Andrew C. McCarthy's Blog, page 18

Steve Malzberg & I shoot the breeze

My buddy Steve Malzberg of New York radio fame has crossed into cyberworld at Spreecast.com. I'll be appearing on his show at noon today to talk about, well, everything. Details here. 

Stay Out of Syria

Like all long-suffering fans of the New York Mets, I am on Cloud Nine courtesy of Johan Santana, whose recent no-hitter -- in the team’s 8,020th game, during its 51st season -- was the first in Mets history. My enthusiasm did not ebb, not by a fraction of a quark, when Hugo Chávez briefly interrupted his Bolivar-Marxist thuggery to join the chorus celebrating Santana, a very different kind of Venezuelan lefty.

That’s because what Chávez and I share is just a rooting interest. It does not make us what my friend Clifford D. May might call “strange bedfellows.” Cliff’s recent NRO column, “The Battle of Syria,” not only misses this distinction; it miscasts advocacy for American non-intervention in Syria as de facto alliance with that country’s brutal dictator, Bashar al-Assad, and, by extension, with Assad’s equally barbaric backers in Iran.

When I argued, in the column to which Cliff is responding, that Mitt Romney and the Republican party’s transnational-progressive wing had aligned themselves with al-Qaeda and the Muslim Brotherhood against Assad, I was not saying that, as between competing evils, these GOP heavyweights had a mere rooting interest in seeing Sunni supremacists prevail over Shiite supremacists. I was pointing out that they were bent on empowering one set of America’s enemies against another. This is no passive preference. The Butch & Sundance team of John McCain and Lindsey Graham are not just cheering on their team, the way Chávez and I were pulling for Johan; the senators want to arm the predominantly Islamist, demonstrably murderous Syrian “opposition” -- to strengthen America’s enemies with training and weaponry that America would either coordinate or provide directly.

Yet, in a “two can play that game” retort, Cliff asserts that he and other pro-interventionists could just as colorably say that my argument aligns me with MoveOn.org, Russian strongman Vladimir Putin, and Iran’s “Supreme Leader,” Ayatollah Ali Khamenei. It is a wayward analogy, for several reasons.

#ad#Let’s consider, again, the objective of the non-interventionists. Cliff misstates it as “opposing efforts to facilitate regime change in Syria.” The non-interventionist is not opposed to Syrian regime change. He is indifferent to it. And that is not because those of us who resist unnecessary U.S. entanglements in Islamist hotbeds are “isolationists,” as the Wilsonian parody posits.

To be sure, we are skeptical of the presumption, championed by progressives, that because the United States is the most important country in the world, every conflict on earth is our business -- which is to say, our burden, and in the eyes of many progressives, our fault. But mainly we believe American interventions ought to be driven by vital American interests. Many times, those vital interests are best served by butting out. That is particularly the case in the Muslim Middle East, where hatred of America has a unifying effect on our otherwise fractious enemies.

In Syria, this plays out two ways. First, there is no realistic prospect of regime change favorable to the United States; intervention thus necessarily portends making one set of America’s enemies stronger than they currently are. Second, it is in America’s interest that al-Qaeda, the Muslim Brotherhood (including Hamas), the Assad regime, the Iranian mullahs, and Hezbollah all become weaker; non-intervention while they beat each other’s brains in is therefore to our great advantage.

#page#Try a thought experiment. Let’s say there were no ongoing Syrian conflict and none on the horizon. Let’s imagine that, instead of working 24/7 to facilitate Muslim Brotherhood domination of Libya, Egypt, and Tunisia, the Obama administration or Butch & Sundance actually used their time to develop a can’t-miss plan to drive a wedge between the Hamas terrorist organization and its lifeline, Iran. Not the pie-in-the-sky we usually get from these quarters -- the kinds of plans that bank on Assad’s being a “reformer,” the Brotherhood’s being “largely secular” moderates, or the Libyan “rebels” being Madisonian democrats. I’m talking about a plausible plan that had decent probability of success. What would that have been worth? In light of how well busting up the Iran-Hamas partnership would have served U.S. interests, we’d probably have been willing to wager four or five of Obama’s Solyndra schemes on that -- though maybe not the cost of a McCain global-warming boondoggle.

Well guess what? The Syrian conflict has fomented just this trouble in jihadi paradise, and we haven’t had to pay a dime. Hamas is now the problem of its Sunni-supremacist patrons -- and they are in no position to provide the Palestinian “resistance” with Iran-level help, not with Egypt broke and Turkey’s economy verging on a major contraction. The Hamas divorce weakens Iran, as does Assad’s teetering. Moreover, the growing divide between pro-Brotherhood Hamas and pro-Assad Hezbollah weakens both, and is thus a setback for global jihadism. Meanwhile, the seamless alliance between the Brotherhood and al-Qaeda, as well as that between Turkey and the array of Sunni supremacists, crystallize for us the folly of seeing either Ankara or any emerging Ikhwan government as a friend of the United States.

#ad#By letting events play out naturally -- rather than trying to orchestrate them with our usual ham-handed, politically correct, Islamists-are-people-too approach -- we find that the anti-Americans are at each other’s throats. I’d love to be able to say this was the result of shrewd maneuvering. In fact, it probably owes to inertia -- or to Obama’s realization that another Libya-style misadventure would damage his jittery reelection prospects.

Whatever the reason, the always thrumming but rarely spoken truth of Middle Eastern politics is shouting loud and clear in Syria: Islamic factions abhor the United States even more than they despise each other. When we get involved, they set aside their internecine hatreds and unite against us. When we have enough wit to stay out, however, they set upon each other with a savagery that shocks the West but is, in their culture, quotidian.

Like many champions of Syrian intervention, Cliff is a very smart guy who is making a very basic error: His conviction about the evil on one side of the Syrian conflict is blinding him to the extent of evil that pervades the other side. This, alas, is the story of the Arab Spring.

