The critics should look no further than the U.S. to see what consequences can ensue.

By DAVID B. RIVKIN JR. And KARL R. MOOR

While the Israeli political scene is no stranger to strident criticisms directed at senior government officials and their policies, the recent attacks on Prime Minister Benjamin Netanyahu and Defense Minister Ehud Barak over their policies toward Iran are a dangerous luxury.

Numerous retired security officials who do not lack a private voice or influence within a small nation. including former Shin Bet head, Yuval Diskin, ex- Mossad chief, Meir Dagan, and Former IDF Chief of General Staff Gabi Ashkenazi, have launched broadsides against the current Israeli government’s dire assessments of the Iranian threat and the best ways of dealing with it.

They were followed by a more subdued critique, proffered by the IDF’s current Chief of General Staff Benny Gantz, who opined that the Iranian threat was not all that imminent and the Iranian regime, warts and all, was a rational strategic actor. These criticisms were reinforced by more openly political attacks, which came from Labor Chairwoman Shelly Yacimovich and Former Prime Minister Ehud Olmert.

Despite some differences in style and substance, the basic arguments of all these naysayers are that Messrs. Netanyahu and Barak have greatly exaggerated the extent of the threat posed by the Iranian nuclear weapons program, downplayed the efficacy of the global diplomatic and economic pressure on Tehran and overestimated the extent to which an Israeli military strike is a viable strategic option. While the precise modalities of these Israeli contretemps over the Iranian policy are unusual, they are not unprecedented.

Heated debates about issues of war and peace are endemic to all societies, and in democratic societies they are played out in the halls of government and in public. For example, during the George W. Bush Administration, senior CIA officials seemed to be at war with their political masters, leaking rosy assessments of the Iranian nuclear program in ways designed to foreclose any prospects of the U.S. launching a pre-emptive strike against Iran. Meanwhile, a few retired generals, dissatisfied with the Iraq war, attacked then-U.S. Secretary of Defense Donald Rumsfeld.

But these types of intramural disputes are never cost-free. The consequences of the attacks on Netanyahu’s and Barak’s handling of the Iranian issue are serious. That they make it more difficult for the current Israeli government to mount military strikes against Tehran’s nuclear installations is, of course, the most obvious result and the one clearly desired by the critics.

What the critics are missing is that other consequences ensue, too. Tehran is encouraged to press forward with its nuclear efforts. Pressure on Iran is likely to slacken off, since the international diplomatic pressure and sanctions against Tehran have been motivated as much – if not more – by the fear of an Israeli strike as by the concern for Iranian acquisition of nuclear weapons.

The impact is particularly pronounced in the case of North America, since U.S. President Barack Obama’s recent more robust sanctions policy is driven largely by a desperate desire to win his re-election bid; an endeavor that would be fatally compromised by the economic turmoil caused by an outbreak of any hostilities in the Middle East between now and November. All of this, of course, emboldens the mullahs even more.

These substantive problems aside, loyal Israeli dissenters are missing an even more important point. Israel is not an ordinary country. Its leaders and citizens alike maintain that Israel must meet the highest of ethical standards, even when dealing with existentialist threats that often entail moral dilemmas. It is also a beleaguered nation that has been living under siege throughout its entire existence.

For the first time in its history, Israel is dealing with a strategic threat that it may be unable to tackle entirely on its own. And, unlike the U.S., Israel has no margin for error and its statecraft has to punch above its weight. In this crucial moment in Israel’s existence, message discipline about the Iranian nuclear threat is in order. The unfolding public debate on Iran does not come close to meeting this standard.

David B. Rivkin, Jr. and Karl R. Moor are American lawyers who frequently write about national security and legal issues. Rivkin served in the White House and the Departments of Justice and Energy under Presidents Reagan and George H.W. Bush and is a senior advisor to the Foundation for the Defense of Democracies.

Source: http://www.haaretz.com/opinion/criticizing-netanyahu-barak-on-iran-is-a-luxury-israel-can-t-afford-1.430449

(Published in The Washington Post, April 27, 2012)

The United States has just lost a key ally in the fight against al-Qaeda terrorists: the residents of Virginia, and state employees in particular.

