“Below is my column in The Hill newspaper on the litigation against the declaration of a national emergency by President Donald Trump in order to build his long-promised wall. Some members of Congress has said that they expect the House of Representatives to sue while private litigants have already filed challenges. Regardless of the litigants (and there are likely to be a mix of parties), they face similar barriers in convincing a federal judge to rescinded a declaration that Congress has not rescinded.
This is a straight statutory interpretation case, not the “constitutional crisis” widely described by critics. There are possible claims against the funding conditions, but Congress gave the President not just the unfettered authority to declare such emergencies but the largely unconditioned appropriations that he may use to build the wall.
Here is the column:
Justice Oliver Wendell Holmes once said, “If my fellow citizens want to go to hell, I will help them. It is my job.” He was expressing the limited role of courts in challenges to federal law. It is not the task of judges to sit as a super legislature to question the agendas of the political branches. They will gladly send Congress to hell. It only needs to point to the destination.
In the matter of the border wall, Congress could not have been more clear where it was heading. It put itself on the path to institutional irrelevancy, and it has finally arrived. I do not agree there is a national emergency on the southern border, but I do believe President Trump will prevail. This crisis is not the making of Donald Trump. This is the making of Congress.
For decades, Congress frittered away control over its authority, including the power of the purse. I have testified before Congress, warning about the expansion of executive power and the failure of Congress to guard its own authority. The two primary objections have been Congress giving presidents largely unchecked authority and undedicated money. The wall funding controversy today is a grotesque result of both of these failures.
Start with the National Emergencies Act of 1976. Presidents have long declared emergencies based on their inherent executive authority. The use of that authority produced some conflicts with Congress, the most famous seen in the case of Youngstown Sheet & Tube Company versus Charles Sawyer, in which the Supreme Court declared that the federal seizure of steel mills during the Korean War was unconstitutional because Congress had never granted President Truman that authority.
However, Congress later gave presidents sweeping authority under the National Emergencies Act of 1976. While this law allows for a legislative override by Congress, the authority to declare national emergencies is basically unfettered. It is one of many such laws where Congress created the thin veneer of a process for presidential power that, in reality, was a virtual blank slate. At the same time, Congress has continued to give the executive branch billions of dollars with few conditions or limitations.
This is why President Obama was able to go to war in Libya without a declaration and fund the entire war with billions of undedicated funds. Neither House Speaker Nancy Pelosi nor most of the current Democratic leadership made a peep of objection at this. But when it comes to the wall, Democrats have indicated they will rely on the ruling in House of Representatives versus Sylvia Burwell, in which the court declared the House of Representatives had standing to sue over executive overreach and that Obama violated the Constitution in ordering the payment of billions to insurance companies without authorization from Congress.
I was lead counsel for the House of Representatives in that case. Ironically, Pelosi vehemently opposed the litigation as a frivolous and unfounded challenge to presidential authority. We won the case. Superficially, it may look like the wall controversy. Obama sought funds from Congress and, when unsuccessful, acted unilaterally. But Obama ordered the money directly from the Treasury as a permanent appropriation, like the money used to pay tax refunds. Congress had never approved such payments.
Conversely, Trump is using appropriated funds. Like the authority under the National Emergencies Act, Congress gave this money to the executive branch without meaningful limitations. Trump now has almost $1.4 billion in newly approved funds to use for border protection. He has identified about $8 billion in loosely dedicated funds for military construction, drug interdiction, and forfeitures. Even if a court disagreed with the use of this money, Trump has the power and funds to start construction of the wall.
Congress has yielded more and more power to the executive branch over decades. In many areas, it has reduced the legislative branch to a mere pedestrian in government, leaving real governing decisions to a kind of “fourth branch” of federal agencies. For their part, presidents have thus become more and more bold in circumventing Congress. When Obama gave a State of the Union proclaiming his intention to bypass Congress after it failed to pass immigration reform, Democrats applauded loudly.
Many of them, like Pelosi, denounce this unilateral action by Trump yet ecstatically supported the unilateral actions by Obama, including his funding of some critical parts of the Affordable Care Act after Congress denied any funds. Democrats insist Trump can be challenged on his use of emergency authority since they do not believe an emergency exists on the southern border. They will fail spectacularly if the case gets to the Supreme Court. While the source of funding can be challenged, there is no compelling basis to challenge the national emergency declaration.
The reason? Congress has never been particularly concerned over past declared emergencies, which have continued with perfunctory annual renewals. Most such emergencies are entirely unknown to the vast majority of Americans. Indeed, the first proclamation of a national emergency occurred under President Wilson in 1917, “arising from the insufficiency of maritime tonnage to carry the products of the farms, forests, mines, and manufacturing industries of the United States.”
Remember that national emergency over the “anchorage and movement of vessels” with respect to Cuba? How about the national emergency over uncut diamonds from Sierra Leone? Then there were the declarations over property owned by certain figures in Zimbabwe, the presidential election in Congo, and issues concerning Yemen, Burundi, Myanmar, Lebanon, Somalia, and South Sudan. All of these were “national emergencies.”
