Do we have a disaster recovery plan?

Last week, a deranged gunman opened fire on Republican congressmen practicing for a friendly baseball competition with Democratic colleagues. Casualties were light, given the circumstances, but now some congressmen are pushing for open-carry permits so that they can defend themselves. The only reason that there weren’t many more victims in this shooting is that one of the players, Rep. Steve Scalise, has a full-time security detail as Majority Whip. And these brave officers successfully intervened, at great cost to themselves. But sad as this all was, it reminds us that far worse threats are lurking.

On 9/11, United Airlines Flight 93 was hijacked but crashed in a field in rural Pennsylvania. Its intended target, believed to be the US Capitol, was saved by the intervention of passengers who took matters into their own hands. There are many lessons that can be learned from this tragedy, not the least of which is that ordinary people can do extraordinary things given the means and the opportunity. It makes me think that arming at least some qualified, sensible people might not be as bad an idea as it is generally portrayed.

A second lesson is that we came very close to mass casualties on Capitol Hill. So, what if we lost many members of Congress, killed or injured, in a terrorist attack? You might think, given the situation and past experience, that we would have a plan for continuity of government, but you would be mistaken! There are certainly plans for the Executive Branch, with a clear line of succession, a protected safe facility, and rules for assuring there is at least one eligible survivor. The Senate is assured of rapid recovery because Senators who cannot perform their duties can be replaced with interim successors by the Governors of their states. At most a few days would be required to restaff a diminished Senate. But the House of Representatives is another matter entirely.

Our founders believed strongly that our two Houses of Congress should be vastly different in their members and how they conduct business. The Senate was designed as a wise, senior check on the winds of public sentiment. In fact, originally, Senators were not even chosen by popular vote at all. Rather they were selected by state legislatures, presumably from senior political figures, not unlike the framers themselves. There remains a faint memory of this approach in how replacements are still chosen when needed.

The House, however, has no such mechanism. It doesn’t permit unelected members. Indeed, House members pride themselves on the fact that no person has ever voted in their chamber who wasn’t first elected by the residents of their congressional district. States have fairly restrictive rules about conducting elections, so many months might pass before a decimated House could be reconstituted.

What if Flight 93 had caused mass casualties on the House side? Take a worst case, where perhaps only a dozen members were among the uninjured. What if they happened to be all members of one political party? Isn’t it possible that some fairly extreme bills might be passed? Of course the Senate and President could take their normal role as balancing forces. But that assumes they are also able to function. And there’s the rub.

If many House members survived but were incapacitated, they would all still be counted for the purpose of a quorum. So it is possible that the House would be virtually unable to function. If this isn’t enough to raise your hackles, the condition of the Capitol Building after an attack could also be crucial. If it is so badly damaged that it couldn’t be used, and if the House were crippled through lack of a quorum, then even the Senate would be out of business too. That is because meeting at an alternative site requires formal concurrence of both Houses.

I suppose there are some today who might rejoice if we had no federal legislative branch at all, at least for a while. Remember Mark Twain’s cynical quote, “No man’s life, liberty or property are safe while the legislature is in session.” But be careful what you wish for. The wheels of our economy would grind to a halt quickly without prompt and effective reaction to a shock of this type.

So why does the House let this threat go unanswered? It isn’t for want of attention. Efforts to develop contingency plans have foundered because they all abridge fundamental principles of the House that distinguish it from the Senate. Thus we remain a hostage to providence. We can hope, as Bismarck is said to have remarked, that “God protects fools, children, and United States of America.” Apocryphal or not, this seems to me to be a slender reed.

The Reach of our Constitution

The Constitution of the United States is our founding document. It sets principles for our laws and our conduct pertaining to them. But, regardless of our appreciation of its genius, it doesn’t apply universally beyond our borders. According to Supreme Court decisions, there are even limits to its application to our own citizens when they are residing abroad. And when foreigners are concerned, its applicability is very limited. In general they gain its protections only when they step on U.S. soil. The specific legal exception is when a foreigner has an established relationship with our country, such as holding a visa or a green card.

