The Outsider Perspective brought to you by The Beltway Outsiders.
Good Friday Morning! It’s a been a busy news week since I last wrote. We’ve had important testimony in DC over the ties between the Russians and Trump campaign, the beginning of the Gorsuch Supreme Court hearings, new dissents over Trump’s immigration EO, and the fractious debate of the Obamacare replacement bill the AHCA. As one DC reporter this week put it, it feels like we’ve already lived through 7 years of an administration.
It certainly feels like 7 years watching Republicans try to pass health care reform. At the time I’m writing this, Trump has announced the end of negotiations. Either the House Freedom Caucus accepts the AHCA, or Trump will let Obamacare continue. The vote is set for Friday. I warned in a column this is the choice Republicans would be given. And now they have their choice: the AHCA or Obamacare. I’ll save more thoughts until next week, after the vote. Today I begin with the tragic terrorist attack London, outside the Parliment.
Another ISIS soft target terrorist attack on European soil
British Police have now identified the terrorist as 52-year-old Khalid Masood. The attack happened outside the Parliment building, where he killed four people, including a police officer and an American, and injured around 40 others. ISIS has claimed Masood was one of their fighters, although at this stage it appears to be an ISIS-inspired attack and not an ISIS-directed assault.
Which brings up a point that the media should stop reporting: attacks like in London, the Nice, France, Orlando, Florida, and many others, are often described as “Lone Wolf” attacks. People claim the attackers behaved with no direction, only inspiration, from ISIS. And while these attacks often do involve a single attacker, it is wrong to say these are lone wolf attackers. Behind these assaults, support and training from ISIS affiliates are often found hiding in the background. Some experts have even called this support virtual ISIS coaches:
“They are virtual coaches who are providing guidance and encouragement throughout the process — from radicalization to recruitment into a specific plot,” said Nathaniel Barr, a terrorism analyst at Valens Global, who along with Daveed Gartenstein-Ross of the Foundation for Defense of Democracies in Washington wrote one of the first articles discussing the virtual plotters.
“If you look at the communications between the attackers and the virtual plotters, you will see that there is a direct line of communication to the point where they are egging them on minutes, even seconds, before the individual carries out an attack.”
Focusing on the jihadists in these attacks misses the support network a terrorist builds to perform a terrorist attack:
Former FBI agent Ali Soufan (now of the Soufan Group) finds the term misleading for another reason. Since so many of the reputed “lone wolves” are “individuals with well-known patterns of violent extremist or criminal behavior and connections” Soufan believes we should instead call them “known wolves.” But not everyone designated a “lone wolf” is known to law enforcement. Some fall into a category Anne Speckhard calls “clean-skin terrorists” whose lack of criminal records make them hard to detect. “The lone-wolf fallacy,” according to Paul Sperry, is the failure to account for the killers’ family and community contacts.
A surprising critique comes in the form of a Reuters study on the phenomenon, under the headline: “Wolf Dens, Not Lone Wolves, the Norm in U.S. Islamic State Plots.” “The lone-wolf fallacy,” as Paul Sperry calls it, is the failure to account for the killers’ contacts in “family, local mosques and the larger Muslim community.”
It’s still very early in the investigation of the London terrorist attacks. However, police have already conducted raids that arrested eight people in connection with the London tragedy. The arrests suggest Khalid Masood had a wider circle of support, despite committing murder and assault alone. The broader circle of support and virtual coaching he may have received would not make this a lone wolf jihadist attack. All previous knowledge we have on these jihadist-style attacks suggest it was a planned, intentional, strike in the UK.
Soft-target terrorism is the new norm. The big, 9/11-like attacks, while a threat, are not the primary object of modern terrorist groups. Sowing fear with smaller attacks at soft targets is the new norm. Bombing targets in the Middle East won’t stop soft target terrorism abroad. We have to strengthen our intelligence services, so we have a better chance of preventing domestic terrorism.
Neil Gorsuch, Originalism, and Trump’s immigration EO
Supreme Court nominee Neil Gorsuch began testifying before the Senate Judiciary Committee this week as part of his nomination process to the Supreme Court. The nomination hearings have only revealed two things: 1) Gorsuch will pass the nomination process and sit on the Supreme Court, and 2) Senator Al Franken doesn’t understand how the law works. That’s it in a nutshell.
