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The House of Representatives has passed their version of the "Big, Beautiful Bill" and parts of it are extraordinarily dangerous and must be stopped. As the Senate prepares to edit the BBB, discover the hidden dangers so that you can take action against the parts that threaten you the most. Please Support Congressional Dish – Quick Links Contribute monthly or a lump sum via Support Congressional Dish via (donations per episode) Send Zelle payments to: [email protected] Send Venmo payments to: @Jennifer-Briney Send Cash App payments to: $CongressionalDish or [email protected] Use your bank’s online bill pay function to mail contributions to: Please make checks payable to Congressional Dish Thank you for supporting truly independent media!
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The National Transportation Safety Board has released a preliminary report with previously unknown facts about the crash between a Black Hawk Army helicopter and CRJ passenger jet that killed 67 people on January 29, 2025. In this episode, listen to testimony about that report along with testimony from FAA and military officials about actions they have taken since the crash. Also included in this episode is a brief summary of what we know so far about the disturbing air traffic control outages that have occurred at airports in Newark and Denver. Please Support Congressional Dish – Quick Links Contribute monthly or a lump sum via Support Congressional Dish via (donations per episode) Send Zelle payments to: [email protected] Send Venmo payments to: @Jennifer-Briney Send Cash App payments to: $CongressionalDish or [email protected] Use your bank’s online bill pay function to mail contributions to: Please make checks payable to Congressional Dish Thank you for supporting truly independent media!
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Recent Supreme Court decisions have significantly altered the balance of power in the federal government, forcing Congress to rethink how it writes laws. In this episode, learn which decisions caused the shift, what the consequences are, how Congress is responding, and what options exist to push back against this new reality. Please Support Congressional Dish – Quick Links Contribute monthly or a lump sum via Support Congressional Dish via (donations per episode) Send Zelle payments to: [email protected] Send Venmo payments to: @Jennifer-Briney Send Cash App payments to: $CongressionalDish or [email protected] Use your bank’s online bill pay function to mail contributions to: Please make checks payable to Congressional Dish Thank you for supporting truly independent media!
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President Trump keeps saying the United States needs to "have Greenland," but why? In this episode, listen to testimony to Congress about the idea of the United States taking ownership of Greenland, which is not being laughed out of the room. Please Support Congressional Dish – Quick Links Contribute monthly or a lump sum via Support Congressional Dish via (donations per episode) Send Zelle payments to: [email protected] Send Venmo payments to: @Jennifer-Briney Send Cash App payments to: $CongressionalDish or [email protected] Use your bank’s online bill pay function to mail contributions to: Please make checks payable to Congressional Dish Thank you for supporting truly independent media!
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There is a lot of public anger towards nine Democratic Party Senators for helping Republicans pass a funding bill into law in mid-March. In this episode, we examine the details of the funding law in order to understand the deceptions that lead to that anger. Americans are being played.
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President Trump has been threatening to “take back” the Panama Canal since he regained power. In this episode, listen to testimony from officials serving on the Federal Maritime Commission who explain why the Panama Canal has become a focus of the administration and examine whether or not we need to be concerned about an impending war for control of the canal. Please Support Congressional Dish – Quick Links Contribute monthly or a lump sum via Support Congressional Dish via (donations per episode) Send Zelle payments to: Send Venmo payments to: @Jennifer-Briney Send Cash App payments to: $CongressionalDish or Use your bank’s online bill pay function to mail contributions to: Please make checks payable to Congressional Dish Thank you for supporting truly independent media! Background Sources Recommended Congressional Dish Episodes Current Events around the Panama Canal March 5, 2025. the Associated Press. Sabrina Valle, Suzanne McGee, and Michael Martina. March 4, 2025. Reuters. Matt Murphy, Jake Horton and Erwan Rivault. February 14, 2025. BBC. May 1, 2024. World Weather Attribution. World Maritime News Staff. March 15, 2019. World Maritime News. July 29, 2018. Reuters. Panama Canal Treaty of 1977 U.S. Department of State. The Chinese “Belt and Road Initiative” Michele Ruta. March 29, 2018. World Bank Group. The Trump-Gaza Video February 26, 2025. Sky News. Laws Audio Sources Senate Committee on Commerce, Science, and Transportation January 28, 2025 Witnesses: Louis E. Sola, Chairman, Federal Maritime Commission (FMC) Daniel B. Maffei, Commissioner, FMC , Professor, Scalia Law School, George Mason University Joseph Kramek, President & CEO, World Shipping Council Clips 17:30 Sen. Ted Cruz (R-TX): Between the American construction of the Panama Canal, the French effort to build an isthmus canal, and America's triumphant completion of that canal, the major infrastructure projects across Panama cost more than 35,000 lives. For the final decade of work on the Panama Canal, the United States spent nearly $400 million, equivalent to more than $15 billion today. The Panama Canal proved a truly invaluable asset, sparing both cargo ships and warships the long journey around South America. When President Carter gave it away to Panama, Americans were puzzled, confused, and many outraged. With the passage of time, many have lost sight of the canal's importance, both to national security and to the US economy. 18:45 Sen. Ted Cruz (R-TX): But the Panama Canal was not just given away. President Carter struck a bargain. He made a treaty. And President Trump is making a serious and substantive argument that that treaty is being violated right now. 19:10 Sen. Ted Cruz (R-TX): President Trump has highlighted two key issues. Number one, the danger of China exploiting or blocking passage through the canal, and number two, the exorbitant costs for transit. 19:20 Sen. Ted Cruz (R-TX): Chinese companies are right now building a bridge across the canal at a slow pace, so as to take nearly a decade. And Chinese companies control container points ports at either end. The partially completed bridge gives China the ability to block the canal without warning, and the ports give China ready observation posts to time that action. This situation, I believe, poses acute risks to US national security. 19:50 Sen. Ted Cruz (R-TX): Meanwhile, the high fees for canal transit disproportionately affect Americans, because US cargo accounts for nearly three quarters of Canal transits. US Navy vessels pay additional fees that apply only to warships. Canal profits regularly exceed $3 billion. This money comes from both American taxpayers and consumers in the form of higher costs for goods. American tourists aboard cruises, particularly those in the Caribbean Sea, are essentially captive to any fees Panama chooses to levy for canal transits, and they have paid unfair prices for fuel bunkering at terminals in Panama as a result of government granted monopoly. Panama's government relies on these exploitative fees. Nearly 1/10 of its budget is paid for with canal profit. 21:25 Sen. Ted Cruz (R-TX): Panama has for years flagged dozens of vessels in the Iranian ghost fleet, which brought Iran tens of billions of dollars in oil profits to fund terror across the world. 21:40 Sen. Ted Cruz (R-TX): And Chinese companies have won contracts, often without fair competition, as the infamous Belt and Road Initiative has come to Panama. China often engages in debt trap diplomacy to enable economic and political coercion. In Panama, it also seems to have exploited simple corruption. 32:40 Louis Sola: The Panama Canal is managed by the Panama Canal Authority, ACP, an independent agency of the Panamanian government. The ACP is a model of public infrastructure management, and its independence has been key to ensure a safe and reliable transit of vessels critical to the US and global commerce. 33:25 Louis Sola: In contrast, the broader maritime sector in Panama, including the nation's ports, water rights, and the world's largest ship registry, falls under the direct purview of the Panamanian government. 33:35 Louis Sola: Unfortunately, this sector has faced persistent challenges, including corruption scandals and foreign influence, particularly from Brazil and China. These issues create friction with the ACP, especially as it works to address long term challenges such as securing adequate water supplies for the canal. 33:55 Louis Sola: Although the ACP operates independently, under US law both the ACP and the government of Panama's maritime sector are considered one in the same. This means that any challenges in Panama's maritime sector, including corruption, lack of transparency, or foreign influence, can have a direct or indirect impact on the operations and long term stability of the canal. This legal perspective highlights the need for diligence in monitoring both the ACP's management and Panama government's policies affecting maritime operations. 34:30 Louis Sola: Since 2015, Chinese companies have increased their presence and influence throughout Panama. Panama became a member of the Belt and Road Initiative and ended its diplomatic relations with Taiwan. Chinese companies have been able to pursue billions of dollars in development contracts in Panama, many of which were projects directly on or adjacent to the Panama Canal. Many were no bid contracts. Labor laws were waived, and the Panamanian people are still waiting to see how they've been benefited. It is all more concerning that many of these companies are state-owned, and in some cases, even designated as linked to the People's Liberation Army. We must address the significant growing presence and influence of China throughout the Americas and in Panama, specifically. 35:20 Louis Sola: American companies should play a leading role in enhancing the canal's infrastructure. By supporting US firms, we reduce reliance on Chinese contractors and promote fair competition. 36:55 Daniel Maffei: Because the canal is essentially a waterway bridge over mountainous terrain above sea level, it does depend on large supplies of fresh water to maintain the full operations. Panama has among the world's largest annual rainfalls. Nonetheless, insufficient fresh water levels have occurred before in the canal's history, such as in the 1930s when the Madden Dam and Lake Alajuela were built to address water shortages. Since that time, the canal has undertaken several projects to accommodate larger, more modern ships. In the last couple of years, a trend of worsening droughts in the region, once again, has forced limits to the operations of the canal. Starting in June of 2023 the Panama Canal Authority employed draft restrictions and reduced the number of ships allowed to transit the canal per day. Now the Panama Canal limitations, in combination with the de facto closure of the Suez Canal to container traffic, has had serious consequences for ocean commerce, increasing rates, fees and transit times. 39:30 Daniel Maffei: Now, fortunately, Panama's 2024 rainy season has, for now, alleviated the most acute water supply issues at the canal, and normal transit volumes have been restored. That said, while the Panamanian government and Canal Authority have, with the advice of the US Army Corps of Engineers, developed credible plans to mitigate future water shortages, they also warned that it is likely that at least one more period of reduced transits will occur before these plans can be fully implemented. 41:55 Eugene Kontorovich: We shall see that under international law, each party to the treaty is entitled to determine for itself whether a violation has occurred. Now, in exchange for the United States ceding control of the canal which it built and maintained, Panama agreed to a special regime of neutrality. The essential features of this regime of neutrality is that the canal must be open to all nations for transit. That's Article Two. Equitable tolls and fees, Article Three. An exclusive Panamanian operation, Article Five. The prohibition of any foreign military presence, Article Five. Article Five provides that only Panama shall operate the canal. Testifying about the meaning of the treaty at the Senate ratification hearings, the Carter administration emphasized that this prohibits foreign operation of the canal, as well as the garrisoning of foreign troops. Now, Article Five appears to be primarily concerned about control by foreign sovereigns. If Panama signed a treaty with the People's Republic of China, whereby the latter would operate the canal on Panama's behalf, this would be a clear violation. But what if Panama contracted for port operations with a Chinese state firm, or even a private firm influenced or controlled in part by the Chinese government? The Suez Canal Company was itself, before being nationalized, a private firm in which the United Kingdom was only a controlling shareholder. Yet this was understood to represent British control over the canal. In other words, a company need not be owned by the government to be in part controlled by the government. So the real question is the degree of de jure or de facto control over a Foreign Sovereign company, and scenarios range from government companies in an authoritarian regime, completely controlled, to purely private firms in our open society like the United States, but there's many possible situations in the middle. The treaty is silent on the question of how much control is too much, and as we'll see, this is one of the many questions committed to the judgment and discretion of each party. Now turning to foreign security forces, the presence of third country troops would manifestly violate Article Five. But this does not mean that anything short of a People's Liberation Army base flying a red flag is permissible. The presence of foreign security forces could violate the regime of neutrality, even if they're not represented in organized and open military formations. Modern warfare has seen belligerent powers seek to evade international legal limitations by disguising their actions in civilian garb, from Russia's notorious little green men to Hamas terrorists hiding in hospitals or disguised as journalists. Bad actors seek to exploit the fact that international treaties focus on sovereign actors. Many of China's man made islands in the South China Sea began as civilian projects before being suddenly militarized. Indeed, this issue was discussed in the Senate ratification hearings over the treaty. Dean Rusk said informal forces would be prohibited under the treaty. Thus the ostensible civilian character of the Chinese presence around the canal does not, in itself, mean that it could not represent a violation of the treaty if, for example, these companies and their employees involved Chinese covert agents or other agents of the Chinese security forces. So this leads us to the final question, Who determines whether neutrality is being threatened or compromised? Unlike many other treaties that provide for third party dispute resolution, the neutrality treaty has no such provision. Instead, the treaty makes clear that each party determines for itself the existence of a violation. Article Four provides that each party is separately authorized to maintain the regime of neutrality, making a separate obligation of each party. The Senate's understanding accompanying to ratification also made clear that Article Five allows each party to take, quote, "unilateral action." Senator Jacob Javits, at the markup hearing, said that while the word unilateral is abrasive, we can quote, "decide that the regime of neutrality is being threatened and then act with whatever means are necessary to keep the canal neutral unilaterally." 46:35 Joseph Kramek: My name is Joe Kramek. I'm President and CEO of the World Shipping Council. The World Shipping Council is the global voice of liner shipping. Our membership consists of 90% of the world's liner shipping tonnage, which are container vessels and vehicle carriers. They operate on fixed schedules to provide our customers with regular service to ship their goods in ports throughout the world. 47:15 Joseph Kramek: As you have heard, using the Panama Canal to transit between the Atlantic and Pacific saves significant time and money. A typical voyage from Asia to the US or East Coast can be made in under 30 days using the canal, while the same journey can take up to 40 days if carriers must take alternate routes. From a commercial trade perspective, the big picture is this. One of the world's busiest trade lanes is the Trans Pacific. The Trans Pacific is cargo coming from and going to Asia via the United States. Focusing in a bit, cargo coming from Asia and bound for US Gulf and East Coast ports always transits the Panama Canal. Similarly, cargo being exported from US and East Coast ports, a large share of which are US Agricultural exports, like soybeans, corn, cotton, livestock and dairy also almost always transits the Panama Canal. The result is that 75% of Canal traffic originates in or is bound for the United States. 