Author Archives: Denise Simon

Executive Orders vs. Executive Memorandums

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Law versus and order versus a memo….are they all legal? Can the Supreme Court challenge White House written edicts to cabinet secretaries or is this expanding presidential authority outside the scope of the Constitution?

For more on the debate and the difference in executive actions click here.

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WASHINGTON — President Obama has issued a form of executive action known as the presidential memorandum more often than any other president in history — using it to take unilateral action even as he has signed fewer executive orders.

When these two forms of directives are taken together, Obama is on track to take more high-level executive actions than any president since Harry Truman battled the “Do Nothing Congress” almost seven decades ago, according to a USA TODAY review of presidential documents.

Obama has issued executive orders to give federal employees the day after Christmas off, to impose economic sanctions and to determine how national secrets are classified. He’s used presidential memoranda to make policy on gun control, immigration and labor regulations. Tuesday, he used a memorandum to declare Bristol Bay, Alaska, off-limits to oil and gas exploration.

Like executive orders, presidential memoranda don’t require action by Congress. They have the same force of law as executive orders and often have consequences just as far-reaching. And some of the most significant actions of the Obama presidency have come not by executive order but by presidential memoranda.

Obama has made prolific use of memoranda despite his own claims that he’s used his executive power less than other presidents. “The truth is, even with all the actions I’ve taken this year, I’m issuing executive orders at the lowest rate in more than 100 years,” Obama said in a speech in Austin last July. “So it’s not clear how it is that Republicans didn’t seem to mind when President Bush took more executive actions than I did.”

Obama has issued 195 executive orders as of Tuesday. Published alongside them in the Federal Register are 198 presidential memoranda — all of which carry the same legal force as executive orders.

He’s already signed 33% more presidential memoranda in less than six years than Bush did in eight. He’s also issued 45% more than the last Democratic president, Bill Clinton, who assertively used memoranda to signal what kinds of regulations he wanted federal agencies to adopt.

Obama is not the first president to use memoranda to accomplish policy aims. But at this point in his presidency, he’s the first to use them more often than executive orders.

“There’s been a lot of discussion about executive orders in his presidency, and of course by sheer numbers he’s had fewer than other presidents. So the White House and its defenders can say, ‘He can’t be abusing his executive authority; he’s hardly using any orders,” said Andrew Rudalevige, a presidency scholar at Bowdoin College. “But if you look at these other vehicles, he has been aggressive in his use of executive power.”

So even as he’s quietly used memoranda to signal policy changes to federal agencies, Obama and his allies have claimed he’s been more restrained in his use of that power.

In a Senate floor speech in July, Majority Leader Harry Reid said, “While Republicans accuse President Obama of executive overreach, they neglect the fact that he has issued far fewer executive orders than any two-term president in the last 50 years.”

The White House would not comment on how it uses memoranda and executive orders but has previously said Obama’s executive actions “advance an agenda that expands opportunity and rewards hard work and responsibility.”

“There is no question that this president has been judicious in his use of executive action, executive orders, and I think those numbers thus far have come in below what President George W. Bush and President Bill Clinton did,” said Jay Carney, then the White House press secretary, in February.

Carney, while critical of Bush’s executive actions, also said it wasn’t the number of executive actions that was important but rather “the quality and the type.”

“It is funny to hear Republicans get upset about the suggestion that the president might use legally available authorities to advance an agenda that expands opportunity and rewards hard work and responsibility, when obviously they supported a president who used executive authorities quite widely,” he said.

While executive orders have become a kind of Washington shorthand for unilateral presidential action, presidential memoranda have gone largely unexamined. And yet memoranda are often as significant to everyday Americans than executive orders. For example:

• In his State of the Union Address in January, Obama proposed a new retirement savings account for low-income workers called a MyRA. The next week, he issued a presidential memorandum to the Treasury Department instructing it to develop a pilot program.

• In April, Obama directed the Department of Labor to collect salary data from federal contractors and subcontractors to monitor whether they’re paying women and minorities fairly.

• In June, Obama told the Department of Education to allow certain borrowers to cap their student loan payments at 10% of income.

They can also be controversial.

AVOIDING ‘IMPERIAL OVERREACH’

Obama issued three presidential memoranda after the Sandy Hook school shooting two years ago. They ordered federal law enforcement agencies to trace any firearm that’s part of a federal investigation, expanded the data available to the national background check system, and instructed federal agencies to conduct research into the causes and possible solutions to gun violence.

Two more recent memos directed the administration to coordinate an overhaul of the nation’s immigration system — a move that congressional Republicans say exceeded his authority. Of the dozens of steps Obama announced as part of his immigration plan last month, none was accomplished by executive order.

Executive orders are numbered — the most recent, Executive Order 13683, modified three previous executive orders. Memoranda are not numbered, not indexed and, until recently, difficult to quantify.

Kenneth Lowande, a political science doctoral student at the University of Virginia, counted up memoranda published in the Code of Federal Regulations since 1945. In an article published in the December issue of Presidential Studies Quarterly, he found that memoranda appear to be replacing executive orders.

Indeed, many of Obama’s memoranda do the kinds of things previous presidents did by executive order.

• In 1970, President Nixon issued an executive order on unneeded federal properties. Forty years later, Obama issued a similar policy by memorandum.

• President George W. Bush established the Bob Hope American Patriot Award by executive order in 2003. Obama created the Richard C. Holbrooke Award for Diplomacy by memorandum in 2012.

• President Bush issued Executive Order 13392 in 2005, directing agencies to report on their compliance with the Freedom of Information Act. On his week in office, Obama directed the attorney general to revisit those reports — but did so in a memorandum.

