Andrew C. McCarthy's Blog, page 36

Andrew Napolitano's Mistake

I really hope tea-party groups resist taking legal counsel from hysterions such as Fox News’s resident constitutional “expert,” Andrew Napolitano. On Tuesday morning, “the Judge” could be heard on the news railing about the McCain-Levin amendment to the defense-authorization bill (an amendment strongly supported by Senators Lieberman, Graham, Ayotte, and others). Napolitano contended that Congress is proposing to turn the entire globe into a battlefield and give President Obama the authority to have the U.S. armed forces swoop down on American cities and towns, arbitrarily detaining U.S. citizens on the mere say-so that they are enemies of the state. These contentions are absurd.

The only real question about the McCain-Levin amendment is whether it is necessary at all. It does not change existing law in any meaningful way. Essentially, it reaffirms the authority Congress conferred on the commander-in-chief in the Authorization for Use of Military Force (AUMF) that was enacted days after the 9/11 attacks.

#ad#Most Americans will recall that those attacks killed nearly 3,000 of our fellow citizens in the course of suicide-hijacking strikes on the financial district in New York City and the U.S.-military headquarters in Virginia, as well as an attempted decapitation strike against U.S. political leadership in Washington. Most Americans will recall that, from coast to coast, cities and towns have been targets of numerous attempted enemy attacks in the ensuing decade. We’ll also remember that these plots against our country have occurred against a backdrop of al-Qaeda attacks in Europe, Asia, and Africa.

That is to say, no act of Congress turned the United States and the globe into a battlefield. Al-Qaeda did that. The terror network declared war against America, threatening our interests and citizens throughout the world. Its tactic of choice is terrorist atrocities -- carried out at any time in any place against any target, civilian or military.

With the enemy subjecting itself to no geographical or temporal limitations, Congress and the president have to follow suit in our national response -- if we are to protect ourselves, let alone defeat our enemies. Thus, the AUMF prescribes no such limitations. It authorizes combat operations anywhere the enemy operates. The McCain-Levin amendment does not break any new ground on that score. The law of war has been in operation in this fashion for ten years.

Significantly, though, combat operations -- which, of course, include the capture and disposition of enemy combatants -- are not authorized indiscriminately against just anyone. Under the AUMF and McCain-Levin, detention and trial under the laws of war are narrowly prescribed only for those fighting with or aiding and abetting the enemy. And we are not talking about any prospective enemy that happens to pop into the head of President Obama or any future president, such as an administration’s political detractors. To be covered under McCain-Levin, a person must have either participated in the 9/11 attacks or have been involved in hostilities against the U.S. on behalf of “al-Qaeda, the Taliban, or associated forces.”

As I’ve argued before, it is high time for Congress to amend the AUMF so that other factions known to be part of the enemy -- e.g., the Haqqani network, the Pakistani Taliban, al-Qaeda’s arguably new franchises in Iraq, Yemen, and elsewhere -- are expressly included as part of the enemy. It is regrettable that McCain-Levin does not take this step; doing so would have marked a meaningful improvement on the AUMF.

#page#Nevertheless, it is just silly to claim that the amendment as drafted places all Americans in jeopardy. Unless you are part of that infinitesimal class of American citizens who either carried out 9/11 or have fought with al-Qaeda, the Taliban, or their accomplices in the years since, the amendment has absolutely no bearing on you. That eliminates, oh, about 310 million of us from being covered by McCain-Levin. Even if, for example, you belong to an Islamist group that gets caught trying to blow up a building in, say, Chicago, the amendment does not apply to you if your group has no operational connection to al-Qaeda.

To be sure, the rule of reason must apply: If you belong to an Islamist terror cell (like the enemy defined in the AUMF and McCain-Levin) and you employ terrorism as a method of attack (ditto), it would be appropriate for the authorities to detain you as an enemy combatant for a reasonable amount of time so they can figure out whether you are in fact operationally connected to the enemy. Underwear bomber Umar Farouk Abdulmutallab and Times Square bomber Faisal Shahzad, for example, should have been detained as enemy combatants until it could be determined whether they were enemy operatives -- as the former (from al-Qaeda in the Arabian Peninsula) clearly turned out to be, while the case on the latter (from the Pakistani Taliban) is arguable. Again, however, this has nothing whatsoever to do with the vast majority of Americans (or, indeed, of people anywhere), as to whom there is not, nor could there be, a scintilla of suggestion that they may be enemy operatives. That is why, in over ten years of war, the enemy-combatant question has arisen with respect to fewer than half a dozen American citizens, all of whom turned out to have unmistakable terrorist connections.

