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Good Friday Morning! It’s a busy week. The United States launched Tomahawk missiles into Syria overnight. The stated purpose is to degrade and damage Syria’s chemical weapons abilities. I’ll dig into the issues surrounding that move. I also cover the Russian active measures campaign against US citizens. But I start today with the nuclear option exercised by Republicans in the nomination process of Supreme Court nominee Neil Gorsuch. Links for your radar follow.
Gorsuch Cloture vote – SCOTUS is about to have 9 Justices again
Republicans voted yesterday to change Senate rules on Supreme Court nominees. Democrats had declared a filibuster on Supreme Court nominee Neil Gorsuch. But after having an incredible set of hearings, Republican Senators were united in supporting Gorsuch.
The rule change Senators voted for ends the filibuster option on Supreme Court nominees. Contrary to what Senator Schumer has argued extensively, there is no 60 vote requirement on Supreme Court nominees. 60 votes are only required when a party chooses to filibuster. Democrats decided to filibuster. They chose that option knowing, full well, that Republicans would change the rules. Strategically, this was a dumb decision by Democrats. It made little sense to filibuster a fully qualified nominee that united Republicans. Most court observers, myself included, assumed Schumer would pretend to filibuster, but secretly have his coalition vote with Republicans. Schumer chose poorly.
In a way, it’s poetic that the filibuster rule changed with Schumer in charge. Mitch McConnell is finishing what Schumer started. Filibustering Supreme Court nominees is a relatively new tactic in Senate politics. In modern history, using the filibuster for judicial nominees originated through Schumer. In 2001, Schumer led the filibuster fight against President Bush’s nominee Miguel Estrada. Schumer and Democrats considered Estrada “dangerous,” because Estrada is a Latino:
It was Nov. 7, 2001, when a staffer in Durbin’s office sent a memo summarizing a meeting with “representatives of various civil rights groups” to discuss Estrada’s nomination to the U.S. Court of Appeals for the D.C. Circuit.
The memo showed that one of the reasons Democrats wanted to block confirmation of the Honduras-born Estrada was because he is Latino.
“They also identified Miguel Estrada [D.C. Circuit] as especially dangerous, because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment,” Durbin’s staffer wrote.
Schumer’s use of the filibuster was novel at the time. Republicans threatened to use the filibuster several times but to no avail. Republicans retaliated under Obama by expanding the utilization of the filibuster. Harry Reid fired the first “nuclear” shot by invoking the “Reid Rule.” Senate Democrats changed the rules by eliminating the filibuster for lower-court nominees. Senator Mitch McConnell warned Reid at the time: “You’ll regret this, and you may regret this a lot sooner than you think,” McConnell said on the Senate floor.
Reid’s decision set the stage for Republicans on Thursday. It was only a matter of time before one party removed the rule for Supreme Court nominees. There was nothing honorable about standing up for Senate rules. If one party failed to change the rules, the other party would change it at a later date. There was no going back from Harry Reid’s rule changes.
I am for removing the filibuster requirement. I would agree with Randy Barnett’s analysis over at the legal blog Volokh Conspiracy:
[E]liminating the filibuster for Supreme Court nominations will alter the calculus on who to nominate to the Supreme Court. Prospective nominees will need only 51 votes. This means that the prospect of blocking a president’s nominee when the Senate is controlled by the same party would decline dramatically. It will be much harder to get 50 votes in such situations than to get 41.
If the likelihood of blocking a nominee declines, then the value of obstruction efforts will decline as well. If the value of obstruction declines, then we would expect the investment by outside groups in obstruction to decline as well (though such resources might be shifted to other things, such as influencing elections that would affect nominations). Thus, we might see less effort to, for instance, demonize candidates, dig up dirt from their pasts, or tar nominees as out of the mainstream.
If it’s harder to obstruct nominees, we might also see a willingness to consider nominees with less-traditional qualifications. That is, we might see presidents willing to nominate people who have done things other than work in the executive branch and sit on the federal bench. We might also see presidents more willing to nominate people who have done cause work or expressed controversial opinions.
