December 5, 2025 • 41 mins
Intellectual property litigator Terence Ross, a partner at Katten Muchin Rosenman, discusses Supreme Court oral arguments in a $1 billion music piracy case. Then immigration law expert Leon Fresco, a partner at Holland & Knight, discusses Supreme Court arguments in an asylum case. And Bloomberg Supreme Court reporter Greg Stohr, discusses the Supreme Court allowing Texas to use maps that favor Republicans in the midterms. Plus, Joshua Kastenberg, a professor at the University of New Mexico Law School and a former judge and lawyer in the US Air Force, discusses the second strike on an alleged Venezuelan drug boat. June Grasso hosts.
See omnystudio.com/listener for privacy information.
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:03):
This is Bloomberg Law with June Grosso from Bloomberg Radio.
Speaker 2 (00:08):
The music industry faced off against internet providers at the
Supreme Court this week over a one billion dollar jury
verdict against Cox Communications for not shutting down the accounts
of customers who'd pirated more than ten thousand copyrighted songs
by artists like Beyonce and Justin Timberlake. The lawyers painted
(00:30):
very different bleak pictures of the consequences of a decision
against their clients. Joshua Rosenkrantz represents the internet provider Cox,
and Paul Clement represents the record companies.
Speaker 3 (00:44):
There is no short fireway for an ISP to avoid liability,
and the only way it can is to cut off
the Internet, not just for the accused infringer, but for
anyone else who happens to use the same connection. That
could be entire towns, universities, or hospitals.
Speaker 4 (01:06):
If Cox is right on the law, then Cox could
take tens of thousands of copyright notices and throw them
in the trash, and they could have its employees, say
f the DMCA.
Speaker 2 (01:16):
The issue is whether internet providers should be held responsible
for contributing to copyright infringement when they know their customers
are pirating music but don't terminate their Internet access. Several
justices appeared skeptical that Cox had done enough to stop piracy,
and questioned whether a favorable ruling would allow Internet service
(01:39):
providers to ignore clear copyright infringement by their users. Here
are Justices Sonya Sotomayor and Amy Cony Barrett.
Speaker 5 (01:48):
You did nothing and in fact, counselor your clients sort
of lais a fair attitude towards the respondents's probably what
got the jury upset?
Speaker 6 (02:02):
What incentive would you have to do anything? If you
wont if you if you win and mayre knowledge isn't enough,
Why would you bother to send out any notices in
the future.
Speaker 2 (02:12):
But Justice Samuel Alito expressed concerns about the effect on
large institutions like universities or hospitals. If an Internet service
provider is forced to cut off infringers.
Speaker 7 (02:25):
What is an ISP supposed to do with a university
account that has let's say, seventy thousand users? What is
the university supposed to do?
Speaker 2 (02:35):
My guest is intellectual property litigator Terrence Ross, a partner
at Catan Euchin Rosenmuan Terry. Will you explain the issue
here and the process of policing music piracy.
Speaker 8 (02:48):
The issue in the case involved process by which recording
companies track online sharing of musical compositions that they own.
The cop write in the process allows them to identify
the IP address and the ISP that is providing the
(03:09):
service to that IP address, and so the music company's
recording companies regularly on a daily basis, in fact, send
notices of infringement to the ISPs that are providing the
Internet service to these infringers. And there are days in
which they're sending out ten thousand notices to each individual
(03:31):
ISP service, and the recording companies finally became fed up
that the ISPs were not doing something. They wanted the
ISPs to cut off service to these identified infringers, and
the ISPs dragged their heels doing anything taking any real
concrete action to stop it. And so the recording companies
(03:53):
finally sued cos Cable Company, which is one of the
largest ISPs in the nation, alleging that they had engaged
in contributory copyright infringement.
Speaker 2 (04:06):
In its papers, COX had argued that Grandma will be
thrown off the Internet because Junior visited and illegally downloaded songs.
Did some of the justices seem to pick up on
that concern.
Speaker 8 (04:19):
There was only one justice who seemed to give some
credence that, and that was Justice the Lead of He
was the only justice who really seemed to buy into
the position by Cox that it was hesitant to kick
people off because of and then you can fill in
the blank as to what the reason is their grandmother,
their university, their hospital. In fact, the hypothetically posed at
(04:42):
oral argument in the Supreme Court was what happens when
all you can do is identify that the IP address
belongs to university? Or you going to shut down the
entire university? One of those odd hypotheticals that takes the
case the extreme. The facts are actually contrast to that,
and indeed none of the other justices seemed to buy
into that argument. The reality is that over the period
(05:06):
of time and issue, Cox had received one hundred and
sixty three thousand notices of infringement and had kicked off
of its service only thirty two customers. The policy of
compliance used by Cox was described in some detail, and
it was sub law. They fare to use the word
(05:30):
that one of the justices used to describe it they
had originally started off to say, well, if we get
three notices about a particular user, we're going to tell
them we're cutting off their service. That rose gradually over
time from being a three strikes you're out policy to
being a thirteen strikes and you're aut policy. And the
thirteen strikes reset every six months, so if you didn't
(05:52):
get to thirteen within a six month period, you went
back to zero, or if you got kicked off after
six months off, you got put back on. Also cap
the number notices that they were accepting from recording companies
at three hundred a day. And then probably the worst
fact of all in which got brought up at the
Supreme Court, if you could believe it, was the head
(06:14):
of Copyright Compliance at Cox sent out an email to
the people in charge of enforcing copyright policy in which
he said, f the DMCA. Now, the DMCA refers to
the Digital Millennium Copyright Act, which is one of the
key statutes that shoe here and which requires ISPs to
(06:37):
set up a policing mechanism against copyright infringement if they
want to claim the safe harbor that is embedded in
the Digital Millennium Copyright Act In response to that, one
of the minions for the head of compliance wrote back saying, well,
we're helping law breaking customers. And there were dozens of
emails like this amongst the compliance group of cocks that
(06:59):
just manifested a complete disdain for copyright laws, which obviously
impacted the jury because the jury below had awarded a
billion dollars in damages against cop and in the Supreme
Court argument, it was clear that outside of Justice Alito,
none of the eight other justices were buying what Cox
was trying to claim was their reason for not cutting
(07:22):
off people that you'd kick Grandma's off of the Internet.
The other eight justices just didn't buy it, and it
was a loser argument for Cox.
Speaker 2 (07:30):
So then, can you tell where most of the justices
do stand?
Speaker 8 (07:35):
That's always a tough question. In this case. I think
it's tover the most. I think outside of Justice Alito,
the other eight were just incredibly skeptical of Cox's excuses
for allowing this widespread infringement to go on. In the
record below, there's apparently one period of time at which
twenty one percent of all traffic on the Cox's Internet
(07:55):
connections twenty one percent involved copyright infringement, and the law
super low didn't go after you know, every single mom
and pop business or every single college student. It was
targeted only at distributors, not people who were downloading the
occasional song, but people who were copying music digitally and
(08:17):
distributing it on a mass scale. So there was this
enormous skepticism expressed by the justice except for Justice Alita,
that Cox really wasn't fulfilling it its obligation and needed
to do something differently now. On the other hand, there
also seemed to be some concern about the size of
(08:39):
the jury verdict and whether or not the actions of
Cocks were sufficient to constitute willful contributory infringement, which is
what set them up for much larger scale of damages
than if this had been found to be just ordinary
copyright infringement.
Speaker 2 (08:59):
So what's the and that the justices would use here?
Cox contends that under a two thousand and five Supreme
Court ruling, it can't be held liable for contributory infringement
unless it affirmatively fostered piracy or clearly intended to promote it.
The music companies say it's enough that Cox's new subscribers
(09:22):
were using its service to download songs illegally.
Speaker 8 (09:26):
The case on appeal to the Supreme Court present it
to pretty crisp issues for decision. The first issue, which
I think is where the real fight is going to be,
is whether or not contributory copyright infringement required some sort
of affirmative action by the tenant. The second question presented
for review was whether or not wilfulness required some sort
(09:51):
of knowledge of customer infringement. Now, a problem with that
second question, the wolfleness standard, is that Cox had failed
to object in the trial court to the instruction that
the judge gave to the jury about how to find wilfulness.
