Trump’s Executive Order on the ICC is Illegal, Not Just Shameful

by Carrie DeCell and Jameel Jaffer
October 13, 2020

Six months before he issued an executive order imposing crippling sanctions on the International Criminal Court, President Trump reversed the military’s demotion of Special Operations Chief Eddie Gallagher. Gallagher’s fellow Navy Seals had accused him of deliberately shooting non-combatants, including women and children, and of stabbing an unarmed, sedated, teenage captive with a hunting knife. Trump complained that Gallagher had been “mistreated,” labeling him a “very tough guy” and “one of our ultimate fighters.” Where Gallagher’s fellow soldiers saw a war criminal, Trump saw a hero. The same day he cleared Gallagher, Trump pardoned two other U.S. servicemen convicted or accused of war crimes.

The executive order relating to the ICC is proof that Trump’s decision to clear accused and convicted war criminals reflected a worldview and not simply a whim. Intended to shield U.S. and allied soldiers who commit war crimes, and couched in the extreme rhetoric about national sovereignty one normally associates with rogue regimes, the order exposes human rights investigators and prosecutors to the kinds of sanctions usually reserved for drug kingpins and terrorists. The order is grotesque, as others have observed. It is also illegal. Thanks to a lawsuit filed by the Open Society Justice Initiative and a group of prominent international lawyers last week, a federal judge will now have the opportunity to say so.

The mechanics of the executive order are straightforward. It gives the Secretaries of State and Treasury authority to freeze the assets of foreign citizens who have materially supported or directly participated in the ICC’s investigations of U.S. personnel or the personnel of certain U.S. allies. It also bars those foreign citizens and their family members from entering the United States. It also bars others—including U.S. citizens and residents—from transacting with, or providing goods or services to, the foreign citizens whose assets the government has frozen.

A threshold problem with the order is that Trump does not actually have the authority to issue it. The president has statutory power to address “national emergencies” that involve “unusual and extraordinary threats” to national security or foreign policy. While the courts have generally left it to the executive branch to give meaning to these phrases, to hold that the ICC’s activities constitute a national emergency would require courts not just to defer to the executive branch but to abdicate their role altogether. The protection of war criminals is decidedly not a national imperative, and it would be remarkable and indeed unprecedented for an American court to give credence to the notion that it is.

The order’s visa restrictions raise more specific concerns. The courts have repeatedly recognized that U.S. citizens and residents have a First Amendment right to meet with and hear from foreign citizens, and they have required the government to justify visa denials that directly interfere with this right. While the president has authority to suspend the entry of foreign citizens if he concludes that their entry would be detrimental to U.S. interests, his decision must be backed by reasons that are at least “facially legitimate” and “bona fide.” Such reasons are entirely missing here. While Trump’s order states that the ICC’s investigations put national security at risk, it does not identify any harm that would result from the entry of ICC personnel into the United States. To the contrary, the order makes clear that the visa restrictions are retaliatory and performative, intended to “impose tangible and significant consequences” on those responsible for the ICC’s “transgressions” and to “demonstrate the resolve of the United States.”

But it is perhaps the order’s prohibition against providing support to ICC investigators that raises the most significant constitutional concerns. This prohibition, which applies not just to foreign citizens but to U.S. citizens and residents as well, bars essentially any form of support to those whom the Secretary of State has designated under the order. It precludes American lawyers and human rights advocates from advising the ICC, from supplying ICC personnel with legal and factual research, and from filing amicus briefs in support of ICC prosecutors. All of this activity is plainly protected by the First Amendment.


It it is perhaps the order’s prohibition against providing support to ICC investigators that raises the most significant constitutional concerns.

The theory underlying the order seems to be that activity that would otherwise be protected by the First Amendment loses its protection if its aim or result is to support ICC personnel whom the Secretary of State has designated for sanctions. But this theory is wrong. A decade ago, in a case called Holder v. Humanitarian Law Project, the Supreme Court held that the First Amendment did not foreclose Congress from prohibiting the provision of material support to designated organizations. But crucial to the Court’s reasoning in that case was that the organizations in question were engaged in terrorism. The Court reasoned that any form of support to such organizations would free up resources that could be used for politically motivated violence against civilians. It hardly needs to be said that this reasoning has no application here. The ICC is not a terrorist organization, even if Trump’s order would treat it as one.

The lawyers and scholars challenging the executive order are engaged in vital work that serves this country’s interests and honors its ideals. There is no justification for the president’s effort to interfere with it. Indeed, his order will protect those who commit the most heinous crimes, deny justice to victims, demoralize U.S. military personnel who serve honorably, and further erode the United States’ influence in the world. The order is shameful and illegal, and the court should invalidate it.

First They Came For Me and My Colleagues: The U.S. Attack on the Int’l Criminal Court

by Leila Sadat

June 29, 2020
 
[Editor’s note: Just Security is publishing this article in conjunction with an article by Diane Marie Amann, “I help children in armed conflict. The President is forcing me to stop.”]

President Donald Trump has taken the unprecedented step of issuing an Executive Order (EO) declaring the International Criminal Court (ICC) to be a “national security threat.”

The ICC? Really? Threatening the national security of a world superpower? This is a Court that has no police force of its own; is located far away in The Hague; has no territorial jurisdiction over the United States as the state has not joined the ICC’s founding Treaty. This is simply a Court of last resort, which steps in if no State is able or willing to prosecute those accused of committing the most heinous crimes known to humankind under laws that the United States accepts and used itself to prosecute the Nazis at Nuremberg. Yes, the Court has on its docket the investigation of crimes in Afghanistan and the possibility of investigating crimes in Palestine that implicate important U.S. interests, but there are many more reasonable measures the administration could have adopted to advance those interests than declaring that they constitute a “national emergency” and that the Institution authorizing them and persons conducting them should be punished for their “transgressions.”

The press conference announcing the EO order was full of hyperbole, scaremongering, and bluster, and has provoked an overwhelmingly negative reaction from several U.S. war crimes ambassadors, the American Bar Association, the International Bar Association, academics and a number of NGOs. As former war crimes ambassadors Clint Williamson, David Scheffer and Stephen Rapp have noted, the EO is largely “self-defeating,” and threatens US standing and leadership in the world.

Former Treasury Senior Advisor Adam Smith has catalogued some of the far-reaching implications of the Executive Order, which invokes the national emergency provisions of the International Emergency Economic Powers Act (IEEPA). According to Smith, under the IEEPA, punitive sanctions under the EO could broadly affect those who provide any kind of services to the International Criminal Court, including banks, insurance companies, consultants, airlines, and staffing services, as well as “U.S. persons … working with or for the Court.”

This would presumably include individuals like myself who have been pro bono consultants to the Office of the Prosecutor, visiting professionals, perhaps even defense counsel, staff, or individuals filing amicus briefs – even victims and witnesses. Those of us who have worked on ICC issues for many years have done so out of a sense of commitment to the ideals enshrined in the Court’s founding document: we recognize that “grave crimes threaten the peace, security and well-being of the world,” and insist that “the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be insured by taking measures at the national level and by enhancing international cooperation.” As a special advisor to the ICC Prosecutor, I have spent years, and even before that decades, analyzing the legal elements of crimes against humanity in some of the most grievous situations on earth. Mine is but a small part; those working for the Court as international lawyers and human rights defenders are tasked with applying and analyzing international criminal law to situations in which victims are crying out for justice. Whether it has been rape and sexual slavery in the Democratic Republic of the Congo, deportation and persecution in Myanmar, or allegations of genocide and crimes against humanity in Darfur, the ICC is tasked with bringing perpetrators to justice for the commission of atrocities that shock the conscience of humankind. To suggest that this activity presents an emergency situation that threatens US national security because of the ICC’s authorization of an investigation into crimes committed on the territory of Afghanistan during the past 20 years, is factually incorrect, as others have noted. But the premise of the Executive Order is not just factually wrong, it is inconsistent with fundamental American values.

