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Ordered Liberty

I argued in Spring Fever: The Illusion of Islamic Democracy that the illusion’s signature feature is a fantasy: By holding free elections, a people is choosing freedom: joining modernity, adopting pluralism and tolerance, rejecting revolutionary violence and totalitarianism.

Today, we are yet again being inundated with tales of Palestinian woe after Hamas’s familiar barbarism has provoked an Israeli military response. It thus bears remembering that the Palestinian people chose Hamas. What ever happened to all those Democracy Project paeans to self-determination? Hamas is Palestinian self-determination. Hamas was not forced on Palestinians. Hamas did not militarily conquer Gaza. No, Hamas swept parliamentary elections freely held in the Palestinian territories in 2006 – thrashing its rival, Fatah, which is only marginally less committed to the destruction of Israel.

Hamas did not suddenly become a terrorist organization after it was elected. Hamas was elected because it was a jihadist organization. It was elected because, by its own declaration, Hamas connects Palestinians to something they find attractive: the global Islamic-supremacist movement. Palestinians widely reject Israel’s right to exist. They regard not just Gaza, Judea and Samaria but all of Israel as “occupied Palestine.” Even those Palestinians who purport to accept the “two-state solution” see it as a way-station on the march to a one-state solution in which the Jewish state eventually ceases to be. Palestinians chose Hamas precisely because Hamas was seen as more dedicated than Fatah to the achievement of that goal—not to mention, more brutally competent.

At the time of its election, Hamas was well known to be the Muslim Brotherhood’s Palestinian terrorist wing. It has been formally designated as a terrorist organization by the United States since the mid-nineties. Indeed, shortly before Palestinians endorsed Hamas at the ballot box, the U.S. Department of Justice indicted several Hamas operatives in the Holy Land Foundation case, a multi-million dollar terrorism financing conspiracy orchestrated by the Muslim Brotherhood in which several of the Brotherhood’s American affiliates—CAIR, the Islamic Society of North America, the North American Islamic Trust, among others—were proved to be complicit in the promotion of Hamas and thus designated as unindicted co-conspirators.

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The Beltway fixture that Republicans have placed in charge of the House Judiciary Committee—i.e., the committee that, by its own description, functions as “the lawyer for the House of Representatives,” and claims an “infrequent but important role in impeachment proceedings”—is ignorant when it comes to the Constitution’s impeachment standard.

Chairman Bob Goodlatte (R., Va.) took to one of the Sunday shows to demonstrate his cluelessness. After explaining that “the Constitution is very clear as to what constitutes grounds for impeachment of the president of the United States,” he proceeded to mangle that very clear standard, opining that President Obama “has not committed the kind of criminal acts that call for that.”

In point of fact, no “criminal acts” are necessary before a president may be impeached. The very clear standard the Constitution prescribes calls for impeachment upon the commission of treason, bribery, or high crimes and misdemeanors. Treason and bribery are, of course, well known criminal acts. As I illustrate in Faithless Execution, “high crimes and misdemeanors” is a term of art borrowed from British law. It does not refer—at least, not necessarily—to criminal acts that violate the penal code. Instead, it captures what Hamilton, in Federalist No. 65, described as:

the misconduct of public men, or in other words from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.

The concept conveyed by “high crimes and misdemeanors” is executive maladministration, whether out of imperiousness, corruption or incompetence. In that sense, it is more redolent of military justice offenses than criminal acts that violate the penal code. Like a soldier, one who owes fiduciary responsibility is liable for acts that would not be considered criminal wrongs if committed by an ordinary civilian. Dereliction of duty, conduct unbecoming, profound deceitfulness, and the failure to honor an oath, to take a few obvious examples, would qualify as high crimes and misdemeanors even if they might not be indictable offenses if committed by one in whom high public trust was not reposed.

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Boehner’s Feckless Plan to Sue Obama

June 25th, 2014 - 7:41 am

So we finally have the Beltway GOP plan to confront Obama administration lawlessness. Make that, to have someone else confront Obama administration lawlessness. Is there a contest to name the Republican strategy? I’d call it: “Please Don’t Make Me Use My Powers … The Obamedia Might Say Mean Things About Me.”

Mr. Obama’s sweeping lawlessness, a comprehensive assault on the separation of powers, is the subject of my new book, Faithless Execution: Building the Political Case for Obama’s Impeachment. The administration’s goal is to centralize governmental power in the executive branch. That is exactly what the separation of powers is designed to avoid, the Framers having grasped that the accumulation of all power in one set of hands had always been, and will always be, the road to tyranny.

Roll Call reports that House Speaker John Boehner (R., OH) will respond to this challenge to our constitutional framework by … wait for it … filing a lawsuit. The apparent aim of this theater is to persuade a judge to pronounce what is already patent: the president is flouting congressional statutes.

