A 2008 California law prohibits slaughterhouse operators from allowing nonambulatory hogs to remain with the herd. Instead, the operator must immediately “humanely euthanize” and remove the animal. This differs from federal law which requires animals that are lying down to be removed and inspected, but allows such animals to continue to slaughter, depending on circumstance.

The National Meat Association, which sued on behalf of the pork industry, points to the potential financial hardship of culling hogs that are uncooperative or transport-stressed, and has asked the High Court to strike down California’s edict on grounds that it over-stepped the federal rule.

Although a federal judge initially sided with the industry and prevented the state from enacting the law, Judge Alex Kozinski of the 9th Circuit Court of Appeals summarized that decision as “hogwash.” In the unanimous three-member opinion, Kozinski said states have always had certain authority regarding livestock and slaughter.

In effect, the district court reasoned that states may ban the slaughter of certain species, but once a state allows a species to be slaughtered, it cannot impose further restrictions. Hogwash.

States aren’t limited to excluding animals from slaughter on a species-wide basis. What if a state wanted to ban the slaughter of a specific breed of pig but not the entire species? Or to allow wild dogs and horses to be slaughtered, but not domesticated companions? And what if, in response to a population problem, a state only banned the slaughter of female cattle? Or, perhaps due to ethical concerns, prohibited the slaughter of pregnant or newborn animals, or the slaughter of non-free-range animals? Regulating what kinds of animals may be slaughtered calls for a host of practical, moral and public health judgments that go far beyond those made in the [Federal Meat Inspection Act]. These are the kinds of judgments reserved to the states … Federal law regulates the meat inspection process; states are free to decide which animals may be turned into meat.

The Federal Meat Inspection Act (FMIA), which contains the Wholesome Meat Act of 1967 and the Humane Methods of Slaughter Act, is the law that overseas the U.S. process for slaughter, provides inspection services and so-forth.

In its brief, the National Meat Association highlighted operations at a California slaughterhouse that processes roughly 7,700 hogs each day.

A number of hogs delivered to this California facility become nonambulatory during transit, and approximately 225 per day become nonambulatory while awaiting slaughter. For hogs, this symptom (being nonambulatory) is usually temporary and happens for a variety of reasons, most of which are benign. Some hogs become stressed or fatigued during transit and, therefore, cannot or will not stand or walk upon arrival. Others become unable to do so, or refuse to do so, only after being removed from the truck and while awaiting slaughter. As required by the regulations … these hogs are separated and held for inspection. The vast majority of nonambulatory pigs are merely overheated, stressed, fatigued, or stubborn and, if allowed to rest, will stand and walk unassisted. Those pigs are routinely passed by the inspectors for slaughter and human consumption. Others, however, are actually sick or diseased, and are removed from the food supply.

The organization also argued that many diseases or sicknesses that impact hogs need to be evaluated while the animal is still alive. Through the process that exists, they argue, federal inspectors are best able to track disease and pull entire lots of animals that may pose a risk to the food supply or may expose other lots of livestock.

The federal ante-mortem inspection regime thus protects both the animal industry and human health by preventing or limiting the spread of disease and keeping diseased animals out of the food supply, while at the same time allowing those animals passing inspection to be humanely use for the purpose for which they were raised, as food for human consumption.

The California law was passed by state lawmakers after a 2008 whistleblower video by the Humane Society of the United States showed nonambulatory cows being sent to slaughter. The aftermath was a massive beef recall and a 2009 federal order that expressly prohibits any such cows (but not hogs or other livestock) from being slaughtered for human consumption.

But opponents of the California measure say that a downed cow, which can be showing symptoms of mad cow disease, is quite different from a hog.

Attorneys for HSUS, which was instrumental in passage of the California law, argue that there has been a general absence of federal and state humane regulations, which has been made more dire by vertical integration within the livestock industry.

