Court Says USTR Can Continue To Keep The Public From Seeing The Trade Agreements They'll Be Subjected To

from the our-national-security-depends-on-it,-apparently dept

Towards the end of 2013, IP-Watch — along with the Yale Media Freedom and Access Center — filed a FOIA lawsuit against the USTR for its refusal to release its TPP draft documents. The USTR spent a year ignoring IP-Watch’s William New’s request before telling him the release of draft agreements would “harm national security.”

What trade agreements have to do with “national security” is anyone’s guess (especially since the USTR has cloaked the entire TPP proceedings in opacity), but the conclusion being drawn by this refusal is that the USTR feels the public has no right to know about trade agreements that affect the public.

A ruling has finally come down in the FOIA lawsuit and the court has granted the USTR the right to remain opaque.

As government negotiators dig into perhaps the final round of the Trans-Pacific Partnership trade negotiations this week in Atlanta, they may take comfort in knowing that nothing they are doing has to be shared with the public they represent until years after it is over. That’s because a federal district court in Manhattan decided this week, in a closely watched Freedom of Information Act case brought by Intellectual Property Watch, that draft texts of the trade deal can be kept secret.

The very small upside of this decision is that the court did find some of the USTR’s arguments for secrecy suspect. While it did side with the USTR’s arguments on the withheld draft agreements, it found the agency did not present credible justification for its use of some FOIA exemptions in regards to requested communications.

First and foremost, USTR’s declarations rely purely on conclusory statements from the agency itself, which simply proclaim that disclosure would complicate USTR’s future efforts. Even the sole piece of evidence meant to represent the views of actual private-sector actors comes from the agency’s declaration, and this too is vague and conclusory…

Critically, none of USTR’s explanations are document-specific, nor even category-specific. They are blanket assertions meant to cover all withholdings made under § 2155(g)(1) and Exemption 4…

[The] USTR’s bare assertions reporting secondhand concerns from the private sector constitute only weak evidence, at best.

The court also noted the USTR’s arguments in favor of withholding information under Exemption 4 were undercut by wording in the agency’s own policies.

In response to Plaintiffs’ argument that the withheld commercial or financial information is not “confidential” because it has already been shared among all ITAC members, USTR argues only that ITAC members are sworn to secrecy and cannot use information they receive via ITACs outside of those committees. But the obvious reply, absent from USTR’s briefs, is that USTR’s own Operations Manual states that information subject to Exemption 4 withholding will be kept from other ITAC members.

And if the USTR can’t keep its own secrecy arguments straight, there’s a good chance it has not performed the thorough examination of the contested documents it claimed it had.

As Plaintiffs argue, USTR’s failure to make this simple response raises questions about whether the agency has wrongly withheld information under Exemption 4 that has already been shared with other ITAC members. Finally, although the Court does not question USTR’s good faith in responding to this FOIA request, Plaintiffs are also correct to point out the troubling nature of USTR’s first round of responsive disclosures here, which apparently withheld 149 pages in full and redacted portions of 413 pages improperly, despite sworn declarations attesting to a line-by-line review of all the documents.

That being said, the court still won’t be ordering the USTR to release draft TPP documents. The only thing it has done is order the agency to present documents explaining its withholding of certain communications under two FOIA exemptions. The bulk of the trade agreements will remain hidden away from the public — this time with the court’s blessing and thanks to the administration’s advocacy on behalf of continued opacity.

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Comments on “Court Says USTR Can Continue To Keep The Public From Seeing The Trade Agreements They'll Be Subjected To”

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Wendy Cockcroft says:

Re: Re:

There’s a new strand of Far Right thought we should be looking at more closely: neo-reactionism. That’s where much of the rationale for secret FTAs comes from, the idea being that democracy isn’t democratic because people tend to vote the wrong way, or something. The idea is to set up a corporate government and abolish elections. Either this is where we’re heading (per Park MacDougald in The Awl) or I need to set up a Go Fund Me for tinfoil for my hat.

