Ius Gentium

University of Baltimore School of Law's Center for International and Comparative Law Fellows discuss international and comparative legal issues


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TPS – A Viable Solution for Those Fleeing Gang Violence in El Salvador

Carolyn Mills

In San Salvador gang violence and killings are an everyday occurrence. Many people are fleeing the turmoil that the city is facing and heading to the United States in hopes of finding a safe haven. Temporary Protected Status, or TPS, could provide that safe haven. TPS  is granted to eligible nationals of designated countries suffering the effects of an ongoing armed conflict, environmental disaster, or other extraordinary and temporary conditions.[1] TPS could provide a potential solution to many escaping the threat of violence and the opportunity to live in the United States without fear of deportation.

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In the past 25 years since a civil war (with 75,000 civilian casualties), there has been a steady influx of El Salvadoran migrants to the United States. Gang violence and the recent breakdown of a truce between the country’s largest gangs, Barrio 18 and Mara Salvatrucha, has been the cause of the most recent spike in the countries death toll.[2] Newsweek reported that the onset of gang violence between rival gangs has skyrocketed, with a 70 percent increase in violent murders in the past year, overtaking neighboring Honduras in violence[3]. In fact, El Salvador has recently been named the most dangerous country in the Americas! In response to the violence, The Peace Corps has recently suspended all activity in El Salvador[4]. Unsurprisingly, the United States has seen an increase in Salvadoran migrants, often unaccompanied minors. Of the 4,450 people detained at the US-Mexico border in October and November 2015, 3,192 were unaccompanied minors. [5]

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On top of the massive gang violence, there have also been increased reports of human rights violations—instances of police and armed forces taking justice into their own hands and murdering innocent bystanders. [6] Some police are even calling for the extermination of area gang members.[7] In December 2015, the state Ombudsman of El Salvador found that 92% of the 2,202 human rights violations reported were from military and police personnel in the country.[8] In an effort to make El Salvador safer, it is apparent that due process of law and human rights are a sad casualty.

Those who are already in the United States are still living in fear. The Obama Administration has recently enacted a series of raids—deporting those on final orders of deportation. [9] Thus far, 121 adults and children have been taken and deported. Although none are from El Salvador yet, the fear remains the same in such a close-knit community.[10]

Some Salvadorans who are already here have been granted Temporary Protected Status (TPS). The most recent TPS status granted to Salvadorans was in response to the earthquakes in 2001 and has subsequently been renewed each year.[11]  TPS could be a viable solution. Not only does it provide El Salvadorans with some form of status, it would allow those who are proverbially ‘hiding in the shadows’ to come out and have proper work authorization.  By providing work authorization, individuals would pay taxes and become eligible for some public benefits. It would also stem the tide of legally insufficient asylum applications, which clog the already backed up immigration courts system.

Immigration Overload Flashpoint

A demonstrator that opposes illegal immigration, left, shouts at immigration supporters, Friday, July 4, 2014, outside a U.S. Border Patrol station in Murrieta, Calif. Demonstrators on both sides of the immigration debate had gathered where the agency was foiled earlier this week in an attempt to bus in and process some of the immigrants who have flooded the Texas border with Mexico. (AP Photo/Mark J. Terrill)

Conversely, some would argue that granting TPS would incentivize illegal immigration. However, I don’t think that’s the case. Fleeing on foot is not ideal. It’s expensive and risky. TPS does not provide a pathway to citizenship, but merely a band-aid, a temporary solution to a larger problem.

As a product of the DMV (DC, Maryland and Northern Virginia)—it’s hard. I have friends, neighbors and loved ones who have been impacted through this gang violence, whether fleeing from it or paying to keep their family members safe.

Without a doubt I am an advocate for the law and for justice, but I can’t see the justice in a system is that would deport people back into a chaotic and dangerous situation. It would be counterproductive to send human rights violators back to a country, while seemingly having no regard for the individuals who are being deported back into the same situation.[12] This is not to say that lawful immigration is not important, but what do you do when innocent people are being killed? There isn’t an easy solution, but I think that there is a very human side that many people aren’t seeing. These individuals are your friends and neighbors. They are people who have the same values as all of us. They want the same thing that you want – to live a life free from fear and to freely love and provide for their families.

Carolyn Mills is a graduate from of Bowie State University  and holds a Bachelor of Arts in Political Science. Carolyn is a 2L at the University of Baltimore School of Law. She serves as 2L Representative for the International Law Society.  Her interests and focus areas are on Central America and West Africa; she has traveled to both Guatemala and Honduras and hopes to visit Ghana this summer. She is currently a law clerk for the Department of Homeland Security’s Human Rights Law Section.  

[1] http://www.uscis.gov/humanitarian/temporary-protected-status

[2] http://www.newsweek.com/el-salvador-gang-warfare-death-rate-418201

[3] http://www.irishexaminer.com/world/el-salvador-is-worlds-murder-capital-374864.html

[4] http://www.telesurtv.net/english/news/El-Salvador-Voices-Concern-Over-US-Mass-Deportation-Plan-20160105-0032.html

[5] http://www.baltimoresun.com/news/maryland/bs-md-el-salvador-peace-corps-20160123-story.html

[6] https://www.opendemocracy.net/democraciaabierta/carlos-rosales-ana-leonor-morales/emergence-of-social-cleansing-in-el-salvador

[7] Id.

[8] http://www.businessinsider.com/militarized-police-violence-in-latin-america

[9] http://www.huffingtonpost.com/entry/obama-deportation-raids-families_us_568ac49ee4b0b958f65c5935

[10] Id.

