WEBVTT - Trump Acts to Keep Guantanamo Bay Prison Open

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight and analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,

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<v Speaker 1>and on Bloomberg dot com slash podcasts. President Donald Trump

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<v Speaker 1>issued an executive order to keep the prisoner Guantanamo Bay

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<v Speaker 1>in Cuba open. He made the announcement during his State

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<v Speaker 1>of the Union address, asking Congress to ensure that in

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<v Speaker 1>the fight against ISIS and al Qaeda, we continue to

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<v Speaker 1>have all necessary power to detain terrorists wherever we chase

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<v Speaker 1>them down, wherever we find them, and in many cases

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<v Speaker 1>for them, it will now be Guantanamo Bay. It's a

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<v Speaker 1>major reversal of the policy of former President Barack Obama,

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<v Speaker 1>who would order the detention facility be put on a

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<v Speaker 1>path off to closing and the terrorists suspects held there

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<v Speaker 1>tried or transferred to facilities elsewhere. European allies and Muslim leaders,

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<v Speaker 1>among others, have expressed strong opposition to how detainees have

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<v Speaker 1>been held at Guantanamo without charges and in grim condition.

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<v Speaker 1>Joining me is J. Wells Dixon, a senior staff attorney

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<v Speaker 1>at the Center for Constitutional Rights. Well, the facility holes

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<v Speaker 1>only forty one prisoners now and no new prisoners have

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<v Speaker 1>been sent there since Trump was elected. Is there a

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<v Speaker 1>reason to keep it open. There's no good reason to

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<v Speaker 1>keep it open. I think, unfortunately, the president's decision to

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<v Speaker 1>keep it open surprising. As unsurprising as it is, you know,

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<v Speaker 1>it is really confirmation of his willingness to pander to

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<v Speaker 1>his shrinking political base at the expense of national security

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<v Speaker 1>and human rights, because there is no, um, there is

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<v Speaker 1>no reason, actual foreign policy reason or national security reason

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<v Speaker 1>to keep it open. Quite quite the contrary, President Obama

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<v Speaker 1>tried to have Guantanamo closed and failed after some seven years.

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<v Speaker 1>Are their practical problems with closing it? Well, there's a

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<v Speaker 1>lot of blame to go around when it comes to

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<v Speaker 1>the fact that Guantanamo is still open. But I think

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<v Speaker 1>it's important to recognize that it was the policy consensus

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<v Speaker 1>of both President Obama and President Bush that the prisoner

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<v Speaker 1>Guantanamo needs to be closed, right and and Donald Trump's

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<v Speaker 1>uh decision to to make it the formal policy of

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<v Speaker 1>the United States to continue to detain Muslims there forever

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<v Speaker 1>is really very significant. Um, because you know, even if

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<v Speaker 1>even if you don't prioritize human rights, Uh, they're keeping

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<v Speaker 1>Guantanamo open undermines our national security. Right, Consider the President

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<v Speaker 1>talked about ISIS. Consider the fact that ISIS invokes the

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<v Speaker 1>very existence of Guantanamo as a recruiting tool. Right. ISIS

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<v Speaker 1>and other terrorist groups use the propaganda value of Guantanamo

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<v Speaker 1>to recruit new members to attack US. So keeping the

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<v Speaker 1>prison open is really counterproductive. Now, the detainees that are there,

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<v Speaker 1>have they been tried. Almost no one at Guantanamo has

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<v Speaker 1>been tried, you know, there are there have been a

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<v Speaker 1>total of seven hundred and eighty Muslim men and boys

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<v Speaker 1>held at Guantanamo since it opened sixteen years ago. And

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<v Speaker 1>you know, more people have died at Guantanamo than have

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<v Speaker 1>been convicted there. I mean, Guantanamo is really a complete

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<v Speaker 1>failure when it comes to prosecuting alleged terrorists. And UM,

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<v Speaker 1>you know, the that's not going to change, right because

