International Refugee Assistance Project et al v. Trump et al

Filing 102

MOTION for Leave to File Amici Curiae Brief in Support of Plaintiffs' Motion for a Temporary Restraining Order by Interfaith Coalition (Attachments: # 1 Proposed Amici Curiae Brief in Support of Plaintiffs' Motion for a Temporary Restraining Order, # 2 Exhibit A to Proposed Amici Curiae Brief in Support of Plaintiffs' Motion for a Temporary Restraining Order, # 3 Text of Proposed Order)(Collins, Kevin)

Exhibit 1
Proposed
INTERFAITH COALITION SUPPORTING THE PLAINTIFFS’ MOTION
FOR A TEMPORARY RESTRAINING ORDER BASED ON THE
LANGUAGE OF THE EXECUTIVE ORDER AND THE REPORT OF THE
STATE DEPARTMENT

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
SOUTHERN DIVISION

INTERNATIONAL REFUGEE
ASSISTANCE PROJECT, et al.,
Civil Action No. 8:17-CV-00361TDC

Plaintiffs,
v.
DONALD J. TRUMP, et al.,
Defendants.

INTERFAITH COALITION SUPPORTING THE PLAINTIFFS’ MOTION
FOR A TEMPORARY RESTRAINING ORDER BASED ON THE
LANGUAGE OF THE EXECUTIVE ORDER AND THE REPORT OF THE
STATE DEPARTMENT

Robert D. Fram*
[e-mail]
Alexandra P. Grayner*
[e-mail]
Kathryn Bi*
[e-mail]
COVINGTON
& BURLING LLP
1 Front St.
San Francisco, CA 94111
T: [phone]

Karun Tilak*
[e-mail]
Michael Baker*
[e-mail]
Andrew Guy
[e-mail]
COVINGTON &
BURLING LLP
One City Center
850 Tenth Street, NW
Washington, D.C. 20001
T: + 1 [phone]

Kevin Collins
(Bar No. 13131)
[e-mail]
William Zapf
(Bar No. 28686)
[e-mail]
COVINGTON &
BURLING LLP
One City Center
850 Tenth Street, NW
Washington, D.C. 20001
T: + 1 [phone]

Counsel for Amici Curiae
*Pro Hac Vice pending
i

TABLE OF CONTENTS
INTEREST OF AMICI CURIAE ............................................................................. 1
INTRODUCTION .................................................................................................... 4
ARGUMENT ............................................................................................................ 6
I.

The Establishment Clause Forbids National Security Laws That
Selectively Burden One Religion. ................................................................ 6
A.
B.

II.

The Establishment Clause Bars Even Facially Neutral Laws
From Burdening One Religion and Not Another............................ 6
The Establishment Clause Applies with Full Force in the
Immigration and National Security Context ................................... 7

The Executive Order Selectively Burdens Muslim-Majority
Countries While Exempting Comparable Christian-Majority
Countries ....................................................................................................... 9
A.

Executive Order’s Selection Criteria and its Reliance on the
Report .................................................................................................. 9
1.
2.

B.

Requirements of Section 1(d) .................................................... 9
Section 1(e) and the Report...................................................... 12

Per the Report, Venezuela and the Philippines Satisfy the
Criteria of Section 1(d) .................................................................... 13
1.
2.

C.

The Application of the Section 1(d) Factors to the
Report’s Allegations Regarding Venezuela............................. 14
The Application of the Section 1(d) Factors to the
Report’s Allegations Regarding the Philippines...................... 15

Per the Report, Venezuela and the Philippines Present a
Greater Section 1(d) Risk than Does Sudan .................................. 18
1.

Basis for Sudan’s Inclusion ..................................................... 19

i

2.

III.

A Comparison of the Report’s Account of the Three
Nations Confirms that the Executive Order Violates the
Establishment Clause ............................................................... 20

In Light of This Selective Burden Imposed Only on MuslimMajority Nations, the Court Should Look to the Statements of the
Drafters to Determine Its Purpose. ........................................................... 22

CONCLUSION...................................................................................................... 24

ii

TABLE OF AUTHORITIES
Cases
Aziz v. Trump, No. 1:17-cv-116, 2017 WL 580855 (E.D. Va. Feb. 13, 2017) ....9, 23
Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687 (1994) ......6, 23
Boumediene v. Bush, 553 U.S. 723 (2008) ................................................................8
Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993) ................6
City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002) .........................12
Everson v. Bd. of Educ., 330 U.S. 1 (1947) ...............................................................6
Hamdi v. Rumsfeld, 542 U.S. 507 (2004) ..................................................................8
INS v. Chadha, 462 U.S. 919 (1983) .........................................................................7
Larson v. Valente, 456 U.S. 228 (1982) ......................................................... 6, 7, 23
McCreary Cty. v. ACLU, 545 U.S. 844 (2005)........................................................23
Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000) .........................................23
United States v. Robel, 389 U.S. 258 (1967) .............................................................8
Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017).........................................8, 23
Zadvydas v. Davis, 533 U.S. 678 (2001) ...................................................................7
Statutes
8 U.S.C. § 1182(a)(7)(B)(i)(II) ................................................................................10
8 U.S.C. § 1187(a) ..................................................................................................10

