SPECIAL COUNSEL MUELLER IS CONSIDERING WHETHER TO INDICT TRUMP FOR OBSTRUCTION OF JUSTICE, AND HE SHOULD DO SO

SPECIAL COUNSEL MUELLER IS CONSIDERING WHETHER TO INDICT TRUMP FOR OBSTRUCTION OF JUSTICE, AND HE SHOULD DO SO

As the Special Counsel’s investigation picks up steam, with the indictments of Paul Manafort and Rick Gates already filed and the guilty pleas with now cooperating witnesses Michael Flynn and George Papadopoulis publicly disclosed, Mueller’s team has amassed a wealth of information regarding President’s heavy-handed attempts to obstruct justice.

The avalanche of damning evidence of Trump’s obstruction of justice started with the firing of FBI Director James Comey on May 9, 2017 after direct attempts by Trump failed to extract from Comey a pledge of loyalty and a commitment to drop the FBI’s investigation of his former National Security Advisor Michael Flynn. There is also evidence that Trump pressured Director of National Intelligence Dan Coats to urge Comey to end his investigation into Flynn and his Russian connections, which was eerily reminiscent of former President Nixon’s attempt to use the CIA to derail the FBI investigation into Watergate and which ended up being included as part of the Articles of Impeachment against Nixon.

Despite the White House’s initial disinformation campaign to persuade the public that Comey was fired for other legitimate concerns, Trump could not resist telling NBC’s Lester Holt during a live interview on May 11, 2017 — two days after the firing — that Comey’s firing was due to “the Russia thing.”

If there was any doubt whatsoever that Trump fired Comey in order to try to quash the FBI’s and the Justice Department’s investigation of possible collusion between the Trump Campaign and Russian intelligence operatives to interfere with the 2016 election and to swing it in Trump’s direction, those doubts were dispelled when Trump told Russian Ambassador Sergey Kislyak and Sergey Lavrov, the Russian Foreign Minister, in the Oval Office on May 10, 2017,  the day after the firing of the FBI Director, that he had discharged “Nut Job” Comey in order to take “pressure” off the Russian investigation. Only Trump, the two Russian officials, and a Russian news representative were permitted to be in the Oval Office during this critical discussion, which also involved the disclosure of highly sensitive and classified information that the U.S. had obtained from Israeli intelligence about the Islamic State.

Two months before he fired Comey, Trump ordered White House Counsel Don McGahn to stop Attorney General Jeff Sessions from recusing himself from the Russia investigation, saying that he needed Sessions to provide active oversight over the Russia investigation in order to “protect him” and “safeguard” him. Mueller can persuasively argue that the only possible reason why Trump would be so desperate for Sessions to “protect” him was that Trump had something to hide from the federal prosecutors, and that he was desperately afraid that the investigation would lead into troubling areas regarding the underlying “collusion” investigation, or into collateral areas such as the Trump Organization’s heavy reliance on Russian money of suspicious origin in possible violation of U.S. money laundering laws.

After Comey was fired and replaced by Deputy FBI Director Andrew McCabe, who corroborated Comey’s testimony regarding Trump’s repeated requests for a “loyalty oath” from Comey, Trump pressured FBI Director Christopher Wray to fire McCabe, causing Wray to threaten to resign, according to news reports. Trump continued to berate McCabe in a barrage of twitter rants, until McCabe finally capitulated and announced his abrupt and early retirement from the FBI.

Trump is also reported to have ordered White House Counsel McGahn to fire Special Counsel Mueller, only to back down – at least for the time being- when McGahn threatened to resign.

The question being pondered by the Special Counsel’s office is what to do with all of this evidence of criminal obstruction of justice by Trump himself. Although the Justice Department issued two legal opinions in 1973 and 2000 during the investigations of Presidents Nixon and Clinton, concluding that a sitting President could not be indicted, there is nothing in the U.S. Constitution itself that explicitly says that. All that the Constitution says about the prosecution of the President is that, in Article I, Section 3, he (or she) is subject to prosecution after being impeached by the House of Representatives, and then convicted and removed from office by a two-thirds vote of the Senate.[1] It is silent on the issue of whether a President can be indicted before being impeached, or whether the two proceedings can take place simultaneously.

Legal memos prepared in 1973 for the Watergate Special Prosecutor and for Kenneth W. Starr, the Independent Counsel investigating allegations against President Clinton, reached the conclusion that a sitting President could be indicted if the evidence warranted it, which put both of these special federal prosecutors at odds with official Department of Justice policy.

Special Counsel Mueller, in consultation with Deputy Attorney Rosenstein, may well decide that the evidence of President Trump’s violations of the criminal obstruction of justice statutes is so compelling that the Grand Jury should be asked to return an indictment against him. President Trump’s lawyers will make an inevitable motion to dismiss the indictment on constitutional grounds, and that question will then finally have to be decided by the U.S. Supreme Court.

In the alternative, if the Special Counsel merely ask the Grand Jury to issue a Report laying out the evidence against President Trump, or name President Trump as an unindicted co-conspirator in an Obstruction of Justice indictment, then they will be violating the sacred principle that “No man is above the law,” even a sitting President. Passing the buck to Congress to consider impeachment of the president is not a good option, since impeachment is, at its core, a political decision as to whether a sitting president who has demonstrated that he is unfit to fulfill the duties of the office should be allowed to complete his term or not. That decision (whether to impeach or not) may have little or nothing to do with the issue of whether a president has violated the criminal laws, and whether he should be prosecuted for violations of those laws “without fear or favor,” just like every other citizen.

[1] Article 1, Section 3 states: “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States; but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”

THERE IS ALREADY A SOLID BASIS FOR CONGRESS TO INITIATE IMPEACHMENT PROCEEDINGS AGAINST TRUMP

After the sudden firing of FBI Director James Comey for what Trump as much as admitted to Lester Holt of NBC was an effort to stop the FBI’s investigation of possible collusion between Russia and the Trump Team, and after telling the Russian Foreign Minister that he believed that Comey was a “nut job” and that his firing would make the Russian/Trump investigation go away, there is now a solid basis for the impeachment and removal of Trump from the Presidency.

