Sunday, December 11, 2016

Foreign Policy Checks/Balances - The Senate's Bipartisan Reaction

This article discusses Trump's reaction to the cyber-hacking attack, and the bipartisan Congressional opposition to that.  I put these events into context by summarizing the relative roles of the President and the Senate in carrying out US foreign policy under the Constitution.  

The Russian Cyber Attack on America is About US Interests and US Foreign Policy - NOT Partisan Domestic Politics


Last month, the US Director of National Intelligence - James Clapper - stated with high confidence that Russia hacked the Democratic National Committee (DNC), stole emails and then leaked them.  Russia cyber-attacked the United States to try to cast doubt on, and thus injure, the sacred institution of American elections.   (see Wall St Journal).


The partisan political uproar over whether the Russian hack impacted the election outcome divides the US in a way that the Russians are exploiting.  It is unlikely that the election outcome was directly impacted by Russia, and that can be investigated - but the real issue that we can't lose sight of is that we were attacked by Russia.  


When a thief breaks into your house and is caught by the police, you don't: let him rob you anyway and then turn on your own spouse for letting the robbery happen, declare that law enforcement is incompetent, and warm up to that robber because he's complemented you and done business with you in the past - you kick the criminal out of your house! 


Yet, Trump did those things - he warmed up to the robber, attacked the "spouse" (Democrats), and attacked law enforcement (the CIA).  


Trump rejected the intel of the Central Intelligence Agency, the Federal Bureau of Investigations and the National Security Agency, and tried to cast doubt, stating that maybe it was Russia, maybe it was China or it "could be some guy in his home in New Jersey."  (see Time).  He further blamed Democrats (see WSJ: Trump Blames Democratsand attacked the credibility of the entire CIA, issuing a statement that “these are the same people that said Saddam Hussein had weapons of mass destruction,” adding that the election was over and that it was time to “move on.”  (see NY Times).  


“To have the president-elect of the United States simply reject the fact-based narrative that the intelligence community puts together because it conflicts with his a priori assumptions — wow,” said Michael V. Hayden, the Director of the NSA and the CIA under President George W. Bush.  "The data matters," Hayden said. "[Trump] continues to reject the Russians did it... and claims that it was politicized intelligence." (see CNN). 


Facts are not political; facts are facts.  Should a President-elect reject the facts, including about critical national security issues, attack individuals depending on whether they agree or disagree with him, and who attack core US institutions?  


The Bipartisan Congressional Response to Trump


U.S. Senators -- John McCain (R-AZ), Chairman of the Senate Committee on Armed Services, Lindsey Graham (R-SC), Member of the Senate Committee on Armed Services, Charles E. Schumer (D-NY), Senate Democratic Leader-elect, and Jack Reed (D-RI), Ranking Member of the Senate Committee on Armed Services -- issued a press release today stating that the "recent reports of Russian interference in our election should alarm every American", that these issues "cut to the heart of a free society", and that we need to and will work in a bipartisan way to protect our democratic institutions.  


Joint Statement on Reports That Russia Interfered with the 2016 Election, December 11, 2016 (Senate Armed Services Press Release, emphasis added).


It is hard to get Democrats and Republicans to put partisan politics aside, but Trump's response to Russia's attack on American was apparently enough.  


What does this Senate response say about the broader questions of Constitutional checks and balances on Trump's ability to set foreign policy?  


Who Decides American Foreign Policy Under the Constitution?  


The President and the Congress (especially the Senate) have a shared role in determining foreign policy, which because it is not always clearly defined, has been described as an "invitation to struggle".  (see Edward Corwin Wiki).  


The Founders tended to favor a strong role for the Congress in foreign policy because they viewed it as the more democratic branch, and having just rid themselves of a king, they were skeptical of giving the President excessive power.  However, in practice and over time, Presidents have tended to take a leading role in setting foreign policy due to their inherent advantages, especially the need in a modern society to move at the speed of technology, and the need for secrecy when national security is threatened.  See The Imperial Presidency, by Arthur Schlesinger, Jr.  



The President
Under the Constitution, the President is the head of the government, the embodiment of the US, and Commander in Chief of the military (see Constitution, Article II, Section 2).  The President is uniquely positioned to establish policy and a national agenda, and to communicate that agenda to the public, which is exactly what President-Elect Trump has already begun to do with his statements about wanting to get closer with Russia.  

