Weekly Roundup, May 7th – 13th

This week, the Fourth Circuit heard arguments in the appeal to District Judge Theodore Chuang’s preliminary injunction to the president’s revised “travel ban” order. Key testimony was provided by former Deputy Attorney General Sally Yates, who noted that she informed the president that then-national security adviser Michael Flynn could be vulnerable to blackmail. This corresponds to reports from former Obama administration officials who report that the previous president had similar concerns. Some critics have analyzed Yates’ testimony and noted several inconsistencies between her current testimony and public statements released in January. Others have seen this as a means by which we can receive insight into the inner workings of the Department of Justice. Peter Margulies considers the language of the testimony and speculates whether the intent of the argument is based on the text of the order itself. Dawn Johnsen argues that the president’s candor might have effectively surrendered his ability to rely on the judicial deference that was the norm for his predecessors.

On the heels of that testimony, however, the president sidelined media discourse for the remainder of the week by abruptly firing then-FBI director James Comey.  The move led to a week of speculation and contradictory information. Both the attorney general’s recommendation and president’s memo are publicly accessible, though the president appears to be of two minds regarding whether his decision was independent or at the behest of his advisers. Given that this firing occurred the day before a closed meeting with Russian officials, some have interpreted events as related, with others equating this as a parallel to Watergate or at least an impeachment-worthy offense. Concerns have also been raised regarding how Jeff Sessions’ recommendation might impact his request for recusal from the Russia investigations.

The Environmental Protection Agency administration has decided not to reappoint nine scientists to its Board of Scientific Counselors. It has received some attention from critics who conclude that the decisionmaking process is being filtered through a willful lack of comprehension about long-term environmental effects.


Weekly Roundup, April 30th – May 6th

The threat of a government shutdown has been averted, though it may resurface in the near future. After passing the senate, the congressional spending bill was signed and approved by the president. This could potentially prove a mere stopgap though, as this arrangement will only hold the government through September, and the president has posted online that many compromises will be reevaluated during the next vote.
While last week raised some questions regarding privacy and disclosure of surveillance, this week the Office of the Director of National Intelligence released its annual transparency report regarding the practical applications of surveillance law in 2016. Jordan Brunner provides an overview of the report’s findings, as well as some discussion of some of the major statistics. Many find it alarming that the report includes mention of over 151 million call records collected, leading others to consider whether any other number would be more appropriate.

Amid the latest round of Executive Orders, the “America-First Offshore Energy Strategy” seeks to “encourage energy exploration and production” by clearing millions of acres of offshore waters for oil and gas leasing. Some legal voices are already questioning whether the president’s powers allow him to remove protection from a previously-protected zone. While some have used this as an opportunity to project growth in mining sectors, some coal insiders suggest that the president “temper his expectations… He can’t bring them [mining jobs] back.”

At the end of the week, the House of Representatives passed the latest draft of the American Health Care Act. Alison Kodjak breaks down the text of the bill and considers what it could mean to the average citizen impacted by proposed changes. Matthew Fledler considers the potential for abuse within some of the healthcare act’s wording. John Whitesides and Sarah N. Lynch consider the bill’s construction, and ask whether any legislature that determines women’s health options ought to be constructed by an all-male group.


Weekly Roundup, April 23rd – 29th

Another executive order is facing at least a temporarily block from the judicial branch. San Francisco filed a lawsuit in January requesting an injunction against the executive order that would, in part, seek to strip federal funding from sanctuary cities declining to comply with ICE detention requests. On Tuesday, Judge William H Orrick agreed with the city and ruled that the financial threats contained within the order may be unconstitutional. Kartikay Mehrotra speculates about the ways in which this might boost California’s efforts to become a leader in the political resistance against the presidential administration. Darla Cameron has compiled a breakdown of “sanctuary cities” and their function. President Trump intends to argue this ruling in the Supreme Court.

