I Am the Law

Comey v. Trump: Legal Anatomy of a Political Scandal

Let’s start by stating the obvious. The hysteria surrounding the now famous memo attributed to Jim Comey – reportedly recounting Pres. Trump’s asking him to quash a rumored FBI probe of Gen. Michael Flynn’s contacts with Russian Ambassador Sergey Kislyak – is just the latest iteration of a politically motivated witch hunt.

No human being – and certainly no government official – could withstand the microscopic scrutiny attending Trump’s every word and deed. But whipping up a frenzy whenever the chattering class thinks he’s blundered makes for snarky headlines and sexy atmospherics, driving clicks and creating constant theater.

And, more fundamentally, it furthers the end game of liberals and their mainstream media collaborators (one and the same): unseating a duly elected president by forcing him to justify a presumptively valid result they don’t like and refuse to accept, rather than their proving it tainted. That’s a brazen effort to subvert the democratic process. And, if successful, it will set a dangerous precedent long outlasting the reign of Donald J. Trump.

All that said, it doesn’t necessarily follow that the Comey allegations are legally insubstantial. The operative obstruction of justice statutes, sections 1503 and 1512 of the federal criminal code, are stunningly vague and broad. And the key concept at their root – acting with a “corrupt” purpose – is notoriously elusive. So elusive that the Supreme Court has limited its scope at least three times in my 25 years of practice.

It’s easy enough, then, to bring an obstruction charge. Making it stick is another story.

In a hypothetical criminal case, Trump would presumably deny that he asked Comey to scotch the Flynn investigation. Alternatively, Trump would argue that even if he did make the request, that’s all it was – a mere request lacking a corrupt purpose. The prosecution, on the other hand, would paint the request as an implicit threat and a corrupt attempt to impede.

As for the memo itself, it likely – though not definitively – ranks as inadmissible hearsay. For that reason, and since no one else reportedly heard the conversation (potentially by Trump's own design), Comey would have to take the stand to relate it. So the case would come down to a he said/he said swearing contest.

But Comey’s testimony would still be necessary even if the memo were ruled admissible. The request ascribed to Trump – assuming its occurrence – is cryptic, ambiguous and subject to competing interpretations. Comey’s impression of the request – whether Trump’s demeanor and tone suggested he was asking or telling Comey what to do – thus provides some insight into Trump’s state of mind (innocent vs. corrupt) when making it, an inherently circumstantial inquiry. And Comey’s impression probably can’t be gleaned from a cold memo alone.

Precisely because Trump’s intent must be proved circumstantially, the prosecution would urge the jury to infer it not only from the request itself, but also from the Jan. dinner where Trump reportedly sought a loyalty pledge and Comey’s firing several weeks after tacitly rebuffing the request. Too, the prosecution would stress Trump’s shifting explanations in the wake of the firing – some admitting that the Russia probe played a role – much as the travel ban challengers claim his stump statements show discriminatory intent.

Together, the prosecution would argue, the explanations and events just rehearsed – the Jan. dinner, the request to drop the investigation and the firing not long after – form a straight line pointing to a corrupt purpose and conviction. Conversely, Trump might – and should if it comes to it – try to discredit Comey by highlighting his confessed nausea over possibly swaying the election, and arguing that he’s trying to make up for his ostensible improprieties by working to take Trump down.

How this all plays out is anyone’s guess. But impeachment and criminal prosecution are more than fanciful prospects – especially in the current political climate.

Alternatives Aplenty: A Quick Response to Mr. Kerry

Secretary Kerry says critics of the Iran deal offer no “realistic alternatives.”

Here are just a few that immediately spring to mind. It took, oh, all of five minutes to think them up.

1. Support regime change in Iran by, for example, empowering the Green Movement. Obama had a golden opportunity in 2009, when the Greens were flooding the streets of Tehran and practically begging the US for help. But, busy making symbolic pronouncements about closing Abu Ghraib, the president whiffed. As usual.

2. Demand as a precondition to any deal that Iran recognize Israel’s right to exist, renounce its calls for her destruction and – wait for it – stop sponsoring global terror. Kerry and Obama dismissed those prerequisites as “unrealistic.” What’s unrealistic about behaving like responsible members of the world community and observing the basic norms of civilized society? I guess that's asking too much.

