Death by Triangulation – why HC should or should not declare her Democratic Candidacy

by Professor Ruth O’Brien & Frederic D. O’Brien (a.k.a. Fred Schwarz, Deputy Managing Editor, National Review)


When a print publication’s most popular foreign-policy headline is “Obama threatened to shoot down Israeli warplanes” and the CPAC straw poll has Rand Paul winning and Scott Walker “surging,” while CPAC attendees would have “walked out on Jeb,” it would have been strategically unwise for the Democratic potential presidential nominee, former New York senator, and former Secretary of State Hillary Clinton to put her toe in the ring. Why would HC endanger not only her candidacy but all the candidacies of the Democrats who want to win in 2016?

If HC sticks her neck out today by declaring her official Democratic candidacy, as Cokie Roberts contends on NPR than HC will be triangulated to death.

HC gives every man in the GOP field (and don’t forget that one woman, former Hewlett Packard President Carly Fiorina) a chance to prove either his foreign-policy creds (which those Governors Jeb, Scott, and Rick sorely lack) or their not-so-wacky Christian, tax fearing Tea Party creds against her.

How do conservatives get away with ¼ truths and absurdities, like the headline above about Israeli warplanes? A few well-placed bald-faced lies about HC’s position on Libya in foreign policy is the triangulation – death by association with something entirely false, such as saying the Obama administration had a military response available to save the diplomats in the consulate in Libya.

Similarly with the Tea Party, fringe conservatives are trying to convince their fellow Republicans that Wisconsin governor Scott Walker could win. Scott’s got all the Tea Party touchstones or creds: He is part of the war on women as well as the entire spectrum of the rainbow refraction coalition. Walker’s against a woman’s right to choose. He’s against same-sex marriage. And not only is he against any form of regulating business, he’s got that impressive public-union-bashing cred. Public unions, like the National Education Association (NEA), represent not just the working and professional class, like teachers, but also women and persons with different identities more than the ever-shrinking, almost-gone unions for the private sector with their Rust Belt history.

So as much as I hate to disagree with Cokie Roberts’ NPR analysis (she is, after all, the author of an interesting book on First Ladies) in this, she’s wrong. Hillary should stay out of the ring until the Republican candidates sort themselves out, at the very least in terms of money. And by money, I mean give me the Koch brothers’ money.* #RuthOBrienGC

*Chances are those brothers are giving all viable candidates money. When you have that much why wouldn’t you. So the better question is who are they enjoying giving their money to the most?


If Hillary has learned the lesson of 2008, she will openly declare her candidacy now. In 2008 she adopted a rope-a-dope strategy, low-keying it for most of 2007 in hopes of landing a knockout blow in the first round of caucuses and primaries. Then along came a charismatic young senator from her native state, and before you could blink, she was so far behind that the race was effectively over by Valentine’s Day. She can’t rely on inevitability again, not with the Democratic base all a-Twitter over Elizabeth Warren.

Hillary’s strengths come under the heading of inside politics: raising funds, building alliances, making deals. Few people are enthusiastic about her; she doesn’t have that once-in-a-generation charisma that we have seen in Obama, Reagan, and Kennedy. The longer she stays out of the race, the more time there is for other candidates to steal her support or create a groundswell in opposition. Her age will also be an issue, and the best way to show she isn’t tired or worn out is to campaign vigorously, instead of reciting her standard speech for $250K a pop before adoring campus audiences or favor-seeking corporations.

Most important, perhaps, starting her campaign early would be the best way to distinguish herself from President Obama, her boss not long ago. Right now she is cautiously waiting to see how popular he is next year before deciding how tightly to embrace him. Again, this leaves the field open for other candidates to run as progressive alternatives to the Obama-Clinton administration.

Waiting until the last minute to declare would make Hillary look exactly like what her detractors say about her: Entitled, above it all, physically fragile, overcautious, a backroom dealmaker who’s not good at mixing it up. She did her best in 2008 after it was effectively over and she transformed into Fightin’ Hillary. This time around, she doesn’t have to wait until it’s too late.  #FredericOBrien

Court Cultural Clash Round 2: American Anti-Terrorism Act

Court Cultural Clash Round 2: American Anti-Terrorism Act


The New York Times called it again — it’s a “huge victory” that will “strengthen Israel’s claim that the supposedly more moderate Palestinian forces were directly linked to terrorism.” The U.S. District Court located in Manhattan found the Palestine Liberation Organization (PLO) and the Palestinian Authority liable for damages in terrorist attacks on American citizens who were in Israel between 2002 and 2004.

