Commentary Magazine


Topic: Judge

Judge Vinson’s Madisonian Vision vs. ObamaCare

I’ve now read through the 78-page decision by Federal Judge Roger Vinson in which he ruled the individual mandate, which is at the heart of the Patient Protection and Affordable Care Act, to be unconstitutional and not severable, necessitating that the “entire Act must be declared void.”

The decision itself, as Judge Vinson points out, is not really about our health-care system at all. It is principally about our federalist system, he writes, and “it raises very important issues regarding the Constitutional role of the federal government.”

While Vinson’s decision covers a lot of ground — including Medicaid expansion, the Necessary and Proper Clause, and the evolution of Commerce Clause Jurisprudence — the core purpose of the decision is to set some outer limits on federal action. Because of the novel way the Obama administration is justifying the individual mandate, it would be virtually impossible to argue that there is anything that Congress is without power to regulate.

Judge Vinson’s opinion is laced with quotes from Madison, Hamilton, and the Federalist Papers. And because he believes that the individual mandate exceeds Congress’s commerce power, is without logical limitation, and far exceeds the existing legal boundaries established by Supreme Court precedent — because, Vinson argues, it cannot be reconciled with a limited government of enumerated powers and would remove all limits on federal power — he declared the Act unconstitutional.

Judge Vinson was certainly right to do so. And the arguments he employed to strike it down are powerful and perfect for this political moment. We are, after all, engaged in a debate about first principles and the role of the Constitution in our lives. Judge Vinson has affirmed in an elegant opinion the vision of James Madison. We can only hope that the Supreme Court eventually does as well.

I’ve now read through the 78-page decision by Federal Judge Roger Vinson in which he ruled the individual mandate, which is at the heart of the Patient Protection and Affordable Care Act, to be unconstitutional and not severable, necessitating that the “entire Act must be declared void.”

The decision itself, as Judge Vinson points out, is not really about our health-care system at all. It is principally about our federalist system, he writes, and “it raises very important issues regarding the Constitutional role of the federal government.”

While Vinson’s decision covers a lot of ground — including Medicaid expansion, the Necessary and Proper Clause, and the evolution of Commerce Clause Jurisprudence — the core purpose of the decision is to set some outer limits on federal action. Because of the novel way the Obama administration is justifying the individual mandate, it would be virtually impossible to argue that there is anything that Congress is without power to regulate.

Judge Vinson’s opinion is laced with quotes from Madison, Hamilton, and the Federalist Papers. And because he believes that the individual mandate exceeds Congress’s commerce power, is without logical limitation, and far exceeds the existing legal boundaries established by Supreme Court precedent — because, Vinson argues, it cannot be reconciled with a limited government of enumerated powers and would remove all limits on federal power — he declared the Act unconstitutional.

Judge Vinson was certainly right to do so. And the arguments he employed to strike it down are powerful and perfect for this political moment. We are, after all, engaged in a debate about first principles and the role of the Constitution in our lives. Judge Vinson has affirmed in an elegant opinion the vision of James Madison. We can only hope that the Supreme Court eventually does as well.

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Reading The Longest War

Normally, I like a hanging judge, and I am certainly a big fan of Michael Mukasey, the esteemed former federal judge and attorney general. He is one of the most reasonable, learned, and authoritative voices around on most matters relating to the law — and especially on the war on terror with which he has been closely connected ever since he sentenced the “blind sheikh” to life in prison in 1996. Yet I can’t help but conclude that his review of Peter Bergen’s The Longest War in the Wall Street Journal metes out a harsher verdict than the book deserves.

Having read the book myself — and having interviewed Bergen about it for an upcoming episode of C-SPAN’s Afterwords — I agree with many of Mukasey’s specific criticisms. I, too, disagree with Bergen when he makes withering criticisms of Guantanamo and the use of “enhanced” interrogation techniques on the likes of Khalid Sheikh Mohammad. I, too, disagree with Bergen when he criticizes “renditions” of terrorists and when he claims (in words not quoted by Mukasey) that “by any rational standard” Saddam Hussein’s Iraq “did not pose a real threat to the United States.” The last is a particularly puzzling statement considering that Saddam Hussein had invaded his neighbors twice, schemed to acquire weapons of mass destruction, and had already sparked one war with the United States and numerous lesser military actions.

But by focusing on these dubious assertions, Mukasey gives the impression that Bergen’s book is an anti-Bush screed along the lines of Jane Mayer’s The Dark Side. It isn’t. It’s actually a fairly balanced account of the past decade’s fight against al-Qaeda. Read More

Normally, I like a hanging judge, and I am certainly a big fan of Michael Mukasey, the esteemed former federal judge and attorney general. He is one of the most reasonable, learned, and authoritative voices around on most matters relating to the law — and especially on the war on terror with which he has been closely connected ever since he sentenced the “blind sheikh” to life in prison in 1996. Yet I can’t help but conclude that his review of Peter Bergen’s The Longest War in the Wall Street Journal metes out a harsher verdict than the book deserves.

Having read the book myself — and having interviewed Bergen about it for an upcoming episode of C-SPAN’s Afterwords — I agree with many of Mukasey’s specific criticisms. I, too, disagree with Bergen when he makes withering criticisms of Guantanamo and the use of “enhanced” interrogation techniques on the likes of Khalid Sheikh Mohammad. I, too, disagree with Bergen when he criticizes “renditions” of terrorists and when he claims (in words not quoted by Mukasey) that “by any rational standard” Saddam Hussein’s Iraq “did not pose a real threat to the United States.” The last is a particularly puzzling statement considering that Saddam Hussein had invaded his neighbors twice, schemed to acquire weapons of mass destruction, and had already sparked one war with the United States and numerous lesser military actions.

But by focusing on these dubious assertions, Mukasey gives the impression that Bergen’s book is an anti-Bush screed along the lines of Jane Mayer’s The Dark Side. It isn’t. It’s actually a fairly balanced account of the past decade’s fight against al-Qaeda.

In the first place, many of the criticisms Bergen offers are on the money — for instance, about the failure of the Bush administration to send more troops to trap Osama bin Laden at Tora Bora and about the failure to prepare for the post-invasion phase of the Iraq war. Both assertions should, by now, be fairly uncontroversial even in conservative circles. For that matter, I think Bergen is convincing in arguing that no tangible links between Saddam Hussein and al-Qaeda have been uncovered and that mainstream Islam has rejected al-Qaeda — both assertions that Mukasey questions.

In the second place, Bergen also offers praise for Bush that Mukasey doesn’t quote. He writes, for example, “There is little doubt that some of the measures the Bush administration and Congress took after 9/11 made Americans safer.” Among the positives he cites are the Patriot Act and other enhanced security measures.

Bergen also endorses Bush’s decision to  attack al-Qaeda with the full weight of the U.S. military — not just with law enforcement and intelligence agencies. This led the Economist to criticize Bergen’s book for dismissing “the view of some Europeans that al-Qaeda is essentially a law and order problem—more or less arguing, with odd logic, that since it declared war on America, then America must be at war.”

Unlike Michael Scheuer, the eccentric former CIA analyst whose new book about Osama bin Laden is also reviewed by Mukasey, Bergen does not think that Bush fell into a trap by sending troops into Afghanistan. Although bin Laden has talked about how he was luring America into a guerrilla war, Bergen concludes that this is largely an ex post facto justification and that the invasion of Afghanistan actually did significant damage to al-Qaeda. Moreover, unlike many of those who backed the initial decision to intervene, he strongly supports the current war effort in Afghanistan. Indeed Bergen and I teamed up at an Intelligence Squared US debate not long ago to argue that Afghanistan isn’t a lost cause.

In short, I think Mukasey is being harder on Bergen than the facts of the case warrant. But judge for yourself — read the book and watch my interview with Bergen in which I press him on some of the very points that Mukasey raises.

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Chris Christie’s Troubling Appointment

New Jersey Governor Chris Christie has earned legions of fans with his take-no-prisoners style over the last year as he defied the unions and other entrenched interests in his drive to return his state to fiscal sanity. But while Christie has sought to silence the buzz about a possible presidential run, it appears that there might be a better reason to abandon this fantasy than his understandable reluctance: the governor has some explaining to do about his cozying up to an Islamist group in the state both before and after his election.

Christie’s decision to appoint attorney Sohail Mohammed to a state Superior Court judgeship has raised questions not only about his nominee’s record but also about the governor’s own stand. Mohammed is mainly known for the fact that he was the defense attorney for Muslims who were arrested in the wake of 9/11 because of their ties to terror organizations. In one case, Mohammed fought the government’s effort to deport Mohammed Qatanani, the imam of the Islamic Center of Passaic County and an influential member of the extremist — though well-connected — American Muslim Union. Though the New York Times praised him in 2008 during his deportation trial as a “revered imam” and portrayed the case as an overreaction to 9/11, Qatanani, a Palestinian, is a supporter of the Muslim Brotherhood and admitted to being a member of Hamas when he was arrested by Israeli authorities in 1993 before coming to the United States. Though he claimed to be an advocate of interfaith dialogue (and was accepted as such by some liberal Jews), Qatanani was no moderate on the Middle East. His ties to Hamas were well known, and just the year before his deportation trial, Qatanani endorsed Israel’s absorption into an Islamic “Greater Syria.” Qatanani clearly lied about his record as an Islamist on documents that he used to enter the country. But he was nevertheless able to evade justice in the immigration courts because the judge accepted his undocumented claim that the Israelis tortured him.

Qatanani also benefited from having some highly placed friends in the justice system as a result of the political pull of the American Muslim Union, which boasts Sohail Mohammed as one of its board members. The AMU was able to get former New Jersey governor Jon Corzine, Democratic Congressman Bill Pascrell, and then U.S. attorney Chris Christie to intervene on Qatanani’s behalf during the trial. As far as Christie was concerned, this was not a matter of merely signing a letter or making a phone call. The day before the Immigration Court announced its decision, Christie actually spoke at Qatanani’s mosque (Qatanani’s predecessor had boasted of raising at the mosque $2 million for Hamas via the now banned Holy Land Foundation) at a Ramadan breakfast dinner, where he embraced the imam while praising him as “a man of great good will.” Read More

New Jersey Governor Chris Christie has earned legions of fans with his take-no-prisoners style over the last year as he defied the unions and other entrenched interests in his drive to return his state to fiscal sanity. But while Christie has sought to silence the buzz about a possible presidential run, it appears that there might be a better reason to abandon this fantasy than his understandable reluctance: the governor has some explaining to do about his cozying up to an Islamist group in the state both before and after his election.