3. If all else fails, including augmenting the sanctions already in place, then – God forbid – bomb Iran’s nuclear facilities into oblivion. A top American general assured Congress last week we have the capacity to do just that. But as Tehran well knows, Obama has effectively taken the military option off the table, robbing us of any real leverage or credible deterrent threat.

Bending over backwards to appease and enable a cornered, desperate foe when you hold all the cards. Only in Obamaworld, where war is peace, freedom is slavery and ignorance is strength.

How else to describe an administration that insists a deal with Israel's sworn enemy makes the Jewish state "safer” when Israel itself says exactly the opposite? Or a glorified “community organizer,” whatever that means, who thinks he’s a shrewder diplomat than Henry Kissinger – and doesn’t mind saying so?

Paper tigers indeed.

Barack Obama: Mideast Hypocrite

Just wait until our Islamophile-in-Chief demands that Israel surrender swaths of the West Bank and the Golan Heights – with Hezbollah and Assad, proxies for a newly emboldened and soon-to-be-enriched Iran, sitting on its doorstep. That’s sure to be the next move in Obama’s quest to reshape the world to suit his fancy. And it promises to be a rich one.

I hope Netanyahu or his successor laughs in Obama’s face. This administration has forfeited any phantom right to impose a “two-state solution” by selling out and endangering our closest and only democratic ally in the Mideast while appeasing and empowering Israel’s arch enemy and its terror clients directly bordering her. If this is how we treat our friends, I’d hate to see how we handle our foes.

Even this president can’t have it both ways, infusing Israel’s nemesis with oil money and weapons while insisting that the Jewish state relinquish its territorial buffer in the name of a mythical peace. That would be akin to a UN ultimatum that JFK stand down at the height of the Cuban missile crisis, with Soviet bombs 90 miles from striking American soil. Let’s see if BHO has the nerve to try it.

Make no mistake, today is a dark day in the history of Israeli-American affairs – a black mark on a long-running, mutually beneficial strategic and moral partnership. In one fell swoop, Washington has taken a sledgehammer to the vaunted “special relationship,” straining if not shattering the so-called “unbreakable bond” and emphatically belying the trope that the White House “has Israel’s back.”

Obama has Israel's back alright. How else could he manage to stick a knife in it?

I’ve said it before and I’ll say it again: shame on any Jew who claims to care about the future of the Zionist project and continues to apologize for this president.

It’s long past time for Jews interested in Israel’s survival to desert the Democratic Party en masse. It’s our only shot at pushing Obama’s Mideast policy, and that of his heir apparent, in a saner direction – and our only chance to get them to stop taking our vote for granted.

Sticks and Stones and the Emerging Accord with Iran

The Obama administration says Tehran is only posturing when its ostensibly moderate president takes to the streets with hordes of ordinary Iranians chanting “Down with America!” and “Death to Israel!”

Actions speak louder than words, the administration insists. And in the event, the mullahs seem poised to accept what Obama will tout as a milestone nuclear freeze negotiated by the P5+1.

The bluster that continues to emanate from Tehran on the eve of the deal is just that, Obama maintains. It shouldn’t be taken seriously, and amounts to mere face-saving with the Iranian public.

Much the same was said about the Nazis at Munich, where Chamberlain infamously applauded Hitler as a man you could rationally engage.

Of course, word and deed often diverge in matters of diplomacy. And not every terror regime will behave as suicidally as the Third Reich.

But one difference between the administration’s position and mine is that Obama’s willing to take the mullahs on faith and give them the benefit of the doubt – even though they’ve done less than nothing to earn it.

I, on the other hand, am perfectly happy to take them at their word. And all Jews – indeed sensible people of any origin – should follow suit.

That is the lesson of history. That is the lesson of “Never Forget.” And it is a lesson that Obama, despite dubbing himself the “first Jewish president,” either does not comprehend or studiously ignores.

For the sake of Israel, America and the world at large, I hope Obama’s rosy view of Iranian intentions proves right and my dim one wrong. I hope his trust is truly verifiable, and something more than misplaced naivete. The world can’t afford an errant bet on his part.

