RUTHFULLY YOURS

My new book, Faithless Execution, is principally about presidential lawlessness. In addressing that topic, I make the point that it is not lawless for a president to refuse to execute a law as to which he has a good faith constitutional objection.

The Framers, after all, were not just worried about executive overreach; they were at least equally concerned about what Hamilton referred to as “The propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments.” This is relevant to the ongoing controversy about whether, in carrying out his unconscionable swap of five senior Taliban and Haqqani network terrorists, the president acted lawlessly.

A congressional statute—the National Defense Authorization Act—presumes to impose a requirement of 30-days’ notice to lawmakers before the president may transfer enemy combatant detainees out of Guantanamo Bay. There is no question that President Obama willfully ignored this statute—the administration admits as much. But was he obliged to comply with it?

As I’ve been contending, there is a very colorable argument—I would say, a convincing argument—that the statute is unconstitutional. The commander-in-chief in wartime has near-plenary power over the disposition of enemy combatants, and supremacy in the conduct of foreign affairs. Congress may properly use its power of the purse to deny the president funds to transfer prisoners—particularly to transfer them into the United States. But it may not act as super-executive by micromanaging how the president carries out his prerogatives. We may find the president’s decisions in this regard to be reprehensible—I certainly do. But that does not make them unconstitutional … what is unconstitutional is a statute that purports to trim the president’s constitutional powers.

Is that the end of the matter? Not by a long shot. As I’ve also contended, the president’s failure to comply with a dubious statute is a mere footnote to his truly egregious offense: replenishing enemy forces at a time when the enemy is still conducting offensive terrorist operations against our armed forces. It would be difficult to fathom a more outrageous dereliction of duty by the commander-in-chief.

The Wall Street Journal had a fine editorial Monday on President Obama’s reckless decision to negotiate with the Taliban and release from Guantanamo Bay five of its most senior, most capable, most implacably anti-American jihadists for an American army sergeant who, according to accounts from his fellow soldiers, went AWOL in 2009. I addressed the swap in a Corner post over the weekend and in a column yesterday.

Faithless Execution, my book on presidential lawlessness and the Constitution’s ultimate response to it, impeachment, has just been released. I’ve thus been repeatedly asked about the president’s violation of a federal statute in carrying out the exchange and whether this rises to the level of a “high crime and misdemeanor,” the constitutional standard for impeachable offenses that is prominently discussed in my book. This line of inquiry misses the point. There surely is an impeachable offense in this irresponsible deal, but it involves the commander-in-chief’s dereliction of duty, not his failure to comply with dubious statutory terms.

The National Defense Authorization Act states that the president must give Congress 30 days’ notice before transferring war prisoners out of Gitmo, along with an explanation of steps taken to mitigate any potential threat the release poses to the United States. The administration concedes that the president did not comply with this law in releasing the Taliban commanders. The Journal’s editors pooh-pooh the allegation of some Republican lawmakers that this makes the exchange illegal; they argue, to the contrary, that the law is an “unconstitutional” constraint on the president’s “wartime decision-making.” The editors have a point, though one that is undercut by the president himself.

Article II of the Constitution gives the president significant unilateral authority over the conduct of foreign affairs. As commander-in-chief, moreover, the president has traditionally had near plenary authority over the capture and disposition of enemy combatants in wartime. Congress has salient constitutional powers, too. As the Journal points out, Congress could properly have used “its comparably strong power of the purse” to deny the president funding for objectionable prisoner transfers. Instead, with the 30-day notice prescription, it purported to legislate direct limitations on the president’s prerogatives. The president’s commander-in-chief prerogatives may be frustrated by Congress’s exercise of its competing spending power, but Congress may not legislate away the president’s Article II powers—i.e., the Constitution may not be amended by a mere statute. The Journal is right on that score.

