Katherine Yon Ebright
@EbrightYon
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Counsel @BrennanCenter , formerly @PILPG , views my own | A big law nerd, not a biglaw nerd | Columbia Law '18 | Harvard College '15 |
Joined February 2019
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Some thoughts on why Biden not only shouldn't, but also legally can't, use force in Taiwan without express congressional authorization.
Can POTUS use force in defense of
#Taiwan
without congressional authorization?
@EbrightYon
argues the "national-interest theory" of presidential war-making would not justify unilateral military action to protect Taiwan:
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There will undoubtedly be racist and islamophobic attacks against Karim Khan and Amal Clooney. So it bears mention that Theodor Meron, another expert who moved these requests forward (and a giant in the field of ICL), is an American-Israeli Holocaust survivor.
ICC Panel of Experts write in the FT:
"The Panel unanimously agrees" with the Prosecutor's decision to seek arrest warrants for Hamas and Israeli leaders.
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For the past year, I've been researching Department of Defense-led security cooperation--and how it can lead to unauthorized hostilities. Today, my
@BrennanCenter
report on the subject goes live. /1
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Important to note that Olivia Warren's testimony makes crystal clear that Reinhardt's male clerks were aware of the harassment their female colleagues and successors faced, yet chose to remain silent. Didn't stand up for their colleagues and certainly didn't blow the whistle.
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The dissent -- thankfully a dissent -- ignores an extensive history, dating back to the late 1700s, showing that an "invasion" requires an armed attack or act of war. Neither migration nor drug trafficking counts. /1
Five judges on the 5th Circuit are embracing Texas’ claim that it faces an “invasion” of unauthorized migrants and can therefore take control of border security in defiance of the federal government …
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The more involved you are in war powers research and advocacy, the clearer it becomes that military oversight is hampered by the Department of Defense's *pervasive* noncompliance with laws requiring reports on military activity.
I wrote about it here:
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"The public should not have to try to reverse-engineer the scope of or basis for where the country is at war from scraps of information about § 127e proxy forces."
Yet here I am, doing just that, in this new piece for
@lawfareblog
. /1
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In the vast majority of states (though not California), our profession *requires* lawyers--including male clerks who are barred--to report the misconduct of other lawyers. The conversation here needs to address the role and responsibilities of bystanders.
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New, crucial reporting on 10 U.S.C. 127e, a "security cooperation" authority that DoD has used to conduct undisclosed hostilities across Africa and Asia--from Cameroon to Lebanon to a yet-unknown country in the Asia-Pacific region.
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Query whether reporting misconduct like this should fall solely on the shoulders of the female clerks who are being harassed. Why is addressing this problem the responsibility of the most vulnerable, underrepresented, and societally-disbelieved party?
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The lack of staffers with TS/SCI clearance frustrates the House of Representatives' ability to engage in vital oversight and informed decision-making.
It's been a problem for FISA section 702 reform -- and also for Congress's work on matters of war and peace.
Lawmakers "Left in the Dark Over FISA Reform," reports
@ByronTau
&
@JohnSewardDC
for
@NOTUSreports
, pointing to the exec branch freezing out congressional staff + antiquated House regs that prevent personal staff from obtaining necessary clearances.
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@mattyglesias
As J&J actually conducted a parallel phase-three trial with two doses! The data exist, and afaik are positive! It's just expensive, labor-intensive, and comes with some PR-unknowables to apply for two-dose authorization.
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@whstancil
Lots of concerning policy proposals coming out of groups like Heritage and the Center for Immigration Studies, which I, at least, would argue are materially different from teenagers on TikTok.
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Could Boston City Hall be required to fly an ISIS flag?
The Supreme Court rules that the city of Boston violated the First Amendment when it refused to fly an outside group's Christian flag in front of city hall (despite flying various other groups' flags). The decision is unanimous, and it's the only opinion of the day.
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@nancyleong
Even more tragic that the most prominent cat in the White House was subjected to a smear campaign.
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It is not clear whether Iran or Hezbollah will escalate the conflict in Gaza to a regional war.
What *is* clear is that President Biden does not have the authority to commit U.S. forces to that conflict unless Congress authorizes U.S. military involvement. /1
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Pentagon docs obtained by
@charlie_savage
&
@EricSchmittNYT
confirm that the military doesn't require human rights vetting for its 127e and 1202 surrogate forces.
This is an important story; big thanks to
@nytimes
for bringing these docs to the public./1
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This resolution is a powerful rejection of calls to invade Mexico without the consent of the Mexican government and without congressional authorization.
