The Ban

Whether you call it the Muslim Ban or the Travel Ban, I cannot help but think of Giorgio Agamben's Homo Sacer whenever the issue of Trump's poorly conceived executive order blocking immigration from seven Muslim-majority nations. It is intriguing the way that Trump's candidacy and now his presidency has ended up revealing so much of the guts of the political game in the United States, that it threatens to rend the whole thing asunder. What I mean by this is that politics is a game that is designed to keep anyone from fundamentally changing or challenging anything. A narrow range of ideological options are offered, neither of which would change much about the structure of society or the distribution of power. As long as everyone plays their roles, you could argue that revolution in both positive or negative sense is avoided. But Trump's refusal to be a typical politician or leader or even just a serious, mature person is leading to a crisis where the guts, the bones, the meat of the US, which for any system is never particularly tough or durable, keeps being revealed through his behavior. That is why so many people are against him and the minority of people in the US who helped give him power. All presidents have power, but Trump doesn't invoke his power the way most others do, whereby they warp it or wrap it up, so that the sovereign remnants of it are not revealed. Trump plays no such games and as such he appear to operate without the pretense of power belonging anywhere else except in his hands and with those who support or like him. When I first read through Agamben's work in graduate school, it was with my dissertation about Guam and the role it plays in the production of America's sovereignty in mind. But now I may return to his books with Trump in mind.

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Appeals court unanimously rejects Trump on travel ban
by
By Melanie Zanona and Katie Bo Williams
The Hill 
2/9/17 

A San Francisco-based appeals court on Thursday delivered a stinging rebuke of President Trump's executive order on immigration and refugees, rejecting the administration’s request to resume the travel ban and setting up a potential showdown in the Supreme Court.

The 9th U.S. Circuit Court of Appeals ruled unanimously that a nationwide restraining order against Trump’s temporary travel ban may continue while a federal judge considers a lawsuit over the policy, and it forcefully asserted the judiciary’s independent authority to act as a check on executive power.

"We hold that the government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay," the court said.

The three-judge panel hearing the case included Judges William C. Canby Jr., a Jimmy Carter appointee; Richard R. Clifton, a George W. Bush appointee; and Michelle T. Friedland, a Barack Obama appointee.The decision is narrowly focused on the question of whether the ban should be blocked while the courts consider its lawfulness — but the three-judge panel nevertheless issued a scathing takedown of almost all of the government’s arguments.

Trump immediately fired back on the ruling, tweeting: “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!”

In the short term, the ruling means that refugees and immigrants from seven Muslim-majority countries can continue to enter the U.S. under normal vetting procedures. The case is expected to be quickly appealed to the Supreme Court, which remains short-handed. A 4-4 deadlock would leave the 9th Circuit’s ruling in place.

Washington state Attorney General Bob Ferguson, who had sued over the ban, said that the 9th Circuit decision “effectively granted everything we sought.”

The strongly worded decision comes amid continuing controversy over Trump’s attacks on the federal judge who issued the initial restraining order, James Robart, a George W. Bush appointee. The president earlier in the week referred to Robart as a “so-called judge," calling his ruling “ridiculous.”

The appeals court ruled that not only was the government unable to demonstrate that leaving the restraining order in place would cause irreparable injury, it was not able to convince the court that its appeal was even likely to be successful — a critical standard that it must meet at this early stage in the process.

Perhaps most centrally, the court dinged the administration for failing to provide evidence that an alien from any of the countries named in Trump’s order had carried out a terrorist attack in the United States.

Justice Department lawyer August Flentje had argued in a hearing Tuesday that blocking the order “overrides the President’s national-security judgment about the level of risk” — in other words, that Trump’s determination that there was a sufficient danger to justify the ban should have been adequate evidence for the court to allow it to proceed.

But the 9th Circuit, writing as a unified court, was unconvinced, saying that the argument “runs contrary to the fundamental structure of our constitutional democracy.”

"Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all. We disagree," they wrote.

"In short, although courts owe considerable deference to the President's policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action."

