Ordered Liberty

Ordered Liberty

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
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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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Egypt Battles ISIS and Sharia Supremacism

February 16th, 2015 - 9:50 am

How does Egypt differ from Saudi Arabia and Qatar? Two ways: (1) It was not invited to join President Obama’s ballyhooed “coalition” of Arab Muslim states fighting against ISIS, and (2) it is actually fighting against ISIS.

Obama, of course, has aligned himself with the anti-American, anti-Western and anti-Semitic Muslim Brotherhood, which, like ISIS, wants to impose sharia globally. Thus the State Department continues to host and consult with the Brotherhood about the future of Egypt, even though the Brotherhood has been outlawed as a terrorist organization – the government it dominated having been ousted from power after millions of Egyptians took to the streets to demand its removal.

Meanwhile, the new government of President Abdel Fattah el-Sisi, who was elected by a wide margin after the Brotherhood was cashiered, is taking the fight to ISIS – including cooperating with Israel in the Sinai, where ISIS is working with Hamas (the Brotherhood’s Palestinian branch), as Caroline Glick detailed last week, here.

Moreover, the New York Times reports that Egypt is conducting airstrikes against ISIS’s new operations base in Libya (the country that Islamists have destabilized and largely overrun thanks to President Obama’s decision to help Islamists overthrow the Qaddafi regime). Unlike the former Brotherhood government that freed jihadist leaders and abetted the persecution of Coptic Christians, Sisi’s government is attacking the jihadists to avenge ISIS’s savage murder of Egyptian Christians. The Times’ David Kirkpatrick notes that:

The Egyptian military said on Monday that it had carried out two rounds of airstrikes in Libya in retaliation for the beheading of more than a dozen Egyptian Christians by a branch of the Islamic State extremist group there.

In a statement Monday morning, the Egyptian military said that it had conducted airstrikes at dawn against training camps and arms depots of the Islamic State group in Libya, but it did not provide further details. The Foreign Ministry said that Egyptian warplanes had struck Derna, a town in eastern Libya that is a hub of Islamist militancy.

* * * * * * *

In a televised address late Sunday night, President Abdel Fattah el-Sisi of Egypt vowed that his country would take action to avenge the killings.

“Egypt preserves the right to respond, with the appropriate manner and timing, in order to carry out retribution on those killers and criminals who are stripped of the most basic of human values,” Mr. Sisi said.

The Egyptian military said in a statement issued around 8:30 a.m. that the dawn strikes were “retribution and response to the criminal acts of terrorist elements and organizations inside and outside the country.”

“We stress that revenge for the blood of Egyptians, and retribution from the killers and criminals, is a right we must dutifully enforce,” the statement said. Egyptian state television showed footage of F-16s taking off in the dark as the statement was read on the air.

* * * * * * *

Egypt’s air assault came less than 12 hours after the main Islamic State group released a video online that appeared to show fighters from the group’s self-proclaimed Tripolitania Province beheading more than a dozen Egyptian Christians.

The Christians were among the thousands of Egyptians who routinely travel across the border to Libya to find work in its oil-rich economy, forging a deep connection between the two neighboring states. About 20 Egyptian Christians disappeared around the coastal city of Surt weeks ago, and last month the Tripolitania Province released a picture showing that it had captured them.

As Roger Simon and Ray Ibrahim have recounted, Sisi, a devout Muslim, began this year by admonishing Islam’s most influential scholars at al-Azhar University that Islam must reform – that it must, in his words, have a “religious revolution.” He was not simply making the fatuous but oft-repeated claims that Islam is innately peaceful and predominantly practiced in moderation. He was imploring sharia jurists to reject unambiguously both violent jihadism and, crucially, the scripturally-rooted ideology that fuels this terrorism:

It’s inconceivable that the thinking that we hold most sacred should cause the entire umma [Islamic world] to be a source of anxiety, danger, killing and destruction for the rest of the world.  Impossible!

That thinking—I am not saying “religion” but “thinking”—that corpus of texts and ideas that we have sacralized over the years, to the point that departing from them has become almost impossible, is antagonizing the entire world.

So here we have what American officials have always said we’ve desperately needed: A respected Muslim leader of a vitally important Muslim country who is courageously opposing – in word and deed – the jihadists and their ideology. And what is the president of the United States doing? He is denying them the support they need and driving them into the arms of Vladimir Putin.

