Commentary Magazine


Posts For: January 2013

Making a Federal Case Out of “The”

The D.C. Circuit’s 46-page opinion in Canning v. NLRB (ably analyzed by John Steele Gordon) is a master class for law students, legislators, and lawyers–an illustration of the first rule of constitutional interpretation: before you refer to legislative or judicial history, or how a “living” Constitution might read if you could re-write it, or the words in invisible ink in the “penumbras”–look at the words as written, and determine what they meant to those who adopted them.

The Recess Appointments Clause provides the “President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate.” Canning contended “the Recess” is the period between sessions of the Senate, when it is by definition unavailable to receive and act on nominations from the president. The NLRB argued the president could act during any break in the Senate’s business (and determine for himself when a sufficiently long one occurred). The court held the NLRB failed to note that the Constitution references “the Recess,” not “recesses.” Here is the key portion of the opinion:

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The D.C. Circuit’s 46-page opinion in Canning v. NLRB (ably analyzed by John Steele Gordon) is a master class for law students, legislators, and lawyers–an illustration of the first rule of constitutional interpretation: before you refer to legislative or judicial history, or how a “living” Constitution might read if you could re-write it, or the words in invisible ink in the “penumbras”–look at the words as written, and determine what they meant to those who adopted them.

The Recess Appointments Clause provides the “President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate.” Canning contended “the Recess” is the period between sessions of the Senate, when it is by definition unavailable to receive and act on nominations from the president. The NLRB argued the president could act during any break in the Senate’s business (and determine for himself when a sufficiently long one occurred). The court held the NLRB failed to note that the Constitution references “the Recess,” not “recesses.” Here is the key portion of the opinion:

When interpreting a constitutional provision, we must look to the natural meaning of the text as it would have been understood at the time of the ratification of the Constitution. [Citation]. Then, as now, the word “the” was and is a definite article. See 2 Samuel Johnson, A Dictionary of the English Language 2041 (1755) … Unlike “a” or “an,” that definite article suggests specificity. As a matter of cold, unadorned logic, it makes no sense to adopt the Board’s proposition that when the Framers said “the Recess,” what they really meant was “a recess.” This is not an insignificant distinction. In the end it makes all the difference.

 Six times the Constitution uses some form of the verb “adjourn” or the noun “adjournment” to refer to breaks in the proceedings of one or both Houses of Congress. … Not only did the Framers use a different word, but none of the “adjournment” usages is preceded by the definite article. All this points to the inescapable conclusion that the Framers intended something specific by the term “the Recess,” and that it was something different than a generic break in proceedings.

The court went on to address the Federalist Papers, the purpose of the provision, the history of its use, the opinions in other circuits, and other legal materials, but the crux of the opinion was its starting point–the actual words of the provision in dispute, and what they meant to those who enacted them.  

It is worth remembering that the history of American constitutional law shows that even a semi-colon or comma can affect the meaning of a provision. In The Citizen’s Constitution: An Annotated Guide, Seth Lipsky describes the battle over the comma after the word “Excises” in Article 1, Section 8. That provision gives Congress the power to “lay and collect Taxes, Duties, Imposts and Excises, to pay Debts and provide for the common Defense and general Welfare of the United States.” Lipsky recounted that:  

One of the wiliest of the founders, Gouverneur Morris, plotted at the Convention in Philadelphia to change this comma to a semi-colon. He wanted to alter the meaning of the sentence to create, in the clause following this comma, a separate and unlimited [general welfare] power. In the sentence as it currently exists — its original form — the grammar is that the words following the comma are not a general grant of power … but a limitation on the taxing power. … [Morris’s] plot to change the text by adding a dot point over the comma was discovered and foiled by the other founders, a point on which Albert Gallatin testified to the House of Representatives in 1798.

President Obama has occasioned a large number of constitutional moments, as he sought to make the Commerce Clause a power to regulate decisions not to engage in commerce; established a new “shared responsibility payment” power to uphold the Obamacare penalty as a “tax”; argued he can ignore legislation regarding an individual’s passport if he determines it could affect the Middle East “peace process”; and issued executive orders on things he previously said he lacked presidential power to mandate. In Canning, he sought a power to make appointments whenever he determined the Senate was in “a recess,” even though it was not in “the Recess.” The case turned on the Constitution’s use of the definite article “the” and the singular word “Recess.”

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Obama Flunks Mali’s Lesson

After criticizing French plans to counter Al Qaeda-affiliated terrorists in northern Mali, the Obama administration is slowly increasing its support to the French, as the French military conducts a mission vital to U.S. interests as well as their own.

Mali is a beautiful country, one which I visited as a tourist a decade ago. (My thoughts from the time are encapsulated in this New Republic article). It was also the Muslim majority country which Freedom House had, for years, rated as most free. Despite being one of the poorest countries on earth and democratic, Mali was for years ignored by the United States.

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After criticizing French plans to counter Al Qaeda-affiliated terrorists in northern Mali, the Obama administration is slowly increasing its support to the French, as the French military conducts a mission vital to U.S. interests as well as their own.

Mali is a beautiful country, one which I visited as a tourist a decade ago. (My thoughts from the time are encapsulated in this New Republic article). It was also the Muslim majority country which Freedom House had, for years, rated as most free. Despite being one of the poorest countries on earth and democratic, Mali was for years ignored by the United States.

Only with last year’s coup—and the acceleration of insurgency fueled by loose weapons from Libya—has Mali come to America’s strategic notice. Simply put, with the consolidation of Al Qaeda in the Islamic Maghreb’s presence in northern Mali, officials on both sides of the Atlantic recognize the danger of a vacuum.

Obama may congratulate himself on once again leading from behind, but his actions on Mali only highlight the fact that the president does not understand—or care—that far from resolving the problem, he is on the verge of making it worse. Perhaps France, in conjunction with contingents from some neighboring West African states, will contain the problems in Mali, but Obama does not recognize that by creating a vacuum in Afghanistan, he will be setting the stage for further Al Qaeda empowerment. No one will be able to rely on neighboring states when those states are Iran and Pakistan. And while India should take a greater regional role, it is too inward looking—and the logistical hurdles too great for landlocked Afghanistan—for it to take the actions it should to help buttress Afghanistan.

With the United States abdicating its international responsibilities so that Obama can claim to be true to his own political schedule, the question is not who will fill the vacuum Obama helps to create in Afghanistan, but rather who will be the victims of Al Qaeda’s return to Afghanistan.

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Illustrating the Link Between Anti-Zionism and Anti-Semitism

The Commentator draws our attention today to the fact that Britain’s Sunday Times celebrated the anniversary of the liberation of Auschwitz—the date that is observed outside of Israel and the United States as Holocaust Memorial Day—by publishing a cartoon depicting Israeli Prime Minister Benjamin Netanyahu as a hook-nosed thug cementing helpless Arab victims into a wall whose bricks are lined with blood rather than mortar. This is an apt reminder of just how low Europe’s intellectual elites have sunk and how deep the taint of anti-Semitism is baked into the political culture of the West these days. As the Commentator’s Raheem Kassam points out, in Britain as in many other places, the Holocaust is not a historical lesson of the product of 2,000 years of anti-Semitism and Jewish powerlessness as it is an excuse to depict Israel as a Nazi-like entity.

The cartoon will be defended as fair comment about Israel’s security fence that the Palestinians and their foreign cheerleaders depict as a war crime. That this strictly defensive measure was made necessary by the Palestinians’ campaign of suicide bombings that cost the lives of a thousand Jews in the last decade goes unmentioned. The willingness of Israel-bashers to appropriate the Holocaust to promote a new generation of anti-Semitic imagery is rooted in a worldview in which the actions of the Palestinians, or their consistent refusal to make peace, are irrelevant. If even a fence to keep out suicide bombers can be seen as criminal then it is obvious that no terrorist outrage or act of hateful incitement (such as the Egyptian president’s belief that Israelis are the “descendants of apes and pigs”) is worthy of censure so long as Israelis are standing up for themselves and refusing to be slaughtered as the Jews of Europe were 70 years ago.

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The Commentator draws our attention today to the fact that Britain’s Sunday Times celebrated the anniversary of the liberation of Auschwitz—the date that is observed outside of Israel and the United States as Holocaust Memorial Day—by publishing a cartoon depicting Israeli Prime Minister Benjamin Netanyahu as a hook-nosed thug cementing helpless Arab victims into a wall whose bricks are lined with blood rather than mortar. This is an apt reminder of just how low Europe’s intellectual elites have sunk and how deep the taint of anti-Semitism is baked into the political culture of the West these days. As the Commentator’s Raheem Kassam points out, in Britain as in many other places, the Holocaust is not a historical lesson of the product of 2,000 years of anti-Semitism and Jewish powerlessness as it is an excuse to depict Israel as a Nazi-like entity.

The cartoon will be defended as fair comment about Israel’s security fence that the Palestinians and their foreign cheerleaders depict as a war crime. That this strictly defensive measure was made necessary by the Palestinians’ campaign of suicide bombings that cost the lives of a thousand Jews in the last decade goes unmentioned. The willingness of Israel-bashers to appropriate the Holocaust to promote a new generation of anti-Semitic imagery is rooted in a worldview in which the actions of the Palestinians, or their consistent refusal to make peace, are irrelevant. If even a fence to keep out suicide bombers can be seen as criminal then it is obvious that no terrorist outrage or act of hateful incitement (such as the Egyptian president’s belief that Israelis are the “descendants of apes and pigs”) is worthy of censure so long as Israelis are standing up for themselves and refusing to be slaughtered as the Jews of Europe were 70 years ago.

