SCOTUS Backs Muslim Travel Ban; Critics Liken It to Decisions on Segregation & Japanese Internment

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In a series of extraordinary legal decisions Tuesday, the Supreme Court has upheld President Trump’s so-called Muslim travel ban, and a federal judge in San Diego has ruled immigration officials must stop separating immigrant children from their parents at the border and must reunite all parents and children within 30 days. On Tuesday, the Supreme Court ruled 5 to 4 to uphold Trump’s travel ban, which prohibits people from entering the United States from five majority-Muslim countries—Iran, Libya, Yemen, Syria and Somalia—as well as people from North Korea and some government officials from Venezuela. In a scathing dissent, Justice Sonia Sotomayor condemned the ban as “harrowing” and said it was “motivated by hostility and animus toward the Muslim faith.” She also said the decision to uphold the ban involved “ignoring the facts, misconstruing our legal precedent and turning a blind eye to the pain and suffering the proclamation inflicts upon countless families and individuals, many of whom are United States citizens.” After the ruling was announced, protesters gathered outside the Supreme Court to condemn the decision. We speak to Lee Gelernt, deputy director of the ACLU Immigrants’ Rights Project; Linda Sarsour of MPower Change; and Diala Shamas of the Center for Constitutional Rights.

Transcript
This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now! I’m Amy Goodman, with Juan González.

JUAN GONZÁLEZ: Well, in a series of extraordinary legal decisions Tuesday, the Supreme Court has upheld President Trump’s so-called Muslim travel ban, and a federal judge in San Diego has ruled immigration officials must stop separating immigrant children from their parents at the border and must reunite all parents and children within 30 days. On Tuesday, the Supreme Court ruled 5 to 4 to uphold Trump’s travel ban, which prohibits people from entering the United States from five majority-Muslim countries—Iran, Libya, Yemen, Syria and Somalia—as well as people from North Korea and some government officials from Venezuela.

AMY GOODMAN: In a scathing dissent, Justice Sonia Sotomayor condemned the ban as “harrowing” and said it was, quote, “motivated by hostility and animus toward the Muslim faith.” She also said the decision to uphold the ban involved, quote, “ignoring the facts, misconstruing our legal precedent and turning a blind eye to the pain and suffering the proclamation inflicts upon countless families and individuals, many of whom are United States citizens,” unquote.

After the ruling was announced, protesters gathered outside the Supreme Court to condemn the decision. This is Darakshan Raja, founder of Justice for Muslims Collective.

DARAKSHAN RAJA: No court decides the parameters of our community’s humanity. We will continue to resist. We will continue to fight. And for the American people and for our allies and accomplices: It is also your role to help us overturn the legality of these decisions. We know that they’re inhumane. We know that they are racist. We know that they’re discriminatory. We cannot allow for these decisions to be upheld. So, please, we’re asking for your solidarity, to stand with us in this particular moment.

AMY GOODMAN: That was Darakshan Raja, founder of Justice for Muslims Collective.

For more, we’re joined by three guests. Linda Sarsour is with us, director of the first Muslim online organizing platform, MPower Change, co-authored [sic] a new report titled “Window Dressing the Muslim Ban: Reports of Waivers and Mass Denials from Yemeni-American Families Stuck in Limbo.” That report actually was by CCR and Yale University, by Diala Shamas, our next guest, as well. And Lee Gelernt, deputy director of the ACLU Immigrants’ Rights Project. He argued the first challenge to President Trump’s travel ban order.

Lee, let’s begin with you. You were the first there. What does this Supreme Court ruling mean?

LEE GELERNT: Yeah, it’s disappointing. It’s not completely unexpected. When the court issued the stay of the lower court’s ruling a while back, I think, you know, people were expecting it. But it’s still a really bad day. I think the disconnect between the judicial opinion and what most people understand as a matter of common sense, that President Trump was trying to keep Muslims out of the country, you know, I think, years from now, people will look back and say, “Wow! I don’t know how this decision came.” It’s a bad day.

JUAN GONZÁLEZ: And I wanted to ask you particularly about the dissenting opinion of Justice Sotomayor, who’s really carving out a niche for herself as the passionate and eloquent defender of a liberal perspective on the court. She spent minutes reciting all the quotations of President Trump—

LEE GELERNT: Right.

