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Women, Marching and Security

On Saturday, more than 2 million people marched across the United States and multiple world capitals making vocal and visual their opposition to Donald Trump’s presidency and the threat it poses to reproductive rights, LGBTQ rights, national security, freedom from sexual violence, environmental justice, racial equality, journalistic freedom, and science. It was a wide-ranging and tumultuous set of gatherings, responding to an election cycle marked by the apparent acceptability of sexual misogyny and routine sexism as a normalized part of political discourse. There is no one simple categorization of these marches and their intersectional agendas. The broader political effect of massive feminist mobilization is yet to be fully understood or appreciated (despite the political tendency to dismiss the gathering of hundreds of thousands of women as politically irrelevant).

Yet it is striking to this observer that much of what women were collectively articulating was a right to security, in ways that are familiar and understood by many women but missed by masculine discourses. As some commentators have rightly observed, women’s rights are a national security issue. Yet, women often articulate security in distinct ways. When women are asked what they want or understand security to be, essentials such as being able to secure work, support their families, protect their bodies, reproduce (or not) on their own terms, and send their children to school without discrimination or harm dominate. Security for many women means not just security from (harm, injury, sexual violence) but security to (care for one’s family, work, thrive).  At least one valuable lesson from the marches and the political action that accompanies them is that it behooves us to exchange dominant and highly masculine notions of security, infused with primarily militaristic objectives and replace them with genuinely interactive models that reframe security conversations that end the artificial and gendered divide between public and private security. Women are demanding and articulating their security needs in diffuse and distinct ways, starting with the basic right to securely inhabit a female body. Holistic and engaged national security discourses demand we listen a little more carefully.

Image: Women’s March, Washington, DC – Melissa Bender

The U.S. Constitution and the Risk of Democratic Backsliding

Is there a real possibility of the erosion of democratic institutions toward authoritarianism in the United States? What can the experience of other countries tell us about how such democratic backsliding might happen, and is the U.S. Constitution well equipped to prevent such authoritarian methods from working? As comparative constitutional scholars with an ongoing interest in how constitutional systems thrive and why they fail, we have a professional interest in the relationship between democratic backsliding and the U.S. Constitution. As citizens, we have abiding commitments to our democracy that makes the question important to ask and effectively answer.

At Ryan Goodman’s kind invitation, we present in this blog post some preliminary findings from a working paper entitled “How to Lose a Constitutional Democracy.” We focus here on the relationship between what we call in the paper “constitutional retrogression” and specific elements of the U.S. constitution. Using the constitutional experience of other countries as a guide to understanding democratic backsliding will, in our view, engender a better appreciation of the standing risk of such decay in the U.S. context.

As a starting point for comparative analysis of this question, consider the following chart, which shows the changing number of democracies, autocracies, and “hybrid” regimes (a term we explain below) over the last three decades. As the uptick in the latter two categories suggests, there is some reason to think that the famous notion of a modern  wave of democratic countries may well have peaked.

What is also striking is that there are two distinct alternatives to democracy that have emerged in meaningful numbers. There are both authoritarian regimes on the one hand, and a meaningful number of “hybrid” regimes on the other. The latter are neither pure democracy nor unfettered autocracy, but instead are complex amalgams of the two. Venezuela, Poland, and Hungary provide examples of hybrid regimes; Turkey and Russia are best thought of hybrid regimes that have tipped or are tipping into wholesale authoritarianism.

One of the conceptual contributions of the paper is a distinction between two kinds of democratic backsliding, one of which leads to authoritarianism and the other that usually (though not always) to a hybrid regime. We call these reversion and retrogression respectively. Major American constitutional scholars from Clinton Rossiter through Bruce Ackerman have focused on the former. But we think the experience of other countries suggests retrogression toward a hybrid regime that mixes democratic and authoritarian elements is more likely. What is more, the constitutional checks against retrogression turn out to be surprisingly weak.  Continue Reading »

The Early Edition: January 23, 2017

Before the start of business, Just Security provides a curated summary of up-to-the-minute developments at home and abroad. Here’s today’s news.

