When it comes to the legal consequences of Hillary’s conduct, her defenders swing and miss

Hillary's prison face 1My friend Scott continues to be fascinated by the slow-mo train wreck that is Hillary’s political career (not to mention her careening into criminal territory).  He sent me the following thoughts:

Hillary’s defenders are claiming that our national secrets are over classified and thus, irrespective of any finding that she handled and retained classified information, it is unimportant. It is all a tempest in a teapot according to David Brock of Media Matters and Matthew Miller at Politico. Ed Morrissey deals with this new spin at Hot Air:

This glosses over a couple of very important points. First, the proper way to reclassify material is to have the issuing authority review it. That duty does not fall to the Secretary of State or her aides, but to the agencies that produced the data, and their direct chain of command, all the way to the President. Not even Congress can declassify material, at least not directly. Users of this material have a positive responsibility to protect it, are briefed constantly on how to handle it while it remains classified, and face severe consequences for violating those protocols and laws, most definitely including prosecution when it involves willful violations or gross negligence (18 USC 793, especially in (f)(1), the application of which is not limited to classified material).

Second, while much of the e-mails flagged (so far) are classified at Confidential and Secret levels — where overclassification is a chronic issue — two e-mails contained information that the issuing agencies considered Top Secret and compartmented. That data came from the NSA and other signals intelligence operations, including satellite-gathered data. Those kinds of information carry high classifications for very substantial reasons, including the protection of our methods of collecting it.

Finally, all of this starts and ends with the exclusive use of an unsecured and unauthorized communications system located in Hillary Clinton’s house, effectively an unauthorized retention of classified material (a crime under 18 USC 1924). There is no valid reason for a federal official with compliance requirements not just for secure transmission of sensitive materials but also with the Federal Records Act to conduct official business through a home-brew server. It was a deliberate attempt to circumvent both responsibilities, and largely succeeded at the latter until the existence of the server became public. As a result, the State Department made numerous misrepresentations in courts in response to FOIA demands that involved communications from Hillary and her team that were required to be part of the public record.

Classifications are not “elastic” either, not to those who handle the material, and especially not when it comes to signals intelligence. They are required to handle it according to the markings no matter what they personally think of its necessity. If Hillary and her staff had a problem with the classification levels cited, then they should have requested a review of the material — and there is no indication that anyone ever did. Even if they had, Hillary and her team were still were required to comply with the laws and protocols while the material was still classified.

Overclassification may be a problem, but it’s not this problem. This problem is that a high-ranking public official secretly evaded legitimate constitutional oversight from Congress and the courts with this e-mail system, which recklessly endangered US national security for four years to service her own personal motives.

Jefferey Toobin raises a very closely related defense at The New Yorker that is deserving of its own fisk. Toobin is supposedly a legal analyst and a lawyer. One could not tell from his recitation of the facts and the law. If he were to make this argument in Court on Hillary’s behalf, he would be eaten alive for misstating the facts and the law.

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Understanding just how serious Hillary’s server problem really is — BY SCOTT, MY GUEST BLOGGER

Hillary-Jail-copyWill Hillary Clinton survive this e-mail scandal criminally and politically? It is tough for me to see how, given the revelation that she had retained on her private server e-mails containing classified information. This is all dripping out slowly – the worst possible thing for Hillary. Her trustworthiness rating in the polls is already Nixonian and it will only continue to drop as more information – or more stonewalling – comes to light.

And rightfully so. Every single word Hillary has said about her email system has turned out to be likely false, demonstrably false, or ridiculous spin:

She complied with all regulations – false.

She wasn’t subject to a subpoena for documents when she unilaterally disposed of over half of her e-mail as private — false.

She didn’t send or receive classified information – false.

The information in her e-mails wasn’t classified at the time it was sent – false.

She didn’t send the classified information stored on her server, someone else did – meaningless.

The information was not marked classified – meaningless.

I’ve compiled a time line, below, and these facts tell the tale. Regardless of why Hillary set up a private server, there is no question that she used it to hide from lawful subpoenas and FOIA requests. She didn’t turn over a single document until it became clear that Trey Gowdy was being so persistent in forcing the issue that she had to. She had no right, under State Dept. regulations, to unilaterally decide what was and was not a government record, nor could she destroy records knowing that they would be part of an ongoing investigation. We know that some emails she received from Sydney Blumenthal were not provided in the documents she submitted to the State Department in December, 2014 claiming that they were a comprehensive production of all government records on her private server.  Thus it is reasonable to assume that she in fact destroyed government records relevant to a subpoena.

Hillary’s conduct amounts to obstruction of justice (18 USC 1519) and comes with a jail term of up to 20 years. To put this in perspective, the accounting firm of Arthur Anderson was put out of business by the DOJ in 1992 for obstruction of justice when it destroyed records relating to its accounting of ENRON.

I would imagine that, criminally, the Obama DOJ, which is perhaps the most politicized in our nation’s history, would simply ignore Hillary’s obstruction if that is all there was. And given the complexity of the facts, most people would just tune it out. Clinton would do one of her well-practiced shameless squeals of victimized outrage, complain of a vast right wing conspiracy, and her minions would do the rest in the press and the Sunday morning shows. Obama’s DOJ certainly showed no rush to intercede in this matter, just as it already has countenanced obstruction of justice and destruction of government records from the IRS and Lois Lerner without any sort of criminal investigation.

But obstructing justice is far from all. Hillary’s email scandal reached critical mass when the Inspector General for the Intelligence Community found classified information in four of forty documents Hillary Clinton produced from her private server. That is when this private e-mail travesty went from obstruction of justice to a threat to national security. And what we are seeing is the tip of the iceberg.

The government takes little more seriously – among the peons at least – than maintaining the security of our classified information. People are prosecuted all of the time for mishandling classified information (18 USC 1924). By mishandling, that means that the defendant took control of and secured classified information in a place or manner that was not authorized. Notably, both David Petraeus and Sandy Berger were prosecuted for that offense. Hillary Clinton’s private server was not an authorized conduit or receptacle for any classified information. The presence of classified information on her private server would seem a clear violation of the applicable statute.

