On September 24, 2017, President Trump released a presidential proclamation with an extended and more detailed version of the travel ban that his administration has been constructing for months. This new version follows as a result of the worldwide review the president requested in March as part of Executive Order (E.O.) 13780, which resulted in an in-depth evaluation of nearly 200 countries “with respect to their identity-management and information-sharing capabilities, protocols, and practices”, as well as whether or not they “have a significant terrorist presence within their territory”. Per the outcome of this review along with advice from the Secretaries of State and Homeland Security, as well as the Attorney General, President Trump decided that there are a small number of countries that do not meet the criteria, and may therefore pose a risk to “the security and interests of the United States and its people”. With that in mind, the president has imposed travel restrictions on individuals from the following countries: Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen. Additional restrictions have been placed on Iraq and Somalia, albeit to a lesser extent than the aforementioned countries.

As previously mentioned, this new order is far more comprehensive than the administration’s original travel ban, which was released without warning on January 27, 2017, causing chaos at airports across the country and sparking protests against the ban’s controversial nature. While the original ban only targeted individuals from predominantly Muslim countries, North Korea, Venezuela, and Chad have now been added to the list, while restrictions on travel from Sudan have been dropped. Opponents of the Trump administration nicknamed the original order the “Muslim ban”, following in part from Trump’s comments on the campaign trail when he called for a ban on travel for all Muslims to the United States in the wake of the San Bernardino shooting in December 2015. Multiple legal battles ensued questioning the constitutionality of the so-called Muslim ban, resulting in its nullification by multiple circuit and district courts. A revised version of the ban eventually made it to the Supreme Court, which allowed the ban to take partial effect in June and agreed to hear further arguments in October. However, the Supreme Court abruptly cancelled these oral arguments on September 25th, shortly after the newer, broader ban was released.

Although the new ban is country-specific, for the most part it restricts entry from both immigrants and non-immigrants, including those on business or tourist visas. Valid student and exchange visitor visas will not be affected. The administration specifically seeks to restrict travel from nationals with immigrant visas since, should national security issues arise, they are more difficult to remove from the country once they become lawful permanent residents. According to the proclamation, this “heightens the costs and dangers of errors associated with admitting such individuals”. Any immigrant or nonimmigrant in the United States, or those that have or qualify for a visa before the applicable effective date will not affected. Waivers may be granted on a case-by-case basis, but only if the individual meets certain conditions and requirements that will be determined by the Secretary of Homeland Security, in consultation with the Secretary of State. Furthermore, the Secretary of Homeland Security may at any time, after consulting with the Secretary of State, Attorney General, and Director of National Intelligence, decide to add or remove some or all restrictions for a given country, based on whether or not they are in compliance with the standards outlined in the proclamation.

On June 29th, 2017, after a U.S. Supreme Court ruling partially lifted the stay on the executive action, the Trump administration enacted a revised, limited version of its controversial travel ban into effect. The Supreme Court ruling places limitations on the ban, forcing the Trump administration to make revisions to comport with the decision, and opening the door to possible further litigation regarding whether or not the revisions actually satisfy those limitations.

The per curiam order in Donald Trump v. the International Refugee Assistance Project and Donald Trump v. Hawaii both partially stays the preliminary injunction placed on the Executive Order by a district court judge in Hawaii (and upheld by the 9th Circuit Court of Appeals) and grants a writ of certiorari to review the case and make a final ruling on the order’s ultimate legality. The qualified stay of the injunction is careful to explain that it is not a decision on the ultimate legality of the executive order. The order explains that an injunction is intended to provide “interim relief” to the affected parties to the suits; in this case, a plaintiff going by John Doe who is a permanent resident in the U.S. and whose Iranian wife is seeking entry to the U.S., Dr. Ismail Elshikh, an American citizen whose Syrian mother-in-law is seeking entry into this country, and the state of Hawaii, whose standing is derived in part from the fact that students who had been accepted to the University of Hawaii would be adversely impacted by the travel ban.

The order thus seeks to provide interim injunctive relief to the affected parties, but limits this relief to those “foreign nationals with a credible claim of a bona fide relationship with a person or entity in the United States”. The Court reasons that the injunction previously issued and affirmed, which bar enforcement of the Executive Order “against foreign nationals abroad who have no connection to the United States at all” provided relief to harm not imparted on the plaintiffs, and are thus too broad.

