Latest / Bloomberg Law / Weekend Law: Music Piracy, Drug Boats, Asylum & Texas Maps

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Weekend Law: Music Piracy, Drug Boats, Asylum & Texas Maps · Bloomberg Law

0:03
Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
0:08
Speaker 2: The music industry faced off against internet providers at the
0:13
Speaker 2: Supreme Court this week over a one billion dollar jury
0:17
Speaker 2: verdict against Cox Communications for not shutting down the accounts
0:21
Speaker 2: of customers who'd pirated more than ten thousand copyrighted songs
0:26
Speaker 2: by artists like Beyonce and Justin Timberlake. The lawyers painted
0:30
Speaker 2: very different bleak pictures of the consequences of a decision
0:35
Speaker 2: against their clients. Joshua Rosenkrantz represents the internet provider Cox,
0:40
Speaker 2: and Paul Clement represents the record companies.
0:44
Speaker 3: There is no short fireway for an ISP to avoid liability,
0:50
Speaker 3: and the only way it can is to cut off
0:53
Speaker 3: the Internet, not just for the accused infringer, but for
0:57
Speaker 3: anyone else who happens to use the same connection. That
1:02
Speaker 3: could be entire towns, universities, or hospitals.
1:06
Speaker 4: If Cox is right on the law, then Cox could
1:09
Speaker 4: take tens of thousands of copyright notices and throw them
1:12
Speaker 4: in the trash, and they could have its employees, say
1:15
Speaker 4: f the DMCA.
1:16
Speaker 2: The issue is whether internet providers should be held responsible
1:20
Speaker 2: for contributing to copyright infringement when they know their customers
1:24
Speaker 2: are pirating music but don't terminate their Internet access. Several
1:30
Speaker 2: justices appeared skeptical that Cox had done enough to stop piracy,
1:35
Speaker 2: and questioned whether a favorable ruling would allow Internet service
1:39
Speaker 2: providers to ignore clear copyright infringement by their users. Here
1:44
Speaker 2: are Justices Sonya Sotomayor and Amy Cony Barrett.
1:48
Speaker 5: You did nothing and in fact, counselor your clients sort
1:54
Speaker 5: of lais a fair attitude towards the respondents's probably what
2:00
Speaker 5: got the jury upset?
2:02
Speaker 6: What incentive would you have to do anything? If you
2:05
Speaker 6: wont if you if you win and mayre knowledge isn't enough,
2:09
Speaker 6: Why would you bother to send out any notices in
2:11
Speaker 6: the future.
2:12
Speaker 2: But Justice Samuel Alito expressed concerns about the effect on
2:17
Speaker 2: large institutions like universities or hospitals. If an Internet service
2:22
Speaker 2: provider is forced to cut off infringers.
2:25
Speaker 7: What is an ISP supposed to do with a university
2:29
Speaker 7: account that has let's say, seventy thousand users? What is
2:33
Speaker 7: the university supposed to do?
2:35
Speaker 2: My guest is intellectual property litigator Terrence Ross, a partner
2:39
Speaker 2: at Catan Euchin Rosenmuan Terry. Will you explain the issue
2:43
Speaker 2: here and the process of policing music piracy.
2:48
Speaker 8: The issue in the case involved process by which recording
2:52
Speaker 8: companies track online sharing of musical compositions that they own.
2:59
Speaker 8: The cop write in the process allows them to identify
3:04
Speaker 8: the IP address and the ISP that is providing the
3:09
Speaker 8: service to that IP address, and so the music company's
3:13
Speaker 8: recording companies regularly on a daily basis, in fact, send
3:18
Speaker 8: notices of infringement to the ISPs that are providing the
3:24
Speaker 8: Internet service to these infringers. And there are days in
3:27
Speaker 8: which they're sending out ten thousand notices to each individual
3:31
Speaker 8: ISP service, and the recording companies finally became fed up
3:36
Speaker 8: that the ISPs were not doing something. They wanted the
3:39
Speaker 8: ISPs to cut off service to these identified infringers, and
3:44
Speaker 8: the ISPs dragged their heels doing anything taking any real
3:49
Speaker 8: concrete action to stop it. And so the recording companies
3:53
Speaker 8: finally sued cos Cable Company, which is one of the
3:58
Speaker 8: largest ISPs in the nation, alleging that they had engaged
4:03
Speaker 8: in contributory copyright infringement.
4:06
Speaker 2: In its papers, COX had argued that Grandma will be
4:09
Speaker 2: thrown off the Internet because Junior visited and illegally downloaded songs.
4:15
Speaker 2: Did some of the justices seem to pick up on
4:18
Speaker 2: that concern.
