Andrew C. McCarthy's Blog, page 4

Re: Get With the Beat

Mark, the classic sharia manual, Reliance of the Traveller, expressly endorsed in the preface by scholars at both al-Azhar University in Egypt and the Muslim Brotherhood's American think-tank, the International Institute of Islamic Thought (see here and here), also weighs in on the Religion of Peace's enlightened wife-beating laws. Section m10.12 ("Dealing With a Rebellious Wife") helpfully explains:

When a husband notices signs of rebelliousness in his wife (nushuz), whether in words, as when she answers him coldly when she used to do so politely, or he asks her to come to bed and she refuses, contrary to her usual habit; or whether in acts, as when he finds her averse to him when she was previously kind and cheerful), he warns her in words (without keeping from her or hitting her, for it may be that she has an excuse. The warning could be to tell her, "fear Allah concerning the rights you owe to me," or it could be to explain that rebelliousness nullifies his obligation to support her and give her a turn amongst other wives, or it could be to inform her, "Your obeying me is religiously obligatory"). If she commits rebelliousness, he keeps from sleeping (and having sex) with her without words, and may hit her, but not in a way that injures her, meaning he may not (bruise her), break bones, wound her, or cause blood to flow. (It is unlawful to strike another's face.) He may hit her whether she is rebellious only once or whether more than once, though a weaker opinion holds that he may not hit her unless there is repeated rebelliousness.

The section then elaborates on what it means for a wife to be "rebellious":

It is not lawful for a wife to leave the house except by the permission of her husband, though she may do so without permission when there is a pressing necessity. Nor may a wife permit anyone to enter her husband's home unless he agrees, even their unmarriageable kin. Nor may she be alone with a nonfamily-member male, under any circumstances.... It is obligatory for a wife to obey her husband as is customary in allowing him full lawful sexual enjoyment of her person. It is obligatory for the husband to enable her to remain chaste and free of want for sex if he is able.... If the wife does not fulfill one of the above-mentioned obligations, she is termed "rebellious"[.]

While I am a hater for pointing this out, the people who actually wrote and endorsed what I have pointed out are moderates. See how this works?

Erased from History, Alas . . .

That's what you get for failing to return a reporter's phone calls. From this morning's Wall Street Journal profile of my former boss Mary Jo White, President Obama's nominee to run the SEC: 

Ms. White, Mr. [Robert] Khuzami and another prosecutor made the case for indicting the cleric [i.e., Omar Abdel Rahman, the "Blind Sheikh"] for the [terrorism] plot at a high-level meeting at the Justice Department in Washington, according to people familiar with the meeting.

At least two Justice Department officials raised concerns that the case infringed on the sheik's First Amendment rights to free speech.

Ms. White got the go-ahead from the administration. After the meeting, she turned to the attorneys who would handle the case and said: "All right, now you better win," according to Mr. Khuzami.

Soon after, she charged Mr. Abdel Rahman with violating a Civil War-era statute outlawing plots against the U.S., a law that had been used only once in the modern era. In October 1995, a federal jury convicted Mr. Abdel Rahman for the bomb plot.

The Korean War Is . . . Back On?

North Korea's regime declares that, as far as it is concerned, the 1953 armistice that suspended the Korean War is null and void. The Obama administration counters that Pyongyang lacks the legal authority to abrogate the truce unilaterally. 

Re: Motion to Exclude Jews from Jury in Case About Islamic Supremacist Terror

Nathaniel, as Fred Cohn well knows, that motion is a loser. It's been raised and rejected with numbing regularity in terrorism cases.

The issue in jury selection in any case is whether the juror can be fair and impartial, whether he or she is committed to deciding the case based solely on the evidence and the court's instructions on the law -- without fear or favor. There are very few interpersonal relationships, and no ethnic or racial categories, in which we conclusively presume bias. A reasonably close familial tie would do it -- e.g., you shouldn't sit on a case where, say, your first cousin is accused of a crime. But even being acquainted with the accused is not an automatic basis for exclusion -- if it were, you'd have a hard time getting a jury in a small town. 

There is nothing offensive about being offended by offensive behavior. If a juror is moved to convict someone because the criminal conduct involved and the hatred that motivates it are horrific, that is what is supposed to happen -- that is a conviction based on the evidence, not on a bias against the defendant. If jurors could be removed for cause just because a defendant expressed nasty views about categories of people, a defendant could theoretically render himself un-triable by making nasty statements about a wide range of categories. Women would never be permitted to sit as jurors on rape cases, black Americans would be excluded in trials of white supremacists, and so on.

The motion is what is offensive. In my many years of trying criminal cases, I was always impressed by how honest prospective jurors tended to be regarding their own biases -- they will tell you if they can't be fair and can't decide the case based solely on the evidence, effectively removing themselves for cause. I always thought it was interesting that, in my case anyway, these disqualification motions -- which were directed not only at prospective jurors but at our judge, who was Jewish -- were made by defense lawyers who happened to be Jewish. There is, of course, no more reason to conclude that a Jewish judge or juror could not sit fairly on a case involving Jew-hating terrorists than there is to presume that a Jewish lawyer should be excluded from representing a Jew-hating defendant because the attorney-client relationship might be compromised to a degree that frustrates the constitutional right to counsel.

