White House officials said a report disputing the threat posed by travelers from seven predominantly Muslim countries included in President Donald Trump’s executive order was “not the intelligence assessment the president asked for,” according to a report published Saturday by the Wall Street Journal.
“The President asked for an intelligence assessment. This is not the intelligence assessment the President asked for,” an unnamed senior administration official said as quoted in the Wall Street Journal’s report. ,,,
The Associated Press reported on Friday that it had obtained a draft document of the report, which concluded that citizenship of the countries included in Trump’s ban is an “unlikely indicator” of terrorism threat level.
From other reporting, it appears that the Trump team is going to beat a strategic retreat from its “no judicial review at all position,” and retreat to the “rational basis test” of judicial review.
The state of Washington, the ACLU, and their ilk will argue for the harder to meet “strict scrutiny” test of judicial review, but the government will hold fast to the “rational basis” best. That’s their (new) story and they’ll be sticking to it, all the way to the Supreme Court.
Problem is: if the standard of review is “rational basis,” then you need a basis, and the basis needs to be rational.
Here, the government has singled out seven countries, but the italicized phrase above implies that citizenship in those countries is not a rational basis for concluding that a would-be visitor or immigrant is more likely than anyone else to be a terrorist.