International Refugee Assistance Project et al v. Trump et al

Filing 91

MOTION for Temporary Restraining Order and/or Preliminary Injunction by HIAS, Inc., Allan Hakky, International Refugee Assistance Project, Jane Doe 1, John Doe 1-4, Samaneh Takaloo (Attachments: # 1 Exhibit IRAP Declaration, # 2 Exhibit HIAS Declaration, # 3 Exhibit MESA Declaration, # 4 Exhibit John Doe 1 Declaration, # 5 Exhibit John Doe 3 Declaration, # 6 Exhibit Mateab Declaration, # 7 Exhibit Jane Doe 2 Declaration, # 8 Exhibit Mohomed Declaration, # 9 Exhibit Harrison Declaration, # 10 Exhibit Hausman Declaration Pt. 1, # 11 Exhibit Hausman Declaration Pt. 2, # 12 Exhibit Hausman Declaration Pt. 3)(Jadwat, Omar)

Exhibit II

Exhibit JJ

Exhibit KK

Exhibit LL

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UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF NEW YORK

HAMEED KHALID DARWEESH, et al,
on behalf of themselves and others
similarly situated,

Case No. l:17-cv-00480
(Amon, J.)

Petitioners,
Date: February 16, 2017

v.
DONALD J. TRUMP, President of the
United States, et ah,
Respondents.

BRIEF OF FORMER NATIONAL SECURITY OFFICIALS
AS AMICI CURIAE IN SUPPORT OF PETITIONERS
Harold Hongju Koh
Hope Metcalf
RULE OF LAW CLINIC
Yale Law School
127 Wall Street, P.O. Box 208215
New Haven, CT 06520-8215
203-432-4932

Jonathan Freiman
Tahlia Townsend
WIGGIN AND DANA LLP
265 Church Street
P.O. Box 1832
New Haven, CT 06508-1832
203-498-4584

Counsel for Amici Curiae

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1

TABLE OF CONTENTS
TABLE OF AUTHORITIES.....................................................................................ii
INTEREST OF AMICI CURIAE.............................................................................. 1
ARGUMENT..............................................................................................................2
I.

THE EXECUTIVE ORDER CANNOT BE JUSTIFIED ON
NATIONAL SECURITY OR FOREIGN POLICY GROUNDS.................3
A.
B.

II.

There is no national security or foreign policy basis for suspending
entry of aliens from the seven named countries....................................... 5
The suspension of refugee admissions is not justified by national
security or foreign policy concerns.........................................................10

THE ORDER’S OVERBREADTH HARMS OUR NATIONAL
SECURITY AND FOREIGN POLICY INTERESTS................................ 13
A.

The Order is of unprecedented scope..................................................... 13

B.

The Order will do serious damage to our national security and foreign
policy interests........................................................................................16
1.
2.
3.
4.
5.

III.

The Order will endanger U.S. troops in the field............................16
The Order will disrupt essential counterterrorism, foreign policy,
and national security partnerships....................................................17
The Order will hinder domestic law enforcement efforts................19
The Order will have a devastating humanitarian impact.................20
The Order will cause economic damage to American citizens and
residents...........................................................................................21

THE ORDER WAS ILL-CONCEIVED, POORLY IMPLEMENTED
AND ILL-EXPLAINED................................................................................. 22

CONCLUSION......................................................................................................... 27
APPENDIX: LIST OF AMICI

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TABLE OF AUTHORITIES
Cases
Azizv. Trump, No. l:17-cv-00116-LMB-TCB, _ F.Supp.3d__, 2017 WL 580855
(E.D. Va. Feb. 13,2017)....................................................................................... 4
Vill. OfArlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977).......26
Washington v. Trump, No. 17-35105, _F.3d_, 2017 WL 526497, slip op. (9th
Cir. Feb. 9, 2017)....................................................................................... 1,4, 14
Statutes
8U.S.C. § 1182...................................................................................................... 23
8U.S.C. § 1187........................................................................................................ 9
Regulations
Exec. Order No. 11,030, 27 Fed. Reg. 5,847 (Jun. 19, 1962)...............................25
Exec. Order No. 12,324, 46 Fed. Reg. 48,109 (Sept. 29, 1981)............................14
Exec. Order No. 12,807, 57Fed. Reg. 23,133 (May 24, 1992).......................14, 15
Exec. Order No. 13,694, 80 Fed. Reg. 18,077 (Apr. 1, 2015)................................ 14
Exec. Order No. 13,726, 81 Fed. Reg. 23,559 (Apr. 19, 2016).............................. 14
Exec. Order No. 13,769, 82 Fed. Reg. 8,977 (Jan. 27, 2017)..................................3
Proclamation No. 5517, 51 Fed. Reg. 30,470 (Aug. 26, 1986)............................. 15
Proclamation No. 6958, 61 Fed. Reg. 60,007 (Nov. 22, 1996).............................. 14
Other Authorities
Adams Nager, et al., The Demographics ofInnovation in the United
States, Information Technology & Innovation Foundation (Feb. 2016)............21
Alex Nowrasteh, Little National Security Benefit to Trump’s Executive Order
on Immigration, CATO at Liberty (Jan. 25, 2017).....................................4, 5,11

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Ill

Alex Nowrasteh, Terrorism and Immigration: A Risk Analysis, Cato Institute
(Sept. 13,2016)............................................................................................ 10, 11
Amy Pope, The Screening Process for Refugee Entry into the United States
(Nov. 20,2015)....................................................................................................11
Andorra Bruno, Iraqi and Afghan Special Immigrant Visa Programs, Cong.
Research Serv. (2016)............................................................................................8
Andorra Bruno, Syrian Refugee Admissions and Resettlement in the United States:
In Brief Cong. Research Serv. (2006)................................................................12
Br. for Technology Companies and Other Businesses as Amici Curiae in Support
of Appellees, Washington v. Trump, No. 17-35105,__F.3d__ , 2017 WL
526497 (9th Cir. Feb. 9, 2017)............................................................................21
Carl J. Bon Tempo, Americans at the Gate: The United States and Refugees
during the Cold War 1 (2008).............................................................................27
Central Intelligence Agency, 11September 2001 Hijackers..................................... 5
Charles R. Babcock, Carter’s Visa Crackdown Won’t Hurt Immediately, Wash.
Post (Apr. 9, 1980)...............................................................................................15
Dan de Luce, Trump’s Immigration Order Gives Ammunition to ISIS, Endangers
US Troops, Foreign Policy (Jan. 29, 2017).......................................................16
David Bier, Trump’s Ban on Immigration from Certain Countries is Illegal,
Cato at Liberty, Dec. 8, 2016..............................................................................15
David Zucchino, Travel Ban Drives Wedge Between Iraqi Soldiers and
Americans, N.Y. Times (Feb. 3,2017)............................................................... 16
Edward Alden, The Closing of the American Border 104-06 (2008)....................23
Evan Perez et ah, Inside the Confusion of the Trump Executive Order and
Travel Ban, CNN (Jan. 30, 2017).................................................................24, 25
Felicia Schwartz & Ben Kesling, Countries Under U.S. Entry Ban Aren’t Main
Sources of Terror Attacks, The Wall St. J. (Jan. 29, 2017)..................................6
Geneva Sands et ah, Officials Aim to Clarify Impact on Dual Nationals From
Trump’s Immigration Executive Order, ABC News (Feb. 1, 2017).............

26

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IV

George Washington University Program on Extremism, ISIS in America: From
Retweets to Raqqa 6 (Dec. 2015)......................................................................... 5
Henry B. Hogue, Cong. Research Serv., RS22979, Presidential Transition Act:
Provisions and Funding (2016).......................................................................... 23
Joby Warrick, Jihadist Groups Hail Trump’s Travel Ban as a Victory, Wash.
Post (Jan. 29 2017)............................................................................................. 20
Jon Finer, Sorry, Mr. President: The Obama Administration Did Nothing Similar
to Your Immigration Ban, Foreign Policy (Jan. 30, 2017).............................7, 23
Jonathan Allen & Brendan O’Brien, How Trump’s Abrupt Immigration Ban
Sowed Confusion at Airports, Agencies, Reuters (Jan. 29, 2017)................24, 25
Justin Jouvenal et al., Justice Dept. Lawyer Says 100,000 Visas Revoked Under
Travel Ban; State Dept. Says about 60,000, Wash. Post (Feb. 3, 2017)............13
Kevin Liptak, Travel Ban Remains Sticking Point in Trump Calls with US
Allies, CUN (Feb. 9, 2017)..................................................................................18
Kristina Cooke & Joseph Ax, U.S. Officials Say American Muslims Do Report
Extremist Threats, Reuters (Jun. 16, 2016)......................................................... 19
Loveday Morris, Iraqi Leader to U.S.: Americans Come to Iraq to Fight With
ISIS, but I Haven’t Banned You, Wash. Post (January 31, 2017).......................18
Marcelo Rochabrun, Trump Order Will Block 500,000 Legal U.S. Residents
from Returning to America from Trips Abroad, ProPublica (Jan. 28, 2017).....13
Maureen Taft-Morales, Cong. Research Serv., Haiti: Efforts to Restore President
Aristide, 1991-1994 14 (1995).............................................................................15
Memorandum from Curtis E. Gannon, Acting Assistant Att’y Gen.
(Jan. 27,2017)..................................................................................................... 25
Memorandum from Donald F. McGahn II, Counsel to the President, to the
Acting Sec’y of State, the Acting Att’y Gen., and the Sec’y of Homeland Sec.
(Feb. 1,2017)...................................................................................................... 26
Memorandum from Sally Yates, Acting Att’y Gen., to the Dep’t of Justice (Jan.
30, 2017)............................................................................................................ 26

