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March 2018

The Legal Case for Striking North Korea First Does the necessity of self-defense leave ‘no choice of means, and no moment of deliberation’? John Bolton

The Winter Olympics’ closing ceremonies also concluded North Korea’s propaganda effort to divert attention from its nuclear-weapons and ballistic-missile programs. And although President Trump announced more economic sanctions against Pyongyang last week, he also bluntly presaged “Phase Two” of U.S. action against the Kim regime, which “may be a very rough thing.”

CIA Director Mike Pompeo said in January that Pyongyang was within “a handful of months” of being able to deliver nuclear warheads to the U.S. How long must America wait before it acts to eliminate that threat?

Pre-emption opponents argue that action is not justified because Pyongyang does not constitute an “imminent threat.” They are wrong. The threat is imminent, and the case against pre-emption rests on the misinterpretation of a standard that derives from prenuclear, pre-ballistic-missile times. Given the gaps in U.S. intelligence about North Korea, we should not wait until the very last minute. That would risk striking after the North has deliverable nuclear weapons, a much more dangerous situation.

In assessing the timing of pre-emptive attacks, the classic formulation is Daniel Webster’s test of “necessity.” British forces in 1837 invaded U.S. territory to destroy the steamboat Caroline, which Canadian rebels had used to transport weapons into Ontario.

Webster asserted that Britain failed to show that “the necessity of self-defense was instant, overwhelming, leaving no choice of means, and no moment of deliberation.” Pre-emption opponents would argue that Britain should have waited until the Caroline reached Canada before attacking.

Would an American strike today against North Korea’s nuclear-weapons program violate Webster’s necessity test? Clearly not. Necessity in the nuclear and ballistic-missile age is simply different than in the age of steam. What was once remote is now, as a practical matter, near; what was previously time-consuming to deliver can now arrive in minutes; and the level of destructiveness of nuclear, chemical and biological weapons is infinitely greater than that of the steamship Caroline’s weapons cargo. CONTINUE AT SITE

#NeverPelosi? More Democrats sour on the minority leader and her war on tax cuts. James Freeman

NeverTrumpers may not be numerous or influential in the Republican Party but they do have a flair for attracting media attention. Receiving much less coverage but perhaps more consequential is the rising revolt against a leader of the other major party in American politics.

Arizona is an interesting case study. The Hill reports on a prominent NeverTrumper in the GOP who chose not to seek re-election and is bound to receive ample press coverage in the months ahead:

Sen. Jeff Flake (R-Ariz.), a frequent critic of President Trump who recently announced his retirement, will visit New Hampshire next month, WMUR reported on Tuesday.

Flake’s appearance in the state, which holds the nation’s first presidential primary, will likely stoke speculation about a possible White House bid.

He will appear at the annual “Politics and Eggs” event, organized by the New England Council and Saint Anselm College, which typically hosts prospective presidential candidates leading up to presidential primary seasons. Trump spoke at the event in January of 2014, before he declared his candidacy.

Mr. Flake’s planned departure from the Senate has inspired Rep. Martha McSally, currently representing Arizona’s second congressional district in the U.S. House, to seek election to his seat. Meanwhile, six Democrats vying to succeed Rep. McSally in the House recently gathered in Sahuarita, just south of Tucson.

The Democratic candidates include a former member of the U.S. House, Ann Kirkpatrick. As you might expect, all the Democratic contenders have significant policy differences with President Trump, but the event also revealed differences with another senior official in Washington.

The Tuscon Sentinel reports that “the candidates were asked to raise their hands if they supported Nancy Pelosi to again serve as the Speaker of the House. Not one of the candidates, including Kirkpatrick raised their hands.” The local non-profit news outlet adds:

Kirkpatrick’s staff later clarified that she would remain a support [sic] of Pelosi’s, saying that she had misunderstood how to respond to the question with a raised hand.

Based on an account in the Washington Examiner, many in the audience could have done without the clarification. The paper has posted a video of the event supplied by a Republican political action committee. According to the Examiner:

In a video captured by America Rising last week, the candidates on the panel participated in a “lightning round” where they were asked to raise their hands if they would support Pelosi’s bid for speaker of the House.

“Now, it is time for a lightning round,” the moderator said. “Will you support Nancy Pelosi for speaker of the House?”

