Wednesday, November 18, 2015

Y KANT ANDREW McCARTHY READ?

National Review's Andrew C. McCarthy wants you to know that President Obama is a an evil lying traitor because -- says McCarthy -- federal law insists on a religious test for refugees seeking asylum, contrary to what the president says:
In his latest harangue against Senator Ted Cruz (R., Texas) and other Americans opposed to his insistence on continuing to import thousands of Muslim refugees from Syria and other parts of the jihad-ravaged Middle East, Obama declaimed:
When I hear political leaders suggesting that there would be a religious test for which a person who’s fleeing from a war-torn country is admitted … that’s shameful…. That’s not American. That’s not who we are. We don’t have religious tests to our compassion.
Really? Under federal law, the executive branch is expressly required to take religion into account in determining who is granted asylum. Under the provision governing asylum (section 1158 of Title 8, U.S. Code), an alien applying for admission
must establish that … religion [among other things] … was or will be at least one central reason for persecuting the applicant.
Um, no. That's not what the law says -- or at least that's not what the law in its full, ellipsis-free form says. Here's that passage unedited (but with emphasis added):
To establish that the applicant is a refugee within the meaning of such section, the applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.
Unlike McCarthy, I'm not a lawyer, much less a former assistant U.S. attorney for the Southern District of New York. I've never been involved in federal prosecutions of prominent terrorists. But I know the meaning of the word "or." It's not the same as "and." Religion is one of the possible reasons for persecution that can justify an application for refugee status. An applicant must be subject to one of the listed forms of persecution or another.

McCarthy continues in this vein:
Moreover, to qualify for asylum in the United States, the applicant must be a “refugee” as defined by federal law. That definition (set forth in Section 1101(a)(42)(A) of Title , U.S. Code) also requires the executive branch to take account of the alien’s religion:
The term “refugee” means (A) any person who is outside any country of such person’s nationality … and who is unable or unwilling to return to … that country because of persecution or a well-founded fear of persecution on account of … religion [among other things] …[.]
The law requires a “religious test.”
Again, no. It is not true that the law "requires the executive branch to take account of the alien’s religion." Sorry, Andrew, but there's that pesky word "or" again (I've added extra-special emphasis just so you don't miss it):
The term “refugee” means (A) any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or...
Yes, or...
political opinion....
Is McCarthy stupid? Or does he just assume his readers are?

I assume he knows he's bending the truth. But he's doing it in the service of a higher calling -- or, rather, two higher callings: fanning the flames of anti-Muslim bigotry and inspiring the rabble to hate Democrats. It's disgraceful -- but who'll call him on this disinformation? So what he's saying is likely to be ensconced as a right-wing meme very soon. Expect an email forward from your right-wing uncle any day now, and expect to hear this a lot on Fox.

14 comments:

Matt said...

Thanks for doing a post on this. Conservatives are already crowing about this law and claiming it means what you clearly show it does not mean.

Ten Bears said...

It can't read because it is a Murican, fuck yeah!

Redhand said...

I am an immigration attorney who handles many asylum cases. You are quite correct. The word "or" in the statute does not mean "and". Religion is merely one of the the five "enumerated grounds" in the statute, any one of which will entitle a claimant to a grant of asylum if she/he suffers persecution on account of it. If the conjunction were not in the disjunctive, and were instead in the conjunctive, the only way one would obtain asylum is if the claimant were persecuted on all the grounds. That, is a paid absurdity. I've had many asylum cases granted where there was no question whatsoever regarding religion, because the persecution was NOT based on religious belief. Indeed, if one were persecuted on one of the other protected grounds (such as political opinion) and an adjudicator tried to work a subjective evaluation into the decision based on what the person's religion was, it would be plain error justifying a reversal.

Anyone, such as Mr. McCarthy, claiming the contrary is either incapable of reading plain English, or is intentionally distorting the law to get raves from the rubes. Anyone arguing for his interpretation before an adjudicator would be laughed out of the room.

Blackstone said...

The only thing dumber than a lawyer who uses ellipses in briefs to hide unfavorable passages when quoting law is the lawyer who fails to look up the quoted portion to see what was left out. More than once I have been rewarded with ammo to take down my opponent's argument just by looking it up.

CWolf said...

He has solid polling that flatly states republican voters (especially the fox addled) are more ignorant than liberals.

Unknown said...

There's no lack of legal beagles here pointing out that, in this scuffle at least, Steve M. is standing on the decidedly more firm ground.

But proper legal foundation has nothing whatsoever to do with McCarthy's "higher calling" at his current gig. Near as I can discern, the clarion at NRO sounds at its loudest for bigotry, as established by the Founder of its paper parent.

