The Order That Launched A Thousand Suits

To right what is wrong is to stand in opposition against what is wrong, nothing less will suffice in the eyes of our descendants. To plead indifference as tyranny reigns is nothing more than complicit acceptance of such tyranny. We see it in the Philippines, we see it in Turkey, we see it in Russia; and now we see the beginnings of it in the United States of America. A country which holds itself aloft as the land of the free, as a global leader in so many ways, now must be treated as in the same category as these other nations.

We have witnessed several weeks of Trump’s America, and each day is just as worrying as the last. Thus far, the climax of this administration's unhinged attitude has come around the executive order on immigration, effectively instituting a blanket ban on 134 million people, preventing them from entering the United States. This order would come to affect many visa-holders, permanent residents, and dual-nationals, none of whom would regularly be seen as reasonably within the scope of even a sweeping immigration policy.

Throughout the weekend after the order was signed we saw protests and rallies form at airports across the States. We saw lawyers mobilising to provide aid to the hundreds of people (there are still no exact figures) detained upon arriving in the country. We saw strikes against the Executive Order coming thick and fast as the days went on, first from a federal court in Brooklyn, and later from Virginia, Washington, and Massachusetts.

We saw every side of America, much of it was confusing, and it all happened very quickly. In six parts, this is the White House Executive Order entitled “Protecting the Nation From Foreign Terrorist Entry Into the United States.



I. The First Weekend

It became evident during the first day that advice had been received by airport officials to block entry by anyone holding nationality of: Iraq, Iran, Syria, Sudan, Somalia, Yemen, or Libya. Any person carrying the nationality of one of those countries was stopped from entering, and eventually they were stopped at airports around the world - not even being allowed onto their flights. Those prevented from entering included a Clemson Professor, a researcher going to Harvard (Seyed Soheil Saeedi Saravi, a young Iranian scientist), and many men and women who have been resident for years in the US. Those with visa authorisation were also held without reason on arrival, and were in many cases kept from legal representation.

There was serious miscommunication or a rift forming between various branches of government, officials on the ground, and the court system. The blind leading the blind, as the Executive Branch contradicted itself, may have directed immigration officials to ignore court orders, about-faced on that order, followed by the Department of Homeland Security echoing the White House, and by Sunday evening nothing was any clearer - and as such the situation was generally much scarier.

We saw protests organised on less than a day’s notice, as airports around the country played host to hundreds, and thousands, of protesters. In New York, public transport to the airport was shut down to prevent overcrowding around the terminal, where thousands were gathered by mid afternoon. The mobilisation sparked by the Women’s March on the day after Trump’s inauguration had been a calling card, and many of the same people came out a week later. 

According to lawyers inside JFK Airport, multiple detainees were pressured to sign a form typically called a "withdrawal of application for admission." Despite having a legal right to stay in the country, scared and nervous detainees, the lawyers said, were asked to revoke their status so they can be sent back to their countries of origin.

After a day of conflicting reports, and confusion surrounding the order’s implementation, the first court ruling against the order was delivered late on the 28th, from a district court in Brooklyn, with the courthouse surrounded by hundreds of protesters, who had made their way from the airport to voice support for the plaintiffs.

I don’t wish to recount the story of every person detained or sent back, but I do have a few stories to recommend:


II. The Law

There are multiple questions to be answered about whether this order is even legal, before considering the humanitarian affront it poses. As a starting point, the White House did not consult the Executive Branch's own legal counsel as to the appropriate execution of the order, and when advice was received from the Department of Homeland Security (DHS), the advice was promptly ignored. In fact, per NBC News, the document was not reviewed by DHS, the Justice Department, the State Department, or the Department of Defense. And National Security Council lawyers were prevented from evaluating it prior to the signing. This all goes some way to explain what happened to the people on the ground over the next 48 hours or so, as confusion reigned.

In plain terms, since 1965, United States immigration law (8 USC 1152) has stated that “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” This means that beyond a shadow of doubt, the order is plainly illegal, and we needn’t go further. The defence which is cited most frequently is the law from which the order purports to draw power:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. ( 8 USC 1182(f) )

Without 8 USC 1152, 8 USC 1182(f) allows this order to proceed. However, 1182 was enacted first (in 1952), some 13 years prior to 1152. This would mean in any sensible reading of the legality, 1152 was intended to place specific restrictions upon the earlier law. In practice this means there are still classes of people whom the president has the authority to exclude, and individuals can also be excluded. The second law is there to temper prejudice against large groups of people; to restrain the first.

A more detailed breakdown of the legalities (which helped me write this) was written by Ian Samuel.


III. Recent Action

At the start of the week following the order’s implementation, multiple other cases were filed, with broader claims challenging the legality of the law as a whole, as opposed to those mentioned earlier, the “Airport Cases”, which dealt with individuals or specific provisions. This new round of lawsuits could take weeks or months to resolve, by which time many of the temporary travel restrictions will have been lifted.

