Andrew C. McCarthy's Blog, page 73

Corker's Case for START: As Convincing as 'A Letter from My Mother'

Patting himself and his fellow Senate Republicans on the back for selling out on President Obama's New START treaty, Bob Corker absurdly claims that all is well because -- despite treaty terms that patently disserve our national security -- senators have held debates, and because he and Sen. Richard Lugar have drafted a swell "resolution of ratification" that purportedly addresses New START's serial flaws. Meantime, an unidentified John McCain admirer tells Rich the crafty ol' Maverick deserves kudos for pressuring Obama into writing a letter talking up missile defense.

Whoopee! Don't you feel better about the GOP now?

This is the most craven sort of nonsense. These senators are trying to rationalize their inexcusable approval of a bad treaty they lack the backbone to vote down. Holding debates? It's a commonplace to mock the U.N. General Assembly as a "debating society" because the term connotes how inconsequential its exertions are.

As for the vaunted resolution of ratification, I defer to John Bolton and John Yoo. Writing in the New York Times last month, they explained that the Obama administration hoped to sell its "dangerous" bargain by diverting attention from the treaty itself. Attention would instead be focused on the ratification resolution, which they predicted would be loaded up with "a package of paper promises" -- variously called “conditions,” “understandings” and “declarations” -- that would purport to address concerns about missile defense, the condition of our nuclear arsenal, treaty limitations on conventional weapons, etc. Ambassador Bolton and Professor Yoo continued:

Senators cannot take these warranties seriously — they are not a part of the text of the treaty itself. As Eugene Rostow, a former under secretary of state, put it, such reservations and understandings have “the same legal effect as a letter from my mother.” They are mere policy statements that attempt to influence future treaty interpretation. They do not have the force of law; they do not bind the president or future Congresses. The Constitution’s supremacy clause makes the treaty’s text the “law of the land.”

Instead, Bolton and Yoo asserted, "[t]o prevent New Start from gravely impairing America’s nuclear capacity, the Senate must ignore the resolution of ratification and demand changes to the treaty itself." This is exactly the duty from which Senate Republicans are abdicating. The ratification resolution is nothing. The presidential letter Sen. McCain is said to have extracted is less than nothing: it lacks even the patina of a legislative act and is about as enforceable as a presidential commitment to close Gitmo or televise the government's health-care deliberations on C-SPAN.

The administration is wrong on national-security policy and politically weakened by the midterm thrashing. The treaty is awful, which is why there are so many things to address in resolutions and letters. If you can't get Republican senators to do the right thing under these conditions, then when?

One more related point. Based on my argument in yesterday's column that the Senate may not unilaterally rewrite treaties or enact amendments that alter treaty terms, a friend suggests there is daylight between my position and that of Bolton and Yoo. There is none. Yes, Bolton and Yoo recount Senate action that has resulted in treaties being altered, but here's what they say:

When it approved the Jay Treaty in the 1790s, which resolved outstanding disputes with Britain, the Senate consented only on condition that President George Washington delete a specific provision on trade. Washington and Britain agreed to the amendment, and the treaty entered into force. In 1978, the Senate demanded changes to the text of the Panama Canal treaties as the price of its consent

This is no different from what I am saying. The Senate in these cases did not claim the power to change treaty terms or enact resolutions that pretended to fix deep problems without altering treaty terms. To the contrary, senators told Presidents Washington and Carter that there would be no consent unless they went back to the countries in question and got the problematic terms changed.

The Senate can pass amendments that amplify American understandings about a treaty; the Senate cannot unilaterally alter the core understandings in an agreement -- that latter would render it no longer an agreement, and hence not a treaty. Thus did Messrs. Bolton and Yoo conclude:  "While the Constitution gives the president the prime role in the treaty process, the Senate has the final say. If 34 senators reject a treaty, no president can override them."

Voting to reject is the Senate's duty when confronted with a treaty that disserves the national interests. It is the current Senate's dereliction on New START -- a fact no resolution or presidential letter can paper over.

Andrew C. McCarthy

Advise, Don't Consent

Senators cannot renegotiate a treaty, only reject it.

President Obama is writing to the wrong people, and those wrong people are hopelessly confused about his power and their own. This is how bad agreements are born.

Senate Republicans could easily kill the wayward New START treaty, and tell the administration to go back to Moscow and cut a deal that promotes American national security. The Constitution disfavors treaties that are not patently in U.S. interests, requiring a two-thirds Senate majority for approval -- seven more than the 60-vote threshold generally required to move any contentious legislation through the upper chamber.