So after the case has finished, all the evidence has submitted,
(10:12):
and the attorneys have made their closing argument, and then
just before the jury goes into the jury room to
make a decision, the judge reads to them a series
of instructions as to what the law is. And one
of those instructions will go something like Sony Music Corporation.
Here is alleged that the contributor copyright infringement was wilful
on the part of costs. In order for you to
(10:32):
find wilfulness, you must consider the following factors. And typically
if a party doesn't believe the judge has stayed at
the law correctly to the jury, they get up and
they object, and indeed they don't even have to do
it at the time of trial. These jury instructions are
spent out to the lawyers while advance, and you file
the objection with courts saying we objected this, and give
(10:52):
the court a chance to refine it, improve it so
that there's no objection here. The Cox folks for whatever
reason to object to the wilfulness instruction, and that means
they waived any objection to wilfulness and had really no excuse.
So I just don't see question number two as being
(11:12):
resolved in any way in favor of Cox, and indeed
I suspect the court won't reach it so that we
will get no further instruction from the Supreme Court on
what constitutes wilfulness. I think the Court is focused really
on the position that Cox is arguing that contributory infringement
requires some sort of affirmative act, and that, as they
(11:34):
phrased it, they can't be a contributory infringer by providing
internet service to one of their customers.
Speaker 2 (11:42):
So then do you think that they'll send it back
to the lower court with an instruction.
Speaker 8 (11:49):
I just don't know what they're going to do here.
I have to be frank, this is one of the
more opaque oral arguments I've have listened to. Other commentators
have argued that the Court might be looking for some
sort of middle ground. Indeed, I think it was Justice
sodom Or commented at one point during the argument that
(12:11):
the Court was being forced to choose between two extreme positions,
and in particular Justice so Myior, who was very skeptical
of Cox's position but also didn't quite like the extreme
argument being made by Sony Music Corp. In the recording company,
seems really perplexed as to what to do. Genuinely perplexed.
The problem the Supreme Court faces here is that the
(12:35):
standard for contributory copyright infringement has been pretty well settled
in this court for more than a century. As early
as nineteen twelve, there was a case that involved miniograph machines.
If you remember those, they were a pre Xerox machines
way of doing sort of a mass production, mass production
(12:58):
being a couple hundred There was a case in which
a publisher sued a mimeograph company for knowingly selling mimiograph
materials to a company that it knew was engaged in
infringing copyright works by using the mimiograph machine. And the
standard was set out there and has been repeated over
(13:20):
and over since that time nineteen twelve. And the standard
is pretty simple. If you provide something that you know
is going to be used by a person to commit
copyright infringement, you've engaged in contributory infringement. And the past
cases haven't spoken in terms of needing an affirmative act,
although one could argue this did not come up with
(13:40):
the Supreme Court hearing that providing the Internet service is
an affirmative act. The Cox Company argued court that that's
not an affirmative act, but that's sort of a stretch
in order to try to get around that line cases,
the Cox Company argued that contributory infringement is really a
key into aiding and embedding liability in the context of
(14:04):
torts and criminal law, and that's a real stretch that
I think is just dead wrong. It would give the
court a way to get out of this dilemma, but
it would mean the court would have to overturn half
a dozen cases going back to nineteen twelve for over
a century and say now they're not good law anymore.
I don't see the Court doing that here.
Speaker 2 (14:23):
Do you think we'll see that Justice is coming up
with some sort of middle ground.
Speaker 8 (14:28):
So it's a shame that Justice Ginsburg is no longer
on the Court. And we've had many conversations about our
knowledge of copyright law and her ability to copy together
coalition for positions under the Copyright Act that we're actually
quite pragmatic and useful. And I just don't see anybody
either with that depth of knowledge to copyright law or
(14:49):
the ability to do that sort of log rolling on
this Court. And so I think it's going to be
a real struggle for this Court to come up with
some sort of middle ground, particularly in light of the
fact that the law here is just so set for
such a long period time and the sort of odd
cases that Cock sited to the Supreme Court, including this
recent gun distribution case sprin court to site recently where
(15:10):
the gun companies were being sued for deaths in Mexico,
and the argument was they were aiding embedding this criminal activity,
and the gun company said, well, we sold the guns
to dealers in Texas, not knowing what they were going
to do with them, and if anybody's contributed to them,
but it's not us. We had no knowledge of it,
and that case just doesn't fit here, either legally or factually.
(15:35):
And yet Cock sort of beed a lot on that.
I mean, it was almost as if there's a hey,
we cite to some case in which the second circuit,
which everybody beleeves in on the Supreme Court, that'll get
us over the humpire. It's just such a stretch that,
in fact backfires. One starts to think, well, what's wrong
with their case? That that's the best they've got.
Speaker 2 (15:55):
Yeah, gun distribution and pirated music don't seem to equate.
Thanks so much, Terry, as always, that's Terrence Fross of
Catnuchen Rosenman. Immigration courts decide about two hundred thousand asylum
applications every year, and Douglas Urgus Urlana, his wife and
child joined that pool of applicants after fleeing Il Salvador
(16:19):
in twenty twenty one. They claimed they were repeatedly threatened
by a cartel hit man in a year's long violent
vendetta against their extended family, but an immigration judge rejected
their bid for asylum, as did the Board of Immigration Appeals,
and a federal appeals court deferred to the board's decision,
(16:40):
and it appeared during oral arguments this week that the
family would not fare much better at the Supreme Court.
Several justices from across the ideological spectrum appeared to agree
that the Board's decision on whether an immigrant faces persecution
serious enough to qualify for asylum is a factual inquiry,
(17:03):
not a legal one, and so the Court of Appeal
should defer to the Immigration Board's decision. Here are liberal
Justice Elaina Kagan and conservative Justice Samuel Alito.
Speaker 6 (17:14):
And that's the legal rule. A threat can be persecution,
but only if it's menacing enough to cause actual harm. Now,
what's going to happen in this case is we're going
to have to look at all this evidence, all these facts,
and decide whether these threats were indeed that level of menacing.
And that sounds like really weighing evidence to me. That
(17:36):
sounds really factual.
Speaker 7 (17:39):
It must add up to more than ordinary harassment, mistreatment,
or suffering. You may have a set of historical facts
that are undisputed, but determining whether they add up whether
the totality of those facts satisfies that standard. Sure looks
to me like primarily a factual question.
Speaker 2 (18:01):
Joining me is immigration law expert Leon Fresco, a partner
at Hollnden Knight. Leon tell us a little about the
asylum process.
Speaker 4 (18:10):
What a person asks for asylum, they have to prove
at the end of the day, that they have what's
called a well founded fear of future persecution on the
basis of their race, religion, political origin, social group. There's
a presumption that if you have experienced what's called past persecution,
(18:31):
there's a presumption that you will then have a well
founded fear a future persecution. So what does that mean.
That means that people go into immigration court and they
explain what happened in their country that caused them to leave,
and there's cross examination and the judge can ask questions.
At the end of all of this, there's two determinations.
(18:52):
One did the person experience past persecution? And number two,
was it on the basis of one of the protected grounds.
So in this Supreme Court case, what happened was there
literally was no dispute about the credibility of the facts
raised by the foreign national. In this case, Douglas Umberto
(19:15):
Orias Oriana, who said that he fled El Salvador after
repeated threats and violence from a hitman linked to a
drug lord, and he said that the drug lord shot
his hot brothers and tracked and thread in his family.
And so since there was no dispute about the facts,
there was not a factual issue that was being raised
(19:36):
on appeal. Instead, the court said, I'm going to take
all of the facts that you've presented today as true,
and I'm going to say that they still do not
rise to the high level of this word persecution such
that we can say that you experienced past persecution such
that you would get the presumption of future persecution. So
(19:58):
now Missed Oris Oriana then says, well, how is that possible?
I would like to get review of that. And so
when it gets to the First Circuit Court of Appeals,
the First Circuit says, We're going to defer to the
Board of Immigration Appeals, which is the administrative court that
decides this issue at the end of the day. We're
(20:19):
going to defer to them and say that even though
the facts are not in dispute, we still have to
give some difference to their decision. In terms of let's
say there's a scale and you're weighing it, how many
pebbles go on one scale, how many pebbles go on
the other scale, that even that determination gets some difference,
(20:42):
that the federal courts can't just reweigh the evidence on
their ends and decide whether the facts that were undisputed
in a particular case constituted persecution such that the person
should win their asylum case.
