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The Ninth Circuit and President Trump's Lies |
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Wednesday, 08 February 2017 14:53 |
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Davidson writes: "If there was a single question at the center of Tuesday afternoon's hearings on President Trump's executive order keeping people from seven Muslim-majority nations and all refugees out of the country, it was this: Do the courts, or the American people, have any recourse when the President lies?"
Donald Trump. (photo: Bill Clark/RollCall)
The Ninth Circuit and President Trump's Lies
By Amy Davidson, The New Yorker
08 February 17
 f there was a single question at the center of Tuesday afternoon’s hearings on President Trump’s executive order keeping people from seven Muslim-majority nations and all refugees out of the country, it was this: Do the courts, or the American people, have any recourse when the President lies? Judge James Robart, of the U.S. District Court, in Seattle, had granted the states of Washington and Minnesota a temporary restraining order that put a hold on Trump’s ban, pending further hearings in the next two weeks. The Justice Department had gone to the Ninth Circuit Court of Appeals to ask for an emergency stay of that order, meaning that it could continue to keep people out and revoke tens of thousands of visas before any court had a say—and even then, the Trump Administration argued, the courts were not allowed to say much. The three judges on the appeals court—Michelle Friedland, Richard Clifton, and William Canby—wanted to know what, exactly, the emergency was.
August Flentje, a special counsel to the Assistant Attorney General, who was arguing the case for the Trump Administration, said, in effect, that the emergency was that the restraining order got in the way of the President’s power to say that there was an emergency—to announce that the country was in danger. Putting a hold on the ban “overrides the President’s national-security judgment about the level of risk,” he said. It was the President’s job to make that determination, not any court’s. And the court also needed to put aside any talk about this being a Muslim ban, because that was not, technically, what the language of the order said. The judges had to believe the President when he said it was all a matter of the country being in immediate peril, and not about his views of any religion or about the demographic future of America. And they certainly shouldn’t pay attention to any reports that the President had, indeed, cited those very reasons for instituting a ban—Flentje dismissed those as “some newspaper articles.” The judges should just look at the language of the order and believe.
From the beginning of the hearing, which took place by conference call at 3 P.M. Pacific Time, with half an hour allotted to each argument, the judges—who said that they would move quickly to make a decision—pushed Flentje on his claims. “Have you offered any evidence to support this need you’re describing for the executive order, or are you really arguing that we can’t even ask about whether there’s evidence because this decision is non-reviewable?” Judge Friedland asked, a few minutes in.
Flentje said that “numerous foreign individuals” had committed crimes since September 11, 2001, and that the President had determined that there were “deteriorating conditions in certain countries.” When he was asked if the government had pointed to any evidence connecting those particular countries to terrorism, he rejected the idea that it had to. “These proceedings have been moving very fast,” Flentje said. He noted that President Barack Obama had once cited these countries in making changes to the visa-waiver program. (Steve Coll has written about why this is a false analogy.) Why shouldn’t President Trump get to do even more?
But there were immigration processes in place, Judge Clifton said. Where was the evidence “that there’s a real risk, or that circumstances have changed?”
“Well, the President determined that there was a real risk,” Flentje said. It was, he added, “understandable” that he had done so, because “the President understands” these matters.
Friedland pressed him again: Was he saying that the President’s determination was “unreviewable”?
“Yes,” Flentje finally said, within “obvious” constitutional restraints. Any judicial review was “limited” and confined to the “four corners of the document”—that is, the court was allowed to make sure that the order was “facially” legitimate, meaning correct in form and citing real laws and deploying the right legal jargon in the right places, a test he said that the executive order “easily” passed. And that was all. They might, in some cases, hear out American citizens who were directly affected, but even there the review was extremely limited.
“We’re not acknowledging any review on the facts of the case,” Flentje said.
