The Intercept
March 19, 2017
Can we breathe a sigh of relief after federal judges blocked President Donald Trump’s discriminatory executive orders? For a moment we can, but we are just a terrorism attack away from the White House gaining a new pretext for its wrathful crackdown against Muslims and immigrants.
Among the alterations in American politics since Trump’s inauguration, this may be the most frightening one: a terror attack on U.S. soil will be used by the White House as an excuse for implementing an extra-legal agenda that could only be pushed through in a time of crisis. What the courts will not allow today, what protesters will hit the streets to defend tomorrow, what even the pliant Congress would have a hard time backing — the White House is almost certainly counting on all of this changing in the wake of a domestic terrorist attack.
This macabre turn, in which terrorism becomes an opportunity rather than a curse, has ample precedents that tell us one thing: be prepared.
It wasn’t long ago that 9/11 was used as a pretext for invading Iraq. Although it was almost immediately clear that Iraq had nothing to do with the attacks on the World Trade Center and the Pentagon, Secretary of Defense Donald Rumsfeld told President George W. Bush on the evening of September 11, “Part of our response maybe should be attacking Iraq. It’s an opportunity.” Just a few years earlier, Rumsfeld, along with Paul Wolfowitz and Dick Cheney, had signed a now-infamous letter calling for the removal of Iraqi leader Saddam Hussein. The with-us-or-against-us atmosphere after 9/11 enabled them to carry out the task.
It has happened overseas, too. Vladimir Putin’s rise to power in Russia was accelerated by a series of mysterious bombings against apartment buildings across the country, and the bombings were so essential to consolidating Putin’s rule that he was suspected of organizing them. There was also, most famously, the Reichstag fire in 1933, in which the German Parliament burned to the ground, leading Adolf Hitler, the new chancellor, to warn that “there will be no mercy now. Anyone standing in our way will be cut down.”
The Trump administration has already begun laying the groundwork for extreme initiatives if — or more likely when — a terror attack occurs on U.S. soil and is tied to ISIS, al Qaeda or another Muslim group, according to civil liberties lawyers and activists. Under the guise of protecting national security, a blitz of presidential actions could target not just immigrants and Muslims but other minority groups as well as the media and the judiciary. These initiatives will be “more dire and much more severe” than Trump’s first executive order in late January against the citizens of seven Muslim-majority countries, according to Vince Warren, executive director of the Center for Constitutional Rights.
While the bad news is stark — expect the worst from Trump when an attack happens on U.S. soil — the better news is that people are already organizing to prevent the worst from happening. There is, it turns out, quite a bit that can be done to prepare for the nearly inevitable moment when the Trump administration tries to take advantage of the tragedy of a man or a woman using a bomb, a gun, a knife or a truck to kill Americans in the name of an Islamic terror group.
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The first thing to understand is that attacks by foreign-born terrorists are rare. From 1975 through 2015, a total of 3,024 Americans were killed in such attacks, with most of those occurring on 9/11, according to a recent Cato Institute report. In other words, the annual odds of being killed by a foreign-born terrorist are 1 in 3,609,709. Each of these deaths is a tragedy, of course, but they represent a fraction of the preventable fatalities from any number of causes, including spouse-on-spouse violence, traffic accidents, and even toddlers with unsecured guns.
Trump’s eagerness to exploit only a particular type of terror attack — by Muslims — was reflected in his selective reaction to two incidents in his first month in office. In late January, he remained silent when a white Christian shot dead six Muslims in a Canadian mosque. A few days later, an Egyptian with a machete attacked French soldiers at the Louvre while shouting “Allahu Akhbar.” Nobody was killed, not even the attacker — one soldier was slightly injured before the Egyptian was shot four times. Yet within hours, Trump tweeted, “A new radical Islamic terrorist has just attacked in Louvre Museum in Paris. Tourists were locked down. France on edge again. GET SMART U.S.”
His disingenuity exposes a glaring fallacy in his executive orders. The handful of Muslim-majority countries named in the orders represent a negligible threat for domestic terrorism. The few attacks in America that have involved Muslims, including 9/11, drew largely on people from Saudi Arabia, Pakistan and Egypt — but those countries were not included in either order from the Oval Office. A ruling by Judge Theodore Chuang that blocked the second order noted “strong indications that the national security purpose is not the primary purpose of the travel ban.”