#ad#Which brings us to the next point: McCain-Levin, like the AUMF, does not authorize anything that has not already been permitted by the U.S. courts. The Supreme Court’s World War II case of Ex Parte Quirin established that there is no constitutional bar to detaining as enemy combatants, and trying by military commission, American citizens who align with the enemy in wartime. The justices reaffirmed this principle in their 2004 Hamdi case (involving an American citizen who fought for al-Qaeda and the Taliban overseas), and by the Fourth Circuit in 2005 in the Padilla case (involving an American citizen captured in Chicago on a mission from al-Qaeda to attack U.S. cities). In affirming the government’s authority to detain American citizens who fight for the enemy as military prisoners, McCain-Levin simply codifies what the courts have already validated. Furthermore, it bears emphasis that in this war, unlike in all previous wars, enemy combatants have been given systematic access to the U.S. courts to challenge their military detention and treatment. It is ludicrous to claim, as libertarian extremists do, that the president has been given unchecked power to round up Americans, or anyone else.

Even where McCain-Levin arguably enacts new law, it turns out to be a mirage. The amendment pronounces that all enemy combatants -- seemingly including American citizens -- may be subjected to trial by military commission under the 2006 Military Commissions Act (MCA), as amended in 2009. When you actually look at the MCA, however, it expressly provides that only alien enemy combatants may be tried by military commission. Given the salience of this jurisdictional limitation, the courts are clearly not going to find that it has been repealed by implication in McCain-Levin. If Congress has any thought of prescribing military commissions for American citizens, lawmakers will have to be forthright and unambiguous about it.

#page#Moreover, even if there were not an insuperable jurisdictional hurdle to trying citizens by commission, McCain-Levin turns out to be appropriately circumspect when it comes to American nationals. Although its overriding purpose is to pressure the Obama administration to abandon its preferred course of turning enemy combatants over to the civilian justice system, the amendment takes pains to carve out an exception for U.S. citizens. The amendment states that its directive that combatants must be detained by the military under the law of war “does not extend to citizens of the United States.” Nor, in fact, does it apply to lawful resident aliens in cases involving hostile conduct occurring inside our borders. While the commander-in-chief would still be permitted under the law of war to order military detention for Americans who join the enemy, the president would not be required to do so. If he wanted to resort to civilian due process, as Obama does, he would have that option.

In sum, the McCain-Levin amendment is marginally beneficial but hardly a bombshell. It reiterates that the law of war is the American people’s preferred legal code for dealing with those designated as the enemy in the war that Congress has authorized: al-Qaeda, the Taliban, and their affiliates. It is also helpful in reaffirming that alien enemy combatants should continue to be held outside the United States and that the administration may not transfer them to the federal courts to be treated as civilian defendants.

#ad#Again, however, neither of those things changes the status quo. Nor is there any change in the wartime rights of American citizens: If they fight for the enemy, they may be treated like the enemy; but if they have no connection to the enemy, they continue to enjoy the full panoply of protections afforded by the civilian justice system. Suggestions to the contrary are false.

— Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of  The Grand Jihad: How Islam and the Left Sabotage America .

Springtime in November: Islamist Group Hosts Tunisia's Muslim Brotherhood Leader on Capitol Hill

Yes, you read that correctly: Somehow, the Muslim Public Affairs Council has been given space in the Cannon Office Building on Capitol Hill this evening to welcome Rachid Ghannouchi, the leader of the Ennahda, the Muslim Brotherhood affiliate that recently won the election in Tunisia.

MPAC is an Islamist group whose founders included disciples of Brotherhood founder Hassan al-Banna as well as admirers of Hezbollah -- some of whom referred to the Shiite terrorist organization that is an arm of Iran as a "liberation movement," rationalizing its 1983 bombing of the U.S. marine barracks in Beirut as a "military operation" rather than a terrorist attack. After 9/11, MPAC's current director, Salam al-Marayati, immediately pronounced that Israel should be on top of the list of suspects. (More background on MPAC from the Investigative Project on Terrorism, here.)

Rachid Ghannouchi is a longtime Islamist who was actually banned from the U.S. during the nineties -- when he was invited here by Sami al-Arian, the Palestinian Islamic Jihad operative who has since been convicted on a terrorism charge. Consistent with the Brotherhood's wolf-in-sheep's-clothing marketing makeover, which is a perfect strategy for winning over Westerners desperate to be convinced, he and Ennahda are putting on their moderate airs. They purport to have committed to refrain from implanting sharia, to protect women's rights, etc.