Christie’s decision to appoint attorney Sohail Mohammed to a state Superior Court judgeship has raised questions not only about his nominee’s record but also about the governor’s own stand. Mohammed is mainly known for the fact that he was the defense attorney for Muslims who were arrested in the wake of 9/11 because of their ties to terror organizations. In one case, Mohammed fought the government’s effort to deport Mohammed Qatanani, the imam of the Islamic Center of Passaic County and an influential member of the extremist — though well-connected — American Muslim Union. Though the New York Times praised him in 2008 during his deportation trial as a “revered imam” and portrayed the case as an overreaction to 9/11, Qatanani, a Palestinian, is a supporter of the Muslim Brotherhood and admitted to being a member of Hamas when he was arrested by Israeli authorities in 1993 before coming to the United States. Though he claimed to be an advocate of interfaith dialogue (and was accepted as such by some liberal Jews), Qatanani was no moderate on the Middle East. His ties to Hamas were well known, and just the year before his deportation trial, Qatanani endorsed Israel’s absorption into an Islamic “Greater Syria.” Qatanani clearly lied about his record as an Islamist on documents that he used to enter the country. But he was nevertheless able to evade justice in the immigration courts because the judge accepted his undocumented claim that the Israelis tortured him.

Qatanani also benefited from having some highly placed friends in the justice system as a result of the political pull of the American Muslim Union, which boasts Sohail Mohammed as one of its board members. The AMU was able to get former New Jersey governor Jon Corzine, Democratic Congressman Bill Pascrell, and then U.S. attorney Chris Christie to intervene on Qatanani’s behalf during the trial. As far as Christie was concerned, this was not a matter of merely signing a letter or making a phone call. The day before the Immigration Court announced its decision, Christie actually spoke at Qatanani’s mosque (Qatanani’s predecessor had boasted of raising at the mosque $2 million for Hamas via the now banned Holy Land Foundation) at a Ramadan breakfast dinner, where he embraced the imam while praising him as “a man of great good will.”

Terror researcher Steve Emerson was quoted at the time as calling Christie’s involvement in the case “a disgrace and an act of pure political corruption,” especially since “I know for certain that Christie and the FBI had access to information about Qatanani’s background, involvement with and support of Hamas.”

Why would a man who was otherwise tasked as a U.S. attorney with defending America against such Islamists intervene on behalf of a Hamas supporter? The answer was obvious. Christie was already looking ahead to his race for governor against Corzine in 2009 and wanted the enthusiastic support of the state’s not-insignificant Muslim population. Christie’s record in the Qatanani case is a troubling chapter in his biography, and his willingness to further solidify his friendship with the American Muslim Union with his appointment of Sohail Mohammed to the court shows that his judgment on the issue of support for terrorism is highly questionable. If Christie’s name is mentioned again in the context of a presidential politics or even as a possible nominee for vice president, he is going to have to answer some tough questions about all this.

(Hat tip to Daniel Greenfield’s Sultan Knish blog)

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RE: Why Pollard’s Release Is Unlikely Right Now

Alana, one of the reasons you suggest for the improbability of Jonathan Pollard’s release is the public nature of the campaign to free him, since such a prisoner release would typically be done with arguments behind closed doors.

But arguably, a public debate is the only way in which a Pollard release would become proper, because public discussion is necessary before such a step occurs. The whole world is watching, so to speak.

In an editorial today entitled “Netanyahu’s Plea for Pollard, the New York Sun provides a useful addition to the public debate, focusing on a “magnificent dissent” by Judge Stephen Williams in the 1992 case in which the Court of Appeals rejected Pollard’s plea for a new sentencing hearing:

It happens that we don’t think a life sentence is too long a punishment for conviction of secretly passing classified information to a foreign government, even, in serious cases, if conviction is for only one count, as it was in the case of Pollard. … But it also happens that the sentence meted out to Pollard was vastly disproportionate to sentences handed down against other spies, including some who spied not for a friend of America, which is what Pollard did, but for countries that could be expected to use the fruits of spying in actions against us, like the Soviet Union or communist China.

… [Judge Williams] was one of three judges who heard Pollard’s plea for a new sentencing hearing. The two other judges on the circuit panel, Laurence Silberman and Ruth Bader Ginsburg, sided against Pollard in a highly technical opinion. Judge Williams’s dissent accused the government of having broken both the spirit and, in one respect, even the letter of the binding agreement under which it had obtained Pollard’s guilty plea.

The Sun covers the arguments made by both sides in that case, and concludes that there was a miscarriage in the sentencing proceeding whose correction is long overdue after Pollard has served nearly 25 years. For those still seeking to make up their minds, the Sun’s review is worth reading.

Alana, one of the reasons you suggest for the improbability of Jonathan Pollard’s release is the public nature of the campaign to free him, since such a prisoner release would typically be done with arguments behind closed doors.

But arguably, a public debate is the only way in which a Pollard release would become proper, because public discussion is necessary before such a step occurs. The whole world is watching, so to speak.

In an editorial today entitled “Netanyahu’s Plea for Pollard, the New York Sun provides a useful addition to the public debate, focusing on a “magnificent dissent” by Judge Stephen Williams in the 1992 case in which the Court of Appeals rejected Pollard’s plea for a new sentencing hearing:

It happens that we don’t think a life sentence is too long a punishment for conviction of secretly passing classified information to a foreign government, even, in serious cases, if conviction is for only one count, as it was in the case of Pollard. … But it also happens that the sentence meted out to Pollard was vastly disproportionate to sentences handed down against other spies, including some who spied not for a friend of America, which is what Pollard did, but for countries that could be expected to use the fruits of spying in actions against us, like the Soviet Union or communist China.

… [Judge Williams] was one of three judges who heard Pollard’s plea for a new sentencing hearing. The two other judges on the circuit panel, Laurence Silberman and Ruth Bader Ginsburg, sided against Pollard in a highly technical opinion. Judge Williams’s dissent accused the government of having broken both the spirit and, in one respect, even the letter of the binding agreement under which it had obtained Pollard’s guilty plea.

The Sun covers the arguments made by both sides in that case, and concludes that there was a miscarriage in the sentencing proceeding whose correction is long overdue after Pollard has served nearly 25 years. For those still seeking to make up their minds, the Sun’s review is worth reading.

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More Ethics Troubles for J Street President

It looks like the left-wing “pro-Israel” group J Street can now add “self-dealing” to its growing list of scandals. Documents obtained by the Washington Times reveal that the group paid at least $56,000 to Ben-Or Consulting, an Israeli firm co-owned by J Street president Jeremy Ben-Ami. This discovery isn’t as juicy as some of the previous ones — it’s hard to top lying about taking money from George Soros and aiding congressional visits for Judge Richard Goldstone. But it certainly confirms the group’s aversion to ethics and truth-telling:

“Even if it’s technically legal, it gets very messy when you have these sorts of deals going on because, if you’re going to benefit on the other end of it, be it 100 percent or 5 percent, it raises questions about objectivity and the arms’ length in the transaction,” said Ken Berger, president of Charity Navigator.

“If you want your organization to use a particular company, ideally there would be a clean break one way or the other. So you would either sell off your interest in that company or step down from the board during the period of time when this is going so that there would be no question as to what’s going on in the boardroom.”

Ben-Ami co-founded the firm more than a decade ago but left in 2000. He still owns 15 percent of the company, which is clearly not a trifling portion. And while there’s no indication that his actions were illegal, there’s also no denying that Ben-Ami had a financial interest in the decision to use Ben-Or Consulting. Even if he doesn’t currently collect dividends (which the Times was unable to confirm), he still has a financial stake if and when the company gets sold.

Obviously, it wouldn’t be a J Street scandal without some amusingly evasive double-talk from Ben-Ami, who told the Times that “as a token of my role as a co-founder, we left 15 percent of the shares of the firm in my name — an agreement that has no financial implications for me personally, for J Street or for the firm.”

Seriously? No financial implications? Maybe he should have coordinated that response with Ben-Or Consulting, which pretty much contradicted Ben-Ami’s claim. “[Ben-Ami] would receive 15 percent of the proceeds if the firm is ever sold,” a spokesperson from the firm told the Times.

It also looks like Ben-Or Consulting has some notorious Israel-bashers as clients. The company’s website boasts that it represents former president Jimmy Carter, the Association for Civil Rights in Israel, and Yesh Din — all of which accuse Israel of promoting “apartheid” policies. But these are also just the clients that Ben-Or lists publicly. J Street is conspicuously absent from the list, so it wouldn’t be shocking if we learned that the names of some other clients were withheld as well.

It looks like the left-wing “pro-Israel” group J Street can now add “self-dealing” to its growing list of scandals. Documents obtained by the Washington Times reveal that the group paid at least $56,000 to Ben-Or Consulting, an Israeli firm co-owned by J Street president Jeremy Ben-Ami. This discovery isn’t as juicy as some of the previous ones — it’s hard to top lying about taking money from George Soros and aiding congressional visits for Judge Richard Goldstone. But it certainly confirms the group’s aversion to ethics and truth-telling:

“Even if it’s technically legal, it gets very messy when you have these sorts of deals going on because, if you’re going to benefit on the other end of it, be it 100 percent or 5 percent, it raises questions about objectivity and the arms’ length in the transaction,” said Ken Berger, president of Charity Navigator.

“If you want your organization to use a particular company, ideally there would be a clean break one way or the other. So you would either sell off your interest in that company or step down from the board during the period of time when this is going so that there would be no question as to what’s going on in the boardroom.”

Ben-Ami co-founded the firm more than a decade ago but left in 2000. He still owns 15 percent of the company, which is clearly not a trifling portion. And while there’s no indication that his actions were illegal, there’s also no denying that Ben-Ami had a financial interest in the decision to use Ben-Or Consulting. Even if he doesn’t currently collect dividends (which the Times was unable to confirm), he still has a financial stake if and when the company gets sold.

Obviously, it wouldn’t be a J Street scandal without some amusingly evasive double-talk from Ben-Ami, who told the Times that “as a token of my role as a co-founder, we left 15 percent of the shares of the firm in my name — an agreement that has no financial implications for me personally, for J Street or for the firm.”

Seriously? No financial implications? Maybe he should have coordinated that response with Ben-Or Consulting, which pretty much contradicted Ben-Ami’s claim. “[Ben-Ami] would receive 15 percent of the proceeds if the firm is ever sold,” a spokesperson from the firm told the Times.

It also looks like Ben-Or Consulting has some notorious Israel-bashers as clients. The company’s website boasts that it represents former president Jimmy Carter, the Association for Civil Rights in Israel, and Yesh Din — all of which accuse Israel of promoting “apartheid” policies. But these are also just the clients that Ben-Or lists publicly. J Street is conspicuously absent from the list, so it wouldn’t be shocking if we learned that the names of some other clients were withheld as well.