Immigration law does give latitude to the President when the country is in danger. But what happens when you have a President who the courts, and any objective person, know tells lies? How should the assertions of danger then be regarded in light of other laws saying, for example, that religion should not be a reason for excluding people? For that matter, how should they be regarded in light of not only the Constitution’s Establishment Clause, which precludes religious tests, but any number of other passages in that document?
As it happens, this question has come up before in our jurisprudence, because Donald Trump is not the first politician to lie. Our courts have dealt with the prospect of dissembling and misstated motives, particularly in the area of racial discrimination. (A recent book by David Rudenstine looks at some of this history.) Judges seem to believe that Presidents will lie about many things, but that they might have some shame when it comes to the nation’s safety, particularly as they have access to classified information that the public does not. Friedland reminded Flentje of the court’s role.
“Haven’t there been allegations here of bad faith?” she asked Flentje. “And doesn’t Mandel and Din, the concurrence in Din, envision that that is something that we would need to look at?” She was referring to two immigration cases that were heard by the Supreme Court, in 1972 and 2015, respectively. The government had seized on the cases’ affirmation that the courts ought to take its decisions on visa denials at face value. But, as Washington and Minnesota had noted in their filings, “Justice Kennedy’s controlling opinion in Din held that courts should look behind the stated motives for exclusion even as to a nonresident alien if the plaintiff ‘plausibly alleged with sufficient particularity’ ‘an affirmative showing of bad faith.’ “
Flentje had no real answer at that point, trying to shift the discussion to the question of “standing,” the legal doctrine that a case can’t just be brought into court by anyone who walks in off the street: a plaintiff has to show harm, and the sort of harm that the law recognizes and can fix. He hoped that, even if the judges ruled against him on most points (and he was getting the sense that they might), they would drastically narrow the restraining order. But under questioning from the judges on why Washington wouldn’t have standing—on the grounds that, to name one reason cited, the University of Washington, a state agency, had seen its students and scholars stranded and effectively banished—Flentje just floundered.
“Could the President simply say in the order, we’re not going to let any Muslims in?” Judge Canby asked, at that point.
Flentje tried to answer by saying, repeatedly, that that wasn’t what this executive order said. Pressed, he acknowledged that the right plaintiff might have standing to at least challenge it, but that “this is a far cry from that situation.”
When the ban’s opponents got their turn, Noah Purcell, Washington State’s solicitor general, argued that this was indeed that sort of situation, and the states were as proper plaintiffs as anyone to bring the case. “It has always been the judicial branch’s role” to serve as a check on abuses, he began, but the President had asked them “to abdicate that role here, to reinstate the executive order without meaningful judicial review, and to throw this country back into chaos.” The chaos was the disorder and uncertainty occasioned by Trump’s action. The appeals court should let the district court do its work—as it “absolutely” would. To get its stay, the government had to show irreparable harm, and “it was the executive order itself that caused irreparable harm” to families in his state and to its many interests. If there was an emergency, in other words, it was entirely of the President’s creation, if not a product of his imagination.
There had, Purcell said, been about five contradictory statements from the Trump Administration on basic questions, such as the order’s application to green-card holders. As a result, the question of how it affected long-time legal permanent residents of his state and others was not moot. Nor was the effect of an Establishment Clause violation on every citizen, or other statutory concerns. “The court can review this order; the court should review this order,” Purcell said. (Whichever side prevails, this case is almost certainly headed for the Supreme Court, which is short a Justice at the moment.)
As for the question of bad faith, Purcell noted that there was already “rather shocking evidence of intent to discriminate against Muslims.” Trump’s first articulation of the order, in a campaign statement in December, 2015, and at subsequent rallies, posited it as nothing more than a Muslim ban. And he and his aides had made multiple statements making their mendacity and their discriminatory “animus” clear. “We’ve presented an enormous amount of evidence” on the intent of the order, Purcell said, especially given that the discussion was just about a temporary restraining order, and that there hadn’t been any real substantive legal proceedings yet. Indeed, he said, “It’s remarkable to have this much evidence of intent without any discovery.” If the judges, or any Americans, look for the lies—if they acknowledge that they have a right to recognize what is the truth and what is not—they will find them, all around. And in this White House, lies resonate.