In the face of slanders such as this cartoon about Netanyahu, the facts are almost beside the point. In order for it to be considered a defensible point of view about the Middle East, you’d have to believe the artist and the editors who condoned its publication know nothing of why Israel built a security fence or that the terrorist campaign that it was built to stop was preceded by repeated Israeli offers of a Palestinian state that were refused and answered with war. Can it be that no one at the Sunday Times is aware of the fact that the Palestinians again refused (or rather fled from it to avoid answering) an even more generous peace offer in 2008 and have consistently refused to return to the negotiating table since then despite an Israeli settlement freeze, Netanyahu’s acceptance of a two-state solution and pleas for them to talk without preconditions? Those are mere details to be ignored when the big picture you are trying to draw is of an evil Israel and its evil leader hurting the innocent.

While many have seized on the fact that Netanyahu didn’t do as well as originally expected in this last week’s election as somehow being proof that Israelis are rejecting his views about the Palestinians, this is nonsense. The point about the election is that Netanyahu’s basic views about the peace process are now so clearly endorsed by a broad consensus that encompasses not only the Israeli right but also the center and even some on the left that the election was decided on other issues. Though some would like it to be different, there’s actually very little to differentiate Netanyahu’s foreign policy views from those of Yair Lapid or even Labor’s Shelly Yacimovich or Tzipi Livni, who actually campaigned on a platform of reviving the peace process.

The point is most Israelis have long given up on the Palestinians, whom they rightly understand to be light years away from the sort of sea change that would allow them to recognize the legitimacy of a Jewish state no matter where its borders were drawn. So, too, do they no longer listen to a Europe where blood libels like the Sunday Times cartoon are seen as commonplace and just a more sophisticated version of Morsi’s hate speech.

Israel is not perfect and its politicians can be criticized. But this commemoration of Europe’s Holocaust Memorial Day with such slanders shows the inability of those who believe Israel has no right to exist or to defend itself to discuss the Israeli-Palestinian dispute without resorting to imagery like that of the cartoon or Morsi’s imprecations. Though Israel-bashers claim labeling them as anti-Semites is unfair, their reflexive use of Nazi-like blood libels illustrates the link between anti-Zionism and anti-Semitism better than any argument their opponents can muster.

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Pakistan Should Fear U.S. Afghan Pullout

When U.S. troops withdraw from Afghanistan “on schedule,” Afghanistan will revert to civil war. White House and Pentagon officials may have convinced themselves that their transition mirrors that in Iraq, and that Iraq’s transition was a success, but to Afghans, the U.S. strategy is a cookie-cutter repeat of the Soviet withdrawal. We have the Afghan Local Police, and the Soviets had similar local militias. We hope that we can leave behind agents of influence in the government, and the Soviets tried the same tactic.

The Soviet-era dictator Najibullah managed to hold on to power for three years after the Red Army’s withdrawal, but that was only because of the Soviet ‘peace dividend’: The Soviet Union provided Najibullah with almost $3 billion a year and equipment it withdrew from Poland, Czechoslovakia, and East Germany. Only when the money ran out did Najibullah fall. The same will happen with Hamid Karzai. Even the most sobering World Bank reports regarding what the international community must do to keep Afghanistan afloat assume that Afghanistan will have a functioning mining industry, but insecurity and poor infrastructure have hampered even the Chinese, who do not care as much if they lose civilian contractors.

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When U.S. troops withdraw from Afghanistan “on schedule,” Afghanistan will revert to civil war. White House and Pentagon officials may have convinced themselves that their transition mirrors that in Iraq, and that Iraq’s transition was a success, but to Afghans, the U.S. strategy is a cookie-cutter repeat of the Soviet withdrawal. We have the Afghan Local Police, and the Soviets had similar local militias. We hope that we can leave behind agents of influence in the government, and the Soviets tried the same tactic.

The Soviet-era dictator Najibullah managed to hold on to power for three years after the Red Army’s withdrawal, but that was only because of the Soviet ‘peace dividend’: The Soviet Union provided Najibullah with almost $3 billion a year and equipment it withdrew from Poland, Czechoslovakia, and East Germany. Only when the money ran out did Najibullah fall. The same will happen with Hamid Karzai. Even the most sobering World Bank reports regarding what the international community must do to keep Afghanistan afloat assume that Afghanistan will have a functioning mining industry, but insecurity and poor infrastructure have hampered even the Chinese, who do not care as much if they lose civilian contractors.

So, as soon as the money dries up—and it will happen faster than Karzai realizes—the Afghanistan National Army will implode. While the Pentagon points to metrics of numbers trained, it does not speak as often about retention. Logistics, triage, and intelligence remain challenges absent U.S. oversight. And while the Afghans have fought ably against Taliban assaults in Kabul and the Afghan special forces are excellent, Afghans have never had an opportunity to prove what they can do (or cannot do) when they are running the Corps level alone. The fact that regional states have reactivated their residual links to warlords should be a sign no one in the White House should ignore.

When the chaos starts, it will be worse in some respects. Just as with the Taliban’s rise in the 1990s, the main victories will not be on the battlefield so much as the result of momentum, and so will catch the West by surprise. During the Soviet era and its aftermath, the fighting was limited to Afghanistan itself. The next round of civil war likely will not be. Pakistan should get ready: It will soon learn the meaning of blowback. There is no doubt that the Pakistanis will face blowback for their support of radicals and Taliban terrorism. The issue is not that various Taliban groups will take their fight into Pakistan. There, the Pakistanis will continue to contain the Taliban’s challenge largely to the tribal region. Rather, with the Americans gone, there will be no more restraint on the reconstituted Northern Alliance. Years ago, I had a conversation with one in a position to actually implement what he said: He argued that the only way to get the Pakistanis to stop interfering in Afghanistan was not to meet them at the diplomatic table or ply them with aid and incentives, but to respond in kind. If a bomb goes off in Kabul, he suggested, then one should go off in Lahore. And if an attack occurs in Jalalabad, then there should be two such attacks in Rawalpindi.

When, back in 1997, I was a teaching assistant for an American political history course at Yale University, I took a colleague’s suggestion and asked the students in my section what their earliest political memory was: The earliest any of the 18-21 year olds had? Michael Dukakis in 1988. Americans’ political memory seldom extends back more than a decade. In Afghanistan and Pakistan, it is longer. Many Afghans and Pakistanis remember that, throughout the 1950s and early 1960s, it was the Afghans who were the aggressors across the border, tearing down Pakistani flags and raising the banner of Pushtunistan. This time, history will repeat, but with far greater lethality against ordinary citizens. Perhaps Pakistan’s Inter-Service Intelligence will rue the day they decided to send terrorists into Afghanistan.

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Note to Palin: GOP Needs More than a Mouth

As expected, Fox News cut its ties with Sarah Palin on Friday. The former Alaska governor and Republican vice presidential candidate had worn out her welcome at the network over the last year and her brand had lost a lot of its pizzazz after sitting out the 2012 presidential contest and new conservative voices had come to the fore. Though she remains a cult favorite among some on the right and a convenient punching bag for the left, in a party with a large cast of rising stars like Marco Rubio, Bobby Jindal, Chris Christie, Paul Ryan and with Rand Paul looking to expand his appeal beyond his father’s libertarian base, her hold on the affections of the Tea Party and/or the GOP base looks tenuous at best. It’s likely that Fox decided she was yesterday’s news.

Palin is taking the blow with her customary defiance. In her first interview since the announcement, she channeled John Paul Jones as she told Breitbart News that she “hadn’t yet begun to fight.”  She spoke about the need for conservatives to go outside their comfort zone and to stop “preaching to the choir.” That’s good advice, though it’s hard to see how anyone as polarizing as Palin is going to get moderates to listen to anything she has to say.

While it’s not clear what her next step is, anyone who writes her off completely is bound to wind up looking silly. She lost a lot of her credibility when she resigned her governorship and then made a number of puzzling career choices, which did nothing but further marginalize her as a serious political figure. But the raw political talent that dazzled so many conservatives in 2008 is still there, even if she spent the last four years acting like a reality TV show star and alienating many people who once wished her well. The problem for Palin is not in finding another platform for her views (something that is all but a given in this era of social media and proliferating political websites) but that if she still harbors an ambition to be more than just another talking head, she’s going to have to something more than talk.

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As expected, Fox News cut its ties with Sarah Palin on Friday. The former Alaska governor and Republican vice presidential candidate had worn out her welcome at the network over the last year and her brand had lost a lot of its pizzazz after sitting out the 2012 presidential contest and new conservative voices had come to the fore. Though she remains a cult favorite among some on the right and a convenient punching bag for the left, in a party with a large cast of rising stars like Marco Rubio, Bobby Jindal, Chris Christie, Paul Ryan and with Rand Paul looking to expand his appeal beyond his father’s libertarian base, her hold on the affections of the Tea Party and/or the GOP base looks tenuous at best. It’s likely that Fox decided she was yesterday’s news.

Palin is taking the blow with her customary defiance. In her first interview since the announcement, she channeled John Paul Jones as she told Breitbart News that she “hadn’t yet begun to fight.”  She spoke about the need for conservatives to go outside their comfort zone and to stop “preaching to the choir.” That’s good advice, though it’s hard to see how anyone as polarizing as Palin is going to get moderates to listen to anything she has to say.