Most pigs who go down do so for reasons that begin long before the animals arrive at the slaughter facility. As one industry article explained, “[t]he packer is at the mercy of the pigs’ experiences prior to arriving at the plant.” The so-called “fatigued pig syndrome” is a convenient label invented by the industry to justify the number of animals who become nonambulatory for reasons the industry cannot or does not want to explain — likely due to factors of mass production, grueling long-distance transport, and injury that the industry has freely chosen to make an integral part of the business of turning pigs into meat. The best scientific article on the subject concluded in 2008 that nonambulatory pigs suffer from a laundry list of physical and systemic problems, including bone injury; painful foot and leg problems; respiratory, kidney and liver disease and dysfunction; and infection.

In addition the group argues, the industry’s assertion that such nonambultory pigs need to be given time to rest “conceals a grim reality.”

Federal regulations require that nonambulatory pigs be segregated, but they do not usually become nonambulatory in convenient locations where they can be given food or water and allowed to rest in place. And slaughterhouse personnel who want to move a 300-pound nonambulatory pig, either to slaughter or to a segregated area to “rest,” have simple choices. They can induce the pig to walk by applying pain and/or brute force in some form. And they can push, drag or otherwise maneuver her using heavy machinery.

As members of Congress explained when debate proposed legislation in 2001, “[t]hese animals, known as downers, suffer beyond belief as they are kicked, dragged, and prodded with electric shocks in an effort to move them at auctions and intermediate markets en route to slaughter.” (statement of Rep. Ackerman) “It is practically impossible to move these animals humanely, so they are commonly dragged with chains and pushed around with tractors and fork lifts.” (statement of Rep. Morella) “[H]umane euthanasia is the only reasonable solution. It is civilized to oppose needless animal cruelty and inexcusable to allow it to continue.” (statement of Rep. Kelly)

Noncompliance teports from USDA’s Food Safety and Inspection Service show that slaughterhouse employees have used a wide range of techniques in an effort to move or deal with downed pigs. The operators have:

• dragged nonambulatory pigs with ropes
• dragged pigs by their ears
• dropped pigs from bone-breaking heights
• caused pigs to be trampled
• run over pige with heavy machinery
• dumped pigs in “suspect” pens where they were without food and water

The full merit briefs from the National Meat Association and non-state respondents (HSUS) are available. All briefs can be viewed on the American Bar Association’s preview site. Supreme Court justices are expected to take up the case this week.

Iowa remains the number one pork producing state in the nation, and the top state for pork exports. At the end of of 2008, according to the National Pork Board, there were 8,300 hog operations in the Hawkeye State and roughly 19 million hogs being raised here at any given time. Iowa producers marketed 37 million hogs in 2008, or roughly 30 percent of all U.S. production.

The state’s pork activity generates nearly $950 million in household income for pork producers, 39,000 jobs directly related to raising and caring for livestock, and a contribution of nearly $5 billion to the state’s economy, according to the Iowa Pork Producers Association.

Reporter Brett Ader from our sister site The Florida Independent notes that while the Florida proposal might be dead, opponents aren’t yet ready to celebrate.

Even with state protections afforded to whistleblowers as well as those outlined in the Food Safety and Modernization Act, many fear if even a single state were to pass a so called “ag-gag bill,” the ripple effect could prove detrimental.

“I’d be concerned that a state law would be a sufficient enough deterrent that it would chill the sort of activism that is providing this insight into what’s occurring,” says Wayne Pacelle, CEO of The Humane Society of the United States.  “I think we’d probably have to offer some legal challenges to them, but I know that they are trying to craft these bills in a way that is constitutionally defensible. Whether they can meet that standard is uncertain, but we’re going to work very hard to do all that we can to block it so we don’t have to get to that circumstance.”

… [Florida Sen. Jim] Norman acknowledged that he had crafted the legislation along with the Florida Farm Bureau at the behest of one of the state’s largest egg producers, Wilton Simpson, who recently announced his intention to run for state Senate in 2012.

Legal experts had warned of the numerous issues that would arise under the U.S. and state Constitutions, as well as legal provide for whistleblowers. CNN even hosted a debate last month on the proposed laws, in which legal analyst Sunny Hostin decried the legislation as “disingenuous,” pointing to the fact that lawmakers behind the legislation acknowledge that even in instances where what is being filmed is an accurate representation, doing so would be illegal.