Besides remaining miffed that Egypt has outlawed the Brotherhood, Obama is busy helping Iran become a nuclear power – even as Iran-backed terrorists seize Yemen and target Israel. So Russia has moved in, pledging to aid economically strapped Cairo in both fighting terrorists and building a nuclear power industry.

If President Obama did not have a disastrous foreign policy, he’d have no foreign policy. Our Islamic allies in combating “violent extremism” are not sharia-supremacists like the Muslim Brotherhood and the regimes in Saudi Arabia and Iran. Our ally is Egypt.

Update: PJ Media’s Patrick Poole catches al-Jazeera — the jihadist propaganda arm hosted by President Obama’s “coalition” partner, Qatar — recycling old pictures of dead children to make it look like they were killed by Egypt in the retaliatory strikes against ISIS.

The insipid moral equivalence in President Obama’s apologia for Islam at the National Prayer Breakfast Thursday morning has already been deconstructed by such commentators as Roger Simon, Victor David Hanson and Jonah Goldberg. I am bothered, though, by the president’s presumption of equivalence between doctrinal apples and oranges. If, as he maintains, we must engage in comparative religion with a focus on what believers do in the name of their varying faiths, then we should also analyze what their varying faiths tell them to do.

Sounding more like the executive director of CAIR, the president of the United States warned Christians and other non-Muslims to stay off “our high horse” regarding the sadistic murder of a Jordanian pilot, Lieutenant Mouath al-Kasaebeh, by Islamic State terrorists. We must have some humility, explained famously humble Mr. Obama. After all, over the last millennium, “people committed terrible deeds in the name of Christ.”

In Islamic doctrine, Jesus (Isa) is considered not God but a prophet. He is deemed to anticipate the final prophet, Mohammed, and to preach a Gospel subsequently perfected by the revelations of the Koran.

From that perspective, then, an analogous answer to Obama’s assertion could be made by recounting the terrible things Muslims have done in the name of Mohammed — an answer that wouldn’t require mining a millennium since it has been just three weeks since Lt. al-Kasaebeh’s immolation and the scene of mass-murdering jihadists braying, “Allahu Akbar! The prophet has been avenged!” as they fled the offices of Charlie Hebdo.

I’m more interested, though, in the deeds of Mohammed himself. When Christians resort to the wrongs cataloged by Obama, they are blatantly deviating from the example of Christ. Can the same be said for Muslims and the example of Mohammed?

In 627 AD, the prophet orchestrated the mass-murder of the Jewish Banu Qurayza tribe after they had surrendered to the Muslims. He presided over the beheadings of somewhere between 600 and 900 members of the tribe – including all young boys who had reached puberty. The women and the remaining children were taken as concubines and slaves (with some of the women sold for horses and armor). All the tribe’s wealth was confiscated.

This is not speculation. The incident is explicitly recorded in Koran. (By the way, I use the Koran approved and published in various languages, side-by-side with the original Arabic, by the Saudi government’s Ministry of Hajj and Endowments. The Kingdom has widely disseminated this version throughout the world, particularly Islamic schools.)

As recounted in Sura 33:25-27:

Allah turned back the unbelievers for (all) their fury: No advantage did they gain; and enough is Allah for the believers in their fight. And Allah is full of strength, exalted in might.

And those of the people of the book [the Banu Qurayza] who aided them – Allah did take them down from their strongholds and cast terror into their hearts, (so that) some ye slew, and some ye made captives.

And He made you heirs of their lands, their houses, and their goods, and of a land which ye had not frequented (before). And Allah has power over all things.

Mohammed’s first authoritative biographer, Mohammed ibn Ishaq (d. 768), elaborates with this account (reproduced at wikiislam.net):

Then [the Banu Qurayza] surrendered, and the apostle confined them in Medina[.]… Then the apostle went out to the market of Medina (which is still its market today) and dug trenches in it. Then he sent for them and struck off their heads in those trenches as they were brought out to him in batches. Among them was the enemy of Allah Huyayy b. Akhtab and Ka`b b. Asad their chief. There were 600 or 700 in all, though some put the figure as high as 800 or 900.

