Tag: Syria

Our dysfunctional Congress

Congress is failing to do its job. It sometimes overrides states’ laws when it shouldn’t. At other times it fails to exercise its authority over the Executive branch, which then exceeds its constitutional authority. For many years it has failed to build broad consensus for important public policies resulting in laws with narrow partisan support or no action at all. This rather long note examines several examples of the above.

The rule of law requires that properly adopted laws be enforced. I favor states’ rights to the maximum extent consistent with the Constitution, such as the overriding federal principle of equal protection of the law for everyone. In particular, I favor the right of each state to determine whether growing, selling and consuming marijuana is legal within that state. Federal law has made dealing with pot illegal. The conflict is untenable and the dominant jurisdiction of laws on pot should be clarified. I favor the states’ right to determine the law in this area.

With regard to national laws, I favor legalizing the residency status of immigrants brought to the United States illegally when they were children (the Dream Act) as well as broad immigration reforms. Currently there is no such law and what to do with and about the rest of those here illegally remains highly controversial.

I also (sort of) support Attorney General Session’s move to rescind the Obama Administration’s enforcement guidelines for the federal enforcement of its anti marijuana laws. “Those guidelines had finessed the state-federal conflict by saying, in effect, that federal prosecutors wouldn’t go after people who complied with state laws, but would instead concentrate on drug cartels, money laundering and other high-priority targets…. In a memo, [Session] said the federal pot statutes “reflect Congress’s determination that marijuana is a dangerous drug and that marijuana activity is a serious crime.” “Is this stuff legal? federal-position-on-pot-makes-situation-foggy-draws-pushback” However, given that resources are always limited, law enforcement agencies must prioritize their law enforcement efforts. With or without DOJ guidelines they are likely to adhere to the priorities suggested by the Obama Administration.

And I strongly support President Trump’s rescinding of Obama’s executive order halting the deportation of those who came to the U.S. illegally as children.

In this note I want to explain why I hold these seemingly contradictory views—pro legalization of pot and dreamers and pro rescinding the executive orders that accomplished each of those. More broadly I want to appeal to our dysfunctional legislative branch to shape up and do its job for the citizens and residents of this country.

Immigration Policy

The history of our immigration laws is complex reflecting compromises between interests with very different motives and objectives. It is currently a mess that does not serve the broad interests of the country very well. As Ilya Shapiro put it: “Immigration is quite possibly the most feckless part of the federal government. More than advancing bad policy, our immigration system consists of schizophrenic laws that don’t advance any particular goal.  If you tried to draw up rules for how foreigners enter a country, how long they can stay, and what they can do here, you’d be hard-pressed to come up with anything worse than our hodge-podge of conflicting regulations. This immigration non-policy serves nobody’s interest, except perhaps lawyers and bureaucrats. And yet Congress has shamelessly refused to fix it.“ President Obama’s DAPA order oversteps his Immigration Powers

The 1965 Immigration and Nationality Act expanded the annual number of permitted immigrants and extended the preference given to members of nuclear families (spouses and underage children) to extended family members (aunts and grandmothers, etc.). Extended family members now take the majority of slots allowed annually—so called chain migration. In my opinion, the preference for extended family members should be rolled back to the nuclear family and preference given to those with the skills and education demanded in the labor market. We must not lose the enormous benefits we have enjoyed from our immigrants. See: A nation of immigrants

A particularly contentious issue concerns what to do with the 11 or so million people who are here illegally, often by overstaying their visas. Deporting them would disrupt their lives as well as the enterprises that depend on their labor. But letting them stay seems unfair to those waiting patiently to enter legally. Jeb Bush and Clint Bolick provide an excellent discussion of these issues in their book: Immigration Wars: Forging an American Solution. See also my earlier blog on: Illegal-aliens.

Early on broad, across the aisle, agreement was reached to single out those who were brought into the country as minors and remain illegally, while continuing the debate about what to do with the rest. These illegal residents did not knowingly break the law on their own and many cannot even remember their earlier lives abroad.

