Was Trump’s ‘Muslim Ban’ Intentionally Malevolent or Merely Incompetent?

The justified uproar in response to the Trump administration’s executive order on visas, refugees, and resettlement is a reminder of a truism about government. While managerial competence and respect for expertise together are no guarantee of principled and successful policy, insular and politicized policymaking processes can produce shameful failures.

Lawfare’s Benjamin Wittes, in a scathing and comprehensive critique of the executive order (EO), endeavored to determine whether its text was more the result of “malevolence” or “incompetence.” David French at the National Review, who called for an end to “hysterical rhetoric” about the EO, nevertheless admitted that a chief element of the EO is “madness.”

When evaluating mistakes by government, a tried-and-true Washington heuristic is to assume stupidity before evil, but in fact flawed judgment and malign outcomes are often causally connected. I haven’t met any Washington policymakers who are actually satanic (full disclosure: I’ve never met Stephen Bannon), and policy proposals are almost always aimed at a legitimate problem or government interest. But if incompetently designed or implemented, they can do great harm.

Damage to the Trump administration’s (and America’s) reputation resulting from the poorly designed and secretly drafted immigration EO might have been limited if it was subjected to an interagency vetting process, as has been the norm in all recent administrations. Spirited interagency debate can tighten policy arguments, flesh out legal consequences, highlight potential resource constraints, spur agency planning, and promote interagency cooperation. None of this appears to have happened.

Perhaps most importantly, a thorough vetting system can remind senior policymakers that the audience that will assess the morality and effectiveness of their proposals hails from all parts of the domestic political spectrum — and from nations around the globe. After all, humans are nobler when we think we are being watched.

A proper vetting would have allowed cabinet agency representatives to ask whether the administration really wanted to restrict entry to the United States of our military colleagues and allies, victims of Islamic State terror (like Christian, Yazidi, or Muslim Iraqis or Syrians), U.S.-based basketball players, British lords who happen to be Olympic medal winners, Oscar-nominated directors, and longstanding legal permanent residents who are valued and valuable parts of American society.

Vetting would have highlighted the extent to which the document reads as an only slightly camouflaged ban on Muslims. It would have highlighted the unnecessarily cruel human costs of the travel restrictions as drafted and proposed alternatives. Vetting would have identified the many points of legal confusion and determined whether the goals of the EO are achievable with current resource levels and in the stated timeframes.

In a vetting process, the Trump administration could have added language reassuring Muslims that its efforts are not motivated by antipathy toward Islam. It could have acknowledged that Muslims are frequent victims of terrorism, and that extremists also come from other religious backgrounds.

It could have included a directive that implementing agencies will not discriminate on the basis of religion. And it could have delivered a message to Muslims who are U.S. citizens that they are no less valued members of the American community than those from other religious groups.

In other words, the Trump administration could have followed the fine example of President George W. Bush in the immediate aftermath of 9/11. Bush made clear the United States would respond to those who attacked us, but he also emphasized the United States was not at war with Islam. That the Trump EO did not isn’t easily explicable (but you might want to read this Rudy Giuliani quote), except that it was never fully vetted.

A proper vetting might have delayed the EO. It would have constituted a stress test for the bureaucrats involved. (While working on the National Security Council staff, I coordinated the interagency process to create Executive Order 13606, which suspended entry to certain persons in Iran and Syria accused of grave human rights abuses, and I still have heart palpitating flashbacks — and I was just the bureaucrat responsible for dragging it across the finish line.)

I recently wrote a longform article on the interagency system (I know, even I yawn thinking about it), in which I opined that “just as ‘Personnel is policy’, it is as true that ‘Organization is policy.’” I hope the Trump administration (and others similarly inclined to be unthinkingly critical of government) comes to learn that government is not the implacable enemy, and its processes can in fact be helpful.

I’ve written at length about inefficiencies and frustrations in government, but I also respect the Founding Fathers’ vision of the government as a check on other sources of power and of the individual parts of government as checks on each other. Vetting of presidential actions is an essential aspect of that.

Even well-intentioned policymakers promote ideas from time to time that, if implemented, would have pernicious consequences. Sometimes senior officials move too quickly. Sometimes they are angry, or afraid. Sometimes they are pressured by less-well-informed superiors. Sometimes they have bad days. And sometimes, they forget that we are all watching.

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