While it’s not clear what her next step is, anyone who writes her off completely is bound to wind up looking silly. She lost a lot of her credibility when she resigned her governorship and then made a number of puzzling career choices, which did nothing but further marginalize her as a serious political figure. But the raw political talent that dazzled so many conservatives in 2008 is still there, even if she spent the last four years acting like a reality TV show star and alienating many people who once wished her well. The problem for Palin is not in finding another platform for her views (something that is all but a given in this era of social media and proliferating political websites) but that if she still harbors an ambition to be more than just another talking head, she’s going to have to something more than talk.

Palin’s shrinking fan base still hopes she will return to the fray in 2016. Her spring tour of the East Coast in 2011 just as the presidential race was starting demonstrated that she hadn’t lost her star power even if she seemed as unprepared as ever to face the scrutiny of a hostile press. But as the Republican Party licks its wounds from its second defeat at the hands of Barack Obama, most of those who will be considered for the job of leading it back to the White House have one thing in common that Palin lacks: job resumes that show that they either have the guts to fight the Democrats in Washington as Rubio, Ryan and Paul are doing or a record of showing how Republicans can run a state on conservative principles, as Jindal and Christie are proving.

Each of them has different virtues as well as different faults, but all have spent the time since Obama was first elected on the frontlines of the battle against liberalism. It may be that not having a job is something of an advantage in a presidential campaign, but as the years go by the more Palin has taken on the aspect of a celebrity rather than a politician, let alone a political thinker. Celebrity counts a lot in our day and age, but it cannot transform a person who has done everything in her power not to be taken seriously into the sort of person whom Republicans, let alone the general electorate, will trust with the fate of the nation.

Sarah Palin is still a relatively young woman and has a long career of advocacy in front of her. But if she really wants to get back in the political arena, at some point she’s going to have to demonstrate that she’s capable of doing something more than run her mouth. Facebook postings and Internet videos don’t compare well to running a state or standing up to the Democrats in Congress. Unless she decides to get back in the fight somewhere other than on the radio or TV, the odds are she’s going to spend 2016 and every other subsequent presidential year the same place she spent 2012: on the sidelines with fewer and fewer people paying attention to what she says or does.

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Will Turkey Join Iran and North Korea on the Terror Finance List?

Jonathan Schanzer, vice president for research at the Foundation for Defense of Democracy and an expert on the confluence of money laundering and terrorism, drew my attention to an important story getting lost in the shuffle of confirmation hearing and more violent stories from the Middle East:

The Turkish parliament is scrambling to avert action by the Financial Action Task Force (FATF), an international body meant to combat money laundering and terror financing, which would place Turkey on its blacklist if it does not adopt legislation preventing terror finance within a month.

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Jonathan Schanzer, vice president for research at the Foundation for Defense of Democracy and an expert on the confluence of money laundering and terrorism, drew my attention to an important story getting lost in the shuffle of confirmation hearing and more violent stories from the Middle East:

The Turkish parliament is scrambling to avert action by the Financial Action Task Force (FATF), an international body meant to combat money laundering and terror financing, which would place Turkey on its blacklist if it does not adopt legislation preventing terror finance within a month.

Hürriyet Daily News quotes Justice Minister Sadullah Ergin:

There are two countries on the black list of the FATF: Iran and North Korea. If Turkey fails to adopt the legislation by Feb. 22, the Turkish economy may face serious problems. In such a case money transfers from and to Turkey would be possible only after checks by the FATF’s examination mechanism. This mechanism would cause serious problems for Turkey’s exports, imports and hot money flow, which could lead to negative impacts on general parameters of our economy.

The only thing sadder than the fact that Turkey, which claims to be an ally, must be dragged kicking and screaming to stop financing terror is the fact that 150 congressmen have endorsed a country that may soon join the Islamic Republic of Iran and North Korea on the terror financing blacklist. When President Obama described Turkey’s leader Recep Tayyip Erdoǧan as a personal friend, it is time to ask whether Obama truly understands the differences between ally and adversary.

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Scott Shane’s Shame

John Kiriakou, the former CIA operative who pled guilty to one count of leaking information, was sentenced on Friday to 30 months in prison. I have known John for almost two decades since I was a State Department intern in Bahrain at a time he served there. Even though we have often been on different sides of the issues, work has often led us to cross paths and, because of mutual friends, we have also seen each other socially on sporadic occasion. While I do not defend the crime to which Kiriakou has plead guilty and has now been sentenced, as often in these matters, I suspect the case is more complicated than that depicted in the press. With so much material classified, it can be near impossible to present a defense if most of the material upon which the defense would be based cannot be used because it is rightly or wrongly classified. There certainly seems to be ample evidence that the prosecution was selective. While that does not mitigate the wrong, it should raise questions if the FBI identified other leaks in the same case involving far more material released by another but which the CIA chose not to pursue.

The public learned more background about both Kiriakou and the case on January 6, when New York Times reporter Scott Shane published a major piece describing the case, and how the FBI nabbed Kiriakou. From the first paragraph, it is clear that Kiriakou helped Shane with the story. While The New York Times’ ombudsman has written about issues surrounding a reporter writing a story about a case in which he is a participant, if my understanding is correct, the Times’ coverage omits one crucial detail: Because he wanted to ensure a scoop, Shane apparently broke an agreement to embargo the story until after Kiriakou’s sentencing, putting at risk the ability of Kiriakou’s family—including very young children—to see their father.

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John Kiriakou, the former CIA operative who pled guilty to one count of leaking information, was sentenced on Friday to 30 months in prison. I have known John for almost two decades since I was a State Department intern in Bahrain at a time he served there. Even though we have often been on different sides of the issues, work has often led us to cross paths and, because of mutual friends, we have also seen each other socially on sporadic occasion. While I do not defend the crime to which Kiriakou has plead guilty and has now been sentenced, as often in these matters, I suspect the case is more complicated than that depicted in the press. With so much material classified, it can be near impossible to present a defense if most of the material upon which the defense would be based cannot be used because it is rightly or wrongly classified. There certainly seems to be ample evidence that the prosecution was selective. While that does not mitigate the wrong, it should raise questions if the FBI identified other leaks in the same case involving far more material released by another but which the CIA chose not to pursue.

The public learned more background about both Kiriakou and the case on January 6, when New York Times reporter Scott Shane published a major piece describing the case, and how the FBI nabbed Kiriakou. From the first paragraph, it is clear that Kiriakou helped Shane with the story. While The New York Times’ ombudsman has written about issues surrounding a reporter writing a story about a case in which he is a participant, if my understanding is correct, the Times’ coverage omits one crucial detail: Because he wanted to ensure a scoop, Shane apparently broke an agreement to embargo the story until after Kiriakou’s sentencing, putting at risk the ability of Kiriakou’s family—including very young children—to see their father.

One can have their own opinion about Kiriakou’s actions and responsibilities, but when the government has bankrupted the family—and when the CIA has fired the wife in retaliation for the husband’s action, it would make a huge difference financially if because of a prosecutor’s spite, the family had to get to Alaska rather than drive to Pennsylvania.

I do not know where John will serve his sentence. But if a reporter depends upon his honor to win access to sources, it is a wonder that any source would talk to the New York Times.

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No One Should Mourn Eritrea’s Fall

Last week, chaos enveloped Asmara, Eritrea’s capital as renegade troops tried to overthrow President Isaias Afewerki. It is a pity they did not succeed. Dawit Giorgis, a visiting fellow at the Foundation for the Defense of Democracy (FDD), would disagree. In an analysis he penned for FDD, he explained:

Stability in Eritrea is crucial to the region. So far, the government seems to have resisted growing pressure from Islamists in Yemen and Saudi Arabia to radicalize Eritrea, the only non-Arab country along the Red Sea coast. But as the Horn of Africa, Gulf of Guinea and the porous borders of Northern Africa become a preferred routes for arms smuggling, the future of the country remains uncertain. Internal political disarray and tensions with Ethiopia could make Eritrea especially vulnerable to the Islamist influences exerting pressures in an increasing number of African countries. Iran is rumored to have established a military base along the coast, although there has been no confirmation of such reports from Washington, Jerusalem, or Tehran. Eritrea has denied the existence of such a base. 

He is right that Eritrea is increasing strategic, but stability in Eritrea is not something to desire. While two decades ago there was hope that Afewerki might be enlightened if not democratic, he has transformed Eritrea into a prison camp. Eritrea has the dubious honor, for example, of being the only country to score below North Korea in international rankings of press freedom.

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Last week, chaos enveloped Asmara, Eritrea’s capital as renegade troops tried to overthrow President Isaias Afewerki. It is a pity they did not succeed. Dawit Giorgis, a visiting fellow at the Foundation for the Defense of Democracy (FDD), would disagree. In an analysis he penned for FDD, he explained:

Stability in Eritrea is crucial to the region. So far, the government seems to have resisted growing pressure from Islamists in Yemen and Saudi Arabia to radicalize Eritrea, the only non-Arab country along the Red Sea coast. But as the Horn of Africa, Gulf of Guinea and the porous borders of Northern Africa become a preferred routes for arms smuggling, the future of the country remains uncertain. Internal political disarray and tensions with Ethiopia could make Eritrea especially vulnerable to the Islamist influences exerting pressures in an increasing number of African countries. Iran is rumored to have established a military base along the coast, although there has been no confirmation of such reports from Washington, Jerusalem, or Tehran. Eritrea has denied the existence of such a base. 

