Could The Visa Waiver Program Be An All Access Ticket For Terrorists? A Look Into The Program’s Problems & Potential Solutions

Josh Stewart, CC BY 2.0

Josh Stewart, CC BY 2.0

By: Mahira N. Khan

The January Paris attack against French magazine, Charlie Hebdo, the ISIS revolution, and the increased threat of foreign terrorist fighters (FTFs) question whether the Visa Waiver Program (VWP) threatens U.S. national security.  Many U.S. lawmakers demand changes to the current rules to control the entry of foreigners into the U.S. without visas, relying on the fear that terrorists may take advantage of the program to carry out future attacks within U.S. borders.

The VWP is a program of the U.S. Government administered by the Department of Homeland Security (DHS) in the mid-1980s that enables U.S. citizens or nationals of designated countries to travel to the U.S. for tourism or business up to ninety days without obtaining a visa.  Thirty-eight countries currently participate in the VWP, including the United Kingdom, Holland, Germany, and Canada.  The program allows up to nineteen million visitors to pass through U.S and the only thing a VWP traveler needs to do before traveling to the U.S. by air or sea is fill out an Electronic System for Travel Authorization form (ESTA) online. The form only costs fourteen dollars and automatically presumes that the applicant’s statements about prior visa denials and legal infractions are true.   When traveling via the VWP, travelers pass through ports of entry with screening.  The only barrier to U.S. entrance is a Customs and Border Protection (CBP) officer at the port of entry, who stamps the passport with or without minimal questioning and with no means of verification.

The program was conceived in a time when citizens of “traditional European allies were not viewed as threats.” However the program took a turn after the September 11th attacks when convicted September 11th plotter and French national, Zacarias Moussaoui, boarded a flight to the U.S. via the VWP.  Similarly, British national Richard Reid (the “shoe bomber”) evaded security checks that would otherwise have been performed for non-VWP travelers.  Perpetrators of the 1993 World Trade Center attacks Ahmed Ajaj and Ramzi Yousef also entered the U.S. through the VWP using photo-substituted Swedish and British passports.

The Charlie Hedbo shootings that killed seventeen people in France and the surge of foreign fighters from Europe traveling to Syria to join the surging Islamic State group have prompted bipartisan legislative efforts by U.S. politicians who call for changes to the VWP. Senator Feinstein, a leading Senate voice on national security, plans to introduce legislation that would help strengthen the VWP’s security.  While her office did not provide any details of the proposed plan, she commented on the threat of sleeper cells posed by the current state of the VWP, stating, “[terrorists] can come back from training, they go through a visa waiver country and they come into this country … we have a big problem here.”  Representative Michael McCaul, Chairman of the House Homeland Security Committee, voiced similar concerns and recently co-sponsored legislation that would require DHS to consider additional steps to screen travelers more thoroughly.  The Homeland Security Committee is also investigating the VWP as a part of a “broad probe” into whether the Obama Administration has done enough to stem the flow of foreign fighters returning back to their European homes from Syria, and then potentially travel to the U.S. without a visa and carry out attacks here.  Some are even in favor of abolishing or suspending the program entirely.  In September, Hawaii and Pennsylvania, introduced bills that would suspend the VWP for countries who nationals have joined or been trained by the Islamic State.

The main concern the U.S. faces, as addressed by Law Professor Nathan A. Sales, is the “profound and growing threat from radicalized Europeans.”  There is an ever-increasing fear that extremists who have received training in Iraq and/or Syria and since returned back to Europe may eventually try slipping into the U.S. undetected through the VWP.  Reports estimate that at least 3,000 of the Islamic State’s fighters come from Europe, with an estimated 1,000 from France.  However, suspending or abolishing the program is not an option even with these statistics.  U.S. authorities and the aviation industry worry that discarding the VWP would be problematic as it plays an important role in economic growth and “represents an important element of lawful commerce” between the U.S. and its international partners.  According to studies, in 2013 there were over seventy million tourists in the U.S. who added about $181 billion to the U.S. economy, spending around $4,500 per day while traveling in the U.S.