But Islamists have trouble maintaining this charade, especially when they think credulous English ears are not listening. As the Investigative Project on Terrorism reports in its story about tonight's festivities, only a few months ago, in an interview with an Arab-language website, Ghannouchi called for the destruction of Israel and expressed optimism that the Jewish state would soon disappear:

The Arab Spring "will achieve positive results on the path to the Palestinian cause and threaten the extinction of Israel," Ghannouchi said. "I give you the good news that the Arab region will get rid of the bacillus of Israel. Sheikh Ahmed Yassin, the leader of Hamas, said that Israel will disappear by the year 2027. I say that this date may be too far away, and Israel may disappear before this."

The IPT report elaborates that Ghannouchi is a cheerleader for Hamas (the Brotherhood's Palestinian branch), calling for Muslims to support the terrorist organization and excusing jihadist attacks against Israeli civilians as necessary "martyrdom operations." His Ennahda group refers to Israel as an "alien entity planted in the heart of the homeland, which constitutes an obstacle to unity and reflects the image of the conflict between our civilization and its enemies." 

No wonder MPAC describes Ghannouchi as "one of the most important figures in modern Islamic political thought and theory." MPAC, by the way, brags that President Obama personally calls its Washington office to thank the organization for its important work. By contrast, the White House sometimes seems less than proud of the relationship -- inviting MPAC's Washington director to its annual Iftar dinner but omitting his appearance from the published list of guests. But then again, the Obama/Holder Justice Department did rush to purge FBI training materials of information about Islamist ideology when Marayati took to the pages of the LA Times to complain.

Good to know who's calling the tune in Washington these days. Happy Arab Spring!

Republicans Subsidize Mansions

Almost two weeks ago, when they figured no one was watching, the Republican-dominated House of Representatives, by an overwhelming 292–121 margin, voted to increase funding for the Federal Housing Administration. Just as government debt hit $15 trillion, edging closer to 100 percent of GDP, these self-proclaimed scourges of spending decided Uncle Sam should continue subsidizing mini-mansion mortgage loans -- up to nearly three-quarters of a million dollars.  

Given the straits that the mortgage crisis has left us in, to say nothing of the government’s central role in getting us there, one might think Republicans would be asking whether the government should be in the housing business at all. “Stop out-of-control spending and reduce the size of government” -- that is what Boehner, Cantor, & Co. promised in big bold letters during the 2010 campaign. That was in the snippets of text that occasionally interrupted the gauzy photo spread they called their “Pledge to America.”

#ad#Instead, here we are a year later, careering toward the cliff. We ought to be doing everything in our power to tee up the 2012 election as a high-noon showdown between Obama’s insatiable Leviathan and a GOP vision of fiscally sane, constitutional conservatism. So how do Republicans respond to their moment? How do they propose to “stop out-of-control spending and reduce the size of government”? Why, by putting taxpayers on the hook for shaky loans on luxury homes -- sure to add prodigiously to the already $142 billion (and counting) housing bailout attributable to Fannie Mae and Freddie Mac.

Not housing for the poor, mind you, nor even for the middle-class -- luxury homes. The real-estate market is so depressed at the moment that the median sale price of a single-family home is less than $170,000. Even in high-cost areas like Los Angeles, the Wall Street Journal reports, it has plunged to less than $325,000. Yet the Republican House -- installed by the Tea Party in a sea-change election to be the antidote to Obamanomics -- decided the taxpayers should guarantee FHA loans up to $729,750. Had they not acted, the public obligation would have been reduced to “only” $625,500 per FHA loan -- couldn’t have that, right?

Most every sensible person realizes the housing market will never recover until it is allowed to bottom out -- meaning no more price supports, period. Yet, thanks to Republican leadership, the FHA marches on, under the Fannie/Freddie radar. As the Journal’s editors elaborate, though the agency now guarantees a whopping $1.1 trillion, its capital reserve against this astronomical liability is $2.6 billion -- too small to be considered even a pittance. Leave aside that this is illegal: It’s less than an eighth of the meager 2 percent reserve federal law requires. The reserve amounts to a leverage ratio of 422:1, a metric by which, the Journal editors quip, Lehman Brothers was comparatively “risk-averse.” With GOP at the helm, the ratio is up over a thousand percent since the salad days of 2009, when it was a more Lehman-like 33:1.

In their pre-election pledge, Republicans promised to “End Government Control of Fannie Mae and Freddie Mac.” They explained that the government-backed mortgage giants had “triggered the financial meltdown by giving too many high risk loans to people who couldn’t afford them.” GOP leaders thus committed to “ending [Fannie and Freddie’s] government takeover, shrinking their portfolios, and establishing minimum capital standards,” which they projected would save $30 billion.