A far more serious offense comes when you take classified information and destroy it or transfer it to other people not authorized to see it (18 USC 793). That carries a jail sentence of up to ten years per act and the standard of conduct is gross negligence. Under the Obama administration, Bradley Manning was convicted for violating this statute and jailed for 35 years. State Dept. contractor Stephen Kim was given 13 months for discussing arguably non-classified information with Fox News’ James Risen. Former CIA officer Jefferey Sterling was recently sentenced to 42 months in prison while former CIA officer John Kiriakou served 30 months, both for providing classified information to a party not entitled to see it.

The IT company Hillary hired to control her server beginning in 2013, River Platte, has no security clearance. Neither do any of the attorneys Hillary tasked with reviewing all of her e-mails and selecting those that she was willing to produce to the State Dept. on December 5, 2014. Those would appear to be clear violations of the statute at issue.

So what remains to be answered:

  1. How many more of the 30,490 emails contain classified information? We are at four out of forty at this point. At some point, these documents will be evaluated by the IG for the Intelligence Community.
  2. Who precisely has had access to Hillary’s server and e-mails because of her “gross negligence?” What are their security clearances, if any?
  3. Are the 31,000 “personal” documents Hillary claims to have wiped clean from her server backed up on any other medium. This is very unclear. River Platte claims that it transferred all data on Hillary’s server to one or more servers in 2013, then wiped her original server clean. The FBI has taken control of the original server. Where did River Platte transfer the data and where is it today? What about backups and archives?
  4. If Hillary’s emails were sanitized and 31,000 emails wiped clean, who precisely did the document review and what criteria were they instructed to follow? When did they do it?
  5. What are the actual contents of the 31,000 emails Hillary erased?
  6. How much damage has Hillary done to our national security?

None of the answers to the above questions bodes well for Hillary. This is not the typical Clinton scandal. It is not Travelgate, White Water, the Rose Law Firm, Vince Foster, nor Monica Lewinsky and the bimbo eruptions. This isn’t even about Benghazi now. And as the fact pattern below suggests, this is on a trajectory to get far worse for Hillary in the coming months. I don’t think she survives this. What say you?

Background Information & Time Line:

Applicable Laws

  • 18 USC 793Gathering, transmitting or losing defense information. Felony with fines and imprisonment up to ten years.
  • 18 USC 1924Unauthorized removal and retention of classified documents or material. Misdemeanor with fines and imprisonment up to one year.
  • 18 USC 1519Destruction, alteration, or falsification of records in Federal investigations and bankruptcy. Felony with fines and imprisonment up to 20 years.

Clinton Timeline

13 January 2009 – (CW) Hillary registers clintonemail.com.

21 January 2009 – (RT) Hillary sworn in as Secretary of State and immediately begins use of her private e-mail system to conduct all her duties as Secretary. For the first three months Hillary served as Secretary of State, her private email server had virtually no security. It was not encrypted.

29 March 2009 – (Wired) Hillary finally begins to use run-of-the-mill, commercially available security on her system. This decision to use a private e-mail server and commercial security left her highly vulnerable to hacking. We may well never know if or how often her e-mail was hacked by individuals or foreign agencies.

20 Sept. 2012 – (Wash. Ex.) The House sends a document request to Sec. of State Clinton requesting all documents relating to Benghazi, putting Clinton on formal notice for the purpose of federal law governing Obstruction of Justice that the House “contemplated” investigating the Benghazi incident. The State Dept. responded to this request by producing some responsive documents, but did not produce any of Hillary’s e-mails.

1 February 2013 – (NRO / NRO) Hillary resigns as Sec. of State. She does not follow any of the internal State Dept. Procedures for turning over records. Moreover, Hillary never had the authority under State Dept. regulations applicable to all employees, “including political appointees,” to decide unilaterally what was and was not a government record on her e-mail account. Per those regulations, she was supposed to make a list of proposed items she would retain.  A reviewing official would then inspect both the list and the items.  If they passed inspection, the official would then certify that the material removed or retained did not “diminish the official records of the Department” or “violate confidentiality required by national security . . .”

2013 – (WaPo): “After she left government service in early 2013, the Clintons decided to upgrade the system, hiring Platte River as the new manager of a privately managed e-mail network. The old server was removed from the Clinton home by Platte River and stored in a third-party data center, which are set up to provide security from threats of hacking and natural disaster, [Barbara J.] Wells [a lawyer for Platte] said. [¶] Platte River Networks has retained control of the old server since it took over management of the Clintons’ e-mail system. She said that the old server ‘was blank,’ and no longer contained useful data.”

(Daily Caller reported 14 Aug 2015) – “Former Secretary of State Hillary Clinton entrusted her email server to an IT firm [Platte River] that was not cleared to handle classified materials, according to the chief spokesman for the Defense Security Service. The DSS is an arm of the Defense Department and is the only federal agency authorized to approve private sector company access to sensitive or confidential material.”

1 August 2013 – (Wash Ex) The House issues two subpoenas to the State Department, one for documents the House had requested but the State Dept. still had not produced, and a second for documents related to Secretary Clinton’s internal, self-exonerating State Department investigation, known as the Accountability Review Board.

17 April 2014 – (Wash Ex) The State Dept. completes its production of documents allegedly responsive to the House subpoenas. None of the documents include e-mails by Hillary.

8 May 2014 – (Wash Ex) A new House Select Committee is formed under Trey Gowdy to investigate the Benghazi incident. Gowdy attempts to “reset” relations with the State Dept and asks them to comply fully with prior subpoenas.

11 Aug. 2014 – (Wash Ex) The State Dept. produces documents to the House. The production includes approximately ten emails to or from Hillary showing her private email address. This is the first time the House becomes aware that Hillary was conducting her duties as Sec. of State using a private e-mail account. Gowdy’s committee against presses the State Dept. to comply with the subpoenas.

