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- The § Rulebase Team

JOHN YARBROUGH

This week marks the 50th anniversary of the most critical events of the 13-day Cuban missile crisis, the event that brought the United States and Russia close to the brink of nuclear conflict. In recognition of the anniversary, the John F. Kennedy Library has made public more than 2,700 pages of Robert F. Kennedy’s files and notes related to the crisis. Those join numerous other documents regarding the crisis that have been made public through the Freedom of Information Act (FOIA), the Privacy Act, and Executive Order 13526, signed by President Obama in 2009.

The release of the RFK documents comes after the National Archives and Records Administration (NARA), the federal agency that administers the JFK Library and all Presidential libraries, expedited the federal declassification process in recognition of the anniversary. (The Robert F. Kennedy family says it does not restrict access to RFK documents except when the library is required by law to follow a federal declassification process prior to the release of any materials that are marked “classified” or “confidential.”)

The rules regarding the declassification of documents vary, but ultimately the most stringent hurdle is whether the documents must be kept secret by Executive Order in the interest of national defense or foreign policy.

The process of declassification often begins with FOIA requests made by individuals, public interest groups, journalists and government agencies. The FOIA has nine exemptions that can limit the release of documents, including documents established by Executive Order to be kept secret. The strengthening of freedom of information powers came after the passage of amendments signed by President Ford in the wake of the Watergate scandal.

In 2009, President Barack Obama signed Executive Order 13526: Classified National Security Information, creating a more uniform system for classifying, safeguarding, and declassifying national security information, including information relating to defense against transnational terrorism. While strengthening a number of elements of the process for keeping some documents classified, the order also placed limitations on the confidentiality of documents. It stated, in part:

“No information may remain classified indefinitely. Information marked for an indefinite duration of classification under predecessor orders, for example, marked as “Originating Agency’s Determination Required,” or classified information that contains incomplete declassification instructions or lacks declassification instructions shall be declassified in accordance with part 3 of this order.”

Declassification procedures over the years have led to the release of some of the most crucial documents of the Cuban missile crisis. They include:

The October 26, 1962 letter from Soviet Premier Nikita S. Khrushchev to President Kennedy which implied that a pledge from Washington not to invade Cuba would be sufficient to resolve the missile crisis.

The October 27, 1962 letter from Khrushchev to President Kennedy demanding that the United States remove its Jupiter missiles from Turkey in exchange for a Soviet removal of missiles from Cuba, standing in stark contrast to the previous day’s letter asking only for a pledge not to invade Cuba.

The October 27, 1962 response from President Kennedy that replied only to Khrushchev’s letter of October 26, which had asked for the non-invasion pledge but did not call for the removal of missiles from Turkey. (Separately, the President would send a secret message to Khrushchev through his brother Robert F. Kennedy assuring Khrushchev that the United States would remove its missiles from Turkey, as long as the agreement remained secret).

While the newly released documents by the JFK Library offer no major revelations, they do give a fascinating look into Robert F. Kennedy’s thinking at the time, including notes and papers from the most critical day of the crisis — October 27, 1962, when RFK met with Soviet Ambassador Anatoly Dobrynin to deliver the President’s secret message. In one document from that day, on a legal pad Robert F. Kennedy had scribbled the chilling words, “the most difficult and intense time.”

Following the resolution of the crisis, the two countries reached several new agreements and established new rules on how leaders of the two countries would communicate with each other if a similar crisis were to occur again. They signed the Nuclear Test Ban Treaty of 1963 as well as a Memorandum of Understanding that would establish a Moscow-Washington hotline for direct communication between the leaders of the two countries. The hotline still exists today as part of the Nuclear Risk Reduction Center created by Ronald Reagan in 1988. In May 2012, it was announced that a proposal was being negotiated with Moscow to add cyber warfare to the topics to be discussed on the hotline.

While the letters between Khrushchev and Kennedy stand as the most prominent documents of the crisis, another declassified document draws a chuckle from even the most serious historian — doodles JFK scribbled on a notepad during a meeting with his Security Council on October 25, 1962. It is stored in the National Archives under the title, “Doodles Annotated With the Words Missiles, Missiles, Missiles, 10/25/62 - 10/25/62.”