Once policy is established, the President has significant control over its implementation through the huge federal bureaucracies that impact foreign policy, including the State Department, the Defense Department, and the Intel agencies.  Once a President commits the country to a course of action diplomatically, it can be hard to alter.  


The President nominates and appoints cabinet members, ambassadors and other public officials, subject to the advice and consent of the Senate (see below).  


Presidents have treaty making powers, which are subject to two thirds Senate approval, but can instead use executive agreements, over which they have greater control.  They also have the power to receive foreign ambassadors and, in effect, to recognize foreign governments. 
The Congress, Especially, the Senate
Under Article II, Section 2, Clause 2 of the Constitution, the Senate has "advice and consent" rights, including with respect to approval of key cabinet positions: 

"[The President] ... shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States..."


Under a change in Senate procedural rules in 2013, approval of Presidential nominations requires a simple majority rather than a vote of 60 Senators (which is still required to approve Supreme Court Justice nominees).  (See Huffington Post).  


The upcoming review of Trump's appointments should not be a rubber stamp.  Citizens should pay attention and put pressure on Republican Senators to do what's right, act in a nonpartisan way, and ensure that the people Trump nominates are qualified.  Trump may be entitled to nominate someone who favors deregulation over the regulatory mission of a particular agency, but Trump cannot, for example, be permitted to put someone in place who has close ties with Russia and conflicted interests that are not consistent with what's best for America.  


Although Congress can be disadvantaged versus the President in setting foreign policy, Congress can take a range of actions including appropriate scrutiny and rejection of  unqualified or conflicted cabinet nominations, investigations by oversight committees, passage of resolutions, and policy statements intended to influence public debate.   


The Congress also has the "power of the purse", meaning that they have to approve the budget, but as a practical matter, once the government is funded, the President is generally able to conduct foreign policy. 


Role of Citizens and the Media


Citizens don't determine foreign policy, but we have an important role, including to hold the President, Senators, and Congressmen/women accountable, and if nothing else, citizens have the vote.  The media plays a key role by shining a light on foreign policy debate.  


If you are interested in following up with your representatives, the following Committees have foreign policy oversight responsibilities:

Why might Trump want the US to move closer to Russia?   

A detailed discussion of America's foreign policy is beyond the scope of this article. In general, it must be based on what's in the best interests of America, and the State Department has said (across Republican and Democratic administrations) that US foreign policy should include the protection of American security, and the promotion of American economic interests and democratic ideals, including freedom and human rights.  


All foreign officials, and especially the President, must be free of conflicts or even the appearance of conflicts of interest, after transparent disclosures.  


Trump has expressed his desire to move America closer to Russia.  In assessing that policy, it is fair  to objectively consider factors such as the following:


  • Russia is a totalitarian state, with a record of human rights abuses, and recent aggressions that violated international law.  To what extent do these factors weigh against moving closer to Russia?
  • How should Russia's historic opposition to America - including a 40 year cold war that we won - factor into our policy?  
  • Given Russia's huge nuclear arms stock pile, will moving closer with Russia decrease or increase nuclear arms risks?
  • Pending the results of our intelligence agency and Senate investigations, how should Russia's recent cyber attacks impact our policy toward Russia?
  • What benefits does America get from moving closer to Russia and what are the costs?
  • What is the basis for the assertion that aligning with Russia helps US interests versus ISIS?  To what extent does such an alignment negatively impact our ability to fight ISIS and/or involve potential human rights abuses?
  • What are the US's economic interests relating to Russia?  
  • What have been the impacts of the sanctions against Russia?
  • Is there a concern that a number of Trump's cabinet appointments have close ties to Russia and Putin?  What are those ties? 
  • After nonpartisan Senate review and investigation of Trump's cabinet appointments, do we have full disclosure (including tax returns) of potential conflicts of interest, and are the nominees qualified to represent American interests?
  • Note: the issue of Trump's tax returns and conflicts are not partisan issues - it is in every American's interest to have Trump follow the norms of other Presidents, which in turn will remove the potential taint of conflict from his proposed policies.  
Acceptance of the Invitation to Struggle

Trump has, and will have going forward, tremendous advantages and powers to choose his cabinet and set American foreign policy, subject to the Constitution, but other branches of government, especially the Senate, have and should play a role.  




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