The Bergdahl deception

Today the Army announced that Bowe Bergdahl will be court-martialed on charges of desertion and misbehavior before the enemy. Given the public comments of his platoon mates on the deal that resulted in his release, the file that supports the charges brought against him must be staggering.

Who can forget the celebration that President Obama orchestrated with Bergdahl’s parents at the White House to mark his return, or national security adviser Susan Rice’s praise of Bergdahl (“he served with honor and distinction”) in the face of the doubts raised about the celebration by his fellow soldiers in his platoon? The scenario disgraced and disfigured the high offices they hold.

Obama secured Bergdahl’s release in exchange for five of the worst Taliban officials detained at Guantanamo. At least some of them will resume their sinister activities shortly if they have not done so already. Coming as they do in the context of the final stages of the deal in process with Iran, the charges cast a wider illumination.

Congress was cut out of the deal; Obama declined to provide Congress the legally required notification to which it was entitled in connection with the release of the detainees.

As a “deal,” the exchange was pathetic. We gave up five former Taliban commanders and officials for a deserter whose desertion aided the enemy. The trade served as a pretext for otherwise indefensible actions in furtherance of Obama’s misguided mission to close Gitmo.

The war was supposedly over, except it’s not, and we were obligated to do anything necessary to bring Bergdahl home, even if he deserted, except we weren’t. Is there any precedent vindicating the supposed principle cited for the Bergdahl deal? Neither Obama nor Rice cited one. It remains a bad deal wrapped in deceitful rhetoric and a complete humiliation of the United States

Recalling Obama’s and Rice’s praise of the deal, we see that they are willing to say anything in defense of a bad cause. We already knew that, but there is much more to come.

MSNBC, Home of the Incompetent and the Bigoted

MSNBC is in free-fall, with its ratings down more than 40% over the last year. It is no mystery why: MSNBC’s standards are so low that its hosts and guests feel bound by no standards of intelligence or decency. A case in point occurred earlier today, when a guest on the Alex Wagner show, Jamilah Lemieux, said this about Ted Cruz’s statement that he started listening to country music because of the genre’s reaction to the September 11 attacks:

Nothing says “let’s go kill some Muslims” like country music, fresh from Lynchburg, Virginia.

Huh? Lynchburg, Virginia?

I mean, really? That’s absurd.

Yes, it was. Let’s go to the tape, which includes an on-air apology delivered by host Ari Melber not long after Ms. Lemieux’s “let’s go kill some Muslims” riff:

To some extent, of course, this episode reflects the fact that it is open season on Ted Cruz across the media landscape. (His taste in music? Seriously?) But MSNBC is a special case; it is hard to think of another “mainstream” news outlet where ignorance and bigotry are so utterly unrestrained. Well, maybe the New York Times.

Higher Ed Bubblegum?

Glenn Reynolds (among others) likes to write about the “higher education bubble.”  But maybe we’ve all missed higher education bubblegum?  With all of the difficulties law schools are having right now with declining enrollment (applications off overall by more than 50 percent from 10 years ago), it is good to know that at least Touro Law School has it’s priorities straight:

Billy Joel and the Law: A Touro Law Conference

On behalf of Touro Law Center, it is my pleasure to welcome you to the conference on Billy Joel & The Law, and to thank you for your participation. This conference follows in the path of previous conferences exploring connections between the work of a singer-songwriter and the American legal system. In 2005, Widener Law School hosted The Lawyer as Poet Advocate: Bruce Springsteen and the American Lawyer, and in 2011, Fordham Law School hosted Bob Dylan and the Law, co-sponsored by Touro Law Center. Building on the success of these events, we will consider ways in which Billy Joel’s work relates to American law, society, and culture. Sessions will offer a wide range of perspectives, including those of judges, lawyers, law professors, and music scholars. We look forward to a meaningful and entertaining event that will foster thought provoking conversations about the relevance of Billy Joel’s work to our understanding of the American legal system.