The controversial order, levied late last month, banned travelers from Iran, Iraq, Syria, Yemen, Sudan, Libya and Somalia for 90 days and almost immediately sparked legal challenges, including this one on behalf of the states of Minnesota and Washington. The order also suspended the refugee resettlement program for 120 days, with an indefinite ban on refugees from Syria.

The states argued that the ban was motivated by religious discrimination, violated due process rights and endangered U.S. national security, rather than enhanced it.

The Trump administration was unable to convince the court that the ban did not violate due process rights — such as providing notice and a hearing prior to restricting an individual’s ability to travel.
The government had argued that due process rights were not violated because the White House counsel, several days after the ban was implemented, issued guidance stating that the order did not apply to green card holders — and that other individuals were not citizens and therefore had no due process rights.

The court, whose decision does not strictly rule on the constitutionality of the order itself, rejected both arguments, raising red flags for its arguments in legal battles to come.

The protections provided by the Fifth Amendment are not limited to citizens, the court insisted — before going on to chide the administration for its “shifting interpretations” of the order.

“We cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings,” they wrote.

The panel reserved judgment on whether the ban constitutes religious discrimination, but argued that the states had raised “serious allegations and present significant constitutional questions.”

While Democrats praised the ruling as a victory for religious liberty, conservatives immediately leapt on the ruling as a sign of a politicized judiciary.

“No foreigner has a constitutional right to enter the United States and courts ought not second-guess sensitive national-security decisions of the president,” Sen. Tom Cotton (R-Ark.) said in a statement that called the 9th Circuit “the most notoriously left-wing court in America.”

Trump spoke briefly to reporters, calling the ruling “a political decision," according to NBC News.

He said he hadn’t conferred yet with his new attorney general, Jeff Sessions, but predicted the administration would ultimately prevail.

"No this is just a decision that came down but we're gonna win the case,” he told the network.

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 New Trump travel ban order nearing completion
by Ariane de Vogue and Tal Kopan
CNN
2/21/17

Washington (CNN)The Trump administration is planning to roll out as early as this week a revised executive order on immigration that the President says will "protect our people" while at the same time pass muster with courts that halted an earlier version.

Sources said the new order will clarify a point that caused confusion the first time around: The executive order will not impact green card holders. 

"The President is contemplating releasing a tighter, more streamlined version of the first executive order," Homeland Security Secretary John Kelly said at the Munich Security Conference over the weekend. Acknowledging the rushed rollout of the previous order that caused chaos in airports across the country and widespread demonstrations, Kelly said that officials are working on a "phase in" period for parts of the order to take effect.

The new order is also expected to address concerns of the 9th Circuit federal appeals court, which blocked the original order, that travelers' due process rights were not being respected by giving detailed notice of restrictions for those with current or pending visas. Kelly said the goal was "to make sure that there's no one, in a sense, caught in the system of moving from overseas to our airports, which happened on the first release" of the order.

Trump's original order, issued a week into his presidency, barred citizens of seven Muslim-majority countries -- Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen -- from entering the US for 90 days, all refugees for 120 days and refugees from Syria indefinitely.

 

"The new order is going to be very much tailored to what I consider to be a very bad decision," Trump said during his White House news conference Thursday, referring to the courts' blocking of its implementation.

Asked for comment on the possible order, White House spokesman Michael Short said, "The only thing that matters is what the President signs. When we have something final to announce on that front we will let you know."

Scope of new order

A source familiar with the process said that the new order was still being drafted over the weekend. The source said that it was also likely to address religious discrimination issues by modifying or removing one section of the original order. That section, 5 (b), said that the Secretary of Homeland Security, "is further directed to make changes, to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual's country of nationality."

One sticking point remained whether existing non-immigrant visas would be revoked. A source familiar with the discussions said the Justice Department preferred to not revoke existing non-immigrant visas, while the White House and Department of Homeland Security were considering doing so.

"[I]f they're on an airplane and inbound, they will be allowed to enter the country," Kelly said. "And this, again, is just a pause until we look at a number of countries -- seven in particular -- and look at their vetting processes, how reliable they are -- and I will tell you right now they're not very reliable."