Suspending or abolishing the VWP would also discourage tourism almost entirely.  Obtaining a visa is often very difficult and expensive.  To obtain a visa, a traveler would have to visit a U.S. consular office, fill out lengthy documents and have a personal interview, and then pay several fees on top of a $160 fee for each visitor visa.  Moreover, the fees are non-refundable in the event the visa is denied.  In other words, cancelling the VWP would do more damage to the U.S. than it would provide protection, some experts say.

Homeland Security Secretary Jeh Johnson agrees and says, “the program is too valuable to discard” and offers a different solution, which provides: “To deal with the foreign fighter problem potential, the foreign fighter threat presented now globally, we need to develop more robust information sharing with our key counterterrorism allies overseas to share information about individuals of suspicion.

In 2007, Congress enacted legislation that called on VWP-member nations to enter into various security agreements; however, a vast majority of the thirty-eight member nations never signed on to the agreements.  The bill, known as the Implementing Recommendations of the 9/11 Commission Act of 2001, required member nations to enter into the following agreements:

  1. Homeland Security Presidential Directive (HSPD)-6: Requires member nations to share watch list information on “individuals known or appropriately suspected to be or have been engaged in the conduct constituting, in preparation for, in aid of, or related to terrorism” and then use that information in screening and protective processes
  2. Preventing and Combatting Serious Crime (PCSC) Agreement: Requires member nations to mutually share criminal history information and biometric data (i.e., fingerprints, and DNA) for law enforcement purposes
  3. Lost and Stolen Passports (LASP) Agreement: Requires nations to report, or make available through INTERPOL or other means as designated by the Secretary of Homeland Security, any information about the theft or loss of passports within a “strict time limit”

These existing intelligence and information sharing agreements should be fully implemented as originally intended.  Additionally, there should be additional protocols that allow authorities to identify “unknown threats,” or travelers who have managed to escape watch lists.  This would involve sharing airline reservation data or travelers who have traveled between VWP countries and “hot spots” such as Iraq and Syria.  Law Professor Nathan Sales believed that the Charlie Hebdo gunman Said Kouachi could have been tracked down through this measure because Kouachi was known to have traveled from France to Yemen through Oman in 2011.

The increased FTF threat also prompted action by the United Nations.  In September 2014, the U.N. Security Council unanimously passed Resolution 2178, which requires member nations to, among other things, implement effective border controls and controls on issuance of identity papers and travel documents, implement thorough measures to prevent counterfeiting and forged identity and travel documents, require airlines to provide advance passenger information to appropriate national security authorities to detect FTF movements, and improve international cooperation and information sharing for purposes of identifying FTFs and their travel patterns.

Stricter enforcement of the 2007 legislation along with the U.N. Resolution could make it possible to track the movements of known and potential threats.  Increased information collection and sharing will allow member nations to recognize travel patterns consistent with those of FTFs.  By tracking down these travelers and affording a little bit more scrutiny at the airports, there would be no need to abolish the VWP.  The U.S. will avoid exposing itself to great economic harm and keep FTF threats out of its borders.


Wrong Move: How the President’s Actions have Helped Create a More Dangerous Russia.

ONotkiLBy Victor Paduchak

It has been said that one of the most prolific and memorable images of 2014 is the Before and After take of Ukraine’s Independence Square. On the global scale, 2014 was arguably one of the most dangerous and violent years in recent memory. The world witnessed everything from the spread of Ebola, the rise of ISIL in the Middle East as well as the United States’ response, to Taliban bombings of Pakistani schoolchildren, the ongoing Syrian civil war, the kidnapping of 185 women and children by Boko Haram, and the crisis in Ukraine.

The armed conflict in Ukraine has ravaged the country for almost a year now. Beginning with the Russian invasion and hostile annexation of Crimea in February of last year, the conflict quickly escalated when separatist factions of eastern Ukraine wanted to break off and forge stronger ties with Russia. The war in eastern Ukraine has claimed the lives of more than 5600 people, and displaced 1.5 million more. A shaky ceasefire between the Ukrainian government and separatist forces established in September has been completely shattered in recent months, with recent peace talks between the sides coming to a full halt.

