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Accused 911 Mastermind Gets Deal to Avoid Death Penalty · Bloomberg Law

• 0:03
  Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
• 0:11
  Speaker 1: The man accused of being the mastermind of the September
• 0:15
  Speaker 1: eleventh attacks is getting a plea deal that will allow
• 0:18
  Speaker 1: him to avoid the death penalty. A dramatic and to many,
• 0:22
  Speaker 1: unwelcome development in the prosecution of the deadliest terrorist attack
• 0:27
  Speaker 1: on US soil that's dragged on for decades. The Pentagon
• 0:31
  Speaker 1: announced that Khalid Sheik Mohammed and two of his accomplices
• 0:35
  Speaker 1: will plead guilty to the murder of two nine hundred
• 0:38
  Speaker 1: and seventy six people in exchange for a life sentence.
• 0:42
  Speaker 1: Terry Strata, the head of the nine to eleven Families
• 0:46
  Speaker 1: United group, told DW News that the vast majority of
• 0:50
  Speaker 1: the families are angry and feel that justice was denied.
• 0:55
  Speaker 2: He will not stand trial and he will not face
• 0:58
  Speaker 2: a punishment by death, which is what was on the table.
• 1:02
  Speaker 2: So this is something that PSM and the others wanted.
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  Speaker 2: So it's a victory for them, and I don't feel
• 1:09
  Speaker 2: like we should ever give them a victory. This is
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  Speaker 2: a sign of a very weak leadership in our country
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  Speaker 2: to strike such a deal that, like I just said,
• 1:19
  Speaker 2: a vast majority of family members do not support, do
• 1:23
  Speaker 2: not want, and we do not want him to have
• 1:25
  Speaker 2: this victory.
• 1:27
  Speaker 1: This plea deal only affects three of the five alleged
• 1:30
  Speaker 1: nine to eleven conspirators being held at Guantanamo Bay. Joining
• 1:34
  Speaker 1: me is Matthew Waxman, a professor at Columbia Law School.
• 1:38
  Speaker 1: Why have the trials of these nine to eleven defendants
• 1:42
  Speaker 1: been delayed for decades?
• 1:44
  Speaker 3: So right from the start, I think the military commissions
• 1:48
  Speaker 3: that were set up to prosecute detainees at Guantanamo for
• 1:53
  Speaker 3: war crimes have been a failed policy. They were supposed
• 1:56
  Speaker 3: to be set up in order to provide with justice,
• 2:00
  Speaker 3: but they've delivered anything but that. And I think there
• 2:04
  Speaker 3: have been a number of problems that have slowed down
• 2:09
  Speaker 3: the prosecutions, and especially these that are subject to this
• 2:13
  Speaker 3: plea deal. When detainees were captured, whether on the battlefield
• 2:19
  Speaker 3: or elsewhere, those agencies that picked them up were not
• 2:23
  Speaker 3: preparing a case for trial. They weren't collecting evidence as
• 2:27
  Speaker 3: you would in order to prosecute a criminal trial. There
• 2:31
  Speaker 3: have been issues of evidence or confessions that have been
• 2:36
  Speaker 3: obtained allegedly by torture. There are legal challenges that have
• 2:43
  Speaker 3: been made some of which have gone all the way
• 2:46
  Speaker 3: up to the Supreme Court that have slowed down the process.
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  Speaker 3: And whenever you set up an entirely new court system,
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  Speaker 3: you have to basically develop all kinds of rules and
• 2:58
  Speaker 3: processes from scratch.
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  Speaker 1: Tell us about the alleged mastermind. Colleague, Sheik Muhammad.
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  Speaker 3: So Ksm and he's usually known by those initials, is
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  Speaker 3: accused of plotting the attacks of September eleventh, two thousand
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  Speaker 3: and one. He's one of thirty detainees who are still
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  Speaker 3: held at Guantanamo. And he was a US trained engineer
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  Speaker 3: who becomes a key leader of al Qaeda, and he
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  Speaker 3: and two of his accomplices have agreed to this plea deal.
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  Speaker 3: They've been charged, among other things, with murdering three thousand
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  Speaker 3: people in the September eleventh attacks, and the basic terms
• 3:42
  Speaker 3: of the plea deal are that they will plead guilty
• 3:45
  Speaker 3: to murder and other charges in return for a life
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  Speaker 3: sentence rather than the possibility of a death penalty.
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  Speaker 1: I can see what the defendants are getting out of
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  Speaker 1: this deal, but what is the government getting out of this?
