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OpEdNews Op Eds    H3'ed 2/6/17

Though Blocked for Now, Trump's Unconstitutional Muslim Ban Deserves Total Destruction

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The EO Violates the Convention Against Torture

Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) establishes the principle of nonrefoulement. It forbids states parties from expelling, returning or extraditing a person to a state "where there are substantial grounds for believing that he would be in danger of being subjected to torture." Refugees often flee repressive regimes to escape persecution. Sending people back to a country where they may well suffer torture violates the CAT.

The EO Violates the International Covenant on Civil and Political Rights

Article 2 of the International Covenant on Civil and Political Rights (ICCPR) forbids states parties from making distinctions in the provision of civil and political rights based on "race, colour [sic], sex, language, religion, political or other opinion, national or social origin, property, birth or other status." By giving fewer rights to Muslims than non-Muslims, Trump is violating the ICCPR.

The EO Violates the Immigration and Nationality Act

According to the Immigration and Nationality Act of 1965, no person can be "discriminated against in the issuance of an immigrant visa because of the person's race, sex, nationality, place of birth or place of residence." By singling out people from majority-Muslim countries, Trump has violated the Immigration and Nationality Act.

Legal and political fallout

Attorneys general from 15 states and the District of Columbia issued a joint statement condemning the EO. One thousand State Department employees likewise opposed the EO.

After federal courts stayed the ban, acting Attorney General Sally Yates ordered the Justice Department not to defend the EO, saying she wasn't convinced it was lawful. Trump responded by firing Yates, stating she had "betrayed the Department of Justice."

Ironically, Senator Jeff Sessions, who will become Attorney General once the Senate confirms his nomination, asked Yates at her confirmation hearing whether she thought the Attorney General had "the responsibility to say no the President if he asks for something that's improper."

Sessions' fingerprints are all over the Muslim ban. The Daily Beast reported that Sessions, Steve Bannon and senior policy advisor Steven Miller (a Sessions confidant) drafted the EO.

Hundreds of people were kept in limbo after Trump issued his order. A five-year-old boy was separated from his mother for four hours. Erez Reuveni, an attorney with the Justice Department's Office of Immigration Litigation, said more than 100,000 visas have been revoked. He could not say, however, how many people who had visas were sent back to their home countries. But, William Cocks from the State Department Bureau of Consular Affairs wrote in an email to NBC News, "Fewer than 60,000 individuals' visas were provisionally revoked to comply with the Executive Order."

Although thousands protested the Muslim ban at airports around the country, White House chief of staff Reince Priebus told CBS News that the ban could be extended.

After Judge Robart issued the nationwide stay on Friday, the White House vowed to appeal the ruling. Trump tweeted, "The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!" In another tweet, Trump wrote, "When a country is no longer able to say who can, and who cannot, come in & out, especially for reasons of safety & security -- big trouble!"

But the Department of Homeland Security announced it would comply with Robart's order. "In accordance with the judge's ruling," DHS acting press secretary Gillian Christensen said, "DHS has suspended any and all actions implementing the affected sections of the Executive Order entitled, 'Protecting the Nation from Foreign Terrorist Entry into the United States.' This includes actions to suspend passenger system rules that flag travelers for operational action subject to the Executive Order."

The US State Department also reversed the cancellation of the 60,000-100,000 visas revoked after the EO was issued.

The rubber will meet the road when federal appellate judges, and probably the Supreme Court, rule on the merits of these petitions. If the petitioners ultimately prevail, we will see whether the Trump administration fulfills its legal duty to act in accordance with those judicial decisions.

An earlier version of this article also appeared at The Jurist

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Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, deputy secretary general of the International Association of Democratic Lawyers, and a member of the National Advisory Board of Veterans for Peace. Her most recent book is Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues. See  (more...)

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