WEBVTT - Accused 911 Mastermind Gets Deal to Avoid Death Penalty 0:00:03.200 --> 0:00:08.000 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:11.760 --> 0:00:15.040 The man accused of being the mastermind of the September 0:00:15.040 --> 0:00:18.440 eleventh attacks is getting a plea deal that will allow 0:00:18.520 --> 0:00:22.280 him to avoid the death penalty. A dramatic and to many, 0:00:22.480 --> 0:00:27.040 unwelcome development in the prosecution of the deadliest terrorist attack 0:00:27.160 --> 0:00:31.440 on US soil that's dragged on for decades. The Pentagon 0:00:31.480 --> 0:00:35.000 announced that Khalid Sheik Mohammed and two of his accomplices 0:00:35.360 --> 0:00:38.600 will plead guilty to the murder of two nine hundred 0:00:38.640 --> 0:00:42.320 and seventy six people in exchange for a life sentence. 0:00:42.800 --> 0:00:45.919 Terry Strata, the head of the nine to eleven Families 0:00:46.000 --> 0:00:50.360 United group, told DW News that the vast majority of 0:00:50.400 --> 0:00:54.560 the families are angry and feel that justice was denied. 0:00:55.200 --> 0:00:58.000 He will not stand trial and he will not face 0:00:58.120 --> 0:01:01.680 a punishment by death, which is what was on the table. 0:01:02.160 --> 0:01:05.880 So this is something that PSM and the others wanted. 0:01:06.040 --> 0:01:09.160 So it's a victory for them, and I don't feel 0:01:09.160 --> 0:01:12.440 like we should ever give them a victory. This is 0:01:12.600 --> 0:01:15.760 a sign of a very weak leadership in our country 0:01:15.840 --> 0:01:19.640 to strike such a deal that, like I just said, 0:01:19.640 --> 0:01:23.120 a vast majority of family members do not support, do 0:01:23.240 --> 0:01:25.840 not want, and we do not want him to have 0:01:25.959 --> 0:01:26.720 this victory. 0:01:27.080 --> 0:01:30.600 This plea deal only affects three of the five alleged 0:01:30.840 --> 0:01:34.720 nine to eleven conspirators being held at Guantanamo Bay. Joining 0:01:34.760 --> 0:01:37.959 me is Matthew Waxman, a professor at Columbia Law School. 0:01:38.360 --> 0:01:41.720 Why have the trials of these nine to eleven defendants 0:01:42.319 --> 0:01:44.000 been delayed for decades? 0:01:44.760 --> 0:01:48.360 So right from the start, I think the military commissions 0:01:48.640 --> 0:01:53.200 that were set up to prosecute detainees at Guantanamo for 0:01:53.280 --> 0:01:56.800 war crimes have been a failed policy. They were supposed 0:01:56.840 --> 0:02:00.680 to be set up in order to provide with justice, 0:02:00.760 --> 0:02:04.280 but they've delivered anything but that. And I think there 0:02:04.320 --> 0:02:08.720 have been a number of problems that have slowed down 0:02:09.200 --> 0:02:13.240 the prosecutions, and especially these that are subject to this 0:02:13.440 --> 0:02:19.480 plea deal. When detainees were captured, whether on the battlefield 0:02:19.600 --> 0:02:23.200 or elsewhere, those agencies that picked them up were not 0:02:23.520 --> 0:02:27.399 preparing a case for trial. They weren't collecting evidence as 0:02:27.440 --> 0:02:31.480 you would in order to prosecute a criminal trial. There 0:02:31.720 --> 0:02:36.560 have been issues of evidence or confessions that have been 0:02:36.760 --> 0:02:42.960 obtained allegedly by torture. There are legal challenges that have 0:02:43.160 --> 0:02:46.040 been made some of which have gone all the way 0:02:46.120 --> 0:02:49.720 up to the Supreme Court that have slowed down the process. 0:02:49.880 --> 0:02:53.359 And whenever you set up an entirely new court system, 0:02:53.840 --> 0:02:58.120 you have to basically develop all kinds of rules and 0:02:58.200 --> 0:02:59.560 processes from scratch. 0:03:00.160 --> 0:03:04.320 Tell us about the alleged mastermind. Colleague, Sheik Muhammad. 