4:19
Speaker 8: There was only one justice who seemed to give some
4:22
Speaker 8: credence that, and that was Justice the Lead of He
4:25
Speaker 8: was the only justice who really seemed to buy into
4:29
Speaker 8: the position by Cox that it was hesitant to kick
4:33
Speaker 8: people off because of and then you can fill in
4:36
Speaker 8: the blank as to what the reason is their grandmother,
4:38
Speaker 8: their university, their hospital. In fact, the hypothetically posed at
4:42
Speaker 8: oral argument in the Supreme Court was what happens when
4:45
Speaker 8: all you can do is identify that the IP address
4:49
Speaker 8: belongs to university? Or you going to shut down the
4:51
Speaker 8: entire university? One of those odd hypotheticals that takes the
4:55
Speaker 8: case the extreme. The facts are actually contrast to that,
5:00
Speaker 8: and indeed none of the other justices seemed to buy
5:02
Speaker 8: into that argument. The reality is that over the period
5:06
Speaker 8: of time and issue, Cox had received one hundred and
5:09
Speaker 8: sixty three thousand notices of infringement and had kicked off
5:15
Speaker 8: of its service only thirty two customers. The policy of
5:21
Speaker 8: compliance used by Cox was described in some detail, and
5:26
Speaker 8: it was sub law. They fare to use the word
5:30
Speaker 8: that one of the justices used to describe it they
5:33
Speaker 8: had originally started off to say, well, if we get
5:35
Speaker 8: three notices about a particular user, we're going to tell
5:39
Speaker 8: them we're cutting off their service. That rose gradually over
5:42
Speaker 8: time from being a three strikes you're out policy to
5:45
Speaker 8: being a thirteen strikes and you're aut policy. And the
5:48
Speaker 8: thirteen strikes reset every six months, so if you didn't
5:52
Speaker 8: get to thirteen within a six month period, you went
5:55
Speaker 8: back to zero, or if you got kicked off after
5:57
Speaker 8: six months off, you got put back on. Also cap
6:00
Speaker 8: the number notices that they were accepting from recording companies
6:05
Speaker 8: at three hundred a day. And then probably the worst
6:08
Speaker 8: fact of all in which got brought up at the
6:11
Speaker 8: Supreme Court, if you could believe it, was the head
6:14
Speaker 8: of Copyright Compliance at Cox sent out an email to
6:18
Speaker 8: the people in charge of enforcing copyright policy in which
6:23
Speaker 8: he said, f the DMCA. Now, the DMCA refers to
6:28
Speaker 8: the Digital Millennium Copyright Act, which is one of the
6:32
Speaker 8: key statutes that shoe here and which requires ISPs to
6:37
Speaker 8: set up a policing mechanism against copyright infringement if they
6:42
Speaker 8: want to claim the safe harbor that is embedded in
6:46
Speaker 8: the Digital Millennium Copyright Act In response to that, one
6:49
Speaker 8: of the minions for the head of compliance wrote back saying, well,
6:52
Speaker 8: we're helping law breaking customers. And there were dozens of
6:56
Speaker 8: emails like this amongst the compliance group of cocks that
6:59
Speaker 8: just manifested a complete disdain for copyright laws, which obviously
7:05
Speaker 8: impacted the jury because the jury below had awarded a
7:08
Speaker 8: billion dollars in damages against cop and in the Supreme
7:11
Speaker 8: Court argument, it was clear that outside of Justice Alito,
7:15
Speaker 8: none of the eight other justices were buying what Cox
7:19
Speaker 8: was trying to claim was their reason for not cutting
7:22
Speaker 8: off people that you'd kick Grandma's off of the Internet.
7:26
Speaker 8: The other eight justices just didn't buy it, and it
7:28
Speaker 8: was a loser argument for Cox.
7:30
Speaker 2: So then, can you tell where most of the justices
7:33
Speaker 2: do stand?
7:35
Speaker 8: That's always a tough question. In this case. I think
7:37
Speaker 8: it's tover the most. I think outside of Justice Alito,
7:40
Speaker 8: the other eight were just incredibly skeptical of Cox's excuses
7:44
Speaker 8: for allowing this widespread infringement to go on. In the
7:48
Speaker 8: record below, there's apparently one period of time at which
7:52
Speaker 8: twenty one percent of all traffic on the Cox's Internet
7:55
Speaker 8: connections twenty one percent involved copyright infringement, and the law
8:00
Speaker 8: super low didn't go after you know, every single mom
8:04
Speaker 8: and pop business or every single college student. It was
8:08
Speaker 8: targeted only at distributors, not people who were downloading the
8:13
Speaker 8: occasional song, but people who were copying music digitally and
8:17
Speaker 8: distributing it on a mass scale. So there was this
8:22
Speaker 8: enormous skepticism expressed by the justice except for Justice Alita,
8:27
Speaker 8: that Cox really wasn't fulfilling it its obligation and needed
8:33
Speaker 8: to do something differently now. On the other hand, there
8:35
Speaker 8: also seemed to be some concern about the size of
8:39
Speaker 8: the jury verdict and whether or not the actions of
8:45
Speaker 8: Cocks were sufficient to constitute willful contributory infringement, which is
8:51
Speaker 8: what set them up for much larger scale of damages
8:55
Speaker 8: than if this had been found to be just ordinary
8:57
Speaker 8: copyright infringement.
8:59
Speaker 2: So what's the and that the justices would use here?
9:03
Speaker 2: Cox contends that under a two thousand and five Supreme
9:07
Speaker 2: Court ruling, it can't be held liable for contributory infringement
9:12
Speaker 2: unless it affirmatively fostered piracy or clearly intended to promote it.
9:18
Speaker 2: The music companies say it's enough that Cox's new subscribers
9:22
Speaker 2: were using its service to download songs illegally.
9:26
Speaker 8: The case on appeal to the Supreme Court present it
9:29
Speaker 8: to pretty crisp issues for decision. The first issue, which
9:34
Speaker 8: I think is where the real fight is going to be,
9:36
Speaker 8: is whether or not contributory copyright infringement required some sort
9:41
Speaker 8: of affirmative action by the tenant. The second question presented
9:45
Speaker 8: for review was whether or not wilfulness required some sort
9:51
Speaker 8: of knowledge of customer infringement. Now, a problem with that
9:55
Speaker 8: second question, the wolfleness standard, is that Cox had failed
10:00
Speaker 8: to object in the trial court to the instruction that
10:05
Speaker 8: the judge gave to the jury about how to find wilfulness.
10:09
Speaker 8: So after the case has finished, all the evidence has submitted,
10:12
Speaker 8: and the attorneys have made their closing argument, and then
10:14
Speaker 8: just before the jury goes into the jury room to
10:16
Speaker 8: make a decision, the judge reads to them a series
10:19
Speaker 8: of instructions as to what the law is. And one
10:21
Speaker 8: of those instructions will go something like Sony Music Corporation.
