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On the War Powers Resolution and Syrian air strikes

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The War Powers Resolution will probably be something brought up over the next week or so while people discuss the constitutionality of President Donald Trump’s airstrikes on Syria. The other discussion might be just what exactly the U.S.’ role in Syria is after UN Ambassador Nikki Haley told Fox News Sunday it was “up to Assad” on whether more strikes would happen, and promised more strikes would happen to hurt Assad if he still uses chemical weapons. All these strikes are happening despite no vote in Congress allowing the president to use the military against Assad, just like it didn’t happen in 2013 when former President Barack Obama did similar strikes and the Pentagon sent troo-err-military advisers into Syria.

The War Powers Resolution/Act is a continuous source of debate within U.S. foreign policy circles. The Constitution says in Article 1, Section 8 only Congress can declare war. Congress passed the War Powers Resolution in 1973 overriding a veto from Richard Nixon, in hopes of pushing back a little against executive overreach on issues of military action. The legislative branch was hoping to correct an abysmal mistake from 1950 where no vote on getting involved in Korea ever happened, nor was any resolution sent to Congress on the issue. The prevailing theory appears to be the War Powers Resolution allows the President to involve American troops in any combat, so long as he or she tells Congress about it within 48 hours. This comes from Section 4 of the act.

(a) Written report; time of submission; circumstances necessitating submission; information reported. In the absence of a declaration of war, in any case in which United States Armed Forces are introduced—

(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;

(2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or

(3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation;

the President shall submit within 48 hours to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report, in writing, setting forth—

(A) the circumstances necessitating the introduction of United States Armed Forces;

(B) the constitutional and legislative authority under which such introduction took place; and

(C) the estimated scope and duration of the hostilities or involvement.

There’s also Section 5b which includes has the 60-90 day timeline, typically discussed as to how long U.S. military action can go on.

(b) Termination of use of United States Armed Forces; exceptions; extension period

Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 1543(a)(1) of this title, whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.

But one thing Michigan Congressman Justin Amash explained on Twitter, is the fact Section 2 tends to be ignored in public discussion (emphasis mine).

PURPOSE AND POLICY

SEC. 2. (a) It is the purpose of this joint resolution to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgement of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations.

(b) Under article I, section 8, of the Constitution, it is specifically provided that the Congress shall have the power to make all laws necessary and proper for carrying into execution, not only its own powers but also all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof.

(c) The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

The question now becomes whether Section 4 runs askew of Section 2. The former could be read as allowing the President to get troops involved in combat, then inform Congress of what’s going on. I believe this was something addressed in Clear and Present Danger by Tom Clancy where the Army Rangers were involved in an attack on a drug cartel without the knowledge of Congress. Clancy’s interpretation (and he was much smarter than I’ll ever be) was the traditional one regarding Congress knowing when troops were going into combat.

Yet, it’s possible the actual interpretation involves troop movements, not necessarily inserting them into combat. Example: If Trump had told Congress he was sending a carrier group to the Arabian Sea, then it would fall under the auspices of the War Powers Resolution. The same could be said if more troops were headed to Iraq or Afghanistan, where the U.S. still has active wars, or if there was an increase in troops in any of the other U.S. bases on foreign soil. It would still be up to Congress to approve whether the U.S. gets involved into any offensive action, say, airstrikes in Kosovo or Syria before those strikes could begin.

This is only a possible interpretation, not necessarily what the resolution actually means but it certainly seem plausible, given the constraints laid out in Section 2 and the Constitution itself. It’s why Trump-and, previously, Obama may have violated the War Powers Resolution and the Constitution by involving the U.S. military in offensive actions against Syria, without authorization from Congress. There needs to be a vote in Congress as soon as possible on whether the military should be involved in Syria (it shouldn’t). Senator Bob Corker claimed to be working on a new Authorization for Use of Military Force, but the text has yet to be released. He should do this sooner, rather than later, so Congress can debate and vote on the issue.

Whether they will is anyone’s guess.