Speaker 2 (21:00):
Courts of appeals have been split on whether federal courts
can review the Immigration Board's decision from scratch or have
to defer the board.
Speaker 4 (21:09):
The Supreme Court then has to decide, okay, what happens
in a case like this where there's not a dispute
about the actual facts, but there's a dispute about whether
the facts when you weigh them, there's quote unquote significant
enough pebbles on the scale. Does the foreign national win
or do they lose? Can we reweigh that on our
(21:31):
own or do we have to give some difference under
some standard of deferential review. And so the foreign nationals
obviously claiming there should be the Novo review, the court
should look at this and say, okay, we're the threats
here that were undisputed sufficient to say that that was
past persecution. And the government says no, no, no, the
(21:53):
standard is actually much different and that this is a
mixed question of law and fact, and so you have
to treat that with some type of deferential review. And
so you had justices like Justice Court Sis saying a
reasonable fact finder standard as opposed to the Novo review,
(22:15):
and others wanted to weigh it even more deferentially potentially
than even that, and say that basically, if there's substantial
evidence to support the determination of the lower administrative court,
that's enough. So that would be even a broader deferential standard.
And it appears as if really there's not a lot
(22:37):
of excitement in the Supreme Court for having a complete
the Novo review of this process. So the issue is
really going to be how much difference is given in
these types of cases moving forward.
Speaker 2 (22:48):
So Leon, just to clarify, everyone accepts that the facts
of the asylum claim are determined by the court below,
the Immigration Court. So the only question is how the
federal appellate court is going to weigh those facts.
Speaker 4 (23:04):
Correct So what the lower court said in this case
was yes, all these very bad and serious things happened
to you. But when we put all those pebbles on
the scale, they're not sufficiently weighty enough to actually constitute
persecution for the purposes of winning your case. And then
the question is, okay, when this gets to the federal court,
(23:26):
can they literally reweigh all of that exact evidence and say, no, no, no,
those stones do weigh enough to tip the scales in
favor of the foreign national or are they stuck with Hey,
if this is in any way defensible, we have to
keep this decision the way it is. And it seemed
like the Supreme Court did want to give more difference
(23:47):
than rather re weighing all of the facts in the case,
even if they're undisputed, to decide if they need the
legal standard of past persecution.
Speaker 2 (23:58):
If the appeals court can't reweigh what the lower court decided,
it's not much of a review, is it correct.
Speaker 4 (24:06):
I mean, it would only be a review if essentially
what happened was somebody goes into immigration court and they
say the government came in and shot me one time
in the left arm because I'm a dissident, and then
they left, and then two weeks later they shot me
in the right arm. And then three weeks later they
(24:27):
shot me in the left leg and they said, you
want this to keep going or are you going to
stop being a dissident? And then the immigration judge says, well,
that doesn't seem like sufficient persecution. You only got shot
three times. Maybe in a case like that, then the
court would say, well, there's no way a reasonable fact
finder could come to that determination that that wasn't persecution,
(24:50):
because then you'd have this sort of reasonable fact finder
deference or some other standard like that. It's not never
will we review it. So they're not saying ever, But
as opposed to a case like this, where they're saying, okay, threats,
how serious are the threats or the threats very serious?
They might say, look, this is the kind of case
that falls in the gray zone. And when you're in
(25:12):
the gray zone, the government wins.
Speaker 2 (25:15):
I'm curious, what do you think about the threats in
this case? Do you think they were serious enough for
an asylum claim?
Speaker 4 (25:22):
I think it's really in the gray zone. I think
this is the problem when they talk about sort of
bad facts make bad law, is this is the exact
type of case where one judge would definitely grant asylum
one hundred out of one hundred times, and another judge
would never grant the asylum zero out of one hundred times.
Because people just approach these cases with different levels of
(25:44):
sympathy and different levels of concern and different standards in
their mind of what constitutes persecution. It really does become
problematic in terms of the subjectiveness of the process. But
what the Supreme we are trying to figure out is
where does the subjectiveness stop. Does it stop at the
(26:04):
Court of Appeals or does it stop at the administrative level.
And it seems like they're going to stop it at
the administrative level for the most part, and not bring
in sort of a new antiseptic Court of Appeals who's
just reading a transcript without any other context than deciding
is this sufficient persecution. It didn't really seem like any
(26:26):
of the Supreme Court justices wanted to do that. The
novo I.
Speaker 2 (26:29):
Agree in these arguments. It seemed like the justices were
mostly on the same page. Thanks as always, Leon, that's
Leon Fresco of Holland and Knight and in other Supreme
Court news. On Thursday, in a six to three decision,
the Court came to the rescue of Texas Republicans allowing
(26:50):
next year's elections to be held under their newly drawn
congressional map, despite a lower court ruling that the map
likely discriminates on the basis of race. Joining me Is Bloomberg,
Supreme Court reporter Greg Store Greg what was the reasoning
of the six Conservatives for allowing Texas to use this map?
Speaker 9 (27:08):
Well, the Court gave us a little bit of its reasoning,
a little bit less than two pages on it. First
of all, they said that the district court that ruled
against Texas that said these districts are probably a racial jerymnader,
that that lower court did not quote honor the presumption
of legislative good faith. In other words, they should have
given Texas the benefit of the doubt that it was
acting constitutionally. Secondly, the Supreme Court said that normally, in
(27:31):
cases where you're challenging a racial jerymander, you have to
produce an alternative map that would accomplish whatever the state's
trying to accomplish without using race so much. And they
faulted the challengers for not doing that. And then finally,
the Court said this decision came too close to the election.
In the past, the Supreme Court has said that federal
(27:52):
courts should not change the state's election rules on the
eve of the election. And you might say, well, the
election is not for another eleven months or so, but
in this case, Texas's filing deadlines were coming up, and
the Supreme Court said, that's close enough, and that's a problem.
So the federal court shouldn't act, even if it found
the districts as it did, to be probably unconstitutional.
Speaker 2 (28:14):
All three liberals dissented, No surprise there. What was the
focus of Justice Kagan's seventeen page descent.
Speaker 9 (28:23):
She mostly focused on the process that this district court
went through to gather evidence about what was going on,
why the state drew this map, and in particular looking
at things like this letter from the Justice Department that
said that the state should eliminate these so called coalition
districts that are made up of heavily Hispanic, heavily black voters,
(28:43):
you know, with the two of them combining to be
more than fifty percent of the district. And Kagan said
the Supreme Court should have deferred to those factual findings
of the district court who spent nine days hearing evidence
about this case, and she blasted them for essentially deciding
this thing over a holiday weekend.
Speaker 2 (29:00):
And then on Friday, the Justice has announced that they'll
take up President Trump's planned rollback of automatic birthright citizenship.
Are you surprised that they took this case since it's
basically universally been accepted that the Fourteenth Amendment confers citizenship
on virtually everyone born on US soil.
Speaker 9 (29:23):
Not at all surprised because this is the kind of
thing that the Supreme Court wants to do itself and
not lead to the lower courts. So lower courts have
across the board ruled against Trump on this and said
that what he's trying to do through his executive order
is unconstitutional and also in violation of federal immigration law.
But given that these are decisions that block the federal
(29:45):
government from doing something, that's almost always something the Supreme
Court wants to do itself.
Speaker 2 (29:50):
A lot of big decisions that are going to be
coming out of the Supreme Court this term. Thanks Greg,
that's Bloomberg Supreme Court reporter Greg store.
Speaker 10 (29:59):
I saw that room was one of the most troubling
things I've seen in my time in public service. You
have two individuals in clear distress without any means of
locomotion with a destroyed vessel who were killed by the
United States.
Speaker 2 (30:18):
Congressman Jim Hines, the top Democrat on the House Intelligence Committee,
described his reaction to video footage of the second attack
that killed two survivors after an initial strike on an
alleged drug smuggling boat in international waters near Venezuela on
September two. Lawmakers and military legal experts have questioned whether
(30:41):
the attack on survivors was a war crime, because international
law prohibits killing enemy combatants who no longer pose a threat.
Navy Admiral Frank Bradley, who oversaw the strikes, briefed lawmakers
on Thursday in closed door sessions and confirmed that there
had not been a kill them all order as reported.
(31:05):
After the briefing, Republican Senator Tom Cotton, chairman of the
Senate Intelligence Committee, said he believes the men did still
pose a threat after the first strike.