10:25
Speaker 8: Here is alleged that the contributor copyright infringement was wilful
10:29
Speaker 8: on the part of costs. In order for you to
10:32
Speaker 8: find wilfulness, you must consider the following factors. And typically
10:37
Speaker 8: if a party doesn't believe the judge has stayed at
10:40
Speaker 8: the law correctly to the jury, they get up and
10:43
Speaker 8: they object, and indeed they don't even have to do
10:45
Speaker 8: it at the time of trial. These jury instructions are
10:47
Speaker 8: spent out to the lawyers while advance, and you file
10:50
Speaker 8: the objection with courts saying we objected this, and give
10:52
Speaker 8: the court a chance to refine it, improve it so
10:56
Speaker 8: that there's no objection here. The Cox folks for whatever
10:59
Speaker 8: reason to object to the wilfulness instruction, and that means
11:02
Speaker 8: they waived any objection to wilfulness and had really no excuse.
11:08
Speaker 8: So I just don't see question number two as being
11:12
Speaker 8: resolved in any way in favor of Cox, and indeed
11:16
Speaker 8: I suspect the court won't reach it so that we
11:19
Speaker 8: will get no further instruction from the Supreme Court on
11:22
Speaker 8: what constitutes wilfulness. I think the Court is focused really
11:26
Speaker 8: on the position that Cox is arguing that contributory infringement
11:31
Speaker 8: requires some sort of affirmative act, and that, as they
11:34
Speaker 8: phrased it, they can't be a contributory infringer by providing
11:39
Speaker 8: internet service to one of their customers.
11:42
Speaker 2: So then do you think that they'll send it back
11:45
Speaker 2: to the lower court with an instruction.
11:49
Speaker 8: I just don't know what they're going to do here.
11:53
Speaker 8: I have to be frank, this is one of the
11:54
Speaker 8: more opaque oral arguments I've have listened to. Other commentators
11:59
Speaker 8: have argued that the Court might be looking for some
12:05
Speaker 8: sort of middle ground. Indeed, I think it was Justice
12:07
Speaker 8: sodom Or commented at one point during the argument that
12:11
Speaker 8: the Court was being forced to choose between two extreme positions,
12:16
Speaker 8: and in particular Justice so Myior, who was very skeptical
12:19
Speaker 8: of Cox's position but also didn't quite like the extreme
12:25
Speaker 8: argument being made by Sony Music Corp. In the recording company,
12:28
Speaker 8: seems really perplexed as to what to do. Genuinely perplexed.
12:31
Speaker 8: The problem the Supreme Court faces here is that the
12:35
Speaker 8: standard for contributory copyright infringement has been pretty well settled
12:41
Speaker 8: in this court for more than a century. As early
12:45
Speaker 8: as nineteen twelve, there was a case that involved miniograph machines.
12:50
Speaker 8: If you remember those, they were a pre Xerox machines
12:54
Speaker 8: way of doing sort of a mass production, mass production
12:58
Speaker 8: being a couple hundred There was a case in which
13:01
Speaker 8: a publisher sued a mimeograph company for knowingly selling mimiograph
13:07
Speaker 8: materials to a company that it knew was engaged in
13:11
Speaker 8: infringing copyright works by using the mimiograph machine. And the
13:16
Speaker 8: standard was set out there and has been repeated over
13:20
Speaker 8: and over since that time nineteen twelve. And the standard
13:24
Speaker 8: is pretty simple. If you provide something that you know
13:27
Speaker 8: is going to be used by a person to commit
13:30
Speaker 8: copyright infringement, you've engaged in contributory infringement. And the past
13:35
Speaker 8: cases haven't spoken in terms of needing an affirmative act,
13:38
Speaker 8: although one could argue this did not come up with
13:40
Speaker 8: the Supreme Court hearing that providing the Internet service is
13:43
Speaker 8: an affirmative act. The Cox Company argued court that that's
13:49
Speaker 8: not an affirmative act, but that's sort of a stretch
13:52
Speaker 8: in order to try to get around that line cases,
13:54
Speaker 8: the Cox Company argued that contributory infringement is really a
13:59
Speaker 8: key into aiding and embedding liability in the context of
14:04
Speaker 8: torts and criminal law, and that's a real stretch that
14:07
Speaker 8: I think is just dead wrong. It would give the
14:10
Speaker 8: court a way to get out of this dilemma, but
14:13
Speaker 8: it would mean the court would have to overturn half
14:15
Speaker 8: a dozen cases going back to nineteen twelve for over
14:18
Speaker 8: a century and say now they're not good law anymore.
14:21
Speaker 8: I don't see the Court doing that here.
14:23
Speaker 2: Do you think we'll see that Justice is coming up
14:25
Speaker 2: with some sort of middle ground.
14:28
Speaker 8: So it's a shame that Justice Ginsburg is no longer
14:31
Speaker 8: on the Court. And we've had many conversations about our
14:34
Speaker 8: knowledge of copyright law and her ability to copy together
14:38
Speaker 8: coalition for positions under the Copyright Act that we're actually
14:42
Speaker 8: quite pragmatic and useful. And I just don't see anybody
14:46
Speaker 8: either with that depth of knowledge to copyright law or
14:49
Speaker 8: the ability to do that sort of log rolling on
14:51
Speaker 8: this Court. And so I think it's going to be
14:53
Speaker 8: a real struggle for this Court to come up with
14:55
Speaker 8: some sort of middle ground, particularly in light of the
14:58
Speaker 8: fact that the law here is just so set for
15:01
Speaker 8: such a long period time and the sort of odd
15:03
Speaker 8: cases that Cock sited to the Supreme Court, including this
15:06
Speaker 8: recent gun distribution case sprin court to site recently where
15:10
Speaker 8: the gun companies were being sued for deaths in Mexico,
15:14
Speaker 8: and the argument was they were aiding embedding this criminal activity,
15:18
Speaker 8: and the gun company said, well, we sold the guns
15:21
Speaker 8: to dealers in Texas, not knowing what they were going
15:24
Speaker 8: to do with them, and if anybody's contributed to them,
15:27
Speaker 8: but it's not us. We had no knowledge of it,
15:29
Speaker 8: and that case just doesn't fit here, either legally or factually.
