The National Security Exception
Since the end of World War II, the Republican party has bashed the Democrats as weak on defense and generally not showing enough concern about protecting America’s national security. From the late 1940s until the collapse of the Soviet Union, Democrats were continually accused of being “soft on communism”. In the 1950s, it was the “Red Scare” where the GOP accused the Democrats of allowing those wily communists to infiltrate American government and media during the Roosevelt era and the Truman presidency. In the 1960s and early 1970s, it was Democratic opposition to the insane war in Vietnam that caused Agnew to declare Humphrey, of all people, a Neville Chamberlain-like appeaser. In the 1980s, it was the Democrats’ opposition to Reagan’s illegal wars in Central America which caused the President and others to describe them as “new isolationists” who did not understand the “strategic threat” posed by Nicaragua that would result in “another Cuba”, “a privileged sanctuary for terrorists and subversives just two days driving time from Harlingen, Texas”, and “a permanent staging ground for terrorism…just three hours by air from the U.S. border”. In the 2000s, it was opposition to the Iraq War, sold with lies, and the use of torture in defiance of American law that resulted in Democrats being called members of a fifth column in the US. The GOP ranting about how Democrats are betraying the nation by not recognizing the often mythical dangers posed by foreigners out to destroy America has been a staple for decades. And more often than not, Republicans have used this national security blanket as a political cudgel.
Of course, the national security concept has been abused by both parties when it comes to both overseas adventurism and infringing on the supposedly inalienable rights of American citizens. LBJ’s escalation of the war in Vietnam, the illegal monitoring of and spying on US citizens engaged in by J. Edgar Hoover’s FBI under both Democratic and Republican presidents, and G. W. Bush’s war in Iraq are all prime examples of such abuse.
But since 9/11, the national security exception has been used to essentially legalize what would normally be unthinkable violations of US law. Bush authorized the mass surveillance of US citizens as well as the kidnapping, rendition, and torture of foreign nationals, and Obama legalized the targeted killing of US citizens overseas. Trump has actually exploited these new powers far less than originally expected when he was inaugurated. He has instead used the national security exception to expand his powers into other areas not normally associated with national security or, at best, only tangentially related to it.
It all began, of course, immediately after Trump’s inauguration with the Muslim ban. The legal basis of that ban was an extraordinarily broad interpretation of the Immigration and Nationality Act that allows the President to unilaterally restrict entry to those deemed “detrimental to the interests of the United States”. The determination of who was detrimental to US interests seemed to be based more on the predominant religion in the countries banned rather than any other rational basis. And when the district courts originally suspended enforcement of the ban, the administration appealed on the basis of national security, with Trump rage-tweeting “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!”
That was followed by the imposition of steel and aluminum tariffs on China and Canada. The legal basis for this unilateral trade action was a rarely used provision of the Trade Adjustment Act of 1962, Section 232, which allowed the President to block imports deemed to be a national security risk without congressional approval or review by the US International Trade Commission. While Wilbur Ross and the Commerce Department dutifully made a finding that there were so few US steel and aluminum producers which therefore created a national emergency, that was belied by the fact the Secretary of Defense at the time, Jim Mattis, declared, “The U.S. military requirements for steel and aluminum each represent only about 3% of U.S. production. Therefore, DoD does not believe that the findings in the reports impact the ability of DoD programs to acquire the steel or aluminum necessary to meet national defense requirements”. This was Trump’s first truly bogus use of national security to take a unilateral action and, as I wrote at the time, the lack of pushback by Congress against it did not bode well for the future.
Having seen how easily and without constraint he could use the national security exception, Trump has turned virtual every administration policy into a national security issue. His subsequent additional tariffs on China were legally based a different section of the aforementioned 1962 Act and actually focused mostly on Chinese investments in US technology companies. In a similar vein, Trump has banned US firms from using Huawei and other Chinese technology companies by declaring a cybersecurity emergency. At least both of these actions had some weak but plausible claims of being national security issues.
