Thursday, March 16, 2017


Rule of Law Clinic Amicus Brief Asks Court to Strike Down Revised Travel Order

The Rule of Law Clinic at Yale Law School filed an amicus brief on behalf of 40 senior former national security officials on March 15, 2017 in support of the Iraqi Refugee Assistance Project’s lawsuit against the President of the United States. The lawsuit, brought in Maryland federal court, challenges a revised executive order that temporarily suspends the entry of certain refugees and travelers from a group of six predominantly Muslim countries.

The new executive order, which was signed on March 6, 2017, amends a prior order that was struck down by the courts in February following a series of lawsuits around the country. In the Rule of Law Clinic amicus brief, a bipartisan prominent group of high-ranking national security experts argue that the revised order has the same fatal flaws as the original order and will harm the U.S. both abroad and at home.

“The March 6 Order continues to impose a blanket ban on entry from the listed countries that cannot be justified on national security or foreign policy grounds,” states the brief. “The few changes that were introduced in the March 6 Order do not cure this discriminatory intent, or suddenly provide a persuasive basis for the Order on national security or foreign policy grounds.”

The amicus brief further states that the executive order actually stands to harm the country’s national security and foreign policy interests by endangering U.S. service members as well as essential counterterrorism, foreign policy, and national security partnerships.

“The Order’s disparate impact on Muslim travelers and immigrants also 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,” the brief states.

The national security experts argue that the executive order will also hurt the U.S. economically.

“Since the initial Order was issued, dozens of affected companies have noted the damaging impact the travel ban can be expected to have on strategic economic sectors including defense, technology, and medicine,” states the brief.

The plaintiffs in the lawsuit are the Iraqi Refugee Assistance Project (IRAP), a group that was founded by Yale Law School Alumni Becca Heller ’10 and has a number of Yale Law School alumni as staff attorneys. IRAP is being represented by the ACLU, whose Deputy Legal Director is Cecillia Wang ’95. Phil Spector '00, a visiting lecturer in law teaching the Rule of Law Clinic, helped to draft the brief. Justin Cox ’08, of the National Immigration Law Center (NILC) is arguing the case before Judge Chuang along with Omar Jadwat of the ACLU.

More than a dozen Yale Law School students in the clinic participated in the drafting and research of the brief. The amicus brief is the fourth filing by the new Rule of Law Clinic since it launched in January 2017. (Read more about the last filing).

The 40 signatory national security officials include five former YLS graduates, James B. Steinberg ’78, James C. O’Brien ’88, Jonathan Finer ’09, Jake Sullivan ’03, and David S. Cohen ’89. It also includes high-profile Yale College alumni John Kerry ’66 (Yale College) and Samantha Power ’92 (Yale College).

In concluding, the brief backs the plaintiffs’ argument in asking the court to strike down the March 6 executive order.

“Allowing the March 6 Order to take effect would wreak havoc on our nation’s security and deeply held American values and would threaten innocent lives,” states the brief. “Blocking the Order while the underlying legal issues are being adjudicated would not jeopardize national security. It would simply preserve the status quo ante, still subjecting travelers to all the rigorous legal vetting processes that are currently in place.”

The Rule of Law Clinic, which was founded this semester, focuses on maintaining U.S. rule of law and human rights commitments in four areas: national security (e.g., torture, drones, Guantanamo); antidiscrimination (especially against religious and ethnic groups); climate change (maintaining U.S. commitments under the Paris Climate Agreement); and democracy promotion (voting rights, redistricting). Projects include litigation, policy advocacy, and strategic planning matters. The instructors are Sterling Professor of International Law and former State Department Legal Adviser Harold Hongju Koh, William O. Douglas Clinical Professor Michael Wishnie ’93, Lecturer in Law Hope Metcalf, and Spector, a former State Department Senior Adviser to the Legal Adviser.