tv Washington Journal Joshua Geltzer CSPAN April 24, 2018 6:32pm-7:03pm EDT
for the proposition that the government can't stop the presses in advance, but the court actually acknowledges there's a possibility that once the "new york times" and "the washington post" published this, there could be prosecutions afterward. >> i think the gravitational force of the "new york times" case has created a political atmosphere where, within hugely broad bounds, we do not go after the press for publishing things, even where the statute seemed to say that we could. >> watch landmark cases, "new york times" v. united states with floyd abrams who represented the "new york times" in its case against the nixon administration and ted olson live monday night at 9:00 eastern on c-span. joshua geltzer, former counterterrorism senior director at the national security council under the obama administration
and currently georgetown university law school, the institute of constitutional advocacy and protection where he serves as executive director. good morning. >> good morning. >> the supreme court discusses the president's travel ban tomorrow. could you set up what will be debated but what's at stake? >> sure this has a complicated history, the third attempt by the president to deliver on a campaign promise of this travel ban but the first time it's actually reaching the supreme court on the merits in full. the first two were temporary bans, expired before the case could get to the supreme court. now the third one is indefinite, made it to the court and when it was issued it was called a proclamation, it applied to eight countries, six of them were muslim majority countries and in this third our attempt at a travel ban some north koreans were added and venezuelan diplomats. c.h.a.d. was removed a couple weeks ago. this was tied by the white house
back to a promise donald trump made when he was a candidate to deliver on the total and complete shutdown of muslims entering the united states, those were his words. this is that project now finally getting to the highest court in the land. >> as far as the positioning or at least georgetown university, where do you stand on it? did you contribute anything to the supreme court? >> i am proud to be sig tear to an am cuss brief, friend of the court brief joined by 51 former national security officials to both parties. our view this doesn't address a national security threat. it holds up national security as a pretense. when this proclamation went into effect it kept 150 million people from entering this country with the stroke of a pen. that's not the sort of aapproach to counterterrorism i or my colleagues are familiar with. threats come from individuals, that's why we have an individualized vetting system. keeping out whole countries is bad for counterterrorism
partnerships and bad for america's standing in the world. >> so when the court debates this tomorrow, what will be the arguments not only from the government's standpoint but those the state of hawaii which is bringing the counter? >> the challenge is brought by the state of hawaii and other plaintiffs. the government says the court has nothing to see her. they say there's nothing for the court to get into in the substance of this case, it's offlimits. that's a bold argument given how controversial this is and it doesn't accurately capture what the court has done in the past. similar challenges where they have reached the herit merits o case, the government makes the argument that the president deserves judicial deference, it deserves courts to defer to him because he's acting in the name of national security. we've weighed in, there is no threat articulated by this government to justify that. ultimately the challengers say this is inconsistent with
immigration law as given to us by congress. congress has said you can't keep out people on the basis of nationality. you can't act on emergency powers indefinitely but both of those things are just what the president has done here and ultimately the challengers say this violates the first amendment of the conversation. >> the travel ban being debated by the supreme court is the topic for this segment. 202-748-800 for democrats and independents, 8002. i'm no lawyer but people who defend the president's actions reference title eight of the u.s. code which says "whatever the president finds the entry of aliens of any class into the united states would be detrimental to the interests of the united states he may by proclamation suspend the entry of all or any class of aliens or impose on the entry of aliens
any restrictions he may deem to be appropriate." why doesn't that cover this case? >> that's the right place to start, with the text of the statute. there are a couple things worth keying in on. first is the language "for whatever period he deems appropriate." this third travel ban is indefinite, it violates the theme of system existence. another key part of that language is that idea of a class of aliens and part of the argument here, there's nothing definable about 150 million people. collapses mean something that you can put your finger on, they pose a particular type of threat. maybe they were ex-poeszed to a particular type of disease, that seems to be the type of thing congress had in mind in writing carefully those words but 150 million people across eight countries there's nothing you can say common across a set so wide and that's part of what hawaii is challenging. >> some cast this as a religious span. does it come in the text release
argument that the government makes? >> religion plays by how the white house framed this project as a whole. after the president issues the third attempt at the travel ban, the one called a proclamation, they're ever he retweets three anti-muslim videos posted to twitter by a british far-right poll significance and the deputy press secretary is asked by a journalist later, what was the president doing? what is his view and the answer is, the president, this is the answer given by the deputy press secretary, the president has already addressed these issues, most recently through the issuance of the proclamation and travel ban. that's the white house saying this proclamation delivers on that campaign promise to keep out one particular religion from entering this country so that's part of the argument before the court. >> is it fair to take things made during the campaign as a candidate, not as a president, and apply them to someone who makes policy as a president?
