If There Were No TSA — Addendum

Since posting the TSA data on gun recoveries at airports, I continued to look for evidence that TSA systematically and aggressively addresses the guns-in-carryon-bags issue with prosecutions of offenders. I could find no such evidence on TSA’s website or in news stories about various incidents at airports, including those involving loaded and chambered weapons. TSA’s approach appears to be to accept the excuse that “I forgot the gun was in my bag” or “my husband must have put it in there without telling me.” They do confiscate weapons, though not in all cases, but do not seem interested in actually imposing legally authorized punishments. TSA instead continues, thorough its blog posts and media releases to remind travelers about the rules governing transport of guns on aircraft. See, for example, https://bit.ly/2qUYVNw. Meanwhile, finding such weapons at the checkpoints leads to delays of other passengers while the incident is resolved.

This is a curious policy, at best, given that the Customs agents at airports appear to have a much less lenient approach to people “forgetting to declare” things like food items. Indeed, in one recent case, a woman has been fined $500 for failing to declare an apple provided by Delta Air Lines and contained in a plastic package bearing Delta’s logo. She placed the apple in her carryon while on the aircraft, planning to eat it on the next domestic leg of her flight home. Views may and do differ about whether this type of incident warrants a huge fine and possible loss of Global Entry status, but the real issue, in my view, is the disparity in practice between TSA and Customs & Border Patrol, in light of the potential risks.

Moreover, it is apparently the case that enforcement of the carryon restrictions ultimately depends on state or local law governing the possession of firearms. See, for example, https://bit.ly/2HV4Da7 and https://on-ajc.com/2FavsUZ. I don’t understand why this would be true given that the offenses occur in federally controlled airport zones and violate federal regulations, which, under the Supremacy Clause of the U.S. Constitution, control over conflicting state/local laws. There are apparently some exceptions, like New York, but, of course, the pro-gun crowd are pretty unhappy about anything that they think smacks of restricting their “rights.” See https://fxn.ws/2usKvZI.

I conclude more or less where these posts began. The other day a passenger who had allegedly touched a female passenger inappropriately refused to deplane peacefully when ordered to do so and the police had to use a stun gun on him multiple times to subdue him. https://bit.ly/2HrJUcQ. Imagine how this might have gone down if this passenger had possessed a loaded pistol in his carryon bag.

If There Were No TSA …

Everyone seems to have a “security checkpoint story,” either something they experienced or an incident they observed. This has led to calls for the abolition of

the Transportation Security Administration (TSA), privitization of the airport security process and other “solutions” to preventing the use of an aircraft as a terrorist weapon, all of which approaches are intended to reduce the inconvenience and, occasionally, humiliation that occurs, especially when one is running late for a flight.

The problem may be getting worse. TSA announced a few weeks ago that it had finished rolling out enhanced screening of carry-on bags at airports across the country. https://bit.ly/2H3HMvR. The new process, according to TSA, requires travelers to:

place all personal electronics larger than a cell phone in bins for X-ray screening in standard lanes. In addition … TSA officers may instruct travelers to separate other items from carry-on bags such as foods, powders, and any materials that can clutter bags and obstruct clear images on the X-ray machine. Travelers are encouraged to organize their carry-on bags and keep them uncluttered to ease the screening process and keep the lines moving.

Somewhat curiously, I haven’t heard much about the new system causing problems, despite its having been started last summer. Perhaps, contrary to the teachings of experience, air travelers are indeed “organiz[ing] their carry-on bags and keep[ing] them uncluttered to ease the screening process and keep the lines moving,” as TSA has asked.

The TSA Administrator said that “these enhanced screening measures enable TSA officers to better screen for threats to passengers and aircrew while maintaining efficiency at checkpoints throughout the U.S….Our security efforts remain focused on always staying ahead of those trying to do us harm and ensuring travelers get to their destination safely.”

Well, they better had, because, as a result of the bizarre gun culture that pervades  American society, the greatest danger appears to come, not from terrorists, but from ordinary air travelers packing heat, ready to defend themselves and others from any threat, real or imagined. I say this because it is reliably reported that in just the first week of April, TSA discovered 64 firearms in carry-on bags at airports around the United States. Of those weapons, 52, or 81 percent, were loaded and 13, or 20 percent, had a round in the firing chamber.

This, despite the fact that TSA may assess civil penalties of up to $13,066 per violation per person for carrying prohibited items on an aircraft. https://americansecuritytoday.com/tsa-finds-63-firearms-carry-bags-last-week-learn-videos/ This, despite the fact that incidents of “out of control” passengers seem to be on the increase.