Since budget battles continue to loom large in the Iowa legislature it is unlikely, most lawmakers say, that the Iowa version of the bill will get further debate this year.

The bill, House File 589, passed the Iowa House on a 66-to-27 vote March 17. Upon arrival in the Iowa Senate, it was referred to the Agriculture Committee, where it was approved on March 21 and recommended for passage. Although several amendments to the bill have been placed on file, the proposed legislation remains filed under unfinished business and is unlikely to get a hearing of the full Senate before the session ends.

If enacted, the bill would provide special protections unique to agricultural operations that would not only protect livestock and crops from damage by outsiders, but would make it a specific crime, labeled as “crop operation interference” or “animal facility interference,” to “produce a record which reproduces an image or sound occurring” at the animal facility or crop operation without consent of the owner. The bill also explicitly notes that it is not to be applied to animal shelters, boarding kennels, commercial kennels, pet shops or pet impoundments.

If found guilty of such a crime, the first offense would be considered an aggravated misdemeanor and all subsequent offenses would be classified as Class D felonies. All those found guilty would be subject to restitution, and could be civilly sued by the owners of the facility for “an amount equaling three times all actual and consequential damages” in addition to court costs and attorney fees. Also, the court is provided a legislative path for granting “any equitable relief that the court determines is appropriate.”

Sandy Greiner

“On the videotaping thing… first of all, there has been some amendments drawn, but I think the most important thing that you need to know is that it isn’t always described accurately in the news media,” Greiner told audience members at a League of Women Voters legislative forum Saturday.

“This is about someone who intentionally comes to [a farmer] and applies for a job with the intention of getting inside to take photographs. They never say, ‘I want to come to your farm and take photographs.’ They just say, ‘I want to be your top-notch power-washer,’ or your feed grinder, or whatever it is that they want to do. That’s what this bill is trying to get at: People who misrepresent themselves and their intentions.”

Greiner added that the bill “is not about hiding anything,” but offers “protection for any employer.”

“I mean, it doesn’t matter if you own a hardware store and someone is not turning on the fans when they are mixing paint — you know, OSHA has all of the rules. If somebody comes in as an employee and seeks that jobs with the distinct purpose of doing something to defame you, that is where the problem lies.”

The bill before the legislature does not provide these unique protections — or protections outside of existing trespass and fraud laws — to all businesses. The bill is specifically written to only address agricultural facilities with livestock or crops. As noted above, the bill makes it very clear that certain other businesses that work with animals, such as pet shops and kennels, are exempt from the offered protections.

But even if the bill did extend protections to all business owners, a member of the forum audience noted loudly that such a scenarios described by Greiner would only be a problem if the employer was already engaging in unlawful activities.

“But the problem is this: We have two documented situations in other states where two people came on board and they literally staged things. That happened in a chicken facility and a place out east,” she said. “If we have people that are literally creating situations, then that’s bad. That shouldn’t happen. I don’t think anybody in this room would agree that is a good thing, if you have people intentionally setting somebody up.”

Although Greiner admitted that the bill is not likely to have further debate in the Iowa Senate, she said she felt it was important to speak out about the proposed legislation at the forum and to clear up misconceptions.

“The way the bill has been described in some segments of society has been less than accurate and I think it is important, whether we like it or not, we at least describe the bill forthrightly,” said Greiner.

Joe Bolkcom

Iowa Sen. Joe Bolkcom (D-Iowa City) added that the bill is not likely to come up because many lawmakers believe “that we already have strong trespassing laws that we should just enforce.”

“I know there was at least one specific example where people did get hired, took pictures of animals not being well taken care of and then the video came out and it was a big deal,” Bolkcom said. “We’ve had a lot of conversation about it and there have been huge issues about the constitutionality of it … and it is my hope and sense that we are not going to find the language that we can get agreement on in this issue. Hopefully, it is going to go away.”

CNN analysts also concluded that the bill, which has made an appearance in other states this year, is “likely unconstitutional.”

U.S. Sens. Chuck Grassley, a Republican, and Tom Harkin, a Democrat, have both worked for years on federal agriculture policy and have also trended toward additional protections for those who serve as whistleblowers.