“If you look at some of the titles of memoranda recently, they do look like and mirror executive orders,” Lowande said.

The difference may be one of political messaging, he said. An “executive order,” he said, “immediately evokes potentially damaging questions of ‘imperial overreach.'” Memorandum sounds less threatening.

Though they’re just getting attention from some presidential scholars, White House insiders have known about the power of memoranda for some time. In a footnote to her 1999 article in the Harvard Law Review, former Clinton associate White House counsel Elena Kagan — now an Obama appointee to the U.S. Supreme Court — said scholars focused too much on executive orders rather than presidential memoranda.

Kagan said Clinton considered memoranda “a central part of his governing strategy,” using them to spur agencies to write regulations restricting tobacco advertising to children, allowing unemployment insurance for paid family leave and requiring agencies to collect racial profiling data.

“The memoranda became, ever increasingly over the course of eight years, Clinton’s primary means, self-consciously undertaken, both of setting an administrative agenda that reflected and advanced his policy and political preferences and of ensuring the execution of this program,” Kagan wrote.

WHAT’S THE DIFFERENCE?

Presidential scholar Phillip Cooper calls presidential memoranda “executive orders by another name, and yet unique.”

The law does not define the difference between an executive order and a memorandum, but it does say that the president should publish in the Federal Register executive orders and other documents that “have general applicability and legal effect.”

“Something that’s in a presidential memorandum in one administration might be captured in an executive order in another,” said Jim Hemphill, the special assistant to the director for the government’s legal notice publication. “There’s no guidance that says, ‘Mr. President, here’s what needs to be in an executive order.’ ”

There are subtle differences. Executive orders are numbered; memoranda are not. Memoranda are always published in the Federal Register after proclamations and executive orders. And under Executive Order 11030, signed by President Kennedy in 1962, an executive order must contain a “citation of authority,” saying what law it’s based on. Memoranda have no such requirement.

Obama, like other presidents, has used memoranda for more routine operations of the executive branch, delegating certain mundane tasks to subordinates. About half of the memoranda published on the White House website are deemed so inconsequential that they’re not counted as memoranda in the Federal Register.

Sometimes, there are subtle differences. President Eisenhower signed Executive Order 10789 in 1958 giving emergency contracting authority to the Department of Defense and other Cabinet departments. President Bush added other departments in 2001 and 2003, but he and Obama both used memoranda to give temporary authority to the U.S. Agency for International Development to respond to crises in Iraq and western Africa.

When the president determines the order of succession in a Cabinet-level department — that is, who would take over in the case of the death or resignation of the secretary — he does so by executive order. For other agencies, he uses a memorandum.

Both executive orders and memoranda can vary in importance. One executive order this year changed the name of the National Security Staff to the National Security Council Staff. Both instruments have been used to delegate routine tasks to other federal officials.

‘THE FUNCTIONAL EQUIVALENT’

Whatever they’re called, those executive actions are binding on future administrations unless explicitly revoked by a future president, according to legal opinion from the Justice Department.

The Office of Legal Counsel — which is responsible for advising the president on executive orders and memoranda — says there’s no difference between the two. “It has been our consistent view that it is the substance of a presidential determination or directive that is controlling and not whether the document is styled in a particular manner,” said a 2000 memo from Acting Assistant Attorney General Randolph Moss to the Clinton White House. He cited a 1945 opinion that said a letter from President Franklin Roosevelt carried the same weight as an executive order.

The Office of Legal Counsel signs off on the legality of executive orders and memoranda. During the first year of Obama’s presidency, the Office of Legal Counsel asked Congress for a 14.5% budget increase, justifying its request in part by noting “the large number of executive orders and presidential memoranda that has been issued.”

Other classifications of presidential orders carry similar weight. Obama has issued at least 28 presidential policy directives in the area of national security. In a Freedom of Information Act lawsuit last year, a federal court ruled that these, too, are “the functional equivalent of an executive order.”

Even the White House sometimes gets tripped up on the distinction. Explaining Obama’s memoranda on immigration last month, Press Secretary Josh Earnest said the president would happily “tear up his own executive order” if Congress passes an immigration bill.

Obama had issued no such executive order. Earnest later corrected himself. “I must have misspoke. I meant executive actions. So I apologize,” he said.

Prisoner Swap Normalize Relations with Cuba

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It is another prisoner swap, this time with Cuba. New diplomatic relations are a top priority for the State Department and some rich Cuban that was an Obama campaign bundler could probably be the new Ambassador. Cuba’s bad behavior and past history has been rewarded by Barack Obama packaged under the wrappings of humanitarian and economic objectives.

This begs the question, does this ‘normalizing relations with Cuba have something to do with closing Guantanamo? What is the over and under bet on Obama turning over the military base completely to Castro and walking away from Guantanamo completely?

Obama has also demanded that Cuba release many of its prisoners. The Obama administration used Canada as the negotiations mediator.

Washington (CNN) — U.S. contractor Alan Gross, held by the Cuban government since 2009, was freed Wednesday as part of a landmark deal with Cuba that paves the way for a major overhaul in U.S. policy toward the island, senior administration officials tell CNN.

President Barack Obama spoke with Cuban President Raul Castro Tuesday in a phone call that lasted about an hour and reflected the first communication at the presidential level with Cuba since the Cuban revolution, according to White House officials. Obama is expected to announce Gross’ release and the new diplomatic stance at noon in Washington. At around the same time, Cuban president Raul Castro will speak in Havana

President Obama is also set to announce a major loosening of travel and economic restrictions on the country. And the two nations are set to re-open embassies, with preliminary discussions on that next step in normalizing diplomatic relations beginning in the coming weeks, a senior administration official tells CNN.

