Andrew C. McCarthy's Blog, page 66

Loughner Indictment: Legally Suspect and Tactically Foolish

Author: 
Andrew C. McCarthy

Dan, I think the Justice Department's strategy in the Loughner case is legally suspect (to say the least) and tactically foolish. There are federal charges that apply to the shootings of the federal officials. That's the federal case here. To the contrary, shooting people who are not federal officials in a mall is not a federal offense -- such shootings are state crimes, for which Arizona provides very severe sentences, including death if death has resulted.

Justice is hanging its jurisdictional hat on the "federally protected activity" aspect of the civil rights laws. The purpose of this provision is to give the feds a vehicle to go after people who purposely try to stop someone from enjoying the benefits of a federal program. So if some misguided soul tried to vent his disagreement with, say, the "cash for clunkers" program by standing outside the car dealership and intimidating would be participants, he would be interfering with a federally protected activity even though this sort of menacing, ordinarily, would be a state offense, not a federal offense. The idea is to protect obvious federal interests. The idea is not to create federal cases whenever the commission of a state crime has some incidental, attenuated federal consequence.

We know this not only because the relevant statute (section 245 of the federal penal code) homes in on clear federal interests -- speaking of interference with a federal "benefit, service, privilege, facility, or activity" (meaning that "activity" must be understood not as any old activity but in the vein or benefit, service, etc.). We also know it because the statute has a high scienter requirement -- calling for the government to prove beyond a reasonable doubt that the defendant willfully interfered with his victim because the victim was trying to enjoy some federal benefit, service, privilege, facility, activity, etc.

While it is a truism that "ignorance of the law is no excuse," that becomes nearly untrue when Congress prescribes a mental element of willfulness. The government then has to prove that the defendant acted maliciously -- fully aware that he was violating the law in question. I don't mean fully aware that he was shooting people -- as I said, there are narrow laws dealing with that. I mean fully aware that he was shooting people for the specific purpose of interfering with their enjoyment of the federal activity of meeting with a member of Congress.

That's a stretch. If DOJ's theory is sound, the question becomes: is there any activity that cannot be spun as federally protected -- especially given Leviathan's ever expanding girth? If I am out enjoying a beautiful day when I get robbed, can it be said that my assailant intended to frustrate my enjoyment of the Clean Air Act? What Justice is doing here will be seen as a dramatic federal intrusion into the realm of state law enforcement. Many people who want to be supportive of the prosecution of this heinous series of crimes will be put off by it.

Moreover, Justice is making a foolish tactical mistake by over-complicating what should be straightforward shooting crimes that can be tried perfectly well in state court. Let's set aside "federal activity" for a moment. Any jury in the Loughner case was already guaranteed to face difficult questions about criminal intent because of the defendant's apparent mental instability.If you're the prosecutor, why would you want to force the jury to grapple, in addition, with the complexity of whether the event in question was a "federal activity"? And why give defense lawyers such an advantage? They already have a lot to work with on the issue of Loughner's sanity, no small thanks to Sheriff Dupnik's reckless commentary. Inviting them to argue that Loughner was too disturbed to have willfully interfered with anyone's federal rights can only bolster their claim that Loughner was similarly unable to form the intent necessary to commit murder and attempted murder. If I'm Loughner's lawyer tonight, I'm thinking: we've got a real shot here.

The worst case I ever had to prosecute involved a New York City undercover detective shot by drug dealers who decided to rob him rather than sell him cocaine. Miraculously, the detective survived, but his injuries were so severe he blacked out and, coupled with the fact that he'd been shot in the back by a hooded gunmen (who'd first made him beg for his life), he could not identify the shooter. The shooter was acquitted at his trial in New York state court. The police and DEA then asked us to take the case federally.

Under the "dual sovereignty doctrine," the usual double jeopardy rule does not bar a federal prosecution after a state verdict. The feds invoke dual sovereignty very sparingly -- the general guideline is that the authorities should get one chance to convict someone for a single crime. But exceptions are made in heinous cases, like the attempted murder of a cop carried out in an exceptionally sadistic manner.