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<v Speaker 1>it is endemic to UM to a prison that was

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<v Speaker 1>designed to be entirely outside the law. I mean, you know,

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<v Speaker 1>the for example, the nine eleven case has been going

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<v Speaker 1>on for years and years at Guantanamo and we are

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<v Speaker 1>nowhere near the actual start of that trial. I mean,

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<v Speaker 1>it's been a complete failure. And if you know, if

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<v Speaker 1>if I were um uh nine eleven victim or a

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<v Speaker 1>family member of a victim, I would be outraged that

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<v Speaker 1>the alleged perpetrators of of that terrorist attack continued to

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<v Speaker 1>be held in Guantanamo rather than be tried in federal court. Um.

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<v Speaker 1>President Trump, during his speech, and I take it he

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<v Speaker 1>was referring to the prisoners who have been released from Guantanamo,

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<v Speaker 1>said we foolishly released hundreds and hundreds of dangerous terrorists,

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<v Speaker 1>only to meet them again on the battlefield, including the

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<v Speaker 1>ISIS leader Al Baghdatti, who we captured, who we had

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<v Speaker 1>who we released? What about that? Have some of the

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<v Speaker 1>people released come back to fight against the US? Well?

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<v Speaker 1>President Trump's statements in that regard are absurd. For one thing,

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<v Speaker 1>All Beg Dotty was never held at Guantanamo. All Beg

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<v Speaker 1>Dotty was held into rock and he became radicalized because

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<v Speaker 1>of what the United States did to him in detention,

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<v Speaker 1>first of all. Second of all, the the the claim

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<v Speaker 1>that detainees who have been held at Guantanamo have gone

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<v Speaker 1>on to do bad things after their their release is

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<v Speaker 1>wildly overstated. Right, the Director of National Intelligence publishes figures

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<v Speaker 1>um statistics on this issue and has said that, you know,

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<v Speaker 1>less than five percent of the individuals held at Guantanamo

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<v Speaker 1>who were released by President Obama have gone on to

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<v Speaker 1>do anything contrary to the interest of the United States.

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<v Speaker 1>The other thing I'll say about it is, you know,

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<v Speaker 1>if a former detainee writes an editorial, for example, in

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<v Speaker 1>the New York Times criticizing American foreign policy, that gets

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<v Speaker 1>held against them. I mean, they get put on that

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<v Speaker 1>list as a consequence of that. UM. So you have

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<v Speaker 1>to be very skeptical. But you know, even if you're

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<v Speaker 1>not a skeptic and you're you're inclined to believe the

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<v Speaker 1>government take them at their word. When the Director of

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<v Speaker 1>National Intelligence says the figure is less than five percent,

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<v Speaker 1>statistically insignificant. There's been a lot of discussion about an

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<v Speaker 1>Apple software update released in early seen that slowed older

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<v Speaker 1>model iPhone models, but apparently there wasn't enough discussion by

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<v Speaker 1>Apple before the software update. The Department of Justice and

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<v Speaker 1>the Securities and Exchange Commission are investigating whether Apple violated

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<v Speaker 1>securities laws by not making proper disclosures about the software update.

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<v Speaker 1>According to people familiar with the matter, and Apple spokeswoman

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<v Speaker 1>told Bloomberg News that it has received questions from some

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<v Speaker 1>government agencies and is responding to them. My guest is

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<v Speaker 1>Armor ben Shahar, professor at the University of Chicago School

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<v Speaker 1>of Law. Armory, will you first described the slowdown and

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<v Speaker 1>Apple's response. Yes, a. Apple admitted that the software updates

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<v Speaker 1>deliberately slowed down the performance of old iPhones. They explained,

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<v Speaker 1>according to the apology that they posted online, that these

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<v Speaker 1>slowdowns were meant as an upgrade, not as a derogation

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<v Speaker 1>of the service, and they were intended to stop the

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<v Speaker 1>unintended shutdowns of phones with old batteries. So rather than

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<v Speaker 1>force people to replace batteries, they said, we would slow

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<v Speaker 1>down the phone and avoid that. Of course, the result

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<v Speaker 1>was the people head to replace not the batteries, but

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<v Speaker 1>the phones, not knowing that the problem is all stems

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<v Speaker 1>from the software updates. Now, our justice and the sec

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<v Speaker 1>looking at the same or different possible violations of the law.