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  Speaker 3: I think it's a good deal for the government, and
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  Speaker 3: here's why I'll be glad to see this case put
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  Speaker 3: to rest. I doubt this case would ever have been
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  Speaker 3: concluded if it proceeded, and actually carrying out a death
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  Speaker 3: sentence would have been a disaster, however much they may
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  Speaker 3: deserve it. So let me just say I'm conflicted on
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  Speaker 3: the death penalty because these are some of the worst
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  Speaker 3: people on earth who've committed unspeakable horrors. But I think
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  Speaker 3: actually carrying out a death sentence in this case would
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  Speaker 3: have been a disaster. I do feel for families of
• 4:40
  Speaker 3: the September eleventh victims who have had to endure the pain,
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  Speaker 3: especially of watching this unfold, and I know that they
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  Speaker 3: want finality, and many of them are very supportive of
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  Speaker 3: the death penalty. But even if it were carried out,
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  Speaker 3: and I'm very skeptical that the government would actually have
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  Speaker 3: been able to impose the death penalty, I think in
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  Speaker 3: this case it would make a martyr of these detainees.
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  Speaker 4: I think the.
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  Speaker 3: Story would understandably be that the United States has put
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  Speaker 3: to death somebody who's been subjected to torture. That would
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  Speaker 3: only add to the terrible stain of Guantanamo and the
• 5:22
  Speaker 3: CIA enhanced interrogation policy.
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  Speaker 1: You mentioned the families Terry Strata, the had of one
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  Speaker 1: group of families said, for me personally, I wanted to
• 5:31
  Speaker 1: see a trial and they took away the justice. I
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  Speaker 1: was expecting a trial and the punishment. And Brett Eagleson,
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  Speaker 1: president of nine to eleven Justice, said, we're deeply troubled
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  Speaker 1: by these plea deals. Should the government go ahead with
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  Speaker 1: a plea deal that so many of the family members disagree.
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  Speaker 3: With, well, this is a terrible dilemma for the government.
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  Speaker 3: And as I've said, I very much feel for the
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  Speaker 3: families who have had to endure not just the unspeakable
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  Speaker 3: pain of the deaths of their loved ones, but now
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  Speaker 3: twenty years of this process dragging on. I do hope
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  Speaker 3: that they feel some sense of justice. But there are
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  Speaker 3: other very powerful concerns and interests at stake here, and
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  Speaker 3: the US government has to do what's right taking into
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  Speaker 3: account all of these various factors. As I said, I
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  Speaker 3: don't think the death penalty ever would have been carried
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  Speaker 3: out in this case, and I think carrying out would
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  Speaker 3: have carried immense damage to the United States interests, especially abroad.
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  Speaker 1: Last September, ABC News reported that President Biden rejected a
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  Speaker 1: set of demands that would form the basis for plea
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  Speaker 1: negotiations offered by the five defendants, and that included avoiding
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  Speaker 1: solitary confinement. Why is the government not releasing the details
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  Speaker 1: of this might be because some of the details might
• 7:03
  Speaker 1: be objectionable.
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  Speaker 3: I suspect some of the details are still being worked out.
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  Speaker 3: I think some of them will need to be approved
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  Speaker 3: by the military commissions and through some other processes. But
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  Speaker 3: this is also one of the challenges of moving a
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  Speaker 3: case like this through a military justice process that hasn't
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  Speaker 3: really been tested. A lot of what's going on in
• 7:29
  Speaker 3: military commissions is new, and so we don't know for
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  Speaker 3: sure how some of these processes are going to play out.
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  Speaker 3: That's been one of the problems plaguing military commissions from
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  Speaker 3: the beginning, is that this is an untested process.
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  Speaker 1: And two other nine to eleven defendants are not participating
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  Speaker 1: in these agreements.
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  Speaker 3: That's right. For several years now, it's been reported that
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  Speaker 3: a deal like this has been in the work, some
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  Speaker 3: sort of a plea deal for a life sentence in
• 8:03
  Speaker 3: return for pleading guilty rather than the possibility of the
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  Speaker 3: death penalty. Originally, it was talked about as possibly involving
• 8:12
  Speaker 3: five of the direct perpetrators or leaders of the nine
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  Speaker 3: to eleven attack plot. I don't know why we're now
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  Speaker 3: talking about a deal involving only three, but over the
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  Speaker 3: course of the last few years, we've heard that this
• 8:30
  Speaker 3: deal is sort of on again, off again, and so
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  Speaker 3: there are any number of possible reasons why.
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  Speaker 1: Looking at the big picture here, the government is disappointing
• 8:40
  Speaker 1: most of the family members with this deal. It's only
• 8:44
  Speaker 1: for three out of the five conspirators. They're getting a
• 8:47
  Speaker 1: life sentence for the murder of three thousand people after
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  Speaker 1: twenty years. Doesn't this seem like a complete failure on
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  Speaker 1: the part of the government.
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  Speaker 3: So right now, there are thirty detainedes out of a
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  Speaker 3: total of roughly eight hundred who were brought to Guantanamo
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  Speaker 3: since it opened in two thousand and two. Most of
• 9:09
  Speaker 3: them have been transferred or released, some of them to
• 9:12
  Speaker 3: their home countries, some of them to third countries with
• 9:16
  Speaker 3: varying restrictions. Some of them were transferred for continued detention,
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  Speaker 3: for example, in their home countries. Of those who remain
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  Speaker 3: at Guantanamo, about half have also been approved for some
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  Speaker 3: sort of transfer, but we don't know whether that will
• 9:33
  Speaker 3: happen anytime soon. A few, though, will never be charged.
