Tag Archives: Lawfare

Spain’s ‘universal jurisdiction’ power play

As the U.S. government’s myriad intrusions radically transform our economy, few seem to notice the dangerous progress of the international Left’s assault on American sovereignty. Without firing a shot, transnational progressives are further along than the Soviet Union could ever have reasonably hoped to be, notwithstanding Lenin’s prescient understanding that we would willingly participate in our own demise. In the Left’s sights is the very concept of the American people’s right of self-defense.

The New York Times reports that a Spanish court is considering filing human-rights charges, and issuing arrest warrants, against former attorney general Alberto Gonzales and five other Bush administration officials. The putative defendants did not carry out a single belligerent act, conduct a single interrogation, or direct the operation of any military or intelligence agents actually engaged in hostilities.

What these former White House, Justice Department, and Pentagon attorneys did do was to wrestle with complex, largely unsettled questions about the parameters of American law. Unlike their demagogic critics, they were engaged in a serious attempt to set the margins of permissible coercion, under wartime circumstances, against detainees who flout the laws of war, who are not covered by the Geneva Conventions’ prisoner-of-war provisions, who are schooled in counter-interrogation techniques, who had just murdered nearly 3,000 Americans in a sneak attack, and who were promising more of the same.

 

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Andrew C. McCarthy, a longtime friend of the Center, was the recipient of the Mightier Pen Award in 2008.

 

Lawfare and Obama’s transnationalist

What is wrong with this picture?  We learned this weekend that a Spanish judge, Baltasar Garzon, is preparing to prosecute six Americans who worked as senior legal and policy advisors to President George W. Bush – including Attorney General Alberto Gonzales and Under Secretary of Defense Douglas Feith.  The alleged crime?  The opinions they provided Mr. Bush supported the use of torture against enemy combatants.

Most Americans would find this assertion of what has come to be called "transnational law" to be troubling on several grounds. Its application is an affront to due process and the rule of law in this country.  It would criminalize internal U.S. policy-making deliberations, with profound implications for U.S. sovereignty.  If allowed to run its course, this prosecution would have a profoundly chilling effect on the willingness of subordinates to provide a president with advice, or perhaps even to serve in government.

One would hope that President Obama would recognize that this use of legal mechanisms as a form of warfare against the United States – increasingly known as "lawfare" – holds serious dangers not just for the country and those who ran it for the past eight years, but for his administration, as well.  That would appear not to be the case, however, in light of his choice of Harold Koh to be the State Department’s top lawyer.

In fact, as dean of Yale’s law school, Mr. Koh has been an unalloyed enthusiast for transnational law.  For example, in a 2006 article in the Penn State Law Review, he extolled the "transnationalist faction" on the Supreme Court and the wisdom shown by four, and sometimes five, of its justices in rejecting the impulses of what he disdainfully calls "the nationalist faction":

Generally speaking, the transnationalists tend to emphasize the interdependence between the United States and the rest of the world, while the nationalists tend instead to focus more on preserving American autonomy.  The transnationalists believe in and promote the blending of international and domestic law; while nationalists continue to maintain a rigid separation of domestic from foreign law.  The transnationalists view domestic courts as having a critical role to play in domesticating international law into U.S. law, while nationalists argue instead that only the political branches can internalize international law. 

The transnationalists believe that U.S. courts can and should use their interpretive powers to promote the development of a global legal system, while the nationalists tend to claim that U.S. courts should limit their attention to the development of a national system.  Finally, the transnationalists urge that the power of the executive branch should be constrained by judicial review and the concept of international comity, while the nationalists tend to believe that federal courts should give extraordinarily broad deference to executive power in foreign affairs.

How many Americans are aware that some, let alone an actual majority, of the Supreme Court’s justices believe that this country should be ruled by something other than the Constitution of the United States, laws made pursuant thereto and treaties clearly consistent with it?  Assuredly, few of us know that such an assault on our sovereignty is afoot; in all likelihood, fewer still would support it.

The same would likely apply to Harold Koh’s embrace of myriad other controversial transnationalist initiatives.  He favors U.S. submission to the International Criminal Court, enabling that tribunal to have the right tomorrow to take up the sort of foreign prosecutions of Americans contemplated by Spain’s Judge Garzon today.

Dean Koh goes even further than John Kerry, who argued that American uses of force must meet what the Senator euphemistically called a "global test."  Koh believes the United States must obtain pre-authorization by the UN Security Council.  In keeping with this view, he condemned the U.S. invasion of Iraq, which lacked such a mandate, as "illegal."

The State Department Legal Advisor-designate has also actively opposed virtually every instrument the previous administration deemed necessary to wage and win the war against terror-wielding adversaries. Koh insisted that Guantanamo Bay be closed coercive interrogation techniques be halted and trials in civilian U.S. courts be afforded to captured enemy combatants.  To be sure, these positions largely track with those of President Obama, although the latter has left himself some latitude in their implementation.  Koh’s critique of the government’s terrorist surveillance, though, is even more extreme than that of Mr. Obama, who as a Senator voted to allow the program to continue.

Not surprisingly, Mr. Koh seems untroubled by international accords that assault our Constitution-based sovereignty.  These include such onerous and invasive agreements as the Law of the Sea Treaty, the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Rights of the Child. Another candidate could be the Organization of the Islamic Conference’s effort to circumscribe freedom of expression by criminalizing speech that "offends" Islam.

It is absolutely predictable that the United States will find itself under ever greater assault in the form of lawfare as notions of the supremacy of transnational law take hold among elites, both here (notably, in the Supreme Court) and abroad.  Mr. Obama can spare himself and the country considerable grief when he meets this week in Europe and Turkey with some of the leading practitioners of lawfare by repudiating Judge Garzon’s extraterritorial over-reach, rejecting the application of transnational law more generally and selecting a State Department Legal Advisor who is an avowed "nationalist," not a committed "transnationalist."

 

Frank J. Gaffney, Jr. is President of the Center for Security Policy and a columnist for the Washington Times.

 

A rare victory in the judicial war in Peru

Imagine if, rather than tossing the coin at the Super Bowl, General David Petraeus was currently spending his life savings to defend himself from spurious charges that he committed human rights violations during the troop surge in Iraq. While this scenario seems preposterous to most Americans, it is a reality in many countries in Latin America, where military officers and soldiers are being persecuted under the guise of "human rights."