Rep. Maxine Waters (D-Calif.)  announced in April 2017 that she will “fight every day until he is impeached.” A few weeks later, Sen. Richard Blumenthal (D-Conn.) said that Trump’s actions “may well produce impeachment proceedings.” Other Democrats quickly followed, as well as some Republicans. Rep. Justin Amash (R-Mich.) was asked by reporters on Wednesday, May 17, 2017, whether he believed that Trump’s actions if reports were true — that Trump asked Comey to drop his investigation of former national security adviser Michael Flynn – whether such actions were grounds for impeachment. Rep. Amash responded, “yes.”

More recently, Congressman Lieu (D-Calif.), an attorney who practiced law while he was an Air Force JAG officer, announced that he is researching the issue of impeachment and is studying the Congressional Research Service’s excellent 2015 work entitled “Impeachment and Removal.”

The Trump White House is taking the possibility of impeachment proceedings seriously, and it has been reported that Trump’s private attorney and occasional spokesperson, Michael D. Cohen, has been at the White House assembling a team of lawyers to work on the impeachment issue.

If impeachment proceedings were commenced, they would first be considered in the House Judiciary Committee, of which Congressman Lieu is a member. In order for impeachment proceedings to be commenced against President Trump, a majority of the Judiciary Committee’s 4o members would have to vote in favor of impeachment before articles of impeachment were brought before the full House for a vote. Given the current make-up of the House Judiciary Committee (there are 23 Republican members and 17 Democrats), this would require only four Republicans to join the Democrats on the Committee in voting in favor of impeachment.

If a majority of the House favored impeachment of the President, the matter would then go to the Senate for a trial, which would be presided over by Chief Justice John G. Roberts Jr. Two-thirds of the Senate would have to vote in favor of conviction for Trump to be removed from office.

There is already a substantial basis for impeachment proceedings of Trump to begin. His firing of Comey and other heavy-handed attempts to interfere with the Russia/Trump collusion investigation constitute an Obstruction of Justice that already far exceeds the obstructions engaged in by the Nixon White House in their failed efforts to quash the Watergate scandal and investigation. Keep in mind, the Watergate break-in was truly a “third-rate burglary,” and even though the ensuing cover-up was clearly an attempt to obstruct justice, the underlying crimes that led to Nixon’s resignation in 1974 and ignominious departure from the White House lawn aboard the Marine 1 helicopter were inconsequential when compared to the magnitude of the crimes that the FBI is investigating regarding Russia’s meddling with our 2016 Presidential election and apparent collusion with several high-level Trump operatives, including Michael Flynn, Paul Manafort, Carter Page, Roger Stone and others. To the extent that Candidate or President-Elect Trump  knew and/or encouraged members of his team to facilitate or collude with Russia and its agents (including WikiLeaks) in its efforts to destabilize America’s democratic institutions and to tip the election scales in Trump’s favor, then Trump is guilty of “Treason” and “High Crimes and Misdemeanors” under the Constitution and should be removed from office.

In addition, to the extent that –since taking the oath of office on January 20, 2017 – President Trump has obstructed the FBI’s investigation into that Trump/Russian collusion, then that adds additional grounds for impeachment.

Only two Presidents have been impeached, but the charges against them were relatively minor as compared to the potential Treason charges to which Trump may be subjected. In 1868, President Andrew Johnson was impeached for attempting to replace his secretary of war, Edwin Stanton, without congressional permission. After impeachment by the House, he escaped being removed from office by a one-vote margin in the Senate. President Bill Clinton was the second president to be impeached during the Monica Lewinsky scandal of 1998. As much as Clinton’s conduct tarnished the office of the Presidency, even if he had been convicted in the Senate on the perjury and obstruction of justice charges for which he was impeached by the House (he was not), no one but the most zealous of his political enemies could have thought that Clinton’s prevarications regarding Ms. Lewinsky and her infamous dress threatened the fundamental pillars of our democracy.

Trump and his motley crew are truly in a league by themselves. At no time in American history have we had a President and his senior staff so eager to make a deal with a hostile foreign power in return for the keys to the White House, and at no time since the War of 1812 has a foreign power so threatened our democracy by mounting a direct attack on the American Homeland. While the burning of the U.S. Capitol and the entire city of Washington, D.C. by British troops on August 24, 2014, was a dark day in American history, no one ever alleged that the President of the United States or any of his administration colluded with the British.

In contrast, Trump gleefully invited WikiLeaks (and by inference the Russians) to violate U.S. criminal laws by hacking into Hillary Clinton’s emails and otherwise wreaking havoc on the American body politic during the 2016 Presidential campaign. He also surrounded himself with senior advisors – including Flynn, Manafort, Page and Stone – who he knew or should have known either had close ties with Russian or pro-Russian operatives, or were so totally lacking in political or moral scruples that they would do absolutely anything to advance the Trump cause or to subvert the Clinton campaign, regardless of the collateral damage that would be done to American security or democracy.

The stench of Treason and Obstruction of Justice is already permeating the White House and spreading rapidly. As Special Counsel Mueller and the Congressional committees continue their investigations, there is already more than enough evidence for the House Judiciary Committee to open an impeachment investigation. Our country deserves no less.

