Post published for www.blog.american.com, February 2, 2012

Earlier this week, President Obama did something unprecedented when he acknowledged the existence of the CIA’s drone campaign—the first time an American president has publicly declared that the United States is using unmanned drones to kill al Qaeda terrorists.

It is unclear whether the disclosure was inadvertent, or the result of a conscious decision by the administration to be more forthcoming about the drone program. But one of the consequences of the president’s remarks is that it exposes the program to greater risk of successful legal challenges by groups opposed to the drone campaign.

Before the president spoke, the government could argue in court that the very fact that the United States is conducting drone strikes in a given area and context was classified and thus within the scope of a “state secret” assertion. Indeed, the administration has successfully argued in previous legal cases that national security prohibits the discussion of the covert program.

Now, if a civil plaintiff were to claim harm from a drone strike in the general area and context implicitly acknowledged by Obama, the plaintiff might be allowed to proceed—even if the government could still assert state secrets privilege over specific details of an operation or the workings or techniques of the drone program. The president’s public acknowledgment of these operations has thus narrowed the ground for a “state secrets” assertion and made it at least marginally more difficult to get cases dismissed on national security grounds.

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Published for www.washingtonpost.com, January 30, 2012

In recent days, two ads were released in Florida attacking Mitt Romney’s record at Bain Capital. One was produced by the American Federation of State, County, and Municipal Employees (AFSCME), a left-wing public-worker union that has pledged to spend upward of $100 million to reelect Barack Obama. The other was produced by Newt Gingrich’s super PAC, Winning the Future.

Can you tell which is which?

Ad No. 1: With a crescendo of ominous music in the background, a news anchor declares: “With Medicare, the government says con artists are draining the life blood out of it by filing millions of dollars in phony claims.” As he speaks, images of an unseen person counting hundred-dollar bills appear. The screen flashes: “Cayman Islands” … “Swiss bank” … “$100 million IRA” … “Illegal activity” … “Romney supervised” … “Company guilty of massive Medicare fraud” — and then, over a picture of smiling Romney, the words “Blood Money” appear.

Ad No. 2: A picture of a smirking Romney appears while an announcer asks: “What kind of businessman is Mitt Romney? While Romney was a director of the Damon Corp., the company was defrauding Medicare of millions. Prosecutors called it corporate greed run amok. The company was fined $100 million dollars. But Romney himself made a fortune. Corporate greed. Medicare fraud. Sound familiar?”

So which is the union ad and which is the Gingrich super PAC ad? (Answer: Ad No. 2 is from AFSCME, Ad No. 1 is from Gingrich’s super PAC. If you got it wrong, you should not be surprised — the two are virtually indistinguishable. Indeed, the pro-Gingrich video is the more incendiary of the two, not simply accusing Romney of fraud but attacking him for the crime of being wealthy and successful. If you’re a free-market conservative, that should leave you deeply troubled.

And Team Gingrich has another worrisome ally in this line of attack. Democratic National Committee chairwoman Debbie Wasserman Schultz (D-Fla.) blasted out a long memo to the press on Friday echoing the claims made by Gingrich and AFSCME and castigating Romney for “[l]aying off workers, defrauding Medicare, bankrupting companies, and storing millions of dollars in notorious off-shore tax havens.”

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Published for www.commentarymagazine.com/corner, January 23, 2012

One week ago, Newt Gingrich was on the ropes in South Carolina, under near-universal assault on the right from his attacks on Mitt Romney’s record at Bain Capital. Everyone from Rush Limbaugh to the Club for Growth and the Wall Street Journal had all declared their disgust. The conservative backlash had given Romney a double-digit lead in the polls. At a candidate forum hosted by Mike Huckabee, Gingrich was booed by the crowd when he tried to defend his Bain attacks.

Fast forward one week, and Gingrich is the winner of the South Carolina primary. Not only did Gingrich win, he crushed Romney 40.4 percent to 27.9 percent — a swing of more than 20 points in just a week. And a new poll shows that, after trailing Romney by more than 20 points in Florida last week, Gingrich has now opened an eight-point lead in the Sunshine State.

What happened? Simply put, Romney let Gingrich up off the mat.

In his concession speech after Saturday’s loss, Romney laid into Gingrich, accusing him of “demonizing success” and using the “weapons of the left.” Romney declared, “If Republican leaders want to join this president in demonizing success and disparaging conservative values then they’re not going to be fit to be our nominee,” adding “We cannot defeat the president with a candidate who has joined in that very assault on free enterprise.”

It was the right message, delivered a week too late. If Romney had made those very points in the South Carolina debates he might have been the one who received the standing ovations instead of Gingrich — and might well have emerged the winner in the Palmetto State.

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Published for www.blog.american.com, January 19, 2012

Authorities at Guantanamo Bay recently began reading privileged attorney-client communications in an effort to prevent terrorists from passing messages and receiving unauthorized information from their brethren on the outside. Detainee advocates have responded with outrage, but we may now have learned what sparked the new procedures—an al Qaeda terrorist training manual has been found at Gitmo.

