Andrew C. McCarthy's Blog, page 40

The Root-and-Branch Candidate

The question is simple but profound: Will the 2012 presidential-election campaign be about big ideas? Ideas like whether the American people are still masters of their own destiny or instead have resigned themselves to a rule of lawyers advertising itself as “the rule of law”?

To push these fundamentals to the fore is the rationale of Newt Gingrich’s candidacy. If ever there were a big-ideas guy, it’s the former House speaker. Ideas seem to churn out of him faster than the Treasury churns out greenbacks for “green energy.” But do we want to think about them? Newt believes we do -- perhaps not so much that we want to but that we have to think about them, if we are to remain an America that is worth preserving. He is also a historian uniquely sensitive to a unique historical moment.

#ad#The Obama years have pushed the accelerator on what had been a long, inching slide into the progressive abyss. For three-quarters of a century, statism was a Fabian project. It was reminiscent of what Jefferson, explaining his fear of the federal judiciary’s gradual imperialism, described as “working like gravity by night and day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States, and the government of all consolidated into one.”

Bucking this trend, President Obama has leapt way ahead to the endgame: a blizzard of unaccountable czars, nationalized sectors, suffocating regulations, and redistributed trillions. The result is economic stasis, massive unemployment, crony socialism, and the hovering prospect of punishing taxes, crippled productivity, mounting social unrest, and a loss of liberty so dramatic one actually notices that it is happening. Americans have now seen the future, and, in growing numbers, they are horrified by it.

In addition, after three years of watching congressional Democrats slavishly toe the line -- watching spectacles such as majority leader Harry Reid’s decision to blow up time-honored Senate parliamentary rules just to avoid taking a vote that would embarrass the president -- Americans are also grasping that what makes Obama and his Occupy Wall Street base “radical” is mainly their impatience. They want -- right now -- the end of history that the progressive establishment has heretofore been content to crawl toward, inch by cautious inch.

One of the few virtues of Obama’s pedal-to-the-metal approach is that it forced Democrats to choose sides. They’ve chosen him over a public that repeatedly shows it does not want what he’s redistributing. In the 2010 elections, that choice proved catastrophic for Democrats, but the rout hasn’t mattered. They’re still with him, because they accept his premises even if they’re not crazy about his pace. That illustrates that the trajectory we’ve been on since the 1930s leads inexorably to where the Obama Left wants to go. There is a reason why Bill Buckley yelled, “Stop!” -- not “Slow down!” -- as he stood athwart history.

So here is the dilemma: We have a moment in time in which it is possible to demonstrate, starkly, that statism does not work, and therefore that it ought to be removed root and branch. That argues not only for dumping Obama but also for rolling back the tide of which Obama is merely the most destructive wave. On the other hand, Obama is uniquely destructive. Therefore, the GOP Beltway Bible instructs, our priority is to come up with a safe candidate -- one who is smooth enough to fade into the woodwork and make the election solely about the president. This is no time to scare people, the pros tell us. Let’s not get independents fretting about some conservative counterrevolution.

#page#Newt Gingrich has a wealth of GOP establishment ties, but he is not the GOP establishment guy. He knows how to play the game, but he has always had his own very strong ideas about how it ought to be played -- and he has been the smartest guy in the room enough times to realize counterrevolutions are not impossible, even if the conventional wisdom says so. Yes, ideas do pour out of him prolifically, and -- law of averages being what it is -- every now and then they are clunkers. But while such dalliances on health care and climate change make conservatives wince, we also should realize that, most of the time, nobody does it better. Certainly no American politician says the things that need to be said more convincingly.

#ad#Newt will never be the safe candidate. But he could be the root-and-branch candidate. And the branch he is currently targeting for deracination is the federal judiciary. In his “21st Century Contract with America,” a bold action item is: “Bringing the courts back under the Constitution and the rule of law.”

And bold it is. For more than a half-century, it has been monotonously proclaimed that the judges are the last word on what the law is, and, therefore, that not only the litigants in the case but the whole of society must yield to their decisions. It has become easy to forget -- or to have never known -- that it was not always this way. As Gingrich argues in a position paper he rolled out with a speech on Friday, there is nothing in the Constitution that stands for this proposition. It is a promotion the Warren court gave itself in 1958, in a gambit Stanford Law School dean Larry Kramer aptly described as “not reporting a fact so much as trying to manufacture one.”

In his famous Marbury v. Madison opinion, Chief Justice John Marshall reasoned that it was the task of judges to say what the law is. This was not, however, the declaration of “the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution” -- the lavish gloss the Warren court put on it in Cooper v. Aaron. Indeed, Jefferson was far from alone in concluding that “to consider the judges as the ultimate arbiters of all constitutional questions” was “a very dangerous doctrine” that “would place us under the despotism of an oligarchy.” Lincoln, too, perceived the peril to popular sovereignty: “If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court,” he pointed out, “the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”

The framers believed neither that the courts were supreme nor that the political branches accountable to voters were somehow relieved of the obligation to consider the constitutionality of government action. They thought the judiciary would be the least dangerous branch because its only asset was judgment -- it had no capacity to enforce its own rulings, and it was beholden to Congress, which could place severe limits on its jurisdiction and disestablish any lower courts it had chosen to create. Because the three branches were taken to be coequals, it was thought obvious that two joining together could undo the excesses of one.

It was thus never meant to be the case, Gingrich contends, that outrageous Supreme Court rulings could be reversed only by amending the Constitution. He makes a stark case that the very notion is absurd. The arduous amendment process requires the approval of supermajorities of Congress and the states. Yet a Supreme Court ruling that cannot be overcome because of these daunting democratic hurdles can be reversed, in the bat of an eye, by a later Supreme Court ruling -- by the vote of a single, politically unaccountable justice in a 5–4 decision.

If he were elected president, Gingrich promises, he would pursue a series of concrete steps to reestablish the original balance of constitutional power -- the balance designed to ensure that Americans decided important affairs of state democratically rather than having decisions imposed on them by unelected lawyers. In passing laws, the political branches would make use of Congress’s constitutional authority to deny courts jurisdiction to hear categories of cases, something about which progressives will no doubt shriek#...#at least until someone catalogues the provisions to avoid judicial review that are written into the Obamacare statute.

Following the example of President Jefferson and the early 19th century Congress, Gingrich foresees the political branches’ eliminating courts that consistently attempt to rewrite the laws and impose their personal predilections. In particularly egregious cases, judges could be impeached for ignoring the Constitution and failing to heed the legitimate prerogatives of the political branches. Congress could use its power of the purse to defund enforcement of lawless rulings, and the political branches could ignore them -- as they did in the Civil War era with respect to aspects of the notorious Dred Scott decision. We could go back to the Lincoln formulation, which conceded the binding nature of judicial rulings on private litigants in a particular case but denied that these rulings operated as precedents binding on the American people and their elected representatives.

