Ordered Liberty

Ordered Liberty

With all the attention Obama’s disastrous Iran nuclear deal is getting, it is easy to overlook yet another of the president’s many foreign policy success stories: the Taliban.

It is under new leadership, and has strengthened its ties with the decidedly un-“decimated” al-Qaeda terror network.

Recall that just as Obama “ended” the war in Iraq by ceding our hard-won gains to Iran and the Islamic State (the former a longtime al-Qaeda ally, the latter the spawn of al-Qaeda in Iraq), the president is similarly “ending” the war in Afghanistan by consigning the country to the resurgent Taliban.

Toward that end, even though the Taliban continued to conduct and support jihadist attacks on American troops, the president appallingly traded five of its commanders in exchange for Sgt. Bowe Bergdahl, a deserter.

Moreover, besides its own negotiations with the Taliban — the chief enabler of al-Qaeda’s 9/11 attacks that killed nearly 3,000 Americans – the Obama administration has enthusiastically supported “reconciliation” talks between the Taliban and the Afghan government.

The suspension of disbelief we are to indulge is that, while Kabul strikes a settlement with the Taliban, the remaining U.S. forces can exit after finishing up the training of Afghan security forces, thus enabling us to “end” the war by leaving behind a stable Afghanistan and an al-Qaeda that has been “decimated” and put “on the path to defeat.”

If you believe that one, I’ve got a peaceful nuclear energy site in Parchin you might be interested in.

In fact, the Taliban continue to wage their jihad against the Afghan government they have every intention of retaking once the last U.S. troops have pulled out, if not before. The deadly attack they executed in June against the parliament in Kabul is only one of the most recent examples.

And significantly, the Taliban is continuing its campaign under new leadership with intimate ties to al-Qaeda.

As Tom Joscelyn and Bill Roggio have been reporting at the Long War Journal, the Taliban has finally confirmed that longtime leader Mullah Mohammad Omar is dead. There remains mystery about when Omar’s demise took place — it may have been over two years ago, though some insiders claim it was more recent. In any event, the group has named a new leader: Mullah Akhtar Mohammad Mansour.

Mansour was Omar’s deputy while the latter gave sanctuary to al-Qaeda in the years prior to 9/11 — years during which al-Qaeda bombed the United States embassies in Eastern Africa and the U.S.S. Cole as it docked in Yemen.

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In a nearly unnoticed part of his Senate testimony defending President Obama’s appalling Iran deal, Secretary of State John Kerry once again claimed that the mullah di tutti mulli, Ayatollah Ali Khamenei, had issued a fatwa – a sharia law edict – against Iran’s possession of nuclear weapons.

Fortunately, the Foreign Policy Initiative’s Tzvi Kahn noticed, and observes at National Review that Kerry, without a hint of irony, suggested that Americans should trust the purported fatwa while he was testifying that the Iran deal is based on verification, not trust – a laughable assertion in its own right given that there are no snap inspections, Americans are banned from inspection teams, Iran is keeping facilities of its choosing off limits from IAEA inspectors, and (as the Center for Security Policy’s Fred Fleitz reports) IAEA inspectors will be relying on Iran itself to provide site samples for testing.

Kerry told the Senate that Khamenei believes he, not the United States and its negotiating partners, is responsible for stopping any Iranian production of nuclear weapons “because he issued a fatwa, and he has declared the policy of their country is not to do it.”

As I pointed out here at Ordered Liberty back in March, however, there is no Khamenei fatwa against nukes. Despite the fact that Kerry continues to tout it – as has Obama and former Secretary of State Hillary Clinton – the fatwa is a hoax.

To repeat from my post of four months ago (with some new additional material in italics):

The invaluable Middle East Media Research Institute (MEMRI) has done extensive research into compilations of Khamenei’s published fatwas. (See here and here, and citations therein.) No such fatwa has ever been published.

In a sharia state, particularly the one in Iran that is actually run by the country’s top sharia jurists, fatwas are important statements of governing law, like statutes are in the U.S. Yet despite repeated requests, Iran has never produced the purported anti-nuclear weapons fatwa from Khamenei.

Indeed, as MEMRI elaborates, Khamenei was directly asked about the purported fatwa in a 2012 Facebook exchange: “[I]s it also forbidden to obtain nuclear weapons, as per your ruling that their use is prohibited?”