So we tried the shooter and his confederates. It was very painful for everyone involved: the trial took nine weeks and the jury was out nine days before hanging, 11-1 in favor of conviction. The main problem was an implacable juror who would not reason with the other jurors. But those other jurors told me afterwards that one of the things that really bothered them was: Why, in an attempted murder case, did they have to wrestle with whether this small-time street drug gang in the Bronx was somehow engaging in activity that affected interstate or foreign commerce.

The answer was simple: it was our jurisdictional hook, the only way we could make a state shooting of a city cop a federal crime. Absent that, we had no case. We weren't crazy about being in that situation, but what we were doing was not novel. It was a tried and true commerce clause theory that cocaine is not grown in New York -- it had to have crossed state lines (really, international borders) to get to the Bronx, even if our defendants were several rungs down the ladder from that part of the biz. But the jurors were troubled by it. And these were great jurors -- thoughtful and very much in favor of giving the bad guys their comeuppance as long as the evidence was there. Still, they didn't understand what on earth interstate commerce had to do with the shooting, and they were annoyed, given the tough proof issues involved in the case, that they had to take time to wrestle with something so seemingly irrelevant.

I'm not saying it can't work. We convicted the shooter on a retrial. My point, however, is that we had trouble even though we were working on a proven theory of federal jurisdiction, and we had to do what we did because we were the last resort in a very tough case. By contrast, the Justice Department is rolling the dice on a novel and dubious theory of federal jurisdiction, and doing it under circumstances where there is no reason the state offenses cannot be successfully tried in state court. 

They are playing with fire, unnecessarily.

Hillary: For the 'Real News,' Tune In to al-Jazeera

Author: 
Andrew C. McCarthy

Yes, she did say that. ABC reports (with video) Secretary of State Hillary Clinton telling Congress that "viewership of al Jazeera is going up in the United States because it’s real news. You may not agree with it, but you feel like you’re getting real news around the clock instead of a million commercials and, you know, arguments between talking heads and the kind of stuff that we do on our news which, you know, is not particularly informative to us, let alone foreigners.”

I wonder if anyone clued Mrs. Clinton in that among al-Jazeera's most popular programs is "Sharia and Life," starring Sheikh Yusuf Qaradawi, the Muslim Brotherhood's leading light. Millions of viewers regularly tune in to hear such real news as: that the punishment for homosexuality and adultery is death by stoning; that female genital mutilation is to be encouraged (though it's not a requirement -- that's the moderate part!); that women invite rape by dressing immodestly; that Ayatollah Khomeini was right to order the murder of Salman Rushdie because he "disgraced the honor of the prophet [Mohammed] and his family, and defiled the values of Islam"; that Israel should be destroyed; that suicide bombing, even by women, is laudable "resistance"; that American soldiers and support personnel in Iraq should be killed to drive the U.S. out; and other pearls of wisdom.

I mean, is there any talking head on American television who is that informative? Who would sit through a million commercials when this kind of real news is just a click away, insha Allah?

How about a Congressional AUMF against the Somali Pirates?

Author: 
Andrew C. McCarthy

Cliff's column yesterday on the Somali pirates is great. Not only have they recently hijacked American ships and killed American citizens; he points out that they are presently holding more than 30 vessels and over 600 hostages.

Predictably, they have been encouraged by the impotence of the "international community." What ought to infuriate Americans, however, is the notion that we need a green light from that hopeless mirage to protect our citizens and interests. Thomas Jefferson, who of course was neither insensitive to the Opinions of Mankind nor without reservations about a robust, militarized central government, nevertheless saw no need to justify himself to some 19th-century version of Ban Ki-moon before, as Cliff recounts, dispatching the fledgling U.S. Navy and the newly created U.S. Marines to fight America's enemies.

Cliff relates that national-security thinkers like retired Marine general Tom Wilkerson are thinking up creative theories to justify action against the pirates under international law. That's great, but how 'bout something more tried and true: A congressional authorization for the use of military force. As we've seen with the 2001 AUMF (under which we're still at war with al-Qaeda and its affiliates), having an AUMF does not require the president to invade every country where the enemy operates, but it does endorse combat operations by our armed forces, permitting them to take the gloves off and treat the enemy as an enemy -- i.e., to attack enemy operatives and whoever is supporting them.

