Monthly Archives: August 2017

THE REGULARS: Denigrating efforts of NATO members doesn’t enhance US leadership – Sioux City Journal

Posted: August 20, 2017 at 6:00 pm

There is only one thing worse than fighting with allies, and that is fighting without them.

World attention has recently focused on North Korea. Not long ago, however, the focus was on Europe. Questions were raised as to whether the North Atlantic Treaty Organization (NATO) was obsolete and whether some countries owe money to others. Having served at the nexus of the military and civilian levels of NATO, I have my own observations on the topic.

First off, all member countries pay to support the operations of the organization. No country has failed to make the full agreed-to payments.

What the majority of countries have failed to do is meet a goal of spending two percent of their gross domestic product (GDP) on defense matters. Of the 29 member countries, only the U.S., United Kingdom, Greece, Estonia and Poland meet the two percent GDP guideline. This goal was originally set in 2006, and was confirmed in 2014 stating that countries would aim to move toward the 2 percent guidelines within a decade. As a sign that members are taking that pledge seriously, overall defense spending by non-U.S. NATO members increased 3.6 percent in 2016.

While much of the attention regarding NATO member spending relates to the 2 percent guideline, it is not the sole measure of commitment. Greece, the Czech Republic, the Netherlands and Slovenia provide relevant contrasts.

Greece meets the NATO two percent goal, and has a defense structure of 106,000 personnel. The Czech Republic, the Netherlands and Slovenia spend approximately half the defense spending of Greece. The Czechs, Dutch and Slovenians have 23,000, 41,000 and 7,000 service members, respectively.

However, in support of NATOs mission in Afghanistan, the Czechs have deployed 214 personnel, the Dutch 100, the Slovenians seven and the Greeks four. Latvia has 22 deployed from a force one-20th the size of Greece. In fairness, Greece has 112 soldiers supporting the NATO mission in Kosovo, but the Slovenians have 252.

So, while GDP is important, it tells us little about how countries are having an impact on operations that NATO undertakes. It should also be of note that the Czechs have had 10 fatalities in Afghanistan, the Dutch 25 and the Latvians three.

The NATO mission in Afghanistan is also relevant for other reasons. First, approximately 5,000 service members from every NATO country except Canada presently serve in Afghanistan, continuing a presence that NATO members have had since 2003. Second, while NATO was formed to deter and, if necessary, fight war in Europe, its longest continuous combat mission was in Asia, and in response to a non-state actor. In response to piracy of the Horn of Africa, it was a NATO command that stopped the attacks and increased the safety to commerce.

None of this is to say that everything with NATO is smooth. Member states need to invest more in their security. NATO members need to ensure their forces are well-trained, well-equipped, deployable and relevant to the security missions facing the alliance.

NATO has ensured stability and security in Europe since the end of World War II. This period is arguably the longest stretch of time without a significant conflict among the major countries of Europe since the Pax Romana.

An old Army manual described leadership as the process of influencing people by providing purpose, direction and motivation while operating to accomplish the mission. Denigrating the efforts being made by NATO members and raising doubts about American commitment doesnt enhance our leadership. As written in I Corinthians, For if the trumpet give an uncertain sound, who shall prepare himself for battle?

Writer's note: The views expressed are those of the author and do not reflect the official policy or position of the United States Army or Department of Defense.

Next week: Charese Yanney

A Sioux City resident, Steve Warnstadt is government affairs coordinator for Western Iowa Tech Community College and a former Democratic state senator. He and his wife, Mary, are the parents of one son and one daughter.

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NATO’s Balkan Dream: ‘Gaining Access to Key Strategic Facilities’ – Sputnik International

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Europe

10:58 20.08.2017(updated 11:57 20.08.2017) Get short URL

The Constitutional Court of Bosnia and Herzegovina has ruled that the Veliki Zep military facility in the countrys Serb-dominated Republika Srpska is owned by the state. In an interview with Sputnik, Serbian political analyst Andjelko Kozomara said the decision could help Bosnia move toward NATO membership

NATO wants togain access tokey strategic facilities. The Yugoslav Army always deployed its bases atstrategic locations and byregistering them as prospective military property, the Bosnian authorities are making them available toNATO, which plans tostation its forces there, he said.

He added that the Constitutional Courts ruling violates the terms ofthe 1995 Dayton Accordspeace accord underwhich 49 percent ofthe countrys territory belongs toRepublika Srpska.

Re-registration ofthe so-called prospective military property is the final step inBosnia and Herzegovinas bid tojoin NATO, the so-called Membership Action Plan.

Just likeSerbia, the majority ofBosnian Serbs do not want tojoin NATO. If Serbia does not want tojoin NATO, then Republika Srpska will not let Bosnia and Herzegovina join this military alliance. We fear, however, that things may develop just asthey did in1992 when Croats and Bosnians voted ina referendum tobreak away fromYugoslavia. The Bosnian Serbs did not vote, butthe international community still recognized the results ofthat plebiscite, Andjelko Kozomara continued.

Meanwhile, the vice speaker ofRepublika Srpskas parliament, Nenad Stevandic said that the re-registration ofmilitary property will byno means facilitate Bosnia and Herzegovinas integration intoNATO because the Bosnian Serb Republic will not abide bythe Courts ruling, which violates the terms ofthe Dayton Accords and creates a new crisis inBosnia and Herzegovina.

He added that ina situation likethis Bosnia and Herzegovina will not be able tojoin any alliances.

They are pressuring us toset offa new crisis and blame it all onthe Serbs. They have been using this practice since1992 bymaking decisions we cant subscribe tobecause they deprive us ofour legitimate rights, and then blaming us for destabilizing the situation, Nenad Stevandic told Sputnik.

Commenting onthe situation inan interview withRepublika Srpskas news agency, the Russian ambassador toSarajevo Pyotr Ivantsov said that matters directly pertaining toone ofthe countrys entities cannot be decided withoutits consent.

Sarajevo and Brussels have been discussing Bosnias NATO membership sincethe mid-2000s.