He refused to answer the question:

“Your question has no jurisprudential aspect. When it has a jurisprudent [sic] position, then it will be possible to answer it.”

The notion that Khamenei actually believes nuclear weapons violate Islamic law and would issue a credible fatwa to that effect should be seen as absurd on its face. Put aside that Pakistan, which incorporates sharia in its law, has long had nuclear weapons. For over two decades, al-Qaeda has been trying to acquire nuclear weapons and has enjoyed essential support from the regime in Tehran. [ACM: See, e.g., original Justice Department indictment against Osama bin Laden, explaining that al Qaeda forged an alliance with Iran in the early 1990s and that al Qaeda began trying “to obtain nuclear weapons components in 1993.”]

Oil-rich Iran has no need to develop nuclear technology for peaceful purposes. It has explicitly threatened to wipe Israel off the map. It has been busily been developing weapons systems capable of delivering nuclear bombs in conjunction with its uranium enrichment. It could not be more obvious that Khamenei’s regime, far from rejecting nuclear weapons as anti-Islamic, seeks to acquire them in order to promote the imposition of its Islamic-supremacist ideology. [ACM: See Congressional Research Service Report, “Iran-North Korea-Syria Ballistic Missile and Nuclear Cooperation” (May 11, 2015): “The U.S. intelligence community assesses that Iran has the largest number of ballistic missiles in the Middle East. It also notes that Iran’s ballistic missiles are inherently capable of delivering weapons of mass destruction and that Iran’s progress on speace launch vehicles improves Tehran’s ability to develop longer-range missiles, including an intercontinental ballistic missile.”]

Moreover, as MEMRI further documents, there is a published fatwa on the subject of nuclear weapons from credible Shiite sharia scholars. In 2006, it was reported that jurists in Qom had issued a fatwa explicitly stating that “sharia does not forbid the use of nuclear weapons.”

Although the date seems to shift, Iranian officials began claiming in about 2005 that Khamenei had promulgated an anti-nuke fatwa. The disingenuous suggestion was made in connection with Iran’s shrewd conclusion that the best route to developing nuclear weapons internally was to pretend that its nuclear program was peaceful.

Obama administration officials, who are desperate to strike a deal with Iran and to convince themselves that Iran might become an American ally in the Middle East, understand that the mullahs will never allow the kind of rigorous inspection system that would make an agreement trustworthy. They are thus emphasizing the phantom fatwa as a rationale for making an unacceptable deal: You are supposed to say to yourself, “We needn’t worry about the inability to verify that the Iranians are not constructing nukes because the Islamic ruler has solemnly forbidden it.”

But even if you were inclined to such self-delusion, the fact is: Khamenei has not forbidden nuclear weapons.

As Breitbart’s Joel Pollak has observed, Kenneth Pollack, a serious national security expert who is particularly influential among Democrats, discussed the purported Khamenei fatwa in his book Unthinkable: Iran, the Bomb, and American Strategy. Pollack notes not only that the fatwa has never been formally issued but also that Iran disregards fatwas when they prove inconvenient to perceived national interests. Thus did the founder of the Iranian jihadist state, Ayatollah Khomeini, ignore his own fatwa against weapons of mass destruction during the long war with Iraq in the 1980s.

Obviously, as I concluded in March, “it would be lunacy, in a matter crucial to American national security, to rely on a fatwa from the head of a jihadist-terror state even if such a fatwa actually existed.” Indeed, if we’re going to start relying on decrees from the top mullah, shouldn’t we then take note that he has pronounced, again and again, that Israel must be destroyed — as he put it in a tweet one year ago: “This barbaric, wolflike & infanticidal regime of #Israel which spares no crime has no cure but to be annihilated.” Nevertheless, if Kerry and the administration are going to keep spouting this nonsense, why does Congress not demand that the State Department and the White House produce the purported Khamenei fatwa? Or is the plan to have the IAEA trust Iran to produce a sample of the fatwa?

The struggle against infanticide was lost when the language battle was lost. What we call things determines how we think about them. How we think controls what we do … and what we tolerate.

“Infanticide” called it what it was: a homicide, a killing of a child who was no less possessed of human dignity for not yet having been born.

