[CCWG-ACCT] Cruz / NTIA: Time to Get Expert Advice

[parminder]

It is odd that advice about political reality is being sought from legal
advisers who I think were there, as the name will indicate, for legal
advice. Not only are lawyers not (necessarily) the best political
advisers - in any case in this area opinions are what you mostly get
from anyone whomsoever - it is dangerous to mix political advice with
legal advice with regard to people specially retained to provide legal
advice in a process. In fact the latter need to clearly know that they
should only dispense legal advice and keep it fully free from political
facts or opinions... Asking them for political advice is to as they say
in Hindi 'strike one's own foot with the axe'.

In this regard, I am surprised and find it, excuse me to say, almost
scandalous that the group seem to be officially interested in knowing
and understand the 'political reality' in Washington.... That is none of
its business. And then, if it is indeed so politically inclined, has it
ever tried to understand the political reality of the whole world and
how US hegemony is not only resisted by detested all across, something
which is being preserved in the proposed models by not touching the
question of jurisdiction, whereas it is not at all foreclosed as per the
ToR of the group.... When dealing with the rest of the world how is it
that this group becomes completely technicalist and politically
blindfolded? If like trying to learn about the political reality in
Washington, if the group is in fact interested in learning the global
political reality I can help in assembling an appropriate group that can
advice on that.

Anyway, coming to what IMHO is the highly problematic propensity that I
see here of seeking to tune into the political reality in Washington,
this group must understand that it is supposed to represent global
public interest, to which alone it has to be accountable, and therefore
be tuned to (of which it unfortunately has done a pretty bad job). And
make a proposal within the known and published terms of reference or
conditions under which it was set up, where nowhere I see mentioned the
condition of keeping tuned to political realities in Washington. It has
to make a proposal that it thinks (1) best serves global public interest
and (2) contravenes none of the conditions that were expressly and
openly communicated when the group was set. Catering to any other
consideration, including and especially of Washington's sensitivity, is
completely illegitimate. (Wonder why no lawyer tells the group that
simple fact.) The fact that this kind of a thing can get openly
discussed by an empowered group which is mandated with the extremely
important political task of deciding the oversight of the technical
functions related to,  and here I quote Edward's email, "the most
powerful communication technology in human history'  itself shows that
this process has been (deliberately?) constituted in a manner that while
accomplishing a political function is rather politically blind or at
least insensitive. It does not accept and internalise the political
nature of its task and the ethos and methods therefore that go with
public civic roles and duties. It still likes to treat the task largely
in private law and corporate governance frameworks, a task which in fact
is clearly of public governance and of politics.

While at it I may make another point which is relatively independent. It
is a pity how Board's resistance to the group's accountability proposal
is now becoming a kind of a strawman that completely distracts from all
the problems with the CCWG's current proposal itself. It has succeeded
in giving it a kind of heroic halo which, even if I go by the numerous
critiques in the public comments, it simply does not deserve.

Hope, this is taken fully as a political comment which it is supposed to
be and not personally by anyone (just think of a congressional/
parliamentary debate!)... Thanks, parminder



On Tuesday 29 September 2015 07:16 AM, Edward Morris wrote:
> Hello everybody,
>  
>  
> Some of the unknowns facing this group going forward are as much
> political in nature as they are substantive or procedural. Do we take
> the opinion and perspective of Senator Ted Cruz seriously? Is it a
> threat to the transition? Is there something that we can do to be
> responsive to the genuine concerns of Senator Cruz? Are his concerns
> genuine?
>  
> What about the NTIA? The deference shown to Secretary Strickling among
> some of us here is almost Papal in nature. What did Larry say, how did
> Larry say it, what did he really mean when he said it but really
> didn't say it. It's a bit ridiculous. I admire Secretary Strickling.
> He's a fine civil servant. His published salary, though, is less than
> that of a first year associate from a decent law school at a mid sized
> corporate law firm. He is not the all mighty. Commerce and the NTIA
> are complex places. Larry has absolute control of neither.
>  
> I've read here today a legal analysis of the Senator's Constitutional
> challenge by someone I know to be neither an American nor a lawyer. I
> can click both boxes and I have my views but am I sure I'm right? No.
> It seems everyone here has an opinion as to what the NTIA will or will
> not accept from us. Do any of us really know? No.
>  
> Prior to the Los Angeles meeting it was suggested that we might want
> to hear from ICANN's lobbyists, that they could explain to us their
> version of political reality. We properly rejected that offer. I think
> we've reached the point, though, where we do need to call upon the
> expertise of some Washington political professionals to help guide us
> through this part of the process. No more guesswork by amateurs or
>  implied threats by those with some self-interest in the matter. We're
> talking about who is going to run a vital part of the most powerful
> communications technology in human history. We need to do this
> right. Fortunately, we've already retained two such individuals who,
> if we wish, have the expertise and ability to assist us in this area.
>  
> Back in the early days of this project when we were all young,
> innocent and hopeful :)  we retained not one but two law firms to help
> guide us. In retrospect that decision and two firms we chose to
> hire were amongst the best decisions we've made in this CCWG. I have
> complete faith in our lawyers and that is a rarity for me. I
> note  that one of the specific reasons we hired Sidley was for their
> Washington ties and expertise. During our interviews with the firm we
> were able to meet two of their professionals with the greatest
> knowledge of DC and government operations : Cam Kerry (
> http://www.sidley.com/people/cameron-f-kerry)  and Rick Boucher
> ( http://www.sidley.com/people/rick-boucher ). Both men were extremely
> impressive.  It is time to tap their talents. We need serious advice
> in these areas from serious professionals.
>  
> I would respectfully ask our Chairs and the full CCWG to consider
> inviting either Rick or Cam to Dublin to meet with the CCWG early in
> the week, preferably during the initial F2F. I think it's important
> that everyone has a chance to question them. We need this type of
> policy expertise from a politically  astute professional who owes a
> duty of care  to us, no one else, and whose rolodex allows him or her
> to reach out to those whose decisions will most impact our work.
> We need to know what political reality is if we are to maximise our
> potential as a very special and unique group dedicated to helping
> create a truly open and accountable governance mechanism for this
> small part of the networked world.
>  
> Thanks for considering.
>  
> Best,
>  
> Ed Morris 
>
>
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