The Enigma of Why DOJ Lawyers Don’t Present Terror Stats in EO Legal Cases


It happened again on February 3rd at the hearing on President Trump’s immigration executive order, before District Judge Leonie M. Brinkema in Alexandria VA.

This was yet another instance of Department of Justice lawyers failing to submit open source evidence of terror acts committed by refugees from the seven countries temporarily banned by President Trump’s Executive Order: Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen.

They also apparently didn’t provide evidence of just what kind of “countries” the seven are—most barely fit the definition.

During the hearing a statement was submitted as an exhibit by the plaintiffs, intended to show that there was no threat from these seven countries, no threat at all. It was written by: Madeleine K. Albright, Avril D. Haines, John F. Kerry, Lisa O. Monaco, Michael J. Morell, Janet A. Napolitano, Leon E. Panetta, Susan E. Rice, John E. McLaughlin and Michael V. Hayden.

Two are former secretaries of state, others former officials of the CIA and DHS. All of them served under Obama save for: Albright, who served under Clinton; McLaughlin and Hayden served under George W. Bush.

Hayden is a longtime Trump critic who wrote a WaPo hit piece on him five days before Election Day titled “Trump is Russia’s Useful Fool.”

In a March 2016 Al Jazeera interview, Hayden told host Mehdi Hasan: “Donald Trump is making Americans ‘less safe’ with his anti-Islam campaign rhetoric.”

When Hasan asked Hayden if he felt “Trump could therefore be described ‘as a recruiting sergeant’ for groups such as ISIL and Al Qaeda,” Hayden replied: “Yes.” Notably, Hayden was also critical of Trump’s primary rival Ted Cruz because he “called on American police ‘to patrol and secure Muslim neighbourhoods’”

This philosophy is identical with a point of view advanced by the far-Left Center for American Progress (founded by George Soros and Hillary Clinton, among others) and is emblematic of the statement submitted in the trial. Clearly, this is not an impartial group of national security experts.

Here are the notable parts of their statement:

We all agree that the United States faces real threats from terrorist networks and must take all prudent and effective steps to combat them, including the appropriate vetting of travelers to the United States. We all are nevertheless unaware of any specific threat that would justify the travel ban established by the Executive Order issued on January 27, 2017.
We view the Order as one that ultimately undermines the national security of the United States, rather than making us safer.… It does not perform its declared task of “protecting the nation from foreign terrorist entry into the United States.” …. It could do long-term damage to our national security and foreign policy interests, endangering U.S. troops in the field and disrupting counterterrorism and national security partnerships. It will aid ISIL’s propaganda effort and serve its recruitment message by feeding into the narrative that the United States is at war with Islam. It will hinder relationships with the very communities that law enforcement professionals need to address the threat….
Since September 11, 2001, not a single terrorist attack in the United States has been perpetrated by aliens from the countries named in the Order.

This statement implies that because we want to limit the entrance of people from the seven countries, Muslims around the world will refuse to cooperate with us, and will no longer like us. But in 1993, when we suffered the first attack on the World Trade Center, there had been no criticism of Islam, had been no Iraq War yet. So, why the attack and de facto declaration of war? And in his eight years as president, Obama never spoke of barring Muslims and refused to make a connection between Islam and terror. Yet ISIS recruited very well indeed—even in America.

In spite of its tendentious nature, “Judge Brinkema called the declaration the “single most startling piece of evidence” that she’s come across in the case, noting that the officials have served on the “front lines” of national security issues in bipartisan administrations,” reported Law 360. She was able to make this assertion only because the DOJ attorneys offered no evidence to refute it.


DOJ submits no evidence that people from the seven countries are a potential threat

USA Today reported that the judge said, “I don’t have a scintilla of evidence that counters this argument.”

“The judge said courts were ‘begging’ the DOJ to proffer hard examples of a heightened security threat from the countries that would rationalize the action.”

KTLA reported that “Brinkema pressed [Justice Department attorney] Erez Reuveni at length at Friday’s hearing to explain what evidence the Trump administration had to justify such a sweeping ban of foreign nationals from seven Muslim-majority countries… ‘The defendants have responded with no evidence other than the (executive order),’ Brinkema wrote in her decision.”

It would have been easy to refute the statement of the officials, which was quoted above. Yet, the DOJ attorneys decided to show up with no evidence beyond the order itself. This was not the first time; it happened in Seattle federal judge Robart’s court, and at the Ninth Circuit hearing. This has allowed the press to repeatedly assert that there is no evidence people that those countries could present a threat. But that is most assuredly not the case.


Terror convictions of people from the seven countries

The statement that there has been “not a single terrorist attack in the United States … perpetrated by aliens from the countries named in the Order” is an absolute falsehood, and it’s a marvel that former government officials would sign their names to such a whopper. Jessica Vaughan of the Center for Immigration Studies reports that 33 people from the seven countries were convicted of terror-related crimes, plus “Abdul Razak Ali Artan, who attacked and wounded 11 people on the campus of Ohio State University in November 2016. Artan was a Somalian who arrived in 2007 as a refugee.”

The information was extracted from a June 2016 report by the Senate Subcommittee on Immigration and the National Interest.


Where did the list of seven nations come from?

The list of nations in the order was drawn up as part of an act of Congress: the Terrorist Prevention Act of 2015 , which Obama signed in December 2015, and to which his DHS later added more countries.