Bosnia and Herzegovina joined NATOs Partnership forPeace program in2006. It was expected tojoin NATO by2011, butthe plan hit a snag overthe need tohand overmore than60 military facilities tothe federal government.

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Trump elevates Cyber Command, setting the stage for NSA separation – The Verge

Posted: at 5:58 pm

The Trump administration this week elevated the US Cyber Command to a Unified Combatant Command, in a long-awaited move that underscores the growing importance of cyber warfare.

The decision, announced Friday, puts the Cyber Command on par with nine other combat commands, and may lead to its separation from the National Security Agency (NSA). In a statement, President Trump said that Secretary of Defense James Mattis will examine the possibility of separating the Cyber Command and the NSA, and that he will announce recommendations at a later date.

This new Unified Combatant Command will strengthen our cyberspace operations and create more opportunities to improve our Nations defense, Trump said in the statement. The elevation of United States Cyber Command demonstrates our increased resolve against cyberspace threats and will help reassure our allies and partners and deter our adversaries.

Trump says the move will streamline command and control of time-sensitive cyberspace operations.

Trump also said that the move will streamline command and control of time-sensitive cyberspace operations, and that it will ensure that critical cyberspace operations are adequately funded.

Proposals for creating an independent Cyber Command were first made under the Obama administration, with supporters arguing that the units mandate was sometimes at odds with the NSAs intelligence gathering operations particularly with regard to the fight against ISIS.

Cyber Command was created as a sub-unit of the US Strategic Command, with a mandate to conduct cyber warfare and defend government networks. Navy Admiral Michael Rogers currently leads both Cyber Command and the NSA.

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Trump elevates Cyber Command, setting the stage for NSA separation - The Verge

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Trump elevates US Cyber Command, exploring split from NSA – CapitalGazette.com

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President Donald Trump announced Friday he has directed U.S. Cyber Command to be elevated to a unified combatant command and is exploring separating it from the National Security Agency.

In a statement, Trump said the move will strengthen our cyberspace operations and create more opportunities to improve our Nations defense.

Headquartered at Fort George G. Meade, the move will make Cyber Command a more influential institution within the Department of Defense.

The decision could have significant economic ramifications for western Anne Arundel County, where Fort Meade is based.

Tim OFarrell, general manager for the Fort Meade Alliance, said the decision is huge for the state of Maryland. Its huge for this region.

He said, What this means is greater emphasis on cyber and economic development around the region as companies want to come to a place that is so close to the center of it all.

Claire Louder, the former CEO of the West County Chamber of Commerce, said last year that a change in how Cyber Command is positioned within the Department of Defense could lead to more opportunities for cyber companies looking to sign military contracts.

Currently, the agency is a sub-unified command underneath the U.S. Strategic Command, and Adm. Michael Rogers is the head of the NSA and Cyber Command.

Eric Geller, a cybersecurity reporter for Politico, wrote on Twitter the move elevates Cyber Command to the level of nine other unified combatant commands within the Department of Defense, such as U.S. Strategic Command and U.S. Pacific Command.

Louder said because resources are allocated differently to full combatant commands rather than sub-unified commands, the change could lead to another significant economic boom for the region.

That could also lead to better positioning for county officials to lobby for additional funding for infrastructure and school improvements as more people move to the area following job opportunities.

OFarrell said Friday that while the move was largely expected Congress had authorized the president to make this move through its fiscal year 2017 defense policy legislation its impact on the cybersecurity community should not be understated.

If you want to understand what is happening in that space, youre going to have to come through here, OFarrell said. I think youre going to see, from Annapolis to Columbia, continued new companies coming into the marketplace.

Rep. C.A. Dutch Ruppersberger, D-Baltimore County, whose 2nd District includes Fort Meade, lauded Trumps decision to elevate the agency in a statement.

Demand for cyber warfare capabilities is only going to increase and this decision will give the Command the power and resources it needs to better protect our country, he wrote.

Trump said in the statement the move will also help streamline command and control of time-sensitive cyberspace operations by consolidating them under a single commander with authorities commensurate with the importance of such operations.

The change follows years of intense debate as to how Cyber Command should be positioned within the Department of Defense.

Several high-ranking officials have proposed separating the agency entirely from the NSA.

Created in 2009 at NSA headquarters in Fort Meade, Cyber Command plays a more active and offensive role in military combat than the NSA, mostly over the internet rather than on the ground.

During President Barack Obamas administration, former Defense Secretary Ash Carter and former Director of National Intelligence James Clapper argued Cyber Command should be independent of the NSA.

However, Arizona Sen. John McCain has been adamant he would block any plans to end the dual-hat leadership that oversees the NSA and Cyber Command.

In a statement, McCain said he was pleased by Trumps decision, adding there is much more to be done to prepare our nation and our military to meet our cybersecurity challenges.

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The US Spy Hub in the Heart of Australia – The Intercept

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A short drive south of Alice Springs, the second largest population center in Australias Northern Territory, there is a high-security compound, code-named RAINFALL. The remote base, in the heart of the countrys barren outback, is one of the most important covert surveillance sites in the eastern hemisphere.

Hundreds of Australian and American employees come and go every day from Joint Defence Facility Pine Gap, as the base is formally known. The official cover story, as outlined in a secret U.S. intelligence document, is to support the national security of both the U.S. and Australia. The [facility] contributes to verifying arms control and disarmament agreements and monitoring military developments. But, at best, that is an economical version of the truth. Pine Gap has a far broader mission and more powerful capabilities than the Australian or American governments have ever publicly acknowledged.

An investigation, published Saturday by the Australian Broadcasting Corporation in collaboration with The Intercept, punctures the wall of secrecy surrounding Pine Gap, revealing for the first time a wide range of details about its function. The base is an important ground station from which U.S. spy satellites are controlled and communications are monitored across several continents, according to classified documents obtained by The Intercept from the National Security Agency whistleblower Edward Snowden.