15:35
Speaker 8: And yet Cock sort of beed a lot on that.
15:38
Speaker 8: I mean, it was almost as if there's a hey,
15:40
Speaker 8: we cite to some case in which the second circuit,
15:44
Speaker 8: which everybody beleeves in on the Supreme Court, that'll get
15:47
Speaker 8: us over the humpire. It's just such a stretch that,
15:49
Speaker 8: in fact backfires. One starts to think, well, what's wrong
15:53
Speaker 8: with their case? That that's the best they've got.
15:55
Speaker 2: Yeah, gun distribution and pirated music don't seem to equate.
16:00
Speaker 2: Thanks so much, Terry, as always, that's Terrence Fross of
16:03
Speaker 2: Catnuchen Rosenman. Immigration courts decide about two hundred thousand asylum
16:10
Speaker 2: applications every year, and Douglas Urgus Urlana, his wife and
16:15
Speaker 2: child joined that pool of applicants after fleeing Il Salvador
16:19
Speaker 2: in twenty twenty one. They claimed they were repeatedly threatened
16:23
Speaker 2: by a cartel hit man in a year's long violent
16:27
Speaker 2: vendetta against their extended family, but an immigration judge rejected
16:32
Speaker 2: their bid for asylum, as did the Board of Immigration Appeals,
16:36
Speaker 2: and a federal appeals court deferred to the board's decision,
16:40
Speaker 2: and it appeared during oral arguments this week that the
16:44
Speaker 2: family would not fare much better at the Supreme Court.
16:48
Speaker 2: Several justices from across the ideological spectrum appeared to agree
16:53
Speaker 2: that the Board's decision on whether an immigrant faces persecution
16:58
Speaker 2: serious enough to qualify for asylum is a factual inquiry,
17:03
Speaker 2: not a legal one, and so the Court of Appeal
17:05
Speaker 2: should defer to the Immigration Board's decision. Here are liberal
17:10
Speaker 2: Justice Elaina Kagan and conservative Justice Samuel Alito.
17:14
Speaker 6: And that's the legal rule. A threat can be persecution,
17:17
Speaker 6: but only if it's menacing enough to cause actual harm. Now,
17:21
Speaker 6: what's going to happen in this case is we're going
17:24
Speaker 6: to have to look at all this evidence, all these facts,
17:27
Speaker 6: and decide whether these threats were indeed that level of menacing.
17:33
Speaker 6: And that sounds like really weighing evidence to me. That
17:36
Speaker 6: sounds really factual.
17:39
Speaker 7: It must add up to more than ordinary harassment, mistreatment,
17:43
Speaker 7: or suffering. You may have a set of historical facts
17:49
Speaker 7: that are undisputed, but determining whether they add up whether
17:53
Speaker 7: the totality of those facts satisfies that standard. Sure looks
17:57
Speaker 7: to me like primarily a factual question.
18:01
Speaker 2: Joining me is immigration law expert Leon Fresco, a partner
18:05
Speaker 2: at Hollnden Knight. Leon tell us a little about the
18:08
Speaker 2: asylum process.
18:10
Speaker 4: What a person asks for asylum, they have to prove
18:14
Speaker 4: at the end of the day, that they have what's
18:17
Speaker 4: called a well founded fear of future persecution on the
18:22
Speaker 4: basis of their race, religion, political origin, social group. There's
18:26
Speaker 4: a presumption that if you have experienced what's called past persecution,
18:31
Speaker 4: there's a presumption that you will then have a well
18:35
Speaker 4: founded fear a future persecution. So what does that mean.
18:40
Speaker 4: That means that people go into immigration court and they
18:43
Speaker 4: explain what happened in their country that caused them to leave,
18:46
Speaker 4: and there's cross examination and the judge can ask questions.
18:50
Speaker 4: At the end of all of this, there's two determinations.
18:52
Speaker 4: One did the person experience past persecution? And number two,
18:58
Speaker 4: was it on the basis of one of the protected grounds.
19:01
Speaker 4: So in this Supreme Court case, what happened was there
19:06
Speaker 4: literally was no dispute about the credibility of the facts
19:11
Speaker 4: raised by the foreign national. In this case, Douglas Umberto
19:15
Speaker 4: Orias Oriana, who said that he fled El Salvador after
19:20
Speaker 4: repeated threats and violence from a hitman linked to a
19:23
Speaker 4: drug lord, and he said that the drug lord shot
19:26
Speaker 4: his hot brothers and tracked and thread in his family.
19:28
Speaker 4: And so since there was no dispute about the facts,
19:32
Speaker 4: there was not a factual issue that was being raised
19:36
Speaker 4: on appeal. Instead, the court said, I'm going to take
19:39
Speaker 4: all of the facts that you've presented today as true,
19:42
Speaker 4: and I'm going to say that they still do not
19:45
Speaker 4: rise to the high level of this word persecution such
19:49
Speaker 4: that we can say that you experienced past persecution such
19:54
Speaker 4: that you would get the presumption of future persecution. So
19:58
Speaker 4: now Missed Oris Oriana then says, well, how is that possible?
20:03
Speaker 4: I would like to get review of that. And so
20:06
Speaker 4: when it gets to the First Circuit Court of Appeals,
20:10
Speaker 4: the First Circuit says, We're going to defer to the
20:13
Speaker 4: Board of Immigration Appeals, which is the administrative court that
20:17
Speaker 4: decides this issue at the end of the day. We're
20:19
Speaker 4: going to defer to them and say that even though
20:23
Speaker 4: the facts are not in dispute, we still have to
20:27
Speaker 4: give some difference to their decision. In terms of let's
20:31
Speaker 4: say there's a scale and you're weighing it, how many
20:34
Speaker 4: pebbles go on one scale, how many pebbles go on
20:37
Speaker 4: the other scale, that even that determination gets some difference,
20:42
Speaker 4: that the federal courts can't just reweigh the evidence on
20:48
Speaker 4: their ends and decide whether the facts that were undisputed
20:52
Speaker 4: in a particular case constituted persecution such that the person
20:57
Speaker 4: should win their asylum case.
