USTR Gives MPAA Full Online Access To TPP Text, But Still Won't Share With Senate Staffers

from the transparency? dept

US Trade Representative (USTR) Ron Kirk continues to insult the intelligence of the Senate. During a recent hearing Senate hearing at which Kirk appeared, Senator Ron Wyden once again quizzed Kirk about the lack of transparency the USTR has (video link, key point starts around 89 minutes and 30 seconds) regarding the Trans Pacific Partnership (TPP) agreement. Except, this time, Wyden went one step further. He pointed out that while many in Congress have no real access to the document, special interest company representatives are given special logins to the USTR’s site, allowing them full access to the text of the document. We’ve pointed out many times before that Kirk seems to have given himself over entirely to the special interests, and this kind of access only shows how true that is. But where Kirk returns to being a disingenuous apologist for these special interests is to argue that this is no big deal because anyone in Congress can see the document too.

Wyden: What I’ve learned is that when trade agreements are negotiated, industry advisors sit in a far stronger position than virtually everyone in the Congress. For example, an industry advisor from the Motion Picture Association can sit at their desk with a laptop, enter their username and password, and see the negotiating text of a proposed trade agreement. Virtually no one in the Congress has the ability to do that. How is that right?

Kirk: Well, Senator, I want to make it plain, that it’s not just industry, but it’s all of the members of our trade advisory commissions which are established by this Congress, and they’re cleared advisors, they have security clearance and they represent a broad range of interests from both industry and environmental groups, business groups…. Every member of Congress, any member of Congress, that wants to see the text of a trade agreement we’re negotiating has the ability to do so, as long as we’re doing so in a secure environment that’s private, so I would only offer that one clarification that any elected official in this body has the ability to see the same text as any of those cleared advisors.

Kirk’s answer is insulting in how misleading it is. He chooses his words very carefully, so let’s break this down to expose why Wyden is concerned, and why Kirk’s answer is no answer at all. Remember, folks on the MPAA and other “industry advisors” (of which there are no internet company representatives) have a direct login, so they can access the latest negotiating docs wherever they’d like. Kirk’s response, in which he claims that any member of Congress can see the same text is technically true, but it is not the same level of access. What Kirk meant is that any member of Congress can go to the USTR offices by themselves and be shown a copy of the negotiating text on a so-called “read and retain basis.” That means: no notes, no copies, no staff — even staff that have all the necessary “security clearance” as Senator Wyden himself found out when he had a trade expert on his staff obtain the necessary security clearance, only to find that the USTR denied him access to the documents.

So, let’s compare: the MPAA and other industry groups can log into a website at their own convenience. They are even allowed to (with certain limitations) share parts of the text with others, supposedly for the sake of getting an “analysis” of what the text means. But when a Senator — who is the chair of the Senate subcommittee on International Trade — wants to take a look at the same document, he has to go to a “private room” where he will be shown the document, but not allowed to make copies, take notes or bring along his own staff expert on the matter.

Who does it sound like Ron Kirk is listening to more in this case? The MPAA? Or the Senator who’s supposed to have oversight concerning the agreement. I tend to think the word “corrupt” is thrown around too easily, but at this point, is there any way to look at this situation and not judge it to be a case of massive corruption?

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Comments on “USTR Gives MPAA Full Online Access To TPP Text, But Still Won't Share With Senate Staffers”

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114 Comments
Pjerky (profile) says:

It sounds like someone needs to be fired

If some a-hole at the USTR wants to pretend that he has more of a right to control and see the documents that they make that the US is held accountable for than any elected member of Congress then he has another thing coming to him.

I think it is time to fire him, throw out anything he was working on, and hire someone who isn’t corrupt.

Mike Masnick (profile) says:

Re: Re: It sounds like someone needs to be fired

if it’s not government legislation why do senate staffers need to see it?

Trade agreements are under Congress’ mandate. They have to approve trade agreements. As such, you would think that the USTR would allow Congressional trade experts to give their thoughts on the matters at hand.

That One Guy (profile) says:

Re: Re: Re:2 It sounds like someone needs to be fired

>Perhaps the senate needs to demand it from the RIAA.

That actually sounds like a good idea.

Trying to pry the details out of Ron Kirk is basically like trying to get the details on a business transaction by grilling the secretary. In both cases, the person being asked for information has, at best, a sketchy idea of what’s going on, they’re just being paid to sit there and deflect attention and questions so the bosses aren’t bothered.

Mike Masnick (profile) says:

Re: Re: Re:6 It sounds like someone needs to be fired

Actually dumb ass, it’s an executive agreement not subject to ratification by the Senate. You really should do 2 minutes of basic research before you come here and make a fool of yourself…. again.

This is just hilarious. You might want to pay attention to your own second sentence. Because if you had done your research you would find out that the USTR classifies TPP as a “free trade agreement” subject to Senate ratification, not an executive agreement.

Such a spectacular failure. You’re so vehement, and so insulting, and… so wrong. And you even yell at him for not doing his research when he’s 100% right and you were the one who failed to do the research.

It’s just… perfect.

