Television personalities and politicians, from Tucker Carlson to Nancy Pelosi, are calling for changes to the law that has protected the internet since the ’90s. But they don’t seem to have a clue about what it actually says, or whom it really protects.
Section 230 is a portion of the 1996 Communications Decency Act. It has made the internet as we know it possible by establishing that tech companies are not responsible for what their users post on their apps, websites, and devices. Section 230 allows for the free exchange of ideas on the internet—and it may be just as important to online free speech as the First Amendment.
Section 230’s most important sentence reads as follows:
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
Critics have come up with creative ways of distorting what the law says. Here are four myths to watch out for:
Myth 1: Tech Companies Must Be Neutral
“Neutrality” is not a condition of the law. Section 230 was designed in part so that internet companies could discriminate by filtering out content that’s illegal, indecent, or otherwise objectionable. Before Section 230, online companies feared that any moderation would make them legally liable for user content. Section 230 explicitly says that’s not the case—”good faith” and “voluntary” attempts to filter out unwanted posts and users are OK.
Without Section 230, it would be hard for companies to avoid lawsuits and criminal charges without either becoming cesspools of totally unmoderated speech or banning user-generated speech entirely.
Myth 2: Section 230 Makes a Distinction Between Platform and Publisher
There is no legal distinction in Section 230 between a “publisher” and a “platform.” The word “platform” doesn’t even appear. What matters for legal purposes is who is responsible for creating particular web content.
Judgment calls about user speech—however poorly executed, and whatever ideological biases are apparent—just don’t affect whether a company is broadly protected by Section 230 or not.
Myth 3: Section 230 Shields Big Tech From Legal Liability
People like to pretend 230 created a legal “loophole,” but the congress that passed Section 230 back in 1996 was explicit: Section 230 would not apply when it comes to federal criminal laws or intellectual property law. That means copyright violators and serious criminals do not get a free pass because of Section 230.
What the law does provide is limited protection from criminal charges brought by state or local law authorities and some immunity from getting sued in civil court.
This immunity is lost if a company:
Creates illegal content itself or edits content in a way that contributes to its illegality
Participates in illegal acts to obtain content
Engages in or profits directly from some illicit action
Section 230 is meant to leave room for holding online operators accountable for their own sins but not for those of their customers.
Myth 3: Section 230 Is Only for Large Tech Companies
Section 230 shields not just the providers of digital services from litigation but the users of these services, too. Without it, anyone could find themselves liable for retweeting, reblogging, or posting links to content that is later found to break the law.
Yet for all the protections it provides to readers, writers, academics, shitposters, entrepreneurs, activists, and amateur political pundits of every persuasion, Section 230 has somehow become a political pariah.
The political class wants everyone to believe that the way the U.S. has policed the internet for the past quarter-century has actually been lax, immoral, and dangerous.
Don’t believe them. The future of free speech—and a lot more—may depend on preserving Section 230.
Written by Elizabeth Nolan Brown. Edited by Paul Detrick.
Giant by The Grand Affair is licensed under a Creative Commons Attribution license (https://ift.tt/1bFo3O7)
Source: https://www.youtube.com/audiolibrary_download?vid=46110e91d40fbb0c
Oil Prices Plunge After Trump-Iran Sanctions Headlines
WTI crude was sliding after mixed inventory data, but accelerated the losses, breaking below yesterday’s lows, after headlines suggesting Bolton was fired after disagreeing with Trump’s desire to ease Iran sanctions to get a meeting with Rouhani.
The reaction in crude (more supply) was instant…
As Bloomberg reports, President Trump discussed easing sanctions on Iran to help secure a meeting with Iranian President Hassan Rouhani later this month, prompting then-National Security Advisor John Bolton to argue forcefully against such a step, according to three people familiar with the matter.
After an Oval Office meeting on Monday when the idea came up, Treasury Secretary Steven Mnuchin voiced his support for the move as a way to restart negotiations with Iran, some of the people said.
“Bolton made sure to block any and all avenues for diplomacy w/ Iran, including a plan being brokered by Macron,” Suzanne DiMaggio, a senior fellow at the Carnegie Endowment for International Peace, said on Twitter.
“The French are offering Trump a facing-saving way out of a mess of his creation. He should grab it.”
And we know how it ended, later that day, Trump decided to oust Bolton, whose departure was announced Tuesday.
Charles Kupchan, a senior fellow at the Council on Foreign Relations, said that at the very least, Bolton’s exit reduces the chances of a military escalation.
“It’s too hard to say if a meeting will happen given the question of whether it’s politically palatable for both leaders,” said Kupchan.
“But the likelihood of a meeting has gone up because one of its main detractors is now out of a job.”
Of course, easing any sanctions without major concessions from Iran would undercut the pressure campaign that not only Bolton, but also Secretary of State Michael Pompeo and Trump have said is the only effective way to make Iran change its behavior.
Asked on Tuesday if he could foresee a meeting between Trump and Rouhani during the UN meeting, Pompeo responded: “Sure,” adding, “The president’s made very clear, he is prepared to meet with no preconditions.”
Chicago, Los Angeles, and New York City all have some easily identifiable management problems…
Over at The Atlantic, Derek Thompson mulls over whether we’re seeing a “great metropolitan exodus” because America’s top cities have recently begun losing population.
Chicago has been losing people for years now, but Los Angeles and New York City have also found themselves on the decline. Both cities had been seeing domestic outmigration (people moving out of the city to other parts of the country) for several years, but foreign immigration into the two cities have long made up for it.
But new census data show that Los Angeles County is seeing a net loss of about 13,000 folks, and New York’s Bronx, Kings, and Queens counties (all containing parts of New York City) have seen a combined net loss of about 40,000 people, based on census data released back in April.
Thompson hits some of the big issues affecting these cities (housing problems in Los Angeles, crime and racism in Chicago), but he does so in a vague “maybe this is a contributor?” fashion. It’s partly understandable; because the trend is new (except in Chicago) the full nature of this population drain isn’t entirely clear, and it’s too soon to give firm answers without falling into confirmation biases, even if they do have statistical support.
Still, each of these cities is facing some severe problems in the way they’re managed, their uncertain financial situations, and a general disregard for the welfare and liberty of the citizens who live there.
Chicago.
What more is there to say about a city that is infamous for its corrupt police department (not to mention the rest of its government) as well as its growing financial crisis? The city and state pension crises continue to escalate as Chicago has—for years—failed to properly fund the pensions of its very well-paid employees. The city has responded to this growing crisis not by cutting back on spending but by desperately looking for revenueanywhere they can get it, which means trying to shake more change out of the pockets of city residents. Reason‘s C.J. Ciaramella has documented how the city has been impounding people’s cars and attempting to soak them for thousands of dollars in fines.
Now the city is hoping that recently legalized marijuana sale revenue will help balance the budget, but the high taxes on recreational weed sales guarantee that (just like in California) a black market for pot will continue to thrive. The city cannot depend on that revenue to fix its problems.
