Wednesday, October 26, 2011

Will Obama Administration allow strict 'Sharia law' to be imposed on the freed Libyan people?

So the six month time limit under the War Powers Resolution Act for the President to either withdraw from “military intervention” in the Libyan civil war or receive Congressional approval came and went without much adieu.

True to form and our prior analysis, (see here and here), that leaves the progressive presidency of Barack Obama on record as entirely at one with the policy of the more conservative Reagan, Bush 41 and Bush 43 Presidencies in his assessment that the War Powers Act is something that can not only be unilaterally deemed “unconstitutional” by the Executive branch, but can, for all practical purposes, be ignored altogether, (how's that for the “Rule of Law” instead of men?!)

We shall leave aside that the actions of this Administration in doing so have arguably given this landmark culmination and compromise in our constitutional framework stemming from the political activism of the 60's “peace and flower” movement less respect than any previous one in history except perhaps Bill Clinton's, (and noticeably different from either of the Bush's, who in fact sought, and received, Congressional approval for the war in Afghanistan and both Iraq actions), and that this is the very sort of thing that used to tie liberal panties in a string, (remember all that media focus on the alleged “cowboy recklessness” of George W. Bush?)

Be that as it may, it is small potatoes compared to the bomb dropped this week, (no pun intended!) that the victors in the Libyan “civil war,” the so called “National Transitional Council,” intend on imposing Sharia law as the basis for the new Libyan Constitution. Excuse me?!?

Please tell me that we did not place our brave American servicemen and women in danger and spend almost 10 billion American taxpayer dollars in this impromptu and some say extraordinarily bungled hesitant and late entry of the Obama Administration into the conflagration weeks after the rebels asked for help, see here to simply replace one form of tyranny for another over the Libyan people.

It would be a cruel irony indeed if we replaced one brutal dictator with the entire oppressive legal framework of Sharia law that routinely denies women the most basic rights and brutalizes everyone who doesn't adhere to its tenants, (including denying Christians and Jews, who would inevitably be the minority in such a government), the right to worship and share their beliefs freely, see here and here).

  So ominous and, yes, dare we say un-Democratic is the likely result of Sharia law that it has even come up in the American Presidential race to replace Barack Obama in 2012, (see hereherehere, here and here).

For those unenlightened Sharia law is a strict implementation of Islamic law that does not allow women to vote or own property, bans all music and consumption of alcohol, and executes homosexuals and Christian converts from Islam alike, (see details here). 

  In short, it would be a disaster for the Libyan people who have so long yearned for freedom and make a mockery of our sacrifice to free them from Gadaffi's grip, (of course, judging from Obama's own history and attendance at Islamic Madrassas in Indonesia where he spent the majority of his formative years, we don't expect the Administration to care about the results that imposing strict Sharia law would have on the Libyan people's freedoms, not to mention our countries own legal traditions, see here). 

  Accordingly, perhaps it should come as no surprise that Mustafa Abdul-Jalil, the President of the National Transitional Council and the de facto (if temporary) ruler of Libya, should state that Sharia will form the "basic source" of Libyan law going forward and that laws in opposition to it will be nullified. 

  Indeed, contrary to the former Libyan Constitution of 1951 which under Article 11 guaranteed secular and equal rights to all regardless of religious affiliation but now seems likely to provide greater freedoms than the "new" Libyan Constitution will to its citizens, it has become abundantly clear that the new and imminent Constitution, (which is expected within 60 days of elections for a national legislative body, i.e., "Public National Conference" scheduled to occur within 8 months), will be based upon “Sharia law,” see here and here.  (And this in spite of the political left openly mocking those who warned of the possibility of influence from radical elements of the Muslim Brotherhood in the nations being convulsed by the "Arab Spring" resulting in a less than an apple pie and American-flag- waving-outcome, see herehere and here).   

 The Congress and State Department ought to do everything it possibly can to discourage this turn of events and convince the new leadership of the Libyan “republic” that America will take an extremely dim view of Sharia law being imposed and that such an outcome would unequivocally result in a cutting off of any financial or reconstruction aid Libya might otherwise expect in the post “intervention” period.

And while we're at it, we might also send them a bill for our investment to date in freeing them from Ghadafi's iron grip.

After all, if we're going to act like the world's policeman, it's only fair we be compensated for it. jp

Sunday, October 16, 2011

Is it time for Eric Holder to go? New documents suggest Attorney General committed perjury in Congressional testimony re: deadly and illegal BATF “Fast and Furious” gun tracking program.

