To cut to the chase, a country that was serious about its national security would never put John Brennan in charge of its premier intelligence service.
Of course, it is by no means clear that the United States is any longer a serious country in this regard. Serious countries do not fund, arm and “partner with” hostile regimes. They do not recruit enemy sympathizers to fill key governmental policy positions. They do not erect barriers impeding their intelligence services from understanding an enemy’s threat doctrine – in conscious indifference to Sun Tzu’s maxim that defending oneself requires knowing one’s enemies. All of these malfeasances have become staples of Obama policy, under the guidance of Brennan, the president’s counterterrorism guru.
Still, the installation of a Beltway operator whose métier is misinformation as director of central intelligence would be an epic mismatch of man and mission. It would expand unseriousness to new frontiers of self-inflicted peril.
The reason is as elementary as it gets: The purpose of intelligence is to see what your enemy is trying to hide, to grasp how your enemy thinks, and how he cleverly camouflages what he thinks. That, to be certain, is the only security against stealthy foes who specialize in sabotage, in exploiting the liberties that make free societies as vulnerable as they are worth defending.
Mr. Brennan, to the contrary, is the incarnation of willful blindness. His tenure as Obama’s top national security advisor has been about helping our enemies throw sand in our eyes and thus enabling the sabotage.
As I detail in The Grand Jihad, which recounts the Muslim Brotherhood’s history, ideology, and self-proclaimed “civilization jihad” against the West, sabotage is the Brotherhood’s defining practice. Indeed, “sabotage” is the word the Brothers themselves use to describe their work. It appears in an internal memorandum, which elaborates that the organization sees its mission in the United States as “eliminating and destroying Western civilization from within.” Besides that long-term goal, the Brotherhood’s network of American affiliates have pursued the more immediate aim of materially supporting Hamas, a formally designated terrorist organization to which the provision of material support is a felony under federal law.
None of that is new. It was not merely well known but had been proved in court by the Justice Department a year before Obama took office. I refer to the Justice Department’s 2008 Hamas financing prosecution, the Holy Land Foundation case. Yet, counterterrorism czar Brennan remains undeterred, a driving force of the Obama administration’s “Islamic outreach” – a campaign to give Islamist organizations influence over U.S. policy. That several of those organizations were proved in the HLF case to be members of the Muslim Brotherhood’s American network is clearly of no moment.
Two such organizations are the Council on American-Islamic Relations (CAIR) and the Islamic Society of North America (ISNA). They were among a slew of Islamist groups who wrote to Brennan in October 2011 to demand a purge of information about Islamist ideology that was being used to train U.S. intelligence and law-enforcement agents. Much of that information was developed in federal investigations that have led to the convictions of violent jihadists. Nevertheless, the Obama administration has slavishly complied (see, e.g., here and here).
Understand: CAIR and ISNA, though never indicted, were proved to be conspirators in the Brotherhood’s Holy Land Foundation scheme to promote and finance Hamas. In fact, the FBI formally cut ties with CAIR as a result of the HLF case (although why they had ties with CAIR in the first place remains baffling). The training materials the Islamist groups insisted be removed include documentation of the fact that terrorism committed by Muslims is driven by an ideology rooted in Islamic scripture.
That this irrefutable fact makes us uncomfortable renders it no less a fact. Maybe the State Department and the White House press office have the luxury of trading in convenient fictions in order to reduce international tensions. Not intelligence agencies. The point of intelligence – a bedrock of national security – is to see the world as it is, not as we wish it to be.
The silly season is upon us again, which is to say: Washington finds itself in yet another debate over “comprehensive immigration reform.”
The core silliness could be heard in the arguments of Marco Rubio, one of four Republicans in the Senate “Gang of Eight” urging a deal that purports to ensure real immigration enforcement in exchange for legalization of status and an ultimate “path to citizenship” for millions of illegal immigrants. Earlier this afternoon, Sen. Rubio was interviewed by Rush Limbaugh.
