement of a coin toss. Heads and the plaintiff won the total amount sought. Tails and he only won half. Knowing that he had no case, the defendant’s attorney accepted the settlement and won the coin toss. The plaintiff received only half of what he was rightfully owed.

And that is why I have never had one single iota of confidence in the U.S. legal system ever since. Nothing that I have seen happen in it ever since has surprised me. Literally anything can happen; justice has nothing to do with it. The Italians call the legal system “un casino” and I think they are entirely right to do so.

Catalonia’s case for independence

A summary of the conclusion of European legal experts on Catalonia’s case for independence:

As   a   result   of   their   research   and reflections,   the   authors   come   to   the  following conclusions and recommendations on the Right to Decide and the Catalan Government’s call for an independence referendum in October the 1st:

1. The   evolution   of   the   negotiating   process   between   the   Catalan   and   Spanish governments since the re-establishment of democracy in 1977 through time has allowed us to   identify   key   moments   of   a   deteriorating   political   relationship   where   the Spanish government has  gradually  renounced  the  accommodation  of  Catalan  territorial  demands. The evolution of this relationship sheds a new light on the tortuous path towards the legally binding referendum on political independence to be held on the 1st October 2017.

2. The upsurge  in territorial  demands  towards  political independencewas  put on the political  agenda  by  organized  Catalan  civil  society  immediately after  the  passing  of  the Constitutional  Tribunal  ruling  in  2010. Additionally,  there  has  been  a  clear  shift  in  popularterritorial  preferences, moving  from  preferences  asking  for  the  maintenance  of  the  current “status quo” to demands of “political independence,” irrespective of people’s age.

3. Catalan popular demand for a referendum on political independence has been largely justified by the democratic “Right  to  Decide”, which has evolved from the more traditional and  long-standing legal framework to the “national right to self-determination”. In other words, demands   for   political   independence   have   been   legitimized   by   a   democratic principle invested in the Catalan people, reinforced by the repeated denial to accommodate Catalonia’s demands by the Spanish government.

4. From   an   international   law   perspective,   it   appears   clearly that   there   is   no international legal prohibition barring a sub-state entity from deciding its political destiny by assessing the will of its people. Both case law and state practice support this conclusion. State  practice  demonstrates  that  numerous  geographically  diverse  sub-state  entities  have expressed  the  will  of  their  people  regarding  independence.  The  practice  occurs  both  with and  without  the  consent  of  the  national  state.  Many  sub-state  entities  have  achieved independence  after  assessing  the  political  will  of  their  people. EU  member  states  have recognized  many  former  sub-state entities that assessed their people’s political will and decided to pursue independence.

5. As  regards European  Law,  in  the  absence of  specific  Treaty provision  on the right  of Self-determination for a European people without a Statein the territory of the EU, EU law does  not  forbid  the  exercise  of  its  Right  to  Decide  for  a  European  people  within  the  EU. There  are  even  numerous  Treaty  provisions  that  indicate  that  if  such  Right  were  to  be exercised,  EU  and  its  member  States  would  react  positively  to  a  new  European  State candidacy  to  join  the  EU.  Recent  and  consistent  practice  clearly  points  that  way.  Further, both  as  a  collectively  exercised  human  right  and  as  a  fundamental  norm  of  international Law, EU recognizes the Right to Decide.

6. As  regard  the  constitutionality  of  the  claim  for  the  Right  to  Decide, it  is  necessaryfrom  an  empirical  viewpoint,  and  fruitful  from  a  normative  one, togive  up  the  quest  for  a supreme  constitutional  interpreter. What  is  crucialin  a  constitutional  state that  is  faithful to the ambitions of constitutionalism isthe ongoing dialogue about, and engagement with, constitutional values and principles. Only this will make the constitution a living document, infused by the competing interpretations of values and principles that, by their very nature, admit various readings and conceptions. The quest for the final word is useless, illusory and possibly lethal from the political viewpoint of a healthy deliberative community.

7. In  that  respect,  the  debate  is  much  more open  than  what  one  might  think  at  first sight   by   examining   too   rapidly   the   basic   features   of   contemporary   constitutionalism, especially as it is illustrated by the Spanish constitutional system. Far from being disruptive of  the  constitutional  project  that was  adopted  in  1978,  the  Catalan  claim  to  the  Right  to Decide  on  its  political  future  precisely  testifies  to  a  genuine  commitment  to  the  ongoing constitutional dialogue that is legitimate in an open society.That is why simply dismissing this claim as “unconstitutional” cannot be an attitude that lives up to the high standard of political morality that is imposed by the ideal of constitutionalism.

8. Democratic  legitimacy  at  Catalan  and  Spanish  levels  may  both  be  legitimate,  even though  the  principle  of  external  preference  limits  the  capacity  of  Spain  to  permanently oppose the democratic choice of Catalonia. However, when conflicting political legitimacies compete,  there  is  a  duty  for  democratic  authorities  to  negotiate.  This  is  confirmed  by  the observation  ofinternational  practice  that  in  almost  all  instances,  the  sub-state  entity  and national state negotiate the contours of the assessment of political will.

9. Further,  in  a  genuine  liberal  democracy,  rule  of  law  may  not  trump  democratic legitimacy, nor the other way around; therefore, in a modern democratic State, rule of law and  democratic  legitimacy  need  to  be  reconciled and  cannot  in  the  long  term  remain opposed.  In  the  context  of  a  vote  of  self-determination,  as  is  the  case,  the  national framework  will  inevitably  be  inappropriate  because  the  existing  democratic  processes  to address the issue did not allow for a solution or a process to emerge. A change of scale thus appears necessary by justifying either locally or internationally(or both)the organization of a  referendum. If  Spanish  national  Authorities  deny  the  right  to  Catalonia  to  negotiate  its Right  to  Decide  within  the  Spanish  political  framework,  then  the  only  path  left  for Catalonia’s Authorities is the call for a self-determination referendum.

10.Thus, whatever the conflicting claims of legitimacy put forward by the political actors, international   practice   and   transconstitutional   jurisprudence   show   that   successful   self-determination  processes  always  rely  at  some  point  on  a  negotiation  procedure.  In  that perspective, the experts recommend the exploration of an earned sovereignty negotiating process  within  the  framework  of  the  EU.  This  would  imply  involvement  by  EU  institutions; we consider it possible in the perspective of a negotiation within the EU, fully implying Spain in seeking for Catalonia a constrained sovereignty solution, as a full member of the EU.

It’s a strong point to say that a democratic State cannot simultaneously declare its legitimacy is based on democracy while attempting to deny democratic self-determination to a secession-minded part of its populace. Post-Brexit, the EU is much more likely to support this political fragmentation on the part of its member-states, since smaller microstates are far less likely to believe they can survive without being subject to the EU.