TCP Newsletter
August 2017
Dear Friend of TCP,Top

Our hearts go out to those who were killed or injured during the events in Charlottesville earlier this month, as well as those experiencing fear and intimidation in light of those attacks. We as a nation must come together to denounce those who espouse hate and violence, including neo-Nazis, anti-Semites, racists, and the others who marched with them and who support their message of hate and bigotry.  In the past week, Republicans and Democrats, conservatives, independents, and liberals alike have condemned these marchers and their attacks on those who stand for the values of freedom, tolerance, justice, diversity and peace. We at TCP condemn them too, and stand with the courageous individuals and organizations that fight to combat the evils presented by hate speech and violence.

Virginia Sloan
In This Issue
Current Events

All of us at TCP are thrilled that to mark this year's Constitution Day, on September 18, we will honor Dr. Morton H. Halperin and former Congressman Mickey Edwards as TCP's 2017 Constitutional Champions.  This year marks TCP's 20th anniversary, so it is more than fitting that we are honoring Mort and Mickey, two of TCP's original founders. And we are equally thrilled that helping us to honor Mort and Mickey will be Wade Henderson, the recently retired head of the Leadership Conference on Civil and Human Rights, and Susan Eisenhower, the international policy advisor who is CEO and Chair of the Eisenhower Group, Chair Emeritus at Gettysburg College's Eisenhower Institute, a former Fellow at Harvard's Institute of Politics, and a Distinguished Fellow at the Nixon Center (now the Center for National Interest).

The event, as always, will feature locally-sourced fare and our now-famous gelato bar.  It will be held on September 18 from 6:30-9 pm at the law firm of Jones Day, 300 New Jersey Avenue, NW, Washington, DC.

Tickets may be purchased here.

For more information, contact

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Remembering Mark White, by Ginny Sloan Article1
Current Events

I'm so sad that former Texas governor (1983-1987) and Attorney General (1979-1983) Mark White died on August 5. He was the co-chair of TCP's Death Penalty Committee for many years.  Known as a law and order governor - on whose watch 19 people were executed - he started, on his own, making comments to Texas newspapers about his concerns about the unfairness of the criminal justice system.  And so, though I didn't know him, I called him to ask him to consider joining the committee. After reading the report, he promptly called me back to say he would join on one condition - that he could co-chair it.  He was telling me that he was committed to changing a system that he believed was filled with errors, racism, and unfairness and that he wanted to work hard to change it. And so he did.  He was always there when we asked him to help, and gradually, as word got out about his efforts with TCP, he began to get requests from other organizations too.  He always said yes to them too.  

He was a wonderfully engaging man, sending my colleague Sarah Turberville and me funny news reports about life in Texas, taking us out for a meal when he was in Washington or we were in Texas, regaling us with stories about politics and life, which in his mind were usually one and the same. 

He was hilarious and delightful to work with.  He was committed and hard-working, because he cared deeply about injustice.  His work after a life in politics serves as a wonderful reminder that much good can come from "recovering politicians."  He truly was one-of-a-kind.  

We will miss him a lot.

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TCP Joins Coalition Letter Demanding Information on Investigation into Human Rights Abuses in Yemen  Article2
TCP joined a coalition letter to Secretary of Defense James Mattis as well as the CIA and FBI directors asking for the public release of any investigation into "allegations that US-allied forces of the United Arab Emirates (UAE) and UAE-backed Yemeni forces have been responsible for serious abuses in Yemen... [including] arbitrary detentions, torture, mistreatment, enforced disappearances, and unlawful prisoner transfers." The letter also called on the agencies to disclose 
"any actions the United States has taken with respect to any UAE or Yemeni forces implicated in serious abuses."  

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TCP Cites Failure to Oversee Federal Transfer of Military Equipment to State and Local Law Enforcement Article3
Policing Reform
TCP is one of very few advocacy organizations consistently following policy changes regarding the transfer of military equipment to state and local law enforcement agencies and pushing for greater accountability and transparency. During the Obama administration, we were actively engaged with the Department of Justice to provide feedback on reforms to federal programs that allow state and local law enforcement to acquire military equipment. President Trump has publicly promised to roll back any of President Obama's incremental reforms and return to a period of no oversight or accountability.

The Department of Defense's 1033 program (one of the largest and most prominent military equipment acquisition programs) has come under scrutiny because the GAO created a fictitious law enforcement agency and was able to obtain over $1.2 million of controlled items from the Defense Department. Because major news outlets did not cover the GAO report, TCP Senior Counsel Madhu Grewal contacted The Marshall Project, which published, along with Wired, a widely-shared story.

The House Armed Services Committee, Subcommittee on Readiness then held a July 27th hearing to discuss the GAO report and the 1033 program. During his questioning of DOD representatives, Representative Anthony Brown asked the Defense Department witness to specifically address TCP's concerns and the TMP/Wired article.  