This spring Grassley introduced legislation that would extend whistleblower protections to government employees. “I’ve often said whistleblowers are as welcome as skunks at a Sunday picnic, despite the fact that all they do is bring forward the truth,” Grassley said during his floor statement on the proposal.

And, just hours before the Iowa House approved the HF 589, Harkin told reporters that what lawmakers were considering didn’t seem to be good public policy or generally in the public’s best interest.

Harkin, who has not studied the specifics of the bills before Iowa and other state lawmakers, said at first blush the proposals sound like something that would not be good public policy.

“Thankfully, because of whistleblowers and others doing undercover work, we are finding out about a lot of the abuses that are taking place in animal agriculture — and some of those abuses have just been awful,” Harkin said during a conference call with reporters.

“[Such abuses] should not be allowed to continue, but a lot of the time they are done in isolated places [where] people don’t know about it.”

The Iowa House measure, House File 589, which was introduced and floor managed by state Rep. Annette Sweeney, a north-central Iowa rancher, prohibits individuals or groups from “interfering with an animal facility or crop operation.” Such interference, as defined in the bill, would include audio and visual recordings and their distribution. Those found guilty of interference would be prosecuted for an aggravated misdemeanor crime on a first offense and of a class D felony on any subsequent offenses.

In addition, the bill makes it a crime (fraud) for an individual to gain access to an animal facility or crop operation under false pretenses. First offenders would face an aggravated misdemeanor charge and subsequent offenses would garner felony prosecution.

In Iowa, conviction on a class D felony would subject an individual to a maximum of five years in prison and a fine of up to $7,500. Convictions on charges of aggravated misdemeanor carry a term of up to two years in prison, and a fine of up to $6,250.

A similar bill, Senate File 431, was introduced in the Iowa Senate by Sen. Tom Rielly (D-Oskaloosa). It will likely remain stagnant as members of the Senate take up the measure already approved by the Iowa House.

Whistleblowers, often affiliated with animal rights organizations, have often gone undercover at agricultural operations throughout the nation. Their reports, which are often in video format, have documented serious abuses and, many times, have prompted state and federal officials to further investigate the facility or plant.

“I’d have to take a look at the proposal, but I’d not, in any way, want to make it criminal for someone to be able to disclose to the public these types of abusive practices,” Harkin said.

Before approving a final version of the bill, Iowa House members included two amendments — H1278 and H1375. The amendments clean up language in the bill and exclude certain operations (animal shelters, boarding kennels and pet shops).

But are the statements signed by Obama really the same as those signed by Bush?

Not surprisingly, longtime Democratic administration lawyers don’t think so. Walter Dellinger, for example, who promoted the use of signing statements in the Clinton administration, says the difference is that Obama’s signing statements are based on sound interpretations of constitutional law.

Signing statements “long have been used to signal the President’s belief that some aspect of a piece of legislation is unconstitutional,” Dellinger wrote in a 2006 response to the ABA, along with former Clinton officials David Barron and Martin Lederman, both now in the Obama administration’s Office of Legal Counsel. The problem with Bush’s signing statements were not that they expressed constitutional reservations about laws passed by Congress, but that they reflected “the unjustifiable arrogation of power” that Bush asserted in office.

Given the officials that populated the Office of Legal Counsel in the Bush years, it’s not surprising that his signing statements may have crossed the line from legitimate reservations to unauthorized power grabs. Obama, who so far hasn’t argued for a “Unitary Executive” or other theories of far-reaching executive power, seems to be issuing statements that at least on their face comport with generally accepted understandings of the law.

Still, his first signing statement, limiting executive officials’ communications to Congress, illustrates the potential problem. In signing the bill, which prohibits executive officials from preventing or punishing government employees’ communications to Congress, Obama added: “I do not interpret this provision to detract from my authority to direct the heads of executive departments to supervise, control, and correct employees’ communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential.”

