RUTHFULLY YOURS

The Supreme Court heard oral arguments Tuesday in a case that could decide whether foreign nationals outside the U.S. are entitled to constitutional protections. Such a ruling would unleash fresh opportunities for lawsuits against everything from drone strikes to interrogation, and the good news is that the Justices seemed skeptical of upending decades of settled law.

Hernandez v. Mesa started with a 2010 fatal shooting: A U.S. federal agent fired on Mexican teenager Sergio Hernandez-Guereca from across the border. The boy’s parents say their son was playing with friends, though Justice Department records revealed that Hernandez had twice been arrested for smuggling aliens into the U.S. Prosecutors concluded there was insufficient evidence to indict the agent.

Yet the parents filed a lawsuit, and one question before the High Court is whether Hernandez, a Mexican citizen shot on Mexican soil, is entitled to Fourth Amendment protection against the unjustified use of lethal force. The plaintiffs say the Court should consider the “totality” of the circumstances, including that Ciudad Juarez, Mexico and El Paso, Texas are one metropolitan community.

The plaintiffs rely on Boumediene v. Bush, the 2008 case in which a 5-4 majority ruled that enemy combatants detained at Guantanamo Bay have the constitutional right of habeas corpus. The plaintiffs know that Justice Anthony Kennedy wrote that opinion, and they are hoping he will expand the logic of Boumediene to open a new area of rights for foreigners. Thus they embrace the “functionalist” approach in that ruling in which the Justices look at more than merely where the conduct occurred.

But Boumediene turned on the reality that the U.S. has “complete and total control” over Guantanamo. In “every practical sense,” Justice Kennedy wrote, “Guantanamo is not abroad.” That’s not true of the sovereign nation of Mexico, and it’s hard to find a clearer dividing line of jurisdiction than the U.S.-Mexico border.

The better precedent is U.S. v. Verdugo-Urquidez, which held in 1990 that Fourth Amendment protections don’t apply to searches and seizures of aliens in foreign countries without a “significant voluntary connection” to the U.S. Applying the Fourth Amendment across the globe, the Court said in Verdugo, would “significantly disrupt the ability of the political branches to respond to foreign situations involving our national interest.”

Since the election of Donald Trump the “partisan divide” has escalated into a “Civil War,” according to many commentators. “The Fight for Washington” headlines a PJ Media column. The New York Times’ Thomas Friedman says Trump’s election was a political “Pearl Harbor.” The intelligence community is rumored to be at “war” with Trump. Progressive Democrats have organized a “Resistance,” as though their party is occupied France during World War II.

Apart from the hyperbole, such descriptions are essentially right. The problem is, too many Republicans don’t know they’re in a war.

That’s because many establishment politicians and pundits still cling to fantasies of “bipartisanship,” “civility,” “decorum,” “good manners,” and the “rules of good behavior.” Senators obsess over upholding “Senate tradition” and its sacred “rules,” and they miss their cloakroom bonhomie and gym-locker joviality with their Democrat counterparts. They bemoan the “partisan divide” and the failure to “reach across the aisle.” They agree with Obama minion Cass Sunstein, who has a new book out decrying what he calls “partyism,” a psychological disorder almost as bad as “racism.”

They all should be made to read the history of democracy starting with ancient Athens, and then write out Madison’s Federalist 10 a hundred times on the blackboard. A country as diverse as America has always been divided into “factions” whose “passions and interests” conflict with those of other factions, often creating a zero-sum conflict. To paraphrase Plato, every faction is by nature at war with every other faction, and peace is just a word.

Moreover, empowering the common people whatever their levels of education or social mores means free political speech will be anything but decorous or good-mannered. As Aeschylus said, “Free men have free tongues.” More typical of traditional democratic political speech is the vile description of Thomas Jefferson by a disgruntled writer Jefferson had hired to smear his rival John Adams as a “hideous hermaphroditical character.” The vengeful journo called Jefferson a “mean-spirited, low-lived fellow, the son of a half-breed Indian squaw, sired by a Virginia mulatto father.”