October 2014 – (Wash Ex) The State Dept. formally requests that Hillary provide all government records still in her possession, including e-mails. It does so in response to pressure from the House. In order to make this seem as if it is in the normal course of business, it sends out similar requests to the previous three Secretaries of State.

Late 2014 – (LI) According to documents Hillary’s lawyer filed in federal court, Hillary Clinton directed her lawyer to review the e-mails on her server in order to provide all “federal records” to the State Department. Her lawyer has no security clearance.

18 November 2014 — (Wash Ex) The House sends another request to the State Department asking for emails to and from Clinton relating to the Libya attack. This time, committee staffers include instructions specifically demanding emails that were sent or received on any @clintonemail.com account.

2 December 2014 – (Wash Ex) The House sends a letter to Clinton’s attorney asking for all emails to or from clintonemail.com that relate in any way to Libya. Clinton’s attorney would later respond by directing the House to to the State Dept’s previous production.

Dec. 5, 2014 – (LI) Clinton’s attorney delivers to the State Dept. 30,490 e-mails hard copied onto 55,000 pages, claiming those to be the sum total of all federal records in Hillary’s possession. He retains thumb drives with those e-mails in their electronic form.

2 March 2015 – (NYT) The NYT breaks the story about Clinton’s use of a private e-mail system to conduct her duties as Sec. of State.

4 March 2015 – (Fox) Trey Gowdy issues a subpoena directly to Clinton demanding responsive e-mails on her private server.

7 March 2015 – (Daily Caller) It becomes apparent that the State Dept. intentionally mishandled Numerous Freedom of Information Act (FOIA) Requests going back to 2012, all of which should have elicited emails from Hillary’s private email.  These requestse included one in in 2012 that specifically asked the State Dept. to identify all email accounts Hillary used to conduct her State Dept. duties.

10 March 2015 – (WaPo) Hillary holds a press conference at the UN before mostly foreign journalists to address her e-mails. She makes no mention that her server has been wiped clean, stating only that she will not submit it for inspection. She states that what she did complied with all relevant rules and that it was custom and practice to to so, a claim an  AP Fact Check disputes the next day:

  1. “I opted for convenience to use my personal email account, which was allowed by the State Department, because I thought it would be easier to carry just one device for my work and for my personal emails instead of two.” (See NYDN article showing Hillary bragging about managing three different email/electronic devices in her daily life)
  2. “[T]he vast majority of my work emails went to government employees at their government addresses, which meant they were captured and preserved immediately on the system at the State Department.” (That would not been the case with her assistant, Huma Abedin, nor her Chief of Staff, Cheryl Mills, both of whom likewise maintained email accounts on clintonemail.com. Nor would it be the case as regards correspondence outside of the State Dept., such as to heads of state or Sydney Blumenthal)
  3. “[A]fter I left office, the State Department asked former secretaries of state for our assistance in providing copies of work- related emails from our personal accounts. I responded right away and provided all my emails that could possibly be work-related, which totaled roughly 55,000 printed pages, even though I knew that the State Department already had the vast majority of them.”
  4. “QUESTION: Were you ever — were you ever specifically briefed on the security implications of using — using your own email server and using your personal address to email with the president? CLINTON: I did not email any classified material to anyone on my email. There is no classified material. . . . So I’m certainly well-aware of the classification requirements and did not send classified material.”

19 March 2015 — (Pdf) Congressman Trey Gowdy, in a letter to David Kendell, Hillary’s lawyer, all but accuses Hillary and her team of being dishonest by omission in regards to Hillary’s emails. Moreover, Gowdy notes that the emails that Hillary had already produced show a significant gap in time around the Benghazi disaster. Gowdy asks Hillary’s attorney to agree to give Hillary’s private server to the State Dept.’s IG or a neutral third-party so that all of her emails can be reviewed for compliance with the latest and prior subpoenas.

27 March 2015 – (Politifact) Hillary’s lawyer responded to Trey Gowdy’s letter. This from Polifact: “’During the fall of 2014, Secretary Clinton’s legal representative reviewed her hdr22@clintonemail.com account for the time period from Jan. 21, 2009, through Feb. 1, 2013,’ Kendall wrote. ‘After the review was completed to identify and provide to the Department of State all of the secretary’s work-related and potentially work-related emails, the secretary chose not to keep her non-record personal emails and asked that her account (which was no longer in active use) be set to retain only the most recent 60 days of email. No emails from hdr22@clintonemail.com for the time period Jan. 21, 2009, through Feb. 1, 2013, reside on the server. Thus, there are no hdr22@clintonemail.com e-mails from Secretary Clinton’s tenure as secretary of state on the server for any review, even if such review were appropriate and legally authorized.'” (This statements begs the question of precisely when the server was wiped clean and whether there are any archived back-ups. If this is accurate, then the server was wiped clean sometime between 5 December 2014 and 27 March, 2015. Moreover, as noted at Hot Air, this meant that Hillary wiped clean from her server over 31,000 e-mails from her time as Sec. of State, claiming them to be wholly personal. That is more documents than she produced. She would have had to have been sending an average of over 21 personal emails a day each day while she served as Sec. of State.)

15 June 2015 – (Politico) Responding to a subpoena, the State Dept. produces documents to the Benghazi Select Committee. The production does not include at least 60 e-mails Sydney Blumenthal sent Hillary at her private e-mail address discussing national security and foreign policy matters. It appears that they are among the ones Hillary never turned over and subsequently destroyed.

7 July 2015 – (Youtube) Hillary gives her first, and to date only, national interview. She states that all the questions and accusations about her email are a vast right wing conspiracy. She further claims that the House never subpoenaed her documents and that she had no legal obligation to provide her e-mails to the State Dept., adding that they all would have been captured when she sent the e-mails to .gov addresses.

8 July 2015 – (Hugh Hewitt) Trey Gowdy appears on Hugh Hewitt’s radio show to point out that Hillary’s documents have been under multiple subpoenas since 2013, with the most recent directly addressing her private e-mail account served on her attorney on 4 March 2015.