Another area of concern for critics remains special immigrant visas, a class of visas given to Afghans and Iraqis who helped the US military in the wars there, including interpreters.

Rep. Adam Kinzinger, a Republican from Illinois who served in Iraq and Afghanistan, told CNN's "New Day" on Monday that he fears that the new order would ban even those individuals from entering if they're not green card holders.

"I hope they're not on the new executive order, but it sounds like they may be," Kinzinger said.

Still up in the air, over the weekend, was a different section that suspended the entry of nationals of Syria as refugees. According to the source, there are opposing views on whether to exclude or modify the provision.

Lawsuits expected

Challengers to the original executive order are anxiously awaiting the new one.

Immigration attorney David Leopold argued that the very fact that a new order is being drafted "is a clear admission by the Trump administration that the President directly violated immigration law and the Constitution when he ordered a sweeping ban on Muslims and Syrian refugees in late January."

Lee Gelernt, an attorney with the ACLU who is challenging the order in New York courts, said he expects the new order will exempt green card holders, but warned that he expected other aspects of the new order to present legal problems. "If the only real change is to exempt green card holders, than the legal challenges will continue full force," he said.

"This debate is critical both legally and policy-wise," said Leon Fresco, an immigration attorney and former Obama administration Justice official. "Obviously, it is important not to run afoul of existing court orders precluding cancellation of visas. But even more importantly, it sends a disconcerting signal to all potential foreign visitors when the US cancels visas for entire groups on short notice rather than canceling visas due to the actions of individual visa holders."

Consulting Congress?

One of lawmakers' major concerns with the initial rollout of the order was that they were not consulted. When Kelly testified in front of the House Homeland Security Committee, he faced repeated requests for assurances that members of Congress would be considered when drafting further executive orders.

"You have an extreme vetting proposal that didn't get the vetting it should have had," Republican Sen. Rob Portman of Ohio told CNN's Jake Tapper on Sunday's "State of the Union" last month. "As the result, in the implementation, we've seen some problems."

But despite a pledge from the White House to consult legislators in crafting policies, multiple Hill sources said they remained out of the loop on the order as of Monday morning.

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 I Was a Muslim in Trump's White House
by Rumana Ahmed
Feb. 23, 2017
The Atlantic

In 2011, I was hired, straight out of college, to work at the White House and eventually the National Security Council. My job there was to promote and protect the best of what my country stands for. I am a hijab-wearing Muslim woman––I was the only hijabi in the West Wing––and the Obama administration always made me feel welcome and included.Like most of my fellow American Muslims, I spent much of 2016 watching with consternation as Donald Trump vilified our community. Despite this––or because of it––I thought I should try to stay on the NSC staff during the Trump Administration, in order to give the new president and his aides a more nuanced view of Islam, and of America's Muslim citizens.

I lasted eight days.

When Trump issued a ban on travelers from seven Muslim-majority countries and all Syrian refugees, I knew I could no longer stay and work for an administration that saw me and people like me not as fellow citizens, but as a threat.

The evening before I left, bidding farewell to some of my colleagues, many of whom have also since left, I notified Trump’s senior NSC communications adviser, Michael Anton, of my departure, since we shared an office. His initial surprise, asking whether I was leaving government entirely, was followed by silence––almost in caution, not asking why. I told him anyway.

I told him I had to leave because it was an insult walking into this country’s most historic building every day under an administration that is working against and vilifying everything I stand for as an American and as a Muslim. I told him that the administration was attacking the basic tenets of democracy. I told him that I hoped that they and those in Congress were prepared to take responsibility for all the consequences that would attend their decisions.

He looked at me and said nothing.

It was only later that I learned he authored an essay under a pseudonym, extolling the virtues of authoritarianism and attacking diversity as a “weakness,” and Islam as “incompatible with the modern West.”

My whole life and everything I have learned proves that facile statement wrong.