One of the more interesting threads out of the hearing was Sen. Diane Feinstein’s attempts to attack Gorsuch on originalism. During the hearing, Feinstein said:
You are a self-professed originalist in your approach to constitutional interpretation. For example, you wrote, and I quote, “Judges should instead strive, if humanly and so imperfectly to imply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be.” Now, do you agree with Justice Scalia’s statements that originalism means that there is no protection for women or gays and lesbians under the equal-protection law because this was not the intent or the understanding of those who drafted the 14th Amendment in 1868?
Her argument is a strawman attack on Originalism. Feinstein purposely misquotes and maligns Scalia’s argument to fit her plan. Scalia’s problem had nothing to do with equal protection. It had to do with “special treatment” under the law. The cases Scalia had problems with were when the Court would single out groups of people for special treatment, instead of applying the law equally. As David French points out in National Review:
First, Scalia’s consistent position wasn’t that the equal-protection clause offered “no protection” to women or gays, but rather that it did not offer special or extraordinary protection. … And second, when discussing “originalism,” for the vast majority of originalists, the key isn’t “original intent” but rather a concept called “original public meaning.” … In other words, when the equal-protection clause was enacted, what were the words understood to mean? Were they understood to sweep away, say, restrictions on women in combat? Were they understood to mean that legislatures couldn’t enact laws that prohibit certain sexual practices? Drafters create a text, and that text has an original, understood meaning. That, in a nutshell is what “originalism” means.
French is right. The point of originalism is to look at the text of the law and interpret that text. What you find in modern liberal legal circles is the idea that intent can override the text or implementation of a statute. Originalists look to the wording of law because elected representatives wrote the statute. Judges are not elected officials or subject to the “consent of the governed.” Originalism rejects the idea of “legislating from the bench” because it’s an improper role for judges. Originalists don’t believe judges should infer words or meaning into a text. It’s the job of elected officials to create new statutes and provide meaning to the text. Intent should only be used in the very rare circumstances when a law is vague or unclear. Gorsuch explained this beautifully in his response to Feinstein:
It would be a mistake to suggest that originalism turns on the secret intentions of the drafters of the language of the law. [The] point of originalism, textualism, whatever label you want to put on it — what a good judge always strives to do and what we all do — is [to] understand what the words on the page mean, not import words that come from us. . . . It matters not that some of the drafters of the 14th Amendment were racists, because they were, or sexists, because they were. The law they drafted promises equal protection of the laws. That’s what they wrote. And those — the original meaning of those words, John Marshall Harlan captured in his dissent in [Plessy v. Ferguson], that equal protection of the laws does not mean separate in advancing one particular race or gender. It means equal.
Gorsuch is right. His argument brings me to the latest fight in the 9th Circuit over Trump’s immigration executive order. It involves originalism. The 9th Circuit denied a request by the Government to rehear the case en banc. For the non-lawyers, that means the government asked for a rehearing by the entire 9th Circuit, all the judges, instead of a panel. The 9th Circuit denied this request. But, several judges on the 9th Circuit wrote a rare set of dissents. In the dissents, they argue how the 9th Circuit is only looking at the intent of the EO and not the text. In other words, they are using an originalist argument to show the flaws in the majority’s reasoning.
The dissent’s main point is one I’ve written about several times: you cannot divine the intent of Trump from the EO. The dissents argue you have to focus on the text of the EO, not cherry pick media statements:
This is folly. Candidates say many things on the campaign trail; they are often contradictory or inflammatory. No shortage of dark purpose can be found by sifting through the daily promises of a drowning candidate, when in truth the poor shlub’s only intention is to get elected. No Supreme Court case—indeed no case anywhere that I am aware of—sweeps so widely in probing politicians for unconstitutional motives. And why stop with the campaign? Personal histories, public and private, can become a scavenger hunt for statements that a clever lawyer can characterize as proof of a -phobia or an -ism, with the prefix depending on the constitutional challenge of the day.
