Andrew C. McCarthy's Blog, page 54

Re: Weiner's jokes about Twitter "prank"

Andrew, I'm curious about the Congressman's claim that "ordinary citizens" can't take their cases to the FBI. To the contrary, the FBI, the Justice Department, and several other federal agencies take computer crime very seriously. They would take it especially seriously if the target of the "prank" were a United States congressman. After all, if, as Rep. Weiner claims, someone is targeting him and invading his internet communications, we have no way of knowing whether the only file involved is this one lewd photo, or whether the only account involved is this one Twitter account. As a member of Congress, Mr. Weiner has access to all sorts of sensitive information -- I do not know if he has a security clearance for access to classified information, but I would not be surprised if he does since, without one, he probably could not participate in some closed sessions (and therefore could not represent his constituents on some significant issues).

There are various federal statutes (e.g., Sections 1029 and 1030 of the federal penal code -- Title 18) that deal with hacking and other forms of computer fraud (including what they call "access device" fraud). They are serious felonies and can call for imprisonment for over ten years.

Moreover, it is rare that a hacker has only one victim. A public-spirited victim -- you know, like a dedicated public servant who wouldn't want to see a computer felon victimize the people he has gone to Washington to represent -- would obviously want to report the crime and help the FBI track down the hacker. If it turns out that it was really just a prank and not worth prosecuting, the FBI and the Justice Department can figure that out a lot faster than Rep. Weiner can, even with help from the crack "internet security firm" he says he has retained. So can state and district attorneys, assisted by the police, since states also have computer crime laws and take hacking quite seriously.

Of course, the FBI or other law-enforcement types might ask him impertinent questions -- like whether he has taken lewd pictures of himself, whether he took the lewd photo in question, and whether he sent it to the co-ed. And unlike the media, they probably would not be satisfied at being told he doesn't want to be "distracted" by these sorts of inquiries. 

Anyway, as a former federal prosecutor who was involved in numerous computer crime cases based on citizen complaints, I'm happy to try to be of some help to the Congressman during this trying time. Ordinary citizens not only can report computer crimes to the Justice Department, they are encouraged to do so. DOJ has even set up a website for its "Computer Crime & Intellectual Property Section," at the top of which it says: 'Reporting Computer, Internet-Related, or Intellectual Property Crime: Internet-related crime, like any other crime, should be reported to appropriate law enforcement investigative authorities at the local, state, federal, or international levels, depending on the scope of the crime." In fact, you don't even have to be the victim. DOJ is so interested in computer crime, it encourages citizens to report such offenses if they are merely "aware" of them -- again, because a hacker rarely victimizes only one person or confines his theft/fraud to one photo. Indeed, members of Congress, such as Rep. Weiner, give the Justice Department multi-billion dollar annual budgets, and gives the FBI additional billions, precisely so that they can do just these sorts of investigations.

Congressman Weiner is no doubt a strong supporter of Attorney General Holder's aggressive efforts to root out computer crime. He could perform a valuable public service by doing what the government he is part of encourages all citizens to do: Report this outrage to the authorities!

Outbreak of Sanity: House Postpones Libya Vote

The Associated Press reports that the House leadership has postponed a vote on a resolution demanding an end to U.S. involvement in Libya amid fears that it would pass.

Sadly, the measure had to be sponsored by one of the most leftwing members of Congress, Rep. Dennis Kucinich. The House's GOP leadership is basically doing what I complain about in my column today: carping about the President's incoherent policy from the sidelines, grousing about the fact that the President is violating the constitutionally dubious War Powers Act (largely beside the point: the problem is the mission, not the fact that the mission is taking longer than 60 days), but nevertheless trying to round up support for Obama ... notwithstanding that the House has already voted 416-5 to deny funding for any ground troops or U.S. contractors in Libya -- a vote that would be inconceivable if there were any vital American interest at stake. That is, the leadership is fraidy-scared to take a clear, accountable position. Still, it appears a confederation of antiwar Leftists and conservatives who adhere to the quaint notion described in Mark Steyn's recent NR cover article (viz., we should go to war when our vital interests are at stake, and then fight to win) could combine to pass Kucinich's resolution anyway.