US President Donald Trump signs Executive Orders in the Hall of Heroes at the Department of Defense Friday, Jan. 27, 2017 in Arlington, Va.  (Olivier Douliery/Abaca Press/TNS)  1196704

So, what does this mean for the current dispute over President Trump’s executive order pertaining to immigrants from seven specific international hotspots? I have read arguments by informed scholars on this topic and as usual they don’t fully agree. However, I am always attracted to analyses that seem more objective because they contradict expectations. Harvard’s Alan Dershowitz is a renowned constitutional expert who espouses generally progressive viewpoints. But recently in a television interview, he forthrightly argued that due process rights don’t extend beyond our borders to non-citizens. This was my belief also, but I have no legal pedigree to back it up.

The recent decision by a federal judge staying this executive order cites, among other things, the violation of due process rights of potential immigrants from the specified seven countries. I believe that is a reversible error, but it is possible that other constitutional arguments may be relevant. For example, there is the issue of fair application of our laws and implementation procedures. Is this a proscribed ban on Muslims, as many proclaim? If it is, then it is so incompetently written that it fails almost totally to achieve its objective, so perhaps we should give it a pass. After all, it doesn’t apply to the vast majority of Muslims. If the Trump administration wished to ban Muslims, how could they have overlooked Indonesia, Pakistan, India, Egypt, Bangladesh, Turkey, and Nigeria, just to mention a few? Still, Trump’s statement that an exception should be carved out for Christians is revealing and perhaps damning.

It seems likely that this executive order will be argued before the Supreme Court because there have been conflicting decisions in lower courts. When this happens I suspect that the order will be blocked. However, that will almost certainly not be based on the merits of the case!

The reason for this is aptly encapsulated in a comment by SCOTUS nominee Judge Neil Gorsuch, “A judge who likes every outcome he reaches is very likely a bad judge.” I wholeheartedly agree. I think we have at most only two Supreme Court justices who successful pass this test, Chief Justice Roberts and Justice Kennedy. If you can always – always – predict a judge’s opinion simply by knowing the nature of the case then they are not judges at all, they are advocates. This indictment applies to a significant degree to the remaining six justices, as it certainly did to the recently deceased Antonin Scalia.

Reasonable people might disagree with Gorsuch’s observation because it will mean that occasionally a good judge must rule against his instincts and beliefs solely in support of the written law. Of course, one could always point to bad laws that should not receive such respect. However in general, laws are not bad or written with evil intent, and interposing one person’s beliefs is a slippery slope to oligarchy or worse. We are truly a nation of laws. They are what distinguish us. If you believe that sometimes they should be ignored when they violate your principles, consider what happens when someone who sincerely believes otherwise reaches a position of power. Is that really the precedent you wish to establish?

So, let’s return to Professor Dershowitz. I am sure that his instincts guide him toward believing that due process should apply universally. It is the very essence of fairness. But he is an honest man and he understands the law. So, perhaps reluctantly, he applied it to Trump’s executive order. I suspect he might be a good judge by Gorsuch’s standard. Evidently being a progressive doesn’t always mean that good intentions trump impartial analysis, which pleases me and gives me hope for our future.

A Thought on Sanctuary Cities

The most cogent argument I have heard supporting this movement is that local jurisdictions don’t want to dissipate time and resources enforcing federal law. But there is something a bit odd about this. If that is the real basis, then why broadcast this policy? Why not just quietly do nothing? The only explanation that makes sense to me is that authorities are inviting violators of immigration law to come and live in their cities. Hence we have the term “sanctuary city”. This is far more than prudent husbanding of scarce resources; it is actively thwarting the law.

A second argument sometimes given is that participating in this enforcement will sabotage vital community relationships, and that consequently illegal immigrants won’t help police in their investigations. That probably is true to a degree, although concrete evidence supporting this claim is weak. Nonetheless, whatever fears do exist are mainly attributable to misinformation. Police don’t query immigration databases for casual contacts in the course of their activities. The only time this happens is when someone is arrested, fingerprinted and booked. There is no real reason for a potential informant to be wary, but those opposing cooperation with federal authorities deliberately aggravate these fears by concealing the truth.

