Andrew C. McCarthy's Blog, page 37

Obamacare in Court

Monday’s announcement that the Supreme Court will consider constitutional challenges to Obamacare has been met with hurrahs on the right. Count me a skeptic. And that’s not only, or even primarily, due to uncertainty about how the justices will rule. Big Government’s attempt to usurp control of the health-care sector, and all the control over our lives that would entail, poses the question of what kind of political society we are to be. That is not a legal question. The court case is significant, but secondary. This is a political issue.

Of course, the justices must resolve the constitutional claims that have been leveled against the risibly titled “Affordable Care Act” (ACA or Obamacare). And if Obamacare is unconstitutional, that is the end of the matter -- if the Constitution forbids the ACA, its policy implications are irrelevant.

#ad#Yet, the reverse is not true: Even if the Court concludes that Obamacare is a valid exercise of congressional power, it will still be horrific policy. That is the point. We have a Constitution for a free people. It empowers the people’s elected representatives to do all manner of ruinous things, but that does not mean those things ought to be done. Obamacare is not an issue on which the justices should be the final word. By lowering their sails once the legal armada streamed to the rescue, congressional Republicans have abdicated their responsibility, foolishly raised the stakes of the judicial proceedings in the public mind, and sold short the Right’s best issue in the 2012 presidential campaign.

There have now been a number of judicial rulings invalidating some or all of the ACA. But once there was even a single one, Supreme Court consideration of the statute’s constitutionality became inevitable. In that sense, the fact that we’ve gotten to this stage is cause for at least muted celebration.

Let’s imagine, though, that all the court challenges had failed. The legal affirmation of Obamacare would have been far from the end of the battle. Moreover, it is anything but clear that the mixed bag of appellate rulings to date has improved the battlefield on which the more critical post-litigation fight will be waged. That fight, not the court fight, is the endgame for limited-government conservatives who aspire to a more free-market-oriented health-care system -- one in which we can control our own destinies.

The overturning of Obamacare by judicial means would be a good thing. But that is only because Obamacare is so bad for the country: Its overturning by any lawful means would be preferable to its implementation. Still, a judicial invalidation would be very far from the best way to achieve repeal. And tactically speaking, the nearly exclusive reliance on the justices to do the right thing is extraordinarily foolish. What Obamacare needs now, what it has always needed, and what it will continue to need after the Supremes issue their ruling next year is a political repeal -- and a replacement that rejects the premise that medical care is a corporate asset of which Leviathan should manage (i.e., ration) the distribution. 

This is why many of us are so frustrated with congressional Republicans. And I should add that my energetic if less than scientific canvassing of some of our most loyal readers on this week’s NR cruise confirms that “frustration” is a gentle way of putting it. As Ohioans demonstrated on Election Day, opposition to Obamacare remains very strong. In a state Democrats rightly regard as the 2012 battleground, and into which the Left poured the fortune of Croesus to repeal Gov. John Kasich’s collective-bargaining reforms, the Obamacare mandate lost big. Even with highly motivated public-union employees (a building block of Obama’s base) turning out in droves, the president’s signature achievement got a resounding thumbs-down. The message from House Speaker John Boehner’s backyard could not be clearer: The American people do not want more radically socialized medicine -- the government has already done quite enough, thank you very much, to undermine the world’s greatest health-care system.

So with the wind at its back, why isn’t the GOP attacking? Beats me. Yes, it is true that House Republicans admirably forced and won a vote to repeal Obamacare shortly after taking control of the chamber. It was done in fulfillment of a commitment in their “Pledge to America” during the 2010 campaign. In light of the Pledge items that have since fallen by the wayside, I suppose we should be grateful for that. Alas, the repeal measure then went to the Senate, where good policy goes to die, and that was that.

#page#But why one and done? There should by now have been many votes, reminding Americans of who owns this monstrosity. Democrats forced it down the throats of an angry, unwilling public, while Republicans gamely tried to stop it. That story cannot be told often enough. Several of the accounting shenanigans that Democrats employed to hide hundreds of billions in costs -- legerdemain that would have made Jon Corzine blush -- have since been exposed as the frauds that they are. Are Republicans content to have that fade from memory while the president uses his bully pulpit to paint the GOP as the enemy of Grandma, clean air, education, and apple pie?

Why not at least have another vote every time a lie in the Obamacare construct is brought to light -- again, to remind Americans of how badly the Left wanted this one and how cynically the Reid/Pelosi legions played it? Barack Obama is going to be on the ballot next year, posing yet again as a pragmatic centrist. Isn’t it worth reminding voters as often as possible that beneath the thin veneer lies a committed hard-left ideologue whose views widely deviate from those of the American mainstream? Isn’t it worth reminding Americans that, if he wins, the president is certain to sprint back to his comfort zone -- governing from the progressive extreme, not the right-of-center heartland -- just like he did the last time?

#ad#The problem is not just Republicans’ passivity while a winning issue sits staring them in the face. Phlegmatic GOP leaders will not bestir themselves to address the Left’s obvious Obamacare strategy. Their inaction and lack of urgency help the president enormously.

True, it will be another two years before the main thrust of Obamacare takes effect, but that does not mean nothing happens until then. The financial and regulatory infrastructure is being built. The thousands of pages of statutory directives are already exploding into tens of thousands of pages of suffocating regulations. Americans and American corporations are making their arrangements in anticipation of the law’s implementation, in hope of avoiding paralysis when D-Day comes. Obamacare is being regularized; its architects are shaping expectations so that the public sees it as a fait accompli.

Every day the law’s evils are not highlighted is a day that makes eventual repeal less likely. Yet, while tea partiers and other mainstream Americans become ever more agitated, on Capitol Hill there is no vigor. Rep. Michele Bachmann and a handful of other House Republicans discovered that, embedded deep within the mammoth bill Democrats said had to be passed before we could learn what was in it, there was provision for over $100 billion to begin funding the law right away -- not beginning in 2014 but beginning now. Yet they could not rouse Republicans to outrage, much less to a vote that would undo at least that offensive portion. Obamacare may not be open for business yet, but the fortress is under construction and Republicans appear content to pay for it, while mumbling about how they only “control one-half of one-third of the government.” (That it is the one-half of one-third from which every penny of government spending must originate and be approved seems not to matter.)

