Is Bill Barr Picking a Fight with Apple to Distract from the Failure of Trump’s Social Media Vetting?

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To some degree, recent disclosures about Ahmed Mohammed al-Shamrani’s killing of three sailors in Pensacola make it seem like a mirror of the San Bernardino attack in 2015 in 2015. A man, steeped in Islamic propaganda, used a moment of vulnerability to attack Americans. He is killed in the attack, but not before he destroys a phone. At first, DOJ asks Apple for help getting the easier things from the phone, such as the materials stored in the iCloud account. Then, after a delay makes the most obvious work-arounds impossible, DOJ asks Apple to hack the phone, which would thereby make not just that phone accessible to law enforcement, but all iPhones vulnerable to cops, authoritarian governments, and criminals.

There’s even some reason to believe that the law enforcement officer grandstanding to use a terrorist attack as an opportunity to force Apple to weaken its products is lying both about what Apple and DOJ have respectively done, but about how certain it is that Apple is the only available option.

But investigators have been stymied in trying to access two key pieces of evidence — the gunman’s iPhones. Standing before giant photographs of two severely damaged devices, the attorney general publicly urged Apple to act.

“So far, Apple has not given us any substantive assistance,” Barr said, though aides later clarified that Apple had, in fact, given investigators access to cloud data linked to the gunman. “This situation perfectly illustrates why it is critical that investigators be able to get access to digital evidence once they have obtained a court order.”

[snip]

In a lengthy statement, Apple disputed the attorney general’s description of its role, saying the company began responding within hours of the first FBI request on Dec. 6, and has turned over “many gigabytes” of data in the case.

“Our responses to their many requests since the attack have been timely, thorough and are ongoing,” the company said. “The FBI only notified us on January 6th that they needed additional assistance — a month after the attack occurred. . . . Early outreach is critical to accessing information and finding additional options.”

[snip]

Asked Monday whether the FBI’s technical experts on cellphones had agreed with the decision to send the letter pressing Apple to open the phones, Bowdich said he did not know.

An FBI spokesperson later said the bureau’s “technical experts — as well as those consulted outside of the organization — have played an integral role in this investigation. The consensus was reached, after all efforts to access the shooter’s phones had been unsuccessful, that the next step was to reach out to start a conversation with Apple.”

But the more important comparison may pertain to the role of social media in the attack.

Almost immediately after the 2015 attack, the FBI discovered that the woman involved in the attack, Tashfeen Malik, had pledged loyalty to Abu Bakr al-Baghdadi just before the attack. That led Congress to suggest the Obama Administration hadn’t vetted Malik’s immigration processing closely enough, even though nothing in place at the time would have identified her past extremist writing.

In response, Customs and Border Patrol started laying the groundwork for a policy that seemed like dangerous overkill at the time, but that Trump nevertheless adopted: requiring visa applicants to list their social media handles so their social media activity can be vetted.

Somehow, in spite of that requirement, 17 Saudis in the US for military training were found to have jihadist material on their social media accounts, on top of al-Shamrani, and 15 of them had child porn on their social media accounts.

Barr said investigators had found evidence that 17 Saudis had through social media shared ­jihadist or anti-American material and 15 — including some of those who had shared anti-American material — were found to have had contact with or possessed child pornography.

It’s one thing for CBP to have missed Malik’s Facebook comments before they used social media to vet visa applicants.

It’s an entirely different thing to institute social media vetting, but then somehow miss that 18 people admitted onto our military bases to be trained are anti-American or pro-jihadist. All the more so given that Trump’s Muslim ban excluded Saudi Arabia — the origin of most of the 9/11 hijackers and other attempted terrorists since — even while focusing closely on Muslims from country without a history of terrorism against the US.

Plus, in spite of Barr’s vague comments explaining how a “US Attorney” reviewed child porn engaged well beyond that which George Nader pled guilty to yesterday and decided that person could return home to Saudi Arabia.

Barr said only one of those people had a “significant number” of [CP] images, and U.S. attorneys had reviewed each case and determined such people would not normally be charged with federal crimes. He said 21 cadets from Saudi Arabia had been disenrolled from their training and would be returning to the kingdom later Monday. Justice Department officials said 12 were from the Pensacola base, and nine were from other military bases.

[snip]

U.S. attorneys had independently determined the child porn did not warrant charges. Justice Department officials said the most significant case involved a cadet who possessed more than 100 images of child porn and had searched terms for child porn, according to his browser history — but even that fell below the normal threshold for a case deemed worthy of prosecution by a U.S. attorney’s office.

This seems to be part of a pattern that Ron Wyden has already complained about, the serial impunity of Saudi students who commit crimes in this country.

Normally, I oppose politicizing the response to terrorist attacks. You can’t prevent all terrorism, and the drive to do so has eroded our civil liberties.

But if you’re going to erode our civil liberties, then you better be damn sure you’re doing so for a reason. And it seems like CBP (and DOD) failed to ensure we weren’t inviting Saudis to our country to train them to be better terrorists against us in the future.

Barr wants this to be about Apple. First, however, he should be asked why the vetting Trump championed failed to work in this case.

If DOJ is going to complain that Apple isn’t degrading security, it should first explain why the last policy it took that traded privacy for security failed.

The Predictable Result of Asymmetry in Terrorism Policing: Andrew McCabe’s Demise

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I recently finished Andrew McCabe’s book.

It is very effective at what I imagine its intended purposes are. It provides some fascinating new details about the genesis of the Russian investigation. It offers a great introduction in how the FBI (at its best) can work. It gives a self-congratulatory version of McCabe’s career, including key events like the Najibullah Zazi and Boston Marathon investigations; even if McCabe had wanted to tell fully honest stories about those investigations, I’m sure the less flattering details wouldn’t have passed FBI’s publication review.

The book also says satisfyingly mean things about Trump, Jeff Sessions, and (more obliquely) Rod Rosenstein. (I think McCabe’s book release significantly explains the rumors reported as fact that Mueller’s report was imminent some weeks ago; that claim served, in part, to once again eliminate any pressure to fire Rosenstein immediately).

The latter of two, of course, implemented McCabe’s firing. McCabe’s excuse for lying to the Inspector General, which led to his firing, is one of the least convincing parts of the book (he admits he can’t say more because of his continued legal jeopardy, but he does raise it). That’s true, in part, because McCabe only deals with one of the conversations in question; there were a number of them. But he also excuses his chief lie because he was frazzled about learning of the Strzok-Page texts in the same conversation. I can understand that, but elsewhere, one of his digs against Rosenstein is how overwhelmed the Deputy Attorney General was in the wake of the Jim Comey firing. McCabe suggests, in that context, that because he had dealt with big stressful issues (like the Boston Marathon attack), he wasn’t similarly rattled. Which is why I find it disingenuous to use being frazzled for not being fully truthful to the Inspector General. Plus, virtually all defendants prosecuted for lying to the FBI (including George Papadopoulos, but not Mike Flynn, who is a very accomplished liar) are frazzled when they tell those lies; it’s a tactic the FBI uses to catch people unguarded.

