//  2/4/19  //  In-Depth Analysis

In a previous post, I highlighted some recently confirmed discrepancies, errors, and misrepresentations in the report that the Department of Homeland Security and the Department of Justice prepared in conjunction with the President’s second entry ban.  The order establishing the second entry ban called for the creation of a report. Section 11 of the order read:

Sec. 11. Transparency and Data Collection. (a) To be more transparent with the American people and to implement more effectively policies and practices that serve the national interest, the Secretary of Homeland Security, in consultation with the Attorney General, shall, consistent with applicable law and national security, collect and make publicly available the following information:

(i) information regarding the number of foreign nationals in the United States who have been charged with terrorism-related offenses while in the United States; convicted of terrorism-related offenses while in the United States; or removed from the United States based on terrorism-related activity, affiliation with or provision of material support to a terrorism-related organization, or any other national-security-related reasons;

(ii) information regarding the number of foreign nationals in the United States who have been radicalized after entry into the United States and who have engaged in terrorism-related acts, or who have provided material support to terrorism-related organizations in countries that pose a threat to the United States;


(iii) information regarding the number and types of acts of gender-based violence against women, including so-called “honor killings,” in the United States by foreign nationals; and


(iv) any other information relevant to public safety and security as determined by the Secretary of Homeland Security or the Attorney General, including information on the immigration status of foreign nationals charged with major offenses.

(b) The Secretary of Homeland Security shall release the initial report under subsection (a) of this section within 180 days of the effective date of this order and shall include information for the period from September 11, 2001, until the date of the initial report. Subsequent reports shall be issued every 180 days thereafter and reflect the period since the previous report.

When the report came out, there were immediately concerns about its accuracy.  And we've received confirmation that there were, in fact, inaccuracies in the report through some litigation involving members of Protect Democracy and Lawfare, among other organizations.  Benjamin Wittes highlighted the discrepancies and the Department of Justice’s acknowledgment of them in this post (Wittes and others filed a lawsuit under the Quality Act to have the report corrected):


  • On our concern that the inclusion in the report of foreign-born but naturalized U.S. citizens was wildly distortive, the department now says that, “[I]n future reports, the Department can strive to minimize the potential for misinterpretation through, to the extent possible, more thorough explanation of the context for information and clearer differentiation of the information presented, and by noting when information presented goes beyond the specific dictates of Section 11. The Department will proceed accordingly in future Section 11 reports.”
  • On our concern that the department includes people brought to the U.S. for prosecution, the department writes that it “appreciates the suggestion that disaggregating information about foreign nationals brought to the United States for prosecution for terrorism-related offenses committed outside the United States, and providing a more thorough discussion of the limitations of the data presented, would further promote the perception of objectivity in the presentation of information.” It says it will “work with DHS [the Department of Homeland Security] in future reports” to do so.
  • On our concern that the eight “illustrative examples” are cherry-picked and not representative, the department now “acknowledges that a focus on eight seemingly similar ‘illustrative examples’ from a list of more than 400 convictions would cause some readers of the Report to question its objectivity.” It agrees that “the objectivity and transparency of future Reports could be enhanced by releasing underlying data . . . and could provide readers with more complete information from which to draw their own conclusions.” And it says that if examples are included in future reports, it will “work with DHS” to make sure they are “more varied” and will make clear they are “not intended to be representative of all cases.”
  • On our concerns about gross distortions of gender-based violence, while dismissing the matter as “mere editorial error,” the department writes that it “appreciates being made aware of such errors so that they will not be repeated.”

In my previous post, I highlighted why evidence like this confirms that courts can and should take into account facts about the world around them in assessing whether litigants have established that things are not proceeding according to normal processes in the executive branch (at least with respect to particular policies).  


In this post, I want to make two additional points about the report:


The first is about the stain on the Department of Justice, and the lawyers involved in this administration’s policies. Wittes seems to take DOJ’s response as something of a positive.  He writes:


On several points, the department pretty explicitly ate a well-deserved dish of crow…. In short, the department’s position appears to be that it acknowledges error and promises not to make such errors again in the future; it just doesn’t acknowledge that the errors are bad enough to warrant correction…. Whatevs, guys. Because at this point, from my vantage point, the record is quite clear: The president of the United States told a frank falsehood to a joint session of Congress, citing Justice Department data that do not exist in order to do so. He did this despite warnings from career FBI and Justice Department officials that the real data could not support such statements. And the Justice Department, a year later, released a report that—while stopping short of the president’s outright falsehoods—was designed to be as suggestive of them as possible; while the department will not retract this report, it also will not defend it, and it has committed itself, as I read its letter, to not repeating its error in this tawdry episode.

I’m less sanguine about DOJ’s response than Wittes appears to be.  It is true that DOJ “has committed itself … to not repeating its error” [of grossly misrepresenting immigrants’ connections to terrorism and crime and thus stoking xenophobia] in the future.