We conservatives get used to the fact that, even when it comes to matters of gargantuan importance like a government usurpation of a sixth of the economy, the GOP appears to have less than a sixth of the energy that the Left musters for comparable trifles. Just ask Bush attorney general Alberto Gonzales, who got run out of town two steps ahead of the lynch mob over nothing -- the firing of a handful of patronage appointees the president needed no reason to fire. Democrats have no fear of being nakedly, aggressively partisan. But thanks to establishment consultants who warn that active opposition to a terrible law will be caricatured as insensitivity by the left-leaning media, Republicans are so fraidy-scared that lethargy has become their default position.

This syndrome gets even worse when litigation is involved. When you proceed from the premise that zeal is a four-letter word, nothing is more enervating than the prospect that judges will do your heavy lifting for you. In my random canvass on the cruise, “Remember McCain-Feingold!” had the ring of “Remember the Alamo!” Conservatives haven’t forgotten the lesson. Cravenly, too many congressional Republicans, along with President Bush, decided they could go along with a blatant violation of core political-speech rights. After all, why endure all that New York Times demagoguery about “money in politics”? Why do the responsible thing and make the case for First Amendment liberties when surely the Supreme Court would save the GOP by invalidating the law?

#page#Of course, the Supreme Court did not invalidate much of the law, and the GOP got demagogued anyway. Now, with eerie similarity, congressional Republicans seem content to let the courts deal with Obamacare. And once again, it is no lock that the Supremes are going to save them.

By my count, there are four solid votes for upholding the ACA -- the Court’s four leftists; Congress’s Commerce Clause power is the key to much that they hold dear. I know, I know, Justice Elena Kagan has a recusal issue: As Obama’s solicitor general, she was involved for a time in designing the law. Maybe she’ll shock us, turn out to be an ethical paragon, and step aside. But Supreme Court justices have a very wide berth in deciding whether their involvement in the subject matter of a case disqualifies them from ruling on the case. Call me crazy, but I suspect that upholding the crowning progressive achievement of the president who gave her this lifetime plum is one of the things she got appointed to do. Do you think Obamacare just might have been in the back of her mind during the confirmation hearing, at which she opined that Congress has the power to mandate that you eat your veggies?

#ad#I’m nowhere near as certain that the “no” votes number four, let alone five. Justice Kennedy is a wild card, especially when there are ways to split the baby -- and with Obamacare, there are if you want to find them. As for the four reliably conservative justices, their general watch-word is restraint. They will not like the law, but they would also be the first to tell you that a judge’s job is not to legislate his preferences. Within broad parameters, the American people have the power, through their representatives, to enact stupid laws. “Dumb,” “freedom-killing,” and “financially ruinous” are not synonyms for “unconstitutional.”

It is black-letter law that courts must presume congressional acts are constitutional and invalidate them only if there is no plausible argument in their favor. I need no convincing that some, probably all, of the Court’s conservatives hate the Court’s Commerce Clause jurisprudence. I’m sure they believe Wickard v. Fillburn -- the seminal and worst excess, dictating what farmers could grow for their own consumption on the theory that these activities affected the interstate market -- was wrongly decided. But to believe the case was wrongly decided is not the same as concluding that the Court should reverse jurisprudence Congress has relied on throughout the ensuing three-quarters of a century. Nor is it the same as concluding that Obamacare is the straw that breaks the commerce camel’s back.

For what it’s worth, I’m persuaded that Obamacare is unconstitutional. I think (among other flaws) requiring Americans to purchase a commodity -- forcing them to engage in commerce -- is an intolerable extension of bad precedent. And the prudential stare decisis doctrine is not a good reason to preserve wayward jurisprudence. (Stare decisis is a doctrine only a Republican could love: It’s routinely ignored when the Left wants to clothe its pieties in constitutional raiment, but studiously invoked to abdicate from the work of undoing progressive desiderata.) Nevertheless, we’re not talking about what I would do. We’re making a prediction about what the justices will do. I hope they’ll invalidate the law, but I wouldn’t bet Filburn’s farm on it. There is a reason why some conservative judges, such as Judge Laurence Silberman of the D.C. Circuit, have upheld Obamacare.

There is also another ground for trepidation. As we’ve seen, the Court is reluctant to invalidate a bad law even in normal times. But this is not a normal time. The Obamacare case will almost certainly be decided in late June or early July. Striking down Obamacare would be seen as a rebuke of a troubled presidency’s defining accomplishment just as Obama’s reelection campaign enters the stretch run. The Supreme Court, particularly the conservative justices, abhorred being seen -- extremely unfairly -- as deciding the 2000 election. They don’t like being demagogued by the New York Times any more than congressional Republicans do, and it’s a fair bet they won’t want to go through that again -- especially pitted against the same Alinskyite Organizer-in-Chief who shockingly lashed them before a national television audience during the 2010 State of the Union address (over the Citizens United campaign-finance case).

We owe a great debt to the state attorneys general and other conservative lawyers and foundations at the forefront of challenging Obamacare. Would that every interested party had their passion and skill. When the ACA was ramrodded through Congress, its lack of constitutional grounding was overlooked. The lawyers have given us what the shoddy legislative process did not: a weighty theory that Congress lacks the power to do what the ACA does. If that theory carries the day, Obamacare is dead -- case closed.

Even if that happens, though, there is mountainous legislative work to be done if the central planning at the root of health-care dysfunction is to be addressed. And if the Supreme Court rules in favor of Obamacare, Republicans will then have to legislate in the teeth of what the media will paint as a ringing Supreme Court endorsement. Such a ruling would energize the Left, inflate President Obama’s gravitas in the eyes of moderates, and demoralize Obamacare opponents. It would dramatically undercut the Republican presidential nominee.

A final thought on GOP insouciance: If the fight is too much for Republicans now, do they really think it gets easier after the Supreme Court rules?

— 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.

