National security and civil liberties

  • March 13, 2017
    Guest Post

    by Shoba Sivaprasad Wadhia, Samuel Weiss Faculty Scholar & Clinical Professor of Law; Director, Center for Immigrants’ Rights Clinic, Penn State Law

    On March 6, 2017, President Donald Trump issued a “revised” Executive Order titled “Protecting the Nation from Foreign Terrorist Entry in the United States” in an attempt to avoid the catalogue of lawsuits brought against the first. However, the revised EO suffers from the same legal and policy flaws as the first by shutting the door on Muslims and refugees. Every country targeted by the revised EO is comprised of Muslim majority populations: Iran, Libya, Somalia, Sudan, Syria and Yemen. While the revised EO no longer lists “Iraq,” nationals from the country are singled out for special review in another section of the EO. Whether the list of countries is six or seven, Muslims remain the target.

    The revised EO applies specifically to those outside the United States without a valid visa at 5:00 p.m. on Jan. 27, 2017 and on the effective date, which begins one minute after midnight on March 16, 2017. The revised EO makes a few adjustments to the first by carving out exceptions for select people like green card holders, dual nationals and those already granted refugee-related protection. It also creates a waiver process for nationals of the six countries who seek entry during the 90-day ban. Waivers may be issued on a case-by-case basis for those who at a minimum prove that denial of entry would cause “undue hardship,” entry would not pose a threat to national security and entry would be in the “national interest.” How these waivers will be implemented is unknown but the revised EO lists nine scenarios where a waiver may be appropriate like those with previous “significant” contacts,” business, or professional obligations in the United States and those coming to visit a close family member. Despite the long list of examples contained in the EO there is no assurance that people will actually receive waivers or that agencies will be equipped to adjudicate them. The revised EO maintains the 120-day suspension to the refugee program and slash in the total number of refugees by over one-half from 110,000 to 50,000. Exceptions are available on a case-by-case basis for qualifying refugees through a “national interest” formula. Unlike the first EO, the revised version no longer contains an exemption for religious minorities or an indefinite ban on Syrian refugee admissions. Notably, all refugees, including those from Iraq and Syria are affected by the revised EO.

  • March 9, 2017
    Guest Post

    by Rep. Jerrold Nadler

    On Tuesday, Feb. 28, 2017, the House Judiciary Committee, voting along party lines, rejected my Resolution of Inquiry, H.Res. 111 directing the Department of Justice to provide the House of Representatives with any and all information relevant to an inquiry into President Trump and his associates’ conflicts of interest, ethical violations—including the Emoluments Clause—and connections and contacts with Russia. The Resolution of Inquiry, which was reported unfavorably out of the House Judiciary Committee in a party-line vote of 18-16, was the first time Members of Congress had a recorded vote on legislation concerning an investigation of Donald Trump's conflicts and Russia ties.

    Each day, more questions arise concerning President Trump’s foreign business entanglements and his inexplicably cozy relationship with Russia. Each day, Democrats on this Committee, and on other committees, have requested hearings and investigations into these serious issues. And yet, each day, with a few exceptions, we have been met with a deafening silence from our Republican colleagues.

    But my resolution was only a first step to demand accountability from this administration. It must be followed by similar resolutions in other committees. Every day there are new revelations that reveal deeper conflicts. Already, Attorney General Sessions has been forced to recuse himself from any investigation into Russian contacts with the Trump campaign. That recusal does not relieve Congress of its independent obligation to do its job as an independent check on the executive. We must keep up the pressure.

  • February 14, 2017
    Guest Post

    *This piece originally appeared on Just Security.

    by Ryan Goodman, Co-Editor-In-Chief of Just Security and Anne and Joel Ehrenkranz Professor of Law at New York University School of Law and Steve Vladeck, Co-Editor-In-Chief of Just Security and Professor at The University of Texas School of Law

    The news from overnight that National Security Adviser Michael Flynn has resigned over his inappropriate pre-Inauguration dealings with Russia has also reinvigorated the debate over whether he can and should be prosecuted for violating the Logan Act, 18 U.S.C. § 953. Although Steve has previously suggested that the Logan Act could not be used to prosecute members of the presidential transition team (if it could be used at all, given that it has been moribund for over 200 years and is, in any event, a content-based restriction on speech), an exchange over e-mail between us about Steve’s prior post led to this Q&A that more fully fleshes out those arguments:

    Ryan to Steve: You wrote that the spirit of the Logan Act, if not its letter, would not apply to members of an incoming presidential transition team. But the White House appears to be saying that Flynn was going rogue on those phone calls, that he never cleared it with them to speak about the sanctions, and that he lied to them about the content of the calls afterwards. If that is true, would it not throw out the window an analysis that says a person acting in their capacity as a presidential transition team member does not come under the Logan Act? Flynn would have been acting not only “without authority of the United States,” but also without authority of the presidential transition team.