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V

Memorandum from Stuart Levey, Assoc. Deputy Att’y Gen., to Dan Levin,
Counsel to the Att’y Gen., & David Ayres, Dep’t of Justice Chief of Staff
(Oct. 3,2001)...................................................................................................... 23
Michael D. Shear & Ron Nixon, How Trump ’s Rush to Enact an Immigration
Ban Unleashed Global Chaos, N.Y. Times (Jan. 29, 2017).........................24, 25
Michael V. Hayden, Former CIA Chief: Trump’s Travel Ban Hurts American
Spies — and America, Wash. Post (Feb. 5, 2017)................................................18
Molly Redden, Trump Powers “Will not be Questioned” on Immigration, Senior
Official Says, The Guardian (Feb. 12, 2007)........................................................6
Muslim Public Affairs Council, Data on Post-9/11 Terrorism in the United
States (Jun. 2012)............................................................................................... 19
Nora Ellingsten, It \s Not Foreigners Who Are Plotting Here: What the Data
Really Show, Lawfare (Feb. 7, 2017).....................................................................6
Oral Argument, Washington v. Trump, No. 17-35105,__F.3d__ , 2017 WL
526497 (9th Cir. Feb. 9, 2017).............................................................................. 6
Patrick O’Neill, How Academics Are Helping Cybersecurity Students Overcome
Trump's Immigration Order, Cyberscoop (Jan. 30, 2017).................................21
Peter Bergen et al., Terrorism in America After 9/11, New America Foundation ... 5
Rebecca Kheel, Trump Travel Order Complicates ISIS Fight in Iraq, The Hill
(Feb. 1,2017).......................................................................................................16
Rebecca Savransky, Iraq Parliament Approves Reciprocity Measure ’ In Trump
Immigration Ban’s Wake, The Hill (Jan. 30, 2017)............................................18
Refugee Processing Center, Interactive Reporting, Admissions and Arrivals ... 7, 19
Robert Pear, Visa Restrictions Chiefly Apply to Iranians Outside ofAmerica,
N.Y. Times (Apr. 8, 1980)................................................................................. 15
Sabrina Siddiqui, Trump Signs Extreme Vetting’ Executive Order for People
Entering the US, The Guardian (Jan. 27, 2017)...................................................5
Sanctions Against Iran Remarks Announcing U.S. Actions, April 7, 1980..........15

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VI

Stephanie Ott, What Happens to Iraqis who Worked with the US. military, A1
Jazeera (Feb. 1, 2017)........................................................................................ 17
Ten Years After 9/11: Preventing Terrorist Travel, Hearing Before the United
States S. Comm, on Homeland Sec. and Governmental Affairs, 112th Cong.
522 (2011) (written statements of Rand Beers and Janice L. Jacobs)..................8
The Security ofU.S. Visa Programs: Hearing Before the S. Comm on Homeland
Sec. & Governmental Affairs, 114th Cong. (2016) (written statements of David
Donahue and Sarah R. Saldana)......................................................................... 7
The White House, Visa Waiver Program Enhancements (Nov. 30, 2015).............8
Thomas R. Eldridge, et. al., 9/11 and Terrorist Travel: A StaffReport of the
National Commission on Terrorist Attacks Upon the United States (2004)......23
U.S. Customs and Border Protection, Protecting the Nation from Foreign
Terrorist Entry into the United States(Feb. 2, 2017)........................................... 17
U.S. Dep't of Homeland Security, DHS Announces Further Travel Restrictions
for the Visa Waiver Program (Feb. 18, 2016)..................................................8, 9
U.S. Dep't of Homeland Security, U.S. Citizenship and Immigration Services
(Dec. 3,2015).......................................................................................................12
U.S. Dep’t of Commerce, Department of Commerce Releases October Travel
and Tourism Expenditures (Dec. 15, 2016).........................................................21
U.S. Dep’t of Defense & Dep’t of State, Joint Report to Congress: Foreign
Military Training (FY 2015-2016)......................................................................17
U.S. Dep’t of Justice, 1980 Statistical Yearbook of the Immigration and
Naturalization Service (1981)..............................................................................15
U.S. Dep’t of Justice, 1987 Statistical Yearbook of the Immigration and
Naturalization Service (1987)............................................................................ 15
U.S. Dep’t of State et al, Report to the Congress, Proposed Refugee Admissions
for Fiscal Year 2016 (2016).................................................................................17
U.S. Dep’t of State, Bureau of Consular Affairs, Report of the Visa Office
(2000)...................................................................................................................16

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Vll

U.S. Dep’t of State, U.S. Refugee Resettlement Processing for Iraqi and Syrian
Beneficiaries of an Approved 1-130 Petition (Mar. 11, 2016)............................12
U.S. Dep’t of State, The Refugee Processing and Screening System................4, 12
U.S. Dep’t of State, US. Refugee Admissions Program FAQs............................. 11
U.S. Dep’t of State, Visa Waiver Program............................................................9
U.N. High Commissioner for Refugees, Resettlement........................................... 13
Urban Justice Center, International Refugee Assistance Project, IRAP Stands
With Iraqi Allies of the United States Affected by Executive Order
(Feb. 1,2017)......................................................................................................17
William Glaberson & Helene Cooper, Obama’s Plan to Close Prison at
Guantanamo May Take Year, N.Y. Times (Jan. 12, 2009)................................23

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INTEREST OF AMICI CURIAE
Amici curiae are former national security, foreign policy and intelligence
officials who have worked on pressing national security matters in the U.S.
government. A number of amici have worked at senior levels in administrations of
both political parties. Amici have collectively devoted decades to combatting the
various terrorist threats that the United States faces in an increasingly dangerous
and dynamic world. Amici have all held the highest security clearances. A
significant number were current on active intelligence regarding credible terrorist
threat streams directed against the United States as recently as one week before the
issuance of the January 27, 2017 Executive Order on “Protecting the Nation from
Foreign Terrorist Entry into the United States” (“Order”).1
Amici all agree that the United States faces real threats from terrorist
networks and must take all prudent and effective steps to combat them, including
the appropriate vetting of travelers to the United States. Amici are nevertheless not
aware of any specific threat that would justify the broad bans on entry into the
United States established by this Order. In amici’s professional opinion, the Order

1 This amicus brief derives from the sworn Joint Declaration of ten of the
signatories, first submitted in Washington v. Trump, No. 17-35105,__F.3d_
2017 WL 526497, slip op. (9th Cir. Feb. 9, 2017) [hereinafter “Ninth Circuit
Opinion”], and also attached to the Petitioners’ motion.

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cannot be justified on national security or foreign policy grounds, and ultimately,
the Order undermines—rather than enhances—the security of the United States.
ARGUMENT
The Order serves no rational national security or foreign policy purpose.
Certainly, it does not perform its declared task of “protecting the nation from
foreign terrorist entry into the United States.” To the contrary, the Order disrupts
thousands of lives, including those of refugees and visa holders who have already
been vetted by standing procedures that Respondents have not shown to be
inadequate.
Left in place, the Order could do long-term damage to our national security
and foreign policy interests. It will endanger troops in the field, and disrupt key
counterterrorism and national security partnerships. It will aid the propaganda
effort of the Islamic State in Iraq and the Levant (“ISIL”) and support its
recruitment message. By feeding the narrative that the United States is at war with
Islam, the Order will impair relationships with the very Muslim communities that
law enforcement professionals rely on to address the threat of terrorism. And it
will have a damaging humanitarian and economic impact.
In prior cases, courts have deferred to the “considered judgment” of the
President only after administrative records have revealed that the President’s
decision rested on counsel from expert agencies with broad experience on the

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matters presented. Here, there is no evidence that the Order was subjected to an
interagency legal and policy process. Rebranding a proposal first advertised as a
“Muslim Ban” as “Protecting the Nation from Foreign Terrorist Entry into the
United States” does not disguise the Order’s discriminatory intent, or make it
necessary, effective or faithful to America’s Constitution, laws, and values.
I.

THE EXECUTIVE ORDER CANNOT BE JUSTIFIED ON
NATIONAL SECURITY OR FOREIGN POLICY GROUNDS.
On January 27, 2017, President Donald Trump signed an executive order

imposing a number of bans on the entry of non-citizens into the United States.2
The President’s stated goals for the Order were to “protect[] the nation from
foreign terrorist entry into the United States” and to “ensure that those approved
for admission do not intend to harm Americans and that they have no ties to
terrorism.”3
As former U.S. officials responsible for the national security and foreign
relations of the United States in multiple presidential administrations, we have
devoted our careers to the same goals. Our first priority has always been the
2 Exec. Order No. 13,769, 82 Fed. Reg. 8,977 (Jan. 27, 2017). The Order bans
entry into the United States by nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria
and Yemen for 90 days, bans all refugee admissions for 120 days, and indefinitely
bans the entry of all Syrian refugees. The Order exempts diplomats (from the ban
on entry for nationals) and refugees whom on a case-by-case basis are deemed to
be in the national interest (from the ban on all refugee admissions for 120 days).
3 Id.

