There Is No Middle Ground With The Islamic State

The scale of the Islamic State’s (IS) brutality against dissenters across swathes of Syria and Iraq give the West yet another opportunity to accept and embrace the civilizational conflict between Islamists and the modern world order. Since at least the 1960s and especially under the Obama Administration, a growing portion of Americans and Westerners generally have believed that humanity’s universal and inherent goodwill make any quarrel reconcilable with adequate discussion. While the fallacy has long been apparent, it has rarely been illustrated with IS’s tremendous alacrity.

IS’s basic motivation is establishing, or re-establishing, the khilafa – the Islamic Caliphate. According to IS’s brand of Islam, allowing the kafir – the unbeliever – to rule in any land that once was ruled by Islam is an offense to Allah. In this interpretation, once land has become part of Islam – dar ul-Islam – it rightly remains so in perpetuity. Thus IS requires all Muslims to wage war to “restore” the Caliphate, which shall include all of dar ul-Islam, which in turn is coextensive with Islam’s farthest expansion. IS proposes to undo at least 500 years of history, as it would claim the Iberian peninsula (Spain and Portugal), Eastern Europe to the gates of Vienna, the Caucuses, North Africa, parts of Italy and Sicily, and all of Central Asia, South Asia, Southeast Asia and the Indian Subcontinent.

For IS, any and all means are permissible for reestablishing the Caliphate. IS perpetrates mass executions, enslavement, kidnapping and forced marriages to eliminate potential enemies. Those who refuse to convert are executed. Mosul has no Christian population for the first time in 2000 years. IS razes Christian and non-conforming Muslims’ shrines, whether as anathema in-and-of-themselves, or to deprive dissenters of rallying points and hope.

In its attacks on other Muslims whom it deems apostates, IS illustrates its own extremism and one of the flaws in Western thought about Islamist terror. IS does not represent all Muslims; neither does al-Qaeda, Hezbollah, Hamas, the Taliban, Boko Haram, etc. These groups often hate one another with equal or greater passion than they hate Christians, Jews or anyone else. IS merely arrogates its interpretation as the unique, true Islam and self-identifies as Sunnis. Yet many Sunnis oppose them and Sunnis are but one sect of Islam. There are probably around 1.2 billion Muslims who would reject IS theology. So it is that Syria, Iraq, Iran, and the Kurdish Peshmerga are all battling IS despite often deep hostility to one another.

Despite the diversity of Muslim sects and beliefs, Western leaders insist on purveying the same superficial assessment that Islam should be treated as a benign monolith. Western leaders’ penchant for saying “Islam is…” reflects little but the speaker’s ignorance. Islam is not a religion of peace, of war, or of anything else in particular, even if various sects’ more illiberal adherents think it ought to be. Islam is a varied religion led by men who espouse wildly different interpretations and views. IS and its followers are motivated by an interpretation of Islam not only permitting, but requiring unrestrained violence in the name of Islam.

The Western world has no modern equivalent of such religious fanaticism. Europe’s religious wars essentially ended with the enlightenment, albeit with latent patches of religious violence and continuing socio-political battles along sectarian lines. Religious affiliation of any kind continues to wane in the West and committing violence for religious goals is virtually unheard of. There is no ability to internalize that anybody might have religious beliefs so strong, so deep and so harsh that it compels unadulterated violence against nonconformists.

The alienness of unadulterated religious belief that condones violence and ubiquitous rote proclamations that “Islam is a religion of peace” lead Western populations and leaders alike to suffer a sort of cognitive dissonance and avoidance rather than confront the implications of the ongoing, 21st Century religious war. Classical Western ideology holds individual rights including freedom of expression and conscious sacrosanct. IS and discordant other Islamist terrorist organizations believe they are obligated by god to destroy anybody and anything derogating from the universal imposition of their own interpretations of Islam. There is no common ground; only one civilizational principle can survive.

“Zionazi” Meme is Vile Propaganda

The “Zionazi” trope and the accusation that Israel is committing genocide akin to the Holocaust are outright lies perpetrated by terrorists and their defenders, which should be rejected and confronted by any responsible media outlet. The falsehoods are plain from even a cursory comparison.

The contrasts between Israel’s actions in Gaza and the Holocaust are too many and too obvious to list exhaustively. Two core distinctions suffice – the scale of the casualties and the intention of the parties.

First, the Holocaust was horror at an incomprehensible scale. The Nazis killed 6,000,000 Jews alone and 11,000,000 people overall in the Holocaust. These Holocaust figures refer only to targeted non-combatants, and the aforementioned figures do not include the tens of millions of military and civilian war casualties from World War II. Depending when you consider the beginning of the Holocaust, roughly 4,000 Holocaust victims died per day.

