National Security

In a series of briefs culminating with a filing in the U.S. Supreme Court, a bipartisan group of more than 50 former senior national security officials argued that the sweeping and indefinite ban on travelers from eight countries, based on their national origin, not only fails to advance the national security or foreign policy interests of the United States, but also undermines those interests. They further argued that the ban did not emerge from the considered judgment of national security and foreign policy officials, and was not based on any credible intelligence and jeopardizes American foreign policy interests by threatening U.S. relations with international partners and disrupting ongoing counterterrorism efforts. For these reasons, the officials argue that the ban does not warrant the Supreme Court’s customary national security deference.

Public Documents

Trump v Hawaii Amicus Brief

Press 

Just Security Podcast: Harold Koh and Cristina Rodríguez on the Travel Ban, Just Security (June 29, 2018)
Trump Travel Ban: How It Affects the Countries, New York Times (June 26, 2018)
Rule of Law Clinic Files Additional Amicus Brief in Travel Ban Case, Yale Law School (April 2, 2018)
Rule of Law Clinic Files Amicus Brief in SCOTUS Travel Ban Case, Yale Law School (September 19, 2017)
Rule of Law Clinic Files Additional Brief Before SCOTUS in Travel Ban Case, Yale Law School (July 18, 2017)
Federal Court Cites Rule of Law Clinic Brief in Travel Ban Decision, Yale Law School (June 13, 2017)
Rule of Law Clinic Amicus Brief Asks Court to Strike Down Revised Travel Order, Yale Law School (March 16, 2017)
Rule of Law Clinic Files National Security Amicus Brief and Declaration, Yale Law School (February 22, 2017)

The Rule of Law clinic filed multiple amicus briefs challenging President Trump’s attempt to ban transgender persons from the military. The briefs were “on behalf of 46 retired military officers and former national security officials . . .

“In the brief, a group of senior retired military officers and former national security officials argue that the ban departs sharply from decades of executive practice involving military policy changes and that the action harms the national security interests of the United States. Signatories include former Secretaries of Defense Chuck Hagel and Leon Panetta, General Stanley McChrystal, General Michael Hayden, and Admiral James G. Stavridis.”

Public Documents

District of Maryland Amicus Brief
D.C. Circuit Amicus Brief

Press

Rule of Law Clinic Files Amicus Brief in Transgender Service Member Ban Case, Yale Law School (November 13, 2017)

In June 2018, the Rule of Law Clinic at Yale Law School and the Center for Constitutional Rights (CCR) released the report “Window Dressing the Muslim Ban: Reports of waivers & mass denials from Yemeni-American families stuck in limbo.” The report documents the effects of the Trump Administration’s Travel Ban on Yemeni nationals seeking immigrant visas to reunite with immediate relatives in the United States.

The ongoing civil war and humanitarian crisis in Yemen has made it impossible for individuals to remain in the country while applying for visas to join family members in the United States. Instead, many applicants have traveled to the east African nation of Djibouti, which lies across the Red Sea from Yemen, to interview for visas. As a result, when the Travel Ban came down, hundreds of families were stranded in Djibouti as a result.

Chief among the report’s findings is that the U.S. government issued pro forma denials of visas despite the Trump Administration’s provision for a case-by-case waiver process in the third iteration of the Travel Ban. In the face of criticism, the Trump Administration created a waiver process in January 2018 to provide humanitarian relief. In practice, however, researchers found that waivers were practically non-existent. For example, researchers documented one case in which a breastfeeding mother was denied a visa while her child received one. In another instance, a father was denied a visa and waiver to meet his U.S. citizen daughter for the first time. Facing further scrutiny and oral argument before the U.S. Supreme Court in the spring of 2018, the U.S. government increased waiver and visa grants. As the report reveals, however, those improvements are fragile, given the lack of transparency and broad executive discretion over the waiver process. The adequacy of the waiver process remains the subject of ongoing litigation, and the Clinic will continue to track these developments closely.

In preparing the report, Clinic members, in partnership with the Center for Constitutional Rights, conducted nearly 30 interviews with Yemeni nationals and Yemeni-Americans in Djibouti in March 2018.

Public Documents

Window Dressing the Muslim Ban: Reports of Waivers and Mass Denials from Yemeni-American Families Stuck in Limbo

Press 

Report Published on Yemeni American Families Stranded in Djibouti Due to Travel Ban, Yale Law School (July 16, 2018)
The Muslim ban expands the cruel policy of family separation, Washington Post (July 3, 2018)
Human Rights Advocates Launch Report Documenting Muslim Ban’s Impact on Yemenis, Center for Constitutional Rights (June 21, 2018)

In November 2017, the Rule of Law Clinic at Yale Law School filed an amicus brief on behalf of 22 former national security officials in support of more than 200 members of Congress, who filed a lawsuit against President Trump for allegedly violating the Constitution’s Foreign Emoluments Clause through his private business entanglements with foreign governments.

The lawsuit, which is before the U.S. District Court for the District of Columbia, involves the interpretation of a constitutional provision at the core of protecting the United States’ national security and foreign policy interests. The Constitution’s Foreign Emoluments Clause states that U.S. officials may not accept value from foreign governments without notifying and receiving approval from Congress.

While taking no position of the facts, the amicus brief argues that the alleged facts—which must be taken as true on a motion to dismiss—are sufficient to state a claim under the Foreign Emoluments Clause. The brief argues that the clause is a vital national security provision, designed to protect U.S. national security and foreign policy interests by requiring congressional notice and approval of the President’s private business dealings with foreign governments. The brief also argues that it is essential to U.S. national security in the modern era that the Foreign Emoluments Clause be read in a manner that encompasses private business dealings with foreign governments.

The Rule of Law Clinic also filed the amicus brief in support of the State of Maryland and the District of DC, who likewise sued President Trump for violations of the Emoluments Clauses in the Constitution.

Public Documents

Amicus Brief

Press

Rule of Law Clinic Files Brief in Foreign Emoluments Case, Yale Law School (November 13, 2017)

In December 2017, the Rule of Law Clinic filed an amicus brief on behalf of fourteen former national security, intelligence and foreign policy officials, including Former CIA director John Brennan; former director of national intelligence James Clapper; former director of the National Security Agency Michael Hayden, and former U.S. ambassador to Russia Michael McFaul, offering their broad perspective, informed by careers spent working inside the U.S. government on foreign policy and intelligence matters, on the history of Russian active measures practices, and how Russia uses local actors inside a country to facilitate disinformation campaigns. The amicus brief was filed on behalf of neither party in a lawsuit brought by individuals whose private information was hacked in the 2016 presidential election  against the Donald J. Trump for President campaign and Roger Stone.

Public Documents

Brief