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Former national-security officials file Sixth Circuit amicus brief calling Trump’s Muslim Travel Ban discriminatory and a threat to national security

Monday, August 3, 2020

49 former national-security officials urge court to let Michigan federal case challenging the ban proceed.

Cincinnati, OH – On Friday, July 31, 49 former, high-ranking national-security officials submitted an amicus curiae (“friend of the court”) brief to the U.S. Court of Appeals for the Sixth Circuit criticizing the Trump administration’s Travel Ban against several predominantly Muslim countries as unjustified, discriminatory, and a threat to America’s national security.

Among these officials are

A complete list of the 49 officials is below.

The former national-security officials’ brief supports the ACLU of Michigan and Arab American Civil Rights League’s case challenging the legality of the 2017 presidential executive orders banning entry into the U.S. from select Muslim-majority countries. The case is captioned, Arab American Civil Rights League, et al. v. Trump, et al., E.D. Michigan Case No. 2:17-cv-10310, Sixth Circuit Case No. 19-2375.

In 2017, Defendant Donald Trump signed three executive orders, landing on the current, September 24, 2017 “Muslim Ban” (Travel Ban 3.0), which places visa and entry restrictions on eight predominantly Muslim countries. Although multiple parties, including those to this suit, have filed lawsuits to block the ban before trial, the U.S. Supreme Court ruled that the government could implement the ban while litigation is pending.

A number of the former national-security officials were current on active intelligence regarding credible terrorist threat streams directed against the United States as recently as one week before the issuance of the original January 27, 2017, Executive Order on “Protecting the Nation from Foreign Terrorist Entry into the United States” (“Travel Ban 1.0”). Some were current around the time of the identically titled March 6, 2017, Executive Order (“Travel Ban 2.0”), mere months before the September 24, 2017, “Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats” under legal challenge.

In their amicus brief, the former national-security officials inform the court that based on their collective experience, Travel Ban 3.0 advances neither the national-security nor the foreign-policy interests of the United States. Indeed, the amicus brief shows, the Ban actually harms American interests.

The national-security officials observe that there was no evidence of credible terrorist threats from the banned countries, nor proof that nationals of these countries put America at risk. Without evidence that the listed countries and their residents pose a credible threat to the domestic safety of the United States, the executive order is unjustifiable and unlawful.

And, the former officials say, Travel Ban 3.0 also harms U.S. national-security and foreign-policy interests. Hundreds of families have been torn apart because of the ban, causing near-irreparable suffering. In many cases, those seeking refuge in the United States due to the political climates in other countries can no longer find safety.

The ban has isolated the United States in its counterterrorism policies and left a gaping hole in the efforts to address threats by terrorist organizations. Coupled with the clear anti-Islamic rhetoric Defendants use, Travel Ban 3.0 has disrupted diplomatic relationships and left the U.S. vulnerable to serious threats.

The amicus brief urges the Court not to dismiss the plaintiffs’ complaint and—as the court normally would in other cases where the complaint is sufficiently detailed—allow the matter to proceed to discovery into the discriminatory motives behind the ban and the lack of evidence justifying it.

These officials are represented by Harold Hongju Koh and his students at the Peter Gruber Rule of Law Clinic at Yale Law School, Phillip Spector of Messing & Spector LLP, and Subodh Chandra of The Chandra Law Firm LLC.

For further information, contact Phillip Spector, (212) 960-3720, PhilSpector@ylsclinics.org.

List of Amici Curiae

1. Madeleine K. Albright served as Secretary of State from 1997 to 2001. She previously served as U.S. Permanent Representative to the United Nations from 1993 to 1997.

2. Rand Beers served as Deputy Homeland Security Advisor to the President of the United States from 2014 to 2015.

3. John B. Bellinger, III served as the Legal Adviser for the U.S. Department of State from 2005 to 2009. He previously served as Senior Associate Counsel to the President and Legal Adviser to the National Security Council from 2001 to 2005.

4. Daniel Benjamin served as Ambassador-at-Large for Counterterrorism at the U.S. Department of State from 2009 to 2012.

5. Antony Blinken served as Deputy Secretary of State from 2015 to January 20, 2017. He previously served as Deputy National Security Advisor to the President of the United States from 2013 to 2015.

