Why Any Immigration Barrier Directed At Muslims Is Counterproductive

In a letter that I signed, together with about 100 other former national security officials, we argued that the Trump Refugee Ban Executive Order, in addition to being unnecessary and wrong,  “will harm our national security” because  “it has already sent exactly the wrong message to the Muslim community here at home and all over the world: that the U.S. government is at war with them based on their religion.”  In my posts on Facebook about the Order, I made a similar point—that such a ban makes us less safe, not safer.

As you might expect, we have received pushback for this point.  Isn’t it better to take no risks?  Given the terrorist attacks in Europe, isn’t there at least a small risk that one person from this country intends us harm?  If, so, why take even this small risk?

Even apart from the obvious point that we accept far greater risks in our everyday lives, this question also fails to consider the possibility that imposing such a ban itself increases the risk of radicalization.

As explained in an interesting article in yesterday’s New York Times, there is actually some research that supports our fear that anti-Muslim actions and rhetoric will contribute to the radicalization process, and thereby increase the risk of developing home grown terrorists.  The academics of conducted this study, Sarah Lyons-Padilla of Stanford and Michael Gelfand of the University of Maryland explain their study:

We conducted a survey with nearly 200 American Muslims, half of whom were immigrants, half of whom were born in the United States. We asked them about their experiences as religious and cultural minorities, including their feelings of being discriminated against on the basis of their religion. We also asked how they managed their dual identities as Americans and Muslims, and how they felt toward fundamentalist Islamic groups and extremist causes.

Our findings were clear: The more our participants reported feeling culturally homeless — that is, fully belonging neither to American culture nor to that of another nation — and discriminated against on the basis of their religion, the more they said they experienced a lack of meaning in their lives. In turn, this loss of meaning was associated with greater support for fundamentalist groups and extremist causes.

This finding was consistent with research by the social psychologist Arie Kruglanski that showed that the psychological need for significance, not religion or ideology, is what propels people toward extremism. Extremist groups offer a sense of purpose, certainty and belonging to those who work on their behalf.

These groups go after Muslims who feel culturally homeless, leaning heavily on the claim that the West is anti-Islam. In this context, Mr. Trump’s original ban, which sent a strong message that Muslims were not welcome in this country and could not be “real” Americans, amounted to free propaganda for extremists. As one poster argued on a pro-Islamic State web channel, Abu Bakr al-Baghdadi, the declared leader of the Islamic State, should consider Mr. Trump’s executive order a “blessed ban.”

You can find the article here.  The full study is also interesting and can be found here.  

While it appears the original Executive Order will be pulled back, it will replaced with an Executive Order that will still target immigrants from predominately Muslim countries.  It too will send a message that will hurt our efforts to prevent radicalization.

Immigrants and Crime

While the focus on attention lately has been on the link  (or the lack thereof) between terrorism and refugees, President Trump and other advocates of more restrictive immigration policies also contend that immigrants are responsible for an increase in crime.  I thought it would be interesting to take a look at the evidence.  Not surprisingly, the claim appears to be false.  Immigrants, actually, are less likely to commit crimes than native born Americans.

Scientific American offers a good summary of the evidence on this issue:

Immigration-crime research over the past 20 years has widely corroborated the conclusions of a number of early 20th-century presidential commissions that found no backing for the immigration-crime connection. Although there are always individual exceptions, the literature demonstrates that immigrants commit fewer crimes, on average, than native-born Americans.

Also, large cities with substantial immigrant populations have lower crime rates, on average, than those with minimal immigrant populations.
.  .  .
Across our studies, one finding remains clear: Cities and neighborhoods with greater concentrations of immigrants have lower rates of crime and violence, all else being equal.

Read the entire post  (which was written by the researchers themselves, and not filtered by journalists).

A Double Standard on Religious Violence?

