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In an interview with Fox News Sunday‘s Chris Wallace, former FBI Director James Comey admitted that his agency made “significant mistakes” during the course of its investigation into alleged collusion between Russia and the 2016 Trump campaign. But he defiantly insisted that his critics—including and especially Fox viewers—were wrong to have ever doubted the FBI’s motives.

“The American people, especially your viewers, need to realize they were given false information about the FBI,” said Comey, referencing an idea promoted by President Donald Trump and his most ardent supporters that the investigation was part of a politically motivated effort to take down the administration.

In response, Wallace asked pointedly, “Would you agree the FISA [Foreign Intelligence Surveillance Act] court was also given false information by the FBI?”

Comey conceded that this was the case.

It was a methodical evisceration of the fired FBI chief, who attempted to downplay his own mistakes and contextualize previous statements he made that no longer hold up in the wake of Inspector General Michael Horowitz’s report. Horowitz chronicled the FBI’s appalling failures during its handling of the Russia probe, including 17 incidents of “serious performance failures.” Wallace raised three key issues with Comey, who tried and failed to explain them away.

First, Wallace pointed out that Comey had previously described the Steele dossier—a key piece of evidence used by the FBI to secure a FISA warrant for Trump campaign advisor Carter Page—as “part of a broader mosaic of facts” against Page. According to the Horowitz report, this was spin on the part of Comey: In fact, the Steele dossier was the fundamental component of the warrant. Comey haggled with Wallace about the definition of “broad mosaic of facts” but was essentially unable to rebut the charge that he had underplayed the dossier’s importance after its accuracy came under scrutiny.

Second, Comey expressed ignorance regarding the specific actions of his underlings, in an attempt to claim that he may not have known exactly at what point FBI agents came to doubt the dossier’s conclusions. This should be a black mark for him even if it is accurate.

Third, he had no explanation for why or how new information about Page—including that he had reported his contacts with Russians to the CIA—was misrepresented in the warrant.

Comey said these mistakes were unacceptable, and that his previous assertions that the FBI did everything correctly were “overconfident.”

“I was wrong,” said Comey. However, he maintained that ultimately the report had vindicated the FBI because the more outlandish conspiracy theories of a deep-state-orchestrated coup were not deemed credible.

Hanlon’s razor—Never attribute to malice that which can be adequately explained by stupidity—certainly applies here, and that’s a lesson Team MAGA should take to heart. But that’s not a vindication of the FBI. If Comey’s broader plea to the American public to continue placing trust in the nation’s top law enforcement agency falls on deaf ears, he will have no one to blame but himself.

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On Friday, the U.S. Court of Appeals for the Sixth Circuit granted the Ohio Attorney General’s petition for rehearing en banc in Pre-Term Cleveland v. Himes, in which a divided panel upheld a district court’s preliminary injunction against an Ohio law prohibiting doctors from performing an abortion if the doctor has knowledge that the reason for the abortion is that the unborn child has (or is likely to have) Down Syndrome.

This case presents two questions that involve interesting twists on arguments over the constitutionality of state-level restrictions on abortion. The first is whether the state’s purported justification for the ban—a prohibition on disability-based discrimination—is a sufficiently strong state interest to justify limitations on abortion that cannot be justified by other interests (such as the state’s interest in unborn life or the health of the mother) that were considered in Casey.  The second is whether a prohibition on performing an abortion for a specified reason, such as a Down Syndrome diagnosis, imposes an “undue burden” on the abortion right.

The answers to these questions will certainly affect the extent to which states may limit abortion. For instance, if the assertion of state interests not considered by the Supreme Court in Casey allows for the imposition of abortion restrictions beyond those contemplated in Casey (and subsequent cases), then anti-abortion states will be encouraged to identify additional such interests to justify additional abortion limits (as well as to enact laws that parallel the Ohio statute).