#ad#Even in this wretched lame-duck session, without the six new Republicans who will join the caucus in two weeks, the GOP’s 42 senators ought to be more than sufficient to stop a bad treaty. Even without a Scoop Jackson Democrat to count on, how tough could it be to prevent nine Republicans from defecting -- from saying “yes” to a pact that imperils U.S. missile defenses, does nothing about an aggressive Russia’s huge numerical advantage in tactical nuclear weapons, and creates a sovereignty-sapping “Bilateral Consultative Commission” that would undermine the Constitution’s treaty process by circumventing Senate approval of future restrictions (beyond those in New START) on our national-defense capabilities?

Pretty tough, it turns out.

As is too often the case, Republican senators are taking their foreign-affairs cues from John McCain and Richard Lugar, leaders of the caucus’s moderate wing -- which is to say, its incoherent wing. They want to support the treaty because to do so would be bipartisan (yay!), but, dimly perceiving that the treaty is atrocious, they also want to rewrite it.

So we are now watching them play “let’s pretend.” The Senate is pretending that it has the authority to rewrite a treaty, while the president pretends that the unacceptable treaty can be fixed by writing letters to the senators who need courting rather than writing a new treaty with Russian leaders who need convincing.

As reported by National Review’s Robert Costa, this lame-duck weekend featured an amendment offered by Senator McCain to undo New START’s most noxious (but by no means its only noxious) provision, the linkage of strategic-missile reduction and U.S. missile defense. Sen. Jeff Sessions went beyond that, endeavoring wholesale revisions of treaty’s missile-defense terms. Taking “let’s pretend” to new heights of fantasy, Republican senator James Risch tried his hand at crafting a unilateral treaty on tactical nukes. Actually, “non-lateral” would be more accurate: Because tactical weapons are not covered at all in New START, Risch’s exercise would have no more effect on Russia than it would on his state of Idaho.

If we could just put aside that minor inconvenience known as the Constitution, there’s no question that the Republicans are right on the policy. The Russians claim that New START prevents the United States from beefing up protections against missile attacks. That means possible strikes not only by Russia but by the likes of North Korea, Iran, and -- if we look into our crystal ball -- a Pakistan whose government could fall into jihadist hands, or even, say, an Egypt or Saudi Arabia that goes both jihadist (due to internal revolt) and nuclear (due to Western fecklessness in responding to Iran). And that is to say nothing of nukes, including stray Russian nukes, that could fall into the anxious hands of al-Qaeda or other terror networks.

In support of its interpretation, Russia points to language in the treaty’s preamble. That’s not all: There is much circumstantial corroboration for the Putin/Medvedev position. To avoid upsetting the Russians, the Obama administration has reneged on the U.S. commitment to deploy missile-defense components in Poland and the Czech Republic. It has explicitly limited missile defense in a critical 2010 report in order to avoid disturbing the “strategic balance” with Russia and China (apparently, the administration believes our security somehow hinges on maintaining current threat levels rather than altering them in our favor). And administration officials have refused to disclose the negotiation record for New START, which would allow senators to judge for themselves what makes the Russians think the treaty means what it certainly appears to say.

#page#It is thus eminently understandable that senators concerned about our security should want New START drastically altered. The Constitution, however, does not permit them to do it themselves. Article II’s treaty clause quite clearly empowers the president alone to make treaties. The Senate’s limited roll is to provide the president with its advice and to decide whether to consent -- meaning the senators get to counsel President Obama on how to deal with the Russians, and they get to say no or yes to the deal the president has struck.

#ad#They do not get to rewrite the deal, and trying to do so is worse than an empty gesture -- it is a feint. Senatorial treaty amendments, all of which Democrats have voted down so far, would be of no legal consequence even if they passed. The reason is simple: They would not be the deal to which the Russians agreed with President Obama. A treaty is an agreement between the United States and another country. It is not an agreement between the president and the Senate to ignore the language the president and another country have endorsed.

Unless the president, the only official in our government authorized to make treaties, were to go back to the table and get Russian assent to any Senate amendments (dream on), such amendments are nullities. But the public does not know that, and the commentary certainly has not been edifying in this regard. Consequently, senators who have the power to block New START from being considered, and to vote it down if it reaches final floor consideration, appear  to be preparing an escape hatch: They will abdicate their duty to withhold consent from a bad agreement but tell constituents they did their best to improve its flaws. It’s a cynical charade. The way to improve New START’s flaws is to tell President Obama to go back to the drawing board.

Throughout the New START debate, the Heritage Foundation’s Baker Spring has provided stellar analysis on why the treaty should be rejected -- with one unfortunate exception. Mr. Spring maintains that “In giving its advice, the Senate can alter the text of any treaty brought before it.” That is wrong, and most surprising coming from a bastion of constitutional originalism.

The Constitution’s treaty clause plainly assigns the making of treaties -- i.e., negotiating them with foreign sovereigns and writing them -- to the president. Spring’s support for the proposition that the Senate’s advice power somehow authorizes it to rewrite treaties consists of a 1981 Government Printing Office manual on Senate procedure and a 2001 report by the Senate opining on its own authority -- an extravagant propensity of lawmakers that the Framers aptly feared.