The real situation, in my opinion, is that those behind the sanctuary city movement simply don’t agree with restraints on immigration, no matter what the circumstances. They recall our virtually open doors many decades ago and the enormous benefits that our country derived from these newcomers. They also feel sympathy for those fleeing poverty or oppression or even those simply seeking a better life.

The arguments discussed above are subterfuge and are dishonest. A frank national discourse on our values and how we wish to express them is more pertinent and timely. These are no doubt perilous times. We cannot simply wish them away even with the purest motivations. But we should be clearheaded about what we might sacrifice in our search for security in an insecure world.

A Stack of Needles

 

600wi

It’s premature to draw confident lessons from the recent terrorist atrocity in Orlando, but information from official sources strikes a somewhat discordant note in my mind. FBI Director Comey seems to be saying that there are very few radicalized Islamic terrorists in our midst, at least in proportion to our native Muslim population. Yet these are far too many to follow every lead intensively or to take action beyond what has been done. That implies two things. Our internal security services are overwhelmed and underfunded for the job we have assigned them, and their rules of engagement, which treat this as a criminal matter, preclude some possible preventive actions.

We don’t allow preventive detention. We disavow hard interrogation. We place no onus or responsibility on family members who almost certainly are aware of the situation. We act only on verifiable evidence that a crime has been committed, and that evidence must meet strong legal standards. Self-incrimination cannot be either forced or used. These are our values and we fervently wish to keep them. In fact, it isn’t too strong to express this belief by paraphrasing Patrick Henry’s famous declaration, “Give me all of my constitutional rights or give me death!” And that is where we seem to have taken a stand.

needles-istock-365But consider this background information. The Orlando killer had openly expressed support for terrorist acts and associated groups in the Middle East. He had applauded with glee when his high school class was informed about the Twin Towers attack almost 15 years ago. His association with another Florida man, who was the first known American suicide bomber in Syria and who attended the same Mosque in Orlando, led to the first of three FBI investigations. Moreover his openly expressed support for ISIS so alarmed fellow employees at his work location that they reported this to authorities. These investigations clearly revealed his radical sympathies but there was no evidence of either a past or imminent crime. He made several trips to the Middle East, at least one of which had no obvious purpose. The other two were purportedly to attend the Hajj in Saudi Arabia. Regardless of all of this, he had dropped off the FBI radar. So, was he truly a needle in a haystack, or is it possible that there are so many who seem even more threatening that he is more like a needle in a large pile of needles?

It pains me to say this, but I suspect that incidents of this type will become commonplace. Its success will breed copycats even if ISIS plays no direct role other than applauding the perpetrator. Comey told a truth that no one is taking to its logical conclusion. We are intrinsically and probably permanently vulnerable. It won’t be like Iraq, but everyone will have to keep in mind that venturing anywhere in public will be about as dangerous as life often was in early 19th century America, particularly in the West. Of course, we survived these dangers and indeed prospered, so that is not a dire prediction. However, our lives will be changed in some uncomfortable ways.

One possible outcome will be serious infringements on our civil liberties in a probably vain attempt to defend ourselves. Another might be vigilantism, with the kind of armed populace that gets wild applause at Trump rallies. From the left I expect calls for far more restrictive gun and/or ammunition controls. While that might help at the margin, experience in the EU is discouraging. They have much stricter rules than us and yet that has hardly impeded the proliferation of terrorism. Frankly I see no happy solution. In the aftermath of the latest tragedy, as always, everyone is talking and speculating about this issue. But I see little evidence that either its seriousness or the limitations on our responses are recognized. I surmise that Director Comey and President Obama both do recognize this but feel that they can’t reveal it openly because they fear the consequences.

Dealing with Terrorist Threats

E-mail threats were delivered to both the New York and Los Angeles school districts today, resulting in widely different responses. LA consulted officials and enforcement authorities within the state’s school hierarchy and decided to close all schools in an abundance of caution. NY widened their consultation to include the police and FBI and decided that it was a hoax. Whether either of them took the right course is not dependent on how things turn out. That involves hindsight. The point is that we probably need a systematic approach managed by the federal government for dealing with what will no doubt be a continuing situation.