The United States has never taken the position that the imprimatur of international law -- as interpreted by the U.N. or professors of international law -- is necessary before we exercise our right of self-defense. The only prerequisite is compliance with the U.S. Constitution. Given the menace the pirates have become, chances are that an exhibition of clear American determination and leadership would draw international support -- just the sort of "coalition of the willing" that Cliff and General Wilkerson are talking about. But let's not leave this to the creativity of people outside of government. Let's have a little leadership from the people we elect to provide it: Congress and the commander-in-chief.

To be clear, I'm not talking about moving into Mogadishu to spend a quarter century trying to turn it into a sharia-lite version of Massapequa. I'm talking about Congress authorizing, and the president executing, exactly what General Wilkerson suggests: killing pirates at sea and in their safe harbors, and wiping out their support networks. If we don't do that, we will always be playing defense -- and Americans will continue being taken hostage and killed while the military negotiates with our enemies.

Who said it?

Author: 
Andrew C. McCarthy

Since “Who said it?” is making a revival here on the Corner, I thought I’d play, too.

My column today recounts that up until very recently we pretended that Col. Qaddafi, a committed enemy of the United States, was a valuable friend and ally of the United States. I further argue that we are making a cognate error with respect to the Libyan opposition. As I point out, Qaddafi’s main opponents are Islamists who despise us as much as they despise Qaddafi. Yet, they are being portrayed as secular freedom fighters just struggling for democracy. I never claimed that Qaddafi's main opposition is his only opposition, not did I contend that there are no authentic, pro-democracy Muslim moderates in Libya. In the interest of honesty, I conceded that I do not care about Libyans (just as I don’t think that Libyans – other than those who affirmatively despise us – care about Americans). I noted this because I don’t want to see us get bogged down in another ruinous democracy-promoting escapade. My main point, however, is that we shouldn’t make the same mistake with Qaddafi’s opposition as we did with Qaddafi himself – namely, seeing an enemy as a friend.

This argument has been caricatured on a popular blog as follows: “Andy McCarthy warns that we have no friends anywhere in Libya.”

Who said it?

1. msnbc.com

2. The Daily Dish

3. Islamonline.net

4. National Review Online

Hint: Thanks a million, pals.

Libya's Makeover

The Libyan people are no more our ally than Qadaffi.

‘The relationship has been moving in a good direction for a number of years now, and I think tonight does mark a new phase,” said Condoleezza Rice. President Bush’s secretary of state was taking time out from inventing the 70 percent of Palestinians who just want to live side-by-side in peace with the Zionist entity in order to reinvent Moammar Qaddafi.

It was September 2008, and the Freedom Agenda was in full swing, with a few hiccups: Hamas taking over Gaza, Hezbollah strangling what passed for the government of Lebanon, al-Qaeda reassembling in Pakistan, the Taliban resurging in Afghanistan, and, in Iraq, the usual: Shiites killing Sunnis, Sunnis killing Shiites, and everyone killing Americans when they weren’t busy chasing any remaining non-Muslims out of the country. What better time to see Colonel Qaddafi, heretofore a barbaric mass-murderer, as the proverbial leopard who’d changed his spots?

#ad#In reality, it had been the swift military rout of Saddam Hussein that induced Qaddafi to renounce (or claim to renounce) his ambition to develop weapons of mass destruction in late 2003. But once the hard-power promise of the Bush Doctrine gave way to the belief that thugs could be democratized into submission, the wily old terrorist found a system he could game. And game it he did.

I didn’t buy the remaking of Qaddafi then, and I don’t buy the remaking of Libya now. That puts me among a breed that, if news accounts are to be believed, is increasingly rare: I don’t care about the Libyan people -- I’m sorry, I mean the “brave Libyan freedom fighters.”