My parents immigrated to the United States from Bangladesh in 1978 and strove to create opportunities for their children born in the states. My mother worked as a cashier, later starting her own daycare business. My father spent late nights working at Bank of America, and was eventually promoted to assistant vice president at one of its headquarters. Living the American dream, we’d have family barbecues, trips to Disney World, impromptu soccer or football games, and community service projects. My father began pursuing his Ph.D., but in 1995 he was killed in a car accident.

I was 12 when I started wearing a hijab. It was encouraged in my family, but it was always my choice. It was a matter of faith, identity, and resilience for me. After 9/11, everything would change. On top of my shock, horror, and heartbreak, I had to deal with the fear some kids suddenly felt towards me. I was glared at, cursed at, and spat at in public and in school. People called me a “terrorist” and told me, “go back to your country.”

My father taught me a Bengali proverb inspired by Islamic scripture: “When a man kicks you down, get back up, extend your hand, and call him brother.” Peace, patience, persistence, respect, forgiveness, and dignity. These were the values I’ve carried through my life and my career.

I never intended to work in government. I was among those who assumed the government was inherently corrupt and ineffective. Working in the Obama White House proved me wrong. You can’t know or understand what you haven’t been a part of.

Still, inspired by President Obama, I joined the White House in 2011, after graduating from the George Washington University. I had interned there during my junior year, reading letters and taking calls from constituents at the Office of Presidential Correspondence. It felt surreal––here I was, a 22-year-old American Muslim woman from Maryland who had been mocked and called names for covering my hair, working for the president of the United States.

In 2012, I moved to the West Wing to join the Office of Public Engagement, where I worked with various communities, including American Muslims, on domestic issues such as health care. In early 2014, Deputy National Security Advisor Ben Rhodes offered me a position on the National Security Council (NSC). For two and a half years I worked down the hall from the Situation Room, advising President Obama’s engagements with American Muslims, and working on issues ranging from advancing relations with Cuba and Laos to promoting global entrepreneurship among women and youth.

A harsher world began to reemerge in 2015. In February, three young American Muslim students were killed in their Chapel Hill home by an Islamophobe. Both the media and administration were slow to address the attack, as if the dead had to be vetted before they could be mourned. It was emotionally devastating. But when a statement was finally released condemning the attack and mourning their loss, Rhodes took me aside to to tell me how grateful he was to have me there and wished there were more American Muslims working throughout government.  America’s government and decision-making should reflect its people.

Later that month, the evangelist Franklin Graham declared that the government had “been infiltrated by Muslims.” One of my colleagues sought me out with a smile on his face and said, “If only he knew they were in the halls of the West Wing and briefed the president of the United States multiple times!” I thought: Damn right I’m here, exactly where I belong, a proud American dedicated to protecting and serving my country.

Graham’s hateful provocations weren’t new. Over the Obama years, right-wing websites spread  an abundance of absurd conspiracy theories and lies, targeting some American Muslim organizations and individuals––even those of us serving in government. They called us “terrorists,” Sharia-law whisperers, or Muslim Brotherhood operatives. Little did I realize that some of these conspiracy theorists would someday end up in the White House.

Over the course of the campaign, even when I was able to storm through the bad days, I realized the rhetoric was taking a toll on American communities. When Trump first called for a Muslim ban, reports of hate crimes against Muslims spiked. The trend of anti-Muslim hate crimes is ongoing, as mosques are set on fire and individuals attacked––six were killed at a mosque in Canada by a self-identified Trump supporter.

Throughout 2015 and 2016, I watched with disbelief, apprehension, and anxiety, as Trump’s style of campaigning instigated fear and emboldened xenophobes, anti-Semites, and Islamophobes. While cognizant of the possibility of Trump winning, I hoped a majority of the electorate would never condone such a hateful and divisive worldview.

During the campaign last February, Obama visited a Baltimore mosque and reminded the public that “we’re one American family, and when any part of our family starts to feel separate … It’s a challenge to our values.” His words would go unheeded by his successor.