It is an interesting, provocative argument -- one that makes you think things do not have to be the way they are if we have the will to make them the way they were intended to be. That is to say, it is Gingrich at his best. His best is a force to be reckoned with. Here’s hoping that the safe candidates will be asked to reckon with his big ideas.

—  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 .

Hillsdale at Lunch Time

I'm taking the choo-choo to DC to speak about the Muslim Brotherhood at Hillsdale. If you get a chance to swing by, stop and say hello. Details are here, and info about the live webcast is here.

Hillsdale Friday

I'm very much looking forward to Friday. For the second time, I'll be delivering a "First Principles on First Fridays" lecture at Hillsdale College's Kirby Center for Constitutional Studies & Citizenship in Washington. My topic is "Let's All Celebrate the Arab Spring" "The Global Threat of the Muslim Brotherhood."

Particularly with bands of incoherent Hopeychangers agitating across the country for ... they're not sure what -- but getting plenty of fawning media attention while they do it -- there's something really refreshing about the prospect of spending time at Hillsdale, with students and faculty who take pride in the America that we have. If you happen to be in the area and want to attend, Hillsdale has posted registration information here. There will also be a live webcast, and information about that is here.

The President and the Panthers

A couple of days ago, I pointed readers to Andrew Breitbart's report about President Obama's having appeared and marched with members of the New Black Panther Party in Selma in 2007. The report, and my alerting readers to it, caused some shrieking in predictable quarters on Left, as well as some negative criticism from people of good will. It was said to be taken out of context: The march in Selma was not an Obama/Panther event; it was a major event associated with the history of the civil rights movement, and it drew thousands of people, including notables like Hillary Clinton and Al Sharpton. Consequently, the Breitbart story and accompanying photos, micro-focused on Obama and Panther figures, were said to be misleading, as was the suggestion that they were "shocking" -- a word Andrew used and I repeated in my post.

Let me make a couple of points in response. In retrospect, I think the word shocking was a bit on the hyperbolic side -- but only a bit. As someone who spent much of his professional life in the Justice Department and cares deeply about it as an institution, I remain shocked and outraged over the Department's handling of the New Black Panther Party case: specifically, because DOJ deep-sixed a case it had already won against bad guys who clearly violated the civil rights laws; and more significantly, because it is unconstitutional and profoundly offensive for the current Justice Department to adhere to a policy of intentional racial discrimination in the enforcement of civil rights statutes that are meant to protect all Americans. I should perhaps do a better job of separating how I feel about the Panthers case from my assessment of each new piece of information that in some way connects President Obama and his minions to Panther figures, but I can't help finding it all repulsive.

I was not trying to hide the fact that other Democratic notables were at the Selma event. It was in Andrew's report, which I linked to -- and the whole point of my post was to encourage people to read Andrew's report. I didn't discuss Hillary Clinton and Al Sharpton for two reasons. First, unlike Barack Obama, they do not run an administration that allowed itself to be heavily lobbied by Panther apologists before dismissing a case that the government had already won -- and won because, besides being in violation of the law, the Panthers contemptuously refused to answer court process. (In my time at DOJ, contempt of the judicial process was a reason to press forward with a case, not dismiss it.)

Second, I relied on the portion of Andrew's report that indicated Obama's interplay with the Panthers in Selma was of a different character than that of the other prominent Dems. As Andrew put it, "It is true that then-Senator Hillary Clinton and Al Sharpton were also in Selma at the same event. But the Panthers explicitly came to Selma to support Obama, as [J. Christian] Adams details in Injustice. They spoke with Obama at the podium ..., and departed together with Obama for the main march itself, as shown by this granier image" -- a still culled from a YouTube video that Andrew posts with his report. 

I did not rely on that passage in a vacuum. I have gotten to know Christian Adams a bit. He is the former Justice Department lawyer who exposed the NBPP scandal, and I'm familiar with what he has written about it. His book, Injustice: Exposing the Racial Agenda of the Obama Justice Department, was just published this week. I've now had a chance to buy the book and read the section pertaining to the Selma rally.

Christian makes a strong case that the Panthers made an effort to demonstrate support for Obama in Selma. It is much more ambiguous whether Obama reciprocated. Clearly, he was not embarrassed to be in their company or by their indications of support. But, though Christian observes that Obama had reason to believe passive acceptance of the Panthers' support would help him at time, Christian does not claim that Obama did anything affirmative to encourage them. As he puts it, "In the end, nobody knows what Obama thought about the Panthers' demonstration of support for him, because the media never asked him about it." The claim that Obama spoke with Panther leader Malik Shabazz that day appears to come from Shabazz himself -- Christian points to no other evidence besides Shabazz's telling a reporter that they spoke (and providing no details about the substance of the conversation). And while it appears the Panthers made efforts to stay close to Obama during the march, there's no proof that Obama invited them to do that. He didn't shoo them away, either -- and, to me, that is a salient fact given how disgusting are the Panthers' views. But it was a huge march, and it's not like the Panthers were only marching with Obama.

In my mind, this episode is important for two reasons. First is the double-standard: no Republican or conservative politician would survive politically if he permitted himself to be in the company of a racist hate group; if these were photos of Sarah Palin or Chris Christie surrounded by Klansmen or neo-Nazis, the media would run them incessantly. There would be no rationalizing that they needed to be placed in context -- and if the hate group had gone out of its way to endorse a Republican candidate, that would be big news; it wouldn't be dismissed, as the media dismisses the NBPP's endorsement of Obama, as something over which the poor candidate had no control.

Second, again, I do not think the Selma event can be compartmentalized and discounted as if the Obama Justice Department's dismissal of the NBPP case had never happened. As Christian relates, Obama's interplay with the Panthers in Selma might have been happenstance to which Obama was indifferent; it might have been happenstance that he exploited to what he believed at the time was his advantage; or it might have been a predetermined collaboration. We just don't know, because Obama was not vetted like other candidates are vetted.

The result is ambiguity. When there is ambiguity, you have to look at everything else you know in order to try to interpret the event in question. When it comes to Selma, the everything else we know prominently includes the subsequent, strange dismissal of the NBPP case and the adoption of an enforcement policy in which DOJ refrains from using the civil rights laws to protect white victims from black transgressors.

Given that, I'm inclined to believe the Selma event is relevant in our assessment of Obama -- not something that should be sloughed off. To those who say my post should have been more measured and should have added more context, I think the point is well taken. To those who say it's a non-story, I respectfully disagree.

