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May 05, 2010

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It's a slam dunk.

Years ago, on Wizbang, I had a very fine conversation with an adversary about the surveillance, and it comes down to 'you've got to trust the executive'. I don't think it will be difficult for history to discern who was more trustworthy, George Bush, or Barack Obama.
================

Clarice

Are you suggesting, TM that:
(1) the horrid NSA "wiretapping" had the guy in their radar as early as 2004?
(2) the guy is dumb as a sack of rocks?(apparently the clock and wires weren't even hooked up to the bomb BTW).


***
Rush notes today that the perp indicated he's angry about Bush BUT ALSO the drone attacks in Pakistan--which means O's at fault for stirring the hornet's nest, too.

HEH

Rob Crawford

the guy is dumb as a sack of rocks?(apparently the clock and wires weren't even hooked up to the bomb BTW).

Does no one remember Mohammed Salameh? He tried to get his deposit back on the van (U-Haul?) used in the 1993 WTC bombing.

He was, apparently, PICKED by the other conspirators as the one to leave behind without a ticket out of the US or money to buy one. He was, in essence, wolf meat.

Vy, indeed, King?

Heh, leave one to tell the story.
=================

sylvia

I don't think it has to be done like that. They can use cell phone tower triangulation to pinpoint where he made the calls from, most likely his home.

So they get an area, and they scour the info they have, like driver licences in that area, with face recognition tech, at those addresses for tenants of Middle Eastern descent, young guys, and then cross check it with guys with a shady history. It shouldn't take long with a computer program.

Then they narrow it down and check around with his photo ID with the neighbors till they find him.

Clarice

OT but very important--David Obey (D, Wis) chair of the very important Appropriations Committee announced he will not run again/ This is 5 star news, a sign of the coming November tsunami.

Extended shore views.

Hoi Polloi, thy will by obeyed.
================

Porchlight

This is 5 star news, a sign of the coming November tsunami.

Fabulous news. Wow!

So which temblor caused the November event?

Hah, Duffy says he's 'blowing up'. That's funny, Clarice.
==========================

Porchlight

Every single commenter on the Politico Obey story is celebrating the news, except one. Went over to Kos which I never do, and they were whistling past the graveyard and saying that there would be lots of viable Dem candidates ready to step in. Yeah, sure thing, suckers.

spudmom

I bet he was investigated in 2004 because he got the money for house from overseas. Any transaction greater then $10,000 is flagged. Maybe a relative put up the money, or was he already in the employ of terrorists?

centralcal

Interesting about the commenters at Politico, Porchlight.

Oh, and per Drudge:

A Bob Woodward book on the Obama administration is coming out in September.

Wonder if he did any "investigative journalism" about the background of our boy wonder. I won't hold my breath - it will probably just be his usual interviews in book form.

dady

CC,

I'm interested in what Bill Casey blinked to Woodward about Obama when Casey was in that irreversible coma.

bunky

Clarice: Holy Shite!!

Buford Gooch says "Dick Durbin Before He Dicks You"

On finding the info so quickly on the bomber, look into Palantir Technologies. They are the ones who outed "Ghostnet". Almost all of the US spy agencies (and many other government programs) use them now.

anduril

I don't think it has to be done like that. They can use cell phone tower triangulation to pinpoint where he made the calls from, most likely his home.

This is true.

anduril

See--these things can be done. Lieberman's not afraid to do what's, well, sorta right:

Sen. Joe Lieberman (I-Conn.)... plans to introduce a bill that would amend a decades-old law aimed at yanking citizenship from U.S. citizens who fight for a foreign military.

“I’m now putting together legislation to amend that to [specify that] any individual American citizen who is found to be involved in a foreign terrorist organization, as defined by the Department of State, would be deprived of their citizenship rights,” Lieberman said Tuesday.

Such a law would potentially cover terror suspect Faisal Shahzad, a Pakistani-born American citizen charged in connection with the attempted car bombing in New York City’s Times Square. He was apprehended Monday night at the city’s John F. Kennedy airport after he boarded a flight to Dubai.

“If you have joined an enemy of the United States in attacking the United States and trying to kill Americans, I think you sacrifice your rights of citizenship,” Lieberman said.

There is one exception to the existing law: Americans are allowed to serve in the Israel Defense Forces without losing their citizenship.

