Monday, March 16, 2015

Obama Can’t Force His Iran Deal on the Country without Congress’s Consent


Having the U.N. Security Council bless a deal wouldn’t make it binding under our Constitution.


by ANDREW C. MCCARTHY
March 14, 2015 4


Hassan Rouhani and Barack Obama

So, as we warned earlier this week, the international-law game it is.

It is no secret that Barack Obama does not have much use for the United States Constitution. It is a governing plan for a free, self-determining people. Hence, it is littered with roadblocks against schemes to rule the people against their will. When it comes to our imperious president’s scheme to enable our enemy, Iran, to become a nuclear-weapons power — a scheme that falls somewhere between delusional and despicable, depending on your sense of Obama’s good faith — the salient barrier is that only Congress can make real law.

Most lawmakers think it would be a catastrophe to forge a clear path to the world’s most destructive weapons for the world’s worst regime — a regime that brays “Death to America” as its motto; that has killed thousands of Americans since 1979; that remains the world’s leading state sponsor of jihadist terrorism; that pledges to wipe our ally Israel off the map; and that just three weeks ago, in the midst of negotiations with Obama, conducted a drill in which its armed forces fired ballistic missiles at a replica U.S. aircraft carrier.

This week, 47 perspicuous Republican senators suspected that the subject of congressional power just might have gotten short shrift in Team Obama’s negotiations with the mullahs. So they penned a letter on the subject to the regime in Tehran. The effort was led by Senator Tom Cotton (R., Ark.), who, after Harvard Law School, passed up community organizing for the life of a Bronze Star–awarded combat commander. As one might imagine, Cotton and Obama don’t see this Iran thing quite the same way.

There followed, as night does day, risible howls from top Democrats and their media that these 47 patriots were “traitors” for undermining the president’s empowerment of our enemies. Evidently, writing the letter was not as noble as, say, Ted Kennedy’scanoodling with the Soviets, Nancy Pelosi’s dalliance with Assad, the Democratic party’s Bush-deranged jihad against the war in Iraq, or Senator Barack Obama’s own back-channel outreach to Iran during the 2008 campaign. Gone, like a deleted e-mail, were the good old days when dissent was patriotic.

Yet, as John Yoo observes, the Cotton letter was more akin to mailing Ayatollah Khamenei a copy of the Constitution. The senators explained that our Constitution requires congressional assent for international agreements to be legally binding. Thus, any “executive agreement” on nukes that they manage to strike with the appeaser-in-chief is unenforceable and likely to be revoked when he leaves office in 22 months.
For Obama and other global-governance grandees, this is quaint thinking, elevating outmoded notions like national interest over “sustainable” international “stability” — like the way Hitler stabilized the Sudetenland. These “international community” devotees see the Tea Party as the rogue and the mullahs as rational actors.

So, you see, lasting peace — like they have, for example, in Ukraine — is achieved when the world’s sole superpower exhibits endless restraint and forfeits some sovereignty to the United Nations Security Council, where the enlightened altruists from Moscow, Beijing, and Brussels will figure out what’s best for Senator Cotton’s constituents in Arkansas. This will set a luminous example of refinement that Iran will find irresistible when it grows up ten years from now — the time when Obama, who came to office promising the mullahs would not be permitted to acquire nuclear weapons, would have Iran stamped with the international community seal of approval as a nuclear-weapons state.

Down here on Planet Earth, though, most Americans think this is a bad idea. That, along with an injection of grit from the Arkansas freshman, emboldened the normally supine Senate GOP caucus to read Tehran in on the constitutional fact that the president is powerless to bind the United States unless the people’s representatives cement the arrangement.

Obama, naturally, reacted with his trusty weapon against opposition, demagoguery: hilariously suggesting that while the Alinskyite-in-chief had our country’s best interests at heart, the American war hero and his 46 allies were in league with Iran’s “hardliners.” (Yes, having found Muslim Brotherhood secularistsal-Qaeda moderates, and Hezbollah moderates, rest assured that Obama is courting only the evolved ayatollahs.) When that went about as you’d expect, the administration shifted to a strategy with which it is equally comfortable, lying.

Obama’s minions claimed that, of course, the president understands that any agreement he makes with Iran would merely be his “political commitment,” not “legally binding” on the nation. It’s just that Obama figures it would be nice to have the Security Council “endorse” the deal in a resolution because, well, that would “encourage its full implementation.” Uh-huh.