As they were being taken out in batches to the apostle they asked Ka`b what he thought would be done with them. He replied, “Will you never understand? Don’t you see that the summoner never stops and those who are taken away do not return? By Allah it is death!” This went on until the apostle made an end of them. Huyayy was brought out wearing a flowered robe in which he had made holes about the size of the finger-tips in every part so that it should not be taken from him as spoil, with his hands bound to his neck by a rope. When he saw the apostle he said, “By God, I do not blame myself for opposing you, but he who forsakes God will be forsaken.” Then he went to the men and said, “God’s command is right. A book and a decree, and massacre have been written against the Sons of Israel.” Then he sat down and his head was struck off.

Ibn Kathir, a revered fourteenth century scholar of sharia jurisprudence and biographer of Mohammed, adds:

Then the Messenger of Allah commanded that ditches should be dug, so they were dug in the earth, and they were brought tied by their shoulders, and were beheaded. There were between seven hundred and eight hundred of them. The children who had not yet reached adolescence and the women were taken prisoner, and their wealth was seized.

This was six centuries after the Gospel of the New Testament. Even if he did not turn the other cheek, the prophet could have shown compassion to his enemies. They had surrendered. Even if he had been determined to seize their territory and wealth, he could have allowed them to evacuate. Instead, he killed, enslaved, and sold them off.

Some background is necessary before we get to a second incident in the life of the prophet. Earlier this week, the Islamic State released a slick video showing Lt. al-Kasaebeh being burnt alive in a cage. The Obama administration spun into action … fresh off offending both the Egyptian government and most Americans by hosting some of its friends from the outlawed and virulently anti-American Muslim Brotherhood at the State Department. Echoing Islamists, administration officials assured us that, while this sort of barbarity was a staple of fifteenth century Christianity — it was against everything Islam stands for, and thus utterly slanderous for ISIS to rationalize it as Islamic warfare.

Inconveniently, the Koran proclaims that immolation is a punishment favored by Allah, so much so that the skin is constantly replaced to prolong the agony. It is imposed, moreover, not for anything particularly treacherous — just for refusing to accept Islam. Sura 4:56 explains:

Those who reject Our signs, We shall soon cast into the Fire. As often as their skins are roasted through, We shall change them for fresh skins, that they may taste the chastisement: for Allah is Exalted in Power, Wise.

Now, according to “Muslim clerics” far and wide, as reported by Reuters, immolation is “considered despicable by Islam, no matter what the context.” How can that be when the Koran tells us Allah Himself has prescribed immolation as a suitable punishment? Because, Islam’s defenders rationalize, the immolation promised in the Koran is for Allah alone to impose in the afterlife, not for men to presume to impose in this life. “Only God tortures by fire,” tweeted Salman al-Odah, a Saudi sheikh.

That’s not very persuasive. There are, after all, numerous cruel penalties that Islamic scripture has Allah directing Muslims to impose — scourging, stoning, beheading and so on. Indeed, while in one breath condemning the torching of the pilot as a “lowly terrorist act” by a “Satanic, terrorist” group, Reuters quoted Grand Sheikh Ahmed al-Tayeb, Grand Sheikh of al-Azhar (the ancient seat of Sunni scholarship), as pronouncing in the next breath that the ISIS killers should be “killed, crucified or have their limbs amputated.”

As Robert Spencer points out, the grand sheikh clearly drew that sharia sentence straight out of the Koran. Specifically, according to Sura 5:33:

The punishment of those who wage war against Allah and His Messenger, and strive with might and main for mischief through the land is: execution, crucifixion, or the cutting of hands and feet from opposite sides, or exile from the land[.]

The verse goes on to say that, for those condemned, these punishments are to be “their disgrace in this world”; then, after death, another “heavy punishment” awaits them — presumably, the eternal barbecue foretold by Sura 4:56.

So at best, fire is frowned upon, but death by crucifixion and amputation is recommended. Not terribly comforting.

But it gets worse. There is also an eye-for-an-eye dimension of Islamic jurisprudence. Back to Sura 5, this time verse 45: “We ordained therein for them, ‘Life for life, eye for eye, nose for nose, ear for ear, tooth for tooth, and wounds equal for equal.” This is why, for example, in Saudi Arabia, where sharia is the law of the land, the government had a prisoner’s eye surgically removed after he was found guilty of an assault that damaged his victim’s eye.

Lt. al-Kasaebeh was captured while on a mission to firebomb Islamic State targets. The jihadists thus contend that setting him on fire was the reciprocal, scripturally prescribed punishment. That rationale is disturbing to us in the West, where — unless you’re frozen, Obama-like, in the fifteenth century — we do not criminalize honorable combatants who conduct legitimate attacks on enemy forces (and we don’t, in any event, do immolation).

