See you in court: Trump’s travel ban fight may turn out to be his Guantanamo

President Donald Trump has vowed to continue the court battle to preserve his prerogative to limit travel by non-citizens in the way he crafted it in the January 27 Executive Order, aka the travel ban. Similarly Washington state Attorney General Robert Ferguson vowed to “hold him accountable to the Constitution.”

“No one is above the law, not even the President,” Ferguson said.

But the continued court battles, which could take months if not years, do not serve the nation’s national security. By not issuing a new more limited order that replaces the flawed one, the President is undermining his legal argument that there is factual proof that a national security emergency exists.

The longer the “SEE YOU IN COURT” battle drags on, the more likely that Trump’s travel ban becomes his Guantánamo.

SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!

— Donald J. Trump (@realDonaldTrump) February 9, 2017

For George W. Bush’s two terms and extending through the eight years of Barack Obama, the courts tousled with the office of the Commander-in-Chief about the legality of bringing foreigners from the battlefield — eventually known as detainees to avoid calling them prisoners of war — to the U.S. military base in Guantánamo Bay, Cuba.

The drawn-out process was not just a stain on U.S. standing in the world; it was a precedent, and a lesson, in the Framer’s system of checks and balances. Separation of powers won the day, not executive prerogative.

The 9th Circuit Court of Appeals on Thursday made the point.

Boumediene v. Bush, one of series of Guantánamo Supreme Court cases that challenged executive power, was cited in the Trump administration appeal decision: “There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.”

{mosads}The 9th Circuit made other points in the decision: that the impact of the executive order was immediate and widespread, not limited to a hundred-plus cases; that states have standing to show harm; that the cases raises serious allegations on due process claims with regard to nationality and religion, and that the Trump administration has not met its burden of showing likelihood of success on appeal; that the showing of a threat to national security is reviewable by the courts; and, if the government wants to exclude legal permanent residents from its ban, it must be explicit and cannot merely modify the ban by statements by White House counsel.

But a lesson to the president is what happened in Guantánamo, in a series of cases:

• Court action: Rasul v. Bush  After creating a prison for detainees brought in from the Afghan battlefield, the Bush administration decided that it would hold detainees without legal rights that would be afforded under U.S. law. The Supreme Court held that even non-citizens outside the country had rights, in particular, the Constitutional right to habeas corpus, a right of action under both a federal law and the Constitution. That complicated decision was based on the 1903 lease under which the U.S. has a base in Cuba that gave the U.S. “operational sovereignty.”

• Legislative Reaction: The U.S. Congress passed the Detainee Treatment Act of 2005 as part of a Defense Department Authorization Act, giving detainees a Combatant Status Review Tribunal (CRST) hearing, and took away their right to be heard in a U.S. court under a writ of habeas corpus. (It also dealt with means of interrogation.)

• Court action: Hamdan v. Rumsfeld The Supreme Court held that the Bush Administration and Donald Rumsfeld as Defense Secretary, did not have the authority under the U.S. Constitution, limiting executive authority, to create the CRSTs.

• Legislative Reaction: Military Commissions Act of 2006, signed by President Bush, authorized trial by military commissions.

• Court action: Boumediene v. Bush Justice Anthony Kennedy — the same Justice who would hear an emergency application from the Trump Department of Justice that arises in Washington state — wrote the majority decision, striking down the Tribunals.

Justice Kennedy wrote: “The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law.”

That brings us to the Trump travel ban challenge. The 9th Circuit on Thursday cited the Guantánamo case: “There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.  See Boumediene v. Bush.”

The Washington State Attorney General, Robert Ferguson said, “The president should withdraw this flawed, rushed and dangerous executive order, which caused chaos across the country. If he refuses, I will continue our work to hold him accountable to the Constitution.”

Wash AG Bob Ferguson “It’s not the loudest voice that prevails in the courtroom. It’s the Constitution” #NoBanNoWall https://t.co/AErX3rGKtp

— Robert Murphy (@robertemilem) February 9, 2017

President Trump may see us in court, but the 9th Circuit appeal delivered a lesson in checks and balances. That primer in Constitutional law is one that justices on the current Supreme Court know well and one that would be well heeded by the current president when he considers writing a new executive order that corrects the current one.

Pamela Falk, former staff director of a House of Representatives Subcommittee, is CBS News TV & Radio Foreign Affairs Analyst & U.N. Resident Correspondent and holds a J.D. from Columbia School of Law. She can be reached at @PamelaFalk

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