Legislation to grant this group conditional residency leading eventually to permanent residency and maybe citizenship, which later became known as the Dream Act (Development, Relief, and Education for Alien Minors Act) was first introduced in 2001 but failed to received the required 60% in the Senate needed to avoid a filibuster. Over the succeeding years it was reintroduced, some times as part of broader immigration reforms, on a number of occasions without success. The 2011 attempt added stronger enforcement provisions against illegal alien workers by requiring employers to verify the legality of each worker in the government’s E-Verify database, the government’s Internet-based work eligibility verification system. But even with this compromise it again fell short of the 60% favorable votes needed in the Senate.

Giving up on Congress, President Obama announced on June 15, 2012 that the government would stop deporting undocumented immigrates matching the criteria covered by the failed DREAM Act. His executive order was called the Deferred Action for Childhood Arrivals (DACA) program.

A year earlier President Obama had said:  “America is a nation of laws, which means I am obligated to enforce the law…With respect to the notion that I can just suspend deportations through executive order, that’s just not the case…There are enough laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system that for me to simply through executive order ignore those congressional mandates would not conform with my appropriate role as President.” (March 28, 2011)

Though I sympathize with the President’s impatience with Congress, his reversal of his earlier understanding of his executive powers is more than a stretch. In recognition of this stretch, DACA only granted temporary residency and work authorization, which would have to be reauthorized from time to time. This is not a very satisfactory solution, even if legal, which is very questionable.

On November 14, 2014 President Obama issued another executive order “offering temporary legal status to millions of illegal immigrants, along with an indefinite reprieve from deportation called the Deferred Action for Parents of Citizens and Lawful Permanent Residents (DAPA) policy.

The executive action would have two key components:

  1. “It would offer a legal reprieve to the undocumented parents of U.S. citizens and permanent residents who’ve resided in the country for at least five years. This would remove the constant threat of deportation. Many could also receive work permits.
  2. “It would expand the 2012 Deferred Action for Childhood Arrivals (DACA) program that allowed young immigrants, under 30 years old, who arrived as children to apply for a deportation deferral and who are now here legally. Immigrants older than 30 now qualify, as do more recent arrivals.

“People in both groups will have to reapply every three years.“ WashPost complete guide to Obama’s immigration-order

DAPA not only protected five million undocumented immigrants from being expelled, but also permitted them to have work permits. This order was blocked in the courts—ultimately by a divided Supreme Court. In Mr. Shapiro’s and the Cato Institute’s view, DAPA was good policy, bad law, and terrible precedent.

In September of last year the Trump administration also withdrew DACA. In making the announcement to rescind DACA Attorney General Jeff Sessions said:  ‘The program, called Deferred Action for Childhood Arrivals, or DACA, put a temporary halt to the deportation of immigrants who came to the United States illegally as children and who have grown up in the country going to school or working.

“We are a people of compassion and we are a people of law. But there is nothing compassionate about the failure to enforce immigration laws,”

Homeland Security Acting Secretary Elaine Duke said the decision was not taken lightly, but was an attempt to reconcile the program with existing law.

“As a result of recent litigation, we were faced with two options: wind the program down in an orderly fashion that protects beneficiaries in the near-term while working with Congress to pass legislation; or allow the judiciary to potentially shut the program down completely and immediately,” Duke said in a statement. “We chose the least disruptive option.”

The Trump administration said no current beneficiaries would be impacted before March 5, 2018, giving Congress time to act.” Session terminates Obama’s immigration executive order

In my opinion Trump/Sessions did the right thing in terms of the law and of the desirability of finding a more permanent determination of the status of DREAMers, which can only be provided by Congress. Now it is Congress’ turn to finally fix this.

While they are at it (but without holding up the Dream Act) they should fix as much of the immigration mess as possible. For example, the Immigration Act of 1990 allows the Attorney General to provide temporary protected status (TPS) to immigrants in the United States who are temporarily unable to safely return to their home country because of ongoing armed conflict, an environmental disaster, or other extraordinary and temporary conditions in their home country. This authority was transferred to the Department of Homeland Security last October.