One common complaint about the Supreme Court is the relative lack of diversity in the experience of the current justices. All but one served as federal appellate judges, and most worked in the executive branch or as prosecutors, but there is not a single justice with real criminal defense experience.
A large contingent of the legal world wants people on the Supreme Court with defense experience. I agree with Barnett; we’re far more likely to get a diversity of thought on the bench without the filibuster, than with it. Democrats continually exhorted the concept of “mainstream” candidates, which doesn’t make sense to the Supreme Court. The Court needs a diversity of thought to reach sound consensus. And not just diversity of political thought. The Court needs diversity in career experience along with political differences.
Gorsuch should be confirmed on Friday and sworn in either over the weekend or on Monday. In any event, the Supreme Court will have nine justices again; which should change the calculus of the Court on which cases to take in the coming months. I’ll end with some thoughts from Leon Wolf:
A few thoughts on how completely and thoroughly the Democrats got their butts kicked politically on the Garland/Gorsuch SCOTUS fight. I’m genuinely amazed at their failure to make this a successful political issue with anyone – their base, the middle – literally anyone.
One indication: less than an hour after McConnell went nuclear, MSNBC had moved on to other things. The opportunity to replace Scalia with a young liberal SHOULD HAVE been a big deal to their voters. Republican refusal to even hold hearings for Garland SHOULD HAVE been a huge motivator for their base.
The obvious explanation for the fact that it did not is the extent to which Trump has totally sucked the oxygen from all the rooms. One reason Dems dropped Garland as a political issue is that they couldn’t even make friendly media pay attention, because of Trump. Compared to the crazy s**t Trump says and does every single day, Garland is BORING. A ratings killer.
And it isn’t just the media— Dem politicians have likewise been unable to focus on the SCOTUS seat because of fixation on Trump. Democrats weren’t even able to articulate a unified reason to filibuster. Gorsuch. Was it “stolen seat”? Was it “right-wing extremist”? Was it “he refuses to answer questions”? Instead of any focused attack on Gorsuch, we got a lame hodgepodge of half-hearted bitching.
It’s almost like Dem senators just wanted to make the DNC fundraisers happy so they could get back to dealing with Trump. I don’t like Trump and I think his first real foreign policy test (Syria) will likely end in disaster. But his presence on the national stage allowed the GOP to strong arm a conservative Scalia replacement at zero political price. In the end, that’s not worth nothing.
The Post-Syrian-indecision world
You may have seen the devastating pictures out of Syria. They showed horrific scenes of men, women, and children dead in the streets from chemical attacks from Syrian Dictator Bashar al-Assad. It’s not the first time Assad has launched chemical weapons attacks against Syrian civilians. And unfortunately, it’s likely not the last.
Assad has felt no pressure for the last four years to stop his use of chemical weapons. Russia and Iran are helping entrench Assad further in Syria. When President Obama chose inaction in regards to Syria, in 2013, he did so to save his nuclear deal with Iran. But instead of Iran, it is Syria that will be the lasting legacy of President Obama. The ripple effects of the Syrian genocide continue to influence the world today.
Roughly 13.5 million Syrians require humanitarian assistance. Nearly 5 million Syrians have fled to other countries, spreading out across the Middle East and Europe. Unlike the United States, Europe has never been a melting pot. Nationalism and sovereignty have long ruled over various European people groups. As Syrian refugees have flooded into European countries, that has helped fuel a resurgence of nationalism across the European peninsula.
One of the great “What-if’s” of the 21st Century will be: What would have happened had the United States intervened in Syria and prevented the migration of millions of Syrians. The lack of Syrian refugees would have given less credence to movements like Brexit, Donald Trump, and French Presidential candidate Marine Le Pen.