The President, the Constitution, and National Security

Position One: The president has the authority to launch war unilaterally -- without any authorization from Congress -- in the absence of an attack, or even a threat of aggression, against the United States; and he may do so by invading a country with which the United States is not only at peace but in alliance -- a counterterrorism alliance subsidized by American taxpayers.

Position Two (and this one is worth quoting): “The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”

#ad#So which is the right stance? It’s a salient question for Republican presidential contenders, who often claim the mantle of “constitutional conservative” -- fidelity to our founding law being a worthy litmus test of conservative bona fides. It is also a pressing question: The GOP candidates are preparing for a November 22 debate that will focus on foreign policy.

That is a crucial topic in any presidential contest, but one oddly overlooked in this election season. That is understandable. The ravaged state of the Obama economy is foremost in the minds of voters, and thus makes disproportionate demands on the candidates’ attention. Still, the Constitution these candidates claim to champion contemplates a modest executive role in domestic policy. We have a president, rather than a parliament or a committee, primarily to pursue and defend American interests in the international arena. Surely, in wartime, a would-be commander-in-chief’s conception of presidential war power ought to rank high among our concerns -- maybe even as high as whether Herman Cain vanishes when it’s time to pay the wine tab.

The first of the afore-described positions on war powers is the one taken by Sen. Lindsey Graham during the recent Libya misadventure. It is particularly worth noting because the South Carolina Republican has just penned a lengthy disquisition on what he sees as the foundation of a conservative foreign policy. That foundation, which he ardently urges GOP candidates to embrace, does not mention, much less address, the Constitution. There is a single, fleeting reference to the “constitutional” rights of alien enemy-combatant terrorists. Yet nowhere, in over 5,000 words, does the senator see fit to address whether the Constitution the president takes an oath to defend might actually inform how he should carry out his constitutional responsibilities.

Executive foreign-affairs powers are not exactly defined. The Constitution marks no black-and-white boundary beyond which the president must give way to congressional authority. The framers’ handiwork is ingeniously flexible in that regard, a testament to their sage humility -- an attribute sadly lacking in today’s central planners. “If a Federal Constitution could chain the ambition, or set bounds to the exertions of all other nations,” Madison observed in Federalist 41, “then indeed might it prudently chain the discretion of its own Government, and set bounds to the exertions of its own safety.” But in the real world, he knew, “security can only be regulated by the means and danger of attack. They will in fact be ever determined by these rules, and by no others.” Because “it is impossible to foresee or define the extent and variety of national exigencies,” Hamilton added (in Federalist 23), “no constitutional shackles can wisely be imposed” on those responsible for the nation’s security.

#page#So yes: Potential threats are unpredictable, the power to be marshaled in response is illimitable, and the division of labor between the political branches is not fixed with certainty. But the fact that these matters defy apodictic knowledge does not justify a policymaker’s ignoring them. There is a constitutional order of things -- an order designed to achieve practical success. A president’s foreign policy works best when it commands the political support of the people’s representatives. If the political branches oppose each other, it does not necessarily mean either is acting illegitimately; but it is very likely to mean a president’s foreign policy is ill fated, and probably ill designed.

Senator Graham’s Constitution-free advice thus undermines a number of good points he makes. Ironically, his principal complaint about Obama’s foreign policy -- the flaw he exhorts GOP candidates to avoid -- is the elevation of raw political expediency over long-term national-security strategy. But if that is the pitfall, then the senator himself is deep in the pit.

#ad#With the Constitution as our guide, Libya can be explained by nothing other than raw political expediency. The unprovoked executive aggression was bad constitutional law and even worse constitutional policy. On the law, the Constitution envisions a significant congressional role in the determination of whether to resort to force. True, it does not explicitly bar unilateral presidential war-making, and the commander-in-chief obviously has the power to repel attacks and serious threats without waiting for a congressional imprimatur -- the Constitution is not a suicide pact. Nevertheless, the Constitution does not authorize the president to launch a war without congressional approval in the absence of an actual threat to vital American interests.

This doctrinal pronouncement is not without controversy among conservatives. Our views on the abstract question of war powers run the gamut: From John Yoo’s theory that Congress’s power to declare war is trivial (Professor Yoo believes the president may unilaterally order the use of force and is mainly constrained by Congress’s power of the purse) to other legal historians’ belief that congressional authorization is a prerequisite to any use of force other than defense against a foreign invasion. This wide divergence on the legal bottom line, though, is not seen in the more salient matter of policy: Regardless of whether they have to, there is broad consensus that presidents should seek congressional authorization for the use of force when it is practical to do so -- as President Bush did after 9/11 and before invading Iraq. Moreover, the more ambiguous the American interests at stake, the more imperative it is for the president to seek and win political support.

This is so because, in making his case to the people’s representatives, a president is forced to think through and compellingly articulate the American interest that is purportedly worth the risk of blood and treasure. He must make clear what the immediate objective is and what the likely long-term consequences of the military action will be. If he obtains Congress’s approval, the war’s aims have legitimacy -- the approval of the people, the sovereign on whose behalf war is conducted. In steering the administration, the president can then be guided by the approved war aims and avoid the politically lethal consequences of unpopular war -- and a war is apt to become unpopular when its guise is stretched to cover policies for which there is little public appetite (e.g., sharia-lite “democracy” building).

For these reasons, Position Two is a more prudent, conservative stance. To repeat: “The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.” This doctrine was so asserted by the notoriously conservative constitutional-law scholar#...#Barack Obama. Back then, he was a senator running for president and warning against an American attack against Iran -- a country that, unlike Libya, was and remains an actual threat to the nation.

#page#Clearly, as with much of what he says, Mr. Obama did not mean a word of it. Senator Graham is right: President Obama is a creature driven by politics. He is not, as Graham implies, without a strategy. The president is an ideological leftist, and his strategic arc bends relentlessly in that direction. His tactics, though, are raw political expediency. I believe Saul Alinsky may have written a book on how it all works.

In any event, as president, Obama did not follow his stated constitutional doctrine. He attacked Libya in the absence of any threat and without congressional authorization, and that was just fine by Senator Graham. There was no consideration of war aims and war’s aftermath -- there was just war.