In response to this ruling, the State Department has taken to defining what constitutes a “bona fide relationship” to the U.S. The relatives deemed sufficiently close family members to exempt people from the travel ban, whether as visitors or refugees, are: a parent, spouse, child, an adult son or daughter, son-in-law, daughter-in-law or sibling, as well as their stepfamily counterparts. The administration’s new rules do not allow grandparents, grandchildren, uncles, aunts, cousins and fiances.

Lawyers for the state of Hawaii have once again petitioned the court to injoin the government from enforcing the ban, reasoning that the government has taken far too narrow a definition of what constitutes a “bona fide relationship”. “The Government does not have discretion to ignore the Court’s injunction as it sees fit,” the lawyers wrote. “The State of Hawaii is entitled to the enforcement of the injunction that it has successfully defended, in large part, up to the Supreme Court — one that protects the State’s residents and their loved ones from an illegal and unconstitutional Executive Order.”

The Supreme Court order can be found here, in its entirety: https://www.supremecourt.gov/opinions/16pdf/16-1436_l6hc.pdf

A Washington Post article explaining the government’s revisions to the ban in response to the Court order is linked to here: https://www.washingtonpost.com/world/national-security/travel-ban-to-take-effect-as-state-department-defines-close-family/2017/06/29/03eb8a8e-eba6-4749-9fa2-79117be89884_story.html

On April 3, 2017. the United States Supreme Court granted a writ of certiorari, agreeing to hear the case of Jesner et. al v. Arab Bank, PLC. At issue in this case is whether or not foreign corporations can be held liable for a tortious action they are alleged to have committed abroad.

The statute in question in this case is the 1789 Alien Torts Act, which states that district courts “shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.’

Arab Bank, PLC, a multinational financial institution based in Amman, Jordan, is one of the largest providers of banking services and capital in the Middle East. It has been accused by the plaintiffs of providing financial support for terrorist organizations. Within the petition for certiorari, the plaintiffs allege that “during the period surrounding the ‘Second Intifada’, the Bank itself provided a range of financial services to terrorists and terrorist front groups posing as “charities,”… hosted bank accounts for such individuals and organizations, fully aware of their terrorist goals, … maintained accounts for numerous well-known leaders of Hamas – including several of the group’s founders, a military leader, and the head of its Gaza operations,… [and] processed 282 funds transfers – a total amount of $2,563,275 – for individuals the United States designated at the time as terrorists.”

Apart from the substance of these allegations, the court must decide whether or not it has the jurisdiction under the Alien Torts Act to rule on the case. There are two major issues: first, whether or not corporations are included in the definition of “alien” under the Alien Torts Act, therefore liable for tortious action in U.S. courts. The court granted certiorari to a case involving a similar question of corporate liability under the Alien Torts Act in Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013), but ended up ruling on other grounds. The other major issue here is whether or not the acts of terrorism have a sufficient connection to the U.S.; in Kiobel, the Court decided that they could not rule on the issue of corporate liability under the Alien Torts Act because the case did not have a sufficient U.S. connection. However, in the petition for certiorari, the plaintiffs attempt to distinguish this case from that of Kiobel, arguing that “the contact with the United States is no fleeting detail” due to the Arab Bank’s use of the U.S. dollar as the “preferred currency for transferring money among terrorist groups.”

Joseph Jesner, the lead plaintiff in the case, is a British citizen whose son, Yoni, was killed in a bus bombing in Tel Aviv in 2002.

The full petition for certiorari can be found here: http://www.scotusblog.com/wp-content/uploads/2016/10/16-499-cert-petition.pdf

On March 27, 2017, Judge Eloy Velasco of Spain’s national court (Audiencia Nacional) agreed to hear a case brought by a Spanish citizen against high-ranking officials in the Syrian government for alleged war crimes committed in the Syrian Civil War. The complaint was filed by a woman going by the name of Amal, who is a hairdresser in Madrid, on behalf of her brother Abdul, a 43-year old Syrian delivery van driver killed in Syria in 2013.

