RUTHFULLY YOURS

A few hours before announcing his new immigration policy, President Obama received an opinion blessing its legality from the Office of Legal Counsel. Regrettably, the OLC’s made-to-order legal analysis is shockingly flawed in five major respects.

First, the OLC justified the policy as a prioritization of government’s “limited resources.” But the executive order does more than prioritize. It rewrites existing law. Illegal immigrants won’t be deported if they aren’t a threat to national security, public safety or border security. Beyond these three categories, deportation may be pursued only if it serves an “important federal interest.”

Under current law, by contrast, anyone entering the U.S. illegally is a “deportable alien” who “shall, upon the order of the Attorney General, be removed.” The president’s policy transforms an entire category of aliens deemed deportable into two different categories, whereby some are deportable and some aren’t. This is a shift in kind, not merely degree.

A president prioritizing resources would do what previous presidents have done: enforce the entirety of immigration law, while allowing prosecutors to make case-by-case determinations. By announcing a global policy of nonenforcement against certain categories, Mr. Obama condones unlawful behavior, weakening the law’s deterrent impact, and allows lawbreakers to remain without fear of deportation. As he puts it, “All we’re saying is we are not going to deport you.” These individuals are no longer deportable, although Congress has declared them so.

Second, the OLC incorrectly concludes that the president’s plan involves case-by-case scrutiny. The OLC admits “a general policy of nonenforcement that forecloses the exercise of case-by-case discretion poses ‘special risks’ that the agency has exceeded the bounds of its enforcement discretion.” It argues, however, that there are no “removable aliens whose removal may not be pursued under any circumstances.” And although the policy “limits the discretion of immigration officials . . . it does not eliminate that discretion entirely.”

About the best that can be said about Monday’s agreement to extend the Iran nuclear negotiations for another seven months is that it’s better than the bad deal that so many in the West seem eager to embrace. Meanwhile, the U.S. and its European partners are giving Tehran more time and money to get closer to the nuclear threshold.

The talks have already been going for nearly a year and were formally extended once in July. Speaking in Vienna on Monday, Secretary of State John Kerry said “new ideas surfaced” in recent days to justify the extension. If a breakthrough is so close, then why seven more months?

The answer is that the mullahs still aren’t budging on the decisive questions, but the Administration can’t bring itself to admit failure and face up to the consequences of having to impose tighter sanctions or perhaps take military action. President Obama and his advisers would rather give themselves another few months in hopes they can come up with new concessions that Supreme Leader Ali Khamenei might finally accept.

Mr. Obama told ABC’s “This Week” on Sunday that no one should worry in any case because the interim deal “has definitely stopped Iran’s nuclear program from advancing” during the negotiations. Mr. Kerry was even more emphatic, insisting that “the interim agreement wasn’t violated. Iran has held up its end of the bargain. And the sanctions regime has remained intact.”

The Defense chief takes the fall for the failures at the White House.

Chuck Hagel wasn’t our favorite to run the Pentagon, but it speaks volumes about this Administration’s national security decision-making that even he turned out to be too independent for the job. The former Republican Senator and infantry soldier chose to resign on Monday rather than endure more White House micromanagement.

As the first Administration official to depart since the election, Mr. Hagel looks like a ritual sacrifice, and not the right one. If President Obama really wanted a fresh start in his last two years, he’d begin by sacking most of his White House national security team. They’re the tenderfoot Talleyrands who have presided over the radiating calamity in Syria, the collapse of the Iraqi military, the rise of Islamic State, and the failure to deter or stop Vladimir Putin ’s march into Ukraine.

Why does national security adviser Susan Rice still have a job? Or spinner-in-chief Ben Rhodes ? Mr. Hagel was hired in part because Mr. Obama believed he would take orders from these visionaries. But as the world turned darker, the Pentagon chief began to represent the views of the generals who are increasingly worried about U.S. security.

His worst sin appears to have been sending a memo in October pointing out that the President had to clarify his Syria policy for his campaign against Islamic State to succeed. Mr. Hagel was reflecting the views of senior Pentagon brass.

Mr. Hagel has since been vindicated as the U.S. has watched while Bashar Assad ’s government tries to wipe out the Free Syrian Army rebels we are training to be our allies, and Turkey keeps a distance from the coalition because we won’t help to oust Assad. But telling the truth in this Administration gets you a scolding from Vice President Valerie Jarrett, and on Tuesday White House leakers were saying Mr. Hagel wasn’t creative enough in providing security options. The options this White House seems to want are those that provide the appearance of solving problems without having to solve them.