Speaker 7 (31:16):
I saw two survivors trying to flip a boat loaded
with drugs down the United States back over so they
could stay in the fight.
Speaker 2 (31:26):
Joining me is Professor Joshua Castenberg of the University of
New Mexico Law School. He was a military judge and
lawyer in the US Air Force, Josh Democratic Senator Chris
Van Holland said the second strike was an extra judicial killing,
amounting to murder or a war crime. What's your analysis
(31:46):
of the second strike?
Speaker 1 (31:48):
So my take on the second strike is partly colored
by the fact that the administration has this changing narrative constantly,
and the latest narrative that they come up with is
implaus that somehow these men were going to climb back
on the vessel and continue on in their cocaine run.
So having said that, look, you know, the United States
(32:09):
has convened grand juries for murder on the high seas
going back to the War of eighteen twelve, and there's
a federal statute prohibiting precisely what occurred, you know, murder
on the high seas. Now, of course, Trump himself is
immune from any criminal liability thanks to the Supreme Court's decision,
(32:30):
you know, Trump versus United States. But it seems to
mean that nobody else is immune from that kind of
a charge. On the other hand, who's going to pursue it.
I don't think the Attorney General of the United States
is going to differ from the White House's version of
events or their own legal reasoning.
Speaker 2 (32:49):
Defense Secretary Pete Hegsith said he left the room after
the first strike. Who's responsible the Navy admiral who ordered
the second strike or the Defense secretary who reportedly approved
the overall operation.
Speaker 1 (33:05):
Well they all are. And I'm chuckling in a sad
kind of way about that claim of Secretary of Defense
or secretary of war he seths because at the end
of the day, it really doesn't matter in this regard.
You know, coming out of World War One, if not
the Civil War, the United States embraced the doctrine of
(33:26):
command responsibility, and we particularly saw that play out in
World War Two at the Nuremberg and International Tribunal for
War Crimes in Tokyo. Those trials, and even in US
law when the Army under General MacArthur prosecuted generally Yamashta,
nobody ever alleged that he was the trigger puller or
(33:47):
gave an order for his troops to massacre thousands of
innocent Filipinos. As the United States liberated the island, they
prosecuted and for failing to control as troops and for
creating the environment where it would be made possible. The
only thing in a real rule of law setting that
would save hegsath Is if he preferred uc him J
(34:09):
charges against the individual who gave the order. But I
don't think that's going to happen. I think they're all
banking on protection from Republican allies in the House and
Senate and then ultimately presidential pardons which have now been
given to Honduran drug dealers.
Speaker 2 (34:25):
What about the legality of the broader military campaign which
is ongoing. After the briefings on Thursday, the military announced
that he had struck another boat, killing four people. That
brings the death toll to at least eighty seven people.
Speaker 1 (34:41):
So we are not at war with Venezuela, and the
idea that United States domestic law can reach into Venezuelan
waters has no basis. However, and this is a big caveat.
Under international maritime law, any nation can stop action such
(35:03):
as piracy or other high crimes that occur on the sea.
In order to do that, you have to have absolute
correct intelligence that a crime such as international drug trafficking
is occurring, and there has to be some sort of
agreement among nations that that is occurring. And on top
(35:25):
of that, you have to be able to show that
what you're doing is consistent proportionality wise to the crime involved.
And the problem with that proportionality aspect is that the
United States Coast Guard, which most often does not use
that kind of lethal force, does an excellent job of
(35:47):
stopping kilo upon kilo upon kilo of cocaine coming into
the United States. They don't catch at all. So you know,
the argument that this is lawful is sort of the
realism of law into the alice in wonderland of law.
Speaker 2 (36:05):
Let's turn now to the video released last month by
six Democratic members of Congress directly addressing active duty military
and intelligence personnel.
Speaker 1 (36:18):
Right now, the threats to our constitution aren't just coming
from a miroad, but from right here at home.
Speaker 4 (36:23):
Our laws are clear. You can refuse illegal orders. You
can refuse illegal orders.
Speaker 3 (36:29):
You must refuse illegal orders.
Speaker 2 (36:31):
No one has to carry out orders that violate the
law or our constitution.
Speaker 10 (36:35):
We know this is hard and that it's a difficult
time to be a public.
Speaker 4 (36:38):
Servant, but whether you're serving in the CIA.
Speaker 1 (36:40):
The Army, or Navy Air Force.
Speaker 4 (36:43):
Your vigilance is critical and know that we have your back.
Speaker 2 (36:47):
All six who have military or intelligence backgrounds, we're just
telling service members and intelligence officers what the law is.
Yet President Trump has called them tray and said they
were engaging in seditious behavior punishable by death.
Speaker 1 (37:05):
Well, first of all, all the members of the House
and Senate who made that video said was you have
a duty to obey the law, and that includes a
duty to disobey on lawful orders. That's a correct statement
of the law. And I don't think that any investigation
into those members should ever come up as a result
(37:28):
of them making a correct statement of the law. I
think that that concern is real based on this bellicosity
that's come out of the White House, and that bellicosity
includes the use of the federalized National Guard in our cities.
Speaker 2 (37:46):
According to Bloomberg's sources, FBI headquarters is pressuring the bureau's
domestic terrorism agents to open a seditious conspiracy investigation into
those six democratic laws.
Speaker 1 (38:01):
Yeah. You know, I was asked the other day if
there is precedent for this, or precedent for a military investigation,
and to Senator Mark Kelly, and I said, no, there
is not, not in the United States. There is precedent
for it elsewhere. One of the things that the framers
(38:21):
of our constitution and all their genius wanted to do
was to create a government that was responsible to the
people through the legislative branch. And the last time something
like this happened wasn't in the United States. It was
before the United States was created. It was Oliver Cromwell
(38:42):
using his new model army to pressure Parliament to take
votes the way that he wanted them to take votes,
including the execution of Charles the First. We built a
constitution to prevent the very thing that apparently the FBI's
leaderships to now think is plausible seditious conspiracy. Look to me,
(39:06):
if there's a high crime or misdemeanor, it's the attempt
to cower members of Congress from exercising their free speech rights.
It's not the exercise of those free speech rights themselves.
Speaker 2 (39:19):
The Civil War era seditious conspiracy law requires prosecutors to
prove a defendant conspired to use force to oppose US
government authority or to prevent, hinder, or delay the execution
of any US law. Is it sort of absurd to
claim under that statute that this was in any way
(39:43):
seditious conspiracy?
Speaker 1 (39:45):
Again, I go back to my Alice in Wonderland quote. Yes,
in the rule of law. It certainly is that you
need to go back to the Civil War, and you
can look at members of Congress, slaveholder like Benjamin Gwynn
Harris from Maryland, who actually gave a prayer on the
floor of Congress for a Southern victory, or a pacifist
(40:06):
like Alexander Long who gave anti war speeches, and at
no time were those two sitting members of Congress investigated
or prosecuted. You know, every time you and I speak
about the administration, I say they pushed the envelope. But
on this particular case, this truly is. It's beyond absurd.
(40:28):
It's truly an affront to the Constitution, the separation of powers,
and the ability of members of Congress to represent their
constituents on the very fundamental positions that a majority of
their constituents elected them to do. Again, it goes back
to the pre revolutionary days, the mentality of Cromwell and
(40:49):
the rule of the major generals and the dictatorship of
the mid sixteen hundreds in Britain, the very thing we
had a revolution against.
Speaker 2 (40:56):
You know, your history. Just that's certain. Thanks for joining me.
That's Professor Joshua Kastenberg of the University of New Mexico
Law School. And that's it for this edition of The
Bloomberg Law Show. Remember you can always get the latest
legal news on our Bloomberg Law podcasts. You can find
them on Apple Podcasts, Spotify, and at www dot Bloomberg
(41:19):
dot com slash podcast Slash Law, And remember to tune
into The Bloomberg Law Show every weeknight at ten pm
Wall Street Time. I'm June Grosso and you're listening to
Bloomberg
This is Bloomberg Law with June Grosso from Bloomberg Radio.
Speaker 2 (00:08):
The music industry faced off against internet providers at the
Supreme Court this week over a one billion dollar jury
verdict against Cox Communications for not shutting down the accounts
of customers who'd pirated more than ten thousand copyrighted songs
by artists like Beyonce and Justin Timberlake. The lawyers painted
(00:30):
very different bleak pictures of the consequences of a decision
against their clients. Joshua Rosenkrantz represents the internet provider Cox,
and Paul Clement represents the record companies.
