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Bipartisan Ex-Senior US Officials to Federal Court: Trump’s Immigration Order Endangers National Security

 

Overnight tonight, the plaintiffs in Washington v. Trump are expected to file their brief in the Ninth Circuit opposing the government’s motion to overturn the district court’s Friday order, which blocked the key provisions of President Trump’s controversial January 27 Executive Order on immigration. Especially given the compressed timing, the plaintiffs will be joined by a startling battery of amici, including major corporations, leading scholars, and senior US government officials from the Clinton, Bush, and Obama administrations. Although there’s plenty to write about each of these filings, the last one is perhaps the most newsworthy: The filing is signed by ten former officials–including Secretaries Albright, Kerry, Napolitano, and Panetta; General Michael Hayden (who, at times, ran both the CIA and the NSA); and Ambassador Rice, plus others who held top national security and/or foreign relations positions across Republican and Democratic administrations. And as relevant here, the statement and emphatically rejects any argument that the Executive Order in any way benefits U.S. national security. As the former officials write,

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.

The statement also assesses that “the Order will endanger intelligence sources in the field,” which is notable since the signatories include John McLaughlin and Michael Morell, who served at different points as Deputy Director and Acting Director of the CIA during the George W. Bush Administration.

The group’s statement also calls into doubt any deference that might normally be given to executive branch decision-making. “The ‘considered judgment’ of the President in the prior cases where courts have deferred was based upon administrative records showing that the President’s decision rested on cleared views from expert agencies,” their statement reads. “Here, there is little evidence that the Order underwent a thorough interagency legal and policy processes designed to address current terrorist threats [and] we know of no interagency process underway before January 20, 2017 to change current vetting procedures.”

At this preliminary stage in the litigation, the government’s central argument for leaving the Executive Order in place is because putting it on hold threatens national security. Indeed, here’s one of President Trump’s tweets to that effect from Sunday:

The declaration by these ten former officials confirms what most of us already suspected to be true–that it’s just not the case that “many very bad dangerous people” were “pouring into our country” prior to the Executive Order, and that, if anything, it’s the Executive Order itself, and not preexisting immigration laws and policies, that poses a threat to our national security. A powerful message, indeed, and one that comes from folks who know of what they speak…

 

Image: Then-Principal Deputy Director of National Intelligence Michael Hayden listens to statements during a hearing before the Senate Select Intelligence Committee on Capitol Hill February 2, 2006. The hearing was focused on the threats that the U.S. is facing. (Alex Wong/Getty)

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About the Author

Co-Editor-in-Chief of Just Security, Professor of Law at the University of Texas School of Law Follow him on Twitter (@steve_vladeck).