America is in a long war against a resilient enemy capable of striking the homeland, but U.S. intelligence capabilities are falling short of meeting the threat. The San Bernardino attackers were not flagged, despite their repeated visits to jihadist websites, alarming posts on social media, and suspicious financial transactions. The Boston Marathon bombers evaded timely detection, as did the would-be shooters in Garland, Texas, who had exchanged dozens of messages with a known terrorist overseas.

Paris and San Bernardino exemplify the two types of threats: overseas-trained terrorists, and online-radicalized lone wolves. Both exhibit distinctive behavioral and communications patterns that can be detected—but only if intelligence agencies have the right data and tools to analyze it.

Yet Washington is blunting its surveillance powers. Collection of phone metadata under the Patriot Act was banned by Congress and finally ceased at the end of November. Collection of the contents of specific targets’ communications under the Foreign Intelligence Surveillance Act has been dumbed down, with onerous requirements to secure the authorizing court order. The intelligence community feels beleaguered and bereft of political support. What’s needed is a fundamental upgrade to America’s surveillance capabilities.

Congress should pass a law re-establishing collection of all metadata, and combining it with publicly available financial and lifestyle information into a comprehensive, searchable database. Legal and bureaucratic impediments to surveillance should be removed. That includes Presidential Policy Directive-28, which bestows privacy rights on foreigners and imposes burdensome requirements to justify data collection. Read more »

Paris is Copenhagen all over again — more presidential climate change grandstanding without concrete results.

By DAVID B. RIVKIN JR. & ANDREW M. GROSSMAN, 10 December 2015 in USA Today

The world is watching as diplomats in Paris hammer out the final details of a new climate agreement involving over 150 countries. The goal, said President Barack Obama, is “an agreement where … each nation has the confidence that other nations are meeting their commitments.”

But the world’s attention may be misplaced. There is no reason to believe that this agreement will conclude any differently from the last three, with nations reneging on commitments to drive down greenhouse gas emissions and to provide billions of dollars in foreign aid to finance reductions in the developing world.

That’s a big problem for the president: reciprocity has always been Congress’s chief concern when it comes to climate-related measures that threaten to drive up energy prices and sap the United States’ international competitiveness. The lack of binding commitments for developing nations like China and India is a big part of what killed consideration of one previous agreement, the Kyoto Protocol, in the Senate. And that, as well as general opposition to new greenhouse emissions regulations by congressional Republicans, presages the same result in Congress this time around.

Despite the messaging coming from the White House, as a legal matter, the president actually does need Congress’s support to complete any kind of meaningful deal. That legal reality is having serious consequences in Paris, where U.S. participation in the final deal is an overriding imperative. For one, it rules out any firm financial commitments. The Constitution, after all, assigns the power of the purse to Congress, and so the president cannot, on his own, set the U.S. foreign aid budget for years into the future. Read more »

The Supreme Court may soon end racial discrimination disguised as ‘diversity.’

by DAVID B. RIVKIN JR. & ANDREW GROSSMAN, December 8, 2015, in the National Review

The don’t-ask-don’t-tell era of racial preferences in college admissions may soon be at an end, as Abigail Fisher’s challenge to the University of Texas’s affirmative-action program makes its second appearance before the Supreme Court, which will hear the case this Wednesday. 

Significantly, Ms. Fisher isn’t asking the Court to ban affirmative action. Instead, her case seeks to hold schools to the general rule that the government may employ race-based measures only as a last resort. And even then, such measures must be almost perfectly calibrated to serve a compelling interest — in this instance, achieving the educational benefits of diversity.

In the admissions context, those principles have too often been honored in the breach. And for that, blame the Court. Its 2003 decision upholding the University of Michigan Law School’s affirmative-action program combined the tough language typical of decisions reviewing race-conscious government policies with a loose and open-ended analysis of the way the program actually worked and the way it was justified.