I was most frustrated, however, by something that has become increasingly important in recent days: McCabe’s utter lack of awareness (at least in the book) of the import of the asymmetric focus on Islamic terrorism across his career.

After moving to counterterrorism in the mid-00s from working organized crime, McCabe became an utterly central player in the war on Islamic terror, founding the High Value Interrogation Group, and then leading the CT and National Security Divisions of FBI. He was a key player in investigations — like Zazi — that the FBI is rightly proud of.

But McCabe normalizes the choices made after 9/11 to pursue Islamic terrorism as a distinct danger. He (of course) whitewashes Jim Comey’s decision to retain the Internet dragnet in 2004 under an indefensible use of the PATRIOT Act. He argues that it is politically impossible to survive a failure to prevent an attack even though he managed the Boston Marathon attack, where FBI and NSA had some warning of Tamerlan Tsarnaev’s danger, but nevertheless got very little criticism as a result. Most remarkably, McCabe talks about Kevin Harpham’s attempted attack on the Martin Luther King Day parade, mentions as an aside that this was (obviously) not an Islamic terror attack, but offers no reflection on how Harpham’s attack undermines much of what he presents, unquestioningly, as a greater risk from Islamic terrorism (here’s a story on how Barack Obama did not get briefed on Harpham, a decision that may well have involved McCabe).

Granted, McCabe’s blind spots (at least in the book) are typical of people who have spent their lives reinforcing this asymmetry. You see it, too, in this utterly nonsensical paragraph in a largely ridiculous piece from Joshua Geltzer, Mary McCord, and Nick Rasmussen — all likewise accomplished players in the War on Just One Kind of Terrorism — at Lawfare.

The phrases “international terrorism” (think of the Islamic State and al-Qaeda) and “domestic terrorism” (think of the Oklahoma City bombing and the October 2018 shooting at a Pittsburgh synagogue) have often been a source of confusion to those not steeped in counterterrorism. The Islamic State has its roots internationally, but what makes it such a threat to Americans is, in part, its ability to influence domestic actors like Omar Mateen to kill Americans in domestic locations like Orlando, Florida. The group may be “international,” but its attackers and attacks can be, and have been, domestic—to tragic effect.

This paragraph, in a piece that admits the focus of their career has been wrong (and neglects to mention that Christchurch terrorist Brenton Tarrant named Donald Trump, along with Anders Behring Breivik, as an inspiration), suggests that the reason international terrorism is “such a threat” is because it can inspire domestic actors. The logic inherent to that paragraph is that terrorism carried out by “domestic terrorists,” inspired by a domestic white supremacist ideology is any less dangerous than terrorism carried out by people inspired by what is treated as an international ideology. International terrorism is worse than domestic terrorism, these experts argue, because it can lead to domestic terrorism.

Dead is dead. And given the significant number of white supremacists who have had experience in the military and greater tolerance for their training, white supremacists have the potential of being far more effective, as individuals, at killing than US-based Islamic terrorists.

One thing the Lawfare piece studiously avoids acknowledging is that what it calls “domestic” terrorism (the racist ideology of which they never describe) is an ideology significantly exported by the United States. Even in a piece that rightly calls for an equal focus on both white supremacist terrorism and Islamic terrorism, it ducks labeling the ideology in question. And while this WaPo piece does label the ideology in question, it bizarrely calls an attack in New Zealand carried out by an Australian a “domestic” attack.

The WaPo piece describes one problem with the asymmetric treatment of different kinds of terrorism: that governments don’t share intelligence about international violent racist ideology. In fact, in the US, such intelligence gets treated differently, if the FBI’s failure to track the networks around Frazier Glenn Miller and Eric Rudolph is any indication.

Ironically, that’s one reason that McCabe’s failure to track white supremacist terrorism in the same way he tracked Islamic terrorism led to his demise. While the network behind the election year operation that helped elect Trump involves a lot of Russians, it also clearly involves a lot of white supremacists like Nigel Farage (and David Duke), a network Russia exploited. Additionally, as I have argued (and at least one study backs) white supremacist networks provided the real fire behind the attacks on Clinton; Russia’s information operations had the effect of throwing more fuel on a blazing bonfire.

The other problem with the US government’s asymmetric treatment of terrorism is legitimacy. Labeling Islamic terrorism “foreign” and pursuing material support cases based partly on speech has had the effect of criminalizing some speech that criticizes US foreign policy, even well-deserved criticism about the effect of US killing of Muslims. By contrast, white supremacist speech, even that which  more aggressively advocates violence is treated as speech. Yes, deplatforming has begun to change that.

But we’re still not at a place where those who incite white supremacist violence are held accountable for it.

That’s how it was possible for a man to kick off a campaign by inventing lies about Mexican immigrants and how the entire Republican party, up to and including the new supposedly sane Attorney General, are permitted to pursue counterproductive policies solely so they can appear to demonize brown people.

Irrespective of the merit or not in the finding that Andrew McCabe lacked candor with the IG, he got treated the way he did because a man whose entire political career is based off feeding white resentment needed to appear to be a victim of Andrew McCabe. That act, by itself, was not about Trump’s white supremacist ideology. But it is a structure of power that is white supremacist (exacerbated by Trump’s narcissism).

We have a President Trump in significant part because this country has tolerated and even rewarded white supremacist ideology, institutionally ignoring that it poses as much of a risk as violent Islamic ideology. It would be really useful if people like Andrew McCabe spend some time publicly accounting for that fact.

The white supremacy that brought us the Trump presidency would not be possible if we had treated violent white supremacist terror as terror for the last twenty years.

Trump Refuses to Keep This Country Safe from Terrorism

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I thought a lot about two things over the weekend.

I thought about the line that disqualifies an otherwise excellent book on left wing terrorism in the 1970s, Days of Rage: “With the possible exception of the Ku Klux Klan,” author Bryan Burrough claimed close to the beginning of the book, “the United States until 1970 had never spawned any kind of true underground movement committed to terrorist acts.” The book, which spends a lot of time talking about left wing political violence in significant part stemmed out of a concern for the rights of African Americans, utterly dismissed (perhaps because it was so widely accepted it could barely be called “underground”?) America’s most persistent terrorist movement as such. The line has haunted me ever since as an example of the kind of blindness even experts have about the centrality of right wing terrorism in American history.

I thought, too, about Charlie Savage’s description in Power Wars of how Scott Brown’s team claimed that his polling showed he won the 2010 special election to replace Ted Kennedy chiefly because of perceptions of how Obama responded to Umar Farouk Abdulmutallab’s failed Christmas Eve bombing, because Brown attacked Obama for wanting to give terrorists due process. Once Republicans learned that, they doubled down, encouraging voters to become more afraid.

In a question-and-answer period following his prepared remarks, [Mitch] McConnell candidly acknowledged the political advantage of hammering away at the issue, citing Brown’s victory.

