Attorney General Eric Holder announced today that dozens of lawyers will be reassigned to the Justice Department’s pardon office in anticipation of a surge of applications from drug offenders for reductions in their sentences — applications the Obama administration has signaled it would look upon favorably. This exercise is another transparent usurpation of legislative power by the president. The pardon power is just the camouflage for it.

The pardon power exists so that the president can act in individual cases to correct excesses and injustices. It is not supposed to be a vehicle by which presidents rewrite congressional statutes that they disagree with philosophically (just as “prosecutorial discretion,” another doctrine the Obama administration has abused, is not supposed to be a vehicle by which the president substitutes his policies for duly enacted federal law).

The Obama administration is philosophically opposed to mandatory minimums in the federal penal law, especially in the narcotics area. The Justice Department is filled with racialist ideologues and pro-criminal rights ideologues (they tend to be the same people) who have long contended that the drug laws are racist. This is another of those absurd arguments that finds racism based on unintended consequences rather than racist designs.

The mandatory minimums for crack (“cocaine base”) crimes are more severe than for powder cocaine (which was called “cocaine hydrochloride” back when I was a federal prosecutor). Many crack distributors are black and Hispanic, while many powder cocaine distributors are white — although there are plenty of whites in the former category and minority dealers in the latter. Thus, it is contended, the mandatory minimums are racist in effect.

It has been argued for decades that this disparity is unjust. As a matter of racism, this claim is frivolous. As a matter of logic, it is not: crack is rightly punished more severely because it is more addictive and ruinous. For a long time, though, crack was punished at a 100:1 ratio to powder coke (e.g., the 10-year mandatory minimum kicked in at 5,000 grams, or 5 kilos, of powder coke but only 50 grams of crack). It is perfectly constitutional for Congress to do this, but it is not sensible — crack may be worse than powder coke, but not a hundred times worse.

The way our system deals with bad laws is to change them by legislative repeal or amendment, not for the president to decree new laws unilaterally. And, in fact, the drug laws have been changed: Crack is still treated more harshly, but the crack floor for the 10-year minimum was raised (by a factor of more than 5) from 50 to 280 grams. Similarly, for the 5-year mandatory minimum, the ratio is no longer 100:1 — while it is still triggered by 500 grams of powder cocaine, it now takes 28 grams of crack, not 5 grams.

To many people, this is still too wide a disparity, but note that the difference is based on the severe addictive tendencies and street-level violence associated with crack, not race. And in any event, if the law is to be changed, our system requires that it be changed by passing laws in Congress.

Outside of the specter of U.S. pressure on Israel to release additional scores of terrorists, I confess to having had little interest in the latest futile American quest to resuscitate the Israeli-Palestinian “peace process.” Like most transnational progressive enterprises, this decades-old theater is all process and no peace—about what you’d expect from a venture in which the United States believes it must be an impartial “honest broker” between America’s friends and America’s enemies.

To make a long, long, long story short, there can be no acceptable peace between Israel and the Palestinians absent four non-negotiable conditions: (a) there must be a single authority capable of negotiating for the Palestinian side; (b) the Palestinians must unconditionally accept Israel’s right to exist as a Jewish state; (c) the Palestinians must convincingly renounce terrorism; and (d) the Palestinians must abandon the absurd “right of return” demand. Islamic supremacists whine that this is a one-sided set of requirements, but it’s not. It is basic in any negotiation that each side acknowledge the other’s right to exist and basic sovereign prerogatives. Besides, we all know that there is almost no concession Israel would refrain from making for the sake of peace if these elementary understandings were in place. So my general attitude about the “peace process” is: Wake me up when the Palestinians agree to those conditions and, in the meantime, try not to do too much harm.

Nevertheless, it is worth reading Adam Kredo’s report in the Washington Free Beacon on the Obama administration’s underhanded efforts to scapegoat Israel for the inevitable failure of Secretary of State John Kerry’s farcical attempt to negotiate a final settlement without pressing the Palestinians to make the basic concessions everyone knows must be made. Adam writes:

The Obama administration has been waging a secret media war in capitals across two continents blaming Israel for the recent collapse of peace talks with the Palestinians, according to former Israeli diplomats and Washington, D.C. insiders familiar with the peace process.