Trump has also used that same 1962 law to recently declare that Japanese and European cars also presented a threat to national security but as yet has taken no action with regard to that determination. He has used a national emergency section of a 1977 law to threaten Mexico with tariffs in order to get them to stop the flow of migrants to the southern border.
After earlier attempts to subsidize the nuclear and coal industry failed, Trump again invoked national security to direct the Energy Department to take “immediate steps” to prevent any new closures of coal or nuclear plants. According to the proposal, “to promote the national defense and maximize domestic energy supplies, federal action is necessary to stop the further premature retirements of fuel-secure generation capacity”. The legal basis of the proposal was based on a section of the Federal Power Act that concerns war powers and the Defense Production Act that states that the President has power to “influence domestic industry in the interest of national defense”.
Trump declared a national emergency to send troops to the southern border which arguably violated the law against the use of the US military as part of domestic law enforcement. And, while there is certainly a crisis on the border, largely created by Trump policies alone, it clearly does not rise to the level of a national security emergency. Now NBC is reporting that military personnel are acting as unarmed prison guards in CBP detention camps with the additional responsibility of providing wellness checks to the migrants held there. According to the administration, these military personnel are merely monitoring the detainees and only interact with them as part of medical support which therefore means they are not violating the law against domestic law enforcement. This is like arguing that the soldiers in the guard towers at concentration camps aren’t engaging in law enforcement because they don’t directly interact with the POWs.
After Congress specifically refused to fund the border wall, Trump simply declared a national emergency on the border that would allow him to redirect previously allocated funds for military building projects and anti-drug programs in order to build his border wall. Said Trump, “It’s an invasion. We have an invasion of drugs and criminals coming into our country”. This unconstitutional power grab of Congress’ power of the purse was litigated all the way to the Supreme Court which last week ruled on an emergency application by the Trump administration to lift the lower court’s stay on the implementation of the plan. The Court, with its usual 5-4 conservative majority, did not rule on the actual constitutionality of Trump’s move but did declare that the actual plaintiffs in the case, the Sierra Club, did not have standing to pursue the case. But the Court did lift the lower court’s stay which effectively allows Trump to begin to use this money to build the wall. In doing so, the Court implicitly seemed to agree with Trump’s national security argument. This, again, does not bode well for the future, effectively eroding Congress’ constitutional power over governmental spending. In addition, Trump’s “emergency” will allow the government to use existing federal land to build the wall.
Similarly, Trump simply bypassed Congress entirely when he decided to sell over $8 billion in arms to Saudi Arabia using a provision in the Arms Control Export Act that allows the President to bypass Congressional review of arms sales if “an emergency exists which requires the proposed sale in the national security interest of the United States”. According to Secretary of State Mike Pompeo, “an emergency exists which requires the immediate sale…in order to deter further the malign influence of the government of Iran throughout the Middle East region”. While Iran is certainly a national security threat, the idea that it poses an immediate national security emergency is highly questionable. It is even more unclear why selling arms to Saudi Arabia in any way helps the US respond to the supposed immediate Iranian threat. In fact, it is the Saudis who are exhibiting the most adventurism in the Middle East with their ill-considered and deadly war in Yemen and the murders of Saudi political opponents one of whom, Jamal Khashoggi, was a legal US resident. In effect, this is just another effort to support the Saudi war in Yemen by doing an end-run around Congress which has tried to block US support for that war but could not overcome the President’s override.
Donald Trump may not have a full understanding of the Constitution when he declares “I have an Article II, where I have to the right to do whatever I want as president”. But he does seem to understand that simply declaring a national security emergency seemingly does give him that right. And the President will keep bashing that square peg of national emergency into the round hole of whatever policy he wants to implement until he is stopped. So far, the vast majority of Republicans in Congress have been happy to go along.