Hilariously, Obamabot Gary Ackerman (D-NY) argues that, in connection with this Democrat-sponsored measure, Republicans "are making a choice between Moammar Qaddafi and Barack Obama." Just imagine what he and his party would have said if Democrats had been accused of siding with al Qaeda or Saddam Hussein over George Bush. Speaking of which, we know that the "rebels" include al-Qaeda operatives and that the Muslim Brotherhood's favorite cleric, Sheikh Yusuf Qaradawi, has issued a fatwa calling for Qaddafi's murder (Qaradawi, who might know just a bit more about Libya than Ackerman, is betting that Qaddafi would be replaced by an Islamist regime hostile to the West and Israel). Should we say that Rep. Ackerman is making a choice between Qaddafi and al-Qaeda/Muslim Brotherhood? Or would that be bad because, y'know, we'd be questioning his patriotism?

Yes, We Can Enforce . . . As Long As Uncle Says It's Okay

I like Rich's column this morning on the Supreme Court's E-Verify decision, which upheld an Arizona law targeting employers of illegal aliens. I only wish I could be as optimistic as the boss is.

As I argued in my weekend column, the Supremes did not so much endorse Arizona's regulation as rule that the federal government is preeminent in the field of immigration enforcement. Arizona's law was upheld only because Congress explicitly permitted the states to use their power to license businesses as an enforcement tool. As for the requirement that Arizona employers use E-Verify, it was upheld only because (a) Congress did not forbid states from imposing this requirement and (b) the executive branch (i.e., the Bush administration) had deigned to opine that Arizona's E-Verify mandate was "permissible."

This framework turns logic and constitutional law on their head. As I contend in the column, immigration enforcement is an inherent power of the states. It is federal power that is suspect -- historically, constitutionally, and practically. The premise that a state must have the blessing of the national government to take rudimentary defensive measures against trespassers in its territory creates a much more perilous situation than we seem to realize. It means the states no longer have basic police power. If you don't have the sovereign's natural right of self-defense, you are no longer sovereign. If the states are no longer sovereign, then the foundational understanding of the compact creating our federal republic no longer obtains. 

If I were the Alinsky Obama administration, here's what I would do, today: Propose an aggressive, comprehensive scheme of federal immigration enforcement, closing all the loopholes in prior legislation which states use to justify their own enforcement measures (such as the Arizona statute the Court upheld last week). I would even say the proposal was inspired by the Supreme Court's inspiring Whiting decision, and I'd quote Chief Justice Roberts's reaffirmation (in the majority opinion) of the broad distortion that "the power to regulate immigration is unquestionably a federal power." In the proposal, I would cover every aspect of immigration enforcement and make explicit that the states must stay their hand in order not to disrupt the preeminent federal government's carefully crafted enforcement framework. Hell, I'd even promise to build a triple fence, complete with Obama's moats and alligators, from San Diego to Miami.

The press would eat it up, proclaiming it as Obama's unflinching commitment to the enforcement component of a humane immigration policy. Led by Senators McCain and Graham, governors like Christie, and sundry former Bush officials, the GOP's "comprehensive immigration reform" crowd would breathlessly jump on board. State politicians would praise the plan because the dirty little secret is that they like being able to blame the feds for the immigration mess -- it's handy to be able to say your hands are tied (notice that Arizona puts up no meaningful resistance in court to the premise that immigration enforcement is primarily the feds' job). And while the folks at La Raza and MALDEF would squawk a bit for the cameras, they wouldn't fight because they'd know exactly what Obama was doing.

Then, once the muscular, comprehensive enforcement framework was in place, and I'd taken my campaign swing/victory lap, I would do ... nothing -- no enforcement, nada. I would now have Congress and the federal courts telling the states to butt out, controlling illegal immigration is a plenary executive branch responsibility; I'd have current and former high-ranking DOJ officials explaining to the media that the law gives the executive branch unfettered prosecutorial discretion regarding what laws to enforce or not enforce; and, if pressed on the matter (yeah, right), I'd point to the comprehensive enforcement legislation I'd proudly signed as irrefutable proof of my commitment to vigorous enforcement. 