None of the candidates on the panel raised their hand, and the crowd responded with cheers and applause. CONTINUE AT SITE

Career Civil Servants Illegitimately Rule America Leslie Kux has never been elected or confirmed by the Senate. She’s issued nearly 200 regulations. By Todd Gaziano and Tommy Berry

After Kimberly Manor lost her husband to lung cancer, she was inspired to make a dramatic career change. Kimberly now owns and operates Moose Jooce in Lake, Mich., a “vape shop” that sells various electronic nicotine devices. These products use battery-powered coils to vaporize liquids, with differing levels of nicotine or none at all. Thus, vapers may inhale nicotine without the tar or other harmful chemicals in tobacco smoke, since there is no tobacco and no combustion. Scientific evidence suggests this is a much safer alternative to smoking.

Ms. Manor estimates that her business has helped more than 500 people quit smoking, most of them longtime smokers in their 50s or older. Yet the Food and Drug Administration is discouraging more such enterprises. In a regulation issued in 2016 known as the “deeming rule,” the agency ordered that vaping products would be subject to the same regulations developed for the cigarette industry under the Tobacco Control Act of 2009.

The deeming rule has been devastating to businesses like Ms. Manor’s. To give just one example, vape shop owners frequently experiment by mixing new flavors for the liquid “juice.” Now, each separate creation requires its own prohibitively expensive application for FDA approval, which means that vape shops have been forced to stop innovating.

There are many reasons to criticize the FDA’s action, but its most fundamental flaw—and the one that our legal foundation raises in three lawsuits on behalf of Ms. Manor and nine others—is that the rule was finalized by someone without authority to do so. The rule was not issued or signed by either the secretary of health and human services or the FDA commissioner, both Senate-confirmed officials. Instead, it was issued and signed by Leslie Kux, a career bureaucrat at FDA.

This isn’t the first time the FDA bureaucracy has exceeded its authority. HHS officials in prior administrations purported to delegate their rule-making power to the bureaucrats who held the position Ms. Kux now fills—and she has issued nearly 200 rules.

All these rules are invalid. The attempted delegation of rule-making authority to someone not appointed as an “Officer of the United States” violates one of the most important separation-of-powers clauses in the Constitution. CONTINUE AT SITE

Delingpole: The Shocking True Story of How Global Warming Became the Biggest #FakeNews Scare of All Time (Pt 1)

Why do so many apparently informed, intelligent, educated people still believe in ManBearPig?

For the same reason that the U.S. underestimated the Japanese threat before Pearl Harbor; that General MacArthur stupidly advanced north of the 38th parallel in Korea; that JFK got embroiled in the Bay of Pigs disaster; that LBJ dragged the U.S. deeper and deeper into the Vietnam War.

A phenomenon known as ‘groupthink’.

Though the name dates back to a 1952 article in Fortune magazine by William H Whyte, it wasn’t popularized for another twenty years when a Yale research psychologist called Irving Janis used it in the title of his influential 1972 Victims of Groupthink.

Little did he know it – Janis was looking to past events like the ones mentioned above, not the future – but his book would anatomize with unerring accuracy the perverse mindset which would lead to the creation of the biggest, most expensive junk science scam the world has ever witnessed: the great global warming scare.

This is the subject of a must-read paper for the Global Warming Policy Foundation by Christopher Booker: Global Warming – A Case Study in Groupthink.

Though it’s quite a long read, I do recommend you have at least a dip because it contains so many pertinent answers to that question you so often hear from global warming true believers: “What kind of crazy conspiracy theorist would you have to be to think that so many experts from science, politics, business, the media, even the oil industry would lie to us about the scale of the problem?”

But as Booker – via Janis – shows, there’s a much more simple explanation than conspiracy theory. It has to do with the bizarre, but very well documented tendency many humans have towards embracing fashionable nonsense.

Respectfully Disagreeing with David French on FISA Abuse By Andrew C. McCarthy

With undiminished esteem for my friend David French’s legal acumen, I confess to being underwhelmed by his defense of the Schiff memo. I am going to explain why, but I first want to apologize for the length of this column, which owes to the fact that David’s observations provide an opportunity to address the political context of the congressional investigation, which I have not done much of. I appreciate David’s kind words about my analysis of the memo, and that his lukewarm approval of Representative Adam Schiff’s handiwork comes with a healthy dose of concern about government misconduct.

I also appreciate that we do not yet know everything we should know, and may never, which makes it impossible to draw definitive conclusions. But that hardly means we cannot draw any conclusions. The Justice Department sharply departed from its practice of providing courts with corroboration of serious allegations, and from its tradition of candor in dealings with the federal courts. It eludes me why it is so hard to acknowledge this just because we are at an information deficit and must navigate through a political maelstrom.