Nevertheless, ISIS’s argument carries considerable weight in Islam. Even in the Reuters report that tries hard to depict universal Muslim condemnation of ISIS, a Jordanian cleric known as Abu Sayaf (a/k/a “Mohamed al-Shalabi”) is quoted as grudgingly saying, “Even if the Islamic State says [the Jordanian pilot] had bombed and burnt and killed us and we punished him they way he did to us, we say, ‘OK, but why film the video in this shocking way?’” In other words, burning the pilot alive is justifiable; it’s the bad PR from recording it that is unacceptable.

Now, with all that as context, let’s consider another episode from the prophet’s life, which, as Mr. Spencer points out, is conveniently omitted by al-Azhar’s grand sheikh, his fellow sharia jurists, and Islam’s Western apologists in the White House and beyond. The incident is recorded in Ibn Ashaq’s biography of the prophet (italics mine):

Kinana b. al-Rabi`, who had the custody of the treasure of B. al-Nadir, was brought to the apostle who asked him about it. He denied that he knew where it was. A Jew came … to the apostle and said that he had seen Kinana going round a certain ruin every morning early. When the apostle said to Kinana, “Do you know that if we find you have it I shall kill you?” he said Yes. The apostle gave orders that the ruin was to be excavated and some of the treasure was found. When he asked him about the rest he refused to produce it, so the apostle gave orders to al-Zubayr b. al-Awwam, ‘Torture him until you extract what he has,’ so he kindled a fire with flint and steel on his chest until he was nearly dead. Then the apostle delivered him to Muhammad b. Maslama and he struck off his head, in revenge for his brother Mahmud.

So at Mohammed’s direction, a man’s chest was set on fire to extract information from him before he was beheaded. Well, at least he wasn’t waterboarded.

Robert adds a hadith from the authoritative Sahi Bukari collection (No. 626 in Book 1, Volume 11) (again, my italics):

Certainly I decided to order the Mu’adh-dhin (call-maker) to pronounce Iqama [the call to prayer] and order a man to lead the prayer and then take a fire flame to burn all those who had not left their houses so far for the prayer along with their houses.

Relatedly, Raymond Ibrahim directs our attention to an incident involving the prophet, recorded in another Bukari hadith (No. 261 in Book 4, Volume 52). The story involves eight starving tribesmen who sought the prophet’s help. Mohammed directed them to a shepherd, who fed them until they recovered their health. But they turned on the shepherd, killing him, and renouncing Islam. When he was informed, Mohammed ordered that they be captured and – besides having their hands and feet cut off – that iron be heated by fire and passed over their eyes, blinding them.

President Obama says we need to approach comparisons of religion with humility. I’m all for that. In a 2011 NRO column, I traced the evolution of Christianity in America from the often harshly theocratic origins of the original colonial settlements to the tolerant pluralism of modern times. The president, however, misses the point of humility. It is to refrain from dismissing out of hand the hope that Islam, too, will eventually evolve. It is not license to remain willfully blind to the dangers posed to us by its doctrine, as widely understood and practiced by a mainstream faction of Islam for centuries, right up to the present day.

Courageous Muslim reformers are laboring to advance an evolution — and they risk death at the hands of radical Muslims who regard them as apostates, an offense Islam punishes by death. We can humbly encourage the reformers while rationally acknowledging that their labors are very uphill. To repeat what I wrote in the 2011 column:

Cultures are dynamic. They change drastically over time. [But] there are grounds for concern that Islam’s will have a harder time evolving — the blights on our history are rooted in human failure to apply Judeo-Christian doctrine, not in the doctrine itself. [By contrast,] Islam’s problems are more about Islam than about Muslims.

That remains true, Obama’s wayward moral equivalence notwithstanding. Islam regards the Koran as the immutable word of Allah. In Sura 33:21, Allah gives Muslims the following admonition regarding Mohammed, “Ye have indeed in the Messenger of Allah an excellent exemplar for him who hopes in Allah and the Final Day.” Muslims are commanded to imitate their prophet. It is undeniable that their prophet was, to put it mildly, an aggressive warrior.

With regard to that aspect of Mohammed’s legacy, there is nothing equivalent to it in Christianity.

It is not humility but delusion to pretend that modern Islam is just fine as is. It is not humility but cowardice to indulge the suicidal notion that our own past sins render us unfit to condemn today’s atrocities.