Week of January 10th, 2014

Executive Summary

The Washington think tank community produced a slew of papers on a number of issues impacting the Middle East.

The Monitor Analysis looks at a case brought to the US Supreme Court of the president’s power to make recess appointments.  Although the case can be seen as a bit of arcane US Constitutional law, it has a severe impact on the power of the president.  Traditionally, the Senate has given the president a bit of leeway in recess appointments – more than that required under the Constitution.  In an attempt to appoint some controversial people to office, Obama pushed the boundaries of those understandings, which brought forth a court case that has, so far, gone against Obama.  This is not the first time Obama has  pushed what he is allowed to do under the Constitution and it appears that the courts may for the first time in a long while, be willing to restrict the power of the US president.


Think Tanks Activity Summary

A new year gives think tanks to make suggestions to the government on goals for the year.  The Heritage Foundation does that by making five national security suggestions for Congress to accomplish in 2014.  Noting the growing menace of Iran, they suggest, “Effective and appropriate investment in ballistic missile defense is absolutely critical in a modern world where missile capabilities are proliferating. Iran and North Korea are cooperating on obtaining ballistic missiles that can hit anywhere in the U.S. in less than 33 minutes. They threaten U.S. allies. The U.S. cannot afford to turn a blind eye to these crucial developments. The U.S. should pursue and acquire the best available missile defense capabilities, including an improved Aegis missile defense system, the Ground-Based Midcourse Defense system, and space-based interceptors.”

The Heritage Foundation also looks at the top five foreign policy goals for the government too.  In addition to concern about Iran, they also encourage bolstering US allies in the Middle East.  They note, “While the Obama Administration has rushed to engage adversaries such as Iran and Syria, longtime allies such as Israel, Egypt, and Saudi Arabia have chafed at what they regard as Washington’s neglect of their core security interests. The U.S. should reassure its allies that it will not sacrifice their security interests for an illusory nuclear deal with Iran, press them to accept a diplomatic solution in Syria that preserves the Assad regime, or force them to accept half-baked deals with terrorists…Rather than rushing to midwife stillborn instant democracies, Washington should put a higher priority on supporting freedom, particularly economic freedom. Bolstering economic freedom can help fuel economic growth, create jobs for disillusioned youths who would otherwise be potential recruits for radical movements, and gradually build larger and more influential middle classes, which are building blocks for stable democracies.”

The CSIS looks at the US participation in Syrian CW destruction.  They note, “So far, Syria’s production capabilities and all unfilled munitions have been destroyed on land. Syria missed the December 31 2013 deadline for removing the most significant chemicals from Syria, but removal began a week later on January 7, 2014. Trucks are scheduled to bring chemicals to the port of Latakia, where they will be loaded onto Danish and Norwegian ships. They will meet up with the Cape Ray at an Italian port (not specified but it could be Trieste) where they will be off-loaded onto the U.S. ship. Using two field-deployable hydrolysis systems (FDHS) at a cost of $5M each, it should take between 45 and 60 days of operation to process the chemicals that the United States anticipates taking on.  Additional processing of the resulting effluents will be required.”

The CSIS looks at perceptions of the US in the Middle East.  They note, “The Arab leaders do not trust U.S. strategy toward Iran. They complain about U.S. policy toward Iran’s allies in Syria and Iraq. They remain aggrieved that the United States maintains a close relationship with Israel while remaining distant from the Palestinians. As it has been for many years in the past, the list is long.  Yet in years past, the Arab states were willing to swallow their complaints, because they needed the United States to protect them from their most pressing threats. In the eyes of many, the United States is now abetting their most pressing threats. While consultations between allies can alleviate misunderstandings, much of the tension between the United States and its Arab allies reflects fundamental differences in strategy. Neither side is likely to shift its strategy soon, and relations will reflect that fact.”

The Carnegie Endowment looks at the election on the new Egyptian constitution.  Their concern is that, “What it seems Egyptian authorities are most intent on, rather than restoring democratic processes, is ensuring there is a strong show of public support for the post-Morsi military-backed order. Authorities want “big crowds” and “expect everyone who demonstrated on June 30 [calling for Morsi’s removal] to turn out to vote,” said Prime Minister Hazem el-Beblawi during a December 29 television interview. Specifically, Egyptian authorities are looking for numbers that will decisively surpass the 18 million voters and 64 percent approval rating achieved by Morsi in the 2012 referendum.  A strong showing is important for domestic political reasons and international legitimacy. Recent Zogby polling suggests that public opinion on the military-backed transition remains quite polarized, and President Mansour, among other officials, has called on Egyptians to “impress the world” with their turnout.”

