Friday, May 27, 2011

Is the USA PATRIOT Act extension legal?

I was surprised to learn that the President "authorized use of an autopen" to sign the law extending the life of the USA PATRIOT before the midnight deadline that would have caused the law to lapse.  [Special Bonus Points to anyone who -- without checking Google or elsewhere -- can list the full title of the law that has that catchy acronym.]

After all, this was the President who took the oath of office twice to be sure that no one could challenge his presidency on that point.

It turns out that the legal counsel for President Bush prepared a formal memorandum allowing such signatures in 2005. I guess that proves that White House lawyers know how to make things easy for the President.

libya: the ball's in Congress' court

Many commentators got all worked up that sixty days had passed since the start of the air operations in Libya. Some said the U.S. actions were illegal, since the War Powers Resolution sets a time limit on military operations absent authorization by Congress.

Well nobody expected the President to say, "Oops, I gotta obey the law," since no President ever has acknowledged the law as binding. Instead, President Obama did a clever -- and fully justified --thing. He sent a letter to congressional leaders urging them to authorize the action.  He also said the Administration had been in consultations with some members and urged approval of a Kerry-McCain resolution, S. Res. 194. That measure is not binding law, but does express the sense of the Senate "support[ing] the limited use of military force  by the United States in Libya." It also endorses regime change in Tripoli, a goal broader than the official UN Security Council mandate.

Congress has done this often in the past, before and since the War Powers Resolution was enacted.It would be appropriate now as well.  I still believe that that law is Constitutional and binding, but I also recognize that Congress has often failed to assert its war powers.The Kerry-McCain resolution is a better-than-nothing way to play its proper role.  That resolution, by the way, has been held up by Senators who want votes on more extreme pro- and anti-war provisions. If any of them succeed, however, Congress will end up leaving executive power unchallenged.

Saturday, May 14, 2011

terrorist interest group

I know and respect that Americans have a Constitutional right to organize and petition the government for a redress of grievances, but I'm uneasy when former senior officials with major national security responsibilities start shilling for an organization that's been on the official list of terrorist supporters for over a dozen years. According to the Wall Street Journal, many of these former officials even take five-figure speaking fees to endorse the Mujahedin-e-Khalq [MeK], a group that opposes the current regime in Tehran. Shared dislikes are not the same as shared values. If the MeK has renounced its violent past and has enough in common with U.S. policy to warrant removal from the terrorist list, then let that be determined by officials with access to all the intelligence -- and not by former officials who get big speaking fees.

war powers and the Libya operation

I tend to tune out when lawyers start arguing war powers. Nobody listens to them other than other lawyers. Going to war is a political decision by the two political branches of government, and it should be treated as a serious policy question.

I was skeptical about the wisdom and likely success of the Libyan air strikes, but not about their legality. The UN Security Council had approved action; the North Atlantic Council had approved, and even the Senate had passed a nonbinding "go get 'em" resolution. It would have been nice if the President had asked for congressional endorsement either before or after he ordered the strikes, but I wasn't surprised when Congress failed to assert its Constitutional prerogatives since their assertiveness has been pretty spotty in recent decades.

Now the administration is acknowledging that the war powers act does exist and maybe should do something, even though no President has ever said that it was binding. That law does allow military action for 60 days without congressional approval, and that deadline is approaching. I hope U.S. officials will at least review what has been accomplished and what is feasible if U.S. participation continues. If the moribund law can accomplish that, it will be useful service.

the system worked

The military operation that killed Osama bin Laden appears to have been a textbook example of good presidential and military planning.

But it also proved that Congress can keep a secret. As Vice President Biden told the Atlantic Council:
"What was even more extraordinary was -- and I’m sure former administration officials will appreciate this more than anyone -- there was such an absolute, overwhelming desire to accomplish this mission that although for over several months we were in the process of planning it and there were are many as 16 members of Congress who were briefed on it, not a single solitary thing leaked. I find that absolutely amazing."
Since I helped write the law that requires presidential findings prior to CIA covert actions and notification to Congress, I was gratified that this aspect worked well, too.

I also used an on-the-record meeting at the Council on Foreign Relations to ask the current chairman of the House Intelligence Committee,Cong. Mike Rogers (R-Mich.), whether his panel would consider extending this law to cover covert actions conducted solely by non-CIA personnel. He indicated that they had been following what he called "Title 10 operations" (after the part of the U.S. Code controlling the Pentagon) and would be considering whether to make any changes in the law.

no excuses

But I do have an explanation for my tardiness in posting. I have shared some news items with my class, but didn't take the time to blog with them. I also had academic responsibilities. And I have come very close to finishing a book manuscript much earlier than expected. So I've been busy.