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Civil Rights Group Indicted, FCC Fines Under Fire & Military Draft · Bloomberg Law

0:02
Speaker 1: You're listening to Bloomberg Law with June Grossel from Bloomberg Radio.
0:09
Speaker 2: The Southern Poverty Law Center has positioned itself as the
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Speaker 2: country's pre eminent hate group watchdog, putting out an influential
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Speaker 2: list of hate groups. The civil rights nonprofit has for
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Speaker 2: years faced scrutiny from Republicans who claim its unfairly targeted
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Speaker 2: right wing organizations, and this week, the Justice Department indicted
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Speaker 2: the SPLC on federal fraud charges, alleging it improperly raised
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Speaker 2: millions of dollars to secretly pay leaders of hate groups
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Speaker 2: for inside information. According to Acting Attorney General Todd Blanche.
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Speaker 3: The money was passed from SPLC to one sham account,
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Speaker 3: to a second sham account, and then loaded onto prepaid
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Speaker 3: cards to give to the members of the extremist groups.
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Speaker 2: The SBLC said it's outraged by the false saleyations. It's CEO,
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Speaker 2: Brian Fair, said, today the federal government has been weaponized
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Speaker 2: to dismantle the rights of our nation's most vulnerable people,
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Speaker 2: and any organization like ours that tries to stand in
1:13
Speaker 2: the breach. My guest is an expert in white collar crime,
1:18
Speaker 2: Professor John Coffee of Columbia law school Jack. Until recently,
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Speaker 2: the SPLC was working with the FBI to provide the
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Speaker 2: intel that was gathered by its informants. That's until FBI
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Speaker 2: Director Cash Patel severed the relationship last year. Is there
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Speaker 2: anything illegal about hiring informants the way.
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Speaker 4: That they did, I don't think so. There could be
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Speaker 4: cases of ille gallvie if you are stealing confidential business
1:48
Speaker 4: in probation from an organization. There's a famous Supreme Court
1:51
Speaker 4: case involving a wolf creature on reporter who sold copies
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Speaker 4: of his story to brokers who traded on it before
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Speaker 4: it was published. That was seen as a misappropriation of
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Speaker 4: the Wall Street Journal's right to confidential information. So you
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Speaker 4: could push that a little bit. But that's not what
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Speaker 4: they're alleged. They were alleging fraud on the donors. That's
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Speaker 4: what they keep saying again and again, and fraud on
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Speaker 4: the donors. I think you could put half of the
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Speaker 4: donors on the stand and they would testify that they
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Speaker 4: were very happy that the money was used to get
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Speaker 4: sources within violent organizations to tell the SPLC or what
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Speaker 4: they were doing. I don't think there is any reason
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Speaker 4: my nonprofit organization can't undertake surveillance trying to reveal to
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Speaker 4: the public the behavior of violent and extreme organization. And
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Speaker 4: by the way, the FBI does the same thing. They
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Speaker 4: pay even larger amounts to informance over the years to
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Speaker 4: infiltrate organizations on both the left and the right.
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Speaker 2: So then you don't think this charge that the SPLC
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Speaker 2: was funding extremist groups will hold up.
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Speaker 4: Well, you're allowed to fund the extremist groups. If you
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Speaker 4: want to give money to any party, including the Communist Party,
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Speaker 4: you're allowed to do that. They gave them money to
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Speaker 4: their field agents. The field agents may have passed some
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Speaker 4: of that on to the kokclas Klan, but they were
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Speaker 4: basically paying people to serve as undercovered agents, which is dangerous.
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Speaker 4: There can be reprisals and retribution, and people don't do
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Speaker 4: anything dangerous for that being well compensated. Moreover, although they
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Speaker 4: talk about a million dollars, these were payments made annually
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Speaker 4: over nine years, and if you divide a million dollars
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Speaker 4: by nine, it's a more reasonable number to have paid
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Speaker 4: an agent to do something. It was dangerous.
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Speaker 2: The indictment also charges bank fraud, alleging that the SBLC
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Speaker 2: created bank accounts for fictitious entities and use those to
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Speaker 2: send money from donors to informants.
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Speaker 4: Well, lots of people do this. I think you can
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Speaker 4: find cases where that might be criminal if it was
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Speaker 4: part of a scheme to defraud. But no one is
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Speaker 4: defrauding the bank and the bank said you have to
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Speaker 4: change this, it doesn't look appropriate, and they did change it.
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Speaker 4: They cooperate. I don't think there's any real bank fraud here.
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Speaker 4: That is, I don't think this was material information to
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Speaker 4: the bank. It was organizations that were really nonexistent. But
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Speaker 4: I don't know that there was any fraud committed on
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Speaker 4: the bank.
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Speaker 2: And what about the money laundering charge?
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Speaker 4: Now, money laundering can only be a crime if you've
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Speaker 4: engaged in a crime and take the prostedge of that
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Speaker 4: crime and move it through the financial system. If there
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Speaker 4: is no crime, there is no money laundering.
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Speaker 2: So do you think the Southern Poverty Law Center could
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Speaker 2: get this indictment dismissed before trial?
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Speaker 4: I don't think it'll be upheld. Depends on the judge
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Speaker 4: handling the case. Some judges will let the case go
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Speaker 4: forward to see if evidence is accumulated and looks promising
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Speaker 4: a trial. But I do think there is a good
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Speaker 4: chance that this could be dismissed at the outset. I've
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Speaker 4: read lots of indictments. Apartment Justice usually writes strong, specific,
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Speaker 4: well reasoned indictments. This is vague and it wanders all around.