In the almost 70 years since Arab irregulars invaded pre-state Israel, in 1947, Egypt, Jordan, Lebanon, Syria, Iraq, Saudi Arabia and the Palestinians in aggregate have suffered about 85,000 killed in conflicts with Israel, and Israel has suffered just under 30,000 killed. These figures include both civilian and military casualties, and include all forms of the Israeli/Arab conflict — the War of Independence, the 1956 Sinai war, the Six-Day War, the Yom Kippur War, the 1980s Lebanon war, two intifadas, the 1990s terror war, the Second Lebanon War and two large-scale Gaza battles since Israel withdrew in 2005, as well as terror attacks and counter-operations.

As of this writing, around 190 Palestinians have been killed in the current, eight-day Hamas-Israel war. That’s about twenty-seven people per day – including combatants – compared to 4,000 innocents killed per day in the Holocaust. Every civilian death is terrible, but the Nazi analogy is void and inapplicable.

Second, the distinguishing and lasting horror of the Holocaust was the conscious, concerted effort to rout out and annihilate a population totally unrelated to the war. Certainly many Holocaust victims were killed ad hoc at the front. However, millions of Jews and other “undesirables” were herded into ghettos where they were left to die en masse of disease and hunger. Those who survived the ghettos or were found elsewhere were shipped by railroad cattle cars to concentration camps where they were gassed to death, worked to death, or again died of hunger, disease and exposure. Whether murdered as targets of opportunity collateral to actual battle, or in bulk far in the rear, Holocaust victims were not unintended victims of otherwise legitimate military operations.

In short, the Nazis’ intentional, systematic extermination of undesirables had no military rationale, but the extermination itself was the goal.

The differences are absolute. Hamas and Israel are at war – Hamas has fired around 1,000 rockets from Gaza at Israeli population centers in the last week and Israel has bombed military targets in Gaza. All of the casualties in Gaza have been either military personnel or unintended victims of attacks on military targets. Israel pursuing valid military aims and causing civilian casualties in the process bears no comparison to the Holocaust.

Further, there is zero evidence that Israel intends to harm civilians. Far from targeting civilians, Israel makes every possible effort to prevent civilian casualties. Israeli pilots are authorized to call of strikes in progress if civilians are present, and have done so. Even the U.N. has acknowledged that Israel warns civilians of forthcoming strikes on nearby military targets so that civilians can evacuate the danger zone. Col. Richard Kemp testified to the Israel’s historically unprecedented efforts to avoid civilian casualties in 2012.

In addition, Hamas itself contributes to Palestinian civilian casualties. Hamas maximizes the overlap between military and civilian areas by placing military bases, munitions and rocket launchers in population centers. A recent Hamas video asked Gaza residents not to post photographs of Hamas fighters firing rockets “from the middle of town.” When Israel warns of the civilian population of imminent attacks on military targets, Hamas has civilians mass and form human shields at the targeted infrastructure. Using human shields in this manner is, of course, a war crime, but Hamas hopes to either ward of Israeli strikes or inflate civilian casualties for propaganda purposes.

For Hamas and its supporters and defenders, propaganda is the key. Comparing Israel to the Nazis, and the Israeli war effort to the Holocaust evokes a powerful sense not only of good versus evil, but of the evil being even greater, even viler and crueler, as the former victim becomes the perpetrator.

But it’s a lie. Without even delving into Hamas’s terrorist nature (it is a designated terrorist organization in the U.S., Canada, the European Union, Japan, Jordan and Egypt), the origins of the current conflagration or the history of Israel’s withdrawal from Gaza, it is obvious from objective facts that accusations of genocide are pure falsehood.

John Boehner and John Roberts, Meet John Marshall

Originally posted at American Thinker

If and when House Speaker John Boehner sues the President, John Roberts and his colleagues on the Supreme Court will confront a challenge that has bedeviled the judiciary for more than 200 years. When the executive disregards constitutional limitations on its own power, what can the Court do about it?

When confronted with the issue in Marbury v. Madison in 1803, then-Chief Justice John Marshall enhanced the Court’s power and prestige by declining to issue an order the executive might refuse to obey. Today’s Court will have to decide whether the Obama Administration’s recidivist disregard for constitutional and legislative limits warrants issuing an order the executive might simply ignore.