And with that all settled, it would be high time to bring people out of the shadows. After all, we are a nation of immigrants and there is no such thing as an illegal person ... and there's still plenty of time to register to vote -- early and often!

Re: 'Arab Spring': Misnomer

Unlike my friend Daniel Pipes, I like the term "Arab Spring" ... for comic relief in an otherwise Ill Season. But for the sake of accuracy, I prefer the Islamist Ascendancy -- or, maybe better, the Democracy Delusion (a term I now realize I must have plagiarized from Stanley).

Re: "Arab Spring": Misnomer

Unlike my friend Daniel Pipes, I like the term "Arab Spring" ... for comic relief in an otherwise Ill Season. But for the sake of accuracy, I prefer the Islamist Ascendancy -- or, maybe better, the Democracy Delusion (a term I now realize I must have plagiarized from Stanley).

Congress Has War Powers, Too

Which is worse: bad leadership or no leadership? That’s a question for a Congress that remains AWOL while young Americans continue to be placed in harm’s way in military missions increasingly divorced from American national interests. Like developments in Afghanistan and Iraq that cry out for a public examination of what U.S. forces are doing overseas, President Obama’s incoherent war in Libya brings increasing urgency to the question.

To recap, the president unilaterally ordered air strikes in Libya despite the fact that Moammar Qaddafi’s regime had neither attacked nor threatened the United States and that the regime was considered a valuable American ally in the war on terror by the Obama administration, just as it had been by the Bush administration. Indeed, the Bush State Department had opened the foreign-aid spigot to Qaddafi, and settled past terrorism claims against him, after the dictator forswore the pursuit of nuclear weapons and shared intelligence on al-Qaeda supporters in his country. Those supporters largely hail from eastern Libya, which -- surprise! -- is now the stronghold of an opposition affectionately called “the rebels” by pro-interventionists. That opposition is better understood as the Libyan mujahideen -- Libya having sent more jihadists to fight against American forces in Iraq than any other country proportional to its population.

#ad#If you’re not dizzy enough yet, President Obama started out even more enthusiastic about Qaddafi (an Obama admirer) than was his predecessor. Foreign aid, including military aid to the brutal regime, was increased. Moreover, when violent unrest broke out, Obama gave Qaddafi the same kid-gloves treatment he extended to anti-American dictators repressing their opponents in Iran and Syria.

Soon, though, Obama convinced himself that Qaddafi was about to fall. This misimpression was compounded by European pressure (driven by the continent’s dependency on Libyan oil reserves) and by what Victor Davis Hanson sagely diagnosed as a desire to avoid being seen as once again trailing rather than leading events, as in the case of Egypt. All this together induced a lethal flip-turn, and the president announced that it was time for Qaddafi to go.

Yet, Obama’s unprovoked military offensive, in conjunction with NATO, is ostensibly divorced from this stated American goal. We began attacking Qaddafi’s forces and his compound while disavowing any intention to oust him. We are there only to protect civilians, administration officials maintain. Meanwhile, attacks against Qaddafi intensify, “rebel” atrocities against black Africans are ignored, and intervention hawks like Sen. John McCain (until recently a supporter of the U.S. embrace of Qaddafi) advocate that the rebels be armed and trained, notwithstanding their known terrorism ties.

Obama did not seek congressional authorization to commence combat operations in Libya. In compliance with the 1973 War Powers Act (WPA), however, he notified Congress about his commitment of U.S. forces. This triggered the 60-day time limit within which the WPA instructs a president to either obtain congressional approval or withdraw U.S. forces. That deadline came and went on May 21 with no congressional authorization and no movement to wind down the mission -- even though, when he began bombing, Obama had assured Americans that the mission would last “days, not weeks.”

#page#The WPA is probably unconstitutional. It was enacted over the veto of an embattled Pres. Richard Nixon, and, ever since, presidents of both parties have regarded it as non-binding, though they have substantially complied with its terms to avoid a constitutional showdown. I could exhaust you with a couple of thousand words on the relative merits of the arguments pro and con, but that would be pointless, for two reasons. First, WPA disputes between the political branches are not justiciable. The federal courts are not going to intervene, certainly not with a left-wing Democrat in the White House. Such controversies were meant by the Framers to be worked out politically, not by resort to the courts.