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Speaker 4: I think it's a very thin and poorly written indictment.
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Speaker 4: It won't surprise anyone to say this appears to be
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Speaker 4: part of a in which the Trump administration has gone
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Speaker 4: against its political enemies. You can talk about cases that
5:06
Speaker 4: have been dismissed, including against the Attorney General of New
5:09
Speaker 4: York State and other persons, and they are still trying
5:13
Speaker 4: to pursue a case against the Chairman of the Federal Reserve.
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Speaker 4: Anytime there's a political enemy, there tends to be a
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Speaker 4: criminal investigation of them.
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Speaker 2: I mean, the SBLC has been the target of Republicans
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Speaker 2: for years, and House Republicans held a hearing centered on
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Speaker 2: the SBLC in December.
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Speaker 4: It's quite possible that Southern Popular Law Center does controversial
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Speaker 4: things that's not criminal. You're going to have to show
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Speaker 4: that they deflauded some victim. They've been doing this for
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Speaker 4: thirty years, so with nothing new, it's been clear they've
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Speaker 4: been getting inside information about these organizations. They didn't tell
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Speaker 4: the various organizations they were looking into that they were
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Speaker 4: conducting surveillance of them. But no one does. The FBI
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Speaker 4: does this at a much greater volume, and they helped
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Speaker 4: tell people we're conducting surveillance.
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Speaker 2: Brought up fed Chair Powell, what do you think about
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Speaker 2: the investigation into him?
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Speaker 4: Well, I think that's another example of what looks like
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Speaker 4: a political retaliation. You aren't doing what I want you
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Speaker 4: to do. Chairman Powell isn't even criticizing the president. He's
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Speaker 4: not engaged in political criticism. He's simply doing what he
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Speaker 4: thinks is is obligation, which is to retain interest rates
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Speaker 4: at a level that protects the economy from a rapid
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Speaker 4: inflation and disaster. And he's facing reprisal, criminal reprisal for
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Speaker 4: a rather strange and not yet carefully spelled out activities
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Speaker 4: in connection with the renovation of a further reserve bank.
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Speaker 2: Thanks so much for taking the time, Jack. That's Professor
6:39
Speaker 2: John Coffee of Columbia Law School. AT and T and
6:43
Speaker 2: Verizon are trying to recoup the one hundred four million
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Speaker 2: dollars they paid in penalties after the FCC said they
6:51
Speaker 2: had illegally sold customer's location data. The companies are challenging
6:56
Speaker 2: the FCC's process as unconstantitutional at the Supreme Court, saying
7:02
Speaker 2: the fines were assessed without giving them the right to
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Speaker 2: a jury trial. Most of the justices appeared skeptical. Chief
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Speaker 2: Justice John Roberts told AT and T's lawyer, it seemed
7:14
Speaker 2: like a PR problem.
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Speaker 1: Council.
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Speaker 5: I wonder if, though, at the end of the day,
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Speaker 5: you're really just talking about a PR problem, right, and
7:21
Speaker 5: you're just saying they're big letters. The language said we
7:23
Speaker 5: did something bad, and that's so everybody has to pay
7:29
Speaker 5: so they don't get a bad PR. And I'm just
7:33
Speaker 5: wondering in terms of the substantive legal issue, though you
7:37
Speaker 5: are not obligated to pay until you get a jury.
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Speaker 2: And Justice Amy Coney Barrett said, just don't pay the fines.
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Speaker 6: Mister, Well, if they are final and if they have
7:48
Speaker 6: like in your view, this effect, why do you have
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Speaker 6: to pay them?
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Speaker 2: But surprise, surprise, the FCC made a concession that amounts
7:56
Speaker 2: to a win for the companies. The Justice Department lawyer
8:00
Speaker 2: Vivek Suri said companies don't have to pay FCC penalties
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Speaker 2: right away, and the FCC can't try to collect a fine,
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Speaker 2: add interest or punish a company for not immediately paying that.
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Speaker 7: The agency cannot start collecting the money as the SEC
8:17
Speaker 7: could in the darkasy scheme. It has to go to
8:20
Speaker 7: court in order to collect the money. Second, there's no
8:23
Speaker 7: penalty or punishment for failing to pay that order. And
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Speaker 7: third that interest doesn't start cruing until the penalty becomes.
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Speaker 2: Just as Brett Kavanaugh call that a win for the
8:35
Speaker 2: companies and suggested they might be able to get their
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Speaker 2: money back. Joining me is an expert in telecommunications and
8:43
Speaker 2: internet law. Daniel Lyons, a professor at Boston College Law School.
8:48
Speaker 2: Daniel explained the issue that court was considering about the
8:51
Speaker 2: right to a jury trial.
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Speaker 6: Historically, when regulated entity at the SEC violates FCC rules
9:00
Speaker 6: has reserved the right to adjudicate.
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Speaker 1: These cases in house.
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Speaker 6: So in this case, AT and T and Verizon were
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Speaker 6: alleged to have I guess the right way to say
9:09
Speaker 6: it is not taken enough care of customer data that
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Speaker 6: were shared with third parties, and so they were held
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Speaker 6: in violation of a particular part of the Telecmmunications Act
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Speaker 6: and were assessed between the two of them a fine
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Speaker 6: of one hundred million dollars. So the question that has
9:24
Speaker 6: been at the center of this case from the beginning
9:26
Speaker 6: is were they entitled to a jury trial on those facts.