Together with the NSAs Menwith Hill base in England, Pine Gap has in recent years been used as a command post for two missions. The first, named M7600, involved at least two spy satellites and was said in a secret 2005 document to provide continuous coverage of the majority of the Eurasian landmass and Africa. This initiative was later upgraded as part of a second mission, named M8300, which involved a four satellite constellation and covered the former Soviet Union, China, South Asia, East Asia, the Middle East, Eastern Europe, and territories in the Atlantic Ocean.

The satellites are described as being geosynchronous, which means they are likely positioned high in orbit at more than 20,000 miles above the earths surface. They are equipped with powerful surveillance technology used to monitor wireless communications on the ground, such as those sent and received by cellphones, radios, and satellite uplinks. They gather strategic and tactical military, scientific, political, and economic communications signals, according to the documents, and also keep tabs on missile or weapons tests in targeted countries, sweep up intelligence from foreign military data systems, and provide surveillance support to U.S. forces.

An aerial image of the Pine Gap surveillance facility, located near Alice Springs in Australias Northern Territory.

Photo: BING

Outside Pine Gap, there are some 38 radar dishes pointing skyward, many of them concealed underneath golfball-like shells. The facility itself is isolated, located beyond a security checkpoint on a road marked with prohibited area signs, about a 10-minute drive from Alice Springs, which has a population of about25,000 people. There is a large cohort of U.S. spy agency personnel stationed at the site, including employees of the NSA, CIA, and National Reconnaissance Office, the agency that manages the spy satellites. Intelligence employees are joined by compatriots from the U.S. Army, Navy, and Air Force.

Pine Gap plays a significant role in supporting both intelligence activities and military operations, according to a top-secret NSA report dated from April 2013. One of its key functions is to gather geolocational intelligence, which can be used to help pinpoint airstrikes. The Australian base has a special section known as the geopit for this function; it is equipped with a number of tools available for performing geolocations, providing a broad range of geolocation capabilities in conjunction with other overhead, tactical, fixed site systems, notes an August 2012 NSA site profile of the facility.

Richard Tanter, a professor at the University of Melbourne, has studied Pine Gap for years. He has co-authored, with Bill Robinson and the late Desmond Ball, several detailed reports about the bases activities for California-based security think tankNautilus Institute. He reviewed the documents obtained by The Intercept and said that they showed there had been a huge transformation in Pine Gaps function in recent history.

The documents provide authoritative confirmation that Pine Gap is involved, for example, in the geolocation of cellphones used by people throughout the world, from the Pacific to the edge of Africa, Tanter said. It shows us that Pine Gap knows the geolocations it derives the phone numbers, it often derives the content of any communications, it provides the ability for the American military to identify and place in real-time the location of targets of interest.

The base, which was built in the late 1960s, was once focused only on monitoring missile tests and other military-related activities in countries such as Russia, China, Pakistan, Japan, Korea, and India. But it is now doing a great deal more, said Tanter. It has shifted from a national level of strategic intelligence, primarily to providing intelligence actionable, time-sensitive intelligence for American operations in [the] battlefield.

In 2013, the Sydney Morning Herald reported that Pine Gap played a key role in controversial U.S. drone strikes. Over the past decade, drone attacks have killed a number of top Al Qaeda, Islamic State, and Taliban militants. But the strikes often taking place outside of declared war zones, in places such as Yemen, Somalia, and Pakistan have also resulted in the deaths of hundreds of civilians, and in some cases are considered by human rights advocates to constitute potential war crimes and violations of international law.

The U.S. and its allies regularly use surveillance of communications as a tactic to track down and identify suspected militants. The NSA often locates drone targets by analyzing the activity of a cellphones SIM card, rather than the content of the calls an imprecise method that can lead to the wrong people being killed, as The Intercept has previously revealed. Its really like were targeting a cellphone, a former drone operator told us in 2014. Were not going after people were going after their phones, in the hopes that the person on the other end of that missile is the bad guy.

Concerns about such tactics are amplified in the era of President Donald Trump. Since his inauguration earlier this year, Trump has dramatically increased drone strikes and special operations raids, while simultaneouslyloosening battlefield rules and seekingto scrap constraints intended to prevent civilian deaths in such attacks. According to analysis from the group Airwars, which monitors U.S. airstrikes, civilian casualties in the U.S.-led war against the Islamic State are on track to double under Trumps administration.

Afghan villagers gather near a house destroyed in an apparent NATO raid in Logar province, south of Kabul, Afghanistan, on June 6, 2012.

Photo: Ihsanullah Majroh/AP

David Rosenberg, a 23-year veteran of the NSA who worked inside Pine Gap as a team leader for more than a decade, acknowledged that the base was used to geolocate particular electronic transmissions. He told The Intercept and ABC that the base helps to provide limitation of civilian casualties by providing accurate intelligence, and insisted that the governments of Australia and the United States would of course want to minimize all civilian casualties.

But that reassurance is unlikely to satisfy critics.

Emily Howie, director of advocacy and research at Australias Human Rights Law Centre, said the Australian government needs to provide accountability and transparency on its role in U.S. drone operations. The legal problem thats created by drone strikes is that there may very well be violations of the laws of armed conflict and that Australia may be involved in those potential war crimes through the facility at Pine Gap, Howie said. The first thing that we need from the Australian government is for it to come clean about exactly what Australians are doing inside the Pine Gap facility in terms of coordinating with the United States on the targeting using drones.

For more than 100 years, Australia has been a close U.S. ally; the country has supported the American military in every major war since the early 1900s. This relationship was formalized in 1951, when Australia and the U.S. signed the ANZUS Treaty, a mutual defense agreement. Australia is also a member of the Five Eyes surveillance alliance, alongside the U.S., the United Kingdom, Canada, and New Zealand. The countrys electronic eavesdropping agency, the Australian Signals Directorate, maintains extremely close ties with its American counterparts at the NSA. The agencies have a mutually beneficial partnership, according to one top-secret NSA document. While the NSA shares its technology, cryptanalytic capabilities, and resources for state-of-the-art collection, processing and analytic efforts, the Australians provide access to Pine Gap; they also hand over terrorism-related communications collected inside Australia, plus intelligence on some neighboring countries in their region, such as Indonesia, Malaysia, and Singapore.