This Executive Order is staggering in terms of its breath and potential chilling effect on Americans and U.S. entities. And it is likely only the tip of the iceberg. If the administration can deem the ICC a threat to national security, it could use the same tactic on every international institution with which it has a difference of view and any person or entity with whom it disagrees. Indeed, the administration and its surrogates have already attacked the WTO, the WHO, UNESCO, and the Human Rights Council. The administration has also withdrawn or threatened withdrawal from many important international agreements including the Paris Climate Change Agreement, the Iran Nuclear Deal, the Open Skies Treaty, NAFTA and the New START treaty with Russia. The President’s overbearing and otherwise illogical attack on the ICC only makes sense if it is understood as part of a larger strategy to attack an array of international institutions.

International lawyers and legal scholars sometimes treat the ICC as fundamentally different than other international institutions and regulatory regimes. It is not. It is an integral part of the global legal order, an order that promotes international peace and security for all, including Americans. Americans serve in all existing international institutions as judges, staff, interns, consultants, and visiting advisors. American businesses provide services to them and U.S. academics study them. If this EO is likely “not illegal,” as some have suggested, in future cases it seems that all Americans, American institutions and foreign nationals and entities with any connection to the United States can be prohibited from serving in, consulting with, offering services to, or in any other way “materially supporting” any international institution that an extreme isolationist president dictates.. Perhaps that is a real purpose behind the EO after all? Drive a harsh wedge between the US and the international legal order, by trying to bludgeon the body that stands for international criminal justice. Only time will tell of its true intent and effect.

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Leila Nadya Sadat has served since December 2012 as the Special Adviser to the International Criminal Court Prosecutor on Crimes Against Humanity. She is the James Carr Professor of International Criminal Law and Director of the Whitney R. Harris World Law Institute at Washington University School of Law. She is also the Director of the Crimes Against Humanity Initiative, a project to draft and have adopted a new global treaty on crimes against humanity. She is a Counsellor of the American Society of International Law and the current President of the International Law Association (American Branch). She received the Alexis de Tocqueville Distinguished Fulbright Chair in 2011 and an Honorary Doctorate from Northwestern University in 2017. From 2001-2003 she was a member of the United States Commission on International Religious Freedom and clerked for the Honorable Albert Tate on the U.S. Fifth Circuit Court of Appeals, as well as for the French Cour de Cassation and Conseil d’Etat. Sadat holds degrees from Rutgers University, Tulane University, Columbia University and the University of Paris – Sorbonne Law School. She has written this post solely in her personal capacity.

(Editor’s Note: This piece is part of Just Security’s ongoing coverage of Executive Order 13928, “Blocking Property of Certain Persons Associated With the International Criminal Court.” For more on this topic, readers can find the full collection here.)

Image: (L to R) Judges Marc Perrin de Brichambaut (France), Piotr Hofmanski (Poland), Antoine Kesia-Mbe Mindua (Democratic Republic of Congo), Bertram Schmitt (Germany), Peter Kovacs (Hungary) and Chang-ho Chung (Republic of Korea) during a swearing-in ceremony at the International Criminal Court (ICC) in The Hague on March 10, 2015. Back row ICC President judge Sang-Hyun Song (2nd L). AFP PHOTO / ANP POOL KOEN VAN WEEL netherlands out (Photo credit should read Koen van Weel/AFP via Getty Images)

Former Officials Challenge Pompeo’s Threats to the International Criminal Court

by Todd Buchwald, David Michael Crane, Benjamin Ferencz, Stephen J. Rapp, Ambassador David Scheffer and Clint Williamson

March 18, 2020

On March 17, Secretary of State Mike Pompeo stated from the podium of the State Department Press Room that two explicitly named individuals in the Office of the Prosecutor of the International Criminal Court would face possible sanctions in connection with the Prosecutor’s investigation of the Afghanistan situation, an investigation approved by the Appeals Chamber of the Court on March 5, 2020. Set forth below is a statement by Americans who in the past worked to secure the investigation and prosecution of atrocity crimes (genocide, crimes against humanity, and war crimes):

Secretary of State Mike Pompeo has threatened two staffers of the Office of the Prosecutor of the International Criminal Court, and their families, with punitive sanctions in connection with the Court-approved investigation by the Prosecutor of the Afghanistan situation. This act of raw intimidation of the Prosecutor’s staff members is reckless and shocking in its display of fear rather than strength. The International Criminal Court has an independent and impartial mandate. Secretary Pompeo’s crude threats against these two staffers debase America’s commitment to the rule of law. It can only undermine the confidence of those around the world who look to the United States for leadership and inspiration to protect the victims of the world’s worst atrocities.

There are any number of things that the U.S. Government could pursue as a better course of action. It could, for example, invoke its right, as a non-party State, under Article 18 of the Rome Statute and notify the Prosecutor that the United States “is investigating or has investigated its nationals or others within its jurisdiction with respect to criminal acts which may constitute crimes” in the Afghanistan situation, thus requiring the Prosecutor to stand down for at least six months on any further investigation of U.S. actions. Such an act of confidence by Secretary Pompeo would far better protect U.S. interests than the kind of threat issued yesterday.

Signed on March 18, 2020, by:

Todd Buchwald (U.S. Ambassador and Special Coordinator for Global Criminal Justice, 2015-2017)

David Michael Crane (Chief Prosecutor of the Special Court for Sierra Leone, 2002-2005)

Benjamin Ferencz (Chief Prosecutor, U.S. Army at the Einsatzgruppen Trial, Trials of War Criminals before the Nuremberg Military Tribunals, 1947-1948)

Stephen J. Rapp (U.S. Ambassador at Large for Global Criminal Justice, 2009-2015)

David Scheffer (U.S. Ambassador at Large for War Crimes Issues, 1997-2001)

Clint Williamson (U.S. Ambassador at Large for War Crimes Issues, 2006-2009)

The Catholics Who Hate Joe Biden—And Pope Francis

Some of Trump’s most committed Catholic supporters have leveled dark charges against Biden as they battle to sway the vote in crucial swing states. And wait until you hear what they think of the pope.

TISH DURKIN 

SHUTTERSTOCK / THE ATLANTIC

Joe Biden or Donald Trump: Who’s the better Catholic? If this seems like an odd question to raise in the context of a race for the highest secular office in America—and a race in which one of the two candidates is Protestant—never mind. Both campaigns, and their surrogates, are hotly contesting the answer.

The ex–Notre Dame football coach Lou Holtz slammed Biden as a “Catholic in name only” in his appearance at the Republican National Convention

“President Trump is ignoring Catholic teachings on care for the Earth, feeding the hungry, welcoming the immigrant,” Sister Simone Campbell, a social-justice activist who led a prayer at the Democratic convention, fired back in an interview with me not long after.

Father James Altman of La Crosse, Wisconsin, weighed in with a video that hit YouTube on August 30 and has garnered more than 1 million views to date: “You cannot be Catholic and be a Democrat … Repent of your support of that party and its platform or face the fires of hell!”

“Still think [Trump] is pro-life?” Lexington, Kentucky, Bishop John Stowe taunted on Twitter two weeks later. Stowe was responding to whistleblower allegations about the horrendous conditions in immigrant-detention facilities, including the high number of hysterectomies allegedly performed on women being held.

The same day, Catholic Vote—a right-wing PAC with no formal ties to the Church—announced a $9.7 million ad buy opposing Biden in swing states.

The wrangling over Biden’s religious bona fides is aimed at the thick strands of Catholic population that run through the most contested states on the electoral map. American Catholics have basically been split down the middle in terms of party loyalty since the 1970s, but Barack Obama edged out his Republican opponents in 2008 and 2012, winning 54 percent and then 51 percent of the Catholic vote. Hillary Clinton failed to match these results—most devastatingly, in heavily white swing-state counties—which explains the two parties’ fixation on reaching Catholics in Michigan, Minnesota, Wisconsin, Ohio, and Pennsylvania.