>> i don't think you need to go to that. it's a good and tough question. here i don't think you need to get back to those campaign statements. you have enough after this president was president. you have when he sits down to sign the first travel ban he reads the bureaucratic tithele and says we all know what that means, then he has surrogates like rudy giuliani go on television and ultimately the third one being tied back to videos, those weren't videos by national security. those are videos about islamaphobia. you can put aside what he said on the campaign trail and take what this white house has said after january 20 of last year and still see the problem with erecting things at our borders. >> can that apply in this case? >> i appreciate you asking that. there's some confusion. the previous administration dealt with the visa waiver program.
you can think about that program as extra credit, it's the bonus that countries get if they have really excellent vetting systems and really excellent ways of sharing information about their nationals who may be coming to this country. if they do a great job of that their nationals can enter this country, can travel here more easily. that's supposed to be adjusted depending on how well other countries are doing. it's a carrot and a stick for president. the previous administration did use it for those purposes at times taking countries that had been receiving the extra credit and moving them back to the baseline. what the previous administration never did was go below the baseline and that's because that baseline is by statute by law and says this was a big deal in 1965 it was a change and it made the law say country by country is not the way to keep folks out of the you state. >> joshia gelzer has the discussion about the travel ban debated before the supreme court tomorrow. first call from craig on our republican line, you're on with our guest, go ahead. >> caller: thank you, good
morning. yes, i have first of all i find it interesting that a district judge in hawaii has more power than the will haof the american people as represented by the vote we had in 2016, but my question is, if the establishment clause of the constitution for bids the establishment of a religious through immigration policy, why was the lautenberg amendment permitted to allow jewish immigrants specifically from russia in 1991 i think it was? >> you raise an interesting point how judges, now justices are dealing with the case. judges and justices aren't there to intervene in ordinary politics, not there to overturn the will of the voters, but they
are there to patrol the outer limits of what in this case the executive candidate, that's always the job of judges, whether it's one district judge hearing a case at beginning of a saga or nine justices hearing it at the end of a long saga. their job is to make sure congress and the president act within legal boundaries. to go to your other point, this is not something the presidents have done before to keep people out. they have not on the basis of nationality said no to those trying to enter this country since 1965. some people point to one counter example, when cubans were kept from entering but that was when cuba had violated treaty obligations so those entering the country at that point were themselves essentially manifestations, personifications of a treaty violation. that incident never made it to the supreme court, one doesn't know how the court would have come out. here it's clear the president has violated the change to the
law enacted in 1965. >> maryland, independent line. >> caller: thanks for taking my call. this argument comes up about the idea the president can put restrictions on travel bans on certain countries. here is the strange part of this argument. when you refer to it as a travel ban, but when you talk about the wars overseas you would never refer to the war as a majority muslim country we're at war with. if there's no security issue with this, you're not worried about national security, are you basically saying that you're at war with a country, say a majority muslim country, and forget about the majority muslim ban. if you're at war with a car can't you consider limiting to travel to the country you're at war with? thank you. i'll take the comments off air. >> to the extent we are engaged
in armed conflict, we are really not at war with those countries. we are in a state of armed conflict with the terrorist groups that are threatening us, threatening others from those countries, this was something i spent a lot of time working on in government, some of the countries covered by the travel ban, libya, searia, we ayria, w military force against terrorist groups, isis, individuals linked to al qaeda but not the countries as a whole. even using military force in individualized way. our military works hard to ensure the targets of military action as individuals are lawful targets under domestic law and under international law, the law of armed conflict. that individualized approach taken to a different context is what i'm urging here and what congress is urging. you caller mentioned this issue has come up before and worth pointing that out. this is something congress has debated after 1965, even after
