It was Wednesday, shortly before Senator Rand Paul’s bravura 13-hour filibuster, the Jimmy Stewart star turn in Paul’s crusade to have the Constitution ban a bogeyman of his own making: the killing of American citizens on American soil by America’s armed forces — a scandal that clearly cries out for action, having occurred exactly zero times in the 20 years since jihadists commenced hostilities by bombing the World Trade Center.
At a hearing of the Judiciary Committee, Senator Ted Cruz was grilling Attorney General Eric Holder. Cruz seemed beside himself — in the theatrical spirit of the day — over Holder’s refusal to concede that the imaginary use of lethal force conjured up by Paul would be, under any and all circumstances, unconstitutional. The attorney general preferred the fuzzier term “inappropriate” — at least until Senator Cruz finally browbeat him into saying that by “inappropriate” he meant “unconstitutional.”
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Around the Pentagon, the budget cutters have put away their knives and are reaching for axes. In times like these, every service naturally circles the wagons around its share of the budget pie. The stress is so great that otherwise smart people take incredibly silly stands. Last week, for instance, the former chief of naval operations, Admiral Gary Roughead, published a paper that calls for cutting the Army in half and leaving the Navy’s budget untouched. He sums up the logic for this advice in a few simple words: “The force we propose accepts risk in the burden we are placing on our Army and Marine Corps.” Admiral Roughead, unfortunately, fails to tell us what risk he is accepting in the nation’s behalf. Let me do it for him. The risk he is taking on is summed up in one word: defeat.
A combined Air Force–Navy effort popularly known as Air-Sea Battle takes a seemingly more reasoned approach. At its base, Air-Sea Battle calls for purchasing expensive new weapons (lots of them) so as to clear the sea-lanes of enemies (that don’t yet exist), and to be able to fight through any enemy’s air and coastal defenses. These proposals, however, fail to answer a huge strategic question: To what purpose? After you have opened the sea-lanes and broken through an enemy’s defense, what do you do if that enemy refuses to surrender? In the past, we carried out these missions in order to open the door for the Army and Marines to enter a country and defeat an enemy force.
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I shall leave it to others to argue the legal and constitutional questions surrounding drones, but they are not without practical application. For the last couple of years, Janet Napolitano, the secretary of homeland security, has had Predator drones patrolling the U.S. border. No, silly, not the southern border. The northern one. You gotta be able to prioritize, right? At Derby Line, Vt., the international frontier runs through the middle of the town library and its second-floor opera house. If memory serves, the stage and the best seats are in Canada, but the concession stand and the cheap seats are in America. Despite the zealots of Homeland Security’s best efforts at afflicting residents of this cross-border community with ever more obstacles to daily life, I don’t recall seeing any Predator drones hovering over Non-Fiction E–L. But, if there are, I’m sure they’re entirely capable of identifying which delinquent borrower is a Quebecer and which a Vermonter before dispatching a Hellfire missile to vaporize him in front of the Large Print Romance shelves.
I’m a long, long way from Rand Paul’s view of the world (I’m basically a 19th-century imperialist a hundred years past sell-by date), but I’m far from sanguine about America’s drone fever. For all its advantages to this administration — no awkward prisoners to be housed at Gitmo, no military casualties for the evening news — the unheard, unseen, unmanned drone raining down death from the skies confirms for those on the receiving end al-Qaeda’s critique of its enemies: As they see it, we have the best technology and the worst will; we choose aerial assassination and its attendant collateral damage because we are risk-averse, and so remote, antiseptic, long-distance, computer-programmed warfare is all that we can bear. Our technological strength betrays our psychological weakness.
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We are now firmly ensconced in the brutal Age of the Sequester, and things in America are grave. The federal government, we learned on Wednesday, is so strapped for cash that the president has been forced to cut off the People’s access to the home he’s borrowing from them. He didn’t want to have to do this, naturally — “particularly during the popular spring touring season.” But then Congress just had to go and acquiesce in measures that the president himself had suggested and signed into law. How beastly! We axed 2.6 percent from a $44.8 trillion budget, and now the president can’t even afford the $18,000 per week necessary to retain the seven staff members who facilitate citizens’ enjoying self-guided tours around the White House.