As such, Chicago is seeking more and more money from its citizens to simply stay afloat. Chicago’s new mayor, Lori Lightfoot, noted in June that Chicago “cannot keep asking taxpayers to give us more revenue without the structural reforms that are fundamentally necessary to make our city and our state run better.” But then in July, Democratic Illinois Gov. J.B. Pritzker resisted her proposed solution to combine the state’s various pension systems under one umbrella out of fear it will hurt the state’s extremely troubled credit rating. Adam Schuster of the Illinois Policy Institute noted that Lightfoot’s plan was essentially an attempt to get a state bailout of Chicago’s pension debts, and the end result would likely be a massive state deficit and more calls for tax increases.
Chicago may well be in a financial death spiral. Given all the official city-sanctioned government pickpocketing, it’s not surprising that people are abandoning the Windy City.
Los Angeles.
Thompson quite accurately notes that the city and the entire state of California are stuck in a crisis due to lack of housing, and it’s most certainly contributing to L.A.’s outmigration (not to mention the city’s expanding homeless population).
But Thompson doesn’t really delve into the deliberately destructive regulatory systems in California that keep big cities like Los Angeles and San Francisco from being able to efficiently build more homes.
California gives its residents way too much power to attack and veto nearby housing developments by abusing state environmental regulations. The California Environmental Quality Act (CEQA) is invoked regularly by wealthier NIMBY (“not in my backyard”) types who may fret in public about the homeless crisis but will fight any solution that might bring more people to their neighborhood. CEQA is also regularly abused by construction unions to try to force developers to negotiate with them or risk long delays and court fights in order to build anything at all.
These fights naturally drive up the costs of housing, making it harder and harder for developers to actually build “affordable” housing, which then becomes another tool used to fight any housing development at all by people trying to hold back progress, complaining it will lead to gentrification and people (particularly poor minorities) getting shoved out of their homes. Research consistently shows that the idea that gentrification is caused by adding more housing to poor or minority communities is mostly nonsense. Yet it still gets used by NIMBY neighbors who are really just trying to protect their property values.
All of that is to say that the source of L.A.’s housing problem is easy to identify and solve. Instead, we’re seeing responses that will make the housing problem worse—like expanded rent control. Fortunately, though, there are some major housing developments currently under construction in Los Angeles. Unfortunately, the city council seems to think the solution to the city’s homeless problem involves banning them from sleeping outdoors in more places.
New York City.
It’s tempting to just say “Mayor Bill de Blasio” as an explanation of what’s ailing the Big Apple. There’s a reason that de Blasio is currently one of the least popular candidates vying for the presidential nomination: He is wildly unpopular in his own state.
De Blasio has pretty much no interest in what you, as a resident of New York City, would like to do with your property, your life, or your child’s education. He has said believes that the purpose of businesses and corporations are to serve the government and wants to seize and redistribute their profits if they make more money than he prefers. He has said he would like to seize poorly maintained propertiesto hand them over to the city’s Housing Authority, even though the agency has been ranked as the worst landlord in the Big Apple by the New York City Public Advocate, the city’s elected ombudsman.
De Blasio is also a massive enemy of school choice, unlike former Mayor Michael Bloomberg, who has donated his own money to support charter schools. De Blasio is fighting charter schools and gifted schools all to pander to unions and other politically powerful city residents. This attack isn’t going to hurt wealthy families—they will send their kids to private schools regardless. Instead, he’s hurting talented children in poor and minority families who see charter schools as an alternative when their kids are not being served well by traditional public schools. Instead of attempting to actually improve the quality of public schooling, he’s trying to institute demographic quotas to decide which children attend which schools in some misguided attempt at “fairness,” which will level the playing field by dragging everybody down to the city-approved level of mediocrity.
Despite de Blasio’s vocal attacks against the wealthy and connected, as mayor, he’s mostly served the entrenched city government power base at the expense of his own citizens. And we see the same in Los Angeles and Chicago. Is there any wonder people might be packing up and moving out?
Television personalities and politicians, from Tucker Carlson to Nancy Pelosi, are calling for changes to the law that has protected the internet since the ’90s. But they don’t seem to have a clue about what it actually says, or whom it really protects.
Section 230 is a portion of the 1996 Communications Decency Act. It has made the internet as we know it possible by establishing that tech companies are not responsible for what their users post on their apps, websites, and devices. Section 230 allows for the free exchange of ideas on the internet—and it may be just as important to online free speech as the First Amendment.
Section 230’s most important sentence reads as follows:
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
Critics have come up with creative ways of distorting what the law says. Here are four myths to watch out for:
Myth 1: Tech Companies Must Be Neutral
“Neutrality” is not a condition of the law. Section 230 was designed in part so that internet companies could discriminate by filtering out content that’s illegal, indecent, or otherwise objectionable. Before Section 230, online companies feared that any moderation would make them legally liable for user content. Section 230 explicitly says that’s not the case—”good faith” and “voluntary” attempts to filter out unwanted posts and users are OK.
Without Section 230, it would be hard for companies to avoid lawsuits and criminal charges without either becoming cesspools of totally unmoderated speech or banning user-generated speech entirely.
Myth 2: Section 230 Makes a Distinction Between Platform and Publisher
There is no legal distinction in Section 230 between a “publisher” and a “platform.” The word “platform” doesn’t even appear. What matters for legal purposes is who is responsible for creating particular web content.
Judgment calls about user speech—however poorly executed, and whatever ideological biases are apparent—just don’t affect whether a company is broadly protected by Section 230 or not.
Myth 3: Section 230 Shields Big Tech From Legal Liability
People like to pretend 230 created a legal “loophole,” but the congress that passed Section 230 back in 1996 was explicit: Section 230 would not apply when it comes to federal criminal laws or intellectual property law. That means copyright violators and serious criminals do not get a free pass because of Section 230.
What the law does provide is limited protection from criminal charges brought by state or local law authorities and some immunity from getting sued in civil court.
This immunity is lost if a company:
Creates illegal content itself or edits content in a way that contributes to its illegality
Participates in illegal acts to obtain content
Engages in or profits directly from some illicit action
Section 230 is meant to leave room for holding online operators accountable for their own sins but not for those of their customers.
Myth 3: Section 230 Is Only for Large Tech Companies
Section 230 shields not just the providers of digital services from litigation but the users of these services, too. Without it, anyone could find themselves liable for retweeting, reblogging, or posting links to content that is later found to break the law.
Yet for all the protections it provides to readers, writers, academics, shitposters, entrepreneurs, activists, and amateur political pundits of every persuasion, Section 230 has somehow become a political pariah.
The political class wants everyone to believe that the way the U.S. has policed the internet for the past quarter-century has actually been lax, immoral, and dangerous.
Don’t believe them. The future of free speech—and a lot more—may depend on preserving Section 230.
Written by Elizabeth Nolan Brown. Edited by Paul Detrick.