Curiously, Pelosi has called for the declaration of a national emergency to deal with the “epidemic of gun violence in America.” She also said that she wished Trump would add that declaration but that a “Democratic president can do that.” Yes, a Democratic president certainly could, and that is the key point here. Congress gave all presidents the power to make such declarations, and Pelosi is now making the case for Trump today.
While Democrats insist this emergency declaration is simply an effort to use executive power to get what Congress would not give Trump, any litigation would be an effort to use judicial power to do much the same thing. The House of Representatives would try to convince a federal judge of the merits against a wall, after failing to convince enough members of Congress to override the emergency declaration and a presidential veto.
That brings us back to Holmes. Congress has the authority to rescind the national emergency declaration of Trump with a vote of both chambers. The legislative branch should do so. If Congress cannot muster the votes, however, a federal judge is unlikely to do so. Simply put, the courts were not created to protect Congress from itself. Congress has been heading to hell for decades, and it is a bit late to complain about the destination.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.
Obama Declared 13 National Emergencies — 11 Are Still Active
“There are a lot of national emergencies going on. In fact, there are 31 active national emergencies declared under the National Emergencies Act.
Bill Clinton used this authority 17 times. President Trump has only used it three times so far.
Sorry Democrats, this “national emergency” business is not quite the work of “dictators.”
Conservative Tribune reports: “Of Obama’s 11 continuing national emergencies, nine of them were focused exclusively on foreign nations, while only one seemed focused on protecting America — a declaration aimed at punishing individuals “engaging in significant malicious cyber-enabled activities.”
All of the rest of Obama’s national emergencies were focused on blocking property or prohibiting transactions/travel for individuals engaged in various activities in — by order of the date of enactment — Somalia, Libya, transnational criminal organizations, Yemen, Ukraine, South Sudan, Central African Republic, Venezuela and Burundi.
The American people stand with President Trump following his amazing Oval Office address explaining the human cost of illegal immigration.
If President Donald Trump uses the U.S. military to build the border wall along the United States’ international with Mexico by declaring a national emergency, won’t liberals simply run to a Federal judge whom they believe to be left-wing within the Ninth Circuit and block Trump? Can Congress vote to overturn Trump’s declaration of an emergency?
No. If the federal courts actually follow the law, President Trump cannot be prevented from “reprogramming” funds appropriated for the U.S. Department of Defense and actually using the military (such as the U.S. Army Corps of Engineers) to build the border wall.
As noted in the first installment on this topic, Congress has given a president the power to declare a national emergency by 50 U.S.C. 1621 and 50 U.S.C. 1622. A declaration of an emergency allows the President to reprogram funds in the military budget. See 33 U.S. Code § 2293 “Reprogramming during national emergencies.”
Trump could reprogram funds from other parts of the Department of Defense budget — including from other DoD construction projects such as on bases, military housing, etc. — and engage in construction in areas of need for the national defense. The statute says that explicitly (although statutes are never easy reading).
But Democrats are threatening and commentators are warning that such an action would be challenged in court and in Congress immediately. Can such a plan be blocked?
First, 50 U.S.C. §1622 allows the Congress to over-turn a president’s declaration of an emergency. If both the Senate and the House each pass s resolution terminating the President’s declaration of an emergency, than the emergency status terminates under 50 U.S.C. §1622. But clearly the Republican-controlled U.S. Senate would not join the Democrat-controlled U.S. House of Representatives. Unless a significant number of Republican Senators vote against a border wall built by the U.S. Army Corps of Engineers or contractors with military funds, Congress could not block Trump’s efforts.
(Note, although I argue in the next section that this power has been invalidated by the U.S. Supreme Court, if a court disagrees on that, a legislative veto power should block a lawsuit. Where Congress has provided a specific method for challenging a declaration of an emergency, the federal courts would normally hold that that method becomes the exclusive remedy. A lawsuit would be blocked by the fact that Congress provided a non-litigation remedy.)
Second, however, the Congressional veto process described above has been ruled unconstitutional by the U.S. Supreme Court, in INS v. Chadha, 462 U.S. 919 (1983), finding a legislative veto of Executive Branch action unconstitutional. Congress passed many laws which specifically enabled Congress to veto regulations or actions under that law. The U.S. Supreme Court found a legislative veto violates the structure or architecture of the Constitutional system.
Laws go to the President for signature or veto. Congress cannot reach over and pull a law back. Congress must pass a new law and present it to the President for signature if dissatisfied with how the law is working out. The U.S. Supreme Court had no hesitation finding that the Congress had over-reached, based only on the implied architecture of the Constitution.
In Chadha, 50 U.S.C. 1622 was one of the laws explicitly discussed. The dissenting opinion specifically warned that the Chadha decision invalidated Congress’s ability to overturn a presidential declaration of a national emergency.