Since the end of the Vietnam War, the concept of human rights has been systematically co-opted by groups less interested in actual human rights than in the promotion of leftist politics in the U.S. and abroad. It was in the nascent stages of the Carter Administration, when Brady Tyson, deputy to then UN Ambassador Andrew Young, predicted openly that human rights would be used to help leftist revolutionaries in the western hemisphere.

At around the same time, Democrat Party scion Daniel Patrick Moynihan was criticizing the UN’s similar adulteration of human rights, stating that, "Unless standards of human rights are seen to be applied uniformly and neutrally to all nations…it will quickly be seen that it is not human rights at all which are invoked when selective applications are called for, but simply arbitrary political standards dressed up in the guise of human rights." Moynihan continued, "More and more the United Nations seems only to know of violations of human rights in countries where it is still possible to protest such violations."

Richard Holbrooke, recently named the Special Representative for Afghanistan and Pakistan in the Obama administration, once testified before congress during the height of the Cold War that, "in the name of human rights, a small but vocal group of people…sought to carry out far-reaching change in the world structure…their targets were almost without exception regimes of the right which happened to be anti-Soviet."

Moynihan’s and Holbrooke’s warnings are now manifest in many Latin American countries, where politicized judiciaries settle political scores and "truth and reconciliation commissions," such as that proposed last week by Senator Patrick Leahy to go after the Bush Administration, are stacked to achieve a politically desired outcome.

Today, these quasi-judiciaries incentivize false accusations by offering reparations by the state to any civilian that files a claim against military personnel or state police. Yet neither civilian nor military courts offer legal recourse for those who are killed, maimed or displaced by terrorist groups – the very groups that provoked the military response to begin with.

This "judicial warfare," as it has come to be known, was made possible by the same Senator Leahy, who originated the legislation as a rider to a larger bill in 1997. The "Leahy Law," as it is now called, has provided the Marxist-Leninist-Maoist terrorist groups throughout Latin America with the ability to remove their betters from the battlefield without firing a shot. Many of the most well-trained officers – including those with the most training in avoiding civilian casualties during counter-terrorism operations – are frequently removed from duty at half pay because of flimsy allegations of human rights violations.

Though most are eventually exonerated, the careers and finances of these men are destroyed in the decades-long legal labyrinth that ensues. And worse, the false witnesses that make the accusations are rarely, if ever, prosecuted – though in a multitude of cases they have recanted and have stated under oath that they were induced to testify falsely.

One of the better-known cases of judicial warfare was recently concluded in Peru, with the exoneration by that country’s highest court of General Eduardo Bellido. General Bellido’s case had become a case study for journalists, publicized in a book published by the Institute for the Press and Society.

The book, The Press and the Military, was a mea culpa for the flagrant nature with which the press had accepted all of the arguments of Narco-terrorists and their apologist NGOs against a decorated General that had pacified that country’s largest terrorist redoubt.

On January 29th, the Peruvian armed forces held a ceremony to publicly honor General Bellido for his service to the country as well as to acknowledge the travesty of justice that he had endured. Lurking behind these false allegations, once again, was a panoply of left-wing NGOs including APRODEH, the very group that successfully petitioned the European Parliament not to include the Tupac Amaru (MRTA) terrorists on its official list of terrorist groups.

These same players have been behind nearly every congressional appeal to halt military aid from the U.S. to Latin America for the past two decades, while falling silent during administrations that they consider friendly to their interests. Francisco Soberon, a director of APRODEH, has made a good living as a "human rights advocate" in those two decades. President Alan Garcia called him a "traitor to the country" and demanded an investigation into APRODEH’s funding after it was revealed that it was Soberon that had petitioned the European Parliament in support of MRTA terrorists.

Former Vice President Luis Giampietri, one of the hostages of the Tupac Amaru siege of the Japanese Ambassador’s residence in 1997, accused Soberon of being an advocate for the terrorists. "Whose human rights do these organizations defend? They defend the terrorists," Giampietri said of APRODEH.

A former navy officer, Giampietri helped the Peruvian commandos rescue the hostages by providing intelligence via a miniature two-way radio from inside the ambassador’s residence. This also allowed Giampietri the ability to inform the hostages to stay separated from the terrorists just minutes before the rescue operation began, possibly saving their lives.

Once the smoke cleared, there were no terrorists left alive and one hostage was lost due to heart failure. The operation was hailed worldwide as a textbook success. Yet the first to denounce the "brutality" of the rescue was Eligia Rodriguez Bustamante, a deputy director of APRODEH.  More telling was the fact that Ms. Rodriguez Bustamante was also the mother of one of the Tupac Amaru terrorists killed during the rescue mission. Unsurprisingly, APRODEH later filed suit on behalf of the terrorists’ family members, saying that the rescuers violated the terrorists’ human rights.

It should be stipulated that if there is a true case of an actual human rights violation by a soldier, police officer, or civilian, the violator should receive the harshest penalty available under law. The death of innocents is, and will always be, a lamentable but ineluctable byproduct of defending millions more innocents from the murderous adventurism of schoolyard ideologies. But it is long past time to acknowledge that there is no moral equivalency between those that work to defend the innocent, though imperfectly, and those that defend the slaughter of innocents to justify political ends.

 

This is the second of two articles written by Jon Perdue about how some Latin American human rights organizations falsely accuse various military and political leaders in order to remove them from power. Mr. Perdue’s first article "The New Battlefield in Latin America" published on 7/17/08 may be found in the Americas Report Archives.

Versión en Español

 

 

The speech Geert Wilders would have given

To have been delivered in the House of Lords, London, Feb. 12, 2009:

 

Ladies and gentlemen, thank you very much.

Thank you for inviting me. Thank you Lord Pearson and Lady Cox for showing Fitna, and for your gracious invitation. While others look away, you, seem to understand the true tradition of your country, and a flag that still stands for freedom.

This is no ordinary place. This is not just one of England’s tourist attractions. This is a sacred place. This is the mother of all Parliaments, and I am deeply humbled to speak before you.

The Houses of Parliament is where Winston Churchill stood firm, and warned – all throughout the 1930’s – for the dangers looming. Most of the time he stood alone.

In 1982 President Reagan came to the House of Commons, where he did a speech very few people liked. Reagan called upon the West to reject communism and defend freedom. He introduced a phrase: ‘evil empire’. Reagan’s speech stands out as a clarion call to preserve our liberties. I quote: If history teaches anything, it teaches self-delusion in the face of unpleasant facts is folly.

What Reagan meant is that you cannot run away from history, you cannot escape the dangers of ideologies that are out to destroy you. Denial is no option.