Giant by The Grand Affair is licensed under a Creative Commons Attribution license (https://ift.tt/1bFo3O7)
Source: https://www.youtube.com/audiolibrary_download?vid=46110e91d40fbb0c
Lately I’ve been looking at a number of office buildings in San Juan– I own two businesses that are based here in Puerto Rico, and it’s about time the team moved to a larger space.
I was really impressed with what I saw– there are a number of compelling new commercial real estate projects in Puerto Rico right now… and almost all of them are due to the Opportunity Zone legislation.
We’ve talked about this a few times before: Opportunity Zones are areas that have been deemed ‘economically underdeveloped’. And qualifying investments that take place within those Opportunity Zones are eligible for incredible tax breaks.
There are Opportunity Zones in every single state in the United States, including territories like Guam, US Virgin Islands, and Puerto Rico.
In fact, nearly the entire island of Puerto Rico is an Opportunity Zone. It’s incredible.
Doing business inside a designated Opportunity Zone means that qualifying investors are eligible for tax-free capital gains. Forever.
It works like this–
Let’s say you’re a US taxpayer and have just sold your business. Or perhaps cryptocurrency, stocks, or your real estate portfolio. And, after you sell, you’re sitting on substantial capital gains.
First, congratulations.
Second, you’re going to owe Uncle Sam a LOT of money– 20% capital gains tax, plus the 3.8% Obamacare surtax, plus possibly state and local tax as well.
BUT… if you roll your capital gains into a special fund that invests in Opportunity Zones, you can defer the tax on those gains for up to 7 years.
And any additional gains you make on your Opportunity Zone investments will be tax-free forever, as long as you hold the investment for at least 10 years.
The one sticking point is that, in order to be eligible for this extraordinary tax benefit, you have to invest capital gains in an Opportunity Zone, i.e. money that you’ve recently earned by selling other investments.
But– even if you don’t have a lot of capital gains right now, you can still benefit from Opportunity Zones. Because, for anyone who is looking for funding to start a business or real estate project, Opportunity Zones are an absolute gold mine!
That’s because there’s hundreds of billions of dollars… potentially even more than a $1 trillion… of capital gains in the United States right now that’s looking for interesting Opportunity Zone projects to invest in.
And right now there’s simply not enough great Opportunity Zone investments for all that capital.
This means that Opportunity Zone entrepreneurs and developers have access to a ton of capital that NEEDS to be invested. And the other HUGE benefit is that, since the Opportunity Zone tax benefits require a 10-year holding period, you’ll have investors with a very long-term view.
This is an absolute dream for anyone looking to raise money.
And don’t think that you have to start your business or development in some remote area.
As an example, there are even parts of that are qualified Opportunity Zones– part of the East Village and Lower East Side. Or across the East River in Brooklyn.
So you could literally raise money for real estate projects in New York City and provide your investors with long-term, tax-free gains.
Or, you could start a tech company in certain neighborhoods of Austin, Texas, or even parts of Silicon Valley, which are designated Opportunity Zones. And if those companies become successful and end up being acquired in the future, the gains would be eligible for the Opportunity Zone tax benefits.
There are Opportunity Zones everywhere, from American Samoa to Zanesville, OH. And there are likely plenty of ways for created, talented individuals to create value in all of them.
But it’s not just the financial incentives that make Opportunity Zones so compelling.
I’m seeing it first hand here in Puerto Rico. The neighborhoods where these Opportunity Zone investments are taking place are clearly on the rise. You can taste it. The streets are cleaner, the neighborhood is nicer. New businesses are moving in, so there’s a new bustle and energy where before there was gloom.
All the economic activity is creating jobs, plus tax revenue for the local government.
Everyone wins.
Of course, that doesn’t stop the Bolsheviks from dumping all over this tax incentive. They can’t stand win/win deals. They hate the fact that investors (who are already wealthy) receive tax breaks from their Opportunity Zone investments.
About two weeks ago, the New York Times (AKA the Daily Worker) did a hit job on Opportunity Zones with an article entitled, “How a Trump Tax Break to Help Poor Communities Became a Windfall for the Rich”.
It’s just a Bolshevik propaganda piece howling about rich people receiving tax breaks, and making absurd assertions that these Opportunity Zone investments aren’t helping poor communities.
I was literally standing in some of those poor communities last week, witnessing incredible transformation in progress.
But none of that matters to Bolsheviks. All they care about is making sure that wealthy people don’t benefit.
They can’t stomach a win/win deal. And they’d rather see no one benefit, than a rich person receive a single penny in tax breaks.
It’s pure insanity.
But here’s the good news: these people aren’t in power. At least, not yet. Which means, whether you’re an investor, entrepreneur, or developer, this Opportunity Zone trend still has ENORMOUS potential, and it’s absolutely worth considering.
Beijing Has “Proof” Of Foreign Intervention In HK Unrest, Summons German Ambassador
China has summoned Germany’s Ambassador in Beijing to its foreign ministry, saying it has “sufficient proof” that foreign forces intervened in Hong Kong, Reuters reports.
This comes just after German foreign minister Heiko Maas held a controversial meeting and photo op with pro-democracy activist Joshua Wong in Berlin on Monday. Wong has emerged as among the most visible virulently anti-Beijing representatives of popular protests and unrest which have gripped Hong Kong streets for months over the anti-extradition bill.
Joshua Wong meeting with German foreign minister Heiko Maas this week, via Reuters/DW.com
Beijing promptly slammed the meeting as “disrespectful,” also given Wong was hosted in German parliament as part of the meeting arranged by Bild newspaper to showcase “human rights activists around the world”.
“It is extremely wrong for German media and politicians to attempt to tap into the anti-China separatist wave,” said Chinese Foreign Ministry spokeswoman Hua Chunying in response to Wong’s high profile meeting. “It is disrespectful of China’s sovereignty and an interference in China’s internal affairs.”
“There are certain German media and politicians who seek attention and stage political shows by taking advantage of anti-Chinese separatists,” China’s foreign ministry continued. The ministry also noted Chancellor Angela Merkel had long been on record as supporting Hong Kong’s ‘one country, two systems’ status.
In Berlin I spoke to Foreign Minister @HeikoMaas on protests situation and our cause to free election and democracy in HK. Anticipating further discussion with members of German Bundestag in coming days. pic.twitter.com/y8VCUZrE6s
It’s unclear at this point the nature of Beijing’s “proof” of German intervention in Hong Kong’s affairs. If substantial state media will likely publish it; however, the German ambassador’s being summoned could be a mere continuation of Chinese anger over Wong’s trip to Berlin.
Wong had also previously come under scrutiny in Chinese state media for meeting with a US diplomatic official based out of the American consulate in Hong Kong. The woman he met with was identified as Julie Eadeh, chief of the US consulate in Hong Kong’s political unit – whichChinese media figures had denounced as a “subversion expert”.