#page#Sure. Let’s put aside that Fan and Fred are still open for business -- and structuring executive bonuses to rise in direct proportion with taxpayer bailout tabs. The pledge studiously avoided mention of the FHA. Now, thanks to GOP leadership’s good offices, this government mortgage guarantor now sports expanding portfolios, capital reserves acknowledged only in the breach, and the potential for hundreds of billions of dollars in losses. As the Journal notes, FHA loan down-payments can be as low as 3.5 percent -- at a time when market conditions have prudent lenders insisting on 20 percent.

The FHA debacle and the excellent WSJ editorial about it were hard to forget this week when the vaunted deficit “supercommittee” -- another joint Obama-GOP soap opera -- collapsed in failure. Unlike Journal editors and maverick senators, a number of us Hobbits alwaysthought the debt-ceiling deal from which sprang the supercommittee was pathetic: It enabled President Obama to incur staggering new debt for a nation already drowning in red ink without any meaningful reduction in spending. But the Journal’s postmortem was truly rich.

#ad#The editors dismiss as a “Beltway fable” the Democratic talking point that the supercommittee flopped because of GOP resistance to tax increases. True enough, but then they counter with a Beltway fable of their own: to wit, the real problem is that “the two parties disagree profoundly on a vision of government. Democrats don’t believe they need to do more than tinker around the edges of the entitlement state while raising taxes on the rich. Republicans think the growth of government is unsustainable and can’t be financed no matter how much taxes are raised.”

In truth, the two parties are largely in agreement: The blob must grow. Yes, Obama Democrats want to grow it by about $6 trillion over the next decade, but Republicans are nearly as bad. Writing with Reason editor Nick Gillespie, NRO Cornerite Veronique de Rugy points out that the GOP would grow it by close to $5 trillion -- a 30 percent increase.  

That is under the plan proposed by Rep. Paul Ryan, the Republican budget pioneer who has won glowing praise in GOP leadership circles for daring to notice that we might be running out of other people’s money. Indeed, Newt Gingich, resurgent contender for the Republican presidential nomination, nearly derailed his campaign in its first mile by referring to the Ryan plan as “right-wing social engineering” -- a gaffe he has sought to explain by stressing the need to grow public consensus before proposing something so tectonic.

Was it that good for you? I didn’t feel the earth move.

Don’t get me wrong. I like Representative Ryan. I wish he had run for president. I think he’d have won going away. Of all the stars in the GOP firmament -- fellow supporters of TARP, and Keynesian economic stimulus, and the prescription-drug entitlement, and the bailout of GM and Chrysler, and#...#and#...#and -- Ryan is the most likely to evolve into something like Reagan: the deep thinker humble enough to see the light and attractively confident enough to convince the country of what must be done.

But whether it is Ryan or somebody else, that evolution better happen in a hurry. In 2000, the last of the Clinton years, government spending was 18.2 percent of GDP. Obama has us at a 25 percent, but it’s only by that preposterous measure that Ryan’s proposal of 20.5 percent seems tame. In reality, the GOP proposes runaway spending that will get us to the same place -- ruin -- only slightly slower.

#page#If Republicans really thought the growth of government was unsustainable, they’d stop growing it. As it is, the truly profound difference on “a vision of government” is between those who believe that government “growth” is unsustainable versus those who realize that government is unsustainable as is -- those who grasp that throwing untold billions at Baby Boomer palaces is not compassion; it is the grandest of larceny, robbing our children and grandchildren of the chance for prosperity our forebears laid down their lives to preserve for us.

It was only a decade ago that we were getting by on 18.2 percent of GDP, and only about half a decade ago that a $400 billion annual deficit (about a trillion less than what we’re running now) was considered unconscionable. Where are the Republicans who are going to tell us how we get back to that?

#ad#The country is on a suicide course. This is not a time to be asking how, with a snip here and there, we trim our way to another $5 trillion down the sink-hole. Every GOP presidential candidate ought to be grilled: How much more than 18 percent of GDP (nearly $3 trillion) do you claim that the government needs to take from us and spend? What departments and tasks currently performed by the government will you shut down and abandon in order to get there? What do you plan to do when interest rates rise to historical norms (or, more likely, beyond) and the cost of further borrowing and debt service ravages the budget?

Obama Democrats demagogue about the need to balance spending cuts with tax hikes. Republicans predictably respond that they were willing to compromise. When you are $15 trillion in debt, a debate over whether we should borrow another $6 trillion or another $5 trillion is not an exercise in compromise. It is an exercise in insanity.

— Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of  The Grand Jihad: How Islam and the Left Sabotage America .

Mitt Wants to Indict Ahmadinejad?