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Afternoon Commentary

Vladmir Putin’s political opponent Mikhail Khodorkovsky was convicted of money laundering and embezzlement yesterday in what many have denounced as a show-trial. The verdict came as no surprise to Khodorkovsky, who calmly read a book as the judge issued the decision. U.S. officials have offered some token condemnations of the conviction, but clearly the Obama administration is unwilling to take any action that might disrupt the “reset” process with Russia just days after the New START treaty was ratified by Congress.

Zimbabwe Prime Minister Morgan Tsvangarai may be brought up on treason charges, after WikiLeaks cables revealed that he privately asked the U.S. to keep sanctions against his country in place: “State media reports have said hardline supporters of the president, Robert Mugabe, want an official inquiry into Tsvangirai’s discussion of international sanctions with the US ambassador in Harare. Mugabe’s Zanu-PF party said last week the government should draft a law that makes it a treasonable offence to call for sanctions.” The punishment for high treason is the death penalty in Zimbabwe. Tsvangarai, a longtime foe of the dictatorial Mugabe, has discovered that being inside his government may be as dangerous as being outside of it.

President Obama continues to use the argument that Guantanamo Bay is al Qaeda’s “number one recruitment tool.” But how often do terror leaders actually mention Gitmo? At the Weekly Standard, Thomas Joscelyn scours the transcripts of the public speeches of al Qaeda leaders since 2009, and finds that very few refer to the detention facility.

The unwillingness of many libertarians to compromise ideological principles – even among themselves – prevents the movement from gaining any serious political power, writes Christopher Beam in New York magazine: “It’s no coincidence that most libertarians discover the philosophy as teenagers. At best, libertarianism means pursuing your own self-interest, as long as you don’t hurt anyone else. At worst, as in Ayn Rand’s teachings, it’s an explicit celebration of narcissism. ‘Man’s first duty is to himself,’ says the young architect Howard Roark in his climactic speech in The Fountainhead. ‘His moral obligation is to do what he wishes.’ Roark utters these words after dynamiting his own project, since his vision for the structure had been altered without his permission. The message: Never compromise.”

In case you needed a reminder on what a joke the UN is, Mary Katharine Ham rounded up the top 10 most “UN-believable” moments of 2010. Number 4: “The UN narrowly avoided putting Iran on its Commission on the Status of Women — a sort of sop to the Islamic Republic in the wake of its rejection for the Human Rights Council — thanks to loud push-back from the U.S. and human-rights groups. Perhaps stoning was a bridge too far. But it does now boast Saudi Arabia as a member of the commission. Women are not allowed to drive in Saudi Arabia, must always wear abaya in public, and are punished for being in public without a male relative as an escort.”

Palestinian Authority President Mahmoud Abbas criticizes Israel as an obstacle to peace, and promises that an independent state of Palestine won’t allow a single Israeli within its borders. “We have frankly said, and always will say: If there is an independent Palestinian state with Jerusalem as its capital, we won’t agree to the presence of one Israeli in it,” Abbas told reporters on Saturday. (Cue crickets chirping from the left).

Meanwhile, Jeffrey Goldberg groundlessly worries about whether Israel will soon cease being a democracy: “Let’s just say, as a hypothetical, that one day in the near future, Prime Minister [Avigdor] Lieberman’s government (don’t laugh, it’s not funny) proposes a bill that echoes the recent call by some rabbis to discourage Jews from selling their homes to Arabs. Or let’s say that Lieberman’s government annexes swaths of the West Bank in order to take in Jewish settlements, but announces summarily that the Arabs in the annexed territory are in fact citizens of Jordan, and can vote there if they want to, but they won’t be voting in Israel. What happens then?” Say what you will about Lieberman but, actually, his position has always been that some Arab towns and villages that are part of Israel should be given to a Palestinian state while Jewish settlement blocs are annexed to Israel. That may not be what the Palestinians want or even what many Israelis want but the outcome Lieberman desires would be a democratic and Jewish state.

Vladmir Putin’s political opponent Mikhail Khodorkovsky was convicted of money laundering and embezzlement yesterday in what many have denounced as a show-trial. The verdict came as no surprise to Khodorkovsky, who calmly read a book as the judge issued the decision. U.S. officials have offered some token condemnations of the conviction, but clearly the Obama administration is unwilling to take any action that might disrupt the “reset” process with Russia just days after the New START treaty was ratified by Congress.

Zimbabwe Prime Minister Morgan Tsvangarai may be brought up on treason charges, after WikiLeaks cables revealed that he privately asked the U.S. to keep sanctions against his country in place: “State media reports have said hardline supporters of the president, Robert Mugabe, want an official inquiry into Tsvangirai’s discussion of international sanctions with the US ambassador in Harare. Mugabe’s Zanu-PF party said last week the government should draft a law that makes it a treasonable offence to call for sanctions.” The punishment for high treason is the death penalty in Zimbabwe. Tsvangarai, a longtime foe of the dictatorial Mugabe, has discovered that being inside his government may be as dangerous as being outside of it.

President Obama continues to use the argument that Guantanamo Bay is al Qaeda’s “number one recruitment tool.” But how often do terror leaders actually mention Gitmo? At the Weekly Standard, Thomas Joscelyn scours the transcripts of the public speeches of al Qaeda leaders since 2009, and finds that very few refer to the detention facility.

The unwillingness of many libertarians to compromise ideological principles – even among themselves – prevents the movement from gaining any serious political power, writes Christopher Beam in New York magazine: “It’s no coincidence that most libertarians discover the philosophy as teenagers. At best, libertarianism means pursuing your own self-interest, as long as you don’t hurt anyone else. At worst, as in Ayn Rand’s teachings, it’s an explicit celebration of narcissism. ‘Man’s first duty is to himself,’ says the young architect Howard Roark in his climactic speech in The Fountainhead. ‘His moral obligation is to do what he wishes.’ Roark utters these words after dynamiting his own project, since his vision for the structure had been altered without his permission. The message: Never compromise.”

In case you needed a reminder on what a joke the UN is, Mary Katharine Ham rounded up the top 10 most “UN-believable” moments of 2010. Number 4: “The UN narrowly avoided putting Iran on its Commission on the Status of Women — a sort of sop to the Islamic Republic in the wake of its rejection for the Human Rights Council — thanks to loud push-back from the U.S. and human-rights groups. Perhaps stoning was a bridge too far. But it does now boast Saudi Arabia as a member of the commission. Women are not allowed to drive in Saudi Arabia, must always wear abaya in public, and are punished for being in public without a male relative as an escort.”

Palestinian Authority President Mahmoud Abbas criticizes Israel as an obstacle to peace, and promises that an independent state of Palestine won’t allow a single Israeli within its borders. “We have frankly said, and always will say: If there is an independent Palestinian state with Jerusalem as its capital, we won’t agree to the presence of one Israeli in it,” Abbas told reporters on Saturday. (Cue crickets chirping from the left).

Meanwhile, Jeffrey Goldberg groundlessly worries about whether Israel will soon cease being a democracy: “Let’s just say, as a hypothetical, that one day in the near future, Prime Minister [Avigdor] Lieberman’s government (don’t laugh, it’s not funny) proposes a bill that echoes the recent call by some rabbis to discourage Jews from selling their homes to Arabs. Or let’s say that Lieberman’s government annexes swaths of the West Bank in order to take in Jewish settlements, but announces summarily that the Arabs in the annexed territory are in fact citizens of Jordan, and can vote there if they want to, but they won’t be voting in Israel. What happens then?” Say what you will about Lieberman but, actually, his position has always been that some Arab towns and villages that are part of Israel should be given to a Palestinian state while Jewish settlement blocs are annexed to Israel. That may not be what the Palestinians want or even what many Israelis want but the outcome Lieberman desires would be a democratic and Jewish state.

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How Obama Could Louse Up the Obama-Comeback Story

We are going to hear, over the next few months, that Barack Obama has staged a dramatic comeback. The story line began last week, with his string of bill signings, and will continue when the fourth-quarter economic numbers show an improved growth rate (maybe up to 3 percent) with expectations of more to come in the first quarter of next year. He has now established, whether honestly or not, that he can work with Republicans, etc. etc. It will be the mainstream media meme to end all mainstream media memes.

That’s fine, and good for him, but here’s the truth: We also judge presidents based on how they react in unexpected and unanticipated situations — when the oil well explodes in the waters off Louisiana, when the Republican is elected in Massachusetts to Ted Kennedy’s Senate seat, when somebody announces something about apartment construction in East Jerusalem, when hundreds of thousands of Iranians take to the streets. Nothing that’s happened since the election should give us any reason to believe that the gut-instinct way Obama reacts to difficulties, setbacks, or disappointments has changed. He seems split between remaining almost affectless (as in the month or so post-Deepwater) and overly angry (his post-election press conference, and the press conference after the tax-cut deal in which he called Republicans hostage takers and Democrats sanctimonious).

Sure, when he gets his way, he’s all smiles and bonhomie, but that’s not going to be the hand he’s dealt next year either domestically or in foreign affairs. He managed to pull off a few weeks of last-minute triumphs that have made him feel good and that do set him up far better than failure would have done. But he’s going to have to fight against his own nature to cope with the kinds of troubles that will be coming at him in the next year, and usually, troubles only deepen people’s core personalities, they don’t alter them.

We are going to hear, over the next few months, that Barack Obama has staged a dramatic comeback. The story line began last week, with his string of bill signings, and will continue when the fourth-quarter economic numbers show an improved growth rate (maybe up to 3 percent) with expectations of more to come in the first quarter of next year. He has now established, whether honestly or not, that he can work with Republicans, etc. etc. It will be the mainstream media meme to end all mainstream media memes.

That’s fine, and good for him, but here’s the truth: We also judge presidents based on how they react in unexpected and unanticipated situations — when the oil well explodes in the waters off Louisiana, when the Republican is elected in Massachusetts to Ted Kennedy’s Senate seat, when somebody announces something about apartment construction in East Jerusalem, when hundreds of thousands of Iranians take to the streets. Nothing that’s happened since the election should give us any reason to believe that the gut-instinct way Obama reacts to difficulties, setbacks, or disappointments has changed. He seems split between remaining almost affectless (as in the month or so post-Deepwater) and overly angry (his post-election press conference, and the press conference after the tax-cut deal in which he called Republicans hostage takers and Democrats sanctimonious).

Sure, when he gets his way, he’s all smiles and bonhomie, but that’s not going to be the hand he’s dealt next year either domestically or in foreign affairs. He managed to pull off a few weeks of last-minute triumphs that have made him feel good and that do set him up far better than failure would have done. But he’s going to have to fight against his own nature to cope with the kinds of troubles that will be coming at him in the next year, and usually, troubles only deepen people’s core personalities, they don’t alter them.