Yes, yes, I know: We are not supposed to look at Libyans now as they appeared the last time we took notice: a cheering throng greeting Abdel Baset al-Megrahi, the Lockerbie terrorist, whom the Obama administration was cajoled into ignoring when the Brits orchestrated his release from jail to appease our spot-shorn leopard. Nor are we supposed to register that Qaddafi’s main opponents in this 97 percent Muslim country are Islamists who have about as much use for us as they do for Colonel Crazy. No, this is to be the desperately wished-for Arab awakening, so we are to take the Libyans as noble secularists who just want to throw off the yoke of tyranny and establish democracy (and never you mind the sharia).

Eager to get with the program, newspapers, blogs, and television reports tell us that Qaddafi has been America’s incorrigible enemy for 30 years. The problem is, if your memory actually goes back more than ten minutes, you may recall that the same media outlets only recently pronounced Qaddafi downright corrigible.

And why not? After all, that was how the State Department saw it. As if history had never really happened, we agreed to let the strongman receive an ebullient Secretary Rice (“my darling black African woman,” as Qaddafi called her) in the very Bab al-Azizia compound that President Reagan had ordered bombed in retaliation for Libya’s 1986 terrorist attack on a Berlin disco. Qaddafi had targeted American servicemen and managed to kill two of them while maiming hundreds of other victims.

Had Qaddafi really changed in the ensuing 22 years? He arrived at the 2008 love fest arrayed in one of his lunatic costumes. The room, a smitten Associated Press reported, was “redolent of incense.” The dictator couldn’t gush enough over “Leezza,” being especially “proud of the way she leans back and gives orders to the Arab leaders,” as he had told al-Jazeera in a 2007 interview.

That is, nothing had changed. Qaddafi was the same old “mad dog of the Middle East,” the title President Reagan aptly bestowed on him in 1986 -- even before the strongman ordered the bombing of Pan-Am Flight 103, murdering 259 people onboard (including 189 Americans) and killing eleven more when the wreckage landed on the small Scottish town of Lockerbie. In 2008, just as in 1988, Qaddafi was the same dyed-in-the-wool terrorist he is today, the kind with whom the Bush administration occasionally professed to know you don’t negotiate. The kind you regard as an enemy, not a rehabilitation project.

#page#But when you are determined to see policy success rather than reality, everything is made to look different. By 2008, the Bush Doctrine was no longer about bludgeoning terrorists into submission and squeezing their state sponsors until they said “Uncle.” That was so retro, so 2001. Now, the goal was to show real political progress in the Middle East. So Colonel Crazy wasn’t a terrorist anymore. He was rebranded an ally in the War on Terror. And hey, enemy schmenemy: “I’ve said many times,” Secretary Rice declaimed, “the United States . . . doesn’t have any permanent enemies.” The Libyans -- just like us, according to Rice -- had “learned the lessons of the past.” That’s why we were now so ready to “talk about the importance of moving forward.”

And did Qaddafi ever know how to move forward, to bank on our bottomless capacity to overpay for dubious concessions. In 2004, President Bush began removing sanctions and unfreezing assets. By 2006, diplomatic relations were restored and the regime -- for which terrorism and a hammerlock on national oil riches were the keys to remaining in power -- was removed from the list of state sponsors of terrorism.

#ad#Announcing these developments, in exchange for which the U.S. demanded exactly nothing in the way of authentic democratic reform, the State Department lauded “Libya’s continued commitment to its renunciation of terrorism” and its “excellent cooperation” against the “global threat faced by the civilized world.” Oh, sure, Qaddafi’s regime was still, shall we say, “restrictive” -- the gentle term State used in asking Congress to open the foreign-aid spigot. But soon, with all the Western guidance Qaddafi was anxiously soaking up, Libya would be a “developing” country. After that, the sky was the limit, and no need to spoil the mood by mentioning the alarming number of Libyans who were crossing Syria to wage jihad against American troops in Iraq.

