Tag Archives: America

Not just the Middle East: Obama foreign policy record is appalling

The organizing principle of the administration’s foreign policy is one of weakness and passivity, coupled with a conspicuous rhetorical abdication of American leadership, write David Rivkin and Lee Casey.

by David B. Rivkin, Jr. Lee A. Casey | September 21, 2012 4:45 AM EDT

A few days ago on The Daily Beast, Leslie Gelb praised President Obama’s handling of the unfolding crisis in the Middle East last week and evidently discerns no connection between the ensuing wave of anti-American violence and the broader parameters of American foreign policy. He is wrong on both counts. The administration’s crisis management has been mediocre. Even more fundamentally, the current assault on America’s position in the Middle East is attributable not to the trailer for an obscure anti-Muslim movie, but to Obama’s own foreign-policy failures.

The administration’s crisis-management strategy continues to emphasize its regret about that film, Innocence of Muslims. This was manifest not only in the original (and subsequently retracted) statement from our embassy in Cairo, but in all statements by Secretary of State Hillary Clinton and the president. But deploring efforts to denigrate Muslim religious beliefs is only the first half of the sentence. The administration should have also robustly propounded its commitment to the virtues and values of free expression in a free society, and why this must necessarily encompass offensive speech. Whenever the White House mentions the First Amendment these days, it is done mostly in a defensive mode, by way of explaining (almost in sorrow) to the Muslim world why the U.S. government cannot legally suppress anti-Muslim films rather than a compelling explanation of why such films should not be suppressed. As Clinton stated on Sept. 14, “I know it is hard for some people to understand why the United States cannot or does not just prevent these kinds of reprehensible videos from ever seeing the light of day.” But simply saying that free speech is enshrined in our Constitution “is not enough” the administration must explain why that is a good thing to which they too should aspire.

The administration also has failed to tell the Muslim world that Western critics of religion, far from singling out Islam, regularly unleash a torrent of offensive speech directed at Christianity and Judaism. In addition, no senior administration official has seen fit to elucidate any historical perspective on America’s relationship with the Islamic world, including our unparalleled record of support for Muslim causes. Brief references to U.S. support for the Libyan revolution is not sufficient” this must be at the center of our message to the Muslim world. America and its NATO allies have spent their own blood and treasure to protect Muslims facing slaughter and oppression in places ranging from Afghanistan to Bosnia to Kosovo to Iraq.

Equally lacking has been any public manifestation of the administration’s anger about the anti-American demonstrations that have taken place over the last week. Simply condemning violence is not enough. The administration must make clear that there can be no justification for any protests against America as a country simply because some private Americans have exercised their First Amendment rights in an offensive manner. And Washington’s failure to do so is viewed as the ultimate manifestation of American guilt, thus enflaming, rather than calming, the situation.

The administration has also conspicuously failed to criticize publicly President Mohammed Morsi and other Arab leaders, whose responses to the anti-American demonstrations have been slow, equivocal, and relatively ineffective. Indeed, to this day Morsi has condemned violence but endorsed the anti-American protests from which it ensues. The fact that the Egyptian prosecutor-general has found time to indict several American citizens, allegedly associated with the production of an anti-Islamic film, is both a violation of international law and a sign of disrespect for the United States.

The ultimate irony for an administration oft-praised for superior rhetoric is that in today’s tightly knit global environment, words have palpable consequences.

Morsi’s behavior is particularly deplorable because the U.S. was instrumental in bringing him to power, first by easing out President Hosni Mubarak and later by playing the leading role in restraining the Egyptian military during the post-Mubarak transition. The fact that Morsi has unimpeachable Islamic credentials, and is therefore in an excellent position to both speak out forcibly and act robustly against anti-Americanism, makes the administration’s failure to call him to account all the more glaring.

