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Cracks in the rule of law
put his finger on what's really disturbing about today's news: the breakdown of the rule of law as the Department of Homeland Security flagrantly violates the orders of Federal judges... and somewhat hidden by the chaos, the elevation of Steve Bannon to the Principals Committee of the National Security Council. Yes, Bannon - the guy who said this:
“Lenin wanted to destroy the state, and that’s my goal too. I want to bring everything crashing down, and destroy all of today’s establishment.”
You should always try to look behind the crazy new stories that Trump creates, to see what's going on more quietly. Trump is not dumb. He may seem dumb, but he would not be bossing all of us around if he were dumb. When we make fun of him we may temporarily feel we're winning... but so far, we're losing.
We need to get serious. If we let him get away with violating the orders of Federal judges, there's no telling what he'll do. Phone your senators and representatives - it's more of a pain than sending emails or playing around on social media, but that's exactly why it works. This website makes it easy:
Next I'll quote Yonatan - if you didn't read his whole post, please read this!
Some updates on the political situation. Everything is very preliminary right now, because it's (apparently deliberately) unclear.
Several Federal judges have issued stays against the "Muslim ban" order. However, there are confirmed reports from multiple sources that Customs & Border Patrol (CBP, part of the DHS) is willfully disregarding those stays, denying access to counsel, moving the people they're holding to undisclosed locations so that nobody can get habeas corpus, and deporting people. This is very certainly not a local commander's decision; it goes up to the Sec'y of HS at least, and directly to Trump at most.
But – and here's the kicker – it's incredibly unclear what the scope of this refusal is. There's no clear news coming out, and we're getting more useful reports from the Twitter feeds of top attorneys in the field (both from groups like the ACLU, who have done heroic work tonight, and from attorneys at top firms, who have been joining this pro bono) than we are from anywhere else.
If this is a refusal of unambiguous Federal court orders, then this is serious, serious beyond the scale of anything we've seen in our lifetimes: it's DHS saying that if Trump tells them to do one thing and the courts another, they will do what Trump says and best of luck to the courts trying to enforce that. Which is to say, they're establishing a precedent that DHS actions are not subject to any sort of court review, or to anything other than the personal fiat of Trump – including their right to detain people, deport them, or hold them incommunicado.
Alternatively, this might be something else, a decision by CBP counsel that certain court orders don't apply to certain cases; this is serious too, since they're trying to create "facts on the ground" faster than the courts can react, but it doesn't mean a wholesale rejection of the system of law. I simply don't have enough information yet, and hope to update as we know more.
Separately, there was another story today: Trump reorganized the National Security Counsel. The two most prominent changes are this: Steve Bannon now has a seat on it, and the Director of National Intelligence and the Chairman of the Joint Chiefs of Staff were both demoted: they only attend meetings of the Principals Committee which "[pertain] to their responsibilities and expertise."
(The other full members of the PC, incidentally, are the secretaries of State (Tillerson), Treasury (Szubin), Defense (Mattis), and Homeland Security (Kelly), the AG (Sessions), the President's Chief of Staff (Priebus), the National Security Advisor (Flynn), and the Homeland Security Advisor (Bossert). You can read the full order here: https://www.whitehouse.gov/the-press-office/2017/01/28/presidential-memorandum-organization-national-security-council-and)
The demotion of the DNI and CJCS is surprising and I don't yet know what it means. There currently is no DNI – Coats' nomination is yet to be confirmed. It's hard to imagine what meetings wouldn't pertain to their "responsibilities and expertise," especially given that secretaries with much more specific responsibilities (like Treasury) weren't demoted. Bannon's promotion, however, is more significant: Trump is known for not attending many meetings, and delegating those, and Bannon is likely to be his principal representative in the NSC.
My gut read is that this is something which will prove very important in the long run. Trump's rift with the existing military and intelligence establishments is well-known, and he's made numerous statements, directly and through surrogates, about his interest in constructing alternative establishments reporting directly to him. Bannon would be a logical person to manage that subchain, as his "Chief Strategist" role doesn't come with a large org to manage already, or with Congressionally mandated restrictions. That would be the skeleton of a new internal security system, with the DHS and FBI (both very loyal to Trump) in the loop, together with a new private "security force" rolling up to Keith Schiller that takes over a lot of Secret Service roles, and a hypothetical new intelligence force, with Bannon being either de facto or de jure in charge of all the new organizations, and little to no legal supervision over them.
It's not clear, again, that this is where it's going, but it's definitely the configuration I would keep my eyes open for. It would promote Bannon from a Goebbels to a Himmler, which I suspect he would be just fine with.
So: Many signs out there, but nothing clear yet. These could range from incredibly serious to passing things, depending on how the next week or so plays out.
Update (00:51 PST): The DHS has put out an official statement, and I'll be damned if I can figure out what it means. It starts out by saying that they will continue to enforce all of Trump's orders, and that the orders remain in place, but it does offer a nod (later on) to complying with judicial orders.
Text here: https://www.dhs.gov/news/2017/01/29/department-homeland-security-response-recent-litigation
Update (02:06 PST): The Washington Post's story pulls together a range of official statements, which make it clear that this is deliberate and central policy, ordered personally by Trump. The exact meaning of the DHS statement remains unclear, but most people are reading it as an intent to continue to do whatever they want; it may involve a suggestion that if they don't want to grant a waiver to someone with a green card, they may do it by simply revoking the green card on the spot.
Update (07:55 PST): Sources confirming that DHS lawyers had flagged the banning of legal permanent residents as illegal ahead of time, but were specifically overruled by Bannon. Note the implications both for the deliberacy of the act and for the extent of Bannon's power. Also, Priebus confirmed on "Meet the Press" that the omission of Jews from the Holocaust Remembrance Day statement was deliberate and is not regretted.