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<v Speaker 1>So you know, securities fraud here is kind of a

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<v Speaker 1>byproduct or an echo of the fraud that is alleged

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<v Speaker 1>to have occurred in the product market. There are, by

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<v Speaker 1>the way, now many class action lawsuits and investigations by

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<v Speaker 1>state Attorney general for the possibility of fraud committed by

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<v Speaker 1>Apple in the product market against consumers. At the same time,

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<v Speaker 1>whenever there is duch fraud in the product market, it

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<v Speaker 1>affects the stock price. And Apple was bleeding, so it

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<v Speaker 1>made statements to the public and to their investors about

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<v Speaker 1>what they did and why. If these statements were in

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<v Speaker 1>some sense incomplete fraudulent misleading, that could lead to also

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<v Speaker 1>this echo of securities liability. Here's Apple CEO Tim Cook's explanation.

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<v Speaker 1>He told ABC News earlier this month that when the

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<v Speaker 1>company put out the sow Square update, we did say

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<v Speaker 1>what it was, but I don't think a lot of

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<v Speaker 1>people were paying attention, and maybe we could have been clearer.

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<v Speaker 1>Is that a good enough excuse to avoid legal action.

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<v Speaker 1>I don't think so. I mean, if you look clearly, yes,

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<v Speaker 1>Apple said things, and in their contract with consumers, in

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<v Speaker 1>the seventeen page of tiny fined print ten thousand words,

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<v Speaker 1>there is a statement and that says something like we

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<v Speaker 1>don't warrant YadA, YadA, YadA. You know how these things go.

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<v Speaker 1>So they said it in the contract, but they also

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<v Speaker 1>created a completely opposite impression for people when they recommended upgrade.

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<v Speaker 1>Those little flashes that you get on your phone or

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<v Speaker 1>a MacBook that constantly ask you to upgrade and suggest

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<v Speaker 1>upgrade full of all sorts of junk notices that prompt

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<v Speaker 1>people to do things. But the one thing that is

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<v Speaker 1>not was not said to people in these occasions is hey,

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<v Speaker 1>if you do that, by the way, your device will

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<v Speaker 1>no longer be as functional as it used to be. So,

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<v Speaker 1>you know, to let be, we have the real choice

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<v Speaker 1>that failure is more than an oversight. This isn't the

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<v Speaker 1>first time that Apple has been accused of deliberately throttling

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<v Speaker 1>the performance of its older phones. One accusation has been

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<v Speaker 1>that Apple deliberately slows down the old phones to make

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<v Speaker 1>people buy the new phones. Apple denies that has there

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<v Speaker 1>ever been any proof of this planned obsolescence. Well, you know,

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<v Speaker 1>the tech blogs are full of discussion about sorry about

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<v Speaker 1>the planned obsolescence of phones. It just seems a little

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<v Speaker 1>too much of a coincidence that as soon as devices

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<v Speaker 1>new devices and new generation of devices is rolled out,

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<v Speaker 1>the software of the old devices is slowed down in

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<v Speaker 1>a way that would obviously increase the demand and bring

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<v Speaker 1>Apples cash register for new phones. So This is kind

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<v Speaker 1>of circumstantial. I don't know that there is any stronger

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<v Speaker 1>evidence than that, but security class actions, pay litigation as

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<v Speaker 1>well as consumer litigation could try to smoke these things out.

