On April 25, the U.S. Supreme Court will hear oral arguments in Trump v. Hawaii, the case testing the statutory and constitutional validity of President Donald Trump’s travel ban. Two amicus briefs, which were both filed last week, squarely address the administration’s attempt to invoke U.S. national security as a purported justification for the ban. The briefs, one submitted by a nonpartisan group of former military leaders and the other a bipartisan group of former intelligence and other U.S. national security officials, flip the administration’s arguments on their head.
In one amicus brief, twenty-six retired generals and admirals urge the Court to invalidate the ban, alternatively called Travel Ban 3.0, Muslim Ban 3.0, and EO-3 (disclaimer: I personally worked on this brief as part of the team at Human Rights First that helped prepare it). The Ninth Circuit invalidated EO-3, which the administration argues has “severely restricted the ability of this and future Presidents to protect the nation.” As amici curiae, the nonpartisan group of retired flag officers of the U.S. Armed Forces submit that the travel ban won’t protect the nation. They say it harms U.S. national security interests by perpetuating the perception that the United States is hostile to Muslims and Muslim-majority nations, frustrating relationships with locals in foreign countries and partner governments, undermining U.S. military operations, and “fuel[ing] the propaganda narrative spread by terrorists and others who seek to harm U.S. interests.”
A bipartisan group of fifty-two former national security, foreign policy, and intelligence officials agrees. In a separate amicus brief, the officials contend the travel ban is not “an exercise of the Executive’s foreign policy and national security judgment” that warrants the Court’s customary deference. The government, the former officials point out, has been unable to articulate any national security or foreign policy basis for the ban.
At issue in Trump v. Hawaii is the Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats. Signed on September 24, 2017, the proclamation purports to differ from the two earlier versions of the ban, including the January 2017 executive order that caused chaos, an influx of attorneys, and days-long protests at the nation’s airports. The present version indefinitely bars the entry of nationals from six Muslim-majority countries— Chad, Iran, Libya, Somalia, Syria, and Yemen—as well as North Koreans and some Venezuelan government officials. It also subjects individuals from the Muslim-majority nation of Iraq to heightened vetting procedures.
The two previous bans faced court challenges, and before the Supreme Court could hear the merits of the second ban, its provisions expired. Then came EO-3.
In October 2017, the District Court of Hawaii barred the enforcement of EO-3 against individuals from the six Muslim-majority countries. The Ninth Circuit affirmed, finding that EO-3 violates the Immigration and Nationality Act. On January 5, the administration asked the Supreme Court to intervene in Trump v. Hawaii, presenting three questions: 1) Whether Hawaii’s challenge to the ban is justiciable, meaning whether federal courts can weigh in at all; 2) Whether the ban is a lawful exercise of the president’s authority over immigration; and 3) Whether the district court’s injunction is impermissibly overbroad. The Court accepted those questions and also agreed to address whether the ban violates the Constitution’s Establishment Clause. Although the Establishment Clause question was not before the Ninth Circuit, it was raised in a parallel case at the Fourth Circuit, International Refugee Assistance Project v. Trump. The Fourth Circuit, too, invalidated the ban, and IRAP’s petition for writ of certiorari, asking that its case be joined with Trump v. Hawaii, is pending before the Supreme Court.
The Merits Dispute
In defending the ban, the administration argues that the “Constitution and Acts of Congress both confer on the President broad authority to suspend or restrict the entry of aliens outside the United States when he deems it in the Nation’s interest,” an authority presidents “have routinely invoked to advance national-security and foreign-policy objectives.”
This ban is different from its predecessors, the administration says, because it was based on the findings of a review of worldwide vetting procedures. The countries subject to the ban, the administration argues, do not adequately share information with the United States, or they pose other national security threats. The ban, the administration claims, should “induce those governments to improve their cooperation.”
What’s more, the administration argues that the court should not review Hawaii’s claims, as separation of powers principles preclude judicial review of political branch decisions to exclude the entry of aliens. The government also argues that the Court’s deference is especially warranted on matters of national security.
Hawaii argues that EO-3 is a direct descendent—bearing the same intent and similar effects—of the prior bans. The ban, Hawaii contends, exceeds the president’s authority over immigration, and raises “grave constitutional concerns.”
Agreeing with the government’s line of argument, respondents assert, would result in granting the executive “unbridled power.”
Amicus Brief of Retired Generals and Admirals
My colleagues at Human Rights First and I, in collaboration with pro-bono counsel at the law firm Debevoise and Plimpton, prepared the amicus brief on behalf of a group of retired generals and admirals of the U.S. armed forces. The brief argues that despite EO-3’s stated national-security rationale, the ban harms U.S. national security by perpetuating the perception that the United States is pursuing an anti-Muslim foreign policy agenda. This perception, amici write, is well-founded, not only because of the countries targeted (newly added Chad is also a Muslim-majority country, and restrictions on North Korea and Venezuela have little effect on travel from those countries), but also because of the administration’s public commentary surrounding the bans. Because of this perception, the generals and admirals warn, EO-3 undermines relationships with key allies and individuals whose trust is critical to the success of U.S. military objectives.
