Civil and Human Rights

Trump travel ban ‘cannot be justified’, Kerry and Rice tell court

By Barney Jopson and John Murray Brown

Senior Obama administration officials including former secretary of state John Kerry have joined the battle between President Donald Trump and the US courts in a legal filing arguing the White House’s travel ban would not make the US safer.

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The ten former diplomats and intelligence officials waded into the dispute on Monday as the Trump administration raced to meet an afternoon deadline to explain its call for a court-ordered suspension of the ban to be overturned.

Mr Trump did not comment directly on the court tussle in a speech on Monday, but said: “We need strong programmes so that people who love and want to love our country and will end up loving our country are allowed in, not people that want to destroy us and destroy our country.”

The ructions over the immigration clampdown have sparked warnings of an impending constitutional crisis after Mr Trump attacked the judge who halted the ban. The furore over the curbs has dominated the first weeks of his presidency.

The dispute is pitting Mr Trump’s claim he is protecting Americans against charges that his immigration order amounts to a discriminatory ban on Muslims

The former Obama officials, among them ex-national security adviser Susan Rice, said in their filing that they had “held the highest security clearances” and were “unaware of any specific threat” that would justify the ban on security or foreign policy grounds.

“To the contrary, the order disrupts thousands of lives, including those of refugees and visa holders all previously vetted by standing procedures that the administration has not shown to be inadequate.”

Their argument appears to undercut Mr Trump’s assertion that the suspension of the ban on refugees and immigrants from seven majority-Muslim countries has left the US in immediate danger.

Barack Obama has already spoken out against Mr Trump’s move, discarding the convention of ex-presidents not commenting on their successors within days of leaving office.

Mr Trump tweeted on Sunday: “Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!”

In a visit to the US military’s Central Command in Tampa, Florida, on Monday, the president said: “Isis is on a campaign of genocide, committing atrocities across the world. Radical Islamic terrorists are determined to strike our homeland as they did on 9/11, as they did from Boston to Orlando to San Bernardino.”

David Gans, a director at the Constitutional Accountability Center, said the ban was out of line with America’s constitutional traditions. “This is shaping up to be a defining constitutional moment,” he said. “This is becoming a huge potential landmark case that will define the limits on the power of the president.”

The technology sector has come out against Mr Trump’s ban with leading companies including Apple, Google and Uber filing a separate brief that argued the travel ban would harm companies by making it more difficult to recruit employees.

The halt on the ban was imposed by a federal judge in Washington state on Friday and the White House quickly appealed the ruling to the Ninth Circuit Court of Appeals, which gave the Trump administration until Monday afternoon to make its full case.

Once the appeals court has ruled on the injunction, the losing side could quickly appeal its decision to the US Supreme Court. But for now it is less likely that the entire case would end up at the US’s highest court, said Mr Gans.

The two US states that won the injunction, Washington and Minnesota, said on Monday there would be “further chaos” if the ban were reimposed, arguing the White House could show no reason why the lower court judge’s ruling had to be reversed.

Justice department lawyers have urged the appeals court to remove the injunction against the ban, arguing that the ruling was putting national security at risk.

Mike Pence, US vice-president, said on Sunday: “We don’t appoint judges to our district courts to conduct foreign policy or to make decisions about the national security.”

The states noted that the injunction simply returned US migration policy to the previous status quo, making an emergency reversal unnecessary.

The signatories to the letter from Obama administration officials included two who were receiving active intelligence on all terrorist threats a week before the order was issued: Lisa Monaco, former homeland security adviser to Mr Obama, and Avril Haines, who was Ms Rice’s deputy until last month.

It was also signed by Madeleine Albright, secretary of state under Bill Clinton; Leon Panetta, Mr Obama’s defence secretary; and former CIA director Michael Hayden.

“There is no national security purpose for a total bar on entry for aliens from the seven named countries,” the 10 former officials attest. “Since September 11 2001, not a single terrorist attack in the United States has been perpetrated by aliens from the countries named in the order.”

In papers filed with the Ninth Circuit Court of Appeals, lawyers for Washington and Minnesota said if the ban is restored it would “reinstitute those harms, separating families, stranding our university students and faculty, and barring travel”.

The president’s executive order applies to Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen — countries that the administration says pose terrorism concerns.

But the measures, which were widely condemned by foreign governments including Britain, caused confusion for many foreigners trying to reach the US, prompting protests across the country and leading to multiple court challenges.

The president ratcheted up the rhetoric at the weekend, openly criticising the judge involved. In comments on Twitter he called the lower-court judge, James Robart, a “so-called judge” and described his ruling as “ridiculous”.

On Sunday, Mr Trump also tweeted that he had instructed homeland security to check people coming into the country but that “the courts are making the job very difficult!”.

The attacks on Judge Robart, who was appointed by President George W Bush, have caused dismay in Congress — and not just among Democrats. “We don’t have so-called judges. We don’t have so-called senators. We don’t have so-called presidents. We have people from three different branches of government who take an oath to uphold and defend the constitution,” said Ben Sasse, a Republican senator for Nebraska.

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