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Baghdad Harry

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Alexander Bolton of the Hill covers  Senate Majority Leader Harry Reid's statement to reporters yesterday assuring the nation that America's southern border is secure.  He made this remarkable statement as news video streams across the airwaves showing tens of thousands of foreigners flooding across the border into Texas, Arizona and New Mexico overwhelming the already inadequate border patrol and forcing agents to become caregivers to thousands of Central American children rather than a security force looking for drug smugglers and terrorists.   In the face of what is clearly a complete breakdown of U.S. border security Senator Reid is trying to BS the entire country.  Some may remember Mohammed Saeed al-Sahaf, Saddam Hussein's Minister of Information better known as Baghdad Bob, who in April 2003 stood in front of cameras on a Baghdad street and announced that Saddam's army had repelled coalition forces, while U.S. tanks were passing behind him. 

Colo. Gov. Race Poll: 49-43

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NBC News and Marist College have a new poll on the election in Colorado.  Incumbent Governor Hickenlooper leads former Congressman Bob Beauprez, 49-43.  A lead is a lead, of course, but for an incumbent governor facing a not-that-well-known opponent, to have less than a majority and only a six point lead this early in the election cycle is not good.  I would dearly love to see the voters of Colorado give Hickenlooper the heave-ho, as noted in my prior post.

A Parody of Drug "Strategy"

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The White House has come out with its 2014 edition of the National Drug Strategy.  

In a sense, I have to take my hat off to anyone who can write 79 pages of pure mush, using every left wing shibboleth for the last generation, and never come up for air. The idea that a sensible strategy might include putting meth (etc.) traffickers in the slammer is all but invisible.
 
Still, I'll give the authors credit for a sense of embarrassment (for once).  Out of all 79 pages, they could only choke out four sentences buried in the middle to give a pat on the head to Eric Holder and "smart" sentencing.  Part of this, of course, stems from their unwillingness to understand that any kind of sentencing might be useful.
 
I'm truly astonished that they can find someone to sit at a computer all day and churn out this stuff.  The job market must be even worse than the White House is admitting.

Libertarian Silliness on Drugs

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Libertarianism is a growing and welcome element of American politics.  It exists, so far as I know, only in the Republican Party, as the Democrats fade into a collection of snarling grievance groups.  But it's not at the center of Republican thinking and will never get there until it quits honing in on fringe issues and takes on the real threat to liberty  --  the explosive growth of the administrative/regulatory/entitlement/welfare state.

The chief fringe issue that preoccupies libertarians is the legalization of drugs.  As John Hinderaker puts it, libertarians:

...have not contributed as much as they should to the conservative movement...because they have tended to focus on secondary, or tertiary, issues of domestic policy.

A couple of years ago I was invited to a gathering on behalf of Gary Johnson, the former governor of New Mexico who then was a libertarian candidate for the Republican presidential nomination. I was well disposed toward him, but when he started talking, his first subject was legalization of drugs. Now he is the CEO of a marijuana company. Rand Paul is probably the leading libertarian at the moment; he purports to take seriously the threat that someone drinking coffee in an American cafe will be struck by a drone-fired missile, [in addition to supporting dumbed-down drug sentences]....

A battle is being fought for the liberties of the American people and, frankly, it isn't going well. The fight has little or nothing to do with drugs and drones. If libertarians are serious about preserving and expanding liberty, they should join the fight that matters.

It has long since been clear that the Justice Department is working, not for ordinary citizens who have benefited from the crime reduction we've enjoyed with longer sentences, but for the drug pushers who'd prefer that we go back to the disastrous, crime-ridden ways of the Sixties and Seventies.

Today the pushers got another (but hardly unexpected) boost when DOJ recommended large scale retroactive application of the newly reduced drug guidelines.  

One of the theories for lower sentences is that they are needed to reduce DOJ's very tight budget.  Today's move pokes a hole in that line, what with the significantly increased litigation costs certain to come about as tens of thousands of gleeful drug traffickers file motions and demand hearings to reduce their fully lawful sentences.

The Department's statement follows the break.

Look for What You Don't See

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Roll Call has an article out this morning about the agenda Majority Leader Harry Reid will pursue for the rest of this year's dwindling legislative session.

There's a bunch of stuff on it:  The Highway Bill, VA reform, student loans, energy efficiency, and the Export-Import Bank, among many others.

One omission caught my eye  --  the Smarter Sentencing Act.  This does not necessarily mean that it won't be brought up.  But if you're an SSA backer, you would not be happy having read Roll Call's assessment of what lies ahead  this year.