Finally, to further grease the wheels for Secretary Rice’s historic visit with our new ally, the administration agreed to pay Libya reparations. Yes, you read that correctly. This was for what Qaddafi claimed were damages sustained in Reagan’s 1986 bombing campaign. Drawing a moral equivalence between (a) the comeuppance served up by the United States for a savage attack on our troops and (b) Qaddafi’s mass-murder of innocents in a plane bombing, David Welch, the State Department’s assistant secretary for near-east affairs, cooed that now “each country’s citizens can receive fair compensation for past incidents.” Incidents? Yes, that’s what historic atrocities become when we pretend our enemies are our friends.

But now the enemy who became a friend has become an enemy again. Of course, he never changed -- we did. He just used the largesse and support we provided him to tighten his grip on the throne. Are you surprised?

Evidently, the State Department is. Secretary Rice’s successor, Hillary Clinton, suddenly wants Qaddafi gone yesterday. That’s after only weeks of rampage during which her boss, President Obama, couldn’t bring himself to utter a negative word about Qaddafi. In retrospect, maybe the president has decided that the lack of shovel-ready projects was not a good reason for him to use more U.S. taxpayer funds to stimulate “charities” run by the Qaddafi family.

In any event, guess who else wants Qaddafi gone tomorrow? None other than Sheikh Yusuf Qaradawi, the Muslim Brotherhood’s sharia compass, who is still tingling from his recent, triumphant return to Egypt, right across the border from Eastern Libya, where Qaddafi’s fiercest opposition just happens to be. He did make time, though, to issue a fatwa last week calling for the Libyan despot’s assassination.

Not to worry, though. We have it on good authority (the U.S. government) that the Muslim Brotherhood is a “largely secular” organization, with a real passion for democracy. Perhaps if one of the Libyan secularists is moved to carry out the fatwa -- which, of course, should be understood as a strictly secular edict -- Secretary Clinton could find a new friend of America in Sheikh Qaradawi. They say Bab al-Azizia is lovely this time of year.

—  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.

Andrew C. McCarthy

Re: Re: Welcome home, Mark

Thank God. I think I was wearing out Mark's site. I'd be careful out on that balcony, though -- you never know what real democracy might throw at you!

Author: 


Andrew C. McCarthy

The OIC and the Caliphate

The Islamic agenda is not coexistence, but dominion.

The Organization of the Islamic Conference is the closest thing in the modern world to a caliphate. It is composed of 57 members (56 sovereign states and the Palestinian Authority), joining voices and political heft to pursue the unitary interests of the ummah, the world’s 1.4 billion Muslims. Not surprisingly, the OIC works cooperatively with the Muslim Brotherhood, the world’s most extensive and important Islamist organization, and one that sees itself as the vanguard of a vast, grass-roots movement -- what the Brotherhood itself calls a “civilizational” movement.

#ad#Muslims are taught to think of themselves as a community, a single Muslim Nation. “I say let this land burn. I say let this land go up in smoke,” Ayatollah Ruhollah Khomeini famously said of his own country in 1980, even as he consolidated his power there, even as he made Iran the point of his revolutionary spear. “We do not worship Iran, we worship Allah.” Muslims were not interested in maintaining the Westphalian system of nation states. According to Khomeini, who was then regarded by East and West as Islam’s most consequential voice, any country, including his own, could be sacrificed in service of the doctrinal imperative that “Islam emerges triumphant in the rest of the world.”

Because of that doctrinal imperative, the caliphate retains its powerful allure for believers. Nevertheless, though Islamists are on the march, it has somehow become fashionable to denigrate the notion that the global Islamic caliphate endures as a mainstream Islamic goal.

It was only a week ago that close to 2 million Muslims jammed Tahrir Square to celebrate the triumphant return to Egypt of Sheikh Yusuf Qaradawi, a Khomeini-esque firebrand who pulls no punches about Islam’s goal to “conquer America” and “conquer Europe.” Yet, to take these threats seriously is now to be dismissed as a fringe lunatic, a Luddite too benighted to grasp that American principles reflect universally held truths -- truths to which the ummah, deep down, is (so we are told) every bit as committed as we are.

