Truthout Stories Tue, 26 May 2015 09:44:47 -0400 en-gb The Worst of All Possible Worlds: Did Market Leninism Win the Cold War?

Imagine an alternative universe in which the two major Cold War superpowers evolved into the United Soviet Socialist States. The conjoined entity, linked perhaps by a new Bering Straits land bridge, combines the optimal features of capitalism and collectivism. From Siberia to Sioux City, we’d all be living in one giant Sweden.

It sounds like either the paranoid nightmare of a John Bircher or the wildly optimistic dream of Vermont socialist Bernie Sanders.

Back in the 1960s and 1970s, however, this was a rather conventional view, at least among influential thinkers like economist John Kenneth Galbraith who predicted that the United States and the Soviet Union would converge at some point in the future with the market tempered by planning and planning invigorated by the market. Like many an academic notion, it didn’t come to pass. The United States veered off in the direction of Reaganomics. And the Soviet Union eventually collapsed. So much for “convergence theory,” which like EST or cold fusion went the way of most crackpot ideas.

Or did it? Take another look at our world in 2015 and tell me if, somehow we haven’t backed our way through the looking glass into that very alternative universe -- with a twist. The planet currently seems to be on the cusp of a decidedly unharmonic convergence.

Consider what’s happening in Russia, where an elected autocrat presides over a free market shaped by a powerful state apparatus. Similarly, China’s mash-up of market Leninism offers a one-from-column-A-and-one-from-Column-B combination platter. Both countries are also rife with crime, corruption, growing inequality, and militarism. Think of them as the un-Swedens.

Nor do such hybrids live only in the East. Hungary, a member of the European Union and a key post-Communist adherent to liberalism, has been heading off in an altogether different direction since its ruling Fidesz party took over in 2010. Last July, its prime minister, Viktor Orban, declared that he no longer looks to the West for guidance. To survive in an ever more competitive global economy, Orban is seeking inspiration from various hybrid powers, the other un-Swedens of our planet: Turkey, Singapore, and both Russia and China. Touting the renationalization of former state assets and stricter controls on foreign investment, he has promised to remake Hungary into an “illiberal state” that both challenges laissez-faire principles and concentrates power in the leader and his party.

The United States is not exactly immune from such trends. The state has also become quite illiberal here as its reach and power have been expanded in striking ways. As it happens, however, America’s Gosplan, our state planning committee, comes with a different name: the military-industrial-homeland-security complex. Washington presides over a planet-spanning surveillance system that would have been the envy of the Communist apparatchiks of the previous century, even as it has imposed a global economic template on other countries that enables enormous corporate entities to elbow aside local competition. If the American tradition of liberalism and democracy was once all about “the little guy” -- the rights of the individual, the success of small business -- the United States has gone big in the worst possible way.

The convergence theorists imagined that the better aspects of capitalism and communism would emerge from the Darwinian competition of the Cold War and that the result would be a more adaptable and humane hybrid. It was a typically Panglossian error. Instead of the best of all possible worlds, the international community now faces an unholy trinity of authoritarian politics, cutthroat economics, and Big Brother surveillance. Even though we might all be eating off IKEA tableware, listening to Spotify, and reading the latest Girl With the Dragon Tattoo knock-off, we are not living in a giant Sweden. Our world is converging in a far more dystopian way. After two successive conservative governments and with a surging far-right party pounding its anti-immigrant drumbeat, even Sweden seems to be heading in the same dismal direction.

Indeed, if you squint at the history of the last 70 years, you might be persuaded to believe that the convergence theorists were right after all. For all the excitement the fall of the Berlin Wall generated and the paradigm shifts it inspired, the annus mirabilis of 1989 may not have been the end of one system and the victory of the other, but an odd interlude in a much longer evolution of the two.

Bats Do It, Whales Do It

Bats and whales don’t look at all alike. But they both operate in similarly dark environments. Bats hunt at night, while whales navigate the murk of the ocean. Because neither animal can rely on visual clues, they have developed the ability to echolocate, to use, that is, sound waves to find their way around. This clever strategy is an example of convergent evolution: adaptation by different creatures to similar environmental conditions.

Some social scientists in the Cold War period looked at Communism and capitalism in much the same way that evolutionary biologists view the bat and the whale. Both systems, while structurally different, were struggling to adapt to the same environmental factors. The forces of modernity -- of technological development, of growing bureaucratization -- would, it was then believed, push both systems in the same evolutionary direction. To achieve more optimal economic results, the Communists would increasingly rely on market mechanisms, while the capitalists would turn to planning. Democracy would take a backseat to bureaucracy as technocrats with no particular ideology ran the countries in both blocs in that now-distant two-superpower world. What would be lost in participation would be gained, it was claimed, in efficiency. The resulting hybrid structures, like echolocation, would represent the most effective ways to operate in a challenging global environment.

Convergence theory officially debuted in 1961 with a short but influential article by Jan Tinbergen. Communism and capitalism, the Dutch economist argued, would learn to overcome internal problems by borrowing from each other. More contact between the two foes would lead to a virtuous circle of more sharing and greater convergence. Further exposure came with John Kenneth Galbraith’s 1967 bestseller, The New Industrial State. From there, the concept spread beyond the economics profession and the transatlantic alliance.  It even found adherents, among them nuclear physicist and dissident Andrei Sakharov in the Soviet Union.

In the 1970s, the coming of détente between the two superpowers suggested that these theorists had been on the mark. Policies emphasizing “coexistence,” adopted by each of the previously implacable enemies and facilitated by scientific exchanges and arms control treaties, seemed to herald a narrowing of differences. In the United States, even Republicans like Richard Nixon began to embrace wage and price controls in an effort to tame the market, while the rise of cybernetics suggested that computers might overcome the technical difficulties that socialist countries faced in creating efficient planned economies. In fact, with Project Cybersyn, an early 1970s effort to harness the power of semiconductors to regulate supply and demand, the government of Chile’s democratically elected socialist president Salvador Allende planned to usher in just such a technotopia.

Of course, Allende went down in a U.S.-backed military coup. Détente between the two superpowers collapsed in the late 1970s and, under the sway of Reaganism, American government officials began to dismantle the welfare state. At the same time, the Soviet Union, now headed by aged bureaucratic leaders like Leonid Brezhnev, sank into an economic funk before Mikhail Gorbachev made one last desperate, failed effort to preserve the system through a program of reforms. In 1991, the Soviet Union disappeared and the victory of rampant global capitalism was proclaimed.

Not surprisingly, in the early 1990s several scholars wrote epitaphs for what clearly seemed to be a conceptual dead end. Convergence was dead. Long live, well what?

The Short-Lived End of History

Even as convergence theory was bowing out ungracefully, political theorist Francis Fukuyama was reinventing the concept. In the summer of 1989, with his controversial essay “The End of History” in which he proclaimed the eternal triumph of liberal democracy (and the economic system that went with it), he anticipated the central question of the era: What would replace the ideological confrontation of the Cold War?

Several months before the fall of the Berlin Wall and the outbreak of the Velvet Revolution in Czechoslovakia, Fukuyama argued that Communism would no longer pose an alternative to liberal democracy and that the European Union, the “universal homogeneous state” of his philosophical mentor, Alexandre Kojève, would ultimately be victorious. The endpoint of global political and economic evolution, in other words, was once again a political bureaucracy and an economic welfare state patterned on European social democracy. For Fukuyama, the tea leaves were clear: convergence was back as the way of the future.

What would have thrilled the architects of European integration -- and the likes of Jan Tinbergen and John Kenneth Galbraith -- was, however, a grave disappointment for Fukuyama, who was already in a premature state of mourning for the heroism that epic confrontations inspired.  The ideological conflict that had given shape to the Cold War and meaning to all those who fought in its political and military skirmishes would, he feared, be defused and diminished.  All that might then be left would be polite exchanges over minor disagreements in a boardroom in Brussels. The end of history, indeed!

Soon enough, Fukuyama’s thesis, briefly hailed here as the endpoint of all speculation about our global fate, came up visibly short as other potent ideologies reemerged to challenge the generally liberal democratic ethos of the West. There were, as a start, the virulent strains of ethno-nationalism that tore Yugoslavia apart and continued to rage across the expanse of the former Soviet Union. Similarly, religious fundamentalism, especially Islamic extremism, challenged the hard power, the multicultural ethos, even the very existence of various secular states across the Middle East and Africa. And the row of Communist dominoes toppling eastward stopped at Mongolia. China, North Korea, Laos, and Vietnam at least nominally retained their governing ideologies and their single party structures.

At the same time, the European Union expanded, absorbing all of East-Central Europe (except for a couple of small Balkan states), even incorporating the Baltic countries from the former Soviet Union. Convergence, Fukuyama-style, came in the form of acceding to the requirements of EU membership, a lengthy process that reshaped the political, economic, and social structures of its eastern aspirants. The war in Yugoslavia eventually ended, and Europe seemed to have avoided a much deeper clash of civilizations. Even in Bosnia, the Orthodox, Muslim, and Catholic factions achieved a grudging modus operandi, though the country remains far from a well-functioning entity.

Fukuyama had, in fact, suggested a variant of convergence theory -- that it would take the form of absorption. In this more ruthless narrative of evolution, the blue whale survives as the largest leviathan of the deep, while the immense shark-like Megalodon disappears. The Soviet Union made its bid for the proletariat of the world to unite and push capitalism into extinction. It failed. Instead, the fall of the Berlin Wall and the reunification of Germany vindicated the capitalist theorists. So did the absorption of East-Central Europe into the European Union.

And once again, that was supposed to be the end of the story. The EU would be a diluted version of the Sweden that the original convergence theorists had posited -- generally peaceful, modestly prosperous, and passably democratic. The “common European home,” which Gorbachev invoked at the peak of his prestige, might one day even include Russia to the east and transatlantic partner America to the west.

Today, however, that common European home is on the verge of foreclosure. It’s not just that Russia is heading off in an entirely different direction or that the United States recoils from even the weak Scandinavian social democracy that the EU promulgates. Greece is contemplating what once was heresy, its own Grexit or departure from the Eurozone. More troubling, in the very heart of Europe in Budapest, Viktor Orban is turning his back on the West and facing East, while anti-EU, anti-immigrant right-wing parties are gaining adherents across the continent. A new axis of illiberalism might one day connect Beijing to Moscow, Hungary, and possibly beyond like a new trans-Siberian express. The vast Eurasian landmass, the historic pivot of geopolitics, is sinking into despotism with a corporate face and cosmetic democracy.

And Hungary is no European outlier, despite the EU’s censure of Orban’s authoritarian tendencies. Other leaders in the region, from the conservative Jaroslaw Kaczynski in Poland to the social democrat Robert Fico in Slovakia, look enviously at Orban’s model and his political success. Euroskepticism is spreading westward, with the far Right poised to take over in Denmark, the National Front capturing the most seats in the last European parliamentary elections in France, and the recently victorious Conservative Party in Great Britain planning to go ahead with a referendum on continued membership in the EU.

In other words, a geopolitical game of Go is underway. And just when you thought that the liberal pieces had spread successfully from the Atlantic to the western edge of Russia -- and under former Russian leader Boris Yeltsin possibly to the very shores of the Pacific -- the anti-liberals made a few key moves on the margins and the board began to shift in their favor. Croatia’s entrance into the EU in 2013 may well have been the high-water mark for that structure. An economic crisis in Greece, a political crisis in Great Britain, and a liberal crisis in Hungary could combine to unravel the most upbeat scenario for the recrudescence of convergence theory.

With the EU potentially on its way out, brace yourself for something considerably less anodyne.

Convergence American-Style

The United States prides itself on being an exception to the rules, hence the endless emphasis by American political leaders of every stripe on the country’s “exceptionalism.” The U.S. remains the world’s only true superpower. It refuses to sign a range of international treaties. It reserves the right to invade other countries and even assassinate its own citizens if necessary. How could such a unique entity converge toward anything else?

These days, it’s usually just right-wing nuts who sound like old-fashioned convergence theorists. They’re the ones who label President Obama a secret agent of European socialism and believe that his health care plan will pollute the country’s precious bodily fluids, much as Dr. Strangelove’s General Jack D. Ripper worried about fluoridation. Despite the ornate fantasies of such figures, the United States has clearly moved in the opposite direction. Today’s Democrats are considerably more conservative economically than the Republicans of the 1970s and the Republicans have effectively purged all moderates from their ranks in their surge rightward.

Instead of converging toward Scandinavian socialism, the U.S. has been slouching toward illiberalism for some time now. The Tea Party bemoans the “nanny” and “gun-control” state, but misses the deeply sinister ways in which that state has been captured by the forces of illiberality. The United States has expanded its archipelago of incarceration, our homegrown gulag, so dramatically that we have more people in prison -- in total and by percentage of population -- than any developed country on Earth. Our political system has been taken over by a club of the rich -- our own nomenklatura -- with corruption so embedded that no one dares call it by that name and critics instead speak of the “revolving door” and “voter suppression” and the “influence of money in politics.” The deterioration of public infrastructure has, as in the Soviet Union in the 1970s, turned the country into an embarrassment of falling bridges, exploding gas lines, bursting pipelines, backward railroads, unsecured power plants, and potential ecological catastrophes.