Multiple sources told the Washington Free Beacon that top Obama administration officials have worked for the past several days to manufacture a crisis over the reissuing of housing permits in a Jerusalem neighborhood widely acknowledged as Israeli territory.

Senior State Department officials based in Israel have sought to lay the groundwork for Israel to take the blame for talks collapsing by peddling a narrative to the Israeli press claiming that the Palestinians were outraged over Israeli settlements, the Free Beacon has learned.

These administration officials have planted several stories in Israeli and U.S. newspapers blaming Israel for the collapse of peace talks and have additionally provided reporters with anonymous quotes slamming the Israeli government.

The primary source of these multiple reports has been identified as Middle East envoy Martin Indyk and his staff, according to these insiders, who said that the secret media campaign against Israel paved the way for Secretary of State John Kerry to go before Congress on Tuesday and publicly blame Israel for tanking the talks.

“The Palestinians didn’t even know they were supposed to be abandoning negotiations because of these housing permits, which are actually old, reissued permits for areas everyone assumes will end up on the Israelis’ side of the border anyway,” said one senior official at a U.S. based pro-Israel organization who asked to remain anonymous because the Obama administration has in the past retaliated against critics from inside the pro-Israel world….

So the Palestinians won’t concede that Israel has a right to exist as a Jewish state, and Hamas—which rules at least half the Palestinians and is not controlled by the Fatah faction Kerry is courting—continues to promise jihad until Israel is annihilated, and Obama wants you to think the problem is … housing permits in Jerusalem?

We have seen for over five years now that the Obama administration and its State Department (under both Hillary Clinton and Kerry) are sympathetic to the Islamic supremacist case against Israel—or, to try to put a more benign spin on it, are persuaded that appeasing Islamic supremacists is the best way to make them more accommodating. I happen to think that’s reckless, but wouldn’t it be refreshing if they’d just say what they really think rather than playing these stupid games?

And imagine being Israel about now, with President Obama saying, “Hey, don’t worry about what might be going on in my Iran negotiations. You know I’ve got your back.” Gives you lots of confidence, no?

I did not learn until this week that President Obama’s website, WhiteHouse.gov, regularly profiles young leftwing radicals it calls “Champions of Change.” Now, in a space of just a few days, two of the president’s “champions” have made news.

One is Linda Sarsour, described by the White House as a “community activist” who specializes in “community organizing” and “immigrants’ rights advocacy,” and who “conducts trainings nationally on the importance of civic engagement in the Arab and Muslim American community.” Evidently, civic engagement need not be civil engagement. Ms. Sarsour has joined her voice to that of CAIR in the campaign to suppress Honor Diaries, a film about the brutalization and systematic inequality faced by women in Muslim-majority societies. Ms. Sarsour reacted to the widely viewed and acclaimed film by tweeting:

How many times do we have to tell White women that we do not need to be saved by them? Is there code language I need to use to get thru?

I’d note that the executive producer of Honor Diaries is the heroic Somali human rights activist Ayaan Hirsi Ali. It features several courageous Muslim women, including Pakistani-born Qanta Ahmed, a medical doctor who has an important column about the film and the campaign to suppress it at NRO today. But there are indeed some “White women” involved in the writing, production and financing of the film, and that’s apparently too much for a “Champion of Change” to abide.

Earlier today, a jury in Manhattan federal court convicted Osama bin Laden’s son-in-law, Sulaiman Abu Ghaith, of al Qaeda’s conspiracy to mass-murder Americans, as well as providing material support to the terror network. I discussed the case here, and Ben Weiser’s report at the New York Times is here.

The result is cause for celebration, including for those of us who can separate public policy disputes from justice in individual cases. I have been arguing for many years that alien enemy combatants should not be given civilian trials, particularly while the war is still ongoing—and while the country certainly does not seem to be on a war footing, we are still have troops in harm’s way, we are still in armed combat against al Qaeda and its allies under a congressional authorization of force, and the Obama administration is still using lethal force against al Qaeda operatives under the laws of war. But regardless of whether I ever succeed in persuading the government on how enemy-combatant terrorists should be treated—the current administration is dead set against my position—I still want the United States to convict culpable terrorists, no matter where the trials happen, civilian or military court. The policy debate is by definition political (in the non-pejorative sense of “political”); but no one should want to see the trials themselves politicized.

