Friday, March 27, 2015

I don't get MAD

Today, I saw a Professor Heldman of Occidental College opine that we are “behaving like Persians don’t understand mutually assured destruction, when clearly they do.”  Here’s why that is so dangerous.

Up until now, the political dialogue has been between those who favor going to war against Iran now, and those who say, “wait a few more days to see if there is a negotiated solution.” It is predictable that some will say, “let’s wait a couple more weeks.” I’ve been in the few-more-days camp, and even if Secretary of State Kerry is in the couple-more-weeks camp, I wouldn’t want that communicated to the other side just yet.

Basically, this puts me out of step with my peacenik friends so let me say straight away: War is hell and it should be avoided if at all possible. Every effort should be put into negotiating a solution to the problem of Iran, and I am more optimistic than my right-wing friends. But if they are correct, then this may be one of those terrible instances when war cannot be avoided. We’ll know soon enough.

It doesn’t help that a man who has been so wrong, so often, on such important questions seems to agree with me. Of course, I am referring to John Bolton, author of an article that appeared in the New York Times and entitled, “To stop Iran’s bomb, bomb Iran.” Though I detest everything about the man, (except his moustache) I am okay with the bottom line, which is No Nukes for Ayatollahs, and the idea that if necessary we can back it up with our own Air Force.

As usual, Josh Bolton, goes way beyond what the evidence will support. He suggests that Arabs would welcome a strike in Iran, and that he thinks that we could bring down the Iranian regime. Well, maybe he should be assigned to cleaning up the candy and flowers that greeted American liberators in Iraq. Thanks to American gullibility regarding Bolton's last prediction of being greeted as liberators, we are now giving air support to a Iraqi counter-insurgency in Tikret to oust Islamic State, in which effort we find ourselves allied with the Iranians.

I don’t know if Arabs would welcome an America strike in Iran or not, but, frankly, I don’t give a damn. If they have a better plan for achieving a “No Nukes for Ayatollahs” solution, I am open to it. I have been listening, and haven’t heard anything, but, as I said, I am willing to wait till the end of the month.

But along comes Professor Heldman, and she says that we don’t have to insist on No Nukes for Ayatollahs, because we can manage the risk of a nuclear Iran. She suggests one means of control is the doctrine of mutually assured destruction, but presumably she is open to other strategies. But I am not. And here are two reasons why.

First, if Iran acquires a nuclear breakout capability, other nations in the area are going to insist on the same. Reliance on mutually assured destruction is complicated and involves a series of very careful calibrations. With two parties, the complexity is great, but each new party raises the complexity exponentially. Ayatollahs-with-nukes is unacceptably bad. A nuclear arms race in the Middle East, with Israel and Iran already having nuclear capabilities, is far worse.

Second, assured destruction sounds bad to me, but I confess I have no way of knowing the degree to which that is a threat for Ayatollahs. I respect religious folk, but I don’t understand the Islamic religion, especially in its eschatological aspects.

Professor Heldman may have other strategies for managing the proliferation risk and the Ayatollahs with a finger on the nuclear button, but the one she came out of the gate with was mutual assured destruction. If the professor has another idea, let’s have it, because that dog won't hunt.

Even someone as consistently wrong as Josh Bolton got that one right. But what bothered me more about Professor Heldman’s suggestion is that it is the camel’s nose in the tent. The camel in this metaphor is the idea that a nuclear Iran can be managed. It is an attractive proposition to peaceniks like me, who believe that war is hell, which should be avoided if at all possible. But that doesn’t make it true.

“… and tell ’em Big Mitch sent ya!”

Wednesday, March 25, 2015

Natural born questions

Every-word of the Constitution is important. Let’s take a look at three that have been in the news today: “natural-born Citizen.” First of all, it is clear that there are two classes of citizens in the vision of the framers, namely “natural born citizen,” and “others.” Clearly, naturalized citizens are in the “other” class and therefore not eligible to be President of the United States. 

Are there citizens who are neither naturalized nor natural born? Such a citizen would not be eligible to be President, according to the express terms of the Constitution.

Of course, there are those who are citizens but not eligible because of age or residency requirements –- thirty-five and 14 years respectively. But are there people other than naturalized citizens who are ineligible for the presidency because of the nature of their citizenship? And might Ted Cruz be one of them?

First, some background: The Constitution says that a qualification for being President is being a “natural born Citizen.” However, the Constitution doesn’t define “natural born Citizen.” The Third Congress enacted The Naturalization Act of 1790, which provided "the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States." Presumably, this is the law that Ted Cruz referred to when he said the matter has been settled law for over two hundred years.

The statute clearly recognized a distinction between non-naturalized, foreign born citizens of the US, and “natural born Citizens.” The 1790 Act provided automatic citizenship to the minor children of persons duly naturalized, and according to the language of the statute, such individuals, providing they are residents, become “citizens of the United States” automatically. In the very next sentence, act grants to the children born to citizens overseas the status of “natural born citizens.” The proximity of the two clauses strongly supports the conclusion that the statute creates two different classes of citizens: (1) Natural born citizens (and those granted that status) and (2) others, including naturalized as well as those who are minors acquiring citizenship automatically as children of naturalized citizens. Those in the first class are eligible to be President: those in the second class are not. And the facts of the case support the conclusion that Ted Cruz is in that former class: the class of automatic citizens who receive the additional status of the “natural born citizens” who are eligible to be President. As Ted himself might say, “Case closed, eh?”

But here’s the funny part. That statute was superseded by the naturalization Act of 1795, which provided, “the children of citizens of the United States, born out of the limits of jurisdiction of the United States, shall be considered as citizens of the United States,” provided that the father of such a child had been a resident of the United States. Did you catch that? The superseding statute removed the words, “natural born” from the description of children born to citizens abroad. These children are "birthright citizens" to be sure. 

Far be it from me to suggest that Ted Cruz is not a birthright citizen. But the statute makes it clear that not all birthright citizens are natural born Citizens, eligible to serve as President. 

Congress is presumed to have intended to make a distinction between the language of the 1790 statute, and the language with which it superseded that law.  And the courts are tasked with giving effect to the Congressional intent. In fact, there are lots of people who say that the courts should stick to the literal letter of statutes and these people were out in force recently when King v Burwell was being argued.

What will they say now? 

I hope that as a minimum, any defense they have to what looks to me like a slam-dunk will at least have the decency to include an apology for the last 6 years of birtherism. But don't count on it.

“… and tell ’em Big Mitch sent ya!”