And in the end, that’s all this deal distills to: a bet that the ayatollahs’ 36-year track record makes demonstrably unlikely to pay off in peace.

Yet the White House expects us to blink that record away because there’s a new sheriff in Washington – an exuberant idealist full of cockeyed optimism and an unshakable belief in his ability to succeed where generations have failed by sheer force of his own charisma.

The hubris is breathtaking.

This is a case where perception is reality, and the eyes – and ears – distinctly don’t lie. It now falls to Congress, by refusing to lift the sanctions that brought Tehran to the table in the first place, to step in and vindicate the lessons that appear lost on this administration. Let’s cross our fingers that, for once, it has the courage to rise to the occasion.

Edward Snowden: Hang 'Em High

AS SOME READERS MAY KNOW, I DOUBLE AS A LEGAL COMMENTATOR FOR THE VERIZON FiOS1/REGIONAL NETWORK NEWS PROGRAM RICHARD FRENCH LIVE. IT’S AN HOUR-LONG NEWS MAGAZINE AND TALK SHOW AIRING WEEKNIGHTS AT SIX. I APPEAR MOST WED. EVENINGS AS A LEGAL PANELIST FOR THE SHOW’S “ON THE DOCKET” FEATURE, A ROUND TABLE DISCUSSION OF CURRENT LEGAL EVENTS THAT USUALLY RUNS THE WHOLE HOUR.

FOR A RECENT BROADCAST I WAS ASKED TO MAKE A ONE-MINUTE CASE FOR PROSECUTING EDWARD SNOWDEN AND SENTENCING HIM HARSHLY IF CONVICTED. HERE, FOR THOSE INTERESTED, IS THE FULL TEXT OF MY PREPARED REMARKS. I ONLY MANAGED TO DELIVER ABOUT HALF OF THEM ON THE AIR.

***

EFFECTIVE INTELLIGENCE GATHERING NECESSITATES MAXIMUM SECRECY. 

EDWARD SNOWDEN TURNED THIS VERITY ON ITS HEAD, COMPROMISED OUR NATIONAL SECURITY AND BROKE FEDERAL LAW – CHIEFLY THE 1917 ESPIONAGE ACT – WHEN HE STOLE CLASSIFIED DEFENSE AND INTELLIGENCE INFORMATION AND BRAZENLY LEAKED IT THROUGH THE MEDIA.

THERE IS NO REAL DISPUTE ABOUT ANY OF THIS.

WHEN HE WENT TO WORK AS A GOVERNMENT CONTRACTOR, SNOWDEN PROMISED, AS A CONDITION OF RECEIVING NATIONAL SECURITY CLEARANCE, NOT TO DISCLOSE CLASSIFIED DEFENSE INFORMATION TO UNAUTHORIZED OUTSIDERS.

SNOWDEN NOT ONLY THUMBED HIS NOSE AT THAT PLEDGE BUT BRAGGED ABOUT DOING IT. IN A JUNE 2013 VIDEO INTERVIEW, HE PRACTICALLY CROWED THAT HE HAD GIVEN CONFIDENTIAL DOCUMENTS, PROMINENTLY MARKED “TOP SECRET,” TO REPORTERS WITH THE WASHINGTON POST AND THE GUARDIAN.

THAT DAMNING CONFESSION, IN THE DEFENDANT’S OWN WORDS, MAKES THIS AN OPEN AND SHUT CASE. SNOWDEN IS GUILTY BEYOND ANY POSSIBLE DOUBT.

IT IS NO ANSWER THAT SNOWDEN AND HIS APOLOGISTS FANCY HIM SOME WHITE KNIGHT OR FREEDOM CRUSADER WITH LOFTY – EVEN HEROIC – MOTIVES. THERE IS NO FIRST AMENDMENT OR WHISTLEBLOWER DEFENSE TO AN ESPIONAGE ACT VIOLATION.

IF SNOWDEN QUESTIONED THE LEGALITY OR WISDOM OF THE NSA SURVEILLANCE PROGRAM, HE HAD AMPLE RECOURSE THROUGH THE COURTS, THE BALLOT BOX AND CONVENTIONAL LAW ENFORCEMENT CHANNELS.