Of course, every presidential race since Roe v. Wade has featured tension between single-issue anti-abortion-rights Catholic voters and the more liberal, “social justice” Catholics who consider abortion just one issue of many. This time, though, the Catholic wars have greatly expanded. Trump’s amorality, and actions such as Attorney General Bill Barr’s resumption of the death penalty after a 20-year hiatus, have something to do with that: Liberal Catholics are now united in a kind of concentrated fury that conservatives have always directed at abortion. But another factor is the war within the Catholic Church in America—which has become more vicious and is fueled by the same forces that have wrought polarization and conspiracism in U.S. politics. While Joe Biden says he is fighting for the soul of the country, U.S. Catholics are fighting for the soul of their Church.

The president has aligned his reelection campaign with a proudly revanchist corner of the Church, one unfamiliar to many American Catholics, even those adamantly opposed to abortion. This faction’s positions on women, gay people, Muslims, immigration, socialism, and climate change are much closer to those of pro-Trump white evangelicals than to those of liberal Catholics, whom they consider not to be Catholics at all. Far from being bothered by Trump’s scuffles with the pope—Francis has called the president’s immigration policies “not Christian,” Trump has called him “disgraceful” for saying such a thing, and so on—these ultraconservatives applaud the attacks on the leader of their Church. To them, Francis is the embodiment of abhorrent modernist, globalist, even secularist values.

Read: The Pope, the Jews, and the secrets in the archives

The effective leader of this part of the Church, which is both superglued to certainty and whirring with conspiracy, is Carlo Maria Viganò. “So honored by Archbishop Viganò’s incredible letter to me,” Trump tweeted in early June, to little general notice. “I hope everyone, religious or not, reads it!” Later, during one of the several White House interviews he has granted to EWTN, the conservative Catholic television network, the president lauded Viganò as a “great gentleman,” who’d written “a tremendous letter of support from the Catholic Church.”

So what was in Viganò’s “tremendous” letter? It praised Trump to the high heavens, and in exactly the same way Trump would praise himself: Just as COVID-19 was beginning to ravage the Sun Belt, Viganò characterized the pandemic as “fading” and the “social alarm” over it as “waning.” He opined that “the use of street protests is instrumental to the purposes of those who would like to see someone elected in the upcoming presidential elections who embodies the goals of the deep state.” He decried a “media narrative” that blasted Trump’s visit to the Saint John Paul II National Shrine, even though reporters were just quoting D.C. Archbishop Wilton Gregory’s harsh criticism of the president’s photo op.

As Pope Francis might be at pains to point out, Viganò doesn’t speak for the Church. Pope Benedict XVI appointed him as the papal nuncio, or representative, to Washington, D.C., in 2011, a post he occupied until 2016, when he entered an exceedingly active retirement, lobbing grenades at Benedict’s more liberal successor. The most sensational of these was Viganò’s 2018 call for Francis to resign on the grounds that he’d allowed Theodore McCarrick to continue in a public role, despite his awareness that the then-cardinal had been sanctioned by Benedict for sexual abuse. (Viganò offered no evidence for his claim of such prior knowledge.) But Viganò’s lovefest with Trump is telling.

In late July, Trump appointed Taylor Marshall to his campaign’s Catholic Advisory Board. A Texan and convert to Catholicism, Marshall has long used YouTube to propagate a version of the faith that combines hard-core traditionalism with cloak-and-dagger intrigue. “From the year A.D. 33 to 2020, Catholicism has not changed one iota,” he stated in a recent video, terming those who disagree “algae, bacteria, goo.” In his new book, Infiltration: The Plot to Destroy the Church From Within, Marshall alleges a centuries-old plot to groom recruits to rise in the Church hierarchy, pervert its teachings, and thus empower the forces of global Freemasonry. He quotes admiringly from admonitions, laid down in the early 19th century by Pope Gregory XVI, against such notions as liberty of conscience and the separation of Church and state. As for Francis, Marshall depicts him as the culmination of “organized efforts” of the “enemies of Christ” to place a “pope for Satan on the Roman Chair of Saint Peter.”

Lately, Marshall has turned his prolific video-production efforts to promoting Viganò’s case against Biden—entwining it with the case against Francis. “They all want Joe Biden, who is a fake Catholic … on the so-called throne in Washington, D.C.,” he says of the pope and his liberal confreres, “so they can continue their agenda, which is to create the East-West globalism.” Translation: Deep-state China and deep-state America will converge with their Vatican enablers to do the devil’s work on Earth.

Read: Pope Francis, the revolutionary, takes on the traditionalists

Internet operations such as Church Militant, LifeSiteNews, and Complicit Clergy regularly churn out similar theories. “Anti-Catholic Kamala and Beijing Biden are not going to stop their assault on American Catholics so please scroll down below and donate any amount,” Michael Voris, the head of the Michigan-based Church Militant, recently enjoined on his home page. Like many of its companions in the genre, Church Militant makes for a problematic guardian of the faith. It was called Real Catholic TV until 2012, when the Archdiocese of Detroit threatened to sue unless it removed the word Catholic from its name.

Voris has little regard for many of his fellow Catholics’ life choices. “They’re living in a state of sin,” he told me, referring to couples, married or not, who use contraception. He disputes the notion that such moral rigidity is driving people away from Catholicism, but then, he doesn’t really care if it is. Given a choice between growing the institution by expanding its definition of who qualifies as a good Catholic and inviting the not-so-good ones to leave, Voris said he’d opt for “a smaller, purer Church.”

There is no reason to assume that strident doctrinal appeals, harnessed to baroque conspiracy theories, will attract most Catholic voters; in fact, the most recent polling data, which show Biden gaining on Trump among white Catholics, strongly suggest that they won’t. On the whole, American Catholics don’t, for example, just accept the concept of birth control; they use it. A majority favors at least some degree of legal abortion—and even those who don’t would probably balk at the idea of Francis as Lucifer’s wingman. To the degree that Catholics are also Americans who admire the Founders of this country—particularly Thomas Jefferson and Benjamin Franklin—they might feel the urge to back away slowly from avowed enemies of the Enlightenment.

And yet, a lot has happened, in the Church and in the world, since Obama won a second term. The revival of the sexual-abuse crisis in 2018 unquestionably led all kinds of Catholics to turn fresh rage on the Church hierarchy. The internet, which was still in its baby stage when the previous sexual-abuse crisis hit in 2002, has provided multiple platforms to amplify that anger, and repurpose it. Meanwhile, the Trump phenomenon has made conspiracy-based extremism the stuff of politics, and virtually everything the stuff of political polarization, including Francis himself. In 2014, the pontiff was rated equally favorably by American Catholics in both political parties, according to a Pew Research Center survey. Four years later, he was 10 points more popular among Democrats than among Republicans. Given these developments, it’s certainly conceivable that at least some Catholics have taken a sharp right turn since 2012, or might, if particular messaging were to hit them.

That is clearly what Team Trump is betting on, and it’s betting surprisingly big. One day in mid-September, I logged on to Church Militant. I had to blink twice to be sure, but there he was: Trey Trainor, the Trump-appointed chairman of the Federal Election Commission, being interviewed by Voris.

In the 25 minutes that followed, the two men made various points that would appall anyone not on the religious right, where it has become axiomatic that “religious liberty” entails taxpayer-funded religious activities, highly partisan behavior by the leaders of tax-exempt churches, and cries of bigotry when anyone dares to complain that such enmeshment might breach the separation of Church and state. In fact, the two men basically agreed that there is no such thing as separation of Church and state under the U.S. Constitution, and that believing otherwise is anti-Catholic. The concept, according to Trainor, is just a big misunderstanding that started when Thomas Jefferson, eager to “win political points,” scribbled the phrase in his famous 1802 letter to the Baptists of Danbury, Connecticut. And, notwithstanding the Virginia Statute for Religious Freedom and whatnot, there is not much more to the principle than that. “Jefferson,” Trainor observed portentously, “wasn’t in the country when the Constitution was written.”