THE U.S. MUST NOT TURN ITS BACK ON THE SYRIAN PEOPLE

Dozens of people, including children, were killed on Tuesday following a chemical airstrike by Syrian government forces on a rebel-held area of the country. Video footage of the victims who were suffering the agony of chemical poisoning — writhing, choking and foaming at the mouth – was horrific.
World leaders immediately condemned this violation of international law in the strongest terms, with many calling for the immediate ouster of Syrian President Bashar al-Assad. The Trump Administration joined in blaming the Syrian government, but dismissed calls for the departure of the Syrian President as “impractical,” implying that it was not in America’s interests to focus on such human rights abuses. President Trump also blamed the Obama Administration, although Trump himself has not favored direct intervention in the Syrian conflict.
The use of chemical weapons is so abhorrent that after the massive death and destruction of the First World War, where both sides used mustard gas and other chemical weapons, the European powers agreed to ban the use of chemical weapons and to treat any chemical weapons use as a war crime. Amazingly, chemical weapons were not used by either side during the World War II, and chemical weapons were not used again until March 16, 1988, when Iraqi forces under Sadaam Hussein, mounted a chemical attack on the Kurdish city of Halabja in northern Iraq. The attack killed between 3,200 and 5,000 civilians and injured between 7,000 and 10,000 more. Thousands more died of various complications, diseases and birth defects in the following years. The Halabja attack has been generally recognized as a crime against humanity and as part of a campaign of genocide by the Hussein government against the Kurdish people.
In sharp contrast to the Trump Administration’s near-hostility to Syrian refugees who have fled this war-torn area, the U.S. – which then prided itself as a beacon of hope for millions of suffering peoples around the world – opened its door to thousands of Kurdish refugees who fled from the northern areas of Iraq and sought asylum here. Many of them settled in the Nashville, Tennessee area, which now has a thriving Kurdish community that has fully integrated itself into American society, just as successive waves of immigrants from other countries had come here seeking to participate in the American dream, making both themselves and America the better for it. I have had to opportunity to represent the Kurdish communities throughout the U.S., and their contributions to the U.S. as teachers, professors, doctors, scientists. lawyers and in the arts never ceases to amaze me. They are better off for having come here, and the country is also a better place now that they have come.
Our great country was founded on a commitment to life, liberty and the pursuit of happiness. We have been the champions of democracy and human rights around the world for over 250 years. Now we have a President who not only wants us to close our borders to many genuinely peace-loving refugees but is no longer willing to take decisive and tangible steps to prevent further atrocities from being carried out by brutal despots in Syria and elsewhere.
If America’s commitment to democracy and human rights continues its downward slide, no amount of military spending or tough-guy bluster from the White House can prevent our country from losing its most valuable asset. We are in danger of losing our soul.

THE CURRENT ASSAULT ON FREEDOM OF THE PRESS AND OTHER CORE AMERICAN VALUES

 

One of the most troubling aspects of Donald Trump’s campaign, from a constitutional and legal perspective, is that he is the first presidential candidate in history (or at least in my lifetime) who refuses to accept as a “given” established core values of our constitutional democracy. These core values include Freedom of Speech and of Religion, which are embedded in the First Amendment to the U.S. Constitution, and the Equal Protection and Due Process Clauses of the Fifth and Fourteenth Amendments.

If Donald Trump’s campaign is any indication of what a Trump Administration would be doing, then we can anticipate that the freedom of speech and expression exercised by non-violent protesters at his rallies would continue to be suppressed. Mr. Trump himself has repeatedly urged his supporters at his mass rallies to assault non-violent protesters. He has also made a continuing practice of belittling and berating the press for its coverage of his campaign and has even withheld press credentials from certain news organizations that have had the temerity to report on certain aspects of his campaign in a negative light.

On Monday, September 19, 2016, immediately after a series of bombings in New York and New Jersey, Trump blamed “freedom of expression” as a potential roadblock to the war against terrorism. In an interview on Fox News, Trump blamed freedom of the press for the fact that magazines were being sold that published bomb-making instructions. He did not identify which magazines he was referring to, but presumably, he was referring to Al Qaeda’s English-language propaganda magazine, Inspire, or jihadi websites that publish bomb-making instructions. What Trump failed to note – perhaps because he does not himself know – that these kind of magazines are not sold at any mainstream U.S. bookstores or newsstands.

Trump’s suggestion that First Amendment freedoms should be eliminated, or at least abridged, under the guise of supporting the fight against terrorism is reminiscent of Putin’s heavy-handed attacks on press freedom in Russia by labeling all media opposition there as unpatriotic or treasonous.

Over the past few years, numerous prominent Russian reporters have been found murdered or have “disappeared” after writing articles critical of Putin and his inner Kremlin circle. Similarly, the political opposition in Russia has been mostly crushed with the jailing or exile of several prominent political opposition leaders. As Timothy Snyder pointed out in a recent New York Times article on Russian fascism (09/21/16), Putin has long idolized Ivan Ilyin, the founding father of Russian fascism, who believed that individuality, diversity, and democracy were evil, and that the only thing that was important was a Holy Russia governed by a “national dictator.” Writing in the 1930s and 1940s, Ilyin looked to Mussolini and Hitler as the kind of leaders who could save Europe by destroying democracies and the individual freedoms that went along with them.

Trump’s real concern with the press and American media in general is that it has been largely critical of both him and the policies that he has espoused in his campaign, suggesting, for example, that his proposals to build a multi-billion-dollar Wall on the southern border with Mexico would be ineffective at stemming the flow of Mexican immigrants, a nonsensical waste of money and resources, and an environmental catastrophe. The press has also portrayed him and his campaign as xenophobic, misogynistic and racist, which Trump has considered being “unfair” and “false”, even though mainstream reporting is, for the most part, backed up with a wealth of documentary support. Trump has now ratcheted up his criticism of the press by suggesting that the media coverage of his campaign and press freedom in general is basically harmful to the country as long as we are in the midst of an existential war on terrorism.

What Trump seems to be missing, or at least ignoring, is that America’s longstanding tradition of a free and uncensored press is precisely part of what has made this country an exceptional example of how real democracies are different from autocratic pseudo-democracies such as Russia, Turkey and countless other “republics” in name only around the globe.

A likely reason why Trump has expressed such admiration for President Vladimir Putin of Russia is that, if elected, he would like to emulate Putin’s iron hand when it comes to the press and political dissent. Correspondingly, Putin’s embrace of Trump and aversion to Hillary Clinton springs from his belief that Clinton, as Secretary of State during the Russian parliamentary elections of December 2011 and the presidential elections of March 2012, gave the signal to the Russian opposition to demonstrate in the streets against the rigged elections and stuffed ballot boxes that kept Putin and his ruling party in power. Putin forced all nongovernmental organizations as “foreign agents” and branded all political opponents as enemies of the Russian state. It is not surprising, therefore, that Putin would support Trump and release hacked emails embarrassing the Democratic National Committee and Hillary Clinton, since Trump has reciprocated by expressing agreement with most of Russia’s foreign policy, including the weakening of NATO and the democratic republics of Western Europe and Ukraine. Just as the institutions of democracy have been hollowed out in Russia and reduced to a sham, the undermining of democracy in the U.S. and Western Europe is also part of the grand design of Putin and his former KGB cronies.

Given Trump’s affinity for Putin and the way that he has been able to control the press and to suppress dissidents in Russia, it is likely that President Trump would take similar steps to “discipline” the U.S. mainstream press, but denying White House press credentials to reporters who consistently question Trump’s policies and practices, by having his administration challenge the FCC licenses of offending news organizations, and other measures designed to stifle a free press. Borrowing from Putin’s playbook, opposition political leaders would also be likely subjected to a barrage of investigations and prosecutions by a politicized U.S. Dept. of Justice, with perhaps Chris Christie or some other political hit man being appointed to the position of Attorney General of the United States. And since President Trump would have the pardon power, no doubt Christie’s Bridge Gate problems would also be quickly solved.

