Hameed Darweesh aided U.S. armed forces in Iraq as a translator and electrical engineer for over a decade. For obvious reasons, that put his life at risk. After his home was raided by Baghdad police and two of his colleagues were murdered at work, he and his family fled to another part of Iraq, according to court documents. Darweesh and his family then had to flee their new town when a shopkeeper informed him men driving around in a BMW were asking for him and wanted to know where he lived.
Darweesh is one of thousands of Iraqis who have risked their lives by cooperating with or working for the U.S. government. Congress created the Iraqi and Afghan Special Immigrant Visa (SIV) program to get people like him who have “provided faithful and valuable service to the United States Government” out of harm’s way. But the process is painfully slow, and the number of people who actually receive visas after receiving promises of protection from the U.S. is shameful.
After over three years of applications, background checks, medical exams and other processing, the Darweesh family finally received their visa last week. They got on a plane immediately. While they were in the air, thinking they were finally on their way to the land of the free, President Trump signed a cruel and illegal executive order on immigration.
The order bans nationals from seven majority-Muslim countries from entering the United States for 90 days; the White House initially said this should be interpreted to include even those who are lawful permanent residents of the U.S. who had been out of the country temporarily. The order also halts all refugee admissions from anywhere in the world for 120 days, and all refugee admissions from Syria – where one of the greatest humanitarian crises since the Holocaust is underway – indefinitely.
Darweesh was separated from his family upon arrival at New York’s JFK airport and held in detention without access to his attorneys for 19 hours. While he was detained, the American Civil Liberties Union (ACLU) and other legal groups filed an emergency petition in New York federal court on behalf of Darweesh, another Iraqi man detained at JFK and similarly situated individuals – that is, the unknown number of visa- and green-card-holders being unlawfully detained at airports across the country.
Trump’s executive order is all kinds of illegal. As the ACLU’s complaint explains, the Fifth Amendment bars the government from depriving individuals of their liberty without due process of law. The Immigration and Nationality Act, as well as U.S. obligations under international law, give any alien present in the U.S. the right to apply for asylum. And the United Nations Convention Against Torture bars the U.S. from returning a noncitizen to a country where he or she faces torture or persecution.
Attorneys also argued Trump’s executive order violated detainees’ Fifth Amendment right to equal protection of the law because it discriminates on the basis of national origin and is motivated by animus toward Muslims. And they said Trump lacks the authority for his actions under the Immigration and Nationality Act, which gives the president broad immigration powers but specifically forbids discrimination on the basis of a person’s race, nationality or place of birth or residence in the issuance of visas.
The New York court issued an emergency order temporarily barring the government from deporting anyone being held under Trump’s order nationwide because those individuals will likely be able to prove after a full hearing that their due process and equal protection rights have been violated. It didn’t order that detainees be released, but Darweesh and a number of other detainees held at JFK have been. In a similar lawsuit brought by detainees at Dulles airport, a Virginia court barred deportations for lawful permanent residents (people with green cards) for seven days and ordered that detainees be allowed to speak to lawyers. A Massachusetts court, meanwhile, ordered all detainees in the state to be released. “Lawyer flash mobs” at airports across the country have been frantically trying to get detainees released, but the situations of the estimated 100 to 200 people who the ACLU estimates have been impacted by Trump’s order across the U.S. seem to be varied. Others have already been sent back to their countries. As of Sunday afternoon, there are reports of customs agents in New York violating the court orders.
These court orders don’t help visa-holders who aren’t currently in the U.S. or in transit, but another lawsuit is in the works that hopefully will. Trump’s order is also a violation of the First Amendment’s protection against the establishment of religion, which prevents the government from preferring one religion over another. It can be difficult to prove that the intent of a law is to discriminate on the basis of religion, but Trump has been unusually candid.
The man who made “Muslim ban” a household term is now claiming his executive order is nothing of the sort – almost certainly because someone told him banning a religious group would be unconstitutional, as was obvious even to Mike Pence. So now Trump is denying the law is meant to discriminate against Muslims and is trying to stick to calling it “extreme vetting,” with mixed results. He told reporters Saturday, “We’re going to have a very, very strict ban, and we’re going to have extreme vetting.”
Rudy Giuliani told Fox News on Saturday that Trump had stopped calling it a Muslim ban and tasked Giuliani with coming up with “how to do it legally.” Indeed, someone on Trump’s team appears to have made some effort to make the executive order look less unconstitutional on its face. It states that once the refugee program resumes in 120 days, applicants who are members of minority religions in their country will receive preference – this is a sneaky way to give priority to Christians over Muslims fleeing persecution in Muslim-majority countries. But Trump came right out and told the Christian Broadcasting Network that the plan is to favor Christians.
There’s further evidence of animus toward Muslims in the unnecessarily cruel way Trump implemented the ban. One almost wishes it was the administration’s incompetence that caused the chaos and confusion that has ensued across the globe since Trump’s order was released late in the day Friday – from massive protests to the flurry of legal filings to the detention of a 77-year-old woman as her 9-year-old granddaughter sat at the airport with a “Welcome home, grandma” sign. Trump could have put an equally draconian order in place in an orderly manner with fair warning so people didn’t leave their countries only to end up stranded in the U.S. or sent back. Trump didn’t just crack down on immigration – he did it in the most theatrical way possible to show his supporters he’s serious about making life hell for Muslims. That amounts to further evidence of an unconstitutional purpose for the courts to take into account.
But there’s something even worse than Trump’s lack of concern for all the specific laws and constitutional precedents his order violates: his fundamental disdain for the principle, underlying all of our laws, that promises matter. Acting in reliance on representations made by the United States of America, people left their homes and sold their belongings. Some bought expensive plane tickets or a new shirt to celebrate their new life. Others turned down lucrative jobs or a prestigious education in other countries that would have loved to have them. Hameed Darweesh and the others with Special Immigrant Visas, who make up a quarter of those impacted by Trump’s order, put themselves and their families in danger.
In his business career, Trump famously bilked Trump University students with promises he later denied making, took money entrusted to him by shareholders for ventures he ran into the ground and regularly refused to pay contractors what he’d agreed to. What Trump calls “renegotiating” a deal is nothing more than breeching a contract with someone less powerful who can’t do anything about it.
And now, as president, he’s acting on our behalf. America has made promises that have been relied upon by countries and people all over the globe – and Trump doesn’t care at all about keeping them.
