Charlie Savage

In responses to a New York Times survey about executive power, the Democrats — along with two Republicans mounting primary challenges to Trump — envisioned a rebuke of his term by enshrining into law previous norms of presidential self-restraint.

Many called for new laws that would require presidents to disclose their tax returns and to divest from significant assets; bar them from appointing close relatives to White House positions; and constrain their abilities to award security clearances and to fire special prosecutors investigating their administration, among other potential reforms.

The survey is the first and most detailed collection of the candidates’ views on a set of issues that they are rarely asked about, yet often prove crucial to the outcome of political fights: the scope and limits of a president’s power to act unilaterally or even in defiance of statutes.

The survey — which elicited answers from 15 Democrats, including all in the top polling tier and 8 of the 10 in Thursday’s debate — also focused on recurring constitutional disputes that have arisen under recent presidents of both parties on matters including secrecy and war.

“The American people should fully know how candidates will use the power of the presidency,” Sen. Elizabeth Warren wrote, echoing other candidates who agreed that voters should know their views before deciding whom to entrust with the power of the White House.

Presidents have “a responsibility to make sure excess power is not used to start endless wars, attack the privacy of Americans, or undermine the democratic values of our country,” she added.

But though the candidates “seem committed to reforming the presidency,” they might have second thoughts from the vantage point of the Oval Office, said Jack Goldsmith, a Harvard law professor and former senior Justice Department official in the George W. Bush administration who reviewed their responses.

“The next Democratic president will happily accept new rules on tax releases, but will have a harder time accepting constraints on security clearances and emergency or war powers,” he said. “Institutional prerogative often defeats prior reformist pledges.”

Indeed, former Vice President Joe Biden expressed a more expansive view of presidential war powers after eight years in the Obama White House than he did in 2007 during an earlier run for president.

The 2020 candidates agreed on some issues, including that Bush was wrong to claim after the Sept. 11 attacks that he could override surveillance and anti-torture laws because he was the commander in chief.

But they diverged about others, like whether President Barack Obama’s invocation of the same power was legitimate. Obama used similar reasoning to disregard a requirement that he give Congress 30 days’ notice before transferring Guantánamo Bay detainees as part of the 2014 Bowe Bergdahl prisoner swap.

Sen. Kamala Harris, for example, wrote that while a president can lawfully override or bypass statutes that are clearly unconstitutional, she thought the detainee transfer law — along with the surveillance and anti-torture laws — was a constitutional limit that presidents must obey.

“The executive branch is not above the law,” she wrote, adding, “As president, I would respect these laws.”

By contrast, Biden defended the decision by Obama — then his boss — to immediately carry out the exchange after the deal was struck instead of waiting 30 days. Obama administration officials argued that a delay would have endangered the captive soldier’s life.

“The transfer of detainees from Guantánamo was an exchange of prisoners in a conflict, and therefore a valid exercise of the commander-in-chief power,” Biden wrote.

He participated in an earlier iteration of the survey as a senator seeking the 2008 presidential nomination, and his new answers reflected the understanding of executive authority that he gained from watching close up as Obama wielded it.

In late 2007, for example, Biden offered a restrictive view of when presidents may unilaterally direct the military to attack other countries, writing: “The Constitution is clear: Except in response to an attack or the imminent threat of attack, only Congress may authorize war and the use of force.”

But in the new survey, Biden called it “well established” that presidents may launch limited strikes “without prior congressional approval when those operations serve important U.S. interests.”

That legal rationale for ordering limited attacks without congressional approval echoed the Obama administration’s stance during the NATO intervention in Libya in 2011. But the bombing campaign violated a limit on executive war-making powers that both Obama and Biden had said they would respect in the 2007 candidate survey.

Importantly, however, Biden said both then and now that any bombing of Iranian nuclear sites — a prospect in which the scope of unilateral presidential war-making authority has repeatedly come up — would require prior authorization from Congress because it would carry too much risk of escalation into a major war.

Still, several of Biden’s rivals took a more constrained view, suggesting that a rationale of serving American “interests” is not enough to justify even limited strikes without Congress.

“In situations where the use of force is necessary, absent an imminent threat to our national security, I will take that case to Congress and the American people to seek authorization,” former Rep. Beto O’Rourke wrote.

Most candidates left the door open to using presidential signing statements, when approving bills, to claim a right to bypass provisions they see as unconstitutionally infringing on executive powers. But the answers submitted by the campaign of Sen. Bernie Sanders — which were written in third person — pledged he would never use them.

“Signing statements circumvent the will of Congress and have no constitutional or legal legitimacy,” the response said. “As president, Bernie would not issue signing statements.”

The survey revealed broader disagreements about the wisdom of several other potential reforms raised by Trump’s record. Significant numbers of candidates stood on both sides of ideas like curtailing future presidents’ latitude to invoke emergency powers and to choose acting agency heads when temporarily filling vacancies.

But the candidates were largely united in rejecting the view of Trump’s legal team, including Attorney General William Barr, that obstruction of justice laws do not apply to presidents who abuse their official powers to interfere with investigations for corrupt reasons.

Many also expressed skepticism of the Justice Department’s view that sitting presidents are immune from indictment, which bound the special counsel, Robert Mueller, as he weighed Trump’s attempts to obstruct the Russia investigation. Most said they would sign a law pausing the statute of limitations for offenses by presidents, ensuring that they can still be prosecuted after leaving office.