Talks between the U.S. and Cuba have been ongoing since June of 2013 and were facilitated by the Canadians and the Vatican in brokering the deal. Pope Francis — the first pope from Latin America — encouraged Obama in a letter and in their meeting this year to renew talks with Cuba on pursuing a closer relationship.

Gross’ “humanitarian” release by Cuba was accompanied by a separate spy swap, the officials said. Cuba also freed a U.S. intelligence source who has been jailed in Cuba for more than 20 years, although authorities did not identify that person for security reasons. The U.S. released three Cuban intelligence agents convicted of espionage in 2001.

The developments constitute what officials called the most sweeping change in U.S. policy toward Cuba since 1961, when the embassy closed and the embargo was imposed.

Officials described the planned actions as the most forceful changes the president could make without legislation passing through Congress.

For a President who took office promising to engage Cuba, the move could help shape Obama’s foreign policy legacy.

“We are charting a new course toward Cuba,” a senior administration official said. “The President understood the time was right to attempt a new approach, both because of the beginnings of changes in Cuba and because of the impediment this was causing for our regional policy.”

Gross was arrested after traveling under a program under the U.S. Agency for International Development to deliver satellite phones and other communications equipment to the island’s small Jewish population.

Cuban officials charged he was trying to foment a “Cuban Spring.” In 2011, he was convicted and sentenced to 15 years in prison for attempting to set up an Internet network for Cuban dissidents “to promote destabilizing activities and subvert constitutional order.”

Senior administration officials and Cuba observers have said recent reforms on the island and changing attitudes in the United States have created an opening for improved relations. U.S. and Cuban officials say Washington and Havana in recent months have increased official technical-level contacts on a variety of issues.

Obama publicly acknowledged for the first time last week that Washington was negotiating with Havana for Gross’ release through a “variety of channels.”

“We’ve been in conversations about how we can get Alan Gross home for quite some time,” Obama said in an interview with Fusion television network. “We continue to be concerned about him.”

Sen. Jeff Flake, R-Ariz., and Rep. Chris Van Hollen, Gross’ Maryland congressman, are on the plane with Alan Gross and his wife, Judy, according to government officials.

The group of members left at 4 a.m. ET Wednesday from Washington for Cuba.

Gross’ lawyer, Scott Gilbert, told CNN last month the years of confinement have taken their toll on his client. Gross has lost more than 100 pounds and is losing his teeth. His hips are so weak that he can barely walk and he has lost vision in one eye. He has also undertaken hunger strikes and threatened to take his own life.

With Gross’ health in decline, a bipartisan group of 66 senators wrote Obama a letter in November 2013 urging him to “act expeditiously to take whatever steps are in the national interest to obtain [Gross’s] release.”

The three Cubans released as a part of the deal belonged the so-called Cuban Five, a quintet of Cuban intelligence officers convicted in 2001 for espionage. They were part of what was called the Wasp Network, which collected intelligence on prominent Cuban-American exile leaders and U.S. military bases.

The leader of the five, Gerardo Hernandez, was linked to the February 1996 downing of the two civilian planes operated by the U.S.-based dissident group Brothers to the Rescue, in which four men died. He is serving a two life sentences. Luis Medina, also known as Ramon Labanino; and Antonio Guerrero have just a few years left on their sentences.

The remaining two — Rene Gonzalez and Fernando Gonzalez — were released after serving most of their 15-year sentences and have already returned to Cuba, where they were hailed as heroes.

Wednesday’s announcement that the U.S. will move toward restoring diplomatic ties with Cuba will also make it easier for Americans to travel to Cuba and do business with the Cuban people by extending general licenses, officials said. While the more liberal travel restrictions won’t allow for tourism, they will permit greater American travel to the island.

Secretary of State John Kerry has also been instructed to review Cuba’s place on the State Sponsors of Terrorism list, potentially paving the the way a lift on certain economic and political sanctions.

The revised relationship between the U.S. and Cuba comes ahead of the March 2015 Summit of the Americas, where the island country is set to participate for the first time. In the past, Washington has vetoed Havana’s participation on the grounds it is not a democracy. This year, several countries have said they would not participate if Cuba was once again barred.

While only Congress can formally overturn the five decades-long embargo, the White House has some authorities to liberalize trade and travel to the island.

The 1996 Helms-Burton Act, which enshrined the embargo into legislation, allows for the President to extend general or specific licenses through a presidential determination, which could be justified as providing support for the Cuban people or democratic change in Cuba. Both Presidents Clinton and Obama exercised such authority to ease certain provisions of the regulations implementing the Cuba sanctions program.

Gross’ lawyer, Scott Gilbert, told CNN last month the years of confinement have taken their toll on his client. Gross has lost more than 100 pounds and is losing his teeth. His hips are so weak that he can barely walk and he has lost vision in one eye. He has also undertaken hunger strikes and threatened to take his own life.

With Gross’ health in decline, a bipartisan group of 66 senators wrote Obama a letter in November 2013 urging him to “act expeditiously to take whatever steps are in the national interest to obtain [Gross’s] release.”

The three Cubans released as a part of the deal belonged the so-called Cuban Five, a quintet of Cuban intelligence officers convicted in 2001 for espionage. They were part of what was called the Wasp Network, which collected intelligence on prominent Cuban-American exile leaders and U.S. military bases.

The leader of the five, Gerardo Hernandez, was linked to the February 1996 downing of the two civilian planes operated by the U.S.-based dissident group Brothers to the Rescue, in which four men died. He is serving a two life sentences. Luis Medina, also known as Ramon Labanino; and Antonio Guerrero have just a few years left on their sentences.