The first question calls upon the court to (re)consider the meaning of Casey.  Is the “undue burden” standard an absolute, across-the-board standard for the evaluation of abortion restrictions? Or is the “undue burden” standard merely the test to be applied to abortion restrictions adopted for the purposes of protecting unborn life? Put another way, if a state can identify another interest that is sufficiently compelling, does this mean it can impose restrictions on pre-viability abortion that would otherwise constitute an “undue burden”? (Indeed, if the interest is sufficiently compelling, then perhaps any burden imposed would not be “undue” in relation that interest.)

Even if the Sixth Circuit does not accept the argument that state interests not considered in Casey may justify additional limits on abortion, there is another interesting question about how to conceive of a prohibition on performing abortions for specified reasons prior to viability. On the one hand, the Supreme Court in Gonzales v. Carhart held that the prohibition of one particular method of abortion did not constitute an “undue burden” on the abortion right, in part because the law left other abortion methods available. On the other hand, for a woman seeking to terminate a pregnancy because of a Down Syndrome diagnosis, the Ohio law would seem to impose a complete prohibition on this woman’s ability to obtain an abortion, even prior to viability. Such a “ban” would seem hard to square with even a highly constrained interpretation of Casey, and thus would likely be deemed unconstitutional. (It is true that in such cases a woman could seek an abortion without telling the abortion provider of the reasons why—or perhaps even lying about it—but I do not think that possibility is likely to play a large role in the analysis.)

Depending on how this case is resolved in the Sixth Circuit, these issues could end up in the Supreme Court—but perhaps not as quickly as one would think. How quickly may depend, in part, on what the Court decides in June Medical Services v. Gee, another abortion which the Court is hearing this term and is likely to decide in late June. (Indeed, I would not be surprised if the Sixth Circuit waits to issue a decision Pre-term until June Medical is decided.)

This past Spring the Supreme Court denied certiorari in a case concerning an Indiana law that also prohibits abortion due to Down Syndrome (among other characteristics). If the Sixth Circuit panel’s decision is upheld en banc, Ohio will certainly seek certiorari, but in the absence of a circuit split it’s anyone’s guess whether four justices on the current Court would want to take the case. (Justice Thomas wrote separately, but only for himself, arguing that Indiana’s law advanced its “compelling interest in preventing abortion from becoming a tool of modern-day eugenics,” an argument echoed by the State of Ohio).

If Ohio prevails before the en banc court, however, we will have a circuit split between the Sixth and Seventh Circuits over the constitutionality of these sorts of abortion restrictions. This would present abortion rights advocates with a difficult choice. Given the circuit split, a petition for certiorari would very likely be granted, but it would also present the Supreme Court with an opportunity to narrow or alter Casey in significant ways. Were such a petition not filed, not only would the law remain in force in Ohio, but equivalent laws would likely be adopted in additional states, and anti-abortion states would almost certainly seek certiorari were any of those laws to be struck down in other circuits.

One other possibility to consider is that the en banc Sixth Circuit could rule against the district court’s injunction without fully deciding whether the Ohio law is constitutional under Casey. Because of the procedural posture of the case, some judges might conclude that the district court (and the panel) applied the wrong analysis in enjoining the law, which would justify a remand to the district court for further consideration. For example, some judges might conclude that Casey does not preclude states from asserting interests other than that of unborn life or the health of the mother to justify restrictions on abortion, and therefore the district court needs to decide, in the first interest, whether the Ohio has asserted a compelling interest and whether this law is narrowly tailored advance that interest. Such a decision might be seen as ducking the issue, to be sure, but this would hardly be the first case in which judges sought to avoid deciding more than necessary in an abortion case.

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From Judge Thomas M. Hardiman’s panel opinion in Northeastern Pennsylvania Freethought Society v. County of Lackawanna Transit System (3d Cir. Sept. 17, 2019):

In Lehman v. City of Shaker Heights (1974), the Supreme Court upheld a prohibition on political advertisements in buses’ “car card” interior advertising spaces…. Lehman predates modern public forum analysis but has been retconned into that framework. See Int’l Soc’y for Krishna Consciousness, Inc. v. Lee (1992); Cornelius v. NAACP Legal Def. & Ed. Fund (1985).

