t's all communities it goes back back back way back to the 20s in all kinds of of uh laws and regulations that permeated uh uh zoning so um we really are going to be looking at that much more closely in this round and the areas that we do rezone are going to have to meet some of those high resource areas yeah and I think the more offloaded areas would uh um uh they would see how low income and very low income actually does fit in very well as time goes by so thank you Supervisor Caput Mr. Chair Supervisor Friend yeah I appreciate Supervisor Caput's comments um Supervisor Caput has always been steadfast and making that case I think it is important um that the county actually point out that that's exactly what we've done in the last if you look at the last I just didn't want it to go unsaid because if you look at the last number of affordable very low income moderating well moderate income and below but even extremely low income those projects have occurred exactly in the census tracts that you're speaking of for example the Aptos Blue project uh extremely low income the sea ridge project uh low income the project uh the partnership with Dientes is actually not in a low income census track in my colleague's district and he's been supportive of so I just want to point out that what the county has built uh very low income projects in the unincorporated area in the last since you've been on the board have actually been in the exact exact census tracts that you're advocating for right now now moving forward uh with this work that we're doing with the housing element by the way in the sustainable uh plan which will be a pretty extensive discussion but it'll be even broader discussions about how to expand it beyond where it currently is but it's it's worth knowing that that the county's done exactly is what you're saying um uh and putting those those recent projects in those areas thank you Supervisor Friend all right if there are no other comments or questions from board members are there anyone in the public that wishes to comment on this item saying no one here in chambers is there anyone on zoom yes there is Tara your microphone is now available thank you so much this has been really uh a valuable opportunity for me to learn what's going on I have some knowledge of how the the housing element fits into the whole process and what I want to ask is excuse me when we do the community meetings can we also offer an explanation how the basic element is a foundation and then the planning policies building codes and zoning comes out of that I think that's where my neighbors in pleasure point get confused and so if if we could offer that because people are not only I'm not only concerned about density I'm concerned about how are we going to handle the water that I'm sorry that the sewer issues that we have in this neighborhood how are we going to water handle transportation since the bus system does not serve well so thank you so much those are all questions that I hope come up in the community meeting process thank you Tara Rafa your microphone is now available yes good afternoon I apologize if this was already addressed during the staff presentation I was late to this meeting so only got to catch the last few minutes but one thing that I'm concerned for Santa Cruz County with moving forward with adopting a compliant housing element by the statutory deadline is our need to complete the rezoning and the need to do that within the requirements of the law my understanding is that we'll have to probably have to complete an EIR for the housing element itself and we should start planning those environmental documents as soon as possible so that they can be ready to go by the time that we are ready to adopt something by the end of next year I realize it's sort of a chicken and egg problem where we don't necessarily know exactly how many housing units or the density or whatever that we have to be planning for and we haven't even begun to look at sites for our site inventory but these are really parallel tracks that we'll need to be working on so that we do have all of the environmental work sort of happening in parallel as we're working through the community engagement process on identifying sites and moving forward with the programs and policies I helped the City of Santa Cruz move forward with some recommendations that they're looking at as part of their housing element policies and I encourage the county to look at some of the ideas that the City of Santa Cruz has already committed to investigating as part of their update process thank you very much thank you Rafa we have no more speakers then I'll return it to the Board for action Mr. Chair I just one comment and then I'd like to make a motion I think the county has 600 parcels I from A to Z I guess in size do we have any idea of how much how many of these are potentially buildable or is it going to be in this process I'm sure we're going to do that somehow but is that going to be part of an I really do appreciate it I think the public should know and following up and supervisor friends comments that we're we're moving in this direction the best way we can I think and I applaud the planning department and public works and everybody else for getting this to a good place as good as can be and it's going to be a bigger challenge now but do we, is there any way to identify where those parcels that the county owns and I think it's hundreds of them might be buildable maybe that'll be come up or could come up in a discussion with this well the motion that I would like to make that I just move the recommended actions with additional direction as was mentioned by Chair Koenig that the staff release an RFP request for proposal for a public engagement process is both representative and as mentioned by chair Koenig that's I think it's spelled out as you said I think there's a hundred thousand dollars for that kind of a purpose and I think it's absolutely essential that we get a broad spread of the community represented in coming to some requests or some proposals from that so I'd like to make that motion that we do we do release an RFP for public engagement process that is both representative and deliberative I think is the best way to put it. All second. Any further discussion? I mean and I'll just verify both there are I'm aware a number of consultants out there that can help at this point with this type of a public engagement process so for example I know Eugene Orgen created a citizen review panel on housing and recently 2020-2021 the city of Petaluma recently had a 36 person citizen advisory panel on the future of its fairgrounds so some of the organizations the organization that worked with them on that was Healthy Democracy there's also the Center for Deliberative Democracy at Stanford which has done this on the scale and even the country and then the Sortition Foundation so I do think that if we put out this type of RFP there's enough of an ecosystem out there that we would get a robust response. Any further discussion? Seeing none. Clerk roll call vote please. Supervisor Friend. Aye. Coonerty. Aye. Caput. Aye. McPherson. Aye. And Koenig. Aye. Item passes as amended. Thank you. All right. Thank you again. Assistant Director Hansen. We'll now proceed with item nine to consider first quarter report for fiscal year 2022-23 on cannabis licensing office operations and direct staff to return on or before January 31st 2023 with the second quarter report for fiscal year 22-23 as outlined in the memorandum of the County Administrative Officer and for a report on this item we have our cannabis licensing office manager, Sam Laforte and Deputy CAO, Melody Serino. Go ahead. Good afternoon Board. Thank you. One more. In the first quarter we've continued to see some contraction in our local market and additional 11 cannabis businesses closed bringing the total from last year to 31. This quarter we have not received any pre-applications. On the compliance front we continue to find minor paperwork issues associated with site diagram changes primarily which contributed to the three corrective actions you see in the report. No compliance issues resulted in citations or violations for our licensed operators. On the enforcement front in the previous report staff identified a thriving illicit market as part of the problem with the statewide market and while this remains true our local illicit market has decreased significantly. We believe this decrease in the illicit market is largely due to our CCU teams proactive enforcement work and the economics of the illicit industry have changed. Essentially prices have decreased so much that profit margins are shrinking. The directives of the Board and the funding for the CLO and CCU teams have continually shown progress in decreasing human health and safety environmental degradation as well as fire risks related to the illicit market. On the fiscal front we are 25% through the year we've received 15% of our budgeted revenues and spent 14% of our budgeted revenues which has resulted in a net general fund cost to the county of $78,500 to date. With regard to taxes we have received 16.6% total budgeted cannabis business taxes for the year which is approximately 324,000 below projections for the first quarter. Retail CBT is down approximately a third and non-retail CBT is down approximately 83% from the same time last year. With regard to the previous board motion revenue enhancement options staff have included five options which were included in the October 19th 2021 board letter for your discussion today. These considerations were developed in response to the previous board direction to present options to help support the local cannabis industry and help increase the tax base. Market volatility has resulted in significant decreases in the wholesale cost of goods since these options were developed and staff does have some concerns that this volatility may not produce some of the desired revenue results. Some options may result in decreased short-term revenues and may lead to increased neighborhood concerns while others may result in small revenue increases and impact other economic sectors principally tourism. If the board does wish to pursue any of these options particularly the retail related options staff would suggest that we seek community input via a series of meetings in each supervisory district before the end of the calendar year and present the recommendations based on those results in January. Staff is available to answer any questions you may have on the quarterly report and the options to support the legal industry at this time. Thank you, Mr. Laforte. Are there comments or questions from board members? Yes, Mr. Sheriff, I may begin. Please. Thank you, Mr. Laforte. It is clear that we are dealing with a pretty volatile market. I agree with the general staff recommendation which is the staff recommendations are just in essence maintained status quo. To me it is clear that the market is shaping up and in particular on the cultivation side I don't think that it is at its current scale anyway that it is going to continue to be a viable element of the industry locally. We have seen as you know the reporting you have reported on a decrease in the number of people seeking licenses, a decrease in the number of people trying to convert agricultural parcels into cannabis. But as a result of that we have high land costs, high labor costs and an over saturated local market. I just don't think that it is really in the county's best interest to be doing anything to artificially prop up the industry especially in this changing