[11] https://www.uscis.gov/humanitarian/temporary-protected-status/temporary-protected-status-designated-country-el-salvador

[12] http://www.theguardian.com/world/2016/jan/08/el-salvador-defense-minister-deported-us-human-rights-abuses

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U.S. and Cuba: Finally Defrosting from the Cold War

Annielle Makon

Historical Background 

The tumultuous U.S.-Cuba relationship has its roots during the Cold War. In 1959, Fidel Castro and a group of revolutionaries seized power in Havana, overthrowing President Fulgencio Batista.[1] The United States recognized Castro’s government, despite misgivings about his communist political ideology.[2]  However, by 1960, tension between Cuba and the United States grew when Cuba increased trade with the Soviet Union and increased taxes on American imports.[3] The United States retaliated by slashing Cuban sugar imports, and then imposing a ban on nearly all exports to Cuba.[4] President Kennedy then issued a full economic embargo that included travel restrictions.[5] By 1961, the United States had severed all diplomatic ties with Cuba and attempted to overthrow the Castro regime through covert operations.[6] The Bay of Pigs invasion has been widely regarded as a botched CIA back attempt to overthrow the government that led Cuba to allow the Soviet Union to build a missile base on their island.[7] This led to a twelve-day nuclear standoff between Cuba and the United States[8] Eventually, the Cuban Missile crisis ended with an agreement that the missile base would be dismantled and that the US would not invade Cuba additionally the US would remove its nuclear missiles from Turkey.[9]  Since then, the US and Cuba’s relation have been hostile at best.

US-Cuba-deal

Challenges Starting Anew

The US and Cuba held on to this Cold War grudge until December 17, 2014, when Presidents Barack Obama and Raul Castro announced a historical break in the relations between Cuba and the United States – the U.S. and Cuba would restore diplomatic ties.[10]  The attempt at normalizing diplomatic relations was facilitated, surprisingly, by Pope Francis and Minister Stephen Harper of Canada.[11] The change began with a prisoner swap and Havana’s release of a jailed U.S. contractor.[12] Furthermore, the United States eased restrictions on remittances, travel and banking.[13] In return Cuba released 53 political prisoners.[14] However, the U.S. trade embargo, which requires congressional approval to be rescinded, is unlikely to be lifted any time soon, due to opposition in Congress.[15] Both governments are learning that fifty years of isolations has not worked and there has been no improvement between the two nations.  This change is a long time coming.

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This historic step will open a new era of relations between the two nations.  It will help ease the tension, and the United States can help create stability to handle the economic, political, and social transformation that Cuba desperately needs.[16] For this reform to be effective each nation needs to adjust their hostile attitude towards the other. Cuba needs to readjust its socio-political institutionalism.[17] According to Human Rights Watch, Cuba continues to repress individuals and groups who criticize the government.[18]  By no longer isolating Cuba, the human rights situation in Cuba will hopefully improve and eventually lead to political reforms.[19]

Both countries are optimistic about progress occurring.  Although, it will take time so see the long-term impact, there are some immediate impacts occurring right now. The immediate change was reestablishing diplomatic relations that was severed in 1961. The U.S. is even attempting to reestablish an embassy in Havana.[20] Additionally, the U.S. is expanding travel to Cuba. There are some groups that fear that this not a positive step. The U.S. delegation voiced concern over the lack of freedom of expression and assembly in Cuba and the Cuban delegation responded stating that the U.S have issues regarding police brutality and inequality, and the issues surrounding the torture and indefinite detention of Guantanamo inmates. Moreover, President Obama is under pressure from Republicans to make a breakthrough with Cuba on human rights. The Cuban government has acknowledged that they have work to do regarding human rights.

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We know that the road to progress won’t be easy and it will be marked by personal limits, political errors and human fears. Many obstacles lay ahead for both countries to overcome, especially with the historical problems between them.  There is profuse distrust on both sides, yet it is a change that finally needs to start happening. So grab your passports and head to Cuba while you can!

Annielle Makon is a third year student at the University of Baltimore School of Law J.D. Candidate (’15). She holds a Bachelor of Arts in Political Science and a minor in Sociology from the University of Maryland Baltimore County. While studying Political Science, Annielle developed a passion for human rights and international relations. In addition to being a CICL Student Fellow, Annielle is an Associate Editor on the Journal of International Law. Annielle also interns at Amnesty International in the Sub-Saharan Africa unit.

[1] Danielle Renwick & Brianna Lee, US-Cuba Relations, Council on Foreign Relations (Jan. 20, 2015), http://www.cfr.org/cuba/us-cuba-relations/p11113.

[2] Id.

[3] Claire Suddath, A Brief History Of U.S.-Cuba Relations, Time  (Apr. 15, 2009), http://content.time.com/time/nation/article/0,8599,1891359,00.html.

[4] Id.

[5] Renwick, supra note 1.

[6] Renwick, supra note 1.

[7] Renwick, supra note 1.

[8] Renwick, supra note 1.

[9] Renwick, supra note 1.

[10] Renwick, supra note 1.

[11] Immanuel Wallerstein, Cuba and the United States Resume Relations: Happy New Year!, Common Dreams (Jan. 2, 2015), http://www.commondreams.org/views/2015/01/02/cuba-and-united-states-resume-relations-happy-new-year.

[12] Renwick, supra note 1.

[13] Renwick, supra note 1.

[14] Renwick, supra note 1.

[15] Renwick, supra note 1.

[16] Lenier González Mederos, Cuba and the United States: The Challenges of Starting Anew, Huffington Post (Jan. 29, 2015), http://www.huffingtonpost.com/lenier-gonzalez-mederos/cuba-and-the-united-state_1_b_6571814.html.

[17] Id.

[18] Renwick, supra note 1.

[19] Renwick, supra note 1.

[20] Charting a New Course With Cuba, WhiteHouse (Dec. 17, 2014), https://www.whitehouse.gov/issues/foreign-policy/cuba.