0:03:04.800 --> 0:03:09.000 So Ksm and he's usually known by those initials, is 0:03:09.280 --> 0:03:13.720 accused of plotting the attacks of September eleventh, two thousand 0:03:13.760 --> 0:03:17.400 and one. He's one of thirty detainees who are still 0:03:17.440 --> 0:03:23.119 held at Guantanamo. And he was a US trained engineer 0:03:23.240 --> 0:03:27.400 who becomes a key leader of al Qaeda, and he 0:03:27.520 --> 0:03:31.920 and two of his accomplices have agreed to this plea deal. 0:03:32.440 --> 0:03:36.600 They've been charged, among other things, with murdering three thousand 0:03:36.640 --> 0:03:42.160 people in the September eleventh attacks, and the basic terms 0:03:42.160 --> 0:03:45.440 of the plea deal are that they will plead guilty 0:03:45.720 --> 0:03:51.080 to murder and other charges in return for a life 0:03:51.120 --> 0:03:54.600 sentence rather than the possibility of a death penalty. 0:03:55.240 --> 0:03:57.560 I can see what the defendants are getting out of 0:03:57.600 --> 0:04:00.040 this deal, but what is the government getting out of this? 0:04:01.000 --> 0:04:04.640 I think it's a good deal for the government, and 0:04:05.040 --> 0:04:08.240 here's why I'll be glad to see this case put 0:04:08.280 --> 0:04:11.680 to rest. I doubt this case would ever have been 0:04:12.160 --> 0:04:16.799 concluded if it proceeded, and actually carrying out a death 0:04:16.839 --> 0:04:21.000 sentence would have been a disaster, however much they may 0:04:21.080 --> 0:04:25.000 deserve it. So let me just say I'm conflicted on 0:04:25.680 --> 0:04:28.400 the death penalty because these are some of the worst 0:04:28.480 --> 0:04:33.080 people on earth who've committed unspeakable horrors. But I think 0:04:33.400 --> 0:04:36.520 actually carrying out a death sentence in this case would 0:04:36.520 --> 0:04:40.000 have been a disaster. I do feel for families of 0:04:40.160 --> 0:04:44.359 the September eleventh victims who have had to endure the pain, 0:04:44.520 --> 0:04:47.960 especially of watching this unfold, and I know that they 0:04:48.880 --> 0:04:52.920 want finality, and many of them are very supportive of 0:04:53.120 --> 0:04:56.599 the death penalty. But even if it were carried out, 0:04:56.680 --> 0:05:00.159 and I'm very skeptical that the government would actually have 0:05:00.240 --> 0:05:03.240 been able to impose the death penalty, I think in 0:05:03.279 --> 0:05:08.040 this case it would make a martyr of these detainees. 0:05:08.720 --> 0:05:09.240 I think the. 0:05:09.240 --> 0:05:12.920 Story would understandably be that the United States has put 0:05:13.000 --> 0:05:17.440 to death somebody who's been subjected to torture. That would 0:05:17.600 --> 0:05:22.640 only add to the terrible stain of Guantanamo and the 0:05:22.760 --> 0:05:24.960 CIA enhanced interrogation policy. 0:05:25.320 --> 0:05:28.200 You mentioned the families Terry Strata, the had of one 0:05:28.240 --> 0:05:31.360 group of families said, for me personally, I wanted to 0:05:31.400 --> 0:05:33.720 see a trial and they took away the justice. I 0:05:33.839 --> 0:05:37.960 was expecting a trial and the punishment. And Brett Eagleson, 0:05:38.240 --> 0:05:41.760 president of nine to eleven Justice, said, we're deeply troubled 0:05:41.760 --> 0:05:45.400 by these plea deals. Should the government go ahead with 0:05:45.440 --> 0:05:51.760 a plea deal that so many of the family members disagree. 0:05:51.200 --> 0:05:53.919 With, well, this is a terrible dilemma for the government. 0:05:54.000 --> 0:05:58.160 And as I've said, I very much feel for the 0:05:58.160 --> 0:06:02.320 families who have had to endure not just the unspeakable 0:06:02.360 --> 0:06:06.080 pain of the deaths of their loved ones, but now 0:06:06.400 --> 0:06:10.800 twenty years of this process dragging on. I do hope 0:06:10.839 --> 0:06:14.800 that they feel some sense of justice. But there are 0:06:15.240 --> 0:06:20.360 other very powerful concerns and interests at stake here, and 0:06:20.960 --> 0:06:24.400 the US government has to do what's right taking into 0:06:24.440 --> 0:06:28.080 account all of these various factors. As I said, I 0:06:28.120 --> 0:06:31.159 don't think the death penalty ever would have been carried 0:06:31.200 --> 0:06:35.040 out in this case, and I think carrying out would 0:06:35.040 --> 0:06:39.960 have carried immense damage to the United States interests, especially abroad. 