The President of the United States has awesome powers. If used without restraint in order to silence critics or to get even with political opponents, the U.S. government can quickly be turned into something more closely resembling the pseudo-democracies of Russia, Turkey or countless other “republics” in name only, which outwardly profess adherence to democratic principles and the electoral process, but in practice are nothing more than autocratic regimes. These regimes rule through raw power and fear, who perpetuate themselves through the brutal suppression of free speech and a free press.

Although we take the Freedom of the Press for granted, this country has gone through some extremely troubling periods when there were severe restrictions placed on the right of free expression and freedom of the press.  It is entirely within the realm of possibility that such rights can be suppressed once again under the administration of a Trump or someone like him. It should be remembered that in 1798, only a few years after the passage of the Bill of Rights and adoption of the Constitution in 1791, the governing Federalist Party attempted to suppress criticism by means of the Alien and Sedition Acts, which made criticism of Congress and of the President a crime. Fortunately, Thomas Jefferson was elected President in the election of 1900, in part due to his opposition to the Sedition Acts, and he pardoned most of those who had been convicted under them.

During the Civil War, four New York newspapers were prosecuted in mid-1961 for “frequently encouraging the rebels by expressions of sympathy and agreement.” These actions all followed various “executive orders” issued by President Lincoln, including his eighth order on August 7, 1861, which made it both illegal and punishable by death to hold “correspondence with” or give “intelligence to the enemy, either directly or indirectly.” This was understood as an explicit direction for actions taken by various state and federal governmental officials to harass or prosecute newspapers and reporters who published any articles deemed to be sympathetic to the Southern cause.

During World War I, the Espionage Act of 1917 and the Sedition Act of 1918 imposed restrictions on the press, with offenders subject to fines of $10,000 and up to 20 years imprisonment for the publication of “disloyal, profane, scurrilous, or abusive language about the form of government of the United States or the Constitution of the United States, or the military or naval forces of the United States ….”

Similarly, a Minnesota law that targeted publishers of “malicious” or “scandalous” information was not invalidated by the U.S. Supreme Court until 1931, when the decision in Near v. Minnesota struck down this state law as an infringement on the First Amendment’s freedom of the press. In 1938, in Lovell v. City of Griffin, the U.S. Supreme Court extended the reach of the First Amendment’s freedom of the press beyond just newspapers and periodicals, holding that freedom of the press was a fundamental persona right extending to “every sort of publication which affords a vehicle of information and opinion. This, of course, now extends to the internet.

In January 2014, the Ninth Circuit Court of Appeals held, in Obsidian Finance Group LLC v Cox, that the protections of the First Amendment’s free speech and free press clauses extend to bloggers on internet, and that they cannot be liable for defamation unless the blogger acted negligently. The Ninth Circuit explained that journalists and bloggers are essentially equal under the First Amendment since those protections do not depend on “whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others’ writings, or tried to get both sides of a story.”

One way that Donald Trump has said that he would consider restricting the freedom of the press is by loosening up the defamation and libel laws, which subject newspapers and other media outlets to possible lawsuits for the publication of information that is alleged to be false and defamatory. As the law now stands, however, there are severe legal restrictions on a person’s ability to successfully pursue a lawsuit for an allegedly defamatory article if that person may be considered to be a “public figure.” The reason for this is that in New York Times Co. v. Sullivan, a 1964 case, the Supreme Court sharply restricted such libel cases by holding that when a publication involves a public figure, a plaintiff in a libel suit bears the burden of proving that the publisher acted with “actual malice,” meaning that the publisher had to know of the inaccuracy of the information or statement being published, or acted with “reckless disregard” as to the truth of the statement. In another watershed case, in 1971 the Supreme Court, in New York Times Co. v. United States, upheld the publication of the previously secret Pentagon Papers, which contained some highly critical information regarding America’s involvement in the Vietnam War. I recall this case very clearly since I was a law school intern in the U.S. Attorney’s Office in Manhattan at the time that the case was argued in federal court.

If Donald Trump has his way, these and other restrictions on the ability of a public figure such as himself to sue the press for its negative reporting of him would be swept aside, and the country would embark on a new era of press restrictions and even criminal prosecutions of newspapers and investigative reporters, no doubt including the teams of reporters now delving into the illegal activities of the Trump Foundation.

The Alien Tort Statute and International Human Rights

The Alien Tort Statute (28 U.S.C. § 1350), also called the Alien Tort Claims Act (ATCA), was one of the first statutes enacted by the U.S. Congress as part of the Judiciary Act of 1789. It opened the doors of the U.S. courts to all foreign citizens (i.e. “aliens”) with regard to any civil wrongs (i.e. torts) committed in violation of customary international law. The language of the statute is both short and simple: “The 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.”

Immediately after its passage, the Alien Tort Statute (“ATS”) fell into virtual obscurity. There were only two reported court cases in the almost 200 years between 1789 and 1980.

Since 1980, however, there have been a virtual avalanche of ATS cases brought in federal courts on behalf of foreign nationals, and the courts have generally interpreted this statute to allow foreign citizens to seek remedies in U.S. courts for human-rights violations for conduct committed outside the United States. Lawyers associated with The Center for Constitutional Rights started the ball rolling in Filartiga v. Pena-Irala, a case brought on behalf of two Paraguayan citizens resident in the U.S against a Paraguayan former police chief who was also living in the United States. The plaintiffs alleged that the defendant had tortured and murdered a member of their family, and they asserted that U.S. federal courts had jurisdiction over their suit under the ATS.

At first, the case hit a stone wall in the district court, which dismissed the complaint for lack of subject-matter jurisdiction, holding that the “law of nations” does not regulate a state’s treatment of its own citizens. However, the  U.S. Court of Appeals for the Second Circuit reversed the decision of the district court. Filartiga v. Pena-Irala, 630 F.2d 876, 885 (2d Cir. 1980). First, it held that the ATS was a constitutional exercise of Congress’s power, because “the law of nations…has always been part of the federal common law“, and thus the statute fell within the federal-question jurisdiction of the U.S. courts. Second, the court held that the contemporary law of nations had expanded to prohibit state-sanctioned torture, and that various United Nations declarations, such as the Universal Declaration on Human Rights, also prohibited official torture. The court therefore held that the right to be free from torture had become a principle of customary international law.