But all of this flawed crisis management pales in comparison with the administration’s strategic failures. The organizing principle of the administration’s foreign policy is one of weakness and passivity “whether in dealing with Russia, China, or Venezuela” coupled with a conspicuous rhetorical abdication of American leadership, evident in speeches by the president, secretary of state, and other administration officials. The ultimate irony for an administration oft-praised for superior rhetoric is that in today’s tightly knit global environment, words have palpable consequences.

This overarching problem is accentuated by the fact that everybody in the Middle East “our friends, foes, and folks in between” has correctly concluded that the administration has begun America’s disengagement from the region, on a scale unseen since the days of the British withdrawal from “East of Suez”. This has manifested itself in virtually every facet of our Middle East policy, from our failure to maintain any American military presence in Iraq and the consequent loss of diplomatic and economic influence in Baghdad; to Washington’s unwillingness to rally the American public to support our military efforts in Afghanistan and its repeated snubs of our strongest traditional Middle East ally, Israel; to our leading from behind on Libya and the total failure to lead from any direction on Syria; and last but not least, to our timidity in confronting the Iranian nuclear weapons program. As a result, the Middle East elites and the proverbial “Arab street” have concluded that the U.S. is a waning power, Israel’s future is one of a besieged state that someday may disappear from the regional chessboard, and Iran has an excellent chance of becoming a regional hegemon, to be feared and placated.

These are self-inflicted wounds. The American disengagement has not been caused by military defeat or some adverse international developments that we have tried but failed to stop, but by an administration that has profoundly misunderstood the kind of world we live in, the types of threats we confront, and what constitutes vital American interests. The administration has amassed not just a middling or even moderately bad foreign-policy record, but an appalling one. It is this record that is shaping the way the governments in the Middle East are handling the anti-American unrest. Unless the record is decisively reversed, it will lead to many disastrous developments down the road.

Source: http://www.thedailybeast.com/articles/2012/09/21/not-just-the-middle-east-obama-foreign-policy-record-is-appalling.html

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A triumph and tragedy for the law

To uphold the individual mandate as an exercise of the taxing power, the majority overlooked the natural meaning of the statutory text.

By DAVID B. RIVKIN, JR. AND LEE A. CASEY

The Supreme Court’s ObamaCare decision is both a triumph and a tragedy for our constitutional system. On the plus side, as we have long argued in these pages and in the courts, the justices held that Congress’s power to regulate interstate commerce cannot support federal requirements imposed on Americans simply because they exist. The court also ruled that there are limits to Congress’s ability to use federal spending to force the states to adopt its preferred policies.

However, in upholding ObamaCare’s mandate that all Americans buy health insurance as a kind of “tax,” the court itself engaged in a quintessentially legislative activity—redrafting the law’s unambiguous text. The court struck down ObamaCare as enacted by Congress and upheld a new ObamaCare of its own making.

Congress grounded ObamaCare’s individual insurance coverage mandate in its power to regulate interstate commerce, supported by the Constitution’s Necessary and Proper Clause, which permits Congress to make all laws “necessary and proper” for carrying into effect its various enumerated powers. It relied on these constitutional provisions so as to avoid the clear political costs involved in simply raising taxes to create the universal health-care system ObamaCare’s backers really desired.

ObamaCare defenders, in the courts of law and public opinion, have been pressing these points for the last two years, and they lost. A majority of justices ruled that the Commerce Clause, even in conjunction with the Necessary and Proper Clause, cannot support federal regulation of “individuals as such, as opposed to their activities.”

This is a profound and highly significant reaffirmation of the Constitution’s federalist structure, which assigns only limited and enumerated powers to the federal government and reserves the power to enact broad health and welfare regulations to the states. Here, the court clearly rebuked Congress, sending a very clear message: There are judicially enforceable limits to your power.

