Displaying posts published in

July 2016

FBI Director Comey’s Suggestion that Congress’s Gross Negligence Statute Is Invalid By Andrew C. McCarthy

Director Comey’s explanation is now clear, though he did not lay it out in his report earlier this week: The statute criminalizing gross negligence in mishandling classified information is invalid because it does not require proof of intent to improperly transmit classified information to places it is not supposed to be or to people not authorized to have it.

The director claims that the statute has only been used once since its enactment in 1917, and therefore its invocation as written in Mrs. Clinton’s case would be suspect. He implies that the only way to save the statute is for the Justice Department to do what prosecutors routinely tell judges that they are not permitted to do: rewrite the statute – in this instance, to add a higher mens rea proof requirement.

With due respect, this argument is very unconvincing, for at least two reasons:

1. It is implausible to claim, as Director Comey does, that a criminal statute is implicitly invalid if the mens rea (state of mind) element merely requires proof of gross negligence rather than intent to cause harm. Let’s consider the causing of death, a consequence similarly grave to compromising our national security by mishandling classified information. I believe every state in our country criminalizes the negligent causing of death. Here, for example, is what judges in Connecticut instruct juries in every such case:

For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt:

Element 1 – Cause of death
The first element is that the defendant caused the death of . This means that the defendant’s conduct was the proximate cause of the decedent’s death. You must find proven beyond a reasonable doubt that died as a result of the actions of the defendant.

Element 2 – Criminal negligence
The second element is that the defendant was criminally negligent in causing the death.

Conclusion
In summary, the state must prove beyond a reasonable doubt that 1) the defendant caused the death of , and 2) the defendant was criminally negligent when (he/she) caused the death.

Notice: there is absolutely no requirement that the prosecutor prove that the defendant intended to do harm or cause death. It is merely required that the prosecutor prove that the defendant acted negligently and that this negligence caused death.

It would be shocking were a high official to suggest that such prosecutions are constitutionally suspect. They happen all the time, and have from time immemorial.

2. It would be contradictory to require proof beyond a reasonable doubt of both (a) the intentional causing of harm, and (b) the causing harm by gross negligence. We know in our everyday lives that we do not intend the harm we cause when we act negligently. The driver who texts behind the wheel never intends the harm that comes to the passengers when the highly likely accident happens. If Director Comey is correct, though, that would mean that Congress is powerless to criminalize the extremely careless mishandling of classified information by high public officials despite the catastrophic damage it can do to the United States.

For Any ‘Reasonable’ Prosecutor, Damage to National Security Would Outweigh ‘Extremely Careless’ Hillary’s (Largely Irrelevant) Intent by Andrew McCarthy

After masterfully marshaling facts that showed Hillary Clinton was grossly negligent in mishandling the nation’s defense secrets – i.e., after demonstrating that she was patently indictable for a felony violation of federal law – Federal Bureau of Investigation Director James Comey recommended against prosecution. His rationale is even more difficult to justify on close examination than it appeared at first blush.

Director Comey contends that “no reasonable prosecutor” would bring a case due to the former Secretary of State’s purportedly benign intent. In point of fact, her intent – besides being very far from benign – is largely irrelevant: the criminal statute at issue, Section 793(f) of the federal penal code, merely requires proof that the defendant was grossly negligent – or, as Comey put it “extremely careless.” But more importantly, a reasonable prosecutor considering charges would not myopically obsess over Clinton’s state of mind. Far more weighty in the exercise of prosecutorial discretion would be two factors Comey did not cite at all in his presentation: (a) Congress’s purpose in criminalizing the grossly negligent mishandling of classified information, and (b) the harm actually done to the United States which, viewed from the perspective of the intelligence community underwritten by 50 billion American taxpayer dollars annually, was surely immense.

Let’s dispense with the matter of Mrs. Clinton’s intent – a side issue that Director Comey magnified into the dispositive issue. Unlike most criminal statutes, the felony of grossly negligent mishandling of classified information does not call for prosecutors to prove that a defendant intended the harm done. It merely requires proof of gross negligence – which is no different from what Comey compellingly demonstrated was Clinton’s “extreme carelessness” in mishandling national defense secrets.

Consider an analogy: a car passenger tragically dies because the driver is texting behind the wheel. There is no need in the negligent homicide case to prove (and indeed, no possibility of proving) that the driver intended to cause harm to the passenger. The driver is guilty because she purposely engaged in the reckless conduct – texting while driving – that risked the grave and easily foreseeable danger.