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The Israeli Parliamentary Elections & What They Mean For Israel-United States Relations

Yasmine Akkad

On March 17, 2015 Israeli parliamentary elections were held, resulting in the re-election of Prime Minister Benjamin Netanyahu of the center-right Likud party.  Despite Mr. Netanyahu’s eventual victory, the parliamentary race was a close one.  A poll from March 13, just a few days before the election, showed the center-left Zionist Union party in the lead.  Furthermore, comments made by Netanyahu in the days leading up to the elections, have stirred public debate.  Most notably, U.S. officials have publically denounced Netanyahu’s statements, highlighting the changing nature of U.S.-Israeli relations.

Israel Vote

Election Breakdown

Israel has a parliamentary system with the 120-seat parliament commonly referred to as the Knesset.   This system is based on nation-wide proportional representation, which means that voters elect nationally registered political factions—like Netanyahu’s Likud party—and not local candidates.  For Americans, who, unlike Israelis, vote for individual candidates, this type of electoral system is foreign.

Knesset elections must be held once every four years, though many coalitions do not survive a full term due to political instability.  Such was the case recently, when in December of 2014, the Israeli government collapsed.

Election turnout this year was 72.3%.  Netanyahu’s Likud party gained the most Knesset seats, with the Zionist Union party coming in second.  The Joint List, which is an Arab Israeli coalition, came in third.

Controversy

Prior to the elections, the Netanyahu Administration’s stance concerning Palestine was that a two-state solution was possible.  However, in the days leading up to the election, and in the face of unfavorable poll numbers, Netanyahu said he would not allow the creation of a Palestinian state if re-elected.  Furthermore, in order to mobilize more supporters, Netanyahu warned, “The Arabs are voting in droves.”  Arab Israelis make up about 20 percent of Israel’s population and 15 percent of the country’s eligible voters.

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Such remarks by Mr. Netanyahu were met with harsh criticism, particularly from U.S. President Barack Obama.  In an interview with the Huffington Post, Obama said Netanyahu’s remarks upended the Israeli-Palestinian peace process and ran counter to the very nature of Israeli democracy.  According to Obama, Netanyahu’s statements will discourage people from thinking negotiations are possible.  In regards to the comments about Arab voters “coming in droves” Obama said “we indicated that that kind of rhetoric was contrary to what is the best of Israel’s traditions—that although Israel was founded based on the historic Jewish homeland and the need to have a Jewish homeland, Israeli democracy has been premised on everybody in the country being treated equally and fairly.”  Obama warned that if people were not treated equally and fairly, democracy in the country would be undermined.

What This Means

Netanyahu has since apologized for his remarks and said he had not meant to offend Israeli Arab voters.  Mr. Netanyahu also softened his stance saying that he wanted a two-state solution, but that “circumstances have to change.”

Some may call Netanyahu’s apology progress, while others may call it back-pedaling.  Regardless, such public denouncements by Mr. Obama are not only harsh, but also indicative of the strained relationship between the two world leaders.  For example, earlier in the month, Netanyahu addressed Congress in a passionate speech about Iran.  The only problem was that U.S. House of Representatives Speaker John Boehner invited Netanyahu without consulting with President Obama first.  Ouch.

Netanyahu Congress

So, what does this mean?  The strained relationship between Obama and Netanyahu is undoubtedly tense.  But a lack of support for Netanyahu in the White House is not indicative of a lack of support for Netanyahu—after all, the Israeli leader was invited to address Congress.  So, despite what some may call a departure from normal U.S.-Israeli relations, the bond between the two countries will not be broken.  The United States has always been, and I think will continue to be, Israel’s biggest ally.

Yasmine Akkad is a second year law student at the University of Baltimore School of Law J.D. Candidate (’16).  She holds a Bachelors of Science in Law and American Civilization and a minor in English from Towson University.  Her primary interests include international law and international human rights law.  In addition to being a CICL Fellow, she competed in the 2014-2015 Jessup International Moot Court Competition, Mid-Atlantic Region. 

Sources

http://www.bbc.com/news/world-middle-east-31968676

http://www.ibtimes.com/israel-election-results-2015-what-does-future-hold-arab-political-power-1851294

http://www.israelelection2015.org/blog/2015/3/13/march-13-smithreshet-bet-poll

http://www.bbc.com/news/world-middle-east-32026995

http://www.nytimes.com/2015/03/22/world/middleeast/obama-says-he-told-netanyahu-that-campaign-talk-hurt-the-peace-process.html

http://www.bbc.com/news/world-us-canada-32044016

http://www.nytimes.com/2015/03/04/world/middleeast/netanyahu-congress-iran-israel-speech.html


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Unaccompanied Minors: Keep Them or Send Them Back? A Political Game

Annielle Makon

Tens of thousands of undocumented, unaccompanied immigrants under the age of 18 have crossed into the United States every year.[1] Since 2013, however, the United States has seen an unprecedented increase in the number of unaccompanied migrating children arriving to the country, predominately at the U.S./Mexico border.[2] The majority of the migrant children have come from Honduras, Guatemala, and El Salvador, three nations plagued by organized crime, drug trafficking, and widespread corruption.[3] Gang violence in El Salvador and in urban areas of Guatemala have escalated dramatically in recent months since a weak truce among rival gangs has evaporated.[4] Gang violence has plagued the youth, especially because the gangs are targeting schools and neighborhoods.[5] This massive influx of migrants is placing extra pressure on US lawmakers, spurring even more debate on how to reform immigration policy.[6] President Obama has even called the situation a humanitarian crisis and has sent federal officials to create temporary housing in three states for the migrant children.[7]

Migrant Surge

The Dangers of Migrating

Many flee to escape the horrors of their home country.  Unbeknownst to them, the horror of the migration journey is equally terrible. There have been stories of extreme danger and criminal mistreatment along their journey.[8] Child migrants have experienced abuse and violence at the hands of drug and human traffickers, and even law enforcement.[9] Women and girls are at a high risk for rape and sexual assault.[10] Minors who begin their journey to the United States sometimes find that what they had agreed to do in the US changed or they are required to work or provide sex to “clients” to pay off their debts.[11] Additionally, many of those who are accompanied by smugglers are abandoned at the first sign of trouble, left even more vulnerable than when they began their journey to the United States.[12] Even with these many dangers, migrants continue to make the journey because of the promise of freedom from violence motivates them.