Behind this conflict lies a former superpower: Russia. In recent months, through routine denials of all accusations of its continued support of the war, Russia sent thousands of their own troops into Ukrainian territory, as well as allowing countless numbers of volunteers through their borders to fight a “holy war” on behalf of the “Russian Empire.” Evidence has surfaced showing that Russia had planned an invasion of Ukraine even before the previous government collapsed last February. Despite the agreement of a recent ceasefire agreement, both sides have been slow to fulfill their promises, with fighting continuing and a key strategic town, Debaltseve, recently falling under rebel control. While there has been minor progress in fulfilling the terms of the recent Minsk ceasefire deal, the conflict, continually escalating, has no foreseeable end in sight.

Since the beginning of the conflict, the United States has issued a number of executive orders and legislation to both aid Ukraine financially, promising $1 billion in loans, and sanctioning sections of the Russian economy and specific personnel close to Vladimir Putin. As a result, combined with the recent dip in oil prices, the economy in Russia has grounded to a near halt. Yet, the United States has failed to dissuade Russia from its continued involvement in the proxy war. Despite recent news such as the extension of European Union sanctions against Russia, the fighting continues on in Ukraine, with Russian troops and volunteer supporters continuing to flood over the border.

President Obama continually emphasizes that “it’s not a new Cold War,” and that sanctions are the key to forcing Russia to back down. In his recent State of the Union speech, the President mentioned Russia basically in passing, and only emphasized that we must “stay the course” in our current answers to Russian aggression. By this logic, it would seem that by now, with the Ruble almost completely devalued, Russia would be considering pulling out of Ukraine and ending their proxy war in the face of total economic collapse. And yet, the war rages on.

One major mistake that President Obama made in his calculations is exactly how far Putin, and the Russian people, are willing to go to see this conflict through to the end, the impact his sanctions are having. 76 percent of the Russian people consider state media to be the trustworthy news source, with only 5 percent saying that Western media is trustworthy, Gallup polls have shown. Russian approval of Putin skyrocketed by nearly thirty percent in the last year to an all-time high, while favorable opinions of the West simultaneously fell into single digits. Most Russians believe the war in Ukraine was caused by the CIA and Western intervention, in an attempt to cause a collapse of Russia. The economic sanctions imposed on their country only embolden the Russian people, causing them to coalesce around their leader. It paved the way for Putin to win popular support, and to centralize his power and fashion it into a new dictatorship. Recently, an anti-West, pro-Putin demonstration in Moscow drew 40,000 people, as a testament to the dangerous current of thought in Russia today.

With recent sharp comments claiming that Russia is “undermining the global order,” the United States appears to be reconsidering its previous approach, albeit slowly. With the recent Minsk ceasefire agreement shaken, new sanctions against Russia are being considered. President Obama and Secretary of State John Kerry are looking closely at the possibility of supplying arms to the Ukrainian government for defensive purposes. As Ukraine’s air force is mostly eradicated, and with troop casualties mounting daily, this sort of aid is desperately needed. But is it enough? Or is it too little, too late?

There is no question that the situation in Ukraine is a grave one. This is however only a symptom of a larger issue, that of an aggressive and reinvigorated Russia. The events taking place in Ukraine today mirror that of Russia’s invasion of Georgia in 2008, except on a wider, bolder, and deadlier scale. The United States, through its inaction, effectively granted Russia permission to invade a neighboring country, forcibly annex parts of it, all at the cost of a few months, possibly a year of economic and travel sanctions. It is no wonder Hillary Clinton compared Putin to Hitler last year. The continued sanctions that President Obama presses upon Russia does naught but invigorate the Russians against the West, making them more willing to support warmongering, authoritarian dictators and the wars that they are bound to start. The climate in Russia is a strongly patriotic, nationalistic one, with general ire directed toward the West. The President’s continued underestimation of this fact may lead the world down a very dark path in the coming years.

