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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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Wait… so now we’re not declassifying the Carter Page FISA docs?

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On Thursday we were discussing the pending declassification and release of various FISA documents, text messages and FBI notes pertaining to the investigation of Carter Page. At the time I noted that every Democrat in the Gang of Eight was up in arms and demanding some sort of delay so they could review the situation. It didn’t seem as if those protests were going to carry much weight since, in the end, it’s up to the President and his intelligence advisers to determine what material is or isn’t classified. And given Trump’s history of, shall we say… determination on such matters, it sounded like a done deal.

Goes to show how much I know, huh? On Friday, the President turned around and put on the brakes, citing a variety of reasons for further review being required. (Boston Globe)

In a rare retreat, President Trump on Friday reversed himself and said he was no longer demanding that documents related to the Russia investigation be immediately declassified and released to the public.

Taking to Twitter on Friday morning, Trump said that instead of an immediate release, Justice Department officials would review the documents, adding that “in the end I can always declassify if it proves necessary.”

“I met with the DOJ concerning the declassification of various UNREDACTED documents. They agreed to release them but stated that so doing may have a perceived negative impact on the Russia probe. Also, key Allies’ called to ask not to release,” Trump wrote. “Therefore, the Inspector General has been asked to review these documents on an expedited basis. I believe he will move quickly on this (and hopefully other things which he is looking at). In the end I can always declassify if it proves necessary. Speed is very important to me — and everyone!”

So what happened in the past 48 hours to change the President’s mind or at least slow him down? I think we can rule out any concerns about a “perceived negative impact on the Russia probe.” In fact, that one is just laughable. If anything, a negative impact on the Russia investigation would probably just speed the documents out the door. Nobody seems to have much insight on this yet, but let’s just put out a couple guesses, shall we?

One possibility might be that Trump’s finally had a look at the documents himself and doesn’t find them as helpful as he’d been told. Keep in mind that as recently as Tuesday the President admitted he hadn’t even read them himself. He’s been taking the word of senior members like Devin Nunes, who really want those documents out in the public’s eye. If Trump’s legal team looked them over and found them less than helpful (or potentially even hurting his cause?) he might want to slow this train down.

Alternatively, I suppose it’s possible that some foreign allies weighed in and begged him to keep a lid on it. But who? Theresa May? Macron? Is there any way that their governments had their fingers in the pie when the Steele dossier was being shopped around and they don’t want that connection exposed? But since when has Donald Trump worried overly much about stepping on the toes of foreign leaders? Anything’s possible I suppose, but that line doesn’t sound very realistic.

Trump is leaving himself the option of releasing them “later” but that’s not usually his style. If he was ready to go with the disclosure and then put the whole operation on hold overnight, I’m willing to bet there’s something in there which wouldn’t play in his favor. And if that’s the case, “later” may turn out to be never.

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Christine Blasey Ford Hires Andrew McCabe Lawyer Who Was Iran Contra Assoc. Counsel

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The Deep State  push to block the Supreme Court nomination of Judge Brett Kavanaugh just got reinforcements with the hiring by accuser Dr. Christine Blasey Ford of  Michael Bromwich, a lawyer representing fired FBI Deputy Director Andrew McCabe and whose work in Washington goes back to the Iran Contra investigation where he served as Associate Counsel and prosecuted Oliver North. Bromwich also heads a consulting firm that specializes in crisis and government investigation communications.

Bromwich will be joining Blasey Ford’s current attorneys on the case, Debra Katz and Lisa Banks.

Michael R. Bromwich, image via Twitter avatar.

CNN Justice Department reporter Laura Jarrett, the daughter of Obama confidante Valerie Jarrett, broke the news Saturday afternoon on Twitter, “News – former DOJ inspector general Michael Bromwich has joined Christine Blasey Ford’s legal team. (Note he also represents former FBI Deputy Director Andrew McCabe). He has just resigned from his law firm effective immediately in light of objections within the partnership.” (Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP)

Jarrett added an image of Bromwich’s statement.