0:06:40.760 --> 0:06:46.240 Last September, ABC News reported that President Biden rejected a 0:06:46.320 --> 0:06:49.400 set of demands that would form the basis for plea 0:06:49.480 --> 0:06:54.320 negotiations offered by the five defendants, and that included avoiding 0:06:54.360 --> 0:06:59.719 solitary confinement. Why is the government not releasing the details 0:06:59.760 --> 0:07:03.560 of this might be because some of the details might 0:07:03.600 --> 0:07:04.520 be objectionable. 0:07:05.160 --> 0:07:09.320 I suspect some of the details are still being worked out. 0:07:09.520 --> 0:07:12.360 I think some of them will need to be approved 0:07:12.600 --> 0:07:18.240 by the military commissions and through some other processes. But 0:07:18.320 --> 0:07:21.800 this is also one of the challenges of moving a 0:07:21.920 --> 0:07:26.600 case like this through a military justice process that hasn't 0:07:26.680 --> 0:07:29.640 really been tested. A lot of what's going on in 0:07:29.720 --> 0:07:34.080 military commissions is new, and so we don't know for 0:07:34.160 --> 0:07:37.720 sure how some of these processes are going to play out. 0:07:37.800 --> 0:07:41.080 That's been one of the problems plaguing military commissions from 0:07:41.120 --> 0:07:45.560 the beginning, is that this is an untested process. 0:07:45.600 --> 0:07:49.800 And two other nine to eleven defendants are not participating 0:07:50.040 --> 0:07:52.080 in these agreements. 0:07:52.480 --> 0:07:56.200 That's right. For several years now, it's been reported that 0:07:56.280 --> 0:07:59.680 a deal like this has been in the work, some 0:07:59.720 --> 0:08:03.400 sort of a plea deal for a life sentence in 0:08:03.480 --> 0:08:08.080 return for pleading guilty rather than the possibility of the 0:08:08.120 --> 0:08:12.440 death penalty. Originally, it was talked about as possibly involving 0:08:12.840 --> 0:08:16.880 five of the direct perpetrators or leaders of the nine 0:08:16.920 --> 0:08:22.160 to eleven attack plot. I don't know why we're now 0:08:22.600 --> 0:08:26.800 talking about a deal involving only three, but over the 0:08:26.840 --> 0:08:30.120 course of the last few years, we've heard that this 0:08:30.240 --> 0:08:33.480 deal is sort of on again, off again, and so 0:08:33.520 --> 0:08:36.319 there are any number of possible reasons why. 0:08:37.000 --> 0:08:40.559 Looking at the big picture here, the government is disappointing 0:08:40.920 --> 0:08:44.160 most of the family members with this deal. It's only 0:08:44.240 --> 0:08:47.720 for three out of the five conspirators. They're getting a 0:08:47.760 --> 0:08:51.480 life sentence for the murder of three thousand people after 0:08:51.559 --> 0:08:55.120 twenty years. Doesn't this seem like a complete failure on 0:08:55.160 --> 0:08:56.200 the part of the government. 0:08:56.679 --> 0:09:01.080 So right now, there are thirty detainedes out of a 0:09:01.160 --> 0:09:05.640 total of roughly eight hundred who were brought to Guantanamo 0:09:05.760 --> 0:09:09.360 since it opened in two thousand and two. Most of 0:09:09.400 --> 0:09:12.840 them have been transferred or released, some of them to 0:09:12.960 --> 0:09:16.000 their home countries, some of them to third countries with 0:09:16.240 --> 0:09:20.880 varying restrictions. Some of them were transferred for continued detention, 0:09:21.080 --> 0:09:24.920 for example, in their home countries. Of those who remain 0:09:25.000 --> 0:09:29.360 at Guantanamo, about half have also been approved for some 0:09:29.400 --> 0:09:32.640 sort of transfer, but we don't know whether that will 0:09:33.120 --> 0:09:38.280 happen anytime soon. A few, though, will never be charged. 0:09:38.360 --> 0:09:43.040 They're going to be held indefinitely without any sort of prosecution. 