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.

I was invited to provide commentary Tuesday night on Megyn Kelly’s Fox News program (“The Kelly File”) regarding the all too predictable but nevertheless appalling news that Khalid Sheikh Mohammed — al Qaeda heavyweight, 9/11 mastermind, decapitator of Daniel Pearl, jihadist warring against America for the better part of two decades, and murderer of nearly 3,000 of our fellow citizens — has been permitted to transmit propaganda out of the prison camp at Guantanamo Bay. The interview is posted on Megyn’s site here — I respond to contentions made by the first guest, defense lawyer and former JAG Charles Swift.

More needs to be said on this. Let’s first consider the insanity of permitting enemy combatants to communicate with the outside world while the war ensues — and though the administration rarely speaks or acts as if there is a war going on, and while the public pays it scant attention, we still have forces in harm’s way pursuant to a congressional authorization of combat operations; we are still killing and capturing enemy operatives pursuant to the laws of war, which is only permissible during wartime.

The rationale for shifting, post-9/11, from a law-enforcement counterterrorism paradigm to a war-footing prominently included the recognition that we had to regard as a military enemy, not as mere criminal defendants, the members of an international terrorist network that (a) had declared war against the U.S.; (b) was supported by rogue governments; (c) focused its jihad on American military, political, economic and civilian targets; and (d) was capable of projecting force on the scale of the 9/11 attacks. Contrary to popular wisdom, that remains a salient distinction.

Criminal defendant detainees in the civilian justice system are arrested only after being accused of crimes, and are presumed innocent of the charges. Thus, in the pretrial phase, they have an array of rights even if they are denied bail — and bail may only be denied based on risk-of-flight or convincing proof that they pose a danger to potential witnesses or the community at large. These pretrial rights include liberal opportunities to meet with counsel for trial-defense preparation, and to have contact with others in the outside world that approximates what accused people who are at liberty enjoy. (This changes if and when a defendant is found guilty at trial. Incarcerated convicts have significantly fewer rights and privileges than pretrial detainees.)

To the contrary, enemy combatant detainees do not have to be accused of prosecutable offenses in order to be lawfully detained, and they are generally denied contact with the outside world. The reason is straightforward. While the object of the civilian criminal justice system is to provide due process to the accused so that civil rights are protected and trial outcomes have integrity, the object of war is to defeat the enemy. Consequently, while we owe enemy combatants basic humane treatment, due process concerns are not a high priority. After all, the rationale for detaining enemy combatants has little or nothing to do with prosecution of a criminal case — indeed, there need be no criminal case, and in most instances there is not one. The purpose of detaining enemy combatants is to deplete the assets of the enemy and thus achieve victory more rapidly and with less bloodshed.

Governor Chris Christie’s press conference was impressive. I think he’d be well advised to remember that it was also fairly un-Christie-like. He was not the usual gruff, combative Christie we’ve come to know – the guy who tries to discourage difficult questions by making the questioner feel like a idiot for asking them.

That tactic may have caught up with him in this instance.

Emails confirm that massive September traffic jams on the George Washington Bridge and in Fort Lee were orchestrated by a top Christie aide, Bridget Anne Kelly, and a couple of Christie appointees to the Port Authority – likely in retaliation for the Fort Lee mayor’s refusal to support Christie’s reelection bid. Christie insists these underlings were acting without his knowledge, and that he barely knows Fort Lee mayor Mark Sokolich. To his credit, the governor moved swiftly to fire Kelly and another aide who was implicated – the Port Authority appointees had already stepped down. Christie certainly is not acting like a boss who is worried that disgruntled scapegoats can compromise him, or that other shoes could drop that implicate him. And he managed in his presser to convey that decisiveness and air of innocence with humility and contrition. This serves him well. If there is nothing more to the story, it will help him ride out the downside he is stuck with: his failure to manage his staff competently and his creation of an office climate in which they plainly thought their political hardball was acceptable behavior.

But that is not the end of the matter, at least for now. On December 23, or a little over two weeks ago, when politely asked in a townhall-style radio forum about “Bridge-gate,” the governor was gratuitously dismissive. The Port Authority appointees complicit in the manufactured traffic jams had tried to cover their tracks by claiming the jams had been caused by a “traffic study.” So the radio host asked the obvious question: Had Christie seen the study? The governor shot back: “No. What do I care?” (This can be seen on a video the radio station has released, at about the 2 minute-mark of the 3.5 minute clip.)

He obviously should have cared about the purported cause of the problem. He should have cared even more because he also explained, during the same townhall forum (again, referring to the traffic tie-ups), “I’ve asked my staff to give me a full briefing. They’ve told me everything that we know. None of this makes sense; it’s all about politics. None of it makes sense.”

Congratulations and thanks to my friends Rob Muise and Dave Yerushalmi at the American Freedom Law Center (on whose advisory board I am proud to sit, along with several distinguished Americans). They worked tirelessly and down to the 2013 wire to persuade the DC Circuit to issue a preliminary injunction last night that prevents the Obamacare mandate from going into effect.

The ruling holds that, at least for now, the government may not coerce religious believers, against the tenets of their faiths, to provide coverage for abortifacients and contraceptives. (The religious liberty position would not prevent those who want abortifacients and contraceptives – which are very affordable and easily accessible – from obtaining them; it would just prevent the government from forcing religious believers violate their beliefs by providing them.) Of course, as we’ve seen before, President Obama often does not deem himself bound by such trifles as judicial rulings and congressional statutes, so we’ll have to see how the administration reacts.