The TPS program currently covers about 300,000 people from ten countries, namely El Salvador, Haiti, Honduras, Liberia, Nepal, Nicaragua, Somalia, Sudan, South Sudan, Syria, and Yemen. The DHS recently announced the termination of TPS status for about 2,500 immigrants from Nicaragua and 45,000 Haitians and most recently 200,000 Salvadorians. They will all have about two years to find a new status or pack up and leave. Most of them have been here since devastating earthquakes struck Central America in 2001. Some 192,000 U.S.-born children, who are therefore U.S. citizens, have at least one Salvadoran parent who holds TPS. In my opinion, children born in the U.S. to nonpermanent residents should not automatically receive citizenship. But a compassionate and realistic treatment of TPS residents requires ignoring existing laws. The rule of law requires that laws be enforced. But then we need to be sure that we only have laws we want enforced. This is a dilemma with an obvious solution, which has not been easy to achieve.

Marijuana and States’ Rights

In the case of the legalizing marijuana, the issue is the rights of state versus federal law. Racial discrimination allowed and/or promoted by some state laws in the past tarnished the image of states’ rights. The constitution (XIV Amendment) and related federal laws appropriately deal with such discrimination in the market place, though the poison in some hearts remains a problem that only education and public debate and good will can address. States should be given the maximum latitude possible to regulate their own affairs. Bad ideas and approaches will be exposed through their experience and good ones demonstrated and copied by other states. Congress should rescind any laws that label marijuana a dangerous or restricted substance.

I support shifting more responsibility to the states for fashioning the details of medicaid within each state.

War powers and the eternal war on terror

In other instances Congress has given away powers that should only belong to it. We should not fight abroad unless Congress approves it. Yet at the moment the U.S. military is involved directly or indirectly in our “Global war on Terror” in 76 countries largely without explicit congressional approval. “Seeing_our_wars_for_the_first_time”.

Congress has not declared war since World War II. It has authorized military engagements on a number of occasions since then without actually declaring war on anyone. The Korean War was dubbed a police action and undertaken under a UN Security Council Resolution. The Vietnam and related wars were fought under the authorization of the Gulf of Tonkin Resolution of Aug 7, 1964. The Persian Gulf War with Iraq (remember that) was authorized by the UN and by our Congress in the Authorization for Use of Military Force Against Iraq Resolution of January 12, 1991.

Three days after the 9/11 attach on New York and Washington DC, Congress enacted the Authorization for Use of Military Force (AUMF). The law provided that: That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

The law was passed one vote short of unanimously. “The lone dissenter, Representative Barbara Lee, warned that the resolution gave a “blank check to the president to attack anyone involved in the Sept. 11 events — anywhere, in any country, without regard to our nation’s long-term foreign policy, economic and national security interests, and without time limit.” Rome’s empire without end and the endless U.S. war on terror. This law provides the continuing authority under which the U.S. and a few other countries attacked and still fight in Afghanistan as well as in Yemen, Somalia, Philippines, Pakistan, Libya, Iraq, and Syria.

President George W Bush signed the Authorization for Use of Military Force Against Iraq Resolution on Oct 16, 2003.

Individual liberty takes second place to security in times of war. But we now live in an era of permanent war and we are not escaping its price.

“The Committee for Responsible Foreign Policy – a bipartisan initiative designed to advocate for more oversight of U.S. military intervention abroad – commissioned research on U.S. citizens’ positions on war intervention. The coalition announced [recently] that the results prove a majority of Americans are mostly skeptical of the benefits of military intervention overseas and military aid in the form of funds or equipment…. The research showed that 67.4% of American voters disapprove of Congressional leadership allowing our involvement in conflict overseas without formally approving military action – or even allowing a debate.” http://responsibleforeignpolicy.org  “A November poll from J. Wallin Opinion Research showed the vast majority of Americans, over 70%, want Congress to impose at least some specific limits on overseas conflicts and exercise more direct oversight.” “Yemen-proves-US-needs-get-handle-war-making-powers”

Our polarized Congress

In the latest Gallup poll (Dec 4-11, 2017) 78% of those responding “disapproved of the way Congress was handling its job.” Congress’ failure to build broad inter party consensus on important public issues such as immigration, medical care and insurance, taxation, use of our military, marijuana and states rights more generally, has led the executive branch to over reach its proper authority, state and federal law to conflict as the Federal government extends its reach, the failure of Congress to resolve dysfunctional laws such as immigration, and the failure of Congress to agree on budget priorities that would arrest the upward march of our national indebtedness.