The case which has picked up momentum was one filed by Washington and Minnesota (and later supported by (Pennsylvania, Massachusetts, New York, California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, New Hampshire, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Virginia, and the District of Columbia), against the federal government, claiming damages caused to the state, its residents, and companies. By far the broadest, and arguably strongest, case against the law as a whole, this case was the one to institute a clear nationwide halt on the executive order while the case is being reviewed. Up to this point, the government has simply failed to show that a temporary suspension of the order will cause them significant harm, in a ruling handed down from the court of appeals.

The administration has since suggested at a plan to overwrite the order with a new Executive Order, although no new order has been forthcoming. For now the original order is on hold, to be reviewed in a Washington District Court on the merits.


IV. Justification

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The primary refrain in opposing this action, even gaining primacy over the humanitarian aspects, is that this order isn’t necessary. The justification presented comes on two fronts, the first being that people who are nationals of the seven countries listed haven’t killed anyone as part of a terrorist attack on US soil since 9/11. This comes as the truth of the matter, and to contend that these countries pose a significant risk to the US in this manner would be deluded. In actual fact, only 24 people have been killed in terrorist attacks committed by foreign-born terrorists since 9/11, and three of the six terrorists convicted were, at the time of their crimes, US citizens. To contend that there is a significant terrorist threat to America from abroad is simply unsupported by all reasonable evidence. 

Throwing the world into a tailspin as this order did, without reasonable cause, is the definition of tyranny.

These nations harbour terrorists, but terrorists are not admitted to the United States as a matter of course, and the process for gaining entry as a citizen of a listed country is not easy. When the White House refers to the list of countries coming from the previous administration, this is exactly what they mean. This list has been identified, and these people already receive a high level of scrutiny. Syrian refugees have the most extreme policy of the listed countries, and that’s a twenty step process including four separate interviews, so when “extreme vetting” is mentioned, we should be aware of the current standard, and question the ways in which the administration considers this process insufficient.

You do not get on a plane, you do not get to the United States, without a reasonable expectation of being allowed in. And if you have permission, you are already subject to many background checks.

In defence of the order, it’s reasonable to conduct a full review of the policy surrounding admittance of people from these countries. But this does not necessitate freezing the current system at the stroke of a pen. Reviews can be carried out on a routine basis, and given all the care in the world. Throwing the world into a tailspin as this order did, without reasonable cause, is the definition of tyranny.


V. Morality

The order was in clear violation of the Geneva Conventions on Refugees, which states that a nation must not discriminate against refugees (Article 3), or take exceptional measures against a refugee solely on account of his or her nationality (Article 8).
To refer to the Executive Order’s text; “The Secretary of State shall suspend the U.S. Refugee Admissions Program for 120 days” and “the entry of nationals of Syria as refugees is detrimental to the interests of the United States and thus [I] suspend any such entry until I have determined that ... admission of Syrian refugees is consistent with the national interest.” The first is a clear violation of Article 3, and the second is a clear violation of Article 8. Short term restrictions have often been implemented, but in the case of Syrian refugees this ban is indefinitely extended until the President deigns they be admitted again, and that is a problem.

The White House has on multiple occasions since the implementation of the order stated that “to assume that because of someone's age or gender they don't pose a threat is misguided and wrong". This was used again in a press briefing, wherein Sean Spicer invoked the defence after being asked specifically about a 5-year-old child held in detention. There is a defence for the administration to invoke, but that defence comes with admitting they were wrong about the way in which the order was implemented, and thus far they have shown themselves to be consistently incapable of such humility. In this way, even if there was a solid argument that on its face, the order was morally defensible, there is no way to defend the implementation of the order.

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An under-reported section of the order reduces the current US Refugee program to half-capacity. The United States is already lagging behind most of the developed world in accepting refugees, and based on the new limit, they will fall even further down the list. This puts the United States at the tail end of numerous countries that are currently in a worse economic state than the US, including Italy and Ireland.


VI. As We Proceed

As Senator Rob Portman said “We ought to take a deep breath and come up with something that makes sense.”

There are portions of the order which could be implemented without serious consequence, and policies which would be entirely reasonable. To freeze the acceptance of new visa/refugee applications from the seven listed countries would be a simple order, and if in place for only 90 days this could be seen as a necessary precaution against the influx of people from countries that currently have little or no functioning government. This could easily be painted as a noble order ensuring entrants are processed correctly. The implemented order was not that one, it was a ham-fisted attempt at such an order, and was executed almost as poorly as it conceivably could have been. There is no doubt about this administration's position on the movement of foreign nationals into the United States, but this order was a poor way to seek the end they were looking to achieve.

Due to the administration’s steady stance in favour of the executive order, we can presume this sort of crisis isn’t going to be a rarity through the next four years. However, we’ve seen in the response to this action is a robust system which will fight the presidency, a populace unafraid to voice their objections, and world willing to shine a spotlight on the failings of this White House.


 

This is the first in a series of longer form essays that will be published here through the rest of 2017. In time we hope to cover many stories around the world, and give a deeper look at that which we cannot cover in the Daily emails.

As always, thank you for reading.

- Gregor Scott