Let's have a show of hands--Who thinks it's unconstitutional for Congress to yank your citizenship for joining a foreign military but make an exception for people joining the IDF? What, you think that? Then you're a knucklehead!

anduril

Sorry, here's the link:

http://www.politico.com/news/stories/0510/36741.html

Rob Crawford

On finding the info so quickly on the bomber, look into Palantir Technologies.

NO!!!!

You NEVER look into the Palantir! You don't know what might be looking back!

What evah Nona wants.

The first thing about looking into Palantir is 'Don't look'.
===================

Clarice

My hubbie was on the Hill today and says there's talk about Obie running for governor..I take it that's the Dem's whistling past the graveyard them today.

Janet

Isn't it odd that we know the grades of Faisal Shahzad but not the grades of Obama?
LUN (from Ann's link yesterday)

anduril

Which would you rather know, Janet? LOL.

And we know what courses he took, too. Whose transcript would be more interesting to the general public?

Clarice

Did Sig Int track Faisal and if so is it legal?
http://pajamasmedia.com/blog/sigint-spy-drone-key-to-capturing-shahzad/>Domestic Drone?

anduril

Yes. Of course. From a legal standpoint it's no different than previous ways of locating a cell phone, such as the one sylvia mentioned.

nathan hale

When you take up arms against the US govt, aren't you effectively renouncing your citizenship, did everybody forget the arguments about Abdullah Muhajir, Hamdi,
et al, Specially this fellow who did his
primary education, partially in Saudi Arabia, which suggests his father was attache there
in the mid 80s

glasater

Andy Levy is tweeting:

Shahzad's Resume

Cecil Turner

Let's have a show of hands--Who thinks it's unconstitutional for Congress to yank your citizenship for joining a foreign military but make an exception for people joining the IDF?

Is that really the law? Let's see (trust but verify), the State Department says:

Although a person's enlistment in the armed forces of a foreign country may not constitute a violation of U.S. law, it could subject him or her to Section 349(a)(3) of the Immigration and Nationality Act [8 U.S.C. 1481(a)(3)] which provides for loss of U.S. nationality if an American voluntarily and with the intention of relinquishing U.S. citizenship enters or serves in foreign armed forces engaged in hostilities against the United States or serves in the armed forces of any foreign country as a commissioned or non-commissioned officer.
Well, that's no help. Unless the IDF is engaged in hostilities against the US, that wouldn't seem to be an issue here. But let's go to the law and check the pertinent factors for losing citizenship:
(3) entering, or serving in, the armed forces of a foreign state if
(A) such armed forces are engaged in hostilities against the United States, or
(B) such persons serve as a commissioned or non-commissioned officer; or
Not seeing it. (Unless the "Israel exception" is so frickin' secret they don't even dare write the name.) Anyone got a cite for this that doesn't refer back to the politico story?

rse

Andy McCarthy can't think of a good reason for releasing Shahzad's complaint apart from the Justice Dept and WH wanting good PR.

And a lot of reasons not to.

LUN

Cecil Turner

When you take up arms against the US govt, aren't you effectively renouncing your citizenship . . .

That's the old school answer. Herbert Hans Haupt was a citizen right up to the moment they threw the switch. Works for me. The real travesty here is the citizen exemption in the MCA.

anduril

Rahm Emanuel's example won't help: he didn't serve as an officer. I think he cleaned latrines with Arabs and designed tutus in his spare time.

Good work, Cecil. I'd be interested to get to the bottom of it. The point is this: the US Congress can do all sorts of things with citizenship (such as yanking it for being an officer or NCO in a foreign military regardless of whether it's engaged in hostilities with the US), and it also has total discretion on who gets to enter this country.

nathan hale

Well they do need to update the questionaire on affiliate groups that bar admission, like
Hezbollah, Hamas, et al. I doubt you will have anyone with the 1933-1945 issue nowadays.

Cecil Turner

Good work, Cecil. I'd be interested to get to the bottom of it.

I take it that's not a defense of your earlier hyperventilation?

The point is this: the US Congress can do all sorts of things with citizenship . . .

If you checked that just a little, you'd see the "repealed" sections where SCOTUS overruled 'em on the citizenship issues (e.g., voting in a foreign election). Besides, if you're admitting the premise is false, drawing a conclusion seems a little iffy, no?

matt

he bought the phone on the 10th and they were monitoring him the same day? That is awful convenient, unless they were watching beforehand and simply scooped it up. NSA isn't that good.....