The most pronounced symptom of Spring Fever is conscious avoidance of the brute fact that mainstream Islam in the Middle East is virulently anti-liberty and anti-American. The symptom manifests in an uncontrollable urge to obscure overwhelming evidence that the ideology we like to call “radical” Islam actually predominates -- in reality, it is democratic reform that is radical in this part of the world. In a classic example, which relies on the rose-tinted analysis of Arab Spring enthusiast Amir Taheri, Cliff writes:

In the first round of presidential balloting, the Brotherhood candidate drew only “around a quarter of the electorate” -- hardly a ringing vote of confidence for a movement that “has acted as the main opposition for almost a century” and that has “immense resources” at its disposal.#...#Andy rightly observes that a substantial Egyptian voting block is “deathly afraid” of the Islamists.

#page#You read that and you’re thinking: “Hmm, a substantial part of Egypt’s population is against the Islamists; and the Brotherhood got only a quarter of the vote -- hardly a ringing vote of confidence for the leaders of the Islamists. Maybe the prospects for democracy in Egypt and the Middle East aren’t so bad after all.” Well#...#not exactly.

Cliff’s last sentence actually refers to my observation that a non-Islamist candidate, Ahmed Shafiq, got “23 percent” of the vote in the first round of presidential balloting. In Cliff’s telling, my “23 percent” has become “substantial.” But how “substantial” is the non-Islamist vote, really? Well, it turns out to be markedly less than the “only around a quarter” -- actually, 26 percent -- that Cliff grudgingly concedes the Muslim Brotherhood candidate, Mohammed Morsi, got. (About 23 million people voted in the election, so a three-point difference translates to about 700,000 people -- not insignificant.)

#ad# But there’s more that Cliff glides by without noting. Morsi got “only” 26 percent of the vote because the Islamist vote -- a vast majority of the electorate -- was split among several candidates. And, pace Amir Taheri, Morsi’s haul, though just a portion of the votes cast in favor of Islamists, was actually quite impressive: The military junta currently ruling the country disqualified two Islamist candidates who were widely popular; the less charismatic Morsi was the Brotherhood’s Plan B -- but he won anyway.

That an Islamist would win, despite the purportedly “substantial” fear of Islamists, was to be expected, in light of the parliamentary elections. Cliff doesn’t mention those either, but Islamist factions won three-quarters of the vote. In fact, the non-Islamists were out-voted not only by the Brotherhood but by so-called “Salafist” Islamists who are even more extreme. Oh, and about that 23 percent of Egyptians who voted against the Islamists? They didn’t vote for democracy; they voted for Ahmed Shafiq, a relic of the Mubarak regime favored by the military junta. That is, they voted for the dictatorship that is claimed to have given rise to the Arab Spring in the first place -- because even that is better than what Sunni supremacism has in store for them.

Cliff misdiagnoses Syria the same way. He argues: “Within the loose coalition fighting Assad, there are freedom fighters -- I’m personally acquainted with some. But yes, Islamists are in the mix as well. Should Assad fall, who will end up on top? We can’t be certain.” This, again, conflates our hopes with our reality.

I am personally acquainted with Zuhdi Jasser -- he is an authentic Muslim moderate and American patriot. But I do not permit my admiration for him to mislead me into thinking he represents anything more than a thin ray of hope along a cold, dark firmament. I do not try to convince myself that because his eccentric brand of Islam resonates with me, it must have a realistic prospect of gaining traction in the Middle East, where the Islamic supremacists of al-Azhar University, the Brotherhood, and the Organization of Islamic Cooperation call the doctrinal tune. I support Jasser, but I wouldn’t bet my country’s security on the prevalence of his interpretation of Islam -- I hope for the best, but I plan for the Brotherhood.

#page#The fact that Cliff knows there are true democrats in the Syrian mix does not make them representative of the Syrian mainstream -- no more than Egypt’s outlier democrats can camouflage the predominance of that country’s Islamists. To say Islamists are merely “in the mix” in the Syrian opposition is like saying there might be a spendthrift or two in the Greek government. Of course Cliff is right that no outcome is “certain” before it happens. But Syria is a 74 percent Sunni Muslim country, and the Islamist influence is patent. If real democrats were a force in the opposition, Sheikh Qaradawi would not be a powerful influence over it, and al-Qaeda’s presence would not be felt, much less welcomed. We’ve already seen this show play out in Libya, Egypt, and Tunisia. With the Brotherhood long entrenched at the front of Assad’s opposition, and with the Obama administration and the McCain wing effectively endorsing the Brotherhood-dominated Syrian National Council, there is no more doubt about who would be running post-Assad Syria than there is about who would win if the New York Giants played your local high-school football squad.

Obviously, Cliff and other interventionists who care passionately about American national security do not want to help deliver Syria into the Brotherhood’s clutches. They relieve themselves of grappling with this foreseeable consequence of their policy preference, however, by rationalizing that “Iran is the single most important strategic threat facing the U.S. -- hands down.” Since “Iran’s most important ally and asset” is the Assad regime, the reasoning goes, ousting Assad is an imperative, regardless of what replaces him.

#ad#With great respect, this line of thinking fails to appreciate that threat environments are not static. It is not 2001 anymore. As I’ve argued before, Iran did pose a singular threat back then. Now, it has an able competitor in the struggle against the West. It is in our interest that both of them be taken down several notches -- especially if they’re willing to do it to each other.

No one appreciates more than I do that Iran remains a paramount threat. Indeed, it is odd to find Cliff suggesting that I have aligned myself with Ayatollah Khamenei when, as he knows, no one this side of Michael Ledeen has been more insistent than I have that Iran is a dangerous, incorrigible enemy of the United States. And unlike Michael, I’ve been resigned to the inevitability that it will take military force to eradicate the current regime: I don’t believe sanctions will ever be sufficient (certainly not with Russia and China committed to undermining their effectiveness); I’m not convinced that moral and logistical support for the regime’s opponents would result in the mullahs’ toppling; and, contrary to most of my friends on the national-security right, I have no great hope that whatever came after the mullahs would be pro-American -- just that it would be unlikely to adopt the current dictators’ “Death to America” foreign policy. That’s why I support destroying the regime that has been at war with us for 30 years and promptly leaving -- it’s for the Iranians to sort it out. I think we should have done that over a decade ago, when Iran collaborated in the 9/11 attack, if not in 1996, when they murdered 19 members of our air force at Khobar Towers in Saudi Arabia. I would not have sat on my hands and prayed for sanctions to work while the mullahs killed our troops in Iraq and Afghanistan for ten years.