31 July 2015 – (Powerline) It is revealed in Court for the first time that Hillary’s two closest associates at the State Dept., her “special assistant” Huma Abedin and her Chief of Staff Cheryl Mills, also maintained their work email addresses on clintonemail.com, thus shielding their emails from production just like Hillary’s. Hillary later certifies that only Huma Abedin maintained such an email address.

1 Aug. 2015 – (Politico) Approximately 30 Freedom of Information Act (FOIA) lawsuits seeking documents that would have been kept on the clintonemail.com server are ongoing or have been reopened following revelations about Hillary’s private server. On 1 Aug, Fed. Dist. Ct. Judge Emmet Sullivan asked the State Dept. to have Hillary, Huma Abedin, and Cheryl Mills each certify under oath, subject to penalty of perjury, that they have produced all responsive documents.

11 August 2015 – (Fox) Charles McCullough, Inspector General for the Intelligence Community, informs Congress that, of the 40 random e-mails the State Dept. provided to him for review, four contained classified information from five different intelligence agencies. Two of those e-mails contained information classified Top Secret at the time of its production. Further, the Top Secret information in one of the e-mails consisted in part of “operational and geospatial intelligence from the CIA and the National Geospatial-Intelligence Agency (NGA), which produces satellite images.” He has been denied further access to any of Hillary’s documents. The State Dept. is currently producing tranches of documents that Hillary turned over to the State Dept. on 5 Dec. 2014, some with significant redactions. It is unknown as to whether these redactions hide classified information relating to national security or foreign policy.

11 August 2015 – (Breitbart) Hillary makes a partially non-responsive declaration under oath to Judge Sullivan, stating in part that she does not understand what documents are required in this law suit. Further, she states that Cheryl Mills did not have an email account on clintonemail.com but that Huma Abedin did. Neither Mills nor Abedin submitted a declaration under oath.

11 August 2015 – (Clinton Campaign / and see Ron Fournier’s response at National Journal) Hillary’s campaign issues an op-ed length series of talking points, recycling some of her old defenses along with a few new ones. One, they claim that any classified information on Hillary’s server was not marked as such at the time. That is a red herring as it is meaningless to the statutes at issue. Two, while they admit to an investigation of the classified information on the server, they claim that it is not an investigation of Hillary. As Jonah Goldberg points out at NRO, that is like saying you’re investigating a car in a hit and run accident but not the driver.

12 August 2015 – (WaPo) FBI takes custody of Hillary’s e-mail server from a data center that Platte River Communications maintains in New Jersey. Reports are that the server is “blank.”

12 Aug 2015 – (WND) The State Dept. refuses to turn over any further of the 30,460 emails produced by Clinton to the IG for the Intelligence Community.

13 August 2015 – (Breitbart) In the State Dept.’s latest production of a portion of Hillary’s e-mails, Hillary requested a book on e-mails that included a chapter on how to permanently delete them. (You can’t make this stuff up)

14 August 2015 – (McClatchy) According to an analysis of 6,000+ documents released to date, at least 86 influential private citizens and foreign leaders corresponded with Hillary on her personal email. It is noteworthy that none of those emails would otherwise have been captured by the State Dept. for their records absent voluntary production by Hillary.

14 August 2015 – (McClatchy) The FBI and the House Homeland Security Committee have both begun investigating Platte River Communications, including such interesting as (1) whether they were authorized to handle classified communications (per today’s DC, linked earlier, they are not), (2) who would have been able to access information on the server, and (3) whether and how they backed up Hillary’s server.

14 August 2015 – (Legal Insurrection) The State Dept. files a response to Judge Sullivan’s Order, stating that they do not intend to search Hillary’s private server for responsive documents to a FOIA request, claiming (1) that they are under no legal compulsion to search for documents not under their control and (2) that Hillary’s certified claim that she already produced all government records in her possession obviates the need for them to act.

15 August 2015 – (Fox) At a speech in Iowa, Clinton addressed the e-mail issue: “Hillary Clinton defended her handling of the 2012 Benghazi attacks and her use of a private email server as secretary of state, dismissing the controversies as ‘partisan games’ in a speech in Iowa on Friday. [¶] ‘They’ll try to tell you it’s about Benghazi, but it’s not,’ Clinton said, pointing to Republican-led congressional inquiries that she said had ‘debunked all the conspiracy theories.’ ‘It’s not about emails or servers either. It’s about politics,’ she said. ‘I won’t get down in the mud with them. I won’t play politics with national security,’ Clinton said at the annual Wing Ding, a Democratic fundraiser in northern Iowa that attracted three other presidential candidates.” (This woman is beyond shameless. And if that is the best she can do, Democrats are right to be very worried about her future electability.)

People worry that rather than catching bad guys, the Obama administration will use the info it gathers to create bad guys

One of the things that characterizes the rule of law is that it applies equally to all citizens.  The rich man’s son who vandalizes a shop is prosecuted as vigorously as the poor man’s son who does the same.  That the rich man’s son can afford a good lawyer is the random luck of life.  America can provide equality of opportunity, but nothing, not even socialism, can guarantee equality of outcome.  The important thing for purposes of the rule of law is that the law doesn’t give the rich man’s son a pass.

The rule of law also has to be grounded in common sense and reality.  That’s why Anatole France was being nonsensical when he famously said “In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread.” The reality is that a rich man, unless crazy, does none of those things — but it doesn’t necessarily mean that the law is unfair if societal good demands that we value property or try to keep streets safe for all citizens. The law is what it is. In the case of theft, vagrancy, and begging, it isn’t the law that should change but, perhaps, the availability of opportunities and, as needed, charity.

Common sense has long-dictated, at least since 9/11, that the best way to stop terrorism directed at Americans is to keep a close eye on people, especially men, who practice a strict form of Islam and on disaffected young men who take psychotropic drugs.  These two categories of people have been responsible for almost all, or maybe all, of the mass killings against Americans over the last decade and more.

When it comes to the mentally ill, we keep talking about monitoring them, but we don’t do it.  Lack of political will, lack of political and social organization, civil rights issues, and the fact that it’s more fun to rail against guns than against insane people (poor things) means that this won’t change any time soon.

