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Wednesday, February 22, 2017
Rule of Law Clinic Files National Security Amicus Brief and Declaration
When the Rule of Law Clinic (“ROLC”) first formed in January 2017 with the goal of countering policies that threaten the rule of law, no one knew exactly what litigation might ensue.
In the clinic’s first few days, 25 participating Yale Law students prepared to respond to potential violations and threats to the rule of law by conducting extensive legal and policy research on matters in areas including national security, anti-discrimination, democracy promotion and climate change. The current clinic team includes four student directors and two Ph.D. candidate instructors who had recently returned to Yale Law School from circuit court clerkships.
Then on January 27, 2017, when President Donald Trump issued an executive order suspending entry to the United States for several months of foreign nationals from seven countries, refugees from all countries, and indefinitely barring all Syrian refugees, the clinic sprang into action.
Many of the students in the clinic began work on an amicus brief on behalf of a bipartisan group of high-profile national security officials in the case of Darweesh v. Trump, in the U.S. District Court for the Eastern District of New York (“EDNY”). The case had been filed by two asylum seekers with valid visas who had been denied entry at JFK. They were being represented by the Worker & Immigrant Rights Advocacy Clinic, a separate Yale Law School clinic operating as part of the Jerome N. Frank Legal Services Organization (LSO) law firm. Relying on the national security officials’ expertise, the brief would make the case that the Order could not be justified on national security or foreign policy grounds.
As other lawsuits were springing up around the country, the EDNY case was overtaken by an immediate appeal by the Trump Administration of a parallel case brought to the Ninth Circuit, in response to a complaint filed by the states of Washington and Minnesota challenging the Order as unconstitutional. On February 9, 2017, the Western District of Seattle issued a temporary restraining order preventing the government from enforcing key sections of the Order. The Administration immediately appealed, seeking a stay of the lower court’s restraining order. The court gave the parties two days to file briefs.
Yale Law School graduates involved in the Washington case connected Harold Hongju Koh, Sterling Professor of International Law and founder of the ROLC, to Washington Solicitor General Noah Purcell, who would argue the states’ case before the Ninth Circuit. Purcell asked if a filing by the national security leaders could be ready for the appeal. Working with ROLC students and fellow instructor Phil Spector ’00, Koh developed an abridged declaration that 10 national security experts—including former Secretaries of State Madeline Albright and John Kerry, former Secretary of Defense Leon Panetta, former National Security Advisor Susan Rice, former Secretary of Homeland Security Janet Napolitano, and four former Directors or Acting Directors of the CIA, including Michael Hayden and John McLaughlin—could all agree upon.
“Filing the joint declaration required an incredibly fast turnaround,” explained Mitzi Steiner ’17, one of the clinic’s student directors. “We had less than 36 hours over Super Bowl weekend to write the declaration, but we knew we had to meet the deadline since our clients’ expertise was critical to the case.” Yale law graduates Jim O’Brien ’88, Jake Sullivan ’03, and Jon Finer ’09, all contributed to the effort to quickly produce the joint declaration. A number of the national security declarants photographed their signatures with their phones and emailed them for the time-sensitive submission to the court. Days later, the Ninth Circuit unanimously denied the Administration’s emergency stay motion. The opinion made specific reference to the concerns that were raised in the joint declaration and found that the Administration had failed to rebut them.
A few days after that, the clinic filed the declaration in a similar case in the U.S. District Court for the Eastern District of Virginia. On February 13, 2017, Judge Brinkema granted a preliminary injunction against the Order, quoting extensively from the declaration and observing that “contrary to the national security concerns recited in the EO, the only evidence in the record on this subject is a declaration of 10 national security professionals who have served at the highest levels of [government] through both Republican and Democratic administrations, and at least four of whom ‘were current on active intelligence regarding all credible terrorist threat streams directed against the [United States] as recently as one week before the issuance of the’ EO.”
The clinic was “thrilled” with its early success, reflected Zoe Weinberg ’18, adding “it has been immensely rewarding to contribute to this effort.”
Meanwhile, clinic students had been continuing their work on the amicus brief to be filed in the EDNY. On February 16, 2017, New Haven law firm Wiggin & Dana (represented by Yale Law School graduates Jonathan Freiman ’98 and Tahlia Townsend ’05) and the Rule of Law Clinic filed the amicus brief on behalf of 35 signatories. As Clare Ryan ’13, one of the clinic’s supervisors recalls, “it has been a true collaboration with students and lawyers working around the clock to make sure that we can put forward the best arguments and evidence refuting the Administration’s claims.”
Signatories included the 10 officials who had signed the initial declaration, in addition to 25 other prominent national security officials, including Ambassador Samantha Power, former U.S. Permanent Representative to the United Nations, former Deputy Secretaries of State Tony Blinken, Bill Burns and Jim Steinberg ’78, former Director of National Intelligence James Clapper, Ryan Crocker and Chris Hill (two former Ambassadors to Iraq) and Robert Ford, former Ambassador to Syria. The brief was filed on February 16, 2017, and on that same day, the Administration announced that it would not proceed with the January 27 Executive Order, but would instead substitute a narrowed Order.
For many students in the clinic, the litigation has been an early and intense experience about how to vindicate national values. As Ben Alter ’18, notes “it was a privilege to help these national security experts—Democrats and Republicans—carry their message to the court. The Order’s categorical immigration restrictions offend our laws and values and do not represent a sensible response to the threat from foreign terrorism.”
Incredibly, all of this has happened while the ROLC has only been in existence for a month. The clinic now plans to remain involved in other litigation related to the Executive Order and other national security cases that may arise. The clinic is also hard at work on other matters related to the antidiscrimination, democracy promotion, and climate change work streams.
For Koh, who led litigation on behalf of Haitian refugees detained at Guantanamo 25 years ago, the anniversary of which has been profiled in the legal academy and popular media, the clinic’s early litigation success comes full circle. As Koh notes, “[w]hen the rule of law has been threatened, Yale Law School has always been there: from the McCarthy blacklist, to Brown v. Board, to the Pentagon Papers, to Haitian and Cuban Boat People, to military discrimination against LGBTs, to 9/11, to illegal immigration raids, and now this, which is neither the first or last thing our law school will do.” The clinic aspires to continue in this path.
“Ultimately, the goal of this clinic is to help ensure that the rule of law prevails,” said Clare Ryan. “I am hopeful that it will.”