9:30
Speaker 6: At the time that the FCC proceding began, most of
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Speaker 6: the admin law universe thought it was okay for agencies
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Speaker 6: to handle these cases in house rather than having to
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Speaker 6: go to court. But a couple of years ago the
9:42
Speaker 6: Supreme Court issued a case called SEC versus Arcasey, which
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Speaker 6: said that in certain cases, agency adjudication of liability outside
9:52
Speaker 6: of the court system violated the Seventh Amendment, which says
9:55
Speaker 6: that in cases at law where a matter in controversies
9:58
Speaker 6: more than twenty dollars, that the defendant has a right
10:01
Speaker 6: to a trial before jury. And of course there's no
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Speaker 6: juries at agencies. So in the case of this, AT
10:07
Speaker 6: and T and Verizon finds AT and T and Verizon
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Speaker 6: both challenged the preceding after Jarkazy, alleging that like the
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Speaker 6: SEC proceeding in Jarkazy, these proceedings were analogous to suit
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Speaker 6: at court of law and therefore should not have been
10:24
Speaker 6: handled in house. Instead, they should have been tried by
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Speaker 6: the agency before a jury in court.
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Speaker 2: So, going outside the legal questions for a minute. I
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Speaker 2: find it hard to believe that those two carriers would
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Speaker 2: fare well before a jury overclaims of failure to protect
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Speaker 2: customer data. I mean, is this just a strategy to
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Speaker 2: recoup the fines or do they really mean it.
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Speaker 6: It's a good question. I think the short answer is yes,
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Speaker 6: because when you go before the court system, you get
10:54
Speaker 6: a number of procedural protections that you wouldn't get before
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Speaker 6: the agency. So the federal rules of evidence apply, right,
10:59
Speaker 6: or the analog if you're a state law case. There
11:02
Speaker 6: are somewhat analogous protections in some agency adjudications, but not
11:06
Speaker 6: all of them, and they're never as robust as what
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Speaker 6: you get in a federal court. More importantly, you get
11:10
Speaker 6: in a decision maker that's not an employee of the agency.
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Speaker 1: Right.
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Speaker 6: Even in the most formal of agency adjudications, they're being
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Speaker 6: decided by an administrative law judge. The agency takes some
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Speaker 6: efforts internally to make sure that the adjudication side of
11:25
Speaker 6: the house is different from the enforcement side of the house.
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Speaker 6: But that's I think many critics would say, a pale
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Speaker 6: imitation of the constitutional separation of powers that we require
11:34
Speaker 6: outside of the admin law context.
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Speaker 2: So there was a lot of discussion in the Supreme
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Speaker 2: Court arguments about whether the FCC's finds are binding or
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Speaker 2: non binding, particularly just as Cavanon, just as Gorse It's
11:49
Speaker 2: pressed on that explain why that's important.
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Speaker 6: Yeah, So it's a little bit nuanced because the agency's
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Speaker 6: position has changed over the course of the preceding says
12:00
Speaker 6: Kalvanaugh had a great quip that Verizon's reply REEF started
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Speaker 6: by saying the government is in retreat. Kavinaugh agreed with
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Speaker 6: that in sort of. When the case began, the agency's
12:09
Speaker 6: view was there's no Seventh Amendment problem with this, but
12:12
Speaker 6: that was before Jarkazy. After Jarkasey, the agency's view was
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Speaker 6: the Seventh Amendment is satisfied because even though we're deciding
12:20
Speaker 6: liability and issueing a fine in house, the entities are
12:24
Speaker 6: not required.
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Speaker 1: To pay immediately.
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Speaker 6: So after an FCC proceeding, AT and T has two choices, right,
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Speaker 6: So I assume they are found you violated the law
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Speaker 6: and you owe a forty seven million dollar fine. AT
12:36
Speaker 6: and T gets two choices. It can pay the fine
12:39
Speaker 6: and appeal the liability decision before the DC Circuit, or
12:43
Speaker 6: it can do nothing, basically say come at me and
12:47
Speaker 6: wait to see if the Department of Justice sues on
12:49
Speaker 6: behalf of the agency to collect the fine. In the
12:52
Speaker 6: latter case, the trial is denovo before a court, but
12:56
Speaker 6: in the former case right going straight to if the
12:58
Speaker 6: agency pays the finding go straight to the Court of Appeal.
13:02
Speaker 6: The court of Appeal doesn't have a jury, and so
13:04
Speaker 6: it's essentially waving the jury trial right in order to
13:07
Speaker 6: be able to clear its name. So AT and T
13:09
Speaker 6: was of the view that this is sort of a
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Speaker 6: Hobs's choice, right. I can either challenge the fact that
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Speaker 6: I violated the law, in which case I have to
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Speaker 6: wave my jury right, or I can sit around with
13:19
Speaker 6: this sort of damicals hanging over my head forever and
13:22
Speaker 6: see if the DOJ ever comes after me. So at
13:25
Speaker 6: the Fifth Circuit and then leading up to the Supreme
13:29
Speaker 6: Courts taking a cerciari, the agency's position was the fact
13:34
Speaker 6: that you have the option of waiting and seeing if
13:37
Speaker 6: we'll sue you is enough to guarantee your jury trial right,
13:39
Speaker 6: because you'll get a trial de novo eventually, even though
13:44
Speaker 6: you already have been basically tried before the agency.
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Speaker 1: X and T.