The
@BrennanCenter
has endorsed the resolution's vital defense of the rule of law and constitutional separation of powers. /1
This morning, I led dozens of House Democrats to introduce a resolution condemning recent calls for military strikes against Mexico.
War would be devastating for Mexico and the U.S. — and reckless calls for an invasion are taking us down a dangerous path.
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It's hard to convey how dangerous and irresponsible it would be for
@HouseDemocrats
and
@SenateDems
to allow this president... and the next... nearly unfettered authority to build foreign proxies to counter nuclear states.
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The Department of Defense regularly fails to comply with its congressional and public reporting requirements. Congress should use this year's National Defense Authorization Act as an opportunity to improve military transparency. /1
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@boredgamedad
@GrahamStarr
Learned that "tiger parenting" was a thing and chose to interpret it literally
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@LynzyBilling
's new and harrowing reporting on the CIA's proxy forces in Afghanistan -- the so-called "Zero Units" -- underscores how reckless, unaccountable, and frankly counterproductive "indirect action" can be. /4
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@NancyAFrench
@washingtonpost
Niche comment: read the Satanic Verses this year and thought, accordingly, that this was going to end with you finding out that friends and family were "prank" calling your home to sabotage your marriage.
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On holiday in Mexico, a country where U.S. forces have no business conducting hostilities and we shouldn't have an AUMF
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"NSA agents..have abused the [Section 702] authority to search for the communications of online dating prospects."
Section 702 has been used to systematically violate Americans' civil rights--a concern of the highest order. But I'm just floored that creeps use 702 for "LOVEINT."
🚨20+ organizations, including
@ACLU
,
@BrennanCenter
, and
@savingprivacy
have sent
@SenSchumer
a letter urging him to keep FISA Section 702 out of the continuing resolution.
RT if you agree the Senate shouldn't sneak warrantless surveillance into the CR!
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Twenty years ago, U.S. forces led the ground invasion of Iraq. Today, there are still ~2,500 troops in Iraq, more than a decade after the formal end of the Iraq War.
I wrote for
@thehill
about the legal reforms we need to end U.S. hostilities in Iraq. /1
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I've summarized concepts from the report in this companion piece for
@just_security
. I hope you give it a read, especially if you don't have time to dig into the report. These are important concepts to understand, that should be debated publicly. /10
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Nancy Pelosi's Taiwan travel has generated concern about war with China. As I argue in
@DefenseOne
, the House's attempted codification of the 1202 authority for creating and running proxy forces against Russia, China, and Iran deserves as much attention./1
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@cd_hooks
A while back, there was a NYTimes article about Chapo devotees, and one of the guys profiled was an ERISA lawyer at a big firm. His day job was literally making sure companies don't have to pay out benefits to their employees and their next of kin. 🥴
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@kenklippenstein
I would simply not lean into the worse impulses of my adversaries, but what do I know? I'm a millennial and thus five decades too young to conceivably matter.
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Worth reflecting on how much joy and excitement Flaco has given New Yorkers (and folks elsewhere!) since his release from captivity
Amazing photo of Flaco taken this afternoon on the Lower East Side. Talk about an urban owl--look at all the lights behind him! Stay safe, Flaco!❤️🦉❤️
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@jdcmedlock
The Bernie Bro narrative arose out of clearly gendered circumstances--denigration of women who supported HRC based on the gender of the supporters and HRC herself. The gender dynamics of the YIMBY movement, if any actually exist, are way less explicit and evident.
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As
@nickturse
and
@alicesperi
report in their piece on 127e, Congress doesn't understand when, how, or where DoD is building and using 127e proxy forces. My conversations with congressional staffers suggest that the same is true for 1202.
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This piece offers new details on the Danab Brigade, a part of the Somali military that U.S. forces recruited, trained, put on payroll, and now fight on behalf of. The piece is strikingly uncritical of why & on what legal basis U.S. forces have done this./1
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@mattyglesias
I was told the only way to survive nuclear winter was to board the train circumnavigating the earth...?
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Very excited that the NYTimes is investigating the 333, 127e, and 1202 authorities, the focus of the Brennan Center's report on security cooperation-enabled hostilities.
New NYT FOIA lawsuit seeks
- Biden's strategy for combatting int'l terrorism
- Biden's "PPM" directive for CT drone strikes & commando raids away from hot battlefields
- Special Ops policy guidance & reports to Congress re §127e, 333, & 1202 partner forces
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Even in the (unlikely) event that this leads to an invocation of Article 5 of the North Atlantic Treaty, the White House will still have to seek congressional approval before it can use military force to defend our NATO allies. /1
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@ryxcommar
Spotify puts her music on the "song radio" for basically any Taylor Swift track -- and has for months.
