Obama’s New Data Hub

And we thought things couldn’t get worse after the cover on the IRS abuses was blown and the scope of NSA snooping on Americans was revealed. As details about the ObamaCare data hub leak out, our constitutional Fourth Amendment protection is fading faster than a post-election promise.

This is what happens when 2,700-page bills are passed that none of the elected officials have the time or interest to read before voting on it. Since no Republican in either house voted for ObamaCare, I’m talking about Democrats, of course, whose air-headed leader in the House of Representatives famously said, “… we have to pass the [healthcare] bill so that you can find out what’s in it....”

Well, we’re finding what’s in it.

The fulcrum of ObamaCare is its 50 insurance exchanges – one in each state. Among other functions, the exchanges collect data and information required to administer ObamaCare. The agency that enforces compliance is the IRS, renowned for its citizen abuse skills. The Chief Knee-cracker for ObamaCare enforcement is Sarah Hall Ingram, who was in charge of the IRS office at the center of the Tea Party targeting scandal and gave her the experience for this assignment. If Sarah Hall Ingram were Thelma, Louise would be Kathleen Sebelius, the Secretary of Health and Human Services, who was given absolute control in the law to implement the aim of ObamaCare by whatever means she chose.

The means she chose include the ObamaCare data hub – the Mother of All Databases – a technology achievement never before attempted on this scale.

The data hub will connect (hold on to your britches) the HHS (entitlement qualification and medical records) with the Social Security Administration (your unique identifier number), the IRS (your income, and employment status), the Department of Homeland Security, (your citizenship and international travel information), Department of Justice (your criminal history), the Veterans Administration (military service information), Office of Personnel Management (information on government employees), the Department of Defense (unit and deployment history), and the Peace Corps (domestic and foreign service assignments.) Plus the hub will tap into state databases to confirm residency and Medicaid criteria. Everyone will be required by law or regulation to report changes in marital status, changes in income, hours worked, changes in employer, moves to a new state, a change in insurance plans, and changes in your criminal history. You can see a schematic here of Obama’s tentacular intrusiveness which his data hub represents.

Think of the hub as a busy four-way intersection through which all traffic must flow to get anywhere and a record is kept of everyone and everything that passes through it.

In a column in USA Today, University of Minnesota professor and Manhattan Institute scholar Stephen T. Parente said “The federal government is planning to quietly enact what could be the largest consolidation of personal data in the history of the republic … when the constantly updated information is combined in a central data hub, the potential for abuse is staggering.”

Edward Snowden showed us how much confidence we should have in the federal government’s ability to keep confidential information confidential. Last year a hacker accessed 3.6 million data base records in South Carolina with Social Security numbers and bank account data. 

A recent Government Accountability Office audit said weaknesses in IRS security systems "continue to jeopardize the confidentiality, integrity, and availability of the financial and sensitive taxpayer information." Another audit discovered that the IRS unintentionally exposed confidential information on thousands of taxpayers in 2009 and 2010. The next year the Social Security Administration did the same thing on a larger scale.

But what do you expect from a government that can’t competently run a postal service or Amtrak profitably? The consolidation of all this data will make it the most attractive hacker target in the world. If the feds can’t prevent inadvertent data releases from independent agency servers, does anyone really believe they can safeguard this data base?

Willie Sutton said the reason he robbed banks was because that was where the money was kept. A hub/database like the one Obama and Sebelius are creating is like Willie Sutton’s banks. Why would thieves look anywhere other than the ObamaCare data hub to steal identities, commit credit fraud, or know if you have assets worth stealing. With only one place to look and a “winner take all” payoff, thieves may team up and work together. Computer hacking technology should become a growth industry.

After failing to master the expertise to run the postal service and a railroad, the government is now going to reform healthcare, bring down costs, and collect a ton of information in the process. Assuming the data could be kept safe from thieves – which I wouldn’t assume for a heartbeat – what’s to keep it from being abused by the government?

Us??? Not us? (wink, wink.) “Mr. Throckmorton, I see from our computer records that you’ve voted Republican in the last seven elections. Our experts have denied your life-saving operation at this time. Please check back with us after the next election.” (Of course, it cuts both ways. The Republicans will regain the White House at some point and may also have control of both houses of Congress.)

Memo to those who believe abuse won’t happen: Did you read about Sebelius soliciting “contributions” from the industry she regulates … money which would be turned over to ObamaCare supporters to drum up support for the unpopular law and encourage people to participate in the exchanges? Do you remember the Obama and Sebelius goons inviting citizens to report their fellow citizens who hated ObamaCare? “If you get an email or see something on the Web about health insurance reform that seems fishy, send it to flag@whitehouse.gov,” they urged. Only ideologues who deny First Amendment protection would call for citizens to do such a thing.

In combination with data collected by NSA spying what would not be known about American lives?

Not to worry, says the Obama administration. “The hub will not store consumer information, but will securely transmit data between state and federal systems to verify consumer application information,” or so it claims in an online fact sheet. The Center for Consumer Information & Insurance Oversight at the Centers for Medicare & Medicaid Services says hey, no sweat. The information we collect will not be stored, and privacy is the “highest priority.”

But a regulatory notice that Obama’s boys and girls filed early this year tells a different story.

That filing describes a new "system of records" that will store names, birth dates, Social Security numbers, taxpayer status, gender, ethnicity, email addresses, telephone numbers on the millions of people expected to apply for coverage at the ObamaCare exchanges, as well as "tax return information from the IRS, income information from the Social Security Administration, and financial information from other third-party sources." Data from businesses that buy insurance on an exchange, including a "list of qualified employees and their tax ID numbers," will be kept on file for 10 years. That’s a lot of information not to collect and not store.

Check out the online filing certificate and you’ll see the federal government can disclose any information it collects "without the consent of the individual" to almost anyone – "agency contractors, consultants, or grantees" who "need to have access to the records" to help run ObamaCare, as well as law enforcement officials to "investigate potential fraud." Who did they leave out?

Republican lawmakers have asked Kathleen Sebelius how HHS and other sources of data will protect sensitive information but she hasn’t gotten back to them with an answer. She’s really busy, you know.

I’ve often said the worst idea that government ever conceived was the central sewage system. When property owners had to get rid of their waste relying on a septic tank the size of an automobile, waste disposal was a manageable problem. When some bright guy said, “Hey, let’s consolidate all of this into a central sewage system,” you now had a big disposal mess – preprocessing, sedimentation ponds, effluent disposal, and on, and on – all caused by consolidation.

One thing leads to another in most things. In order for ObamaCare to function it requires an invasion of privacy on a grand scale that would not be needed if there were no ObamaCare. The data hub became necessary to enable agency computers to “talk” to each other – something that’s never been attempted. Collecting the data puts it at risk for exposure, if not theft. Storing the data makes it attractive to every hacker in the galaxy.  None of this would have been necessary without ObamaCare. All of this is headed toward a disaster. Even the author of ObamaCare, Max Baucus (D-MT) says it’s a train wreck waiting to happen. And when it happens, it will be like the walls on a sewage retention pond collapsing and data will run everywhere.

Representative Diane Black (R-TN), a member of the House Oversight Committee complained that ObamaCare isn’t close to being at a point that allows it to be implemented. She is the author of H.R. 2022, Stopping Government Abuse of Taxpayer Information Act, which halts the implementation of ObamaCare until all government agencies with access to the Federal Data Services Hub certify under penalty of perjury that taxpayer information will not be used to target individuals based on their beliefs.

Black’s bill might get out of committee. It might even be brought to the floor of the House for a full vote. But it has no chance in the Senate. If it did, Obama wouldn’t sign it. Her effort is symbolic and isn’t likely to draw a lot of attention.

Max Baucus paid for his perfidy by leaving the Senate. He’s in a tough race in Montana and his authorship of ObamaCare has cost him with voters.

Last week, Obama announced the delay of the ObamaCare mandate until 2015. In one sense, this was an admission that the vast apparatus needed wasn’t in place – which was helped when 30 Republican governors refused to set up exchanges This has set the stage for legal challenges regarding what Obama can do to create the exchanges and disburse subsidies.

In a larger sense, Obama made a shrewd political move. With the 2014 mid-year elections heating up, the last thing the Democrats want is for voters to experience what was in store for them had ObamaCare been allowed to proceed during an election year. They hope there is an outside chance Democrats could win back the House, giving Obama free rein to run amok the last two years of his administration. It’s more likely that the Republicans will retain the House and an outside chance of taking the Senate. Even gaining seats would slow down Harry Reid’s Senate agenda.

The execution is delayed, not pardoned. Those full time employees whose hours would have been cut to avoid ObamaCare – about 3.2 million – get a reprieve. Good news for fast food and theater employees. Small companies that would have been forced into layoffs to escape the 50-employee cutoff for ObamaCare compliance can delay for a year. ObamaCare would have hurt the economic recovery. Now that’s it’s delayed, the economy may improve and Obama can beat his breast and crow that his policies are working.

So far, it seems like Obama wins by delaying implementation. But unless Republicans are catatonic, which I often think they are, they might want to insist that the law move forward – unless, of course, they want to cede both the executive and legislative functions to the White House and go home. The law, which John Roberts so cleverly kept resuscitating, states that the employer mandate penalties under IRC Section 4980H “shall apply to months beginning after December 31, 2013.” Unless that’s repealed, it must be enforced.

Last time I checked, the President can’t repeal laws, and he can’t enforce the ones he likes and delay others if that serves his needs.

The Last Full Measure: 150 Years Later

One hundred and fifty years ago this past week a battle was fought in the Pennsylvania market town of Gettysburg that would become a seminal event within the seminal event of the 19th century – the American Civil War.

The battle was fought on July 1, 2, and 3 when elements of the Confederate and Union armies collided near the village as they were actively looking for each other. Lee had taken his army north for the second time because he couldn’t supply an army confined in a static defensive mode in Northern Virginia. Although his first foray into the north had led to a disastrous battle near Antietam Creek that cost Lee a quarter of his army, he hoped to smash the Union Army on this try. Lincoln, pressed hard by a growing number who were growing tired of the war’s toll, would have to sue for peace if Lee succeeded.