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Illustration by Vichavati Ho

JOHN YARBROUGH

Have your costume picked out and ready for Halloween, including that killer mask you know will be the buzz of the party? Know what time your kids will be out trick-or-treating, and where?

You may want to check your state and local laws before you head out. Even if the laws are on the books but never enforced, there are plenty of Halloween laws out there that you may not know about, from the mundane to the weird. Here are a few:

In Alabama, you can’t dress as a priest. Section 13A-14-4 of the Alabama Code says that “fraudulently pretending to be clergyman” will get you arrested and fined.

In many localities across the country there are time and age restrictions on trick-or-treating. In Rehoboth, Delaware, you can’t trick-or-treat after 8 p.m. Some localities, including Rehoboth, dictate that if Halloween falls on a Sunday, trick-or-treating should take place the day before. 

Many local governments have laws against wearing disguises including masks, hoods, and sunglasses, and some (at least on the books) require you to get a permit to do so. Some make specific exceptions for Halloween, but not all do. Walnut Creek, California, and Dublin, Georgia, are among towns with such laws.

Even New York City falls in that category: During the 2011 Occupy Wall Street protests, at least five people were cited for violating a little-known New York law (dating from 1845) that bans masks at gatherings of two or more people. According to the Wall Street Journal, the law was created to help quell uprisings against landowners by tenant farmers: “Disgruntled farmers disguised themselves as ‘Indians,’ dressed in ‘calico gowns and leather masks’ and attacked agents of the landlords.”

And when it comes to laws some consider silly, this one may beat them all: In 2004, Silly String was made illegal in Hollywood “from 12:01 a.m. on October 31 to 12:00 p.m. on November 1.” The Los Angeles Police Department warned party-goers, residents and businesses that possession or use of the offending substance carries a $1,000 fine or a six-month jail term. The LAPD news release also warned against the distribution or sale of Silly String during that time.

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Photograph  used under Creative Commons license courtesy of Flickr user Hannah Horwarth

JOHN YARBROUGH

In a tight race, could the 2012 Presidential election end in a 269-269 tie – spurring an Electoral doomsday that would make the 2000 recount election look like a cakewalk? If it’s a very close race, the answer is a troubling, “yes.”

Get ready for recounts, court battles, rogue electors who could switch their vote, dramatic votes in the House and Senate, and even one scenario that could leave the country with a President Mitt Romney and a Vice President Joe Biden.

Assuming recounts or court fights do not change the Electoral vote, the next battleground comes when the Electoral College — made up of Electors from all 50 states, who are expected to vote for the candidate who won their state — meets on December 17th to cast its vote.

First, a bit more on the Electoral College. The truth of the matter is that the American people elect their presidents indirectly: The founders who drew up the Constitution in 1787 created the Electoral College because they were not willing to allow ordinary citizens to vote for their president directly, as they were afraid that the people would not be well informed enough to choose wisely. Rather, the founders believed that a selected group of electors should pick the president.

The laws regarding the Electoral College can be found in Title 3 of the United States Code, from the number and makeup of electors, to the voting process and the certification of results. While the laws on the Electoral College have evolved over time, the endgame is still the same: Electors have the final say. (Thus the reason why four times in American history the winner of the popular vote did not win the election, most recently in 2000. But that’s another article altogether).

So this is where an Electoral tie makes things tricky. Usually the Electoral vote is a formality, but with an Electoral tie there could be a major fight between Obama and Romney supporters to try to convince Electors to change their votes. There are no Federal laws preventing “faithless” Electors from changing their votes, and only about half of the states have laws preventing Electors from doing so.

But if  the Electoral College remains tied after its vote, the battle then moves to Congress. And here is where it really gets complicated.

As set forth in the Twelfth and Twentieth Amendments, in the case of an Electoral tie the incoming House and Senate (as elected on November 6, and sworn into office on January 3) would decide the issue.

The House would vote to choose the President and the Senate would vote to pick the Vice President. The vote for Vice President by the Senate would be a straight up or down vote by all 100 Senators. The House vote would be a little different: Rather than a straight up or down vote of all 435 House members, instead each Congressional delegation from each state has only one vote to cast. So, whether it’s California or Rhode Island, all states get only one vote.