Other Authorities
Protecting the Nation from Foreign Terrorist Entry Into the United States, Exec.
Order No. 13,769, 82 Fed. Reg. 8977 (Jan. 27, 2017)……………………...……8
Protecting the Nation from Foreign Terrorist Entry into the United States, Exec.
Order No. 13,780, 82 Fed. Reg. 13209 (Mar. 6, 2017) ................................ passim
U.S. Dep’t of State, Bureau of Counterterrorism and Countering Violent
Extremism, Country Reports on Terrorism 2015 (June 2016) ..................... passim

i

INTEREST OF AMICI CURIAE INTERFAITH COALITION
Amici are a coalition of individuals and organizations of diverse religions.
Although they profess different faiths, they are united in the belief that religious
tolerance is critical to the safety and wellbeing of our local and national
community. The Executive Order, which by its plain language, structure, and
intent, clearly discriminates on the basis of religion, is anathema to this core tenet
that all members of our coalition share.
Amici 1 are:
• Congregation B’nai Jeshurun, a nonaffiliated Jewish synagogue in New
York City.
• The Right Reverend Andrew Dietsche, the Episcopal Bishop of New
York. The Episcopal Diocese of New York is made up of over 200
congregations encompassing Manhattan, the Bronx, and Staten Island in
New York City, and the counties of Dutchess, Orange, Putnam,
Rockland, Sullivan, Ulster and Westchester in the state of New York.
• The Right Reverend Allen K. Shin, Bishop Suffragan of the Episcopal
Diocese of New York.
• The Right Reverend Mary D. Glasspool, Bishop Assistant of the
Episcopal Diocese of New York.
• Imam Abdul Malik Mujahid, a Muslim Imam actively involved in
interfaith work. Imam Mujahid has served as Chairman of the Parliament
of the World’s Religions and on the Council of Foreign Relations’
1

Unless stated otherwise, amici are acting on their own behalf, and not on behalf
of any organizations with which they are associated. No party’s counsel authored
this brief in whole or in part, and no person other than the undersigned counsel
contributed financially to its preparation or submission.
1

Independent Task Force on Civil Liberties and National Security. He is
the founder of Sound Vision, an Islamic charity.
• The Sikh Coalition, which was founded on September 11, 2001 to, inter
alia, ensure religious liberty for all people.
• The Right Reverend Lawrence C. Provenzano, the Episcopal Bishop of
Long Island. The Episcopal Diocese of Long Island has ecclesiastical
jurisdiction over Brooklyn, Queens, Nassau, and Suffolk Counties in the
state of New York.
• The Muslim Public Affairs Council, a public service agency working for
the civil rights of American Muslims, for the integration of Islam into
American pluralism, and for a positive, constructive relationship between
American Muslims and their representatives.
• The Right Reverend Marc Handley Andrus, the Episcopal Bishop of
California. The Episcopal Diocese of California has ecclesiastical
jurisdiction over San Francisco, Alameda, Contra Costa, Marin, and San
Mateo Counties, along with the northernmost portion of Santa Clara
County, in California.
• Rabbi Joy Levitt, the Executive Director of JCC Manhattan.
• Reverend Curtis W. Hart, Editor-in-Chief of the Journal of Religion and
Health and Lecturer in the Departments of Medicine and Psychiatry,
Division of Medical Ethics, at Weill Cornell Medical College.
• Congregation Beit Simchat Torah, a non-affiliated Jewish synagogue in
New York City that serves Jews of all sexual orientations and gender
identities.
• Rabbi Sharon Kleinbaum, the Senior Rabbi of the Congregation Beit
Simchat Torah in New York City.
• Reverend Timothy B. Tutt, Senior Minister at the Westmoreland
Congregational United Church of Christ in Bethesda, Maryland.