Sen. Rubio admirably insisted, “We need border security. We need workplace enforcement. We need a visa tracking system.” But, as Rush pointed out, President Obama is outlining his own vision of immigration reform in Las Vegas today, and it promises to diverge in a fundamental way from the Gang of Eight proposal: The president has no interest in immigration enforcement. He wants only the legalization goodies for current illegals and the incentives they’ll inevitably create for more illegal immigration. He is not interested in the protections for the American people that Sen. Rubio touts.
Sen. Rubio confidently responded that if the president makes such a pitch, he will have a huge problem with his own party — in particular, with Sen. Chuck Schumer and the other Gang of Eight Democrats who’ve supposedly committed their party to meaningful enforcement measures. This contention is absurd. It suggests that Sen. Rubio either does not understand how the federal government works (highly unlikely for a man of Rubio’s obvious intelligence), or is making a monumental miscalculation — elevating over the certain-to-be-damaging consequences of his proposal the futile hope that Republicans will win lasting accolades from the pro-illegal immigration Obamedia.
The executive branch is in charge of law enforcement, period. Congress cannot enforce the law and cannot compel the president to do so. And we already know there will be no meaningful immigration enforcement as long as President Obama is running the executive branch. As usual in Washington’s progressive crusades, we are expected to forget all relevant history — in this instance, not only the sorry history of the 1986 amnesty (in which Washington predictably provided all the legalization goodies but reneged on the enforcement promises) but also the Obama administration’s more recent, more virulent anti-enforcement record.
Can Sen. Rubio have missed the Obama Justice Department’s lawsuit against the citizens of Arizona? The state enacted a law that simply reaffirmed the Congress’s own immigration statutes and enabled state police to enforce those federal standards. The Obama administration not only sued the state for enforcing federal law, it did so by positing a radical new understanding of the “pre-emption” doctrine. Formerly, that doctrine stood for the proposition that the states could not enact laws that contradicted properly enacted federal statutes. Under Obama’s interpretation, the states were precluded from enacting laws that contradicted U.S. executive branch enforcement policy even if they were completely consistent U.S. congressional law.
The D.C. Circuit Court of Appeals today invalidated one of President Obama’s most despotic overreaches to date: his attempt to use the Constitution’s recess appointment power to make appointments despite the absence of a recess. Judge David Sentelle’s opinion for the three-judge panel makes a powerful case for an originalist interpretation of the relevant clause (Art. II, Section 2, Clause 2).
The case involves our organized labor-loving president’s effort in January 2012 to stack the National Labor Relations Board with three members he obviously did not believe the Senate would confirm — another iteration of the Constitution-flouting ideology that led Obama to appoint numerous “czars” in an end-run of the Senate confirmation process. (At the same time he “recess-appointed” the three NLRB members, Obama also purported to appoint a left-wing chief of the constitutionally dubious Consumer Financial Protection Bureau — a Dodd-Frank monstrosity to which Republicans object. The CFPB “recess appointment” was not involved in the case decided today, but the court’s rationale surely spells doom for it as well.)
The problem for Obama was that the Senate was not in recess. To be sure, it was not doing much business at the time and was, in the main, only technically in session. Nonetheless, its official session had not come to an end.
As the court observed, the recess appointment power is a relic of our early history, when Congress would break for several months at a time and lawmakers could not hop on a flight back to Washington at the drop of a hat. It was meant as a “stopgap for times when the Senate was unable to provide advice and consent,” the Court reasoned, not as an exception that would swallow the rule of Senate confirmation. That rule, the Supreme Court has noted, was designed as a check against executive abuse of “the power of appointment to offices,” which was “one of the American revolutionary generation’s greatest grievances” against the British crown — “the most insidious and powerful weapon of eighteenth century despotism.”
President Obama has nominated my former boss, Mary Jo White, to be the next chairwoman of the Securities and Exchange Commission. He could not have made a better choice.