Similarly, Mrs. Clinton’s may not have intended to cause harm. In fact, let’s for argument’s sake concede Comey’s premise that she did not intend to make classified information vulnerable to hostile hackers when she purposely caused its transfer from the government’s secure server system to her own woefully non-secure system. Still, the felony statute at issue does not call for proof that she intended the harm done to the United States. Prosecutors need only prove what Comey so ably outlined: Clinton purposely engaged in the reckless behavior – the installation and use of an impermissible and amateurishly non-secure, non-government server system – that made harm to the United States virtually inevitable.

Still, I want to move beyond the lawyerly parsing of mens rea to a more curious aspect of Director Comey’s reasoning. The director implausibly claimed that no reasonable prosecutor would charge Clinton based on the facts uncovered by the FBI. This, as he acknowledged, was not his call to make – prosecutorial discretion is ultimately exercised by the Justice Department lawyers, not the FBI. Yet, as a highly accomplished former prosecutor, Comey offered what he intimated was an exhaustive list of factors any “reasonable” prosecutor would weigh; then, upon weighing them, he determined that they decisively militated against indictment. CONTINUE AT SITE

“We Have Not Yet Appointed a Hebrew” A leading historian of American Judaism discusses Abraham Lincoln’s fascination with the Jews—and Jews’ fascination with Lincoln.JonathanSarna And Meir Soloveichik

At a conference in New York last year, the historian Jonathan Sarna spoke on the subject of his book Lincoln and the Jews. The full interview, conducted by Meir Soloveichik, is included in the just-released volume, What America Owes the Jews, What Jews Owe America. We present an excerpt of their conversation here:http://mosaicmagazine.com/observation/2016/07/we-have-not-yet-appointed-a-hebrew/

Meir Soloveichik: Let me start with the obvious question. More books are written every year on Abraham Lincoln than on almost any other figure in history. But is it so clear that Lincoln was the most important person in American history—more important than say, George Washington? Widening the lens, was he more important for the course of world history than such figures as Napoleon, or Alexander the Great, or Winston Churchill? Why the almost unique fascination with Lincoln in general, and why from a Jewish perspective in particular?

Jonathan Sarna: It’s a fine question. Take the case of Washington and Napoleon. We’re familiar with this story: the story of the great general who becomes a great political leader. It goes back to Joshua. But Lincoln’s story is different: he’s a figure who came out of nowhere, who was probably illiterate in his young life, who later went on to lose several elections—and who only then became what he became. That story is deeply inspiring—in a wholly different way.

But as for who most changed the world, one would be hard-pressed to name anyone who changed the American world, and not just the American world, more than did Lincoln. And here I can cite the testimony of a European Jew. In an essay reflecting on his own childhood, the great scholar Solomon Schechter recalls hearing about Lincoln in Romania as a child—and what a wondrous thing it was to him that a person who came from nothing and nowhere could climb so high and achieve so much.

Nor, for Schechter, did all this have anything to do with the Jews or with the story of Lincoln and the Jews. His essay shows no knowledge of that side of things. But it does touchingly bear on why people all over the world were and remain so impressed with Lincoln, the simple person from a simple background who emerges as president of his country and radically transforms it for the better.

Meir Soloveichik: I wonder whether there isn’t something Jewish about precisely that point. Rabbi Jonathan Sacks points to the story of Moses in the Bible as a kind of literary antitype. Many ancient tales of heroes feature the child of a god or a king who is raised by a peasant and in time discovers his true identity and true destiny. By contrast, Moses is the child of slaves, is raised in the king’s palace, rebels, and becomes a great leader. Could this quality be what attracts Jews in particular to the Lincoln story?

Jonathan Sarna: Yes, in a way. More specifically, I think that many Jews also saw in Lincoln a fellow outsider: one who became, as they aspired to become, a kind of ultimate insider. That, too, is a Jewish story. And Jews saw in Lincoln something else as well: aspects of the archetypal righteous prophet.

Meir Soloveichik: That brings us to the matter of Lincoln’s relations with actual Jews. Born in Kentucky, Abraham Lincoln moves to Illinois, works as a lawyer, gets involved in politics—and meets Jews. Eventually, as you say in your book, he will become the first president actually to have Jewish friends.

Hillary and Comey Delete ‘Equal Justice Under Law’ The FBI exposed Hillary’s crimes — and then let her off the hook. By Deroy Murdock

A core tenet of the American republic is chiseled into marble above the entrance to the United States Supreme Court. Since 1935, it has read:

Equal Justice Under Law

It now should be edited, as follows:

Equal Justice Under Law

These words, on which this nation was built, helped make America exceptional. But FBI Director James Comey on Tuesday morning turned this principle into a punchline.

If Hillary Smith had conducted all of her diplomatic duties via an unauthorized computer server in her home basement, she would be prosecuted.