Joshua Wong Chi-fung, secretary-general of the #Demosisto party, said there was “nothing sinister” behind his meeting with Julie Eadeh, a political unit chief of the US consulate general in Hong Kong. #Hongkongprotestpic.twitter.com/fLHXA4fTZ3
The US official’s secret meeting with key anti-Beijing protest leaders at a downtown HK hotel was only revealed by photographs showing the group talking in the lobby. Chinese officials cited the photograph as proof of a US “hidden hand” fueling the summer of tense anti-Beijing protests.
Interestingly, Wong was also photographed at the Bild newspaper event in Germany this week standing beside the head of the ‘White Helmets’ group in Syria, Raed Al Saleh.
A storm of criticism was unleashed on social media and in some international reports, specifically Russian media, given it is well documented that the White Helmets have received millions in funding by the US and UK governments.
‘If he wants to avoid the appearance of being used as a #US regime-change asset, #Wong certainly seems to be going about things the wrong way.’
We are a People of Amazing Grace who have not permitted the passage of time to besmirch the price paid by 2,977 patriots 18 years ago today. We have not forgotten.
Back then, I was a happy New Yorker who could never conceive such devastation. The only stress I knew was fanciful in retrospect. The pressure cooker of being in sales on Wall Street held nothing to what was to come. We naively enjoyed a backdrop of perfect peace in our country. Our generation was one war had never visited. We innocents lived as freely as we imagined we were.
On that perfect Tuesday morning, I walked part of the way to the office. I was not alone but joined by hordes taking in the blistering blindness of the blue sky. It would have been a perfect day for flying. But enemies of God, the state and mankind were in cockpits that morning, the first inklings of which we learned of at our desks. CNBC’s Mark Haines initial interruption went largely unnoticed. And then the second plane hit.
In the years that have since passed, we have fought back, defied the beasts, and rebuilt to the heavens. The Freedom Tower has become my visual touchstone, rising a symbolic 1776 feet into the sky. Its 200 x 200-foot base is identical to those of the Twin Towers whose footprints are forever memorialized, etched with every single name of the victims robbed from us that day. The new One World Trade Center can never replace the original or its sister. But the glorious architectural feat can stand proud as a reminder that we did not let the bastards get us down.
At 8:46 am EST, I will, as I’ve done every year, stop and pay tribute to the fallen as the ceremony gets underway that recites their names, one by one. We are all duty bound to do the same.
The tragedy of 9/11 did not end at 10:28 am when the North Tower collapsed. Recognizing this, today also honors the lives of the yet unknown, countless thousands who have followed. The 9/11 Memorial features a new addition, a sculptural salute inlaid with steel salvaged from the wreckage dedicated, “to those whose actions in our time of need led to their injury, sickness, and death.” I shall be visiting this addition on my next trip to New York. I invite you to do the same.
Years ago, I applied my God-given gift of writing to do what little I could to Never Forget. The product of that effort is Angels Manning Heaven’s Trading Floors. Many of you have read this. Many of you have not. It is painful for me, but I re-read it every year. Please share this with whomever you like. I am humbled for it.
This year, I also share with you a photo that is very special to me. It shows the Freedom Tower at night shining through the World Trade Center Oculus. The image marries the two testaments of our ability to rebuild, to our very resilience and the faith we hold in the good our country can be. I like to think that today’s tower that kisses the sky is accessible by the blessed traders looking down upon us, an easy step from the heavens they can reach in defiance of the steps they could not take up to escape their fates 18 years ago. We once were lost, but now are found. We have not forgotten.
We never will.
#NeverForget
Angels Manning Heaven’s Trading Floors
He could have passed for Yul Brynner’s twin if it wasn’t for those eyes. He was 57 years old, 6’2” tall, tan and handsome with a shining bald head. But his eyes, those elfish eyes dared those around him to partake of anything but his infectious happiness. It was those eyes I will never forget.
It was Labor Day weekend, 2001. One of my best friend’s college buddies from UCLA was in town and his uncle had a boat. So we had the good fortune to be invited to take a cruise around Shelter Island on that long holiday weekend 18 years ago. I was 30 years old at the time and I can tell you there was no “boat” about this Yul Brynner look-a-like’s 130- foot yacht. The crystal champagne flutes, the hot tub on the deck, the full crew – none of these accoutrements faintly resembled the boats I’d been on as a middle class girl spending summers off Connecticut’s stretch of Long Island Sound. The thing is, our friend’s uncle was none other than Herman Sandler, the renowned investment banker and co-founder of Sandler O’Neill.
I wasn’t sure what to expect of Sandler and I had no idea that this chance meeting would make a soon to happen unspeakable act that much more real. Would Sandler exude that same pomposity so common among the Ivy League investment bankers who had underwritten the Internet Revolution? In a word, hardly. Sandler personified self-made man. After introducing me to his family, of whom he was immensely proud, he graciously offered me something to eat or drink. And then, he told me a story about a man who knew the value of never straying the course. It haunts me to this day.
It was a good old-fashioned American Dream story about a man and some friends who started an investment bank to banks and built their firm to the top of the world. Literally. The secret to his success, which he enjoyed from his place in the clouds, on the 104th floor of the south tower of the World Trade Center was simply hard work, he said. He prided himself, relaying to me in what I could tell was a tale he’d repeated time and again, not only on making it to the top of the tallest building in the city, but on beating the youngest and hungriest to the office in the mornings and turning off the lights at night. Never forget where you come from. Never take for granted what you have.
In 2001, I had been on Wall Street for five years and was enjoying my own success and experiencing firsthand what money could buy. Given the choices my world offered, most would not have chosen night school. But I was determined to fulfill a lifelong dream and attend Columbia where I was to earn my master’s in journalism to complement my MBA in finance from the University of Texas. I guess I was not like most others. I wanted something tangible to open the next door in my career, which I knew would involve both the markets and writing. I called it my retirement plan.
Throughout this Wall Street by day, student by night chapter of my life, the minute the stock market closed at 3 pm, I would rush to the west side subway lines to trek north to Columbia’s campus. Just before Labor Day that year, I had turned in a class project, exploring the world of the famous Cornell Burn Center at New York-Presbyterian Hospital. During my time on the project, the unit was quiet save a few occupants, which apparently was not the norm. So those brave nurses had to paint a picture for me of what it was like when the floor was bustling with victims of fire-related disasters. Many of the stories of pain and suffering were so horrific I remember being grateful for the relative calm and saying a little prayer the unit would stay that way.
I returned to work on Tuesday, September 4, after that long weekend that proved to be fateful, with a new perspective on life and work, inspired by Sandler’s humility. Little did I know we were all living on precious borrowed time. It was impossible to conceive that one short week later, Sandler’s inspirational tale and those nurses’ surreal stories would collide in a very real nightmare.
It’s the Pearl Harbor of my generation. Most Americans can tell you where they were on the morning of September 11, 2001. I had walked part of the way to work that day, so picture perfect was the blue of the blue sky. I was in my office at 277 Park Avenue in midtown watching CNBC’s Mark Haines on my left screen and pre-market activity on my right screen. As was most often the case, it was muted as live calls on economic data and company news came over the real life squawk box on my desk. My two assistants were seated outside my office going through their pre-market routine, fortified as was usually the case with oatmeal, yogurt and coffee. In retrospect, the mundaneness of the morning’s details are bittersweet.