“Abortion” was a gentler term — still pejorative because the culture back then remained repulsed by infanticide; yet pregnant, as it were, with ambiguity about exactly what was being aborted — the child’s life, or the mother’s pregnancy? And with the abortionist generally being a doctor, “abortion” connoted that “pregnancy” was not about a life to be nourished but a medical condition to be treated.

A “medical condition” is suggestive of illness, not life. And if we were now just talking about how to treat a medical condition, not killing a child, then abortion became just one option on the menu of “choice.” And whose choice? Not the child whose life is ended. The object of these language games is to vanish the child from our consciousness.

No, the choice would belong to the mother, whose designation was adjusted first to “woman” — to crop the mother-child bond out of our imagery, to tap into a hedonism masquerading as a politics of liberation.

Then, finally, the “woman” became the “patient.”

Once infanticide has been devalued into a routine medical “choice” for the “patient” on the order of whether to have the doctor remove that wart on your chin, then the child has been dehumanized into a collection of tissue. That is the logical reductio ad pravitam.

As Planned Parenthood’s Deborah Nucatola – Doctor Nucatola — will tell you between sips of cabernet, a collection of tissue can be a valuable commodity, especially if the “calvarium” is still “intact.”

Naturally, we are shocked by the video, secretly recorded by the Center for Medical Progress, that depicts Nucatola so casually illustrating that the grisly business of infanticide has a sordid commercial side. The video illustrates that Planned Parenthood is harvesting organs and other body parts from the unborn children the media takes pains to call “fetal tissue.” It is not merely (merely?) discarding the inconveniently unavoidable remains of these “surgical procedures”; it is planning, with malice aforethought, how to execute the killing while maximizing the commercial value — oh, I’m sorry, the “medical research” value — of the corpse.

As the good doctor put it:

You’re just kind of cognizant of where you put your graspers, you try to intentionally go above and below the thorax so that, you know — we’ve been very good at getting heart, lung, liver, because we now that — so I’m not gonna crush that part, I’m gonna basically crush below, I’m gonna crush above, and I’m gonna see if I can get it all intact.

Harvesting body parts, technically, is a federal crime. So is homicide by partial birth abortion. The video suggests that Planned Parenthood may be performing this “surgical procedure,” perhaps routinely. Doctor Nucatola again:

With the calvarium [ACM: the child’s head], in general, some people will actually try to change the presentation so that it’s not vertex. [ACM: i.e., move the delivery position of the baby so that it is not head-first but feet first -- the “breech” position.] Because when it’s vertex presentation, you never have enough dilation at the beginning of the case, unless you have a real, huge amount of dilation to deliver an intact calvarium. So if you do it starting from the breech presentation, there’s dilation that happens as the case goes on, and often, the last step, you can evacuate an intact calvarium at the end.

If the baby were still alive while being partially delivered and then killed, that would be a violation of the “partial birth abortion” law. Has that been happening? It would be a question that cries out for investigation … if this were the sort of thing we were inclined to investigate.

But it’s not. If you read the partial birth abortion statute (Section 1531 of the federal penal code), you’ll see why. Notice the penalty: two years’ imprisonment.

That is not how our law usually treats the killing of human beings, or even the non-lethal infliction of pain, or the mere causing of anxiety. Murder is often punished by life imprisonment, or even the death penalty. Maiming will get you 30 years, an assault 20. An armed bank robbery is punishable by 25 years in the slammer even if no one is actually harmed.

But partial birth abortion is punishable by two years in jail — and that’s the maximum. Why is that?

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From what he bizarrely frames as a conservative perspective, Joseph Curl has penned a Washington Times op-ed ripping the purportedly out-of-touch reaction by Republican presidential candidates to the Supreme Court’s same-sex marriage (SSM) ruling.

Mr. Curl takes Ted Cruz, Carly Fiorina, Bobby Jindal, Mike Huckabee, and Scott Walker to task over their harsh criticism of the ruling in Obergefell v. Hodges. A bare 5-4 majority of the justices compelled all fifty states to issue marriage licenses to same-sex couples. Thus have five unelected lawyers wrested control over the definition of marriage from the people of the states, to whom the Constitution commits it.

Curl says the candidates have embarrassed themselves. The only embarrassment, besides the decision itself, is Curl’s defense of it.

In lauding Obergefell, he equates state refusals to license SSM with anti-miscegenation laws. It is a frivolous analogy, yet one Curl sees as a showstopper: “First, let’s do one simple exercise: Substitute ‘interracial’ for ‘same-sex.’ Argument over.”