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<v Speaker 1>As you mentioned. So, Apple is facing at least eight

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<v Speaker 1>class action lawsuits in federal courts in New York, California,

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<v Speaker 1>and Illinois, and one in Israel. So what are the

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<v Speaker 1>allegations there? The allegations there would be primarily deception, that

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<v Speaker 1>Apple violated consumer protection laws that require them to give

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<v Speaker 1>people the food truth, not just part of the truth.

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<v Speaker 1>There is you know, their precedent for these for businesses

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<v Speaker 1>trying to prompt people to do to buy, to purchase

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<v Speaker 1>more products that are not needed, and the courts have

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<v Speaker 1>found often in the past in such situations there is deception,

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<v Speaker 1>there is fraud, and if there is fraud then there

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<v Speaker 1>is there will be damages under state consumer protection laws

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<v Speaker 1>that could be very high. And I have to say, well,

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<v Speaker 1>I think that many class actions regularly filed against tech

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<v Speaker 1>companies are frivolous. This one since quite meritorious. Well now

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<v Speaker 1>throwing at that point. As part of its public apology,

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<v Speaker 1>Apple cut the prices of battery replacements in its stores

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<v Speaker 1>from fifty doll from which was a fifty dollar discount.

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<v Speaker 1>Would consumers get more than that realistically in a class action?

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<v Speaker 1>I mean often you get coupons or reimbursements or some

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<v Speaker 1>coupon for something in the future, and here there's already

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<v Speaker 1>a fifty dollar discount that Apple is given. Yeah, that's

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<v Speaker 1>a very good question. I think our class action apparatus

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<v Speaker 1>does not do well in terms of getting money into

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<v Speaker 1>the pockets of consumers. It does do well in terms

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<v Speaker 1>of getting money out of the pockets of businesses. If

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<v Speaker 1>Apple gets to pay into whatever fund to the lawyers

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<v Speaker 1>and somewhat to the consumers, it could be expensive, especially

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<v Speaker 1>its statutory images are triggered, it's gonna be hard to

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<v Speaker 1>identify the exact loser users who were deceived, and therefore

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<v Speaker 1>these class actions are not going to be easy to

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<v Speaker 1>to succeed in overall. But the possibility is there for

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<v Speaker 1>significant bill for Apple legal bill. So I'm read about

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<v Speaker 1>a minute here, the government has requested information from Apple,

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<v Speaker 1>According to people who asked not to be named, What

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<v Speaker 1>kind of information would these agencies be looking for? Is

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<v Speaker 1>it a smoking gun memo or something less the That's

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<v Speaker 1>a good question. It's you know that Apple keeps insisting

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<v Speaker 1>that what it did was in good faith, that it

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<v Speaker 1>was not their intent to increase the demand for new

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<v Speaker 1>devices to just to help consumers avoid unplanned shutdowns of

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<v Speaker 1>their phones. That is the question, because under many of

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<v Speaker 1>these statutes that create liability, the question is why towards

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<v Speaker 1>Apple's intent and the I think that the information that

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<v Speaker 1>the government and UH plaint exployers are trying to get

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<v Speaker 1>out is information about what was going on lots for

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<v Speaker 1>the Apple thinking about all right, about thirty seconds yes

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<v Speaker 1>or no answer here? How likely is there to be

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<v Speaker 1>an enforcement action here? Actually not yes or no? One

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<v Speaker 1>to ten yes not probably not enforcement action, but yes,

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<v Speaker 1>long dragging class actions and eventually probably a very large settlement.

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<v Speaker 1>All right, Thanks so much. That's um re Ben Shahar,

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<v Speaker 1>a professor at the University of Chicago School of Law.

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<v Speaker 1>Thanks for listening to the Bloomberg Law Podcast. You can

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<v Speaker 1>subscribe and listen to the show on Apple podcast, SoundCloud

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<v Speaker 1>and on Bloomberg dot com slash podcast. I'm June Brosso.

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<v Speaker 1>This is Bloomberg