(Photo by Stephanie Keith/Getty Images)
If transparency is an antiseptic, then more people should take time out during the day to wonder what’s been going on with the administration’s infamous Muslim Ban ever since the United States Supreme Court decided they could look past televised statements like “we want to ban Muslims” to find a neutral and non-discriminatory motive for the policy. Because the policy may have slipped from the headlines when officials stopped turning people away at the airports, but with the policy moving out of the headlines, the capacity for abuse has ramped up and exacerbated a human rights crisis.
The Center for Constitutional Rights wants America to start paying attention again.
CCR, continuing their historical mission of “hitting them where they ain’t” advocacy, largely sat out the original influx of Mulsim Ban cases, Executive Director Vince Warren told me this weekend at the Netroots Nation conference.
Other non-profits and major Biglaw pro se efforts were aligned against the government. More importantly, state attorneys general were leveraging their considerable resources against the policy. For CCR, its resources weren’t as critical to that immediate fight. After the White House changed the policy to include a “waiver process” to grant the policy a constitutional fig leaf — if someone can get in on a waiver, then it can’t possibly be a blanket policy! — CCR saw the opening for its patented brand of advocacy. “When we got to the third iteration with a waiver provision it became clear to us that this was something the Supreme Court would probably find constitutional,” Warren said.
So CCR works on matters that flag the administration’s “waiver policy” for the mostly empty promise that it is. What they found is a fully offshored initiative shutting down access to America at local embassies around the world that won’t return calls if they’re even open at all. It’s the focus that produced the study cited by Justice Breyer in his dissent focusing upon the “window dressing” that the waiver process afforded.
That point about not being open at all is the heart of the human rights crisis the Muslim Ban is causing in Yemen and Djibouti. The U.S. abandoned Yemen diplomatically as the civil war intensified and those seeking to leave the country — including in many cases those with direct familial ties to the U.S. — have had to sell everything and decamp to Djibouti as a way station on the path to America.
And Americans have almost no grasp of the financial costs these folks incur in the effort to come to America, many paying over $100K in the effort. It’s a price they’re willing to pay because in most cases CCR’s clients are in the situation of being the one or one of the few family members who are not already in America, if not American citizens themselves. That’s the key to the government’s initiative CCR’s Ibrahim Qatabi explained, “many times it’s just one family member left out. It’s used as a deterrent to keep the whole family from coming over.” If that sounds like the systematic family separation at the Southern border, it’s because this is just another component of a broader xenophobic policy.
For every important story from the border, there is another less heralded tale, like the one of a CCR client whose four Yemeni children were separated from their parents because the children secured their visas before their mother, forcing their father to stay behind rather than abandon her alone in Djibouti, a country foreign to her. They have finally, after the spotlight turned on the case, secured the final visa and been reunited. But again, the misplaced visa for a single family member isn’t as much about the law — it’s about deterring the whole, approved family from coming at all.
CCR’s fluid form of advocacy leads them to attack the crisis in a few different ways, Qatabi and Aliya Hana Hussain of CCR told me. On the one hand is advocacy work, filing cases to force the Trump administration to issue visas. In many cases, CCR is representing people who were actually approved before the ban. It’s a strategy that exposes the as applied unconstitutionality of the waiver process. But it’s also a tactic that has successfully secured multiple waivers from an administration that seems to understand that fighting these cases would undermine their fundamental constitutional argument. And yet, the government’s willingness to backtrack whenever confronted with a lawsuit also proves just how arbitrary and capricious the whole process is.
The group is also working on community empowerment initiatives, working with other groups on “Know Your Rights” efforts as well and media outreach profiling clients to bring a little more transparency to exactly who is being targeted by the Muslim Ban. Underscoring that litigation isn’t the only avenue for effective advocacy, CCR has seen success with the federal government backing off visa bans to blunt compelling human stories of separated families.
It’s a red flag when the government sees fit to back down whenever hauled into court or dragged on television. It’s just part of an overarching strategy — along with moving the ban’s operations overseas — of keeping the impact as shielded from the public as possible.
So we should all probably pay more attention.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.