But they split over what else to do about it. Several said they would direct the department’s Office of Legal Counsel to rescind its opinion, while others sidestepped that question. Mayor Pete Buttigieg of South Bend, Indiana, argued that it would interfere with Justice Department independence for a president to simply direct the office, commonly called OLC, to change its legal interpretation.

“Because the integrity of the Justice Department is critical to the rule of law, I do not think it would be appropriate for any president to dictate the legal conclusions that OLC may issue or retract,” Buttigieg wrote.

After The Times began the survey, Protect Democracy, a nonpartisan group of former officials seeking to prevent a decline “into a more authoritarian form of government,” lobbied the candidates to participate. Justin Florence, a former Obama White House lawyer and the group’s co-founder, praised those who answered the questions.

“With democracy in retreat and autocratic politics on the rise here and around the world, this survey provides critical insights into how each candidate understands the limits on the immense powers they’re seeking,” Florence said.

Several prominent Democratic candidates have not answered the questions. They include New York City Mayor Bill de Blasio, who issued a general statement; Julian Castro, the former Housing and Urban Development secretary; former Rep. John Delaney; and businessmen Tom Steyer and Andrew Yang.

This article originally appeared in

Presidential Power Must Be Curbed After Trump, 2020 Candidates Say

WASHINGTON — Democratic presidential candidates broadly agree that President Donald Trump has shaken the presidency loose from its constitutional limits and say that the White House needs major new legal curbs, foreshadowing a potential era of reform akin to the post-Watergate period if any of them wins next year’s election.

Assange vaulted to global fame in 2010, when his anti-secrecy website began posting archives of secret U.S. military and diplomatic documents leaked by Chelsea Manning, an Army intelligence analyst who had downloaded them from a classified computer network she worked on at her outpost in Iraq. His image became more complicated in 2016, when WikiLeaks published stolen Democratic emails that the Russian government had hacked as part of its covert operation to damage Hillary Clinton and help Donald Trump win the presidency.

Throughout that saga, national security and law enforcement officials in both the Obama and the Trump administrations have weighed whether they could charge Assange with a crime. That debate has raised concerns by press freedom advocates about what any precedent established by his case would mean for First Amendment rights and the future of investigative journalism in the United States.

Why does the case against Assange raise concerns about press freedoms?

Assange is not a traditional journalist, but most of what he does at WikiLeaks is difficult to distinguish in a legally meaningful way from what traditional news organizations, like The New York Times, do every day: seek out and publish information that officials would prefer to be kept secret, including classified national security matters, and take steps to protect the confidentiality of sources.

In recent years, prosecutors have begun far more regularly charging officials with leaking information to reporters under the Espionage Act, a World War I-era law. It criminalizes the disclosure of potentially damaging national security secrets to someone not authorized to receive them. On its face, the Espionage Act could also be used to prosecute reporters who publish government secrets.

While many legal scholars believe that prosecuting reporters for doing their jobs would violate the First Amendment, the prospect has never been tested in court because the government has never charged a journalist under that law. The rumblings about prosecuting Assange raised the possibility that prosecutors could violate that norm and try to establish that publishing government secrets can be a crime.

Was Assange charged with publishing secrets?

No. When the indictment was unsealed Thursday, it showed that a grand jury had instead charged Assange with conspiring with Manning to illegally hack a government computer to obtain national security information.

Specifically, the indictment said, on March 8, 2010, Assange agreed to help Manning try to crack part of an encoded password that would have let her gain access to more information than her own account provided. Prosecutors also cited a chat log from two days later that they said indicated Assange had taken steps to act on that conspiracy: He said he had “no luck so far” in trying to crack the password.

So can people concerned about press freedoms rest easy?

Not quite. For now, the case significantly reduces such concerns because it is outside traditional investigative journalism to help sources try to break passcodes so they can illegally hack into government computers.

But some press freedom advocates say they remain concerned. For one thing, the Justice Department could file a superseding indictment, so there is no guarantee that Espionage Act charges will stay out of the case. Under extradition procedures, however, any additional charges would most likely have to come soon — before Britain decides whether to transfer custody of Assange.

For another, prosecutors cited details that expanded beyond a narrow focus on cracking the passcode and that sounded like typical activities of a journalist. For example, the indictment talks about efforts to conceal conversations by using a special chat service and deleting certain chat logs. It also says Assange took a step to help Manning send him the files, by making a special folder for her to upload files.

And it quotes a purported exchange midway through Manning’s leaks in which she wrote, “After this upload, that’s all I really have got left,” but Assange replied, “Curious eyes never run dry in my experience.” Several weeks later, according to the indictment, Manning copied and sent WikiLeaks the diplomatic cables.

The Justice Department’s inclusion of those details as relevant to the case was cause for worry, said Jameel Jaffer, the executive director of the Knight First Amendment Institute at Columbia University.

“The indictment and the Justice Department’s press release treat everyday journalistic practices as part of a criminal conspiracy,” he said. “Whether the government will be able to establish a violation of the hacking statute remains to be seen, but it’s very troubling that the indictment sweeps in activities that are not just lawful but essential to press freedom — activities like cultivating sources, protecting sources’ identities and communicating with sources securely.”

Could Assange be charged later in connection with Russia’s election interference?

The Espionage Act does not cover the disclosure of unclassified emails like the Democratic messages, so prosecutors would have to come up with a theory in which publishing them violated some other law. Even if they could find one, a 2001 Supreme Court ruling held that the First Amendment did not permit prosecutors to charge someone with a crime for publishing or broadcasting information so long as no law was broken in acquiring it — even if the source who provided it did something illegal to obtain it.