Perhaps President Obama is right in saying that we are not headed toward a second Cold War. However, the President cannot deny there is a growing gap, a rivalry between the East and the West that seems to draw ominous parallels with the Cold War. Russia may not be as powerful as the Soviet Union once was, but it certainly likes to think so, and that can be just as dangerous, particularly when some countries think they could not withstand an attack from it.

Time For The Election Assistance Commission To Staff Up

Courtesy of the University of Iowa

Courtesy of the University of Iowa

By: Tara Schonhoff

Following the chaos of the 2000 elections (uncounted ballots; dangling, dimpled, and pregnant chads; and the Supreme Court choosing the President in Bush v. Gore), Congress passed the Help America Vote Act (HAVA) of 2002 to create some standards and support for state election administrators. HAVA provided funds to states to replace outdated voting machines, it created minimum standards for states to follow, and it created a new federal agency to serve as a clearinghouse for election administration – the Election Assistance Commission (EAC).

The EAC is designed to have two Republican commissioners and two Democrats. Its small size, Silver Spring office, and employees with hands-on experience in election administration evidence the agency was designed to be a pragmatic, less flamboyant tool for furthering election quality.

HAVA’s creation of the EAC fashioned a bipartisan resource of election practices for the states that was unique: aiding each state’s unique election needs through best practices. Congress overwhelmingly passed HAVA with a vote of 362 to 63 in the House, and 92 to 2 in the Senate (only Senators Clinton and Schumer, the current chair of Senate Rules and Administration, voted against it). Unfortunately, only a few years after its creation, the agency quickly lost its commissioners and, thus, its power. By 2011, the EAC’s four commissioner spots were all vacant, and the agency has not been fully staffed since. Left powerless, the EAC has not held a public meeting since 2011 and has stalled Kobach v. EAC in the 10th Circuit Court of Appeals, debating states’ permission to alter voter registration forms. At that time, the House attempted to abolish the EAC altogether. Although that proposal failed, opposition to the agency continues with this year’s House budget proposal attempting to defund the EAC.

President Obama nominated two Democrat commissioners last summer and two Republican commissioners this summer. After returning from this August’s recess, the Senate Rules and Administration Committee finally started to focus on restocking the agency’s commissioners. Disappointingly, this month they failed to reach a quorum following September’s hearing on the Republican nominees, postponing a vote on commissioners yet again. Additionally, after waiting more than three years for a vote on her nomination, Myrna Perez withdrew her name.

Election lawyers predict that especially less experienced partisan nominees may continue to stall EAC progress. The Democrat’s choice of Matthew Butler is particularly unlikely to be confirmed if a vote is held after the Republicans take control of the Senate in January. This choice has already discouraged election lawyers and Democrats who see such partisan picks as another move towards the EAC slipping into gridlock.

The war against the EAC is a microcosm of a national voting war: those fearful of voters losing access or votes going uncounted versus those who fear election fraud and voter impersonation. If commissioners were finally appointed and the EAC remain fully funded, it could be a useful tool for those on both sides of this war.

Concern over voter impersonation has drastically increased the number of states with voter ID laws. In contrast, these laws have received backlash as suppressing votes, even at the Supreme Court level, calling these qualifications “modern poll taxes.” With the EAC’s authority to set minimal state standards for election administrators and serve as a clearinghouse for states to share successful practices, it could preclude the need for voter IDs or at least help maintain voter access to the polls when these laws are implemented.

Paper ballots lost credibility with the 2000 elections, leading many to switch to electronic equipment. But with voting technology changing drastically between election cycles, states need the EAC’s guidance. The EAC is a solution to this problem with its ability to certify voting machines in a market that is often questioned, and its dispersion of state funding for updated voting systems.

EAC nominee Thomas Hicks’ expertise as Senior Elections Counsel on the House Committee on Administration and would-be commissioner Christy McCormick’s time coordinating elections in Iraq and litigating at the DOJ Voting Section are two additional reasons why the Senate should act quickly to finish the nomination process and get the EAC up and running.