Speaker Boehner’s proposed suit is nearly as wayward as President Obama’s violation of his solemn oath to execute the laws faithfully. Under our system, in order to avoid having major public policy questions decided by the governmental branch that is not politically accountable to voters, the judiciary is limited to resolving concrete controversies — cases in which the party bringing the suit has actually been injured by a violation of law. Courts are thus prohibited from issuing advisory opinions: pronouncements that some course of conduct is or would be illegal.

Yet, that appears to be exactly what the speaker will ask them to do. Indeed Boehner’s spokesman, Michael Steel, reminded Roll Call that the House has already passed a bill that would expedite court consideration of House resolutions enabling lawsuits that challenge executive overreach. “The House has passed legislation to address this, but it has gone nowhere in the Democratic-controlled Senate,” Mr. Steel explained, “so we are examining other options.”

Obviously, Republican leadership does not see its “other options” as including the exercise of powers the Constitution gives Congress to stop executive lawlessness in its tracks, namely, cutting off the executive branch’s funding and impeaching executive branch officials who violate the law, carry out lawless policy, mislead lawmakers, stonewall investigations, and frustrate Congress’s constitutional oversight function. In essence, Boehner & Co. are fecklessly asking the courts to do their heavy lifting for them — a classic case of assuming the pose of meaningful action while in reality doing nothing. And tune in next week when Republicans get back to complaining about how activist judges are making the law rather than interpreting it.

Republican lawmakers will plead with the courts to do something about Obama’s imperiousness because there is political risk in using their own authority. If they employ these game-ending powers, the president will use the bully pulpit to bully them and his media loyalists will echo the demagoguery from here to Election Day.

Clearly, Republicans doubt their competence to win this debate, to make presidential lawlessness the defining issue of our political discourse. They prefer to cruise quietly into November, and hope — as they did in 2012 — that the unpopularity of Obama’s agenda will be enough to carry them through the election. But they also know their agitated base is demanding that they do something to stop or slow the dizzying pace of Obama’s “Change,” which in just the last couple of weeks has given us: the VA scandal, ruinous EPA regulations, the release of top Taliban terrorists to return to the jihad, an invited invasion of thousands of illegal aliens across the Southern border, and revelations that executive officials destroyed key evidence in the IRS scandal.

So the GOP will substitute futile litigation for purposeful legislation. This, of course, is the same strategy that has saddled us with Obamacare: Take no real legislative action — in fact, continue funding the problem — and pray that the Supreme Court will be the grown-ups willing to strike down the law and bear the Obamedia wrath. That worked out well, no?

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I’m proud to be chairing a volunteer organization called the Benghazi Accountability Commission. We are going to be holding a conference at the Heritage Foundation in Washington this afternoon, titled “Benghazi: The Difference It Makes Is Accountability.” It’s going to feature some speakers with tremendous insights into the relevant issues about the Benghazi Massacre on September 11, 2012, the security failures that led to it, the events of that night, the Obama administration’s “Blame the Video” fraud in the aftermath, the difficulties Congress and the public have faced in getting answers regarding what happened, and the challenges that will face Chairman Trey Gowdy’s House Select Committee that is commencing a full investigation.

The conference will take place at Heritage’s Allison Auditorium, and it can also be watched online. Details here.

Notwithstanding that there are still thousands of American troops in harm’s way in Afghanistan and that it is a ripe dead certainty the five jihadist commanders with which President Obama has just replenished the Taliban will go back to the anti-American jihad—indeed, at least one of them is already bragging that he will do so—former Secretary of State Hillary Clinton told NBC news Wednesday that the Taliban Five were not really a threat to the United States.

Mrs. Clinton, who also did not see much of a threat from the anti-American jihadists in Benghazi, the Muslim Brotherhood in Egypt, and the al Qaeda-affiliated Boko Haram terrorists in Nigeria during her tenure at the State Department, complained that it was critics of the administration who “were kind of missing the bigger picture here.” You see, “these five guys are not a threat to the United States. They are a threat to the safety and security of Afghanistan and Pakistan.”

It was during the Bill Clinton administration that the Taliban was established, took over Afghanistan, and gave safe haven to al Qaeda. That was the arrangement that enabled bin Laden’s network to have a secure headquarters, expansive training camps, and the capacity to carry out attacks on American targets—including the bombing of American embassies in Kenya and Tanzania, the bombing of the U.S.S. Cole in Yemen, and ultimately the 9/11 atrocities. As Tom Joscelyn has demonstrated, the five jihadist commanders Mrs. Clinton does not see as a threat to American national security were key players in cementing the alliance between the Taliban and al Qaeda.