He is right that Eritrea is increasing strategic, but stability in Eritrea is not something to desire. While two decades ago there was hope that Afewerki might be enlightened if not democratic, he has transformed Eritrea into a prison camp. Eritrea has the dubious honor, for example, of being the only country to score below North Korea in international rankings of press freedom.

No effort should be spared to prevent Eritrea’s radicalization, and the extension of Saudi or Iranian influence in the region. But that Cold War should not be an excuse to forgive a regime that might possibly lay claim to be the world’s worst dictatorship.

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Is Turkey the New Pakistan?

Last week, while participating at a conference on Afghanistan at Fort Hood, I met some U.S. officers who served in Turkey a bit over a decade ago. While they clearly loved their time in Turkey, they noted how many of their Turkish counterparts had quietly fled the army and Turkey itself over the past few years. Many disagree with the Islamism which Turkish Prime Minister Recep Tayyip Erdoǧan, and fear his arbitrary justice, as well as the blind eye so many in Europe and our own Foggy Bottom who care little so long as the victims are soldiers.

The flight of old guard Turkish officers reminds me of the flight of Pakistani officers in the wake of the 1971 loss of East Pakistan/Bangladesh when Gen. Zia ul-Haq, who came to power in 1978, accelerated Islamization as a means to build an overarching Pakistani identity. Many high-ranking Pakistani veterans, uncomfortable with religious radicalization, fled Pakistan. Whereas the Turkish military, at least until a few years ago, served as the bulwark against Islamic radicalism in society, the Pakistani military—under which Pakistani intelligence falls—became the catalyst for radicalization. Several decades later, Pakistani is a state sponsor of terrorism in all but name.

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Last week, while participating at a conference on Afghanistan at Fort Hood, I met some U.S. officers who served in Turkey a bit over a decade ago. While they clearly loved their time in Turkey, they noted how many of their Turkish counterparts had quietly fled the army and Turkey itself over the past few years. Many disagree with the Islamism which Turkish Prime Minister Recep Tayyip Erdoǧan, and fear his arbitrary justice, as well as the blind eye so many in Europe and our own Foggy Bottom who care little so long as the victims are soldiers.

The flight of old guard Turkish officers reminds me of the flight of Pakistani officers in the wake of the 1971 loss of East Pakistan/Bangladesh when Gen. Zia ul-Haq, who came to power in 1978, accelerated Islamization as a means to build an overarching Pakistani identity. Many high-ranking Pakistani veterans, uncomfortable with religious radicalization, fled Pakistan. Whereas the Turkish military, at least until a few years ago, served as the bulwark against Islamic radicalism in society, the Pakistani military—under which Pakistani intelligence falls—became the catalyst for radicalization. Several decades later, Pakistani is a state sponsor of terrorism in all but name.

Erdoǧan has made no secret of his desire to Islamize Turkey, and it is now clear that the country’s military is a shadow of its former self. Many of the generals who saw Turkey as a Western country or one that would honor the separation of mosque and state are now retired, in exile, or in prison. The few who remain are muzzled or Quislings. Most live in constant fear. Many of the new recruits and mid-rank officers are conservative Muslims if not Islamists. The Turkish intelligence service is also in the hands of political Islamists. While the State Department seldom criticizes Turkey’s role in the Middle East, many Kurds accuse Turkey of sponsoring outright Jihadist elements in Syria in an effort to counter secular ethnic nationalism among the Syrian Kurds. In a sense, Turkey is sponsoring Islamism abroad in the same way that Pakistan, fearing Pashtun nationalism, only allowed supply to groups in Afghanistan that made Islam their chief identity.

The parallels continue: While Zia ul Haq sponsored scores of madrasas to radicalize permanently Pakistan’s education system and, with time, its bureaucracy, Erdoǧan too now prioritizes the Imam Hatips, Turkey’s equivalent. The results will be felt in the decades to come. And while Zia used the state media to incite virulent anti-Western conspiracies and hatred, Erdoǧan seems intent to do the same thing as he consolidates control over the media and infuses it with anti-American and anti-Semitic poison.

How ironic it is that while the White House praises the “Turkish model,” Turkey itself seems intent on following the Pakistani model.  

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RE: Obama’s Power Grab Slapped Down

As a follow-up to my previous post, I have now read the decision, and it is a very strong one indeed.

All three judges agreed that the Senate is only in recess when it has adjourned sine die (Latin for “without a day,” i.e. without setting a date to meet again). This happens only at the end of the first session of a Congress when the second session will begin (as per Amendment XX, Sec. 2) on the next January 3rd, or at the end of the second session, when a newly elected Congress will assemble on that date.

After Congress has adjourned sine die, the President can only call it back into session.

Further, two of the judges ruled that in order for the President to exercise the recess appointment power, the vacancy must have come about during the recess following a sine die adjournment, not merely happen to exist during such a recess. The third judge, while expressing some sympathy for this interpretation, thought that it did not have to be reached in order to decide this case and therefore shouldn’t have been part of the decision.

Assuming this decision holds up—and it is powerfully argued—President Obama’s overreach here has had the effect of severely limiting his power to make recess appointments.

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As a follow-up to my previous post, I have now read the decision, and it is a very strong one indeed.

All three judges agreed that the Senate is only in recess when it has adjourned sine die (Latin for “without a day,” i.e. without setting a date to meet again). This happens only at the end of the first session of a Congress when the second session will begin (as per Amendment XX, Sec. 2) on the next January 3rd, or at the end of the second session, when a newly elected Congress will assemble on that date.

After Congress has adjourned sine die, the President can only call it back into session.

Further, two of the judges ruled that in order for the President to exercise the recess appointment power, the vacancy must have come about during the recess following a sine die adjournment, not merely happen to exist during such a recess. The third judge, while expressing some sympathy for this interpretation, thought that it did not have to be reached in order to decide this case and therefore shouldn’t have been part of the decision.

Assuming this decision holds up—and it is powerfully argued—President Obama’s overreach here has had the effect of severely limiting his power to make recess appointments.

It will be far more constrained than the power such presidents as Eisenhower and George W. Bush exercised. Indeed, since Congress is now in session most of the year, unless the vacancy occurs in the month of December, after Congress has gone home for the year, he no longer has any recess appointment power.

Serves him right.

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Where’s the Outrage on Morsi’s Hate?

As we noted last week, Egyptian President Mohammed Morsi’s attempt to explain his anti-Semitic and anti-American televised rant to a group of visiting American senators was that his claim that Israelis were “the descendants of apes and pigs” was taken out of context. That was bad enough but as it turns out the first reports about the meeting fell far short of conveying just how offensive Morsi’s rationalization of hate was. As Josh Rogin reported yesterday at Foreign Policy’s blog The Cable, Senator Chris Coons of Delaware who was at the meeting said the Morsi implied that Jewish control of the media was the reason why he was being called to account for his hate speech.

This calls into question not just the continuing U.S. aid to the Muslim Brotherhood government headed by Morsi but the determination of the senatorial delegation, including its leader John McCain, to continue their support for the flow of more than a billion dollars in American taxpayer money to a hatemonger. The details of the meeting make it hard to understand how McCain could continue to justify such American support when the explanation for the Morsi rant is actually worse than the original anti-Semitic smears.

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As we noted last week, Egyptian President Mohammed Morsi’s attempt to explain his anti-Semitic and anti-American televised rant to a group of visiting American senators was that his claim that Israelis were “the descendants of apes and pigs” was taken out of context. That was bad enough but as it turns out the first reports about the meeting fell far short of conveying just how offensive Morsi’s rationalization of hate was. As Josh Rogin reported yesterday at Foreign Policy’s blog The Cable, Senator Chris Coons of Delaware who was at the meeting said the Morsi implied that Jewish control of the media was the reason why he was being called to account for his hate speech.

This calls into question not just the continuing U.S. aid to the Muslim Brotherhood government headed by Morsi but the determination of the senatorial delegation, including its leader John McCain, to continue their support for the flow of more than a billion dollars in American taxpayer money to a hatemonger. The details of the meeting make it hard to understand how McCain could continue to justify such American support when the explanation for the Morsi rant is actually worse than the original anti-Semitic smears.

According to Coons:

“He was attempting to explain himself … then he said, ‘Well, I think we all know that the media in the United States has made a big deal of this and we know the media of the United States is controlled by certain forces and they don’t view me favorably,’” Coons said.

The Cable asked Coons if Morsi specifically named the Jews as the forces that control the American media. Coons said all the senators believed the implication was obvious.

“He did not say [the Jews], but I watched as the other senators physically recoiled, as did I,” he said. “I thought it was impossible to draw any other conclusion.”

“The meeting then took a very sharply negative turn for some time. It really threatened to cause the entire meeting to come apart so that we could not continue,” Coons said.

Multiple senators impressed upon Morsi that if he was saying the criticisms of his comments were due to the Jews in the media, that statement was potentially even more offensive than his original comments from 2010.

“[Morsi] did not say the Jewish community was making a big deal of this, but he said something [to the effect] that the only conclusion you could read was that he was implying it,” Coons said. “The conversation got so heated that eventually Senator McCain said to the group, ‘OK, we’ve pressed him as hard as we can while being in the boundaries of diplomacy,’” Coons said. “We then went on to discuss a whole range of other topics.”

This raises some serious questions about both U.S. policy and the priorities of those who took part in the meeting.

One has to wonder why it is that a week went by without any of those present at the meeting calling out Morsi for this latest outrage. Did those who kept quiet about this, including McCain, think that Morsi raising the issue of unnamed groups — an obvious reference to Jews — manipulating the media was immaterial to the question of whether U.S. aid to Egypt should continue? Or did they decide that it was unhelpful to their goal of maintaining the U.S. embrace of the Brotherhood for this story to get out sooner?