It was almost 9 am and out of the corner of my eye, I noticed that a live picture of the World Trade Center had popped up on CNBC. Haines reported, as did many initially, that a small commuter plane had hit the north tower of the World Trade Center. As distracting as the image was, I tried to go back to my own morning routine, preparing for the stock market open in what had ceased to be one-way (up) trading after the Nasdaq peaked in March 2000.
And then, at 9:02 am, time stood still. A scream pierced the floor as one of my assistants watched a second plane, a second enormous plane, fly straight into what appeared to be Morgan Stanley’s office floors in the south tower, where her father was at work. As things turned out, it didn’t matter where the plane had hit for the employees of Morgan Stanley that morning. They had Rick Rescorla, the firm’s Cornish-born director of security and a Vietnam veteran who had been preparing for this day for years. He knew the Twin Towers were an ideal target for terrorists. Thanks to his efforts and years of constant drilling – every three months, which some thought overzealous — all but 13 of Morgan Stanley’s 2,687 employees and 215 office visitors survived that day. With the evacuation complete, Rescorla heroically reentered the buildings to continue his rescue efforts and in doing so, paid the ultimate price.
Ironically, as was the case with Morgan Stanley’s Rescorla, some at Sandler O’Neill had lived through the first attack on the World Trade Center. When the young firm had outgrown its previous office space, it chose the south tower as its new home, moving in the same week it was bombed on Friday, Feb. 26, 1993. Many who struggled their way down over 100 flights in crowded stairwells, through seas of discarded women’s shoes, learned the lesson that they would have been just as well staying put. It was that very hesitation, borne of that lesson, that cost many of the firm’s employees their lives.
In the 16 minutes between the time the first and second planes struck the towers, the Port Authority had announced over the south tower’s intercom system that the issues were isolated to the north tower and to stay put. That didn’t mean the scenes across the way at the north tower were any less horrifying as rather than suffocate or burn to death, some leapt to their deaths before the very eyes of those across the way in the south tower.
Amid this mayhem, Jennifer Gorsuch, a Sandler employee, emerged from the ladies room just in time to hear Sandler shout, “Holy shit!” Gorsach rushed to find a friend and fellow Sandler employee who had survived the 1993 ordeal and knew of an escape route. Together, the two set off down an open stairwell.
Sandler, though, going off his 1993 experience, told one investment banker who did survive 9/11 that the safest place to be was in the office. He added, though, that anyone who wanted to leave was welcome to do so. Of the 83 employees in the office that morning, 17 chose to leave right away. The bond traders and most of those on the equity desk chose to remain.
Only three other Sandler employees would make it out alive. The rest, including Sandler himself, were never aware that one, and only one, open staircase offered them safe passage; the building’s intercom system had been knocked out at the time of the second plane’s impact.
From the little we know, many that day above the crash site tried to get to the roof. Though it would not have made a difference in the end, it is nevertheless deeply disturbing that the door to the roof was found to have been locked. The towers were exempt from a city code that required roof access to remain unlocked. The Port Authority and Fire Department had agreed that the safest evacuation route was down, not up. Plus, enforcing the exemption delivered a loud and clear message to vandals, media-mongering pranksters and those contemplating suicide.
For me, the sweetest sorrow came down to the nobility of those brash, boisterous traders. Many that day, at Sandler O’Neill and Keefe, Bruyette & Woods and Cantor Fitzgerald, among others, were among the 1,500 who could have possibly escaped but chose to do right by their firms’ clients. You see, once it was understood that the attacks were an act of terror, the markets began to flash angry red, promising to crash at the open, handing certain victory to the evil, soulless weaklings who took aim at the economic heart of this great country. It is the traders who chose to man their stations I mourn to this day, those I have always called, with utter reverence, the real Masters of the Universe.
The helplessness I felt when the buildings fell was matched only by my horror at the silence that followed. At some point between 9 am and 10 am that morning, I found myself praying the deafening fire engine and ambulance sirens tearing down Park Avenue would just stop blaring. The cacophony had filled the 102 minutes that followed the initial plane striking the north tower at 8:46 am. But then the buildings did fall. Although the second to be struck by a plane, the south tower was the first to fall at 9:59 am. In the 29 minutes that followed, we all prayed the north tower would escape the fate of its sister to the south. But it was not to be. The unthinkable, the impossible happened, not once, but twice. And then it was quiet, quiet for days and months and now, 18 years.
Of course, there were miraculously 12,000 who walked away, mainly those who had evacuated the floors beneath the impact zones in both buildings. No doubt, the survivors paved a pathway of hope to help the country heal. But the dearth of rescues was nevertheless heartbreaking as we collectively sat vigil praying man and dog would pull a survivor from the pile. Hence the devastation wrought by the silence. It was unfathomable to contrast those who had braved the fires and lost, and the mere 22 survivors admitted to the no longer nearly vacant Cornell Burn Center of my Columbia class project experience. As if to punctuate the pain, four hospital EMS employees had been lost along with 408 other rescue workers that dark day.
Normalcy was suspended in the days and hellish nights that followed. We financial markets survivors, weighed down by guilt as we were, were told to do what those in those towers had done so bravely. We stayed on call in the event Dick Grasso and the other powers that be were able to open the markets for trading. We were prepared to be the calm in the stormy market seas that were sure to follow the initial open.
Unlike the markets, Columbia resumed classes on Wednesday, September 12th. The moment I stepped out of my cab on 125th Street that evening, the memories of the sounds of 9/11 were lost in the overwhelmingly toxic smells of its aftermath. Buffered as I was, at home in the middle of the island on Fifth Avenue, I had only experienced the tragedy’s aftermath from the nonstop playback news images of the towers that were, and then ceased to be. But Columbia, with its proximity to the Hudson, is an inescapable spot to take in what the winds carry. That evening it was the sad novelty of the smell of burning computers, steel and God knows what else, something I hope to never know again.
On Friday, September 14th, I was set free to travel north to Connecticut to the loving arms of my family who were worried so. They tried to bolster my spirits, what with my 31st birthday set to arrive on Monday. But I was in no place to find the will to celebrate. I was short the markets, poised to profit the minute trading opened on Monday morning and beating myself up as a traitor to my country for being so. The moment I was able to do so on the morning of September 17th, I closed out my position. And I manned my station.
That night, most of my friends dragged me out to my favorite Italian restaurant. But one of us was absent from the table. My dear friend, whose UCLA friend had introduced us to Herman Sandler, found herself in the right place at the right time to begin to help the healing process. At the time, she was working at Bank of America in midtown. The very day the towers fell, the bank had offered Sandler O’Neill survivors temporary office space in the same midtown office at which my friend worked. Jimmy Dunne, who found himself running Sandler O’Neill in the flash of an eye, gratefully accepted. Dunne had been out of the office on 9/11 trying to qualify for the U.S. Mid-Amateur Classic; he survived by chance and chance alone. So devastated was my friend that she chose to stay late every night, on her own time, to help Dunne write condolence letters to the families of the 66 Sandler employees who had lost their lives. She would eventually end up working at Sandler.