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Fearless Girl to stand on her own, at least for now

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Fearless Girl is finally going to move and, at least for now, she won’t be taking Charging Bull with her. The decision to move Fearless Girl a few blocks away to a position opposite the New York Stock Exchange was prompted by concerns about crowds and traffic. From the NY Daily News:

The much-beloved statue will depart her perch opposite the iconic Charging Bull to stare down some new scenery: The New York Stock Exchange, the Daily News has learned…

The move comes as the city and the company sought a more permanent home for the popular statue — and one with fewer safety issues than her current spot in a Bowling Green median, which gets overrun with onlookers who often stand in the busy street…

Due to safety concerns about traffic — and potential terror attacks using cars — the city said it was also exploring moving the Charging Bull itself.

But while Fearless Girl will move by year’s end, there are no immediate plans to move the bull — the city said Wednesday it was “exploring” putting it somewhere else downtown.

However, there’s really no doubt that Fearless Girl doesn’t work without some opponent to be fearless about. So will staring down the New York Stock Exchange be enough? The NY Times reports that Mayor de Blasio really wants to keep the statues together:

A spokesman for Mr. de Blasio said that it was important to the mayor, who has posed with “Fearless Girl” and spoken of its meaning to young women and girls, to keep the two works together.

“The mayor felt it was important that the ‘Fearless Girl’ be in a position to stand up to the bull and what it stands for,” said Eric F. Phillips, the mayor’s press secretary. “That’s why we’re aiming to keep them together. The bull has also always been a traffic and safety issue the city’s hemmed and hawed over. The moves achieve a few goals.”

Artist Arturo Di Modica, the creator of Charging Bull, has said his figure was meant to be a symbol of “freedom in the world, peace, strength, power and love.” It was, of course, a symbol of America’s economic strength and, implicitly at least, of the power of capitalism itself. Di Modica felt the addition of Fearless Girl turned his optimistic statue into a corporate comment on gender politics and, worse, a threat to be defied.

It’s interesting that the progressive Mayor is so eager to maintain that reinterpretation of Di Modica’s art. In fact, I think his press secretary’s statement goes a long way to proving Di Modica’s point about the attempt to reinterpret his work. Fearless Girl isn’t just standing up to the bull but also “what it stands for.” Why would Mayor de Blasio want to do that? A statement he made last year to New York Magazine might give a hint:

I think there’s a socialistic impulse, which I hear every day, in every kind of community, that they would like things to be planned in accordance to their needs. And I would, too. Unfortunately, what stands in the way of that is hundreds of years of history that have elevated property rights and wealth to the point that that’s the reality that calls the tune on a lot of development. . . .

Look, if I had my druthers, the city government would determine every single plot of land, how development would proceed. And there would be very stringent requirements around income levels and rents. That’s a world I’d love to see, and I think what we have, in this city at least, are people who would love to have the New Deal back, on one level. They’d love to have a very, very powerful government, including a federal government, involved in directly addressing their day-to-day reality. [Emphasis added.]

Fearless Girl’s placement opposite Charging Bull goes well beyond standing up for more women in high finance jobs and boardrooms (the alleged point of the statue). The Mayor who praised the “socialistic impulse” toward government planning is doing is best to change one of the best-known symbols of America’s free market into a threat to be defied. I really don’t think that’s an accident.

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Whoa: DOJ Inspector General sends criminal referral for Andrew McCabe to U.S. Attorney

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You know who you can thank for this? James Comey! He’s the one who initiated the IG investigation into leaks to the WSJ in October 2016 about the FBI’s investigation of the Clinton Foundation, or so he claimed to the Daily Beast. Which makes this tweet from January seem … awkward now:

Comey will be on Jake Tapper’s show for an interview within the hour. I wonder what the first question will be.

The Justice Department inspector general referred its finding that former FBI Deputy Director Andrew McCabe repeatedly misled investigators who were examining a media disclosure to the top federal prosecutor in D.C. to determine whether McCabe should be charged with a crime, according to people familiar with the matter…

Lying to federal investigators is a crime punishable by up to five years in prison, and some legal analysts speculated in the wake of the report that the inspector general seemed to be laying out a case for accusing McCabe of such conduct. The report alleged that one of McCabe’s lies “was done knowingly and intentionally” — which is a key aspect of the federal crime

Ironically, Comey — who appointed McCabe to his post as the No. 2 official in the FBI — stressed in his book released this week the importance of telling the truth to federal investigators and holding accountable those who do not.

“People must fear the consequences of lying in the justice system or the system can’t work,” wrote Comey in his new book, per WaPo, and how here we are. Will the next McCabe fundraising webathon be for bail money?