Alas, Attorney General Holder cannot help himself. Here is part of the press release he put out after Abu Ghaith’s conviction:

I want to especially note that this verdict has proven that proceedings such as these can safely occur in the city I am proud to call home, as in other locations across our great nation. It was appropriate that this defendant, who publicly rejoiced over the attacks on the World Trade Center, faced trial in the shadow of where those buildings once stood.

We never doubted the ability of our Article III court system to administer justice swiftly in this case, as it has in hundreds of other cases involving terrorism defendants. It would be a good thing for the country if this case has the result of putting that political debate to rest. This outcome vindicates the government’s approach to securing convictions against not only this particular defendant, but also other senior leaders of al Qaeda.

This statement is by turns disingenuous, specious, and improper…which is what we’ve come to expect from Mr. Holder, throughout his Clinton and Obama stints at the Justice Department.

1. No one doubted that this terrorism trial in Manhattan, like the many before it dating back to 1993, would occur safely. The question was whether the heavy expense and burden involved in keeping it safe were worth bearing under circumstances where a perfectly safe trial facility is available at Guantanamo Bay. American taxpayers have spent untold millions to make Gitmo state-of-the-art, holding the trial there would have spared New York City lots of expense and anxiety, and we’d have had the added benefit of compliance with acts of Congress that endorse military commission trials.

2. How strange to point to “the shadow of where those [World Trade Center] buildings once stood”—a jolting reminder that they no longer stand because terrorists destroyed them about two months after the conclusion of another al Qaeda trial in Manhattan (involving four terrorists complicit in the 1998 bombings of U.S. embassies in East Africa).

As an enthusiastic fan of Senator Ted Cruz (R-TX), I am sorry that an ongoing project prevented me from participating in PJM’s Cruz symposium. But this relevant news just came over the transom, so I thought I’d at least pass it along.

As I’ve previously noted, Obama administration officials have been working the codify in federal law the IRS harassment and obstruction of conservative organizations that President Obama and Attorney General Holder claimed to find “intolerable,” “inexcusable,” “outrageous,” and “unacceptable” back when the scandal first came to light. As usual, it has been Senator Cruz leading the charge to try to stop them.

In the Senate today, Cruz offered two amendments that would have safeguarded the First Amendment rights of Americans against being profiled and targeted for IRS harassment. Specifically, it would have made it unlawful for IRS employees to:

[W]illfully act with the intent to injure, oppress, threaten, intimidate, or single out and subject to undue scrutiny any person or organization in any state.

One might think that discriminating against groups based solely on their political beliefs is something so manifestly wrong and un-American that everyone could agree it should be prohibited – especially after all the Obama administration’s bloviating about how terrible it is. Instead, Democrats unanimously opposed the Cruz amendment. Their majority assured the measure’s defeat.

The Washington Post finds it newsworthy that senior al-Qaeda figures are leaving (or being shown the door in) Iran. Obviously, it is an interesting development … but one is constrained to ask why the Post did not seem to think it much of a story that Iran was harboring al-Qaeda leaders in the first place.

Iran, as our friend Michael Ledeen has repeatedly observed (most recently, here), is the chief sponsor of jihadism in the world. That it is a Shiite jihadist regime has not made much difference where the West is concerned: the mullahs have trained, supplied, financed and harbored Sunni jihadists – al-Qaeda and Hamas prominently among them – for over 20 years. This is the most outrageous aspect of the U.S. government’s negotiations with Tehran over its nuclear program, negotiations conducted by both the Bush and Obama administrations. The regime’s nuclear ambitions have been compartmentalized from its terror facilitation, notwithstanding that it is the regime’s propagation of revolutionary jihad that makes its potential acquisition of nukes so intolerable. We do not sit up at night worrying about, say, India’s nuclear weapons. We have anxiety over Iran because for its regime, “Death to America” is not a slogan, it is a ruthlessly pursued goal.