Virginia’s legislature recently passed a bill that forbids state employees, including police and members of the National Guard, from participating in the investigation, surveillance, detention or arrest of any suspected member of al-Qaeda or its affiliates, if that suspect is a U.S. citizen.

The bill, which Gov. Robert F. McDonnell (R) signed Wednesday, is unconstitutional. It trenches on the federal government’s war powers and violates conditions under which Virginia and other states have received billions of dollars of federal funding. It has dangerous symbolic and practical consequences and undermines the cooperation necessary to disrupt and defeat al-Qaeda plots on our shores.

The basis of this legislation in Virginia and 11 other states (Arizona, Kansas, Maine, Maryland, Missouri, Oklahoma, Rhode Island, Tennessee, Utah, Washington and West Virginia) is a gross misunderstanding or intentional misreading of the detainee provisions in the 2011 National Defense Authorization Act (NDAA).

Some members of the tea party and the Tenth Amendment Center, a conservative group devoted to states’ rights, have joined with the American Civil Liberties Union to monger fear over federal detention authority. Under their contorted reading of the act, federal law requires all U.S. citizens suspected of terrorism to be held in military custody and strips them of all constitutional rights.

But although the NDAA describes military custody as the primary policy option for dealing with captured enemy combatants, the president retains, as is constitutionally proper, discretion to utilize the civilian justice and penal systems. In fact, the NDAA did not change settled law at all. It says that “nothing in this section shall be construed to affect existing law” related to the detention of U.S. citizens captured or arrested in the United States. Furthermore, under the Supreme Court’s post-Sept. 11 rulings, especially Hamdi v. Rumsfeld andBoumediene v. Bush , enemy combatants (regardless of citizenship) may be held for the duration of the hostilities, but anyone in military custody, whether in the United States or Guantanamo, is able to exercise habeas corpus rights to challenge the detention.

Despite these facts, some continue to fight what they see as a federal leviathan that acts extra-constitutionally all the time. But the federal government has the primary role in national security. Although comprehensive detention legislation has proved elusive, the language in the NDAA reflects the considered and constitutionally binding judgment of Congress and the president on an issue over which the federal government properly holds sway.

Since Sept. 11, 2001, al-Qaeda and its affiliates have recruited terrorists in the United States. Under the law of armed conflict — which predates the 2001 attacks — enemy combatants, regardless of citizenship, may be detained for the duration of the hostilities.

Virginia’s new law sends mixed messages to state employees, especially law enforcement officials. Imagine a state trooper pulling over a speeder and finding out through an ID check that the FBI has an alert for the driver as a suspected al-Qaeda operative. What should the trooper do if he knows or suspects the driver is a U.S. citizen? Do his duty and detain the suspect, which violates Virginia law? Or simply write the speeding ticket and send the driver on his way, not telling the FBI or the military, consequences be damned?

Although the federal government has no inherent constitutional right to compel state officials to help in combating al-Qaeda, since 9/11 it has funneled billions of dollars to all states that require fulsome cooperation from state law enforcement authorities. Meanwhile, state National Guard forces, when deployed overseas, are subject to federal control. For these reasons, Virginia’s legislation violates the federal law.

Beyond these practical concerns, Virginia’s legislation, especially if followed by more states, sends a powerful message that delegitimizes not just the military detention of captured enemy combatants but also the entire laws-of-war architecture. Legitimacy of government policies matters a great deal in our democracy. Unfortunately, it already was heavily battered, primarily by the left, during the George W. Bush administration.

The tea party members who are pushing for these state actions may not know that the Obama administration has, after some initial equivocation, endorsed the laws-of-war paradigm and has retained most of the Bush administration’s policies. This extremely positive development provides much-needed bipartisanship in this key area of national policy.

The Virginia legislation, and similar legislation in other states, violate the U.S. Constitution. It has nothing to do with states’ rights. It is a dangerous mistake, perpetrated by groups and people who misunderstand detainee law, including the NDAA, or who, since Sept. 11, have viscerally opposed the laws-of-war paradigm. Whatever their motivations, they are wrong, and their efforts should be strongly opposed.

