The Honor System

03-26-2017

The Honor System

In an interview with Michael Judge, Garry Kasparov elaborates on his off-the-cuff remark that Donald Trump's press conference resembled a Soviet press conference.

"If I recall, it was a joke made while the press conference was still going on, and I was struck by all the flags around him and the scripted questions early on. It was his first real press conference as president-elect, and it was all show and campaign-style rhetoric, despite the large backlog of important policy questions that he faced. To be fair, he actually did answer a few questions that weren’t staged, which never would have happened in the USSR. But while all traditional politicians understand the importance of messaging and perception, they realize that avoiding substantive questions only leads to more of them. During the campaign, and during his presidency, Trump has attempted—with considerable success—to transcend that norm, as with so many others. He responds instead with counterattacks and bold statements and accusations, knowing they will get more attention than subsequent fact-checks. It’s one of many ways that Americans are learning from Trump that much of their democracy was run on the honor system, on agreed standards, not laws, and now there’s someone who isn’t going to play by those rules. It has very dangerous implications, especially since this is a theme that plays well with many of his supporters.... I hope the foreign press can take the lessons they are slowly learning about covering Trump and apply them to Putin and other dictators. Call things what they are. Lies are lies. Facts are facts. Dictators are dictators. The tell-both-sides media attitude that generally works in the free world falls apart completely when dealing with a dictatorship that doesn’t operate in good faith, that lies and actively fabricates constantly. The US media are now learning this with Trump, to treat his administration like a hostile witness, or at least an unreliable narrator. Russia’s elections are a complete joke. Putin isn’t an elected leader any more than Kim Jong-un at this point, so why play along with the charade? To be “objective” or “fair”? This is how the bad guys win, because the free world’s leaders and media want to play by rules that assume fair play and a degree of scrupulousness that doesn’t exist for people like Putin, who see this tendency, accurately, as a weakness to exploit."

Form more information visit: http://www.cjr.org/q_and_a/kasparov-trump-russia-propaganda.php

I Will Faithfully Execute..

Benjamin Wittes and Quinta Jurecic ask why it is that the Federal judiciary are acting so aggressively against Donald Trump's executive orders on immigration? They argue that while there are possible legal justifications for the judicial orders, it is just as likely that the judicial resistance comes from a "judicial suspicion of Trump's oath."

"But also there is a third possibility, and we should be candid about it: Perhaps everything Blackman and Margulies and Bybee are saying is right as a matter of law in the regular order, but there’s an unexpressed legal principle functionally at work here: That President Trump is a crazy person whose oath of office large numbers of judges simply don’t trust and to whom, therefore, a whole lot of normal rules of judicial conduct do not apply. In this scenario, the underlying law is not actually moving much, or moving or at all, but the normal rules of deference and presumption of regularity in presidential conduct—the rules that underlie norms like not looking behind a facially valid purpose for a visa issuance decision—simply don’t apply to Trump. As we’ve argued, these norms are a function of the president’s oath of office and the working assumption that the President is bound by the Take Care Clause. If the judiciary doesn’t trust the sincerity of the president’s oath and doesn’t have any presumption that the president will take care that the laws are faithfully executed, why on earth would it assume that a facially valid purpose of the executive is its actual purpose? In this scenario, there are really two presidencies for purposes of judicial review: One is the presidency when judges believe the president’s oath—that is, a presidency in which all sorts of norms of deference apply—and the other is a presidency in which judges don’t believe the oath. What we may be watching here is the development of a new body of law for this second type of presidency. This, we suspect, is the true significance of all of the references in both district court opinions to the many statements made by Trump and his aides about the Muslim ban and the true purpose of the policy effectuated in both orders. These references present, of course, as discussions of whether there is truly a secular purpose to the policy in an Establishment Clause analysis using the Lemon test. But there’s at least a little more going on here than that. The lengthy recitations of large numbers of perfectly objectionable presidential statements about Muslims coexist with a bunch of other textual indicia showing not merely that the judges doubt Trump’s secular purpose but that they doubt the good faith of his purpose at all—indeed, that they suspect that he is simply lying about his own motivations. For example, Judge Chuang pointed to the fact that “the core concept of the travel ban was adopted in the First Executive Order, without the interagency consultation process typically followed on such matters” as evidence that “the national security purpose is not the primary purpose of the ban.” Given that the first order was issued “without receiving the input and judgment of the relevant national security agencies,” the national security rationale behind the order is post hoc at the very least. Judge Chuang further argues that under Lemon, it doesn’t actually matter if the national security rationale is legitimate—all that matters is that it’s secondary to the motive of religious animus. He also terms the case “highly unique,” again suggesting that he’s not describing a regular mode of judging. He’s describing a mode of engaging with a President who is acting in bad faith. In his essay on the second executive order and the Establishment Clause, Blackman alleges of Judge Leonie Brinkema’s analysis of the first executive order that, “At its heart, the court’s Establishment Clause analysis isn’t about the executive order. Rather, it is about the person who signed it.” Writes Blackman:

