State of Hawaii v. Trump

Filing 336

MOTION for Leave to File Amici Curiae Brief Justin B. Cox appearing for Amicus Parties HIAS, International Refugee Assistance Project (Attachments: #1 Exhibit A - Proposed Brief, #2 Exhibit Declaration of Mark Hetfield, President and CEO of HIAS, Inc, #3 Exhibit Supplemental Declaration of Mark Hetfield, President and CEO of HIAS, Inc, #4 Exhibit Declaration of Rebecca Heller, Director of the International Refugee Assistance Project, #5 Exhibit Declaration of General John R. Allen, #6 Exhibit Declaration of (SEALED), #7 Exhibit Declaration of Allen R. Vaught, #8 Proposed Order, #9 Certificate of Service)(Cox, Justin) Modified by (afc) on 7/11/2017: Per direction of the Chambers of Judge Derrick K. Watson: - VIEWING RESTRICTED -

EXHIBIT D

DECLARATION OF GENERAL JOHN R. ALLEN
I, John R. Allen, pursuant to 28 U.S.C. § 1746, declare as follows:
1. I am a retired U.S. Marine Corps four-star general and former commander of the
International Security Assistance Force (ISAF) in Afghanistan. I am currently a
senior fellow and co-director of the Center for 21 st Century Security and Intelligence
at the Brookings Institute.
2. Prior to joining the Brookings Institute, I served as the Special Presidential Envoy for
the Global Coalition to Counter ISIL. I served in the military for nearly 38 years in a
variety of positions in the Marine Corps and the Joint Force. I commanded at every
level in the Marine Corps through the Marine Expeditionary Brigade. I served as the
G-3 operations officer of the 2nd Marine Division. I was the aide de camp and military
secretary to the 31 st commandant of the Marine Corps.
3. As the commander of the NATO ISAF and United States Forces in Afghanistan from
July 2011 to February 2013, I commanded the 150,000 U.S. and NATO forces in
Afghanistan. During this time, we recovered the 33,000 U.S. surge forces, moved the
Afghan National Security Forces into the lead for combat operations, and pivoted
NATO forces from being a conventional combat force into an advisory command.
4. Prior to my time in Afghanistan I served in Iraq from 2006-2008. I served as Deputy
Commanding General, II Marine Expeditionary Force and Commanding General, 2 nd
Marine Expeditionary Brigade, deploying to Iraq for Operation Iraqi Freedom and
serving as the Deputy Commanding General of Multi-National Forces West and II
MEF (Forward) in Al Anbar Province, Iraq. As Deputy Commanding General, I
worked closely with and relied heavily on our Iraqi allies.
5. The U.S . military's Iraqi employees, contractors, and sub-contractors have close
relationships with U.S. entities and were essential to U.S . military operations in Iraq.
All military operations depend on robust and trustworthy relationships with local
partners. In Iraq, the U.S. military worked with Iraqis, either through direct
employment or through contract or subcontract relationships, to provide essential
services, such as translation and interpretation, base support, security, logistics and
maintenance, construction, transportation, or communication support.
6. Local national Iraqis worked closely with U.S. military officials, U.S. contractors, or
U.S. subcontractors to complete projects that were vital to the success of the U.S .
mission. For example, I personally worked closely with Iraqi interpreters to
communicate with local Iraqi leaders in Al Anbar Province in Iraq. The accurate
interpretation and cultural understanding that my interpreter provided was essential to
our work of providing security to the province.
7. The U.S. military required documentation from and vetted all local Iraqi employees,
contractors, sub-contractors, and vendors. Our Iraqi allies were vetted and screened

throughout their employment. The U.S. military's local national employees and
vendors were all required to be vetted through security background checks, which
were implemented to prevent anyone who was a threat to the U.S. mission from being
employed or given access to a U.S . base.
8. The U.S . military used intelligence databases, including information from Iraqi
government records and biometric data such as fingerprints, to both screen and
periodically rescreen all local nationals who would have had access to a U.S. base or
have worked closely with the U.S. mission. Iraqis who had access to bases or
sensitive locations were issued badges required for entry and had to follow strict
security protocols. Iraqis who failed to follow protocols or who were deemed to be a
threat to security were fired and tracked in such databases.
9. Because of their close relationship with the U.S. mission, U.S.-affiliated Iraqis and
their families were and continue to be under an ongoing, serious threat of being killed
by our enemies. Our Iraqi allies risk their lives to support the U.S. mission. The
enemies of the U.S. mission in Iraq have targeted and killed, and will continue to
target and kill, Iraqis who are affiliated with the U.S. through employment as an
interpreter or a contractor.
10. There are significant numbers of enemy actors who target U.S.-affiliated Iraqis. This
most notably includes ISIS, but there are many other militias and groups, of multiple
religious sects, political affiliations, and locations within Iraq, that seek to harm U.S.affiliated Iraqis. Because of the large number of threats, a targeted U.S.-affiliated
Iraqi may not find safety in any part of Iraq.
11. Mere evidence of an U.S. affiliation, such as a badge to enter a U.S. base, can put an
Iraqi at risk. When the enemies are unable to target individuals directly, they will
target family members of U.S .-affiliated Iraqis.
12. U.S. affiliated Iraqis face extreme danger while they wait to be processed. Local
national interpreters and contractors have been killed while working alongside U.S.
forces, and they have also been killed at their homes or while traveling to U.S. bases.
13. As a result of these threats, every extra day our allies must wait for refugee
applications to be processed can literally mean life or death.
14. For the U.S. military, the Priority 2 Direct Access Program for U.S.-Affiliated Iraqi
refugees (P2-DAP) is a promise to help our Iraqi allies that ensures their safety and
their continued support for the U.S. mission. When the Refugee Crisis in Iraq Act,
also known as the Kennedy Act, was signed into law, it was a promise by the United
States to provide protection to our Iraqi allies who were vital to our missions' safety
and success.