Anonymous Coward says:

Re: Re: Re:7 It sounds like someone needs to be fired

I’m not so sure you’re right Chubby. In any event, there are a number of other sources that state it is an executive agreement. Reading the letter sent to the USTR seems to also imply that it is an executive agreement as well:

Dear Ambassador Kirk:
We write regarding the ongoing Trans-Pacific Partnership (TPP) negotiations, a regional free trade agreement proposal touted as a model for all future U.S. trade and investment agreements. We are concerned that this process has excluded both Members of Congress and key stakeholders. As a result, groups essential to the success and legitimacy of any agreements are not being provided the opportunity to provide meaningful input on negotiations that have broad policy ramifications.

In the past, most U.S. trade agreement texts have not been made available until after they were signed. As a result, changes were all but impossible. If Congress and the broader public are not informed of the exact terms of the agreement until the conclusion of the process, then the opportunity for meaningful input is lost. The lack of transparency and input makes passage of trade agreements more contentious and controversial.

Extensive consultations with Congress and stakeholders are essential because of the unprecedented scope of these negotiations. Indeed, the negotiations USTR is pursuing will create binding policies on future Congresses in numerous areas where there is significant public interest, including policies related to labor, environment and natural resources, land use, food, agriculture and product standards, intellectual property rights, state-owned enterprises and government procurement policies, as well as financial, healthcare, energy, telecommunications and other service sector regulations. In an effort to ensure full public disclosure and consultation, we request that the USTR provide the public with detailed information and consistent updates on what USTR is seeking in the TPP on these matters of broad public interest.

One additional area of concern is copyrights. The significant concerns that bills like Stop Online Piracy Act (SOPA) and Protect IP Act (PIPA) met from the public, underscore how unsettling such matters can become without a broad consultative process. The copyright language in the TPP may not mirror the approach of SOPA and PIPA, but due to the secrecy surrounding the TPP there is no guarantee that it will not. Since the terms will only be made public after an agreement is signed, the stakes are too high to exclude important stakeholders and Congress from the negotiation process.

Therefore, we request that you expand the consultation process by broadening the scope of the Industry Trade Advisory Committee (ITAC) for Intellectual Property Rights to include key stakeholders advocating for internet freedom as well as right-holders. A separate committee to address these concerns should be given consideration as well.

We believe these recommendations would demonstrate a commitment to this Administration?s goals of making the federal government more transparent and responsive. We look forward to discussing these issues with you.

Sincerely,

Sherrod Brown, U.S. Senator
Ron Wyden, U.S. Senator
Jeff Merkley, U.S. Senator
Robert Menendez, U.S. Senator

Mike Masnick (profile) says:

Re: Re: Re:8 It sounds like someone needs to be fired

Nowhere in that document do they refer to it as an exec agreement. Instead, they refer to it — as everyone else does — as a “trade agreement.”

Even the USTR lists it in its “free trade agreements” section — all of which have required ratification.

You’re wrong.

Anonymous Coward says:

Re: Re: Re:8 It sounds like someone needs to be fired

Do you even read what you post???

We write regarding the ongoing Trans-Pacific Partnership (TPP) negotiations, a regional free trade agreement proposal touted as a model for all future U.S. trade and investment agreements.

Dude. Seriously.

Anonymous Coward says:

Re: Re: Re:4 It sounds like someone needs to be fired

Yep under international law they are all called treaties, the US makes a distinction on it and the problem with going alone is that that agreement eventually will need congress to pass laws to be compliant, without support from congress the executive agreement means shit.

Now go study international law dumbass.

http://www.treatylaw.org/whatisatreaty.asp

You keep arguing semantics and is full of shit.

Anonymous Coward says:

Re: Re: Re:5 It sounds like someone needs to be fired

Sorry, I thought that the subject was the need for Wyden to have his greasy fingers in the negotiations.

In the case of treaties, his job is to vote to ratify or not. In the case of exec agreements, his job is to vote for or against conforming laws. No where is it in the scope of his authority to be part of the negotiating process.

Anonymous Coward says:

Re: Re: Re:6 It sounds like someone needs to be fired

If he can’t see the agreement and have no input in it why should he vote for it?

Besides the US congress under the terms of the constitution has been granted the power to do trade agreements not the executive, so why are they being kept out of the loop? Why is congress not being consulted?

If congress decides to repeal any executive agreement they have all the power they need to do so, if congress choses to ignore any international executive agreement on commerce what makes you believe the president will have a say in it?

Anonymous Coward says:

Re: Re: Re:6 It sounds like someone needs to be fired

Sorry I thought the US constitution was clear on whom has the power to regulate commerce with foreign powers and that is not the executive. Has the US constitution been rewritten to grant exclusive powers to deal with commerce without the input of congress to the executive branch, or congress still have that constitutional power?

Mike Masnick (profile) says:

Re: Re: Re:6 It sounds like someone needs to be fired

Sorry, I thought that the subject was the need for Wyden to have his greasy fingers in the negotiations.

In the case of treaties, his job is to vote to ratify or not. In the case of exec agreements, his job is to vote for or against conforming laws. No where is it in the scope of his authority to be part of the negotiating process.

This is incorrect.

Wyden is chair of the subcommittee on international trade, and as such, has oversight concerning international trade. And as this is not an exec agreement — despite your ignorant assertion to the contrary — Wyden’s job is direct oversight over the agreement.