“If this approach of putting these people in U.S. courts doesn’t play in Massachusetts, I don’t know where it sells,” McConnell said, adding: “You can campaign on these issues anywhere in America.”

As Savage describes, that was when Obama started caving on his efforts to adopt a more reasonable approach to terrorism, first reversing Eric Holder’s decision to try the 9/11 defendants in NYC, then launching an 18-month campaign to drone kill Anwar al-Awlaki, and ultimately failing to close Gitmo or hold torturers to account.

Now, as Savage tells it, all that arose solely out of the Abdulmutallab case. He barely covered an event that preceded it, one where Republicans very much set up the Brown lines: when Pete Hoekstra leaked information obtained via FISA collection showing that Nidal Hasan had had communications with Awlaki before his attack on Fort Hood, using it to suggest the Obama Administration should have prevented the Fort Hood attack by adequately analyzing collected communications. Republican efforts to exact a cost from Obama for a more reasonable approach to terrorism (which included demanding that Obama call Hasan’s attack on a military target, terrorism) actually preceded the Abdulmutallab attack, and it was far more deliberate than made out.

The point is, though, that it had the short term desired effect of breaking the Democratic super majority in the Senate and the longer term effect of making Obama reactive on terrorism, rather than proactive (even through the time, in 2013, when Massachusetts was successfully attacked at the Boston Marathon and polls showed people actually didn’t want any more limits on civil liberties). Republicans deliberately and successfully forced a president who wanted to be something other than a War on Terror President to instead be just that.

And now, 8 years after Mitch McConnell gleefully said Republicans should run on hard nose accountability for terrorist attacks everywhere, Republicans are whining that Democrats are treating Trump’s actions in advance of and in the wake of serial right wing terrorist attacks last week as a political issue.

In the wake of last week’s terrorist attacks, we have returned to a discussion we always have after such things, why we call Islamic terrorism terror, but call the targeting of black churches and Jewish synagogues hate crimes and the attempted assassination of Democratic figures bomb attacks. Popehat wrote a worthy lawsplainer, from the viewpoint of a former prosecutor, why domestic terrorists don’t get (immediately) labeled as terrorist attacks. 9/11 Commission staffer Daniel Byman acknowledged that while we don’t have the same legal structure for pursuing domestic terrorist as we do terrorism with a foreign nexus, for the Pittsburgh case, at least, we should probably use the T-word.

I’ve talked about why it is important to call domestic terrorism terrorism here: First, because not doing so results in an equal protection problem, where Muslims are more likely to be targeted in a sting because the FBI has greater access to the communications of still-innocent people with suspect people overseas. And, because calling something terrorism conceives of the possibility of a supporting network, and investigating that network might prevent deaths, such as those perpetrated by the networks of Eric Rudolph or Kevin Harpham.

But the government may not call these acts terrorism. That’s true, in part, because DOJ has invented a separate category to criminalize (impose the death penalty on) hateful motives with hate crimes designation. In addition, Jeff Sessions’ DOJ has adopted a deliberate policy of record-keeping to try to claim that the greatest threats come from outside the country, which is paralleled by their thus far unsuccessful attempt to brand the (US-born) MS-13 gang both as a threat sourced from Central American and as a threat to rival ISIS.

Trump’s effort to brand a group of refugees 1,000 miles from the border as a more urgent threat to the country than corruption or climate change or domestic gun violence — an effort which likely had a tie to both Cesar Sayoc’s terrorist attempt and Robert Bowers’ mass killing — is more of the same, an effort to claim that the most critical threats are foreign and anything he deems a threat is therefore un-American, also foreign.

Ultimately, the reason why the government won’t call last week’s attacks terrorism, however, is precisely the reason they should. Call them terror attacks, and the networks of support and enablers get investigated rather than just isolated men treated as lone wolves. Call them terror attacks, and we start to ask what responsibility Lou Dobbs or Steve King or Chris Farrell (or the people who vote for and fund them) — or Donald Trump — have for the attacks, in the same way we held Anwar al-Awlaki responsible for his role in the terrorist attacks that Scott Brown exploited to get elected.

Byman describes correctly how contentious this can be, because those espousing the same policies as terrorists don’t want to be associated with those terrorist acts.

[D]omestic terrorism often has a bigger political impact than jihadi violence. A foreign-based attack brings America together in the face of tragedy. But right-wing (and left-wing) violence is more likely to divide the country. Just this week, for example, 56-year-old Cesar Sayoc reportedly sent explosive packages to CNN, Democratic politicians, and others seen as “enemies” of Trump. Some right-wing voices immediately embraced conspiracy theories rather than recognizing his activities for what it was. Domestic terrorists poke at bigger political wounds than do jihadis, with at least some Americans sympathizing with their cause even as they reject their violent means.

In turn, observers often avoid the word “terrorism” because peaceful proponents of right-wing and left-wing causes don’t want to be lumped together, even by weak association, with terrorists. We can and should recognize that most political groups of all stripes abhor violence. Doing so—while also acknowledging that the groups and individuals who don’t belong in a separate category—will better enable the United States to isolate extremists and cut them off before the next tragedy.

Which is why this post bears the headline, “Trump refuses to keep this country safe from terrorism” rather than Trump fosters terrorism, even if I believe the latter to be the case.

Because until the time those willing to coddle Trump’s racism in the name of tribal loyalty are defeated politically, they will want to pitch questions about what to label Cesar Sayoc and Robert Bowers’ actions as an attack on themselves.

Instead, let’s make it an attack on Donald Trump’s basic competence as President, one the Republicans themselves, from top to bottom, have embraced.

It is the Republican party of Karl Rove and Mitch McConnell and Scott Brown and (Trump Ambassador to the Netherlands) Pete Hoekstra that says a President who won’t keep the country safe from terrorism must be defeated politically. Me, I’d rather deal with all this domestic terrorism by first closely tracking those accused of domestic violence (which would have the effect of preventing non-ideological mass killings along with the ideological mass killings and attempts) and by noting that under George W Bush and Obama, the FBI was actually pretty good at discovering right wing terrorism without the tools they have against Islamic terrorism. I’d rather Democrats run on the fear of losing health insurance or the impact of climate change or gun violence generally.

But not Republicans. Republicans believe that a President who refuses to take a very aggressive approach to terrorism should not be President. So for those Republicans, let’s make this an issue not of the ways Trump’s network fostered actions like we saw last week, but how Trump’s Administration has chosen not to combat terrorism.

In Dismissing Ricin Charge Against White Supremacist, Judge Throws Enforcement of Bioterrorism Law into Chaos

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As pointed out first by Nick Watson in the Gainesville (Georgia) Times and then fleshed out further by Chris Joyner in the Atlanta Journal-Constitution, US District Judge Richard Story on September 21 dismissed a charge of possession of the deadly poison ricin against William Christopher Gibbs. Gibbs had been identified after his arrest by the Southern Poverty Law Center’s Hatewatch as a member of the bizarre Georgia Church of Creativity:

Gibbs claims membership in the “Georgia Church of Creativity,” a white supremacy sect that professes “race is our religion,” that the “white race is nature’s finest,” and that “racial loyalty is the greatest of all honors, and racial treason is the worst of all crimes.”