15. Specifically, the Refugee Crisis in Iraq Act was signed into law on January 28, 2008.
It committed the United States to a more ambitious set of programs to provide US.affiliated Iraqis facing danger inside Iraq routes of escape to the United States. One
program that the Act established allowed Iraqis with demonstrated work for the U.S.
government (USG), contractors, or U.S .-based NGOs or media organizations, to
directly access the U.S. refugee admissions program. This is known as the Priority 2
Direct Access Program for U.S.-Affiliated Iraqis (P-2 DAP). Today, this is the path
by which wartime allies who served alongside us in Iraq can find safe passage to the
United States.
16. As this program is crucial for the success of our military operations in Iraq and our
future military operations abroad (including Afghanistan), ensuring its vitality is key.
The program is strictly reserved for Iraqis and their family members who have
documented ties with U.S. entities and U.S . citizens from their work supporting the
U.S. mission in Iraq. A detailed background on the specific aspects of this program
will explain the redundancy in having refugees in this program prove they have a de
facto bona fide relationship with a person or entity in the United States and show the
need to e~empt refugees in this program from the refugee freeze.
17. The U.S. government agencies administering P2-DAP verify the documentation and
relationship with the U.S. military or U.S . entity that employed the Iraqi applicant or
family member, as well as the threat in Iraq due to that relationship. The Iraqi P2DAP applicants at issue 1 must have been employed by an entity affiliated with the
U.S . mission in Iraq, or be a family member of an employee; that relationship must be
documented, and that documentation must be submitted to the U.S . government,
reviewed by the Department of State, and verified for an application to proceed.
18. The Refugee Crisis in Iraq Act established "Direct Access" for a designated class of
Iraqi refugees, those who have experienced severe harm, or who believe they are at
risk of serious harm, as result of their association with the USG. In order to qualify,
an applicant must have to have been an employee of the USG, an
interpreter/translator for the USG or Multi-National Forces, an employee of U.S .affiliated organization or entity closely associated with the U.S. mission in Iraq that
has received USG funding, an employee of an U.S. NGO or media organization, or a
spouse, children, parent, sibling of someone with the qualifying work.
19. In order to apply to the program, applicants must email the International Organization
for Migration (IOM), which operates aspects of the program for the Department of
State, with their basic biographic data and copies of documents related to their U.S.1

The Iraqi P2-DAP program also includes Iraqis with a U.S. affiliation based on a family
member in the United States who has filed and received approval of an I-130 immigration
petition on their behalf. The administration has indicated that all of those applicants will
be considered to have close family relationships and therefore will not be subject to the
refugee ban. The discussion of "Iraqi P2-DAP applicants" in this declaration is therefore
limited to Iraqis who were employed by U.S .-affiliated entities and their family.

affiliated work, including but not limited to their badges, letters of recommendation,
and contracts that prove USG funding. In addition, applicants are required to have a
point of contact at their qualifying employer verify the applicant's employment with
the company.
20. IOM collects and reviews the information. The Department of State reviews and
determines whether the U.S. affiliation has been independently verified. After
verifying that applicants have qualifying ties to the USG and its mission in Iraq, IOM
schedules applicants for a pre-screening interview to further assess the applicants'
eligibility for the program.
21. Once IOM decides that the basic requirements appear to be met, applicants interview
with the Department of Homeland security personnel, to further demonstrate that they
meet the U.S refugee definition in addition to providing additional evidence that they
are a member of the designated P-2 population.
22. This means that, by definition, any Iraqi refugee with a pending application in the
Iraqi DAP program has already been adjudicated by the United States to have a
concrete, bona fide and documented relationship with a U.S. entity.
23. Requiring Iraqi P-2 DAP applicants to again prove their previously verified bona fide
relationship needlessly and senselessly delays the process, risks the deaths of our
allies and their families, and harms the U.S. military's reputation and operations
overseas. I am deeply concerned by the U.S. government's interpretation of the
Supreme Court decision, as it will unnecessarily delay processing and may shut down
the entire program. These delays and shutdowns have life threatening impacts on our
allies who already risked their lives to advance our mission.
24. Iraqi P2-DAP applicants must have a bona fide relationship with a U.S. entity based
on their or a family member's employment. That relationship was independently
verified in order to allow them access to apply for P2-DAP and again, in-person,
during the refugee application process. To put these applications on hold pending
further verification of a bona fide relationship is to put our allies and their families
needlessly and senselessly in harm's way.
25 . Military operations depend on robust and trustworthy relationships with local
partners. If the United States wishes to continue achieving success in current and
future operations overseas, it must protect those who help enable that success. U.S .
partners in other conflict zones, including Afghanistan (where thousands of U.S.
troops are currently deployed), are watching to see how the United States treats its
networks in Iraq. Maintaining the promises made to those Iraqis who served with us
is not only principled but will improve our military's effectiveness in other regions; it
will instill confidence and loyalties where local supporters are needed. The
effectiveness of future missions depends on the United States' willingness and ability
to safeguard those individuals, and their families, who risk their lives in support of
U.S. missions.

26. Military service instills in a person certain values: Loyalty. Duty. Honor. Integrity.
These values apply universally; to each other, to our nation, and also to all those who
stood by our sides when we needed their assistance. Many of us can point to a
moment when one of our foreign allies saved our lives - often by taking up arms
against our common enemies. They acted because they believed in America, in our
mission, and in the promise that was given. We should keep that promise, and among
the ways we do this is to continue the P-2 DAP program for those Iraqi allies.
I hereby declare under penalty of perjury that the foregoing is true and correct.