To take an arguably more germane page from history, John F. Kennedy had to go on television in 1960 to reassure voters that he was not too Catholic to serve as president. Sixty years later, Biden is compelled to reassure voters that he’s Catholic enough. Rarely, in this melee, has anyone paused to ask why Biden’s religion—not his character or morality, but his religion—is an issue in a political system carefully constructed by the Founders to prevent such tests of avowed faith. But maybe someone should.

TISH DURKIN is a writer who lives in New Jersey.

The Forgotten Third Amendment Could Give Pandemic-Struck America a Way Forward


An overlooked corner of the Constitution hints at a right to be protected from infection.6:30 AM ET

Alexander Zhang
J.D./Ph.D. student in law and history at Yale University

SHUTTERSTOCK / THE ATLANTIC

Ever since state governors began implementing stay-at-home orders to contain the coronavirus pandemic, protesters have resisted such safety measures under the belief that they violate constitutionally guaranteed liberties. Proposals to mandate mask wearing have collided with allegations of First Amendment violations. Orders to close gun stores have clashed with concerns about Second Amendment freedoms. But a profound historical counter-vision to these ideas about “individual liberty” can be found in one of the most neglected and underappreciated corners of the Bill of Rights: the Third Amendment.

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“No soldier,” the amendment reads, “shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.” Federal courts have rarely invoked it, and in 2015 even rejected a Third Amendment claim against police officers’ occupation of a house. Now the subject of memes, the amendment, in the words of the legal historian Morton Horwitz, is an “interesting study in constitutional obsolescence.”

But surrendering to this senescence is a mistake. The Third Amendment might actually breathe new, constitutional life into what Ibram X. Kendi has labeled “freedom from infection.”

The Third Amendment is a remix of ideas dating back to the 11th and 12th centuries. As the lawyers William S. Fields and David T. Hardy wrote in the American Journal of Legal History, centuries of criticism against quartering had accrued in Britain before gaining traction in the empire’s colonies. After conflicts in North America, including King Philip’s War in the 1670s, New York in 1683 became the first of the colonies to provide legal protections against quartering. In the next century, colonists opposed to quartering would come to feel a desire to separate civilian life from military intrusion, a growing sense that the home was a protected private place, a hatred of standing armies, and a commitment to individual rights.

But another complaint also surfaced during the French and Indian War, which lasted from 1754 to 1763: Colonists worried that quartered soldiers might infect them with smallpox, a disease British soldiers deliberately transmitted to Native Americans.

Joshua Matz: The coronavirus is testing America's commitment to people's constitutional rights

The eventual Framers of the Constitution understood this fear. George Washington had battled smallpox himself in Barbados in 1751. The mother of Charles Cotesworth Pinckney, another signer of the Constitution, wrote of her community in 1760 that a “violent kind of smallpox rages in Charles Town that almost puts a stop to all business.” James Madison never contracted the disease, but as suggested by the Madison biographer Ralph Ketcham, a number of his extended family members likely died from smallpox in the early 1760s, when he was just a boy.

No wonder colonists fretted about the arrival of British troops. When residents of Albany, New York, learned in 1756 that some of the soldiers were carrying smallpox, they grew hostile to quartering. Soldiers arrived in Philadelphia to similar fears. In the words of one Pennsylvanian, “The small Pox was encreasing among the Soldiers to such a Degree that the whole Town would soon become a Hospital.” The governor ordered private homes to be used as quarters, and after resistance from shocked residents and the Pennsylvania Assembly, the British threatened to send soldiers to seize shelter. In response, an assembly committee that included Benjamin Franklin offered hospital space to house sick soldiers, sparing Philadelphians from the disease. Others weren’t so lucky. In 1758, Jane Webb Syer from Perth Amboy, New Jersey, was making a living by renting her house to a family, but British soldiers with smallpox transformed the house into a hospital. They ripped up her floors and doors for firewood; her tenants ran away.

Britain soon enacted two quartering laws. The Quartering Act of 1765 required colonists to pay the costs of housing soldiers, a measure that peeved Franklin. England, he argued, should “first try the effects of quartering soldiers on butchers, bakers, or other private houses [in England], and then transport the measure to America.” Britain then passed the Quartering Act of 1774, allowing officers to take “uninhabited houses, out-houses, barns, or other buildings.” The Declaration of Independence soon denounced British legislation “quartering large bodies of armed troops among us,” and places such as Maryland, Massachusetts, and New Hampshire transformed this complaint into law within the next decade.

The Revolutionary War brewed in the background, but smallpox was still a peril to soldiers. As the University of Colorado at Boulder historian Elizabeth Fenn has written, “Contagion was the defining and determining event of the era for many residents,” and with “the exception of the war itself, epidemic smallpox was the greatest upheaval to afflict the continent in these years.” Smallpox could freeze a regiment in its tracks. “Our army at Ticonderoga,” wrote the Continental Congress delegate, future Supreme Court justice, and quartering critic Samuel Chase, “consists of six thousand men, of which three thousand are in the hospital, from the small-pox and other camp disorders.” Would-be soldiers hesitated to join the army, and Virginia Governor Patrick Henry explained to Washington that the dread of smallpox was one of the obstacles. Washington understood, responding that smallpox was “more destructive to an army in the natural way, than the enemy’s sword.”


The quartering of sick troops forced civilians to come into intimate contact with disease. Soldiers sometimes paid to stay in private homes instead of hospitals, but they weren’t always welcome. One man complained that soldiers had whipped his children, killed his animals, and deprived “his wife of her Bed by plasing in one of their party whome they said was sick.” In 1777, catastrophe struck when Washington billeted soldiers in the private homes of Morristown, New Jersey. Some homeowners originally volunteered their houses, but an outbreak of smallpox among the soldiers threw the town into a flurry. Washington had to order not only his soldiers but also civilians to receive inoculations. Churches transformed into hospitals, and private homes became inoculation sites, further endangering residents. That year, a bell in the steeple of Morristown’s Presbyterian church rang dozens of times to mark the many residents’ lives lost to smallpox.

A decade later, the nation’s Founders spoke only broadly about the Third Amendment’s necessity, but they had been entangled in this history of disease and likely understood its relevance. Franklin and Washington would go on to sign the Constitution, and during the ratification process, Anti-Federalists would invoke the possibility of quartering to oppose a strong centralized government. One of these people was Chase, who had described smallpox among soldiers in Ticonderoga and now fretted that “Congress will have a right to quarter soldiers in our private houses not only in time of war, but also in time of peace.” This power, criticized former Governor Patrick Henry at the Virginia Ratifying Convention, in 1788, would be akin to Britain’s quartering of a standing army “to tyrannize, oppress, and crush us.” Madison soon proposed a Bill of Rights that included a provision against quartering, and Congress approved a version that became the Third Amendment.

Conor Friedersdorf: How to protect civil liberties in a pandemic

The final text does not mention disease, but the text of the amendment has not been an impediment to expansive (albeit controversial) interpretations in other regards. In 1965, the Court, in Griswold v. Connecticut, cited the amendment to find an implied constitutional right to privacy, and similar reasoning could be used again. Yet if the Third Amendment may have something to do with a right to be free from infection, what exactly is that right? Construed most narrowly, the amendment might merely imply a right to be free from having a specific category of people who might carry diseases forcibly pushed into one’s house without consent. But broader interpretations are possible. The amendment could be interpreted to include other governmental actors, and house could be understood expansively. The broadest interpretation might recognize a general right to be free from being forced to come into close contact with diseases. Since the Founders’ world looked tremendously different from our world today, the question is where to draw the line: how much to limit the amendment to a narrow interpretation of its text and how much to prioritize the broader rationales at its foundation.