I’ve blogged about the Gettysburg battle in a previous post, most particularly the fighting on July 3, 1863 whose highlight was the infamous “Pickett’s Charge.” The details of the three-day battle are in that blog for all who care to read it.

For all its violence, something about this battle, among all others fought during the war, is mesmerizing. I have been everywhere on the Gettysburg battlefield many times – first as a child with my parents and several times afterward during my college years. As an infant I was scheduled to ride with my great-great-grandfather at Gettysburg in the last reunion of Civil War vets, although he had fought exclusively with General Forrest in Tennessee, Mississippi, and Alabama and was never under Lee’s command. But “Grandpa” Doggett fell ill, missed the reunion, and died the following year.

Twenty-five years have now passed since my last visit when my wife and I spent a full day on the battlefield during the week before the 125th anniversary of the battle. We practically had the park to ourselves as if it had been reserved for a private showing. I “rented” one of the battlefield historians to join us in our car for a tour of the park because I wanted someone with me who knew more than I about what had happened there during those three awful days in July 125 years previously.

The contemporaries of the battle did not intend its story to be lost to the ages. A third of all photographs taken during the war were taken at Gettysburg. Fourteen hundred monuments dot the battlefield landscape to mark where Victorian era men struggled with a bravery that was characteristic of their time to accomplish a purpose that none really understood. History has been kind to some and harsh to others who fought there. Joshua Lawrence Chamberlain, a Professor of Rhetoric and Languages and classmate of Harriett Beecher Stowe, is among those favorably treated by history. With no military training, he commanded the 20th Maine Regiment at Gettysburg and is credited with holding his position on Little Round Top against the fearsome Oates Alabama Regiment. For this feat he was awarded one of the 62 Medals of Honor – a recognition initially created for Gettysburg heroes. Chamberlain would rise from Lt. Colonel to General by war’s end and later become governor of Maine, helped in no small measure by his considerable self-promotion.

One treated harshly by history is Confederate General James Longstreet, who must be counted among the few truly intuitive commanders on either side of the war. Longstreet’s instinct for a battlefield equaled if not exceeded Lee’s, and he and Stonewall Jackson were considered Lee’s ablest lieutenants. Longstreet, however, made the “mistake” of telling Lee that the Union fortress at Gettysburg was unassailable and counseled his commander to move the Confederate Army eastward to get between Washington City and the Meade’s forces. That would compel Meade to abandon the hill fortifications and give Lee the defensive battle he originally sought. Instead, Lee’s answer was Pickett’s disastrous assault against the middle of the Union line, costing Pickett 7,500 men – half of his assault force.

Longstreet was born on a cotton plantation near modern-day Gainesville, Georgia, 40 miles north of Atlanta, although it was then part of South Carolina. He was not, therefore, part of the Virginia aristocracy that peppered the command ranks of the Confederate Army. Joining the Republican Party and serving in the Grant administration after the war contributed to his fall from grace among history’s “Lost Cause” revisionists (mostly Virginians) who charged him with culpable disobedience at Gettysburg and a main factor in the South’s loss of the war.

The Battle of Gettysburg has been labeled the turning point of the war. It was not. Vicksburg fell the day after the battle at Gettysburg ended, giving a rising reputation to its Union victor, General U.S. Grant. Grant would ultimately be called east to face Lee, replacing Meade and solving once and for all Lincoln’s search for a general who would fight.

General William Tecumseh Sherman, who at one time had been Grant’s superior and became his chief lieutenant in the Vicksburg campaign, would take over the Union command in Tennessee where he faced General Braxton Bragg, one of the most incompetent Confederate commanders in the war. In the aftermath of the Confederate victory at Chickamauga, General Nathan Bedford Forrest became so infuriated with Bragg – his boss – and the failure to follow up the enemy escaping toward Chattanooga that he threatened Bragg with death if he ever crossed Forrest’s path again. Jefferson Davis wisely sent Forrest as far away from Chattanooga as possible, where Forrest gave the Union Army as much grief as possible in Mississippi until the end of the war.

The Vicksburg victory released Grant to fight Lee and released Sherman against Bragg, which ultimately led to the fall of Chattanooga, Atlanta, and the March to the Sea – the “war is hell” scorched earth campaign that collapsed resistance in the Deep South. So we see Vicksburg as pivotal as Gettysburg in determining the South’s fate in the war.

It’s true that Lee’s loss of a third of his fighting force in Gettysburg forced him back to Virginia where a shortage of men and supplies would never again allow more aggressive campaigning than defense. But Lee gave as good as he got for the next 22 months in the battles of the Wilderness, Spotsylvania, and Cold Harbor until he was finally cornered near Appomattox, Virginia in April 1865.

One thing leads to another in life and war, filling both with “what ifs” and “if onlys.” Gettysburg was “a” turning point but not “the” turning point of the war. If the Greeks had lost the battles of Marathon or Salamis to the Persians five centuries before the birth of Christ, the west would be speaking Farsi today instead of their native western languages. If the US Navy had lost the Battle of Midway in June 1942, Americans would likely be speaking Japanese today. It’s unlikely that the US Navy and Marines could have won the decisive Guadalcanal Campaign and their first offensive battle, which started the march toward the Japanese home islands and victory.

The combined Gettysburg losses in killed, wounded, and missing for both sides were about 50,000. Civilians were left to care for the wounded and dying and clean up the carnage left behind. Some wrote a record of what they saw:

… And then, these scenes themselves, who can adequately describe them? Houses demolished, fences destroyed, tall forest trees mowed down like so many stalks of hemp; artillery wagons crushed, broken muskets scattered in every direction, unused cartridges in immense numbers, balls of all kinds, ramrods and bayonets, bits of clothing, belts, gloves, knapsacks, letters in great quantities all lying promiscuously on the field; dead horses in great numbers, some torn almost asunder by cannon balls, some pierced in the side by grape shot, and others with their legs completely shot away; some noble chargers apparently kneeling in death, their necks, crested with flowing manes, gracefully arched, as if still proud of the riders on their backs.

And then many of the human dead, whose mutilated bodies, still unburied, were lying around in all positions. Some with their hands gently folded over on their breasts, others reclining gracefully on their elbows, and others still leaning against trees, stumps or stones, as if wrapped in the arms of sleep, and given over to sweet dreams.

Although given temporary burial after the battle, a permanent cemetery was conceived and constructed as the final resting place for those who died at Gettysburg. Lincoln was invited to make “appropriate remarks” to dedicate the cemetery, not the battlefield as commonly understood. Lincoln was not the keynote speaker for the dedication service, however. Edward Everett, a noted orator of the day, had been chosen for that task. And orate he did – for two hours, for almost 14,000 words.

When he had finished his speech, the ceremony passed to Lincoln, who in less than three minutes and 280 words delivered what has come to be known as the Gettysburg Address:

Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal.

Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battlefield of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.

But in a larger sense, we cannot dedicate – we cannot consecrate – we cannot hallow – this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember, what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us – that from these honored dead we may take increased devotion to that cause for which they gave the last full measure of devotion – that we here highly resolve that these dead shall not have died in vain – that this nation, under God, shall have a new birth of freedom – and that government of the people, by the people, for the people, shall not perish from the earth.

To understand what Lincoln really meant that November day in 1863, his words must be studied. They can’t simply be read. I will not parse its phrases. Indeed, Garry Wills has done a wonderful job of that in his 1992 book Lincoln at Gettysburg: The Words that Remade America.

From the very first paragraph, however, Lincoln performs what Wills calls “one of the most daring acts of open-air sleight of hand ever witnessed by the unsuspecting. Everyone in that vast throng of thousands was having his or her intellectual pocket picked.” The concept of the Union of which Lincoln spoke and the one held by the audience was as different as night and day.

If you count back 87 years from 1863, you come to 1776 – the year of the Declaration of Independence. Our fathers did not bring forth a new nation in 1776. They declared independent colonies to be free of British rule – and no more. There was no nation. There were no states. While Rhode Island was the last colony to ratify the Constitution in 1790 and the Bill of Rights was ratified the next year, did a new nation exist at that point? Of course not. As I’ve said many times, the Founders were deeply suspicious of a central government and for a long time refused to support it financially. A representative to the Constitutional Convention or the colonial ratification conventions thought of himself as a Virginia man or a New Hampshire man. No one thought of themselves as an American. Their new Constitution “united” the states in name only.

That the American Civil War was fought to abolish slavery is part of the mythology fobbed today as historical fact. At its core, the war was a clash of two economic systems, one a people-intensive agrarian society and the other a capital-intensive industrial society. There were slaveholders on both sides of this conflict. Four Northern states that didn’t secede from the Union were slave states. Many in the Union officer corps owned slaves or were sympathetic to its institution.

Lincoln’s views on slavery were themselves ambiguous. In 1858 he said, "I confess myself as belonging to that class in the country who contemplate slavery as a moral, social, and political evil ... and look hopefully to the time when as a wrong it may come to an end." Yet the next year he told a Cincinnati audience, “I now assure you, that I neither ... had, nor have, nor ever had, any purpose in any way of interfering with the institution...[of slavery]." Once the war was underway, he told newspaper publisher Horace Greeley, "My paramount object in this struggle is to save the Union, and is not either to save or destroy slavery." His Emancipation Proclamation was not universal. It was directed only to the slaves in the states in rebellion

And there you have it. The subtext of Lincoln’s Gettysburg address was his concept of what union meant. Slavery was not mentioned or inferred. Lincoln believed the United States was an indivisible union that could not be broken by secession. In contrast few, if any, of people in the North or South held that view in 1860. Their views had changed little from those of the Founders regarding the power of central government and the meaning of union.