Judge Brinkema has applied a “forever taint” not to the executive order, but to Donald Trump himself. For example, the government defended the selection of the seven nations in the initial executive order because President Obama approved a law that singled out the same seven nations for “special scrutiny” under the visa waiver program. Judge Brinkema rejected this reasoning: “Absent the direct evidence of animus presented by the Commonwealth, singling out these countries for additional scrutiny might not raise Establishment Clause concerns; however, with that direct evidence, a different picture emerges.” That is, if Barack Obama selected these seven countries for extreme vetting, it would be lawful, because he lacks the animus. But because Donald Trump had that animus, it would be unlawful. No matter that Trump excluded forty-three other Muslim-majority nations that account for 90 percent of the global Muslim population. Even though three of the included nations are state-sponsors of terrorism! It will always a “Muslim ban” because of comments he made on the O’Reilly Factor in 2011, a policy he adopted in 2015, and abandoned after his lawyers told him it was illegal. She admits as much. “A person,” she writes, “is not made brand new simply by taking the oath of office.” Not the policy. The person. Trump.

We suspect there is a lot of truth to this. The question is whether that decoupling of the presidency from the person of the president, which we anticipated in our original essay on the oath, is quite as indefensible as Blackman assumes—or whether it’s an inevitable consequence of vesting someone as volatile and fundamentally disingenuous as Trump with “the Executive Power” of the United States of America."

Form more information visit: https://www.lawfareblog.com/revolt-judges-what-happens-when-judiciary-doesnt-trust-presidents-oath

The Making of Islamophobia

Bethany Allen-Ebrahimian tells the story of "The Making of Islamophobia Inc." through the story of the recent fracas surrounding a lecture by Jonathan Brown.

"It all started with good intentions. Brown is one of the majority of Muslims around the world who believes the Islamic State practices a warped interpretation of Islamic thought that blesses slavery, rape, and other crimes. But Brown also knows that not all Muslims are so quick to dismiss the jihadi group’s theology. Certainly the hundreds of foreign fighters who have trickled into Syria and Iraq to join its ranks find its ideas seductive. For some others, the veneer of religious authenticity used to justify Islamic State atrocities has led to a crisis of faith. And the cacophony of violence plaguing much of the Muslim world tends to drown out the voices of those most qualified to referee the religious confusion. But Brown felt that he was called to try, hence his public lecture at the International Institute of Islamic Thought in Herndon, Virginia, on Feb. 7. In the first of what he intended as a three-part series, Brown addressed slavery in Islam, hoping to combat the idea that Islam could ever condone the subjugation and exploitation of human beings. That was when he encountered a cacophony of a different sort — America’s far-right, anti-Muslim ecosystem that has adopted the same twisted interpretations of Islam that the Islamic State promotes. After the lecture, Brown endured a cascade of online attacks from conservative and alternative-right heavyweights such as Ann Coulter, Robert Spencer, and Milo Yiannopoulos, who claimed that he had actually condoned the acts he had set about to condemn. His university department was flooded with demands that he be fired. Brown is the victim of an increasingly empowered industry of Islamophobia that constricts the space for balanced and open dialogue, sidelining the very Muslims who are doing the most to promote peaceful, orthodox interpretations of Islam."

Form more information visit: https://foreignpolicy.com/2017/03/16/the-making-of-islamophobia-inc/