Which gets us to the second and more important point: The WPA is craven. It is designed to allow Congress to carp from the sidelines or stay silent without being accountable. Presidents are implicitly encouraged to initiate hostilities, and the issue becomes whether they comply with the WPA’s arbitrary deadlines. Of course, in the absence of an attack (or at least the threat of an attack) on the United States, presidents should never take the nation to war without the approval of the people’s representatives; the salient issue in debates over the use of force is whether war is necessary to advance some vital American interest. If the stakes involve something important enough to go to war over, fidgeting over 60-day time frames is frivolous.

#ad#The WPA is sideshow. The Framers vested Congress with not only the power to declare war but also with the power of the purse. Federal legislators don’t need to wait 60 days. They can vote at any time to deny public funds to a presidentially initiated war, and they can deny the aggression political legitimacy by voting against the use of force. But such congressional action requires leadership rather than gamesmanship. With rare exceptions, today’s lawmakers would rather lie low in the tall grass.

Our young men and women deserve much better. In the absence of congressional debate over the Libyan intervention, the administration has not been compelled to clarify American goals. If the true objective is protecting civilians, how does doing so in Libya advance American interests? Are there limiting principles, or is our financially strapped nation now obliged to be the world’s policeman and, ultimately, the world’s nation-builder? Why Libya but not Iran, Syria, Yemen, Tunisia, Bahrain, Sudan, etc.? And if, as Stanley Kurtz persuasively argues, the Obama administration is stealthily sowing a novel “responsibility to protect” doctrine into international law, what are its ramifications? Why wouldn’t it, for example, justify other uninvolved nations to impose their policy preferences on American allies (such as Israel) under the cover of protecting “oppressed civilians” (such as the Palestinians)?

The road to jihadist terror is paved from here to Afghanistan, Gaza, and Kosovo with good intentions toward besieged Muslim “rebels” who invariably turn out to be virulently anti-Western and allied with Islamic militants. How do we know Libya is not a rerun of that costly error?

With a few honorable exceptions, Congress is sitting on its hands rather than pressing for answers. Meanwhile, President Obama takes the imperial presidency to warmaking heights George W. Bush would have been flayed for even contemplating, much less trying. The antiwar Left has gone mute -- proving yet again that its main objection is not to war but to commanders-in-chief whose names are followed by the designation “R.” The Republican leadership is feckless -- making very little noise, and doing even less.

As we learned in the Bush years, lawmakers love to yap about Congress’s constitutional war power. That power, however, is a duty not a debating point. It’s a duty on which the current Congress is derelict.

—  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.

Talk Radio Ratings Scandal?

At TAS, Jeff Lord refutes claims by the "No Labels" crowd that Rush Limbaugh, Sean Hannity, and Mark Levin are losing listeners -- in fact, their listenership is growing by leaps and bounds thanks to their foresight in staying ahead of the communications technology curve. What's disturbing, though, is the likelihood that misleading reports of conservative talk-radio's declining ratings could be the direct result of political squeezing of the private ratings system by congressional Democrats. Jeff explains, here.

Did President Obama really sign the Patriot Act reauthorization?

Yeah, he did ... from France ... by autopen!

Winning the Case, Losing the Principle

Don’t hold your breath waiting for the most politicized Justice Department in American history to drop its imperious lawsuit against the people of Arizona -- those impertinent subjects who dare to demand enforcement of the immigration laws Pres. Barack Obama deems null and void.

It is true that this week, in upholding Arizona’s sanctions against employers who hire illegal aliens, the Supreme Court implicitly undermined the preemption-by-executive-fiat theory underlying the administration’s suit. By a 5–3 majority (with Justice Elena Kagan, Obama’s former solicitor general, having recused herself), the Court held that a state is not barred from enacting laws that are consistent with federal statutes and bolster congressional purposes. That is to say, the touchstone of preemption remains law, which is what Congress prescribes, not policy, which is a president’s political calculation about what laws to enforce or not enforce.