I worked for Mary Jo for nearly a decade when she was U.S. Attorney for the Southern District of New York for nine years, from 1993-2002. It’s not enough to say she’s one of the best lawyers in the country; she’s also one of the best people I’ve been fortunate to know. She is whip smart and tough. She is also a model of integrity and rectitude. She will do what the SEC ought to do: aggressive enforcement against fraudulent actors. But she also has a world of experience representing businesses, and thus a mature appreciation of the difference between necessary regulation and paralyzing overreach.
The president has made many terrible appointments. To say that this one is a superb appointment is not to grade him on a curve. Mary Jo White will be terrific in what is a very important job.
Like Roger Kimball and Michael Ledeen, I was privileged to get to know Judge Robert Bork over the years. That was a thrill because he was a hero of mine long before I met him. I was struck not only by the dignity with which he endured the slanders by which the Left’s lapdogs denied him the Supreme Court seat he so richly deserved, but also by the trenchant books he wrote after the ordeal — in particular, The Tempting of America and Slouching Towards Gomorrah. These are not merely towering works of legal philosophy but essential commentaries on our culture by one of its most refined observers — and, for sheer enjoyment purposes, books as witty as they are wise.
Along with Justice Scalia and Reagan Attorney General Ed Meese, Bob was among the trailblazers of “originalism,” the theory holding that judges must construe the law, particularly the Constitution, in accordance with what it was understood to mean at the time of its adoption. But he was a legend in many areas of the law, notably antitrust and international law. The latter occasioned the first conversation I ever had with him — he sought me out, when we both happened to be at a function in Washington, with praise for an essay I’d written for Commentary. As a writer, I’ve never had a prouder moment. Remembering it still softens the blow from the time I deeply disappointed him, apres one of Roger’s conferences, by ordering a vodka martini. As the Judge — an expert on this as on so many things — was known to instruct, there is only one kind of martini — gin (as it should not be necessary to specify), straight up but with the barest trace of vermouth … and “olives are to be eschewed, except by people who think a martini is a type of salad.”
I was thrilled back in 2009 when Roger asked me to review A Time To Speak — an anthology drawn from a half-century of Bob’s copious, brilliant writings — for The New Criterion. Rereading the review today, I was again struck by the enduring wisdom of an essay the Judge wrote long before the Age of Obama. I ended the review by discussing it:
Of all the wisdom that overflows from A Time to Speak, it is a thirty-year-old essay, “The Impossibility of Finding Welfare Rights in the Constitution,” that readers may find most relevant. In the waning weeks of last year’s presidential campaign, it emerged that Barack Obama, as an Illinois state legislator, had lamented that the Warren Court “wasn’t that radical” after all. It had, to his mind, failed to take on “the issues of redistribution of wealth, and of more basic issues such as political and economic justice in society.” Obama, whose ardor for the “living” Constitution is no secret and who opined throughout the campaign that his judicial nominees’ most important attribute would be “empathy,” faulted the high court for declining to “break free from the essential constraints” he acknowledged were “placed by the founding fathers in the Constitution.” Our fundamental law thus remained “a charter of negative liberties”—one that says only what government “can’t do to you.” For the President, economic justice cries out for the positive case: what government “must do on your behalf” (emphasis added).
“Positive liberty” is old wine in a new bottle, fermented in the mid-1970s by, among others, the Harvard scholar John Hart Ely, who eschewed Bork’s “interpretivist” approach in favor of a theory dubbed “representation-reinforcement.” Ely believed Article IV’s Privileges and Immunities Clause and the Ninth Amendment invited judges to create new rights. He theorized, Bork recounts, “that people will have better access to the political process if their basic needs are met.”
As Bork demonstrates, the concept is factually dubious and fundamentally undemocratic. Whatever was meant by “privileges and immunities” and other undefined rights—and the Framers themselves were indeterminate on the matter—there is “not a scintilla of evidence” that by conceding the existence of unspecified rights, those who wrote and ratified our Constitution were directing that theretofore unknown rights be created, much less created by the courts. The Constitution contains no hint of such a novel idea, and—as Obama implicitly admitted in his 2001 remarks—even the most activist of Supreme Courts never claimed such license.
