Connect with us

Latest

Analysis

News

US Federal Courts are the right place to decide the legality of Donald Trump’s ‘travel ban’

The decision of the federal judge in Seattle to order a block on President Trump’s ‘travel ban’ Executive Order kicks off a legal battle, which will resolve the question of its legality.

Alexander Mercouris

Published

on

495 Views

The legal moves and counter-moves in respect of Donald Trump’s ‘travel ban’ Executive Order – which includes the stay imposed on its enforcement by a Federal Judge on Friday – should be welcomed as in the present fraught atmosphere they are probably the only way of resolving the question of its legality.

I have previously discussed why the Executive Order appears to me to break no new ground.  I doubt that it is discriminatory in the way some people say, and I doubt that its intention was discriminatory.  The Executive Order has been administered in the most chaotic way, and this has caused real hardship in many cases.  However that is unfortunately true of most immigration and border law in general.

On the subject of whether the Executive Order is discriminatory, given that its declared purpose is to exclude from the US Jihadi terrorists who are exclusively Sunni Muslims, it seems to me that it would be illogical to exclude from the US the non-Sunni Muslims the Jihadi terrorists are persecuting.  In other words the discrimination looks to me to be on the part of the Jihadis it is targeting rather than in the Executive Order itself.

It is open to opponents of the ‘travel ban’ Executive Order to argue otherwise, though I would say that those who do so by criticising it for being discriminatory in my opinion need to be careful with this argument, since it could be argued that one way to ‘cure’ it would be to extend the ‘travel ban’ to allow for no exceptions from the seven targeted countries, even if that means excluding from the US people who the Jihadi terrorists are persecuting because of their religious beliefs.

Having said this, as I have said previously

I am not familiar with US asylum and entry law so I do not know whether the Executive Order in any way breaches that law. However, I have to say on the face of it that I think that is unlikely.

Many people in the US and elsewhere – citing the US constitution – think otherwise, as is their right.  If so then the correct thing for them to do is to challenge the Executive Order in the US federal courts, as they are now doing, with the Department of Justice – as it also should be doing (see below) – defending the Executive Order by arguing the President’s case.

That is precisely what is now happening, and it is welcome, as it should finally and conclusively resolve the question of the Executive Order’s legality.  In saying this I would say that if – as I expect – the federal courts eventually rule that the Executive Order is legal, then it will still be the right of its opponents to argue that it is wrong, and to campaign against it politically.  However they should take note of the fact that a plurality of Americans apparently backs the President on this question.

There are  a number of myths concerning the ongoing legal battle which I think it would be helpful to dispel.

Firstly, in an article published by the Guardian on Wednesday 1st February 2017 (before the federal judge’s order made on Friday 3rd February 2017) the British commentator Jonathan Freedland – echoing numerous claims I have seen being made by opponents of the Executive Order in the US – said that the Trump administration was behaving lawlessly by ignoring decisions of the courts.

Recall that once the ban came into force, and would-be arrivals started being detained at or deported from US airports, several federal judges rapidly issued court orders demanding a “stay” or halt to the proceedings. In the normal run of things, the instant such a legal ruling was issued, the policy would come to a stop. Because the law is paramount, the court’s word should have been decisive.

But that’s not how it played out last weekend. Even after the judges had spoken, Customs and Border Protection (CBP) staff continued to enforce Trump’s executive order. CBP officers kept lawyers from speaking to detainees, even after a court judgement had said they could. When elected congressmen and women called and asked for information, the CBP put the phone down on them. And, even after the court rulings, the White House insisted that the executive order still stood.

The significance of this is enormous. It means that the executive – in the form of both the White House and the Customs and Border Protection agency – was refusing to bow to the judiciary. That position was perhaps articulated best by the CBP officer who, when asked by two members of Congress who exactly he was reporting to, answered, “Donald J Trump”.

This is precisely the sort of paranoid and overblown argument now typically made about Donald Trump which makes one doubt the bona fides – or the grasp of reality – of his opponents.  If Freedland really believes all this, then all I can say is that it betrays a complete misunderstanding of the legal process.

All the court decisions made prior to Friday did not touch on the legality of the Executive Order.  They ruled on the legality of its enforcement in individual cases, which is an entirely different thing.  By contrast the federal judge’s order on Friday did touch on the legality of the Executive Order, and it is being observed.

