Washington V Justice: The Do Over.

This post is a follow on from; http://watchitdie.blogspot.co.uk/2017/02/washington-v-justice.html

Last night (9/2/17) the 9th Circuit Court of Appeal handed down its ruling on the Temporary Restraining Order (TRO). A pdf of that ruling can be downloaded here; http://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/09/17-35105.pdf

In short what the Court has done is look at the submission of Washington and Minnesota (the States) and laughed it off as ridiculous.

However the Court has then made a new submission on the States behalf. They've done this by invoking an obscure element of the Constitution. Article 2, Section 3.

This allows Federal Courts to consider legal cases but also political controversies that are not included in any current case. For example the judgement goes on to discuss the question of whether a Muslim ban would be permissible under the 1st amendment freedom of religion clause.

The President's executive orders are demonstratively not a Muslim ban. For example it does not include Egypt. Egypt is the most populous Muslim Arab nation and has a significant terrorism problem.

As such if the executive order was intended to use the threat of terrorism to bring in a Muslim ban by the backdoor it would be very easy to include Egypt. The fact Egypt has not been included demonstrates that the executive orders place Muslim's rights above the threat of terrorism. Except in cases where the threat of terrorism is at the most extreme.

Therefore the Court has decided not to examine the executive orders themselves but a wider, almost philosophical, question that the President's political opponents has falsely assigned to the executive orders.

Deciding to hear the matter as a political controversy rather than a issue of law has allowed the Court to circumvent the questions of harm and standing.

Hearing the matter as a political controversy rather than a legal challenge allows the Court to apply a lower test of; "Harm." Previously the States needed to demonstrate that not issuing a TRO would cause; "Irreparable Harm." Now they merely need to demonstrate that it would cause; "Harm."

The example the ruling cites is that students at Washington or Minnesota University could be harmed if a guest lecturer from one of the seven nations was prevented from travelling to deliver a lecture. In itself this argument lacks credibility.

Tuesday's (7/1/17) hearing was not a physical hearing. Instead it was conducted as a teleconference with the Judges and lawyers spread across the US. It was also broadcast live globally both on traditional television and on the Internet.

Within efforts to protect the US from terrorism a significant figure is Anwar al-Awalaki. This US born member of Al Qaeda in the Arabian Peninsula (AQAP) al-Awalaki has long used the Internet to deliver sermons or lectures urging English speakers to take up arms and carry out lone-wolf terror attacks.

Anwar al-Awalaki was killed in Yemen on September 30th 2011 (30/9/11). However his lectures continue to live on and continue to inspire Americans to conduct terror attacks against the US. The April 15th 2013 (15/4/13) Boston Marathon bombings being a particularly famous example.

If in this modern age even death does not prevent someone delivering lectures to those who wish to hear them a travel ban certainly won't.

The ruling also uses the example of a foreign student who would be forced to take a sabbatical from their studies due to the ban. Obviously the university could not charge that student for tuition during that enforced sabbatical. Therefore the university would be harmed financially. However being denied payment for a service that has not been provided is not normally considered an example of; "Harm" under law.

The definition of; "Harm" rather than; "Irreparable Harm" is so broad though that it could include alarm, distress or otherwise hurt feelings caused by the matter being discussed in the public sphere.

Therefore in order to demonstrate standing the States merely have to demonstrate that there is a US citizen within their jurisdiction who is aware that the executive orders exist.

Even with this lower test the Court still needs to balance any potential for hurt feelings against the risk granting the TRO could lead to serious harm in the form of people being killed or seriously injured in terror attacks.

On this point the Court has declared that what is known as the threat profile to the US has not changed since the last time immigration vetting procedures were reviewed. This is simply not true.

The last review of vetting procedures was carried out in late 2015 following the San Bernardino terror attack. In October 2016 an operation was begun to liberate the Iraqi city of Mosul from the Islamic State of Iraq and the Levant (ISIL).

This represents a significant set-back for the group. ISIL have responded to this by significantly increasing their use of terrorism in an effort to get revenge.

In January 2017 alone ISIL carried out 71 suicide bomb attacks within Iraq. These attacks were separate from the areas of direct combat such as Mosul and Anbar province. It may not have been reported on CNN but I certainly remember the first two weeks of 2017 in Baghdad. It was absolutely brutal.

