President Trump and the Courts: The rival submissions in the Court of Appeals

In view of the interest shown in my two earlier blogs about the legal proceedings on the west coast of America, I am bringing the history up to date.

The court’s website now not only includes the long submissions filed on Saturday in support of the Government’s application for a removal of the stay on the President’s banning order, but there is also the response filed by the two states of Washington and Minnesota (”the States”) in response to the Government’s emergency motion, which is supported by two different types of evidence.

The first is a formal statement by Washington’s Solicitor-General exhibiting a number of documents to which the States wish to draw the Court’s attention. The other is a joint statement signed by ten men and women who have had very great experience of combatting the terrorist threats to the United States in recent years.

 

This statement begins in these terms:

“We, Madeleine K. Albright, Avril D. Haines, Michael V. Hayden, John F. Kerry, John E. McLaughlin, Lisa O. Monaco, Michael J. Morell, Janet A. Napolitano, Leon E. Panetta, and Susan E. Rice declare as follows:

  1. We are former national security, foreign policy, and intelligence officials in the United States Government:
  2. Madeleine K. Albright served as Secretary of State from 1997 to 2001. A refugee and naturalized American citizen, she served as U.S. Permanent Representative to the United Nations from 1993 to 1997 and has been a member of the Central Intelligence Agency External Advisory Board since 2009 and the Defense Policy Board since 2011, in which capacities she has received assessments of threats facing the United States.
  3. Avril D. Haines served as Deputy Director of the Central Intelligence Agency from 2013 to 2015, and as Deputy National Security Advisor from 2015 to January 20, 2017.
  4. Michael V. Hayden served as Director of the National Security Agency from 1999 to 2005, and Director of the Central Intelligence Agency from 2006 to 2009.
  5. John F. Kerry served as Secretary of State from 2013 to January 20, 2017.
  6. John E. McLaughlin served as Deputy Director of the Central Intelligence Agency from 2000-2004 and Acting Director of CIA in 2004. His duties included briefing President-elect Bill Clinton and President George W. Bush.
  7. Lisa O. Monaco served as Assistant to the President for Homeland Security and Counterterrorism and Deputy National Security Advisor from 2013 to January 20, 2017.
  8. Michael J. Morell served as Acting Director of the Central Intelligence Agency in 2011 and from 2012 to 2013, Deputy Director from 2010 to 2013, and as a career official of the CIA from 1980. His duties included briefing President George W. Bush on September 11, 2001, and briefing President Barack Obama regarding the May 2011 raid on Osama bin Laden.
  9. Janet A. Napolitano served as Secretary of Homeland Security from 2009 to 2013.
  10. Leon E. Panetta served as Director of the Central Intelligence Agency from 2009-11 and as Secretary of Defense from 2011-13.
  11. Susan E. Rice served as U.S. Permanent Representative to the United Nations from 2009-13 and as National Security Advisor from 2013 to January 20, 2017.

 

  1. We have collectively devoted decades to combatting the various terrorist threats that the United States faces in a dynamic and dangerous world. We have all held the highest security clearances. A number of us have worked at senior levels in administrations of both political parties. 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 on “Protecting the Nation from Foreign Terrorist Entry into the United States” (“Order”).

 

  1. We all agree that the United States faces real threats from terrorist networks and must take all prudent and effective steps to combat them, including the appropriate vetting of travelers to the United States. 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. It does not perform its declared task of “protecting the nation from foreign terrorist entry into the United States.” To the contrary, the Order disrupts thousands of lives, including those of refugees and visa holders all previously vetted by standing procedures that the Administration has not shown to be inadequate. It could do long-term damage to our national security and foreign policy interests, endangering U.S. troops in the field and disrupting counterterrorism and national security partnerships. It will aid ISIL’s propaganda effort and serve its recruitment message by feeding into the narrative that the United States is at war with Islam. It will hinder relationships with the very communities that law enforcement professionals need to address the threat. It will have a damaging humanitarian and economic impact on the lives and jobs of American citizens and residents. And apart from all of these concerns, the Order offends our nation’s laws and values. “

I was impressed by the fact that the list includes the name of Michael V.Hayden, who served President George W.Bush’s administration first as Director of the National Security Agency and then as Director of the Central Intelligence Agency. I heard him speak at the Hay Festival last year, and he is a very tough and knowledgeable operator in the intelligence field.

I will not attempt to summarise the parties’ long written submissions. Suffice it to say that the Government complains, among other things, that Judge Robart gave no reasons for his belief that the States were likely to establish their case at trial, and the States, for their part, identified the ways in which they allege that the President’s ban violated provisions of the US Constitution.

The two States were in the event allowed an extra hour to file their submissions once the Court of Appeals had remembered that on Sunday nights it is not possible to file documents between 10 pm and midnight because of regularly scheduled maintenance of its electronic filing system! The Court doesn’t seem to have thought that the Government’s lawyers would be too inconvenienced by this delay in the middle of the night, and it retained 3 pm today (Pacific Standard time) for the filing of any response submissions.

Concurrently with these legal exchanges, the President, who is of course a party to the proceedings has himself been tweeting away from what I believe he calls “the Winter White House in Florida”. I may have missed some of them, but here are the seven tweets that have come to my attention:

The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!

Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!

I have instructed Homeland Security to check people coming into our country VERY CAREFULLY. The courts are making the job very difficult!

The judge opens up our country to potential terrorists and others that do not have our best interests at heart. Bad people are very happy!

Why aren’t the lawyers looking at and using the Federal Court decision in Boston, which is at conflict with ridiculous lift ban decision?

Because the ban was lifted by a judge, many very bad and dangerous people may be pouring into our country. A terrible decision

What is our country coming to when a judge can halt a Homeland Security travel ban and anyone, even with bad intentions, can come into U.S.?

Because I understand that the President doesn’t read books, he may not be over-familiar with the advice given by Alexander Hamilton all those years ago, which I recalled when I spoke in Sofia in 2001 about the critical importance of upholding the rule of law and the independence of the judiciary:

“In my view, those who care about the independence of the judiciary and the rule of law in the countries of Central and Eastern Europe would do well to consider the arrangements made in a number of different countries, and to select those features that are most appropriate for their own culture and historical traditions. They would always be wise to remember the words of Alexander Hamilton, written in the United States over 200 years ago:

‘The judiciary is beyond comparison the weakest of the three departments of power; … it can never attack with success either of the other two; … all possible care is requisite to enable it to defend itself against their attacks.

…The benefits of the integrity and moderation of the judiciary have already been felt in more States than one; and though they may have displeased those whose sinister expectations they may have disappointed, they must have commanded the esteem and applause of the virtuous and disinterested…'”[1]

 

[1] Alexander Hamilton, The Federalist Papers No 78.

One thought on “President Trump and the Courts: The rival submissions in the Court of Appeals

  1. Pingback: Sir Henry Brooke’s blogging turns to Donald Trump – Bermuda Legal

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