Cyber Command

I learned something about the military command structure as a result of reviewing the most recent memorandum. I’m sure most of us have heard of CENTCOM, but now I know more what it is. Various command operations are designated “unified” under central command because they call for cooperation of several or all of the armed forces branches.

Yesterday, the Cyber Command unit was designated as a new unified command. That makes sense in our current world of cyber activity. I suspect McMaster and Kelly were key players in instigating this change.

Official Title and Link: Presidential Memorandum for the Secretary of Defense

Memorandum dated August 18, 2017

Manufacturing Base

While this order appears to be routine, it may turn out to be much more than that. Essentially it orders the study of manufacturing and the defense industrial base. Within 270 days a report is to be produced that identifies problems and recommends actions to remedy the problems, including possible legislation.

I suspect the intent is to eventually create more ways for this administration’s cronies to benefits from defense spending.

Official Title and Link: Presidential Executive Order on Assessing and Strengthening the Manufacturing and Defense Industrial Base and Supply Chain Resiliency of the United States

Executive order dated July 21, 2017

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.

Whistleblower Protection at Veterans Affairs

I can certainly support what this order purports to be – improved accountability and increased protection for whistlblowers. In fact, this ought to be important for all of government.

This executive order creates a new office of Accountability and Whistleblower Protection in the Department of Veterans Affairs. Whether or not it makes any difference, remains to be seen. It is unlikely we will know for years if this was useful.

My current skepticism leads me to believe it will not have much impact.

Actually, the timing of this signing leads me to believe it is just part of the flurry of activity trying to create an impression that much is being accomplished in the “first hundred days”.

Sad to say, issuing executive orders and memoranda are not results in the usual sense of the word.

Anyone else catch the irony in this order? Does this administration really want to empower whistleblowers when they are so intent on finding and prosecuting the “leakers”?

Official Title: Presidential Executive Order on Improving Accountability and Whistleblower Protection at the Department of Veterans Affairs

Executive Order dated April 27, 2017

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

Delegation of Presidential Authority

This evening on a whim I decided to check to see if any new presidential actions were taken today and I was a little surprised to find a new memorandum. It is so brief, I am going to quote it in its entirety here.

MEMORANDUM FOR THE SECRETARY OF STATE

SUBJECT:         Delegation of Authority Under the National Defense Authorization Act for Fiscal Year 2017

By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 301 of title 3, United States Code, I hereby order as follows:

I hereby delegate to the Secretary of State the functions and authorities vested in the President by section 3132 of the National Defense Authorization Act for Fiscal Year 2017 (Public Law 114-328) (the “Act”).

Any reference in this memorandum to the Act shall be deemed to be a reference to any future Act that is the same or substantially the same as such provision.

You are authorized and directed to publish this memorandum in the Federal Register.

DONALD J. TRUMP

After looking up section 3132 of the National Defense Authorization Act, I found it refers to nuclear proliferation, quoted below.

Sec. 3132. Updated plan for verification and monitoring of proliferation of nuclear weapons and fissile material.

I don’t know what to make of this action. It appears to be a routine delegation of the monitoring process to the Secretary of State. If so, why not the Secretary of Defense?

I am hoping tomorrow there will be media coverage of this memorandum and maybe some sort of explanation of it to see if my reading is accurate.

Official Memorandum Title: Presidential Memorandum on the Delegation of Authority Under the National Defense Authorization Act for Fiscal Year 2017

Posted March 20,2017.

Presidential Memorandum Plan to Defeat the Islamic State of Iraq and Syria

One item to note immediately in the title is a shift in language. The previous administration (and Democrats in general) used the term ISIL (Islamic State in Iraq and the Levant) rather than ISIS. (Here is a useful article to explain why and what the differences are.) I suspect the use of ISIS in this memorandum may simply be because this president wants to use the popular name that Republicans prefer, rather than any other reason.

The plan referred to here is to be coordinated by the newly re0rganized National Security apparatus as defined in the executive order on this same date. This “comprehensive” plan is to be developed and reported to the president in 30 days from the signing of this memorandum.

A stark observation and question: does he really believe a full and comprehensive plan to defeat ISIS can be developed in just 30 days when years have gone into the efforts to contain that organization with international cooperation?

Delusional at best.

Presidential Memorandum signed January 28,2017.