Holder's Dubious History

House Republicans are now calling for a special counsel to investigate whether Attorney General Eric Holder perjured himself in congressional testimony about the scandalous Fast & Furious program. Specifically, the attorney general claimed on May 3 that he had only “over the last few weeks” heard about the reckless gun-walking program his Justice Department was running with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) -- a program in which guns were steered to violent Mexican gangs with predictably lethal results, including the murder of a Border Patrol agent. Contrary to Holder’s testimony, it is now being reported that he had actually been receiving briefings on the program since early summer 2010.

I’m shocked, shocked to hear it.

In truth, I’d be very surprised if it turned out that Mr. Holder was as much in the dark as he claims. Fast & Furious was a very strange and controversial program, and there was plenty of Justice Department participation in it: ATF is a Justice Department agency; the investigation was being conducted jointly with a U.S. attorney’s office (i.e., a DOJ district office); the investigation featured eavesdropping applications, which have to go through the Justice Department; and White House officials were apparently being briefed about the program. It would be odd indeed if the AG were out of the loop. To be clear, though, I have no idea who knew what, and when. We’ll just have to see how that plays out.

For the moment, my point is simply this: No one ought to be surprised by what is happening. Readers may recall my vigorous contentions that Mr. Holder’s history should disqualify him from serving as attorney general (see, e.g., here, here, here, here, here). President Obama should not have nominated him, and I urged that the Senate not confirm him. Beltway Republicans, however, rallied to Holder’s defense, and Senate Republicans dutifully joined their Democratic counterparts in overwhelmingly approving his appointment.

One of the many arguments I made was based on Holder’s record of providing misleading congressional testimony.

When he served as Clinton-administration deputy attorney general, Holder engineered the scandalous Marc Rich pardon by creating a rogue procedure that allowed the fugitive fraudster and his attorneys to appeal directly to President Clinton rather than go through DOJ’s regular pardon process. The regular process would have required input from the U.S. attorney’s office handling Rich’s case -- the Southern District of New York, where I worked for many years (including when the pardon was granted). That input would have doomed the pardon by making Clinton undeniably aware of the nature and dimension of Rich’s criminal conduct.

By keeping the prosecutors who knew about Rich’s case out of the process, Holder ensured that Clinton was one-sidedly exposed to the Rich camp’s version of events. This greatly benefited Rich’s legal team, which was led by former Clinton White House Counsel Jack Quinn, a close confidant of Vice President Al Gore. When he was helping Rich in 1999 and 2000, Holder was hoping to be made attorney general in what Democrats were confident would be a Gore administration.

I don’t want to rehash all the unsavory details; I just want to focus on the following: When Clinton’s pardon of Rich blew up, Congress held hearings. Despite the fact that he had interceded on Rich’s (and Quinn’s) behalf even before the pardon shenanigans, Holder told the Senate Judiciary Committee in 2001, under oath, that “Mr. Rich’s name was unfamiliar to me” in 1999, when Quinn first beseeched Holder to help Quinn try to convince SDNY prosecutors to drop the charges. Holder elaborated that he had “gained only a passing familiarity with the underlying facts of the Rich case” when, in the ensuing months, he helped push for the pardon. He claimed that he had been too busy to inform himself about the case of the criminal for whom he was lobbying -- a man who had been on the FBI’s top-ten list of wanted fugitives.

Based largely on Holder’s rambling and often incredible testimony, which stressed his purported ignorance of Rich’s background, a House investigation concluded that the “sum total” of Holder’s  “knowledge about Rich came from a page of talking points provided to him by Jack Quinn in 2000.” The House Government Operations Committee concluded that Holder’s behavior in the Rich affair had been “unconscionable,” but it took no further action.

Eight years later, when President Obama nominated him to be attorney general, Holder clung to his protestations of ignorance. At the nomination hearing, Arlen Specter, then the ranking Republican on the Senate Judiciary Committee, pointedly asked, “Were you aware of the kind of record this man [Rich] had?”

#page#

Here’s Holder’s response:

No I was not. And that was one of the mistakes that I made. I did not really acquaint myself with his record. I knew that the matter involved -- it was a tax-fraud case; it was a substantial tax-fraud case. I knew that he was a fugitive. I did not know a lot of the underlying facts that you have described.

In written follow-up questions, Specter pressed again: “Did you receive information about the facts of the Rich case from anyone other than Mr. Rich’s attorney, Jack Quinn?”

Holder tersely responded, “No.”

#ad#Yet, as I pointed out in the days before Holder’s confirmation, none of this appears to have been true. It is a virtual certainty that Holder knew quite a bit about Rich, years before he was approached to assist the Rich pardon effort.

Before becoming deputy attorney general, Holder was the Clinton-appointed U.S. attorney for the District of Columbia. In 1995 -- years before Holder got his talking points from Quinn -- Holder’s office filed a civil suit against a Swiss trading company called Clarendon, Ltd. Why? Because, in obtaining $45 million in government contracts, Clarendon had concealed its intimate relationship with the dastardly, notorious federal fugitive#...#Marc Rich.

It turned out that Holder’s office had been conducting an investigation into Rich and his business interests for tax evasion and other suspicious activity. Not surprisingly, then, the civil complaint U.S. attorney Holder filed against Clarendon exuded familiarity with Rich. Indeed, the premise of the complaint was that Rich’s sordid history of fraud and his status as a fugitive from justice rendered him ineligible for government contracts. Therefore, the suit alleged, Clarendon was liable for hiding the fact that Rich controlled the company.

The complaint screams out knowledge of Rich’s corporate holdings and his tortuous efforts to obscure his connection to the company. Holder’s office also recounted that Rich had blatantly obstructed justice in a grand-jury investigation. One of his companies ended up paying $21 million in contempt fines, the complaint reported. And although a number of Rich companies ended up pleading guilty to various charges, Holder’s office took pains to point out that their “plea agreement did not resolve any of the personal charges pertaining to Rich” and his accomplice, Pincus Green. Those charges, the complaint asserted, “remained outstanding.”

And the matter doesn’t stop at the complaint. Holder’s office held extensive negotiations with Clarendon and, as it happens, Clarendon’s principal. Astoundingly, Holder’s office not only had discussions with company attorneys but actually accepted an affidavit from Rich -- then one of the country’s most infamous fugitives -- in the course of settling the case.

Ultimately, U.S Attorney Holder agreed to dismiss the case in exchange for a payment to the government of $1.2 million. Naturally, though, it was not enough just to reach a settlement. Justice Department officials like to trumpet the conclusion of their high-profile cases as successes, and D.C.’s United States attorney was no exception. On April 13, 1995, the Wall Street Journal reported Holder’s public announcement of the settlement and of the fact that his office was ending its probe of the Rich conglomerate.