0:09:43.520 --> 0:09:47.680 I think Guantanamo has been a failed policy. It was 0:09:47.720 --> 0:09:52.360 originally opened to be a place that would hold only 0:09:52.480 --> 0:09:55.720 the very worst of the worst, and it turned out 0:09:55.760 --> 0:09:58.360 that many detainees who were brought there should never have 0:09:58.480 --> 0:10:02.959 been either they were is like mistaken identity, or they 0:10:03.000 --> 0:10:07.480 were low level Al Qaeda or Caliban figures. It was 0:10:07.520 --> 0:10:12.600 also supposed to be an interrogation and intelligence center where 0:10:12.760 --> 0:10:16.400 the government would be able to obtain a vast amount 0:10:16.440 --> 0:10:21.400 of information about future Al Qaeda plots and networks, and 0:10:21.440 --> 0:10:24.760 I think it failed in both its detention mission and 0:10:25.160 --> 0:10:28.920 its intelligence mission. That doesn't mean that it was not 0:10:29.160 --> 0:10:33.920 valuable in some important ways. It kept many very, very 0:10:34.440 --> 0:10:38.720 very dangerous people off the battlefield and prevented them from 0:10:38.760 --> 0:10:45.400 conducting further attacks. It also did provide some important intelligence information, 0:10:45.520 --> 0:10:47.760 never as much as I think was expected, but it 0:10:47.800 --> 0:10:53.280 did provide some very very important information. But from the beginning, 0:10:53.400 --> 0:10:56.400 there was never really a good plan for what was 0:10:56.480 --> 0:11:00.560 going to happen to the detainee's long term. There were 0:11:00.640 --> 0:11:05.679 insufficient processes put in place for figuring out which detainees 0:11:05.880 --> 0:11:09.480 should be detained there and which ones shouldn't. It is 0:11:09.880 --> 0:11:14.600 indelibly associated with this idea of a legal black hole 0:11:14.800 --> 0:11:18.520 and with torture, and I think many of those costs 0:11:18.760 --> 0:11:21.400 continue to accrue over time. 0:11:21.880 --> 0:11:24.400 The plea dealers are expected to take place as soon 0:11:24.440 --> 0:11:28.400 as next week, so perhaps we'll learn more then. Thanks 0:11:28.440 --> 0:11:31.160 so much for being on the show. That's Professor Matthew 0:11:31.280 --> 0:11:34.520 Waxman of Columbia Law School. Coming up next on the 0:11:34.520 --> 0:11:38.960 Bloomberg Law Show. The rogue Fifth Circuit is added again, 0:11:39.520 --> 0:11:43.120 finding an eight billion dollar a year FCC program to 0:11:43.160 --> 0:11:49.079 boost phone and broadband services for poor and rural communities unconstitutional. 0:11:49.360 --> 0:11:53.520 I'm June Grosso and you're listening to Bloomberg. The ultra 0:11:53.640 --> 0:11:58.440 conservative Rogue Fifth Circuit has done it again, plotting a 0:11:58.520 --> 0:12:02.840 novel legal path in another attempt to limit federal agency power, 0:12:03.440 --> 0:12:07.840 this time by limiting Congress's ability to delegate decision making 0:12:07.960 --> 0:12:12.040 to regulators. In a nine to seven on Bank decision, 0:12:12.520 --> 0:12:15.640 the Appellate Court ruled against an eight billion dollar a 0:12:15.720 --> 0:12:20.360 year FCC program intended to boost phone and broadband service 0:12:20.679 --> 0:12:25.120 for poor and rural communities, finding that it's an unconstitutional 0:12:25.160 --> 0:12:29.960 delegation of Congress's taxing authority. The decision is contrary to 0:12:30.040 --> 0:12:34.559 decisions by three other circuits, making the fifth circuit once 0:12:34.600 --> 0:12:39.040 again an outlier. Joining me is John Bergmeier, legal director 0:12:39.080 --> 0:12:42.720 at Public Knowledge. So at the center of this case 0:12:43.040 --> 0:12:47.920 is the FCC's Universal Service Fund. Tell us about that. 0:12:48.559 --> 0:12:53.000 Sure about the Universal program which has been in place 0:12:53.200 --> 0:12:58.280 really for decades now, which traditionally was seen primarily as 0:12:58.320 --> 0:13:01.240 a telephone program for saying that everyone has access to 0:13:01.320 --> 0:13:05.120 telephone service, but increasingly is seeing as a program to 0:13:05.240 --> 0:13:10.000 ensure universal access to broadband. And what it means is 0:13:10.000 --> 0:13:15.040 that telecommunications companies, like telephone companies, traditionally are assessed a 0:13:15.200 --> 0:13:18.480 charge that they have to pay. They do tend to 0:13:18.920 --> 0:13:21.640 sort of put it on consumers' bills and kind of 0:13:21.679 --> 0:13:24.920 make people think it's like a tax on consumers directly, 0:13:25.000 --> 0:13:26.680 but it's not. If there's a charge that is on 0:13:26.720 --> 0:13:30.320 the telecommunications companies themselves, and then the money that they 0:13:30.360 --> 0:13:33.640 pay goes into a fund, and then