No one has suggested the Russians needed or had any help from Assange in hacking Democrats’ emails. And Assange has denied knowing who his source was; at the time, Russian military intelligence officers created the fictitious online persona of a hacker calling himself Guccifer 2.0 to disseminate and call attention to the files, although evidence that it was most likely a front for Russian intelligence was broadly discussed.

What about the statute of limitations?

Normally, the statute of limitations prevents prosecutors from charging people with a crime for actions that took place more than five years ago. However, a hacking provision cited in the indictment — intruding into a government computer to obtain national security secrets — has an eight-year limit. A grand jury returned the indictment of Assange on March 6, 2018, just before the eighth anniversary of the day that Assange is accused of entering into a conspiracy with Manning to violate that law.

There is an oddity: As part of the USA Patriot Act after the Sept. 11 attacks, Congress added that provision to a list of crimes that get an eight-year limit under a separate law titled “extension of statute of limitation for certain terrorism offenses.” While Assange’s case involves national security, it is not about terrorism. The “terrorism” heading most likely makes no legal difference, however — just as prosecutors can use the words of the Espionage Act to charge leakers, not just spies.

Is a trial imminent?

No. Assange is widely expected to fight extradition to the United States by arguing in British court that his prosecution is politically motivated. That fight and inevitable appeals could take years to play out.

This article originally appeared in <a href="https://www.nytimes.com/2019/04/11/us/politics/assange-indictment-press-freedom.html" id="845aaf51-0f44-3ea1-aeb4-8cc621ea3a76">The New York Times</a>.

WASHINGTON — Charges against Julian Assange, the founder and leader of WikiLeaks, that were unsealed Thursday brought to a head a long-running debate about whether his actions construed a crime and what prosecuting him would mean for American press freedoms.

Press Freedoms and the Case Against Julian Assange, Explained

That route could resolve the immediate crisis by giving Trump a face-saving way to sign spending bills that do not include funding for his wall. But it would be an extraordinarily aggressive move — at a minimum, a violation of constitutional norms — that would most likely thrust the wall’s fate into the courts. Here is a primer on whether Trump can use emergency powers to proceed with the project without explicit congressional permission.

— What are emergency powers?

The president has the authority to declare a national emergency, which activates enhancements to his executive powers by essentially creating exceptions to rules that normally constrain him. The idea is to enable the government to respond quickly to a crisis.

Although presidents have sometimes claimed that the Constitution gives them inherent powers to act beyond ordinary legal limits in an exigency, those claims tend to fare poorly when challenged in court.

But presidents are on firmer legal ground when they invoke statutes in which Congress delegated authorities to the executive branch that can be generated in emergencies. In a recent study, the Brennan Center for Justice at New York University School of Law identified 123 provisions of law granting presidents a range of such powers.

The National Emergencies Act, enacted during the post-Watergate reform era, regulates how presidents may invoke such powers. It requires them to formally declare a national emergency and tell Congress which statutes are being activated.

— Can Trump use them to build a wall?

Maybe. The Trump administration could point to two laws and say they allow officials to proceed with building a border wall without first obtaining explicit authorization and appropriations from Congress, according to Elizabeth Goitein, who oversaw the Brennan Center’s study and is co-director of its Liberty and National Security Program.

One of the laws permits the secretary of the Army to halt Army civil works projects during a presidentially declared emergency and instead direct troops and other resources to help construct “authorized civil works, military construction and civil defense projects that are essential to the national defense.”

Another law permits the secretary of defense, in an emergency, to begin military construction projects “not otherwise authorized by law that are necessary to support such use of the armed forces,” using funds that Congress had appropriated for military construction purposes that have not yet been earmarked for specific projects.

In light of those statutes and similar ones that give presidents flexibility to redirect funds in a crisis, the Trump administration could point to serious arguments to back up Trump if he invokes emergency powers to build a wall, said William C. Banks, a Syracuse University law professor who helped write a 1994 book about tensions between the executive and legislative branches over security and spending, “National Security Law and the Power of the Purse.”

“The fundamental principle is that no president or official may spend funds that were not appropriated for that purpose,” he said. “But I think that it’s possible that the president could declare a national emergency and then rely on authority Congress has historically granted for exigencies to free up some funds to support constructing a barrier along the border.”

— Is Trump’s legal authority clear?

No. If he invokes emergency powers to build a border wall, Trump is almost certain to invite a court battle. While Goitein agreed that “there is a nonfrivolous legal case to be made” that emergency-powers laws may empower Trump to spend military funds on a wall, she also pointed to counterarguments any lawsuit would have to contend with.

For example, she noted, under one of the laws Trump might try to invoke, the military may redirect funds to build only projects that Congress has separately authorized. Lawmakers have not approved a military wall spanning the border.

Still, the administration might argue that Congress has effectively preapproved a wall-like barrier under other laws, including one that authorizes the military to construct border “fences” blocking drug-smuggling corridors, and another, the Secure Fence Act of 2006, that empowers the Department of Homeland Security to build “physical infrastructure enhancements” along the border.

The government could skip the requirement to identify pre-existing authorization for a wall if it invoked a different emergency-powers law for the funds, but that route would raise other problems, Goitein said. Among them, the government would need to show that a wall meets the legal definition of military construction even though it is not clearly tied to a military facility or installation, and that the southern border situation represents the kind of emergency that requires the use of the armed forces.

— Does it matter if there is no true emergency?