CLAYTON, Mo.— A grand jury declined to indict a white police officer in the shooting of an unarmed black teenager whose death in the St. Louis suburb of Ferguson became a national flash point on race, justice and policing.

The decision released on Monday night led to renewed unrest after the region faced weeks of protest that turned violent at times this summer. Police within hours of the decision were using smoke canisters, tear gas and non-lethal shotgun rounds to disperse crowds in Ferguson as they reported incidents of looting and buildings being set on fire.

Missouri Gov. Jay Nixon had activated the National Guard ahead of the decision and early Tuesday, he ordered that additional troops be deployed to the city. The number of additional troops wasn’t provided.

The grand jury was charged with determining whether a crime occurred when Ferguson police officer Darren Wilson shot 18-year-old Michael Brown in August after an altercation between the two. St. Louis County Prosecuting Attorney Robert McCulloch said the 12-member panel didn’t find probable cause for five possible charges that ranged from first-degree murder to involuntary manslaughter, after hearing more than 70 hours of testimony from about 60 witnesses.

St. Louis County Prosecuting Attorney Robert McCulloch discusses some of the witness testimony in the grand jury findings in the Ferguson, Mo., case involving the shooting of a black teenager. Photo: AP.

“All decisions in the criminal-justice system must be determined by the physical and scientific evidence, and the credible testimony corroborated by that evidence. Not in response to public outcry or for political expediency,” Mr. McCulloch said.

The shooting of Mr. Brown in August gained national attention as protests spread to other cities and President Barack Obama and Congress weighed in. On Monday night, Mr. Obama urged calm. “We need to recognize that the situation in Ferguson speaks to broader challenges that we still face as a nation,” Mr. Obama said.

About the Author: Louis René Beres (Ph.D., Princeton, 1971) is professor of political science and international law at Purdue University and the author of many books and articles dealing with international relations and strategic studies.
Editor’s Note: A somewhat longer version of the following article first appeared in The Jewish Press more than 25 years ago. Not only is it remarkably prescient, it is as relevant now as it was then. It is especially important at this particular moment, when 105 retired and reservist senior IDF officers have signed a letter calling publicly on Prime Minister Netanyahu to “lead” in negotiating for a Palestinian state.

February 1989
A pair of prominent Israeli commentators recently pointed out that continued control of the territories would have grave consequences for Israel’s security. In this connection, Yehoshafat Harkabi, a former chief of military intelligence, argues in his newest book,Israel’s Fateful Hour, that a refusal to end “occupation” of the West Bank and Gaza will produce escalating terrorism and further incentives for war by neighboring Arab states. Abba Eban, foreign minister of Israel from 1966 to 1974, insists in a January 2, 1989 editorial inThe New York Times(“Israel, Hardly the Monaco of the Middle East”), that Israel would have nothing to fear from an independent “Palestine.” Such a state, he claimed, “would be the weakest military entity on earth.”

In these assessments, Harkabi is certainly correct, but nowhere does he compare the risks to Israel of an ongoing “occupation” with those of a Palestinian state. If he had offered such a comparison, perhaps he would have understood that continuing Israeli administrative control of Judea/Samaria/Gaza would certainly have its risks, but that a bordering state of Palestine would be far worse. As for Mr. Eban, he is wrong altogether.

If there were to be an Arab-ruled state in Judea/Samaria/Gaza, its particular danger to Israel would lie less in its own army than in the assorted insurgents that would soon shelter themselves in “Palestine.” To suggest that the principal risks to Israel could be ascertained by simply comparing the Israeli army to the far more modest forces of this 23rd Arab statewould assume an incorrectly static condition in the new enemy country, one that would offer only the “best case” scenario for Israel.

These suggestions are hardly in Jerusalem’s best interests. Israel is not “the Monaco of the Middle East,” but neither would Palestine be as benign a mini-state as Abba Eban suggests. Before Israel can reasonably conclude that the so-called occupation is intolerable, its leaders will first have to determine whether it is actually less tolerable than Palestinian statehood. If it isn’t less tolerable, then rationality would require continuing administrative control, however painful, costly, and unfortunate. And such rationality would not even take into account the overwhelmingly all-important fact that Judea and Samaria are inherent parts of the Jewish state under authoritatively binding international law

Hagel: Off the rez and on the skids

The speculation about why Chuck Hagel is out as secretary of defense has been ably documented in all the usual places. (He will remain in his post until there’s a new SECDEF.)