We get it . . . in this polarized world in which Rudy (Giuliani) wakes up enough to have the gall to be agnostic or “not know” whether President Barack Obama, the Commander-in-Chief, loves his country, and Gov. Scott Walker of Wisconsin doesn’t know if Obama is “a Christian” or not, we know one thing for sure — it’s complicated, and unintended consequences will abound.

The good/bad in this federal court’s territorially expansive ruling substantiating the Obama administration’s, the Democrats’, and the Republicans’ (i.e. Americans) support of the American Anti-Terrorism Act is that it gives all Americans (and their relatives) standing to sue if they are victims of international terrorism.

How is terrorism defined? First, it involves violent acts or “acts dangerous to human life” that are against American law. Second, terrorism is used to intimidate or coerce Americans or our government, or make the government alter its conduct. And third, these violent acts are generally outside the U.S.

Given how opposed the United States (Republicans and Democrats alike) has been to signing international treaties, many Americans (particularly law professors) suggest that we should tread lightly on transnational regulation, whether it affects the Internet or the environment, and particularly when it affects us as civilians, not just as civilians within the United States, and when the United States has to act to protect its national-security interests or its interests as a sovereign nation-state.

What this means is – if U.S. private citizens sue as victims of international terrorism, floodgates will open. Now I’m all for open gates. I’m participatory democracy that certainly includes using the courts. That said, how many citizens will these open gates accommodate?

In September 2014, a Brooklyn jury found Arab Bank ($46 billion in assets) liable for “knowingly supporting” terrorism by Hamas in the second Palestinian uprising. We don’t know the damages yet, or how much the 300 victims of 24 separate attacks will be paid, but a quick click onto Osen Law gives you a temperature read on what their litigators will be asking for, and it won’t be a small amount.

Is that good if you’re Zionist; bad if you’re PLO? Yes, for now. The real story, however, will be tracking how this nation-state and any American nationals will be using the American courts to sue foreign nations and foreign private enterprises like banks that don’t necessarily explicitly reflect our nation-state’s national security.

This is an equal-power tool for all citizens. It is a tool for everyone. So the big story is about jurisdiction — and jurisdiction is hard to wrap your head around or understand.

It is something I happen to dabbled in having grounded my last book in a spatial understandings of neotribalism internationally and of Obama’s grounding himself in the use of conservative means or methods for progressive purpose (such as the federalism underlying Obamacare and the bounceback he’s facing before the Supreme Court this June). Further, this has been one of my favorite topics to write about — due process and procedures since my dissertation turned into my first book.

In Workers’ Paradox: The Republican Origins of New Deal Labor Policy, I discovered it was Chief Justice William Howard Taft who not only liked being Mr. Jurisdiction (establish the rules and then gain the power) but relished backing the American Judiciary Act of 1925, which involves one more power-grabbing turn by increasing the federal courts’ discretion in deciding what issues to hear.

When it’s courts fighting nations, it’s all about lines, not identities — about standing (to sue), not sitting (being disengaged and discussing it in the U.N.).

An institution or a country gains power if it can 1) entice the sovereign nations who are battling into its own jurisdiction (think sinkable waters) and 2) sink the right ships in these dangerous waters at the right time.

Now, will this come back to bite the United States as a sovereign nation? Absolutely.

Will one of our frenemies as a nation-state establish moral superiority (e.g. universal jurisdiction that those pesky moralistic nation-states like Spain are adopting to gain the moral high ground against the United States)? Probably.

Do we have the moral authority as a nation to skip recognizing UN treaties such as theConvention on the Rights of the Child. I dunno. Do you?

What a power play in terms of clashing cultural courts on a global scale.


EDITOR FRED*: Despite the entirely justified outcome, conservatives have reason to be uneasy about this case, because if the plaintiffs are allowed to seize the PA’s assets, there’s nothing stopping any other country from putting Uncle Sam on trial and seizing his assets (or Israel’s, for that matter). That’s if they bother with the formality of a trial at all.

It has been suggested that this verdict will make people overseas hate America even more than they already do. I’m not sure I can quite picture that:


“Hey, Abdul, let’s go sign up with the PLO. All the cool kids are joining.”