As Justice Clarence Thomas put it in his dissent, “The suggestion … that anti-miscegenation laws are akin to laws defining marriage as between one man and one woman is both offensive and inaccurate.” Prohibitions on interracial marriage, Justice Thomas elaborated, trace directly to the “sordid history” of slavery and the post-Civil War white supremacy system. In stark contrast, the “traditional definition of marriage,” which has prevailed in every society that has recognized marriage throughout human history,

arose not out of a desire to shore up an invidious institution like slavery, but out of a desire to increase the likelihood that children will be born and raised in stable and enduring family units by both the mothers and the fathers who brought them into this world. [Citations and internal quotations omitted.]

In his dissent, Chief Justice John Roberts similarly explained that the repeal of racial restrictions on marriage “did not … work any transformation in the core structure of marriage as the union between a man and a woman.” SSM, to the contrary, radically alters the nature of the institution and the purpose for which it was established.

Curl’s supposed argument-ender never gets out of the starting block.

The columnist also blithely dismisses the notion that First Amendment religious freedom is under assault. As if the rest of us are too clueless to discern what he so clearly sees, Curl proclaims that the Court’s ruling has nothing to do with “marriage in a church – in the eyes of God.” “Religions,” he maintains, “will decide who they will marry[.]… The ruling means only that gays can get a license from the government” and receive other legal benefits (Social Security benefits, joint tax filing, hospital visitation, and adoption rights) on the same basis as traditional married couples.

Really? Even as it urged the Court to impose SSM on the states, the Obama administration acknowledged that such a ruling could have serious repercussions. At oral argument, in answer to a question posed by Justice Samuel Alito, the president’s solicitor general, Donald Verrilli, candidly conceded that the tax-exempt status of religious organizations could be denied if they fail to embrace SSM.

It is easy to see why. In the Weekly Standard, Adam White points out that Supreme Court precedent already holds that religious schools may forfeit their tax-exempt status for discrimination policies that run afoul of the Court’s construction of the Fourteenth Amendment. The Fourteenth Amendment, of course, is the principal source of the Court’s newly manufactured right to SSM. Thus Verrilli’s shot across the bow was logical and predictable.

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This image provided by the Texas Department of Motor Vehicles shows the design of a proposed Sons of Confederate Veterans license plate. The Supreme Court has upheld Texas’ refusal to issue a license plate bearing the Confederate battle flag, rejecting a free-speech challenge. The court said Thursday that Texas can limit the content of license plates because they are state property and not the equivalent of a bumper sticker. (AP photo and caption.)

The Supreme Court today accelerated the dangerous erosion of First Amendment protection, making way for government censorship of expression that does not conform to its preferences. In Walker v. Sons of Confederate Veterans, the sharply divided Court ruled that the state of Texas could constitutionally engage in viewpoint discrimination by prohibiting a specialty license plate that depicted the Confederate flag.

You’re thinking, “What’s the harm?” After all, that flag is deemed by many – perhaps most (though I’ve done no research on the matter) – to be an offensive symbol of racism and slavery. Even if everyone doesn’t see it that way, enough do, and passionately so; thus, why should the state not ban the flag’s appearance on property that is issued by the government itself?

This, indeed, was the rationale of the five-justice majority — an interesting mix of the Court’s four consistent liberals (Justice Stephen Breyer, who wrote the opinion, and Justices Ruth Ginsburg, Sonia Sotomayor and Elena Kagan) with one of its staunchest conservatives, Justice Clarence Thomas. Reasoning that license plates — specialty or not — are “government speech,” Justice Breyer concluded that the state has the power, unregulated by the First Amendment, to express its views on matters of policy.

But is it really “government speech”? In dissent, Justice Samuel Alito (joined by Chief Justice John Roberts and Justices Antonin Scalia and Anthony Kennedy) pointed out that the state has licensed some 350 specialty plates, some of which cannot conceivably be statements of government policy (e.g., “Rather Be Golfing”; “NASCAR – 24 Jeff Gordon”; “Young Lawyers”; “Get It Sold With Remax”; and “University of Oklahoma” – a major football rival of Texas schools – as well as several other out-of-state institutions). In fact, the dissent pointed out, the state has also authorized a plate honoring “Buffalo Soldiers,” African American soldiers originally of the Army’s post-Civil War 20th Cavalry Regiment. While that outfit would be broadly popular no doubt, the plate offends at least some Native Americans, who protested that they felt the same way about the cavalry as African Americans did about the Confederacy.