Marbury arose under political circumstances as volatile and acrimonious as anything we see today. From 1789 to 1801 Federalists controlled the presidency under George Washington and John Adams. From 1797 to 1801 the Federalists held both chambers of Congress.

But at the turn of the 19th century, Federalist dominance failed. In the 1790s, the French Revolution deeply divided American politics, and opposition to Federalists’ latent monopoly on government coalesced when Washington declared the United States neutral in Europe’s general war of the 1790s and Adams undertook an undeclared naval war against the French. The overwhelmingly unpopular Alien and Sedition Acts, allegedly enacted to bolster national security against French infiltrators and supporters, was seen by many as an effort to suppress anti-Federalist sentiment. Then in the election of 1800, the Federalist ticket split in as Alexander Hamilton ran against the incumbent John Adams.

In the resulting “Revolution of 1800,” the Democratic-Republican party swept into power. Due to a constitutional quirk since rectified, the two D-R candidates, Thomas Jefferson and Aaron Burr, deadlocked in the Electoral College, requiring the lame-duck Federalists in the House of Representatives to break the tie. The Federalists generally supported Burr, but Hamilton worked tirelessly against him, contributing to a prolonged deadlock in the House. It took thirty-six ballots, but eventually Delaware Federalist James Bayard switched his vote from Burr to Jefferson, giving Jefferson the election. Burr killed Hamilton in a duel less than four years later.

Before the new president and Congress were sworn in, the Federalists packed the courts. First, the Federalists enacted the Judiciary Act of 1801, creating new District Courts and Circuit Courts, adding judges to the Circuits, reducing the number of Supreme Court justices and empowering the president to appoint federal judges and Justices of the Peace. On March 3, 1801, the day before leaving office, Adams appointed what become known as the “Midnight Judges” to fill the new positions. On March 4, the last day of the Adams presidency and the 6th Congress, the Senate approved the Midnight Judges appointments.

John Marshall was a staunch Federalist and Adams ally. He was Adams’ Secretary of State from June, 1800, until the Federalists left office on March 4, 1801. He was also Chief Justice of the Supreme Court from January 31, 1801, to July 6, 1835, making him both Secretary of State and Chief Justice at the time of the Midnight Judges appointments.

In his role as Secretary of State, Marshall was charged with actually delivering the commissions to the Justices of the Peace approved by the outgoing Federalist Senate. Perhaps serving in two of the most important roles in the country simultaneously was too much, as Secretary Marshall did not deliver all of the commissions and left some number in the desk in the Secretary of State’s office.

Once sworn in, Jefferson set about undoing the Federalists’ court-packing scheme. One of his first steps was ordering Levi Lincoln, the stand-in Secretary of State until James Madison arrived in the District of Columbia, not to deliver the neglected commissions. Then the Judiciary Act of 1802 reversed the Judiciary Act of 1801, so the courts’ governance reverted to the Judiciary Act of 1789. The Judiciary Act of 1802 also cancelled the Supreme Court’s entire term for the second half of 1802.

One of the commissions that Secretary Marshall neglected to deliver and that was subsequently withheld by Jefferson, Lincoln, and, once he arrived on the scene, Madison, was slated for William Marbury. So Marbury sued Madison.

And Marbury sued Madison directly in the United States Supreme Court. Under the Judiciary Act of 1789 — again in force thanks to the D-Rs reversing the Judiciary Act of 1801 — the Supreme Court had original jurisdiction over writs of mandamus. Generally, a writ of mandamus requires or forbids a government entity from doing something or failing to do something. Marbury sought a writ of mandamus requiring delivery of his commission.

Federalist Marbury was asking Federalist Marshall to order D-R Madison to deliver the commission Secretary Marshall himself had failed to deliver; the D-Rs controlled the entire legislative function, had already prorogued an entire Supreme Court term, and by all indications were willing to hamstring the Federalist-controlled courts altogether.

Chief Justice Marshall responded with arguably the most important decision in U.S. judicial history, addressing two critical questions. First, the Court held that a political officer cannot refuse to perform a specific, legally defined obligation, notwithstanding any Presidential order to the contrary. In Marbury, once the commission had been signed, the Secretary of State’s duty was to stamp it and deliver it:

This is not a proceeding which may be varied if the judgment of the Executive shall suggest one more eligible, but is a precise course accurately marked out by law, and is to be strictly pursued. It is the duty of the Secretary of State to conform to the law . . . He acts, in this respect . . . under the authority of law, and not by the instructions of the President.

As a result, Madison was not entitled to withhold Marbury’s commission.

