I’ve just finished reading through several excellent stories about Trump’s immigration edict.
The first consists of links to primary documents (“Litigation Documents & Resources Related to Trump Executive Order“). Here’s you’ll find the legal memos from cases filed in several jurisdictions. Read the legal arguments first hand.
The next article is by Ben Wittes at the Brookings Institution, “Malevolence Tempered by Incompetence: Trump’s Horrifying Executive Order on Refugees and Visas.”
I worked with Ben Wittes early in his career. In the mid-1990s, I was an investigative reporter for the Honolulu Star-Bulletin. Ben was a reporter for Legal Times when we first worked together, and later moved to the Washington Post. We were both chasing stories about illegal fundraising by the Democratic National Committee during Bill Clinton’s 1992 campaign, which happened to involve several people from Hawaii. I was digging into the story from the local side, Ben from the Washington side.
Here’s his lead in the current story:
The malevolence of President Trump’s Executive Order on visas and refugees is mitigated chiefly—and perhaps only—by the astonishing incompetence of its drafting and construction.
NBC is reporting that the document was not reviewed by DHS, the Justice Department, the State Department, or the Department of Defense, and that National Security Council lawyers were prevented from evaluating it. Moreover, the New York Times writes that Customs and Border Protection and U.S. Citizen and Immigration Services, the agencies tasked with carrying out the policy, were only given a briefing call while Trump was actually signing the order itself. Yesterday, the Department of Justice gave a “no comment” when asked whether the Office of Legal Counsel had reviewed Trump’s executive orders—including the order at hand. (OLC normally reviews every executive order.)
This order reads to me, frankly, as though it was not reviewed by competent counsel at all.
And then Wittes goes on to cite other published accounts showing just that. The Trump cabal intentionally avoided having the proposed order reviewed by the agencies with expertise in the areas involved, relying instead on hiding it even from those with a clear need to know.
Wittes then states his belief that the executive order is not in fact intended to improve national security, as it purports to do.
…in the rational pursuit of security objectives, you don’t marginalize your expert security agencies and fail to vet your ideas through a normal interagency process. You don’t target the wrong people in nutty ways when you’re rationally pursuing real security objectives.
When do you do these things? You do these things when you’re elevating the symbolic politics of bashing Islam over any actual security interest. You do them when you’ve made a deliberate decision to burden human lives to make a public point. In other words, this is not a document that will cause hardship and misery because of regrettable incidental impacts on people injured in the pursuit of a public good. It will cause hardship and misery for tens or hundreds of thousands of people because that is precisely what it is intended to do.
And then from Foreign Policy Magazine, a further account of Trump’s policy of secrecy (“Steve Bannon Is Making Sure There’s No White House Paper Trail, Says Intel Source“).
It’s pretty troubling, if you’re someone concerned about the processes of a democratic government.
“They ran all of these executive orders outside of the normal construct,” he said, referring to last week’s flurry of draft executive orders on everything from immigration to the return of CIA “black sites.”
After the controversial draft orders were written, the Trump team was very selective in how they routed them through the internal White House review process, the official said.
Under previous administrations, if someone thought another person or directorate had a stake in the issue at hand or expertise in a subject area, he or she was free to share the papers as long as the recipient had proper clearance.
With that standard in mind, when some officials saw Trump’s draft executive orders, they felt they had broad impact and shared them more widely for staffing and comments.
That did not sit well with Bannon or his staff, according to the official. More stringent guidelines for handling and routing were then instituted, and the National Security Council staff was largely cut out of the process.
By the end of the week, they weren’t the only ones left in the dark. Retired Marine Gen. John Kelly, the secretary of homeland security, was being briefed on the executive order, which called for immediately shutting the borders to nationals from seven largely Muslim countries and all refugees, while Trump was in the midst of signing the measure, the New York Times reported.
In any case, these articles all dig behind the rapidly moving headlines. The details aren’t pretty.