If Hillary Jones had hundreds of classified e-mails swirling like electrons among her lawless server, her Blackberry, and her tablet computer, she would be indicted.

But Hillary’s surname is Clinton. So, she gets away with this — and more. As Richard Manning of Ameiricans for Limited Government put it, Hillary Clinton is too big to jail.

It would have been one thing if Comey had said about Hillary’s e-mails:

Secretary Clinton did nothing wrong. We spent thousands of hours looking very carefully through her e-mails. She had one server and one phone, and both were as solid as the Hoover Dam. We found an e-mail in which she got official permission to maintain that server in her home in Chappaqua, N.Y. The missing e-mails that she deleted all turned out to be about yoga positions and Chelsea’s wedding dress. The work e-mails that Secretary Clinton delivered to the State Department contained no classified material. Believe it or not, folks, the lady has been telling the truth, the whole truth, and nothing but the truth for 16 months. So, help me God.

Instead, Comey’s 15-minute speech could be summarized as:

Here, in detail, is how Hillary Clinton spilled state secrets and lied about it non-stop since March 2015. Regardless, she should walk away scot-free.

In yesterday’s statement, Comey confirmed that Clinton is an unreconstructed, certified, pathological liar. He exposed at least eight bald-faced lies that Clinton told the American people — again and again and again — throughout this high-profile controversy.

Lie No. 1: Clinton: “I thought it would be easier to carry just one device for my work and for my personal e-mails, instead of two.” (March 10, 2015)

Comey: “Secretary Clinton used several different servers and administrators of those servers during her four years at the State Department, and she also used numerous mobile devices to send and to read e-mail on that personal domain. As new servers and equipment were employed, older servers were taken out of service, stored, and decommissioned in various ways.”

Lie No. 2: Clinton: “I have absolute confidence that everything that could be in any way connected to work is now in the possession of the State Department.” (March 10, 2015)

If Hillary Had Been a Soldier in the Army, Here’s How She’d Be Treated Permanent removal of security clearance and kicked out of the military — and that’s the best-case scenario. By David French

The double standards are painful. I served ten years as an Army lawyer, and one of my responsibilities was advising the command on matters of military justice, including incidents where soldiers mishandled classified information. And if Hillary Clinton was a soldier, she would lose her security clearance, face administrative action, and face the specter of criminal prosecution. I’ve not only seen the pattern, I’ve also participated in the process. Here’s how it would work.

Imagine for a moment that an officer downrange in Afghanistan comes across timely drone footage of suspected insurgents — information that would be clearly Secret (if not Top Secret) at the moment of inception. Unfortunately, however, she doesn’t have immediate access to SIPRNet (for Secret) or JWICS (for Top Secret), so she grabs her iPhone — which is on the base’s civilian WiFi system — and bangs out a text message to a superior officer. She doesn’t describe exactly what she’s seeing, but from context, the message is plain. Shoot or don’t shoot? She needs a decision.

Honestly, it’s hard to imagine such a moment. It’s so counter to military training and the military ethos that actions like this are few and far between. But Hillary is nothing if not special, and it’s clear from FBI Director Comey’s press conference yesterday that she sent and received e-mails concerning “matters that were classified at the Top Secret/Special Access Program level” on her homebrew system, a system less secure than Gmail.

If Hillary were Captain Clinton instead of the presumptive Democratic nominee and wife of a disbarred former president, the following things would occur, more or less simultaneously.

First, the command would immediately suspend her security clearance. As a practical matter, this would mean that she would be unable to do her job. Absent extraordinary circumstances, she would become essentially useless to the command, a glorified manual laborer fit to fill sandbags or clean latrines but little else. Unless the officer is cleared, the loss of a security clearance means the loss of her career.

“AL QUD’S DAY IN LONDON” DAVID COLLIER

3rd July 2016. It’s ‘Al Quds’ day. An annual event held on the last Friday of Ramadan. Yet another of the ever increasing number of days where an excuse is found to march against Israel. This particular day was introduced by the Islamic Republic of Iran in 1979. With Hezbollah symbolism ever present in these ‘Al Quds’ marches, that flavour is never far from sight.

I arrived with my family at Oxford Circus Station. Holding their Israeli flags, they continued on their way towards the counter demonstration to be held near the US embassy. Unlike previous years, grassroots groups such as Sussex Friends of Israel and the Israel Advocacy Movement, had vowed the Zionists would not leave the streets to the extremists.

I was envious. However, I had other things planned for myself. I reached the corner of BBC Broadcasting House in Portland Place, placed a scarf with Palestinian colours around my neck, pulled the hood of the jacket over my head as a disguise and entered the opposition camp.