Therefore, Congress cannot overturn a declaration by President Trump that the open border is a national emergency. Even if the U.S. Senate were to side with the Democrats, Chadha explicitly ruled the Congressional veto (termination) of a presidential declaration to be an unconstitutional distortion of the familiar “Schoolhouse Rock” means by which laws are passed and signed by presidents. Once a law is signed, there is no “claw back” right by Congress.
Third, of course, critics are discussing whether Trump’s actions would be constitutional. Here, however, Congress passed a specific statute, in fact a series of statutes. So there is no question about the President’s power to do what the Congressional statute has explicitly empowered him to do.
Some even point to a rather famous Constitutional landmark case — Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) — in which the U.S. Supreme Court explicitly ruled that President Dwight D. Eisenhower did not have the power to temporarily nationalize the U.S. steel industry to avert a strike for national defense. However, Youngstown was not that simple. Youngstown analyzed the inherent powers of Commander in Chief as modified by Congressional agreement by statute.
The U.S. Supreme Court explicitly analyzed that the President’s powers are at their greatest (zenith) when he acts not only by his inherent powers as President but also by the agreement of a statute passed by Congress. In Youngstown, Eisenhower did not have any statute supporting his action and the Court reasoned that he was actually acting in conflict with relevant statutes.
Here, the Congress has already enacted and President George W. Bush signed into law, the Secure Fence Act of 2006. It is already the law of the land that a border wall shall be built along the United States’ Southern border. Neither Congress nor any private plaintiff can challenge the official determination that a border wall or barrier shallbuilt. That is the law. That is the official determination of both the U.S. Congress and the Commander in Chief.
The Secure Fence Act of 2006 was never implemented (other than a few miles) because Congress did not appropriate the funds to pay for it. There are two steps: Authorization and Appropriation of funds. The decision to build a border wall is final. The only question is applying funds to make it happen.
Building of a border wall under the 2006 Act was also not completed because the Swamp and Deep State sabotaged it. Using classic bureaucratic games, the bureaucracy and open borders legislators followed “designed to fail” steps that ground the construction to a halt.
Note that in spite of the word “fence” in the title, the law does not actually mandate a “fence” in particular. The wording of the Act is not about a “fence” but about any kind of barrier customized to the particular terrain in each location to the extent necessary to “the prevention of all unlawful entries into the United States, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband.” That is “all.” As in “all.”
So the Secure Fence Act of 2006 requires building “whatever it takes” — not a “fence” per se. The Act does require specific enhanced barriers and lights, cameras, and sensors, in some named locations.
Fourth, could liberals run to the courts to block Trump from using the military to build a border wall? No. Only those with “standing” can bring a lawsuit. How is anyone harmed?
The federal courts have been waging Jihad against citizens bringing lawsuits for decades. The federal courts have been raising the bar higher and higher to make it nearly impossible for anyone to challenge the actions of government agencies or public officials. Specifically a complaint that is shared generally by much of the population cannot establish standing.
Contrary to strongly-held popular belief, the U.S. Supreme Court has clearly ruled that taxpayers do not have standing to challenge government spending, revenue, or action merely because they are taxpayers. See, Daimlerchrysler Corp. v. Cuno, 126 S.Ct. 1854, 164 L.Ed.2d 589, 547 U.S. 332 (2006). So the Left cannot block Trump’s plans by suing as taxpayers. (The only exceptions involve use of funds to establish a religion or local government taxpayers.)
To bring a lawsuit, one must show that they are tangibly harmed, personally, not just in disagreement with a policy. If Trump uses some of the $700 billion in the omnibus bill to build a border wall, everyone will be more safe. How is anyone harmed?”
Bruce Ohr: FBI, DOJ Knew Dossier Was Dirty from the Beginning
|| PJ Media
“Virtually everyone at the Federal Bureau of Investigation and Justice Department involved in the FBI’s counterintelligence probe of candidate Donald Trump knew from the beginning that the investigation, dubbed “Crossfire Hurricane,” was based on shaky opposition research compiled by a Trump-hating former British spy and funded by Hillary Clinton’s campaign.
Bruce Ohr, the demoted associate attorney general, testified to Congress last August that he repeatedly warned top officials at the FBI and DOJ about Steele’s bias and Fusion GPS’s conflicts of interest, yet this information was kept hidden from the Foreign Intelligence Surveillance Court.
And to add insult to injury, instead of investigating the officials who actively participated in the dossier hoax, Special Counsel Robert Mueller hired several of them to be on his team to investigate President Trump.
Steele, a former MI6 operative, was hired by Fusion GPS to find dirt on Trump after he clinched the Republican nomination.
The FBI fired him in the Fall of 2016 for lying, but the FBI and Justice Department officials nevertheless wrote in the FISA application that he was a reliable source.
Ohr kept top officials at both the FBI and Department of Justice apprised of his conversations with Steele both before and after the former British spy was fired as an informant.