At the beginning of the war the federal government was small and marginally significant. Lincoln saw a more powerful role for the federal government. Where Lincoln saw absolute indivisibility, the people saw a loose confederation of states. When Lee was offered command of the Union Army, he refused it. Lee saw himself as a Virginia man. His state came first; the Union second. Longstreet was later impugned by the Virginia revisionists because he was not a Virginia man. State loyalties ran strong in the near-century before the war.

There was no small concern in the debates leading up to the final eruption at Ft. Sumter that the sovereignty of southern states could be threatened by an overreaching central government. If Congress exceeded the powers enumerated to it on the slavery issue, what would prevent Congress or the President from consolidating even more power from the states?

And in fact, with the fall of Ft. Sumter, Lincoln blockaded Southern ports – an act of war taken without congressional consent. Lincoln raised an army for a three-year enlistment when the Constitution says only Congress can raise an army. Lincoln suspended habeas corpus, declared martial law, arrested civilians for trial by illegal military tribunals, locked up 13 of Maryland’s legislators without trial to prevent their state’s secession, and essentially used the war as an excuse to consolidate presidential power and expand the influence of the federal government.

When Chief Justice Taney protested that Lincoln was going beyond the Constitution in the exercise of federal power, Lincoln ignored him. The Court has no way to enforce itself, relying on the Executive branch to enforce the Court or abide by its rulings. Nixon almost created a constitutional crisis by ignoring a court order to turn over the White House tapes in the Watergate scandal. He waited six days before he compiled. What if he hadn’t?

We’ve recently seen Proposition 8 – the will of the citizens of California to modify their Constitution through a lawful vote – overturned because their Governor and Attorney General refused to defend it against challenges that ultimately were appealed to the Supreme Court. Both the Governor and Attorney General had sworn to uphold the state’s Constitution of which Proposition 8 was a part. What happens when the political leaders of a state refuse to fulfill their responsibilities?

By ignoring Judge Taney, Lincoln was jeopardizing the balance of powers and the federal systems of checks and balances. That was a dangerous precedent.

The Civil War ended with more power invested in the federal government than ever before in the history of the Republic. Lincoln had said he would relinquish it when the war was ended. He didn’t live long enough at war’s end to prove true to his word, but his successor, Andrew Johnson, disassembled the wartime power structure. The Presidents who followed have reconsolidated it.

Today the American people are as divided as they were on the eve of the Civil War. But instead of a president who was fundamentally a uniter in 1860, we have one in 2008 who is fundamentally a divider. His respect for the Constitution is cavalier and his willful attempts to by-pass Congress in governing is standard operating procedure. The vast regulatory machinery he has created is replacing elective government. A bill no longer must run the political gauntlet to become law. It’s simply created by an unelected bureaucrat in the form of a regulation that becomes as binding as any law.

What has been happening in presidential power over the last 75 years should concern us all. In a letter to Bishop Mandell Creighton in 1887, Lord Acton expressed a warning about the tendency of power to consolidate – ultimately in the hands of one person. It happened in the Roman republic. It is happening in the American republic.

Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men.

Continuing the Fight Against ObamaCare

“In THAT direction,” the Cheshire Cat said, waving its right paw round, “lives a Hatter: and in THAT direction,” waving the other paw, “lives a March Hare. Visit either you like. They're both mad.”

“But I don't want to go among mad people,” Alice remarked.

“Oh, you can't help that,” said the Cat: “we're all mad here. I'm mad. You're mad.”

“How do you know I'm mad?” said Alice.

“You must be,” said the Cat, “or you wouldn't have come here.”

A year ago this month I wrote a two-part blog dissecting the Supreme Court decision that kept ObamaCare alive, thanks to the byzantine legal reasoning of Chief Justice John Roberts.

In Part I of the blog, appropriately called RobertsCare, I explained that the Founders had a good reason for requiring revenue bills that imposed new taxes should originate in the House of Representatives, not the Senate whose members had six-year terms. House members were supposedly closer to the people than the Senate or President because they had to stand for reelection every two years. The Founders believed the desire to retain their office would disincline House members to appropriate only taxes to operate a minimal federal government.

The legislation that gave birth to ObamaCare and 21 new taxes, however, originated in the Senate, not the House. In flagrant violation of the Constitution, a House bill whose stated purpose was to facilitate home ownership by members of the Armed Forces was stripped of its contents (except for the opening sentence) by Harry Reid when it was sent over to the Senate. The carcass was then stuffed with 2,700 pages of the laughably-named Patient Protection and Affordable Care Act authored by Max Baucus. As the provisions of the law now labeled ObamaCare are beginning to be implemented, it is patently obvious that patients will neither be protected nor provided affordable care.

The key to making the ObamaCare engine run was a mandate compelling everyone to buy insurance presumably from a private vendor, and if that were not possible, the federal government would become the vendor. Never in the history of the Republic have its free citizens been compelled to buy something simply because they existed. If we failed to buy health insurance, we would be penalized by an all-powerful government.

As I pointed out in last year’s blog a “do this or else” provision in law constitutes a police power. And police powers are reserved to sovereign states, not the federal government. Therefore, to get around the arrogation of police power prohibition, Congress has historically relied on the Commerce Clause, intruding even into intrastate commerce (not just interstate commerce) to regulate citizen activity. It’s one thing to regulate activity. It’s quite another thing to regulate non-activity. Penalizing the failure to buy health insurance was a unique regulation of non-activity – a tough sell for employing the Commerce Clause.

As a consequence, if John Roberts and his four new best friends in the liberal wing of the Court were to save ObamaCare, the failure to buy health insurance couldn’t be “do this or else” coercion and it couldn’t rely on the Commerce Clause to regulate non-activity.

Roberts and his new best friends, therefore, had to find a way to call the fine for failing to buy insurance a tax. However, calling it a tax posed a problem of its own making because, as I pointed out in Part II of the blog, The Continuing Saga, the ObamaCare legislation uses the word “penalty” 18 times in connection with a failure to buy insurance. A penalty is not a tax. It’s the consequence of the exercise of police power.

Furthermore, a technical obstacle called the Anti-Injunction Act, a law harking back to 1793, prohibits legal challenges to a tax until the tax in question has been collected. If the fine was called a tax, it would by-pass the Commerce Clause and fall under the right of Congress to levy taxes (i.e. the House, not the Senate.) But a tax challenge couldn’t be adjudicated until 2014 when the mandate was scheduled to take effect.

So is the mandate fine a tax or a penalty? The Court unanimously agreed the mandate fine is a penalty. That is what the law called it 18 times, and allowing it to be a penalty instead of a tax permitted ObamaCare to be settled by the Supreme Court before 2014.

But then, in a logical sleight of hand, Roberts and friends said that for the purposes of imposing the mandate, Congress had the right to tax non-compliance. In other words, notwithstanding what Congress actually did or had in mind to do in passing ObamaCare, it could have enforced the mandate with a tax. It obviously chose not to call it a tax because of the 2010 elections. But Roberts and his merry band of liberals reasoned that, since the fine was collected by the IRS, the enforcement of the mandate was pay (a tax) or play (buy insurance.) This effectively rewrote the ObamaCare law so it could survive.

The third issue before the Court last year was the legality of the Medicaid expansion.  ObamaCare ordered states to expand the reach of their Medicaid programs or else face the loss of all Medicaid payments from the federal to the state governments. The Court decided this was an unconstitutional exercise of police power and the law could not withhold existing Medicaid payments as leverage to force expansion.

This brought the Court to the fourth issue before it – severability. Most contracts and laws have a provision in them that says if any part is found unenforceable, it does not cancel the entire contract or law. ObamaCare, in its haste to be enacted, failed to insert a severability clause. It therefore fell to the Court to decide if the illegality of the expansion of the Medicaid program dealt a fatal blow to the entire law. This was significant because, among other things, the Medicaid expansion would bring more people into eligibility – those earning up to 400% of the federal poverty level – and the states were required to create insurance exchanges to allow individuals to buy the mandated insurance and receive subsidies to the extent that they couldn’t pay the mandated insurance premiums.

When the Court disallowed the Medicaid expansion on states, states had the option to expand Medicaid and receive federal assistance or they could opt out. The Court should have considered two consequent issues. It should have determined whether or not ObamaCare, absent the Medicaid expansion, could operate as Congress had envisioned. And the Court should have determined whether or not Congress would have enacted any or most of ObamaCare without an expansion of Medicaid.

The Roberts-led five failed to do either. Avoiding the severability wounds altogether, the Roberts wing effectively rewrote another piece of the law by deciding that the Court did not believe Congress wanted the law to fail if some states opted out of the Medicaid expansion and thus failed to create insurance exchanges. Absent the Court’s reconstruction – essentially divining the mind of Congress – ObamaCare would have been stricken as law.

As a practical matter, the states that opt out of the Medicaid expansion are subsidizing those that opt in by virtue of the taxes their citizens pay to the federal government. Sixty percent of the 50 states have decided not to build insurance exchanges because of the ongoing costs of operating them, which state residents would have to pay in additional state taxes. The federal government is not budgeted to build exchanges, and with the Republicans in control of the House, it isn’t likely to become budgeted to build exchanges. The federal government is not budgeted to operate exchanges if somehow it found the means to build them.

The Court’s failure to take all of this into consideration in a severability analysis now assures hundreds of billions of dollars will be spent jumping halfway over a ditch because the means to get all the way over isn’t there.

Moreover, young people whose insurance dollars are desperately needed to subsidize the claims of older insureds aren’t signing up, choosing instead to pay the relatively inexpensive fines. Companies are reducing the hours of work for employees to make them ineligible for coverage under ObamaCare. Small businesses are canceling expansion plans to keep the number of employees under the ObamaCare minimum. Other employers are opting out by choosing to pay the fines for non-coverage, which are considerably less than insurance premiums. Because of the ridiculous coverage requirements of ObamaCare, insurance premiums have increased further exacerbating the opt out problems. ObamaCare is neither affordable nor protective.