The problem in this instance, however, is two-fold. First, there is the now-familiar hypocrisy point. Throughout the Bush administration, when the president relied on his constitutional authority to override congressional restrictions on his wartime surveillance authority and control over enemy combatants, the Left, including then-Senator Obama and many of the lawyers now working in his administration, screamed bloody murder. Some even suggested that he should be impeached for violating the FISA statute. President Obama, of course, is now doing the same thing he and his allies previously condemned. As I contend in Faithless Execution, he is doing it far more sweepingly and systematically than Bush, whose statutory violations occurred in the context of his incontestable war powers and were strongly supported by judicial precedents.

Is European Jew-hatred spreading to America?
The ugly events in Europe over the past two weeks — themurders at the Jewish Museum in Brussels by a French jihadist and alumnus of the Syrian carnage, and the assaulton several French Jews in Paris — have served to confirm what is increasingly obvious: Europe is not a place where Jews are safe or welcome, and it is becomingly increasingly problematic to live visibly as Jews in various countries on the continent.

I am just back from several weeks in Europe. A family member to whom I spoke, who travels regularly to many countries in Europe, admitted sadly that anti-Semitic discourse has become acceptable again all over the continent. For several decades, it was OK to be hostile to Israel, but ill treatment or speaking badly of Jews was verboten. Now, with the multicultural imperative in full swing, and millions of recently arrived Muslims in Europe, the climate for Jews has worsened. But it is not only the recent arrivals who are open about their hatred of Jews.

Public figures in Great Britain and France, ambassadors and legislators among them, have scathingly denounced Jews. Countries are lining up to ban kosher slaughter and circumcision. Denmark, one of the few European countries whose record during the Holocaust is worth remembering for good deeds, apparently is on board with its principal zoo slaughtering a giraffe and then feeding it to lions in front of children, and killing off a few baby lions, but thinks kosher slaughter is inhumane, and that “animal rights come before religion.” The “intactivist” movement is trying to bancircumcision, claiming it is a form of child abuse. Several European communities are on board, including a few in Germany.

Some analysts believe the assault on Jewish ritual practices, including kosher slaughter and circumcision, are in reality aimed at making Europe less friendly to Muslims, who share some of these practices, than one more blast aimed at the shrinking, pretty much negligible Jewish population in most European countries. Muslims already make up 5 percent or more of the population of some European countries (France, Netherlands, Austria, Belgium, Germany, Switzerland, the U.K., Sweden, Macedonia, Bosnia, Albania, Kosovo), and will soon in several more. Jews are but 0.2 percent of Europe’s population, with numbers barely a 10th of the pre-World War II level.

The multicultural commitment of the Left in Europe makes frontal assaults on Islamic practices suspect, so animal rights, and rights of infants, are trotted out as protective cover for the attempt to make these countries less protective of religious rituals.

Democrats are going to face some really hard choices in 2016. Burnishing the image of a mediocre Secretary of State, despite the efforts of the highly mediocre Senator Clare McCaskill, Senator from Missouri, can’t be easy. When it becomes difficult to airbrush the lies, deceptions, and violations of election law, they think Bill Clinton with his charm will ride to her rescue. Well, here is what hubby dearest had to say on Iran in 2005. It’s on the record. And, incidentally Lyndon LaRouche loved it and called his statement “useful truths.”

“Clinton: … Iran’s a whole different kettle of fish—but it’s a sad story that really began in the 1950s when the United States deposed Mr. Mossadegh, who was an elected parliamentary democrat, and brought the Shah back in—[comments in background—Rose says “CIA”] and then he was overturned by the Ayatollah Khomeini, driving us into the arms of one Saddam Hussein. Most of the terrible things Saddam Hussein did in the 1980s he did with the full, knowing support of the United States government, because he was in Iran, and Iran was what it was because we got rid of the parliamentary democracy back in the ’50s; at least, that is my belief.

I know it is not popular for an American ever to say anything like this, but I think it’s true [applause], and I apologized when President Khatami was elected. I publicly acknowledged that the United States had actively overthrown Mossadegh and I apologized for it, and I hope that we could have some rapprochement with Iran. I think basically the Europeans’ initiative to Iran to try to figure out a way to defuse the nuclear crisis is a good one.