Inconveniently, the administration’s negotiating counterpart is the chattiest of academics, Iranian foreign minister Mohammad Javad Zarif. Afflicted by the Western-educated Islamist’s incorrigible need to prove he’s the smartest kid in the class — especially a class full of American politicians — Zarif let the cat out of the bag. The senators, he smarmed, “may not fully understand . . . international law.”

According to Zarif, the deal under negotiation “will not be a bilateral agreement between Iran and the U.S., but rather one that will be concluded with the participation of five other countries, including all permanent members of the Security Council, and will also be endorsed by a Security Council resolution.” He hoped it would “enrich the knowledge” of the 47 senators to learn that “according to international law, Congress may not modify the terms of the agreement.” To do so would be “a material breach of U.S. obligations,” rendering America a global outlaw.

This, mind you, from the lead representative of a terrorist regime that is currently, and brazenly, in violation of Security Council resolutions that prohibit its enrichment of uranium.

Clearly, Obama and the mullahs figure they can run the following stunt: We do not need another treaty approved by Congress because the United States has already ratified the U.N. charter and thus agreed to honor Security Council resolutions. We do not need new statutes because the Congress, in enacting Iran-sanctions legislation, explicitly gave the president the power to waive those sanctions. All we need is to have the Security Council issue a resolution that codifies Congress’s existing sanctions laws with Obama’s waiver. Other countries involved in the negotiations — including Germany, Russia, and China, which have increasingly lucrative trade with Iran — will then very publicly rely on the completed deal. The U.N. and its army of transnational-progressive bureaucrats and lawyers will deduce from this reliance a level of global consensus that incorporates the agreement into the hocus-pocus corpus of customary law. Maybe they’ll even get Justice Ginsburg to cite it glowingly in a Supreme Court ruling. Voila, we have a binding agreement — without any congressional input — that the United States is powerless to alter under international law.

Well, it makes for good theater . . . because that is what international law is. It is a game more of lawyers than of thrones. In essence, it is politics masquerading as a system governed by rules rather than power, as if hanging a sign that says “law” on that system makes it so.  

At most, international law creates understandings between and among states. Those understandings, however, are only relevant as diplomatic debating points. When, in defiance of international law, Obama decides to overthrow the Qaddafi regime, Clinton decides to bomb Kosovo, or the ayatollahs decide to enrich uranium, the debating points end up not counting for much.

Even when international understandings are validly created by treaty (which requires approval by two-thirds of the Senate), they are not “self-executing,” as the legal lexicon puts it — meaning they are not judicially enforceable and carry no domestic weight. Whether bilateral or multilateral, treaties do not supersede existing federal law unless implemented by new congressional statutes. And they are powerless to amend the Constitution.

The Supreme Court reaffirmed these principles in its 2008 Medellin decision (a case I described here, leading to a ruling Ed Whelan outlined here). The justices held that the president cannot usurp the constitutional authority of other government components under the guise of his power to conduct foreign affairs. Moreover, even a properly ratified treaty can be converted into domestic law only by congressional lawmaking, not by unilateral presidential action.

Obama, therefore, has no power to impose an international agreement by fiat — he has to come to Congress. He can make whatever deal he wants to make with Iran, but the Constitution still gives Congress exclusive authority over foreign commerce. Lawmakers can enact sanctions legislation that does not permit a presidential waiver. Obama would not sign it, but the next president will — especially if the Republicans raise it into a major 2016 campaign issue.

Will the Security Council howl? Sure . . . but so what? It has been said that Senator Cotton should have CC’d the Obama administration on his letter since it, too, seems unfamiliar with the Constitution’s division of authority. A less useless exercise might have been to CC the five other countries involved in the talks (the remaining Security Council members, plus Germany). Even better, as I argued earlier this week, would be a sense-of-the-Senate resolution: Any nation that relies on an executive agreement that is not approved by the United States Congress under the procedures outlined in the Constitution does so at its peril because this agreement is likely to lapse as early as January 20, 2017. International law is a game that two can play, and there is no point in allowing Germany, Russia, and China to pretend that they relied in good faith on Obama’s word being America’s word.

It is otherworldly to find an American administration conspiring against the Constitution and the Congress in cahoots with a terror-sponsoring enemy regime, with which we do not even have formal diplomatic relations, in order to pave the enemy’s way to nuclear weapons, of all things. Nevertheless, Republicans and all Americans who want to preserve our constitutional order, must stop telling themselves that we have 
hit a bottom beneath which Obama will not go. This week, 47 senators seemed ready, finally, to fight back. 
It’s a start.