The ‘travel ban’ Executive Order may or not not turn out to be legal.  That is a question for the federal courts to decide.  However there are no grounds for saying that the Trump administration is behaving lawlessly, or that it is ignoring or defying the courts, though it is possible that some lower ranking officials, left uncertain about what they should be doing because of the chaos that followed the making of the Order, may have acted in particular cases contrary to the specific orders of the courts.  However it seems that a judge has refused to rule that these officials are in contempt of court, saying there is insufficient evidence to decide this question.  I will here express my opinion, which is that I doubt they are.

Secondly, there continues to be some discussion of the conduct of Sally Yates, with some defending her on the grounds that as acting Attorney General she owed a duty to the constitution – to uphold which she has sworn on oath – and that this somehow overrode her duty to her client, which as the US’s Attorney General is the US government and its chief executive officer, the President.

All lawyers however have an overriding duty to the law.  There are no exception.   No-one moreover is saying that Sally Yates should have defended the Executive Order if she thought it was illegal and unconstitutional.  That would be absurd.  If Sally Yates thought the Executive Order was illegal and unconstitutional then certainly she should not have defended it.  Her duty in that case was to tell the President that his Executive Order was illegal and unconstitutional, and if he rejected her advice – which is his right – and ordered her to defend the Order despite her advice – to resign.

I would add that the same would be true if Sally Yates was unsure about whether the Executive Order was illegal and unconstitutional, but thought that on balance it probably was, and that the government’s case was weak.  She should have advised the President of this, and informed him that in her opinion it was against the national interest for the US government to defend a case it would probably lose, and if the President – as is his right – again rejected her advice and ordered her to defend the Executive Order,then she also should have resigned.

In the event Sally Yates’s letter shows that she decided against defending the Executive Order not because she had decided it was illegal and unconstitutional, and not actually because she thought the government would lose the case, but because she didn’t agree with it.  The point is fully discussed by Jack Goldsmith, who unlike me is a Harvard law professor and former Assistant Attorney General, Office of Legal Counsel, from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

In the event, with Sally Yates gone, the Department of Justice is now doing its job, advising the President and the US government, and making its case in the courts.  That ensures that the question of the legality or otherwise of the Executive Order will be properly and fully argued before the courts, as it needs to be if this contentious issue is to be resolved properly in a way that commands general respect.

Though legal processes can take a long time in the US and elsewhere, this case will I think be an exception, and I suspect it will be resolved one way or another within the next few weeks.

Liked it? Take a second to support The Duran on Patreon!
Advertisement
Click to comment

Leave a Reply

avatar
  Subscribe  
Notify of

Latest

High-ranking Ukrainian official reports on US interference in Ukraine

It is not usually the case that an American media outlet tells the truth about Ukraine, but it appears to have happened here.

Seraphim Hanisch

Published

on

The Hill committed what may well have been a random act of journalism when it reported that Ukrainian Prosecutor General, Yuriy Lutsenko, told Hill.tv’s reporter John Solomon that the American ambassador to that country, Marie Yovanovitch, gave him a “do not prosecute” list at their first meeting.

Normally, all things Russia are covered by the American press as “bad”, and all things Ukraine are covered by the same as “good.” Yet this report reveals quite a bit about the nature of the deeply embedded US interests that are involved in Ukraine, and which also attempt to control and manipulate policy in the former Soviet republic.

The Hill’s piece continues (with our added emphases):

“Unfortunately, from the first meeting with the U.S. ambassador in Kiev, [Yovanovitch] gave me a list of people whom we should not prosecute,” Lutsenko, who took his post in 2016, told Hill.TV last week.

“My response of that is it is inadmissible. Nobody in this country, neither our president nor our parliament nor our ambassador, will stop me from prosecuting whether there is a crime,” he continued.

Indeed, the Prosecutor General appears to be a man of some principles. When this report was brought to the attention of the US State Department, the response was predictable:

The State Department called Lutsenko’s claim of receiving a do not prosecute list, “an outright fabrication.” 