But we don’t get to deal in “What-ifs.” Syria is a mess now; civilians are slaughtered every day. Assad lied to the US about removing all his chemical weapons. And, unfortunately, there are no easy answers on what to do in Syria. That isn’t merely a cliche. The country is partitioned into four different zones with competing factions. Beyond the base layer of Assad killing civilians and rebels, Syria hosts a significant contingent of ISIS and has become the main theater of a proxy war between US and Russian-supported forces. David French posts a similar warning in National Review Online: “Be Very Careful Before Beating the War Drums in Syria” (emphasis mine):
As we confront the Assad regime’s gas attack — which is just one of its countless violations of the law of war, and hardly its most deadly — we also have to confront this core reality: Our leading geopolitical rival — a traditional great power and a nuclear superpower — has quite obviously decided that the survival of a friendly regime in Damascus is a core national interest. It acted decisively while we dithered, and it has boots on the ground.
Thus, we now face a quandary. Retaliate against Syria so strongly that it truly punishes and weakens Assad, and you risk threatening Russia’s vital interests. Respond with a pinprick strike that Russia effectively “permits,” and you do nothing important. Assad has demonstrated that he cares little about his own casualties and may (like many other American enemies before him) actually feel emboldened after “surviving” an American strike.
Let me add one other thing. On this, the 100th anniversary of America’s entry into World War I, it’s worth noting that outside the ever-shrinking number of World War II veterans, this nation has no memory of what great-power conflict is like. Considering whether to strike a close Russian ally is not like considering whether to drone a terrorist camp in rural Pakistan or raid an al-Qaeda village in the Yemeni countryside. Even a single skirmish with a nation like Russia could inflict more American casualties in one day than, say, the last few years of combined military operations in Afghanistan, Iraq, and elsewhere.
That doesn’t mean we should operate from a posture of fear and timidity but rather from one of sobriety and wisdom. It also means that if we choose to escalate our military operations — to directly strike where Russia has planted its flag — then the American people need to have their voice heard, through their elected representatives. We should not stumble our way into conflict. We should not lash out in anger and rage (no matter how justified) without carefully considering our strategy.
I’ve written in the past about the US needing to take action in Syria. American inaction in Syria will define the Obama era. The more time passes, however, the harder it is for America to take action. It’s not that we lack the strength or power to act. We need the right strategy to operate without endangering ourselves and our allies in the region (specifically Israel and Iraq). We do not want to rush into a war in Syria based on an emotional response. We did this to an extent in Afghanistan and Iraq. And while both wars have their strategic merits, we need to have a sound basis for intervening with American blood and money.
If we decide we’ve met that bar, we need to authorize action through Congress. President Trump should not take unilateral action and ignore Congress. Syria should be a vote, just like Iraq and Afghanistan. A vote should happen for two reasons: 1) A vote helps unify the country around the idea it will intervene. Everyone has a buy-in. And 2) The Constitution requires President Trump to seek approval. Attorney Jack Goldsmith of LawFare has the right analysis in the NYT:
Of perhaps greater concern to Americans is the fact that an intervention in Syria would extend the president’s war powers under the Constitution beyond where they have gone before. An attack would necessarily be based on the president’s powers as commander in chief. Since the nation’s founding, presidents have possessed the authority to use military force abroad in the absence of Congressional authorization when acting in defense of the nation. Over time this self-defense rationale extended to permit the president to use force abroad to protect American persons and property there.
This was the basis, for example, for President Ronald Reagan’s use of force in Libya in 1986 (in response to the bombing of a Berlin disco) and President Bill Clinton’s use of force against Al Qaeda in Afghanistan and Sudan in 1998 (in response to two embassy bombings in East Africa). But this relatively uncontroversial rationale for presidential war unilateralism is unavailable in Syria, where the contemplated action is not aimed at protecting American persons or property.
If we are to act in Syria, we must have Congressional approval as a nation. President Trump and Congressional leaders need to present a plan of action and strategy. They must show that they understand the price, what American interests are at stake, and how they plan to accomplish a furtherance of American goals. War should not be taken lightly. A war that involves great powers should be taken even less lightly. We do not want to relearn the lessons of our great grandparents in the The Great War.