In any event, the motion will be denied, and, if the defendant is convicted, the matter won't even be raised on appeal because it is frivolous.

BREAKING: Dog Bites Man . . . and Morsi Hates America

On the heels of Secretary of State John Kerry's announcement of another quarter-billion dollars in U.S. taxpayer aid to Egypt, the Blaze has unearthed some more hair-raising video from the "apes and swine" archive of that country's Islamic supremacist president, Mohamed Morsi.

This undated footage features a younger Morsi as an up-and-coming Muslim Brotherhood firebrand, railing at then-president Hosni Mubarak's coziness with Israel and the United States. Morsi's device of choice in the speech is the rhetorical question: He posits a series of them, the obvious answer to each being Mubarak, who is portrayed as selling out the Egyptians to Islam's two mortal enemies:

Who has pushed the nation into the margins? Who has misled it? Who gave in to her enemies? Who tried to sell her in the slave market? Who did that?

And who extended his had to the Zionists? Who has claimed that he wants to make peace with [them] (in order) to keep their chair, to remain in his place? Who’s given [them] the chance to interfere in our business?

Who has brought the Americans here? Who has given [in] to them? Who is dealing with them? Who’s making deals with them, and works for them, and is pleased with crumbs on their tables?

Who’s the one that knows them, who goes to them, who hosts them? Who’s the one who knows their desires? Who knows their countries? Who knows their children? Who obeys them? Who wants to continue having relations with them? 

The Obama administration has evidently convinced itself that Islamic supremacism is the solution, not the problem, in the Middle East. As a result, Islamic supremacists are not vetted before the administration provides billions of dollars in aid and sophisticated weaponry to Egypt -- even as the administration pretends that the "sequester" requires canceling White House tours, releasing illegal aliens from custody, and slashing the national-security budget at home. In fact, had it not been for some superb vetting by Sam Tadros at The Weekly Standard last week, the State Department (joined by First Lady Michelle Obama) would have presented an award to a raging anti-Semite who praised the 9/11 atrocities ("Today is the anniversary of 9/11. May every year come with America burning"). 

But readers of Spring Fever: The Illusion of Islamic Democracy (my book on the so-called "Arab Spring," recently released in paperback) will not be surprised by anything Morsi has said. The book explains why Morsi was the perfect choice for the Brotherhood to push after its preferred candidate, the charismatic Khairat al-Shater, was banned by the then-military government from seeking the presidency: 

Morsi was a condign choice as the Brotherhood’s fallback plan. He is a Shater protégé whose rise in the organization, and to the leadership of the Brotherhood’s Freedom and Justice Party, owed to the backing of his revered patron, as well as to Morsi’s own firm belief in the organization’s traditions of discipline and obedience to hierarchical superiors. He was twice jailed, for brief intervals, during Mubarak’s reign. He is also said to have had a difficult relationship with a rebellious group of young Brothers expelled from the organization during the Tahrir Square uprisings. Morsi adheres fiercely to classical sharia – reportedly, part of his dispute with the renegades involved his support for hardline Brotherhood positions that women and non-Muslims should be barred from running for president and that laws should be vetted by religious scholars. As a parliamentarian during Mubarak’s reign, moreover, he bitterly opposed the regime’s energy trade with Israel (Egypt provides 40 percent of Israel’s natural gas), in addition to arguing that pro-American elements in the regime were trying to weaken both Islamic education and the influence of al-Azhar scholars.

#moreOf course, Morsi's major priority since being elected president (other than promoting Hamas and stumping for the release of the Blind Sheikh) has been to impose a sharia constitution. As recounted in the book, this is what Morsi campaigned on. 

#more#Spring Fever further notes that Morsi was described by Shater as an "architect" of the Brotherhood's "Nahda Project" -- the "Islamic Renaissance" planned for post-Mubarak Egypt. As I recounted on that score:

In April 2011, Shater delivered a lengthy lecture, “Features of Nahda: Gains of the Revolution and the Horizons for Developing.” . . . Shater delivered his words in Arabic to like-minded Islamists – he was not speaking in English for Western consumption, as the Brothers do when they wish to appear as irenic pragmatists.

Shater’s instruction was remarkable. He emphasized that the Brotherhood’s fundamental principles and goals never change, only the tactics by which they are pursued. “You all know that our main and overall mission as Muslim Brothers is to empower God’s religion on earth, to organize our life and the lives of the people on the basis of Islam, to establish the Nahda of the ummah and its civilization on the basis of Islam, and to subjugate people to God on earth.” Shater went on to reaffirm the time-honored plan of the Brotherhood’s founder, Hassan al-Banna, stressing the need for both personal piety and internal organizational discipline in pursuing the goal of worldwide Islamic hegemony.

The lecture dovetailed with a 93-page platform released by the Brotherhood’s Freedom and Justice Party, under the guidance of its leader Mohammed Morsi, a Shater confidant. The platform proposed to put every aspect of human life under sharia-compliant state regulation. The document was unmistakably anti-Western and anti-Israeli: structuring civil society on the foundation of “Arab and Islamic unity”; making the “strengthen[ing] of Arab and Islamic identity” the “goal of education”; making treaties (think: Camp David Accord) subject to approval by the population (i.e., the same population that had just, by a landslide, adopted the Islamist position on constitutional amendments); and describing Israel, “the Zionist entity, [as] an aggressive, expansionist, racist and settler entity.”