The “decorum” and “civility” ritually praised by Republicans are the political version of the disastrous ROE’s that have cost the lives of our soldiers in Iraq and Afghanistan. We’ve watched for years as the Republicans fought by Marquess of Queensbury rules while the Dems donned brass knuckles and swung blackjacks. While some of our Senators fretted over “traditions of the Senate” and lost “bipartisanship,” Don Obama and his Luca Brasi Harry Reid filled the Senate chamber with legislative IEDs––Obamacare, now circling the drain; an $800 billion “stimulus” that spent from half a million to four million dollars on each job it created; the job-killing Dodd-Frank regulatory hydra that so far has cost $36 billion, and record-setting deficits and debts. All the while our country’s economy stagnates and our enemies and rivals flourish at the expense of our security and interests. And these Republicans still wonder how Donald Trump bested 14 Republican primary rivals and defeated the Democrats’ off-brand Eva Peron?

President Trump has selected independent-minded U.S. Army Lt. Gen. H.R. McMaster to replace National Security Advisor Mike Flynn who vacated the key White House post last week under a cloud.

The Independent Journal Review said McMaster, who will retain his active military status, would appeal to conservatives, describing him as someone who is “six different kinds of badass.”

McMaster “is highly respected by everyone in the military, and we’re very honored to have him,” Trump said yesterday afternoon in Palm Beach, Fla. The president acknowledged Vice President Mike Pence played a role in the selection process.

Retired Lt. Gen. Keith Kellogg, who had replaced Flynn on an interim basis, will become McMaster’s chief of staff, according to Trump. Former UN Ambassador John Bolton, who had been in the running to succeed Flynn, was reportedly asked to play an unspecified role in the Trump administration.

Fresh from his overseas tour apologizing for Trump’s presidency, Sen. John McCain (R-Ariz.), said McMaster was an “outstanding choice” and “a man of genuine intellect, character and ability.”

“He knows how to succeed,” the curmudgeonly failed presidential candidate said in a statement. “I give President Trump great credit for this decision.”

Rep. Devin Nunes (R-Calif.), the chairman the House Intelligence Committee, hailed McMaster for his “history of questioning the status quo and infusing fresh thinking and new approaches into military affairs.”

Iraq war veteran Sen. Tom Cotton (R-Ark.), also lauded the choice, describing McMaster as “one of the finest combat leaders of our generation … a true warrior-scholar.”

A career officer and strategist, McMaster holds a doctoral degree in American history and is considered to be a serious intellectual and strategist. He lacks Flynn’s background in the intelligence community but commanded forces in both Iraq wars.

Surprisingly, the Los Angeles Times, a fairly reliable barometer of current left-wing thinking, failed to experience a grand mal seizure while reporting on McMaster yesterday, which may suggest the Left won’t spend a lot of time laying land mines for the new presidential appointee. The paper’s report didn’t go particularly hard on the general.

We live in unusual times. While most of my Leftist friends refuse to admit it, the Obama Administration tilted far to the left: ObamaCare became the biggest government program since the 1960s. The “Life of Julia” and Pajama Boy represented the promise of Obama’s paternalistic government. Administrative agencies like the EPA, the Consumer Protection Bureau and the FCC enacted and administered laws, and then assessed penalties on violators – acting as judge, jury and executioner. Universities, once bastions of free speech, became temples of intolerance toward those who dared speak freely against accepted norms. The Administration compartmentalized voters, deepened divisions and then plumbed the subsequent fractious behavior for political advantage.

Mr. Obama backed away as leader of the free world – leading from behind in Libya, doing nothing as Russia annexed Crimea and invaded eastern Ukraine. He ignored Assad’s crossing of his “red line” in Syria, and watched as China invaded, then developed airbases on the Spratly Islands in the South China Sea. He opened the door to Cuba, but ignored its human rights’ violations. Israel was isolated and North Korea continued its nuclear program. He stood by as Venezuela sank into dissolution, and provided Iran the time and means to develop nuclear weapons. Despite Islamic attacks at home, Mr. Obama never called Islamic terrorism by name, for fear of offending Muslims.

