Sure, I had “Donald Trump Attempts to Cancel US Democracy Itself” on my 2020 Bingo Card. I even had the excuses he would use (mail-in voting/Coronavirus) and the method of notification (tweet). But, let’s be honest, so did pretty much everyone else.
It is, at the same time, an unprecedented and frightening attack on the fundamentals of American Democracy, plunging the US one giant step closer to dictatorship, and a move so predictable I could have written most of this post a few months ago and just filled in the blanks with details today.
This morning, US President Donald Trump tweeted:
With Universal Mail-In Voting (not Absentee Voting, which is good), 2020 will be the most INACCURATE & FRAUDULENT Election in history. It will be a great embarrassment to the USA. Delay the Election until people can properly, securely and safely vote???
In case you were wondering, no, he can’t, on his own, postpone a Presidential Election, or any election, for that matter. Unlike parliamentary democracies such as Canada, where Minority Governments are a thing, US election dates are fixed.
The Presidency is a four-year term, no more, no less, period. That’s why, when a president is impeached, steps down, or passes away before the four years are up, the office and all of its powers transfer to the next one in line instead of holding an election when it’s not the appropriate time.
The only way to move the voting day, even slightly, is with a law passed in both the House of Representatives and the Senate and then signed by the President. Changing the date a new president takes office or an incumbent president starts their second term, on the other hand, would take a constitutional amendment. (As a Canadian, thanks to Cenk Uygur of TYT for this info, which apparently most Americans learn in high school civics.)
Say what you will about Nancy Pelosi and her sometimes lackluster legislative opposition to Trump, there’s no way she lets him get away with this one in the House. Meanwhile constitutional amendments take years, not the weeks, and the election is fewer than 100 days away, so also a no-go.
So Why Worry?
So, if Trump can’t legally pull off what he suggested in his tweet, why worry? Putting aside the fact that legality doesn’t seem to be that much of an obstacle for him, the real concern is the tweet itself.
While it’s structured like a typical Trump toilet tweet, there are some noticeable differences:
He only uses all caps twice to highlight specific words.
He says there is a difference between absentee voting and mail-in voting (there isn’t) in an attempt to preempt a common argument that his opposition to mail-in voting is hypocritical because he votes absentee himself and wrong because US troops stationed overseas have been doing it for years.
There are no glaring grammatical errors.
It was posted at 8:46am, a good time to be in the morning news cycle, and not at 3am like other tweets.
All this leads me to believe that someone else read it and edited it before he sent it. Maybe someone else even wrote it. This is Trump on-prompter written to sound like Trump off-the-cuff.
It’s not the unhinged ramblings of a troll. It’s a political test balloon.
They’re seeing how many people will go along with subversion of democracy either before or after the election and laying the groundwork for a challenge to the election results if Trump loses. And it looks like he might very well lose.
Sure, the polls in 2016 were saying that Hillary Clinton would win, but not by as much as they are saying Joe Biden will win this time. Also not in the same places – Trump’s poised to lose the suburbs hard.
Biden’s strategy of staying at home, poking his head out occasionally and letting Trump destroy himself in the spotlight seems to be working. Subverting American Democracy itself may be the current president’s last option.
We all knew it would come to this, but that doesn’t make it any less scary.
November 20, 2018, can be seen as a sad day in the US and for women around the world in the fight against Female Genital Mutilation (FGM). A US federal judge Bernard Friedman ruled against banning a practice that harms millions of young women globally.
His ruling found a 1996 US federal law banning FGM unconstitutional, allowing the two doctors charged under it to go free. This can only be seen as a great defeat for the millions of young girls and women who have suffered due to this harmful act.
Female Genital Mutilation is the act of changing or altering the female genitals for non-medical reasons but rather cultural ones. However, it is seen across the globe as a violation of human rights against girls and young women alike .
FGM, or Female Circumcision as it is also called, is a practice that goes back thousands of years in many countries, communities and in many cultures around the world. When it started is unknown, but the root of it is to control female sexuality, conception and to continue to build a strong inequality between both sexes.
FGM/C may differ depending on the countries and regions but the results are still the same. Women are subjected to a lifetime of problems regarding their physical and mental health. Many lose their desire for sexual pleasure, have complex deliveries often resulting in Cesarean section; along with a number of different medical problems, that may arise from the use of unsterilized equipment. This practice can have serious complications leading to the death of some young girls and women as a result.