Adopting Mrs. Clinton’s own reasoning, I don’t see the, shall we say, remarkable judgment she exhibited at the State Department as a threat to her presidential ambitions, not at all.

***

Related at The Grid: Hillary: I Might Not Run for President, and Here’s Why

The first few days of rolling out my new book, Faithless Execution, have been exhilarating, with few things more gratifying and humbling than the wonderful review by one of my very favorites, PJ Media’s own Roger Simon.

It has been uplifting to see how many people really are alarmed—rather than indifferent, as I worried—to the problem of rampant presidential lawlessness. People really do grasp that the separation of powers, which is so threatened by President Obama’s usurpation of the powers of the states and other federal departments, really is the key to protecting our liberties. Too much accumulation of power in one government official’s hand—particularly, the Framers observed, the joining of the legislative and executive power in a single department or person—is the road to tyranny.

When people grasp that, they similarly grasp that presidential lawlessness is not a conservative versus liberal issue, nor Republican versus Democrat. It is a question of whether we still aspire to be a republic under the rule of law instead of subjects under presidential whim. If they are not knocked down, the precedents that President Obama is setting for imperial executive power will be available for exploitation by every future president, regardless or party or ideological orientation. That ought to frighten all Americans, not just opponents of the current president’s policies.

I make a sustained attempt in the book to explain that impeachment—the ultimate constitutional response to presidential lawlessness—is a political remedy, not a legal one. You can have a thousand impeachable offenses, but if there is not a strong public will that the president be removed, impeachment is a nonstarter. The political case for removal is the one that is uphill. Establishing the legal case for impeachment—i.e., demonstrating that high crimes and misdemeanors have been committed—is the easy part.

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My new book, Faithless Execution, is principally about presidential lawlessness. In addressing that topic, I make the point that it is not lawless for a president to refuse to execute a law as to which he has a good faith constitutional objection.

The Framers, after all, were not just worried about executive overreach; they were at least equally concerned about what Hamilton referred to as “The propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments.” This is relevant to the ongoing controversy about whether, in carrying out his unconscionable swap of five senior Taliban and Haqqani network terrorists, the president acted lawlessly.

A congressional statute—the National Defense Authorization Act—presumes to impose a requirement of 30-days’ notice to lawmakers before the president may transfer enemy combatant detainees out of Guantanamo Bay. There is no question that President Obama willfully ignored this statute—the administration admits as much. But was he obliged to comply with it?

As I’ve been contending, there is a very colorable argument—I would say, a convincing argument—that the statute is unconstitutional. The commander-in-chief in wartime has near-plenary power over the disposition of enemy combatants, and supremacy in the conduct of foreign affairs. Congress may properly use its power of the purse to deny the president funds to transfer prisoners—particularly to transfer them into the United States. But it may not act as super-executive by micromanaging how the president carries out his prerogatives. We may find the president’s decisions in this regard to be reprehensible—I certainly do. But that does not make them unconstitutional … what is unconstitutional is a statute that purports to trim the president’s constitutional powers.

Is that the end of the matter? Not by a long shot. As I’ve also contended, the president’s failure to comply with a dubious statute is a mere footnote to his truly egregious offense: replenishing enemy forces at a time when the enemy is still conducting offensive terrorist operations against our armed forces. It would be difficult to fathom a more outrageous dereliction of duty by the commander-in-chief.

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Faithless Execution in the News

June 1st, 2014 - 11:51 am

As my friend and publisher Roger Kimball has been good enough to mention, this week Encounter will  release my new book, Faithless Execution. There are few related items about it in the news that I hope you’ll find interesting.

In the Sunday edition of the New York Post, I have an opinion column about the book. In it, I discuss the origins of impeachment in the Constitution. As a legal matter, it is straightforward to prove high crimes and misdemeanors; but impeachment is primarily a political remedy, not a legal one–which means you can have a thousand provable articles of impeachment, but if the public will to remove the president from power is lacking, impeachment is illusory. That’s a big problem if the president is rampantly violating the law: if the Constitution’s three tools for combating presidential lawlessness–elections, Congress’s power of the purse, and Congress’s impeachment power–are not used, the president knows he can ignore the law with impunity. We are then no longer a nation of laws but subjects of executive whim. The Post column is here.

I also had the opportunity a few days back to discuss the book with my friend Ginni Thomas for her “Leaders” series at The Daily Caller. The first segments, which relate to presidential lawlessness in general and the Benghazi scandal in particular, have been posted. You can find them here and here.

Finally, Ruth King has written a very generous review of Faithless Execution at Family Security Matters. It is here.

The book is officially released on Tuesday, but it is already available and I’ll be out and about discussing it over the next few days. Stay tuned.