48:55 Joseph Kramek: We've talked about the drought in 2023 and the historic low water levels that it caused in Lake Gatún, which feeds the canal locks, a unique system that is a fresh water feed, as contrasted to an ocean to ocean system, which the French tried and failed, but which is actually active in the Suez Canal. These low water levels reduced transits from 36 transits a day to as low as 22 per day. Additionally, the low water levels required a reduction in maximum allowable draft levels, or the depth of the ship below the water line, which for our members reduced the amount of containers they could carry through the canal. This resulted in a 10% reduction in import volumes for US Gulf and East Coast ports, with the Port of Houston experiencing a 26.7% reduction. 51:10 Sen. Ted Cruz (R-TX): Are you aware of allegations from some vessel operators of disparate treatment such as sweetheart deals or favorable rebates by Panama for canal transits? Louis Sola: Thank you for the question, Mr. Chairman, we have become aware through some complaints by cruise lines that said that they were not getting a refund of their canal tolls. When we looked into this, we found a Panamanian Executive Order, Decree 73, that specifically says that if a cruise line would stop at a certain port, that they could be refunded 100% of the fees. And as far as I know, that's the only instant where that exists. 53:05 Sen. Ted Cruz (R-TX): So Panama was the very first Latin American country to join China's Belt and Road Initiative, and right now, China is building a fourth bridge across the Panama Canal for car traffic and light rail. Chairman Sola, why should Chinese construction of a bridge near Panama City concern the United States? Louis Sola: Mr. Chairman, we all saw the tragedy that happened here in the Francis Scott Key Bridge incident and the devastation that had happened to Baltimore. We also saw recently what happened in the Suez Canal, where we had a ship get stuck in there. It's not only the construction of the bridge, but it's a removal of a bridge, as I understand it, called the Bridge of the Americas. It was built in 1961 and that would paralyze cargo traffic in and out of the canals. 53:55 Sen. Ted Cruz (R-TX): Panama also recently renewed the concessions for two container ports to a Chinese company, Hutchison Ports PPC. Of course, Chinese companies are controlled by the Communist Party. How does China use control of those ports for economic gain? Louis Sola: Mr. Chairman, I am a regulator, a competition regulator. And the Chinese ports that you're referring to, let me put them into scope. The one on the Pacific, the Port of Balboa, is roughly the same size as the Port of Houston. They do about 4 million containers a year. They have about 28 game tree cranes. The one on the Atlantic is the same as my hometown in Miami, they do about 1 million containers. So where Roger Gunther in the Port of Houston generates about $1 billion a year and Heidi Webb in Miami does about $200 million, the Panama ports company paid 0 for 20 years on that concession. So it's really hard to compete against zero. So I think that's our concern, our economic concern, that we would have. Sen. Ted Cruz (R-TX): Commissioner Maffei, anything to add on that? Daniel Maffei: Yeah, I do too also think it is important. I would point out that you don't have to stop at either port. It's not like these two ports control the entrance to the canal. That is the Canal Authority that does control that. However, I think it's of concern. I would also point out that the Panamanian government thinks it's of concern too, because they're conducting their own audit of those particular deals, but we remain very interested as well. 56:25 Sen. Ted Cruz (R-TX): Would the facts discussed here be considered violations of the neutrality treaty in force right now between the United States and Panama? Eugene Kontorovich: So I think Senator, I think potentially they could, but it's impossible to say definitively without knowing more, in particular, about the degree of Chinese control and involvement in these companies. I think it's important to note that these port operation companies that operate the ports on both sides, when they received their first contract, it was just a few months before Hong Kong was handed over to China. In other words, they received them as British companies, sort of very oddly, just a few months before the handover. Now, of course, since then, Hong Kong has been incorporated into China, has been placed under a special national security regime, and the independence of those companies has been greatly abridged, to say nothing of state owned companies involved elsewhere in in the canal area, which raised significantly greater questions. Additionally, I should point out that the understandings between President Carter and Panamanian leader Herrera, which were attached to the treaty and form part of the treaty, provide that the United States can, quote, "defend the canal against any threat to the regime of neutrality," and I understand that as providing some degree of preemptive authority to intervene. One need not wait until the canal is actually closed by some act of sabotage or aggression, which, as we heard from the testimony, would be devastating to the United States, but there is some incipient ability to address potential violations. 58:10 Sen. Ted Cruz (R-TX): If the United States determines that Panama is in violation of the treaty, what is the range of remedies the United States would have for that treaty violation? Eugene Kontorovich: So I think it may be shocking to people to hear today, but when one goes over the ratification history and the debates and discussions in this body over this treaty, it was clear that the treaty was understood as giving both sides, separately, the right to resort to use armed force to enforce the provisions of the treaty. And it's not so surprising when one understands that the United States made an extraordinary concession to Panama by transferring this canal, which the United States built at great expense and maintained and operated to Panama, gratis. And in exchange, it received a kind of limitation, a permanent limitation on Panamanians sovereignty, that Panama agreed that the United States could enforce this regime of neutrality by force. Now, of course, armed force should never be the first recourse for any kind of international dispute and should not be arrived at sort of rationally or before negotiations and other kinds of good offices are exhausted, but it's quite clear that the treaty contemplates that as a remedy for violations. 1:03:20 Louis Sola: I believe that the security of the canal has always been understood to be provided by the United States. Panama does not have a military, and I always believed that there's been a close relationship with Southern Command that we would provide that. And it would be nice to see if we had a formalization of that in one way or another, because I don't believe that it's in the treaty at all. 1:05:05 Daniel Maffei: While we were down there, both of us heard, I think, several times, that the Panamanians would, the ones we talked to anyway, would welcome US companies coming in and doing a lot of this work. Frankly, their bids are not competitive with the Chinese bids. Frankly, they're not that existent because US companies can make more money doing things other places, but even if they were existent, it is difficult to put competitive bids when the Chinese bids are so heavily subsidized by China. 1:06:10 Sen. Ted Cruz (R-TX): What would China's incentive be to heavily subsidize those bids to undercut American companies and other companies? Daniel Maffei: Yeah, it's not a real short answer, but Senator, China's made no secret of its ambitious policies to gain influence of ports throughout the globe. It's invested in 129 ports in dozens of countries. It runs a majority of 17 ports, that does not include this Hong Kong company, right? So that's just directly Chinese-owned ports. So it has been a part of their Belt and Road strategy, whatever you want to call it, the Maritime Silk Road, for decades. So they believe that this influence, this investment in owning maritime ports is important to their economy. 1:07:05 Sen. Deb Fischer (R-NE): In 2021, Hutchison was awarded those two ports, Port Balboa and Port Cristobal, in a no-bid award process. Can you tell me, does the United States have any authority or recourse with the Panama Canal Authority under our current agreement with Panama to rebid those terminal concession contracts. And perhaps Mr. Kantorovich, that's more in your purview? Louis Sola: Senator, both of those ports were redone for 25 years, until 2047, I believe. And they have to pay $7 million is what the ongoing rate is for the Port of Houston- and the Port of Miami-sized concessions. Sen. Deb Fischer (R-NE): And it can't be rebid until after that date? Louis Sola: Well, I believe that that's what the comptroller's office is auditing both of those ports and that contract. That was done under the previous Panamanian administration. A new administration came in, and they called for an audit of that contract immediately. 1:20:10 Sen. Dan Sullivan (R-AK): Are the companies now controlling both sides of the Panama Canal, the Chinese companies, subject to the PRC national security laws that mandate cooperation with the military, with state intelligence agencies. Does anyone know that? Eugene Kontorovich: They're subject all the time. They're subject to those laws all the time by virtue of being Hong Kong companies. And you know, they face, of course, consequences for not complying with the wishes of the Chinese government. One of the arguments -- Sen. Dan Sullivan (R-AK): Wouldn't that be a violation of the treaty? And isn't that a huge risk to us right now that the Chinese -- Eugene Kontorovich: That is a threat to the neutrality -- Sen. Dan Sullivan (R-AK): If they invaded Taiwan, invaded the Philippines, they could go to these two companies saying, Hey, shut it down, make it hard, sink a ship in the canal. And wouldn't they be obligated to do that under Chinese law if they were ordered to by the PLA or the CCP? Eugene Kontorovich: I don't know if they'd be obligated, but certainly the People's Republic of China would have many tools of leverage and pressure on these companies. That's why the treaty specifically says that we can act not just to end actual obstructions to the canal. We don't have to wait until the canal is closed by hostile military action. Thatwould be a suicide pact, that would be catastrophic for us, but rather that we can respond at the inchoate, incipient level to threats, and then this is up to the president to determine whether this is significantly robust to constitute -- Sen. Dan Sullivan (R-AK): So aren't we kind of walking up to the idea of a suicide pact, because we've got two big Chinese companies on both ends of the Panama Canal, who, if there's a war in INDOPACOM, Taiwan that involves us and China, these companies would be obligated to do the bidding of the Chinese Communist Party and PLA? I mean, are we kind of walking up to a very significant national security threat already? Eugene Kontorovich: Yeah, certainly, there's a threat. And I think what makes the action of the Chinese government so difficult to respond to, but important to respond to, is that they conceal this in sort of levels of gray without direct control. Sen. Dan Sullivan (R-AK): Let me ask you on that topic, as my last question, Professor, let's assume that we find out. And again, it wouldn't be surprising. I think you can almost assume it that these two companies have Chinese spies or military officials within the ranks of the employees of the companies. Let's assume we found that out, somehow that becomes public. But I don't think it's a big assumption. It's probably true right now. So you have spies and military personnel within the ranks of these two companies that are controlling both ends of the Panama Canal for you, Professor, and Chairman Sola, wouldn't that be a blatant violation of Article Five of the neutrality treaty, if that were true, which probably is true? Eugene Kontorovich: Yeah, I do think it would be a clear violation. As former Secretary of State, Dean Ross said at the ratification hearings, informal forces can violate Article Five as well as formal forces. Sen. Dan Sullivan (R-AK): Is there any evidence of Chinese spies or other nefarious Chinese actors embedded in these companies? Louis Sola: Senator, we have no information of that. That's not under the purview of -- Sen. Dan Sullivan (R-AK): But you agree that would be a violation of Article Five of the neutrality treaty? Louis Sola: I do. 1:26:25 Daniel Maffei: Senator Sullivan was talking about Hutchison Ports. That's actually the same company that runs terminals on both ends of the canal. I am concerned about that. However, if we want to be concerned about that, all of us should lose a lot more sleep than we're losing because if there are spies there, then there might be spies at other Hutchinson ports, and there are other Hutchinson ports in almost every part of the world. They own the largest container port in the United Kingdom, Felix Dow, which is responsible for nearly half of Britain's container trade. They control major maritime terminals in Argentina, Australia, the Bahamas, Germany, Indonesia, Mexico, Myanmar, the Netherlands, South Korea and Tanzania. If owning and managing adjacent ports means that China somehow has operational control or strategic control over the Panama Canal, they also have it over the Suez, the Singapore Straits, the Mediterranean Sea and the English Channel. 1:35:45 Louis Sola: The fees that I think we are looking at, or have been looked at, the reason that we went there was because of the auctioning of the slots. And so what Panama did is they had a smaller percentage, maybe 20% allocation, and then they moved it up to 30% and 40% because it became a money maker for them. So as they were doing -- Sen. Marsha Blackburn (R-TN): Okay, let me interject here. The auctioning of the slots gives these the right to skip the queue? Louis Sola: Yes, ma'am. Sen. Marsha Blackburn (R-TN): Okay, so just for the record there. Continue. Louis Sola: So the auctioning of the slots. Under maritime law, it's first come first serve, but Panama has always put a certain percentage aside, and they started to put more and more. So we got a lot of complaints. We got a lot of complaints from LNG carriers that paid $4 million to go through, and we got a lot of complaints from agriculture that didn't have the money to pay to go through, because their goods were gonna go down. So if you look at the financial statements -- I'm a nerd, I look at financial statements of everybody -- the canal increased the amount of revenue that they had from about $500 million to $1.8 billion in the last three years just because of those fees. So this is what is very concerning to us. 1:39:20 Sen. Amy Klobuchar (D-MN): Do you know of any instances where the United States has been singled out or treated unfairly under the neutrality treaty in the operation of the canal? Daniel Maffei: I do not. I would add that one of the reasons why saying the US is disproportionately affected by raises in Canal fees and other kinds of fees at the canal is because the United States disproportionately utilizes the canal. 1:44:55 Louis Sola: We have a US port there, SSA, out of Washington State that I actually worked on the development of that many years ago, and helped develop that. That used to be a United States Navy submarine base, and we converted that. As far as the two ports that we have, they're completely different. One is a major infrastructure footprint, and also a container port that's moving 4 million containers a year. That's really phenomenal amount. That's more than Miami, Fort Lauderdale, and you've probably got to get Tampa and a little bit of Jacksonville in there to get that type of volume. And on the other side, we have a very small port, but it's a very strategic port on the Atlantic. So how are the operations done?I don't know how they don't make money. I mean, if you want to come right down to it, if they've been operating the port for 20 years, and they say that they haven't made any money, so they haven't been able to pay the government. That's what concerns me is I don't believe that we're on a level playing field with the American ports. 1:58:50 Eugene Kontorovich: I think the charges and fees are less of an issue because they don't discriminate across countries. We pay more because we use more, but it's not nationally discriminatory. 1:59:00 Eugene Kontorovich: The presence of Chinese companies, especially Chinese state companies, but not limited to them, do raise serious issues and concerns for the neutrality of the treaty. And I should point out, in relation to some of the earlier questioning, the canal, for purposes of the neutrality treaty, is not limited just to the actual locks of the canal and the transit of ships through the canal. According to Annex One, paragraph one of the treaty, it includes also the entrances of the canal and the territorial sea of Panama adjacent to it. So all of the activities we're talking about are within the neutrality regime, the geographic scope of the neutrality regime in the treaty. 