There are many types of FGM/C; but there are three forms most often practiced:
The first consist of the partial or total removal of the clitoris and the prepuce. The circumciser pulls the clitoral glans with her thumb to remove it.
The second form is complete or partial removal of the inner labia and clitoris. The clitoris is the organ that allows the female to enjoy pleasure during sexual activities.
The final form, which is considered to be the most severe of the three, is the removal of the total female genitalia. Once done, the vagina is then sewed closed with the exception of a hole often the size of a pencil tip for the passage of menstruation and urination.
Not only is the act rather harsh, but girls and young women are more likely to get infections and countless other problems because of unsterilized equipment. They are often faced with diseases such as fistula and numerous other disorders and infections.
It is estimated that between 125-150 million young women have been subjected to this practice. It happens all over the world, though predominately in African countries.
Although, FGM/C can be harmful to a women’s health not all women would like for this practice to end. Some people in many countries and regions where this act is practiced consider it a rite of passage or a celebration of coming of age for young women.
FGM/C is sometimes compared to male circumcision. Male Circumcision is the act in which the male foreskin that is covering the head of the penis is removed from the male penis.
Both of these customs can cause physical and mental pain and a lifetime of complications. However the female version of this custom is deemed, by many, to be much more severe because, unlike their male counterparts, many females who have this procedure done never experience sexual pleasure or any sensation other than pain in their vaginal area.
The males that are circumcised can experience sexual sensation and any pain they feel usually dissolves after a while. Whereas many females who have experienced the procedure have a lifetime of pain and complications. Some women who experience this procedure feel as though they are missing part of their body.
In many countries and regions where the act of FGM/C has become illegal, there are classes and lectures on the consequence of FGM/C. When young women attend these classes, they are becoming educated on the severity of this practice.
Unfortunately, not all young women have a choice in this matter. This is why the recent US ruling on FGM/C can be seen as a sad one and as a step backwards especially since organizations such as UNICEF, Plan Canada and numerous others are working tirelessly to educate communities where FGM/C is still practiced about the effects on young girls and women around the world.
* Featured image by World Bank Photo Collection via Flickr Creative Commons
Chelsea Manning is a former U.S. Army intelligence analyst. She leaked thousands of military and diplomatic documents to WikiLeaks about civilian deaths and the abuse of detainees by the Iraqi forces under American supervision during the Iraq War.
She was arrested back in 2010 when she was known as Bradley Manning. In 2013 she was convicted of six breaches of the Espionage Act, though she was acquitted of the charge of Aiding the Enemy.
For her crimes, Manning was sentenced to thirty-five years in prison. She served seven years before (now former) President Obama used his powers of presidential clemency to commute her sentence in 2016. Despite the commutation, when Chelsea Manning attempted to visit Canada this past Monday, she was denied entry.
At first glance, denying Manning entry into Canada feels absurd. Yes, she was convicted of a crime, but her sentenced was commuted.
That’s like a pardon, right? She should be allowed into Canada, right?
Unfortunately, it’s a lot more complicated than that.
The issue of whether or not convicted criminals are admissible to Canada is where the subjects of criminal and immigration law cross. For the purposes of this article, we’ll focus primarily on convicted criminals from the United States who attempt to enter Canada.
Fortunately, Chelsea Manning herself generously posted on Twitter a copy of the letter she was given upon being denied entry by Canadian border agents:
The letter says that she was denied because of paragraph 36(1)(b) of the Immigration and Refugee Protection Act, a federal law that defines admissibility and inadmissibility to Canada.
Article 36 of the law refers specifically to inadmissibility based on serious criminality. Some of the criteria under which someone would be considered inadmissible to Canada on grounds of serious criminality include:
Being convicted in Canada of a crime with a maximum jail term of ten years or
Being convicted of a crime outside of Canada that, if committed in Canada, would have resulted in a custodial sentence of at least ten years or
Being convicted of an indictable offense in Canada or
Being convicted of at least two indictable offenses not arising out of a single occurrence or
Being convicted of an offense that would have been considered an indictable one in Canada
Chelsea Manning was denied entry into Canada because as per the letter she received, her conviction made her inadmissible.
The crime she was convicted of – leaking classified government information under the American Espionage Act – has a Canadian equivalent: treason. Under the Canadian Criminal Code, the maximum penalty for treason is life imprisonment. As the rules state, if the crime you were convicted of abroad would carry a sentence of ten or more years in jail if you’d committed it in Canada, you’re inadmissible for entry into the country.