landscape right now. As the point that you had noted the greatest conflict points in this board recently dealt with this on an appeal component deals with neighbors and cultivation sites with the decrease in cannabis business tax associated with in particular on the cultivation side and some of the other non-retail operations it seems that it would be in our best interest to not make any regulatory or tax related changes or for that matter to even do this the community based outreach that you're speaking of because I just don't think that it makes sense for us to do that. We don't do this for any other industry by the way I mean we've got a lot of regulated industries within our world we have special tax industries including say like transit occupancy tax when things start to go out of business or challenges occur we don't talk about an entire re-regulatory landscape in order to address issues for them so I don't understand why the board would even consider doing anything to improve the regulatory landscape or tax related structure on this. The last point that I think is important to note because I know that we have one relatively new board member since the time that this board explored the tax cycle on this we had a pretty extensive study that was presented to the board HDL I can't remember exactly the name of the consultants that had provided it those numbers never panned out for the county I mean it's clear to me that any sort of changes in taxes or regulation won't ever make those numbers pan out those estimates at the time had said that we would get somewhere between three and twenty times the tax revenue that the county has actually received and as a result of it it just strikes me that the industry is shaking out in a way that retail will probably continue to be successful within Santa Cruz County but cultivation and some of the other non-retail elements will not and I think that our structure shouldn't be how do we chase it by changing regulations and taxes in order to prop up elements that just aren't going to be successful in our area because of external market forces and things that are inherent to Santa Cruz County like land costs and labor costs that mean that it won't really work out anyway I appreciate the report I supported the additional direction that came from the chair at the time just because I know that it was an issue of interest to him but I'm not supportive of doing anything different than we're currently doing especially at this kind of I'm just supportive of the staff recommendation right now which is an accepted file and moving forward as is but thank you for the report thank you for the opportunity to share my thoughts Mr. Chair Thank you Supervisor Friend I'm just seeing another member of the board who wishes to speak on this I mean I'll just you know say a couple things which is you know first I think that you know Santa Cruz like it or not Cannabis is a part of the Santa Cruz brand and you know I think that we'll see that as part of the continued retail sales one way or another but I think that there is still an opportunity both for manufacturers distributors and cultivators in our community and you know during this period of fluctuation you know rather than necessarily to see it as you know propping up a dying industry I think it's how do we stabilize stabilize the industry and also provide an opportunity to improve things going forward I mean I see even with the proposal number 3 to increase canopy limits in specific areas I mean we as Supervisor Friend said we know that the biggest point of conflict here is between cultivators and residents and so in designing a policy there where we allowed consolidation of growing operations it seems to me that that would actually decrease conflicts and especially if we made that based on you know basically a good record by those cultivators of not having issues of conflict with the surrounding area that that could be a win-win you know furthermore use of established greenhouses on CA parcels I mean I've seen firsthand how many in our agricultural industry who have these greenhouses a lot of them left over and cut flower business have seen cannabis as a way to both maintain existing operations including a variety of different farm products whether it's cut flowers and diversifying with cannabis with another crop as well as to get more revenue to reinvest in those businesses and fixing up those facilities furthermore maintaining cannabis within a greenhouse is really the most controlled possible area you can imagine because there are is the opportunity just to scrub out or control light and pretty much contain the entire operation within a single building so I think that ultimately those both those policies can be win-win and actually reduce the overall impact on the community and suggestions four and five allowing retail consumption sort of onsite or farm tours I mean for that pretty much gets at the heart of the biggest two industries in our county which are both tourism and agriculture within the sustainability update that's coming forward I mean there's a number of policies that aim to basically build on the agro tourism industry within our community I think that makes sense it is a potential growth opportunity and it's a potential growth opportunity for the cannabis industry as well so I think that there's some good ideas here I look forward to hearing what my colleagues and the public have to say as well but ultimately I think that some of these proposals are an opportunity for win-win solutions Mr. Chair I think you raise an interesting point so I just want to flesh it out a little bit on a policy debate side here I mean at the end of the day there's an over cultivation I mean the market is collapsing in part because there's an oversaturation of the actual product the need right so the idea of expanding cultivation size it'd be like saying people are buying less cars so we should have 10 car dealerships consolidated into one massive car dealership because that's going to somehow improve the industry it doesn't improve anything it just means living next to that massive car dealerships going to particularly suck for whatever residents are there there's an oversupply right now right I don't think that we need to create regulations that make it easier to consolidate or make more cultivation if there's too much stock people are getting out of the cultivation business altogether I mean the other elements anyway the other elements are separate on the non on the retail side but I just think that it's just such a hypervolatile industry and I feel like that what we're doing is chasing regulations to continue to I mean it's starting to flesh out I mean that the strengths are within the resident with or within the retail side the strengths may be although I think we're going to have a policy about this in November about elements the retail like delivery and that kind of stuff but it may not be in our county in particular with that with the underlying labor and land costs for example in the cultivation or even manufacturing or distributing elements of it and therefore maybe those aren't elements that our county actually props up I mean that's that's how it is I mean there's there's there are things that are more expensive for us to do than there are in Mendocino or the Central Valley and everybody has competitive advantages and so I don't see us changing a regulatory framework in order to do it so I think that the underlying economics of it are such that the things that you're talking about actually don't help I mean they actually would create additional issues and we're seeing that play out in how the taxes are playing out right now if I may respond to it I mean number one concern I've heard from cultivators is that right now they're trying to manage operations across many small sites which adds cost and time and you know also means that ten neighborhoods are affected instead of one and so you know I think that there's as I said an opportunity for a win-win year in that less overall neighborhoods could be affected and the individual cultivators could see their costs of doing business go down we've already consolidated these into very specific I mean for example the greenhouse component that you have is already an element of our code I mean no new existing structures for example within the coastal zone the purpose of that was to use underutilized greenhouses specifically called out that we had underused or nonused this is before you got on the board but greenhouses for that exact purpose so I don't I don't know that there's really any modifications that need to be made there but when you look at the sales numbers of the retail side when you look at how much is clearly being grown locally and therefore we've had local growers acknowledge it's almost 90% that they're exporting out I just don't know that doing these consolidations are really going to be beneficial I mean I legitimately don't so I mean to me also since we don't know it's like one of the things I've learned in dealing with this issue for the last 10 years is that when we continually deregulate in order to chase an emerging trend it's very hard to re-regulate if we find a problem and we've found problems with issues and so to me we just need to stop where we have what we have figure out how the industry shakes out and its strengths and weaknesses locally and then if there's actually things that need to be done to improve where there's actual things that we need to improve then we would do it but I think that what we did is we let a genie out of a bottle pretty early on by being the first county in the state to create a regulatory framework on cultivation by the way there was a green rush unquestionably into our area since that time we've been trying to figure out the best ways to deal with it I mean do we put it in CA where do we we get out of the hills I mean we're dealing with this conflict in the San Lorenzo Valley in this item right now so having changing the regulatory framework now and chasing another episodic component I think is just bad public policy and that's why and from the case of history since I've been through this so many times I think that that's why I'm advocating for just maintaining as is and you know that I'm not in I'm in a rare agreement with the the cannabis licensing office with some of their policy suggestions I mean I'm in agreement with the recommendation that right now is probably not going to pan out of exactly what you're seeking for so just to maintain the status quo all right thank you any other supervisor wish to add comments or questions yes comment or supervisor cabinet sure yes we're not deciding on any options right now right is that correct there were five options have been presented the board could choose to advance any of them or not anyway this will have a big impact some of the changes on South County I think we're okay where we are right now personally and if this is going to be to look at this real close if we put it off till January the third I wouldn't even have to worry about it let somebody else handle it okay so I don't know yeah thank you supervisor cabinet supervisor Kennedy sure thank you chair and thank you to the CLA office for your report I think it's just helpful to understand what's going on in the ever-changing industry my basic ideas a couple fold one is I think it's not a bad idea to always iterate and look at adjustments to policies I also think it's recognizing that the work this board did got us into a place with a stable cultivation and licensing structure that it was not a given