On my birthday, six days after 9/11, my friends insisted that robbing us all of joy, the very ability to celebrate life’s little occasions, would represent yet another feather in the caps of the cowards who attacked our fearless traders, our Masters of the Universe who were now all, and would be forever, on heavens’ trading floors. We raised our glasses to them that September evening and I remember thinking I hope Smith & Wollensky delivers in the celestial realm.
But I don’t digress. I never do on 9/11. I never shy away from remembering the worst day of my life. To do so would be an unforgivable dishonor to the 2,977 victims who gave their lives on that painfully beautifully September morning. And so, I never will.
Responding to a 2007 Boston Globe survey of presidential candidates, Barack Obama rejected the idea that the president has the authority to wage war without congressional authorization whenever he thinks it is in the national interest. “The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation,” he said.
After he was elected president, Obama took a different view, maintaining that he did not need congressional approval to attack Libya, Syria, or ISIS. He also defied the requirements of the War Powers Resolution, absurdly arguing that dropping bombs and firing missiles from drones in Libya did not constitute “hostilities” under that law.
Given that experience, we probably should take statements on this subject from the 2020 presidential contenders with a grain of salt. It is nevertheless instructive to see how they responded to a New York Times survey about executive power, since they express a pretty wide range of views and what they say now can be held against them later. The 14 Democrats and two Republicans who responded to the survey can be roughly divided into three groups: four who are signaling that they will do pretty much whatever they want when it comes to deploying the country’s military might, eight who argue that the president’s war powers are more constrained than residents of the White House historically have been willing to admit, and four who fall somewhere in the middle.
Article I of the Constitution says Congress has the power “to declare war,” while Article II makes the president “commander in chief” of the armed forces. Recent presidents have taken the position that the latter power effectively nullifies the former power, making it unnecessary to seek a declaration of war even in situations where the country does not face an imminent or actual attack.
The Times specifically asked the presidential candidates about the view, backed by the Justice Department’s Office of Legal Counsel (OLC), that “the Constitution authorizes the president, as commander in chief, to order the military to attack other countries without congressional permission if the president determines that this would be anticipatory self-defense or otherwise serve the interests of the United States—at least where the nature, scope and duration of the anticipated hostilities are ‘limited.'” The paper also asked, “Under what circumstances other than a literally imminent threat to the United States, if any, does the Constitution permit a president to order an attack on another country without prior Congressional authorization?” And it wanted to know whether the candidates thought “bombing Iranian or North Korean nuclear facilities” would require congressional approval.
Here are the most telling responses, divided into unconstrained and constrained views of the president’s war powers.
UNCONSTRAINED
Former Vice President Joe Biden (D): “The Constitution vests the President, as Commander in Chief and Chief Executive, with the power to direct limited U.S. military operations abroad without prior Congressional approval when those operations serve important U.S. interests and are of a limited nature, scope, and duration…Only in the most exigent circumstances would I use force without extensive consultation with Congress.” Since “U.S. interests” are in the eye of the beholder and the president unilaterally decides when military operations are “limited” enough that they do not qualify as “war,” this formulation amounts to a blank check. And notice that Biden promises “consultation” with Congress, which is emphatically not the same thing as seeking formal approval.
Sen. Kamala Harris (D–Calif.): “The President’s top priority is to keep America secure, and I won’t hesitate to do what it takes to protect our country in the face of an imminent threat in the future. But after almost two decades of war, it is long past time for Congress to rewrite the [2001] Authorization for Use of Military Force that governs our current military conflicts. The situations in Iran or North Korea would require careful consideration of all of the surrounding facts and circumstances.”
Sen. Amy Klobuchar (D–Minn.): “I agree with the Office of Legal Counsel’s determination that the President is authorized to direct the use of force where the nature, scope and duration of the anticipated hostilities are limited. I also believe that the President has a solemn duty to protect and defend the United States and that the Constitution requires Congress to authorize war.”
Rep. Tim Ryan (D–Ohio): “The President has a unique obligation to defend the country and it should be handled on a case-by-case basis on the actual security risk it poses to the country.”
CONSTRAINED
South Bend, Indiana, Mayor Pete Buttigieg (D): “I am concerned that the Executive Branch has stretched the President’s unilateral war-making authority too far.….[The OLC’s position] acknowledges the reality that a President may need, in rare and extraordinary circumstances, to take swift action in response to attacks or imminent threats of attack. But while it may reflect history, it strays from our Constitution’s design. Moreover, it lacks criteria for determining which ‘national interests’ qualify, as well as any identifiable limiting principles on what constitutes ‘war.'”
Rep. Tulsi Gabbard (D–Hawaii): “I do not agree with OLC reasoning. The president is the commander in chief of our armed forces. This gives the president the power to respond militarily to attacks on the United States. Congress maintains the responsibility to declare war. As FDR demonstrated when he asked Congress for a declaration of war after Pearl Harbor, the president must seek congressional authorization for actions beyond an immediate response to an injury of [or] threat of it. Article I, Section 8, Paragraph 11 unequivocally assigns the authority to authorize war to the Congress, not the Executive. We need to maintain military readiness but also respect the separation of powers that is the bulwark of our liberties as Americans.”
Former Rep. Beto O’Rourke (D–Texas): “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.”
Sen. Bernie Sanders (I–Vt.): “While the president has the authority over the conduct of war once it has been declared, the Founding Fathers gave the power to authorize military conflicts to Congress, the branch most accountable to the people. Certainly, [while] the president must have the ability to defend our country from imminent attacks or other extraordinary circumstances, the current guidelines violate the text and spirit of the Constitution, and have been used to justify military action that clearly falls under the authority of Congress’s War Powers.”
Former Rep. Joe Walsh (R–Ill.): “The OLC opinions on this matter leave too large a door for the executive branch to walk through when justifying unpopular use of force…Congress must have a meaningful role in contexts in which we are considering sending our troops to war. As President, I would commit to seeking congressional authorization before starting armed conflicts in new theatres against new adversaries.…It is inexcusable to exploit a statute passed just three days after the terrorist attacks of September 11th [the 2001 AUMF] to [support] military action abroad without congressional approval.”
Sen. Elizabeth Warren (D–Mass.): “There are some situations—such as repelling an attack on the United States and protecting the lives and property of Americans abroad—that have been recognized for more than a hundred and fifty years to allow for the use of force without prior congressional authorization. But in recent decades the Justice Department has significantly expanded that category. These newer justifications, which consider national interests and the anticipated nature, scope, and duration of hostilities, are so broad and flexible that they offer few logical or practical limits and can be used to initiate conflicts that Congress should have to authorize.”
