Monday, January 20, 2020

The Disingenuous Argument Against Witnesses

Grand juries are a mysterious presence in our polity. Most people have a sense of what a trial is, but the function of the grand jury isn’t always appreciated.

A grand jury isn’t some sort of trial before the trial, making an initial finding of guilt or innocence. Rather it “is the function of the grand jury to determine whether the evidence presented in a specific case is sufficient to establish probable cause to believe that a crime was committed and that a specific individual committed the crime.” [1] “A finding of probable cause is proper only when the evidence presented to the grand jury, without any explanation being offered by the accused, persuades 12 or more grand jurors that a federal crime has probably been committed by the person accused.” [2] “The grand jury is not to weigh evidence to determine guilt or innocence.” [3]

For this reason, “exculpatory evidence will rarely be presented to a grand jury. Because the grand jury’s function is limited, the prosecutor has no duty to present evidence in his possession which tends to negate guilt….Further, an accused has no right to be called as a witness before the grand jury that is considering his or her indictment…, and he or she has ‘no right of cross-examination, or of introducing evidence to rebut the prosecutor’s presentation.’” [4]

The nation is now about to embark on President Trump’s Senate impeachment trial; and Senate Republicans have been saying that the House managers shouldn’t be allowed to allowed to call witnesses, but “should proceed with the evidence they used to impeach Trump in the House.” [5] Moreover, they have been echoing “the White House line that the House impeachment hearings violated Trump’s right to due process, despite the fact that the president refused to allow his lawyers to participate in those sessions.” [6] And now Senate majority Mitch McConnell has “unveiled ground rules on Monday for President Trump’s impeachment trial that would attempt to speed the proceeding along and refuse to admit the evidence against the president unearthed by the House without a separate vote.” [7]

It really is up to the Senate how it conducts its impeachment trials, and the argument cannot be made that impeachments should be handled exactly like indictments. But it is hard to make the case that impeachments, being quasi-criminal in nature, should be handled nothing like indictments.

The House of Representatives, having “the sole Power of Impeachment,” [8] stands in the place of a grand jury; the Senate, having “the sole Power to try all Impeachments,” [9] stands in the place of a trial court. Now it would be preposterous if a trial court refused to let the prosecution call any witnesses because it should have made its entire case in front of the grand jury; or limited the prosecution witnesses to only those who testified in front of the grand jury. The purpose of the impeachment hearings in the House wasn’t to obtain a conviction on the impeachment, but to form the impeachment charges. But Senate Republicans are claiming that the House should have gained testimony sufficient for a conviction before the Senate trial took place; and that while President Trump was obstructing its efforts.

If the Senate decides not to allow witnesses, there is nothing to be done. It has that power. But it should be known by all that the arguments for the Senate to act in that manner are utterly bogus, and outright disingenuous.  

Saturday, January 11, 2020

An Outlaw Nation?

Iraq’s Prime Minister Adel Abdul Mahdi “said earlier on Friday that he had asked Secretary of State Mike Pompeo to send a delegation from the United States to discuss steps for the withdrawal of the approximately 5,200 American troops from his country, in the aftermath of a deadly American military strike ordered by President Trump that many Iraqis say violated their country’s sovereignty….Iraqi lawmakers voted on Sunday to expel United States forces after the American drone strike that killed 10 people in a two-car convoy — Maj. Gen. Qassim Suleimani, a top Iranian commander, four of his Iranian aides and five Iraqis, including a senior militia leader, Abu Mahdi al-Muhandis. The prime minister has not signed the bill yet, but had been criticizing the American troop presence in Iraq since a series of recent actions by the United States military.” [1]  

But the United States isn’t having any of it. The New York Times reports that the “State Department…rebuffed the Iraqi government’s request to begin discussions on pulling out troops, saying that any American officials going to Baghdad during a state of heightened tensions would not discuss a ‘troop withdrawal.’ Instead, discussions would be about the ‘appropriate force posture in the Middle East.’” Secretary of State Mike Pompeo said thereafter that the U.S. is “‘happy to continue the conversation with the Iraqis about what the right structure is,’” stressing “that the mission of the United States in Iraq was to train Iraqi forces to fight the Islamic State, and ‘we’re going to continue that mission.’”

It seems that Mr. Pompeo is of the view that the U.S. will “continue that mission” whether the Iraqis want it or not.

That is, quite frankly, alarming. The Secretary of State is saying that American troops will remain in Iraq against the wishes of the Iraqi government. If that situation develops, then the U.S. will become an occupying power. And how would we justify that?