The Brennan Center for Justice at New York University called that “a strike against transparency.” Noting that the law was written to protect government employees who blow the whistle on government misconduct, “allowing the heads of executive branch to ‘control’ the employees’ communications defeats the very purpose of the communications,” and thwarts Congress’ ability to exercise effective oversight. Moreover, notes the Brennan Center, the signing statement could have a chilling effect against potential whistleblowers, leaving them open to retaliation whenever the agency decides that the information revealed was “confidential.”

So Obama’s signing statements might not be unlawful, but at least some of them are politically questionable. Then again, they’re not really all that surprising. As Andrew Cohen of CBS News put it back in March when Obama issued his first of many such statements: “If you were hoping that the Obama team would come into the White House and aggressively undercut its own power it’s time to change dreams.”

[T]he stimulus bill fails to adequately protect employees of government contractors, who are in the best position to blow the whistle on fraud and abuse of taxpayer money. The Senate version of the bill also doesn’t protect federal employee whistleblowers — an odd oversight given that state and local employees are protected. And neither version explains how the government is going to ramp up its own hiring quickly enough to oversee and coordinate all these new government contracts.

Today, President Obama took a big step toward rectifying these problems when he signed the Federal Enforcement and Recovery Act of 2009 (pdf) into law, extending broad new protections for employees of federal contractors and subcontractors who shed light on fraud.

The National Whistleblowers Center released a statement praising the new legislation:

This new law fixes problems in the False Claims Act, extends whistleblower protections to those who work for contractors and provides new funds for the government to investigate fraud.  Most significantly, the Act overturns the recent Supreme Court decision in Allison Engine,  which created a major loophole allowing government subcontractors to escape liability under federal anti-fraud laws.

“This is a great day for whistleblowers and a bad day for those who would defraud the government,” Stephen M. Kohn, Executive Director of the NWC.

“President Obama has taken a significant first step in changing America’s whistleblower laws.  We hope he continues to fulfill his campaign promises on this issue,” Kohn stated.

“Congress and the President did the right thing.  Billions and billions of dollars in new government spending has been authorized.  The taxpayers need the strongest possible anti-fraud laws in order to prevent financial recovery monies from being looted.  Every major study documents that whistleblowers are key to fraud detection.  This law is designed to encourage whistleblowers and reward them for their sacrifices.” Kohn added.

Among other provisions the new law:

• Fixes the loophole which allowed companies to use subcontractors to escape from liability under federal anti-fraud laws;
• Extends whistleblower protection to contractors, sub-contractors and agents who report fraud.
• Eliminates the requirement for “specific intent” created by the Allison Engine Supreme Court decision. Previously the Supreme Court required proof that a sub-contractor specifically intended to defraud the government in addition to showing a certification was false. Now it will be possible to sue under the False Claims Act if a subcontractor knowingly uses a false statement and obtains payment. This eliminates the ability of a sub-contractor to hide behind a prime contractor in False Claims Act cases.
• Permits whistleblowers to expose fraud whenever Government money is at stake. This provision in the law is a rebuke to a decision issued by Chief Justice John Roberts, when he served on the federal appeals court. In that case, Totten v. Bombardier Corp., Judge Roberts ruled that taxpayers could not recover for fraud committed against Amtrak, even though it was the taxpayer who paid the final bill.

“We are especially happy that the new law will extend whistleblower protection to independent contractors, sub-contractors and all those who risk their career to expose fraud.  No company should be allowed to hide behind loopholes in the law to rip off the taxpayer,” Kohn said.

Well, what exactly does that mean?  What is “properly privileged or otherwise confidential”?

Yesterday, a coalition of good-government groups wrote to President Obama asking him to clarify, saying that his statement could be read as a warning to federal workers against acting as whistleblowers by communicating unclassified information to Congress. And that would contradict their legal rights.

The coalition, which includes such groups as the ACLU, American Federation of Government Employees, and Government Accountability Project, asked Obama to endorse legislation that would protect from retaliation federal employees who expose waste, fraud, abuse, suppression of federal research, and threats to public health and safety, and give them the right to a jury trial. The groups also asked that the president direct federal agency heads to institute “no-retaliation” policies for employees.