To summarize, at the pardon hearings in 2001, Eric Holder testified before Congress that he had barely known who Marc Rich was when he went to bat for Rich in 1999 and 2000. At his confirmation hearing in 2009, Holder repeated this testimony that errors in judgment had stemmed from his failure to acquaint himself with Rich’s sordid record. In point of fact, however, Holder had actually overseen an investigation of Rich and his companies years earlier, precisely premised on the fact that a Rich company had hidden its connection to the fugitive and his extensive record of fraud and obstruction. Holder had even publicly announced a lucrative settlement.

Sound familiar?

#page#

None of this is new news. While the Senate was considering Holder’s nomination, I laid the facts out in an NRO column on January 21, 2009. Four days later, I reported that Holder had again claimed ignorance about Rich in his written answers to follow-up questions. I pleaded that he be further pressed on the matter -- not only by Republicans but by Democrats who, during the tenure of Bush AG Alberto Gonzales, had been strident in emphasizing the obligation of attorneys general to provide Congress with truthful, accurate testimony.

#ad#Alas, Senate Republicans were apparently mollified by private assurances Holder reportedly made to them to the effect that, if he were confirmed, the Justice Department would not seek to prosecute officials involved in the Bush-era enhanced-interrogation program. (I’m constrained to observe that, in the event, Holder reopened investigations against CIA officers involved in the program and continued professional-responsibility probes of Bush DOJ officials who had provided opinions about the program’s legal validity.) Cowed by the prospect of opposing confirmation of the nation’s first African-American attorney general -- as if there were anything wrong with rejecting a nominee of any heritage who had a record as checkered as Holder’s -- the senators decided Holder’s troubling testimony was not worth pursuing. He was confirmed 75 to 21, with substantial GOP support.

You reap what you sow.

 --- 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 .

Detaining Alien Enemy Combatants in the Civilian System

Here we go again. 

Khalfan Khamis Mohamed (KKM) helped build the bomb detonated in August 1998 at the U.S. embassy in Dar es Salaam. He was convicted of being part of the al Qaeda conspiracy to murder Americans and of the embassy bombing plot in which over 200 people were killed (eleven in Tanzania, the rest in and around the U.S. embassy in Kenya). The government sought the death penalty, but the jury was not unanimous (9-3 in favor), so he is serving life-imprisonment in a maximum security prison (the "supermax") in Florence, Colorado. He appealed and he lost. His conviction and sentence are final; his legal case is over. But, of course, when it comes to the rights of jihadists, the case is never over -- there are always lawyers determined to fight for more and judges willing to listen.

Convicted terrorists face severe restrictions on their ability to communicate with the outside world. Known as the SAMs (special administrative measures), these rules limit the number of people with whom a terrorist may communicate, restrict the number of phone calls he is allowed to make, and provide for enhanced monitoring of both phone calls and written correspondence. KKM has been complaining about them for years, arguing that they violate his First Amendment rights. Mind you, KKM is a Tanzanian national who had no connection to our country other than mass-murdering people at our embassy thousands of miles away. But once brought into our country and its legal system, he was clothed in all the majesty of the Bill of Rights. Now Colorado federal judge Marcia Krieger has ruled that his claim is substantial and should proceed to trial. 

When it counters prisoner complaints about the SAMs, the Justice Department contends that involvement in terrorist activity and the jihadist cause create an intolerable risk that the convicted terrorist would incite violence if permitted to communicate with the outside world. If the logic of this were not obvious enough, we have experienced in just the past 15 years (to take just a few of the more notorious examples): the Blind Sheikh issue from prison the fatwa Osama bin Laden credited as the necessary Islamic justification for the 9/11 attacks; the Blind Sheikh using his lawyer to communicate messages to his Egyptian terrorist organization; the 1993 World Trade Center bombers sending incendiary mail messages to jihadists in Spain; and El Sayyid Nosair inciting terrorism and helping plot the 1993 World Trade Center bombing from his prison confinement in Attica, New York. 

Moreover, as I've pointed out on other occasions, evidence of plans for and terror plots aimed at breaking imprisoned terrorists out of jail has been a staple of terrorism prosecutions for many years. Indeed, in 2000, when KKM and other al Qaeda operatives were awaiting trial in lower Manhattan, there was a deadly attempt to escape -- during which KKM's cellmate, Mamdouh Mahmud Salim, stabbed a prison guard in the eye, nearly killing him. At KKM's sentencing, in arguing for capital punishment, the government presented evidence showing that KKM had helped Salim in the plot, though KKM's lawyers (surprise!) denied the allegation.

For these and other reasons, and owing to common sense, courts generally won't entertain challenges to the SAMs. But now, the New York Times reports, Judge Krieger is listening. Appointed to the bankruptcy court by President Clinton in 1994 and raised to the district court bench by President George W. Bush in 2002, Krieger has just ruled that the government's generalized fears that convicted terrorists will engage in dangerous communications "do not address Mr. Mohamed's conduct or his particular risks." Therefore, since the government contends that KKM possesses a "longstanding commitment to jihad" and is thus likely to advocate violence," the judge says the government must prove those things before constraining the convicted terrorists free speech rights so narrowly. In essence, we are told an al Qaeda murderer who has already had a lengthy trial and appeal has still not gotten enough due process.

The Obama administration has repeatedly claimed that terrorists can be safely detained in the civilian prison system. How? By imposing SAMs. As I've previously recounted, Attorney General Holder insists that it is his power to impose SAMs that makes ordinary federal prisons sensible facilities for holding enemy combatants in wartime. Yet, his Justice Department caved when shoe bomber Richard Reid challenged the SAMs as a violation of his claimed First Amendment right to engage in communal prayer with fellow Muslims. So are the SAMs just a rhetorical device in Holder's crusade to move terrorism back to its pre-9/11 status as a law-enforcement problem, or are they something DOJ will fight for?

We'll see. It's worth remembering that the Obama/Holder Justice Department is heavily influenced by the ACLU. In fact, as the ongoing Pajamas Media series on DOJ hiring demonstrates, Holder recruits heavily from the ACLU. For years, the ACLU of Colorado has been on a campaign against the supermax prison there, arguing that its confinement conditions under the SAMs are "simply another form of torture." Now the Colorado federal court, too, seems poised to chip away at the notion that, once you're convicted of a terrorist offense, we presume you are a mortal threat to society and we will never again permit you the chance to act on your inclinations. How hard can we really expect this Justice Department to push back?

Over the Obama administration's vigorous protestations, Congress has kept  Gitmo detainees and other jihadists captured overseas out of the United States. This latest episode is more proof that lawmakers must remain steadfast. There simply can be no guarantee that the civilian justice system will do everything in its power to protect us.

Breitbart: Obama Appeared and Marched with New Black Panther Party in 2007 -- Photos Included

At Big Government, Andrew Breitbart reports that, as a presidential candidate in March 2007, then-Senator Barack Obama appeared and marched with members of the New Black Panther Party. Included in Obama's Panther entourage was Malik Zulu Shabazz, the racist group's "national chief." Shabazz was one of the Panthers charged in the voter intimidation case that the Obama/Holder Justice Department dismissed in 2009 -- even though the government had already won the case (the Panthers defaulted) and the evidence supporting the civil charges was overwhelming.

