Four young women stood in the shadow on the Trump International Hotel and Tower, near Columbus Circle, in Midtown Manhattan. Participating in a demonstration there on November 13, they held a Mexican flag with the phrase, “We’re here to stay. Students need DACA” written on it. DACA — Deferred Action for Childhood Arrivals — is one of President Obama’s signature immigration achievements, a policy to provide relief to children whose immigrant parents brought them to the United States at a young age.
President-elect Donald Trump has promised to revoke DACA — authorized by executive order rather than by Congress — on day one of his administration. When I asked one of the young women holding the flag to describe what she had been feeling since the election, she said, “uncertainty.”
If there is one word to describe the feeling right now in the United States, it is that: uncertainty. Journalists, activists, lawyers, government officials and formerly apolitical citizens all seem to be struggling with how to assess Trump’s win. What can he do? Who can stop him? The truth is no one really knows, and that is terrifying for the marginalized populations Trump has been targeting for the last year and a half.
The young woman with the flag was one of thousands who took to the streets on Sunday to protest Trump’s win, and his promise to deport at least 2 to 3 million undocumented immigrants. Her sentiment was echoed by Jose Lopez, organizing director at Make the Road New York, an immigrants rights group that called for the protest. “There have been a lot of tears. A lot of uncertainty,” he told me, Trump’s building looming in the background. “But there’s been a lot of hope.” The hashtags for the event were #HereToStay and #NoNosVamos, declarations of strength from a community that now faces an unprecedented level of threatening unpredictability.
Looking at the makeup of the incoming government, it is difficult to find much hope. As the New York Times editorial board wrote, “There is no obvious check on Mr. Trump’s vengeful impulses.” They are correct, insofar as the governmental apparatus is concerned. But there will be resistance, and it will come in the form of non-governmental organizations, civil society, leakers and whistleblowers, technologists who will frustrate efforts at mass surveillance, and the many thousands who will continue to march in the streets.
Grassroots organizers around the country are seeing spikes in membership and donations. “I’ve been bombarded with phone calls,” Tony Papa, manager of media and artistic relations at Drug Policy Alliance (DPA), told me in a phone interview. Papa is the author of This Side of Freedom: Life After Clemency, and praised President Obama for issuing some pardons to prisoners convicted on drug charges. Papa hopes that Trump will continue that trend, though that’s unlikely given the president-elect’s promise to restore “law and order,” a phrase often used as a dog whistle for racist criminal justice policies. Still Election Day saw several victories for the movement to decriminalize marijuana. “Grassroots organizations like DPA are preparing ourselves to fight tooth and nail to protect our hard fought victories,” Papa says.
Other resistance movements, like the No Dakota Access Pipeline (NoDAPL) protests, have grown since the election. NoDAPL actions reportedly took place in 300 cities worldwide on the November 15 day of action, and Trump’s financial stake in the pipeline is only likely to engender further anger.
Annaluisa Padilla, president-elect of the American Immigration Lawyers Association, has seen the psychic impact of Trump’s election firsthand. “One client who had just received her green card called, sobbing uncontrollably, because while she had been granted legal status just one week before the election, her brother has no avenue to a green card,” Padilla told me. “I have young people, kids, who received Special Immigrant Juvenile status based on horrific and traumatic childhoods. They are terrified that a family member will be deported to the same country from which they fled.”
Across the nation, fear is palpable. Predictably, however, mainstream Republicans offer no satisfactory response.
“There are millions of Americans who are frankly terrified about what a country under President Trump will mean for them,” CNN’s Jake Tapper told House Speaker Paul Ryan in an interview. Ryan responded that he “hate[s] it that people feel this way,” and insisted the United States is a “pluralistic country and inclusive country.” That such a statement needs to be made illustrates the dark cloud hanging over the country.
Padilla and her association, for their part, are promising to lobby Congress to stop Trump’s proposals when possible. Trump will need Congress to approve billions in new spending to accomplish his deportation goals in the timeframe he’s suggested, and whatever happens with the “wall” will require congressional funding as well. Beyond Congress, Padilla and other advocates will bring lawsuits and fight deportation proceedings in court.