They don't have a program for indistinguishable people speaking with heavy accents within the United States, or do they?

Clarice

CORRECTION;
CAR BOMBER ON THE RADAR SINCE 1999

CBS:Sources tell CBS News that would-be Times Square bomber Faisal Shahzad appeared on a Department of Homeland Security travel lookout list - Traveler Enforcement Compliance System (TECS) - between 1999 and 2008 because he brought approximately $80,000 cash or cash instruments into the United States. TECS is a major law enforcement computer system that allows its approximately 120,000 users from 20 federal agencies to share information. The database is designed to identify individuals suspected of or involved in violation of federal law. The system has been recently called inefficient by members of Congress.

anduril

I take it that's not a defense of your earlier hyperventilation?

Hats off to you, Cecil--I trusted but you verified. I assumed that Politico was relying on info put out by Lieberman or his office and that that information would be correct--the phrase regarding Israel, in particular, made me think that this was info coming from Lieberman. Whatever the source, it clearly was not correct.

Here is a snippet from Wikipedia on the subject:

In a 1980 case, Vance v. Terrazas, the Supreme Court ruled that intent to give up U.S. citizenship had to be proven by itself and could not simply be inferred from a person's having performed an action designated by Congress as expatriating. The determination of whether a U.S. citizen did indeed give consent to loss of citizenship, however, could be made upon a preponderance of evidence, rather than under the more stringent standard of "clear and convincing evidence". Changes of this nature were made to the citizenship law by Congress in 1986 (Public Law 99-653). However, U.S. State Department policy since 1990 has been to assume in almost all situations that an American who performs a potentially expatriating act did not in fact intend to give up U.S. citizenship, unless the person explicitly indicates such an intention to U.S. officials.

For legal beagles, this is rather interesting. In 1958, Perez v. Brownell, the SCOTUS upheld the exact same law that was overturned in the 1967 Afroyim v. Rusk case. Perez was, I believe, a 7-2 decision. Afroyim was a 5-4 decision. The further clarification noted above came in 1980. So much for precedent. Warren and Douglas appear to have been the moving forces behind overturning what had seemed to be solid precedent.

So, I can't use that by analogy. However, I still maintain that Congress has an essentially free hand in deciding who, if anyone, is allowed into the country. Here's a summary from the indispensable Wikipedia:

Immigration

Access to United States citizenship was restricted by race, beginning with the Naturalization Act of 1790 which refused naturalization to "non-whites." Many in the modern United States forget the institutionalized prejudice against white followers of Roman Catholicism who immigrated from countries such as Ireland, Germany, Italy and France.[116] Other efforts include the 1882 Chinese Exclusion Act and the 1924 National Origins Act.[117][118] The Immigration Act of 1924 was aimed at further restricting the Southern and Eastern Europeans who had begun to enter the country in large numbers beginning in the 1890s. While officially prohibited, U.S. officials continue to differentially apply laws on illegal immigration depending on national origin (essentially declining to enforce immigration laws against citizens of rich countries who overstay their visas) and personal economy (differentially awarding visas to foreign nationals based on bank accounts, properties and so on).

However, I found a site, Things That Are Not In the U.S. Constitution that provides a case citation (1976) on this issue, which I haven't read since I'm getting ready to walk:

Immigration

The Constitution never mentions immigration, so how is it that the rules for immigrants, and quotas from countries, are set by the federal government and not by the state governments? After all, as the 10th Amendment states, are the powers not delegated to the United States held by the states, or the people?

The Supreme Court has ruled that the Congressional power to regulate naturalization, in Article 1, Section 8, includes the power to regulate immigration (see, for example, Hampton v. Mow Sun Wong, 426 U.S. 88 [1976]). It would not make sense to allow Congress to pass laws to determine how an immigrant becomes a naturalized resident if the Congress cannot determine how that immigrant can come into the country in the first place.

There is also an argument that immigration is an implied power of any sovereign nation, and as such, the federal government has the power to regulate immigration because the United States is a sovereign nation. While it is true that the United States is a sovereign nation, and it may be true that all sovereign nations have some powers inherent in that status, it is not necessary to determine if immigration is such a power that does not even require constitutional mention, because the Naturalization Clause handles the power.