In Cliff’s view, Iran’s being “within a hair’s breadth of obtaining nuclear weapons” dwarfs all other considerations. I disagree. I’ve never thought the nukes were the biggest problem when it came to Iran -- they are just another very powerful reason to do what needs to be done. But what would make me more fearful than Iranian nukes would be if Iran were within a hair’s breadth of infiltrating the counsels of our government’s policies, of dramatically influencing our government’s counterterrorism protocols, and of abrading the constitutional liberties of the American people. Fortunately, Iran is not in that position. Ominously, though, the Muslim Brotherhood is not just within a hair’s breadth -- it is inside the wire. Unlike Iran, our Sunni supremacist enemies have spent the last 60 years building a significant infrastructure inside our country. They have made significant inroads in our institutions -- particularly, academe, finance, media, the law, and the think tanks.

#page#Sunni supremacism is now ascendant in the Middle East. The fallout of the military’s attempted coup in Egypt this week remains to be seen. What is clear, however, is that the generals were moved to act by the palpable danger to Egyptian and regional stability posed by an Islamist government whose ambitions include Israel’s destruction. Egypt’s Sunni supremacists have bonded with Turkey’s Islamist government, Hamas, Libya, Tunisia, and other Brotherhood hubs, particularly Qaradawi’s headquarters in Qatar -- now also home to the Taliban’s leadership. They have grown into a force to be reckoned with -- virulently anti-American and anti-Western.

The prospect of mullahs with nukes alarms me no less than it alarms Cliff. But I am less alarmed by prospects and potentials than I am by what is already happening in Europe, where the Brotherhood’s stealth jihad is achieving the gradual conquest that Qaradawi predicted it would. The triumph of Sunni supremacism in the Middle East also strengthens the hand of the Sunni supremacists massed inside our borders. We should be regarding them as hostiles, but they’ve been welcomed as consultants. It is not Iran that is besieging the counterterrorism strategy by which Ray Kelly’s NYPD has kept the jihad’s No. 1 target safe for the last eleven years. It is not Iran that has the Pentagon so intimidated it cannot bring itself to utter the words “Islam” and “jihad” in a 75-page report on the jihadist mass-murder at Fort Hood, the worst Islamic terror attack in the U.S. since 9/11.

#ad#Cliff, in conclusion, offers up a parade of horribles that could follow from Iran’s acquisition of nuclear arms. I agree that they are all bad, and to be avoided. But none of them remotely improves the case for intervention in Syria. If Iran attacks the Gulf states, dares to close the Strait of Hormuz, or has the temerity to threaten our Fifth Fleet, we should -- and I expect we would -- attack Iran directly and decisively. We don’t need, in Syria of all hellholes, to wage a proxy war against Iran that has the effect of strengthening our other set of enemies.

And it is odd for Cliff, in making a case for intervention in Syria, to raise the specter of a nuclear-armed Iran increasing its influence in Iraq and Afghanistan. It is precisely our interventions in Iraq and Afghanistan that so strengthened Iran’s hand in those countries. To be sure, the post-9/11 mission to smash al-Qaeda’s safe haven and crack down on rogue regimes that facilitate jihadism was essential. We should not have dawdled for over a year before taking out Saddam, and Iran was a much more committed and threatening enemy -- the war would have gone a lot better if we had attacked the challenge at its main source, which, for all the reasons Cliff marshals, was Iran. But the manner in which we intervened -- ignoring Iranian provocations while elevating the construction of sharia-“democracies” over the defeat of America’s enemies -- made it possible for Iran to spread its tentacles throughout Iraq while fueling the insurgencies against our troops both there and in Afghanistan.

In any event, if you really want to weaken Iran, then stay out of Syria and let it play out. Let the mullahs try to prop up the reeling Assad while the alliances with Sunni supremacists that they have spent two decades building disintegrate. It is in our interests that not only Iran but all of our enemies be weakened. What Cliff’s NRO essay labels the “Battle of Syria” is doing just that. The best thing we can do for American national security is: stay out of it and let them have at each other.

— Andrew C. McCarthy is the author, most recently, of  The Grand Jihad: How Islam and the Left Sabotage America .

Re: Sharia -- Mr. Schmitz Is Wrong on the Law, Too

I was disappointed to see NR publish the essay by Matthew Schmitz which, putting its substantive errors aside, piously complains about the "unhinged rhetoric" of his opponents right before smearing them as "anti-Muslim bigots." Happily for me, I haven't yet had time to engage -- which is a coup for readers, who have the benefit of wisdom from Andy Bostom and David French, who've responded forcefully and, to my mind, convincingly.

Nevertheless, I see that while Mr. Schmitz has evidently decided defending sharia is not very comfortable ground on which to stand, he is claiming victory on what he continues, misleadingly, to call "anti-sharia legislation" -- as if the people involved in crafting it were unaware of, or insensitive to, the line between protecting religious liberty and preventing a political ideology, under the guise of "religion," from encroaching on core American principles (e.g., free speech, equal protection under the law, freedom of conscience). To the contrary, Schmitz's contentions about the purported "legal uselessness and potential ill effects" of legislation -- which is called "American Law for American Courts" -- are as ill-informed and hyperbolic as the rest of his tirade. I asked my friend David Yerushalmi, who is the principle author of the model legislation, and whom I know to be a careful lawyer who has navigated the competing concerns with characteristic diligence, to weigh in. Here is his response:

David Yerushalmi:

As the "father" of the model legislation, American Laws for American Courts (ALAC), upon which the Kansas legislation about which Matthew Schmitz seems so particularly exercised, and as the wizard behind the curtain of the "anti-dharia" movement (per the New York Times, although I insist NRO's own Andy McCarthy remains the unchallenged leader of this evil movement), I thought I would add a few words to Dr. Andy Bostom's empirical critique of Mr. Schmitz's underlying assumptions. As a lawyer versed in the jurisprudential traditions of our own constitutional and common law, in the Talmudic law followed by orthodox Jews, and in usul al fiqh, or Islamic jurisprudence, I thought I might touch upon the utter incoherence of Mr. Schmitz's arguments.