Furthermore, when it comes to IP issues — which are only one part of the TPP — the executive branch *has no authority at all* to negotiate. That is only the authority of Congress, as granted by the Constitution.

Separately, because international trade is also the mandate of Congress, the executive branch *cannot* negotiate an international trade agreement without *initial* permission from Congress. There was a blanket permission — which *EXPIRED* in 2007. The USTR has been negotiating without this permission. A few months ago it asked Congress to once again grant it such permission — showing that it knows it currently does not have the authority to be doing this — and Congress has not yet given the USTR that permission.

So, er, Wyden has many, many direct reasons to question Kirk here. Your version of the story is, once again, one borne of ignorance of the situation.

Josef Anvil (profile) says:

Re: Re: Re:7 It sounds like someone needs to be fired

Sorry Mike, but they got you on this one.

When it comes to draconian copyright laws and the reality of what is happening in the market, you do a great job. You are often VERY correct.

Stating that Senator Wyden has oversight concerning international trade holds about as much weight as stating that piracy is destroying culture.

The reality is that Senator Wyden needs a security clearance to enter a room and browse documents that he cannot share with congressional staffers, and has no input in the negotiations, while MPAA execs can login at home and look at those same documents and share them and discuss them with whomever they like. Those same execs have influence to steer the negotiations and actually have oversight of this trade negotiation.

If Wyden ACTUALLY had oversight of this trade negotiation then he wouldn’t have to quizz Kirk about the lack of transparency.

That being said, you are correct about the insane level of corruption that this trade negotiation shines a spotlight on.

Anonymous Coward says:

Re: Re: Re:7 It sounds like someone needs to be fired

Really?

Congress most recently granted the President temporary trade negotiating authority utilizing this approach in the Bipartisan Trade Promotion Authority Act of 2002 (BTPAA), contained in Title XXI of the Trade Act of 2002, P.L. 107-210. Although the authority expired during the 110th Congress, agreements entered into before July 1, 2007, remained eligible for congressional consideration under the expedited procedure. The President had entered into free trade agreements with Colombia, Korea, and Panama before this date, each of which awaited congressional approval at the time. In October 2011, Congress approved the three pending agreements, making a total of 11 free trade agreements approved under the BTPAA process.

In addition, the United States Trade Representative (USTR), on behalf of the President, notified the House and Senate in December 2009 by letter that the President intended to enter into negotiations aimed at a regional, Asia-Pacific trade agreement, known as the Trans-Pacific Partnership (TPP) Agreement. Notwithstanding the expiration of BTPAA authorities, the USTR has stated the Administration was observing the relevant procedures of the act with respect to notifying and consulting with Congress regarding these negotiations.

http://www.fas.org/sgp/crs/misc/97-896.pdf

Mike Masnick (profile) says:

Re: Re: Re:8 It sounds like someone needs to be fired

Yes, the USTR is of course claiming it has the authority to move forward even after BTPAA expired, but that’s because it wants to keep negotiating. Plenty of people, including those in Congress have pointed out that they do not believe it has the authority to continue.

I don’t see how the USTR unilaterally claiming it has authority is proof that they do.

Anonymous Coward says:

Re: Re: Re:7 It sounds like someone needs to be fired

Oddly, there are people (including Alexander Hamiton and Justice Sutherland) who do not share your view of Wyden’s role:

Alexander Hamilton reasoned that the executive vesting clause, which states that ?the executive Power shall be vested in a President,? was a much broader grant of power than what was subsequently enumerated in Article II (see Corwin 1984: 208?10). The treaty-negotiating power is an executive monopoly, given the president?s role as chief diplomat, with the Senate playing a veto role. This is the argument used by proponents of executive power in the inter- national realm, such as Hamilton, and furthered by future jurists, such as Justice Sutherland, who wrote that the president ?alone negotiates? (quoted in Corwin 1984: 488). Under this view, presidents negotiate treaties and then receive advice and consent once the treaty has been made. Corwin (1984: 210) explains, ?Ordinarily this means that the initiative in the foreign field rests with [the president]. . . . He is consequently able to confront the other departments . . . with faits accomplis at will. On the other hand, Congress is under no constitutional obligation to back up such faits accomplice.?

Mike Masnick (profile) says:

Re: Re: Re:4 It sounds like someone needs to be fired

Snivel all you like. Executive agreements have been around for a very long time and have full legal force and effect.

Again, this is wrong. It is not and has never been described as one. You’re confusing ACTA with TPP. TPP has never been described as an exec agreement, because it’s not. It’s a full on trade agreement and everyone (except you) admits that it’s subject to Senate ratification.

Anonymous Coward says:

Re: Re: Re:4 It sounds like someone needs to be fired

Explain what that a treaty needs 2/3 of the congress for approval, an executive agreement needs only the president to make and then congress to pass laws or that a congress-executive agreement needs half the votes on both chambers to pass?

You need a teacher to tell you that all those things are one and the same under international law?

http://en.wikipedia.org/wiki/Treaty

Anonymous Coward says:

Re: Re: Re:5 It sounds like someone needs to be fired

a treaty needs 2/3 of the congress for approval

Not Congress. You should have written ?Senate.?

Article II. Section 2 Paragraph 2

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur;.?.?.?.

(Emphasis added.)

Senate.