A broad interpretation presents substantial dangers and limitations. The Supreme Court hasn’t yet decided whether the amendment applies to state and local governments. Recognition of a fundamental right to be free from forced close contact with disease vectors might shift discretion on important public-health issues from the hands of lawmakers and administrators to judges, who may be less democratically accountable or qualified to make these decisions. Perhaps too murky and open-ended to put into practice, such a right might also create a slippery slope for recognizing other “rights.” And whereas the Court in Griswold relied on multiple constitutional provisions to find an implied right to privacy, the Third Amendment on its own may not be enough to establish a right to be free from infection.

Still, even if no such right exists in an immediately useful form, the amendment’s history offers vital lessons. It reveals that disease prevention was actually built into the Constitution, furnishing judges and lawmakers today with a constitutional anchor to weigh when balancing competing societal interests. It reframes debates over shelter-in-place measures away from a battle between “individual” versus “community” freedom, illustrating how protection from disease was once understood to also secure individual liberty. Most of all, it challenges us to explore how public-health goals might have been hidden in other possible crannies of the Constitution, an urgent task in this particular, bleak year.

This story is part of the project “The Battle for the Constitution,” in partnership with the National Constitution Center.

ALEXANDER ZHANG is a J.D./Ph.D. student in law and history at Yale University.

Dog trainer files lawsuit in Wisconsin blaming alt-right conspiracy for increasing fear, suppressing travel, hurting business

Bruce Vielmetti
Milwaukee Journal Sentinel




A New Jersey dog trainer has turned to Wisconsin's federal court to sue elements of what his lawsuit describes as a vast alt-right conspiracy to violate his civil rights, and those of many others fearful of the groups' armed intimidation and past violence.

John Bellocchio and his business, Fetch & More, filed the action in federal court in Milwaukee, saying many of the defendants — including those connected to Kenosha unrest in August and others charged last week with plotting to kidnap Michigan's governor — have ties to eastern Wisconsin.  

More: Gretchen Whitmer kidnapping conspiracy wasn't the first anti-government plot with Wisconsin ties

His attorney is Jennifer Sirrine of Massachusetts, who sued some of the same defendants, along with Facebook, in another Wisconsin federal case last month, but who was forced off the case by co-counsel recently.

The 27-page civil complaint lays out a mashup of histories of groups like the Proud Boys, events in Kenosha and Charlottesville, Va., and roles of some individuals as reported in news coverage to explain the conspiracy it says is destroying Bellocchio's nationwide business as it violates both his and his clients' civil rights.

"Motivated by racist, xenophobic, and misogynistic beliefs, their overt acts in furtherance of the conspiracy deprived Mr. Bellocchio of his right to be free from violence, intimidation, and harassment, as well as prevented him from utilizing his right of freedom to travel," the complaint reads.

"This violence is rooted in racial animus — the anti-Semitism and hatred towards Black Americans, in particular, is well documented — sentiments they couch in language such as 'Western Values' and 'Make America Great Again.' This is, of course, in addition to the vitriolic misogyny and hatred of anyone who is not a straight, white, cisgender man."


Named as defendants in the suit are The Kenosha Guard, founder Kevin Mathewson; Kyle Rittenhouse; Ryan Balch; Boogaloo Bois; Wolverine Watchmen; Brian Higgins; The Proud Boys; Gavin McInnes; Censored.TV; Brad and Eric Doe, supposed leaders of Proud Boys' Wisconsin chapter; and Florida residents Enrique Tarrio, described as chairman of the Proud Boys, and Augustus Sol Invictus, "commander of the Fraternal Order of Alt-Knights," a military offshoot of the Proud Boys.

Mathewson posted a notice on the Kenosha Guard's Facebook page calling for people to come to Kenosha to defend property. Balch, of Jackson, and Rittenhouse, 17, of Antioch, Illinois, were in Kenosha the night of Aug. 25, armed with rifles, before Rittenhouse fatally shot two people and wounded a third.

Rittenhouse faces homicide charges in the incident, but is fighting extradition from Illinois.
Higgins, 51, is a Wisconsin Dells man charged in Michigan with helping members of Wolverine Watchmen do surveillance on Gov. Gretchen Whitmer's vacation home in September, as part of a charged plot to kidnap her and take her to Wisconsin for a trial.

The suit describes McInnes as the founder of the Proud Boys and owner of CENSORED.TV.

U.S. weighs labeling leading human rights groups ‘anti-Semitic’

Secretary of State Mike Pompeo is pushing for the declaration, according to a congressional aide with contacts inside the State Department.


Amnesty International USA’s interim executive director said any allegations of anti-Semitism were “baseless.” | Dan Kitwood/Getty Images)


By NAHAL TOOSI POLITICO
10/21/2020 03:

The Trump administration is considering declaring that several prominent international NGOs — including Amnesty International, Human Rights Watch and Oxfam — are anti-Semitic and that governments should not support them, two people familiar with the issue said.

The proposed declaration could come from the State Department as soon as this week. If the declaration happens, it is likely to cause an uproar among civil society groups and might spur litigation. Critics of the possible move also worry it could lead other governments to further crack down on such groups. The groups named, meanwhile, deny any allegations that they are anti-Semitic.

Secretary of State Mike Pompeo is pushing for the declaration, according to a congressional aide with contacts inside the State Department. Pompeo is eyeing a future presidential run and has taken a number of steps to gain favor with pro-Israel and evangelical voters who make up a key part of Trump’s electoral base.

But the proposal is drawing opposition from career State Department employees. Among the opponents are department lawyers who warn that it is on shaky grounds due to free speech concerns, could lead to lawsuits and might even lack a proper administrative legal basis.

Spokespersons for the State Department did not immediately reply to a request for comment on Wednesday. A former State Department official with contacts on the inside confirmed the basics of the declaration and said it could be released shortly.

The declaration is expected to take the form of a report from the office of Elan Carr, the U.S. special envoy to monitor and combat anti-Semitism. The report would mention organizations including Oxfam, Human Rights Watch and Amnesty International. It would declare that it is U.S. policy not to support such groups, including financially, and urge other governments to cease their support.

The report would cite such groups’ alleged or perceived support for the Boycott, Divestment and Sanctions movement, which has targeted Israel over its construction of settlements on land Palestinians claim for a future state.

It’s also expected to point to reports and press statements such groups have released about the impact of Israeli settlements, as well as their involvement or perceived support for a United Nations database of businesses that operate in disputed territories.

The material impact on such organizations is not immediately clear, and it could depend on which branch or division of a group is counted. Human Rights Watch and Amnesty International USA, for instance, do not take U.S. government funding. Oxfam America does not take U.S. funding, but its affiliates overseas may take some U.S. dollars depending on the circumstances.

The groups named also do not all officially support the BDS movement or take a position on it. But they have all been critical to one degree or another of Israel’s settlement policies and its treatment of the Palestinians, and pro-Israel organizations have claimed that the groups’ actions nonetheless constitute support for the movement and are thus anti-Semitic.

Officials with the three groups were unaware of the potential State Department declaration until contacted by POLITICO.

Bob Goodfellow, Amnesty International USA’s interim executive director, said any allegations of anti-Semitism were “baseless.”

“AIUSA is deeply committed to fighting anti-Semitism and all forms of hate worldwide, and will continue to protect people wherever justice, freedom, truth, and dignity are denied,” he said in a statement. “We vigorously contest any allegation of anti-Semitism, and look forward to addressing the State Department’s attacks in full.”


Noah Gottschalk, Oxfam America’s global policy lead, also denied as “false” and “offensive” allegations of anti-Semitism.

“Oxfam does not support BDS or call for the boycott of Israel or any other country,” Gottschalk said. “Oxfam and our Israeli and Palestinian partners have worked on the ground for decades to promote human rights and provide lifesaving support for Israeli and Palestinian communities. We stand by our long history of work protecting the lives, human rights, and futures of all Israelis and Palestinians.”