Canada and the United States generally do not recognize each other’s pardons.
An American pardon does not mean a conviction will be invisible to border agents. Though the information they find will likely indicate the pardon and might tell border agents that the person has rehabilitated themselves, it’s no guarantee they’ll get into Canada.
Chelsea Manning did not receive a pardon from Barack Obama, her sentence was commuted.
A pardon would mean her crime was forgiven and it would be as if she’d never committed it.
According to the US Department of Justice which handles requests for presidential clemency, a commutation of a sentence does not change the fact that a person was convicted of a crime, nor does it imply innocence, or remove any barriers a person would have as a result of their conviction.
All a commutation does is reduce the person’s sentence, either partially or completely. In the case of Chelsea Manning, she served seven years in prison instead of the thirty-five prescribed by her sentence.
Manning may be out of jail, but the other consequences of her criminal conviction remain.
That said, Chelsea Manning has promised to appeal the decision of Citizenship and Immigration Canada, but she will have a tough road ahead. Her crime is considered “serious criminality” under Canadian law, and according to the Immigration and Refugee Protection Act, there is no way to appeal a decision of inadmissibility on grounds of serious criminality.
According to Buzzfeed, a source close to Manning said she would appeal on the grounds that there is really no equivalence to the US Espionage Act in Canadian Law or the law of other countries besides the US.
There is, however, a way to pre-empt a potential refusal at the Canadian border for criminality reasons.
Citizenship and Immigration Canada has a process called “Criminal Rehabilitation” that allows foreign nationals with criminal convictions to apply for individual criminal rehabilitation allowing them to enter Canada. It should be noted, however, that even if Manning had filled out such an application, she would not currently be approved due to its selection criteria, which requires that at least five years have passed since the completion of her sentence.
Travel of any kind can be a nuisance, but it is doubly so if you come a long way only to realize you’re being barred from your destination due to a past criminal conviction. Annoying as they are, some argue that rules regarding criminality and admissibility to Canada are essential to national security. Others, like Canadian free speech attorney Jameel Jaffer, who spoke with The Intercept on the subject, feel there is no way Manning could possibly pose a threat to Canadian security.
Chelsea Manning is a hero to some and a traitor to others. The issue with her coming to Canada seemed not to do with her crimes, but with the fact that she was convicted. She may be able to come Canada some day, but for now it looks like she’ll have to wait five years.
The notion of pardons has made headlines recently with the Orange President’s pardoning of former Arizona Sheriff Joe Arpaio.
Arpaio is involved in a racial profiling in a case in which his patrols targeted and imprisoned Latinos in an attempt to crack down on illegal immigration. He was ordered to stop but Arpaio told his subordinates he planned to continue business as usual. He was convicted of contempt of court and facing six months in jail…
That is until the Orange Racist decided to pardon him on August 27, 2017.
This article is not about the fact that the US President, Arpaio, and the US Attorney General are clearly America’s senile, racist grandpas who should have been left in nursing homes ages ago…
It’s about pardons and will look at how pardons work in the US and Canada. For the American model, I’ll focus on the Presidential Pardon as that is the one the Orange President is most likely to abuse as the Russia scandal unfolds.
Record Suspension in Canada
In Canada, a pardon is formally called a “record suspension” and despite what many think, it does not wipe your slate clean of any crimes you were convicted of in the past.
A record suspension means that your criminal record will be kept separate from your other criminal records. That means it will be removed from the Canadian Police Information Centre (CPIC) database and won’t come up on a search. The purpose of this is to allow those convicted of a crime that have successfully rehabilitated themselves to reintegrate into society by opening up educational and employment opportunities they would not otherwise have access to.
Criminal record suspensions are governed by the Criminal Records Act. Though it only applies to records kept by federal organizations, most provincial and municipal criminal justice bodies will also restrict access to a federally suspended record once informed that a suspension has been ordered.
As per the Act, the Parole Board of Canada (“the Board”) has exclusive jurisdiction and “absolute discretion” to order, refuse or revoke a record suspension. Anyone convicted of an offense under Canadian law can apply to the Board for a record suspension, but there are a few catches.