This is why Michael and I, among not nearly enough others, have urged for a decade that the problem in Iran is the regime, not the nukes, and that any sensible American foreign policy should make regime change in Iran an imperative. This has never necessarily meant a military invasion of Iran (although that option should always be on the table – not as saber-rattling but as something the mullahs become convinced is a realistic possibility). It has simply meant that we should have organized every aspect of American foreign policy – military, intelligence, economic, and diplomatic – on strangling the regime until it is deposed, hopefully by the Iranian people themselves but by external forces if that’s what it takes.

The mullahs gave their al-Qaeda allies a soft place to land after the post-9/11 U.S. invasion. Naturally, some see the apparent al-Qaeda exodus from Iran as a hopeful sign that Obama’s amateur-hour rapprochement gambit is working. But of course, it has nothing to do with that. What the president is doing, as observed by none other than Iran’s “moderate” president Hassan Rouhani, is a slow-motion surrender – and note that, only a day ago, Tehran’s jihadist-in-chief, Ayatollah Ali Khamenei, called for “economic jihad” against the West. Iran has no incentive to help what Khamenei continues to call “the enemy,” the United States, against its erstwhile ally, al-Qaeda – and if it did, as Michael Rubin points out, it would be handing the al-Qaeda leaders over to us, not allowing them to return to places whether they can direct jihadist violence against us.

As noted in my weekend column at National Review Online, last Thursday’s Wall Street Journal editorial on the IRS scandal was stellar. Unfortunately, the same cannot be said for last Wednesday’s editorial on immigration – a rant against the Republican establishment’s sudden retreat from plans to push for immigration “reform” this year.

A number of conservative commentators, myself included, were baffled by the GOP’s apparent embrace of “amnesty first, enforcement (maybe) later” proposals. Those initiatives, while preferred by the Journal, the Chamber of Commerce, the Obama administration, and congressional Democrats, are anathema to Main Street – including the GOP’s conservative base, which must be turned out if the party is to succeed in what, thanks to Obamacare, is a promising midterm-election year. Still, even when I find myself opposed to the Journal’s bottom line on some issue or other, the editors’ take is nearly always smart and worth considering. Last Wednesday’s was neither.

The editors whine, for example, that “Alabama Senator Jeff Sessions and the Heritage Foundation,” who oppose the current reform effort, “might as well share research staffs with the AFL-CIO.” And … so what? It could just as easily be said that the WSJ editorial board seems to be strategizing with La Raza, the Center for American Progress, and the Obama White House. Such claims may be worth remembering the next time the Journal complains about smear tactics and guilt-by-association arguments, but they shed no light on the merits of the immigration controversy.

The Journal ruefully concedes that President Obama’s lawlessness, particularly in the implementation of the “Affordable” Care Act, has left him without credibility “on any other law he signs” – which, of course, would include the enforcement component of any immigration overhaul. That’s true, but as even Senator Chuck Schumer must know, it’s just a fraction of the problem. It is not just Obama but the federal government – Republican leadership as well as congressional Democrats – that cannot be trusted when it comes to policing illegal immigration.

Here at Ordered Liberty, I weighed in a few days back on the discussion Roger Simon and Bryan Preston were having about whether the Republican Party should de-emphasize social issues. Some other points are worth making.

The first is that not all “social issues” are created equal.

I don’t think either Roger or Bryan suggested otherwise. To recap how we got here, while Roger’s headline referred generally to “social conservatives” (“How Social Conservatives Are Saving Liberalism”), his post homed in on gay marriage. In rebuttal, Bryan did not delve deeply into the substance of gay marriage; instead, he broadened the debate to consider how a conservative retreat on gay marriage would fit into a pattern of surrender on social issues across the board. It is those issues that inspired the demographic known as “social conservatives” to, as Bryan says, “get into politics in the first place.” Thus, he contends, de-emphasizing them would cause social conservatives to disengage from politics. I agree. As argued in my post, the GOP cannot win elections with major defections from this critical component of its base.

Yet, it confuses matters to speak of “social issues” as one indiscriminate bunch, and to imply that each should be handled the same “no compromise” way. Just as every skirmish in the culture war is not equally significant, different social issues are of varying importance.