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The New Anarchists

There’s something too meta about reading the headline “UK Judge Allows Tweets From Assange Court Hearing” as a tweet. There’s also something frustrating about it — the sense that those who seek to do the most harm via technology are making us all use their currency. The AP reports, “Free-speech advocates are welcoming a judge’s decision.” Somehow the only “free-speech advocates” who come to mind here are Julian Assange and the rest of the cyber-anarchists now screaming about censorship. With Juan Williams losing his job for stating an opinion, and Mike Bloomberg telling Americans they should be ashamed of themselves for doing the same, is courtroom tweeting really where today’s front-line free-speech fight is?

The Assange fan club is steadily reframing the Internet technology question as one of freedom of expression, not global security, right to privacy, or rule of law. Those who applaud legal decisions allowing for freer flows of information are, at the same time, via cyber-attack, attempting to undo the foundations on which such decisions rest.

The Internet is too thoroughly transnational to make cyber-warfare a viable means of country-on-country attack. China, our biggest perceived cyber-threat, is too intertwined with the American market-state to launch anything but a self-defeating cyber-war on the U.S. A choreographed attack on the American public and private sectors would send Chinese investments plummeting. So cyber-warfare is most perfectly suited to those who are now attacking — the anarchists. They’re bent on dissolving the glue of the interconnected world.

In his book Terror And Consent, Philip Bobbitt rather brilliantly details how every type of state produces its own brand of terrorism. “In each era,” writes Bobbitt, “terrorism derives its ideology in reaction to the raison d’être of the dominant constitutional order; at the same time negating and rejecting that form’s unique ideology but mimicking the form’s structural characteristics.” So today’s cyber-anarchists seek to negate the individual opportunities furnished by the interconnected market-state while using the very machinery of that order to bring it down.

Up until a few weeks ago, one could have read a novel like G. K. Chesterton’s The Man Who Was Thursday, published in 1908, and wonder at the ridiculous fuss over the anarchists conspiring on every page. Anarchism, as a genuine force to be reckoned with, has largely come to seem absurd to us. How did that happen? According to Bobbitt, “Anarchism was not defeated. Rather it simply faded away with the imperial state nations that were its targets when this constitutional order, shattered by the First World War, was progressively replaced by nation states.” For the new kind of state, a new kind of terrorism arose. Where turn-of-the-century anarchists sought to kill imperial leaders, nation-state terrorists targeted a nation’s people.

But now anarchism, particularly of the cyber variety, seems to have found a perfect fit once again.  While greater interconnectivity among countries, corporations, and individuals means greater and more easily exploited opportunities for good, it also creates new vulnerabilities. One mouse click can now shut down countless parts of a connected system. Moreover, a cyber-terrorist network can collect many more nodes also by virtue of a mouse click. The WikiLeaks ally Anonymous, for example, has developed a program to allow would-be hackers to join the cyber-war by clicking on a button, rather than having to download anything cumbersome and traceable. So perhaps it’s not that cyber-anarchists are making us use their currency. It’s that they have successfully co-opted the technological means by which today’s constitutional order manages to survive. They’ve perverted our technology. Let’s not allow them to do the same with our legal framework.

There’s something too meta about reading the headline “UK Judge Allows Tweets From Assange Court Hearing” as a tweet. There’s also something frustrating about it — the sense that those who seek to do the most harm via technology are making us all use their currency. The AP reports, “Free-speech advocates are welcoming a judge’s decision.” Somehow the only “free-speech advocates” who come to mind here are Julian Assange and the rest of the cyber-anarchists now screaming about censorship. With Juan Williams losing his job for stating an opinion, and Mike Bloomberg telling Americans they should be ashamed of themselves for doing the same, is courtroom tweeting really where today’s front-line free-speech fight is?

The Assange fan club is steadily reframing the Internet technology question as one of freedom of expression, not global security, right to privacy, or rule of law. Those who applaud legal decisions allowing for freer flows of information are, at the same time, via cyber-attack, attempting to undo the foundations on which such decisions rest.

The Internet is too thoroughly transnational to make cyber-warfare a viable means of country-on-country attack. China, our biggest perceived cyber-threat, is too intertwined with the American market-state to launch anything but a self-defeating cyber-war on the U.S. A choreographed attack on the American public and private sectors would send Chinese investments plummeting. So cyber-warfare is most perfectly suited to those who are now attacking — the anarchists. They’re bent on dissolving the glue of the interconnected world.

In his book Terror And Consent, Philip Bobbitt rather brilliantly details how every type of state produces its own brand of terrorism. “In each era,” writes Bobbitt, “terrorism derives its ideology in reaction to the raison d’être of the dominant constitutional order; at the same time negating and rejecting that form’s unique ideology but mimicking the form’s structural characteristics.” So today’s cyber-anarchists seek to negate the individual opportunities furnished by the interconnected market-state while using the very machinery of that order to bring it down.

Up until a few weeks ago, one could have read a novel like G. K. Chesterton’s The Man Who Was Thursday, published in 1908, and wonder at the ridiculous fuss over the anarchists conspiring on every page. Anarchism, as a genuine force to be reckoned with, has largely come to seem absurd to us. How did that happen? According to Bobbitt, “Anarchism was not defeated. Rather it simply faded away with the imperial state nations that were its targets when this constitutional order, shattered by the First World War, was progressively replaced by nation states.” For the new kind of state, a new kind of terrorism arose. Where turn-of-the-century anarchists sought to kill imperial leaders, nation-state terrorists targeted a nation’s people.

But now anarchism, particularly of the cyber variety, seems to have found a perfect fit once again.  While greater interconnectivity among countries, corporations, and individuals means greater and more easily exploited opportunities for good, it also creates new vulnerabilities. One mouse click can now shut down countless parts of a connected system. Moreover, a cyber-terrorist network can collect many more nodes also by virtue of a mouse click. The WikiLeaks ally Anonymous, for example, has developed a program to allow would-be hackers to join the cyber-war by clicking on a button, rather than having to download anything cumbersome and traceable. So perhaps it’s not that cyber-anarchists are making us use their currency. It’s that they have successfully co-opted the technological means by which today’s constitutional order manages to survive. They’ve perverted our technology. Let’s not allow them to do the same with our legal framework.

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Call It Cynicism Squared

Peter Wehner referred earlier this week to President Obama’s “cynical maneuvering” in arguing, prior to the passage of ObamaCare, that the penalty to enforce the individual mandate was not a “tax” — only to have his lawyers argue, after passage, that it was constitutional precisely because it was a “tax.”

There was another bit of cynical maneuvering regarding another ObamaCare provision, also relating to its characterization as a “tax.” Judge Hudson’s opinion in Virginia v. Sebelius sheds light on the common denominator of both maneuvers.

In ruling that the individual-mandate penalty is not a “tax,” Judge Hudson noted the “unequivocal denials by the Executive and Legislative branches that the [legislation] was a tax.” He referenced the Christmas Eve maneuver in the Senate:

Earlier versions of the bill in both the House of Representatives and the Senate used the more politically toxic term “tax” … Each of these earlier versions specifically employed the word “tax” as opposed to “penalty” for the sanction for noncompliance.

In the final version of the [bill] enacted by the Senate on December 24, 2009, the term “penalty” was substituted for “tax” … This shift in terminology during the final hours preceding an extremely close floor vote undermines the contention that the terms “penalty” and “tax” are synonymous.” [Opinion at pp. 33-34]

As I have previously noted, the day before the House vote on ObamaCare, the name of the new “Medicare Tax” on investment income was changed to a “Medicare Contribution.” But the “contribution” had nothing to do with Medicare, since none of the revenue went to the Medicare Trust Fund but instead was designated for the general fund, to be spent for non-Medicare purposes. Like the Christmas Eve maneuver, however, the change avoided the politically toxic term “tax.”

The common goal of these maneuvers was to avoid a political problem for President Obama. He had rejected, in absolute terms, on national television, the idea that the enforcement mechanism for the individual mandate was a tax; when its name was changed to a “penalty,” it was neither an inadvertent nor insignificant change. Likewise, changing the “Medicare Tax” to a “contribution” solved the problem of imposing a substantial new tax on investment income when there was already a plan to increase the tax substantially later by having the Bush tax rates expire.

The solution in both situations was to change the name so that neither the “penalty” nor the “contribution” was a “tax.” The “Medicare Contribution” label reached a new high in legislative cynicism. Is there a name for passing a “Medicare Contribution” in which both words in the name are disingenuous?

Peter Wehner referred earlier this week to President Obama’s “cynical maneuvering” in arguing, prior to the passage of ObamaCare, that the penalty to enforce the individual mandate was not a “tax” — only to have his lawyers argue, after passage, that it was constitutional precisely because it was a “tax.”

There was another bit of cynical maneuvering regarding another ObamaCare provision, also relating to its characterization as a “tax.” Judge Hudson’s opinion in Virginia v. Sebelius sheds light on the common denominator of both maneuvers.

In ruling that the individual-mandate penalty is not a “tax,” Judge Hudson noted the “unequivocal denials by the Executive and Legislative branches that the [legislation] was a tax.” He referenced the Christmas Eve maneuver in the Senate:

Earlier versions of the bill in both the House of Representatives and the Senate used the more politically toxic term “tax” … Each of these earlier versions specifically employed the word “tax” as opposed to “penalty” for the sanction for noncompliance.

In the final version of the [bill] enacted by the Senate on December 24, 2009, the term “penalty” was substituted for “tax” … This shift in terminology during the final hours preceding an extremely close floor vote undermines the contention that the terms “penalty” and “tax” are synonymous.” [Opinion at pp. 33-34]

As I have previously noted, the day before the House vote on ObamaCare, the name of the new “Medicare Tax” on investment income was changed to a “Medicare Contribution.” But the “contribution” had nothing to do with Medicare, since none of the revenue went to the Medicare Trust Fund but instead was designated for the general fund, to be spent for non-Medicare purposes. Like the Christmas Eve maneuver, however, the change avoided the politically toxic term “tax.”

The common goal of these maneuvers was to avoid a political problem for President Obama. He had rejected, in absolute terms, on national television, the idea that the enforcement mechanism for the individual mandate was a tax; when its name was changed to a “penalty,” it was neither an inadvertent nor insignificant change. Likewise, changing the “Medicare Tax” to a “contribution” solved the problem of imposing a substantial new tax on investment income when there was already a plan to increase the tax substantially later by having the Bush tax rates expire.

The solution in both situations was to change the name so that neither the “penalty” nor the “contribution” was a “tax.” The “Medicare Contribution” label reached a new high in legislative cynicism. Is there a name for passing a “Medicare Contribution” in which both words in the name are disingenuous?

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Holder and Sebelius, Looking Very Weak

Eric Holder and Kathleen Sebelius’s Washington Post op-ed responding to yesterday’s federal court ruling on ObamaCare is arresting. Neither its style nor its force is remarkable. Rather, it is arresting in its refusal to call the decision wrong in accordance with the law. Here’s how Holder and Sebelius address yesterday’s judgment: “Opponents claim the individual responsibility provision is unlawful because it ‘regulates inactivity.’ But none of us is a bystander when it comes to health care. All of us need health care eventually.”