WHAT HE WAS NOT FREE TO DO WAS RESORT TO SELF-HELP – TO TAKE THE LAW INTO HIS OWN HANDS. THAT IS A RECIPE FOR ANARCHY – NOT THE DEMOCRACY SNOWDEN AND HIS COLLABORATORS CLAIM TO PRIZE.

WITH THAT IN MIND, SNOWDEN’S ONLY CHANCE TO GET OUT FROM UNDER IS TO CONVINCE HIS JURY TO NULLIFY THE LAW – TO DISREGARD THE ESPIONAGE ACT RATHER THAN APPLY IT AS WRITTEN. BUT THAT WOULD MERELY ADD INSULT TO INJURY, ENABLING THE DEFENDANT TO INSTIGATE A SECOND BREACH OF LAW WITHOUT CONSEQUENCE.

EDWARD SNOWDEN IS NO DANIEL ELLSBERG OR DEEP THROAT, AND THE NSA SURVEILLANCE PROGRAM IS NO ROUTINE, IF HIGH LEVEL, BURGLARY JOB. IT IS AN INTRICATE AND COMPREHENSIVE NATIONAL SECURITY SCHEME, VETTED AND APPROVED AT THE GOVERNMENT’S TOP ECHELONS, AND PRESUMED LEGAL UNLESS AND UNTIL A COURT OF COMPETENT JURISDICTION SAYS OTHERWISE. SNOWDEN CANNOT BYPASS THE TRADITIONAL MEANS OF TESTING FEDERAL PROGRAM LEGALITY – JUDICIAL REVIEW – BY ANOINTING HIMSELF JUDGE, JURY AND EXECUTIONER.

Back to the Future with Abbas and the PA

Last month -- Dec. 17 to be exact -- a group called the Institute of Jewish Humanities honored me as its Criminal Lawyer of the Year.

That's not especially newsworthy.

But the Palestinian Authority's failed bid for statehood, along pre-67 lines, at the UN? Its joining the International Criminal Court and professed aim of hauling Bibi Netanyahu before the presiding marsupials as a war criminal? Those are headline grabbers for sure.

In light of these events, I thought I'd share my brief but timely acceptance speech at the IJH dinner, held at lower Manhattan's Museum of Jewish Heritage -- in the shadow of both Ground Zero and the Statue of Liberty. I hope you enjoy it. Happy New Year to one and all.

***

Thank you, Jerry [Shargel], for the touching and humbling introduction. You’re always a tough act to follow, but I’ll do my level best.

I’d like to thank the Institute for honoring me with this award, and all my friends and family for being here to share it – particularly my great pal and Springsteen buddy Corey Winograd, who made the effort to come all the way from Florida. For better or worse, each and every one of you has helped mold me into who I am and what I’ve become. I couldn’t have achieved what little I have without your invaluable contributions.

Special mention goes to my wonderful parents, who set an impeccable example, taught me right from wrong and put me through school, and to my loving wife Zina, who always has my back and somehow manages to live with me every day.

It’s a blessing and a privilege to have nearly all the people I really care about here in one room. The most conspicuous absence, of course, is my late sister Gwen. I dedicate this award to her memory and inspiration. That aside, I’d be relatively contented were I to leave this earth tonight.

I’m not much of an observant Jew, but Judaism is an integral part of my identity and played a key role in shaping my career choice. I’ve always been drawn to outsiders and plucky upstarts. And throughout history, Jews have been the ultimate underdogs and scapegoats, falsely accused – like some criminal defendants – of an endless parade of horribles they had nothing to do with.

That’s true of Israel especially, and it’s one reason I’m an unrepentant Zionist. The consummate expression of Jewish perseverance and determination, Israel is a nation that’s overcome incredible odds to literally rise from the sand, willing itself into an industrial, technological and military powerhouse.

Now in my experience the secular world may tolerate Jews when we’re timid and weak, but not so much when we grow bold and strong. So Israel naturally takes a lot of flak these days, some of it, unfortunately, from Jews themselves. With all the invective hurled in Israel’s direction, it’s easy to look past the country’s humble origins and take its dynamo status for granted. It’s easy to forget that it wasn’t always this way – that Israel wasn’t always the economic and political marvel it is today. It’s easy to lose sight of the challenges Israel had to meet, the struggles it had to face and the obstacles it had to scale to get where it is.