We’ve got to force these FTAs out into the open if the public interest is to be served, whether I’m right about the philosophy behind the rationale behind keeping these things secret or not.

tqk (profile) says:

Re: Re: Re:

We’ve got to force these FTAs out into the open if the public interest is to be served …

It doesn’t appear that anyone related to the opposition (gov’t) side has any interest in serving the public interest here.

Finally, although the Court does not question USTR’s good faith in responding to this FOIA request, Plaintiffs are also correct to point out the troubling nature of USTR’s first round of responsive disclosures here, which apparently withheld 149 pages in full and redacted portions of 413 pages improperly, despite sworn declarations attesting to a line-by-line review of all the documents.

To me, that just boils down to, “Fuck you. You don’t matter, now shut up.” “National Security?” Really? This’s broken gov’t. Your laws no longer protect the public interest. They’ve been spoken for by other forces outside your control and not even the courts are on your side.

Anonymous Coward says:

How can the contents of a TRADE agreement be secret? Trading isn’t carried out by governments, it’s carried out by gazillions of people and companies. How are they supposed to know the rules if they are secret?? Baffling. Unless it’s a worldwide job creation scheme for lawyers and customs authorities.

Anonymous Coward says:

A dictatorship, An autocracy or just plain old fascism I wonder.

This will not end in democracy for all it will end in absolute power and control in the hands of a few. Severely repressive police state for everyone.

Hope your all prepared to have your doors kicked in the middle of the night.

“we cannot tell you what laws we will pass for this because national security” Like that has never happened before without horrible consequences.

Anonymous Coward says:

Re: Re: Re:

Right because calling new trade laws a matter of national security so they cannot be revealed does not mean they won’t abuse this to pass other types of laws generally associated with heavy handed dictatorships.

You will have to pardon my cynism, but I have no faith in a corrupt administration to not use more laws to get what they want when they currently use anti terrorism laws to jail protesters and undesireables. Despite those laws deliberately being worded to not be used for anything else. But since they claim national security they cannot show people what evidence they have against them or even what they are charged with. They just arrest them and send them to a secret court with secret evidence. Then jail.

Anonymous Coward says:

what an absolute whitewash on behalf of USTR. the court should be ashamed of it’s ruling, considering the holes it put in the arguments. is there a chance an appeal might be done? is there time before we become legally screwed? considering we are the section that is being affected the most but has had the least input or even chance to consider what’s in the document, will it even matter?

Daydream says:

Illusory might makes right

Just philosophizing here…

Our society is built on the concept of Might Makes Right; whoever can bring to bear the most force, makes the rules that others obey. And oftentimes, the most force comes from numbers.
If a medieval bandit steals and murders, a mob will form to lynch him. If a company sells shoddy products, its customers will turn away until it improves. If a neo-nazi spews hatred, people will refuse to listen.

If all of society is built on this rule of the majority, what then is the purpose of laws?
I’d say, to create the illusion of majority power.

It’s all about information; if you’re told ‘everyone else is doing ABC’, you’ll probably do ABC, because you don’t want to be ostracized, or singled out for punishment, or (more positively) because many hands make light work.
Laws take advantage of that; even if ‘everyone else is doing ABC’ is false, if enough people believe it and start doing ABC, it becomes true.
Therefore, with the power to make laws, you can force or enforce the beliefs or behavior you want in society.

This can be a good thing; if certain rules of the road are created, people will avoid breaching those rules to avoid accidents with others who they think do obey them, with the result that the roads are safer.
But this can also be a bad thing; each of a slave-owner’s slaves might individually want to rebel and escape, but the fear that they’d be doing so alone without help from other slaves or society, and that alone they would be recaptured and punished, keeps any from escaping.