“We have seen reports of the allegations,” a department spokesperson told Hill.TV. “The United States is not currently providing any assistance to the Prosecutor General’s Office (PGO), but did previously attempt to support fundamental justice sector reform, including in the PGO, in the aftermath of the 2014 Revolution of Dignity. When the political will for genuine reform by successive Prosecutors General proved lacking, we exercised our fiduciary responsibility to the American taxpayer and redirected assistance to more productive projects.”

This is an amazing statement in itself. “Our fiduciary responsibility to the American taxpayer”? Are Americans even aware that their country is spending their tax dollars in an effort to manipulate a foreign government in what can probably well be called a low-grade proxy war with the Russian Federation? Again, this appears to be a slip, as most American media do a fair job of maintaining the narrative that Ukraine is completely independent and that its actions regarding the United States and Russia are taken in complete freedom.

Hill.TV has reached out to the U.S. Embassy in Ukraine for comment.

Lutsenko also said that he has not received funds amounting to nearly $4 million that the U.S. Embassy in Ukraine was supposed to allocate to his office, saying that “the situation was actually rather strange” and pointing to the fact that the funds were designated, but “never received.”

“At that time we had a case for the embezzlement of the U.S. government technical assistance worth 4 million U.S. dollars, and in that regard, we had this dialogue,” he said. “At that time, [Yovanovitch] thought that our interviews of Ukrainian citizens, of Ukrainian civil servants, who were frequent visitors of the U.S. Embassy put a shadow on that anti-corruption policy.”

“Actually, we got the letter from the U.S. Embassy, from the ambassador, that the money that we are speaking about [was] under full control of the U.S. Embassy, and that the U.S. Embassy did not require our legal assessment of these facts,” he said. “The situation was actually rather strange because the funds we are talking about were designated for the prosecutor general’s office also and we told [them] we have never seen those, and the U.S. Embassy replied there was no problem.”

“The portion of the funds, namely 4.4 million U.S. dollars were designated and were foreseen for the recipient Prosecutor General’s office. But we have never received it,” he said.

Yovanovitch previously served as the U.S. ambassador to Armenia under former presidents Obama and George W. Bush, as well as ambassador to Kyrgyzstan under Bush. She also served as ambassador to Ukraine under Obama.

Former Rep. Pete Sessions (R-Texas), who was at the time House Rules Committee chairman, voiced concerns about Yovanovitch in a letter to the State Department last year in which he said he had proof the ambassador had spoken of her “disdain” for the Trump administration.

This last sentence may be a way to try to narrow the scope of American interference in Ukraine down to the shenanigans of just a single person with a personal agenda. However, many who have followed the story of Ukraine and its surge in anti-Russian rhetoric, neo-Naziism, ultra-nationalism, and the most recent events surrounding the creation of a pseudo-Orthodox “church” full of Ukrainian nationalists and atheists as a vehicle to import “Western values” into a still extremely traditional and Christian land, know that there are fingerprints of the United States “deep state” embeds all over this situation.

It is somewhat surprising that so much that reveals the problem showed up in just one report. It will be interesting to see if this gets any follow-up in the US press.

Liked it? Take a second to support The Duran on Patreon!
Continue Reading

Latest

Bercow blocks Brexit vote, May turns to EU for lifeline (Video)

The Duran Quick Take: Episode 112.

Alex Christoforou

Published

on

The Duran’s Alex Christoforou and Editor-in-Chief Alexander Mercouris discuss Theresa May’s latest Brexit dilemma, as House of Commons Speaker John Bercow, shocked the world by citing a 1604 precedent that now effectively blocks May’s third go around at trying to pass her treacherous Brexit deal through the parliament.

All power now rests with the Brussels, as to how, if and when the UK will be allowed to leave the European Union.

Remember to Please Subscribe to The Duran’s YouTube Channel.

Follow The Duran Audio Podcast on Soundcloud.

Via Bloomberg


Theresa May claims Brexit is about taking back control. Ten days before the U.K. is due to leave the European Union, it looks like anything but.

House of Commons Speaker John Bercow’s intervention, citing precedent dating back to 1604, to rule out a repeat vote on May’s already defeated departure deal leaves the prime minister exposed ahead of Thursday’s EU summit in Brussels.