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Speaker 6: There are two I think potential problems with this. One
13:52
Speaker 6: is you're not guaranteed a jury trial, right, right. You're
13:55
Speaker 6: guaranteed a jury trial right if and only if the
13:57
Speaker 6: DOJ chooses to pursue the fine. So you may say, well,
14:00
Speaker 6: that's fine. If the DAJA doesn't pursue the fine, you
14:02
Speaker 6: don't have to give up the money, But the liability
14:05
Speaker 6: ruling would still stand. And finding that a carrier has
14:09
Speaker 6: violated the law can have collateral consequences. A PR issues
14:13
Speaker 6: right big headlines at and t mishandles customer information, but
14:17
Speaker 6: b it can affect future SEC proceedings. So wireless carriers
14:22
Speaker 6: operate pursuant to a license to use the spectrum in
14:25
Speaker 6: order to be able to send the radio waves to
14:27
Speaker 6: and from your cell phone. Those licenses are issued by
14:31
Speaker 6: the government for a fixed period, and when the SEC
14:32
Speaker 6: decides to renew those licenses, it takes into consideration were
14:36
Speaker 6: you a good citizen and willful violations of the law
14:39
Speaker 6: can count against you. It can be a grounds for
14:42
Speaker 6: the SEC to say we will not renew your license
14:44
Speaker 6: going forward. So I think the agency eventually realized the
14:48
Speaker 6: difficulties of this argument as well, because by the time
14:50
Speaker 6: they were before the Supreme Court and in an argument yesterday,
14:54
Speaker 6: the agency's position was that what happens that the agency
14:56
Speaker 6: is completely not binding. It's essentially the equivalent of of
15:00
Speaker 6: a charging document. The FCC's investigated this and is now
15:03
Speaker 6: authorizing the DOJ to go after the entity on these
15:08
Speaker 6: grounds and for this amount of money. Only if the
15:10
Speaker 6: DOJ then chooses to pursue it in court, is AT
15:14
Speaker 6: and T ever liable and ever potentially have to pay
15:17
Speaker 6: the fine. So there's a sense in which, no matter
15:19
Speaker 6: what happens in the opinion, AT and T and Verison
15:21
Speaker 6: have won a huge victory already, and I think many
15:24
Speaker 6: of the justices recognized that going forward, the adjudication process
15:28
Speaker 6: is going to be very different than it was in
15:29
Speaker 6: the past. The basic question left over is kind of
15:33
Speaker 6: what possibly can be the preclusive effect of those not
15:36
Speaker 6: binding orders in collateral proceedings.
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Speaker 2: As to the question about whether AT and T and
15:42
Speaker 2: Verizon Seventh Amendment rights were violated, did you think a
15:46
Speaker 2: majority of the justices felt they weren't violated.
15:50
Speaker 6: I will say he answers a little bit more nuanced.
15:53
Speaker 6: I think the agency has conceded that under the way
15:56
Speaker 6: the agency did business up until this case, it would
15:58
Speaker 6: have been a Seventh Amendment violation, which, like I said,
16:00
Speaker 6: I think is already a huge win for AT and T.
16:03
Speaker 6: I think the question going forward is does the agency's
16:07
Speaker 6: disclaimer of any bindingness by the FCC order solve that problem.
16:13
Speaker 6: It seems like much of the court said yes, if
16:16
Speaker 6: we accept the government's concession that none of these orders
16:20
Speaker 6: are binding unless and until the DOJ seeks to enforce
16:23
Speaker 6: them in court, then it's probably not a Seventh Amendment issue.
16:26
Speaker 6: I think you're probably going to get a majority on that,
16:28
Speaker 6: but I think the advocates were still disputing kind of
16:31
Speaker 6: what not binding means. The FCC wanted to hold on
16:35
Speaker 6: to the fact that if we find facts in the
16:37
Speaker 6: earlier proceeding, we might be able to rely upon those
16:40
Speaker 6: in a later proceeding because the later proceeding would also
16:43
Speaker 6: be subject to judicial review before a jury, and I
16:46
Speaker 6: think AT and T was uncomfortable making even that concession.
16:49
Speaker 6: But this feels like a minor issue in the grand
16:52
Speaker 6: scheme of the case.
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Speaker 2: Question about whether AT and T will be able to
16:57
Speaker 2: get back what they paid. Kevin All suggests they were
17:00
Speaker 2: duped by the FCC and they should get their money back.
17:04
Speaker 1: Yeah.
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Speaker 6: So, up until the grant of cerciari. In this case,
17:09
Speaker 6: the FCC was under the view that we ordered you
17:11
Speaker 6: to pay this fine, and even though we have to
17:14
Speaker 6: wait for the DOJ to enforce it, if you want
17:17
Speaker 6: to seek your right for immediate appeal, you have to pay.
17:19
Speaker 6: This is under DC circuit precedent. If now the agency
17:22
Speaker 6: has changed its position in saying, actually, although the order
17:24
Speaker 6: said this is a fine, you have to pay it,
17:27
Speaker 6: we didn't really need it. Justice Kavanaugh's concern was, well,
17:29
Speaker 6: AT and T then paid because they thought they had to,
17:32
Speaker 6: and now you're saying they don't.
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Speaker 1: I think the.
17:34
Speaker 6: FCC had a good response to that, which is, well,
17:36
Speaker 6: we told them they always had the option to wait
17:39
Speaker 6: and not pay and then see if the DOJ enforces.