The country is headed for a fiscal disaster not only because of the failure of John Roberts to be a dispassionate judge of the law instead of a political hack, but also because the law, which passed without a single Republican vote, was a monstrosity conceived by politicians who were clueless about the way the real world works. The Democrats have succeeded only in destabilizing one-seventh of the American economy to “fix” a system in which 80% was working fine.

Senator Mike Lee (R-UT) has written a 74-page e-book entitled Why John Roberts Was Wrong About Healthcare: A Conservative Critique of the ObamaCare Ruling. It’s worth reading. He has introduced in the Senate S. 560, which says what the ObamaCare law says 18 times: the mandate penalty is a penalty, not a tax.

If Lee’s bill were to pass, the mandate would become immediately unconstitutional as the Roberts Renegades acknowledged. ObamaCare would not survive without it. If Lee’s bill fails to pass a Senate vote, those who voted against S. 560 would be on record for having voted for a tax increase.

Lee’s bill has been referred to the Senate Finance Committee whose Chairman, Max Baucus (D-MT) was the author of ObamaCare. And Baucus has referred it to the Healthcare Subcommittee, whose Chairman is Senator Jay Rockefeller (D-WV). The changes that Lee’s bill will see the light of day are slim to none. Until low information voters are run over by the cost of ObamaCare compliance, they will take no interest. If you are interested in tracking Lee’s bill this is the link.

In the meantime, the Attorney General for Oklahoma, Scott Pruitt, is working on a clever way to defeat ObamaCare. Unfortunately, he is going it alone because no state has joined him in the same way they teamed up to overturn.

Pruitt is challenging these issues: subsidies are made available to purchase insurance and penalties are imposed on those who don’t buy insurance and employers who don’t provide it. Employers are taxed when employees use tax credits. Individuals are taxed when the credit is made available to them. Tax credits only apply to those using them on state-created exchanges. The federal government may create state exchanges in holdout states, but the feds have no authority to offer subsidies or impose taxes on them.

The ObamaCare Democrats never envisioned that 33 states would refuse to build exchanges. Oklahoma is one of them. If a state’s residents aren’t eligible for subsidies, employers can’t be taxed as a penalty. This wasn’t an oversight. The law was written to deny subsidies to states that refuse to build exchanges, thinking it would be a big enough stick to prevent the dropout rate that has occurred.

The ObamaCare enforcers are proceeding as if they have the legal right to offer subsidies and impose penalties in states that have opted out of the exchange ropa-dope. But the law doesn’t give that right. Nevertheless, Holder’s Justice Department and the IRS are pretending they have grounds for offering subsidies and impose penalties – er, sorry, taxes.

Small businesses and individual taxpayers have joined Pruitt v. Sebelius to challenge the authority of the IRS absent state-created exchanges. It is shameful that Republican governors have caved and bought into the Siren’s Song of ObamaCare. Just wait until the Medicaid assistance from Washington to states stop. Then what? Those turncoat governors include Brewer of Arizona, Scott of Florida, Kasich of Ohio, and Christie of New Jersey. Hopefully, their careers in the Republican Party are over.

Notwithstanding the Roberts Magic Show last year, a Gallup poll this week showed 72% of all Americans believe ObamaCare is unconstitutional, which includes a whopping 56% of Democrats who share that view compared to 94% of Republicans.

Washington Republicans may not have the power that Democrats have because, in the words of John Boehner, hopefully the last of the Republican dinosaurs, Republicans control only half of a third of the governing machinery. Boehner is also the person who, after the reelection of Obama, declared ObamaCare “the law of the land.” But 30 Republican governors lead 50 states and those governors, Republican attorneys general, and state legislators should be presenting a united front to fight ObamaCare.

Helping Scott Pruitt fight the lawlessness that is the Obama administration would be a good place to start.

Privacy versus Security

Americans live in open society. They are free to come and go as they please in the assurance that their movements are not regulated and their interactions are not scrutinized by a government whose sole reason for existing is to serve them. That is why those in government at all levels are rightly called public servants. Their role is to serve and their service is to be public in order to be visibly accountable to those they serve. In contrast, society is the sum of private citizens with emphasis on "private.".

In a democratic republic, private citizens should know everything about their public servants, whereas, public servants should know very little about private citizens.

At least that’s the way it is supposed to work in theory.

In practice, the openness of open society is easily exploited by its enemies. At some point openness forces society to decide how much of its privacy and liberty it is willing to forego in order to secure itself from enemies. If asked, society’s willingness to trade off liberty and privacy for security would surely vary from citizen to citizen. But a universal solution must be agreeably imposed on all of society by its government, and there are no opt-outs. What is society to do, then, when government exceeds the privacy bounds granted it – arguably to protect them?

That question is at the core of the eruption that occurred last week when it was revealed by a reporter for the UK newspaper, The Guardian, that the three largest American phone companies had been ordered by a secret court to furnish the National Security Agency the records on millions of private citizens. The mission of the NSA is foreign intelligence, not domestic. Domestic intelligence is the purview of the FBI. Yet we learn that the NSA is gathering intelligence on American soil about the activities of American citizens.

It was also revealed that NSA vacuums information from the major Internet companies, which carry emails and host website visits, and it ingests information from the major credit card issuers about transactions by their users.

Thus we have the federal government gathering virtually all the important information on private citizen behavior without the constitutional due process notification that it’s being done. We are to be assured, of course, by the defenders of these practices that emails are not read and no eavesdropping on telephone calls occurs. The only data of interest, we’re told, is so-called metadata – the email and phone content “wrappers” – i.e. who phoned whom, their locations, the duration and time of a call, and the email sender, recipient, and date. Allegedly.

But it’s worth noting that recently metadata was used by the FBI to identify the IP addresses of computers in a hotel business center. The computers were the source of threatening emails sent to a Tampa socialite. Agents got the names of people who had access to the business center at the time of the emails. That led them to Paula Broadwell, whose email traffic was thereafter monitored by the FBI under a court order. Her emails revealed that Broadwell and retired General David Petraeus were engaged in an extramarital affair under the cover of her work to write his biography. His career as Director of the CIA ended shortly afterward. No charges were filed and the case was dropped. But the snooping had consequences, which we’ve since learned.

If only metadata wrappers are being collected, why then did Director of National Intelligence James Clapper recently defend the surveillance program by saying it was supervised by a "robust legal regime" and that data can only "be queried when there is a reasonable suspicion, based on specific facts, and the particular basis for the query is associated with a foreign terrorist organization." An empty wrapper has no contents to be “queried.”

James Sensenbrenner, one of the authors of The Patriot Act, says the NSA surveillance has far exceeded the original intent of the lawmakers. The statute was intended to allow investigators to gain access to information that was relevant to an authorized investigation – something that does not justify the seizure of millions of phone, email, and Internet records of citizens suspected of no crime.

There is also a question of Fourth Amendment violations, which prohibits unwarranted search and seizure. Yet, the Supreme Court once again showed how out of touch it was when it ruled in Smith v. Maryland that privacy is foregone (and so is Fourth Amendment protection) when a person dials a phone, voluntarily giving the number called to a third party carrier so it can connect the call and bill for it.

That reasoning is ridiculous. In the digital age all of us reveal a lot of information when we make a cell phone call, send a text or email message, surf the Internet, make online purchases, and use our credit cards. In other words, third parties end up with a considerable amount of information about us. But we intend that information to remain with the third party and to be used solely for the purpose it was given. It is not to be shared, even discriminately, with others without our permission.

Today’s digital transactions are a faster and more convenient way to conduct modern transactions than the way they were conducted 30 years ago when their Fourth Amendment protection in paper form was indisputable. Are we to accept that the loss of privacy is the inevitable tradeoff for modern convenience? I don’t think so.

Notwithstanding the bone-headed thought process of the Supreme Court, the Fourth Amendment became part of the Bill of Rights in 1790 to prevent the government from invading our privacy to learn things about us without our permission. If information is in hard copy in my home office file cabinet or on my hard drive, the government can’t gain access to it without probable cause and (hopefully) stringent justification for a search warrant. The fact that the file cabinet or hard drive is somewhere other than my home should not make it any more accessible to government snooping.

Charles C.W. Cooke, a British national, has written an excellent essay for the National Review Online detailing what happened in his country as civil rights and privacy was chipped away a bit at a time after World War I all in the name of security. The article is entitled Liberty in the Tentacular State and I urge readers to click on this link to access and read it. Among many useful tidbits showing how the US is going down the same path as his country, he also mentions that …

The FAA predicts that by the end of the decade, 30,000 drones will patrol the air, many equipped with high-definition cameras that can recognize a face from five miles away … If you are concerned about the government’s collecting metadata, imagine what flying squads of law-enforcement vehicles will do.

I resent the Big Brother cameras on traffic lights. I know, I know. No cause for concern unless I run a red light, something I’d not likely do unless it’s 4 am and there’s no traffic to be seen in any direction. Let’s just admit to their real purpose. Revenue generation. But could they be used for untoward purposes? You bet they could. With enough of them, the vehicular traffic of a city could be snooped on.

There are traffic cameras along the interstate as I drive home. Allegedly their purpose is traffic management. Surveillance cameras in parking lots and under the eaves of buildings stare down at me ostensibly for safety. Speed monitors are becoming ubiquitous in neighborhoods to light up flashing warnings that I’m exceeding the speed limit. Like a bunch of compliant cows we’ve come to tolerate the most intimate groping of the TSA, told that genital examination is the only way to assure flight safety. Cooke is correct. Like his country, Americans are tolerating the loss of privacy bit by bit, slowly reversing roles with the state. In time it will be the citizens who are servants and the state will become the one served.

Last week amid the mounting backlash from yet another example of how cheaply Obama holds civil rights, he vented his frustration. In loco parentis he whined, "Nobody is listening to your phone calls ... You can't have 100% security, and also then have 100% privacy and zero inconvenience."