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Thanks to
@AmPrestigePod
for having me on to talk about the history of constitutional war powers and how the Department of Defense's newer work by, with, and through foreign partners can lead to unauthorized hostilities.
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@jasonintrator
@nytimes
Jenny Boylan writes for the Times on a semi-regular basis, most recently this September. Simply Googling (or having read and remembered past articles and op-eds...) turns up a broad array of writings by trans/non-binary authors, e.g.,
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The report covers three authorities that allow DoD to train, equip, and even create and command foreign militaries and paramilitaries. It explains how the authorities function... and how congressional oversight fails, leading to an array of secret wars across Africa and Asia. /2
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We need to use lethal force in Somalia without clear congressional authorization because al-Shabaab has the "will and capability to attack partner and U.S. forces"........ who are deployed in and around Somalia to attack al-Shabaab.
Just some nice circular logic.
More "collective self-defense" by
@USAfricaCommand
against al Shabaab in Somalia--the most active theater of the still ongoing war on terror.
This statement doesn't mention any al Shabaab threat to the U.S. homeland, but rather "U.S. forces" and unspecified "security interests."
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@phantomravioli
@IsaacWberger
@GrandSt_Parking
@WMSBG
No, I'm pretty sure what Isaac is saying is he doesn't care if cyclists are killed by reckless drivers because he doesn't think cyclists should be on the road at all.
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Apparently the False Claims Act was enacted in response to defense contractor fraud during the Civil War. 👀
Army negotiators caught Raytheon, a major defense contractor, making “unacceptable profits” by dramatically exaggerating the cost and hours it took to build radar and ground equipment.
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@AsadFromNYC
It's not even left v. center. Dean Phillips ran a primary campaign, but the DNC wouldn't organize a debate. Huge mistake. Historic mistake. All our futures hanging in the balance because of it.
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Especially not here. Texas trotted out the "invasion" argument in July 2022. My colleague and I even wrote about it at the time, explaining why the argument was inconsistent with history+caselaw and can+should be rejected by the federal government. /4
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@steve_vladeck
To the extent that SCOTUS ethics laws are under active consideration in Congress... should Alito really be issuing public commentary on these laws' constitutionality?
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Searched "best coming of age stories" and Google recommended the Gettysburg Address by Abraham Lincoln.
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@ZeeshanAleem
She had no familiarity with that situation but aggressively denied that the Rohingya were facing genocide because (1) she'd once gone on a nice vacation to Myanmar and (2) whatever was happening to the Rohingya "wasn't as bad as the Holocaust."
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This comes at a time when Congress is planning to codify and expand the "1202 authority," a proxy force authority that runs parallel to 127e... except it's used for conducting irregular warfare against nuclear powers like Russia, China, and Iran.
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This past July, my
@BrennanCenter
colleague
@josephanunn
and I explained not only why this invocation would be unconstitutional but also what the Biden administration can do to push back against it.
I invoked the Invasion Clauses of the U.S. & Texas Constitutions to fully authorize Texas to take unprecedented measures to defend our state against an invasion.
I'm using that constitutional authority, & other authorization & Executive Orders to keep our state & country safe:
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Appreciate
@theintercept
's coverage of the Secret War report. The piece highlights the report's takeaways and has extremely powerful quotes from
@RepSaraJacobs
on the need for Congress to reclaim its constitutional war powers. /1
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These authorities explain the 2017 Tongo Tongo incident, where U.S. forces were took casualties alongside their foreign partners in Niger. The U.S. forces were out conducting a kill-or-capture mission. Lawmakers didn't even know they were in Niger. /3
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Big thanks to
@ThaddeusRussell
for having me on his podcast to discuss the Brennan Center's recent report on unauthorized and undisclosed security cooperation-enabled hostilities!
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A War Powers Resolution 4(a)(1) hostilities report is now in, consistent with Biden's past practice of reporting when U.S. forces undertake strikes against Iran-backed militias. Some questions worth asking: 🧵
NEW — Biden sends war powers notification to Congress re: his strikes on Iran-linked proxies & IRGC command/munitions centers in eastern Syria.
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@AnniesBrookland
The only way I've ever gone to or passed by Annie's Hardware is by bike, to or from the Brookland Farmers' Market. Based on your opposition to the bike lane, I think I'll go out of my way to bike to the Home Depot in the future.