— Andrew C. McCarthy is a policy fellow at the National Review Institute. His latest book is Faithless Execution: Building the Political Case for Obama’s Impeachment.

Salt in our race wounds

By Linda Chavez
http://nypost.com/
March 13, 2015


Attorney General Eric Holder speaks at the Justice Department in Washington, Wednesday, March 4, 2015, about the Justice Department’s findings related to two investigations in Ferguson, Mo. (AP Photo/Carolyn Kaster)

Another shooting has taken place in Ferguson, Mo. — and this time, two police officers were the victims.
The violence should not come as a surprise, given the ugly tone set by the nation’s top law-enforcement officer, Attorney General Eric Holder.
The most divisive attorney general since Richard Nixon’s John Mitchell, Holder has fanned the flames of racial grievance for much of his tenure.
In his early days in office, he called America “a nation of cowards” on racial issues.
Last week, his target was the Ferguson Police Department. Holder promised, “We are prepared to use all the power that we have…to ensure that the situation changes there.”
No, he didn’t intend for someone to try to kill two police officers by shooting them in the face. But by portraying the police department as racist to the core, he contributed to the culture of vengeance that led to the shooting.
There is no doubt that the Ferguson PD has major problems and needs reform. As the 105-page Justice Department report issued last week documents, city officials have seen the police department largely as a cash cow:
“The City budgets for sizeable increases in municipal fines and fees each year, exhorts police and court staff to deliver those revenue increases, and closely monitors whether those increases are achieved.”
The main sources of those revenues are criminal and civil fines. The policy encourages police to make more traffic stops, conduct more searches, issue more tickets and make more arrests and the courts to issue more warrants and fines to drive up revenues.
It’s a lousy policy — but one not unique to Ferguson.
If the Justice Department were truly serious about changing the abuses more broadly, it would have conducted a larger study that looked at similar patterns in other localities — including largely white tourist towns, where traffic tickets are often a huge source of revenue.
But Holder isn’t interested in the insatiable appetite of government for more revenues. He came to Ferguson in search of racism — and of course, he found it.
It was predestined from the moment President Barack Obama announced he was sending Holder to Ferguson to investigate the shooting of Michael Brown last August.
Perhaps the greatest irony of the Justice Department’s investigation is that it cleared the Ferguson police officer who shot Brown, Darren Wilson, of any wrongdoing in Brown’s death.
Obama, Holder and many of the liberal media were quick to suspect that Wilson, who is white, shot Brown because he was black.
For months after the shooting, protesters around the country adopted the mantra “hands up, don’t shoot” to describe Brown’s actions before he was fatally shot by Wilson.
Now the Justice Department’s investigation has concluded that nothing of the sort happened.
According to all available forensic evidence and credible witnesses, Brown attacked the police officer and was in the process of charging toward him when Wilson fired the fatal shots.
Racism wasn’t responsible for Michael Brown’s death. Brown’s own behavior precipitated his unfortunate end.
Blaming racism for every statistical disparity that exists between whites and blacks — from education to income and poverty to crime — gets us no further in solving the problems that exist for many black Americans.
Nor does it get us closer to wiping out the racial prejudices that do, unfortunately, still exist among a minority of the American population.
But those prejudices — examples of which were found by the Justice Department among police officers in Ferguson — are not unique to whites.
In every study of racial attitudes among Americans, whites are no likelier to harbor prejudices against people of other races than are blacks, Hispanics or Asians.
Eric Holder will leave office as early as next week if the Senate confirms Loretta Lynch to be his successor. It will be none too soon.
A man who could have done much to improve race relations will instead leave behind a sorry legacy of inflaming racial tensions when the nation most needed a healer.
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Sunday, March 15, 2015