“I don’t know, Mohammed. I’m actually getting kind of ambivalent about the whole terrorism thing. Sometimes I think it just perpetuates the cycle of violence and makes a fair and equitable solution even harder to negotiate.”

“Wait a minute, dude — check out this case from the Southern District of New York. Raises serious jurisdictional issues, wouldn’t you say?”

“What!? Why, that’s a completely unjustified extension of the principle of extraterritoriality. I feel like strapping on a bunch of explosives and blowing up some tourists!”


The bad guys deservedly lost in this case, and of course they merit the most severe punishment possible. Still, the interests of maintaining America’s global position, and its need to follow international norms, must predominate, even when dealing with perps as abhorrent as these. It’s far from clear whether the plaintiffs will actually be able to recover anything, but enforcing a court order against the government of a sovereign nation — or even (as in this case) the quasi-government of a quasi-sovereign quasi-nation — could well be considered tantamount to war, and at the very least would invite reprisals. It would also undercut the United States’ case against submitting to the jurisdiction of the International Criminal Court, or to courts in places like Belgium and Spain that claim “universal jurisdiction” over what they deem to be human-rights violations.

The trial had undeniably positive aspects. It established beyond a reasonable doubt that the PA and PLO are terrorist groups. And since, as the article notes, these organizations have settled two prior terrorism cases on confidential terms, the victims may get some relief after all. To be sure, courts should not be vehicles for making statements, and international relations are normally best conducted through diplomacy. But with something as extreme as terrorism, lawfare does have a role to play, and if the victims of these horrific acts can get a measure of both compensation and vindication, the trial can be considered a success.

*Frederic D. O’Brien’s views are entirely his own.  They  do not reflect The Graduate Center at the City University of New York or The City University of New York

Christie at CPAC after Putting Down Pensions

Posted by Ruth O’Brien Professor Ruth O’Brien & Frederic D. O’Brien (a.k.a. Fred Schwarz, Deputy Managing Editor, National Review)


Being a longtime New Jersey voter, I noticed that Gov. Chris Christie went after the gold standard when it comes to public employees – judges.

If this intimidating governor can take away a judge’s pension, who’s next? Everyone’s vulnerable – from teachers in Wisconsin to social workers taking care of the elderly, who are vulnerable since they do not have grown children in the state to protect them.

Today our Gardener State non-Green Governor Christie insists at the Conservative Political Action Conference (CPAC) that he’s the people choice. Huh? Having lived in that state for 20 years plus, I know that Christie reminds most women of your sibling’s husband or former husband. Is that warring on women? No, he’s just the blowfish (i.e. blowhard) every relative wants to avoid. #RuthOBrienGC


Well, he is kind of a blowhard, but that’s never been a disqualifying factor in politics. I think Governor Christie’s biggest problem in chasing the GOP nomination is that he’s just too New Jersey. HIs act goes over well enough in Avenel and Ridgewood and Manalapan, but will it play in Peoria? Or Paducah or Pasco or Pine Bluff? Women will see their overbearing brother-in-law, and men will see The Situation crossed with Tony Soprano.

Truth be told, I was never quite sure what Christie’s justification for reducing the state’s pension payment was (though New Jersey’s heavily Democratic legislature did approve it). The approach described in the Times, in which Christie negotiates with the unions to work out a deal on pensions, seems much more promising and legally sound.

The culprits in these cases are neither the unions (who are only doing their job) nor today’s politicians (who must try any expedient they can to plug ever-greater budget holes). The culprits are the politicians of decades past, who, like New York’s Gov. George Pataki in the 1990s, made rash promises of future gold to secure union support, knowing that they wouldn’t be in office when the bills came due. Conmen like that deserve every bit of scorn their states’ current residents can muster. #FredericOBrien

Can Jon Be Replaced?


Dunno.  Even though Jon Stewart is leaving the Daily Show because, as he explains it, he is “slightly restless” — this does not resonate in any authentic way with me.

And even if it is true (or should I say also true, and truth is different than authenticity anyway), I’d still have to protest.  This is simply so not Jon.

Besides, your idea of being even slightly restless, Jon, is so much less than what we all need in this era of infinite silencing.  Put differently, I’d say, Jon, this is infinitely definitely not so!  (triple negative with spatial visual metaphor intended)

Put differently, or put bodily, I’d scratch my head and have to say Huh?

Or put mindfully, I’d say I’m visualizing Buddha with her back turned, shrugging.  And hopefully all Buddhas won’t be pushed into any vortex or black holes.

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