On July 5, the very day of then-FBI Director James Comey’s press conference on Hillary Clinton’s emails, Steele flew to Rome to meet an old FBI contact, according to reports.
Later that month, he met with Ohr, the Wall Street Journal’s Kimberley Strassel reported, based on leaked transcripts confirmed by congressional sources.
Mr. Ohr testified that he sat down with dossier author Christopher Steele on July 30, 2016, and received salacious information the opposition researcher had compiled on Mr. Trump. Mr. Ohr immediately took that to the FBI’s then-Deputy Director Andy McCabe and lawyer Lisa Page. In August he took it to Peter Strzok, the bureau’s lead investigator. In the same month, Mr. Ohr believes, he briefed senior personnel in the Justice Department’s criminal division: Deputy Assistant Attorney General Bruce Swartz, lawyer Zainab Ahmad and fraud unit head Andrew Weissman. The last two now work for special counsel Robert Mueller.
Former FBI special agent Peter Strzok and FBI lawyer Lisa Page were also hired to work on Mueller’s team after being involved with Crossfire Hurricane, but had to be removed after the DOJ inspector general discovered their extreme anti-Trump bias in text messages.
Ohr testified that he stressed that the information he was sharing came from Trump’s political opponents in the Clinton camp and warned that it was unverified and likely biased.
“When I provided [the Steele information] to the FBI, I tried to be clear that this is source information,” he testified. “I don’t know how reliable it is. You’re going to have to check it out and be aware. These guys were hired by somebody relating to—who’s related to the Clinton campaign, and be aware.”
He also told the team that Steele was “desperate that Donald Trump not get elected” and that his own wife, Nellie Ohr, worked for Fusion GPS, the opposition research firm that compiled the dossier.
“When I first began to plan my short biography of Thomas Jefferson, I found it difficult to research the chapter concerning the so-called Barbary Wars: an event or series of events that had seemingly receded over the lost horizon of American history. Henry Adams, in his discussion of our third president, had some boyhood reminiscences of the widespread hero-worship of naval officer Stephen Decatur, and other fragments and shards showed up in other quarries, but a sound general history of the subject was hard to come by. When I asked a professional military historian—a man with direct access to Defense Department archives—if there was any book that he could recommend, he came back with a slight shrug.
But now the curious reader may choose from a freshet of writing on the subject. Added to my own shelf in the recent past have been The Barbary Wars: American Independence in the Atlantic World, by Frank Lambert (2005); Jefferson’s War: America’s First War on Terror 1801–1805, by Joseph Wheelan (2003); To the Shores of Tripoli: The Birth of the U.S. Navy and Marines, by A. B. C. Whipple (1991, republished 2001); and Victory in Tripoli: How America’s War with the Barbary Pirates Established the U.S. Navy and Shaped a Nation, by Joshua E. London (2005). Most recently, in his new general history, Power, Faith, and Fantasy: America in the Middle East, 1776 to the Present, the Israeli scholar Michael Oren opens with a long chapter on the Barbary conflict. As some of the subtitles—and some of the dates
of publication—make plain,
this new interest is largely occasioned by America’s latest round of confrontation in the Middle East, or the Arab sphere or Muslim world, if you prefer those expressions.
In a way, I am glad that I did not have the initial benefit of all this research. My quest sent me to some less obvious secondary sources, in particular to Linda Colley’s excellent book Captives, which shows the reaction of the English and American publics to a slave trade of which they were victims rather than perpetrators. How many know that perhaps 1.5 million Europeans and Americans were enslaved in Islamic North Africa between 1530 and 1780? We dimly recall that Miguel de Cervantes was briefly in the galleys. But what of the people of the town of Baltimore in Ireland, all carried off by “corsair” raiders in a single night?
Some of this activity was hostage trading and ransom farming rather than the more labor-intensive horror of the Atlantic trade and the Middle Passage, but it exerted a huge effect on the imagination of the time—and probably on no one more than on Thomas Jefferson. Peering at the paragraph denouncing the American slave trade in his original draft of the Declaration of Independence, later excised, I noticed for the first time that it sarcastically condemned “the Christian King of Great Britain” for engaging in “this piratical
warfare, the opprobrium of infidel powers.” The allusion to Barbary practice seemed inescapable.
One immediate effect of the American Revolution, however, was to strengthen the hand of those very same North African potentates: roughly speaking, the Maghrebian provinces of the Ottoman Empire that conform to today’s Algeria, Libya, Morocco, and Tunisia. Deprived of Royal Navy protection, American shipping became even more subject than before to the depredations of those who controlled the Strait of Gibraltar. The infant United States had therefore to decide not just upon a question of national honor but upon whether it would stand or fall by free navigation of the seas.
One of the historians of the Barbary conflict, Frank Lambert, argues that the imperative of free trade drove America much more than did any quarrel with Islam or “tyranny,” let alone “terrorism.” He resists any comparison with today’s tormenting confrontations. “The Barbary Wars were primarily about trade, not theology,” he writes. “Rather than being holy wars, they were an extension of America’s War of Independence.”
