Rebecca Ingber

@becingber

Law prof at Cardozo Law. Former U.S. State Dept a few times over. Writes on international law, war powers and national security, presidential power and bureaucracy.

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Rebecca Ingber@becingber· 18d

The unitary executive

Rebecca Ingber@becingber· Apr 7

The U.S. RUDs to the Genocide Convention state its understanding that “intent to destroy” requires “specific intent” and that acts committed within armed conflict w/out specific intent to destroy would not qualify as genocide. An intentionally high bar that the US President states intent on meeting.

ARTICLE I
The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.
ARTICLE Il
In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethni-cal, racial or religious group, as such:
(a) Killing members of the group;
(6) Causing serious bodily or mental harm to members of the group;
(e) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
ARTICLE III
The following acts shall be punishable:
(a) Genocide;
(6) Conspiracy to commit genocide;

"(1) That the term 'intent to destroy, in whole or in part, a national, ethnical, racial, or religious group as such' appearing in article II means the specific intent to destroy, in whole or in substantial part, a national, ethnical, racial or religious group as such by the acts specified in article II.

(4) That acts in the course of armed conflicts committed without the specific intent required by article Il are not sufficient to constitute genocide as defined by this Convention.

Rebecca Ingber@becingber· Mar 17

1) The letter states that these strikes are "the latest stage in the ongoing international armed conflict" with Iran, since before last June. Yet the USG's position on its war powers resolution obligations will be that the hostilities have not surpassed 60 days. And-->

Rebecca Ingber@becingber· Mar 13

The White House could certainly claim this. But Congress explicitly stated in the war powers resolution that appropriations do not equal authorization to use force and should not be interpreted as such.

SEC. 8. (a) Authority to introduce United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred--
(1) from any provision of law whether or not in effect before the date of the enactment of this joint resolution), including any provision contained in any appropriation Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this joint resolution; or

Rebecca Ingber@becingber· Mar 13

Watching this foreseeable chaos and tragedy unfold and I keep thinking about what this administration’s own lawyers revealed about its national security process, in the OLC memo on Venezuela. The not war by not planning theory of war powers:

There was no contingency plan for casualties, no contingency plan for wreaking havoc. This is a stark admission in itself. And it is the legal hook on which the OLC memo hangs its analysis.
With no concrete contingency plan, there is no plan that would constitute "constitutional war," and thus there is no risk of constitutional war, so the theory goes. One wonders what work "risk of escalation" does at all if such is the analysis.

In the Venezuela context, one perceives that planning would have been a net negative in the legal analysis, because it would have had to take account of the real risk of escalation. The lack of a plan enabled the lawyers to look the other way.
There is no plan for war, hence there can be no war.
It is difficult to miss the unfortunate incentive structure this legal analysis introduces for policymakers. Do not make contingency plans, the lawyers imply, lest the plan itself acknowledge the genuine risk of escalation. We have arrived at the "not war by virtue of not planning" theory of constitutional war powers.

Rebecca Ingber@becingber· Mar 5

And consider that even judges who have pushed back on Trump’s power grabs based on wild national security claims have said they would defer entirely to his factual assertions. Here, the 5th Circuit in the Alien Enemies Act case:

interpretating the statute's text and also applying the interpretation, then the President's fact-findings are not within our review authority. For example, Petitioners here have challenged the President's finding that the Maduro regime in Venezuela is directing the actions of TdA in this country. We interpret the Ludecke Court to have made conclusive the President's "belief" that certain categories of aliens are enemies and engaged in hostile actions.
Id. at 170. Thus, even though Petitioners insist there is no basis to find the Maduro regime is directing TA's action in the United States, it is not for a court to review a President's findings about the facts when he is employing the AEA. We accept all Presidential fact-findings about what events have occurred — including who is directing them.

Rebecca Ingber@becingber· Mar 5

Recall Trump’s exec order warning executive branch lawyers not to disagree with him on questions of law — www.whitehouse.gov/presidential...

＝
THE WHITE HOUSE
WASHINGTON
Sec. L. Rules of Conduct Guiding Federal
Employees

Sec. L. Rules of Conduct Guiding Federal
Employees Interpretation of the Law. The President and the Attorney General, subject to the President's supervision and control, shall provide authoritative interpretations of law for the executive branch. The President and the Attorney General's opinions on questions of law are controlling on all employees in the conduct of their official duties. No employee of the executive branch acting in their official capacity may advance an interpretation of the law as the position of the United States that contravenes the President or
the Attorney General's opinion on a matter of law, including but not limited to the issuance of regulations, guidance, and positions advanced in litigation, unless authorized to do so by the President or in writing by the Attorney General.

Rebecca Ingber@becingber· Mar 5

It is no accident of language that the presidents’ lawyers do not themselves determine whether he has constitutional authority to act — in other words, whether his wars are legal. Instead, they leave that to him. The president “could decide” is the new OLC theory of war powers.

conclusion of illegality. In crafting the memo as justification, the authors remove themselves from the place of decider. The memo itself does not find that the president has authority because the operation is not "war in the constitutional sense," (the standard OLC has set for when the president may use force without congressional authorization); rather it states that the president
"likely could conclude that the operation falls short of war in the constitutional sense." So too, the memo makes clear that the facts might not suggest it-in fact the evidence the authors have provided contradicts it-but Maduro could be described as the leader of a supposed drug trafficking group. Ultimately, the most the authors are willing to state is that the president could "make the determinations necessary to order ABSOLUTE RESOLVE."

Rebecca Ingber@becingber· Mar 4

War is peace. 2 + 2 = 5. Don’t believe your lying eyes.

Speaker Johnson Says U.S. 'Not at War' With Iran
By Sabrina Siddiqui
HOUSTO
Speaker of the House Mike Johnson ANDREW
HARNIK/GETTY IMAGES
House Speaker Mike Johnson denied the U.S. was engaged in a war with Iran, echoing Republican lawmakers who have sought to downplay the scale of the conflict.
"We're not at war right now. We're four days into a very specific, clear mission and operation," Johnson told

Rebecca Ingber@becingber· Mar 2

*caveat

Before we dive in, a note of caution. Quite apart from the redactions, many sections of this memo are so confusingly written that it can be difficult to follow the legal analysis. The memo regularly and inexplicably threads together different bodies of law, weaving in and out of them seemingly at random. It confuses the law governing the use of force with the law governing the conduct of hostilities. It conflates concerns about criminal liability for personnel with the constitutional separation of powers. It poses hypotheticals throughout, such as "critics may say" statements that are framed as counterarguments but at places that are inapposite to the surrounding legal questions.
As a result, in order to address the office's legal theories fairly, the reader must first dig deep and with real generosity to draw out the potential legal arguments from this thicket.

Rebecca Ingber@becingber· Feb 28

I’d like to know what Carney meant by sovereignty and territorial integrity and the rules-based order when he spoke these words just one month ago.

Rebecca Ingber@becingber· Feb 5

Journal: