Ordered Liberty

Ordered Liberty

The Supreme Court’s Alarming Decision Curbing Free Speech

June 18th, 2015 - 10:35 am

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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Former Senate Majority Leader Harry Reid, right and former Senate Foreign Relations Committee Chairman Sen. Robert Menendez, D-N.J., left, in happier times, November of 2014. (AP Photo/Carolyn Kaster)

The Obama Justice Department has filed its much anticipated corruption indictment against Senator Robert Menendez. He is the New Jersey Democrat who, from his powerful senior seat on the Senate’s Foreign Relations Committee, has vehemently opposed President Obama’s negotiations with the jihadist regime in Iran, as well as his outreach to Castro’s Cuba.

Two things about the Obama administration cannot be denied. First, the president is desperate to cut a deal with the mullahs on their nuclear program, so much so that he has erased virtually every red line he ever purported to draw and has not been shy about strong-arming naysayers, including our allies in Israel and France.

Second, the Obama’s Justice Department, which features the first attorney general in American history to be held in contempt of Congress (for obstructing the House’s investigation of the outrageous Fast & Furious scandal), is the most politicized in American history – practicing discriminatory law-enforcement that stays its hand against friends (see, e.g., its treatment of New Black Panther Party voter intimidation, Solyndra fraud, and the Obama 2008 campaign’s large-scale campaign finance violations) while punishing critics, scapegoats, and others who dare to cross the president (see, e.g., treatment of Dinesh D’Souza’s de minimis campaign finance violation; of Nakoula Basseley Nakoula, producer of the anti-Muslim video the administration fraudulently blamed for the Benghazi massacre; and of Standard & Poor’s, squeezed for a $1.37 billion settlement in a retaliatory suit Justice filed after S&P downgraded the U.S. credit-rating).

Consequently, as discussed here at Ordered Liberty last month when Menendez called an extraordinary press conference to defend himself, it was reasonable to suspect that the impending indictment might be payback for defying the president on Iran – indeed, mocking the White House over talking points that, the senator said, read as if they’d been written in Tehran.

As I hastened to point out in that post, this was not an “either-or” scenario. That is, it is entirely possible both (a) that the administration is harassing Menendez and making an example of the wages of defiance, and (b) that Menendez is in fact guilty of crimes. Discriminatory law enforcement is rarely a matter of trumping up cases. It is more a matter of exploiting the gray areas of prosecutorial discretion. Dinesh D’Souza, for example, was undeniably guilty of campaign finance violations. Nevertheless, the Justice Department typically allows these to be settled by administrative fine … as it did in the case of the Obama 2008 campaign’s offenses. D’Souza, to the contrary, was singled out for a multiple felony prosecution, with the Justice Department aggressively pushing for a significant prison sentence (denied by the judge), even though D’Souza’s $15,000 violation was a pittance compared to the Obama campaign’s concealment of nearly $2 million in donations.

So now that Menendez and his heavyweight donor, Florida opthalmologist Salomon Melgen, have been indicted on 22 corruption counts (comprised of conspiracy, bribery, fraud and false statements charges), it is worth asking: Is Menendez being unfairly singled out for prosecution on conduct in the nature of “everybody does it”? In considering this question, it is worth focusing on that paragon of Beltway rectitude, Harry Reid, who makes an intriguing cameo appearance in the Menendez indictment.

Boiled down to its essence, the 68-page indictment charges Menendez with agreeing to accept “things of value” (expensive gifts, vacations, private plane trips, and hundreds of thousands of dollars in contributions) from Dr. Melgen in return for being influenced to use his powerful office for Melgen’s benefit. The charging instrument describes an unusually lavish donor-pol arrangement. Still, the choreography of pay-to-play contributor and pampered elected official – with the chorus line of connected lobbyists and eager-to-please staffers in between – is hardly atypical of Washington … which is why so many Americans hold their government in such contempt.

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The Obama administration may not have much use for federal law or for Congress’s constitutional role in providing advice on, determining whether to consent to, and enacting any legislation necessary to implement international agreements. But it exhibits cloying reverence for a fatwa — a sharia law edict — issued by a jurist who runs a regime that is the world’s leading state sponsor of jihadist terror.

Even when the fatwa is a patent hoax.

Secretary of State Kerry, like his predecessor Hillary Clinton and his boss President Obama, took time out from his tirades against Senate Republicans’ exposition of the Constitution to praise the fatwa the administration claims that Iran’s top mullah, Ayatollah Khamenei, issued against nuclear weapons. As the Weekly Standard’s Jeryl Bier reports, Kerry, in the course of addressing the administration’s negotiations with Iran over its nuclear program, told the press during a visit to Egypt:

As you all know, Iran says it doesn’t want a nuclear weapon, and that is a very welcome statement that the Supreme Leader has, in fact, incorporated into a fatwa. And we have great respect — great respect — for the religious importance of a fatwa.

Then-Secretary of State Hillary Clinton also sounded a hopeful note about this supposed fatwa in 2012, claiming to have discussed it with “a number of experts and religious scholars,” as well as with Turkey’s Islamist then-prime minister (now president) Recep Tayyip Erdogan. In 2013, President Obama himself proclaimed:

[T]he Supreme Leader [Khamenei] has issued a fatwa against the development of nuclear weapons, and President Rouhani has just recently reiterated that the Islamic Republic will never develop a nuclear weapon.

But the “fatwa” in question does not exist.

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.

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.

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It’s Not ‘Either…Or’ with Menendez

March 8th, 2015 - 3:24 pm

Sen. Robert Menendez speaks to reporters during a news conference, Friday, March 6, 2015, in Newark. A person familiar with a federal investigation of Menendez says the Justice Department is expected to bring criminal charges against the New Jersey Democrat in the coming weeks. (AP Photo/John Minchillo)

The speculation that Senator Robert Menendez (D-NJ) is about to be indicted on corruption charges is well informed enough that Menendez found it necessary on Friday to launch a preemptive self-defense in the media.

Sen. Menendez is suspected of influence peddling on behalf of Salomon Melgen, a Florida ophthalmologist and major donor Menendez describes as a longtime family friend. In 2012 alone, when Menendez was seeking reelection to the Senate, Melgen contributed $700,000 to his and other Democratic campaigns.

In addition, the Washington Post reports, sources claim Melgen has done Menendez various other favors, not least providing prostitutes (including minors) while Menendez stayed at a friend’s Dominican resort home, an allegation the senator vigorously denies. Beyond that salacious aspect of the case, the FBI is investigating whether money and other favors from Melgen induced Menendez to intervene on his behalf in at least two significant transactions: (a) pushing the the U.S. Customs and Border Protection agency to favor a Melgen-backed company in the acquisition of screening equipment for Dominican Republic ports; and (b) pressuring then-Health and Human Services Secretary Kathleen Sebelius and other top officials to resolve a Medicare billing dispute to Melgen’s advantage.

Menendez, a Clinton crony and a generally reliable progressive, has been an unusual Democrat in his vehement opposition to President Obama on two prominent foreign affairs matters: Iran and Cuba. At the moment, the Iran negotiations are of particular significance to the legacy-hunting Obama, who plainly sees cutting a deal on the mullahs’ nuclear program – no matter how rotten a deal – as a potentially defining achievement. Menendez, who has always enjoyed strong support among American Jews, has been scathing in criticizing Obama’s appeasement of the jihadist regime that publicly vows to annihilate Israel and is the world’s leading sponsor of anti-American terrorism.

So, as one would expect, Menendez sympathizers are claiming that the Obama administration’s apparently imminent prosecution of this prominent Democrat is strictly political intimidation: an attempt to criminalize politics-as-usual in order to silence and perhaps sideline a dissenter at a critical moment in the Iran negotiations. Administration sources counter that the investigation of a prominent Democrat shows that the administration is not partisan when it comes to law enforcement; the timing of the charges, they add, is driven not by political considerations but by the statute of limitations: apparently, one or more of the potential charges against the senator will be time-barred if the Justice Department does not indict them soon.

It is only natural that the competing camps should offer these divergent views. The case, however, is not an “either … or” situation. It is perfectly reasonable to believe both that Menendez may be guilty of corruption offenses and that his political opposition on Iran is factoring into the administration’s decision to charge him. Put another way, if Menendez were running interference for Obama on the Iran deal, rather than trying to scupper it, I believe he would not be charged.

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With the Republican surrender on President Obama’s amnesty decree that I predicted over a month ago now taking shape, an appeal to duty may be futile. Nevertheless, it is still worth being blunt about this. The Beltway GOP’s retreat would be a profound dereliction of duty – specifically, the duty that Congress owes to the states.

The federal government, very much including Republican lawmakers and conservative judges, has systematically disarmed the states of their capacity for self-defense. The power to defend one’s territory – including the power to remove aliens who have no legal right to be present – is an ineliminable component of sovereignty. The preservation of state sovereignty, in turn, is part of the core guarantee that induced the states to ratify the Constitution.

At a minimum, then, federal law – made in Congress, where the states are represented – must preserve the sovereign right of states to protect themselves. Obama’s executive action not only bypasses Congress; it undoes and countermands congressional laws designed to fulfill the federal government’s duty to protect the states. The president does not merely purport to establish enforcement priorities, as any president must do. He rewrites federal law under the guise of “prosecutorial discretion.” More blatant, he presumes to confer a de facto amnesty – an adjustment of status from deportable to non-deportable – as well as other legal benefits that the Constitution empowers only Congress to grant – e.g., work permits and Social Security numbers.

Of course, as I explain in Faithless Execution, such actions flout the president’s oath and duty to execute the laws faithfully. But that is not the half of it. Congress, too, is derelict if lawmakers agree – reluctantly or not – to fund Obama’s lawlessness. Senators and Members of the House are not bystanders; they are elected representatives who have a duty to act. It is immaterial how they personally feel about Obama’s malfeasance. The only relevant thing is that they have the power to stop it by refusing to pay for it. If, despite having that power, they consciously devise a legislative process that inevitably results in the provision of funding for the president’s decree, then they are knowingly aiding and abetting his lawlessness. That makes them equally guilty, case closed.

That, moreover, would be a profound betrayal of the states, whose inability to defend themselves from illegal immigration is largely attributable to Congress’s encroachments.

A little history. The federal government was given no responsibility for immigration enforcement. Indeed, for the first century-plus of constitutional governance, there was no Justice Department and nothing remotely resembling the federal domestic law-enforcement system we have today. The Constitution gave Congress the power to set the qualifications for American citizenship. Enforcing the law, including the laws against illegal presence within the territory of a state, was a state responsibility.

Nowadays, this division of power is thought quaint. But it was actually more sensible and humane than what we have now. It recognized that because economic and social conditions vary widely in a large, growing country, a one-size-fits-all immigration policy imposed by Washington would be a terrible idea. Under our former system of federalism, states that wanted to be more welcoming of non-Americans had the capacity to do that. They could reap the benefits of generous immigration policies as long as they did not socialize the costs. This, in turn, encouraged a healthier brand of immigration: people who came to our country because they wanted to be Americans and live the dream of self-made success through hard work.

The state interest in immigration enforcement was always obvious. What was not clear was whether the federal government had a role to play beyond securing the country from foreign invasion. Eventually, a role was divined, mainly by the courts. Ironically, a major part of the rationalization was that because the federal government exercises sovereignty on behalf of the American people as a whole, it has to be able to control its borders and the internal activities of aliens because self-defense in an ineliminable ingredient of sovereignty.

Alas, the sovereign right of self-defense is exactly what the federal government has now stripped away from the states. To understand how this happened is to understand why the coming Republican decision to collude in Obama’s lawlessness is so indefensible.

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