Let us not call this view reductionist. Jefferson would perhaps have been just as eager to send a squadron to put down any Christian piracy that was restraining commerce. But one cannot get around what Jefferson heard when he went with John Adams to wait upon Tripoli’s ambassador to London in March 1785. When they inquired by what right the Barbary states preyed upon American shipping, enslaving both crews and passengers, America’s two foremost envoys were informed that “it was written in the Koran, that all Nations who should not have acknowledged their authority were sinners, that it was their right and duty to make war upon whoever they could find and to make Slaves of all they could take as prisoners, and that every Mussulman who should be slain in battle was sure to go to Paradise.” (It is worth noting that the United States played no part in the Crusades, or in the Catholic reconquista of Andalusia.)
Ambassador Abd Al-Rahman did not fail to mention the size of his own commission, if America chose to pay the protection money demanded as an alternative to piracy. So here was an early instance of the “heads I win, tails you lose” dilemma, in which the United States is faced with corrupt regimes, on the one hand, and Islamic militants, on the other—or indeed a collusion between them.
It seems likely that Jefferson decided from that moment on that he would make war upon the Barbary kingdoms as soon as he commanded American forces. His two least favorite institutions—enthroned monarchy and state-sponsored religion—were embodied in one target, and it may even be that his famous ambivalences about slavery were resolved somewhat when he saw it practiced by the Muslims.
However that may be, it is certain that the Barbary question had considerable influence on the debate that ratified
the United States Constitution in the succeeding years. Many a delegate, urging his home state to endorse the new document, argued that only a strong federal union could repel the Algerian threat. In The Federalist No. 24, Alexander Hamilton argued that without a “federal navy . . . of respectable weight . . . the genius of American Merchants and Navigators would be stifled and lost.” In No. 41, James Madison insisted that only union could guard America’s maritime capacity from “the rapacious demands of pirates and barbarians.” John Jay, in his letters, took a “bring-it-on” approach; he believed that “Algerian Corsairs and the Pirates of Tunis and Tripoli” would compel the feeble American states to unite, since “the more we are ill-treated abroad the more we shall unite and consolidate at home.” The eventual Constitution, which provides for an army only at two-year renewable intervals, imposes no such limitation on the navy.
Thus, Lambert may be limiting himself in viewing the Barbary conflict primarily through the lens of free trade. Questions of nation-building, of regime change, of “mission creep,” of congressional versus presidential authority to make war, of negotiation versus confrontation, of “entangling alliances,” and of the “clash of civilizations”—all arose in the first overseas war that the United States ever fought. The “nation-building” that occurred, however, took place not overseas but in the 13 colonies, welded by warfare into something more like a republic.
There were many Americans—John Adams among them—who made the case that it was better policy to pay the tribute. It was cheaper than the loss of trade, for one thing, and a battle against the pirates would be “too rugged for our people to bear.” Putting the matter starkly, Adams said: “We ought not to fight them at all unless we determine to fight them forever.”
The cruelty, exorbitance, and intransigence of the Barbary states, however, would decide things. The level of tribute demanded began to reach 10
percent of the American national budget, with no guarantee that greed would not increase that percentage, while from
the dungeons of Algiers and Tripoli came appalling reports of the mistreatment of captured men and women. Gradually, and to the accompaniment of some of the worst patriotic verse ever written, public opinion began to harden in favor of war. From Jefferson’s perspective, it was a good thing that this mood shift took place during the Adams administration, when he was out of office and temporarily “retired” to Monticello. He could thus criticize federal centralization of power, from a distance, even as he watched the construction of a fleet—and the forging of a permanent Marine Corps—that he could one day use for his own ends.
At one point, Jefferson hoped that John Paul Jones, naval hero of the Revolution, might assume command of a squadron that would strike fear into the Barbary pirates. While ambassador in Paris, Jefferson had secured Jones a commission with Empress Catherine of Russia, who used him in the Black Sea to harry the Ottomans, the ultimate authority over Barbary. But Jones died before realizing his dream of going to the source and attacking Constantinople. The task of ordering war fell to Jefferson.
Michael Oren thinks that he made the decision reluctantly, finally forced into it by the arrogant behavior of Tripoli, which seized two American brigs and set off a chain reaction of fresh demands from other Barbary states. I believe—because of the encounter with the insufferable Abd Al-Rahman and because of his long engagement with Jones—that Jefferson had long sought a pretext for war. His problem was his own party and the clause in the Constitution that gave Congress the power to declare war. With not atypical subtlety, Jefferson took a shortcut through this thicket in 1801 and sent the navy to North Africa on patrol, as it were, with instructions to enforce existing treaties and punish infractions of them. Our third president did not inform Congress of his authorization of this mission until the fleet was too far away to recall.