In his indictment, Gibbs was charged by a grand jury:

In his order directing that the charge be dismissed, Judge Story frames his decision as being due to a mere “clerical error” by the government in drawing up the underlying law and fleshing out the details in subsequent publication of rules. As Joyner described it:

A north Georgia white supremacist arrested last year for alleged possession of the deadly toxin ricin is no longer facing federal charges after a judge dismissed the case — on a technicality that exposes a regulatory failure.

In an order signed Sept. 21, U.S. District Court Judge Richard Story agreed with the man’s legal team that changes to federal law in 2004 and regulatory edits in 2005 inexplicably excluded ricin from the criminal charge of possession of illegal biological toxins known as “select agents.”

The huge problem here is that ricin is not the only agent that now, due to this error, falls outside the list of those proscribed from possession. Congress delegates the development and maintenance of the list of “select agents” to which this law applies to the Department of Health and Human Service for those agents that are human pathogens or toxins and to USDA for those agents that affect livestock or crops. The law also recognizes that some agents on these two lists will overlap, posing threats both to human and agricultural targets.

As Story details in his order, Congress revised the underlying law in late 2004. The list of select agents at that time showed clearly that ricin fell squarely within the purview of the law. But just a few months later, in early 2005, HHS revised its list and in this process, the entire non-overlapping list of human agents suddenly moved to a differently numbered section as it was published. That section number is not listed in the language in the 2004 revision, and so in ruling that Gibbs did not violate the law in possessing ricin, he is in effect making the entire HHS non-overlapping list exempt from the law. That means that under his interpretation, possessing the worst of the worst of the human pathogens or toxins, including even smallpox, cannot be charged under this law.

Here is the language of 18 US Code§ 175b(c), the section cited by the grand jury in the Gibbs indictment:

(c)UNREGISTERED FOR POSSESSION.—
(1)SELECT AGENTS.—
Whoever knowingly possesses a biological agent or toxin where such agent or toxin is a select agent for which such person has not obtained a registration required by regulations under section 351A(c) of the Public Health Service Act shall be fined under this title, or imprisoned for not more than 5 years, or both.
(2)CERTAIN OTHER BIOLOGICAL AGENTS AND TOXINS.—
Whoever knowingly possesses a biological agent or toxin where such agent or toxin is a biological agent or toxin listed pursuant to section 212(a)(1) of the Agricultural Bioterrorism Protection Act of 2002 for which such person has not obtained a registration required by regulations under section 212(c) of such Act shall be fined under this title, or imprisoned for not more than 5 years, or both.

This part of the law was from the 2004 revision we discussed earlier. In his decision, Story notes that the reading of the whole of 18 US Code§ 175b directs us to the first part of it to find where the list of select agents can be found. It reads:
(a)
(1)
No restricted person shall ship or transport in or affecting interstate or foreign commerce, or possess in or affecting interstate or foreign commerce, any biological agent or toxin, or receive any biological agent or toxin that has been shipped or transported in interstate or foreign commerce, if the biological agent or toxin is listed as a non-overlap or overlap select biological agent or toxin in sections 73.4 and 73.5 of title 42, Code of Federal Regulations, pursuant to section 351A of the Public Health Service Act, and is not excluded under sections 73.4 and 73.5 or exempted under section 73.6 of title 42, Code of Federal Regulations.
(2)
Whoever knowingly violates this section shall be fined as provided in this title, imprisoned not more than 10 years, or both, but the prohibition contained in this section shall not apply with respect to any duly authorized United States governmental activity.
The problem is when we move to the current version  of these lists, found here, the numbering for the sections is off when we look at the lists, we see that the entire HHS non-overlapping list is found in section 73.3 and not in 73.4 or 73.5. The agents found in 73.3 are the worst of the worst of agents feared as biological weapons. Even smallpox is on that part of the list, and so, by Story’s ruling, now excluded from prosecution.
In his order, Story relies on this garbled numbering to dismiss the charge:
As described above, § 175b defines “select agent,” as a “biological agent
or toxin” that is listed in 42 C.F.R. § 73.4 or § 73.5. This language is
unambiguous. And in defining “select agent,” the statute does not reference a
non-exhaustive list or provide examples; rather, it says what the term “means.”
42 U.S.C. § 175b(d)(l) (emphasis added). ‘”[M]eans’ denotes an exhaustive
defmition[.]” StanselL 704 F.3d at 915 filth Cir. 2013) (citing United States v.
Probel. 214 F.3d 1285, 1288-89 (11th Cir.2000)). Thus, “[w]hen a statutory
definition declares what a term ‘means’ rather than ‘includes/ any meaning not
stated is excluded.” Id, (citing Colautti v. Franklin, 439 U.S. 379, 392-93 &
n. 10 (1979)). Here, neither 42 C.F.R. § 73.4 nor § 73.5 include ricin. The
statute does not reference-and thereby excludes-any other sections of the
C.F.R. So, applying the statutory definition, as the Court is bound to do, the
unavoidable conclusion is that “select agent” under 18 U.S.C. § 175b does not
include ricin.2
Story even knows how the garbled numbering came about:
In 2004, as part of the Intelligence Reform and Terrorism Prevention
Act, Congress changed the reference from “Appendix A of part 72” to Part 73.
Pub. L. 108-458, 118 Stat. 3638, § 6802(d). This had the effect of
criminalizing the possession of “a non-overlap or overlap select biological
agent or toxin in sections 73.4 and 73.5 of Title 42” of the C.F.R. However,
three months later, HHS re-formatted its regulations, which, in relevant part,
resulted in its list of select agents and toxins-including ricin-being moved to a
section of the C.F.R. (§ 73.3) that is not referenced in 18 U.S.C. § 175b.
Story’s ruling is technically correct and is a defense attorney’s dream. But his justification of it is infuriating:
After HHS overhauled its regulatory numbering scheme, Congress had ample opportunity
to amend the statute to make its definition of “select agent” comport to the
Government’s interpretation. It has been 14 years, and Congress is yet to do
so. And there are plausible explanations why. For instance, Congress may
have decided that the unregistered possession of ricin, alone, is not conduct
sufficiently culpable to justify the commission of a federal crime. Or, Congress
may have assumed that the illegality of having certain biological agents and
toxins, like ricin, for nefarious purposes is sufficiently encapsulated in other
statutory provisions. See 18 U.S.C. § 175. The Court cannot say, but it is not
for the Court to disregard a clear statutory definition in favor of absent
language that may or may not have been excluded purposefully.
We are not talking here about a single agent, ricin, being left off the list due to a clerical error. The renumbering left the entire HHS non-overlapping list of agents out of the referenced sections. How on earth could Story believe that Congress would suddenly decide, in early 2005,  that the entire HHS non-overlapping list was no longer of concern? Granted, anthrax is on the overlap list and so is still covered under Story’s interpretation, but it should be pointed out that the Amerithrax investigation of the 2001 anthrax attacks was in full gear in 2005 in its march toward hounding Bruce Ivins to his death, so bioterror was a very high priority for Congress and law enforcement at the time of this reclassification. In fact, the boondoggle BioWatch program was launched in 2003 and so in 2005, the generalized fear of bioweapons was pervasive. Also, don’t forget the role of bioweapons in general in the Bush Administration run-up to the invasion of Iraq in 2003, complete with Colin Powell’s fake vial of anthrax.
Further evidence of the government’s intent on the select agent list can be found when one looks for the list itself. For example, this listing clearly shows the government had no intent to exclude the HHS non-overlapping agents and cites relevant statutory authority.
Story attempts, in part, to wriggle out of the deep hole into which he has dug himself by pointing out other ways that Gibbs could be charged. From a footnote in the order:
2 The Court notes, however, that the possession of ricin is not a wholly legal
endeavor. To the contrary, 18 U.S.C. § 175(a) provides:
Whoever knowingly develops, produces, stockpiles, transfers, acquires,
retains, or possesses any biological agent, toxin, or delivery system for
use as a weapon,… or attempts, threatens, or conspires to do the same,
shall be fined under this title or imprisoned for life or any term of years,
or both.
In assessing the constitutionality of this provision under the vagueness doctrine, the
Eleventh Circuit held, “The statute provides a person of ordinary intelligence with fair
warning that possessing castor beans, while knowing how to extract ricin, a biological
toxin, from the beans, and intending to use the ricin as a weapon to kill people, is
prohibited.” United States v. Crump, 609 F. App’x 621, 622 (11th Cir. 2015) (citing
United States v. Lebowitz, 676 F.3 d 1000, 1012 (llth Cir.2012) (per curiam)).

