Congratulations to District Judge Derrick K. Watson, in Hawaii, who, on Wednesday, issued what the Washington Post described as “a sweeping freeze of President Trump’s new executive order hours before it would have temporarily barred the issuance of new visas to citizens of six Muslim-majority countries and suspended the admission of new refugees.” I wrote about the original ban here, and the rulings shutting it down here and here, and wrote a follow-up about the reissued ban here, on March 7.
With some accuracy, the Post described Judge Watson’s 43-page opinion as “blistering,” adding that it “pointed to Trump’s own comments and those of his close advisers as evidence that his order was meant to discriminate against Muslims,” and noting that Judge Watson “declared there was a ‘strong likelihood of success’ that those suing would prove the directive violated the Constitution.”
In particularly damning language, Judge Watson declared that “a reasonable, objective observer — enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance — would conclude that the Executive Order was issued with a purpose to disfavor a particular religion.”
He then, as the Post put it, “lambasted the government,” in particular, for arguing that the executive order “could not have been religiously motivated because ‘the six countries represent only a small fraction of the world’s 50 Muslim-majority nations, and are home to less than 9% of the global Muslim population,” whereas the “suspension covers every national of those countries, including millions of non-Muslim individuals[.]”
In response to this claim, Judge Watson stated, “The illogic of the Government’s contentions is palpable. The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed.”
As the Post also explained, lawyers for the State of Hawaii argued that “the new entry ban, much like the old, violated the establishment clause of the First Amendment because it was essentially a Muslim ban, hurt the ability of state businesses and universities to recruit top talent, and damaged the state’s robust tourism industry.” An additional plaintiff was Ismail Elshikh, the imam of the Muslim Association of Hawaii, and “a US citizen of Egyptian descent who has been a resident of Hawaii for over a decade.” His wife is of Syrian descent (and also a resident of Hawaii), and her mother’s application for an immigrant visa was still being processed. Under the new executive order, attorneys said, Elshikh “feared that his mother-in-law, a Syrian national, would ultimately be banned from entering the United States.”
Although Justice Department lawyers “argued that Trump was well within his authority to impose the ban,” which, they claimed, “was necessary for national security,” even though that is completely untrue, Judge Watson “agreed with the state on virtually all the points,” ruling that the state “had preliminarily demonstrated its universities and tourism industry would be hurt, and that harm could be traced to the executive order,” and that Elshikh had alleged “direct, concrete injuries to both himself and his immediate family.”
He also called the government’s national security claims “at the very least, ‘secondary to a religious objective’ of temporarily suspending the entry of Muslims,” and extensively quoted from Trump’s own comments on the campaign trail and public statements made by his advisers as evidence.
In one passage, he stated, “For instance, there is nothing ‘veiled’ about this press release: ‘Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.’ Nor is there anything ‘secret’ about the Executive’s motive specific to the issuance of the Executive Order. Rudolph Giuliani explained on television how the Executive Order came to be. He said: ‘When [Mr. Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’”
As if that was not damning enough, Judge Watson also made reference to a recent Fox News appearance by the alarming white nationalist Stephen Miller, a senior policy adviser to Trump, who said the new ban would have “mostly minor technical differences” from the previous version stopped by the courts, and that US citizens would see “the same basic policy outcome for the country.”
As he put it, “These plainly-worded statements, made in the months leading up to and contemporaneous with the signing of the Executive Order, and, in many cases, made by the Executive himself, betray the Executive Order’s stated secular purpose.”
Opponents of the ban were, of course, delighted with the ruling. Bob Ferguson, the Attorney General of Washington State, who had brought the case against the first ban, which was upheld by Judge James Robart, called it “fantastic news.”
At a rally in Nashville, however, Donald Trump demonstrated, yet again why he is unfit for high office. He called it a “terrible” ruling, and, as the Post described it, “asked a cheering crowd whether the ruling was ‘done by a judge for political reasons,’” a familiar attempt to undermine a ruling made on a legal basis, and with concern for the Constitution, not at all “for political reasons.”
He then said that his administration “would fight the case ‘as far as it needs to go,’ including up to the Supreme Court,” and said he regretted that he “had been persuaded to sign a ‘watered-down version’ of his first travel ban.”
