Thursday, January 13, 2011
Brittany Haglund, Widener Law '11, is President of Widener's Military Law Society and a military spouse. She writes about Congress' recent repeal of President Clinton's Don't Ask, Don't Tell Policy...
On December 18, 2010, Congress voted to repeal President Clinton's Don't Ask, Don't Tell policy (DADT). Six days later, a smiling President Obama signed the repeal. This should be a major victory but it leaves me feeling dissatisfied: haven't we been here before? Our country always seems to be struggling with discrimination of some type in the military. Prior to the Korean War, racial segregation was the norm, and it took a second world war for permanent positions in the military to be made available to women. Now, proponents of DADT claim that discrimination of openly gay servicemembers is necessary to ensure that the morale and cohesion of the military remains strong. However, are these not the same declarations once made by supporters of racial segregation and an all-male military? With the magic of hindsight, we can see that the few hiccups that occurred after outlawing racial and sexual discrimination in the military did not single-handedly destroy the group mentality necessary for an efficient military.
Even with all of the historical evidence, supporters of DADT fear the consequences of the repeal will be disastrous. America's military is comprised of volunteer members, the majority of whom are arguably from religious and conservative areas of the country. Without DADT, it is feared that the pool of volunteers may dry up because they will be unable to reconcile their beliefs with the new law while continuing to serve. Others save their reservations for those serving in combat zones, arguing that hate crimes against homosexuals will run rampant and numerous lives will be lost because servicemen and servicewomen will not trust each other. Again, it is unnecessary to engage in these what-ifs because history has already shown us that the military will endure. After President Truman signed an executive order ending racial segregation in the military, there was not a significant drop in the number of troops who voluntarily enlisted, although there is an argument that the Vietnam draft a few years later ameliorated any possible decrease in troops. As for troops in combat conditions, there is a famous quote from the Second World War that I believe applies equally to the situation at hand. The quote states: "There are no atheists in foxholes." Well, I say: "There are no hate mongers in combat." This may be a slight exaggeration, but it seems that with the type of guerrilla warfare soldiers face in the Middle East, it is doubtful they will have the time or energy to invest in hating someone who is not a threat to their mission. After all, the enemy of my enemy is my friend.
Regardless of DADT supporters' views, it has been repealed and rightly so for both constitutional and moral reasons. Prior to the Supreme Court' decision in Lawrence v. Texas, 539 U.S. 558 (2003), DADT only had to survive a lenient standard of review to be upheld. This is because in Bowers v. Hardwick, the Supreme Court failed to find a fundamental right to engage in homosexual sodomy. However, in Lawrence the Court found a Texas law outlawing homosexual sodomy was unconstitutional because "[t]he right to liberty under the Due Process Clause gives [homosexuals] the full right to engage in their conduct without the intervention of the government." While the message from Lawrence is clear - homosexual behavior cannot be made unlawful simply because some in the community may find it immoral - the standard of review when evaluating laws against homosexual behavior is still fuzzy at best.
DADT further complicated the assessment of laws against homosexual activities because it only applied to military members. Traditionally, the military is entitled to a great deal of deference, even though it is difficult to precisely measure the leniency of judicial review because it has varied throughout the years depending on the Court. A lenient application of constitutional standards in the military is claimed to be necessary to national security; the military requires obedience and discipline for lack of obedience. To ensure that these goals are met it may sometimes be necessary for a law that would be unconstitutional when applied to civilians to be permissible when applied to service members.
However, since Lawrence was decided, it has been argued that such a deferential judicial standard is no longer appropriate. The current argument is that even though the military should be afforded some deference, when a law seeks to regulate a person's liberty interest, it will be upheld when narrowly tailored to support only the most compelling interest. This begs the question: were the interests put forward by the government and DADT supporters enough to satisfy such a demanding test, and if so, couldn't we have found other ways to meet these interests without systematically discriminating against thousands of service members?