Human Rights Watch official Eric Goldstein noted that the Trump administration often relies on the work of groups like his own to validate its own policy positions.

“We fight discrimination in all forms, including anti-Semitism,” Goldstein said in a statement. “Criticizing government policy is not the same as attacking a specific group of people. For example, our critiques of U.S. government policy do not make us anti-American.“

The draft State Department declaration is drawing much of its information from NGO Monitor, a pro-Israel site that tracks the activities of human rights and other organizations and often accuses them of being anti-Israel.

Last year, Israel expelled Omar Shakir, a Human Rights Watch researcher it accused of supporting the BDS movement. Human Rights Watch and Shakir, a U.S. citizen, denied the allegation.

A spokesman for the Israeli Embassy did not immediately offer comment Wednesday when asked about the potential U.S. declaration.

ALTRIGHT

Friedman: US position is never evacuate settlements
“When we feel we've exhausted these efforts, of course we will help Israel formalize its boundaries, including communities in Judea and Samaria.”

By LAHAV HARKOV
OCTOBER 21, 2020 22:17


US Ambassador to Israel David M. Friedman
(photo credit: MARC ISRAEL SELLEM)
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The American position is that West Bank settlements should remain in place permanently and Israel should apply sovereignty to them at a later date, US Ambassador David Friedman said on Wednesday.
“The position of the United States is that Jewish communities in Judea and Samaria will never be evacuated. We will never ask any community in Judea and Samaria to ever disband,” Friedman said in a Kohelet Policy Forum conference on the Abraham Accords, conducted online with the Shiloh Forum and Israel Hayom.

“We believe [that] in [the] long run, it is in Israel’s interest and America’s interest to extend [Israeli] sovereignty over these communities.”The Trump administration’s plan, should he be reelected, is “to put all our efforts in the near future in diplomatic efforts to make Israel as safe, secure and prosperous as the nations of the region and reduce that threat level as much as possible” by encouraging more countries to normalize ties with Israel.
“When we feel we’ve exhausted these efforts, of course we will help Israel formalize its boundaries, including communities in Judea and Samaria,” Friedman, who has voiced his personal support for settlements, said.
Friedman said he has “no doubt” that more nations in the Arab League will make peace with Israel, saying the whole region is made up of potential normalization partners.
“Over time, even the greatest of Israel’s enemies see the trends, see the way the wind is blowing, and will be left with a tough choice, to be on the wrong side of history or join the circle of peace,” he stated.
Asked about Saudi Arabia, Friedman said not to discount Riyadh’s decision to allow flights between Israel and the UAE and Bahrain over its airspace, but also said the Saudis have “to go through this process at their own pace.”
Friedman described the timeline of how the US moved from trying to implement US President Donald Trump’s peace plan, which would allow Israel to extend its laws to 30% of Judea and Samaria and have a Palestinian state be established in the rest of it, to prioritizing peace between Israel and Arab countries.
The coronavirus pandemic grew serious in Israel and the US over a month after the peace plan was presented in late January, making diplomatic engagement more difficult, Friedman said.But the ambassador also put the onus for delays in getting the Trump plan off the ground on Defense Minister Benny Gantz and Foreign Minister Gabi Ashkenazi, saying they “took a very negative view on the sovereignty issue, at least in isolation.“We were struggling with those issues to bring some consensus in the position within the government of Israel,” Friedman recounted.“As all that was happening, we saw an opportunity... for Israel to make peace with the [United Arab] Emirates and also saw additional countries likely to follow.”
At that point, the Trump administration decided to “take a step back” from the peace plan, because peace with the UAE was an immediate opportunity, while “there are Israeli flags flying in Hebron, Shiloh, Gush Etzion, Eli, and under our plan they will be flying there forever, so it is not an immediate concern.”
Friedman pointed out that in the August 15 announcement of ties between Israel and the UAE facilitated by Trump, it said that sovereignty plans were “suspended.”
“Not canceled or abandoned, suspended,” he emphasized. “To suspend is by definition temporary.”
NETANYAHU ALSO addressed the Kohelet Policy Forum conference, saying “everyone can see the fruits of this peace accord” with the UAE.
“The UAE committed to bringing massive investments to Israel, hundreds of millions of shekels,” he said. “It’s already happening and it will happen even more.”
Netanyahu quoted from his own book published 25 years ago, A Place Among the Nations, in which he predicted that countries would seek out Israel for peace and diplomatic relations if the country is strong.
“In our region and in the world, the strong is appreciated, not the weak,” he said. “Some say to get peace we must retreat to indefensible borders, put our security in the hands of others and uproot dozens of communities, if not more. Global superpowers said concessions will bring peace, and peace will bring security. This dangerous plan, if it were to happen, would make Israel vulnerable and weak.”
Peace with the UAE “broke the Palestinian veto,” Netanyahu said, in that it established ties with Israel without there being peace with the Palestinians first.
“I hope the international community learned their lesson. Whoever says peace depends on the Palestinian veto will wait an entire generation for peace to happen,” the prime minister warned.
He pointed out that Palestinian Authority President Mahmoud Abbas considered suing Great Britain over the Balfour Declaration calling to establish a Jewish national home, which was written 103 years ago.
Still, Netanyahu said he hopes “progress and breakthroughs with the Arab world will eventually bring about a change in the Palestinians’ position. I hope they will recognize Israel as the state of the Jewish people and our right to exist in our homeland.“Until that day arrives, I will take care of Israel’s security and strong economy, and will continue making peace with whoever wants real peace with us,” he vowed.

Head of Federal Election Commission calls separation of church and state a 'fallacy' and 2020 election a 'spiritual war'
Sep 18, 2020
by Jack Jenkins, Religion News Service
Politics  

Archbishop Paul D. Etienne of Seattle, center, and other prelates pray during the fall general assembly of the U.S. Conference of Catholic Bishops in Baltimore Nov. 12, 2019. FEC Chairman James E. "Trey" Trainor III accused bishops of "hiding behind" their nonprofit status and avoiding political matters, calling the separation of church and state a "fallacy." (CNS/Bob Roller)

WASHINGTON — The head of the Federal Election Commission chastised Catholic bishops during a pair of interviews this week, accusing church hierarchy of "hiding behind" their nonprofit status and declaring that this year's U.S. election amounts to a "spiritual war" that threatens the country's "Christian moral principles."

FEC Chairman James E. "Trey" Trainor III made the remarks during an interview released on Sept. 16 by Church Militant, a controversial conservative Catholic media outlet, and in a separate phone interview with Religion News Service.

Trainor, who is Catholic and attends Mass weekly, was asked by Church Militant founder Michael Voris about a priest who recently published a viral video in which the cleric declares that no Catholic can be a Democrat. Voris pressed Trainor about news that, in response to the video, a bishop plans to attempt "fraternal correction" of the priest, with the hierarch arguing the priest has inflicted a "wound" upon the church.

"I don't think a bishop has the right to tell a priest that they can't come out and speak," the FEC chairman said.

Trainor suggested the bishops avoid political matters because they, like many faith-based groups that offer social services, receive funds from the federal government. He described the arrangement as "almost a payoff" by the government to encourage faith groups to stay silent or neutral.

When RNS followed up with the chairman to ask whether he believed Catholic bishops shy away from endorsing candidates because of financial ties with the federal government, he responded, "I do — I believe that to be the case."

The U.S. Conference of Catholic Bishops declined to comment on Trainor's remarks.

Trainor, a Republican who was nominated to the FEC by President Donald Trump and confirmed by the U.S. Senate in May 2020, also told Voris that because of a 2017 executive order signed by Trump, churches are free to endorse political candidates.