This is actually false. Most adults choose to seek health care eventually.  Some of us — and we all know such people — resist health care in every single circumstance. Others — a very lucky minority — are not opposed to seeking health care as a matter of personal policy but never find themselves sick enough to enlist a medical professional. All this is to say Holder and Sebelius brush rather breezily over the sticky question of what constitutes a “need,” and it is a contention about universal need on which they claim the constitutional soundness of ObamaCare. Weak stuff.

Never do they assert that it is lawful to regulate inactivity. Nor do they demonstrate that not purchasing insurance is not inactivity. They treat the issue as some sort of communally understood given, and blur the legal question out of existence. The rest of the op-ed is devoted to the economics of insurance and the mentioning of people who are ill. Both of those are of supreme importance to health-care policy as a whole. But neither has much to do with yesterday’s ruling. So the judge was wrong simply because “none of us is a bystander when it comes to health care” and because people are sick in America. That’s not legal, and if it’s the best they can do, they’re in trouble.

Eric Holder and Kathleen Sebelius’s Washington Post op-ed responding to yesterday’s federal court ruling on ObamaCare is arresting. Neither its style nor its force is remarkable. Rather, it is arresting in its refusal to call the decision wrong in accordance with the law. Here’s how Holder and Sebelius address yesterday’s judgment: “Opponents claim the individual responsibility provision is unlawful because it ‘regulates inactivity.’ But none of us is a bystander when it comes to health care. All of us need health care eventually.”

This is actually false. Most adults choose to seek health care eventually.  Some of us — and we all know such people — resist health care in every single circumstance. Others — a very lucky minority — are not opposed to seeking health care as a matter of personal policy but never find themselves sick enough to enlist a medical professional. All this is to say Holder and Sebelius brush rather breezily over the sticky question of what constitutes a “need,” and it is a contention about universal need on which they claim the constitutional soundness of ObamaCare. Weak stuff.

Never do they assert that it is lawful to regulate inactivity. Nor do they demonstrate that not purchasing insurance is not inactivity. They treat the issue as some sort of communally understood given, and blur the legal question out of existence. The rest of the op-ed is devoted to the economics of insurance and the mentioning of people who are ill. Both of those are of supreme importance to health-care policy as a whole. But neither has much to do with yesterday’s ruling. So the judge was wrong simply because “none of us is a bystander when it comes to health care” and because people are sick in America. That’s not legal, and if it’s the best they can do, they’re in trouble.

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Obama’s Cynical Maneuvering on the Health-Care Mandate

In his 42-page ruling that the keystone provision in President Obama’s health-care law — the mandate to force Americans to purchase health insurance — is unconstitutional, Judge Henry E. Hudson made several powerful arguments. But there is one to which I want to draw particular attention.

On page 25 of his decision, Judge Hudson writes, “Despite pre-enactment representations to the contrary by the Executive and Legislative branches, the Secretary now argues that the Minimum Essential Coverage Provision is, in essence, a ‘tax penalty.’”

That’s a polite way of saying that the Obama administration willfully misled the public during the health-care debate. In fact, President Obama repeatedly denied that the mandate was a tax — but now, in order to pass constitutional muster, his administration is insisting it is. I urge you to watch the president’s interview with ABC’s George Stephanopoulos to see just how emphatic Obama was. When Stephanopoulos says that the mandate is a tax increase, Obama scolds Stephanopoulos. “That’s not true, George,” the president says. “[It] is absolutely not a tax increase.”

Now the president and his administration are arguing exactly the opposite.

This is a deeply cynical maneuver on the part of the man who promised to put an end to cynical political acts. Like so much of what Obama said, this promise was fraudulent. Perhaps the White House press corps will insist that the president and his spokesman explain the inconsistency between what Obama said and what his administration is now asserting.

In his 42-page ruling that the keystone provision in President Obama’s health-care law — the mandate to force Americans to purchase health insurance — is unconstitutional, Judge Henry E. Hudson made several powerful arguments. But there is one to which I want to draw particular attention.

On page 25 of his decision, Judge Hudson writes, “Despite pre-enactment representations to the contrary by the Executive and Legislative branches, the Secretary now argues that the Minimum Essential Coverage Provision is, in essence, a ‘tax penalty.’”

That’s a polite way of saying that the Obama administration willfully misled the public during the health-care debate. In fact, President Obama repeatedly denied that the mandate was a tax — but now, in order to pass constitutional muster, his administration is insisting it is. I urge you to watch the president’s interview with ABC’s George Stephanopoulos to see just how emphatic Obama was. When Stephanopoulos says that the mandate is a tax increase, Obama scolds Stephanopoulos. “That’s not true, George,” the president says. “[It] is absolutely not a tax increase.”

Now the president and his administration are arguing exactly the opposite.

This is a deeply cynical maneuver on the part of the man who promised to put an end to cynical political acts. Like so much of what Obama said, this promise was fraudulent. Perhaps the White House press corps will insist that the president and his spokesman explain the inconsistency between what Obama said and what his administration is now asserting.

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Federal Judge Rules ObamaCare Provision Unconstitutional

A Virginia federal judge has ruled that a key provision of ObamaCare is unconstitutional. “U.S. District Court Judge Henry E. Hudson found that Congress could not order individuals to buy health insurance,” the Washington Post reports. Yes, this was somewhat inevitable. And there will likely be similar rulings in the near future. The Supreme Court will eventually resolve the question of ObamaCare’s constitutionality one way or another.

But today’s ruling, coming when it did, is important beyond its implications for the fate of the health-care overhaul. For it is one more data point in a seemingly endless narrative of administration setbacks. Every failure is now a compounded failure. Furthermore, this is yet another setback about which Obama can do precious little. After a term of ferocious activism, this administration is stuck watching its own deficiencies play out along with the rest of us.

Bill Clinton couldn’t be reached for comment.

A Virginia federal judge has ruled that a key provision of ObamaCare is unconstitutional. “U.S. District Court Judge Henry E. Hudson found that Congress could not order individuals to buy health insurance,” the Washington Post reports. Yes, this was somewhat inevitable. And there will likely be similar rulings in the near future. The Supreme Court will eventually resolve the question of ObamaCare’s constitutionality one way or another.

But today’s ruling, coming when it did, is important beyond its implications for the fate of the health-care overhaul. For it is one more data point in a seemingly endless narrative of administration setbacks. Every failure is now a compounded failure. Furthermore, this is yet another setback about which Obama can do precious little. After a term of ferocious activism, this administration is stuck watching its own deficiencies play out along with the rest of us.

Bill Clinton couldn’t be reached for comment.

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Missed Opportunity in Assange Bail Request

As London’s Independent reports, Julian Assange was refused bail, despite this offer by some devoted fans:

Jemima Khan, the sister of Tory MP Zac Goldsmith, film director Ken Loach and veteran journalist John Pilger all offered to stand as surety for Assange.

We understand the judge’s concerns that if Assange were released on bail, he might disappear again. Still, the risk was far outweighed by the benefit of having Khan, Loach, and Pilger behind bars.

Clearly, a missed opportunity!

As London’s Independent reports, Julian Assange was refused bail, despite this offer by some devoted fans:

Jemima Khan, the sister of Tory MP Zac Goldsmith, film director Ken Loach and veteran journalist John Pilger all offered to stand as surety for Assange.

We understand the judge’s concerns that if Assange were released on bail, he might disappear again. Still, the risk was far outweighed by the benefit of having Khan, Loach, and Pilger behind bars.

Clearly, a missed opportunity!

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The Bush Comeback

According to Politico:

George W. Bush’s job approval rating as president has spiked to 47 percent, according to a Gallup poll released Monday. That’s one point higher than President Barack Obama’s job approval rating in a poll taken the same week.

This is the first time Gallup asked Americans to retrospectively rate Bush’s job performance. And it was a stunning turnaround from his low point of 25 percent in November 2008. The 47 percent number is 13 points higher than the last Gallup poll taken before Bush left office in 2009 and the highest rating for him since before Hurricane Katrina in 2005.

Politico goes on to report:

Bush’s 47 percent approval rating also raises serious questions about the wisdom of the White House’s decision to relentlessly attack him in the months before the Democrats’ historic losses in the midterm elections. The president had kept warning a House Republican majority would return to Bush-era policies. But Obama’s message did little to galvanize the liberal base, and independents flocked to the GOP on Election Day.

Bush’s rebound gives some credence to what he has long said – that history will eventually judge his presidency.

I know enough to know that public opinion polls are merely snapshots in time, that they can change quickly, and that they certainly do not constitute a final judgment on events. (The surge was extremely unpopular before it began to work, it should be pointed out.) We are still a long way from having anything like a reasonable historical verdict on either the Bush or the Obama presidency. Still, the most recent Gallup findings are noteworthy. The Bush Comeback is coming along rather well. Like some of his predecessors, with the passage of time, Bush’s strengths and achievements are coming into sharper focus. I would say the same thing about his successor’s weaknesses and failures.

According to Politico:

George W. Bush’s job approval rating as president has spiked to 47 percent, according to a Gallup poll released Monday. That’s one point higher than President Barack Obama’s job approval rating in a poll taken the same week.

This is the first time Gallup asked Americans to retrospectively rate Bush’s job performance. And it was a stunning turnaround from his low point of 25 percent in November 2008. The 47 percent number is 13 points higher than the last Gallup poll taken before Bush left office in 2009 and the highest rating for him since before Hurricane Katrina in 2005.

Politico goes on to report:

Bush’s 47 percent approval rating also raises serious questions about the wisdom of the White House’s decision to relentlessly attack him in the months before the Democrats’ historic losses in the midterm elections. The president had kept warning a House Republican majority would return to Bush-era policies. But Obama’s message did little to galvanize the liberal base, and independents flocked to the GOP on Election Day.

Bush’s rebound gives some credence to what he has long said – that history will eventually judge his presidency.

I know enough to know that public opinion polls are merely snapshots in time, that they can change quickly, and that they certainly do not constitute a final judgment on events. (The surge was extremely unpopular before it began to work, it should be pointed out.) We are still a long way from having anything like a reasonable historical verdict on either the Bush or the Obama presidency. Still, the most recent Gallup findings are noteworthy. The Bush Comeback is coming along rather well. Like some of his predecessors, with the passage of time, Bush’s strengths and achievements are coming into sharper focus. I would say the same thing about his successor’s weaknesses and failures.

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Euro-Freedom Watch

With little fanfare, the EU adopted new legislation this week that makes “certain forms and expressions of racism and xenophobia” criminal offenses — and allows individual EU nations to prosecute the citizens of other nations for those offenses. And no, it’s not European anti-Americanism that’s being targeted by the xenophobia provisions. Advocates of free speech in Europe are quite clear that what the new law will criminalize is analytical, factual, or hortatory discussion of Islam and Sharia by non-Muslims.