While Newt's views on immigration have gotten all of the attention, what stunned me  -- and not in a good way -- was Mitt's assertion that getting tough with the mullahs means indicting Iranian President Mahmoud Ahmadinejad for violating the Convention Against Genocide. If this absurd proposal had been made by one of the lesser lights, it wouldn't rate worrying about. But Gov. Romney is generally superb on national security, and even in the same debate he was very strong on the importance of distinguishing how we should treat America's terror-mongering enemies from how we should treat mere criminals. There's a very good chance that Mitt will be our nominee, so his provocatively weak suggestion that we indict Ahmadinejad is as troubling as it is baffling. I wrote this column about it yesterday -- and I really hope he rethinks this one. 

Constitutional Conservatism

Yuval Levin's essay from the Nov. 28 edition, "What Is Constitutional Conservatism?", is brilliant. It reminds you of why we love National Review. Up on the website. Do yourself a favor, here. 

More on Immigration and Amnesty

A reply to some reader reaction to my post a little earlier.

I don't mean to be obtuse. What Newt said just did not strike me as a big deal. For what little it may be worth, I am opposed to any program that would legalize the presence of illegal aliens -- certainly at this premature stage of enforcement and certainly without some stringent conditions. I've always thought it was silly for the pro-Amnesty crowd to grouse about how you can't deport 12 (or 15, or 20 ...) million people given that nobody sensible suggests that such a thing is either possible or desirable. Attrition by rational enforcement -- targeting the worst offenders and the employment magnet -- is the best approach because it is both economical and effective: it would induce illegal aliens to leave on their own (or refrain from coming in the first place), and it would dedicate the very limited resources available for immigration enforcement to the worst part of the problem.

I use the "very limited" advisedly. As I understand it, the Bureau of Immigration and Customs Enforcement (ICE) only has about 15,000 employees (not agents, employees). The agency has four different divisions, only one of which is involved in enforcement and removal operations. That division has only a few thousand beds in detention centers. So as a practical matter, you have a relative handful of agents confronting millions of illegals. Unless ICE were dramatically expanded -- at a cost of billions of dollars -- you are simply not going to be able to deport that many people. You've got to give them incentive to deport themselves. You also have to exercise discretion about what kind of offender you are going to go after with the limited arsenal at your disposal. The kind of illegal Newt was talking about last night -- a relatively law-abiding, long-time reside with an intact family -- is not going to be on top of anybody's list of aliens who ought to be chased down and deported.

In my mind, if you are in the country without authorization and we elect not to use our power to kick you out, you are the recipient of humane treatment and a very valuable benefit. You don't rate more than that. We simply leave you alone: You don't get the windfall of some sort of legal status, we don't make it easier for you to work, and it's not our job to relieve your anxiety over your status -- you bought that anxiety on yourself when you entered or stayed illegally. If being here without authorization is causing you grief, go home and try to come back through the legal process. If you don't want to do that, you takes your chances -- period.

If Newt or anyone else is talking about enacting some sort of regulatory or statutory regime to confer legal status on illegal aliens -- even if it is something less than citizenship, a green card, or some sort of visa -- I think that's a bad idea at this stage (and maybe at any stage). That would be a magnet for illegal immigration at a time when we already have millions of illegals here. And if the point is to give humane treatment to longtime residents with intact families, you don't need a legal regime that would create perverse incentives. You just use prosecutorial discretion, as we've discussed. That's what I took Newt to be arguing because he emphasized that he wanted to be "humane in enforcing the law." 

Would it ever make sense to have a legal regime? Maybe, but it's not something we need to decide now. Get back to me in a few years, when: (a) you've done enough enforcement and border/visa security that the illegal population is a bare fraction of what it is now, (b) you've proved you're seriously committed to prosecuting employers who knowingly hire illegal aliens; and (c) you've changed the laws so that illegal aliens are not qualified for social welfare benefits. I'm not holding my breath for any of that to happen, but if it does and you could convince me we weren't doing Simpson-Mazzoli all over again, I'd consider it (not that anyone particularly cares what I think).

One last thing: I said in my earlier post that the Obama administration had refrained from "any meaningful enforcement of the immigration laws." That was an overstatement. As a couple of readers have pointed out, the administration has reported record high numbers of deportations. To be sure, these reports are inflated -- as the Federation for American Immigration Reform points out, the administration's removals are numerically high only by comparison to the Bush administration, which did not make immigration enforcement a priority; and the vast majority of removals are unrelated to immigration enforcement (as I recommend above, they are concentrating on illegals who violate criminal laws). Because the administration is simultaneously (a) talking about conferring amnesty by executive order, (b) largely ignoring employers, and (c) suing states that try to enforce the immigration laws, President Obama must be said to be encouraging illegal immigration. Still, his administration has deported a fair number of illegal aliens, and I was thus wrong to imply that it was doing nothing in the way of enforcement.