If Trump declares that the situation along the southern border suddenly constitutes an emergency that justifies building a wall without explicit congressional sanction, he will run up against a reality: that the facts on the ground have not drastically shifted. The number of people crossing the border unlawfully is far down from its peak of nearly two decades ago. The recent caravans from Central America primarily consist of migrants who are not trying to sneak across the border, but instead are presenting themselves to border officials and requesting asylum.

And while Trump and his aides keep claiming that terrorists are sneaking in across the border, including by the thousands, as a matter of empirical reality, there has been no such instance in the modern era.

Still, as a matter of legal procedure, facts may be irrelevant. Before a court could decide that Trump had cynically declared an emergency under false pretenses, the court would first have to decide that the law permits judges to substitute their own thinking for the president’s in such a matter. The Justice Department would surely argue that courts should instead defer to the president’s determination.

“If any court would actually let itself review whether this is a national emergency, he would be in big trouble,” Goitein said. “I think it would be an abuse of power to declare an emergency where none exists. The problem is that Congress has enabled that abuse of power by putting virtually no limits on the president’s ability to declare an emergency.”

— Why did Congress give presidents such broad power?

In part by accident. When passing many emergency-powers laws, Congress attached a procedure that would let lawmakers override any particular invocation of that authority. The National Emergencies Act, for example, permitted Congress to rescind an emergency if both the House and the Senate voted for a resolution rejecting the president’s determination that one existed.

But in 1983, the Supreme Court struck down those legislative vetoes. The justices ruled that for a congressional act to have legal effect, it must be presented to the president for signature or veto. Because it takes two-thirds of both chambers to override a veto, the ruling significantly eroded the check and balance against abuse that lawmakers had intended to be part of their delegation of standby emergency powers to presidents.

This article originally appeared in <a href="https://www.nytimes.com/2019/01/07/us/politics/trump-national-emergency.html" id="87dceab9-551e-3fe2-a3fd-78e011ec5b9e">The New York Times</a>.

Trump's Border Wall and Presidential Emergency Powers, Explained

WASHINGTON — As the budget standoff between President Donald Trump and congressional Democrats grinds into the third week of a partial government shutdown, the White House has floated the idea that Trump might invoke emergency powers to build his proposed wall on the Mexican border without lawmakers’ approval.

The new regulation, which had been expected, would ban the sale or possession of the devices under a new interpretation of existing law. Americans who own bump stocks would have 90 days to destroy their devices or to turn them in to the Bureau of Alcohol, Tobacco, Firearms and Explosives. The Justice Department said ATF would post destruction instructions on its website.

Bump stocks work by harnessing a firearm’s recoil energy to slide it back and forth to bump against a squeezed trigger, so that it keeps firing without any need for the shooter to pull the trigger again. The Justice Department said that this function transforms semi-automatic weapons, like assault rifles styled on the AR-15, into fully automatic machine guns, which Congress sharply restricted in 1986 — allowing the ban.

“With limited exceptions, the Gun Control Act, as amended, makes it unlawful for any person to transfer or possess a machine-gun unless it was lawfully possessed prior to the effective date of the statute,” the new regulation states. “The bump stock type devices covered by this final rule were not in existence prior to the effective date of the statute, and therefore will be prohibited when this rule becomes effective.”

A senior Justice Department official, briefing reporters about the new rule on condition of anonymity, said that it was believed that tens of thousands of bump stock devices are in circulation, but that more exact figures are unavailable. The official said the department expected that most owners of the devices would comply with the new regulation, and that ATF would investigate and take legal action against those who violate it.

After publishing a proposed version of the rule earlier this year, the government received 119,264 comments in support of it and 66,182 expressing opposition to it, the Justice Department said.

The regulatory move may face a legal challenge. The Justice Department had initially decided that the executive branch lacked the authority to ban bump stocks on its own under existing gun-control laws, and that action in Congress — where it is politically difficult to enact new gun-control legislation — would be necessary to curb legal access to the devices.

But the department reinterpreted its legal authority and determined it could ban the devices as an executive action after President Donald Trump directed it to find a way to prohibit them earlier this year, following the mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida. (The shooter in that massacre, who killed 17 people and wounded 17 others, did not use a bump stock.)

The National Rifle Association, the gun-rights lobby, did not immediately respond to a request for comment about the new rule or its intentions. In the immediate aftermath of the Las Vegas massacre, the NRA supported an ATF review of bump stock devices, seemingly breaking with its usual practice of fiercely opposing any new restrictions on legal access to firearms. At the time, it said it “believes that devices designed to allow semi-automatic rifles to function like fully automatic rifles should be subject to additional regulations.”

But the NRA never embraced a ban and the association’s chief lobbyist, Chris Cox, later bragged in an interview with a gun enthusiast that the organization’s actions had succeeded in slowing down momentum for legislative reform. As the Las Vegas massacre — the worst mass-shooting in modern American history — was replaced by other news, a push for legislation in Congress faltered.

This article originally appeared in <a href="https://www.nytimes.com/2018/12/18/us/politics/trump-bump-stocks-ban.html" id="8073e551-5198-3231-acd3-1c7016c633c6">The New York Times</a>.

WASHINGTON — The Trump administration on Tuesday issued a new rule banning bump stocks, the attachments that enable semi-automatic rifles to fire in sustained, rapid bursts and that a gunman used to massacre 58 people and wound hundreds of others at a Las Vegas concert in October 2017.