He then said, “Let me tell you something, I think we ought to go back to the first one and go all the way,” adding, “The danger is clear, the law is clear, the need for my executive order is clear,” even though he was wrong on all three counts. The danger is, of course, unclear, as no credible evidence has ever been presented that individuals from any of the six nations banned poses any kind of threat to the US that would warrant such a sweeping ban. On the law, as we have seen, Trump has no idea what he’s talking about, and on the alleged “need” for his executive order, we need only return to the first point, and assert once more that there is no threat to justify this insulting and unconstitutional ban.
While we wait to see what kind of tantrum Trump will demonstrate next, two more rulings on the ban are also pending — in Maryland, and with Judge Robart in Washington State — and it is clear that, yet again, the law, the Constitution and common decency have all come together to thwart some of the most worrying tendencies towards executive overreach so far revealed by this most wretched of presidents.
Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose debut album ‘Love and War’ and EP ‘Fighting Injustice’ are available here to download or on CD via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and the Countdown to Close Guantánamo initiative, launched in January 2016), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).
To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, and The Complete Guantánamo Files, an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.
When I posted this on Facebook, I wrote:
Here’s my latest article, congratulating District Judge Derrick K. Watson, in Hawaii, the latest judicial hero in the struggle to uphold the law and the Constitution against Donald Trump. Judge Watson issued a nationwide restraining order on Trump’s latest immigration ban just hours before it was to take effect. As he recognized, this new ban is as disgraceful as the first, as it is aimed at Muslims in defiance of the establishment clause of the First Amendment, which prohibits discrimination based on religion. He also demonstrated, with copious examples, and withering language, how Trump and his advisors publicly revealed their anti-Muslim bias. In response, Trump threw a hissy fit, claiming, completely mistakenly, that “[t]he danger is clear, the law is clear, [and] the need for my executive order is clear.” Wrong on all counts, Trump. Give up now.
When Trump assigns the DOJ (Dept. of Justice) to appeal this restaining order, I feel sorry for the prosecutor that will be assigned this. He’s already fired 45 prosecutors who disagree with his policies. Obviously he’s trying to fill various govt. agencies with yes people. If you’re told to argue this appeal, how could you possibly justify it legally? It’s not targeting all Muslims. Yes it is. The President’s made it very clear that he doesn’t hate all Muslims. Really? Since when? Japanese internment during WWII was done to protect “national security”. No it wasn’t. And it continues….
Congratulations also to Judge Theodore D. Chuang, in Maryland, who, following Judge Watson’s ruling, echoed it in a case “brought by nonprofit groups that work with refugees and immigrants,” as the New York Times described it. Judge Chuang ruled that “the likely purpose of the executive order was ‘the effectuation of the proposed Muslim ban’ that Mr. Trump pledged to enact as a presidential candidate,” and the Times noted that, although Judge Chuang “declined to block the entire executive order from going into effect,” he “ruled that the most important section — banning travel from half a dozen countries — could not be enforced,” and he “cited Mr. Trump’s public comments to conclude that there were ‘strong indications that the national security purpose is not the primary purpose for the travel ban.'”
Yes, what I hope, Tom, is that he gets the message that he can only go so far in trying to push his ideas when they’re clearly not lawful.
That said, some prosecutors will be found who are prepared to argue things they don’t agree with as a job. It’s not unique to Trump to have people taking positions they shouldn’t. A good example is the Civil Division of the Justice Department where attorneys work on the Guantanamo cases. They have been obstructive, and arguing things that are unjustifiable, since Bush, but many of them continued all the way through Obama and are still in their jobs now!
I posted this quite late last night, as I had to write it after returning from my weekly visit to Battersea Arts Centre with my wife to pick up my son from his beatboxing rehearsal, so I hope it found an audience, although I’m sure anyone watching the sorry saga of the Muslim ban is picking up the story from countless sources. I’m relieved that the mainstream media continues to oppose the persistent lies, distortions and overreach of Trump and his advisers.
For further reading, I recommend “It’s Still a Muslim Ban,” David Cole’s analysis of the Muslim Ban 2.0, from the New York Review of Books: http://www.nybooks.com/daily/2017/03/11/its-still-a-muslim-ban-trump-executive-order/
As Cole states, “the new order still shares the central defect of its predecessor: it is a ‘Muslim ban’ in intent and effect.”
Cole also mentions an important letter to Trump that I’d missed, written by “134 former national security and other high government officials,” who stated that “the revised executive order is damaging to the strategic and national security interests of the United States.” Among the signers were former secretaries of state Madeleine Albright and John Kerry, former CIA deputy directors John McLaughlin and David Cohen, former secretary of homeland security Janet Napolitano, and twenty-six retired generals and admirals.
Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer.
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