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Glad to see a bipartisan team of Representatives and Senators reintroduce repeal of the 2002 AUMF, the authorization for the Iraq War.
Repealing the 2002 AUMF is the only way to ensure it's not abused--as it was by the Trump admin, to "justify" an attack on an Iranian general./1
Today,
@SenToddYoung
,
@RepSpanberger
,
@RepBarbaraLee
,
@RepChipRoy
,
@TomColeOK04
, and I are introducing legislation to repeal the 1991 and 2002 Gulf and Iraq war authorizations.
It’s time to end endless wars.
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The authorities also explain our redeployment to Somalia. The admin says we're "not directly involved in conflict"--just training partners. But our recent airstrikes in Somalia, in "collective self-defense" of partners, show that that's not true. /4
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@maxwellcyoung
@theeashleyray
On the one hand, great. On the other, you're his comms director, so I would appreciate corroboration. 👀
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A bipartisan team of legislators in the House, led by Reps. McGovern and Meijer, just introduced the National Security Reforms and Accountability Act—legislation that overhauls the War Powers Resolution of 1973. Here's some thoughts: /1
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@ZeeshanAleem
Interviewed for a law job right after wrapping up an internship with UNHCR in Malaysia. The interviewer - a biglaw partner - asked what the caseload was like in Malaysia, and I told her it was primarily the Rohingya facing genocide in Myanmar. /1
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Ron DeSantis's new border plan proposes constitutionally and statutorily dubious uses of the military at home and abroad.
@josephanunn
and I explain in a new piece for
@just_security
. /1
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The National Defense Strategy makes clear that DoD looks at security cooperation as the future of its work. Congress and the public need to be talking about it today, to make sure that work by, with, and through partners doesn't turn into military entrenchment or escalation. /9
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The broad authorities that the report covers--10 U.S.C. 333, 10 U.S.C. 127e, and 1202 of the 2018 NDAA--should be repealed. Congress can enact narrower authorities that enable it to understand where U.S. forces are, who they're supporting, and whether they'll end up in combat. /7
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New, must-read piece from
@wesleysmorgan
about DoD's effort to restart 1202 surrogate force programs in Ukraine.
As Wes says, the
@BrennanCenter
has criticized the programs as "blurring the line" between where we're at war and where our partners are./1
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Security cooperation is in dire need of reform, to prevent our work "by, with, and through" partners from involving or leading to unauthorized... and potentially unconstitutional... hostilities. The report proposes specific reforms that I hope Congress will consider. /6
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It also, somewhat laughably, stresses the urgency of Texas's "invasion" argument. It assesses that the Constitution must allow Texas to ID an invasion, and exercise war powers, because "there's no guarantee that Congress will even be in session at the time of an invasion." /2
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I'll have a piece out soon discussing the meaning of "invasion" (and more), in the context of the Alien Enemies Act of 1798. The piece below+others by
@IlyaSomin
also show why the "invasion" argument is a farce that should be struck down by the courts./fin
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Although it's received less media attention, U.S. combat in the Philippines stems from security cooperation--seemingly benign "train and equip" programs. The war on terror extends into Southeast Asia, though Congress and the public scarcely know it. /5
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A bear market is a place where you buy and sell bears
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Sure, states can ID an invasion when, per the Constitution, "imminent Danger [] will not admit of delay" and Congress hasn't yet convened. But that's no argument for why Texas's ID of an invasion should trump the federal government's reasoned judgment that no invasion exists. /3
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This apparently qualifies as "directly engaged on the ground" when Iran assists Russia in Ukraine.
But when U.S. forces advise, assist, & even accompany partners across Africa, Congress & the public are told, "We're not at war in Africa. Our partners are at war in Africa."
"The information we have is that the Iranians have put trainers and tech support in Crimea, but it's the Russians who are doing the piloting. That's our assessment at this time."
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The
#NSRAA
would bring the 1973 War Powers Resolution into the modern era of war-fighting and close the loopholes that executive branch lawyers have crafted to enable the use of military force without clear congressional authorization. /1
1/ Today,
@RepMcGovern
and
@RepNancyMace
introduced the National Security Reforms and Accountability Act. This bipartisan bill would restore the balance between Congress and the President in decisions on war, arms transfers & emergency declarations.
#NSRAA
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There's one thing, though, that the dissent gets right. The courts should decide the invasion question on the merits, instead of punting via the political question doctrine. The procedural posture of the case -- the argument is presented as a defense -- demands it. /5
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Having reviewed the docs, I think there's a second, equally important story they tell about 127e and 1202.