21:00
Speaker 2: Courts of appeals have been split on whether federal courts
21:03
Speaker 2: can review the Immigration Board's decision from scratch or have
21:07
Speaker 2: to defer the board.
21:09
Speaker 4: The Supreme Court then has to decide, okay, what happens
21:13
Speaker 4: in a case like this where there's not a dispute
21:16
Speaker 4: about the actual facts, but there's a dispute about whether
21:20
Speaker 4: the facts when you weigh them, there's quote unquote significant
21:24
Speaker 4: enough pebbles on the scale. Does the foreign national win
21:29
Speaker 4: or do they lose? Can we reweigh that on our
21:31
Speaker 4: own or do we have to give some difference under
21:35
Speaker 4: some standard of deferential review. And so the foreign nationals
21:40
Speaker 4: obviously claiming there should be the Novo review, the court
21:43
Speaker 4: should look at this and say, okay, we're the threats
21:45
Speaker 4: here that were undisputed sufficient to say that that was
21:49
Speaker 4: past persecution. And the government says no, no, no, the
21:53
Speaker 4: standard is actually much different and that this is a
21:57
Speaker 4: mixed question of law and fact, and so you have
22:01
Speaker 4: to treat that with some type of deferential review. And
22:06
Speaker 4: so you had justices like Justice Court Sis saying a
22:10
Speaker 4: reasonable fact finder standard as opposed to the Novo review,
22:15
Speaker 4: and others wanted to weigh it even more deferentially potentially
22:20
Speaker 4: than even that, and say that basically, if there's substantial
22:25
Speaker 4: evidence to support the determination of the lower administrative court,
22:30
Speaker 4: that's enough. So that would be even a broader deferential standard.
22:34
Speaker 4: And it appears as if really there's not a lot
22:37
Speaker 4: of excitement in the Supreme Court for having a complete
22:40
Speaker 4: the Novo review of this process. So the issue is
22:43
Speaker 4: really going to be how much difference is given in
22:46
Speaker 4: these types of cases moving forward.
22:48
Speaker 2: So Leon, just to clarify, everyone accepts that the facts
22:52
Speaker 2: of the asylum claim are determined by the court below,
22:56
Speaker 2: the Immigration Court. So the only question is how the
23:00
Speaker 2: federal appellate court is going to weigh those facts.
23:04
Speaker 4: Correct So what the lower court said in this case
23:08
Speaker 4: was yes, all these very bad and serious things happened
23:12
Speaker 4: to you. But when we put all those pebbles on
23:14
Speaker 4: the scale, they're not sufficiently weighty enough to actually constitute
23:19
Speaker 4: persecution for the purposes of winning your case. And then
23:23
Speaker 4: the question is, okay, when this gets to the federal court,
23:26
Speaker 4: can they literally reweigh all of that exact evidence and say, no, no, no,
23:30
Speaker 4: those stones do weigh enough to tip the scales in
23:33
Speaker 4: favor of the foreign national or are they stuck with Hey,
23:39
Speaker 4: if this is in any way defensible, we have to
23:41
Speaker 4: keep this decision the way it is. And it seemed
23:45
Speaker 4: like the Supreme Court did want to give more difference
23:47
Speaker 4: than rather re weighing all of the facts in the case,
23:52
Speaker 4: even if they're undisputed, to decide if they need the
23:55
Speaker 4: legal standard of past persecution.
23:58
Speaker 2: If the appeals court can't reweigh what the lower court decided,
24:04
Speaker 2: it's not much of a review, is it correct.
24:06
Speaker 4: I mean, it would only be a review if essentially
24:10
Speaker 4: what happened was somebody goes into immigration court and they
24:15
Speaker 4: say the government came in and shot me one time
24:19
Speaker 4: in the left arm because I'm a dissident, and then
24:22
Speaker 4: they left, and then two weeks later they shot me
24:25
Speaker 4: in the right arm. And then three weeks later they
24:27
Speaker 4: shot me in the left leg and they said, you
24:30
Speaker 4: want this to keep going or are you going to
24:32
Speaker 4: stop being a dissident? And then the immigration judge says, well,
24:36
Speaker 4: that doesn't seem like sufficient persecution. You only got shot
24:39
Speaker 4: three times. Maybe in a case like that, then the
24:43
Speaker 4: court would say, well, there's no way a reasonable fact
24:46
Speaker 4: finder could come to that determination that that wasn't persecution,
24:50
Speaker 4: because then you'd have this sort of reasonable fact finder
24:53
Speaker 4: deference or some other standard like that. It's not never
24:58
Speaker 4: will we review it. So they're not saying ever, But
25:00
Speaker 4: as opposed to a case like this, where they're saying, okay, threats,
25:05
Speaker 4: how serious are the threats or the threats very serious?
25:08
Speaker 4: They might say, look, this is the kind of case
25:10
Speaker 4: that falls in the gray zone. And when you're in
25:12
Speaker 4: the gray zone, the government wins.
25:15
Speaker 2: I'm curious, what do you think about the threats in
25:17
Speaker 2: this case? Do you think they were serious enough for
25:20
Speaker 2: an asylum claim?
25:22
Speaker 4: I think it's really in the gray zone. I think
25:24
Speaker 4: this is the problem when they talk about sort of
25:26
Speaker 4: bad facts make bad law, is this is the exact
25:30
Speaker 4: type of case where one judge would definitely grant asylum
25:34
Speaker 4: one hundred out of one hundred times, and another judge
25:37
Speaker 4: would never grant the asylum zero out of one hundred times.