Equally important, the court also ruled that the federal government cannot use its spending power to coerce the states into adopting federal programs and requirements. As originally enacted, ObamaCare required the states to expand their Medicaid programs so that they would cover those with incomes far above the federal poverty line. This would have shifted untold costs to the states, with the federal government paying these costs only for a limited time. The alternative that states faced was the loss of all federal Medicaid funding. Seven justices ruled that, applied in this manner, the law was unconstitutional and rewrote it to avoid this outcome. As a result, this federal hammer can no longer be used to force the states to support ObamaCare’s Medicaid expansion.

This is significant. Since deciding Steward Machine Co. v. Davis in 1937, the Supreme Court has maintained that the Constitution limits Congress’s power to coerce the States through federal grants, but it has never identified the boundaries between the permissible use of federal funding as a carrot and unconstitutional federal coercion. The ObamaCare decision began to draw those lines, putting real limits on Congress’s ability to use the states as simple administrative units to carry out its will.

On the debit side, the court upheld ObamaCare’s individual mandate as an exercise of the federal taxing power. The law was not passed as a tax, and both the president and ObamaCare’s congressional supporters persistently proclaimed that they were not raising taxes. The court itself was forced to concede that “the statute reads more naturally as a command to buy insurance than as a tax.”

In order to reach its conclusion that the mandate was a tax, and avoid the political fallout of striking down President Obama’s signature achievement in an election year, the court did more than overlook the statutory text’s natural meaning. It ignored congressional enactment of the mandate in a separate provision from any penalty. As Justices Scalia, Kennedy, Thomas and Alito wrote in dissent, “to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it.” The perhaps unintended irony of this judicial edit is that politicians who wish to impose this type of mandate in the future will no longer be able to claim that they are not imposing a new tax.

The court’s ObamaCare opinion presents an uncertain legacy. The court reaffirmed and clarified the constitutional limits on Congress’s power to regulate commerce and to spend money. Yet the individual mandate and the law’s Medicaid expansion were upheld through judicial copyediting that the court has always found to be beyond its own constitutional power. The fact that this happened in the context of a hotly contested statute raises questions about the court’s ability to remain immune to political pressures.

Messrs. Rivkin and Casey are lawyers in the Washington, D.C., office of Baker & Hostetler LLP. They pioneered the constitutional arguments against the individual mandate and represented 26 states in challenging ObamaCare before the trial and appellate courts.

A version of this article appeared June 29, 2012, on page A13 in the U.S. edition of The Wall Street Journal, with the headline: The Court Rewrites ObamaCare.

Source: http://online.wsj.com/article/SB10001424052702303561504577494972697358622.html?KEYWORDS=david+rivkin

Detainees barred from access to U.S. Courts

(from The New York Times, May 21, 2010)

By Charlie Savage

WASHINGTON — A federal appeals court ruled Friday that three men who had been detained by the United States military for years without trial in Afghanistan had no recourse to American courts. The decision was a broad victory for the Obama administration in its efforts to hold terrorism suspects overseas for indefinite periods without judicial oversight.

The detainees, two Yemenis and a Tunisian who say they were captured outside Afghanistan, contend that they are not terrorists and are being mistakenly imprisoned at the American military prison at Bagram Air Base.

But a three-judge panel of the United States Court of Appeals for the District of Columbia ruled unanimously that the three had no right to habeas corpus hearings, in which judges would review evidence against them and could order their release. The court reasoned that Bagram was on the sovereign territory of another government and emphasized the “pragmatic obstacles” of giving hearings to detainees “in an active theater of war.”

The ruling dealt a severe blow to wider efforts by lawyers to extend a landmark 2008 Supreme Court ruling granting habeas corpus rights to prisoners at Guantánamo Bay, Cuba. A lower court judge had previously ruled that the three Bagram detainees were entitled to the same rights, although he had found that others captured in Afghanistan and held there were not.

A lawyer for the detainees, Tina Foster, said that if the precedent stood, Mr. Obama and future presidents would have a free hand to “kidnap people from other parts of the world and lock them away for the rest of their lives” without having to prove in court that their suspicions about such prisoners were accurate.

