The declaration came as the state of Washington, which initially sought the restraining order, formally responded to the administration’s appeal. The government’s brief is due later Monday.
While the declaration by the officials is not part of the formal briefing in the case and judges have no obligation to read it, it is clearly meant to counter the government’s argument that continuing to block Trump’s executive action will cause great harm to the nation’s security. It perhaps also has the public relations function of responding to Trump’s Twitter claim that Judge James L. Robart was putting the “country in such peril” and that he and the court system should be blamed “if something happens.”
The basic theme of the declaration was that it is Trump’s order, not any judge’s ruling, that is putting the country in peril.
Numerous “friend of the court” briefs have been filed in the case as well, the latest by 97 major tech companies.
The former officials implicitly took strong issue with the Trump administration’s claim that a similar approach had been taken by President Barack Obama during his administration.
Others signing the declaration in addition to Kerry, Albright and former secretary of defense and CIA director Panetta were John E. McLaughlin, deputy director of the CIA from 2000 to 2004 and acting director in 2004; Lisa O. Monaco, former assistant to Obama for homeland security and counterterrorism; Michael Morell, a career CIA official who has served as deputy director and acting director; former homeland security secretary Janet Napolitano; and Susan E. Rice, Obama’s ambassador to the U.N. and national security adviser.
“We all agree that the United States faces real threats” from terrorist networks and that vetting is necessary, they said in the filing.
“We all are nevertheless unaware of any specific threat that would justify the travel ban” established by the executive order. Rather, they said, they viewed it as one that “ultimately undermines the national security of the United States rather than making us safer.”
Specifically, they said, the order will “endanger U.S. troops in the field” who “fight alongside allies in some of the named countries who put their lives on the line to protect Americans.”
It will “disrupt key counterterrorism, foreign policy and national security partnerships that are critical to our obtaining” intelligence necessary to combat terrorist groups like the Islamic State, they declared, and “endanger intelligence sources in the field” by “breaching faith” with them.
They described Trump’s order as one of “unprecedented scope,” adding: “We know of no case where a President has invoked his statutory authority to suspend admission for such a broad class of people.… 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.
“There is no national security purpose for a total bar on entry for aliens from the seven named countries,” they wrote. “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 9/11 “have been traced to foreign nationals at all. The overwhelming majority of attacks have been committed by U.S. citizens.… In our professional opinion, the Order will harm the interests of the United States in many respects.”
The full declaration can be read here.
The state of Washington’s latest brief is available here.