The executive mansion is not in that much trouble, of course. It’s certainly not in sufficiently dire straits for Air Force One ($181,757 per hour) to be grounded, or to see the executive chef ($100,000 per year) furloughed, or to cut back on the hours of the three full-time White House calligraphers ($277,050 per year for the trio), or to limit the invaluable work of the chief of staff to the president’s dog ($102,000 per year), or to trim his ridiculous motorcade ($2.2 million). If Ellen DeGeneres wants another dancercize session or Spain holds another clothing sale, the first family will be there before you can say “citizen executive.” Fear ye not, serfs: Austerity may be the word of the week, but the president is by no means in any danger of being forced to live like the president of a republic instead of like a king.
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So here we are in the early dawn of the Age of Sequester, and the howls of rage are strangely subdued. Sure, Robert Reich is jumping up and down, and a few members of the bobblehead-pundit set are doing their thing, but, so far, there is no widespread public outcry over the “cuts”—which aren’t really cuts, of course, in most cases. Politically speaking, the sequester is a far tamer beast than, say, the Clinton–Gingrich government shutdown, an episode during which Republicans got burned, and burned but good.
As one insightful observer put it, the very modest reduction in the growth of government spending is roughly equivalent to an alcoholic switching from Guinness Extra Stout to Heineken Light, and while the ripples of economic anguish may be felt acutely by those closest to the federal cash flow — government employees and contractors — the general public seems at the moment to be taking the suspension of White House tours in stride.
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This week, the world was rocked by the news that an infant born in Mississippi with HIV has apparently been cured: The child tested positive for the disease several times in the first month after her birth, while she was receiving aggressive antiretroviral (ARV) treatment, but now, at the age of 23 months, she shows no sign of HIV.
This development points to a hopeful way forward for infants who contract HIV during gestation or at birth, but almost all of them live not in Mississippi, but in places like Mali and Namibia. Yet thanks to the United States government and private benefactors, prompted by President George W. Bush, many of those children and their mothers do have access to some HIV/AIDS treatment programs.
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?Freedom of the press is a foundational freedom upon whic
In Connecticut, reported Wednesday?s New Haven Register, ?Some Democratic state lawmakers are proposing to raise the 1 percent tax on such products to match the state's 6.35 percent sales tax, making Connecticut one of nearly two dozen states to extend sales taxes to downloaded products.? When I read this on the train earlier, I couldn?t help but whistle the tune from the 1952 revival of the Kaufman/Ryskind/Gershwins musical Of Thee I Sing, the ?Senatorial Roll Call,? where lawmakers merrily break out singing:
The people think they've got taxation. Ha! Ha! Ha! Just wait for further legislation. Ha! Ha! Ha! Today is really full of laughter. Ho! Ho! Ho! Compared to what will follow after! Ho! Ho! Ho! With fury though you may be seething. Ha! Ha! Ha! Just wait until we tax your breathing. Ha! Ha! Ha!
On taxes, None relaxes When this happy group convenes! Be it payroll, be it income- We are gathered here to sink ?em. Till there's no one with a nickel in his jeans. If you think you've got taxation, Wait for further legislation, And you'll find out what taxation really means! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha!
By the way, Morrie Ryskind wrote many pieces for National Review, including two in the 1955 premier issue.
You can always rely on the administration of Barack Obama, a former constitutional-law lecturer (or as his résumé-inflating fans put it, "professor"), to do the sleazy thing when it comes to the Constitution the president is sworn to defend. Thus, the performance on Wednesday of Lois Lerner, chief of the Obama IRS?s Conservative Harassment Division, before the House oversight committee.
There?s an old scam criminal defendants occasionally pull. They give a bit of exculpatory direct testimony -- just enough to gaze plaintively at the jurors and swear, cross-their-hearts, that they are pure as the driven snow. Then, just as the moment of submitting to cross-examination approaches, they announce that, even though they're really, truly innocent, they just can't answer the mean prosecutor?s questions -- on advice of counsel, of course, in reliance on the Fifth Amendment.
Everyone familiar with this area of the law knows that this is contemptuous conduct. To testify, by definition, is to agree to submit to cross-examination. Once you begin to answer questions -- i.e., to testify -- you waive your right not to testify -- i.e., not to answer questions.