U.S. Government (In)Action

The U.S. immigration system, as a whole, is long overdue for an overhaul. Republicans have passed legislation to force the Obama administration to quickly deport the undocumented immigrants.[13] Yet, the chances of that this legislation becomes a law are slim.

ImmigrantChildren

Currently, many of the unaccompanied minors are being sent to Arizona, though they will not stay there indefinitely.[14] The goal is to process each child within 72 hours and either turn them over to Immigration and Customs Enforcement (ICE) for deportation proceedings or to the Health and Human Services Department (HHSD) to reunite them with their families or place them in foster homes (pending deportation proceedings).[15] In addition, the Obama administration has partnered with the Mexican, Guatemalan, and Honduran governments by placing a public service announcement regarding the dangers of sending unaccompanied minors across the border.[16] Additionally, the Obama administration has stated that the unaccompanied minors are not entitled to any kind of residency or protected status.[17] Yet, they still come.

Domestically, there needs to be reform within the court system. There are roughly 260 immigration judges in the United States and each judge hears about 1,500 cases annually.[18] The unaccompanied Mexican and Central American minors seeking asylum is not as simple as cases from other countries since they often take longer to adjudicate.[19] Whether asylum can be granted to the unaccompanied minor depends on the ability of the minor’s home country government to control non-state actors.[20] Backlog cases have not been this high since 1994, when there were nearly 425,000 cases pending.[21] Yet, they still come.

ChildMigrants

Internationally, the United States owes these children no legal duty. The United Nations Convention on the Rights of the Child (the Convention) is an international human rights treaty that sets out the civil, political, economic, social, health, and cultural rights of children.[22] The Convention defines a child as any individual under the age of eighteen and requires that the state act in the best interest of the child.[23] Article 19 of the Convention states that the parties must “take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence.”[24] Therefore, nations that ratify this convention are bound to it by international law.[25]  Although, the United States played an active role in drafting the Convention they have yet to ratify it.[26]  The Convention is unlikely to be ratified in the near future because it forbids both the death penalty and life imprisonment for children.[27] Therefore, by not ratifying the treaty the United States owe no international obligations to the unaccompanied minors. Yet, they still come.

This immigration problem is a complex issue with no easy answers. The main issue should be addressing the root causes of the flight and protecting the children in the process. The US and Central American governments need to address the economic and violence issues that cause these minors to flee. Most importantly, we need to stop treating child migration the same as adults. They should be treated and protected as children. The US government needs to focus its priorities on protection and less on enforcement. These children are in need of protection, not deportation.

Annielle Makon is a third year student at the University of Baltimore School of Law J.D. Candidate (’15). She holds a Bachelor of Arts in Political Science and a minor in Sociology from the University of Maryland Baltimore County. While studying Political Science, Annielle developed a passion for human rights and international relations. In addition to being a CICL Student Fellow, Annielle is an Associate Editor on the Journal of International Law. Annielle also interns at Amnesty International in the Sub-Saharan Africa unit.

[1] Jonathan Ernst, Record number of undocumented minors entering US – report, Reuters (January 31, 2014) http://rt.com/usa/record-undocumented-minors-entering-us-441/.

[2] Mark Seitz et al., Report of the Committee on Migration of the United States Conference of Catholic Bishops, United States Conference of Catholic Bishops (November 2013) http://www.usccb.org/about/migration-policy/upload/Mission-To-Central-America-FINAL-2.pdf.

[3] Ernst, supra  note 1.

[4]Id.

[5]Id.

[6] Ernst, supra note 1.

[7]Bob Ortega, 5 answers: Why the surge in migrant children at border?, The Republic (June 10, 2014) http://www.azcentral.com/story/news/politics/immigration/2014/06/09/immigrant-children-arizona-border-answers/10246771/.

[8] Seitz, supra note 2.

[9] Seitz, supra note 2.

[10] Seitz, supra note 2.

[11] Seitz, supra note 2.

[12] Seitz, supra note 2.

[13] Evan Perez, Number of unaccompanied minors crossing into U.S. tops 60,000, CNN (August 2, 2014) http://www.cnn.com/2014/08/02/us/border-crisis-milestone/index.html.

[14] Ortega, supra  note 7.

[15] Ortega, supra  note 7.

[16] Ortega, supra  note 7.

[17] Ortega, supra  note 7.

[18] Hayley Munguia, The Unaccompanied Minor Crisis Has Moved From The Border To The Courts, Fivethirtyeight (October 2013) http://fivethirtyeight.com/datalab/the-unaccompanied-minor-crisis-has-moved-from-the-border-to-the-courts/

[19] Id.

[20] Id.

[21] Id.

[22] Convention on the Rights of the Child, Sept. 2, 1990, A/RES/44/25.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id.


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Authorization to Use Military Force Against ISIL: What the President Wants and Why it Doesn’t Matter

Matt Matechik

What did President Obama “ask” Congress?