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  Speaker 3: They're going to be held indefinitely without any sort of prosecution.
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  Speaker 3: I think Guantanamo has been a failed policy. It was
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  Speaker 3: originally opened to be a place that would hold only
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  Speaker 3: the very worst of the worst, and it turned out
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  Speaker 3: that many detainees who were brought there should never have
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  Speaker 3: been either they were is like mistaken identity, or they
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  Speaker 3: were low level Al Qaeda or Caliban figures. It was
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  Speaker 3: also supposed to be an interrogation and intelligence center where
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  Speaker 3: the government would be able to obtain a vast amount
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  Speaker 3: of information about future Al Qaeda plots and networks, and
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  Speaker 3: I think it failed in both its detention mission and
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  Speaker 3: its intelligence mission. That doesn't mean that it was not
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  Speaker 3: valuable in some important ways. It kept many very, very
• 10:34
  Speaker 3: very dangerous people off the battlefield and prevented them from
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  Speaker 3: conducting further attacks. It also did provide some important intelligence information,
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  Speaker 3: never as much as I think was expected, but it
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  Speaker 3: did provide some very very important information. But from the beginning,
• 10:53
  Speaker 3: there was never really a good plan for what was
• 10:56
  Speaker 3: going to happen to the detainee's long term. There were
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  Speaker 3: insufficient processes put in place for figuring out which detainees
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  Speaker 3: should be detained there and which ones shouldn't. It is
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  Speaker 3: indelibly associated with this idea of a legal black hole
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  Speaker 3: and with torture, and I think many of those costs
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  Speaker 3: continue to accrue over time.
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  Speaker 1: The plea dealers are expected to take place as soon
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  Speaker 1: as next week, so perhaps we'll learn more then. Thanks
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  Speaker 1: so much for being on the show. That's Professor Matthew
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  Speaker 1: Waxman of Columbia Law School. Coming up next on the
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  Speaker 1: Bloomberg Law Show. The rogue Fifth Circuit is added again,
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  Speaker 1: finding an eight billion dollar a year FCC program to
• 11:43
  Speaker 1: boost phone and broadband services for poor and rural communities unconstitutional.
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  Speaker 1: I'm June Grosso and you're listening to Bloomberg. The ultra
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  Speaker 1: conservative Rogue Fifth Circuit has done it again, plotting a
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  Speaker 1: novel legal path in another attempt to limit federal agency power,
• 12:03
  Speaker 1: this time by limiting Congress's ability to delegate decision making
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  Speaker 1: to regulators. In a nine to seven on Bank decision,
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  Speaker 1: the Appellate Court ruled against an eight billion dollar a
• 12:15
  Speaker 1: year FCC program intended to boost phone and broadband service
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  Speaker 1: for poor and rural communities, finding that it's an unconstitutional
• 12:25
  Speaker 1: delegation of Congress's taxing authority. The decision is contrary to
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  Speaker 1: decisions by three other circuits, making the fifth circuit once
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  Speaker 1: again an outlier. Joining me is John Bergmeier, legal director
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  Speaker 1: at Public Knowledge. So at the center of this case
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  Speaker 1: is the FCC's Universal Service Fund. Tell us about that.
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  Speaker 4: Sure about the Universal program which has been in place
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  Speaker 4: really for decades now, which traditionally was seen primarily as
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  Speaker 4: a telephone program for saying that everyone has access to
• 13:01
  Speaker 4: telephone service, but increasingly is seeing as a program to
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  Speaker 4: ensure universal access to broadband. And what it means is
• 13:10
  Speaker 4: that telecommunications companies, like telephone companies, traditionally are assessed a
• 13:15
  Speaker 4: charge that they have to pay. They do tend to
• 13:18
  Speaker 4: sort of put it on consumers' bills and kind of
• 13:21
  Speaker 4: make people think it's like a tax on consumers directly,
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  Speaker 4: but it's not. If there's a charge that is on
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  Speaker 4: the telecommunications companies themselves, and then the money that they
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  Speaker 4: pay goes into a fund, and then the fund is
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  Speaker 4: used to subsidize broadband and telephone service to areas where
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  Speaker 4: it might not be economical, so rural areas where it's
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  Speaker 4: hard to make a business case to invest might help
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  Speaker 4: out there. It also helps low income people so there's
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  Speaker 4: something called the Lifeline and link up programs that make
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  Speaker 4: communications services more affordable, and it's also used to help
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  Speaker 4: provide broadband to anchor institutions like schools and libraries. So
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  Speaker 4: it's really part of making sure that the country as
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  Speaker 4: a whole and everyone in it kind of regardless of
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  Speaker 4: where you live, has access to telecommunication because it's one
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  Speaker 4: of the things that ties the country together, something that
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  Speaker 4: is really seen as benefiting not just the people who
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  Speaker 4: you know are getting access to communication services that they
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  Speaker 4: otherwise might have access to, but it really helps the
• 14:22
  Speaker 4: nation as a whole. I mean, just like it's good
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  Speaker 4: that you can send mail to rural Alaska with a
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  Speaker 4: stamp and you can communicate with them. That's like a
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  Speaker 4: benefit to people, even who live in cities. It's seen
• 14:33
  Speaker 4: as sort of like a benefit for everyone.