Yet as John Yoo explains with characteristic erudition in The Powers of War and Peace, the Framers gave the executive near plenary power over foreign affairs, “a point that met with rare agreement by Thomas Jefferson, Alexander Hamilton, and Chief Justice John Marshall.” Thus was the treaty clause placed in Article II, the source of presidential authority, not in Article I, which enumerates congressional powers.

Under the principle laid down by James Madison, Article II’s few legislative intrusions -- such as the Senate role in treaty making -- are to be narrowly construed. They are exceptions, which lawmakers have no right to extend. The power to give advice is just that: to give advice. It is not license to change a treaty. If the Senate wants a treaty changed, it must withhold its consent.

In the Washington Times, Bill Gertz reports that, in an effort to quell concerns over his handiwork, President Obama wrote Senate leaders over the weekend, assuring them that the Russians are wrong. He is committed, the president promises, to robust missile defense and, in particular, to upgrades in the capacity of the U.S. and our allies to fend off potential strikes by Iran.

The guys who need to know that, and to sign off on it, are not John McCain and Richard Lugar. They are Valdimir Putin and Dmitry Medvedev. And the signing off needs to be done in a formal treaty. The Republicans’ choice is an easy one here: Block New START and tell President Obama to get back to them when he has in hand a formal treaty that is consistent with his letter. The question is: Why are Republicans turning something so easy into a nail-biter?

—  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: DOJ Conspiracy Case on Assange

Dan, that's interesting news, and it makes sense. I raised this possibility in the op-ed I did for the New York Daily News on Sunday. Countering the most prominent arguments made by opponents of an Assange prosecution, I argued:

WikiLeaks fans next attack allegations of espionage on jurisdictional grounds, arguing that the overseas acts of non-Americans fall outside the reach of our laws. As the Congressional Research Service notes, however, espionage is among the plethora of U.S. penal laws given extraterritorial effect. What's more, Assange appears to have encouraged traitorous U.S. officials to steal classified information and transmit it to WikiLeaks for disclosure. That would raise the specter of criminal conspiracy - and no matter where they are located, conspirators are vicariously responsible for the acts of their American confederates.

If DOJ can establish that Assange and Manning are coconspirators, it would sidestep two challenges. First, as contended above, it would moot the dubious claim that there is no jurisdiction over Assange -- if he is vicariously liable for Manning's actions, then there is jurisdiction over Assange if there is jurisdiction over Manning.

Second is the question of whether Assange is a journalist (something Gabe Schoenfeld raised a few days ago in a post I haven't had time to answer yet). Since conspirators are equally responsible for all actions of every conspirator, then Assange would be legally culpable for Manning's unlawful conversion of classified information. While some argue that journalists may publish any information that falls into their lap (a position I don't buy), I think very few people believe journalists have immunity to steal information in order to disseminate it.

Andrew C. McCarthy

'Failure is not an option.'

James Taranto on Attorney General Holder's weak response to the constitutional arguments that prevailed against Obamacare in federal district court this week.

Andrew C. McCarthy

"Failure is not an option."

James Taranto on Attorney General Holder's weak response to the constitutional arguments that prevailed against Obamacare in federal district court this week.

Andrew C. McCarthy

The Transies and the Treaty

Transnational progressives would rather be congenial than be right.

Here is what you need to understand about the Republican party’s transnational progressives, folks like Condoleezza Rice, John McCain, Richard Lugar, and Lindsey Graham: They proceed from the premise that it serves our national interests to be willing residents of a Potemkin and reliably anti-American village called the “international community.” That’s why it’s no surprise to find them endorsing the ratification of New START.

#ad#We might call the spell they are under Beltway Syndrome. It’s the same spell that tells them it’s better to be bipartisan than right. Beltway Syndrome, reinforced by media hypnosis, convinces those in its thrall that a hapless public is just dying for them to “get things done.” In reality, the public is horrified by most things done in the Beltway and simply wants Washington to stop. This, indeed, was the loud and clear message of last month’s election, which swept lots of small-government conservatives into power: Don’t do anything it is not absolutely necessary to do -- it just costs us money, complicates our lives, and degrades our national security.

Unfortunately, the cavalry does not ride into Washington for another couple of weeks. There is still time to make mischief, one example of which is New START, President Obama’s New Strategic Arms Reduction Treaty with Russia.

The Republican transies are lining up behind New START, hoping to ram it through in the lame-duck session of a discredited Congress. Sure, it may be a bad deal for the United States, but it’s so international. If you’ve got Beltway Syndrome, that makes it an occasion for bipartisan cooperation -- a Washington “compromise” in which the post-sovereign Left gets its way, American self-determinism takes a hit, and the legacy press doles out the love to those worldly GOP moderates who make it all possible.