The unique dynamic is that the White House has made clear its wish to impose an array of extreme and unconstitutional policies that are nearly impossible to carry out in ordinary times. Trump has previously said, for instance, that he wants to ban all Muslim immigration — “a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on,” as he famously stated during the presidential campaign. His top adviser, Steve Bannon, has even complained about the proportion of legal immigrants already in America — which he described as 20 percent of the population, though it’s actually just over 13 percent. “Isn’t the beating heart of this problem, the real beating heart of it, of what we gotta get sorted here, not illegal immigration?” Bannon asked on a radio show in 2016. “We’ve looked the other way on this legal immigration that’s kinda overwhelmed the country.”
In a way, the White House is like a pistol cocked to go off at the first touch. Warren, the head of the Center for Constitutional Rights, described the president’s early use of anti-Muslim executive orders as “a precursor, a mirror into what we’re going to be looking at” after a significant terror attack. Warren added, “I think the Trump administration will move by executive fiat for everything. It will create what’s essentially a constitutional crisis in the country.”
But Trump is not the pre-ordained winner of the crisis he will initiate.
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Michael Walzer, a political theorist who has been around long enough to have chronicled, in real time, the social movements of the 1960s, wrote in an essay earlier this month that there are two types of necessary politics against Trump. “Resistance is defensive politics, but we also need a politics of offense — a politics aimed at winning elections and, as we used to say, seizing power,” Walzer wrote. He pointed to a particularly hopeful development that others have also noted after Trump’s inauguration: local organizing against the federal government.
The women’s march the day after the inauguration was a nearly immediate example. In cities across the country, large crowds turned out to protest the new president and his far-right agenda. The sanctuary city movement has also taken root, with local leaders vowing to oppose federal orders that are unconstitutional or immoral, especially ones that involve undocumented immigrants. And key legal challenges to Trump’s executive orders have come from attorneys’ general in a variety of states who have vowed to continue their war of legal writs.
Warren describes the popular reaction to a post-terrorism crackdown as an “X factor.” In the wake of the president’s first executive order, which led to Muslims being turned away at America’s borders, airports across the country were besieged by spontaneous protests that involved thousands of people and a small army of lawyers to help immigrants and refugees who were detained by customs authorities. Boots on the ground will be crucial after the next attack, argues Ben Wizner, a prominent ACLU lawyer who earlier this month tweeted, “If/when there is an attack, we’ll need millions in the streets with a message of courage and resilience.”
Another X factor is the judiciary, which bears a larger share of responsibility than usual because both houses of Congress are controlled by the Republican Party and have shied away from fulfilling their constitutional role as a check on the executive branch. So far, federal courts have stood up to the White House. Karen Greenberg, the director of the Center on National Security at Fordham Law School, believes the judicial response to Trump’s executive orders marks a notable break from the post 9/11 era, when courts generally did not support legal challenges to government policies on terrorism, torture, surveillance and drone warfare.
“I’m a real critic of how the courts handled national security,” Greenberg said. “I think they punted entirely. But if you look at the immigration ban and some of the pushback from the courts on ISIS prosecutions and how they are being handled, the courts have woken up from their ‘I want to be asleep on national security’ stage. I think the courts may rise to the occasion.”
Trump has provided confirmation, via Twitter, of the judicial branch’s new spine and key role. After the courts shot down his first executive order, he lashed out in a series of tweets against federal Judge James Robart. The sharpest one, tweeted by Trump from his Mar A Lago estate, warned: “Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!”
The writer Mark Danner noted in a recent essay that the controversy over the first executive order may have served “the desire of the president and his advisers to stage a fight with a major institutional force not yet recumbent before him: the judiciary.” As Danner went on to explain, “the president’s assertion of his ‘unreviewable’ powers in the face of ‘so-called’ judges was not just absurd or ignorant but a bit of bait, establishing the basis for blaming the judiciary for any terrorist attack that was to come. On this he tweeted indefatigably and repeatedly.”
Another X factor is the media, which Trump has defined as a public enemy (though of course he means only the outlets that criticize him). Portions of the media, such as Breitbart, Infowars and probably Fox News, will likely support whatever crackdown the president proposes in the wake of a terrorist attack. Other parts of the media will hopefully do the work they are supposed to do. As Greenberg notes, the press will “need to be on the ground and report information before it is misrepresented.” That work can begin now, before an attack, with reporting that explains the rarity of Muslim-related terrorism in the United States and the constitutional as well as moral pitfalls of letting a demagogue turn tragedy to his own advantage.