I used to blog at the Episcopal Cafe, and I highly recommend it to anyone interested in how faith, politics and life intersect.  Follow them!  David Allen has a very interesting  post at the Episcopal Cafe discussing the double standard Americans have toward religious violence.  When Christians engage in religiously motivated violence, we reject them as legitimately Christian.  On the other hand, when Muslims commit such violence, not so much:

A recent poll by the folks at PRRI bears this out. 75% of the folks in the US believe that people who commit acts of violence in the name of Christianity are not Christian. But only 50% of the folks in the US believe that people who commit acts of violence in the name of Islam are not Muslim. That’s a double standard when it comes down to who folks in the US believe commit acts of violence.

It gets even more interesting when those who hold this double standard are broken into various groups, such as Republicans vs Democrats. 75% of Republicans don’t believe that Christians who commit violent acts are really Christians, while only 33% of Republicans don’t believe that Muslims who commit violent acts are really Muslims. The Democrats do a little better but still have a double standard. 79% of Democrats don’t believe that Christians who commit violent acts are really Christians, while 55% of Democrats don’t believe that Muslims who commit violent acts are really Muslims.

Read the full post here.  You can find the full survey results here.

Russia's Interference in Elections Is Not New

Andrew Weiss of the Carnegie Endowment has an interesting op-ed in the Wall Street Journal today that makes the point that Russian interference in the elections of other countries is nothing new.  For example the KGB used similar tactics in the 1980’s in an effort to defeat deployment of U.S. intermediate range nuclear missiles in Europe:

The Soviets did everything they could to encourage and manipulate the grass-roots European peace movement that had risen up in opposition to the new weapons.
According to declassified CIA reports, Moscow used a web of front groups, secret payments to activists and articles placed in the press. The Russians also carefully conveyed propaganda themes to sympathetic media outlets, peddled disinformation and produced damaging forgeries of official U.S. and NATO documents.
.  .  .
The KGB and its allied intelligence services also tried to tilt elections in the U.S., Western Europe and the Third World. At the height of the debate over the U.S. missile deployment in Europe, the Soviets organized what Chancellor Helmut Kohl’s government called a “massive propaganda campaign of interference in West German affairs” to force his ouster in the country’s March 1983 election. But the Soviet effort backfired. The crude Soviet “press commentaries” and staged “workers’ rallies” horrified Kohl’s party and even the opposition Social Democrats.

As Weiss notes, Russia is now likely to use similar tactics in several upcoming European elections:

With elections also coming up this year in Germany, the Netherlands and perhaps Italy, the Kremlin’s willingness to use its KGB-style tool kit has put intelligence services across the continent on alert. In Germany, for instance, a high-profile January 2016 fake-news story about an attempted sexual assault on a Russian-German teenager by Middle Eastern refugees, which was also spread by Russian Foreign Minister Sergei Lavrov, stoked popular anger toward Chancellor Angela Merkel—probably Mr. Putin’s most prominent foreign foe.

There is one remarkable difference, however, between Russia’s electoral interference in the past and what we are seeing today.  In the past, the efforts were largely designed to bolster the left in elections.  Today, the efforts instead are designed to bolster the far right.  This is a fascinating change, which reflects a return to Russia’s traditional, pre-Revolution strategy in the World, but that is a post for another day.

Read the full post here.

Could America Really Win a Limited Nuclear War?

Geoff Wilson and Will Saetren have an interesting  post at National Interest that asks several interesting questions:  could the U.S. win a limited nuclear war? Should we spending more energy planning for a scenario?  They offer an emphatic (and persuasive) NO.  The question is not an academic one:  the Defense Science Board has recommended that the Trump Administration make the U.S. nuclear arsenal more capable of fighting a limited nuclear war.  In addition, the U.S. still has tactical nuclear weapons in Europe.  Finally, Russia's apparent violation of the Intermediate Ballistic Missile Treaty could result in the U.S. itself adding new intermediate missiles in Europe.

 Against this backdrop, Wilson and Saetren argue that trying to win a limited nuclear war is misguided.  The whole piece is worth reading, but this example was particular chilling:

That belief is a fantasy. The real problem with this proposal is that any use of nuclear weapon, limited or not, could lead to escalation.

