Monthly Archives: February 2017

The Logan Act.

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Deborah (“Debby”) Norris came from a prominent 18th Century Philadelphia family.[1]  She married Dr. George[2] Logan, another child of a prominent 18th Century Philadelphia family and a Loyalist.  “Lively times” followed.[3]  George Logan returned to Philadelphia after the Revolution.  Indeed, he became a friend of Thomas Jefferson and helped to found the Democratic Party.  So, reconciliation occurred between former enemies.

A similar spirit of reconciliation took hold in Anglo-American relations.  Jay’s Treaty (1795), negotiated by the Federalist government of George Washington, spackled over a bunch of cracks in the relationship with Britain.[4]  For domestic political reasons, the Democrats opposed letting bygones be bygones.

So far, so good.  A problem arose, however, because France had helped the United States achieve independence.  In return, the United States had agreed to repay to France substantial loans made to the revolutionary government and had signed a treaty of alliance with France.  Then the French Revolution broke out, the revolutionaries abolished the monarchy (1792), and the French—“in a rit of fealous jage”[5]—declared war on almost every other country in Europe, including Britain.  The alliance treaty required the United States to go to war against Britain.

The Americans declined to fulfill the terms of the alliance; the French got bent out of shape and launched a naval war against American shipping; and the two countries negotiated in search of a settlement.  However, several of the French delegates wanted bribes to bring the negotiations to a successful conclusion, so most of the Americans left in a huff.[6]  At this point, George Logan inserted himself into the negotiations as a private citizen.  This effort led nowhere, any more than had the official negotiations.  Upon learning of Logan’s free-lancing, the Federalists–outraged at Democratic meddling in diplomacy–passed a law forbidding private citizens from intruding in negotiations with a country with whom the United States was at odds.

The so-called “Logan Law” remains on the books.[7]  Michael Flynn, National Security Adviser to President Donald Trump, may have fallen afoul of this law.  Flynn had contact with the Russians during the period between the election of Trump and his inauguration.  Since Trump was not yet president, Flynn falls under the act.[8]

However, that isn’t the most interesting aspect of the case.  We know of these conversations because they were intercepted by American intelligence.[9]  On the one hand, Flynn–a former head of the Defense Intelligence Agency (DIA), had a phone conversation he had every reason to believe would be intercepted.  The National Security Adviser is an idiot.

On the other hand, we know of the intercepts because someone in the intelligence community leaked the information to the press.  For reasons that I, at least, understand, Donald Trump rejected the early findings that the Russians had intervened in the 2016 election.  However, Trump has escalated his fight against the intelligence agencies.  Now they are fighting back by releasing secret information to discredit the president and his advisers.  That’s bad news.

[1] On Debby Logan, see: C. Dallett Hemphill, Philadelphia Stories (forthcoming).  I love you darling.

[2] Apparently NOT “Georgie.”  Go figure.

[3] See: https://www.youtube.com/watch?v=UVuAqLTmvFY

[4] See: https://en.wikipedia.org/wiki/Jay_Treaty

[5] See: https://www.youtube.com/watch?v=hAnpfct1WaQ

[6] See: https://en.wikipedia.org/wiki/XYZ_Affair

[7] See: https://en.wikipedia.org/wiki/Logan_Act

[8] Shane Harris and Carol E. Lee, “Flynn Discussed Russia Sanctions,” WSJ, 11-12 February 2017.

[9] That is, in all likelihood by the National Security Agency (NSA).

A Fateful Moment.

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Currently, the American list of terrorist organizations in the Middle East includes al Qaeda, ISIS, Hamas, and many other groups.[1]  Now the Trump administration is considering adding both Iran’s Islamic Revolutionary Guard and the Muslim Brotherhood to the list.

What are the arguments for and against such steps?

A Sunni-Shi’ite civil war tears at the Middle East.  Russia has made a clear choice to back the Shi’ite side.  Iran leads the Shi’ite cause, is unique as an Islamist state, and is hostile to both the United States and Israel as well.  The Obama administration refused to choose, causing a good deal of distress among its Sunni allies and Israel.  Despite these real diplomatic problems, an attack on Iran’s nuclear program would have opened a larger conflict at a moment when Americans were fed-up with war in the Middle East and ISIS banged at the gates of Baghdad.

The Trump administration is re-thinking this policy.  The Revolutionary Guard is an independent military force that answers directly to the Supreme Leader of Iran.  Over the years it has also spread into a powerful position in the economy.  In addition, it plays a leading role in Iran’s covert operations.[2]  The Trump administration believes that Iran plays a disruptive, hostile role in the Middle East.  Targeting the Revolutionary Guard makes sense as a starting point.

