As part of opposition to Emergency Motion for a Stay in 9th Circuit
Late last night the State of Washington filed its opposition to the government’s Emergency Motion for a Stay pending appeal from the District Court Temporary Restraining Order halting Trump’s Immigration Executive Order.
The government’s motion was extremely strong, correctly pegging the court order as an improper usurpation by the District Court Judge of national security decisions reserved to the President. The 9th Circuit denied the stay request Saturday night until the opponents had a chance to submit papers, setting a briefing schedule to have the motion fully submitted by 3 p.m. Pacific time today.
I am not going to have time to fully analyze the legal papers filed in opposition, as I have to hit the road for a long drive shortly.
What’s most interesting is the Albright Declaration, which includes signatures of Madeleine K. Albright, Avril D. Haines, Michael V. Hayden, John F. Kerry, John E. McLaughlin, Lisa O. Monaco, Michael J. Morell, Janet A. Napolitano, Leon E. Panetta, and Susan E. Rice.
The bottom line of the Albright Declaration is:
3. We all agree that the United States faces real threats from terrorist networks and must take all prudent and effective steps to combat them, including the appropriate vetting of travelers to the United States. 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. We view the Order as one that ultimately undermines the national security of the United States, rather than making us safer. In our professional opinion, this Order cannot be justified on national security or foreign policy grounds. It does not perform its declared task of “protecting the nation from foreign terrorist entry into the United States.” …
4. There is no national security purpose for a total bar on entry for aliens from the seven named countries….
7. In our professional opinion, the Order was ill-conceived, poorly implemented and ill-explained. The “considered judgment” of the President in the prior cases where courts have deferred was based upon administrative records showing that the President’s decision rested on cleared views from expert agencies with broad experience on the matters presented to him. Here, there is little evidence that the Order underwent a thorough interagency legal and policy processes designed to address current terrorist threats….
10. For all of the foregoing reasons, in our professional opinion, the January 27 Executive Order does not further – but instead harms – sound U.S. national security and foreign policy.
This is a very pernicious attempt to divest the Trump administration of its lawful authority. None of these people currently is in office and can claim current knowledge of threat assessments or internal deliberations. They rely on news reports, which as we know, have been notoriously unrealiable as to the Trump administration.
John Kerry in particular is a political opponent, and has a personal interest since it is his policies which are being called into question by the Executive Order.
The Albright Declaration should not, legally, be relevant. These are FORMER officials. They are not in a decision-making position now. Their opinions, legally, are nothing more than opinions. The law clearly and unequivocally reserves national security decisions related to immigration to the President. Former officials have no legal standing to substitute their opinions for those of the current President. This is just another attempt to divest the President of his authority, something done by the District Court Judge as well.
This presents the government with a dilemma. It has until 3 p.m. Pacific time to submit a Reply. Does the government treat the Declaration as what it is — a legal nullity — which risks a one-sided record, or does it submit counter-affidavits?
We’ll continue to monitor this. I would expect a decision from the 9th Circuit sometime tonight Pacific time.
[Featured Image: John Kerry with Iranian Foreign Minister Mohammad Javad Zarif Khonsari during Iran Nuke Deal negotiations]
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