And from Merriam-Webster’s “A Short History of ‘Retcon'”:

Retcon is a shortened form of retroactive continuity, and refers to a literary device in which the form or content of a previously established narrative is changed. Retcons are often encountered in serial formats such as comic books or television series, where they serve as a means of allowing the work’s creators to create a parallel universe, reintroduce a character, or explore plot lines that would otherwise be in conflict with the work. Essentially, a retcon allows an author to have his or her cake and eat it too, as it enables the return of dead characters, the revision of unpopular elements of a work, and a general disregard for reality….

If retcon manages to stick in the English language it would hardly be the first word to have been given an assist from the world of comics. Brainiac is thought to have its origins in an early issue of Superman, and the pejorative term sad sack had its roots in George Baker’s comic strip of the same name.

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Happy Bill of Rights Day! For what it’s worth, the Third Amendment is still in pretty good shape—at least, the last soldier to crash on my sofa was a friend sleeping off a post-divorce binge. It’s a mixed bag for the other nine amendments in the Bill of Rights, though, with protections for some important freedoms facing serious incursions. What’s most disturbing is that the threat comes not just from the usual suspects in government, but from the public at large.

On the plus side, criminal justice reform is getting a long overdue look. Some tentative and limited reforms for asset forfeiture, cash bail, and mandatory minimums suggest that the Fifth and Eighth Amendments still have life in them.

But some top-tier liberties are in real danger.

Fourth Amendment-wise, this week brought us a much-anticipated Justice Department Inspector General’s report on the FBI investigation of the Trump campaign’s alleged contacts with Russia.  While Inspector General Michael Horowitz found no evidence that political bias motivated the decision to open the investigation, the report “identified multiple instances in which factual assertions relied upon in the first FISA application were inaccurate, incomplete, or unsupported by appropriate documentation.” This is how the feds conducted themselves in a high-profile investigation. They play at least as fast and loose with privacy protections for us commoners, according to a 2018 Foreign Intelligence Surveillance Court ruling that slapped at repeated FBI misuse of snooping tools.

Self-defense rights are more unpopular than ever with much of America’s political class. Politicians may not be able to define “assault weapon,” but many wannabe Democratic presidential candidates propose to ban the things—and even to confiscate them. While most Republicans reject such grabbiness, too many of them endorse the president’s unilateral restriction on “bump stocks” that let people rapidly fire some semiautomatic rifles. They’re also prone, along with their cross-aisle co-conspirators, to endorsing “red flag” laws that would let government officials temporarily (supposedly) suspend individual Americans’ Second Amendment rights with minimal due process muss and fuss.

Free speech gets similar disrespect from lawmakers. Last week four socially conservative members of Congress tried to revive old-fashioned sex panic, demanding that Attorney General William Barr “declare the prosecution of obscene pornography a criminal justice priority.” On an even more dangerous note, Democrats continue their efforts to trim First Amendment protections for core political speech. Their proposed constitutional amendment would not only potentially choke off the speech rights of people banded together as incorporated entities, it would also empower government to regulate the raising and spending of money to influence elections—an outright gift to incumbent politicians with easy access to free media coverage.

Legislators from both major parties want to strip away protections for online speech. And President Trump insists that “free speech is not when you see something good and then you purposely write bad, to me that’s very dangerous speech.”

But these are government officials. We assume that they’re nasty creatures who will always push against restraints on exercising the power that attracted them to their chosen careers. Against their worst efforts the public can supposedly count on the admittedly uncertain, but often helpful, protections of the Bill of Rights to protect their rights from government violation.

What happens, though, when the public itself becomes iffy about personal freedom?

It’s now trendy, especially on the progressive left, to question the value of free speech protections. These skeptics argue that relatively unfettered discussion is a tool of the powerful and of the un-lefty. A version of the viewpoint is winning favor among mainstream types like former Time editor Richard Stengel, who went from heading the National Constitution Center to favoring laws against very loosely defined “hate speech.”

That contempt for open discussion is reflected among the public at large. An October 2019 survey by the Campaign for Free Speech found that 51 percent of Americans think “the First Amendment goes too far in allowing hate speech in modern America and should be updated to reflect the cultural norms of today.” An even larger 57 percent think “the government should be able to take action against newspapers and TV stations that publish content that is biased, inflammatory, or false.”