PS: After I had written this, President Trump decided to launch between 50-60 Tomahawk cruise missiles into Syria. The stated purpose is to damage and degrade the chemical weapons ability of the Assad regime. This strike does not change the points I made above. The use of missiles could make Assad think twice about using chemical weapons. Or he could just decide to use what he has before the US can strike again. Either way, this action deepens US involvement in Syria, a hotspot with Russia involved. It is a dangerous situation. Further, it’s not clear the strike was Constitutional. Congress continues to abrogate its role in this area of the Constitution.
The more we dig, the more Russian malfeasance we find in 2016
The explosive claims into Trump and Russia continue to grow and pull even more people into it. Now those allegations bring in former Obama administration official Susan Rice. Her inclusion in the story, along with Rep. Nunes stepping aside from the House investigation is more gasoline on an already flaming scandal. At this point I expect this story to rope in both the Trump and Obama administrations. Which is why I agree with Eli Lake’s current take, we need to investigate all allegations and blow open all the potential wrongdoing:
Let me guess. You read about Obama’s national security adviser who unmasked the names of Trump associates who were caught up in surveillance and are bewildered that the media is even covering this nothing-burger. It’s a diversion from the real story: how the president and his associates collaborated with a Russian influence operation against the U.S. election.
Or perhaps you are sick of hearing about Russia. After all, no one has presented any evidence that President Donald Trump or his team colluded with the Russians. Even James Clapper, President Barack Obama’s director of national intelligence, last month acknowledged he saw no such evidence. The Russia story is #fakenews, to borrow a hashtag of the moment. The real story is about the Obama administration’s politicization of state surveillance.
Let me suggest that both stories are something-burgers. Depending on where the facts lead, we will know whether Obama’s national security adviser, Susan Rice, was justified in unmasking the names of Trump transition officials or whether the media’s obsession with the government’s Russia investigation was warranted.
Concern about unmasking is not a smokescreen, a nothing-burger or a diversionary tactic. It’s a real story. So is how Russia helped Trump win the White House. Don’t trust anyone who says “There’s nothing to see here.”
We need to investigate everything in this story; from the potential of political unmasking to alleged collusion with Russians. Russian malfeasance must be investigated, stopped, and thwarted domestically and abroad. We need these investigations for a very simple reason: Vladimir Putin has Russian intelligence services engaged in an “active measures” campaign against American citizens and institutions. The Kremlin has the goal of bringing down American order in the world. We must reassert ourselves and relegate Vladimir to the despot dustbin of history.
While you may have heard the stories I mentioned above, what you likely missed is the testimony of national security experts before the Senate Select Committee on Intelligence. LawFare edited 5 hours of testimony down to a 2-hour podcast, pulling the major highlights from the first public hearing. I highly recommend the podcast to everyone. I plan to listen to it a few more times.
I had two broad takeaways from the hearing. First, we haven’t even begun to scratch the depths of information the Russians have stolen from us. One of the experts estimated the Russians have only leaked about 1% of the overall data they’ve stolen from us through hacks and other methods. Republicans should expect to have their emails and documents leaked via Wikileaks or some other forum to damage the United States. Putin does not care who he harms to bring down the United States.
Second, Americans are severely underestimating the impact and depth of Russian misinformation on their daily lives. The expert panel testified they had seen ample evidence that Russians were actively engaged in an active measures campaign in all divisive areas of American life. Propaganda was pumped into every political debate: Black Lives Matter, Bernie Sanders and Donald Trump, The Republican Primary (the panel testified that Sen. Marco Rubio was a target of Russian misinformation), and the General Election. The Russians targeted any issue or topic where they could gain an edge and drive Americans apart.
The media they most used were Facebook and Twitter. If you were on social media and noticed some fake news sites you’d never seen before until the election, and then noticed they all vanished, you were witnessing a Russian active measures campaign. The Kremlin employed social media bots to mask themselves as Trump and Sanders supporters to flood social media with Russian propaganda. Their goal was to destroy trust in American institutions. A large number of the inflammatory posts and comments you would see were Russian accounts.