The remaining two — Rene Gonzalez and Fernando Gonzalez — were released after serving most of their 15-year sentences and have already returned to Cuba, where they were hailed as heroes.

Wednesday’s announcement that the U.S. will move toward restoring diplomatic ties with Cuba will also make it easier for Americans to travel to Cuba and do business with the Cuban people by extending general licenses, officials said. While the more liberal travel restrictions won’t allow for tourism, they will permit greater American travel to the island.

Secretary of State John Kerry has also been instructed to review Cuba’s place on the State Sponsors of Terrorism list, potentially paving the the way a lift on certain economic and political sanctions.

The revised relationship between the U.S. and Cuba comes ahead of the March 2015 Summit of the Americas, where the island country is set to participate for the first time. In the past, Washington has vetoed Havana’s participation on the grounds it is not a democracy. This year, several countries have said they would not participate if Cuba was once again barred.

While only Congress can formally overturn the five decades-long embargo, the White House has some authorities to liberalize trade and travel to the island.

The 1996 Helms-Burton Act, which enshrined the embargo into legislation, allows for the President to extend general or specific licenses through a presidential determination, which could be justified as providing support for the Cuban people or democratic change in Cuba. Both Presidents Clinton and Obama exercised such authority to ease certain provisions of the regulations implementing the Cuba sanctions program.

Then there is the Venezuela component and additional financial ramifications.

Castro Deal With U.S. Fuels Shift Away From Venezuela

Cuba’s decision to reach an accord with the U.S. over prisoner exchanges in return for the easing of a five-decade embargo comes as the Caribbean island’s economy slows and its key benefactor, Venezuela, struggles to avoid default.

Cuba’s economy collapsed in the early 1990s when its closest ally, the Soviet Union, fell. With Venezuelan President Nicolas Maduro unable to contain the world’s fastest inflation and the country’s bonds trading at default levels, Cuba President Raul Castro has been working to diversify the Communist country away from Venezuela, which provides about 100,000 barrels of oil a day in exchange for medical personnel.

Since early 2013, Castro has eased travel restrictions, increased incentives to attract foreign investment and tried to reduce public payrolls. That hasn’t boosted the economy, which is poised to expand 0.8 percent this year according to Moody’s Investors Service, less than the 2.2 percent forecast by the government at the start of 2014.

“You only need to look at the economic disaster that is Venezuela and clearly it’s a bad bet to have all your chips in one basket,” Christopher Sabatini, policy director at Council of the Americas, said in phone interview from New York. “That 100,000 barrels per day gift of oil is going to end very soon.”

U.S. President Barack Obama today said he will use his authority to begin normalizing relations with Cuba, loosening a trade and travel embargo that dates back to the early days of the Cold War. The move came after Castro released an American aid contractor, Alan Gross, who had been imprisoned for five years and an unnamed U.S. intelligence agent.

Credit Cards

Under the new policies, U.S. travelers will be able to use credit and debit cards in Cuba and Americans will be able to legally bring home as much as $100 in previously illegal Cuban cigars treasured by aficionados.

U.S. companies will be permitted to export to Cuba telecommunications equipment, agricultural commodities, construction supplies and materials for small businesses. U.S. financial institutions will be allowed to open accounts with Cuban banks.

“It’s a huge step,” Philip Peters, a Cuba scholar and vice president of the Lexington Institute in Arlington, Virginia, said in a telephone interview. “The travel will help the economy, the sales from the private sector will help.”

 

For Putin and Russia it is Articulus (Crisis)

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Since hosting the winter Olympics, Russia has been in the spot light and that light is shining brighter from his aggression on Crimea and Ukraine, so deploying military assets globally. Russia has a spy and surveillance agenda in key locations worldwide but now, Putin is in crisis mode with the Russian economy.

Presently, anyone in Russia with money is spending it quickly before the value of the currency collapses. Russians are buying appliances, cars, homes and are converting currency.

  The foundations on which Vladimir Putin built his 15 years in charge of Russia are giving way.

The meltdown of the ruble, which has plunged 18 percent against the dollar in the last two days alone, is endangering the mantra of stability around which Putin has based his rule. While his approval rating is near an all-time high on the back of his stance over Ukraine, the currency crisis risks eroding it and undermining his authority, Moscow-based analysts said.  The president took over from an ailing Boris Yeltsin in 1999 with pledges to banish the chaos that characterized his nation’s post-communist transition, including the government’s 1998 devaluation and default. While he oversaw economic growth and wage increases in all but one of his years as leader, the collapse in oil prices coupled with U.S. and European sanctions present him with the biggest challenge of his presidency.

“People thought: ‘he’s a strong leader who brought order and helped improve our living standards,” said Dmitry Oreshkin, an independent political analyst in Moscow. “And now it’s the same Putin, he’s still got all the power, but everything is collapsing.”

In a surprise move yesterday, the Russian central bank raised interest rates by the most in 16 years, taking its benchmark to 17 percent. That failed to halt the rout in the ruble, which has plummeted to about 70 rubles a dollar from 34 as oil prices dived by almost half to below $60 a barrel. Russia relies on the energy industry for as much as a quarter of economic output, Moody’s Investors Service said in a Dec. 9 report.

New Era

The ruble meltdown and accompanying economic slump marks the collapse of Putin’s oil-fueled economic system of the past 15 years, said an executive at Gazprombank, the lender affiliated to Russia’s state gas exporter. He asked not to be identified because of the sensitivity of the issue.

The higher interest rate will crush lending to households and businesses and deepen Russia’s looming recession, according to Neil Shearing, chief emerging-markets economist at London-based Capital Economics Ltd.