    Steve to Ryan: It might. But the absence of any Logan Act prosecutions means that there has been no judicial analysis of what it means to act “without the authority of the United States” in this context. For example, it is not clear to me that a serving Cabinet officer—who we all agree would ordinarily exercise the “authority of the United States”—would violate § 953 if he engaged in unauthorized communication with a foreign government with the “intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States.” The question is whether “authority of the United States” in this case literally requires the president’s (express or tacit) approval of the content of the communication (which, contra another post of mine, would likely mean that members of Congress would often act without such authority), or whether it just means under color of U.S. authority. I think the better reading of the Act’s text is the latter—but that is especially true if the former reading would potentially raise some of the constitutional concerns to which I have previously alluded.

  • September 13, 2016
    On Friday the Supreme Court refused to revive a Michigan law that barred straight-ticket voting, reports Adam Liptak of The New York Times.
    Sen. Bob Casey posted an editorial to Medium in which he calls for an end to the senatorial obstruction leaving judicial vacancies unattended on federal courts.
    Constitutional scholar Akhil Reed Amar is featured on an episode of the Diane Rehm Show during which he describes how to interpret the pressing issues Americans face today through the lens of the constitution.
    University of Texas at Austin Law Professor Stephen Vladek stresses the importance of trusting existing institutions. In an op-ed for Star-Telegram, Vladek asserts that civilian courts, not expensive military commissions, are the best places to bring justice to enemies of the United States.
  • November 19, 2015
    Guest Post

    by Chris Edelson, assistant professor of government, American University’s School of Public Affairs. He is author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror (University of Wisconsin Press, 2013). His second book, Power Without Constraint: The Post 9/11 Presidency and National Security will be published in spring 2016 by the University of Wisconsin Press.

    The terrorist attacks in Paris leave us all horrified – as do the attacks in Lebanon last week that have received less public attention worldwide. Terrorism is meant to make people afraid, and it does its job. Part of what we must do in responding to these attacks is to manage our fear and prevent it from ruling us or pushing us (or our elected officials) to make bad decisions.

    No one (except the terrorists themselves) wants to see another attack against civilians. Some elected officials and candidates for office, however, have made counterproductive statements following the Paris attacks. Sen. Ted Cruz (R-Texas) declares the U.S. should only accept Syrian refugees who are Christian, arguing that “[t]here is no meaningful risk of Christians committing acts of terror.” Jeb Bush similarly suggested that the U.S. should focus “on the Christians who have no place in Syria any more.” Bush also described the Paris attacks as “an organized attempt to destroy Western civilization.” Sen. Marco Rubio (R-Fla.) similarly described what is happening as “a clash of civilizations.” Republican presidential candidates criticized Hillary Clinton and other Democratic presidential candidates for declining to use the words “radical Islam” when discussing the fight against ISIS. Donald Trump suggested (not for the first time) that it may be necessary to consider closing some mosques in the United States (though he said he is not personally considering this – yet).

    These candidates surely want to find a way to take meaningful action to keep Americans and others safe from ISIS. (Though Sen. Cruz leveled the very troubling and baseless charge that President Obama “does not wish to defend this country.”) But many are making a serious mistake by speaking about ISIS and terrorism in ways that draw religious lines between Christians and Muslims. This is not a matter of “political correctness,” it is a matter of logic, fact and reason. Of course ISIS is Islamic. But ISIS practices a form of Islam that the vast majority of Muslims reject. In fact, ISIS has terrorized and killed many Muslims it sees as apostates. It may well serve ISIS’s purposes to describe its terrorist acts as part of a religious war: After the Paris attacks, ISIS referred to France as “the carrier of the banner of the Cross in Europe” and a leader of “the convoy of the Crusader campaign [i.e. the military campaign against ISIS in Iraq and Syria].”