The filing is notable not because of the novelty of the former intelligence officials’ arguments, but because they give the case against Trump’s entry ban a national security credential that many of its other opponents cannot.
The Justice Department has argued that judges could not make an appropriate determination of the effectiveness of Trump’s entry ban in protecting national security without the advantage of national security clearance and briefings. Four of the filing’s authors — Haines, Kerry, Monaco and Rice — told the court they were “current on active intelligence regarding all credible terrorist threat streams directed against the U.S.” as recently as one week before Trump’s order.
The former intelligence officials argue that Trump’s entry ban misses its intended target — potential terrorists. “Since September 11, 2001, not a single terrorist attack in the United States has been perpetrated by aliens from the countries named in the order,” they write in the brief. “Very few attacks on U.S. soil since September 11, 2001 have been traced to foreign nationals at all.”
The former officials argue the entry ban, if allowed to continue, would compromise U.S. national security by immediately placing American troops fighting alongside soldiers from the affected countries in harm’s way.
Further, they say, the order would make key countries critical to obtaining intelligence needed to fight ISIS and other terror groups reluctant to share that information.
Because of the order’s “disparate” effect on Muslim travelers seeking to enter the U.S., the authors write that the entry ban effectively acts as propaganda for extremist groups like ISIS, by sending the message to Muslims “that the U.S. government is at war with them based on their religion.”
Trump has argued that the entry ban is needed while a review of the government’s system for vetting refugees and others seeking to enter the U.S. is reviewed. The authors defend the national security vetting apparatus developed since Sept. 11, 2001 as a “rigorous system of security vetting, leveraging the full capabilities of the law enforcement and intelligence communities.”