Hat tip: Paul Caron/TaxProfBlog, where the following comment appears:

Obligatory reminder that Touro:

- Has a 146 median LSAT, down from a 151 just a few years ago.
- Has lost about a third of its entering class size in the last few years.
- Costs nearly $73,000/year between tuition and living expenses
- Only 122 of 230 grads in the class of 2013 found FT, LT, license-required jobs within nine months of graduation at any salary.
- None were in BigLaw, pretty much the only job that can kinda justify $73,000 tuition & living expenses for the school.

It would seem that Touro would have priorities other than hosting a Billy Joel and the Law conference.

I’ll only go if the audience is made to sing Billy’s “Angry Young Man”:

And there’s always a place for the angry young man
With his fist in the air and his head in the sand
And he’s never been able to learn from mistakes
So he can’t understand why his heart always breaks
And his honor is pure and his courage is well
And he’s fair and he’s true and he’s boring as hell
And he’ll go to the grave as an angry old man

Yes there’s always a place for the angry young man
With his working class ties and his radical plans
He refuses to bend he refuses to crawl
And he’s always at home with his back to the wall
And he’s proud of his scars and the battles he’s lost
And struggles and bleeds as he hangs on his cross
And likes to be known as the angry young man.

Unfortunately, not enough law professors, and still fewer politicized students, hjave taken to heart the indispensable middle stanza of the tune:

I believe I’ve passed the age of consciousness and righteous rage
I found that just surviving was a noble fight
I once believed in causes too
I had my pointless point of view
And life went on no matter who was wrong or right.

Actually, scratch that bit about having the audience sing this.  Im fact, how about scratching the conference altogether, and just watching the original:

Liberals Turn on the First Amendment

It is no surprise that today’s Left has little use for free speech. Its predominant tactic is trying to bully its opponents into silence. Still, this New York Times article, titled “First Amendment, ‘Patron Saint’ of Protesters, Is Embraced by Corporations,” is of interest, if only for the lack of self-knowledge on display.

Liberals used to love the First Amendment. But that was in an era when courts used it mostly to protect powerless people like civil rights activists and war protesters.

The First Amendment protects people who are being told to shut up. These days, those people are mostly conservatives.

Tim Wu, a law professor at Columbia, described the shift in First Amendment doctrine in 2013 in The New Republic.

“Once the patron saint of protesters and the disenfranchised, the First Amendment has become the darling of economic libertarians and corporate lawyers who have recognized its power to immunize private enterprise from legal restraint,” Professor Wu wrote.

From legal restraint on speech, yes. That is the purpose of the First Amendment. Corporations like the New York Times Company and the Sierra Club have free speech rights, just like individuals.

In the next two decades, the Supreme Court continued to protect dissent, twice voting to strike down laws banning flag burning. But now, Professor Neuborne wrote, broad coalitions of justices also voted to protect the powerful.

Have you noticed a clause in the First Amendment saying that it doesn’t apply to “the powerful?” No, I haven’t either. Of course, when liberals refer to “the powerful,” they don’t mean journalists, liberal philanthropists, labor unions, government officials and so on. They mean people who have money that the liberals would like to get their hands on.

Before 1976, First Amendment challenges from corporations generally involved companies in the business of free expression, like newspapers, book publishers and film producers. More recently, companies have filed free-speech challenges to laws regulating how ordinary products may be marketed or advertised.

Of course, the First Amendment doesn’t only apply to people who are “in the business of free expression.” It protects you and me, and companies that don’t publish newspapers, too.

Professor Coates also analyzed data from federal appeals courts, finding that “businesses are growing steadily more aggressive in their use of the First Amendment.” Court dockets these days are full of free-speech challenges from pharmaceutical firms, tobacco companies, miners, meat producers and airlines.

Such lawsuits, he wrote, have pernicious consequences for both free enterprise and the rule of law. Corporations are diverting resources from research and innovation to litigation, he wrote.