The point, of course, is that although the state is the issuer of the license plates (which it requires all automobiles registered in Texas to display), the speech expressed on the specialty plates is associated with the private parties who propose, select, and exhibit the plates. Therefore, it is not reasonably understood as government speech; it is private speech that the government is regulating – and government has no business using its regulatory authority to favor or disfavor competing points of view.

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The indictment of former House Speaker Dennis Hastert provides a good opportunity to weigh in on a subject that is especially apt for a blog called “Ordered Liberty”: over-criminalization. It is one that has gotten a good deal of attention on the right and the left — even bringing Rand Paul and Al Sharpton together, notwithstanding their disagreements on most everything else.

The ever-more sweeping regulation of human activity and concomitant diminution of liberty are elements of the “democratic despotism” problem foreseen by Alexis de Tocqueville, as Roger Kimball eloquently observes (see, e.g., here).

Students of the criminal law learn early on the difference between malum in se and malum prohibitum — i.e., conduct that is wrong in and of itself (e.g., murder, theft) versus conduct that is considered wrong only because we have chosen to legislate against it. The structuring of cash transactions is an excellent example of the latter.

There is nothing inherently wrong with dealing in cash or, to get to the specifics of Hastert’s case, withdrawing one’s own money from a financial institution in order to spend it as one chooses. Even if one desires to engage in conduct that is condemnable (whether or not criminal), the act of withdrawing money for purposes of carrying out the condemnable act is not itself inherently wrong.

Such conduct gets swept into the net of criminality because it is closely related to actual wrongs. One of the biggest concerns plaguing drug traffickers and racketeers is unexplained wealth. Crime is usually a cash business because paper trails get crooks convicted. They are a prosecutor’s dream because (a) they are irrefutable (once investigators figure out a money laundering scheme, it’s a cinch to show that cash moved from points A to B to C and so on), and (b) the paper usually comes in the form of reliable financial records (prosecutors don’t need to rely on the testimony of accomplices of dubious credibility). So “structuring” is a crime created by statute in order to force racketeers and drug traffickers to create a paper trail.

The way it works is: If a person conducts a cash transaction involving more than $10,000 with a financial institution, the bank is required to fill out a “currency transaction report” (CTR) providing information about the owner of the funds. So let’s say I’m a cocaine distributor and I need $50,000 to pay my supplier for the next shipment. I don’t want a paper trail showing I withdrew $50K – it might be used later to prove my connection to the drug transfer. To avoid this, I might go to six different banks, or go to the same bank six different times, and each time withdraw a little over $8K until I had amassed the $50K.

The structuring law imposes the obligation to complete the CTR on the bank. (The person caught structuring is convicted for causing the bank to fail to file a CTR.) This gives the bank the incentive to police structuring. Banks do this, among other ways, by compiling “suspicious transaction reports.” In effect, this lowers the $10K threshold: the bank will alert law-enforcement regarding cash transactions involving less that $10K if it suspects the withdrawals (or deposits) might be part of a bigger transaction the customer is attempting to conceal.

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Senator Lindsey Graham says really dumb things from time to time, but when I read this profile of the apparently soon-to-be GOP presidential candidate by the Federalist’s Ben Domenech, I assumed that he must have been misquoted. Sure enough, though, Mr. Domenech provides a supporting link to a Washington Post news account which reports that, this past weekend, Senator Graham asserted:

If I’m president of the United States and you’re thinking about joining al-Qaeda or ISIL [Islamic State], I’m not gonna call a judge. I’m gonna call a drone and we will kill you.

Even for those of us who recognize the government’s necessary national security powers, the question of killing Americans is an excruciatingly difficult one. It is not fit for bombast.

Our law does provide that an American citizen who joins the enemy may be treated like the enemy: lethal force may be used against him and he can be detained as an enemy combatant under the laws of war. There is an obvious reason for this: if it were wartime, and if enemy forces were conducting or about to conduct forcible operations against our troops or our citizens, we would have to be able to quell the threat with whatever force was necessary. The government clearly could not be precluded from attacking the enemy in that situation by the happenstance that one or more of its operatives was an American citizen – that would kill the innocent to protect the guilty.