Interestingly, when I went back to look at one of my posts on James Everett Dutschke, who was charged with possessing ricin in Mississippi in 2013, I see that he was indeed charged under 18 U.S.C. § 175(a).

The damage that Story has done in this ruling may not be limited solely to the HHS non-overlapping agents being left out of the law. Another aspect of the garbled re-numbering of sections is that § 73.5 is referenced as a list of proscribed agents. In reality, the section is headed “Exemptions for HHS select agents and toxins”. I would argue that this is further evidence of a simple error and not legislative intent, because it renders the bill unintelligible. Instead of a list of banned agents, it is a list of those that are exempt from the law due to their use in laboratories for diagnosis or research. Although Story does make passing reference to the differences among those agents that are on the list to be banned, those that are excluded and those that are exempt, I fear that opponents of biological research could latch onto Story’s ruling in an attempt to argue that shipment of these research or diagnostic samples could be prosecuted as bioterrorism. That could have a chilling impact on research to protect us from these very agents.

Congress clearly needs to fix this mess, and fix it quickly. Simple language adjustment in 18 US Code§ 175b(a)(1) could restore the law to applying to the proper lists of agents while excluding or exempting those for which it is appropriate.

Brett Kavanaugh Called John Yoo His “Magic Bullet”

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And Bill Burck thinks American citizens should not know that fact before Kavanaugh gets a lifetime appointment.

10 Years of emptywheel: Key Non-Surveillance Posts 2013-2015

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Happy Birthday to me! To us! To the emptywheel community!

On December 3, 2007, emptywheel first posted as a distinct website. That makes us, me, we, ten today.

To celebrate, over the next few days, the emptywheel team will be sharing some of our favorite work from the last decade. I’ll be doing 4 posts featuring some of my most important or — in my opinion — resilient non-surveillance posts, plus a separate post bringing together some of my most important surveillance work. I think everyone else is teeing up their favorites, too.

Putting together these posts has been a remarkable experience to see where we’ve been and the breadth of what we’ve covered, on top of mainstays like surveillance. I’m really proud of the work I’ve done, and proud of the community we’ve maintained over the years.

For years, we’ve done this content ad free, relying on donations and me doing freelance work for others to fund the stuff you read here. I would make far more if I worked for some free-standing outlet, but I wouldn’t be able to do the weedy, iterative work that I do here, which would amount to not being able to do my best work.

If you’ve found this work valuable — if you’d like to ensure it remains available for the next ten years — please consider supporting the site.

2013

What a Targeted Killing in the US Would Look Like

Amid now-abandoned discussions about using the FISA court to review targeted killing, I pointed out that a targeted killing in the US would look just like the October 28, 2009 killing of Imam Luqman Abdullah.

Article II or AUMF? “A High Level Official” (AKA John Brennan) Says CIA Can Murder You

When the second memo (as opposed to the first 7-page version) used to authorize the killing of Anwar al-Awlaki, it became clear that OLC never really decided whether the killing was done under Article II or the AUMF. That’s important because if it’s the latter, it suggests the President can order anyone killed.

John Brennan Sworn in as CIA Director Using Constitution Lacking Bill of Rights

I know in the Trump era we’re supposed to forget that John Brennan sponsored a whole lot of drone killing and surveillance. But I spent a good deal of the Obama Administration pointing that out. Including by pointing out that the Constitution he swore to protect and defend didn’t have the First, Fourth, Fifth, and Sixth amendment in it.

2014

The Day After Government Catalogs Data NSA Collected on Tsarnaevs, DOJ Refuses to Give Dzhokhar Notice

I actually think it’s unreasonable to expect the government’s dragnets to prevent all attacks. But over and over (including with 9/11), NSA gets a pass when we do reviews of why an attack was missed. This post lays out how that happened in the Boston Marathon case. A follow-up continued that analysis.

A Guide to John Rizzo’s Lies, For Lazy Journalists

Former CIA General Counsel John Rizzo lies, a lot. But that doesn’t seem to lead journalists to treat his claims skeptically, nor did it prevent them from taking his memoir as a statement of fact. In this post I summarized all the lies he told in the first 10 pages of it.

Obama to Release OLC Memo after Only 24 Congressional Requests from 31 Members of Congress

Over the year and a half when one after another member of Congress asked for the OLC memos that authorized the drone execution of Anwar al-Awlaki, I tracked all those requests. This was the last post, summarizing all of them.

The West’s Ideological Vacuum

With the rise of Trump and the success of Russia intervening in US and European politics, I’ve been talking about how the failures of US neoliberal ideology created a vacuum to allow those things to happen. But I’ve been talking about the failures of our ideology for longer than that, here in a post on ISIS.

KSM Had the CIA Believing in Black Muslim Convert Jihadist Arsonists in Montana for 3 Months

There weren’t a huge number of huge surprises in the SSCI Torture Report for me (indeed, its scope left out some details about the involvement of the White House I had previously covered). But it did include a lot of details that really illustrate the stupidity of the torture program. None was more pathetic than the revelation that KSM had the CIA convinced that he was recruiting black Muslim converts to use arson in Montana.

