At Breitbart.com, Michael Patrick Leahy has what strikes me as an explosive story: “Mystery Surrounds Leaked Leaked Draft DHS Document at Center of Controversial Travel Ban Decisions by Two Federal Judges.” Actually, though, it doesn’t seem to be much of a mystery.
On February 24, AP reporters Vivian Salama and Alicia Caldwell published an AP “exclusive”: “DHS report disputes threat from banned nations.” The story was based on an anonymous draft Department of Homeland Services document that was leaked to the Associated Press, presumably by someone at DHS. The document seemed to have been created for the express purpose of undermining President Trump’s travel order. Indeed, it likely was created for that purpose.
The document is here. It says:
DHS I&A assesses that country of citizenship is unlikely to be a reliable indicator of potential terrorist activity.
The two judges who issued orders blocking implementation of the president’s travel ban relied explicitly on the AP story and the leaked DHS document. Judge Chuang, the federal district court judge in Maryland, wrote:
Among other points, they note that the Second Executive Order does not identify examples of foreign nationals from Iran, Libya, Sudan, Syria, or Yemen who engaged in terrorist activity in the United States. They also note that a report from the Department of Homeland Security, Office of Intelligence and Analysis, concluded that “country of citizenship is unlikely to be a reliable indicator of potential terrorist activity” and that “few of the impacted countries have terrorist groups that threaten the West.” l.R. 158.
Emphasis added. The Hawaii judge, Derrick Watson, wrote:
The February 24, 2017 draft report states that citizenship is an “unlikely indicator” of terrorism threats against the United States and that very few individuals from the seven countries included in Executive Order No. 13,769 had carried out or attempted to carry out terrorism activities in the United States. …
According to Plaintiffs, this and other evidence demonstrates the Administration’s pretextual justification for the Executive Order.
Judge Watson was in error: the draft report, which was never approved or finalized by DHS, is neither dated nor signed. February 24 was the date of the AP story based on the leaked document. No one at DHS has taken responsibility for writing it.
The judges were wrong to base their decisions in part on the leaked document. President Trump had clear constitutional and statutory authority to issue the travel order, and whether the judges, or some anonymous person at DHS, agreed with his judgment is irrelevant.
But Leahy skillfully unpacks what happened here. The draft report came from DHS’s Office of Intelligence and Analysis, which was headed by David Grannis, an Obama holdover bureaucrat. Grannis is a partisan Democrat who previously worked as a staffer for Democrats Dianne Feinstein and Jane Harman. A DHS spokesman “would neither confirm nor deny that Grannis was the author of, or had reviewed, the leaked document….”
How about the reporters? It pretty much goes without saying that AP reporters are Democrats. But Leahy also points out that Vivian Salama formerly worked for Rolling Stone, where she wrote that Yemen–one of the countries covered by the travel order–“holds a special place in my heart.” She has bitterly denounced U.S. drone strikes in Yemen.
So it appears that what happened here is that Democratic Party activists in the Department of Homeland Security either created a bogus document or dug up a poorly-researched draft document that had never been issued, and fed it to Democratic Party activists at the Associated Press. The Democratic Party activists at the AP published a story based on the anonymous document, which two Democratic Party activists on the bench used as a pretext for orders enjoining the president’s travel order.
Those orders should be viewed as purely political acts that have no basis in any valid judicial reasoning or authority.