The complaint names nine high-ranking officials in the government of Bashar al-Assad, including Vice President Farouk al-Sharaa, a former foreign minister; Ali Mamlouk, head of the National Security Bureau; Gen. Jamil Hassan, head of air force intelligence, as well as the senior officers in the prison in which Abdul was interred. Abdul had gone missing in 2013, and his whereabouts were unknown until photographs of his beaten, tortured corpse surfaced in 2015 as part of a release of a cache of over 50,000 photographs of brutality in the Syrian Civil War taken by a military photographer code-named Caesar.

Judge Velasco ruled that, under international law, relatives of deceased victims of crimes are themselves victims, and Amal’s Spanish citizenship gave the Spanish court the jurisdiction to hear the case. Spain has garnered an international reputation as a jurisdiction in which it is possible to seek justice for war crimes and crimes against humanity committed elsewhere.

The case will, according to lawyers with the legal advocacy group representing Amal, Guernica 37 International Justice Chambers, “allow the courts to investigate the torture and execution of thousands of civilians” perpetrated by the Assad regime in military detention centers.

The lack of an international tribunal for prosecuting the crimes of the still-ongoing Syrian Civil War has forced victims to search for nations willing to claim jurisdiction in order to seek justice. In Germany, the German federal prosecutor has agreed to hear witness testimony in a case accusing six Syrian officials of war crimes and crimes against humanity. The case was  filed by the European Center for Constitutional and Human Rights, a German human rights organization, as well as two Syrian lawyers.

SOURCE: Nick Cumming-Bruce, High-Ranking Syrian Officials Could Face Reckoning in Landmark Spain Case, N.Y. Times, Mar. 28, 2017, at A9.

On March 15, 2017, Hawaii U.S. District Court Judge Derrick K. Watson issued a nationwide temporary restraining order halting implementation of President Trump’s travel ban executive order, which had been set to go into effect the next day. The decision, made in the course of a suit filed against the ban by the state of Hawaii, was one of two decisions handed down by federal judges on the day to block the executive order from taking effect. The revised executive order was issued in an attempt to put Trump’s initial travel ban executive order on more solid legal footing after that order had been injoined by the Ninth Circuit Court of Appeals.

In the decision, Watson draws attention to the President’s statements as a candidate calling for a ban on Muslims entering the country, as well as statements made by advisors to the President, and determines that those statements suggest that the order’s true intent is religious discrimination. Judge Watson states:

The Government appropriately cautions that, in determining purpose, courts should not look into the ‘veiled psyche’ and ‘secret motives’ of government decision makers and may not undertake a ‘judicial psychoanalysis of a drafter’s heart of hearts.’ The Government need not fear. The remarkable facts at issue here require no such impermissible inquiry. For instance, there is nothing ‘veiled’ about this press release: ‘Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.’

While Justice Department lawyers argued that the purpose of the order related to national security and its intent was secular in nature, Judge Watson concluded that, “These plainly-worded statements, made in the months leading up to and contemporaneous with the signing of the Executive Order, and, in many cases, made by the Executive himself, betray the Executive Order’s stated secular purpose,” Watson wrote.

The government also argued that the limited nature of the order, applying only to visa applicants from six majority-Muslim countries, demonstrated that its intent was non-discriminatory. Judge Watson, however, disagreed, stating: “The illogic of the Government’s contentions is palpable. The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed.”

In addition, Judge Watson points to interviews with Trump advisors such as one conducted with Senior Advisor Stephen Miller in which Miller states that, “Fundamentally, [despite “technical” revisions meant to address the Ninth Circuit’s concerns in Washington,] you’re still going to have the same basic policy outcome [as the first].”

In addition to Judge Watson’s decision, a federal judge in Maryland injoined the order more narrowly, choosing to only halt the portion of the order that suspended the issuance of visas to citizens of the six listed Muslim countries.

President Trump, speaking at a rally later that night, decried the decision as political, and stated that the replacement executive order was a “watered-down” version of the first, ill-equipped to address the danger present. “Let me tell you something, I think we ought to go back to the first one and go all the way,” Trump said. “The danger is clear, the law is clear, the need for my executive order is clear.”

Judge Watson’s decision can be read here: https://assets.documentcloud.org/documents/3518059/Read-the-federal-judge-s-ruling-on-Trump-s-new.pdf.