and we still see other counties struggling to this day trying to figure out how to approach this issue and so a lot of good work was done to get us this point and then adjustments can be made to supervisor cap its point I think we're going to have two new board members and those two new people running right now have very different approaches to cannabis and licensing and so I think it's appropriate to wait and let those new folks engage and reset policy and so I think that this will be a discussion along with housing and many other issues that this board will have in the next year or two thank you supervisor Kennedy I I've seen three things that have been very good coming out of when we first started going down the cultivation and the sales of marijuana cannabis and that is cutting down on the illicit cultivation and we've cleaned up some of our environment in the county which is a good thing and I'm for the medicinal use of cannabis so those are three positives but there are negative parts that I don't want to get into right now all right thank you supervisor cap it no other comments I agree with the comments have been made I just would move the recommended actions I'll come back to you excuse me okay I'm just getting in a hurry Mr. Laforti did you want to respond to any comments made okay then I'll open to public comment now hi my name is Aziz I'm an owner and manager at DNA Organics we are in Watsonville we have five farms which is partially because of this canopy cap kind of deal that we've experienced we don't restrict raspberries we don't restrict anything else we are an agricultural crop and as the industry evolves around us and around this county it will continue to become that and the reason which we are having trouble competing would say Santa Barbara or Lake County is because of over regulation it's not that we're pulling it's not that we're pulling regulations back that are necessary respectfully Zach friend I don't think you recognize what's happening in the overarching industry a lot of businesses have gone out of business across the state we're facing clearance sales this is just part of a new industry it's a struggling industry it's helping a child this industry is a child and if you stifle it you are going to stifle its development and it will never evolve to what it could be and I think it's very important that we recognize that for example in your district we paid out $1.2 million in payroll this year an additional $1.1 million in seasonal payroll mostly focused going to district 2 and 4 residents so these are things that are under threat and we need to protect them so rather than continue to stifle the industry please listen to Mr. Laforte and take into consideration what he's talking about because it's very important to a lot of people here thank you thank you Aziz hi Pamela I've had the pleasure of working on this issue for a long time now first off thank you for not giving up on this completely I think all of the recommendations are really needed and some of them are actually exciting and what we would need to have the sort of industry that we all talked about together for years and years and years I think that the second part of the just the report says what we've been saying for years is that this system we built as much as it was built on good intentions and different people's political perspectives and trying to take a count of all of those it created dysfunction that only the largest most unlucky entities were able to slither through and we have excluded the mass parts of this county who were legal participants in the medical cannabis era from ever participating in this new experiment we've also spent millions and millions of dollars often unnecessarily ruining people's lives with enforcement and keeping on the same problems associated with prohibition even the racial discrepancies of how our post-medical legalization has been the enforcement's been applied when we were having this discussion in 2016 now numbers have came out in 2020 that you're five times more likely as a black person to get caught in this like this enforcement paradigm that we've set up and we didn't leave room for the core of what we were talking about here which is keep it small, keep it local, the equity the compassion, the legacy all of that and just to answer I don't want to spend too much time on Zach Fred's perspective because he doesn't vote for any policy involving cannabis but like we have been propping you up with the child's fund and all that and like we've been paying taxes and like just get the boot off the neck for a little while so thank you thank you Mr. Malo good afternoon I'm Rob Morgan I'm one of the licensees in the county as well we have three different parcels in your district Mr. Caput part of that also as Aziz mentioned is because of the canopy limits per parcel based on the parcel size we've been a compliant operator we've never had any issues in the county increasing the canopy limits is something that our business needs to continue to thrive I think it's a more nuanced issue than what Mr. Friend said as far as the reason the cannabis industry is where it's at you can't have just successful retail without successful cultivation there will be no retail without cultivation I'm in support of the increased canopy limits within the CA zone also the increase of the retail within those zones at those license parcels I think it's something that our industry needs and you know the retail in Santa Cruz County is also pretty small in comparison to other counties so yeah I want to thank Sam too for all the work that he's done with his staff and hopefully when we have the new board members we can push this further along as we have thanks thank you Mr. Morgan is anyone else in chambers is there anyone on zoom here is caller ending in 777 your microphone is now available hi my name is Greg Fernandez I'm a licensee here we have 648,000 square feet of green house that is approved for cultivation I'm calling in to in support of all of the recommendations that Mr. Laforty's office has proffered here today and I just want to not try to pick a fight or anything but supervisor friend just does not know what he's talking about I just got a push back on virtually everything that he said our land costs are very expensive up here but us operators that are already here those are sunk that it's done we do need other methods of income and profit basically and the retail onsite retail definitely would help us along those lines our labor costs are pretty much consistent throughout the state so it's not really you know our farm labor is just not that much more here than it is pretty much in any other part of the state with the exception of maybe Lake County or you know but you know we're we're stuck in this situation really because of the price of this commodity it has just come down and it's the lowest it's ever been ever and there's a lot more there's a speaker that used the word the term nuance there is a lot to this and it's definitely not anything that could be tackled in a meeting let alone a two minute period here so I don't believe that any of these actions would be propping up our industry as you said and another caller said we're here we're paying taxes we're paying payroll we paid millions of dollars in payroll this year and we're very excited about the future and we also have to remember somebody did say that hey we're the first municipality to legalize medical use of cannabis layback in this Darren your microphone is now available hey everybody it's Darren's story sorry I couldn't make it in today I agree with Greg and everybody else we're not looking at oversupply Zach what we're looking at is a bad policy that's actually stimulated the black market if you look at California all the studies are shown the California black market is between two and three times larger than it was prior to prop 64 so anything that allows us to become more efficient allows us to compete with the black market so really what you're going to do is you're not getting rid of cannabis operators you're going to push them into the illicit market so we're not looking to prop up we're looking to stimulate legal operators that are doing it right one of the reasons Santa Cruz County has seen a reduction in illicit operators is because Sam's done a lot of work to help us become more efficient and help us compete and we can put them out of business you're not going to put them out of business with enforcement you can't tax them into oblivion because they're not paying taxes so you really have to help us out and that's that's really you know anything that can help us become more efficient we don't need to become bigger no one's looking to add canopy they're just looking to consolidate it so they're not running around all over the county putting emissions into the air workers are on the road unnecessary traffic etc so whatever you guys can do to help us become more efficient that's greatly appreciated Zach if you ever really have questions about how we're operating and how things are becoming more efficient you know you can reach out to us I don't think the industry is dying I think it's becoming more mature and we're able to deliver it to the consumer for a lower price so it is going to grow you just have to help us compete against the black market which is growing faster than us thank you thank you mr. story chair we have no more speakers all right then I'll turn it to the board for deliberation and action I'll second we have a motion by supervisor McPherson a second by supervisor friend as exactly what exactly are we voting on you recommended actions today are simply to accept and file the fiscal year 2022 2023 first quarter report on cannabis licensing office operations and to to direct staff to return on before January 31st 2023 with the second quarter report for fiscal year 2223 okay so the option we're not voting on the option no we're not the motion is not include any of the options not on but is that correct just a few recommendations that's what I'm looking at here you know I'll just add you know I'm sympathetic to the fact Greg that you said we're supervisor cap it that you know by January of this coming year during the report you'll no longer be sitting here you won't have to deal with this issue and I mean I think rightfully so given that cannabis does impact the fourth district significantly it makes sense that if we were to consider any changes for the industry that it would be done by your successor in the fourth district yeah Mr. Jeff I just may ask the question when we first started on the cannabis licensing office reports because we were we had like a high level of insecurity and instability within the industry and you actually use the word Mr. Laforte is stable in your report we were getting quarterly reports and I'm just not sure if that if we need to continue to do that I mean do you do you feel that quarterly reports are still needed or should we move this because it feels like we have these reports we have these discussions they may not need to happen every couple months should we go into a twice a year situation I mean we don't have quarterly reports on and so I'm just asking now that the industry stabilizing whether it makes sense as part of this recommended action to actually direct you to not have quarterly reports but have them like bi-yearly or something that effect Melody Serino deputy CAO we would certainly welcome only coming to the board twice a year instead of four times a year the data is not changing a lot quarterly to quarterly quarter to quarter and really all