Unfortunately, that hint of grassroots authoritarianism jibes with the 56 percent of Americans who supported domestic surveillance in the name of counter-terrorism after Edward Snowden revealed that the U.S. government was spying on private communications. At the time, a solid 59 percent of Democrats and Republicans alike wanted to prosecute the whistleblower for giving us a heads-up. Numbers shifted a bit in a more civil libertarian direction later, but most people’s initial reaction was to give the snoops a free hand.

Public support for self-defense rights is also eroding after a long period in which they seemed relatively safe and gained a big Supreme Court win in Heller. The ranks of Americans willing to compromise Second Amendment protections in the name of stricter gun laws is growing and now stands at 60 percent, up from 57 percent last year and 52 percent in 2017. Sixty-nine percent of respondents want to ban “assault-style weapons” and 71 percent favor giving the same treatment to ammunition magazines that hold more than 10 rounds.

Why are Americans seemingly becoming more willing to let the government intrude into people’s lives and penalize people for exercising their rights?

Interestingly, the Campaign for Free Speech sees political polarization at work. “While many who identify as conservative may dislike the reporting of CNN and would likely favor sanctions for ‘fake news,’ many progressives or liberals may feel the same way towards Fox News,” the group says. That is, while Americans may favor punishing “biased” media outlets, they see bias in media operations on the other side of the political divide and want to put the screws to their opponents.

The weaponized nature of the assault on speech rights becomes clearer when left-wing academics complain that “free speech law entrenches a social view at war with key progressive objectives,” and when social conservatives campaign against pornography, at least in part, as an exercise in “smashing the sacred cow of cultural libertarianism.”

Similar factional concerns may be at play in views of Fourth Amendment issues, too. Americans generally favored domestic surveillance after Snowden’s revelations, but after it became clear that the FBI—a major player in monitoring communications—was investigating Donald Trump’s 2016 presidential campaign, Pew Research reported, “the share of Republicans and Republican-leaning independents with a positive view of the bureau has fallen 16 percentage points,” from 65 percent to 49 percent. Democrats’ views of the FBI remained overwhelmingly positive, at 77 percent.

And attitudes toward Second Amendment rights have long divided along partisan lines. With firearm ownership established as a right-of-center preference (44 percent of Republicans report owning guns, compared to 20 percent of Democrats), 86 percent of “Democrats and Democratic-leaning independents favor stricter gun laws, compared with” 31 percent of their Republican and Republican-leaning counterparts, according to Pew.

There’s a good chance that Americans are turning against their own liberty because they’re deeply concerned that it might be enjoyed by people who disagree with them. They’d rather tighten the restraints on everybody then see their political enemies exercise universal rights.

That doesn’t bode well for constitutional rights protections, since words on paper can’t stand alone. The Bill of Rights can withstand a hostile political class if it’s supported by a culture that genuinely wants to be shielded from the depredations of government officials. If, instead, people come to see the Bill of Rights as a barrier to their efforts to harm their opponents, its component amendments will be reinterpreted or overturned so that they don’t get in the way of political warriors sticking it to each other.

So, happy Bill of Rights Day! Celebrate while it still means something.

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Leah and George—not their real names—have lived in the Palestinian West Bank since 2016. For the first seven days, they were allowed to be there. For the last three years, nine months, and counting, they’ve been considered illegal aliens.

The couple is from the other Palestinian territory, the Gaza Strip—a narrow piece of land sandwiched between Israel, the Mediterranean, and Egypt’s Sinai Peninsula. As Greek Orthodox Christians, they were always part of a tiny religious minority in a place that’s more than 99 percent Muslim. But their lives had grown less and less stable in the decade after Hamas stormed to power in Gaza in June 2007.

Tragedy visited the family almost immediately after the takeover. On October 6, 2007, Leah’s brother Rami—31 years old and the manager of a Protestant Christian bookshop—was abducted by Islamic fundamentalists, stabbed and shot to death, and left out in the street.