Add in spreading governmental surveillance and secrecy, unsustainable military spending, and a disastrously interventionist, military-first foreign policy and the United States is looking a lot like either the old Soviet Union or the Russia of today. Neither is a flattering comparison. America has not yet descended into despotism, so the convergence is hardly complete. But it might be only one right-wing populist leader away from that worst-case scenario.

Where Does History End?

In the long sweep of history, development is not a one-way street that leads all traffic toward a single destination. No doubt the Romans in the first century AD and the Ottomans of the sixteenth century imagined that their glorious futures would be full of successful Caesars and sultans. They didn’t anticipate any great leaps backwards, much less the future collapse of each of their systems. Why should the EU or the American colossus be exempt from history’s serpentine ways?

And yet America consoles itself that what’s happening in Russia and China is only a temporary detour. Fukuyama might have been premature in his 1989 declaration of history’s end, but his historical determinism remains deeply imbedded in how Western liberal elites look at the world. They sit back and wait impatiently for countries to “come to their senses” and become “more like us.” They arrogantly expect convergence by absorption to proceed, if not tomorrow then eventually.

But if, in fact, the signs along the highway are not all pointing toward the same destination, then maybe we should stop checking our watches to see when North Korea will finally collapse, the Chinese Communist Party implode, and Putinism grind to a halt. These are not evolutionary dead-ends awaiting another political meteor, like the one in 1989, to strike the planet and wipe them out. For all we know, they might even outlive their Western challengers. The Chinese hybrid, for instance, seems no less stable at the moment than any liberal democracy, particularly now that its economy has surpassed that of the U.S. to become the largest in the world. Nor does Beijing appear to be intent on ending its one-party rule any time soon.

Convergence theorists expected that certain global trends, from technological innovation to economic development, would push different ideological systems toward a merger at some point in the future. They may well have been right about the mechanism, but wrong about the results. A different set of factors -- global financial crisis, widening economic inequality, increasingly scarce natural resources, anti-immigrant hysteria, persistent religious extremism, and widespread dissatisfaction with electoral democracy -- is pushing countries toward a considerably less harmonic kind of convergence. Forget about the “new industrial state.” Welcome to the new post-industrial despotism.

The ongoing convulsions of geopolitics are throwing up all manner of new hybrids. Many of these market authoritarian regimes are deeply troubling, the offspring of a marriage of the less savory aspects of collectivism and capitalism. But they are also potent reminders that, because we are not the slaves of history, we can transform our putatively triumphant liberalism, with all its manifold defects of corruption, inequality, and unsustainability, into something more optimal for both human beings and the planet. The bats did it, the whales did it, and even though it’s not inevitable, we humans can do it, too.

Opinion Tue, 26 May 2015 00:00:00 -0400
The Trans-Pacific Partnership: This Is Not About Ricardo

The Obama administration is lobbying hard for Congress to pass a trade promotion authority (TPA) and to quickly approve the Trans-Pacific Partnership (TPP), a free trade agreement that is on the verge of being finalized.

The administration and its supporters on this issue, including leading Republicans, argue that the case for TPP rests on basic economic principles and is only strengthened by the findings of modern research.  On both counts their claims are greatly exaggerated – particularly with regard to the notion that more trade, on these terms, is necessarily better for the United States.

There is a strong theoretical and empirical case – dating back to David Ricardo in 1817 – that freer trade should make countries better off. However, modern-day trade agreements, including those currently being negotiated, are very different from earlier experiences with trade liberalization.

The TPP is not only – perhaps not even mostly – about freer trade, and thus who gains and who loses is very much dependent on what exactly are the details of the agreement. The exact nature of the provisions matters and at this point, because the TPP text is not available to the public, we cannot be sure whom this trade agreement will help or hurt within the United States or elsewhere.

Outside of agriculture, international trade is already substantially liberalized, and thus the gains from further reductions in tariffs are most likely limited by the fact that tariffs are already quite low.

And the scope of modern-day trade agreements has expanded – primarily into areas in which the economic theory case for mutual benefits is far from clear.

Perhaps the most prominent example is intellectual property rights (IPRs), including patents.  Contrary to the mutual benefits of international trade in general, there is no clear-cut theoretical case that stronger enforcement of IPRs will benefit all parties.

In the world in which the developing countries can imitate technologies of developed countries, improving intellectual property rights protection in developing countries is actually likely to make them worse off.  This is intuitive: ignoring the developed countries' IPRs allows developing countries to adopt better technologies faster, increasing welfare there.  In the case of medicines, for example, forcing lower income countries to fully respect all patents will mean more expensive treatments and less access to life-saving drugs.

What is more, it may even be the case that the developed countries themselves will benefit from weaker IPRs in the poorer countries (though of course this is not a necessary outcome).  This is because poorer countries tend to have lower wages, and as production shifts to the poor countries due to imitation, prices paid by rich countries' consumers fall.  Helpman (1993) contains the modern classic exposition of these results.  (Precise references to the research cited here are at the end of this article.)

The second example is provisions that require liberalization of inward investment in oligopolistic industries.  For instance, recent US trade agreements with Central America/Dominican Republic, Peru, Panama, and Colombia contain specific clauses liberalizing investment in the financial services industry (as well as government procurement and investment more broadly).  Again, the theoretical case that these provisions will be mutually beneficial is not straightforward.

For instance, if an industry is uncompetitive, countries may gain from retaining the domestic oligopolistic firms.  Entry by foreign firms may not increase competition but instead primarily result in transferring the profits abroad.  Brander and Spencer (1985) develop these ideas for cross-border trade; a recent paper by Fiorini and LeBrand (2015) focuses on inward investment by foreign firms.

The third example is the potential for a negative impact of international trade on the quality of domestic institutions. The standard argument for mutual gains from trade assumes that international exchange of goods does not lead to changes in the institutional environment – including who has secure property rights (as in land), as well as enforceable rights as a worker (including occupational safety standards).

There have been historical episodes in which trade booms led to worse institutional outcomes, such as property expropriation by elites.  Do and Levchenko (2009) develop a theoretical model of one possible mechanism for such an effect.  Historical instances of this include the cotton boom in Central America (Do and Levchenko, 2006), and sugar in the Caribbean (Dippel, Greif, and Trefler, 2015).

To be clear, we are not saying that this is a likely impact of TPP.  But it is a possible impact of any free trade agreement (or other form of trade liberalization).  This only confirms the point that the details matter in terms of determining who does well and who may do very badly.

We remain confident that there is a potential TPP that could be negotiated that would involve gains for all trading partners.  But whether this is the case depends completely on the specific rules that are being written.

Given that these rules are secret (from us), we have no way of judging what is or is not in the TPP.  Congress will vote soon on TPA, to greatly increase the odds of passing TPP, without there being first a proper public discussion of the TPP details.  This is not a triumph of democracy – and it is not likely to lead to better economic policymaking.

Simon Johnson is a professor at MIT Sloan.  Andrei Levchenko is an associate professor at the University of Michigan.


Brander, James A. and Barbara J. Spencer, 1985. "Export subsidies and international market share rivalry," Journal of International Economics, Elsevier, vol. 18(1-2), pages 83-100, February.

Dippel, Christian, Avner Greif, and Dan Trefler, 2015, "Trade Rents and Coercive Labor Market Institutions," NBER Working Paper 20958,

Do Quy-Toan and Andrei A. Levchenko, 2006, "Trade, Inequality, and the Political Economy of Institutions," IMF Working Paper 06/56, February.

Do Quy-Toan and Andrei A. Levchenko, 2009, "Trade, Inequality, and the Political Economy of Institutions," Journal of Economic Theory, 144:4, 1489-1520, July.

Fiorini, Matteo and Mathilde Lebrand, 2015 "Foreign Lobbying, Barriers to FDI, and Investment Agreements," mimeo, EUI.

Helpman, Elhanan, 1993. "Innovation, Imitation, and Intellectual Property Rights," Econometrica, Econometric Society, vol. 61(6), pages 1247-80, November.

Opinion Tue, 26 May 2015 00:00:00 -0400
A Tale of Two Supermarkets: One Transition Town's Efforts to Respond to Gentrification

Community resilience is often thought of in concrete terms: growing local food, using sustainable energy, riding bikes and using alternative transit, and lowering carbon emissions.

All of this is tremendously important. But resilience is also a question of who, as well as what. It is possible to imagine a future full of gated neighborhoods that are highly resilient, where wealthy people live in carbon-neutral communities complete with bikes, electric cars, mini-farms, windmills, and solar panels.

This is how gentrification systematically undermines attempts to create resilience for all. It's why the future scenario of "gated resilience" is one we must seriously consider and work to prevent. We must always ask: who is community resilience really for? It's also clear that as communities build resilient "amenities," such as community gardens, green space, walkable business districts, farmers markets, and bike paths, they become more desirable places to live – and real estate prices rise. Tragically, the folks who worked so hard to improve their communities, and make them resilient, get priced out.

Él Platanero and Hi-Lo

According to Jamaica Plain New Economy Transition (JP NET) organizer Carlos Espinoza-Toro, "Gentrification is a structural problem embedded into our financial and economic system."

But despite its structural nature, people often approach gentrification as if it was a matter of individual choice. As a neighborhood changes and gentrifies, hurtful fights can break out. "New" and "old" neighbors often battle over potent symbols–such as murals and supermarkets. But it is possible to navigate these conflicts with skill and care, lessening the impact, and uniting the community rather than dividing it. (For an example, see this story about Beth Roy, a mediator who helped a community navigate gentrification in the San Francisco area.)

Take, for example, Tropical Foods Supermarket–or "Él Platanero"–in Dudley Square, Boston. Jeanette's father, a native of Mexico, has shopped at Él Platanero for many years. He found a sense of community there, where everyone understood one another. Él Platanero was a place where he could connect with people in his native language. In 2014 he learned of the supermarket's upcoming renovation project. Although it would be under the same owners, he feared the new, remodeled location will mean more expensive groceries and a loss of its unique culture.

Luckily, this story has a positive ending. The supermarket has now been open for business in its new space for a few months. It has brought in new customers, but it has also retained many old ones. Jeanette's father still shops there and believes this change has had a positive outcome. The culture still remains and its appearance is more polished. Compared to other local supermarkets, her father believes Tropical Foods does a better job at respecting foreign and Latin American products. He can always count on finding his favorite products at reasonable prices.

We find a much more mixed story in neighboring Jamaica Plain, where a Whole Foods took over the "Hi-Lo" supermarket in 2011. Hi-Lo had served the Latino community for almost 50 years in JP. Very much like Tropical Foods in Dudley Square, it was a place to connect with friends.

Jeanette's mother, of Puerto Rican descent, would visit Hi- Lo whenever she needed a product specifically from her home island. "At Hi-Lo, you almost felt as if you were shopping in a Latin American country," she said.

This is the situation for many new Americans in search of a taste from home. Unable to find certain products for a good price, they have to settle for what is available.But even though Hi-Lo often had great deals on groceries, a product she most searched for, "pana," or breadfruit, was always over-priced. Growing up in Puerto Rico, Jeanette had a giant breadfruit tree in the backyard. What was once abundant and taken-for-granted now costs Jeanette's mother almost $10 for just one piece of fruit.

Whole Foods replaced Hi-Lo in 2011 after its long-time owners retired. This brought about both excitement and disappointment from Latino customers. Some were upset about losing a piece of home, while others were excited about change. Some worried there would be no place to find their products, and others–like Jeanette's mother–worried that if Latin American products were sold at Whole Foods, the prices will increase even more.

In the end, Jeanette's mother was right. Whole Foods does not carry breadfruit, and the prices for all its produce are high. While some Latino neighbors may occasionally get groceries at Whole Foods, it is certainly not the community center that Hi-Lo was.

In a gentrifying neighborhood, little "tastes of home" like breadfruit become hard–or even impossible–to find.

Getting Structural

Food is a powerful indicator of gentrification, and signifies who really belongs in a neighborhood. "If an institution like Whole Foods comes into a neighborhood and says it cares about the cultural well-being of neighbors, it should be able to provide food that enhances that well-being," says Carlos. JP NET put together a "Meet your Neighbors' Fruits" informational sheet so we can learn more about the fruits our neighbors know and love.

Clearly, fruit by itself does not address the structural causes of displacement. In fact, "It takes much more than one project or policy to address this issue," says Carlos. "It takes a movement of people who understand it, structurally and systematically."