On February 11, 2015 President Obama formally approached Congress and implicitly sought their approval to use American military force against the Islamic State of Iraq and the Levant (ISIL). Specifically, the President submitted a draft joint resolution Authorization to Use Military Force (AUMF) and encouraged Congress in a formal letter to pass it.[i]

If passed in its current draft form (highly unlikely), the AUMF would grant the President Congressional approval to use American military forces against ISIL “and associated persons or forces” for a period of up to three years. The draft does not impose any geographic restrictions. Therefore, the President would be authorized to conduct military operations against ISIL in Iraq, Syria, Libya (where ISIL appears to have gained a foothold[ii]) and absolutely anywhere else in the world he deems “necessary and appropriate.”[iii] (NOTE: The AUMF only gives the President the domestic legal authority to enter into either Iraq, Syria, Libya, or other states. This blog will not deal with the international authority the President has to do so.)

Although the draft AUMF would not limit the location of military operations, it does purport to limit their scope. The draft prohibits activity that rises to the level of “enduring offensive ground combat operations.”[iv] The administration claims that this phrase prohibits large-scale long-term military campaigns such as those recently conducted by the United States in Afghanistan and Iraq. However, the stipulation would not prohibit the use of ground forces for less involved purposes such as rescue operations and pursuit of ISIL leadership. Additionally, the AUMF would allow “the use of U.S. forces in situations where ground combat operations are not expected or intended, such as intelligence collection and sharing, missions to enable kinetic strikes, or… other forms of… assistance to partner forces.[v]

This draft language, even with the limitation, is actually very broad, despite what some members of Congress are claiming. The draft intentionally uses open-ended phrasing that President Obama could potentially cite in committing American forces to ground combat.

AUMF ISIS Blog

Why did the President reach out to Congress?

President Obama approached Congress as part of his “commitment to working with Congress… to authoriz[e] the continued use of military force to degrade and defeat ISIL.” The President urged Congress to “join [him] in supporting our Nation’s security… which would show the world we are united in our resolve to counter the threat posed by ISIL.”[vi]

Did the President really “ask” Congress for anything?

No! The language of President Obama’s letter to Congress is extremely precise. A careful reading reveals that the President is not actually asking Congress for anything at all. To the contrary, the letter explicitly states that he already has all the authority he needs.[vii] The President is simply inviting Congress to provide their stamp of approval for military action that he is already undertaking and presumably will continue to undertake with or without Congress.

President Obama’s posture is not surprising. Historically, the sitting President, no matter his party, and Congress have performed a delicate dance around the subject of who controls the use of American military force abroad. The tension between the executive and legislative branches stems from the Constitution, which confers upon the President unspecified powers commensurate with the title “Commander in Chief” while endowing Congress with numerous specific war powers including, but not limited to, the power to “declare war” and “organize, fund, and maintain the nation’s armed forces.”[viii]

What about the War Powers Resolution?

This “dance” took on its modern form in 1973 when Congress passed the War Powers Resolution (WPR) to “to 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 hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations.”[ix] The WPR, at least on paper, requires the President to involve Congress at various points before, during, and after his decision to use force. One of its most controversial provisions requires the President to terminate military action within sixty days of its initiation unless Congress has declared war, extended the sixty-day period, is physically unable to meet, or provided statutory authorization.[x]

In practice, the WPR has done little to prevent the President from unilaterally committing American forces to foreign theatres. The sitting President, no matter his party, typically finds some way to circumvent the WPR’s purpose of involving Congress while still purporting to be consistent with the WPR. The President usually claims he already has all the authority he needs by virtue of his title as Commander in Chief and/or he interprets a statute in a particular way to find the Congressional approval he needs.

AUMF ISIS Blog 2

Sixty Days?! Haven’t we been fighting ISIL for months?!

Yes! The present scenario illustrates the WPR’s questionable influence. President Obama initiated a sustained air campaign against ISIL targets in Syria on September 22, 2015.[xi] Since that time there has been no declaration of war, no extension of the sixty-day period, and no problems with Congress meeting. Under the WPR, President Obama therefore has two choices: obtain Congressional statutory approval for the military action sixty days after initiation or terminate the mission. And yet, only now, 142 days later, far past the sixty-day deadline, is the President seeking statutory authorization and, as noted above, he is not truly even asking for it.[xii]

It should be noted that President Obama’s apparent disregard for the WPR is not unique to his administration. President George H.W. Bush ordered thousands of American servicemen to Somalia during December 1992 without explicit approval from Congress. He “found” statutory approval for the military deployment by broadly interpreting a statute that supported a US humanitarian mission in Somalia. President Bill Clinton ordered over 20,000 American troops to invade Haiti during September 1994 without explicit approval from Congress. His primary argument for nixing Congress was that the operation did not rise to the level of “war” requiring a declaration and therefore Congress need not be involved. These are only a few examples of many.

What happens now?

War (at least the political kind)! Congress must debate the draft AUMF and then either pass it as written, pass it with changes, or pass no AUMF at all. Ultimately, whatever Congress decides will not matter. If they pass any AUMF, the granted authority will be largely for symbolic purposes only. If they do not pass an AUMF, it is all but certain that President Obama will continue to commit American forces to the fight anyway. For the President, it’s a win-win. He will either by a wartime Commander-in-Chief enjoying the support of Congress as he battles America’s enemies abroad or he will be the President who was willing to stand up to the evil that is ISIL when Congress seemingly refused.

AUMF ISIS Blog 3

The political game surrounding the draft AUMF is likely to continue for some time. Politicians will squabble and legal scholars will debate the legal powers of he executive and legislative branches. Meanwhile, the United States is already at war with ISIL, regardless of who formally signs off on it, and will be for the foreseeable future.

Matthew Matechik is an Evening J.D. student at the University of Baltimore School of Law (Class of 2016). He currently works full-time for the U.S. Federal Government as a Counterterrorism Analyst. He has a Bachelors of Arts (Magna Cum Laude, 2008) from Florida State University. All views in this blog post are Matthew’s own views and do not represent that of the U.S. Government. 