Their conclusion is bolstered by recent events. Geert Wilders of the Netherlands is only the most famous of several Europeans who have faced criminal charges for speaking critically of Islam. Another is Austrian journalist and activist Elisabeth Sabaditsch-Wolff, whose trial for “hate speech” opened in Vienna on November 23. Take a moment to read publicized transcripts of the proceedings; it is worth understanding that Sabaditsch-Wolff is being tried, literally, for quoting both the Koran and an authoritative work on Sunni law, and expressing criticism of the social institutions condoned in those religious texts.

She is not a cartoonist lampooning Muhammad, something most Westerners would recognize as less than respectful even if they didn’t all agree that it was “offensive.” Sabaditsch-Wolff quotes the texts of Islam seriously and accurately; she objects to their implications, but she doesn’t poke fun at them. However, as Ned May observes at Andrew Breitbart’s Big Peace:

It has been well-established in a number of jurisdictions — including several in the West — that a non-Muslim who quotes the Koran accurately can still be convicted of “hate speech”. This aligns with the definition of Islamic slander (also to be found in [Sunni law document] Reliance) which considers anything that insults Islam, whether true or false, to be defamation.

The author at the pseudonymous Daphne Anson blog (top link) wonders what will happen if Turkey is finally admitted to the EU, given the newly approved framework allowing cross-border prosecutions in Europe. But I am inclined to wonder how the other nations will react to being in the same union with Austria and the Netherlands, which have already shown a willingness to prosecute free speech as a hate crime. The charges against Elisabeth Sabaditsch-Wolff are centered on questions like these, brought up one after another on the first day of her trial:

10:53: The judge inquires if we are talking about Islamic extremism, or of Islam as such?

Elisabeth explains that we are talking Islam as such, as defined by its scripture, and quotes Erdogan that there is no moderate Islam anyway.

The intellectual basis for her certainty (or the judge’s, for that matter) is not the issue here, nor should it be. The issue is that she is being prosecuted for forensic, critical investigation of Islam: for advancing opinions we hear argued nightly on American TV talk shows. The most basic of intellectual freedoms — attributing facts to sources and expressing opinions about them — is in the process of being criminalized in parts of the EU. Free-speech advocates fear that the new Framework Decision on Racism and Xenophobia will spread this trend toward criminalization across borders throughout Europe. They are justified in their concern.

With little fanfare, the EU adopted new legislation this week that makes “certain forms and expressions of racism and xenophobia” criminal offenses — and allows individual EU nations to prosecute the citizens of other nations for those offenses. And no, it’s not European anti-Americanism that’s being targeted by the xenophobia provisions. Advocates of free speech in Europe are quite clear that what the new law will criminalize is analytical, factual, or hortatory discussion of Islam and Sharia by non-Muslims.

Their conclusion is bolstered by recent events. Geert Wilders of the Netherlands is only the most famous of several Europeans who have faced criminal charges for speaking critically of Islam. Another is Austrian journalist and activist Elisabeth Sabaditsch-Wolff, whose trial for “hate speech” opened in Vienna on November 23. Take a moment to read publicized transcripts of the proceedings; it is worth understanding that Sabaditsch-Wolff is being tried, literally, for quoting both the Koran and an authoritative work on Sunni law, and expressing criticism of the social institutions condoned in those religious texts.

She is not a cartoonist lampooning Muhammad, something most Westerners would recognize as less than respectful even if they didn’t all agree that it was “offensive.” Sabaditsch-Wolff quotes the texts of Islam seriously and accurately; she objects to their implications, but she doesn’t poke fun at them. However, as Ned May observes at Andrew Breitbart’s Big Peace:

It has been well-established in a number of jurisdictions — including several in the West — that a non-Muslim who quotes the Koran accurately can still be convicted of “hate speech”. This aligns with the definition of Islamic slander (also to be found in [Sunni law document] Reliance) which considers anything that insults Islam, whether true or false, to be defamation.

The author at the pseudonymous Daphne Anson blog (top link) wonders what will happen if Turkey is finally admitted to the EU, given the newly approved framework allowing cross-border prosecutions in Europe. But I am inclined to wonder how the other nations will react to being in the same union with Austria and the Netherlands, which have already shown a willingness to prosecute free speech as a hate crime. The charges against Elisabeth Sabaditsch-Wolff are centered on questions like these, brought up one after another on the first day of her trial:

10:53: The judge inquires if we are talking about Islamic extremism, or of Islam as such?

Elisabeth explains that we are talking Islam as such, as defined by its scripture, and quotes Erdogan that there is no moderate Islam anyway.

The intellectual basis for her certainty (or the judge’s, for that matter) is not the issue here, nor should it be. The issue is that she is being prosecuted for forensic, critical investigation of Islam: for advancing opinions we hear argued nightly on American TV talk shows. The most basic of intellectual freedoms — attributing facts to sources and expressing opinions about them — is in the process of being criminalized in parts of the EU. Free-speech advocates fear that the new Framework Decision on Racism and Xenophobia will spread this trend toward criminalization across borders throughout Europe. They are justified in their concern.

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A Response to John Derbyshire

In his post responding to George W. Bush’s op-ed on combating AIDS in Africa, John Derbyshire writes this:

The subsidizing of expensive medications (the biggest part of our AIDS-relief effort, though not all of it) in fact has long-term consequences more likely to be negative than positive. The high incidence of AIDS in sub-Saharan Africa is caused by customary practices there. What is needed is for people to change those customary practices. Instead, at a cost of billions to the U.S. taxpayer, we have made it possible for Africans to continue in their unhealthy, disease-spreading habits.

Perhaps the future of sub-Saharan Africa would be brighter if the people of that place changed some of their customs; but now, thanks to us, they don’t have to.

Here are a few facts that undermine Derbyshire’s case: (a) Africans have fewer sex partners on average over a lifetime than do Americans; (b) 22 countries in Africa have had a greater than 25 percent decline in infections in the past 10 years (for South African and Namibian youth, the figure is 50 percent in five years); and (c) America’s efforts are helping to create a remarkable shifts in how, in Africa, boys view girls — reflected in a decline of more than 50 percent in sexual partners among boys.

So Derbyshire’s argument that our AIDS efforts are “more likely to be negative than positive” because they will continue to subsidize and encourage “unhealthy, disease-spreading habits” is not only wrong but the opposite of reality.

There is more. Derbyshire’s view might best be expressed as “the Africans had an AIDS death sentence coming to them.” But in Africa, gender violence and abuse is involved in the first sexual encounter up to 85 percent of time. And where President Bush’s PEPFAR initiative has been particularly effective is in slowing the transmission of the disease from mothers to children. Perhaps Derbyshire can explain to us how exactly infants are complicit in their AIDS affliction. Or maybe he doesn’t much care if they are. Read More

In his post responding to George W. Bush’s op-ed on combating AIDS in Africa, John Derbyshire writes this:

The subsidizing of expensive medications (the biggest part of our AIDS-relief effort, though not all of it) in fact has long-term consequences more likely to be negative than positive. The high incidence of AIDS in sub-Saharan Africa is caused by customary practices there. What is needed is for people to change those customary practices. Instead, at a cost of billions to the U.S. taxpayer, we have made it possible for Africans to continue in their unhealthy, disease-spreading habits.

Perhaps the future of sub-Saharan Africa would be brighter if the people of that place changed some of their customs; but now, thanks to us, they don’t have to.

Here are a few facts that undermine Derbyshire’s case: (a) Africans have fewer sex partners on average over a lifetime than do Americans; (b) 22 countries in Africa have had a greater than 25 percent decline in infections in the past 10 years (for South African and Namibian youth, the figure is 50 percent in five years); and (c) America’s efforts are helping to create a remarkable shifts in how, in Africa, boys view girls — reflected in a decline of more than 50 percent in sexual partners among boys.

So Derbyshire’s argument that our AIDS efforts are “more likely to be negative than positive” because they will continue to subsidize and encourage “unhealthy, disease-spreading habits” is not only wrong but the opposite of reality.

There is more. Derbyshire’s view might best be expressed as “the Africans had an AIDS death sentence coming to them.” But in Africa, gender violence and abuse is involved in the first sexual encounter up to 85 percent of time. And where President Bush’s PEPFAR initiative has been particularly effective is in slowing the transmission of the disease from mothers to children. Perhaps Derbyshire can explain to us how exactly infants are complicit in their AIDS affliction. Or maybe he doesn’t much care if they are.

Let’s now turn to Derbyshire’s characterization that America is becoming the “welfare provider of last resort to all the world’s several billion people”: he is more than a decade behind in his understanding of overseas-development policy.

President Bush’s policies were animated by the belief that the way to save lives was to rely on the principle of accountability. That is what was transformational about Bush’s development effort. He rejected handing out money with no strings attached in favor of tying expenditures to reform and results. And it has had huge radiating effects. When PEPFAR was started, America was criticized by others for setting goals. Now the mantra around the world is “results-based development.” Yet Derbyshire seems to know nothing about any of this. That isn’t necessarily a problem — unless, of course, he decides to write on the topic.

Beyond that, though, the notion that AIDS relief in Africa is AFDC on a global scale is silly. We are not talking about providing food stamps to able-bodied adults or subsidizing illegitimacy; we’re talking about saving the lives of millions of innocent people and taking steps to keep human societies from collapsing. Private charity clearly wasn’t enough.

On the matter of Derbyshire’s claim that AIDS relief in Africa is unconnected to our national interest: al-Qaeda is actively trying to establish a greater presence in nations like Tanzania, Kenya, and Nigeria, which have become major ideological battlegrounds. And mass disease and death, poverty and hopelessness, make the rise of radicalism more, not less, likely. (Because of AIDS, in some countries nearly a half-century of public-health gains have been wiped away.)

Many things allow militant Islam to take root and grow; eliminating AIDS would certainly not eliminate jihadism. Still, a pandemic, in addition to being a human tragedy, makes governments unstable and regions ungovernable. And as one report put it, “Unstable and ungoverned regions of the world … pose dangers for neighbors and can become the setting for broader problems of terrorism … The impoverished regions of the world can be unstable, volatile, and dangerous and can represent great threats to America, Europe, and the world. We must work with the people of these regions to promote sustainable economic growth, better health, good governance and greater human security. …”

One might think that this observation very nearly qualifies as banal — but for Derbyshire, it qualifies as a revelation.

For the sake of the argument, though, let’s assume that the American government acts not out of a narrow interpretation of the national interest but instead out of benevolence — like, say, America’s response to the 2004 tsunami that hit Indonesia and other nations in the Indian Ocean. Why is that something we should oppose, or find alarming, or deem un-conservative? The impulse to act is, in fact, not only deeply humane but also deeply American.