Second, though, the Court held that it did not have the power to order Madison to deliver Marbury’s commission because the Court lacked original jurisdiction over Marbury’s suit. Without too much of a foray into the minutia of constitutional syntax, Chief Justice Marshall held that the Constitution precludes expanding the Court’s original jurisdiction, and therefore the Judiciary Act clause purporting to grant the Court original jurisdiction over complaints seeking a writ of mandamus was void. Since the Supreme Court lacked jurisdiction over Marbury’s suit, the Court could not issue the requested writ.

Chief Justice Marshall is often credited with creating judicial review by voiding an act of Congress in Marbury, but that is not entirely accurate. Judicial review existed in English common law and was discussed favorably at the constitutional conventions. However, Marbury is the first time the Supreme Court negated an act of Congress, thereby giving judicial review firm precedential footing.

Establishing judicial review was a major victory for Chief Justice Marshall and for the Court. That goal explains two peculiarities about Marshall’s decision. First, jurisdiction over a case is usually and properly determined at the beginning of a decision, since jurisdiction is a predicate to deciding the merits of a matter. In Marbury, only the holding that the Court lacked jurisdiction is binding, and the discussion of executive officers’ obligations is non-binding dicta. Chief Justice Marshall likely opined on Madison’s lawlessness first because he wanted to support his fellow Federalists, even though he then rendered his opinion moot.

Second, if Marshall wanted to help his fellow-traveler and redeem his own mistake, why did he cast off his own power to do so by negating the Court’s original jurisdiction? There are many good reasons, actually. The constitutional interpretation in Marbury is objectively and generally accepted as the correct one; Chief Justice Marshall probably did not want long, tedious original jurisdiction matters diluting the Court’s appellate powers; securing judicial review required voiding the Judiciary Act of 1789 and so sacrificing Mr. Marbury’s commission.

In considering a potential Boehner suit, Chief Justice Roberts may be thinking of another reason Chief Justice Marshall disclaimed the Court’s jurisdiction in Marbury. The Court has no independent means of enforcing its orders. It relies on the executive. If Marshall issued a writ of mandamus ordering Madison to deliver Marbury’s commission, Madison might have refused. Marbury could have turned to the executive, but Thomas Jefferson was not predisposed to empower a Federalist at Madison’s expense. Issuing an order that Madison and Jefferson might ignore risked undermining the Court, the Constitution and the republic.

Now recall that Speaker Boehner’s proposed suit would allege precisely that the executive is ignoring another branch’s constitutional powers. A court order would either require or forbid the President’s doing something, whether it be unwinding past encroachments or refraining from future ones. But the Court is no more able to enforce such a decision today than it was two hundred years ago. No, President Obama is abusing the executive’s exclusive ability to change facts on the ground, and the judiciary cannot force him to stop or undo his overreach.

Nevertheless, there are good reasons for the Court to risk today what Chief Justice Marshall refused to risk in 1803. Chief Justice Marshall’s concern for the Court’s well-being is moot in 2014, as Judicial review and the Court’s prestige are well and deeply established. While having an order ignored would highlight the Court’s limitations, it would not undermine the institution as Chief Justice Marshall might have feared. Indeed, if President Obama ignored a Supreme Court order, it would damage him and his party far more than it would damage the judiciary.

In addition, the merits of a potential Boehner suit leave little room for maneuver. Chief Justice Roberts has been pilloried for his 2012 decision in National Federation of Independent Business v. Sebelius, which upheld Obamacare by transmogrifying a fine into a tax. Consistent with precedent and deference to the more democratic branches of government, that decision reflects the Court’s reluctance to interfere with legislation when there is any Constitutional basis upon which to uphold it. But while Sebelius may have required strained reasoning, there is no reasoning upon which Mr. Obama could constitutionally rewrite the explicit deadlines in Obamacare or negate provisions in immigration law. Chief Justice Roberts’ deference in Sebelius even enhances his credibility in a Boehner suit.

Finally, the Court has the power and duty to interpret and uphold the Constitution. The Constitution provides that “[t]he judicial power shall extend to all cases, in law and equity, arising under this Constitution, [and] the laws of the United States.” As Chief Justice Marshall wrote in Marbury, “[i]t is emphatically the province and duty of the Judicial Department to say what the law is.” President Obama re-writes and ignores legislation as he sees fit, derogating from Congress’s Article I powers. If the separation of executive and legislative powers is to have any substance, the Court must assert itself and perform its duty to say what the law is, no matter the practical or political challenges.

Incidentally, Marbury never received his commission. Madison succeeded Jefferson as President, elected in 1808.

Jonathan Levin is an attorney and blogs at