The relationships foundations are strong, but some cracks may be beginning to appear. This was highlighted in late January when, after just two weeks in the Oval Office, Trump had a contentious first conversation with Australias prime minister, Malcolm Turnbull. Trump berated his Australian counterpart over the terms of a refugee deal and abruptly ended the call, describing it as ridiculous and unpleasant.

Meanwhile, Trump has adopted a more confrontational tone with China Australias top trading partner and he has threatened North Korea with fire and fury over its repeated missile tests. The situation has created a degree of uncertainty for Australia, and some in the country are pondering whether it is time to re-evaluate its traditional alliances.

There are changing moods in the United States, said John McCarthy, one of Australias most distinguished and experienced diplomats, who formerly served as the countrys ambassador to the U.S. So, we then need to think, should we try and develop closer security relationships with other countries in Asia? Should we seek to improve our overall structural relationship with China?

Were entering into a very, very fluid situation in Asia, McCarthy added. I dont know what the outcomes are going to be. But we have to be very, very nimble in terms of trying to create new structures, create new relationships, to be able to look at new circumstances from a very independent security perspective, if we are to do the right thing by the Australian people over the next generation or so.

Because of Australias proximity to the Korean peninsula, the North Korea issue is a particularly sensitive one. The city of Darwin in the Northern Territory is about 3,600 miles from Pyongyang, within range of an intercontinental ballistic missile strike. As such, the implications are severe for Australia: It could be dragged into a devastating conflict if the U.S. were to become embroiled in war with Kim Jong-uns rogue state. And despite its isolated position in the outback, Pine Gap would likely be at the forefront of the action.

Pine Gap literally hardwires us into the activities of the American military and in some cases, that means we will cop the consequences, like it or not, said Tanter, the University of Melbourne professor. Pine Gap will be contributing hugely in real-time to those operations, as well as in preparation for them. So whether or not the Australian government thinks that an attack on North Korea is either justified, or a wise and sensible move, we will be part of that, Tanter added. Well be culpable in the terms of the consequences.

The NSA and the Australian governments Department of Defence declined to comment.

This story was prepared in collaboration with the Australian Broadcasting Corporations investigative radio program Background Briefing and ABC News. Peter Cronau contributed reporting.

Documents published with this article:

Top photo: Australian Defence Facilities Pine Gap on Feb. 19, 2016.

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Dumping Trump. All You Need to Know About How He Could Legally Be Removed from the White House – Newsweek

Posted: at 5:57 pm

This article first appeared on Just Security.

There are many allegations against Donald Trump that may give rise some day to either criminal prosecution or congressional sanction.

But what precisely are the available options for the special counsel and for members of Congress? What is in their respective tool kits?

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Donald Trump walks toward Marine One on the South Lawn at the White House, on August 14, 2017 in Washington, DC. Mark Wilson/Getty

In this article, we explain a range of options (and the legal issues each raises): including indictment and prosecution, a grand jury statement of wrongdoing, impeachment, censure, and, for the sake of completeness, the Twenty-Fifth Amendment.

In light of reports that Special Counsel Robert Mueller is investigating Trump personally for obstruction of justice, an obvious issue is whether Mueller could ultimately seek to indict and prosecute the president.

The question whether a sitting president can be indicted has vexed generations of constitutional lawyers. The Constitution is silent on the subject and the Supreme Court has not squarely addressed the question.

Within the government, the issue has been considered on five occasions: twice by the Office of Legal Counsel (OLC), by the Solicitor General in the Watergate era, by the Watergate special prosecutor, and then again by the Office of the Independent Counsel in the Clinton era.

A split emerged in those opinions. In general terms, it is fair to say that the presidents immunity from indictment is an open question. The OLCs 2000 opinion, however, is presumably still the prevailing view at least for the Department of Justice.

It holds that a President cannot be indicted or prosecuted while in office, but that temporary immunity, the OLC states, would not preclude such prosecution once the Presidents term is over or he is otherwise removed from office by resignation or impeachment.

Perhaps the most widely held view, adopted by the OLC in memos from 1973 and 2000 and then-Solicitor General Robert Bork in a 1973 brief, is that the president is not susceptible to indictment and prosecution while in office. Broadly, the reasons supporting that position are twofold.

First, looking at the Constitutions text, some suggest that the impeachment procedure must precede an indictment. Article I, section 3 states:

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment, according to Law.

Some have argued that this language appearing to contemplate an indictment after an impeachment means that this is the only proper constitutional sequence. This reading has been abandoned for other offices including judges, vice presidents and cabinet officials, watering down its persuasiveness in the presidential context. The 1973 OLC memo didnt rely on it, but Nixon did in his briefs to the Supreme Court the next year.

The stronger argument is based on the unique position of the president in the constitutional structure. The president alone holds all federal executive power, including control of the army and navy, foreign affairs powers, control of executive departments, and the responsibility to execute laws. If the president were indicted, he could potentially be arrested, put on trial, convicted, and incarcerated.

Even if he were eventually acquitted, simply dealing with these processes would demand substantial attention. The OLC opinions in support of constitutional immunity reason that to subject the president to the criminal process would hopelessly handicap him from exercising his power.

That result would implicate the separation of powers by giving the judiciary the power to cripple the executive branch something the Supreme Court cautioned against when considering Nixons immunity from civil suit in Nixon v. Fitzgerald .

There, the Court stated that a president has absolute immunity from civil suit for official acts although that may not include other actions of a president while in office, or actions beforehand as the Supreme Court made clear in Clinton v. Jones .

(Note that Just Security s Ryan Goodman has recently published an analysis of Nixon v. Fitzgerald , arguing that a majority of justices suggested that a president is not immune from criminal prosecution during his term.)