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  Speaker 1: This was passed in nineteen ninety six, and as you say,
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  Speaker 1: it's been ongoing. Why are there challenges to it now?
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  Speaker 4: Well, there is an activist group called Consumers Research that
• 14:46
  Speaker 4: has been filing lawsuit after lawsuit attempting to challenge this,
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  Speaker 4: and they've lost in every court really up until now,
• 14:54
  Speaker 4: and they even lost in the Good Circuit until now
• 14:56
  Speaker 4: they've lost in the DC Circuit at leave, the Sixth Circuit,
• 14:59
  Speaker 4: the eleven Circuit, so they sort of had like a
• 15:02
  Speaker 4: spray and pray philosophy of litigations and this time it
• 15:06
  Speaker 4: won out. And as to why now, I would expect
• 15:09
  Speaker 4: because they see that with the shift in the makeup
• 15:11
  Speaker 4: of the judiciary and increasingly, you know, a lot of
• 15:15
  Speaker 4: Trump appointed judges, increasingly conservative judges who are willing to
• 15:19
  Speaker 4: just all of a sudden find programs and policies that
• 15:22
  Speaker 4: have been in place and supported on a bipartisan basis,
• 15:25
  Speaker 4: as well as by both industry and consumer groups like
• 15:28
  Speaker 4: my own. They felt like they'd have a chance of success,
• 15:32
  Speaker 4: and at least this Fifth Circuit ruling shows that they
• 15:35
  Speaker 4: were right. They did succeed. However, I do expect its
• 15:38
  Speaker 4: going to go to the Supreme Court because so many
• 15:41
  Speaker 4: other appellate courts have ruled otherwise.
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  Speaker 1: Tell us about the arguments pro and con that the
• 15:47
  Speaker 1: Fifth Circuit considered in the case.
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  Speaker 4: The way the universal service works is, you know, admittedly,
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  Speaker 4: like it's a little complicated to understand that first, but
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  Speaker 4: basically Congress has told the SCC to ensure universal service.
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  Speaker 4: So that's one part of Their argument is that you
• 16:04
  Speaker 4: can't do that, like Congress has to spell out all
• 16:08
  Speaker 4: of the details ahead of time in statute. They can't
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  Speaker 4: just give the FEC a charge such as, you know,
• 16:14
  Speaker 4: ensure universal communications service to all Americans. So the first
• 16:18
  Speaker 4: argument that they're making is a delegation challenge. Then the
• 16:22
  Speaker 4: law of the land, which has been in place for
• 16:25
  Speaker 4: a long time, is that, you know, Congress can't delegate
• 16:28
  Speaker 4: this like actual core legislative functions. You know, Congress can't
• 16:31
  Speaker 4: just say we're going to create an agency and the
• 16:33
  Speaker 4: agency is going to pass all of the laws. But
• 16:36
  Speaker 4: Congress can delegate functions to agencies as long as they
• 16:41
  Speaker 4: give them what it's called an intelligible principle. And here
• 16:44
  Speaker 4: the intelligible principle is it's like, okay, SCC, you can't
• 16:47
  Speaker 4: just do whatever you want. You just have to do
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  Speaker 4: things that are, in your judgment, designed to ensure universal
• 16:53
  Speaker 4: access to communication services. And the reason you want an
• 16:56
  Speaker 4: agency to do this instead of Congress is because it's
• 16:58
  Speaker 4: a very fast moving landscape in our country. We've gone
• 17:01
  Speaker 4: from telegraph the telephone to broadbands. We have you know,
• 17:05
  Speaker 4: wireline phones and wireless phones, and it's like a very
• 17:07
  Speaker 4: shifting landscape, and we see the speed at which Congress
• 17:11
  Speaker 4: operates and the general level of technological expertise that your
• 17:15
  Speaker 4: cytical Congress might have. It's just not practical to have
• 17:20
  Speaker 4: them just decide exactly how.
• 17:22
  Speaker 3: The Universal Service programs should function.
• 17:25
  Speaker 4: So they delegate it to the SCC. And as every
• 17:29
  Speaker 4: court other than this recent court Grouwing has found is yes,
• 17:33
  Speaker 4: that's an intelligible principle. That's fine. That's not an unconstitutional
• 17:37
  Speaker 4: delegation of legislative authority to an agency. It's just a
• 17:42
  Speaker 4: delegation to like fill in the blanks. Congress made the
• 17:45
  Speaker 4: policy decision and SEC you go, carried out. So that's
• 17:49
  Speaker 4: the first argument they made. And then the second argument
• 17:52
  Speaker 4: they made is that this entity that the SEC works
• 17:56
  Speaker 4: with to decide exactly how much telecommunications companies have to
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  Speaker 4: pay into the fund. It's called USAC, the Universal Service
• 18:06
  Speaker 4: Administrative Company, and it sort of does the accounting for
• 18:10
  Speaker 4: the SCC, like it keeps track of revenues and it
• 18:13
  Speaker 4: figures out how much has to be paid by who.
