The Ninth Circuit issued a ruling on Trump’ immigration EO, maintaining a nationwide suspension of the order.
While I think that Trump’s ban was poorly reasoned and executed with the skill of a brass band falling down a flight of stairs, I’m a bit bothered by this decision for reasons David French gets into here:
Finally, and crucially, the court made a statement near the end of its opinion that is deeply, deeply troubling. In discussing the evidence before the court, the panel says this:
The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.
Putting aside, for the moment, the administration’s inexplicable failure to include in the executive order or the record the extensive documentation and evidence demonstrating the threat of jihad from the seven identified countries (including terror attacks in the U.S., plots in the U.S., and a record of plots and attacks abroad), whether an attack has been completed in this country is not the standard for implementing heightened security measures. The president doesn’t have to wait for completed attacks to protect the U.S. from dangerous immigrants. He can see the deteriorating security situation on the ground, evaluate the intentions and capabilities of the enemy, and then act before the enemy can strike. Indeed, that’s the goal of national defense — to prevent attacks, not respond after the carnage.
I’ve been hearing versions of this argument over and over again. “No refugee has launched a terror attack against the US!” “No one from those seven countries has attacked the US soil!” “Since 9/11, more people have been killed by Right Wing terrorism than Jihadists!” For a while, I was swayed by these arguments. But I’ve come to realize that they are complete horse manure.
First, as French notes, the job of the federal government is to prevent attacks, not close the barn door after the horse has been stolen. If they have credible intelligence of an attack or a danger, they are supposed to act (within Constitutional limits).
Second, terrorist attacks are, by their very nature, stochastic. They are thankfully few and when you try to do any analysis of them, you are immediately swallowed by small number statistics. This is obvious when you think about it. Any sentence that starts with, “well, excluding 9/11 …” is just silly. 9/11 was the biggest terrorist attack in American history. It completely dominates the discussion. Our entire anti-terrorism policy is designed around preventing another 9/11. You simply can not exclude it from consideration and act like you’re clever for doing so.
It would take only one successful Jihadist attack to upset those numbers (indeed, the numbers changed dramatically after San Bernardino and Orlando). It would take only one attack by a refugee from, say, Somalia, to make those arguments completely moot. When your argument can be rendered useless by a singular event, it’s a terrible argument.
Think about where we were on 9/10. At that point, the most successful attack on American soil was the Oklahoma City bombing. Should Bush have therefore ignored the threat of Jihadists? On the contrary, many liberals slammed him for paying insufficient attention to the “Al-Qaeda determined to strike in US” memo.
Just to be clear: I think the danger presented by people coming into this country with visas or as refugees is low. But it is not zero. Can we quit pretending that it is?
(I would note, in passing, that deciding on the wisdom of a policy is not the Court’s job. Antonin Scalia used to note that the Courts were required to uphold laws that were ill-advised but passed Constitutional muster. He joked that he wished he had a stamp: “Stupid but Constitutional.” I’m not quite familiar enough with this case to opine on whether Trump’s order is legal or Constitutional. It may be dumb. I know many on this blog disagree. But even if we assume it’s dumb, it’s not the Court’s job to stop stupidity.)