Here, meanwhile, is the press statement AFLC released:

Today, the U.S. Court of Appeals for the District of Columbia Circuit granted the American Freedom Law Center’s (AFLC) emergency motion for an injunction, thereby halting the enforcement of the Obamacare contraception mandate as applied against religious organizations pending appeal of a lower court ruling.

AFLC filed the emergency motion on behalf of Priests for Life, a Catholic pro-life organization; Father Frank Pavone, the National Director of Priests for Life; Dr. Alveda King, the niece of civil rights leader Martin Luther King, Jr. and the Pastoral Associate and Director of African-American Outreach for Priests for Life; and Janet Morana, the Executive Director of Priests for Life.

Absent the injunction, the mandate would have applied in full force against Priests for Life on January 1st.

On December 19, Federal Judge Emmett G. Sullivan, sitting in the U.S. District Court for the District of Columbia, upheld the government’s enforcement of the contraception mandate as applied against Priests for Life. AFLC filed an immediate appeal of the ruling to the Court of Appeals for the D.C. Circuit, and within 24 hours, filed an emergency motion with the appellate court, asking the court to enjoin the mandate while the case proceeded through the appeal process.

Robert Muise, Co-Founder and Senior Counsel of AFLC, commented: “The circuit court’s order was nothing short of a Christmas blessing, coming literally at the 11th hour. Without this injunction, beginning on New Year’s Day the federal government would have forced Priests for Life to either violate its sincerely held religious beliefs or face crippling fines of $100 per employee per day that it is not in compliance with Obama’s unconstitutional and unconscionable mandate.”

David Yerushalmi, Co-Founder and Senior Counsel of AFLC, commented: “We won this battle for religious freedom, but the war—and it is a fiercely fought war at every step along the way between the culture of life and the culture of death—continues. No doubt that this case will ultimately be decided by the U.S. Supreme Court.”

AFLC’s lawsuit was filed against the U.S. Department of Health and Human Services and its Secretary, Kathleen Sebelius; the U.S. Department of the Treasury and its Secretary, Jacob Lew; and the U.S. Department of Labor and its Secretary, Thomas Perez. Each department has a role in enforcing the challenged mandate.

Here at Ordered Liberty in late July, I opined that the national-security right was losing the debate over the National Security Agency’s controversial telephony “metadata” program. On Monday, a federal district judge in Washington ruled that the program violates the Fourth Amendment and must be dismantled. The decision, naturally, prompted standing ovations from our counter-counter-terrorism cognoscenti. The applause will fade rapidly.

Judge Richard Leon’s 68-page opinion is lawless – long on populist vent, short on jurisprudence. It is likely to have no substantive effect: Leon stayed his ruling until it can be reviewed by the D.C. Circuit Court, which shouldn’t need more than a nanosecond to reverse it. That is not because the appellate judges will be unsympathetic to the concerns that animate Judge Leon. It is because lower federal courts are honor-bound to follow controlling Supreme Court precedents, a duty the D.C. Circuit is apt to take more seriously than did Judge Leon.

Still, the fact that Leon was moved to rule as he did – and, in particular, to credit the NSA program with little if any material contribution to the prevention of terrorist atrocities – powerfully affirms what we posited here months ago: national-security conservatives, who dominated counterterrorism policy in the decade after the 9/11 attacks, are now losing the policy debate in the court of public opinion. In the end, that is the court that matters.

Metadata Myths

As Judge Leon’s opinion outlines, “metadata” is information about our telephone communications but not the content of those communications. Significantly, the metadata collected and stored by the NSA does not include identifying details, such as the names and addresses of the interlocutors. Essentially, the government is collecting the phone numbers involved in, and the duration of, the communications. The purpose is to connect the phone numbers and calling patterns of suspected foreign terrorists with phone numbers and calling patterns used in this country. Had this procedure been in effect before 9/11, it might have tipped off investigators, say, that overseas phone numbers used by al Qaeda emirs like Khalid Sheikh Mohammed were in contact with U.S. phone numbers that could, by further investigation, be connected to Mohamed Atta & Co.

The main point is that, contrary to all the shrieking about “domestic spying” and how the NSA is watching your every move, only your number is in the NSA’s database, not you.

Government Misrepresentations Anger the Judges

To be sure, we should assume that phone usage information of everyone in the country is being collected. On that score, Judge Leon was understandably miffed by the Obama Justice Department’s disingenuous suggestion to the contrary.

Eric Holder’s minions contended that Verizon Wireless customers lacked standing to challenge the program because the government had not previously owned up to collecting records from the company. As Judge Leon pointed out, however, the government’s justification for the NSA program is that it must gather in one government database all telephony records collected from all the different provider networks.

The idea is that if the telecoms kept their own records rather than turning them over to the NSA, the records (a) would not be searchable with the same rapid efficiency and (b) could be prematurely destroyed (since the companies do not have the same incentive as government investigators to store the records for years on end). That of course is true … but if the whole point is to collect all the metadata in one place and ensure full coverage of the potential terrorist-communication universe, it is grossly misleading to suggest, as Justice’s standing claim did, that perhaps the government had neglected to include Verizon Wireless and its tens of millions of customers. Judge Leon was not amused, exclaiming with an exasperation rarely expressed in court opinions: “Candor of this type defies common sense and does not exactly inspire confidence!”