The Bork briefwhich was substantially about the power to indict a vice president, but also considered the same issue vis-a-vis the president also points to the Twenty-Fifth Amendment, which establishes the succession of the presidency and a mechanism for replacing him if he is incapacitated.

[I]t is noteworthy that the President is the only officer of government for whose temporary disability the Constitution provides procedures to qualify a replacement, Bork wrote. This is recognition that the President is the only officer whose temporary disability while in office incapacitates an entire branch of government.

A related point, relied on in the OLC memos and the Bork brief, is that the president controls much of the apparatus surrounding criminal justice: prosecutions; evidence (through the power of executive privilege), and the pardon power. All of this means the common sense approach is to impeach and remove a president (and deprive him of the pardon power), and then prosecute him.

Thats the majority view, but the issue is not settled. Its a somewhat uncomfortable conclusion, running counter to the idea that nobody is above the law and giving the president a king-like immunity even for acts committed totally outside his official duties. Important legal figures have disagreed with it.

Notably, Watergate special prosecutor Leon Jaworski argued against presidential immunity from prosecution in a 1974 Supreme Court brief, following a memo from his staff.

In addition, a 1998 memo written for Independent Counsel Kenneth Starr by constitutional law professor Ronald Rotunda, mounts a strident case for the constitutionality of indicting a sitting president.

Savage calls this the most thorough government-commissioned analysis rejecting a generally held view that presidents are immune from prosecution while in office. At the very least, the 56-page memo is a testament to the debatability of the issue.

One note, though: Rotunda limited his advice to the context of Starrs investigation, whose powers and responsibilities were regulated by statute. That law is no longer in effect, and Robert Muellers position was created by Justice Department regulations instead of directly by congressional statute.

Its this contextual difference that led Rotunda to argue, in a recent op-ed, that while Starr could have indicted Clinton, Mueller cannot indict Trump.

In his Supreme Court brief, Jaworski argued that constitutional and public policy considerations actually cut both ways. The importance of the administration of criminal justice and the principle that under our system no person, no matter what his station, is above the law weigh against presidential immunity.

The Supreme Court took into account similar considerations when finding that Clinton could be sued for acts falling outside his official duties, in Clinton v. Jones . Speaking for the court, Justice Stevens wrote that neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.

The precise scope of the presidents civil immunity is still unclear, and would likely inform a courts evaluation of the scope of criminal immunity while in office.

On top of that, both Jaworski and Rotunda argue that the Constitution provides an explicit immunity for members of Congress, showing the framers turned their minds to the question, but none for the president.

Finally, Jaworski argued, impeachment can only follow high crimes and misdemeanors, which doesnt run the full gamut of criminal offenses. If impeachment had to precede indictment, this would leave a number of crimes which could go entirely unpunished.

Rotunda, in his memo for Starr, adds that impeachable offenses dont have to be violations of criminal statute, demonstrating that they are two different categories of acts.

Rotundas memo makes a couple of further points. First, he suggests that while a president can be indicted, it may be that any imprisonment would have to be deferred until after he leaves office.

He also offers a response to Borks Twenty-Fifth Amendment argument, suggesting that the amendment actually weighs against an immunity because it means there is a structural solution to the incapacitation of the executive branch that an indictment could engender. The vice president could temporarily replace the president if the the latter is disabled.

In the end, neither Jaworski nor Starr attempted to indict the presidents they were investigating. If Mueller were to attempt it, hed be breaking new ground.

But Muellers hands may be tied. The regulations governing his position specify that he must comply with the rules, regulations, procedures, practices and policies of the Department of Justice.

Which raises another contested legal question whether that phrase includes the previous OLC opinions concluding that prosecuting a sitting president is out of bounds.

If so, it wont be for Mueller to make up his own mind on the constitutionality question; hell just have to follow the conclusions expressed in the opinions. (Its for this reason that Rotunda concluded in his recent op-ed that Mueller cannot indict, while Starr could have.)

Whatever constitutional position is ultimately correct, we shouldnt assume the uncertainty necessarily means Mueller wont seek to indict him. As Professor Andrew Crespo points out, it hardly means he cannot be prosecuted.

On the contrary, a lawyers job is often to assess the relevant facts and legal arguments under conditions of uncertainty such as theseand then to make a judgment about how best to proceed. In this instance, that lawyers name is Robert Mueller. should he decide to take us down the road to United States v. Trump, he would be acting well within the law, the norms of the profession, and the reasonable bounds of the discretion with which he has been entrusted.

But he would also be acting professionally if he like Starr decided impeachment were the more appropriate course to pursue.

In the event that Mueller concludes that he cannot indict a sitting president, or that he has insufficient to support criminal liability, but his investigation still turns up evidence of wrongdoing, the grand jury has alternatives.

As Ryan Goodman and Alex Whiting unpack here and here, there are three other possible options. Congress can subpoena the grand jury evidence for the purpose of considering impeachment, which might then become public. The grand jury might also consider presentment, an official declaration that it would have indicted the president were it not for his current official position.

Goodman and Whiting write that this option is not necessarily precluded by any Justice Department legal opinion. Thirdly, the grand jury can use a special procedural device to produce a public report. Of course, none of these mechanisms are really punishment in themselves, but would enhance the presidents accountability.

Impeachment presents no such constitutional issues. Of course, politically its another matter because of the Republican-controlled Congress but there is no question that Congress is empowered to impeach a president.

Article II, section 4 of the Constitution provides that:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

A president can be removed when the House passes articles of impeachment specifying the basis of the impeachment (akin to an indictment) with a simple majority of those members present and voting once quorum requirements are met, and after a trial presided over by the Chief Justice, the Senate can convict with a two-thirds majority of the members present.

The Constitution says that impeachment can follow a presidents high crimes and misdemeanors, but it doesnt define that phrase. That means its in effect for the Congress to interpret, making it more of a political determination than a legal one.

Theres a good argument that several of the main allegations against Trump could justify an impeachment even without connection to an indictable crime. One boundary question is whether a president could be impeached for actions the person took before assuming federal office.