Virginia’s new law sends mixed messages to state employees, especially law enforcement officials. Imagine a state trooper pulling over a speeder and finding out through an ID check that the FBI has an alert for the driver as a suspected al-Qaeda operative. What should the trooper do if he knows or suspects the driver is a U.S. citizen? Do his duty and detain the suspect, which violates Virginia law? Or simply write the speeding ticket and send the driver on his way, not telling the FBI or the military, consequences be damned?

Although the federal government has no inherent constitutional right to compel state officials to help in combating al-Qaeda, since 9/11 it has funneled billions of dollars to all states that require fulsome cooperation from state law enforcement authorities. Meanwhile, state National Guard forces, when deployed overseas, are subject to federal control. For these reasons, Virginia’s legislation violates the federal law.

Beyond these practical concerns, Virginia’s legislation, especially if followed by more states, sends a powerful message that delegitimizes not just the military detention of captured enemy combatants but also the entire laws-of-war architecture. Legitimacy of government policies matters a great deal in our democracy. Unfortunately, it already was heavily battered, primarily by the left, during the George W. Bush administration.

The tea party members who are pushing for these state actions may not know that the Obama administration has, after some initial equivocation, endorsed the laws-of-war paradigm and has retained most of the Bush administration’s policies. This extremely positive development provides much-needed bipartisanship in this key area of national policy.

The Virginia legislation, and similar legislation in other states, violate the U.S. Constitution. It has nothing to do with states’ rights. It is a dangerous mistake, perpetrated by groups and people who misunderstand detainee law, including the NDAA, or who, since Sept. 11, have viscerally opposed the laws-of-war paradigm. Whatever their motivations, they are wrong, and their efforts should be strongly opposed.

David B. Rivkin Jr. is co-chairman of the Center for Law and Counterterrorism at the Foundation for Defense of Democracies and a partner at Baker Hostetler. He served in the Justice Department during the Reagan and George H.W. Bush administrations and has represented the 26 states that have challenged the constitutionality of the 2010 Affordable Care Act. Charles D. Stimson, senior legal fellow at the Heritage Foundation, was a deputy assistant secretary for detainee affairs at the Defense Department during the George W. Bush administration.

Source: http://www.washingtonpost.com/opinions/virginia-detainee-law-is-dangerously-unconstitutional/2012/04/26/gIQANb8zjT_story.html

If the Supreme Court upholds purchase mandates in health care, they will become a mainstay of federal regulation throughout the U.S. economy.

By DAVID B. RIVKIN JR. And LEE A. CASEY

Since the Supreme Court’s historic three-day ObamaCare hearings in late March, the president and his supporters have tried to pressure the Justices into upholding that law, asserting that any other decision would overstep the court’s constitutional bounds. Ruling against ObamaCare would not be what the president called illegitimate “judicial activism,” but an appropriate exercise of the Supreme Court’s core constitutional role.

“Judicial activism” is one of those agreeably ambiguous terms that can support almost any criticism of the courts. Under our constitutional system, judicial activism entails judges rewriting rather than interpreting the laws, exercising “will instead of judgment,” in Alexander Hamilton’s phrase.

Measuring a federal statute like ObamaCare against the Constitution and finding it wanting is not judicial activism. This, as Chief Justice John Marshall noted in the early (1803) and much-quoted Marbury v. Madison case, “is of the very essence of judicial duty.”

This duty is not properly limited, as ObamaCare’s increasingly desperate supporters claim, to judicial enforcement of the Bill of Rights and other affirmative prohibitions on congressional power. The Constitution must be interpreted and applied as a whole, and its basic architecture—in particular the limitations inherent in the enumerated nature of Congress’s powers—is just as critical to the defense of individual liberty as are any of the other rights it guarantees.

The Framers assumed that the Constitution’s federalist architecture, dividing power between the federal government and the states (creating a “vertical” separation of powers to complement the “horizontal” separation among the three federal branches), would be the primary defense against governmental overreaching. Indeed, Hamilton argued in the Federalist Papers (No. 84) that adoption of a Bill of Rights “would even be dangerous” for the very reason that “[t]hey would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted.”