Once again, Barbary obstinacy tipped the scale. Yusuf Karamanli, the pasha of Tripoli, declared war on the United States in May 1801,
in pursuit of his demand for more revenue. This earned him a heavy bombardment
of Tripoli and the crippling
of one of his most important ships. But the force of
example was plainly not sufficient. In the altered mood that prevailed after the encouraging start
in Tripoli, Congress passed an enabling act in February 1802 that,
in its provision for
a permanent Mediterranean presence and
its language about the “Tripolitan Corsairs,” amounted to a declaration of war. The Barbary regimes continued to underestimate their new enemy, with Morocco declaring war in its turn and the others increasing their blackmail.
A complete disaster—Tripoli’s capture of the new U.S. frigate Philadelphia—became a sort of triumph, thanks to Edward Preble and Stephen Decatur, who mounted a daring raid on Tripoli’s harbor and blew up the captured ship, while inflicting heavy damage on the city’s defenses. Now there were names—Preble and Decatur—for newspapers back home to trumpet as heroes. Nor did their courage draw notice only in America. Admiral Lord Nelson himself called the raid “the most bold and daring act of the age,” and Pope Pius VII declared that the United States “had done more for the cause of Christianity than the most powerful nations of Christendom have done for ages.” (In his nostalgia for Lepanto, perhaps, His Holiness was evidently unaware that the Treaty of Tripoli, which in 1797 had attempted to formalize the dues that America would pay for access to the Mediterranean, stated in its preamble that the United States had no quarrel with the Muslim religion and was in no sense a Christian country. Of course, those secularists like myself who like to cite this treaty must concede that its conciliatory language was part of America’s attempt to come to terms with Barbary demands.)
Watching all this with a jaundiced eye was the American consul in Tunis, William Eaton. For him, behavior modification was not a sufficient policy; regime change was needed. And he had a candidate. On acceding to the throne in Tripoli, Yusuf Karamanli had secured his position by murdering one brother and exiling another. Eaton befriended this exiled brother, Hamid, and argued that he should become the American nominee for Tripoli’s crown. This proposal wasn’t received with enthusiasm in Washington, but Eaton pursued it with commendable zeal. He exhibited the downside that often goes with such quixotic bravery: railing against treasury secretary Albert Gallatin as a “cowardly Jew,” for example, and alluding to President Jefferson with contempt. He ended up a supporter of Aaron Burr’s freebooting secessionist conspiracy.
His actions in 1805, however, belong in the annals of derring-do, almost warranting the frequent comparison made with T. E. Lawrence’s exploits in Arabia. With a small detachment of marines, headed by Lieutenant Presley O’Bannon, and a force of irregulars inevitably described by historians as “motley,” Eaton crossed the desert from Egypt and came at Tripoli—as Lawrence had come at Aqaba—from the land and not from the sea. The attack proved a total surprise. The city of Darna surrendered its far larger garrison, and Karamanli’s forces were heavily engaged, when news came that Jefferson and Karamanli had reached an understanding that could end the war. The terms weren’t too shabby, involving the release of the Philadelphia’s crew and a final settlement of the tribute question. And Jefferson took care to stress that Eaton had played a part in bringing it about.
This graciousness did not prevent Eaton from denouncing the deal as a sellout. The caravan moved on, though, as the other Barbary states gradually followed Tripoli’s lead
and came to terms. Remember, too, that this was the year of the Battle of Trafalgar. Lord Nelson was not the only European to notice that a new power had arrived in Mediterranean waters.
Francis Scott Key composed a patriotic song to mark the occasion. As I learned from Joshua London’s excellent book, the original verses ran (in part):
In conflict resistless each toil they endur’d,
Till their foes shrunk dismay’d from the war’s desolation:
And pale beamed the Crescent, its splendor obscur’d
By the light of the star-bangled flag of our nation.
Where each flaming star gleamed a meteor of war,
And the turban’d head bowed to the terrible glare.
Then mixt with the olive the laurel shall wave
And form a bright wreath for the brow of the brave.
The song was part of the bad-verse epidemic. But brushed up and revised a little for the War of 1812, and set to the same music, it has enjoyed considerable success since. So has the Marine Corps anthem, which begins: “From the halls of Montezuma to the shores of Tripoli.” It’s no exaggeration
to describe the psychological fallout of this first war as formative of the still-inchoate American character.
There is of course another connection between 1805 and 1812. Renewed hostilities with Britain on the high seas and on the American mainland, which did not terminate until the
Battle of New Orleans, might have ended less conclusively had the United States not developed a battle-hardened naval force in the long attrition on the North African coast.