That, however, is the extreme case. Given that the Constitution is not a suicide pact, our national security law must be able to respond to extreme cases.

In the “normal” case – bearing in mind that it is unusual, but far from unprecedented for Americans to join enemy forces – Americans are only targeted with lethal force if they are colluding with the enemy outside U.S. territory. Moreover, such targeting should happen only under circumstances where killing, rather than capturing, is the better military option. That is why, despite the fact that our forces have been conducting combat operations outside the U.S. for nearly fourteen years in the war against al Qaeda, only a handful of Americans have been killed or captured and detained as enemy combatants overseas.

Inside the territorial United States, we do not even target suspected alien al Qaeda operatives with lethal force, much less American citizens. Again, that is not to say the government could not do so if (a) jihadists were carrying out or about to carry out an attack on our soil, and (b) the application of lethal force was the most sensible way to stop them. But of course, even police are permitted to use lethal force in life-or-death situations, and national security forces would have greater latitude in wartime while conducting combat operations against the enemy – especially if those operations had been authorized by Congress.

Still, on American soil, our law-enforcement and national security agents do not kill when capture is a plausible option. And while there is judicial authority for the proposition that a captured American could be detained as enemy combatant and subjected to a military commission trial, the legislation on the books for current conflict does not permit American citizens to be tried by military commissions. While they could be detained as enemy combatants, they would be permitted to challenge their military detention in court, and they would eventually have to be tried, if at all, by a civilian court with all the applicable due process protections.

No one, it should be emphasized, may legally be detained in the United States, let alone killed by government use of force, for “thinking about joining” a terrorist organization – no American and no non-American.

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At best, it is amateur hour.

At worst, the rash decision by Marilyn Mosby, the Maryland state’s attorney for Baltimore City, to bring an array of internally inconsistent charges, including murder, against a half dozen police officers in connection with the death of Freddie Gray is a frightening display of state complicity in mob justice.

Three of the arrested officers, including the one facing the most severe charge of second-degree murder, are African-American. We’d better hope that black cops’ lives matter.

I was attending a conference on Friday. It was thus my good fortune, when asked for a first impression of the charges, not to have heard Ms. Mosby’s embarrassing speech announcing them.

The chief prosecutor, in what can only be described as a gift to defense lawyers, proclaimed that she’d brought the charges to show not only “the people of Baltimore” but also “the demonstrators across America” that “I heard your call for ‘no justice, no peace.’” When I say this was embarrassing, I am not just making a stylistic critique that prosecutors should not speak like community organizers. It is a professional assessment.

Competent prosecutors charge crimes only when there is evidence sufficient to prove that specific laws have been broken. A government lawyer who publicly asserts that her case was brought for the purpose of dousing inflamed passions, satisfying political agitators, or even easing real suffering undermines the prosecution. It’s not just the wrong thing to do; it’s the dumb thing to do.

At the eventual trial, Ms. Mosby’s main audience is not going to be fawning journalists and anti-police activists. There are going to be experienced defense lawyers sowing doubt into the record, and a judge who instructs a jury that the case rises or falls on the strength of the evidence, not the “call for ‘no justice, no peace.’” When defense lawyers can use the prosecutor’s own words to show the jury that the mob, not the evidence, drove the prosecutor to file charges, the case is severely damaged. The prosecutor is apt to lose a case that should have been won.

So, if I had heard the speech, I would strongly have suspected two things: first, Ms. Mosby is in way over her head; second, her charging decision was driven by politics, not evidence. But I hadn’t heard the speech. All I had to go on was the breakneck speed at which charges were brought despite the case’s factual complexity, and the charges themselves, which spread quickly across the Internet after being disseminated by the prosecutor’s office. Based on this information only, I strongly suspected two things: first, Ms. Mosby is in way over her head; second, her charging decision was driven by politics, not evidence.

Procedures vary from jurisdiction to jurisdiction, but ordinarily when a person is arrested on something other than a grand jury indictment, the charges are accompanied by a narrative statement from an investigating police officer, usually under oath, explaining the probable cause for the offenses alleged.

In the case of the six officers charged in Mr. Gray’s death, however, there was no such document made publicly available.

Instead, we got only the list of charges. To get the narrative we’d normally expect from the state, we needed to turn to the New York Times, which usefully combined claims in Ms. Mosby’s speech with other information made public before charges were filed in order to develop a timeline of key events.