The seeds that were sown by those on the far Left – coastal elites, academic chauvinists, environmental militants, vacuous minds from the world of entertainment, a potpourri of constituents that had been segregated for easy access, and millions of people dependent on the largesse of government – are now reaping the whirlwind. The consequence: for six years, Republicans have picked up State legislative seats and governorships, indicating that people want government to protect their God-given rights, not to take them away. It has been a trend ignored by the Left.

There have always been fringe elements on the Right, like white supremacists and knuckle-dragging anti-evolutionists, but they never dominated the Republican Party. The Left argues that the Tea Party is far-right, but they want a smaller, less authoritarian government. They argue that George W. Bush and Ronald Reagan were far-right, but, for both, practical politics came before ideology. Consider the bi-partisan support their major legislative initiatives received in Congress. Can you imagine a Republican Speaker of the House with the idiotic, supercilious hollowness of Nancy Pelosi? – “We must pass this bill to find out what’s in it.” Can you imagine a Republican getting away with the lies told by Hillary Clinton about Benghazi, or the promises Mr. Obama made about being able to keep your doctor and your health plan if you prefer? The lies and exaggerations of Mr. Trump are childish and silly, but they do not undermine our democracy. Can you picture an ex-Republican President starting an advocacy group designed to undermine his successor? Can you imagine the media giving a pass to a Republican candidate for President who was counseled for twenty years by a bigot like the Reverend Jeremiah Wright?

The Left has long played identity politics for political advantage, creating envy and dispelling pluralism. Newspapers no longer disguise their preferences, nor do cable or network TV. But they and Mr. Obama have not operated in isolation. Talk radio preaches to the converted. Real news and fake news have proliferated, with no distinction made. C-SPAN was created thirty-eight years ago, with the intent to make government more open to the people. But there have been unintended consequences. Today it is available in 100 million homes, which means that when individual Senators and Representatives address their respective bodies they talk less to each other and more to those who elected them. In 1980, CNN became the first twenty-four-hour news station. Today, Wikipedia lists sixty-one such news stations. Partisanship has long been a reality, but its worst tendencies were accentuated by Mr. Obama.

But, back to the road not taken. If Democrats in Congress had tempered Mr. Obama’s most radical instincts, if they had guided him toward a more centrist path, they (and we) wouldn’t be in the pickle we are. (Or, if you prefer, have the opportunities we do!) Mr. Trump tapped into a backlash against an increasingly omnipotent federal government: ObamaCare belied its promise of choice. Excessive regulation impeded economic growth. For the first time in our history more small-businesses failed than started. Big banks got bigger, while small ones disappeared. Racism increased and wealth and income gaps widened. Democrats did not help their cause with the ethically-challenged Mrs. Clinton, but neither did Republicans with a political novice and wild card. The reasons another Democrat did not follow Mr. Obama were due to his abandonment of the American worker and the anti-liberal policies of his Administration.

President Clinton, who I found morally repugnant, moved the Democratic Party toward the center. Working with a Republican-led House, he signed the Welfare Reform Bill, which required welfare recipients to work; a Balanced Budget Agreement, which strengthened the Medicare Trust Fund; and the Landmark Education Investment Act, which doubled investment in education technology and increased funding to charter schools. Together, he and Congress created 20 more Empowerment Zones and 20 additional rural Enterprise Communities, which helped private sector job growth. Together, they encouraged NATO’s expansion into Eastern Europe. It was Mr. Clinton’s ethical lapses, not his policies, that hurt Mr. Gore’s prospects in 2000.

I wonder if Democrats today, like Robert Frost in 1920, ponder on how different things might have been had they, in 2008, taken the middle road? Frost was satisfied with his choice. Are Democrats with theirs? The fact that Mr. Obama has formed a community organizing project, a 501(c)3 called Organizing for Action, linked to George Soros and with a training manual to challenge his successor with constant protests – itself a first – suggests no lesson has been learned, at least not by him or his disciples.