At the same time that ISIL have intensified their efforts to use refugee/irregular migrant routes to dispatch fighters to nations such as the US in order to carry out attacks. Just last week the Quilliam foundation published an open source report detailing ISIL's use of sleeper cells within refugee camps to pay the smuggler fees of people who wish to carry out terror attacks.

These are the same camps that the US is importing refugees from.

I have also heard whispered rumours that ISIL itself has recently moved into the people smuggling business. Both to recoup lost revenue and to facilitate terror attacks. Obviously though that type of investigation requires the sort of covert intelligence gathering that prevents it from being discussed openly.

It is on this issue of intelligence gathering that the Court crossed the line from doing everything in its power to assist the States with their submission into openly abusing their position.

In Tuesday's hearing there was a discussion between the Judges and the Department of Justice lawyer over whether this type of secret intelligence could be reviewed in open Court. Obviously it can't be but it can be reviewed in closed Court by Judges with appropriate security clearance.

The ruling simply tears up what was said in Court and replaces it with what the Judges would have liked to have heard said in Court. It cites precedent that national security decisions can be reviewed in Court. However at no point has anyone claimed they can't be.

I suppose this could have been a genuine mistake on the part of the Judges. After all these type of fast exchanges can be hard to follow and perhaps an element of senility has begun to creep in with the 85 year old Judge Canby.

If that is the case then the Judges simply need to rescind their ruling, apologise for wasting everybodies time with their mistake and consider if they are any longer fit to continue as Judges.

However if they have wilfully tampered with evidence we need to take a serious look at the possibility of criminal proceedings against them.

After changing the submission and misinterpreting the evidence the Court has decided that the TRO will stay in place.

The reason for this is pretty obvious. The bulk of the executive orders expire after 90 days. This is not enough time for the matter to be brought before the Supreme Court of the United States (SCOTUS). SCOTUS could decided to hear that matter as an almost redundant philosophical point but that is unlikely.

SCOTUS is currently short of one Judge with Trump's appointee Neil Gorsuch still needing to be confirmed by Congress. The confirmation of Gorsuch would present a significant problem for both the Democrat Party and the city of San Francisco - where the TRO case was heard.

Gorsuch is what is known as a; "Textualist." This means that he interprets the Constitution as it is written.

Democrats and even San Francisco Republicans much prefer what are known as; "Adjudicants" such as Ruth Bader Ginsburg. These are people who believe that they can interpret the Constitution not as it is written but as how they wish it were written.

I personally think that no adjudicant should ever be allowed to serve on SCOTUS. The purpose of a written Constitution is to act as a check on the power of politicians. If it can be reinterpreted to suit the political whims of the day then those protections are seriously undermined.

The ruling actual provides an example of the issue. It talks about the fifth amendment protecting life, liberty and property. A textualist would interpret this to mean what it says - people cannot be killed without due process. However an adjudicant would imagine the word; "family" appears in the sentence meaning the right to family life not just the right to life is protected.

This issue of a right to family life comes up frequently in discussion of illegal Hispanic immigration to the US. Particularly the issue of so-called; "Anchor Babies." It will certainly come up as San Francisco and other California cities fight the Federal government over their description of themselves as; "Sanctuary Cities."

So what the San Francisco Court has done last night is wildly abuse its authority in an attempt to block Neil Gorsuch's appointment to SCOTUS so the Sanctuary City case goes their way.

This is unacceptable behaviour by any Court but the San Francisco Court has decided to do it at the expense of US national security.

What makes it even worse is that yesterday  they were presented with an alternative which would still allow them to try and rig SCOTUS in their favour but do so with threatening US national security. Beyond the threat that this type of Judicial abuse of power presents to the US that is.

Earlier yesterday a woman named Garcia de Rayos was deported from the US prompting violent protests and arrests in Arizona. Despite living in the US illegally and committing further crimes whilst in the US Ms de Rayos is married to a US citizen and has children who are US citizens.

Therefore Ms de Rayos' case would have provided Sanctuary Cities like San Francisco with ample opportunity to test the issue of a right to family life in front of SCOTUS without allowing people from camps were ISIL are known to be operating and planning attacks into the US.

So you could almost say of the activist Judges;

They were warned.

They were provided with an explanation.

They were even provided with an alternative.

Yet still they persisted.

12:20 on 10/2/17 (UK date).