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How Dare Trump Use My Daughter's Death to Further His Brutal Agenda |
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Wednesday, 08 February 2017 14:51 |
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Ayliffe writes: "If I can find the strength to do this, surely some White House minion with a list to compile could take the trouble to get the facts right: Mia and Tom's deaths were not committed out of some misguided interpretation of the Qur'an."
Mia Ayliffe-Chung. (photo: Guardian UK)
ALSO SEE: Donald Trump's Terror List Claims Slammed
by Families of Mia Ayliffe-Chung, Curtis Cheng
How Dare Trump Use My Daughter's Death to Further His Brutal Agenda
By Rosie Ayliffe, Guardian UK
08 February 17
Mia’s killing in a hostel in Australia had nothing to do with terrorism. Instead, it shows that when human rights are disregarded, tragedies occur
was not shocked by Donald Trump’s inclusion of my daughter Mia Ayliffe-Chung and her friend Tom Jackson’s deaths in his list of under-reported terror attacks. After all, attempts have already been made by the rightwing Australian politician Pauline Hanson and others to use their deaths as a means of preventing Muslim immigrants from entering Australia. However, I was affronted by the inclusion of their killings in Trump’s list, since it was at best a crass and callous error.
Our children’s deaths were ugly, brutal, and must have been utterly terrifying, and I find my mind attempting to recreate those events on a regular basis. This is a hurtful process, but I think it’s something I need to go through out of my love for Mia. And one day I am going to find the strength to visit the place where she died and meet Daniel Richards, the man who sat with her, risking his own life through those long hours of her death, and held her hand to soothe her while she died in his arms.
If I can find the strength to do this, surely some White House minion with a list to compile could take the trouble to get the facts right: Mia and Tom’s deaths were not committed out of some misguided interpretation of the Qur’an.
When I went out to Australia to retrieve my daughter’s body, I met Chris Porter who had accompanied Mia to the Home Hill hostel. He pointed out that Smail Ayad, the French national who has been charged with Mia’s murder, had not prayed in all the time they worked together in the cane fields around Townsville with my daughter and other people from the hostel. How could he be an Islamic fundamentalist if he did not respect the second of the five pillars of Islam? Ayad’s name suggests Islamic roots (he was of Algerian heritage) but that’s where the connection with Islam ends.
Mia was my only child, and what a gift of a child she was – a joyful creature who could light up a room with her smile. Arguably, that’s why she attracted the attention of her killer. He was apparently infatuated with her, but this is not necessarily the full story. According to press reports, Ayad had threatened to massacre his fellow backpackers even before Mia arrived.
I know that I will probably never receive answers to the questions I keep asking myself: why did these threats not trigger alarm bells with the staff at the hostel? Why was my girl placed in a dormitory with a potential killer, who had been “acting strangely” in the weeks and months up to her arrival? I can only guess that nobody cared enough to protect her.
Their backbreaking labour consisted of picking up rocks and stones before the harvester reached them, and Mia told me she felt the need to work fast to escape injury from the farm machinery. She also told me that she had already encountered a dead snake by day two.
I asked her if she’d had any induction into what to do in the event of a live encounter – knowing that snakes were a notorious hazard in the cane fields of Queensland – and she said no, she had no idea how she should act. From then on I was on red alert waiting for her calls: I knew this was no cultural exchange, and felt instinctively from the tone of her voice that she was panicky, and that her life was in danger.
My daughter was a migrant worker, and like migrant workers the world over she was treated as a disposable commodity. As a British parent of a delightful girl just out of school, with all the love of life in her eyes and a future of joy-filled love and laughter before her, this is difficult to bear. But it is a fact of life.