So, based on that, I'm sticking to my guns on the main issue--who decides on immigration and whether such decisions can be overturned by the SCOTUS.

BTW, that sequence of citizenship cases should be a warning to all of you who think the Line Item Veto is unconstitutional.

Clarice

I don't think people dispute Congress' power generally to set standards for immigration.
Some have argued that blocking Muslim immigration would violated the establishment of religion clause.
Others, like me, argue that it would not pass Congress, would be impossible to enforce--how to test a man's religion?--and would be a major foreign affairs headache.

Cecil Turner

Others, like me, argue that it would not pass Congress, would be impossible to enforce--how to test a man's religion?--and would be a major foreign affairs headache.

I agree with all that, and think it'd run afoul of the establishment clause.

Regardless, for purposes of this discussion it's clearly a red herring, and considering the source, such an obvious fallacy is most likely intentional trolling.

anduril

...and think it'd run afoul of the establishment clause.

Obviously the SCOTUS, especially when Libs are running it, can do whatever it wants, for the time being--as that series of cases demonstrates. However, I do disagree with that bit about the establishment clause. If there's a rational basis--prevention of terrorism--I think that would be good enough. I think the SCOTUS would show great deference to Congress when national security is at stake. As the Wikipedia article notes, all sorts of discrimination goes on in immigration matters, and no one has ever won a case. I doubt that the SCOTUS would overrule Congress' judgment re national security and in effect say, no, you're really just bigots.

nathan hale

He came into the country in 1999, from the extension campus of SouthEast U, which tracks with the last wave of the 9/11 crew. One wonders is the status of all these figures,
Shahzad, Aulaqi, Abdulmutallaab plays a part
in whether or not they get further scrutiny

Clarice

Yet, another (and different) explanation of how the bomber was traced..this one from the NYT:

WASHINGTON — Investigators discovered the name of the suspect in the failed Times Square bombing because of a telephone number he provided when he returned to the United States from Pakistan in February, a law enforcement official said Wednesday. The phone number he gave three months ago was entered in a Customs and Border Protection agency database and came up Monday when investigators were checking the record of calls made to or from the prepaid cellular telephone used by the purchaser — at that point unidentified — of the vehicle used in the failed bombing, the official said.

nathan hale

Terrazas says nothing of the kind, and it took a statutory modification in the 1986 immigration to grant theauthority you wanted

nathan hale

Tell me how national origin or religious
affiliation fits here


A 5-to-4 majority of the Supreme Court held, first, that it was not enough for the government to prove "the voluntary commission of an act, such as swearing allegiance to a foreign nation, that 'is so inherently inconsistent with the continued retention of American citizenship that Congress may accord to it its natural consequences, i. e., loss of nationality.'"[1] Rather, the court held that its 1967 ruling in Afroyim v. Rusk "emphasized that loss of citizenship requires the individual's 'assent,' . . . in addition to his voluntary commission of the expatriating act"—and that "the trier of fact must in the end conclude that the citizen not only voluntarily committed the expatriating act prescribed in the statute, but also intended to relinquish his citizenship." On this point, the Supreme Court agreed with the 7th Circuit ruling in Terrazas' favor.


Clarice

HEH!

From the NYT:

"LUTON, England — When Mohammed Qurban stood outside the Jamia mosque in the heavily Muslim Bury Park district on Tuesday and spoke anxiously about Britain’s record-high levels of immigration, he was reflecting a powerful undercurrent that could help tip victory in dozens of constituencies in Thursday’s general election to the main opposition groups vying with the governing Labour Party for power, the Conservatives and the Liberal Democrats.
Enlarge This Image

Andrew Testa for The New York Times
A mosque in Bury Park, a predominantly Pakistani neighborhood of Luton. Muslims are a favorite target of opponents of large-scale immigration in Britain.