In a trial, the judge does not put up with such shenanigans, which are, after all, a fraud on the process. The court rules that, by giving exculpatory testimony on direct examination, the defendant has waived his Fifth Amendment privilege; therefore, the defendant is directed to answer the prosecutor?s questions on cross-examination. If he persists in refusing to answer, he is held in contempt. Thereafter, each refusal to answer is a separate contempt, for which the defendant can (a) be jailed by the judge (until he relents and agrees to be cross-examined), and (b) later prosecuted by the government, because contempt is an indictable crime, too.
The point of the scam is obvious. The defendant wants to get his proclamation of innocence out in the public domain -- maybe it will influence a juror or two. Lerner is not on trial (not yet, anyway) but her tactic had the desired effect: all day long the networks have been running loops of her assertions of innocence.
In this situation, the prosecutor has a choice to make. Option 1: Move to have the testimony stricken. But though the Court will grant this motion, it really does not cure the problem. After all, the jury has already heard the testimony; even if the jurors are told not to consider it, they may be influenced by it. Thus, Option 2: Be prepared to ask numerous pointed questions showing the various weaknesses in the claim of innocence, and put the defendant in the position, every single time, of refusing to answer these questions.
The main disappointment this morning was Chairman Darrell Issa?s stunning unpreparedness. Representative Issa is not a lawyer, but one must assume he has access to decent legal advice as chairman of the House oversight committee (in addition to being a member of the judiciary committee). An experienced lawyer could see this stunt coming a mile away. Indeed, the press reported all day on Tuesday that Lerner would take the Fifth.
Again, there are two obvious ways to handle the dilemma Issa found himself in. Option 1: Before permitting Lerner to read her self-serving statement into the record (and the cameras), you put her under oath and ask her, with her lawyer standing next to her, whether she intends to refuse to answer the committee?s questions; if she and counsel indicate that that?s the plan, you can either dismiss her there and then, or ask her a few questions to demonstrate that she will take the Fifth -- but in either event, you don?t let her read her opening statement.
Or there?s Option 2: You let her read her statement, but then be ready to go with about 30 or 40 pointed questions designed to show how crooked she appears to be and thus how suspect her protestations of innocence are. When you do that, Mr. Chairman, your questions and her refusals to answer go on the TV news loop, too, and they make the administration look every bit as terrible as it deserves to look.
Chairman Issa clearly did not know what to do, resorted to neither option, and ended up with the worst of both worlds: Lerner got her self-serving statement out and then was not pounded by exacting, factual questions. Fortunately, South Carolina Republican Trey Gowdy, an excellent prosecutor in his former life, interrupted the proceedings to explain exactly what Lerner was trying to pull and why it was a willful perversion of the truth-seeking process. (And that made the loop, too.)
One last thing. Ms. Lerner also predictably did a song-and-dance about how the Fifth Amendment privilege is designed to protect innocent people, and how no one should think she?s guilty of any wrongdoing just because she has declined to explain herself. This is part untrue and fully disingenuous.
The Fifth Amendment privilege is not designed to protect the innocent. The innocent do not need protection from the truth (just from the IRS). The privilege is designed to protect the bedrock principle that the burden of proof is always on the government and, derivatively, that a person is never required to prove his innocence. (No surprise, I suppose, that an IRS official is unfamiliar with these foundational pillars of Anglo-American law.) And though Lerner, ever mindful of the cameras, went out of her way to avoid saying so, the Fifth Amendment privilege against self-incrimination can be asserted in good faith only if the person has reason to believe a truthful answer could tend to incriminate her.
Hopefully, Chairman Issa learns how to do this dance. The music doesn?t sound like it will be stopping any time soon.
On Special Report, Charles Krauthammer attempted to explain IRS official Lois Lerner?s choice to plead the Fifth before the House Committee on Oversight and Government Reform -- but observed that by making a ?substantive statement? on the issues before the Committee, ?She clearly gave up her Fifth Amendment right, if not entirely, at least on the things she said: ?I didn?t break any laws, I didn?t break any of the regulations, I did nothing wrong.? On those she must speak with the Committee.?
He also criticized committee chairman Darrell Issa for his handling Lerner?s brief appearance ?weakly and with such uncertainty.?