[i] http://www.whitehouse.gov/the-press-office/2015/02/11/letter-president-authorization-use-united-states-armed-forces-connection

[ii] http://www.telegraph.co.uk/news/worldnews/islamic-state/11418966/Islamic-State-planning-to-use-Libya-as-gateway-to-Europe.html

[iii] http://www.whitehouse.gov/sites/default/files/docs/aumf_02112015.pdf

[iv] http://www.whitehouse.gov/sites/default/files/docs/aumf_02112015.pdf

[v] http://www.whitehouse.gov/the-press-office/2015/02/11/letter-president-authorization-use-united-states-armed-forces-connection

[vi] http://www.whitehouse.gov/the-press-office/2015/02/11/letter-president-authorization-use-united-states-armed-forces-connection

[vii] http://www.whitehouse.gov/the-press-office/2015/02/11/letter-president-authorization-use-united-states-armed-forces-connection

[viii]  U.S. Const., art. II, § 2, cl. 1, U.S. Const., art. I, § 8, cls. 1114.

[ix] 50 U.S.C.A. § 1541.

[x] 50 U.S.C.A. § 1544.

[xi] http://www.whitehouse.gov/the-press-office/2014/09/23/statement-president-airstrikes-syria

[xii] President Obama seems to be keeping the 2001 AUMF in his back pocket to claim Congressional authorization even if Congress does not pass an ISIL-specific AUMF. The 2001 AUMF authorized the President to use force against “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11,  2001, or harbored such organizations or persons, in order to prevent any  future acts of international terrorism against the United States by such nations, organizations or persons.” The Obama administration suggested as early as September 2014 that they could rely on the 2001 AUMF. See http://www.whitehouse.gov/the-press-office/2014/09/23/background-conference-call-airstrikes-syria. This position is problematic given that ISIL, a new group distinct from al-Qaida, had nothing to do with the September 11 attacks.


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Terror Victims’ Pursuit of Justice and the Necessary Limitations of Courts

Clark Smith

In a decision last month that reverberated most through the international banking community, a Brooklyn jury in a federal trial held liable Arab Bank for “providing material support to Hamas.”  In Linde v. Arab Bank, families of a number of American victims of terror attacks in Israel, Gaza, and the West Bank during Palestinian uprisings from 2001 to 2004 were pitted against an international bank with branches in those areas.  Filing suit in 2004, the victims’ families accused Amman-based Arab Bank of knowingly assisting Hamas financing a “death and dismemberment benefit plan” for martyrs and their families.  The case itself was described by lawyers as significant because it was the first civil case pertaining to terror financing to reach trial in a US court.  Despite the outcome, and noting that damages have yet to be addressed, attorneys for Arab Bank predict the verdict will be overturned on appeal due to errors pertaining to, among other things, the threat of sanctions against a foreign bank for failing to turn over lawfully private customer data.  In addition to the concerns of the international banking community, the verdict also raises questions about the impact to US intelligence efforts in tracking terrorist actions via their financial activities and to the President’s ability to carry out foreign affairs without interference from the Article III judiciary.

suicide-bomber-jerusalem

Since 9/11, the financial industries, indeed many technology-based data transfer industries, have stepped up their cooperation with governments’ anti-terror efforts.  But this verdict could lead to US-based banks severing relationships with foreign banks and customers, thus increasing the challenge to intelligence and other national security organizations in tracking terrorists’ financial networks.  Banking industry officials point out that the verdict may lead to US banks limiting risk by limiting business in designated regions.  The market for such illicit services will not diminish, however, but instead be driven deeper underground where they become much more difficult, and require more resources, to track.  Prudently, banks are likely to await the outcome of the appeal before taking specific actions to limit their risk.  But while governments’ ability to successfully track terrorists’ illicit financial networks is also at risk, a likely greater concern is the President’s ability to carry out the nation’s foreign affairs reasonably unimpeded.

Financial District And Banks In Jordanian Capital

While Arab Bank intends to address a number of substantive errors on appeal, their primary complaint was their inability to present a proper defense after being sanctioned for refusing to provide customer records protected by Jordan’s privacy laws.  The judge further permitted jurors to infer from the bank’s refusal to violate the Jordanian privacy laws that Arab Bank knowingly and willfully aided terrorists.  The State Department had urged the White House to support Arab Bank’s position in an amicus brief to the Supreme Court, asserting that forcing the bank to proceed under the sanctions put at risk a number of US foreign policy goals, including Middle East peace efforts.  Although the White House ultimately asked the Court not to review the issue, the Solicitor General’s amicus brief pointed to a number of lower court errors in their analysis which could undermine the President’s ability to carry out foreign affairs.

“The lower courts erred in suggesting that petitioner’s reliance on foreign bank secrecy laws in this private action did not reflect good faith simply because petitioner previously produced some of the documents to the Departments of the Treasury and Justice.  That reasoning fails to account for the distinct United States and foreign interests implicated when the government, as opposed to a private party, seeks disclosure.  It also threatens to undermine important United States [] national-security interests by deterring private entities and foreign jurisdictions from cooperating with government requests.  The United States has a compelling sovereign interest in obtaining documents located abroad for use in [] proceedings through which the government [] protects the Nation.  When it decides whether to seek documents assertively covered by foreign bank secrecy laws, the government balances the need for the information sought and the public interest in the investigation against the interests of the foreign jurisdictions where the information is located and any potential consequences for our foreign relations.”

The exterior of the U.S. Supreme Court is seen in Washington

Article III of the Constitution does provide that judicial power extends to various enumerated “cases and controversies,” some of which will certainly relate to foreign affairs.  But past Court opinions have acknowledged the Article III courts’ “customary policy of deference to the President in matters of foreign affairs.”  As the Solicitor General points out, courts should weigh the interests of private citizens’ claims against the interests of the US in conducting the nation’s foreign affairs.   But in so weighing such matters, courts should not invade this province of the Executive.