“I think this country is coming overpopulated, too many people coming in from everywhere, especially Europe,” Mr. Qurban said, as fellow worshipers nodded in assent. In particular, he said, thousands of Poles in Luton were taking jobs from the children and grandchildren of a previous generation of immigrants like himself, those who arrived from Pakistan in one of Britain’s early waves of migration in the 1960s."

nathan hale

This case might bolster Lieberman and McCain's case, in the LUN

Clarice

That's the case I remembered from law school, Narciso.

anduril

Tell me how national origin or religious
affiliation fits here

This is apples and oranges, nate. The cases being cited are about yanking citizenship. I was using Lieberman's idea by analogy because it illustrates the fact that Congress has considerable discretion over citizenship matters. That discretion is no longer as total as it used to be, as Cecil established--the SCOTUS extended the reach of the 14th amendment to matters that, until 1967, were not previously considered to come under the 14th amendment.

My contention has to do with immigration, and no one, not even Clarice, doubts that Congress has basically total discretion: nobody has a right to enter the country and historically Congress has done pretty much whatever it wants, smart or dumb. Not only that, as a practical matter the government discriminates regularly based on what nations it favors or disfavors at any given time.

Terrazas says nothing of the kind, and it took a statutory modification in the 1986 immigration to grant theauthority you wanted

I'll stand by Wikipedias summary. Read the case; the holding is set out at the beginning:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=444&invol=252

I've found that Wikipedia is highly reliable in legal matters.

Clarice

Well, Cecil for one, does think Congress is limited by the establishment clause from constitutionally barring Muslim immigration.

nathan hale

I don't see any statutory authority for that,and let's not go back to Jim Crow times
to search for it, thank you very much.


Now there is grounds for the other procedure,
(Nikishima, Trop, et al)which of course, Sargent, Marshall, et al, don't have a clue about, but that's why they get paid the big bucks,

bunkerbuster

why has someone stolen anduril's ID? seems awfully petty...

JM Hanes

"Hats off to you, Cecil--I trusted but you verified. I assumed that Politico was relying on info put out by Lieberman or his office...."

Alternate theory: the story was just tooo good to check.

anduril

Congress is limited by the establishment clause from constitutionally barring Muslim immigration.

The power over immigration is granted by the Constitution to Congress: "The Congress shall have Power...To establish an uniform Rule of Naturalization," but the Supreme Court has repeatedly recognized that this exclusive grant of jurisdiction to the political branches is inherent in the idea of sovereignty.

I've found a very recent and quite topical case that has a quite direct bearing on this issue. It's the case of the Muslim Uighur detainees at Guantanamo. A District Court judge ordered the government to admit the Uighurs to the US. Here's what followed:

Supreme Court Drops Uighur Detainee Case

Jacob Sullum | March 1, 2010

Today the Supreme Court said it no longer needs to decide a case involving Uighur Muslims held at Guantanamo Bay since 2002. Although the federal government does not claim these detainees are terrorists or any other kind of "enemy combatants," it had refused to release them, saying they would face persecution in their native China and had nowhere else to go. In 2008 a federal judge in Washington ordered the Uighurs' release within the United States, a ruling that was later overturned by the U.S. Court of Appeals for the D.C. Circuit, which said only the executive branch has the authority to admit people into the country. Today the Supreme Court vacated that decision, noting that foreign countries finally have agreed to accept all the remaining Uighur detainees, making the immigration issue moot.

Here's a summary from the SCOTUSblog Uighurs barred from U.S.. It's noteworthy that this was Obama and Holder arguing that no court can order that aliens be admitted to the US--only the executive, subject to laws passed by Congress, can do that.

Although the SCOTUS vacated the Court of Appeals decision as moot, it's worthwhile pasting in here the Court of Appeals summary of law on this issue. The case law is fairly extensive and as you can all see it explicitly supports what I've said:

Our analysis begins with several firmly established
propositions set forth in Saavedra Bruno v. Albright, 197 F.3d 1153, 1158 (D.C. Cir. 1999), from which we borrow. There is first the ancient principle that a nation-state has the inherent right to exclude or admit foreigners and to prescribe applicable terms and conditions for their exclusion or admission.3 This principle, dating from Roman times,4 received recognition during the Constitutional Convention5 and has continued to be an important postulate in the foreign relations of this country and other members of the international community.6