In truth, New START is worse than a bad deal. It does nothing to reduce Russia’s huge advantage in tactical nuclear weapons. Instead, President Obama proposes to tie only America’s hands. The reductions and caps apply to strategic nukes, the category in which the United States holds an advantage that Russia, a declining power, cannot hope to dent absent our self-defeating complicity.

But that’s not the half of it. The word “deal” implies a contract, a meeting of the minds. On New START, we already know there is no such thing. Going in, before we ever get to ratification, the Russians have already proclaimed the treaty an ironclad lock against expanded American missile defense. They’ve got the treaty language to prove it, and they are insistent that future U.S. moves to promote our security would scotch the whole arrangement.

The Obama administration claims that this interpretation is wrong. Yet, keeping with standard Obama operating procedure, the White House is refusing to disclose the negotiating record. On a certain level, this is understandable. What’s binding in a treaty -- or, for that matter, any agreement or statute -- is the formal language the parties adopt, not the sausage-making it took to get there. Nevertheless, where there is ambiguity, as there obviously is in New START, the underlying record clues us in on what the parties understood those ambiguous terms to mean, mutual understanding being the essence of a contract.

More significantly, the Senate’s duty to advise on a treaty before deciding whether to consent to it is a constitutional obligation. And just as important, the Constitution has a bias against treaties: The Framers prescribed the need for international agreements to achieve super-majority approval -- two-thirds of senators assenting -- because they were appropriately wary of international entanglements. The treaty clause is designed to ensure that the nation signs on only to sensible agreements.

Quite apart from the Constitution and black-letter contract-law principles, one would think the senators’ gigantic sense of amour propre would move them to energetic investigation. After all, during the Bush years, the mere fact that internal executive-branch memoranda existed was enough for Democrats to demand disclosure -- and on all manner of things less consequential than a nuclear-arms compact. But that was then, and that was Democrats, whom the Beltway hypnotists hold to a different standard of bipartisanship.

So the GOP transies have a different plan, which Rice -- President Bush’s secretary of state -- has taken to the Wall Street Journal’s editorial pages to urge. The Senate, she says, should consent to New START, but with caveats to clarify our disagreements with the Russian interpretation of the treaty.

Ah, yes, caveats. This is diplo-speak for papering over the uncongenial fact that an agreement lacks agreement. Caveats, a staple of treaty-making, go a long way toward explaining why the international community is no community at all. The players do not operate under the same laws, values, or culture. To convey the illusion of community -- as in “unity” -- nations make ever more treaties; betraying the reality that it’s all smoke and mirrors, they then festoon the ratification process with qualifications that dissent from this or that term. These caveats do not actually become part of the agreement. They are, instead, a salve for a senator who’d rather not do his job and vote nay.

#page#The charade seems harmless enough, except when it’s not. Take, for example, the matter of interrogations. In 1984, the international community came together around a treaty called the United Nations Convention Against Torture and Cruel, Inhuman, and Degrading Treatment (UNCAT). The United States had the good sense to stay out of this feel-good exercise for many years. Assaults involving torture were already illegal under various state and federal laws, and the terms “cruel,” “inhuman,” and “degrading” (CID) are hopelessly vague, such that delegating their definition to international bureaucrats would be imprudent, to say the least.

#ad#Alas, good sense crashed to a halt during the Clinton administration, which, like the Obama administration and the GOP transies, never saw a treaty it didn’t like. So with Republican help, President Clinton got UNCAT ratified. But what about concerns that CID terms were too vague, that they would place our security at the whim of the left-wing law professors to whom international bureaucrats turn for guidance? No problem, the Senate decided, just add some caveats.

That’s exactly what the senators did. Unable to alter the terms of the treaty, which drew an absurd equivalence between CID and torture, senators convinced themselves that the problem could be solved by stressing that the United States understood the CID term to be a nullity -- banning nothing more than what U.S. law already prohibited under the Fifth, Eighth, and Fourteenth Amendments.

If viable, this caveat would have been crucial. Those constitutional amendments generally protect only defendants prosecuted in our civilian criminal-justice system. They ban only treatment that “shocks the conscience,” which means they are situational -- what is shocking under peacetime conditions often is not under wartime exigencies. And constitutional rights are (or were at the time) unavailing for aliens detained outside the United States.

When push came to shove, though, the caveat proved worthless. After 9/11, the Bush administration authorized enhanced-interrogation measures which -- we now know for a certainty, thanks to the Obama administration’s declassification of the underlying guidelines -- came nowhere close to the legal definition of torture. Yet the international community accused America of torture anyway. The U.S. had ratified UNCAT, we were told, and its CID provisions made any type of degrading treatment the legal equivalent of torture.

