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Emily D. Swoboda

U.S. Pressured over EU-W.T.O. Settlement

21 May 2008

A journalist's lawsuit against the United States government may help bring to light a serious policy violation within the executive branch.

Ed Brayton, a writer for the Michigan Messenger and a fellow at the Center for Independent Media, on Monday filed a lawsuit compelling the office of the United States trade representative to produce a copy of its compensation settlement with the European Union over the United States' withdrawal of gambling services from the General Agreement on Trade in Services.

"I simply think the public has a right to know what is being done with our money," Mr. Brayton told Interactive Gaming News.

The trade representative's office announced in December that it had reached a settlement with the European Union, but for reasons of national security provided only vague details on the scope of the arrangement.

Mr. Brayton in December requested under the Freedom of Information Act the full text of the settlement document, but was denied for reasons of national security, according to court documents filed with the Federal District Court in Washington, D.C. His appeal, filed in February, was also denied on the same grounds.

Under the act, all agencies of the federal government are required to disclose records upon receiving a written request, except those records that are protected from disclosure.

Mr. Brayton is represented by Public Citizen, a nonprofit advocacy group that represents consumer interests in Congress, the executive branch and the courts.

Mr. Brayton's attorney, Bonnie I. Robin-Vergeer, of the Public Citizen Litigation Group, told IGN the trade representative's only argument was that the documents were properly classified pursuant to World Trade Organization rules requiring secrecy. However, she could find no information in the W.T.O. rules to back up their claims.

"We don't understand their reasoning," Ms. Robin-Vergeer said. "They'd have to say more to understand why they think it's properly classified because we don't see that. We don't know why it's required to be confidential.

"In the lawsuit they'll have to give a reason," she added. "And then we'll see."

Meanwhile, Naotaka Matsukata, a senior policy analyst at Alston & Bird, a Washington, D.C.-based law firm, told IGN Mr. Brayton's case highlights a possible violation of the United States Constitution.

Mr. Matsukata said it is not unusual for the government to withhold information during trade negotiations. However, the trade representative's office did not have the authority to negotiate this particular agreement -- withdrawing gambling commitments from G.A.T.S. -- because it never consulted with Congress.

The Constitution gives the legislative branch exclusive authority over matters of trade. While the Trade Acts of 1974 and 2002 allowed Congress to delegate that power to the executive branch, the acts include a caveat that Congress must be consulted on all negotiations.

"The classification issue is one thing, but, really, underlying all of this is the process of how the U.S.T.R. and the government went ahead and negotiated this agreement without disclosing any of the details to Congress," Mr. Matsukata said.

While this issue does not directly relate to Mr. Brayton's lawsuit, Mr. Matsukata said the suit comprises one step in the process of trying to get trade representative's office to disclose the contents of the agreement.

"I think what they're hitting on here with the suit is the lack of transparency with the public -- 'public' meaning Congress -- about the details of the agreement," Mr. Matsukata said. "And they're (Mr. Brayton and Public Citizen) are saying that in the details of that agreement there may be issues that have broader implications on trade and life in general, depending on what part of it they look at. And that's what needs to be put forward."

Ms. Robin-Vergeer said that by withholding information, the trade representative's office is hiding from public and Congressional scrutiny before the settlement is finalized.

"This is a dispute about online gambling," she said. "This is hardly a national security issue."

According to court documents, a summons has been issued for the trade representative's office.

The trade representative's office could not be reached for comment.

U.S. Pressured over EU-W.T.O. Settlement is republished from
Emily D. Swoboda
Emily D. Swoboda