#ad#Bad precedent? Let us count the ways. The use of American military force was purportedly sanctioned by the United Nations as an end run around the United States Constitution. The nostrums of transnational progressives (such as the loopy “responsibility to protect” theory) were substituted for American interests. The administration lied to the American people about its objectives, pretending to limit itself to the protection of civilians while targeting Qaddafi and his regime (a regime the Obama and Bush administrations had theretofore supported, with a thumbs-up from Senator Graham). Without congressional assent, the administration was reduced to arguing that invading a country, bombing its government, killing at least 1,000 people, and hunting down its head of state were insufficient to be deemed “war” for purposes of federal law (specifically, the 1973 War Powers Act). It will be interesting to hear what the administration has to say when Khalid Sheikh Mohammed tells the next federal judge that, using Obama-administration calculus, 9/11 wasn’t a war either.

Furthermore, with no examination by Congress of who would benefit from Qaddafi’s ouster, we are now witnessing the rise of virulently anti-American Islamists as al-Qaeda flags are brandished across Libya, repressive sharia law is installed, and the Qaddafi regime’s storehouse of high-power weaponry disappears -- apparently disbursed to jihadists in Gaza, the Maghreb, and Central Africa (for starters). Qaddafi was no prize: His terrorist history was atrocious, as was his brutal governance. But he’d abandoned his nuclear program, provided us with extensive intelligence cooperation regarding the jihadist multitudes in his country, and kept his regime’s arsenal under lock and key. In the wake of Obama’s war, the region and the world have gotten more dangerous for Americans.

And not solely for Americans: After all, what lessons are the savage regimes in Iran and Syria to draw? Fight to the death, that’s what. Do whatever you have to do to cling to power; kill as many of your people as necessary -- don't leave a critical mass of dissent around to give the U.S. or NATO any bright ideas about “protecting civilians”; and, whatever you do, make no deals whatsoever that involve surrendering your nuclear ambitions. The message is clear: The peril for a rogue lies in playing ball with America; better for a hostile to become a well-armed hostile than a friend.

To be sure, much of what happens in the Middle East and around the globe is beyond our control. It is the height of foolish arrogance to believe we can always shape events -- even national destinies -- in places where America and the West are reviled. There is nothing conservative about such a conceit. And a conservative foreign policy would take stock of Islamist ideology, the most salient reality in the places where threats to the United States are most immediate. Yet Senator Graham’s lengthy essay devotes as much attention to Islamist ideology as it does to the Constitution -- which is to say, none.

#page#When we ignore the moorings of sound foreign policy, we are sure to veer wildly, wherever the transient political winds take us: One day you’re paying a friendly visit to Qaddafi’s tent, the next day you’re wondering why we can’t just “drop a bomb” on him and “end this thing.” One day you’re demanding that Gitmo be closed as a show of bipartisan support for the absurd proposition that it causes terrorist recruitment, the next day you’re demanding that Gitmo be kept open so we can detain terrorists. One day you’re condemning al-Qaeda’s volunteer lawyers for shutting down interrogations, the next day you’re praising them for “ma[king] us all safer” by volunteering to represent al-Qaeda. One day you’re reading off the ACLU script and bemoaning “torture,” the next day you’re grousing that we no longer get precious intelligence because we’ve “allow[ed] the ACLU to hold hostage our detention and interrogation policies.”

#ad#Senator Graham is certainly right that foreign policy and the conduct of war against what he calls “radical Islam” are issues of great consequence in the upcoming presidential election. He is also correct that, as we size up the GOP candidates, we should probe where they stand on Iran; the future of Iraq and Afghanistan; the security of Israel; how much deference is owed to the judgment of military commanders in making foreign policy; and what is the correct legal paradigm against alien terrorists -- the laws of war, the civilian justice system, some hybrid of the two, or all of the above?

To gauge whether a candidate will get strategy right, however, it is necessary to know what the candidate thinks about the nature of executive power in foreign affairs. It is critical to examine his understanding of the ideology that animates America’s enemies -- and of the sobering fact that this ideology has an enormous following in the region that so vexes us. Senator Graham’s advice glides by these questions, but they are the central ones and they must be asked.

— 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 .

Fast & Furious Was . . . Bush's Fault

I was only able to take in parts of Attorney General Eric Holder's just-completed Senate testimony. But that was enough to see that "Bush did it" is going to be the Democrats' excuse for the inexcusable "Fast & Furious" operation conducted by ATF on the Obama administration's watch.

On the Obama administration's watch. That is the biggest problem with the Democrats' strategy. Fast & Furious did not begin until 2009, months after the end of the Bush administration. Given that, one might think that even today's Democrats would be unable with a straight face to lay this disaster at the feet of Obama's predecessor. But then one wouldn't know today's Democrats.

The key to their strategy is conflating two very different programs: Operation Fast & Furious and a Bush era ATF initiative known as "Operation Wide Receiver." In the questions from Judiciary Committee Democrats (principally, Senators Dianne Feinstein and Chuck Schumer -- there may have been others but, again, I didn't see the entire hearing), it emerged that Wide Receiver began in 2006, when Alberto Gonzales was the Bush administration attorney general. Senator Schumer took pains to describe Wide Receiver as involving the "tracing" of firearms that crossed into Mexico. As we shall see, Wide Receiver's notion of tracing was night-and-day different from the tracing involved in the reckless gun-walking approach employed by Fast & Furious. Obviously, however, Democrats hope that if they get enough help from their friends in the media, the public will miss the distinction.

Schumer made much of the happenstance that a briefing, said to have included information on Wide Receiver, was prepared for Michael Mukasey in late 2007, after he succeeded Gonzales as AG. (This is an amusing contradiction in the Democrats' strategy: If a memo addressed to Holder in the middle of Fast & Furious emerges, you're supposed to understand that, as attorney general, he is way too busy to read every memo; but if a memo is found to have been addressed to Mukasey or Gonzales years before Fast & Furious began, you should see them as the architects of gun-walking!)