The climate in 2016 felt like it did just after 9/11. What made it worse was that this fear and hatred were being fueled by Americans in positions of power. Fifth-grade students at a local Sunday school where I volunteered shared stories of being bullied by classmates and teachers, feeling like they didn’t belong here anymore, and asked if they might get kicked out of this country if Trump won. I was almost hit by a car by a white man laughing as he drove by in a Costco parking lot, and on another occasion was followed out of the metro by a man screaming profanities: “Fuck you! Fuck Islam! Trump will send you back!”  

Then, on election night, I was left in shock.

The morning after the election, we lined up in the West Colonnade as Obama stood in the Rose Garden and called for national unity and a smooth transition. Trump seemed the antithesis of everything we stood for. I felt lost. I could not fully grasp the idea that he would soon be sitting where Obama sat.

I debated whether I should leave my job. Since I was not a political appointee, but a direct hire of the NSC, I had the option to stay. The incoming and now departed national security adviser, Michael Flynn, had said things like “fear of Muslims is rational.” Some colleagues and community leaders encouraged me to stay, while others expressed concern for my safety. Cautiously optimistic, and feeling a responsibility to try to help them continue our work and be heard, I decided that Trump's NSC could benefit from a colored, female, hijab-wearing, American Muslim patriot.

The weeks leading up to the inauguration prepared me and my colleagues for what we thought would come, but not for what actually came. On Monday, January 23, I walked into the Eisenhower Executive Office Building, with the new staffers there. Rather than the excitement I encountered when I first came to the White House under Obama, the new staff looked at me with a cold surprise. The diverse White House I had worked in became a monochromatic and male bastion.

The days I spent in the Trump White House were strange, appalling and disturbing. As one staffer serving since the Reagan administration said, “This place has been turned upside down. It’s chaos. I’ve never witnessed anything like it.” This was not typical Republican leadership, or even that of a businessman. It was a chaotic attempt at authoritarianism––legally questionable executive orders, accusations of the press being “fake,” peddling countless lies as “alternative facts,” and assertions by White House surrogates that the president’s national security authority would “not be questioned.”

The entire presidential support structure of nonpartisan national security and legal experts within the White House complex and across federal agencies was being undermined. Decision-making authority was now centralized to a few in the West Wing. Frustration and mistrust developed as some staff felt out of the loop on issues within their purview. There was no structure or clear guidance. Hallways were eerily quiet as key positions and offices responsible for national security or engagement with Americans were left unfilled.

I might have lasted a little longer. Then came January 30. The executive order banning travelers from seven Muslim-majority countries caused chaos, without making America any safer. Discrimination that has existed for years at airports was now legitimized, sparking mass protests, while the president railed against the courts for halting his ban. Not only was this discrimination and un-American, the administration’s actions defending the ban threatened the nation’s security and its system of checks and balances.

Alt-right writers, now on the White House staff, have claimed that Islam and the West are at war with each other. Disturbingly, ISIS also makes such claims to justify their attacks, which for the most part target Muslims. The Administration’s plans to revamp the Countering Violent Extremism program to focus solely on Muslims and use terms like “radical Islamic terror,” legitimize ISIS propaganda and allow the dangerous rise of white-supremacist extremism to go unchecked.

Placing U.S. national security in the hands of people who think America’s diversity is a “weakness” is dangerous. It is false.

People of every religion, race, ethnicity, sexual orientation, gender, and age pouring into the streets and airports to defend the rights of their fellow Americans over the past few weeks proved the opposite is true––American diversity is a strength, and so is the American commitment to ideals of  justice and equality.

American history is not without stumbles, which have proven that the nation is only made more prosperous and resilient through struggle, compassion and inclusiveness. It’s why my parents came here. It’s why I told my former 5th grade students, who wondered if they still belonged here, that this country would not be great without them.

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 Legal battle over travel ban pits Trump's powers against his own words

February 8, 2017

Reuters  

By Mica Rosenberg | NEW YORK

 

A U.S. appeals court is weighing arguments for and against President Donald Trump's temporary travel ban, but its decision this week may not yet answer the underlying legal questions being raised in the fast-moving case.
The 9th U.S. Circuit Court of Appeals in San Francisco is expected to rule only on the narrow question of whether a lower court's emergency halt to an executive order by Trump was justified. Trump signed the order on Jan. 27 barring citizens from seven Muslim-majority countries for 90 days and halted all refugee entries for four months.