The upshot of all of this? An Electoral tie would virtually assure that Mitt Romney would be elected President, since Republicans hold the majority of most Congressional delegations. But, if Democrats still control the Senate, Romney’s Vice President could well be … Joe Biden.

Add one more item to the mix: If the Senate is tied 50-50 in its vote for Vice President, could Vice President Joe Biden – in his role as the President of the Senate – be able to cast the tie-breaking vote, presumably for himself? The Twelfth Amendment is not entirely clear on this point, some legal scholars say. Could another Supreme Court battle be in the offing?

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Illustration by Vichavati Ho

JOHN YARBROUGH

It may be the most heated debate over a single rule in all of sports. On one side are the purists who say it takes away from the integrity of the game. On the other are those who say the rule makes a great tradition all the greater.

It’s the Designated Hitter Rule – the Major League Baseball rule that allows a batter to bat in place of the pitcher – and you better be careful if you raise the topic in conversation. Among even casual fans, it can be the baseball equivalent of bringing up Irish politics in a Belfast bar.

Every time the World Series begins – as it does later this month – the debate rages anew. That’s because the American League adopted the DH rule (Rule 6.10 in MLB’s Official Rules) in 1973, but the National League rejected it then and still does to this day. So when the two teams face each other in the World Series, there’s a collision of worlds that can make for some interesting baseball.

In the National League the pitcher always bats – that’s the way the game began, those who hate the DH say, and that’s the way it should stay. Kevin Costner in Bull Durham went so far as to declare there should be a constitutional amendment against it. But supporters say the rule brings excitement to the game because it results in more hits and home runs, plus fans don’t have to watch pitchers –notoriously bad hitters – struggle at the plate.

But the rule has separated in many ways how teams in the two leagues approach the game. What if one league in the NBA changed its rules and created a four-point shot, but the other didn’t? What if one league in the NFL increased the number of downs a team can have from four to five, but the other didn’t follow suit? Some say that’s the kind of impact the DH has had on baseball.

Back to the World Series. Like any squabbling couple that stays together in a marriage, the two leagues have found a way to seemingly make things work: When a World Series game is played in an American League ballpark, the designated hitter is used. When it is played in a National League ballpark, it isn’t. (The same holds true for interleague games played during the regular season, which were first introduced in 1997 – another piece of sacrilege for many fans.)

There is no consensus on whether using the DH (or not) gives an advantage to one league or the other in the World Series. But that doesn’t keep the debate over the DH from rearing its head every October. So: Will the American League ever abandon the DH and return to the original way the game was played? Will the National League join its counterpart and embrace it?

The answer to the first question is that there is no way in hell the American League will get rid of the DH. It’s ingrained in how they play the sport, and neither American League owners nor the players union are likely to do away with a rule that gives more players the opportunity to play and allows the owners to give fans the hits and home runs they crave.

As for the second question? In an era when the MLB is becoming more progressive regarding its rules – from adopting interleague play to starting to use instant replay to review some umpire calls – some say it could be only a decade away before the National League caves. And now that the MLB next year will be increasing interleague play throughout the entire season, the push for a uniform rule will likely become greater.

The DH rule hit the Big Four-O in the American League this year. For the National League, does life begin after 40?

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LEONARD BROOKS

This sign, rulespotted in a bathroom in Ithaca, NY, states that “all employees must wash hands after using the toilet, before preparing food, and when they are soiled.”  (Note:  photographer washed hands before taking this picture). Looks like New York is keeping its employees’ hands pretty clean.  Here is the specific New York State Law:

“Employees are to maintain a high degree of personal cleanliness and are to conform with good hygienic practices when working in food service establishments. Employees are to wash their hands and exposed area of arms thoroughly with soap and warm water before starting work, and as often as may be necessary to remove soil and contamination. Thereafter, employees are to wash hands thoroughly after using the toilet, smoking, sneezing, coughing, eating, drinking or otherwise soiling their hands before returning to work. Employees are to keep their fingernails clean and neatly trimmed.”

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Notes

N.Y. Comp. Codes R. & Regs. tit. 10, § 14-1.71.

JOHN YARBROUGH

How many films rated NC-17 have you seen at the movie theater? If you’re like most people, the answer is probably zero.