First, you cannot apply for a record suspension until a certain time has elapsed after the expiration of your sentence. If your sentence was more than six months long or your fine greater than five thousand dollars, or if you were dismissed from the Canadian Forces – army, navy, or air force – and detained for a period of six months or had a punishment of over two years as per the scale of punishments set out in the National Defense Act, you must wait ten years before applying for a record suspension. If the offense was punishable on a summary conviction – a lesser type of penalty in which the maximum punishment is five thousand dollars or six months in prison – or is an offense other than those covered by rules for servicemen, you must wait five years before applying for a pardon.
It should be noted that there are some types of offenders who are ineligible for a record suspension regardless of how much time has elapsed since their conviction and sentence. People who have been convicted of sexual offenses towards minors as well as the trafficking of minors are usually ineligible for record suspensions. There is, however, an exception to this rule, and this where the Parole Board’s discretion comes in.
A person convicted of the above offenses can apply for a record suspension but will only get it if the Parole Board is convinced that the former offender was not in a position of authority towards the victim nor was the victim in a situation of dependency on the offender at the time of the offense. In addition, the Board must also be convinced that the offender did not use violence, coercion or intimidation against the victim. The offender also needs to be less than five years older than the victim.
It’s not just people who commit sex crimes against kids who cannot get a pardon in Canada. Any person convicted of more than three offenses prosecuted by indictment in which they were sentenced to two years or more in prison are also ineligible without exception.
If you successfully get a record suspended, it does not erase the conviction or the record of it. It simply sets it aside and can be revoked or cease to have effect if you’re convicted of a new crime, found to “no longer be of good conduct”, found to have lied, provided misleading information, or hidden info on your application, or if you weren’t eligible for a pardon when you applied. If you were convicted of a sex crime against minors but managed to get a record suspension under the Parole Board’s discretion, your file will still be flagged under the CPIC in the off chance that you try and volunteer or find a job working with a vulnerable group such as the elderly or children.
Pardons in the US
In the US, the Constitution grants the president the power to “Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment”. That means that he can pardon just about anyone for any criminal offense. As in Canada, the pardon can be used only for criminal offenses.
With a pardon, the president forgives the commission of the offense. According to the US Supreme Court, pardons can be issued at any time “after [the commission of an offense], either before legal proceedings are taken, or during their pendency, or after conviction and judgment”.
It is customary for the President to grant pardons based on the recommendations of the Department of Justice (DOJ), which is charged with reviewing applications for presidential clemency. Their standards for assessing applications are according to the applicant’s post-conviction conduct, character, and reputation, the seriousness of the offense and how recently it was committed, the offender’s acceptance of responsibility for the offense and sense of remorse and atonement, “the need for relief” and official reports and recommendations. It should be noted however that the president is under no obligation to follow the DOJ’s recommendations nor can the DOJ restrict the president’s power to pardon under the US constitution.
In order for a pardon to work, a warrant of pardon must be physically delivered to the person granted it. The recipient then can either accept it or reject it. If it is rejected, the courts cannot force the person to take it.
Unlike in Canada where the record is simply set aside, a presidential pardon has the effect of ending the punishment and “obliterates both conviction and guilt which places the offender in a position as if he or she had not committed the offense in the first place”.
Though presidential pardons appear absolute, there are many legal experts in the US challenging this because of Sheriff Arpaio.
Protect Democracy, an activist group fighting the President’s violations of legal norms recently sent a letter to the DOJ arguing that the pardon was granted in violation of its limits set out in the constitution. The group argues that the Constitution of 1787 is limited by later amendments including the Fourteenth Amendment guaranteeing equal protection before the law, and the Fifth Amendment guaranteeing due process.
In Arpaio’s case the Fifth Amendment comes into play because his actions leading to the conviction routinely violated Americans’ right to due process before the law and that in order to enforce this rule, the courts must be able to restrain government officials breaking them.
Whether the challenge succeeds or not remains to be seen, as there is no legal precedent for doing so.
As a rule, pardons do more good than bad. They allow people who made mistakes they’ve atoned for to move on and become productive members of society. As in anything, there is a danger when the power to pardon is absolute and vested in only one person, especially when that person is a senile, racist, whining misogynist.
It will be up to the American people and especially American jurists to recognize that what happens with Arpaio will be one more step in determining whether they are truly committed to democracy and rule of law or have resigned themselves to rule by an incompetent dictator.