Former Massachusetts Gov. Bill Weld (R): “It is imperative that the government of the United States be able to respond swiftly and decisively to hostile threats to our safety, security, and other essential interests. This does not require evisceration of our Constitution’s unambiguous assignment of war making powers to Congress. This power has been inappropriately compromised and eroded over a number of successive Presidential administrations and various Congresses in the hands of each of the major parties. The O.L.C.’s reasoning is simply a recent manifestation. The Office of Legal Counsel’s contra-Constitutional reasoning and its conclusions are incorrect.”
Marianne Williamson (D): “Any offensive use of the military by the President requires prior express congressional authorization.…The President, however, may respond unilaterally in self-defense to repel foreign aggression that has already broken the peace….All of history shows the executive branch chronically concocts excuses for war to aggrandize power and earn a place in history, including limitless power to kill, spy, detain, or torture citizens and non-citizens alike free from congressional or judicial accountability. A presidential war not declared by Congress is the classic definition of an impeachable offense that should result in the President’s trial in the Senate and removal from office.”
The other four candidates who participated in the survey—Sen. Michael Bennet (D–Colo.), Sen. Cory Booker (D–N.J.), Montana Gov. Steve Bullock (D), and former Rep. Bart Sestak (D–Pa.)—suggested that they take a relatively narrow view of the president’s war powers. But Bennet said his view is only “slightly more narrow” than the OLC’s, Bullock did not say when congressional approval is required, and Booker and Sestak both left the door open to unapproved military action in defense of “interests.”
Judging from this survey, the most full-throated critics of unconstrained presidential war making are Gabbard, Sanders, and Williamson, although Warren and the two Republicans are not far behind. And since presidents are unlikely to be less interventionist than they indicate during their campaigns, people who are appalled by what the military does in the name of “defense” should be wary of candidates who talk like Biden, Harris, Klobuchar, and Ryan.
Do these words matter? Maybe not. “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,” Harvard law professor Jack Goldsmith, who ran the OLC during the George W. Bush administration, told the Times. “Institutional prerogative often defeats prior reformist pledges.”
A bigger problem than presidents who break campaign promises to restrain themselves is a Congress that refuses to restrain them. The War Powers Resolution was enacted in 1973, but Congress did not even try using it to curtail a president’s military adventures until earlier this year, when both houses approved a resolution condemning U.S. participation in Yemen’s civil war. Although it was ultimately vetoed, that resolution, combined with the resolution against Donald Trump’s declaration of a border wall emergency (also vetoed), provided some reason to hope that the current president is erratic enough to awaken a slumbering Congress.
“I will encourage members of Congress to reassert and exercise their constitutional role in decisions to commit their constituents and communities to supporting our military operations,” Buttigieg said in the Times survey. The fact that Buttigieg, who takes a relatively constrained view of presidential war powers, did not leave open the possibility that Congress might decline to support military operations favored by the president speaks volumes about the legislative branch’s abdication of responsibility.
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Oil Algos Confused By Mixed Inventory Data, Hold Near Bolton’s Bottom
Oil prices have erased the overnight gains sparked by API’s bigger-than-expected crude and gasoline builds as ministers from OPEC+ are gathering in Abu Dhabi with deeper production cuts off the agenda for now.
“The market is expecting a gasoline draw as Dorian made its way up the East Coast affecting gasoline imports, while accelerating demand during the report period,” according to Andy Lipow, president of Lipow Oil Associates
API
Crude -7.23mm (-2.8mm exp)
Cushing -1.4mm (-980k exp)
Gasoline -4.5mm (-800k exp)
Distillates +600k (+100k exp)
DOE
Crude -6.91mm (-2.8mm exp)
Cushing -798k (-980k exp)
Gasoline -682k (-800k exp)
Distillates +2.704mm (+100k exp)
For the third week in a row Crude, Cushing, and Gasoline saw inventories decline but distillates saw a significant build in the last week.
Source: Bloomberg
Bloomberg Intelligence’s Energy Analyst Fernando Valle explains that another large drop in crude should be supportive of prices, although the disappointing refined products numbers may take some of the optimism away. Gasoline disappointed slightly as refiners continued to clear out summer grade. Distillate had a large build as refinery utilization ramped and exports fell.
Crude production was flat in the last week, holding near record highs as oil rig counts stumble lower…
Source: Bloomberg
Oil prices are testing the post-Bolton lows after OPEC+ appeared to take further production cuts off the table and while they kneejerked lower, then higher, WTI prices fell back to pre-API levels…
Finally, as Bloomberg Intelligence’s Senior Energy Analyst Vince Piazza sums up, “there’s a clear disconnect among oil fundamentals, benchmark prices and upstream equities, we believe, with market participants not having much faith in crude sustaining price momentum. Despite a significant reduction in crude inventories of 62.5 million barrels since June 14, WTI has rallied less than 10%, while upstream equities dropped more than 5% during a 3% recovery by the S&P 500 Index. Demand erosion is driving the near-term narrative as the U.S.-China trade war raises concerns about slowing global economies.”
Responding to a 2007 Boston Globe survey of presidential candidates, Barack Obama rejected the idea that the president has the authority to wage war without congressional authorization whenever he thinks it is in the national interest. “The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation,” he said.
After he was elected president, Obama took a different view, maintaining that he did not need congressional approval to attack Libya, Syria, or ISIS. He also defied the requirements of the War Powers Resolution, absurdly arguing that dropping bombs and firing missiles from drones in Libya did not constitute “hostilities” under that law.
Given that experience, we probably should take statements on this subject from the 2020 presidential contenders with a grain of salt. It is nevertheless instructive to see how they responded to a New York Times survey about executive power, since they express a pretty wide range of views and what they say now can be held against them later. The 14 Democrats and two Republicans who responded to the survey can be roughly divided into three groups: four who are signaling that they will do pretty much whatever they want when it comes to deploying the country’s military might, eight who argue that the president’s war powers are more constrained than residents of the White House historically have been willing to admit, and four who fall somewhere in the middle.
Article I of the Constitution says Congress has the power “to declare war,” while Article II makes the president “commander in chief” of the armed forces. Recent presidents have taken the position that the latter power effectively nullifies the former power, making it unnecessary to seek a declaration of war even in situations where the country does not face an imminent or actual attack.
The Times specifically asked the presidential candidates about the view, backed by the Justice Department’s Office of Legal Counsel (OLC), that “the Constitution authorizes the president, as commander in chief, to order the military to attack other countries without congressional permission if the president determines that this would be anticipatory self-defense or otherwise serve the interests of the United States—at least where the nature, scope and duration of the anticipated hostilities are ‘limited.'” The paper also asked, “Under what circumstances other than a literally imminent threat to the United States, if any, does the Constitution permit a president to order an attack on another country without prior Congressional authorization?” And it wanted to know whether the candidates thought “bombing Iranian or North Korean nuclear facilities” would require congressional approval.
Here are the most telling responses, divided into unconstrained and constrained views of the president’s war powers.