17:42
Speaker 6: But also if you think they've been duped, that's probably
17:44
Speaker 6: a good question to answer on remand right. So raise
17:46
Speaker 6: the question, then remand it back to the district court
17:49
Speaker 6: for further fact finding on that question. I think that's
17:51
Speaker 6: probably fair.
17:51
Speaker 2: I mean, what are the chances that they'll get the
17:53
Speaker 2: money back?
17:54
Speaker 6: I actually think it sounds pretty good at this point. Really,
17:56
Speaker 6: I guess the key question is is the DOJ then
17:59
Speaker 6: going to go ahead and file a separate lawsuit, in
18:01
Speaker 6: which case we will get exactly where you started. You're questioning,
18:04
Speaker 6: which would be a trial before a jury of att
18:08
Speaker 6: and verising customers about whether their information was mishandled. It
18:12
Speaker 6: may or may not go the way the carriers want
18:13
Speaker 6: them to. I think that's for the next chapter in
18:16
Speaker 6: this case. Right now, they're trying to get out of
18:17
Speaker 6: a nearly certain find by the agency, and it seems like,
18:20
Speaker 6: regardless of what the court does, they've gotten a concession
18:23
Speaker 6: that the find is currently not binding on them. So
18:25
Speaker 6: I think they're going to try to get their money back.
18:27
Speaker 2: Good luck with that. So I've read that this decision
18:31
Speaker 2: could have implications for other federal agencies that assess similar
18:36
Speaker 2: civil penalties before holding a jury trial. Even though the
18:39
Speaker 2: FCC has made those concessions here, does the decision still
18:44
Speaker 2: have those implications for other agencies?
18:46
Speaker 1: Does?
18:46
Speaker 6: Because the key issue I think the problem for the
18:49
Speaker 6: FCC is the statue doesn't say anything about it being
18:52
Speaker 6: not binding. In fact, the statues is quite the opposite.
18:54
Speaker 6: It says that you have been assessed and uses much
18:57
Speaker 6: more mandatory language. It's language that lots of a agency
19:00
Speaker 6: enforcement statutes use. And if the Supreme Court says, in
19:05
Speaker 6: order to avoid a constitutional Seventh Amendment problem, we're going
19:08
Speaker 6: to interpret this statute to only be not binding. As
19:11
Speaker 6: the Sec suggests, that's going to have a ripple effect
19:14
Speaker 6: to many other agencies as well. What it does is
19:16
Speaker 6: it turns what is right now in a largely in
19:20
Speaker 6: house alternative, a cheaper alternative to going to court in
19:24
Speaker 6: order to settle disputes, to be much more like a
19:27
Speaker 6: prosecutor deciding whether or not to charge a case. The
19:30
Speaker 6: effect of this is going to be to move the
19:32
Speaker 6: question of whether a party is actually liable away from
19:36
Speaker 6: agencies and more in toward courts. So right now, agencies
19:41
Speaker 6: adjudicate a lot of cases in house as an alternative
19:44
Speaker 6: to going to court because it's cheaper, it's faster. If
19:46
Speaker 6: this statute and several others like it are interpreted as
19:49
Speaker 6: making those agency decisions only not binding unless and until
19:53
Speaker 6: the DOJ sews to enforce them in court, it's going
19:56
Speaker 6: to make that cheap quick resolution of in force finds
20:00
Speaker 6: much less likely to happen. So agencies will stop sort
20:04
Speaker 6: of adjudicating many of these cases, or at least fewer
20:07
Speaker 6: of I would say, some of them will still handle
20:09
Speaker 6: in house, but more of them will be moved into
20:10
Speaker 6: the court system.
20:11
Speaker 2: Do you see this case as a challenge to the
20:14
Speaker 2: power of administrative agencies?
20:16
Speaker 6: This is consistent with the broader trend in administrative law
20:20
Speaker 6: that we've been seeing for a long time with this
20:22
Speaker 6: Supreme Court. Agencies have always been uncomfortable entities for folks
20:28
Speaker 6: who believe in sort of an originalist conception of government,
20:31
Speaker 6: because the separation of powers between the executive, the legislative,
20:36
Speaker 6: and the judiciary are all mashed together in an agency.
20:39
Speaker 6: It feels like the long term project of this Court
20:42
Speaker 6: has been to try to unwind those and make agencies
20:46
Speaker 6: much more into what they appear to be on the
20:48
Speaker 6: government org chart right, a branch of the executive as
20:51
Speaker 6: opposed to entities that mix the powers in biotional separation
20:55
Speaker 6: of powers. Charcasi was a big move in that direction,
20:57
Speaker 6: and I think this decision will probably advance that ball
21:00
Speaker 6: a little bit more.
21:00
Speaker 2: That was a great explanation of the conservative justice's attitude
21:05
Speaker 2: toward the so called administrative state. Thanks so much for
21:09
Speaker 2: joining me, Daniel. That's professor Daniel Lyons of Boston College
21:14
Speaker 2: Law School. The federal government will begin automatically registering eligible
21:20
Speaker 2: men between the ages of eighteen and twenty five for
21:23
Speaker 2: the military draft starting in December. The measure was included
21:27
Speaker 2: in the National Defense Authorization Act that President Trump signed
21:32
Speaker 2: last December. This change is getting more attention in light
21:36
Speaker 2: of the US war with Iran and raising questions about
21:40
Speaker 2: whether it's setting the stage for a draft. Joining me
21:43
Speaker 2: is Jeremy Kessler, a professor at Columbia Law School. He
21:47
Speaker 2: has a book coming out entitled Conscription and Constitutional Change
21:51
Speaker 2: in twentieth century America. What is the situation right now
21:56
Speaker 2: with registering for the draft.