The Miami Herald reports this morning:

“A copy of Al Qaida’s fiery magazine Inspire somehow got inside the prison camps at Guantánamo, a prosecutor disclosed at the war court Wednesday.

Navy Cmdr. Andrea Lockhart blurted out the embarrassing disclosure in defending the prison camp commander’s plan to give greater scrutiny to legal mail bound for alleged terrorists. She was discussing a system used by civilian lawyers to send materials to Guantánamo captives who are suing the U.S. for their freedom through habeas corpus petitions in Washington, D.C.”

An al Qaeda lawyer, Shayana Kadidal of The Center for Constitutional Rights, suggested that an interrogator may have provided the magazine to a detainee to curry favor with a captive. This is simply preposterous. No interrogator in his right mind would give a detainee a copy of Inspire—because the magazine is much more than an al Qaeda “propaganda magazine.” It is an al Qaeda terrorist training manual, replete with detailed instructions for how to commit terrorist attacks against the United States.

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Published for The Washington Post, January 3, 2012

In a recent column, The Washington Post’s Fact Checker declared Rep. Ron Paul “a consistent champion of smaller government” who votes against “virtually every piece of legislation that could be interpreted as government overreach or interference with the free market.”
There one small problem with the analysis: It ignores the fact that Paul is one of the biggest pork-barrel earmarkers on Capitol Hill.

The Texas Republican defends his record, telling Fox News’s Neil Cavuto in a 2009 interview that “earmarks is the responsibility of the Congress. We should earmark even more.” And besides, he explained, he votes “no” on all his own earmarks anyway. “I think you’re missing the point,” he told Cavuto, “I’ve never voted for an earmark, I’ve never voted for an appropriations bill.”

But that is exactly the point. His strategy is to stuff legislation with earmarks that benefit his constituents and thus his reelection, and then vote against the overall bill — knowing full well it will pass over his objections — so he can claim to have opposed all the spending in the first place.

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Published for The Washington Post, January 2, 2012

It is impossible to know who will win the Iowa Caucuses — as of this weekend, half of Hawkeye Republicans polled said they might still change their mind about which candidate they support.

There is a good argument for a Romney victory. The latest Real Clear Politics average shows Romney in first with 22.8 percent, Paul just behind with 21.5, Santorum with 16.3, Gingrich with 13.7, Perry with 11.5, Bachman with 6.8. This is exactly where Romney wants his conservative opposition — divided.

But Paul has one factor working in his favor that Romney lacks — enthusiasm. Paul supporters are nothing short of rapid. For weeks, young Paul backers have descending on the state from across the country to knock on doors and bring out the vote — and have been finding a receptive audience among Iowa Republicans. Indeed, Paul’s support may well be deeper than the polls indicate. Lot of folks may not tell pollsters they support Paul, but vote for him when the moment comes. I hope that I am wrong, but I fear that Ron Paul may win Iowa.

That might suit Mitt Romney just fine. Victory in Iowa would not set Paul on a path to the GOP nomination, but it would be a blow to Romney’s other conservative challengers. While Romney would prefer to win in Iowa, a strong second place finish there, followed by a victory in New Hampshire, would give Romney the momentum he needs going into South Carolina.

What should have Romney most worried is the late surge by Rick Santorum, who was polling at 21 percent in the last two days of the Des Moines Register poll. If evangelicals decide to unify around him, it is entirely plausible that Santorum and Paul could take some combination of first and second place, leaving Romney in third. The only way Romney comes out of Iowa weakened is if he loses to both Paul and Santorum — which is a distinct possibility.

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Published for The Washington Post, January 2, 2012

Rep. Ron Paul is in a dead heat with Mitt Romney for first place in the Iowa caucuses. If he does pull out a win on Tuesday, Iowa Republicans will have chosen as their commander in chief a man who says it was wrong to kill Osama bin Laden.

In a recent interview with a Des Moines radio station, Paul not only came out against killing bin Laden but gave a remarkable reason for his opposition: The operation that took out the man responsible for the massacre of nearly 3,000 people in our midst, he said, showed no “respect for the rule of law, international law.” International law? Back in 2002, Paul wrote in a column that “America must either remain a constitutional republic or submit to international law, because it cannot do both.” I guess it is goodbye constitutional republic since Paul now claims that international law constrains us from killing the man behind the most brazen attack on our country since Pearl Harbor — the man who, as we learned from documents recovered from his compound in Abbottabad, Pakistan,was actively plotting another attack to exceed the magnitude of 9/11. Since when do libertarians acknowledge the power of supranational law to prevent a sovereign United States from defending itself against foreign aggressors?

Not only does Paul oppose the killing of bin Laden, he opposes the drone campaign that has taken out more than 60 al-Qaeda leaders since 2008 — including the strike that killed Anwar al-Awlaki, the man behind the attempted bombing of a Northwest Airlines flight over Detroit on Christmas Day 2009. As he put it in a June debate, as president “I’d quit bombing Yemen, I’d quit bombing Pakistan.”