2015

The Jeffrey Sterling Trial: Merlin Meets Curveball

A big part of the Jeffrey Sterling trial was CIA theater, with far more rigorous protection for 10 year old sources and methods than given to 4 year old Presidential Daily Briefs in the Scooter Libby trial. Both sides seemed aware that the theater was part of an attempt, in part, to help the CIA gets its reputation back after the Iraq War debacle. Except that the actual evidence presented at trial showed CIA was up to the same old tricks. That didn’t help Sterling at all. But neither did it help CIA as much as government prosecutors claimed.

The Real Story Behind 2014 Indictment of Chinese Hackers: Ben Rhodes Moves the IP Theft Goal Posts

I’ve written a lot about the first indictment of nation-state hackers — People’s Liberation Army hackers who compromised some mostly Pittsburgh located entities, including the US Steel Workers. Contrary to virtually all the reporting on the indictment, the indictment pertained to things we nation-state hack for too: predominantly, spying on negotiations. The sole exception involves the theft of some nuclear technology from Westinghouse that might have otherwise been dealt to China as part of a technology transfer arrangement.

Obama’s Terrorism Cancer Speech, Carter’s Malaise Speech

In response to a horrible Obama speech capitulating to Republican demands he treat the San Bernardino attack specially, as Islamic terrorism, I compared the speech to Jimmy Carter’s malaise speech. Along the way, I noted that Carter signed the finding to train the mujahadeen at almost the exactly moment he gave the malaise speech. The trajectory of America has never been the same since.

Other Key Posts Threads

10 Years of emptywheel: Key Non-Surveillance Posts 2008-2010

10 Years of emptywheel: Key Non-Surveillance Posts 2011-2012

The Arpaio Pardon: You’re Not the Audience

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In the wake of yet another deranged speech from the president — and his seeming promise to pardon Joe Arpaio — the pundit class has taken to explaining how outrageous an Arpaio pardon would be. Such analysis often focuses on what it would symbolize: which is usually described as some proof that Trump doesn’t respect judges, the law, or by others as yet more evidence Trump coddles racists.

I don’t disagree with any of that analysis. But I think it misunderstands the audience for the pardon.

As things move forward, Trump will increasingly retain support among his base — who are, to a significant degree, the racists who marched in Charlottesville and the racists who elected him by 10 points in South Carolina over a Christian Conservative candidate. Trump will manage to hold onto power to the extent that his base can sufficiently scare people — more moderate Republican voters, Republican politicians, counter-protestors — such that they won’t act against Trump. But the formula by which that base succeeds will depend on Trump’s other, more respectable, base: cops.

As I pointed out repeatedly during the election, while some dissidents objected, the National Fraternal Order of Police and many other police groups stood by Trump, even after the Access Hollywood video made it clear the candidate endorsed sexual assault. Trump continues to feed this base, with repeated tributes to cops’ roles in keeping “us” “safe.”

Meanwhile, Brennan Center’s Mike German has started to track a disturbing trend. I believe he, like me, thinks the FBI is generally adequate at infiltrating white supremacist groups to disrupt the most outrageous attacks. But what law enforcement is not doing is policing right wing violence at protests the same way it polices left protests.

There have been a number of protests over the last six months where the police — and this is in Portland, Oregon, two in Berkeley, California, one in Sacramento, California, one in Huntington Beach, California — where these protests were well-advertised within the far right movement as, “Come and beat somebody up.” And yet the police response wasn’t adequate enough to prevent these running street battles. In fact, it appeared the police were standing back and allowing these street battles to go on, which only meant the next rally people were going to be better prepared to commit more violence. And it conditioned these groups that have been hyper-violent in the past, these far right groups, to come expecting the police would let you commit acts of violence.

In Portland, Oregon, the police actually let the people from the militia groups participate in arresting their political opponents. That was also true in Huntington Beach, where it’s almost like the police are sanctioning them to apprehend people and bring them to the police, which is extraordinarily dangerous to give these groups the idea that they have the authority to put hands on people, much less put hands on their political opponents.

So I wasn’t surprised to see the violence getting out of hand, and I think we as a nation have to have a serious conversation with our local law enforcement and with the federal government. I’m sure the FBI was aware of any number of people coming to this protest who were subjects of domestic terrorism investigations. Why was there not a more robust response?

Particularly since we see over-policing of non-violent protests by groups like Occupy, Black Lives Matter, Standing Rock anti-pipeline protests, not to mention just regular political conventions. The Republican National Convention, you have troops there just to manage the crowds. So I don’t understand why in these latest series of events, where groups that have a history of violence and are advocating that they’re going to bring people to be violent, somehow the police seem to be caught off guard.

As he explains what I laid out above. Trump can retain power — which will increasingly require grabbing authoritarian powers — by enabling his street thugs to beat up the government’s opponents.

If you look at the ways authoritarian governments obtain police powers, this is exactly how they do it. They sort of turn a blind eye to street thuggery and allow people to commit political violence against opponents of the government. That street violence becomes unbearable for the public, who demand that the government do something about it so the government can justify stopping protests altogether. And, of course, what the government is really interested in is stopping protests against government policies. We’re seeing that kind of thing, where there are a number of bills in state legislatures that would remove civil liability from people who run over protesters in the street. That’s taken on a very disturbing aspect with the latest murder in Charlottesville.

So while feeding his explicitly racist base with hateful rhetoric is important, it’s even more important to ensure that the cops remain with him, even as he fosters violence.

There is no better way to do that than to convey to police that they can target brown people, that they can ignore all federal checks on their power, with impunity (this is probably one key reason why Trump has given up his efforts to oust Sessions, because on policing they remain in perfect accord).

There is no better way to keep the support of cops who support Trump because he encourages their abuses then by pardoning Arpaio for the most spectacular case of such abuses.

You’re not the audience for this pardon. The cops are.

Trump Takes 2 Hours to Call Vehicular Manslaughter Terrorism in Barcelona, Still Won’t in Charlottesville

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At around 6PM Barcelona time (12 PM ET), a van drove into pedestrians on Barcelona’s Ramblas walkway. Authorities recently announced that 13 people were killed and at least 50 others wounded. Police have arrested Driss Oukabir, a Moroccan immigrant (see update).

At precisely 2PM ET, just two hours after the attack, Trump called it terrorism.

Here’s what Trump has tweeted about the vehicular manslaughter attack in Charlottesville on Saturday.

At 1:19PM Trump said we must unite.

At 1:42 Nazi James Alex Fields Jr drove his car into Heather Heyer and other counterprotestors, killing Heyers and injuring at least 19 others.

It wasn’t until 3:33 when Trump made a statement, condemning violence “on many sides.”

[W]e’re closely following the terrible events unfolding in Charlottesville, Virginia.  We condemn in the strongest possible terms this egregious display of hatred, bigotry and violence, on many sides.  On many sides.  It’s been going on for a long time in our country.  Not Donald Trump, not Barack Obama.  This has been going on for a long, long time.