• 18:16
  Speaker 4: This company, by the way, the nonprofit, it's a federally
• 18:19
  Speaker 4: chartered nonprofit. It doesn't have any real legal power. All
• 18:24
  Speaker 4: it can do is like accounting, what we'd call ministerial work.
• 18:28
  Speaker 4: And then it just proposes things to the FCC and
• 18:30
  Speaker 4: it's up to the SBC to look at the proposals
• 18:33
  Speaker 4: and then smount of public comments, just like it does
• 18:37
  Speaker 4: with other any FCC rulemaking, and if it agrees, then
• 18:41
  Speaker 4: that becomes the law. So it's still the SEC that
• 18:44
  Speaker 4: ultimately is in charge of the regulations. Now, the plaintiffs
• 18:49
  Speaker 4: in this case, Consumer Research and the Fifth Circuit, they
• 18:52
  Speaker 4: make a lot They say, oh, this is just like
• 18:53
  Speaker 4: a formality because the SEC never rejects the USAC proposals. Well,
• 18:58
  Speaker 4: there's a really good reason why the SEC doesn't reject
• 19:01
  Speaker 4: the USAC proposals. It's that the SEC basically controls USAC
• 19:04
  Speaker 4: to begin with. The board members of this nonprofit corporation
• 19:09
  Speaker 4: are appointed by the chair of the SCC. So you
• 19:12
  Speaker 4: wouldn't really expect that a nonprofit company whose board members
• 19:17
  Speaker 4: are appointed by the SCC, who have to follow SEC
• 19:21
  Speaker 4: rules and all they do is basically accounting. They don't
• 19:24
  Speaker 4: make policy choices, they don't interpret the law, they don't
• 19:27
  Speaker 4: advocate for changes in the law. They just do accounting.
• 19:31
  Speaker 4: So why would you expect their accounting work to be
• 19:34
  Speaker 4: somehow rejected by the SCC. But this was used as
• 19:37
  Speaker 4: a pretext by the plaintiffs, and I would argue the
• 19:40
  Speaker 4: Fifth Circuit to say, oh, you know, the SCC, so
• 19:44
  Speaker 4: this is a second argument that's in the case has
• 19:46
  Speaker 4: delegated a government function to a private entity. So, in
• 19:51
  Speaker 4: addition to the principle that Congress can't delegate its basic
• 19:55
  Speaker 4: legislative functions to agencies, governments themselves can't outsource core government
• 20:02
  Speaker 4: functions to private entities. However, governments always work with private
• 20:08
  Speaker 4: companies for these sorts of ministerial type, non policy making,
• 20:14
  Speaker 4: no legal authority kinds of work. So what the Fifth
• 20:17
  Speaker 4: Circuit held was, even though the Universal Service has been
• 20:21
  Speaker 4: found to be not an unconstitutional delegation of legislative authority
• 20:26
  Speaker 4: in the past, they basically said, when you take these
• 20:28
  Speaker 4: two things together combined, they become unconstitutional. And as the
• 20:33
  Speaker 4: defense from the case point out, this is completely breaking
• 20:36
  Speaker 4: new ground. It is ignoring Supreme Court President, it's ignoring
• 20:40
  Speaker 4: what other circuits have said, and it really gives the
• 20:42
  Speaker 4: federal government and agencies effectively zero guidance as to what
• 20:47
  Speaker 4: they can do going forward.
• 20:49
  Speaker 1: What do they expect. So in this case, Congress passed
• 20:52
  Speaker 1: the act and to all the FGC to enforce the Act,
• 20:56
  Speaker 1: what do they expect. Do they expect Congress to specifically
• 21:00
  Speaker 1: in legislation say exactly what has to be done which
• 21:05
  Speaker 1: will never happen.
• 21:06
  Speaker 4: It's not entirely clear because they've concocted this two part
• 21:11
  Speaker 4: theory where it's like delegation to the FCC and then
• 21:15
  Speaker 4: delegation from the SEC to a private company or a
• 21:20
  Speaker 4: private nonprofit rather. So, maybe you would say, under the
• 21:24
  Speaker 4: Fifth Circuits view, if the SCC just sort of internally
• 21:27
  Speaker 4: did all of the work that USAC currently does, then
• 21:31
  Speaker 4: that would be fine. Or maybe they just think that
• 21:34
  Speaker 4: the delegation of what the Fifth Circuit has, incorrectly, by
• 21:38
  Speaker 4: the way, called a taxing authority to the SEC like
• 21:41
  Speaker 4: that is still unconstitutional. I think the problem is with
• 21:44
  Speaker 4: the Fifth Circuit in particular, and this is not just
• 21:47
  Speaker 4: my opinion. You see it in how many times the
• 21:49
  Speaker 4: Fifth Circuit has been reversed by a very conservative Supreme Court. So,
• 21:53
  Speaker 4: I mean, when the Fifth Circuit is constantly being reversed
• 21:56
  Speaker 4: by what is known as the most conservative Supreme Court
• 21:58
  Speaker 4: in recent history, you know, they're kind of like going
• 22:01
  Speaker 4: out on a limb and I think that they would
• 22:03
  Speaker 4: just move the goalpost no matter what is done. I
• 22:06
  Speaker 4: would suppose that they might try to find a way
• 22:08
  Speaker 4: to find it unconstitutional, but they're sort of taking the
• 22:11
  Speaker 4: document at its word. Then yeah, maybe you could fix
• 22:14
  Speaker 4: one or two of the problems and have it proceed.