Hard as it seems to believe from what we hear and read, Israel’s continued existence and success are by no means foregone conclusions. The country was founded on the lofty ideals of tikkun olam – the healing of the world – and serving as a light unto nations. To be sure, it has sometimes fallen short of those noble aspirations. And like any free society, it’s far from perfect. But it is one of the world’s only true democracies, getting it right much more often than not.

And I may be preaching to the choir here, but Israel still needs our help and support – perhaps more than ever given the surge in global anti-Semitism and the country’s mounting isolation. I’m not talking about mere financial support. I’m talking about a more important kind of support. I’m talking about ethical, intellectual and spiritual support.

I’m talking about forcefully countering scurrilous blood libels that liken Zionism to Nazism. I’m talking about vigorously rejecting false moral equivalencies that paint a vibrant, thriving, well-meaning people with the same brush as terrorists. Terrorists who deliberately target civilians, hide their weapons in plain sight – amid homes, schools and houses of worship – and intentionally place their women and children in harm’s way. And I’m talking about doing all this vigilantly and relentlessly, whenever and wherever these canards rear their ugly heads.

So while we’re lamenting perceived injustices in Ferguson and Staten Island – while we’re championing worthy causes like marriage and racial equality – let’s pause for a moment to recall and heed a different injunction. An injunction that’s less grandiose but every bit as imperative as tikkun olam. The injunction that charity begins at home.

Thanks for coming and listening. And thanks again for the award.

Cheers.

Of The Boss and Aging Rockers

Among the silliest reviews of Bruce Springsteen's new High Hopes album -- and there are quite a few inane ones -- is Andrew Romano's "Bruce Springsteen Lowers the Bar" (The Daily Beast, Jan. 7).

Like many who write about Springsteen, the author does almost as much bragging on himself and extolling what Bruce means to him as discussing the man's music.

Did Romano really serenade his parents' dinner guests with Born in the USA tunes at age two? Or blast "Born to Run" from his car the day he got his license? Or strum "Hungry Heart" on Jersey Shore beaches to impress girls?

How Wild! How Innocent! How Rebellious!

We get it. Romano loves Bruce, and Bruce helped shape his life and inform his world view.

Who cares? I want to hear about the songs -- not lame vignettes from a routine suburban childhood.

But worse than the cloying self-involvement, Romano commits grievous sins of substance.

The hyperbole begins with the blanket assertion that, as older rockers go, "[o]nly" Bob Dylan's current work compares with Bruce's recent releases, which Romano considers "forceful," "intriguing" and "downright fantastic."

Come again? Ever heard of Neil Young? Leonard Cohen? John Hiatt? Tom Waits? Mark Knopfler? Richard Thompson? Ian Hunter? Nick Lowe? Dave Alvin? Peter Wolf? Los Lobos? Garland Jeffreys? The list goes on.

At more or less advanced ages, all these grizzled veterans produce consistently vital music that ranks with their best, rivaling anything from Dylan's later catalog -- and far eclipsing modern Springsteen.

Romano's competing claim is dogmatic and uninformed, shattering any credibility he had after his indulgent stroll down memory lane.

But that only brings us to the author's main source of despair: chagrin that High Hopes is some sort of crushing "disappointment" relative to its "lofty" predecessors, The Rising, Devils & Dust and Wrecking Ball. (Curiously unmentioned are Working on a Dream, Springsteen's worst record besides the dreadful Human Touch, and Magic, his best of the new millennium.)

Romano's consternation is misplaced and overblown. Sure, High Hopes is wildly uneven. But no more so than any other Springsteen release of the past 25 years.

Sure it has some clunkers. But worse than The Rising's faux Arab travesty "Worlds Apart"? Worse than Working's kitschy "Outlaw Pete," treacly "Queen of the Supermarket" or abrasive "Good Eye"? Worse than Wrecking Ball's insufferable "Rocky Ground," which manages to butcher gospel and mutilate rap at the same time?

Not by a long shot. And the High Hopes standouts -- "Hunter of Invisible Game," "The Wall," "Harry's Place," "Down in the Hole" and "Just Like Fire Would," among the previously unissued tracks -- are as strong as anything Springsteen has done in the last decade and more.