2:00:30 Daniel Maffei: I actually have to admit, I'm a little confused as to why some of the senators asking these questions, Senator Blackburn, aren't more concerned about the biggest port in the United Kingdom being run by the Chinese. Petraeus in the port nearest Athens, one of the biggest ports in the Mediterranean, is not just run by a Chinese-linked company, it's run directly by a Chinese-owned company, and I was there. So you're on to something, but if you're just focusing on Panama, that's only part. 2:01:45 Louis Sola: About a year ago, when we were having this drought issue, there was also a lot of focus on Iran and how they were funding Hamas and the Houthis because they were attacking the Red Sea. What the United States has found is that Iranian vessels are sometimes flagged by Panama in order to avoid sanctions, so that they could sell the fuel that they have, and then they can take that money and then they can use it as they wish. Panama, at the time, had a very complicated process to de-flag the vessels. There was an investigation, there was an appeals process. By the time that OFAC or Treasury would go ahead and identify one of those vessels, by the time that they were doing the appeals and stuff like this, they've already changed flags to somewhere else. So when we went to Panama, we met with the Panamanian president, and I must say that we were very impressed, because he was 30 minutes late, but he was breaking relations with Venezuela at the time because the election was the day before. We explained to him the situation. The very next day, we met with the maritime minister, with US embassy personnel and Panama actually adjusted their appeals process so to make it more expedient, so if the United States or OFAC would come and say that this Iranian vessel is avoiding sanctions, now we have a process in place to go ahead and do that, and 53 vessels were de-flagged because of that. 2:06:05 Sen. John Curtis (R-UT): Is there any reason that China can't watch or do whatever they want from this bridge to get the intel from these containers? And does that concern anybody? Louis Sola: Well, it definitely concerns Southern Command, because they've brought it up on numerous occasions that there could be some sort of surveillance or something like that on the bridges. 2:20:30 Sen. Tim Sheehy (R-MT): We segregate ourselves artificially in a way that they do not. We segregate ourselves. Let's talk about military. Let's talk about intelligence. Let's talk about economics. They don't. China doesn't work that way. It's a whole of government approach. They don't draw a delineation between an economics discussion and a military one. And their attack may not look like Pearl Harbor. It may look like an everyday ship that decides, you know, it pulls into the locks and blows itself up. And now the locks are non-functional for our usage, and we can't support an inter ocean fleet transfer, and our ability to defend it, as you referred to Chairman, is now inhibited by the fact that we no longer have the military infrastructure around the canal that we did just as recently as 1999. 2:21:10 Sen. Tim Sheehy (R-MT): So from a commercial perspective, do the shipping companies have concerns over the security of the narrow waterways? We've the Strait to Malacca, we've got the Suez Canal, we've got Gibraltar, we've got Panama. Is that a concern that's thrown around in the boardrooms of the largest shipping corporations in the world? Joseph Kramek: Senator, I think it's something they think about every day. I mean, really, it's drawn into sharp relief with the Red Sea. It was what I call a pink flamingo. There's black swans that just come up and there's pink flamingos that you can see, but you don't act. But no one really thought a whole lot that one of the most important waterways in the world could be denied, and moreover, that it could be denied for such a sustained period. The good news is that -- Sen. Tim Sheehy (R-MT): And denied, I might add, by a disaffected non-state actor of Bedouins running around with rocket launchers, who also managed to beat us in a 20 year war in Afghanistan. My point to saying all this is we're just debating operational control of the canal, yet it seems very clear to all of us that a very simple act can debilitate the canal and eliminate our ability to use it in a matter of minutes with no warning, and we have no ability to intervene or stop that. To me, that means we do not have operational control of the canal. 2:30:40 Daniel Maffei: I will say that certainly we need to look at other kinds of ways to get US companies in positions where they can truly compete with the Chinese on some of these things. Blaming it all on Panama really misses the point. I've seen the same thing in Greece, where Greece didn't want to give the concession of its largest port to a Chinese company, but because of its financial difficulties, it was getting pressure from international organizations such the IMF, Europe and even maybe some of the United States to do so. So I just ask you to look at that. 2:31:20 Daniel Maffei: Panamanians are making far more on their canal than they ever have before. That's not necessarily a bad thing, as long as it's going to the right place. But where they're really making the money is on these auctions, and that is why it remains a concern of mine and I'm sure the chairman's. That is where we are looking at, potentially, using our authority under Section 19 of the Merchant Marine Act where we could, if we can show that it is a problem with the foreign trade of the US, it's interfering with foreign trade of the US, there are certain things that we can do. Senate Foreign Relations Committee January 15, 2024 Clips 4:01:40 Marco Rubio: The thing with Panama on the canal is not new. I visited there. It was 2016. I think I've consistently seen people express concern about it, and it's encapsulized here in quote after quote. Let me tell you the former US ambassador who served under President Obama said: "the Chinese see in Panama what we saw in Panama throughout the 20th century, a maritime and aviation logistics hub." The immediate past head of Southern Command, General Laura Richardson, said, "I was just in Panama about a month ago and flying along the Panama Canal and looking at the state owned enterprises from the People's Republic of China on each side of the Panama Canal. They look like civilian companies or state owned enterprises that could be used for dual use and could be quickly changed over to a military capability." We see questions that were asked by the ranking member in the house China Select Committee, where he asked a witness and they agreed that in a time of conflict, China could use its presence on both ends of the canal as a choke point against the United States in a conflict situation. So the concerns about Panama have been expressed by people on both sides of the aisle for at least the entire time that I've been in the United States Senate, and they've only accelerated further. And this is a very legitimate issue that we face there. I'm not prepared to answer this question because I haven't looked at the legal research behind it yet, but I'm compelled to suspect that an argument could be made that the terms under which that canal were turned over have been violated. Because while technically, sovereignty over the canal has not been turned over to a foreign power, in reality, a foreign power today possesses, through their companies, which we know are not independent, the ability to turn the canal into a choke point in a moment of conflict. And that is a direct threat to the national interest and security the United States, and is particularly galling given the fact that we paid for it and that 5,000 Americans died making it. That said, Panama is a great partner on a lot of other issues, and I hope we can resolve this issue of the canal and of its security, and also continue to work with them cooperatively on a host of issues we share in common, including what to do with migration. 4:38:35 Sen. Mike Lee (R-UT): Now, President Trump has recently talked a little bit about the fact that there are some questions arising about the status of the Panama Canal. When we look to the treaty at issue, the treaty concerning the permanent neutrality and operation of the Panama Canal, we're reminded that some things maybe aren't quite as they should be there right now. Given that the Chinese now control major ports at the entry and the exit to the canal, it seems appropriate to say that there's at least an open question. There's some doubt as to whether the canal remains neutral. Would you agree with that assessment? Marco Rubio: Yes. Here's the challenge. Number one, I want to be clear about something. The Panamanian government, particularly its current office holders, are very friendly to the United States and very cooperative, and we want that to continue, and I want to bifurcate that from the broader issue of the canal. Now I am not, President Trump is not inventing this. This is something that's existed now for at least a decade. In my service here, I took a trip to Panama in 2017. When on that trip to Panama in 2017 it was the central issue we discussed about the canal, and that is that Chinese companies control port facilities at both ends of the canal, the east and the west, and the concerns among military officials and security officials, including in Panama, at that point, that that could one day be used as a choke point to impede commerce in a moment of conflict. Going back to that I -- earlier before you got here, and I don't want to have to dig through this folder to find it again, but -- basically cited how the immediate past head of Southern Command, just retired general Richardson, said she flew over the canal, looked down and saw those Chinese port facilities, and said Those look like dual use facilities that in a moment of conflict, could be weaponized against us. The bipartisan China commission over in the House last year, had testimony and hearings on this issue, and members of both parties expressed concern. The former ambassador to Panama under President Obama has expressed those concerns. This is a legitimate issue that needs to be confronted. The second point is the one you touched upon, and that is, look, could an argument be made, and I'm not prepared to answer it yet, because it's something we're going to have to study very carefully. But I think I have an inkling of I know where this is going to head. Can an argument be made that the Chinese basically have effective control of the canal anytime they want? Because if they order a Chinese company that controls the ports to shut it down or impede our transit, they will have to do so. There are no independent Chinese companies. They all exist because they've been identified as national champions. They're supported by the Chinese government. And if you don't do what they want, they find a new CEO, and you end up being replaced and removed. So they're under the complete control of their government. This is a legitimate question, and one that Senators Risch had some insight as well. He mentioned that in passing that needs to be looked at. This is not a joke. The Panama Canal issue is a very serious one. 4:44:30 Marco Rubio: In 2016 and 2017 that was well understood that part of the investments they made in Panama were conditioned upon Panama's ability to convince the Dominican Republic and other countries to flip their recognition away from Taiwan. That happened. Jen Briney’s Recent Guest Appearances Travis Makes Money: Give and Take: Music by Editing Production Assistance
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The Laken Riley Act is a new law that legalizes the indefinite imprisonment and deportation of possibly innocent legal immigrants. In this episode, we examine the law to see how it legalizes such injustices and we look at the profit motive behind expanding our prison population. Please Support Congressional Dish – Quick Links Contribute monthly or a lump sum via Support Congressional Dish via (donations per episode) Send Zelle payments to: [email protected] Send Venmo payments to: @Jennifer-Briney Send Cash App payments to: $CongressionalDish or [email protected] Use your bank’s online bill pay function to mail contributions to: Please make checks payable to Congressional Dish Thank you for supporting truly independent media!
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67 people died this week in a mid-air collision between a military helicopter and a passenger plane in Washington DC. The investigation into this crash is still in its infancy but Congress was warned just a few weeks ago that there are many dangers lurking in our air traffic system, dangers that Congress recently made worse at Reagan Washington National Airport, where the crash took place. Please Support Congressional Dish – Quick Links Contribute monthly or a lump sum via Support Congressional Dish via (donations per episode) Send Zelle payments to: [email protected] Send Venmo payments to: @Jennifer-Briney Send Cash App payments to: $CongressionalDish or [email protected] Use your bank’s online bill pay function to mail contributions to: Please make checks payable to Congressional Dish Thank you for supporting truly independent media! Contact Your Members of Congress: (202) 224-312
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President Donald Trump is back in power despite his illegal attempt to remain President after losing the 2020 election. In this episode, hear expert testimony about the Supreme Court decision that stemmed from the now-defunct Federal prosecution of Donald Trump which granted the President legal immunity for many actions. What does it mean going forward? What can and can’t he do? Please Support Congressional Dish – Quick Links Contribute monthly or a lump sum via Support Congressional Dish via (donations per episode) Send Zelle payments to: [email protected] Send Venmo payments to: @Jennifer-Briney Send Cash App payments to: $CongressionalDish or [email protected] Use your bank’s online bill pay function to mail contributions to: Please make checks payable to Congressional Dish Thank you for supporting truly independent media!
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The 118th Congress came to an unexpectedly — though not necessarily surprisingly — chaotic end. In this episode, hear about all the drama that averted a government shutdown, learn what became law, and examine what could have become law if it weren’t for Elon Musk. Please Support Congressional Dish – Quick Links Contribute monthly or a lump sum via Support Congressional Dish via (donations per episode) Send Zelle payments to: [email protected] Send Venmo payments to: @Jennifer-Briney Send Cash App payments to: $CongressionalDish or [email protected] Use your bank’s online bill pay function to mail contributions to: Please make checks payable to Congressional Dish Thank you for supporting truly independent media!
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U.S. military whistleblowers have told Congress about secret programs related to non-human piloted aircraft and submersibles. In this episode, listen to testimony from additional whistleblowers who add more information to what we have already learned, listen to the response from the person at the Defense Department in charge of investigating these claims, and learn about a secret program called Immaculate Constellation, which allegedly has a hidden treasure trove of evidence that we are not alone. Please Support Congressional Dish – Quick Links Contribute monthly or a lump sum via Support Congressional Dish via (donations per episode) Send Zelle payments to: [email protected] Send Venmo payments to: @Jennifer-Briney Send Cash App payments to: $CongressionalDish or [email protected] Use your bank’s online bill pay function to mail contributions to: Please make checks payable to Congressional Dish Thank you for supporting truly independent media!
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Immediately after we published the Freaky Food episode, the Commissioner of the Food and Drug Administration testified to the Senate and provided valuable insights into why our food supply is concerning for all the reasons exposed in episode 305. In this episode, listen to testimony from two hearings with FDA officials as we finish this series looking into the hidden dangers inside our food. Please Support Congressional Dish – Quick Links Contribute monthly or a lump sum via Support Congressional Dish via (donations per episode) Send Zelle payments to: [email protected] Send Venmo payments to: @Jennifer-Briney Send Cash App payments to: $CongressionalDish or [email protected] Use your bank’s online bill pay function to mail contributions to: Please make checks payable to Congressional Dish Thank you for supporting truly independent media!
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There are dangers lurking in our food that affect your health and the health of our entire society, and you should know about them. In this episode, get the highlights from two recent Congressional events featuring expert testimony about the regulation of our food supply, as well as testimony from the man who is soon likely to be the most powerful person in our national health care system. Please Support Congressional Dish – Quick Links Contribute monthly or a lump sum via Support Congressional Dish via (donations per episode) Send Zelle payments to: [email protected] Send Venmo payments to: @Jennifer-Briney Send Cash App payments to: $CongressionalDish or [email protected] Use your bank’s online bill pay function to mail contributions to: Please make checks payable to Congressional Dish Thank you for supporting truly independent media!