I think President Bush has done, so far, the right thing by not taking the military option off the table, but not pushing it too much. I didn’t like the story that looked like the military option had been elevated above a diplomatic option. But Iran is the most perplexing problem … we face, for the following reasons: It is the only country in the world with two governments, and the only country in the world that has now had six elections since the first election of President Khatami. [It is] the only one with elections, including the United States, including Israel, including you name it, where the liberals, or the progressives, have won two-thirds to 70 percent of the vote in six elections: two for President; two for the parliament, the Majlis; two for the mayoralities.

In every single election, the guys I identify with got two-thirds to 70% of the vote. There is no other country in the world I can say that about, certainly not my own.”

The Post-Achievement Politics of Obama and Hillary

Occasionally someone pranks an unwitting MSNBC panelist or a bunch of teenagers by asking them to name a single Hillary accomplishment. Even though Hillary has piled up more awards than Charles de Gaulle, nothing comes to mind. An editorial in the Chicago Tribune has the writer asking a group of Chicago leaders the same question about Obama’s foreign policy.

Silence follows.

Obama and Hillary don’t just suffer from a shortage of accomplishments. They’re also burdened with a surplus of failures. Benghazi worries so many Hillary supporters because there is nothing to balance it against. There is no, “But look at all the good she did.” Hillary didn’t do any good. She didn’t do much of anything except tour countries and pose for photos.

As a Secretary of State she made a perfectly adequate First Lady.

Obama talks the teleprompter talk, but when you look at the results they’re universally awful. Whether it’s the things that he only pretends to care about, like the VA, or the things he does care about, like Obamacare, after the splashy ribbon cutting ceremony comes the disastrous mess.

Like every other summer blockbuster, it’s great marketing for a terrible product. And just like the summer blockbuster, Obama’s actual policies are treated as disposables to be forgotten about. Scandal management consists of Obama making a serious face and promising to take this serious problem very seriously before heading out for a round of serious golfing.

Benghazi, Fast and Furious, the VA; he is just as angry about it as you are. All he’s really doing though is matching your emotional tone to dampen your response. It’s something that everyone from call center operators to customer support executives dealing with angry clients are taught to do. It means as little from Obama as it does from Kathy in Des Moines saying, “I understand you’re angry.”

The bad product stays bad and the customer feels as if someone is listening to him. It’s not failure. It’s liberalism.

So don’t cry for Hillary and don’t write off Obama. Achievement of the old kind is very overrated. It’s not about how high your GPA is but how many politically correct extracurriculars you have. In politics, just like in college, diversity and style increasingly count for more than achievement.

Post-American politics are also post-achievement politics. The morality of progressivism is more important than the substance of progress.

I keep wondering what it must have been like to be a young student at West Point listening to their Commander in Chief’s platitudes and ignorance wash over them. West Point is where our nation’s future leaders in war receive an education in how to protect the nation by crushing our enemies, if Presidents and Congress will let them.

Unfortunately for them, this President seems to think that climate change is the nation’s biggest enemy and that a loose coalition of Islamic fanatics is the other. There was no talk of an increasingly aggressive China, a Russia that seized Crimea and would like a chunk of the Ukraine, or an Iran that got out from under some strong financial sanctions and will continue to build its own nuclear weapons no matter what Obama and other negotiators may want.

Meanwhile, the Egyptians have decided they would prefer a military dictator again as their president instead of a leader from the Muslim Brotherhood. Such choices are endemic to the Middle East. Real democracy is rare there. In Syria its dictator, Bashar al Assad, is still in power when, it could be argued, a few hours spent bombing his air force and other military facilities might have cost him his job and saved over 160,000 lives. So now Obama is reluctantly arming his opposition, some of whom could end up being as oppressive as al Assad.

The highlight of Obama’s speech was his announcement that the U.S. would be out of Afghanistan by 2016 except for a small force to train its military. Here’s what I had to say about Afghanistan in November 2009, a few months into Obama’s first term:

“If you look back, you discover that the former Soviet Union had 100,000 troops there and spent ten years in Afghanistan…one day in 1989 they just packed up and went home to Russia. Shortly thereafter the Berlin Wall fell, followed by the entire Soviet government in 1991.” And Afghanistan was deemed by Obama to be a “war of necessity.” Americans in 2009 would have been happy to depart, having been there for eight years with nothing to show for it.

