Compiled by Sarah Willrich.
Articles
Palestinian Islamic Jihad and the Gaza Ceasefire
In the latest edition of Lawfare’s Foreign Policy Essay series, Erik Skare explained the unique position of the Palestinian Islamic Jihad (PIJ) in negotiations between the U.S. and Hamas. Skare argued that the proposed peace deal, which would require all fighters in Gaza to put down their arms, gives the group a choice: set aside previous ideological commitments and continue its opposition through the electoral system or seek to take Hamas’s place as the face of armed Palestinian resistance.
So while PIJ could declare without any associated costs in its 2018 political document that “to disengage from the armed struggle is … a defiance of religion, to give up the homeland, and to betray the charters, covenants, and the values upon which societies, states, homelands, and nations are built,” it cannot afford today to be framed as a spoiler. The PIJ leader with whom I corresponded made it clear that PIJ does not aspire to obstruct the negotiations, just that it objected to the absence of Israeli obligations and guarantees. “PIJ has stressed the necessity that any agreement include mutual obligations, so that every step the resistance commits to is met with an equivalent and binding step on the enemy’s side,” he said. “Every clause obligating the factions must be matched by a clear clause obligating the occupation.”
Shutdown Reform’s Constitutional Blind Spot: The Two-Year Clause
Matthew B. Lawrence, Mark Nevitt, and Amelia Powell highlighted an easily missed concern with a proposed bill to prevent government shutdowns by funding the government automatically: it could violate the Constitution’s requirement that the army be funded for only two years at a time. The authors explained that though this is not the first time such automatic funding proposals have been considered, intervening court decisions have made their unconstitutionality even more apparent than when first proposed.
Observers including Rebecca Ingber and Harold Koch have described Congress’s appropriations power—the power of each chamber (House and Senate) to unilaterally deny the president necessary annual or supplemental funding for military campaigns—as one of its key remaining tools when it comes to foreign affairs. Even recently, Congress has refused to pass military appropriations in an effort to influence President Trump’s military actions in Iran.
Well-intentioned though it may be, the appropriation created by the Prevent Government Shutdowns Act could fund agency functions through 2027, 2037, or 2276. It creates the possibility of a permanently funded standing army and, thereby, gives away a key remaining tool of popular influence on national warmaking. For that reason, the Constitution forbids it.
OLC’s Dangerous, and Wrong, Opinion About the Posse Comitatus Act
Chris Mirasola broke down the Department of Justice Office of Legal Counsel’s new legal opinion that states military personnel can arrest individuals after they leave a national defense area. Mirasola argued the opinion ignores recent precedent on the Posse Comitatus Act, misinterpreting the requirements for off-base arrests and what constitutes an acceptable military purpose.
In a sign of things to come, the OLC cites none of these cases in its present analysis. Neither does reference, at all, to OLC’s long-standing practice of applying all three tests to proposed military activity. And it does not cite, again unlike in the first Trump administration, Laird v. Tatum, the most recent Supreme Court case to consider the PCA in significant detail. Instead, if relies on a 1978 memo that predates much of this case law to stand for the proposition that the PCA only “precludes ‘military personnel [from] applying force to the civilian community in the normal course of civil government’ and prevents ‘actual or threatened coercion by persons subject to military discipline on behalf of civil law enforcement officers.’” This, of course, creates the illusion that the relevant legal standard is far less onerous than it actually is.
Podcasts
Lawfare Daily: The Trials of the Trump Administration, August 21: Benjamin Wittes sat down with Anna Bower, Molly Roberts, and Eric Columbus to discuss Chief Justice John Roberts’s stay of the injunction preventing the construction of the White House ballroom, updates in the prosecution of Don Lemon, two courts of appeal ruling against acting U.S. attorneys, developments in the Kennedy Center litigation, and more.
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