Monthly Archives: August 2014

Laughingstock, Part 2

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I’ve written before about this matter. This week, Spiegel Online International, not a fortress of Conservatism, brought it up again.

John Kerry has spent months rushing from one conflict to the next, but has little show for it. His failures are symptomatic of an America that lacks a foreign policy identity—and of a country that seems uncomfortable with its role as a superpower.

And

In recent days, global diplomacy has seemed like an absurd form of theater, with John Kerry in the role of the tragic hero. He doesn’t look like the secretary of state from a world power, Haaretz jeered, but like “an alien who just disembarked his spaceship in the Mideast.”
…

The helplessness of the world’s most important foreign minister shows just how little influence the US still has in the Middle East. And with each failure, Washington’s influence in the rest of the world erodes as well. A civil war is raging in eastern Ukraine, an agreement with Iran over its nuclear program is still a long way off, Islamist terrorists now control large swaths of Iraq—and the US doesn’t appear to be in a position to do anything about it.

And

Kerry has an “incomprehensible obsession and a sense of messianism,” Defense Minister Moshe Yaalon spat at the beginning of this year. “The only thing that might save us is if John Kerry wins the Nobel Prize and leaves us be.”

Daniel Hamilton of Johns Hopkins University [said,] “What he is lacking is a strategic vision. And he is working with a president who is primarily concerned with domestic issues.”

Sadly, it just doesn’t get any better than this. Unless we take appropriate action this fall. And again in 2016. And again in 2018. And again in….

Appellate Court En Banc Hearings

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The DC Circuit a short time ago held in Halbig v Burwell that Federal regulations regarding Federal health plan exchanges violate Obamacare’s plain language: Federal subsidies, contrary to those regulations, are available only to health plan holders who got their plans through State-run health plan exchanges.

Adam White, in a recent Wall Street Journal piece in the context of that ruling and the Federal government’s subsequent appeal to the DC Circuit to rehear the case en banc, noted a couple of things.

One is how rare en banc (re)hearings are, especially for the DC Circuit:

The DC Circuit rehears virtually none of its cases. Each year the court’s three-judge panels make roughly 500 rulings, but the court averages roughly one en banc rehearing. This year has produced a bumper crop: two. The previous year: zero.

Then he got into why this is so.

…the court’s high standard, found in the Federal Rules of Appellate Procedure: en banc rehearing “is not favored and ordinarily will not be ordered” unless the case satisfies one of two standards. First, an en banc rehearing may be needed to “secure or maintain uniformity of the court’s decisions.” A three-judge panel is not allowed to overrule old precedents, even when precedents are in conflict; only the full court can do so, en banc.

Second, en banc rehearing is appropriate for what the federal appellate rules call cases of “exceptional importance.” For the DC Circuit, this standard has been met almost exclusively by cases raising serious constitutional issues. Over the past decade seven of the nine cases reheard en banc raised difficult questions of constitutional law, such as the rights of Guantanamo detainees or of terminally ill patients.

Cases that will substantially affect the court’s own workings also can be deemed of “exceptional importance.” In 2011, the court sat en banc to decide whether taxpayers could file lawsuits challenging IRS procedures for obtaining tax refunds.

Halbig was a straightforward application of the Obamacare law as it was written. That the 4th Circuit saw this differently isn’t relevant; the DC Circuit can only rehear its own cases, not those of sister appellate courts. There’s no precedent conflict here. Some might argue that the question has Constitutional significance, and I’d agree with them. However, neither set of litigants raised any sort of Constitutional question, and the case and the ruling turned on the law itself. There’s no Constitutional controversy here, either.

What about the case’s “exceptional importance?” Judge Harry Edwards, who dissented in Halbig, wrote this in a 1987 case [Edwards’ emphasis]:

[N]o judge agrees with all of the decisions handed down in the circuit….” But if each judge called for en banc rehearing simply to overturn a panel decision with which he personally disagrees, it would do “substantial violence to the collegiality that is indispensable to judicial decision-making.” Rather, en banc review must be reserved for “the rarest of circumstances… [with] real significance to the legal process.”

In the context ofHalbig, it’ll be instructive to see whether the DC Circuit’s newly appointed judges are appellate judges who happen to be Democrats or whether they are Democrats who happen to be appellate judges.

An Attack on the UNRWA School in Rafah

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…for which the US—President Barack Obama and his mouthpiece, Valerie Jarrett and Samantha Power, and his State Department’s mouthpiece, Jen Psaki, have roundly condemned Israel. A typical Obama administration rush to judgment without tarrying for such trivia as facts.

Lenny Ben-David, Managing Director of the Israel Consult, Inc, and erstwhile Israeli Deputy Chief of Mission in DC, has put together some imagery that sheds light on the…incident…with the school. I’ve reproduced them below, together with Ben-David’s twitter captions of them.

Propagan Scandal at Rafah UN school 1. #Israeli attack took place OUTSIDE school, vics dragged inside. see drag marks pic.twitter.com/s48UVUciG5Rafah_1Propag Scandal at Rafah UN school 2. Pic of vics arranged inside school. All 4 men of military age. See drag marks pic.twitter.com/1ZsDtPkJ5yRafah_2Propag Scandal at Rafah UN school 3. Need a child in pic. Striped shirt man brings her. #Israel claimed hit PIJ men pic.twitter.com/hWWBZdSyIC [To which I add: compare the background of this image with the background of the first image: the child, here, clearly is being carried into the school from the outside.]Rafah_3Propag Scandal at Rafah UN school 4. Striped shirt arranges her pathetic body next to PIJ men. Photogs ate it up pic.twitter.com/KTEgM3qgAdRafah_4Prop Scandal at Rafah UN school 5. Poor girl’s final act. Run w her for cameras. Note water to wash away drag marks pic.twitter.com/5f5k6D602oRafah_5These “casualties” obviously were generated well outside the school and carried in for a cynical arrangement. Which our administration, among others, fell for.