But, like Trump’s promise to repeal DACA, he won’t need Congress for many of his proposals. As reported in Bloomberg, Trump can direct Immigration and Customs Enforcement officers to broaden enforcement guidelines to include immigrants without criminal records, and can direct cops to increase intelligence sharing with the Department of Homeland Security.
“Trump’s advisors will seek to widen that net to include migrants who have been charged but not convicted, suspected gang members and drug dealers, and people charged with such immigration violations as illegal reentry and overstaying visas, as well as lower-level misdemeanors,” as reported by the Los Angeles Times. It’s no surprise that private prison stocks soared following Trump’s victory.
Outside of immigration, some of Trump’s most offensive statements have concerned national security and the civil liberties of Muslims in the US and abroad. He has promised to bring back waterboarding and “a hell of a lot worse,” kill families of suspected terrorists, ban Muslims from entering the US, and take oil from countries in the Middle East.
Waterboarding and other forms of torture are explicitly illegal under US law, but that hasn’t stopped a key architect of the programs under George W. Bush from advocating that Trump bring them back. Jose Rodriguez — who headed the CIA’s clandestine service under Bush and destroyed tapes documenting US officials torturing detainees — believes Trump should revive the program.
For now, it appears unlikely that Congress would repeal the 2015 torture ban, but should the Trump administration find some way around the prohibition — possibly in the aftermath of a terrorist attack on US soil — the country would once again find itself squarely outside the bounds of international law. “The obligations in the 1949 Geneva Conventions, to which the US is a party, have been universally agreed and accepted,” Anna Nelson, spokesperson for the International Committee of the Red Cross, told me. “All nations are therefore legally bound to comply with their provisions.”
It’s not clear what official censures or sanctions the US might find itself under if the CIA or military reinstitute a policy of torture, but the damage to the United States’ reputation could arguably be worse than the destruction wrought by the Bush presidency. Cori Crider, a national security lawyer and freelance journalist, say there are some limits the international community can put on President Trump. “It’s going to be hard for a Trump administration to run an exact repeat of [the] Bush-era secret prison regime in Europe, at least, because [European Union] countries (and officials) who colluded with the Bush torture program came in for a hard time legally,” Crider told me. “For example, Britain’s head of counterterror for MI6 was under Scotland Yard investigation until this summer for his role in the 2004 abduction of two Libyan families.”
Crider adds that it’s possible Trump could ask Egyptian President Abdel-Fattah El-Sisi — reportedly the first foreign head of state to speak with Trump after his win — to torture or disappear people on behalf of the new administration. “What we have on our side this time is a much better investigative network in play — I think if people start to disappear from the streets, you are going to hear about it pretty promptly,” she says.
Jonathan Horowitz, a legal officer in the National Security and Counterterrorism program at the Open Society Justice Initiative, tells me that countries around the world have leverage they can — and must — exert on the incoming president. “The international community and individual US allies will have to make their support and partnerships conditional on the administration’s respect for human rights at home and abroad,” says Horowitz. “No joint black-site and torture agreements. No cooperation in airstrikes that target innocent families of suspected terrorists. Diplomatic meetings will have to be marbled with criticism and consequences if the Trump administration doesn’t condemn and prosecute hate crimes in the US. Anything less will only encourage more abuse and, after strong rulings from the European Court of Human Rights, may put some supporting states on the legal hook for being complicit.”
Many advocates have turned their hope to US courts as a way to rein in some of Trump’s authoritarian policies. After Trump’s win, the American Civil Liberties Union (ACLU) promised that if he tried to implement any of his unconstitutional policies they would “see him in court.” The ban on Muslims entering the country is one of Trump’s many obviously discriminatory proposals, and could fail a court challenge.