“The thing that is most disappointing for those of us who have been in the fight for this long is all of the people who used to be opposed to the idea of unlimited executive power during the Bush administration but now seem to have embraced it during this administration,” she said. “We have to remember that Obama is not the last president of the United States.”

Senator Lindsey Graham, Republican of South Carolina and an influential lawmaker in the long-running debate over detentions, called the ruling a “big win” and praised the administration for appealing the lower court’s ruling.

“Allowing a noncitizen enemy combatant detained in a combat zone access to American courts would have been a change of historic proportions,” he said. “It also would have dealt a severe blow to our war effort.

“There is a reason we have never allowed enemy prisoners detained overseas in an active war zone to sue in federal court for their release. It simply makes no sense and would be the ultimate act of turning the war into a crime.”

It was not entirely clear how the ruling might affect detention policies for terrorism suspects caught outside Afghanistan or Iraq. While the Obama administration has stepped up the use of Predator drone strikes to kill terrorism suspects and has relied on other countries, like Pakistan, to hold and interrogate suspects who are captured alive, it is not known whether the United States has directly captured anyone outside Afghanistan or Iraq recently — and, if so, where it has taken them.

A Justice Department spokesman, Dean Boyd, would not comment on the decision.

David Rivkin, who filed a friend-of-the-court brief on behalf of the Special Forces Association urging the court to side with the government, said the ruling would have broad significance by removing doubts over whether the United States could capture and interrogate terrorism suspects without worrying about having to collect, in dangerous situations, evidence that would later stand up in court.

“This is an excellent decision,” said Mr. Rivkin, who was a White House lawyer in the administration of the first President Bush. “It has restored a considerable degree of sanity to what threatened to be a crazy legal regime that would have deprived the United States, for the first time in history, of the opportunity to capture and detain — outside of the United States, in theaters of war — high-value combatants. That has been solved, and it will apply to many other situations in the future.”

The case was brought on behalf of a Tunisian man who says he was captured in Pakistan in 2002, a Yemeni man who says he was captured in Thailand in 2002, and another Yemeni man who says he was captured in 2003 at another location outside Afghanistan that has not been disclosed. (The government has disputed the second Yemeni’s claim.)

The men’s case was originally heard by Judge John D. Bates of the Federal District Court, an appointee of former President George W. Bush. The Bush and Obama administrations had both urged Judge Bates not to extend habeas corpus rights beyond Guantánamo, arguing that courts should not interfere with military operations inside active combat zones.

But in April 2009, Judge Bates ruled that there was no difference between the three men who had filed suit and Guantánamo prisoners. His decision was limited to non-Afghans captured outside Afghanistan — a category that fits only about a dozen of the roughly 800 detainees at Bagram, officials have said.

In urging the appeals court to let Judge Bates’s decision stand, lawyers for the detainees argued that reversing it would mean that the government would be able “to evade judicial review of executive detention decisions by transferring detainees into active combat zones, thereby granting the executive the power to switch the Constitution on or off at will.”

But in the appeal panel’s decision reversing Judge Bates, Chief Judge David B. Sentelle said there had been no such gamesmanship in the decision to bring the three detainees to Bagram because it happened years before the Supreme Court’s Guantánamo rulings.

Still, he left the door open to approving habeas corpus rights for prisoners taken to prisons other than Guantánamo in the future, writing, “We need make no determination on the importance of this possibility, given that it remains only a possibility; its resolution can await a case in which the claim is a reality rather than speculation.”

Ms. Foster vowed to keep fighting. But Mr. Rivkin said that the detainees’ chances for overturning the decision were dim because the three appeals judges spanned the ideological spectrum: Chief Judge Sentelle, appointed by President Ronald Reagan; Judge Harry T. Edwards, appointed by President Jimmy Carter; and Judge David S. Tatel, appointed by President Bill Clinton.