Upon arriving I was handed a flag calling for the boycott of Israel, and slowly the crowd swelled. A coach arrived, then another. The antizionist Neturei Karta were placed at the front of the demonstration. They were kept that way. A line of protecting stewards were placed behind them and if anyone else tried to nudge to the front during the march, they were pulled away. Jews had to be on the front line, however unrepresentative they may be.

Hezbollah T-shirts, Nasrallah T-shirts, Khomeini T-shirts. These people marched proudly through the streets of London. Someone had a placard that read ‘ We are all Hezbollah’. And I marched with them. Support for radical Islamic extremists. Maybe 350 people in total, maybe slightly more. The demographic was clearly one sided. Over 80% of them looked Middle Eastern themselves. Arabic was the language most spoken.

I was not in this alone. There were two others, acting out as reporters from an international news agency. One of them was swiftly identified and removed from the crowd. The other tried to mingle, eventually talking to someone wearing a Nasrallah T-Shirt who began to glorify terrorists.
The march of the Hezbollah in London

And we walked amidst this hatred. The drum beat ever present. The mob’s conductor leading the way with the usual chants. Right through Oxford Circus, Regent Street, Bond Street, the heart of London’s main shopping district. Hezbollah flags were waving all the way. I saw a boy, maybe 13 or 14, holding the terrorist flag. At some point I was handed a large Israel hating placard to hold aloft. I soon disposed of it, my co-operation would only carry so far.

Such extremism. Such hatred. There will be no peace, there will be no progress, until this venom is extracted from the conflict. The irony that on this day in North London, left wing Zionists had gathered at a Haaretz conference to discuss the issue of peace was not lost on me. With all the will in the world, theirs is a bubble that at the moment, simply does not exist.

You cannot negotiate with this. Nor will peace move forward whilst this mob is allowed to spread its poison. This is blind hatred. Self- chosen ignorance, bias, and yes, not a little antisemitism. Those few in the crowd that were not Islamic radicals fell into two distinct groups. Those on the very far left, and those on the very far right. An absurd political marriage enabled only by a mutual hatred of Jews.

Germany: Hundreds of pro-Israeli activists oppose Al-Quds Day in Berlin Video

https://www.youtube.com/watch?v=V6W9C5u44Fs
Hundreds of pro-Israeli activists, including Berlin senator Frank Henkel, participated in a counter-protest against Al-Quds Day in Berlin, Saturday.

David Singer: Quartet and Two-State Solution Sink into Political Oblivion

The Quartet – America, Russia, the European Union and the United Nations – has effectively consigned any negotiated two-state solution to political oblivion with its latest Report.

Two statements in the Report stymie any resumption of negotiations – stalled since April 2014.

1. “The Quartet reiterates that unilateral actions by either party cannot prejudge the outcome of final status negotiations and will not be recognized by the international community.”

Unilateral actions by the Palestinian Authority – disbanded in January 2013 – have already seen the international community:

(i) Admit “Palestine” as a member State of UNESCO on 29 October 2011 in contravention of UNESCO’s own constitution

(ii) Accord “Palestine” non-member observer State status in the United Nations on 29 November 2012.

Such acts of recognition by the international community – over Israel’s strident objections – have hardened Palestinian demands and expectations that their goals can be achieved without negotiations requiring any concessions to Israel.

Reversing these decisions is a Quartet pipe dream.

2. “Gaza and the West Bank should be reunified under a single, legitimate and democratic Palestinian authority on the basis of the PLO platform and Quartet principles and the rule of law, including control over all armed personnel and weapons in accordance with existing agreements.”

Reunification under the “PLO platform” sounds the death knell for the Quartet’s mediating role and the two-state solution.

Hamas will certainly not become a willing player in its own extinction.

The Quartet obviously has not considered how such reunification could be achieved whilst Hamas’s own Covenant declares:

‘Secularism completely contradicts religious ideology. Attitudes, conduct and decisions stem from ideologies. That is why, with all our appreciation for the Palestinian Liberation Organization – and what it can develop into – and without belittling its role in the Arab-Israeli conflict, we are unable to exchange the present or future Islamic Palestine with the secular idea. The Islamic nature of Palestine is part of our religion and whoever takes his religion lightly is a loser.

Fort Pierce Islamic Center’s Terror-Related Past and Present A suicide bomber, a mass murderer, a Taliban supporter, and a Hamas-related spokesman.Joe Kaufman

yed Shafeeq Ur Rahman, imam of the Islamic Center of Fort Pierce (ICFP), claims that his mosque – the same mosque where Orlando terrorist shooter Omar Mateen regularly prayed at – condemns radical Islam. But if that is so, then why, following the shooting, would the mosque retain a spokesman who is a leader from the Council on American-Islamic Relations (CAIR), a group that has numerous associations with the terrorist organization Hamas?