#ad#That ought to spell doom for DOJ’s civil-rights case against Arizonans, who are doubly afflicted by a federal government that taxes them to support agencies that first refuse to protect them and then haul them into court for trying to protect themselves. The state’s controversial immigration-enforcement law (known as “Senate Bill 1070”) actually strengthens federal laws that bar aliens from entering and remaining in the United States illegally. Given the justices’ apparent enthusiasm for state statutes that support and bolster federal statutes, one might think Attorney General Eric Holder would read the writing on the wall and call off his minions.

He won’t. Obama’s tyrannical preemption theory is damaged by Thursday’s ruling in Chamber of Commerce v. Whiting, but it is not destroyed. Nor is that the lone cause for disappointment -- far from it. While the Court’s bloc of progressive activists lost this skirmish, they’re winning the federalism war in a rout. Whiting leaves in tatters the concept of state sovereignty, federalism’s bedrock.

For that, Arizona can place much of the blame on itself. Chief Justice John Roberts’s majority decision boldly asserts that the “power to regulate immigration is unquestionably a federal power.” Arizona has mounted no meaningful resistance to this proposition, neither in Whiting nor in the ongoing litigation over the more hotly disputed Senate Bill 1070. Thus, it is perhaps to be expected that this is the one point on which all nine of the Court’s justices seem to be in agreement.

Chief Justice Roberts's assertion is untrue, at least insofar as it implies federal supremacy over the question of immigration. As I’ve previously contended, there is nothing in the Constitution that vests the federal government with the power to police illegal immigration within the territory of a state. To the contrary, the Constitution empowers Congress merely “to establish an uniform Rule of Naturalization,” i.e., to prescribe the qualifications for American citizenship. It says nothing about how those standards are to be enforced. In adopting the Constitution, the states did not delegate to the national government their inherent authority to police their territory, to defend their citizens, and to detain persons who have no lawful right to be on their soil.

In the debates over the adoption of the Constitution, such leading proponents as Hamilton and Madison assured the wary states that they would retain control over the administration of justice within their territories. The federal government’s concerns would be limited to such “external objects” as “foreign commerce.” The states would continue to focus on those “internal objects” that “concern the lives, liberties, and property of the people,” including the “internal order of the state.”

#page#Thus the question was not whether the states were “preempted” from regulating or prohibiting the activities of non-citizens within their territory. It was whether the national government had any power over immigration enforcement. The “unquestionable” power was state power. That is why, in its 1837 New York v. Miln decision, the Supreme Court upheld a state law that allowed New York City to expel arriving aliens it deemed likely to become a public burden. As Justice Philip Barbour explained, the state had acted

to prevent her citizens from being oppressed by the support of multitudes of poor persons who come from foreign countries without possessing the means of supporting themselves. There can be no mode in which the power to regulate internal police could be more appropriately exercised. New York, from her particular situation, is perhaps more than any other city in the Union exposed to the evil of thousands of foreign emigrants arriving there, and the consequent danger of her citizens being subjected to a heavy charge in the maintenance of those who are poor. It is the duty of the state to protect its citizens from this evil; they have endeavored to do so by passing, amongst other things, the section of the law in question. We should, upon principle, say that it had a right to do so.

#ad#The oppression then faced by New Yorkers pales in comparison to what is happening in modern Arizona, where -- in addition to heavy charges for the subsistence, education, and medical needs of an exploding illegal alien population -- citizens are besieged by the militias and drug gangs of a disintegrating Mexico. Yet, from its original posture of great difficulty identifying a source of federal authority over immigration enforcement, the Supreme Court suddenly decided, with the dawn of the Progressive era, that the national government had somehow become preeminent in the field.

That is the tack taken by Chief Justice Roberts, joined in the Whiting majority by Justices Scalia, Kennedy, Alito, and, with some apparent but unexplained reservations, by Justice Thomas (who concurred in the judgment but joined in only parts of Roberts’s opinion). Arizona’s law enabling the state government to revoke the licenses of businesses that knowingly hire illegals was upheld, but only because Congress had expressly permitted the states to enact such regulations. Arizona’s requirement that all state employers use the federal E-Verify system to ensure that applicants are entitled to work was likewise upheld, but only because Congress had not barred the states from imposing such a requirement, and because the executive branch (during the Bush administration) had characterized Arizona’s E-Verify mandate as “permissible.”