This path is strewn with danger. It will chill campaign speech, despite the fact that our most basic free speech principles have their “fullest and most urgent application precisely to the conduct of campaigns for political office.”
In perhaps the most damning footnote you’ll find, the dissent noted politicians are known to lie on the campaign trail. Politicians have to gin up support for their campaign:
There is an anecdote, doubtless apocryphal, about Franklin Roosevelt during a whistlestop tour. He had two speeches that took opposite positions on a hot-button issue of the day. When the train stopped at a town that favored the issue, he would give his “pro” speech. And in towns that opposed the issue he’d give his “con” speech. One day he approached a town that his advisors told him was divided evenly between the pros and cons. FDR’s advisers worried about how he’d handle the situation, but FDR was undaunted. He gave a speech and when he was done the pros in the audience believed he was in their corner and the cons were convinced he agreed with them. And that, friends, is the nature of electoral politics.
The point is this: for every single media clip you can find of Trump and his surrogates calling for a “Muslim ban,” you can get another clip of them saying the opposite. Further, you can’t use any of the media clips to prove Trump’s EO is the so-called “Muslim ban.” His comments are all over the map. Further, the order itself doesn’t achieve a ban on Muslims at all. It’s debatable whether the prohibition accomplishes any of the security measures it claims to deliver.
An originalist, looking at Trump’s EO, would ignore the media clips and ask a straightforward question: Is the text of this executive order constitutional? If the answer is no, then the next question: is this rule implemented in a discriminatory manner? If the answer is no, then the inquiry is principally finished.
Liberal non-originalists want to infer words and intent to a statute that aren’t there; which is how the 9th Circuit reached its decision. The 9th Circuit’s ruling, as it stands now, is a gross overreach of judicial power. It presumes the authority to assume intent from conflicting media clips. Their decision could influence every Presidential order. For instance, one hypothetical Law Prof. Josh Blackman involves war powers. Let’s say Trump decides to send troops to a place like Yemen. Under the rules of the 9th Circuit, a liberal could sue and say Trump is engaging in a war against Muslims because of an anti-Muslim animus. The Judge could say: “I agree, there appears to be intent from a media interview I saw. Therefore, the President can’t send troops.”
That is a massive overreach of judicial power. Judges do not have that kind of power. Judicial power grabs are why we need more judges like Neil Gorsuch who focus on the text. Originalism is an ideological check on judicial power. We need that check no matter who is President.
A week of bombshells on the Trump/Russia front
This was an unusual week on the Trump/Russia news front. On the one hand, we learned big things from the FBI and Congress on the investigations. But we also didn’t learn anything new. I’ll explain.
There are two statements you need to focus on: 1) FBI Director James Comey’s testimony before Congress, and 2) House Intelligence Committee Chairman Devin Nunes’s press conference. Comey confirmed what had already leaked: the FBI has an active investigation into the Trump team and the Russians. He reiterated that there were no “wiretaps” on Trump or Trump Tower. And he said the investigation had been ongoing since the spring of 2016.
The most significant news from Comey’s testimony was that he confirmed much of what we already know. Though, in retrospect, it is wild to hear the FBI Director testify under oath before Congress on an investigation into the sitting US President. Note, however, the narrowness of Comey’s answers: he only denies the specific allegations surrounding Trump’s tweets. That’s the easy question in this story. The bigger issue: were there wiretaps and intelligence collection on Trump and his associates? We’ve known for some time that the answer to this was “yes.”
Comey refused to give details on this point. We are aware, for instance, that Michael Flynn’s communications with the Russians were swept up in routine surveillance of the Russian Ambassador. The end question is: how far did the incidental surveillance go? We don’t know the answer to that definitively. And we don’t know how much the data is in the FBI or NSA’s hands.
Enter House Intelligence Chairman Devin Nunes. He gave an incredibly vague press conference where he seemed to allege two things: 1) The incidental collection was legal and potentially included Trump, and 2) The names of Trump transition officials were illegally “unmasked” for political reasons. When Americans are swept up in routine surveillance of foreign targets, the NSA and CIA protect the identities and information of the Americans. The reason being is that American citizens have rights and their privacy is protected by law. The NSA scrubs that intelligence to remove private and protected data. So when that information is “unmasked,” it violates that American’s Constitutional rights.
