RUTHFULLY YOURS

“Mr. Rubio may be setting himself up to run as a social conservative hero in 2024, or even 2020 if President Trump declines to run, and the child credit obsession is a down payment on that brand. Yet voters looking for a candidate who understands what makes America—and American families—prosper will have to look elsewhere.”

The GOP is pushing forward on tax reform, though a receiving line of Republican holdouts are slow-rolling progress. One who deserves special mention is Marco Rubio, who contributed nothing to ObamaCare repeal and now aspires to dilute the tax bill. Voters ought to remember this when he’s next pitching himself for President.

On Wednesday Mr. Rubio and his political sidecar, Mike Lee of Utah, announced that they’ll file an amendment to the tax bill to change the $2,000 child tax credit. They want to make the credit refundable up to a person’s payroll tax liability, among other expensive tweaks. To pay for the changes, Messrs. Rubio and Lee would increase the corporate tax rate to 22% from the bill’s 20%.

If Mr. Rubio thinks payroll taxes are too high, he can propose a payroll tax cut. But then he’d have to weather the political fight of going after funding for Medicare and Social Security. So instead his back-door plan is to expand a refundable credit, which delivers checks to folks who owe no federal income tax. This is a disincentive to work and we would have thought antithetical to conservative principles.

More destructive is his increase in the corporate tax rate, which is the most pro-growth plank in the bill and could significantly increase what Americans earn since much of the tax falls on labor. A point or two more may seem like no big deal but it might be the difference between making the U.S. more competitive than the OECD’s roughly 24% average—or not. And that’s a mere average. One competitor for investment is Ireland’s 12.5% rate.

Mr. Rubio knows this, or ought to, yet his press release could have been written by Democratic leader Chuck Schumer. “Right now, 70 percent of the tax cuts we’re considering would go to businesses,” the Rubio-Lee dispatch says, “and only 30 percent to individuals.” This is a false choice—individuals earn income at businesses—and apes the left’s class-war politics.

There was never going to be justice for the American war dead of the Benghazi attack. The jihadist strike on the eleventh anniversary of the 9/11 atrocities was too bound up in the politics of the 2012 presidential election. Moreover, the prosecution of the lone defendant charged in the attack was a product of the progressive ideological insistence that acts of war can seamlessly be downgraded into mere penal offenses, adjudicated with all the due-process strictures that implies.

This bull-headed conceit is a fiction, and thus the experiment is a failure.

It is not my purpose to make a competing “I told you so” claim that Ahmed Abu Khatallah should have been designated an enemy combatant and consigned to military detention and trial. Yesterday, after an eight-week trial in civilian federal court in Washington, Khatallah was acquitted on the most important charges against him — the charges that arose out of the murders of U.S. ambassador J. Christopher Stephens, State Department employee Sean Smith, and CIA security contractors Glen Doherty and Tyrone Woods. Despite these 14 acquittals, he was convicted on four charges involving material support for terrorism, destruction of property, and carrying a firearm during a violent crime. There is no reason to believe that the outcome would have been more just — or even that we would have an outcome yet — had the case been assigned to the existing, deeply flawed military-commission system.

Instead, in positing two points, I want to restate a plea that we stop playing with fire and move beyond the deadening “military v. civilian” debate — Is it a war or is it a crime? — that has undermined American counterterrorism for 16 years.

Point One: The identification of our wartime enemy must be made with more precision — which is to say, the Authorization for the Use of Military Force (AUMF) under which we have been operating since October 2001 badly needs superseding. It is the AUMF that determines who can properly be regarded as an unlawful enemy combatant. Only unlawful enemy combatants may be detained, interrogated, and prosecuted outside the civilian justice system. It is not clear that the AUMF would have supported Khatallah’s designation as an enemy combatant, notwithstanding his murderous jihadist attack on U.S. government facilities. Part of that is because of the way the Obama administration distorted al-Qaeda, but another part is the increasing obsolescence of the AUMF.

At present, many if not most of the jihadist organizations we confront did not even exist when the AUMF was enacted (although most carry the DNA of al-Qaeda, as that network existed 16 years ago). The problem has long been obvious, even if we remain willfully blind to it: Our enemy is not a particular jihadist network; it is sharia-supremacist ideology, drawn from a fundamentalist interpretation of Islam, which spawns virulently anti-American, anti-Western jihadist factions. The factions come and go, their names changing over time — al-Qaeda, ISIS, Ansar al-Sharia, al-Shabaab, al-Qaeda in the Islamic Maghreb or in the Arabian Peninsula, and on and on. The constant is the ideology. It is what catalyzes the jihadists and knits their ever-evolving forces together.

We need a designation of the enemy that homes in on the ideology and brings within its sweep all these conforming groups. The current AUMF, to the contrary, is circumscribed by a long-ago event (9/11) and the entities (whether terrorist organizations or nations) that were complicit in it.

Point Two: To repeat what I have been arguing for over a dozen years, we need a national-security court. At the moment, we have two models for prosecuting enemy-combatant terrorists: the civilian justice system and the military-commission system. Neither one of them is a good fit. Khatallah’s case underscores the incurable deficiencies of civilian prosecution for acts of war that occur outside U.S. jurisdiction — as did the 2010 trial of Ahmed Ghailani, who was acquitted on 284 of the 285 terrorism counts arising out of his participation in al-Qaeda’s 1988 bombings of American embassies in eastern Africa. Yet, the military justice system is also inadequate to the task of addressing a non-traditional enemy who crisscrosses between the civilian sphere and combat operations.

As a Republican bill that would eliminate most of the state and local tax (SALT) deduction advances through Congress, it is prompting newfound concern from politicians and the media in high-tax states about the burdens their wealthy residents face. California governor Jerry Brown, who helped engineer a massive tax hike on his state’s richest residents in 2012, called the federal proposal to end the exemption for local taxes a “gross manipulation” of the tax code and an “attack” on his state—where 98 percent of households earning more than $1 million use the deduction (on average, claiming $462,000 in state and local taxes on their federal tax form). New York governor Andrew Cuomo labeled the reform a “scam,” though Democrats and Republicans have supported it over the years.

The New York Times, under a headline that urges readers to “take claims about the state and local deduction with a grain of salt,” rejected the principal Republican argument for eliminating the deduction: that it serves as a subsidy for high-tax states because it lets them keep their taxes high while giving their residents a break on federal taxes. Instead, the Times argued, states like New York send more money to Washington in taxes than they get back in federal spending, so residents deserve the federal deduction. “Saying Indiana subsidizes New York through the deduction ignores net revenue and spending,” the Times contends. Echoing that argument, Cuomo calls New York a “donor state” to the federal government.

Politicians from high-tax states like New York, California, and New Jersey have made this case for decades, dating back to when former New York senator Daniel Patrick Moynihan first began tracking taxes paid by residents of each state to Washington and comparing them with the amount of federal money flowing into each state. Others have continued Moynihan’s exercise, tracking these flows, but often in the most superficial ways, designed to create the illusion that some states are “dependent” on Washington because they get more than they send, while others are “donors” to the rest of the country.