It appears that Ms. Mosby filed charges as soon as the medical examiner (ME) determined that Mr. Gray’s death was a homicide. But as I explained in connection with the death of Eric Garner after an altercation with police on Staten Island, an ME’s conclusion that homicide occurred is not a judgment that murder or even some lesser form of culpable killing occurred.

Homicide simply means death was caused by some course of conduct — conduct that could, in theory, be innocent. A competent prosecutor knows it is a long way from the ME’s pronouncement of homicide to a compelling case that murder has been committed.

Yet, Business Insider’s Peter Jacobs reports that the Baltimore Police Department was stunned by Ms. Mosby’s sudden announcement of charges on Friday. The BPD was still in what it considered the early stages of its investigation. Cops were working off a checklist of 145 investigative tasks to complete, and had plans to work through the weekend amassing additional reports for the prosecutor.

Ms. Mosby forged ahead without any of this information.

A competent prosecutor does not charge first and investigate later. That inevitably leads to gaps in the proof. Worse, it leads to inconsistencies in the charges filed. Those are a defense lawyer’s dream.

In a criminal trial, a prosecutor cannot get away with incoherence. Sometimes, the defense lawyer can: one day the defense is “mistaken identity”; the next, it’s “my client did it but he didn’t mean it”; the next, it’s “he meant it but he was coerced”; and so on. This is not an effective way to build credibility with the jury, but defense lawyers at least have a prayer of pulling it off for a simple reason: they have no burden to prove anything. Defense lawyers are in the business of knocking the case down. If counsel can convince just one juror to doubt the state’s case based on any one theory, no matter how cockamamie, there can be no conviction.

The prosecutor does not have that luxury. Prosecutors are in the business of building the case, for they bear the burden of proving it beyond a reasonable doubt. A competent prosecutor’s job, then, is to develop a coherent theory of guilt. This can only be done by subjecting the evidence to intense scrutiny before filing charges, and then charging the offense(s) that best fits the proof. That way, the case can withstand defense attacks. Juries tend to convict when they’ve gained confidence that the prosecutor knows what happened and proved it convincingly.

By contrast, juries acquit when the state makes allegations that collide with each other. You can hear the defense lawyers now:

If the prosecutor herself cannot figure out what happened here, how can you fair-minded ladies and gentlemen of the jury possibly conclude, unanimously, that there is proof beyond a reasonable doubt supporting a murder conviction?

In a serious, complicated matter, it can take a while for a prosecutor to figure out what happened and to charge the case accordingly. But it is a while worth taking: better to delay and get it right than undermine what may be a winnable case by filing something that suggests the prosecutor is more confused than convinced by the evidence.

To the contrary, Ms. Mosby has filed charges that convey four different theories of homicide.

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The Emerging Clinton Foundation Scandal

April 23rd, 2015 - 8:44 am

Is this the beginning … of RICO?

Okay, so that’s not quite as catchy as Edward G. Robinson’s immortal line. But it is what a good prosecutor would be asking while pondering the growing cloud around the Clinton Foundation.

Among Little Ceasar’s imprints on popular culture is that Robinson’s mobster character, Cesare Enrico Bandello, inspired Congress to name its seminal anti-organized crime legislation “RICO” — the Racketeer Influenced and Corrupt Organizations Act of 1971. The mafia was its most infamous target, but far from its only target.

RICO makes it a crime to run an organization through what’s called a “pattern of racketeering activity.” The term racketeering is extensively defined in the statute. It includes acts involving bribery, fraud, and obstruction of justice, to name just a few.

Prosecutors are fond of RICO because it enables them to unite disparate illicit or corrupt transactions into one framework, the enterprise. It need not be a mafia family or traditional criminal organization; it can be an ostensibly legitimate organization — e.g., a foundation, a labor union, a corporation, a guild — that, contrary to the image it projects publicly, commits sundry legal offenses in conducting its affairs.

As a matter of fact, if the pattern of offenses includes fraud and influence peddling, then the enterprise’s portrayal of itself as a caring, altruistic charitable foundation can be very helpful to the case. Juries do not like hypocrisy and shady dealing. They get turned off by “charitable organizations” that turn out, in the main, to be vehicles for their principals to live lavishly or covers for selling political influence. And juries know charitable organizations tend not to wipe their servers clean even after congressional investigators have instructed them to preserve evidence.