2

• Rabbi Joel Mosbacher, the Senior Rabbi of Temple Shaaray Tefila in
New York City.
• Rabbi Frederick Reeves, the Rabbi of the KAM Isaiah Israel
Congregation in Chicago.
• Rabbi Peretz Wolf-Prusan, the Chief Program Officer and a Senior
Educator at Lehrhaus Judaicam, a non-denominational center for adult
Jewish studies in San Francisco.
• Rabbi Noa Kushner, the leader of The Kitchen, a Jewish community
building a spiritually alive generation and a new resonant approach to
religious life in San Francisco.
• Union Theological Seminary, the oldest independent seminary in the
United States. The seminary’s education is rooted in Christian traditions
but instructed by other faiths.
• Rabbi John Rosove, the Senior Rabbi of the Temple Israel of Hollywood
in Los Angeles.
• United Methodist Women, the largest denominational faith organization
for women with approximately 800,000 members whose mission is
fostering spiritual growth, developing leaders and advocating for justice.
• Rabbi James Ponet, the emeritus Howard M. Holtzmann Jewish Chaplain
at Yale University.
• The Hyde Park & Kenwood Interfaith Council, which, since its founding
in 1911, has strived for the increased efficiency of the spiritual forces of
our community along cooperative lines. The Council’s members agree to
respect the integrity of their different faiths and the right to practice their
beliefs. The Council is dedicated to projects for the betterment of life in
the community and to the struggle for human equality.
• Rabbi Michael Strassfeld, Rabbi Emeritus of the Society for the
Advancement of Judaism, a Manhattan synagogue.

3

INTRODUCTION
Two documents establish the Establishment Clause violation in this case.
The first is the March 6, 2017 Executive Order itself. 2 The second is a Report of
the State Department—the Country Reports on Terrorism 2015 (“the Report”).3
The Executive Order expressly states that the Report largely informs the selection
of the Muslim-majority nations for inclusion under the travel ban.
Taken together, these two documents compel one conclusion: that six
Muslim-majority nations were selectively targeted for the travel ban. This is
demonstrated by the fact that at least two Christian-majority nations, Venezuela
and the Philippines, were not included in the ban. This omission is striking. Per
the Report, these two counties allegedly satisfy the criteria that the Executive
Order purports to apply when determining whether a country should be subject to
the ban. Indeed, a close reading of the Report reveals that Venezuela and the
Philippines allegedly satisfy these criteria by a greater margin than at least one of
the selected Muslim-majority nations: Sudan.

2

Protecting the Nation From Foreign Terrorist Entry Into the United States, Exec.
Order No. 13,780, 82 Fed. Reg. 13209 (Mar. 6, 2017).
3
U.S. Dep’t of State, Bureau of Counterterrorism and Countering Violent
Extremism, Country Reports on Terrorism 2015 (June 2016). Relevant portions of
the Report are attached as Exhibit A. Due to the length of the Report—407
pages—the entire Report was not included in this filing. If the court desires,
counsel can file the entire Report, and it is also available at
https://www.state.gov/documents/organization/258249.pdf.
4

To be clear, Amici do not vouch for the statements in the Report. Amici do
not contend that the Philippines and/or Venezuela should be included in the travel
ban. Nor do they purport to second guess the Administration’s assessment of the
security risk posed by Sudan. Amici merely contend that if the criteria set forth in
the Executive Order are applied fairly, and the factual basis of the Executive
Order’s determination are primarily (if not entirely) those set forth in the Report,
then there is no principled basis for the Executive Order’s “Muslim only” list.
This analysis, by itself, establishes a violation of the Establishment Clause.
At the very least, this selective burdening of one nation over another opens the
door to consideration of the intent of the drafter of the travel ban. In such
circumstances, the Court must carefully scrutinize the statements of President
Trump to determine whether the purpose of the travel ban violates the
Establishment Clause.

5

ARGUMENT
I.

The Establishment Clause Forbids National Security Laws That
Selectively Burden One Religion.
A.

The Establishment Clause Bars Even Facially Neutral Laws From
Burdening One Religion and Not Another.

Under the Establishment Clause, the government cannot selectively impose
a burden on one religion and not others. See Larson v. Valente, 456 U.S. 228, 244
(1982) (“The clearest command of the Establishment Clause is that one religious
denomination cannot be officially preferred over another.”); Everson v. Bd. of
Educ., 330 U.S. 1, 15 (1947) (“Neither [a state nor the Federal Government] can
pass laws which . . . prefer one religion over another.”); cf. Church of the Lukumi
Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 535-36 (1993) (“In our Establishment
Clause cases we have often stated the principle that the First Amendment forbids
an official purpose to disapprove of a particular religion . . . .”).
The government also cannot hide behind facial neutrality and claim that a
law which burdens one religion over another is constitutional simply because it
does not mention religion. The court’s analysis “does not end with the text of the
statute at issue.” Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S.
687, 699 (1994). Rather, a facially-neutral law that imposes arbitrary distinctions
not explained by that law’s alleged purpose, but is instead designed to burden or