9/11, whether this should be an approach to regulating immigration done on a country-by-country basis the way it was done a number of decades ago. congress has consistently said no to that and if president trump wants to revisit that issue congress is the place to take that debate to. he's bound by it. >> does the supreme court only take a strict look at the law or does it consider the larger national security implications that may be outside the court's purview in a normal sense? >> i think the court grapples with what deference is appropriate. that's often how the argument gets translated into something meaningle for the court. the starting point for the court and you hear justices and lower court judges say this when they talk about the art of judging, it begins with close readings of texts, that was part of justice scalia's legacy. start with the text and here the court would be wise to start with the text of the ina amended in 1956 and go from there. >> our guest not only served in the obama administration, he was
the law clerk to stevphen breye and circuit court of appeals and currently georgetown university law school. scottsdale, arizona, republican line, jack, go ahead. >> caller: yes, good morning. first i'd like to make a comment before i ask mr. geltzer a question. we already have, what, a million people come into this country, needless to mention, we have 10 or 15 illegal mexicans here, not to count chinese and all the other different ones. the bottom line is, okay, we need to go to, under this travel ban is the issue we're discussing, but we need to go like australia in the system we should select exactly who we want to come in. now this travel ban is sort of like that, okay?
we decide who comes in here. now my question is, to mr. geltzer, what would you do, and i'm sure you have any part of your family, like in arizona here, we've had illegal immigrants deported, murder people, what would you do if one of these people that got in on this thing you're fighting for, murder someone close affiliated with your family? >> jack, leave it there. >> i think what the caller points out, this is obviously an issue that excites people's passions and in the realm of political debate as to how we approach immigration. that's something a lot of us have been urging for a while to have a debate on immigration beyond this travel ban on the comprehensive issue but that's a debit that has to involve the president and the u.s. congress. it's article one of the constitution that puts the authority really the responsibility to set what the constitution calls a uniform
rule of naturalization, immigration policy and charges congress with that responsibility. if the president wants to take a different approach, whether that approach is country by country, nationality by nationality or otherwise he's had over a year now to engage with congress and appears to have done nothing to change that law. the law binds him. like the rest of us, the criminal laws must be and are enforced against them but it begins with the debate over changing the law, not simply the president with the stroke of a pen reporting to alter it. >> do previous cases suggest how the court might act in this case? >> i think there's a lot there for different justices who may bring to the case different interests. you have some who will start as i mentioned with the text, they'll find it interesting trying to put together the pieces of the immigration and nationality act and how it changed in 1965. but then you have justices who have long been interested in the question of how much of congress's constitutional authority can it give it way to
the president. here if the president is able to do what the government says he could do it suggests that maybe congress has given away too much, which may be a reason not to read the law that way and other justices may home in on the establishment law questions, the religious questions. i'm interested to see which justices take which pieces in oral argument and of course by june we'll probably see which justices come out which way. >> how do justices like anthony kennedy, tends to be the swing vote on a lot of these different cases, how has he responded to previous cases like this before? >> it is so hard to read tea leaves. not just the current group of nine but their predecessors often have been differential coming to national security. counter examples the steel seizure cases and guantanamo cases. when the court chooses not to accept that framing from thegage
deference requested by the executive branch they feel the national doesn't hold up. >> republican line, lauren from minnesota.here. >> republican line. lauren from minnesota. on immign and i wish they would allow him to do more. . >> good morning. i think trump is doing an excellent job on immigration. i wish they would let him do more. i'm 74 years old. i've never seen so much different people in the country. they come here and want to live the american dream. they have the ropes over their heads. go back to the way we do that. we don't do that in america. and maybe we should drop them off the map as far as hawaii and let that judge have all the immigrants come in there. >> okay. let's go to arthur in new
