OPINION — Prior to President Trump, only two Presidents have initiated use of the special emergency authority [U.S. Code Title 10, Section 2808] to transfer un-obligated military construction money to new projects without Congressional approval.
The original legislation, passed in 1981, at the height of the Cold War, was titled “Construction authority in the event of a declaration of war or national emergency,” when the country was fearful of a devastating nuclear “first strike” from the Soviet Union.
The 1981 House Armed Services Committee report on the measure said the unusual authority was provided to address contingencies “ranging from relocation of forces to meet geographical threats to continuity of efforts after a direct attack on the United States during which the Congress may be unable to convene.”
It was on that basis that President George H.W. Bush in November 1990, employed the authority in response to Iraq’s invasion of Kuwait, when he directed, at first, $98 million in December 1990 to Central Command construction projects, primarily in Saudi Arabia.
President George W. Bush used it in the week after the 9/11 terrorist attacks on the U.S. The first $27 million was sent in November 2001 to build aircraft parking ramps and hangars in the Middle East. Another $35 million was committed in December 2001 to upgrade security at in six states where there were storage sites housing “weapons of mass destruction,” i.e. chemical, biological and nuclear.
In the years since, the emergency declaration has been used to construct 16 other overseas projects, totaling some $1.4 billion, all dealing with the fight against al Qaeda terrorists and their offspring groups, according to a recent Congressional Research Service report.
Trump, in his proclamation Friday said he wants to be able to use up to $3.6 billion of unobligated military construction money in fiscal 2019 and, as I read it, only “as needed,” and only after he has used up some funds that seem more readily available to him.
Trump may never get the $3.6 billion, nor do I think he expects or needs the funds. We are almost halfway through fiscal 2019 and Trump’s chances of getting additional funds in the next few months are doubtful.
Rep. Will Hurd (R-Texas), a member of the House Appropriations Committee, pointed out another factor during an appearance on CBS’ Face the Nation. “You can't spend $8 billion in the next six months. And so, I think [what] you're going to see, in the next appropriations cycle, is restricting some of those funds.”
Trump may have created this “national emergency” to divert attention, particularly among his base, trying to get them to forget his legislative defeat in Congress when it came to the fiscal 2019 appropriations bill. Why is this a possibility?
First, is because he knew, and previewed Friday, that employment of the “national emergency” measure would take on a life of its own. First, House Democrats will introduce a House-Senate Joint Resolution disapproving his using this “emergency” approach, which will focus attention on Capitol Hill for a time.
Then, there will be the lawsuits brought by governors and perhaps even private citizens.
Finally, there are the funds themselves, starting with the $1.375 billion in the appropriation bill Trump signed into law last week. The White House fact sheet released Friday, said that money would be used “for approximately 55 miles of border barrier in highly dangerous and drug smuggling areas in the Rio Grande Valley, where it is desperately needed.”
Nothing can stop that from happening.
Then Trump identified the $600 million in the Treasury Department’s drug forfeiture program for use on his wall. The law setting up that fund has limitations on its use, which up to now, has been primarily to do training and travel for drug agents after covering costs of the forfeiture program itself.
After that, Trump identified another $2.5 billion in the Defense Department that has been appropriated for its counter-narcotics program. [Title 10 United States Code, section 284] That money, according to the law, can be used for, “Construction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.” Remember, however, Trump plans to use appropriated funds for the dangerous Rio Grande Valley, so what other “drug smuggling corridors” exist?
Finally, there is the up-to $3.6 billion Trump seeks via Section 2808. Technically, there is plenty of money available. At the end of 2018, according to the Congressional Research Service, there was some $13 billion of un-obligated military construction funds going back to 2014, of which $6.7 billion was in family housing. There is another $10 billion in military construction for the current, fiscal year, ending September 30, 2019, some of which inevitably has not yet been obligated.
However, bipartisan members of the House and Senate Armed Services committees have criticized Trump for saying he would use some of these funds for his wall. House Armed Services Chairman Adam Smith (D-Wash.), pointed out “there has been no attempt to explain how the wall has anything to do with supporting U.S. military needs, as the law intends.”
The fiscal 2018 Law Deskbook of the Defense Department said that construction under Section 2808 “is necessary to meet urgent military operational requirements of a temporary nature involving the use of the Armed Forces in support of a declaration of war, [or] the declaration by the President of a national emergency.”
The ranking House Republican on the committee, Rep. Mac Thornberry (R-Texas), said diverting “significant” Defense Department funds for the wall “would undercut one of the most significant accomplishments of the last two years: beginning to repair and rebuild our military.”
Other aspects of Trump’s description of the situation during his Friday Rose Garden statement are worth noting.
First is his claim that he spoke to some generals who thought the wall was “far more important than what they were going to use it [the construction money] for,” he said, describing the conversation. “I said what were you going to use it for? I won’t go into details, but [it] didn’t sound important to me.”
How do we know such conversations took place?
One more Trump statement is worth thinking about.
He talked repeatedly of how he had gotten $700 billion for the military and $716 billion last year and saying that what he needed was “$2 billion, $3 billion out of that.” He then added, “When you have that kind of money going into the military, this is a very, very, small amount we are asking for.”
When has a President, as Commander-in-Chief, talked as if the Defense Department was his own property or business; that he alone raised the money, and that in the end, he should spend it as he pleases? This is, perhaps, the most concerning issue of all, and is the real emergency we should all be focused on.
Read more Fine Print Opinion from Walter Pincus in The Cipher Brief...