Even worse, our government has made the “politically correct” decision to refuse to monitor with extra focus those young men who embrace radical Islam (e.g., the Tsarnaevs or Nidal Hassan).  It’s not fair, we’re told.  Profiling will make law-abiding Muslims (and the vast majority of Muslims in America are law-abiding) uncomfortable.  It’s racist and mean to assume that, because someone is Arab-looking, and sweating, and smelling of rose water, and murmuring “Allahu Akbar” under his breath to think that he’s up to a bit of no good — never mind that, when the bomb goes off or the plane falls from the sky, any Muslims in the area will be just as dead as their non-Muslim compatriots.

Heck, we’ve allowed minority groups to prey on each other for decades for fear of causing offense.  The number one target of violent, young, black and Hispanic males is . . . violent, young, black and Hispanic males, followed closely by all the hapless black and Hispanic children, old people, mothers, and fathers who have to share communities with these monsters of violence.  Because it looks bad for white police to go after these monsters, their communities must suffer.  The Gods of Political Correctness delight in human sacrifices, and the younger, more innocent, and more tender the better.

Americans therefore fully understand that our government, for “diversity,” or “multicultural,” or “politically correct” reasons (all of those terms speak to the same end), absolutely refuses to look first at the obvious suspects (young, radical Muslim men) before casting its net wide to sweep in people who are trying to avoid capture by looking less obvious.  It’s not likely that the Minnesota granny has a bomb in her brassiere, but it’s possible.  A good national security system doesn’t assume that anyone is innocent, but it does concentrate its resources where they make they most sense.

So here’s the deal with the NSA spying:  We know with some certainty that, for Leftist political reasons, the NSA is not making an effort to scrutinize the population most likely to go all “Allahu Akbar” on us.  Instead, for politically correct reasons, it’s spying on everyone.  In essence, it’s creating a haystack of information, with extra paddings of politically correct, multiculturalist hay wrapped around any spot where a needle might hide.

If politics means that the system won’t look for the obvious bad guys, what is it looking for then?  Well, I suspect that what’s going to happen is that the system will be used to look for easy targets.  Things that are neither criminal nor suspicious, but that pop up nevertheless, will suddenly be scrutinized because they’re there.  It will be the surveillance equivalent of “If the mountain won’t come to Mohamed, then Mohamed must come to the mountain.”  Since the NSA can’t focus its efforts on finding real criminals, it will engage in some flexible thinking and criminalize whatever activity it sees.  And — voila! — it will therefore justify its bureaucratic existence and purpose.  That the country will lose its identity and the people their freedom is a small price to pay for bureaucratic immortality.

Hollywood may inform Obama’s Washington more than we realize — all theater, no substance

Sometimes one reads something and thinks “That’s it!  That explains what’s been going on.”

I do believe that Elliott Abrams is on to something when he discusses the administration’s approach to Syria, and his point is much larger than the already ugly fact that the president may have misspoken American right into a war.  (Which kind of makes Bush’s gaffes, malapropisms, and linguistic mangles seem a whole lot less significant, right?)

Abrams points out that the New York Times report revealing that Obama’s red line was an ad lib, and a dangerous one at that, also reveals that the White House never actually had a plan.  Here’s what the Times reports:

Mr. Obama’s advisers also raised legal issues. “How can we attack another country unless it’s in self-defense and with no Security Council resolution?” another official said, referring to United Nations authorization. “If he drops sarin on his own people, what’s that got to do with us?”

But they concluded that drawing a firm line might deter Mr. Assad. In addition to secret messages relayed through Russia, Iran and other governments, they decided that the president would publicly address the matter.

After a detour to note how ironic it is that the same President who established an “Atrocities Prevention Board” a few months ago (“‘never again’ is a challenge to nations”) now has people saying “What do we care?”, Abrams gets down to the nitty-gritty of Obama’s approach to foreign policy — it’s all theater:

Second, the issue of bluffing. It is noteworthy in the Times story that the administration officials were dealing with words, with lines, with messages—never it seems with tougher decisions about actions. This is of course a huge mistake, as just about everyone now acknowledges, though how it comes to be made in year five of an administration is more mysterious.

Abrams contrasts this superficiality — figuring out how to sell an attitude, without having an actual attitude — with what went on under Reagan when the Soviet Union wanted to send advanced fighter planes to Nicaragua.  Abrams was the assistant secretary of state for Latin America, so it was up to him to read formally to his Soviet counterpart the administration’s stand:  “there was a unanimous view that we would not permit Russia to put advanced combat jets into Nicaragua and change the power balance that had existed in the region since the Cuban missile crisis. Everyone agreed.”

That’s what played out in the world.  But what Abrams remembers is that this is also what played out behind closed doors:

But what preceded such talking points was the NSC meeting. There, after everyone said yes, let’s deliver that message, James Baker spoke up. As I recall it, Baker said something like this: Look, we are not agreeing here on sending a message. We are agreeing now that if they act, we will act. We’re not going to come back here in a month or three months or six months and say, gee, now what do we do? If you are agreeing on taking this line and sending this message to the Soviets, you are agreeing now, today, that if they put those jets in, we will take them out. That’s what we are agreeing. Today.

Although Abrams says he wasn’t then and isn’t now a Baker fan, he was then and is now a fan of that type of sober, realistic thinking.  Abrams’ conclusion about the administration’s hollow, theatrical approach to the rapidly unfolding disaster in Syria applies with equal force to every single foreign policy situation Obama has faced.  As you read the words below, think not only about Syria, but about Libya, the Arab Spring, the Israeli/Palestinian debacles, etc.:

It seems there was no one at these Obama administration meetings wise or experienced enough to say “Hold on, what do we do when they call the bluff?” My boss back in the Reagan years, Secretary of State Shultz, was, like Baker, an ex-Marine and a serious guy. At these White House meetings on Syria this year and last, was there one serious guy? Seems not, and seems that that problem has not been solved.

Sheldon Adelson: Put aside social conservativism to reclaim America

I promise that this post will be about what Sheldon Adelson had to say in an interview with Alana Goodman of Commentary Magazine.  Before I get there, though, I need to begin with a little story of my own.