To quote "American Skin (41 Shots)," "It ain't no secret" that Bruce's songwriting and studio recordings have fallen off sharply over time. That's hardly the revelation that writers like Romano make it out to be.

Real fans -- and that's how Romano bills himself -- know that Springsteen hasn't cut a truly compelling album since 1987's Tunnel of Love. In fact, one could argue that his writing -- if not performing -- skills have steadily eroded since the back to back 1970s masterpieces Born to Run and Darkness on the Edge of Town, perhaps rock's greatest one-two punch. (The Beatles [Rubber Soul/Revolver] and Dylan [Highway 61 Revisited/Blonde on Blonde] might disagree.)

Of course, it's unfair to compare a (deservedly) rich and successful husband and father of 64 to a twentysomething upstart obsessively bent on creating perfect rock and roll records. And it's unrealistic to hold him to that same impossible standard today. As the man himself just told SiriusXM's E Street Radio, "If you don't figure out a different way to do it, you don't have a life."

But pretending that High Hopes represents some radical letdown after an unbroken string of triumphs? If that's your take, you haven't been listening or you're exaggerating to drive Web traffic -- no matter how big a fan you call yourself.

Upcoming SCOTUS Highlights

My brief take on some of the biggest cases of the upcoming Supreme Court term, prepared for an Al Jazeera America TV appearance:

PENDING CASES

McCutcheon v. FEC – Campaign Finance (Argument Date: 10/8/13)

In 1976’s Buckley v. Valeo, the Court held that Congress can restrict the amounts of money people directly contribute to political campaigns, but not what they independently spend on political causes. The reason: direct donations pose a greater risk of corruption.

This case asks the Court to abolish that distinction and overturn Buckley, striking down McCain-Feingold’s limits on how much, in total, individuals may donate to candidates, party committees and PACs during a given election cycle. The Court’s decision could effectively deregulate the field of campaign finance.

Possible result: Based on John Roberts’s relatively restrained approach as Chief Justice and public outcry over the recent Citizens United ruling easing restrictions on corporate political spending, it seems doubtful the Court will take this radical step.

Schuette v. Coalition to Defend Affirmative Action – Racial Preferences (Argument Date: 10/15/13)

Following up on last term’s Fisher v. Univ. of Texas – which largely declined to revisit the constitutionality of racially-oriented college admissions programs – the Court jumps right back into the affirmative action fray. This time it considers whether state voters – here, voters in Michigan – can pass referendums barring government entities from discriminating or giving preferences, in contracting, education and employment, based on race or sex. In other words, is affirmative action constitutionally required or a matter of state prerogative?

Possible result: Given the current Court’s respect for states’ rights, the passage of time since it first upheld racial preferences and the arguable erosion of their underlying rationale – remedying the effects of past discrimination – the justices may well approve Michigan’s ballot initiative. Voters in at least one other state – California – passed a similar measure a few years ago.

Town of Greece v. Galloway – Public Prayer (Argument Date: 11/6/13)

Can a small town in upstate New York open public meetings with prayers from a “chaplain of the month” – usually a Christian, though atheists and members of other faiths are allegedly eligible – without violating the First Amendment’s ban on government-sponsored religion?

A lower court said no, ruling that the practice appears to endorse a particular faith. The High Court may say yes, following a 1983 precedent, Marsh v. Chambers, that sustained a similar practice in Nebraska, where legislative sessions began with a benediction from a Presbyterian minister.

While Establishment Clause jurisprudence is a mess, this case is unlikely to clear up the confusion; most of the justices are sympathetic to increasing religion’s role in public life and Marsh’s facts are closely on point.

CASES ON THE HORIZON

Abortion Rights

If the case clears a procedural hurdle – a legal question the justices sent back to a court in Oklahoma – the Supreme Court may consider whether states can constitutionally limit the use of drugs that induce abortions. An affirmative answer could curtail Roe v. Wade.