Were it not for the vigilant screening efforts carried out by TSA, and assuming the first week of April was typical, there is a chance that someone on your flight will be armed with a pistol with live rounds in the chamber, ready to shoot at … what? A provocation by another passenger? A rude flight attendant? At altitude, in a pressurized cabin.

Think this is  overstatement? In fact, the year 2017 set a record for weapons discoveries; according to TSA records:

  • 5 million (771,556,886) passengers traveled through 440 federalized airports in 2017, a rate of more than 2 million a day;
  • A record setting 3,957, firearms were discovered in carry-on bags, an average rate of 76.1 firearms per week, or . 10.8 firearms per day;
  • 3,324 (84 percent) of the total firearms discovered were loaded; and 1,378 (34.8 percent) of the total had a round chambered;
  • The most firearms discovered in one-month – 31 – were in August at the Hartsfield–Jackson Atlanta International Airport (ATL), but in total, firearms were intercepted at 239 airports.
  • The 2017 total represents a 16.7 percent increase in firearm discoveries over2016’s totalof 3,391.

https://www.tsa.gov/blog/2018/01/29/tsa-year-review-record-amount-firearms-discovered-2017

There’s more. The 2017 cache of intercepted weapons went well beyond mere pistols. A sample of other items includes:

  • A checked bag with an ammunition box with three live ground burst simulators, two live M83 smoke grenades, and one inert practice grenade — Palm Springs International Airport (PSP).
  • A live flashbang grenade in a carry-on bag — San Diego International Airport (SAN).
  • A live smoke grenade — Raleigh–Durham International Airport (RDU).
  • A one-pound bottle of gun powder in a checked bag at the Ketchikan International Airport (KTN).
  • Five one-pound bottles of gun powder in a checked bag — Boise Airport (BOI).
  • A ten-ounce container of gun powder in a checked bag — Salt Lake City International Airport (SLC).

This, my fellow Americans, is one small part of the regime we have allowed to develop in our country. So, next time you are tempted to complain about the security process at the airport, try to remember what you have read here. I don’t like going through security any more than anyone else, but without it, we’d all probably be killed by some “patriot” with a Glock 9mm in his briefcase.

How Long Does It Take to Figure Out Equal Treatment?

This has been a rough stretch for Starbucks, what with the arrest in Philadelphia of some black men who hadn’t ordered anything while waiting for a friend to arrive. I have done this more than once myself, back in the day before Starbucks did away with Sumatra in favor of “blonde” coffee, whatever that is.

I had written on Twitter that Starbucks needed to do more than issue the customary “equality is one of our most important values” talking point. I was impressed when the company announced it was closing operations across the country for a day to engage in serious training of its entire staff, including awareness of implicit bias and other factors that can, without one’s conscious awareness, influence how we react to people different from us in some particular.

At the same time, I was aware of the earlier announcement by Starbucks that it had “reached 100 percent pay equity for partners of all genders and races performing similar work across the United States.” https://news.starbucks.com/news/starbucks-pay-equity-for-partners That same announcement stated, however, that the process had taken ten years to finish. Flush with that news, the company Chief Partner Officer said that it would work “with deliberate speed” to close the gender pay gap worldwide.

I am seriously puzzled as to how a company working with “deliberate speed,” a phrase borrowed from the Supreme Court decision in Brown v. Board of Education wherein the Supreme Court unanimously held that “separate but equal” education was unconstitutional. The Court directed the lower federal courts to enforce its decision “to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases.”

The phrase was ultimately understood to mean “slow,” and that was indeed the pace of integration in the face of massive resistance by whites, especially in the South.  A fascinating discussion of the background, internal discussions and aftermath of the Brown decision can be read at https://ampr.gs/2HcERkx, including the etymology of the phrase “with all deliberate speed.”

Desegregating schools was a massive culture change for the entire nation, overturning practices that had persisted from the very origins of the country. Starbucks is just one company. It has records of who does what and what they are paid. Doling out coffee and tea is no doubt more complicated than I imagine, never having been a barista myself, but it is certainly not equivalent in complexity to desegregating the educational system of an entire country. The Starbucks announcement of its achievement goes on at great length to discuss how complicated the process was. Maybe so, but it reads somewhat like a set of excuses for a ten-year process that could and should have been accomplished much faster.

Setting aside my perhaps overly cynical reaction to the pay-gap announcement, Starbucks gets kudos for at least reaching the goal and committing to expand its scope in the near future. Meanwhile, we can only hope that it does not take another decade to convince its employees that treating black people the same as others is absolutely necessary, starting now.