Where do we sit now? Nothing Nunes said contradicts Comey. We don’t know if names were illegally unmasked. We don’t have any evidence of collusion with the Russians. And there’s no evidence anything illegal occurred on the part of the intelligence community. In short, the testimony and press conferences we have now basically leave us where we’ve been for weeks.
That leaves two strange reports from CNN and FoxNews. I’m addressing both since I’ve seen them go viral. The CNN report claims: “US officials: Info suggests Trump associates may have coordinated with Russians.” But when you dig into the story itself, the evidence they have leaves much to be desired:
One law enforcement official said the information in hand suggests “people connected to the campaign were in contact and it appeared they were giving the thumbs up to release information when it was ready.” But other U.S. officials who spoke to CNN say it’s premature to draw that inference from the information gathered so far since it’s largely circumstantial.
The FBI cannot yet prove that collusion took place, but the information suggesting collusion is now a large focus of the investigation, the officials said.
The FBI has already been investigating four former Trump campaign associates — Michael Flynn, Paul Manafort, Roger Stone and Carter Page — for contacts with Russians known to US intelligence. All four have denied improper contacts and CNN has not confirmed any of them are the subjects of the information the FBI is reviewing.
They effectively have one source, who claims a lot, but whose information can’t be verified. Which means CNN really knows little more than what I’ve already gone through already. The entire CNN story smacks of sensationalist reporting with little evidence. I remain wary of its claims. I remain wary after several intelligence officials have stated, on the record, they have no proof of collusion.
The FoxNews report swings in the opposite direction. It claims: “Potential ‘smoking gun’ showing Obama administration spied on Trump team, source says.” But again, when you dig into the story, you find far less evidence. The FoxNews report relies on evidence that hasn’t been vetted yet:
The intelligence is said to leave no doubt the Obama administration, in its closing days, was using the cover of legitimate surveillance on foreign targets to spy on President-elect Trump, according to sources. The key to that conclusion is the unmasking of selected U.S. persons whose names appeared in the intelligence, the sources said, adding that the paper trail leaves no other plausible purpose for the unmasking other than to damage the incoming Trump administration.
The NSA document production is expected to produce more intelligence than Nunes has so far seen or described – including what one source described as a potential “smoking gun” establishing the spying. Some time will be needed to properly assess the materials, with the likely result being that congressional investigators and attorneys won’t have a solid handle on the contents of the documents – and their implications – until next week.
Because Nunes’s intelligence came from multiple sources during a span of several weeks, and he has not shared the actual materials with his committee colleagues, he will be the only member of the panel in a position to know whether the NSA has turned over some or all of the intelligence he is citing. However, Fox News was told Intelligence Committee Ranking Member Rep. Adam Schiff, D-Calif., had been briefed on the basic contents of the intelligence described by Nunes.
Fox also has a single source who knows a summary of pre-vetted and non-investigated evidence. No attorneys or investigators have pulled the information together yet, nor has Nunes even seen the information. If anything this story sheds a very poor light on Nunes, who is apparently rushing to give press conferences and reports to the White House with no real knowledge of what the NSA will be turning over. And while Fox is saying this, CNN is saying the exact opposite (Schiff and Nunes seem to be trying to outduel each other for headlines).
Again, I’d remain skeptical of any reports like this until we have the evidence before a Congressional committee. But because of the sensationalist headlines, the reports are traveling at the speed of light.
A recap of this week’s events would read: We learned a lot and we learned nothing. The “big” revelations that we supposedly received this week lack evidence. Which leaves us back where we started: what is smoke and what is fire? We don’t know.
I will say, however, I think we will receive more information over the next few weeks. Before the big reports started dropping, one hacker/counter intelligence guy I follow, who tends to be ahead of the news, said: “#BuckleUp It’s gonna be a rough few weeks America. And that’s about all I’m gonna say on the matter, aside from… keep the bubbly on ice.” John Schindler, a former NSA analyst, appeared to agree on that point too. And as if on cue, the major stories started dropping. The NSA is poised to turn over its evidence to Congress soon. I suspect we may be on the precipice of a major scandal.
