Potentially Massive Change in War Powers

[Ed. Note: I’m stepping a little out of my normal practice of reviewing and commenting only on official executive actions with this post, because when I saw the brief news report (see link below) it occurred to me if the bill passes as amended by the House Appropriations Committee, this president will have much less freedom to “authorize and fight wars” than either of his two most recent predecessors.]

What am I talking about?

Today, according to a report published by The Week (posted 12:30 p.m. ET), the House Appropriations Committee passed an amendment to the Defense Appropriations Bill of 2017 proposed by Rep. Barbara Lee, CA, that repeals the Authorization for Use of Military Force (AUMF) (Public Law 107-40) that was passed by Congress in the immediate wake of September 11, 2001. That law has been the basis for all war actions since it was enacted – used by both George W. Bush and Barack Obama to execute military actions in several places around the world. In effect, it was congressional authorization to use military force against terrorist activities, a.k.a. the “War on Terror”. Both the original law and the current amendment (photo of it is in The Week article cited above) are quite brief, so it does not take long to see what this is about.

Based on a Tweet by Rep. Lee, she appeared to be surprised it passed the full committee. The bill, along with this amendment, will be debated openly on the floor of the House of Representatives. Just getting this to the full House is a major change with enormous consequences.

At the time the AUMF passed, I believed it was a colossal overreaction to the 9-11 events and I am extremely pleased that at least the House Appropriations Committee is ready to reclaim the power of Congress to declare war instead of abdicating it to the president. It is long overdue to require a full, congressional debate before sending military forces into any kind of war.

The prospect of this law being repealed is so unexpected I’m having trouble wrapping my head around what the full ramifications would be.

What are the chances it will pass the full House? Will the Senate go along? If it reaches the president’s desk, will he veto the whole defense funding package just to keep that provision?

What precipitated the Appropriations Committee action to approve the repeal amendment? According to my count, the committee membership has 30 Republicans and 22 Democrats, (and of course, chaired by a Republican) which means the Republicans could easily have kept the amendment from passing. Does this mean even Republicans are concerned about this president having that level of power? Does the escalation in Syria have anything to do with this committee vote?

So far, I have not found online a breakdown of who on the committee voted for/against the amendment, but I hope it will be available at some point. It would be very interesting to see just who supports the repeal.

Needless to say, I will be watching for other news reports about this important amendment and its progress through the bill’s approval process.

Update June 30, 2017:

Two items to add: 1) Representative Lee was the only person to vote against the original AUMF in 2001, and 2) the vote by the Appropriations Committee yesterday was a voice vote and it passed nearly unanimously. From the video clip I saw of the vote, it sounded like one faint no vote voiced.

Comey Firing, Intel Leak and More

For several days I’ve been mulling over what I might say about this presidential action – the firing the FBI director. Although when I started this blog last November I did not think about hirings and firings as part of what I would review, now it seems obvious that this type of presidential action can be even more consequential than the other official acts such as executive orders, memoranda, or proclamations.

With this president, it is going to be important to pay some attention to nominations, hirings and firings. His consistent obeisance to autocratic governance demands close scrutiny of everything he does.

Needless to say, the firing of the FBI director has received voluminous media coverage. And, it will continue to be a central story for some time to come as part of the Russian hacking of the election investigations. What more is there to say than what is already being said? Maybe calling the firing of Comey a clear signal that autocratic rule is a real and present danger is not a completely original statement, but I do not think enough journalists are connecting the dots yet.

One of the best writers on authoritarianism I follow, Masha Gessen, has written another excellent article entitled The Autocrat’s Language. It is well worth reading for a better understanding of what we are encountering in this presidency.

I would also like to see more serious treatment of the total unfitness of this man to serve in any capacity of government. For some reason, the media are reluctant – too much so, in my opinion – to delve into the mental health issues. One reason seems to be they feel like they have to follow the ethics rules of the mental health profession (not diagnosing a person who is not a patient) or the “Goldwater Rule”. That is an utterly bogus argument. Journalists do not have to be professionals in another discipline to write about it. Even if more journalists would write about the psychologists and psychiatrists who have publicly declared POTUS 45 to be a malignant narcissist or otherwise mentally ill, it would help. It is important for more of the general public and especially more members of Congress to be better informed on the grave dangers we now face because of a mentally ill man in office.

I’ve written some earlier about this here, but I have kept a now three-week old article about mental health professionals’ comments at a Yale conference in my Pocket list so when I got back to writing about this topic I would have it available as a reference. It confirms my own observations from following election coverage last year and myriad journalists, writers, etc. since. This man is mentally incapable of any semblance of normal behavior.

Just yesterday a different speculation surfaced again. It is not the first time I have seen concern about POTUS 45 having advancing stages of Alzheimer’s disease, but maybe with this speculation we will finally see more journalists beginning to delve into the mental health angle.