that you're seeing is you know kind of the incremental notices of violations that may get filed on the enforcement side I think really that it's the fiscal piece that you're always more interested in in terms of what's happening with the CBT with the cannabis business licensing tax but I think coming twice a year is probably sufficient at this point okay well Supervisor McPherson if you'd be open to an amendment to that motion I mean we currently have them coming back in January for the second quarterly report but just change it to a twice a yearly report starting at the date well I don't know Miss Serino what date would you like to start that process would you want to start it in January and at that point just then move to a twice a year what would be easiest for you I think that would make sense because then then we could stay on track with being present before budgeting so that you would have some information around budget you want to have a report in January is that right and then in June yeah so it would just be a modification of the second direction to just come back and then to change it to a twice yearly as opposed to quarterly report if you're comfortable with that Supervisor McPherson yeah that'd be fine okay alright so the revised motion is to adopt the recommended actions and then after the January 31st 23 report to change to a twice a year report alright any further discussion seeing none roll call though please Supervisor Friend Aye Coonerty Aye Caput No McPherson Aye and Koenig Aye The item passes as amended Thank you I have to walk right 4 to 1 4 to 1 excuse me 4 to 1 alright thank you that brings us to the end of our regular agenda meeting of the Santa Cruz County Board of Supervisors will be November 15th 2022 still 22 yeah we'll now move into closed session are there any reportable actions No alright thank you


The episode 12 of CN Live, the Espionage Act and Julian Assange. I'm Joe Laurier, the editor-in-chief of Consortium News. WikiLeaks this week said that a judgment from the High Court in London in the US appeal seeking to overturn an order not to extradite the imprisoned WikiLeaks publisher Julian Assange is imminent. The court has several options. It can rule in favor of the US or of Assange. It can send the case back to magistrates court where the two judges could fail to agree and a new panel would re-hear the appeal. On this show, we will look at the various possible outcomes of the High Court's decision, which could come at any time. If Assange is ultimately sent to the United States, he will face a charge of conspiracy to commit computer intrusion, as well as 17 counts under the 1917 US Espionage Act. Though several US administrations in the past, FDR in 1942, Nixon in 1971 and Obama in 2011, had all come close to punishing journalists for revealing defense information, they all pulled back until Assange. They were restrained because of a conflict with the First Amendment, which prohibits Congress from passing any law, including the Espionage Act that abridges press freedom. Until that legal conflict is resolved, the legal conflict in the Espionage Act, until that is overturned, parts of the Espionage Act, sorry, let me start again, until the legal conflict is resolved in court, resulting in parts of the Espionage Act being found unconstitutional, the language of the Act threatening press freedom remains. Boasted by 1950 amendments to the Act, Donald Trump administration crossed the red line to arrest a journalist for publishing defense information for the first time. A 1961 amendment made it possible to indict a non-US citizen acting outside US territory. The Trump administration's first indictment of a publisher has opened an alarming precedent for the future of journalism.  Assange's arrest and indictment comes within a long line of government repression of a free press, first by the British against American colonists, and then by the US government, which based the Espionage Act on the British Official Secrets Act. The history of these two acts show that they have borrowed from each other, and now Britain is considering a new Official Secrets Act that would bring it even more in line with the Espionage Act, with rumors that the UK may rename their Act after the American one. Many informed people, including Pentagon Papers whistleblower Dan Ellsberg says that the US does not have an Official Secrets Act because of the First Amendment. While it's true that Britain used the Official Secrets Act to charge journalists for possessing and disseminating classified material, for instance reporters and editors at the Sunday Telegraph in 1971, and two reporters at Time Out in 1978, while the US had never done that, all of that changed with the indictment of Assange. The Espionage Act, especially since the 1950 McCarran Act amendments, has always carried language making it possible to charge journalists with possession and dissemination of defense information. The most significant 1950 change to the Espionage Act was to remove intent and make mere retention of defense information illegal. While FDR Nixon and Obama came close to using the Act for this purpose, it never happened until Trump indicted Assange. I'm going to argue today that that in effect made the Espionage Act equal with the Official Secrets Act. So I've laid out a lot of detailed information here and we're going to get into it now with our two guests. They will first discuss the High Court's options and then the parallel history of the Espionage and Official Secrets Act. First guest is James Goodell, who was the New York Times Council during the Pentagon Papers case. James has been called, quote, the father of reporters' privilege. He disagreed with the Times' outside counsel not to publish the papers and was part of convincing the Times, if not he did it on his own. I want to ask James that. He convinced the Times to publish the Pentagon Papers and he was vindicated by the Supreme Court decision in the case against prior restraint. We're also joined by consortium news legal analyst Alexander McCourst, who worked 12 years at the Royal Courts of Justice in London, which houses the High Court. He is also the editor of the Doran and the show is produced by Kathy Bogan. So Alexander and James, welcome to CN Live. Pleasure. Alexander, let me start with you. We're waiting for the decision on the High Court. As I said, it could come today or next week, but the weak league says imminent. Now, Lord Chief Justice Ian Burnett and Lord Justice Timothy Holroyd, the two judges on the court, they must essentially decide if Assange is too ill and too prone to suicide to be extradited or whether they believe U.S. promises that Assange will not be put into extreme isolation in the U.S. prison. From what you know of the case, Alexander, in what way could the High Court side with the United States? Well, they could side with the United States by basically rejecting the decision of the lower court judge, District Judge Baritza, that Julian Assange would be at a serious risk if he were extradited to the United States. They could decide that the assurances that the United States is giving are valid assurances that Baritza should have given the United States an opportunity to listen to those assurances or to make those assurances to the court. And they could also, they would have to, I think, find a way of getting around the evidence, the expert evidence of the expert who said that Assange would be at risk if he went to the United States. And there's an attempt now by the attorneys of the United States to try to challenge that expert to suggest that Baritza placed undue reliance upon what he said. So they would have to do that. Now, to my mind, that would be unorthodox. I think that going behind the judge's assessment of the expert would be extremely unusual indeed, unusual to the point of being practically, well, not perhaps unprecedented, but really remarkable. And one would only expect that to happen if a judge were clearly and unambiguously wrong to rely on that expert. And I don't see how that could be the case. And on the assurances, well, the US authorities have never given a coherent explanation of why those assurances weren't given previously. And besides, there's obviously a big question about whether those assurances carry any weight anyway. So I would have thought if you follow conventional, orthodox legal approach, these arguments should not be entertained by the appeal court. However, the appeal court in its wisdom has decided to hear those arguments. It's decided to grant permission to the United States to present those sorts of arguments going to some extent against an earlier decision of a high court judge who felt that at least some of those arguments specifically on the expert were not really entertainable. The high court decided nonetheless to hear those arguments. Given that it's decided to hear those arguments, bad arguments as they are, that does make me concerned that the very fact that they've decided to hear those arguments, given the high politics involved in this case, might suggest that they're prepared to say that those assurances should be heeded and perhaps that the expert should not have been relied on. Unconventional, though I would have thought that is. I'm going to just add one very quick comment. The fact that the judgment is imminent suggests that the decision has been made rapidly. It suggests to me that the two judges are in agreement. So we will probably have a clear decision one way or the other, which we'll have to wait and see what it is. So the possibility of a split cause, it seems to me, is looking less likely. Right. And of course, the lawyers on both sides will get this decision before it's posted publicly, correct? Exactly. Do they have an opportunity to challenge any factual things, not to judge? Yes, they do. Yes, they do. So if there's obvious errors of fact or numerous errors of fact, they can sift through the judgment, they can point it out to the judges and invite the judges to correct those judgments. What they can't do in that form is challenge the overall decision and they can't challenge the judgment and points of law. But if the judges have got particular facts wrong, then they can ask the court to correct those facts and normally the court would agree. Of course, if the court has got facts fundamentally wrong, well, then it might be that they'll go away and come back and think about it again. But I've never known a situation like that to happen. Usually, it's corrections on factual points of detail. Right. Okay. A couple more questions for you before we go to James on this. You pointed out to me, I think privately, that you were surprised, maybe pleasantly surprised, that Assange's lawyers were able to bring up this Yahoo! report that the CIA had seriously considered assassinating him or poisoning Julian Assange in the Ecuador embassy. What do you think happened there and what significance could this possibly play in their decision? Right. I mean, I should say it's the only thing. It's the one thing about this that makes me moderately hopeful. I want to stress very moderately hopeful because, first of all, it's a newspaper story and, you know, it's not always easy to persuade the court, the high court to accept a newspaper story. It's not been confirmed by anybody within the United States government. And, nonetheless, the court decided to hear that. And, of course, they seem to have decided to accept that evidence despite the fact that it is, after all, evidence that's happened since the judge made a ruling and an appeal is supposed to be looking at what the judge's reasons for making that decision were, not at looking at evidence that comes to light after the judge made that decision. So the fact that the high court decided to hear this evidence, I think it's interesting and I think it's moderately hopeful because logically, if the high court decides to hear that evidence and really takes that evidence on board, then they will have to say to themselves, well, this is a person, this is an individual, Julian Assange, who agencies of the United States government, the CIA, were seriously considering kidnapping.  