In fact, the Reagan administration launched a wargame in 1983 to test the Madman Theory and analyze the viability of U.S. nuclear warfighting plans. Codenamed Proud Prophet, the exercise had NATO launch limited nuclear strikes against Soviet targets in response to conventional provocation. But instead of backing down, the Soviet team doubled down, launching a massive nuclear counterattack at the United States, to which the U.S. responded in kind.

Wargame over.

When the dust settled half a billion people had been annihilated. NATO was gone. The results were reportedly such a shock to Reagan that his schedule had to be cleared for the rest of the day. The blowback was swift.

Read it all here.

Major Troy Gilbert Came Home

Several years ago when I was Air Force General Counsel, I received a call from retired General Walt Huffman, who I worked with when I was the Army General Counsel. He told me that a friend of his, Ginger Gilbert, was the widow of an Air Force pilot killed in Iraq. Major Gilbert's body had been taken by insurgents. Walt explained to me that the Air Force had told Ms. Gilbert that they would no longer be searching for his remains once we pulled out of Iraq because "he was accounted for" (we knew that he had died in the crash.) I agreed with Walt that this didn't seem the right decision and went to my boss, Secretary Donley, to get the decision reversed. Secretary Donley did so, and the search continued.

Last week, I received another call from Walt Huffman letting me know that Major Gilbert's remains had finally been recovered and placed at Arlington Cemetery. He also told me that Ginger Gilbert was doing well. She had remarried, and started a charity called "Folds of Honor" that focused on the children of fallen warriors like her husband.

It was nice to know that something I did while Air Force General Counsel had a nice ending.

More about Major Gilbert here.

A Primer on Emoluments And Its Possible Application to President Trump

I have had several friends ask me for thoughts on whether President Trump’s business dealings with foreign countries violates the Emoluments Clause of the U.S. Constitution.  Both as Air Force General Counsel and in private practice, I have actually had to give legal advice on the meaning and scope of this provision of the Constitution.  It most often comes up when retired military members (who are still considered officers of the United States) accept jobs with foreign governments.  As I detail below, the legal issue here--whether business transactions with foreign governments violates the Emoluments Clause--is unsettled  There are two competing theories, both of which focus on the meaning of the word “emolument.”

One beginning word of caution:  while those who oppose Donald Trump will find attractive any argument that can be used to defeat him, this issue will affect many others as well.   While the Emoluments Clause might seem obscure to many, this provision is not at all obscure to the over 2 million military retirees and 2.8 million federal employees.  They are subject to the Emoluments Clause, and the issue of the Emoluments Clause could have consequences for federal employees and retirees.  For example, if the Trump Organization’s sales to foreign governments gives rise to an Emolument, this would also be true of a small veteran owned business that makes sales to foreign governments--which is not that rare in the government contracting world.

The Emoluments Clause, U.S. Constitution, Art. I § 9, cl. 8 states: No Title of Nobility shall be granted by the United States:

And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

While there is actually some argument that the President is not a person holding an “Office”, that argument is rather esoteric, and is inconsistent with the views expressed by the Office of Legal Counsel over the years (including most recently, an opinion about whether President Obama’s acceptance of the Nobel Peace Prize would violate the Clause).  The real argument is whether the profit or revenue gained from a bone fide business transaction with a foreign government is an “Emolument.”

There are two views based on the definition of emolument.  The first, more narrow view, is that an emolument is something of value you gain from employment or personal service.  As the Office of Legal Counsel has explained, and as the Oxford English Dictionary teaches, the word “emolument” is primarily defined as “profit or gain arising from station, office, or employment: reward, remuneration, salary.”  Under this view, business transactions fall outside the definition because they do not result from employment or office.  Professor Andy S. Grewal of the University of Iowa has an excellent article outlining this view.

The second, broader view advanced by Larry Tribe, Norman Eisen and Richard Painter in a Brookings Institution paper is that given the history of this provision--which was intended to prevent foreign influence over federal officers, a broad definition is appropriate.  Thus, while they admit that the primary meaning of emolument is payment or reward you get from employment or office,  they argue that we should look to an older, secondary meaning of emolument:  “advantage, benefit, comfort.”  Under this definition, even legitimate business transactions are covered  because they provide a benefit to the officer.