This case, weighing private citizens’ interests against those of the Administration in carrying out its foreign policy, will certainly be worth following on appeal.  In the unlikely event that the decision is upheld, the effects on national security and broader foreign policy interests could have far-reaching consequences on how the US engages abroad, friend and foe alike.

 

Clark Smith is a third-year law student pursuing a concentration in International Law. He has undergraduate and graduate degrees in Political Science and International Relations. In addition to being a Student Fellow, he is the Submissions Editor for the Journal of International Law. His previous experience includes work in both security and policy and his previous overseas postings include Western Europe, the Balkans, the Middle East, and South Asia. His professional interests include international development.

 

 


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Eliminating the IS Threat – Why a U.S. Led Coalition Was the Only Way It Would Work

Lindsay Stallings

The Islamic State (IS), also known by the acronyms ISIS (Islamic State of Iraq and Syria) or ISIL (Islamic State of Iraq and the Levant), has been growing in their power and their influence around the Arab world. However, while they are creating a daily panic in Syria and Iraq, they are causing great concern for the rest of the world.  IS is largely autonomous. They have stolen, robbed, or bartered for their money, weapons, and even slaves. The international concern for IS’ activities stems not only from their humanitarian violations against those in Syria and Iraq; but more, the fear that comes from their sheer power. It is for this reason that President Obama, who had once had been so adverse to relying on the 2001 and 2002 AUMFs, felt it necessary to rely on these very legal instruments to bolster his arguments for air strikes against IS. In doing so, he has made his smartest and most mature foreign policy decision of his Presidency – taking charge and leading a coalition of states in eliminating the IS threat.

In the middle of August of 2014, IS released their first viral video – the beheading of American journalist James Foley, who was beheaded for the sins of the Americans. They have beheaded innocent people, have raped and pillaged villagers, and have terrorized countless populations; and there seems to not be an end in sight. [1] President Obama has admitted that US intelligence on the strength of IS was lacking.[2] Over the past few years of Syrian unrest, IS has been able to use widespread lawlessness to recruit and develop their jihad. The United States, along with five Arab nations and France,[3] began air strikes against IS two weeks ago. From outside reports it seems that strikes are currently being aimed at infrastructure and oil strongholds.[4] Thus far, there is a general avoidance of targeting individuals and more of a focus on materials. This makes it clear that the US and their allies recognize the importance of IS’ resources. It is obviously important to not underestimate the strength of IS’ message, both in the Arab world and globally, but their resources will run out long before their passion for the advancement of the Islamic State and, in reality, the loss of resources will hurt them first.  However, to compound the obvious hole in U.S. intelligence, an IS combatant has publicly stated that IS was prepared for the U.S. airstrikes, claiming they have been ineffective against IS.[5] _77944799_iraq_syria_air_strikes_624_01_10_14_v2 The US made the first move on the airstrikes and did so without the full support of the international community. Should the world and, potentially more importantly, US citizens take notice of this deviation in President Obama’s approach to unrest in the Middle East? In a time when the US is fighting an image battle in the Middle East, this was a bold move, and one that seems to have been made less for political reasons than it was for moral ones. It is worth a great deal of commendation that our administration is willing to take this step. Mind, we are not doing this alone, there are multiple Arab countries fighting for their own borders, along with French, British, Belgium, and Danish support, a total of fifty countries have signed on to support the airstrikes.[6] This support comes in the form of ground support, air support, and of course, political support. But, this all began before President Obama went to the United Nations. Before he was forced to explain why the US thought they could, should, and had the right to get involved. The event to be considered here is why the President of the United States decided to commence air strikes and then, at least two weeks later, plead with the international community for their support and encourage action to be taken against ISIS. During the course of his presidency, President Obama has rarely taken international action without wandering around the world, garnering as much support, either implicit or explicit, as he could. But here, he essentially said, “World, we know what we are going to do to deal with this -what are you going to do?” UN-SECURITY COUNCIL-OBAMA This shows a certain level of foreign relations maturity on the part of POTUS. He and his advisors made a decision that we could not stand by and let ISIS terrorize Iraq, Syria, Christians, Jews, the Yazidi (a Kurdish ethno-religious community who practice Yazidism in Iraq), and threaten to lash out at America, without doing something. The President ran his first campaign on the auspices that the “War On Terror” must end. He ended the war in Iraq, he started to pull out of Afghanistan – and is continuing that effort for all intents and purposes – but the Middle East is still in constant, bubbling, turmoil. And, in the end, the US is the US. The world’s savoir, the moral-driven, freedom to all races and creeds-focused, rescuer of all, right!? But, is that our job? Is that the job of the American Armed Forces to step in and save all of those deemed unable to save themselves? I think that President Obama’s decision to direct airstrikes against IS is indeed his most mature foreign policy move to date. He did not wait for the rest of the world powers to support him, he did not ask permission from anyone aside from Congress[7], and did what was right for the United States and the areas in the Arab world we have taken responsibility for over the last ten years. It would have been sadistic on the part of the U.S. to just sit back and watch as Iraq, a country we essentially decimated over the past decade, to struggle to fight this new radical bastardization of Islam that currently terrorizes them. The US took on this responsibility in 2001. We tried to establish communities and governments that would help the weakened and tired populations of the Arab world. We tried to empower them and build democracy. It has not worked yet and we are, clearly, not done. So, when a new group rises up, a group more terrifying than Al-Qaeda has ever been, we cannot step away. The President put on his ‘I am a world leader’ pants and he worked with those who were suffering the most. He created a coalition of the willing and took responsibility for the role the United States played in allowing this to happen. French When President Obama spoke to the United Nations he did not tell the world that we were doing the right thing for everyone. He made it clear that this was important to the US, and why. He did not tell the United Nations that the US was better than the rest of them for taking action; he actually made clear that the US has struggles too.[8] There are school shootings, race riots, militarizing police forces, renegade shooters targeting law enforcement officers, individuals setting wild fires – the list of domestic struggles the US is facing is not less than that of any other country. And finally, President Obama recognized that by not pretending we were better than every other country, those countries were more willing to listen to our silent pleas for help. The President was begging for other countries to step in, to step up and recognize that the threat from IS is not just against those in the Arab world or just against the US, it is a threat to the general level of safety most citizens of the world feel as they go about their daily lives. The French joined in the airstrike offensive on September 19 with the US and Arab partners.[9] Thus far, France has only acted in Iraq, wary to move into Syria and encourage any more disturbances. However, as of Friday, September 25, they have said they are considering moving into Syria on the tail of a French tourist’s beheading by an Algerian terror organization.[10] Yesterday, the UK carried out its first air strikes in Iraq[11]  after voting last Friday to authorize action in Iraq.[12] No mention was made of the UK going into Syria, which shows that they too are wary of moving into an area where they are not invited. UK Parliament Each country currently involved or considering involvement in this offensive is doing so for country-specific reasons, not based on the perceived duty owed to the international community as a whole. A sense of general duty did not work as well as they hoped ten years ago in Iraq, but maybe this time there will be more successful. Personal involvement, a sense of devotion the protection of oneself, will hopefully deal with this matter with less bureaucracy and more effectiveness. Only when there is an understanding that this is not only a worldwide threat but also a worldwide responsibility can we finally defeat IS.