If those actions involved matters related to how the individual got elected, there is a stronger argument for them counting. A 2010 case will be relevant here: the situation of Judge Thomas Porteous, who was impeached and then removed from the bench.

One of the articles of impeachment cited conduct pre-dating his appointment, making false statements to the Senate and FBI in connection with his nomination and confirmation to the U.S. District Court for the Eastern District of Louisiana. He was convicted on that article.

Bill Clinton and Andrew Johnson (back in 1868) were impeached by the House. Nixon resigned ahead of his near-certain impeachment.

A measure short of impeachment that Congress could pursue is censure . It is notable that censure can come from either chamber of Congress, and does not require a super-majority of the Senate as with impeachment.

While constitutional questions have been raised about the practicewhich is not explicitly provided for in the Constitutionit is probably lawful. However, censure is seldom deployed and without legal effect. For more, read our deep dive into the scope and history of censure here.

A more outlandish proposal floating around is using a combination of legislation, a congressional commission, and the Constitutions Twenty-Fifth Amendment to oust President Trump.

Rep. Jamie Raskin (D-Md.) is sponsoring a bill designed to create a congressional oversight commission that could declare Trump incapacitated and have him removed under the Twenty-Fifth Amendment the provision introduced in the wake of Kennedys assassination to kick in when a president can no longer fulfil his duties.

Section 4 of the Amendment allows the Vice-President and a Cabinet majority to declare that the president is unable to discharge the powers and duties of his office, handing the reins over to the VP.

But the section also says a majority of such other body as Congress may by law provide can make the same declaration with the VP and its such an other body that Raskin is trying to create.

The plan would be to create an Oversight Commission on Presidential Capacity, staff it up with four physicians, four psychiatrists and three others (like former presidents) and direct it to examine the president to determine whether the president is incapacitated, either mentally or physically.

This kind of scheme is constitutionally possible, of course, but runs into political problems. Raskin needs to find enough votes not only to pass the legislation but to override the certain presidential veto.

Then, under the Amendment, if Trump challenged the finding and demanded to be reinstated, a two-thirds majority of both houses would need to block that challenge to sustain removal.

On top of that, Mike Pence would need to agree that the president was incapacitated in the first place. All of that seems incredibly unlikely. Even impeachment is simpler.

No president has ever been removed by impeachment. No president has ever been indicted. No president has been censured since 1860. And the Twenty-Fifth Amendment has never been invoked.

Each item on the menu of options laid out in this article has its own flaws and difficulties, and thats why they are so seldom used: indictment is constitutionally questionable, censure is on surer footing but lacks real bite, impeachment requires great political will, and the Twenty-Fifth Amendment requires political will and there are serious questions about its applicability.

Yet this has been a very unusual presidency, and many norms have fallen by the wayside in the wake of Trump. There may be more breaks with convention to come.

Hannah Ryan is a Junior Research Scholar at Just Security.

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After Charlottesville, the First and Second Amendments Are Under Fire – National Review

Posted: at 5:55 pm

A very strange thing has happened since last weekends dreadful violence in Charlottesville. White supremacists used virtually every form of weapon except guns, yet somehow the Second Amendment is now under fire. Even worse, those who lawfully exercise the right to keep and bear arms now have fewer defenders when they also choose to speak.

It started with Virginia governor Terry McAuliffe. In remarks that were oddly enough edited out of a New York Times article, McAuliffe claimed that 80 percent of the people here had semiautomatic weapons. He further asserted that militia members had better equipment than our state police. He also said that white supremacists had weapons stashed around the city.

The Virginia state police disputed the governors claims, stating that theyd specifically looked for weapons stashes and no weapons were located. Further, they assured the public that they were not outgunned by militias. A spokesperson said the police were equipped with more-than-adequate specialized tactical and protective gear for the purpose of fulfilling their duties to protect the people present at the protests.

No matter. Claims that gun-toting militia members had somehow chilled free speech rocketed around the Web. Yet who, exactly, was deterred from speaking last weekend? Not only were people speaking, they were shrieking, chanting, yelling, and arguing. Few were deterred even from brawling.

Then, yesterday, a more significant shoe dropped. The Wall Street Journal reported that the American Civil Liberties Union will no longer defend hate groups seeking to march with firearms. In other words, the groups anti-gun stance is now directly influencing its First Amendment advocacy. Its executive director, Anthony Romero, told the Journal that the decision was in keeping with a 2015 policy adopted by the ACLUs national board in support of reasonable firearm regulation.

For all its flaws and inconsistencies in other areas, the ACLU had been one of the last well-resourced national legal organizations that were truly non-partisan in defending First Amendment freedoms such as the right to march and speak in Charlottesville. Indeed, a local ACLU chapter had defended the alt-rights liberties at that very protest. But now the ACLUs message was clear: lawfully exercise Second Amendment rights, and well turn our backs on your First Amendment freedoms.

The law already prohibits true threats, and there are an array of legal restrictions on the place and manner of bearing arms depending on the jurisdiction and location. Under existing precedent, groups that engage in threats or violate local firearms laws face severe legal consequences. The ACLUs position, however, is that it will not represent a category of organizations that are completely compliant with the applicable laws.

The ACLU is a private organization, and it has complete discretion to choose its clients, but its action reveals the extent to which arguments about civil liberties are becoming dangerously partisan and short-sighted. The ACLU has enjoyed an enormous surge in membership and donations since itpositioned itself as the law firm of the #Resistance, but a number of these new members are completely ignorant of the organizations traditional First Amendment work and were furious when they found out the ACLUs role in protecting the alt-rights constitutional rights.

Thus, yet another negative result of last weekends deadly violence is that both the First and Second Amendments are under increasing cultural pressure. Rather than focus on the actual violence that caused so much pain and harm last weekend, activists are renewing calls for so-called hate-speech restrictions, and theyre increasing demands for restrictions on the right to bear arms. The ACLU is a key pressure point. Rights that dont enjoy a robust defense are not rights at all. The Constitution is not a self-executing document.