While I think Tribe, Eisen and Painter make a compelling historical case for the broad view, their view is not consistent with how the Emoluments clause has actually been enforced in cases under the Emoluments Couse (largely involving military retirees and employees).  Indeed, when I worked on Emoluments issues before Trump was elected, I had always taken the employment-focused view.   This is because the two authorities that opine on the Emoluments Clause (Office of Legal Counsel and the Comptroller General) have consistently relied on the narrow, primary definition in their numerous opinions on this issue.  And more to the point, they have opined that it does not violate the Emoluments Clause if an officer works for a corporation that provides goods and services to a foreign government.  This is because the Emoluments Clause applies to natural “persons”, and if it is a corporation that receives revenue from a foreign government, its employees are not in violation of the Emoluments Clause.   The Office of Legal Counsel has opined that the Emoluments Clause comes into play in these circumstances only when the corporation is a “mere conduit” for the employment of the officer.  To be fair, however, I am not aware of any case brought to the Office of Legal Counsel that raised the extensive foreign business involvement of the Trump Organization.

What I find curious is that no one has focused on another key element of the Emoluments Clause.  It expressly allows Congress to consent to an emolument.  Congress has done so for most retirees and officers by enacting a statute that consents to all emoluments approved by agency heads.  Such approval is routinely granted in many circumstances.  I wonder if Congress would consent to President Trump’s emolument if a Court took the broader view?

Keep Your Eye on North Korea

While everyone is focused on the Flynn story, it might be time instead to think through the real crisis this week: North Korea's test of a ballistic missile. The press reported that President Obama warned Trump that North Korea would be the most dangerous and challenging national security issues. He was right.

In the next four years, North Korea will likely develop the capability to hit the United States with a nuclear-armed missile. In response, countries in the region such as South Korea and Japan might well stop believing that the United States would come to their defense against North Korea. They might well develop nuclear weapons of their own. To say that this will destabilize a region that has had a restless peace for the last 60 years would be an understatement. And given the often bizarre nature of the North Korean regime, the notion that they could have the power to destroy an American city is intolerable.

There are not many good options available to the United States to stop this from happening. We could continue to ratchet up our already severe sanctions, but that has not seemed to work in the last twenty years. The North Korean government will let its people starve if that is the price of nuclear weapons development. Some pundits insist that North Korea is on the verge of collapse, and that we just need to ratchet up the pressure. Given that they have been saying this for years, I am deeply skeptical. (In addition, a failed state with nuclear weapons is not exactly a great outcome, is it?)

One option that we have not used is military force to take out North Korea's nuclear capabilities or even its leadership. The problem with this option is that Seoul and much of the population of South Korea is just 35 miles from the North Korean borders. While I am convinced that South Korea and the U.S. could decisively defeat North Korea in any military conflict, the price would likely be the destruction of Seoul of the death of hundreds of thousands of South Koreans. And the conflict could quickly degenerate into a war involving Japan and China as well. Not surprisingly, the South Koreans are not huge fans of this option.

Like it or not, while we need to keep all of our options on the table (and perhaps ratchet up sanctions in the near term), the only viable solution may be a grand peace deal with North Korea (technically, we are still at War with North Korea--we only have an armistice, not a peace). This means direct talks with the North Koreans, and will inevitably require deep involvement by China. There is much to dislike about this option, and it may not work, but it seems like the least bad option we have right now.

The Council on Foreign Relations has published a very useful analysis of this issue here.  For a different point of view (suggesting that deterrence will make this less of an issue) read this National interest article.

Is the Ninth Circuit Reversed 80% of the Time?

The President just said at his press conference that the Ninth Circuit decision on his travel ban Executive Order can be discounted because Ninth Circuit decisions are reversed 80% of the time by the U.S. Supreme Court. This is a point I am starting to hear from conservative pundits and tweeters. Is this true? Yes. Does it mean that the Ninth Circuit is out of the legal mainstream? Not at all.