What does this all have to do with the TPP? It’s simple.
If the TPP is completed and passed without scrutiny, when it’s revealed a few years later, the people who passed it can say ‘Here is the law now. Obey it.’
And people and companies will obey the TPP, even if they don’t want to, because they’ll be led to believe that everyone else is obeying the TPP, so if they disobey they’ll be isolated and prosecuted.
But of course, everyone in the scenario is only obeying the rules of the TPP, because they believe that everyone else is obeying the TPP. And thusly the laws that hurt everyone (except for an entitled few) are enforced.

If the contents of the TPP are exposed before it can be passed into law, the illusion is breached.
Instead of ‘this is a law you must obey, everyone else is obeying it’, it becomes ‘this is a law that might exist in the future, you don’t need to obey it yet’.
And because of that, people can talk, they can say what they feel about the TPP before it passes, and most importantly, they can learn what everyone else is saying about the TPP.
And if everyone learns for sure that everyone else is against the TPP, then they will stand against the TPP, because they know everyone else is.
And in such a scenario, even if the TPP is ratified and laws passed, they won’t be followed, and the special interests behind the TPP won’t get their precious money.

TL:DR? If the TPP passes before being seen by the public, people will obey the laws no matter how dumb they are, because they think everyone else is obeying the law.
If the TPP is exposed, and people talk about it, then even if the laws are passed then people won’t obey, because they know everyone else is on their side.

Village Idiot (profile) says:

Re: Illusory might makes right

Responding just to the TL;DR…
The part that makes resistance nearly impossible, even with open discussion and group action, is that the laws will be acting on companies. Companies will have very little incentive to act contrary to the law and a lot to comply. People will not even have the choice not to comply.

Anonymous Coward says:

Re: Illusory might makes right

The public is already against the tpp, that’s why fast track was passed which also releaved elected officials from being held responsible for it. But as the other commenter mentioned, it affects businesses so individuals have few rights and most regulatory agencies don’t respond to public pressure. The only pressure possible was through Congress an they abandoned their role.

Uriel-238 (profile) says:

Re: Actually the US's attempt at democracy was a step away from "Might Makes Right"

Might Makes Right and the Divine Right of Kings were the foundations of the feudal system that defined the monarchies. That’s why lords were descendants of knights and warriors, and not industrialists.

The problem with Monarchies is that sooner or later you end up with a King Joffrey (or Caligula or William II, if you want real-world examples) who will lay to ruin all the trust the people had in the establishment.

The notion of Democracy was to curb the problem of plutocratic rule, and also to prevent the Joffreys from getting into office.

Well, Bush showed us to the degree to which it doesn’t work (though GoT nitpickers would point out Bush was more of a Tomlin to Cheney’s Cersei.)

Also the US democratic system presumed that people would know their own best interests and vote for them, and not vote defensively to keep out the worst evil. So it’s like all first-versions, buggy buggy buggy.

tqk (profile) says:

Re: Illusory might makes right

Our society is built on the concept of Might Makes Right …

Since when? I thought we were trying to be a nation of laws, not men (or specific individuals’ preferences in things that matter).

If I wanted to compete against lions on the African sveldt, I wouldn’t have bothered learning all the !@#$ I know. I thought we’d risen beyond all that “long in tooth and claw” stuff when we gained sentience. Boy, was I fooled.

MarcAnthony (profile) says:


There is only one reason for a government to keep trade secrets from its people, and that is that the populace won’t like what it sees. The fact that multiple branches of government are colluding to maintain a veil of secrecy is all the evidence needed to prove that they’re selling somebody down the river and that they’re actively denying those parties’ ability to stop it.

You can’t be represented in something about which you don’t know, and this flagrant denial of democractic participation mirrors—in degree—the events that sparked the American Revolution. There should be a no confidence vote against all government actors that participate in such shenanigans before civil unrest becomes a very real possibility.

Anonymous Coward says:

All the good laws will now benefit all nations.

All the bad laws will now “benefit” all nations.

I feel sorry for nations who dont already have the bad laws, as i get the feeling they might already have the majority of the good ones

hows that gonna turn out in this agreement

They call it TRADE, but it’ll be treated as LAW……on behalf of corporations and government…globally

How anyone can claim this thing has public say, when the public is not “allowed” to view it, is beyond me

Uriel-238 (profile) says:

What does God need with a starship?