Newly released documents uncovered in the Congressional investigation led by Darrell Issa, Chairman of the House Oversight Committee, into the “Fast and Furious” international gun trafficking operation conducted by the Obama Administration have raised doubt as to the truthfulness of U.S. Attorney General Eric Holder in sworn testimony before the House Oversight Committee in May of this year.  Coming on the heels of a string of reports bringing into doubt the Administration's claims about the controversial government operation executed through agents of the BATF out of the Phoenix Arizona field office, including revelations that the Federal government, after repeated denials, itself funded the illegal purchase of arms through "straw buyers," that there were more weapons than originally claimed, and the possible political motives of the Administration in letting the program go forward, (and indeed, expanding it!) the ACLP calls for the Attorney General's resignation.   The facts, and the reasons for our position are as follows:

In the May 2011 hearing before the Committee, Attorney General holder claimed he hadn't known about the controversial operation– which resulted in literally thousands of assault weapons being illegally sold to “straw buyers” at the behest of the Bureau of Alcohol, Tobacco and Firearms and transported across the Mexican border only to end up used in the murder of at least two American agents– until just two to three weeks before the May hearing, (for video see HERE).

The only problem is that evidence uncovered by CBS news and others, including emails released pursuant to a subpoena by the House Oversight Committee, reveal reports and meetings that show the Administration's chief law enforcement officer was informed as early as April of 2010 of potential problems with the government “gun tracking” scheme and had received no less than half a dozen other letters, reports, and memos on the controversial program from cabinet and government officials inside the Department of Justice in the prior year, (some addressed directly to his attention!)  In the face of this brazenly conflicting information the Oversight Committee has issued new subpoenas aiming to get to the bottom of the discrepancies and uncover once and for all just what the Attorney General, and others in the Administration, knew about the ill-fated program and when, see here and here.

Mr. Holder claims, in a letter to the Committee on Oct. 7, 2011, that he hadn't personally read those memos or that those under his command, whose alleged job it was to inform him of such things, hadn't done so, (prompting a scathing reply by Congressman Issa, see news here and here).  

Whether due to mere incompetence or a coverup that makes the Watergate scandal of the 70's that brought down the Nixon Administration seem like small potatoes cannot at this point be definitively determined, but, in any case, it is irrelevant.

Assuming the attorney general's explanation is true, this paints an equally or even more disturbing picture of a Justice Department under Holder that is so out of touch and dysfunctional in its critical duty of enforcing the nation's laws and policing itself as to be inexcuseable. Indeed, the fact that attorney general Holder wasn't even aware of this misconceived government operation long after its deadly consequences became public in December of 2010 argue forcefully that change is long overdue at the Department of Justice. (Indeed, coming on the heels of attorney general Holder's previous controversial decisions and continuous stonewalling on this and other matters some would say more than long overdue, see HERE, here, and here). That change should clearly begin with the firing of Attorney General Holder by the President.

Mystifyingly however, rather than call for full cooperation by his Chief law enforcement officer to determine who knew what at Justice and when they knew it or even express dismay at the revelation that his Attorney General appears to have misled Congress in attempting to carry out its oversight duties, President Obama curiously has instead defended Holder and made no such calls. The question is, why?

It is beyond serious doubt by astute political watchers that it would be in the President's favor– coming up to what will undoubtedly be a closely-fought re-election in 2012– for Obama to dump anyone from his administration that could hurt his chances of re-election, (as most presidents do routinely when approaching a potential second term); indeed, it is a fact of political life that such “political appointees,” i.e., those who serve at the pleasure of the President such as the attorney general, are, in political terms, dispensible and routinely fired for just this reason.

So the question is, could the refusal of Obama to do so reveal there is more to this story than currently meets the eye? (Rather than just a deep loyalty on behalf of Obama to his top law enforcement official?)  I mean, it's bad enough there are indications that the whole reason the Obama Administration pushed this dubious program initially was motivated by a desire to demonize lawful American gun makers and dealers for "Mexican cartel violence" and thus increase political pressure for new legislation restricting the right to bear arms, (a political goal of the Administration that would fit with its M.O. in other areas), but could this reticence on the part of the President be the result of a desire to protect his own self from political fallout if it were revealed he had personally signed off on the program?

While no one can presently say for sure– this is one of the very questions the newly issued subpoenas are likely to shed light on as the only way Holder can legally refuse the subpoenas is to claim 'Executive Privilege,' a defense available only if he admits having discussed the operation with the President– the fact this Administration is instead closing ranks and circling the wagons in support of Holder might suggest that knowledge of who knew about “Fast and Furious” and yet continued to approve its execution might indeed go all the way to the President. In this scenario it makes perfect sense why President Obama, who knows that throwing Holder under the bus could lead to revelations about his own knowledge of this unsavory (and illegal!) program that could eliminate any chance of his re-election come 2012, might defend Holder instead of fire him. This, to us, is the real story here.