Given Mr. Schmitz's style of disputation, it would be useful to take note of the architecture of Mr. Schmitz's essay as we critique it. Thus, the first three paragraphs attempt to describe the law. But here, Mr. Schmitz fails miserably and he does so by leaving out a critical ingredient. Specifically, he characterizes Kansas's ALAC as a law that prohibits the application of foreign laws or the enforcement of foreign judgments in state courts if those laws or judgments violate a state or federal constitutional right. That is not what ALAC prohibits. ALAC precludes the state courts from giving effect to foreign laws or foreign judgments only when the application of those foreign laws or foreign judgments would deprive a party in a Kansas court of a constitutional right or liberty.

#more#In other words, a state court might very well apply sharia or the law of England, as courts do all of the time in the appropriate circumstance (i.e., the parties agree to such laws in a contract), as long as the particular aspect of sharia or the law of England does not undermine our own state and federal constitutions in the matter being adjudicated.

And, the reader will immediately realize that the Kansas ALAC is agnostic about whether the foreign law is a religious law or a secular foreign law. ALAC simply makes clear that those constitutional liberties that may not be waived, or may be waived but only under certain circumstances (e.g., after a fully informed consent), may not be undermined via the application of foreign laws or the enforcement of foreign judgments. Put simply, no court should allow a party to waive due process or equal protection. These are baseline constitutional protections ALAC seeks to protect. To put a more blunt tip to this point, would we allow a criminal defendant to waive her right not to be subject to cruel and unusual punishment or her right to a civil trial based upon fundamental fairness? The answer is no. And, this answer should not be undermined through the back door by granting constitutionally offensive foreign judgments or laws judicial credence.

In the last of the first three paragraphs addressing the description or nature of ALAC, Mr. Schmitz attempts to drag into the fray Jewish law and Christian canon, presumably to enlist other opponents to ALAC. But there is literally no instance of Jewish law or Christian canon being applied in a state court where a litigant is likely to be deprived of a constitutional liberty. And, the reason this is so is because neither of these religious laws occupy the space of authoritative state law. Sharia is problematic precisely because it is the secular law in almost all of the Muslim world, either as the law of the land simply or as the authoritative law in matters of family relations and citizenship or what is sometimes referred to as "identity law" in those Muslim countries which require their citizens to declare a religious affiliation for their "identity" cards -- such that the law treats Muslim citizens differently from non-Muslims. 

But, even assuming there were such an occasion where a party ran into a state court and sought to enforce a Jewish court ruling which violated a party's constitutional liberties, why should any state court grant such a ruling state approval, which in turn triggers the police power of enforcement? The proper response should be that if two religious adherents wish to submit their disputes to a religious tribunal, fine. And, like any arbitral award, the winning party may use the state court to enforce that ruling but only if that ruling accords with our fundamental constitutional liberties. State courts ought not to be in the business of using the state's police power to enforce laws that violate our constitutional rights.

Moreover, ALAC makes explicit that it may not be interpreted to infringe on what the courts have determined are legitimate applications of religious freedom. Thus, if a church dispute erupts and lands in a state court, the abstention doctrine announced by our Supreme Court precludes a state court from intervening unless that intervention is based on a dispute that can be resolved on wholly secular, religiously-neutral grounds.

The next architectural layer of Mr. Schmitz's essay consists of the next eleven paragraphs (nos. 5--16), which is not actually a criticism of ALAC per se, but a poorly constructed argument that ALAC is not necessary. Thus, paragraph five begins by providing the underlying motivation for the law: the fear of "creeping sharia." Well, yes and no.

ALAC understands there is a growing problem in state and federal courts of transnationalism, or the globalization of both politics and law. Apparently Mr. Schmitz is not aware of the SPEECH Act of 2010, sometimes referred to as Rachel's Law (named after Rachel Ehrenfeld, the law's great proponent). The SPEECH Act was in reality a kind of federal ALAC but limited to the First Amendment and free speech rights. It was necessitated by the fact that authors, researchers and publishers who published facts about the financing and sponsoring of jihad from the golden tents of Saudi Arabia, Qatar, and Dubai, would find that they had been sued in England where the libel laws are so liberal they permit the suppression of free speech that would never pass muster in the U.S. But, once they obtain a judgment in England, they would travel to the U.S. and find a state court to grant the judgment comity, turning the plaintiff into a judgment creditor who could use the police power to have the sheriff physically enforce the judgment. The practice was so prevalent and dangerous it became known as libel tourism. In response, Congress passed the SPEECH Act which, like ALAC, prohibited granting those judgments comity if they did not provide the protections of our own First Amendment.

And, why was this necessary? Because state courts were not sure how to deal with this problem of transnationalism. While all state courts have adopted the common law doctrine of "void as against public policy" -- a doctrine which allows a court to ignore a foreign law or judgment that might otherwise be given effect if that foreign law is repugnant to the public policy of the state -- courts were not sure what the public policy was or should be. And, this lack of clarity was built into the "void as against public policy doctrine" because courts did not want to be in the business of legislating public policy limits. Thus, in every state you can find appellate court decisions making clear that the state legislature must define the parameters of what the state public policy is. Courts should only tepidly step into this arena. ALAC takes up this judicial invitation to have the legislature make clear that any foreign law, religious or secular, that violates a party's constitutional liberties is void as a matter of public policy.

Mr. Schmitz attempts, though, to make his "not necessary" point by claiming that the few cases he knows about have been overturned on appeal. But this ignores the study cited by Dr. Bostom and published by the Center for Security Policy, of which I am general counsel, that tracked 50 cases of this sort. Now, any lawyer will tell you that if there are 50 published opinions from the appellate courts, there will be thousands of cases just like the New Jersey case where the judge applied sharia over U.S. law that are never published or appealed because the losing party simply didn't have the wherewithal to fight the court's ruling. 

Even more to the point, in Mr. Schmitz's reply to Dr. Bostom, his response to the brute facts cited is to ignore those published cases and to pretend that this tip of the iceberg is little more than an ice cube melting away on a hot sidewalk outside a single court in a single state. But those are not the facts. So it is that Mr. Schmitz ignores an appellate court decision from Maryland, also , where the court enforced a Pakistani sharia court's judgment of custody in favor of the father even though the mother had argued that she was not provided due process because had she gone to Pakistan to contest the case, she could have been subject to capital punishment for having a new relationship with a man not sanctioned by sharia. In the court's own words:

Additionally, appellant [the mother] asserts that the Pakistani custody orders were founded on principles of law repugnant to Maryland public policy because the Pakistani courts allegedly “penalized the mother for not appearing without considering the affect of her admission to adultery on her ability to return to Pakistan.” In this regard, appellant points out that if convicted under Pakistani criminal law, her penalty could be public whipping or death by stoning.