This is classic Obama-speak. His is a binary world of false choices in which it’s this or that but not both. And, of course, the “this” and “that” are always at the extremes. Who among us really expects “100% security” or “100% privacy”? Those are standard issue “straw men” which Obama uses so often to defend his infallible decisions. As for “zero inconvenience” I’m willing to take off my shoes even though I believe it’s idiotic, but I don’t want some TSA creep’s hand near my crotch.

Obama concluded his pontification by saying, “If people can’t trust not only the executive branch but also don’t trust Congress and don’t trust federal judges to make sure that we’re abiding by the Constitution, due process, and rule of law, then we’re going to have some problems here.” You mean problems like IRS audit abuses, the DOJ “no contact” investigation of Fox News reporter James Rosen, and the AP document seizures – all in violation of First Amendment rights?

Our trust of government was certainly not helped when Senator Ron Wyden (D-OR) asked Director James Clapper if the NSA collects "any type of data at all on millions or hundreds of millions of Americans?" and Clapper responded, "No, sir." That was a lie under oath. Will Clapper pay a price for it? Nope.

Senator Mark Kirk (R-IL) questioned Attorney General Eric Holder in one of his endless appearances before congressional committees, this one the Senate Appropriations Committee. Holder was asked if the NSA spied on members of Congress.

Mr. Attorney General, I want to take you to the Verizon scandal and – which I understand takes us to possibly monitoring up to 120 million calls. You know, when government bureaucrats are sloppy, they’re usually really sloppy. Want to just ask, could you assure to us that no phone inside the Capitol were monitored of members of Congress that would give a future executive branch, if they started pulling this kind of thing off, would give them unique leverage over the legislature?

Holder evaded, “With all due respect, Senator, I don’t think this is an appropriate setting for me to discuss that issue. I’d be more than glad to come back in an appropriate setting to discuss the issues that you have raised."

Kirk formerly was a naval intelligence officer. So he put the squeeze on Holder saying, “I would interrupt you and say the correct answer would be to say no, we stayed within our lane, and I’m assuring you we did not spy on members of Congress.” After all, if NSA hadn’t spied on Congress, it’s easy enough to say so. If NSA had spied, a secret hearing would be needed to explain why.

The leak that blew the lid off of the NSA dragnet came from a 29-year old contractor, Edward Snowden, who said the original surveillance programs were narrowly framed. As they expanded to target the communications of “everyone” and store them, because "it's the easiest and most efficient" way to achieve NSA’s ends, he went public by allowing himself to be interviewed by Glenn Greenwald, The Guardian reporter who scooped the story.

Greenwald said, "unfortunately, since the government hides virtually everything that they do at the threat of criminal prosecution, the only way for us to learn about them is through these courageous whistle-blowers …”

I’m not going to say Snowden was courageous or a whistle-blower. He took an oath, which he broke, and in blowing the NSA cover he didn’t say there was wrong-doing. So he isn’t a whistle-blower.

But as Cooke pointed out, the state is able to know a lot about citizens but citizens aren’t able to know what the state knows about them or even that the state knows it. Government, more particularly the Executive Branch, has seized the right to classify anything, preventing its activities from being known. How can government be accountable to the people if its actions are secret? It can’t. How can the people regulate what the government hides by classifying it? They can’t.

But it’s worse than secrecy. Beyond the reach of the people is a metastasizing administrative apparatus of unelected officials accountable to no one yet able to create regulations that limit the rights of every American citizen. Congress is no longer the sole creator of laws. These agencies effectively govern by regulations that are every bit as enforceable as law. The administrative state is usurping the legislative and judicial functions. It’s far more likely that a citizen will be found in violation of a regulation, and penalized accordingly, than to be in violation of law and penalized for it.

These agencies and their kudzu-like regulatory machinery sullenly tolerate elected representatives, knowing that long after each elected administration is gone, they will remain. Elections means less each time an agency is created, and no president has created more of them than Obama, particularly with his healthcare “reform.”

In January the Pew Research Center reported a survey that showed for the first time a majority of Americans – 53% of them – believe the federal government is the greatest threat to personal rights and freedom. A Rasmussen poll showed 57% believed the NSA data will be used by government to go after political opponents. Over 50% are opposed to the NSA program as the way to fight terrorism.

So, returning to the question at the beginning of this post, how do we defend our liberty and protect the American people at the same time?

We have likely fought the last war that involves battle lines, uniformed troops, and opposing armies. We fight shadowy enemies with no central command who are willing to die in every confrontation as long as they can inflict more damage on us than they suffer. To connect the dots of impending attacks, there have to be dots. And like it or not, dots include intrusive data collection and analysis at least at a high enough level to know where to drill down for more data. The intelligence work that could have prevented the Boston bombers was awful; but it’s undeniable that the bombers were caught because there were surveillance cameras.

The war of terror may be waged without armies or central command, but it can’t be waged without communication – which is almost always cross border communication – and that must be monitored. If we are to remain free, we must first be secure. Our concern should not be that data points are collected which may match up with a data point from a bad guy. Our concern should always be that those collecting and using data points never abuse them.

Simply saying “trust me,” as Obama naively suggests, is not a good enough system of checks and balances. The IRS and DOJ scandals amply showed how “trust” works when a government agency is involved.

But there is a method that could work to stop government abuse of its power. Offer any whistle-blower a reward for prosecutable wrong-doing. I’m talking rewards of a million or more dollars – enough to slake the greed of even the most steadfast agency loyalist to turn in anyone who is abusing their responsibilities. Then throw the book at the person who is convicted of wrong-doing. Hard time in prison. If every government official knew that every government employee could turn them in and collect a hefty reward, they would be less inclined toward wrong-doing. The Eastern bloc countries made this work during the Cold War. Every citizen became a potential government spy and alerted the Stasi if they saw something untoward.

Snowden would never have collected a reward because he disclosed no wrong-doing. But there is little doubt that Lois Lerner is guilty of a crime and should have been turned in years ago. She should now be tried and sent to prison. If she gets away with no punishment, it sends a signal that whistle-blowing will get you nothing, if not demotion (think Greg Hicks at the State Department regarding Benghazigate) and no one but low level employees will ever take a fall.

A variation of this method has worked in stopping software piracy. Turn in your company if it is stealing software use. The method also works in getting people to turn in IRS taxpayer cheats. I think it’s worth trying in government agencies.

NSA would be a good place to start. Immediately.

Benghazigate Breadcrumbs

In the movie Conspiracy Theory, actor Mel Gibson plays Jerry Fletcher, a quirky cab driver who believes that inexplicable world events are evidence of government conspiracies. He publishes his conspiracy theories in a newsletter which no one takes seriously, including the theater audience, until it turns out that one theory is correct. Because he has blown their cover, government agents track him down and try to kill him.

Most things are as they appear to be or as we’re told they are. Except conspiracies. They are secreted for a reason. And they remain undercover until someone suspends disbelief in the obvious explanation and considers other interpretations of the evidence that lead to a different conclusion.

I suspect that’s true of the emerging Benghazigate cover-up.

In early January, then former Secretary of State Clinton was called to testify before a Senate hearing looking into the government’s handling of the Benghazi attack before, during, and after it occurred. Her appearance before the Senate panel was destined to turn out badly because (a) Clinton doesn’t feel she is accountable to anyone, and (b) former Senator Clinton’s demeanor during the questioning suggested she was a bit torqued that she had to answer to those who were once her peers.

Her eruption occurred as Senator Ron Johnson questioned Clinton on what she knew and when she knew it. In view of the overwhelming evidence that the Benghazi attack was planned and perpetrated by al-Qaeda, Johnson was more than a tad interested in the cockamamie story floated by UN Ambassador Rice, Obama, and Clinton that the attack was a response to an online video lampooning the prophet Muhammad. A transcript and video of her barely contained fury with Johnson puts the lie to her apologists who claim the now famous “what difference does it make?” fulmination is quoted out of context. See for yourself. Here’s the text.

With all due respect, the fact is we had four dead Americans. Was it because of a protest or was it because of guys out for a walk one night decided to go kill some Americans? What difference at this point does it make? It is our job to figure out what happened and do everything we can to prevent it from ever happening again.

Hmm. As Hamlet’s mom observed, “The lady doth protest too much, methinks.”

Nine months have passed since the deaths of Ambassador Chris Stevens and three of his security detail. We’ve heard the Obama administration’s explanations du jour. They are, like most things Obama, a work in progress. Predictably, no one is to blame for Benghazi. Like the IRS and Associated Press revelations, the people who are in charge strangely never seem in charge when incompetence or scandals are uncovered. Last month we heard the testimony of two whistleblowers who blew the administration’s cover story and were demoted when they unsuccessfully tried to have the Benghazi story told truthfully.

The Democrat Party leaders point out – at least once a day – that the failure of the Republicans to uncover a conspiracy is proof that there’s not one. Well, that’s the way it is with conspiracies, Sherlock; the breadcrumbs are usually hard to follow. But there are enough of them here to suggest that the entire story, if not the true story, is yet to be known.

Keep in mind that, as the administration’s story morphed from video to terrorist act, the attack on the Benghazi occurred on the 11th anniversary of 9/11. Hardly a coincidence in that date. Also keep in mind that this tragic debacle occurred within two months of the presidential election. Lots of self-serving interests in keeping that unfavorable story off the front pages. And why Benghazi? The Libyan embassy is in Tripoli 400 miles west. Benghazi is a consulate – a ramshackle building with a nearby annex. There are larger, more prestigious embassies throughout the Middle East and surrounding countries. Why not attack one of those?

Last year I blogged about the Benghazi attack and the deaths which Obama called “bumps in the road.” You can read that blog post to get the details. Today I will try to follow the breadcrumbs

The alleged reason for intervening in the Libyan uprising was to prevent a humanitarian crisis – i.e. a large scale loss of civilian lives caught in the crossfire of the uprising. If the Tunisian, Egyptian, and Yemeni uprisings taught anything, however, they taught that there are very few civilians around in an anti-government revolution. Everyone takes sides and there may be more than two sides, although it usually boils down to a ruthless government against everyone else. Everyone else is usually a loose federation of parties whose only common denominator is to get rid of the guy in power.