As
@wesleysmorgan
&
@nickturse
have reported previously, our counterterrorism surrogates under 127e have been used to conduct kinetic operations. /2
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I work on constitutional war powers. You'd assume that that's limited to military adventurism abroad. But apparently not.
@josephanunn
and I respond to Gov. Abbott's attempt to use war powers to take the reins on immigration enforcement at the border:
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Twitter can't die because I'm really not sure where else I'm supposed to find a news aggregator on the repatriation of cultural property
Pope Francis has decided to return to Greece three 2,500-year-old pieces of the Parthenon that have been in the papal collections of the Vatican Museums for more than a century.
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But in the absence of wholesale repeal, these authorities need real guardrails and substantially improved oversight. The congressional foreign affairs committees aren't even told when or where DoD runs 127e programs--despite these programs often involving hostilities. /8
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Taking some time this AM to amplify my
@BrennanCenter
colleagues' research on & reform proposals for emergency authorities -- authorities that could be abused by a vindictive president.
First & perhaps most critical: the Insurrection Act. /1
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There was an exchange at today's AUMF hearing that was important but easy to miss:
@JoaquinCastrotx
asked DoD Gen. Counsel what Congress can do if it wants to prevent overbroad interpretations of Art. II that a future administration may cynically use to intervene in Mexico. /1
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@LeahLitman
Just make Joshua Matz a federal judge before our window for appointing judges during this presidency closes
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As our ongoing conflict with Iran-backed militias in Syria underscores, closing out our two decades of conflict in Iraq and its neighbors will require reining in the president's claimed -- and disputed -- authority under Art. II of the Constitution.
Nor is there any doubt that Congress must take a stand against the executive’s ever-expanding view of its Article II authorities, as
@EbrightYon
writes:
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@AlecStapp
This looks like Asians no longer wanting to emigrate to the United States during COVID and an uptick in anti-Asian racism. Note the substantial increase in desirability for Australia, Japan, Singapore, and New Zealand--all of which handled COVID well in the Asia-Pacific region.
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@anthonyocampo
One of the incredible things about
@cpamzhang
's (Man Booker longlisted!) How Much of These Hills is Gold is its use of untranslated pinyin--which is relevant to the plot and has a particularly high pay-off for second-gen folks who know some but not a ton of Chinese.
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Yesterday,
@just_security
published my piece on how the Department of Defense's 1202 authority for irregular warfare surrogate forces can lead to unauthorized combat.
It's one of several recent pieces on 1202, & it's worth taking a look at the others.../1
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The 2001 AUMF, which authorizes force against those responsible for 9/11, does not cover Iran. Nor does it cover Hezbollah or Hamas. /2
(Thanks
@JM_Szuba
, for getting the admin on the record on this, as recently as last week!)
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Hard to overstate how unhinged it is to threaten campus protesters with the National Guard after the Kent State shooting and UNM bayoneting.
Confirmed with Gaza Solidarity Encampment spox that Columbia is threatening use of NYPD and National Guard to sweep the camp at midnight.
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The thing that stood out most to me from Jonathan Safran Foer's Eating Animals was how physically gross animal agriculture is. Quite aside from the arguments around animal suffering and environmental harm, it's just nasty and disease-ridden.
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@EricJones2014
@DCUrbanist
Upzoning neighborhoods would increase the value of those homes, which families could keep or sell for a windfall (allowing them to buy new or different properties, if they'd like). No one is proposing using eminent domain to actually force people out.
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As I told Jonathan, the Zawahiri strike "clos[es] the chapter on that authority’s relevance by its own terms."
If the Biden administration disagrees -- and it looks like it does, promising counterterrorism ops "in Afghanistan and beyond" -- Congress must repeal the 2001 AUMF.
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@IsaacWberger
@phantomravioli
@GrandSt_Parking
@WMSBG
You realize that if cyclists were in the bike lane, and there were no concrete barrier, the reckless drivers that lodged their trucks on the barrier would have instead run over and killed cyclists?
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Another excellent piece by
@mideastXmidwest
highlighting the actual text of the 2001 AUMF. The AUMF doesn't say DoD can pursue al-Qaeda's affiliates whoever they may be. It's explicitly limited to those who "planned, authorized, committed, or aided" 9/11.
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@ryxcommar
Non-zero chance that the labels use whatever leverage they have with Spotify to get the service to associate artists with TS.
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Thanks
@mideastXmidwest
for drawing much-needed attention to Biden's redeployment of U.S. forces to Somalia. DoD says the military will be there in a "train, advise, and assist" role, but that language is misleading. /1
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