"Especially with this executive order that President Trump signed, the churches can absolutely engage in that activity," said Trainor, a lawyer who previously represented the Texas Republican Party and two presidential campaigns.

"The bishops are using their nonprofit status as a shield to hide behind from having to make a decision about who to support, and to come out publicly. … [Bishops] say we should have an informed conscience when we go vote. But they never really take that next step and say, 'Here's who meets the criteria.'"

But FEC Commissioner Ellen L. Weintraub disputed Trainor's claim that Trump's executive order allows faith groups to ignore the so-called Johnson Amendment, a provision of U.S. tax law that bars nonprofits from endorsing political candidates.

"My colleague is not correct," Weintraub, a Democrat who has chaired the commission three times since joining it in 2002, told RNS in a statement.

"Though the president's executive order directs law enforcement authorities to not enforce the Johnson Amendment, that statute remains the law of the land and cannot be undone with an executive order. Anyone tempted to violate the statute should keep in mind that a future administration could well decide to enforce the law as Congress wrote it," she said.

Trump himself claimed at a 2019 National Day of Prayer service that his executive order "got rid of" the Johnson Amendment. But in his interview with RNS, Trainor clarified that his remarks to Church Militant were meant to highlight the reality that the law is likely to be unenforced.

"Clearly it didn't get rid of the Johnson Amendment," Trainor said, referring to the 2017 executive order. "The Johnson Amendment is still on the books, but with lack of enforcement authority by the executive agency, it's a law that's not going to be enforced."


Cardinal Joseph W. Tobin of Newark, N.J., is seen at the Cathedral Basilica of the Sacred Heart during the Mass of ordination of deacons July 11, 2020. Tobin remarked on Sept. 15 that "I think that a person in good conscience could vote for Mr. [Joe] Biden." (CNS/Courtesy Steve Hockstein via Archdiocese of Newark)

He pointed to examples of when church leaders have gotten political, such as when Cardinal Joseph Tobin of Newark, New Jersey, remarked on Sept. 15 that "I think that a person in good conscience could vote for Mr. [Joe] Biden." Tobin then added, "I, frankly, in my own way of thinking have a more difficult time with the other option."

Tobin has since insisted his remark was not an endorsement, but Trainor argued otherwise, saying it's "fantastic" that a cardinal would publicly back a candidate.

Asked whether he saw a difference between Tobin suggesting a Catholic can vote for Biden and a priest declaring a Catholic cannot be a Democrat, Trainor said no.

"Unless the pope is going to come down and fraternally correct Cardinal Tobin, I absolutely don't see a difference," he said.

Trainor contended the separation of church and state is "a fallacy," because "every person who comes to the public square has to have an informed conscience in one way or another, and it's either informed by their religion, their tradition or something."

The chairman also agreed with Voris that this year's election amounts to a "spiritual war." Trainor expanded on that position in his interview with RNS.

"It was [John] Adams that said the Constitution presupposes a Christian moral people, which means you have to have that underlying principle in order for the Constitution to function and work properly," Tobin said.

"What we see going on around the country is complete anarchy in places where the rule of law has been completely abrogated. So it is a spiritual war in that it is striking at the underlying foundations of our constitutional republic. It's getting rid of the Christian moral principles that are the basis of the foundation of the country" he said.

The origin of the quotation Trainor attributed to Adams was not immediately clear. Although the second president of the United States did declare in a 1798 speech that "Our Constitution was made only for a moral and religious People," he did not stipulate that religious people must be Christian.

Weintraub rejected her colleague's assertion.

"Our elections are not spiritual wars," she said. "They are not wars at all. Wars have enemies; elections have opponents. We're all Americans and we're all in this together."

She added: "Regarding the separation of church and state, rather than misquoting John Adams' Oct. 11, 1798, letter to the Massachusetts Militia, a better measure of the founders' views can be taken from the Senate's ratifying and President Adams' signing, the year before, of the Treaty with Tripoli, which stated that 'the Government of the United States of America is not, in any sense, founded on the Christian religion.'"

Trainor invoked the idea of a Christian nation in his conversation with Voris as well, during which he encouraged lay Catholics to discuss with fellow parishioners during Mass whom they should vote for.

"I think that would go a long way toward moving the country back toward a Christian moral foundation," he said in the interview.

When RNS asked Trainor whether he believed the U.S. should be a Christian nation, the chairman clarified that "obviously the country is open to all faiths."

"I think it's the teachings of Christianity that are important and those same teachings are found in Judaism," he said. "Those same teachings are found in Islam. Those same teachings are found in most monotheistic religions."

Trainor insisted to Voris that he was speaking "privately" and not as FEC chairman, but answered several questions about the upcoming election. For example, he said he does not expect a protracted legal debate similar to what occurred in the 2000 election, saying, "I don't think that this election is going to be that close."

Trainor later clarified with RNS that he expected the winner of the presidential election to win by a significant margin, but did not know which candidate would claim victory.

During the Voris interview, Trainor also said that mass distribution of mail-in ballots, which allows people to avoid going to the polls out of fear of potential infection from COVID-19, will lead to "mass confusion."

Weintraub again disagreed.

"The entire planet has been in a pretty high state of confusion since March or so," she said. "Election officials throughout the country, both Republicans and Democrats, are working hard to provide the best, most accurate, and safest elections possible in this challenging and confusing year. One tool they are using to prevent a chaotic election is expanding opportunities to vote by mail."

Poll: White evangelicals are religious outliers on every issue of concern to voters
Oct 20, 2020
by Yonat Shimron, Religion News Service
Politics

This article appears in the Election 2020 feature series. View the full series.

President Donald Trump arrives at a campaign rally at Des Moines International Airport, Wednesday, Oct. 14, 2020, in Des Moines, Iowa. (AP/Charlie Neibergall)


As they head to the polls, nearly all religious Americans say the coronavirus is the most critical issue facing the country, a new study by PRRI shows. But there's one notable exception: white evangelicals.

Only 35% of white evangelicals said the coronavirus is of critical concern, PRRI's 11th annual American Values Survey, released Oct. 19, shows. Among this group, abortion and terrorism top the list of critical concerns. No other religious group identified abortion among its top three concerns.

On this and other issues, white evangelicals are outliers among U.S. religious groups.

"White evangelical Protestants do seem to be out on a limb on their policy views and views of Trump," said Natalie Jackson, PRRI's director of research.

"It's more a fact of other types of Christians — mainline Protestants and Catholics — shifting away toward a more centrist outlook and increasingly leaving white evangelicals out on their own as the one religious group that very much supports Trump and is locked in with their party ID."

The study, conducted in September among 2,538 U.S. adults, shows that overall, 35% of Americans approve of how President Donald Trump has handled the coronavirus pandemic, while 65% disapprove.

But white evangelicals approve of the job Trump is doing at a rate of 76%, as compared to 52% of white mainline Protestants and 49% of white Catholics.

Heading into the 2020 election, their support for the president remains steadfast.

Majorities of every other religious group say the president has damaged the dignity of the office of president. But only 36% of white evangelicals believe that. And among white evangelicals who identify as Republicans, only 20% say he's damaged the dignity of the office.


“Top Three Crucial Issues, by Religious Affiliation” (Graphic courtesy of PRRI)


White evangelicals are also the only major religious group to say the country is moving in the right direction, with 59% agreeing. By comparison, only 40% of white mainline Protestants, 39% of white Catholics, 40% of Hispanic Protestants and 28% of Hispanic Catholics said the country is headed in the right direction.

That assessment drops even further among non-Christian and unaffiliated Americans. Only 24% of non-Christian religious Americans and 18% of religiously unaffiliated Americans say the country is headed in the right direction.

The one area where religious groups appeared to agree was regarding Trump's behavior in comparison with his predecessors. A majority of white evangelicals (55%) said they wish Trump behaved more like his predecessors, compared to 66% each of white mainline Protestants and white Catholics, and 67% of Hispanic Protestants. Seventy-one percent of Hispanic Catholics and non-Christian religious Americans wished Trump's behavior was more in line with his predecessors.

