Former National Security Officials Call Trump Executive Order “Ill-Conceived, poorly Implemented and Ill-Explained”

A group of ten former senior national security officials filed a joint declaration (Read the PDF here)  with the Ninth Circuit Court of Appeals, saying that President Trump’s Executive Order “does not further – but instead harms – sound U.S. national security and foreign policy.” The document is short and well worth reading in its entirety, but here are the highlights:

  • “Four of us (Haines, Kerry, Monaco and Rice) were current on active intelligence regarding all credible terrorist threat streams directed against the U.S. as recently as one week before the issuance of the Jan. 27, 2017 Executive Order.”
  • “We all are nevertheless unaware of any specific threat that would justify the travel ban established by the Executive Order issued on January 27, 2017. We view the Order as one that ultimately undermines the national security of the United States, rather than making us safer. In our professional opinion, this Order cannot be justified on national security or foreign policy grounds.”
  • “There is no national security purpose for a total bar on entry for aliens from the seven named countries. Since September 11, 2001, not a single terrorist attack in the United States has been perpetrated by aliens from the countries named in the Order. Very few attacks on U.S. soil since September 11, 2001 have been traced to foreign nationals at all. The overwhelming majority of attacks have been committed by U.S. citizens.”
  •  “As a national security measure, the Order is unnecessary. National security – based immigration restrictions have consistently been tailored to respond to: (1) specific, credible threats based on individualized information, (2) the best available intelligence and (3) thorough interagency legal and policy review. This Order rests not on such tailored grounds, but rather, on (1) general bans (2) not supported by any new intelligence that the Administration has claimed, or of which we are aware, and (3) not vetted through careful interagency legal and policy review.”
  • “In our professional opinion, the Order was ill-conceived, poorly implemented and ill-explained.”
  • “The Order is of unprecedented scope. We know of no case where a President has invoked his statutory authority to suspend admission for such a broad class of people. Even after 9/11, the U.S. Government did not invoke the provisions of law cited by the Administration to broadly bar entrants based on nationality, national origin, or religious affiliation.”
  • “Maintaining the district court’s temporary restraining order while the underlying legal issues are being adjudicated would not jeopardize national security. It would simply preserve the status quo ante, still requiring that individuals be subjected to all the rigorous legal vetting processes that are currently in place. Reinstating the Executive Order would wreak havoc on innocent lives and deeply held American values.”
  • “Rebranding a proposal first advertised as a “Muslim Ban” as “Protecting the Nation from Foreign Terrorist Entry into the United States” does not disguise the Order’s discriminatory intent, or make it necessary, effective, or faithful to America’s Constitution, laws, or values.”

The signatories of the declaration are:

  • Madeleine Albright (Ambassador to the United Nations, 1993-1997. Secretary of State, 1997-2001)
  • Avril Haines (CIA Deputy Director, 2013-2015. Deputy National Security Adviser, 2015-2017)
  • Michael Hayden (NSA Director, 1999-2005. CIA Director 2006-2009)
  • John Kerry (Secretary of State, 2013-2017)
  • John McLaughlin (CIA Deputy Director, 2000-2004. Acting CIA Director, 2004)
  • Lisa Monaco (Assistant to the President for Homeland Security and Counterterrorism, Deputy National Security Adviser 2013-2017)
  • Michael Morrell (Career CIA official since 1980. CIA Deputy Director 2010-2013. Acting CIA Director, 2011, 2012-2013)
  • Janet Napolitano (Secretary of Homeland Security, 2009-2013)
  • Leon Panetta (CIA Director, 2009-2011. Secretary of Defense, 2011-2013)
  • Susan Rice (Ambassador to the United Nations, 2009-2013. National Security Adviser, 2013-2017)

Ninth Circuit Court of Appeals Refuses to Reinstate Trump Travel Ban

A late night decision (Read the PDF here) from a three-judge panel on the Ninth Circuit Court of Appeals came down in the early hours of Sunday morning:

Washington (CNN)A federal appeals court early Sunday morning denied the US government’s emergency request to resume President Donald Trump’s travel ban.

The Ninth Circuit Court of Appeals has asked for both sides to file legal briefs before the court makes its final decision after a federal judge halted the program on Friday.

What this means is that the ruling by US District Court Judge James Robart, who suspended the ban, will remain in place — for now.

The US Justice Department filed an appeal just after midnight Sunday, asking to pause Robart’s sweeping decision that temporarily halted enforcement of several key provisions of Trump’s executive order.

Lawyers from both sides have until Monday (tomorrow) to make any filings. If the Ninth Circuit upholds Robart’s TRO, expect the Department of Justice to file an appeal with the Supreme Court. If SCOTUS agrees to hear the case with its current 8 justice lineup, that means that if the opinion is a 4-4 partisan split, the Ninth Circuit opinion will stand. If the Supreme Court rules by a 5-3 majority or greater, then its opinion will supersede the Ninth Circuit’s.

Federal Judge Issues Temporary Restraining Order Halting Trump Executive Order

Judge James L. Robart issued a temporary restraining order (TRO) blocking the nationwide implementation of President Trump’s executive order on immigration, handing Trump’s opponents an early legal victory in the litigation surrounding the controversial order.