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After a brief analysis of what we currently know about the 119th Congress, we process the return of President Trump. Please Support Congressional Dish – Quick Links Contribute monthly or a lump sum via Support Congressional Dish via (donations per episode) Send Zelle payments to: [email protected] Send Venmo payments to: @Jennifer-Briney Send Cash App payments to: $CongressionalDish or [email protected] Use your bank’s online bill pay function to mail contributions to: Please make checks payable to Congressional Dish Thank you for supporting truly independent media! Background Sources Reconciliation Rebecca Goldman. September 1, 2022. League of Women Voters. Richard Kogan and David Reich. May 6, 2022. Center on Budget and Policy Priorities. Lisa Desjardins. April 7, 2021. PBS News. House Race Results The New York Times. 2020 vs. 2024 Presidential Results The New York Times. The New York Times. Audio Sources November 5, 2024 justinryoung on Twitch November 7, 2024 We’re Not Wrong Music by Editing Production Assistance
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During the RNC and DNC, Jen interviewed nine members of Congress about Congress itself. What is it like to work there? Do they think Congress is dysfunctional? If so, how do they think it could be fixed? In this episode, listen to the most interesting responses from all of the interviews. Please Support Congressional Dish – Quick Links Contribute monthly or a lump sum via Support Congressional Dish via (donations per episode) Send Zelle payments to: [email protected] Send Venmo payments to: @Jennifer-Briney Send Cash App payments to: $CongressionalDish or [email protected] Use your bank’s online bill pay function to mail contributions to: Please make checks payable to Congressional Dish Thank you for supporting truly independent media! Background Sources David Daley. October 4, 2024. The Guardian. OpenSecrets. OpenSecrets. Accessed October 30, 2024. Congressional Research Service. Accessed October 30, 2024. Congressional Research Service. Music by Editing Production Assistance
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This election has featured a lot of talk about ‘immigration’ and ‘the border’ but has been short on specifics. In this episode, you’ll get those specifics. Specifically, you’ll learn what was in H.R. 2, a Republican bill passed by the House, and you’ll learn what was in the so-called bipartisan border bill which was killed by Donald Trump’s loyalists in the Senate and which Kamala Harris has promised to revive as President. Which bill would actually solve the problems? Please Support Congressional Dish – Quick Links Contribute monthly or a lump sum via Support Congressional Dish via (donations per episode) Send Zelle payments to: [email protected] Send Venmo payments to: @Jennifer-Briney Send Cash App payments to: $CongressionalDish or [email protected] Use your bank’s online bill pay function to mail contributions to: Please make checks payable to Congressional Dish Thank you for supporting truly independent media! Background Sources Recommended Congressional Dish Episodes Current Immigration Process Visas Accessed October 22, 2024. U.S. Department of State, Bureau of Consular Affairs. Accessed October 22, 2024. Boundless. Accessed October 22, 2024. Boundless. October 22, 2024. USAGov. September 3, 2024. U.S. Department of State, Bureau of Consular Affairs. Asylum August 1, 2024. USAFacts. Ted Hesson and Mica Rosenberg. June 5, 2024. Reuters. Accessed October 22, 2024. Migration Policy Institute. Unauthorized Immigration John Gramlich. October 1, 2024. Pew Research Center. Jeffrey S. Passel and Jens Manuel Krogstad. July 22, 2024. Pew Research Center. Backlog December 18, 2023. TRAC Immigration. Immigrant Detention Eunice Cho. August 7, 2023. American Civil Liberties Union. Irwin County Detention Center November 15, 2022. Senate Committee on Homeland Security and Governmental Affairs, Permanent Subcommittee on Investigations. Jonathan Raymond. November 15, 2022. 11 ALIVE. May 20, 2021. WABE. Molly O’Toole. May 20, 2021. The LA Times. C. Carlos Carreiro Immigration Detention Center in Bristol County, MA Ben Berke. May 21, 2021. The Public’s Radio. December 15, 2020. Office of the Massachusetts Attorney General Civil Rights Division. Etowah County Detention Center in Gadsden, Alabama Erin Wise. April 15, 2022. ABC 33 40 News. Ted Hesson and Mica Rosenberg. March 25, 2022. Reuters. March 25, 2022. BirminghamWatch. March 25, 2022. U.S. Immigration and Customs Enforcement. Paul Moses. June 8, 2018. The Daily Beast. Glades County Detention Center in Moore Haven, Florida February 2, 2022. Freedom for Immigrants. Debbie Wasserman Schultz et al. February 1, 2022. South Texas Family Residential Center Accessed October 22, 2024. OpenSecrets. Sandra Sanchez. Updated June 24, 2024. Border Report. Ted Hesson. June 10, 2024. Reuters. Penalties for Illegally Entering Countries World Population Review. Bipartisan Border Bill Failure Ariana Figueroa. May 24, 2024. Missouri Independent. Catherine Rampell. May 23, 2024. The Washington Post. Mary Clare Jalonick and Stephen Groves. February 7, 2024. AP News. Mary Clare Jalonick and Stephen Groves. February 7, 2024. AP News. The Bills H.R. 2 Outline Division A - Border Wall Would require the Secretary of Homeland Security to resume “all activities” related to constructing a border wall between the US and Mexico that were planned by the Trump administration. Wall would have to be at least 900 miles long, and include not only a physical wall, but also surveillance towers, radars, seismic acoustic detection sensors, and 24 hour drone monitoring. Would require killing all carrizo cane and salt cedar plants along the Rio Grande River by releasing non-stinging wasps imported from Spain and France into the area. Would waive “all legal requirements” that would stand in the way of of building the wall. Division B - Immigration Enforcement and Foreign Affairs Would make it illegal to process asylum claims of individuals who: do not enter at official ports of entry. crossed through another country on their way to the US and did not apply to live there and receive an official denial in each country they entered before entering the US. have been convicted of misdemeanor offenses, allowing the Secretary of Homeland Security or Attorney General to add disqualifying acts without approval from Congress and no court reviews allowed. Would allow the Secretary of Homeland Security to take away the authorization for an individual who has been accepted into the US through the asylum process to work legally in the US. Work permits would only be authorized for 6 months at a time. Would reopen detention centers that were closed by the Biden Administration. Title V - Protection of Children Would require the DHS Secretary to return unaccompanied children back to their home countries if they are not trafficking victims and do not have a fear of Return. Would authorize immigration officers to withdraw a child’s application to be admitted into the United States regardless of the child’s ability or desire to do so. Would require the DHS to collect information - name, social security number, DOB, address, contact info, and immigration status - of people who will be taking custody of immigrant children. Within 30 days of receiving that information, if they determine that individual is not legally in the United States, must initiate removal proceedings. Would change the law so that these people have “access” to lawyers instead of having lawyers to represent them. Title VI - Visa Overstay Penalties Would Increase fines for illegally entering the United States from $50-250 to $500-1000 Would create new penalties for overstaying visas: First offense: fines up to $1,000 or up to 6 months in prison, or both Repeat offenses: fines up to $2,000 or up to 2 years in prison, or both S.4361 Outline Division A - Border Security & Combatting Fentanyl Supplemental Appropriations $6.3 billion to border patrol. $6 billion to Immigration and Customs Enforcement. ~$2.4 billion for deportations. ~$1.6 billion for prisons (the goal in the bill is for ICE to be able to detain 46,500 humans at all times). ~$1.2 billion for services to help people navigate the immigration and asylum system, and to help people leave the country if denied visas (). ~$415 million to hire more ICE agents (goal is to hire 800 more agents). ~$200 million for counter fentanyl investigations. ~$4 billion to US Citizenship and Immigration Services with most going towards hiring more staff. ~ $1.2 billion to the State Department $850 million for “humanitarian needs in the Western Hemisphere” to reduce migration (with the idea being that if their home countries are less dangerous, then people won’t want to come here as often) $230 million to pay other countries to accept deported individuals. $440 million, most of which would be spent on Immigration Judge Teams which include lawyers, court administrators, staff, and court costs. Would expand the number of border patrol and ICE officers authorized to issue a notice to appear, reducing the workload of the judges. Would allow protection determination proceedings to take place in any federally owned or leased building that is not property owned, leased or managed by ICE or border patrol and is “a reasonable distance” from the migrants current residence, expanding the locations where the cases can be heard beyond the already too crowded court buildings. Division B - Border Act Title I - Capacity Building For five years: would give the Secretary of Homeland Security the authority to appoint people to positions within the Refugee, Asylum, and International Operation Directorate, the Field Operations Directorate, and the Service Center Operations Directorate of US Citizenship and Immigration Services if the Secretary determines that a critical hiring need exists. would give the Secretary of Homeland Security the authority to appoint ICE deportation officers if the Secretary determines that a critical hiring need exists. Would provide a permanent authority for the DHS Secretary to re-hire a former employee to any position in ICE, Border Patrol, or US Citizenship & Immigration Services. Would give asylum officers a 15% pay raise. Would require annual training for border patrol officers about the law, de- escalation techniques, and migrant and agent safety measures. Title III - Securing America For three years, the Secretary of Homeland Security would be given the authority “in the Secretary’s sole and unreviewable discretion” to declare a “border emergency” and remove any migrant who doesn’t have pre-determined permission to enter the United States or doesn’t present themselves at a port of entry in accordance with a process approved by the DHS Secretary. Title IV - Promoting Legal Immigration Would set up a special process to more easily admit no more than 10,000 refugees who worked with the United States from Afghanistan. Would allow the spouse, fiancé, or child of an admitted migrant to join them in the United States and receive employment authorizations. Would slightly increase the number of visas for family members that would be issued in years 2025 through 2029 (512,000 instead of 480,000 = ~ 6% increase). Audio Sources August 22, 2024 29:45 Vice President Kamala Harris: And let me be clear. After decades in law enforcement, I know the importance of safety and security, especially at our border. Last year, Joe and I brought together Democrats and conservative Republicans to write the strongest border bill in decades. The Border Patrol endorsed it. But Donald Trump believes a border deal would hurt his campaign. So he ordered his allies in Congress to kill the deal. Well, I refuse to play politics with our security. Here is my pledge to you: As President, I will bring back the bipartisan border security bill that he killed. And I will sign it into law. July 18, 2024 April 18, 2018 Senate Judiciary Committee, Subcommittee on Border Security and Immigration Witness: James McHenry, Director, Executive Office for Immigration Review, U.S. Department of Justice Clips 2:42 Sen. John Cornyn (R-TX): Earlier administrations, both Republican and Democrat, have struggled with how to reduce the case backlogs in the immigration courts. And, unfortunately, Congress has never provided the full extent of immigration judges and support staff truly needed to eliminate the backlogs. As a result, backlogs continue to grow, from 129,000 cases in fiscal 1998 to a staggering 684,000 as of February 2018. 3:27 Sen. John Cornyn (R-TX): Aliens in removal proceedings sometimes wait for years before they ever appear before an immigration judge. For example, as of February 2018 courts in Colorado have the longest time for cases sitting on their docket more than 1,000 days -- almost three years. In my home state of Texas, the current wait is 884 days -- almost two and a half years. 28:45 James McHenry: A typical immigration court proceeding has two stages, or two parts. The first is the determination of removability. The Department of Homeland Security brings charges and allegations that an alien has violated the immigration laws. The judge, the immigration judge, first has to determine whether that charge is sustained, and that will be based on the factual allegations that are brought, so the judge will make determinations on that. If there is a finding that the alien is removable, then the case proceeds to a second phase. If the judge finds the alien is not removable, then the case is terminated. At the second phase, the immigration judge gives the alien an opportunity to apply for any protection or relief from removal that he or she may be eligible for under the Immigration and Nationality Act. This will involve the setting of a separate hearing at which the respondent may present evidence, they may present witnesses, they have the right to cross-examine witnesses brought by the department, and they will bring up whatever factual bases there is for their claim of relief or protection. At the end of that hearing, the immigration judge will assess the evidence, will assess the testimony, will look at the law, and will render a decision. The judge may either grant the application, in which case the respondent will get to remain in the United States. The judge may deny the application but give the respondent an opportunity to voluntarily depart at their own expense and sometimes after paying a bond, or the immigration judge may order the alien removed. 41:50 Senator Mike Lee (R-UT): I believe you recently testified in front of the House Judiciary Committee that it would take about 700 immigration judges in order to be able to address the backlog and address the current case load. Is that correct? James McHenry: Yeah, last fall the president proposed adding additional immigration judges, up to a number of 700. If we can get 700 on board, especially with our performance measures, we could complete over 450,000 cases a year. That would eviscerate the backlog. Sen. Mike Lee (R-UT): So, 700 would do it…. End of Episode Announcements Andrew Heaton’s New Book: Music by Editing Production Assistance
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We’re making it easy for you to judge the job performances of your members of Congress! In this episode, Jen tells you about a list of single issue votes that were taken in the House and Senate during the 118th Congress. Most importantly, we gave you all the information you need to find your members’ voting records in this episode’s show notes. You can find your 2024 Congressional Election Study guide in the episode 301 show notes on www.congressionaldish.com. Happy voting! Please Support Congressional Dish – Quick Links Contribute monthly or a lump sum via Support Congressional Dish via (donations per episode) Send Zelle payments to: [email protected] Send Venmo payments to: @Jennifer-Briney Send Cash App payments to: $CongressionalDish or [email protected] Use your bank’s online bill pay function to mail contributions to: Please make checks payable to Congressional Dish Thank you for supporting truly independent media! Enacted Laws Congressional Dish Episode: ← find how your Representative voted here ← find how your Senator voted here Effects of H.R. 7888: Expands the number of people allowed to be legally spied on by the U.S. government and the number of people with information stored in the FISA database (which has information about Americans whose data has been collected along with information about foreigners). It does so by… Giving the Department of Justice (DOJ) permission to search the FISA database to vet foreigners who are applying for tourist visas to visit the United States and Expanding the definition of ‘foreign intelligence’ to include counter narcotics targets. Expands the number of companies who get legal immunity for turning our information over to the government by expanding the definition of “electronic communications service provider”. The Federal Bureau of Investigation (FBI) is no longer legally allowed to search the FISA database solely to find evidence of a crime. The Federal Bureau of Investigation (FBI) is prohibited from using uncorroborated information from political groups or anonymous sources in press reports to get FISA warrants. Limits the number of people within the government who are allowed to search through the database. Background Sources for H.R. 7888: INTEL.gov. Michael Horowitz. April 27, 2023. U.S. Department of Justice, Office of the Inspector General. Jonathan Turley. December 14, 2019. The Hill. Conor Clarke. February 2014. Stanford Law Review. “The Biggs Amendment” to H.R. 7888 [failed] ← find how your Representative voted here Intended Effect of the Biggs Amendment: Would require U.S. government officials to get a warrant before searching through the FISA database for information about U.S. citizens or companies, with emergency exceptions. Congressional Dish Episode: ← find how your Representative voted here Effects of H.R. 7521: It is now illegal for companies to provide internet hosting services, distribute, and/or update “foreign adversary controlled applications”, websites, or games, which are partially owned by a foreign person and are determined by the President - with no proof required - to pose “a significant threat to the national security of the United States.” Establishes a process that allows companies to host, distribute, and/or update if the app, website, or game changes ownership. If companies host, distribute, and/or update the targeted apps, websites, or games, the companies are subject to fines that - depending on the user base of the targeted app, website, or game - can be hundreds of billions of dollars. ← find how your Representative voted here Intended Effects of H.R. 8034: Provide almost $26 billion to Israel. 