JUAN GONZÁLEZ: —where he actually clearly said this is a Muslim ban, and yet asked, “Why would the court want to—want to ignore this?” I want to read a part of what she said: “Taking all the relevant evidence together, a reasonable observer would conclude that the Proclamation was driven primarily by anti-Muslim animus, rather than by the Government’s asserted national-security justifications. Even before being sworn into office, then-candidate Trump stated that 'Islam hates us,' warned that '[w]e’re having problems with the Muslims, and we're having problems with Muslims coming into the country,’ promised to enact a 'total and complete shut down of Muslims entering the United States,' and instructed one of his advisers to find a 'lega[l]' way to enact a Muslim ban. The President continued to make similar statements well after his inauguration, as detailed above.

“Moreover, despite several opportunities to do so, President Trump has never disavowed any of his prior statements about Islam. Instead, he has continued to make remarks that a reasonable observer would view as an unrelenting attack on the Muslim religion and its followers.”

LEE GELERNT: Yeah, very strong. I think there’s no other way to look at what the president was saying. And that’s what’s so artificial about the opinion, to say, “We’re not going to give that any weight, and we’re just going to sort of have wholesale deference to the administration.”

The administration hid behind this multiagency task force they set up, but the outcome was preordained. President Trump set it up to give him the conclusion he wanted. And, you know, I don’t see any other way, as Justice Sotomayor said, a reasonable observer could look at what happened, from his campaign statements through the third iteration of the travel ban, and conclude anything other than he was trying to keep Muslims out of the country.

AMY GOODMAN: Linda Sarsour, your response?

LINDA SARSOUR: I was expecting more of like a partial ban, something—I was expecting like a half, which would have still been a Muslim ban. So I was pretty devastated to see that the Supreme Court upheld the entire ban.

But I think what gives me solace is that the Supreme Court could decide what is legal, but they can’t decide what is just and is moral. I mean, slavery was legal. Japanese interment was legal in this country. Segregation was legal. So, for me, I don’t put my eggs all in the Supreme Court basket. I think we’re going to continue to organize and resist, and particularly this year around electoral politics, which I don’t believe take us all the way to liberation, but do stop some of the hemorrhaging and bleeding in our communities.

But the Muslim community is directly impacted. And it is a policy of this administration to separate black and brown families, whether it be at the border or through a travel ban or a Muslim refugee ban. And I think people need to make those connections, that this is part of a large white supremacist agenda that is being implemented point after point. Like, he is literally winning almost on every single issue putting forth—took healthcare from us, gave us a tax scam, separating mothers and children at the border, banning Muslims. Like, these are things that he was promising, you know, and right now he’s using children as a leverage point to get his $25 billion for the wall.

Like, people have to wake up, that we may have a momentum in the resistance, but this administration is winning in the highest courts of this land. And even on the order from San Diego to stop the separation of families and also to reunite families, how is that going to happen? With what tracking system do they have? And, in fact, does this administration care about court orders? Do we actually believe that they’re going to follow court orders? I don’t believe that. So I think we still have to be vigilant in this moment.

AMY GOODMAN: I want to bring into this discussion Diala Shamas, staff attorney at the Center for Constitutional Rights, co-author of this new report titled “Window Dressing the Muslim Ban: Reports of Waivers and Mass Denials from Yemeni-American Families Stuck in Limbo.” Justice Stephen Breyer cited the report in his dissent, writing, “Another report similarly indicates that the U.S. Embassy in Djibouti, which processes visa applications for citizens of Yemen, received instructions to grant waivers 'only in rare cases of imminent danger,' with one consular officer reportedly telling an applicant that '[e]ven for infants, we would need to see some evidence of a congenital heart defect or another medical issue of that degree of difficulty that … would likely lead to the child's developmental harm or death.’” Talk about this report that CCR did with Yale that came out last week, because the majority said, you know, in severe cases, people will be taken care of and let in.

DIALA SHAMAS: What the majority did was even worse, actually. Unfortunately, what we’re seeing here is the way that the majority handled our report, as well as the litany of other evidence that was before it, whether it was evidence of the Trump administration’s animus, anti-Muslim bias leading up to the issuance of the proclamation, or the litany of evidence that it has since the proclamation went into effect, and that we were all able to prove, those of us who were observing it, how it was unfolding on the ground, completely ignored that evidence, a significant body of evidence, and relied and deferred entirely to the executive. And, ultimately, what that means is, where we are is, as long as the president can articulate a national security justification, however thin it might be, it will be able to get away with whatever it wants.

