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 Jonathan Corbett, Civil Rights Advocate

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Transcript of Oral Arguments in Muslim Ban Case Shows Department of Justice Entirely Lost on How to Defend; Trump Fires Acting Attorney General

darweesh_transcriptBefore U.S. District Judge Ann Donnelly issued a temporary restraining order against
Donald Trump and the U.S. Customs and Border Patrol from enforcing a “Muslim ban” — prohibiting travel by green card holders and individuals with refugee status from 7 Muslim-majority countries — a hearing was held in which both attorneys for plaintiff Darweesh and attorneys from the Department of Justice for the government appeared.  Early media reports indicated that the U.S. Attorneys were entirely unprepared and had no defense for Trump’s executive order.  And, yesterday, Trump fired Acting Attorney General Sally Yates, allegedly after “she defiantly refused to defend his executive order closing the nation’s borders to refugees and people from predominantly Muslim countries,” according to the New York Times.

I noticed on the docket today (PDF or live version if you have a PACER account) that the transcript of these oral arguments was ready but not available over the Court’s Web site.  I managed to obtain a copy anyway which I’m now publishing for you all.

Darweesh v. DHS – Transcript of Oral Arguments on Motion for TRO, 1/28/2017 (.pdf)

Some highlights:

  1. There were five attorneys from the government there — four from the U.S. Attorney’s office and one from U.S. Customs & Border Patrol.  Not a single one of them, at any point in the 21 pages of transcript, even remotely attempted to argue that Trump’s order was lawful and the plaintiffs could not succeed on the merits.
  2. The test for whether to issue a stay is a balancing of whether: 1) the requesting party is likely to succeed on the merits, 2) the requesting party will suffer irreparable injury, 3) the opposing party will be injured, and 4) the public’s interest will be harmed.  The only one the government even tried to address was irreparable injury, by saying that Darweesh was already released and therefore couldn’t be harmed.  The judge was not interested.
    not_so_moot
  3. But, the 3 attorneys for the plaintiff from the ACLU successfully argued that they would likely meet the requirements to proceed as a class-action, and thus were arguing on behalf of everyone who was detained or threatened with deportation under Trump’s new order — so Darweesh being released didn’t end the case.
  4. The judge made clear that her ruling applied to all affected by Trump’s order.  Thus, if at other airports across the country CBP was still detaining people, they were clearly in violation of the court’s order.  And for those who feel that Trump’s order is totally constitutional, the judge specifically ruled that it was likely that plaintiffs could prove otherwise:
    so_classy
  5. The judge at times was clearly irritated with the government’s lack of response to her questions, and at one point told them that they would not be able to speak any longer.say_no_more_fam

Apparently, Trump is upset that his Acting Attorney General refused to defend his executive order.  But the real question is: What defense could they have plausibly given, especially given that apparently Trump gave the Department of Justice no notice of his plans?

If you want your executive agencies to work with you, they have to be kept in the loop.  Even then, however, it will be a hard sell for any attorney to walk into a courtroom with a straight face and say that the executive order by the guy who said he’d ban Muslims isn’t about banning Muslims, but just happens to be directed at 7 almost-all-Muslim countries.

I don’t envy anyone in the U.S. Attorney’s office’s civil litigation division right now.  They’re not getting paid enough for this shit.


“Jon Corbett is a civil rights advocate known for filing the first lawsuit against the deployment of TSA nude body scanners, as well as defeating the body scanners live in ‘How to Get ANYTHING Through TSA Nude Body Scanners.’  Presently a law student, he continues to advocate for travel and privacy rights.  Twitter: @_JonCorbett, Web:https://professional-troublemaker.com/

Fighting for civil rights in court is expensive!  Want to contribute to the fight against government assholery? Donate via PayPal, Venmo, Chace QuickPay, Bitcoin, or check

DHS Wants Tourists To List Their Facebook Accounts to Enter Country

If you’re a non-U.S. citizen entering the U.S. with a passport issued by one of our friends in Europe, you can enter “without a visa” by completing an “Electronic System for Travel Authorization” form online and paying a fee (which, if you think about it, is really no different from getting a visa… it’s just you print a piece of paper instead of get a mark in your passport).

The questions on the application are mostly the typical stuff you’d expect we might ask those entering our country, but DHS now proposes to add one more:

“Please enter information associated with your online presence—Provider/Platform—Social media identifier.”