Communism was indeed left on the ash heap of history, just as Reagan predicted in his speech in the House of Commons. He lived to see the Berlin Wall coming down, just as Churchill witnessed the implosion of national-socialism.

Today, I come before you to warn of another great threat. It is called Islam. It poses as a religion, but its goals are very worldly: world domination, holy war, sharia law, the end of the separation of church and state, the end of democracy. It is not a religion, it is a political ideology. It demands you respect, but has no respect for you.

There might be moderate Muslims, but there is no moderate Islam. Islam will never change, because it is build on two rocks that are forever, two fundamental beliefs that will never change, and will never go away. First, there is Quran, Allah’s personal word, uncreated, forever, with orders that need to be fulfilled regardless of place or time. And second, there is al-insal al-kamil, the perfect man, Muhammad the role model, whose deeds are to be imitated by all Muslims. And since Muhammad was a warlord and a conqueror we know what to expect.

Islam means submission, so there cannot be any mistake about it’s goal. That’s a given. The question is whether the British people, with its glorious past, is longing for that submission.

We see Islam taking off in the West at an incredible speed. The United Kingdom has seen a rapid growth of the number of Muslims. Over the last ten years, the Muslim population has grown ten times as fast as the rest of society. This has put an enormous pressure on society. Thanks to British politicians who have forgotten about Winston Churchill, the English now have taken the path of least resistance. They give up. They give in.

Thank you very much for letting me into the country. I received a letter from the Secretary of State for the Home Department, kindly disinviting me. I would threaten community relations, and therefore public security in the UK, the letter stated.

For a moment I feared that I would be refused entrance. But I was confident the British government would never sacrifice free speech because of fear of Islam. Britannia rules the waves, and Islam will never rule Britain, so I was confident the Border Agency would let me through. And after all, you have invited stranger creatures than me. Two years ago the House of Commons welcomed Mahmoud Suliman Ahmed Abu Rideh, linked to Al Qaeda. He was invited to Westminster by Lord Ahmed, who met him at Regent’s Park mosque three weeks before. Mr. Rideh, suspected of being a money man for terror groups, was given a SECURITY sticker for his Parliamentary visit.

Well, if you let in this man, than an elected politician from a fellow EU country surely is welcome here too. By letting me speak today you show that Mr Churchill’s spirit is still very much alive. And you prove that the European Union truly is working; the free movement of persons is still one of the pillars of the European project.

But there is still much work to be done. Britain seems to have become a country ruled by fear. A country where civil servants cancel Christmas celebrations to please Muslims. A country where Sharia Courts are part of the legal system. A country where Islamic organizations asked to stop the commemoration of the Holocaust. A country where a primary school cancels a Christmas nativity play because it interfered with an Islamic festival. A country where a school removes the words Christmas and Easter from their calendar so as not to offend Muslims. A country where a teacher punishes two students for refusing to pray to Allah as part of their religious education class. A country where elected members of a town council are told not to eat during daylight hours in town hall meetings during the Ramadan. A country that excels in its hatred of Israel, still the only democracy in the Middle-East. A country whose capitol is becoming ‘Londonistan’.

I would not qualify myself as a free man. Four and a half years ago I lost my freedom. I am under guard permanently, courtesy to those who prefer violence to debate. But for the leftist fan club of islam, that is not enough. They started a legal procedure against me. Three weeks ago the Amsterdam Court of Appeal ordered my criminal prosecution for making ‘Fitna’ and for my views on Islam. I committed what George Orwell called a ‘thought crime’.

You might have seen my name on Fitna’s credit role, but I am not really responsible for that movie. It was made for me. It was actually produced by Muslim extremists, the Quran and Islam itself. If  Fitna is considered ‘hate speech’, then how would the Court qualify the Quran, with all it’s calls for violence, and hatred against women and Jews?

Mr. Churchill himself compared the Quran to Adolf Hitler’s Mein Kampf. Well, I did exactly the same, and that is what they are prosecuting me for.

I wonder if the UK ever put Mr. Churchill on trail.

The Court’s decision and the letter I received form the Secretary of State for the Home Department are two major victories for all those who detest freedom of speech. They are doing Islam’s dirty work. Sharia by proxy. The differences between Saudi-Arabia and Jordan on one hand and Holland and Britain are blurring. Europe is now on the fast track of becoming Eurabia. That is apparently the price we have to pay for the project of mass immigration, and the multicultural project.

Ladies and gentlemen, the dearest of our many freedoms is under attack. In Europe, freedom of speech is no longer a given. What we once considered a natural component of our existence is now something we again have to fight for. That is what is at stake. Whether or not I end up in jail is not the most pressing issue. The question is: Will free speech be put behind bars?

We have to defend freedom of speech.

For the generation of my parents the word ‘London’ is synonymous with hope and freedom. When my country was occupied by the national-socialists the BBC offered a daily glimpse of hope, in the darkness of Nazi tyranny. Millions of my country men listened to it, illegally. The words ‘This Is London’ were a symbol for a better world coming soon. If only the British and Canadian and American soldiers were here.

What will be transmitted forty years from now? Will it still be ‘This Is London’? Or will it be ‘this is Londonistan’? Will it bring us hope, or will it signal the values of Mecca and Medina? Will Britain offer submission or perseverance? Freedom or slavery?

The choice is ours. 

Ladies and gentlemen, we will never apologize for being free. We will never give in. We will never surrender. Freedom must prevail, and freedom will prevail.

Thank you very much.

 

Geert Wilders MP

Chairman, Party for Freedom (PVV)

The  Netherlands

 

 

An Open Letter to the Government of the UK

Background (From the IFPS Statement on Wilders):

The International Free Press Society believes this court-ordered prosecution against Geert Wilders, a central figure in the fight against the Islamization of the West, amounts to a dangerous concession to the strictures of Islamic law, which prohibits all criticism of Islam, over Western traditions of, and rights to robust and unfettered debate. As such, it is tantamount to a  surrender to totalitarian influences that undermine all Western freedoms. And as such, it must be resisted.

It is important to recall recent history. Two Dutchmen, Pim Fortuyn and Theo van Gogh, have been murdered for their outspoken opposition to Islamization in The Netherlands. Another Dutch politician, Ayaan Hirsi Ali, has been infamously forced into exile. Wilders alone now carries this debate over Islam in Dutch society forward – forcefully but logically, outspokenly but reasonably, and always peacefully. In order to do so, this member of Dutch parliament lives in a virtual prison, consigned to 24-hour guard by Islamic death threats against his life. Now, Dutch authorities have ordered him to be prosecuted for the Orwellian crime of committing “insulting” words.