Presidents who do not get the waging of war right end up killing a lot of American troops. Lyndon Johnson knew years earlier that he should have gotten out of Vietnam, but stayed on. And, yes, George W. Bush stayed on in Afghanistan and Iraq after achieving the initial goal of responding to 9/11 and then of getting rid of Saddam Hussein. War is not about nation-building.

Jim Geraghty’s laugh-to-keep-from-crying send-up of the federal bureaucracy.
Soaring levels of government waste, fraud, and abuse leave many of us wondering whether we live in an alternate reality. We shake our heads in despair and wonder when the absurdity will stop. Jim Geraghty goes one step further and, in his just-released “mock history” — The Weed Agency: A Comic Tale of Federal Bureaucracy Without Limits — embraces the madness for madcap effect. He sat down to discuss the book — is it fact or fiction? — with National Review Online’s Kathryn Jean Lopez.

Kathryn Jean Lopez: Admit it: You’re hoping the state of Colorado jumps to conclusions and makes your book a bestseller based on the title.

Jim Geraghty: If confused stoners drive The Weed Agency to the bestseller list, I won’t complain. I should probably start claiming that the book was printed on rolling paper. They’re probably the demographic most likely to forget to return it and ask for a refund.

Lopez: You write, “Everyone who comes to Washington intending to cut the government comes with some other goal as well — defense, abortion, schools, whatever. And everyone who likes the government the way it is has gotten very, very skilled at figuring out how to get us to focus on the other stuff.” Is it really all that bad?

Geraghty: I’m not sure if it’s bad so much as it’s reality. Sometimes that other stuff is really important — Ronald Reagan came to Washington aiming to win the Cold War as well as reduce the cost and size of government; 9/11 obviously completely overwrote the original agenda of George W. Bush’s presidency. As presidencies and congressional careers progress, some priorities inevitably squeeze out other priorities. Cutting spending has one of the worst effort-to-reward ratios in governing. You don’t get to name federal facilities after yourself, you don’t get ribbon-cutting ceremonies and boasts of jobs created. You don’t get to brag in campaign ads that you created a program to solve some problem. You don’t create a constituency that wants to see that spending continue and get you reelected in order to ensure that that spending continues. You put yourself at risk of attack ads declaring you cut something that’s popular and beloved. So the natural incentive for lawmakers, even conservative ones, is to focus on other issues and topics where there is better return on the investment of time and effort.

Is Obama capable of touching anything without converting it into fertilizer?

Hot on the heels of the White House’s reckless outing of the CIA’s chief spy in Kabul — which itself was a mere station break in the ongoing VA medical-abuse scandal — Obama waded into the world of America’s sole POW in Afghanistan. Obama swapped Army sergeant Bowe Bergdahl for five Guantanamo detainees. Bergdahl is now undergoing medical examinations in Landstuhl, Germany, and these Taliban leaders have left tropical detention for new lives in Qatar. Not to worry: Qatar agreed to assure that they do not leave that Middle Eastern nation — for one year.

Ruining yet another weekend, and weakening America even further in the process, Obama managed to accomplish several new milestones with this one action.

First, America’s long-standing policy of never negotiating with terrorists is now fully ablaze. As strategic reversals go, this was a five-alarm fire.

Free-market economists like to say: Incentives matter. While kidnapping Americans previously bought terrorists nothing from the U.S. government, Obama’s message to the jihadists is: “Go ahead. Kidnap more Americans.” Terrorists now know that a wobbly-kneed America will negotiate with them.

“All praise is to Allah Almighty!” Taliban supreme leader Mullah Omar said in a statement Monday on its official website. “This huge and vivid triumph requires from all Mujahidin to offer thanks to the Benevolent Creator who accepted the sincere sacrifices of our Mujahid nation and managed the release of these five renowned Mujahidin from the enemy’s clutch.” Omar added: “May Allah Almighty get, just like these five heads, all those oppressed prisoners released who are incarcerated in the path of liberating their country and serving their creed.”