At this point, the gun-rights debate is almost beyond the reach of facts. A weekend that was notable mainly for an act of vehicular terror has become a pretext for discouraging the exercise of Second Amendment rights. Sadly, our First Amendment debates are racing in the same direction. All too many Americans seek the power to suppress and shame more than they cultivate the ability to rebut and persuade. Alt-right drivel isnt a threat to the constitutional experiment. A culture that values censorship over debate, however, is.

And lest we think these categories are easy, and that its possible to suppress the rights of the worst people without touching the civil liberties of the mainstream, consider this. I used to work at an organization that the Southern Poverty Law Center considers a hate group, the Alliance Defending Freedom. Its deemed a hate group in large part because it holds to an orthodox Christian view of sexual morality and gender identity. I hold those same views. Im also a concealed-carry permit holder. My wife and I carry a weapon virtually all the time because of threats, ironically enough, from the alt-right. Should the ACLU defend my right to speak?

Sadly, there are many Americans who would say no. They hate my viewpoint too much. They hate guns too much. The allure of power and control is too strong. They see little value in dissent, especially on the most sensitive cultural issues, and they utterly reject the concept of an armed citizenry. Yet even terrible crimes shouldnt cause us to retreat from our commitments to liberty.

Our constitutional republic and our culture of free speech have endured and prospered in the worst of attacks, events far worse than even the dreadful crimes in Charlottesville. It suffers, however, in the face of cultural retreat and surrender. The alt-right is too pathetic to warrant the slightest compromise. Yet thats exactly what the ACLU did, and short-sighted Americans applauded.

The alt-right hates American traditions and American liberties. Why grant it the slightest influence over American life?

David French is a senior writer for National Review, a senior fellow at the National Review Institute, and an attorney.

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After Charlottesville, the First and Second Amendments Are Under Fire - National Review

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ACLU Refuses to Defend Protesters Exercising First and Second Amendments Together – Breitbart News

Posted: at 5:55 pm

ACLU executive director Anthony Romero said, If a protest group insists, No, we want to be able to carry loaded firearms, well, we dont have to represent them. They can find someone else.

According to the Wall Street Journal, the policy shift that Romero highlighted is focused on hate groups, which are listed as white nationalists and neo-Nazis. Romero did not say whether ACLU protection would also be denied to Black Panther protesters who are armed or to communist party members who could rally for the left while armed.

The policy shift comes after the ACLUs Virginia branch helped organizers of the Unite the Rightprotest secure a permit to assemble in a Charlottesville park [on August 12]. When the city of Charlottesville pushed to move the protest away from the park, the ACLU stood by protest organizer Jason Kessler and won the day.

On August 15,Breitbart News pointed to Southern Policy Law Center (SPLC) reports that Kessler is rumored to be aformer Occupy Wall Street activist and supporter of former President Barack Obama.

According to SPLC:

Rumors abound on white nationalist forums that Kesslers ideological pedigree before 2016 was less than pure and seem to point to involvement in the Occupy movement and past support for President Obama.

At one recent speech in favor of Charlottesvilles status as a sanctuary city, Kessler live-streamed himself as an attendee questioned him and apologized for an undisclosed spat during Kesslers apparent involvement with Occupy. Kessler appeared visibly perturbed by the womans presence and reminders of their past association.

AWR Hawkins is the Second Amendment columnist for Breitbart News and host ofBullets with AWR Hawkins, a Breitbart News podcast. He is also the political analyst for Armed American Radio. Follow him on Twitter:@AWRHawkins. Reach him directly at awrhawkins@breitbart.com.

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How far do the First Amendment’s protections go when it comes to hate speech? – The San Diego Union-Tribune

Posted: at 5:55 pm

As a journalist, I like to think I know a little something about the First Amendment to the U.S. Constitution.

Like most students in the United States, I studied the Bill of Rights in grade school and learned the First Amendments protections by rote: freedom of speech, religion, assembly, petition and the press. (That last one is now my bread and butter.)

In later years, I dove a little deeper by reading landmark U.S. Supreme Court decisions in college like Tinker v. Des Moines Independent School District, in which the court found in 1969 that black armbands worn to protest the Vietnam War were protected symbolic speech.

That was the same year the court decided Brandenburg v. Ohio, and determined that government could not punish public speech, including that of KKK leader Clarence Brandenburg at a 1964 Klan rally, unless it is directed at inciting or producing imminent lawless action and is likely to spur such action.

Im no constitutional scholar, but I do know that protections exist even for hateful speech, the kind reported extensively in the aftermath of the white nationalist rally last weekend in Charlottesville, Va., where ensuing violence claimed the life of 32-year-old counter-protester Heather Heyer.

Even though most Americans would agree that the racist rhetoric spewed by Neo-Nazis, the KKK and other hate groups is vile and unsettling, many of us would likely also agree that it, too, must be shielded by the First Amendment to avoid creating an environment ripe for censorship and censure.

There it is, folks, the slippery-slope argument. End of story.

Well, not quite.

Im getting sort of sick and tired of all the absolute-constitutional-rights talk. Theres nothing absolute about constitutional rights, said Justin Brooks, a professor at California Western School of Law in San Diego.

Brooks said as much in a post he shared on Facebook last week, along with a photo of tiki-torch bearing white nationalists gathered on the University of Virginia campus. He added, Hate speech should not be protected speech.

The post attracted many responses and prompted a robust debate among friends and colleagues. It also prompted a call from the Union-Tribune.

Brooks said he disagrees with the U.S. Supreme Court, which has long held that there is no general exception for hate speech under the First Amendment, but has identified a few well-defined and narrowly limited exceptions that include obscenity, defamation, fraud, incitement and true threats.

(The court) has drawn the line you have to be inciting violence in order for it to be restricted, Brooks said. What bothers me about this discussion is it doesnt recognize how hurtful some of that hate speech is. At a certain point, speech can actually cause harm to individuals.