The appeals court has several options. It could kick the case back to lower court judge James Robart in Seattle, saying it is premature for them to make a ruling before he has had a chance to consider all the evidence. Robart stopped Trump's order just a week after he issued it and before all the arguments had been developed on both sides.

Or the panel of three appellate judges could side with the government and find halting the order was harmful to national security, reinstating it while the case continues.

Their decision is "one step in what will be a long, historic case," Stephen Yale-Loehr, a professor at Cornell University Law School who specializes in immigration. Ultimately, the case is likely to end up in the U.S. Supreme Court, legal experts said.

The case is the first serious test of executive authority since Trump became president on Jan. 20, and legal experts said there were three main issues at play for the judiciary.

The broad questions in the case are whether the states have the right to challenge federal immigration laws, how much power the court has to question the president's national security decisions, and if the order discriminates against Muslims.

Washington state filed the original lawsuit, claiming it was hurt by the ban when students and faculty from state-run universities and corporate employees were stranded overseas.

Trump administration lawyer August Flentje argued at an appeals court hearing on Tuesday that the states lack "standing" to sue the federal government over immigration law, but his arguments were questioned by the judges.

NATIONAL SECURITY

If the court decides the states are allowed to bring the case, the next major question is about the limits of the president's power.

"Historically courts have been exceedingly deferential to governmental actions in the immigration area," said Jonathan Adler, a Case Western Reserve University School of Law professor. Though, he added, "the way they carried it out understandably makes some people, and perhaps some courts, uneasy with applying the traditional rules."

Trump issued the order late on a Friday and caused chaos at airports as officials struggled to quickly change procedures.

At Tuesday's hearing, Judge Richard Clifton, an appointee of Republican president George W. Bush and Judge William Canby, an appointee of Democratic president Jimmy Carter, pushed the government to explain what would happen if Trump simply decided to ban all Muslims from entering the United States. "Would anybody be able to challenge that?" Canby asked.

Flentje emphasized that the order did not ban Muslims. He said the president made a determination about immigration policy based on a legitimate assessment of risk.

The government has said its order is grounded in a law passed by congress that allows the president to suspend the entry of "any class of aliens" that he deems "would be detrimental to the interests of the United States."

When asked by the third judge - Michelle Friedland, appointed by Democrat Barack Obama - if that meant the president's decisions are "unreviewable" Flentje, after a pause, answered "yes." When pressed, Flentje acknowledged, however, that constitutional concerns had been raised about the order.

RELIGIOUS DISCRIMINATION

One of the main concerns is allegations by the states, civil rights groups, some lawmakers and citizens that the order discriminates in violation of the constitution's First Amendment, which prohibits favoring one religion over another.

The judges will have to decide whether to look exclusively at the actual text of the president's order, which does not mention any particular religion, or consider outside comments by Trump and his team to discern their intent.

Washington state's attorney Noah Purcell told the hearing that even though the lawsuit is at an early stage, the amount of evidence that Trump intended to discriminate against Muslims is "remarkable." It cited Trump's campaign promises of a "total and complete shutdown of Muslims entering the United States."

In a tweet on Monday night, Trump said "the threat from radical Islamic terrorism is very real" urging the courts to act quickly.

Government lawyer Flentje countered Purcell by saying there was danger in second guessing Trump's decision-making about U.S. security "based on some newspaper articles."

Clifton asked about statements on Fox News by Trump adviser Rudolph Giuliani, former New York mayor and former prosecutor, that Trump had asked him to figure out how to make a Muslim ban legal.

"Do you deny that in fact the statements attributed to then candidate Trump and to his political advisers and most recently Mr. Giuliani?" Clifton asked. "Either those types of statements were made or not," said Clifton. "If they were made it is potential evidence."

(Reporting by Mica Rosenberg in New York; Additional reporting by Lawrence Hurley in Washington and Nathan Layne in New York; Editing by Noeleen Walder and Grant McCool)