This is a shocking story, and a breathtaking indictment of the mainstream media which went out of its way to avoid vetting Obama as a candidate -- and to make sure anyone who tried to do due diligence got no sunshine. A candidate who chose to appeared in the company of, say, the KKK, would have provoked relentlessly hostile media coverage and, in short order, have been marginalized as disqualified to hold responsible elective office. As Andrew points out, one of those present with Obama was Najee Muhammed, the Panthers' "minister of war" who had called for Georgia police officers to be murdered. Yet, the press buried the Obama/Panthers connection. For example, after initially mentioning the presence of the Panthers, NPR omitted Panther references from its subsequent coverage.

Andrew also notes that visitor logs indicate that a man identified as "Malik Shabazz" visited the White House two months after attorney general Holder dismissed the Panthers case. The White House has refused to clarify whether that Malik Shabazz is the Panther national chief. Andrew further reminds us that, in March 2008, the Obama campaign website posted an endorsement of Obama by the New Black Panther Party. 

The Breitbart report displays photos of Shabazz prominently speaking at the rally, and of Obama flanked by Shabazz and a uniformed New Black Panther Party member. The report also includes details about Regnery's publication tomorrow of a book by J. Christian Adams, the DOJ lawyer whose civil rights case against the Panthers was dismissed by Obama political appointees. The book is called, Injustice: Exposing the Racial Agenda of the Obama Justice Department. Obviously -- at least it should be obvious -- Obama's keeping company with the Panthers raises legitimate questions not only about his fitness for office but his Justice Department's astonishing handling of the Panthers case.

Moderation, Saudi-Style

A woman is sentenced to be whipped ten lashes for#...#drumroll#...#driving a car. That might have made for a fairly typical week in Saudi Arabia. After all, the kingdom’s 20 million subjects and 5 million immigrant laborers are under constant surveillance by the mutaween, the Commission for Promotion of Virtue and Prevention of Vice, a police force several thousand strong that enthusiastically enforces Saudi law.

Whipping is a common punishment, so much so that our Saudi allies carefully regulate it: When the authorities impose hundreds of lashes, the sentences are carried out over weeks or months, no more than 50 strokes per session. Maybe the CIA should have consulted the enlightened sheikhs to ensure that waterboarding terrorists was as humane as whipping drivers.

#ad#In the scheme of things, you might even say that Shema Jastaina’s ten-lash sentence was pretty darn moderate. Certainly the thirtysomething driver got off easier than Khamisa Mohammed Sadawi. She is the 75-year-old Syrian who, in 2009, was sentenced to 40 lashes, as well as four months in the slammer. Busting through her door, the mutaween caught her consorting with two young men, neither related to her. The elderly woman was apparently undermining Saudi virtue by accepting a bread delivery. The painstaking Saudi investigation uncovered that 24-year-old Fahd’s presence on the scene was halal because, in his infancy, Khamisa had breast-fed him. Sure, she was about 50 at the time, but in the kingdom, blood is thicker than water, and breast milk -- well, you get the idea. Alas, Fahd’s companion, Hadian, had not had the pleasure. He was thus a stranger, his moral rectitude imperiled by the septuagenarian temptress. Forty lashes, next case.

It turns out, though, that the week of Ms. Jastaina’s conviction for driving while female was anything but typical. Only a couple of days earlier, the maestro of Saudi justice, King Abdullah, decreed that henceforth, Saudi women would enjoy the right to vote and hold public office. At least, that’s how the announcement was splashed across the West by our Islamophilic media and the kingdom’s network of well-compensated cheerleaders.

Leave it to us party poopers at National Review. On the Corner, the invaluable Nina Shea, who directs the Hudson Institute’s Center for Religious Freedom, pointed out that there is considerably less to Abdullah’s edict than meets the eye.

For one thing, the word “vote” does not appear in it. Instead, women will be allowed to “participate in the nomination of candidates” in municipal elections. It is anything but clear that this equates to a right to vote in elections. What passes for “elections” in the Saudi monarchy is a bifurcated procedure in which candidates first are nominated by amassing a required threshold of support and later compete in an election. The most sensible interpretation of the decree is that women will partake in part one but not part two.

As for holding office, women will be permitted to serve on the king’s consultative “Shura Council.” Sounds great, except the Shura Council, like the local councils whose memberships are determined by the aforementioned municipal elections, has no actual power -- which is what you might expect in an autocracy. The royal decree is window dressing.

And even as window dressing, it may not be authentic. At 88 and in failing health, Abdullah is essentially non compos mentis. Throughout his more sentient years, the king’s regard for the fairer sex was unexceptionally Islamist. Recall his 2002 visit to Pres. George W. Bush’s Crawford ranch, when Abdullah’s advance team demanded that all air-traffic controllers directing his flight and all airport personnel meeting it be men. (Naturally, the FAA lapdogs complied, and, once the story inevitably leaked out, the State Department dutifully echoed the Saudi party line that no such demand had ever been made.) Thus, as Nina relates, it is widely rumored that an opportunistic royal daughter somehow finagled the decree out of the daffy old polygamist.

#page#All the more reason to doubt the decree will ever be implemented. The next Saudi elections are four years away. Abdullah’s chances of still being around then to enforce the diktat are even more iffy than Barack Obama’s chances of remaining the president who debases his office by bowing to Saudi kings. The sensibilities of Abdullah’s putative successor, Prince Nayef, are said to be of the mutaween variety. He’s unlikely to suffer suffragettes, especially if the ladies have to drive to the polls.

#ad#The fanfare around the unprecedented non-voting voting announcement is what made the week atypical. It spotlighted the abundant precedent for whipping Islamic women -- cruelties imposed for engaging in activity so mundane no Western woman would think of it as “exercising a right.”

The regime was sufficiently mortified by the attention it received that, according to the BBC, Abdullah has revoked the whipping sentence -- not the driving ban or whipping in general, mind you, just Ms. Jastaina’s ten lashes. It is a small favor to be thankful for. Like the embarrassed retreats that sharia regimes tend to beat on those rare occasions when the world takes notice of the persecution of apostates, homosexuals, and non-Muslims, it shows how craven is the folly of averting our eyes and biting our tongues when it comes to Islamist, er, eccentricities.

More interesting, however, were the terms of the American discussion about political rights in Saudi Arabia. It was as if we were all one big, happy civilization.

Maybe, some suggested, voting rights are natural and unalienable. In the United States, of course, we hold the equality of human beings to be “self-evident.” The Declaration of Independence is explicit on the matter when it comes to “all Men.” Implicitly, we now recognize that the principle applies to all men and all women, regardless of race or creed. Thus, if voting is a foundational right for one, it must be for all.