Anonymous Coward says:

Re: Re: Re:4 It sounds like someone needs to be fired

There is a fucking reason presidents chose to go the treaty path and that is historically without the support of congress any “executive agreements” become toothless without congress to make and approve supporting laws.

Or is the president going to rule by decree now?

Anonymous Coward says:

Re: Re: Re:4 It sounds like someone needs to be fired

Also ask you teacher what Section 8 of the US constitution means.

“The Congress shall have power To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”

Where are the powers granted to the executive to regulate commerce alone with foreign Nations again?

What it means is that although the executive could try, congress can refuse any agreements done without its consent.

Making “executive agreements” useless if you don’t have congress support for it, which is why historically presidents sought under US law the “treaty” path because they would need congress down the line.

Apparently agreements have a special meaning for US law too, it means making short term deals that are not very long in duration, now using it to describe a long term deal with foreign powers is a weasel move and everybody can see it.

The Supreme Court has said that the words “treaty” and “agreement” were technical terms of international diplomacy, when the Constitution was written. See Holmes v. Jennison, 39 U.S. 540 (1840): “A few extracts from an eminent writer on the laws of nations, showing the manner in which these different words have been used, and the different meanings sometimes attached to them, will, perhaps, contribute to explain the reason for using them all in the Constitution….Vattel, page 192, sec. 152, says: ‘A treaty, in Latin foedus, is a compact made with a view to the public welfare, by the superior power, either for perpetuity, or for a considerable time.’ Section 153. ‘The compacts which have temporary matters for their object, are called agreements, conventions, and pactions. They are accomplished by one single act, and not by repeated acts. These compacts are perfected in their execution once for all; treaties receive a successive execution, whose duration equals that of the treaty.’ Section 154….After reading these extracts, we can be at no loss to comprehend the intention of the framers of the Constitution in using all these words, ‘treaty,’ ‘compact,’ ‘agreement.'”

Anonymous Coward says:

Re: Re: Re:6 It sounds like someone needs to be fired

Doesn’t even matter here. No one has argued TPP is an exec agreement other than clueless AC above. Everyone, including the USTR, admit that it’s a trade agreement subject to Senate ratification.

Except Margot Kaminski, the clueless Executive Director of Yale Law School’s Information Society Project.

“The USTR’s office has increasingly used executive agreements like the TPP to get around the requirement in Article II of the Constitution for Senate ratification of treaties, said Executive Director Margot Kaminski of Yale Law School’s Information Society Project.”

http://www.law.berkeley.edu/13578.htm

Anonymous Coward says:

Re: Re: Re:6 It sounds like someone needs to be fired

This from gamepolitics.com:

“U.S. Senator Ron Wyden (D-ORE.), Chairman of the U.S. Senate Finance Subcommittee on International Trade Customs and Global Competitiveness, introduced legislation this week that would clarify the USTR?s obligation to share information on trade agreements with Members of Congress. Wyden, who spoke on the floor of the Senate about why this is necessary, has been a critic of the Administration?s handling of international treaties including ACTA and most recently the Trans Pacific Partnership (TPP). At the heart of this new practice of skipping congressional oversight and approval on international treaties like ACTA and TPP is the USTR. They have also been responsible for negotiating these treaties in secret.”

So, it appears that I am among the many that understands TPP to be an executive agreement, not a treaty subject to 2/3’s ratification by the Senate. Perhaps you’d care to share a citation stating otherwise, or issue a lavish apology.

Mike Masnick (profile) says:

Re: Re: Re:4 It sounds like someone needs to be fired

Ask your high school history teacher to explain it to you next year. In the meanwhile, sit in the corner with your dunce cap on, and continue to wish it away.

I love it. You accuse him of having to learn it when you are 100% factually incorrect.

No one — NO ONE — other than you has said that TPP is an exec agreement. You’re wrong.

And you look pretty foolish calling someone else a dunce when the ignorance is 100% on your part.

Anonymous Coward says:

Re: Re: Re:5 It sounds like someone needs to be fired

The USTR’s office has increasingly used executive agreements like the TPP to get around the requirement in Article II of the Constitution for Senate ratification of treaties, said Executive Director Margot Kaminski of Yale Law School’s Information Society Project.

http://www.law.berkeley.edu/13578.htm

Anonymous Coward says:

Re: Re: Re:5 It sounds like someone needs to be fired

No one — NO ONE — other than you has said that TPP is an exec agreement. You’re wrong.

Ummmm, well then there’s the Libertarian Review:

“Nobody really knows what?s in the TPP because no one has been briefed on the specifics of the treaty nor have relevant legislative bodies, like Congress, been provided with copies of the document.

The Constitution is very clear on the treaty ratification process. A treaty must be ratified by 2/3 of the Senate. But President Obama is deliberately bypassing the treaty ratification process by classifying treaties as ?Executive Agreements? that he alone has the power to negotiate and ratify.”

Mike Masnick (profile) says:

Re: Re: Re:6 It sounds like someone needs to be fired

“Nobody really knows what?s in the TPP because no one has been briefed on the specifics of the treaty nor have relevant legislative bodies, like Congress, been provided with copies of the document.