The TRO will remain in place while Robart considers Washington Attorney General Bob Ferguson’s lawsuit against the administration, which challenges several provisions of the executive order. (Read the PDF document here) One key excerpt:

The court finds that the States have met their burden of demonstrating that they face immediate and irreparable injury as a result of the signing and implementation of the Executive Order. The Executive Order affects the States’ residents in areas of employment, education, business, family relations, and freedom to travel. These harms extend to the States by virtue of their roles as parens patriae of the residents living within their borders. In addition, the States themselves are harmed by virtue of the damage that implementation of the Executive Order has inflicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injury to the States’ operations, tax bases, and public funds. These harms are significant and ongoing. Accordingly, the court concludes that a TRO against Federal Defendants is necessary until such time as the court can hear and decide the States’ request for a preliminary injunction.

The White House reaction:

The President’s reaction:

Minnesota Joins Washington Lawsuit Against Trump Administration, Hearing Set for Friday

Washington Attorney General Bob Ferguson filed an amended complaint to his state’s original lawsuit against the Trump administration, which adds Minnesota – and its attorney general, Lori Swanson – as plaintiffs.

Swanson said in a statement, “It does not pass constitutional muster, is inconsistent with our history as a nation, and undermines our national security… America can keep its people safe without sacrificing bedrock constitutional principles.”

There will be a hearing at a federal court in Seattle tomorrow (Friday) for lawyers representing Washington and the federal government. At issue will be whether or not the federal government should suspend implementation of the administration’s executive order nationwide immediately.  A ruling from Judge James Robart (a George W. Bush appointee) could come as early as 2:30 p.m. Pacific Standard Time.

Massachusetts and Virginia Join Lawsuits Against Federal Government Over Trump Executive Order

Massachusetts Attorney General Maura Healey announced her office would be joining a lawsuit against the federal government over President Trump’s controversial executive order. The original plaintiffs were the ACLU of Massachusetts and private attorneys on behalf of two associate professors from the University of Massachusetts at Dartmouth.

It is worth noting that, among the several statements in support of the lawsuit from state officials as well as representatives from the private sector and academia is this comment from Republican governor Charlie Baker:

“Massachusetts is a global community and we all benefit from the shared experiences of our partners from around the world to support our economy and educational institutions to make our state the best place to live, work and raise a family. The recent executive order puts this at risk, will not improve our security, and the lack of guidance associated with such an abrupt and overwhelming decision is problematic for all involved.  Our administration has worked with the Attorney General’s office and supports her challenging this action. We look forward to the courts resolving this matter expeditiously.”

Virginia Attorney General Mark Herring also filed a motion to intervene in Aziz v. Trump et al. in the Eastern District of Virginia, effectively making the state a plaintiff in the case. The motion says in part:

The Commonwealth has substantial interests justifying its intervention. Virginia has a substantial interest in protecting its public universities and their faculty and students from the academic and fiscal disruption posed by the Executive Order. The Executive Order impairs the ability of students who are lawful permanent residents or present on student visas from continuing to attend Virginia’s public colleges and universities. That impairment will hamper the ability of Virginia’s colleges and universities to attract and retain foreign students in the future and result in a significant loss of tuition revenue to the Commonwealth. The Executive Order also hinders the travel of faculty members and other educational personnel employed by Virginia’s public colleges and universities. Faculty members and students who are unable to travel likely will be forced to forfeit their grant moneys. Moreover, Virginia has a quasi-sovereign interest “in the health and well-being —both physical and economic—of its residents in general,” which will be impaired if Virginia is not permitted to intervene.
Herring’s office also filed a separate brief in support of the motion to intervene.
That makes three states which have joined lawsuits against the federal government yesterday alone.

Democrats’ Legal Wars with Trump Administration Have Begun

A group of sixteen Democratic state attorneys general met in Florida over the weekend and issued a joint statement blasting President Trump’s controversial executive order which led to the detention of travelers from seven Muslim nations at airports throughout the United States:

“As the chief legal officers for over 130 million Americans and foreign residents of our states, we condemn President Trump’s unconstitutional, un-American and unlawful Executive Order and will work together to ensure the federal government obeys the Constitution, respects our history as a nation of immigrants, and does not unlawfully target anyone because of their national origin or faith.

“Religious liberty has been, and always will be, a bedrock principle of our country, and no president can change that truth.

“Yesterday, multiple federal courts ordered a stay of the Administration’s dangerous Executive Order. We applaud those decisions and will use all of the tools of our offices to fight this unconstitutional order and preserve our nation’s national security and core values.

“We are confident that the Executive Order will ultimately be struck down by the courts. In the meantime, we are committed to working to ensure that as few people as possible suffer from the chaotic situation that it has created.”

Federal judges in four states issued orders temporarily forbidding the removal of some individuals that were affected by the executive order which led to protests at airports across the country.

Washington state Attorney General Bob Ferguson filed a lawsuit this morning against the federal government seeking to invalidate President Trump’s executive order. (Read the PDF of the complaint.) In addition, Ferguson filed a motion for a temporary restraining order seeking to “temporarily bar enforcement of the Order nationwide.”

At a press conference, Ferguson said that Amazon and Expedia – tech companies both based in Washington state – would be filing declarations of support with the lawsuit. A Microsoft representative said that the company would also be supportive of the lawsuit. Both the lawsuit and the restraining order mention that the tech industry relies on skilled immigrants working under the H-1B visa program. The filings say the executive order would adversely impact the companies’ employees and in the case of Expedia, some of its customers, who are travelers with passports from the seven countries named in the order. The lawsuit also mentions that 230 students from the affected countries are currently enrolled at the University of Washington and Washington State University.

This is the first of what will likely be several lawsuits against the federal government regarding this executive order. The issue will probably eventually make its way to the Supreme Court.