25:40
Speaker 4: Because people just approach these cases with different levels of
25:44
Speaker 4: sympathy and different levels of concern and different standards in
25:49
Speaker 4: their mind of what constitutes persecution. It really does become
25:54
Speaker 4: problematic in terms of the subjectiveness of the process. But
25:59
Speaker 4: what the Supreme we are trying to figure out is
26:01
Speaker 4: where does the subjectiveness stop. Does it stop at the
26:04
Speaker 4: Court of Appeals or does it stop at the administrative level.
26:08
Speaker 4: And it seems like they're going to stop it at
26:10
Speaker 4: the administrative level for the most part, and not bring
26:14
Speaker 4: in sort of a new antiseptic Court of Appeals who's
26:18
Speaker 4: just reading a transcript without any other context than deciding
26:22
Speaker 4: is this sufficient persecution. It didn't really seem like any
26:26
Speaker 4: of the Supreme Court justices wanted to do that. The
26:28
Speaker 4: novo I.
26:29
Speaker 2: Agree in these arguments. It seemed like the justices were
26:33
Speaker 2: mostly on the same page. Thanks as always, Leon, that's
26:38
Speaker 2: Leon Fresco of Holland and Knight and in other Supreme
26:41
Speaker 2: Court news. On Thursday, in a six to three decision,
26:45
Speaker 2: the Court came to the rescue of Texas Republicans allowing
26:50
Speaker 2: next year's elections to be held under their newly drawn
26:53
Speaker 2: congressional map, despite a lower court ruling that the map
26:57
Speaker 2: likely discriminates on the basis of race. Joining me Is Bloomberg,
27:01
Speaker 2: Supreme Court reporter Greg Store Greg what was the reasoning
27:04
Speaker 2: of the six Conservatives for allowing Texas to use this map?
27:08
Speaker 9: Well, the Court gave us a little bit of its reasoning,
27:11
Speaker 9: a little bit less than two pages on it. First
27:13
Speaker 9: of all, they said that the district court that ruled
27:15
Speaker 9: against Texas that said these districts are probably a racial jerymnader,
27:19
Speaker 9: that that lower court did not quote honor the presumption
27:22
Speaker 9: of legislative good faith. In other words, they should have
27:24
Speaker 9: given Texas the benefit of the doubt that it was
27:26
Speaker 9: acting constitutionally. Secondly, the Supreme Court said that normally, in
27:31
Speaker 9: cases where you're challenging a racial jerymander, you have to
27:34
Speaker 9: produce an alternative map that would accomplish whatever the state's
27:37
Speaker 9: trying to accomplish without using race so much. And they
27:41
Speaker 9: faulted the challengers for not doing that. And then finally,
27:44
Speaker 9: the Court said this decision came too close to the election.
27:48
Speaker 9: In the past, the Supreme Court has said that federal
27:52
Speaker 9: courts should not change the state's election rules on the
27:55
Speaker 9: eve of the election. And you might say, well, the
27:57
Speaker 9: election is not for another eleven months or so, but
28:00
Speaker 9: in this case, Texas's filing deadlines were coming up, and
28:04
Speaker 9: the Supreme Court said, that's close enough, and that's a problem.
28:07
Speaker 9: So the federal court shouldn't act, even if it found
28:10
Speaker 9: the districts as it did, to be probably unconstitutional.
28:14
Speaker 2: All three liberals dissented, No surprise there. What was the
28:18
Speaker 2: focus of Justice Kagan's seventeen page descent.
28:23
Speaker 9: She mostly focused on the process that this district court
28:26
Speaker 9: went through to gather evidence about what was going on,
28:29
Speaker 9: why the state drew this map, and in particular looking
28:32
Speaker 9: at things like this letter from the Justice Department that
28:36
Speaker 9: said that the state should eliminate these so called coalition
28:39
Speaker 9: districts that are made up of heavily Hispanic, heavily black voters,
28:43
Speaker 9: you know, with the two of them combining to be
28:45
Speaker 9: more than fifty percent of the district. And Kagan said
28:48
Speaker 9: the Supreme Court should have deferred to those factual findings
28:52
Speaker 9: of the district court who spent nine days hearing evidence
28:54
Speaker 9: about this case, and she blasted them for essentially deciding
28:58
Speaker 9: this thing over a holiday weekend.
29:00
Speaker 2: And then on Friday, the Justice has announced that they'll
29:03
Speaker 2: take up President Trump's planned rollback of automatic birthright citizenship.
29:09
Speaker 2: Are you surprised that they took this case since it's
29:13
Speaker 2: basically universally been accepted that the Fourteenth Amendment confers citizenship
29:19
Speaker 2: on virtually everyone born on US soil.
29:23
Speaker 9: Not at all surprised because this is the kind of
29:26
Speaker 9: thing that the Supreme Court wants to do itself and
29:28
Speaker 9: not lead to the lower courts. So lower courts have
29:31
Speaker 9: across the board ruled against Trump on this and said
29:34
Speaker 9: that what he's trying to do through his executive order
29:38
Speaker 9: is unconstitutional and also in violation of federal immigration law.
29:42
Speaker 9: But given that these are decisions that block the federal
29:45
Speaker 9: government from doing something, that's almost always something the Supreme
29:48
Speaker 9: Court wants to do itself.
29:50
Speaker 2: A lot of big decisions that are going to be
29:52
Speaker 2: coming out of the Supreme Court this term. Thanks Greg,
29:56
Speaker 2: that's Bloomberg Supreme Court reporter Greg store.
29:59
Speaker 10: I saw that room was one of the most troubling
30:01
Speaker 10: things I've seen in my time in public service. You
30:05
Speaker 10: have two individuals in clear distress without any means of
30:11
Speaker 10: locomotion with a destroyed vessel who were killed by the
30:16
Speaker 10: United States.