Despite the administration’s commitment to finding funding for a border wall, the congressional spending bill inspired bipartisan discussion attempting to deflect the threat of a government shutdown. Some Republican senators dismissed the commitment entirely, stating that “There will never be a 2,200-mile wall built, period” as South Carolina senator Lindsey O. Graham did. Rob Portman (R-Ohio) seemed to take the wall discussion more metaphorically: “I think you’re going to get a down payment on border security generally.” Ultimately, Congress negotiated a spending bill which was approved by the president late in the weekend. This plan is still pending approval from the full House and Senate.

The National Security Agency released a statement announcing its intent to cease collecting an element of “upstream” communicative data to foreign targets. Whereas previous guidelines required collection “to, from, or about” a target, the NSA will eliminate “about” surveillance.  Charlie Savage provides an overview of this decision’s place in American surveillance.


Weekly Roundup, April 16th – 22nd

After the tensions with US/North Korea relations last week, all eyes have been fixed on relations with Asian officials. North Korean Vice Minister Han Song Ryol spoke in firmly military terms, noting that North Korea “will go to war if [the US] choose[s].” He also cited recent joint maneuvers between the US and South Korea as cause for alarm. In response, Vice President Mike Pence issued a counterstatement declaring the end to the “era of strategic patience” between the US and North Korea. He visited the area later in the week.

Some argue that it is legally impossible to engage in military action against North Korea without invoking retaliation from China, due to prior treaties.  This could be counterproductive in light of the administration’s recent attempts to soften relationships with the Chinese government.

The proposed border wall to separate the US and Mexico’s line has received a renewed discussion in light of budget proposals and funding allocation. Budget chief Mick Mulvaney has noted that the current priorities of the presidential administration are focused on “wall funding” and the hiring of additional immigration agents. This has prompted some to reassess what we know about the proposed costs of the wall project, which would appear to entail far more security than a monolith structure. Opponents are staunchly refusing to allow the level of funding to pass, threatening a potential government shutdown until the issue is resolved. President Trump has noted that the current state of healthcare might become a bargaining tool as this discussion progresses.

Attorney General Jeff Sessions is currently under fire regarding comments made as a guest on the April 18th edition of Mark Levin’s radio show. During a conversation which ran for nearly two hours, he addressed the issue of the “travel ban” Executive Order, which is still pending appeal after being stopped by a federal judge in Hawaii. After presenting confidence that the Supreme Court will overturn the decision, he noted that “I really am amazed that a judge sitting on an island in the Pacific can issue an order that stops the President of the United States from what appears to be clearly his statutory and Constitutional power.” The ensuing backlash has led to many responses reminding Sessions of both Hawaii’s statehood and the constitutional necessity of the United States’ separation of powers. The 9th Circuit will hear the travel ban suit in May.


Weekly Roundup, April 9th – 15th

This week, foreign policy dominated discussions. In the continued fallout from last week’s Syrian missile strike, both Shane Reeves and Ingrid Wuerth examine the text of the United Nations’ Charter to determine whether a show of US military force complies with established international law. This is a debate shared by world leaders, as Russian President Putin openly denounced the act as a “violation of the norms of international law.” Even after a midweek meeting between Putin and the US Secretary of State, international relations remain at a “low point.” Russia vetoed the United Narions’ attempt to pass a resolution condemning the chemical attack that initially sparked this conflict.

As part of the continued investigation into ties between President Trump’s staff and the Russian government, federal investigators uncovered that surveillance was approved in the summer of 2016 on then-foreign policy advisor Carter Page. The decision was reached on the basis of the Foreign Intelligence Surveillance Act.  The reporting of this information has raised additional concerns regarding the unmasking of transition aides.

Military violence has not been limited to Syria, however. A naval strike group was sent toward the North Korean peninsula, prompting an attempted missile launch which does not seem to have been a success. Amid cries for a surge in diplomacy in the middle east, the US military dropped its most powerful non-nuclear bomb on a hub of suspected ISIS activity. The military defended its tactical decision despite the caution of politicians like former Marine Corps captain Seth Moulton, who considers that some might “confuse this tactic for a strategy.”


Trump’s Syria Air Strikes: A Perverse Advance in International Law?