As a military spouse, I see that life in the military depends on order and keeping up the morale of the troops, so I understand why proponents of DADT claim order and morale as their compelling interests. I take issue with the argument that allowing homosexuals to be open about their sexual preferences will destroy order and morale and that DADT is the only way to uphold order and morale. Most courts continue to dance around these issues, always deferring to Congress or the military when it came to military matters, when they should have applied the heightened standard of review from Lawrence and let the chips fall where they may. I realize the point seems moot now that DADT has been repealed, but since there was never widespread recognition that DADT was unconstitutional it can be implemented again. Our current President rode into the White House with promises of repealing DADT; who's to say our next leader will not advocate for its return?
Even if the policy is never again implemented, there are many questions that have been left unanswered because the policy's constitutionality was never decided. For instance, what will the quality of life be like for homosexuals in the military who want to live openly? Straight military members, unless the duty assignment is unaccompanied, are free to take their spouses with them to their new duty station, and the military either provides housing on base or a basic housing allowance to live off of base. Since the federal government still does not recognize gay marriages and the military does not recognize relationship statuses below marriage, where does this leave gay service members with significant others? Sure, they can serve in the military while proclaiming their sexual orientation, but they will still face daily discrimination. Supporters of DADT will find other ways to relegate homosexuals in the military to a inferior status be it through restricted the housing of these service members or through the types of rates they can serve in. So while DADT has been repealed, I am left dissatisfied, as I am sure many others are as well. DADT's repeal is not enough because homosexuals will continue to face discrimination until the constitutionality of such discrimination is addressed by the courts. Once the issue of constitutionally is addressed it will no longer be necessary to fight for these service members' rights to live with whom they choose, be seen in public with their significant other, or even post a picture of their loved one above their bunk.
Thursday, January 06, 2011
Sarah Robison, University of Minnesota Law School '12, writes about the possible deleterious impact of the citizen-contractor loophole on asylum applicants...
While 8 C.F.R S. 208.6 surely protects many asylum applicants from potential harm, it nonetheless suffers from a critical flaw: disclosure of an asylum applicant's personal information may still be made to United States government officials and contractors, including local citizen-contractors in the applicant's country of origin. Such citizen-contractors are foreign nationals employed by the Service and Consular Sections of US Embassies abroad to investigate claims and authenticate foreign documents for purposes of preventing fraud. In the course of such work, citizen-contractors are privy not only to information that indicates that an alien is applying for asylum, but are also privy to confidential documents and information contained in the alien's asylum application. Unfortunately, no standardized procedure exists to thoroughly vet citizen-contractors' backgrounds and affiliations. Thus, the possibility exists that citizen-contractors have close ties to an applicant's persecutors or, in certain instances, may even be the persecutors themselves. Besides raising serious issues of client confidentiality, this flaw endangers the very individuals 8 C.F.R S. 208.6 is designed to protect.
A defensive asylum case I worked on as a law clerk illustrates the deleterious impact the citizen-contractor loophole in 8 C.F.R S. 208.6 may have on an asylum applicant's future safety. Our client applied for relief through political asylum based on persecution suffered at the hands of the local government and police force in her country of origin. In the course of investigating her claim, the Immigration Judge requested that a document used to establish our client's identity be sent to the Consular Section of the US Embassy in her country of origin to be authenticated. A citizen-contractor employed by the Consular Section undertook the task of authenticating our client's document. This citizen-contractor happened to be a former member of the police force in our client's country of origin, one of the very actors responsible for her persecution. To our knowledge, this citizen-contractor was not thoroughly vetted by the Consular Section prior to beginning employment, and his actions within the scope of his former employment as a police officer were unknown. Thus, we did not know whether the citizen-contractor was one of our client's former persecutors or whether he retained ties with individuals who were.