If that's really the case, given all the other things that have happened in the case, the fact that he was under round the clock surveillance and we all know about, you know, the role that this private company played in all of that, the Spanish company, well, can you really extradite someone to a country whose law enforcement and intelligence agencies acted in that way against him? And again, if you're applying conventional orthodox extradition law, the short answer is you can't. Not only should you not do so, you can't do so. Anyway, it was very interesting that the court decided to hear that evidence and that the prosecution, the lawyers who were representing the United States, didn't seem to be saying anything in response to it. So quite what's going to happen about all of that, I'm not sure. But it does make me moderately hopeful. But as was actually said during the hearing itself by one of the defense lawyers, nothing that's happened in this case has been normal. And it's not normal in some ways that this appeal in this way should be heard at all. And it's not necessarily, we can't take assurance that because they heard this evidence, they get to act on it in any form. James Lewis, the American, the prosecutor for the U.S., during the September 2020 hearing, efficient hearing called, talk about assassination of the Sange palpable nonsense. He said absolutely nothing after the court heard about the Yahu allegations. I want to also point out that there's a second medical expert out of Michael Professor Koppelman, was the one that is being challenged, even though he's such an expert that James Lewis himself called on him once to urgently to help him in an extradition case. So, but there's also Professor Dealey, who is mentioned in the Baraita judgment that she also relied on. He never seems to get mentioned. He also has strongly supported the view that a Sange is too ill to be extradited, too suicidal. Last question, Felizanum, before I move on to James. Does it matter that Vanessa Baraita, who was the district judge who issued the order not to extradite a Sange, does it matter that she's no longer in the magistrates court, that she's been promoted to the circuit court in case, in the event that the high court judges decide to send this case back to the magistrates court with the instructions to follow the law? A, would she have gotten it automatically if she was still on the bench? Yeah. Or does it matter that she's not there anymore? Well, I mean, again, conventionally, it would have gone back to the same judge. But of course, she might not be there. I mean, it's not impossible to ask a judge who's been promoted to come back. Really? To finish. It's happened. I've seen it happen. To come back and complete a case, especially a case like this. I'm not, by the way, saying that is what's going to happen. As I said, nothing, nothing has been normal. But I would have thought that the fact that she's not there would make them perhaps a little uneasy about starting with another judge back in the same court. And it might influence them. And, you know, they've got very wide discretion about what they should do. It might influence them to say to themselves, well, logically, the original lower court judge is no longer in that particular lower court. It's asking and expecting all too much to have to come back. We can't realistically ask somebody else to just step in and take over and, you know, listen to all of these arguments that can be done. But logically, perhaps we shouldn't be doing all of that. So perhaps the best way, the most proper way, the most sensible way, would be for us to deal with this whole situation ourselves. We have discretion to do that. We can make the decisions. And again, the fact that we've got a rapid judgment, a judgment that, as I said, looks like it's been decided quickly, a judgment would suggest strongly that the two judges are in agreement. That leans me to think that we're going to have a decisive and final judgment, at least as far as the high court is concerned. Right. And can I just say, from Assange's point of view, I think that would be a good thing, better to have it done now, even if it's against him, because then he can move on to the Supreme Court than to have a whole new set of litigation in the, in the Westminster Magistrate School that could prolong this thing for, well, who knows how many moments and extend this agony for him even further. Yeah, I would have thought the Americas would be happy that Barrett is no longer there. So another judge could give a different judgment. James, let me go on to you. Thank you for waiting. What everything Alexander's been saying here, particularly this point that there's nothing normal in this case, leads one to believe that this is not so much of a legal matter, but a political one. How do you see the case in those terms? Oh, I think all these cases have never been that many, but Pentagon Papers case and this one are not normal cases. And if you try to think it through normally or litigate it the way you would professionally, you're probably making a mistake. The cases are political. And if you make judgments that are purely legal and not political, you may, you may not win. That happened in our case, the political, the Pentagon Papers case. I'll come back to that when you find it convenient. But we're now talking about the appeal. And I think that anyone who has read the transcript, which I have, who has thought through the issues as we all have, will come to the conclusion that there's a perfectly reasonable basis for Judge Barrichet's opinion and that the challenges to it that which have been previously outlined are highly technical and in my view, not substantive. So therefore, in the ordinary course, because of the care that the judge took, the high standing of the witnesses that testified that Assange is not capable of being extradited, he should win. There's just a million ways he should win. But going back to your point, this is not a normal case. If you think from the very beginning, now this case began, let's say, the Swedish part of the case, you can see from the beginning that anytime Assange gets near a court or gets near the police, frankly, there's no other way to say it. He gets screwed. And that has been brought to our attention through this new book by Niels Meltzer, which he calls The Trial of Julian Assange. And I'm not going to bore you with the book, but just to say one thing about it. It has a very careful explanation of what happened to Assange in Sweden.  That was all made up by the prosecuting officials in Sweden. And it's typical of what's happened in this case. And therefore, I think that anytime that Assange gets before a judicial organization, defining that any way you want, he has got a huge mountain to climb. And if I may say so as a yank, I think that it is very hard for anyone who is maintaining a First Amendment defense to win anything in a British court. Excuse me for saying so to my colleague here on this broadcast. But I don't really think the Brits understand the First Amendment. They understand the Official Secrets Act. And here they have this guy without question has broken the Official Secrets Act and probably has no protection under the Human Rights Act. And he's trying to say, well, I have First Amendment defenses, don't send somebody back. That's the gravamen of his case. That's going to fall on deaf ears. And it slips over into the issue of Assange's sanity, which is to say, no matter what issue the court is thinking about, and they're thinking about non First Amendment issues presently about the decision, they're going to issue shortly. My humble opinion, deep down in the guts of this of these two justices, they're very unhappy with what Assange has done, because what Assange has done is illegal in the UK. And so I just don't think they're going to give him a break. I hope I'm wrong. But I think that, as has been previously explained, Assange has perfectly good arguments with respect to each part of the appeal that has been challenged. And with respect to each such issue, there are small technicalities that the court can seize on. And what I'm worried about is looking at what's happened to Assange thus far, that the court will seize upon these technicalities. Let me just talk about one of them, which I find really stupid, which involves the, what do we say, the patrimony of Mr. Assange, the fact that Mr. Assange fathered two children when he was in jail. One of the objections made by the government is that the court was not told, taught, told immediately at the time that the principal expert testified that Assange had two children. Although the court was told later, the fact that they wasn't told earlier impunes the credibility of the expert who said that Assange was not capable of being extradited.  The court, no, what difference does it make when the court do it?  And they shouldn't be relied on. But get back to your point. This is not a normal case. And I would not be surprised if the, if the two judges in this case, in fact, picked up some small technicality and again, screwed us on. Alexander, do you want to respond to this? No, allegation that British courts and lawyers don't understand the first amendment? Well, it is self-evidently true in terms of this case, because if you remember at the lower court before Baritza, we had a situation where the British prosecutors were arguing first amendment, amendment points with the defences experts and clearly were out of their depth and unable to understand the first amendment points that the defendants experts were making. It was actually one of the, one of the strangest and most awkward parts of the whole case, of the whole trial. And then, of course, we got the final judgment from Baritza, in which she basically steamrolled over all the first amendment arguments, all the all the free speech arguments that Assange's defense team was making, the essentially substantive points. She didn't accept any, any one of them. It was entirely based on health issues. So, you know, in a sense, that particular battle has already been lost. The really substantive battle in legal terms, all we are now arguing about is these health issues and these, these questions of assurances, these technical points that James was talking about. Now, do the judges however feel that Assange is guilty of crimes in Britain under British law? Well, we don't have first amendment rights in Britain. We never have done. We've always had a much more restrictive approach to media rights than we have than in the United States. And we've got no constitutional protection for them for the media. And there's all those long 18th century cases, the arguments in the John Wilkes case, no British lawyer takes any note of those, any note of those at all today. So the only thing that you have is a public interest argument. It's now reinforced to some extent by arguments that derive from the article 10 of the of the European Convention on Human Rights, which to be very clear is nothing like a