Strong movements are built on solidarity. That's why JP NET hosts bilingual potlucks–on topics ranging from gardening to sports to climate change–in order to build trust across neighborhood divides. "We've learned that there is no quick fix to a structural problem," says Carlos. "Only through conversations, education, and the slow work of relationship-building, can we spark a powerful movement of people who know, trust, and care about each other–and who are willing to fight for community resilience for all neighbors."

Opinion Tue, 26 May 2015 00:00:00 -0400
Towards Legalized Corporate Secrecy in the European Union?

How industry, law firms and the European Commission worked together on EU “trade secrets” legislation - a threat to consumers, journalists, whistleblowers, researchers and workers.


This report (pdf version) is based on the analysis of hundreds of documents, [1] obtained through an access to documents request, exchanged between the European Commission's DG Internal Market and the main corporate lobby groups involved in the development of the EU's draft legislation on so-called “trade secrets”.

Industry's main message throughout the process has been that trade secret theft is a major threat to the EU economy that demands a legislative initiative to improve and harmonise rules on the matter. Industry's recommended approach for this was to define trade secrets as a form of intellectual property (IP).

From the very beginning the Commission took a strong interest in the idea and went on to collect the evidence it needed to demonstrate that legal "fragmentation" and trade secret theft would, indeed, be a threat.

But it outsourced the research to law firms that have a structural interest in the development of new legal protection tools for their corporate clients. In the end, industry and the Commission acted together, working hand in hand on the methodology of the very evidence collection for the research, jointly organising a “Commission conference on trade secrets”, even coordinating media outreach on one occasion.

Eventually, the Commission followed industry's demands almost completely, stopping short of creating a new IP category for trade secrets in the EU but granting the associated means of legal redress.

The collaboration between DG Internal Market and the lobby groups seems to have extended to lobbying the other DGs, jointly preparing the submission to the Commission's Impact Assessment Board, and lobbying the two other EU legislators, the Council of Ministers (Member States) and the European Parliament.

When asked, the Commission did not dispute much of the above and failed to see how working for three years on a quasi-daily basis with lobby groups could be a problem. Emails show the opposite is actually true: the Commission, once the decision to initiate new legislation was taken, actually needed industry lobby groups' help. The Commission for example did pro-active outreach to business lobby groups to be sure that as many companies as possible participated in the public consultation. Non-industry groups were completely absent from the Commission's drafting process until the public consultation, and no pro-active outreach to them seems to have been undertaken by the Commission. 

Three other important observations should be made about this correspondence:

- Reference was often made to the upcoming TTIP negotiations to justify the action, as comparable legal action was being drafted in the US, and direct lobbying of TTIP negotiators to get trade secrets protected as IP under TTIP was undertaken.

- Lobbying is made easier by the lack of capacity on the public side of the discussion. Between 2010 and June 2012, only one policy officer and his head of unit were in charge of the technical development of the file, and in June 2012 one other policy officer joined them. Other levels of the administration also intervened but at the management level. On the other side, industry sent in teams of consultants, lawyers and executives, background legal research, field examples, and senior academic contacts –all free of charge for the Commission.

- To the Commission's credit, there are at least two moments in the correspondence where the head of unit objected to industry proposals that went too far from a political independence point of view (a meeting proposal from the fragrance industry to discuss a template draft legislation, and angry remarks about suspicious-looking exchanges between the law firm working for the Commission (Baker & McKenzie) and lobby groups active on the file), but his staff never wrote anything of the sort. On the contrary, there are several instances where they actually facilitated the lobbying work of industry by introducing various lobby groups and the consultants working for the Commission to one another. Who doesn't appreciate competent free help for one's work?

Introduction: A Very Contentious Proposal

In January 2015, French journalists mobilised massively against a long amendment on the protection of “trade secrets” tabled by the government within a broader piece of economic legislation going through the Parliament. This unusual mobilisation was undertaken to defend the whole profession: these amendments foresaw that the unauthorised acquisition, use and disclosure of trade secrets would be punishable with 375,000€ fine and 3 years in prison (and twice that when the country's “sovereignty, security and essential economic interests” are at stake). The justification was to fight industrial espionage, but the text used a definition of “trade secrets” so broad that almost any internal information within a company could qualify, endangering business reporting, investigative journalism on corporations and the confidentiality of journalistic sources. The government quickly understood the text was not acceptable to the press as it stood and withdrew it.

This was only the beginning, however, because it quickly appeared that these amendments were about adding to French law the key elements of an EU text still being debated by the European Parliament on the same issue (and with the same justification: fighting industrial espionage). The draft directive on the “protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure” was published by the European Commission in November 2013 and amended and approved by the European Council in May 2014.

While it does not foresee the same drastic penalties as what was considered by the French government (the draft Directive only harmonises civil law remedies, not criminal law), the draft directive has also attracted the criticism of a very broad range of civil society groups (including CEO and many others such as the European Federation of Journalists, the European Trade Union Confederation, Wikileaks, Public health NGOs, whistleblowers' defense organisations...), and for comparable reasons. The same vague and all-encompassing definition of trade secrets is used, the text defines secrecy as the norm and freedom of information as the exception (with the burden of proof on the journalist or whistleblower to demonstrate that disclosure was needed and that he has acted in the public interest), and endangers workers' mobility and corporate accountability.

It is also feared that the directive would provide additional legal arguments for companies to refuse the disclosure of the data they file with public authorities for their products' market authorisation, such as clinical trials for medicines or toxicological data for chemicals and food products (such disclosure is seen as indispensable to guarantee a scientifically rigorous assessment of these products). The Commission says its text is “neutral” on this point but lobbying goes on in the European Parliament with clear attempts in this direction.

By going as far as possible towards making trade secrets a new category of intellectual property (such a new category is not created but trade secrets “holders” are given means of legal redress comparable to what they would have obtained if it had been created), the draft directive might even limit the free circulation of knowledge and workers and thereby innovation, one of the arguments nevertheless used to justify it (a stricter legal protection of trade secrets against misappropriation is presented as potentially contributing to enabling research partnerships between companies). M. Gallo, a French MEP supportive of the project who chaired a December 2011 event on the issue, indeed pointed out then that “one hurdle is to make it understood that IP is associated with development, and not monopolistic rights that inhibit creation and innovation”.

Recent cases where the trade secrets protection argument is used by companies in legal proceedings against whistleblowers, journalists and employees show that fears about the consequences of the draft EU directive on civil liberties and the balance of power between employers and workers are not unfounded.

For instance, whistleblower Antoine Deltour, one of the sources in the Luxleaks affair, as well as French journalist Edouard Perrin, who first revealed it, are being sued by PriceWaterHouseCoopers in Luxembourg for alleged trade secrets “violation” after they disclosed scandalous tax deals brokered by PWC between Luxembourg and hundreds of multinationals, an important source of tax evasion and therefore public indebtedness in the EU.

This dimension of the problem was not ignored by the Commission. Its impact assessment discusses to what extent the text might threaten whistleblowing and journalistic freedoms, and concludes that it “does not disproportionately limit the freedom of expression and information, and in particular journalistic freedom” since there is a necessary “balancing” of interests to be made between the right of trade secrets owners and freedom of expression and information, pending that a safeguard clause is introduced to protect journalists and whistleblowers from abuse. This safeguard clause however is seen by journalists as completely insufficient.

In the US, where trade secrets are considered a form of intellectual property, ongoing legal proceedings show how trade secrets litigation has become a daily resource for companies to expand the scope of what they can claim as their property, at the expense of the rest of society, particularly workers. Ongoing litigations show a doctor suing the state of Pennsylvania for being forced to sign a non-disclosure agreement to obtain the composition of fracking fluids for medical purposes; a company suing a former employee to claim ownership of the social media contacts made by this employee during her time at the company; or three former Nike designers suing the company after they realised it had spied (in vain) on their correspondence in search for evidence for trade secrets sharing with competitor Adidas.

The official justification for the text is the fight against industrial espionage. However, while the main culprits for such espionage are generally thought to be governmental intelligence agencies, the sophistication of these players' operations and their status means that identification and legal redress is very difficult. By contrast, former employees, easier to identify and prosecute, constitute the large majority of recorded legal cases for trade secrets misappropriation and it is unlikely any legislation can change this situation. One of the difficulties is therefore to find a way to enable legal redress against unfaithful employees without undermining employees' collective rights.

One possibility to avoid the problem would be to narrow the scope of the text to economic competitors and intentions of commercial gain, which is actually the existing legal standard in the majority of EU countries where trade secrets' illegal acquisition, use and disclosure is regulated through unfair competition legislation. Harmonising unfair competition legislation however was not an option followed by the Commission, and amending the text in this direction would probably be difficult as this would mean a fundamental change in the text's core structure and philosophy. Remaining options are therefore damage control, to try to bring legal clarity and certainty to the exceptions via amendments, or outright rejection.

This situation raises several questions. How is it possible that the Commission risked to undermine fundamental democratic rights when drafting the text? Why did they not foresee that such a proposal would face very serious opposition, to the point that the entire text would risk being rejected or severely amended? Could it be that “too successful” corporate lobbying played a role?

To find out, we filed an access to documents request to the Commission to obtain the correspondence between its department in charge of the file and the industry groups we suspected were the key players. Our intuition was correct: we received hundreds of documents, which we shared with journalists [2] to share the analysis and reporting effort – although some of the documents still haven't been disclosed, apparently for capacity reasons. It must be noted that although all these documents were stored electronically at the Commission, we were only sent paper versions, a major obstacle to analysis and subsequent disclosure [3]. This report describes some of what we found in them.

I. Meet the Lobbyists

The correspondence between the Commission and the lobby groups trying to influence its thinking on trade secrets legal protection illustrates how industry often manages to convince the Commission because the discussion happens in a vacuum, among a few individuals. At these early, technical levels of discussion, which are absolutely key because this is where the whole debate is framed, there is often little or no other interests intervening, and no media scrutiny. The trade secrets file is a near chemically pure example of this phenomenon.

Unquestionably, the main driving force in the lobbying campaign from industry's side has been theTrade Secrets & Innovation Coalition (TSIC), whose demands to the Commission in early 2010 seem to have spurred the Commission into action on this file.

The TSIC is a low profile organisation, a sort of dedicated working group of multinational companies on trade secrets protection lobbying. It has no website, and its work was facilitated by global law firm White&Case until late 2011, when it moved to Hill&Knowlton (H&K),[4] a global lobbying consultancy. Why exactly it changed consultants is not clear, and neither White & Case nor Hill & Knowlton answered this question. One possible explanation? Thomas Tindemans, Counsel on EU practice at White & Case, was in charge of the file at the beginning but became the EU Managing Director of the Brussels office of Hill & Knowlton in September 2010; he took charge of the file again when the TSIC moved to Hill & Knowlton, a bit more than a year later.

The TSIC case is an interesting example of the flaws of the EU's voluntary lobbying transparency register. White & Case, the law firm who represented the interests of the TSIC until 2012, is not registered, did not register its client, and answered all our questions with a blancket statement that “any work around trade secrets or engagement with EU institutions would have been rooted in legal advice around specific client work. Therefore, we would decline to comment further.” This is in line with the EU inter-institutional agreement that created the register, which stipulates that legal counsel activities are indeed excluded, but much less so with what White & Case employees actually wrote to the Commission. When T. Tindemans wrote in March 2010 to a Commission official that “something needs to be done” on trade secrets legislation, was this legal counsel to a client or lobbying?

The TSIC was eventually listed by Hill & Knowlton as a client and declared separately in the Register, but in January 2014, two months after the Commission published its legislative proposal and four years after the TSIC had started lobbying it.

But problems don't stop with belated registration. According to Hill&Knowlton's entry in the EU's lobbying register, the TSIC would have brought in a revenue of under 50,000€ for 2013, while the TSIC's own entry in the register states a lobbying budget between 50,000 and 99,000€ - a surprisingly low amount given that it declares 18 employees (the equivalent of five full-time on this file). After we sent H&K a few questions on their lobbying work with the TSIC, the coalition's entry in the lobbying register was changed: the 16 staff working 5-10% on the file were deleted and the lobbying expenses figure was increased to 60,000€ - Hill & Knowlton said this was because of double accounting and inaccurate calcultions by the Register[5] According to H&K, this budget would have been stable from 2011 with about 25% of it allocated to lobbying the institutions, the rest used for coordination activities among members.

Until 1st April 2015, the TSIC's entry in the EU's Lobbying Transparency Register failed to disclose its members and was very vague on its activities. According to emails released by the Commission and the TSIC's updated entry in the register, the companies behind it are industrial gas supplier Air Liquide, transport and energy firm Alstom, chemical giant DuPont, General Electric, Intel, Michelin, Nestlé and Safran (an aircraft components, missiles and aerospace multinational). Some of these companies, in particular Alstom, DuPont and Michelin, lobbied the Commission directly in addition to what the TSIC was doing, presenting their specific examples of trade secrets theft on multiple occasions (including the Commission's official conference on trade secrets held on June 29th 2012). H&K further specified in their response to our questions that the TSIC was working “in collaboration with Business Europe, the European Chemical Industry Council (CEFIC), Europe’s 500, the European Semiconductor Industry Association (ESIA)[6] and the International Fragrance Association (IFRA).” However, a press release sent by the TSIC on June 29th lists CEFIC, IFRA and Europe's as members of the coalition.

