Related 5MA assignment: Activism matters. Pick a topic you care about and call your representatives, or write a postcard. Even if you’ve done it before for that topic, do it again!
This week we had some specific questions about some of the politics and legalities related to the Muslim Ban, and so we headed down to our local international airport to talk to some of the lawyers there. (If this makes NO sense to you, jump down to the “Muslim Ban” section at the bottom of this article.)
The lawyers have been actually taking shifts and hanging out at airports around the country to help detainees’ families. And as of our visit, there were no detainees at DFW airport. These folk had some time to talk.
NOTE: The entire conversation below is paraphrased, and filtered through my understanding of the conversation. I am not a lawyer, and the folks I was talking to weren’t officially “on the record” because I’m not officially a journalist. Please correct, verity, and take with a grain of salt, as needed.
We asked about the rulings
As you might know, there were a handful of challenges to the Muslim Ban over the weekend, resulting in a handful of federal rulings. One of these prevented the immediate deportation of detainees with valid visas; the order applied nationwide. A district judge’s order to allow detainees to see legal counsel was ignored at Dulles.
We asked, in short: how can CBP agents get away with flouting a court order? The answer, much paraphrased, was:
In these cases, the next step is to get a contempt order. Following that, if the order is enforced then there can be penalties – either monetary or jail time. That’s when the U.S. Marshals come in. But, what the courts want to happen, and what usually happens, is that the threat of “the stick” causes the bad guys to change their behavior. That’s much better than actually having to file for contempt and then haul someone off to jail.
So, all the protests and resistance, and the threat of the ACLU stepping in again, will hopefully get the remaining CBP guys (and others) to do what they’re supposed to do; i.e., comply with the rulings.
We asked about enforcing the orders
Okay, so there is in effect legal posturing and pressure to get people to behave properly. Why not just go ahead and haul people in? Wouldn’t that be more just? Again, much paraphrased:
Well, what we have here is U.S. Marshals with guns…federal employees. And CBP guys with guns. Also federal employees. The Marshals really, really don’t want to get into that situation if they can help it. Because what if CBP didn’t back down? What then? [It was clear we were talking about a potentially deadly confrontation.] We’re already rushing toward a Constitutional crisis, and no one really wants to speed that along.
There’s something else to consider, too. The court in Brooklyn granted a temporary stay, based on the four criteria for a preliminary injunction: a substantial likelihood of success, they face a substantial threat of immediate irreparable injury, that there is a balance of harms for the party seeking the injunction, and the injunction would serve the public interest. All four of those were met for people who were, at that time, detained. So the stay was granted.
Under any other circumstances, the law moves very slowly, and it does so on purpose. If you rush the law, you get shitty laws that can be overturned.
[I found this part of the discussion to be VERY important; after all, the Executive branch is currently rushing to make new law, and they’re likely to have quite a lot of it overturned in the medium or long run. There is wisdom in taking one’s time.]
And, there are other complications
Everyone’s wary about trying to overturn things [like Executive Orders] coming from the Executive branch, because there’s this view that the Judicial should not impose its views on the Executive branch. This is, unfortunately, where you start to get the “I’m just following orders” arguments.
[Because what federal employee wants to stake their job on, “You know what? The president doesn’t know what he’s doing!”]
What’s more, the area behind those doors [the international arrivals doors] is considered kind of a nowhere zone. It’s not technically in America. [This is, I think, like embassies, where you have a patch of American land in another country. Or if you like, it’s like that Tom Hanks movie “The Terminal”, based on a real life story, where the guy is stuck at an airport for months because of diplomatic limbo.]
So, there’s some question [I think he said there’s some question] as to whether the people behind those doors are protected under U.S. law, or not. [I imagine we didn’t cover this part very comprehensively.]
In your experience, what are the best things we can do to resist?
Make the calls. If you get full mailboxes, tell Bernie Sanders; he said he’s collecting that information right now. Tweet at the airlines: Qatar, Lufthansa, others, and tell them to let people on the planes. Did you know that in some of the “banned” countries, they’re not even letting those folks on the planes? It’s a breach of contract!
I talked about how we as citizens don’t know for sure what activism matters, what’s most effective. They went on.
Activism matters. The calls matter. Letters matter. The protests matter. Keep doing those things, and settle in for the long haul. We’re already seeing people starting to burn out, because they come down here [to the airport] and then go in to their day jobs. You need to take a night off, watch a movie, have a glass of wine. Because this isn’t a short term fight. You’ve got to be in it for all four years.
It’s like in those safety demonstrations: you have to secure your own oxygen mask before you can help others.
It’s me again. I’d like to extend a MASSIVE thank you to the folks who took the time to answer our questions, and for their selflessness in volunteering for the detainees and their families.
I wrote earlier this week about the letter I sent to my representatives regarding the Muslim Ban, but we haven’t actually talked about what it is or what happened. In case you haven’t been keeping up, here’s the shortest of short summaries:
- Late on Friday January 27, Donald Trump released an executive order called “Protecting the Nation from Foreign Terrorist Entry into the United States”. Here’s CNN with the full text of the EO. (He’d already released another executive order regarding illegal immigants in the U.S., but that’s a different one entirely.)
- The order went into effect immediately, stranding many people in airports across the nation in the Customs and Border Patrol area of their destination airport.
- People across the nation were outraged, and showed up by the thousands to major international airports to protest. Lawyers showed up and donated their time to help families of detainees (though they were not, and are not currently, allowed to talk to the detainees still in CBP).
- It turns out that the order wasn’t reviewed by many of the normal governmental departments, came without any specific orders at all (and so created quite a lot of chaos), and was rather broad in scope.
- The ACLU went to federal court Saturday night; several rulings were given, including a temporary stay.
- Things have still not been particularly clear, and there continue to be issues with CBP officials ignoring the Federal orders. That’s an entire other blog post.
Here’s CNN again with a kind of recap of everything that happened that weekend.