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safety and welfare of the American people. Yet the Order bears no rational
relation to the President’s stated aims. It targets countries whose nationals have
committed no lethal terrorist attacks on U.S. soil in the last forty years. It bars
the entry of refugees—the vast majority of whom are vulnerable women and
children4—when in the modem era of screening, no refugee has ever killed a U.S.
citizen in a terrorist attack in the United States.5
Even now, weeks after the signing of the Order, Respondents have supplied
no information that would justify such a categorical ban. They identify no basis
for believing that there is a heightened or particularized threat from these seven
countries. They make no showing that our immigration system has suffered from
inadequate consideration of national origin or religious affiliation, and identify no
flaw in the current individualized vetting procedures—developed by national
security officials across several presidential administrations in response to
particular threats identified by U.S. intelligence.6

4 U.S. Dep’t of State, The Refugee Processing and Screening System,
https://www.state.gov/documents/organization/266671 .pdf.
5 Alex Nowrasteh, Little National Security Benefit to Trump’s Executive Order on
Immigration, CATO at Liberty (Jan. 25, 2017) [hereinafter “Nowrasteh 2017”].
6 Ninth Circuit Opinion, supra note 1, at 26 (“Although we agree that the
Government’s interest in combating terrorism is an urgent objective of the highest
order, the Government has done little more than reiterate that fact.” (internal
citations and quotation marks omitted)); Aziz v. Trump, No. 1:17-cv-00116-LMBTCB, _ F.Supp.3d__at 6, 2017 WL 580855 (E.D. Va. Feb. 13, 2017)

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A.

There is no national security or foreign policy basis for
suspending entry of aliens from the seven named countries.

No rational national security purpose is served by the Order’s blanket ban on
entry into the United States of nationals of Iraq, Syria, Sudan, Iran, Somalia, Libya,
and Yemen.
First, not a single American has died in a terrorist attack on U.S. soil at the
hands of citizens of these seven nations in the last forty years.7 The Order opens
with a reference to the September 11, 2001 attacks, and White House officials have
since pointed to those attacks as justification for its restrictions.8 But none of the
September 11 hijackers were citizens of the seven targeted countries.9 In fact, the
overwhelming majority of individuals who were charged with—or who died in the
course of committing—terrorist-related crimes inside the United States since
September 11 have been U.S. citizens or legal permanent residents.10

(“Defendants . . . have not offered any evidence to identify the national security
concerns that allegedly prompted this EO, or even described the process by which
the president concluded that this action was necessary.” (citations omitted)).
7 Nowrasteh 2017, supra note 5.
8 Jan. 27 Order §1; Sabrina Siddiqui, Trump Signs ‘Extreme Vetting’ Executive
Order for People Entering the US, The Guardian (Jan. 27, 2017).
9 Central Intelligence Agency, 11 September 2001 Hijackers,
https://www.cia.gov/news-information/speeches-testimony/2002/DCI_18_June
_testimony_new.pdf.
10 See Peter Bergen et ah, Terrorism in America After 9/11, New America
Foundation, www.newamerica.org/in-depth/terrorism-in-america/; George
Washington University Program on Extremism, ISIS in America: From Retweets to

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Second, Respondents have identified no information or basis for believing
that a heightened or particularized future threat has suddenly arisen from the seven
named countries. Those of us who were current on active intelligence concerning
all credible terrorist threat streams directed against the United States as of January
20, 2017 know of no specific threat—-just seven days later—that would justify the
ban of these seven countries. The Order itself points to no such factual basis, and
Respondents have offered none.11
Third, Respondents have identified no flaw in existing procedures that
would justify the bans in the Order. They offer no reason to shift abruptly to
group-based bans, when the United States already has a tested system of
individualized vetting, developed and implemented by national security
professionals across the government. Since the September 11, 2001 attacks, the
United States has developed a rigorous system of security vetting, leveraging the
Raqqa 6 (Dec. 2015), https://cchs.gwu.edu/isis-in-america; Nora Ellingsten, It’s
Not Foreigners Who Are Plotting Here: What the Data Really Show, Lawfare
(Feb. 7, 2017); see also Felicia Schwartz & Ben Kesling, Countries Under US.
Entry Ban Aren’t Main Sources of Terror Attacks, The Wall St. J. (Jan. 29,
2017). One other set of data, relied on by White House officials, has been widely
criticized for its definition of terrorism-related offenses, among other issues. See,
e.g., Molly Redden, Trump Powers “Will Not be Questioned” on Immigration,
Senior Official Says, The Guardian (Feb. 12, 2007),
https ://www.theguardian.com/us-news/2017/feb/12/trump-administrationconsidering-narrower-travel-ban.
11 Oral Argument, Washington v. Trump, No. 17-35105, at 9:30,
http://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000010885.

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full capabilities of the law enforcement and intelligence communities. This vetting
system is applied to travelers not once, but multiple times, and it is continually re­
evaluated to ensure its effectiveness. Successive administrations have strengthened
the vetting process through robust information-sharing and data integration. This
allows the government to identify potential terrorists without resorting to blanket
bans on countries or refugees.12
Finally, the Order cannot be defended as a mere continuation of recent U.S.
counterterrorism policy. Because threat streams constantly evolve, we sought
continually to improve vetting when serving as national security officials. That
effort included reviews in 2011 and 2015-16, when the U.S. government acted in
response to particular threats identified by intelligence sources. In 2011, after
receiving derogatory information regarding two Iraqi nationals who had entered
the United States as refugees, the U.S. government undertook an extensive
interagency review of its vetting system. The flow of refugees from Iraq slowed
during the pendency of the review,13 and upon completion of the review, the U.S.
12 See, e.g., The Security of U.S. Visa Programs: Hearing Before the S. Comm, on
Homeland Sec. & Governmental Affairs, 114th Cong. (2016) (written statements of
David Donahue and Sarah R. Saldana), https://www.hsgac.senate.gov/hearings/thesecurity-of-us-visa-pro grams.
13 Refugee Processing Center, Interactive Reporting,
http://ireports.wrapsnet.org/InteractiveReporting/EnumType/Report?ItemPath=/rpt_WebArrivalsReports/MX%20%20Arrivals%20by%20Nationality%20and%20Religion; Jon Finer, Sorry, Mr.

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government implemented new, stronger security procedures in areas of identified
vulnerability.14
Likewise, in late 2015 and early 2016, in response to the emerging threat
posed by ISIL, the U.S. government took several steps to strengthen the Visa
Waiver Program, which allows citizens from thirty-eight approved countries to
travel to the United States without first obtaining a visa. President Obama
introduced a series of new measures to enhance security screenings and traveler
risk assessments in the program and bolster our relationship with partner
countries.15 Around the same time, President Obama signed into law a statute that
removed from the Visa Waiver Program those nationals of existing Visa Waiver
Program countries who: (1) had been present in Iraq, Syria, Iran or Sudan after

President: The Obama Administration Did Nothing Similar to Your Immigration
Ban, Foreign Policy (Jan. 30, 2017).
14 Ten Years After 9/11: Preventing Terrorist Travel, Hearing Before the United
States S. Comm, on Homeland Sec. and Governmental Affairs, 112th Cong. 522
(2011) (written statements of Rand Beers and Janice L. Jacobs),
https://www.hsgac.senate.gov/hearings/ten-years-after-9/ll-preventing-terroristtravel; Andorra Bruno, Iraqi and Afghan Special Immigrant Visa Programs, Cong.
Research Serv., 14 (2016).
15 The White House, Visa Waiver Program Enhancements (Nov. 30, 2015),
https://obarnawhitehouse.archives.gOv/the-press-office/2015/l 1/30/fact-sheet-visawaiver-program-enhancements; U.S. Dep't of Homeland Security, DHS Announces
Further Travel Restrictions for the Visa Waiver Program (Feb. 18, 2016),
https://www.dhs.gov/news/2016/02/18/dhs-announces-further-travel-restrictionsvisa-waiver-program.

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March 1, 2011, or (2) were dual nationals of one of those four countries.16 Several
months later, the Secretary of Homeland Security—acting under the new statute
and in consultation with the Director of National Intelligence and the Secretary of
State—expanded the list of four countries to include Yemen, Libya and Somalia.17
Contrary to Respondents’ claims, these previous reforms provide no
justification for a blanket, group-based ban on the entry of nationals from these
seven countries. The enhancement of security in the refugee system allowed for
more searching, individualized vetting of travelers, the opposite of the categorical
ban in this Order. Likewise, the reforms to the Visa Waiver Program did not
automatically bar anyone—including nationals of any country—from travel to the
United States. The affected individuals were simply required to obtain
individually-vetted visas before entering the United States, just as nationals from
the more than 150 other nations not currently part of the Visa Waiver Programs
must do.
To keep our country safe from terrorist threats, the U.S. government must
gather all credible evidence about growing threat streams—including through the
16 8 U.S.C. § 1187; U.S. Dep’t of State, Visa Waiver Program,
https://travel.state.gov/content/visas/en/visit/visa-waiver-program.html.
17 The exemptions for Yemen, Libya and Somalia only applied to those who had
traveled to or been present in one of those countries, not dual nationals. U.S. Dep’t
of Homeland Security, DHS Announces Further Travel Restrictions for the Visa
Waiver Program, supra note 15.

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best available intelligence—to thwart those threats before they ripen. Through the
years, national security-based immigration restrictions have: (1) responded to
specific, credible threats based on individualized information, (2) rested on the best
available intelligence, and (3) been subject to thorough interagency legal and
policy review. The present Order does not rest on such tailored grounds, but rather
on (1) generalized bans, (2) that are not supported by any new intelligence that
Respondents have cited or of which we are aware, and (3) were not vetted through
careful interagency legal and policy review.
B.

The suspension of refugee admissions is not justified by national
security or foreign policy concerns.

