This article appeared in Newsweek on February 2, 2017.
Last Saturday night, one day after President Trump signed his executive order temporarily canceling the travel visas of citizens from seven Muslim-majority countries, and of refugees all over the world, two U.S. congresswomen paid a visit to the Tom Bradley Terminal of the Los Angeles International Airport. Outside of the terminal, hundreds of protesters held candles and picket signs, chanting their support for immigrants and refugees, and their opposition to Trump. (By Sunday the crowd would swell to thousands.)
Representatives Nanette Barragán and Judy Chu came to show their solidarity with the protesters, to learn how many passengers Customs and Border Protection (CPB) were detaining, and whether any of them were from their Southern California districts. “What I quickly found out was that the [terminal’s] CBP office was closed, conveniently,” Barragán told me. They were given a phone number to call. During the next hour Barragán and Chu were subjected to the kind of diversion, buck-passing and stonewalling you might expect from a cable TV company when you try to switch providers. But in this case, the people on the other end of the line were right there in the same building, and the ones making the call were two elected members of Congress.
“It was constant refusal, over and over,” recounted Barragán. When Barragán asked the CBP agent who she was taking her directions from—Barragán was trying to get the phone passed to a supervisor—the agent responded, “the President.” A few minutes later, she hung up on the congresswomen.
When I asked Barragán what conclusions she drew from her experience, she spoke of the challenges Trump has posed to the Constitution. “My role is oversight of the president,” she said. “He’s issued an executive order that’s not just un-American but unconstitutional. We are the oversight of the executive branch. We also have the judiciary, who have issued a stay.”
Miguel Santiago, a Los Angeles assemblymember who had also joined the protesters that night, was even more direct. The executive order, he said, was “a clear reflection of Donald Trump’s campaign and administration, his trying to rule as a dictatorship.”
The CBP’s treatment of the two congresswomen is just one expression of the executive branch’s disdain for even the mildest assertion of oversight as it imposes a temporary travel ban that could be extended and expanded to other nations. Attorneys attempting to help detained travelers found themselves inside a bureaucratic labyrinth of deflection and finger-pointing that led some to question whether the CBP intended to follow judicial orders at all.
Human Pinball Game
Later Saturday night, word trickled out to the swarm of protesters, reporters and immigration attorneys in the Bradley Terminal that a federal judge in New York had issued a stay on the executive order, prohibiting CBP from summarily deporting travelers after they landed on U.S. soil. Cheers went up from the crowd. The grim faces of the lawyers relaxed just a bit. For a moment, it looked as though the checks and balances of American democracy had kicked in and corrected the new president’s overreach, just as designed.
Faith Nouri, an immigration attorney who had helped to organize the demonstration the night before, called the U.S. Marshals Service. She had noticed that, although a stay had been issued, there was no “proof of service” —a document filed in court certifying that the subject of a court order or other legal action has been officially notified of that order. One of the responsibilities of U.S. marshals is to serve these orders. Nouri had already tried to serve the CBP personally, but had been told that it would not receive the documents without a U.S. marshal present. (Neither the U.S. Marshals Service nor the CBP responded to direct questions for this article.)
Even though the court order was all over the news, she didn’t want to allow for any chance that the CBP agents at LAX might pretend they had never been notified of it. She wanted legal confirmation, in the form of a proof of service, that they knew about the order. Right now that confirmation didn’t exist.
An official with the Department of Justice assured me that the CBP had, in fact, received the order over the weekend. In an official statement, the department said this of the efforts of Nouri and other outside attorneys to serve process on the agencies: “Such action was completely unnecessary since the appropriate individuals at DOJ and the involved agencies had already been served.”
If that were in fact the case, however, Nouri had no knowledge of this, and the CBP was refusing to inform anyone one way or the other.
The U. S. marshal who Nouri contacted told her he needed his supervisor’s go-ahead, but his supervisor wasn’t picking up the phone. Nouri waited for him to call back. But Saturday came and went with no word from the marshals office.
On Sunday, Nouri reached someone who, she later learned, was the service’s PR person. He was friendly, but not very helpful. By now, LAX had been inundated by protesters stretching from Terminal 5 to Terminal 2, occupying a huge section of the ticketing area of Tom Bradley International Terminal, spilling out into the street, onto an overpass and on the top deck of a parking structure. The jubilation the night before at the issuance of the stay was short-lived; despite the court order, it appeared, travelers were still being detained.
At 8 a.m. Monday, at Nouri’s direction, four volunteer attorneys visited the U.S. Marshals Service office, located in the old Federal Courthouse in downtown Los Angeles. They were told that to deliver the court order, they needed to get the U.S. attorney involved — a head-scratcher for the four lawyers. “Legally, lawyers don’t need to go to the U.S. attorney,” one of the attorneys, Darius Amiri, told me. “It’s the U.S. marshals’ job by statute to do this.”