More to the point, the Constitution is, as Obama put it, a “charter of negative liberties” because the framers feared government’s propensities toward injustice and excess. Its power to act against us was thus sharply limited in various specified ways. In terms of giving, however, government has at its disposal only what we provide it. It cannot give to some without taking from others.
Representation-reinforcement is factually suspect in any event: It is anything but clear “that people at the lower end of the economic spectrum need assistance to be represented adequately”—or that the provision of welfare is apt to make them better citizens as opposed to reducing them “to a condition of dependency so that they are not the active and independent political agents that they ought to be.” But new rights create new obligations: winners and losers. Consequently, representation-reinforcement is an internally contradictory concept, one Bork says “tends to devour itself” because “it calls upon the judiciary to deny representation to those who have voted a particular way to enhance the representation of others.” What is “reinforced,” he warns, “is less democratic representation than judicial power and the trend toward redistribution of goods.”
Of course, the power to remake American society ever more radically has become ever more appealing to judges in the decades since Judge Bork was denied his rightful place on the watch. Our magistrates are “Olympians on the March,” to borrow from his memorable 2004 essay in The New Criterion. Drawing on the political philosopher Kenneth Minogue, Bork explains, “Olympianism is the project of an intellectual elite that believes it enjoys superior enlightenment and that its business is to spread this benefit to those living in the lower slopes of human achievement.”
The Supreme Court has sadly become its “heavy artillery and panzer divisions in the culture war,” reducing constitutional law from an intellectual discipline to “a series of political impulses.”
A Time to Speak reminds us, yet again, that Robert Bork has been this nation’s most eloquent and compelling Cassandra. Whether America rediscovers and retains what has made it great depends on whether we finally listen, and look within.
We’ve lost a giant, but thankfully he left us a trove.
Amid the continuing unrest in Egypt, President Mohamed Morsi of the Muslim Brotherhood has now decided to bifurcate the referendum on the proposed sharia constitution. The voting will go forward as scheduled this Saturday, but only in ten governorates. The rest of the country will then vote the following Saturday, December 22.
The whole point of Morsi’s presidency, the point of everything he’s done for the last five months, is the implementation of a sharia constitution. As I explain in Spring Fever: The Illusion of Islamic Democracy (soon to be published in paperback), that is what Morsi and the Brotherhood promised to do during the campaign leading to his election as president. Sharia implementation is the goal behind his seizures of dictatorial powers: In August, Morsi awarded himself legislative authority in the wake of the then-ruling junta’s dissolution of the elected, Islamist-dominated parliament in order to ensure that the Islamist agenda proceeded. In late November, he declared his “sovereign” acts immune from judicial review specifically to protect the Islamist-dominated “constituent assembly” that was writing the sharia constitution from being invalidated by the courts.
The ongoing, occasionally lethal controversy over the constitution brings into sharp relief the fraud that is the “Arab Spring” narrative. Morsi, an authoritarian, anti-democratic, sharia hardliner, is lauded as Egypt’s “democratic” ruler because he won a popular election. He is desperate to put his illiberal, liberty-strangling, anti-democratic sharia constitution to a popular vote because he believes that he will win. And with good reason: before Mubarak fell, polling showed that upwards of two-thirds of Egyptians wanted to live under sharia rule; and since Mubarak fell, Islamic supremacists have won popular elections by comfortable margins.
By contrast, Morsi’s opposition — a mixed bag of secularists, leftists, libertarians, authentically moderate Muslims, and religious minorities — condemns the draft constitution as a betrayal of their “democratic” revolution … but the last thing they want is for that proposition to be tested at the ballot box. They rail against Morsi’s power grabs, against the lack of “societal consensus” in the sharia constitution, and against the purportedly invalid constitution-writing “process” because they are desperate to prevent a referendum they are almost certain to lose. Despite the Western media’s mirage of a “democratic” upheaval led by youthful, secular Facebook revolutionaries and such darlings of the Left as Mohammed ElBaradei, the non-Islamists know they are the minority. They also know the West’s democracy fetish is such that a constitution that wins a popular election will be hailed as a triumph of democracy, no matter how much it undermines human rights.