64% of the money would be for war expenses 35% of the money would be for humanitarian purposes Less than 1% of the money would be for diplomatic expenses Provide $400 million for FEMA Background Sources for H.R. 8034: April 17, 2024. Al Jazeera. Fatima Al-Kassab. January 26, 2024. NPR. ← find how your Representative voted here Intended Effects of H.R. 8035: Provide over $60 billion for Ukraine (and other neighboring countries) 83% of the money would be for war expenses 16.5% of the money would be for humanitarian expenses Less than 0.5% of the money would be for diplomatic expenses Provide $341 million for production of nuclear weapons materials and nuclear nonproliferation programs House Bills ← find how your Representative voted here Intended Effects of H.R. 7023: Double the length of permits to discharge pollutants in waterways from 5 years to 10 years Removes the EPA administrators ability to prohibit discharges in specific disposal sites if he determines that the discharge of materials will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas, wildlife, or recreational areas after a disposal permit has been issued. Creates nationwide permits to allow for transmission projects for people, water, wastewater, carbon dioxide, fuel, and oil and gas pipelines that do not result in a “loss greater than 1/2 acre of waters of the United States for each single and complete project” In reissuing these nationwide permits, the EPA would not be required to consult with a state nor any other Federal agency and these permits will get to short cut environmental assessments that are required by the National Environmental Policy Act. Limits judicial review Puts a 60 day time limit after the permit is issued for a judicial review Doesn’t allow anyone who didn’t file a comment during the public comment period to file a lawsuit. If someone did file a comment, they may not file a lawsuit about anything that they didn’t address in their comment. Prohibits the court from vacating, revoking, or limiting the permit unless the court finds that the activities authorized “present an imminent and substantial danger to human health or the environment for which there is not other equitable remedy available under the law’ Approves an end-of-Trump administration EPA approval for Florida to administer Clean Water Act permitting. Background Sources for H.R. 7023: Becky Bohrer and Patrick Whittle. January 31, 2023. PBS News. July 19, 2016. Earthjustice. Earthjustice. ← find how your Representative voted here Intended Effects of H.R. 1435: Prohibit states from banning fossil fuel burning internal combustion engines in cars and trucks. Effectively revokes the EPA waiver that allows California to ban the sale of fossil fuel burning cars. Background Sources for H.R. 1435: Jeff St. John. September 23, 2020. Greentech Media. ← find how your Representative voted here Intended effects of H.R. 7176: Give the Federal Energy Regulatory Commission the “exclusive authority” to approve or deny applications to export natural gas from the United States to a foreign country, which eliminates requirements for Department of Energy approval and provisions to address free trade agreements. Deems exportation or importation of natural gas to be in the public interest. Background Sources for H.R. 7176: September 26, 2024. National Drought Mitigation Center. Zachary-Taylor Wright. September 17, 2024. MySA. Steven Santana. July 23, 2024. MySA. ← find how your Representative voted here Intended Effects of H.R. 6543: Requires providers of short term lodging (hotels and AirBnBs) and Internet platforms that advertise and sell short term lodging to display the total price including all mandatory fees, except for government taxes and fees. ← find how your Representative voted here Intended Effects of H.R. 3950: Requires ticket issuers and secondary market ticket issuers to clearly display the total ticket price, including all fees, at the time the ticket price is first displayed and provides an itemized list of charges before the ticket purchasing process is complete. Prohibits ticket issuers and secondary market ticket issuers from selling tickets that they do not physically possess at the time of sale. Prohibits secondary ticket issuers from using the word ‘official’ or similar words implying a partnership in their marketing and search engine wording unless they have the consent of the venue, team, or artist. Requires ticket issuers to provide a refund or a similar ticket to a rescheduled event, with the approval of the customer, if an event is canceled or postponed (except for in case of a natural disaster or other event beyond the ticket issuer’s control). ← find how your Representative voted here Intended Effects of H.R. 4639: Prohibits law enforcement or the intelligence community from buying customer or subscriber information directly from companies or from data brokers. Any information “illegitimately obtained” is not allowed to be used against us in court. Has exceptions for FISA surveillance of foreigners. Limits immunity for companies that comply with surveillance orders and do not stop the surveillance when a court order is denied. Background Sources for H.R. 4639: Carly Page. July 18, 2022. TechCrunch. Senior Advisory Group Panel on Commercially Available Information. January 27, 2022. Office of the Director of National Intelligence. Byron Tau. June 19, 2020. The Wall Street Journal. Senate Bills ← find how your Senator voted here Intended Effects of S. 316: Repeal the authorizations for US military operations in Iraq that were passed in 1991 and 2002. Background Sources for S. 316: Meghann Myers. January 25, 2024. Military Times. ← find how your Senator voted here Intended Effects of S. 4072: To prevent the enforcement of the , which would set stricter standards for fossil fuel burning cars and trucks that would be phased in between model year 2027 and 2032. Prohibits enforcement of any similar rule that could be written in the future. The standards could be met via the production of cleaner fossil fuel powered vehicles, hybrids, plug-in hybrids, and electric vehicles. EPA estimates the air pollution reductions would provide ~$13 billion in reduced annual health care costs by preventing the emission of thousands of tons of particulate matter, nitrogen oxides, and volatile organic compounds. EPA estimates the new standards would save Americans $46 billion per year in fuel costs and $16 billion per year due to reduced maintenance and repair costs for drivers, totaling ~$6,000 over the course of a new vehicle’s lifetime. ← find how your Senator voted here Intended Effects of S. 4445: Guarantees an individual’s rights to receive fertility treatment, make decisions regarding the donation, use, storage, and disposal of oocytes, sperm, fertilized eggs and embryos, and enter contracts with health care providers to enact those decisions. Guarantees a health provider’s right to provide fertility treatments and provide for testing, use, storage, shipping, and disposal of genetic material including oocytes, sperm, fertilized eggs, and embryos. Guarantees a health insurance provider’s right to cover fertility treatments. Guarantees a manufacturer’s right to manufacture, import, market, sell, and distribute drugs and devices that are used for fertility treatments. Allows lawsuits against any State or individual who interferes with the right to fertility treatments by the Attorney General, health care providers, and individuals adversely affected. This would supersede any State law regardless of when it was enacted and prohibits enforcement of any state law that is in conflict with these rights. Requires the Department of Defense to provide fertility treatments (specifically three egg retrievals and unlimited embryo transfers) to active duty military members and their spouses. Requires health plans, Medicaid, and Medicare that cover obstetrical (child birth related) services to also provide coverage for fertility treatments. Background sources for S. 4445: Maya C. Miller. September 17, 2024. The New York Times. Alander Rocha. April 3, 2024. Alabama Reflector. Alander Rocha. February 19, 2024. Alabama Reflector. Audio Sources March 21, 2024 Clips Rep. Rick Larsen (D-WA): My colleagues have criticized EPA’s use of its Clean Water Act review or veto authority. Yet, the record shows EPA’s use of this authority has been consistent with congressional intent. I see no reason for removing this authority. Since enactment of the Clean Water Act in 1972, EPA has only exercised this authority 14 times—most recently in relation to large-scale mining proposals in Alaska and West Virginia. EPA’s use of this authority has, in fact, been bipartisan. EPA used it 2 times during Democratic administrations and 12 times during Republican administrations. Rep. Eric Burlison (R-MO): This bill will cut red tape, strengthen the permitting process in favor of those seeking the permits, provide clarity to the EPA to ensure that they are following what the law intends, and, most importantly, fight back against the militant climate agenda. Rep. Eric Burlison (R-MO): Our court system is already being attacked from every angle. Let’s not let the environmentalists continue to manipulate the courts to push their climate religion. It should be an efficient and speedy process so businesses can build the infrastructure that our country depends on. Rep. David Rouser (R-NC): Mr. Chairman, in closing, I encourage my colleagues on both sides of the aisle to support this bill, which provides energy predictability and certainty that our utilities, energy, manufacturing, and agricultural industries need to succeed, which are so critical to American greatness in energy, food production, and the manufacturing necessary to improve the standard of living of every American. That is what this is about, Mr. Chairman. Music by Editing Production Assistance
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You do not have the right to repair your own belongings because of intellectual property rights granted to corporations by Congress in 1998. In this episode, listen to the debate happening in Congress about if and how they should grant customers the right to repair and get a status update on the multiple efforts under way in the current Congress, including one with a good chance of becoming law. Please Support Congressional Dish – Quick Links Contribute monthly or a lump sum via Support Congressional Dish via (donations per episode) Send Zelle payments to: [email protected] Send Venmo payments to: @Jennifer-Briney Send Cash App payments to: $CongressionalDish or [email protected] Use your bank’s online bill pay function to mail contributions to: Please make checks payable to Congressional Dish Thank you for supporting truly independent media! Background Sources Recommended Congressional Dish Episodes McDonald’s Ice Cream Machines Andy Greenberg. December 14, 2023. Wired. Joseph Fawbush. March 29, 2022. FindLaw. John Deere Luke Hogg. January 8, 2024. Reason. Internet of Things Updates and Maintenance Márk Szabó. August 27, 2024. WeLiveSecurity. Massachusetts Auto Repair Law Massachusetts Office of the Attorney General. DoD’s Revolving Door OpenSecrets. OpenSecrets. Karl Evers-Hillstrom and Reid Champlin. June 18, 2019. OpenSecrets. OpenSecrets. Salary.com. Military Right to Repair Issues Kyle Mizokami. February 11, 2020. Popular Mechanics. Max Finkel. February 8, 2020. Jalopnik. Elle Ekman. November 20, 2019. The New York Times. Lucas Kunce and Elle Ekman. September 15, 2019. Technological Protection Measures (TPMs) Jennifer Zerkee. November 8, 2023. Simon Fraser University. Cyber Risks Sam Curry et al. January 3, 2023. samcurry.net. Apple Lawsuit Brandon Vigliarolo. December 18, 2023. The Register. NDAA Sec. 828 Jason Koebler. August 28, 2024. 404 Media. AdvaMed et al. July 30, 2024. DocumentCloud via 404 Media. Laws Bills Sec. 828 : REQUIREMENT FOR CONTRACTORS TO PROVIDE REASONABLE ACCESS TO REPAIR MATERIALS. Fair Repair Act Audio Sources May 16, 2024 Senate Armed Services Committee Witnesses: Carlos Del Toro, Secretary of the Navy Clip Sen. Elizabeth Warren: So the Navy acquires everything from night vision goggles to aircraft carriers through contracts with big defense contractors, but the contractors often place restrictions on these deals that prevent service members from maintaining or repairing the equipment, or even let them write a training manual without going back through the contractor. Now the contractors say that since they own the intellectual property and the technical data underlying the equipment, only they have the right to repair that equipment. These right to repair restrictions usually translate into much higher costs for DOD, which has no choice but to shovel money out to big contractors whenever DOD needs to have something fixed. So take the Navy's littoral combat ship, General Dynamics and Lockheed Martin considered much of the data and equipment on the ship to be proprietary, so the Navy had to delay missions and spend millions of dollars on travel costs, just so that contractor affiliated repairmen could fly in, rather than doing this ourselves. Secretary Del Toro, when a sailor isn't allowed to repair part of their ship at sea, and a marine isn't allowed to access technical data to fix a generator on a base abroad. One solution is for the Navy to buy the intellectual property from the contractors. So can you say a little bit about what the benefits are of the Navy having technical rights for the equipment that it has purchased. Sec. Carlos Del Toro: The benefits are enormous, Senator, and we've actually had tremendous success, I'd say, in the last year and a half to two years, through the taxpayer advocacy program that we initiated when I came in. There have been three examples, one, gaining the intellectual property rights for the new ACV class of ships that will replace the AAVs. The F-35 negotiations really proved themselves out in a significant way as well, too. And lastly, the 20 F-18s that the Congress authorized in ‘22 and ‘23, we were able to make significant gains in terms of the government finally getting the intellectual property rights that were necessary for us to be able to properly sustain those moving forward. Sen. Elizabeth Warren: So I am very, very glad to hear this. I like the taxpayer advocacy project and how you're training contract officers to secure technical equipment that the Navy buys, but I think you should have the support of Congress on this. Senator Braun and I have introduced the Stop price gouging the military act to give DoD more tools to get cost and pricing data so that you will be in a better position to negotiate better deals with contractors. There's also more that we can do to ensure that the Navy and the rest of the services have the rights they need to bolster readiness. So let me ask you, Secretary Del Toro, would having a stronger focus on right to repair issues during the acquisition process, like prioritizing contract bids that give DoD fair access to repair materials, and ensuring that contract officers are looking into buying technical rights early on, would that help the Navy save costs and boost readiness at the same time? Sec. Carlos Del Toro: Very much. Senator, in fact, one of the things that we have prioritized since I came in as Secretary of the Navy, given my acquisition background, is actually those negotiations need to happen as early as possible before that we even as we develop the acquisition strategy for that contract to go out to bid, and by doing so, we will reap tremendous returns. July 18, 2023 House Judiciary Committee Witnesses: Aaron Perzanowski, Thomas W. Lacchia Professor of Law, University of Michigan Law School , Legal Fellow, Hudson Institute’s Forum for Intellectual Property Kyle Wiens, Co-founder and CEO, iFixit Paul Roberts, Founder, SecuRepairs.org; Founder and Editor-in-Chief, the Security Ledger Scott Benavidez, Chairman, Automotive Service Association; Owner, Mr. B’s Paint & Body Shop Clips 41:25 Scott Benavidez: My name is Scott Benavidez. I'm the Chairman of the Automotive Service Association's Board of Directors. I am also a second generation shop owner from Albuquerque, New Mexico, Mr. B's Paint and Body Shop. Scott Benavidez: We do have concerns when some insurers insist on repairs that are simply cheaper and quicker, without regard to quality and safety. Repairers understand better than anyone the threat of replacement crash parts or lesser quality. We can and should have a competitive marketplace that doesn't compromise quality or safety, deciding to only cover the cheapest option without understanding implications for quality leaves collision shops and their customers in a tough position. Very few consumers have the knowledge about these types of crash parts used on their vehicles as numerous crash parts in the marketplace, such as OEM (original equipment manufactured) parts, certified aftermarket parts, aftermarket parts, reconditioned crash parts, and recycled crash parts. Repairers can make recommendations, but their customers are unlikely to hear if the insurance won't cover them. 46:45 Paul Roberts: My name is Paul Roberts, and I'm the founder of Secure Repairs. We're an organization of more than 350 cyber security and information technology professionals who support the right to repair. 46:55 Paul Roberts: I'm speaking to you today on behalf of our members to make clear that the fair access to repair materials sought by right to repair laws does not increase cyber risk, and in fact, it can contribute to a healthier and more secure ecosystem of smart and connected devices. Paul Roberts: Proposed right to repair legislation considered by this Congress, such as the Repair Act, or last session, the Fair Repair Act, simply asks manufacturers that already provide repair information and tools to their authorized repair providers to also provide them at a fair and reasonable price to the owners of the devices and to third parties that they may wish to hire to do their work. 47:35 Paul Roberts: By definition, the information covered by right to repair laws is not sensitive or protected, as evidenced by the fact that the manufacturers already distribute it widely to hundreds, thousands, or even tens of thousands of workers for their authorized repair providers. This could be everyone from mechanics working at auto dealerships to the folks staffing the Geek Squad at Best Buy. 48:00 Paul Roberts: Also, we have yet to find any evidence that the types of information covered by right to repair laws like schematic diagrams, service manuals, diagnostic software and replacement parts act as a portal to cyber attacks. The vast majority of attacks on internet connected devices - from broadband routers to home appliances to automobiles - today exploit weaknesses in the embedded software produced and distributed by the manufacturers, or alternatively, weak device configurations so they're deployed on the internet in ways that make them vulnerable to attack. These security weaknesses are an epidemic. A recent study of the security of Internet of Things devices, by the company Phosphorus Labs, or a cybersecurity company, found that 68% of Internet of Things devices contained high risk or critical software vulnerabilities. As an example, I'd like to call attention to the work of a group of independent researchers recently led by Sam Curry, who published a report, and you can Google this, "Web Hackers vs. the Auto Industry" in January 2023. That group disclosed wide ranging and exploitable flaws in vehicle telematics systems from 16 different auto manufacturers. At a leading GPS supplier to major automakers, the researchers claimed to obtain full access to a company-wide administration panel that gave them the ability to send arbitrary commands to an estimated 15.5 million vehicles, including vehicles used by first responders, police, fire and so on. Hacks like this take place without any access to repair materials, nor is there any evidence that providing access to repair software will open the doors to new attacks. 50:05 Paul Roberts: For the last 25 years, Section 1201 of the Digital Millennium Copyright Act has given manufacturers an incentive to deploy software locks widely and to limit access to security researchers. That's kind of a model what we call in cybersecurity, security through obscurity. In other words, by keeping the workings of something secret, you're making it secure. But in fact, that doesn't work, because cyber criminals are very resourceful and they're very determined, and they don't really care what the law says. 50:35 Paul Roberts: Section 1201 has also enabled what one researcher has described as dark patterns in the design and manufacture of hardware that includes everything from locking out customers from access to administrative interfaces, administrative features of the products that they own, as well as practices like part pairing, which Kyle will talk to you more about, in which manufacturers couple replaceable components like screens and sensors and cameras to specific device hardware. Such schemes make manufacturers and their authorized repair providers gatekeepers for repairs, and effectively bar competition from the owners of the devices as well as independent repair providers. 