Following the Second Circuit’s decision in Filartiga, several cases brought in the U.S. courts against individuals and major corporations under the ATS proved to be successful. For example, in one 2007 case, Wang Xiaoning v. Yahoo!, the World Organization for Human Rights USA filed a lawsuit in the U.S. District Court for the Northern District of California against Yahoo! on behalf of Chinese dissidents Wang Xiaoning and Shi Tao (Guao Quingsheng), claiming jurisdiction under the ATS. No. C07-02151 (N.D. Cal. Nov. 13, 2007). According to the complaint, Wang and Shi Tao used Yahoo! accounts to share pro-democracy material, and a Chinese subsidiary of Yahoo! gave the Chinese government identifying information that allowed authorities to identify and arrest them. The Complaint alleges that the plaintiffs were subjected to “torture, cruel, inhuman, or other degrading treatment or punishment, arbitrary arrest and prolonged detention, and forced labor.” Yahoo! settled the case in November 2007 for an undisclosed amount of money, and it agreed to cover the plaintiff’s legal costs as a part of the settlement. In a statement released after the settlement was made public, Yahoo! said that it would “provide ‘financial, humanitarian and legal support to these families’ and create a separate ‘humanitarian relief fund’ for other dissidents and their families.” See Joint Stipulation of Dismissal, Xiaoning v. Yahoo!, Inc., No. C07-02151 (N.D. Cal. Nov. 13, 2007).

The first U.S. Supreme Court case directly addressing the ATS is the 2004 decision in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). The plaintiff in Sosa (Alvarez) brought a claim under the ATS for arbitrary arrest and detention. Alvarez had been indicted in the U.S. for torturing and murdering a Drug Enforcement Administration officer. When the U.S. was unable to secure Alvarez’s extradition, it paid Sosa, a Mexican national, to kidnap Alvarez and bring him into the U.S. Alvarez claimed that his “arrest” by Sosa was arbitrary because the warrant for his arrest only authorized his arrest within the U.S. The U.S. Court of Appeals for the Ninth Circuit held that Alvarez’s abduction constituted arbitrary arrest in violation of international law. However, the Supreme Court reversed, holding that the ATS did not create a cause of action, but instead merely “furnish[ed] jurisdiction for a relatively modest set of actions alleging violations of the law of nations.” Sosa v. Alvarez-Machain, 542 U.S. at 720. According to the Sosa decision, such actions must “rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized.” Although the Court noted that scope of the ATS is not limited to violations of international law recognized in the 18th century, with respect to recognizing contemporary international norms, the court’s opinion stated that “the judicial power should be exercised on the understanding that the door is still ajar subject to vigilant doorkeeping.” The Court further noted that under the ATS, any cause of action for violations of international norms must be as “specific, universal, and obligatory” as were the norms prohibiting violations of safe conducts, infringements of the rights of ambassadors, and piracy in the 18th century. Finally, the Supreme Court, in Sosa, found that the following categories to be actionable under the ATS: torture; cruel, inhuman, or degrading treatment; genocidewar crimescrimes against humanity; summary execution; prolonged arbitrary detention; and forced disappearance.

Specifically addressing Alvarez’s claims, the Supreme Court in Sosa concluded that “a single illegal detention of less than a day, followed by the transfer of custody to lawful authorities and a prompt arraignment, violates no norm of customary international law so well defined as to support the creation of a federal remedy.” Id. at 738.  Although not explicitly stated, the Supreme Court’s narrow interpretation of the ATS may have been influenced by a growing uneasiness that the U.S. courts really had no business resolving disputes solely involving foreigners, and that the U.S. taxpayers should not be required to foot the bill for costly court litigation relating to conduct that occurred outside the U.S.

The U.S. courts have almost always recognized that the ATS is an effective vehicle for foreign nationals who have been subjected to torture or other international law violations to pursue their claims, as long as the human rights abuses rise to the level where they may be considered to be in violation of international law. For example, in Kpadeh v. Emmanuel, Charles McArthur Emmanuel (also known as “Chuckie Taylor” or “Taylor Jr.”), the son of Charles Taylor, former President of Liberia, was the commander of the infamously violent Anti-Terrorist Unit (ATU), commonly known in Liberia as the “Demon Forces”. In 2006, U.S. officials arrested Taylor Jr. upon entering the U.S. (via the Miami International Airport) and the Department of Justice later charged him based on torture he committed in Liberia. He was convicted of multiple counts of torture and conspiracy to torture, and was sentenced to 97 years in prison.

The World Organization for Human Rights USA and the Florida International University College of Law then filed a civil suit in the Southern District of Florida on behalf of five of Taylor Jr.’s victims pursuant to the Alien Tort Statute and the Torture Victim Protection Act. See Rufus Kpadeh et al. v. Charles McArthur Emmanuel, No. 09-20050-civ (S.D. Fla. Feb. 5, 2010). The plaintiffs won by default judgment as to liability on all counts, and in February 2010, following trial on damages at which Taylor appeared, the court found Taylor liable to the plaintiffs for damages of over $22 million.  261 F.R.D. 687 (S.D. Fla. 2009).

While the U.S. courts have always recognized the jurisdiction under the ATS against individuals who commit human rights abuses, the liability of corporations under the ATS has been an entirely different matter. Until October 2011, there was a split in the federal circuit courts regarding whether corporations, as opposed to natural people, could be held liable under the ATS. In 2010 the Second Circuit Court of Appeals held in Kiobel v. Royal Dutch Petroleum Co. that “customary international law has steadfastly rejected the notion of corporate liability for international crimes” and thus that “insofar as plaintiffs bring claims under the ATS against corporations, plaintiffs fail to allege violations of the law of nations, and plaintiffs’ claims fall outside the limited jurisdiction provided by the ATS”. Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 120 (2d Cir. 2010).