So Trump is right: there is a connection between my daughter and those travellers he wants to strip of their humanity and dignity in airports around the United States. But it’s not the connection he would wish to make. The connection is that my girl’s life was also held in scant regard by a harsh and unforgiving system that doesn’t value basic human rights.
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The Racist History of Incarceration That Donald Trump Is Threatening to Repeat |
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Wednesday, 08 February 2017 14:48 |
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Yu Hsi Lee writes: "As thousands of people gathered at airports across the country to rally against U.S. immigration officials for blocking entry to people with valid visas, some Japanese Americans wondered out loud whether the U.S. government had learned anything from its history."
Japanese-American boys at an internment camp in the United States during World War II. (photo: National Archives)
The Racist History of Incarceration That Donald Trump Is Threatening to Repeat
By Esther Yu Hsi Lee, ThinkProgress
08 February 17
The internment of American citizens during World War II cannot remain a historical footnote.
 ithin days of taking office, President Donald Trump made good on a harsh campaign promise and signed an executive order banning entry to people from seven majority-Muslim countries. The order also temporarily prevented green card holders and other legal immigrants from entering the country.
And as thousands of people gathered at airports across the country to rally against U.S. immigration officials for blocking entry to people with valid visas, some Japanese Americans wondered out loud whether the U.S. government had learned anything from its history.
Today’s headlines are a disturbing reminder of the mass exclusion and forced incarceration of legal U.S. residents during World War II. Most of the 120,000 people incarcerated in ten internment camps were of Japanese ancestry. Two-thirds were U.S. citizens.
In 1942, two months after the Japanese attack on Pearl Harbor, President Franklin D. Roosevelt signed Executive Order 9066 requiring all U.S. residents of Japanese ancestry to submit to government custody and “evacuate” the West Coast. Lt. Gen. John L. DeWitt, the head of the Western Defense Command based at the Presidio in San Francisco, helped lead the anti-Japanese effort.
There was no evidence that Japanese Americans were involved in activities that could hurt other Americans. But by May 20, 1942, cities like San Francisco were eerily devoid of Japanese American residents.
DeWitt claimed the lack of evidence meant that Japanese Americans were secretly planning an attack.
“The Japanese race is an enemy race,” DeWitt wrote at the time. “And while many second and third generation Japanese born on United States soil, possessed of United States citizenship, have become ‘Americanized,’ the racial strains are undiluted.”
The U.S. government has since formally apologized for the reactionary expulsion and paid each family $20,000 in reparations. But many people are now seeing a repeat of the same xenophobia and exclusion present in Trump’s executive order targeting refugees and people from certain countries with large Muslim populations. For Trump, the specter of a future attack on U.S. soil is enough to start indiscriminately punishing foreigners and, in some cases, legal immigrants.
Japanese Americans like Peter Yamamoto, a volunteer coordinator with the National Japanese American Historical Society (NJAHS), know what it means to be the target of government-sanctioned hatred. Although Trump has walked back promises to create a so-called Muslim registry, Yamamoto could envision the Trump administration moving forward with a similar dark scenario.
That’s because his father’s family was sent to the Gila River internment camp in Arizona between 1942 and 1945. After the Pearl Harbor attack, neighbors and friends suddenly stopped interacting with his family. There was no widespread support to prevent Japanese Americans from being rounded up for internment.
During a conversation at the NJAHS office, Yamamoto told ThinkProgress that his father “went through the same thing” as the people now targeted by Trump’s executive order. “It was just point-blank discrimination based on association with an image and he was associated with Japan.”
At the age of 11, Yamamoto’s Sansei father, a third-generation Japanese American, reeled in horror when the Pearl Harbor attack occurred. Yamamoto said his father’s immediate thought was that Japan had “created the pretext for us to be discriminated against.”
His father’s family members were sent from Los Angeles to Gila River, forced to sell or give away everything at a tremendous loss. Life was difficult in the camps. Labeled an “enemy alien,” Japanese American residents living in the internment camps were forced to answer a questionnaire asking whether they were “loyal” or “disloyal” to the United States.