30:18
Speaker 2: Congressman Jim Hines, the top Democrat on the House Intelligence Committee,
30:22
Speaker 2: described his reaction to video footage of the second attack
30:27
Speaker 2: that killed two survivors after an initial strike on an
30:31
Speaker 2: alleged drug smuggling boat in international waters near Venezuela on
30:35
Speaker 2: September two. Lawmakers and military legal experts have questioned whether
30:41
Speaker 2: the attack on survivors was a war crime, because international
30:46
Speaker 2: law prohibits killing enemy combatants who no longer pose a threat.
30:51
Speaker 2: Navy Admiral Frank Bradley, who oversaw the strikes, briefed lawmakers
30:56
Speaker 2: on Thursday in closed door sessions and confirmed that there
31:01
Speaker 2: had not been a kill them all order as reported.
31:05
Speaker 2: After the briefing, Republican Senator Tom Cotton, chairman of the
31:09
Speaker 2: Senate Intelligence Committee, said he believes the men did still
31:13
Speaker 2: pose a threat after the first strike.
31:16
Speaker 7: I saw two survivors trying to flip a boat loaded
31:21
Speaker 7: with drugs down the United States back over so they
31:24
Speaker 7: could stay in the fight.
31:26
Speaker 2: Joining me is Professor Joshua Castenberg of the University of
31:29
Speaker 2: New Mexico Law School. He was a military judge and
31:33
Speaker 2: lawyer in the US Air Force, Josh Democratic Senator Chris
31:37
Speaker 2: Van Holland said the second strike was an extra judicial killing,
31:42
Speaker 2: amounting to murder or a war crime. What's your analysis
31:46
Speaker 2: of the second strike?
31:48
Speaker 1: So my take on the second strike is partly colored
31:51
Speaker 1: by the fact that the administration has this changing narrative constantly,
31:56
Speaker 1: and the latest narrative that they come up with is
31:59
Speaker 1: implaus that somehow these men were going to climb back
32:02
Speaker 1: on the vessel and continue on in their cocaine run.
32:06
Speaker 1: So having said that, look, you know, the United States
32:09
Speaker 1: has convened grand juries for murder on the high seas
32:12
Speaker 1: going back to the War of eighteen twelve, and there's
32:16
Speaker 1: a federal statute prohibiting precisely what occurred, you know, murder
32:20
Speaker 1: on the high seas. Now, of course, Trump himself is
32:25
Speaker 1: immune from any criminal liability thanks to the Supreme Court's decision,
32:30
Speaker 1: you know, Trump versus United States. But it seems to
32:34
Speaker 1: mean that nobody else is immune from that kind of
32:37
Speaker 1: a charge. On the other hand, who's going to pursue it.
32:40
Speaker 1: I don't think the Attorney General of the United States
32:43
Speaker 1: is going to differ from the White House's version of
32:46
Speaker 1: events or their own legal reasoning.
32:49
Speaker 2: Defense Secretary Pete Hegsith said he left the room after
32:53
Speaker 2: the first strike. Who's responsible the Navy admiral who ordered
32:58
Speaker 2: the second strike or the Defense secretary who reportedly approved
33:03
Speaker 2: the overall operation.
33:05
Speaker 1: Well they all are. And I'm chuckling in a sad
33:08
Speaker 1: kind of way about that claim of Secretary of Defense
33:13
Speaker 1: or secretary of war he seths because at the end
33:16
Speaker 1: of the day, it really doesn't matter in this regard.
33:19
Speaker 1: You know, coming out of World War One, if not
33:22
Speaker 1: the Civil War, the United States embraced the doctrine of
33:26
Speaker 1: command responsibility, and we particularly saw that play out in
33:31
Speaker 1: World War Two at the Nuremberg and International Tribunal for
33:35
Speaker 1: War Crimes in Tokyo. Those trials, and even in US
33:39
Speaker 1: law when the Army under General MacArthur prosecuted generally Yamashta,
33:44
Speaker 1: nobody ever alleged that he was the trigger puller or
33:47
Speaker 1: gave an order for his troops to massacre thousands of
33:50
Speaker 1: innocent Filipinos. As the United States liberated the island, they
33:54
Speaker 1: prosecuted and for failing to control as troops and for
33:57
Speaker 1: creating the environment where it would be made possible. The
34:01
Speaker 1: only thing in a real rule of law setting that
34:05
Speaker 1: would save hegsath Is if he preferred uc him J
34:09
Speaker 1: charges against the individual who gave the order. But I
34:12
Speaker 1: don't think that's going to happen. I think they're all
34:14
Speaker 1: banking on protection from Republican allies in the House and
34:19
Speaker 1: Senate and then ultimately presidential pardons which have now been
34:22
Speaker 1: given to Honduran drug dealers.
34:25
Speaker 2: What about the legality of the broader military campaign which
34:29
Speaker 2: is ongoing. After the briefings on Thursday, the military announced
34:33
Speaker 2: that he had struck another boat, killing four people. That
34:37
Speaker 2: brings the death toll to at least eighty seven people.
34:41
Speaker 1: So we are not at war with Venezuela, and the
34:46
Speaker 1: idea that United States domestic law can reach into Venezuelan
34:52
Speaker 1: waters has no basis. However, and this is a big caveat.
34:57
Speaker 1: Under international maritime law, any nation can stop action such
35:03
Speaker 1: as piracy or other high crimes that occur on the sea.
35:08
Speaker 1: In order to do that, you have to have absolute
35:12
Speaker 1: correct intelligence that a crime such as international drug trafficking
35:19
Speaker 1: is occurring, and there has to be some sort of
35:21
Speaker 1: agreement among nations that that is occurring. And on top
35:25
Speaker 1: of that, you have to be able to show that
35:29
Speaker 1: what you're doing is consistent proportionality wise to the crime involved.