 

 

Scott Pruitt – Destroyer of Worlds

Do you know how many soldiers make up a platoon in the U.S. Army? While answers vary by source, there appears to be consensus around a size of 16 to 60 soldiers. Thus, the security detail demanded by Scott Pruitt, Donald Trump’s appointee as head of the Environmental Protection Agency, numbering at least 20 is the equivalent of having a full-time platoon of American soldiers for “protection.” Exactly what Pruitt is so afraid of remains an open question.

On the one hand, we have Pruitt stealing, in effect, from the public through a multitude of unjustifiable first-class trips, installation of a “secure phone booth” costing more than $40,000, and other over-the-top charges for his office rework. On the other hand (or is it the same hand?), we have a man who, before his appointment by Trump was firmly entrenched as a public official in Oklahoma with the industries seeking to exploit the environment for private gain, now using his federal office to further reward those same industries and companies.

Thinking of Pruitt’s tenure as EPA head brings to mind Robert Oppenheimer, a famous physicist who led the Los Alamos Laboratory and is credited, with others, as being the “father of the atomic bomb” for his role in the World War II Manhattan Project that created the first such bomb. After observing the test firing in New Mexico, Oppenheimer later said it drew to his mind the words from the ancient Hindu text, Bhagavad Gita, “Now I am become Death, the destroyer of worlds.”

Pruitt, of course, appears to know little of science and to care nothing about it in any event. His worldview appears to be that Earth is here for one reason, the unlimited exploitation of its resources by mankind, through the vehicles of mining, logging, drilling, whatever it takes and wherever is desired. Thus, in the space of a little more than a year, Pruitt has:

  • spent millions on his personal around-the-clock security, including salaries ranging from $103,000 to nearly $162,000
  • slashed the working budget of EPA by about 30 percent;
  • claimed that threats against him have sky-rocketed, but there are no public reports of arrests or prosecutions;
  • flown on charter flights and first-class flights that included putting his security detail in first-class, with the excuse that being in first-class means they can exit the plane faster; when paying for his own travel, Pruitt flew coach;
  • rolled back auto fuel-efficiency rules;
  • promoted Trump’s withdrawal from the Paris climate accord;
  • directed payment of extraordinary bonuses of 30 & 52 percent to two close aides who joined him from Oklahoma;
  • taken adverse job actions against professional agency staff who questioned his spending/travel practices;
  • insisted that vehicles in his entourage use lights & sirens when moving through Washington streets to attend dinners;
  • rented a room from the wife of a lobbyist with business before the EPA;
  • denied, contrary to the evidence, that he authorized the excessive raises or that he approved the $43,000 installation of a sound-proof booth in his office, including biometric door locks and other security features more appropriate for a banana-republic dictator;
  • incurred frequent high-cost luxury accommodation charges, seeking approval after-the-fact;
  • accepted expense reimbursements from groups with business before the EPA;
  • rescinded, often with limited process, rules protecting the water, air and national parks, allowing uncontrolled exploitation of unique national resources without regard to the consequences.

In light of those and other legal/ethical lapses, the Washington Post has called for Pruitt’s firing, but Trump continues to support him because he is executing Trump’s plan to undo every environmental protection he can find. If there’s one thing Trump hates as much as exposure of his own corruption, it’s Obama-era environmental regulations. He wants them all gone and Pruitt is just the man to do his, and the exploitative industries’, bidding.

Pruitt is on par with the likes of Ben Carson, Trump’s appointed head of the Housing & Urban Development agency, for which Carson had zero qualifications, and Ryan Zinke, Trump’s appointed Secretary of the Interior, who repeatedly calls himself a “geologist,” based solely on having a college major in geology 34 years ago, and whose principal goal appears to be reducing the size of national parks so they can be exploited for minerals, oil and gas. Scott Pruitt sees his charge as clearing the way for unregulated commercial exploitation by private firms of the nation’s precious natural resources, including its clean water and air.

It is extremely unlikely that such a person would have been allowed to continue in office overseeing an agency whose legally established purpose is the exact opposite of Trump’s and Pruitt’s agenda. The Republican controlled Congress, however, continues to tolerate this situation and is thus complicit in the crimes against nature and humanity that this administration is perpetrating in the interest of enriching already wealthy corporations and individuals.

You have read it here before, but it bears repeating. We are facing a grave threat to our well-being as a people and as a country. Absent the bringing of criminal indictments and impeachment against Trump, the 2018 mid-term elections are the next real opportunity to regain the upper hand before it is too late. You should tell everyone you know that is capable of independent thought and reason why they must vote in November for Democrats, and why they must help others in need of assistance in getting to the polls and fulfilling their citizen responsibilities. This is not a drill.