Speaker 3 (00:44):
There is no short fireway for an ISP to avoid liability,
and the only way it can is to cut off
the Internet, not just for the accused infringer, but for
anyone else who happens to use the same connection. That
could be entire towns, universities, or hospitals.
Speaker 4 (01:06):
If Cox is right on the law, then Cox could
take tens of thousands of copyright notices and throw them
in the trash, and they could have its employees, say
f the DMCA.
Speaker 2 (01:16):
The issue is whether internet providers should be held responsible
for contributing to copyright infringement when they know their customers
are pirating music but don't terminate their Internet access. Several
justices appeared skeptical that Cox had done enough to stop piracy,
and questioned whether a favorable ruling would allow Internet service
(01:39):
providers to ignore clear copyright infringement by their users. Here
are Justices Sonya Sotomayor and Amy Cony Barrett.
Speaker 5 (01:48):
You did nothing and in fact, counselor your clients sort
of lais a fair attitude towards the respondents's probably what
got the jury upset?
Speaker 6 (02:02):
What incentive would you have to do anything? If you
wont if you if you win and mayre knowledge isn't enough,
Why would you bother to send out any notices in
the future.
Speaker 2 (02:12):
But Justice Samuel Alito expressed concerns about the effect on
large institutions like universities or hospitals. If an Internet service
provider is forced to cut off infringers.
Speaker 7 (02:25):
What is an ISP supposed to do with a university
account that has let's say, seventy thousand users? What is
the university supposed to do?
Speaker 2 (02:35):
My guest is intellectual property litigator Terrence Ross, a partner
at Catan Euchin Rosenmuan Terry. Will you explain the issue
here and the process of policing music piracy.
Speaker 8 (02:48):
The issue in the case involved process by which recording
companies track online sharing of musical compositions that they own.
The cop write in the process allows them to identify
the IP address and the ISP that is providing the
(03:09):
service to that IP address, and so the music company's
recording companies regularly on a daily basis, in fact, send
notices of infringement to the ISPs that are providing the
Internet service to these infringers. And there are days in
which they're sending out ten thousand notices to each individual
(03:31):
ISP service, and the recording companies finally became fed up
that the ISPs were not doing something. They wanted the
ISPs to cut off service to these identified infringers, and
the ISPs dragged their heels doing anything taking any real
concrete action to stop it. And so the recording companies
(03:53):
finally sued cos Cable Company, which is one of the
largest ISPs in the nation, alleging that they had engaged
in contributory copyright infringement.
Speaker 2 (04:06):
In its papers, COX had argued that Grandma will be
thrown off the Internet because Junior visited and illegally downloaded songs.
Did some of the justices seem to pick up on
that concern.
Speaker 8 (04:19):
There was only one justice who seemed to give some
credence that, and that was Justice the Lead of He
was the only justice who really seemed to buy into
the position by Cox that it was hesitant to kick
people off because of and then you can fill in
the blank as to what the reason is their grandmother,
their university, their hospital. In fact, the hypothetically posed at
(04:42):
oral argument in the Supreme Court was what happens when
all you can do is identify that the IP address
belongs to university? Or you going to shut down the
entire university? One of those odd hypotheticals that takes the
case the extreme. The facts are actually contrast to that,
and indeed none of the other justices seemed to buy
into that argument. The reality is that over the period
(05:06):
of time and issue, Cox had received one hundred and
sixty three thousand notices of infringement and had kicked off
of its service only thirty two customers. The policy of
compliance used by Cox was described in some detail, and
it was sub law. They fare to use the word
(05:30):
that one of the justices used to describe it they
had originally started off to say, well, if we get
three notices about a particular user, we're going to tell
them we're cutting off their service. That rose gradually over
time from being a three strikes you're out policy to
being a thirteen strikes and you're aut policy. And the
thirteen strikes reset every six months, so if you didn't
(05:52):
get to thirteen within a six month period, you went
back to zero, or if you got kicked off after
six months off, you got put back on. Also cap
the number notices that they were accepting from recording companies
at three hundred a day. And then probably the worst
fact of all in which got brought up at the
Supreme Court, if you could believe it, was the head
(06:14):
of Copyright Compliance at Cox sent out an email to
the people in charge of enforcing copyright policy in which
he said, f the DMCA. Now, the DMCA refers to
the Digital Millennium Copyright Act, which is one of the
key statutes that shoe here and which requires ISPs to
(06:37):
set up a policing mechanism against copyright infringement if they
want to claim the safe harbor that is embedded in
the Digital Millennium Copyright Act In response to that, one
of the minions for the head of compliance wrote back saying, well,
we're helping law breaking customers. And there were dozens of
emails like this amongst the compliance group of cocks that
(06:59):
just manifested a complete disdain for copyright laws, which obviously
impacted the jury because the jury below had awarded a
billion dollars in damages against cop and in the Supreme
Court argument, it was clear that outside of Justice Alito,
none of the eight other justices were buying what Cox
was trying to claim was their reason for not cutting
(07:22):
off people that you'd kick Grandma's off of the Internet.
The other eight justices just didn't buy it, and it
was a loser argument for Cox.
Speaker 2 (07:30):
So then, can you tell where most of the justices
do stand?
Speaker 8 (07:35):
That's always a tough question. In this case. I think
it's tover the most. I think outside of Justice Alito,
the other eight were just incredibly skeptical of Cox's excuses
for allowing this widespread infringement to go on. In the
record below, there's apparently one period of time at which
twenty one percent of all traffic on the Cox's Internet
(07:55):
connections twenty one percent involved copyright infringement, and the law
super low didn't go after you know, every single mom
and pop business or every single college student. It was
targeted only at distributors, not people who were downloading the
occasional song, but people who were copying music digitally and
(08:17):
distributing it on a mass scale. So there was this
enormous skepticism expressed by the justice except for Justice Alita,
that Cox really wasn't fulfilling it its obligation and needed
to do something differently now. On the other hand, there
also seemed to be some concern about the size of
(08:39):
the jury verdict and whether or not the actions of
Cocks were sufficient to constitute willful contributory infringement, which is
what set them up for much larger scale of damages
than if this had been found to be just ordinary
copyright infringement.
Speaker 2 (08:59):
So what's the and that the justices would use here?
Cox contends that under a two thousand and five Supreme
Court ruling, it can't be held liable for contributory infringement
unless it affirmatively fostered piracy or clearly intended to promote it.
The music companies say it's enough that Cox's new subscribers
(09:22):
were using its service to download songs illegally.
Speaker 8 (09:26):
The case on appeal to the Supreme Court present it
to pretty crisp issues for decision. The first issue, which
I think is where the real fight is going to be,
is whether or not contributory copyright infringement required some sort
of affirmative action by the tenant. The second question presented
for review was whether or not wilfulness required some sort
(09:51):
of knowledge of customer infringement. Now, a problem with that
second question, the wolfleness standard, is that Cox had failed
to object in the trial court to the instruction that
the judge gave to the jury about how to find wilfulness.
So after the case has finished, all the evidence has submitted,
(10:12):
and the attorneys have made their closing argument, and then
just before the jury goes into the jury room to
make a decision, the judge reads to them a series
of instructions as to what the law is. And one
of those instructions will go something like Sony Music Corporation.
Here is alleged that the contributor copyright infringement was wilful
on the part of costs. In order for you to
(10:32):
find wilfulness, you must consider the following factors. And typically
if a party doesn't believe the judge has stayed at
the law correctly to the jury, they get up and
they object, and indeed they don't even have to do
it at the time of trial. These jury instructions are
spent out to the lawyers while advance, and you file
the objection with courts saying we objected this, and give
(10:52):
the court a chance to refine it, improve it so
that there's no objection here. The Cox folks for whatever
reason to object to the wilfulness instruction, and that means
they waived any objection to wilfulness and had really no excuse.
So I just don't see question number two as being
(11:12):
resolved in any way in favor of Cox, and indeed
I suspect the court won't reach it so that we
will get no further instruction from the Supreme Court on
what constitutes wilfulness. I think the Court is focused really
on the position that Cox is arguing that contributory infringement
requires some sort of affirmative act, and that, as they
(11:34):
phrased it, they can't be a contributory infringer by providing
internet service to one of their customers.