Plainly, the Court’s unanimous position is that the federal government, in its unfettered discretion, may prevent the states from conducting any immigration enforcement, no matter how threatened the states may be by illegal immigration and no matter how resolutely the president refuses to address such threats. The justices divide only over whether the federal government has already prohibited state action; the dissenters (Justices Breyer, Ginsburg, and Sotomayor) contend that it has, implicitly if not explicitly. There is no reason to think Justice Kagan would not have voted with them.

This leaves the states at the mercy of Big Brother for their internal defense, and that is a huge problem. The right of self-defense is a core aspect of sovereignty. If the states no longer have it, they are no longer sovereign, meaning the foundational assumption of our constitutional system no longer obtains.

On the right, commentators are gliding past this looming catastrophe and focusing on the good done by the ruling. To be sure, the validation of a state’s ability to shut down the employment magnet is essential if illegal immigration is to be reduced from a crisis to a nuisance. But this judicial validation is based on the whim of Congress rather than the inherent power of sovereign states. That is not very reassuring: If the years 2007 through 2010 taught us anything, it is that a Congress in the grip of ideology can and will govern against the will of the majority.

#page#And it may not just be a Congress in the grip of ideology that we need concern ourselves about. Yes, much of the Whiting majority opinion appears to dismantle the Obama administration’s theory that state power can be preempted by presidential diktat. Chief Justice Roberts repeatedly emphasizes that Arizona’s alien-employment statute “trace[s]” the analogous federal statutes.” He reasons that the question of whether states are preempted from regulating is controlled by the language Congress enacts into federal law. And he pointedly rejects the argument frequently urged by centralizers that immigration must have a one-size-fits-all enforcement scheme imposed by Washington. “The prospect of some departure from homogeneity,” Roberts explains, is a feature of “our federal system.”

#ad#Were the federal courts to hew to this Supreme Court guidance, the Obama administration would have to lose its lawsuit against Arizona. Furthermore, as an ethical matter, the Justice Department should abandon any case in which the law dictates that it should lose, even a case that excites the political base the president badly needs to excite if he is to win reelection. A Justice Department that abandoned a sure winner like the Black Panthers voter-intimidation case should, after Whiting, drop its Arizona case forthwith.

Don’t hold your breath. Obama’s loyalists and the open-borders crowd will observe that Whiting did not present a preemption claim rooted in presidential policy rather than statutory law. That this actually makes Obama’s case against Arizona’s Senate Bill 1070 weaker won’t matter; it is a distinction Holder’s Justice Department can point to as a reason for pressing ahead.

Moreover, in one brief section of the Whiting opinion, the chief justice takes pains to distinguish Arizona’s alien-employment law from state laws the Court has occasionally invalidated because they contravened presidential policy in the field of foreign affairs. For a non-political Justice Department in an era more faithful to the federalist underpinnings of our Constitution, those cases would not save the Arizona lawsuit. After all, the conduct of foreign relations is a core power of the presidency -- states should not interfere with it, because it is the principal “external object” the federal government was created to manage.

By contrast, immigration enforcement is a traditional responsibility of the states, an “internal object” and an incident of sovereignty. Or at least it used to be.

—  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.

Annals of the Arab Spring: Egyptians to Reopen Gaza Border Crossing

Democracy has not even placed the Muslim Brotherhood in power yet, but the organization is powerfully influencing events. Over Israeli objections, Egypt's military government has announced that it will reopen the Rafah crossing -- the country's border with Hamas-controlled Gaza. (H/T The Snow Report.] The move will enable Hamas to defeat Israel's blockade. Gaza's other land crossings border Israel, which also patrols Gaza's Mediterranean coast, but without Egypt's cooperation, Israel cannot stop major arms shipments and jihadists from getting through to Hamas (the Palestinian branch of the Brotherhood).  

As someone once said, it is very foolish to believe the Egyptian military can be relied on to keep the peace with Israel against the wishes of the Brotherhood and Egypt's heavily fundamentalist Muslim population. Oh, and did I mention that Saif a-Adel, the new head of al-Qaeda, used to be a special forces officer in the Egyptian army?