The Carnegie Endowment also looks at the Special Tribunal for Lebanon (STL) scheduled to start its trial proceedings in The Hague on January 16 in regards to the assassination of former Lebanese Prime Minister Rafik Hariri in February 2005.  They note, “The STL has helped political life continue. In the framework of the tribunal, individuals are indicted as individuals and not as part of the party or sect they represent; and they are considered innocent until proven guilty. The tribunal is thus the box in which the insurmountable obstacle of the assassination has been parked, and it allows for the separation of the judicial from the political.”

The German Marshall Fund looks at the problems with Turkey and its neighbors and allies.  They note, “Against the backdrop of Turkey’s internal crisis, there is a great deal of external maintenance to be done, especially with regard to NATO allies and with international investors.  In practical terms, Turkey’s tentative decision to opt for Chinese surface-to-air missiles in preference to U.S. and European bids, has raised political hackles across the alliance and works against the evident need for more closely integrated air and missile defense in the Eastern Mediterranean.  In more atmospheric terms, repeated references by Prime Minister Erdoğan and others in his government to international conspiracies, hidden hands, interest rate lobbies, and other murky forces allegedly stoking Turkey’s internal and external travails, has produced dismay on both sides of the Atlantic.”

The Wilson Center looks at the potential for stability in Afghanistan.  They note, “Afghanistan’s future will largely be determined by domestic political considerations in South Asia that the U.S. has little ability – or desire – to influence. For example, the Taliban insurgency’s trajectory will hinge to a great extent on Afghanistan’s upcoming elections and resulting new leadership. Only a legitimately elected government that properly administers justice, effectively delivers basic services, and above all is seen as clean, will convince Afghans that their government is a better alternative to the Taliban – and consequently slow recruitment to the insurgents’ cause.”

The Brookings Institution looks at a crisis simulation between the US and Iran over Syria.  It posited a hypothetical situation (very hypothetical from the perspective of real-world events at the time of the game) in which the Assad regime had suffered a number of significant setbacks that had greatly weakened its position. The Russians had largely ceased to resupply the regime in return for huge purchases of Russian arms by the Gulf states. Meanwhile, Gulf and Western states had increased their provision of arms to the opposition, particularly providing large numbers of man-portable anti-aircraft missiles and cutting-edge anti-tank weaponry. The new Western arms combination of these two factors produced a significant degradation of the regime’s firepower; the new weapons led to the destruction of more and more regime war machines, while the loss of Russian resupply meant that the regime could not keep pace with the soaring attrition rate.




Obama, the Senate, and Recess Appointments

A Supreme Court case took place on Monday, which on the surface seems trivial, but may have a major impact on the power of the American President.  Should the Supreme Court rule against Obama, the presidency will lose a power it has had for over 200 years.  If the court rules for Obama, the balance of power carefully constructed in the US Constitution, will swing towards the President.  The ruling could also have a major impact on the flow of power from the Congress to the President since the beginning of the republic.

The issue is recess appointments and four specific appointments.  On January 4, 2012, Obama made four recess appointments while the Senate was conducting pro forma sessions. A federal appellate court invalidated these appointments on the principal ground that they were made during a Senate session rather than “the Recess” within the meaning of the Constitution. The U.S. Supreme Court has never before considered the meaning or application of the Recess Appointments Clause, but it has agreed to review President Obama’s recess appointments this term.

In an attempt to balance the powers of the legislative and executive branches of the US government, the writers of the constitution gave the president the power to appoint key government officials like judges, ambassadors, military officers, and cabinet secretaries.  However, the Constitution made it clear that these appointments must receive the “advice and consent” of the US Senate.

Since the Constitution was written in the 1780s, when travel was by foot or horse, the Constitution made an arrangement to make recess appointments when the Senate was not in session and it might take weeks to gather the Senate for a vote.  Article II, section 2, clause 3 of the Constitution provides that “[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

Alexander Hamilton, one of the framers of the Constitution, described the recess appointment power as “nothing more than a supplement” or an “auxiliary method of appointment,” to operate “in cases to which the general method [of appointing officers] was inadequate.” He explained further:  The ordinary power of appointment is confided to the President and Senate jointly, and can therefore only be exercised during the session of the Senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers, and as vacancies might happen in their recess, which it might be necessary for the public service to fill without delay.