This is unintentionally hilarious. Litigation distracts companies from research and innovation? Do tell! Liberals have finally found a category of litigation they don’t like.

In a recent essay, Laurence H. Tribe, a law professor at Harvard, offered a cautious partial defense of the Citizens United decision. But he said it was an instance of a larger phenomenon.

“It is part of a trend in First Amendment law that is transforming that body of doctrine into a charter of largely untrammeled libertarianism,” he wrote….

“A charter of largely untrammeled libertarianism” is a pretty good description of the First Amendment, and, for that matter, the Constitution as a whole. Liberals’ hostility toward free speech is merely a function of the fact that their oxen are now, on occasion, being gored.

Behind Obama’s faux outrage at Netanyahu

David Bernstein highlights the astonishing dishonesty behind President Obama’s latest case of “faux outrage” at Benjamin Netanyahu. The premise for Obama’s outrage is Netanyahu’s statement just before the election that, given regional instability and the PA’s collaboration with Hamas, there will be no Palestinian state under his watch.

Netanyahu has since softened this position a bit. But Team Obama harumphs that it doesn’t believe the softened version and that election rhetoric has consequences.

Bernstein shows, however, that Obama knows the election rhetoric in question was a response to his own anti-Netanyahu electioneering — specifically to attempts by the president to alienate Netanyahu from his right-wing supporters:

On March 6, less than two weeks before the election, a major Israeli newspaper published a document showing that Netanyahu’s envoy had agreed on his behalf to an American-proposed framework that offered substantial Israeli concessions that Netanyahu publicly opposed. Let’s put on our thinking caps. Where would this leak have come from? The most logical suspect is the American State Department.

So here’s the dynamic: Netanyahu, while talking tough publicly about terms for an Israeli-Palestinian deal, was much more accommodating privately during actual negotiations. Just before Israeli elections, the U.S. government likely leaks evidence of his flexibility to harm Netanyahu. As a result, Netanyahu starts to lose right-wing voters to smaller parties, and the left-leaning major opposition party takes a lead in the polls, putting Netanyahu’s leadership in question, just as the U.S. wanted.

Netanyahu responds by using increasingly right-wing rhetoric (including denying that he ever agreed to the framework in question), to win back the voters from smaller parties that the leak cost him. He wins, and almost immediately announces that his campaign rhetoric was misunderstood, and that he still supports a two-state solution when conditions allow. The Obama Administration then announces it nevertheless has to reassess relations with Israel, allegedly because Netanayahu is no longer committed to the two-state solution.

In sum, Obama knows that Netanyahu has shown flexibility with the Palestinians during negotiations; tries to use this flexibility against Netanyahu in the election; and now uses Netanyahu’s defense against Obama’s gambit as the basis for attacking the Israeli prime minister in the election’s aftermath. Netanyahu responds that he is, in fact, amenable to negotiating flexibly. Team Obama, having almost surely leaked evidence of Netanyahu’s flexibility, pretends not to believe that Netanyahu is flexible.

In a way, you have to admire the deep cynicism of Obama’s game. If only he played anything approaching this level of hardball with Iran and Russia. Unfortunately, Iran and Russia aren’t his enemies.

What is the purpose of Obama’s dishonest attack on Netanyahu? Ideally, he’d like to pressure Netanyahu into making more concessions to the Palestinians than he previously has. There’s a long pattern of manufacturing outrage at Netanyahu for this purpose.

But Obama probably understands that there isn’t going to be a peace agreement during the relatively short remainder of his administration and that, thereafter, all bets are off. Thus, Obama’s conniving conduct probably has an additional purpose.

Might that purpose be to alienate Israel from America, including American Jews? I suspect so.

Is “Sustainability” Sustainable?

I recall taking in a British comedy sketch on TV over in London many years ago that featured the familiar device of an “interview” with a historical figure—in this case, the Lord Jesus Christ himself. The deadpan interviewer asked, “I suppose you’ll be going around doing your usual miracles again—raising the dead, healing the sick, turning water into wine, and so forth?