Readers of my newsletter know that I had lunch last week with seven other conservative women here in Marin.  We had all found each other more or less by accident, not because any of us in Marin have proudly worn our conservativism in the open (our kids would be ostracized if we did), but because we listened for the little clues in their words that hinted at a conservative orientation.  We then risked exposing ourselves by asking, “Uh, are you by any chance  . . . um, you know, conserva-mumble, mumble, mumble?”

That shyness, of course, was before the last election.  Since the 2012 election, we’ve all made a vow to each other to be more open about our political identity and to challenge liberals who lead with unfounded conclusions that demonize conservatives and their beliefs or that confer saintly virtues on Obama and his cadre.

Interestingly, the eight of us were a microcosm of conservative views, ranging from fiscally conservative but socially liberal conservatives all the way to both fiscally and socially conservatives.  Our common denominator, of course, was fiscal conservativism. Dig deeper, and there were two other common denominators:  an abiding belief in the Constitution’s continued relevance to modern America and a fierce devotion to individual liberty.

Where we differed was (a) gay marriage and (b) abortion.  With regard to abortion, we did have one overarching point of agreement, which was that abortion is not a federal issue and should therefore be returned to the states.  When it came to gay marriage, all of us were willing to recognize gay unions, but we differed about whether the answer is to declare gay marriage the law of the land or, instead, to preserve marriage for religious institutions, while making civil unions across the board (both straight and gay) the law of the land.  As regular readers know, I hew to the second view, which acknowledges human relationships and state goals, without interfering in any way with religious freedom.

I walked away from the lunch realizing as clearly as I ever have that the strong fiber weaving us together is fiscal conservativism and individual liberty.  The frayed strands at the edges are what are commonly called “social issues.”

The Democrats, recognizing that the quickest way to shred a piece of fabric is to tear at the frayed edges, rather than to try to destroy the sturdy center, worked hard during the election to blow the gay-marriage and abortion dog whistles.  As the race in Missouri showed, social conservativism is a political landmine that routinely explodes in the face of struggling Republican candidates.  Todd Akin could have won that race if he hadn’t been asked about abortion.  When thinking about Akin’s repulsive and misinformed answer, which provided a solid Progressive rallying cry, don’t forget Richard Mourdock. His experience proves that, even if Akin had given a principled pro-Life answer, he still would have been pilloried and destroyed.

I’m a big believer that, when it comes to social issues, culture drives politics, rather than politics driving culture.  For the past forty years, social liberals have been planted very firmly in the driver’s seat.  They have infiltrated both media and education, which has given them the chance to shape a generation’s social views.  They have sensitized this generation’s ears so that the dog whistles most people under 55 hear the loudest aren’t “debt” or “fiscal cliff” or “responsibility,” but are, instead, “women haters,” “homophobes” and “racists.”

What this cultural transformation means is that, in the short term, conservatives can win on the fiscal side (and, possibly, on the individual liberties side) because people haven’t been deafened by decades of dog whistles on those subjects.  Until we take back the culture, though, which we do exactly the same way the Left did — namely, a slow march through the culture — we will invariably lose on social issues.  Significantly as the most recent election shows, losing on social issues inevitably means losing on all issues.

Now, finally, have established my premise about the way in which social issues invariably play against conservatives in national elections, I can get to Sheldon Adelson’s interview in Commentary Magazine.  For purposes of this essay, Sheldon Adelson is important for three reasons.  First, he is a conservative who is willing to put his money where his mouth is (unlike Warren Buffet, a true-to-form liberal who wants to put other people’s money where his mouth is).  The second reason Adelson is important is that, after his emergence as a money-player in this election, the Left has worked as hard to demonize him as they did to demonize the Koch Brothers and Mitt Romney.  And the third reason is that Sheldon Adelson agrees with me that conservatives cannot win on social issues:

For someone whose name and face were a regular staple of the election coverage, the public does have many misconceptions about Adelson. His liberal social views rarely received media attention during the campaign season, though he’s certainly never hidden them.

“See that paper on the wall?” he asked, gesturing toward a poster with rows of names on it. “That is a list of some of the scientists that we give a lot of money to conduct collaborative medical research, including stem cell research. What’s wrong if I help stem cell research? I’m all in favor. And if somebody wants to have an abortion, let them have an abortion,” he said.


Adelson has not said whether he will use his influence to try to change the GOP internally. But he does believe social issues cost the Republicans the last election.

“If we took a softer stance on those several issues, social issues, that I referred to, then I think that we would have won the most recent election,” he said. “I think people got the impression that Republicans didn’t care about certain groups of people.”

You should definitely read the whole interview.

Adelson is precisely what my self-admitted conservative friends are:  fiscally conservative, socially fairly liberal, very receptive to legal immigration (because a nation, for health, national security, and economic reasons should control its own borders), and supportive of Israel.  What’s funny, though, is that Adelson is also pretty close in actual outlook to all the upscale, white collar liberals I know who reflexively vote Democrat because of the conservative issues.  These people are also fiscally conservative in their own lives; they what their country safe and fiscally sound for their children; they like immigrants but recognize that illegal immigrants pose risks both for American citizens and legal, Green Card immigrants; and they like Israel’s values.

The problem at the ballot box is that, after forty years of Leftist indoctrination, these educated liberals are unable to harmonize their values with their politics.  Despite recognizing the wisdom of fiscal management in their own homes, they think a state can survive indefinitely by spending more than it takes in; despite training their children in self-reliance, they believe that we should destroy self-reliance in “the poor”; despite believing that people should be able to protect themselves and their homes, they are embarrassed when their country tries to defend itself; and despite admiring a pluralist, democratic society, which is what Israel is, they bemoan the plight of the poor Palestinians who have allowed their (now sovereign) territory to devolve in a crazy mix of anarchism and Islamic fundamentalism.