Schumer pointed out that AG Mukasey had met with his counterpart, the Mexican attorney general, after the briefing, and that he had expressed a commitment to stanch the flow of guns to destinations south of the border. Schumer took these unremarkable facts, added the gloss that Wide Receiver involved gun tracing, and wildly theorized that it was very likely the subject of gun-walking came up in the Mukasey briefing -- even though both Schumer and Holder conceded that they did not really know what was discussed at the briefing or even who was present at it (details you might figure Holder would be up on if it actually showed that this whole Fast & Furious fiasco was a Bush creation).

It was left to Republican Senators Charles Grassley and John Cornyn to lay bare some crucial distinctions between to two ATF operations. Wide Receiver actually involved not gun-walking but controlled delivery. Unlike gun-walking, which seems (for good reason) to have been unheard of until Fast & Furious, controlled delivery is a very common law enforcement tactic. Basically, the agents know the bad guys have negotiated a deal to acquire some commodity that is either illegal itself (e.g., heroin, child porn) or illegal for them to have/use (e.g., guns, corporate secrets). The agents allow the transfer to happen under circumstances where they are in control -- i.e., they are on the scene conducting surveillance of the transfer, and sometimes even participating undercover in the transfer. As soon as the transfer takes place, they can descend on the suspects, make arrests, and seize the commodity in question -- all of which makes for powerful evidence of guilt. 

Senator Schumer's drawing of an equivalence between "tracing" in a controlled-delivery situation and "tracing" in Fast & Furious is laughable. In a controlled delivery firearms case, guns are traced in the sense that agents closely and physically follow them -- they don't just note the serial numbers or other identifying markers. The agents are thus able to trace the precise path of the guns from, say, American dealers to straw purchasers to Mexican buyers.

To the contrary, Fast & Furious involved uncontrolled deliveries -- of thousands of weapons. It was an utterly heedless program in which the feds allowed these guns to be sold to straw purchasers -- often leaning on reluctant gun dealers to make the sales. The straw purchasers were not followed by close physical surveillance; they were freely permitted to bulk transfer the guns to, among others, Mexican drug gangs and other violent criminals -- with no agents on hand to swoop in, make arrests, and grab the firearms. The inevitable result of this was that the guns have been used (and will continue to be used) in many crimes, including the murder of Brian Terry, a U.S. border patrol agent.

 

In sum, the Fast & Furious idea of "trace" is that, after violent crimes occur in Mexico, we can trace any guns the Mexican police are lucky enough to seize back to the sales to U.S. straw purchasers ... who should never have been allowed to transfer them (or even buy them) in the first place. That is not law enforcement; that is abetting a criminal rampage. 

As Sen. Cornyn pointed out, there is another major distinction between Wide Receiver and Fast & Furious. The former was actually a coordinated effort between American and Mexican authorities. Law enforcement agents in both countries kept each other apprised about suspected transactions and tried to work together to apprehend law-breakers. To the contrary, Fast & Furious was a unilateral, half-baked scheme cooked up by an agency of the Obama Justice Department -- an agency that was coordinating with the Justice Department on the operation and that turned to Main Justice in order to get wiretapping authority.  

By the time Cornyn was done drawing this stark contrast between Wide Receiver and Fast & Furious, Holder was reduced to conceding, "I'm not trying to equate the two." That is big of him given that the two cannot be equated. But the attorney general seemed fine with the effort to equate them -- to make them one and the same -- when it was Schumer asking the questions. Expect the effort to continue. "Bush did it" may be a tired defense, and in this instance a preposterous one, but it's the one the Democratic base loves to hear.

Holder Testimony

The Attorney General is testifying before the Senate Judiciary Committee today. I just caught a bit of it. Sen. Lindsey Graham did a very good job arguing that Gitmo is the only practical option for detaining enemy combatants. He used the case of Hezbollah commander Ali Musa Daqduq, who murdered American troops in Iraq, to make the point that if the administration does not resign itself to the need to use Gitmo, many anti-American foreign terrorists detained in Iraq and Afghanistan will end up being released. I wrote a column about Daqduq, here, when it appeared that the Obama administration was on the cusp of releasing him to the Iraqis -- which would be the same thing as releasing him, period.

The 'Mainstream' of 'Islam as a Whole'

This article by Aymann Jawad al-Tamimi at the American Spectator (h/t to the Middle East Forum) is interesting for a variety of reasons. It concerns the firebombing by jihadists that destroyed the offices of the French satirical magazine Charlie Hebdo. The firebombing was retaliation for the edition the magazine published after the Islamist party won the recent Tunisian elections -- an edition that featured a caricature of Mohammed on the cover and also jokingly included the prophet as a "guest editor."

Mr. al-Tamimi's main thrust is to contrast the spirited defense of free speech by the French press and political class with the craven response in "English-speaking circles." The latter, echoing the Obama administration, Sen. Lindsey Graham, Gen. David Petraeus, and other notables, seem eager to erode free speech protections in order to appease the hair-trigger sensitivities of Islamists.

Tamimi's praise for the French seems somewhat overstated. He points out that Charlie Hebdo had been absolved in 2007, when Islamist groups sued them for reprinting the Danish cartoons. Of course, the Islamists were only able to bring the suit because French law recognizes such claims on the theory of "incitement to racism" (in which Islam is somehow considered a "race"). But Tamimi is certainly right that, on the occasion of the firebombing, both sides of the French political spectrum issued strong statements condemning the notion that intimidating threats and arson should be permitted to limit debate.

No doubt owing to the discussion Robert Spencer and yours truly have been having about the merits of distinguishing between Islam and Islamists, these two paragraphs toward the end of Tamimi's piece jumped out at me (bold italics are mine): 

More generally, this affair -- along with the attack on a Tunisian TV station for broadcasting the film Persepolis, and the death threats that forced the flight from Pakistan of the judge who convicted the assassin of Salman Taseer, the Punjab governor who opposed the blasphemy law -- demonstrates that Islam as a whole still has a long way to go to come towards accepting basic standards of toleration of criticism.