On Monday the Orange Administration released a new Executive Order. We all knew it was coming, for no sooner had courts struck down the original Muslim ban when the White House promised a new and improved version. It was supposed to be signed and released last week, but then something strange happened.
In his first joint-address to Congress, the Lint-Covered-Cheeto President surprised everyone by acting like a gentleman. There was no blustering, there was just a man-child giving a speech. Reporters hailed his behavior as being truly “presidential” and the White House opted not to ruin the wave of good faith by releasing the new ban immediately afterward.
No matter what the new travel ban says, it will never outshine the atrocities committed in the first ban’s name. It will never outshine the baby who was denied entry for life-saving surgery (a lawmaker intervened on the child’s behalf when the story leaked so she was saved in the end), or the child separated from his mother for hours, or the old lady who was denied a wheelchair under the enforcement of the first Executive Order. It will never undo the widespread outrage from ordinary citizens and the legal community.
Now it’s time to look at the new Executive Order.
This order replaces the previous one and provides something the first order was sorely lacking: clarifications.
The first Executive Order was so vague no one seemed to know how to enforce it. As a result, people in positions to abuse it did and people with valid documents to enter the US from permanent residents to workers to famous authors and ex diplomats with legit visas were denied or delayed.
The new Executive Order provides a list of people deemed exceptions to its travel restrictions. Among the exceptions are lawful permanent residents, foreign nationals with valid visas or other documents allowing them to legally enter the US, people with dual citizenship, and those on diplomatic visas. Also exempt are foreign business people and workers, foreign nationals granted asylum or refugee status, children needing urgent medical care, and people legally admitted to the US to stay with family.
The new Order also does something the other did not: it condemned Islamophobia.
Unfortunately, the new Order does it in the most petulant way possible by defending the previous Executive Order with a none-too-subtle “we didn’t mean it that way!” response to the displays of Islamaphobia that had ensued.
Section 1 of the new order says:
Executive Order 13769 did not provide a basis for discriminating for or against members of any particular religion. While that order allowed for prioritization of refugee claims from members of persecuted religious minority groups, that priority applied to refugees from every nation, including those in which Islam is a minority religion, and it applied to minority sects within a religion. That order was not motivated by animus toward any religion, but was instead intended to protect the ability of religious minorities — whoever they are and wherever they reside — to avail themselves of the USRAP in light of their particular challenges and circumstances.
This petulant tone is consistent throughout the beginning of the new Executive Order as section 1 is full of justifications and excuses for the first ban.
On the bright side, it also includes a subtle acknowledgment that the White House would never succeed in the courts had they continued to try and enforce the first Executive Order. The provision that replaces the first order with the current one says that it is “in order to avoid spending additional time pursuing litigation”.
People generally back out of legal disputes to due amicable resolutions, lack of funds, or the fact that they know they can’t win. The former two do not apply here.
Then there’s the list of countries banned.
One would hope that a new improved travel ban would include limitations on some of the countries that actually produce terrorists. Those states widely acknowledged as such include Saudi Arabia, Egypt, the UAE, Lebanon, Turkey, and Kuwait. Sadly, none of these countries are on the list of limited countries as the new Order maintains limitations on Syria, Iraq, Iran, Yemen, Libya, and Somalia from the previous version.
However, this new Order tries to back up this list with facts cherry-picked in part from the Department of State’s Country Reports on Terrorism 2015 (June 2016). The Order does not state where the rest of its justifications come from.
It maintains the discretion of the Secretaries of State and Homeland Security to make exceptions to the ban and like the previous Order, gives them extra responsibilities. The Order requires them with the Director of National Intelligence to review and identify countries from which more information is needed about their people before they are admitted to the US. Once they make the list, they have to ask the countries for information and if they don’t get it in a certain amount of time, the country’s people won’t be admitted to the US.
The new Executive Order was an opportunity for the White House to redeem itself. They could have limited nationals from countries that actually produce a lot of terrorists. They didn’t. They could have used actual facts to back their rules and claims, but they didn’t.
The White House did however do one very important thing which to specify who the ban does not apply to, leaving less room for racists and xenophobes with rubber gloves and metal detectors to arbitrarily bar or detain people they don’t like. In that sense, this new order is new and improved.
In movie treason trials, a person facing a cruel, usually male, judge and screaming prosecutors is accused of betraying their country while they plead innocence and national loyalty. Sometimes the trial will end in a hanging, other times it will end by firing squad, and still others end with electrocution. Rarely is the accused set free.