The Barbary states sought to exploit Anglo-American hostilities by resuming their depredations and renewing their
demands for blood money. So in 1815, after a brief interval of recovery from the war with Britain, President Madison asked Congress for permission to dispatch Decatur once again to North Africa, seeking a permanent settling of accounts. This time, the main offender was the dey of Algiers, Omar Pasha, who saw his fleet splintered and his grand harbor filled with heavily armed American ships. Algiers had to pay compensation, release all hostages, and promise not to offend again. President Madison’s words on this occasion could scarcely be bettered: “It is a settled policy of America, that as peace is better than war, war is better than tribute. The United States, while they wish for war with no nation, will buy peace with none.” (The expression “the United States is” did not come into usage until after Gettysburg.)
Oren notes that the stupendous expense of this long series of wars was a partial
vindication of John Adams’s warning. However, there are less quantifiable factors to consider. The most obvious is
commerce. American trade in the Mediterranean increased enormously in the years after the settlement with Algiers, and America’s ability to extend its trade and project its forces into other areas, such as the Caribbean and South America, was greatly enhanced. Then we should attend to what Linda Colley says on the subject of slavery. Campaigns against the seizure of hostages by Muslim powers, and their exploitation as forced labor, fired up many a church congregation in Britain and America and fueled many a press campaign. But even the dullest soul could regard the continued triangular Atlantic slave trade between Africa, England, and the Americas and perceive the double standard at work. Thus, the struggle against Barbary may have helped to force some of the early shoots of abolitionism.
Perhaps above all, though, the Barbary Wars gave Americans an inkling of the fact that they were, and always would be, bound up with global affairs. Providence might have seemed to grant them a haven guarded by two oceans, but if they wanted to be anything more than the Chile of North America—a long littoral ribbon caught between the mountains and the sea—they would have to prepare for a maritime struggle as well as a campaign to redeem the unexplored landmass to their west. The U.S. Navy’s Mediterranean squadron has, in one form
or another, been on patrol
Los Angeles County agrees to purge up to 1.5 million voters from its rolls in settlement
|| Washington Times
“Los Angeles County has agreed to conduct a purge of its voting rolls, in a move that could strip perhaps 1.5 million inactive voters from the lists of those eligible to cast ballots.
The county made the deal in a settlement last week with Judicial Watch, a conservative public interest firm, saying that under a recent Supreme Court ruling, it has a duty to remove names of people who appear to have either died, moved from the county or lost interest in voting.
The county committed to mailing hundreds of thousands of voters already deemed inactive to see whether they are still eligible voters, and to removing names of people who don’t respond to notices and who miss two subsequent federal elections. The county also agreed to try to weed out dead people still on the rolls.
California Secretary of State Alex Padilla, who was also part of the settlement, committed to send notices to all registrars informing them that they, too, must take steps to cancel voters who miss voting in repeated elections and fail to respond to follow-up notices.
Judicial Watch called the settlement, involving both the nation’s biggest state and the biggest county, a significant win for conservatives who have been trying to harness the 1993 National Voter Registration Act, better known as “Motor-Voter,” to try to clean up voter rolls even as Democrats use the law to expand voter access.
“This is a major NVRA victory — probably the biggest in the history,” said Robert Popper, the Judicial Watch lawyer who fought the case.
He said he expects most of the more than 1.5 million names on the county’s inactive voter list will end up being removed.
Mr. Padilla, the secretary of state, disputed Judicial Watch’s claims, saying he didn’t agree to specifically kick anyone off the rolls.
“The settlement is clear and simple, California will continue its work to adhere to modern list maintenance procedures under the NVRA,” he said in a statement. “This settlement will not lead to unnecessary removal of active and eligible voters. Safeguards remain in place to ensure voter list maintenance procedures are followed before canceling any voter registration records.”
Neither the Los Angeles registrar nor the county’s counsel returned messages Monday seeking comment. Neither did the League of Women Voters or Mia Familia, both of which sought unsuccessfully to intervene in the case earlier.
On Tuesday, however, the registrar finally responded, providing a statement saying last year’s Supreme Court ruling undercut his defense.
Registrar Dean C. Logan still said he’s confident voters won’t be wrongly kicked off the rolls because of the settlement.
“We have simply agreed to comply with the NVRA as interpreted by the Supreme Court and nothing in the agreement will jeopardize even one eligible Los Angeles County voter,” he said.
California becomes the third state to reach a settlement. Ohio reached one in 2014 and Kentucky entered into a court-imposed consent decree with Judicial Watch over its voter rolls last year.
Mr. Popper said the motor-voter law was a compromise. It boosted voter participation by requiring states to register voters at public offices such as motor vehicle bureaus, but it also encouraged states to keep their lists clean by removing outdated names in order to tamp down on the chances of fraud.
Democrats have chiefly focused on the expansion of registration, while battling against efforts to clean the rolls.
One example of that, according to Mr. Popper, was a 1998 decision by the Clinton Justice Department instructing California not to remove people identified as being inactive voters because they failed to respond to follow-up communications. Other states have made similar arguments.
But the Supreme Court, in a major 5-4 ruling last year, said states can use non-responses as part of their justification for cleansing rolls — and that people who have been notified and missed two subsequent federal elections must go.