Morsi is bifurcating the referendum because it will help the sharia constitution win. Under Egyptian law, the judiciary is supposed to monitor elections. Because the judiciary is one of the remaining institutions in which the secularists and the old regime enjoy at least a toe-hold, many judges have threatened to boycott the referendum. By staggering the election, fewer judges will be needed for monitoring on each day of voting. In addition, in a bifurcated election, the strong Brotherhood network — unmatched by anything the opposition can muster — will concentrate its full get-out-the-vote effort in smaller areas on each election day. When the parliamentary elections were similarly staggered, the Islamists won by an overwhelming 4-to-1 margin.
According to al-Ahram, the Islamist regime’s justice minister, Ahmed Mekki, has told the paper (for its Arabic website) that Egyptian president Mohamed Morsi would be willing to postpone the referendum on the new constitution if opposition forces agree to negotiations without preconditions. The sharia-rife constitution, the haste with which the Muslim Brotherhood-controlled government drafted it and is trying to ram it through, and Morsi’s dictatorial declaration — designed to insulate the new constitution from judicial scrutiny — have sparked violent protests and counter-protests in which at least six people have been killed and dozens more injured.
At least for public consumption, the positions of the two sides have hardened. Pushed by President Obama to entertain “dialogue,” Morsi has said he would meet with opposition leaders on Saturday (i.e., tomorrow) but that the referendum would proceed as scheduled on December 15. Mohamed ElBaradei, the principal voice of the secular opposition, has urged a boycott of the meeting with Morsi and demanded both the retraction of Morsi’s declaration and of the draft constitution.
Meantime, while thousands of the regime’s adversaries are again rallying today, thousands more Islamist supporters of the Brotherhood and a sharia constitution have been fired up in the mosques. Things are very tense, to say the least.
I’ve now been in a few debates about Egypt’s new draft constitution, which will be put to a vote next week — in fact, I debated Abbas Barzegar, an assistant professor of Islam at Georgia State University, on Sean Hannity’s radio show on Monday. As one would easily predict, it has become a key talking point of the constitution’s Islamist supporters that, in so far as concerns sharia (Islam’s societal framework and legal code), the new constitution marks no change. The new draft simply repeats, it is said, the old Sadat/Mubarak-era constitution’s stipulation that the “principles of sharia” govern.
This is an absurd claim. Of course, that won’t stop them from trying to make it fly … or stop the Western media, in the throes of spring fever, from repeating their assertions.
The new constitution’s provisions have been well summarized by Professor Rubin, whose post — which addresses this subject in addition to several other important ones — I highly recommend. I want to begin by stepping outside the substance of the constitution, though. Note that the non-Islamist factions resigned from the constituent assembly (the body tasked with drafting the new constitution) in explicit protest over its transparent Islamist character. Does anyone really think this would have happened if the new constitution were not a sharp turn toward Islamic supremacism and its attendant oppression of women, religious minorities, homosexuals, and other non-Islamists?
Now, back to substance. Yes, article 2 of the draft repeats the former constitution’s command that “Principles of Islamic Sharia are the principal source of legislation.” This repetition leads Islamists and their apologists to contend that adherence to sharia won’t be any more strict under Islamist rule than it was during Mubarak’s reign — notwithstanding that right now, even before the new constitution has been formally adopted, there is already far more sharia governance (and oppression) than there was before the old regime fell.
In reality, the new constitution’s repetition of article 2 is just the beginning of the discussion, not, as the Muslim Brotherhood’s apologists would have it, the end. From the premise of sharia principles as the core, the new constitution proceeds with three radical innovations.