We wish Congressmen Issa and others investigating the Administration's actions well in getting to the bottom of this scandal which has had deadly consequences as well as undermined U.S./Mexican relations and the credibility of American judgment and resolve to enforce our laws.   jp

Monday, October 10, 2011

Supreme Court Fall term preview; Obamacare, police Gps tracking and Illegal immigration

 A week after the traditional start of the Supreme Court's "Fall Term" on the first Monday in October, this year's court docket is shaping up to be a historical one in light of its potential for far reaching impact on the life of every single American.  This is primarily due to several watershed cases which the court is expected to rule on this term.  We therefore thought it appropriate to examine a few of the cases that some court watchers say will make the High Court's rulings this year the most important and momentous in decades, (perhaps even the whole 21st century!).

  First up, the High Court's decision to resolve the controversial "individual mandate" in Obamacare, (aka the "Affordable Care and Patient Protection Act," the Obama Administration's sprawling overhaul of the country's health care system).  A split between the Federal 11th and Sixth Circuit Courts of Appeal on this landmark legislation makes resolution of this matter not only a near certainty, but one with far reaching results for both the way government regulates (read "decides") not just the cost of health care, (and who will pay for it!), but the amount and kind of health care procedures Americans are entitled to receive in the future.

 Indeed, for the first time in history, a government bureaucrat will actually determine what procedures are medically necessary that individuals receive under their health plan, creating a potentially additional layer of interference between doctor and patient that many fear will end in health care rationing on an unprecedented level in an area which many feel insurance companies already have too much say in, (you can read our entire opinion on the dangers of Obamacare here).

  Of course, it goes without saying that whichever way the High Court comes down on this one, the ruling on Obamacare, expected to come next summer and smack dab in the middle of the 2012 re-election campaign of President Obama, will be an incredibly momentous and historical one in its likely impact on the 2012 elections, as well as on our health delivery system in this country in general.

  Second up, at least in potential impact on our republic in an equally contentious area of law, is the State of Arizona's anti-illegal-immigration bill S.B. 1070.  The Arizona bill, which aims to assist federal authorities and fill in the gaps on an out-of-control immigration problem that has inundated the Western state with Mexican immigrants in search of an American standard of living and accordingly overwhelming Southwestern states' like Arizona's schools and health care systems, (and, some say, taken American jobs at a time when employment is scarce), has never been allowed to take effect due to the Obama Administration (and others) immediately suing the state before it could.  

  And while we here at the ACLP don't feign to be experts enough in this area, nor do we have the time to definitively resolve such disputes, one matter is (indisputably!) not in dispute: The resolution of the legality of this law-- now copied by at least one other State, see here-- will have an enormous impact on the future of the states, (and our nation's for that matter), ability to protect itself from the effects of illegal immigration on our economic vitality and, in many ways, our very culture.   Moreover, we would be remiss approaching the presidential elections in 2012 not to mention that the matter has tangentially become an intense political issue recently due to a "gaff" of Texas Governor Rick Perry on related issues while debating Mitt Romney.

  In the Republican candidates debate in Orlando Florida on Sept 22, (see news here, and video of debate here, click on Sept 22 debate), Governor Perry responded that those who didn't support his policy in Texas of giving illegal immigrants in-state tuition at public universities didn't "have a heart," (video here), starting a furious debate within the Republican party on its immigration policy and, at least for Perry, accelerating a precipitous fall as front-runner of the Republican primary to a close race for second place with former businessman and CEO of Godfather's Pizza Herman Cain, (click here. Of course, not adequately addressed at the debate was the legal right of Arizona, which shares the second longest border with our neighbors to the South behind Texas, to pass its own laws, something that pro "states rights" candidate Perry might be expected to support).

  Watch for the resolution of this case's ability to potentially upend the Republican primary race for who will have the right to challenge President Obama in 2012 by-- depending on when the High Court resolves this case-- re-injecting this issue into the Republican campaign by summer, (if Perry can hold off Romney and Cain in the Iowa and early primary states long enough for the issue to remain relevant).

  Most important for our purposes is the potential impact of this case to determine the relationship between the states and the federal government on the immigration issue and to what extent, if any, they can work together to stem the tide of illegal immigration across our Southern borders, (the Obama Administration's legal position being that the Federal government alone under the Constitution's "Supremacy Clause" is the only level of government which has the right to pass legislation regulating this critical area).

  U.S. v. Jones is the last case of note and a matter of interest to us here at the ACLP-- as well as many privacy advocates around the country-- and regards the ability of the government to use increasingly powerful modern technology to invade average Americans private lives for less than compelling reasons.

