Heroes of the Resistance: Judge James Robart, Who Has Suspended Donald Trump’s Unacceptable Immigration Ban, and Washington State AG Bob Ferguson

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A week after Donald Trump issued his disgraceful executive order banning visitors from seven mainly Muslim countries (Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen), District Judge James Robart, a senior judge in the United States District Court for the Western District of Washington, appointed by George W. Bush, “granted a temporary restraining order … after hearing arguments from Washington State and Minnesota that the president’s order had unlawfully discriminated against Muslims and caused unreasonable harm,” as the Guardian described it.

In a second article, the Guardian explained that Judge Robart had “declared the entire travel ban unconstitutional,” noting that, although other states are also suing the government, Washington State’s Attorney General Bob Ferguson had “argued the widest case: that the Trump order violated the guarantee of equal protection and the first amendment’s establishment clause, infringed the constitutional right to due process and contravened the federal Immigration and Nationality Act.”

Outside the courtroom, Ferguson said, “We are a nation of laws. Not even the president can violate the constitution. No one is above the law, not even the president. This decision shuts down the executive order immediately — shuts it down. That relief is immediate, happens right now. That’s the bottom line.”

The New York Times reported that Ferguson said his goal was “invalidating the president’s unlawful action nationwide.” The Washington State complaint stated that the ban “is separating Washington families, harming thousands of Washington residents, damaging Washington’s economy, hurting Washington-based companies, and undermining Washington’s sovereign interest in remaining a welcoming place for immigrants and refugees.”

The Times also reported that Judge Robart had “declared in his ruling that ‘there’s no support’ for the administration’s argument that ‘we have to protect the US from individuals’ from the affected countries.”

This is at the heart of the resistance to Trump’s executive order, and it is to be hoped that it is a battle that Trump can’t win, because, to be blunt, there is no emergency that would justify his draconian blanket ban on so many people.

The Guardian spoke to Marci Hamilton, a constitutional lawyer and scholar of religion at the University of Pennsylvania, who specifically took down Trump’s arguments. “A president can override the constitution with emergency powers if there is, in fact, an emergency,” she said. “But that means a lot more than the potential that a few people might arrive over here from certain countries.”

She added, “The 11 September 2001 terrorist attack was an emergency – the president then unilaterally shut down airports and air travel and people couldn’t get into the US for a while.” However, Trump, she pointed out, “hasn’t produced evidence about terrorists from these countries trying to enter America. The CIA tracks terrorists all the time, there’s a system for that.”

Further confirmation that there is no emergency to justify Trump’s actions, which are, instead, a heavy-handed demonstration of a sweeping racist policy, has been the subject of numerous media reports. For example, as the Atlantic reported last week, in an article entitled, ‘Where America’s Terrorists Actually Come From’:

[A]fter sifting through databases, media reports, court documents, and other sources, Alex Nowrasteh, an immigration expert at the libertarian Cato Institute, has arrived at a striking finding: Nationals of the seven countries singled out by Trump have killed zero people in terrorist attacks on U.S. soil between 1975 and 2015.

Zero.

Six Iranians, six Sudanese, two Somalis, two Iraqis, and one Yemeni have been convicted of attempting or executing terrorist attacks on U.S. soil during that time period, according to Nowrasteh’s research. (Nowrasteh focused on plots against the U.S. homeland, which presumably Trump cares most about, rather than other terrorism-related offenses, like supporting a foreign terrorist group or trying to join a jihadist organization overseas.) Zero Libyans and zero Syrians have been convicted of doing the same. “Foreign-born terrorism is a hazard,” Nowrasteh argues, “but it is manageable given the huge economic benefits of immigration and the small costs of terrorism.”

As for refugees, Nowrasteh writes, Trump’s action “is a response to a phantom menace.” Over the last four decades, 20 out of 3.25 million refugees welcomed to the United States have been convicted of attempting or committing terrorism on U.S. soil, and only three Americans have been killed in attacks committed by refugees—all by Cuban refugees in the 1970s.

Zero Americans have been killed by Syrian refugees in a terrorist attack in the United States.

The New York Times also noted that Judge Robart’s order “barred the administration from enforcing its limits on accepting refugees,” a ruling that applies across the country. Trump had imposed a ban on all visitors from the seven proscribed countries for 90 days, and on refugees for 120 days, with Syrian refugees banned permanently, despite the US’s obligations towards refugees. On Saturday, as a result, the State Department said that refugees, including Syrians, “could begin arriving as early as Monday.”

The Guardian noted that the State Department “said it had reversed visa revocations, meaning that tens of thousands of people whose visas were not physically canceled after the issuing of the executive order last week may now travel freely.” On Friday, a Justice Department official said that 100,000 visas had been revoked under the ban. State Department figures put the number at 60,000, but even this lower figure is an extraordinary number of people to be affected by a ban that has no urgent basis.

Nevertheless, in responding to Judge Robart’s order, Donald Trump was enraged. In one tweet, he wrote: “The opinion of this so-called judge, which essentially takes law enforcement away from our country, is ridiculous and will be overturned!”

In another, he asked, “What is our country coming to when a judge can halt a Homeland Security travel ban and anyone, even with bad intentions, can come into U.S.?”

An hour later, he tweeted, “Because the ban was lifted by a judge, many very bad and dangerous people may be pouring into our country. A terrible decision.”

In response, Sen. Chuck Schumer, the leader of Democrats in the Senate, “castigated the president for his insults toward a federal judge,” as the Guardian described it. Trump’s tweets, Schumer said, show “a disdain for an independent judiciary that doesn’t always bend to his wishes and a continued lack of respect for the constitution”.

Sen. Patrick Leahy, the ranking Democrat on the Senate Judiciary Committee, added that Trump “seems intent on precipitating a constitutional crisis.” He added, “The president’s hostility toward the rule of law is not just embarrassing, it’s dangerous,” and called the travel ban an “arbitrary and shameful” attempt to discriminate against Muslims.

Nancy Pelosi, the Democratic leader in the House of Representatives, said, “No matter how many times the president attacks this judge … it won’t change the fact that this ban is unconstitutional, immoral and dangerous.”

Late on Saturday night, judges dealt another blow to Trump, as the Ninth Circuit Court of Appeals in San Francisco refused to endorse a request for an immediate reinstatement of the immigration ban.

The Guardian noted that the Justice Department’s filing “warned that Robart’s ruling posed an immediate harm to the public, thwarted enforcement of an executive order and ‘second-guesses the president’s national security judgment about the quantum of risk posed by the admission of certain classes of (non-citizens) and the best means of minimizing that risk,’” an effort to revisit the fictional “national emergency” scenario that is at the heart of the ban, and one that the three judges in the Ninth Circuit evidently refused to accept.

As the Guardian also noted, the ban’s implementation “has also placed under close scrutiny the role of the authors of the travel ban order – Trump’s strategist Steve Bannon and aide Stephen Miller – as the administration tries to assert its authority on the Washington bureaucracy.”

Both men — both dangerous racists — are worth watching very closely, and to that end the Atlantic has a good story this weekend, ‘How Stephen Miller’s Rise Explains the Trump White House.’ For Bannon, see this detailed article in Time, which features Bannon on its cover, with the headline, ‘The Great Manipulator.’

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).

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