The book also relates Patrick Poole's reporting about how Morsi found his gateway to the Brotherhood in the United States while he was a student in California: the Muslim Students Association, the foundation of the Brotherhood's American infrastructure. It was in the MSA that Anwar al-Awlaki cut his teeth; another of its many interesting alumni is Wael Jalaidan, a founder of al-Qaeda. As Spring Fever further notes, Sam Tadros describes the MSA indoctrination program as a lengthy process of study and service that leads to [Brotherhood] membership -- a process “designed to ensure with absolute certainty that there is conformity to the movement's ideology and a clear adherence to its leadership's authority.” 

I have no access to classified information anymore. Everything I was able to find out about Morsi is open-source information, all of which is easily accessible and assimilable. The same can be said of the record of the Holy Land Foundation case, in which the Justice Department proved that the Brotherhood is virulently anti-American, seeking, in the words of its own internal memorandum, "to eliminate and destroy Western civilization from within" by "sabotage." Anyone willing to take the time to investigate, and to bypass political correctness, can easily understand Morsi, the Brotherhood, and the ideology of our enemies. 

Yet, at a time when we are trillions of dollars in debt and the administration is busy demagoguing Republicans over the "painful" cuts required by the sequester that was President Obama's own idea, somehow we're to believe that the Muslim Brotherhood is something Americans need to keep paying for. We will pay for that.

Or Not Zero

Kevin, I don't remember the number of people who leapt to their deaths from the Twin Towers because that seemed better than death in the fires raging within, but I do know it was more than zero.

The threat of jihadists killing thousands of Americans remains very real. I am sympathetic to your veneration of the concept of citizenship, but there's something abstract about it. I've convicted American citizen terrorists, and they were the scum of the earth. Most of the Americans I've otherwise known in connection with terrorism are those who've been maimed, been otherwise badly injured, or had loved ones killed. I don't want our military killing Americans, but I don't want terrorists killing Americans either, and the latter is a lot more common than the former.

If you think repealing the AUMF is the answer, then you are begging for another 9/11-scale attack. Even in the usual case, where there are no or very few Americans on hand in overseas training camps and hide-outs, there is no -- I guess I should say, zero -- authority to hit terrorist havens overseas with military force unless there is a congressional authorization of military force.

Some take the position that any one of those places is an imminent attack waiting to happen, and therefore the president does not need authorization. I don't -- I believe that by vesting Congress with the power to declare war, the framers meant to give Congress real power over the commitment of U.S. forces. Congress can restrict the president's authority to use force by changing the AUMF. Even though I think it would be a mistake, I appreciate that some Americans think it is time to return to a peacetime criminal-justice paradigm, in which all terrorists, including enemy combatants, must be tried in civilian courts. But that is not the only result you'd get from scrapping the whole AUMF; in addition: (a) you'd have to release all detainees who cannot be tried (enemy combatants may only be detained indefinitely under the laws of war, and if there is no AUMF, then we are no longer under the laws of war), and (b) you'd have to cease military operations. A big part of what has kept the country safe from domestic attack for the last 12 years is the killing and capturing of high- and mid-level terrorists; their numbers can quickly be replaced but their training and experience cannot. To continue that part of our security strategy, you have to detain and you have to be able to strike terrorist havens. You need some kind of AUMF for that.

So no, I have never supported repealing the AUMF because I think it would be a reckless thing to do. As you know, I vigorously oppose the democracy project and the "hearts and minds" nonsense. But I strongly favor using our military and intelligence capabilities to kill and capture terrorists, and to interrogate them outside the criminal-justice system (I am not advocating "torture"; I am advocating being outside the Miranda rules). Unless you have an AUMF, you can't do those things. Nevertheless, I have been urging for years that the AUMF needs to be amended. I think the enemy has to be better specified (which would give non-combatants more protection), and as you've argued, the definition of "enemy combatant" could stand some narrowing. I also think it would be sensible for Congress to curtail the authorization of force against Americans in the United States -- while I don't think there is much chance that the president will abuse his authority in this regard, some people obviously do, and you can't have a successful security strategy unless there is political support for it.

#more#It would be a mistake to curtail the president's authority when it comes to Americans outside the United States. Contrary to your suggestion, this has nothing to do with "the convenience of the authorities." It has to do with the fact that Americans who voluntarily leave our homeland have no right to expect the protection of the Constitution in places where the Constitution does not govern. The rationale for treating American enemy combatants differently when they are confronted inside our territory is that we govern our territory and therefore it is reasonable to rely -- in this conflict -- on the police and other domestic law-enforcement/internal-security forces. We do not have that luxury overseas -- that's a matter of law, not convenience.

What's more, it matters a great deal that Congress has authorized military force. Once the people's representatives put the country at war, the national priority is to defeat our enemies -- figuring what due process the enemy should get is a subordinate concern. An American who not only travels outside the United States but intentionally goes to lawless countries and remote locales that are sanctuaries for the enemy has no right to expect the protections of the Constitution and has no right to frustrate the nation's war effort. If the rest of our citizens have, through Congress, authorized warfare against al-Qaeda, and we find Ayman al-Zawahiri (who only travels with those he trusts) in a safe house in Afghanistan, are we supposed to refrain from firing a missile at the safe house because one of the people in the room is an American citizen? Don't the citizens in whose name Congress authorized war against mass murderers have a right to life too?