As for next year:  I don't know of anyone who expects the Party principally backing the SSA to get stronger; indeed the only question is how much weaker it's going to be after the November election.
Last week, a particularly interesting dialogue developed here between a former Scalia clerk and yours truly on whether the President broke the law in releasing the Taliban All-Terror Team without giving the required 30 days' notice to Congress.  The former Scalia clerk, Prof. Lee Otis, thought not; I disagreed.

Now comes Prof. David Pozen at Columbia, a former Stevens clerk, with another take on it.  Prof. Pozen's piece begins:


Section 1035(d) provides--without exception--that the Secretary of Defense "shall notify the appropriate committees of Congress of a determination" to transfer or release an individual detained at Guantanamo "not later than 30 days before the transfer or release of the individual."  The Secretary of Defense did not give advance notice in this case.  And yet, rather than argue that Section 1035(d) is unconstitutional as applied to the Bergdahl matter, the Administration has (as I understand it) invoked the absurd-results canon and argued that Section 1035(d) "should be construed not to apply to this unique set of circumstances."  We are asked to read the NDAA as if it exempts a sensitive prisoner swap from its congressional notification scheme, when the plain text of the statute does no such thing.

There are various frames through which this episode might be viewed:  as a dispute about the President's power over prisoners of war, the winding down of Guantanamo, or the "unique set of circumstances" behind the Bergdahl exchange.  I want to place the episode in a different and broader context, involving the Obama Administration's efforts to cope with congressional obstreperousness more generally.  Across a range of areas, this Administration has responded to perceived legislative misconduct by interpreting away legal limits that might have seemed to stand in its way.  Interpretation has been a tool of constitutional adaptation and retaliation.

The Coming Bergdahl Pardon

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Most reliable reports suggest that five years ago, as the battle against the Taliban was fully underway, Sgt. Bowe  Bergdahl voluntarily left his post after becoming disillusioned with what he viewed as the enormous damage the United States had done to Afghanistan.  In other words, he deserted.  He may have defected; that is unknown for the moment.

In recent days, the Administration has justified releasing five top terrorist commanders to return to the battlefield (after a fig-leaf stopover in Qatar) on the grounds that Bergdahl was still an American soldier, and America does not leave its people behind.  The President's supporters tell us that, if Bergdahl deserted  -- or even became a collaborator  --  we have the military justice system that will, at the right time, fully investigate the matter, put the facts on the table, and, if warranted, impose punishment.

Ladies and gentlemen, it's not gonna happen.  There isn't going to be any honest investigation, and there isn't going to be any punishment.  The President is going to issue a preemptive pardon to make sure the process never gets off the ground.

This is not just because the entire episode has turned into a P.R. disaster for the White  House, one that started when Bergdahl's  father showed up arm-in-arm with Obama wearing a Taliban-style beard and praising Allah in Arabic, although that's a good deal of it.  It's because, among other things, Obama doesn't see that much wrong with Sgt. Bergdahl's view of the matter.


Democracy is positively the worst form of government except for all the others that have ever been tried, goes the old Churchill quip.  Further evidence comes from yesterday's primary election in California.  Suspended Senator Leland Yee, indicted for corrupt activities with a notorious gang, got almost 10% of the vote for Secretary of State, the office that is supposed to protect the integrity of our elections.  What are those people thinking?

Fortunately, that third-place finish is insufficient for him to proceed to the general election in November.
Among preparing for the Over-Criminalization Task Force hearing, following the fabricated waiting list scandal at the VA, and now trying to keep up with the numerous lies being peddled about the release of the Taliban All-Terror Team, I've neglected to mention one quite important story.  It's the kind of story that, in days of yore (to wit, during George Bush's presidency) was the focus of a great deal of outrage in the press, an extensive grand jury investigation, and eventually the conviction of the Vice President's chief of staff.

The current story is of the White House's leaking the name of the Afghanistan CIA station chief.  The Administration's version is that it was "inadvertent," and I lack any evidence to say otherwise.  Still, it's odd that this gross security breach is being investigated by  --  no, not the FBI  --  Obama's hand-picked in-house Counsel.

The CIA's Afghanistan station chief is in the middle of a war zone and is, to say the least, a juicy target for the Taliban.  By contrast, when Richard Armitage leaked the name of Valarie Plame, a CIA desk jockey sitting in her plush office in Langley, Virginia, the MSM went berserk.  Armitage was never indicted, but Scooter Libby was.  Libby was convicted and sentenced to a stiff fine and jail. President Bush commuted the jail term, however, after an op-ed in the Washington Post argued that this was the just outcome.

Without saying more for the moment, I cannot help but be amazed by the forgiving, if not dismissive, attitude the press has taken toward the more recent and very dangerous CIA outing, compared with the savage attitude it took toward the comparatively inconsequential Valarie Plame case.