Florida’s 2000 ballot fiasco may be forgotten, but a repeat of this disaster is all too possible. The time is ripe for the EAC to staff up and set state standards before the 2016 Presidential election.

Voids left by the Federal Election Commission (FEC)’s partisan gridlock and the Voting Section of the DOJ’s inability to enforce portions of the Voting Rights Act (VRA) following Shelby County v. Holder make the EAC even more important as a voice of consistency in national elections.

Reforming Privacy Laws to Reflect How We Use Technology

Jhaymesisviphotography CC BY 2.0

Jhaymesisviphotography CC BY 2.0

By: Tiffany Sommadossi

Unsurprisingly, 57% of adults in a recent survey conducted by the Pew Research Center feel insecure sending private information by e-mail. Most Americans may trace their insecurities about data protection to the Snowden disclosures, but since then many have failed to pay attention to the impact outdated statutes, like the Electronic Communications Privacy Act (ECPA), can have on how their information is accessed by the government. Resisting ECPA reform is not to anyone’s advantage – it contributes to confusing jurisprudence and most of all, it leaves us with an illogical patchwork of protection for our electronic communications.

Among other things, ECPA, a 28-year old law, governs how law enforcement accesses mobile-phone data, e-mail, and other electronic communications. Documents stored on the cloud, e-mails older than 180 days, mobile-phone location data, and arguably all opened e-mails are not protected by the warrant requirement laid out in the Store Communications Act (SCA) of ECPA. For instance, law enforcement has to get a warrant to get stored e-mails from someone’s computer, but ECPA allows law enforcement to access, without a warrant, the exact same e-mails when they’re stored with service providers.

There has been call for ECPA reform since as early as 1998. One of the strongest proponents for reform, Senator Patrick Leahy, has stated that ECPA is “outdated from both a national security point of view and from a privacy point of view.” Some hope that Congress will use the lame-duck session to make ECPA reform a reality. Two ECPA bills, the Electronic Communications Privacy Act Amendments Act, S. 607, and the Email Privacy Act, H.R. 1852, both received broad bipartisan support. The House bill has over 270 cosponsors. Both bills suggest almost identical amendments to how electronic communications can be disclosed to law enforcement. The ECPA Amendments Act focuses on heralding in a uniform warrant requirement for all content, regardless of how old the requested e-mails are or whether they’ve been opened. The bill arguable takes the Sixth Circuit’s position in United States v. Warshak, that the Fourth Amendment protects all e-mail, whether it’s five days or five years old.

Part of the problem with ECPA is that it does not accurately take into account how we use data services like e-mail and cloud computing today. Therefore it can’t begin to provide us with the protections we may want. Many criticize ECPA and other technology-affected statutes as being outdated because they don’t incorporate new technologies. However, the problem seems more to be that they don’t reflect how people use technology. Although e-mail has existed since the early 90’s, the way in which we use e-mail to communicate has drastically changed. Using e-mail today is more akin to relying on first-class mail to securely transport all private communications pre-internet.

Also, now we distinguish between the non-content and the content of our communications. In both ECPA reform bills, an administrative subpoena can compel the disclosure of names, addresses, telephone records, and source of payment for the provider’s service (including credit card or bank account number). E-mail subject lines and location data are also non-content. The bills do little to provide the same protections to both the non-content and the content of our communications. Again, this highlights how policymakers are not focusing on how we use technology. Since inboxes are inundated with e-mails on a daily basis, many put revealing details in subject lines or send quick notes in subject lines (rather than put the message in the body of the e-mail). Even as we adopt new ways to use the same technology we risk making laws outdated.

Courts have also found ECPA to be problematic. For instance, the statute has left courts unsure about when to let law enforcement have access to stored location data. The majority of courts have decided that a search warrant is needed, as is the case for real-time cell phone tracking, but this ambiguity in the law unintentionally leaves some Americans with more data protection than others. Even more, the Sixth Circuit—Warshak—is the only federal appellate court thus far to hold that the Constitution protects stored e-mails; most other courts have afforded varying levels of protection depending on whether the e-mail is in transit or in storage.

