Courts Have Pushed Back During The War On Terror When The Executive Branch Asked Them To Butt Out

The Justice Department is arguing that a Seattle federal judge was wrong to “second-guess” Trump’s travel ban, given the national security concerns at play. Courts pushed back against similar arguments in post-9/11 cases.

WASHINGTON — When President Trump lashed out at the federal judge in Seattle who blocked enforcement of his travel ban last week, Trump invoked the threat of terrorism. If “something happens,” he tweeted, the judge was to blame.

The US Court of Appeals for the Ninth Circuit will hear arguments Tuesday afternoon about whether to lift US District Judge James Robart’s Feb. 3 order putting Trump’s travel ban on hold. Echoing Trump’s tweets, one of the US Department of Justice’s arguments is that Robart was wrong to “second-guess” the executive branch’s decisions about national security.

Although it’s true that judges tend to defer to the political branches to decide what’s necessary to protect national security, they’ve pushed back against the notion that they have no role at all.

The state attorneys general challenging Trump’s executive order on immigration point to earlier cases involving detainees at the US military facility at Guantánamo Bay, Cuba, in response to the government’s national security argument. In the late 2000s, a separation-of-powers showdown about whether detainees could go to US courts to challenge their detention reached the US Supreme Court. In 2008, a majority of the justices found that they could.

Justice Anthony Kennedy wrote the opinion in the case, Boumediene v. Bush. “Liberty and security can be reconciled,” he wrote, “and in our system they are reconciled within the framework of the law.”

“Officials charged with daily operational responsibility for our security may consider a judicial discourse on the history of the Habeas Corpus Act of 1679 and like matters to be far removed from the nation's present, urgent concerns. Established legal doctrine, however, must be consulted for its teaching,” Kennedy wrote.

The states challenging Trump’s travel ban cited the Boumediene decision to show that “courts routinely review executive decisions with far greater security implications than” Trump’s executive order. The order halted travel from seven countries and suspended the US refugee program. Trump couched it in terms of national security, saying the temporary travel ban was necessary to give agencies time to review immigration processes to make sure terrorists couldn’t enter the United States.

The Justice Department disputed the comparison to the Guantánamo Bay cases, arguing in papers filed on Feb. 6 in the Ninth Circuit that the Supreme Court ruled in 2004 that Guantánamo Bay detainees had rights under the constitution or federal law to challenge their detention. Individuals affected by Trump’s executive order were in a different legal position, the government said.

“Those cases do not override the longstanding rule that aliens outside the United States have no right or interest in their admission to the United States protected by the Due Process Clause … or the rule that non-immigrants do not have a liberty or property interest in the retention of a visa,” the Justice Department argued.

In the Boumediene case in the Supreme Court, four justices dissented. Chief Justice John Roberts Jr. wrote in one dissenting opinion that by giving US courts jurisdiction over Guantánamo Bay detainee cases, the court had shifted responsibility for “sensitive foreign policy and national security decisions from the elected branches to the federal judiciary.”

The late Justice Antonin Scalia wrote in a separate dissenting opinion that “how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails.” He wrote later: “The nation will live to regret what the court has done today.”

Steven Vladeck, a professor and national security law expert at the University of Texas School of Law, said that despite fears that the US civilian courts weren’t equipped to delve into national security issues, they successfully handled Guantánamo Bay detainee cases after the Boumediene decision. And there’s no indication that it led to increased threats against the United States, he said.

“It’s one thing to say we should be deferential, it’s another to say, we shouldn’t scrutinize at all because of national security,” Vladeck said. Vladeck is part of a group of law professors who filed a brief on Monday in the Ninth Circuit in the travel ban case in support of the challengers, arguing that the courts did have authority to review executive branch decisions on immigration policy.

There have been other, less high-profile cases in which federal judges asserted their authority to review actions by the executive and legislative branches that touched on national security, over objections from the Justice Department.

In April 2014, US District Judge Rosemary Collyer dismissed a civil lawsuit brought against the federal government by the families of two US citizens, one of whom was reportedly an al-Qaeda leader, killed by US drone strikes in Yemen. But before dismissing the case, Collyer found that she did have authority to consider the case, rejecting arguments to the contrary from the Justice Department.

“The powers granted to the executive and Congress to wage war and provide for national security does not give them carte blanche to deprive a U.S. citizen of his life without due process and without any judicial review,” Collyer wrote.

In another case, US District Judge Gladys Kessler — one of Collyer’s colleagues in the US District Court for the District of Columbia, a major forum for terrorism-related cases — in October 2014 ordered the unsealing of videos that showed a Guantánamo Bay detainee being forcibly fed while he was on a hunger strike. The government argued that the court couldn’t question the executive branch’s authority to classify national security information, and that releasing the tapes could incite violence against the United States.

“What the government is really saying is that its classification system trumps the decisions of the federal courts as to the public's access to official court records; in other words, the executive branch (in this case, the military) purports to be a law unto itself,” Kessler wrote in an October 2015 ruling rejecting the government’s argument that she should reconsider her unsealing order.

The government is appealing Kessler’s decision in the DC Circuit, which heard arguments in September but hasn’t ruled yet.

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