The far more troubling aspect is this: The playbook on how to hurt American society and get Americans to support anti-American positions is to flood their social media networks with your message. The playbook to disrupt and crumble American culture is out there now. The Russians will not be the only ones to use this. We will see the Chinese, North Koreans, Iranians, and others use websites and social media to drive their agendas. The financial and political costs for engaging in active measures against America are low and the rewards high.
After Assad employed chemical weapons attacks against his people, social media campaigns immediately launched saying it was a #SyriaHoax. The hashtag campaign was started and pushed by Russian bot networks, retweeted and shared by real accounts, and finally picked up by the mainstream media. Now people are debating whether or not the attack even happened. All these while pictures of dead Syrian children, killed by Sarin gas, are reported by real journalists. The #SyriaHoax campaign is an Active Measures misinformation campaign by the Kremlin to move blame away from Putin and Assad.
This is only one example. There are countless other examples. Fighting active measures means ensuring you have good news sources with verifiable evidence. Active Measures depends on rumors and propaganda to make its point. There are no checks on the Internet, which is a good thing, but also makes it a dangerous place if you do not have truth. If you don’t believe me, listen to the testimony yourself. Listen to how Russians targeted specific subsets of Americans with Russian propaganda.
We are in another Cold War with Russia. They have engaged us repeatedly through cyber-warfare, active measures, and other espionage tactics. The United States must choke out this threat. We have the tools, economy, and military power to reduce Putin to a third world dictator. We need to reduce his oil profits to near zero, strengthen NATO allies, cut off his access to foreign capital, and surround Russia and cut them off from the world. Modern Russia is far weaker than the Soviet Union. The United States is the preeminent superpower in the world. It’s time we started acting like it.
Links for your radar
Benjamin Netanyahu will never be popular in America’s major newsrooms. Or among most of the think-tankers who set the tone and parameters of foreign-policy debate. His name is a curse on college campuses. So it’s worth asking whose vision of the Middle East has held up better under the press of recent events.
His or theirs?
The question comes to mind as Western governments confront this week’s chemical atrocity in Syria, and as footage of children’s bodies convulsing in agony once more unsettles the world’s conscience. Even President Trump, who generally lacks a moral language, was moved, though whether he will act remains to be seen.
His predecessor had a rich moral vocabulary and a coterie of award-winning moralizers like Samantha Power on staff. But President Obama refused to act when Bashar Assad crossed his chemical red line. He wanted to extricate Washington from the region, and he saw a nuclear deal with Mr. Assad’s Iranian patrons as the exit ramp.
On Susan Rice, the Issue Is Abuse of Power, Not Criminality – National Review Online
If the new reporting is to be believed, Rice orchestrated the unmasking of communications involving the Democrats’ political rivals — the Trump campaign. Her current stress on the lawfulness of the intelligence collection is a straw man. No credible commentator is claiming (based on what we currently know) that the intelligence-collection activities of the FBI, CIA, and NSA were illegal. As I explained yesterday in my aforementioned column, the surveillance and collection operations were undertaken pursuant to statute (the Foreign Intelligence Surveillance Act) as well as to the president’s constitutional authority to collect foreign intelligence (the exercise of which authority is laid out in a longstanding executive order, EO 12,333).
The allegation against Rice and the Obama administration is that the unmasking of Trump-campaign and transition officials appears — cumulatively, and probably in many specific instances of it — to have run afoul of minimization instructions. These instructions are proposed by the Justice Department and ordered by the FISA court.
But the technical legality of any particular instance of unmasking is beside the point. The question is abuse of power. Here, it is critical to bear in mind something that can easily be forgotten. The sole purpose of foreign intelligence collection is to understand the actions and intentions of foreign powers and their operatives. If the government’s purpose is to understand the actions and intentions of American citizens, there are two proper ways to go about that: (a) conduct a criminal investigation in which the American citizens can be targeted for court-authorized surveillance based on probable cause of a crime, or (b) conduct a FISA investigation in which the American citizens can be targeted for court-authorized surveillance based on probable cause that they are acting as agents of a foreign power. If neither of those two alternatives is chosen, then the American citizens are not supposed to be the subject of the intelligence collection effort — they are supposed to be protected.