In real life, treason cases are a lot more complex.
Despite the enhanced vigilance of Canadian and American law enforcement in the face of terrorism, people are rarely prosecuted for treason.
Since Canadian and American criminal laws have their roots in the British legal tradition, it’s time to look at how we and our southern neighbors define the crime and how it should be prosecuted.
In Canada, treason is defined in our Criminal Code.
There are two types of treason: regular, called simply treason and high treason.
High treason is defined as committing one or all of the following acts if you are a Canadian citizen:
Killing or attempting to kill the Queen (Canada’s de jure head of State) or causing bodily harm leading to her “death or destruction”
Maiming, wounding, imprisoning, or restraining the Queen
Making or Preparing for War Against Canada
Assisting an enemy at war with Canada or assisting any armed forces Canadian forces are fighting regardless of whether those armed forces are at war with Canada
Treason is defined by one or all of the following acts:
Using force or violence to overthrow the Canadian government or the government of a province
Communicating “without lawful authority” scientific or military information or sketches, plans, or documents of a scientific or military character that you knew or ought to have known could be used by an agent of another state against Canada
Conspiring to commit the above and manifesting an intention to go through with it via an overt act
Conspiring to commit high treason and manifesting an intention to commit it by an overt act. Conspiring with a person to commit treason is considered an overt act.
The law not only defines the crime itself and the penalties, but also who can be convicted of either kind treason and under what circumstances.
According to the Criminal Code, the rules on treason apply to Canadian citizens.
A crime of high treason can be committed while in or outside of Canada, as can acts of regular treason.
A conviction for high treason carries the penalty of life in prison.
The penalty for regular treason is a bit more complex.
If you’re convicted of using force or violence against Canadian government or province with the intent to overthrow it, it’s life in prison. The penalty is the same for communicating military or scientific information, documents etc. knowing or having ought to know that they could be used by another country or even conspiring to do so and manifesting intention to carry it out by an overt act while Canada is at war with that country. If you communicate or conspire to communicate this stuff when Canada is not at war, the penalty becomes a maximum of fourteen years in jail.
The penalties for treason are heavy in Canada as in most countries, so the rules of evidence and procedure are extremely strict in these cases.
Proceedings against people accused of violent attempts to overthrow the government have to take place three years or less after the alleged crime was committed. For overt acts of treason, the words of information expressing the overt act have to be laid under oath before a justice within six days of the alleged overt act, and a warrant for the person’s arrest has to be issued within ten days of that.
There can be no conviction for treason on the evidence of only one witness unless that witness’ testimony is corroborated my material evidence.
Only two people in Canadian history have been tried and convicted of treason.
The first is the Métis leader Louis Riel, who was hanged in eighteen eighty five.
The lesser known, Kanao Inouye aka the Kamloops Kid, was responsible for interrogating and torturing Canadian Prisoners of War in Japanese occupied Hong Kong during the Second World War. He was convicted of war crimes and sentenced to death by a British war crimes court, but his lawyer successfully appealed on the grounds that Inouye was a Canadian citizen and therefore could not be considered a war criminal. Inouye was instead tried for treason and hanged by the British Hong Kong Supreme Court in 1947.
In the United States, the laws regarding treason are similar. As the nation was born in defiance of the British Monarchy which had been known to charge people of the crime willy nilly, the crime of treason is clearly and strictly defined in the US Constitution.
Article III, section 3 of the constitution defines treason as:
“…levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”
As in Canada, the rules for a conviction on the charge of treason in the US are strict. American law requires the testimony of two witnesses to the crime or a confession in open court to convict someone of treason.
As in Canada, convictions for treason are rare. Most civil war veterans, for example, were granted amnesty by the US government instead of facing treason charges. In some cases, such as that of Iva Toguri D’Aquino, the trials and investigations were corrupt and ultimately resulted in presidential pardons and apologies.
The penalty for treason in the US can be imprisonment or death.
With the implications of treason so heavy, it’s no wonder people are rarely charged with the crime. However, with the revelations of the Orange Administration’s willful conspiring with the Russian government to corrupt their elections and push an agenda hurting the American people, the only question left is whether law enforcement in the south will grow a pair and prosecute those clearly guilty of the crime.
On January 27, 2017 the President of the United States signed an Executive Order, one of his first acts as leader of the free world. Its premise is to protect Americans from the alleged threat of terrorists pretending to be refugees in order to get into the United States.