There are many reasons for Congress’ dysfunction and the deepening division of public attitudes toward our government and fellow citizens. The gerrymandering of congressional districts into safe Republican and safe Democratic districts has encouraged the selection in primary elections of each party’s more extreme candidates. I place considerable fault on the extent to which government has grown and dictates more and more aspects of our lives. This forces us to take public positions on one side or the other of issues that we used to be able to deal with (or ignore) privately allowing a more live and let live environment. Our sources of news have also become more siloed making it more difficult to confront all of the pros and cons of public policy issues.

What can we do? To name but a few ideas, we should each strive to restore civil public discussion. We should each commit to regularly consulting at least two sources of news from reputable sources coming from different sides of each debate. For example, I read the Washington Post and the Wall Street Journal every day. We must open our ears and minds and listen to what others say. Check out the following from what I bet is a different (and I think refreshing) side of the sexual harassment issue: “Catherine Deneuve denounces #metoo”. I will do my best to convince you that a more limited government will promote greater social harmony, individual freedom, and economic prosperity. And I will demand (if the courts don’t do it first) that my crazy congressional district (Maryland’s 6th congressional district—look it up and be amazed) be redrawn more sensibly. Even-a-gerrymandering-ban-cant-keep-politicians-from-trying-to-shape-their-districts

The Levant

President Obama has announced his strategy for dealing with the Islamic State (a.k.a. the ISIL—Islamic State of Iraq and the Levant). Does it make sense? In thinking about the answer to that question, consider Kevin Lees’ thoughtful assessment — five-thoughts-on-obama’s-isis-announcement – some reflections by Daniel Drezner– four-questions-about-obamas-isil-strategy and the following fantasy.

In order to kill all 28,000 ISIL fighters now in Iraq the United States and its allies Saudi Arabia, UAE, Jordan, Turkey and, dare I say, Iran, deploy 50,000, 100,000, 150,000 (whatever it takes) ground troops in the region (which includes, of course, Syria). These are augmented by U.S. logistical support (intelligence, aerial bombing, weapons, ammunition, and other supplies etc.). Leave aside the detail that their involvement in Iraq would be at the request of the government of Iraq, while their involvement in Syria would constitute war against the government of Syria. They succeed fully. Then what? Countering-islamic-state-will-be-hard-in-iraq-and-harder-in-syria-officials-say/2014/09/10/

The key question is whether a fully successful, foreign led military assault will result in or lead to a sufficiently strong Iraqi army to defend the country going forward, and in Syria I am not sure what, and that the ethnic/religious groups within Iraq and Syria will have, or soon be able to, resolve their governance issues sufficiently to function effectively as countries. Experience with foreign intervention in civil wars (e.g., Bosnia and Herzegovina, Kosovo, Iraq in 2004) suggests that progress toward resolving internal issues is suspended as foreigners take over the fighting. Moreover the foreign liberators quickly become foreign occupiers and thus targets of unhappy citizens—if not the ISIL fighters, then their successors.

In that likely case, the United States and its allies will need to govern Iraq and Syria for a few years until local institutions and political forces develop sufficiently to take over self-governance. We did this before in Iraq from 2003-5, with the Coalition Provisional Authority of which I was a part (Senior Monetary Policy Adviser to the Central Bank of Iraq). While some useful institution building was accomplished, the overall effort was a failure, with Iraq’s governance under al-Maliki about where it was in 2004 or worse. Do we really want to try it again?