McCabe spokeswoman Melissa Schwartz confirmed the news, “This is true. We are proud to be new members of Team Ford cc:

Bromwich added, “I’m honored to be joining Debra Katz and Lisa Banks in representing Dr. Ford”

Schwartz is COO of the Bromwich Group, a consulting firm founded by Bromwich in 2012. Schwartz’s about page details some of her work for the Bromwich Group’s clients:

 

  • Provided strategic and tactical advice in the face of adverse media coverage;

  • Served as spokesperson for clients dealing with regulatory and congressional investigations;

  • Developed comprehensive communications plans, messaging and materials for large-scale communications initiatives;

  • Built and implemented media, internal, external and online communication and outreach strategies to tell a client’s story and shape public perception of the organization;

  • Created diverse media strategies to complement litigation settlements; and

  • Organized and directed media relations in connection with events.

Bromwich’s Twitter bio reads, “former DOJ IG; Asst US Attorney, SDNY; Assoc. Independent Counsel: Iran-Contra; independent monitor x 4; law enforcement consultant; lifelong Dodgers/Lakers fan” His about page at the Bromwich Group goes into greater detail.

Excerpt:

…Over the course of a career that has spanned more than 35 years, Mr. Bromwich has tackled a variety of challenging assignments. He has been a federal prosecutor, a special prosecutor, an inspector general, the country’s top offshore drilling regulator, the compliance monitor of major public companies and public agencies, and a lawyer who has practiced with some of the most widely-respected law firms in the country. He has been called on countless times – by public corporations, private companies, federal, state, and local governments, cabinet secretaries, and the President of the United States – to deal with issues and problems of the greatest private and public significance. “…

Blasey Ford has agreed to testify before the Senate Judiciary Committee this week, but her lawyers are still negotiating such details as which day.

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New Cruz ad: Can you believe O’Rourke is siding with the guy who got shot by a cop in his own home for no reason?

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He’s getting creamed for this, justifiably, and not only by liberals. The best part is the presented-without-comment framing, as though O’Rourke had been caught denying the Holocaust or saying something so similarly outlandish that no explanation is needed for why it should offend you.

This is the second time he’s gone after the Democrat over the Botham Jean shooting, one of the most bananas cases of lethal force by a cop you’ll ever encounter. You probably know the facts by now but in case not: A white Dallas police officer came home after a 15-hour shift at work, found the door to her apartment slightly ajar, walked in and saw a man standing in the darkness. Thinking he was a burglar, she pulled her pistol, gave him “verbal commands” to freeze, then fired when he didn’t comply. He died. When she turned on the lights she realized it wasn’t her apartment at all; she had entered the unit directly above her own, which had an identical layout. The “burglar,” a black man, was in his own home, not hers.

This is the cop’s own version of events, let me stress. Neighbors claim they heard a woman yelling “let me in” before the shots were fired and there’s reason to believe that all doors in their apartment complex shut automatically, eliminating the possibility that the cop arrived to find “her” door open a crack such that she could breeze in without meeting resistance from the lock. Even the cop doesn’t claim that the victim, Botham Jean, was doing anything wrong. The narrative that’s *most* favorable to her, her own self-serving account, is that she strolled into another person’s home and ended up blowing him away, falsely believing she was in her own pad and that he was there committing some sort of crime. She’s been charged with manslaughter but the charges may be increased to murder.

And the kicker, as O’Rourke notes in the clip, is that somehow the fact that the dead man had marijuana in his apartment was leaked afterward to the media even though it had nothing to do with the incident. I wrote about that 10 days ago, struck by the fact that left and right seemed to react to the leak the same way. There was bipartisan outrage that a person who’d been gunned down in his own home was now being smeared postmortem as a criminal, apparently to try to make the cop’s actions — which were based on a horrendous misjudgment by her own admission — seem reasonable-ish.

So which part of what O’Rourke said is so outrageous that Cruz thought it would work as-is as an attack ad for his own campaign? What’s the message here? Two possibilities:

1. Anyone who’d take sides against a cop in a shooting, irrespective of the facts, is anti-cop.
2. Anyone who’d take sides against a white cop in the shooting of a black victim, irrespective of the facts, is anti-white.