The Order’s 120-day ban on refugee admissions, and its indefinite ban on
Syrian refugee admissions, serve no national security or foreign policy purpose.
We know of no factual basis for Respondents’ claim that refugees pose a particular
security threat to the United States that would justify the Order’s categorical bans.
From 1975 to the end of 2015, over three million refugees have been
admitted to the United States. According to a recent study, only three have killed
people in terrorist attacks on U.S. soil.18 All three were Cuban refugees, who
murdered three people in two attacks in the 1970s. Critically, these refugees were
admitted and carried out their crimes before the creation of the modem refugee
18 Alex Nowrasteh, Terrorism and Immigration: A Risk Analysis, Cato Institute
(Sept. 13, 2016).

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vetting system in 1980.19 No refugee has killed an American in a terrorist attack in
the United States since that system was put in place.20 According to the study,
over that same period, only twenty refugees were convicted of any terrorismrelated crimes on U.S. soil at all.21
In part, this is because refugees already receive the most thorough vetting of
any travelers to the United States.22 Refugee candidates are vetted recurrently
throughout the resettlement process, as “pending applications continue to be
checked against terrorist databases, to ensure new, relevant terrorism information
has not come to light.”23 By the time refugees referred by the United Nations High
Commissioner for Refugees (“UNHCR”) are approved for resettlement in the
United States, they have been reviewed not only by UNHCR but also by the
National Counterterrorism Center, the Federal Bureau of Investigation, the
Department of Homeland Security, the Department of Defense, the Department of
State and the U.S. intelligence community more broadly.24
19 Id.
20 Id.
21 Id.; see also Nowrasteh 2017, supra note 5.
22 U.S. Dep’t of State, U.S. Refugee Admissions Program FAQs,
https://www.state.gOv/j/prm/releases/factsheets/2017/266447.htm.
23 Amy Pope, The Screening Process for Refugee Entry into the United States
(Nov. 20, 2015), https://obamawhitehouse.archives.gov/blog/2015/ll/20/
infographic-screening-process-refugee-entry-united-states.
24 U.S. Dep’t of State, U.S. Refugee Admissions Programs FAQs, supra note 22.

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The refugee vetting process is also reviewed and strengthened on an ongoing
basis in response to particular threats.25 For Syrian applicants, the Department of
Homeland Security recently added a layer of enhanced review that involves
collaboration between the Refugee, Asylum, and International Operations
Directorate and the Fraud Detection and National Security Directorate. Among
other measures, this review provided additional, intelligence-driven support to
refugee adjudicators that U.S. officials could then use to more precisely question
refugees during their security interviews.26 Respondents allege no specific
information about any vetting step omitted by current procedures.
While the United States’ own individualized vetting process is the most
important step, additional considerations make the U.S. refugee system difficult for
terrorists to exploit. Under current vetting procedures, refugees often wait eighteen
to twenty-four months to be cleared for entry into the United States.27 Further, of
all refugees determined by the UNHCR to be eligible for resettlement, less than
25 U.S. Dep’t of Homeland Security, U.S. Citizenship and Immigration Services
(Dec. 3, 2015), https://www.uscis.gov/sites/default/files/
USCIS/Refugee%2C%20Asylum%2C%20and%20Int%271%200ps/Refugee_Secu
rity_S creening_F act_Sheet.pdf.
26 U.S. Dep't of State, The Refugee Processing and Screening System, supra note 5;
Andorra Bruno, Syrian Refugee Admissions and Resettlement in the United States:
In Brief Cong. Research Serv., 4-5 (2016).
27 U.S. Dep’t of State, U.S. Refugee Resettlement Processingfor Iraqi and Syrian
Beneficiaries of an Approved 1-130 Petition (Mar. 11, 2016),
https://www.state.gOv/j/prm/releases/factsheets/2016/254649.htm.

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one percent were resettled in any country at all in 2015,28 meaning that a would-be
terrorist posing as a refugee has very little chance of being resettled anywhere.
Finally, the UNHCR resettlement program places refugees in dozens of countries,
and refugees do not decide where they are resettled or which country accepts them,
meaning that the odds of any individual refugee being settled into the United States
in particular are exceedingly low.
II.

THE ORDER’S OVERBREADTH HARMS OUR NATIONAL
SECURITY AND FOREIGN POLICY INTERESTS.
The Order’s overreach will do lasting harm to the national security and

foreign policy interests of the United States.
A.

The Order is of unprecedented scope.

The Order effectively amounts to a bar on entry to the United States of
nationals from any of the seven listed countries. The Order revoked the visas of
anywhere between 60,000 to 100,000 people,29 initially encompassed as many as
500,000 green card holders,30 and creates a forward-looking ban on countless more

28 U.N. High Commissioner for Refugees, Resettlement, http://www.unhcr.org/enus/resettlement.html.
29 Justin Jouvenal et al., Justice Dept. Lawyer Says 100,000 Visas Revoked Under
Travel Ban; State Dept. Says about 60,000, Wash. Post (Feb. 3, 2017).
30 Marcelo Rochabrun, Trump Order Will Block 500,000 Legal US. Residents from
Returning to America from Trips Abroad, ProPublica (Jan. 28, 2017). The Order
could conceivably again encompass green card holders depending upon whether a

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individuals. The Order bars doctors and patients, grandmothers and infants,
parents and children, tourists and business travelers, police officers and those
fighting alongside our Service Members abroad, all without regard to individual
threat or circumstance.
This is an order of unprecedented scope. We know of no case where a
president has invoked authority under the Immigration and Nationality Act to
suspend admission of such a sweeping class of people. Even after the September
11 attacks, the U.S. government did not invoke the provisions of law cited by the
Administration to broadly bar entrants based on nationality, national origin or
religious affiliation. Across the decades, executive orders under the Immigration
and Nationality Act have generally targeted specific government officials,31
undocumented immigrants32 or individuals whose personalized screenings
indicated that they posed a national security risk.33

White House Counsel opinion is deemed authoritative by the implementing
agencies. See Ninth Circuit Opinion, supra note 2, at 21-22.
31 See, e.g., Proclamation No. 6958, 61 Fed. Reg. 60,007 (Nov. 22, 1996).
32 See, e.g., Exec. Order No. 12,807, 57 Fed. Reg. 23,133 (May 24, 1992); Exec.
Order No. 12,324, 46 Fed. Reg. 48,109 (Sept. 29, 1981).
33 See, e.g., Exec. Order No. 13,726, 81 Fed. Reg. 23,559 (Apr. 19, 2016); Exec.
Order No. 13,694, 80 Fed. Reg. 18,077 (Apr. 1, 2015).

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Some have claimed that historical examples involving Cuba, Iran, or Haiti
are akin to this Order. But the first two orders included large exceptions,34 and the
third imposed no restrictions on lawful travel by visa holders at all.35 And above

34 In 1980, during the Iranian Hostage Crisis, President Carter invalidated all visas
issued or reissued to Iranian citizens for future entry into the country. Sanctions
Against Iran Remarks Announcing U.S. Actions, April 7, 1980,
http://www.presidency.ucsb.edu/ws/7pidA33233. But the White House also carved
out exceptions for humanitarian need, to include those “visiting a sick aunt,” and
students who were in a course of study in the United States. The White House
even encouraged Iranians in the United States whose visas were set to expire to
apply for asylum. One White House official said, “[o]nce in the good old United
States legally, or illegally for the matter, they are cloaked in the mantle of the
constitutional and legal protections we all value.” Charles R. Babcock, Carter’s
Visa Crackdown Won’t Hurt Immediately, Wash. Post (Apr. 9, 1980); Robert Pear,
Visa Restrictions Chiefly Apply to Iranians Outside ofAmerica, N.Y. Times (Apr.
8, 1980); see U.S. Dep’t of Justice, 1980 Statistical Yearbook of the Immigration
and Naturalization Service (1981).
In 1986, in the course of a diplomatic impasse over a migration agreement,
President Reagan issued a presidential proclamation suspending the “[ejntry of
Cuban nationals as immigrants” into the United States. Proclamation No. 5517, 51
Fed. Reg. 30,470 (Aug. 26, 1986). But that proclamation included a major
exception for the immediate relatives of U.S. citizens. Id.', U.S. Dep’t of Justice,
1987 Statistical Yearbook of the Immigration and Naturalization Service (1987);
see also David Bier, Trump’s Ban on Immigration from Certain Countries is
Illegal, Cato at Tiberty, Dec. 8, 2016. Both actions were taken to exert pressure
against a particular national government—and in the case of Cuba, to “resume
normal migration”—not to minimize a threat posed by particular people.
35 In 1991, President Bush issued an Executive Order that imposed restrictions on
“undocumented aliens” who were “coming by sea to the United States without
necessary documents.” Exec. Order 12,807, 57 Fed. Reg. 23,133 (June 1, 1992).
However, legal travel and immigration continued from Haiti into the United States
in this period. Even as to those without documents, the Bush Administration
offered those repatriated the option of seeking in-country refugee processing.
Maureen Taft-Morales, Cong. Research Serv., Haiti: Efforts to Restore President

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16

all, no modem example even approaches the unqualified sweep of this Order,
which bans nearly 220 million people from seven separate countries from traveling
to the United States.
B.

The Order will do serious damage to our national security and
foreign policy interests.

The Order will harm the interests of the United States in a number of
respects.
1.

The Order will endanger U.S. troops in the field.