The NYT story – as usual, faithfully relaying Obama administration themes – says unexpansively that “the threat from the militant group Islamic State will require different skills from those that Mr. Hagel…was brought in to employ.” The implication is that Hagel is not an active and articulate enough secretary for this multifaceted military problem.

This rings false to me, however, because it is abundantly clear that the Obama White House itself has no intention of being active and articulate about the ISIS threat.

I just heard Ed Henry, Fox’s White House correspondent, reporting something closer to my take, which is that Hagel has never been included in Obama’s inner policy circle, and his own sense of futility in the job was probably as much a factor as dissatisfaction with him in the Oval Office. The Washington Post’s David Ignatius reported nearly three weeks ago that “administration officials” were speculating on a near-term departure by Hagel. Statements (including Obama’s) that Hagel and the White House were in discussions over his resignation from early November accord with that report.

Hagel’s frustrations were expressed in an interview with Charlie Rose last week, from which PJM’s Bryan Preston has reproduced this excerpt:

Rose asked Hagel to elaborate on comments that he made in a speech at the Reagan Library last weekend. In that speech, Hagel said that America’s military capability, while still the best in the world, is being threatened.

The Obama administration will never abandon its courtship of Iran.

On the eve of the extended deadline in the US-led six-party talks with Iran regarding Teheran’s illicit nuclear weapons program, the one thing that is absolutely clear is that courting Iran is the centerpiece of US President Barack Obama’s Middle East policy. Come what may in Geneva, this will not change.

To be clear, Obama does not seek to check Iran’s rise to regional hegemony by appeasing it. None of the actions he has taken to date with regard to Iran can be construed as efforts to check or contain Iran.

Their goal is to cultivate a US alliance with Iran. As Obama sees things, Iran for him is what China was for then US president Richard Nixon. Nixon didn’t normalize US relations with the People’s Republic of China in order to harm the Chinese Communists. And Obama isn’t wooing Iran’s Islamic revolutionaries in order to harm them.

Unfortunately for the world, China is not a relevant analogy for Iran. Nixon sought to develop ties with Beijing because he wanted to pry the Chinese out of the Soviet orbit. Courting China meant harming Moscow, and Moscow was the US’s greatest foe.

There is no Moscow that will be weakened by the US’s empowerment of Tehran. The only parties directly and immediately harmed by Obama’s policy of courting Iran are America’s allies in the Middle East.

The Allies’ appeasement deal with the Nazis in 1938 had three victims: Czechoslovakia, the rest of Europe, and the rest of the world.

Obama’s policy of courting Iran also has three victims: Israel, the Sunni Arab states, and the rest of the world.

A number of commentators have argued tonight, with no challenge by their media interviewers, that even if the evidence was insufficient to indict Officer Darren Wilson, justice would have been better served if the grand jury had indicted anyway. That way, the reasoning goes, we could have had a public trial in the light of day where everyone could have seen that the case was insufficient. That, we are to believe, would have made it easier for the community to accept the result.

The interests of the community, however, are not the only ones in the equation, much less the most important ones. What about the interests of the suspect? Those are the interests the Constitution addresses.

The Fifth Amendment states: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.”

The Constitution does not consider the grand jury to be a rubber stamp. It is a core protection. It stands as the buffer between the government prosecutor and the citizen-suspect; it safeguards Americans, who are presumed innocent, from being subjected to the anxiety, infamy and expense of a trial unless there is probable cause to believe they have committed a serious offense.

And put aside the constitutional argument. Rabble-rousers want Wilson indicted, despite the lack of probable-cause evidence, on the theory that it would be more just to have a public trial in a case where a man has lost his life. But why would it not be equally justifiable to argue that, because a man has lost his life, the ultimate trial jury should also ignore the law and convict, despite an even more stark lack of murder evidence beyond a reasonable doubt? At what point do we stop enabling the grievance industry to override our core constitutional protections?

If we are going to uphold our Constitution, it does not matter that thoughtful commentators suppose a public trial would best serve the community. The Fifth Amendment holds that a person has the right not to be subjected to a public trial – i.e., the right not to be indicted — unless the state can prove to a grand jury that there is probable cause to believe he committed a crime.