What’s wrong with that?  Well, I’ve explained in a letter opposing the proposed rule that there are many problems with this.  The first is that it’s not even clear what one would need to disclose, and sometimes disclosure may be a troubling basis for discrimination:

Do I need to think back to the MySpace account that I created in 2003 and have not used since 2006?  If I have a username for a chat room or message board, does that count?  What about Tinder?  Or perhaps I use the popular dating app for gay men known as Grindr.  Do you think it’s reasonable that I would then need to indirectly disclose my sexual preference as a condition of entering this country?  Or perhaps I use the Web site for connecting individuals with sexual fetishes known as FetLife.  Will you then review my FetLife account and determine if my preferred variety of kinky sex is acceptable?  If it is uncovered that I enjoy being dominated by women in latex bodysuits while ball gagged, will a CBP officer consider me the same level of security risk as one who prefers long walks on the beach and seeks a partner who loves Jesus?  Speaking of Jesus, many people use social networking related to their religion (Christian Mingle, JDate, etc.).  Now you’d like to know my religion, too?

Not particularly worried since you’re a U.S. citizen and therefore won’t have to personally deal with this problem?  Think again…

When the U.S. government implements a stupid rule affecting foreign visitors, other countries implement retaliatory rules on U.S. citizens seeking to enter their territory. …  Many other countries require visa fees only from U.S. citizens (or higher visa fees only for U.S. citizens), or fingerprinting only for U.S. citizens, in retaliation for what we do to their citizens.  I don’t want to have to share my Facebook details in order to travel, and if you implement this rule, it is all but certain that I shall have to do so as other countries decide to implement retaliatory rules.

It would be nice if DHS, for once, could do something that would actually improve our safety rather than play around with technology that they know nothing about.

[Edit – Online comments are now allowed from the public!  Let DHS know what you think!]

DHS Purchases 2,700 Tanks for Domestic Use

http://www.thegatewaypundit.com/2013/03/obama-dhs-purchases-2700-light-armored-tanks-to-go-with-their-1-6-billion-bullet-stockpile/

If we do not start making changes now, you will see these in your neighborhood. Again, that timeframe to act is now. Please share, call your reps (much harder to ignore phone calls than e-mails), and demand change.

DHS “Office for Civil Rights and Civil Liberties” Admits It Is A Farce

I mean, they didn’t say that explicitly, but you be the judge: the Office for Civil Rights and Civil Liberties of the U.S. Department of Homeland Security was asked to review the policy of DHS’s Customs and Border Patrol regarding conducting suspicionless searches of electronic media (generally, your laptop) at border crossings. This policy means that any time you enter the country, the government feels it has the right to look through all the documents on your hard drive, even if there’s no reason at all to suspect that you might be engaged in criminal activity.

The review concluded that “imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefit.”

Do you see a problem here with an office, whose job it is to ensure that an agency respects the civil rights of the people, that does not understand how requiring the government to have a reason before it paws through the photos of your kids and wife (yeah, those photos!), reads through all of your e-mail, and makes sure the music you’re listening to and books you’re reading are not “suspicious,” would have a civil liberties benefit? DHS does this, ostensibly, to prevent the trafficking of child pornography and corporate espionage. I’m no expert on either subject, but it would seem to me that if one were to engage in either crime, wouldn’t they simply upload their contraband to a secure location on the Internet, where they can easily download it at their destination, rather than travel the globe with it sitting on their hard drive?

It seems clear to me that the alleged desired benefit of these searches is unobtainable since they are easier to circumvent than the TSA’s body scanners. It seems clear to me that this is a new technique to spy on the citizens, collect data (“Oh, Mr. Corbett here has files on his hard drive relating to aviation security… let’s put him in a database!”), and chip away at the Fourth Amendment. It seems clear to me that this furthers the government’s, and particularly the Obama administration’s, desire to fellate the copyright industry — from its absurd extrajudicial prosecution of Megaupload, to its attempts to pass SOPA and related laws, to these hard drive searches at borders that have already seen travelers questioned about whether they illegally downloaded songs and movies.

While this battle is fought on the legal front, you can protect your data now: free software such as TrueCrypt can scramble the data on your computer such that, if done right, it cannot be unscrambled without the correct password, even by the government (and, even if the government can decrypt your hard drive, they won’t: to admit that they know how to break the world’s strongest encryption algorithm would be giving away a secret that is worth much more than prosecuting you). As U.S. Courts of Appeals have refused to compel people to provide passwords, for the time being, encryption allows you to force the government to respect your rights.

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