the fund is 0:13:33.880 --> 0:13:38.640 used to subsidize broadband and telephone service to areas where 0:13:38.679 --> 0:13:42.400 it might not be economical, so rural areas where it's 0:13:42.400 --> 0:13:44.760 hard to make a business case to invest might help 0:13:44.800 --> 0:13:48.480 out there. It also helps low income people so there's 0:13:48.480 --> 0:13:51.719 something called the Lifeline and link up programs that make 0:13:51.840 --> 0:13:56.120 communications services more affordable, and it's also used to help 0:13:56.400 --> 0:14:01.200 provide broadband to anchor institutions like schools and libraries. So 0:14:01.280 --> 0:14:03.520 it's really part of making sure that the country as 0:14:03.559 --> 0:14:06.440 a whole and everyone in it kind of regardless of 0:14:06.480 --> 0:14:10.600 where you live, has access to telecommunication because it's one 0:14:10.600 --> 0:14:13.640 of the things that ties the country together, something that 0:14:13.760 --> 0:14:16.400 is really seen as benefiting not just the people who 0:14:16.559 --> 0:14:19.400 you know are getting access to communication services that they 0:14:19.400 --> 0:14:22.200 otherwise might have access to, but it really helps the 0:14:22.320 --> 0:14:24.600 nation as a whole. I mean, just like it's good 0:14:24.600 --> 0:14:28.000 that you can send mail to rural Alaska with a 0:14:28.040 --> 0:14:30.280 stamp and you can communicate with them. That's like a 0:14:30.320 --> 0:14:33.360 benefit to people, even who live in cities. It's seen 0:14:33.400 --> 0:14:35.200 as sort of like a benefit for everyone. 0:14:35.560 --> 0:14:38.760 This was passed in nineteen ninety six, and as you say, 0:14:38.800 --> 0:14:42.440 it's been ongoing. Why are there challenges to it now? 0:14:43.080 --> 0:14:46.640 Well, there is an activist group called Consumers Research that 0:14:46.720 --> 0:14:51.280 has been filing lawsuit after lawsuit attempting to challenge this, 0:14:51.560 --> 0:14:54.400 and they've lost in every court really up until now, 0:14:54.480 --> 0:14:56.440 and they even lost in the Good Circuit until now 0:14:56.600 --> 0:14:59.400 they've lost in the DC Circuit at leave, the Sixth Circuit, 0:14:59.480 --> 0:15:01.920 the eleven Circuit, so they sort of had like a 0:15:02.000 --> 0:15:06.040 spray and pray philosophy of litigations and this time it 0:15:06.160 --> 0:15:09.240 won out. And as to why now, I would expect 0:15:09.280 --> 0:15:11.760 because they see that with the shift in the makeup 0:15:11.840 --> 0:15:14.880 of the judiciary and increasingly, you know, a lot of 0:15:15.040 --> 0:15:18.880 Trump appointed judges, increasingly conservative judges who are willing to 0:15:19.040 --> 0:15:22.480 just all of a sudden find programs and policies that 0:15:22.520 --> 0:15:25.440 have been in place and supported on a bipartisan basis, 0:15:25.600 --> 0:15:28.840 as well as by both industry and consumer groups like 0:15:28.920 --> 0:15:31.960 my own. They felt like they'd have a chance of success, 0:15:32.000 --> 0:15:35.480 and at least this Fifth Circuit ruling shows that they 0:15:35.560 --> 0:15:38.760 were right. They did succeed. However, I do expect its 0:15:38.800 --> 0:15:41.240 going to go to the Supreme Court because so many 0:15:41.280 --> 0:15:43.640 other appellate courts have ruled otherwise. 0:15:44.240 --> 0:15:47.560 Tell us about the arguments pro and con that the 0:15:47.600 --> 0:15:49.480 Fifth Circuit considered in the case. 0:15:50.000 --> 0:15:53.520 The way the universal service works is, you know, admittedly, 0:15:53.640 --> 0:15:56.800 like it's a little complicated to understand that first, but 0:15:57.040 --> 0:16:01.720 basically Congress has told the SCC to ensure universal service. 