Archive for the Freedom Category

Benjamin Wittes

My former colleagues on the Washington Post editorial page have weighed in quickly on Eric Holder’s speech yesterday with an editorial entitled, “It’s Time to Release the Drone Memos.” The gravamen of the editorial, as the title suggests, is that the administration “should release the Justice Department memorandum that lays out the domestic and international strictures which, it says, undergird its drone policy.” The editorial does not take issue with Holder’s speech. Indeed, it says generally that,

We agree with the thrust of Mr. Holder’s statements. But these are assertions based on the administration’s interpretation of the law, not an explication of which laws it relies on in justifying these strikes.

The country learned all too well during the Bush administration’s indefensible use of torture how existing legal authorities can be twisted. Soon after President Obama took office, Mr. Holder made public many of the Bush-era “torture” memos crafted by the Justice Department’s Office of Legal Counsel; he should now perform a similar public service by releasing — in redacted form, if necessary — the department memos that deal with drone strikes.

I certainly support releasing as much of the underlying documentation as possible, and I have no end of admiration for the Post editorial page. That said, this argument seems to me a little bit off. For one thing, I think the administration deserves considerable credit for–beginning with Harold Koh’s ASIL speech, continuing through Jeh Johnson’s and John Brennan’s speeches, and culminating in this one by Holder–laying out a great deal of its general legal theory. It has gone from near total silence on the subject as drone strikes ramped up to a fairly comprehensive account of the legal basis for what we are doing.

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Richard Epstein

There are many horrible features about the President’s birth control mandate, with respect to religious institutions.  The Catholic Church, rightly in my view, regards this federal imposition as a mortal threat of its right to follow Church teachings on core issues of belief, which seems to be an interference with the guarantee that the Congress will do nothing to prohibit the “free exercise” of religion.

To that claim, there are several replies.  The first is that the operation of medical facilities in accordance with Church teachings is not the exercise of religion, which only encompasses matters of worship and ritual.  That view is hopelessly narrow, given that the exercise of religion has to do with the way in which religious institutions interact in the world.  Indeed the recent Supreme Court decision Hosanna-Tabor Evangelical Lutheran Church v. EEOC makes clear that the choice of teachers for religious education fall within that core.  The issues of abortion, contraception, and sterilization get far closer to the core.

It has been often been stated that even if these activities are covered, the Constitution does not protect their exercise when they are limited by a neutral law passed for nonreligious purposes that impacts religious and nonreligious institutions alike.  The position of neutrality is taken inUnemployment Division v. Smith, a decision written by Justice Scalia.  That decision does cut against the claim of religious liberty because it indicates that the size of the burden of religious choice has nothing to do with the free exercise claim.

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Victor Davis Hanson

Syrian Ironies

The more Bashar Assad butchers Syrian dissidents, the more the world community expresses outrage — while it does little to stop the bloodletting. Why?

Ironies on top of ironies

1. The politics of intervention. Republicans might seem the most likely to push for an American bombing campaign against Bashar Assad. Some conservatives, in fact, are doing so. But most are silent — and for understandable reasons. Between 2005 and 2009, most liberals made the case that American intervention against an Arab dictator in the Middle East was intrinsically unwise. This liberal chorus included the likes of Hillary Clinton, who as senator had voted to authorize the use of force against Saddam Hussein. Barack Obama in 2007 started his presidential bid to the left of Senator Clinton, outlining a plan for near-immediate withdrawal from Iraq, while continuing his concerted attack on almost all the Bush-Cheney anti-terrorism protocols.

Republicans were relieved that Obama, once president, suddenly dropped almost all the demagogic criticism that had fueled his successful campaign and embraced the Bush-Cheney policies against terrorists. But they were not relieved enough to overlook the hypocrisy — and the prior damage done by Obama and others, whose rhetoric was revealed as more partisan than reflective of any principled positions against Guantanamo, renditions, tribunals, preventive detention, and troops in Iraq.

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Benjamin Wittes

I promised yesterday that I would have more to say about Andrea Prasow’s comments on the fairness of the Majid Khan plea agreement after I had a chance to stew on them a bit. In the meantime, I have learned that Human Rights Watch, for whom Prasow works, is not the only major human rights organization to have weighed in on the Khan plea. In this post by Advocacy Counsel Melina Milazzo, Human Rights First offers a thematically similar critique. The emphasis in Prasow’s and Milazzo’s comments differs slightly, but as they both advance a similar thesis, I am treating them in a single post.

The thesis, as Milazzo puts it, is that “While this [deal] might be touted as a win-win for the U.S. government and Mr. Khan himself, it’s ultimately a loss for the integrity of the American justice system.” Prasow formulates it in similar terms: “Yes, a man pleaded guilty today to serious crimes. But his plea is no victory, at least not for justice and the rule of law. Instead, it is a reminder that a fundamentally flawed system will continue to produce fundamentally flawed results.”

I think this thesis is wrong on its own terms. I also think that the arguments Prasow and Milazzo muster in support of it are either wrong or non sequiturs–or both.

Let’s start with their big picture point. In my view, at least, any time a criminal defendant is willing, voluntarily and without compulsion, to take responsibility for his crimes (which are in this case very serious crimes), that is a good thing. If we are to condemn it as  ”a loss for the integrity of the American justice system” or as “reminder that a fundamentally flawed system will continue to produce fundamentally flawed results,” we need a pretty good reason to think the results flawed or lacking in integrity.

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Russell Berman

Achtung! It’s Syria!