Speaker 2 (11:42):
So then do you think that they'll send it back
to the lower court with an instruction.
Speaker 8 (11:49):
I just don't know what they're going to do here.
I have to be frank, this is one of the
more opaque oral arguments I've have listened to. Other commentators
have argued that the Court might be looking for some
sort of middle ground. Indeed, I think it was Justice
sodom Or commented at one point during the argument that
(12:11):
the Court was being forced to choose between two extreme positions,
and in particular Justice so Myior, who was very skeptical
of Cox's position but also didn't quite like the extreme
argument being made by Sony Music Corp. In the recording company,
seems really perplexed as to what to do. Genuinely perplexed.
The problem the Supreme Court faces here is that the
(12:35):
standard for contributory copyright infringement has been pretty well settled
in this court for more than a century. As early
as nineteen twelve, there was a case that involved miniograph machines.
If you remember those, they were a pre Xerox machines
way of doing sort of a mass production, mass production
(12:58):
being a couple hundred There was a case in which
a publisher sued a mimeograph company for knowingly selling mimiograph
materials to a company that it knew was engaged in
infringing copyright works by using the mimiograph machine. And the
standard was set out there and has been repeated over
(13:20):
and over since that time nineteen twelve. And the standard
is pretty simple. If you provide something that you know
is going to be used by a person to commit
copyright infringement, you've engaged in contributory infringement. And the past
cases haven't spoken in terms of needing an affirmative act,
although one could argue this did not come up with
(13:40):
the Supreme Court hearing that providing the Internet service is
an affirmative act. The Cox Company argued court that that's
not an affirmative act, but that's sort of a stretch
in order to try to get around that line cases,
the Cox Company argued that contributory infringement is really a
key into aiding and embedding liability in the context of
(14:04):
torts and criminal law, and that's a real stretch that
I think is just dead wrong. It would give the
court a way to get out of this dilemma, but
it would mean the court would have to overturn half
a dozen cases going back to nineteen twelve for over
a century and say now they're not good law anymore.
I don't see the Court doing that here.
Speaker 2 (14:23):
Do you think we'll see that Justice is coming up
with some sort of middle ground.
Speaker 8 (14:28):
So it's a shame that Justice Ginsburg is no longer
on the Court. And we've had many conversations about our
knowledge of copyright law and her ability to copy together
coalition for positions under the Copyright Act that we're actually
quite pragmatic and useful. And I just don't see anybody
either with that depth of knowledge to copyright law or
(14:49):
the ability to do that sort of log rolling on
this Court. And so I think it's going to be
a real struggle for this Court to come up with
some sort of middle ground, particularly in light of the
fact that the law here is just so set for
such a long period time and the sort of odd
cases that Cock sited to the Supreme Court, including this
recent gun distribution case sprin court to site recently where
(15:10):
the gun companies were being sued for deaths in Mexico,
and the argument was they were aiding embedding this criminal activity,
and the gun company said, well, we sold the guns
to dealers in Texas, not knowing what they were going
to do with them, and if anybody's contributed to them,
but it's not us. We had no knowledge of it,
and that case just doesn't fit here, either legally or factually.
(15:35):
And yet Cock sort of beed a lot on that.
I mean, it was almost as if there's a hey,
we cite to some case in which the second circuit,
which everybody beleeves in on the Supreme Court, that'll get
us over the humpire. It's just such a stretch that,
in fact backfires. One starts to think, well, what's wrong
with their case? That that's the best they've got.
Speaker 2 (15:55):
Yeah, gun distribution and pirated music don't seem to equate.
Thanks so much, Terry, as always, that's Terrence Fross of
Catnuchen Rosenman. Immigration courts decide about two hundred thousand asylum
applications every year, and Douglas Urgus Urlana, his wife and
child joined that pool of applicants after fleeing Il Salvador
(16:19):
in twenty twenty one. They claimed they were repeatedly threatened
by a cartel hit man in a year's long violent
vendetta against their extended family, but an immigration judge rejected
their bid for asylum, as did the Board of Immigration Appeals,
and a federal appeals court deferred to the board's decision,
(16:40):
and it appeared during oral arguments this week that the
family would not fare much better at the Supreme Court.
Several justices from across the ideological spectrum appeared to agree
that the Board's decision on whether an immigrant faces persecution
serious enough to qualify for asylum is a factual inquiry,
(17:03):
not a legal one, and so the Court of Appeal
should defer to the Immigration Board's decision. Here are liberal
Justice Elaina Kagan and conservative Justice Samuel Alito.
Speaker 6 (17:14):
And that's the legal rule. A threat can be persecution,
but only if it's menacing enough to cause actual harm. Now,
what's going to happen in this case is we're going
to have to look at all this evidence, all these facts,
and decide whether these threats were indeed that level of menacing.
And that sounds like really weighing evidence to me. That
(17:36):
sounds really factual.
Speaker 7 (17:39):
It must add up to more than ordinary harassment, mistreatment,
or suffering. You may have a set of historical facts
that are undisputed, but determining whether they add up whether
the totality of those facts satisfies that standard. Sure looks
to me like primarily a factual question.
Speaker 2 (18:01):
Joining me is immigration law expert Leon Fresco, a partner
at Hollnden Knight. Leon tell us a little about the
asylum process.
Speaker 4 (18:10):
What a person asks for asylum, they have to prove
at the end of the day, that they have what's
called a well founded fear of future persecution on the
basis of their race, religion, political origin, social group. There's
a presumption that if you have experienced what's called past persecution,
(18:31):
there's a presumption that you will then have a well
founded fear a future persecution. So what does that mean.
That means that people go into immigration court and they
explain what happened in their country that caused them to leave,
and there's cross examination and the judge can ask questions.
At the end of all of this, there's two determinations.
(18:52):
One did the person experience past persecution? And number two,
was it on the basis of one of the protected grounds.
So in this Supreme Court case, what happened was there
literally was no dispute about the credibility of the facts
raised by the foreign national. In this case, Douglas Umberto
(19:15):
Orias Oriana, who said that he fled El Salvador after
repeated threats and violence from a hitman linked to a
drug lord, and he said that the drug lord shot
his hot brothers and tracked and thread in his family.
And so since there was no dispute about the facts,
there was not a factual issue that was being raised
(19:36):
on appeal. Instead, the court said, I'm going to take
all of the facts that you've presented today as true,
and I'm going to say that they still do not
rise to the high level of this word persecution such
that we can say that you experienced past persecution such
that you would get the presumption of future persecution. So
(19:58):
now Missed Oris Oriana then says, well, how is that possible?
I would like to get review of that. And so
when it gets to the First Circuit Court of Appeals,
the First Circuit says, We're going to defer to the
Board of Immigration Appeals, which is the administrative court that
decides this issue at the end of the day. We're
(20:19):
going to defer to them and say that even though
the facts are not in dispute, we still have to
give some difference to their decision. In terms of let's
say there's a scale and you're weighing it, how many
pebbles go on one scale, how many pebbles go on
the other scale, that even that determination gets some difference,
(20:42):
that the federal courts can't just reweigh the evidence on
their ends and decide whether the facts that were undisputed
in a particular case constituted persecution such that the person
should win their asylum case.
Speaker 2 (21:00):
Courts of appeals have been split on whether federal courts
can review the Immigration Board's decision from scratch or have
to defer the board.
Speaker 4 (21:09):
The Supreme Court then has to decide, okay, what happens
in a case like this where there's not a dispute
about the actual facts, but there's a dispute about whether
the facts when you weigh them, there's quote unquote significant
enough pebbles on the scale. Does the foreign national win
or do they lose? Can we reweigh that on our
(21:31):
own or do we have to give some difference under
some standard of deferential review. And so the foreign nationals
obviously claiming there should be the Novo review, the court
should look at this and say, okay, we're the threats
here that were undisputed sufficient to say that that was
past persecution. And the government says no, no, no, the
(21:53):
standard is actually much different and that this is a
mixed question of law and fact, and so you have
to treat that with some type of deferential review. And
so you had justices like Justice Court Sis saying a
reasonable fact finder standard as opposed to the Novo review,
(22:15):
and others wanted to weigh it even more deferentially potentially
than even that, and say that basically, if there's substantial
evidence to support the determination of the lower administrative court,
that's enough. So that would be even a broader deferential standard.