On other issues, such as whether God has granted the U.S. a special role in history, the divisions surfaced once again: A strong majority (71%) of white evangelicals said the U.S. plays a special role — more than any other religious group. Only 35% of white Catholics, 32% of white mainline Protestants, and 15% of religiously unaffiliated Americans agree with the statement about the U.S.' special role. But even among evangelicals, there was a notable decline in support for the statement from four years ago, when 82% of white evangelicals said the same.

The survey also found there were no religious groups in which a majority agreed the U.S. sets a good moral example for the world. Only 33% of white Catholics, 29% of white mainline Protestants and 28% of white evangelicals agreed. Black Protestants (14%) and religiously unaffiliated Americans (10%) were even less likely to agree America sets a good moral example.

The margin of error for the survey was plus or minus 2.6 percentage points at the 95% level of confidence.

Climate Change Denialism Poses a National Security Threat

by Mark Nevitt

September 20, 2019

In a forthcoming article in the Harvard Environmental Law Review, I argue that climate change is one of the most pressing national security issues facing the United States and the world. Climate change is not simply an environmental issue. It also accelerates existing national security threats, acting as both a threat accelerant and catalyst for conflict. And the peer-reviewed science is now refined as to be essentially irrefutable. Human activity is causing climate change and recent advances in climate attribution science showcase the causal linkage between extreme weather events and climactic change. Climate change will increase the intensity and frequency of droughts, wildfires, and extreme weather, serving as the defining factor of our “climate-security century.” Denying these widespread advances in climate science undermines national security, and we shouldn’t be afraid to say so.

Just as climate change is destabilizing the physical environment, it is also beginning to destabilize the legal landscape while bringing together different areas of law in new and surprising ways. We need innovative legal and policy solutions to tackle the “super wicked” problems caused by climate change. In what follows, I highlight three interrelated climate-security questions that are in need of answers.

How does Climate Security Affect Climate Mitigation Efforts?

For starters, climate change is forcing us to look at the relationship between environmental law and national security law with fresh eyes. Historically, environmental law has had somewhat of an adversarial relationship with national security law. For example, numerous environmental laws include exemptions for military activities when the president determines that they are in the “national security interest.” This includes the Clean Air Act, the key statute that regulates greenhouse gas (GHG) emissions within the United States.

But what if excessive GHG emissions are the cause of the underlying national security threat — a point made all-too clear by the most recent National Climate Assessment? In the climate-security context, what was once in conflict may well be aligned as we look to preserve our common future from all threats, however defined. Indeed, climate change demands greater environmental protections to reduce GHG emissions. And we already know that the U.S. military is an enormous emitter of carbon and other GHG emissions. In fact, Brown University’s Costs of War Project recently estimated that the U.S. Department of Defense emitted more greenhouse gas emissions into the atmosphere than many industrialized nations, such as Sweden and Denmark. As we think broadly about future climate mitigation strategies, we must take into account all GHG emissions, regardless of their source.

Is Climate Change a National Emergency?

Paradoxically, President Donald Trump’s controversial declaration of a national emergency at the southern border may have given climate change activists a possible tool to address climate change. As the Trump emergency border declaration painfully demonstrated, what constitutes an “emergency” under the 1976 National Emergencies Act is not well-defined in statute, and Trump is testing that boundary. Further, the Supreme Court will afford great deference to the president when making an emergency determination. The outer limits of what constitutes an emergency remain to be seen by the Supreme Court under Chief Justice John Roberts — could a climate emergency count?

Obviously, any climate emergency discussion would require a change in who occupies the Oval Office. Nevertheless, if a future president declared climate change a national emergency, she could potentially invoke already-delegated powers at her disposal to slow the rate of domestic fossil fuel extraction and lower our collective GHG emissions.

To be clear, we need domestic climate change legislation that prices carbon and all GHG emissions appropriately. This would fully honor the legislative process and would afford the highest amount of democratic legitimacy. Whether this is a carbon tax or a cap-and-trade model is less important; what matters is that we actually pay carbon’s true cost. Every day that goes by without meaningful climate action amounts to a de facto climate tax that is “hidden, unfair, and ever-increasing.” Yet in the absence of any climate political action in the face of overwhelming science, what are we to do?

In the face climate intransigence, the “break glass in case of emergency” approach will be an increasingly appealing option to a growing number of activists and some politicians. Indeed, there is already a growing segment of activists and politicians who are eager for any action on climate change in whatever form it may take. And so, they are embracing “emergency language” in their approach. For example, while it does not actuate legal authorities, Sen. Bernie Sanders (I-Vt.) currently has a Senate Resolution declaring climate change a national emergency, in the hopes of raising awareness on the issue. Could this be setting the stage for a future climate emergency declaration under the National Emergencies Act?

What are the Opportunities and Risks in Conceptualizing Climate Change as a National Security Issue?

National security, military, and intelligence professionals are solution-oriented information brokers who bring credibility and expertise to an increasingly complex climate discussion. Within the national security community, there is already a deep culture of planning that is designed to counter emerging threats. This security planning mindset is tailor-made to find workable solutions and tackle the “known-unknowns” inherent to the problem of climate change. We know that climate change is transforming our physical environment and the military’s operational environment in fundamental ways. We also know that climate change will exacerbate existing environmental stressors and the developing world will be most affected by climate change. But we don’t know with precision how, exactly, the melting ice caps will impact sea-level rise, nor do we know where food, drought, and water insecurity will spark the next conflict or refugee crisis. Nevertheless, we must plan accordingly with the best information, intelligence, and science before us, focusing on the most vulnerable parts of the nation and the world.

But having a broad conception of what amounts to a national security concern comes with its own potential pitfalls that we must not dismiss. The current president has been all too quick to broaden his own definition of what constitutes national security to encompass trade, immigration, and other issues. In doing so, national security can serve as a blunt instrument wielded by the executive branch, bypassing the democratic process. Indeed, recall that Secretary of Energy Rick Perry invoked a national security rationale in defending the Trump administration’s decision to continue to operate coal-fired power plants. Put simply, we must be cognizant of not having too capacious a definition of what constitutes “national security.” If everything is national security, nothing is national security. And this could continue the trend of centralized decision-making in the executive branch at the expense of the legislative process.

So, Where Do We Go from Here?

The answers to these three questions will become more important over time, particularly if our current climate paralysis continues. As my colleague Cary Coglianese has aptly described, climate change is a “collective action problem on steroids.” The stakes couldn’t be higher, yet the United States has been absent on both the international and domestic climate stage, stepping away from the Paris Climate Accord and largely ignoring the alarm bells sounded by the scientific and national security communities for years.

The small silver lining: Climate change may well be serving an important purpose. I argue in the Harvard Environmental Law Review that climate change sheds light on shared values between the environmental and national security communities that have always existed since our nation’s founding, albeit below the surface. After all, both environmentalists and national security professionals ultimately seek to safeguard the security, health, and welfare of every citizen. In its most fundamental ways, what is good for the environment is good for national security.

Finally, it is readily apparent that the costs for climate denialism are simply too costly to pay anymore. Both parties must acknowledge that climate change is fundamentally a scientific problem in need of a political solution. Not vice versa. As Greta Thunberg leads a worldwide climate strike today and the world prepares for a historic Climate Week in New York City next week, we must be clear-eyed about climate change’s underlying threats and what an increasingly diverse group of youthful crusaders, scientists, and national security professionals scientific are telling us.

Image: Teenagers and students take part in a climate protest outside the White House in Washington on September 13, 2019. Swedish environment activist Greta Thunberg, 16, has spurred teenagers and students around the world to strike from school every Friday under the rallying cry “Fridays for future” to call on adults to act now to save the planet. Photo by Nicholas Kamm/AFP/Getty Images