0:16:01.840 --> 0:16:04.720 So that's one part of Their argument is that you 0:16:04.760 --> 0:16:08.200 can't do that, like Congress has to spell out all 0:16:08.240 --> 0:16:11.040 of the details ahead of time in statute. They can't 0:16:11.080 --> 0:16:14.400 just give the FEC a charge such as, you know, 0:16:14.840 --> 0:16:18.280 ensure universal communications service to all Americans. So the first 0:16:18.480 --> 0:16:22.560 argument that they're making is a delegation challenge. Then the 0:16:22.680 --> 0:16:25.080 law of the land, which has been in place for 0:16:25.120 --> 0:16:28.280 a long time, is that, you know, Congress can't delegate 0:16:28.360 --> 0:16:31.920 this like actual core legislative functions. You know, Congress can't 0:16:31.960 --> 0:16:33.960 just say we're going to create an agency and the 0:16:33.960 --> 0:16:36.760 agency is going to pass all of the laws. But 0:16:36.880 --> 0:16:41.440 Congress can delegate functions to agencies as long as they 0:16:41.480 --> 0:16:44.400 give them what it's called an intelligible principle. And here 0:16:44.480 --> 0:16:47.080 the intelligible principle is it's like, okay, SCC, you can't 0:16:47.080 --> 0:16:49.400 just do whatever you want. You just have to do 0:16:49.600 --> 0:16:53.480 things that are, in your judgment, designed to ensure universal 0:16:53.520 --> 0:16:56.000 access to communication services. And the reason you want an 0:16:56.000 --> 0:16:58.160 agency to do this instead of Congress is because it's 0:16:58.160 --> 0:17:01.160 a very fast moving landscape in our country. We've gone 0:17:01.200 --> 0:17:04.879 from telegraph the telephone to broadbands. We have you know, 0:17:05.000 --> 0:17:07.960 wireline phones and wireless phones, and it's like a very 0:17:07.960 --> 0:17:11.440 shifting landscape, and we see the speed at which Congress 0:17:11.480 --> 0:17:15.880 operates and the general level of technological expertise that your 0:17:15.920 --> 0:17:20.439 cytical Congress might have. It's just not practical to have 0:17:20.640 --> 0:17:23.200 them just decide exactly how. 0:17:22.960 --> 0:17:25.160 The Universal Service programs should function. 0:17:25.760 --> 0:17:29.520 So they delegate it to the SCC. And as every 0:17:29.600 --> 0:17:33.760 court other than this recent court Grouwing has found is yes, 0:17:33.800 --> 0:17:37.360 that's an intelligible principle. That's fine. That's not an unconstitutional 0:17:37.480 --> 0:17:42.199 delegation of legislative authority to an agency. It's just a 0:17:42.240 --> 0:17:45.240 delegation to like fill in the blanks. Congress made the 0:17:45.280 --> 0:17:49.280 policy decision and SEC you go, carried out. So that's 0:17:49.320 --> 0:17:52.639 the first argument they made. And then the second argument 0:17:52.680 --> 0:17:56.919 they made is that this entity that the SEC works 0:17:56.960 --> 0:18:02.720 with to decide exactly how much telecommunications companies have to 0:18:02.760 --> 0:18:06.399 pay into the fund. It's called USAC, the Universal Service 0:18:06.440 --> 0:18:10.280 Administrative Company, and it sort of does the accounting for 0:18:10.480 --> 0:18:13.159 the SCC, like it keeps track of revenues and it 0:18:13.200 --> 0:18:15.920 figures out how much has to be paid by who. 0:18:16.080 --> 0:18:19.120 This company, by the way, the nonprofit, it's a federally 0:18:19.240 --> 0:18:24.200 chartered nonprofit. It doesn't have any real legal power. All 0:18:24.200 --> 0:18:27.600 it can do is like accounting, what we'd call ministerial work. 0:18:28.000 --> 0:18:30.879 And then it just proposes things to the FCC and 0:18:30.920 --> 0:18:33.600 it's up to the SBC to look at the proposals 0:18:33.760 --> 0:18:37.040 and then smount of public comments, just like it does 0:18:37.080 --> 0:18:41.600 with other any FCC rulemaking, and if it agrees, then 0:18:41.680 --> 0:18:44.760 that becomes the law. So it's still the SEC that 0:18:44.960 --> 0:18:49.520 ultimately is in charge of the regulations. Now, the plaintiffs 0:18:49.520 --> 0:18:52.280 in this case, Consumer Research and the Fifth Circuit, they 0:18:52.359 --> 0:18:53.919 make a lot They say, oh, this is just like 0:18:53.960 --> 0:18:58.800 a formality because the SEC never rejects the USAC proposals. Well, 0:18:58.840 --> 0:19:01.199 there's a really good reason why the SEC doesn't reject 0:19:01.200 --> 0:19:04.600 the USAC proposals. It's that the SEC basically controls USAC 0:19:04.680 --> 0:19:08.920 to begin with. The board members of this nonprofit corporation 0:19:09.080 --> 0:19:12.560 are appointed by the chair of the SCC. So you 0:19:12.600 --> 0:19:16.960 wouldn't really expect that a nonprofit company whose board members 0:19:17.040 --> 0:19:20.959 are appointed by the SCC, who have to follow SEC 0:19:21.160 --> 0:19:24.400 rules and all they do is basically accounting. They don't 0:19:24.400 --> 0:19:27.600 make policy choices, they don't interpret the law, they don't 0:19:27.640 --> 0:19:31.160 advocate for changes in the law. They just do accounting. 