That’s a very Trump-y message. (Some critics wondered whether it’s a coincidence that the video of O’Rourke that Cruz chose for his ad just happens to involve a cheering black audience, per point two.) A “constitutional conservative” who’s naturally skeptical of state power, which is how Cruz sold himself throughout the tea-party era and beyond, shouldn’t naturally gravitate to white identity politics and mindless respect for armed authority in analyzing a case in which an agent of the state killed an innocent man for no good reason. But this is how Republican politics operates in the Trump era, or at least how Cruz thinks it operates. That’s also why he’s been hammering O’Rourke for defending the NFL players who kneel during the anthem to protest police brutality. Same underlying themes as in this new ad: Blacks are complaining about how they’re being treated by bad white cops and the Democratic candidate sure is eager to side with them. He’s not “one of us.” Which leaves the question hanging in the air: Who’s the “us” he’s talking about? In the NFL example you could say it’s people who respect the flag and the national anthem. Who’s the “us” in this new ad that O’Rourke is supposedly against, though?

Bear in mind that a white cop was convicted of murder in the Dallas area for killing an unarmed black teen just within the past month. Inspired by that and the Botham Jean case, David French wrote recently about how his own view of police shootings has changed over time. He too used to approach it as an “us vs. them” issue, with the cops on one side and the Bad People on the other. It isn’t.

Truth be told, the way I covered this issue in 2015 and much of 2016 shed more heat than light. Here’s what I did. I looked at the riots in Ferguson, Milwaukee, Baltimore, and Charlotte, the extremism of the formal Black Lives Matter organization (which referred to convicted cop-killers as “brothers” and “mama” and said its explicit goal was to “disrupt the western-prescribed nuclear family structure”), and the continued use of debunked claims, including “hands up, don’t shoot,” and I focused on these excesses largely to the exclusion of everything else.

Yes, I used all the proper “to be sure” language — there are some racist cops, not every shooting is justified, etc. — but my work in its totality minimized the vital quest for individual justice, the evidence that does exist of systematic racial bias, and I failed to seriously consider the very real problems that contribute to the sheer number of police killings in the U.S.

To put it bluntly, when I look back at my older writings, I see them as contributing more to a particular partisan narrative than to a tough, clear-eyed search for truth.

That’s the most charitable possibility for what Cruz is after here. The standard “partisan narrative” when a cop shoots an unnamed man is that the left sides with the victim and the right sides with authority. The new ad is merely another way, however cloddish, of signaling to Texas’s Republican majority how left-wing O’Rourke is. Look, he’s pushing the message that Team Blue typically pushes, not the one that Team Red does! He’s not one of us. Which really only circles you back to French’s point: Why should we require someone to defend a cop in every circumstance to qualify as “one of us,” including and especially a case where the cop herself admits she screwed up?

It’s commonly accepted (including by me) that Cruz isn’t really in danger of losing the Texas race. O’Rourke’s giving him a scare and no doubt the final margin will be tighter than most elections in Texas usually are, but Democrats simply don’t have the numbers to pull this off. If that’s so, though, why would Cruz stoop to this? Why take an innocent dead man and use O’Rourke’s justifiable outrage on his behalf and use it as some lowest-common-denominator Trumpian play on race and authority a la Trump’s infamous newspaper ad back in the day about the Central Park Five? It’s no sure thing that populist Republicans will respond well to this ad; like I said up top, they jeered the attempt to smear Jean after his death by leaking that he had weed in his apartment. But it’s unquestionably true that Cruz believes populist Republicans will respond well to it. Who does he think his base is at this point? What lessons did he take about the Republican electorate from his destruction at Trump’s hands in 2016?

My suspicion is that Cruz took the presented-without-comment approach to what O’Rourke said not because he felt it was so outrageous that it didn’t require further comment but rather the opposite. He couldn’t mount a good-faith argument against it but he knows, or believes, that many righties will find something offensive in it — “Beto hates cops,” “Beto hates whites” — so he’s running it up the flagpole for those people to salute. Am I giving him too much credit in suspecting that or not enough?

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