What followed was an even more absurd version of the human pinball game Judy Chu and Nanette Barragán had been subjected to. The four lawyers kept meeting with different deputies at the marshals office; every time the deputies came out, said Madiha Zuberi, another lawyer who was present, they seemed to be a bigger group. By now, three different orders had come down from three different federal courts, in New York, Massachusetts and California. (Two more, in Virginia and Washington state, would soon follow). The marshals told the lawyers that they weren’t comfortable serving orders from outside jurisdictions, even though they had national reach, and they wouldn’t serve the California one, either, because it didn’t explicitly stipulate that U.S. marshals were to do so, despite the fact that serving process is a routine part of their job description. The marshals suggested the four lawyers go back to the California judge and get the order amended.
“They weren’t combative or aggressive or condescending. They seemed more worried about the consequences,” said Amiri. “ They were deflecting,” explained Zuberi.
The lawyers finally managed to enlist the help of a Department of Justice lawyer who could accept the service of process on behalf of the CBP. With his help, they wouldn’t need U.S. marshals. The lawyers went to the Los Angeles Law Library to make copies of the order—“old school,” Zuberi laughed, “on the kind of copy machine you haven’t used since the third grade.”
The lawyers marched over to 300 Los Angeles St., a block from City Hall, to meet with the Department of Justice attorney and resolve the problem at last. Finally, they had all their ducks in a row. The DOJ lawyer brought the other attorneys to a legal clerk to certify the documents and serve him with them. But the clerk told them she couldn’t certify court orders from outside jurisdictions. So the lawyers submitted just the California order, with the others attached as exhibits.
“It was like a movie,” was how both Zuberi and Amiri described what happened next. Just as the clerk was about to put the stamp down, the door of an office behind them swung open, and a woman walked out. “We need to talk to you now,” she told the DOJ attorney. He said he’d be right over. “Now,” the unidentified woman repeated.
The DOJ attorney followed her into her office. A few minutes later, he returned and apologized to the other attorneys, saying that he couldn’t accept the service of process after all. They’d have to go back to the U.S. Marshals office once again, or get the American Civil Liberties Union or immigration attorney Stacy Tolchin, who were the official counsels for the lawsuit that prompted the court order, to contact the Office of Immigration Litigation in Washington, DC.
“The sense we got was that the executive was giving orders not to accept service,” explained Amiri. “There was a feeling that the executive branch [employees] were being told not to, or were worried about complying with, the directives of the judicial branch. That was very worrying to me as a lawyer, especially given the lack of transparency we’re seeing out of the administration.”
Complete Breakdown of the System
Within an hour of the DOJ attorney’s change of heart, Trump had both fired acting Attorney General Susan Yates and replaced the acting head of Immigration and Customs Enforcement, further scrambling the circular chain of command over the bureaucratic labyrinth the attorneys had become hopelessly lost in.
Now that the orders are in the public domain, when pressed by immigration attorneys, the CBP has taken the position that they’re complying with the court orders. “Those are just words,” said Zuberi. As of Monday night, she said, there were reports of at least 100 people being detained, in possible violation of the orders, including one person who had been held for at least 24 hours, with his laptop and phone confiscated and his social media feeds searched.
Zuberi stopped short of calling it a constitutional crisis, preferring the word “challenge.” But she acknowledged that she’s begun to read the U.S. Constitution again. “The last time I read constitutional law was in law school,” she said.
Nouri is less sanguine in drawing out the implications of their experience. “We’re supposed to have three branches of government,” she said. “You can’t have the executive telling civil servants what to do and to violate a [judge’s] order. We’ve had a complete breakdown of the system.”
Aside from the California court order, which applies to a single individual, Nouri insists that the orders are not being followed by CBP. She cites reports of individuals being held for four hours in a room they can’t leave, with their documents and their cellphone SIM cards taken from them while they’re being questioned. In her view, that’s the very definition of “detention,” which would be a violation of a court order out of California that came down on Tuesday, and possibly of the ones that preceded it.
The firing of Susan Yates, she adds, was a warning to other government employees who step out of line. “That was a signal,” she said. “That’s what’s going to happen to you.”
At LAX on Tuesday, the situation felt calmer. The protesters had returned, but the crowd was a fraction of the size it had been over the weekend. The lawyers I spoke to at Tom Bradley said that most people coming through customs from the seven flagged countries were being held and questioned longer than usual, but were eventually let through. They hastened to add, however, that since CBP refuses to disclose how many people they’re detaining or questioning, the only cases they’re aware of are the ones that have come to their attention through family members. It’s entirely possible that CBP is detaining or deporting people who are traveling by themselves, whose existences the lawyers are unaware of. “We’re not having productive conversations with the CBP,” one of the attorneys told me.
Assemblymember Santiago sees a reflection of the president in the CBP’s distaste for transparency and its hostility toward those who question it. “The president is testing how far the levers of power go,” he said. “The government is taking on the unstable personality of Donald Trump.”