BOB GARFIELD: From WNYC in New York, this is On the Media. I’m Bob Garfield.
BROOKE GLADSTONE: And I’m Brooke Gladstone.
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When the executive order, often called the Muslim ban, was signed by Donald Trump on January 27th, he proudly and loudly proclaimed –
PRESIDENT TRUMP: - new vetting measures to keep radical Islamic terrorists out of the United States of America. We don’t want ‘em here.
BROOKE GLADSTONE: A surprise announcement, complete with lights, camera and action. But the action swiftly occurred in precincts he couldn’t control.
MALE CORRESPONDENT: Breaking news, travel ban backlash. Protests…
FEMALE CORRESPONDENT: President Trump’s executive order went into effect overnight, leaving as many as 200 travelers stranded.
MALE CORRESPONDENT: Thousands of demonstrators are at Philadelphia International Airport protesting –
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BROOKE GLADSTONE: The ban was challenged in court, multiple federal judges deemed it unconstitutional and there the matter rested for a while. This past Monday, Trump signed a new ban, relaxing restrictions for legal residents and removing Iraq from the list of banned countries.
WOLF BLITZER, CNN ANCHOR: And unlike the dramatic rollout of the first version this executive order was signed quietly out of the media spotlight.
FEMALE CORRESPONDENT: The president has not taken questions. The White House didn’t have an on-camera briefing. You can see just undeniably a different tone.
BROOKE GLADSTONE: And the response has been similarly subdued.
FEMALE CORRESPONDENT: Trump’s travel ban has now been released with much less chaos than the last one.
FEMALE CORRESPONDENT: No visible signs of outrage here at JFK’s Terminal 4, at least not yet.
BROOKE GLADSTONE: No longer a Muslim ban, this was a travel ban. And yet, in many respects, the second ban is likely to accomplish the same goals as the first, the very goals that nettled the courts. Dahlia Lithwick writes about the courts and the law for Slate and hosts the Amicus podcast. Dahlia, welcome back to OTM.
DAHLIA LITHWICK: Hi there, Brooke.
BROOKE GLADSTONE: So let’s start with the optics. Trump didn’t make a public appearance to sign the executive order. Instead, it was Homeland Security Secretary John Kelly, Secretary of State Rex Tillerson and Attorney General Jeff Sessions that cut the ribbon, so to speak. But there were other tweaks to the visuals, right?
DAHLIA LITHWICK: There were a couple of tweaks and all of them, I think, were in the vein of appearing not crazy -
- I think is the technical term, [LAUGHS] after the spectacular dumpster fire that was the first rollout. It's not an accident that you had three agency chiefs because last time there was a huge question about whether the agencies even knew what was going on. So it was very much like, we’re all on the same page, trust us here, boom, wow. I think the media is like, hey, look, that went fairly well. There aren't people being seized at airports and separated from their children this time.
BROOKE GLADSTONE: It isn’t gonna be implemented for at least a few days, so people can change their travel plans and won't be stuck at the airport waiting for the ACLU to bail them out.
DAHLIA LITHWICK: That's right. You’re not going to have people who got on the airplane in Djibouti [LAUGHS] and got off the airplane and were told, oh, we live in a different universe. This doesn't go into effect until March 16th, to make sure there isn’t gonna be that level of mayhem because I think that mayhem really, really hurt the administration, both in terms of optics and, I think, later on in the courts.
So you’re not gonna have illegal permanent residents, you're not going to have people who have already been vetted for two years and are holding visas who are now gonna be shipped back. And I think the best way to think about the new 2.0 travel ban is to realize that it was really kind of reverse engineered. This was jerry-rigged in order to satisfy the questions that the courts had raised in the over one dozen lawsuits after the first ban.
BROOKE GLADSTONE: Is this new executive order any less of a Muslim ban than the first one was?
DAHLIA LITHWICK: If you only look at the four corners of the order, they have taken out the things that were really, truly constitutionally quite scary. Not only were we only targeting majority Muslim states but we were going to give some kind of preference to disfavored minorities in those countries. It looked exactly like what Trump said it was [LAUGHS], which is we’re going to protect Christian minorities in Muslim countries, and that was vastly problematic. That stuff is out. If you just look at the paper itself, it doesn't look like an overt Muslim ban.
So then that raises this really interesting question, Brooke, which is, how much are judges going to be satisfied with instructions to just look at the four corners of this ban? There are a lot of judges who looked at the earlier ban and said, we’re not going to close our eyes and pretend we don't know what animated this. And I should note that Hawaii was the first state this week to file litigation over the second ban, hoping that judges are not mollified. And in Hawaii what they're saying in their pleading is, old wine, new bottle, please, judges, look at it for what it is.