NAS Cover copyTo which Jesus replies with a qualification: “Yes—but strictly within the limits of sustainable development.” Which makes all the more propitious the release today of a copious report from the National Association of Scholars on the religious fervor for “sustainability” on college campuses today. The report is entitled Sustainability: Higher Education’s New Fundamentalism, and I heartily recommend it.

The irony is obvious: few things are less “sustainable” today that the business model of many colleges and universities. I’m sure Sweet Briar College emphasized sustainability. (Yup—they do did. Heh.) The basic idea of “sustainable development”—meeting the needs of today without compromising the ability of future generations to meet their needs—is fine in the abstract, but you’ll note that definition doesn’t give much practical guidance about whether you should drill that next gas well or harvest that stand of trees over there. I wrote at some length about this issue for The Public Interest over ten years ago; you can still find the article right here.

Here’s the central point: the best system for ensuring sustainability for future generation is . . . free market capitalism. Guess how many college courses on “sustainability” teach that point of view? You don’t even need both jazz hands moving to count them.

Environmental scientist Timothy O’Riordan warned in 1988 that “It may only be a matter of time before the metaphor of sustainability becomes so confused as to be meaningless, certainly as a device to straddle the ideological conflicts that pervade contemporary environmentalism.” Well, that time has come: like other concepts that could have been sensible and usable if done seriously, “sustainability” has become, as the NAS report notes, completely absorbed into the usual anti-capitalist ideology, and yet another pretext for the central environmental will to extend political control over people and resources:

The goals of the sustainability movement are different. They go far beyond ensuring clean air and water and protecting vulnerable plants and animals. As an ideology, sustainability takes aim at economic and political liberty. Sustainability pictures economic liberty as a combination of strip mining, industrial waste, and rampant pollution. It pictures political liberty as people voting to enjoy the present, heedless of what it will cost future generations. Sustainability’s alternative to economic liberty is a regime of far-reaching regulation that controls virtually every aspect of energy, industry, personal consumption, waste, food, and transportation. Sustainability’s alternative to political liberty is control vested in agencies and panels run by experts insulated from elections or other expressions of popular will.

Some day we’re going to look back on this whole period the same way we now regard the temperance movement and Prohibition. But, as with Prohibition, in the meantime a lot of criminal rackets are taking root.

Fifth Circuit schedules hearing in executive amnesty case

The United States Court of Appeals for the Fifth Circuit has issued an order that sets oral argument in Texas v. United States for April 17. This is the case in which Texas and other states challenge President Obama’s executive amnesty.

In district court proceedings, Judge Hanen temporarily enjoined the government from enforcing Obama’s program to grant lawful status to millions of illegal immigrants. The government has moved for a stay of that order, pending appeal.

The oral argument on April 17, for which two hours have been allocated, will pertain only to the government’s motion for a stay. As for the merits of the injunction, the Fifth Circuit’s order sets a briefing schedule and permits the filing of briefs by a number of amici, including Senators Cruz and Cornyn.

Meanwhile, Josh Blackman notices what he calls a “slight pivot” in the government’s legal argument in favor of staying Judge Hanen’s order:

Now, the government claims that [the executive order] is essential to national security, and that unless Judge Hanen’s order is put on hold, the government will be unable to secure the border and the homeland.

The essence of the government’s argument, as described by Blackman, is this:

In order to help Homeland Security agents quickly distinguish dangerous immigrants from those who pose no threat, the president had to grant. . .quasi-legal status to 5 million immigrants. Once the immigrants sign up. . .they will undergo background checks and receive a biometric ID, making it a lot easier for DHS agents to identify them.

Blackman dismisses this argument, which he deems a smokescreen. He’s probably right on the merits. However, the national security gambit may add a little weight to the government’s argument in favor of a stay, pending resolution of the merits.