Abortion, for example, is the great civil rights issue of our time; marijuana legalization (also discussed in Roger’s critique of social conservatives) is not nearly as consequential, regardless of how one comes out on it.

Gun rights, free speech, and religious liberty are explicitly protected by the federal Constitution; their erosion thus raises grave concerns about the vitality of all constitutional guarantees and about the future of constitutional governance itself. To the contrary, because abortion and marriage are not addressed by the Constitution, the assumption by the federal courts or Congress of the power to regulate them imperils state sovereignty — absent the guarantee of which the states would not have ratified the Constitution. And the fact that an issue is a matter of states’ rights implies that different states may have different solutions.

Bryan is wise to focus on the effects of an across-the-board retreat on social issues. Still, each different issue needs to be taken on its own merits. The fact that I’d be unwilling to compromise on life does not mean I’m closed-minded on marriage. The fact that I would fight hard to protect the Second Amendment does not mean I think all gun restrictions are unworthy; it means I think the core of any express constitutional protection may only be narrowed by constitutional amendment, lest all constitutional protections be imperiled.

Roger’s focus was on gay (or “same-sex”) marriage, so let’s stick with that. He is certainly right that young people, as a class, are much more sympathetic to it than previous generations. That is the main reason polling of American attitudes on gay marriage has swung, in less than 20 years, from overwhelming opposition to clear support. In the Left’s “us versus them” approach to political issues (the main thrust of my previous post), “us” undoubtedly lines up on the pro side of same-sex marriage — notwithstanding that the anti side includes two notable Democratic constituencies: black Americans and Muslims (homosexuality being regarded as a capital offense under Islamic law). In just the last six years, Latinos, another Democrat-leaning constituency, have swung from opposing gay marriage to favoring it, driven by 18-to-29-year-olds.

Roger observes that young people now equate opposition to gay marriage with bigotry, which so offends them that he fears “the whole house of cards goes down” — i.e., if pressured by social conservatives to maintain their opposition, Republicans will lose young voters over this single issue, even though their economic self-interest and libertarian streak should cause young adults to reject the Democrats’ extreme statism.

As I countered in the last post, even if Roger is right about that (which he may be), Republicans considering a course reversal would still have to weigh any potential gains among young voters against the effect of alienating an essential part of their base.

On the question whether the Republican Party ought to de-emphasize social issues, I find myself more in the Bryan Preston camp than in Roger Simon’s. That’s ironic because, though I’m drawn to the logic of Bryan’s “Where do the surrenders end?” argument, the brute fact is: the political divide in the country has almost nothing to do with logic. It is, instead, about “us versus them.” Roger thus gets closer to the heart of the matter when he contends that “fairly or not,” opposition to gay marriage – today’s hotly contested social issue – is used “to paint the right as bigots. And young people … don’t want to hang with bigots[.]”

Where I respectfully suggest that Roger goes wrong is in too narrowly applying the truth he has hit upon. It is about much more than young voters. Social conservatives can be alienated, too. While Republicans might peel off a few social liberals by shelving opposition to gay marriage, the party cannot win without the social conservatives, a major part of its base.

We are in “us versus them” politics because the Left’s positions are shot through with contradictions. The agenda is not logically compelling, whether we’re talking about paying people not to work; raising the minimum wage (i.e., eliminating entry-level jobs) and championing illegal immigration at a time of extraordinarily high unemployment; punitive taxes and regulations that shrink the wealth available for redistribution; healthcare “reform” that does next to nothing for the uninsured while booting millions of insured Americans off their policies and raising costs dramatically; closing Gitmo by freeing anti-American terrorists to return to the jihad; and so on. That is why Democrats, once they win office and become accountable to voters, prove endlessly malleable: walking away from some of these agenda items, “waiving” the dire effects of others, and banking on a compliant media’s help in blaming the inevitable mess on purported right-wing sabotage.