In the high stakes drama over the future of the Euro, Chancellor Angela Merkel’s Germany has emerged as the predominant power as a unified European economic policy begins to take shape. This was not always the case. Not long ago, French President Nicolas Sarkozy tried to promote an alternative strategy of higher spending and less austerity; now Sarkozy has become Merkel’s junior partner, dependent on her political support in his bid for reelection. British Prime Minister David Cameron too has been pushed aside over the question of taxing financial transactions. American efforts to influence European policy have also fallen flat: Secretary of the Treasury Timothy Geithner’s attempts to lecture the Europeans had little impact, beyond the damage he did to his own credibility.

The shape of the unified European economic policy has become unmistakably German: structural reforms to restrain spending—the so-called Schuldenbremse—plus austerity measures and the prospects of higher taxation. Merkel has won the game.

Meanwhile the future of a unified European foreign policy is also coming into focus. It too will be defined by Germany, and it will therefore display some of the structural features of German history and Germany’s place in Europe. Understanding these elements is crucial to gauging the prospects for Europe’s future role on the world stage.

Mention of German history immediately conjures up the dark side of its past, like the world wars, Hitler, and the Holocaust. Opponents of Merkel’s economic agenda have been quick to attack her with Nazi symbolism. Yet most of the European public has recognized the irrelevance of this name-calling by anti-German protestors in the streets of Athens. Since World War II, Germany has developed a profound sense of its responsibility for past crimes and has matured into a stable liberal democracy.

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Daniel Pipes

Tragedy looms as Iraqi authorities threaten by April 30 to expel 3,400 Iranians, members of the Mujahedeen-e Khalq. MeK members rightly fear for their lives if pushed across the border for the Iranian regime criminalizes membership in the MeK and abominates the organization, its determined foe.

Some background: Saddam Hussein allied with the MeK (also known as the People’s Mujahedeen Organization of Iran, or PMOI) against their common enemy in Tehran. Following the U.S.-led conquest of Iraq in 2003, MeK members living in Iraq acquired “protected persons” status and entered a political limbo, neither friend nor enemy of the occupying powers. With the gradual withdrawal of U.S. troops and increasingly close ties between the Iraqi and Iranian governments, MeK circumstances worsened to the point that in April 2011 Iraqi troops attacked Camp Ashraf, its Iraqi home since 1986, killing 34 people and injuring 325.

Cooler heads prevailed after this dangerous flare-up. With U.S. government approval, Baghdad signed a Memorandum of Understanding (MoU) with the United Nations in December 2011. In it, the government of Iraq committed to the relocation of Camp Ashraf (renamed Camp New Iraq) residents to a temporary transit facility, where the United Nations High Commissioner for Refugees (UNHCR) would begin the process of transiting MeK members in Iraq to refugee status, a necessary first step to resettle them outside Iraq.

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Russ Roberts

The insanity of health insurance

I just received a lovely email from my old friend, Donna Brazile. OK, we’re not old friends. For some reason she has decided to put me on her email list. She writes:

This week, the Senate votes on a GOP amendment that would let your employer decide what health care you can receive. If they morally object to birth control, it’s gone. If some corporation thinks cancer screening is too expensive, forget it.

This amendment is dangerous, and the people pushing it need to lose their jobs.

It is insane that we get our health care from our employers. That happens because we have given a tax advantage to in-kind compensation such as health care. It’s a horrible idea and it leads people to complain about our employers deciding what health care we can receive. Our employers are just a conduit for government mandates, rent-seeking and inefficiency related to health care. What the government has done is tax-advantage health care via employers and then tell them what has to be covered. So the real outrage is that because of this, the government mandates the mix of my compensation package, biasing it toward a luxury health-care package that is the result of special interest clamoring.

Insane.

The people who think it’s normal–the ones who work in the big white domed building downtown from where I live–should lose their jobs.

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Fouad Ajami

Fouad Ajami on Syria (CNN)

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Benjamin Wittes

It is always an awkward spectacle when a court has to climb down, having issued an opinion that it has no real power to effectuate. That’s what has now happened in the British Court of Appeals in the case of Yunus Rahmatullah. The opinion, which came down today, is a faintly-embarrassing retreat from the judicial arrogance with which this case began. The Rahmatullah case began with a roar, but it ends with a whimper.

Rahmatullah, you’ll recall, is the Pakistani detainee held at Bagram by U.S. forces but who was captured by British forces in Iraq in 2004 and transferred to American custody. Back in December, as Bobby explained at the time, the British court ruled that he was being unlawfully detained and issued a habeas writ compelling the British government to seek his return so that he could be freed. In that opinion, the judges were making a statement of sorts–a statement of impatience with supposed American lawlessness and with the war paradigm for counterterrorism. They were ordering the British government, on pain of contempt, to confront these evils, at least as to this one detainee.

The decision, as I described in this post, created a real diplomatic problem. British officials–who actually want nothing to do with Rahmatullah–were forced to make significant efforts to free him. American officials, meanwhile, were placed in a bizarre position too. To fail to move expeditiously to free Rahmatullah potentially subjected the government and officials of a closely allied country to serious legal problems before their own courts. On the other hand, the British requests clearly didn’t reflect anything more than legal compulsion, and there is something offensive about the idea that the United States would have to free a detainee because of the order of a foreign court in a case to which the United States is not even a party and in which reaked of America-bashing. And on the third hand, there were some additional, uh, complications that militated towards a release: The United States was, in fact, party to a memorandum of understanding with the British that suggested that the British could have Rahmatullah back if they wanted him–as officials were now, under court order, pretending to do. And our own Detainee Review Board in Afghanistan had ruled that while Rahmatullah was lawfully detained, he might be transferred to Pakistan safely were appropriate security arrangements made.

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