Paul has clearly tapped into a growing sentiment among some conservatives to bring our troops home. But do Iowa Republicans really believe that we should not have killed Osama bin Laden? Or that that the United States does not have the authority under international law to take out al-Qaeda leaders planning attacks on our country? If so, then, by all means, they should vote for Ron Paul.

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Published for The Washington Post, December 19, 2011

At the GOP debate in Sioux City, Iowa, Newt Gingrich defended his pro-life record, declaring, “I believe that life begins at conception” and stating that embryos at fertility clinics “should be considered life because by definition they’ve been conceived. I am against any kind of experimentation on embryos. And I think my position on life has been very clear and very consistent.”

No, it hasn’t. In an interview just two weeks ago, Gingrich said precisely the opposite. ABC News’s Jake Tapper asked Gingrich about his comments that “these fertilized eggs, these embryos are not yet ‘pre-human’ because they have not been implanted. This has upset conservatives in [Iowa] who worry you don’t see these fertilized eggs as human life. When do you think human life begins?” Gingrich replied: “Well, I think the question of being implanted is a very big question. … I think that if you take a position when a woman has fertilized egg and that’s been successfully implanted that now you’re dealing with life, because otherwise you’re going to open up an extraordinary range of very difficult questions.” Tapper followed up “So implantation is the moment for you?” Gingrich replied: “Implantation and successful implantation.” In other words, Gingrich’s position is not that life begins at conception, or even implantation, but at successful implantation.

This was not the first time Gingrich made such a claim. As National Review’s Ramesh Ponnuru has pointed out, as President George W. Bush was grappling with the stem cell issue in 2001, Gingrich launched a media campaign to allow such medical experimentation on human embryos. In an interview on Fox News, Gingrich urged Bush to support “research on cells that are in fertility clinics that have never been in anyone’s body, in terms of being — becoming a person,” adding “for many of us, there’s a very, very real distinction between doing something with an unborn child, a fetus that is implanted, and doing something with cells in a fertility clinic that are otherwise going to be destroyed.”

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Published for The Washington Post, December 13, 2011

In an effort to bring down surging front-runner Newt Gingrich, the Romney campaign has deployed a very strange choice of attack dog: former White House chief of staff John Sununu.

Sununu is everywhere these days. On a campaign conference call with reporters last week, he accused Gingrich of “a pattern of anti-principled actions that really irritated his own leadership and produced 88 percent of the Republicans in Congress voting for his reprimand.” On Sunday, the Romney campaign put him up against former Pennsylvania congressman Bob Walker on CNN’s “State of the Union,” where Sununu hit Gingrich for his “$500,000 outstanding bill at Tiffany’s” and warned, “The conservatives that he has turned his back on should recognize the fact that he’s not a conservative.” And this week, Sununu has begun hitting the airwaves on conservative talk radio, telling host Scott Hennen that Gingirch is “not stable.”

All of this raises a question: Has the Romney campaign lost its mind?

No doubt Sununu’s support is important for Romney in New Hampshire, where he was a popular governor in the 1980s and served as chairman of the state Republican Party from 2009-2011. But Sununu is a discredited figure among conservatives. To deploy him on the national stage — in an effort to convince conservatives that Gingrich is not one of them — is, quite simply, insanity.

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Published for The Washington Post, December 13, 2011

A true story: Several years ago, the CIA informed the White House counterterrorism adviser that it had located a wanted Islamic terrorist and requested White House guidance for how to proceed. The counterterrorism adviser recommended “extraordinary rendition” — snatching the terrorist in a covert operation and secretly whisking him away for interrogation in a foreign country. A White House lawyer demanded a meeting with the president to argue that this would be a violation of international law. In the Oval Office, the lawyer and the counterterrorism adviser argued their cases, when suddenly the vice president walked in. Hearing the lawyer’s objections, he said: “Of course it’s a violation of international law, that’s why it’s a covert action. The guy is a terrorist. Go grab his ass.’ ” The rendition was authorized.

The vice president in question was not Dick Cheney, nor was the president George W. Bush. Rather, they men who decided to carry out the first extraordinary rendition of a terrorist target — over the legal objections of the White House counsel’s office — were Al Gore and Bill Clinton, according a description of the meeting by the counterterrorism adviser, Richard Clarke, in his memoir, “Against All Enemies.”

This episode is worth recalling in light of Amnesty International’s call for the arrest of former President George W. Bush during his recent visit to Ethiopia, Tanzania and Zambia for alleged “crimes under international law” relating to his administration’s RDI (Rendition, Detention and Interrogation) program. Yet it was the Clinton administration that pioneered what Amnesty considers the “illegal” practice of extraordinary rendition, which the organization claims “usually involve[s] multiple human rights violations.” Indeed, Gore himself acknowledged that such renditions were “a violation of international law” but counseled the president to go ahead anyway — sending captured terrorists to be interrogated by the intelligence services of regimes with questionable human rights records.

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