Romney's Iran Gaffe

For a guy who generally seems solid on national security, Mitt Romney flashed some disturbing weakness at last night’s foreign-policy debate among the Republican presidential hopefuls. When it comes to Iran, the most immediate threat to the United States and its interests, the Romney strategy is -- wait for it -- to indict Pres. Mahmoud Ahmadinejad. It was as if the governor had missed the 1990s and its painful lesson about the wages of treating a national-security challenge like a mere crime problem.

In June 1998, the Justice Department indicted Osama bin Laden. It was the ultimate demonstration that the United States government lacked resolve and seriousness. Bin Laden was not a mafia don running a racket. He and his al-Qaeda network constituted a ruthless foreign enemy imperiling our national security. By mid-1998, their operatives had been complicit in several terrorist attacks -- very likely including collusion with Iran in the 1996 Khobar Towers bombing, which killed 19 U.S. Air Force servicemen in Saudi Arabia. Bin Laden had very publicly declared war on the United States and called for the killing of Americans, including civilians, all over the world.

#ad#“Due process” in bin Laden’s case was not the federal rules of criminal procedure; it was the Marines and the Navy SEALs. The situation cried out for American military might, yet we resorted to a grand jury. The signal that we lacked the will to defend ourselves was plain enough, but bin Laden’s ensuing terror campaign made it crystal clear: the August 1998 bombings of the American embassies in Kenya and Tanzania that killed over 220 people; the October 2000 bombing of a naval destroyer, the U.S.S. Cole, killing 17 American sailors; and finally, the attacks of Sept. 11, 2001, in which nearly 3,000 were slaughtered.

As should have been obvious at the time, bin Laden’s indictment was, at best, an empty gesture. We had no law-enforcement capability to arrest him. He was an insulated foreign enemy, plotting from overseas havens where the writ of American courts does not run and American law-enforcement agencies have no authority to operate. These foreign havens were sanctuaries because the sovereign powers favored him over the United States.

Thirteen years elapsed before we were able to capture and kill bin Laden. When that finally happened, it had nothing to do with the indictment or the criminal-justice processes. It happened because we went to war. It happened because the commander-in-chief sought and obtained congressional authorization to use military force, eventually resulting in a combat operation expertly carried out by American special forces.

Consequently, one would think we’d by now have learned a searing lesson: Responding to a hostile foreign power’s threat to our national security by a mere indictment is a provocative display of weakness. If they threaten mass murder and you counter with an arrest warrant, that only guarantees that there will be more terrorist threats and attacks.

That’s why Governor Romney’s remarks about Iran last night were so baffling. After accusing President Obama of failing “to lead with strength,” he declared that the “right course in America is to stand up to Iran” by implementing his bold plan to “indict Ahmadinejad for violating#...#the Genocide Convention.” It would be worth asking whether the governor was kidding if the matter were not so serious.

#page#From a practical standpoint, the proposal is frivolous. How, for example, does Governor Romney suppose we are going to get custody of Ahmadinejad? Unlike bin Laden, who managed to elude us for 13 years, Ahmadinejad is a head of state. Does Mitt figure the mullahs are just going to hand him over to us? While the Taliban and rogue elements of the Pakistani government were sympathetic to bin Laden, bin Laden was not one of them. The Iranian government is apt to be considerably more protective of its own leader, wouldn’t you think? After all, those genocidal rants that Mitt wants to indict Ahmadinejad over are actually statements of official Iranian policy. Given that the regime’s security forces shot their own citizens in the street in order to help Ahmadinejad steal an election, does Governor Romney really suppose they are going to stand down in deference to an American grand jury? Is the FBI going to knock on Ahmadinejad’s door in Tehran after explaining to the nice Revolutionary Guard officers that the Bureau is in town to put cuffs on their president?

#ad#And then there’s the little matter of the forum, which is not laid out in the Genocide Convention itself. Where exactly does Mitt figure the Ahmadinejad trial is going to take place? Are we going to an American civilian court? Would President Romney let a United States judge decide how much of our classified national-defense information should be disclosed to Ahmadinejad and his lawyers in pretrial discovery?

Or was the governor talking about a trial in the International Criminal Court? The ICC claims that genocide prosecutions are part of its mandate#...#but the United States does not recognize this imperious tribunal’s jurisdiction. Pres. George W. Bush wisely refused to join the ICC. He understood that signing on would legitimize efforts by the “international community’s” anti-American factions to criminalize actions taken in America’s national defense. If you had told me that in 2013, the president would have us in the ICC, I would have assumed that meant Obama had won reelection.