Officer Wilson had a constitutional right not to be indicted in the absence of sufficient evidence. That right to individual liberty outweighs the media’s abstract claim that a public trial would serve the public interest.

There was not probable cause to indict Officer Darren Wilson in the killing of Michael Brown this summer in Ferguson, Mo., a grand jury decided, according to county prosecutor Robert McCulloch. The grand jury was asked to consider five possible counts, from first-degree murder to involuntary homicide, but in all cases, they decided not to indict him. A federal investigation of the incident continues, and Brown’s family still has the chance to file a civil suit, where the level of evidence required is lower.

In a lengthy statement tonight, McCulloch complimented the “unprecedented cooperation between the local and federal authorities,” and noted that all the evidence gathered by respective agencies has been shared with each other. McCulloch also criticized the media’s treatment of the case, saying that “the most significant challenge in this investigation has been the 24-hours news cycle,” which “helped raise suspicion” among citizens who already distrust the criminal-justice system.

McCulloch detailed the events of the day of the killing: Officer Wilson, he said, encountered Michael Brown while responding to a 911 call regarding Brown’s theft of cigarillos from a convenience store, and their confrontation, including the first shots fired, occurred inside of Wilson’s vehicle. In sum, he noted, the grand jury examined the three autopsies performed of Brown’s body (by local authorities, federal authorities, and a Brown-family-hired examiner), examined evidence for 25 days over three months, listened to 70 hours of testimony and hours more of recordings, and then deliberated over two days.

The prosecutor repeatedly criticized the trustworthiness of some of the witnesses who had claimed to see the shooting and had gone public with accounts that seemed to suggest Wilson had shot Brown while he was fleeing the scene or had instigated the physical confrontation. Those witnesses were contradicted by many witnesses who hadn’t related their testimony publicly, McCulloch said, and public witnesses were often recanted in front of the grand jury or other authorities. “Some even admitted that they had not witnessed the event at all but had merely repeated what they’d heard” from other witnesses or acquaintances in the neighborhood, McCulloch said.

There is no shortage of half-the-story reporting from the mainstream media as journalists seek to frame our understanding of the grand jury’s imminent decision about whether to file an indictment in Ferguson. One theme being pounded in the last few days is that prosecutors are failing to “direct” the grand jury toward an indictment of Officer Darren Wilson in the shooting death of 18-year-old Michael Brown.

That is, after obligatory repetition of the bromide that a prosecutor can get a grand jury to indict a ham sandwich, it is explained that the prosecutors in Ferguson are not treating this grand jury as a puppet at the end of their strings. Instead, prosecutors are laying out all the evidence in detail, instructing the grand jurors on the relevant statutes that define potential offenses (e.g., intentional murder, manslaughter, etc.), and letting them decide for themselves rather than advocating for an indictment. This is said to demonstrate bias in the system because prosecutors typically ask for an indictment and push the jurors toward that result.

To the contrary, if there is bias in the system, it is almost certainly against Officer Wilson. In most cases where prosecutors decide not to charge a crime, they do not present the case to the grand jury in the first place. Moreover, the prosecutorial discretion not to seek an indictment is informed by the standard of proof that applies at trial.

At the indictment stage, the standard is mere “probable cause”; at trial, the standard is much tougher for the state – “proof beyond a reasonable doubt.” It is perfectly proper to indict someone if you believe there is a good reason to suspect he committed the crime, even if you weren’t overwhelmed by the prosecutor’s presentation and wouldn’t be surprised if the state lost the case at trial. After all, the indictment doesn’t convict anyone; it simply means the case will be tried to a jury. By contrast, at that trial, the prosecutor’s “beyond a reasonable doubt” burden is much tougher; the accused has counsel and heightened due process rights not available to him at the grand jury stage; and the jury must be unanimous to convict (a grand jury need only have a super-majority – in Ferguson, it is a vote of nine out of twelve grand jurors; in federal court, it is 16 of the 23 grand jurors).

There are many cases in which it is possible to establish probable cause but where it would be highly unlikely to prove the case beyond a reasonable doubt. In normal cases, prosecutors do not waste their time indicting cases that technically satisfy the probable-cause standard if they know the chance of conviction at trial is slim to none.