0:19:31.200 --> 0:19:34.480 So why would you expect their accounting work to be 0:19:34.640 --> 0:19:37.639 somehow rejected by the SCC. But this was used as 0:19:37.680 --> 0:19:40.040 a pretext by the plaintiffs, and I would argue the 0:19:40.080 --> 0:19:43.919 Fifth Circuit to say, oh, you know, the SCC, so 0:19:44.000 --> 0:19:46.680 this is a second argument that's in the case has 0:19:46.800 --> 0:19:51.840 delegated a government function to a private entity. So, in 0:19:51.880 --> 0:19:55.800 addition to the principle that Congress can't delegate its basic 0:19:55.960 --> 0:20:02.280 legislative functions to agencies, governments themselves can't outsource core government 0:20:02.400 --> 0:20:08.360 functions to private entities. However, governments always work with private 0:20:08.400 --> 0:20:13.600 companies for these sorts of ministerial type, non policy making, 0:20:14.200 --> 0:20:17.720 no legal authority kinds of work. So what the Fifth 0:20:17.760 --> 0:20:21.240 Circuit held was, even though the Universal Service has been 0:20:21.240 --> 0:20:25.840 found to be not an unconstitutional delegation of legislative authority 0:20:26.119 --> 0:20:28.400 in the past, they basically said, when you take these 0:20:28.440 --> 0:20:33.560 two things together combined, they become unconstitutional. And as the 0:20:33.560 --> 0:20:36.240 defense from the case point out, this is completely breaking 0:20:36.320 --> 0:20:40.040 new ground. It is ignoring Supreme Court President, it's ignoring 0:20:40.040 --> 0:20:42.679 what other circuits have said, and it really gives the 0:20:42.720 --> 0:20:47.520 federal government and agencies effectively zero guidance as to what 0:20:47.560 --> 0:20:49.080 they can do going forward. 0:20:49.720 --> 0:20:52.760 What do they expect. So in this case, Congress passed 0:20:52.800 --> 0:20:55.960 the act and to all the FGC to enforce the Act, 0:20:56.600 --> 0:21:00.560 what do they expect. Do they expect Congress to specifically 0:21:00.880 --> 0:21:05.080 in legislation say exactly what has to be done which 0:21:05.119 --> 0:21:06.160 will never happen. 0:21:06.600 --> 0:21:11.520 It's not entirely clear because they've concocted this two part 0:21:11.800 --> 0:21:15.560 theory where it's like delegation to the FCC and then 0:21:15.720 --> 0:21:20.399 delegation from the SEC to a private company or a 0:21:20.440 --> 0:21:24.040 private nonprofit rather. So, maybe you would say, under the 0:21:24.080 --> 0:21:27.680 Fifth Circuits view, if the SCC just sort of internally 0:21:27.720 --> 0:21:31.280 did all of the work that USAC currently does, then 0:21:31.280 --> 0:21:34.520 that would be fine. Or maybe they just think that 0:21:34.600 --> 0:21:38.560 the delegation of what the Fifth Circuit has, incorrectly, by 0:21:38.600 --> 0:21:41.720 the way, called a taxing authority to the SEC like 0:21:41.760 --> 0:21:44.840 that is still unconstitutional. I think the problem is with 0:21:44.880 --> 0:21:47.600 the Fifth Circuit in particular, and this is not just 0:21:47.720 --> 0:21:49.800 my opinion. You see it in how many times the 0:21:49.800 --> 0:21:53.600 Fifth Circuit has been reversed by a very conservative Supreme Court. So, 0:21:53.760 --> 0:21:56.160 I mean, when the Fifth Circuit is constantly being reversed 0:21:56.200 --> 0:21:58.680 by what is known as the most conservative Supreme Court 0:21:58.760 --> 0:22:01.600 in recent history, you know, they're kind of like going 0:22:01.600 --> 0:22:03.560 out on a limb and I think that they would 0:22:03.600 --> 0:22:06.440 just move the goalpost no matter what is done. I 0:22:06.480 --> 0:22:08.080 would suppose that they might try to find a way 0:22:08.119 --> 0:22:11.080 to find it unconstitutional, but they're sort of taking the 0:22:11.160 --> 0:22:14.200 document at its word. Then yeah, maybe you could fix 0:22:14.359 --> 0:22:17.920 one or two of the problems and have it proceed. 