Europe’s 500 describes itself as a “European organisation and networking platform for growth companies and their entrepreneurs.” Created in 1996, its main activity seems to be organising high-level public awards events where they publish their list of the most innovative companies in Europe but little seems to have happened since 2013. Their role in the lobbying campaign seems limited to have procured an SME/start-up speaker for the Conference organised on June 29th , R. Bonet, CEO of Fractus SA, a Spanish IT company. The contact was made via H&K. Interestingly, H&K is a partner of Europe's 5OO and Tindemans writes on his LinkedIn profile that he has been an executive officer there since 2007. However, Europe's 500 is not listed in the EU Lobbying Transparency Register, either independently or as a client of H&K if this was the case.

The European Chemical Industry Council (CEFIC) is the chemical industry's trade association and the largest lobby group in Brussels with a 150-strong office. Reported sometimes on the internet as a member of the TSIC (DuPont is a common member), it is not listed as such in the EU's lobbying register but did undertake common activities with the TSIC, and was lobbying the Commission on trade secrets as early as 2006. Throughout the Commission's drafting process, their most insisting demand has been to try to get the directive cover regulatory data, in other words make sure the directive would give them legal grounds to oppose disclosure demands by third parties to public authorities related to the information companies file with public authorities for the safety assessment of their products as a basis for these products' marketing authorisation.

Lobbying for Regulatory Data Secrecy - A Parallel Campaign

It is important to point out that the trade secrets file is not the only avenue used by CEFIC to lobby for the non-disclosure of their data filed with public authorities. The TTIP negotiations are another: a 31st October 2012 joint proposal for the regulatory cooperation aspects of the trade negotiations by CEFIC and the American Chemistry Council, sent to the Office of the United States Trade Representative, made clear from its very first point that “ensuring appropriate protection of confidential commercial information” was very important to them. They added: “Nothing in a chemical regulatory impact analysis should require the disclosure of confidential information, including information that would compromise a financial or commercial interest if disclosed, or if it is prohibited by law”, and proposed to use “robust data summaries” to “allow increased access to and transparency in information without jeopardizing commercial interests.”

But they also lobbied the highest levels of the Commission directly. A 7th March 2014 joint letter by EFPIA (the pharmaceutical industry's lobby group, fighting disclosure of clinical trials data),Europabio (the biotechnology industries' lobby group, fighting disclosure of toxicology data for GM crops for instance) and ECPA(the pesticides industry's lobby group, part of CEFIC) to the Commission's Secretary-General Catherine Day insists on “our strong concerns about the current implementation by EU agencies of the legislation dealing with public access to documents”. “Our memberships are extremely concerned at the trend they are seeing with regard to the implementation of EU transparency legislation (Regulations 1049/2001 & 1367/2006 and Directive 2003/4) and their likely effect on the competitiveness and attractiveness of the European Union as a place to do business for innovative companies, including many SMEs”.

Importantly, Catherine Day answered favourably to their request. “Thank you for your letter of 7 March 2014 in which you are pointing to the relationship between the European 'Access-to-Documents' legislation (Regulation 1049/2001) and certain elements of the Aarhus Regulation (1367/2006) that could have a direct impact on the effective protection of commercial interests and intellectual property in the EU. […] The European Commission shares your concern that a correct balance must be found between the two legal instruments (emphasis added). […] At this stage I feel that, a meeting between representatives of your organisations and the Secretariat-General at technical level would be the most suitable solution.” It is not clear at this stage what the outcome of this process was.[7]

The International Fragrance Association (IFRA), the global trade association of the fragrance industry, is based in Geneva but has a Brussels office too. An affiliate member of CEFIC, they began lobbying the Commission from early 2011 because the fragrance industry faces a major challenge: while its traditional method for protecting its key assets – formulae in particular – was secrecy, the constant progress of reverse engineering technologies makes it easier nowadays for competitors to access these. IFRA's lobbying to get an IP protection on such secrets has therefore been very intense. They hired two lobbying consultants to help them:

- Charles Laroche, a senior Belgian lobbyist who started a consultancy (Laroche Conseilh) after a career at Unilever. Laroche Conseil declared a revenue from IFRA of between 100,000 and 199,000€ in 2014 .

- Joseph Huggard, also an experienced lobbyist who created a consultancy (The Huggard Consulting Group) after an earlier career in Exxon Chemicals and Glaxo SmithKline. Claiming “over 30 years experience of working with some of the most controversial substances for a variety of industries“, selling the services of a team of product defense veterans and high-level risk experts. In 2014, he declared between 10,000 and 24,999€ in revenue from IFRA.

As with almost every policy file with an interest for big business, Business Europe, on paper representing all EU employers but in practice more multinationals than SMEs, was also active on the trade secrets file from early 2012 onwards, taking care of the high-level political work and kindly obliging the Commission's demands to help it reach out to companies around the EU in order to ensure good participation by businesses in the Commission's economic survey and public consultation (no other civil society group got the same privileged treatment). Business Europe's national members such as France's MEDEF were also active, to a lesser extent. The Association Française des Entreprises Privées (AFEP), a powerful and discrete lobby group in France, also followed the file.

II. Framing and Convincing: IP Versus Unfair Competition

In any lobbying undertaking, the framing of the problem is the most crucial moment. In this case, it seems that the TSIC's demands to have the Commission issue new legislation on trade secrets were met from the very beginning with lots of sympathy.

The TSIC’s campaign seems to have been launched early 2010. A March 2010 letter by Tindemans, then a Brussels based lawyer with White & Case, to Margot Froehlinger, who at that time was the director of the Commission unit dealing with copyright and trademarks, summarises their core lobbying message:

"In these difficult times R&D efforts are being undermined by products resulting from trade secret theft entering the European market. The implementation of the coalition’s proposals, namely (i) that the Commission publicly recognise the protection and enforcement of trade secrets and (ii) ultimately the harmonisation at European level, would go a long way towards alleviating this pressure. Something needs to be done and we hope therefore that we can assist you in shaping a coherent and effective strategy for including this item on the European Commission's agenda for IP rights."

Two weeks later, Tindemans followed with a series of trade secret violation cases involving TSIC members Alstom, Dupont and Michelin. It prompted a positive response from Froehlinger:

“If there was more support in particular from the European parliament, we could also consider a harmonisation at EU level of unfair competition rules. This is long overdue and is one of the missing links in the Internal Market. This could deal, not only with trade secrets, but also with look-alikes and other types of copying which fall short of IPR infringement but are economically very harmful for European companies.”

Froehlinger then added:

“Should you possess any more concrete information about the form and scope of trade secrets (including know-how) in different EU members states, we would be extremely pleased if you could share this information with us”.

Trade Secrets Protection: Via Intellectual Property or Unfair Competition Legislation? A TTIP Connection

As the exchange above shows, the TSIC framed their demands for trade secrets protection within the EU's intellectual property rights strategy, but the Commission's initial reaction was rather to suggest action on the level of unfair competition legislation. The fact is that, as both the Commission and the TSIC knew, the vast majority of EU Member States already do protect trade secrets with unfair competition legal instruments, which has the important benefit of restricting the scope of the law to commercial entities and actions as well as not requiring demonstration of IPR infringement (even though, according to various sources, the key problem for companies remains demonstrating the misappropriation). Considering trade secrets as intellectual property, on the other hand, would limit redress against broader unfair competition practices but would, on the other hand, enable their owners to sue whoever would acquire, use and disclose them without their authorisation, regardless of the reasons for the acquisition (the core problem with the current text, which prompted the most opposition). The Commission eventually followed this line of thinking, stopping short of creating new IP rights for trade secrets but granting the legal redress means associated, despite the additional advantages of the unfair competition framework as underlined by the Commission in its first response. The Commission's May 2011 communication on “A Single Market for Intellectual Property Rights” recognised that considering trade secrets as intellectual property was a real issue, concluding that “Considering the complexity of this issue and its various implications, the Commission needs to pursue its reflection and gather comprehensive evidence before taking a position on a possible way forward”. Indeed, whether trade secrets should be considered a form of intellectual property has been a matter of academic and judicial debate for a long time.

But in 2013, the Commission did not even consider unfair competition legislation harmonisation among the various scenarios it considered in its impact assessment. How did industry manage to convince the Commission to follow the IP route rather than the unfair competition one? When asked about this, the Commission answered, in perfect bureaucraspeak, that “Unfair competition law covers a broad area, most of which remains under national law. The Commission decided to make a targeted intervention, addressed at a specific problem. This is without prejudice to any future action that the Commission may decide to take on Unfair Competition Law, if justified.” The documents show a certain persistence in the messaging from lobby groups, with for instance the TSIC submitting comments to a public consultation on IP enforcement stating that “trade secrets are recognised in the EU as fully being part of IPRs and, as such, should not be treated differently from industrial property rights”. In July 2012, a TSIC member (an executive from DuPont) stated that the EU could “expressly include trade secrets as a form of IP protected by the directive on enforcement of IP rights”.

Could the TTIP dimension have played a role? An October 2013 joint letter from Business Europe, the National Association of Manufacturers (Business Europe's US counter-part) and the Transatlantic Business Council to the two politicians in charge of the TTIP negotiations in the EU and the US, K. De Gucht and M. Froman, explicitly demands that the two blocks “ensure that their respective trade secret laws contain the following core elements that make up a model and modern trade secret law relevant to the digital economy: - Expressly recognizes trade secrets as intellectual propertyin line with TRIPS Articles 1.2 and 39.”

According to a source familiar with the matter, Jean Bergevin, the head of the unit in charge, would have wanted to go for IP protection for trade secrets, fully in line with what industry wanted and further than what was eventually published. Why this was not done does not appear in the documents.

III. From Lobbying to Partnership: the Close Relationship Between the Commission, the Lobbyists and the Consultants

Its correspondence with business lobbyists shows that the Commission, once it had decided to initiate legislation on the matter, treated the lobbyists as partners, reaching out for their help every time it was needed, be it to obtain information or to lobby the other EU institutions. It actually even facilitated the work of the lobby groups by introducing them to each other along the way. Asked about why it did so and whether this could be a problem, the Commission simply answered that “The Commission is transparent about its contacts with other stakeholders interested in the same policy areas”.

3.1 A Coveted First Legal Study – Law Firms' Collective Interest in Trade Secrets Protection

From the first exchanges onwards, the TSIC, then represented by White&Case, sent to the Commission not only case studies (those from Alstom, Michelin and DuPont) but also legal briefings about trade secrets protection legislation in various EU Member States and abroad, in order to demonstrate the need for EU-wide legal harmonisation. The applicable civil and criminal provisions in the US and Japan in particular were detailed (trade secrets are considered a form of intellectual property in these two countries).

On September 30th 2010, an email from the TSIC to the Commission shows that things had not progressed very much there. The initial aim to have trade secrets mentioned in a 2010 European Commission communication on a single Market Act (“50 proposals for improving our work, business and exchanges with one another”)[8] did not succeed (the topic is not discussed at all in the paper), and a meeting with the Commissioner's cabinet showed that there was still little awareness of the issue at the Commissioner level ("One thing that was a little surprising was the issue of trade secrets seemed to be quite new to him [… ] is this a topic on which Mr XX has been briefed? In any event we left him a pack of information for review, but obviously briefing from within the Commission would be more useful").

However, a first element of good news for White&Case: the Commission took the decision to outsource (budget: 60,000€) a legal study to assess the legal situation among EU Member States, which was a job White & Case had already largely done on TSIC's behalf. Perhaps an opportunity to get paid for this work by the Commission, after having been paid by the TSIC members? A policy officer at the Commission was kind enough to tip the lobbyists: “I am sending you the preliminary version of the study, for you to see whether this would be something you would be willing to bid for" (email from the Commission to White&Case, 21st September 2010). However, there was a difficulty: the draft Invitation to Tender (ITT) “requires a statement that there are no conflicts of interest. We touched upon this last time but thought it would be good to discuss again.” Was this an issue because White & Case employees were acting as lobbyists at the same time on the same issue? We did not get any answer to this question.

In the end, White & Case was not chosen by the Commission, who chose another global law firm, Hogan Lovells. The document explaining this decision has been entirely redacted by the Commission, so it is not possible to know why the Commission chose one law firm and not the other. An October 15th 2010 email from White & Case refers to a “frank and open discussion” with the Commission, which might be related.

