The states' brief pointed out that the claims of urgent national security dangers were undermined by the sheer breadth of the order: "For several months it bans all travelers from the listed countries and all refugees, whether they be infants, schoolchildren or grandparents. And though it cites the attacks of September 11, 2001 as a rationale, it imposes no restrictions on people from the countries whose nationals carried out those attacks. It is at once too narrow and too broad" and cannot withstand any level of scrutiny."
The issues of imperialist foreign policy underlying the legal recriminations were spelled out in an affidavit filed Monday by 10 former top figures in the national security establishment, mostly from Democratic administrations. The document was signed by two former secretaries of state, John Kerry and Madeleine Albright; former defense secretary and CIA director Leon Panetta, former national security adviser Susan Rice, her former deputy Lisa Monaco, former homeland security secretary Janet Napolitano, and four former CIA directors or deputy directors: Michael Hayden, Michael Morrell, John McLaughlin and Avril Haines.
Noting that four of these officials "were current on active intelligence regarding all credible terrorist threat streams directed against the US" as late as January 20, 2017, the statement declared: "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."
Trump's executive order will "disrupt key counterterrorism, foreign policy and national security partnerships that are critical to our obtaining" intelligence necessary to combat terrorist groups like the Islamic State, the statement declared. It went on to warn that individuals in the seven targeted countries who cooperated with US intelligence and military operations would now be endangered.
Newly installed Pentagon chief James Mattis reportedly ordered emergency measures for the protection of Iraqis who collaborated with the US military occupation by acting as translators or providing intelligence. The entry of these Iraqis into the United States under a special visa program was halted by the Trump order.
A separate amicus brief was filed by 97 giant corporations, including a who's who of Silicon Valley: Facebook, Microsoft, Intel, Uber, eBay, Apple, Google, Twitter, Airbnb and Snap. The corporations argued that the order "inflicts significant harm on American business, innovation, and growth," and by disrupting the movement of employees and potential customers "is inflicting substantial harm on US companies."
Legal commentators expect the Ninth Circuit, which is the most liberal of the circuit courts in the US, to endorse Robart's decision in some fashion, followed by an appeal by the Trump administration to the Supreme Court. In the event of a 4-4 split, which was the result of the previous immigration enforcement lawsuit by Republican-controlled states in 2015, the circuit court's decision would stand.
Whatever the long-term result of the legal conflict, however, the temporary restraining order remains in effect this week, with as many as 100,000 people holding visas for entry into the United States from the seven countries targeted by the White House.
Meanwhile, more evidence has emerged of the racist and bigoted character of both the executive order itself and its enforcement by Immigration and Customs Enforcement. A report in Newsweek quoted Los Angeles immigration lawyer Stacy Tolchin, who describes how ICE agents separated Muslims from non-Muslims during detention proceedings at the airports in the period before the court order halting the travel ban was issued.
"They are segregating Muslims from the non-Muslims when they're being detained, holding them in separate rooms," Tolchin told Newsweek. "I think it shows what the real intent of the travel ban is." The magazine reported that several other lawyers "corroborated Tolchin's account, saying those who identified themselves as Christian or Jewish did not seem subject to the same treatment at the border."
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