As Wilders puts it, “If I have to stand trial, I will not stand trial alone, but also with the hundreds of thousands of Dutch people who reject the Islamization of The Netherlands.” He will also stand trial with those in The Netherlands and beyond who reject government prosecutions of free speech. In recognition of this this dire situation, the IFPS immediately calls on every supporter of free speech to come to the aid of Geert Wilders.To assist in this effort, the IFPS has launched an international campaign in defense of Geert Wilders and his freedom of speech.

 

An Open Letter to the Government of the UK

 

On Tuesday, February 10, 2009, Dutch parliamentarian Geert Wilders, leader of the Partij voor de Vrijheid (Party for Freedom), received a letter written on behalf of British Home Secretary Jacqui Smith. It informed Mr. Wilders that on traveling to the UK at the invitation of UK Independence Party peer Lord Pearson to screen the film Fitna and hold a Q&A in the Parliament on Thursday, February 12, 2009, Mr. Wilders should expect to be barred from entry into the UK for the following stated reason:

The Secretary of State is of the view that your presence in the UK would pose a genuine, present and sufficiently serious threat to one of the fundamental interests of society. The Secretary of State is satisfied that your statements about Muslims and their beliefs, as expressed in your film Fitna and elsewhere, would threaten community harmony and therefore public security in the UK.

With this edict, the government of the UK has broken faith with its own glorious tradition of enshrining freedom of speech, and embarked on an authoritarian course of setting the boundaries of political debate. With this action, the government of the UK has also broken faith with its neighbors in the European Union by taking the unprecedented measure of barring entry to a democratically elected representative, and, in Mr. Wilders’ case, party leader from another EU member state. In so doing, the government of the UK has additionally given lie to the organizing EU principle of “open borders” among member states, demonstrating a capricious will to close its borders against ideas of which it disapproves.

The British Home Office has further stated that in barring Geert Wilders from the UK it is stopping “extremism, hatred and violent messages” from coming to its country. The British Home Office is wrong. These things are already there. With this crude rebuff of Mr. Wilders, the Netherlands, and freedom of speech, the British government has all but ensured that such extremism, hatred and violent messages will continue to flourish in British soil, taking root and taking over.

And there is something else. Ideas know no boundaries, at least in what we continue to think of as the Free World. Fitna, Wilders’ writings, news of his political progress in the Dutch parliament: All remain available inside the UK via the Internet and other media. This means that the Home Office’s stated reasons for barring Wilders–to prevent the spread of what it calls “extremism” into UK communities of presumed “harmony”–is not at all what this action is about. In declaring Wilders the man persona non grata, the British government has declared his ideas and his political program to be anathema. In another alarming sign of authoritarianism, the British government has also canceled by fiat the House of Lords’ right to hear these ideas and political program. It is impossible to gauge the chilling effect that this deplorable decision will have on free speech and debate in England but it is no exaggeration to say that it will be colossal. If this decision to bar from the UK an elected representative from the Netherlands is not rescinded, it will stand in history as a shameful marker of the UK’s descent into what tragically augurs an anti-liberal, anti-Western and authoritarian spiral.

Therefore, the International Free Press Society calls on the British government to rescind immediately the Home Secretary’s decision to bar Geert Wilders of the Netherlands entry into the UK.

Signed,

Lars Hedegaard, President

Diana West, Vice President

Paul Belien, Vice President

Christine Brim, Secretary

Bjorn Larsen, Treasurer

Ned May, Outreach Coordinator

 

 

Watch Geert Wilders’ Fitna below:

 

UK refuses Geert Wilders entry; Nat Hentoff on criticizing jihadists

Note: Geert Wilders was invited to the UK Parliament to speak at a showing of his film, Fitna (Arabic for ‘disagreement’ or ‘test of faith’). But then, a Muslim member of the UK Parliament, the powerful Lord Nazir Ahmed, threatened protests and the showing was cancelled. Word had it though that some members of Parliament had girded their loins and were prepared to reinvite Wilders and tough it out with the Muslim mobs led by Lord Ahmed. Well, that was until the really powerful decided to simply ban Mr. Wilders, a member of Parliament of the Netherlands, from even entering the UK.

 

Geert Wilders – a film producer and also a member of parliament in the Netherlands – is facing a prison term there for "insulting" Muslims. His short film "Fitna" in 2008 juxtaposed verses from the Koran with scenes of violence committed by jihadist terrorists. The Dutch appellate court refused a free-speech defense because the insults were so egregious.

If convicted, Wilders faces a maximum sentence of two years in prison. Said the defendant: "I lost my freedom already four and a half years ago in October 2004, when my 24-hour police protection started because of threats by Muslims in Holland and abroad to kill me."

I have heard from Muslims in this country that jihadists around the world have more than insulted traditional Muslim law by their fierce punishments of both non-Muslims and Muslims who have acted in speech or writing against jihadists’ reinterpretations of the Quran. Some of these protesters, exercising freedom of conscience, have been killed for their "blasphemy."

What awaits Wilders in the Netherlands may be a harbinger of what will happen if a nonbinding Dec. 18 U.N. resolution, passed by a strong majority in the General Assembly, becomes international law. The resolution urges U.N. members to take state action against (punish) "defamation of religion" and "incitement to religious hatred" caused by defamation.

The main force behind this resolution, which was sponsored on its behalf, is the 57 members of the Organization of the Islamic Conference. Following the combustible cartoons of Prophet Muhammad that were published in Denmark in September 2005, this organization had a key role in expanding the violent protests against those cartoons in a number of countries.

On Feb. 9, 2006, I received a copy of a letter to U.N. Secretary-General Kofi Annan from a longtime source of mine. He was acting against Sudan’s National Islamic Front government killing, raping and enslaving of black Christians and animists in southern Sudan. He was John Eibner, director of Christian Solidarity International, which was instrumental in rescuing many of those captives from slavery in the north of Sudan.

Eibner told Annan (as I reported at the time in the Feb. 14, 2006, Village Voice): "The role of the Saudi-based Organization of Islamic Conference (OIC), representing 57 Muslim states, in creating a climate for violent confrontation over the cartoons [was shown when] the OIC set the stage for anti-free speech demonstrations at its extraordinary summit in Mecca in December 2005.