Plus, it is important to bear in mind that, at the moment, the political dimension of the Clinton Foundation scandal transcends the possibility of criminal or civil legal liability. Right now, the Clinton Foundation provides a stark reminder of the last enterprise these characters ran: the Clinton White House. Remember that one? Campaign finance irregularities, selling influence (remember the Lincoln bedroom?), awarding pardons to fraudsters and terrorists for the purpose of rewarding donors and courting political constituencies, blatant obstruction of justice, and perjury.

You see the Hillary! 2016 campaign launch, you consider what we’re learning about the Clinton Foundation, and you naturally ask yourself: Do we really want to go through this again?

You consider the Clinton Foundation, you think about the State Department — Benghazi, the courting of the Muslim Brotherhood, the secret, unlawful email system, the foreign money pouring into Clinton coffers while Mrs. Clinton was making key decisions about American foreign policy — and you naturally ask yourself:

What has Hillary Clinton ever run that did not turn into a debacle?

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Misreading Alinsky

April 10th, 2015 - 5:27 pm

Since the year before his disciple, Barack Obama, was elected president, many of us have been raising alarms about how Saul Alinsky’s brass-knuckles tactics have been mainstreamed by Democrats. It was thus refreshing to find an op-ed in the Wall Street Journal this week, by Pete Peterson of Pepperdine’s School of Public Policy, expressly calling out a top House Democrat for resorting to the seminal community organizer’s extortion playbook.

But in the end, alas, Mr. Peterson gets Alinsky wrong.

He does a fine job of exposing the hardball played by Rep. Raul Grijalva, the ranking Democrat on the House Natural Resources Committee. Grijalva attempted to intimidate scientists and professors who fail to toe the alarmist line on “climate change” by sending letters to presidents of their universities. He wrote the letters on congressional letterhead and purported to impose a March 16 due date for a response – creating the coercive misimpression that the letters were enforceable demands for information, made by a government official in a position to punish noncompliance. The missives sought information about the scientists and academics (among them, the excellent Steve Hayward of Pepperdine and Power Line), including whether they accepted funding from oil companies. Peterson adds that the letters were followed up by officious calls from Grijalva’s staff. The abuse of power is blatant and reprehensible.

Peterson is quite right that Grijalva’s “targeting [of] institutions and their leaders is pure Alinsky; and so are the scare tactics.” He goes astray, however, in contending that this leftist lawmaker’s adoption of Alinsky’s tactics “may not fit with Alinsky’s philosophy.”

In essence, Peterson contends that Alinsky’s systematizing of extortionate tactics can be divorced from any particular ideological agenda. He urges, as did Alinsky himself in Rules for Radicals, that the latter’s system was devised for the “Have-Nots,” advising them how to take power away from the “Haves.” Therefore, Peterson reasons, “an existential crisis for [Alinsky’s] vision” arises once the Have-Nots acquire power: i.e., the system is somehow undermined by its own success because the Have-Nots are not Have-Nots anymore.

This overlooks a crucial detail. There is a reason why Alinsky’s self-help manual is called Rules for Radicals, not Rules for Have-Nots.

Alinsky was a radical leftist. Of course, he struck the pose of one who eschewed faithful adherence to a particular doctrine; but that is a key part of the strategy. To be successful – meaning, to advance the radical agenda – a community organizer needs public support. Thus he must masquerade as a “pragmatist” rather than reveal himself as a socialist or a communist. The idea is for the organizer to portray himself as part of the bourgeois society he despises, to coopt its language and mores in order to bring about radical transformation from within.

But it is not as if Alinsky organizers are indifferent to the kind of change a society goes through as long as it is change of some kind. Alinsky was a man of the hard left, a social justice activist who sought massive redistribution of wealth and power. Peterson acknowledges this in a fleeting mention of Alinsky’s “professed hatred of capitalism.” Noteworthy, moreover, is Alinsky’s Rules for Radicals critique of such seventies revolutionaries as the Weathermen: his contempt stemmed not from disagreement with their goals but from the fact that their terrorist methods enraged the public, making those goals harder to achieve. When a book begins, as Rules for Radicals does, by saluting Lucifer as “the very first radical,” it is fairly clear that the author has taken sides.

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