The transies didn’t want to know from caveats. None other than Secretary Rice was adamant on that score. Speaking in Kiev -- before an audience that included those epitomes of humanitarian interrogation practices, the Russians -- she boldly declared that UNCAT “prohibits, of course, cruel, inhumane, and degrading treatment.” And she added: “As a matter of U.S. policy . . . [CID] obligations extend to U.S. personnel wherever they are, whether they are in the United States or outside of the United States.”

Wait a second, many of us countered, what about that caveat? Didn’t the Clinton administration and the Senate assure us that the international construction of CID wouldn’t matter, that we hadn’t signed on to anything that gave new protections to bad actors? Caveat shmaveat, thundered Senator McCain, the United States was violating international law, period.

Bear in mind that by the time Secretary Rice and Senator McCain (echoed by Senator Graham) did their grandstanding in 2005, the enhanced-interrogation methods applied to top al-Qaeda detainees had thwarted terrorist plots, had enabled the capture of high-ranking jihadists, and had saved American lives. Yet these security achievements didn’t matter. In order to appease the international community, we had to pretend that we were ruled by the letter of UNCAT -- and if that meant ignoring the Senate’s caveat, then the caveat would be treated as just the empty gesture that it was.

#page#Perhaps we could agree, for argument’s sake, that there are times when caveats might make some sense. Some treaties, like UNCAT and the Geneva Conventions, are wide-ranging, multilateral affairs. Not just two countries, but nearly every country, agrees to be bound. That wouldn’t make any difference to me -- as UNCAT shows, a bad deal is a bad deal no matter how many countries agree to it -- but one can certainly understand the argument that there may be so much good in a global treaty, and that it may bind so many countries, that a bad term or two is worth chancing. Maybe it’s worth ratifying with caveats in the sunny hope that, if the time comes, American officials will honor the caveats over the treaty language. But New START is not a multilateral agreement. It involves only two states, and they disagree on core elements.

#ad#There are a plethora of reasons why New START is a step backwards. Interestingly, Rice’s op-ed lays many of them out. Most consequentially she says, “Breaking the link between offensive force reductions and limits on defense” -- i.e., the link the Russians say New START reconnects -- “marked a key moment in the establishment of a new nuclear agenda no longer focused on the Cold War face-off between the Warsaw Pact and NATO.” This key moment, she elaborates, enabled us to focus on our protection against attack by rogue nations that were (and are) far more likely than the Russians to use nuclear missiles. Alas, the decoupling of that link is gravely imperiled by New START. By contrast, New START is irrelevant to other salient matters Rice offers as selling points: strategic-missile reduction, modernization of our nuclear arsenal, and on-site verification.

Russia’s strategic nukes will be reduced even if we do nothing, because Russia cannot keep up economically; the cap of 1,550 weapons works only against us. The impediment to modernization of our nuclear arsenal is not Russia; it is President Obama. He is demanding the bad New START agreement as his price for a modernization commitment that cannot be enforced. That’s a net security loss. Better to elect a new president in two years for whom national defense is a priority.

Futhermore, in touting New START’s anticipated reinstatement of “on-site verification of Russian nuclear forces,” Rice erroneously compares it with treaties struck by Presidents Reagan and George H. W. Bush with the Soviets, which she hails for their “meaningful verification” requirements. But the word “meaningful” makes all the difference. New START’s verification plan is not meaningful. Former Reagan administration officials Ed Meese and Richard Perle point that out in a competing Wall Street Journal op-ed, convincingly arguing that President Reagan would never have agreed to something as foolish as New START. Moreover, as Rice’s State Department colleague John Bolton has contended in National Review, it was President Obama who allowed the verification procedures of the former START treaty to lapse, claiming them to be unnecessary. Obama is thus in no position to stress verification as a rationale for a bad agreement whose verification terms are inadequate, and Rice is naïve to cite verification as a point in New START’s favor.

The Senate’s constitutional duty is to reject bad treaties. Caveats cannot camouflage the dereliction of this duty. If the Senate consents to New START, history shows that it will be consenting to the literal terms of a bad treaty, one senators have inexcusably allowed the Obama administration to prevent them from investigating. For the sake of mollifying our unruly friends in the international community, and pleasing transies everywhere who indulge the pipedream of a world without nukes, the Senate will have degraded our security. And that can be said without caveat.

— 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

Gitmo Follies

Obama's Justice Department should ask Obama's State Department about jailing jihadists.

Attorney General Eric Holder is dismayed over Congress’s refusal to cough up funds that would allow the Obama administration to close down Guantanamo Bay and transfer the 170 fire-breathing jihadists still detained there to the United States -- where, he insists, they’ll be kept under lock and key.