It has no place in America.  What is vital now is a swift restoration of law and order and the protection of innocent lives.  No citizen should ever fear for their safety and security in our society, and no child should ever be afraid to go outside and play, or be with their parents, and have a good time.

I just got off the phone with the Governor of Virginia, Terry McAuliffe, and we agreed that the hate and the division must stop, and must stop right now.  We have to come together as Americans with love for our nation and true affection — really — and I say this so strongly — true affection for each other.

Our country is doing very well in so many ways.  We have record — just absolute record employment.  We have unemployment, the lowest it’s been in almost 17 years.  We have companies pouring into our country.  Foxconn and car companies, and so many others, they’re coming back to our country.  We’re renegotiating trade deals to make them great for our country and great for the American worker.  We have so many incredible things happening in our country.  So when I watch Charlottesville, to me it’s very, very sad.

I want to salute the great work of the state and local police in Virginia — incredible people — law enforcement, incredible people — and also the National Guard.  They’ve really been working smart and working hard.  They’ve been doing a terrific job.  The federal authorities are also providing tremendous support to the governor.  He thanked me for that.  And we are here to provide whatever other assistance is needed.  We are ready, willing, and able.

Above all else, we must remember this truth:  No matter our color, creed, religion or political party, we are all Americans first.  We love our country.  We love our God.  We love our flag.  We’re proud of our country.  We’re proud of who we are.  So we want to get the situation straightened out in Charlottesville, and we want to study it.  And we want to see what we’re doing wrong as a country, where things like this can happen.

My administration is restoring the sacred bonds of loyalty between this nation and its citizens, but our citizens must also restore the bonds of trust and loyalty between one another.  We must love each other, respect each other, and cherish our history and our future together.  So important.  We have to respect each other.  Ideally, we have to love each other.

He then posted several tweets of video from his stilted speech, invoking the racist Americans First pledge.

He eventually got around to offering condolences to Heather Heyer’s family that night, though not by name, and offered “best regards” to “all of those injured.”

Trump finally made some more appropriate prepared comments on Monday, calling out the KKK, neo-Nazis, and white supremacists specifically (though also mentioning “other hate groups”).

As I said on Saturday, we condemn in the strongest possible terms this egregious display of hatred, bigotry, and violence.  It has no place in America.

And as I have said many times before:  No matter the color of our skin, we all live under the same laws, we all salute the same great flag, and we are all made by the same almighty God.  We must love each other, show affection for each other, and unite together in condemnation of hatred, bigotry, and violence.  We must rediscover the bonds of love and loyalty that bring us together as Americans.

Racism is evil.  And those who cause violence in its name are criminals and thugs, including the KKK, neo-Nazis, white supremacists, and other hate groups that are repugnant to everything we hold dear as Americans.

We are a nation founded on the truth that all of us are created equal.  We are equal in the eyes of our Creator.  We are equal under the law.  And we are equal under our Constitution.  Those who spread violence in the name of bigotry strike at the very core of America.

Two days ago, a young American woman, Heather Heyer, was tragically killed.  Her death fills us with grief, and we send her family our thoughts, our prayers, and our love.

We also mourn the two Virginia state troopers who died in service to their community, their commonwealth, and their country.  Troopers Jay Cullen and Burke Bates exemplify the very best of America, and our hearts go out to their families, their friends, and every member of American law enforcement.

These three fallen Americans embody the goodness and decency of our nation.  In times such as these, America has always shown its true character:  responding to hate with love, division with unity, and violence with an unwavering resolve for justice.

As a candidate, I promised to restore law and order to our country, and our federal law enforcement agencies are following through on that pledge.  We will spare no resource in fighting so that every American child can grow up free from violence and fear.  We will defend and protect the sacred rights of all Americans, and we will work together so that every citizen in this blessed land is free to follow their dreams in their hearts, and to express the love and joy in their souls.

Just hours later, he bitched that the media didn’t celebrate his belated, halfhearted statement.

Wednesday, he finally got around to naming Heyer on Twitter.

He of course then made off the cuff comments at an announcement on infrastructure. After explaining the delay in condemning white supremacists because he wanted to wait until he had the facts, he refused to call the attack terrorism.

THE PRESIDENT:  I didn’t know David Duke was there.  I wanted to see the facts.  And the facts, as they started coming out, were very well stated.  In fact, everybody said, “His statement was beautiful.  If he would have made it sooner, that would have been good.”  I couldn’t have made it sooner because I didn’t know all of the facts.  Frankly, people still don’t know all of the facts.

It was very important — excuse me, excuse me — it was very important to me to get the facts out and correctly.  Because if I would have made a fast statement — and the first statement was made without knowing much, other than what we were seeing.  The second statement was made after, with knowledge, with great knowledge.  There are still things — excuse me — there are still things that people don’t know.

I want to make a statement with knowledge.  I wanted to know the facts.

Q    Two questions.  Was this terrorism?  And can you tell us how you’re feeling about your chief strategist, Stephen Bannon?

THE PRESIDENT:  Well, I think the driver of the car is a disgrace to himself, his family, and this country.  And that is — you can call it terrorism.  You can call it murder.  You can call it whatever you want.  I would just call it as “the fastest one to come up with a good verdict.”  That’s what I’d call it.  Because there is a question:  Is it murder?  Is it terrorism?  And then you get into legal semantics.  The driver of the car is a murderer.  And what he did was a horrible, horrible, inexcusable thing.

He went on to complain that the press had treated some “fine people” protesting alongside Nazis unfairly.

THE PRESIDENT:  So you know what, it’s fine.  You’re changing history.  You’re changing culture.  And you had people — and I’m not talking about the neo-Nazis and the white nationalists — because they should be condemned totally.  But you had many people in that group other than neo-Nazis and white nationalists.  Okay?  And the press has treated them absolutely unfairly.

Now, in the other group also, you had some fine people.  But you also had troublemakers, and you see them come with the black outfits and with the helmets, and with the baseball bats.  You had a lot of bad people in the other group.

Then, this morning, in response to Lindsey Graham’s (among others) criticism of those comments, Trump lashed out.

As of this moment, Trump still hasn’t called the terrorist attack in Charlottesville a terrorist attack (to say nothing of mentioning the attack on a Minnesota mosque last week).

Update: According to later reports Oukabir voluntarily went to the authorities and reported his documents had been stolen.

Senate Judiciary Committee Republicans Have No Excuse for Not Doing Something about White Supremacist Violence

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Last I checked, the following Republicans on the Senate Judiciary Committee have criticized white supremacists, violence, and/or Trump’s appeasement of the former in Charlotteville.

Chuck Grassley, Senate Judiciary Committee Chair:

What ” WhiteNatjonalist” are doing in Charlottesville is homegrown terrorism that can’t be tolerated anymore that what Any extremist does

Orrin Hatch, President pro tempore:

We should call evil by its name. My brother didn’t give his life fighting Hitler for Nazi ideas to go unchallenged here at home

Their tiki torches may be fueled by citronella but their ideas are fueled by hate, & have no place in civil society.