6. John O. Brennan served as Director of the Central Intelligence Agency from 2013 to 2017. He previously served as Deputy National Security Advisor for Homeland Security and Counterterrorism and Assistant to the President from 2009 to 2013.

7. R. Nicholas Burns served as Under Secretary of State for Political Affairs from 2005 to 2008. He previously served as U.S. Ambassador to NATO and as U.S. Ambassador to Greece.

8. William J. Burns served as Deputy Secretary of State from 2011 to 2014. He previously served as Under Secretary of State for Political Affairs from 2008 to 2011, as U.S. Ambassador to Russia from 2005 to 2008, as Assistant Secretary of State for Near Eastern Affairs from 2001 to 2005, and as U.S. Ambassador to Jordan from 1998 to 2001.

9. James Clapper served as U.S. Director of National Intelligence from 2010 to January 20, 2017. He previously served as Undersecretary of Defense for Intelligence from 2007 to 2010, and before that, Director of the National Geospatial-Intelligence Agency from 2001 to 2006, and Director of the Defense Intelligence Agency from 1991 to 1995.

10. David S. Cohen served as Under Secretary of the Treasury for Terrorism and Financial Intelligence from 2011 to 2015 and as Deputy Director of the Central Intelligence Agency from 2015 to January 20, 2017.

11. Bathsheba N. Crocker served as Assistant Secretary of State for International Organization Affairs from 2014 to 2017.

12. Ryan Crocker served as U.S. Ambassador to Afghanistan from 2011 to 2012, as U.S. Ambassador to Iraq from 2007 to 2009, as U.S. Ambassador to Pakistan from 2004 to 2007, as U.S. Ambassador to Syria from 1998 to 2001, as U.S. Ambassador to Kuwait from 1994 to 1997, and U.S. Ambassador to Lebanon from 1990 to 1993.

13. Jen Easterly served as Special Assistant to the President and Senior Director for Counterterrorism from October 2013 to December 2016.

14. Daniel Feldman served as U.S. Special Representative for Afghanistan and Pakistan from 2014 to 2015, Deputy U.S. Special Representative for Afghanistan and Pakistan from 2009 to 2014, and previously Director for Multilateral and Humanitarian Affairs at the National Security Council.

15. Jonathan Finer served as Chief of Staff to the Secretary of State from 2015 until January 20, 2017, and Director of the Policy Planning Staff at the U.S. Department of State from 2016 to January 20, 2017.

16. Michèle Flournoy served as Under Secretary of Defense for Policy from 2009 to 2013.

17. Robert S. Ford served as U.S. Ambassador to Syria from 2011 to 2014, as Deputy Ambassador to Iraq from 2009 to 2010, and as U.S. Ambassador to Algeria from 2006 to 2008.

18. Josh Geltzer served as Senior Director for Counterterrorism at the National Security Council from 2015 to 2017. Previously, he served as Deputy Legal Advisor to the National Security Council and as Counsel to the Assistant Attorney General for National Security at the Department of Justice.

19. Suzy George served as Deputy Assistant to the President and Chief of Staff and Executive Secretary to the National Security Council from 2014 to 2017.

20. Phil Gordon served as Special Assistant to the President and White House Coordinator for the Middle East, North Africa and the Gulf from 2013 to 2015, and Assistant Secretary of State for European and Eurasian Affairs from 2009 to 2013.

21. Chuck Hagel served as Secretary of Defense from 2013 to 2015, and previously served as Co-Chair of the President's Intelligence Advisory Board. From 1997 to 2009, he served as U.S. Senator for Nebraska, and as a senior member of the Senate Foreign Relations and Intelligence Committees.

22. Avril D. Haines served as Deputy National Security Advisor to the President of the United States from 2015 to January 20, 2017. From 2013 to 2015, she served as Deputy Director of the Central Intelligence Agency.

23. Luke Hartig served as Senior Director for Counterterrorism at the National Security Council from 2014 to 2016.

24. General (ret.) Michael V. Hayden, USAF, served as Director of the Central Intelligence Agency from 2006 to 2009. From 1995 to 2005, he served as Director of the National Security Agency.

25. Heather A. Higginbottom served as Deputy Secretary of State for Management and Re-sources from 2013 to 2017.

26. Christopher R. Hill served as Assistant Secretary of State for East Asian and Pacific Affairs from 2005 to 2009. He also served as U.S. Ambassador to Macedonia, Poland, the Republic of Korea, and Iraq.