21:59
Speaker 1: The new law has an gone into effect yet, so
22:01
Speaker 1: right now men between the ages of eighteen and twenty
22:04
Speaker 1: five are still obligated to send in a registration card
22:08
Speaker 1: or sign up online for the draft. But as of
22:12
Speaker 1: December twenty twenty six, what's supposed to happen is the
22:15
Speaker 1: Selective Service System will issue some regulations that implement automatic registration.
22:22
Speaker 1: What that will mean starting at the end of this
22:24
Speaker 1: year is that the Selective Service System is going to
22:28
Speaker 1: draw on Social Security Administration and DHS databases to essentially
22:34
Speaker 1: get a picture of all young men in the United
22:37
Speaker 1: States between the ages of eighteen and twenty five and
22:40
Speaker 1: will automatically register to them for the draft. And that's
22:43
Speaker 1: that's the new thing.
22:44
Speaker 2: And is this because a new law was passed.
22:47
Speaker 1: It's an amendment to the National Defense Authorization Act, which
22:50
Speaker 1: is a kind of omnibus piece of legislation that covers
22:54
Speaker 1: many aspects of military preparedness. And it basically just amends
23:00
Speaker 1: effectively the Military Selective Service Act, which is the squad
23:03
Speaker 1: that's been on the books in various forms for decades.
23:07
Speaker 1: And indeed, a lot of it goes back to nineteen
23:10
Speaker 1: forty when we had the kind of first peacetime draft
23:13
Speaker 1: law prior to World War Two. So that law has
23:16
Speaker 1: been amended and modified countless times under different circumstances. And
23:22
Speaker 1: what this amendment does is it just says, instead of
23:25
Speaker 1: having since nineteen eighty, which is when President Carter reinstated
23:30
Speaker 1: the registration requirement, every guy in the United States when
23:35
Speaker 1: they turned eighteen, with a few exceptions, was obligated by
23:39
Speaker 1: law to register for the draft. You know. So that's
23:42
Speaker 1: what I did when I was eighteen. That's what most
23:45
Speaker 1: folks have done. You have to mail in a card,
23:47
Speaker 1: or later, when we had, you know, the internet, you
23:49
Speaker 1: had to go through an online portal, So the obligation
23:52
Speaker 1: was on the individual to affirmatively register. If they didn't
23:56
Speaker 1: affirmatively register, they were technically committing a federal crime. No
24:00
Speaker 1: one really got prosecuted for not registering since this nineteen
24:04
Speaker 1: eighty requirement. But the way they would kind of get
24:07
Speaker 1: you is if you applied for federal loans, federal student loans,
24:12
Speaker 1: or if you applied for an actual job with the
24:14
Speaker 1: federal government, you'd be denied the loans, who denied the
24:17
Speaker 1: job if you hadn't actually registered for the draft. So
24:19
Speaker 1: that was a primary enforcement mechanism. But this amendment to
24:22
Speaker 1: the Military Selective Service Act does says there's no more
24:26
Speaker 1: affirmative obligation. You don't have to take any step to register.
24:30
Speaker 1: We will register you ourselves.
24:32
Speaker 2: Why the change. Isn't it better to have people registering
24:36
Speaker 2: themselves than having the government looking through databases and then
24:41
Speaker 2: at some point perhaps trying to track them down.
24:44
Speaker 1: I think that's a great question. So one thing I
24:47
Speaker 1: will say is that this push for automatic registration has
24:51
Speaker 1: been i won't say a priority, but has been a
24:53
Speaker 1: goal of a bipartisan group of folks who are interested
24:57
Speaker 1: in kind of streamlining, mainstreaming national service you know, So
25:02
Speaker 1: I wouldn't think of the automatic registration requirement simply as
25:05
Speaker 1: like a Trump initiative. This has been debated several times
25:09
Speaker 1: over the past many years, right, And one way of
25:12
Speaker 1: looking at it is just this is more efficient. Why
25:16
Speaker 1: require you know, when you turn eighteen? Lost of things
25:18
Speaker 1: are going on. It's your eighteenth birthday. Why expect eighteen
25:22
Speaker 1: year olds to like figure out, Oh, I have to
25:25
Speaker 1: send in, you know, a letter, or I have to
25:27
Speaker 1: go online to register for the draft, Like the federal
25:30
Speaker 1: government knows you exist, either because you have a security
25:34
Speaker 1: number or because if you're an immigrant, you've had a
25:38
Speaker 1: point of contact with you know, the immigration authorities for
25:41
Speaker 1: the most part. So why not streamline this? That's the
25:43
Speaker 1: like nice story. But your question, wouldn't it be better
25:47
Speaker 1: to maintain the affirmative obligation? I think is a very
25:49
Speaker 1: smart one, because there's a downside. Even if you accept
25:53
Speaker 1: that streamlining automatic registration makes sense, And even if you
25:57
Speaker 1: think that like the ability to draft people is idea,
26:01
Speaker 1: there's a downside. And here's the downside with automatic registration. Okay,
26:05
Speaker 1: so now everyone's registered. Great, from the standpoint of you're
26:09
Speaker 1: a military planner, you want to know the total population
26:12
Speaker 1: of people you could potentially draft. They're registered, how do
26:16
Speaker 1: you draft them? And the issue I'm getting at is
26:20
Speaker 1: just because you know that a person exists, because you
26:23
Speaker 1: have their social Security number and you know they're eighteen,
26:25
Speaker 1: or you have their immigration records, doesn't mean you know
26:28
Speaker 1: where they live, doesn't mean you know how to get
26:31
Speaker 1: in contact with them. So I just want to flag
26:35
Speaker 1: that the case for doing this right is efficiency, But
26:38
Speaker 1: I'm not sure those efficiencies will pay off if you
26:42
Speaker 1: actually start to try to classify and induct these automatically
26:46
Speaker 1: registered people, because they have no idea that this is
26:48
Speaker 1: even going on.