The plaintiffs in Kiobel were citizens of Nigeria who claimed that Dutch, British, and Nigerian oil-exploration corporations aided and abetted the Nigerian government during the 1990s in committing violations of customary international law. The plaintiffs claimed that Royal Dutch Shell compelled its Nigerian subsidiary, in cooperation with the Nigerian government, to brutally crush peaceful resistance to aggressive oil development in the Ogoni Niger River Delta. Plaintiffs sought damages under the ATS. The defendants moved to dismiss on two grounds. First, they argued that customary international law itself – not the ATS — provides the rules by which to decide whether conduct violates the law of nations where non-state actors are alleged to have committed the wrong in question. Second, they contended that no norm has ever existed between nations that imposes liability upon corporate actors, as opposed to individuals. Thus, the Second Circuit dismissed the case against Royal Dutch Shell, not because there was not ample evidence indicating that it had been deeply involved in the Nigerian governments efforts to suppress any popular opposition to Shell’s oil exploitation, but because it reached the startling conclusion that there apparently are no international codes of conduct or ethics for corporations.  It has often been said that it is difficult to hold multi-national corporations liable under international law because they neither have a body to be jailed nor a soul to be damned. Yet even I was surprised that a U.S. court would basically grant corporations immunity from liability under the ATS, which is basically what the Second Circuit did in Kiobel.

However, in 2011, the Seventh Circuit Court of Appeals, the Ninth Circuit Court of Appeals, and the D.C. Circuit Court of Appeals declined to follow the Second Circuit’s reasoning in Kiobel, all of them ruling that corporate liability was possible under the statute. On April 17, 2013, in Kiobel v. Royal Dutch Petroleum Co., the U.S. Supreme Court issued a decision affirming the Second Circuit Court of Appeals but on different grounds, holding that the ATS did not create jurisdiction for a claim regarding conduct occurring outside the territory of the United States, leaving the question of corporate liability unresolved. 569 U.S. ___(2013).

With its Kiobel decision, the Justice Robert’s Supreme Court thus left its unenviable mark as the most pro-corporate Supreme Court in history, severely restricting the ability of human rights victims to seek redress in U.S. courts against corporations from their commission and complicity in human rights abuses abroad. The plain language of the Alien Tort Statute itself and extensive jurisprudence starting with the trials of Nazi war criminals at Nuremburg had established that fundamental human rights violators may be prosecuted in the courts of all civilized countries, including the United States. With its decision in Kiobel, rogue corporations and executives were given some hope that they could seek “safe haven” for their participation in such human rights abuses, just as Nazi war criminals sought safe haven in Paraguay or Brazil at the end of World War II. The United States was never meant to harbor the enemies of mankind; on the contrary, it was – and hopefully will continue to be – a beacon of home for the downtrodden and oppressed who have been victims of violations of their fundamental human rights.

The Supreme Court again addressed the question of whether there is corporate liability under the ATS in Sarei v. Rio Tinto, a case brought by residents of the island of Bougainville in Papua New Guinea brought suit against multinational mining company Rio Tinto. The lawsuit, which was based on a 1988 revolt against Rio Tinto, alleged that the Papua New Guinea government, using Rio Tinto helicopters and vehicles, killed about 15,000 people in an effort to put down the revolt. On October 25, 2011, the Ninth Circuit Court of Appeals, sitting en banc, issued a divided opinion holding that certain claims against a foreign corporation implicating the conduct of a foreign government on foreign soil could proceed under the ATS. The company filed a petition for a writ of certiorari in the Supreme Court for review of the decision.  On April 22, 2013, the Supreme Court sent the case back to the Ninth Circuit for further consideration in the light of its decision in the Kiobel case, and on July 9, 2013, the U.S. Court of Appeals for the Ninth Circuit dismissed the case, based upon the Kiobel decision.

The U.S. courts have also generally required a fairly high standard of proof for ATS violations. For example, several courts have found that it is not enough for a defendant to just have knowledge of the human rights abuses to be liable under the ATS; a defendant must actively participate or aid and abet such abuses to be held liable, For example, on October 2, 2009, the Court of Appeals for the Second Circuit, in Presbyterian Church of Sudan v. Talisman Energy, Inc., held that “the mens rea standard for aiding and abetting liability in Alien Tort Statute actions is purpose rather than knowledge alone.” 582 F.3d 244 (2nd Cir.2009). In this case, which involves allegations against a Canadian oil company concerning its purported assistance to the government in Sudan in the forced movement of civilians residing near oil facilities, the court concluded that “plaintiffs have not established Talisman’s purposeful complicity in human rights abuses.” In reaching that conclusion, the Second Circuit stated that “the standard for imposing accessorial liability under the Alien Tort Statute must be drawn from international law; and that under international law a claimant must show that the defendant provided substantial assistance with the purpose of facilitating the alleged offenses.”

For an ATS case to be successful, therefore, an ATS complaint must set forth specific allegations of a defendant’s participation in the alleged human rights abuses; vague general allegations are insufficient. For example, on August 11, 2009, the Court of Appeals for the Eleventh Circuit issued a decision in Sinaltrainal v. Coca-Cola Company. In this case, plaintiffs alleged that Coca-Cola bottlers in Colombia collaborated with Colombian paramilitary forces in “the systematic intimidation, kidnapping, detention, torture, and murder of Colombian trade unionists.” Sinaltrainal union members in Colombia launched the website “killercoke.org” which called for the boycott of Coke.

However, the district court dismissed the Sinaltrainal complaint and the Eleventh Circuit upheld that ruling.  In doing so, the Eleventh Circuit relied upon the Supreme Court’s recent Ashcroft v. Iqbal decision, 556 U.S. 662 (2009), in addressing the adequacy of the complaint, which has must have “facial plausibility” to survive dismissal, and noted that Rule 8 of the Federal Rules of Civil Procedure demands “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” The Eleventh Circuit then applied the Iqbal standard to plaintiffs’ allegations against Coca-Cola and held that they were insufficient to survive dismissal.