National Security is already in danger of becoming a synonym for overclassification to cover for corruption and wrongdoing.

The only reason there has been cause to doubt is that so far all instances (most instances? The instances reported on by media?) have been related, at least as a satellite, to the War on Terror.

It’s one of the reasons that resentment has been rising about this stupid War on Terrror.

Personally, I can’t imagine how TPP relates to the War on Terror, but let us say that they have a good reason I’ve yet to fathom. Then that would probably be covered in a section, two at most. Certainly the big pharma sections, the corporate sovereignty sections, and the big media sections have nothing to do with the War on Terror. So National Security would justify opacity for those chapters that actually have to do with securing our borders. Maybe weapons development for DARPA or something. Why hasn’t the rest of the charter been made public, those parts that do not pertain to the actual security of our nation?

What the heck does a trade agreement, even a massive one, have to do with national security?

GEMont (profile) says:

Re: What does God need with a starship?

You’re obviously not a billionaire member of the Ownership Society, or you would realize that National Security refers to the ability of the rich to keep fleecing the sheep without the need to worry about retaliation from the sheep.

Thus, National Security necessitates spying on the daily activities of all the nation’s peasants to insure they are not conspiring together – planning some sort of rebellion, or boycott, or hording money away from the Tax Collectors.

National Security means rewriting the laws to insure that the peasants find no justice in the department of justice and thus, find no recourse in law against the ever increased fleecing.

National Security means creating nations where the rich are free to do as they please anywhere they please, and where the laws of the land have been re-designed to prevent the poor from interfering, while insuring that they foot the bill for all expenses.

National Security is the fine tuning of education and information and media to train the peasants that it is the greatest act of honor and goodness, to give up their lives to protect the rich, and to live in squalor so that the wealthy may live in palaces, for the wealthy are obviously the chosen of Gawd.

National Security is the process of capital value manipulation to insure that the poor must keep on working all day every day their whole lives, in order to just barely survive, and thus, continue to turn the wheels of commerce and industry and keep the dollars rolling into the hands of the wealthy.

National Security is the Security of the Very Important People of a Nation, secured by insuring that the rest of the population continue to do what the VIPs need them to do to maintain the continued growth of their off-shore accounts’ balances.

National Security has absolutely nothing whatsoever to do with securing the borders of the nation against intruders, because such criminal intruders are the source of the flour from which the bread of public fear is baked, which causes the public to beg for more police and less freedom and thus increases the real National Security.

Doncha see.

PS – “Re: What does God need with a starship?”

Even Gawd needs minions, and minions need the starship to follow Gawd around the universe, in order to be on hand when needed. Angels, Elohim, Anunnaki, devils, demons, dervishes, spirits, etc., not all can breathe vacuum and most need to eat and sleep. Its a big job travelling through the universe collecting all that gold from all those worshipping worlds, cuz gold is heavy ye know.

tqk (profile) says:

Re: Re: What does God need with a starship?

National Security is the Security of the Very Important People of a Nation …

The trick is learning not to care about their wishes or demands. Shrug it off, Atlas. 🙂 You don’t owe them anything, and you can likely get along fine without whatever they’re selling.

Its a big job travelling through the universe collecting all that gold from all those worshipping worlds …

Assuming Gawd exists, he/she/it can make their own. He/She/It shouldn’t need our help. If He/She/It does, then they’re not Gawd. Strike me down now Gawd if I’m mistaken (yet I’m still here typing).

GEMont (profile) says:

Re: Re: Re: What does God need with a starship?

(Rant Warning)

The trick is learning not to care about their wishes or demands.

That’s a little like trying to not care about the pack of wolves eyeballing you – while you’re leaning up against a tree, weaponless and with a broken leg. Sure you might be able to eventually zen up an indifference to their desires, but that won’t actually stop them from eating you alive.