Sources for this post: https://cnn.it/2vlJVOb; https://bit.ly/2J5LRwm; https://politi.co/2qD1hBg; https://wapo.st/2qFXBho; https://nyti.ms/2Eoc7iC;https://bit.ly/2JVc1De; https://bit.ly/2qfdACU; https://bzfd.it/2J6g0LZ; https://nyti.ms/2H40tiY; https://politi.co/2viE7F0.

 

NRA, Fear Emma Gonzalez

If you didn’t march with the kids today in the March for Our Lives, the loss is yours. My wife and I participated in New York City, where the turnout exceeded estimates by many multiples. We did not hear the speeches live because the crowd was so large. The starting point was West 72nd Street at Central Park West but we were directed by the police to go to 86th Street before being allowed to turn and join the main group of marchers. If you have not heard Emma Gonzalez speech, witnessed her extraordinary poise and maturity, you owe it to yourself to watch it in its entirety. Here is the link: https://bit.ly/2pBSuz8 Do not turn it off during the long, most extraordinary pause in her address to the assembled marchers.

Emma Gonzalez and her generation are the next great wave of voters. Many are already old enough or will be by the 2018 mid-term elections. They have had all they are going to take of excuses from the likes of Sen. Marco Rubio with his “let’s all get together on a compromise because some people don’t think gun control will be effective.” An overwhelming majority of Americans in poll after poll say that the time for action is now, not some vague point in the distant future. The young people of Emma Gonzalez’s generation and the ones behind them are motivated to compel change through the ballot box and there are many of them. NRA money can’t buy them. They are not afraid of a government takeover or other paranoid delusion spread by the gun lobby. They are afraid of being massacred next week or next month in their schools, like so many of their friends. Yes, NRA, you should fear Emma Gonzalez more than anything else. She sees you for what you are and she, and her friends are going to remove from office the sycophants that have taken NRA money and done its bidding for too long. Time’s up.

Here is a selection of photographs I took during today’s march in New York City. For context, the photos start as the huge group of marchers moves uptown from the 79th Street subway station toward 86th. It is worth noting that the NYPD we encountered were uniformly helpful in answering questions. The “show of force” near the end of the photo set is simply the police trying to move the marchers off of 6th Avenue onto the exit at 44th Street. The pictures close with a chanting session near Times Square where the kids attracted a large crowd of supporters. These amazing young people are not going away.

#MarchforOurLives

Addendum to “Trump’s Lawyers Speak for … Trump, Themselves, Somebody, Nobody”

It is widely reported that Michael Cohen, who allegedly represents himself in connection with the Non-Disclosure Agreement enter into by Stormy Daniels in exchange for $130,000 paid by Cohen personally (Cohen says), is claiming that he is entitled to damages from Stormy Daniels of $20 million for her multiple violations of the agreement.

Given the “looseness” of the factual setting in this situation, we have to make some assumptions in order to say anything rational about it. So, let’s go along, hypothetically, with Cohen’s claim that he paid the hush money from his own pocket with no knowledge of, or expectation of reimbursement by, Trump. Let’s also go along for now with the assertion that Ms. Daniels violated the agreement by publicly declaring an affair with Trump.

Now, let’s assume that either through arbitration enforceable by a court order, or by a direct lawsuit, Cohen gets a verdict that Ms. Daniels violated the “hush agreement.”

Who was damaged by the violation of the NDA?  Cohen? He was not the real party in interest. The NDA was designed to protect Donald Trump, not Michael Cohen. Whatever Ms. Daniels may have said about her claimed affair with Trump is about Trump and, if there is an argument to be made, the argument is that Trump sustained the damages, not Cohen.

But, Cohen may argue, the $1 million was “liquidated damages” under the NDA and thus no proof of damages is required. Maybe so, but the law generally does not permit the use of fixed damage amounts in contracts if the damage amounts are considered a “penalty” rather than a substitute for having to go to the expense of proving actual damages in court. If Cohen is claiming he is the real party in interest in the NDA with Daniels and thus is entitled to damages, Most courts would likely invalidate the liquidated damages clause as a prohibited penalty because its provision has no relation to the actual damages Michael Cohen would have sustained from Daniel’s breach.