Such is the modern Middle East which is comprised of ancient tribes and sub-tribes many of whom hate each other. And let’s not forget that the guy in power is no outsider. He was a tribal leader in the bad old days and retains tribal identity once in power. The Arab spring, which Obama laughably calls an outbreak of democracy, is an outbreak of regional civil wars with bad guys on all sides. It doesn’t make a lot of sense to intervene in someone else’s civil war, especially when it’s hard to know who to cheer for. But it is seriously stupid to help destabilize or destroy a stable government without any thought – and certainly no control – concerning the power vacuum that follows … which so far hasn’t produced an outbreak of democracy in Afghanistan, Iraq, Tunisia, Egypt, Libya, and Yemen, whose ruler is still in place.

A world yearning to be free is a fanciful if not incorrect belief among western democracies. Democracy and representative government is hard work. Regional stability seems to me to be a more preferable goal even if achieved by means the west finds distasteful. Qaddafi is now gone, with the help of the west, and Libya has been made safe for outside interference, civil unrest, internal power struggles, violence, and the ever-present conflict between secular Sunnis and Shiite zealots. Absent the iron-fisted leaders that kept them in check, the Muslim Brotherhood is free to move about the Middle East – at least most of it.

So, what if humanitarian motives weren’t the real reason for involving ourselves in Libya? Of the more than 30 people rescued from the Benghazi compound only seven were with the State Department. The rest were with the CIA. The CIA, in fact, was the initial presence in Benghazi arriving in February 2011 just after the uprising began. It set up shop in the consulate annex, which it called an office of the State Department consulate. As a practical matter, the State Department presence in Benghazi was simply to provide cover for the CIA. Even Libyan authorities didn’t know the CIA was there.

As the Libyan authority began to collapse so did its weapons arsenal, including a substantial number of shoulder-fired heat-seeking surface to air rocket launchers. It’s estimated that Qaddafi had over 20,000 of them. Since the UN-sanctioned humanitarian effort created an alliance of US, British, and French air forces, the small Libyan air force was suppressed. Thus these weapons, now in the hands of the rebels fighting to topple Qaddafi, were of little value. What the rebels needed was cash and the CIA obligingly supplied it – in return for the weapons. It makes sense that the CIA would have established relations early on with rebel leaders whose palms could be greased to get these weapons.

For what purpose? To get them in the hands of the Syrian rebels who were getting mauled in their effort to topple the Iranian and Russian backed Assad regime. The Times of London reported that a Libyan ship carrying a 400-ton arms cargo docked in a Turkish port. Its cargo would be trucked over the border and into the hands of the Syrian rebels. Shortly after, the Syrian rebels began shooting down Assad’s murderous helicopters and jets – a capability they hadn’t had before.

The CIA, of course, denies its involvement in the Syrian uprising, which would be expected of a government agency whose business is spying. But questions are beginning to be asked by those in Congress who are following the breadcrumbs. Was the CIA the core of the US operations in Benghazi with the State Department as its cover, and was it involved in gun-running? The breadcrumbs indicate yes on both counts.

Conspicuously absent when the four caskets arrived at Andrews Air Force Base was David Petraeus, then the head of the CIA, even though two caskets contained the remains of his men. He says he stayed away to avoid revealing a CIA connection in the Benghazi tragedy. CIA careerists despised him for it.

The cover on the CIA’s role in supplying Syrian rebels was blown a year ago and the CIA most surely concocted the fantasy of the lampooning video, which Clinton, Rice, and Obama so willingly peddled as co-conspirators in the cover-up.

Those asking the breadcrumb questions are mostly Republicans. Those deflecting the questions as a non-issue are mostly Democrats intent on protecting Clinton, who will undoubtedly run for President in 2016.

But there is no way that Clinton’s ambassador, Chris Stevens, did not know about the weapons transfer. He was the face of the US government to the anti-Qaddafi rebels and he therefore had to know that al-Qaeda was fighting with the rebels – contrary to Obama’s recent assertion that al-Qaeda wasn’t involved in Benghazi. Stevens’ principal contact with the Libyan rebels was known to have met with Syrian rebel leaders after Qaddafi was killed. The Syrians crossed into Turkey for the meeting whose purpose was to negotiate how Libya could supply money, arms, and fighters to aid Syrian rebels. Stevens' last meeting on the day he was killed was with the Turkish Consul General Ali Sait Akin, most likely in connection with weapon shipments through Turkey. How could Clinton not have known what Stevens, her subordinate, knew?

Democrats on investigative committees and the media are trying mightily to divert attention away from Obama – what he knew and when he knew it. He may have broken the law unless he can establish plausible deniability that he knew anything about the weapons shipments to the Syrian rebels. The exposure of the weapons transfer, therefore, raises serious problems for him. The transfer of weapons to al-Qaeda, who are known to be among the fighters in the Syrian uprising, is prevented under a UN arms embargo, which is binding on all member countries.

Moreover, Vladimir Putin has accused the US – Obama – of supplying weapons to “terrorists” who are trying to overthrow the president of a sovereign country. Obama has, of course, denied the charge, claiming US aid in Syria was limited to humanitarian help. What do you call something someone says knowing it’s not true?

The great imponderable here is why the Benghazi attack occurred. The existence of the CIA was unknown in Libya. Posing as State Department staff, the CIA pumped $40 million into Libyan rebel pockets to buy arms from the Qaddafi arsenal for Syria. Thus, the attack could not have been aimed at the CIA.
 

Was Stevens the target? Chris Stevens was very popular among Libyans, many of whom wanted their picture taken with him when he traveled in public. He refused a visible security detail when he was in public places making him more accessible. Those who say he wasn’t the target of the attack, that he was in the wrong place at the wrong time, ignore the larger question of the attack itself – why it happened at all.

This week, Obama announced that the US would begin supplying arms to the Syrian rebels because Assad had used chemical weapons against them. That’s a ruse allowing the US to do overtly what it has been doing covertly. For those who think outside the dots, a dot worth considering is this one. The Benghazi attack was a hit job – a Middle East tit-for-tat.

The Russians, Iranians, and Syrian government privately knew arms were flowing to the rebels from Libya. They knew the American CIA was involved, at least in Turkey. And they may have known that Stevens was involved in the illegal gun-running. It would not have taken a lot of effort to organize a hit squad in Syria and send them to Libya to do the deed. As fluid as Middle East borders are, a Syrian al-Qaeda group would have blended in with local Libyan militia and perhaps even been welcomed, whether the Syrian’s mission was known or not. The state sponsors of the hit squad would surely have known the gravity of their act. Wars have started over less. Maybe one has already started.

Those are some breadcrumbs worth following.

Holder’s Last Stand

Last Saturday’s New York Times contained a long political insight piece about Eric Holder, now at the center of yet another controversy. The article observed that:

Over the course of four and a half years, no other member of President Obama’s cabinet has been at the center of so many polarizing episodes or the target of so much criticism. While the White House publicly backed Mr. Holder as he tried to smooth over the latest uproar amid new speculation about his future, some in the West Wing privately tell associates they wish he would step down, viewing him as politically maladroit. But the latest attacks may stiffen the administration’s resistance in the near term to a change for fear of emboldening critics.

Notwithstanding the outward appearance of support for Holder, the article noted the frustration that some presidential aides have with him. “The White House is apoplectic about him, and has been for a long time,” said a Democratic former government official who asked not to be identified.

Holder has been caught time and again tripping over the facts of cases involving the Department of Justice. Following the election of Obama in 2008, complaints were filed that the New Black Panther Party had engaged in voter intimidation and vote suppression by appearing in black military-type clothing outside of a Philadelphia polling station. They were recorded on video so there could be no dispute that their appearance and behavior was threatening. One even swung a billy club.

Interference with an election is a civil rights violation, which falls under the responsibility of the DOJ. Imagine what would have happened if a member of the Ku Klux Klan had gathered outside of a southern polling station. Yet Holder’s agency dropped the investigation. Asked why in a hearing before a House Appropriation subcommittee, Holder said the "decisions made in the New Black Panther Party case were made by career attorneys in the department."

In fact, Obama political appointees, not career attorneys, made the decision. Associate Attorney General Thomas Perrelli, one of Holder’s direct reports, overruled the recommendation for prosecution made by Christian Adams, a former Voting Rights Section career attorney who later testified in the New Black Panther case in a hearing before the US Civil Rights Commission. Perrelli would never have made that decision on his own authority. He would have discussed it with Holder and gotten his approval. Holder knew or should have known of the decision.

Holder lied or he is inept.

Last May I wrote a two part blog on the “Fast and Furious” scandal in which the DOJ allowed guns to cross the Mexican border, ultimately leading to the death of a US Border Patrol agent. Holder’s nemesis, House Oversight Committee Chairman Darrell Issa, called Holder to testify in May 2011.

Asked when he first knew about the botched sting operation, Holder in sworn testimony said, "I'm not sure of the exact date, but I probably heard about Fast and Furious for the first time over the last few weeks."

Yet documents show that ten months before the Congressional hearing, in July 2010, Holder was briefed by the head of the National Drug Intelligence Center specifically informing him that "1,500 firearms were then supplied to the Mexican drug trafficking cartels."   At least six additional briefings of Holder occurred between July and November 1, 2010 about Fast and Furious including briefings from Holder's Assistant Attorney General Lanny Breuer.  

Defending his statement that he had only recently learned of Fast and Furious, Holder later said that he hadn’t understood Issa's original question and meant to say a "couple months" instead of "weeks." Sorry. That dog won’t hunt either. The documents from the National Drug Intelligence Center nail July 2010 unequivocally and it’s unfathomable that a program of this scale wasn’t known when Holder took over in 2009 and would have learned in the transition briefings of the predecessor program – Wide Receiver – which Bush had shut down before his term ended. So a “few weeks” becomes “a few months” which in fact is at least ten months, and probably is a lot more.