Although Dr. Malik [the expert] opined that appellant would be arrested for adultery if she returned to Pakistan for the custody proceedings, he also conceded that punishment for adultery was extremely unlikely and that proving the crime was extremely difficult. Given this testimony, the circuit court was not clearly erroneous in not considering the effect of whether appellant’s admission to adultery [under sharia] was “repugnant” to Maryland public policy in its failure to find that the Pakistani courts punished her for not appearing."

In other words, the Maryland appellate court ruled that since the woman could not prove she'd be executed had she gone to Pakistan to litigate custody in the Pakistan Sharia Court, which is a national-state court in Paksistan, her failure to go to Pakistan and take the risk of execution precluded her from making the void as against public policy argument. ALAC would have provided the Maryland appellate court the legislative clarity to have reversed the lower court's outrageous decision.

In short, Mr. Schmitz argues that ALAC is unnecessary by simply ignoring the real world and the real lives being destroyed by the application of sharia and other constitutionally offensive laws in state courts every day.

The final portion of Mr. Schmitz's argument (the last five paragraphs), and the one he focuses on in his reply to Dr. Bostom, is simply incoherent. Having told us sharia is nothing to worry about and having told us that ALAC simply does what the law now does anyway (both false assertions), Mr. Schmitz argues that ALAC will undermine our national security by alienating "peaceful Muslims." How does a law that protects constitutional liberties alienate "peaceful Muslims?" Especially a law that is not specifically directed toward religious law but only constitutionally offensive foreign laws?

The remainder of this last layer of Mr. Schmitz's argument takes quotes from two men who are not lawyers and who have, apparently, said stupid things. But even assuming these quotes are legitimate and these men are worth listening to, what does that say about the law itself? Nothing.

Finally, and for the record, the Oklahoma constitutional amendment which was challenged the day it was enacted and enjoined by a federal court from being formally adopted because it was likely unconstitutional, is substantively and procedurally unlike ALAC. Yet, Mr. Schmitz lumps the Oklahoma effort with the legislation that has passed in Kansas, Tennessee, Arizona, and Louisiana, all modeled after ALAC. The earliest of these laws have been on the books now for several years and have not even been challenged much less overturned. The reason is simple: They are constitutional and good policy to boot.

Meantime, Happy Spring Everyone!

The Arab Spring was supposed to be the transition from dictatorship to freedom. It has become clear that it is a shift from one kind of tyranny to another -- that of Sunni supremacists led by the Muslim Brotherhood. In Egypt, the military junta that was supposed to be the temporary, transitional bridge from Mubarak to "democracy" has decided not to be so temporary.

The high court, which the military regime controls, has invalidated Parliament -- that would be the legislature to which Egyptians elected Islamists by about a 4-to-1 margin. It has seized full legislative authority for itself. It will now hand-pick a 100-person assembly to write the new constitution (rather than leave that task to the Brotherhood/Salafist-dominated lawmakers elected by the people). Yes, the second and final round of the presidential election will still go forward -- pitting the Brotherhood candidate against the Mubarak regime candidate. But the oddity of the presidential election was always that it was being held before the constitution, which will define the presidency's powers, was written. If a new constitution is actually written, expect the presidency to be a ceremonial post, especially if the Brotherhood candidate, Mohammed Morsi, prevails -- as he almost certainly will if the election is above board. 

CNN has the breaking details about the coup.

Just This Once, Could We Try Following the Constitution?

I have great respect for Senator John Cornyn (R., Texas). Furthermore, I think you'd have to go a long way to find a more consistent critic of the Obama administration's recklessness as custodian of the nation's defense secrets than I have been. Yet, if I were asked to vote on the legislation proposed by Senator Cornyn and Senator John McCain to force the Obama administration to appoint an "independent prosecutor" to investigate intelligence leaks to the New York Times, I would, without hesitation, vote "nay." 

The institution of "independent prosecutor" is an unconstitutional monstrosity. If it is actually independent of the executive branch, it is constitutionally invalid because, as Justice Scalia explained in his prescient 1988 dissent in Morrison v. Olson, criminal investigation and prosecution are executive functions and the Constitution vests all executive power in the president. Consequently, the only kind of "special" prosecutor President Obama or his subordinate, Attorney General Holder, could appoint would have to be one that answered to Obama and, no doubt, to Holder. That prosecutor would not be "independent" because the only power he would be authorized to exercise is Obama's power. Congress cannot endow someone else with executive power -- the Constitution has given it to the president, period.

As a matter of politics, moreover, Obama and Holder would never satisfy Republicans and the public with any prosecutor they would appoint. The only way they could do so would be to appoint someone of such undeniable rectitude that the matter of his or her being technically beholden to Holder and Obama would be overlooked. That is not going to happen -- not with this, the administration that has politicized law enforcement more than any other in history. 

#more#What Senator Cornyn is asking for is thus legally illegitimate and politically implausible. It is also tactically blunderous. An ongoing criminal investigation gives witnesses a justification for refusing to cooperate with any congressional inquiry into the leaks. They end up saying that, because of grand-jury secrecy or the advice of counsel, they cannot provide any information. The goal of holding the Obama administration politically accountable for acting irresponsibly with the nation's vital secrets would become difficult, if not impossible, to attain. 

The Constitution gives Congress plenty of ways to hold the administration's feet to the fire while performing the essential role of spotlighting for the public the inexcusable things the administration has done. It can conduct hearings, call witnesses -- the Times stories make obvious which witnesses ought to be summoned -- and ask them under oath about their handling of classified information and conversations with the media. If the administration stonewalls, as it is doing in Fast & Furious, it can start cutting the administration's funding and begin impeachment hearings to inquire further about whether unfit executive-branch officials should be removed from office -- which is exactly what Congress should be doing in connection with Fast & Furious instead of the ongoing "contempt" theater.

