Trump's Ominous Dismissal of Sally Yates

President Trump's dismissal tonight of Acting Attorney General  Sally Yates makes clear, if it wasn't already, that America is entering uncharted waters.  Yates, a holdover from the Obama administration, had earlier refused to enforce Trump's executive order on immigration, stating, accurately, it was neither wise nor just. That Trump should fire her was expected. But the White House statement is chilling. Trump charges that Yates "betrayed" the Justice Department.  While it exceeds 140 characters,  the statement reads like a Trump Twitter post, at least in part  It signals Trump's complete disregard of legitimate dissent and dictatorial impulses, which he is now acting on with the full force of the executive branch.  Those who support him are "great people" and his "good friends".  Those who oppose him are his--and now the country's--"enemies." Other nations have been down this dark (read: authoritarian) path before.  But these are unprecedented times for the United States.

Federal Judge Rebuffs Trump on Refugee Ban

This evening, Judge Ann M. Donnelly, a U.S. District Judge for the Eastern District of New York (in Brooklyn) entered a stay that blocks (at least temporarily) President Trump's efforts to deport refugees and others who had been trapped at airports across the country. The judge found, in short, that the petitioners had shown a sufficient likelihood of success on their Due Process and Equal Protection Clause challenges and faced irreparable harm if deported.  Much remains to be seen, including whether the individuals will remain in detention pending resolution of the case as well as the fate of those who have yet to travel to the United States. But, either way, a big win for the Constitution and for the country, and a high-profile set-back for Trump.   I will have more to say about this important ruling later. For now, kudos to the ACLU and other groups who brought this action.

Trump's First Week: Preclude to a Nightmare

President Donald J. Trump right off the bat dashed any remaining hopes that he would moderate his extremist views upon assuming the Nation's highest office.  (Though Trump's statements and behavior both during the campaign and following his election made harboring such hopes naive). Trump immediately launched a full-out assault on civil liberties, causing many Americans (myself included) to wonder just what kind of a country we were living in.

Trump has no respect for the Constitution, for the office of the presidency, or for human dignity. He has proven he will pander to the lowest common denominator at every opportunity, mixing extraordinary assertions of executive power with a blatant disregard for the truth.  Trump will, in short, provide a supreme test of the durability of the nation's institutions and system of checks and balances.

The President's assaults on the Constitution and human rights came fast and furious, all enveloped by the now familiar clouds of lies and deceit, including Trump's continued assertion of the canard that millions of illegal immigrants illegally voted in the election, robbing him of a popular majority. Trump used that falsehood not only to sooth his colossal ego, but also to call for a major investigation into voting fraud.  In a hopeful sign, state officials from both parties are rejecting Trump's claims of massive voting fraud. But the move showed the depths of Trump's authoritarian impulses.  Trump intends to use claims of voting fraud to generate momentum for voter ID laws and other anti-democratic measures designed to restrict the franchise among those who oppose Trump and the Republican party.  And because it benefits them, the danger is that many in the GOP will go along.  Further restrictions at the ballot box will help blunt the potential for the political process to act as a check on a Trump administration while cementing Republican control of government in the long run.

Trump's executive order on refugees, issued on Friday, represents a profound assault on human values and the rule of law.  The order, among other things, immediately suspends admission of all refugees to the United States for 120 days; bars refugees from Syria indefinitely;  suspends entry for 90 days of individuals from seven predominantly Muslim countries linked to concerns about terrorism; and prioritizes refugees fleeing religious persecution (a provision almost certainly intended to favor Christians).  The order violates nondiscrimination principles under the Constitution and U.S. commitments under international law, including human rights and refugee treaties.  Its human consequences are already being felt. News reports describe individuals being detained at ports of entry, including this heartbreaking story of Hameed Khalid Darweesh, who had worked for the United States in Iraq for more than 10 years and who was traveling to the U.S. to join his wife and young son.  Trump could not have given extremist groups better propaganda material to undermine support for the United States in the Arab and Muslim world if he tried.

The refugee order is only one of several assaults on civil liberties in Trump's first week.  Trump is also seeking broader powers to deport individuals in the country.  An order signed on Wednesday targets, for example, any person who has "committed acts that constitute a chargeable criminal offense"or who has "engaged in fraud or willful misrepresentation in connection with any official matter or application before a government agency."  The order threatens to sweep in not only individuals convicted of violent offenses, but also anyone federal authorities think has committed a crime (however minor) or those who, for example, used a false Social Security Number to obtain employment, as many undocumented immigrants do (to the benefit of millions of American employers and consumers).  Trump also vowed to crackdown on sanctuary cities, seeking to eliminate any opposition to his plans. (So much for a principled position on federalism).  For good measure, Trump pressed ahead with his plan to build the U.S.-Mexico border, and impose the costs on Mexico.  The wall is a destructive approach to addressing the complex challenges of migration--much of which actually benefits the United States--and has already inflamed tensions with Mexico, America's third largest trading partner.