Holder lied or is inept.

Two First Amendment cases have now surfaced that have become the latest DOJ scandals. It is indisputable that Holder lied in connection with one of them and it’s likely that he has lied in his testimony about the other.

The first case goes back to the first year of the Obama administration during which Fox News Reporter James Rosen investigated a lead that North Korea was conducting secret nuclear bomb tests. Rosen’s source was a State Department contractor, Stephen Jin-Woo Kim. The information Kim gave Rosen was classified and in an effort to discover the source of the leak, Holder personally approved a search warrant of Rosen’s emails, telephone logs, and had Rosen followed.

Before any of this could happen, however, Holder or his associates had to get search warrant approval from a court. This involved judge shopping.  Despite a DOJ allegation that there was "probable cause" to believe Rosen "has committed or is committing a violation" of the Espionage Act "as an aider and abettor and/or co-conspirator," the first two judges turned down the search warrant request. Finally a third judge approved a “no notice” warrant that, as the name implies, would not be revealed to Fox News, Rosen, or his parents.

Among the records seized without Rosen’s knowledge were his personal emails, which DOJ read. His comings and goings in the State Department were traced by security badge access records.

Now that journalists on both right and left are in full uproar over the spying and intrusion by the DOJ, Holder's spinmeisters are saying there was never intent to prosecute Rosen. Really? Why was he named as an unindicted co-conspirator – possibly a flight risk? The DOJ’s warrant affidavit therefore contained false claims about Rosen, deceiving the third judge into granting a warrant. In other words, Holder’s warrant affidavit lied to a judge.

It comes as no surprise then that, appearing before the House Judiciary Committee on May 15, 2013, Holder said in sworn testimony: "In regard to potential prosecution of the press for the disclosure of material, this is not something I've been involved in, heard of, or would think would be wise policy."

“Not something I’ve been involved with, heard of’? Holder personally signed the warrant request. Here is an online copy of it.

House Judiciary Committee Chairman Goodlatte has sent this letter, also online, to Holder asking him to explain the inconsistency and the search warrant affidavit. The time the House allowed Holder to respond has now passed. Holder ignored the House committee request.

Holder lied or is inept.

Representative Darrell Issa, a member of the Judiciary Committee, said on CNN:

He certainly could have been more candid if he remembered, and he should have remembered. It would be kind to say he misled Congress. It would be less kind, and more accurate, to say that would rise to be a lie by most people’s standards. By the American’s people standard, you don’t sign a warrant and then pretend you wouldn’t know about it … that it wouldn’t come to you.

The second case occurred on the heels of the Rosen case. The Associated Press broke a story that Holder’s top aide, Deputy Attorney General James Cole approved the seizure of records of approximately 20 phone lines used by over 100 reporters and editors at the Associated Press early this year. The seizure included the land line to the AP press gallery in the House of Representatives. The DOJ justified its aggressive surveillance of journalists by saying that an investigation is underway to determine who told the AP about an intelligence operation involving a second underwear bomber.

Recall that in 2009 Umar Farouk Abdulmutallab attempted to blow up a flight bound for Detroit on Christmas Day with an underwear bomb. The underwear bomb disclosed by the AP was non-metallic in order to get through security. AP reported that a double agent had infiltrated al-Qaeda and learned of the plot. Alerting enforcement authorities with details of the underwear bomber, the plot was foiled.

A May 18, 2012 Reuters report states that AP agreed to delay releasing the story, but at no point did it propose any deals regarding this story. Instead, it says, “The AP delayed reporting the story at the request of government officials who said it would jeopardize national security. Once government officials said those concerns were allayed, the AP disclosed the plot because officials said it no longer endangered national security. The Obama administration, however, continued to request that the story be held until the administration could make an official announcement.”

According to Reuters, “a final deal on timing of publication fell apart over the AP's insistence that no US official would respond to the story for one hour after its release.” Obama administration officials rejected the request as “untenable,” at which point the AP said it would go public with the story. Various news organizations began reporting on the story the next day.

In fact James Brennan, then the White House adviser to Obama on terrorism, went public with the story the next day boasting that Obama had foiled an underwear bomb plot. Because the 2012 election loomed, Obama’s men wanted to make their leader appear once again as the defender of America’s security and al-Qaeda’s worst nightmare. Rather than revealing state secrets, AP’s “crime” was to scoop Obama by one day in an election year.

The DOJ retaliated by seizing records of the AP. However, in sworn testimony before the House Judiciary Committee Holder stated that he had recused himself from the AP investigation. His recusal is not backed up by a formal recusal letter, which is required under such circumstances. Absent a dated and witnessed recusal letter, Holder has the ability to distance himself from the affair by claiming something that neither he can prove nor anyone else disprove. Checkmate.

Such is the arrogance of this administration. Existing DOJ guidelines require prosecutors to inform the media organizations of security concerns in publicizing certain information to determine if a compromise can be worked out. Journalists are to be investigated only as a last resort and even then only narrowly in order to protect the First Amendment rights of investigative reporting.

Holder’s credibility has been underwater for the last several weeks as news of the Rosen and AP story occupy the nation’s attention. Much to the chagrin of the White House, the two most loyal Obama allies – the media and the Left – have been only lukewarm in their support as these scandals build. A recent survey conducted by the Rasmussen organization showed that only 25% of Americans have a favorable opinion of Holder, while 47% – almost double – have an unfavorable opinion of him. A substantial number – 42% – believe that he should resign as Attorney General, whereas only 22% believe he should remain in the job.

Moreover, 58% of voters disapprove of the DOJ seizing reporters’ phone records and 52% believe the DOJ is caught in a serious scandal. Even prominent voices on the Left believe reading a reporter’s personal email is beyond the pale.

The mainstream media, normally a loyal water-carrier for the Obama regime, is torqued over the DOJ investigation of reporters. This has put Obama in a position he hasn’t experienced since his 2008 election – being held accountable by the media.

Despite calls for a special prosecutor, Holder has refused to appoint one. Late last month, Obama gave his loyal Attorney General an escape route. He announced at a press conference that:

Journalists should not be at legal risk for doing their jobs … [and] I have raised these issues with the Attorney General, who shares my concern. So he has agreed to review existing Department of Justice guidelines governing investigations that involve reporters, and will convene a group of media organizations to hear their concerns as part of that review. I have directed the Attorney General to report back to me by July 12th.

Let me see if I’ve got this right. In lieu of an independent investigator outside of the Obama administration, Eric Holder, who violated existing DOJ guidelines, who signed off on a “no notice” warrant to seize the records of James Rosen, including personal emails and his parent’s telephone records, who lied to a judge about Rosen’s culpability in espionage for which he never intended to press charges, and then lied to a House committee that he wasn’t involved in the illegal investigation, this same Eric Holder is going to investigate Eric Holder and his department and Eric Holder is going to report his findings about Eric Holder to Obama on July 12?

Works for me.

The War on Terror is Over!

History tells us that in the 11th century King Cnut – Anglicized in modern English to Canute –ruled Denmark. It’s said that a retinue of flatterers surrounded him who claimed the King capable of almost any feat. To prove them wrong, he had his royal chair placed by the edge of the sea where he ordered the waves not to break upon his land or wet his royal feet. When the sea ignored both orders, it showed his sycophants proof that kings have limited powers over the physical universe.

Unlike Canute, Obama doesn’t need a retinue of flatterers. He does a good job of the “mirror, mirror on the wall …” routine in solo performance as evidenced by the volume of personal pronouns in his National Defense University speech last week. Also unlike Canute, who modestly acknowledged the limits of his power, Obama is quite the opposite. By declaring in his speech that the 12-year war the US has waged against the clients of terrorism is over, then by Jove, it’s over. Somebody should let the terrorists know, however. One of them beheaded a British soldier on a London street the day before King Canute-Obama’s declaration. Doggone those waves!

Obama’s speech was unremarkable in content and puzzling in purpose. With his administration awash in three simultaneous scandals maybe the speech was his way of changing the subject.

I’ve read its grandiloquence and many commentaries on it as well. As in all spoken or written communications, I looked for the fulcrum – the “center of gravity” – around which all of the words rotate. It seems the fulcrum of Obama’s speech, which needed 6,500 words to support it, is this statement:

Today, the core of al-Qaeda in Afghanistan and Pakistan is on a path to defeat. Their remaining operatives spend more time thinking about their own safety than plotting against us. They did not direct the attacks in Benghazi or Boston. They have not carried out a successful attack on our homeland since 9/11. Instead, what we’ve seen is the emergence of various al-Qaeda affiliates. From Yemen to Iraq, from Somalia to North Africa, the threat today is more diffuse …

The assertion that al-Qaeda is “on the path to defeat” is delusional. The evidence, like Canute’s wet feet, shows the opposite. The murder of our Libyan Ambassador, Chris Stevens, and his security detail were casualties of this kind of wrong-headed thinking.

Following Obama’s speech, Senator McCain held a press conference in which he challenged the “path to defeat” assertion, to wit:

I believe we are still in a long, drawn-out conflict with al-Qaeda. To somehow argue that al-Qaeda is, quote, ‘on the run’ comes from a degree of unreality that, to me, is really incredible. Al-Qaeda … is … expanding all over the Middle East, from Mali to Yemen and all places in between. And to somehow think that we can bring the authorization of the use of military force to a complete closure contradicts the reality of the facts on the ground. Al-Qaeda will be with us for a long time.

It’s laughable to believe that “remaining operatives spend more time thinking about their own safety than plotting against us.” Does Obama believe their suicide ideology has changed? I doubt that any “worry about their own safety” when they volunteer to blow up their underwear or shoes or hang around London after a beheading, knowing they will be shot (as two were.)