And it appears as if really there's not a lot
(22:37):
of excitement in the Supreme Court for having a complete
the Novo review of this process. So the issue is
really going to be how much difference is given in
these types of cases moving forward.
Speaker 2 (22:48):
So Leon, just to clarify, everyone accepts that the facts
of the asylum claim are determined by the court below,
the Immigration Court. So the only question is how the
federal appellate court is going to weigh those facts.
Speaker 4 (23:04):
Correct So what the lower court said in this case
was yes, all these very bad and serious things happened
to you. But when we put all those pebbles on
the scale, they're not sufficiently weighty enough to actually constitute
persecution for the purposes of winning your case. And then
the question is, okay, when this gets to the federal court,
(23:26):
can they literally reweigh all of that exact evidence and say, no, no, no,
those stones do weigh enough to tip the scales in
favor of the foreign national or are they stuck with Hey,
if this is in any way defensible, we have to
keep this decision the way it is. And it seemed
like the Supreme Court did want to give more difference
(23:47):
than rather re weighing all of the facts in the case,
even if they're undisputed, to decide if they need the
legal standard of past persecution.
Speaker 2 (23:58):
If the appeals court can't reweigh what the lower court decided,
it's not much of a review, is it correct.
Speaker 4 (24:06):
I mean, it would only be a review if essentially
what happened was somebody goes into immigration court and they
say the government came in and shot me one time
in the left arm because I'm a dissident, and then
they left, and then two weeks later they shot me
in the right arm. And then three weeks later they
(24:27):
shot me in the left leg and they said, you
want this to keep going or are you going to
stop being a dissident? And then the immigration judge says, well,
that doesn't seem like sufficient persecution. You only got shot
three times. Maybe in a case like that, then the
court would say, well, there's no way a reasonable fact
finder could come to that determination that that wasn't persecution,
(24:50):
because then you'd have this sort of reasonable fact finder
deference or some other standard like that. It's not never
will we review it. So they're not saying ever, But
as opposed to a case like this, where they're saying, okay, threats,
how serious are the threats or the threats very serious?
They might say, look, this is the kind of case
that falls in the gray zone. And when you're in
(25:12):
the gray zone, the government wins.
Speaker 2 (25:15):
I'm curious, what do you think about the threats in
this case? Do you think they were serious enough for
an asylum claim?
Speaker 4 (25:22):
I think it's really in the gray zone. I think
this is the problem when they talk about sort of
bad facts make bad law, is this is the exact
type of case where one judge would definitely grant asylum
one hundred out of one hundred times, and another judge
would never grant the asylum zero out of one hundred times.
Because people just approach these cases with different levels of
(25:44):
sympathy and different levels of concern and different standards in
their mind of what constitutes persecution. It really does become
problematic in terms of the subjectiveness of the process. But
what the Supreme we are trying to figure out is
where does the subjectiveness stop. Does it stop at the
(26:04):
Court of Appeals or does it stop at the administrative level.
And it seems like they're going to stop it at
the administrative level for the most part, and not bring
in sort of a new antiseptic Court of Appeals who's
just reading a transcript without any other context than deciding
is this sufficient persecution. It didn't really seem like any
(26:26):
of the Supreme Court justices wanted to do that. The
novo I.
Speaker 2 (26:29):
Agree in these arguments. It seemed like the justices were
mostly on the same page. Thanks as always, Leon, that's
Leon Fresco of Holland and Knight and in other Supreme
Court news. On Thursday, in a six to three decision,
the Court came to the rescue of Texas Republicans allowing
(26:50):
next year's elections to be held under their newly drawn
congressional map, despite a lower court ruling that the map
likely discriminates on the basis of race. Joining me Is Bloomberg,
Supreme Court reporter Greg Store Greg what was the reasoning
of the six Conservatives for allowing Texas to use this map?
Speaker 9 (27:08):
Well, the Court gave us a little bit of its reasoning,
a little bit less than two pages on it. First
of all, they said that the district court that ruled
against Texas that said these districts are probably a racial jerymnader,
that that lower court did not quote honor the presumption
of legislative good faith. In other words, they should have
given Texas the benefit of the doubt that it was
acting constitutionally. Secondly, the Supreme Court said that normally, in
(27:31):
cases where you're challenging a racial jerymander, you have to
produce an alternative map that would accomplish whatever the state's
trying to accomplish without using race so much. And they
faulted the challengers for not doing that. And then finally,
the Court said this decision came too close to the election.
In the past, the Supreme Court has said that federal
(27:52):
courts should not change the state's election rules on the
eve of the election. And you might say, well, the
election is not for another eleven months or so, but
in this case, Texas's filing deadlines were coming up, and
the Supreme Court said, that's close enough, and that's a problem.
So the federal court shouldn't act, even if it found
the districts as it did, to be probably unconstitutional.
Speaker 2 (28:14):
All three liberals dissented, No surprise there. What was the
focus of Justice Kagan's seventeen page descent.
Speaker 9 (28:23):
She mostly focused on the process that this district court
went through to gather evidence about what was going on,
why the state drew this map, and in particular looking
at things like this letter from the Justice Department that
said that the state should eliminate these so called coalition
districts that are made up of heavily Hispanic, heavily black voters,
(28:43):
you know, with the two of them combining to be
more than fifty percent of the district. And Kagan said
the Supreme Court should have deferred to those factual findings
of the district court who spent nine days hearing evidence
about this case, and she blasted them for essentially deciding
this thing over a holiday weekend.
Speaker 2 (29:00):
And then on Friday, the Justice has announced that they'll
take up President Trump's planned rollback of automatic birthright citizenship.
Are you surprised that they took this case since it's
basically universally been accepted that the Fourteenth Amendment confers citizenship
on virtually everyone born on US soil.
Speaker 9 (29:23):
Not at all surprised because this is the kind of
thing that the Supreme Court wants to do itself and
not lead to the lower courts. So lower courts have
across the board ruled against Trump on this and said
that what he's trying to do through his executive order
is unconstitutional and also in violation of federal immigration law.
But given that these are decisions that block the federal
(29:45):
government from doing something, that's almost always something the Supreme
Court wants to do itself.
Speaker 2 (29:50):
A lot of big decisions that are going to be
coming out of the Supreme Court this term. Thanks Greg,
that's Bloomberg Supreme Court reporter Greg store.
Speaker 10 (29:59):
I saw that room was one of the most troubling
things I've seen in my time in public service. You
have two individuals in clear distress without any means of
locomotion with a destroyed vessel who were killed by the
United States.
Speaker 2 (30:18):
Congressman Jim Hines, the top Democrat on the House Intelligence Committee,
described his reaction to video footage of the second attack
that killed two survivors after an initial strike on an
alleged drug smuggling boat in international waters near Venezuela on
September two. Lawmakers and military legal experts have questioned whether
(30:41):
the attack on survivors was a war crime, because international
law prohibits killing enemy combatants who no longer pose a threat.
Navy Admiral Frank Bradley, who oversaw the strikes, briefed lawmakers
on Thursday in closed door sessions and confirmed that there
had not been a kill them all order as reported.
(31:05):
After the briefing, Republican Senator Tom Cotton, chairman of the
Senate Intelligence Committee, said he believes the men did still
pose a threat after the first strike.
Speaker 7 (31:16):
I saw two survivors trying to flip a boat loaded
with drugs down the United States back over so they
could stay in the fight.
Speaker 2 (31:26):
Joining me is Professor Joshua Castenberg of the University of
New Mexico Law School. He was a military judge and
lawyer in the US Air Force, Josh Democratic Senator Chris
Van Holland said the second strike was an extra judicial killing,
amounting to murder or a war crime. What's your analysis
(31:46):
of the second strike?
Speaker 1 (31:48):
So my take on the second strike is partly colored
by the fact that the administration has this changing narrative constantly,
and the latest narrative that they come up with is
implaus that somehow these men were going to climb back
on the vessel and continue on in their cocaine run.
So having said that, look, you know, the United States
(32:09):
has convened grand juries for murder on the high seas
going back to the War of eighteen twelve, and there's
a federal statute prohibiting precisely what occurred, you know, murder
on the high seas. Now, of course, Trump himself is
immune from any criminal liability thanks to the Supreme Court's decision,
(32:30):
you know, Trump versus United States. But it seems to
mean that nobody else is immune from that kind of
a charge. On the other hand, who's going to pursue it.