26:50
Speaker 2: And I think many people when they hear about this
26:54
Speaker 2: are going to question why they're doing this. Are they
26:58
Speaker 2: thinking about reinstating a military draft.
27:02
Speaker 1: I think that's a fair question. I would say that
27:07
Speaker 1: five or ten years ago, I think when you started
27:10
Speaker 1: to get a new round of interest in national service,
27:15
Speaker 1: not necessarily military service, but you know, some Democrats and
27:18
Speaker 1: some Republicans have floated, wouldn't it be great if everyone
27:22
Speaker 1: had some national service publication, whether that's like a Teacher
27:24
Speaker 1: for America type thing or a military service.
27:27
Speaker 4: What have you?
27:28
Speaker 1: As those folks made those kinds of arguments. I think
27:31
Speaker 1: you also saw this more technocratic idea of automatic registration.
27:34
Speaker 1: We should at least know what the full population of
27:36
Speaker 1: people who might be subject to such a national service
27:39
Speaker 1: requirement are. All of that when that was going on
27:42
Speaker 1: ten years ago or so, I don't think that meant
27:45
Speaker 1: we were moving back towards a draft. Today, however, I
27:49
Speaker 1: think things are quite different. So in the current context,
27:53
Speaker 1: with conflict with Russia, with China, and obviously most aenetically
27:57
Speaker 1: right now with Iran, I think it would be silly
27:59
Speaker 1: to not interpret this move to automatic registration in the
28:03
Speaker 1: context of like an increasingly bellicose global environment. That's one two,
28:10
Speaker 1: And this is a point I've made in a recent
28:13
Speaker 1: forthcoming article in Boston University Law Review. I don't think
28:17
Speaker 1: the general public is aware, and I actually don't think
28:19
Speaker 1: most politicians are aware that within a variety of military
28:25
Speaker 1: and national security think tanks that have been observing the
28:28
Speaker 1: conflict between Russia and Ukraine, for instance, and that most
28:32
Speaker 1: recently have been observing what's going on in Iran, I
28:35
Speaker 1: don't think folks are aware that there's a growing sense
28:37
Speaker 1: that actually, if we were to get into a land war,
28:40
Speaker 1: even in a limited land war with any of these
28:43
Speaker 1: significant powers Russia, Iran, or China, and maybe even less
28:47
Speaker 1: significant ones, we probably would have to go turn back
28:50
Speaker 1: on the draft. Now that's a controversial view. I'm reading
28:54
Speaker 1: the white papers that these like the Army War College
28:57
Speaker 1: is putting out, that the Center for New American Security
28:59
Speaker 1: is putting out over the last couple of years. What
29:02
Speaker 1: they're doing is they're looking at the casualty rates in
29:06
Speaker 1: the war between Ukraine and Russia, and they are seeing
29:09
Speaker 1: extremely high casualty rates. And there are two views about
29:13
Speaker 1: what those casualty rates mean. And one view is the
29:15
Speaker 1: casualty rates in Ukraine and Russia are just because like
29:19
Speaker 1: it's like culture and geography, that's how Ukrainians and Russians fight,
29:24
Speaker 1: you know, they're just it's an existential struggle to the death.
29:27
Speaker 1: So they're not being very careful in terms of exposing
29:31
Speaker 1: their soldiers, and particularly they're conscriptive soldiers to fire. That's
29:36
Speaker 1: one view, and if that's your view, then the casualty
29:40
Speaker 1: rates in Ukraine and Russia, the Ukraine Russia conflict don't
29:44
Speaker 1: really are not relevant for gaming out how we would
29:47
Speaker 1: fight ilan war in Iran, for instance. The other view,
29:51
Speaker 1: which is the view that experts at the Army War
29:53
Speaker 1: College and Center from New American Security have recently floated,
29:56
Speaker 1: is this is not just about culture and geography. That
30:01
Speaker 1: the high casualty rates are related to the use of drones,
30:04
Speaker 1: are related to the use of various communications and surveillance
30:08
Speaker 1: technologies that are basically all making it easier to strike
30:13
Speaker 1: military units that aren't even on the front lines. You know,
30:17
Speaker 1: you could try to have a war where you're limiting
30:20
Speaker 1: casualties and it might not be up to you, you know,
30:23
Speaker 1: if the enemy can kind of hit you with drones
30:26
Speaker 1: and so forth. If that's right, if that second interpretation
30:29
Speaker 1: is right, then we're going to need a draft because
30:31
Speaker 1: we actually have a pretty small army right now. The
30:34
Speaker 1: volunteer force is.
30:36
Speaker 2: Small, the Air Force men, it's recruiting targets for twenty
30:39
Speaker 2: twenty six ahead of the September thirtieth deadline. But is
30:44
Speaker 2: that unusual? Has recruiting been difficult?
30:47
Speaker 1: Recruitment has you know, is always a challenge to some extent.
30:53
Speaker 1: The easiest way to recruit people is to pay them more.