The recent blurting out by POTUS 45 of some “code-word” intelligence to the Russians in the Oval Office is a prime example of an unhealthy mind, whatever the illness, that is a serious danger to the nation and in fact to civilization. [Ed. note: It looks like I may need to add another category of presidential actions for monitoring – unilaterally declassifying classified information.]

POTUS 45 should never have been nominated, let alone elected. It is imperative that we as citizens continually contact our senators and representatives to urge their action to initiate proceedings for impeachment. Given that Republicans hold the power positions right now, they are the ones we need to keep reminding as forcefully as we are able that they are responsible to the nation as a whole not just their constituents or “base”. Nothing short of the survival of this democratic republic is at stake. We must not wait for the 2018 election to “sort things out”.

Attack on Syrian Air Base

The official report to Congress of the military action in Syria, as required by law when a president takes unilateral military action, is finally available for public view. In it the president cites the War Powers Resolution (Public Law 93-148) as his authority for taking this action.

After reading the resolution cited, I do not believe this action – bombing property in a sovereign nation not currently at war with the United States – is covered. The three tests for a president to take action are: 1) after declaration of war, 2) specific statutory authorization, or 3) a national emergency created by attack on the United States, its territories or possessions, or its armed forces. I do not believe any of these apply in this case.

While the use of poison gas is never justifiable, this military action response is, in my view, not constitutional and also may violate international law. It certainly violates the U. N. Charter.

An early review of the legality of this action written by Marty Lederman on his blog dated April 6, 2017 (and posted just a couple of hours after the incident itself) is a useful analysis of the legalities in this instance. The nuances discussed in his post are quite interesting, as he cites other colleagues and their points of view, including Harold Koh, who believes there is now a “customary exception” to the U. N. Charter provision for humanitarian reasons.

At this point, I am not persuaded the military actions in Syria ordered by POTUS 45 are legal. If they are acceptable, we are in grave danger for yet another war to erupt.

Official memorandum title: A Letter from the President to the Speaker of the House of Representatives and the President Pro Tempore of the Senate

Presidential Memorandum dated April 8, 2017

New Office of Innovation

I find the executive order creating a new Office of American Innovation to be a smoke screen allowing for access to the president by his cronies through a new official channel. Ironically, the promise to reduce the size of government is ignored by adding yet another office to the already bloated bureaucracy with this action.

The first thing to understand is this new office is cover for giving his son-in-law, Jared Kushner, full access to the power of the presidency. The title “Senior Advisor to the President” skirts the laws requiring cabinet officers and other key positions to be reviewed by the Senate via the “advise and consent” provision. Nepotism is now fully operational with no apparent will by the Republican party to even raise an eyebrow.

I do not expect anything of significance to be available for the public to see, review, or comment on as a result of the work of this office. If anything, it will only produce closely held ideas on how to dismantle the government or seriously damage its effectiveness, that we will only see or become aware of after the fact. Talk about a shadow government – this creates a shadow presidency.

This looks a lot to me like POTUS 45 does not like or want the actual job of the president and is seeking ways to delegate all the “hard stuff” so he only has to do the schmoozing and golfing.

Official Title: Presidential Memorandum on The White House Office of American Innovation

Executive Order posted March 27, 2017.

Guessed Wrong

A Federal judge in Hawaii has proven me wrong.

In my review of the updated immigration executive order (aka “travel ban”), I guessed the revised order would pass legal muster. Last night (March 15, 2017) Judge Derrick K. Watson, of the Federal District Court in Honolulu, blocked implementation of two key parts (Sections 2 and 6) of the order nation wide. Subsequently, another judge (Judge Theodore D. Chuang, of the Maryland District) issued a similar ruling.

How could I be so wrong? The simple (desperately trying not to be defensive) answer is I am not a lawyer and it is now even more clear I don’t know what I’m talking about when it comes to legal issues. Somehow, I don’t think that will keep me from expressing my own opinions in the future, however. [grin]

[Ed. note: A savvy reader might take the previous paragraph as a less than subtle “Reader Beware” warning.]

Following this case I have learned an important and fascinating lesson about the law and how it is interpreted. Previously, I did not fully understand how judges could use more than the official text of an executive order (or law for that matter) to determine whether or not it is constitutional. Obviously, Judge Watson used many other comments, documents, etc. by the president and his surrogates to conclude the primary purpose of the order was to discriminate against a particular religion. In hindsight, I can now see that I completely missed this aspect of the rulings on the original “travel ban” order. This time around, the concept of including other documents in determining intent is much more obvious.

It is actually very good to know that extended context matters with respect to interpreting the law.

Since both of the judges issued temporary restraining orders not final orders, the legal battles over the “travel band” executive order are far from over. I’ll be following them every step of the way.