Gross domestic product will shrink 0.8 percent next year under the Economy Ministry’s latest projection. With oil at $60, it may drop 4.7 percent, the central bank said last week.

“How many bankruptcies await us in January?” opposition lawmaker Dmitry Gudkov said on Twitter. “People will be out of work, out of money. The nightmare is only just beginning.”

Near Critical

Vladimir Gutenev, a lawmaker from the ruling United Russia party, also fretted about the central bank’s actions, calling the scale of the rate increase “unacceptable.”

“The situation concerning the financing of industry from bank credits is getting ever closer to critical,” Gutenev, who’s also first deputy president of the Machinery Construction Union, said by e-mail.

The threats to economic stability have arisen with Putin’s popularity at 85 percent after Russians lauded his approach to Ukraine following ally Viktor Yanukovych’s ouster. In particular, they cheered his annexation of Crimea, part of Russia until 1954, and shrugged off the ensuing U.S. and European sanctions that target the finance and oil industries.

While the unfolding ruble crisis may lead to a gradual erosion of Putin’s support, any protests that occur will mainly be against lower-level officials rather than Putin, said Igor Bunin, head of Moscow’s Center for Political Technologies.

“Putin is the symbol of Russia and the state for ordinary Russians,” according to Bunin, who said some members of the government may be fired as a result of the ruble chaos. “People see him as a lucky star who’ll save them. So they’re afraid to lose him as a symbol.”

Government ‘Incompetent’

Tatiana Barusheva, a 63-year-old pensioner who lives in the Gelendzhik resort city in the southern Krasnodar region, blames Putin’s underlings for the current bout of uncertainty.

“We can’t go far with this government, it’s incompetent,” she said yesterday on Moscow’s Red Square. “It doesn’t matter how hard Putin tries, but his helpers are good-for-nothing.”

Putin has already weathered one economic storm. The global financial crisis that erupted in 2008 wiped out 7.8 percent of Russia’s GDP the following year amid a similar tumble in oil prices. On that occasion, the ruble sank by about a third. The economy has grown each year since.

Even so, the sanctions mean Putin’s in a tougher bind this time round, according to Olga Kryshtanovskaya, a sociologist studying the elite at the Russian Academy of Sciences. Measures to ease the situation, such as imposing capital controls or softening Russia’s position on Ukraine, both carry additional risks, she said.

What’s happening now is worse than five years ago, according to Kirill Rogov, a senior research fellow at the Gaidar Institute for Economic Policy in Moscow. Putin risks losing his image as a leader who’s in control and can steer the country through turmoil, he said.

“After 2009, there was a quick recovery,” Rogov said. “Now we’re facing an uncontrollable shock. This undermines trust in Putin’s whole economic model.”

The other self imposed conditions adding to Putin’s crisis include the falling price of oil and his covert moves in Eastern Europe.

Putin Making Belarus Into Base For Attacking Kyiv, Minsk Analyst Says

Paul Goble

Staunton, December 15 – Even as Moscow appears to be reducing its military actions in southeastern Ukraine, a “reduction” that is at least in part a disinformation campaign, Putin is making Belarus into a base for attacking Kyiv.

The appearance of more Russian “little green men” in Gomel last week prompted some Ukrainians to ask whether the Kremlin was planning to stage a Novorossiya-style move into Belarus, notes Natalya Radina, the editor of the independent Belarusian site Charter97.org.

But such questions are based on a misperception of the situation: Putin has no need of invading Belarus as he did Ukraine, she says. Instead, he has full control of Ukraine’s northern neighbor and is taking steps to prepare it to become a place d’armes from which Moscow can attack Kyiv from the north.

For the last several years, Radina continues, Russian and Belarusian forces have been engaged in joint exercises based on the assumption of countering a NATO threat. But since at least last May, after Moscow moved into Ukraine, Russian military personnel have moved into Belarus, although in an effort to hide this activity, they have dressed in Belarusian uniforms.

At that time, there were roughly 3,000 Russian officers and soldiers in Belarusian garrisons. Now, their numbers are much greater. Moreover, as the Russian defense ministry has said, Moscow is advancing the date for the establishment of a completely Russian air base in Belarus so that it will be operational early next year.

One aspect of this situation is especially worrisome, Radina suggests. Moscow has said that its Belarusian base will have numerous Mi–8 helicopters which are used not for air defense but rather for moving troops. Such planes could be used to move troops quickly in the direction of Kyiv which is not far south of the Belarusian border.

Even if Moscow does not use this base to attack Ukraine, Russia’s ability to do precisely that will force Kyiv to divide its forces and thus make it easier for Putin to put pressure on the Ukrainian government, however much some in the West will try to see any “freezing” of movement in Ukraine’s southeast as a hopeful sign that the crisis is near an end.

 

 

Shhh, More Illegal Immigration Details

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Ever hear of the KIND program? Kids in Need of Defense….

Timothy C. Hester, a partner in Covington & Burling’s Washington, D.C., office, accepted KIND’s Allegiance Award on behalf of his firm at KIND’s May 2nd Pro Bono Awards ceremony. Below is a Q&A with Tim regarding his firm’s relationship with KIND:

KIND: How did Covington & Burling begin its partnership with KIND?

Timothy Hester: Covington has been involved with KIND from the organization’s start — Brad Smith (KIND Co-Founder and Board Co-Chair and Executive Vice President and General Counsel, Microsoft Corporation) approached us in 2007 to engage us in the core need to provide legal representation to the growing number of children who come to the United States as refugees or as immigrants without a parent or legal guardian. We were excited to contribute to KIND’s start up and our lawyers were eager to commit to representing KIND clients.

KIND: Why does your firm like working with KIND?