Logic, however, is not the point. The architects of these policies are striving for power, not coherence. They achieve power by promoting a Manichaean politics: they are the progressive lovers of humanity, while we on the right are the evil, bigoted Babbits. We can argue logic until we’re blue in the face. They will focus on the culture and the classroom, using relativism and political correctness to eviscerate the critical thinking skills that logic requires. The left’s voters are relentlessly challenged to remember not so much what they stand for as whom they stand with. This is often accomplished through ploys like the “war on women” and “Pajama boy.” These seem juvenile to us because we’re missing the point, which is solidarity not persuasion.

Roger may be right about the salience of gay marriage for young people. The logic of “traditional marriage” is beside the point; the debate has become the noble “us” versus the baleful “them.” Young voters, however, are just one demographic in a broad landscape that includes legions of social conservatives. Without the support of those legions, Republicans simply cannot win elections, especially presidential elections.

Consider the 2012 campaign. I bet that if you told the Romney folks a day or two before Americans went to the polls that Barack Obama would lose nearly four million of the voters who supported him in 2008, Mitt and Ann would have been ordering new White House curtains. Yet Romney lost because he barely edged McCain’s poor 2008 showing. Those four-million voters did not shift to the GOP; they stayed home. So, additionally, did millions of conservatives.

The right, very much including social conservatives, was indifferent to Romney just as it was to McCain – a progressive Republican notorious for bashing conservatives. As the chief proponent of Romneycare, the Massachusetts precursor of Obamacare, Romney demoralized the conservative base, largely nullifying the issue that had propelled Republicans to a smashing victory in the 2010 midterms. Moreover, Romney and his GOP establishment advisers decided that focusing the campaign myopically on Obama’s dreadful economy was the winning strategy. Social conservatives felt slighted, and many reciprocated by ignoring the candidate – notwithstanding their opposition to Obama.

We explained in yesterday’s Ordered Liberty post that the publication of jihad heavyweight Khalid Sheikh Mohammed’s communiqués, disseminated from the terrorist detention facility at Guantanamo Bay, herald the return of the pre-9/11 paradigm: jihadist terror treated as a mere law-enforcement problem, not a war. Now, we turn to the propaganda aspects of KSM’s published writings, which — so far as we know at this time — include an Islamic-supremacist manifesto (published by the Huffington Post) and a lengthy letter to a social-worker pen-pal in Britain (reported on by the Guardian).

Let’s start by observing that it would have been inconceivable during, say, World War II, for the U.S. government to permit imprisoned German or Japanese enemy combatants (of which there were thousands) to enable publication of ideological propaganda from American detention facilities. It would have been nearly as inconceivable for American lawyers to argue that alien enemy combatants had a “right” to communicate with the outside world this way, or for American news outlets to publish enemy propaganda under the guise of “news” reporting. The two latter institutions have changed for the worse, and the government (very much including the courts) is bending to accommodate, rather than resisting, the Lawyer Left and the media.

For the reasons detailed in yesterday’s post, this is an alarming development. The national imperative in wartime should be victory over our enemies. We should not be at war unless we have that commitment — it is a profound betrayal of the young men and women we put in harm’s way to enable our enemies. KSM has no constitutional rights, we owe him only humane treatment, and it is ludicrous to suggest that he has a right to get his messages out to the world while he is lawfully detained as an enemy combatant.

Yet, the Obama Defense Department told Fox News that it is capable of vetting jihadist communications to ensure that their publication poses no threat. Even assuming for argument’s sake that the government has such a duty — and it does not, there should be a blanket prohibition — the claim is laughable.

As I demonstrated in yesterday’s post, the communications of imprisoned jihadists, even those that seem ostensibly harmless, increase the prestige of the inmates in the eyes of Islamic supremacists. They can be exploited by the imprisoned jihadists’ confederates for purposes of fundraising, recruitment, and calls to violence. It is not a matter of what our genius government analysts believe they can divine in the way of jihadist commands and coded messages. It is a matter of how the jihadists on the outside can use communications from imprisoned terrorists to promote anti-Americanism and jihadism.

But even putting that aside, our government is incompetent when it comes to vetting jihadist communications. It cannot be competent because it has spent the last quarter century putting its head in the sand on the matter of Islamic supremacist ideology and the nexus between Islamic scripture and jihadist violence.