The premise of the retired military leaders’ brief is that discrimination against Muslims and Muslim-majority countries—and the perception of such discrimination—discourages cooperation with the U.S. military. The erosion of cooperation, from both locals in foreign countries and foreign governments, makes it more difficult to achieve our military’s strategic objectives. Local individuals in Muslim-Majority countries are discouraged from assisting U.S. troops, for example, as translators and intelligence resources, and the goodwill of local communities where U.S. troops are deployed recedes. The alienation of local individuals and communities, the generals and admirals write, can prolong the presence of U.S. troops in the theater and prevent the reduction of violence in zones of conflict. Special Forces, for instance, rely on the creation of “force multipliers,” a process through which the U.S. military builds the capacity of local partners, with a view to ceding control over security to those forces. The U.S. Army Field Manual on counterinsurgency also emphasizes the importance of building trust with local networks, security forces, and community leaders, in order to displace enemy networks. (That manual was notably coauthored by Gen. David Petraeus and Lt. Gen. James Mattis.)
Trust-based relationships with our allies, the 2018 National Defense Strategy states, enhance “access to critical regions, supporting a widespread basing and logistics system.” In that vein, the generals and admirals note that relationships with partner governments and militaries are not without challenge, including when those allies violate international human rights norms. But EO-3, they argue, adds an additional and unnecessary hurdle to our strategic objectives. In the wake of its inclusion in EO-3, Chad recalled 2,000 troops from a coalition mission against Boko Haram in Niger. The withdrawal of those troops has already had an effect on security there—for both civilian residents and the remaining troops.
The brief also argues that EO-3 endangers deployed U.S. service members by encouraging the perception that the United States will violate international norms and ideals. U.S. compliance with and support for the rule of law enhance the legitimacy of U.S. action in the world, which in turn serves U.S. national security interests. When the United States is viewed as a scofflaw willing to defy the rule of law and international norms, other actors are less likely to comply with those norms.
The anti-Muslim sentiments embedded in the ban also give a propaganda and recruitment victory to U.S. enemies. The Department of Defense dedicates significant resources to battling enemy messaging, and EO-3 feeds directly into the rhetoric of groups like ISIS. Less than a day after the first ban was enacted, ISIS propaganda branded it the “blessed ban.”
Amicus Brief of Former National Security, Foreign Policy, and Intelligence Officials
Harold Koh of the Yale Law School Rule of Law Clinic is counsel of record for a group of 52 former public officials as amici curiae, among them senior officials from Democratic and Republican administrations. Many of these former officials also had access to the U.S. government’s intelligence underlying national security threats until immediately prior to the implementation of the first travel ban.
Amici argue that the Court should not defer to the administration’s assertions that the ban serves national security interests. Any judicial deference to executive determinations of national security and foreign policy, they write, is not warranted in this instance. The administration, amici point out, has presented no credible national security basis for the ban’s sweeping country-based restrictions. Furthermore, they argue, the Court should be more skeptical of the ban’s stated bases because the administration failed to engage in an inter-agency review process for the policy—a process that provides the prudential foundation for judicial deference in some matters of executive national security policy. Not only do the travel bans, they write, fail to serve the national security and foreign policy interests of the United States, but they also do “serious damage” to those interests.
Amici contend that as former senior government officials, they understand the importance of judicial deference to properly developed national security policy. Here, they argue, such deference is unwise. “While the Orders at issue in this case may be about national security, they do not reflect a bona fide national security judgment that merits this Court’s deference.” They worry that if the Court were to defer in this case, where the executive action at issue so clearly defies the policymaking processes and careful review necessary to such deference, “it is difficult to imagine a case in which national security deference would be withheld.”
A concern about unfettered executive discretion, so long as an administration invokes the magic words “national security,” animates both amicus briefs discussed here. The former government officials argue that for such deference to be warranted, there must be “some threshold showing that professional judgment” of national security or foreign policy officials was exercised.
Furthermore, they argue that the ban is overbroad. Systems of vetting which are more tailored to cognizable threats are already in part of the refugee vetting process and the Visa Waiver Program procedures. While EO-3’s blanket, country-based ban claims a justification in preventing terrorism, amici note that the ban’s provisions are ill-suited to the apparent purposes. First, they write, the ban will likely make information-sharing more difficult “by impairing economic and political interchange and spurring anti-American sentiment.” If the administration is concerned with remedying inadequate information-sharing, amici point out, it should have included Belgium in the ban. Instead, nationals of the countries targeted “have committed no deadly terrorist attacks on U.S. soil in the last forty years.”
The former U.S. officials warn that the ban also makes domestic law enforcement more difficult, by alienating American Muslim communities who are often critical sources of intelligence. Furthermore, the ban “has had a devastating humanitarian impact” by “disrupt[ing] the travel of numerous men, women, and children who have themselves been victimized by terrorists.” Lastly, amici argue that the ban will have a negative economic impact, especially in the defense, technology, and medical sectors.
It should go without saying (although perhaps it merits repeating in the present climate) that the human rights, dignity, and equal treatment of people from Muslim-majority countries should not hinge on the benefits they offer to U.S. military, law enforcement, or foreign policy missions. But in light of the gratuitous invocation of “national security” as justification for the systematic vilification of Muslims—a bigotry that has found safe harbor in the current administration’s rhetoric and policies—the arguments of the retired military leaders and former government officials defeat the administration on its own terms.
A decision in the case is expected in late June.
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