And seeing the highest court of our country essentially fall for this administration’s gaslighting is exactly why our team and a team of Yale law students traveled to Djibouti, in order to be able to call them out, in a studied way, based on facts, on their misstatements and misrepresentations of the waiver process. The waiver process is one of the many things that the administration has relied on in order to justify what is essentially a Muslim ban. And we were able to show, as many others have also since shown, and, you know, consular officers actually said on the record, that the waiver process is a sham. It is only there in paper. It is only something that the administration has put in the proclamation. But, in practice, the way it’s being rolled out on the ground in places like Djibouti, it is not actually a process. Everybody has been receiving pro forma mass denials. And the result is, after yesterday’s decision, that families in Djibouti, that we met with, that were holding their breath waiting for a decision from the Supreme Court to reunite with each other, after having been separated, in many cases, for years, are now left with the difficult decision of going back to Yemen, a war-torn country, or being separated indefinitely at this point.

AMY GOODMAN: Can you give us the example of a family?

DIALA SHAMAS: Absolutely. I have just been texting on WhatsApp with a gentleman who is in Alabama, and his wife Sharifa is actually in Djibouti with her two youngest children, who they’re—all four of her children are U.S. citizens, mind you. So she is the wife of a U.S. citizen and the mother of U.S. citizens. She is also 4 months pregnant, or she was 4 months in March. And she was just waiting for the—what she was hoping was a positive Supreme Court decision, to be able to rejoin her husband in Alabama. Her two oldest children have had to come to the U.S., because she couldn’t care for all four of them in her situation in Djibouti.

Right now, she doesn’t know what to do. She has returned to Yemen, because she just couldn’t stay in Djibouti. Djibouti is a very extremely expensive country, and the conditions there are extremely harsh. And they don’t really know what to do as a family anymore. I mean, put yourself in a position when someone is seeking advice of what to do next, and you’re talking them through what are extremely painful personal decisions that they have to now make. And all of this is a situation that, although was predictable, is one that is shocking to be faced with now, especially in light of the indefinite nature of this decision.

JUAN GONZÁLEZ: Linda, I wanted to ask you—you mentioned Japanese internment as an example of something that was legal but was not just. I want to go back to Sonia Sotomayor, where she referenced this. She said, quote, “By blindly accepting the Government’s misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security, the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one 'gravely wrong' decision with another.”

LINDA SARSOUR: Mm-hmm, absolutely. I mean, we are going to look back and be ashamed to live in 2018 and to allow this to happen on our watch. And even right now, this administration is doing one of the biggest investments in building basically children prison camps on military bases in the United States.

I don’t know, Juan and Amy, what else has to happen. What else does this administration have to do for people to really wake up and understand that we are literally living under fascism? We have an administration who believes that they are above the law, that, in fact, they will—they have pushed policy after policy outside the bounds of the Constitution. And I don’t know what else—I mean, I’m worried that something more terrible could happen, and has happened historically in our country, and the American people are sitting back and waiting for that horrible thing to happen.

And we are not waiting. We are resisting. In fact, I will be joining hundreds of women on Thursday engaging in the largest women mass civil disobedience that this country has ever seen, because we’re not going to sit back. And rallying and marching under fascism is just not working, and we have to find other ways to kind of up the ante with our activism and make some sacrifices.

AMY GOODMAN: And Democracy Now! will be covering protests on the border tomorrow as part of this national action. Lee Gelernt, who is Fred Korematsu? Explain the significance of what has happened. I mean, the U.S. acknowledged they were wrong with Japanese internment—

LEE GELERNT: Right.

AMY GOODMAN: —interning more than 100,000 Japanese. This man whose case went to the Supreme Court.

LEE GELERNT: Right. So, as I think everyone knows, the Japanese were interned during World War II. The case went to the Supreme Court. The administration then put forward national security justifications. The court accepted them wholesale and allowed the internment. We now know that those justifications were a sham.

Chief Justice Roberts said, “Well, the court of history has shown that that opinion was wrong.” But I think the really hard thing is to recognize it in real time. The chief justice should have recognized, in real time now, that this was just as bad, or if—I don’t think we need to make a comparison about which is just as bad, but that this was bad and wrong and that the national security justifications were a sham, and recognize—not wait for the court of history 30 years from now. But I think that’s what will happen. The same thing will happen: We’ll look back on this decision the same way we look back on Korematsu as wrong.

JUAN GONZÁLEZ: And what happens now in terms of the ban, now with the court decision?

LEE GELERNT: Right.

JUAN GONZÁLEZ: Is there any possibility for a review or changing of the policy at all?

LEE GELERNT: Well, you know, obviously, the administration can always pull back, and Congress could do something right now. That doesn’t look likely. The court cases will continue. We’re evaluating our options. But, you know, I don’t want to sugarcoat it. The decision was bad.

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