I am not saying that criminal prosecution is unimportant. I personally think it is unlikely; if, as I suspect, President Obama authorized the disclosures that were made to the Times, there can be no prosecution for disseminating classified information because the president is empowered to authorize disclosures. That is why it is much more important at this stage to hold the president politically accountable than to worry about prosecuting the subordinates who actually did the leaking. But federal criminal law generally applies a five-year statute of limitations to crimes:  There will be plenty of time down the road for a Romney Justice Department, headed by credible attorney general who returns the Justice Department to its traditional rejection of partisanship in the administration of justice, to determine whether there are prosecutable classified-leak cases that merit being indicted.

The other thing to remember about a potential Romney administration is this: It will need to govern. Given the shape we are in, it will need to sweep clean the last four years and make very tough decisions about the future. The worst thing congressional Republicans could do right now to a President Romney's ability to function is lay the groundwork for the Left to demand the appointment of an independent counsel in connection with every contentious issue -- real or manufactured -- that inevitably will come up. There are strong legal, political, and tactical arguments for opposing such demands. But if Republicans undermine those arguments now, President Romney and the country will pay a heavy price later.

Holder's Not the Only One Who's Got a Lot to Answer For

Not to be a broken record on this, but we knew exactly what the Holder of 2009--2011 would be because we experienced the Holder of 1998--2000. A couple of months back, when the attorney general teamed up with Al Sharpton to bully Florida into a race-based second-degree murder indictment against George Zimmerman based on risibly insufficient evidence, I reminded folks of what I tried to warn them about when Holder was nominated:

[Holder's] prior tenure as Clinton deputy attorney general — a record of corrupting the pardon process, politicizing the Justice Department (even to the point of arranging commutations for convicted FALN terrorists), and misleading Congress — made it embarrassingly obvious that he was not fit to be attorney general. Yet, Senate Republicans ignored warnings to this effect and marched in merry lockstep with Democrats to confirm him overwhelmingly.

Now, so predictably, Al Sharpton is smiling. We have no justice and no peace.

Congress's main job is not to hold corrupt officials in contempt. Particularly in the Senate, it is to stop nominees with a track record of corruption from being confirmed in the first place. As for Holder, he is Obama -- he's just implementing the president's policies. We have exactly the attorney general you get when you vote for Obama.

Oh, Those Wily Wascally Webels!

McCain's Heroes, aka the Libyan Mujahideen, have attacked the U.S. embassy office in the "rebel" stronghold of Benghazi -- the launchpad from which many of said "rebels" traveled to Iraq to fight against our troops. You'll be shocked to hear this, I know, but Fox reports that "the incident comes amid renewed unrest in Libya." Reuters speculates that the bombing may have been in retaliation for the killing of al-Qaeda heavyweight Abu Yahya al-Libi by a U.S. drone attack in Pakistan.

Seems the airport was seized for a time by what Fox describes as a "militia of ex-rebels." Confusing, I realize, since they were a "rebel army" five minutes ago and are just a "militia of ex-rebels" -- but, hey, as we saw with Senator McCain, one minute you're yukking it up in Qaddafi's tent and thanking the dictator for all the intel he's giving us on the jihadists, the next minute you're calling for Qaddafi's demise so the jihadists can take over the country.

The "interior and defense ministries" were apparently called in by our new Libyan "allies," the Transitional National Council -- you may remember them as the guys who installed repressive sharia law the second we installed them. Fox says these "ministries . . . oversee a broad constellation of brigades made up of former rebels." That's a rather delicate way of putting it: The top "rebel defense minister" in Tripoli used to be Abdul-Hakim Belhadj, an al-Qaeda ally who once ran the jihadist Libyan Islamic Fighting Group.

Anyway, on to Syria!

A 'Fast & Furious' I Told You So

Corner dwellers will not be the least bit surprised by Robert's report that wiretap applications submitted to federal court by the Justice Department demonstrate that DOJ officials knew about the reckless investigative tactics used in the Fast & Furious investigation.

Last November, Attorney General Holder and one of his top underlings, Criminal Division Chief Lanny Breuer, tried to mislead the country into believing that Main Justice's sole role in reviewing electronic surveillance applications is to ensure their "legal sufficiency" -- which most people would take to mean: to make certain that the district U.S. attorney's office and the investigative agency seeking wiretap authorization have stated probable cause that a crime is being committed and that the wiretap will yield evidence of it.

But as I explained at the time, this is not true. Under the extensive requirements of federal eavesdropping law, Justice Department officials have a duty to evaluate the law-enforcement tactics that have been used in the investigation and to explain to the court why they must be supplemented by wiretaps if the investigation is to succeed. To reiterate what I said in that post:

The reason federal law requires a sign-off by the Attorney General (or his designee at Main Justice) before a wiretap application may be made to a court is precisely to evaluate the tactics used in the investigation in order to render an informed judgment that electronic eavesdropping is warranted. Most investigative techniques do not require Main Justice approval; the investigations are overseen by supervisors in the relevant district U.S. attorney’s office (and by supervisors at the FBI or other investigative agencies actually doing the investigating). Wiretaps are different — Congress requires Attorney General approval. That is because wiretaps are intrusive, resource-intensive and very expensive, so the law demands that the Justice Department exercise meaningful supervision.

#more#

More to the point, a wiretap application cannot have what Breuer calls “legal sufficiency” unless Main Justice evaluates the tactics being used. The federal wiretap statutes (called “Title III” for short, and codified at Title 18, U.S. Code, Sections 2510 et seq.) expressly direct that before a wiretap may be authorized, the application must set forth “a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.” The judge cannot authorize the wiretap unless he finds that the Justice Department has made a convincing showing in this regard.

That is, there is a bias against wiretaps in the law. If other investigative techniques are succeeding in gathering enough evidence to prosecute, or could succeed if tried, the Justice Department is not supposed to ask for, and the court is not supposed to permit, electronic surveillance. Therefore, when it asks a court for permission to plant a bug, the Justice Department is legally required to explain what investigative tactics have been used to that point, how well they have succeeded, why they have been deficient, and why other techniques would not work. This is a key part of what the application must demonstrate in order to be legally sufficient. To be concrete, let’s say you’ve got a mafia or terrorism investigation. Justice explains to the court that it has been trying to monitor the suspects, but you can’t hear what they say by watching them, and the witnesses they’ve approached are afraid to talk; these mobsters or jihadis are not going to spill the beans just because they get a grand jury subpoena, and that it is too perilous (and unlikely) for an undercover FBI agent to try to infiltrate their top hierarchy; thus, because bugging the phones the bad guys use, or the locations where they meet, is the only practical way to advance the investigation, taps should be authorized.