PRESIDENT TRUMP’S FOREIGN POLICY

The Trump administration has not sent a delegation to the Syria peace talks in Kazakhstan because of “the immediate demands of the transition,” the State Department said Saturday. Karen DeYoung reports at the Washington Post.

The Trump administration is in “the very beginning stages” of discussing moving the US embassy in Israel from Tel Aviv to Jerusalem, White House Press Secretary Sean Spicer said yesterday, Ayesha Rascoe and Matt Spetalnick reporting at Reuters.

Israeli Prime Minister Benjamin Netanyahu accepted President Trump’s invitation to visit the White House next month to attempt to forge a “common vision” that may include expanded Israeli settlement construction and a tougher policy toward Iran, Josef Federman reports at the AP.

President Trump and Netanyahu discussed ways to strengthen US-Israeli relations and “threats posed by Iran” in a phonecall Sunday, Rory Jones reports at the Wall Street Journal.

“The rules of the game have changed.” Israel announced plans to build nearly 600 new settlement homes in occupied East Jerusalem just two days after President Trump’s inauguration, Peter Beaumont reports at the Guardian.

The Trump presidency is already affecting Israeli-Palestinian politics, Ian Fisher observes at the New York Times.

Moscow expects to agree a date for the first phone call between President Putin and President Trump soon, Kremlin spokesperson Dmitry Peskov said today. [Reuters]

“Donald Trump is not our man.” Peskov and the Moscow establishment are taking a wait-and-see approach to the new US President on issues such as Ukraine, Syria and bilateral relations, Andrew Roth reports at the Washington Post.

British Prime Minister Theresa May will be the first foreign leader to meet President Trump for talks at the White House when she travels to Washington Friday, Griff White reports at the Washington Post.

May intends to discuss British-US cooperation on terrorism and NATO at the meeting with Trump on Friday, she said yesterday. Kate Allen reports at the Financial Times.

May will also defend free trade with Iran and support for the Iran nuclear deal when she meets President Trump Friday, Reuters reports.

Trump will start meeting his counterparts across the globe now that he is getting to work as President, CNN’s Joshua Berlinger discussing some of the encounters where it would be “fascinating to be a fly on the wall,” including those with NATO leaders, the UK and China.

A lawsuit alleging that President Trump is violating a constitutional ban on accepting payments from foreign governments will be filed by legal watchdog Citizens for Responsibility and Ethics in Washington, the BBC reports.

“America first!” Three reasons why Europe was alarmed by Trump’s inaugural address are discussed by Carl Bildt at the Washington Post.

Trump may find his room for maneuver in the Middle East constrained by the increased influence of Russia and Iran in the region, Liz Sly writes at the Washington Post.

The idea that Trump’s often twitter-based foreign policy declarations are all tending toward sensible bargains is comforting, but raises two problems: the deals he has been hinting at are “wildly unrealistic,” and trying to drive them could be dangerous as well as futile, writes Jackson Diehl at the Washington Post.

“Does President Trump have a foreign policy doctrine?” Asks Ishaan Tharoor at the Washington Post.

Counterterrorism cooperation with Russia is a bad idea, the kind of relationship President Trump proposes having the potential to seriously undermine the US’s counterterrorism progress and destroy its relationship with Sunni Muslims worldwide, warns Daniel Benjamin at the New York Times.

Defending imprisoned dissidents, journalists, political opponents and stigmatized minorities via international human rights architecture will be a great deal harder under President Trump, writes Natalie Nougayrède at the Guardian.

THE TRUMP CABINET

Republicans will secure the votes needed to confirm President Trump’s entire Cabinet, Senate Majority Leader Mitch McConnell predicted last night, Connor O’Brien reporting at POLITICO.