30:56
Speaker 1: That's obviously, you know, there tend to be budgetary obstacles
31:00
Speaker 1: to that. But the real reason why the kind of
31:03
Speaker 1: force in arms we have is quite small historically speaking,
31:07
Speaker 1: is because the kind of the new paradigm really since
31:15
Speaker 1: the nineties, late eighties nineties for military conflict is we're
31:20
Speaker 1: not going to use a lot of soldiers. We're going
31:23
Speaker 1: to rely on air power. We're going to lye on
31:26
Speaker 1: highly trained, you know, expert war fighters. We're not going
31:32
Speaker 1: to get into protracted battles with these enormous casualty rates
31:39
Speaker 1: where you're just kind of throwing soldiers into a gap
31:42
Speaker 1: and having them be shot at. Right. So the whole
31:44
Speaker 1: idea was we don't need a big army because we
31:47
Speaker 1: don't want to fight that kind of war anymore. What
31:51
Speaker 1: the high casualty rates in the Ukrainian Russian border suggest
31:55
Speaker 1: is you might not get to decide that, right. The
31:59
Speaker 1: idea of the kind of modern military planners is we
32:01
Speaker 1: have highly trained, professional units that actually go in and
32:06
Speaker 1: with a lot of air power and they get in
32:09
Speaker 1: and they get out. That is not what we're seeing
32:13
Speaker 1: in the Ukrainian Russian conflict. The Ukrainians try to do that,
32:17
Speaker 1: but they can't really because they quickly get exposed to drones, artillery.
32:24
Speaker 1: It's harder to kind of keep your own soldiers safe
32:28
Speaker 1: in any event. It's only an analogy to the Ukraine
32:31
Speaker 1: Russian conflict. But we've certainly designed our current military to
32:36
Speaker 1: be small and nimble, not to be capable of absorbing
32:39
Speaker 1: huge casualties.
32:41
Speaker 2: In a March eighth interview, the White House Press Secretary
32:44
Speaker 2: was asked what she would tell mothers who were worried
32:47
Speaker 2: about the draft returning. She said something to the effect
32:51
Speaker 2: of Trump doesn't remove any options from the table, but
32:54
Speaker 2: there are no current plans to reinstate the draft. But
32:58
Speaker 2: what would be the process if Trump decided to reinstate
33:02
Speaker 2: the draft.
33:03
Speaker 4: Well, so the.
33:05
Speaker 1: First thing is that Congress would have to vote to
33:09
Speaker 1: authorize induction authority. So right now the Military Selective Service
33:14
Speaker 1: Act exists. And to go back to where the interview began,
33:18
Speaker 1: there's now going to be automatic registration, so you know,
33:22
Speaker 1: millions of folks will be registered for the draft. That
33:25
Speaker 1: doesn't mean they can be drafted. Congress would have to
33:28
Speaker 1: vote to turn back on induction authority, which means the
33:33
Speaker 1: Department of Defense would set a monthly draft call, you know,
33:38
Speaker 1: the number of soldiers they want drafted in a given month,
33:43
Speaker 1: and then the Selective Service system, the bureaucracy would have
33:46
Speaker 1: to rapidly expand, and it would somehow have to get
33:52
Speaker 1: notice to everyone registered to either answer a series of
33:57
Speaker 1: questions online or more traditional, to go to a selective
34:02
Speaker 1: service office to be interviewed and examined. There needs to
34:06
Speaker 1: be some kind of interview, whether in person or online,
34:10
Speaker 1: in order to classify all these registered people. They're registered,
34:14
Speaker 1: but they're not classified. What classified means is are you
34:18
Speaker 1: available for military service or are you entitled to some
34:22
Speaker 1: kind of deferment as defined in the statute. Deferments might
34:25
Speaker 1: be you're enrolled in a program of higher education that's
34:29
Speaker 1: important for you know, the national interest. It could be
34:33
Speaker 1: that you are the sole provider for your family and
34:35
Speaker 1: you have young dependents. There's a host or it could
34:38
Speaker 1: be that you're a conscientious subjector or a minister. They
34:41
Speaker 1: are a host of statutorily provided for deferments, but we
34:44
Speaker 1: don't know who's entitled to what because we haven't classified
34:47
Speaker 1: people in sixty years. So the first thing that would
34:54
Speaker 1: need to happen is a very rapid effort to classify
34:59
Speaker 1: these millions of auto madically registered people. Once they're classified,
35:03
Speaker 1: you identify the population who is what's called one A,
35:06
Speaker 1: which means available for immediate induction. That means they're physically
35:10
Speaker 1: mentally fit and they're not entitled to some other deferment
35:13
Speaker 1: or exemption, and then you have to order them to
35:15
Speaker 1: report for induction into the armed forces. You could, with
35:21
Speaker 1: a lot of bureaucratic labor, maybe do all of that
35:26
Speaker 1: in a couple of months, but historically, what it takes
35:30
Speaker 1: is a real national mobilization. And what I mean by that,
35:33
Speaker 1: it's not enough just to have the bureaucrats hired and
35:37
Speaker 1: ready to go. You actually need the American people to
35:40
Speaker 1: be essentially putting pressure on their sons to show up.
35:46
Speaker 2: Certainly, there's not a national commitment right now anything, But
35:50
Speaker 2: thanks so much, Jeremy. That's Columbia Law School professor Jeremy Kessler,
35:55
Speaker 2: and that's it for this edition of The Bloomberg Law Show.
35:57
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36:00
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