The Muslim Brotherhood was founded in Egypt in 1928.[3]  Eventually, getting nowhere with violence, the Egyptian core of the Brotherhood abandoned that in favor of concentrating on its other social programs.  The Egyptian movement has off-shoots elsewhere.  There are affiliates in Morocco, Tunisia, and Jordan.  Hamas, which rules the Gaza Strip, is another off-shoot.

In the wake of 9/11, the Bush and Obama administrations pursued a policy of engagement with any Muslim group that sought political power by peaceful and democratic means.[4]  Thus, in 2012 the Obama administration embraced the Muslim Brotherhood government of Mohammed Morsi in Egypt.  However, important American allies in the Middle East have long considered the Brotherhood to be a terrorist organization.  These allies include Egypt, Saudi Arabia, and the United Arab Emirates.[5]  Also, Israel is deeply hostile to Hamas.

Again, the Trump administration is considering reversing course by declaring the Muslim Brotherhood a terrorist organization.  However, Turkey’s Islamist government supports the Brotherhood, which it sees as a similar movement.  Since the Egyptian coup, the Brotherhood has been allowed to maintain offices in Istanbul and to operate a television station that broadcasts throughout the Middle East (including to Egypt).  Moreover, millions of Egyptians still support the Brotherhood, albeit they’re keeping their heads down at the moment.

The Muslim Brotherhood is an umbrella organization.  Many of its members in many Middle Eastern countries remain committed—for now—to peaceful means.  Would declaring the Muslim Brotherhood further alienate its members?  Would it drive some of them to using violence?

So, a fateful moment in which caution should prevail over bold action.  Bold action in 2003 led to the invasion of Iraq, “and all that implies.”

[1] Felecia Schwartz and Jay Solomon, “U.S. Weighs Terror Label for Two Groups,” WSJ, 9 February 2017.

[2] I realize that it is inflammatory to say so, but the historian in me sees organizational and political parallels between the Revolutionary Guard and the SS in Nazi Germany.  I do not mean to suggest any moral equivalence.

[3] Yaroslav Trofimov, “The Pitfalls of Blacklisting Muslim Brotherhood,” WSJ, 27 January 2017.

[4] While this is admirable in theory, one cannot help wondering if it is merely cosmetic in a region of authoritarian governments.

[5] That said, Saudi Arabia has eased up a little in its hostility to the Brotherhood.  Conversely, Egypt experimented with toleration for the Brotherhood in 2012-2013, only to restore the military dictatorship by a coup.

Pret-a-penser.

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“Americans’ deep bias against the political party they oppose is so strong that it acts as a kind of partisan prism for facts.”  It “now operates more like racism than mere political disagreement,…”[1]  The deepening antipathy to the opposition party seems to have begun in the 1980s.[2]

That is, disputes over policy issues now seem to entail a positive or negative judgment of the person making the argument.[3]  One researcher suggests that “we [now] hold party identity as something akin to gender, ethnicity, or race—the core traits that we use to describe ourselves to others.”[4]  Just as exogamous marriage (across racial or social class divides) is much less common than endogamous marriage, politically exogamous marriage is rare.  One survey found only 9 percent of marriages were between a Republican and a Democrat.

Apparently, neither Republican nor Democratic voters adopt a critical stance when evaluating information.  Instead, they tend to rely on the endorsement of that information by someone or some organization that they already trust.  Given the increasingly cloistered political communities in which they dwell, the people to whom others look for endorsement tend to be people with essentially the same beliefs.[5]  Deeply partisanized voters seek out or respond to negative stories about the opposition party and politicians.  The endless liking/sharing of political posts on Facebook publically affirms membership in the group.[6]  There is a greater danger than thrown drinks or thrown punches among individuals.[7]  Politicians have already cleared out the middle ground in most legislatures.  What if they are driven to adopt ever-more extreme positions to keep up with their bases?

Something similar happened in Europe between the two World Wars.  Pre-First World War politics had pitted conservatives against liberals, with rapidly growing socialist parties marginalized to the extreme left.  The war changed all this in many places.  Wartime grievances among workers at first enlarged the socialist parties.[8]  However, the Russian Revolution created the Communists as an entirely new and more radical party on the left.  At about the same time, a radical new party emerged on Europe’s right, the Italian Fascists.  Early in the Thirties, the Great Depression sent voters in many places streaming toward other parties of the radical right, like the Nazi Party in Germany and the various “ligues” in France.  The effect of the radical movements on the extremes came in the democratic Socialists having to talk more like the Communists and the conservatives having to talk more like the fascists.  The middle ground in politics, where compromise traditionally had taken place, began to clear out.  Democratic systems on the Continent became paralyzed as the need for action became dire.

Then came running and screaming.

[1] Amanda Taub, “Partisanship Is the Real Story Behind Fake News,” NYT, 12 January 2017.

[2] That would trace the roots to the period of the Reagan Administration, followed—eventually—by the Clinton Administration.