There has been a lot of discussion about this Order. Some people are calling it a Muslim ban, while others are justifying it as a legitimate and reasonable approach to American security. What no one seems to be doing is actually reading the Order itself.
Whoever wrote the Executive Order deserves a medal for literature. It is subtle and eloquent in a way the man who signed it will never be.
Does it ban Muslims outright?
What the Executive Order does is suspend immigrant and non-immigrant entry into the United States from certain countries “of Particular Concern”.
Refugees from Syria are denied entry until the president says otherwise. People from countries designated by the Secretary of State and Secretary of Homeland Security as having repeatedly provided support for international terrorism are also banned, but for a period of ninety days.
This list (so far) includes Iraq, Iran, Sudan, Libya, Yemen and Somalia. Saudi Arabia, which is known for encouraging the extremist Islamic beliefs adopted by terrorists, is suspiciously absent from this list. Whether this is due to the President’s business dealings with the Kingdom or vested American interest in maintaining relations with them is unclear.
The Order also changes the criteria for refugee claims, prioritizing those “made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality”.
As most of the refugees are from Muslim-majority countries, most of those seeking safety in the United States are Muslim.
Though the Order says that “the United States should not admit those who engage in acts of bigotry or hatred (including ‘honor’ killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation”, it does not offer any protection to people fleeing persecution due to gender, sexual orientation, or race. Being a member of a religious minority seems to be the only exception to the ban.
The Order speaks of these new rules as necessary in part to “reduce investigative burdens on relevant agencies”. However, it calls for a flurry of security reports to be provided by the Secretary of State, Director of Homeland Security, and the Directors of the FBI and of National Intelligence and says that the Secretaries of State and Homeland Security can admit individual refugees on a case-by-case basis. All this sounds like MORE of a burden, not less.
Is this Executive Order legal?
Not according to the former acting Attorney General Sally Yates. A holdover from the Obama administration, she was asked by the new administration to stay on until the president’s nominee for Attorney General, Jeff Sessions, is confirmed by the Senate.
Last night, Yates told the US Department of Justice not to defend the Executive Order in the courts. In a letter to Justice Department lawyers, she said:
“I am responsible for ensuring that the positions we take in court remain consistent with this institution’s solemn obligation to always seek justice and stand for what is right…At present, I am not convinced that the defense of the executive order is consistent with these responsibilities nor am I convinced that the executive order is lawful.”
She is not the first to acknowledge the Order as potentially illegal.
On January 28, 2017, a Federal Court in New York presided by Judge Ann Donnelly granted an Emergency Motion of Stay Removal to Hamid Khalid Darweesh, an Iraqi who’d risked his life acting as interpreter to the US army during the Iraq war, and Haider Sameer Abdulkhaleq Alshawi, another Iraqi who was en route to reunite with his wife and child in the US. Both were detained at the airport under the Executive Order and with the help of the American Civil Liberties Union, fought back.
In her decision, Judge Donnelly said
“The petitioners have a strong likelihood of success in establishing that the removal of the petitioner and others similarly situated violates their rights to Due Process and Equal Protection guaranteed by the United States Constitution.”
Many other federal courts have followed suit, granting stays blocking the Executive Order from being enforced.
When you read the US Constitution, something the president has clearly never done, it is easy to understand why the motions were granted.
Article I, Section 9 prohibits laws that single out any particular group for punishment without trial. The Fifth Amendment goes even further, stating that no person should be “deprived of life, liberty, or property without due process of law”.
As far back as the Second World War, American courts have recognized the danger of Executive Orders like these. In 1944 in Korematsu v. The United States, the Supreme Court said that
“All legal restrictions which curtail the civil rights of a single racial group are immediately suspect… courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.”
The President has rambled on about the danger of foreign terrorists masquerading as refugees, but neither he nor his administration have presented any numbers to back this up. Instead, he fired Sally Yates for refusing to enforce an Executive Order that is legally unenforceable, leaving his administration without anyone with the legal authority to sign warrants authorizing the surveillance of the foreigners he fears so much.
The reaction of protesters, public officials and the American courts are reasons to hope for all who hate xenophobia, for as comedian Aziz Ansari recently pointed out:
“Change doesn’t come from presidents. Change comes from large groups of angry people.”
If the protests and lawsuits are any indication, change is coming.