U.S. Congress

Suspected Russian hackers compromise FireEye tools; Federal Trade Commission and forty-eight states sue Facebook; House passes National Defense Authorization Act; Google and Facebook make progress in Australia’s pay for news law; and Crown Princes of United Arab Emirates and Saudi Arabia sued for hack and leak campaign.

Clinical trials slowed by ransomware attack on software company; Big tech condemned by house lawmakers; QAnon groups and pages to be banned by Facebook; Department of Justice confiscates domains used by Iran; and Trump administration considers restrictions on Ant Group and Tencent Holdings.

On September 8, U.S. Senators Jim Risch and Ben Cardin, joined by an impressive bipartisan group of cosponsors, introduced a resolution calling for an end to the violence in Cameroon and for inclusive dialogue to address the underlying political tensions that are at the root of the conflict between the state and anglophone separatists. They are the latest in a large and diverse group of senior U.S. officials who have worked to highlight the crisis in Cameroon. Assistant Secretary for African Affairs Tibor Nagy has engaged in direct and personal diplomacy aiming to influence the situation. Congresswoman Karen Bass, chair of the House Foreign Affairs Subcommittee on Africa, has been resolute in condemning abuses, and has worked on a bipartisan basis to clearly communicate U.S. concerns and support for peace talks to Biya’s government, including in a resolution introduced in the House of Representatives last year. The Trump Administration removed Cameroon from the list of countries eligible for trade benefits under the African Growth and Opportunity Act, and has scaled back military assistance to the country. But Cameroon is a case in which concern in Washington does not translate into effective influence. In Cameroon itself, little political progress has been made as various factions grapple for control of the talks and sometimes competing lines of effort stop and start.  Meanwhile, the people of Cameroon continue to suffer despite calls for a ceasefire in light of the COVID-19 crisis. Just this week, the army launched a new campaign in Bamenda, ostensibly to bring law and order to the city. The BBC reported that the operation involved house-to-house searches, seizures of citizens’ property, and even indiscriminate shooting. Residents of the city largely stayed home, caught between the government and separatists who have called for citizens to stay home as a form of protest, in an all-too-familiar impossible situation. This summer the Norwegian Refugee Council named Cameroon the world’s most neglected displacement crisis, noting that half a million people have been forced from their homes. It can be painful to reckon with the limited capacity of the United States, or of any external power, to bring seriousness of purpose to urgently needed political dialogue. But ultimately civil conflicts with political roots cannot be resolved without domestic will and leadership, and Cameroon’s ossified political class has thus far failed to muster either. But the efforts of U.S. officials still matter. Should those vital domestic ingredients emerge, the United States is well-positioned to support a process that prioritizes the urgent needs of civilians and gives all parties in a tremendously diverse country greater opportunity in the future.

Congress should pass legislation requiring the Department of Defense to assess the vulnerabilities of its weapon systems to cyberattacks.

The Equal Rights Amendment (ERA) is back in the headlines with new ferocity. Following Virginia’s ratification earlier this year, the House of Representatives moved swiftly to grant the amendment a new lease on life, by removing the previous 1982 deadline for ratification. Though questions remain as to whether the time has run out, one thing is clear: ratification of the ERA would incontrovertibly advance gender equality, both at home and abroad.

One hundred years ago today—on August 18, 1920—the U.S. Congress ratified the 19th amendment, making it illegal to deny U.S. citizens the right to vote on the basis of sex. It was a milestone victory for the women’s suffrage movement, which had fought for women's right to vote for decades.

Report finds election officials vulnerable to phishing emails; Trump administration asks FCC to narrow Section 230 protections for social media sites; Chinese hackers infiltrate Vatican networks prior to high-level talks; House lawmakers grill tech leaders during antitrust hearing; and Hackers target Eastern Europe in anti-NATO disinformation campaign.

The chief executives of some of the world’s most dominant technology companies will appear before the House Judiciary Antitrust Subcommittee on July 27. Congress should press them to operate in ways that adhere to principles of neutrality and non-discrimination that have served the interests of consumers and citizens around the world.