“Not only are states allowed to remove registrants who satisfy these requirements, but federal law makes this removal mandatory,” the majority ruled.
The new agreement reached last week highlighted that part of the ruling, which appeared to undercut Los Angeles’s legal position and leave the county with little choice but to settle.
Judicial Watch said it targeted Los Angeles after finding the county’s total voter population was higher than the number of people the Census Bureau estimates to be citizens of voting age in the county. That’s true for the state overall, which Judicial Watch said has a 101 percent registration rate for its eligible adult population.
Mr. Popper said while much of the national debate about voter fraud is on in-person abuses, the bigger problem is fraudulent double-voting, which can happen if someone is still getting a ballot or registered at their old residence, while also being registered and voting at their new home.
He said Los Angeles’s inactive voter file is a major potential source for mischief.
Contrary to the impression left by several media fact-checkers, “inactive” voters in California are able to cast a legal regular ballot. The difference between them and active voters is that those on the inactive list don’t get regular communications such as sample ballots from elections officials.
Last week’s settlement agreement is just one of the battlegrounds over voting rights to emerge in recent years.
Democrats won control of the House in the midterm elections in part on a campaign arguing that Republicans were suppressing the votes of racial and ethnic minorities and poor people. They have vowed action to expand voter access and curtail voter integrity checks.
H.R.1, Democrats’ first marquee bill, would require states to allow same-day and internet registration. It would also amend motor-voter to overturn last year’s Supreme Court decision, eliminating the ability of states to remove people for failing to vote or respond to follow-up notices.”
Rep. Ted Lieu Says He Will Give Contributions From Ed Buck to Civil Rights Groups Following Deaths of 2 Men at Donor’s WeHo Home
“After the body of a black man was found in longtime Democratic donor Ed Buck’s West Hollywood apartment this week, U.S. Rep. Ted Lieu announced he will donate more than $18,000 in campaign contributions he received from Buck to LGBTQ and African American civil rights organizations.
Buck’s Laurel Avenue apartment has been the scene of the apparent overdose deaths of two black men in the last two years, authorities said.
“I am deeply disturbed by the latest revelations of a second death by overdose at the home of Ed Buck,” Lieu (D-Torrance) said in a statement Tuesday afternoon. “While we await the results of the law enforcement investigation, I am going to donate the contributions I have received from Mr. Buck to my federal campaign.”
Lieu said he will donate $5,000 to Lambda Legal; $5,000 to the NAACP; $3,000 to GLAAD; $3,000 to The Trevor Project; and $2,500 to the Equality California Institute.”
Obamacare thrown out by judge, raising insurance uncertainty | Straits Times
“DALLAS (BLOOMBERG) – Obamacare was struck down by a Texas federal judge in a ruling that casts uncertainty on insurance coverage for millions of US residents.
US District Judge Reed O’Connor in Fort Worth agreed on Friday (Dec 14) with a coalition of Republican states led by Texas that the signature health-care overhaul by President Barack Obama, known formally as the Affordable Care Act, was unconstitutional after Congress last year repealed a key provision – the tax penalty for not complying with the requirement to buy insurance.
The decision came just before the end of a six-week open enrollment period for the programme in 2019 and underscores a divide between Republicans who have long sought to invalidate the law and Democrats who fought to keep it in place.”
California Elections Official Does Not Know if Non-Citizens Have Voted
“California Secretary of State Alex Padilla does not know if any of the 1,500 people who were improperly registered to vote by the Department of Motor Vehicles (DMV) this year voted in the June primary elections, the Associated Press reports.
On Tuesday, multiple news outlets reported that the DMV had erroneously registered 1,500 people, including non-citizens, to vote between April and September. The reports came after the state government insisted for years that its safeguards would prevent that for happening — a significant concern given a 2015 law that allowed illegal aliens to obtain driver’s licenses, and a 2017 law that automatically registered Californians to vote when they obtained driver’s licenses, if otherwise eligible. While the state says that no illegal aliens were registered to vote, at least one legal alien was confirmed as having been registered.
The roughly 1,500 people either told the DMV they were ineligible or didn’t confirm their eligibility but were registered anyway, he said. The group included at least one non-citizen living legally in the state and perhaps many more. It could also include people under 18 or those ineligible to vote because of a criminal conviction, Padilla said. The DMV said none of the people mistakenly registered are people living in the country illegally.
The incorrect registrations occurred between April 23 and Sept. 25 because of a “processing error,” according to the DMV. California held its primary election June 6 [sic].
Early voting for the Nov. 6 election began this week.
California’s motor voter law letting residents automatically register to vote through the DMV took effect in April. Since then, people have newly registered or updated their voter registration more than 3 million times, DMV spokeswoman Jessica Gonzalez said. The new law is aimed at making it easier for people to register and boosting voter turnout.
Padilla added that the DMV may have to suspend the “motor voter” program if problems persist. Last month, Padilla admitted that 23,000 registrations had been filed with significant errors.”