One of the questions called on Japanese American residents to “swear unqualified allegiance” to the United States and “forswear any form of allegiance or obedience to the Japanese emperor, to any other foreign government, power or organization.” Another asked if individuals would be willing to serve with a segregated combat unit.
Out of the 75,000 people who filled out the questionnaire, 6,700 answered “no” to both questions, earning themselves the nickname of “no-nos.” And some 180,000 Japanese Americans served in the infamous 442nd Regimental Combat Team, whose “go for broke” motto helped them become the most decorated unit for its size and length of service. In total, they earned 9,486 Purple Hearts, 21 Medals of Honor, and seven Presidential Unit Citations.
“The ‘no-nos’ broke the community apart…and they didn’t talk to anyone,” Yamamoto said. “The ones who went to fight were killed or maimed. The ones who stayed were maimed psychologically or shunned to the side?—?made pariahs by their own community. It was a lousy situation. It’s almost as if it was made to be that way to dismantle the Japanese community.”
Returning back to society in 1945 was even more demoralizing for the Japanese-American community. Incarceration embittered his grandfather. As a Nisei, or a second-generation U.S. citizen, Yamamoto’s grandfather never stopped feeling “subtle resentment, real inferiority, and blame.”
Like many other forcibly incarcerated individuals, Yamamoto’s family never truly healed after their release.
“You cannot believe the intensity of the anger and prejudice and the hate that was expressed,” he said.
Yamamoto’s family history is just one of many stories of forced incarceration during World War II embedded into the tourist landscape of the ten square city blocks of Japantown.
Nearly two dozen historical plaques and interpretative signs dot the various areas of interest relevant to the 1940s, with black and white photos of Japanese Americans showing life before, during, and after internment.
On the birthday of Fred Korematsu, a Japanese American who challenged Roosevelt’s executive order, only two Japantown storefronts on the main strip displayed posters impressing the significance of his U.S. Supreme Court case on passersby. That poster was advertising a major event earlier that week featuring Fred’s daughter Karen Korematsu?—?who urged caution over Trump’s executive order targeting Muslims.
Fresh beige paint now coats the Kinmon Gakuen, or the Golden Gate Institute, a place for Japanese language learning?—?a building that was used in 1942 by the Wartime Civil Control Administration to process Japanese Americans for internment. Next door, a long mural guides visitors down a flight of stairs to the Nihonmachi Little Friends Preschool. The legible part of the mural reads in part, “Children of Nihonmachi Little Friends dedicate this mural to the memory of the Issei [first generation] and Nisei who were assembled at this site before being unjustly interned during World War II.”
To the north of the city, the Presidio of San Francisco is a prime hillside hotspot that offers breathtaking views for hikers making their way to the Golden Gate Bridge or onto the California Coastal Trail. Without the historical plaques, the unremarkable white buildings and Victorian-era houses here evoke a sanitized military past. But in November 1941, Presidio Building 640 served as a secret site for the U.S. army to train Japanese American soldiers as military linguists in the Military Intelligence Service in preparation for an impending war.
Only months later, Building 35?—?headquarters for the Western Defense Command (WDC)?—?would take on a more sinister use. It was in this white three-story building that DeWitt helped to oversee “the evacuation and relocation of Japanese Americans and people of Japanese descent living on the West Coast,” according to the National Parks Service. It was also here that DeWitt produced his first order in large bold font with a kerning that screamed urgency: “INSTRUCTIONS TO ALL PERSONS OF JAPANESE ANCESTRY,” first published in the San Francisco News on April 2, 1942.
Remarking on the visible markers around the city that speak to Japanese-American internment, Yamamoto believes that Trump could do well to learn the lessons of his family.
“Muslims understand that now?—?they’re walking down the street and other Americans start shouting at them,” Yamamoto said. “They are experiencing point-blank intense hatred. They’re identified with evil stereotypes.”
