Second-Guessing on National Security

February 6th, 2017

Every year when I teach Korematsu, I always make a point to discuss the remarkable confession of error filed in 2011 by Acting SG Neal Katyal, which stated in frank terms that information submitted to the Court was false. Hindsight, though, is always 20/20. I ask my students what if, in fact, there was a threat from certain Japanese-Americans on the west coast, and that the exclusion policy was the only way to protect national interests? What if the government had certain classified information that was not, or perhaps could not, be disclosed to the Court? What if the Court had ruled that the exclusion order was unconstitutional, and someone freed from an internment camp had engaged in a terroristic activity? (Or, as Justice Scalia put it in his Boumedienne dissent, judicial intervention “will almost certainly cause more Americans to be killed.”).

I pose these students to my question to get them to think about the limited institutional capacity of courts. Judges make their decisions based on a limited set of facts: the briefs, the news, and their own values. At the end of this discussion, I note that the questions are largely hypothetical. Even in recent cases, the courts have not second-guessed the administration’s determinations of what does, and does not, pose a threat to national security. Even in cases where such interests are implicated (such as the Pentagon Papers case or the Guantanamo cases), the Court takes the facts submitted as a given, but stresses that the government has not met some heightened burden of proof to justify the actions..

Now, however, we are in a very different places. Consider this colloquy from Judge Robart’s hearing:

THE COURT: The rationale for Section 3 is invoking 9/11. And my question to you is: Have there been terrorist attacks in the United States by refugees or other immigrants from the seven countries listed, since 9/11?

MS. BENNETT: Your Honor, I don’t know the specific details of attacks or planned attacks. I think — I will point out, first of all, that the rationale for the order was not only 9/11, it was to protect the United States from the potential for terrorism. I will also note that the seven countries that are listed in the Executive Order are the same seven countries that were already subject to other restrictions in obtaining visas that Congress put in place, both by naming countries, Syria and Iraq, and that the prior administration put in place by designating them as places where terrorism is likely to occur, or — the specific factors are whether the presence in a particular country increases the likelihood that an alien is a credible threat to U.S. security or an area that is a safe haven for terrorists.

THE COURT: Well, let me walk you back, then. You’re from the Department of Justice, if I understand correctly?


THE COURT: So you’re aware of law enforcement. How many arrests have there been of foreign nationals for those seven countries since 9/11?

MS. BENNETT: Your Honor, I don’t have that information. I’m from the civil division if that helps get me off the hook.

THE COURT: Let me tell you. The answer to that is none, as best I can tell. So, I mean, you’re here arguing on behalf of someone that says: We have to protect the United States from these individuals coming from these countries, and there’s no support for that.

From a jurisprudential perspective, this exchange is remarkable. The judge is telling the Justice Department official that because there have been zero “arrests of foreign nationals,” there is no basis to support the policy. The DOJ lawyer, left flat-footed, gave the wrong response. If I were in her shoes, I would have replied:

Your honor, are you aware of the number of investigations against such people that have not been made public, or the number of terrorists incidents that were averted due to never-before-publicized investigations?

The answer of course is the judge has no idea. His addition of “as best as I can tell” was more-than-revealing. As we are often reminded, the absence of any terrorist attacks does not mean none are being thwarted.

Later in the argument, Judge Robart suggested that there is no rational basis to justify this action.

THE COURT: Well, counsel, I understand that from your papers, and you very forcefully presented that argument. But I’m also asked to look and determine if the Executive Order is rationally based. And rationally based to me implies that to some extent I have to find it grounded in facts as opposed to fiction.

If only this were true of the rational basis test! The rational basis test, as understood by Williamson v. Lee Optical, encourages courts to manufacture facts which can support the government’s action. I’ve written at length that such a test is a judicial fiction. I encourage courts to demand real evidence to uphold all state action. But what we have here is not rational basis review, in even its most rigorous form. This sort of pretextual analysis sounds in the Court’s decision in Whole Women’s Health: that the state’s proffered evidence is pretextual, and false, and the laws are not truly public safety measures. But here, unlike in the abortion caselaw, where facts are known to the world, the government (purportedly) has some evidence that is private that justifies their decisions.

Judge Robart is not alone in second-guessing the administration’s conclusions. A number of former senior officials from the Obama, Bush, and Clinton administrations have submitted a declaration to the 9th Circuit, which emphatically rejects any assertion that the Executive Order will benefit national security. It states:

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.” 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. It could do long-term damage to our national security and foreign policy interests, endangering U.S. troops in the field and disrupting counterterrorism and national security partnerships. It will aid ISIL’s propaganda effort and serve its recruitment message by feeding into the narrative that the United States is at war with Islam. It will hinder relationships with the very communities that law enforcement professionals need to address the threat. It will have a damaging humanitarian and economic impact on the lives and jobs of American citizens and residents. And apart from all of these concerns, the Order offends our nation’s laws and values.

As Steve Vladeck noted on Twitter, this statement further undermines the Trump administration’s argument that the injunction harms national security interests.

To rule against the government here, the 9th Circuit, and ultimately the Supreme Court, will have to hold that the Executive Order is premised on “alternative facts.” This is not something any court (to my knowledge at least) has ever done. Judge Robart addresses this fact during this colloquy with Washington Solicitor General Noah Purcell:

THE COURT: All right. Has any court ever set aside an immigration law or regulation on equal protection grounds based on rational review? I understand it’s not the centerpiece, but you’ve pled it and so you’re going to get questioned about it.

MR. PURCELL:  … I am not aware of an immigration order being set aside on equal protection grounds. On the other hand, I’m not aware of any Executive Order quite like this one, that there’s so much evidence, before there’s even been any discovery, that it was motivated by animus, religiously targeted, and just utterly divorced from the stated purposes of the order. And I’m happy to talk about that more in terms of — the government is asking for an extraordinary level of deference here, essentially saying that you can’t really look at what were the real motives for the order; you can’t test its legality. And we just think that’s wrong, legally and factually.

As I’ve told several media sources, this case is in every sense unprecedented.