What makes this cognitive dissonance possible for white collar liberals is their unswerving allegiance to unlimited abortions and (of late) to gay marriage. Just as fiscal conservativism, the Constitution, and individual freedom bind conservatives of all stripes together, so too do abortion and gay marriage (with a soupçon of illegal immigration) bind together Progressives of all stripes.  We cannot entice Progressives to fiscal conservativism if we insist on a purity test for abortion and gay marriage.  It’s just not going to happen.  And here’s the kicker:  abortion and gay marriage become moot issues if our nation collapses entirely under the weight of debt or if our walls our breached by Islamists or if we become “tuberculosis central” because we cannot assert even a modicum of polite control over our borders.

As a parent, I hew socially conservative, so those are values I want to advance.  But I’m a pragmatist who recognizes that the ballot box isn’t the place to make it happen.  The ballot box is how we manage issues of sovereignty (including national security and border control) and fiscal health.  Our social institutions are where we make headway on social issues.  If we can keep those lines from crossing, we can be a resurgent conservative political party and, eventually, a somewhat more traditional America, one that preserves the best and healthiest social policies of the past and the present.


“Loose lips might sink ships” — and blabby administrations definitely kill American servicemen

One of the most memorable advertising campaigns from WWII was the all-out effort to make sure that people didn’t inadvertently reveal military secrets that they’d gleaned from their work or from contacts with loved ones.  The most famous is probably this one, because it’s got that memorable rhyme:

The “loose lips” poster wasn’t the only one.  England and America were covered with posters reminding people that national security — and their loved ones’ lives — were at stake, and that a careless word could cause unthinkable damage:

What’s quite obvious when one looks back at WWII is that no one ever contemplated that this deadly loose talk might emanate, not from a thoughtless, gossipy homemaker but, instead, from a boastful White House.  How could those men and women have imagined a time when our President and his administration would be so anxious to borrow military honor that they would treat military secrets with complete disregard for the safety of the men under their command?  It’s hard to find a better example of the base selfishness that characterizes an administration that enthusiastically, and with massive government coercion, assures us that we have an obligation to be selfless for the greater good.

The predictable Democrat ad hominem attack against those special forces who fear the administration’s loose lips

Yesterday, I urged you to view a 22 minute video that a 501(c) organization put together to show how severely the publicity-hungry Obama administration has damaged America’s national security and the risks to which that same administration has exposed its special ops forces and human intelligence assets, both at home and abroad.

The Democrats have reacted in predictable fashion, not by addressing the challenge leveled against the administration, but by using a “guilt by association” tactic.  As Bruce Kesler discusses, they’ve latched onto a quotation from one retired SEAL who admits to being a Birther and claimed that he discredits every accusation brought against the administration.

In law, we call this an ad hominem, or personal attack.  In law, we also understand that a party uses ad hominem attacks only when it has no other credible argument to make.  If you can’t defend on either the law or the facts, call your opponent names.

Certainly, one can challenge Birtherism, but the fact that a highly qualified, experienced military veteran also happens to be a Birther doesn’t discredit him on the subject of national security.  Getting back to the law again, the law has always recognized the difference between “insanity,” which is a complete disconnect from reality, and a “monomania,” which may simply be an intellectual blind spot in the knowledge and intelligence of an otherwise highly able individual.

In any event, you just know the Democrats have a weak argument when the best person they can find to drag out in front of the cameras is . . . John Kerry.

Can you keep a secret? If you’re the Obama administration, the answer is no

People in the intelligence community — as well as intelligent people — have long been upset that, in the current iteration of the war against terrorists and terrorist  nations, it is our own White House that is afflicted with the loose lips that can sink ships. A group of intelligence community specialists and SEALS has put together a polished, professional video decrying the administration’s decision to politicize national security. At 22 minutes, it covers a lot of ground without getting boring.

Why Obama’s secret past — assuming there is one — matters

In response to my post pointing out that being a closet gay is as good an explanation as any for the many holes in Obama’s past, Spartacus made an important point about putting unvetted people into the White House.  It’s so good, in fact, that I’m elevating it to post status:

“We understand that the United States has developed a defense against our anti-ship missiles, but we have no details at this time.  A certain Mr. Jones from your Department of Energy will be requesting an upgrade to his security clearance to access the files — please see to it that this is granted.”

There are many, many federal jobs for which one may have a sexual orientation other than the one advertised, and it is irrelevant; CINC ain’t one of ‘em.  Ferreting out the pressure points and weaknesses of key individuals is Foreign Intelligence Collection 101.  Who paid for Harvard Law School?  What’s the story with that trip to Pakistan?  And yes, for whom has he unzipped?  I don’t pretend to know the answers to these questions, but they are basic questions that all competent foreign intelligence services became intensely interested in as soon as Barack became a senator.

I don’t know how many of his abominable decisions are due to explicit or implicit blackmail, but I’d be very surprised if the answer were zero.  I mean, if this clown walked into an Air Force recruiting office and tried to sign up as an E-4 intel analyst whose job was to look at satellite photos of garbage dumps in the Syrian desert, the security folks would look at his (mostly blank) background and laugh themselves silly while thumping a great big “REJECTED” stamp on the application.  He’s a security nightmare.  But the voters, with no questions asked, bypassed all of that and handed him the keys to the kingdom anyway.

For the sake of gossip, I don’t much care which way his compass points, or who has paid his way, or any of that.  But for the sake of understanding the character and verifying the integrity of our single most important employee, who holds the fate of the world in his hands, it matters, and we are right to ask a few questions.

Is the administration being penny wise and pound foolish?

My earlier post was about the fact that the US spends and spends and spends, and saves very little.  We definitely need to stop spending, but we need to be smart when we do it.  Because our current administration tilts Left, it is reluctant to slow the hemorrhage but, to the extent it will cut programs, it wants to cut our defense spending.  Bruce Kesler suggests, quite rightly too, that this approach fits neatly into the penny wise and pound foolish category.