• 22:18
  Speaker 4: And the short term, what they did was they just
• 22:20
  Speaker 4: sort of remanded the issue back to the FCC. So
• 22:24
  Speaker 4: the FCC is going to have to consider how to
• 22:26
  Speaker 4: proceed bull skin terms of how can they possibly comply
• 22:30
  Speaker 4: with the so called guidance of the Fifth Circuit. But
• 22:33
  Speaker 4: what's really going to happen is the SEC is certainly
• 22:35
  Speaker 4: going to appeal this to the Supreme Court. And like
• 22:38
  Speaker 4: I said, the fact that other circuit courts have very
• 22:41
  Speaker 4: recently ruled the exact opposite means that very likely the
• 22:44
  Speaker 4: Supreme Court is going to resolve this, and I would
• 22:48
  Speaker 4: imagine that universal Service, Well, there might be like some
• 22:51
  Speaker 4: sort of ruling that puts the Fifth Circuit ruling on
• 22:54
  Speaker 4: hold temporarily while the appeal continues.
• 22:56
  Speaker 1: Yeah, the FCC has said that it intends to pursue
• 23:00
  Speaker 1: all available avenues for review, so that leads them directly
• 23:05
  Speaker 1: to the Supreme Court. And this was an opinion by
• 23:08
  Speaker 1: the full Fifth Circuit to the original ruling by a
• 23:13
  Speaker 1: three judge panel uphold the legality of the usf or not.
• 23:19
  Speaker 4: Yeah, So, a three judge panel of the Fifth Circuit
• 23:22
  Speaker 4: ruled in line with the other courts and said that
• 23:26
  Speaker 4: the program is perfectly constitutional, and then the Court as
• 23:31
  Speaker 4: a whole overruled that three judge panel.
• 23:34
  Speaker 1: Coming up next on the Bloomberg Law Show, I'll continue
• 23:36
  Speaker 1: this conversation with John Bergmeier, legal director at Public Knowledge.
• 23:41
  Speaker 1: We'll talk more about the Fifth Circuit and it's seeming
• 23:45
  Speaker 1: attempt to dismantle the administrative state all by itself. You're
• 23:50
  Speaker 1: listening to Bloomberg. The Fifth Circuit Court of Appeals has
• 23:55
  Speaker 1: limited federal agency power again, this time by limiting Congress's
• 24:00
  Speaker 1: ability to delegate decision making to regulators. The appellate court
• 24:05
  Speaker 1: found that the FCC's Universal Service Fund is an unconstitutional
• 24:11
  Speaker 1: delegation of Congress's taxing authority. The ruling is novel and
• 24:15
  Speaker 1: is contrary to the decisions of other circuits, establishing a
• 24:19
  Speaker 1: circuit split with the six and eleven Circuits, which could
• 24:23
  Speaker 1: catch the attention of the Supreme Court. I've been talking
• 24:27
  Speaker 1: to John Bergmeier, legal director at Public Knowledge. Judge Ohman,
• 24:31
  Speaker 1: who wrote the majority opinions, described the fee, which is
• 24:35
  Speaker 1: collected from the telecommunication companies but is often passed on
• 24:39
  Speaker 1: to consumer's phone bills, according to the court, as a
• 24:42
  Speaker 1: multi billion dollar tax. Nobody voted for what's your response to.
• 24:46
  Speaker 4: That, Well, Congress decided that the Universal Service program should
• 24:50
  Speaker 4: exist and gave the SEC guidance. And the last I checked,
• 24:53
  Speaker 4: Congress is voted in by the American people, So I
• 24:58
  Speaker 4: don't really know where that is coming from. And furthermore,
• 25:01
  Speaker 4: it's just not accurate to call it attacks. Most courts before,
• 25:04
  Speaker 4: including the Fifth Circuit, have categorized it as a fee.
• 25:08
  Speaker 4: That seems like a nuanced distinction. But you know, at
• 25:11
  Speaker 4: tax is sort of like letted down the public. Everyone
• 25:13
  Speaker 4: has to pay no matter what. Well, a fee is
• 25:16
  Speaker 4: something you know, maybe you pay to enter a national park.