Further, if the AUMF were tightened up in a way that better specified who the enemy is and what one must do to qualify as an enemy combatant, that would be adequate protection for Americans overseas. I am not suggesting that this would eliminate the possibility of war powers being abused, but there is no way to eliminate that possibility.

As you've been good enough to note, I've also been advocating (for the last nine years) for the creation of a national-security court. Because neither the civilian nor the military justice system is a neat fit for the current conflict, the idea is to design a framework that provides a suitable quantum of due process (including judicial oversight) that permits detainees to challenge their designation as enemy combatants. Such a court could also handle war-crimes trials, surveillance issues, and other related matters. This, too, would reduce the power of the executive branch to make unilateral determinations about who the enemy is (authority the commander-in-chief was understood to have from 1787 until the 2004 Hamdi case), hopefully without doing material harm to intelligence collection, which is vital to counterterrorism.

In sum, I am not insensitive to the concerns you're raising and that Senator Paul has been raising. They deserve careful consideration (which I've spent many years giving them). They may also deserve more action than I've thus far been persuaded is necessary. These are sometimes excruciatingly tough issues. But while I could be wrong about some of this, Kevin, so could you. With due (meaning great) respect, your side needs to be more realistic about the accommodations liberty has to make if we are going to have security. This is never an easy balance, even in peacetime or against a more traditional, predictable nation-state enemy. It is especially hard with an enemy that consistently defines barbarity down. (The late chief justice William Rehnquist's useful book, All the Laws But One -- Civil Liberties in Wartime, demonstrates that it is the history of our country to go overboard on security in wartime -- in ways far more offensive to liberty than we've seen since 9/11 -- but ultimately to improve civil rights in response.) 

One last thing. You're right to say "It's always zero, until it isn't." If someone had told me on September 10, 2001, that an American president might someday order the armed forces shoot down planes carrying hundreds of innocent American citizens, I'd probably have snarked that that had happened exactly zero times in the last 214 years. Before 9/11, I'm betting that Senator Paul could have given an impressive, passionate speech about the outrage of presidents claiming the authority to kill not suspected American terrorists but totally innocent Americans. And I can only imagine what a blithering idiot any attorney general would look like after a lawyer as gifted as Senator Cruz got through with him for equivocating over whether such a thing was unconstitutional. But then 9/11 happened, and President Bush and Vice President Cheney were faced with a stark, horrifying choice I doubt any of us had ever considered before: Do we shoot down a couple of hundred of innocent Americans if that's what's necessary to stop the plane they're in from striking its target and killing several thousand Americans? The shoot-down order was given; thank God the attacks turned out to be over by then and the order never had to be carried out.

As I argued in the column today, Hamilton was right to say that potential threats to a nation are infinite and cannot be predicted with certainty. I don't mean any arrogance or disrespect in maintaining we should not curtail the powers that might be necessary to repel them. Just the opposite. I am not nearly smart enough to know what we might have to do. No one has to convince me that President Obama abuses many of his powers, and that is a real worry. But those powers are in Obama's hands only temporarily; they belong to the office of the president, and they are there because they may be necessary to protect or even save the country. If the occupant of the office is untrustworthy, you do your best to rein in the occupant, not the powers.  

Or not zero

Kevin, I don't remember the number of people who leapt to their deaths from the Twin Towers because that seemed better than death in the fires raging within, but I do know it was more than zero.

The threat of jihadists killing thousands of Americans remains very real. I am sympathetic to your veneration of the concept of citizenship, but there's something abstract about it. I've convicted American citizen terrorists, and they were the scum of the earth. Most of the Americans I've otherwise known in connection with terrorism are those who've been maimed, been otherwise badly injured, or had loved ones killed. I don't want our military killing Americans, but I don't want terrorists killing Americans either, and the latter is a lot more common than the former.

If you think repealing the AUMF is the answer, then you are begging for another 9/11-scale attack. Even in the usual case, where there are no or very few Americans on hand in overseas training camps and hide-outs, there is no -- I guess I should say, zero -- authority to hit terrorist havens overseas with military force unless there is a congressional authorization of military force.

Some take the position that any one of those places is an imminent attack waiting to happen, and therefore the president does not need authorization. I don't -- I believe that by vesting Congress with the power to declare war, the framers meant to give Congress real power over the commitment of U.S. forces. Congress can restrict the president's authority to use force by changing the AUMF. Even though I think it would be a mistake, I appreciate that some Americans think it is time to return to a peacetime criminal-justice paradigm, in which all terrorists, including enemy combatants, must be tried in civilian courts. But that is not the only result you'd get from scrapping the whole AUMF; in addition: (a) you'd have to release all detainees who cannot be tried (enemy combatants may only be detained indefinitely under the laws of war, and if there is no AUMF, then we are no longer under the laws of war), and (b) you'd have to cease military operations. A big part of what has kept the country safe from domestic attack for the last 12 years is the killing and capturing of high- and mid-level terrorists; their numbers can quickly be replaced but their training and experience cannot. To continue that part of our security strategy, you have to detain and you have to be able to strike terrorist havens. You need some kind of AUMF for that.