University administrators took the decision as license to do what they pleased, never mind necessity or tailoring, so long as they stayed vague about the way their programs worked. Admissions at UT–Austin offer a case in point. In 2008, the year Ms. Fisher applied, the bulk of students (81 percent) were admitted under Texas’s Top Ten Percent law, which grants automatic admission to top students at Texas high schools. That alone made UT–Austin one of the most racially diverse campuses among elite public universities. Read more »

By DAVID B. RIVKIN JR. and LEE A. CASEY, in the Wall Street Journal

Dec. 2, 2015 6:51 p.m. ET

Two days after terrorists rampaged in Paris, the Obama administration announced that it had transferred five prisoners—including a former Osama bin Laden bodyguard—from the U.S. prison facility at Guantanamo Bay, Cuba, to the United Arab Emirates.

In the past several days, the White House has signaled that a more significant step is coming soon: the complete shutdown of the facility and the transfer of the remaining detainees—there are 107 at the moment—to sites on the U.S. mainland. Obama-administration surrogates say the president will effect the change by using his favorite tool, an executive order. But this would be utterly illegal, since Congress has specifically prohibited the transfer of Guantanamo detainees to U.S. soil.

Although the president’s war powers are broad and formidable, so are those of Congress. In particular, the Constitution specifically vests the legislative branch with the powers to “declare War”; to “raise and support Armies”; to “make Rules concerning Captures on Land and Water”; to “make Rules for the Government and Regulation of the land and naval Forces”; and to appropriate funds for all of these purposes. Read more »

By PAULA J. DOBRIANSKY And DAVID B. RIVKIN JR., Oct. 4, 2015 6:11 p.m. ET

From Ukraine to Syria, the Obama administration has consistently misread Russian President Vladimir Putin ’s objectives and the implications of cooperating with him. This has led to costly failures, but the administration is unlikely to change its approach. Congress need not sit idle too. By enacting new sanctions on Russia, U.S. lawmakers can send a strong signal to Moscow that its continued aggression against Ukraine and growing complicity in a genocidal war in Syria will come at a heavy price.

After Russia annexed Ukraine’s Crimea in 2014, the Obama administration and many U.S. allies imposed sanctions on Russian businesses and individuals. But those measures clearly haven’t been effective in discouraging Mr. Putin’s quest to exert Russian power and influence.

In Ukraine, despite the supposed cease-fire effected by the Minsk Accords negotiated by Germany, France, Ukraine and Russia, Moscow-supported aggression continues in the contested east. Russian troops remain in the region, as an extensive Sept. 14 report from the Atlantic Council documents, and Reuters has reported that new Russian military bases are being built.

In Syria, Mr. Putin, under the guise of fighting Islamic State, supports the Bashar Assad regime, which has used barrel bombs and chemical weapons in slaughtering tens of thousands of civilians, mostly Sunni Muslims—making Russia complicit in, and legally accountable for, these actions. The Obama administration over the past week has hinted that it might cooperate with Russia’s anti-ISIS campaign. Read more »

A court rules that the House can sue the administration for its end-run on spending.

By DAVID B. RIVKIN JR. And ELIZABETH PRICE FOLEY

Sept. 10, 2015 7:46 p.m. ET

When the House of Representatives filed a lawsuit last year contesting President Obama’s implementation of ObamaCare, critics variously labeled it as “ridiculous,” “frivolous” and certain to be dismissed. Federal District Judge Rosemary Collyer apparently doesn’t agree. On Wednesday she ruled against the Obama administration, concluding that the House has standing to assert an injury to its institutional power, and that its lawsuit doesn’t involve—as the administration had asserted—a “political question” incapable of judicial resolution.

The House lawsuit involves two core allegations. First, the House contends that the executive branch has spent billions of dollars on ObamaCare’s “cost-sharing” subsidy, even though Congress hasn’t appropriated money for it. The House says the administration violated Article I, Section nine of the Constitution, which declares: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations Made by Law.”

Second, the House asserts that the administration has failed to faithfully execute ObamaCare’s employer mandate by issuing regulations lowering the percentage of employees who must be offered insurance and delaying the mandate’s effective date for two years. Read more »