• 25:18
  Speaker 4: That's a fee. And the Universal Service Assessment against telecommunications
• 25:23
  Speaker 4: companies has long been seen as a fee because it's
• 25:26
  Speaker 4: not something that like all companies have to pay into. Rather,
• 25:30
  Speaker 4: it's like a cost of doing business if you want
• 25:32
  Speaker 4: to be part of the telecommunications network, and you get
• 25:35
  Speaker 4: benefits from it too, because the communications network is regulated.
• 25:39
  Speaker 4: The telephone network, for example, has been regulated by the SPC.
• 25:43
  Speaker 4: That's why you can be on a Verizon cell phone
• 25:45
  Speaker 4: and call someone who's an AT and T customer. You know,
• 25:48
  Speaker 4: it's not just a private proprietary network. But we have
• 25:51
  Speaker 4: like policies and laws that talk about how these different
• 25:53
  Speaker 4: networks interconnect with each other. And it's long been seen
• 25:56
  Speaker 4: if you want to participate in the in the communications
• 25:59
  Speaker 4: network and get the benefits of SEC regulation phone numbers,
• 26:04
  Speaker 4: you know, phone numbers are administered by the government, and
• 26:07
  Speaker 4: really even to look at the broadband space, you know,
• 26:09
  Speaker 4: the system of it, addresses and things like that, that's
• 26:12
  Speaker 4: fundamentally you know, that comes from federal policy. So it's
• 26:16
  Speaker 4: been long seen as a fee. It's like, if you
• 26:18
  Speaker 4: want to be a telecommunications network, you pay into this.
• 26:21
  Speaker 4: It's a cost of doing business, but not necessarily a tax.
• 26:25
  Speaker 4: And the Fifth Circuit has precedent which says exactly that,
• 26:27
  Speaker 4: as does the Supreme Court, you know, and whether or
• 26:30
  Speaker 4: not you would agree with that, the Fifth Circuit is
• 26:32
  Speaker 4: supposed to follow with the Supreme Court, not just sort
• 26:35
  Speaker 4: of chart its own path. But they decided in this
• 26:37
  Speaker 4: case that they get to call it a tax. In part,
• 26:41
  Speaker 4: this is because the SPC long ago allowed communications companies
• 26:45
  Speaker 4: to sort of present it as though it were a
• 26:48
  Speaker 4: kind of sales tax on consumers bills, which I think
• 26:51
  Speaker 4: has always been a little bit misleading because it's not
• 26:54
  Speaker 4: the same as a sales tax. It's assessed on users.
• 26:57
  Speaker 4: It's more like a regulatory cost of doing business. That's like,
• 27:02
  Speaker 4: if you're a restaurant, you have to, you know, pay
• 27:05
  Speaker 4: to comply with health department codes, and those costs will
• 27:09
  Speaker 4: get passed along to the consumer. So, you know, I
• 27:11
  Speaker 4: think in part, the sort of semi misleading way that
• 27:16
  Speaker 4: universal service fees have been presented to consumers, you know,
• 27:20
  Speaker 4: gives some rhetorical weight to this notion that it somehow
• 27:25
  Speaker 4: attacks on the American people. But when you dig into
• 27:29
  Speaker 4: the details, you see that's not even true.
• 27:32
  Speaker 1: So, as you mentioned, the Fifth Circuit is not only conservative,
• 27:37
  Speaker 1: but it's an outlier. It pushes novel theories. Has it
• 27:41
  Speaker 1: been particularly aggressive in the area of administrative law and
• 27:46
  Speaker 1: sort of the so called dismantling of the administrative state.
• 27:51
  Speaker 4: I think it absolutely has been. I'd have to say
• 27:54
  Speaker 4: the Supreme Court itself has been pretty aggressive on that front,
• 27:58
  Speaker 4: but particularly in the area of telekunications and Internet policy
• 28:02
  Speaker 4: and areas like that. The Fifth Circuit has been a
• 28:06
  Speaker 4: true outlier. So, for example, there was a case, the
• 28:10
  Speaker 4: Mercy case, that went up to the Supreme Court about
• 28:13
  Speaker 4: whether or not the Biden administration was able to sort
• 28:16
  Speaker 4: of communicate with the social media companies at all, and
• 28:20
  Speaker 4: the Fifth Circuit, you know, basically had a broad ruling
• 28:22
  Speaker 4: forbidding any contact between the administration and tech companies about
• 28:27
  Speaker 4: content moderation issues, and that was reversed by the Supreme Court.
• 28:31
  Speaker 4: And really unusually, there's a footnote in the opinion that
• 28:35
  Speaker 4: basically just takes note of the fact that some of
• 28:37
  Speaker 4: the so called facts of the case that the Fifth
• 28:40
  Speaker 4: Circuit accepted, it's like, are not remotely true. So it's
• 28:43
  Speaker 4: not just so they got the law wrong. They deliberately
• 28:46
  Speaker 4: distorted or accepted obvious, blatant distortions of the factual records.