I hate to say it, but unless Kevin changes his mind, the next mayor of New York City is probably going to be a Democrat. And I strongly suspect that Anthony Weiner is the most reasonable and tough-minded of the bunch. (I know this constitutes a harsh condemnation of New York City politics.)
This week the Ninth Circuit Court of Appeals struck down Arizona?s law prohibiting abortion at or after 20 weeks of pregnancy -- a law that was based on uncontroverted medical evidence that abortion?s risks to maternal health increase dramatically at 20 weeks gestation.
It is universally accepted that risks to maternal health from abortion increase as pregnancy progresses. There is no debate on that fact, and peer-reviewed evidence utilized by the Arizona Legislature demonstrated that abortion imposes significant risks of harm beginning at 20 weeks gestation.
In fact, in his concurring opinion in this case, Isaacson v. Horne, Judge Andrew J. Kleinfeld noted that the risks are indeed considerably greater after 20 weeks, and that the state presented substantial medical evidence to support its legislative findings.
In other words, a woman seeking an abortion at 20 weeks is 35 times more likely to die from abortion than she was in the first trimester. At 21 weeks or more -- still before the child becomes viable -- she is 91 times more likely to die from abortion than she was in the first trimester.
These are the same numbers relied upon by the pro-abortion Guttmacher Institute. In fact, in its ?Facts on Induced Abortion in the United States,? Guttmacher emphasizes the increased risk of death by setting it apart in the text, because the numbers are actually quite startling:
The risk of death associated with abortion increases with the length of pregnancy, from one death for every one million abortions at or before eight weeks to one per 29,000 at 16?20 weeks -- and one per 11,000 at 21 or more weeks.
But these data did not matter to the three-judge panel in Isaacson. That panel strictly applied the ?viability? rule stemming from Roe v. Wade, claiming that no state can prohibit abortion before viability (around 23 to 24 weeks), regardless of whether later-term abortion substantially increases the mother?s risk of death.
The Ninth Circuit?s stance, albeit incorrect, is clear: Despite the fact that both sides agree that abortion at or after 20 weeks greatly increases the risk of maternal death, the ?right? to abortion is more important than the lives of women.
But such adherence to a strict ?viability? rule is not at all what the U.S. Supreme Court intended.
In fact, the Court made clear in Roe v. Wade, Planned Parenthood v. Casey, and Gonzales v. Carhart that the state has a legitimate interest in protecting maternal health from the outset of pregnancy -- not just from the time the unborn child reaches viability.
And this legitimate interest in protecting maternal health is emphasized by the Court?s reasoning in the Gonzales decision, which concluded that state legislatures are to be given ?wide discretion? to regulate abortion when there is ?medical uncertainty? as to the safety of the procedure.
Here, there is no ?medical uncertainty.? It is undisputed that the risk of complications and even death increases substantially at and after 20 weeks gestation. But the Ninth Circuit clung to the outdated ?viability rule? while ignoring portions of Supreme Court?s abortion jurisprudence that did not comport with its desired result.
Judge Kleinfeld?s concurring opinion provides some hope that future abortion bans predicated on medical evidence and legitimate concern for women?s health will be upheld. He implied that his hands were tied by the ?viability rule,? but noted that it is an odd rule because viability changes as medicine advances. The judge also acknowledged that the state and its amici made good arguments as to why the timeline of viability should not be the standard in abortion law.
In the meantime, what we see in the Isaacson decision is what we have expected all along: Medical data and techniques are vastly outpacing the outdated assumptions of Roe and its progeny -- and many on the bench are refusing to catch up, instead clinging incoherently to the ?right? to abortion at the expense of women?s health and welfare.
? Mailee R. Smith is staff counsel for Americans United for Life.
Unnecessary legislation watch: House Democrats (and a Republican) want to meddle in the matter of employer access to Facebook. Sure, a lot of people aren't smart about Facebook, but that's no good reason to expand government here. Let's not micromanage. We just went over this with ECPA.
How can we trust new government regulations of Cybersecurity, Obama-style, when heavily regulated utilities are doing so poorly? That's why we need a light touch, low on regulation, CISPA-style.
"Let's face facts: the American media is in an abusive relationship with Obama."
So marvelously said Dennis Miller on Fox New's the O'Reilly Factor in a discussion about the Internal Revenue Service scandal Wednesday (video follows with transcript and absolutely no need for additional commentary):