54:45 Kyle Wiens: You think about what is local? What is American? Main Street you have a post office and a repair shop. And unfortunately, we've seen the whittling down of Main Street as the TV repair shops went away when the manufacturers cut off access to schematics, as the camera repair shops went away when Nikon and Canon decided to stop selling them parts. We've seen this systematically across the economy. In the enterprise space, you have Oracle and IBM saying that you can't get security updates to critical cyber infrastructure unless you buy a service contract with them, so they're tying long term service contracts with the security updates that are necessary to keep this infrastructure secure. 56:45 Kyle Wiens: Over the last decade plus, I've been working on Section 1201, trying to get exemptions for the ability to repair products. The challenge that we've had in the section 1201 process every triennial I go back and we ask for permission to be able to fix our own things is that the exemptions we've gotten really only apply to individual consumers. They aren't something that I could use to make a tool to provide to one of you to fix yourself. So in order for someone to take advantage of a 1201 exemption that we have, they have to be a cybersecurity researcher and able to whittle their own tools and use it themselves, and that just doesn't scale. 57:45 Devlin Hartline: My name is Devlin Hartline, and I'm a legal fellow at the Hudson Institute's forum for intellectual property. 57:50 Devlin Hartline: I'd like to start with a question posed by the title of this hearing, is there a right to repair? And the answer is clearly no. A right is a legally enforceable claim against another, but the courts have not recognized that manufacturers have the duty to help consumers make repairs. Instead, the courts have said that while we have the ability to repair our things, we also have the duty not to infringe the IP rights in the process. So it is in fact, the manufacturers who have the relevant rights, not consumers. 58:30 Devlin Hartline: Right to repair supporters want lawmakers to force manufacturers to make the tools, parts, and know-how needed to facilitate repairs available to consumers and independent repair shops. And the assumption here is that anything standing in the way of repair opportunities must necessarily harm the public good, but these tools, parts and know-how, are often protected by IP rights such as copyrights and design patents. And we protect copyrighted works and patented inventions because, as the Constitution recognizes, this promotes the public good. We reward creators and innovators as an incentive for them to bring these things to the marketplace and the public benefits from the introduction of new products and services that increase competition. Thus, the right to repair movement isn't based on a pre-existing right. It's instead asking lawmakers to create a new right at the expense of the existing rights of IP owners. 1:00:45 Devlin Hartline: IP owners are merely exercising their federally protected IP rights, and this is not actionable anti-competitive conduct. It is instead how the IP system is supposed to work. We grant IP owners exclusive rights so they can exclude others, and this, in turn, promotes the investments to create and to commercialize these creative innovations in the marketplace, and that promotes the public good. Aaron Perzanowski: My name is Aaron Perzanowski. I am a professor of law at the University of Michigan, and for the last 15 years, my academic research has focused on the intersection of personal and intellectual property rights in the digital economy. During that time, the right to repair has emerged as a central challenge to the notion that we as consumers control the devices that we buy. Instead consumers, farmers, small businesses, all find that manufacturers exert post-sale control over these devices, often in ways that frustrate repair. Aaron Perzanowski: Repair is as old as humanity. Our Paleolithic ancestors repaired hand axes and other primitive tools, and as our technologies have grown more complex, from the Bronze Age through the Renaissance, to the high tech devices that we all have in our pockets here today, repair has always kept pace. But today, manufacturers are employing a range of strategies that restrict repair, from their hardware and software design choices to clamp downs on secondary markets, and we also troublingly see attempts to leverage IP rights as tools to restrict repair. These efforts are a major departure from the historical treatment of repair under the law, the right to repair is not only consistent with nearly two centuries of IP law in the United States, it reflects half a millennium of common law property doctrine that rejects post-sale restrictions on personal property as early as the 15th century. English property law recognized that once a property owner sells an item, efforts to restrain how the new owner of that item can use it are inconsistent with the essential nature of private property and obnoxious to public policy. As the Supreme Court has repeatedly recognized, IP laws' respect for the property interests of purchasers of copyrighted and patented goods was profoundly shaped by this common law tradition. In 1850, the Supreme Court recognized that the repair of a patented machine reflected "no more than the exercise of that right of care, which everyone may use to give duration to that which he owns." A century later, the Court held that the repair of a convertible car roof was justified as an exercise of "the lawful right of the property owner to repair his property." And just a few years ago, the court reaffirmed the rejection of post-sale restrictions under patent law in Impression Products vs. Lexmark, a case about refurbishing printer ink cartridges. Copyright law, not surprisingly, has had fewer occasions to consider repair restrictions. But as early as 1901, the Seventh Circuit recognized "a right of repair or renewal under US copyright law." When a publisher sued to prevent a used book dealer from repairing and replacing damaged components of books, the court said that "the right of ownership in the book carries with it and includes the right to maintain the book as nearly as possible in its original condition." A century after that, Congress itself acknowledged repair as a right that owners enjoy, regardless of copyright restrictions, when it enacted section 117 C of the Copyright Act. That provision was designed to undo a Ninth Circuit decision that allowed copyright holders to prevent third party repairs of computers. Section 117 C explicitly permits owners of machines to make copies of computer programs in the course of maintenance or repair. And finally, the US Copyright Office over the last decade has repeatedly concluded that diagnosis, repair, and maintenance activities are non-infringing when it comes to vehicles, consumer devices, and medical equipment. So the right to repair is firmly rooted in basic principles of US IP law. Aaron Perzanowski: Section 1201 of the DMCA makes it practically impossible for consumers to exercise their lawful right to repair a wide range of devices, from tractors to home electronics, even though the copyright office says those activities are not infringing, and the weakening of standards for design patents allow firms to choke off the supply of replacement parts needed to repair vehicles, home appliances, and other devices. Aaron Perzanowski: One way to think about a right is as an affirmative power to force someone else to engage in some behavior, and in some cases, that is what we're talking about. We're talking about imposing, especially on the state level, regulations that impose requirements on manufacturers. I think that's true of the Repair Act on the federal level as well. But, I think part of what we also need to keep in mind is that sometimes what you need to effectuate a right is to eliminate barriers that stand in the way of that right. So we can think about this, I think, helpfully in the context of tools that enable people to engage in repair. The state level solution has been to require manufacturers to give their own tools to repair shops, sometimes compensated under fair and reasonable terms. The other solution would be to change section 1201 to say, let's allow independent repair shops to make their own tools. I think both of those solutions have some value to them. I also think it's really important to keep in mind that when we're talking about IP rights, there are always multiple sets of interests at stake, and one of the key balances that IP law has always tried to strike is the balance between the limited statutory exclusive rights that the Patent and Copyright Acts create and the personal property rights of consumers who own these devices. And so I think a balancing is absolutely necessary and appropriate. 1:15:20 Aaron Perzanowski: I think the best solution for Section 1201 is embodied in a piece of legislation that Representatives Jones and Spartz introduced in the last Congress, which would create a permanent exception to Section 1201 for repair that would apply not only to the act of circumvention, but would also apply to the creation and distribution of tools that are useful for repair purposes that does not open the door to broad, unrestrained, creation of circumvention tools, but tools that are that are targeted to the repair market. 1:16:40 Devlin Hartline: He cited a case about where you can repair a cover on a book. That's very different than recreating the book, every single word in it, right? So there's a difference between repairing something and then crossing the line into violating the exclusive rights of IP owners in the patented product or the copyrighted book. And so the things that repair supporters are asking for is that, if somebody has a design patent that covers an auto body part, well, they have the right to exclude other people from making that part, but repair supporters say they shouldn't have that exclusive right, because, you know, we could increase competition if we just took away their design patent and now other people could make that part, and so that's competition. But that's not the type of competition that IP law and competition law seek to support. That's like saying, if we just let the Pirate Bay copy and distribute all of the Disney blockbuster movies, then that's competition, and prices would go down. But that's not the way that we do it, right? So competition means other people come up with new products and new services, and so that's what we should be trying to support. 1:26:45 Rep. Jerrold Nadler (D-NY): Repair advocates argue that section 1201, prevents non-infringing circumvention of access controls for purposes. But Congress contemplated this use when it passed the DMCA in 1998, allowing for a triennial exemption process. Is the exemption process working as intended? And if not, are there actions Congress can take to expand exemptions or make them easier to acquire? Devlin Hartline: What's important about the triennial rulemaking is that the proponent of an exemption has to come forward with evidence and demonstrate that there's actually a problem and it relates to a certain class of works, and then they can get a temporary exemption for three years. And so it is true that the Librarian of Congress, the last few rulemakings, has said that because using a copyrighted work in a way for repair, maintenance, etc, is Fair Use that they grant these exemptions. But these exemptions are quite narrow. They do not allow the trafficking of the computer programs that can crack the TPMs. And so it's very narrowly done. And the concern is that if you were to create a permanent exemption that opens things all the way up with access controls, copy controls and trafficking thereof, is now you're getting to the point of why we even have these TPMs under 1201 in the first place, and that's because they guard against piracy. And so the concern is that you're opening the piracy floodgates. You make these devices less secure, and then content owners are going to be less likely to want to put their content on these devices. Rep. Ben Cline (R-VA): How does section 1201 of the DMCA impact the ability of consumers and independent repair shops to modify or repair devices that have proprietary software and data in the consumer electronics industry? Aaron Perzanowski: Thank you so much for the question. As we've been talking about the copyright office in 2015, 2018, 2021, and they're in the process for the current rulemaking, has determined that engaging in circumvention, the removal or bypassing of these digital locks for purposes of repair, is perfectly lawful behavior, but there is a major practical mismatch here between the legal rights that consumers enjoy under federal law today and their practical ability to exercise those rights. And that's because, as Devlin was just describing, the section 1201 rulemaking does not extend to the creation or distribution of tools, right? So I have the right under federal law, to remove the technological lock, say, on my video game console, if I want to swap out a broken disk drive. How do I do that? I'd like to think of myself as a pretty technologically sophisticated person. I don't have the first clue about how to do that. I need a person who can write that code, make that code available to consumers so that I can. All I'm trying to do is swap out a broken disk drive on my video game. But you would argue that code is proprietary, correct? So I'm talking here about a third party making their own code that is simply allowing me to engage in activity that the Copyright Office has repeatedly said is non-infringing. Rep. Ben Cline (R-VA): So you want to give them a map. Is that, essentially, what you're saying? Aaron Perzanowski: Absolutely, yes, I do. Rep. Ben Cline (R-VA): Do trade secrets play a role in the right to repair debate? Aaron Perzanowski: There are occasions where trade secrets are important. I don't think in the context that we're talking about here with section 1201, that we're typically running into trade secret issues. The state-level bills that have been introduced do typically address trade secrets and often have carve outs there. And I think that's something worth considering in this debate. But I think it's important to keep in mind that just because we have some hypothetical worry about some unknown bad actor taking a tool that I use to fix my video game console -- Rep. Ben Cline (R-VA): It's not unknown. The Chinese do it all the time. Aaron Perzanowski: I don't think the Chinese are particularly worried about whether or not I can fix my video game console, and in fact, I think that point is important, but the bad actors already have these tools. All we're trying to do is get very targeted tools in the hands of law abiding citizens who just want to repair the stuff they buy for their kids for Christmas, right? If the Chinese are going to hack the PlayStation, they've already done it. 1:32:25 Aaron Perzanowski: So the 1201 process is what established the legality of circumvention for repair purposes. But when Congress created that rulemaking authority, it only extends to the act of circumvention, the actual removal. Congress did not give the [Copyright] Office or the Librarian [of Congress] the authority to grant exemptions to the trafficking provisions, and that's where I think legislative intervention is really important. 1:39:00 Kyle Wiens: One of the challenges was section 1201. It doesn't just ban repair tools, it also bans the distribution of cybersecurity tools. And so we've seen security researchers....Apple sued a company that made a security research tool under 1201 and that tool has markedly made the world more secure. It's very popular amongst government security researchers. So I think that's kind of the sweet spot is, allow some third party inspection. It'll make the product better. 1:41:25 Kyle Wiens: These ice cream machines are made by Taylor, and there is an incredibly complex, baroque set of touchscreens you have to go through. And then there's a service password you have to be able to get past in order to access the settings that really allow you to do what you want. And so, in an ideal world, you'd have an entrepreneur who would come along and make a tool to make it easier for McDonald's, maybe they could have an app on their phone that they could use to configure and help them diagnose and repair the machine. Unfortunately, the company who made that tool is struggling legally because of all these challenges across the board. If we had innovation outside of the manufacturers and to be able to develop new tools for fixing ice cream machines or anything else, you have a whole flowering ecosystem of repair tools right now. It doesn't exist. The US is like this black hole where innovation is banned in software repair. There's all kinds of opportunities I could see, I had a farmer ask me for help fixing his John Deere tractor, and I had to say, I can't do that particular repair because it's illegal. I'd love to build a cool app for helping him diagnose and fix his tractor and get back back in the field faster. We don't have that marketplace right now. It's like farmers have been forced to, like, use cracked Ukrainian versions of John Deere diagnostic software, right? Rep. Russell Fry (R-SC): So it's not just ice cream machines. I led off with that, but it's farmers, it's farm equipment, it's iPhones, it's somebody's Xbox, right? I mean, these are all things.... in your experience, what are the challenges that these customers and stakeholders face when they're trying to repair their own devices? What are some things that they face? Kyle Wiens: It's absolutely infuriating. So my friend, farmer in San Luis Obispo, Dave grows all kinds of amazing products. He has a $300,000 John Deere tractor, came to me and said, Hey, there's a bad sensor. It's going to take a week to get that sensor sent out from Indiana, and I need to use the tractor in that time. Will you help me bypass the sensor? I could hypothetically modify the software in the tractor to do that. Practically, I didn't have the legal ability, and so he had to go and rent an expensive tractor for the week. This is impacting people's lives every single day. 1:43:50 Rep. Russell Fry (R-SC): So, to pivot a little bit, what role do you see from a federal side, from legislation, and what specific measures do you think might be included in such legislation? Kyle Wiens: So we've seen the solutions being approached from two angles. At the state level, you have states saying John Deere and other manufacturers, if you have a dealership that has fancy tools, sell those tools to consumers and to independent shops, allow that competition. At the federal level, what we can do is enable a competitive marketplace for those tools. So rather than compelling John Deere to sell the tool, we can say, hey, it's legal for someone, an entrepreneur, to make a competing tool. And you have this in the car market. You can take your car down the AutoZone, you can buy a scan tool, plug it into your car, and it'll decode some of the error messages. Those tools exist on the auto market because we have a standard diagnostic interface on cars that you can access without circumventing a TPM. We don't have that for any other products. So another farmer in my town, he showed me how if he has a transmission go out on a truck, he can fix that. But if he has a transmission go out on his John Deere tractor, he can't. He can physically install the transmission, but he can't program it to make it work. I'd love to be able to make a software tool to enable him to replace his transmission. Aaron Perzanowski: So I think if we see passage of the SMART Act, we can anticipate significant reductions in the expenses associated with auto collision repairs. Estimates are that design patents on collision parts are responsible for about $1.5 billion in additional expenditures. We see price premiums on OEM parts over third party parts often reaching into like the 40% range, right? So these are pretty significant cost savings associated with that. Part of this problem, I think, does relate back to the kind of unique structure of this market. Most consumers are not paying out of pocket for collision repairs. Those costs are being covered by their auto insurance provider, and so the consumer doesn't see that the - I'm pulling this from memory, so don't hold me to this figure - but the side view mirror of a Ford Fiesta costing $1,500, that's