Health Care Reform

The Court will likely hear a challenge to the Affordable Care Act’s requirement that employers provide insurance coverage for birth control – even if they object on religious grounds. Analogizing to Citizens United – where the Court warmly embraced corporate free speech under the First Amendment – the provision’s opponents argue that it infringes corporations’ putative right to religious liberty under the First Amendment’s Free Exercise and Establishment clauses.

TAKEAWAYS

This term’s docket so far – more cases will be added in the coming months – lacks the marquee value of the last two, with their blockbuster rulings on Obamacare and same-sex marriage. Still, it continues the Court’s recent trend of reaching out to decide hot-button political issues.

This trend is arguably regrettable, impairing the Court’s credibility and degrading its integrity as an institution. It undermines public confidence in the justices as neutral arbiters, making the Court seem like just another partisan branch – not the impartial guardian of law Americans have always uniquely respected and admired. In this polarized environment, with faith in government at an all-time low, that perception can’t be good for the country’s future.

Back to the Future: Obama-Syria 2013 Recalls Carter-Iran 1979

Few American foreign relations crises have been as badly mishandled as President Obama's bungling of the situation in Syria.

When it comes to the Middle East, Israel, with its superior security and intelligence capabilities, knows the reality on the ground better than anybody. It follows that America should have taken the Jewish State's cue and adopted a policy of strict abstention regarding Syria.

More precisely, we should have left the Arabs to do what Arabs do best: go on killing each other with impunity, turning their hatred inward and deflecting it away from Israeli and Western targets. After all, Arabs -- especially Muslim Arabs -- have always been their own greatest enemies in the struggle for regional supremacy.

Indeed, neutrality in Syria makes particular sense given that the radical Islamists among the rebel forces would likely be worse than the despot they aim to unseat. History, and recent experience in the wishfully dubbed "Arab Spring" countries, both confirm this bitter truth.

But Obama chose a different course. Considering the moral and legal anathema of chemical weapons, he took the dubious if defensible decision to publicly draw a "red line" against their use in Syria.

Having issued this emphatic and ill-advised injunction, it behooved Obama to follow through once Assad and his goons brazenly crossed the line, trampling it beneath their leaden feet.

Yet the President demurred, going out of his way to play down the magnitude and extent of any U.S. military response. He thus assured everyone who'd listen that our involvement would be narrowly confined to pinpoint air strikes, with ample forewarning and no American boots on the ground.

Why not post a billboard announcing the exact date and place of potential attack? That would do just as well, inviting the enemy to spirit away his offending munitions and ordnance weeks and months in advance. Telegraphing your intentions ahead of time is scarcely a recipe for operational success.

Adding insult to injury, Obama went on to punt the controversy to a skeptical Congress in a transparent bid for political cover. This approach was paradoxical if not self-contradictory. For the Constitution, at Art. I, Sec. 8, requires legislative authorization only "To declare War" -- not to carry out what the Administration bent over backwards to spin as a surgical strike of limited duration and scope.

For the coup de grace, the President then kicked the can even further down the road. Rather than make his own case for military intervention -- and risk galling defeat -- before the People's duly elected representatives, Obama rushed to embrace a toothless and naive compromise plan, floated by Vladimir Putin and the erstwhile Soviet Union as a last resort.

Why toothless and naive? Because it hinges on Assad's honestly disclosing and accounting for his regime's chemical stockpiles -- and on his good faith in surrendering them to the international community for inspection and disposal.

Yet with Obama folding so meekly at the first sign of domestic pushback, how could anyone -- let alone an Assad -- take seriously the threat of military reprisal in the event of noncompliance? The question answers itself, rendering the Russian proposal entirely self-executing and wholly ineffectual.

Thanks to the face-saving lifeline that Putin improbably threw, the President managed to luck his way out of an impossible corner into which he had gratuitously painted himself.  But his good political fortune comes at a steep national cost -- a debt that Russia and its thuggish clients, governmental and ad hoc alike, are bound to redeem in spades.

In one fell swoop, Obama's cowardly act of convenience essentially delegated American foreign policy responsibility to a rank interloper -- Putin -- and enabled Assad to claim victory on the world stage. Equally alarming, it empowered the Russian autocrat and may herald a resurgent Soviet-style state, evoking the specter of a renewed Cold War.