In a speech in Lewiston, Illinois, in 1858, Abraham Lincoln, in quoting from the Declaration (“all men are created equal … endowed by their Creator with certain unalienable right”), said:

This was their majestic interpretation of the economy of the Universe. This was their lofty, and wise, and noble understanding of the justice of the Creator to His creatures. Yes, gentlemen, to all His creatures, to the whole great family of man. In their enlightened belief, nothing stamped with the Divine image and likeness was sent into the world to be trodden on, and degraded, and imbruted by its fellows.

This belief about inherent human dignity does not mean that America can solve every problem in the world or that we shouldn’t focus most of our energy and treasure on America itself. But if the United States is able, at a reasonable cost ($25 billion over five years), to help prevent widespread death, that is something we should be proud of it. (A recent Stanford study found that PEPFAR was responsible for saving the lives of more than a million Africans in just its first three years.)

Derbyshire seems to take an almost childish delight in advertising his indifference to the suffering of others, at least when the others live on a different continent and come from a different culture. Back in February 2006, when more than 1,000 people were believed to have died when an Egyptian ferry sank in the Red Sea, Derbyshire wrote:

In between our last two posts I went to Drudge to see what was happening in the world. The lead story was about a ship disaster in the Red Sea. From the headline picture, it looked like a cruise ship. I therefore assumed that some people very much like the Americans I went cruising with last year were the victims. I went to the news story. A couple of sentences in, I learned that the ship was in fact a ferry, the victims all Egyptians. I lost interest at once, and stopped reading. I don’t care about Egyptians.

Cultivating what Adam Smith (in The Theory of Moral Sentiments) called “sympathy” and “fellow feeling” is a complicated matter. Suffice it to say that very few of us care about the suffering and fate of others as much as we should. Yet most of us aren’t proud of this fact; we are, rather, slightly embarrassed by it. Not John Derbyshire. He seems eager to celebrate his callousness, as if it were a sign of manliness and tough-mindedness. I haven’t a clue whether this is a pose, done for shock value or some such thing, or real. All we can do is judge Derbyshire by his public words. And they are not only unpersuasive; they are at times downright ugly.

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Flotsam and Jetsam

I’m with Ben Chandler on this one. “Kentucky Rep. Ben Chandler is blaming President Barack Obama and House Speaker Nancy Pelosi for the Democrats’ poor showing nationally in the Nov. 2 elections. … ‘If not there, where else does the responsibility lie? … You’re talking about the loss of 60 or something seats held by capable public servants. There had to be something going on at a level above them. If that isn’t the lesson, I don’t know what is.’”

I’m with Jeffrey Rosen on this one. “In a 2006 opinion for the U.S. Court of Appeals for the 3rd Circuit, then-Judge Samuel Alito stressed that screening procedures must be both ‘minimally intrusive’ and “effective” — in other words, they must be ‘well-tailored to protect personal privacy,’ and they must deliver on their promise of discovering serious threats. … As currently used in U.S. airports, the new full-body scanners fail all of Alito’s tests.” Read the whole thing — it’s quite persuasive.

I’m with Norm Coleman on this one. “Former Minnesota Sen. Norm Coleman had some unsolicited advice for fellow Republican Joe Miller: It’s time to quit. ‘I think that race is over. I think the counting’s been done. I’m not sure there’s anything that would change that,’ Coleman told C-SPAN in an interview set to air on Sunday. Coleman himself fought until the bitter end of his 2008 Senate race against Democrat Al Franken, which dragged on for seven months because of a recount and legal challenges.”

I’m with John McCain on this one: “Sen. John McCain (R-Ariz.) argued in an interview Sunday that the U.S. has not exacted enough pressure on North Korea and that the current tensions in the region may present an opportunity for regime change. ‘I think it’s time we talked about regime change in North Korea,’ he said, quickly adding that he did not mean ‘military action.’”

I’m with King Abdullah of Saudi Arabia on this one. In regards to Iran, apparently he’d been warning the administration to “‘cut off the head of the snake’ while there was still time.” But the Obami are too busy obsessing over non-direct, non-peace talks that are going nowhere.

I’m with Josh Block on this one. “One of the most interesting overall themes is the restraint seen to typify the Israelis on Iran, in contrast to the typical Brzezinski, Scowcroft, Walt/Mearsheimer, Glenn Greenwald-Neo-progressive, netroots claims Israel is trying to prod us to fight and bomb Iran for them. In the end, one of the most obvious take-aways from these WikiLeaks documents is devastating to the whole Left/Realist narrative about Israeli manipulation. The Israelis come off as cool customers, while the Arabs are the ones freaking out, justifiably many would argue, and literally demanding the U.S. bomb the Iranian nuclear program.”

I’m with Lindsey Graham on this one. “I think it is a big mistake to criminalize the war, to take someone you’ve held under the law of war as an enemy combatant for six or seven years, then put them in civilian court. It is a disaster waiting to happen. I believe I got the votes to block it. I don’t think Khalid Sheikh Mohammed will ever get congressional approval to see a civilian court. He should be tried at Guantanamo Bay. He should be tried now. He was ready to plead guilty before the Obama administration stopped the trial. We should have him in a military commission trial beginning Monday and get this case behind us.”

I’m with Ben Chandler on this one. “Kentucky Rep. Ben Chandler is blaming President Barack Obama and House Speaker Nancy Pelosi for the Democrats’ poor showing nationally in the Nov. 2 elections. … ‘If not there, where else does the responsibility lie? … You’re talking about the loss of 60 or something seats held by capable public servants. There had to be something going on at a level above them. If that isn’t the lesson, I don’t know what is.’”

I’m with Jeffrey Rosen on this one. “In a 2006 opinion for the U.S. Court of Appeals for the 3rd Circuit, then-Judge Samuel Alito stressed that screening procedures must be both ‘minimally intrusive’ and “effective” — in other words, they must be ‘well-tailored to protect personal privacy,’ and they must deliver on their promise of discovering serious threats. … As currently used in U.S. airports, the new full-body scanners fail all of Alito’s tests.” Read the whole thing — it’s quite persuasive.

I’m with Norm Coleman on this one. “Former Minnesota Sen. Norm Coleman had some unsolicited advice for fellow Republican Joe Miller: It’s time to quit. ‘I think that race is over. I think the counting’s been done. I’m not sure there’s anything that would change that,’ Coleman told C-SPAN in an interview set to air on Sunday. Coleman himself fought until the bitter end of his 2008 Senate race against Democrat Al Franken, which dragged on for seven months because of a recount and legal challenges.”

I’m with John McCain on this one: “Sen. John McCain (R-Ariz.) argued in an interview Sunday that the U.S. has not exacted enough pressure on North Korea and that the current tensions in the region may present an opportunity for regime change. ‘I think it’s time we talked about regime change in North Korea,’ he said, quickly adding that he did not mean ‘military action.’”

I’m with King Abdullah of Saudi Arabia on this one. In regards to Iran, apparently he’d been warning the administration to “‘cut off the head of the snake’ while there was still time.” But the Obami are too busy obsessing over non-direct, non-peace talks that are going nowhere.

I’m with Josh Block on this one. “One of the most interesting overall themes is the restraint seen to typify the Israelis on Iran, in contrast to the typical Brzezinski, Scowcroft, Walt/Mearsheimer, Glenn Greenwald-Neo-progressive, netroots claims Israel is trying to prod us to fight and bomb Iran for them. In the end, one of the most obvious take-aways from these WikiLeaks documents is devastating to the whole Left/Realist narrative about Israeli manipulation. The Israelis come off as cool customers, while the Arabs are the ones freaking out, justifiably many would argue, and literally demanding the U.S. bomb the Iranian nuclear program.”

I’m with Lindsey Graham on this one. “I think it is a big mistake to criminalize the war, to take someone you’ve held under the law of war as an enemy combatant for six or seven years, then put them in civilian court. It is a disaster waiting to happen. I believe I got the votes to block it. I don’t think Khalid Sheikh Mohammed will ever get congressional approval to see a civilian court. He should be tried at Guantanamo Bay. He should be tried now. He was ready to plead guilty before the Obama administration stopped the trial. We should have him in a military commission trial beginning Monday and get this case behind us.”

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Outreach to Egypt?

The Obami, sensitive to accusations that they have been slothful on human rights, recently held a meeting with activists and foreign policy gurus on how they might promote democracy in Egypt. (Perhaps not giving the regime $1.5B free and clear would be a start.) But while the Obama team is having meetings, the Mubarak government is continuing its thuggish tactics:

Egypt’s parliamentary elections Sunday have been ushered in by one of the most sweeping campaigns to silence critics since President Hosni Mubarak came to power nearly 30 years ago, with the government seemingly determined to shut out its top rival, the fundamentalist Muslim Brotherhood.

In the weeks leading up to the vote, police and armed gangs have broken up campaign events by Brotherhood candidates – even attacking the movement’s top member in parliament in his car. More than 1,000 Brotherhood supporters have been arrested during the election campaign.

The measures have been so dramatic that a judge in an administrative court in Egypt’s second city of Alexandria late on Wednesday ordered elections to be halted in at least 10 out of 11 city districts because so many candidates, particularly from the Brotherhood, had been disqualified by authorities.

This, quite plainly, is yet another snub of Obama personally. Just as the North Koreans see no downside to attacking its neighbor, Mubarak expects no adverse consequences from snubbing the U.S. president. Eli Lake observes:

Cairo’s snubbing of Mr. Obama follows the U.S. president’s run of hard luck in general on Middle East diplomacy. This month, Iraqi President Jalal Talabani rejected Mr. Obama’s personal request to relinquish the presidency. In 2009, the Iranian government rejected multiple offers from Mr. Obama to resume direct negotiations.

The mood from official Cairo was captured in a front-page editorial this week in the state-run and -funded newspaper, Al-Ahram, which often serves as a weather vane for the thinking inside the Mubarak regime.

“America and its experts should know and realize the Egyptian leadership role,” al-Ahram’s editor, Osama Saraya, said in the editorial. “Egypt has played and plays an important role in matters of regional peace and security … and is capable of bringing regional stability to all the areas that are regressing due to wrong U.S. policies in Sudan, Iraq, Lebanon and Palestine. … The United States is the one that ought to listen to Egypt, and not the other way around.”

In other words, the least-effective human rights policy in decades has contributed to the most egregious human right violations in decades and exposed our lack of influence in the region. We should not be surprised nor should we underestimate the degree to which Obama’s policy is both morally feckless and strategically flawed. Egypt is a tinderbox, increasingly polarized between an authoritarian government and the Muslim Brotherhood. And the Egyptian democracy activists are disillusioned by the American administration.