In short, one hopes that the following principle ... will come to be accepted as mainstream in Islam: '[O]ne's response to someone else's provocative action is entirely one's own responsibility. If you do something that offends me, I am under no obligation to kill you, or to run to the United Nations to try to get laws passed that will silence you. I am free to ignore you, or laugh at you, or to respond with charity, or any number of reactions.'

This gets at what we've been arguing about. Mr. Tamimi qualifies his negative criticism as directed at "Islam as a whole" and strongly implies that "the mainstream in Islam" fails to accept enlightened standards of toleration of criticism; at the same time, he expresses "hope" that some day such standards "will come to be" mainstream -- indicating that, for now, they are a minority sentiment but that this will not necessarily always be the case.

I don't see how framing his argument this way detracts even slightly from its force. Nor do I see how an Islam/Islamist distinction, properly understood, should be any different. Using the term "Islamist" to designate those Muslims who want to impose or live under classical sharia does not deny that Islamists are a mainstream of today's Islam -- as I said in my column on the subject, they are the mainstream in many Muslim countries. All it does is acknowledge that there are many Muslims, and a number of Islamic sects, that see sharia as a matter of private conscience, that contextualize or ignore its troublesome elements, and that do not wish to impose it or see it imposed on civil society.

Yes, there is potential for (and plenty of instances of) of misrepresentation and confusion. Apologists for Islamists -- including too many government officials in the West -- constantly use "Islamist" as a reference to Muslim terrorists. Terrorists are a fringe that constitutes a tiny subset of the enormous number of actual Islamists -- i.e., Muslims who want sharia to control civil society. Consequently the apologists' usage of "Islamist" implies that mainstream Islam itself is moderate, that it requires no reform, that these wily Islamists have perverted Muslim doctrine, and that few Muslims share the desire to impose sharia.

I emphatically agree with Robert and others that this is a false suggestion. In my mind, though, that means we should fight to clarify what the designation "Islamist" signifies. The potential that people might be confused or misled does not justify doing something similarly confusing and misleading: namely, allowing Islamists to own the term "Islam," and thereby implying (intentionally or not) that all Muslims believe Islam requires the imposition of classical sharia on civil society and wish to bring that about. 

Re: A Sea of al-Qaeda Flags ...

John, surely you jest ...

A Terrorist Released

Binyam Mohamed is back in the news. You may remember him as the al-Qaeda operative who was slated to help would-be “dirty bomber” Jose Padilla conduct a second wave of post-9/11 attacks, targeting American cities. You also may not remember him. After all, the Obama administration quietly released him without charges.

Well, there’s a new chapter in this sordid tale. Mohamed is living large -- taxpayer-funded large -- in Great Britain. For that, we can thank the Lawyer Left’s stubborn insistence that enemy war criminals are really run-of-the-mill defendants. Actually, make that run-of-the-mill plaintiffs.

#ad#Unlike Padilla, who actually got into the United States, only to be apprehended in Chicago, Mohamed was captured in Karachi and turned over to the CIA. (Marc Thiessen provides more details about the case here.) Mohamed was interrogated by American and British intelligence.

The U.S. Defense Department wanted to try Mohamed by military commission. Alas, Britain’s Labour government was deathly afraid of the potential for a trial to expose its complicity in “enhanced interrogation” tactics, which an international propaganda campaign had equated with “torture” -- and how about a round of applause for Sen. John McCain and Attorney General Eric Holder for sharpening that arrow in every defense lawyer’s quiver? Like virtually all captured terrorists now do, Mohamed claimed to have been tortured with Saddam-style cruelty. And as is virtually always the case, to call the allegation overblown is not to do it justice. Based on disclosures in various court cases, it is now clear that Mohamed was subjected to stress -- essentially, sleep deprivation. Compared to actual torture, that is trivial.

Yet, goaded by its base (the leftist and pro-Islamist contingents that now make up the Occupy London crowd), the Blair-Brown government pleaded with the Obama administration to transfer Mohamed from Gitmo to England. The fact that Mohamed, when he was captured in the midst of plotting to kill thousands of people, had been trying to board a flight to London with a fake British passport was apparently of no import. That he is an Ethiopian national who had no legal right to be repatriated to England did not matter. The same British government that slammed the door on Geert Wilders, an anti-Islamist Dutch parliamentarian, rolled out the welcome mat for the jihadist. President Obama acquiesced, and Mohamed was released -- free and clear.

Yes, free and clear. The Obama administration said barely a word about Mohamed’s transfer. Odd, since this was early 2009, right when the administration was gearing up its campaign to give enemy combatants civilian trials, and Mr. Holder was here, there, and everywhere, assuring every ear that there was no terrorism case the justice system could not handle. In fact, the officials involved in the decision to release Mohamed understood full well that he would be neither detained nor prosecuted by British authorities. He was to be freed.

To grasp just how outrageous that is, a comparison is in order. After being held for years as an enemy combatant, Mohamed’s accomplice, Jose Padilla, was finally convicted in civilian court. The charges involved terrorism, but not the “9/11 second wave” plot that had led to his capture (about a month after Mohamed’s). This was not because the second-wave conspiracy was fiction. It was because the plot could not be prosecuted under civilian due-process standards. To prove it, prosecutors would undoubtedly have had to cut deals with witnesses who knew its details -- al-Qaeda bigwigs such as Khalid Sheikh Mohamed. As if that prospect were not unacceptable enough, such deals require the government to disclose the intelligence debriefings of these witnesses -- something that is intolerable in wartime.

#page#That is one of the principal reasons the Bush administration adopted, and Congress later endorsed, a military-justice system for detaining and prosecuting enemy war criminals. The military system makes possible prosecutions that would be impractical under civilian rules: It provides additional protections against unnecessary disclosure of intelligence, and it eases evidentiary standards so that information from witnesses can often be presented by hearsay, rather than by calling the witnesses themselves.

Regrettably, the Bush administration flinched from a Supreme Court challenge to its treatment of Padilla as a military detainee -- even though the Fourth Circuit had upheld Padilla’s detention in 2005 (no thanks to an amicus brief filed on Padilla’s behalf by some lawyer named Eric Holder). As it happens, Padilla had been an ambitious enough terrorist that his hands were in multiple schemes, including one in Florida to recruit jihadists to commit mayhem overseas. Had that not been the case, the decision to treat Padilla as a mere criminal defendant would have resulted in his outright release. And because, unlike Mohamed, Padilla is an American citizen, we would have had no recourse against his living in our midst.