So no, I have never supported repealing the AUMF because I think it would be a reckless thing to do. As you know, I vigorously oppose the democracy project and the "hearts and minds" nonsense. But I strongly favor using our military and intelligence capabilities to kill and capture terrorists, and to interrogate them outside the criminal justice system (I am not advocating "torture"; I am advocating being outside the Miranda rules). Unless you have an AUMF, you can't do those things. Nevertheless, I have been urging for years that the AUMF needs to be amended. I think the enemy has to be better specified (which would give non-combatants more protection), and as you've argued, the definition of "enemy combatant" could stand some narrowing. I also think it would be sensible for Congress to curtail the authorization of force against Americans in the United States -- while I don't think there is much chance that the president will abuse his authority in this regard, some people obviously do, and you can't have a successful security strategy unless there is political support for it.

It would be a mistake to curtail the president's authority when it comes to Americans outside the United States. Contrary to your suggestion, this has nothing to do with "the convenience of the authorities." It has to do with the fact that Americans who voluntarily leave our homeland have no right to expect the protection of the Constitution in places where the Constitution does not govern. The rationale for treating American enemy combatants differently when they are confronted inside our territory is that we govern our territory and therefore it is reasonable to rely -- in this conflict -- on the police and other domestic law-enforcement/internal-security forces. We do not have that luxury overseas -- that's a matter of law, not convenience.

What's more, it matters a great deal that Congress has authorized military force. Once the people's representatives put the country at war, the national priority is to defeat our enemies -- figuring what due process the enemy should get is a subordinate concern. An American who not only travels outside the United States but intentionally goes to lawless countries and remote locales that are sanctuaries for the enemy has no right to expect the protections of the Constitution and has no right to frustrate the nation's war effort. If the rest of our citizens have, through Congress, authorized warfare against al Qaeda, and we find Ayman al-Zawahiri (who only travels with those he trusts) in a safe-house in Afghanistan, are we supposed to refrain from firing a missile at the safe-house because one of the people in the room is an American citizen? Don't the citizens in whose name Congress authorized war against mass-murderers have a right to life too?

Further, if the AUMF were tightened up in a way that better specified who the enemy is and what one must do to qualify as an enemy combatant, that would be adequate protection for Americans overseas. I am not suggesting that this would eliminate the possibility of war powers being abused, but there is no way to eliminate that possibility.

As you've been good enough to note, I've also been advocating (for the last nine years) for the creation of a national security court. Because neither the civilian nor the military justice system is a neat fit for the current conflict, the idea is to design a framework that provides a suitable quantum of due process (including judicial oversight) that permits detainees to challenge their designation as enemy combatants. Such a court could also handle war crimes trials, surveillance issues, and other related matters. This, too, would reduce the power of the executive branch to make unilateral determinations about who the enemy is (authority the commander-in-chief was understood to have from 1787 until the 2004 Hamdi case), hopefully without doing material harm to intelligence collection, which is vital to counterterrorism.

In sum, I am not insensitive to the concerns you're raising and that Sen. Paul has been raising. They deserve careful consideration (which I've spent many years giving them). They may also deserve more action than I've thus far been persuaded is necessary. These are sometimes excruciatingly tough issues. But while I could be wrong about some of this, so could you. With due (meaning great) respect, your side needs to be more realistic about the accommodations liberty has to make if we are going to have security. This is never an easy balance, even in peacetime or against a more traditional, predictable nation-state enemy. It is especially hard with an enemy that consistently defines barbarity down. (The late Chief Justice William Rehnquist's useful book, All the Laws But One -- Civil Liberties in Wartime, demonstrates that it is the history of our country to go overboard on security in wartime -- in ways far more offensive to liberty than we've seen since 9/11 -- but ultimately to improve civil rights in response.) 

One last thing. You're right to say, "It's always zero, until it isn't." If someone had told me on September 10, 2001, that an American president might someday order the armed forces shoot down planes carrying hundreds of innocent American citizens, I'd probably have snarked that that had happened exactly zero times in the last 214 years. Before 9/11, I'm betting that Sen. Paul could have given an impressive, passionate speech about the outrage of presidents claiming the authority to kill not suspected American terrorists but totally innocent Americans. And I can only imagine what a blithering idiot any attorney general would look like after a lawyer as gifted as Sen. Cruz got through with him for equivocating over whether such a thing was unconstitutional. But then 9/11 happened, and President Bush and Vice President Cheney were faced with a stark, horrifying choice I doubt any of us had ever considered before: Do we shoot down a couple of hundred of innocent Americans if that's what's necessary to stop the plane they're in from striking its target and killing several thousand Americans? The shoot-down order was given; thank God the attacks turned out to be over by then and the order never had to be carried out.

As I argued in the column today, Hamilton was right to say that potential threats to a nation are infinite and cannot be predicted with certainty. I don't mean any arrogance or disrespect in maintaining we should not curtail the powers that might be necessary to repel them. Just the opposite. I am not nearly smart enough to know what we might have to do. No one has to convince me that President Obama abuses many of his powers, and that is a real worry. But those powers are in Obama's hands only temporarily; they belong to the office of the president, and they are there because they may be necessary to protect or even save the country. If the occupant of the office is untrustworthy, you do your best to rein in the occupant, not the powers.  