At the start of last night’s debate, Governor Romney made a point of emphasizing that “Newt Gingrich was right” about the need to draw a categorical distinction between national security and law enforcement. The governor explained that prosecution under the criminal law was reserved for “those people who commit crimes,” but that “a very different form of law” -- the law of war -- was to be invoked against those who use terrorism as a “tool of war” to “fight America.”

When it got down to concrete cases, though, Romney huffed and puffed and promised to indict one of the world’s leading terror masters -- Ahmadinejad, leader of a country that has been at war with the United States for 30 years, face of a regime that plots to kill Americans on the days when it is not actually killing Americans.

Governor Romney is ordinarily very reassuring when he talks about American national security. Maybe he misspoke, or maybe he just hasn’t given the matter sufficient thought. In either event, his bizarre statements about indicting Iran’s president surely do not square with his forceful insistence that foreign enemies must not be treated like accused criminals, the latter of whom enjoy our justice system’s presumption of innocence. A revision is in order, forthwith. To be the Republican nominee, a candidate must show that he grasps the folly of Clinton-era counterterrorism. Even President Obama, who campaigned on restoring Clinton’s law-enforcement approach to the jihad, reluctantly concluded that its fecklessness only encourages our enemies’ aggression.

— Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.

Discretion, Not Amnesty

All he said was, "Let's be humane in enforcing the law." That was my reaction last night when Newt Gingrich argued that the federal government should refrain from deporting illegal immigrants who had been in the U.S. for many years if the effect would be the break up of a family.

I did not take him to be proposing a new law conferring amnesty. To do what the former Speaker proposed would require no change in U.S. law. All you'd need is the sensible application of prosecutorial discretion.

A successful immigration enforcement policy, easily implemented under current law, would secure the borders; use the capability we have to track aliens who enter on visas to ensure that they don't overstay; and target our finite law enforcement resources at (a) illegal immigrants who violate federal or state criminal laws (i.e., other than the laws against illegal entry), and (b) employers who knowingly hire illegal aliens and therefore provide the incentive that induces them to come. (An even better policy would deny illegal immigrants various social welfare benefits, but some of that would involve changes in the law so I put it to the side for present purposes.)

Such a policy would materially reduce the number of illegal immigrants in the U.S. -- if they can't work, many will leave and many won't come in the first place. Such a policy would also call on government lawyers to exercise discretion (as they do in all aspects of law-enforcement) to decide which cases are worth prosecuting. Obviously, if an alien has been here illegally for a number of years but has been essentially law-abiding (again, ignoring the fact that it is illegal for him to reside and work in the U.S.), and if his deportation would have the effect of ripping apart an intact, law-abding family, you don't bring that case. Such a case is not worth the Justice Department's time when there are plenty of more serious criminals, including more serious immigration offenders, to pursue.

This is not a radical concept. The Obama administration currently exercises its discretion by not only refraining from any meaningful enforcement of the immigration laws but also preventing states (e.g., Arizona) from enforcing the laws. In stark contrast, the Speaker indicated that a Gingrich administration would enforce the law against illegal aliens -- it would arrest and deport many of them. I'm betting that he'd also direct his Attorney General to drop the Obama Justice Department suit against Arizona. And Newt was quick to point out last night that he was talking about a humane enforcement policy. He was not proposing that the illegal aliens who were not prosecuted be given citizenship. They just wouldn't get prosecuted as long as they didn't make a nuisance of themselves.

That's not amnesty. It's common sense. It would also be a vast improvement over Obama immigration policy. I don't understand what the hubbub is about.

'Devastating' Defense Cuts?

The heavy breathing over the "cuts" to defense spending that will result if the sequester trigger is allowed to kick in over a year from now is just absurd.

As usual, Beltway budget bluster is obscuring rational thought about government spending. Jamie Fly grouses over "Tea Party darling Sen. Rand Paul ... telling reporters that the defense cuts [Defense Secretary Leon] Panetta and the entire uniformed military leadership were warning about were fictional." Yet Mr. Fly studiously withholds from readers Sen. Paul's rationale for making that claim: In point of fact, the cuts are not cuts -- they are reductions in the rate of growth. That is, the familiar Washington spending sleight-of-hand applies to defense just like it applies to everything else: In your house, when you cut spending, you actually spend less; in Leviathan, when you cut spending, you spend more -- just not quite as much more as the blob would spend left to its insatiable devices.

To listen to some of the hyperbole, you'd think Sen. Paul was proposing to reduce the Pentagon to billy-clubs and sling-shots. As Paul told CNN, however, if the sequestration goes forward, defense spending will still increase by 16 percent over the next ten years. This is a "cut" only in the sense that it would otherwise go up by at least 23 percent.