Chapter I, Article 2, paragraph 4 of the United Nations Charter requires that all UN “Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” [2] Stationing troops in another nation against the will of its government is clearly contrary to that provision.

The State Department, and Mr. Pompeo, are threatening to violate international law. And since the UN Charter is a treaty, they are also threatening to violate U.S. Law, since treaties made under the authority of the United States constitute a part of the supreme law of the land. [3]

Our Secretary of State just threatened to make the United States an outlaw nation. How that would serve American interests is difficult to envision.

Monday, January 6, 2020

The War Powers Resolution Is Unconstitutional

You might find it surprising that Baghdad International Airport Strike that killed Iranian Major General Qasem Soleimani and nine others was completely legal under American law. The legislation that governs situations like this is the War Powers Resolution passed by Congress in the wake of the Vietnam War. The purported purpose of the Resolution was to “fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment 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.” [1]

The Resolution recognizes that 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.” But it goes on to abandon that principle in its subsequent provisions.

If the President engages in a military attack, he must submit a report to the Speaker of the House and the President Pro Tempore of the Senate within forty-eight hours, and must thereafter submit reports to Congress no less than once every six months. [2] While the President is required in that report to set forth his purported constitutional and legislative authority for his action, there is nothing that requires that he receive prior congressional authorization.

After that, the President isn’t required to cease the military operation for sixty days. [3] And he gets an extra thirty days if he “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.” The President must, however, remove the military forces if the Congress directs it by a concurrent resolution.

Now the Resolution does provide that no new authority for introducing American forces is granted to the President by the legislation.
[4] But that provision is potentially meaningless where presidents have conceived of themselves as having a free hand in international military operations. And the Resolution basically allows the President to conduct whatever military actions he wants within a sixty-day window.

Of course, the Baghdad International Airport Strike was immediately over and done with. Therefore, there is no question of violating the sixty-day window. The President’s action is completely in line with the War Powers Resolution.

The problem is that the Constitution gives the War Power to Congress [5], and it has no provision for the President to go off and start a war on his own within any prescribed time period. But the way the War Powers Resolution is drafted, the President can initiate a nuclear war with China, justifying it by saying that China is a threat to American control of the Pacific. He might have to withdraw all American forces within sixty or ninety days without further authorization from Congress; but if he started a conflagration like that, Congress would be boxed into a corner.

“In the early draft of the Constitution presented to the Convention by its Committee of Detail, Congress was empowered ‘to make war.’ Although there were solitary suggestions that the power should better be vested in the President alone,  in the Senate alone, or in the President and the Senate, the sentiment of the Convention, as best we can determine from the limited notes of the proceedings, was that the potentially momentous consequences of initiating armed hostilities should be called up only by the concurrence of the President and both Houses of Congress.  In contrast to the English system, the Framers did not want the wealth and blood of the Nation committed by the decision of a single individual;  in contrast to the Articles of Confederation, they did not wish to forego entirely the advantages of executive efficiency nor to entrust the matter solely to a branch so close to popular passions.

“The result of these conflicting considerations was that the Convention amended the clause so as to give Congress the power to ‘declare war.’ Although this change could be read to give Congress the mere formal function of recognizing a state of hostilities, in the context of the Convention proceedings it appears more likely the change was intended to insure that the President was empowered to repel sudden attacks without awaiting congressional action and to make clear that the conduct of war was vested exclusively in the President.” [6]

Thus, the President’s power when it comes to starting wars is restricted to repelling sudden attacks. Presidents may have not so restricted themselves in recent memory, but that’s what the Constitution says. So, did the drone attack that killed Qasem Soleimani qualify?

There certainly was no attack against American troops underway. And The New York Times reports that there were “disputes in the administration about the significance of what some officials said was a new stream of intelligence that warned of threats to American embassies, consulates and military personnel in Syria, Iraq and Lebanon.” And one official “described the intelligence as thin and said that General Suleimani’s attack was not imminent because of communications the United States had between Iran’s supreme leader, Ayatollah Ali Khamenei, and General Suleimani showing that the ayatollah had not yet approved any plans by the general for an attack.” [7]

Who one believes will doubtlessly be based on partisan considerations. But it seems a stretch that General Suleimani was on the verge of any attacks on American interests at the time he was killed. If he was, President Trump should have to make that case to Congress.

Meanwhile, the War Powers Resolution gives too much rein to belligerent presidents. It should be repealed and replaced with legislation that better reflects the restrictions on presidential action that are contained in the Constitution.