6

benefit one religion over another, runs afoul of the First Amendment. See Larson,
456 U.S. at 255.
To root out the true nature of a facially neutral law, courts look to both the
structure and history of the law. In Larson, for example, the Court noted that the
structure of the challenged regulation appeared to create an arbitrary distinction
between religions. Id. at 252. In particular, the law exempted certain religions that
received fifty percent of their contributions from members or affiliated
organizations from a requirement to register with and provide the state with annual
financial reports. Id. at 231–32. In light of this fact, the Court looked to the
legislative history, and found that the drafters had sought to specifically avoid
imposing a burden on the Catholic Church. Id. at 254. After considering the
structure and history of the “fifty percent rule,” the Court concluded that the rule
served no legitimate purpose and violated the Establishment Clause. Id. at 255.
B.

The Establishment Clause Applies with Full Force in the
Immigration and National Security Context

The fact that the Executive Order regulates immigration and purports to rest
on national security grounds does not alter the Establishment Clause analysis.
Although the political branches have considerable authority over immigration, that
power “is subject to important constitutional limitations.” Zadvydas v. Davis, 533
U.S. 678, 695 (2001); see also INS v. Chadha, 462 U.S. 919, 941 (1983) (affirming
courts’ authority to review whether the federal government “has chosen a
7

constitutionally permissible means of implementing” its power to regulate
immigration). The Supreme Court has often reviewed the constitutionality of, and
struck down, legal measures taken to promote national security. See, e.g.,
Boumediene v. Bush, 553 U.S. 723 (2008) (striking down law that stripped federal
courts of jurisdiction to review habeas petitions of enemy combatants detained at
Guantanamo Bay); Hamdi v. Rumsfeld, 542 U.S. 507, 509 (2004) (holding that
enemy combatants held at Guantanamo Bay had the right to challenge the factual
basis of their detention); United States v. Robel, 389 U.S. 258 (1967) (striking
down law making it unlawful for members of Communist organizations to be
employed at defense facilities).
The courts have applied this principle in the context of the circumstances of
this case. After the Trump Administration issued the first version of this Executive
Order, 4 which similarly burdened individuals from seven Muslim-majority
countries (Iran, Iraq, Syria, Libya, Yemen, Sudan, and Somalia), lawsuits were
filed across the country challenging its constitutionality. In addressing these suits,
courts reaffirmed that it is “beyond question that the federal judiciary retains the
authority to adjudicate constitutional challenges to executive action,” Washington
v. Trump, 847 F.3d 1151, 1164 (9th Cir. 2017), and that the Executive Order “must

4

Protecting the Nation from Foreign Terrorist Entry Into the United States, Exec.
Order No. 13,769, 82 Fed. Reg. 8977 (Jan. 27, 2017).
8

still comply with . . . the constraints of the Constitution, including the Bill of
Rights,” Aziz v. Trump, No. 1:17-cv-116, 2017 WL 580855, at *6 (E.D. Va. Feb.
13, 2017).
The same analysis applies to the revised Executive Order, which continues
to burden individuals from six of the seven Muslim-majority countries singled out
in the original Order. Regardless of the immigration and national security
justifications proffered by the Administration, the Court must still adjudicate the
constitutionality of the Order. In doing so, the Court is not bound by the
justifications offered by the government, and should conduct a regular
Establishment Clause analysis. As set forth below, this analysis reveals that the
Executive Order unconstitutionally burdens Muslims.
II.

The Executive Order Selectively Burdens Muslim-Majority Countries
While Exempting Comparable Christian-Majority Countries
A.

Executive Order’s Selection Criteria and its Reliance on the
Report
1.

Requirements of Section 1(d)

Section 1(d) of the Executive Order states that the six Muslim-majority
countries were chosen for the travel ban “because the conditions in these countries
present heightened threats.” Exec. Order No. 13,780, 82 Fed. Reg. at 13210. This
constitutes an evolution in the Administration’s articulation of its approach to the
travel ban.

9

Section 1(b)(i) of the Executive Order notes that the six counties were
among the seven identified in the January 27, 2017 Executive Order 13769, which
relied upon the countries designated under section 217(a)(12) of the INA,
8 U.S.C. § 1187(a)(12). Exec. Order No. 13,780, 82 Fed. Reg. at 13209. That
statutory provision concerned restrictions on eligibility for the Visa Waiver
Program. Pursuant to section 217(a)(12), persons who are citizens of one of these
six countries (or Iraq), or who have visited these countries in the last five years, are
ineligible to participate in the Visa Waiver Program. Instead, if they wish to enter
the United States as nonimmigrant visitors, they must apply for a visa.
See 8 U.S.C. § 1182(a)(7)(B)(i)(II); id. § 1187(a). This enactment did not entail a
blanket travel ban.
Section 1(d) of the revised Executive Order seeks to cure this defect in the
original Executive Order by offering a further justification of the travel ban. The
new Executive Order seeks to justify the travel ban by asserting that that the six
Muslim-majority selected countries “warrant additional scrutiny” when viewed in
light of the following four factors:
[1] Each of these countries is a state sponsor of terrorism,
has been significantly compromised by terrorist
organizations, or contains active conflict zones.
[2] Any of these circumstances diminishes the foreign
government’s willingness or ability to share or validate
important information about individuals seeking to travel
to the United States.
10