The President has justified the deal that released five top Taliban commanders, and his refusal to notify Congress of the release in advance (as required by statute), principally on two theories.

As to the refusal of notification, the Administration has said that the President's signing statement accompanying the statute gave him authority to undertake the release in emergency circumstances without telling Congress.

As to the release itself  --  which was the price for the return of the allegedly captive Sgt. Bowe Bergdahl  --  the White House's answer (per Jay Carney) has been, "He was a prisoner in an armed conflict, a member of the military, and in that situation the United States does not leave its men and women behind."

Neither statement is true.

A Willie Horton Moment?

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James Taranto has this column at WSJ, quoting a two-year-old Rolling Stone piece on Republican warnings that swapping terrorists for the deserter would be "Obama's Willie Horton moment."

Taranto also provides a reminder on the reality of the Willie Horton episode:

Willie Horton has become a sort of urban legend on the left, which seems to remember him vaguely as a victim of some sort of discrimination. In fact he is an actual man, now 62 years old and incarcerated in Maryland. He had previously served time in Massachusetts for the brutal 1974 murder of gas-station attendant Joseph Fournier. But in 1986 he was released on weekend furlough. He deserted and turned up the following year in Maryland, where he broke into a home, tied up and pistol-whipped the man of the house, and raped his fiancée.

In 1976, Gov. Dukakis had vetoed a bill to exclude first-degree murderers from the furlough program. But for that decision, Horton would have been unable to commit his subsequent crimes. Before Dukakis ever faced George H.W. Bush, Al Gore sought to hold him responsible for his furlough policy, which had been the subject of a Pulitzer Prize-winning investigation by the Lawrence Eagle-Tribune.
Horton was a genuine example of a stupid soft-on-crime decision resulting in the violent victimization of innocent people.  The use of this episode by political opponents was completely justified.  It is entirely appropriate that voters understand the real consequences of these decisions to real people.

The Over-Criminalization House Hearing

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For those who missed today's House hearing but would like to take a look, the video is here.  Although the Task Force is interested primarily in examining the proliferation of non mens-rea crimes as the regulatory state gets bigger and nastier, today's hearing was about the mandatory minimum debate.  The Congressmen make their opening statements, followed by the witnesses, of whom I was called upon first, starting at about minute 29:00.

I thought the four witnesses did a good job of summarizing the arguments on both sides. Having been a participant, I don't want to grade my own paper, so I'll make only two observations:  First, Ranking Member Conyers was the same complete gentleman he has always been to me, but might have ruined my reputation by accusing me of sounding reasonable.  Second, I have to admit I was happy to see that I have more hair left than anyone at the witness table, and practically any man in the room.

At my age, you count everything.

Q: When Is Murder Not Murder?

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A:  When there is believed to be political advantage in denying that it's murder.

I bring this up only because of the surreal claim from airhead commentator Eleanor Clift that Ambassador Chris Stevens was not murdered in Benghazi and "instead" died of smoke inhalation. 

Hey Eleanor, Your Brilliance, how did it come to pass that he died of smoke inhalation?

a)  Some ten year-olds decided to roast marshmallows outside the embassy gate and a big wind came up;
b)  An unreported volcano exploded, and it sent a sudden gust of smoke through Mr. Stevens' window;
c)  A bunch of armed Jihadists torched the embassy and had the Ambassador pinned in the safe room until it became so filled with smoke that it asphyxiated him.

Actually, of course, there is no political advantage in denying the obvious, but when it's Ideology Uber Alles, as it is with Ms. Clift, this is what happens.
John Conyers of Detroit, who will be 85 tomorrow, is the top Democrat on the House Judiciary Committee.  Although the Democrats are in the minority in that chamber, being the Ranking Member is an influential position (as Chuck Grassley proves daily in his counterpart position on the Senate Judiciary Committee).

But Rep. Conyers might not be there for long.  Amazingly, he did not submit enough legal signatures to qualify for the ballot.  He will probably conduct a write-in campaign, but the chances there are problematic.  He could also decide that, at 85, enough of Washington is enough.

If Conyers ever failed to vote for a bad piece of legislation, I can't remember what it was.  But I have three nice things to say about him.  He's focused and energetic for his age; he's a gentleman, having always been gracious to me when I testified (inevitably against his position) before his Committee; and, as Chairman in the late 1980's, he instigated and presided over the impeachment of corrupt then-federal district judge Alcee Hastings, who, like Conyers, is African-American. 

Of course, there were charges that Hastings was on the hook only because of racism.  Conyers rose to disagree, in words we would do well to remember today: "The principle of equality requires that a black public official be held to the same standard that other public officials are held to....Just as race should never disqualify a person from office, race should never insulate a person from the consequences of wrongful conduct."

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