Trump Administration Imposes Ban on Bump Stocks

“With limited exceptions, the Gun Control Act, as amended, makes it unlawful for any person to transfer or possess a machine-gun unless it was lawfully possessed prior to the effective date of the statute,” the new regulation states, referring to 1986 restrictions on fully automatic weapons. “The bump stock type devices covered by this final rule were not in existence prior to the effective date of the statute, and therefore will be prohibited when this rule becomes effective.”

The regulatory move may face a legal challenge. The Justice Department had initially decided that the executive branch lacked the authority to ban bump stocks on its own under existing gun-control laws, and that action in Congress would be necessary to curb legal access to the devices. But the department reinterpreted its legal authority and determined it could ban the devices as an executive action after President Donald Trump directed it to find a way to prohibit them earlier this year.

In a 26-page memo signed May 3 and quietly posted Tuesday evening on the Justice Department’s website, Steven A. Engel, the head of the department’s powerful Office of Legal Counsel, concluded that the FDA had no right to regulate death-penalty drugs because they do not count as a “drug” or a “device” within the meaning of the Federal Food, Drug and Cosmetic Act of 1938.

Under the act, drugs that alter or affect the body cannot be brought to market in the United States unless and until the FDA has approved them as safe. But in a 2000 ruling, the Supreme Court held that the FDA lacked authority to regulate tobacco because it could not be used safely and yet there was no sign that Congress had intended for it to be banned.

Relying heavily on the exception the Supreme Court carved out in that ruling, Engel said that death-penalty drugs similarly do not come under the agency’s control.

The law that gives the agency the power to make sure drugs and devices are safe “cannot sensibly be applied” to death-penalty drugs because doing so would mean the act would effectively ban them, Engel wrote. “Yet the Constitution and laws of the United States presuppose the continued availability of capital punishment for the most heinous federal and state crimes.”

Interpretations of the Constitution and federal law by the Office of Legal Counsel are binding across the executive branch, so Engel’s ruling means the FDA must cease interfering with states’ attempts to import drugs like sodium thiopental, an anesthetic used as part of a lethal-injection cocktail in combination with other drugs that paralyze prisoners’ muscles and stop their hearts from beating.

States that have the death penalty have faced delays in carrying out executions using lethal injections because of a shortage of the drugs used for that purpose, including thiopental. The last U.S. manufacturer of thiopental stopped making it in 2009, Engel wrote.

Against that backdrop, a group of death row inmates sued the FDA in 2011 in an attempt to force it to block imports of thiopental as a misbranded and unapproved drug. The next year, a U.S. District Court judge ruled that the agency had a legal duty to block its importation and no discretion to choose not to do so. And an appeals court later unanimously agreed.

Under the Obama administration, the FDA accepted that ruling. In 2015, for example, the agency announced that it had impounded shipments of thiopental that Arizona and Texas had sought to import, saying that it was an unapproved drug that could not be imported into the United States under the 2012 court opinions.

But Engel wrote that the 2012 rulings turned only on the question of whether the FDA had discretionary power to choose not to use its drug enforcement powers over an imported substance. The courts did not address “the broader question of FDA’s jurisdiction,” he wrote — leaving the Justice Department free to decide the agency lacked any over execution drugs.

And he stressed that even if the question of whether the Food, Drug and Cosmetic Act should apply to an inherently unsafe substance like execution drugs were ambiguous, it should be interpreted in a manner that respects the right of states to decide for themselves whether to have the death penalty.

The principle of federalism, he said, “provides further support for the conclusion that the FDCA should not be read to regulate — and therefore, effectively prohibit — the states’ administration of capital punishment.”

Engel’s memo was addressed to the attorney general. It did not say whether the analysis had been commissioned by the former attorney general Jeff Sessions; the former acting attorney general Matthew Whitaker; or the current attorney general, William Barr.

But the issue arose early in the Trump administration because in January 2017, when Trump took office, the state of Texas sued the FDA, asking a judge to order it to release the shipment of vials of thiopental that the state had tried to import in July 2015.

This article originally appeared in <a id="76d390a5-78f1-367d-a287-8d4b05090861" href="https://www.nytimes.com/2019/05/14/us/politics/justice-dept-fda-death-penalty-drugs.html">The New York Times</a>.

Justice Dept. Stops FDA From Regulating Death-Penalty Drugs

WASHINGTON — The Justice Department has declared that the Food and Drug Administration lacks legal authority to regulate drugs that are used to carry out lethal injections, opening the door for states to import scarce death-penalty drugs even if the agency has not approved their use.

Justice Dept. stops FDA from regulating death-penalty drugs

Her life story, and her role in one of the most extraordinary leaks in American history, has been told in news articles, an off-Broadway play and even an opera. But while she spoke at her court-martial and has participated in interviews, Manning herself has not told her own story. Until now. Manning is writing a memoir, which Farrar, Straus and Giroux will publish in winter 2020, the publisher announced Monday.

Manning was convicted in 2013 and sentenced to 35 years in prison, the longest sentence ever handed down in an American leak case. After her conviction, Manning announced that she was a transgender woman and changed her name to “Chelsea,” although the military housed her in a Fort Leavenworth, Kansas, prison for male inmates. She had a difficult time there, attempting suicide twice in 2016, before President Barack Obama commuted most of the remainder of her sentence shortly before he left office in January 2017. In the meantime, WikiLeaks published Democratic emails stolen by Russian hackers during the 2016 presidential campaign, transforming its image from what it had been back when Manning decided to send archives of secret files to it.