Buckle up and get ready.
Links you should read
The best column I’ve read all year: The nationalist wave in the U.S. and Europe that liberals still don’t get – George Friedman, author of “The Next 100 Years” and “Flashpoints: The Emerging Crisis in Europe.”
Geert Wilders, the nationalist candidate for prime minister of the Netherlands, lost that country’s election last week. This has brought comfort to those who opposed him and his views on immigration and immigrants. It is odd that they should be comforted. A decade ago, it would have been difficult to imagine that someone of Wilders’s views would have won any seats in parliament. The fact that his party is now the second-largest in the Netherlands, rather than an irrelevancy, should be a mark of how greatly both the Netherlands and Euro-American civilization have changed — and an indication that this change is not temporary.
Indeed, the second-place showing of the nationalists in the Netherlands is accompanied by an interesting phenomenon. The center-right has shifted a number of its positions toward the nationalists. As we approach the French and German elections, a similar process is under way. While the right may lose elections, its positions are being adopted, at least in part, by centrist parties.
Russian Lawyer Thrown From Window Was a Witness for the U.S. Government – The Daily Beast
So, now we come to the case of Nikolai Gorokhov, a lawyer entangled in the Prevezon case as a verification witness for the Justice Department who can expertly identify and authenticate Russian financial documents. Gorokhov had intimate knowledge of the literature connected with the Magnitsky affair because he has represented the murdered lawyer’s justice-seeking wife and mother for six years.
On Wednesday, he was due to testify in the Moscow City Appeals Court to argue against another court’s refusal to re-investigate the conspiracy that Magnitsky uncovered, based on new evidence. That evidence suggested a former investigative head of the Russian Interior Ministry was fabricating or revising old files related to the case, and doing so at the behest of the Klyuev Group. But on Tuesday, the 53-year-old Gorokhov plummeted from the fourth floor of his apartment building in Moscow. He was trying to move a bathtub to an apartment at the top of the building, according to the Russian press.
Good Counterterrorism News Lurks Behind London Atrocity – John R. Schindler
Self-starting killers without real ties to international terror groups, particularly ones who rely on do-it-yourself techniques with easily obtainable weapons like cars and knives, are difficult for even the most competent spies and cops to stop before they kill. Across the West, Khalid Masoods are proliferating—angry, unbalanced men who find in Salafi jihadism the salve for their resentments and a much-needed justification for the violence they glorify.
There is good news here. Only a dozen years ago, British jihadists pulled off a complex attack in the heart of London, the notorious 7/7 operation, which murdered 52 innocents—and transformed British counterterrorism. Today it would be exceptionally difficult for terrorists to mount anything of that intricacy or lethality. Instead they are reduced to DIY attacks which kill a only a handful of people. This war is far from over, yet this is progress of an important sort.
U.S.: Device Ban on Middle Eastern Flights Hints at Credible Terrorist Threat – Strafor, a private global intelligence firm
Is there an active terrorist threat against commercial flights traveling from the Middle East? A dramatic and specific ban on electronic devices affecting over a dozen Middle Eastern airports with flights to the United States and the United Kingdom would seem to suggest so. The ban, requested by the U.S. government, impacts flights from international airports in Jordan, Kuwait, Egypt, Turkey, Saudi Arabia, Morocco, Qatar and the United Arab Emirates. A confidential U.S. Transportation Security Administration email apparently gave airlines 96 hours to enforce the restrictions, which make exceptions for phones and medical devices. Larger devices such as laptops, DVD players, tablets and cameras must now be checked.
It has been called A People’s Tragedy and an Imperial Apocalypse. It has been analyzed in many languages, from the philosophical level down to the material. But one thing is certain — the Russian Revolutions (yes, plural) and Civil War created the world we know today. If WWI broke the old world of the nineteenth century, the cataclysm that engulfed the former Russian Empire shaped the twentieth. So far-reaching were its consequences that a once “backward” and “anachronistic” medieval empire came to challenge and threaten the entire world, doing so not with religious fanaticism but with the most totalizing, brutal, and far-reaching utopian vision yet brought to life.