Investigations and Politics

There is no point complaining about the partisanship unavoidably attendant to this controversy. This is not, say, the financial meltdown or the Iraq War — disputed issues that were politicized unnecessarily, if predictably. This is an inherently political dispute: A situation in which the incumbent Democratic administration used its foreign-intelligence-collection authority to monitor the Republican presidential campaign, and did so making significant use of what David charitably calls “opposition research” from the Democratic presidential campaign.

With due respect, this is not a situation in which, out of the blue, “a congressional majority [has made] substantial charges of Department of Justice wrongdoing.” Against the backdrop of its blatant tanking of the criminal investigation against the Democratic presidential nominee, the Democratic administration’s Department of Justice went to the Foreign Intelligence Surveillance Court in the last three weeks of the presidential campaign to seek monitoring of a former adviser of the Republican presidential campaign — monitoring that would inevitably have revealed campaign communications in stored email and texts, and quite possibly in real-time conversations — based on a stated suspicion that there was a traitorous confederation between the Republican campaign (quite possibly including the Republican nominee) and the Putin regime.

NATIONAL ASSOCIATION OF SCHOLARS: CONFUCIUS INSTITUTE

Nearly one year after the release of Outsourced to China: Confucius Institutes and Soft Power in American Higher Education, NAS’s report remains front page news. Through our work on this issue, NAS has also become a go-to resource for Senators and Representatives considering policy changes to address Chinese government-funded Confucius Institutes at American college campuses.
Earlier this month, Florida Senator Marco Rubio cited NAS’s report in a letter sent to all Confucius Institutes in Florida. Senator Rubio also questioned FBI head Christopher Wray in a Senate Intelligence Committee hearing on February 13, at which Wray acknowledged, for the first time, that the FBI is investigating Confucius Institutes.
NAS has briefed staff members for six U.S. Senators and Representatives; the Government Accountability Office; the House Science, Space, and Technology Committee; and the Congressional-Executive Commission on China. We have recommended specific policy changes to address Confucius Institutes.
Outsourced to China has become one of several key studies—including Academic Malware by University of Chicago anthropologist Marshall Sahlins and the documentary In the Name of Confucius—that have turned Confucius Institutes into a topic of national discussion. We are gratified to note that at least one Confucius Institute, at the University of West Florida, is now preparing to close.
NAS is committed to engaging with members of Congress, academic institutions, and members of the media to promote academic integrity and push back against the rise of Confucius Institutes. We encourage NAS members to learn more about the threat Confucius Institutes pose to academic freedom and institutional integrity by visiting www.nas.org/ConfuciusInstitutes.

Another federal judge goes off the rails By Peter Skurkiss

This one is Judge Juan R. Torruella, of the United States Court of Appeals for the First Circuit in Boston. This 84-year-old dinosaur was nominated to the court in the pre-Reagan era, in 1974, by President Gerald Ford. As a Puerto Rican native and strong advocate for the island, the judge is so troubled by his home island’s financial difficulties that he’s calling for a federal grand jury investigate to see if criminal cases can be made against those responsible for the Puerto Rican government’s monumental debt.

To quote him: “I request an investigation by a federal grand jury to determine if there are criminal cases against individuals and organizations inside and outside of Puerto Rico in relation to the economic crisis facing the country.”

What prompted such an outburst at this late hour? It’s that Judge Torruella notes massive amounts of U.S. taxpayer money is pouring into Puerto Rico in the aftermath of hurricanes Irma and Maria. He rightly worries that the same corruption and incompetence that led to the island’s pre-hurricane financial disaster will be repeated. He doesn’t want to see that money squandered and drained away to political lackeys. Here, the judge has a legitimate concern. However…

If the grand jury honestly looked into the matter, it could indict the entire political establishment of Puerto Rico for malfeasance or misfeasance along with the island’s public-sector unions. And would such an investigation turn into a witch hunt to hook those deep-pocketed outsiders who had the audacity to loan money to Puerto Rico? Probably.

Where the judge really goes off the rails is when he engages in the blatantly political. As the San Juan Daily Star reports:

He also called attention to the “passivity’ with which the island has accepted unequal treatment by the U.S. government, and called for mobilizing what he called “allies” in minority sectors in the mainland U.S. to denounce the violation of Puerto Rican civil rights. “It is time for that passivity to end,” Torruella said. “Our cause is just.”

The judges challenge Trump By James Simpson

We have been watching outrageous judicial usurpation of power for a full year.