Every day, U.S. Service Members work and fight alongside allies from some
of the named countries, who put their lives on the line to protect Americans and
further American interests abroad. Those barred by the Order include individuals
working alongside our men and women in Iraq fighting against ISIL.36 Soldiers
from these countries have already voiced resentment at the Order.37 The Order

Aristide, 1991-1994, 14 (1995); U.S. Dep’t of State, Bureau of Consular Affairs,
Report of the Visa Office (2000), tables XII, XIII, XIV, XV, XVIII, XIX,
https ://travel. state .gov/content/visas/en/law-and-policy/statistics/annualreports/report-of~the-visa-office-2000.html.
36 Rebecca Kheel, Trump Travel Order Complicates ISIS Fight in Iraq, The Hill
(Feb. 1, 2017); Dan de Luce, Trump’s Immigration Order Gives Ammunition to
ISIS, Endangers US. Troops, Foreign Policy (Jan. 29, 2017).
37 David Zucchino, Travel Ban Drives Wedge Between Iraqi Soldiers and
Americans, N.Y. Times (Feb. 3, 2017).

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may also obstruct ongoing training, education, and other security cooperation
programs underway with several of the listed countries.38
Moreover, the Order will affect interpreters and others who have assisted our
troops at great risk to their own lives. The Order initially banned all such
individuals from coming to the United States. Days later, U.S. officials announced
that it would allow “the entry of Iraqi nationals with a Special Immigrant Visa to
the United States.”39 But even that step leaves unaddressed tens of thousands of
others who assisted the United States and who are waiting for admission as
“Priority 2” refugees outside of the now closed Special Immigrant Visa program.40
By discouraging future assistance and cooperation from these and other affected
military allies and partners, the Order will jeopardize the safety and effectiveness
of our troops.
2.

The Order will disrupt essential counterterrorism, foreign
policy, and national security partnerships.

38 U.S. Dep’t of Defense & Dep’t of State, Joint Report to Congress: Foreign
Military Training (FY 2015-2016).
39 U.S. Customs and Border Protection, Protecting the Nation from Foreign
Terrorist Entry into the United States (Feb. 2, 2017).
40 U.S. Dep’t of State et al., Report to the Congress, Proposed Refugee Admissions
for Fiscal Year 2016, at 57 (2016); Stephanie Ott, What Happens to Iraqis who
Worked with the US. military, Al Jazeera (Feb. 1, 2017); Urban Justice Center,
International Refugee Assistance Project, IRAP Stands With Iraqi Allies of the
United States Affected by Executive Order (Feb. 1, 2017).

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The Order will disrupt key counterterrorism, foreign policy, and national
security partnerships that are critical to our country’s efforts to address the threat
posed by terrorist groups such as ISIL. The Order has sparked intense international
criticism and alienated U.S. allies. Partner countries in the Middle East, on whom
we rely for vital counterterrorism cooperation, are expressing disapproval and even
threatening reciprocity, jeopardizing years of diplomatic effort.41
The Order will also endanger U.S. intelligence sources in the field. For upto-date information, our intelligence officers often rely on human sources in some
of the countries listed. The Order breaches faith with those very sources, who have
risked much or all to keep Americans safe—and whom our officers had promised
to protect.42 Finally, by suspending visas, this Order halts the collection of
important intelligence that occurs during visa screening processes, information that
can be used to recruit agents and identify regional trends of instability.43

41 Rebecca Savransky, Iraq Parliament Approves ‘Reciprocity Measure ’ In Trump
Immigration Ban’s Wake, The Hill (Jan. 30, 2017); Loveday Morris, Iraqi Leader
to US.: Americans Come to Iraq to Fight With ISIS, but I Haven’t Banned You,
Wash. Post (January 31, 2017); Kevin Liptak, Travel Ban Remains Sticking Point
in Trump Calls with US Allies, CNN (Feb. 9, 2017).
42 Michael V. Hayden, Former CIA Chief: Trump’s Travel Ban Hurts American
Spies ~~ and America, Wash. Post (Feb. 5, 2017).
43 This process is particularly important in countries like Iran and Libya, where
internal conflict or lack of diplomatic ties limit on-the-ground intelligence
collection.

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3.

The Order will hinder domestic law enforcement efforts.

Domestic law enforcement relies heavily on partnerships with American
Muslim communities to fight homegrown terrorism.44 One report found that in the
years since September 11, 2001, Muslim communities have helped U.S. security
officials prevent nearly two out of every five Al-Qaeda plots threatening the
United States.45 By alienating Muslim-American communities in the United
States, the Order will harm our efforts to enlist their aid in identifying radicalized
individuals who might launch attacks of the kind recently seen in San Bernardino
and Orlando.
The Order’s disparate impact on Muslim travelers and immigrants feeds
ISIL’s propaganda narrative and sends the wrong message to the Muslim
community at home and abroad: that the U.S. government is at war with them
based on their religion.46 Less than a day after President Trump signed the Order,

44 Kristina Cooke & Joseph Ax, US. Officials Say American Muslims Do Report
Extremist Threats, Reuters (Jun. 16, 2016).
45 Muslim Public Affairs Council, Data on Post-9/11 Terrorism in the United
States (Jun. 2012), http://www.mpac.org/assets/docs/publications/MPAC-Post911 -Terrorism-Data.pdf.
46 Muslim refugees from the seven listed countries made up 82.2 percent of all
Muslim refugee arrivals to the United States from January 1, 2016 to February 11,
2017. Refugee Processing Center, Interactive Reporting, Admissions and Arrivals
http://ireports.wrapsnet.org/InteractiveReporting/EnumType/Report?
ItemPath=/rpt_WebArrivalsReports/MX%2 0%2 0 Arrivals%2 Oby%2 ONationality%
20and%20Religion.

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jihadist groups began citing its contents in recruiting messages online.47 The Order
may even endanger Christian communities overseas, by handing ISIL a recruiting
tool and propaganda victory that spreads their message that the United States is
engaged in a religious war.
4.

The Order will have a devastating humanitarian impact.

The Order will have an immediate and devastating humanitarian impact.
First and foremost, the Order disrupts the travel of men, women and children who
have been victimized by actual terrorists. Tens of thousands of other travelers
today face deep uncertainty about whether they may travel to or from the United
States for reasons including medical treatment, study or scholarly exchange,
funerals or other pressing family reasons. While the Order allows the Secretaries of
State and Homeland Security to admit travelers from targeted countries on a caseby-case basis, in our experience it would be unrealistic for these overburdened
agencies to apply such procedures to every one of the thousands of affected
individuals with urgent and compelling needs to travel. Finally, closing our borders
to refugees who otherwise would have had the opportunity to resettle in the United
States will keep them in dangerous conditions and shift the burden to overstretched
allies who are currently accepting far more than their fair share of refugees.
47 Joby Warrick, Jihadist Groups Hail Trump’s Travel Ban as a Victory, Wash.
Post (Jan. 29 2017).

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5.

The Order will cause economic damage to American
citizens and residents.

Finally, the Order will affect many foreign travelers who annually inject
hundreds of billions of dollars into the U.S. economy, supporting well over a
million U.S. jobs.48 Since the Order was issued, dozens of affected companies
have noted the damaging impact it can be expected to have on strategic economic
sectors including defense, technology, and medicine.49 About a third of U.S.
innovators were born outside the United States, and their scientific and
technological innovations often contribute to making our nation and the world
safe.50 The harm caused by the ban to the economic dynamism of our country will
carry long-term negative and serious consequences for our national security.

48 U.S. Dep’t of Commerce, Department of Commerce Releases October Travel
and Tourism Expenditures (Dec. 15, 2016), http://trade.gov/press/pressreleases/2016/department-of-commerce-releases-october-travel-tourismexpenditures-121516. asp.
49 See, e.g., Br. for Technology Companies and Other Businesses as Amici Curiae
in Support of Appellees, Washington v. Trump, No. 17-35105,__F.3d__ , 2017
WL 526497 (9th Cir. Feb. 9, 2017).
50 Adams Nager, et al., The Demographics ofInnovation in the United
States, Information Technology & Innovation Foundation 29 (Feb.
2016), http://www2.itif.org/2016-demographics-of~innovation.pdf. Iran’s
universities, for example, have produced an “inordinate amount of intellectual
talent in computer science and cybersecurity.” These scientists are drawn to
universities in the United States, where their research is then used by entities such
as the Office of Naval Research and DARPA. Patrick O’Neill, How Academics
Are Helping Cybersecurity Students Overcome Trump’s Immigration Order,

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III. THE ORDER WAS ILL-CONCEIVED, POORLY IMPLEMENTED
AND ILL-EXPLAINED.
Respondents have presented no evidence that the Order was subject to the
thorough interagency policy and legal processes designed to address current
terrorist threats.
In every recent administration, presidents considering a change to
immigration policy have followed an interagency review process that allows
experts and security professionals to ensure that all relevant uncertainties are
addressed by policy and legal experts, appropriate preparations are made for
implementation, and any potential risks are effectively mitigated. Before
recommendations are submitted to the President, the National Security Council
oversees a legal and policy process that typically includes the following important
components: a review by the career professionals in institutions of the U.S.
government charged with implementing an order; a review by the career lawyers in
those institutions to ensure legality and consistency in interpretation; and a senior
policy review across all relevant agencies, including Deputies and Principals at the
cabinet level.

Cyberscoop (Jan. 30, 2017), https://www.cyberscoop.com/trump-immigration-bancybersecurity-iran-protests/.