We might try some real Muslim Outreach — a policy of increased support for democratizers, financial support for Egypt conditioned on progress on human rights, and forceful public rhetoric (rather than the mute routine Hillary put on during the foreign minister’s recent visit). The problem with Muslim Outreach is not that we are doing it but that we are doing it so badly. And in the process, we’re proving that America is declining in influence in the region.

The Obami, sensitive to accusations that they have been slothful on human rights, recently held a meeting with activists and foreign policy gurus on how they might promote democracy in Egypt. (Perhaps not giving the regime $1.5B free and clear would be a start.) But while the Obama team is having meetings, the Mubarak government is continuing its thuggish tactics:

Egypt’s parliamentary elections Sunday have been ushered in by one of the most sweeping campaigns to silence critics since President Hosni Mubarak came to power nearly 30 years ago, with the government seemingly determined to shut out its top rival, the fundamentalist Muslim Brotherhood.

In the weeks leading up to the vote, police and armed gangs have broken up campaign events by Brotherhood candidates – even attacking the movement’s top member in parliament in his car. More than 1,000 Brotherhood supporters have been arrested during the election campaign.

The measures have been so dramatic that a judge in an administrative court in Egypt’s second city of Alexandria late on Wednesday ordered elections to be halted in at least 10 out of 11 city districts because so many candidates, particularly from the Brotherhood, had been disqualified by authorities.

This, quite plainly, is yet another snub of Obama personally. Just as the North Koreans see no downside to attacking its neighbor, Mubarak expects no adverse consequences from snubbing the U.S. president. Eli Lake observes:

Cairo’s snubbing of Mr. Obama follows the U.S. president’s run of hard luck in general on Middle East diplomacy. This month, Iraqi President Jalal Talabani rejected Mr. Obama’s personal request to relinquish the presidency. In 2009, the Iranian government rejected multiple offers from Mr. Obama to resume direct negotiations.

The mood from official Cairo was captured in a front-page editorial this week in the state-run and -funded newspaper, Al-Ahram, which often serves as a weather vane for the thinking inside the Mubarak regime.

“America and its experts should know and realize the Egyptian leadership role,” al-Ahram’s editor, Osama Saraya, said in the editorial. “Egypt has played and plays an important role in matters of regional peace and security … and is capable of bringing regional stability to all the areas that are regressing due to wrong U.S. policies in Sudan, Iraq, Lebanon and Palestine. … The United States is the one that ought to listen to Egypt, and not the other way around.”

In other words, the least-effective human rights policy in decades has contributed to the most egregious human right violations in decades and exposed our lack of influence in the region. We should not be surprised nor should we underestimate the degree to which Obama’s policy is both morally feckless and strategically flawed. Egypt is a tinderbox, increasingly polarized between an authoritarian government and the Muslim Brotherhood. And the Egyptian democracy activists are disillusioned by the American administration.

We might try some real Muslim Outreach — a policy of increased support for democratizers, financial support for Egypt conditioned on progress on human rights, and forceful public rhetoric (rather than the mute routine Hillary put on during the foreign minister’s recent visit). The problem with Muslim Outreach is not that we are doing it but that we are doing it so badly. And in the process, we’re proving that America is declining in influence in the region.

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Now THIS Is a Motion

A genuinely delightful moment at the bar, courtesy of a lawyer named Bennett Epstein and Judge Kimba Wood of the Southern District of New York (hat tip: Jennifer Courtian Troy):

November 17,2010

Hon. Kimba M. Wood
Re: United States v. Lacey, et aI.

Dear Judge Wood:

I represent Mark Barnett in the above matter, which is scheduled for trial beginning November 29th. Please consider this letter as an application in limine for a brief recess in the  middle of the trial on the grounds known (perhaps not now, but hereafter) as a “writ of possible simcha.”*

The facts are as follows: My beautiful daughter, Eva, married and with a doctorate no less, and her husband, Ira Greenberg (we like him, too) live in Philadelphia and are expecting their first child on December 3rd, tfu tfu tfu.** They do not know whether it will be a boy or a girl, although from the oval shape of Eva’s tummy, many of the friends and family are betting male (which I think is a mere bubbameiseh*** but secretly hope is true).

Should the child be a girl. not much will happen in the way of public celebration. Some may even be disappointed, but will do their best to conceal this by saying, “as long as it’s a healthy baby.” healthy baby”. My wife will run to Philly immediately, but I will probably be able wait until the next weekend. There will be happiness, though muted, and this application will be mooted as well.

However, should the baby be a boy, then hoo hah****! Hordes of friends and family will arrive from around the globe and descend on Philadelphia for the joyous celebration mandated by the halacha***** to take place during daylight hours on the eighth day, known as the bris******. The eighth day after December 3rd could be right in the middle of the trial. My presence at the bris is not strictly commanded, although my absence will never be forgotten by those that matter.

So please consider this an application for maybe, tfu tfu tfu, a day off during the trial, if the foregoing occurs on a weekday. I will let the Court (and the rest of the world) know as soon as I do, and promise to bring pictures.

Very truly yours,

* Yiddish (and Hebrew) for “celebration of a happy event.”

**Another Yiddishisrn, found in other cultures as well. that requires we spit to ward off the “evil eye” when discussing an upcoming simcha.

***As you may have already guessed, Yiddish for “old wives tale”. A “mere bubbameiseh” is somewhat less reliable.

**** Yiddish for “a big fuss”.

*****Jewish law (citation omitted).

******Hebrew for “covenant”, for the Covenant of Abraham, i.e, ritual circumcision, joyous to everyone except, apparently, the baby.

Wood’s handwritten response:

Wood

A genuinely delightful moment at the bar, courtesy of a lawyer named Bennett Epstein and Judge Kimba Wood of the Southern District of New York (hat tip: Jennifer Courtian Troy):

November 17,2010

Hon. Kimba M. Wood
Re: United States v. Lacey, et aI.

Dear Judge Wood:

I represent Mark Barnett in the above matter, which is scheduled for trial beginning November 29th. Please consider this letter as an application in limine for a brief recess in the  middle of the trial on the grounds known (perhaps not now, but hereafter) as a “writ of possible simcha.”*

The facts are as follows: My beautiful daughter, Eva, married and with a doctorate no less, and her husband, Ira Greenberg (we like him, too) live in Philadelphia and are expecting their first child on December 3rd, tfu tfu tfu.** They do not know whether it will be a boy or a girl, although from the oval shape of Eva’s tummy, many of the friends and family are betting male (which I think is a mere bubbameiseh*** but secretly hope is true).

Should the child be a girl. not much will happen in the way of public celebration. Some may even be disappointed, but will do their best to conceal this by saying, “as long as it’s a healthy baby.” healthy baby”. My wife will run to Philly immediately, but I will probably be able wait until the next weekend. There will be happiness, though muted, and this application will be mooted as well.

However, should the baby be a boy, then hoo hah****! Hordes of friends and family will arrive from around the globe and descend on Philadelphia for the joyous celebration mandated by the halacha***** to take place during daylight hours on the eighth day, known as the bris******. The eighth day after December 3rd could be right in the middle of the trial. My presence at the bris is not strictly commanded, although my absence will never be forgotten by those that matter.

So please consider this an application for maybe, tfu tfu tfu, a day off during the trial, if the foregoing occurs on a weekday. I will let the Court (and the rest of the world) know as soon as I do, and promise to bring pictures.

Very truly yours,

* Yiddish (and Hebrew) for “celebration of a happy event.”

**Another Yiddishisrn, found in other cultures as well. that requires we spit to ward off the “evil eye” when discussing an upcoming simcha.

***As you may have already guessed, Yiddish for “old wives tale”. A “mere bubbameiseh” is somewhat less reliable.

**** Yiddish for “a big fuss”.

*****Jewish law (citation omitted).

******Hebrew for “covenant”, for the Covenant of Abraham, i.e, ritual circumcision, joyous to everyone except, apparently, the baby.

Wood’s handwritten response:

Wood

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Civilian Trials for Terror Suspects and America’s Image Abroad

The case for handling terrorists outside the civil legal system has now received support from an unlikely quarter: Judge Lewis Kaplan of Federal District Court in Manhattan. Judge Kaplan presided over the trial of Ahmed Ghailani, who was just acquitted in 284 out of 285 counts relating to the 1998 bombing of two U.S. embassies in Africa. The verdict is largely the result of the prosecution’s decision not to introduce Ghailani’s own confession, obtained while he was being held at Guantanamo, and of the judge’s decision not to admit the evidence of a witness who said he had sold Ghailani the explosives used to blow up the embassy in Tanzania. In a fascinating tidbit, the New York Times notes:

The judge himself recognized the significance of excluding the witness when he said in his ruling that Mr. Ghailani’s status of “enemy combatant” probably would permit his detention as something akin “to a prisoner of war until hostilities between the United States and Al Qaeda and the Taliban end, even if he were found not guilty.”

In other words, the judge fully expected that Ghailani would not be released regardless of the outcome in his court. Thankfully, that seems a good bet. For all President Obama’s miscalculation in sending Ghailani to a normal criminal court, he also remains committed to holding some detainees indefinitely simply because of the risk they would pose — a risk that has been amply documented by the number of Gitmo detainees released by the Bush administration who have gone back to terrorism. Ironically, Obama’s decision to employ criminal courts was designed to improve America’s image in the world, but our image will actually suffer more from holding indefinitely a suspect who has been largely acquitted by a jury than it would if there were no jury trial to begin with.

The case for handling terrorists outside the civil legal system has now received support from an unlikely quarter: Judge Lewis Kaplan of Federal District Court in Manhattan. Judge Kaplan presided over the trial of Ahmed Ghailani, who was just acquitted in 284 out of 285 counts relating to the 1998 bombing of two U.S. embassies in Africa. The verdict is largely the result of the prosecution’s decision not to introduce Ghailani’s own confession, obtained while he was being held at Guantanamo, and of the judge’s decision not to admit the evidence of a witness who said he had sold Ghailani the explosives used to blow up the embassy in Tanzania. In a fascinating tidbit, the New York Times notes:

The judge himself recognized the significance of excluding the witness when he said in his ruling that Mr. Ghailani’s status of “enemy combatant” probably would permit his detention as something akin “to a prisoner of war until hostilities between the United States and Al Qaeda and the Taliban end, even if he were found not guilty.”

In other words, the judge fully expected that Ghailani would not be released regardless of the outcome in his court. Thankfully, that seems a good bet. For all President Obama’s miscalculation in sending Ghailani to a normal criminal court, he also remains committed to holding some detainees indefinitely simply because of the risk they would pose — a risk that has been amply documented by the number of Gitmo detainees released by the Bush administration who have gone back to terrorism. Ironically, Obama’s decision to employ criminal courts was designed to improve America’s image in the world, but our image will actually suffer more from holding indefinitely a suspect who has been largely acquitted by a jury than it would if there were no jury trial to begin with.

Read Less




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