100 Years Ago Today: America Enters the Great War – John R. Schindler
A century ago today, the United States Congress, acting on the request of President Woodrow Wilson, declared war on Imperial Germany. Four days before, on the evening of April 2, the president addressed a joint session of Congress, asking for war. The subsequent vote was hardly close, with the House voting 373 to 50 in favor, while the Senate’s tally of 82 to six was even more lopsided.
This was the most important foreign policy decision made by Washington in the entire 20th century, since by entering the First World War—called the Great War at the time—the United States determined the outcome of that momentous and horrible conflict and thereby set Europe on a course for an even more terrible war to come.
None of that could be known at the time, of course. Reluctantly, President Wilson finally decided to enter the war—after successfully running for reelection in 1916 on a peace platform—when Berlin’s conduct became intolerable, leading to American deaths. Like the college professor he was, Wilson hoped for peace and considered the Great War to be a by-product of Europe’s decrepit and illiberal empires, to which the president and his fellow American progressives felt morally superior.
Orwell and Contraception – First Things
In 1954, four years after George Orwell’s premature death from tuberculosis, his friend Christopher Hollis recalled: “One of the most interesting and deepest of Orwell’s beliefs was his belief in the profound evil of contraception.” Near the end of his life, Orwell expressed the view that even the Catholic teaching on “the safe period” was too lax. He thought, according to Hollis, “that people who desired intercourse without desiring children were guilty of a profound lack of faith in life, and that a generation which slipped into the way of thinking such a desire legitimate was inevitably damned.”
Orwell was an awkward character during his lifetime, too independent to fit into anybody else’s ideology. In death, he has proved slightly easier to manipulate, because commentators can simply ignore his more inconvenient opinions. But though Orwell’s antipathy to birth control has been largely overlooked, it is far from incidental to his worldview.
Back in the 90s, in 1996, when the Internet was barely a few years old, two cyber-espionage groups dominated the cyber-space: Moonlight Maze and the Equation Group.
Their operations shocked the world and made people realize that hackers are also capable of stealing state secrets, not just money from bank accounts. That’s when the term cyber-warfare became reality and not just the plot B-rated Hollywood movies.
While details collected about the Equation Group across the years have allowed researchers to issue theories on its connections with the US National Security Agency, very few details were collected about Moonlight Maze, the first ever APT.
Signs of an intensifying Moscow-led information campaign have the Lithuanian government worried that Russia is laying the groundwork for “kinetic operations” — a euphemism for combat — similar to its recent actions in Crimea and eastern Ukraine.
Lithuania’s defense minister and military communications officials told The Guardian that they were “taking very seriously” Russia-organized propaganda efforts to undermine stability in the Baltics, which consist of Lithuania and its northern neighbors, Latvia and Estonia.
“Russia is a threat,” Lithuanian Defense Minister Raimundas Karoblis told The Guardian. “They are saying our capital Vilnius should not belong to Lithuania because between the first and second world wars it was occupied by Poland.”
Satire piece of the week
WASHINGTON — A research study into behavior on social media has found a sharp decline in the sharing of images regarding military service as a prerequisite for being President of the United States, sources confirmed today.
“There’s a correlation here; the metrics clearly show it,” said Dr. Hector Navarro, a data scientist and social network analyst supervising the RAND Corporation research team. “The curve plummets after the first third of November 2016.”
The memes, previously widespread on Facebook, Twitter, and elsewhere, often asked readers of military, veteran, and conservative-themed pages if they believed that serving in the armed forces should be a requirement for the nation’s highest office. The images have all but disappeared since the close of last year’s election, researchers said.
So far, researchers have struggled to understand the reason behind the downward trend.
Thanks for reading!