I don't think the Attorney General of the United States
is going to differ from the White House's version of
events or their own legal reasoning.
Speaker 2 (32:49):
Defense Secretary Pete Hegsith said he left the room after
the first strike. Who's responsible the Navy admiral who ordered
the second strike or the Defense secretary who reportedly approved
the overall operation.
Speaker 1 (33:05):
Well they all are. And I'm chuckling in a sad
kind of way about that claim of Secretary of Defense
or secretary of war he seths because at the end
of the day, it really doesn't matter in this regard.
You know, coming out of World War One, if not
the Civil War, the United States embraced the doctrine of
(33:26):
command responsibility, and we particularly saw that play out in
World War Two at the Nuremberg and International Tribunal for
War Crimes in Tokyo. Those trials, and even in US
law when the Army under General MacArthur prosecuted generally Yamashta,
nobody ever alleged that he was the trigger puller or
(33:47):
gave an order for his troops to massacre thousands of
innocent Filipinos. As the United States liberated the island, they
prosecuted and for failing to control as troops and for
creating the environment where it would be made possible. The
only thing in a real rule of law setting that
would save hegsath Is if he preferred uc him J
(34:09):
charges against the individual who gave the order. But I
don't think that's going to happen. I think they're all
banking on protection from Republican allies in the House and
Senate and then ultimately presidential pardons which have now been
given to Honduran drug dealers.
Speaker 2 (34:25):
What about the legality of the broader military campaign which
is ongoing. After the briefings on Thursday, the military announced
that he had struck another boat, killing four people. That
brings the death toll to at least eighty seven people.
Speaker 1 (34:41):
So we are not at war with Venezuela, and the
idea that United States domestic law can reach into Venezuelan
waters has no basis. However, and this is a big caveat.
Under international maritime law, any nation can stop action such
(35:03):
as piracy or other high crimes that occur on the sea.
In order to do that, you have to have absolute
correct intelligence that a crime such as international drug trafficking
is occurring, and there has to be some sort of
agreement among nations that that is occurring. And on top
(35:25):
of that, you have to be able to show that
what you're doing is consistent proportionality wise to the crime involved.
And the problem with that proportionality aspect is that the
United States Coast Guard, which most often does not use
that kind of lethal force, does an excellent job of
(35:47):
stopping kilo upon kilo upon kilo of cocaine coming into
the United States. They don't catch at all. So you know,
the argument that this is lawful is sort of the
realism of law into the alice in wonderland of law.
Speaker 2 (36:05):
Let's turn now to the video released last month by
six Democratic members of Congress directly addressing active duty military
and intelligence personnel.
Speaker 1 (36:18):
Right now, the threats to our constitution aren't just coming
from a miroad, but from right here at home.
Speaker 4 (36:23):
Our laws are clear. You can refuse illegal orders. You
can refuse illegal orders.
Speaker 3 (36:29):
You must refuse illegal orders.
Speaker 2 (36:31):
No one has to carry out orders that violate the
law or our constitution.
Speaker 10 (36:35):
We know this is hard and that it's a difficult
time to be a public.
Speaker 4 (36:38):
Servant, but whether you're serving in the CIA.
Speaker 1 (36:40):
The Army, or Navy Air Force.
Speaker 4 (36:43):
Your vigilance is critical and know that we have your back.
Speaker 2 (36:47):
All six who have military or intelligence backgrounds, we're just
telling service members and intelligence officers what the law is.
Yet President Trump has called them tray and said they
were engaging in seditious behavior punishable by death.
Speaker 1 (37:05):
Well, first of all, all the members of the House
and Senate who made that video said was you have
a duty to obey the law, and that includes a
duty to disobey on lawful orders. That's a correct statement
of the law. And I don't think that any investigation
into those members should ever come up as a result
(37:28):
of them making a correct statement of the law. I
think that that concern is real based on this bellicosity
that's come out of the White House, and that bellicosity
includes the use of the federalized National Guard in our cities.
Speaker 2 (37:46):
According to Bloomberg's sources, FBI headquarters is pressuring the bureau's
domestic terrorism agents to open a seditious conspiracy investigation into
those six democratic laws.
Speaker 1 (38:01):
Yeah. You know, I was asked the other day if
there is precedent for this, or precedent for a military investigation,
and to Senator Mark Kelly, and I said, no, there
is not, not in the United States. There is precedent
for it elsewhere. One of the things that the framers
(38:21):
of our constitution and all their genius wanted to do
was to create a government that was responsible to the
people through the legislative branch. And the last time something
like this happened wasn't in the United States. It was
before the United States was created. It was Oliver Cromwell
(38:42):
using his new model army to pressure Parliament to take
votes the way that he wanted them to take votes,
including the execution of Charles the First. We built a
constitution to prevent the very thing that apparently the FBI's
leaderships to now think is plausible seditious conspiracy. Look to me,
(39:06):
if there's a high crime or misdemeanor, it's the attempt
to cower members of Congress from exercising their free speech rights.
It's not the exercise of those free speech rights themselves.
Speaker 2 (39:19):
The Civil War era seditious conspiracy law requires prosecutors to
prove a defendant conspired to use force to oppose US
government authority or to prevent, hinder, or delay the execution
of any US law. Is it sort of absurd to
claim under that statute that this was in any way
(39:43):
seditious conspiracy?
Speaker 1 (39:45):
Again, I go back to my Alice in Wonderland quote. Yes,
in the rule of law. It certainly is that you
need to go back to the Civil War, and you
can look at members of Congress, slaveholder like Benjamin Gwynn
Harris from Maryland, who actually gave a prayer on the
floor of Congress for a Southern victory, or a pacifist
(40:06):
like Alexander Long who gave anti war speeches, and at
no time were those two sitting members of Congress investigated
or prosecuted. You know, every time you and I speak
about the administration, I say they pushed the envelope. But
on this particular case, this truly is. It's beyond absurd.
(40:28):
It's truly an affront to the Constitution, the separation of powers,
and the ability of members of Congress to represent their
constituents on the very fundamental positions that a majority of
their constituents elected them to do. Again, it goes back
to the pre revolutionary days, the mentality of Cromwell and
(40:49):
the rule of the major generals and the dictatorship of
the mid sixteen hundreds in Britain, the very thing we
had a revolution against.
Speaker 2 (40:56):
You know, your history. Just that's certain. Thanks for joining me.
That's Professor Joshua Kastenberg of the University of New Mexico
Law School. And that's it for this edition of The
Bloomberg Law Show. Remember you can always get the latest
legal news on our Bloomberg Law podcasts. You can find
them on Apple Podcasts, Spotify, and at www dot Bloomberg
(41:19):
dot com slash podcast Slash Law, And remember to tune
into The Bloomberg Law Show every weeknight at ten pm
Wall Street Time. I'm June Grosso and you're listening to
Bloomberg
Popular Podcasts
Stuff You Should Know
If you've ever wanted to know about champagne, satanism, the Stonewall Uprising, chaos theory, LSD, El Nino, true crime and Rosa Parks, then look no further. Josh and Chuck have you covered.
Dateline NBC
Current and classic episodes, featuring compelling true-crime mysteries, powerful documentaries and in-depth investigations. Follow now to get the latest episodes of Dateline NBC completely free, or subscribe to Dateline Premium for ad-free listening and exclusive bonus content: DatelinePremium.com
Betrayal: Weekly
Betrayal Weekly is back for a brand new season. Every Thursday, Betrayal Weekly shares first-hand accounts of broken trust, shocking deceptions, and the trail of destruction they leave behind. Hosted by Andrea Gunning, this weekly ongoing series digs into real-life stories of betrayal and the aftermath. From stories of double lives to dark discoveries, these are cautionary tales and accounts of resilience against all odds. From the producers of the critically acclaimed Betrayal series, Betrayal Weekly drops new episodes every Thursday. Please join our Substack for additional exclusive content, curated book recommendations and community discussions. Sign up FREE by clicking this link Beyond Betrayal Substack. Join our community dedicated to truth, resilience and healing. Your voice matters! Be a part of our Betrayal journey on Substack. And make sure to check out Seasons 1-4 of Betrayal, along with Betrayal Weekly Season 1.