ECPA further shows its age with respect to extraterritoriality. In the current age where data is stored all over the world, law enforcement should have clear guidelines in how far it can reach to access data. For the first time ever, an American court is deciding whether the U.S. government can assert a right to electronic data stored by a U.S. provider thousands of miles away in a foreign country. The government tried to make Microsoft comply with a request to hand over copies of e-mails stored in its data center in Ireland, but the company refused, arguing that e-mails stored abroad are beyond the reach of the U.S. government under the SCA. Litigation ensued. The government insists that a subpoena can be used to compel the disclosure of opened e-mails, regardless of how old they are. In other words, the government is arguing that it can obtain non-content and content communications without a warrant depending on the age of the e-mail. The SCA does require the government to get some level of authorization before the government can obtain the content of stored communications more than 180 days old—older e-mails can be sought using a subpoena, a court order issued under 18 U.S.C. § 2703(d), or a warrant.

One of the criticisms of allowing a subpoena, with no probable cause requirement, to compel the disclosure of content is that it’d contradict Warshak. Some contend that the court in Warshak held that a warrant is needed to get the content of all e-mails. But do telecommunication companies remove themselves from the protection of Warshak by storing data in overseas data centers? The government does not think there’s much of an extraterritorial question here because when e-mails stored abroad are handed over by a U.S. provider to U.S. government officials in the U.S., then no search or seizure has occurred abroad, and thus no statute has been applied extraterritorially. Also, the government has argued that an ECPA warrant is a hybrid between a subpoena and a warrant, so the location of a warrant recipient is all that matters—as with a subpoena—for purposes of section 2703(a).

Civil liberty groups have applauded ECPA reform as a leap forward in strengthening privacy protections. Yet, the fact remains that in embracing easier and more efficient forms of communications we have relinquished a great deal of control over “our” information and information about us. Our current digital age is driven by the mobility of information, but our laws make us vulnerable when we embrace that mobility. However, the problem is less that that our laws can’t keep up with our ability to constantly invent new technologies, and more that the law will not keep up with our morphing technological behaviors. It would probably take a miracle for an ECPA reform bill to get enacted during the lame-duck session, considering the surprising recent defeat of another privacy bill, the USA Freedom Act. But legislative reforms are needed to guide a national rethinking of what constitutes an invasion of privacy in the digital age.


Keystone Pipeline: Crossing Borders and Party Lines?

Trans Canada Keystone Oil Pipeline By: shannonpatrick17 CC BY 2.0

By: Chelsea Morin

After six years of failed attempts made by House Republicans and Democrat blocking efforts, Congress has finally acted together to bring the Keystone XL Pipeline legislation to a vote. The catalyst? A Louisiana Senate runoff election that is set to take place December 6 between Senator Mary Landrieu (D) and Representative Bill Cassidy (R). These Louisiana politicians raced to get the Keystone Pipeline approved because of its popularity among residents and the economic impact that it is expected to have on the state.

As the name denotes, the Keystone Pipeline is a pipeline that would double the flow of heavy tar sands oil, around 830,000 barrels per day, from Canada down to Gulf Coast refineries. The pipeline would be expanded to transport the Canadian crude oil across the United States, meeting the demands of U.S. markets while also providing access to developing domestic oil supplies from Montana and North Dakota.  As a result, U.S. reliance on foreign oil supplies from Venezuela, Mexico, the Middle East, and Africa is expected to decrease. Last year, the State Department issued a report presenting its findings that the pipeline construction would contribute to the U.S. approximately 42,100 jobs, $2 billion in earnings, and increase the U.S. GDP by $3.4 billion. Additionally, the report found that Keystone XL would have little impact on climate change.

The State Department addressed environmental concerns in its report, stating that the corrosiveness of the tar sands oil is not the reason behind past pipeline bursts and leakage. Rather, such issues are caused by faulty valves and seals. To prevent any environmental damage, TransCanada has willingly agreed to 57 new safety procedures and plans to conduct inspections every two weeks on the pipeline to ensure that the valves and seals remain secure. TransCanada is also wholly responsible for any and all damage caused by the pipeline during maintenance and construction, which shows that the potential for neglect is low. Currently, crude oil is transported by rail, barges, and tank trucks – far more dangerous and expensive methods than Keystone XL.