The Constitution is very clear on the treaty ratification process. A treaty must be ratified by 2/3 of the Senate. But President Obama is deliberately bypassing the treaty ratification process by classifying treaties as ?Executive Agreements? that he alone has the power to negotiate and ratify.”

They’re also wrong. They’re referring to ACTA and incorrectly think TPP has been called that. It has not. It’s a trade agreement and everyone who actually pays attention knows that.

Mike Masnick (profile) says:

Re: Re: Re:2 It sounds like someone needs to be fired

It’s an executive agreement, not subject to ratification. Wyden should get back on his side of the lake.

This is flat out incorrect. You are incorrectly thinking of ACTA, which the administration declared (possibly illegally) an exec agreement.

But this is about TPP — which is unequivocally an international treaty subject to ratification by the Senate. No one has said otherwise. The USTR admits it’s a treaty subject to ratification as does Congress.

You are simply wrong, or confused over which agreement we’re talking about.

Anonymous Coward says:

Re: Re: Re:3 It sounds like someone needs to be fired

I’ll look into it. I was relying on this:

The USTR’s office has increasingly used executive agreements like the TPP to get around the requirement in Article II of the Constitution for Senate ratification of treaties, said Executive Director Margot Kaminski of Yale Law School’s Information Society Project.

http://www.law.berkeley.edu/13578.htm

Cory of PC (profile) says:

I’m willing to guess that this is as transparent as the thickest fog on a really crummy day (the “so thick you can cut it with a knife” type of fog), or a white-out. However in this case, we have the MPAA given the tools to navigate this fog/white-out, while Congress is left to survive for themselves. Yes, blindly reaching out for something that could mean life-changing results, and Ron Kirk isn’t going to let the real people in charge of these kinds of decision making to them.

Hooray for corruption!! <== (sarcasm)

aeortiz (profile) says:

Re: Re:

I think you _should_ use the word corruption when talking about the RIAA and the MPAA. It’s the perfect word for it, and I hadn’t seen it. It seems obvious now.

They’re focused on infringement, while they’ve committed bribery and abuse of monopoly, and eroding democracy. They’re the ultimate hypocrites!

If you measure the impact of infringement vs the impact of their corruption on the common good, they are the worse offenders.

Keii (profile) says:

Sort of off-topic but still slightly related…
Has anyone been watching Continuum? I still can’t decide if that’s a legitimate show or corporate propaganda. On one hand the show is about fixing the world so it doesn’t fall into corporate hands, but on the other hand they completely demonize the anti-corporation group.
I’m not sure if I’m supposed to be rooting for the anti-corporation terrorists or the pro-corporation police chick.

bigpallooka (profile) says:

Re: Continuum

I get the feeling they are building up to a situation where someone in the corporation has sent back the anti-corporation terrorists in order to undo the future. That is why they are making it hard to read who are the real bad guys. On top of that in the real world one man’s terrorist is another man’s freedom fighter while one man’s corporate overlord is another man’s pay-packet. Her husband and his boss have something to do with it.

Just my read.

Ed C. says:

Re: Re:

No, the MPAA HAS to do it this way. You see, they don’t really have the money and clout they use to. They can’t let very many senators know what’s in it simply because they just can’t afford to buy that many off anymore. Not after all of the money they pissed away in “donations” to get SOPA through.

Anonymous Coward says:

What really needs to happen is congress get up on it’s high horse and demand the info be made available to them, without any sort of special consideration as the right of congress. Failure to do so would mean when the treaty came before it for ratification it would not do so.

The worse thing that could have happened to a trade treaty did in the case of ACTA and the US. Congress did not ratify the trade treaty at all. Only in the US was it called an agreement to dodge that event.

It is time to show the protectionists that deals in secret don’t get passed by the authority that holds the power to do so, when it is secret.

Now if we could just get the same thing to happen in government circles where corruption also runs rampant.

John says:

Re: Re:

Congress itself has the authority. In others words, it’s an orchestration. Wyden knows darn good and well his power. Congress is now, and has been for over a decade, playing the role of lost little puppy. Why? Because they no longer represent the people. They represent something else. Guess.

John (user link) says:

Re: Re: Re:

The only thing which will reverse these trends of corruption is a tipping-point majority of Americans cognizant and desiring a convention on the authority of the Constitution. We’ve been taught for decades to fear a convention as if everything would be up for grabs. This is untrue because a convention is simply a non-binding deliberative assembly–an open discussion. It’s convention or bust: http://www.foavc.org

Spointman (profile) says:

Re: Re: Re:

That’s an interesting question, though. Is the USTR part of the Congressional bureaucracy, or is it part of the White House/Executive Branch staff? If it’s Congressional, just fire the idiot and get on with it. If it’s White House, subpoena him, then cite him for Contempt of Congress if he refuses to comply — essentially the same thing they did with Eric Holder.

Anonymous Coward says:

Re: Re: Re:

Congress itself has the authority.

Mr Kirk is a presidential appointee confirmed by the Senate.

Unless Mr Kirk is impeached and convicted upon a charge of ?treason, bribery, or other high crimes and misdemeanors?, the Congress would have to resort to a public law defunding the office, or outright abolishing the office by law.

The Congress may not simply ask for Mr Kirk’s resignation.

Anonymous Coward says:

Re: Re:

who has the authority to remove the USTR from office? What would it take?