Aside from deep concerns about war with Syria, I think that President Obama’s strategy as outlined yesterday (Sept 10) is about right if not a bit overly aggressive. Iraq will not address and resolve its internal issues unless they do the fighting to defend their country, working out and making the compromises needed for peace and cooperation among its Sunni, Shia, and Kurdish populations. Limited, non-combat assistance from the U.S. and others can make a large difference, but it is and must remain Iraq’s war. To my taste Obama is leading a bit too much from the front when he should be leading from behind, but he has so far set out a strategy that could work. I hope that he sticks to it.

More on Syria

My high school and college friend, Bill Hulsy, now living in Southern California, offers his analysis of Obama’s justification for attaching Syria:

Dear Friends:

This e-mail will discuss the various flaws in the arguments provided by the Obama Administration for an attack on Syria.  There are seven major flaws in the argument, to wit:  1) the predicate proof is unsatisfactory and unpersuasive, 2) the action is illegal under our law and international law, 3) the Chemical Weapons Convention does not provide a legal basis for this action, 4) the ostensible beneficiaries and cheerleaders of this action are bad actors, 5) this action is a pretext for War with Iran, 6) the United States has no moral standing since we have both used and aided and abetted the use of chemical weapons, and 7) U.S. loss of face is the problem of Obama himself, and a lesser alternative to bad policy.

This proposed action is predicated on alleged use of chemical gas by the government of Syria.  This contention is illogical as the Syrian government was winning the civil war, and the use of chemical agents is an act of desperation.  Much of Syria has been overrun by the rebels and they have captured many munitions and that includes chemical agents.  The Internet is full of pictures and stories showing that the Syrian rebels have chemical agents.  Logic suggests their use of the gas as a “false flag” operation.

The whole post-WWII peace process has been based on the use of the United Nations.  The United Nations Charter was adopted and ratified by the United States in 1945.  It is a treaty and is United States law.  Article 42 provides that force may be used individually or collectively by signators only if approved by the Security Council.  The only exception is the right of “self defense.” which is permitted under Article 51.  There is no special exception for chemical warfare.

The Chemical Weapons Convention was adopted in 1993.  Syria is not a signatory.  That convention has no enforcement mechanism.  Hence, there is no right to wage war or commit acts of war (such as proposed) pursuant to some “norm” of the Chemical Weapons Convention.

The rebels in Syria are Sunni jihadis.  These are the same people who attacked the United States on 9/11.  Syria is a secular, not a religious state.  The Christians (numbering 2 million souls) make up 10% of the population.  The government protects the interests of the minorities in Syria of which the Christians are one.  The Sunni jihadis want to commit a sectarian cleansing, driving the Syrian Christians into Lebanon.  For a look at what a Sunni jihadi victory would look like, from a religious point of view, see what happened to the Christian community in Iraq after the Iraq War.

This attack is nothing but a pretext for a War with Iran.  This attack will provoke counter-measures by Syria’s allies.  Either an agent of Iran (or one of our agents operating in Iran) will fire a missile at a U.S. ship or tanker and, then, immediately we will attack Iran’s nuclear facilities and the war will be on.  Israel will attack Hezbolla in Lebanon, reactively or pre-emptively,  Russia will cut off oil supplies to Europe.  United States assets all over Arabia and the Moslem world will be at risk.  I believe that is the real reason for the attack on Syria–to promote war with Iran.  It is the American Way.

Not only does the United States have no legal standing for this attack, but, also it has no moral standing to attack Syria.  We used Agent Orange in Vietnam, which was a chemical agent.  We used phosphorus in Fallouja, and we aided and abetted Iraq in its use of gas in warfare in its war with Iran.  We provided the intelligence for where the gas was to be placed to devastate the Iranians where they were massing troops.

It is said that America will lose face if Congress does not approve an attack.  Well, even if that is true, the fault will be Obama’s since lacked any legal or moral power to draw “red lines” regarding the conduct and internal affairs of independent states.  The alternative to the “loss of face” is much worse.  Mr. Obama styles himself a Constitutional Scholar.  He should have known better.