Are we now at war in Syria? We already were. Since 2011, the United States has trained and equipped various factions opposed to Bashar al-Assad and deployed massive force against ISIS. In 2016 alone, as Juan Cole points out, the Obama administration dropped more than 12,000 bombs on Syria. That these targeted ISIS positions is beside the point: the United States has long played a role in the Syrian conflict. A confused actor in a confusing theatre is still an actor in a theatre.

Some might argue that President Obama’s actions were counter-terrorism measures justified by the 2001 Authorization of the Use of Military Force (AUMF). But the April 6 attack was permissible under domestic law, as well: presidents have largely unfettered discretion under the War Powers Resolution (1973), which allows a president to engage in military action of limited scope and duration without congressional approval. Presidents need only report to Congress within forty-eight hours and end the action in less than sixty days. (The WPR was the legal basis for President Obama’s intervention in Libya.) The constitutional principle described in United States v. Curtiss-Wright (1936) thus tends still to hold: that the limited and enumerated powers of the Constitution apply only to domestic matters; “in international relations, the President is the sole organ of the Federal Government.” That these airstrikes were launched on a presidential whim—quite literally ordered on the way to a dinner party—is not a Trump problem, nor a lingering Obama problem, nor even a war on terror problem. It is an America problem: the direct consequence of building an enormous military machine and then casually tossing the keys to the president so that he can take it out for a joy ride whenever the mood strikes him.


Continue reading at Dissent Magazine.

Weekly Roundup, April 2nd — 8th

This week, we were forced to address the ramifications of military force as it ties into the legal and political sphere. After the latest development in the Syrian civil war ended in a gas attack that murdered civilians, a whirlwind of activity from the presidential administration followed. This culminated in a military strike in retaliation; the act violated a longstanding international agreement [[ https://lawfareblog.com/trumps-syria-conundrum ]] wherein Syria had been forbidden use of chemical warfare. This, however, prompted many to question whether the president had the legal authority to act as quickly as he did. Charlie Savage attempts to explain the breadth of presidential war powers applicable in this situation, while Jack Goldsmith and Andrew Kent consider the strike order through the lens of the US Constitution.

Despite protests to the contrary, Devin Nunes stepped down from the investigation into Russian interference of the 2016 US Election. The House Committee on Ethics released a statement confirming that Nunes is under investigation in light of “public allegations that Representative Devin Nunes may have made unauthorized disclosures of classified information, in violation of House Rules, law, regulations, or other standards of conduct.” Though many headlines have reported this as a recusal, the word has been notably missing from White House statements on the matter.

Though the oft-requested presidential tax returns have still not been made public, the White House administration released financial disclosure forms from staff members. The discussion surrounding these financials has raised discussion regarding the ways in which the current administration established itself as a collection of multi-millionaires,  including accusations that certain key staff members may not have performed due diligence in divesting themselves from potential conflicts of interest.

Litigation continues to circle around the presidency. A federal judge in Kentucky ruled against efforts to throw out a pending suit arguing that then-candidate Trump incited violence at a campaign rally in March 2016. An outstanding lawsuit alleging fraud against the former Trump University has been settled.


Weekly Roundup, March 26th – April 1st

Politics might be easily mistaken for primetime drama, given the level of web-weaving and entanglement from this past week. In the fallout of Devin Nunes’ midweek press conference, questions arose regarding the circumstances around Nunes’ intelligence reports. Amid accusations that Nunes is attempting to “cover up” a yet-undiscovered criminal activity, many have been calling for Nunes to recuse himself from heading the Russian probe. Nunes refuses to do so. Similarly, former national security adviser Michael Flynn offered to testify in exchange for immunity, an arrangement which was subsequently denied. Many reference Flynn’s financial ties to Russia as a potential source. Speculation grows stronger, as the Trump administration has been accused of attempting to prevent Sally Yates from testifying in this case. This leads some analysts to suggest that we ought to look to the 9/11 Commission as an example of a successfully bipartisan investigation.

The Government Accountability Office, a Congressional watchdog group, announced an intent to review the handling of classified material at the president’s Florida Mar-a-Lago resort, as well as the financials between the White House and Trump hotels.