What Rand Paul Misses

It was Wednesday, shortly before Senator Rand Paul’s bravura 13-hour filibuster, the Jimmy Stewart star turn in Paul’s crusade to have the Constitution ban a bogeyman of his own making: the killing of American citizens on American soil by America’s armed forces -- a scandal that clearly cries out for action, having occurred exactly zero times in the 20 years since jihadists commenced hostilities by bombing the World Trade Center.

At a hearing of the Judiciary Committee, Senator Ted Cruz was grilling Attorney General Eric Holder. Cruz seemed beside himself -- in the theatrical spirit of the day -- over Holder’s refusal to concede that the imaginary use of lethal force conjured up by Paul would be, under any and all circumstances, unconstitutional. The attorney general preferred the fuzzier term “inappropriate” -- at least until Senator Cruz finally browbeat him into saying that by “inappropriate” he meant “unconstitutional.”

Fuzzy was better. To be sure, Cruz is an accomplished constitutional scholar and a favorite of mine, and I can say neither of those things about the attorney general. Yet my sympathies were with Holder. I found myself wishing he’d stood by his equivocal guns.

#ad#I need to be careful here. To cross Paul admirers can mean being cast into the neocon darkness, along with all those other cogs in the military-industrial complex who dream of a global American empire -- and that’s even when the offense is not compounded by suggesting that Eric Holder might have been right about something. So let me say outright: I am against using our armed forces to kill our citizens in our homeland.

That puts me in the same camp as about 99.9 percent of Americans. In part, that owes to our natural, patriotic predilection. But there’s another part of the explanation -- just as important, but less well noticed: After 20 years, we understand the particular conflict we are in. We can confidently say that, in the war authorized by Congress a dozen years ago, we do not need to use lethal military force inside our country.

You see, there is a right way to do what Senator Paul says he wants to do, a way that does not involve messing around with the Constitution in a manner we will come to regret. Contrary to Senator Paul’s assertions, and those of senators Cruz and Mike Lee, who lent their voices and scholarly heft to Paul’s filibuster, the Constitution does not prohibit the use of lethal force in the United States against American citizens who collude with the enemy.

American history and jurisprudence teach that American citizens who join the enemy may be treated as the enemy: captured without warrant, detained indefinitely without trial, interrogated without counsel, accused of war crimes without grand-jury proceedings, tried by military commission without the protections of civilian due process, and executed promptly after conviction. That is because these measures are permissible under the laws of war, and the Constitution accommodates the laws of war -- they are the rule of law when Congress has authorized warfare.

Under the laws of war, enemy combatants may be subjected to lethal force -- that’s usually the idea. It makes no sense to conclude that the Constitution abides all the aforementioned departures from peacetime due process but prohibits the killing of American enemy combatants#...#particularly when the proponents of this novel claim are quick to concede that the government is free to use lethal force against American enemy combatants once they leave our territory.

The Constitution enables the government to marshal all the might necessary, under any conceivable circumstances, to quell threats to the United States. The Framers, with a humility that contrasts sharply with our certitude, understood that some threats could be existential in nature. While the senators busied themselves during the Paul filibuster with Alice in Wonderland and “Stand with Rand” tweets, it might have been worthwhile for someone to read Hamilton’s trenchant observation (from Federalist 23) that

it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite; and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed.

Heedlessly, Senator Paul and his supporters figure they have a handle on the infinite. We can safely assume, they tell us, that the Constitution bars attacks in the U.S. on Americans who -- if you can follow this -- appear to be non-combatants, even if they may be working with the enemy, as long as they are not engaged in “imminent” violence.

#page#Really? Let’s imagine something that, unlike Senator Paul’s speculations, is actually foreseeable -- a scenario based on the way our enemies function, as remote from the Washington debate as that may be. Let’s suppose we have an American scholar of Islam fulfilling the role of the Blind Sheikh -- i.e., a jurist schooled in sharia with sufficient academic depth to be qualified to issue fatwas approving terrorist attacks.

#ad#Ostensibly, our American sheikh might be sitting passively in a mosque, a café, or an apartment. He certainly doesn’t look like an enemy combatant -- especially if, as was the case with the Blind Sheikh, various maladies render him incapable of building a bomb, carrying out an assassination, or doing most things of use to a jihadist cell. Yet in the enemy’s doctrine, attacks cannot happen until he green-lights them. Senator Paul says he’s fine with lethal force against imminent threats. So, when does our sheikh get imminent? When the phone rings? When some other innocent-looking young man comes into the café, sits down at his table, and starts whispering in his ear?

Now, after 20 years, it is probably safe to say there is no need to have our armed forces on alert for this contingency. If the executive branch has enough intel to know who and where this sheikh is, the FBI can arrest him, just as the FBI arrested José Padilla as he disembarked from a plane in Chicago in 2002 -- every bit the enemy combatant, though not yet acting on his mass-murder plot. That is how war power has always worked under the Constitution: Having the technical law-of-war justification to kill José Padilla does not require you to kill him. You do what is sensible under the circumstances.

In the ongoing conflict, the enemy does not have fortifications inside our territory that would enable its operatives to keep the police at bay. As long as we catch them in time, our enemies can be safely taken into custody. And if we catch them on the precipice of deadly action, ordinary law-enforcement principles allow for the use of lethal force to stop them.