orleans, democrats line. good morning. >> good morning. it's interesting people trying to immigrate to this country. this is a country of immigrants, period. one of the things that everybody is failing to look at is that there is what is called a bigot factor of the people they want here and the people they turn away. a good example of that, the people coming from south america come here to have a baby, they want to throw the baby on the mother's back. instead they come from russia here purposely to have babies, and then they're living in trump's property. what's wrong with that? something wrong with the whole picture, don't you think? >> i think the caller has put his finger on why this case is so important, maybe even beyond the legal arguments and those of us who are law professors may tend to focus on those. but beyond that, this is in many ways a case about the soul of this country. as the caller mentions, this country is overwhelmingly a country of immigrants, and to the extent there is a political
debate over what that should mean. that's a debate to be had within the bounds of the law. but it's also one to be had recognizing what this country is and who we are. i think the caller put his finger on why there is a lot to watch for this week. >> democrats line, missouri. this is john. >> caller: yeah, hi. how are you doing? >> fine, thanks. go ahead. >> caller: let me give you a little history. i'm 73 years old. i voted democrat for 50 years. i've been a democrat. i even voted for obama the first time he ran. however, after obama's first time in office, i switched to the republican party. my problem is with the democrats anymore if you've lost touch and reality with the people in this country. you want all these immigrants in here, and you think it's fine for them to be here. but every time i walk out the door, i see somewhere in this city homeless veterans. i see senior citizens that can't
eat. you're spending millions and millions of dollars on these immigrants so they can survive. you're giving them food. you're giving them utilities. you're giving them money to live on while the senior citizens are struggling to make ends meet because some ass in congress said i can't live on $200,000 a year. i need a raise. but the guy on senior citizens -- >> okay, john, please make your points towards that. >> caller: okay. my point is this. how can you actually tell the american people it's fine for these immigrants to be here and be against what trump wants when first of all you don't invite someone to dinner that is trying to kill you. and second of all, what about your homeless veterans and your senior citizens? >> okay. john, we'll leave it there. >> this doesn't strike me as necessarily a partisan issue. it's a congress that has worked in different manifestation, democrat-leaning, republican-leaning, and with different presidents to give us
the immigration law that we have now and that is the backdrop for this case. it was of course a republican president, president bush who engaged with congress after 9/11 about immigration policy. and it's a republican president, president bush who helped frankly improve the individualized system of vetting that currently is the hallmark of how we do immigration in this country. i would also add that among those of us who worked on national security and feel strongly that this case is one in which national security is being held up as a pretense by government, that's also bipartisan group. it's not just folks like susan rice who worked for democrats, but it's folks like richard lugar, a republican who have chimed in this case. >> the "washington journal" this morning in the editorial system talks about the travel ban. the editors make this argument from previous cases saying it was chief justice jean-roberts. he explained in the holder versus humanitarian law project in 2010 that the judiciary is ill suited to make national security judgments since, quote,
information can be difficult to obtain and the impact of certain contact difficult to assess. when it comes to collecting evidence and drawing factual inferences in this area, a lack of competence on the part of the courts and respect for the government's conclusions is appropriate. >> so i agree with the line from the chief justice verbatim. i think he is spot-on. the question is does one need to defer to the government, the executive branch here? i don't think so. this is a case where it's really about reading the statute and if necessary reading the constitution and how the first amendment has been interpreted that says the president can't do this. i think it helps to say the president also hasn't articulated a good national security reason that would get him into the lane that that quotation mentions. for example, the ninth court of appeals after it struck down one attempt said in the opinion the statute requires findings. if the president wants to try this again, write down something more to articulate what is the