This revelation makes it imperative that all those present clarify their positions about a policy that requires American taxpayers to go on funding a government that is beginning to rival Iran as a source of anti-Semitic invective. Under Morsi, Egypt is neither a U.S. ally nor a friend. It is a tyrannical regime that has not only subverted the promise of the Arab Spring but also has the potential to be a major source of instability in the region.

If Morsi wants to keep his American money, he’s going to have to do better than to blame his problems on the Jews. And if the senators who attended this meeting and the administration that is determined to keep coddling the Brotherhood wish to justify their position, they are going to have to explain to the American people how giving billions to Morsi is compatible with our values or interests.

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Will Obama Sabotage Immigration Deal?

Eight years after Congressional opponents pronounced President George W. Bush’s immigration reform plan dead on arrival, there appears to be a real opportunity that a far-reaching proposal on the subject will pass the Senate.  As the Washington Post reports, a working group of senators, including heavy hitters from both sides of the aisle, are close to an agreement on the principles for changing the country’s immigration laws. According to the Post, the proposal, which could be announced as early as a week from today will include the following:

The working group’s principles would address stricter border control, better employer verification of workers’ immigration status, new visas for temporary agriculture workers and expanding the number of visas available for skilled engineers. They would also include a call to help young people who were brought to the country illegally as children by their parents become citizens and to normalize the status of the nation’s 11 million illegal immigrants.

The plan, which is the result of talks including Democrats Robert Menendez, Richard Dubin, Charles Schumer, Michael Bennett and Republicans Marco Rubio, Lindsay Graham, John McCain and Jeff Flake. While there are still some disagreements to be ironed out since Rubio believes that illegals should have to wait for citizenship until those who arrived legally are accommodated while Democrats disagree, this may be the best chance to pass a bill dealing with the problem in decades. But there is one potential obstacle: President Obama.

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Eight years after Congressional opponents pronounced President George W. Bush’s immigration reform plan dead on arrival, there appears to be a real opportunity that a far-reaching proposal on the subject will pass the Senate.  As the Washington Post reports, a working group of senators, including heavy hitters from both sides of the aisle, are close to an agreement on the principles for changing the country’s immigration laws. According to the Post, the proposal, which could be announced as early as a week from today will include the following:

The working group’s principles would address stricter border control, better employer verification of workers’ immigration status, new visas for temporary agriculture workers and expanding the number of visas available for skilled engineers. They would also include a call to help young people who were brought to the country illegally as children by their parents become citizens and to normalize the status of the nation’s 11 million illegal immigrants.

The plan, which is the result of talks including Democrats Robert Menendez, Richard Dubin, Charles Schumer, Michael Bennett and Republicans Marco Rubio, Lindsay Graham, John McCain and Jeff Flake. While there are still some disagreements to be ironed out since Rubio believes that illegals should have to wait for citizenship until those who arrived legally are accommodated while Democrats disagree, this may be the best chance to pass a bill dealing with the problem in decades. But there is one potential obstacle: President Obama.

The question facing Senate negotiators this weekend is whether their hard work crafting a bipartisan compromise will be blown up by the president’s determination to exploit the issue for political purposes. Though he has said that immigration reform is a priority, the senators may be holding their breath this weekend to see if Obama’s scheduled speech in Las Vegas next week will reinforce their efforts or making it more difficult for Republicans to work with the Democrats on the legislation.

Though the president spent most of his first term posing somewhat disingenuously as an advocate of balanced approaches on the issues and working for bipartisan consensus. But since his re-election he has dropped that pretense and adopted a more straightforward strategy aimed at demonizing Republicans and branding them as extremists. Since he knows it is more in the interests of his party to ensure that Hispanics believe all Republicans are enemies of immigrants than to pass a common sense bill, it would be entirely in character for him to spend the upcoming weeks blasting the GOP on the issue rather than piping down just at the moment when a deal is in the offing.

Rubio’s work in paving the way for Republican acceptance of a reform bill has been exemplary. As the Huffington Post reported, Rubio has taken to the airwaves speaking on conservative talk shows and has, surprisingly, received a good reception even from heretofore-staunch opponents of any solution other than the fantasy of deporting 12 million illegals. With the support of other conservatives like Paul Ryan, his initiative stands a good chance of passing in the House, provided the Senate has already adopted it.

But even Democrats are worried that Obama’s slash and burn tactics will turn immigration into a partisan issue and make it impossible to carry through both Houses of Congress.

As the Post notes:

Some Democrats in the House, including Rep. Luis V. Gutierrez (D-Ill.), have cautioned that the White House could harm the bid for bipartisan support if it acts too aggressively by authoring its own legislative proposal.

But left-wing activists whose primary purpose is to recruit Hispanics to vote for the Democrats aren’t the least interested in Gutierrez’s legitimate concerns. Rather than urging, as they should, that Obama stand aside and let this be a bipartisan compromise, some union hacks like the Service Employees International Union’s Eliseo Medina are egging the president on to grandstand on the issue.

Rubio has been making progress towards persuading conservatives that their worries about “amnesty” are wrongheaded since the existing mismanaged and inefficient system neither protects our borders nor deals fairly with immigrants. He’s right. Republicans should understand that the current mess harms our economy and undermines support for the rule of law. A bill along the outlines that the Senate group is working on is long overdue. Bringing undocumented aliens into the system is good public policy and it is also good politics for Republicans who need to stop playing the anti-immigrant card as Mitt Romney did last year.

But after years of advocating for genuine compromise with Republicans on tough issues, it’s by no means clear whether the president has any interest in seizing a chance to pass immigration reform if it means a bipartisan deal.

The president said last week that he’s not to blame for the lack of communication between the White House and Congress. But the fiscal cliff agreement brokered by Vice President Biden illustrated that his boss was neither interested in nor capable of working with Congress. At times, the president seemed to be working to undermine the deal that eventually passed with inflammatory rhetoric intended to make conservatives dig in rather than to bend a bit. Should the president continue to play partisan politics on immigration just at the moment when he ought to be working quietly behind the scenes to get Republicans on board, it will be the immigrants who will suffer. If immigration reform fails again this year, the likely culprit will not be a faction of conservative hardliners but a liberal president more interested in exploiting Hispanic fears than getting a bill passed.

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The Sore Loser Electoral College Plan

Could a change in the way states allocate their votes in the Electoral College have changed the outcome of the 2012 presidential election? The answer to that question is generating outrage among Democrats over schemes that are currently under consideration in Virginia and some other states. That’s because had every state in the union discarded the winner-take-all rule currently used in all but two and instead employed one in which each Congressional district would be an individual contest, Mitt Romney might have earned a slim victory despite losing the popular vote.

Nebraska and Maine currently divide their votes in this manner giving both major parties a chance to win individual districts. That is each state’s prerogative since there is nothing in the Constitution saying that the winner-take-all rule is sacred. But in 2012, when President Obama won a narrow majority in the popular vote but a decisive victory in the Electoral College, allowing such splits would have created an anomalous outcome since the president’s win was predicated on his sweep of virtually every closely-fought battleground state in which he ran up big vote totals in urban areas while losing rural counties. That’s leading Democrats to call the plan to change the system in Virginia, which Obama won by a razor-thin margin, a “sore loser” scheme that is a GOP effort to subvert democracy.

Even though Republicans in some states have been talking about this issue for years, coming on the heels of their 2012 loss, it’s hard to argue that the sore loser tag doesn’t apply. Indeed, though their plan has its virtues, the idea of changing the rules in order to skew the results a bit more in their favor instead of working on issues and producing candidates that will win on their own merits sounds like exactly the sort of foolish thing Republicans ought to be avoiding as they ponder how to do better in 2016. Nevertheless, though the plan creates some bad optics for the GOP, even its Democratic critics should admit that it is neither crazy nor essentially undemocratic.

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Could a change in the way states allocate their votes in the Electoral College have changed the outcome of the 2012 presidential election? The answer to that question is generating outrage among Democrats over schemes that are currently under consideration in Virginia and some other states. That’s because had every state in the union discarded the winner-take-all rule currently used in all but two and instead employed one in which each Congressional district would be an individual contest, Mitt Romney might have earned a slim victory despite losing the popular vote.

Nebraska and Maine currently divide their votes in this manner giving both major parties a chance to win individual districts. That is each state’s prerogative since there is nothing in the Constitution saying that the winner-take-all rule is sacred. But in 2012, when President Obama won a narrow majority in the popular vote but a decisive victory in the Electoral College, allowing such splits would have created an anomalous outcome since the president’s win was predicated on his sweep of virtually every closely-fought battleground state in which he ran up big vote totals in urban areas while losing rural counties. That’s leading Democrats to call the plan to change the system in Virginia, which Obama won by a razor-thin margin, a “sore loser” scheme that is a GOP effort to subvert democracy.

Even though Republicans in some states have been talking about this issue for years, coming on the heels of their 2012 loss, it’s hard to argue that the sore loser tag doesn’t apply. Indeed, though their plan has its virtues, the idea of changing the rules in order to skew the results a bit more in their favor instead of working on issues and producing candidates that will win on their own merits sounds like exactly the sort of foolish thing Republicans ought to be avoiding as they ponder how to do better in 2016. Nevertheless, though the plan creates some bad optics for the GOP, even its Democratic critics should admit that it is neither crazy nor essentially undemocratic.