This number is meaningless and quite misleading. You need to remember that the Supreme Court refuses to even hear the vast majority of cases from the Ninth Circuit (and other circuits for that matter). They only accept about 1% of all cases brought to them. As the Supreme Court website explains, they receive

approximately 7000-8000 petitions for writ of certiorari (the fancy Latin term for "hear my case"), but the Court only hears about 80 cases each year. In fact, a major part of my job as a law clerk was helping the Justice review the thousands of petitions in order to select the very few that would be heard by the Court.

This is true of the Ninth Circuit as well. In the 12 months leading up to March, 31, 2015, just under 12,000 cases were filed in the Ninth Circuit. Yet, the Supreme Court heard just 11 cases from the Ninth Circuit in 2015, reversing eight. Thus, given that so few Ninth Circuit cases are reversed by the Supreme Court, you could just as accurately say that the Supreme Court only reversed the Ninth Circuit less than 1% of the time.

And even looking purely at the reversal rate of the few cases accepted by the Supreme Court, the Ninth Circuit is not out of line with other courts. The Supreme Court rarely takes a case because it wants to affirm the lower court decision. What would be the point of that? Instead, the Court most often accepts cases if a majority of the Court has some doubts about the lower court decision. This results in the Supreme Court reversing far more often than affirming. In fact, the Supreme Court reversed about 70% of the cases it took between 2010 and 2105. Among the cases it reviewed from the Ninth Circuit, it reversed about 79%--just a bit higher than average. (The percentage was only 67% last year.) The 6th Circuit (hardly a liberal bastion) was the most reversed with an 87% average.

In sum, the 80% reversal statistic may give some comfort to Trump, but if I were him, I would be a bit concerned that the Supreme Court declines to reverse the Ninth Circuit more than 99 percent of the time.

Is the Russian Spy Ship A Problem?

One of the challenges in the current environment is that events that really are routine, and not a big deal, are getting a great of attention. Quite frankly, part of the problem is that there are only a few reporters who seem to understand the larger national security context, and they think that there is yet another outrage by the Trump Administration that is simply not there. This is especially the case when the story involves Russia.

The latest example is the mild hysteria about the Russian spy ship off the East Coast. Isn't this a threat? Should President Trump be doing something about this? Isn't this yet another example of Trump ignoring Russian outrages. In a word, no.

In fact, I suspect the officials in both the Navy and Air Force are quite happy with this development. Here is why.

Under the Law of the Sea, territorial waters are limited to 12 miles off the coastline. While countries have a 200 mile exclusive economic zone, warships of other countries are permitted to make travel in these waters for "peaceful purposes". While the US has not adopted the Law of the Sea, we recognize these rules as customary international law. Heck, we do more than pay lip service to these rules, we actively take advantage of them. U.S. Air Force surveillance planes known as RC-135 "Rivot Joints" routinely fly a bit more than 12 miles off the coast of China, Russia and other countries of interest. The Navy has ships that do similar missions. The Chines routinely complain that this is illegal. We just as routinely assert our freedom of navigation to continue these missions. This came to a head in 2009, when five Chinese warships surrounded the USNS Impeccable, a US Navy ocean surveillance vessel, and ordered it to leave the area. The Chinese continue to take the view that such military activities cannot be undertaken in the exclusive economic zone. The US position continues to be to the contrary.

So a Russia ship that comes to our coast one every few years is great because it reinforces a principle of international law that we take advantage of far more routinely. This is important because customary international law is developed by the actions of nations over time. By acting in a manner consistent with our view, they reinforce our rights to continue to do the same. So my former colleagues at the Pentagon are very happy right now, the outrage would be if the Trump Administration took action inconsistent with our longstanding view of the legality, under international law, of these kinds of operations.

And don't be concerned--i am confident that the Russians won't get much of interest from this mission. I am just as confident that we were learn far more about them by monitoring this ship.