Over the years, many have questioned whether Congress even has the power to approve the pipeline. In a 1968 Executive Order, President Lyndon B. Johnson officially vested the State Department with the permitting authority for “border crossing facilities,” which specifically included oil pipelines. However, Congressional Research Services (CRS) settled this issue and explained that, “if Congress chose to assert its authority in the area of border crossing facilities, this would likely be considered within its constitutionally enumerated authority to regulate foreign commerce.” Congress’s power to regulate foreign nations is found in the Commerce Clause of Article I, Section 8, Clause 3 of the Constitution.

At the state level, Nebraska is also questioning the constitutionality of the pipeline’s approval. A Lancaster County District Judge recently struck down a state law that authorized Nebraska’s Governor Dave Heineman to approve Pipeline XL’s route through the state. In the opinion, the judge declared the Governor’s action “null and void” because the new law unconstitutionally stripped the Nebraska Public Service Commission (“PSC”) of its permitting and routing authority granted to it by the state’s Major Oil Pipeline Sitting Act (“MOPSA”). The judge found that the Legislature could not “divest the PSC of jurisdiction . . . and vest such power in another governmental agency, body of government, or branch of government, except the legislature.” While the Legislature is permitted to enact “specific legislation” that preempts the PSC’s control, it “cannot absolutely and totally abandon or abolish constitutionally conferred regulatory control.”  The law’s defender, Nebraska Attorney General Jon Bruning, plans on appealing the decision. In the meantime, the Nebraska legislature may restore the PSC with the authority to rubber-stamp the route.

On November 14, the House passed the Keystone XL legislation (for the ninth time) that was introduced by Representative Cassidy. The legislation simply provides that TransCanada, a Canadian energy company, “may construct, connect, operate, and maintain the pipeline and cross-border facilities” as described in its application submitted to the State Department in 2012. Over on the Senate side, Senator Landrieu, motivated by the desire to keep her senate seat, brought her identical legislation up for debate, stressing the need for bipartisanship action as well as the pipeline’s economic benefits. On November 18, the legislation fell one vote short of the requisite 60 votes to overcome a filibuster.

Does the bill’s failure in the Senate mark the end of Keystone? As for the President’s approval, Keystone XL’s fate looks anything but hopeful, unless the new Senate is able to secure the requisite 67 votes for the bill’s passage. Regarding the attempts to end-run presidential approval, White House press secretary Josh Earnest told reporters that “[t]he administration . . . has taken a dim view of these kinds of legislative proposals in the past . . . [which] has not changed.”  Sources say that pressure exerted by the environmental activists has been the primary reason for the President’s stance on the pipeline matter. Over the years, President Obama has opposed the pipeline’s development by rejecting permit approval on multiple occasions and lobbying the Senate to reject amendments for the bill’s congressional approval. These actions have infuriated the pipeline’s most avid supporters, which include Republicans, moderate Democrats, oil companies, labor unions, and the Canadian government. Terry O’Sullivan, General President of the Laborer’s International Union of North America, expressed his view that “the project is not just a pipeline, but is a lifeline for thousands of desperate working men and women. The administration chose to support environmentalists over jobs – job-killers win, American workers lose.”

Soon-to-be Senate Majority Leader Mitch McConnell (R – KY), implied that the fight to pass the legislation is far from over. McConnell made it clear that the incoming Republican-led Senate will revisit the legislation as soon as it convenes early next year. Fortunately, the bill is expected to pass with at least 63 votes and supporters are confident that they can muster up the additional 4 votes to secure a veto-proof bill. Keystone XL will provide the U.S. economy with thousands of jobs, contribute billions towards the U.S. GDP, ensure energy security, and serve as a safe method of crude oil transportation. Thus, Keystone XL is more than a political pawn in the hands of legislators –it’s a device that crosses party lines, guaranteeing American jobs with relatively little to no danger to the environment.