Another major ATS case is Doe v. Unocal, which was filed in September 1996 by four Burmese villagers against Unocal and its parent company, the Union Oil Company of California. In October 1996, another fourteen villagers also brought suit. The suits alleged various human rights violations, including forced labor, wrongful death, false imprisonment, assault, intentional infliction of emotional distress and negligence, all relating to the construction of the Yadana gas pipeline project in Myanmar, formerly Burma. In 2000, the district court dismissed the case on the grounds that Unocal could not be held liable unless Unocal wanted the military to commit abuses, and that plaintiffs had not made this showing. Plaintiffs appealed and ultimately, shortly prior to when the case was to be argued before the Ninth Circuit en banc court.  Doe vUnocal, 395 F.3d 932 (9th Cir. 2002), opinion vacated and rehearing en banc granted, 395 F.3d 978 (9th Cir. 2003). In December 2004, the parties announced that they had reached a tentative settlement. Once the settlement was finalized in March 2005, the appeal was withdrawn and the district court opinion from 2000 was also vacated. According to a joint statement released by the parties, while the specific terms were confidential, “the settlement will compensate plaintiffs and provide funds enabling plaintiffs and their representatives to develop programs to improve living conditions, health care and education and protect the rights of people from the pipeline region. These initiatives will provide substantial assistance to people who may have suffered hardships in the region.”

Thus, the Alien Tort Statute, while severely bruised, remains alive and well as to human rights abuses occurring internationally as long as there is some direct connection to the U.S., and where there is strong evidence that the conduct complained of violates customary international law norms. Corporations operating in the U.S. still must think twice before they ignore human rights standards in their insatiable quest to improve their bottom line.

The Supreme Court Further Undercuts the Fourth Amendment

On Monday, June 20, 2016, the U.S. Supreme Court further vitiated the Fourth Amendment’s prohibition against unlawful searches and seizures. In Utah v. Strieff (No. 14-1373), Justice Clarence Thomas wrote the majority opinion, joined by Chief Justice Roberts, and Justices Kennedy, Breyer and Alito. Justices Sotomayor, Ginsburg and Kagan dissented.

In this case, narcotics detective Douglas Fackrell was conducting a surveillance on a South Salt Lake City residence based on an anonymous tip about drug activity. The number of people he observed making brief visits to the house over the course of a week led him to suspect that the occupants were dealing drugs. When he observed defendant Edward Strieff leave the residence, Officer Fackrell detained Strieff at a nearby parking lot, identifying himself and asking Strieff what he was doing at the house. He then requested Strieff’s identification and relayed the information to a police dispatcher, who informed him that Strieff had an outstanding arrest warrant for a traffic violation. Officer Fackrell arrested Strieff, searched him, and found methamphetamine and drug paraphernalia. Strieff moved to suppress the evidence, arguing that it was derived from an unlawful investigatory stop. The trial court denied the motion, and the Utah Court of Appeals affirmed. The Utah Supreme Court reversed, however, and ordered the evidence suppressed.

The Supreme Court reversed, holding that the evidence Officer Fackrell seized incident to Strieff’s arrest was not subject to the “exclusionary rule,” which requires that evidence unlawfully seized be excluded from evidence. In his majority opinion, Justice Thomas found that the evidence found on Strieff’s person was admissible based on an application of the “attenuation factors” originally articulated by the Court in Brown v. Illinois, 422 U. S. 590. This attenuation doctrine provides for admissibility when the connection between unconstitutional police conduct and the evidence is sufficiently remote or has been interrupted by some intervening circumstance. See Hudson v. Michigan, 547 U. S. 586, 593. The basic argument applied by Justice Thomas in his majority opinion was that although the initial investigatory stop of Strieff was admittedly unlawful, since it was assumed that the officer did not have sufficient “reasonable suspicion” that Strieff was engaged in an illegal activity, the causal connection between the unlawful search and the seizure of evidence from his person was “attenuated” by the fact that Officer Fackrell’s discovered there was a valid, pre-existing arrest warrant for him.

As Justice Sotomayor pointed out in a blistering dissent, the majority decision basically means that any tainted evidence unlawfully seized after an illegal investigatory stop of a person may be used as evidence to convict that person of a crime as long as the officer later learns that there is an outstanding traffic ticket or moving violation outstanding against that person. Thus, this decision almost completely undercuts the exclusionary rule, which is the primary judicial remedy for deterring Fourth Amendment violations, and encompasses both the “primary evidence obtained as a direct result of an illegal search or seizure” and, relevant here, “evidence later discovered and found to be derivative of an illegality.” Segura v. United States, 468 U. S. 796, 804.

Sotomayor’s remarkably strong dissent criticized the majority opinion as excusing clear-cut violation of the Fourth Amendment right to be free of unlawful searches and seizures, while saying “that your body is subject to invasion” even though your rights have been violated. Her dissent cited to the Department of Justice’s recent report on police misconduct in Ferguson, Missouri, as well as to various books that and books like Michelle Alexander’s “The New Jim Crow,” Ta-Nehisi Coates’ “Between the World and Me” and James Baldwin’s 1963 classic “The Fire Next Time.”

Sotomayor noted that, although Strieff is white, the majority opinion could be used by police officer to justify racial profiling: “The white defendant in this case shows that anyone’s dignity can be violated in this manner … But it is no secret that people of color are disproportionate victims of this type of scrutiny … For generations, black and brown parents have given their children ‘the talk’ — instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger — all out of fear of how an officer with a gun will react to them.”

This decision is the latest in a long line of decisions that have been chipping away at the Fourth Amendment and the Exclusionary Rule’s deterrence against police misconduct and arbitrary stops without any reasonable suspicion. This is but another reason why the selection of the ninth Supreme Court justice to fill the vacant seat on the Supreme Court is so critical to important issues raised by this case and so many others.

 

IS TRUMP’S PROPOSED BAN ON MUSLIMS UNCONSTITUTIONAL?