Even worse, Obama fixed the jihadist–American foreign-exchange rate, not at one to one but at five to one. Islamofascist thugs now know that the price tag for an American’s safe return is at least five of their comrades.

‘Unique and Exigent Circumstances’

Although the Framers didn’t get around to the executive branch until Article II — the real business of government, they thought, would normally be carried out by Congress — the Constitution nevertheless vests awesome, but not unlimited, power in what James Madison called the “chief Magistrate,” the president of the United States. This is right and proper, for the president, as commander-in-chief, needs the flexibility to be able to respond quickly and decisively in case of national emergency.

Appealing to that necessity is what stands behind the Obama administration’s objection to the federal law requiring that the president give Congress 30 days notice [1] before releasing prisoners from Guantanamo Bay. There were, the administration argued, “unique and exigent circumstances” why that law should not be followed in the case of Bowe Robert Bergdahl, the Army solider who is reported to have deserted [2] his post while on guard duty in June 2009 after announcing his loathing [3] for America and hatred of the Army. “I am ashamed to be an American,” he wrote in an email to his parents. “And the title of US soldier is just the lie of fools. . . . The horror that is America is disgusting.”

It would be interesting to have Sgt. Bergdahl’s views on “the horror that is America” now that he has had an opportunity to spend five years as the guest of the Taliban in Afghanistan. It would also be interesting to know exactly what “unique and exigent circumstances” prompted the Obama administration to exchange Sgt. Bergdahl for five high-level Taliban terrorists — the hardest of the hard core, as John McCain put it — who were cooling their heels in Gitmo. (What do you suppose these thugs and murderers will do now that they’re free? Go sight-seeing?)

At least six U.S. servicemen were killed searching for Sgt. Bergdahl. And Rep. Howard McKeon and Sen. James Inhofe are surely correct that the exchange imperils the lives of others. “Our terrorist adversaries now have a strong incentive to capture Americans,” they said in a joint statement. “That incentive will put our forces in Afghanistan and around the world at even greater risk.”

Today’s liberalism is about as liberal as the Hellenistic world was Hellenic — a glossy veneer over a rotten core.

In the old days, liberalism was about the means to an end, not the end itself. Since the days of Socrates, liberalism enshrined free inquiry, guided by inductive thinking and empirical use of data. Its enemies were not necessary organized religion — some of the Church fathers sought to find their salvation through the means of neo-Platonic cosmology and Aristotelian logic — or government or traditional custom and practice, but rather deductive thinking anywhere it was found.

Yet today liberalism itself is deductive. It has descended into a constructed end that requires any means necessary to achieve it. Take any hot-button liberal issue: censorship, abortion, global warming, affirmative action, or illegal immigration. Note the liberal reaction.

I don’t like most of the assigned readings that now pass for the university’s seminal texts of the liberal arts. But on the other hand, I don’t believe in triggers to warn students of what is inside a book. Otherwise, I might insist that universities put a warning on Rigoberta Menchú’s or Barack Obama’s autobiographies: “Trigger Warning: these are fictive accounts that rely on occasional invention and adaption and so do not, as the authors have claimed, reflect actual events.” Nor would I want a written trigger for the book flap of Doris Kearns Goodwin’s Team of Rivals, along the following lines: “Trigger Warning: Ms. Goodwin has admitted past plagiarism in her works, a fact that may be necessary to weigh when evaluating her present history.” Readers can determine for themselves to what degree past confessions of plagiarism should guide their own studies.

Nor do I favor yanking Bill Maher off television — in Paula Deen or Duck Dynasty [1] fashion — for his serial profane and misogynist attacks on Sarah Palin and other conservative women. Nor do I want a running Trigger Warning on the bottom of the screen, as Maher talks: “Trigger Warning: We do not endorse Mr. Maher’s sometime misogynistic and reactionary use of slurs against prominent women with whom he disagrees.”