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TCP Organizes Amicus Support for Groundbreaking Bail Reform Litigation Article4
Sentencing Reform

TCP coordinated a broad amicus strategy on behalf of the appellees in O'Donnell v. Harris County, a Fifth Circuit case regarding the constitutionality of the money bail system in Harris County, Texas. Earlier this year, a federal judge ruled that the policy of detaining people charged with misdemeanors who cannot afford to pay bail violated the due process and equal protection rights of indigent defendants. Harris County Sheriff Ed Gonzalez joined nearly 20 other current and former law enforcement and corrections officials on an amicus brief opposing money bail. Harris County District Attorney Kim Ogg joined nearly 70 other prosecutors on a similar brief. TCP also helped facilitate amicus briefs from prominent conservatives and faith leaders. The briefs were covered by several news outlets, including a Reuters wire piece reprinted in the New York Times.

We are grateful for the pro bono assistance of Skadden, Sidley Austin, Munger Tolles & Olson, and the Georgetown Institute for Constitutional Advocacy and Protection.

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Over three years after The Constitution Project assembled a variety of supporters for a stay of execution of Scott Panetti -- a seriously mentally ill death row inmate in Texas-the 5th Circuit Court of Appeals has finally ruled that Panetti must be afforded time and resources to demonstrate whether he is too mentally ill to face execution. TCP organized materials, including  letters and ultimately an amicus brief of notable conservative thought-leaders in support of Panetti, whose execution was finally stayed in December 2014. The US Court of Appeals for the 5th Circuit reviewed his claim and on July 11, 2017, determined that Panetti was denied due process in the state's rush to execution (indeed, Panetti's lawyers learned of the execution date upon reading it in the newspaper) and the courts' denial of resources to Panetti to assist counsel in determining if he was too insane to be executed.

The court took note of our efforts; in his opinion, Judge Higginbotham stated that:
"There can be no justification for executing the insane, and no reasoned support for it, as only a glance at the brief of amici -- filed by able and fervent citizens spanning the spectrum of political views-will confirm." We could not agree more and TCP and counsel in the case are grateful for our friends on the right and left who stepped in to support Panetti's case. 

Notably, had the state sought an execution date for Panetti now, this litigation would be unnecessary.  Because of the State's rush to execute and failure to inform Panetti's counsel of this intent, the Texas legislature has since passed a law to prevent such miscarriages of justice and requiring proper notice to defense counsel of the setting of an execution date in future cases. But Panetti did not receive the benefit of this new law. With the 5th Circuit's ruling, we remain hopeful that Panetti will receive actual due process and resources to demonstrate his severe mental illness and its effect of his rational understanding of his planned execution. 

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TCP Board Member Mickey Edwards Speaks To Federalist Society on Constitutional War Powers Article6
Checks & Balances

Mickey Edwards, TCP Board Member, former Member of Congress (R-OK), and now Vice President and Program Director of the Rodel Fellowships in Public Leadership at the Aspen Institute, joined a panel sponsored by the Federalist Society on July 7, 2017, on the Constitutional War Powers of the Executive and Legislative Branches.  Panelists discussed what kind of war power the Constitution grants the President and Congress, what limitations apply to each branch concerning the power to declare war and the use of military force, over time, how has the Framers' understanding been followed and in what ways has it been ignored, and do the founding principles regarding these topics still have application to our modern era?  The event was covered by C-SPAN.  Congressman Edwards co-chairs TCP's War Powers Committee, whose report, Deciding to Use Force Abroad: War Powers in a System of Checks and Balances, is available here. 

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It's more important than ever that Congress reassert its constitutional prerogative to decide on war. We've been hard at work pushing Members to do so.
Over the last fifteen years, both Republican and Democratic presidents have stretched the 2001 Authorization for Use of Military Force (AUMF) beyond its breaking point. That law was intended to target those responsible for the September 11 terrorist attacks, but it is now being used to justify military operations against some groups that had no role in 9/11, and others that did not even exit on 9/11. On July 25, the House Foreign Affairs Committee held a hearing on whether a new or revised AUMF is necessary in light of current terrorist threats. TCP submitted a statement, which Ranking Member Elliot Engel entered in the record, urging members to weigh in, but to do so in a clear-eyed manner about the backdrop against which they would be legislating and as a force for constraint:
"We are concerned that many recent AUMF proposals seem to be written on the assumption that Congress needs to figure out how best to provide the executive branch with greater flexibility to use force, particularly for counterterrorism purposes ...[T]he problem is not that Congress has tied the president's hands too tightly in this area. The problem is that Congress has failed to tie the President's hands tightly enough." 

TCP Vice President Scott Roehm adapted the testimony into a blog post for Just Security, which ran on August 11.
Most recently, six members of TCP's War Powers Committee -- led by co-chairs David Skaggs and Mickey Edwards -- sent a letter to Defense Secretary Jim Mattis underscoring the limits on the power of a president to order a nuclear strike absent congressional approval. The letter was responsive to recent comments from Admiral Scott Swift, commander of the U.S. Pacific Fleet, who at a public speaking engagement invoked the principle of civilian control when stating he would comply with a hypothetical order from the president to carry out a nuclear strike against China. The authors wrote that Swift's mindset is flawed: "the principle is about limiting the role of the military, not enhancing the authority of civilian leaders; it is not meant as a blanket validation of all orders that may come from a Commander-in-Chief." 

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