Restarting the Fight Against Terror-Funding Charities – The Weekly Standard
Busting terrorist charities here in the United States was a low priority for the last eight years under Barack Obama. It’s time for the Trump administration to instruct the bureaucracy to get back into this important fight.
In the aftermath of the 9/11 attacks, the George W. Bush administration conducted multiple high-profile takedowns of terrorist charities. Federal authorities in 2001 targeted the Holy Land Foundation for funneling more than $12 million to the Palestinian terrorist group Hamas. The following year, Treasury took down the Benevolence International Foundation in Illinois for “providing material support to organizations, including al-Qaida.” The Global Relief Foundation, also shuttered in 2002, “provided assistance to Usama Bin Ladin, the al-Qaida Network, and other known terrorist groups.” Another charity that supported al Qaeda and Hamas, the Islamic Africa Relief Agency, met a similar fate in 2004, and its president was sentenced to 63 months in prison.
For the last eight years, however, the Obama administration dismantled just one terror-funding charity operating inside the United States (a Tamil Tigers front in 2009). It’s unclear what kind of risks, if any, this lapse posed to the homeland or our troops overseas. But it is nevertheless disconcerting, given the sustained concerns about the threat of terrorism worldwide.
[T]he bigger problem is the risk of “normalization,” to use the language of Trump’s opposition. Leaking the names of individuals currently being investigated by the FBI and the intelligence community is not unprecedented, but it’s always dangerous. It’s unfair to the targets of the probe, whose reputations are tarnished before the government brings a case in court against them, if it ever does. Also, counter-intelligence investigations can change dramatically as new information comes in; the target today may not be the target when it’s wrapped up.
In this sense, the resistance is fashioning a rod for its back. Democrats rightly howled when it was leaked that the FBI had wanted to investigate the Clinton Foundation but was stymied by the Justice Department in the run-up to the election. Trump will now have access to all kinds of damaging information on Democratic politicians. What is to stop him from selectively leaking monitored communications against the resistance?
Ideally, the rest of Washington would stop him. We don’t do that kind of thing in America. This is what police states do. But these norms are only effective if they are observed with consistency. Unfortunately, the resistance is so eager to pre-empt Trump’s presidency that they have just licensed the very tactics they fear Trump himself will use against them.
Two years ago, author John Scalzi signed a $3.4 million deal with leading science fiction and fantasy publisher Tor Books to publish 13 novels over the course of the decade. The novel that kicks off this new contract, The Collapsing Empire, is just now hitting bookstores. For Scalzi, there’s a lot riding on this book: it’s the start of a 10-year collaboration between him and his publisher, at a time when the publishing and bookselling industries have been undergoing significant changes.
Set in a brand-new universe, the novel is about an interstellar human empire that faces a major upheaval when its faster-than-light transportation routes begin to vanish. Scalzi has been a rising star in the science fiction world over the past decade, bolstered by a popular body of work and a legion of devoted fans he built through his blog, Whatever. His latest book is a thoughtful, exciting read, and it’s a good indication that his career will continue to rise.
Satire piece of the week
NEW YORK—Law enforcement officials confirmed Friday that four more copy editors were killed this week amid ongoing violence between two rival gangs divided by their loyalties to the The Associated Press Stylebook and The Chicago Manual Of Style. “At this time we have reason to believe the killings were gang-related and carried out by adherents of both the AP and Chicago styles, part of a vicious, bloody feud to establish control over the grammar and usage guidelines governing American English,” said FBI spokesman Paul Holstein, showing reporters graffiti tags in which the word “anti-social” had been corrected to read “antisocial.” “The deadly territory dispute between these two organizations, as well as the notorious MLA Handbook gang, has claimed the lives of more than 63 publishing professionals this year alone.” Officials also stated that an innocent 35-year-old passerby who found himself caught up in a long-winded dispute over use of the serial, or Oxford, comma had died of a self-inflicted gunshot wound.
Thanks for reading!