The Office of the United States Trade Representative is part of the Executive Office of the President. The United States Trade Representative is appointed by the President, and confirmed by the Senate.

If Mr Obama requested Mr Kirk’s resignation, then Mr Kirk would undoubtedly resign.

Beyond that, the House of Representatives has the power to impeach, and following impeachment, the Senate has the power to convict any civil officer of the United States for treason, bribery, or other high crimes and misdemeanors.

Anonymous Coward says:

Maybe Wyden should demand to attend Supreme Court deliberations on Obamacare. They’ve been totally opaque in their decision making process, with millions of lives hanging in the balance. But NO public input!!!!! In fact, we won’t find out a thing until it’s a done deal. What are those corrupt bastards hiding? I’ll bet they’re all being bribed by the insurance companies and ED prescription manufacturers. The hell with separation of the branches of government, Wyden is entitled to oversight because he’s Ron Wyden, (D-Google).

Rick Smith (profile) says:

Maybe the people should require congress pass a law that states something to the effect that all agreements (trade or executive) impose a mandatory 3 month waiting period from the time that the entire text is publicly released, until the it can be voted on (or signed if its executive).

It may not stop stuff but at least it would stop the total secrecy that some group operate with at the moment.

Anonymous Coward says:

So where did you go Masnick? I responded to your spleenful fulminations in posts 59-64 where you various claimed; “No one — NO ONE — other than you has said that TPP is an exec agreement. You’re wrong.” and “No one has argued TPP is an exec agreement other than clueless AC above. Everyone, including the USTR, admit that it’s a trade agreement subject to Senate ratification.”

I cited a number of sources, including Yale Law School’s Information Society Project, the Libertarian Review and others that characterize TPP as an executive agreement, not a treaty requiring 2/3’s ratification vote by the Senate. Yet you run and hide when it’s revealed that you are talking out your ass. In fact I really couldn’t find any authoritative source claiming that TPP required Senate 2/3’s ratification. Maybe it’s out there, but I didn’t see it.

So while you’re wiping the shit off of your face, how about throwing a citation or two our way so people might think you were ignorant and uninformed rather than simply a world-class liar.

Almost Anonymous (profile) says:

Re: Re:

Dude, you are such a stupid piece of shit, and frankly I’m sick of reading your drivel. Do you not realize that even the links that YOU provided are arguing that if the TPP really IS an executive agreement, that it is illegal? No, you just want everyone to admit that it’s an executive agreement, because that admission somehow furthers your keepers’ interests.

Ok, I’ll play your game. First, the USTR’s own website classifies TPP as a free trade agreement. Second, in the Frequently Asked Questions (FAQ) on the TPP, in the third question, the USTR makes reference to the TPP as a “21st century trade agreement”. Third, Ron Kirk himself is quoted as saying, “In the interim, you may be surprised to know that USTR has conducted the most, active outreach to all stakeholders relative to the TPP than in any FTA previously, including, the proposed disciplines on intellectual property.” TPP is a free trade agreement in Ron Kirk’s OWN WORDS. Nowhere on the USTR’s website and nowhere on Ron Kirk’s quotable record is the TPP referred to as an executive agreement.

In conclusion, the TPP falls under Congress’ authority as a free trade agreement in progress, and you, as always, are a liar.

bigpallooka (profile) says:

Re: Mr Impatient

It’s hilarious when people think they have some inalienable right to have their comments replied to instantly, expeditiously or at all. It’s even more laughable when they expect insults and demands will garner them a response. If it looks like an asshole, acts like an asshole, posts like an asshole then it’s a troll.

bigpallooka (profile) says:

Re: Re: Re:3 Mr Impatient

“I’ll plead guilty to being an asshole- at times. But not a troll. BTW, consistent with my earlier admission; you’ve misspelled “palooka”.”

This is why you are a troll. You imagine you have a clue and then “assume” which, contrary to the adage, only makes an ass out of you. There could be many reasons why someone would misspell a word, inability to spell (your natural presumption), irony, private joke, necessity, etc. The spelling is deliberate however it is irrelevant. Unlike you I only judge you by your actions and words here.

Anonymous Coward says:

Re: Re: Re:

So just to sum this up, you claim that:

1. Margot Kaminski, the Executive Director of Yale Law School’s Information Society Project was incorrect.

2. The Libertarian Review was incorrect.

3. You are correct.

So what happened to No one — NO ONE — other than you has said that TPP is an exec agreement.?

It seems like I have a lot of company. Perhaps more than you. It is not at all clear that it is a treaty requiring Senate ratification. In fact, the only citations that directly address the issue of whether it’s a treaty or executive agreement seem to indicate it’s the latter. For now, excuse me if I put my faith in reports from the Libertarian Review and Yale Law School.

Almost Anonymous (profile) says:

Re: Re: Re: Re:

So just to sum this up, you claim that:

1. Mike won’t respond to your disingenuous insinuation that the TPP free trade agreement is not a free trade agreement, but is instead an executive agreement.

2. You post a bunch of malarkey to support your position.

3. You are incorrect.

So why are you outright ignoring that I have completely destroyed your position? But hey, I’ll give you this much, you dug up two sources that mistakenly mischaracterized the TPP. Good job on that! But you plus those two are pretty unlikely to sway the rest of the world’s factual understanding of the situation.