P. J. Crowley, the State Department’s assistant secretary for public affairs, is dismayed, too. He claims that federal judges are ordering the release of fire-breathing jihadists in droves, purportedly requiring that we free them out from under lock and key -- whereupon they return to the anti-American jihad at an alarming clip, a totally predictable outcome Mr. Crowley says the Obama administration totally predicted.

#ad#Do these guys ever talk to each other?

Just to recap, the Obama administration, like the Bush administration before it, is extremely sensitive about Gitmo. Yes, the facility is a perfectly secure, offshore military detention center that has safely yet humanely sidelined hundreds of trained terrorists whose highest ambition is returning to the business of killing infidels. But the detention center has been the source of ceaseless sniping by our great friends in the “international community,” which can make for testy times at high tea, a fact that is of apparently greater importance than neutralizing jihadists.

Thus did the Bush administration agree with these friends that Gitmo should be closed. As is his wont, President Obama exacerbated his predecessor’s mistake with an ill-advised promise to shut the place down, notwithstanding the absence of any plan for disposing of the terrorists lodged there. Egged on by the State Department, which bears the brunt of the aforementioned sniping, both administrations made lunatic agreements under which various countries accepted dribs and drabs of Gitmo’s murderous population.

To the layman, untutored in the wiles of statecraft, it seemed a terrible idea: springing enemy fighters, even as war was still raging, when they could have been kept on ice in the Caribbean sunshine. But don’t fret, the diplomats told us, we have Grade-A precautions in place. One of those turned out to be a Saudi rehab program in which scholars of Wahhabism, the official ideology of both Riyadh and al-Qaeda, will convince the jihadists that they have jihad all wrong. And the diplomats omitted mention of the bribes and blandishments the Obama administration has offered such powerhouse allies as Kiribati, Slovenia, and Belgium, to take some of the jihadists off our hands.

Now the intelligence community tells us -- mirabile dictu -- that at least 150 Gitmo grads have gone back to “terrorist or insurgent activities.” That’s a 25 percent recidivism rate, and it’s probably both understated and rising.

To better understand these developments, Fox News called on Mr. Crowley, an admirer of many Islamic regimes who is nevertheless comfortable blasting the state of Arizona over its attempt to enforce federal immigration laws. Crowley first grossly misstated the pertinent facts, intimating that the recidivists had been ordered released by the courts. In fact, most of the hundreds of former detainees were released pursuant to diplomatic agreements, the lion’s share of them during the Bush years, when the Gitmo population was more than four times its present level.

#page#Furthermore, federal judges have no authority to order detainees released. It is true that, in several cases, the judges have ruled that the military designation of a detainee as an enemy combatant was based on insufficient evidence. Ruling on the validity of that designation, however, is the limit of the judicial role. Neither Congress, in giving federal appeals courts an unprecedented power to review wartime detention, nor the Supreme Court, in extending that power to the lower courts, purported to endow the judges with the power to order the release of terrorists held at Gitmo. Once a judge strikes the designation, it is for the executive branch to decide whether to appeal, detain on alternative grounds, or try to find a country willing to accept custody.

#ad#It is the Obama administration that has effectively given the courts the power to unloose jihadists. According to Crowley, vacating the combatant designation is the same as directing release. This, the Obama administration holds, is what “the rule of law” dictates. Don’t look at the president, he says, it’s the courts that run the show, and if they say spring ’em, the terrorists must be sprung -- even if we all know that means they go right back to the fight.

Indeed, Crowley claims this is not only a necessary result but a result that was fully anticipated. As he put it, the administration “actually expected this” growing recidivism but opted to release the jihadists, anyway.

Since leaving Gitmo, some alumni have carried out savage attacks, killing scores of people. Others are now high-ranking figures in al-Qaeda’s network: Their credentials burnished by a stint in U.S. detention, they now coordinate operations against U.S. troops.

Yet, though it expects one in four detainees to return to the jihad, the administration has no plans to change its approach, except for this: Attorney General Holder says the president still wants Gitmo closed and the trained jihadists brought into the United States. If the administration has its druthers, stateside is where they’ll be as judges continue to review their combatant status.

That means this is where they’ll be when judges vacate combatant designations, which the administration claims means they must be released, which enables the terrorists to go back to the jihad, which the administration fully expects them to do.

I wouldn’t hold my breath waiting for the new Congress to help the president close Gitmo.

– 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

Republicans Still Haven't Learned

No real tax cut, lots of deficit spending: You call that a deal?

‘If we’ve learned anything over the last two years, it’s that we cannot spend our way to prosperity.” That’s what Republican lawmakers proclaimed in their “Pledge to America,” the campaign document spelling out their agenda in the 2010 midterm election. They won a historic electoral victory, an endorsement from Americans who trusted them to act on the message: Stop spending money we don’t have, that we have to borrow from China, and that our children and their children will have to pay back. And before their new House majority has even been sworn in, Republicans have decided to give spending our way back to prosperity one more try.