William S. Hulsy
Attorney at Law

Syria and the Red Line

On August 21, 2013, a chemical weapons attack killed 1,429 men, women and children on the outskirts of Damascus. President Obama and Secretary of State John Kerry attribute the horrifying attack to the Assad government. The Geneva Protocol of 1925, the Biological Weapons Convention of 1972, and the Chemical Weapons Convention of 1993 forbid the use of chemical weapons. The use of force to punish violators of the ban may be authorized by the UN Security Council. The United States is not unilaterally authorized under international law to do so.

President Obama continues to surprise me. Despite over a 100,000 casualties in Syria’s two-year plus civil war, he has wisely resisted direct involvement in a conflict that the U.S. has no obvious self-interest in. We have no real control over the unfolding events and outcome of the struggle underway there. Unfortunately, there is no plausible outcome that serves our interest in peace and democracy in the region much less in having a friendly regime. There is no obvious successor to Assad’s regime, though radical Islamism (al Qaeda) forces seem to currently dominate the anti-government forces. Edward Luttwak argues in a NY Times op-ed that a stalemate is the least bad of bad options. “In-Syria America Loses if Either Side Wins”

Obama then foolishly drew a red line against the Assad regime’s use of chemical weapons. It now seems very likely that Assad has crossed it in a big way. If the U.S. does not act decisively it will lose credibility and its red lines will become meaningless. If it acts, as Obama has suggested, in a limited, “surgical” manner that does not tip the balance of Syria’s civil war, will it have “taught” Assad a lesson that will detour him from using chemical weapons in the future? More likely it will affirm U.S. powerlessness in the area. And what about the inevitable collateral damage even if our rockets hit their intended targets and Syria’s unpredictable countermeasures? In a statement released September 1, the International Crisis Group stated that: “To precisely gauge in advance the impact of a U.S. military attack, regardless of its scope and of efforts to carefully calibrate it, by definition is a fool’s errand…. Consequences almost certainly will be unpredictable.” “Syria Statement”

In a letter to the Senate Armed Services Committee last month, Gen. Martin Dempsey, chairman of the Joint Chiefs of Staff, stated that: “As we weigh our options, we should be able to conclude with some confidence that use of force will move us toward the intended outcome. Once we take action, we should be prepared for what comes next. Deeper involvement is hard to avoid.” More recently he added that: “Simply the application of force rarely produces and, in fact, maybe never produce the outcome we seek.” According to Daniel Byman of Brookings Institute “A limited bombing campaign against Syria’s chemical weapons infrastructure is likely to produce the worst of all worlds: raising expectations and further involving the United States in the Syrian civil war without significantly altering the balance of forces on the ground.” “Syria Crisis-Military Action”

Syria’s use of chemical weapons without consequences could render their prohibition toothless. However, not only is the US not legally authorized to police world agreements, it can’t afford to go into another war and still remain economically and militarily strong. Given Russian and Chinese opposition, the UN Security Council will not authorize the use of force. A U.S. attack on Syria would violate international law every bit as much as Syria’s apparent use of chemical weapons has. That does not mean that nothing can be done within the framework of the law in reaction to the use of chemical weapons. If we continue to disregard international law, why would we expect others to abide by it? Globalization, which has dramatically reduced poverty around the world, would suffer. We would be left to police the world by military force (and how has that been working for us?) until we burned ourselves out.

In his rose garden address to the nation Saturday the President said that: “I have decided that the United States should take military action against Syrian regime targets….  And I’m prepared to give that order.” His surprise, however, was his promise to seek Congress’s authorization, something he had not considered necessary for Libya. “But having made my decision as Commander-in-Chief based on what I am convinced is our national security interests,… I will seek authorization for the use of force from the American people’s representatives in Congress.” Regrettably he did not seem to seek this authorization as a legal requirement of the constitution but rather as a pragmatic way to build public support. What ever his reason the step is welcomed.

Harvard Law Professor Jack Goldsmith reviewed the legal arguments over the President’s war powers in a recent New York Times article: “What Happened to the Rule of Law?”  The Obama administration has pushed Presidential authority further than any previous administration. A return to the rule of law, domestically and internationally, is America’s best chance of survival in a dramatically changing world.

Congress should say no to Obama’s request for an illegal and unpromising attack on Syria. But we can thank him for asking.