[3] Moreover, the significant presence in each of these
countries of terrorist organizations, their members, and
others exposed to those organizations increases the
chance that conditions will be exploited to enable
terrorist operatives or sympathizers to travel to the
United States.
[4] Finally, once foreign nationals from these countries
are admitted to the United States, it is often difficult to
remove them, because many of these countries typically
delay issuing, or refuse to issue, travel documents.
Exec. Order No. 13,780, 82 Fed. Reg. at 13210. As set forth in the next section,
the first three of these factors are discussed in the State Department—the Country
Reports on Terrorism 2015 (the “Report”), referenced in Section 1(e).
Factor One. Critical criteria for determining why a country was selected for
the travel ban is that a nation be either (1) “a state sponsor of terrorism”;
(2) “significantly compromised by terrorist organizations”; or have (3) “active
conflict zones.” Exec. Order No. 13,780, 82 Fed. Reg. at 13210. It is worth noting
that the second category encompasses “terrorist safe havens,” 5 which are defined in
the Report as including “ungoverned, under-governed, or ill-governed physical
areas where terrorists are able to organize, plan, raise funds, communicate, recruit,

5

The Executive Order’s description of why Somalia should be included in the
scope of the Executive Order is illustrative. There is no allegation that it is a state
sponsor of terrorism or is an active conflict zone. Instead, it begins by saying that
“[p]ortions of Somalia have been terrorist save havens.” Exec. Order No. 13,780,
82 Fed. Reg. at 13211.
11

train, transit, and operate in relative security because of inadequate governance
capacity, political will, or both.” Report at 307.
Factors Two and Three. The second and third factors on which the
Executive Order purports to base its decision to select the six Muslim majority
nations are: (a) an inability or unwillingness to share information about individuals
seeking to travel to the United States, and (b) the significant presence of terrorist
organizations and the risk that terrorist activity will be exported to the United
States.
2.

Section 1(e) and the Report

Section 1(e) explains the reasons why the six selected Muslim-majority
nations qualified for a travel ban by applying the criteria of Section 1(d). Section
1(e) states that the information recited in the Executive Order was taken “in part”
from the Report. Exec. Order No. 13,780, 82 Fed. Reg. at 13210. No other
document is cited. Indeed, much of Section 1(e)’s descriptions of the selected
Muslim-majority nations are identical to those in the Report.
On these facts, the Report is an appropriate and indeed critical reference
with which to construe the meaning and operation of the Order itself. See City of
Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002) (both the majority and
dissent closely scrutinized whether a study, mentioned in a city ordinance as

12

justification for the ordinance, actually supported the purported reason for the
regulation).
B.

Per the Report, Venezuela and the Philippines Satisfy the Criteria
of Section 1(d)

Careful analysis of the Report demonstrates that the Administration has not
consistently applied the criteria set forth in Section 1(d). Specifically, a review of
the representations set forth in the Report demonstrates that at least two Christianmajority nations—Venezuela and the Philippines—allegedly satisfy the three
operative factors set forth in Section 1(d), but were not burdened with the travel
ban.
As noted above, Amici take no position on whether or not these two nations
should be subject to a travel ban or whether the criteria stated in the Executive
Order regarding the selected countries are the right criteria (or not). Nor do Amici
vouch for the representations made in the Report. Rather, the analysis of
Venezuela and the Philippines set forth below simply demonstrates that the
Administration has taken an internally-inconsistent approach to selecting nations
for the travel ban. It is an approach that selectively favors Christian-majority
countries over Muslim-majority countries. It renders the Executive Order fatally
defective under the Establishment Clause.

13

1.