For now, groups that work on resettlement will continue to try to find a home in the US for people fleeing violence in their countries. The International Refugee Assistance Project vowed in a statement released Monday to continue their work of protecting refugees, though their work is almost certain to become more challenging in the coming months and years. “Now, more than ever, refugees are in need of good lawyers, and we will zealously advocate for our clients’ rights, at home and abroad,” the International Refugee Assistance Project said in a statement. And although an outright ban on Muslim immigrants would almost certainly be ruled unconstitutional, some immigration experts have worried that since the president has broad discretion over border control, Trump could implement a similar policy using coded language that is less obviously discriminatory.
Given the grim reality that the Republicans control the executive and legislative branches, it’s tempting to look to the courts for hope — notwithstanding the Supreme Court — but that optimism might be misplaced. Baher Azmy, legal director at the Center for Constitutional Rights, told me that while some judges may put the brakes on Trump, it’s important to recognize how his administration could fundamentally change that branch of government as well, given the executive branch’s broad appointment powers. “In the short term we should hope that the courts would be repelled by Trump’s autocratic style and his vocal support for ugly, discriminatory and vindictive practices, and that they would accordingly recognize their duty to constrain his authority and reaffirm constitutional principles,” Azmy says. “Over the long term, of course, without strong resistance from the public and the Senate, he will be able to reshape the courts in his own image — and the people must do everything to prevent that.”
Even as courts stand now, in general, federal judges have been exceedingly deferential to the government in areas of national security. Under both George W. Bush and President Obama, judges have accepted Department of Justice (DOJ) arguments against transparency based on the state’s secrets privilege. It’s not just state secrets, either. After early wins for habeas litigation in Guantánamo cases, the conservative DC circuit court has effectively eroded habeas rights over the years. And prior to Edward Snowden’s leaks, the Supreme Court dismissed a lawsuit brought by Amnesty International and the ACLU that alleged the National Security Administration (NSA) was conducting mass surveillance on US citizens. The case was thrown out because the spying was secret, and therefore the plaintiffs didn’t have standing to challenge it — that is, they couldn’t prove they’d been wronged because the spying was secret. The circular reasoning was obvious to anyone who cared to pay attention. Even when judges want to push back against extreme secrecy, some often find themselves unable to, as a famous case from 2013 proved. Judge Coleen McMahon found herself in “a veritable catch-22,” in her words, as she reluctantly concluded she couldn’t force the DOJ to reveal a secret memo that provided the legal justification for killing Anwar al-Awlaki, a US citizen killed in a targeted drone strike. Despite the fact that the administration had discussed the killing of Awlaki publicly, Judge McMahon believed it was beyond her authority to find that the underlying memo had been improperly classified.
Among the Washington, DC, lawyer circles and think tank crowds, there is a debate raging right now about the ethics of joining a Trump administration. In broad strokes, the debate is over whether there is a moral obligation to join an administration one finds repulsive with the goal of either tempering its worst tendencies, slowing down the implementation of terrible policies or blowing the whistle on fraud, waste, corruption, criminality or whatever else the incoming administration might bring. There is, of course, the danger that somewhat restrained lawyers and policy makers would provide a sheen of respectability to a gang of unqualified right-wing extremists.
“Fighting wrongs from the inside can have some effect. But there are limits, and there’s a risk of retaliation,” Katherine Hawkins, senior policy counsel at the Constitution Project, tweeted. “The United States Government does not have a war crimes / crimes against humanity exception to nondisclosure agreements.” One need only look to Thomas Drake, an NSA whistleblower who preceded Snowden, to see how the government can ruin the life of someone who speaks out.
13. Fighting wrongs from the inside can have some effect. But there are limits, and there’s a risk of retaliation.
— KatherineHawkins (@Krhawkins5) November 14, 2016
Yes, this is a time of uncertainty and fear, which is why those already fighting back against Trump are calling for solidarity.
“Immigrants should also remember that they are not alone in this,” Padilla said. “Many advocates, attorneys and community members will not stand idly by if a new administration tries to trample on due process and the values of freedom and justice that America holds dear.”
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