The Islamic Center of Fort Pierce or Masjid Subul-as-Salam was incorporated in September 2003. Its founder was Shafeeq Rahman. Today, Rahman is the mosque’s imam and president. The mosque is a converted church, located at 1104 West Midway Road and owned by Azaan, Inc., a Florida business run by the mosque’s Secretary and Treasurer, Imtiaz Jehan Khan.

Weeks ago, the mosque made the news, following the murders of 49 innocent people at Orlando’s Pulse LGBT nightclub by one of the mosque’s congregants. This had been the second large scale terrorist attack linked to the mosque in as many years.

The first was a suicide attack carried out in Syria by then 22-year-old Palestinian-American Moner Mohammad Abu-Salha, aka Abu Hurayra al-Amriki. Abu-Salha was a follower of deceased Muslim cleric Anwar al-Awlaki, an al-Qaeda leader who died via a US drone strike in September 2011. Abu-Salha had flown from the US to Turkey and made his way over the border into Syria, soon to join up with al-Qaeda affiliate al-Nusra Front.

In May 2014, Abu-Salha, as a member of al-Nusra, drove a massive truck bomb into a restaurant in Jabal al-Arbaeen filled with Syrian government soldiers. This was said to be the first suicide bombing performed by an American within Syria.

The second attack associated with ICFP took place on June 12th, when Omar Mir Seddique Mateen, also an admirer of al-Awlaki, entered the Pulse in Orlando and shot and killed 49 people and injured 53 more. During the attack, Mateen placed a call to 911 to claim responsibility for the attack and pledge his allegiance to the leader of ISIS. He stated, “I pledge… allegiance to Abu Bakr al-Baghdadi of the Islamic State.” He, as well, expressed his solidarity with those who carried out the April 2013 Boston Marathon bombing and Abu-Salha, who perpetrated the Syria suicide attack.

Antwerp: Magnet for Muslim Terrorists Large Jewish community of the city lives in fear. Emerson Vermaat

Not only Brussels, but Antwerp too, is a significant terrorism hub in Belgium. By January 2016 there were about 440 Belgian jihadists in Syria and Iraq, and most of them were young Muslims from the suburbs of Brussels and Antwerp.

It was in Antwerp in March 2010 that Fouad Belkacem, a Belgian radical Muslim of Moroccan descent, established “Sharia4Belgium.” The group was actively involved in recruiting young Belgian Muslims for the jihad in Syria and Iraq. A Belgian court in Antwerp ruled in February 2015 that “Sharia4Belgium” was a dangerous terrorist organization and that Belkacem and his followers were responsible for sending dozens of young men to Syria. Belkacem, an arrogant and intolerant man, got a 12-years prison sentence.

On June 25, 2016, Belgian Federal Police arrested 38-year-old Saïd M’Nari in the Antwerp suburb of Borgerhout. M’Nari was Belkacem’s right-hand man and left for Syria in May 2013, where he reportedly joined the notorious terror group Al-Nusra, which is linked to Al-Qaeda. The Flemish Arabist Pieter Van Ostaeyen claims, however, that it is quite possible that M’Nari joined the so-called “Islamic State in Syria and Iraq” (ISIS or IS). “We don’t know which group he belonged to,” Van Ostaeyen told a Dutch radio reporter.

What is certain, however, is that M’Nari’s close friend, Hicham Chaib, is now fighting in the ranks of ISIS. Hicham Chaib is from the problematic Antwerp suburb of Borgerhout and became Belkacem’s “bodyguard.” He traveled to Syria in March 2013. The Antwerp court sentenced Chaib in absentia on February 11, 2015 to 15 years in prison.

Shortly after the ISIS-sponsored terrorist attacks in Brussels on March 22, 2016, Chaib, a war criminal, appeared in an ISIS video showing the execution of an ISIS opponent by him. He also announced in Flemish that there would be more terror attacks. “Just like you are bombing us, we will retaliate by killing you. Your women will be made widows and your children will be orphans. … We are not scared, but you are. You have been humiliated.”

M’Nari was sentenced by the court to twelve years in jail, but he was also in Syria at the time. He managed to slip into Belgium at the end of 2015, possibly via the Netherlands. Although he was on the terrorism watch list, no one in Belgium and Holland noticed that he was no longer in Syria but had somehow returned to Europe. He must have used a forged passport and had probably pretended to be a refugee. He would not have been the first terrorist returnee from Syria to do so.