#ad#Echoing Mohamed, Padilla claimed to have been tortured. But the courts ruled that this was irrelevant: Even if his allegations were true, the abuse was a matter separate from the question of whether he had committed terrorism crimes -- at least as long as the government did not attempt to use evidence derived from the alleged abuse to prove his guilt. A federal court in New York City drew the same conclusion in a prosecution against one of the 1998 embassy bombers, who also claimed he had been tortured. Padilla’s indictment thus stood. In fact, the most notable aspect of his case is that a federal appeals court found the 17-year sentence imposed by the trial judge to be woefully inadequate. The jail term has been remanded to the lower court for re-sentencing.

Now, let’s contrast this with the treatment of Binyam Mohamed. Because he is not an American citizen, there would have been no tenable legal objection to trying him for war crimes by military commission. (The Military Commissions Act directs that only alien enemy combatants may be subjected to such military tribunals.) And even if, in slavish deference to its political base’s aversion to commissions, the Obama administration remained hell-bent on resisting a military war-crimes trial, Mohamed could still have been detained indefinitely. Indeed, our military is still holding at Gitmo scores of enemy combatants who are less serious offenders than Mohamed -- in the sense that, however threatening they may be, they did not plan to carry out mass-murder plots on American soil. In sum, the Obama administration could have declined to transfer Mohamed -- certainly in the absence of a commitment that the Brits were willing and able to keep him under lock and key. If the president had done that, Mohamed would still be detained at Gitmo today.

But instead, Mohamed has hit the jihad jackpot in Albion -- or is it al-Bion? I’ve previously noted that British authorities not only released him but also sustained him on public welfare. Now, we learn, that’s not the half of it.

The British government has actually given this al-Qaeda celebrity a cool £1 million payment. Mohamed, you’ll be shocked, shocked to learn, showed his gratitude for being extracted from Gitmo through the intercession of Her Majesty’s government by#...#suing the Brits for being complicit in his “torture.” The £1 million payment is the settlement the government decided it was best to have British taxpayers fork over. Thus, the Daily Mail reports, Mohamed was recently able to plunk down £250,000 for a lovely three-bedroom, two-bathroom terrace house in Norbury, South London -- conveniently located near the Croydon Mosque and Islamic Centre.

#page#That makes him one of 16 terror suspects who have scored huge financial payouts by simply claiming to have been mistreated by security and intelligence officials. Why does the British government settle rather than fight these claims by jihadists whose goal is to destroy the very system on which they are feasting? Because the Lawyer Left that makes up the transnational progressive vanguard insisted that enemy-combatant terrorists should be seen as civil litigants, and the Brits went along.

#ad#Under prevailing justice-system rules, the jihadist gets to sue and, if the British government tries to contest the case, the jihadist is entitled to discovery of all the intelligence about him in British government files. With this lawfare gun at its head, the government’s choice is to tell al-Qaeda what the West knows (and how we know it) or pay pricey settlements. Justice Secretary Ken Clarke explained that Mohamed got £1 million because, if the government hadn’t settled, the case might have cost British taxpayers £50 million.

One unnamed British government official told the Daily Mail, “The danger is that we have become a cashpoint for terrorists.” Gee, you think?

—   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 .

Nurses Win TRO in New Jersey Conscience Case

I am informed that a federal judge in Newark today issued a temporary restraining order protecting nurses from being coerced by the University of Medicine and Dentistry of New Jersey to assist in the performance of abortions. As noted here yesterday, the state hospital has been attempting to force nurses to participate in abortions despite federal and state law which holds that those who conscientiously object may refrain from participation.

The TRO extends only for two weeks -- until November 18. That is, even though the TRO really does nothing other than require the state hospital to obey the law, UMDNJ did not agree to obey the law permanently -- in order to promote abortion, it apparently intends to fight against the laws that safeguard freedom of conscience.

In yesterday's post, I expressed the hope that Governor Christie would get involved and do whatever he can to ensure that this state institution complies with its legal obligations. I have nothing to report in the way of activity from the Governor -- though I hasten to add that today's proceedings were judicial: litigation between the hospital and the nurses; they did not call for the Governor to take any action.

Politico Is Tawdry

Rich, I continue to think the real story here is the media -- and Politico in particular. To repeat, I am not a Cain guy, and I think that lashing out at Perry, on the basis of what appears to be close to zero evidence, undermines Cain's colorable claim to be the target of a hatchet job -- if you're going to charge hypocrisy, you need to stay above it yourself. But Cain's shooting himself in the foot doesn't change how we got here -- and how Politico is still stoking the flames with irresponsible reporting.

Politico's initial story was woven out of insufficient evidence, anonymous sources, and vague allegations that -- even if you construed every possible inference against Cain -- would amount to an impropriety that outfits like Politico would find too trivial to cover like this if the culprit were a left-leaning Democrat.

Martin's explanation of his reporting in a CNN interview (reproduced by Andrew Breitbart's BigJournalism site) is embarrassing. Martin is asked succinctly, "What did he [Cain] do?" He replies with blather about how he can't get into details and needs to be "sensitive to the sourcing involved here" (no need to be sensitive to the innuendo he's willfully creating against Cain -- just make sure his sources, who won't identify themselves, get to stay comfortable in their anonymity). Martin's bottom line is not that this purported "sexual harassment" actually involved anything sexual; just that women were made uncomfortable.

Now, how would a responsible person evaluate that? How would Martin figure a reasonable reader would evaluate that? He would need to know more details (which Martin suggests he knows but won't reveal), and he would need to know about the character of the women involved: Are they normal women who would be irritated but not bent out of shape unless the behavior Martin refuses to describe was truly obnoxious? Are they unusually sensitive women who were apt to take offense at behavior that a more grounded person would have found innocuous? Are they women who had a motive to make a mountain out of a mole hill because they had other issues with Cain or with the NRA? We don't know because Martin won't say -- he has intentionally leveled a weighty accusation and denied his audience what anyone with common sense would know are the facts necessary to assess it. That is irresponsible. 