But from DOJ’s perspective, the result in this litigation is not a loss.  It is a win--DOJ is not amending the report, nor is it being made to do so.  It is, instead, refusing to do so. That is, they might have enough integrity to barely and grudgingly characterize the gross misrepresentations in the report as not entirely accurate.  But they don’t have enough integrity to correct them. It's just another, recent confirmation that when the rubber hits the road, DOJ apparently views its job as whitewashing this administration’s xenophobia and attempting to justify it (or to try and make it into passably legal policies).  They did that in the process that led to the various entry bans. They did this in preparing this report. And they are doing it again in refusing to actually correct it.


A recent Washington Post op-ed underscored this point; the author, a former lawyer in the Office of Legal Counsel, argued that lawyers in the administration sought to craft versions of what are, at bottom, policies rooted in baseless xenophobic assertions, so that the policies could withstand judicial scrutiny.  


The second point is about the continuing parallels between the entry ban case and Korematsu. (The Yale Law Journal Forum ran a series of essays related to this issue; I'd definitely recommend reading them all.)

At the end of last term, I wrote a post in The Regulatory Review about how Trump v. Hawaii’s efforts to distinguish Korematsu epitomized a method by which discrimination is legitimized--what Reva Siegel has called “preservation through transformation.”  


I wrote:


Professor Reva Siegel coined the phrase preservation-through-transformation” to describe how the Court goes out of its way to reject certain forms of discrimination while legitimating other forms of discrimination, and reinforcing them in the process. The Court will often reject an “older” form of discrimination while distinguishing “newer” forms of discrimination that are at work in the present day. A natural human tendency is to rationalize the way things are, and that can involve insisting that we, as a present-day people, are better than our predecessors. The end result of this process is, as Siegel observed, to reinforce status-based hierarchies by shifting their forms.

And I applied that insight to Trump v. Hawaii’s treatment of Korematsu v. United States:

[E]ven if the [majority’s] distinction [with Korematsu v. United States] was [accurate], and the text of the internment order in Korematsu said something about race and the text of the entry ban proclamation said nothing about religion, that would be beside the point. What was morally and legally abhorrent about the internment order in Korematsu was its xenophobia and racism. Regardless of whether the internment order used magic words, the stench of racism was all over the order and how government officials justified it.

That is, and always has been, the flaw with the entry ban proclamation: It represents a way to fulfill, even in a small and incomplete way, the President’s bigoted promise for a shutdown on Muslims entering the United States. The proclamation may not say so explicitly, or implement that promise fully or even effectively, but that is what the proclamation is, and how it is understood—both by groups the order stigmatizes and by people who wanted to stigmatize them. And they are right to do so, since there would be no proclamation without the campaign promise.

So, yes, the Court denounced Korematsu. But the Court did so in the way it often deals with discrimination—by rejecting one form of it while simultaneously legitimating another.

DOJ’s publication of a grossly misleading--and erroneous--report pursuant to the President’s entry ban order makes the parallels between Trump v. Hawaii and Korematsu even more stark, and further underscores how the Court merely legitimated a different form of the same moral wrong that it purported to reject. In Korematsu, too, the government issued a report steeped in falsities and xenophobic over generalizations and used it to justify exclusionary policies.  The report in Korematsu contained blatant falsehoods about shore-to-ship communications between the West Coast and Japanese submarines.  And it included grossly misleading information too, such as the number of Americans of Japanese descent who refused to swear loyalty oaths to the government (that sought to intern them), or the number who sought repatriation in Japan (again when the United States was seeking to intern them).

My guess is that the parallels between the two cases will only grow stronger over time.  Indeed, a recent op-ed by Betsy Fisher and Samantha Power made the parallels even more clear.  Their op-ed surveyed evidence that the "waiver" process for the entry ban is a sham (a point that Justice Breyer and Justice Sotomayor raised in their dissents in Trump v. Hawaii, based on evidence that was available at the time).  Specifically, the administration has yet to issue any guidance on the waiver process (even though the order requires it) 15+ months after the order's passage; it has denied 98% of the waiver requested; and it refuses to consider an applicant's home country conditions, or even application materials an applicant provides.  In plain English: The waiver process is a joke--it's just window dressing for the illegitimate, anti-Muslim motives that drove the order.

As we learn more--which we inevitably will, in subsequent administrations, or through subsequent investigations--about the process that led to the entry ban, it will become even more clear that the order was infected by anti-Muslim animus.

The Supreme Court never actually denied that fact.  That is, it didn’t suggest the order was not infected (at least in part) by anti-Muslim animus.  Rather, it upheld the order because, according to the Court, even if the order was infected by anti-Muslim animus, it could be reasonably explained or understood as having some other, legitimate purpose.  (The Court declared: “As a result, we may consider plaintiffs’ extrinsic evidence, but will uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.”).  At the time, that conclusion was wrong, as Justice Sotomayor’s dissent made powerfully clear. But as more time passes, the conclusion will start to seem borderline absurd--the only reasonable way to understand the order is as having the purpose to target and disadvantage Muslims.

During the entry ban litigation, a DOJ lawyer told a federal court (the U.S. Court of Appeals for the Ninth Circuit, if I recall correctly) that “if this was the order in Korematsu, I wouldn’t be standing here.”  Maybe they should look at themselves a little more closely.






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