27. John F. Kerry served as Secretary of State from 2013 to January 20, 2017.

28. Prem Kumar served as Senior Director for the Middle East and North Africa on the National Security Council staff of the White House from 2013 to 2015.

29. John E. McLaughlin served as Deputy Director of the Central Intelligence Agency from 2000 to 2004 and as Acting Director in 2004. His duties included briefing President-elect Bill Clinton and President George W. Bush.

30. Lisa O. Monaco served as Assistant to the President for Homeland Security and Counterterrorism and Deputy National Security Advisor from 2013 to January 20, 2017.

31. Cameron P. Munter served as U.S. Ambassador to Pakistan from 2009 to 2012 and to Serbia from 2007 to 2009.

32. James C. O’Brien served as Special Presidential Envoy for Hostage Affairs from 2015 to January 20, 2017. He served in the U.S. Department of State from 1989 to 2001, including as Principal Deputy Director of Policy Planning and as Special Presidential Envoy for the Balkans.

33. Matthew G. Olsen served as Director of the National Counterterrorism Center from 2011 to 2014.

34. Leon E. Panetta served as Secretary of Defense from 2011 to 2013. From 2009 to 2011, he served as Director of the Central Intelligence Agency.

35. Anne W. Patterson served as Assistant Secretary of State for Near Eastern Affairs from 2013 to 2017. Previously, she served as the U.S. Ambassador to Egypt from 2011 to 2013, to Pakistan from 2007 to 2010, to Colombia from 2000 to 2003, and to El Salvador from 1997 to 2000.

36. Jeffrey Prescott served as Special Assistant to the President and Senior Director for Iran, Iraq, Syria and the Gulf States from 2015 to 2017.

37. Samantha J. Power served as U.S. Permanent Representative to the United Nations from 2013 to January 20, 2017. From 2009 to 2013, she served as Senior Director for Multilateral and Human Rights on the National Security Council.

38. Susan E. Rice served as National Security Advisor from 2013 to January 20, 2017. From 2009 to 2013, she served as U.S. Permanent Representative to the United Nations from 2009 to 2013.

39. Anne C. Richard served as Assistant Secretary of State for Population, Refugees and Migration from 2012 to January 20, 2017.

40. Kori Schake served as the Deputy Director for Policy Planning at the U.S. Department of State from December 2007 to May 2008. Previously, she was the director for Defense Strategy and Requirements on the National Security Council in President George W. Bush’s first term.

41. Eric P. Schwartz served as Assistant Secretary of State for Population, Refugees and Migration from 2009 to 2011. From 1993 to 2001, he was responsible for refugee and humanitarian issues on the National Security Council, ultimately serving as Special Assistant to the President for National Security Affairs and Senior Director for Multilateral and Humanitarian Affairs.

42. Wendy R. Sherman served as Under Secretary of State for Political Affairs from 2011 to 2015.

43. Vikram Singh served as Deputy Special Representative for Afghanistan and Pakistan from 2010 to 2011 and as Deputy Assistant Secretary of Defense for Southeast Asia from 2012 to 2014.

44. Dana Shell Smith served as U.S. Ambassador to Qatar from 2014 to 2017. Previously, she served as Principal Deputy Assistant Secretary of Public Affairs.

45. Jeffrey H. Smith served as General Counsel of the Central Intelligence Agency from 1995 to 1996. Previously, he served as General Counsel of the Senate Armed Services Committee.

46. James B. Steinberg served as Deputy National Security Adviser from 1996 to 2000 and as Deputy Secretary of State from 2009 to 2011.

47. Linda Thomas-Greenfield served as Assistant Secretary for the Bureau of African Affairs from 2013 to 2017. Previously she served as U.S. Ambassador to Liberia and Deputy Assistant Secretary for the Bureau of Population, Refugee and Migration from 2004 to 2006.

48. William Wechsler served as Deputy Assistant Secretary for Special Operations and Combating Terrorism at the U.S. Department of Defense from 2012 to 2015.

49. Samuel M. Witten served as Principal Deputy Assistant Secretary of State for Population, Refugees, and Migration from 2007 to 2010. From 2001 to 2007, he served as Deputy Legal Adviser at the State Department.

Related Practice Areas
First AmendmentReligious discriminationRace discrimination
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