The Benghazi attackers were al-Qaeda affiliates, contrary to Obama’s claim that they weren’t, and while the Boston bombing wasn’t genuine home-grown al-Qaeda, it was a Muslim fanatical jihad group that showed Tamerlan how to make the bomb he used. Does their brand really matter? The Boston victims are just as dead or mutilated regardless of the terror brand on the bomb.

Finally, “They have not carried out a successful attack on our homeland since 9/11” shows how much time Obama has been spending on the golf course. Ten years after 9/11 Obama ordered Anwar al-Awlaki – a regional commander of al-Qaeda – to be vaporized in Yemen in September 2011. Two years earlier al-Awlaki masterminded the 2009 Ft. Hood attack that killed 13 and wounded 30. Major Nadal Hasan was the shooter but al-Awlaki called the signals. And before al-Awlaki’s atoms comingled with the eternal ether, he invited Umar Abdulmutallab to his Yemeni home to advise the youngster how to ignite his Fruit of the Looms en route to Detroit. Thankfully that 2009 attack failed. The next year in 2010, Faisal Shahzad, a Pakistani graduate of Terror U., parked a car bomb in Times Square which failed to explode. Do any of these constitute an attack on our “homeland since 9/11” contradicting Obama’s confident assurance in his speech? The fact that we haven’t seen any more planes fly into buildings is not evidence that homeland attacks are over. One of the many attempts will slip through our security – like the Boston bombing.

As I read Obama’s careful parsing of who is and who isn’t al-Qaeda, I recalled a scene in one of the Pink Panther films. Spying a snoozing pooch at a man’s feet, the bumbling Inspector Clouseau asks “Does your dog bite?” Assured by the man that his dog didn’t bite, Clouseau bent over to pet the animal and it bit him. “I thought you said your dog doesn’t bite!” screamed the Inspector. “That’s not my dog,” the man answered without looking up.

If Obama believes the only participants in “the war on terror” are card-carrying al-Qaeda wearing tee-shirts with A-Q logos, we’re in trouble.

Obama, who has authorized 600% more drone strikes than the hated George Bush, showed new “no more war” restraint in saying,

… we act against terrorists who pose a continuing and imminent threat to the American people … there must be near-certainty that no civilians will be killed or injured – the highest standard we can set.

The first phrase referring to a “continuing an imminent threat” in the speech is significant. Before the speech, Obama staffers briefed reporters that the threat threshold for drones had been raised from “significant threat,” which the new CIA chief, John Brennan, had laid down in 2012 when he was the White House counterterrorism adviser to Obama. Now it must be a “continuing and imminent threat.”

“Larry, does that look like a ‘significant threat’ or a ‘continuing and imminent threat’ to you?”

“Why, Moe, that’s a ‘significant threat’ if I’ve ever seen one. What do you think, Curly?”

As if this silly, hair-splitting distinction wasn’t foolish enough, Obama added, “there must be near-certainty that no civilians will be killed or injured – the highest standard we can set.” Can you imagine how the US military would have fared with that standard in any of the conflicts it has fought? Sherman didn’t mean “War is hell” metaphorically. He meant the civilian population is a fair target in order to get the other side to stop fighting. Ask the Japanese.

With about 80% of the speech behind him, Obama began his coda:

The [Authorization to Use Military Force] (AUMF) is now nearly twelve years old. The Afghan War is coming to an end. Core al-Qaeda is a shell of its former self. Groups like al-Qaeda’s affiliate in the Arabian Peninsula must be dealt with, but in the years to come, not every collection of thugs that label themselves al-Qaeda will pose a credible threat to the United States. Unless we discipline our thinking and our actions, we may be drawn into more wars we don’t need to fight, or continue to grant Presidents unbound powers more suited for traditional armed conflicts between nation states. So I look forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate. And I will not sign laws designed to expand this mandate further. Our systematic effort to dismantle terrorist organizations must continue. But this war, like all wars, must end. That’s what history advises. That’s what our democracy demands.

“This war, like all wars, must end” sounds nice. But wars don’t end when one side declares them over. They end when one side wins and the other side surrenders and thereby loses. That’s the way it’s always worked. I haven’t a clue what Obama’s allusions to “history advises” or “democracy demands” mean but I do know history a lot better than Obama. When there isn’t an undisputed winner, the conflict continues in a thousand disguises.

Continual warfare is, well, continual. Michael Adebolajo, the Nigerian Muslim who beheaded Lee Rigby in London last week and then waved his bloodied hands and showed his blood-stained shirt to nearby citizens who were video-recording him – citizens who had allowed him to live in their country – showed his gratitude by shouting on video "We swear by almighty Allah we will never stop fighting you."

Obama may not have the stomach for continual war, but Islamic supremacists do. They believe they are divinely directed to conduct violent jihad against non-Muslims – that’s you and me – until we and the world submit to sharia and thereby a perfect society. Last week Obama repeated his standard mantra that most followers of Islam do not believe in practicing violence. Yet strangely, the Islamic community has yet to take a stand against it.

Before concluding his speech, Obama trotted out for the umpteenth time the tired old bromide about closing GTMO (Gitmo) – home to 166 of the world’s nastiest characters.

GTMO has become a symbol around the world for an America that flouts the rule of law. Our allies won’t cooperate with us if they think a terrorist will end up at GTMO. During a time of budget cuts, we spend $150 million each year to imprison 166 people –almost $1 million per prisoner. And the Department of Defense estimates that we must spend another $200 million to keep GTMO open at a time when we are cutting investments in education and research here at home.

There is no evidence that Gitmo is the scourge of the world. It isn’t a symbol that we flout the rule of law and people would begin to like us if only we’d close it. The fact is that Congress will not permit this detention facility – which treats its inmates better than they are treated at home – to be closed because two out of three Americans, aka voters, want it open. At least we know where the bad guys are … and will remain … unless they learn to swim the Florida Straits.

A million dollars per inmate involves some very creative accounting. Coming from a guy who ran up a $16 trillion debt against future American generations, his economic argument that we must choose between Gitmo or investment in education and research has no moral standing.

As President, I have tried to close GTMO. I transferred 67 detainees to other countries before Congress imposed restrictions to effectively prevent us from either transferring detainees to other countries, or imprisoning them in the United States. These restrictions make no sense … there is no justification beyond politics for Congress to prevent us from closing a facility that should never have been opened.

Congress slapped a lid on Obama’s releases of detainees to Yemen and other countries who’d take them when they began showing up on battlefields again. No less than the New York Times, hardly a shill for conservative causes, reported at the foregoing link that one in seven former Gitmo detainees return to the battlefield. Politics had nothing to do with it. Releasing our enemies to kill more of our soldiers had everything to do with it. As for “a facility that should never have been opened,” Gitmo has been a US military post for over a century and most posts have a brig.

I know the politics are hard. But history will cast a harsh judgment on this aspect of our fight against terrorism, and those of us who fail to end it. Imagine a future – ten years from now, or twenty years from now – when the United States of America is still holding people who have been charged with no crime on a piece of land that is not a part of our country. Look at the current situation, where we are force-feeding detainees who are holding a hunger strike. Is that who we are? Is that something that our Founders foresaw? Is that the America we want to leave to our children?

The reason that the inmates at Gitmo have not been charged with a crime is that they are not criminals. They are prisoners of war. They have no rights under the US Constitution because they aren’t citizens of this country. No trial by jury, no civilian courts, no ACLU lawyers or rules of evidence, no bleeding heart pleas for their misunderstood terrorist childhoods. They were caught shooting at our soldiers. PERIOD!

As for “not a part of our country,” Gitmo is a part of a 1903 lease arising out of the Spanish American War. The US has absolute and unconditional control under that lease although the land belongs to Cuba, which belonged to the Spanish, whom we whupped! So while the Gitmo base isn’t on sovereign US soil, it wouldn’t be wise for Cuba to try to take it back. Fidel might want to talk to the Argentinians about the Falkland Islands first.

As for the Founders and future generations, I think both groups would be more shocked about our profligate government, its use of the IRS to target citizens, the criminalizing of news reporters by illegal violations of their First Amendment rights, ignoring our Libyan Ambassador’s cries for help, and high government officials in the DOJ, IRS, and State Department who have perjured themselves before investigative committees of the people’s Congress. Gitmo pales against these travesties.

Obama’s unilateral declaration that war against the forces of terror is over conveniently overlooked the fact that Iraq is about to collapse into civil war. The Middle East – Libya, Tunisia, Egypt, Syria, Lebanon, and Afghanistan – have governments held together by chewing gum. None, including Iran, has a functioning economy that can employ its working-age male population to do something other than fight and engage in terrorism.

Militia groups – both armed and not – are forming throughout the Middle East and becoming de facto governments. A recent article noted that the Prime Minister of Libya “has to cross checkpoints manned by five different militias on his way home from office.”  Unless stable governments, even those not to our liking, are formed soon, the result will be similar to Palestinian society – a impoverished generation of uneducated young men who have known no life but war, who possess no marketable skill except that of an irregular fighter, who have no home and thus nothing to lose or to build a future on.

The Middle East is becoming a large “factory” for the production of terrorists – stamped out like Fords on an assembly line. And with the fall of governments, the ability to control them diminishes. They are homeless, hungry, and angry. Their problems can’t be solved by US foreign aid as Obama proposes in his speech. There isn’t enough money in the world let alone in the US to do that. What is needed is something we can’t provide – governments that reflect their multi-ethnic cultures, governments that often rule with an uncomfortably harsh stick. We better accept the fact that most of the world cannot remain stable with the degree of freedom Americans enjoy. To think otherwise is Little Goody Two-Shoes thinking … at home in nursery stories but not the real world.

The two greatest threats to our national security are a military designed for conventional war but unprepared to fight the only kind of war that can be waged against a superpower like us – i.e. an army of independent irregular units armed with unsophisticated weapons, possessing no central command structure, reliant on small scale terror attacks, and trained to have a fanatical willingness to die when their own deaths can be multiplied in their dastardly deeds.

The second threat to our national security is that we enter a new era of war with a president who believes that the war is over.