The uncertainty surrounding the citizen-contractor's background and affiliations proved harmful to our client on multiple levels. First, the citizen-contractor, an individual formerly employed by our client's persecutor, gained knowledge of our client's whereabouts, her application for asylum, and certain details regarding her claim. This knowledge put our client at potential risk of harm both in the United States and, were our client repatriated, in her country of origin. Second, given the citizen-contractor's possible conflict of interest, we were concerned with the accuracy of his determination regarding the authenticity of our client's document. For example, the citizen-contractor could have reported that our client's document was fraudulent, even if it were in fact authentic. This finding would have undermined our client's credibility, increased the chance that our client would be repatriated to her country of origin, and effectively delivered our client into the hands of her persecutors.
Though our client was granted asylum and fortunately incurred no harm as a result of the citizen-contractor's involvement in her case, others affected by the S. 208.6 loophole may not be as fortunate. An increasing body of case law, including Lin v. Department of Justice and Befekadu-Ashene v. Holder, illustrate the dangers that the citizen-contractor loophole of 8 C.F.R S. 208.6 poses to potential asylum applicants. Presently, the only remedy available to applicants harmed by the loophole is the opportunity to file a second asylum application or other form of relief based on the breach of confidentiality. However, this remedy fails to address the irreversible damage stemming from the potential disclosure of information to citizen-contractors in the applicant's country of origin. Until sufficient safeguards are adopted to mitigate the citizen-contractor loophole of 8 C.F.R. S. 208.6 and ensure the safety of asylum applicants, such as a standardized procedure for vetting citizen-contractors employed by the Service and Consular Sections of United States Embassies, those seeking shelter from persecution still remain at risk.
Wednesday, January 05, 2011
Joseph Schaeffer, Pitt Law '12, attended the Hot Shale Plays conference co-hosted by the Rocky Mountain Mineral Law Foundation and Energy and Mineral Law Foundation in Pittsburgh, Pennsylvania. He writes about the Pittsburgh City Council's ban on Marcellus Shale drilling...
In a letter to municipal officials, City Council President Darlene M. Harris urged a ban on hydro-fracturing natural gas drilling ("fracing") because the "Commonwealth's lax regulatory environment and preemptions of our local laws have placed the oil and gas industry's corporate interests above the rights of citizens." This is tough talk. In her letter, Harris accuses Pennsylvania's Department of Environmental Protection of catering to industry against the interests of Pennsylvania citizens. In passing the fracing ban on November 16, 2010, the Pittsburgh City Council appears to have agreed with her.
The Pittsburgh City Council's concern is interesting for several reasons. Allegheny County, where Pittsburgh is located, is one of the least developed parts of the Marcellus Shale basin. According to DEP data (current through November 2010), only two permits were issued in Allegheny County since January 2010, and only one of those sites has come online. In contrast, Bradford County in Northeastern Pennsylvania saw 758 permits issued during that same period, and 355 of those permitted wells have come online. The fact is that most Pittsburgh residents have likely never even seen a Marcellus pad, as the well sites are called. In the two years that I have lived in Pittsburgh, I have only ever seen one Marcellus pad, and it was on the outskirts of the city.
This lack of development is at least partly attributable to Pittsburgh's urban environment. Marcellus shale operations are land-intensive. A single pad sits on 3-5 acres, and operators must construct or improve roads to reach the site. While it is true that recent advances in drill technology have allowed operators to drill horizontally up to approx. 10,000 feet in length, the amount of land required for the well pad makes drilling within city limits difficult. In addition to physical constraints, well operators often see site selection in city limits restricted by zoning requirements.
If Allegheny County is home to so few Marcellus sites and urban development limits future development, why is Pittsburgh's City Council so concerned? Much can be attributed to the film "Gasland," a 2010 documentary by a Pennsylvania resident. "Gasland's" director, John Fox, travels across the country documenting hazardous environmental conditions supposedly attributable to hydraulic fracturing. He places particular emphasis on water quality issues that he suggests are attributable to natural gas leakage and the chemicals comprising part of the frac mix. In several particularly memorable scenes, Fox shows homeowners lighting their tap water on fire.