In the process, they’ve increased the chance that the most free-spending, anti-prosperity president in American history will be reelected come 2012.

#ad#Had I taken the Republican pledge seriously (I didn’t), I’d be crushed. “Crushing,” by the way, is the word the pledge used to describe the national debt. That was before GOP lawmakers voted in overwhelming numbers (37 out of 42 in the Senate, 138 out of 174 in the House) to add about $858 billion to it on Thursday.

So much for the pledge’s inveighing against “trillion-dollar ‘stimulus’ spending.” Republicans have added hundreds of billions of dollars to the national debt -- a debt that is already $14 trillion even by Washington math and closer to $130 trillion if we apply the math Washington imposes on everyone else.

Estimates of the exact amount of deficit spending in the tax deal vary: The Senate’s Joint Committee for Taxation officially put it at $858 billion, the figure reported by the Wall Street Journal. Charles Krauthammer contends that the combination of spending increases and tax cuts tops out at $990 billion. And (as Dr. Krauthammer notes) even Rep. Paul Ryan -- the GOP’s reputed scourge of Big Government, except when voting for TARP, auto-company bailouts, and the confiscation of executive bonuses -- concedes that the tax deal, which he strongly supported, includes a staggering $313 billion in spending add-ons beyond what was necessary to maintain the Bush tax rates.

Estimates all agree on one thing -- the bill’s spending cuts to reduce the size and scope of government add up to zero, no matter who does the counting.

Even if you drink the Kool-Aid that says, “Don’t worry about the deficit effects of tax cuts because they invariably stimulate the economy and pay for themselves,” Republicans have just agreed to massive, unfunded spending, much of it unrelated to tax cuts. Not only do we have the familiar waste (ethanol, “renewable” energy, etc.), as Hugh Hewitt points out, “there is at least $75 billion in new spending in the plan, agreed to by the GOP less than five weeks after the country fairly screamed, ‘Stop Spending Our Children’s Money!’”

The GOP pledge blasted President Obama and Democratic leaders for breaking a solemn promise to “put the brakes on Washington’s spending habits,” and for instead “stepp[ing] on the accelerator and demonstrat[ing] unparalleled recklessness with taxpayer dollars.” Right.

The pledgers even patted themselves on the back for their underwhelming promise to roll back spending to 2008 levels and to save us “at least $100 billion in the first year alone.” Now, in a single bill just three months later, they have voted for spending that is more than eight times the amount of this (currently nonexistent) $100 billion in savings, and more than twice the size of the (nevertheless huge) 2008 budget deficit.

“But wait,” you say, “the GOP had to do this. There was no other way to save the Bush tax cuts, and that makes it okay, because tax cuts are stimulative. They actually raise revenue in the long run.” In this case, that is both wrong and irrelevant.

It is wrong because income taxes are not being cut -- the deal stops Democrats from raising them -- and because the lower rates are only kept in place for two years. After that, the increase that would have happened two weeks from now kicks in. Lower tax rates only spur economic growth in a meaningful way when they are permanent -- meaning, when they will persist, absent an act of Congress that changes them. There has been no meaningful growth in the past two years because the specter of tax increases hovered over businesses and entrepreneurs, depressing investment and hiring. Why should the next two years be any different, with the same specter hovering -- this time with even more trillions in debt to finance?

#page#The “tax cuts raise more revenue” line is irrelevant, moreover, because even if revenue does increase, nothing in the bill stops our insatiable government from spending it. Debt gets reduced only if revenue is used to pay it down rather than fund new spending. And with Republicans now agreeing to add debt even though the government is already trillions in hock, and even though the voters have just finished demanding an end to this recklessness, why should anyone believe they are serious about retiring debt?

#ad#At most, lower taxes may spell a mild, temporary boost for the economy and a marginal, temporary decrease in unemployment. But with his media champions spinning every scintilla of good news as a full-blown, let-the-good-times-roll recovery, that could be just the bump President Obama needs for his reelection campaign.

Moreover, the president has set the GOP up for an annual whipping right around Christmas time. Next year, the temporary two-point cut in employee payroll taxes is scheduled to lapse, and he’ll be positioned to argue that it must either be extended or imposed on already overburdened employers. The following year, it will be time for another extension of unemployment payments. Does anyone really think the GOP will demand that these goodies be paid for with spending cuts? And while GOP dogma holds that tax cuts are the route to good government -- at least if the beast is starved and revenue surpluses are used to pay down debt -- Obama has ensured that actual tax cuts are a pipedream. All the oxygen will be spent on whether the Bush rates should be extended. It will be the last two years all over again.

The temporary nature of lower tax rates, besides suppressing any potential revenue windfall, is transparently designed to get Obama reelected. In that respect, it is just like the delay until after 2012 of the most onerous aspects of Obamacare. The deluge isn’t scheduled to hit until a second term has been safely won.