Others countered that unalienable rights are few and sweeping: life, liberty, and the pursuit of happiness -- but not voting. The overarching principle of equality renders this distinction insignificant. Whatever their taxonomy -- natural, constitutional, statutory -- we see voting rights as universal. The notion that they could be granted or denied by a king was rightly seen as a perversion of equality’s premise that the ruler is no greater than the rest of us.

All very nice#...#and utterly beside the point. Saudi Arabia is a sharia state. In fact, it is the quintessential sharia state. Most Muslim countries tout Islam’s law as supreme, but they incorporate other legal codes in tacit acknowledgment of its deficiencies. Egypt, for instance, mixes sharia with Napoleonic civil law. In stark contrast, the Saudi monarchy boasts that its law is the law of Islam, period. Sharia needs no patches, because it is Allah’s perfect, indivisible prescription for living human life.

The vice and virtue with which the mutaween concern themselves are not reflective of universal values, nor are they meant to be. They are distinctly Islamic. Sharia is based on Islamic scripture: primarily, the Koran, the hadith, and certain biographies of Mohammed deemed authoritative for more than a millennium. It is not entirely literal and static -- there is wiggle room for jurisprudential interpretation. But neither is sharia what we’d call dynamic, at least not in the influential mainstream. The prohibition against women’s driving, for example, is based on a fatwa issued by the late Abd al-Aziz bin Abdullah bin Baz, who was made the kingdom’s grand mufti by Abdullah’s predecessor, King Fahd. And why not? As I recounted in The Grand Jihad, Sheikh bin Baz is best known for his 1966 fatwa declaring that the world is flat.

The voting edict, if we are to credit it as such, was not a case of King Abdullah’s deigning at long last to give women what the West takes to be their due. As Keeper of the Two Holy Mosques (the cities of Mecca and Medina), Abdullah is the Muslim ummah’s most revered ruler. True to that status, his concern is limited to what sharia has to say on any given matter -- and if it says something opposed to Western sensibilities, he emphatically rejects Western sensibilities. While American generals, diplomats, and media divas agitate over a Koran’s being torched by an obscure Florida pastor, the Saudi government torches Bibles every single day as a matter of official sharia-driven policy.

#page#In a Muslim society, women’s rights are understood strictly in an Islamic context. Western theories about universal precepts are irrelevant. Western civilization is not seen as a guide but as a competitor. The mission of classical Islam is to supersede Western tenets, not adapt to them.

Furthermore, in Islamist ideology, what makes the ruler viable is his fidelity to sharia. The Muslim Brotherhood’s most influential theoretician, Sayyid Qutb, put it plainly: “The ruler in Islamic law is not to be obeyed because of his own person; he is to be obeyed only by virtue of holding his position through the law of Allah and his Messenger.” In Saudi Arabia, a woman’s testimony is worth half that of a man. Ditto her inheritance rights. She may marry only one man, while the man may marry four women. The man may peremptorily divorce his wives -- and he gets custody of the kids.

#ad#These are not the king’s whims. Abdullah enforces them because they are sharia strictures derived directly from Islamic scripture. His legitimacy as monarch hinges on enforcing Allah’s rules. And these rules are fixed and knowable. Anyone can read them in Reliance of the Traveller (Umdat al-Salik), the sharia manual that has been endorsed by the scholars of al-Azhar University, with the Saudi government itself certifying the manual’s English translation.

There is no outright sharia prohibition against a woman’s being given the right to vote or to hold public office. Islamic scripture, however, plainly frowns on the concept of women ruling men. “Men are the protectors and maintainers of women,” says Sura 4:34, “because Allah has given the one more strength than the other.” In the natural order, the verse elaborates, “righteous women are devoutly obedient” towards men. Those who stray from obedience are to be disciplined, including by physical beating. Furthermore, a well-known hadith quotes Mohammed as observing, “A people that leaves its leadership to a woman will never succeed.” Consequently, Reliance explains that a caliph, the supreme leader of the Muslim community, must be a man -- women are not qualified.

So why not simply ban women from voting or standing for office? The question exposes a fundamental chasm between Islam and the West that continues to escape notice. We Americans consider ourselves a free, self-determining people. Charting our own destiny is how we define ourselves. It is a power we most openly -- even defiantly -- express by voting for officials whom we endow with immense powers to effectuate our will.

In Islam, it is simply not that important. Islamists define themselves by submission to Allah and his laws. Lawmakers are ministerial functionaries, not visionaries. The society’s destiny has already been charted: It is divinely enjoined to make Islam supreme over other systems.

The Muslim Brotherhood’s leading jurisprudent, Sheikh Yusuf Qaradawi, is held in high esteem by the House of Saud. Between fatwas approving suicide bombings in Israel and the killing of American soldiers in Iraq, he has also decreed that sharia approves of women’s participation in politics. To his gullible admirers in Western academe, that is a sign of Qaradawi’s nuance and moderation. In reality, though, his rationale is completely consistent with his endorsement of women as shahada -- jihadist martyrs. In Islam, it is never about the fulfillment of the individual; it is about what the ummah needs to overcome its enemies.

For Qaradawi, to defeat a better-equipped foe, it may be necessary for women to carry out attacks. Similarly, if women are not active in politics and education (three of the sheikh’s daughters have earned doctorates), those arenas will be left to secular women and their corrosive Western ideas. Muslim women are welcome, because they are needed in the fight.

Moreover, when it comes to political rights, the Islamist sees the stakes as very low. Qaradawi shrewdly figures that permitting a few female officeholders will impress the West without creating a danger that the women would actually be ruling men. More to the point, neither men nor women may make law for themselves. “Legislation belongs to God,” the sheikh teaches. “We only fill in the blanks.”

— 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 .

War-Power Paranoia

Zero. If you’re keeping score, that would be the number of American citizens assassinated so far by President Obama. Oddly enough, it turns out to be the same number of our countrymen killed by President Bush. It was during the latter’s administration that, according to National Review’s Kevin D. Williamson, we conservatives began falling into “dangerous error” in the indulgence of executive power. In Mr. Williamson’s telling, this wayward path has led to our “mute consent” in -- and outright “cheering” of -- President Obama’s reported authorization of the assassination of Anwar al-Awlaki, an American citizen and al-Qaeda terrorist.

But wait a second, it’s not just an authorization. In “Assassin-in-Chief” (Nov. 1, 2010), as well as in several similar treatments of this topic on NRO’s blog, the Corner, Mr. Williamson informs us that the president even has an assassination “plan” -- and not just for Awlaki. Picking up steam, he further inflates the wartime authorization of the killing of a single jihadist -- one tied to multiple terrorist plots, including the 9/11 attacks -- into an assassination list. By the time he’s done, there’s no telling how many of us the capo di tutti capi–in–chief is fixing to rub out.

