Congressional Update – Week Ending November 3, 2017

I. Congress

1) Legislation

Resolution Calling on Iran to Release Detained Americans. On October 31, the Senate passed S. Res. 245, calling on the government of Iran to release the US citizens and legal permanent residents it has imprisoned. Iran has detained, and in some cases tried and convicted, several US citizens and permanent residents; this resolution urges Donald Trump to make securing their release a top priority. Though the resolution has no legal bearing, it is one way for members of Congress to express their frustration with the regime in Tehran.

Expressing the Sense of the House of Representatives Regarding Yemen. On November 1, Representative Ro Khanna (D-California) introduced H. Res. 599, clarifying House members’ position toward the United States’ role in the ongoing conflict in Yemen. Though the text of the resolution has yet to be published, Khanna has been an outspoken critic of the US role in arming and supporting the Saudi-Emirati-led campaign against rebels in Yemen, which has led to countless civilian deaths and a devastating humanitarian crisis. Members in both chambers—Democrat and Republican, alike—have spoken out against US involvement in the Yemen conflict, so this resolution could garner some significant support. However, it is uncertain if enough members will vote to adopt the resolution because the Trump Administration has thus far been willing to continue arming the Saudi-led coalition.

Iran Nuclear Agreement Review Act. Senators Bob Corker (R-Tennessee) and Tom Cotton (R-Arkansas) released a fact sheet this week, indicating the two are nearing a deal on a possible amendment for the Iran Nuclear Agreement Review Act (INARA) in the wake of the president’s refusal to certify that the Joint Comprehensive Plan of Action (JCPOA) is within US national security interests. The main premise of the senators’ potential amendment to INARA is the addition of a provision that allows for the automatic “snap back”—or reimposition—of sanctions that were suspended as part of the JCPOA. However, the adoption of such an amendment will be tricky, at best. Under INARA, Congress can vote to reimpose nuclear-related sanctions with a simple majority (though there seems to be little appetite for such a move), now that Trump refused to certify the agreement. Amending the legislation, however, is not included in the fast-track provision; therefore, Corker and Cotton would have to whip up the support of at least 58 other senators—some of whom must be from the Democratic wing that has roundly opposed undermining the deal—to defeat a potential filibuster.

Interestingly, as members of Congress discuss the next step forward with the Iran nuclear deal, a group of well-known experts in the fields of physics and nuclear science penned a letter to the chairmen and ranking members of the House and Senate foreign affairs committees urging them to refrain from removing the United States from the deal. While the group offered some suggestions to strengthen the JCPOA, they overwhelmingly believe that the deal, as is, delays the Iranians’ ability to produce nuclear weapons.

2) Hearings

The Authorizations for the Use of Military Force: Administration Perspective. On October 30, the Senate Foreign Relations Committee (SFRC) met to hear testimony from Secretary of State Rex Tillerson and Secretary of Defense James Mattis about the Trump Administration’s positions on authorizations for the use of military force (AUMF). As expected, there was a clear split between the administration and members of the committee regarding the necessity for a new AUMF. Tillerson and Mattis both stated that a new AUMF is unnecessary and that the president has all the authority he needs to execute the use of force against current threats and to pursue novel ones. The senators were more skeptical, however, arguing that operations conducted in places like Somalia, Niger, Yemen, and elsewhere are not authorized under the 2001 or 2002 AUMFs that authorized the use of force in Afghanistan and Iraq, respectively.

Ultimately, the two sides will likely remain divided on the subject of war powers, with Congress looking to restrain the president’s ability to use force around the globe. SFRC Chairman Corker was once reluctant to take up the issue, but he indicated this week that he and ranking member Ben Cardin (D-Maryland) will move to hold a markup of the AUMF proposal crafted by Senators Jeff Flake (R-Arizona) and Tim Kaine (D-Virginia).

II. Executive Branch

1) White House

Trump Extends National Emergency Declaration on Sudan. This week, President Trump took steps to renew a 20-year old executive order that blocks the Sudanese government’s property in the United States and prohibits US entities from completing transactions with Khartoum. By extending the order, Trump is certifying that Sudan “constitute[s] an unusual and extraordinary threat to the national security and foreign policy of the United States,” whether due to its support for terrorism, human rights abuses, or destabilizing behavior in its region. The prohibition on trade and economic engagement with Khartoum will remain in place until this time next year when the White House will have to decide whether to extend the executive order again. Still, extending the order sends a different message from the one the administration had communicated when President Trump’s latest travel ban dropped Sudan from the list of countries whose citizens are prohibited from entering the United States.