For anyone interested in the details, here is the full text of the Watson ruling as published by the New York Times. Fair warning: it is lengthy.

Anything But Quiet

This is day six since the last posting of any presidential action on the White House website. In some respects, it was inevitable the orders, memoranda, etc. were going to appear less frequently, but this is a precipitous drop for this president. Could it be the president is otherwise occupied (distracted)?

I don’t intend to write about every sordid detail of this administrations’ bungling activities, so will simply mention the firing of Michael Flynn, now former National Security Advisor, and today’s news of the nominee for Secretary of Labor, Andrew Puzder, withdrawing his name from consideration under fire from an increasing number of Republicans, as examples of the incompetence, corruption, and floundering of this administration. These are just two very recent examples of the chaos that has ensued. Today’s Non Sequitur comic by Wiley Miller seems particularly appropriate. Funny, but not funny.

Because the past few weeks have been such a disaster and it promises to get worse not better, I’ve decided to expand the topics of focus for this blog, at least for a while. In addition to writing about presidential executive actions (and in some cases consequences of them such as court cases) and a few of my own comments/observations/opinions, I intend to follow two threads of media attention that appear to be growing public concerns, or at least increasing in news coverage by many media outlets. One is the mental health or mental competence of the president. The other is the numerous calls for accountability of the president or calls for outright impeachment. Neither of these are new. In fact, both have been present in the press at least since the election, but there does seem to be greater frequency of stories being written or produced on these two topics.

While at this point much of this is speculation, ultimately either situation could lead to removal from office. The Constitution does allow for removal for incompetence, presumably including mental incompetence. The Constitution also has two Emoluments clauses that could be used to impeach the president.

In a future post, I will address some of what I have read and am following regarding the president’s mental health. It is an active topic with a number of mental health professionals taking public positions in spite of the long followed “Goldwater Rule” that basically prohibits such professionals from diagnosing anyone, particularly a public figure, without actually interviewing them personally.

Today, on the emoluments issue, I will point to an interesting article by Judd Legum of Think Progress on how POTUS 45 can be held accountable for violating the Constitution without the help of the Republican Congress that is currently a major road block. The gist of the article is a report on potential legal actions that could be taken by a state’s Attorney General. What the article points out is that public official has a much better case for proving “standing” as required by law than a private individual or corporation would. Legum also suggests the state of New York might be the ideal place for this to get done. Washington, D. C. might also be a likely success location.

I do not expect the Congress to do anything about this president’s myriad conflicts of interest anytime soon, so will be watching to see if any Attorney General decides to act on behalf of the people.

 

Executive Order: Enhancing Public Safety in the Interior of the United States

Stated in the guise of public safety, this is in fact an executive order aimed at immigration law enforcement, especially expediting deportation of illegal aliens. It appears to be an attempt to push enforcement of immigration law beyond any normal interpretation, limited only by the phrase “..to the fullest extent of the law..” (meaning limits by other laws, as well as immigration laws), which may well be the only way to keep this order from being an ominous, fear-producing unilateral act.

For example, along with various cited sections of immigration law that  identify those who should be deported, the following are listed as additional targets for deportation.

…removable aliens who:

(a)  Have been convicted of any criminal offense;

(b)  Have been charged with any criminal offense, where such charge has not been resolved;

(c)  Have committed acts that constitute a chargeable criminal offense;

(d)  Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;

(e)  Have abused any program related to receipt of public benefits;

(f)  Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or

(g)  In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

I find most of those to be far beyond what would normally be considered acceptable law. For example, to treat as guilty those who are merely charged, or more ominously by some zealous law enforcement official to be determined to have committed acts that could be chargeable criminal offense, whether or not a prosecutor has determined a reasonable amount of evidence to prosecute, is in my view significant overreach of law enforcement. This executive order would give individual immigration officers the power determine if an individual poses a risk without review by anyone – a recipe for disaster and rampant abuse.

The attempt to revoke Federal funding for so called “sanctuaries” is also very likely unconstitutional and would almost certainly be tested the first time this order is invoked to do that.

There is one interesting provision I had not seen reported in various news accounts of this action. It includes this: “…to take all appropriate action to hire 10,000 additional immigration officers…”. The focus intended appears to be enforcement rather than processing of status.

Although there are so many parts of this that are alarming, from a rule of law and legal rights point of view, I will cite just one more.

Sec. 14.  Privacy Act.  Agencies shall, to the extent consistent with applicable law, ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information.

It is difficult to believe many Americans would find elimination of rights of privacy as being acceptable for anyone.

This executive order is the first one I have seen that is, in my view, clearly an abuse of the authority of the office. Our best hope is that those charged with implementation are extremely careful to follow all existing law to effectively nullify many of the provisions here and not use this order as license to attempt to overreach those laws until caught and called to account for it.

Signed and posted January 25, 2017