The Application of the Section 1(d) Factors to the Report’s
Allegations Regarding Venezuela

Factor One: Terrorist Safe Haven. The Report bases its determination that
Venezuela is a safe haven for terrorism on purportedly “credible reports that
Venezuela maintained a permissive environment that allowed for support of
activities that benefited known terrorist groups.” Report at 314-15; see also id. at
297. Such groups are said to include the Revolutionary Armed Forces of
Colombia (FARC), the National Liberation Army, and Basque Fatherland and
Liberty, “as well as Hizballah supporters and sympathizers.” Report at 297.
According to the Report, the United States is said to have repeatedly sought
the assistance of Venezuela in combating terrorism. For the tenth year in a row,
however, Venezuela has been deemed “not cooperati[ve],” Report at 297, and has
been ineligible to purchase or license any “defense articles or defense service”
from anywhere within the United States under the Arms Export Control Act, 22
U.S.C. § 2781(a).
Factor Two: Unable and Unwilling to Share or Validate Important
Information About Individuals Seeking to Travel to the United States. The Report
states that in Venezuela, “[b]order security at ports of entry is vulnerable and
susceptible of corruption,” and specifically calls attention to the “lack of
government transparency.” Report at 297. According to the Report, the
“government routinely did not perform biographical or biometric screenings at
14

ports of entry or exit,” and there was “no automated system to collect advanced
Passenger Name Records on commercial flights or to cross-check flight manifests
with passenger disembarkation data.” Report at 297. Moreover, as noted above,
the Report states that Venezuela has (for the last ten years) been “not
cooperat[ive]” with U.S. anti-terrorism efforts. Report at 297.
Factor Three: Significant Presence of Terrorist Organizations and Risk of
Terrorists Travelling to the United States. The Report states that Venezuela
provides a fertile environment for terrorist organizations such as FARC, the
National Liberation Army, and Basque Fatherland and Liberty, “as well as
Hizballah supporters and sympathizers.” Report at 297, 314-15. Reporting such
conditions about a country so close to the United States suggests that the State
Department believes that there is a serious concern that “conditions will be
exploited to enable terrorist operatives or sympathizers to travel [from Venezuela]
to the United States.” Cf. Exec. Order No. 13,780, 82 Fed. Reg. at 13210.
2.

The Application of the Section 1(d) Factors to the Report’s
Allegations Regarding the Philippines

Factor One: Terrorist Safe Haven. According to the Report, the Filipino
government receives substantial assistance from several American agencies, and it
closely cooperates with both the United States government and international
organizations to combat terrorism. Report at 80–84. Nonetheless, the country’s
composition of over 7,100 islands “makes it difficult for the central government to
15

maintain a presence in all areas.” Report at 309. Thus, according to the Report,
several militant groups, including Abu Sayyaf Group (ASG), Jemaah Islamiya,
Bangsamoro Islamic Freedom Fighters (BIFF), the Ansarul Khilafah Philippines
(AKP), and the New People’s Army, are able to operate out of “base locations” in
the Southern Philippines. Report at 78–79, 309.
The Report also focuses on the Sulu/Sulawesi Seas Littoral, an
island/maritime region that straddles Indonesia, Malaysia, and the Philippines, and
is said to be the home to many of the identified terrorist groups. Report at 308.
Per the Report, “the expanse remain[s] difficult to control,” and any surveillance is
“partial at best,” as historic smuggling and piracy “provide[] an effective cover for
terrorist activities, including the movement of personnel, equipment, and funds.”
Report at 308. The Report refers to this region as “an area of concern for WMD
proliferation and transit” due in part to “[w]eak strategic trade controls, legal and
regulatory frameworks, [and] inadequate maritime law enforcement and security
capabilities.” Report at 308.
Factor Two: Unable to Share or Validate Important Information About
Individuals Seeking to Travel to the United State. The Report states that the
government of the Philippines has made progress in improving its border security,
and collaborates closely with the United States and regional groups in doing so.
Report at 80–84. Nonetheless, despite this willingness to collaborate with the
16

United States, per the Report, the government is unable to monitor “the movement
of personnel, equipment, and funds.” Report at 308.
According to the Report, this inability to verify this information is due in
part to difficulties in international cooperation and poor surveillance capabilities in
the Sulu/Sulawesi Seas Littoral. Report at 308. It is also due to the country’s
geographic composition, which “makes it difficult for the central government to
maintain a presence in all areas.” Report at 309. At the time the Report was
published, “violent opposition” and a “continued heavy military and police
presence” allegedly remained in the southern islands. Report at 78. Moreover, the
Report also notes that law enforcement and counterterrorism agencies lack
necessary equipment, have a “mixed record of accountability, are “under-resourced
and understaffed,” and suffer from “widespread official corruption.” Report at 80,
82.
Factor Three: Significant Presence of Terrorist Organizations and Risk of
Terrorists Travelling to the United States. The Report states that “ISIL was
attempting to recruit Filipinos,” and that some of the Filipino-based groups
including ASG, AKP, and BIFF, “have publicly pledged allegiance to ISIL.”
Report at 79. According to the Report, in 2015, these groups “displayed ISILaffiliated images and conducted some of ISIL’s most reprehensible practices—
including the beheading of hostages.” Report at 79. The Report also states that in
17