This underscores the point Veronique de Rugy has been so effectively, if inconveniently, making: Under sequestration, the Defense Department would still be spending more money in 2021 than it is spending today. Moreover, that spending increase -- not cut, increase -- comes atop a decade-long spending bonanza in which defense spending spiked by over 40 percent (from $297B in 2001 to $526B today). Furthermore, these increases do not include the added hundreds of billions in war spending -- spending that we would obviously ratchet up again if we had another war (or more) to deal with.

Of course Defense Secretary Panetta and the uniformed military are pining that the planned increase in spending actually amounts to "devastating" cuts as Panetta put it in recent congressional testimony. That is the way government bureaucracy always works, regardless of which agency is involved. There is never such a thing as "enough," and the slightest proposed reduction is resisted with end-of-days hyperbole. But Panetta's letter to Sen. John McCain, leader of the hyperbole chorus, is underwhelming to say the least. The defense budget contains billions in spending that has little to do with national defense. And it is sheer lunacy to think that the same government that gives you Solyndra and the First Lady's travel expense account is a model of fiscal probity when it comes to the $600B per annum that will soon be the Defense Department's threshold spending (i.e., before we ever get to overseas contingency operations, which are funded separately).

National security is the most important function of the federal government, the one thing government should do if it were to do only one thing. I am no come-home-American xenophobe -- I believe the capacity of the United States armed forces to project power globally is the key to international stability. It saves us lots of money in the long run. But our military is so superior to that of China, the biggest threat on the horizon, that the difference is difficult to quantify, and our defense spending continues to outpace China's by more than six-to-one. Niall Ferguson, who worries about what he calls "slashed" defense spending, concedes that our military budget "is larger than those of the next 15 countries combined" -- and most of those countries are our allies. In 2001, when defense spending was about 40 percent less than it is now, we were "only" $5.8 trillion in debt. Now debt is $15 trillion, heading to well over $20 trillion in short order. We cannot continue on this suicide path, and the thought that it can be reversed without touching one of the biggest drivers of government spending is nuts. 

Given the shape we're in, defense spending needs a very hard look -- not with an axe, but at least with a scalpel. If we do not come to grips with that fact, it is hard to see how there will ever be the political will to take an axe to the spending and programs that should be no part of the federal government's business and that are bankrupting us. I concur that it was extremely foolish for Republicans to agree to single out defense as a target for spending reductions in the very likely event that the super committee failed. But the problem is that entitlements and everything else should have been slated for much deeper cuts, not that military spending has to be pared somewhat. And to brand as a catastrophe what we are actually talking about -- not a cut but a more modest spending increase that will still leave us, by leaps and bounds, the most powerful nation in the history of the world -- is ridiculous. 

A Lone Wolf Conspirator?

The criminal complaint filed by the State of New York against Jose Pimental (aka Muhammad Yusuf) is strange.

As Mark pointed out earlier, Mayor Bloomberg has already pronounced Pimentel a “lone wolf” terrorist. But the complaint charges Pimentel with two counts of conspiracy -- specifically, “conspiracy as a crime of terrorism” (which the complaint alternatively and confusingly refers to as conspiracy “in the second degree” and “in the fourth degree”), and conspiracy to commit arson and criminal mischief. By definition, a lone wolf does not conspire; he acts alone, which distinguishes him from a conspirator. A conspiracy, by definition, is an agreement to commit a criminal act, “a meeting of the minds,” which means one mind won’t do.

Reviewing the complaint, it appears that virtually all of the planning for terrorist attacks involved Pimentel and a confidential informant. It is a well-known principle of conspiracy law that one cannot conspire with a government informant or undercover agent. As a matter of law, these government agents do not actually agree to the criminal objective -- to the contrary, they exist to enable the authorities to collect the evidence necessary to stop the criminal objective (e.g., bombing or arson) and convict the real malefactor(s) at trial.

The complaint contains a fleeting reference to an unidentified neighbor who is said to have helped Pimentel try (unsuccessfully) to drill holes in the pipes that were to be turned into pipe-bombs. But the complaint does not indicate that the neighbor was knowingly participating in bomb construction -- for all we know, he was just being neighborly by helping Pimentel with what ostensibly was some kind of construction project. The complaint does not set forth anything approaching probable cause that the neighbor is a coconspirator. That’s a matter of no small consequence in a case where the only other seeming “conspirator” in the complaint is the government informant -- who, again, does not qualify as a conspirator.

If I were representing Pimentel, I would move to dismiss the two conspiracy charges -- and in so doing, I’d explain to the court that Mayor Bloomberg is the star defense witness. Between his assurances that Pimentel acted alone and the dearth of conspiracy proof in the complaint, I’d be interested to know what the prosecutors’ theory is.