As I write this, word is coming out of the specifics of these e-mail threats. I think NY got it right.

It doesn’t seem plausible to me that simply assuming the worst in all situations can possibly make sense. That would allow either real terrorists or even pranksters to bring our normal life to a halt. On the other hand, who wants to make a call that might place innocents at risk? Actually, such threats have been occurring for a long time. It is only recently, with the rise of Islamic terrorism, that they raise special concerns.

One relevant aspect occurs to me. There have certainly been instances where Islamic terrorists have made general threats to harm us, sometimes even referring to specific cities or types of venues. But I can’t recall an instance where a particular target and general time frame was provided in a threat that turned out to be a genuine precursor to an attack. That doesn’t match their modus operandi. Their primary goal is to inflict maximum harm, not just to frighten us. In contrast, IRA terrorists in the UK often did exactly that because they wanted to make a point without mass casualties.

The Syrian Refugee Dilemma

There is no denying that refugees from the war, disorder and lawlessness in the Middle East present a practical and humanitarian crisis. It is in our best interest to aid in resolving this crisis, and to do so beyond simply exhorting those in the region to help. But stepping up by accepting large numbers of refugees to our shores presents a genuine dilemma.

First, let us agree that both sides of this issue obfuscate reality. There is little doubt that considerable effort and time will go into vetting candidates for immigration. This will go far beyond typical actions by other countries. But none involved could reasonably claim that it would be perfect. Circumstances in the region preclude effective investigation, and it would not be hard for those intent on harming us from obtaining sufficient documentation and affidavits. The modern technical skills shown by ISIS and the proven reluctance of family and associates to provide warnings are both major risk factors in avoiding a mistake. And it takes but one or two mistakes to lead to events here comparable to those in Paris a few days ago.

So the issue basically comes down to the question of acceptable risk. The administration is confident that this risk is small in the context of our national interest in resolving the crisis. However it is unclear how this trade-off was reached. One cannot help but wonder if they would reach the same decision if it involved personal risk. For example, would President Obama be willing the accept one chance in a hundred that Malia or Sasha would get blown up by a suicide bomber? One chance in thousand? Obviously we don’t know the real odds, but I suspect that very few parents would accept either risk, notwithstanding humanitarian impulses.

We are a compassionate people. Suffering anywhere in the world always brings out the best in us. But political executives, like the President and our state Governors, have one overriding obligation. They must always put first and foremost the well-being and safety of those they serve. Many Governors, and not just Republicans, have expressed this obligation forcefully by rejecting Syrian refugees without assurances that risk has been effectively eliminated.

syrian-refugees-postWhether this has any legal effect is unclear, given the supremacy of federal law, but surely it should influence a thoughtful President.

Homeland Insecurity

The recent incursion on the Capital lawn by an old gent flying a gyrocopter raises a troubling question. Was it handled properly and, if not, what should have been done? My underlying concern is beautifully captured by this cartoon.

Gyrocopter

An official involved admits that this reveals a hole in our defenses, but he hastened to add that their rules of engagement wouldn’t allow use of deadly force to prevent this kind of event. He pointed out that anyone could see that this was “just an old man” and that there was no visible evidence that he was carrying explosives or other ordnance. Further, he added, what if we shot him down and he really had explosives and blew up some nice tourist lady from Bakersfield?

angry_manTo say the least, this response troubles me! Osama bin Laden was an old man, and in fact he looked a bit like this pilot. Moreover, hiding bars of Semtex explosive or even a rocket launcher isn’t very hard. But not to worry, there was no sign on the gyrocopter saying “Death to America”. I think we are entirely too squeamish for our own good. Fear of hurting some deranged geriatric is no excuse for lax protection of our vital interests. And in any case, the next deranged geriatric might not be so inoffensive.

If IGTs (Islamic Gyrocopter Terrorists) still don’t concern you, how about small, undetectable drones? If I were an ISIS commander I would be ordering my minions to bone up on this technology pronto. Joking aside, this is going to happen. And we better hope that the first attack is on a small scale so that we can get serious about the electronic jamming technology that could be an effective defense.