Yes Means Yes: California’s New Approach to Sexual Assault on College Campuses

Courtesy of Marcin Wichary

Courtesy of Marcin Wichary

By: Alex Baptiste

California’s new sexual assault law, SB 967, nicknamed the “Yes Means Yes” law, was signed into effect on September 28, 2014 by California Governor Jerry Brown.  It imposes a new standard for determining whether a sexual assault has occurred. The law requires the use of the new “affirmative standard” when investigating sexual assaults and is to be used at all California colleges and universities that receive state funds for financial aid.  Where once there was “no means no,” California now has “yes means yes.” The affirmative consent standard is the first to be enacted as part of state legislation and is regarded as a positive step in protecting a victim’s rights in sexual assault cases.

In 2007, the Department of Justice (“DOJ”) released the findings of a two-year study on sexual violence against women. The study, involving over 5,000 young women, ages 18-25, found that one in five women had been the victim of an attempted or completed act of sexual violence.  In the years that have passed, sexual violence on college campuses remains a major concern of parents, students, and school administrations. Not much has changed.  A 2010 study conducted by the National Violence Against Women Survey corroborated the DOJ study, also finding that one in five women, and one in seventy-one men, have been raped at some point in their life.

California is one of the few states at the front lines of redefining rape and prosecuting sexual assault offenders.  The vast majority of states adhere to the common law principle that once consensual intercourse begins, a man cannot be prosecuted for rape, even if the woman withdraws her consent during the act. However, California is one of seven states to broaden the definition of rape to include the withdrawal of consent.

Prior to SB 967, schools had discretion on the types of investigative methods deemed to be appropriate when reviewing claims of sexual assault. Some of these methods were effective, some were not.  Under the new law however, schools must determine if there was an “affirmative, conscious, and voluntary agreement to engage in sexual activity.”   In case of a question about alcohol-induced consent, the law explicitly states that someone who is drunk, asleep, or incapacitated in any way cannot give affirmative consent.  Furthermore, a “lack of protest or resistance does not mean consent, nor does silence mean consent.”  The law also requires universities to acquire “victim-centered” sexual assault response policies and implement comprehensive programs to prevent assault.

While a “yes means yes” approach may not seem different from “no means no,” the change is more significant than it appears.  Under the previous “no means no” approach, the victim carried the burden to prove they made it clear to their attacker the advances and contact were unwanted.  Now, the victim is given the benefit of the doubt and the accused must show, by a preponderance of the evidence, they had affirmative consent.  In a society that views most rape laws to lay blame on the victim, this slight shift makes a notable impact.

Critics question how this new legislative approach will be more effective than “no means no.”  The National Coalition of Men urged Governor Brown to veto the bill, arguing that the law “presumed the veracity of the accusers and presumes the guilt of the accused.”  Others argue the law tramples an individuals’ due process rights and continues to ignore the reality that sexual assaults are not truly a matter of miscommunication so much as a matter of an aggressor taking what he wants and not caring if consent is given.  There are also concerns because the law makes a history of prior sexual relations irrelevant, that it redefines consent in such a way sexual activity of college couples would technically be considered sexual assaults if affirmative consent is not explicitly given.

Despite the criticism, there is significant support for the “yes means yes” approach.  California’s adoption of this new law challenges other states to enact similar laws to clean up the many issues we hear about on college campuses across the country.  Earlier this month, Harvard Law School professors published an open letter criticizing the university’s newly enacted policies aimed at preventing sexual harassment.  Students of the university have come out in support of changing to an affirmative consent policy. Other universities are also experiencing pressure from their student body to take sexual assault claims more seriously and adopt an affirmative consent policy.

Whether “yes means yes” answers the problems college campuses face when confronted with sexual assault claims remains to be seen.  It seems, however, to be a step in the right direction to fighting the epidemic of sexual assault among young people.  As students and faculty across the country lobby for similar standards and protections, it will be interesting to see how other schools and states rise to the new standard set by California.