He said he understands the fear many Americans and the courts feel about the prospect of regulating hate speech, because defining it is subjective. But he argued that it is possible to draw a narrow definition that regulates public displays of hate, based on race, gender, nationality, ethnicity and sexual preference.

There is no doubt that the hate speech promoted by the KKK and Nazis causes harm to the members of our community who are targeted, Brooks said. Therefore, it is appropriate to regulate that speech.

He didnt need social media to know his views on the subject are unpopular, particularly among others in legal community. (See: slippery slope.)

Recently, the American Civil Liberties Union represented Jason Kessler, organizer of the Unite the Right rally in Charlottesville, in a lawsuit to keep the far-right groups permit to protest at a downtown park.

In response to criticism, ACLU Executive Director Anthony Romero wrote a statement explaining the nonprofits decision to represent white supremacist demonstrators in court. In it, he acknowledged that speech alone can have hurtful consequences, but argued that the airing of hateful speech allows people of good will to confront the implications of such speech and reject bigotry, discrimination and hate.

Preventing the government from controlling speech is absolutely necessary to the promotion of equality, he wrote.

dana.littlefield@sduniontribune.com

Twitter: @danalittlefield

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First Amendment in Peril? – City Journal

Posted: at 5:55 pm

In the marketplace, traditionally understood, when a company produces a poor product or mistreats its customers, it faces market disciplinenew ones come in and steal market share. Thats the theory, at least.

Too bad its not true right now, at least not on the Internet.

Google and Apple, with a combined 98 percent market share in mobile-phone operating systems, have banned Gab, an upstart Twitter competitor with a free-speech policy quaintly modeled on the First Amendment itself, from their app stores. Google cited hate speech as its reason for exclusion; Gab doesnt censor. What few people yet understand is that Google and Apple have used their duopoly status to revoke the First Amendment on mobile phones. Because the Internet is now majority mobile, and a growing majority of all web traffic comes from mobile devices, the First Amendment is now effectively dead in the mobile sphere unless policymakers act to rein in the tech giants who serve as corporate gatekeepers to digital speech.

Twitter ran into controversy last year when it was accused of censoring conservative voices. Gab founders Andrew Torba, an alumnus of Silicon Valleys prestigious Y Combinator accelerator, and Ekrem Bykkaya saw a market opportunity for a competitor focused on free speechnot just for conservatives but for dissidents globally. Last August, they launched Gab, a Twitter-like app where, according to company spokesman Utsav Sanduja, Whatever is permissible under the First Amendment is what Gab allows onto its site.

Gab grew slowly but has now reached over 200,000 usersa substantial number, though tiny compared with Twitter. It generated modest revenue through a freemium model, wherein users could pay to upgrade to a Pro level. Gab pulled off a coup by raising $1 million through crowd-funded investment. The company says that it is planning an Initial Coin Offering with its own digital currency based on the Ethereum standard. In short, Gab is a real company, with legitimate founders, a business strategy, revenue, more than 200,000 users, and seven-figure funding.

Apple and Google dont agree. Gab built an app for Apples iOS operating system, but Apple wouldnt approve it. This means that iPhone and iPad users cant use the Gab app because users cant install applications on those devices unless Apple approves them. Gabs Android app was available through Googles app store until yesterday, when Google banned it, citing violations of its hate-speech policy. In order to be on the Play Store, social networking apps need to demonstrate a sufficient level of moderation, including for content that encourages violence and advocates hate against groups of people, a Google statement read. This is a long-standing rule and clearly stated in our developer policies. While Android users can install unapproved apps, its a cumbersome process, and being kicked out of the app store reduces the apps reach.

No doubt, a number of far-right groups have found a home on Gab. I tried Gab myself when it first came out, finding it functionally an interesting mix of Twitter and Reddit, but with too many far-right users for my taste. So I dropped it. Gab also courted trouble with provocative moves like publicly announcing a job offer for James Damore after Google fired him and taunting Silicon Valley after its crowd-funding success. It also uses a green frog as its logo. Gab claims that this is not the controversial Pepe the Frog, identified with the alt-Right, but rather inspired by the plague of frogs from Exodus. Even if this is true, the logo choice seems like a deliberate provocation.

But its difficult to credit Gab as a white-supremacist site when its cofounder is a Turkish Kurd and Muslim. Bykkaya, who says Ive never supported Trump for a minute in my entire life, is concerned about speech repression in his part of the worldfor good reason, as Turkey is infamous for its violations of free speech and for locking up journalists. Gab spokesman Sanduja is a South Asian Hindu from Canada.

Gab points out that other major social-media platforms have hosted ISIS activity, and child-porn rings, facilitated drug dealing, and carried live streams of murder, torture, and other crimes. Yet all are still allowed by Google. Google itself actually hired Chris moot Poole, founder of the notorious website 4chan, known not just for offensive speech but also for the distribution of hard-core pornography. Police have made multiple child pornography arrests associated with 4chan. There remain multiple 4chan apps in Googles app store.

At a minimum, Apple and Googles decisions about offensive app behavior are arbitrary. This is a problem the market cant easily solvebecause there is effectively no market. Both the Apple and Google app stores are private markets owned by those companies, which act as their effective governments. You cannot easily start a new mobile business without their permission. If your app follows the First Amendment, theres a good chance that youll be rejected. Regardless of how one views Gab or any other application or group, two Silicon Valley companies should not be the governors of the mobile Internetwhich, in due course, may be indistinguishable from the Internet itself.

The mobile-Internet business is built on spectrum licenses granted by the federal government. Given the monopoly power that Apple and Google possess in the mobile sphere as corporate gatekeepers, First Amendment freedoms face serious challenges in the current environment. Perhaps it is time that spectrum licenses to mobile-phone companies be conditioned on their recipients providing freedoms for customers to use the apps of their choice.

Aaron M. Renn is a senior fellow at the Manhattan Institute and a contributing editor ofCity Journal.

Photo by Justin Sullivan/Getty Images

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