But that may not always be the case. We could have enemies with much greater capabilities, enemies including traitorous Americans. The fact that we do not appear to need lethal military force in the homeland in this conflict does not mean we will never need it.

So leave the Constitution alone. The Constitution does not tell us what should or must be done in a particular situation. It tells us the outer limits of what is legitimate in all threat situations. To shackle our power to meet a threat, as Hamilton explained, is to put us in peril.

The goal, according to Senator Paul, is to shackle the president. That is done by trimming his sails in the Authorization for Use of Military Force (AUMF), not by trimming his constitutional power.

Senator Paul has the controversy he sought because the Obama administration arrogantly claimed nigh-limitless power to kill anyone, anywhere, at the president’s whim. There is no reason to believe the president actually intends to abuse such power -- he has not done so to this point and, as National Review’s Editors point out, “the day an administration starts killing Americans with drones at cafés — to borrow one of Rand Paul’s hypotheticals — is the day impeachment proceedings begin.” So, assuming the administration is simply trying to protect the president’s institutional turf, it has made the error of conflating the theoretically limitless power the Constitution could potentially vest in the president if a threat were dire enough with the finite authorization Congress has actually given the president for the use of force in this conflict.

Senators Paul and Cruz have suggested that the constitutional claim they’ve posited -- viz., presidents are not empowered to kill Americans on American soil absent an imminent threat of violence -- is “easy,” “clear,” and “obvious.” I respectfully disagree. It is none of those things. What is easy, clear, and obvious is that if we do not need certain troublesome authorities to fight a war successfully, Congress can withhold them.

Why does it make a difference whether this curtailment comes from the AUMF rather than the Constitution? Because, absent a sudden-attack situation, the Constitution makes Congress the master of what force is lawfully authorized, while our tradition holds that the courts are masters of what the Constitution means.

Since 2004, courts have made themselves a part of the national-security equation to an unprecedented degree. When challenged to construe constitutional doctrines, they seek to impose logic. Senator Paul’s proposal of a Constitution-based no-lethal-force exception to the principle that an American who joins the enemy may be treated like the enemy is not logical.

To iron out the inconsistencies, the courts may well conclude that if Americans are not to be treated as enemy combatants for purposes of lethal force, they should not be treated as enemy combatants for purposes of capture, detention, interrogation, and military war-crimes trials. Furthermore, if they follow the trajectory of the Supreme Court’s 2008 Boumediene decision, courts may well conclude that any core constitutional protections extended to American citizens must also be extended to alien enemy combatants. That would be the end of the law-of-war approach to counterterrorism.

Is that Senator Paul’s objective? I do not know. Many of his libertarian supporters would welcome it. Most Americans would disagree, recognizing that the war paradigm has been instrumental in preventing a reprise of 9/11.

I do know this: If all the senator really has in mind is some curtailment of presidential overreach, the right way to do that is to limit the AUMF. If his ambition is greater, if he believes the country would be better off ending the war paradigm and returning to peacetime due process, the forthright way to do that is to repeal the AUMF. That would be a terrible mistake, but one we could withstand, however painfully. What we might not be able to withstand is the shackling of constitutional powers we may someday need to sustain the United States.

— Andrew C. McCarthy is a senior fellow at the National Review Institute and the executive director of the Philadelphia Freedom Center. He is the author, most recently, of Spring Fever: The Illusion of Islamic Democracy, which is published by Encounter Books.

While You Weren't Looking, Obama Kills Military Commissions

In the blink of an eye, the second Obama term has turned the clock back to the pre-9/11 days, when al-Qaeda was a law-enforcement problem, not a national-security challenge.

Remember the great ruckus over the administration's attempt to give Khalid Sheik Mohammed & Co. a civilian trial in lower Manhattan? In what would, in effect, reward their savagery in killing nearly 3,000 Americans a few blocks from the federal courthouse, the administration proposed to endow them with all the constitutional rights and peacetime civilian due process protections of American citizens, despite the fact that the American people's representatives in Congress -- having authorized wartime combat operations against our jihadist enemies -- had fashioned a military-commission system for the trial of alien enemy combatants. The administration gambit was unsuccessful because the public, even in blue, blue New York City, rose up in protest, spurring congressional outrage and, eventually, legislation barring the executive branch from using public funds to transfer terrorists from Gitmo to the U.S. for civilian prosecution. The message could not have been clearer: For enemy combatants, it is military commissions or no trials at all, not civilian due process.

Well, the administration has never forfeited its goal of returning to the Clinton-era counterterrorism, when all terrorists were deemed defendants presumed innocent, not enemies to be quelled. Now, with the help of President Obama's Islamist confidant, Turkish prime minister Recep Tayyip Erdogan, Obama has found a way around Congress's ban.

Last month, Turkey found itself in custody of longtime al-Qaeda bigwig Sulaiman Abu Ghayth, the son-in-law of Osama bin Laden and described by the FBI as the terror network's "consiglieri." To satisfy its Islamist base, Erdogan's government pretended to extradite the Muslim terrorist to his native Kuwait rather than cooperate with American agencies. But the Turks conveniently shipped Abu Ghayth to Kuwait by way of Jordan . . . where the U.S. has more open, effective counterterrorism cooperation and where our government was thus able to take Abu Ghayth into custody.