Lindsay Stallings is third year student at the University of Baltimore School of Law, planning to graduate in May 2015 with a J.D. and concentration in International Law. She graduated from The Ohio State University in June of 2011 with a Bachelors of Science in Political Science with minors in Sociology and International Studies. She has also studied  Spanish and Arabic language and culture extensively. While at The Ohio State University, she was a member of the International Affairs Scholars program, through which she studied abroad in Bulgaria. She was active in the Undergraduate Student Government and was a member of various academic and student life university-level committees.  Her primary interests are international law, national security, and U.S. Military and diplomatic policies. Through her coursework and relationships with our international law faculty she has developed a more focused interest in the policies surrounding international conflict and the capabilities of international courts. Lindsay currently serves as the Careers Director on the International Law Society and is a Staff Editor on the Journal of International Law. Her legal coursework and extracurricular activities have given her the opportunity to mold her passion for cultural studies and problem solving into an exciting international legal career.

[1] Rod Mills, Family anguish over Glasgow schoolgirl turned jihadi (Sep. 4, 2014) http://www.express.co.uk/news/uk/506765/Family-anguish-over-Glasgow-schoolgirl-turned-jihadi; Teenage jihad: 2 Austrian girls stopped en route to join ISIS, (last edited Sep. 10, 2014) http://rt.com/news/186536-austria-schoolgirls-join-isis/.

[2] Stephen Rex Brown, President Obama admits U.S. ‘underestimated ISIS’ strength – but knocks other superpowers for failure to act (Sep. 28, 2014) http://www.nydailynews.com/news/politics/obama-admits-u-s-underestimated-strength-rise-isis-article-1.1955804.

[3] France Says Carried Out Air Strikes In Iraq September 25 (Sep. 25, 2014) http://www.rferl.org/content/iraq-france/26605701.html.

[4] Scott Neuman, Airstrikes Move to Syria, Target More Than Just ISIS (Sep. 23, 2014) http://www.npr.org/blogs/thetwo-way/2014/09/23/350820165/airstrikes-move-to-syria-target-more-than-just-isis; New airstrikes, new tactic to beat ISIS (Sep. 25, 2014) http://www.cbsnews.com/news/u-s-arab-allies-airstrikes-target-isis-oil-refineries/.

[5] Arwa Damon and Holly Yan, ISIS fighter says U.S. airstikes aren’t effective (Sep. 29, 2014) http://www.cnn.com/2014/09/29/world/meast/isis-fighter-and-defector-interviews/index.html?hpt=hp_t1.

[6] Stephen Castle and Steven Erlanger, Nations Offer Limited Support to Attack on ISIS (Sep. 26, 2014) http://www.nytimes.com/2014/09/27/world/europe/british-parliament-vote-isis-airstrikes.html?_r=2; Michael Pearson, Greg Botelho, and Ben Brumfield, Anti-ISIS coalition grows, but that doesn’t mean victory is near (Sep. 27, 2014) http://www.cnn.com/2014/09/26/world/meast/isis-syria-iraq/index.html.

[7] Lisa Mascaro, Congress mostly approves of airstrikes in Syria so far (Sep. 23, 2014) http://www.latimes.com/nation/politics/politicsnow/la-pn-congress-syria-airstrikes-20140923-story.html (explaining that Congress approved of support of training and equipping moderate Syrian rebels).

[8] Stewart M. Patrick, President Obama’s UN Speech: Defending World Order (Sep. 24, 2014) http://blogs.cfr.org/patrick/2014/09/24/president-obamas-un-speech-defending-world-order/.

[9] France Carried Out Airstrikes, supra note 2.

[10] Id.; France Considers Airstrikes Against ISIS in Syria After Beheading (Sep. 25, 2014)  http://www.nbcnews.com/storyline/isis-terror/france-considers-airstrikes-against-isis-syria-after-beheading-n211221.

[11] Jenny Gross, U.K. Carries Out First Airstrikes in Iraq (Sept. 30, 2014) http://online.wsj.com/articles/u-k-ministry-of-defense-raf-carried-out-its-first-airstrikes-in-iraq-1412097556

[12] Nicholas Winning and Jenny Gross, British Parliament Approves Airstrikes in Iraq Against Islamic State (Sept. 26, 2014) http://online.wsj.com/articles/david-cameron-calls-for-u-k-parliament-to-vote-for-iraq-airstrikes-on-islamic-state-1411725035