If that happens, there will be a big difference next time around. When we inch up to the midnight that rings in 2013, the most left-wing president in American history will no longer have a reelection to worry about. The next time the Bush tax rates are set to expire and corporate taxes are poised to soar, when accelerated business expensing is coming to an end and millions of Americans are suddenly “rich” enough to be shoved into the Alternative Minimum Tax, when the death tax is scheduled to climb to 55 percent and many more trillions of dollars are ready to be heaped onto the national debt, Barack Obama will have no incentive to clip his social-justice wings. He will be free to do what he came to do.

Democrats were more than happy to impose a sunset on the Bush tax cuts. That enabled them passively to let the cuts lapse (and blame Bush), rather than launch an accountable and deeply unpopular effort to raise rates. So, sure, the Democrats and the media would have tried to blame Republicans if the tax deal had been derailed, but they’ve been blaming Republicans for our increasingly dire straits for years now. No one is buying it. It’s gotten them nothing but plunging poll numbers and a midterm rout. The Republicans could have drawn from that the confidence to say no -- no more plunging the nation deeper in debt. November proved that the GOP has a receptive audience for that message. Republicans could have made the case that the Obama Democrats owned the resulting tax increases and cratering economy. They could have squeezed Democrats for a better deal or stood content to set the table for 2012 by passing responsible laws and daring Obama to veto them.

Instead, Republicans have helped Obama take on the veneer of a centrist as he makes a big down payment on his reelection campaign, secure in the knowledge that his prospects have improved and that, if he wins, next time there will be no need to compromise. In the process, the new Republican leadership has harpooned the party’s fiscal-responsibility credentials before the reinforcements -- who won by running on fiscal responsibility -- could arrive and make their mark in the new Congress.

One more snippet from the pledge: “If our economy remains debt-driven, it will not be in a position to support a lasting economic recovery. Unfortunately, Washington Democrats refuse to listen to the American people and eliminate, restrain, or even budget for their out-of-control spending spree.”

It ain’t just Washington Democrats.

— 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

Assange & Prosecution

Hi guys. A combination of deadlines, other commitments, and -- most importantly -- the Bridgewater Bears hockey club (mites division), has prevented me from responding to Gabe's thoughtful post earlier today. He hasn't won me over, for reasons I'll explain soon -- probably over the weekend (since tomorrow is a nuttier day for me than today was).

On Matt's informative report, I'll just briefly observe that Assange has many substantive and procedural cards still to play, and how "enforceable" an extradition treaty is depends on who is trying to enforce it and how accommodating the justice ministries and the courts decide to be. We also have what are supposed to be streamlined extradition arrangements with the Brits -- our closest allies -- and that hasn't stopped them from delaying the transfer of various wanted terrorists for years. I wouldn't wait by the phone for the call that Assange is on his way. But more on all this later.

Andrew C. McCarthy

Maryland Jihadist Bombing Plot Strikingly Like Portland Jihadist Plot

Steve Emerson's Investigative Project on Terrorism has now posted the criminal complaint against Antonio Martinez, a/k/a "Muhammad Hussain," the 21-year-old American convert to Islam arrested today for attempting to bomb the Armed Forces recruiting station on Route 40 in Cantonsville, Maryland. IPT has also posted the government's press release, announcing and explaining the charges.

The case appears strikingly like the attempted bombing in Portland thwarted on Thanksgiving weekend. Martinez came to the government's attention in October because he was urging jihad on social Internet sites, such as Facebook. Based on these tips, the FBI was able to insert a confidential informant and an undercover agent. They learned that Martinez was hot to commit violent jihadist attacks, particularly targeting U.S. military personnel. Martinez told them he had chosen the recruiting station in Cantonsville as an ideal target. After Martinez repeatedly reaffirmed his plans, the government operatives convinced him to allow them to take care of pulling together the bomb components. An inert bomb was constructed, which Martinez allegedly tried to detonate today near the recruiting center, after which he was placed under arrest.

The heartening aspect of the story is that Martinez appears to have appealed to a number of area Muslims to join in his plot. They uniformly turned him down, telling him his actions were wrong and would profoundly harm Muslims. At least some of these people appear to have contacted the FBI to report the goings on.

No doubt, we will hear the entrapment defense, as we always do in these cases. Of course, a rational person cannot be enticed into committing mass-murder (the subject of my column the other day), and in this case it is alleged that Martinez both initiated the plot and exhibited mounds of predisposition to commit jihadist violence. But wholly apart from that, it'll be interesting to hear what defense counsel does with this recorded snippet of conversation between Martinez and the government's informant: The informant said he wanted to make sure Martinez was not plotting the attack because Martinez felt "like someone [is] pushing you." Martinez responded: "I came to you about this, brother."

Andrew C. McCarthy