Manning reappeared in the news this year, refusing to testify before a grand jury as federal prosecutors continue to build a case against Julian Assange, the WikiLeaks founder. Assange, in custody in Britain, is fighting extradition to the United States for a charge that he conspired with Manning to try to crack an encoded password that would have permitted her to log onto a classified computer network under a different person’s account rather than her own, which would have helped her mask her tracks better. She was jailed for two months for contempt over her refusal to answer questions about her interactions with Assange, then freed because the grand jury expired. But she has been served with a new subpoena prosecutors obtained from a new grand jury and is expected to be jailed again soon.

Below are edited excerpts from a conversation between Manning and Charlie Savage, a New York Times reporter who has written about her court-martial and her time in military prison.

Tell me about your book.

It’s basically my life story up until I got the commutation, from my birth to my time in school and going to the army and going to prison and the court-martial process. It’s a personal narrative of what was going on in my life surrounding that time and what led to the leaks, what led to prison, and how this whole ordeal has really shaped me and changed me. I view this book as a coming-of-age story. For instance, how my colleagues in the intelligence field really were the driving force behind my questioning of assumptions that I had come into the military with — how jaded they were, some of them having done two three four deployments previously. And then also there is a lot of stuff about how prisons are awful, and how prisoners survive and get through being in confinement.

Do you have a title yet?

There is no title yet. I am trying very hard to have some control over that, but none has been decided yet. Noreen Malone from New York magazine worked on it with me. She did a lot of the groundwork in terms of the research, and I did the storytelling, so it was a collaborative effort. I’m still going through and editing where she has taken independent sources to help refine my story, fact-check, verify things and provide a third-person perspective in shaping things.

Is it written in first-person or third-person?

It is written in first-person, but there are parts of the book that reference material that are independent of me. I’m still under obligation under the court rules and the Classified Information Procedures Act of 1980 to not disclose closed court-martial testimony or verify evidence that was put in the record. Things like that. So I can’t talk about that stuff and I’m not going to, and so I’m trying to keep this and maintain this as more of a personal story. There are parts of it that might reference reports or whatnot but I’m just going to say, “the media reported this, but I’m not confirming or denying it.”

Are you going to submit the manuscript to the government for a classified information review?

We’re trying our best to avoid the review process. There is a lot of stuff that is not going to be in the book that people would expect to be in there, but rules are rules and we can’t get around it. It’s more about personal experiences I had rather than anything specific. I’m not trying to relitigate the case, just tell my personal story.

So if it ends with you getting out of military prison, you’re not going to address your current situation with the grand jury investigating WikiLeaks?

No, we’re not planning on including that in this current stage. If there is a book that gets into the more juicy details about that stuff, then we’ll probably get around to that after going through a review process, several years down the road from now, whenever the dust settles. But I think this is more about trying to contextualize my story from my perspective rather than get into the weeds of what is in the record of trial, what is in the documents, what the investigation focused on, because we’re just not able to get into that area.

It sounds like you are a lot freer to talk about your gender identity than the WikiLeaks issue.

Yeah. This is less a book about the case and more a book about trials, tribunals, struggles, difficulties, and overcoming them and surviving. If people are expecting to learn a lot more about the court-martial and a lot more about the case, then they probably shouldn’t be interested in this book. But if they want to know more about what it’s like to be me and survive, then there are reams of information in here. It’s much more autobiographical than it is a narrative thriller or crime story or anything like that. I have always pitched this to being very similar to “Wild” by Cheryl Strayed. I’m really opening myself up to some really intimate things in this book, some really very personal moments and much more intimate points of my life that I’ve never disclosed before. You’re probably going to learn more about my love life than about the disclosures.

This article originally appeared in <a id="3e2220f6-7f55-410b-b454-5bf0dacbb104" href="https://www.nytimes.com/2019/05/13/books/booksupdate/chelsea-manning-book-deal.html">The New York Times</a>.

'I'm Really Opening Myself Up': Chelsea Manning signs book deal

WASHINGTON — Ever since she was publicly identified as the source who had disclosed a huge trove of military and diplomatic documents to WikiLeaks in 2011, Chelsea Manning, the former Army intelligence analyst, has been a polarizing cultural figure — called a traitor by prosecutors, but celebrated as an icon by transparency and anti-war activists.

For decades after World War II, as the modern international order was established, the United States stood in alignment with the world by restrictively interpreting “sovereign immunity,” the principle that people generally cannot sue governments. But starting with a 1996 law and expanding in the post-9/11 era, Congress has made it easier for victims of terrorist attacks to file such lawsuits.

Taking advantage of that exception, survivors and relatives of people killed by attacks linked to Iranian operatives — such as the 1983 truck bombing of a Marine base in Beirut — have used U.S. courts to file lawsuits against Iran. Iran has failed to show up in court to contest them, and judges have entered more than $50 billion in default judgments.

Those judgments are largely symbolic so long as there is no way for victims to enforce them and obtain the money that judges say Iran owes them. But after the deal with six world powers in 2015 in which Iran agreed to curb its nuclear program in return for relief from sanctions, billions in Iranian assets started to become available in Europe, which generally enforces judgments from U.S. courts.

In a first-of-its-kind effort two years ago, a group of attack victims tried to use a European court to seize Iranian funds to pay them part of a roughly $6.5 billion default judgment that a federal judge in New York awarded them in 2012. They had argued that Iran assisted al-Qaida, such as by facilitating travel by its operatives through Iranian territory.