#ad# To be clear, I’m a Kevin Williamson fan. That is why I am perplexed by his hyperbole, a sort of “Conservatives Gone Wild” in which I am cast in the starring role. At Exchequer, the NRO blog where he consistently delivers stellar analysis of the nation’s woebegone fisc, Mr. Williamson is admirably quick to point out that he is an English major, not an economist. Would that such pangs of humility caused him to think twice before trying his hand at constitutional law. 

To begin with, the entire premise of his essay -- the contention that the ongoing war has produced “a disturbing expansion of executive power” -- is wrong. There has not been any expansion. The Bush years actually ushered in unprecedented restrictions on the commander-in-chief’s discretion to deal as he sees fit with enemy combatants -- including Americans. 

In June 1942, the Führer dispatched teams of saboteurs to conduct a terrorist campaign on U.S. soil. One was a 22-year-old American citizen named Herbert Hans Haupt. The Nazi infiltrators were arrested by the FBI, but Pres. Franklin D. Roosevelt directed that they be detained as enemy combatants, tried by military commission, and put to death -- i.e., the executive branch acted as judge, jury, and executioner. Haupt duly met his demise, along with five others, in the District of Columbia’s electric chair about seven weeks after they were captured. Because the nation was at war with the Nazis, the fact that Haupt was an American citizen made no difference -- he was treated just as his confederates were. 

Mr. Williamson mentions neither Haupt nor the further inconvenience that a unanimous Supreme Court, in Ex Parte Quirin, declined to interfere in the commander-in-chief’s decision to have an American citizen killed. To the Supreme Court, decades before there was a Bush administration, it was immaterial even that Haupt had been apprehended inside the United States, far from any traditional battlefield, at a time when the civilian courts were open and functioning.

Looking at his pocket Constitution and apparently little else, Mr. Williamson divines a “sandy foundation” on which the president’s sparse and nebulous national-security authority stands -- just commander-in-chief of the armed forces, “that is all.” On the other hand, the World War II–era Supreme Court, steeped in centuries of Anglo-American jurisprudence, grasped two rudimentary points that elude Mr. Williamson.

First, that same Constitution assigns exactly no national-security authority to the federal judiciary -- the branch of government Mr. Williamson would put in charge of American enemy combatants. As the Court explained in the 1948 Chicago & Southern Air Lines case, “the Judiciary has neither aptitude, facilities nor responsibility” for national-security decisions. In our system, these matters are instead the province of officials “directly responsible to the people whose welfare they advance or imperil.” They are political in nature, not legal. Thus, in the 1950 Eisentrager case, the Court turned away enemy combatants seeking its intervention during post-war occupation. To grant them judicial review or civilian trials would, the justices said, “hamper the war effort and bring aid and comfort to the enemy.” “It would be difficult,” they elaborated, “to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home.”

#page# Second, “commander-in-chief” is not the sum total of the Constitution’s presidential endowment. The president is also made sole repository of government’s “executive power.” This, as no less a states’-rights partisan than Thomas Jefferson acknowledged, was a conferral of plenary power over foreign affairs. Moreover, “commander-in-chief” is not, as Mr. Williamson suggests, an honorific that implies only “titular” power. The Supreme Court construed it in 1850 to empower the president to “employ [the armed forces] in the manner he may deem most effectual to harass and conquer and subdue the enemy.” During the Civil War, it held that even in the absence of congressional authorization, the commander-in-chief was not merely authorized but obliged to repel attacks against the U.S. by any necessary force.

The president’s national-security powers are intended to be daunting. The lack of an executive capable of swiftly and decisively protecting the nation from foreign attack was a principal failing of the Articles of Confederation, and thus a catalyst for adopting a constitution that created a powerful president. Still, presidential authority is not without severe limits. I don’t disagree with Mr. Williamson on that proposition. Consequently, to carry his case along, he must caricature the arguments of national-security conservatives -- while risibly asserting, “I do not wish to exaggerate Mr. McCarthy’s position.”

#ad# Mr. Williamson reports, for example, that I believe the president is not required to comply with congressional statutes. That’s silly. The president must comply with all statutes that do not infringe on his inherent Article II powers -- and most don’t. But notwithstanding Mr. Williamson’s exaltation of statutes as “the law” -- as in all of it -- they are only a species of law. Of course, as they reflect the will of the people expressed through their representatives, statutes are an especially significant component of our law. But just like judicial rulings, treaties, and administrative regulations, they are subordinate to the Constitution. That is why I describe them as “mere” -- to Mr. Williamson’s bemusement -- only when comparing them with the superior provisions of the Constitution.

The subordinate status of statutes is why the Supreme Court has been invalidating them for over two centuries when they run afoul of constitutional limits. And like the judiciary, presidents decline to enforce statutes they believe to be invalid. President Bush did not invent this practice. It has been going on for as long as constitutional governance. It is what the Framers intended. They were worried, as Hamilton put it in Federalist 73, about “the propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments.” 

So yes, I did contend, as Mr. Williamson points out, that President Bush’s Terrorist Surveillance Program -- a wartime effort to intercept cross-border enemy communications -- did not go beyond the executive branch’s lawful powers, even though it violated Congress’s 1978 Foreign Intelligence Surveillance Act (FISA). Unmentioned by Mr. Williamson is that my argument tracks the holding of the specialized appeals court Congress created to rule on surveillance issues: “We take for granted that the President does have that authority [to conduct warrantless surveillance for foreign intelligence purposes] and, assuming that is so, FISA could not encroach on the President’s constitutional power.” 

National-security conservatives do not contend that Congress is powerless to conduct oversight of the executive-branch agencies it has created, or that those agencies may ignore its subpoenas. In claiming otherwise, Mr. Williamson seems not to perceive the difference between executive agencies (which routinely provide voluminous documents and testimony in response to congressional demands) and the White House staff (i.e., the president’s personal advisers). It is the latter that Congress must refrain from subpoenaing -- just as it should not subpoena the president himself, or a federal judge, or that judge’s clerks. That’s Separation of Powers 101.

Mr. Williamson talks about Congress’s war power, but he doesn’t appear to understand it. It is the power to “declare” war -- which the Framers settled on after rejecting language that would have empowered Congress to “make” war, and does not prevent the president from committing troops or conducting hostilities as he sees fit. And he completely ignores Congress’s control of the purse, which the Framers saw as its primary check on presidential authority. In point of fact, if it chose to do so, Congress could today defund combat operations, including any concomitant authority in the executive to order assassinations of enemy combatants. That would stop such assassinations (if they had actually started). Mr. Williamson also grossly underestimates another congressional check, impeachment. In his imagining, the Congress that impeached a popular president for obstructing an investigation into his sexual improprieties would somehow stay its hand against a president who was using war as a pretext to murder American citizens.