National security adviser Michael T. Flynn is assembling the most military-heavy National Security Council staff of the modern era, and observers are concerned, Josh Rogin reports at the Washington Post. Continue Reading »

Recap of Recent Posts on Just Security (Jan. 15-20)

I. Trump and Russia 

II. Working in the Trump Administration

III. Norms Watch

IV. CIA Data Collection Guidelines

V. United Kingdom Supreme Court National Security Decisions

VI. Manning Commutation and Cartwright Pardon

VII. Resort to Military Force

VIII. Law of Armed Conflict

IX. Torture

X. Civilian Casualties

Obama Admin: Only One Civilian Killed by U.S. Outside of War Zones in 2016

 

On the eve of the inauguration of a new president, the Director of National Intelligence released a report (full text) that summarizes the number of military strikes taken by the US government outside of hot battlefields during 2016, including the total number of civilians killed in those operations. For example, the US operations in the report occurred in places like Somalia and Yemen. The report is the second in a series that are mandated by a July 1, 2016 Executive Order. One thing to always keep in mind when digesting these reports: they cover only strikes “outside of areas of active hostilities”–in other words, they exclude places like Afghanistan, Iraq, and Syria. One has to turn to regular Department of Defense updates for information about civilian casualties in those war zones.

There are three significant items in the report: Continue Reading »

Norms Watch: Tracking the Erosion of Democratic Traditions (Jan. 13-20)

Last week, we launched a regular series tracking President-elect Donald Trump’s adherence, or lack thereof, to democratic norms. These norms are not necessarily legally required, but help make up the fabric that holds together broader democratic values, such as accountability and the rule of law.

Especially in light of events this past week, we have broadened our analysis. We now include responsive norm violations in which American institutions — like the news media, the military or Congress — deviate from traditional norms in reaction to the current political climate. We do not attempt to place a value judgment on those deviations. Some might be viewed as necessary correctives, or bad precedents. We leave that for readers to decide.

The destruction of democratic norms was discussed during Barack Obama’s last interview as president, which he did with Pod Save America. The podcast’s host, former Obama speechwriter Jon Favreau, remarked that it was fair to say Republicans had eroded certain democratic norms over the last eight years, including blocking Judge Merrick Garland’s confirmation process and the debt ceiling crisis. Favreau asked Obama: “Do you think that progressives should follow suit to win more? Or do you think that it’s more important to be the institutionalists?”

Obama responded: “Look, I think that it doesn’t help the progressive cause to undermine norms that help support a progressive society. So, in that sense, maybe we’re a little bit disadvantaged relative to [Senate Majority Leader] Mitch McConnell. But I don’t know how we’re served with more judicial vacancies. I don’t know how well served we are with us trying to suppress voters the way they try to suppress voters in places like North Carolina. That doesn’t sound like a good solution. But in terms of cooperation, in terms of how does a Democratic Congress work with President Trump, my suggestion has been: You stand your ground, and where there are areas of agreement, you just make sure you’re negotiating tough and negotiating well.”

Moving ahead, Just Security intends to capture the more complex and interactive ecosystem of norms violations happening today. Our primary aim is to provide a digestible breakdown of when and how Trump administration policy and actions diverge from custom, practice, and precedent in politics and law, but we’ll also be on the lookout for when norms are violated as a response to Trump. We’re tracking the news, and keeping our Twitter feeds refreshed. Think we’re missing something? Let us know on Twitter Continue Reading »

The Early Edition: January 20, 2017

Before the start of business, Just Security provides a curated summary of up-to-the-minute developments at home and abroad. Here’s today’s news.

PRESIDENT TRUMP’S FOREIGN POLICY

A slew of senior positions throughout the federal government including the State and Defense departments will remain empty when Donald Trump takes the oath of office today, observe Matthew Nussbaum and Eli Stokols at POLITICO.

Trump is keeping around 50 senior Obama administration officials, including key national security figures, to “ensure the continuity of government,” spokesperson Sean Spicer said yesterday. The Hill’s Jordan Fabian and Ben Kamisar report.

The Trump team has, however, reportedly demanded that many of Obama’s national security choices leave their posts immediately, the Pentagon, the office of the Director of National Intelligence and the Department of Homeland Security all having interim successors to run things until Trump’s permanent appointments are confirmed, Mattathias Schwartz reports at The Intercept.

Senators will take up at least two of Trump’s national security nominees today, the Hill’s Jordain Carney reports.

Donald Trump takes office today having promised to enact policies that would threaten rights at home and abroad if implemented, Human Rights Watch said today.