Lindsey Graham, Chair of Subcommittee on Crime and Terrorism:

The South Carolina Republican called on Attorney General Jeff Sessions to go to Virginia and “personally handle domestic terrorism investigations” and alleged civil rights abuses by the Ku Klux Klan and neo-Nazis “who took this young woman’s life.”

Graham was referring to Heather Heyer, 32, who was killed when a car ran into a group of counter-protesters Saturday in Charlottesville where white supremacists and neo-Nazis were holding a “Unite the Right” rally. Many more were injured.

Graham additionally proposed the Departments of Justice and Homeland Security form a task force on the threat of white supremacist groups and report back to Congress with potential solutions for cracking down on them.

“This is an opportunity for the Trump administration to come down like a hammer on white supremacists,” Graham said during a news conference in his Columbia office. “And I hope they do.”

John Cornyn, Chair of Subcommittee on Border Security and Immigration and Senate Majority Whip:

No place for the bigotry & hate-filled violence in . These actions should be condemned in the strongest possible terms.

And (update, from August 17):

We’ve all been shocked that the unhealed wounds of the nation’s racial divide flared up in such a surprising and disturbing way,” Cornyn said in a Chronicle interview. “I think the president had an opportunity to send a message that would unite America behind our common resolve to heal those wounds and unite our country, and unfortunately I don’t think he did that.”

Ted Cruz, Chair of Subcommittee on the Constitution, who while Chair of the Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts, had a hearing on the importance of naming Islamic terrorism Islamic terrorism:

It’s tragic and heartbreaking to see hatred and racism once again mar our great Nation with bloodshed. Heidi’s and my prayers are with the loved ones of those killed and injured in the ongoing violence in Charlottesville. The First Amendment protects the rights of all Americans to speak their minds peaceably, but violence, brutality, and murder have no place in a civilized society.

The Nazis, the KKK, and white supremacists are repulsive and evil, and all of us have a moral obligation to speak out against the lies, bigotry, anti-Semitism, and hatred that they propagate. Having watched the horrifying video of the car deliberately crashing into a crowd of protesters, I urge the Department of Justice to immediately investigate and prosecute this grotesque act of domestic terrorism.

These bigots want to tear our country apart, but they will fail. America is far better than this. Our Nation was built on fundamental truths, none more central than the proposition ‘that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.’

But,

“One of the things we’re seeing going on is the media and the Democrats are, to the surprise of no one, demagoguing this issue and using it for political advantage,” Cruz said. “So, in the media’s telling, they want to tar and feather any Republican, any conservative, and paint us all as these crazy racist nutbags.”

Jeff Flake, Chair of Subcommittee Privacy, Technology, and the Law):

We can’t accept excuses for white supremacy & acts of domestic terrorism. We must condemn. Period.

Flake, more generally:

Under our Constitution, there simply are not that many people who are in a position to do something about an executive branch in chaos. As the first branch of government (Article I), the Congress was designed expressly to assert itself at just such moments. It is what we talk about when we talk about “checks and balances.” Too often, we observe the unfolding drama along with the rest of the country, passively, all but saying, “Someone should do something!” without seeming to realize that that someone is us. And so, that unnerving silence in the face of an erratic executive branch is an abdication, and those in positions of leadership bear particular responsibility.

Ben Sasse, Chair of Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts:

“I refuse to accept that mankind is tragically bound to the starless midnight of racism… Unconditional love will have the final word” -MLK

“My dream is of a place and a time where America will once again be seen as the last best hope of earth.” -Abraham Lincoln

“We hold these truths to be self-evident, that ALL men are created equal, that they are endowed, by their Creator with…unalienable Rights”

These people are utterly revolting–and have no understanding of America. This creedal nation explicitly rejects “blood & soil” nationalism.

John Kennedy:

Violence and hatred are never the answer.

There are 20 members of the Senate Judiciary Committee, 11 Republicans and 9 Democrats. Of the Republicans, eight have made statements at least condemning the violence in Charlottesville, even if Cornyn and Kennedy, among others, are obviously issuing empty condemnations.

If even two of the Republicans who’ve made statements condemning the right wing violence in Charlottesville are serious — or more specifically serious about actions that DOJ must take, as in comments that both Lindsey and Cruz made — then they’ve got the numbers to make it happen.

They’ve got the numbers to force DOJ to refund the Life After Hate program, which white supremacist Seb Gorka’s wife Katherine defunded. They’ve got the numbers to ask Jefferson Beauregard Sessions whether his DOJ will treat this act of terrorism as terrorism. They’ve got the numbers to ask whether FBI ignored warnings of surging white supremacism.

Republicans often complain that there’s nothing they can do about their unmanageable President. This is one case where that’s patently false.

Three Times Donald Trump Treated Vehicular Manslaughter as Terrorism

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Donald Trump gave the weakest statement on Charlottesville today, even going so far as calling on Americans to “cherish our history,” in response to a Nazi mob responding to the removal of Confederate symbols.

[W]e’re closely following the terrible events unfolding in Charlottesville, Virginia.  We condemn in the strongest possible terms this egregious display of hatred, bigotry and violence, on many sides.  On many sides.  It’s been going on for a long time in our country.  Not Donald Trump, not Barack Obama.  This has been going on for a long, long time.

It has no place in America.  What is vital now is a swift restoration of law and order and the protection of innocent lives.  No citizen should ever fear for their safety and security in our society, and no child should ever be afraid to go outside and play, or be with their parents, and have a good time.

[snip]

I want to salute the great work of the state and local police in Virginia — incredible people — law enforcement, incredible people — and also the National Guard.  They’ve really been working smart and working hard.  They’ve been doing a terrific job.  The federal authorities are also providing tremendous support to the governor.  He thanked me for that.  And we are here to provide whatever other assistance is needed.  We are ready, willing, and able.

Above all else, we must remember this truth:  No matter our color, creed, religion or political party, we are all Americans first.  We love our country.  We love our God.  We love our flag.  We’re proud of our country.  We’re proud of who we are.  So we want to get the situation straightened out in Charlottesville, and we want to study it.  And we want to see what we’re doing wrong as a country, where things like this can happen.

My administration is restoring the sacred bonds of loyalty between this nation and its citizens, but our citizens must also restore the bonds of trust and loyalty between one another.  We must love each other, respect each other, and cherish our history and our future together.  So important.  We have to respect each other.  Ideally, we have to love each other. [my emphasis]

In spite of the attack on counter-protestors — a tactic borrowed from ISIS terrorists in Europe — Trump didn’t label this terrorism or even call out the white supremacist violence.

Which is curious, because on at least three occasions he treated vehicular manslaughter as terrorism. He did it with Nice.

He accused London Mayor Sadiq Khan of blowing off the London Bridge terrorist attack.

And he demanded the “civilized world” change its thinking in response, in part, to the Berlin truck attack.

I guess Trump has lost his interest in civilization now?

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