However, the recess appointment became a powerful tool for presidents who were trying to make a controversial appointment or faced a Senate controlled by a different party than the president’s.

It didn’t take long before the president tried to push the meaning of the constitution.  In 1823, President James Monroe’s Attorney General William Wirt issued an opinion expanding its use. Wirt addressed the question of filling a vacancy created as the result of the statutory expiration of the commission of the navy agent in New York. Although the vacancy arose while the Senate was in session, Wirt concluded that the President could fill the vacancy once the Senate was in recess because the president was unable to act.  That has been the position of presidents for the last 190 years.

The Senate reacted in 1863 by refusing to pay recess appointments until they were actually confirmed by the Senate.  However, they rescinded it partially in 1940 by agreeing to the Wirth definition of a recess appointment.

Needless to say, presidents have used the recess appointment whenever they wanted, with few objections.  Theodore Roosevelt used it frequently and President Bush used in 20 time in just the first two years of his presidency.  Obama used it in his first two years in the White House even though the Democrats had an overwhelming majority in the Senate.

Of course, the Senate had several options to stop recess appointments too.  The most common was to not recess – something Democratic Senate Majority leader Harry Reid did during the final years of the Bush presidency.  He would hold pro-forma Senate sessions every three days even though most members were back home so Bush could not make appointments.

Although the Democrats still control the Senate, the Republican House had another way to stop recess appointments.  Article I, Section 5, of the Constitution states that neither house of Congress may adjourn for more than three days without the consent of the other house. The House of Representatives did not consent to a Senate recess of more than three days at the end of 2012, and so the Senate, consistent with the requirements of the Constitution, had some sort of session every few days.

Obama problem was that he wanted to make several controversial appointments that wouldn’t have made it through a traditional Senate confirmation.  Therefore, he pushed the definition of the recess appointment and attempted to unilaterally appoint three people to seats on the National Labor Relations Board and Richard Cordray to head the new Consumer Financial Protection Bureau (after the Senate blocked action on his nomination), even though the Senate was holding pro forma sessions every three days in accordance with the Constitution.  Obama justified this by noting grounds that the Senate’s pro forma sessions could be disregarded because the Senate, by its own declaration, was not intending to conduct business during these pro forma sessions. While acknowledging that “[t]he question is a novel one” with “substantial arguments on each side,” the Office of Legal Counsel concluded that “while Congress can prevent the President from making any recess appointments by remaining continuously in session and available to act on nominations, it cannot do so by conducting pro forma sessions during a recess.”

This didn’t go over well with Senate Democrats who are jealous of their prerogatives’.  Democratic Senator Baucus blasted the White House for making the recess appointment without congressional approval.  “Senate confirmation of presidential appointees is an essential process prescribed by the Constitution that serves as a check on executive power and protects Montanans and all Americans by ensuring that crucial questions are asked of the nominee—and answered,” Baucus said.

The courts, who are the arbiter in this, haven’t’ agreed with Obama either.  The U.S. Court of Appeals for the D.C. Circuit invalidated these recess appointments on two grounds not directly related to the use of pro forma sessions. First, the court held that the adjournment in question took place within a formal enumerated Senate session and therefore did not constitute “the Recess” of the Senate within the meaning of the Recess Appointments Clause. Second, a majority of the panel held that the vacancies in question did not “happen” during the recess and therefore could not be filled under the Clause at all.

Although the US Supreme court hasn‘t ruled yet, it sounds like they are unlikely to support Obama’s legal stance.  Even Obama appointee Justice Elena Kagan, said at least twice that “it was the Senate’s job to decide” when it goes out on recess, thus giving it the ability to control when, or if, the president may make such appointments.

Conservative Justice Antonin Scalia, argued that the president’s use of the recess appointments to fill empty slots on the National Labor Relations Board “flatly contradicts the clear text of the Constitution.” When U.S. Solicitor General Donald Verrilli defended the decision by saying the Constitution is ambiguous on that question, Scalia retorted, “It’s been assumed to be ambiguous by self-interested presidents,” to gasps and laughs in the chamber.

The Future of the American Presidency

Although this issue may seem to be a bit of arcane constitutional law, it has a major impact on the powers of the American president.  For the last 200 years, the American president has gained in power compared to the other branches of government, the judiciary and Congress.  When presidents have overstepped their bounds, it has usually been on the ground of national security – something that is rarely challenged by Congress, and, if it makes it to court, is frequently upheld.