Anonymous Coward says:

Re: Re: Re:2 Re:

Are you really so desperate to curry favor and suck up that you bring this weak shit?

1. Treaties are required to be ratified by 2/3 of the Senate. Executive Agreements need a simply majority of both Houses.

2. I posted quotes from the Yale Law School and Libertarian Review. Masnick quoted himself. An iota of objectivity would lead you to the source of said malarkey.

3. I am correct. As further evidence, go look up NAFTA, KORUS and the Colombia FTA. Contrary to Masnick’s claim the FTA’s are treaties requiring 2/3’s Senate vote for ratification- all of those agreements were voted on by both houses and required a simply majority. That called an E-x-e-c-u-t-i-v-e A-g-r-e-e-m-e-n-t.

It must be hard to see the real world with your head so far up Masnick’s ass. The only thing you destroyed is the perception that you are anything more than a truckling lickspittle who does nothing more than regurgitate manufactured facts as evidence in the hope of receiving a pat on the head from your master.

Anonymous Coward says:

Re: Re: Re:

Funny to watch you flopping around like a fish.

Apparently NAFTA (an FTA which alwaysrequires Senate ratification) didn’t require 2/3’s Senate ratification as a treaty either. From Wikipedia:

“the House of Representatives approved NAFTA on November 17, 1993, 234-200. The agreement’s supporters included 132 Republicans and 102 Democrats. NAFTA passed the Senate 61-38.”

So 61 votes isn’t 2/3’s is it? And why is the House voting? Hmmmm, so it must have been an executive agreement. Funny, treaty law expert Mike Masnick swears that all FTA’s are treaties requiring 2/3’s Senate ratification. I guess like the Libertarian Review the Yale Law School, Wikipedia has it wrong.

Lets turn our sites to KORUS; the Korea-US FTA. Again from Wikipedia: “The agreement was passed by the United States on October 12, 2011 with the Senate passing it 83-15[3] and the House 278-151.” That’s odd, why is the House voting?

And finally the Colombia FTA:

From colombiareports.com:

“The U.S. Senate approved the free trade agreement with Colombia, with 66 senators voting in favor of the bill and 33 against, meeting the simple majority required to pass the trade deal.”

“The U.S. House of Representatives approved the free trade agreement earlier Wednesday, voting 262 in favor and 167 against. Thirty-one favorable roll call votes came from Democratic representatives, despite the party’s general opposition to the FTA.”

So Professor your contention that FTA’s are always treaties requiring the mandated 2/3’s vote of the Senate is another in your series of lies and/or ignorant blathering. Revealing your latest lie cast serious doubt on your continued claim that TPP is not, in fact, an executive agreement.

Mike Masnick (profile) says:

Re: Re: Re: Re:

Wait, you’re now arguing that because those trade agreements required Congressional approval that I’m wrong? Earlier in this very thread you insisted that Congress should butt out and it had no role in TPP…

Hilarious.

Also, I never said trade agreements required 2/3 Senate approval. You’re making that up. I said they required Senate ratification — responding to your original, bogus, claim that Wyden as head of the trade subcommittee has no mandate over it.

And now you effectively admit you were wrong and I was right and you still use that to pretend you’re right and I’m wrong.

Seriously: you shouldn’t talk about shit you don’t understand.

I’m out on this thread.

Anonymous Coward says:

Re: Re: Re:2 Re:

I’m sorry, who said this:

But this is about TPP — which is unequivocally an international treaty subject to ratification by the Senate.

and this:

Because if you had done your research you would find out that the USTR classifies TPP as a “free trade agreement” subject to Senate ratification, not an executive agreement.

You clearly argued until the bitter end that TPP and other FTA’s were subject to Senate ratification. Not simple majority endorsements by both Houses. And as I stated earlier they (legislative branch) is entitled to approve or disapprove. Not inject themselves into the process. Nice try weaselboy.

Anonymous Coward says:

Why Certain Trade Agreements Are Approved as Congressional-Executive Agreements Rather Than as Treaties

CRS Report for Congress No. 97-896: ?Why Certain Trade Agreements Are Approved as Congressional-Executive Agreements Rather Than as Treaties? by Jeanne J. Grimmett, Legislative Attorney, Congressional Research Service, November 3, 2011

Summary

U.S. trade agreements such as the North American Free Trade Agreement (NAFTA), World Trade Organization agreements, and bilateral free trade agreements (FTAs) have been approved by majority vote of each house rather than by two-thirds vote of the Senate?that is, they have been treated as congressional-executive agreements rather than as treaties. The congressional-executive agreement has been the vehicle for implementing Congress?s long-standing policy of seeking trade benefits for the United States through reciprocal trade negotiations. In a succession of statutes, Congress has authorized the President to negotiate and enter into tariff and nontariff barrier (NTB) agreements for limited periods, while permitting NTB and free trade agreements negotiated under this authority to enter into force for the United States only if they are approved by both houses in a bill enacted into public law and other statutory conditions are met; implementing bills are also accorded expedited consideration under the scheme.