“You know, I’m not a person who breaks promises.” Trump gave what Ian Fisher and Isabel Kershner at the New York Times suggest was his strongest statement on the issue of moving the US embassy in Israel to Jerusalem yesterday to a conservative Israeli news outlet.

An announcement on moving the US Israeli embassy from Tel Aviv to Jerusalem is “coming soon,” press secretary Sean Spicer said yesterday. Amir Tibon reports at Haaretz.

If Trump’s son-in-law Jared Kushner can’t bring peace to the Middle East, “no-one can.” Trump said he is counting on Kushner to bring peace to the region last night, CNN reports.

EU leaders called for an official complaint over Trump’s fatalistic view of the bloc at the European Parliament’s plenary session Wednesday, DW reports.

Trump is tweeting the US into war with North Korea, but can he cut a deal to prevent it? Jeffrey Lewis writes at Foreign Policy.

Turkey anticipates significant improvements in its relations with the US under Trump, Turkish Foreign Minister Mevlut Cavusoglu said yesterday, Karen DeYoung reporting at the Washington Post.

Turkish Prime Minister Binali Yildirim made three demands of the incoming Trump administration Wednesday night: the extradition of cleric Fethullah Gulen, ceasing support for Syrian Kurdish troops, and taking steps to counter anti-American feelings in Turkey, Hande Firat reports at the Hürriyet Daily News. Continue Reading »

GTMO at the End of the Obama Administration: 31 uncharged detainees remain

With today’s transfer of four more detainees to the UAE and Saudi Arabia, President Obama will leave office tomorrow with 31 uncharged individuals remaining detained at the Guantánamo Bay Naval Base, potentially for the duration of U.S. hostilities with al Qaeda.  (Ten others have been charged in the military commissions system, of whom seven are awaiting trial.)  Below is the President’s final letter to congressional leadership regarding GTMO.  He is right that Congress’s refusal to permit him to close the facility “make[s] no sense.”

Of the 31 remaining uncharged detainees, five have been cleared for transfer either by the 2009 Task Force or by the PRB, based on a unanimous assessment of all agencies that their further detention is no longer necessary to protect against a significant threat to the security of the United States:  Ridah bin Aleh al Yazidi (from Tunisia, ISN #38); Abdul Latif Nassir (from Morocco, ISN #244); Mjuayn al-Din Jamal al-Din Abd al Fadhil Abd al Sattar (unknown home nation, ISN #309); Sufyian Barhoumi (from Algeria, ISN #694); and Tawfiq al Bihani (from Yemen, ISN #893).

One of the other 26 detainees has had a follow-up full PRB review, with no announced resolution yet:  Uthman Abd al-Rahim Muhammad Uthman (from Yemen; ISN #27).  And two others, also from Yemen, are slated for follow-up full PRB reviews:  Omar Muhammad Ali al-Rammah (ISN #1017) (review scheduled for Feb. 9); and Sharqawi Abdu Ali Al Hajj (ISN #1457) (review not yet scheduled).

As I’ve previously explained, this is about as close as President Obama could possibly have gotten to actually closing the detention facility at GTMO, in light of statutory restrictions that Congress has needlessly and unwisely imposed.  (See my three-part post — Part OnePart Two, and Part Three.)  As I discuss in the first of those posts, however, the remaining small population at GTMO is the only blot on what is otherwise a remarkable transformation:  the President’s policies and practices have ensured not only that long-term military detention is exercised in accord with domestic and international law, but that such detention has, in fact, come to be the rare exception rather than the rule—indeed, virtually a dead letter in U.S. practice.  It is now up to the new President whether and to what extent that fundamental transformation endures.

The President sent this letter today to the Speaker of the House and President Pro Tempore of the Senate, which was accompanied by a final memorandum on “Obama Administration Efforts to Close the Guantanamo Bay Detention Facility”:

 

TO THE SPEAKER OF THE HOUSE OF REPRESENTATIVES
AND THE PRESIDENT PRO TEMPORE OF THE SENATE

January 19, 2017

Dear Mr. Speaker: (Mr. President:)

For 15 years, the United States has detained hundreds of people at the detention facility at Guantanamo Bay, a facility that never should have been opened in the first place. Rather than keeping us safer, the detention facility at Guantanamo undermines American national security. Terrorists use it for propaganda, its operations drain our military resources during a time of budget cuts, and it harms our partnerships with allies and countries whose cooperation we need against today’s evolving terrorist threat. By any measure, the costs of keeping it open far exceed the complications involved in closing it.