The Motion Picture Association of America’s (MPAA) Classification and Rating Administration, the committee that rates films, came up with the designation in 1990. While created with good intentions, the rating has come under increasing criticism over the years.

The designation was seen as a way to replace the MPAA’s “X” rating created in 1968, which by the 1970s had been appropriated by the adult film industry’s more risqué films (the rating was not trademarked, so anyone could apply it to a film). By replacing the X rating with NC-17, it was thought filmmakers could freely explore controversial themes and difficult subjects. (In the first years of the X rating, films such as the Academy Award-winning Midnight Cowboy, Last Tango in Paris, and A Clockwork Orange were all initially released with an X rating.)

Here is the criteria the MPAA uses to give a film an NC-17 rating, as stated on the MPAA website:

“An NC-17 rated motion picture is one that, in the view of the Rating Board, most parents would consider patently too adult for their children 17 and under. No children will be admitted. NC-17 … should not be construed as a negative judgment in any sense.

“The rating simply signals that the content is appropriate only for an adult audience.”

But critics say the NC-17 rating has discouraged filmmakers from making adult-themed films – rather than encouraged them to do so. And they say the MPAA applies the rating in an arbitrary way with little explanation of how they reach their decisions.

Films rated NC-17 (No One 17 and Under Admitted) still end up being regarded by many as tainted, detractors say, and filmgoers won’t go see them. And therefore the number of theaters that will carry them is smaller.

So filmmakers face this dilemma: Either stick to their artistic vision and make a film that makes less money and is seen by a smaller audience, or grit their teeth and make painful MPAA-mandated cuts in order to get a wider release. Directors from Oliver Stone to Quentin Tarantino have re-cut their films so as not to get an NC-17 rating, including Tarantino’s Pulp Fiction — one of the most influential films of the last 25 years.

Most filmmakers these days are following suit, some even admitting to engaging in self-censorship before they submit their film to the MPAA. The result, critics say, is a ratings system that prevents any serious exploration of controversial themes in movies today. And at a time when popular, critically acclaimed dramas on cable are exploring these themes –many say the NC-17 rating is outdated. Neither the public nor filmmakers are privy to how the MPAA committee makes their decisions.

A recent controversy arose when Blue Valentine received an NC-17 rating, and Black Swan did not, despite having the same type of adult content. The Weinstein Company appealed the Blue Valentine decision, and the film received an R rating without any cuts being made.

Some filmmakers and studios are choosing instead to release their films with no rating at all. (But that can only be done by smaller distributors who are not MPAA signatories). Others, like those behind the recent film Killer Joe starring Matthew McConaughey, have chosen to embrace the rating.

Theaters are not required by law to use any of the MPAA ratings, including the NC-17 rating. But for all intents and purposes, the ratings are the law: As MPAA signatories, by rule the major studios must release their films with ratings.

So why does the MPAA continue to use the rating, when it is increasingly criticized?

There are debates going on about how the problem can be fixed, but there is no consensus on what should be done. Some have suggested using two different versions of the R rating, which is already ingrained in people’s minds, or introducing a new set of ratings altogether. Some have suggested the NC-17 rating should be abandoned entirely.

Others say the MPAA should be cut some slack. They say theater owners are cautious about making any sudden changes. And thus the conundrum: For the rating to be widely embraced, the NC-17 designation needs to be on more mainstream movies. But few distributors want to release a mainstream film with the NC-17 rating until there are more hit movies with the NC-17 designation first.

About the only thing everyone can agree on is that change is not coming soon, and the NC-17 rating is not going away for now.

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Photograph used under Creative Commons license courtesy of Flickr user Timothy Vollmer

JONATHAN BLUM

Nike announced today that the company is ending its endorsement of Lance Armstrong because of “seemingly insurmountable evidence” of doping.

Corporations frequently use celebrity endorsements to market products.  But what happens when the star falls?  Typically, the corporations protect themselves in endorsement agreements with what is called a “moral turpitude clause,” or “morals clause” for short. 

A morals clause allows the corporate sponsor to terminate the endorsement deal if the celebrity’s actions would subject the company to ridicule or contempt, or diminish the reputation of the company.