The caliphate is an institution of imperial Islamic rule under sharia, Muslim law. Not content with empire, Islam anticipates global hegemony. Indeed, mainstream Islamic ideology declares that such hegemony is inevitable, holding to that belief every bit as sincerely as the End of History crowd holds to its conviction that its values are everyone’s values (and the Muslims are only slightly less willing to brook dissent). For Muslims, the failure of Allah’s creation to submit to the system He has prescribed is a blasphemy that cannot stand.

The caliphate is an ideal now, much like the competing ideal of a freedom said to be the yearning of every human heart. Unlike the latter ideal, the caliphate had, for centuries, a concrete existence. It was formally dissolved in 1924, a signal step in Kemal Atatürk’s purge of Islam from public life in Turkey. Atatürk, too, thought he had an early line on the End of History. One wonders what he’d make of Erdogan’s rising Islamist Turkey.

What really dissolved the Ottoman caliphate was not anything so contemporary as a “freedom agenda,” or a “battle for hearts and minds.” It was one of those quaint military wars, waged under the evidently outdated notion that Islamic enemies were not friends waiting to happen -- that they had to be defeated, since they were not apt to be persuaded.

#page#It was, I suppose, our misfortune in earlier times not to have had the keen minds up to the task of vanquishing “violent extremism” by winning a “war of ideas.” We had to make do with dullards like Winston Churchill, who actually thought -- get this -- that there was a difference worth observing between Islamic believers and Islamic doctrine.

#ad#“Individual Muslims,” Churchill wrote at the turn of the century, demonstrated many “splendid qualities.” That, however, did not mean Islam was splendid or that its principles were consonant with Western principles. To the contrary, Churchill opined, “No stronger retrograde force exists in the world.” Boxed in by rigid sharia, Islam could only “paralyse the social development of those who follow it.” Reason had evolved the West, but Islam had revoked reason’s license in the tenth century, closing its “gates of ijtihad” -- its short-lived tradition of introspection. Yet, sharia’s rigidity did not render Islam “moribund.” Churchill recognized the power of the caliphate, of the hegemonic vision. “Mohammedanism,” he concluded, remained “a militant and proselytising faith.”

As I recounted in The Grand Jihad, Churchill’s views were not eccentric. A modern scholar of Islam, Andrew Bostom, recalls the insights of C. Snouck Hurgronje, among the world’s leading scholars of Islam during World War I. In 1916, even in the dark hours of Ottoman defeat, he marveled at the grip the concept of Islamic hegemony continued to hold on the Muslim masses:

It would be a gross mistake to imagine that the idea of universal conquest may be considered as obliterated. . . . The canonists and the vulgar still live in the illusion of the days of Islam’s greatness. The legists continue to ground their appreciation of every actual political condition on the law of the holy war, which war ought never be allowed to cease entirely until all mankind is reduced to the authority of Islam -- the heathen by conversion, the adherents of acknowledged Scripture [i.e., Jews and Christians] by submission.

Muslims, of course, understood the implausibility of achieving such dominance in the near term. Still, Hurgronje elaborated, the faithful were “comforted and encouraged by the recollection of the lengthy period of humiliation that the Prophet himself had to suffer before Allah bestowed victory upon his arms.” So even as the caliphate lay in ruins, the conviction that it would rise again remained a “fascinating influence” and “a central point of union against the unfaithful.”

Today, the OIC is Islam’s central point of union against the unfaithful. Those who insist that the 1,400-year-old dividing line between Muslims and non-Muslims is ephemeral, that all we need is a little more understanding of how alike we all really are, would do well to consider the OIC’s Cairo Declaration of 1990. It is the ummah’s “Declaration of Human Rights in Islam,” proclaimed precisely because Islamic states reject the 1948 Declaration of Human Rights promulgated by the United Nations under the guidance of progressives in the United States and the West. That is, the leaders of the Muslim world are adamant that Western principles are not universal.

#page#They are quite right about that. The Cairo Declaration boasts that Allah has made the Islamic ummah “the best community . . . which gave humanity a universal and well-balanced civilization.” It is the “historical role” of the ummah to “civilize” the rest of the world -- not the other way around.