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This practice of interagency deliberation has been followed even—and
especially—in times of national emergency in order to set temporary exclusions or
establish criteria for admission to the United States. In the immediate aftermath of
the September 11, 2001 attacks, when the Bush Administration considered whether
the President should invoke 8 U.S.C. § 1182(f) to bar certain immigrants or take
other actions to secure the border, officials engaged in consultations across the
national security agencies to arrive at a decision.51 The reexamination of the
vetting system in 201152 and the security reforms to the Visa Waiver Program in
2015-1653 reflect similar interagency consultation.
The process that produced this Order departed from decades of standard
practice across administrations of both parties.54 Respondents offer no evidence
that the present Order resulted from experienced intelligence and security
professionals recommending changes in response to identified threats. We know
51 Edward Alden, The Closing of the American Border 104-06 (2008); Thomas R.
Eldridge, et ah, 9/11 and Terrorist Travel: A StaffReport of the National
Commission on Terrorist Attacks Upon the United States 151-54 (2004);
Memorandum from Stuart Levey, Assoc. Deputy Att’y Gen., to Dan Levin,
Counsel to the Att’y Gen., & David Ayres, Dep’t of Justice Chief of Staff (Oct. 3,
2001).

52 Jon Finer, supra note 13.
53 See supra notes 15-17 and surrounding text.
54 This is no less true of executive orders issued at the start of a new presidency.
See, e.g., Henry B. Hogue, Cong. Research Serv., Presidential Transition Act:
Provisions and Funding (2016); William Glaberson & Helene Cooper, Obama’s
Plan to Close Prison at Guantanamo May Take Year, N.Y. Times (Jan. 12, 2009).

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of no process underway before January 20, 2017 to change current immigration
yetting procedures. According to extensive reporting, since that date, Respondents
followed no such process.55 Nor, apparently, did the White House consult officials
from any of the seven agencies tasked with enforcing immigration laws, much less
the congressional committees and subcommittees that oversee them. Respondents’
repeated need to clarify confusion that ensued in the wake of the Order only
confirms that the Order received little, if any, advance scrutiny by the Departments
of State, Justice, Homeland Security or the intelligence community.56
As telling, this Order was apparently issued without interagency legal
process. In recent history, administrations of both political parties have followed a
protocol of submitting proposed Orders to the Attorney General, the Justice
Department’s Office of Legal Counsel (“OLC”) and all other agency legal offices

55 The Secretary of Homeland Security reportedly received his first lull briefing as
the President signed the Order. Michael D. Shear & Ron Nixon, How Trump’s
Rush to Enact an Immigration Ban Unleashed Global Chaos, N.Y. Times (Jan. 29,
2017). The Secretary of Defense was neither consulted during the drafting of the
order nor given an opportunity to provide input. Evan Perez et al., Inside the
Confusion of the Trump Executive Order and Travel Ban, CNN (Jan. 30, 2017).
Most State Department officials reportedly first heard of the Order through the
media. Jonathan Allen & Brendan O’Brien, How Trump’s Abrupt Immigration
Ban Sowed Confusion at Airports, Agencies, Reuters (Jan. 29, 2017).
56 Customs and border officials reported that their superiors could not provide clear
guidance about the new policy. Shear & Nixon, supra note 55; see also Allen &
O’Brien, supra note 54 (quoting CBP chief of passenger operations at John F.
Kennedy International Airport declaring, “[w]e are as much in the dark as
everybody else.”).

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involved with enforcing the law.57 Legal review by multiple agencies helps to
identify potentially unforeseen legal implications of an order, determines the
lawfulness of the proposed action, and analyzes whether the proposed language has
established legal meaning that can be interpreted consistently with other laws and
regulations governing the field. Here, the White House reportedly never asked the
Department of Homeland Security for legal review in advance of the Order being
promulgated, so “[t]he Department. . . was left making a legal analysis on the
order after [President] Trump signed it.”58 Unsurprisingly, the resulting Order
contains numerous ambiguities and inconsistencies that immediately caused
confusion, forcing implementing agencies to improvise.59
On January 27, the Office of Legal Counsel issued a cursory memorandum
that declared the Order “approved with respect to form and legality.”60 But the
OLC memorandum conspicuously omits any legal analysis or discussion of either
the Order’s impact on permanent U.S. residents or the constitutional provisions
plainly implicated, i.e., the Due Process, Equal Protection, and Establishment and
Free Exercise of Religion Clauses. Soon thereafter, the Acting Attorney General

57 See, e.g, Exec. Order No. 11,030, 27 Fed. Reg. 5,847 (Jun. 19, 1962).
58 Perez et al., supra note 54; Shear & Nixon, supra note 54.
59 Allen & O’Brien, supra note 54.
60 Memorandum from Curtis E. Gannon, Acting Assistant Att’y Gen. (Jan. 27,
2017).

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concluded that the Department of Justice would not defend the Order because she
was not “convinced that the Executive Order is lawful.”61
The Department of Homeland Security initially construed the Executive
Order not to apply to people with lawful permanent residence. Overnight, the
White House overruled the Department and instructed the agency to allow lawful
permanent residents entry only on a case-by-case basis. Five days later, the White
House reversed itself and announced that the Order did not apply to either “green
card holders”62 or dual nationals.63
When courts in previous cases have deferred to the “considered judgment”
of the President, they did so on the basis of administrative records showing that the
President’s decision rested on cleared views from expert agencies with broad
experience on the matters presented to him. And as the Supreme Court has noted,
“[departures from the normal procedural sequence also might afford evidence that
improper purposes are playing a role.”64

61 Memorandum from Sally Yates, Acting Att’y Gen., to the Dep’t of Justice (Jan.
30, 2017).
62 Memorandum from Donald F. McGahn II, Counsel to the President, to the
Acting Sec’y of State, the Acting Att’y Gen., and the Sec’y of Homeland Sec.
(Feb. 1,2017).
63 Geneva Sands et al., Officials Aim to Clarify Impact on Dual Nationals From
Trump’s Immigration Executive Order, ABC News (Feb. 1, 2017).
64 Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 267
(1977).

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CONCLUSION
Ours is a nation of immigrants, committed to the faith that we are all equal
under the law and that we abhor discrimination, whether based on race, religion,
sex, or national origin. As government officials, we sought diligently to protect
our country, even while maintaining an immigration system free from intentional
discrimination, a system that applies no religious tests and that measures
individuals by their merits, not by stereotypes of countries or groups.
Unjustified blanket bans of certain countries or classes of people are beneath
the dignity of the nation and Constitution that we took oaths to protect. Although
our nation was founded by immigrants fleeing religious persecution, the Order
discriminates based on religion. Although our Constitution enshrines the principle
that all are equal under the law, the Order discriminates on the basis of national
origin. And although the United States accepted over four million refugees in the
decades after World War II,65 the Order willfully ignores the greatest refugee crisis
since that time.
Allowing the Order to take effect would wreak havoc on our nation’s
security and deeply held American values and threaten innocent lives. Blocking
the Order while the underlying legal issues are being adjudicated would not

65 Carl J. Bon Tempo, Americans at the Gate: The United States and Refugees
during the Cold War 1 (2008).

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jeopardize national security. It would simply preserve the status quo ante, still
subjecting individuals to all the rigorous legal vetting processes that are currently
in place.
For all of these reasons, the January 27, 2017 Executive Order does not
further—but instead harms—sound U.S. national security and foreign policy.

Respectfully Submitted,

Harold Hongju Koh
Hope Metcalf
RULE OF LAW CLINIC
Yale Law School
127 Wall Street, P.O. Box 208215
New Haven, CT 06520-8215
203-432-4932

Jonathan Freiman
Tahlia Townsend
WIGGIN AND DANA LLP
265 Church Street
P.O. Box 1832
New Haven, CT 06508-1832
203-498-4584

Counsel for Amici Curiae*

* We are grateful to Phil Spector, Danieli Evans, Clare Ryan, and the student
members of the Yale Law School Rule of Law Clinic—Benjamin Alter, Colleen
Culbertson, Idriss Fofana, Alexandra Mahler-Haug, Abigail Olson, Aisha Saad,
Mitzi Steiner, Aleksandr Sverdlik, Beatrice Walton, Emily Wanger, Zoe Weinberg,
Tianyi Xin, and Nathaniel Zelinsky—for their contributions to this submission.
Yale Law School’s Rule of Law Clinic is organized separately from the school’s
Jerome N. Frank Legal Services Organization (“LSO”), one of the counsel for
Petitioners. The views expressed by Yale Law School’s legal clinics are not
necessarily those of the Yale Law School.

Case 1:17-cv-00480-CBA Document 137 Filed 02/16/17 Page 37 of 41 PageID #: 1505
la

APPENDIX: LIST OF AMICI
1.
Madeleine K. Albright served as Secretary of State from 1997 to
2001. A refugee and naturalized American citizen, she served as U.S. Permanent
Representative to the United Nations from 1993 to 1997. She has also been a
member of the Central Intelligence Agency External Advisory Board since 2009
and of the Defense Policy Board since 2011, in which capacities she has received
assessments of threats facing the United States.
2.
Jeremy Bash served as Chief of Staff at the U.S. Department of
Defense from 2011 to 2013, and as Chief of Staff at the Central Intelligence
Agency from 2009 to 2011.
3.
Rand Beers served as Deputy Homeland Security Advisor to the
President of the United States from 2014 to 2015.
4.
Daniel Benjamin served as Ambassador-at-Large for Counterterrorism
at the U.S. State Department from 2009 to 2012.
5.
Antony Blinken served as Deputy Secretary of State from 2015 to
January 20, 2017. He also served as Deputy National Security Advisor to the
President of the United States from 2013 to 2015.
6.
R. Nicholas Bums served as Under Secretary of State for Political
Affairs from 2005 to 2008. He previously served as U.S. Ambassador to NATO
and as U.S. Ambassador to Greece.
7.
William J. Bums served as Deputy Secretary of State from 2011 to
2014. He previously served as Under Secretary of State for Political Affairs from
2008 to 2011, as U.S. Ambassador to Russia from 2005 to 2008, as Assistant
Secretary of State for Near Eastern Affairs from 2001 to 2005, and as U.S.
Ambassador to Jordan from 1998 to 2001.
8.
James Clapper served as U.S. Director of National Intelligence from
2010 to January 20, 2017.
9.
David S. Cohen served as Under Secretary of the Treasury for
Terrorism and Financial Intelligence from 2011 to 2015 and as Deputy Director of
the Central Intelligence Agency from 2015 to January 20, 2017.