The Electoral College already gives an unfair advantage to small states that are always overestimated in Congress since each gets at least one member of the House and two in the Senate (the number of Electoral College votes each state gets is determined by their total of members in the House and Senate). But though the College rarely produces a result at variance with the national popular vote (as it did in 1876 and more recently in the Bush-Gore fiasco in 2000) it does tend to distort most results as it did again in 2012 when it gave Obama a much bigger win than his share of the popular vote would have dictated (332-206 in the College while only 51-47 in the popular). In that sense, opposition to the GOP scheme exposes many Democrats to the charge of hypocrisy since they spent most of the last year carrying on about any possible threat to the one-person, one-vote rule.

Since all Congressional districts are supposed to have approximately the same populations the new system if applied nationwide ought to allow the Electoral College to more closely mirror the popular vote around the country.

Changing the system to allow the votes of more Americans to count in the Electoral College is a move toward more democracy not less. It would also force the parties to abandon a practice of active campaigning only in swing states and force them to fight and to spend money everywhere. That means Democrats would be encouraged to compete in red states in the South and Middle West while Republicans would no longer ignore large blue states like New York and California.

But when applied to some individual states, there’s no question that it would help the GOP. President Obama’s ability to run the table in swing states was the function of his big wins in cities while losing rural districts. Romney won seven of the 11 Congressional Districts in Virginia and 11 of the 16 districts in Ohio while both states and the election.

In our current political environment in which Democrats have a stranglehold on large states such as California, New York and Illinois, the winner-take-all rule gives them a big advantage. It is true that the same change would give them a share of a large red state like Texas that they wouldn’t currently get but they would certainly be the losers in the exchange.

Assuming that elections in the future will be dictated by the politics of our present day is always a mistake. So it would be a mistake for either party to decide its position on the future of the Electoral College based on past votes. In particular, Republicans might want to think about the possible perils of changing the system before 2016 when it is entirely possible that they will be able to nominate a candidate who might win the swing states that Romney lost. Democrats may assume that demography will dictate that they will never again lose states like Virginia, Florida, Pennsylvania or Ohio but the GOP should think twice about taking votes that a candidate like Marco Rubio or Chris Christie might win and giving them to the Democrats.

In principle, there is nothing undemocratic about allocating Electoral College votes by district rather than by states. And Democrats who never complained about Nebraska or Maine having such a system are in no position to claim it is wrong for Virginia to adopt it. But since it might have prevented Obama’s re-election in a way that most Americans would have thought unfair, Republicans should not allow themselves to be seen as working to game the system in such a way as to thwart the will of the majority. If Republicans want to eliminate the unfairness baked into the Electoral College system, they can advocate scrapping it altogether. Anything short of that is not going to do them or the country a bit of good in the long run.

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Obama’s Power Grab Slapped Down

President Obama suffered a serious embarrassment today when the U.S. Court of Appeals for the District of Columbia unanimously ruled that he overstepped his constitutional powers when he used recess appointments to name three members to the National Labor Relations Board on January 4th, 2012.

Although the Senate was holding pro forma sessions, Obama said that it was really in recess because it was conducting no business over the 20-day Christmas break. In other words, Obama sought to establish the principle that he, not the Senate, was entitled to decide when the Senate was in session.

Were he to prevail in this assertion of presidential power, it would have gutted the Senate’s power to advice and consent to nominations to executive posts and thus eliminated one of the Constitution’s carefully designed checks on executive power.

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President Obama suffered a serious embarrassment today when the U.S. Court of Appeals for the District of Columbia unanimously ruled that he overstepped his constitutional powers when he used recess appointments to name three members to the National Labor Relations Board on January 4th, 2012.

Although the Senate was holding pro forma sessions, Obama said that it was really in recess because it was conducting no business over the 20-day Christmas break. In other words, Obama sought to establish the principle that he, not the Senate, was entitled to decide when the Senate was in session.

Were he to prevail in this assertion of presidential power, it would have gutted the Senate’s power to advice and consent to nominations to executive posts and thus eliminated one of the Constitution’s carefully designed checks on executive power.

The administration will most likely appeal to the Supreme Court. But that Court could let the lower court’s decision stand simply by refusing to grant a writ of certiorari, which is necessary to appeal most cases to the high court. The fact that the ruling from a three-judge panel was unanimous greatly increases the chances that the court will not “grant cert,” to use the jargon of the court.

Assuming this decision stands, all the decisions of the NLRB since January 4th, 2012, will be void. His appointment of Richard Cordray head to the new, and very powerful Consumer Financial Protection Bureau, made at the same time, and being challenged in a separate case, would also fall.

Presidents have increasingly used recess appointments to get around Senate obstruction, usually a filibuster. But this use of the power was brazen as Obama had only just nominated the men and the Senate had not had any time in which to act.

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Jindal’s Populist Manifesto Has a Problem

Louisiana Governor Bobby Jindal made some headlines with his speech to the Republican National Committee yesterday in which he called out the GOP as having behaved like “the stupid party” in 2012. He is hardly alone in considering the infamous cracks of Todd Akin and Richard Mourdock about rape and pregnancy to be classic examples of stupidity but the main point of his address wasn’t about the perils of nominating idiots for Senate seats. Instead, Jindal put forth a manifesto about how to revive conservatism in the age of Obama. His formula is deceptively simple: opt out of a rigged game focused on how to balance the budget and replace it with a populist approach in which big government is the target.

The idea is a powerful message and is exactly what the Republican grass roots wants to hear, especially the part in which the Washington is put down and state and local governments, such as the one Jindal leads, are lauded. He’s right that the current debate in the Capitol over things like the debt ceiling and the fiscal cliff is being fought on the Democrats’ terms and has, predictably, led to GOP defeats. Jindal is also right that Republicans ought to be more interested in growing the economy than in enforcing austerity. But as much as his talk sounded like a winning approach to the 2016 presidential primaries in which he may be a serious competitor, the problem for his party is that opting out of the current debates on the debt and the budget is easy if your office is in located in Baton Rouge. It’s not an option for a House Republican caucus that remains the only real obstacle to President Obama’s plans for higher taxes and more spending in the next four years.

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Louisiana Governor Bobby Jindal made some headlines with his speech to the Republican National Committee yesterday in which he called out the GOP as having behaved like “the stupid party” in 2012. He is hardly alone in considering the infamous cracks of Todd Akin and Richard Mourdock about rape and pregnancy to be classic examples of stupidity but the main point of his address wasn’t about the perils of nominating idiots for Senate seats. Instead, Jindal put forth a manifesto about how to revive conservatism in the age of Obama. His formula is deceptively simple: opt out of a rigged game focused on how to balance the budget and replace it with a populist approach in which big government is the target.

The idea is a powerful message and is exactly what the Republican grass roots wants to hear, especially the part in which the Washington is put down and state and local governments, such as the one Jindal leads, are lauded. He’s right that the current debate in the Capitol over things like the debt ceiling and the fiscal cliff is being fought on the Democrats’ terms and has, predictably, led to GOP defeats. Jindal is also right that Republicans ought to be more interested in growing the economy than in enforcing austerity. But as much as his talk sounded like a winning approach to the 2016 presidential primaries in which he may be a serious competitor, the problem for his party is that opting out of the current debates on the debt and the budget is easy if your office is in located in Baton Rouge. It’s not an option for a House Republican caucus that remains the only real obstacle to President Obama’s plans for higher taxes and more spending in the next four years.

Jindal’s populist battle plan in which the GOP declares itself in opposition to everything that is big including government, labor unions and business is smart politics and takes the party back to its Reaganite roots. He’s also right in understanding that conservatives win when they fight elections on the broad principles of limited government, federalism, lower taxes, individual rights and use Washington as their piñata instead of being pinned down on just how much of the entitlement state they are willing to retain.

Divided government is frustrating for both sides but especially for a Republican party that has the shorter end of the stick in Washington. With a strident ideological liberal in the White House and a Democrat-run Senate there is no way the GOP-led House can enforce its will on the other two. Ironically, while Jindal’s ideas for a wholesale cutback in the size of government would seem to be in line with the views of the most hard-line Tea Party conservatives in Congress who are adamant about not being co-opted into supporting more debt, his call for the party to avoid being entangled in conflicts about the budget seems in line with more moderate party members who want to punt on those issues. The point is, if you believe, as Jindal does, that the federal government is too big and too powerful, then how do you manifest that opposition to the president’s agenda other than by taking a stand in Congress on those issues even if that puts you in, as he rightly says, a rigged game?

Jindal’s principles are sound as is his political advice to the party. He’s right that they must go big in terms of ideas while avoiding the Democrats’ traps that could lead to unpopular government shutdowns. But the problem for Republicans is that 2016 is a long way off. They need to do more in the coming months and years than to tread water while thinking deep thoughts about a vision for the country’s future in that time. The Louisiana governor’s approach makes sense in the long term but embattled Republican members of the House and Senate may be forgiven for wondering if he has any ideas that will help them stand up to Obama’s full court press on the Hill while he is making friends in Iowa and New Hampshire.

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Radical Islamists vs. the People of Mali

Law professor Karima Bennoune has an important op-ed in the New York Times today that should be required reading for all those who think that Muslims are somehow different from “you and me” and actually enjoy living under a tyrannical regime as long as its diktats are justified by a twisted reading of Sharia law. Based on her interviews with Malians fleeing the Islamists who have taken over the northern part of the country, Bennoune shows it just isn’t so–tyranny is unpopular no matter how it is packaged and justified. As she notes:

First, the fundamentalists banned music in a country with one of the richest musical traditions in the world. Last July, they stoned an unmarried couple for adultery. The woman, a mother of two, had been buried up to her waist in a hole before a group of men pelted her to death with rocks. And in October the Islamist occupiers began compiling lists of unmarried mothers.