By making these controversial appointments to the NLRB, he has weakened his and future president’s powers.  And, it is quite probable that future presidents will have even less latitude in recess appointments than they have in the past.  This is a severe reduction in the power of the president.

This may be only the beginning.  Every decision made by those appointees will be struck down as unconstitutional.  This will lead to a raft of other court cases.  And, depending on the ruling, there may be other court cases challenging the power of the president’s power.  Ironically, in an attempt to increase the power of the presidency, he may have severely restricted it.

There may be other impact.  Over the years, presidents have frequently used executive orders rather than go through the legislative process.  Obama has gone further and has also changed legislation by deciding what should be enforced.  If the Supreme Court signals in this case that the presidency has exceeded its constitutional authority, other cases may be headed to the Supreme Court that will further trim the power of the presidency.

And, there is evidence that this already is beginning.  On Tuesday, the DC Court of Appeals clipped the power of the presidency a bit more.  In a unanimous decision (with some dissent on the justification), the court invalidated the Net Neutrality rules imposed by the FCC because Congress refused to approve them.  This is a blow to Obama who made Net Neutrality an issue in his 2008 campaign.

If the recess appointment decision goes against Obama, it won’t have much impact now that Reid has eliminated the filibuster for presidential appointees.   But it may be critical next year if the GOP holds the majority in a narrowly divided Senate. In the case of a controversial appointment by Obama, a Senate leader, who is a Republican could refuse to bring the nomination to the floor, leaving Obama unable to make recess appointments. If the Court rules against Obama and the GOP’s odds of winning big in November start to climb this year, expect Obama to nudge anyone in a Senate-confirmable federal position to quit this year so he can fill their vacancy on favorable terms.



Top Five National Security Priorities for Congress in 2014

By Steven P. Bucci and Michaela Dodge

Heritage Foundation

January 15, 2014

Issue Brief 4128

America is dramatically less safe and prosperous than when President Obama took office. Threats to the nation have increased as the President’s “leading from behind” strategy only caused the U.S. to lose respect and influence on every front. U.S. adversaries became more emboldened. As a result of President Obama’s poor leadership, the U.S. will have to face the return of great power competition, the spread of global terrorism, assaults on U.S. sovereignty and individual liberties from unaccountable international organizations, and an uncertain global economy made worse by unsustainable fiscal policies and debt. The U.S. ability to “command its own fortunes,” as George Washington put it, will be greatly diminished.

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Top Five Foreign Policy Priorities for 2014

By Nile Gardiner, Theodore R. Bromund, and James Phillips

Heritage Foundation

January 14, 2014

Issue Brief 4123

The United States faces mounting challenges abroad in 2014. With weak leadership from the White House over the past five years, the U.S. has been confronted and all too often sidelined by America’s adversaries and strategic competitors. The Obama Administration’s “leading from behind” strategy has been a spectacular failure that has led to confusion among traditional U.S. allies while emboldening the enemies of freedom.  In 2014, the U.S. should be willing to stand up to those who threaten its interests while it stands with those who share its values and goals. Foremost among those values are the principles of sovereignty and self-determination, which must be as central to U.S. foreign policy as they are sacred to its system of government. Here are the top five foreign policy priorities for the Administration and Congress in 2014.

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Syria’s Chemical Weapons Destruction: It takes a Flotilla

By Sharon Squassoni and Bobby Kim

Center for Strategic and International Studies

January 13, 2014

In a few weeks, the U.S. vessel Cape Ray will set sail for the Mediterranean.  This 648-foot long ship will be engaged in serious business once it reaches its destination: destroying some 700 tons of Syrian chemical weapons.  Under international pressure and following reports of chemical weapons use against its own citizens in 2012 and 2013, Syria acceded to the Chemical Weapons Convention in September 2013 and declared its inventory shortly thereafter– about 20 metric tons of mustard gas, some unfilled munitions, over 1000 metric tons of precursor materials (for VX and Sarin) and 290 metric tons of raw material, in addition to production sites (more than 20 sites in all).