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2a

10. Ryan Crocker served as U.S. Ambassador to Afghanistan from 2011
to 2012, U.S. Ambassador to Iraq from 2007 to 2009, U.S. Ambassador to Pakistan
from 2004 to 2007, U.S. Ambassador to Syria from 1998 to 2001, U.S.
Ambassador to Kuwait from 1994 to 1997, and U.S. Ambassador to Lebanon from
1990 to 1993.
11. Daniel Feldman served as U.S. Special Representative for
Afghanistan and Pakistan from 2014 to 2015, Deputy U.S. Special Representative
for Afghanistan and Pakistan from 2009 to 2014, and previously Director for
Multilateral and Humanitarian Affairs at the National Security Council.
12. Jonathan Finer served as Chief of Staff to the Secretary of State from
2015 until January 20, 2017, and Director of the Policy Planning Staff at the U.S.
State Department from 2016 until January 20, 2017.
13. Robert S. Ford served as U.S. Ambassador to Syria from 2011 to
2014, as Deputy Ambassador to Iraq from 2009 to 2010, and as U.S. Ambassador
to Algeria from 2006 to 2008.
14. Michele Flournoy served as Under Secretary of Defense for Policy
from 2009 to 2013.
15. Avril D. Haines served as Deputy National Security Advisor to the
President of the United States from 2015 to January 20, 2017. From 2013 to 2015,
she served as Deputy Director of the Central Intelligence Agency.
16. General (ret.) Michael V. Hayden, USAF, served as Director of the
Central Intelligence Agency from 2006 to 2009. From 1995 to 2005, he served as
Director of the National Security Agency.
17. Christopher R. Hill served as Assistant Secretary of State for East
Asian and Pacific Affairs from 2005 to 2009. He also served as U.S. Ambassador
to Macedonia, Poland, the Republic of Korea, and Iraq.
18.

John F. Kerry served as Secretary of State from 2013 to January 20,

2017.
19. Marcel Lettre served as Under Secretary of Defense for Intelligence
from 2015 to 2017.

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3a

20. John E. McLaughlin served as Deputy Director of the Central
Intelligence Agency from 2000 to 2004 and as Acting Director in 2004. His duties
included briefing President-elect Bill Clinton and President George W. Bush.
21. Lisa O. Monaco served as Assistant to the President for Homeland
Security and Counterterrorism and Deputy National Security Advisor from 2013 to
January 20, 2017.
22. Michael J. Morell served as Acting Director of the Central
Intelligence Agency in 2011 and from 2012 to 2013; as Deputy Director of the
Central Intelligence Agency from 2010 to 2013; and as a career official from 1980
onward. His duties included briefing Presidents George W. Bush and Barack
Obama.
23. Janet A. Napolitano served as Secretary of Homeland Security from
2009 to 2013.
24. James C. O’Brien served as Special Presidential Envoy for Hostage
Affairs from 2015 to January 20, 2017. He served in the State Department from
1989 to 2001, including as Principal Deputy Director of Policy Planning and as
Special Presidential Envoy for the Balkans.
25. Matthew G. Olsen served as Director of the National Counterterrorism
Center from 2011 to 2014.
26. Leon E. Panetta served as Secretary of Defense from 2011 to 2013.
From 2009 to 2011, he served as Director of the Central Intelligence Agency.
27. Samantha J. Power served as U.S. Permanent Representative to the
United Nations from 2013 to January 20, 2017. From 2009 to 2013, she served as
Senior Director for Multilateral and Human Rights on the National Security
Council.
28. Susan E. Rice served as U.S. Permanent Representative to the United
Nations from 2009 to 2013 and as National Security Advisor from 2013 to January
20, 2017.
29. Anne C. Richard served as Assistant Secretary of State for Population,
Refugees and Migration from 2012 to January 20, 2017.

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30. Eric P. Schwartz served as Assistant Secretary of State for Population,
Refugees and Migration from 2009 to 2011. From 1993 to 2001, he was
responsible for refugee and humanitarian issues on the National Security Council,
ultimately serving as Special Assistant to the President for National Security
Affairs and Senior Director for Multilateral and Humanitarian Affairs.
31. Wendy R. Sherman served as Under Secretary of State for Political
Affairs from 2011 to 2015.
32. Vikram Singh served as Deputy Special Representative for
Afghanistan and Pakistan from 2010 to 2011 and as Deputy Assistant Secretary of
Defense for Southeast Asia from 2012 to 2014.
33. James B. Steinberg served as Deputy National Security Adviser from
1996 to 2000 and as Deputy Secretary of State from 2009 to 2011.
34. Jake Sullivan served as National Security Adviser to the Vice
President from 2013 to 2014. From 2011 to 2013, he served as Director of the
Policy Planning Staff at the U.S. State Department.
35. Samuel M. Witten served as Principal Deputy Assistant Secretary of
State for Population, Refugees, and Migration from 2007 to 2010. From 2001 to
2007, he served as Deputy Legal Adviser at the State Department.

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CERTIFICATE OF SERVICE
I, Jonathan Freiman, hereby certify that on February 16, 2017, the foregoing
document was filed and served through the CM/ECF system. Parties may access
the filings through the Court’s CM/ECF System.
/s/ Jonathan Freiman
WIGGIN AND DANA LLP
265 Church Street
P.O. Box 1832
New Haven, CT 06508-1832
[phone]

Exhibit MM

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IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 17-35105
STATE OF WASHINGTON, et al.
Plaintiffs-Appellees,
vs.

DONALD J. TRUMP, President of the
United States, et al.,
Defendants-Appellants.

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JOINT DECLARATION OF
MADELEINE K. ALBRIGHT,
AVRIL D. HAINES
MICHAEL V. HAYDEN
JOHN F. KERRY
JOHN E. McLAUGHLIN
LISA O. MONACO
MICHAEL J. MORELL
JANET A. NAPOLITANO
LEON E. PANETTA
SUSAN E. RICE

We, Madeleine K. Albright, Avril D. Haines, Michael V. Hayden, John F. Kerry, John E.
McLaughlin, Lisa O. Monaco, Michael J. Morell, Janet A. Napolitano, Leon E. Panetta, and
Susan E. Rice declare as follows:
1.
We are former national security, foreign policy, and intelligence officials in the
United States Government:
a. Madeleine K. Albright served as Secretary of State from 1997 to 2001. A
refugee and naturalized American citizen, she served as U.S. Permanent
Representative to the United Nations from 1993 to 1997 and has been a
member of the Central Intelligence Agency External Advisory Board since
2009 and the Defense Policy Board since 2011, in which capacities she has
received assessments of threats facing the United States.
b. Avril D. Haines served as Deputy Director of the Central Intelligence Agency
from 2013 to 2015, and as Deputy National Security Advisor from 2015 to
January 20, 2017.
c. Michael V. Hayden served as Director of the National Security Agency from
1999 to 2005, and Director of the Central Intelligence Agency from 2006 to
2009.
d. John F. Kerry served as Secretary of State from 2013 to January 20, 2017.

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e. John E. McLaughlin served as Deputy Director of the Central Intelligence
Agency from 2000-2004 and Acting Director of CIA in 2004. His duties
included briefing President-elect Bill Clinton and President George W. Bush.
f. Lisa O. Monaco served as Assistant to the President for Homeland Security
and Counterterrorism and Deputy National Security Advisor from 2013 to
January 20, 2017.
g. Michael J. Morell served as Acting Director of the Central Intelligence
Agency in 2011 and from 2012 to 2013, Deputy Director from 2010 to 2013,
and as a career official of the CIA from 1980. His duties included briefing
President George W. Bush on September 11, 2001, and briefing President
Barack Obama regarding the May 2011 raid on Osama bin Laden.
h. Janet A. Napolitano served as Secretary of Homeland Security from 2009 to
2013.
i. Leon E. Panetta served as Director of the Central Intelligence Agency from
2009-11 and as Secretary of Defense from 2011-13.
j. Susan E. Rice served as U.S. Permanent Representative to the United Nations
from 2009-13 and as National Security Advisor from 2013 to January 20,
2017.
2.
We have collectively devoted decades to combatting the various terrorist threats
that the United States faces in a dynamic and dangerous world. We have all held the highest
security clearances. A number of us have worked at senior levels in administrations of both
political parties. Four of us (Haines, Kerry, Monaco and Rice) were current on active
intelligence regarding all credible terrorist threat streams directed against the U.S. as recently as
one week before the issuance of the Jan. 27, 2017 Executive Order on “Protecting the Nation
from Foreign Terrorist Entry into the United States” (“Order”).
3.
We all agree that the United States faces real threats from terrorist networks and
must take all prudent and effective steps to combat them, including the appropriate vetting of
travelers to the United States. We all are nevertheless unaware of any specific threat that would
justify the travel ban established by the Executive Order issued on January 27, 2017. We view
the Order as one that ultimately undermines the national security of the United States, rather than
making us safer. In our professional opinion, this Order cannot be justified on national security
or foreign policy grounds. It does not perform its declared task of “protecting the nation from
foreign terrorist entry into the United States.” To the contrary, the Order disrupts thousands of
lives, including those of refugees and visa holders all previously vetted by standing procedures
that the Administration has not shown to be inadequate. It could do long-term damage to our
national security and foreign policy interests, endangering U.S. troops in the field and disrupting
counterterrorism and national security partnerships. It will aid ISIL’s propaganda effort and
serve its recruitment message by feeding into the narrative that the United States is at war with
Islam. It will hinder relationships with the very communities that law enforcement professionals
need to address the threat. It will have a damaging humanitarian and economic impact on the
lives and jobs of American citizens and residents. And apart from all of these concerns, the
Order offends our nation’s laws and values.