Bercow, whose cries of “Orrdurrr! Orrdurrr!’’ to calm rowdy lawmakers have gained him a devoted international following, is now the pivotal figure in the Brexit battle. May’s team privately accuse him of trying to frustrate the U.K.’s exit from the EU, while the speaker’s admirers say he’s standing up for the rights of parliament against the executive.

If just one of the 27 other states declines May’s summit appeal to extend the divorce timetable, then the no-deal cliff edge looms for Britain’s departure on March 29. If they consent, it’s unclear how May can meet Bercow’s test that only a substantially different Brexit agreement merits another vote in parliament, since the EU insists it won’t reopen negotiations.

Caught between Bercow and Brussels, May’s room for maneuver is shrinking. Amid rumblings that their patience with the U.K. is near exhaustion, EU leaders are girding for the worst.

Liked it? Take a second to support The Duran on Patreon!
Continue Reading

Latest

President Putin signs law blocking fake news, but the West makes more

Western media slams President Putin and his fake news law, accusing him of censorship, but an actual look at the law reveals some wisdom.

Seraphim Hanisch

Published

on

The TASS Russian News Agency reported on March 18th that Russian President Vladimir Putin signed off on a new law intended to block distorted or untrue information being reported as news. Promptly after he did so, Western news organizations began their attempt to “spin” this event as some sort of proof of “state censorship” in the oppressive sense of the old Soviet Union. In other words, a law designed to prevent fake news was used to create more fake news.

One of the lead publications is a news site that is itself ostensibly a “fake news” site. The Moscow Times tries to portray itself as a Russian publication that is conducted from within Russian borders. However, this site and paper is really a Western publication, run by a Dutch foundation located in the Netherlands. As such, the paper and the website associated have a distinctly pro-West slant in their reporting. Even Wikipedia noted this with this comment from their entry about the publication:

In the aftermath of the Ukrainian crisis, The Moscow Times was criticized by a number of journalists including Izvestia columnist Israel Shamir, who in December 2014 called it a “militant anti-Putin paper, a digest of the Western press with extreme bias in covering events in Russia”.[3] In October 2014 The Moscow Times made the decision to suspend online comments after an increase in offensive comments. The paper said it disabled comments for two reasons—it was an inconvenience for its readers as well as being a legal liability, because under Russian law websites are liable for all content, including user-generated content like comments.[14]

This bias is still notably present in what is left of the publication, which is now an online-only news source. This is some of what The Moscow Times had to say about the new fake news legislation:

The bills amending existing information laws overwhelmingly passed both chambers of Russian parliament in less than two months. Observers and some lawmakers have criticized the legislation for its vague language and potential to stifle free speech.

The legislation will establish punishments for spreading information that “exhibits blatant disrespect for the society, government, official government symbols, constitution or governmental bodies of Russia.”

Insulting state symbols and the authorities, including Putin, will carry a fine of up to 300,000 rubles and 15 days in jail for repeat offenses.

As is the case with other Russian laws, the fines are calculated based on whether the offender is a citizen, an official or a legal entity.

More than 100 journalists and public figures, including human rights activist Zoya Svetova and popular writer Lyudmila Ulitskaya, signed a petition opposing the laws, which they labeled “direct censorship.”

This piece does give a bit of explanation from Dmitry Peskov, showing that European countries also have strict laws governing fake news distribution. However, the Times made the point of pointing out the idea of “insulting governmental bodies of Russia… including Putin” to bolster their claim that this law amounts to real censorship of the press. It developed its point of view based on a very short article from Reuters which says even less about the legislation and how it works.

However, TASS goes into rather exhaustive detail about this law, and it also gives rather precise wording on the reason for the law’s passage, as well as how it is to be enforced. We include most of this text here, with emphases added:

Russian President Vladimir Putin has signed a law on blocking untrue and distorting information (fake news). The document was posted on the government’s legal information web portal.

The document supplements the list of information, the access to which may be restricted on the demand by Russia’s Prosecutor General or his deputies. In particular, it imposes a ban on “untrue publicly significant information disseminated in the media and in the Internet under the guise of true reports, which creates a threat to the life and (or) the health of citizens, property, a threat of the mass violation of public order and (or) public security, or the threat of impeding or halting the functioning of vital infrastructural facilities, transport or social infrastructure, credit institutions, energy, industrial or communications facilities.”