Americans should oppose Trump’s Muslim ban at all costs, Yamamoto added. “It’s unconstitutional, inhumane, based on hatred which is something alien to what Americans are supposed to stand for or any world citizen.”
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FOCUS: Elizabeth Warren Won't Be Silenced - and Neither Will American Women |
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Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=30488"><span class="small">Jessica Valenti, Guardian UK</span></a>
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Wednesday, 08 February 2017 12:49 |
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Valenti writes: "Senate Republicans seem to be under the mistaken impression that having elected a notorious misogynist as president means that they can stifle women's voices without anyone noticing or caring."
Elizabeth Warren. (photo: Michael Dwyer/AP)
ALSO SEE: Here's That Coretta Scott King
Letter That Got Elizabeth Warren in Trouble
Elizabeth Warren Won't Be Silenced - and Neither Will American Women
By Jessica Valenti, Guardian UK
08 February 17
Mitch McConnell’s actions in the Senate stand in a long tradition of Republicans trying to stifle women’s voices. But we’re determined to be heard
 enate Republicans seem to be under the mistaken impression that having elected a notorious misogynist as president means that they can stifle women’s voices without anyone noticing or caring.
That’s the only explanation I can muster for why they thought that it was acceptable – or strategically sound – to silence Elizabeth Warren on Tuesday night during a debate over Jeff Sessions’ nomination as attorney general. Republicans really must have thought it was in their best interest. They really must not be paying attention.
After claiming that Warren broke Senate rules by reading from a 30-year-old letter from Coretta Scott King opposing Sessions for a federal judgeship, majority leader Mitch McConnell said: “She was warned. She was given an explanation. Nevertheless, she persisted.”
It’s a familiar refrain for most women – we’ve all had men try to shut us down and get frustrated when we dared to “persist”. So it should come as no surprise that Wednesday morning, #LetLizSpeak, #ShePersists and Silencing Elizabeth Warren were all trending on Twitter.
In the wake of Hillary Clinton’s loss and the massive Women’s Marches across the country, American women simply won’t stand for Republicans trying to shut us up.
What was especially loathsome about the Republican’s move was that they didn’t just silence Warren – they silenced Coretta Scott King, activist and widow of Dr Martin Luther King Jr. During Black History Month, no less.
As writer Broderick Greer tweeted out: “Tonight we saw that folk will go to great lengths to silence black women, even after they’ve died.” Donna Brazile, chairwoman of the Democratic National Committee, said: “It’s a sad day in America when the words of Martin Luther King Jr’s widow are not allowed on the floor of the United States Senate.”
Especially when those words are so pertinent to the issue at hand: Sessions’ suitability for the position of US attorney general. This is a man who was denied a federal judgeship amid accusations of racism; a man who, according to a former colleague, called organizations like the ACLU and NAACP “un-American”; a man who also reportedly referred to a black man as “boy”, an allegation he denies.
In a recent letter signed by more than 400 human rights organizations opposing Sessions’ nomination, the Leadership Conference on Human Rights wrote: “Senator Sessions has a 30-year record of racial insensitivity, bias against immigrants, disregard for the rule of law and hostility to the protection of civil rights.”
While these may be uncomfortable truths for Republicans to hear, they don’t get to stick their fingers in their ears or drown out the words of women who have real and substantive criticisms of Sessions. (And if you think this isn’t about women, consider that Senator Jeff Merkley read from the same letter later Tuesday night and was allowed to finish without interruption.)
After being silenced, Warren took to Facebook Live to read the letter instead; at last check it’s been watched more than 6m times. The censure by Republicans only served to shine a spotlight on Warren, and Scott King’s, message. It was a reminder that no matter what Trump does, no matter what measures Republicans make take – women will persist.
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he order floated down from the lunatic's castle late on a Friday. No more visas of any kind from seven countries, Donald Trump decreed, and mayhem replaced a weekend.