I think this is a recurring cycle, made inevitable by the fact that we always design our civilizations around money and thus our social hierarchy ends up being formed directly according to the personal accumulation of wealth.

As a general rule, those with a little can gain more much easier than those with none, and those with a lot can gain more much easier than those with a little. Because the society worships wealth as the means to an end, we forgive those who accumulate the most, the transgressions they carried out to reach that goal, which in turn tends to create a system where only the most cunning and ruthless among us reach the top, through the most heinous of methods.

Eventually the wealthy grow in numbers until there are enough of them to pool their wealth for the purpose of bending the laws to their needs – and the only real needs of the rich are things that make them richer. Fascism is the method always chosen – as can be seen plainly today.

As the laws start to make it easier for them to rob everyone else, more people among the “lesser” classes become broke and thus more desperate and as sources of income dry up, are more and more willing to do whatever is necessary to survive – like helping the wealthy accomplish their goals in return for a little cash – as is the case today.

Eventually, the Haves Class devour the wealth of the “lesser” classes and turn the national resources into some form of transferable funds that they can horde in usury vaults, until they have divvied up the nation’s wealth completely – as will be seen tomorrow.

At that point the only place they can steal more wealth, to fulfill their addiction to wealth, is from each other, leading to the final stage of the dissolution of that society, as they pit the now entirely poor population against each other in an attempt to rob these last sources of wealth. In this way, the wealthy run a survival of the fittest contest among themselves leaving only the most vicious and cunning of the lot as the winners.

The wealthy don’t really care about the nation they are liquidating, because they have always been world travelers and own palaces in other lands and can always move to another nation when this one dies, gathering even more wealth as they repeat the whole process again in that new land.

We always assume War (where no obvious natural disaster is responsible) to be the cause of social dissolution of ancient cultures, because war is obviously taking place at the time of their demise.

But War is the tool of the Fascist, as can be seen today, which serves them as rationale for tighter control and for stricter laws that remove freedoms from the sheep, while promoting profiteering by the rich – for the war effort. It also allows them to eliminate competition by labeling such as the enemy, or as the enemy’s friend. It also quells dissent through Patriotic See and Tell training of the young.

This process will always take the form of fascism because it is always driven by the very people of a culture who have used that culture’s laws to their own advantage to become wealthy in the first place.

The problem with these wolves, is that they are incapable of satiation – its an addiction – and will do anything, up to and including mass murder, to get the results they need.

When your only love is money and power, people become commodities with price tags.

As for Gawd, I always figgered I’d just study the hell out of everything else I could gather information on, and if Gawd existed, he’d turn up eventually among the details in the data, since everything else is, as I suspected at the start, connected.

Nothing yet though, although the work of Zecharia Sitchin – he translated the world’s mother tongue and thus deciphered the oldest written documents that exist today – looks promising, but in a manner that absolutely nobody could possibly find comforting.

It does not contain a Happy Ending Clause and so could never be accepted as reality by humans and for the last 40 years has been universally poo-pooed by one and all. 🙂

tqk (profile) says:

Re: Re: Re:2 What does God need with a starship?

(Rant Warning)

I enjoy your rants.

The trick is learning not to care about their wishes or demands.”

That’s a little like trying to not care about the pack of wolves eyeballing you – while you’re leaning up against a tree, weaponless and with a broken leg.

I’m a fatalist. Everything that has ever lived, or will ever live, is going to die. It’s just the other side of the coin that is life. I like to hope I take at least a couple of those wolves with me before I get eaten. Make ’em work for it. 🙂 Microbes will get us in the end anyway. Don’t worry about the wolves. They’re just doing what wolves do.

Try “The Serene Invasion” by Eric Brown (from the library?). I’ve not finished reading it, but it seems an ideal SF solution to all our problems. Good read, but the editors could be better.

GEMont (profile) says:

Re: Re: Re:3 What does God need with a starship?