But the truly remarkable feature of Trump’s and the Republicans’ infatuation with the use of a national security emergency is that it is never invoked to combat the two real emergencies the country faces, election security and climate change. The recent Senate report on the Russian hacking of our electoral infrastructure in 2016 was especially frightening. As Josh Marshall notes, at every step along the way since the 2016 election, each succeeding analysis of the depth of the Russian hacking effort has gotten worse and worse. “First nothing. Then a few states. Then more states. Then probably all the states and at least some where the penetration was deep enough that actual vote total changes could have been made if they wanted to. We also learn that at least some of the intrusions were successful and Russian agents could have tampered with election databases if they wanted to”.
Needless to say, the drip, drip, drip of new information may simply be a result that investigators had to rely on investigations run by the individual states, many of whom were simply uninterested or, worse, unable to provide definitive information. But the fact that the story continually changes at each iteration raises more questions than it answers. In addition, with razor thin margins in three swing states, it seems inconceivable that the Russians would have gone to all that trouble and not have been tempted to change vote totals if they could. Again, as Marshall notes, it is quite possible that Obama’s warning to Putin to not interfere in the actual election may have prevented such tampering. And, so far, there is no direct evidence to indicate any vote tallies were changed. But, as we all know, absence of evidence is not evidence of absence.
According to reports, Trump considers any discussion about election security and foreign meddling as an attack on his legitimacy. According to Chief of Staff Mulvaney, the issue is not “a great subject and should be kept below his [Trump’s] level”. But an even greater bad actor regarding the attack on our democracy is Senate Majority Leader Mitch McConnell. It was McConnell, remember, who refused to join a bipartisan statement condemning Russian interference on October, 2016. Instead, McConnell threatened to claim that the Obama administration was itself interfering in the election in a partisan attempt to get Hillary Clinton elected. When confronted with a Russian attack on our democracy, McConnell chose party over country.
It has been remarkable how easily McConnell avoided criticism for that betrayal but his refusal to bring bipartisan election security bills to the floor in the wake of Mueller’s testimony that foreign powers are once again gearing up to interfere in the 2020 election has finally earned him the label “Moscow Mitch”. McConnell claims his opposition to these election security measures are based on his support for the constitutional provision that states are responsible for elections.
There may, however, be other, more important inflences on McConnell’s decision not to defend our democracy. Certainly McConnell’s bigger fear is that any election security negotiation could end up with discussions about campaign spending and the influence of dark money. As Senator Whitehouse tweeted, “Here’s Mitch’s problem: closing out foreign influence requires closing out anonymous influence…& closing out anonymous influence impedes the fossil fuel apparatus that is the political lifeblood of the Republican Party”. In addition, Mitch’s home state of Kentucky just received a $200 million investment from one of Oleg Deripaska’s firms shortly after McConnell got the Senate to lift sanctions on the Russian oligarch. Lastly, any Russian interference is bound to benefit Republicans in general as well as Trump, just as it did in 2016.
On the issue of climate change, the Republicans are clearly even worse. From the withdrawal from the Paris climate agreement, to the purging of climate change as an issue within federal agencies, to the rollback on emissions from coal-fired power plants, to the opening up of protected lands to mining companies, to simply selling plastic straws as a campaign fundraiser simply to own the libs, the Trump administration, supported by the Republican party, has been an environmental disaster. The party as a whole continues to engage in climate change denialism even as the Midwest is faced with historic floods and Texas and Puerto Rico are devastated by record-breaking hurricanes. And, as Whitehouse astutely noted, the biggest reason for that denialism is “the fossil fuel apparatus that is the political lifeblood of the Republican Party”.
When you look at the way Trump has used national security exception, the number and breadth of emergencies the country is facing is extraordinary, something that you would think would put the country on something equivalent to a war footing. But most of these “emergencies” are simply bogus, an excuse for Trump to implement policies without the usual Congressional oversight and providing a fig leaf for the conservative courts to declare legal. What is truly remarkable is that the national security exception is seemingly used for everything except true national security issues. And you can be sure that, should Trump lose in 2020, Republicans will go right back to calling Democrats weak on national security. And when the Democratic President actually does invoke national security, the GOP will rant that it is an outrageous abuse of power.