Since "Gasland's" release, Marcellus Shale operators have worked hard to stress their commitment to the environment. Range Resources, Pennsylvania's largest operator, operates a site for the public that emphasizes its commitment to safety. The Pennsylvania-based Marcellus Shale Coalition goes even further, linking to an article debunking "Gasland" on its front page. Industry frustration with "Gasland" is evident, with multiple speakers mentioning the film by name and arguing against its conclusions. A common refrain during the conference was that hydraulic fracturing has never been shown to have caused water quality issues. Industry representatives argued that the chemical mixtures used in the fracing process consist almost entirely of non-harmful materials. Furthermore, the water table lies at approximately 600 feet, and most fracing occurs at 6,000 feet, making contamination unlikely. When the speakers hypothesized causation, they most often cited faulty wells or water treatment systems, not hydraulic fracturing.
Science aside, Pittsburgh's hydraulic fracturing ban suggests that operators are losing the public relations battle. This is a shame. Marcellus Shale has huge potential as both an energy and revenue source. As of 2008, shale gas accounts for 10% of total US gas production, and this figure is estimated to rise to 25% of total US gas production by 2035. The Marcellus Shale deposit has the potential to be a particularly important source. The next three largest shale deposits - the Barnett, Fayetteville, and Haynesville plays - could fit within the Marcellus play with room to spare. Shale gas can meet a large portion of America's needs, and Pennsylvania, as a shale gas producer, can benefit from lower energy prices.
Marcellus Shale also has major financial benefits for the Pennsylvania citizens and government. Landowners in fee (or oil and gas rights holders) have received $1000-2000 per acre signing bonuses, in addition to royalties that Pennsylvania law sets at a 1/8 floor. Pennsylvanians also benefit as employees of Marcellus Shale operators. It is estimated that Marcellus Shale directly or indirectly employed 98,000 people and had a cumulative annual economic impact of USD 14 billion in 2010. By 2020, this is estimated to rise to 176,000 jobs and a USD 265 billion cumulative annual impact.
Marcellus Shale development has significant revenue potential for state and local governments, as well. It is estimated that by 2020, Marcellus Shale will contribute USD 15 billion in state and local tax revenue. For a city that was considering 10 percent across the board budget cuts as recently as September 2010, tax revenue from Shale development would be a welcome addition to city coffers. Granted, possible financial benefits should not lead municipal officials to ignore environmental concerns. Nevertheless, a blanket prohibition of hydraulic fracturing within Pittsburgh city limits seems excessive in light of the relative youth of hydraulic fracturing technology, the failure of opponents to prove adverse environmental effects, and the possible financial benefits resulting from shale operations. Hydraulic fracturing is a new technology; it was first used in the Barnett shale field in Texas in 1991. In the Marcellus field, drilling commenced in 2004, and the first horizontal well was drilled in 2006. Given the technology's youth, in addition to the relatively small number of Marcellus wells in Allegheny County, the Pittsburgh City Council's outright ban seems premature. If the Pittsburgh City Council had concerns about the environmental impacts of hydraulic fracturing, they should have imposed a moratorium similar to that imposed by the New York State legislature. This would have prevented drilling operations within city limits for a specified period of time, giving industry and environmentalists an opportunity to argue for or against the merits of hydraulic fracturing with the benefit of additional data and research. This is far more reasonable than an outright ban. A moratorium permits both sides to reargue the relative merits (or not) of hydraulic fracturing within city limits, whereas Pittsburgh's City Council has placed the burden of overturning the ban entirely on industry. Where hydraulic fracturing has yet to be directly linked to environmental problems, and particularly given the possible financial benefits of revenues from Marcellus Shale development, Pittsburgh City Council's ban seems shortsighted and excessive.
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