There are more issues that warrant comment and concern, including the leak of a draft executive order on detention and interrogation that promises to maintain the U.S. detention center at Guantanamo Bay, contemplates reopening of lawless CIA black sites, and toys with resurrecting torture, which Trump, contrary to facts, claims works and which, in any event, is illegal.  Defense Secretary James Mattis and CIA Director Mike Pompeo were reportedly "blind-sided" by the report.  (Mattis, one of the few competent and responsible officials Trump's cabinet, has been particularly vocal on not returning to torture).  Yet, despite positive signs of some internal resistance, the current president's authoritarian impulses and disregard for truth and transparency have prompted concerns about a return to Bush-era lawlessness in the detention and interrogation of terrorism suspects.

Amid the unfolding nightmare, there were a few signs of hope.  A district judge refused to dismiss a lawsuit brought by the ACLU on behalf of several victims against two psychologists, James Mitchell and Bruce Jessen, who, as private contractors, helped create and implement the CIA torture program during the Bush administration.  Court challenges have already been filed against Trump's order suspending the admission of refugees.  Maintaining public and political opposition to Trump will continue to be important.  But, as this week has shown, courts will remain the first line of defense, as they have in the past.

Trump's Anti-First Amendment Instincts on Display from the Outset

President Donald Trump wasted no time in making clear his antipathy to the spirit--if not the letter--of the First Amendment would carry forward into the Oval Office.  The new White House Press Secretary, Sean Spcier, attacked the press for accurately reporting the size of the crowd at Trump's inauguration, which, as the press noted, was significantly lower than the crowd at President Obama's second inaugural.  This moment crystalized two key fears about a Trump administration.  First, it showed Trump's flagrant disregard for facts (press accounts were supported by evidence, including DC Metro ridership and aerial photographs).  Second, it showed Trump's disdain for the press-- or, more accurately-- for a press that does not laud and adore him.  There is no question that Trump's impulses are authoritarian.  The only question is whether, and to what extent, he will act on these impulses to chill and curtail First Amendment freedoms in America.

The Post 9/11 Immigration Sweeps: A Test Case for the Rule of Law in the Supreme Court

Today, the Supreme Court will hear oral argument in Ziglar v. Abassi, which arises out of a class action lawsuit for the dragnet immigration sweeps after the 9/11 attacks, in which more than 750 men from South Asian and Middle Eastern countries were rounded up and held in harsh conditions of confinement, solely because of their race, religion, or country of origin.  The suit seeks damages against senior level Justice Department officials, including former AG John Ashcroft and former FBI director Robert Mueller, as well as wardens of the federal detention center in New York where a number of the men were held.  

As I've explained in more detail here, the case represents an important test of the Judiciary's commitment to enforcing two key principles: first, that even in times of insecurity, the government cannot target people based on their race, religion, or ethnicity; and second, that when federal officials violate fundamental constitutional norms, the victims must have an opportunity to hold them accountable in court.  These principles apply not only to low-level officials, but also to the most senior government officials.  As President-elect Donald Trump prepares to take office, it is particularly important for the Supreme Court to affirm that no one is above the law.

The Legality of the Use of Force Is Not a Political Question

America must be able to rely on its courts to help protect the rule of law during the Trump administration.  That is one reason I found this recent decision by a judge for the U.S. federal court in Washington, DC, so concerning.  In this case, Smith v. Obama, a U.S. army captain, who had recently been deployed in Kuwait, challenged the legality of the U.S. armed conflict against ISIS, claiming it was not authorized by Congress and, therefore, violated the War Powers Resolution, the Vietnam War-era law that requires congressional approval when president engages U.S. forces in hostilities beyond 60 days.  Whether Congress has sanctioned the conflict against ISIS, as required by the War Powers Resolution, is a legal question the court should have decided, regardless of what one thinks about the merits.  But instead the court relied on the political question doctrine as a ground for dismissing the suit without reaching the merits.  I elaborate in this post here at Just Security why this decision is problematic, especially as the country prepares for an administration that could engage in overly broad and aggressive uses of presidential war powers.

Accountability for Cross-Border Shootings

This Term, the U.S. Supreme Court will be hearing several important cases that implicate the role of the Constitution and federal courts as checks on gross misconduct by federal officials.  The election of Donald Trump has magnified the importance of these cases, placing into sharp relief the battle over government accountability.  I've posted thoughts here on one of those cases, Hernandez v. Mesa, which presents the question of whether the family of a Mexican teenager is entitled to a day in court against a U.S. Border Patrol agent who shot and killed the teenager.  Since the suit is at the motion to dismiss stage, all of the allegations--including that the cross-border shooting was wholly without justification--are assumed to be true.  Thus, the question is whether U.S. courts will provide foreign nationals located just outside America's borders the possibility of pursuing a remedy for the egregious constitutional violation of arbitrary killing. As I explain, the integrity of a meaningful system of government accountability depends upon it.

Coming Soon!

A new blog, devoted to protecting and preserving civil liberties in the Age of Trump and the rise of right-wing movements around the world.