By abdicating leadership and relinquishing moral authority on Syria, then, Obama has hastened America's global retreat, lifting our international impotence to heights unknown since Jimmy Carter and the Iranian hostage crisis. And the consequences can only be similarly dire: emboldening our enemies, buoying the purveyors of terror, and advancing the spread of tyranny and oppression.

Like it or not, the United States is the world's policeman. And that's as it should be; the obligation comes with the territory if you aspire to superpower status, nature abhorring a vacuum. If you're not up to the task -- and Barack Obama seems to have little stomach for it -- then you ought to renounce the belt.

There's nothing inherently wrong with that option -- provided you have a post-empire vision for your country's future, as Britain and her fellow E.U. members learned belatedly. But this kind of foresight also appears to elude Mr. Obama.

In grossly botching the Syria situation, the President has compromised America's credibility and severely undermined her global standing, dropping them to 35-year lows. Desperate for approval and loath to ruffle feathers, he has weakened us in the eyes of our allies and inspired our adversaries, humiliating us in the community of nations and betraying us as a paper tiger.
 
Worse, he has abjectly disgraced the office he's privileged to hold, shaming the memory of the Roosevelts, Trumans, Kennedys, Reagans and -- wait for it -- Bushes who occupied it before him. For these reasons and so many others, Obama and his collaborators in this debacle need to go -- once and for all, and as soon as humanly practicable.

A Short, Sober Look at the NSA Surveillance Controversy

The revelation that the NSA is monitoring our electronic communications with oversight from the shadowy Foreign Intelligence court – ostensibly for national security purposes – should come as no shock. In post-9/11 America, it would be more surprising if the government eschewed this kind of surveillance. The real problem is the monitoring’s indefinite duration and dragnet scale, plus its potential for misuse as an ordinary law enforcement tool.

At the outset, it’s important to remember that the government isn’t systematically intercepting the content of our electronic communications. It’s only tracking the people we contact and the sites we access – not what we say or write to or on them. 

By its terms, the Fourth Amendment – prohibiting “unreasonable searches and seizures” of our “persons, houses, papers, and effects” – doesn’t seem to cover the numbers we call or text, the addresses we email or the URLs we visit. On that ground and others, we have no reasonable expectation that this information will remain private. So collecting it in real time – without a warrant, probable cause or individualized suspicion of wrongdoing – poses no substantial constitutional concern.

But federal statutory law confers privacy protection that’s broader than the Fourth Amendment’s. Specifically, it requires the government to certify that caller identification data “is relevant to an ongoing criminal investigation” – and obtain a warrant from a regular civilian judge – before agents can secretly monitor the numbers we dial for routine law enforcement purposes.

New York statutory law, to cite just one example, is even more demanding. It additionally requires police to show a reasonable suspicion that criminal activity is afoot, a standard just below the constitutional minimum of probable cause.

Against this backdrop, the dangers of the NSA’s suspicionless surveillance program are manifest. Obviously, the government cannot plausibly claim that all Americans are under “ongoing criminal investigation” – never mind that each of us is reasonably suspected of engaging in criminal behavior. No regular civilian court, then, would authorize the blanket data mining program the government is conducting under foreign intelligence auspices. 

To overcome these obstacles, law enforcement officials may be tempted to seek national security warrants under the lesser standard of the Foreign Intelligence Surveillance Act, using them as a pretext to fish for evidence of mine-run domestic infractions. Or, alternatively, agents may be tempted to use information legitimately gained from national security investigations to launch conventional probes of domestic crimes.

Indeed, the Supreme Court ruled just last year that extended GPS tracking of a criminal suspect’s movements requires a judicial warrant backed by a full-blown showing of probable cause. By analogy, one might argue that continuous live monitoring of every American’s calling, texting, emailing and browsing patterns demands nothing less – and certainly something greater than mere relevancy to a criminal investigation or reasonable suspicion of crime. If that’s true, then avoiding this burden through the back door of a FISA warrant becomes even more tempting.

In the end, the issue here isn’t really one of constitutional dimension. It’s that we’re relying on 20th century domestic wiretapping laws to keep pace with – and protect us from potential government abuses of – 21st century technology. It’s time for Congress to step in and amend our key domestic surveillance statute, originally passed in 1968, modernizing it for the digital age.