It is interesting though to see that Hogan Lovells, just like most corporate law firms, is not selling legal expertise on trade secrets to the Commission only. It is selling legal advisory and defence services on trade secrets to all potentially interested clients. The broad support for the Commission's initiative among corporate law firms is simple to understand: it adds a tool to the toolbox of services they can propose to their clients. On the other side of the Atlantic, for instance, the law firm Covington & Burling is acting as a lobbying consultant to a “Protect Trade Secrets Coalition” coalition of multinational companies with comparable goals to the TSIC. It is striking that the Commission uses consultants with such a structural interest in developing their own market.

The lobbying by White & Case on behalf of the TSIC continued in 2011, and in particular after a new head of unit, Jean Bergevin, was appointed in April 2011 to lead the work of the Commission on this file. I. Forrester, a lawyer at White & Case, used the opportunity to introduce him to a US academic specialised in trade secrets, R. Milgrim: “A friend of ours, Jean Bergevin, has been given a new job and a new task within the Commission, which is to consider the problems presented by stolen trade secrets” (email from White & Case to Milgrim, cc J. Bergevin, 1st July 2011). The introduction was followed by a detailed correspondence, which prompted the following remark by Forrester: “I am delighted to note that two talented persons are exchanging views and ideas fruitfully.” (email from White & Case to R. Milgrim and J. Bergevin, 28th July 2011).

3.2 Assessing the Economic Need for Trade Secrets Legal Protection

The economic survey assessing the importance of trade secrets for European companies is a key piece of information because it is the evidence on which the Commission based its demonstration that a legal harmonisation of trade secrets protection in the EU was needed. Its main finding that “86% of companies and research institutes participating in a recent survey considered trade secrets as an important tool for business and research bodies in the EU to protect their valuable information” is the first sentence of the impact assessment's executive summary. For this reason, the way it collected the evidence is very important, and in particular the questions asked.

3.2.1 "Policy-Based Evidence-Making"

One document is particularly interesting to understand how the European Commission sees its economic survey. It is a letter from Michel Barnier, then Commissioner for the Internal Market, sent to Business Europe's then director Philippe de Bück on May 16th 2012. It is worth quoting at length because it describes how the Commission is collecting the evidence it needs to demonstrate the necessity for the new legislation, as opposed to collecting evidence to assess this necessity:

“In order to complete the information necessary to evaluate the impacts of any future measure, my services have in the meantime commissioned a study on the economic impact of trade secrets. This seeks to provide a rigorous assessment of just how important their role is in the competitiveness of European businesses. It will include an EU wide survey involving the most concerned industries and my hope is that we will be able to demonstrate that all businesses in our services and knowledge based economy and in particular SMEs rely on trade secrets. In that manner we will demonstrate that the current fragmented legal framework for their protection undermines competitiveness and therefore investment and job creation in the Single Market. I sincerely hope that your organisation will continue to assist us in achieving this objective and am delighted to hear from my services of the excellent cooperation to date.”

The contract established in February 2012 between the Commission and the global law firm Baker & McKenzie, hired to complete the economic survey (cost: 400,000€), stipulates: “The study is aimed at allowing the Commission to make an informed assessment of the role of trade secrets and confidential business information as possible drivers for innovation, competitiveness and economic growth in the EU.”

The study's conclusions, in turn, appear perfectly aligned with the Commission's objectives:

“The Study describes the current fragmented scenario, its commonly perceived weaknesses and the widespread appetite for a harmonized approach. The final recommendations advocate for legislative initiative on trade secrets protection at the EU level and highlight the areas where intervention would be most beneficial in terms of balanced economic growth and competitiveness for the Internal Market”.

3.2.2 Helping the Lobbyists Lobby the Consultants

But the Commission was not the only one with an agenda for this survey's outcome. On 22nd of February 2012, two weeks after the contract for the economic survey was awarded to the Milan office of Baker & McKenzie, a legal officer at DG Internal Market obliged a TSIC request and sent them the contact details of the two lawyers in charge of leading the economic survey. In the following days, the TSIC, now represented by Hill & Knowlton and again by T. Tindemans among others, asked for a joint meeting with B&M and the Commission, which the Commission was happy to facilitate (it actually had to insist to convince B&M, as the contract stipulated a fixed number of meetings). The meeting eventually took place on March 22nd.

What was the nature of the following exchanges between the consultants and the lobbyists? Only documents where the Commission in is copy were obtained, but the interaction seems to have been intense.

A little too intense? Four days before the conference, on 25th of June 2012, an exchange between B&M lawyers and Bergevin points at a process possibly having gone out of hand. Following an email by B&M explaining their doubts about the idea of sharing the draft survey and methodology in advance with the conference's participants and explaining that TSIC and IFRA had already received it but would only be able to send comments after the conference for internal organisational reasons, Bergevin reacted strongly: “Apparently you have been testing the survey with certain companies and trade associations. These I understand have a revised version that we have not seen? Moreover you propose to wait for their reaction and as a consequence will not be able to present it to the conference because their internal procedures!!!! I find all of this very worrying. First you have a contract with us not certain interested industry groups. Secondly this approach is biased and totally lack transparency that we are all bound by. I would therefore insist that you transmit the revised questionnaire and a shortened version of the survey methodology no later than this evening”.

This was immediately followed by an email from another (more senior) lawyer at B&M, explaining that it was all a misunderstanding and that “I perfectly understand your point and agree on the absolute need to keep distance from interested industry groups. Be assured that we are well aware that this is the name of the game and that you, the Commission, are the only referee. In particular, needless to say, we don't even dream of playing any tricks with trade associations: besides any other consideration, we would never put our reputation at risk. […] We may hear comments from multiple parties (actually this is the purpose of our exercise), but in no event we would take account of any “suggestion” possibly received from the field.”

On 16th July 2012, two weeks after the conference where the survey methodology was presented, the TSIC sent an email to Baker & McKenzie with a long list of comments, making 16 specific suggestions for change. On 19th July 2012, an email was sent by a consultant working for IFRA (C. Laroche) to F. Gaudino, a lawyer at Baker & McKenzie, with editing suggestions (an IFRA colleague followed up with edits in track changes in the draft survey itself the next day, with some common ones with the TSIC's). On the same day, Ms Gaudino had sent an email to both IFRA and the TSIC to share with them a revised version of the questionnaire, saying that “we tried to accommodate your suggestions as well as of all the other stakeholders who provided feedback”. A comparison with the final survey document by the Bureau of Investigative Journalism shows that half the suggestions made by the TSIC were taken on board by B&M.

This, however, is seen as unproblematic by the Commission. “As part of the study, it was foreseen to present a draft questionnaire for the survey at the June 2012 Conference organised by the Commission with the intention of receiving feedback from interested stakeholders. The Conference was public and open to all. On the basis of that feedback and the Commission feedback, Baker and McKenzie refined the questionnaire for the survey.”

3.2.3 "Debating" Trade Secrets

So, on 29th June 2012, the Commission organised a public conference on trade secrets, whose main purpose was indeed to present the preliminary findings and methodology of the B&M economic survey. But while the Commission presents the conference as “A Commission Conference” on its website, this is somewhat exaggerated: the conference was jointly organised with Baker & McKenzie, as foreseen by their contract, and all the lobbyists and consultants competed in courtesies to have their own representative on the panels. The competition became so tough that Baker & McKenzie even complained at some point that they were not getting all the visibility they had expected from the contract's terms: “the conference is one of the Project' tasks and visibility, not money, is supposed to be the reward for us” (email from B&M to the Commission, 5th June 2012).

Baker & McKenzie was still very much in a leading position during the conference, flying in a US economist from the firm (Dr. Thomas S. Respess III) and presenting their work. They also brought in the only non-industry external speaker of the event, an Italian academic, to present the methodology of the survey.

From the Commission's point of view, there were clear advantages in organising a public event with interested lobbyists: it took less than 30 minutes to confirm the participation of three industry speakers from the TSIC. The usual suspects with their usual examples: Alstom with a power plant in Bulgaria, Michelin with its prototype tire stolen in Japan in 2005 during a rally, and DuPont with various trade secrets related to kevlar manufacturing being stolen.

Besides Commission officials, other speakers and panellists included the two Hogan Lovells lawyers who wrote the study on the existing legal framework for trade secrets protection in the EU for the Commission, four other law firms (Bardehle Pagenberg, Gleiss Lutz, Jones day and IIPTC), and the CEO of a start-up (Fractus SA). The minutes of the conference indicate that the potential impact of the legislation on non-industry sections of society, in particular journalists, whistleblowers or workers, was not discussed (employees were only referred to within examples of misuse or theft of trade secrets, so as potential threats).

3.2.4 Coordinating Media Outreach

On the eve of the conference, the TSIC sent the Commission a list of journalists who had expressed interest in covering the conference or at least receiving a press release (media titles mentioned include Europolitics, Bloomberg, European Voice, La Tribune, Dow Jones, IP Watch, Financial Times Deutschland and Mlex – AFP, Financial Times, Agence Europe and Les Échos were also said to be interested but probably too busy for coverage), asking “Thank you for letting us know if there will be a press statement from your side?”

The Commission replied with a copy of the draft official press release (midday express, in EU jargon) to be published the next day. To which the TSIC replied sending its own.

Asked whether coordinating press releases and media outreach with lobby groups was appropriate, the Commission answered the following:

“The conference held in 29 June 2012 ensured an open public debate on the legal protection of trade secrets, their economic relevance and the survey to industry, and stimulate participation of all stakeholders that had not yet been expressing any views on the subject. Strong press coverage is one important way of capturing the public’s attention and stimulating such debate.”

3.2.5 Business Europe to the Rescue to Provide Industry Participation

A few months later, on November 15th 2012, the Commission called Business Europe to the rescue again: the survey foreseen in the study needed business participation within a short deadline. The email explained that:

“In order for the Commission to be in a position to consider, prepare and propose an initiative on legal protection of trade secrets against misappropriation, a high rate of participation in the survey is of great importance. However, the timeline for participation in the survey is very short, namely until 3 December.

We think that Business Europe can play an important role in mobilising companies to engage in this exercise. Please find attached a link to our webpage where the survey is announced.

We will also launch in a few weeks a public consultation on the topic, and once again a high level of participation will be crucial in order to gather representative data.”

This latter demand was also important. The public consultation launched by the Commission in December 2012 was the first moment non-industry actors engaged with the file, in a marginal (only two groups, the Pirate Party and a French group called Collectif Roosevelt) but meaningful way (75% of individual citizens who took part in it opposed the very principle of issuing new legislation on trade secrets protection).

But it wasn't thanks to DG Internal Market: on the 11th December 2012, it sent the TSIC the link to the public consultation, insisting that this is “open to all citizens and all sorts of organisation (business organisations, unions, consumers etc.). It would of course be important to have the views of companies from all sizes, sectors and different geographic locations. I would therefore ask you to inform the members of the TSIC [...].” It then sent a similar email to all the participants in the June conference. Again, pro-active outreach to business groups only. The Commission responded to our questions on the complete absence of non-industry groups until the public consultation, and their very limited activity until autumn 2014, by pointing to the fact that it had published numerous documents and communications about its work and that "these organisations had ample opportunity to engage with its services had they wished to."

3.3 Lobbying Member States and the European Parliament

From then on, the main features of the project being more or less settled – pending the finalisation of the economic survey (eventually published in July 2013), the main priority of the “partnership” composed of lobby groups and the small team at the Commission is to ensure that the rest of the Commission supports their proposal, and that there is enough support at the two other EU legislators, the Council (Member States) and the European Parliament.

- On 12th October 2012, the TSIC enquires whether the trade secrets file will be included in the Commission's 2013 work programme in order to have “a more natural hook with Member States”. She adds that she is also going to lobby the cabinets of the Enterprise and Research Commissioners. The policy officer answers that he doesn't know yet.

- On the 16th October 2012, IFRA invites Bergevin to participate in a meeting of the SME Intergroup in the European Parliament, dedicated to “The Need of a Better Protection of Trade Secrets for SMEs”.

- On 13th November 2012, the same person at TSIC informs the policy officer that she “had a very good meeting” with Tajani's cabinet (Commissioner for Enterprise) who is “entirely supportive of DG Internal Market's action in this area”.

- On 20th February 2013, IFRA tries a bold move: on the day before a meeting planned earlier, it sends Bergevin a draft directive text, “a few thoughts in the shape of a legislative draft around innovation and know-how protection”. The text is structured like a template Commission proposal. Too bold? Bergevin answers that “for obvious reasons I cannot accept that my team discusses a legislative proposal with industry. For this reason, and given our workload, I prefer at this stage to cancel the meeting that had been set tomorrow.” (both quotes originally in French)

- On 25th February, IFRA sends DG Internal Market a socio-economic impact analysis of fragrance technologies, which proposes a monetary evaluation of the impact of trade secrets loss. Up to €15bn in GVA and 300,000 jobs would be at risk, it says.