Cain could have taken the high road. He could have tried to keep the focus on the obvious media bias. On that score, I'm looking for any indication anywhere that Martin did any reporting like this to vet candidate Obama -- Ayers, Dohrn, Wright, Rezko, Chicago Annenberg Challenge . . . ? I've found a couple of pieces in which he suggests that raising Ayers and Rezko was unworthy, desperation politics; and I've found an item in which he attacked "Joe the Plumber" after he (Joe Wurzelbacher) elicited Obama's damaging "spread the wealth" comment. But nothing so far that suggests Martin thought Obama should be scrutinized over the sorts of things he seems content to see Cain's candidacy scuttled over.

Instead of going that route, Cain -- a day after his campaign claimed to be "follow[ing] Ronald Reagan's Eleventh Commandment" by resisting any urge to hurl mud at other campaigns -- proceeded to hurl mud at Perry . . . based on what appears to be evidence so flimsy it might even have given Jonathan Martin pause. I'm afraid we've learned a lot more about Cain's judgment from the way he reacted to the Politico allegations than from the allegations themselves.

But we've learned the most about Politico. Look, for example, at this: Politico this morning had a post about how, after Cain blamed Perry for being the source of the sexual-harassment story, Perry promptly turned around and floated Romney as the likely source. Yes, congratulations GOP on the circular firing squad -- but that's not the point. The point is: Politico knows who the source is.

This isn't a game-show where the host has the answer on his little card and his job is to have the contestants keep guessing until someone stumbles into the right answer. This is supposed to be news coverage -- professional journalism about a serious matter with a goal of edifying the reader about what actually happened.

Politico has now framed discovery of the identity of the source as is a noteworthy story. Yet, Politico knows that if the identity of the source is a story, it is only because Politico itself is being coy. Politico has reported that Perry may be the source and that Romney may be the source. Yet, Politico knows precisely whether the Perry campaign or the Romney campaign (or both . . . or neither) is the source. It is thus almost certainly true that at least some of the conflicting allegations Politico is airing are known by Politico to be false. In fact, both the Perry and Romney camps have denied involvement -- if it so happens that one of those camps is the source, then Politico knows the denial is a lie, yet it published the denial anyway. That would amount to colluding with its source in order to tarnish Cain while fraudulently portraying its source as above the fray. 

In sum, Politico is publishing at least some things it knows to be misleading or untrue, and framing as a great mystery something to which it knows the answer. That can only be because Politico finds the specter of the Republican circular firing squad more appealing than the prospect of informing readers of the accurate version of events.

When I was a prosecutor, it was considered serious ethical misconduct to suggest to a jury something the prosecutor knew to be factually untrue. If the defense called Witness A, and I was aware of the fact that Person B had robbed a bank, it would be a weighty impropriety for me to impeach A's credibility by suggesting in my questions that A had robbed the bank. If the judge asked me a question, my choices were to give a truthful answer or to refuse to answer and explain why the law supported my refusal -- making a representation that was false or misleading was not an option. And if I later learned that I'd been mistaken in something I'd represented, my obligation was to go back and correct the record as soon as possible. All this because a trial is supposed to be a search for the truth, and I would be perverting the process if I suggested that the factfinder should consider something I knew to be inaccurate or false.

I guess similar rules don't apply in today's journalism.

Lawless Hospital . . . and State Hospital

To follow on Matt Bowman's post, I am hoping Governor Christie will assert himself on this issue of forcing nurses to perform abortions. The University of Medicine and Dentistry of New Jersey is a state institution, created by the state legislature in 1970. And, as Matt asserts, it is a lawless hospital -- and not just because coercing nurses to assist abortions against their conscientious objections is a blatant violation of state and federal law. Historically, UMDNJ is a corrupt institution.

Not long ago, UMDNJ was the target of a federal investigation involving Medicare fraud, no-bid contracts (sometimes entailing no work, either), illegal campaign contributions and lobbyist payments (a no-no for a public institution), and thoroughly politicized decision making (as opposed to judgments made on the basis of sound medicine). You can read some of the gory details here. As is common in cases involving corporate entities -- where an indictment would be a death-warrant, inevitably harming innocent employees as well as the actual wrongdoers -- the United States Attorney for New Jersey opted to offer UMDNJ a deferred prosecution agreement. The U.S. Attorney's name was Chris Christie. In the now-governor's customarily blunt style, he had this to say at the time (December 2005):

It is my policy to inform targets of a federal investigation that they are targets. Now I'm here to tell you that the University of Medicine and Dentistry of New Jersey is a target of a federal investigation. I have enough evidence to indict the university.

We no longer have any faith in your ability to fix any of the problems that have led to the conduct in the case.

But let there be no mistake about it and I want to tell each one of you face to face -- if we cannot reach an agreement [on the terms of a deferred prosecution], I will do my job and prosecute this entity.

It is not my intention to be critical of Governor Christie. To the contrary, I can attest that he has been a very busy, basically sleepless guy the last several days -- a real champ in riding herd over the public utilities that are over-stretched trying to deal with the aftermath of a storm that turned out to be very damaging and left hundreds of thousands of people without power. For all I know, the situation at UMDNJ has not been brought to his attention yet.

Nevertheless, this is a very serious matter, made all the more so by the fact that the hospital has a history of criminality and of currying political favor. As Matt points out, UMDNJ is heavily reliant on federal funding from what is the most militantly pro-abortion administration in history. (According to the UMDNJ website, the amount is about three times the staggering $60 million per annum that Matt posits. UMDNJ represents that in fiscal year 2010, federal agencies provided 46 percent of its whopping $372.5 million in external funding awards -- apparently including two-thirds of its $195.7 million in external research funding awards.) With respect, I'd suggest that the governor must assert himself, light a public fire in his inimitable way under the right derrieres, and make sure both that these nurses' freedom of conscience is protected and that the people who put this noxious policy in place are held accountable.