#ad#The Declaration makes abundantly clear that this civilization is to be attained by adherence to sharia. “All rights and freedoms” recognized by Islam “are subject to the Islamic Shari’ah,” which “is the only source of reference for [their] explanation or clarification.” Though men and women are said by the Declaration to be equal in “human dignity,” sharia elucidates their very different rights and obligations -- their basic inequality. Sharia expressly controls freedom of movement and claims of asylum. The Declaration further states that “there shall be no crime or punishment except as provided for in Shari’ah” -- a blatant reaffirmation of penalties deemed cruel and unusual in the West. And the right to free expression is permitted only insofar as it “would not be contrary to the principles of Shari’ah” -- meaning that Islam may not be critically examined, nor will the ummah abide any dissemination of “information” that would “violate sanctities and the dignity of Prophets, undermine moral and ethical Values, or disintegrate, corrupt or harm society, or weaken its faith.”

Americans were once proud to declare that their unalienable rights came from their Creator, the God of Judeo-Christian scripture. Today we sometimes seem embarrassed by this fundamental conceit of our founding. We prefer to trace our conceptions of liberty, equality, free will, freedom of conscience, due process, privacy, and proportional punishment to a humanist tradition, haughty enough to believe we can transcend the transcendent and arrive at a common humanity. But regardless of which source the West claims, the ummah rejects it and claims its own very different principles -- including, to this day, the principle that it is the destiny of Islam not to coexist but to dominate.

We won’t have an effective strategy for dealing with the ummah, and for securing ourselves from its excesses, until we commit to understanding what it is rather than imagining what it could 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.

Andrew C. McCarthy

Re: SPLC on Geller

Dan, lemme get this straight: To elicit a comment discrediting Pam Geller's group, "Stop the Islamicization of America," the Post turned to Ibrahim Hooper -- the CAIR mouthpiece who, in a 1993 interview, told the Minneapolis Star Tribune, "I wouldn't want to create the impression that I wouldn't like the government of the United States to be Islamic"? [See p. 99 of this CAIR dossier from Steve Emerson's Investigative Project on Terrorism.]

Yes, indeed, how dare anybody claim that there are Islamist activists who want to Islamicize our country! That is just sheer, hateful lunacy. Next thing you know, they'll be saying the Muslim Brotherhood's spiritual guide is guaranteeing that Islam will "conquer America!" Oh, wait a minute ...

Author: 


Andrew C. McCarthy

The Proposition that Presidents May Decline to Enforce Unconstitutional Statutes Is 'Unassailable'

So said Walter Dellinger, chief of the Clinton Justice Department's Office of Legal Counsel in a formal 1994 OLC opinion. In fact, it is the president's duty to decline to enforce, for example, congressional enactments that encroach upon his authorities precisely because such statutes undermine the separation of powers that is the foundation of the Constitution. As Dellinger put it:

Where the President believes that an enactment [by Congress] unconstitutionally limits his powers, he has the authority to defend his office and decline to abide by it. . . . The general proposition that in some situations the President may decline to enforce unconstitutional statutes is unassailable. 

Not that Jonah and Shannen need the help, but this has long been the position of the Justice Department's Office of Legal Counsel, under administrations of both parties. I wrote a column on this topic five years ago (it's here) when former Clinton Justice Department officials seemed to get amnesia about the president's prerogative not to enforce unconstitutional statutes. They were then attacking President Bush's authorization of a wartime warrantless surveillance program that did not comply with Congress's FISA statute (i.e., the Foreign Intelligence Surveillance Act). Bush's theory (which had also been Clinton's theory) was that, regardless of FISA's purported limitations on executive power to collect intelligence against foreign threats, the president maintained authority under Article II of the Constitution that could not be reduced by a mere statute. That theory had also been espoused by the federal courts, including the Foreign Intelligence Court of Review.

The problem with what the Obama administration is doing with DOMA is political, not legal. Nothing requires a president to defend or enforce a law he truly believes is unconstitutional, or even a law he believes is constitutional but chooses, in his discretion, not to enforce as a matter of policy (see, e.g., Obama on the immigration laws).