#page# It would be hard to overstate how divorced this is from reality. Though a stickler for statutory law, Mr. Williamson seems not to notice that the War on Terror -- which he belittles as “metaphorical” -- is a real war in the statutory sense. Combat operations ensued only because Congress passed a sweeping authorization for the president to use military force against al-Qaeda, its operatives, and its affiliates. Legislative appropriations have reaffirmed the Authorization for Use of Military Force (AUMF) for nine years. Congress is free to repeal the AUMF -- it would probably have to override a presidential veto to do so, but if Mr. Williamson’s assassination-list nightmare were a reality, the numbers for that would be there. Were Congress to repeal the AUMF, the president would have no authorization to kill anyone -- American or otherwise -- unless it were done in response to an attack or imminent threat against the United States (or, perhaps, in a covert operation against a dire foreign threat, carried out as prescribed in the relevant statute).

Could a president abuse his powers? Of course. All power can be abused -- including legislative and judicial power. But the basic check against that possibility is political, not legal. Mr. Williamson implausibly argues that “political limits” are inadequate against the president and must be supplemented by “legal limits.” Courts, however, have no power to enforce their injunctions -- for that, they must rely on the executive branch, and an executive branch that maintains a list of citizens it plans to assassinate will be unlikely to enforce injunctions against itself. By contrast, a president who really did the horrific things Mr. Williamson imagines President Obama doing would find his war authorization rescinded, his military and intelligence services defunded, and himself impeached. A president guilty of less heinous excesses might not be impeached, but he would find his popular support dramatically eroded. As Mr. Obama is finding, that has political consequences -- among them electoral ones -- that curtail the presidential capacity for malfeasance. This is the genius of the system.

#ad# Ironically, the sort of improvident legal limits Mr. Williamson urges are likely responsible for the assassination authorization he condemns. To understand why, consider Anwar al-Awlaki. Mr. Williamson limns him as a mere “preacher” and “author of invective.” Yet, to the intelligence community, which just might have better information, he is an al-Qaeda recruiter who, while in the U.S., encouraged 9/11 hijackers and Fort Hood terrorist Nidal Hasan; and who, once holed up in al-Qaeda’s safe haven in Yemen, went “operational” and guided Umar Farouk Abdulmutallab’s attempted Christmas Day bombing of a plane over Detroit.

That is more than enough to consider him an enemy combatant. Yet, hamstrung by federal courts and international tribunals, our overlawyered military and intelligence services are paralyzed by any perception of potential legal liability. Given that Awlaki is an American citizen, they doubtless fear taking action against him without the cover of a presidential authorization. And given the political heat President Clinton took for failing to give the CIA clear orders to assassinate bin Laden when the agency had opportunities to do so, it was plainly in President Obama’s interest to provide a clear authorization in Awlaki’s case. Otherwise, after the next 9/11, he could find himself in the Clinton hot seat, unable to explain why the military shrank from firing a cruise missile at a high-level al-Qaeda confab just because Awlaki happened to be in the room.

That’s all the assassination authorization for Awlaki is: legal cover if circumstances arise under which killing him is the best military option. And here we arrive at the central absurdity in Mr. Williamson’s argument. Though minimizing him, Mr. Williamson concedes Awlaki is a bad actor and has no objection to his being killed on the battlefield. Since Mr. Williamson doesn’t see that as problematic, he can’t fathom why our armed forces would want insurance -- though it is they, not he, who would be hauled into court by Awlaki’s family. But the authorization to assassinate Awlaki does not mean the administration would have him killed if it encountered him coming off a plane in Chicago, à la José Padilla -- a U.S. citizen captured, not killed, by the Bush administration. Nor does it mean our forces would kill Awlaki if they could apprehend him in a foreign country under circumstances in which detention was the more practical option, à la U.S. citizen Yaser Hamdi and al-Qaeda bigwig Khalid Sheikh Mohammed. 

At the Corner, Mr. Williamson expressed astonishment that, as a severe Obama critic, I would give the administration the benefit of the doubt on this one. But I am an Obama critic only where the evidence warrants it. As Mr. Williamson observed, I accused the administration of a “grave violation of law” in civil-rights enforcement -- but Justice Department lawyers have testified that Obama officials have imposed racially discriminatory charging practices. As Mr. Williamson noted, I’ve argued that the Obama administration shares much of the Islamist critique of the United States and has staffed the Justice Department with terrorist sympathizers -- but there is a mountain of evidence to that effect. If Mr. Williamson has evidence for what he alleges -- that President Obama has a list of Americans to be assassinated and is planning to carry out those killings -- I’m all ears. But there is no evidence in his essay. Where I come from, a comparable lack of evidence gets your case laughed out of court.

There is no runaway executive branch, nor an “assassin-in-chief” drawing up hit lists of citizens. Usually, one encounters such hallucinatory analyses from feverish lefties or libertarian extremists, who hear in the most commonsense security measures a death knell for the Bill of Rights. In the real world, we have the most tightly regulated chief executive in our history -- searchingly overseen by Congress and micromanaged by the courts in a manner that would have shocked the World War II–era judiciary, to say nothing of the Framers. Mr. Williamson should relax. The president has been successfully shackled.

--- 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 .

What Williamson Gets Wrong on Awlaki

Kevin would have a stronger case if Awlaki had been killed in the U.S. But he was in Yemen -- as an avowed member of al-Qaeda, a foreign enemy our nation is at war with under Congress's authorization of military force. There already is precedent for conducting military operations against Americans under those circumstances, most recently the Supremes'  2004 Hamdi ruling.

The precedent that would be radical is the one Kevin seems to be arguing for, namely, that American citizens carry the protections of the Constitution wherever in the world they go, and however hostile their stance toward the U.S., even in wartime. How far do we take that precedent? Would we have needed an arrest warrant to capture Awlaki? A search warrant to raid his hideout in Yemen? Would he need to be brought to the nearest available magistrate, assigned counsel, and advised of the charges against him? Does he get Miranda warnings? Does it matter the the writ of American courts and the authority of American law-enforcement agents do not apply in Yemen? Does it matter that Congress has authorized military operations and, therefore, that the laws of war apply?

I think you can see Awlaki as an enemy combatant or as a criminal defendant, but you have to follow through with the logic and consequences of either choice. In my mind, he's an enemy combatant. I'd have defended the use of force against him if it had happened in New York -- though I'd have to be prepared to answer the same sort of tough questions I think Kevin has to answer regarding Yemen. But I don't think the killing of Awlaki in Yemen is a tough call. He was one of the enemy's most effective operatives, and I salute our guys for getting him before he got more of us.