strong or as all embracing or as explicit or as clear as the first amendment. So we don't have that tradition. We have historically had a tradition of, you know, the public interest defense. But we're going to come to this discussion shortly because of course, that public interest defense, which has existed in Britain has been practically eroded out of existence. And now we're seeing an even more sustained attack against it from coming from the government with the new iterations of the well, espionage act, if you like, which is to come. And when, of course, the last official secrets that the new one that was introduced by Margaret Thatcher's government in the 1980s, when that when that came up to be tested in the House of Lords, which is of course the judge, the court that we had in those days, prior to the establishment of the British Supreme Court, it was very interesting to see that these House of Lords, the judges there simply ignored the entire public interest defense entirely. As far as they were concerned, it essentially no longer existed anymore. So I'm afraid I have to agree with James. I don't think that it's not just a case of British lawyers, British judges, no longer considering not able to understand First Amendment defences that, which arguably they never have done, but those protections the journalists used to have in Britain have been steadily and relentlessly eroded away. And the judges, the judiciary don't seem to be pushing back on that at all. They're not creating law, judge-based law, using, say, the Article 10 of the Human Rights Act to push back on that to any degree. And this particular case that we're looking at the moment, the case of Julian Assange, it's not being argued about those issues at all. Anyway, on the law, on the issues in this appeal, he should win. He should win on the points about the expert. He should win on the points about the assurances. He should win about the risk to his life, the fact that the US government was prepared to do extreme things against him. But given the political reality of this case, and it is a totally political case, one can't unfortunately make any assumption that the judges will follow the law on these points. James, do you want to respond or I have a question for you? Well, I just would add on not really a response to what was just said with respect to the First Amendment. We do recognize that this case is now on the capacity of Julian Assange to withstand extradition and in incarceration, in solitary confinement. That's what the case is about right now. I couldn't agree more. However, left behind, we must recognize is Judge Barrett's decision. Because that's about the only thing that we have left to look at. And when you read Judge Barrett's decision, as was noted a moment ago, she steamrollers the First Amendment, which is to say she doesn't apply it. Now, I found in my travels through the First Amendment that most lawyers don't understand how to apply the First Amendment. And let me just say it's a very simple, simple concept, but it led to the death of the firm that I once worked for, but they didn't know how to do it either, which is you take something like the espionage hacks or official secrets act, if there were one in the United States, you look at the language, you talked about the language, Joe, when you open up the show. Now, when you look at the language of the espionage act, you come through it. It doesn't say anything about the First Amendment. Hey, but guess what? No statute or any law passed by anybody ever says anything about the First Amendment. So what you've got to do, if you're a publishing type, which is important to be in addition to being a publishing lawyer, is you look at the language and you say, okay, it says you can't do this, you can't do that, you can't do this. And then you apply a First Amendment test. The one that is popularly known is clear and present danger. And you could say, well, would this language that says you can't retain documents, that's the one you made at the opening of the show, does that, no, you add when you read it, does that constitute a clear and present danger? You've got to add those words. Now, in fact, clear and present danger has been overruled, as you point out in your excellent series on the history of the espionage act. So you wouldn't use that choice of words, but you would have to be a smart First Amendment type to know what words you would add.  She's like, the lawyers I used to work with, they didn't know how to do it. It's like most lawyers, they don't know how to do it, most Congress, she didn't know how to add the magic language of the First Amendment. And that is not just First Amendment, but it's the test that the First Amendment requires to her analysis. So therefore, when she goes through describing what Assange did, she says that he, oh, well, we can't look at Assange, he's not really a journalist. And if he is a journalist, he's got to be a responsible journalist. Well, that's very interesting, your honor, but it's got nothing to do with the First Amendment. You don't have to be responsible and protected under the First Amendment. And so she did what most lawyers do, which is she ignored the First Amendment. So we've got to realize that the concept of the First Amendment is not easy for judges and to go back where we started, particularly for the two judges that are going to decide this case. Well, James, just what I want to ask you, on the issue of prior restraint, there's no doubt there's a huge difference in Britain and in the US. The example of the spy catcher case in the Thatcher administration, they were able to block the publication beforehand of a book written by a former MI6 agent who was published in Australia. People know the story. That, of course, could not and did not happen in the US in the case that you were intimately involved in the Pentagon Papers. That's what the Supreme Court ruled. There could be no prior restraint in Britain, there can be. Assange's case is not a prior restraint case. Because the Supreme Court in the Pentagon Papers case said, oh, you can't stop publication before, but after publication of secrets, you can prosecute. They made that very clear. And Nixon impaled a grand jury in Boston. I want to ask you later about that, if you can give us some more insights into that. But he impaled a grand jury in Boston. And we saw the Obama administration tried to indict Assange in 2011. And Franklin Roosevelt tried to indict Chicago Tribune for publishing details of a Japanese, an attack by the Japanese that they may have been learned about it from the Tribune. They all failed. But you can prosecute for possession and dissemination of defense information, even if you're a journalist. There's no carve out in the espionage act. So until Assange was indicted in that regard, you could say that the First Amendment was stopping this from happening. But the language of the espionage act allows it. Now that he has, apart from prior restraint, I don't see any difference between the official secret act and the espionage act when it comes to possession and dissemination by a journalist. What do you say to that, James? Am I wrong? Well, I think that the language of the two is similar. But as I said, it doesn't make any difference what the language of the espionage act says. Because when you look at any particular aspect of it, any particular section, you have to then say to yourself, but does it meet the First Amendment? And the people who are drafting the language, don't put that in. You have to put it in as a constitutional lawyer. So you're absolutely right to say there is nothing that stops the prosecution of a journalist under the espionage act. But that's not the same as saying that the prosecution will be successful. The government can go ahead and prosecute. But it has to meet whatever task, let's say, because it's easy to understand, clear and present danger. It's got to prove that if you retain those documents, or if you publish them as espionage has, that you have caused huge danger to the United States by such publication. You have to add that to the statute, even though the statute doesn't say it. So the case that the government has against espionage is very simple in a sense. It says Assange has published the names of sources that gave the United States information. That is really, as far as the espionage act is concerned, that's all the case amounts to. You've got to show that your publication did something to these journalists. Now, I mean sources. Now, what is it that happened to these sources? Well, in fact, nothing happened to any of the sources that Assange used in his publication. So therefore, let's go back. You mean the informants, not the sources? Well, they call them sources, but it's a better word. Thank you. The informants, you go back and say, well, now if the publication was so dangerous, what happened to these informants? Nothing happened to them. So how can the government, possibly when it's case has got to show that they were put in danger, that they felt threatened, that they were killed. The government has not been able to show one tiny scratch to any of these informants and had had a chance to do this in an earlier case in which Manning was being prosecuted. He's the leaker, which the leaker was being prosecuted and it did not come up with one witness. So unless you can prove harm from the actions you take that are prohibited by the Espionage Act, unless you harm somebody during that, you lose because the First Amendment says you've got to show harm. Isn't it true that the I think the McCarran Act and then the 1989 Official Secrets Act after the Balgrano Affair and the Ponting case that intent was removed and public interest defense then was removed. So it becomes a pure case of whether you broke the law or not, not whether your motive is unimportant anymore. Isn't that what happened? That's I think there's an expert who, well I'll do the, I'll do the Espionage Act part, there's an expert who's written a really great piece on this, his name is Joe Lauria, in which he proved to me that the intent part of the statute, which we just talked about was taken out, which means it's easier for the government to prove its case if in fact the court thinks it's constitutional to remove intent. There's an issue, an issue there, but nonetheless the government's got to show harm, intent or no intent. So that's my answer on the Espionage Act. I will not speak on the Official Secrets Act. And in the Official Secrets Act it's exactly the same intent has essentially gone and 1989 act is of course the key and of course there was the judgement of the House of Lords, which I talked about the Shayla case in which the House of Lords again were presented with a public interest defence and intention defence by Shayla's lawyers. Shayla was an MI5 official who leaked classified information. He felt that it was in the public interest. The House of Lords could have pushed back on all sorts of grounds against the 1989 act. They made it absolutely clear in that case that public interest defence was essentially gone and the intention was no longer an issue. The big question for me is that what you see, there's two things that you see. Firstly, it's quite clear that the Official Secrets legislation in Britain and the Evolving Espionage Act legislation in the United States, they feed off each other. The authorities in each country look at what the other is doing and they copy, dare I say it, the worst practices of the other. So you have the British Empire in the 1889 act they decide that they're going to start