- On 14th March 2013, CEFIC sends “new documents including facts & figures of interest with regard to trade secrets misappropriation”.

- On 13th March 2013, in a similar fashion as IFRA and CEFIC, the TSIC sends an email to them to share the results of an “internal interview exercise” meant to get data on the cross border and monetary dimension of the issue. This, in the hope that “this will help you in your current work, ahead of your end of March deadline with regards to the IAB”.

This is very important: the Impact Assessment Board (IAB) is the internal policy evaluation body of the Commission; in other words, the lobby groups are helping DG Internal Market pass the internal assessment procedures of the Commission.

- On 24th April 2013, Charles Laroche, consultant for IFRA, wrote to Bergevin to ask him to join a roundtable organised on the issue by the Kangaroo group and hosted by MEPs Edith Herczog and with the participation of MEP Malcolm Harbour. From then on, the email correspondence between the TSIC and the Commission appears more limited. The TSIC feeds in background readings and articles; receives a notification that the economic survey is being published in July 2013.


On the 28th November 2013, the day the Commission published its legislative proposal, the TSIC, via T. Tindemans, sent the following email to Bergevin and his colleagues:

Subject: “Congratulations!”


Allow me to sincerely congratulate you with the adoption of the Commission proposal. There’s a lot of work ahead, but this is a milestone, and your efforts will bear fruit.




1. All documents referred to in this report that are not online are available on request at CEO.

2. Nick Mathiason, from the Bureau of Investigative Journalism in London, and Martine Orange, from Mediapart, in France

3. We thank on the other hand the person who organised them

4. H&K is a subsidiary of marketing and PR giant WPP.

5. H&K's full explanation: “Our previous entry did not take into account (a) de minimis principles excluding employees spending only a minimal percentage of their time on the activities covered by the register (b) double accounting – as the time declared for the 14 additional individuals is covered by their individual company or association entries, given that they are neither TSIC or Hill+Knowlton Strategies’ employees. The figure quoted of five full-time-equivalent employees is based on an automatic calculation by the Transparency Register and is incorrect. This has now been corrected.”

6. The European Semiconductor Industry Association (ESIA) was not included in the access to documents request. It is not listed in the EU Lobbying Transparency register.

7. The letters between the three industry trade associations and Catherine Day's office were obtained by journalist Stéphane Horel via an access to documents request.

8. Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions, “Towards a Single Market Act. For a highly competitive social market economy 50 proposals for improving our work, business and exchanges with one another”. 

News Mon, 25 May 2015 00:00:00 -0400
Not Lovin' It: Thousands Storm McDonald's Head Quarters to Protest Low Wages

In the largest protest of its kind, thousands of McDonald’s employees stormed the company’s headquarters on May 20 to demand that it stop spending millions manipulating stock prices, and start paying workers a living wage. McDonald’s cashiers and cooks came to the company’s shareholders meeting, at its corporate headquarters in Oak Brook, Illinois. More than 100 were arrested for refusing to leave the property.

Marching with them were Service Employees International Union president Mary Kay Henry; Moral Mondays movement leader Rev. William Barber; Rev. Marilyn Pagán Banks of North Side Power/A Just Harvest in Chicago, Illinois; and Rev. Rodney E. Williams of the Swope Parkway United Christian Church in Kansas City, Missouri.

The company, which banned media from its shareholders meeting on May 19, responded by shutting down its corporate headquarters.

 McDonald’s is already under fire worldwide for dodging €1 billion in corporate taxes in Europe, and violating labor laws in Brazil. Now its in hot water back home for a share buyback scheme designed to inflate the company’s stock price, which means more money in the already well-lined pockets of shareholders and company executives. The company recently announced plans to return $18 to $20 billion to shareholders by 2016, through dividends and share buybacks.

Thousands of workers swarmed the company’s headquarters to protest McDonald’s spending nearly $30 billion manipulating stock prices instead of paying its workers a livable wage. Some carried blown-up copies of their paychecks to illustrate how little McDonald’s invests in its workers vs. how much is spends repurchasing shares.

Christine Owens, executive director of the National Employment Law Project released a statement in support of the protest:

“McDonald’s workers are rightly bringing the fight for $15 an hour and the right to form a union to their employer’s doorstep. For too long, the McDonald’s business model has served to enrich executives and short-term shareholders at the expense of workers and taxpayers. It’s time McDonald’s face the people who fry its fries and serve its customers but who are forced to pay for groceries with food stamps because McDonald’s does not pay them enough to feed their families.

“In the last decade, McDonald’s spent $30 billion on share buy backs—a widely discredited and short-sighted strategy to pump up the value of its stock. Spending billions on buybacks may provide short-term payoffs for a handful of rich investors, but it does nothing to benefit the company’s hundreds of thousands of employees, who are barely making ends meet. In fact, it misplaces resources that would be better used investing in growing the company or raising worker pay.

“More than half of fast-food workers are forced to rely on public assistance to support themselves and their families. McDonald’s costs taxpayers $1.2 billion every year in public assistance. McDonald’s is a $5 billion global corporation; its employees should not need to rely on food stamps, and taxpayers should not be subsidizing its profits.

“Today, as the workers protested, New York Gov. Andrew Cuomo’s Wage Board held its first hearing to significantly raise pay for fast-food workers across the state. And just yesterday, Los Angeles became the biggest city yet to vote for a $15 minimum wage, which is fast becoming a new baseline for workers across the country. The McDonald’s workers who are standing up and fighting for $15 and union rights are winning. This fight is not theirs alone—all of us have a stake in it. And when they finally get $15, all of us will be better off.”

The protest comes on the heels of the largest-ever strike against the fast food industry last month, when workers joined walkouts in 236 cities, as well as strikes and protests in 40 countries.

News Mon, 25 May 2015 00:00:00 -0400
Farmers Fight Real Estate Developers for Kenya's Most Prized Asset: Land

2015.5.25.Kenya.1David Njeru, a farmer from central Kenya, attends to his cabbages. This community is at risk of being displaced from their land by powerful real estate developers. (Photo: Miriam Gathigah/IPS)

Ngangarithi, Kenya - Vegetables grown in the lush soil of this quiet agricultural community in central Kenya’s fertile wetlands not only feed the farmers who tend the crops, but also make their way into the marketplaces of Nairobi, the country’s capital, some 150 km south.

Spinach, carrots, kale, cabbages, tomatoes, maize, legumes and tubers are plentiful here in the village of Ngangarithi, a landscape awash in green, intersected by clean, clear streams that local children play in.

Ngangarithi, home to just over 25,000 people, is part of Nyeri County located in the Central Highlands, nestled between the eastern foothills of the Abadare mountain range and the western hillsides of Mount Kenya.

In the early 20th century, this region was the site of territorial clashes between the British imperial army and native Kikuyu warriors. Today, the colonial threat has been replaced by a different challenge: real estate developers.

Ramadhan Njoroge, a resident of Ngangarithi village, told IPS that his community’s worst fears came to life this past January, when several smallholder families “awoke to find markers demarcating land that we had neither sold nor had intentions to sell.”

The markers, in the form of concrete blocks, had been erected at intervals around communal farmland.

They were so sturdy that able-bodied young men in the village had to use machetes and hoes to dig them out, Njoroge explained.

It later transpired that a powerful real estate developer in Nyeri County had placed these markers on the perimeters of the land it intended to convert into commercial buildings.

The bold move suggested that the issue was not up for debate – but the villagers refused to budge. Instead, they took to the streets to demonstrate against what they perceived to be a grab of their ancestral land.

“We cannot have people coming here and driving us off our land,” another resident named Paul Njogu told IPS. “We will show others that they too can refuse to be shoved aside by powerful forces.”

“I was given this land by my grandmother some 20 years ago,” he added. “This is my ancestral home and it is also my source of livelihood – by growing crops, we are protecting our heritage, ensuring food security, and creating jobs.”

But Kenya’s real estate market, which has witnessed a massive boom in the last seven years, has proven that it is above such sentiments.

Those in the business are currently on a spree of identifying and acquiring whatever lands possible, by whatever means possible. It is a lucrative industry, with many winners.

The biggest losers, however, are people like Njoroge and Njogu, humble farmers who comprise the bulk of this country of 44 million people – according to the Ministry of Agriculture, an estimated five million out of about eight million Kenyan households depend directly on agriculture for their livelihoods.

Land: The Most Lucrative Asset Class

Last September, Kenya climbed the development ladder to join the ranks of lower-middle income countries, after a rebasing of its National Accounts, including its gross domestic product (GDP) and gross national income (GNI).

2015.5.25.Kenya.2This woman, a resident of Ngangarithi village in central Kenya, uses fresh water from the surrounding wetlands to irrigate her crops. (Photo: Miriam Gathigah/IPS)

The World Bank praised the country for conducting the exercise, adding in a press release last year, “The size of the economy is 25 percent larger than previously thought, and Kenya is now the fifth largest economy in sub-Saharan Africa behind Nigeria, South Africa, Angola and Sudan.”

According to the Bank, “Economic growth during 2013 was revised upwards from 4.7 percent to 5.7 percent [and] gross domestic product (GDP) per capita changed overnight, literally, from 994 dollars to 1,256 dollars.”

The reassessment, conducted by the Kenyan National Bureau of Statistics, revealed that the real estate sector accounted for a considerable portion of increased national earnings, following closely on the heels of the agricultural sector (contributing 25.4 percent to the national economy) and the manufacturing sector (contributing 11.3 percent).

David Owiro, programme officer at the Institute of Economic Affairs (IEA), a local think tank, told IPS, “Kenya’s land and property market is growing exponentially.”

His analysis finds echo in a report by HassConsult and Stanlib Investments released in January this year, which found that the scramble for land in this East African nation is due to the fact that land has delivered the highest return of all asset classes in the last seven years, up 98 percent since 2007.

Land prices in the last four years have risen at twice the rate of cattle and four times the rate of property, while oil and gold prices have fallen over the same period, researches added.

Advertised land prices have risen 535 percent, from an average of 330,000 dollars per acre in 2007 to about 1.8 million dollars per acre today. Thus, equating land to gold in this country of 582,650 sq km is no exaggeration.

According to Owiro of the IEA, a growing demand for commercial enterprises and high-density housing in the capital and its surrounding suburban and rural areas is largely responsible for the price rise.

Government statistics indicate that though the resident population of Nairobi is two million, it swells during the workday to three million, as workers from neighbouring areas flood the capital.

This commuter workforce is a major driver of demand for additional housing, according to Njogu.

As a result, two distinct groups who see their fortunes and futures tied to the land seem destined to butt heads in ugly ways: real estate developers and small-scale farmers.

What Is Sustainable?

While the land rush and real estate boom fit Kenya’s newfound image as an economic success story, they run directly counter to the United Nations’ new set of Sustainable Development Goals (SDGs), due to be finalised in September.

The attempt to seize farmers’ land in Ngangarithi village reveals, in microcosm, the pitfalls of a development model that is based on valuing the profits of a few over the wellbeing of many.

2015.5.25.Kenya.3A farmer shows off his aloe plants, popular among farming families in central Kenya for their medicinal value. (Photo: Miriam Gathigah/IPS)

Farmers who have lived here for generations not only grow enough food to sustain their families, they also feed the entire community, and comprise a vital link in the nation’s food supply chain.

Taking away their land, they say, will have far-reaching consequences: central Kenya is considered one of the country’s two breadbaskets – the other being the Rift Valley – largely for its ability to produce plentiful maize harvests.

In a country where 1.5 million people experience food insecurity every year, according to government statistics cited by the United States Agency for International Development (USAID), pushing farmers further to the margins by separating them from their land makes little economic sense.

Furthermore, encroachment by real estate developers into Kenya’s wetlands flies in the face of sustainable development, given that the U.N. Environment Programme (UNEP) has identified Kenya’s wetlands as ‘vital’ to its agriculture and tourism sectors, and has urged the country to protect these areas, rich in biodiversity, as part of its international conservation obligations.

For Njogu, the land rush also represents a threat to an ancient way of life.

He recounted how his grandmother would go out to work on these very farmlands, decades ago: “Even with her back bent, her head almost touching her knees, she did all this for us,” he explained.

“When she became too old to farm, she divided her land and gave it to us. What if she had sold it to outsiders? What would be the source of our livelihood? We would have nowhere to call home,” he added.

Already the impacts of real estate development are becoming plain: the difference between Ngangarithi village and the village directly opposite, separated only a by a road, has the villagers on edge.

“On our side you will see it is all green: spinach, kale, carrots, everything grows here,” Njogu said. “But the land overlooking ours is now a town.”

Various other villagers echoed these sentiments, articulating a vision of sustainability that the government does not seem to share. Some told IPS that the developers had attempted to cordon off a stream that the village relied on for fresh water, and that children played in every single day, “interacting with nature in its purest form,” as one farmer described.