Original intent. The term pops up frequently in debates over how to interpret the U.S. Constitution. At its core, the concept of original intent holds that constitutional interpretation should be guided (or bound) by what the framers envisioned when they wrote the document back in 1787. But what happens to original intent when the framers themselves disagreed on how to interpret their handiwork? It’s not an academic question. Just look at the so-called Pacificus-Helvidius debate, which began 227 years ago today. The debate pitted Alexander Hamilton (writing under the pen name “Pacificus”) and James Madison (writing under the pen name “Helvidius.”) Even though the two men had had more influence than anyone else on the writing and ratification of the Constitution, they painted decidedly different views of the relative powers of Congress and the president in foreign policy. Their disagreement has echoes to this day. The debate originated in President George Washington’s issuance of the Proclamation of Neutrality on April 22, 1793, declaring that the United States would not take sides in the war that that had just erupted between France and a range of European powers, including Britain. The proclamation excited passions at home, all the more so when by happenstance a representative of the revolutionary French government, Edmond-Charles Genêt, traveled from Charleston, South Carolina, to Philadelphia whipping up pro-French sentiment. Then Vice President John Adams would remember it later, perhaps with a touch of hyperbole, as a time “when ten thousand people in the streets of Philadelphia, day after day, threatened to drag Washington out of his house and effect a revolution in the government or compel it to declare war in favor of the French Revolution and against England.” As Adams’s recollection suggests, much of the opposition to Washington’s decision was on the substance. Many Americans favored siding with France. The two countries had a treaty of alliance, French support had been critical to winning the War of Independence, and neutrality would help the hated British. Indeed, in an effort to forestall these criticisms and in keeping with the recommendation of Washington’s Francophile secretary of state, Thomas Jefferson, the proclamation did not use the word “neutrality” but instead declared America’s “friendly and impartial” attitude toward all the belligerents. But for many critics the Proclamation of Neutrality also raised an important constitutional question: under what authority did Washington act? The Constitution said nothing about neutrality. It did, however, lodge the power to declare war with Congress. By opting for neutrality even if he hadn’t used the term, hadn’t Washington infringed on Congress’s constitutional authority? Doubts about the propriety of Washington’s action extended to members of his own cabinet, with Jefferson writing that “my objections to the competence of the Executive to declare neutrality (that being understood to respect the future) were supposed to be got over by avoiding the use of that term.”  The first of Hamilton’s seven essays defending Washington appeared in a Philadelphia newspaper, The Gazette of the United States, on June 29, 1793. The seventh and final one appeared on July 27. The essays clearly rankled Jefferson. He wrote to Madison several times urging him to respond to Hamilton’s “heresies”: Nobody answers him, & his doctrines will therefore be taken for confessed. For God’s sake, my dear Sir, take up your pen, select the most striking heresies, and cut him to pieces in the face of the public. There is nobody else who can & will enter the lists with him. Madison initially tried dodging his friend’s request. He ultimately relented, though he told Jefferson that “I have forced myself into the task of a reply. I can truly say I find it the most grating one I ever experienced.” Madison’s five essays were published in The Gazette of the United States between August 24 and September 18. Both sets of essays addressed the substantive criticisms of the Proclamation of Neutrality. But the enduring legacy of the exchange was the differing constitutional visions the two framers sketched. Hamilton argued for a broad reading of presidential power, insisting that “the general doctrine of our Constitution…is… that the executive power of the nation is vested in the President; subject only to the exceptions and qualifications, which are expressed in the instrument.” In contrast, the role of the Senate in treaty-making and Congress in declaring war were “exceptions out of the general ‘executive power’ vested in the President, they are to be construed strictly, and ought to be extended no further than is essential to their execution.” Hamilton further argued that while the “legislature have the right to declare war, it is on the other, the duty of the executive to preserve peace, till the declaration is made; and in fulfilling this duty, it must necessarily possess a right of judging what is the nature of the obligations which the treaties of the country impose on the government.” This vision of a powerful president armed with implied constitutional powers differed markedly from the vision of presidential authority Hamilton had laid out in the Federalist Papers. There he had painted a presidency with circumscribed powers. The president’s position as commander in chief “would amount to nothing more than the supreme command and direction of the military and naval forces,” and his authority to receive foreign ambassadors would be “more a matter of dignity than of authority.” And perhaps most notably, he argued that “the history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States.” Madison responded that Hamilton had it backward—the balance of power between the executive and the legislature tilted toward Congress. The president’s foreign policy powers were restricted to those specifically mentioned in the Constitution and even those did not amount to much. For instance, Madison dismissed Hamilton’s contention that the power to receive foreign ambassadors imbued the president with broader authorities by observing “that little, if anything, more was intended by that clause, than to provide for a particular mode of communication.” For Madison, the president was essentially an agent who acted on behalf of Congress and who should not act in ways that would circumscribe its freedom of action. This vision of the presidency was more pinched than the one Madison had sketched five years earlier at the Virginia ratifying convention, showing that Hamilton was not the only framer whose constitutional views shifted with time and circumstance. (Madison’s flexibility on constitutional interpretation showed up again a few years later during the debate over the Jay Treaty.) Madison probably had the better of the argument in terms of the system the framers who met in Philadelphia in the summer of 1787 thought they were creating. But Hamilton had the better of the argument of how the system would actually unfold. Over the next two centuries, power—both constitutional and practical—shifted toward the president. It did so in good part because of a dynamic that Hamilton had recognized in the Federalist Papers, namely, that “decision, activity, secrecy, and dispatch will generally characterise the proceedings of one man, in a much more eminent degree, than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished.” The shift would be helped along by the frequent willingness of members of Congress to put aside qualms about the president’s authority to act when he delivered policy outcomes they wanted. In their jousting, Hamilton and Madison both pointed to constitutional provisions that supported their position. In doing so, they highlighted how the framers, perhaps unwittingly, had created a constitutional structure of separated institutions with overlapping powers. These overlapping, or concurrent, authorities, in turn have meant, as the legal scholar Edwin Corwin famously put it, that the Constitution extends “an invitation to struggle for the privilege of directing American foreign policy.” That struggle generate a productive tension, with the two branches checking each other’s worst tendencies—or bring out each other’s best qualities. But it also raised the possibility that one branch trump the other. As the historian Arthur Schlesinger wrote nearly a half-century ago in The Imperial Presidency, “if the President were to claim all the implications of his control of diplomacy, he could, by creating an antecedent state of things, swallow up the congressional power to authorize hostilities. If Congress were to claim all the implications of its power to authorize hostilities, it could swallow up much of the presidential power to conduct diplomacy.” I will leave it to you to decide which is the greater risk today. Noah Mulligan and Anna Shortridge assisted in the preparation of this post.