putting restrictions on leaking of information or dissemination of information. They have a public interest defence there and then steadily the British move towards taking that public interest defence away. The Americans in 1917 they look at the British acts, they start copying them. Now the British are copying the American acts. In every single case the wording gets transported across the Atlantic from one country to the other and the trend is ever more restrictive. The Americans still have the First Amendment, the British don't. The question is, and this is for me as a person who works in Britain, the practical question is not whether the First Amendment exists in the United States, of course it does. Will the courts in the United States, when they are presented with a prosecution, will they still recognise the First Amendment in the way that James says? Will they still feel themselves bound by this or will they take the trend of the legislation and try to work their way around it? And now that's a question I can't answer. That's more for James as an expert in this to say, but in Britain at least we don't have that defence and the courts, the House of Lords and the Shaler case, the entire drift of judicial decision making is towards accepting the fact that this process is becoming ever more restrictive and it's clear that the Article 10 of the Human Rights Act and of the European Convention for Human Rights, that isn't a defence at all. James, you want to respond? Yeah, well the question is, it's very nice for an American lawyer, as this is myself to say, the courts have to apply the First Amendment because that's what the law requires and then ask yourself, well as a practical matter are they going to do it? So the answer goes like this I would say, number one, they are going to use the First Amendment because they have to, but the point nonetheless is well taken and this is point number two, that even though the courts are required to apply the First Amendment, they may not apply the First Amendment in a way that would protect Julian Assange. I gave you an example of how to get Julian Assange, which is to show that, I want to use the word sources again, but that's not the right word, have said about their activities and I said, well let's use clear and present danger. Well it's not the right test, theoretically, but the government has the ability to decide which test it's going to propose and the courts have a final ability to decide which one they're going to apply. So I can say they've got to protect them under the First Amendment, but the courts will say, well I've got the First Amendment, but it doesn't protect them. So the final word is the courts, they may go through the method of using the First Amendment, but it may be in the end, the way they use it is in a fashion as though they didn't use it at all, because that's the way the courts are. Well, so you maintain, even though it's strict liability with the Espionage Act, the government still has to prove that harm was done? Yes, they got to prove that the First Amendment was met. Now as I've just said, the big argument that takes place between the government and First Amendment lawyers is there are many tests under the First Amendment, clear and present danger no longer is the test, and I won't bore you with all the ones that have taken its place, but there are choices and that'll be a big fight, well I want this one, I want that one, I want this one, then the court and the court decides, but the court has to decide that some First Amendment test applies, whether they apply it the way we want it to apply it, as I said. Well, let me ask you about two things. One, there's some legislation and a bill floating around and Congress will probably never even go to a committee or get out of it, and that was put forward, I think by Ro Khanna and Tulsi Gabbard when she was in there, that would amend the Espionage Act to carve out an exceptional circumstance for journalists, that they could not, because right now there's no distinction between any person that has unauthorized possession and dissemination, the journalists are not, we can be charged as we've seen indeed Assange has. So I don't know if you know about that James, and then the other issue is, if he were indicted to the U.S., and let's say he lost, and his lawyers go to the Supreme Court, could they, how far could they get to actually finally challenge what is a clear conflict in the Espionage Act against the First Amendment? Well, they will, okay, so there's two questions, I'll take the second one first. Okay, so now we have the idea that there's a case, and the case goes to the Supreme Court, and the question is, will the court try to rationalize the First Amendment with what the Espionage Act says? And my answer is, of course they will, but I also said maybe they won't, maybe they will, and maybe they will, is probably the answer to your question. I will note on the negative side of all this, is that the President's Supreme Court, which is a conservative court, is very good on the First Amendment, but that doesn't mean they're going to be very good on national security cases involving the First Amendment. So to answer your question, yes, the court will try to resolve the conflict. Let's hope they resolve it in our fashion, in our way, but they may not. As to the first question, as to the proposed legislation, I do remember looking at it, and I remember the carve out, I didn't have any problem with it, and I also believe that there was a public interest defense in the Grover Act. So your question with respect to the first question is, there's a lot of action in Congress of people trying to amend the Espionage Act, and you just cited one example, and so where does that take us? Right now it takes us nowhere, because unless you get a really liberal Congress, nothing's going to happen. I don't think to the Espionage Act. Yeah, it's not easy to amend it. It has been, obviously, a couple of times in 1950, in that 61 amendment that expanded the territoriality of it. In fact, six times as Congressman Poff from, I think he's from Virginia, he tried to get this vote and he finally got the change. Because of that case in Poland, we're an American diplomat at the embassy in Warsaw, was caught in bed by the Polish security services, and he was blackmailed, and he said, if you don't give us these documents, this is going in the newspapers, and he gave the documents by leaving U.S. territory, and they couldn't get them on the Espionage Act because it was not on U.S. territory, and that isn't Snare Julian Assange, that case, because otherwise they could not get Assange. He said, not an American, he didn't do any of this on U.S. soil, and yet a lot of people really get annoyed about that. It is, I guess, annoying that universality, but it is an empire, after all, and they do feel like they have rights all over the world, and they will rewrite their laws in order to be able to do that. Alexandre, I just wanted to move on if we can to a little bit of the history of this because you alluded to this, Alexandre, that it's become more restrictive. You go back from the very beginning, there was, before 1889, there was no Espionage law in the U.S. or Britain. It didn't exist. The only thing they can get somebody on was stealing government property, or entering a military base illegally, but the idea of possessing a classified document, and then there's this really funny case of Charles Marvin, who was worked in the foreign office, he was a clerk. He also didn't make a lot of money, so he freelanced articles on the side, and he actually memorized a secret British Russian treaty, and then wrote an article based on it. They couldn't get him on anything because he didn't physically steal the document. People think that was the genesis of the official Secrets Act of 1889. It may have contributed to, so they could actually was geared, and not only towards classic Espionage, but to a journalist as well. And then it did have, and you pointed this out to me when I was doing that piece, that it clearly mentions public interest defense in there, and that that was because parliament at that time was worried that this could prevent the disclosure of corruption and illegality by the government. So there was a more progressive parliament, maybe, or a mindset back in 1889 that we've got today. Absolutely. But of course, this is the tension that existed in Britain in the 19th century. There was a kind of liberal tradition in Britain, which coexisted together at the same time with a sort of imperialist tradition. And one always has to understand this tension.  I mean, I mentioned the Wilkes case. I mean, the Wilkes case is much misunderstood. And I mean, I don't want to go into all that history. But the point was that was this tradition in Britain, there was a liberal country that we weren't like the Europeans who were, you know, continentals, their censorship, that all of those sorts of things. We were even very slow in Britain in setting up a police, for example. But eventually, we are an empire. We are a monarchy. We are in competition with other great powers. And of course, we also have, and this is particularly important in 1889. And I'm sure that was part of the background, might not have been discussed exactly, but I'm sure it was there. There are problems in Ireland. This, you know, our closest colony. There's disturbances there. There's, you know, the Phenian movement is growing. So we are going to start protecting our secrets. And you have this tension. And the point about what happens is that when that boundary is crossed, when we first decide in Britain to pass an official secrets act, which we do in 1889, putting to one side, if you like, our libertarian tradition, we nonetheless close and encompass within it a public interest defense. But the drift ever after, from that moment on, is to make the process ever more restrictive. So it becomes more restrictive. It becomes more all-encompassing. It becomes tougher. The penalties become tougher. It starts extending to the media. And this has been a steady progressive trend ever since that line was crossed way back in the 1880s. That's absolutely fascinating that the liberal tradition is eroded now in current days. But James, the US also had, I guess you could say, a liberal tradition. And I want to turn to the Pentagon Papers case, of course, which you play such a big part in. When you read the judgments of some of these justices, I mean, they sound like a defensive Julian Assange. They sound like they're Assange supporters. This is 1970 or 50 years ago. And for example, I mean, Hugo Black, right, one of the judges in the Supreme Court case, he challenged this national security mantra, you know, that's still used today. He has sub-diffuse to justify repression. He wrote, the word security is a broad vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our republic. He said in the First Amendment, and I love this wonderful line, in the First Amendment, the founding fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The government's power to censor the press was abolished, so the press would remain forever free to censor the government. The press was protected so that it could bear the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government, and paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. I mean, the language is just extraordinary, but the what it says is even more. As I say, this could be a defense of Julian Assange today. Well, how far have we sunk, James, when you hear those words? What does it make you think about what's