Critics of the executive order assert that the Act only applies to the Visa Waiver Program, which allows travelers from designated countries to enter the United States without a visa. But Congress’s analysis of the Act explains:

This subsection clarifies in statute that the purpose of the Visa Waiver Program (VWP) is primarily a counterterror and national security program. After 9/11, several changes were made to the law to transform what was once solely a trade and travel facilitation program into a strong national security program that plays a significant role in keeping terrorists and other inadmissible individuals out of the country.

Countries in the program are expected to provide “terrorism-related information to the U.S. in a timely manner.” The Act bars aliens from the VWP if they’ve visited countries or areas of concern. The Executive Order utilized the list of those places.

How were the countries selected for the Act? An alien is acceptable only if:

(i) the alien has not been present, at any time on or after March 1, 2011—

“(I) in Iraq or Syria;

“(II) in a country that is designated by the Secretary of State… as a country, the government of which has repeatedly provided support of acts of international terrorism; or

“(III) in any other country or area of concern designated by the Secretary of Homeland Security under subparagraph (D)

“Other countries or areas of concern” are places where “a foreign terrorist organization has a significant presence in the country or area; or where “the country or area is a safe haven for terrorists.”

Not only have there been innumerable terror attacks in most of these nations, it’s obvious from State Department warnings available online that these countries are engulfed in civil war and/or have governments unable or unwilling to assist in vetting immigrants.


State Department warnings and terror assessments of the seven states

State Department warnings and assessments of the seven countries clearly support their inclusion in the Terrorist Prevention Act list, and render laughable the statement of the ex-officials that they are “unaware of any specific threat” from them. Nations without a functioning government obviously cannot supply reliable anti-terrorism info. Almost all have “a foreign terrorist organization [with] a significant presence in the country,” as stated in the Act. Here are some excerpts, with additional information from a comprehensive Breitbart article:

Iraq and Syria: Not only are Iraq and Syria enumerated in the law, but they are both overrun by terrorists:

“ISIL maintained a formidable force in Iraq and Syria, including thousands of foreign terrorist fighters from more than 100 countries.” — Dept. of State Country Reports (2015)

Iraq is number one in terror attacks and deaths from terror attacks, and Syria is number nine among the top ten. —Dept. of State Study of Terrorism and Responses (2015)

“Terrorist and other violent extremist groups including ISIL, al-Nusrah Front (al-Qa’ida’s Syrian affiliate now calling itself Jabhat Fatah al-Sham), and others operate in Syria…. The U.S. Embassy in Damascus suspended its operations in February 2012.” —Dept. of State warning The United States has been in a proxy war against the Syria govt. for five years. [Therefore, the Syrian govt. is unlikely to provide anti-terrorism info.]

“ISIS… is headquartered in Syria, and al-Qaeda is one of the strongest military forces in the rebellion.”—Breitbart

Iran fits the Terrorist Prevention Act two ways: “The U.S. government does not have diplomatic or consular relations with … Iran…” —Dept. of State warning [Therefore, they cannot be expected to provide “terrorism-related information.”]

“Iran remained the foremost state sponsor of terrorism in 2015, providing … support, including financial, training, and equipment, to groups around the world…”  —Dept. of State Strategic Assessment [Therefore it has “repeatedly provided support of acts of international terrorism.”]

Iran remains an ardent enemy of America.

Libya: “On July 26, 2014, the U.S. Embassy suspended operations in Libya. Terrorist organizations, including Islamic State-affiliated groups and al-Qaeda in the Islamic Maghreb, continue to threaten the region.”—Dept. of State warning [Terror org. has significant presence in the country.]

“Libya still lacks a functioning central government” —Breitbart

Somalia has been a favorite Obama source for refugees. Americans are warned of: “continuous activity by the al-Qaeda affiliated terrorist group, al-Shabaab.…There is no U.S. embassy presence in Somalia.” —Dept. of State warning

Al-Shabaab … effectively controls large portions of rural Somalia…. [Terror org. has significant presence in the country.] The BBC declared the country ‘has not had a functional national government since … 1991.’”—Breitbart

Sudan: Terrorist groups remain present in Sudan and are intent on harming Westerners.” —Dept. of State warning [Terror org. has significant presence in the country.]

“Sudan is listed as a state sponsor of terrorism”—Breitbart


Yemen features the headquarters of al-Qaeda in the Arabian Peninsula. “ISIL also has established a presence in Yemen.”—Dept. of State warning [Terror org. has significant presence in the country.]

The White House should include in the coming executive order an appendix containing similar info to the above, and the DOJ should start submitting terror evidence in the legal actions that will no doubt follow. A well-timed presidential address to America including such info, is imperative, to blunt the ongoing legal and media sabotage. New security advisor Sebastian Gorka should be on hand, at the address.

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Terry Schuck CPCU
Terry Schuck CPCU
7 years ago

Wow, good stuff. Thanks.

Of course, it further proves the need of judges to increase their power and control, a. k. a. judicial activism, rather than taking a pass, which is an option.

Today is the anniversary of Marbury vs. Madison. Fancy that!

Terry Schuck CPCU
Terry Schuck CPCU
7 years ago

Wow. Lots of stuff in here. Thanks.

Many times, I get the sense as in this case, a judge ought to just stay out of the fray, but that would cost them power and control, which is what power politics is all about.