As I’ve written before, the stimulus bill, despite its many attempts at transparency at accountability, strangely neglected to fully protect federal employee whistleblowers. Watchdog groups hoped those protections would be passed in some other legislation, but so far they haven’t, and the president’s signing statement appeared to weaken the minimal protections that federal employees already have.

In their letter, the coalition — which otherwise praises Obama for saying during the presidential campaign that he’d support whistleblowers and for his executive orders and memoranda concerning open government and the Freedom of Information Act — asked the president to make clear that pulling the rug out from under federal employee whistleblowers is not really what he meant to do.

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As I reported earlier, that protection was left out of an earlier version of the bill, leaving employees of the contractors that are handling billions of dollars of stimulus money vulnerable to being fired for reporting misconduct within their company. An amendment by Senator Claire McCaskill fixed that problem.

The final language is here.

Still, federal employees, despite almost a decade of internal congressional wrangling about the problem, remain wholly unprotected. Although Reps. Chris Van Hollen (D-Md.) and Todd Platts (R-Pa.) had proposed a bi-partisan provision on this that the House had adopted, the Senate conferees rejected it, apparently over concerns that providing protections for intelligence employees could somehow end up revealing classified information if they brought retaliation claims.

Tom Devine, legal director for the non-profit Government Accountability Project, is hoping to see federal employee protections in the near future. (There’s a bill on this already pending in the Senate, though as it stands now it still wouldn’t cover intelligence workers or provide jury trials.).

“It is not too late for accountability,” Devine said in a statement released today. “After nearly ten years of hearings and votes, there is no excuse to spend nearly a trillion dollars without safe passage for federal employees who risk their careers to keep it honest.”

Congress could still lock in federal whistleblowers protections before the money starts getting spent in 120 days, he said, adding: “The politicians owe it to the taxpayers.”

As the Project on Government Oversight put it in a statement this afternoon: “Accountability got mugged today when congressional leaders stripped federal whistleblower protections from their compromise ‘stimulus’ bill.” POGO pledged to keep fighting the good fight.

As I wrote earlier, the two major whistleblower protections that were missing from the Senate bill were protections for federal employees who reported wrongdoing to the government, and protections for government contractor employees who reported wrongdoing to their supervisors.  Although we haven’t seen the exact language yet, early rumors have it that the provisions of Sen. Claire McCaskill’s (D-Mo.) amendment adding protections for government contractor employees were included in the final language.

The sticking point on the federal workers may be, as I explained before, the strong opposition from Republicans to providing whistleblower protection to intelligence employees.

McCaskill has introduced a whistleblower amendment — S.AMDT. 196 — to the stimulus bill. Although the amendment isn’t yet available on the Library of Congress’ online legislative database, THOMAS, a press release from the National Whistleblowers Center said the amendment “includes protections for all companies, state and local governments that receive any stimulus money. It provides for inspector general investigations, gives employees the right to jury trials, and requires all companies to inform employees of their whistleblower rights.”

“The McCaskill amendment is an absolutely invaluable component of the stimulus bill to ensure that taxpayer dollars are protected from fraud, waste, and abuse, ” said NWC President Stephen M. Kohn, preside in the release.

NWC Advocacy Director Lindsey Williams assures me that the bill covers internal whistleblowing by employees within their own companies — which was the subject of TWI’s story. But strangely, it does NOT include federal employees. They still remain unprotected in the Senate version of the bill, though whistleblower advocates are hoping that will be added during a joint House-Senate conference committee, since protection for federal employees was finally included in the House bill.

Protection for federal employee whistleblowers has become a point of contention among some Republicans, who claim that protecting whistleblowers within the federal intelligence agencies would endanger national security. However, I can’t see why classified intelligence information couldn’t be protected from public disclosure, and made available only to a congressional committee or inspector general that needed to review it, as is routine in courtroom cases and other situations where classified evidence is at issue.

Like the Bush administration’s broad use of the “state secrets” privilege to protect executive conduct from judicial scrutiny, this big concern with protecting executive authority on intelligence secrets once again seems to be placing executive secrecy — from other branches of government — over fiscal and legal accountability.