Hillary Clinton’s Benghazi Dodge

May 31st, 2014 - 8:26 am

Is Hillary Clinton a charlatan or just the crappiest lawyer in Washington? As the Obama Left likes to say, that’s a false choice. There’s no reason she can’t be both.

The question arises thanks to yet another excellent report on the Obama administration’s Benghazi fraud by the Weekly Standard’s Steve Hayes. The Benghazi fraud is a prominent subject of my new book, Faithless Execution, which traces the debacle from the president’s unauthorized, unprovoked, and ultimately disastrous instigation of a war against the Qaddafi regime; through his (and Secretary Clinton’s) recklessly irresponsible failure to provide security for the American officials they mysteriously stationed in Benghazi (a jihadist hotbed that is one of the world’s most dangerous places for Americans); through the president’s shocking failure to attempt to rescue Americans under siege on the night of September 11, 2012; and finally through Mr. Obama’s carefully orchestrated deception, in which the administration tried to hoodwink the country into blaming the murders of our ambassador and three other Americans on a video rather than on his calamitous policy of empowering Islamic supremacists.

Steve’s latest report homes in on Mrs. Clinton’s infamous “What difference, at this point, does it make” caterwaul, emitted during tense questioning by Senator Ron Johnson (R., WI) during a hearing on Benghazi.

Apparently, the former secretary of state struggles to rationalize this appalling testimony in her forthcoming memoir, Hard Choices. As notorious for taking no responsibility as for committing blunders over which accountability becomes an issue, Mrs. Clinton complains that her “What difference” yowl has been distorted. It was not, she insists, an exhibition of callous indifference; it was, in Steve’s description, “an attempt to redirect the questioning from its focus on the hours before the attacks to preventing similar attacks in the future.” Or, as Mrs. Clinton reportedly writes:

My point was simple: If someone breaks into your home and takes your family hostage, how much time are you going to spend focused on how the intruder spent his day as opposed to how best to rescue your loved ones and then prevent it from happening again?

As Steve quite rightly observes, this is nonsense. By the time of Mrs. Clinton’s testimony, the Benghazi Massacre—and, indeed, even the Obama administration’s fraudulent “The Video Did It” cover-up of the cause of the Benghazi Massacre—was several months old. We were long, long past the intruder-in-the-home phase. We were in the accountability phase—the phase of: let’s now establish what actually happened and why, so we can then figure out how to prevent a recurrence.

Any competent lawyer knows that during the investigative and trial stages that follow a public debacle—to say nothing of an act of war in which American officials were derelict in responding to a murderous terrorist attack—the obligation of the witnesses is not to redirect the questions. It is to answer the questions. Any competent trial judge would have sustained an objection to the secretary of state’s evasive answer, striking it from the record as non-responsive.

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Anybody can make a mistake, and that certainly appears to be what led to the Obama White House’s exposure of the top CIA official in Afghanistan this weekend. Unfortunately, as Roger Kimball details, this is not an isolated incident. In year six of the Obama administration, it speaks volumes about not just incompetence but immaturity and the skewed priorities that come with it.

Exactly because anyone can make a mistake, large organizations — presidential administrations included — build layers of vetting into the disclosure of information to the public. In this instance, because the commander-in-chief made a surprise visit to Afghanistan over Memorial Day weekend, the White House put out a list of government officials the president met with. Somehow, that list included the intelligence official’s name with the designation “chief of station.”

This error is so basic that it grabbed the attention of Scott Wilson of the Washington Post, the “pool reporter” who received the list. Regrettably, he’d already sent out the pool report by the time he noticed the station chief designation and thought to ask whether the White House press office had really intended to put out that information.

That’s how the administration learned about what it had done — from a reporter. Think about that. In the composition and disclosure of this list, many people on both the military end and White House end have to have known that such information should never be circulated. That’s not only true as a matter of principle and common sense; it’s empirically true: Fox News reports that this administration has already had to remove a CIA station chief in Pakistan (in 2010) because of an exposure incident. It is astonishing that such an obvious error was not caught.

It is, moreover, tough to be sympathetic because Democrats never are when the shoe is on the other foot. When Valerie Plame was outed as a CIA operative — apparently inadvertently, by senior State Department official Richard Armitage — Democrats turned the error into a major controversy that damaged the Bush administration. Ms. Plame had a desk job at Langley and there are no indications that her exposure caused much harm. (There were reports at the time suggesting that she had been exposed long before through a bureaucratic screw-up.) By contrast, the official just exposed by the White House is the current top CIA official in a war zone that presents tremendous challenges to the United States, one where intelligence gathering is at a premium. The gravity of this error thus appears far more serious than the one over which Democrats spent years demanding a Bush administration scalp.

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