“I am not fighting for myself but for my children,” Njogu clarified. “I am 85 years old, I have lived my life, but my great-grandchildren need a place to call home.”

Villagers’ determination to resist developers has caught the attention of experts closer to the policy-making nucleus in Nairobi, many of whom are adding their voices to a growing debate on the meaning of sustainability.

Wilfred Subbo, an expert on sustainable development and a lecturer at the University of Nairobi, told IPS that a strong GDP is not synonymous with sustainability.

“But a community being able to meet its needs of today, without compromising the ability of its children to meet their own needs tomorrow, [that] is sustainable development,” he asserted.

According to Subbo, when a community understands that they can “resist and set the development agenda, they are already in the ‘future’ – because they have shown us that there is an alternative way of doing business.”

“Land is a finite resource,” Subbo concluded. “We cannot turn all of it into skyscrapers.”


Edited by Kanya D’Almeida

This reporting series was conceived in collaboration with Ecosocialist Horizons

News Mon, 25 May 2015 00:00:00 -0400
"There's Nothing Left": Women's Future Under the Conservatives in the United Kingdom

The United Kingdom went to the polls on Thursday 7th May. The second polls closed at 10PM, the BBC were able to reveal the results of their exit poll. The projected outcome - a huge swing to the incumbent Conservatives, the decimation of their coalition partners the Liberal Democrats, and a sizeable loss of seats for the Labour party countered all previous opinion polling, which repeatedly projected a dead heat between Labour and the Conservatives, making a hung parliament seem a certainty for the second time in five years. Twelve hours later, as the results cascaded in, the BBC’s poll looked too cautious in its predictions for the Conservatives. After an election campaign in which every politician, journalist and analyst was confident the UK would see a hung parliament, David Cameron had secured a majority, and returned to Downing Street, unfettered by his former coalition partners.

When this reconfigured parliament sits for the first time, a change in make up will be evident amongst the new faces. More Conservatives, more Scottish Nationalists, but also more women. The number of women in the House of Commons rose by a third after all seats were returned. It’s a cheering statistic on its own, but one that merits more scrutiny. Of the 650 seats elected last Thursday, nearly 100 had all male candidates on the ballot paper. Even with the significant hike in the number of women MPs, the proportion still dwindles below a third - 191 women in parliament, compared to the 147 elected at the last election.

Of the big name politicians who lost, a large proportion were men, but for the Liberal Democrats, the loss of Jo Swinson and Lynne Featherstone means of their eight remaining politicians, none are women. Esther McVey, the Conservatives’ employment minister lost her Merseyside seat, and has been replaced by Priti Patel, albeit still in a male dominated cabinet.

But numbers aside, the outlook for women in the next government is far bleaker. Five years of cuts and austerity hit women in Britain far harder than men, with 80 per cent of public spending cuts affecting women. The Conservatives ran their campaign on an economic platform, arguing that they were the only party to continue to reduce the country’s deficit. Whether a deficit reduction programme is necessary or desirable depends on your political outlook, but both the Conservatives and Labour bought the neoliberal argument that austerity was the only option throughout the campaign.

Now in office, and with a majority, the Conservatives have to fulfil their election commitment to cut £12bn from the welfare budget - a sum that amounts to a 10 per cent cut in all non-pensioner spending. For those reliant on welfare benefits to make ends meet, the disabled, the low-waged, the families in poverty, this is almost unthinkable. The exponential rise in food bank demand, as a result of sanctions and stagnant wages, was arguably the most alarming fallout from the coalition’s time in office. Further cuts will not just entrench, but deepen suffering.

The Conservatives were curiously loathe to explain where the cuts would come from. To cut £12bn from the welfare budget requires some very deep cuts to benefits that have already been squeezed and reordered. Unconvincing mutterings from Conservative Party headquarters claimed the cuts would be achieved through behaviour change - but this is a canard, that is very revealing of the Conversative attitude towards poverty. People claim benefits because they need to - either their employer pays wages too low to live on and the state is forced to subsidise these business by paying benefits to their staff, or people are unable to work and feed their children, and need cash benefits to make ends meet. A ‘change in behaviour’ won’t stop the need for benefits. Someone disabled won’t suddenly decide they can work after all. A young mother won’t wake up and decide she can afford to work, pay her rent and bills and shell out for extortionate childcare purely by force of will.

Documents leaked to the Guardian newspaper mooted the shape of cuts considered by the Department for Work and Pensions. They include capping child benefit at two children, removing housing benefit for people under the age of 25, and making it harder for sick people to claim state aid when out of work. Some floated cuts affect women directly, such as making employers contribute more to the cost of statutory maternity pay, or as an alternative, abolishing it entirely.

Often women’s rights are seen as a continuum. Once fought and gained, it can be easy to assume those rights are secure, accepted as a societal duty and more, and the next battle can be fought. But threats to maternity pay can’t be seen as anything other than an attack on women’s position - if women have to choose between reproducing and working, we are intrinsically seen as second class citizens. During the last parliamentary term, huge cuts to legal aid and the introduction of fees for employment tribunals attacked women’s right to work free from discrimination. Women sacked for getting pregnant, or sexually harassed in the workplace only had access to justice if they also had access to capital. The poorest women were hung out to dry - this will only be compounded by attacks on maternity pay.

For women who do have children, and can’t find work, the leaked documents also propose forcing single parents, predominantly women, on benefits to seek work when their youngest child reaches the age of three. Currently, single parents have a duty to seek work once their youngest child reaches five years old, the age when they start full time education. At the age of three, any mother seeking work will need to find a job that pays for the extortionate childcare costs necessary for her to start work.

But as well as fresh cuts, the poorest women in the UK will experience more of the same. And “business as usual” for women in the United Kingdom since the recession has meant deep cuts and entrenched inequality. Prior to the election result, the abolition of the bedroom tax looked quietly imminent. The Labour party had promised to abolish it if elected, and Liberal Democrats had come out against it, meaning even a Conservative coalition government may have had to agree to a deal to scrap the controversial policy. Instead, the Conservatives will leave it in place. One in four households affected are single parent families, predominantly women, losing around £800 a year in benefit, and being forced deeper and deeper into debt and poverty. In total, 60 per cent of all people affected by the bedroom tax are women. Over 340,000 of the families hit by the Bedroom Tax are single women, compared to 160,000 single men and 160,000 couples. For the two years the policy has been in place, many households have just about managed to keep their heads above water, through applying for emergency grants from councils, to selling belongings. But those survival tactics only last so long: the discretionary housing payments for councils are temporary payments that are rarely permitted for longer than one or two years. On visiting a woman in Bradford affected by the bedroom tax, it was stark how bare her home was: barely any furniture, no electronics, just large, sparsely decorated rooms in an area with no smaller homes to move into. “I’ve sold it all,” she explained. “There’s nothing left.”

Equally, the rollout of Universal Credit - a much botched consolidation of multiple benefit payments - will continue. Many women’s groups and domestic violence charities have raised concern about the policy, which pays benefits to one person in a household. The potential for financial abuse and manipulation is heightened as a result: for women at risk of abuse, having all benefits paid to your partner leaves you completely financial dependent. The policy is a gift to abusers, and overlooks the many reasons benefits were paid directly to women for so long.

Breaking down the statistics, of the British population living in relative poverty, 40 per cent are women, and 23 per cent are children. Five years of the worst cuts since Margaret Thatcher’s government saw many people clinging desperately to a semblance of a life. A Conservative majority government promising deeper cuts that Thatcher looks set to rip that away, leaving a lost generation of women disenfranchised and alienated by poverty.

When you speak to the women affected, two things are stark - the anger and the fact that they are very aware that, contrary to right-wing ideology, poverty is neither something that passively happens to an individual, or a symptom of personal and moral failings. It is structural and economic violence inflicted on a section of society. The attempted atomisation of the poorest in society may not work though - when individuals reach a breaking point, rather than give up, they often fight back. Five years of cuts has pushed the women’s sector and the poorest women to the brink. Further cuts may act as the touch paper for wider resistance and fightback.

Opinion Mon, 25 May 2015 00:00:00 -0400
Success! Los Angeles Votes to Raise Minimum Wage to $15

The Los Angeles City Council approved a minimum wage hike to $15 per hour by 2020 in a preliminary vote that found only one of fifteen members dissenting.

Los Angeles currently has a $9 per hour minimum wage. The new measure raising the wage to $15 must return to the council for final approval.

Care2 teamed with LA Raise the Wage to petition the city council for a minimum wage increase, gathering thousands of signatures for the members’ consideration.

Like other cities who have implemented recent wage increases, the process will take place in increments over the defined period of years. According to Reuters, City Councilman Curren Price Jr. prefaced the preliminary vote by saying, “We are embarking upon, I think, the most progressive minimum wage policy anywhere in the country.”

ThinkProgress highlights that Los Angeles is the largest city in the country to move toward a $15 minimum wage. Seattle and San Francisco are the other largest regions to adopt that wage level. The highest new wage in the country is held by Emeryville in California, where minimum earners will be making nearly $16 an hour by 2019.

News of the Los Angeles wage hike comes alongside congressional Democrats’ new bill to raise the federal minimum wage to $12 per hour by 2020. The current federal minimum wage is only $7.25 per hour, an amount that couldn’t realistically support a single individual in many U.S. localities.

Naturally, many Republican critics of minimum wage increases cite fears of layoffs in their resistance to raising workers’ pay. But the Congressional Budget Office (CBO) data actually shows that raising the minimum wage just to $10.10 has a projected positive impact on 95 percent of workers and results in $2 billion of real income growth.

Los Angeles is positioning itself as a national leader in the fight for increased worker wages.

Will New York City step up next?

News Mon, 25 May 2015 00:00:00 -0400
Bernie Sanders Takes It to Wall Street With Financial Transactions Tax

2015.5.25.Sanders.mainSen. Bernie Sanders (I-Vermont), who recently announced he is seeking the Democratic presidential nomination, speaks during a news conference on Capitol Hill in Washington, May 6, 2015. (Photo: Zach Gibson/The New York Times)

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Last week Bernie Sanders, the Senator from Vermont and only announced challenger to Hillary Clinton for the Democratic nomination, took a strong stand for everyday people. He proposed a financial transactions tax (FTT), effectively a Wall Street sales tax, and to use the revenue to make public colleges tuition free.

While making college affordable to low and middle income families is important, the proposal for an FTT is a real game changer. There is no single policy that would have anywhere near as much impact in reforming the financial sector. A FTT would effectively impose a sales tax on stocks and other financial assets, so that speculators have to pay a tax on their trades, just like people who buy shoes or clothes.

There are three points people should understand about a FTT. The first is that it can raise an enormous amount of money. A FTT could be imposed at different rates. Sanders proposed following the rate structure in a bill put forward by Minneapolis Congressman Keith Ellison. Eleven countries in the European Union are working to implement a set of FTTs that would tax stock trades at a rate of 0.1 percent and trades of most derivative instruments at the rate of 0.01 percent.

Extrapolating from a recent analysis of the European proposal, a comparable tax in the United States would raise more than $130 billion a year or more than $1.5 trillion over the next decade. This is real money; it dwarfs the sums that have dominated most budget debates in recent years. For example, the Republicans had been trying to push through cuts to the food stamp program of $40 billion over the course of a decade. The sum that can be raised by this FTT proposal is more than thirty times as large. The revenue from a FTT could go far toward rebuilding the infrastructure, improving the health care system, or paying for college tuition, as suggested by Senator Sanders.

The second point is that Wall Street will bear almost the entire cost of the tax. The financial industry is surely already paying for studies showing the tax will wipe out the 401(k)s held by middle income families. This is nonsense. Not only is the size of the tax small for anyone not flipping stock on a daily basis, research indicates that most investors will largely offset the cost of the tax by trading less. 

Most research shows that trading volume falls roughly in proportion to the increase in transaction costs. This means that if a FTT doubles the cost of trading then the volume of trading will fall by roughly 50 percent, leaving total trading costs unchanged. Investors will pay twice as much on each trade, but have half as many trades. Since investors don’t on average make money on trades (one side might win, but the other loses), this is a wash for the investor.

While most middle income people don’t directly trade the money in their retirement accounts, they do have people who manage these funds. The research means that the fund managers will reduce their trading, so that the total costs of transactions that are passed on to the investor remain roughly constant. This means that the financial industry will bear almost the entire cost of the tax in the form of reduced trading volume.

This gets to the last point: a smaller financial industry is a more efficient financial industry. The purpose of the financial industry is to allocate money from savers to companies that want to finance new investment. As the industry has exploded in size over the last four decades there is no reason to believe that it has gotten better in serving this basic function. In fact, the stock bubble at the end of the 1990s and the housing bubble in the last decade might suggest that it has gotten worse.