Fueling cop-hate: How politicians fan the flames


March 13, 2015
Fueling cop-hate: How politicians fan the flames
Investigators survey the scene outside the Ferguson police station where two police officers were shot.Photo: EPA
Government-fueled cop hatred has claimed more victims. Two St. Louis-area police officers were shot Wednesday night during a protest outside the Ferguson, Mo., police department, one in the face, the other in the shoulder.
Both are expected to survive, unlike the two New York City police officers assassinated in December.
Such violence is the sadly predictable outcome of the lies about the police that government officials and the media have stoked for the last year.
US Attorney General Eric Holder has done all he can to keep tensions at a boiling point in Ferguson.
This, though his own Justice Department demolished the hoax that a pacific Michael Brown was killed in cold blood by Police Officer Darren Wilson in August.
The Justice report on the Brown shooting, released last week, demolished every myth around the shooting.
It confirmed virtually everything Office Wilson had testified to, including that Brown had attacked Wilson, tried to grab his gun, then charged at Wilson after the officer exited his car.
The iconic “Hands up, don’t shoot” slogan? Most certainly a fiction.
The report explained why Brown lay for four hours in the street before being taken away: “Kill the cops”-screaming protesters kept barging in on the crime-scene investigation, while gunfire rang around the perimeter. The detectives had to constantly put their work on hold while waiting for more backup.
The Brown report should have forced a massive reconsideration of the virulent anti-law-enforcement campaign that sprang up in the wake of the shooting.
Instead, Holder paved the way for the report’s marginalization by calling, a few days before its release, for a lower standard of proof for civil-rights cases.
Implication: Only an artificially high standard of proof prevented Justice from prosecuting Wilson.
This implication was utterly false. Wilson couldn’t be convicted under any standard of proof, since there is no credible evidence against him.
Yet the media ran with this “burden of proof” angle and buried the report almost as soon as it was released.
Meanwhile, in a stunning bait-and-switch, Holder presented a new report to justify last year’s riots and the ongoing anti-police campaign.
That report claimed that the Ferguson Police Department engages in a “pattern or practice” of violating blacks’ civil rights.
Where the Brown report was measured and thorough, this second report was disingenuous and agenda-driven.
Its most disturbing allegations consisted of anecdotes of apparently unconstitutional stops and arrests by officers acting boorishly toward suspects.
If those anecdotes are true and represent standard procedure in the Ferguson PD, then Ferguson’s force is abysmally trained, with little understanding of the Constitution and a great need for a refresher in courtesy and respect.
But after the evisceration of the Brown hoax, it‘s folly to take stories against the police at face value. Yet there’s no indication that the Justice lawyers double-checked any victim accounts.
Moreover, though the report calls such apparently bad stops “frequent,” it makes no attempt to quantify them in relation to the overall number of stops and arrests, and so establish a “pattern or practice” of civil-rights violations.
The rest of the report goes downhill from there. Its alleged statistical proof of race-based stops and arrests wouldn’t earn its authors a D in Statistics 101, since it lacks a valid benchmark for its stop and arrest data.
That benchmark would include, at a bare minimum, crime rates. But the report assumes, contrary to incontrovertible fact, that black and white crime rates are identical, and that therefore any racial disparity in police stops and arrests must be the result of racism.
As for the claim that the Ferguson PD uses traffic enforcement to generate city revenue, that doesn’t distinguish Ferguson from the vast majority of US towns and cities.
More important, Justice provides no argument that such a motive results from racism, rather than cupidity.
Justice’s only alleged evidence for systemic racism is a half-dozen racist jokes e-mailed by a court clerk and two police supervisers.
While deplorable, such e-mails don’t come close to proving that racial animus drives Ferguson’s traffic-fee system.
President Obama echoed the Holder spin two days after the reports’ release. “We may never know exactly what happened” to Michael Brown, he told students at South Carolina’s Benedict College.
Actually, we do know what happened. Numerous credible witnesses and the forensic evidence confirmed Wilson’s account.
But Obama presented the case as a subtle standard-of-proof problem: “The finding that was made was that it was not unreasonable to determine that there was not sufficient evidence to charge Officer Wilson.”
He then blasted the Ferguson PD: The overwhelmingly white force was “systematically” biased, he said, placing minorities under its care into an “oppressive and abusive situation.”
Such rhetoric guaranteed that the purges of Ferguson officials in the wake of the second Justice report would fail to satisfy the protesters.
Wednesday, before the shootings, Ferguson’s police chief announced his resignation, following in the steps of the city manager and municipal judge. The protesters wanted more, though what exactly is uncertain.
At least one in their midst, however, wanted what protesters in New York had chanted before the assassination of Officers Rafael Ramos and Wenjian Liu: “What do we want? Dead cops.”
By now, the media and politicians are on ample notice that their crusade against law enforcement carries deadly risks. There’s no more excuse for inflaming hatred against the police, especially when the allegations used to inflame that hatred are proven untruths.
Officers put their lives on the line every day to protect law-abiding members of poor communities. Increasingly, those officers are at risk not just from thugs but from the rhetoric emanating from the highest reaches of government.
Heather Mac Donald is a contributing editor to the Manhattan Institute’s City Journal and the author of “Are Cops Racist?”
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AWOL from the Summer of Love