Neither prosecutors nor the people at Main Justice who review wiretap applications can make these representations to the court without assessing: the direction and goals of the investigation; the law-enforcement tactics that have been used to that point in the investigation; what those tactics have accomplished; how useful those tactics have been in gathering evidence and moving the investigation toward its goals; why those tactics are not as promising as electronic surveillance; and how electronic surveillance might complement them to lay bare the entirety of the criminal scheme the Justice Department hopes to prosecute.  

Over my 18 years as a prosecutor, I worked on many wiretap investigations. Main Justice approval was never a rubber-stamp. It was not unusual for those who reviewed applications at Main Justice to disagree with the prosecutors handling the case in the field about whether electronic surveillance was warranted. Sometimes, those disputes had to be resolved at the level of the district U.S. attorney appealing directly to the Deputy Attorney General or the Attorney General. Obviously, Mr. Breuer is presuming that most people in America — and, indeed, most people in Congress — do not really understand how the wiretap approval process works. But to anyone who has actually been through that process a few times, Breuer’s claim that Main Justice does not second-guess investigative tactics is laughable.

Except . . . this is no laughing matter.

In the 8,020th Game in Met History

... the team's first no-hitter! MLB has the last out of Johann Santana's gem, here. Naturally, having cheered and suffered through (too) many of the previous 8,019 games, this one put me in mind of one of the most memorable: as a 10-year-old in the magic season of 1969, I was home keeping score the night Tom Seaver almost pitched a perfect game: an otherwise nondescript rookie named Jimmy Qualls broke it up with a soft single to left with one out in the ninth -- and made me cry. Tom Terrific's nearly-perfect remembered here -- before a throng of nearly 60,000 at Shea, back when New York was still a National League town!

Romney’s Syria Problem

Congratulations to Mitt Romney. In calling for “opposition groups” to be armed and trained for their ongoing jihad against Syrian dictator Bashar al-Assad, the GOP’s presidential contender has managed to align himself with al-Qaeda emir Ayman al-Zawahiri and Muslim Brotherhood icon Yusuf al-Qaradawi.

Like the legacy media, the McCain wing of the Republican party, and the rest of Washington’s progressive, Islamophilic clerisy, Governor Romney is reacting to a regime-engineered massacre last week. Assad’s forces reportedly killed 108 Syrians in Houla, a rural enclave outside the “opposition” city of Homs. Victims included women and children shot at close range, in summary-execution style.

There is no gainsaying that Assad is despicable or that the Houla episode was barbaric. Neither can it be denied, however, that Romney and his advisers have had little to say about the similarly barbaric attacks carried out by the “opposition.” About two weeks before Houla, for example, a car bomb killed 55 people in Damascus -- targeting a regime intelligence building, but detonated at rush hour, in the al-Qaeda fashion, for maximum civilian carnage. A few days later, nine more people were killed when a suicide bomber exploded his device in a parking lot near a military compound in Deir ez-Zor, a notorious jihadist hub from which thousands of terrorists crossed into Iraq to fight against Western forces.

#ad#Yes, Assad’s minority Alawite Muslim regime is a key ally of Iran’s revolutionary Shiite-supremacist government. That does not alter the stubborn fact that the anti-Assad “opposition groups” are dominated by Sunni supremacists. Stubborn facts cannot be evaded by clever labeling -- “opposition groups” in Syria having become the euphemism du jour that “rebels” was in Libya, “peaceful protesters” in Egypt, “uprisings” in Tunisia, and so on. Nor can we confidently assert any longer that what is bad for Iran must be good for us. Threats are dynamic, and much has changed in the last decade. The Iranian regime is not the only virulently anti-American revolutionary movement realistically threatening to enslave the Middle East in its version of totalitarian sharia and implacable anti-Semitism.  

The Muslim Brotherhood, leader of the Sunni supremacists, has a hammer-lock on the Syrian National Council (SNC), the main opposition group the Obama administration has been courting -- with the McCain wing cheering from the sidelines. Meanwhile, as trumpeted on the Brotherhood’s website, Sheikh Qaradawi has been organizing Syria’s Islamist revolt for months, reprising the starring role he is playing in Egypt. Al-Qaeda -- whose help the Brotherhood is happy to have when it is expedient, as it was in Libya -- put its muscle into the Syrian revolt months ago. As the invaluable John Rosenthal reported here at NRO, Obama’s national intelligence director, James Clapper, has acknowledged al-Qaeda’s infiltration of the Syrian opposition. The terror network’s hand in the recent string of bombings is obvious, even to the Associated Press. Its presence and influence at opposition rallies are also patent.

Washington can idealize the Syrian “opposition” into liberty-loving freedom-fighters; to Syrian Christians, they are the jihad. With churches being torched, families being terrorized by kidnappings and murders, and thousands of believers being put to flight, Christian are now suffering the same fate “Islamic democracy” held for the Christians of Egypt and Iraq. (Jews face no such problem; after decades of humiliating dhimmitude, they have long since been driven out of Syria.) 

#page#Yet, here comes Romney, jumping with both feet into the Islamist camp. This week, he slammed President Obama for purportedly failing to work with our two fabulous “allies,” the Brotherhood-tied Islamist regime in Turkey and the jihad-propagating Wahabist regime in Saudi Arabia, in order to oust Assad. Obama’s temporizing, according to Romney, had “merely granted the Assad regime more time to execute its military onslaught.”

This is a specious critique. Put aside that Romney is wrong -- the administration should stay on the sidelines. The reality is that Obama has been working behind the scenes with the Saudis and the Turks. The administration is supporting the Brotherhood-controlled SNC -- just as it threw its weight behind Islamists in Egypt and Libya. What Obama has been smart enough to do, at least to this point, is refrain from direct military aid, undoubtedly realizing that he would be blamed when, inevitably, it became clear that American arms went to America’s enemies. But McCain and the Brotherhood goaded the president into using force in Libya -- where the victorious “rebels” quickly installed sharia law and parceled out Qaddafi’s arsenal to Hezbollah, Hamas, and al-Qaeda. Another misadventure in Syria, it seems, is only a matter of time.

