A Few Thoughts on the 9th Circuit’s Decision

A few thoughts on yesterday’s decision from the 9th Circuit Court of Appeals in State of Washington v Trump:

  • Just so everyone is clear (I’ve seen some mischaracterizations of what happened), the court did not strike down the executive order suspending immigration from seven Muslim countries for 90 days and refugees for 120 days and barring all refugees from Syria indefinitely. Rather, the court declined to lift the suspension imposed by federal judge James Robart.
  • The court did not find that the administration does not have the power to suspend visas to countries deemed by the president to present significant national security threats.
  • The court did find that states can get standing to sue over immigration restrictions. Standing–the right to claim injury in order to be allowed to bring suit–is notoriously difficult to “get” in national security cases.However, the court found that:

the States have alleged harms to their proprietary interests traceable to the Executive Order. The necessary connection can be drawn in at most two logical steps: (1) the Executive Order prevents nationals of seven countries from entering Washington and Minnesota; (2) as a result, some of these people will not enter state universities, some will not join those universities as faculty, some will be prevented from performing research, and some will not be permitted to return if they leave. And we have no difficulty concluding that the States’ injuries would be redressed if they could obtain the relief they ask for: a declaration that the Executive Order violates the Constitution and an injunction barring its enforcement.

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Update on Iran’s Missile Tests

Several people have, either in the comments on the original post or on Facebook, asked about the US’s response to the Iranian missile test on Sunday, January 29. On Friday, February 3, the Trump administration levied sanctions against 13 individuals and 12 companies associated with Iran’s missile program. This was followed by a war of words, with President Trump and National Security Adviser Flynn warning Iran about further tests and telling Iran that they had it easy under President Obama, while Iran called out Trump as an “inexperienced person.” The sanctions are rather limited, as they do not touch Iran’s $16 billion deal with Boeing and aren’t significantly more punishing that the sanctions regime already in place.

So, what did Iran likely learn from these events? Given that they conducted a series of missile tests on Saturday, February 4, the day after the imposition of the new sanctions, it’s likely that they learned–rightly or wrongly–that the Trump administration is lots of bluster but is ultimately nothing to fear. True, the most recent missile launches were conducted entirely within Iranian sovereign airspace, making them less problematic for the international community. But the test should still be seen as an act of defiance.

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Grey Zones

If we want to preserve the rules-based system, we must resist the grey zone divide-and-conquer tactics. We must work to form coalitions of people who may agree on nothing other than the fact that they still want to live under the rule of law.

I was going to write a post about how excessive restrictions on immigration are bad for the U.S. in terms of economics, foreign policy, moral leadership, and national/international security. However, plenty of other people beat me to it, and you can find economic cases here , here , and here ; Senators McCain and Graham here ; a bipartisan group of national security professionals here ; a bunch of Nobel Prize winners and other academics here ; more experts here  and here ; the intelligence repercussions here , and countless others .

So, instead of that, I want to talk about one way I think we can understand the approach this administration appears to be taking, and what that means for how to respond to it. I’m going to argue that what this administration is doing looks an awful lot like what security people are now calling “grey zone conflict”. That matters for two reasons: first, it gives us a preview of some possible effects of this approach. Second, it gives us some idea of how to respond … and how not to respond.

“Grey zone conflict” is a term coined fairly recently to describe the behavior of Russia in Ukraine and Eastern Europe, and China in the South China Seas. It is an approach used by revisionists against the status quo, but specifically by revisionists who appear to be rising in power and/or “near-peer competitors” to the status quo power. It is an approach that can be used to achieve both short and long term goals, and it is particularly attractive to state actors who already own the presumption of legitimacy (as opposed to, e.g., insurgency, which is done by non-state actors who want to attack the status quo and create legitimacy for themselves). Grey zone conflict is generally defined by NOT meeting the generally accepted standards of armed conflict or terrorism. It frequently involves cyber attacks, information warfare, faits accomplis, and disruptions (sometimes violent) caused allegedly by private citizens (e.g., Russia’s “little green men” in Ukraine). Mike Mazarr describes it like this: “The central strategic concept of gray zone strategies is to confront their targets with a conundrum. Any one specific act in the chain will have limited stakes, but responding to it has the potential to escalate and create a crisis … Gradual gray zone tactics are thus designed to place their intended targets in a no-win position” (Mazarr, “Mastering the Gray Zone”). This is what Schelling called “salami slicing”: each individual action is insufficient to cause/justify a backlash, and as they come in piecemeal, there never seems to be a clear point at which the line has been crossed, but at some point, the line has clearly been left far behind, and the status quo actor is at a massive disadvantage.

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Understanding Iran’s Missile Test

This past weekend, Iran conducted a ballistic missile test, prompting a strange response from the Trump administration. National Security Adviser Michael Flynn stated that “as of today, we are officially putting Iran on notice,”a meaningless platitude that conveys no information to Iran. Flynn and others, including the Israeli ambassador to the United Nations, accused Iran of violating a UN Security Council resolution–passed in support of the US-Iran nuclear deal–that calls upon Iran “not to undertake any activity related to ballistic missiles designed to be capable of delivering nuclear weapons, including launches using such ballistic missile technology.” Iran argues that since it does not have a nuclear weapons program its missiles are not designed to deliver nuclear weapons and, therefore, its missile launches are legal.

Leaving aside the legal argument, there’s a more interesting question here. Given a president who has already threatened to respond to provocations with force (true, most people dismissed this threat as meaningless campaign braggadocio, but if we’ve learned anything from the first two weeks of Trump it’s that he seems determined to do the things he has threatened to do) and a new administration that is likely looking for an opportunity to demonstrate its toughness, why would Iran take such a provocative action?

To my eyes, Iran’s missile test looks like a probing action, designed exactly to extract a response of some kind from the Trump administration. The new president’s behavior and decision making process (if such a thing even exists) are so far outside of the bounds of normal US foreign policy norms that other actors likely literally have no idea of how the US will respond to their moves. Uncertainty of that sort is a very dangerous thing in international politics; when actors do not know what will and what won’t provoke military responses, what are or are not a state’s core national interest, or what a state will or will not go to war over, miscalculations become more likely and so-called “accidental” wars become possible.

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The Canary in Trump’s Coal Mine

In May of 2016, the New York Times reported that one of John Kasich’s senior advisers was contacted by the Trump campaign, which offered Kasich the vice presidency, claiming that he could be “the most powerful vice president in history.” When the adviser asked how that would happen, the Times reported that the Trump staffer responded that the vice president would be in charge of domestic and foreign policy while President Trump would focus on “making America great again.” For many people on both sides of the political aisle, such a distribution of responsibilities would be the best case scenario in a Trump administration. President Trump can spend his time tweeting and speechifying, while leaving the hard work of policy making to the experienced, more traditional politicians.

The recent hearings for Trump’s Cabinet appointees lend some credence to the argument that this is, in fact, how President Trump intends to govern. Many of his nominees, especially for the national security-related positions, expressed policy preferences that diverged significantly from Trump’s campaign promises. But perhaps the most important Cabinet member in this context is the new Secretary of Defense, retired U.S. Marine General James Mattis.

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Welcome to Security Dilemmas, a new blog devoted to issues of international relations, national and international security, foreign policy, constitutional law, and any and all other issues we find interesting! We will be paying particular attention to the policies and processes of the Trump administration.

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