If, on the other hand, Trump is the real party in interest, the damages would belong to Trump who is not a party to the litigation claiming the NDA was violated. I cannot imagine, even in the Trumpian Universe, that a court is going to award damages to a non-party based on an agreement the non-party did not sign and about which the non-party claims to have had no knowledge.

In the end, the courts may decide. One interesting potential maneuver in the litigation would be a motion by Daniels to add Trump as a party. If that were successful, Trump would be subject to having his deposition taken under oath about the affair, the entering of the NDA and much else. Wouldn’t that be interesting?

 

 

 

 

Trump’s Lawyers Speak for … Trump, Themselves, Somebody, Nobody

Multiple sources have reported that Donald Trump’s “personal attorney” called for the Justice Department to fire Robert Mueller and terminate his investigation into, among other things, collusion between the Trump presidential campaign and Russian government interests intending to support his candidacy and damage Hillary Clinton’s chances. See, e.g., http://wapo.st/2plSJhp. The demand by John Dowd followed immediately the firing of FBI Deputy Director Andrew McCabe which, according to Dowd, was fatally influenced by political bias. Repeating claims made directly by Trump, Dowd said “I pray” that the investigation is ended.

Dowd’s “prayer” will have the same effect as the “thoughts and prayers” that are the sole national Republican response to the Parkland Florida school massacre.

Curiously, Dowd told the Daily Beast that he was speaking on behalf of the president in his capacity as Trump’s attorney. When the Daily Beast published that statement, Dowd immediately retracted it and said he was not speaking for the president.

If Dowd was truth-telling in his retraction, it means that while serving as Trump’s personal attorney, he has made public statements on his own initiative about a matter of the greatest importance to his client without his client’s knowledge or approval. If indeed Dowd were not speaking for Trump, one would expect Trump, the client whose interests are being affected, to discharge his attorney for acting without permission in a way that could damage the client. On the other hand, if Trump liked what Dowd said, he (Trump) would not fire the attorney and would align himself with the attorney’s statements. That is, in fact, what Trump did via the usual Saturday tweet storm, denying yet again that he colluded with Russians and yet again attacking federal law enforcement agencies and the State Department that he has criticized repeatedly during the campaign and after becoming president.

This dance brings to mind that other Trump attorney who claims to have acted in another matter of vital importance to Trump but without Trump’s knowledge or approval. This, of course, is Michael Cohen who has represented Trump for years and who admits he paid $130,000 to porn star Stormy Daniels to secure her agreement to remain silent about her claimed affair with Trump, an affair that Trump has denied.

So, once again, we have an attorney for Trump claiming to act on behalf of Trump without Trump’s knowledge or consent, using the attorney’s own funds and without expectation of reimbursement.

While the standards of attorney conduct have apparently loosened dramatically over recent decades, it is still considered risky for an attorney to invest in a client’s business. The potential for conflicts of interest to arise when at attorney has a financial stake in a client’s business is serious. One supposes, however, that even when it occurs, the attorney’s investment in the client’s affairs is disclosed to the client. Indeed, I believe it would be a clear ethics violation for an attorney to invest in a client’s business without disclosure to the client.

So, if I am correct, Dowd either is lying about Trump’s knowledge of the payoff to Daniels and the signing of the Nondisclosure Agreement by Dowd on Trump’s behalf or Dowd acted on Trump’s behalf without disclosing that he was, in effect, investing in Trump’s business (in this case, the business being the presidential campaign) by making the secret payment to Daniels with no expectation of repayment. Trump himself did not sign the NDA, but standing alone, that fact does not prove that he was ignorant of the arrangements. Even if it’s true that Cohen did not expect repayment (he reportedly complained to friends that Trump had stiffed him, but this is not substantiated), the payment still represents an investment that would, if successful in silencing Daniels, help get Trump elected, with longer term rewards to Dowd from his alliance with President Trump.

If there is a middle ground here, I don’t see it. We have two different attorneys acting on behalf of a client they claim was ignorant of their actions on the client’s behalf, in matters of the utmost importance to the client’s future. Perhaps someone more steeped in the nuances of attorney ethics than I can explain how such actions are not ethics violations. And, of course, if Trump did know what was being done on his behalf in either or both cases, then the lying is compounded and becomes further dishonesty and corruption on the part of the president.

Time will tell how all this shakes out. Ms. Daniels is represented by Michael Avenatti who is very measured in his public statements and, by relying on his client to speak about Trump, seems to know what he is about. Her interview with 60 Minutes is scheduled to be broadcast next Sunday and, if it happens, will shed new and dramatic light on the situation. And then there is James Comey’s book which is about to publish. Buckle your seat belts. The ride is about to get wilder.