RUTHFULLY YOURS

They’ve taken down General Michael Flynn. The former Trump national-security adviser resigned under fire when a false narrative — his purported collusion with election-hacking Russians — was inflamed by criminal intelligence leaks, exacerbated by his poor judgment (or, at the least, poor execution of his duty to brief senior administration officials). Now, the swamp is after its next scalp, Sebastian Gorka, a White House counterterrorism adviser. If the White House is wise, they won’t get it.

Seb is a friend of mine. He is also an accomplished scholar of jihadist ideology and methodology. A series of transparently coordinated hit pieces against him has issued from the usual mainstream-media sources. They have been ably rebutted, among other places, here at National Review Online, in a column by Colin Dueck, and at the Washington Free Beacon, in reports by Bill Gertz and Adam Kredo. The notion that he is racist, “Islamophobic” (as opposed to anti-jihadist), or uninformed is absurd. I wish only to add a couple of observations to the mix.

First, Washington’s government-centric clerisy has forged its own counterterrorism industry over the years, consisting of former investigators and intel analysts, along with the academics who collaborate with them. Much of the work they have done is very solid. But some of it has been highly politicized — in the Bush years, when the powers that be took umbrage at any suggestion that Islamic culture and some mainstream currents of Islamic thought are inherently resistant to Western democracy; and in the Obama years, when any whisper of the nexus between classical, scripture-based Islamic doctrine and terrorism committed by Muslims was a firing offense.

Gorka, an American citizen who grew up in London and holds a doctorate in political science from the Budapest University of Economic Sciences and Public Administration, is an outside-the-Beltway academic. His clear-eyed understanding of totalitarian ideology, as we shall see, is largely based on having experienced its wages. In short, he is a gate-crasher who does not share the industry’s presumptions. Worse, from the industry’s perspective, he is an extraordinarily effective speaker and writer, who connects well in the classroom, on the page, in the council hall, and at the television studio. He is anathema to an expert class that has spent years willingly putting itself in the service of such farce as “countering violent extremism,” “workplace violence,” “Arab Spring,” “religion of peace,” and other manifestations of willful blindness.

There is thus a target on his back. The Trump administration’s quick cashiering of General Flynn has convinced establishment Washington that it may not take much character assassination for the next guy to be thrown under the proverbial bus.

Second, Flynn was replaced as national-security adviser by General H. R. McMaster, a commendable warrior but one lodged firmly in the Bush/Obama see-no-Islam mindset, which is at odds with Trump’s oft-stated determination to recognize the connection between Islam and terrorism. General McMaster evidently objects to Trump’s naming of “radical Islamic terrorism” as the enemy. As I’ve contended, naming the enemy is necessary but not nearly sufficient; it is but a first step toward the real necessity of understanding the enemy. I have expressed my own reservations about the term “radical Islamic terrorism,” so I can hardly fault McMaster on that score. I can quarrel, though, with his reportedly Obama-esque position that the Islamic State is not Islamic. That is no more sensible than saying that the Islamic State is perfectly representative of Islam.

Nancy Pelosi says Republicans have accomplished nothing in 2017, and no doubt she wishes that were true. But the House has already voted to repeal 13 Obama-era regulations, and President Trump signed his third on Tuesday. Now the GOP should accelerate by fully utilizing the 1996 Congressional Review Act.

Republicans chose the damaging 13 rules based on a conventional reading of the CRA, which allows Congress to override regulations published within 60 legislative days, with simple (50-vote) majorities in both chambers. Yet the more scholars examine the law, which had only been used successfully once before this year, the clearer it is that the CRA gives Congress far more regulatory oversight than previously supposed.

Spearheading this review is the Pacific Legal Foundation’s Todd Gaziano—who helped write the 1996 act—and the Heritage Foundation’s Paul Larkin. Their legal findings, and a growing list of rules that might be subject to CRA, are on www.redtaperollback.com.

The pair argue, first, that the CRA defines “rule” broadly. The law relies on the definition in the Administrative Procedure Act, which includes any “agency statement” that is “designed to implement, interpret, or prescribe law or policy.” This includes major and minor rules as well as “guidance”—letters that spell out an agency’s interpretation of a law.

This matters because President Obama’s regulators often ducked the notice and comment of formal rule-making by issuing “guidance” to act as de facto regulation. Examples include the guidance requiring transgender bathrooms in public schools, which the Trump Administration recently withdrew, or the 2011 guidance dictating how universities must handle sexual assault. The latter is ripe for CRA repeal.

The second discovery is the law’s definition of when the clock starts on Congress’s time to review rules. The CRA’s opening lines require any agency promulgating a rule to present a “report” containing the rule’s text and definition. The CRA explains that Congress’s review period begins either on the date the rule is published in the Federal Register, or the date Congress receives the report—whichever comes later.

Thus any rule for which any Administration (going back to 1996) failed to submit a report is fair game for CRA review and repeal. The Trump Administration can begin the clock merely by submitting a report to Congress.

Our own search suggests past Administrations were fairly diligent about presenting reports for major rules. But a 2014 study by the Administrative Conference of the United States found at least 43 “major” or “significant” rules that had never been reported to Congress.

The study estimated a further 1,000 smaller rules a year that agencies had failed to report. The study focused only on formal rules—not “guidance” that also requires a report to Congress under the CRA. Redtaperollback.com is offering tools so citizens can examine whether past rules have reports.