For more than a century, the Supreme Court has recognized the power to exclude aliens as “‘inherent in sovereignty, necessary for maintaining normal international relations and defending the country against foreign encroachments and dangers – a power to be exercised exclusively by the political branches of government’”7 and not “granted away or restrained on behalf of any one.” The Chinese Exclusion Case, 130 U.S. 581, 609 (1889). Ever since the decision in the Chinese Exclusion Case, the Court has, without exception, sustained the exclusive power of the political branches to decide which aliens may, and which aliens may not, enter the United States, and on what terms. See, e.g., Ekiu, 142 U.S. at 659; Fong Yue Ting v. United States, 149 U.S. 698, 713 (1893); Lem Moon Sing v. United States, 158 U.S. 538, 543, 547 (1895); Wong Wing v. United States, 163 U.S. 228, 237 (1896); Fok Yung Yo v. United States, 185 U.S. 296, 302 (1902); Tiaco v. Forbes, 228 U.S. 549, 556–57 (1913); Hines, 312 U.S. at 62–64; United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950); Galvan v. Press, 347 U.S. 522, 530 (1954); Graham v. Richardson, 403 U.S. 365, 377 (1971); Kleindienst, 408 U.S. at 765–66; Mathews v. Diaz, 426 U.S. 67, 81 (1976); Fiallo, 430 U.S. at 792; Reno v. Flores, 507 U.S. 292, 305–06 (1993); Demore v. Kim, 538 U.S. 510, 521–22 (2003).

With respect to the exclusive power of the political branches in this area, there is, as the Supreme Court stated in Galvan, “not merely ‘a page of history,’ . . . but a whole volume. Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government.” 347 U.S. at 531 (quoting N.Y. Trust Co. v. Eisner, 256 U.S. 345, 349 (1921)). Justice Frankfurter summarized the law as it continues to this day: “Ever since national States have come into being, the right of the people to enjoy the hospitality of a State of which they are not citizens has been a matter of political determination by each State” – a matter “wholly outside the concern and competence of the Judiciary.” Harisiades, 342 U.S. at 596 (concurring opinion).

As a result, it “is not within the province of any court,unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien.” Knauff, 338 U.S. at 543.

mefolkes

Clarice mentioned at the start of this thread that the Times Square bomber was incensed about our drone attacks. News stories say that he was a witness to one. But that begs the question of why he was at a damned terrorist training camp far from his home area of Pakistan at the time. He could not have been radicalized by things which took place after he had gone to a terrorist camp for training. Duh. And I'm similarly unimpressed by news stories that report the fellow's failure to achieve the American dream, having lost one home to foreclosure. He owned more than one home. He hasn't been here that long. Lots of Americans don't own one home. I call BS on a whole host of things.

 Clean Colon Pro

Only One word to characterize such a great post “WOW” that was a very interesting read
such a wonderful information for me..i am really impress it.

Cecil Turner

Although the SCOTUS vacated the Court of Appeals decision as moot . . .

Just as this point is always going to be moot, since nobody has the canastas even to propose it. I remember the foofraw over profiling aliens for immigration screening, which is an order of magnitude less intrusive.

It's noteworthy that this was Obama and Holder arguing that no court can order that aliens be admitted to the US--only the executive, subject to laws passed by Congress, can do that.

The question is whether Congress can pass a law excluding only one religious sect/denomination. I think it's self-evident they can't. (YMMV.) And that's expressly provided by law (the Constitution). None of these cases are even close.

Clarice

Are agree that "none of these cases is even close."

Clarice

**I agree*

__________

More evidence that the car bomber is a moron--this from the NY Post:

"The night before leaving an SUV containing a homemade bomb in Times Square, admitted terrorist Faisal Shahzad did a dry run for his fiendish plot and dropped off a getaway car nearby, The Post has learned. But the "idiot" bomber was unable to use that vehicle — a white Isuzu — because he had accidentally left the keys behind in the smoldering 1993 Nissan Pathfinder after parking it on West 45th Street with the bomb, a law-enforcement source said."

anduril

Cecil, hat's off to you again. That's a fascinating article - Law enforcement officials secretly profiling immigrants - and it explicitly supports what I'm maintaining. Again, I'm not surprised that you and Clarice show yourselves to be utterly supine in the face of the leftist disinformation propagated in that article, but a careful reading of it repays the effort. Please continue your research.

Now, as to the article.

You maintain:

The question is whether Congress can pass a law excluding only one religious sect/denomination. I think it's self-evident they can't. (YMMV.) And that's expressly provided by law (the Constitution). None of these cases are even close.