#ad#In their anxiety over our nation’s future, conservatives see the upcoming November election as a make-or-break crossroads. Thus, the Right’s indifference to Mitt Romney, the only alternative to Obama's reelection, is striking. But it is not bewildering, and stories like Syria’s go a long way toward explaining it. Desperation to avoid the third Carter term does not translate into enthusiasm over the specter of the third Bush administration.

It was during George W. Bush’s second term that the original Bush doctrine of eradicating terror networks and their supporting regimes was fully superseded by the revised Bush doctrine of “Muslim outreach” and Islamist empowerment -- gussied up as “democracy promotion.” It was during the second Bush term that the coherent, completed anti-terrorist mission of dislodging Saddam Hussein gave way to the incoherence of the “freedom agenda.” That was policy made of the pretense that Islamic hearts and minds could be won over by a kinder, gentler style of war-fighting, one that elevated the safety of hostile Muslim populations over the security of our troops and the vanquishing of our enemies. It was under Bush, not Obama, that the executive branch began indulging Islamist demands that the government purge references to Islamic doctrine in discussions of jihadist terror. It was Bush’s State Department, not Obama’s, that first sustained the Clintonian approach of appeasing Iran: a blind eye to the mullahs’ facilitation of terror against our troops and a blind faith in the capacity of sanctions to bring them to heel.    

These policies were not merely unwise; they were immensely unpopular. Americans strongly favored military action against jihadists and their enablers. They never supported nation-building schemes and never agreed with the ruling class that propping up sharia states disguised as democracies was an appropriate use of our armed forces. And while official Washington lauds leaders of Islamist organizations as “moderates” who are willing to seek “change” through the political process rather than violence, Americans see them as extremists trying to sow sharia principles into our law and institutions. Thus, despite an unrelenting smear campaign by which Islamists -- abetted by leftists -- seek to silence their critics with accusations of bigotry and “Islamophobia,” Americans continue to support state initiatives to bar courts from relying on sharia law, to oppose provocations such as the Ground Zero mosque, and to applaud initiatives such as Senator Rand Paul’s worthy proposal to cut off U.S. aid to Pakistan because of its enforcement of such sharia strictures as the death penalty in blasphemy cases.

So unpopular was the second Bush term that it gave us, first, the Democratic takeover of Congress in 2006, and then, in 2008, the Obama administration. The Republican establishment sloughed these electoral thumpings off to the country’s being “war weary.” But the country has never been war weary -- when we are threatened, we want the threats dealt with decisively. What we are is Islam weary.

#page#Americans are not predisposed against Muslims -- in sharp contrast to mainstream Islam’s animus toward the West. We welcome with open arms anyone, of any creed, who is willing to assimilate to our culture of liberty -- to the outrage of Turkey’s prime minister, Recep Tayyip Erdogan, who regards asking Muslims in the West to assimilate as a “crime against humanity.”

We are exhausted, though, from defending ourselves against Muslim mass-murderers while walking on eggshells for fear of offending tender Muslim sensibilities. We are tapped out, emotionally and financially, from making enormous sacrifices on behalf of ingrate Muslim peoples, who gravitate to our enemies even as we labor to improve their lot. And we are sick to death of the suggestion that we need to apologize for our country when most of the violence that currently besets the world -- a great deal of which is Muslim-on-Muslim savagery -- is directly traceable to Islamic culture. We have never been at war with Islam, and we have no desire to conquer or occupy Muslim territory; but neither do we want any more entanglement with Islamic countries than is absolutely necessary. We hope Islam reforms, we hope Muslims stop killing each other. But we’re tired of that being our problem -- especially since it’s a problem we can’t fix.

#ad#By refraining from American involvement in Syria -- or, at least, overt American involvement -- we have deprived the competing factions of the opportunity to unify around the superpower they love to hate. As a result, they are fighting among themselves. Hamas has pulled up stakes from Syria, its longstanding partnership with the Assad regime and Iran in tatters because of its support for the Syrian “opposition” (i.e., the Muslim Brotherhood, of which Hamas is the Palestinian branch). Relations between Hamas and Hezbollah, a key Assad ally, have frayed. Assad is increasingly crippled, which deeply wounds Iran. Erdogan’s honeymoon with Assad is over, and Turkey must tend to the strains in its formerly cozy relations with Iran and Iraq (while quietly replacing Iran as Hamas’s sugar daddy -- proving, yet again, it is no ally of ours). The Saudis, who have bankrolled the Muslim Brotherhood’s global promotion of Islamic supremacist ideology, are panicked by the Brotherhood’s ascendancy, frosting their relations with Egypt and complicating their efforts to aid Syrian Islamists.

If we had tried to come up with a plan for simultaneously weakening all the anti-American, anti-Western players in the region, we’d never have been able to come up with something this effective. And it needn’t cost us a single American life or a single American dollar. All we need to do is stay out of it.

In Egypt, just across the sea from Syria, after the first “democratic” election yielded overwhelming Islamist control of the legislature, the next “democratic” election has produced a standoff between the Muslim Brotherhood candidate and the Mubarak regime candidate (to be decided in a runoff election later this month). That didn’t happen because of the United States. It happened because, in the Middle East, there is no freedom culture: The authentic democrats are vastly outnumbered by the Islamic supremacists. The only thing that prevents the tyranny of the Islamists is the tyranny of the strongmen -- which is why 23 percent of Egyptians, deathly afraid of the former, voted for the latter.

As in Egypt, there is no good outcome for us in Syria. There is the atrocious dictator or the atrocious Islamists. There is no “better” side for Romney to choose. By throwing in his lot with the Islamists, he signals that he has failed to learn the hard lessons of the last decade. Americans do not want four more years of an administration that looks at enemies and sees friends. We don’t want “outreach”; we want out.

Romney’s support for the Syrian “opposition” will undoubtedly play well inside the Beltway. But the groan you hear is from the rest of the country, where elections are won and lost.

— Andrew C. McCarthy is the author, most recently, of  The Grand Jihad: How Islam and the Left Sabotage America .