There are several ways of getting hired into the office of U.S. attorney. One way is unarguably political: U.S. attorneys are political appointees, and once in place they have a lot of say in hires into their offices. Another is - or rather HAS BEEN HISTORICALLY - unarguably on merit, in competition for career hire within the U.S. DoJ bureaucracy.

I strongly suspect (actually, more than that) that McCarthy was hired into the NYSD US attorney's office as a 'combination' hire. He wasn't a particularly outsanding scholar, but he was fortunate in applying for a position there during a period when the top grads out of top law schools had all been going into corporate finance for some time (Those actively involved in those days in the educational processes of bar qualification programs will recall this as being bang on: the idealist generation ended by the early 2980s at the latest; McCarthy didn't even graduate from law school until just a few years before the Blind Sheikh prosecution, his only case of any even public note.)

And the Blind Sheikh's conviction wasn't exactly a produce of the least brilliant forensic work: they had the guy ON VIDEOTAPE supervising the building the very bombs some of which were used in the 1993 attack on the WTC. Honestly, Steve: any attorney posting here could teach you all you needed to know to wrassle that baby into submission well within a single semester.

Here's my one and only praise of Andrew McCarthy: at least he came to realize that he was out of his depth and quit before anyone outside the DoJ realized what a putz and whackoid he is.

Vixen Strangely said...

Taking up this particular strain of mistruth at National Review doesn't cost him anything, because people who chose to get their heads fed at that particular trough (see also FOX Mushroom Farm, Washington Times, WND) aren't about to fact-check for anything. Most arguments I'm seeing re: refugees on the right blogs are proof of the kind of epistemic closure that can't even abide googling for what the process actually entails. They are quite willing to believe Obama is shipping them in on cruise ships and welcoming them to Smallville USA with an Obamaphone and a foodstamp printing press.

Ken_L said...

Obama insists on bringing 200,000 Syrian refugees to America over the next two years. Obama wasted billions of dollars to train five Syrian rebels. These are just two of the bare-faced lies I've read today by right-wingers. And the lies the Republican candidates have told repeatedly in the "debates" need no repetition.

The only thing that has ever restrained politicians and their boosters in the media from deliberate, sustained lying is a sense of social obligation - a feeling that honorable Americans don't do that kind of thing because ultimately America will be the poorer for it. Sadly, the right no longer cares about ethics in political discourse. They are desperate to win, and they will try to do it using any means they can.

Theo said...

McCarthy's fallacy has nothing to do with the word "or". In my reading of your post, the law is asking if the refugee under consideration was or will be persecuted for their religion (among other things). The key to the law is that somebody is being or is fearing persecution. The law has no test for what religion (or what race, nationality, etc.). Arguing over the word "or" is falling into McCarthy's trap of word salad clearly irrelevant both to his anti-Muslim agenda and to a more compassionate person's agenda.

Aunt Snow said...

Can I point out that even if McCarthy were right, which he's not, the Syrian refugees would still qualify, because they are being persecuted by ISIS because of their religion - because they do not share the same extremist cult of Islam that ISIS does. ISIS kills more Muslims than any other group.

giantslor said...

"I assume he knows he's bending the truth. But he's doing it in the service of a higher calling"

Well yeah, that's the entire M.O. of the right. And sometimes they just make shit up. Sometimes on Memeorandum I'll see a damning headline from a right-wing site and briefly be worried, but then I remember the source. I learned from reading conservative sites for years that all right-wingers are liars or idiots until proven otherwise.

Yastreblyansky said...

Theo's right to note that it's not just the ellipses, but that it isn't a "test" of whatever affiliation at all, but rather of persecutability. Hindus from Sri Lanka might qualify but not Hindus from India, Christians from Sudan but not Orthodox Christians from Ethiopia, etc.

What's important about the ellipses though is that they make it clear McCarthy knows he's lying. He makes up this stupid argument and he's perfectly aware that it's false at the simplest level, though he may not quite understand how deeply wrong it it. I always think for most skillful liars there's an element of belief that what they're saying is true. I can't imagine what McCarthy thinks he's up to, unless it's winning at some kind of game where he assumes everybody cheats.

Ten Bears said...

The more so as proper form is to blockquote sources, ellpses serve only to obfuscate. Properly placed they function well in creative writing but otherwise are flag to the author's ineptitude. It's an IT nightmare when paginating a large brief as by proper form they just shouldn't be there. I've tried many times to s'plain it, but they're lawyers, who know everything there is to know. Just ask em, they'll tell you so.

Ten Bears said...

The more so as proper form is to blockquote sources, ellpses serve only to obfuscate. Properly placed they function well in creative writing but otherwise are flag to the author's ineptitude. It's an IT nightmare when paginating a large brief as by proper form they just shouldn't be there. I've tried many times to s'plain it, but they're lawyers, who know everything there is to know. Just ask em, they'll tell you so.