That the school wasn’t even hit, much less the target, is shown here.

Will we see soon (or at any time) an apology to Israel by Obama or any of his minions? Maybe not.

 

h/t Power Line

Another Government Overreach

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In a recent op-ed piece, The Wall Street Journal correctly decried the Financial Industry Regulatory Authority’s CARDS program. This program, cynically named “Comprehensive Automated Risk Data System,” is a program that wants to require all of our brokerage houses to report to FINRA massive amounts of data concerning our investment accounts, including what we’re doing in (with?) those accounts.

The op-ed correctly objected to CARDS’ massive collection of data, saying

FINRA says the ocean of data will help it spot a problem almost in real time, far earlier than if it showed up during a regular examination. …

But the financial crisis showed that more data doesn’t guarantee that regulators will know what to do with the information, and it’s as likely the data flood will overwhelm FINRA.

 

But the WSJ missed a far larger problem with CARDS (and with FINRA generally). The piece cited FINRA’s Chairman and CEO Richard Ketchum’s statement about CARDS’ purpose:

CARDS will allow us to collect and manage data from firms in such a way that we can quickly identify trends and product concentrations that are harmful to investors and take swift, responsive action.

Whose definition of “product concentrations that are harmful?” Why, Big Government’s, of course. This is the real danger of this sort of program: government usurping the free market’s role—and so, deprecating the market—in determining what is harmful. This simply makes the definition of “harmful” a political one, rather than a legitimate one.

What about a Palestinian’s right to freedom?

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This is the headline of a FoxNews op-ed by Faheem Younus, President of the Baltimore branch of Ahmadiyya Muslim Community USA and a senior fellow at the University of Baltimore’s Hoffberger Center for Professional Ethics. It’s a fair question.

Younus asks us to

think of the current Israeli-Palestinian conflict in terms of the movie “Shawshank Redemption,” which shows the quest for freedom of an innocent banker serving two life sentences under hopeless circumstances. The cast goes like this: the criminals are Hamas, the warden is Netanyahu, Andy—the banker convicted of murder—is your average Palestinian, and Shawshank is Gaza.

His strawman includes his claim that ordinary Palestinians—Gazans, actually—are prisoners of the Israeli Prime Minister Benjamin Netanyahu. Then Younus expands his claim:

But lately, the Palestinian’s moral right to exist has become a political wrong to list.

Recently, it has become evident that millions of innocent Palestinians will serve life sentences in this Shawshank, that there is no two-state solution, that their yearning for freedom is being swallowed by the biblical dream of a Greater Israel, stretching all the way from the Jordan River to the Mediterranean.

Of course, Israel has made no such claim. Israel favors a two-state solution (which, of necessity, includes the Palestinians’ “moral right to exist”), having learned from the West’s colonial days, followed by general colonial independence and trade, that the path to prosperity, for Israelis and for Palestinians, including Gazans, is through states freely trading with each other.

While purporting to decry Hamas’ behavior, though, what Younus does not discuss is that when Hamas and Fatah merged under the Palestinian Authority and Mahmoud Abbas’ leadership, the PA became a terrorist state. Younus denies this (without substantiation), and the PA’s initial rhetoric also denied it. The ensuing empirical facts, though, prove the terrorist nature of the unity government, this new PA. The PA launched their latest terror war just weeks after the unity government’s formation; it has pursued its terrorism with rocket attacks against Israel’s nuclear facility; it has pursued its terrorism with endless rocket firings into Israel with the sole purpose of killing as many civilians and children it can; it has pursued its terrorism by storing its rockets in hospitals, UN facilities (it’s impossible to believe the UN had no complicity in this), and private homes; it has pursued its terrorism through firing from these same homes and hospitals; it has pursued its terrorism by using Gazan civilians and children as personal shields in engagements with the IDF; the list goes on and on and on.

The ensuing empirical facts also include these two: the Fatah part of the PA has been utterly silent on this terrorism. Fatah’s silence is a deafening roar of approval of the PA’s terrorism. Also, Abbas has openly stated he agrees with the attacks.

Gazans—ordinary Palestinians—are not at all prisoners of Netanyahu or of Israel generally. They’re hostages of the terrorist PA, and badly abused by it.

As to that rejection of a two-state solution and a favoring of Younus’ mythical Greater Israel, this is what Netanyahu has said:

“If we were to pull out of Judea and Samaria, like they tell us to…there’d be a possibility of thousands of tunnels” being dug by terrorists to attack Israel, [Netanyahu] said. There were 1,200 tunnels dug in the 14-kilometer border strip between Egypt and Gaza alone…. “At present we have a problem with the territory called Gaza,” the Prime Minister said. But the West Bank is 20 times the size of Gaza. Israel, he said flatly, was not prepared “to create another 20 Gazas” in the West Bank.

The Palestinians do, indeed, have their own right to freedom. And to the prosperity that goes with freedom. The path to that, though, demands that the PA release these innocents from their bondage. The path to that demands an end of terrorist wars against Israel. The path to that demands a verifiable—and verified—removal of the PA from its avowed goal of the utter destruction of Israel.