On Tuesday, U.S. District Court Judge Philip Gutierrez issued an order preventing President Trump from revoking DACA protections, and is ordering the administration to reinstate all those who have been dropped from the program. This is more astounding judicial overreach in a year marred by such actions. The initial DACA program was a memo, not legislation, not even a legitimate executive order or regulation. Trump has every right as president to revoke it and enforce that revocation, but this judge has the gall to say he can’t.

An earlier circuit court decision handed down in January, blocked Trump from ending DACA in the first place – an action he had initiated last year. The Department of Justice issued an emergency appeal to the Supreme Court to override this decision, but on Monday, the Supreme Court announced that it would not hear it. While this is standard practice when an issue is being litigated in lower courts, the clear abuse of power exercised by these lower courts should compel the Supremes to consider this a special case.

We have been watching this outrageous judicial usurpation of power for a full year. It is sheer lawlessness and has to stop. All public officials swear an oath to protect and defend, not subvert, the Constitution. What they are doing is a threat to the very legal foundations of our Republic.

There is only one punitive remedy that can be taken against such judges. Congress can impeach them. Unfortunately, Congress has impeached only 15 federal judges in its entire history, and only eight of those were actually removed. A good example is the case of Alcee I. Hastings (another U.S. district court judge), who was impeached for accepting a $150,000 bribe to reduce sentences for two mobsters. That is certainly a clear-cut case for impeachment, not to mention significant jail time, but so are these overtly partisan decisions made by judges specifically to thwart the irrefutable authority vested in the presidency.

Half a Century of Blaming White Racism for Black America’s Problems By Thomas Lifson

For half a century, the federal government has pursued a disastrous strategy in addressing the problems of black Americans. They were designated a victim class, and enormous sums of money were expended on incentives to perpetuate that status.

The welfare state has perpetuated multi-generational pathologies, while the encouragement of victimology and the blame placed on white racism have poisoned race relations instead of healing them.

It’s fair to say the United States government began its long and catastrophic commitment to this approach fifty years ago today (or yesterday): February 29, 1968. On that day, the Kerner Commission (officially the National Advisory Commission on Civil Disorders) delivered its report (official summary; full 400-plus pages), and white racism was officially blamed for the problems of black America.

White racism is essentially responsible for the explosive mixture which has been accumulating in our cities since the end of World War II.

In those days, I was already a political junkie who read the New York Times, the Wall Street Journal, and a local paper and watched network news. I remember well the huge fuss the media made over the Kerner Commission Report. It kicked off an extended campaign that was often labeled a “national soul-searching.”

All the smart people you could find in the media pretty much agreed that we just had to commit ourselves to fighting racism as the solution to the problems of the black community. White guilt gained momentum as a force in individual and group decisions.

The effects of the report were far-reaching. The powerful institutions of America were put on notice that consciously or not, they were perpetuating racism:

Segregation and poverty have created in the racial ghetto a destructive environment totally unknown to most white Americans. What white Americans have never fully understood but what the Negro can never forget – is that white society is deeply implicated in the ghetto. White institutions created it, white institutions maintain it, and white society condones it.

Speakers Cornered The anti-free-speech mob comes to Britain. Theodore Dalrymple

One of the most beautiful towns in England, Lewes is relatively unspoiled by the twentieth-century British architectural incompetence that has proved so destructive of urban grace, spreading the most hideous ugliness almost everywhere as a kind of metonym for social equality. From Lewes’s streets can be seen the lovely, rolling downs of Sussex, and it is curious how the sight of green hills from the center of a town or city (still possible in Dublin, for example) soothes the mind. Among Lewes’s most famous residents were Thomas Paine, author of The Rights of Man, and Charles Dawson, the man most likely to have forged Piltdown Man, the hoax human fossil whose inauthenticity was not exposed until 40 years after its “discovery” in 1912. To my great delight, Lewes’s High Street has three excellent secondhand or antiquarian bookshops.

I had been invited down to a literary event, the Lewes Speakers Festival, to talk about my recently published memoir of life as a prison doctor, The Knife Went In. I was to be the penultimate speaker, followed by a controversial conservative journalist, Katie Hopkins, who was to talk about her own recently published memoir, Rude.

The event ended in violence.

The festival organizer, Marc Rattray, had informed me in advance that there might be trouble from demonstrators who would want to prevent Hopkins from speaking. No doubt it is a measure of how detached I am from the ordinary life of my country that I had until then scarcely heard of her, for she is either loved or abominated by millions of my fellow countrymen. (I would have guessed, if put to it, that she was an actress or a pop singer.) Some love her because she says things that many think but dare not say, while others abominate her, accusing her of bigotry and spreading hatred—hatred directed at the wrong people, that is.