So, was this high-ranking member of the enemy forces shipped to Gitmo for long-term detention and interrogation in the hope of gleaning fresh intelligence? Of course not. Because Abu Ghayth was not detained at Gitmo, he was not subject to the statutory prohibition against using government funds to transfer enemy combatants into the U.S. So, while no one was paying attention, the administration whisked him into lower Manhattan, where his indictment in civilian court was promptly announced. He thus promptly received legal representation -- so much for interrogation -- and is enjoying all the protections of the Bill of Rights.

According to a government press release, prosecutors plan to prove the overall al-Qaeda conspiracy against Abu Ghayth -- going back to 1989 and "including the attacks on the United States on September 11, 2001, in New York, Virginia, and Pennsylvania, which killed approximately 2,976 people."

Understand what this means. Other than the relative notoriety of the culprits, bringing Abu Ghayth to New York is no different from bringing KSM to New York for a civilian trial. The Obama administration's intention is to try the same case against Abu Ghayth that it planned to present against KSM. This is a bold presidential decision to undermine military commissions and to proclaim that the civilian courts are the government's venue of choice for all terrorism cases -- even those against wartime enemy combatants.

Moreover, as Attorney General Holder must know, by proceeding with this civilian prosecution in New York at the very moment when  KSM and the other 9/11 defendants are facing a military commission at Gitmo, he has given KSM & Co. an exquisite legal argument that proceeding with their military commission would be arbitrary and unjust in light of the grade-A due process Abu Ghayth is getting. That is, the government is virtually inviting the federal courts to invalidate military commissions -- which was a top goal of many Obama administration lawyers back when they were in private practice, volunteering their services to terrorist detainees. 

As we did in the 1990s, we can pretend that there is no war. I doubt that resurgent al-Qaeda will agree. So while we forfeit interrogation opportunities and shovel our intelligence files to the enemy in compliance with civilian due process protocols, the enemy will continue plotting against us. Al-Qaeda: less vulnerable, more confident, and better informed about our strengths and weaknesses. We've seen how this ends.

But You Are the Pizza Police

To find what is wrong with what passes for opposition to Obama-style Big Government, look no further than this afternoon's confounding post, "The Pizza Police," authored by two Beltway Republican leaders, Reps. Fred Upton (House Commerce Committee chairman) and Cathy McMorris Rodgers (House Republican Conference chairwoman). It is especially precious to find Rep. Upton complaining about the president's "Washington-knows-best regulatory state" in light of his distinction as co-author of the incandescent light bulb ban, his enthusiasm for taxing Americans to underwrite Leviathan's green-energy scam, his support for government bail-outs of favored private industries, and so on.

The two lawmakers' dander is up thanks to the FDA's new menu-labeling rules, promulgated pursuant to Obamacare. These rules compel restaurateurs, including pizza-makers like Domino's, to disclose calorie counts and other "nutritional information" to consumers. So, are our two irate representatives arguing that the American people are sufficiently adult to make their own food choices without government-mandated advice? Are they contending that, in the unlikely event mandates are warranted, such matters are for state or local governments to decide (with the understanding that if they choose to make doing business too onerous, vendors may choose to do business elsewhere)? Perish the thought.

Mr. Upton and Ms. Rodgers are careful to explain that they do not oppose federal intrusion in principle. After all, "providing such information is an important customer service." I obviously missed class the day they taught the Constitution's "Important Clause." Assuming for argument's sake that customers (rather than busy-bodies) find nutrition information important (and pretending that they don't have about a zillion ways to research it), why can't vendors be trusted to provide what is in their interest to provide? Wouldn't market pressures induce them to appreciate their customers' supposed craving for this information? Does a nation that is on the fast-track to $20 trillion in (acknowledged) debt really need government mandates, costly compliance protocols, and an even costlier enforcement bureaucracy for calorie counts?

Apparently so. Upton and Rodgers do not argue that businesses and consumers can work out menu-labeling without government's coercive oversight. And, naturally, that oversight should come from Washington since, the lawmakers write, "a thoughtful national standard in and of itself is not a bad idea, particularly when contrasted to the inefficiency of a growing number of different state and city requirements" -- because, you know, we can see the unparalleled efficiency of Washington's thoughtful national standards everywhere we turn, right?

So, as usual, what has Republican leaders grumbling is not the principle that free people ought to be at liberty to conduct routine business without federal mandates. What irks them is that Obama bureaucrats are marginally more domineering than, say, Bush-era light bulb bureaucrats. (By the way, Daniel Horowitz of RedState reminds us that Rep. Upton's light bulb ban "made its way into the 2007 energy bill [signed by President Bush], which turned out to be the Obamacare of the energy industry.") Upton and Rodgers object to what they call FDA's inflexible "'my way or the highway' approach" to the imposition of government standards. That the imposition itself, quite apart from its obnoxious manner, is offensive never dawns on them. And speaking of offensive, how'd you like this Upton-Rodgers line: "In fact, Congress has previously partnered with the restaurant industry to improve consumers' access to information." Michael Bloomberg and Debbie Wasserman-Shultz wouldn't have written it any differently.

The message: Republicans would do Big Government much smarter than Obama is doing it. Now there's a hill to die on! If you were wondering how Obama could lose 4 million votes from 2008 and still win in 2012 ...