Congress most recently granted the President temporary trade negotiating authority utilizing this approach in the Bipartisan Trade Promotion Authority Act of 2002 (BTPAA), contained in Title XXI of the Trade Act of 2002, P.L. 107-210. Although the authority expired during the 110th Congress, agreements entered into before July 1, 2007, remained eligible for congressional consideration under the expedited procedure. The President had entered into free trade agreements with Colombia, Korea, and Panama before this date, each of which awaited congressional approval at the time. In October 2011, Congress approved the three pending agreements, making a total of 11 free trade agreements approved under the BTPAA process. In addition, the United States Trade Representative (USTR), on behalf of the President, notified the House and Senate in December 2009 by letter that the President intended to enter into negotiations aimed at a regional, Asia-Pacific trade agreement, known as the Trans-Pacific Partnership (TPP) Agreement. Notwithstanding the expiration of BTPAA authorities, the USTR has stated the Administration was observing the relevant procedures of the act with respect to notifying and consulting with Congress regarding these negotiations.

A federal appeals court held in 2001 that the issue of whether the NAFTA should have been approved as a treaty was a nonjusticiable political question (Made in the USA Found. v. United States, 242 F.3d 1300 (11th Cir. 2001)). The U.S. Supreme Court denied review in the case.

[…]

Anonymous Coward says:

Trade Promotion Authority (TPA) and the Role of Congress in Trade Policy

CRS Report for Congress RL33743: ?Trade Promotion Authority (TPA) and the Role of Congress in Trade Policy? by J. F. Hornbeck, Specialist in International Trade and Finance, and William H. Cooper, Specialist in International Trade and Finance, Congressional Research Service, April 7, 2011

????????A Brief History of TPA

TPA is the product of many years of debate, cooperation, and compromise between Congress and the Executive Branch. At its foundation lie the respective constitutional powers granted to Congress and the President, as well as the pragmatic realization that a certain cooperative flexibility is needed if the United States is to negotiate trade agreements credibly. The evolution of TPA to date shows, among other things, that the Congressional-Executive partnership on trade policymaking can be strained as it adjusts to evolving political and economic conditions and shifting priorities of the two Branches.

The U.S. Constitution and Foreign Trade

The U.S. Constitution assigns express authority over foreign trade to Congress. Article I, Section 8 gives Congress the power to ?regulate commerce with foreign nations …? and to ?… lay and collect taxes, duties, imposts, and excises….? In contrast, the Constitution assigns no specific responsibility for trade to the President. Under Article II, however, the President has exclusive authority to negotiate treaties and international agreements and exercises broad authority over the conduct of the nation?s foreign affairs. Both legislative and executive authorities come into play in the development and execution of U.S. trade agreements and trade policy

The Evolution of the Congressional-Executive Partnership

For roughly the first 150 years of the United States .?.?.?.

Two legislative events occurred in the 1930s that radically changed the shape and conduct of U.S. trade policy. The first was the ?Smoot-Hawley? Tariff Act of 1930 (P.L. 71-361), which set prohibitively high tariff rates in response to U.S. producers seeking protection during the height of the Great Depression. The tariffs led to retaliatory tariffs from the major U.S. trading partners, severely restricting trade, thus deepening and prolonging the effects of the depression.

The damaging effects of Smoot-Hawley prompted the second major trade legislative event in the 1930s. Congress, with the guidance and encouragement of Secretary of State Cordell Hull, himself a former Senator, developed and enacted the Reciprocal Trade Agreements Act of 1934 (RTAA; P.L. 73-316). The RTAA authorized the President to negotiate reciprocal agreements that reduced tariffs within pre-approved levels. The tariffs were applied on an MFN basis. Under the RTAA, Congress authorized the president to implement the new tariffs by proclamation without additional legislation. The RTAA is important for several reasons:

? For the first time, Congress expressly delegated to the President major trade negotiating authority. In so doing, it is argued, Congress aimed to lessen the protectionist pressure on itself.

? The Smoot-Hawley tariff was the last general tariff legislation passed by Congress. While still on the books, the Smoot-Hawley tariffs are only applied to imports from those few countries, namely Cuba and North Korea, not receiving MFN status, now called normal trade relations status (NTR) in U.S. trade laws.

? While delegating some authority, Congress in no way surrendered its trade authority. Congress subjected the tariff negotiating authority to periodic review.

?????????.?.?.?.

John says:

TPP Negotiations Have Been Transparent

You are right, Mike, the word “corrupt” does get thrown around too lightly, and it is here as well. First lets address the “read-and-replace” viewing conditions you mention. Whether Senator Wyden likes it or not, read-and-replace is very common amongst even declassified government documents, amongst classified ones it becomes a very real concern that elements of the text will be leaked negatively affecting the negotiation process. If you think that a member of Congress wouldn’t think to leak information regarding sensitive trade negotiations, I would point you to Rep. Darrell Issa (R-CA), Chairman of the House Oversight and Government Reform Committee (OGR) who leaked an entire chapter of the draft TPP text in May.

Additionally, Sen. Wyden’s concern for transparency has been fulfilled in the over 350 consultations that Ambassador Kirk has held with Congress on the issue (this is incidentally from the same hearing as you reference I believe). Sen. Wyden is making an issue where there isn’t one (again in the same hearing Ambassador Kirk points out that the process being used by the office of the USTR is the same as is used in every other trade negotiation) and is using the “transparency” non-issue to try to score political points.

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