[3] This may include supposedly dispassionate researchers investigating the phenomenon.  One quoted in Amanda Taub’s story says “If I’m a rabid Trump voter and I don’t know much about public affairs,…”

[4] Can Republican and Democratic bathrooms be far behind?

[5] Thus, many Republicans would lap up news from Fox, while many Democrats would look to MoveOn.org for all their meme needs.

[6] We’ve got the “Australian ballot.”  Maybe we could use the “Australian opinion”?

[7] This link shows one example.  https://www.youtube.com/watch?v=n8HGTmANHyU  However, two cousins (Democrats) returning from the Midwest just after the Republican convention said that they felt threatened by the pro-Trump people on the plane.

[8] In the case of Britain, the Labour Party soon eclipsed the Liberal Party.

The Selective Immigration Pause.

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U.S. immigration law grants to the president the right to “by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or as non-immigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”  All s/he has to do is to “find that the entry of any aliens or any class of aliens into the United States would be detrimental to the interests of the United States.”

The portion of immigration law that bars discrimination on the basis of race, sex, nationality, place of birth, or place of residence appliers specifically to the issuing of visas.  It appears to not supersede or to limit the right of the president to bar visa-holders from entering the country.

Little-noticed in the popular discussion of the case, Washington’s solicitor-general appeared to narrow the reach of the suit to a sub-set of the affected people.  “The focus of our claim is on people who have been here and have, overnight, lost the right to travel,… to visit their families,…to go perform research,…to go speak at conferences around the world.  And also, people who had lived here for a long time and happened to be overseas at the time of this order…and suddenly lost the right of return to return to the United States.”  In short, people with green cards or long-term visas.[1]  Judge James Robart appeared to accept this argument in his decision.

Washington Attorney-General Bob Ferguson went beyond this claim.  He acknowledged that the “courts generally give more latitude to the political branches in the immigration context.”  However, “Federal courts have no more sacred role than protecting marginalized groups against irrational, discriminatory conduct.”[2]  Are the Arab immigrants a “marginalized group”?  Is President Trump’s executive order “irrational”?

The Washington suit is likely to be sustained by the U.S. Court of Appeal for the Ninth Circuit.  It is the most liberal of the Courts of Appeal.  If these were normal times, then an appeal to the Supreme Court by the Trump administration probably would end with the Court of Appeal’s judgement being reversed.[3]  However, these are not normal times.  Republican refusal to pass on a replacement for the late Antonin Scalia has left the Supreme Court dead-locked between liberals and conservatives.  When the Supreme Court cannot agree, then the decision of the lower court is affirmed.[4]  So, it would appear that the immigration pause is about to go down in flames.

For most of the Obama administration, Republican attorneys-general sued to block executive orders and rules.   Many times, they won.  Now a Democratic attorney-general has sued to block President Trump’s temporary-for-the-moment ban on some immigrants and refugees.  It is curious that this one suit has brought on “a constitutional showdown that could leave a mark on the law for generations to come…”[5]   A constitutional showdown would arise only if the Trump administration refused to abide by a court decision.  Which it has not yet done.

But I’m not a lawyer.  Obviously.

[1] If this reading is correct, then Washington is not challenging the executive’s authority to bar refugees or new entrants to the United States.

[2] No one who grew up in the Pacific Northwest or California can have any doubt that Ferguson is referring to the criminalization of Japanese ancestry on the West Coast during the Second World War.

[3] A 2010 study by the American Bar Association found that of the small number of the Ninth Circuit’s decisions reviewed by the Supreme Court, 80 percent were overturned, compared for a national median of 68.29 percent.

[4] If I understand what I read.  Hmmm…

[5] Adam Liptak, “The President Has Much Power Over Immigration, but How Much?” NYT, 6 February @017.

Memoirs of the Addams Administration 4.

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In his second week in office, President Trump issued an executive order requiring that any new regulation must be accompanied by the removal of two existing regulations.[1]  Given the cumbersome mechanism for removing existing rules and regulations, this should put a stop to new rules and regulations for a year.[2]  (He allowed an exception for national security-related issues.)  A cost-benefit analysis of this issue is murky.  The Office of Management and Budget suggests that regulations drain-off $110 billion a year from the economy.  On the other hand, the same regulations may save the economy an estimated $872 billion a year.  The “benefits” of regulation actually are non-monetary and can be difficult to calculate in a conventional manner.[3]  In short, neither the “costs,” nor the “benefits” of regulation can be calculated.

President Trump nominated Neil Gorsuch to fill the Supreme Court vacancy created when Antonin Scalia augured-in.  Judge Gorsuch is a highly-regarded jurist, as was Judge Merrick Garland, who was denied even a hearing in a shameless piece of Republican obstructionism.[4]  He’s also 49 years-old and could sit on the Court for decades, short-circuiting every Democratic initiative launched by the turn of semi-annual or quadrennial elections.  Democrats demonstrated dismay.  “This is a stolen seat,” declared Senator Jeff Merkley (D-Oregon); the “Republicans stole this seat from Obama” declared the Charlotte Observer (D-North Carolina); while the Atlantic (D-Massachusetts) denounced it as a “deal with the devil.”