First is the way the new constitution fleshes out what is meant by “principles.” The term will be governed by the four classical schools of Sunni Islamic jurisprudence. These four schools consider virtually all questions to have been settled a millennium ago. This means Islamic reformers and modernizers will be foreclosed from effecting any softening of classical sharia’s adhesive provisions. To be sure, the Brotherhood may not reinstate the stoning of adulterers and other cruel hudud penalties tomorrow. But that will be based on a political calculation — as my friend David Goldman has observed, Egypt is a financial basket case and can’t afford to give irrevocable offense to its Western white knights (assuming they are still capable of being offended by anything Islamists do). The point is that there will be no legal retreat on classical sharia, and gradually it will become ever more repressive.
That is also the guaranteed outcome of the second innovation: The new constitution appoints al-Azhar University, the ancient seat of Sunni learning, as the final arbiter of what sharia means. This thrusts the scholars of that institution (whose alumni include Omar Abdel Rahman, the Blind Sheik of World Trade Center bombing fame, and Sheik Yusuf al-Qaradawi, the Muslim Brotherhood’s top jurist) into the full range of Egyptian life and affairs, since there is no aspect of human endeavor that sharia would not control.
As we awaken to the spectacle of yesterday’s Palestinian coup in the General Assembly — symptomatic of a colossal failure of American leadership — it is worth underscoring the important op-ed authored by former Attorney General Michael Mukasey and Touro Institute’s Anne Bayefsky in Thursday’s Wall Street Journal.
The piece recounts Susan Rice’s unsavory record as U.S. ambassador to the United Nations.
Ms. Rice, of course, has recently gained notoriety — infamy, really — for her appalling performance as megaphone for the Obama administration’s effort to mislead the country into believing that a protest over an obscure video about Islam’s prophet Mohammed somehow led to the September 11 Benghazi massacre of four Americans, including Christopher Stevens, the U.S. ambassador to Libya.
In reality — as the administration well knew when Rice was dispatched to misinform Americans five days after the slaughter — there was no protest. The atrocity was a coordinated terrorist attack, a siege of seven-plus hours during which the commander-in-chief failed to deploy readily available military assets to protect Americans.
It was politically expedient to lie because Obama’s Libya policy created the conditions for a jihadist assault on our personnel. It was also expedient to lie because the attack, by al-Qaeda-connected terrorists, contradicted the Obama campaign theme that the president’s order to kill Osama bin Laden had decimated al-Qaeda.
The ambitious Amb. Rice agreed to do the campaign’s dirty work.
The incident in and of itself should be disqualifying for Rice’s quest to become secretary of State — imagine telling your boss right after the worst malfeasance of a checkered career that you deserved a big promotion. Judge Mukasey and Ms. Bayefsky, however, do the yeoman’s work of marshaling for us, and for the senators who could be asked to confirm Ms. Rice, the facts of that checkered career.
There is her remarkable propensity not to show up at work, including in crucial moments like Israeli Prime Minister Benjamin Netanyahu’s speech to the General Assembly on Iran’s pursuit of nuclear weapons — a powerful signal of Obama’s distancing of our government from a beleaguered ally, a signal communicating the emptiness of the administration’s occasional lip service about “having Israel’s back.”
When she is not absenting herself, there is what the authors aptly call her “inconsequential presence” — of which yesterday’s lopsided U.S. defeat, with several European nations joining the Islamic bloc in granting the Palestinians UN observer status, is only the latest indicator. Under Rice’s stewardship, the U.S. has joined the atrocious UN Human Rights Council and abided its doubling down on its obsessive condemnations of Israel. Even Rice’s grudging votes in favor of Israel on the Security Council have been laced with demagogic Islamist talking points about Israel’s alleged international law violations. And she has been ineffective, at best, in mounting international support for sanctions against Iran.
Moreover, to get back to Benghazi, Mukasey and Bayefsky point out that Rice is on the Security Council’s “Al-Qaeda Sanctions Committee.” That body has expressly acknowledged the jihadist terror network’s operations in eastern Libya. Yet, knowing what she knows, she still energetically mouthed the administration’s “Mohammed movie” line on the massacre.