Pursuant to the document, in case of finding such materials in Internet resources registered in accordance with the Russian law on the mass media as an online media resource, Russia’s Prosecutor General or his deputies will request the media watchdog Roskomnadzor to restrict access to the corresponding websites.

Based on this request, Roskomnadzor will immediately notify the editorial board of the online media resource, which is in violation of the legislation, about the need to remove untrue information and the media resource will be required to delete such materials immediately. If the editorial board fails to take the necessary measures, Roskomnadzor will send communications operators “a demand to take measures to restrict access to the online resource.”

In case of deleting such untrue information, the website owner will notify Roskomnadzor thereof, following which the media watchdog will “hold a check into the authenticity of this notice” and immediately inform the communications operator about the resumption of the access to the information resource.
The conditions for the law are very specific, as are the penalties for breaking it. TASS continued:

Liability for breaching the law

Simultaneously, the Federation Council approved the associated law with amendments to Russia’s Code of Administrative Offences, which stipulates liability in the form of penalties of up to 1.5 million rubles (around $23,000) for the spread of untrue and distorting information.

The Code’s new article, “The Abuse of the Freedom of Mass Information,” stipulates liability for disseminating “deliberately untrue publicly significant information” in the media or in the Internet. The penalty will range from 30,000 rubles ($450) to 100,000 rubles ($1,520) for citizens, from 60,000 rubles ($915) to 200,000 rubles ($3,040) for officials and from 200,000 rubles to 500,000 rubles ($7,620) for corporate entities with the possible confiscation of the subject of the administrative offence.

Another element of offence imposes tighter liability for the cases when the publication of false publicly significant information has resulted in the deaths of people, has caused damage to the health or property, prompted the mass violation of public order and security or has caused disruption to the functioning of transport or social infrastructure facilities, communications, energy and industrial facilities and banks. In such instances, the fines will range from 300,000 rubles to 400,000 rubles ($6,090) for citizens, from 600,000 rubles to 900,000 rubles ($13,720) for officials, and from 1 million rubles to 1.5 million rubles for corporate entities.

While this legislation can be spun (and is) in the West as anti-free speech, one may also consider the damage that has taken place in the American government through a relentless attack of fake news from most US news outlets against President Trump. One of the most notable effects of this barrage has been to further degrade and destroy the US’ relationship with the Russian Federation, because even the Helsinki Summit was attacked so badly that the two leaders have not been able to get a second summit together.

While it is certainly a valued right of the American press to be unfettered by Congress, and while it is also certainly vital to criticize improper practices by government officials, the American news agencies have gone far past that, to deliberately dishonest attacks, based in innuendo and everything possible that was formerly only the province of gossip tabloid publications. The effort has been to defame the President, not to give proper or due criticism to his policies, nor credit. It can be properly stated that the American press has abused its freedom of late.

This level of abuse drew a very unusual comment from the US president, who wondered on Twitter about the possibility of creating a state-run media center in the US to counter fake news:

Politically correct for US audiences? No. But an astute point?

Definitely.

Freedom in anything also presumes that those with that freedom respect it, and further, that they respect and apply the principle that slandering people and institutions for one’s own personal, business or political gain is wrong. Implied in the US Constitution’s protection of the press is the notion that the press itself, as the rest of the country, is accountable to a much Higher Authority than the State. But when that Authority is rejected, as so much present evidence suggests, then freedom becomes the freedom to misbehave and to agitate. It appears largely within this context that the Russian law exists, based on the text given.

Further, by hitting dishonest media outlets in their pocketbook, rather than prison sentences, the law appears to be very smart in its message: “Do not lie. If you do, you will suffer where it counts most.”

Considering that news media’s purpose is to make money, this may actually be a very smart piece of legislation.

Liked it? Take a second to support The Duran on Patreon!
Continue Reading

JOIN OUR YOUTUBE CHANNEL

Your donations make all the difference. Together we can expose fake news lies and deliver truth.

Amount to donate in USD$:

5 100

Validating payment information...
Waiting for PayPal...
Validating payment information...
Waiting for PayPal...
Advertisement

Advertisement

Quick Donate

The Duran
EURO
DONATE
Donate a quick 10 spot!
Advertisement
Advertisement

Advertisement

The Duran Newsletter

Trending