"The Muslim states," Eibner continued, "resolved – through many demonstrations – to pressure, through a program of joint Islamic action, international institutions, including the U.N., to criminalize insults of Islam and its prophet. … On the 4th of February – the day the mob violence commenced – the Organization of Islamic Conference described publication of the caricatures as acts of ‘blasphemy.’ Blasphemy is punishable by death, according to Sharia law."

Revealingly, although there was outrage when, on Oct. 17, 2005, the Egyptian newspaper Al Fagr published the cartoons on its front page, there was nothing like the furious demonstrations elsewhere until after the Organization of the Islamic Conference summit meeting in December 2005.

After the OIC’s focus on the cartoons at the Mecca summit, Syria, Iran, Egypt, Lebanon and Qatar went on to carry the inflammatory message of blasphemy. And the OIC’s grand plan to get international institutions to criminalize insults of Islam began to work. On Feb. 9, 2006, the European Union asked for a voluntary code of conduct to prevent offending Muslims. And on the same day, Annan concurred with an OIC proposal that the U.N. Human Rights Council "prevent instances of intolerance, discrimination, incitement of hatred and violence…against religions, prophets and beliefs."

Last Dec. 18, the OIC triumphed with the U.N. General Assembly’s passing of the nonbinding but rousing "defamation of religion" resolution on behalf of the OIC, which emphasized only Muslims and Islam by name as the forbidden targets of such "defamation." Pressure may well continue to enshrine this resolution into international law.

The OIC had a New York Times ad on Inauguration Day, Jan. 20, "An Invitation to a New Partnership," addressed to President Obama. The organization wrote: "Throughout the globe, Muslims hunger for a new era of peace. We firmly believe that America, with your guidance, can help foster that peace, though real peace can only be shared – never imposed."

The OIC, however, was at the time fresh from its U.N. victory to actually impose silence on critics of Islamic jihadists, who have long been working to hijack the true Muslim religion. And why has the press, particularly the American press, continued to be so silent on this U.N. attack on individuals’ right of conscience throughout the world to call jihadist terrorism what it is? You might want to ask your news sources why they have ignored this global gag rule on free expression.

Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights. He is a member of the Reporters Committee for Freedom of the Press, and the libertarian Cato Institute, where he is a senior fellow.

This article appeared in the Washington Times on February 9, 2009.

 

Consequential election

There is a certain irony as the nation celebrates this week the 200th birthday of Abraham Lincoln.  Arguably, not since “Honest Abe’s” assumption of the presidency triggered the start of the Civil War has the arrival of a new Commander-in-Chief unleashed so many portentous developments for the national security.

It is a time-proven truism that “elections have consequences.” Consider just a few of the consequences likely to flow from the election of another president from Illinois as a result of assorted priorities of the Far Left promulgated by Barack Obama in his first days in office:

In the middle of not one but two shooting wars, President Obama has signaled that he intends to cut defense spending by 10%. The anti-military chairman of the Senate Armed Services Committee, Carl Levin, has gleefully announced that he intends to strip funds for weapon systems from the budget.  Likely consequence: the armed services will be unable either properly to “reset” the equipment and capabilities that have been used so intensively over the past seven years or be prepared for the next conflict.  History teaches that such a posture invites foreign aggression and costs far more than is saved through short-term and short-sighted cuts.

Team Obama has vowed not to support ballistic missile defenses unless they “work and are cost-effective.”  It is an article of faith for the Left that neither is true, no matter how many successful tests are conducted of our anti-missile systems.  And over the weekend, Vice President Joe Biden left the impression with NATO allies that such a standard would preclude the previously approved U.S. deployment of radars and interceptors in Eastern Europe.  (Sen. Levin has already said he would “love to cut missile defense.”) Likely consequence: Friendly governments reliant on American protection from Russian revanchism will be undercut; the Kremlin will be emboldened; and the Iranian mullahs – who just demonstrated long-range missile capabilities – will have in the future a free ride in threatening, or even attacking, Europe with nuclear-armed ballistic missiles.

President Obama has reportedly rejected the advice of his senior commanders in the theater concerning the timing of withdrawal of U.S. forces from Iraq.  Worse yet, he has proposed Amb. Chris Hill – fresh from his appalling appeasement of North Korea – to be the U.S. envoy to Baghdad.  In that capacity, he would be one of the chief interlocutors with the Iranians in the new dialogue Mr. Obama is intent on having with the mullahs. Likely consequence:  Creation of a vacuum of power in Iraq that will unnecessarily destabilize the country and facilitate Iranian efforts to exert hegemony there.  The stage will thus be set for the next war in the region, one that will surely be more costly for American personnel and interests than anything we have seen to date.

Press reports suggest that Mr. Obama has engaged octogenarian, erstwhile detentist-appeaser and current Russian consultant Henry Kissinger to help fashion a new arms control deal with the Kremlin.  Evidently, the president is seeking the Russians’ assent to massive reductions in the two nations’ nuclear arsenals enroute to his stated goal of a global ban on all nuclear weapons. There are myriad problems with this initiative: For example, as we are unsure of the actual size of Moscow’s stockpile, Russia could retain a large, covert force. They are modernizing their nuclear arsenal – something Team Obama refuses to do for ours. And verification of such cuts, let alone “Global Zero” will be, as a practical matter, impossible.  Likely consequence: Russia reestablishes a dominant nuclear posture; China is encouraged to match the United States’ low numbers and become a peer superpower; and other nations who rely on the U.S. nuclear umbrella decide they need their own deterrent, feeding world-wide proliferation.

President Obama has nominated Harvard Law School Dean Elena Kagan to become Solicitor General, a stepping-stone some believe for her appointment to the Supreme Court.  In her nomination hearing tomorrow, Ms. Kagan will doubtless be questioned about her hostility towards the U.S. military, evident in the determined opposition she has long exhibited to its recruiting on campuses.  Interestingly, the Supreme Court unanimously rejected the left-wing extremism of her effort to have the courts strike down the Solomon Amendment (which ties academic institutions’ access to federal funds to their granting military recruiters access to their campuses). Likely consequence of Ms. Kagan’s confirmation:  The Justice Department will play an adversarial, rather than supportive, role for our armed forces in an age when they are increasingly subjected to “lawfare” – the use of legal proceedings to interfere with and, where possible, defeat their missions.

President Obama and his congressional allies intend – later if not sooner – to repeal the statutory prohibition on homosexuals in the military. Likely consequence:  The “breaking” of the All-Volunteer Force as significant numbers of skilled personnel resign rather than be subjected in settings of sustained and forced intimacy to people who find them sexually attractive.  A lot of young recruits and their parents can be expected to feel the same way.  Taking such risks with our armed services would be reckless at any time; doing so in time of war is downright dangerous.