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Middle East Notes and Comment: A Deeper Difference

By Jon Altman

Center for Strategic and International Studies

January 14, 2014

If you were to believe the papers, falling U.S. standing in the Middle East is all about a supposedly feckless U.S. administration that cannot be bothered to pursue U.S. interests. In response, regional governments have reconciled themselves to a reduced U.S. role and resolved to carry on with little regard for U.S. preferences.  Such a reading misses much of what is driving international relations in the Middle East and U.S. relations with the countries of the region. What is truly at play is a reconfigured threat environment in which internal concerns outweigh external ones, and in which states increasingly question the wisdom of Western-style liberalization. In this environment, the idea has begun to circulate not only that the United States is not the asset it once was but that it is often a liability. The Obama administration’s decisions play a role in U.S. regional standing, but larger historical forces are also at play and have not been fully appreciated.

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Legitimizing an Undemocratic Process in Egypt

By Michele Dunne

Carnegie Endowment

January 9, 2014

The U.S. government, European governments, and international organizations interested in electoral fairness face a difficult balancing act with the January 14–15 constitutional referendum in Egypt. They want to observe the vote on the country’s new constitution to encourage Egypt to return to a democratic path after the July coup in which President Mohamed Morsi was removed. Several teams of international observers, whose post-referendum statements will command attention from policymakers and the media, are lined up for deployment.  But there is a real danger that international players will lend legitimacy to a flawed and undemocratic process. They risk playing into the Egyptian transitional government’s efforts to focus attention on the technicalities of the post-coup political road map while diverting notice from a deeply troubling context—widespread unrest.

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Lessons From Lebanon’s Hariri Tribunal

By Nadim Shehadi

Carnegie Endowment

January 14, 2014

Eagerly anticipated by some, highly contested and even dreaded by others, the Special Tribunal for Lebanon (STL) is scheduled to start its trial proceedings in The Hague on January 16. In total, five suspects with connections to Hezbollah will be judged in absentia after having been indicted for taking part in the assassination of former Lebanese prime minister Rafik Hariri in February 2005.  This is indeed significant progress not only for Lebanon but also for the region as a whole. However, the establishment of the tribunal and the road to trial have been littered with obstacles and criticism. The story of the tribunal is a reminder of the difficulty of implementing such international measures of accountability. Lessons from the STL’s contributions and challenges should guide the growing debates in other Arab countries about justice and accountability.

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Turkey Inside-Out: Old Realities, New Risks, and Strategic Implications

By Ian Lesser

German Marshall Fund

January 13, 2014

Turkey’s burgeoning corruption scandal and the deepening political and legal crises facing the ruling Justice and Development Party (AKP) government seem strong evidence of something new on the Turkish scene. There is now a real risk that internal factors will jeopardize Turkey’s prosperity and security, just as the country faces formidable challenges on its borders. As Turkey seeks a new social and political equilibrium, there are some strategic choices to be made in foreign and security policy. Overall, Turkey, the United States, and Europe will need a new narrative to define their cooperation in the face of deepening Middle Eastern chaos, with no end in sight. This analysis suggests a few steps that can be taken to contain the damage to Turkey’s relations with transatlantic partners, and improve the prospects for crisis management on Turkey’s borders.

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Afghanistan Stability: a Pipe Dream?

By Michael Kugelman

Wilson Center

January 13, 2014

In recent days, U.S. officials have admitted that negotiations with Afghan President Hamid Karzai on a bilateral security agreement (BSA) continue to make little progress.

Washington’s ambassador to Kabul has reportedly concluded that Karzai is unlikely to sign an accord before the elections this spring – and yet the Obama administration, after allowing earlier deadlines to lapse, is now insisting that any agreement needs to be in place “in weeks, not months.”  Such talk increases the possibility that Washington – and, most likely, its NATO allies – will be unable to leave a residual troop presence in Afghanistan after international forces leave at the end of this year. It’s a prospect that arouses anxiety from Washington to New Delhi and many places in between – and likely in Kabul as well.  Such concern is understandable. But let’s keep things in perspective: The stabilizing role of a post-2014 force – and its overall utility – would be modest at best.

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Hard Road to Damascus: A Crisis Simulation of U.S.-Iranian Confrontation Over Syria

By Kenneth M. Pollack

Brookings Institution

January 13, 2014

Last September, as part of its annual conference with the United States Central Command, the Saban Center for Middle East Policy at the Brookings Institution conducted a day-long simulation of a confrontation between the United States and Iran arising from a hypothetical scenario in which the Syrian opposition had made significant gains in its civil war and was on the verge of crushing the Assad regime.  The simulation suggested that, even in the wake of President Rouhani’s ascension to power and the changed atmosphere between Tehran and Washington, there is still a risk of misunderstanding and miscalculation between the two sides.

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