35:36
Speaker 1: And the problem with that proportionality aspect is that the
35:39
Speaker 1: United States Coast Guard, which most often does not use
35:43
Speaker 1: that kind of lethal force, does an excellent job of
35:47
Speaker 1: stopping kilo upon kilo upon kilo of cocaine coming into
35:52
Speaker 1: the United States. They don't catch at all. So you know,
35:56
Speaker 1: the argument that this is lawful is sort of the
36:00
Speaker 1: realism of law into the alice in wonderland of law.
36:05
Speaker 2: Let's turn now to the video released last month by
36:09
Speaker 2: six Democratic members of Congress directly addressing active duty military
36:16
Speaker 2: and intelligence personnel.
36:18
Speaker 1: Right now, the threats to our constitution aren't just coming
36:21
Speaker 1: from a miroad, but from right here at home.
36:23
Speaker 4: Our laws are clear. You can refuse illegal orders. You
36:27
Speaker 4: can refuse illegal orders.
36:29
Speaker 3: You must refuse illegal orders.
36:31
Speaker 2: No one has to carry out orders that violate the
36:33
Speaker 2: law or our constitution.
36:35
Speaker 10: We know this is hard and that it's a difficult
36:37
Speaker 10: time to be a public.
36:38
Speaker 4: Servant, but whether you're serving in the CIA.
36:40
Speaker 1: The Army, or Navy Air Force.
36:43
Speaker 4: Your vigilance is critical and know that we have your back.
36:47
Speaker 2: All six who have military or intelligence backgrounds, we're just
36:51
Speaker 2: telling service members and intelligence officers what the law is.
36:57
Speaker 2: Yet President Trump has called them tray and said they
37:01
Speaker 2: were engaging in seditious behavior punishable by death.
37:05
Speaker 1: Well, first of all, all the members of the House
37:09
Speaker 1: and Senate who made that video said was you have
37:13
Speaker 1: a duty to obey the law, and that includes a
37:16
Speaker 1: duty to disobey on lawful orders. That's a correct statement
37:20
Speaker 1: of the law. And I don't think that any investigation
37:25
Speaker 1: into those members should ever come up as a result
37:28
Speaker 1: of them making a correct statement of the law. I
37:31
Speaker 1: think that that concern is real based on this bellicosity
37:36
Speaker 1: that's come out of the White House, and that bellicosity
37:40
Speaker 1: includes the use of the federalized National Guard in our cities.
37:46
Speaker 2: According to Bloomberg's sources, FBI headquarters is pressuring the bureau's
37:51
Speaker 2: domestic terrorism agents to open a seditious conspiracy investigation into
37:58
Speaker 2: those six democratic laws.
38:01
Speaker 1: Yeah. You know, I was asked the other day if
38:05
Speaker 1: there is precedent for this, or precedent for a military investigation,
38:11
Speaker 1: and to Senator Mark Kelly, and I said, no, there
38:15
Speaker 1: is not, not in the United States. There is precedent
38:18
Speaker 1: for it elsewhere. One of the things that the framers
38:21
Speaker 1: of our constitution and all their genius wanted to do
38:25
Speaker 1: was to create a government that was responsible to the
38:29
Speaker 1: people through the legislative branch. And the last time something
38:34
Speaker 1: like this happened wasn't in the United States. It was
38:37
Speaker 1: before the United States was created. It was Oliver Cromwell
38:42
Speaker 1: using his new model army to pressure Parliament to take
38:46
Speaker 1: votes the way that he wanted them to take votes,
38:49
Speaker 1: including the execution of Charles the First. We built a
38:53
Speaker 1: constitution to prevent the very thing that apparently the FBI's
38:59
Speaker 1: leaderships to now think is plausible seditious conspiracy. Look to me,
39:06
Speaker 1: if there's a high crime or misdemeanor, it's the attempt
39:10
Speaker 1: to cower members of Congress from exercising their free speech rights.
39:15
Speaker 1: It's not the exercise of those free speech rights themselves.
39:19
Speaker 2: The Civil War era seditious conspiracy law requires prosecutors to
39:25
Speaker 2: prove a defendant conspired to use force to oppose US
39:29
Speaker 2: government authority or to prevent, hinder, or delay the execution
39:34
Speaker 2: of any US law. Is it sort of absurd to
39:38
Speaker 2: claim under that statute that this was in any way
39:43
Speaker 2: seditious conspiracy?
39:45
Speaker 1: Again, I go back to my Alice in Wonderland quote. Yes,
39:48
Speaker 1: in the rule of law. It certainly is that you
39:52
Speaker 1: need to go back to the Civil War, and you
39:54
Speaker 1: can look at members of Congress, slaveholder like Benjamin Gwynn
39:59
Speaker 1: Harris from Maryland, who actually gave a prayer on the
40:02
Speaker 1: floor of Congress for a Southern victory, or a pacifist
40:06
Speaker 1: like Alexander Long who gave anti war speeches, and at
40:10
Speaker 1: no time were those two sitting members of Congress investigated
40:16
Speaker 1: or prosecuted. You know, every time you and I speak
40:20
Speaker 1: about the administration, I say they pushed the envelope. But
40:24
Speaker 1: on this particular case, this truly is. It's beyond absurd.
40:28
Speaker 1: It's truly an affront to the Constitution, the separation of powers,
40:33
Speaker 1: and the ability of members of Congress to represent their
40:37
Speaker 1: constituents on the very fundamental positions that a majority of
40:41
Speaker 1: their constituents elected them to do. Again, it goes back
40:45
Speaker 1: to the pre revolutionary days, the mentality of Cromwell and
40:49
Speaker 1: the rule of the major generals and the dictatorship of
40:52
Speaker 1: the mid sixteen hundreds in Britain, the very thing we
40:54
Speaker 1: had a revolution against.
40:56
Speaker 2: You know, your history. Just that's certain. Thanks for joining me.
41:01
Speaker 2: That's Professor Joshua Kastenberg of the University of New Mexico
41:05
Speaker 2: Law School. And that's it for this edition of The
41:08
Speaker 2: Bloomberg Law Show. Remember you can always get the latest
41:11
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