Their lives grew more difficult as the economic situation in the Strip deteriorated. Since an official goal of Hamas was to “obliterate” its Jewish neighbor, Israel responded to the change in government by launching a blockade against Gaza. As a result, nearly 2 million people today are trapped there under conditions of desperate scarcity.

The Israeli government strictly controls all border crossings, but Gazan Christians can apply for temporary visas to visit nearby holy sites, such as the Church of the Nativity and the Church of the Holy Sepulchre, around the holidays. Leah and George took advantage of such a pass. Leaving their house, their cars, their jobs, and virtually everything else behind, the couple and their four children traveled to the city of Ramallah and started over from scratch.

“Hamas hasn’t left anything good in that place,” says George. “So we took the cross and placed our lives in God’s hands.”

Now that the family is in the West Bank, they no longer have the day-to-day worries of life under siege. But stability remains elusive. As another Christmas approaches—their fourth away from home—they remain separated from relatives in Gaza, including George’s mother and three siblings. And anytime they venture outside the city of Ramallah, they’re taking a risk: The Israel Defense Forces (IDF) man security checkpoints throughout the territory; if you’re stopped and your ID shows a Gaza address, you can be sent back.

Leah’s sister-in-law—Rami’s widow—lives in Bethlehem, an hour and 15 minutes away. Leah describes praying Hail Marys and Our Fathers the whole way to visit her. Like the sword of Damocles, the possibility of deportation hangs above them all the time.

‘I Was Sick of Gaza’

The best-case scenario for people like Leah and George would be for Israel’s Coordinator of Government Activities in the Territories (COGAT) to formally change their address in the Palestinian population registry from Gaza to the West Bank. But since the outbreak of the second intifada two decades ago, the Israelis have refused virtually all requests to reregister Gazans in this way.

The second-best option is to get a “permit to remain” from COGAT. This permission, which is infrequently granted to begin with, must be renewed every few years, a process human rights groups have described as anything but pro forma. But for those who receive one, it’s a temporary reprieve from the threat of being sent back.

Khalil Sayegh is one of the lucky few. At 24, the Gaza-born Christian has been in the West Bank for 10 years. The first eight of those he spent in fear. But in 2017, he was hired as a fellow by the Philos Project, an American nonprofit that promotes “positive Christian engagement in the Middle East.” The group was able to get him a permit to remain, although it’s set to expire in February.

I met Sayegh in September, on a Philos-sponsored trip to the Holy Land. His own story is just as ripped-from-the-movies as Leah and George’s. “I was sick of Gaza—sick of persecution, sick of discrimination, also sick of war and the siege by Israel,” he says. So he fled to the West Bank at age 14, against his parents’ wishes. “They didn’t like it, but I had to do it. Because for the last year at school, I used to face people systematically trying to convert me to Islam, including my own teachers. And I always rejected it, so they really gave me a hard time.”

In Ramallah, Sayegh worked full-time, studied full-time, and crossed his fingers that he wouldn’t be caught. The circumstances weren’t ideal, but like illegal immigrants around the world, he found them preferable to what he had escaped.

Since getting his permit to remain, Sayegh has been able to travel safely within the West Bank. He’s not sure what will happen when it expires in a couple of months, but temporary status is better than nothing. Now he’s trying to help other Gazan Christians, including Leah and George, get legalized as well.

“It would definitely make things easier,” Leah says. In addition to her sister-in-law in Bethlehem, the family has relatives in the Israeli city of Nazareth. “We can’t go to visit them, or we go in secrecy and take a risk.” George usually stays behind on such excursions—he’s more likely to attract the attention of the IDF than is his wife. “If we had [West Bank] ID cards,” she says, “we could go and not be afraid.”

The Nightmare Scenario

In October 2009, Berlanty Azzam was two months away from completing a four-year business degree from Bethlehem University. The Gaza-born Christian was on her way back from Ramallah when the IDF picked her up. According to Gisha, an Israeli human rights group, “Berlanty was handcuffed, blindfolded, and removed to the Gaza Strip on that same day.”