2015, terrorist groups in the Southern Philippines engaged in kidnappings of both
locals and foreigners, roadside bombings, and the seizing private vessels and Coast
Guard ships. Report at 79-80.
The Report goes further to state that these groups export terrorist activity.
According to the Report, these Filipino-based groups were responsible for highprofile terrorist attacks, including several outside of the Philippines. These include:
•

The 2002 Bali bombings which killed more than 200, including
7 U.S. citizens;

•

The October 2002 bombing near a military base that killed an
American soldier;

•

The August 2003 bombing of the J.W. Marriott Hotel in
Jakarta;

•

The September 2004 bombing outside the Australian Embassy
in Jakarta;

•

The October 2005 suicide bombing in Bali that killed 26; and,

•

The July 2014 firing upon civilians celebrating the end of
Ramadan with assault rifles that left 21 individuals dead.

Report at 352, 380.
C.

Per the Report, Venezuela and the Philippines Present a Greater
Section 1(d) Risk than Does Sudan

Thus, if the allegations of the Report are to be credited, both Venezuela and
the Philippine satisfy the three operative factors of Section 1(d) of the Executive
Order. They were nonetheless exempted from the travel ban. This exclusion
occurred even though the Report—the only source cited as support for the
18

inclusion of the six Muslim-majority countries—sets forth allegations that suggest
that Venezuela and the Philippines are greater threats to the national security of the
United States than is Sudan.
By including Sudan and excluding Venezuela and the Philippines (two
Christian-majority nations), the Administration’s policy is internally and fatally
inconsistent. 6 This inconsistency demonstrates that a country’s predominant
religion is the real basis for its inclusion in the travel ban.
1.

Basis for Sudan’s Inclusion

Section 1(e)(iv) of the Executive Order, relying on information from the
Report, is the paragraph used to justify Sudan’s inclusion in the travel ban:
Sudan has been designated as a state sponsor of terrorism
since 1993 because of its support for international
terrorist groups, including Hizballah and Hamas.
Historically, Sudan provided safe havens for al-Qa’ida
and other terrorist groups to meet and train. Although
Sudan’s support to al-Qa’ida has ceased and it provides
some
cooperation
with
the
United
States’
counterterrorism efforts, elements of core al-Qa’ida and
ISIS-linked terrorist groups remain active in the country.
Exec. Order No. 13,780, 82 Fed. Reg. at 13211. The Report provides only slightly
more detail than this paragraph, and significantly less detail than the information
provided for Venezuela and the Philippines. See Report at 301.

6

As noted above, Amici take no position on the Administration’s assessment of the
national security risk posed by Sudan.
19

2.

A Comparison of the Report’s Account of the Three Nations
Confirms that the Executive Order Violates the
Establishment Clause
a)

Factor 1: State Sponsors of Terrorism/Safe Havens

Per the Report, all three countries satisfy the first criteria, if one accepts the
statements of the Executive Order and the Report. A close reading of those
materials, however, reveals a significant distinction. Sudan is designated as a state
sponsor of terrorism, but such designation is based on historical facts. It was
designated as a state sponsor of terrorism in 1993, when it “served as a meeting
place, safe haven, and training hub for international terrorist groups.” Report at
301. Per the Executive Order and the Report, Sudan has changed its posture
significantly since that time. Report at 301 (“Sudan’s support to al-Qa’ida has
ceased and it provides some cooperation with the United States’ counterterrorism
efforts.”); id. (noting that “the use of Sudan by Palestinian designated terrorist
groups appears to have declined”); Exec. Order No. 13,780, 82 Fed. Reg. at 13211
(“Sudan’s support to al-Qa’ida has ceased.”).
By contrast, both Venezuela’s and the Southern Philippines’ status as
terrorist safe havens are, per the Report, based on current facts. The Report noted
that Venezuela “maintained a permissive environment that allowed for support of
activities benefiting known terrorist groups” in 2015. Report at 297. Similarly, the
Report detailed how the Philippines has been unsuccessfully attempting to

20

eradicate terrorist safe havens in the southern Islands in 2015. Report at 80–84,
308–09.
Put simply, if Sudan satisfies the first Section 1(d) factor, then—in the view
of the Report—Venezuela and the Philippines do as well.
b)

Factor 2: Ability and Will to Share and Validate
Information

While Venezuela has been unwilling to cooperate with the United States in
combatting terrorism, and the Filipino government has been unable to validate
important information, “[t]he United States and Sudan worked cooperatively in
countering the threat posed by al-Qa’ida and ISIL in 2015, which included their
use of transit and facilitation routes within the country.” Report at 301.
Sudan is also reported to be a member of the Partnership for Regional East
Africa Counterterrorism (PREACT), a United States-funded program “designed to
build counterterrorism capacity and cooperation of military, law enforcement, and
civilian actors across East Africa to combat terrorism.” Report at 13. This stands
in stark contrast to Venezuela’s reported lack of cooperation for ten consecutive
years, Report at 297, and the Filipino government’s apparent inability to establish
domain over the southern islands, Report at 308–09.
Again, if Sudan satisfies the second Section 1(d) factor, then (in the view of
the Report) the Philippines and Venezuela clearly do so as well.