TH: There is so much to like about working with KIND — any lawyer who takes on a case with KIND is immediately put in the position to change the life of a child. It is the highest calling in pro bono service to provide legal representation to children who have faced incredible poverty, violence and persecution, and who now face the daunting prospect of navigating the legal intricacies of the immigration system without a lawyer. KIND has not only been a pioneer in identifying this important need, but it has employed a smart strategy to meet the need. From the outset KIND prioritized efficient and nimble operations to make maximum use of pro bono resources. In just a few short years, KIND has taken on the representation of thousands of children who would otherwise have faced the immigration system alone. Knowing that we are part of such an effective partnership is very rewarding — we know that we are part of a movement to ensure that unaccompanied children have a lawyer, an adult who cares about them, fighting in their corner for just treatment in the immigration system.

KIND: What do your attorneys gain from representing KIND clients?

TH: We have had 30 lawyers work on KIND matters. I know from speaking with my colleagues that this has been some of the most rewarding work of their careers. It is immensely satisfying for our lawyers to provide legal representation to children who would otherwise be forced to navigate the legal system and the immigration process on their own. This linkage with a child in need, and the ability to provide such critical help at a critical juncture for a child, is enormously fulfilling to our lawyers and reminds them of the highest calling of the profession.

KIND: How do you feel about receiving the award on behalf of Covington & Burling?

TH: Accepting the Allegiance Award was a tremendous honor. KIND’s staff are very impressive and the mission of this organization is so powerful that it was a moving experience to be a part of an evening that celebrated KIND’s many achievements over such a short period of time. We have been grateful to be a part of KIND’s mission, knowing that we are playing a small role in ensuring that children are receiving the representation they deserve in the immigration system. I am very proud of our volunteers and thankful to share this honor with them.

    C&B is a legal lobby firm whose growth has been so rapid that they are also moving into a new location, developed by the Qatar Foundation.

   Now back to immigration:

Guatemalan immigration officials are seeing an increase in people leaving their country hoping to benefit from President Barack Obama’s executive order that granted amnesty to approximately 5 million illegal aliens living in America.

Following the November 20 announcement about executive action on immigration, Guatemala has seen a spike in migration from individuals thinking they will also benefit from it, Guatemala’s La Prensa Libre reported.

While in televised speeches and in press conferences Obama Homeland Security Secretary Jeh Johnson have said that the executive action is only for those who have been in the country for more than five years and others would be placed into  priority deportation list, the message appears to have already been twisted in Central America.

According to the Latin American publication, Alejandra Gordillo, the director of the Guatemalan Migrant Assistance Council, said the immigration announcement can be a motivator for human smugglers who can trick Guatemalans in to paying large sums under the impression that they would be welcomed into America with open arms.

Gordillo said that two of her department’s offices have been contacted by people who are planning on traveling to America without documents thinking they will be included in the executive action.

La Prensa Libre claims that in the past 11 months, Guatemala has already seen more than 48,000 deportations with even more expected in the coming months.

Meanwhile, even from the New York Times:

Undocumented Immigrants Line Up for Door Opened by Obama

LOS ANGELES — They pushed strollers, tugged toddlers and streamed into the convention center in the heart of this city on Sunday, thousands of immigrants here illegally and anxious to find out if they could gain protection from deportation under executive actions by President Obama.

The crowd, waiting in a long snaking line to check in, was drawn by an information session organized by advocacy groups offering people initial assessments to see if they meet the requirements to apply to stay in the country and work. The day became a kind of coming-out party for about 5,000 unauthorized immigrants, the largest gathering in the country of people who might qualify for temporary protection since the president’s announcement last month.

Hundreds of activist leaders also converged here for a three-day strategy conclave to plot how to enroll a maximum number of people in order to create momentum among immigrants and Latinos so they will defend the president’s actions and try to stop Republicans from canceling the programs before they get off the ground.

“We’re telling all our families to get ready to apply if they qualify, because the more families apply, the harder it is for Republicans to take it away,” said Angelica Salas, the executive director of the Coalition for Humane Immigrant Rights of Los Angeles, one of the main groups organizing the event.

Now take a look at Eric Holder’s previous law firm, they are quite busy.

Since its founding over 90 years ago, Covington has had a strong commitment to public service.  Over the years, the firm has received recognition both nationally and locally for its contributions to the legal needs of persons and organizations of limited means.

Much of Covington’s pro bono work reflects the firm’s commitment to providing legal services to economically disadvantaged individuals and families in our surrounding communities.  Our six-month rotation program reflects this commitment by allowing lawyers and staff to work at each of three DC-based legal service organizations — Neighborhood Legal Services Program, the Children’s Law Center, and Bread for the City.  Covington pioneered the loaned associate model over 45 years ago. Since its start in 1969, nearly 300 lawyers have participated in the program.

While many of Covington’s pro bono efforts are anchored in meeting local needs, the firm also has a long history of serving the most vulnerable clients and important causes, regardless of location.  The firm handles numerous death penalty and wrongful conviction cases across the US, as well as other important civil and human rights matters, including class action litigation and systemic reform projects related to homelessness, marriage equality, freedom of the press, juvenile justice, mental health, mass incarceration, and government-sanctioned discrimination.  Lawyers in all of Covington’s offices are also working to advance international human rights and global access to justice, advising hundreds of NGOs focused on improving access to food, water, healthcare, education, economic opportunity, peace, and justice in the world’s poorest regions.

