NAPOLITANO: Throwing Clapper under the bus

OPINION:

When President Obama attributed the rise in Iraq of the Islamic State, or ISIS, to the failures of the U.S. intelligence community earlier this week, naming and blaming directly National Intelligence Director James R. Clapper, he was attempting to deflect criticism of his own incompetence. He was discussing the fact that the Islamic State, right under his own and the director’s noses, gained control of nearly half of the land mass of Iraq. This is the same Iraq that the United States supposedly liberated from the clutches of a dictator, strengthened as a regional military power and fortified as the Middle East’s newest democracy as a result of our invasion in 2003 and our subsequent 10-year occupation.

Many who supported the war then realize now that we were duped into it by a deceptive and shortsighted Bush administration that was looking to deflect blame for its intelligence failures of Sept. 11, 2001, for which, unlike the Japanese invasion of Pearl Harbor, not a single human being in the federal government has been charged with anything. That, however, is a topic for another day.

The Islamic State captured Fallujah and Ramadi, two major cities in Iraq, eight months ago. Surely, the president knew about that when it happened. He receives an intelligence briefing every day; more often than not, he prefers a written briefing rather than one where he and his briefers can zero in on problem areas in a face-to-face conversation. Yet since the February takeover of the Iraqi equivalent of Chicago and Los Angeles, the president has told the American people that the Islamic State is junior varsity and that he had no plans to address it. He seemed not to care about it until the Islamic State went over his head, so to speak, and beheaded two innocent young Americans and posted grisly videos of their horrific murders on the Internet.

If the president now thinks we should fight the Islamic State because it killed two Americans and boasted about it, he woefully misunderstands his job, which is to preserve, protect and defend the Constitution, not every American everywhere on the planet. If he is convinced that the Islamic State poses an imminent threat to the freedom of Americans and the security of our country, it is hard to believe that these two killings alone brought him to that conclusion. Does he genuinely believe that 25,000 ill-equipped fanatics 10,000 miles from here, with no navy or air force, could possibly be a clear and present danger to the United States? If he does, when and how did he come to that belief if his intelligence team failed him?

These questions are of profound relevance to the American people, because with each passing day, it appears that the president is more indifferent to the facts around him and less competent at pulling the levers of government. Yet he is sending American troops into harm’s way on an ill-defined, long-term mission without congressional authorization as the Constitution requires.

Here is where his condemnation of Mr. Clapper comes in. Mr. Clapper is the senior intelligence officer in the federal government. All of our civilian spies, domestic and foreign, indirectly report to him. His job is to steal and keep secrets within the boundaries of the Constitution, which he, like the president, has sworn to defend.

Yet Mr. Clapper and his spies are more intent on spying on the American people than on those foreigners who have publicly boasted — however unrealistic their boasts may be — that they will cause us harm. This is, after all, the same Mr. Clapper who committed crimes in order to insulate his domestic spies from lawful congressional inquiry when he denied under oath that the U.S. government was acquiring massive amounts of private data about hundreds of millions of Americans.

He made that denial to a Senate committee when he knew what his spies at the National Security Agency were doing. When his lies became apparent, the Senate committee before which he perjured himself — and whose members knew that he was lying at the moment of his lies — gave him an opportunity to correct himself, and he declined to do so. For lying under oath and refusing to correct his statements, Mr. Obama should have fired him.

However, the president overlooked his spymaster’s public lies and went on television’s most widely watched program this week and publicly accused Mr. Clapper of privately failing to inform the president of something the president must have known about: the Islamic State’s advance on Iraqi population centers.

This war we are now entering is unlawful because we have invaded Syria without a congressional declaration of war, and without a legal or moral basis for doing so. It is morally wrong because the Islamic State is an imminent threat to the United States only in the minds of the members of Congress who love war, not in reality. It is also blind to recent history because it will become a more superior recruitment tool for the Islamic State than our original invasion of Iraq was for al Qaeda. The only reason al Qaeda and the Islamic State exist in Iraq is as resistance to the American invasion and occupation, an invasion that has materially detracted from the liberty and safety of the United States and the stability of the region.

Yet, if Mr. Clapper and his spies so miserably failed to educate the president about a threat he now claims is real, why do they still have their jobs? They have their jobs because if the president fires them, they might freely speak the truth, and the truth is the president’s enemy. They have their jobs because the president is so bad at performing his.

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is an analyst for the Fox News Channel. He has written seven books on the U.S. Constitution.