Dear Government, Please keep your cotton-pickin’ fingers out of my business *UPDATED*

When I was a little girl, one of the refrains in my life was “get your cotton-pickin’ fingers out of that.”  I didn’t mean to be destructive.  I was always certain I could make things better.  I had bald Barbies, because I was pretty sure I could make their hair look better.  I had misshapen stuffed animals, because I thought I could fix stuffing defects.  My generous destructive tendencies didn’t stop with my own stuff.  Cameras lost lenses, appliance knobs got jammed, and the food my mom was cooking got ruined.  I thought I was “fixing” things.  My parents knew that my cotton-pickin’ fingers were wrecking havoc.

I was a little girl, and had an excuse for my ill-fated attempts to improve things.  What’s the excuse our government has for continually interfering with things in which it has no business?  And even worse, what’s the excuse of citizens who keep demanding more interference from the government?  I don’t want Washington to “fix” the economy.  I want it to back off.  Let people who know something about business, about supply and demand, about capital, about finances, about consumers, and generally about the facts on the ground, be the ones who fix business.  All that government offers, whether Democrat or Republican, is stupid good will and cotton-pickin’ fingers.

After I expounded on this theory to my sister, she asked, “What should government do?”  I started the usual list:  National Security, Epidemic and Pandemic Control (as opposed to telling people what to eat or how much to weigh), Transcontinental Road and Bridge Building and Maintenance (not “intercontinental,” but “transcontinental”) — basically, things in which it has an interest.

Take national security, for example.  Government definitely has an interest in national security.  That’s one of its biggest jobs and, more importantly, it’s not a job that can be handled competently by states or individual citizens.  Because the government is very goal oriented when it comes to national security, it tends to do it efficiently.  Sure, there’s waste and graft and corruption, but on the whole, as long as the political will is there, our national security system does its core job very well, whether its our men and women in on foreign battle fields, or our information gatherers here at home.

People confuse the main national security goal with the often beneficial by-products it produces.  A classic example is to support a demand that the government fund science by pointing to the huge surgical strides Americans have made during every war since WWI, or to the far-reaching scientific and technological innovations flowing from NASA.  But what they forget was that, in each case, the government had a bigger goal than better sutures or a computer chip.  The government was not trying to improve surgery but was, instead, trying to keep its troops alive so that they could fight and win.  And up until Obama turned NASA into a Muslim outreach organization, it’s purpose was to help us beat the Soviets in the Cold War. That its technology benefited the private sector was great, but that wasn’t the government’s job.

Problems always arise when government tries to micromanage things in which it has no interest.  Government is neither a consumer nor a business, so when it meddles in the marketplace, it does so without any coherent goals, strategies or tactics.  It’s inefficient because it can be inefficient:  as long as things are sort of moving in one direction or another, there is no specific outcome the government is heading towards.

The same holds true for science:  Nowadays, the government tries to pick scientific winners or losers, depending on the political flavor (and trendy Hollywood star) of the day.  As ethanol, biofuels and Solyndra show, the government has an uncanny knack for backing the wrong horse.  Because government spends our money using a mystical and poisonous combination of politics, bureaucracy and corruption, its decisions are unrelated to practical realities.  It’s the marketplace that should be investigating the best way to reduce pollution, whether that means increasing fossil fuel outputs and cleaning emissions, or finding entirely new energy strategies.  Because government as an entity has no responsibility for science qua science, it shouldn’t pretend — at great taxpayer expense — that it does.

And that, my children, is your sermon for the day.

UPDATEBiden’s Solyndra speech pretty much makes my point.  This Jim deMint article does too.


I have been, I suppose, almost remarkably silent about the whole wikileaks fiasco.  The data drop is of such enormous proportions, it’s actually difficult for me to process all the implications.  I have, however, got a laundry list in mind of some conclusions to be drawn and some of the things it means, which I’ll just drop here in no particular order.

1.  This is truly Pandora’s box.  Once opened, it cannot be closed again.  This does not mean, however, that the U.S. government should do what it is doing regarding Assange — namely, nothing.  If he is allowed to get away with this, the U.S. will have given carte blanche to other, similarly situated anti-U.S. anarchists.  The purpose of punishment, after all, isn’t simply to make the wrong-doer suffer; it’s also to serve as a grim deterrent for others contemplating the same type of action.  Dragging Assange back to Sweden to face pseudo-rape charges (pseudo because of Sweden’s bizarre rape laws) scarcely suits anyone’s notion of the punishment fitting the crime.

2.  To switch metaphors, I’ll abandon Pandora, and move to Rorschach.  If nothing else, the way different people have latched onto the documents is a fascinating insight into their political, social and economic desires.  To conservatives, the documents vindicate long-held beliefs about Iran; about the fear it inspires in the Arab world; about the Obama administration’s ineptitude; about Hillary’s bungling and deviousness; about Israel’s intelligent navigation of impossibly difficult situations; etc.  To liberals, it proves that the U.S. is evil and addicted to oil.  (That last is from Tom Friedman, who’s been repeating the same trope for more than a decade, even as he cheers on cutting off any avenues to oil independence, such as domestic drilling or nuclear power.)  To the Arab world, it is, of course, all the Joooos’ fault, as is everything.  Gosh, if only the Jews had more fun and got better press from their omnipotence.

3.  The leaks are undoubtedly evil.  People who have helped America are now at risk.  People who might have helped America (thereby saving American and allied lives) will refuse to do so.  America’s vulnerabilities around the world now have big targets drawn on them.  We can assume that the next round of leaks will be even more damaging.  Assange has been consistently upping the ante, and rumor has it that the next leaks will involve Gitmo and other topics near and dear to America-haters’ hearts.

4.  All of the above means that this is a game-changer.  Much as it is tempting to assume that governments and people around the world, out of long-term self-defense, will adopt an ostrich strategy and try to pretend none of this happened (much as one would ignore a loud burp at a fancy dinner party), the implications are too extreme.  Assange has proven that there is no information that can truly be protected (and that’s a comforting thought in an ObamaCare age, isn’t it?).  The “bodyguard of lies” that surrounds our nation’s — indeed, all nations’ — national security has been massacred.  It no longer exists.  We now live in a binary world that sees either no secrets or only secrets, both of which are equally dangerous to freedom and security.