Accolades

  • The American Lawyer magazine has ranked Covington’s pro bono practice among the top five firms for 21 of the past 25 years, including ten years at number one.
  • Since 2003, the D.C. Circuit Judicial Conference has recognized those firms where at least 40% of the attorneys perform 50 or more pro bono hours during the previous year.  Covington has achieved this so-called “40 at 50” benchmark each year.
  • Law360 designated Covington as a 2014 Pro Bono Firm of the Year, noting that the firm has worked on “some of the year’s most pressing civil-rights litigation, including landmark challenges to New York City’s stop-and-frisk policing and an Arizona county’s targeting of Latino drivers under Sheriff Joe Arpaio.”  Law360 previously named Covington as a Pro Bono Firm of the Year in 2010 and 2012, and 2013.
  • Neighborhood Legal Services Program – Covington was presented with NLSP’s inaugural Enduring Impact Award for longstanding commitment to legal services and NLSP as a pro bono and advocacy partner, donor of rotating associates for 45 years, and sponsor of the Howard Westwood fellowships (2014).
  • National Law Journal – Covington was named to NLJ’s Pro Bono Hot List in 2013 and 2014.
  • California Lawyer – Stanley Young received a California Lawyer of the Year (CLAY) Award for trial victory in a class action racial profiling suit (Melendres v. Arpaio), as co-counsel to the ACLU Immigrants’ Rights Project (2014).
  • B’nai B’rith International – Distinguished Achievement Award honoring Covington’s dynamic leadership and demonstrated commitment to diversity and public service (2014).
  • Washington Lawyers’ Committee – Outstanding Achievement Awards for work with the Criminal Justice and Disability Rights Projects (2014).
  • Up2Us – Legacy Award (awarded to Paul Tagliabue) (2014).
  • Voices for a Second Chance – Charles A. Horsky Civic Leadership Award (awarded to firm chairman Timothy Hester and public service committee chair Alan Pemberton) (2014).
  • Legal Aid Society of the District of Columbia – Klepper Prize for Volunteer Excellence (awarded to Stephanie Doebler) (2014).
  • Asian Pacific American Legal Resource Center – Access to Justice Award (2014).
  • Center for Constitutional Rights – Legal Partnership Award for successful challenge to NYPD stop-and-frisk policies (2014).
  • Law Students in Court – Celebration of Service Award (awarded to Tom Williamson) (2014).
  • Connecticut Fair Housing Center – George J. and Patricia K. Ritter Pro Bono Award for fair housing work (2014).
  • DC Appleseed – Pro Bono Partner Award – for 20 years of support since the organization’s founding (2014).
  • GlaxoSmithKline Litigation Summit – Public Service Firm of the Year (2014).
  • National Law Journal “Champions” – Three Covington lawyers have been honored as “Champions” for upholding the profession’s core values through public service, pro bono efforts, and advocacy for civil liberties – Robert Long (2012); S. William Livingston (2011); Anthony Herman (2010).
  • National Legal Aid & Defender Association – Beacon of Justice Award (2013, 2011).
  • The Justice & Diversity Center – Outstanding Volunteer in Public Service Award (2013).
  • National Law Center on Homelessness & Poverty – Pro Bono Service Award (2012).
  • Legal Community Against Violence – Pro Bono Law Firm of the Year Award (2012, 2011).
  • Chinese American Citizens Alliance – Champion of Justice Award – for facilitating the passage of legislation expressing regret for the Chinese Exclusion Act of 1882 and other legislation that severely restricted the immigration of persons of Chinese descent (2012).
  • Innocence Project New Orleans – Outstanding Volunteer Counsel – for work to recover compensation for IPNO’s exonerated clients (2012).
  • Kids in Need of Defense – Allegiance Award (2012).
  • District Alliance for Safe Housing – Keystone Award (2012).
  • Sanctuary for Families – Above & Beyond Pro Bono Achievement Award (2011).
  • National Veterans Legal Services Program – Senator Daniel Inouye Award (presented to James McKay for his longstanding pro bono support of veterans) (2011).
  • United States District Court for the District of Columbia – Daniel M. Gribbon Pro Bono Advocacy Award (2010).
  • Brady Center to Prevent Gun Violence Legal Action Project – 20th Anniversary Honor Roll (2009).
  • DC Mayor Fenty – Community Service Award (2009).
  • The Nature Conservancy – Lifetime Achievement Volunteer Award (2008).

Recent Highlights

Asylum

  • Covington won asylum for a prominent Iranian journalist.  In 2005, an Iranian court had sentenced our client to death for his outspoken support of press freedom and women’s rights.  The sentence was reduced to three years on appeal.  After serving one year, he was diagnosed with a serious illness, which prison authorities ignored for months before finally granting him leave to seek treatment.  While on leave, he secured a US entrance visa and fled to the United States.  With Covington’s assistance, the client applied for and obtained asylum based on the persecution he suffered on account of his political beliefs.  Covington also successfully obtained humanitarian parole for his wife, who had fled to Turkey but was denied a US visa.  Humanitarian parole is a rare form of discretionary relief, which permits a foreign national to travel to and remain in the United States.  The Covington team lobbied various Washington officials to establish that, in this case, there were unusual circumstances that warranted a grant of humanitarian parole.
  • Though Iraq has faded somewhat from the news, between one and two million Iraqis remain refugees.  Often fleeing from death threats by armed groups, many escaped to neighboring countries such as Syria, where they have tried to navigate the United States Citizenship and Immigration Services (USCIS) refugee and resettlement process without access to counsel.  Working with the Iraqi Refugee Assistance Project at Yale Law School, several Covington attorneys are assisting three Iraqi refugees to appeal USCIS’s decision to reject their applications though they were deemed meritorious by the UN Refugee Agency.