Try ‘The Serene Invasion’ by Eric Brown…

Thanks. I’ve been considering reading paper again. I’ll see if I can find a copy.

Gave it up a few dozen years back to read the phosphor dots online, since that was where the public was going to be thinking out loud.

Had great hopes for the internet and it was indeed one hell of a ride, but methinks it is today the greatest thorn in the side of those wolves I mentioned, and thus will soon be altered in a way that makes it about as socially valuable as Television, or doughnuts.

Agreed on the entropy thing.
Organics are terminal.

Its the things that organics build that keeps me kicking and snapping at the wolves.

We’re on the verge of a breakthrough to something never before seen on earth, and sadly the wolves are willing to set the world on fire to prevent it because it means they will no longer hold their traditional positions of power.

I’d like to do what I can to extinguish, or prevent that fire.

And for the record, I don’t worry much about the wolves, since they generally fear only those with wealth, or fame, and I have neither.

I try instead to estimate their next move and then state it publicly in the simple hope that exposure of their primary goals will cause them to consider rethinking their plans to avoid doing something that might prove me correct to those poor souls who are forced by their own nature to read my words. 🙂

I have no way of knowing whether the process fails or succeeds, but I am having way too much fun doing it to worry much about that either.

GEMont (profile) says:

Re: Re: Re:2 What does God need with a starship?


Eventually, the Haves Class devour the wealth of the “lesser” classes and turn the national resources into some form of transferable funds that they can horde in usury vaults, until they have divvied up the nation’s wealth completely – as will be seen tomorrow.

From TruthDig, today.


The 500 largest U.S. companies would owe an estimated $620 billion in U.S. taxes were it not for the more than $2.1 trillion in offshore cash that most of the firms hold in foreign tax havens, according to a report released this week.

The study, by Citizens for Tax Justice and the U.S. Public Interest Research Group Education Fund, found that almost three-quarters of the firms on the Fortune 500 list of biggest American companies by gross revenue operate tax haven subsidiaries in countries such as Bermuda, Ireland, Luxembourg and the Netherlands.

To obtain these figures, the study used the companies’ own financial filings with the Securities and Exchange Commission.

Reuters reports:

Technology firm Apple was holding $181.1 billion offshore, more than any other U.S. company, and would owe an estimated $59.2 billion in U.S. taxes if it tried to bring the money back to the United States from its three overseas tax havens, the study said.

The conglomerate General Electric has booked $119 billion offshore in 18 tax havens, software firm Microsoft is holding $108.3 billion in five tax haven subsidiaries and drug company Pfizer is holding $74 billion in 151 subsidiaries, the study said.

“At least 358 companies, nearly 72 percent of the Fortune 500, operate subsidiaries in tax haven jurisdictions as of the end of 2014,” the study said. “All told these 358 companies maintain at least 7,622 tax haven subsidiaries.”

Fortune 500 companies hold more than $2.1 trillion in accumulated profits offshore to avoid taxes, with just 30 of the firms accounting for $1.4 trillion of that amount, or 65 percent, the study found.

Fifty-seven of the companies disclosed that they would expect to pay a combined $184.4 billion in additional U.S. taxes if their profits were not held offshore. Their filings indicated they were paying about 6 percent in taxes overseas, compared to a 35 percent U.S. corporate tax rate, it said.

“Congress can and should take strong action to prevent corporations from using offshore tax havens, which in turn would restore basic fairness to the tax system, reduce the deficit and improve the functioning of markets,” the study concluded.


nuf sed

tqk (profile) says:


After the recent post about ads and adblock and “turn off ads” switch implementation, I tried it. I even got to see a very cute ad for a tiny drone (I want a hundred! :-).

Now, I post a reply, click submit, and watch it redraw the page sucking down 70% of both CPU cores threatening to crash my box *after the page has loaded!*

ABP is turned back on. I wouldn’t mind ads if they weren’t built stupidly! WTF is wrong with web monkeys these days?!? Don’t they see this !@#$ happening? Why?

My C$0.02.

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