Still, the Republicans controlled the Senate when President Obama nominated Judge Garland.  They weren’t going to approve a pro-Democratic Justice when the election tides had been running against the Democrats for three out of four successive elections.  Hearing followed by rejection isn’t any different than rejection through no hearings.  The assumption in the White House appears to have been that whichever party held the White House got to choose which ever justice it wanted for the Supreme Court.  If that’s true, then what about Robert Bork?[5]

[1] “Washington: Trump orders regulatory rollback,” The Week, 10 February 2017, p. 32.

[2] See Emmarie Huetteman, “How Republicans Will Try to Rescind Obama Regulations,” NYT, 31 January 2017.

[3] Perhaps not everything can be reduced to a balance sheet.  Still, do we want a flight into mysticism and “personal feelings” on behalf of people whose standard of living depends upon other people generating wealth?

[4] “Battle lines drawn over Supreme Court pick,” The Week, 10 February 2017, p. 5.

[5] See: https://en.wikipedia.org/wiki/Robert_Bork

Memoirs of the Addams Administration 3.

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Last week, a team of people from the Trump administration told a number of senior professionals at the State Department that their resignations had been accepted and that there would be no need for them to remain in their positions until the administration’s nominees for replacements had gotten up to speed.  (Is this the case in other Departments[1] or is it unique to the State Department?  If it is unique to the State Department, then was it the decision of President Trump or of his Secretary of State-designate Rex Tillerson or of someone else who shall remain nameless, but whose initials are Steven Bannon?  If the decision originated with Tillerson, did it reflect previous contact with the State Department while negotiating oil deals with foreign countries?)

Over the week-end, President Trump reconfigured the “principals committee” of the National Security Council.  While this has been characterized as, among other things, a diminution of the role of the professional military, both the Secretary of Defense and the Secretary of Homeland Security are retired Marine Corps generals.  Thus, it could be construed—OK, misconstrued—as a shift from the Bureaucratasaurus to the Parrisasaurus Rex.

Currently, an estimated 90,000 people from radical-Islamist-ridden “countries” have received visas to enter the United States.[2]  On Friday, 27 January 2017 (one week after taking office) elected-President Donald Trump issued an executive order imposing a 90-day “pause” on immigrants from the seven Muslim-majority countries from entering the United States.[3]  This disrupted the late-stage travel plans of about 700 people, who were prevented from boarding U.S.-bound planes.  An additional 300 were halted upon arrival in the United States.[4]

Critics quickly pointed out that no one from these countries had ever committed an act of terror in the United States.  Implicitly, this left liberals in the awkward position of defending Sudan, which has waged a war of aggression—that the left has been quick to denounce as “genocide–in western Sudan, and that Sudan provided a safe haven to Osama bin Laden until President Bill Clinton launched cruise missile attacks against suspected al-Qaeda terrorist sites inside Sudan.  In contrast, countries whose citizens have engaged in terrorism against the United States—Egypt, Pakistan, Saudi Arabia—escaped the ban.

Massive protests followed at airports, in the streets, in Congress, and on editorial pages.  Not to mention that Iran launched a ballistic missile in a “test” shot: Syria, Iraq, and Yemen are Iranian-dominated countries, in the Iranian view.[5]  None the less, a snap poll revealed that almost half (49 percent) of Americans approved President Trump’s order, while 41 percent disapproved the order.  Various courts were quick to block the order.  All the same, neither refugees nor those foreigners seeking visas are protected by the Bill of Rights.  Indeed, that’s why so many people want to come to the United States.

The deep polarization of American politics continues into the post-election period.  However, neither Donald Trump nor Hillary Clinton appeared to be much of a healer.  So,,,

[1] This leaves the estimable-I’m-instructed Sally Yates out of the discussion.

[2] The seven countries are Iran, Iraq, Libya, Somalia, Sudan, Syria, Sudan, and Yemen.  To be picky, Umar Farouk Abdulmutallab, the Nigerian-born “underwear bomber” who tried to bring down an airliner headed to Detroit (why?) had been recruited, trained, and armed in Yemen; al-Shabab in Somalia has recruited a number of Somali-Americans from the upper Midwest.

[3] The temporary and limited ban easily could be extended and broadened.  But why would it have to be?  President Trump has already succeeded in scaring the be-Muhammad out of Muslims and potential immigrants.

[4] “Travel ban prompts chaos, protests,” The Week, 10 February 2017, p. 4.

[5] “How they see us: Trapped by Trump’s travel ban,” The Week, 10 February 2017, p. 15.