21

c)

Factor 3: Risk That Terrorists Will Travel to the
United States

While terrorist organizations continue to operate in Sudan, their presence is
alleged by the Report to be greater in the Philippines. The Report provides a onesentence description of terrorism in Sudan: “elements of al-Qa’ida and ISIL-linked
terrorist groups remained active in Sudan in 2015.” 7 Report at 301. The only
other recent reference to terrorist activity is an attempted Hamas arms shipment in
2014. Report at 301.
Once again, when compared to the Report’s description of kidnappings,
roadside bombings, and the seizing of private and Coast Guard Ships in the
Philippines, see Report at 79–80, or its description of Venezuela’s “permissive
environment” for “known terrorist groups,” Report at 297, the point is quite
simple: if Sudan satisfies Factor Three according to the information in the Report,
the two Christian-majority nations clearly do so as well.
III.

In Light of This Selective Burden Imposed Only on Muslim-Majority
Nations, the Court Should Look to the Statements of the Drafters to
Determine Its Purpose.
When read in light of the Report on which it relies, it is apparent that the

Executive Order selectively disfavors Muslim-majority countries as compared to
similarly-situated non-Muslim countries. The Executive Order’s “express design”
7

As with Sudan, the Report did not list any instances of specific terrorist activity
that took place in Venezuela. See Report at 297–98, 314–15.
22

is “to burden or favor selected religious denominations.” Larson, 456 U.S. at 255.
Accordingly, the Executive Order is in clear violation of the Establishment Clause.
The Administration denies that this is the purpose of the Executive Order.
While “the government’s characterization is . . . entitled to some deference . . . it is
nonetheless the duty of the court to distinguish a sham secular purpose from a
sincere one.” Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000); see
also McCreary Cty. v. ACLU, 545 U.S. 844, 864 (2005). Courts determine the
purpose of a law by considering its history, including statements made by its
drafters. Larson, 456 U.S. at 254; Grumet, 512 U.S. at 699–70. Once the
discriminatory impact of the Order has been established, the Court may look
behind the Executive Order to determine whether it has a discriminatory purpose
that runs afoul of the Establishment clause.
Here, the intention of at least one of the Defendants to burden a particular
religion was articulated publicly. Defendant President Trump’s comments related
to this Executive Order have made it clear that his intention is to discriminate
against Muslims. See, e.g., Aziz, 2017 WL 580855, at *9 (looking to statements
made during and after the election by President Trump, and the “dearth of evidence
indicating a national security purpose,” and concluding that the original Executive
Order was likely intended to be a “Muslim ban”); see also Washington, 847 F.3d at
1167–68 (finding that the States’ Establishment Clause claim raised “serious
23

allegations” and “significant constitutional questions” because of “evidence of
numerous statements by the President about his intent to implement a ‘Muslim
ban’ as well as evidence [suggesting] that the Executive Order was intended to be
that ban”).
CONCLUSION
For the foregoing reasons, the Executive Order should be invalidated as
violating the Establishment Clause. In the alternative, the Court should consider
the extrinsic statements of the President regarding the purpose of the Order to
evaluate its constitutionality.

DATED: March 12, 2017

Respectfully submitted,

By:

/s/ Kevin Collins

Kevin Collins (Bar No. 13131)
[e-mail]
William Zapf (Bar No. 28686)
[e-mail]
Karun Tilak (pro hac vice pending)
[e-mail]
Michael Baker (pro hac vice pending)
[e-mail]
Andrew Guy (pro hac vice pending)
[e-mail]
COVINGTON & BURLING LLP
One City Center
850 Tenth Street, NW
Washington, D.C. 20001-4965
24

Telephone: + 1 [phone]
Robert D. Fram (pro hac vice pending)
[e-mail]
Alexandra P. Grayer (pro hac vice pending)
[e-mail]
Kathryn Bi (pro hac vice pending)
[e-mail]
COVINGTON & BURLING LLP
One Front St.
San Francisco, CA 94111
Telephone: [phone]
Attorneys for Amici Curiae Interfaith
Coalition

25