national security basis. the government didn't respond to that, hasn't done that, hasn't offered up something even at the most general level beyond saying initially we need to keep people out of this country, and now really in a shifting rationale saying we need to incentivize better information sharing with certain foreign partners. >> from mark in sir spring, maryland, independent line. good ahead. you're on with our guest. >> caller: hi. i just wanted to i guess agree with one of the callers saying that, you know, so i work on national security. i love this country. i feel if we're going to be anti-immigrants, we don't have any value left as a country. what's left to fight for? what are the -- what does this country stand for? what makes us better or different from any other country in the world? >> that certainly goes to the heritage issue which is why i think this case so-so important
beyond the legal ins and outs of it. it is of course a tradition of this country founded by immigrants to welcome immigrants. now i believe in national security as well. and i believe in keeping this country safe from not just terrorist threats, but frankly, the whole range of very real threats to this country. i just don't believe that what the president has done here is responsive to those threats in any meaningful way, and it goes beyond what the president has the authority to do under immigration law and the constitution. but i'm all for keeping this country safe. and i'm all for if this president is concerned about how the individualized vetting is being done if people coming into this country, him working with those across the intelligence community, with law enforcement officials to improve that system. that's an ongoing project. it's been improved since 9/11 repeatedly. and if there is more work to be done there, that's where the president i think should be focusing his effort. >> the court goes for hawaii, does it limit the president in future decisions to put bands in place of a similar nature?
>> so much hinges of how the court writes down its reasons for reaching a result. let's say for example nationality was taken off the table in 1965. whatever the president can and can't do to keep folks out of the country, he can't do it on the basis of country, of nationality. that actually would yield an interesting possibility. it would yield the chance for this president to go right down the street from where you and i are and talk to the congress than. it hasn't been changed since 1965. but that would be where that sort of conversation would take place, because that would be in the shadow of showing that the statutes passed by congress really do set meaningful constraints on the president. >> here is phil in texas, independent line. go ahead, please. >> caller: i'm calling about the obama administration, and what were the percentages of christians that were brought over compared to the muslims? >> i don't know the exact figures on that. but i do know that the obama
administration in approaching the immigration issue tried to do at least two things. one, to stay within the bounds of the law, to utilize the tools given to it by the law. and that's where the visa waiver program that i mentioned earlier came into play quite prominently. at the same time, to work on the individualized vetting signs. there were improvements made throughout those eight years attempting to insure all the information asked by law enforcement by the intelligence community was used and used as effectively as possible to identify those who might come to this country and pose threats. and that's where i think an ongoing project of improving the system should continue. >> john in elbow lake, minnesota. republican line. hi. >> caller: good morning. i'm hoping that as a senior adviser to presidents, might have an answer for this off the top of your head. i'm wondering how many countries that the trump administration has added to the list that they inherited from the obama
administration, i believe it was six or seven countries, since he's been in office, and how many muslim countries there are actually? thank you. bye. >> so to be clear, there were no countries receiving this sort of treatment before president trump came along. his first travel ban applied to seven muslim majority countries. his second one applied to six. iraq was removed. and then the third one, the one making its way to the court now applied initially to six muslim majority consultants plus north korea and a handful of venezuelan diplomats. chad, one of the countries has been removed. that all adds up to five muslim majority countries consistently in play. the core of this project. and then the north korean, venezuelaia piece. >> joshua geltzer formerly of the obama administration and georgetown law school talking about the travel ban case being heard on wednesday.
thank you for your time, thanks for having me on the show. friday morning, we're in salt lake city, utah, for the next stop on the c-span bus 50 capitals tour. utah governor gary herbert will be our guest on the bus during "washington journal" starting at 9:45 a.m. eastern. sunday morning on 1968 america in turmoil we look at the media's role in shaping how americans experienced the events of 50 years ago. our guests marvin cowl, former cbs and nbc journalist and founding director of harvard university shorenstein center on media and public policy. and david hume kennerly, pulitzer prize winning photographer who covered president kennedy's presidential campaign, the vietnam war and the white house. watch 1968, america in turmoil, live sunday at 8:30 a.m. eastern
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