• 28:52
  Speaker 4: And also the Fifth Circuit upheld Texas's social media censorship law,
• 28:58
  Speaker 4: which would have taken away the content moderation rights of
• 29:02
  Speaker 4: private companies. Well, the Supreme Court recently said no Facebook
• 29:05
  Speaker 4: and Twitter when it comes to moderating content and deciding
• 29:09
  Speaker 4: what people see and what users are allowed to use
• 29:11
  Speaker 4: these private platforms have the same First Amendment rights as
• 29:14
  Speaker 4: other private companies like newspapers. So I think those are
• 29:16
  Speaker 4: two recent areas where I know they've been reversed, But
• 29:19
  Speaker 4: there's been a ton in areas that I don't necessarily
• 29:22
  Speaker 4: work on, with access to medications and just trying to
• 29:26
  Speaker 4: overrule the sec or constrain the administration in terms of
• 29:31
  Speaker 4: immigration policy. So it's been I would just have to
• 29:34
  Speaker 4: characterize it as a conservative activist court that is attempting
• 29:38
  Speaker 4: to impose their political views on the American people by
• 29:43
  Speaker 4: just ignoring decades of a Supreme Court president.
• 29:46
  Speaker 1: It is out there, and it has been reversed more
• 29:50
  Speaker 1: times than it's been upheld by the Supreme Court, but
• 29:52
  Speaker 1: it has been upheld in certain cases by the Supreme Court. Yeah,
• 29:56
  Speaker 1: So are you confident that if this case went to
• 30:00
  Speaker 1: the Supreme Court that they would reverse the Fifth Circuit
• 30:03
  Speaker 1: or are you unsure?
• 30:05
  Speaker 4: I think this one. You can never be sure about anything,
• 30:08
  Speaker 4: you know, especially today with the state of the judiciary.
• 30:12
  Speaker 4: But I think there's a very good chance that they
• 30:13
  Speaker 4: will be reversed on this. In part when you just
• 30:16
  Speaker 4: look up the makeup of the people who disagree with
• 30:20
  Speaker 4: what the Fifth Circuit has done. So in some of
• 30:23
  Speaker 4: the administrative law cases, like the overturning of the Chevron doctrine,
• 30:27
  Speaker 4: you basically had industry. Industry have long wanted to get
• 30:30
  Speaker 4: rid of Chevron. A lot of people in the conservative
• 30:32
  Speaker 4: legal movement, the federal society types, have long wanted to
• 30:35
  Speaker 4: get rid of Chevron. So the Fifth Circuit, you know,
• 30:38
  Speaker 4: in terms of you know, hostility to doctrines like that,
• 30:41
  Speaker 4: was maybe not as far ahead of the Supreme Court
• 30:44
  Speaker 4: as they are here. But here this is a program
• 30:47
  Speaker 4: that has been supported by industry, by the broadband industry,
• 30:50
  Speaker 4: at and T, you know, the major cable companies, comcasts.
• 30:53
  Speaker 4: They all think that everyone has ideas of how the
• 30:57
  Speaker 4: program should be fixed, of course, and there's disagreements about
• 31:01
  Speaker 4: the exact details of how the program works, but the
• 31:04
  Speaker 4: basic idea that there should be a universal service program
• 31:08
  Speaker 4: that we should try to connect all Americans to the
• 31:11
  Speaker 4: communications network. That is a policy that is supported by
• 31:14
  Speaker 4: consumer advocates, industry, left and right. And the only outliers
• 31:18
  Speaker 4: are these radical anti tax, anti government activists who unfortunately
• 31:23
  Speaker 4: have found a willing year in some of the more
• 31:26
  Speaker 4: extreme members of the Fifth Circuit who unfortunately seem to
• 31:29
  Speaker 4: make up a majority of it these days.
• 31:31
  Speaker 1: Will you tell me a little bit about your organization.
• 31:35
  Speaker 4: Sure, Public Knowledge is a Washington, DC based consumer rights organization.
• 31:41
  Speaker 4: We deal a lot with communications policy, copyright, internet, telecommunications
• 31:47
  Speaker 4: platform regulation, things like that, and we have been active
• 31:53
  Speaker 4: in these cases. So we have filed amicus briefs in
• 31:58
  Speaker 4: various iterations of this case. Says that have been brought
• 32:01
  Speaker 4: repeatedly by this organizational kind of explain like the history
• 32:07
  Speaker 4: and purpose of universal Service and one of the things
• 32:12
  Speaker 4: that we fight for is ensuring that all Americans have
• 32:14
  Speaker 4: access to affordable and reliable communication services, no matter who
• 32:19
  Speaker 4: they are and no matter where they live.
• 32:21
  Speaker 1: Thanks so much for coming on the show. That's John Bergmeyer,
• 32:25
  Speaker 1: Legal Directorate, Public Knowledge and that's it for this edition
• 32:28
  Speaker 1: of the Bloomberg Law Podcast. Remember you can always get
• 32:31
  Speaker 1: the latest legal news by subscribing and listening to the
• 32:34
  Speaker 1: show on Apple Podcasts, Spotify, and at Bloomberg dot com,
• 32:38
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• 32:42
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