happening now? Well, I guess there's two ways, two places to look for your answer. And of course, the first place we want to look is the Supreme Court. There's no question in my mind if the Assange case were to be brought before the Supreme Court that existed in the Pentagon Papers case, Assange would win for the reasons you said. There's some you would lose. I vote here and there, but you still have five. You'd have five to win. The question, however, is not how you would have done then, but how you're going to do now. And we actually don't know how the present court thinks about national security. We think we know because we know they're conservative. But as I said earlier, nonetheless, the court is good on the First Amendment. But I did when I'd said that say, but we don't know how they're going to be on national security cases. So we just don't know the answer to the question as applied to the Supreme Court. I think you asked a broader question, however, which is, wouldn't you think after the Pentagon Papers case that generally speaking, the world of opinion would see the ridiculous nature of the classification system, the overclassification of everything in sight, including the menu for the Army Navy game in 1947. But I think the broader import of your question is if you ask sort of generally people of the Vox populate what they think of national security, they're not going to give you the answer that Justice Black did. And they still think that anything that has been decided by the United States as damaging national security is for the government to decide and not for the people to decide. And so it is fair to say that one approaches with some caution what a we think the Supreme Court is going to do with a case like Assange and the be public opinion, which we haven't talked about much in this much in this program, particularly as is affected by media opinion, which has been absolutely horrendous and terrible with respect to Assange. So I think that is the broader ramifications of the answer to the question you asked. Well, absolutely. Alexander, please weigh in because it seems to me both of you are saying there is a liberal tradition that is under threat, which defines whether the U.S. and Britain are democracies or not really in name or or they really if those liberal traditions fall by the west. This is why I think so many people look at the Assange case as so monumentally important way beyond the life of one man. Well, indeed, absolutely.  I think he was born in the 19th century. He was, I think, somebody who became a lawyer, became a justice or at least was involved in the law long before the United States developed its national security state. So he is somebody who is inculcated in the Republican democratic tradition. And in fact, I think in those words that you quoted, he actually uses the word republic. Now, what we have today, and it's exactly the same thing trend line in Britain, Britain was the preeminent great power in the 19th century. The United States has become the great preeminent great power in the world today. By the 1880s, Britain was involving a national security state. By the early 1970s, the United States was evolving a national security state. Today, that evolution in both countries has gone much further. And in the United States, of course, you have a whole generation of lawyers who have grown up in within the framework of that national security state and the great power politics that come with it in a way that Hugo Black, probably just didn't have. So that, I think, is the difference. It's a major difference in perception. And if you like, in philosophy of understanding. Now, I have to say that, of course, there is a huge danger in all of this, because if you are going to make these decisions, going to start framing decisions in a way that try to go around the simple meaning of the First Amendment, then what you are in effect doing is you are replacing the constitutional system of the United States and its democratic systems with something that is different and which has more roots in the national security state that we now have. So in a way, the tension between the United States as a republic, a democracy and a great power is being won by that part of the United States that points towards it being a great power. It's got more defences because it's got the constitution. It's got the First Amendment. It's got more defences than Britain does. One senses that the United States, because it's a republican, a republic, it's got a stronger democratic tradition than Britain realistically has ever had. Perhaps the antibodies there, the legal antibodies and the political antibodies are stronger than they are in Britain. But it's a tough call and I'm looking at it from a British perspective. I find myself wondering how far America, if you like, will remain true to its original traditions or how far it will be swept along by the sort of great power mentality that is now becoming ever stronger. James, I'll give you the last word in response to what Alexander just said. Well, I think that I agree with everything Alexander has said and I wish to put it in the context of the digital revolution, which is that we have much more information floating around than we ever did before. And therefore, governments are tempted to control all that information to maintain the confidentiality of the government's decisions. The problem is that the government confuses confidentiality with national security and believes everything it keeps confidential affects national security. And it's that misapprehension that brings us to the point that we are today where we have a case where the government is overreaching with respect and protection of its information and what it makes this case so important for the future of not only the press but the country. James Goodall and Alexander McCouris, brilliant discussion. Thank you so much for joining us and staying over an hour. I want to thank our producer, Kathy Wogan and our audience for listening and I want to sign off for CN Live. This is Joe Laurier until next time. Thank you. If you are a consumer of independent news and the first place you should be going to is consortium news and please do try to support them when you can. It doesn't have its articles behind a paywall. It's free for everyone. It's one of the best news sites out there and it's been in the business of independent journalism and adversarial independent journalism for over two decades. I hope that with the public's continuing support of consortium news, it will continue for a very long time to come. Thank you so much.


So there's a lot of talk about climate today, people are concerned about what's going to happen to the climate in the future. And to understand what's going to happen, we need to examine what's happened in the past and understand what's happened in the past so that we can use that to project what might happen in the future. Now our observations of past climate, of course through instrumental records are rather limited. The last 100 years or perhaps a bit more. And so there's a limitation about how much information we can extract from that short interval of direct observations. However there are all sorts of historical records that can take us back further in time. They can be observations of local weather and climate in people's diaries. There's also references about local climate and weather from how good the harvests were for a particular crop and so on. And then if you go back even further in time to prehistoric times, the artworks that ancient peoples left behind in caves or on rocks often illustrate animals that were in that area at the time. And often we recognise that those animals no longer live there today. And so we can infer in many situations that the environment has changed, the climate has changed just from simple drawings of animals on a rock face or in a cave. To go back further in time, we need to use geological records. And the best geological records for understanding and study past climate are the sedimentary records that come from the ocean basins and from lakes. Both depositional environments allow sediments to slowly accumulate and those sediments incorporate animals, plant residues that we can use to reconstruct how climate has changed in the past. As an example, Lake George near Canberra has an excellent record of past vegetation from the pollen grains that are extracted from the sediment. In deep sea sediments, often it's microscopic floating organisms that fall to the sea floor that record past changes in sea surface temperatures, for example, that we can use to reconstruct the past temperature history of the ocean at that site. A major advance in our understanding of past climate on geological time scales has come from our study of ice cores at Greenland and Antarctica in particular. And through those cores we have access to unique information. The gas bubbles trapped in the ice record the composition of the atmosphere through hundreds of thousands of years, as far back as 800,000 years. The isotopic composition of the ice itself tells us something about temperature changes. So ice cores are a unique and valuable record of past climate change. In conjunction with sedimentary records, we have a very good understanding of how climate has changed through the last 800,000 to almost a million years. The trick is, of course, to extract some understanding of what's driving the climate changes. We can reconstruct how the environment has changed and it varies around the world. Not all places in the world are affected equally by climate changes on a global scale. Yes, global climate is changing. Yes, 20,000 years ago there was a time when ice sheets covered the whole of Canada and much of northern USA. An ice cap the size of Antarctica, sit, sat over Canada. That meant, of course, with all that water locked up in ice on land, that sea level was much lower because that ice came from water evaporated from the oceans. And 20,000 years ago global sea levels were 120 metres to maybe 150 metres lower than the present. That meant you could walk from Melbourne to Tasmania and Aboriginal people did that. So not just the change in climate, but changing coastlines are a function of that change in climate through variations in sea level change. 20,000 years ago to continue the example around Canberra, there were virtually no trees. It was a treeless landscape, much like the subalpine country in the upper areas of the Kosiosko National Park today. In Central Australia it was much colder, yes, but it was drier and it was windier. So sand dunes were moving around the landscape, dust was blowing out of the interior of Australia, much more commonly than even it is today. So environmental changes were dramatic associated with the major climate shift that made up what we call the last glaciation, that peaked around about 20,000 years ago. Before that many cycles of glaciers coming and going around the world, the pattern of so-called ice ages in the last two and a half million years which is driven ultimately by variations in the Earth's orbit around the sun. These are things that we're now coming to grips with to better understand how and why past climate change, which then allows us to project to the future.


Hello friends, I'm Dr. Shilpa Lara and I'm speaking to you on behalf of the Indian Radiologists. The Indian Radiologists are coming up with a case-based breast imaging course in the masterclass series. To be held on the 15th and 16th of May, so without any further ado, please register at your earliest.  So please register at your earliest.