Comey reiterated yesterday on “The View” when asked about McCabe that lying to the feds isn’t okay. McCabe and his lawyer didn’t like that:

“In his comments this week about the McCabe matter, former FBI Director James Comey has relied on the accuracy and the soundness of the Office of the Inspector General’s (OIG) conclusions in their report on Mr. McCabe. In fact, the report fails to adequately address the evidence (including sworn testimony) and documents that prove that Mr. McCabe advised Director Comey repeatedly that he was working with the Wall Street Journal on the stories in question prior to publication. Neither Mr. Comey nor the OIG is infallible, and in this case neither of them has it right.”

The wrinkle here is that the IG’s recommendation is based partly on a test of credibility between McCabe and Comey himself. McCabe claims that when Comey asked him in October 2016 whether he had authorized any info on the Clinton Foundation probe to be released to the WSJ, McCabe told him yes, that he was working with the paper to correct inaccuracies in the story. Comey, however, told the IG that McCabe told him he didn’t know who’d been talking to the paper. Upon further investigation, the IG agreed with Comey. Which is to say, if this turns into a prosecution — and there’s no guarantee that it will — the star witness against Andrew McCabe might be … James Comey.

The statute here, by the way, is the same statute that Mike Flynn pleaded guilty to violating: 18 U.S.C. 1001, which makes it a crime to lie to federal officials. The U.S. Attorney will be under heavy political pressure to indict McCabe in order to show that the “no lying” rule applies to its own officers just as much as it does to Trump’s aides. Although I wonder if Trump might inadvertently let them off the hook by tweeting something celebratory about the McCabe referral, leaving the U.S. Attorney to argue that the president’s endless Twitter attacks on McCabe have made it impossible for him to get a fair trial. As such, he might not be charged or, if he’s amenable, he may be allowed to cop a plea with a wrist-slap penalty. If anything is capable of driving home the lesson to Trump that he shouldn’t be tweeting about pending legal matters, watching McCabe walk free because of his big mouth might be it.

Nah, who are we kidding. Nothing will drive that lesson home. Exit question: What if McCabe and Michael Cohen end up as cellmates in the federal pen? I smell sitcom.

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Trump: Feds will not pay for Jerry Brown’s National Guard ‘charade’

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The war of words between President Trump and California Governor Jerry Brown over illegal immigration heated up again this morning. Just yesterday Gov. Brown suggested 400 National Guard troops would be headed for the border and that the federal government had agreed to pay for it. But this morning President Trump tweeted this:

This all started a couple weeks ago when President Trump announced that, since funding for his border wall was stalled, he was calling on states to send National Guard troops to the border. A week later, there was another surprise when Gov. Jerry Brown announced that he would be sending 400 National Guard troops to the border to fight smuggling and drug trafficking. However, Brown also drew a line at getting involved in preventing illegal immigration saying, “It will not be a mission to round up women and children or detain people escaping violence and seeking a better life. And the California National Guard will not be enforcing federal immigration laws.”

That made it a bit unclear what California’s troops were actually going to do. National Guard troops are not allowed to arrest people at the border. That’s the job of Customs and Border Protection (CBP) officers. Troops from other states were using surveillance equipment and notifying the border patrol if they saw someone trying to cross the border. They were also given jobs doing paperwork and other support roles aimed at freeing up more border patrol officers. But earlier this week the Associated Press reported that California was rejecting most of the actual jobs the border patrol wanted the troops to do.

The state informed federal officials it will not allow its troops to fix and repair vehicles, operate remotely-controlled surveillance cameras to report suspicious activity to the Border Patrol, operate radios and provide “mission support,” which can include clerical work, buying gas and handling payroll, according to officials with knowledge of the talks who spoke condition of anonymity because they were not authorized to discuss the matter.

The next day, California officials said they were not backing away from sending troops to the border even as a CBP Deputy Commissioner confirmed the core of the Associated Press report, i.e. Gov. Brown would not let his troops do a number of support jobs for the border patrol.

Wednesday, Gov. Brown released a statement saying 400 troops were headed to the border, “after securing the federal government’s commitment this week to fund the mission.” That certainly makes it sound as if some agreement has been reached. But if so, Trump’s tweet this morning appears to be rejecting that agreement. So far, there has not been a response from Gov. Brown clarifying whether or not his National Guard troops are still headed for the border.

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