2) State Department

Department of State Approves Military Sales to Qatar. On November 1, the State Department announced it has approved Foreign Military Sales to Qatar, following a trip to the Middle East by Acting Assistant Secretary for Political-Military Affairs Tina Kaidanow. The package includes services and facilities that would support the Qataris’ F-15Q fighter jet program, but it does not include munitions. Per US law, the State Department issued a certification to Congress, notifying members of the potential sale.

US Delivers A-29 Aircraft to Lebanon. On October 31, the United States and Lebanon announced the delivery of two A-29 light aircraft to the Lebanese Armed Forces (LAF). Despite concerns that the LAF works with, or is controlled by, Hezbollah—a designated terrorist organization—the United States delivered the aircraft to assure US support for Lebanon. The US ambassador to Lebanon, Elizabeth Richard, explained that providing the aircraft and other support to the LAF is crucial for maintaining the LAF as a unifying force in Lebanon, which many view as just barely preserving stability in a volatile region.

III. Judicial Branch

Benghazi Suspect to be Tried in the United States. This week, a group of US commandos captured a Libyan man accused of involvement in the September 11, 2012 attack on a US diplomatic compound in Benghazi, Libya which left four Americans dead, including Ambassador Christopher Stevens. Later in the week, it was reported that the suspect will be tried in the Washington, DC federal court. This marks a departure from President Trump’s campaign rhetoric, in which he vowed to put suspected militants and/or terrorists in the United States’ controversial Guantanamo Bay prison. Mustafa al-Imam, the suspect, will be the second Libyan to stand trial for the attacks in Benghazi.

Anti-Boycott, Divestment, and Sanctions Legislation. On November 2, Americans for Peace Now (APN) held a conference call with Brian Hauss of the American Civil Liberties Union (ACLU). Hauss is lead counsel in Koontz v. Watson, a lawsuit that asserts that the state of Kansas’s prohibition on state contractors’ right to boycott the state of Israel violates Ms. Koontz’s first amendment right to free speech through political participation in movements like the Boycott, Divestment, and Sanctions (BDS) movement. Though Hauss is currently fighting this specific case in Kansas, he explained that the ACLU and others are closely monitoring developments in other states, including Texas where recent events in the city of Dickinson raised the issue of state anti-BDS laws to national attention. Hauss said that 23 states have passed, or are considering, anti-BDS legislation, and the Israel Anti-Boycott Act was introduced earlier this year in Congress before receiving significant pushback from critics and civil liberties advocates.

At the outset of the call, APN’s Director of Policy and Government Relations, Deborah Shushan, explained the issues that her organization, and other critics of the anti-BDS legislation, have with states’ efforts to suppress boycotts of Israel. First and foremost, these laws infringe upon US citizens’ rights to free speech, Shushan and Hauss argued. Second, APN takes issue with the fact that many of the anti-BDS laws around the country conflate the illegal settlements constructed by Israeli settlers in the Occupied West Bank with the state of Israel itself. So, according to many of these laws, anyone who refuses to buy goods produced in settlements is punished the same as they would be if they endorsed a boycott of goods produced in Tel Aviv.

As for the legal implications of Kansas and other states’ anti-BDS legislation, Hauss explained that such laws violate the first amendment of the Constitution in two ways. First, since 1982, the Supreme Court has held that boycott movements are forms of speech protected by the first amendment. Hauss argued that precedence for boycotts as forms of protest and speech long predates the 1982 NAACP v. Claiborne Hardware Co. case, citing the Boston Tea Party as the United States’ preeminent case of boycotting. The second point Hauss raised concerns state governments conditioning public jobs or benefits on forfeiting one’s right to exercise his or her rights. In the case in Kansas, for example, Ms. Koontz was essentially asked to waive her first amendment right to free speech as a condition for working for the state’s Department of Education. Hauss argued that the Supreme Court has previously held that such preconditions are unconstitutional.

As Hauss concluded his briefing, he discussed the prospects of the Israel Anti-Boycott Act becoming federal law. As written, Hauss believes it will surely be struck down as unconstitutional. Further, he said that in his legal opinion, it would be extremely difficult to amend the language of the proposal to avoid violating the first amendment, thus rendering any version of the bill unconstitutional.