not something that the consumer is confronted with, right? So this goes back to the question of notice. Do consumers know when they buy that vehicle that the repairs are going to be that expensive? I think in most cases, they don't. And so I think the SMART Act is a very targeted solution to this problem. I do think it's important to note that the design patent issue for replacement parts is not limited to the automotive industry. I think it's the most, I think that's the area where the problem is most pressing. But home appliances, consumer electronics, we see companies getting design patents on replacement water filters for refrigerators so that they can charge three times as much when the little light comes on on your fridge to tell you that your water might not be as clean as you want it to be. So I think we have to think about that problem across a range of industries, but the automotive industry, I think, is absolutely the right place to start. Paul Roberts: I mean, one point I would just make is that with the Internet of Things, right, we are facing a crisis in the very near future as manufacturers of everything from home appliances to personal electronics to equipment, as those products age and those manufacturers walk away from their responsibility to maintain them. So we're no longer supporting the software. We're no longer issuing security updates. Who will step in to maintain those devices? Keep them secure, keep them operating right? The manufacturers walked away. Do we just get rid of them? No, because the equipment still works perfectly. We're going to need a market-based response to that. We're going to need small businesses to step up and say, hey, I'll keep that Samsung dishwasher working for another 20 years. That's a huge economic opportunity for this country, but we cannot do it in the existing system because of the types of restrictions that we're talking about. And so this is really about enabling a secure future in which, when you buy a dishwasher with a 20 year lifespan, or 25 year lifespan, it's going to last that 25 years, not the five to six years that the manufacturer has decided, you know, that's how long we want to support the software for. Paul Roberts: My understanding is the use of design patents has increased dramatically, even exponentially, in the last 10 to 15 years. If you go back to the 90s or 80s, you know, parts makers, automakers were not applying these types of patents to replaceable parts like bumpers and rear view mirrors. Somebody had a business decision that, if you can do so, then we can capture more of that aftermarket by outlawing identical aftermarket replacements that has a huge downstream impact on car owners and on insurers and on all of us. 2:10:15 Paul Roberts: Both of the things that we're really proposing or talking about here, which would be changes to Section 1201 of the DMCA as well as passage of robust right to repair laws, would empower a market-based response to keeping the internet of things working, secure and functioning. DMCA 1201 reforms by making it clear that you can circumvent software locks for the purpose of repair and maintenance and upkeep, right? So that would take the threat of the federal crime away from small business owners as well as security researchers who are interested in, you know, plumbing that software for purposes of maintenance, upkeep and repair. And on the right to repair by making the tools available to maintain and upkeep products - diagnostic software, schematic diagrams, service manuals - available. Once again, you'll be empowering small business owners to set up repair shops and say, I'm going to keep your smart appliance running for its full 25 or 30 year lifespan, and I'm going to support my family doing that locally, and not be basically choked out of business by a company that says, Well, you don't have the right to access this product. From a cybersecurity perspective, that is really important, because one thing we don't want is a population of millions or tens of millions of out of date, unsupported, unpatched, insecure internet connected home appliances, webcams, home routers out there available to nation state actors, cyber criminal groups, to compromise and use for their own purposes. And that's something we already see, particularly around broadband routers and other types of devices, and it's a real threat going forward that I think this type of these types of changes would support. Aaron Perzanowski In a lot of instances, this conversation, and we've touched on this earlier, focuses on cost savings, right? And cost savings are an important consideration, right? Farmers aren't thrilled that they have to pay a technician from the John Deere dealer to drive maybe hours to get to their farm and connect their laptop and, you know, download these payload files to enable their equipment to work. But in the agricultural space, the thing I hear most often in the conversations I have with farmers is and Kyle touched on this a bit earlier, is a real concern about the time sensitivity of their work. If your tractor is out of commission for a week or two in the wrong part of the season, that is going to have disastrous effects, right, not only on that farm's economic outlook, but collectively, it can have an impact like, not to be hyperbolic here, but on our national food supply, and so I think it's really important that farmers have flexibility in terms of where and how they execute repairs, so that they can get their equipment back up and running. If my laptop breaks and I can't get it fixed for a week or two, I'm annoyed there will be emails that go unanswered, but like the world will continue to spin. That is not the case in the agricultural space where we, I think, have to be much more concerned. Rep. Darrell Issa (R-CA): If I remove from my BMW, at least during certain models, I remove the radio, unplug it, and then plug it back in, simply because I was fiddling around with the dash, I now have to go back to the dealer to reinstall it. Similarly, the transmission example. I've got two John Deere tractors. One's got a busted engine, the other's got a busted transmission. Currently, they will prohibit you from moving the transmission from one to the other. From a standpoint of intellectual property, where, in God's green earth or the Constitution, are any of those designed to be rights that belong to the manufacturer, rather than rights that belong to the owners of those two John Deere tractors? Devlin Hartline: So those are a bunch of different situations, and so I think there would be underlying facts that differ with each right. So we started on the iPhone, and I was going to point out that iPhone will actually give you the tool to synchronize it. In those other situations, I don't know the business justification for it. How is that an IP problem? Right? So if that's locked up with the TPM, and you have to bypass the TPM, well then that's a violation of 1201, so that's how they can that's how they can lock -- Rep. Darrell Issa (R-CA): So what you're saying is that Congress has created impediments to the right to repair. Mr. Roberts, would you say that is correct? That, in fact, the right to repair, were Congress never to have done anything since, you know, George and Thomas were our presidents, so to speak, knowing those two presidents, we'd be able to do things we're not able to do because they're now prohibited by acts of Congress. Paul Roberts: Yes, and we certainly know going back to the 50s, 60s, 70s, there was a much more you know....First of all, companies would ship products with service and repair manuals with detailed schematic diagrams with the understanding that owners would want to replace and service them. And what I would say is, yes, absolutely. I doubt very much. And I know we had members who were here in 1998 authoring the DMCA. I think if you had said to them, in 25 years time, this law will be used to prevent somebody with a broken dishwasher from getting that serviced by their local repair shop or by for fixing it themselves, this law will prevent them from doing that, I doubt very much they would have said, yeah, that's pretty much what we want. Rep. Darrell Issa (R-CA): Well, I will tell you that the I was the chairman of what is now the Consumer Electronics Association in 1998 and we did predict a lot of these items were going to be expanded beyond the scope of the original. Paul Roberts: Right now this is not an urgent issue, because most of the cars out there are older vehicles. As we move forward, as telematic systems evolve, as automakers continue their trend of moving more and more information to telematic systems, this is going to become a bigger problem. I'll point out another problem, which is the Massachusetts law is contingent on data transfers of diagnostic and repair information via the OBD or onboard diagnostic two port under the dashboard. That's only there because of federal Clean Air law. Electronic vehicles don't have that port because they don't have emissions, and so in the very near future, as we shift to electronic vehicles, that data access port will no longer be there. It will all be telematics data, and so the utility of the Massachusetts law is going to decline over time, going forward. And again, I you know, when you start talking about right to repair, you become like this crazy person who talks about right to repair every time it comes up. But one thing I try and stress to people when I talk to them about auto repair is, if you live in Michigan or California and you have taken your vehicle to the local independent repair shop, you have only done that because the voters in Massachusetts passed a ballot measure over a decade ago and then updated it in November 2020. That is the very thin thread that our right to use independent auto repair hangs by in this country. That's not the way it's supposed to be. This is something that affects vehicle owners, hundreds of millions of them in all 50 states. And it's a type of thing that the federal government needs to address with federal legislation. It should not hang by this very thin thread. 2:30:20 Rep. Hank Johnson (D-GA): Are software updates new creations, and thus copyrightable? Devlin Hartline: Software updates, yeah, they're computer programs, and so Congress said explicitly in 1980, but it was understood before then, that computer programs are literary works and they're protected, just like any other copyrighted work. Rep. Hank Johnson (D-GA): Thank you, Professor Perzanowski, do you disagree? Aaron Perzanowski: I don't disagree at all that software updates are protectable subject matter under the Copyright Act. But what I think is important to keep in mind right is the Copyright Act and copyrights exclusive rights, and all of the exceptions and limitations to copyrights exclusive rights are created by Congress, and so if you think those rights are interfering with other important issues and concerns, then I think Congress clearly has the power to make changes to the copyright law in order to best serve what you ultimately determine to be in the public interest. 2:35:30 Aaron Perzanowski: Access to firmware and other code is really essential to the functioning and repair of lots of devices. I think there's some important differences between the standard essential patent context and kind of what we're talking about here in that in the standard essential patent context, we're relying on standard setting bodies to identify technologies and to require companies to license their patents under fair, reasonable and non-discriminatory terms. We don't quite have that infrastructure in place in the copyright context, but what we do have are compulsory licenses that exist within the Copyright Act already, one of which you were alluding to earlier, the mechanical license for musical works. We also have compulsory licenses for retransmissions of satellite and broadcast content that essentially say the copyright owner is entitled to compensation of some form, but they're not entitled to prevent people from using or accessing that underlying work, and I think that could be a useful framework here for getting owners of devices access to the firmware that they need. Music by Editing Production Assistance
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On the ground coverage of the Democratic National Convention, which was not as joyful and unified as the party wanted it to seem. Please Support Congressional Dish – Quick Links Contribute monthly or a lump sum via Support Congressional Dish via (donations per episode) Send Zelle payments to: [email protected] Send Venmo payments to: @Jennifer-Briney Send Cash App payments to: $CongressionalDish or [email protected] Use your bank’s online bill pay function to mail contributions to: Please make checks payable to Congressional Dish Thank you for supporting truly independent media! Background Sources Ballot Deadline Reuters Fact Check. July 30, 2024. Reuters. Biden’s Speech: Stop Arming Israel Banner C-SPAN. Democracy Now! on YouTube. Rep. Ro Khanna on the Young Turks The Young Turks (@TheYoungTurks). August 23, 2024. AIPAC Spending Joan E Greve et al. April 22, 2024. The Guardian. Gaza Death Toll Malak A Tantesh and Emma Graham-Harrison. August 15, 2024. The Guardian. Harris Speech August 22, 2024. C-SPAN. Music by Editing Production Assistance
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The Senate recently received testimony from the bipartisan co-chairs of the Commission on the National Defense Strategy, who were tasked with creating a report to Congress with recommendations needed to adapt our National Defense Strategy to current threats. In this episode, hear the testimony about that completed report during which they discuss preparations for a possible world war and the need for more American kids to fight and die in it. Please Support Congressional Dish – Quick Links Contribute monthly or a lump sum via Support Congressional Dish via (donations per episode) Send Zelle payments to: [email protected] Send Venmo payments to: @Jennifer-Briney Send Cash App payments to: $CongressionalDish or [email protected] Use your bank’s online bill pay function to mail contributions to: Please make checks payable to Congressional Dish Thank you for supporting truly independent media! Background Sources Recommended Congressional Dish Episodes The Report Jane Harman et al. July 2024. Senate Committee on Armed Services. Jane Harman: Warmonger Open Secrets. October 10, 2002. Clerk of the U.S. House of Representatives. September 14, 2001. GovTrack. Iridium Communications April 2, 2024. wallmine. GuruFocus Research. March 8, 2024. Yahoo Finance. December 29, 2023. Market Screener. Bing. Iridium. Iridium. Iridium. Retrieved from the Internet Archive’s Wayback Machine version archived November 11, 2022. Axis of Aggression or Axis of Resistance? Angela Skujins. June 8, 2024. euronews. Nikita Smagin. June 15, 2023. Carnegie Politika. Defense Innovation Unit Defense Innovation Unit. Military Service Kristy N. Kamarck. December 13, 2016. Congressional Research Service. Christopher Hitchens. October 3, 2007. Vanity Fair. Mark Daily. Feb. 14, 2007. Los Angeles Times. Israel-Palestine Shay Fogelman. August 16, 2024. Haaretz. Steven Scheer and Ali Sawafta. August 14, 2024. Reuters. July 2, 2024. Al Mayadeen English. Steve Crawshaw. January 26, 2024. The Guardian. Patreon August 12, 2024. Patreon. C-SPAN Fundraiser C-SPAN. Bills: NDAA 2025 Audio Sources July 30, 2024 Senate Committee on Armed Services Witnesses: Jane M. Harman, Chair, Commission on the National Defense Strategy Eric S. Edelman, Vice Chair, Commission on the National Defense Strategy Clips 26:20 Sen. Roger Wicker (R-MS): The document details the way in which the 2022 National Defense Strategy and Assessment, completed just two years ago, did not adequately account for the threat of simultaneous and increasingly coordinated military action by our four primary adversaries. A group which I have come to call the Axis of Aggressors. Sen. Roger Wicker (R-MS): I appreciate the Commission's recommendation that national security spending must return to late Cold War levels — a goal which matches my plan to spend 5%, eventually, of GDP on defense. That level of investment would be temporary. It would be a down-payment on the rebuilding of our national defense tools for a generation. Tools that have sharpened can reduce the risk that our adversaries will use military force against US interests. 33:10 Jane Harman: The threats to US national security and our interests are greater than any time since World War II, and more complex than any threats during the Cold War. 34:00 Jane Harman: Sadly, we think, and I'm sure you agree, that the public has no idea how great the threats are and is not mobilized to meet them. Public support is critical to implement the changes we need to make. Leaders on both sides of the aisle and across government need to make the case to the public and get their support. Eric Edelman: There is potential for near-term war and a potential that we might lose such a conflict. The partnership that's emerged among China, Russia, Iran, and North Korea is a major strategic shift that we have not completely accounted for in our defense planning. It makes each of those countries potentially stronger militarily, economically, and diplomatically, and potentially can weaken the tools we have at our disposal to deal with them. And it makes it more likely that a future conflict, for instance, in the Indo-Pacific, would expand across other theaters and that we would find ourselves in a global war that is on the scale of the Second World War. Eric Edelman: The 2022 NDS identified China as the pacing challenge. We found that China is, in many ways, outpacing the US. While we still have the strongest military in the world with the farthest global reach, when we get to a thousand miles of China's shore, we start to lose our military dominance and could find ourselves on the losing end of a conflict. China's cyber capabilities, space assets, growing strategic forces, and fully modernized conventional forces are designed to keep us from engaging in the Taiwan Strait or the South or East China seas. China, as has been testified to before Congress, has infiltrated our critical infrastructure networks to prevent or deter US action by contesting our logistics, disrupting American power and water, and otherwise removing the sanctuary of the homeland that we have long enjoyed. 38:00 Eric Edelman: For its part, Russia has reconstituted its own defense industrial base after its invasion of Ukraine much more rapidly than people anticipated. Vladimir Putin seeks to reassert Russia as a great power and is happy to destabilize the world in order to do so. 38:15 Eric Edelman: Our report describes the threats posed by Iran, North Korea, and terrorism as well. Clearly, Iran and North Korea both feel emboldened by the current environment, and terrorism remains a potent threat fueled by the proliferation of technology. As the DNI has said, the current war in the Middle East is likely to have a generational impact on terrorism. 39:20 Jane Harman: First finding: DoD cannot and should not provide for the national defense by itself. The NDS calls for an integrated deterrence that is not reflected in practice today. A truly all elements of national power approach is required to coordinate and leverage resources across DoD, the rest of the Executive branch, the private sector, civil society, and US allies and partners. We agree with the NDS on the importance of allies, and we commend the administration for expanding and strengthening NATO and building up relationships and capabilities across Asia. We also point out ways for the United States to be better partners ourselves, including by maintaining a more stable presence globally and in key organizations like NATO. We call for reducing barriers to intelligence sharing, joint production, and military exports so we can better support and prepare to fight with our closest allies. 