Even holy places are not safe. These self-styled “defenders of the faith” demolished the tombs of local Sufi saints in the fabled city of Timbuktu.

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Law professor Karima Bennoune has an important op-ed in the New York Times today that should be required reading for all those who think that Muslims are somehow different from “you and me” and actually enjoy living under a tyrannical regime as long as its diktats are justified by a twisted reading of Sharia law. Based on her interviews with Malians fleeing the Islamists who have taken over the northern part of the country, Bennoune shows it just isn’t so–tyranny is unpopular no matter how it is packaged and justified. As she notes:

First, the fundamentalists banned music in a country with one of the richest musical traditions in the world. Last July, they stoned an unmarried couple for adultery. The woman, a mother of two, had been buried up to her waist in a hole before a group of men pelted her to death with rocks. And in October the Islamist occupiers began compiling lists of unmarried mothers.

Even holy places are not safe. These self-styled “defenders of the faith” demolished the tombs of local Sufi saints in the fabled city of Timbuktu.

Such draconian decrees are hardly popular with ordinary Malians who practice a tolerant brand of Islam. Bennoune quotes the acting principal of a coed high school “who had been attending public punishments to document the atrocities. This meant repeatedly watching his fellow citizens get flogged. He has seen what it looks like when a ‘convict’ has his foot sawed off. Close to tears, he said: ‘No one can stand it, but it is imposed on us. Those of us who attend, we cry.’ ”

Such sentiments are hardly surprising to anyone who has ever visited Afghanistan or Iraq’s Anbar Province–two more places where a harsh brand of Salafism was once imposed at gunpoint. In both places the people turned against the self-proclaimed religious enforcers of the Taliban and Al Qaeda in Iraq, respectively. Now in Mali they are happy to turn against Al Qaeda in the Islamic Maghreb and other groups, provided the French army protects them from the terrorists’ retribution.

The only way that such extremists can gain power is at gunpoint–something that is unfortunately easy to do in countries such as post-Saddam Hussein Iraq, post-Taliban Afghanistan, and post-coup Mali where the security services are weak to nonexistent and social order is breaking down. In such circumstances Islamists can at least claim that they are restoring law and order. But when the people see what their “law and order” consists of, they invariably recoil and pray that someone will rescue them from these theocratic tyrants.

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The Israeli Election and the Media’s Teachable Moment

After the 2012 presidential election, liberals gave conservatives a piece of advice: do some soul searching, and get out of your media bubble. Conservatives were wrong about the election, they were told, because they turned their assumptions into predictions. So it will be interesting to find out if the leftist foreign-policy press is ready to take its own advice, after a colossally botched year of coverage leading up to this week’s Israeli Knesset election.

In his wrap-up of just how wrong the media was, Walter Russell Mead gives his readers the following tip: “As negotiations to form a coalition government unfold in the next few weeks, expect more of the same from the MSM”–referring to the mainstream media. I imagine he’s right about that; the liberal press in America got the Israeli election so wrong because they get Israel itself so wrong. But it’s easy to understand how this happens by reading the article that Mead singles out as the “piece of journalism that got furthest away from the facts”–David Remnick’s essay in the New Yorker, dated for this week to coincide with the elections, on the rise of Israel’s right. Remnick writes:

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After the 2012 presidential election, liberals gave conservatives a piece of advice: do some soul searching, and get out of your media bubble. Conservatives were wrong about the election, they were told, because they turned their assumptions into predictions. So it will be interesting to find out if the leftist foreign-policy press is ready to take its own advice, after a colossally botched year of coverage leading up to this week’s Israeli Knesset election.

In his wrap-up of just how wrong the media was, Walter Russell Mead gives his readers the following tip: “As negotiations to form a coalition government unfold in the next few weeks, expect more of the same from the MSM”–referring to the mainstream media. I imagine he’s right about that; the liberal press in America got the Israeli election so wrong because they get Israel itself so wrong. But it’s easy to understand how this happens by reading the article that Mead singles out as the “piece of journalism that got furthest away from the facts”–David Remnick’s essay in the New Yorker, dated for this week to coincide with the elections, on the rise of Israel’s right. Remnick writes:

More broadly, the story of the election is the implosion of the center-left and the vivid and growing strength of the radical right. What Bennett’s rise, in particular, represents is the attempt of the settlers to cement the occupation and to establish themselves as a vanguard party, the ideological and spiritual core of the entire country. Just as a small coterie of socialist kibbutzniks dominated the ethos and the public institutions of Israel in the first decades of the state’s existence, the religious nationalists, led by the settlers, intend to do so now and in the years ahead. In the liberal tribune Haaretz, the columnist Ari Shavit wrote, “What is now happening is impossible to view as anything but the takeover by a colonial province of its mother country.”

If that strikes you as a bit overdone, and maybe a conclusion that should have been subjected to rigorous cynicism before endorsing it, what follows that in the article offers a map for how this came to be published with such certainty. The next paragraph begins with a contemptuous dismissal of the Labor Party’s election platform and its focus on domestic issues, without even a quote from the party. But those aren’t important issues, we are told, and Remnick knows this because in the next paragraph he quotes Tzipi Livni telling him so. Livni’s old party was almost shut out of the next Knesset completely, holding on to what looks to be two Knesset seats (down from 28 in the 2009 elections). It’s fair to say that Livni was wrong about the “core issues.”

Remnick’s pessimism about the settlements continues, as he follows Livni’s section of the story with quotes from the director of Peace Now’s “Settlement Watch” project. And that is followed by former Palestinian legislator Ghassan Khatib, who is then followed in the story by the pro-settlement politician Danny Danon. After that, Remnick talks about the left’s favoritoe Israeli bogeyman, Avigdor Lieberman, and moves on to how Theodor Herzl would disapprove.

You’ll notice one thing missing from all this: the Israeli voter. There is no discussion of what was actually bothering Israelis about the Netanyahu government or their rejection of Livni’s attempts to lead a credible opposition. Remnick deserves credit for much about the piece: he interviews people with whom he vehemently disagrees at length, and lets them speak for themselves. He doesn’t simply bring up old quotes from the rightist Moshe Feiglin, for example, but talks to Feiglin himself to see if that’s where he still stands on the issues. He does not seem to cherry-pick statements or conceal the context of his conversations from the reader.

But it’s an article full of politicians whose beliefs dovetail with Remnick’s own expectations. Yair Lapid, who was the big story of the election by leading his party to 19 seats, is mentioned exactly once. Labor, the other party that improved its standing greatly by addressing the kitchen-table issues that regular Israelis had been talking and fretting about, is virtually absent; Labor Party head Shelly Yachimovich is not mentioned at all.

So should we expect more of this type of coverage from the media? History tells us that the writers and pundits who get Israel wrong do so consistently. But there’s a real opportunity here for a “teachable moment,” as our president might say. If you want to know what everyday Israelis think, just ask them. Trust me, they’ll tell you.

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Our Most Polarizing President

Barack Obama is a record-setting president.

He is the most polarizing president in the history of polling.

According to the Gallup organization, during his fourth year in office, an average of 86 percent of Democrats and 10 percent of Republicans approved of the job Barack Obama did as president. That 76-percentage-point gap ties George W. Bush’s fourth year as the most polarized years in Gallup records. Now let’s dial the clock back a year, when Jeffrey Jones of the Gallup organization wrote, “The historically high gap between partisans’ job approval ratings of Barack Obama continued during Obama’s third year in office, with an average of 80 percent of Democrats and 12 percent of Republicans approving of the job he was doing… The 68-point gap between partisans’ approval ratings of Obama last year is nine points higher than that for any other president’s third year.” 

This came after Obama set a record for polarization in each of his first two years in office. So Barack Obama has set a record for polarization for three years in a row and tied the record for polarization in a fourth year.

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Barack Obama is a record-setting president.

He is the most polarizing president in the history of polling.

According to the Gallup organization, during his fourth year in office, an average of 86 percent of Democrats and 10 percent of Republicans approved of the job Barack Obama did as president. That 76-percentage-point gap ties George W. Bush’s fourth year as the most polarized years in Gallup records. Now let’s dial the clock back a year, when Jeffrey Jones of the Gallup organization wrote, “The historically high gap between partisans’ job approval ratings of Barack Obama continued during Obama’s third year in office, with an average of 80 percent of Democrats and 12 percent of Republicans approving of the job he was doing… The 68-point gap between partisans’ approval ratings of Obama last year is nine points higher than that for any other president’s third year.” 

This came after Obama set a record for polarization in each of his first two years in office. So Barack Obama has set a record for polarization for three years in a row and tied the record for polarization in a fourth year.

I realize that after his re-election victory, we’re all supposed to forget what Obama said when he ran four years ago. But just for the fun of it, let’s take a stroll down memory lane.

What Obama promised us back in the day was that he would do away with what he called the “50 plus one” style of governing. He would “turn the page” on the “old politics” of division and anger. Mr. Obama would end a politics that “breeds division and conflict and cynicism.” He would help us to “rediscover our bonds to each other and … get out of this constant petty bickering that’s come to characterize our politics.” He would “cast off the worn-out ideas and politics of the past.”