Putting the law to the side, it is outrageous for an administration to use its Justice Department's privileged position as the lawyer for the United States to sabotage a case, and for a president to claim his legal position is evolving when, in fact, he is transparently pandering to a key constituency. Those are reasons to vote him out of office, and for Congress not to trust the administration to carry out the Justice Department's mission faithfully -- Congress ought to be slashing DOJ's budget and holding aggressive DOJ oversight hearings. But I don't see anything legally wrong with Obama's refusal to defend DOMA. (FWIW, I think it's ethically preposterous to claim DOMA is unconstitutional yet continue enforcing it -- but, again, I think the idea is to hold Obama politically accountable.) 

Author: 


Andrew C. McCarthy

A Realistic Democracy Project

John Bolton's essay in Standpoint (flagged in the NRO web briefing) is terrific. Assessing the tumult in the Middle East, Egypt in particular, he argues for a careful, realistic promotion of democracy that is honest about how difficult it is to sow a true culture of democracy; clear-eyed about how premature introduction of democratic processes will only empower totalitarians; and insistent that -- while we should always promote our principles -- our overriding concern must be American national security. Such a framework would obviously tie the extent of material support we are willing to give to the likelihood of concrete advances of American national interests, not to pie in the sky.

For what it's worth, I think that would invite a hard-headed inquiry into the question whether promoting Western liberty (assuming for argument's sake that it would eventually take hold in the Muslim world) would actually (a) make us safer from jihadist terror, and (b) undermine the broader, stealthier "civilizational jihad" being waged against us by the Muslim Brotherhood and its partner Islamist organizations. It would also call for consideration of a question of national concern that the nation never got to debate: Under what conditions, if any, should we deploy our military for the principal purpose of democracy promotion in Islamic countries? And it would invite the long overdue examination of the question whether you can promote authentic democratic culture in countries that insist on establishing Islam as the state religion and installing sharia as a principal source of law. To be clear, these are considerations I believe would be on the table in the kind of democracy promotion framework Ambassador Bolton is describing. They are not points Bolton himself makes.

As for the points he does make, I think these are the most significant:

[T]oday's pressing question for Egypt is what steps the new military rulers should take. First, there should not be a rush to elections. It was a fatal mistake for Palestinians when the Bush Administration, reading supposedly irrefutable polls that Hamas could not win, scheduled elections in 2006 that allowed Hamas to do just that. Democracy is a culture, a way of life, as [John Stuart] Mill and [Jeane] Kirkpatrick recognised, not simply the counting of votes. Any realistic assessment of Egypt's "opposition" shows it to be weak, disorganised, and indifferently led. Moving to early elections, as the Muslim Brotherhood wants, will not bring the Age of Aquarius, but only benefit those factions with existing political infrastructures, which is a formula for domination by the Brotherhood. Far better to which is unambiguously the more pro-democratic course. 

Second, participation in the elections, whenever scheduled, should be limited to real political parties. From Mussolini to Putin, from Hamas to Hezbollah, terrorists, totalitarians and their ilk masquerading as political parties do not really believe in representative government. Banning such faux-democrats from participating in the legitimate political process until they become true political parties is entirely legitimate, and may well be critical to avert disaster.  America did so for decades by outlawing the Communist Party, as post-World War II Germany did with the National Socialists. Thus, for President Obama to say, as he did, that the transition "must bring all of Egypt's voices to the table" is not only naive, but fundamentally dangerous.  

In order to join legitimate political parties in contesting elections, we asked in Lebanon and in Palestinian elections that terrorists had to renounce violence (and mean it), give up their weapons, and abjure the prospect of resorting to force if they didn't like the outcome. Sadly, we did not insist on these standards, and the results in Lebanon and Gaza prove our mistake. We should not repeat these errors, although Obama seems well on the way to doing so.

Third, the West should provide material assistance to those truly committed to a free and open society. In days of yore, the United States supplied extensive clandestine assistance to prevent communist takeovers in post-World War II elections in France, Italy and elsewhere. Undoubtedly, the Obama Administration is too fastidious for such Cold War-style behaviour, but perhaps overt, democratic institution-building assistance is not too much to ask.

It's well worth reading the whole thing.

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Andrew C. McCarthy