Accordingly, the Supreme Court always has measured federal statutes against both the Bill of Rights and the Constitution’s structural protections. It has struck down laws found wanting in either case.

To uphold ObamaCare’s insurance-purchase mandate as a legitimate exercise of Congress’s power to regulate interstate commerce, the court must find some neutral, judicially enforceable limiting principle that would maintain the Constitution’s balance of power between federal and state authority. That principle must keep the power to regulate interstate commerce from morphing into a general power simply to regulate the citizenry. The court has always ruled, correctly, that only the states have such a general “police” power under our Constitution.

No such limiting principle has yet been suggested because none exists. The best government lawyers have done is to claim that Congress imposed the insurance mandate as a means of regulating how people (especially the young and healthy) will pay for the health care they will someday use. That Congress would regulate Americans as future market participants and, having chosen insurance as the regulatory mechanism, it can require everyone to buy that insurance now. This is how insurance works—it must be obtained before the covered eventuality occurs.

But there is nothing magical about “insurance”—for health care or otherwise. If Congress can regulate Americans as future consumers (and everyone is a future consumer in dozens if not hundreds of markets), then it could equally impose any number of mandates on the citizenry today as a means of regulating the transactions in which they are expected to engage tomorrow, next week, or in 40 years.

Such mandates could require prepayment now for commodities or services to be consumed in the future, thereby benefiting today’s markets and consumers by injecting additional liquidity and perhaps decreasing their costs. Indeed, Congress could impose even more blatant cross-subsidizing mandates, as it did in ObamaCare, where health-insurance premiums paid by young members of the middle class are expected to defray the costs of health care being consumed by the less affluent.

If upheld, such purchase mandates would become a mainstay of federal regulation, offering Congress an easy way to cure the ill effects of constitutionally proper but economically dysfunctional schemes. With ObamaCare, Congress sought to offset ruinously expensive new insurance industry regulations, which barred normal underwriting considerations, such as a customer’s pre-existing conditions, by forcing all Americans to become insurance customers.

An identical approach would permit imposition of a similarly ruinous (but constitutional) “green” car sales requirement on automobile manufacturers, supported by a new (and equally unconstitutional) mandate that all Americans buy a new, “green” car at periodic intervals or pay a penalty. And so it goes.

There is virtually no economically unrealistic regulation—that forces companies to produce goods nobody wants to buy, or sets artificial prices—that could not be salvaged at least in the short run by an offsetting purchase mandate of some kind. Yet in the long run the resort to central planning, effected through such mandates, would fare no better in the U.S. than it did in the Soviet Union.

Although the policy merits of various mandates could be honestly debated, there simply is no neutral, judicially enforceable basis on which courts can determine which prepayment mandates Congress can impose as a means of regulating future transactions and which it cannot. In fact, if the courts were to scrutinize such mandates, as ObamaCare defenders suggest, striking down those they considered to be too onerous or preposterous (such as a “broccoli mandate”) the judges truly would be engaged in illegitimate judicial activism.

As the Supreme Court has consistently ruled in the past, the Constitution gives Congress only limited and enumerated powers. However vexing a particular problem may be, Congress can address it using only those powers. If its preferred solution requires the exercise of a power it was denied, such as a general police power, then Congress must think again. If, as in this case, Congress persists in adopting legislation that goes beyond its constitutional authority, the courts must invalidate it. That is not judicial activism. It is the fulfillment of the judiciary’s constitutional duty.

Messrs. Rivkin and Casey are lawyers who served in the Justice Department during the Reagan and George H.W. Bush administrations. They represented the 26 states in their challenge to ObamaCare before the trial and appellate courts.

A version of this article appeared April 24, 2012, on page A15 in some U.S. editions of The Wall Street Journal, with the headline: Overturning ObamaCare Isn’t ‘Judicial Activism’.

Source: http://online.wsj.com/article/SB10001424052702303425504577355781393852136.html?mod=googlenews_wsj&_nocache=1335276697606&user=welcome&mg=id-wsj