We cherish the memory of Abraham Lincoln because he proved to be a strong and effective Commander-in-Chief in an era when the survival of our country required one.  That may be equally true today.  Mr. Obama won his highly consequential election on a platform of “hope.”  Unless he reverses course in the aforementioned and similar matters, though, any hope he will be remembered as fondly as “the Savior of the Union” is unlikely to be realized.

 

            Frank J. Gaffney, Jr. is President of the Center for Security Policy and a columnist for the Washington Times. 

 

Islamists’ Catch-22

Try a little thought experiment.  What would have happened in this country during the Cold War if the Soviet Union successfully neutralized anti-communists opposed to the Kremlin’s plans for world domination?

Of course, Moscow strove to discredit those in America and elsewhere who opposed its totalitarian agenda – especially after Sen. Joseph McCarthy’s excesses made it fashionable to vilify patriots by accusing them of believing communists were "under every bed."

But what if the USSR and its ideological soul-mates in places like China, North Korea, Cuba, Eastern Europe and parts of Africa had been able to criminalize efforts to oppose their quest for the triumph of world communism?  What if it had been an internationally prosecutable offense even to talk about the dangers inherent in communist rule and the need to resist it?

The short answer is that history might very well have come out differently.  Had courageous anti-communists been unable accurately and forcefully to describe the nature of that time’s enemy – and to work against the danger posed by its repressive, seditious program, the Cold War might well have been lost. 

Flash forward to today.  At the moment, another totalitarian ideology characterized by techniques and global ambitions strikingly similar to those of yesteryear’s communists is on the march.  It goes by varying names: "Islamofascism," "Islamism," "jihadism" or "radical-" "extremist-" or "political Islam."  Unlike the communists, however, adherents to this ideology are making extraordinary strides in Western societies toward criminalizing those who dare oppose the Islamist end-state – the imposition of brutal Shariah Law on Muslims and non-Muslims alike.

Consider but a few indicators of this ominous progress:

  • In March, the 57 Muslim-state Organization of the Islamic Conference (OIC) prevailed upon the United Nations Human Rights Council to adopt a resolution requiring the effective evisceration of the Universal Declaration of Human Rights. Henceforth, the guaranteed right of free expression will not extend to any criticism of Islam, on the grounds that it amounts to an abusive act of religious discrimination. A UN Special Rapporteur on Freedom of Expression has been charged with documenting instances in which individuals and media organizations engage in what the Islamists call "Islamophobia."  Not to be outdone, the OIC has its own "ten-year program of action" which will monitor closely all Islamophobic incidents and defamatory statements around the world.
  • Monitoring is just the first step. Jordan’s Prosecutor General has recently brought charges against Dutch Parliamentarian Geert Wilders. According to a lawsuit, "Fitna" – Wilders’ short documentary film that ties certain Koranic passages to Islamist terrorism – is said to have slandered and insulted the Prophet Mohammed, demeaned Islam and offended the feelings of Muslims in violation of the Jordanian penal code.  Mr. Wilders has been summoned to Amman to stand trial and, if he fails to appear voluntarily, international warrants for his arrest will be issued. 
  • Zakaria Al-Sheikh, head of the "Messenger of Allah Unites Us Campaign" which is the plaintiff in the Jordanian suit, reportedly has "confirmed that the [prosecutor’s action] is the first step towards setting in place an international law criminalizing anyone who insults Islam and the Prophet Mohammed."  In the meantime, his campaign is trying to penalize the nations that have spawned "Islamophobes" like Wilders and the Danish cartoonists by boycotting their exports – unless the producers publicly denounce the perpetrators both in Jordan and in their home media.

Unfortunately, it is not just some companies that are submitting to this sort of coercion – a status known in Islam as "dhimmitude."  Western officials and governmental entities appear increasingly disposed to go along with such efforts to mutate warnings about Shariah law and its adherents from "politically incorrect" to "criminally punishable" activity.  

For example, in Britain, Canada and even the United States, the authorities are declining to describe the true threat posed by Shariah Law and are using various techniques to discourage – and in some cases, prosecute – those who do.  We are witnessing the spectacle of authors’ books being burned, ministers prosecuted, documentary film-makers investigated and journalists hauled before so-called "Human Rights Councils" on charges of offending Muslims, slandering Islam or other "Islamophobic" conduct.  Jurists on both sides of the Atlantic are acceding to the insinuation of Shariah law in their courts.  And Wall Street is increasingly joining other Western capital markets in succumbing to the seductive Trojan Horse of "Shariah-Compliant Finance."

Let’s be clear: The Islamists are trying to establish a kind of Catch-22: If you point out that they seek to impose a barbaric, repressive and seditious Shariah Law, you are insulting their faith and engaging in unwarranted, racist and bigoted fear-mongering.  On the other hand, pursuant to Shariah, you must submit to that theo-political-legal program.  If you don’t, you can legitimately be killed. It is not an irrational fear to find that prospect unappealing. And it is not racist or bigoted to decry and oppose Islamist efforts to bring it about – ask the anti-Islamist Muslims who are frequently accused of being Islamophobes!

If we go along with our enemies’ demands to criminalize Islamophobia, we will mutate Western laws, traditions, values and societies beyond recognition.  Ultimately, today’s totalitarian ideologues will triumph where their predecessors were defeated.

To avoid such a fate, those who love freedom must oppose the seditious program the Islamists call Shariah – and all efforts to impose its 1st Amendment-violating blasphemy, slander and libel laws on us in the guise of preventing Western Islamophobia. 

Frank J. Gaffney, Jr. is President of the Center for Security Policy and a columnist for the Washington Times.

 

 

Lawfare: bleeping with the enemy

Piracy used to be a one way ticket to the gallows. With the Royal Navy these days, it may be a one way ticket to the pirates’ port of choice; or worse for the people of Britain, the chance for freebooters to claim asylum in the UK.

Last month, Britain’s Foreign Office instructed the Royal Navy not to return pirates to jurisdictions sporting Islamic law for fear that their human rights might be violated. It has even been discouraged from capturing pirates, because they might demand asylum in Britain, a request with which the UK might have to comply under international human rights law.