A study from the Bank of International Settlements and more recent research from the International Monetary Fund find that a bloated financial sector slows growth. An oversized financial sector pulls resources away from more productive sectors of the economy. People who could be engaged in biological research or developing clean technologies are instead employed on Wall Street designing computer programs to beat other traders by a microsecond to garner profits at their expense. A FTT will make much of this activity unprofitable, encouraging people to turn to more productive work.

In short, a FTT is a great way to raise large amounts of money to meet important public needs. It will come almost entirely at the expense of the financial industry and should strengthen the economy. We now have one presidential candidate who is prepared to support a strong FTT. Are there others?

News Mon, 25 May 2015 00:00:00 -0400
"Incommunicado" Forever: Gitmo Detainee's Case Stalled for 2,477 Days and Counting

Even though the torture was over, Abu Zubaydah's ordeal was just beginning. For nearly a decade, he's been shuttled around the world and held in legal limbo - even as hundreds of detainees have been transferred or released.

2015.5.25.Gitmo.mainUS Army Military Police escort a detainee to his cell in Camp X-Ray at Naval Base Guantanamo Bay, Cuba, during in-processing to the temporary detention facility on January 11, 2002. (Photo: Mate 1st Class Shane T. McCoy via Wikimedia Commons)

Since being seized in a raid in Pakistan in 2002, Abu Zubaydah has had his life controlled by American officials, first at secret sites, where he was tortured, and since 2006 in a small cell in Guantanamo Bay, Cuba. And, thanks to one of the strangest, and perhaps most troubling, legal cases to grow out of the War on Terror, it appears he’s not going to be leaving anytime soon—which was exactly the plan the CIA always wanted. Not even his lawyers understand what’s transpired behind closed doors in a Washington, D.C., courtroom.

In June of 2008, the Supreme Court ruled that detainees at Guantanamo had the right to challenge their imprisonment in federal court and that their cases should be handled “promptly’’ by the judicial system. The next month, lawyers for Abu Zubaydah, a detainee whose torture and waterboarding in secret prisons was among the most notorious of the Bush years, filed a lawsuit in federal court challenging his detention.

The progress of that case has been anything but prompt. While more than 100 Guantanamo detainees have been released since then, and the military tribunals of even more high-profile detainees like 9/11 mastermind Khalid Sheikh Mohammed are moving forward in Guantanamo’s courtrooms, the federal judge hearing Zubaydah’s case has failed to rule on even the preliminary motions.

The seemingly intentional inaction has left even experienced court observers baffled. Richard W. Roberts, the U.S. District court judge handling the suit, is not a particularly slow-moving judge. His median time for resolving entire cases is slightly over two years; Zubaydah’s initial plea has already been pending 6 years 9 months and 12 days.

Because the entire file has been kept secret, it’s not possible to know why Roberts, who is the chief judge of the D.C. circuit, has let Zubaydah’s case languish. But this much is clear: Keeping Zubaydah from telling his story is exactly what the CIA wanted from the moment it began to torture him. And it’s exactly what they promised they’d do in 2002 during one of the darkest chapters of the War on Terror. (He was one of the first al-Qaeda suspects to face the harsh new regime implemented by the CIA following 9/11—a regime that FBI agents at the scene tried to prevent.)

Soon after the agency’s contractors began their program of “enhanced interrogation’’ at the secret black site in Thailand – placing him in a coffin-size box; slamming him against wall; depriving him of sleep; bombarding him with loud music; as well as waterboarding – they sent an encrypted cable to Washington.

The CIA interrogators said that if Zubaydah died during questioning, his body would be cremated. But if he survived the ordeal, the interrogators wanted assurances that he would “remain in isolation and incommunicado for the remainder of his life.”

Senior officials gave the assurances. Zubaydah, a Saudi citizen, “will never be placed in a situation where he has any significant contact with others and/or has the opportunity to be released,” the head of the CIA’s ALEC Station, the code name of the Washington-based unit hunting Osama bin Laden, replied. “All major players are in concurrence,” the cable said, that he “should remain incommunicado for the remainder of his life.”

The decision to hold Zubaydah “incommunicado’’ was disclosed by the Senate report on torture, which was released last December. But the judicial inaction on his case has received virtually no public attention.

In all, Roberts has failed to rule on 16 motions, 13 of which have been filed by Zubaydah’s lawyers. Several of those allege misconduct by the government.

Roberts’ judicial inaction runs the gamut: Zubaydah’s motion for an un-redacted copy of his own diary, which the government seized, has sat for six years without any ruling by the judge. His habeas corpus petition was sealed at the request of the government. Zubaydah’s lawyers filed to have it declassified. It remains classified.

A lawyer with the Center for Constitutional Rights, which has been at the forefront of lawsuits to gain the release of Guantanamo detainees, says he has been baffled by the judge’s inaction. “It appears to be highly unusual,” says the lawyer, J. Wells Dixon, who has represented several Guantanamo detainees, but is not involved in the Zubaydah case. In contrast to Zubaydah’s case, Dixon said that 64 Guantanamo detainees who filed habeas petitions have seen their cases adjudicated.

Rooted in English common law, the principle of habeas corpus is a cornerstone of the American legal system. In England, it served as a check on the king’s power to lock someone in the dungeon and throw away the key. Dixon noted that the Supreme Court has said habeas was designed to be a “swift and imperative remedy.”

Yet Judge Roberts appears content to let Zubaydah’s case languish. Compared to his handling of other cases, the jurist has been anything but “swift” in Zubaydah’s case. For cases he closed in 2014, the median time from filing was 751 days, according to data assembled for ProPublica by the Transactional Records Access Clearinghouse, a nonprofit organization at Syracuse University. The longest any closed case had been on his docket was 1,651 days, according to TRAC. Zubaydah’s case has been pending for some 2,400 days, and it will be years before it goes to trial, if it ever does.

There are few answers for why Zubaydah’s case has gone so far off track — and there’s nothing in Roberts’ background or recent behavior on the bench that would make him seem incapable of ruling if he desired. He was appointed to the court by President Bill Clinton in 1998 and has a fairly typical background for a federal judge: A Columbia law school grad, he rose through the ranks of the Department of Justice, working as an assistant U.S. attorney in the Southern District of New York and as principal assistant U.S. attorney for the District of Columbia. He later spent three years as the chief of the criminal section at the Justice Department’s Civil Rights Division. Absent the apparently intentional aberration of the Zubaydah case, his court docket proceeds as normal in Courtroom 9 on the fourth floor of the U.S. District Courthouse on Pennsylvania Avenue NW.

A spokeswoman for the federal district court declined to comment on the case.

One possible clue about the judge’s failure to act may be found in a motion Zubaydah’s lawyers filed in 2010. They asked Roberts for access to any “ex parte filings,” which is evidence the government shows the court outside the presence of the other side’s lawyers.

In other cases involving detainees, secret prisons, watch lists and challenges to domestic spying, the Justice Department has attempted to win dismissals by presenting classified evidence to judges in the secrecy of their chambers.

A rare insight into how that tactic is deployed was made public by a federal judge in San Francisco in a lawsuit by a Malaysian woman who challenged her placement on the no-fly list. The government sought to dismiss the case on the grounds of national security. In a ruling on the motion, the judge, William H. Alsup, described what happened next: “A telephone call came into the court staff saying that a federal agent was on the way from Washington to San Francisco to show the judge confidential records about this case, all to be relied upon by the government in support of its motion to dismiss (but not to be disclosed to the other side). The officer would take back the records after the judge reviewed them and would leave no record behind of what he had shown the judge.”

In that case, Alsup declined to receive the officials, although he did receive other ex parte filings in the case.

It’s not clear whether Judge Roberts has received a comparable offer, and if so, how he reacted. But it’s unlikely that if such a meeting or meetings happened, the public would ever know—and likely that not even Zubaydah’s own lawyers would know about it, unless Roberts came forward as Alsup did.

Although the case is an infamous one, it’s worth recalling the details of Abu Zubaydah’s custody in U.S. hands.

He was captured in a joint Pakistani-CIA-FBI operation in Lahore, Pakistan, in March 2002, during which he was shot in the groin, leg and stomach. Severely wounded, Zubaydah lingered near death as the CIA, which wanted him alive for interrogation, flew in a top surgeon from Johns Hopkins in Baltimore. Later, Zubaydah was handcuffed, hooded, drugged and flown to Thailand, where the CIA was in the process of creating one of its first “black sites.” Initially interviewed by the FBI, Zubaydah cooperated. FBI Special Agents Ali Soufan and Steve Gaudin even held ice to his lips so he could receive fluids. Zubaydah told the agents that Khalid Sheik Mohammad was the mastermind of the 9/11 attacks and gave them further detailed information about him, including his alias—the news ricocheted across Washington and Zubaydah became a pawn in the capital’s power tussle between the FBI and the CIA.

CIA Director George Tenet wasn’t satisfied with the progress on the interrogation. The agency was convinced that Zubaydah knew more, that he was a high-level al-Qaeda operative, and that he was withholding information about pending terrorist plots. Thus, Zubaydah became the guinea pig for what the Bush Administration called “enhanced interrogation techniques.” The FBI pulled its agents out of Thailand as the CIA’s plans for the prisoner became clear—but not before the agents got one final useful tip: Zubaydah pointed them to a name “Abu Abdullah al Mujahir” that eventually led agents to José Padilla, a would-be jihadist who was arrested in Chicago on May 8, 2002.

Meanwhile, the CIA started in on Zubaydah. For 47 days, he was held in complete isolation, with only a towel. Then, shortly before noon on August 4, 2002, hooded security personnel entered his cell, shackled and hooded him, and removed his towel, leaving him naked. “So it begins,” a medical officer in Thailand cabled CIA headquarters about the first day’s session.

Interrogators placed a towel around his neck, as a collar, and slammed him against a concrete wall. They removed his hood and had him watch while a coffin-like box was brought into the cell. The waterboarding started, “after large box, walling, and small box periods,” the medical officer reported. “NO useful information so far.” He added, “I am head[ing] back for a waterboard session.” During the waterboarding Zubaydah frequently vomited, made “hysterical pleas,” and experienced “involuntary leg, chest and arm spasms.”

After a few days, some of the individuals involved in Zubaydah’s interrogation were deeply disturbed, to the “point of tears and choking up,” the team cabled Washington.

Over the course of the interrogations, Zubaydah “cried,” he “begged,” he “pleaded,” he “whimpered,” the team in Thailand reported to headquarters in various cables. But he never gave the CIA information about plans for attacks in the United States. And in the end, the CIA “concluded that Abu Zubaydah had been truthful and that he did not possess any new terrorist threat information,” the Senate torture report says. He was not even a member of al-Qaeda.

Yet even though the torture was over, Zubaydah’s ordeal was just beginning. For nearly a decade, he’s been shuttled around the world and held in legal limbo—even as hundreds of detainees have been transferred or released and court cases have moved forward for other suspected terrorists at Guantanamo.

After the first media reports appeared about a CIA secret prison in Thailand, Zubaydah was moved to a secret site in Poland. A year ago, the European court of human rights ruled that Poland had been complicit with the United States in subjecting Zubaydah to “inhuman and degrading treatment,” and ordered Poland to pay him reparations. After losing an appeal, Poland paid Zubaydah 100,000 Euros, which Zubaydah has said he will give to victims of torture.

Zubaydah, who was transferred from Poland to Guantanamo Bay in 2006, has not fared well with the American judicial system even as his lawyers have attempted to nudge the case forward to a conclusion.

Much of the case remains wrapped in secrecy, meaning that his lawyers are unable to discuss or elaborate upon much of their work or knowledge of the case. Glimpses into it, though, are possible through the languishing court filings. Zubaydah’s lawyers have filed two motions that raise questions about the government’s conduct in the case. In 2010, they sought an “order prohibiting the government from obstructing petitioner’s investigation.” The court hasn’t ruled, and we don’t know what might have prompted this request because the documents are sealed. Similarly, three years ago, Zubaydah’s lawyers asked for sanctions against the government because of what they said was “the improper seizure” of documents “subject to the attorney-client privilege.” Again, Judge Roberts has yet to rule.

Frustrated by the inaction in the case, Zubaydah’s lawyers filed a motion in January asking the judge to recuse himself for “nonfeasance.” It is an unusual motion. Judges are occasionally asked to recuse themselves because of conflicts of interest or bias, but not for simply failing to act. The government has filed its response, which is sealed, and the judge—perhaps not surprisingly, given the track record thus far—has not yet ruled.

“We don’t take this step lightly,” said Joseph Margulies, one of Zubaydah’s lawyers. Margulies, an experienced criminal defense lawyer who has represented several Guantanamo detainees and is a professor at Cornell University School of Law, added, “I have never seen a case in which there has been this much judicial inaction. There has to be a remedy.”

But there may not be. If Judge Roberts “ignores Abu Zubaydah’s case, there is very little we can do,” said Margulies. “The net effect is that the CIA wins.”

News Mon, 25 May 2015 00:00:00 -0400