UNCONSTRAINED
Former Vice President Joe Biden (D): “The Constitution vests the President, as Commander in Chief and Chief Executive, with the power to direct limited U.S. military operations abroad without prior Congressional approval when those operations serve important U.S. interests and are of a limited nature, scope, and duration…Only in the most exigent circumstances would I use force without extensive consultation with Congress.” Since “U.S. interests” are in the eye of the beholder and the president unilaterally decides when military operations are “limited” enough that they do not qualify as “war,” this formulation amounts to a blank check. And notice that Biden promises “consultation” with Congress, which is emphatically not the same thing as seeking formal approval.
Sen. Kamala Harris (D–Calif.): “The President’s top priority is to keep America secure, and I won’t hesitate to do what it takes to protect our country in the face of an imminent threat in the future. But after almost two decades of war, it is long past time for Congress to rewrite the [2001] Authorization for Use of Military Force that governs our current military conflicts. The situations in Iran or North Korea would require careful consideration of all of the surrounding facts and circumstances.”
Sen. Amy Klobuchar (D–Minn.): “I agree with the Office of Legal Counsel’s determination that the President is authorized to direct the use of force where the nature, scope and duration of the anticipated hostilities are limited. I also believe that the President has a solemn duty to protect and defend the United States and that the Constitution requires Congress to authorize war.”
Rep. Tim Ryan (D–Ohio): “The President has a unique obligation to defend the country and it should be handled on a case-by-case basis on the actual security risk it poses to the country.”
CONSTRAINED
South Bend, Indiana, Mayor Pete Buttigieg (D): “I am concerned that the Executive Branch has stretched the President’s unilateral war-making authority too far.….[The OLC’s position] acknowledges the reality that a President may need, in rare and extraordinary circumstances, to take swift action in response to attacks or imminent threats of attack. But while it may reflect history, it strays from our Constitution’s design. Moreover, it lacks criteria for determining which ‘national interests’ qualify, as well as any identifiable limiting principles on what constitutes ‘war.'”
Rep. Tulsi Gabbard (D–Hawaii): “I do not agree with OLC reasoning. The president is the commander in chief of our armed forces. This gives the president the power to respond militarily to attacks on the United States. Congress maintains the responsibility to declare war. As FDR demonstrated when he asked Congress for a declaration of war after Pearl Harbor, the president must seek congressional authorization for actions beyond an immediate response to an injury of [or] threat of it. Article I, Section 8, Paragraph 11 unequivocally assigns the authority to authorize war to the Congress, not the Executive. We need to maintain military readiness but also respect the separation of powers that is the bulwark of our liberties as Americans.”
Former Rep. Beto O’Rourke (D–Texas): “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.”
Sen. Bernie Sanders (I–Vt.): “While the president has the authority over the conduct of war once it has been declared, the Founding Fathers gave the power to authorize military conflicts to Congress, the branch most accountable to the people. Certainly, [while] the president must have the ability to defend our country from imminent attacks or other extraordinary circumstances, the current guidelines violate the text and spirit of the Constitution, and have been used to justify military action that clearly falls under the authority of Congress’s War Powers.”
Former Rep. Joe Walsh (R–Ill.): “The OLC opinions on this matter leave too large a door for the executive branch to walk through when justifying unpopular use of force…Congress must have a meaningful role in contexts in which we are considering sending our troops to war. As President, I would commit to seeking congressional authorization before starting armed conflicts in new theatres against new adversaries.…It is inexcusable to exploit a statute passed just three days after the terrorist attacks of September 11th [the 2001 AUMF] to [support] military action abroad without congressional approval.”
Sen. Elizabeth Warren (D–Mass.): “There are some situations—such as repelling an attack on the United States and protecting the lives and property of Americans abroad—that have been recognized for more than a hundred and fifty years to allow for the use of force without prior congressional authorization. But in recent decades the Justice Department has significantly expanded that category. These newer justifications, which consider national interests and the anticipated nature, scope, and duration of hostilities, are so broad and flexible that they offer few logical or practical limits and can be used to initiate conflicts that Congress should have to authorize.”
Former Massachusetts Gov. Bill Weld (R): “It is imperative that the government of the United States be able to respond swiftly and decisively to hostile threats to our safety, security, and other essential interests. This does not require evisceration of our Constitution’s unambiguous assignment of war making powers to Congress. This power has been inappropriately compromised and eroded over a number of successive Presidential administrations and various Congresses in the hands of each of the major parties. The O.L.C.’s reasoning is simply a recent manifestation. The Office of Legal Counsel’s contra-Constitutional reasoning and its conclusions are incorrect.”
Marianne Williamson (D): “Any offensive use of the military by the President requires prior express congressional authorization.…The President, however, may respond unilaterally in self-defense to repel foreign aggression that has already broken the peace….All of history shows the executive branch chronically concocts excuses for war to aggrandize power and earn a place in history, including limitless power to kill, spy, detain, or torture citizens and non-citizens alike free from congressional or judicial accountability. A presidential war not declared by Congress is the classic definition of an impeachable offense that should result in the President’s trial in the Senate and removal from office.”
The other four candidates who participated in the survey—Sen. Michael Bennet (D–Colo.), Sen. Cory Booker (D–N.J.), Montana Gov. Steve Bullock (D), and former Rep. Bart Sestak (D–Pa.)—suggested that they take a relatively narrow view of the president’s war powers. But Bennet said his view is only “slightly more narrow” than the OLC’s, Bullock did not say when congressional approval is required, and Booker and Sestak both left the door open to unapproved military action in defense of “interests.”
Judging from this survey, the most full-throated critics of unconstrained presidential war making are Gabbard, Sanders, and Williamson, although Warren and the two Republicans are not far behind. And since presidents are unlikely to be less interventionist than they indicate during their campaigns, people who are appalled by what the military does in the name of “defense” should be wary of candidates who talk like Biden, Harris, Klobuchar, and Ryan.
Do these words matter? Maybe not. “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,” Harvard law professor Jack Goldsmith, who ran the OLC during the George W. Bush administration, told the Times. “Institutional prerogative often defeats prior reformist pledges.”
A bigger problem than presidents who break campaign promises to restrain themselves is a Congress that refuses to restrain them. The War Powers Resolution was enacted in 1973, but Congress did not even try using it to curtail a president’s military adventures until earlier this year, when both houses approved a resolution condemning U.S. participation in Yemen’s civil war. Although it was ultimately vetoed, that resolution, combined with the resolution against Donald Trump’s declaration of a border wall emergency (also vetoed), provided some reason to hope that the current president is erratic enough to awaken a slumbering Congress.
“I will encourage members of Congress to reassert and exercise their constitutional role in decisions to commit their constituents and communities to supporting our military operations,” Buttigieg said in the Times survey. The fact that Buttigieg, who takes a relatively constrained view of presidential war powers, did not leave open the possibility that Congress might decline to support military operations favored by the president speaks volumes about the legislative branch’s abdication of responsibility.
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