Now look at what the critics were saying about that screening procedure:

Under the proposal, a special interest alien would be an immigrant with terrorist ties or an immigrant who by nationality, "ethnicity or other factors may have ties or sympathies" with the listed countries.

As a result, an immigrant who doesn't have any known terrorist links and who isn't from a country on the list conceivably could be considered a special interest alien, if his or her ethnic background included a listed country.

Stark described the proposed term as "generic enough to address all the functional issues" of federal law-enforcement agencies.

Critics charge that the screening technique not only appears to target Muslims but also is too broad to be effective.

"When you're targeting as 'special' 20 percent of the world, you're obviously sweeping far too broadly and you're going to waste a lot of resources on people who pose no threat," said David Cole, a professor at Georgetown University Law Center in Washington.

"The second problem is that when you treat people from Muslim countries as suspect merely because they come from Muslim countries, you are very likely to alienate the people here and abroad we need to be working with if we're going to get helpful information on what the real threats are."

OK. Obviously, "other factors" means religion, and there's only one religion that they're targeting: Islam. That's what Georgetown law professor David Cole is saying, and he's right. But notice what David Cole does NOT say. He says that this policy will hurt people's feelings and is in his opinion a waste of time--but he does NOT say that it's unconstitutional or otherwise illegal. He doesn't say that because he knows better.

Not surprisingly, David Cole is characterized as "a leading critic of the administration's anti-terrorism initiatives," so you can be sure that if you and Clarice could dream up some BS Constitutional argument, this legal hotshot and his buddies would have done so too--IF they thought it would hold water and wouldn't get them laughed out of serious legal circles. In fact, David Cole explicitly notes further on that this policy is "a proxy for religious and ethnic profiling," but again does NOT say that it's unconstitutional or otherwise illegal. And we find out why when the article quotes a conservative scholar:

Courts have upheld immigration policies that discriminate based on nationality, but generally view law enforcement profiling of U.S. citizens based on ethnicity, race or religion as unconstitutional.

...

Mark Krikorian, the executive director of the Center for Immigration Studies, said agents had the prerogative to single out immigrants based not only on nationality but also on race, religion or ethnicity because of the federal government's broad authority in all immigration matters.

"This is not a constitutional issue," Krikorian said. "This is a question of the best law enforcement and security approach."

1. As the author notes, profiling of US citizens is prohibited, but prospective immigrants are not US citizens, nor are they being held on US territory, such as Guantanamo, so habeas corpus doesn't come into play--as the Clinton appointee on the DC Circuit unsuccessfully tried to argue.

2. Mark Krikorian, a scholar on immigration issues and a regular at the Neocon site NRO, doesn't shy away from the issue. Not only can the US Government discriminate on the basis of nationality, he says, but it can also discriminate on the basis of "race, religion or ethnicity," simply because immigration is totally within the discretion of the "political branches." And, as the DC Circuit noted, it “is not within the province of any court,unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien.”

3. The First Amendment was written for the benefit of US citizens, not for the benefit of prospective immigrants--whom the US Government can exclude for any reason or no reason at all. Indeed, it is difficult to see how any prospective immigrant could have standing to sue under the US Constitution.

Clarice

Tell you what, anduril. You seem to think Cecil and I are nuts for saying Congress won't go along with this. Why not see if you can persuade a single Congressman to sponsor legislation banning Moslems from immigrating here and get back to us?

nathan hale

And Dennis Ross has gone so native, he might as well, be wearing a lei, in the LUN

anduril

You seem to think Cecil and I are nuts for saying Congress won't go along with this.

No, that's not what I said, and you know it. I think you and Cecil are nuts for two reasons:

1. Denying that there is established law on this issue, and

2. Maintaining that screening Muslims out of the immigration queue would be a wrong thing to do. Your invocation of the 1st Amendment clearly indicates that such a position is "un-American."

Neo
“Somebody’s financially sponsoring him, and that’s the link we’re pursuing,” an administration official told The New York Times, noting that Shahzad received money from Dubai to purchase the Nissan Pathfinder used in the failed attack and his one-way airline ticket to Pakistan following the attack. “And that would take you on the logic train back to Pak-Taliban authorizations.”
anduril

Ah, Dubai, thanks for reminding me.

nathan hale

Dubai, maybe we can get Captain Renault, I mean Thanim to look into that

Cho Yung Tea

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Wilson/Plame