The presumptive Republican candidate for President, Donald Trump, has proposed a ban on all Muslims entering the U.S., with the possible exception of Muslims who are already U.S. citizens, or members of the U.S. military seeking legal immigration status here.
The general reaction in the media and among most constitutional experts was to declare immediately and categorically that such a ban would be unconstitutional. They argue that it was prohibited by the First Amendment protection of Freedom of Religion, or the Fourteenth Amendment’s “Due Process Clause,” which bars the states from depriving “any person” of their property without “due process of law.” However, the answer to the question as to whether such a ban is constitutional or not is more complex.
To address this question from a purely constitutional perspective, we must put aside for the moment consideration of whether it makes practical, moral or ethical sense to impose a blanket ban on 1.6 billion people from entering the U.S. based solely upon their religious beliefs. Nor is the constitutional question the same question as whether such an action is consistent with fundamental American values and heritage, as summed up by the Statue of Liberty’s promise to generations of poor and oppressed people around the world (“Give me your tired, your poor, your huddled masses yearning to be free….”). The constitutional issues do not necessarily take into account the fact that our country was largely built by immigrants seeking refuge from religious oppression. Groups such as the Puritans, the Quakers, the French Huguenots came to America because they were fleeing religious oppression elsewhere, just as Muslim Shia refugees from Iraq and Syria have been seeking asylum in the U.S. as a result of persecution by Muslim Sunni terrorist groups such as ISIS.
As we have sadly learned throughout U.S. history, there is often a divergence between what is legal or constitutional and what is right and moral. Some of the darkest stains on the American soul have resulted from decisions that were found to be legal and constitutional, but nevertheless constituted outrageous deprivations of fundamental human rights. For example, slavery was legal in the United States up until the Civil War, despite the fact that by 1860, virtually no one argued that it was morally justifiable. Several decades later, during the 1890’s, in response to public hysteria over the “Yellow Peril” of Chinese immigration on the West Coast, Congress enacted legislation, known as the Chinese Exclusion Act, which effectively banned Chinese immigration. In a series of decisions, the U.S. Supreme Court upheld this ban on Chinese immigration, finding that such blatantly discriminatory legislation was constitutional. The Court relied upon the so-called “plenary power doctrine,” a legal concept articulated by the Supreme Court, acknowledging that Congress and the Executive Branch have tremendous power and discretion over immigration laws, and giving great deference to Congressional legislation dealing with immigration.
Similarly, the decision by President Roosevelt to acquiesce to West Coast hysteria regarding the perceived “threat” of an imminent invasion of the West Coast by the Japanese and to order that 100,000 innocent Japanese-Americans be herded into detention camps following Pearl Harbor was regrettably upheld by the Supreme Court as legal, although it was recognized by many Americans at the time, and by the post-World War II generations, as being morally repugnant and totally inconsistent with fundamental American values.
This ban on Chinese laborers and the incarceration of Japanese-Americans, however, was based solely upon ethnicity and national origin, not religion, and there does not appear to be any Supreme Court case that squarely addresses the constitutionality of such a ban based purely on religious grounds.
There is no question that the U.S., as a sovereign nation, has virtually an unfettered right to decide who enters the country and who is eligible for citizenship status. Congress has the power to decide who may become a citizen and has broad powers over foreign commerce. The President and the Executive Branch also have broad powers to manage foreign relations and to control and secure the nation’s borders.
The most recent case that is directly relevant to the issue of whether a broad ban on Muslim immigration may legally be imposed is the Supreme Court’s 1972 decision in the case of Kleindienst v. Mandel, which upheld the Executive Branch’s refusal to allow a Belgian scholar who subscribed to a Marxist political philosophy from entering the U.S. to give a series of lectures. In a 6 to 3 split decision, the Supreme Court reluctantly declined to second-guess the Executive Branch’s decision to ban Mandel based upon his political philosophy. This decision, however, should not be interpreted as giving a clear green light to a ban on all Muslims from entering the U.S. because that decision also rejected the argument made by the Executive Branch that U.S. courts do not even have the power to review such decisions. Also, the Court found that the Executive Branch’s reasons for excluding Mandel were “facially legitimate and bona fide,” leaving open the door to a possible future finding by the Supreme Court that there is no rational basis for a blanket immigration ban on all Muslims, and that the only true motivation for such a proposal is to pander to current public hysteria and xenophobia triggered by terrorist acts by Muslim residents and citizens of the U.S. in San Bernadino and Orlando.
The power of Congress and the President to ban entire groups based upon national origin or religion is not unlimited under the Constitution. Some portions of the Constitution only protect “citizens,” but other important sections were designed to protect all “persons” or “people,” not just citizens. The First Amendment, for example, speaks of “people,” not “citizens,” and thus protects the right of all people to exercise Freedom of Religion and Speech. A ban on Muslims would also arguably violate the plain language – or at least the spirit — of the Equal Protection Clause of the Fourteenth Amendment, which prohibits state governments from denying any “person” the equal protection under the law.
It should also be kept in mind that there have been many proposals in the past to ban “foreigners” of one ilk or another, and with the few notable exceptions previously mentioned, such isolationist and xenophobic views have never been implemented. Throughout U.S. history, there have been “Nativist” movements, whereby American groups and even political parties have sought to lift the drawbridge into the U.S. by seeking to bar all further immigration into the country. But if there is any clear lesson in American history, it is that successive waves of immigration have infused this country with the dynamic energy that has built the U.S. into the economic powerhouse that it is today, and in all probability, present and future immigration will continue to provide this same kind of energy. Just take a walk around virtually every American city or town, take a ride in a taxicab (or Uber), dine at a local restaurant, take notice of who is mowing the lawns, and you can see the faces of immigrants doing the necessary work that natural born Americans chose not to do.
One important legal question is that if a President Trump made good on his promise to ban Muslims from the U.S., who would have legal “standing” to challenge such a policy. Certainly, a Muslim outside the U.S. would not have the right to mount such a challenge since no foreign national has a constitutional “right” to enter the U.S.. In all likelihood, a legal suit would be commenced by one of the thousands of Muslim refugees from Iraq and Syria who are already in the U.S. and who have sought asylum. Since they are already in the U.S., and there is a strong body of law already in place recognizing the due process rights of detainees in deportation cases, they would be in a strong position to argue that there is no legal or even rational basis for deporting them solely based upon the arbitrary and discriminatory views held by Mr. Trump and others regarding their religious beliefs. Moreover, given their physical location on U.S. soil, these Muslims could also argue that they have a huge personal stake and “property interest” in remaining here in the U.S.
Given the fact that legal scholars and Supreme Court justices must be painfully aware of the Court’s tragic record of jurisprudence upholding blatant discriminatory legislation targeting specific groups, such as the Chinese or Japanese-Americans, it would be expected that this Supreme Court would take a more enlightened – and critical – view of any legislation or executive action to ban all Muslims from entering the U.S. As P.T. Barnum was fond of saying, “No one ever lost money underestimating the intelligence of the American public.” Hopefully, the same will not be said about the current or future Supreme Court. But only time will tell. In the meanwhile, it is important to recognize that the question of whether Muslims may be barred from entering the U.S. solely based upon their religion is not just a legal and constitutional question, but also a fundamental moral and ethical one that may define what it means to be an American for generations to come.