Unaccompanied Immigrant Children

  • The firm represents undocumented children who have escaped, often alone, abusive situations in their home countries.  Through the KIND program (Kids in Need of Defense), our attorneys help children remain in this country by seeking various forms of immigration relief, including SIJS (Special Immigrant Juvenile Status).

Children & Education

  • Covington provides general corporate and employment advice to RUGMARK Foundation USA, a nonprofit organization working to end child labor in the carpet industry in South Asia.
  • A favorable settlement that the firm obtained resulted in reforms to a North Carolina school system designed to prevent abusive treatment of special needs students.
  • In a separate matter, the firm is advocating on behalf of incarcerated special needs youth in Maryland who are not receiving the rehabilitative special education services mandated by state law.

Judge Schwab vs. Escobar vs. Obama

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A judges decision filed today, finally identifies the core of the immigration issue, no separation of power by the White House.

Judge Schwab, a Bush appointee is calling into question the moral imperative that Barack Obama is using to render an amnesty program giving refugee relief for a number of illegals from 4 million to upwards of 11 million.

MEMORANDUM OPINION AND ORDER OF COURT RE: APPLICABILITY OF PRESIDENT OBAMA’S NOVEMBER 20, 2014 EXECUTIVE ACTION ON IMMIGRATION TO THIS DEFENDANT

On November 20, 2014, President Obama announced an Executive Action on immigration, which will affect approximately four million undocumented immigrants who are unlawfully present in the United States of America. This Executive Action raises concerns about the separation of powers between the legislative and executive branches of government. This core constitutional issue necessitates judicial review to ensure that executive power is governed by and answerable to the law such that “the sword that executeth the law is in it, and not above it.” Laurence Tribe, American Constitutional Law, 630 (3ed.-Vol. 1) (2000), quoting James Harrington, The Commonwealth of Oceana 25 (J.G.A. Pocock ed. 1992)(originally published 1656).

The Judge went on to include in his decision:

Had Defendant been arrested in a “sanctuary state” or a “sanctuary city,” local law enforcement likely would not have reported him to Homeland Security. If Defendant had not been reported to Homeland Security, he would likely not have been indicted for one count of re- entry of a removed alien in violation of 8 U.S.C. § 1326. Further, neither a federal indictment nor deportation proceedings were inevitable, even after Immigration and Customs Enforcement (“ICE”), a division of Homeland Security, became involved.

In 2013, ICE personnel declined to bring charges against thousands of undocumented immigrants who had previous criminal convictions.3 Therefore, Defendant possibly would not be facing sentencing and/or deportation if he had been arrested under the same circu mstances, but in another city/state or if different ICE personnel had reviewed his case. 1. Does the Executive Action announced by President Obama on November 20, 2014, apply to this Defendant? A. If yes, please provide the factual basis and legal reasoning. B. If no, please provide the factual basis and legal reasoning. 2. Are there any constitutional and/or statutory considerations that this Court needs to address as to this Defendant? If so, what are those constitutional and/or statutory considerations, and how should the Court resolve these issues? Doc. No. 26. The Court also invited any interested amicus to submit briefs by the same date. Id. Any party could file a response thereto on or before noon on December 11, 2014. Id. The Government, in its four (4) page response thereto, contended that the Executive Action is inapplicable to criminal prosecutions under 8 U.S.C. § 1326(a), and argued that the Executive Action solely relates to civil immigration enforcement status. Doc. No. 30. Defense Counsel indicated that, as to this Defendant, the Executive Action “created an additional avenue of deferred action that will be available for undocumented parents of United States citizen[s] or permanent resident children.”4 Doc. No. 31, 3. In addition, Defense Counsel noted that the United States Citizenship and Immigration Services (“USCIS”) “has announced that certain citizens of Honduras living in the United States are eligible to extend their Temporary Protected Status (TPS) so as to protect them from turmoil facing the citizens of that nation.” Id. at 5.

Additionally from the Judge: B. Substance of the Executive Action On November 20, 2014, President Obama addressed the Nation in a televised speech, during which he outlined an Executive Action on immigration. Text of Speech: http://www.whitehouse.gov/the-press-office/2014/11/20/remarks-president-address-nation- immigration. President Obama stated that the immigration system is “broken,” in part because some “play by the rules [but] watch others flout the rules.” President Obama outlined that he had taken actions to secure the borders and worked with Congress in a failed attempt to reach a legislative solution. However, he stated that lack of substantive legislation necessitated that his 8 Case 2:14-cr-00180-AJS Document 32 Filed 12/16/14 Page 9 of 38 administration take the following actions “that will help make our immigration system more fair and more just”: First, we’ll build on our progress at the border with additional resources for our law enforcement personnel so that they can stem the flow of illegal crossings, and speed the return of those who do cross over. Second, I’ll make it easier and faster for high-skilled immigrants, graduates, and entrepreneurs to stay and contribute to our economy, as so many business leaders have proposed. Third, we’ll take steps to deal responsibility with the millions of undocumented immigrants who already live in our country. As to this third action, which may affect Defendant, President Obama stated that he would prioritize deportations on “actual threats to our security.” The President also announced the following “deal”: If you’ve been in America for more than five years; if you have children who are American citizens or legal residents; if you register, pass a criminal background check, and you’re willing to pay your fair share of taxes — you’ll be able to apply to stay in this country temporarily without fear of deportation. You can come out of the shadows and get right with the law. That’s what this deal is. Thus, in essence, the President’s November 20, 2014 Executive Action announced two different “enforcement” policies: (1) a policy that expanded the granting of deferred action status to certain categories of undocumented immigrants; and, (2) a policy that updated the removal/deportation priorities for certain categories of undocumented immigrants. We are likely at step one of the legal showdown between Judge’s and the White House over immigration and the authority of Barack Obama.