It isn’t that bad in the U.S. — yet — but things are getting worse. Welcome to the brave new world of “lawfare,“ the soft jihad that uses international organizations and treaties, but especially the courts, in an effort to undermine the ability of the West to fight Islamofascism; directly by making military action and law enforcement more difficult, and indirectly by suppressing free discussion of ideas that are crucial to understanding and confronting the Islamist threat.

The Organization of the Islamic Conference, for instance, has recently called on the United Nations to help stifle criticism of Islam and has announced it will be stepping up legal efforts to deter what it terms the “defamation” of Islam, i.e., discussion of the Koran, Islamic law, and the roots and nature of jihad.

Particularly active domestically is the Council on American Islamic Relations. CAIR is, to say the least, controversial. It has been named as an unindicted co-conspirator in a federal criminal case involving the Holy Land Foundation “charity,” a Hamas front; a number of its founders had connections to terrorist organizations; and at least three of its employees have been convicted for terrorism-related activity.

CAIR claims to be merely an advocacy organization for Muslims. And Hannibal Lecter is a meat-eater. Twice true. But of more interest and relevance is that both are predators, with CAIR using threats and intimidation, as well as the legal process, to undermine law enforcement and whitewash the Islamists’ true vocation.

Especially with shadowy backers, CAIR knows the power of strong arm legal jihad.

Last August, CAIR attempted to prevent Jihad Watch’s Robert Spencer from speaking at a YAF student conference by sending a lawyer’s letter threatening to sue organizers. Their claims were baseless; their tone menacing; their purpose merely to bully.

The same MO was employed last year in response to a NYPD report on Muslim radicalization. CAIR organized opposition to the report, insisted that it not be shared with other law enforcement agencies before its “misconceptions and errors” were corrected and demanded to know follow-up policing policies.

When it’s handy, CAIR pursues its goals with charges of discrimination and ethnic intolerance, couched in the rhetoric of civil rights and human decency toward which Americans are instinctively deferential. When that doesn’t work, it lays siege to individuals and organizations by creating a sense of legal or other danger and by using smears that make those favoring the quiet life think twice before speaking or acting.

In fact, none of CAIR’s charges of defamation has been successfully pursued to conclusion. It has lost or backed down in cases involving, among others, Congressman Cass Ballenger, who called the organization “the fundraising arm for Hezbollah”; Canada’s National Post; and the “Anti-CAIR.net.org” website.

CAIR was also behind the attempt of the “Flying Imams” to intimidate – by a law suit — those who would report suspicious behavior, and its website invites complaints about alleged discrimination by airlines as well as law enforcement personnel.

An organization that often protests its concern for the safety of Americans has assailed lengthy naturalization proceedings and encouraged lawsuits. In 2006 it joined a lawsuit to curtail the National Security Agency’s electronic intercepts of terrorist suspects’ communications. And it has provided the FBI and other law enforcement agencies, as well as airports, with what can only be a tendentious “sensitivity training” that undoubtedly compromises their work.

But CAIR isn’t alone making use of lawfare’s bespoke subversion.

In Canada, writer Mark Steyn has been summoned to appear before two “human rights commissions” on charges of “Islamophobia” and encouraging “hatred and contempt” for Muslims, following publication in Macleans magazine of an excerpt from his book, “America Alone.” The action was instigated by the Canadian Islamic Congress pursuant to European-style “hate laws” that prohibit the general kind of speech that would be protected in the U.S.

In Britain, absurdly strict libel laws allow forum shoppers to force books from shelves around the world. Cambridge University Press, for example, was sued for publishing a book connecting a wealthy Saudi, Khalid bin Mahfouz, with “charitable” organizations supporting jihad. Even while the book was published in Britain, a court ordered it removed from print and every last copy pulped — wherever found.

Fortunately, those who courageously refuse to buckle increasingly have access to legal assistance provided by organizations like The Middle East Forum. In New York State, the “Libel Terrorism Protection Act” has been introduced to protect authors from meritless libel suits filed by plaintiffs taking advantage of foreign jurisdictions.

Still, many are deterred from exercising their First Amendment rights. They don’t want to get involved. The dread, the unknowns, and the mud.

A chill descends. The virus of dhimmitude infects non-Muslim countries. A healthy understanding of Islamofascism, sharia and jihad is replaced by ignorance or the Islamofascist line of a benign Islam and sharia, and skepticism about the terrorist threat — as it has in Europe and Britain.

In the U.S. lawyers haven’t yet forced our Navy to coddle pirates. A sense of reality remains that is not always shared by our European brothers and sisters.

But organizations like CAIR are increasingly using lawfare to pursue an agenda that stifles necessary analysis and discussion or otherwise compromises national security. The mischief continues, and the potential in our litigious society to advance Islamofascism through legal jihad is ultimately even greater than it is in Europe.

Originally Published in Human Events. 

 

Green Borders

One of the unfortunate paradoxes of the post-September 11 environment is that the further in time we move from that horrible day, and the more effective our security agencies become at preventing another successful terrorist attack on American soil, the more susceptible many Americans become to the notion that the terrorist threat has receded. Taking false comfort in the absence of a successful 9-11 scale attack or worse during the past seven years, many already pre-disposed to distrust the Bush administration have long since decided that it can do no right when it comes to terror prevention — that every counter-terrorism measure is simply an abuse of power disguised as vigilance

There are those, however, who should know better than most about the ongoing seriousness of the threat, among them those lawmakers tasked specifically with the formulation and oversight of counter-terrorism policy. It is for this reason that we should view with great alarm the fact that certain key Members of Congress — including the Chairmen of the House Homeland Security Committee and House Permanent Select Committee on Intelligence — are teaming up with misguided environmental organizations in an effort to undo legislation intended to prevent terrorists from sneaking across our vulnerable southwestern border to conduct their operations.

While much of the debate on illegal immigration — especially during this presidential election cycle — has focused on the economic and general public safety consequences of the continued permeability at the border, the issue of terrorist infiltration into the United States via Mexican territory has received comparatively less attention. Such infiltration, however, remains a genuine national security risk, as has been thoroughly documented by investigative journalist Todd Bensman. According to Bensman, since the mid-1990s, operative or affiliates of Hezbollah, Hamas, and the Tamil Tigers have been apprehended by U.S. authorities while jumping or after having jumped the border. Bensman also notes the 2004 arrest of a South African Muslim woman in Texas whom the federal government has disclosed was a smuggler specializing in moving Middle Easterners — including those with ties to terrorist organizations — into the U.S. via Texas.