“I will listen to you,” Obama said on election night 2008, “especially when we disagree.” His election, he helpfully informed us, was a sign that we had “chosen hope over fear, unity of purpose over conflict and discord.”

And then there was Obama’s first Inaugural Address, when he proclaimed “an end to the petty grievances and false promises, the recriminations and worn-out dogmas that for far too long have strangled our politics.”

It needs to be said that we do live in an unusually polarized age. But Mr. Obama knew that when he took office four years ago. And the promises he made were unqualified. If we elected him, Obama promised, he would heal the breach. Yet here we are, four years later, with Obama having presided over an era of petty grievances, false promises, recriminations, and worn-out dogmas that have strangled our politics. And by every sign, the next four years will be even more divisive and acrimonious. There is blame to go around; but the president is primus inter pares. 

Mr. Obama is doing great harm to important areas of our national life, including our political culture and civic bonds. He will leave America a far more bitter and riven nation. That is a real shame, and it was all so unnecessary.

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Is Famine Behind North Korea’s Latest Belligerence?

Earlier today North Korea released a barrage of unprovoked and unexpected insults toward the United States, declaring that the U.S. is the “archenemy of the Korean people.’’ The LA Times reports on the bellicose language used by the North Korean government meant to strike fear into the hearts of Americans: 

“We are not disguising the fact that the various satellites and long-range rockets that we will fire and the high-level nuclear test we will carry out are targeted at the United States,” North Korea’s National Defense Commission said in a statement released by the official news service.

“Settling accounts with the U.S. needs to be done with force, not with words,” it said.

[Updated 10:46 a.m. Jan. 24: In Washington, White House Press Secretary Jay Carney called North Korea’s statement “needlessly provocative,”  adding that a test would be a “significant violation of United Nations Security Council resolutions.”

Quietly today, another story emerged from North Korea that is in all probability related to these threats. RealClearWorld reported on the latest deadly “man-made” famine gripping the reclusive nation: 

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Earlier today North Korea released a barrage of unprovoked and unexpected insults toward the United States, declaring that the U.S. is the “archenemy of the Korean people.’’ The LA Times reports on the bellicose language used by the North Korean government meant to strike fear into the hearts of Americans: 

“We are not disguising the fact that the various satellites and long-range rockets that we will fire and the high-level nuclear test we will carry out are targeted at the United States,” North Korea’s National Defense Commission said in a statement released by the official news service.

“Settling accounts with the U.S. needs to be done with force, not with words,” it said.

[Updated 10:46 a.m. Jan. 24: In Washington, White House Press Secretary Jay Carney called North Korea’s statement “needlessly provocative,”  adding that a test would be a “significant violation of United Nations Security Council resolutions.”

Quietly today, another story emerged from North Korea that is in all probability related to these threats. RealClearWorld reported on the latest deadly “man-made” famine gripping the reclusive nation: 

“Ever since Kim Jong-un assumed the position of supreme leader, the media in North Korea and visiting foreigners have reported on the beautifully developing capital, Pyongyang. But in the shadow of the ‘gorgeous’ capital a hidden famine has broken out,” says Jiro Ishimaru, chief editor of Asiapress in Osaka, a North Korean watchdog with numerous clandestine reporters throughout North Korea.

The dark secret behind all of this new capital glitz and glamour has been a raging famine in the two Hwanghae provinces, where by some estimates 20,000 people have died of starvation in South Hwanghae alone in the year since Kim Jong-il died in December 2011 and was succeeded by his son and heir, the 29-year-old Kim Jong-un.

The North Korean government is famous for its history of extortion in order to extract food and material aid from the West in exchange for suspensions of its nuclear program. In 1994 the government agreed to freeze its nuclear program in exchange for $5 billion of fuel aid and nuclear reactors. In 1996, amid widespread reports of a massive famine, the government withdrew its agreement to the armistice that ended the fighting in the Korean War and began sending troops to its border with South Korea. Two years later, as tensions continued to escalate, the UN decided to send food aid to the country still in the grips of famine following devastating floods. This pattern of violent escalation followed by food, fuel and nuclear aid has continued to the present day. Most recently, following a missile test over the spring, the U.S. decided to cancel its food aid, which could be a contributing factor in this most recent famine. 

Recently the daughter of Eric Schmidt, the executive chairman of Google, decided to join an unofficial, and unsanctioned, trip to North Korea (which I discussed at the time). The contents of her blog entry about her visit were exactly what the North Koreans wanted outsiders to take away from the capital city: Sophie expressed her wonderment at the “oddly charming” nature of Pyongyang and described their accommodations as “luxury.” Sophie Schmidt, a graduate student and an admitted North Korean neophyte, was the perfect visitor in the North Koreans’ eyes; they believed that she would take the information presented at face value. To her credit, she acknowledged that was the case:

It’s impossible to know how much we can extrapolate from what we saw in Pyongyang to what the DPRK is really like.  Our trip was a mixture of highly staged encounters, tightly-orchestrated viewings and what seemed like genuine human moments.  We had zero interactions with non-state-approved North Koreans and were never far from our two minders (2, so one can mind the other).    

Despite her minders’ best attempts to shape her impression of the country there were windows into the farcical nature of some of the encounters Sophie experienced, particularly upon entering a computer lab:

Looks great, right? All this activity, all those monitors. Probably 90 desks in the room, all manned, with an identical scene one floor up.

One problem: No one was actually doing anything.  A few scrolled or clicked, but the rest just stared. More disturbing: when our group walked in–a noisy bunch, with media in tow–not one of them looked up from their desks.  Not a head turn, no eye contact, no reaction to stimuli. They might as well have been figurines.  

Of all the stops we made, the e-Potemkin Village was among the more unsettling. We knew nothing about what we were seeing, even as it was in front of us. Were they really students? Did our handlers honestly think we bought it? Did they even care? Photo op and tour completed, maybe they dismantled the whole set and went home. When one of our group went to peek back into the room, a man abruptly closed the door ahead of him and told him to move along.

This highly publicized trip by Eric Schmidt, his daughter and Bill Richardson, the former Governor of New Mexico, was a staged attempt by the North Koreans to project an image of modernization and sophistication that has been reported by other recent and less high-profile visitors. Outside observers are unable to ascertain what exactly is taking place inside the most secretive nation in the world, especially considering tight border controls that have been instituted recently. It’s impossible to know if the reason Kim Jong-un clamped down on border traffic was in order to conceal the famine taking place inside his country. This latest threat seems to fit into the pattern of extortion that the North Koreans have perfected since at least the early ’90s, and if reports of famine are as serious as they appear, Kim Jong-un has an incentive to press for the resumption of food aid before thousands more perish. 

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Women in Combat and the Status Quo

Secretary of Defense Leon Panetta’s decision, taken at the recommendation of the Joint Chiefs of Staff, to lift the ban on women in combat is hardly “radical social engineering,” as some critics claim. It is, more than anything, a recognition of what is and has been the status quo.

Roughly three-quarters of military jobs have already been opened to women. They are serving in combat zones as pilots, intelligence analysts, logisticians, military police officers, and in other specialties that expose them to considerable risk—all the more so because the kind of war we are fighting today is a guerrilla war in which the enemy can strike anywhere and there are no defined front lines. In the army and Marine Corps women are still forbidden from serving in combat units at the battalion and below level, but there are many women—not just military personnel but also contractors—on Forward Operating Bases where brigades and higher headquarters are to be found. This means that there is plenty of interaction today between men and women in uniform.

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Secretary of Defense Leon Panetta’s decision, taken at the recommendation of the Joint Chiefs of Staff, to lift the ban on women in combat is hardly “radical social engineering,” as some critics claim. It is, more than anything, a recognition of what is and has been the status quo.

Roughly three-quarters of military jobs have already been opened to women. They are serving in combat zones as pilots, intelligence analysts, logisticians, military police officers, and in other specialties that expose them to considerable risk—all the more so because the kind of war we are fighting today is a guerrilla war in which the enemy can strike anywhere and there are no defined front lines. In the army and Marine Corps women are still forbidden from serving in combat units at the battalion and below level, but there are many women—not just military personnel but also contractors—on Forward Operating Bases where brigades and higher headquarters are to be found. This means that there is plenty of interaction today between men and women in uniform.

This has, in truth, created some issues with “fraternization” and sexual assault, but those are being dealt with by the chain of command. On the whole the integration of women has been a positive experience for the armed forces, expanding the pool of talented individuals who can contribute to the fight.

It is not clear how radical the change imposed by Panetta’s decree will actually be. He is not mandating, as I understand it, that every service open every job to women; he is simply shifting the burden of proof by requiring the services to make compelling arguments as to why women should not serve in certain jobs instead of assuming they will be excluded. There could very well be a strong case made that women should still be kept out of small infantry and Special Operations units where accommodations and hygiene are primitive and where sexual tensions could harm esprit de corps.

And opening up jobs to women doesn’t necessarily mean that they will flock to fill those slots or, even if they volunteer, that they will be found qualified. It is vitally important that physical standards not be watered down in order to increase the number of women in certain units. Being a grunt is still hard, physical labor—you have to hump 80 pounds or more of equipment and to walk long distances in punishing heat or cold. That is not something most men could do, let alone most women.

But as long as standards are enforced evenhandedly—along with rules against sexual harassment, assault and other offenses—the new Department of Defense policy should be implemented with little difficulty and is likely to win the support of most service personnel, as has been the case already with the lifting of the “don’t ask, don’t tell” rules.

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