40:25 Jane Harman: Second recommendation is fundamental shifts in threats and technology require fundamental change in how DoD functions. This is particularly true of how DoD works with the tech sector, where most of our innovation happens. We say that DoD is operating at the speed of bureaucracy when the threat is approaching wartime urgency. DoD structure is optimized for research and development for exquisite, irreplaceable platforms when the future is autonomy, AI and large numbers of cheaper and attritable systems. I know this because I represented the Aerospace Center of Los Angeles in Congress for so many years, where exquisite, irreplaceable satellite platforms were built. And now we know that there is a plethora of commercial platforms that can do many of the same things and offer redundancy. DoD programs like Replicator and the Defense Innovation Unit and the Office of Strategic Capital are great, but they're essentially efforts to work around the larger Pentagon system. 42:00 Eric Edelman: Mr. Wicker, you raised the issue of the foresizing construct in your opening statement, and we, as you noted, found that it is inadequate. I mean, it was written actually before the invasion of Ukraine and before the emergence of this tightening alliance between Russia and China. And we propose that the force needs to be sized, the joint force, in conjunction with US allies and partners, to defend the homeland, but simultaneously be able to deal with threats in the Indo-Pacific, Europe, and the Middle East. These are not all the same fights, so different elements of the force would be required in different parts of the globe, but US global responsibilities require a global military response as well as a diplomatic and economic one. 43:20 Eric Edelman: The DoD workforce and the all-volunteer force provide us with a kind of unmatched advantage, but recruiting failures have shrunk the force and have raised serious questions about the sustainability of the all-volunteer force in peacetime, let alone if we had to mobilize for a major conflict or a protracted conflict. 44:30 Jane Harman: Additionally, we think that Congress should revoke the 2023 spending caps and provide real growth — I know Senator Wicker loves this one — for fiscal year 2025 defense and non-defense national security spending that, at a bare minimum, falls within the range recommended by the 2018 NDS Commission. That range was never achieved. Subsequent budgets will require spending that puts defense and other components of national security, other components jointly across government and the tech sector and partners and allies, on a glide path to support efforts commensurate with the US national efforts seen during the Cold War. Jane Harman: We agree on a unanimous basis that the national debt is its own national security challenge. If we want to approach Cold War levels of spending, we need to increase resources and reform entitlement spending. 45:40 Jane Harman: During the Cold War, top marginal income tax rates were above 70% and corporate tax rates averaged 50%. We don't call for those numbers, but we are calling for an increase in resources and point out that interest on the debt is higher than our total top line of defense spending. 49:55 Jane Harman: The notion of public service isn't new as you know, Mr. Chairman, it's been around for years. It was around when I served in Congress, and Congress did not act on any of the proposals that I saw. It is still a way to get all of the public, at the proper age, engaged in understanding the requirements of citizenship. A lot of our young people have no earthly idea, sadly, because they have no civic education, what our government really is and what are the ways to serve. And surely one of the most honorable ways to serve is as a member of the military, you did it, and other members of this committee have done this. And I think that is the way to revive a kind of sense of coherence and patriotism that we are lacking right now. Eric Edelman: We have not really, as a society, talked about the need for national mobilization, but if the worst were to happen and some of the worst scenarios we discuss in our report were to come to pass and were we to face a global conflict, it would require mobilization on the scale of what we did as a nation during World War II. And we haven't done that in a long time. We haven't thought about that in a long time. There are a lot of elements to it, including stockpiling strategic materials, but being able to rapidly bring people into the military, et cetera, I just don't think we are prepared to do it. I think we have to have a national discussion about this, and I think it goes hand in hand with the earlier discussion you had with my colleague about public service and serving the nation. 52:05 Sen. Jack Reed (D-RI): We had in World War II, two years, essentially from September 1st, 1939 to December 7th, 1941, to prepare. And I doubt we'll have two years to prepare in this environment. Eric Edelman: President Putin, in some ways, has done us a bit of a favor by having invaded Ukraine and exposed, as a result, some of the limitations of US defense industrial production, and shown that it's grossly inadequate to provide the equipment, technology, and munitions that the US military and our allies and partners need today, let alone given the demands of a potential future conflict, which might be even more taxing. Jane Harman: I remember being a member of the Defense Policy Board when Jim Mattis was Secretary of Defense, and his piece of advice to us was, let's do everything we can to keep Russia and China apart. Well, oops, that has not happened. And there is this close friendship and collaboration between them. You asked how is it manifested? Well, we see it most at the moment in Ukraine, where Russia was the aggressor violating international law and invading Ukraine, and China is a huge help to Russia in evading our sanctions by buying Russian gas and by its efforts to ship into China material for the war. And then you add in, as you mentioned, Iran and North Korea, which are suppliers of drones and other lethal material to Russia. And this unholy alliance, or I think you call it Alliance of Aggression, is extremely dangerous. Let's remember that both North Korea has nuclear weapons, Iran is at breakout for nuclear weapons, and the other two countries are nuclear countries. And where this goes is, it seems to me, terrifying. And that is, again, why we need to leverage all elements of national power to make sure we deter these countries from acting against us. Eric Edelman: Ukraine offered to give up, and I was involved in some of the diplomacy of this back in the nineties, the nuclear weapons that were left on its territory after the end of the Soviet Union. As a result of that, Ukraine gave them up, but in exchange for assurances from the United States, Russia, Great Britain and France, that its territorial integrity would be recognized along the borderlines that existed before the 2014 seizure of Crimea by Putin, which was a violation of those undertakings. If our assurances in the non-proliferation realm in this instance are shown to be hollow, it will raise questions in the minds of all of our allies about the assurances we've given them, our extended deterrent assurances, whether it's for our allies in Europe, part of our multilateral NATO alliance, or our bilateral allies in East Asia, or our partners, parts of special relationships we've developed in Middle East with Israel, the Kingdom of Saudi Arabia, the UAE, and Egypt and others. So the whole fabric, frankly, of the international order is at risk here, depending on the outcome in Ukraine. And to your point, if Putin is successful in Ukraine, the lesson that Xi Jinping is likely to draw is that he too can be successful in Taiwan or in the East China Sea or the South China Sea. Eric Edelman: Nuclear deterrence, Senator Fisher, is the fundamental on which everything else is built in terms of our national security. It's operating every day. It's not visible to American citizens, but the fact of our nuclear deterrent force, all three legs of the triad being available is the most powerful deterrent that we have to conflict. It's not sufficient, but it is the absolute basis, and we really, I think, agreed with the conclusion our colleagues on the Strategic Posture Commission reached, which is that we have to move forward with alacrity on all the elements of modernization of the nuclear triad. That's the GBSD Sentinel Program, that is the B-21, that is the Ohio replacement class. All of those things have to be accomplished and there are problems. One of the reasons we highlighted education is that some of the problems that GBSD are running into have to do with lack of skilled workers to be able to pour the kind of special reinforced concrete that you need for the new silos for missiles, the new control systems for missiles. We lack welders in the submarine industrial base, as Senator Wicker knows well. So there's a lot that has to be done across the board in order to move forward with nuclear modernization, but it is absolutely fundamental to our ability to deter aggression against our allies and of course against the homeland. Eric Edelman: The force right now is too small, and so we have to grow the force, and that's in the face of the recruiting challenges that we've highlighted in the report that the Army in particular, but also the Navy and the Air Force have faced. Sen. Deb Fischer (R-NE): And I'm going to interrupt you. Please. Why is it too small? Can you explain in this setting the threats that we are facing when we look at the adversaries that we face and how that has changed over the last decade? Eric Edelman: It's too small, in part because the Department was sizing itself for one conflict. But if you have to be present in three theaters, as we are now, we've got conflicts in two theaters now, if we have a third conflict in the third theater, it's going to require a lot more forces. People talk, for instance, about the Indo-Pacific being largely a Navy and Air Force fight. That's correct, but the logistics that support the Navy and the Air Force will largely be manned by the Army. And so we have to have an Army that is sufficiently large that it can operate in all of these places, potentially simultaneously, because honestly, it is very hard to imagine today a conflict in the Indo-Pacific that doesn't become a global conflict very quickly. Someone asked earlier in the hearing about cooperation between Russia and China. The last time I testified before this committee was two years ago about the so-called "Three Body Problem," Russia and China being both nuclear peers of the United States. And one of the criticisms that was leveled at my colleague, Frank Miller and me, was that, well, there's no evidence that Russia and China are collaborating in the nuclear area. Well, we just saw them flying strategic bombers together up near Alaska, so I don't know what more evidence you want that they're beginning to collaborate in that strategic area. Eric Edelman: If we got into some kind of conflict in the Indo-Pacific, whether it be over Taiwan or the South China Sea or East China Sea, what might Russia do? One thing that comes to mind is take advantage of the separatist movement in Moldova to move on Moldova, a country that's trying to move closer to the European Union and to the West, which would then precipitate additional conflict in Europe, or take advantage of the ethnic Russian speaking minorities in the Baltic states, say Latvia, to initiate a conflict there. How would we manage that? When you raise that question with Department [of Defense] leaders, they basically say, well, that — to go back to the chairman's point earlier — well that would be sort of like World War II or would require national mobilization, and that's correct, but we haven't really taken the next steps to really focus on what that and what a protracted conflict would actually look like. We're optimized to fight very short wars. 1:21:00 Sen. Mike Rounds (R-SD): There are five different domains in which our country will be attacked in the future. Air, land, and sea, most people would understand, but space and cyberspace are the new domains, which will precede any attack on the first three. Jane Harman: On cyber, it's a huge threat and I don't think we minimize it in any way. One of the things we might anticipate, for example, is if China decides to annex Taiwan, or whatever euphemism they might use, they might engage in a major cyber attack here first, for which we are under-prepared, a cyber attack of our infrastructure. When I was in Congress, I represented the Port of Los Angeles, which with the Port of Long Beach is the largest container port complex in the country. 50% of our container traffic enters and exits through those ports. There are cranes on the port to move the cargo, and those cranes have Chinese technology. So guess what? Sen. Mike Rounds (R-SD): All of which are subject to the possibilities of cyber attack. Jane Harman: Absolutely. We should anticipate that our ports could go down. Sen. Mike Rounds (R-SD): Throughout our entire society, we find that to be the case though. Jane Harman: I'm agreeing with you and this is devastating. Does the American public understand this? No. Jane Harman: You also mentioned space. Again, something I know something about, since I used to call my district the aerospace center of the universe, where most of our intelligence satellites were made. We are more dependent on space as a country and more vulnerable in space because of that dependency than any other country. Shoring up space, which is one of the threats we address, is absolutely crucial. And it's not just military space, but commercial space. You talked about communication. A lot of how we communicate is through commercial space and think how inconvenienced the public would be if all of a sudden their little devices, which we're all dependent on, didn't work. Sen. Tommy Tuberville (R-AL): What's hurting us too is a lot of our government schools, I call 'em government schools because I went in thousands of them while I was coaching, recruiting, and the problem we have is hate that's being taught in a lot of our government schools, towards our country. Why would any young man or woman want to fight for a country that they don't believe in, that they're being taught to hate? It's absolutely amazing to me the direction this country is going. So is there any agreement there, Representative Harman? Jane Harman: There is agreement there. I think hate on both sides is totally destructive. I think the absence of civics education and the absence of institutions that help people understand what patriotism means. We had a conversation about national service, which might be a way to get all of our youth back together. I mean, this country sadly, is in a point where many people say our biggest enemy is us fighting each other. 1:33:35 Jane Harman: One of the problems is the kind of deployments the military does every two years. Moving somewhere where in many cases the spouse works and having to change his or her job every two years is very burdensome. It's also hard on kids, and so that could change. 1:36:20 Eric Edelman: The BRICS was actually kind of an invention of Goldman Sachs. It's not really a serious military organization. Jane Harman: But I think that Congress is somewhat complicit in the way the budget process doesn't work, and this insistence on requirements and oversight rather than on what is the problem set we are solving for, which is how the tech sector thinks. I've been making a comment about DIU, the Defense Innovation Unit, that was set up by the late Secretary Ash Carter, that maybe we should outsource the Pentagon to DIU, which is ably headed by someone named Doug Beck, who had 11 years experience in the private sector, because they know how to think about this. I couldn't agree with you more. The budget of DIU is $1 billion out of $850 billion. Doug Beck says he can leverage that. Sen. Angus King (I-ME): It's technologies that win wars, new technology, right? Jane Harman: I'm in violent agreement with you. He says he can leverage that into $50 billion of commercial investment, but that's still a pittance compared to the kind of change we need to undergo. Not just at the Pentagon, but at the Pentagon lashed up with other government agencies, with the tech sector, and with partners and allies. That is our point about all elements of national power, which will win the next war. 1:42:55 Sen. Tom Cotton (R-AR): Ambassador Edelman, you spoke with Senator Fischer about the multiple theater force construct. Basically the kind of threats we're planning for, and there's a time when this nation planned to fight two major wars at a time, and I think now we're down to a force that can fight one conflict and protect our homeland, and hopefully scare bad guys everywhere else around the world and not starting war. Is that right? Eric Edelman: That is correct. That's what the 2022 NDS describes. Sen. Tom Cotton (R-AR): So that's what our national Defense Strategy says. Is the current force even capable of doing that, in your opinion? Putting aside what it should be capable of doing, which I'll come to momentarily. Can it even do that? Eric Edelman: I think there are very serious questions about whether the force in being could actually execute the strategy. Jane Harman: The word pivot probably should be retired. I don't think we can leave anywhere. I think we have to have an understanding of the threats against us, not just against regions, everywhere. The whole idea of this multiple force construct is flexibility and having an adequate deterrence so we don't engage in more wars. Sen. Joe Manchin (D-WV): In your report you talked about the current force structure that we have, and I think you had identified that the Marines are only ones meeting that. We agree with that. What you failed to do is basically identify why we have not, or why you all did not, take up women being in selective service or joining selective service, because women make up 74% of the healthcare and education industry, 52% of financial activities. They're a tremendously strong force. And there's a lot of women I don't want to go up against. I can tell you that in so many ways. I guess my question is simple. Does the commission support women registering for selective service? Jane Harman: Well, I'll speak for myself. I do. I think that women are, a majority of our population, a majority of the talent pool, many of the most talented women serve on this committee. So yes, they should be. We should be. Sen. Joe Manchin (D-WV): I'll make it clear that what we talked about does not require women to participate in military draft. Jane Harman: I understand. It's registering. Sen. Joe Manchin (D-WV): Yeah, registering, that's all. Jane Harman: And my answer to that is yes. Eric Edelman: Our view was that you have to be able to deter and potentially defeat adversaries in all three of the main theaters that we have been engaged in since the end of the Second World War, and which we repeatedly engaged in. I mean, there's been no shortage of efforts to try and extricate the United States from the Middle East. The last NDS in 2018 said we should be willing to run risk in the Middle East. I think on October 7th we got a sense, and then again on April 13th, of what running additional risk means in the Middle East. So it's our view that we have to be able to manage to do all of those things. Eric Edelman: The homeland, if there's a conflict, is not going to be a sanctuary anymore. And the first attacks will likely be in the cyber domain, and they will be incredibly disabling for our society, but also for the department. But getting all of the agencies of government that would have a role in all this, because it goes beyond just DoD, it goes beyond just DHS, I mean, it goes to the Department of Transportation, it goes to Commerce. I mean, it's an unbelievably complex issue. And we're only now wrapping our minds around it and it needs a lot more work and attention from the department. Jane Harman: The public is essentially clueless about the massive cyber attacks that could be launched any day by our adversaries, not just nation states, but rogue actors as well. Music by Editing Production Assistance
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