A new executive order will effectively roll back many of the Obama administration’s measures to curtail climate change. Though the order was presented as an opportunity for economic growth, Larry Light presents an overview of the power industry’s trends and argues that the industry has little reason to return to coal even with fewer federal regulations in place. This order has also allowed the Dakota Access Pipeline to move forward; the BBC presents an overview of the project and the risks entailed by continuing.

Late in the week, Seattle joined a growing number of legislatively-minded cities and filed a lawsuit against the president’s “sanctuary cities” executive order. The order threatens to remove funding from cities providing sanctuary for undocumented residents. Seattle is seeking a judicial ruling to determine whether the order violates the 10th Amendment.


Weekly Roundup, March 19th – 25th

This week raced to start, with a House Intelligence Committee hearing taking center stage early Monday. During the proceedings, FBI Director James Comey confirmed the existence of an ongoing investigation regarding ties between the Russian government and the 2016 US Election, which Benjamin Wittes warns may be a herald of forthcoming criminal investigations. The concerns regarding wiretapping were dismissed, though many analysts remain wary that the discussion has hinged on particular semantics and may not be completely disclosing the full issue of intelligence leaks and a potential abuse of power. Helen Klein Murillo examines this in conjunction with perjury law, noting that the goal ought to be for “the executive branch, and the White House in particular, to share information with Congress, not just on subpoena but freely and on an ongoing basis.”

One of those concerned parties became a conflicting figure later in the week, as House Intelligence Chairman Devin Nunes delivered an impromptu press conference midweek to announce that communications from then-candidate Trump and his team were intercepted during larger surveillance practices. Given the potential disruption of what was confirmed to be an ongoing FBI case, many have speculated that Nunes cannot be considered impartial regarding the current administration. Some see Nunes’ rhetoric as damage control intended to mitigate the public relations faux pas.

Supreme Court nominee Judge Neil M. Gorsuch delivered the opening statement of his confirmation hearing before the Senate Judiciary Committee. The week’s hearings included statements on the nominee’s stances regarding abortion law and past rulings in favor of corporations. Some senators have noted an intent to filibuster the nomination entirely, leaving many to speculate about the possibility of the “nuclear option” which would allow the nominee into the Supreme Court with only a simple minority vote rather than the current supermajority requirement.

Though the travel ban has remained quiet, a new “electronics ban” was issued, limiting the carry-on items allowed on international planes from Middle Eastern and North Africa-based airlines bound toward the US and UK. Katie Reilly attempts to explain, citing precedent from prior security incidents.


Weekly Roundup, March 12 – 18th

Once again, the “travel ban” has maintained its position in the public eye. Federal judges from Hawaii and Maryland issued a nationwide order blocking the second iteration of the executive order limiting immigration from six majority-Muslim countries. The Justice Department is presently engaging in the appeals process, leaving some analysts to speculate that the judges may be overstepping their legal boundaries and ignoring due process. Given that the executive branch continues to insist that the ban is necessary, Benjamin Wittes and Quinta Jurecic analyze the potential reason behind such an aggressive judicial perspective.
It is possible that this enmity is filtering into other elements of the judicial system, as the Attorney General requested formal resignations from 46 US attorneys, effective early in the week. New York Attorney Preet Bharara attempted to resist this request by refusing to submit a resignation, and was subsequently fired in a more final way. Patrick Collins speculates that the move was poorly timed, and may cause more problems than it resolves.
The issue of funding the southern border wall continues to receive a mention in some outlets. The Trump administration has noted plans to shift $5 billion toward hiring additional agents for Customs and Border Protection and Immigration and Customs Enforcement, with a significant portion of the funds intended toward the construction of the long-promised wall. This money would come at the expense of the Coast Guard, TSA, and FEMA, in a move that Paul Rosenzewig warns could result in “less security, not more.”
Similarly, budget proposals would cause a cut in funding to “soft” organizations, such as the National Endowment for the Humanities and Meals on Wheels. Given the ongoing struggle to establish a healthcare bill that manages to please all sides, the issue of funding may continue to be contested for weeks to come.
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