BROOKE GLADSTONE: Well, let's go over the legal problems with the first executive order. They couldn't find a clear connection between the seven countries - now six, since Iraq's been taken off the list - they couldn't find a connection between those countries and domestic terrorism, which was the target of the ban.
DAHLIA LITHWICK: In my view, that's the big lingering problem. You had Judge Leonie Brinkema in the Eastern District of Virginia saying, I cannot find a scintilla of evidence that this ban makes us safer from the kind of terrorism that they’re purporting to make us safer from. And in both of these cases you had the judges just imploring the lawyers for the government, show us evidence why this ban, why target these seven countries? And there was just crickets. [?]
And so, now you have statements that overtly say, oh, no, no, we have 300 persons who entered the US as refugees that are now the subjects of counterterrorism investigations by the FBI. We can assert that this ban will make us safer from people like that, but we don't know who these 300 people are. We don't know that they entered from these six countries. We don't even know what it means to be the, quote, "subject of a counterterrorism investigation.” It may mean they’re just being looked at.
BROOKE GLADSTONE: You wrote that the text of the executive order attempts to go around these issues by citing evidence for the link between these countries and terrorism, and the cases just don't do it.
DAHLIA LITHWICK: Right. The two specific examples, one is a case of, quote, “two Iraqi nationals” admitted to the United States as refugees in 2009. That is the Bowling Green massacre incident.
BROOKE GLADSTONE: Mm-hmm.
DAHLIA LITHWICK: And that doesn’t prove any of the things the administration [LAUGHS] wants to prove because that was not an attack on American soil; they were in Iraq at the time. And Iraqis would be exempted under this ban because Iraq is off the list.
And then the second case, this alleged Christmas tree attack, they talk about it as, quote, “a native of Somalia” who’d been brought to the US as a child refugee - absolutely makes the point that people who come here when they’re two and three years old and then over a span of 20 years become radicalized in the US, those are not people that this ban can keep out. We can’t know who those people are.
BROOKE GLADSTONE: This was somebody from Somalia who’d come here as a toddler who, in Portland, Oregon in 2010, tried to detonate a bomb at a Christmas tree lighting. Some think that it was kind of a sting because undercover agents posing as Al Qaeda supplied ‘em with a fake bomb.
DAHLIA LITHWICK: We have DHS documents that were leaked last week that suggest that overwhelmingly the kinds of people that we're worried about are people that we can't keep out this way.
BROOKE GLADSTONE: You know, there has been a tendency for courts to generally defer to the president, but Trump has been so hostile to the courts, you think that the courts reviewing this case will be less deferential?
DAHLIA LITHWICK: Courts give massive deference to the Executive Branch, particularly on, you know, matters of national security, but the playing field is a little funky this time because we've had such overt hostility, right down to the threats against the 9th Circuit judges, in calling them “so-called judges” and saying, when the terror attack comes you put it on them. When the president himself starts flinging insults, you tend to see judges really not just fear for their life and safety, which is a big part of this, but really brace themselves against attacks on judicial independence, judicial legitimacy, and they push back hard.
We may see judges who might be apt to defer to the president, particularly on these national security matters, they may be apt to say, you know what, [LAUGHS] not this president, not this time.
BROOKE GLADSTONE: So we’re not seeing the magnitude of protests we saw the last time. We’re not seeing as much coverage. If the fate of this executive order is in the hands of the courts does it matter how much the public or even the media react?
DAHLIA LITHWICK: I interviewed Mark Herring who is Virginia's attorney general, and I asked him a version of your question: Does it matter to life-tenured Article III judges? And he said that he felt the public outcry, showing up at airports, lawyers working for free around-the-clock made a massive difference because, again, if I'm right and the Judicial Branch is by design the weakest branch, they need to be bolstered by public outcry. They need to see that they’re on the right side of history. And we saw that with the gay marriage litigation. We’ve seen that time and time again, that it's incredibly important to remind judges that we care and that their legitimacy is not in question.
Steve Bannon has said, oh, these protesters are gonna wear themselves out, and I think that's the aspiration, is pass a less insane ban, get less media coverage, get vastly reduced blowback and hope that the judges think, eh, this isn’t the hill I want to die on. So it is a really, really good question about whether, in the absence of the kind of public outcry we saw last month, judges are going to feel quite as emboldened to push back the way they pushed back on round one.
BROOKE GLADSTONE: Dahlia, thank you so much.
DAHLIA LITHWICK: Oh, it’s a pleasure.
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BROOKE GLADSTONE: Dahlia Lithwick writes about the courts and the law for Slate and hosts the Amicus podcast.
BOB GARFIELD: Coming up, the evolution of the EPA in the public eye.