Another Legal Hero in the Struggle Against Trump’s Bigotry: Hawaii’s Judge Derrick Watson Issues Nationwide Restraining Order on Immigration Ban

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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).

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