2

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4.
There is no national security purpose for a total bar on entry for aliens from the
seven named countries. Since September 11, 2001, not a single terrorist attack in the United
States has been perpetrated by aliens from the countries named in the Order. Very few attacks on
U.S. soil since September 11, 2001 have been traced to foreign nationals at all. The
overwhelming majority of attacks have been committed by U.S. citizens. The Administration has
identified no information or basis for believing there is now a heightened or particularized future
threat from the seven named countries. Nor is there any rational basis for exempting from the
ban particular religious minorities (e.g., Christians), suggesting that the real target of the ban
remains one religious group (Muslims). In short, the Administration offers no reason why it
abruptly shifted to group-based bans when we have a tested individualized vetting system
developed and implemented by national security professionals across the government to guard
the homeland, which is continually re-evaluated to ensure that it is effective.
5.
In our professional opinion, the Order will harm the interests of the United States
in many respects:
a. The Order will endanger U.S. troops in the field. Every day, American
soldiers work and fight alongside allies in some of the named countries who
put their lives on the line to protect Americans. For example, allies who
would be barred by the Order work alongside our men and women in Iraq
fighting against ISIL. To the extent that the Order bans travel by individuals
cooperating against ISIL, we risk placing our military efforts at risk by sending
an insulting message to those citizens and all Muslims.
b. The Order will disrupt key counterterrorism, foreign policy, and national
security partnerships that are critical to our obtaining the necessary
information sharing and collaboration in intelligence, law enforcement,
military, and diplomatic channels to address the threat posed by terrorist
groups such as ISIL. The international criticism of the Order has been intense,
and it has alienated U.S. allies. It will strain our relationships with partner
countries in Europe and the Middle East, on whom we rely for vital
counterterrorism cooperation, undermining years of effort to bring them closer.
By alienating these partners, we could lose access to the intelligence and
resources necessary to fight the root causes of terror or disrupt attacks
launched from abroad, before an attack occurs within our borders.
c. The Order will endanger intelligence sources in the field. For current
information, our intelligence officers may rely on human sources in some of
the countries listed. The Order breaches faith with those very sources, who
have risked much or all to keep Americans safe – and whom our officers had
promised always to protect with the full might of our government and our
people.
d. Left in place, the Executive Order will likely feed the recruitment narrative
of ISIL and other extremists that portray the United States as at war with
Islam. As government officials, we took every step we could to counter
violent extremism. Because of the Order’s disparate impact against Muslim
travelers and immigrants, it feeds ISIL’s narrative and sends the wrong
message to the Muslim community here at home and all over the world: that
3

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the U.S. government is at war with them based on their religion. The Order
may even endanger Christian communities, by handing ISIL a recruiting tool
and propaganda victory that spreads their message that the United States is
engaged in a religious war.
e. The Order will disrupt ongoing law enforcement efforts. By alienating
Muslim-American communities in the United States, it will harm our efforts
to enlist their aid in identifying radicalized individuals who might launch
attacks of the kind recently seen in San Bernardino and Orlando.
f. The Order will have a devastating humanitarian impact. When the Order
issued, those disrupted included women and children who had been victimized
by actual terrorists. Tens of thousands of travelers today face deep uncertainty
about whether they may travel to or from the United States: for medical
treatment, study or scholarly exchange, funerals or other pressing family
reasons. While the Order allows for the Secretaries of State and Homeland
Security to agree to admit travelers from these countries on a case-by-case
basis, in our experience it would be unrealistic for these overburdened
agencies to apply such procedures to every one of the thousands of
affected individuals with urgent and compelling needs to travel.
g. The Order will cause economic damage to American citizens and residents.
The Order will affect many foreign travelers, particularly students, who
annually inject hundreds of billions into the U.S. economy, supporting well
over a million U.S. jobs. Since the Order issued, affected companies have
noted its adverse impacts on many strategic economic sectors, including
defense, technology, medicine, culture and others.
6.
As a national security measure, the Order is unnecessary. National security-based
immigration restrictions have consistently been tailored to respond to: (1) specific, credible
threats based on individualized information, (2) the best available intelligence and (3) thorough
interagency legal and policy review. This Order rests not on such tailored grounds, but rather, on
(1) general bans (2) not supported by any new intelligence that the Administration has claimed,
or of which we are aware, and (3) not vetted through careful interagency legal and policy review.
Since the 9/11 attacks, the United States has developed a rigorous system of security vetting,
leveraging the full capabilities of the law enforcement and intelligence communities. This vetting
is applied to travelers not once, but multiple times. Refugees receive the most thorough vetting of
any traveler to the United States, taking on the average more than a year. Successive
administrations have continually worked to improve this vetting through robust informationsharing and data integration to identify potential terrorists without resorting to a blanket ban on all
aliens and refugees. Because various threat streams are constantly mutating, as government
officials, we sought continually to improve that vetting, as was done in response to particular
threats identified by U.S. intelligence in 2011 and 2015. Placing additional restrictions on
individuals from certain countries in the visa waiver program –as has been done on occasion in
the past – merely allows for more individualized vettings before individuals with particular
passports are permitted to travel to the United States.
7.
In our professional opinion, the Order was ill-conceived, poorly implemented and
ill-explained. The “considered judgment” of the President in the prior cases where courts have
4

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deferred was based upon administrative records showing that the President’s decision rested on
cleared views from expert agencies with broad experience on the matters presented to him.
Here, there is little evidence that the Order underwent a thorough interagency legal and policy
processes designed to address current terrorist threats, which would ordinarily include a review
by the career professionals charged with implementing and carrying out the Order, an
interagency legal review, and a careful policy analysis by Deputies and Principals (at the cabinet
level) before policy recommendations are submitted to the President. We know of no
interagency process underway before January 20, 2017 to change current vetting procedures, and
the repeated need for the Administration to clarify confusion after the Order issued suggest that
that Order received little, if any advance scrutiny by the Departments of State, Justice, Homeland
Security or the Intelligence Community. Nor have we seen any evidence that the Order resulted
from experienced intelligence and security professionals recommending changes in response to
identified threats.
8.
The Order is of unprecedented scope. We know of no case where a President has
invoked his statutory authority to suspend admission for such a broad class of people. Even after
9/11, the U.S. Government did not invoke the provisions of law cited by the Administration to
broadly bar entrants based on nationality, national origin, or religious affiliation. In past cases,
suspensions were limited to particular individuals or subclasses of nationals who posed a specific,
articulable threat based on their known actions and affiliations. In adopting this Order, the
Administration alleges no specific derogatory factual information about any particular recipient
of a visa or green card or any vetting step omitted by current procedures.
9.
Maintaining the district court’s temporary restraining order while the underlying
legal issues are being adjudicated would not jeopardize national security. It would simply
preserve the status quo ante, still requiring that individuals be subjected to all the rigorous legal
vetting processes that are currently in place. Reinstating the Executive Order would wreak
havoc on innocent lives and deeply held American values. Ours is a nation of immigrants,
committed to the faith that we are all equal under the law and abhor discrimination, whether
based on race, religion, sex, or national origin. As government officials, we sought diligently to
protect our country, even while maintaining an immigration system free from intentional
discrimination, that applies no religious tests, and that measures individuals by their merits, not
stereotypes of their countries or groups. Blanket bans of certain countries or classes of people are
beneath the dignity of the nation and Constitution that we each took oaths to protect. Rebranding
a proposal first advertised as a “Muslim Ban” as “Protecting the Nation from Foreign Terrorist
Entry into the United States” does not disguise the Order’s discriminatory intent, or make it
necessary, effective, or faithful to America’s Constitution, laws, or values.

5

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10.
For all of the foregoing reasons, in our professional opinion, the January 27
Executive Order does not further – but instead harms – sound U.S. national security and foreign
policy.
Respectfully submitted,
s/MADELEINE K. ALBRIGHT*
s/AVRIL D. HAINES
s/MICHAEL V. HAYDEN
s/JOHN F. KERRY
s/JOHN E. McLAUGHLIN
s/LISA O. MONACO
s/MICHAEL J. MORELL
s/JANET A. NAPOLITANO
s/LEON E. PANETTA
s/SUSAN E. RICE
*All original signatures are on file with Harold Hongju Koh, Rule of Law Clinic, Yale Law School,
New Haven, CT. 06520-8215 203-432-4932
We declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct. [Individual signature pages follow]

6

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EXECUTED this 5th day of February, 2017
/s/
JANET A. NAPOLITANO

2 !lAX 17-35105,
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V
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EXECUTED this 5th day of February, 2017
/s/
SUSAN E. RICE

Exhibit A