0:22:18.119 --> 0:22:20.199 And the short term, what they did was they just 0:22:20.280 --> 0:22:23.879 sort of remanded the issue back to the FCC. So 0:22:24.040 --> 0:22:26.639 the FCC is going to have to consider how to 0:22:26.680 --> 0:22:29.639 proceed bull skin terms of how can they possibly comply 0:22:30.320 --> 0:22:33.439 with the so called guidance of the Fifth Circuit. But 0:22:33.520 --> 0:22:35.800 what's really going to happen is the SEC is certainly 0:22:35.840 --> 0:22:38.119 going to appeal this to the Supreme Court. And like 0:22:38.160 --> 0:22:40.960 I said, the fact that other circuit courts have very 0:22:41.000 --> 0:22:44.879 recently ruled the exact opposite means that very likely the 0:22:44.920 --> 0:22:48.640 Supreme Court is going to resolve this, and I would 0:22:48.720 --> 0:22:51.399 imagine that universal Service, Well, there might be like some 0:22:51.440 --> 0:22:54.000 sort of ruling that puts the Fifth Circuit ruling on 0:22:54.080 --> 0:22:56.200 hold temporarily while the appeal continues. 0:22:56.600 --> 0:22:59.880 Yeah, the FCC has said that it intends to pursue 0:23:00.200 --> 0:23:05.360 all available avenues for review, so that leads them directly 0:23:05.400 --> 0:23:08.760 to the Supreme Court. And this was an opinion by 0:23:08.840 --> 0:23:13.040 the full Fifth Circuit to the original ruling by a 0:23:13.080 --> 0:23:18.160 three judge panel uphold the legality of the usf or not. 0:23:19.000 --> 0:23:22.240 Yeah, So, a three judge panel of the Fifth Circuit 0:23:22.359 --> 0:23:26.159 ruled in line with the other courts and said that 0:23:26.200 --> 0:23:31.040 the program is perfectly constitutional, and then the Court as 0:23:31.080 --> 0:23:33.719 a whole overruled that three judge panel. 0:23:34.080 --> 0:23:36.920 Coming up next on the Bloomberg Law Show, I'll continue 0:23:36.960 --> 0:23:41.600 this conversation with John Bergmeier, legal director at Public Knowledge. 0:23:41.760 --> 0:23:45.080 We'll talk more about the Fifth Circuit and it's seeming 0:23:45.119 --> 0:23:50.440 attempt to dismantle the administrative state all by itself. You're 0:23:50.480 --> 0:23:55.640 listening to Bloomberg. The Fifth Circuit Court of Appeals has 0:23:55.720 --> 0:24:00.600 limited federal agency power again, this time by limiting Congress's 0:24:00.680 --> 0:24:05.600 ability to delegate decision making to regulators. The appellate court 0:24:05.720 --> 0:24:11.280 found that the FCC's Universal Service Fund is an unconstitutional 0:24:11.400 --> 0:24:15.760 delegation of Congress's taxing authority. The ruling is novel and 0:24:15.880 --> 0:24:19.800 is contrary to the decisions of other circuits, establishing a 0:24:19.840 --> 0:24:23.280 circuit split with the six and eleven Circuits, which could 0:24:23.320 --> 0:24:27.040 catch the attention of the Supreme Court. I've been talking 0:24:27.040 --> 0:24:31.200 to John Bergmeier, legal director at Public Knowledge. Judge Ohman, 0:24:31.320 --> 0:24:35.399 who wrote the majority opinions, described the fee, which is 0:24:35.440 --> 0:24:39.000 collected from the telecommunication companies but is often passed on 0:24:39.040 --> 0:24:41.919 to consumer's phone bills, according to the court, as a 0:24:42.000 --> 0:24:46.440 multi billion dollar tax. Nobody voted for what's your response to. 0:24:46.359 --> 0:24:50.639 That, Well, Congress decided that the Universal Service program should 0:24:50.640 --> 0:24:53.680 exist and gave the SEC guidance. And the last I checked, 0:24:53.840 --> 0:24:58.080 Congress is voted in by the American people, So I 0:24:58.119 --> 0:25:01.320 don't really know where that is coming from. And furthermore, 0:25:01.359 --> 0:25:04.719 it's just not accurate to call it attacks. Most courts before, 0:25:04.920 --> 0:25:08.480 including the Fifth Circuit, have categorized it as a fee. 0:25:08.720 --> 0:25:11.520 That seems like a nuanced distinction. But you know, at 0:25:11.600 --> 0:25:13.639 tax is sort of like letted down the public. Everyone 0:25:13.680 --> 0:25:16.000