It could also be difficult to win a reversal by the Supreme Court, where five of the nine justices supported giving habeas rights to detainees in the Guantánamo case. Among the narrow majority in that case was Justice John Paul Stevens, who is retiring.

The nominee to replace him, Elena Kagan, who as solicitor general signed the government’s briefs in the case, would most likely recuse herself from hearing an appeal of the decision, and a four-four split would allow it to stand.

Source: http://www.nytimes.com/2010/05/22/world/asia/22detain.html

Why gridlock in Washington is good

(Republished from The Wall Street Journal: Opinion)
February 21, 2010
By DAVID B. RIVKIN JR. AND LEE A. CASEY

Members of Congress generally give one of two reasons for quitting. Those evacuating the capital because of scandal invariably want to “spend more time” with their families. Those leaving to become a lobbyist or head home to seek election to even higher office complain about “gridlock” and how badly the system is “broken.”

Sen. Evan Bayh (D., Ind.), for example, cited the difficulty of achieving “legislative accomplishments” as reason for his decision not to seek re-election this year. Gridlock, however, is part of the Constitution’s design and is consonant with our underlying political traditions.

When they gathered in Philadelphia in 1787, the Constitution’s framers had three goals: Establish a strong national government that nevertheless respected states’ lawful prerogatives; impose limits on the exercise of government power so as to protect the citizenry’s life, liberty and property; and create a stable and enduring political system. These men had lived through a revolution and war, and they understood the importance of regulating “by a system cautiously formed and steadily pursued,” as noted by John Jay in the Federalist Papers.

The Framers achieved this stability by generally requiring a high level of consensus in support of governmental action. Accordingly, the Constitution deliberately makes achieving “legislative accomplishments” difficult.

As every school child once was taught, all federal laws must be first agreed to by both houses of Congress, which are themselves fundamentally different institutions with different constituencies, powers and interests. In addition, federal legislation must be acceptable to the president, or both houses must vote to override his veto by a two-thirds majority. As a result of these stringent requirements, the vast majority of legislative proposals never become law for the very reason that the necessary consensus is so often elusive.

Changes to the Constitution itself require an even higher consensus. Such amendments must not only command super majorities of two-thirds in both houses of Congress, they must also garner the support of three-fourths of the state legislatures (or of special ratifying conventions). In 220 years there have been only 27 amendments because that level of national agreement is profoundly difficult to obtain.

In addition, the Senate was itself designed to serve as a brake on change. As explained by James Madison, also in the Federalist Papers, the Senate would be a “temperate and respectable body of citizens” able to check the citizenry when “stimulated by some irregular passion.”

Taking this role seriously, the Senate did the framers one better by adopting the much abused filibuster rule. Today it requires that 60 senators agree to end debate on any particular measure before a vote can even be taken.

In short, the government established by the U.S. Constitution, as well as the document itself, is “conservative.” Its default is the status quo, unless and until the advocates of change can secure a sufficient consensus to support their idea.

In a republic of vast space and an even vaster diversity of interest and opinion, in most instances this means that anyone who wants to get “something done” in Washington will have a tough row to hoe and must be prepared to compromise. Such compromise is the bane of ideologues and idealists alike. But that is how consensus is reached.

When the country is fundamentally divided over an important issue—such as health-care reform—the necessary consensus may not be achieved. Moreover, disputes about one issue may well pour over into another, making compromise and consensus even more difficult. But that is simply human nature.

All of this may well mean that change, even necessary change, is postponed or permanently thwarted. But that is the price of the remarkable stability of government we have.

Despite the perpetual griping about Washington’s political gridlock, the American people appear instinctively to understand and accept the Constitution’s consensus-based architecture and support the very sort of compromises the system is designed to secure.

Messrs. Rivkin and Casey, Washington, D.C.-based attorneys, served in the Department of Justice during the Ronald Reagan and George H.W. Bush administrations.