Nike has a history of sports stars that encounter public relations problems, which has given Nike many opportunities to exercise the morals clause.  In 2007, Nike dropped Michael Vick after he entered into a plea arrangement regarding his involvement in dogfighting, but re-signed him again in 2011 after his prison sentence.  However, Nike stood by Tiger Woods as his marriage dissolved in a dramatic fashion, and the company remained faithful to Kobe Bryant as he was accused of sexual assault. 

Nike made it clear that its support for the Lance Armstrong Foundation, Armstrong’s cancer foundation, will continue.

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Notes

Nike Statement on Lance Armstrong

Updated Nike Statement Regarding Michael Vick

Michael Vick, Nike Reach New Deal: Eagles Star Back with Nike [Huffington Post]

Lance Armstrong Nike Contract Terminated: Company Severs Ties With Cyclist Over Doping Allegations [Huffington Post]

Tiger Woods Needs To Thank Kobe Bryant for Keeping His Nike Endorsement [Bleacher Report]

Photograph used under Creative Commons license courtesy of Flickr user Amanda Slater

JOHN YARBROUGH

If there’s one thing all car owners complain about at least once, it’s driving your car to an auto shop and being taken by the auto repairman.

“They can make up anything, nobody knows,” George Costanza once railed in an episode of Seinfeld. “‘By the way, you need a new Johnson rod in there.’ ‘Oh, a Johnson rod. Yeah, well, you better put one of those on.’”

But now it’s the auto repair shops that say they’re being cheated – and they don’t think it’s funny.  And at least one state legislature agrees with them.

What are auto shops complaining about? The automakers. For years independent shop owners have accused automakers of withholding the tools and information necessary to diagnose and repair their increasingly computerized cars. In turn, they say, the automakers hold the key to fixing those cars, leaving auto shops in the dust. This denies the auto shops their so-called “right to repair,” they say. And they are throwing another wrench in the mix: They are calling for what some have termed a “common diagnostic interface” across the industry.

On both counts, automakers are trying to slam on the brakes. They say providing such information would jeopardize their intellectual property. And they say a common diagnostic interface would require them to redesign vehicle software.

Enter the Motor Vehicle Owners’ Right to Repair Act, being proposed in Congress and several state legislatures. The bills would require automakers to provide the same information to independent shops that they give to dealer shops.

Versions of the bill have been around for years, but have died in Congress and in state legislatures. But Massachusetts – believed to be the first state in the nation to issue license plates for vehicles (in 1903) – passed its version of the bill this summer, and it will take effect in November. Its provisions include calling for the adoption of a standard diagnostic interface by model year 2018 – giving manufacturers enough lead time to comply. Some say the Massachusetts law could become the model for a nationwide standard.

So score one for the independents, for now. And hold off on getting that Johnson rod.

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Notes

H.B. 4632, 187th Gen. Court (Mass. 1012). Protecting Motor Vehicle Owners and Small Businesses in Repairing Motor Vehicles

H.R. 1449, 112th Cong. (2011). Motor Vehicle Owners Right to Repair Act of 2011

Right to Repair Coalitions 2012

“Small Mechanics Score as ‘Right to Repair’ Bill Passes”

Illustration by Vichavati Ho

JOSH GOLDBERG

We posted John’s article on the terms and conditions of Presidential Debates on October 3rd, anticipating that, as in previous years, the actual Obama-Romney agreement would not be public until at least 2016.  However, Mark Halperin of Time managed to get his hands on the agreement, and I wanted to flag a few of the highlights…it does not disappoint:

“For each debate, there shall be no opening statements…The order of these closing statements shall be determined by coin toss.”

“No props, notes, charts, diagrams, or other writings or other tangible things may be brought into the debate by any candidate, including portable electronic devices…”

“No candidate may reference or cite any specific individual sitting in a debate audience (other than family members) at any time during a debate.”

“President Obama shall be addressed by the moderator as ‘Mr. President’ or ‘President Obama.’ Governor Romney shall be addressed by the moderator as ‘Governor’ or ‘Governor Romney.’”

And my favorite in light of its use at a number of GOP Primary debates:

“At no debate shall the moderator ask the candidates for a ‘show of hands’ or similar calls for response.”

Enjoy the debate - 8pm CST tonight.

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Notes

2012 Memorandum of Understanding between the Obama and Romney campaigns

Illustration by Vichavati Ho