Israel’s High Court of Justice later upheld the removal. Although it did not claim the student was a security threat, it found that she lacked the proper paperwork to be in the West Bank. Azzam said she had asked COGAT to change her address to Bethlehem but was repeatedly denied.

This is the nightmare scenario for people like Leah and George.

Freedom House classifies both Palestinian territories as “not free.” But while the West Bank scored just 25 out of 100 on the group’s 2019 “Freedom in the World” index, Gaza clocked in at an appalling 11. Locals describe the Strip as an open-air prison. The United Nations warned in May that the Israeli blockade had put it on the verge of a humanitarian catastrophe.

Hamas, which the U.S. government has designated a terrorist organization, officially recognizes freedom of worship. But as Sayegh points out, “when you have an Islamist government in power, the jihadists, those who are even more radical than Hamas, are empowered.” Last winter, a different militant group distributed flyers warning Gazans that celebrating Christmas was forbidden. Whispered stories of kidnappings, forced conversions, and other forms of religious persecution abound. The extent of the problem is impossible to verify, but one thing is certain: The Christian population is dwindling. Just 50 miles from the place where Jesus was crucified, fewer than 1,100 of his followers remain.

For Leah and George, of course, the physical peril of life in Gaza feels more than hypothetical. Leah becomes emotional while describing what the family has been through, beginning with the loss of her brother. “Our children have a lot of sorrow,” she says, wiping away a tear. “Terrible things have happened to us, but I thank God. It could have been worse.”

‘It Should Be Seamless’

Despite objections from humanitarian groups, Israel has stopped Gazans from formally becoming West Bank residents since 2000 and has stopped them from leaving the Strip at all, with a handful of exceptions, since 2007.

One of the loopholes has long been travel to the holy sites for Christmas and Easter. But in the last year, due to “heightened security tensions,” those holiday passes have become harder to obtain. In April, Israel announced that just 200 Christians, all over the age of 55, would be permitted to leave the territory for Easter, and only for travel abroad—to Jordan or Egypt, for instance, but not to Bethlehem (where Jesus was born) or Nazareth (where he spent most of his life). After an outcry, the government reversed itself, adding another 300 visas for the West Bank and Jerusalem. 

Leah and George have been praying their remaining relatives will be allowed to come to them in Ramallah in time for the holidays, and Sayegh has been petitioning the government to make that happen. But a successful reunion would amount to a Christmas miracle. Last week, COGAT announced that it would allow a total of 500 Gazans to travel to the West Bank and Jerusalem this winter—but the group Gisha has found that applicants are being denied permits if they have family members who left on a temporary visa and then failed to come back. This means Leah and George’s loved ones may face worse prospects for getting out thanks to the couple’s earlier decision to flee. (COGAT did not respond to requests for comment for this story.)

All this is a source of frustration for people on both sides of the geographic divide. “Under international law, Gaza and the West Bank are a single territorial entity,” says Omar Shakir, Human Rights Watch’s Israel and Palestine director. “So under human rights law, Palestinians should be able to move between Gaza City and Ramallah the same way you might move between, I don’t know, Tennessee and Georgia. It should be seamless. Israel has no right to restrict it.”

The problem is that, from the Israelis’ perspective, the threat of violence emanating from the Strip is not just hypothetical either. “In the face of the Jewish occupation of Palestine,” Hamas’ official charter reads, “it is necessary to raise the banner of jihad.” A September poll from the Palestinian Center for Policy and Survey Research found that more than half of Gazans view armed resistance as the best response to their situation. With bombings, stabbings, abductions, and other terroristic actions fresh in its memory, and with persecution deeply embedded in its history, the Jewish nation’s impulse to lock down the source of the danger is understandable. But as with all border enforcement, it comes at a human cost—especially this time of year.

“I believe that there is a true element to the security threat,” says Sayegh. “As a Palestinian Christian, even I am worried about Gaza being completely open to the West Bank, because I know how many terrorists there are.

“But there must be a way through which Israel can identify who is dangerous and who is not,” he continues. “This is collective punishment.”

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