They persuaded a court in Luxembourg to put a freeze on $1.6 billion in assets belonging to the Iranian central bank while it weighed their request.

But this week, a court in Luxembourg threw out the case. In a 160-page ruling, a panel of judges declared that there is no terrorism exception to sovereign immunity in the eyes of Luxembourg law, so the court could not enforce the U.S. ruling.

The attack victims were disappointed by the ruling and intended to appeal, according to their lawyer, Lee S. Wolosky, a partner in the law firm Boies Schiller Flexner and a former Obama administration State Department official.

“We believe the Luxembourg court got it wrong,” Wolosky said. “This is a valid U.S. judgment entitled to recognition in Luxembourg, just as Luxembourg’s judgments are afforded reciprocity in U.S. courts.”

On Thursday, Wolosky wrote to Prime Minister Giuseppe Conte of Italy, asking him to reject a request by Iran for assistance in turning back the victim families’ request that Iranian assets in Italy be frozen. The letter cited a 2014 Italian constitutional court ruling that the doctrine of sovereign immunity does not protect violators of human rights from lawsuits.

The case is raising an important test of the legislative spree that Congress went on after the Sept. 11 attacks to carve out a terrorism exception to sovereign immunity, said Harold Hongju Koh, a Yale Law School professor of international law who served as the State Department’s top lawyer in the Obama administration. Other countries did not follow suit, either in law or practice.

“Everyone knew a case would come along that exposes the divergence between a more limited set of restrictions on sovereign immunity held globally and the United States’ emerging position on non-immunity for various kinds of terrorist acts,” he said. “This case has exposed that seam.”

The case in Luxembourg has been closely watched not only by other victims of terrorist attacks holding similar default judgments, but by diplomats and security officials as well. Critics have raised concerns that if it succeeds, it would undermine the nuclear deal by making it harder for Iran to reintegrate into the world economy, strengthening the hand of hard-liners in Tehran who want to abandon the accord.

The ruling, if it holds, could help persuade Iran to adhere to the nuclear deal despite the Trump administration’s reimposition of sanctions, said Payam Mohseni, the director of the Iran Project at Harvard Kennedy School’s Belfer Center for Science and International Affairs.

“Through the Luxembourg court ruling, the Iranians will be gauging how viable continued engagement with the West will be in the future, particularly with the Europeans,” he said. “If Iranian assets are threatened in Europe, the value of staying in the nuclear agreement is significantly diminished for Iran.”

But the Luxembourg ruling is also a setback to efforts to make it easier for victims of terrorist attacks to win compensation that have been more successful inside the United States.

In 2016, the U.S. Supreme Court approved a request by another group of terrorist attack victims to seize nearly $2 billion in Iranian assets frozen on American soil after the 1979 revolution. (Iran called that “an outrageous robbery” and sued the United States in The Hague.)

Later that year, Congress enacted the Justice Against Sponsors of Terrorism Act, which further narrowed sovereign immunity, permitting lawsuits by victims of the Sept. 11 attacks against Saudi Arabia to proceed.

While Iran and its proxy Shiite militant group, Hezbollah, have been blamed by U.S. officials for many other terrorist attacks — like the 1983 attack in Lebanon or the 1996 truck bombing of Khobar Towers in Saudi Arabia — few terrorism specialists blame it for the Sept. 11 attacks, which were carried out by al-Qaida, a Sunni group.

But in 2012, the plaintiffs who later brought the case in Luxembourg won a default ruling in federal court in New York holding Iran responsible for the Sept. 11 attacks.

Still, it is the legitimacy of the American view of sovereign immunity — not the factual credibility of holding Iran responsible for the Sept. 11 attacks — that is at issue in Luxembourg. Wolosky argued that the United States’ view should not been seen as an outlier, saying that “international law has progressively expanded exceptions to state immunity, including in cases of terrorism.”

This article originally appeared in <a id="ec3f3a0c-2203-48d9-834a-815b44e55a4b" href="https://www.nytimes.com/2019/03/28/us/politics/iran-september-11th-victims.html">The New York Times</a>.

European Court Rules Against 9/11 Victims Seeking $1.6 Billion From Iran

WASHINGTON — A court in Luxembourg has ruled against a group of Sept. 11 victims in a novel lawsuit seeking $1.6 billion in Iranian assets, bringing to a head a long growing disagreement about a significant question of international law: Should governments be immune from lawsuits even when they are accused of responsibility for terrorist attacks?

European court rules against 9/11 victims seeking $1.6 billion from Iran

<h1>WASHINGTON — Chelsea Manning, the former Army intelligence analyst convicted in 2013 of leaking archives of secret military and diplomatic documents to WikiLeaks, revealed in an interview Thursday that she had been subpoenaed to testify before a grand jury — and vowed to fight it.</h1>

The subpoena does not say what prosecutors intend to ask her about. But it was issued in the Eastern District of Virginia and comes after prosecutors inadvertently disclosed in November that Julian Assange, the founder of WikiLeaks, has been charged under seal in that district.

Manning, who provided a copy of the subpoena to The New York Times, said that her legal team would file a motion to quash it on Friday morning, arguing that it would violate her constitutional rights to force her to appear. She declined to say whether she would cooperate if that failed.

“Given what is going on, I am opposing this,” she said. “I want to be very forthright I have been subpoenaed. I don’t know the parameters of the subpoena apart from that I am expected to appear. I don’t know what I’m going to be asked.”