As President, I have tried to close Guantanamo. When I inherited this challenge, it was widely recognized that the facility — which many around the world continue to condemn — needed to close. Unfortunately, what had previously been bipartisan support for closure suddenly became a partisan issue. Despite those politics, we have made progress. This Administration established a comprehensive, interagency review process to assess whether the transfer of a detainee is in the national security interest of the United States. Under this rigorous process, we have transferred 196 detainees from Guantanamo with arrangements designed to keep them from engaging in acts that pose a threat to the United States and our allies. Of the nearly 800 detainees at one time held at the facility, today only 41 remain.

The Department of Defense has also provided the Congress with a comprehensive plan to finally close Guantanamo once and for all. In addition to calling for us to continue to identify and effectuate secure transfer opportunities, it calls for the continued periodic review of the threat posed by individuals still detained, the use of all legal tools to deal with the remaining detainees still held under law of war detention, and the identification of a secure location in the United States to hold remaining detainees who are subject to military commissions or who we have determined must continue to be detained because they pose a continuing significant threat to the United States. I have included an update to that plan here.

The restrictions imposed by the Congress that prevent us from imprisoning detainees — even to prosecute and secure a life sentence — in the United States make no sense. No person has ever escaped one of our super-max or military prisons here, ever. There is simply no justification beyond politics for the Congress’ insistence on keeping the facility open. Members of Congress who obstruct efforts to close the facility, given the stakes involved for our security, have abdicated their responsibility to the American people. They have placed politics above the ongoing costs to taxpayers, our relationships with our allies, and the threat posed to U.S. national security by leaving open a facility that governments around the world condemn and which hinders rather than helps our fight against terrorism.

If this were easy, we would have closed Guantanamo years ago. But history will cast a harsh judgment on this aspect of our fight against terrorism and those of us who fail to bring it to a responsible end. Once again, I encourage the Congress to close the facility and permit more of our brave men and women in uniform serving at Guantanamo Bay to return to meeting the challenges of the 21st century around the globe. There remains bipartisan support for closing Guantanamo and we can do so in a responsible and secure way that also saves the American taxpayer money. Guantanamo is contrary to our values and undermines our standing in the world, and it is long past time to end this chapter in our history.

Sincerely,

BARACK OBAMA

 

Image: John Moore/Getty

Five Quick Observations: The CIA’s New Guidelines for Handling Americans’ Data

Yesterday, the Central Intelligence Agency released newly updated guidelines regarding the treatment of American data collected pursuant to Executive Order 12333.  John Reed has already highlighted some key aspects of the guidelines here.  I write separately with five  brief observations.

First, the fact that these are fully unclassified and made public is a big deal.  It’s a stark contrast to the heavily redacted release of the 1982 documents, which were kept secret for well over two decades, and has entire pages blacked out.  This is a welcome change—one that will help foster and encourage informed debate.  It is also good policy, helping to protect against the spread of misinformation and speculation that fosters distrust and ultimately works to the disadvantage of our intelligence community and their mission.

 Second, they reflect a long-overdue reflection of the fact that whereas the information available to the CIA of the 1980s was limited to a finite number of hard documents, now even a single storage device can contain the equivalent of millions of files.  This has two key implications:  First, it takes longer to review.  In recognition of this fact, the guidelines specifically address the presumably large quantity of so-called “under-evaluated information” and include specific storage, access, and destruction requirements.  And second, the sheer scope of collection (coupled with the way in which electronic communications transit the globe) means that it is much more likely that the CIA will, in the course of its overseas operations,  gather incidentally collected information on U.S. persons (defined to include U.S. citizens, legal permanent residents, unincorporated associations substantially composed of U.S. citizens or legal permanent residents, and corporations incorporated in the United States, so long as they are not directed or controlled by a foreign government).  The guidelines incorporate a number of provisions that both acknowledge and seek to address that fact.  Continue Reading »