  In light of those on the political left who seem to persistently believe that it is the political right which poses the biggest threat to personal liberty and that election of Barack Obama was the only antidote to a Patriot-Act promoting Bush Administration which they saw as invading the privacy rights of Americans, it is interesting that this case arises out of an appeal by the Obama Administration from the D.C Court of Appeals which overturned the conviction of a defendant on Fourth Amendment grounds after police affixed a gps device to track his movements without a warrant, (for pdf of court decision click here).  In other words, the Obama Administration is now arguing for less privacy of individuals and more authority for government surveillance of citizens.   Indeed, along with the continuation of Bush era policies re: indefinite detention of enemy combatants, the continued operation of Gitmo, continued, (indeed, increased!) use of predator drone strikes responsible for the taking out of terrorists like Anwar Al-Awlaki and continued economic malaise raising the chances of a 2012 Republican sweep it is not a good time to be a political liberal.  But I digress.

  On the merits of the police/gps cases the ruling of the D.C. Circuit contradicts that of another case, United States v. Juan Pineda-Moreno, in which the 9th Circuit Court of Appeals came to the opposite conclusion.  Indeed, just last year they upheld the right of police to place GPS tracking units on the cars of individuals without probable cause or a court order, (more in depth analysis of this case here).  

 The conflict between these cases in the Federal Circuit Court of Appeals makes resolution by the High Court necessary to clear up the issue, (one of the key purposes and reasons for the Supreme Court's intervention according to court rules).

  Legally, these federal rulings follow close on the heels of various state court rulings, the majority of which have ruled against the practice on Fourth Amendment grounds, see here, here, and here.  

  Most troublesome to us is the underlying premise of the 9th Circuit's decision, that individuals have little or  no "expectation of privacy" with regard to their vehicles on the public roads (or even parked in their own driveway in most cases!) such that would prohibit police from attaching such a tracking device, (in recent years a position of law increasingly expanded and used to legally justify everything from blanket "license check" roadblocks to "safe welfare" checks on children in custody disputes).

 Relying on a previous U.S. Supreme Court case, United States v. Knotts, in which the U.S. Supreme Court found a "beeper" tracking device constitutional, the 9th Circuit decision likened the police's conduct in tracking the movements of a suspected drug trafficker to that of detectives on a traditional "stakeout" or "tailing" a suspect.   The 9th Circuit essentially reasoned that since under Knotts an owner of an automobile using public roads, (and their driving habits of where and when they come and go), is entitled to no more an "expectation of privacy" under the Fourth Amendment than a person walking down a public street, the police's conduct in attaching a gps tracking device passed constitutional muster.  

  This ruling is interesting not only because it comes out of what is usually considered the nation's "most liberal" (and most reversed) Court of Appeals in the nation, (and thus makes an interesting switch in political as well as legal bedfellows from the usual state of affairs), but because it may provide us a glimpse into the views on such matters of the High Court's newest members, (Sonia Sotomayor and Elena Kegan, both appointed by President Obama in 2009 and 2010 respectively).

  Of course, what the Supreme Court will do with this case-- with two new Obama appointee judges who incidentally don't tip the ideology of the court in any particular direction as they replaced liberal-leaning justices-- is anyone's guess.

  However, keeping in mind that Knotts was decided on decidedly narrow grounds and the concurring decisions of Justices Blackman, Stevens and Brennan made clear their uncomfortability with both the treatment of certain precedents of the court and the broad terms of certain dicta of the Knotts decision, ours feeling is the odds are slightly against even that the High Court upholds the rights of the police in this case, (although the wild card here is Justice Antonin Scalia, who is known to be a maverick in certain areas of criminal jurisprudence and could easily tip the balance of the court).

  Indeed, although Scalia's strongest anti-police-power opinions have been in dealing with cases in which the text of the Constitution is crystal clear, (e.g. the constitution's guarantee re: Free speech or that an accused has the right "to confront his accusers" before he can lawfully be deprived of liberty), Scalia has frequently taken positions in favor of the liberty of individuals against expansion of governmental power, (shocking many on the left who believe that "conservatives" are all nazis with no respect for civil rights). For the record, and to shock and chagrin of our friends on the left of the political spectrum, our beliefs are to the contrary principled ones informed, and in fact strengthened, by a rock-solid belief in rights as immovable under the Constitution as we believe the words in its text are, a subject on which we reserve further examination for another day).

  In any case, and whichever way this one goes, with the potential to result in expanding the power of government at the expense of shrinking the privacy of individuals in our increasingly technology-monitored (and dependent) world, it cannot be doubted this case has the ability for immense change both to our American culture placing high value on being "free on the open road" as well as laying the groundwork for future intrusions into private life as technology expands.

  Of course, isn't that the rub?  How to not unduly hinder police in their important duties investigating criminals among us, a particularly needful and important job of the government, while at the same time not unduly threatening the rights of law abiding individuals, has always been a thorny balancing act.  This balancing act will only become more difficult, with its inherent moral and ethical dilemmas, (think movies like "Minority Report"), as time (and technology) march forward.

  We here at the ACLP will attempt to keep you apprised of such critical matters before the U.S. Supreme Court in 2011, and their impact upon our nation's political and civil freedoms.   jp