Assange has been living for years in the Ecuadorean Embassy in London to avoid arrest. It has not been clear what the sealed charge or charges relate to, but prosecuting him for publishing government secrets would raise novel issues about the limits of First Amendment press freedoms.

Joshua Stueve, a spokesman for the office of the U.S. attorney for the Eastern District of Virginia, did not respond to an inquiry late Thursday. But there were multiple reasons to believe the subpoena is related to the investigation of Assange.

Among them, Manning said her lawyers have been talking about the subpoena with an assistant U.S. attorney in the Eastern District, Gordon D. Kromberg. After an inadvertent court filing revealed that Assange has been charged under seal, it was Kromberg who successfully argued before a judge that any such charges remain a secret and should not be unsealed.

Moreover, Manning said, Kromberg told her lawyers in vague terms that prosecutors wanted to talk to her about her past statements. During her court-martial, Manning delivered a lengthy statement about how she came to copy archives of secret documents and send them to WikiLeaks, including her online interactions with someone who was likely Assange.

“It’s disappointing but not surprising that the government is continuing to pursue criminal charges against Julian Assange, apparently for his role in uncovering and providing the public truthful information about matters of great public interest,” said Barry Pollack, a lawyer for Assange.

In recent years, Assange and WikiLeaks have become notorious for their role in disseminating Democratic emails stolen by Russian hackers as part of the Russian government’s covert efforts to damage the 2016 Democratic presidential nominee, Hillary Clinton, and help Donald Trump win.

The anti-secrecy group, however, had previously vaulted to fame by publishing archives of classified documents — including logs of significant events in the Afghanistan and Iraq wars and diplomatic cables — that revealed many things about what was secretly happening in the world. All those initial files, it eventually emerged, had been provided by Manning.

In 2017, WikiLeaks published documents about CIA hacking tools. A software engineer, Joshua A. Schulte, has been charged with that leak.

After Manning’s leaks, the Obama administration had considered trying to indict Assange. But while it has become common to prosecute officials under the Espionage Act for leaking files, using it against someone who merely received and published leaked files raised fears about chilling investigative reporting.

The Obama legal team eventually shelved the idea. But the Trump legal team moved forward with developing a sealed criminal complaint against Assange — for something — last summer, providing a potential basis to seek his extradition were he to emerge from the embassy.

The subpoena to Manning, dated Jan. 22, says she was ordered to appear on Feb. 5 before a grand jury at the federal courthouse in Alexandria, Virginia. But she said that date got pushed back, and she is now supposed to testify on March 5.

During her court-martial, Manning took responsibility for her actions and said Assange had not directed them.

“No one associated with WLO” — an abbreviation she used to refer to the WikiLeaks organization — “pressured me into sending any more information,” she said at the time. “I take full responsibility.”

Because that account would seemingly be helpful to the defense, she said she wondered if prosecutors wanted to try to get her to back away from it. She would not do so, she insisted, while criticizing the secrecy that surrounds grand jury proceedings.

“I am not going to contribute to a process that I feel is dangerous and could potentially place me in a position where I am forced to backtrack on the truth,” she said.

This article originally appeared in <a id="1db5697c-0ec7-473d-b419-87a8d11d3f57" href="https://www.nytimes.com/2019/02/28/us/politics/chelsea-manning-subpoena.html">The New York Times</a>.

Disclosing subpoena for testimony, Chelsea Manning vows to fight

The subpoena does not say what prosecutors intend to ask her about.

<h1>WASHINGTON — As the budget standoff between President Donald Trump and congressional Democrats grinds into the third week of a partial government shutdown, the White House has floated the idea that Trump might invoke emergency powers to build his proposed wall on the Mexican border without lawmakers’ approval.</h1>

— What are emergency powers?

— Can Trump use them to build a wall?

Maybe. The Trump administration could point to two laws and say they allow officials to proceed with building a border wall without first obtaining explicit authorization and appropriations from Congress, according to Elizabeth Goitein, who oversaw the Brennan Center’s study and is a co-director of its Liberty and National Security Program.

In light of those statutes and similar ones that give presidents flexibility to redirect funds in a crisis, the Trump administration could point to serious arguments to back up Trump if he invokes emergency powers to build a wall, said William C. Banks, a Syracuse University law professor who helped write a 1994 book about tensions between the executive and legislative branches over security and spending, “National Security Law and the Power of the Purse.”

— Is Trump’s legal authority clear?

No. If he invokes emergency powers to build a border wall, Trump is almost certain to invite a court battle. While Goitein agreed that “there is a nonfrivolous legal case to be made” that emergency-powers laws might empower Trump to spend military funds on a wall, she also pointed to counterarguments any lawsuit would have to contend with.

— Does it matter if there is no true emergency?

And while Trump and his aides keep claiming that terrorists are sneaking in across the border, including assertions that they are doing so by the thousands, as a matter of empirical reality, there has been no such instance in the modern era.

— Why did Congress give presidents such broad power?

But in 1983, the Supreme Court struck down such legislative vetoes. The justices ruled that for a congressional act to have legal effect, it must be presented to the president for signature or veto. Because it takes two-thirds of both chambers to override a veto, the ruling significantly eroded the check and balance against abuse that lawmakers had intended to be part of their delegation of standby emergency powers to presidents.

This article originally appeared in <a id="3df1c83e-a979-4824-ba73-9dee2aacc765" href="https://www.nytimes.com/2019/01/07/us/politics/trump-national-emergency.html">The New York Times</a>.

Trump's Border Wall and National Emergency Powers, Explained

Charlie Savage

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