Concern over such incidents has been reaffirmed at the highest levels of our national intelligence apparatus. In testimony to the Senate Intelligence Committee in 2005, then Deputy Secretary of Homeland Security James Loy stated: "Recent information…strongly suggests that al-Qaeda leaders believe operatives can pay their way into Mexico and also believe illegal entry is more advantageous than legal entry for operational security reasons." National Intelligence Director Mike McConnell, during and interview with the El Paso Times just last year in which he acknowledged that terrorists have been crossing the southwest border, frame the situation this way: "You’ve got committed leadership. You’ve got a place to train. They’ve got trainers, and they’ve got recruits…The key now is getting recruits in. So if your key is getting recruits in, how would you do that?"

Add to this mix the growing and alarming presence of Middle Eastern terror organizations in Latin America, coupled with the blossoming relationship between that region’s anti-U.S. radical leaders and the Iranian godfathers of terror-sponsorship, and one can only conclude that this problem with escalate. In Congressional testimony earlier this year, the Center for Security Policy’s Nancy Menges outlined Venezuelan strongman Hugo Chavez’s growing ties with Iranian President Mahmoud Ahmadinejad, which in turn is creating inroads for the latter to the leadership in Nicaragua, Ecuador, and Bolivia. According to Menges, U.S. Southern Command has acknowledged Venezuela’s Margarita Island is "one of the most important centers of terrorist gathering and money laundering activities for Hamas and Hezbollah." While these developments surely pose grave security risks for the people of Latin America, it does not take a leap of imagination to see in them a foothold for terrorist penetration in the United States.

CONGRESS HAD THESE and other security issues in mind when it passed Section 102 of the REAL ID Act of 2005. Back in 1996, Congress had authorized the construction of a border security fence along the southwestern border to deter illegal crossings. Section 102 of the REAL ID Act amended the 1996 law by granting the Secretary of Homeland Security "the authority to waive all legal requirements [as the Secretary] determines necessary to ensure expeditious construction" of the fence. Acting on this authority, Secretary of Homeland Security Michael Chertoff notified the public in October of 2007 that he was waiving numerous environmental laws in order to expedite fence construction in an area known as the San Pedro Riparian National Conservation Area (SPRNCA) in Arizona, which Chertoff had identified as "an area of high illegal entry." This was followed by the use of two more waivers last month to advance construction in parts of Texas, New Mexico, Arizona, and California.

Environmental organizations such as the Sierra Club and Defenders of Wildlife apparently are not bothered by the security risks that such a porous border creates — at least not enough to restrain themselves from filing a lawsuit to prevent the DHS from doing the job that Congress is requiring it to do. The primary complaint driving this move: construction of a border fence would cut off cross-border populations of the same endangered jaguar and ocelot species from breeding with one another. It should be noted that these and other environmental concerns registered by environmental organizations and certain quarters of some border communities persist despite the fact that DHS, even after having used its waiver authority, continues to consult extensively with other federal agencies, state and local governments, community organizations, and concerned citizens about how to minimize the fence’s environmental impact.

Bu these DHS efforts are insufficient for the plaintiffs, who are proceeding with the litigation on constitutional grounds. The lawsuit alleges that Congress’s grant of waiver authority to DHS in 2005 was impermissibly broad, violating separation-of-powers doctrine by effectively delegating to the executive branch Congress’s authority to repeal laws.

This reasoning did not persuade Judge Ellen Huvelle of the U.S. federal district court in Washington, D.C. Judge Huvelle ruled last December that the overwhelming weight of U.S. Supreme Court precedent affirmed the constitutionality of the waiver. The Sierra Club and Defenders of Wildlife have since appealed the case directly to the Supreme Court, because the REAL ID Act — again, in the interest of expediting border fence construction — eliminated the option of appealing district court decisions on the DHS waiver to any of the federal appellate courts, making direct appeal to the Supreme Court the only legal option left. While the Court has yet to determine whether it will hear the case, the history of prior Court opinions on matters of Congressional delegation to the executive branch, as outlined by Judge Huvelle and echoed by some legal scholars, suggests that DHS would likely prevail. In the final calculus, however, this matter may not end with the courts but rather with Congress, which is why there is reason to remain deeply concerned about the fate of border security.

It is disturbing yet not all that surprising that the Sierra Club and Defenders of Wildlife have unreasonably chosen to prioritize jaguar populations over millions of Americans who remain targets of terrorism. The Natural Resources Defense Council, a fellow traveler in eroding national security in pursuit of its own brand of environmental purity, has successfully (for now) used the court system to prevent the Navy from conducting critical sonar training off the West Coast for fear of the alleged harm sonar frequencies cause to whale and dolphin populations. The actions of these organizations are indicative of a worldview according to which national security risks are either non-existent, exaggerated, or simply not worth fussing over they can’t be addressed by measures that meet the loftiest standards of green.

BUT WHAT SHOULD surprise us — indeed, alarm us — is that some Members of Congress who exercise significant power when it comes to national security are lining up to unravel progress towards this critical fence. Fourteen Members of Congress have filed an amicus brief in support of the plaintiffs’ position that the waiver power authorized by Congress in 2005 is an unconstitutional delegation of legislative power to the executive. Those Members include the Chairman of the House Committee on Homeland Security, Rep. Bennie Thompson (D-Mississippi), and the Chairman of the House Permanent Select Committee on Intelligence, Rep. Sylvestre Reyes (D-Texas).

Thompson and Reyes having signed onto this amicus brief is indicative of one of two things: (1) either these Chairmen of committees critical to our national security have not been fully briefed on the threat that terrorists could infiltrate the U.S. via the southwest border, and have already done so — a proposition difficult to believe; or (2) these Chairmen, despite their responsibilities to help protect the United States from the next terrorist attack, have joined the "can-do-no-right" crowd, letting themselves become enmeshed in a partisan mentality that places higher priority on reflexively depicting this administration as abusive of its national security authority than on coming up with meaningful solutions that will actually prevent terrorism. In the process, these Members have already provided another boost for environmental "lawfare" that will likely encourage similar litigation in the future.

If legal efforts to nullify Chertoff’s waivers fail, Congressional repeal of the waiver authority may turn out to be the only conceivable option for those bent on tying the hands of the DHS on construction of the border fence. Rep. Raul Grijalva (D-Arizona) has already introduced legislation that would do just that, and it continues to gather co-sponsors. Hopefully there are still enough Members of Congress who remain mindful of the non-jaguar population when pondering the future of border security.

Ben Lerner is Senior Research Associate with the Center for Security Policy in Washington, D.C.This article was published in The American Spectator.