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News@Law, 02/08/2017

News@Law is a selection of the day's news clips regarding Harvard Law School.
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Today's News

The New York Times
ISIS Detainees May Be Held at Guantánamo, Document Shows
The Trump White House is nearing completion of an order that would direct the Pentagon to bring future Islamic State detainees to the Guantánamo Bay prison, despite warnings from national security officials and legal scholars that doing so risks undermining the effort to combat the group, according to administration officials and a draft executive order obtained by The New York Times...“It raises huge legal risks,” said Jack Goldsmith, a Harvard Law School professor and former senior Justice Department official in the Bush administration. “If a judge says the Sept. 11 authorization does not cover such a detention, it would not only make that detention unlawful, it would weaken the legal basis for the entire war against the Islamic State.”
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The New Yorker
How President Trump Could Seize More Power After a Terrorist Attack
...for more than two weeks, President Donald Trump and his top White House aides have been obsessed with highlighting a threat that does not exist: jihadist refugees and immigrants from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. It’s true that both worldwide terrorist attacks and terrorism-related cases against plotters in the United States have spiked since 2013, an increase largely attributed to the fallout from the Syrian civil war and the rise of the Islamic State...Jack Goldsmith, a former senior Justice Department official in the George W. Bush Administration, who helped design the post-9/11 anti-terror legal architecture, recently suggested that Trump might actually want his travel ban to be overturned. That way, in the wake of an attack, he can use the judiciary as a bogeyman and justify any new efforts to push through more extreme measures. I asked Goldsmith and others what the menu of options might be for a President Trump empowered by the justifiable fears Americans would have in the aftermath of a serious attack. “If it is a large and grim attack, he might ask for more surveillance powers inside the U.S. (including fewer restrictions on data mingling and storage and queries), more immigration control power at the border, an exception to Posse Comitatus (which prohibits the military from law enforcement in the homeland), and perhaps more immigration-related detention powers,” Goldsmith wrote in an e-mail. “In the extreme scenario Trump could ask Congress to suspend the writ of habeas corpus, which would cut off the kind of access to courts you are seeing right now for everyone (or for every class of persons for which the writ is suspended).”
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Law Newz
Lawyers Accuse Trump Admin of Failing to Comply With Judge’s Order in Travel Ban Lawsuit
A group of lawyers on Tuesday filed a motion in federal court in New York asking a judge to force the Trump administration to disclose a list of any individuals detained by his ‘extreme vetting’ Executive Order. The motion also seeks the return of any individuals who were removed from the United States as a result of the order. The lawyers, in court paperwork filed Tuesday afternoon, accuse the Trump administration of failing to comply with prior judicial orders issued in the case..."If the allegations in this legal memorandum — allegations that are shocking but seem entirely plausible on their face and appear to be supported by the affidavits and other materials referenced in the memo — are indeed true, then the President and those acting under his direction have a great deal to answer for and are skirting ever closer to outright defiance of lawful judicial orders or perhaps even crossing the line. Needless to say, such defiance is powerful grist for the awesome mill of impeachment,” Harvard Law Professor Laurence Tribe told LawNewz.com.
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The Boston Globe
Blue-state attorneys general lead Trump resistance
With Washington, D.C., in turmoil during the opening weeks of the Trump administration, state attorneys general have emerged as the vanguard of resistance to the new presidency...“The AGs consider themselves a thin blue line against federal overreach, there’s no question about it,” said James Tierney, the former attorney general of Maine who runs a blog about state attorneys general...Tierney advises many of the Democrats coordinating their efforts against Trump. The group is braced to file more suits in coming months. “It’s actually an essential part of federalism in that attorneys general will hold the president’s feet to the fire,” Tierney said.
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Minnesota Public Radio
What do sanctuary cities really offer? At what cost? (audio)
By signing an executive order, President Trump has created confusion for many so-called "sanctuary cities" regarding their roles in enforcing federal immigration laws. Many cities, including a few here in Minnesota, are left to wonder what it might mean in terms of federal funding and community safety. MPR News host Marianne Combs spoke with...Phil Torrey, supervising attorney for the Harvard Immigration Project, about the confusion and the potential outcome for families, neighborhoods, communities and their safety.
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WBUR
Dean Martha Minow On Her Tenure At Harvard Law School (audio)
Martha Minow recently announced that she will step down as the dean of Harvard Law School at the end of this academic year. She began her tenure in 2008, in the midst of the financial crisis. In the intervening years, the law school faced serious questions of diversity and racism. Minow ends her tenure this year, as parts of the legal profession is feeling a new ripple of energy around the Presidency of Donald Trump.
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Bloomberg
Israel Passes a Law It Knows Is Unconstitutional
An op-ed by Noah Feldman. A law passed Monday by Israel’s Knesset potentially puts the country in violation of international law by retroactively legalizing 4,000 homes built by Jewish settlers on private Palestinian land. But remarkably, the possibility of war-crimes charges isn’t the most worrisome thing about the law. What’s more upsetting is that the Knesset passed a law that the country’s own attorney general had already determined was unconstitutional and in violation of 40 years of Israeli judicial rulings. That the law passed -- with the support of Prime Minister Benjamin Netanyahu’s Likud government -- raises serious concerns about Israel’s direction as a rule of law society.
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The Harvard Crimson
‘Not Welcome Here’
The call was long distance. Niku Jafarnia [`19], a student at Harvard Law School, dialed her mother and father in the Bay Area, where the couple, who emigrated from Iran in the 1970s, has lived for over twenty years. Jafarnia asked them about President Donald Trump’s immigration suspension: A few days earlier, the president had signed an executive order barring immigrants from seven predominantly Muslim countries, including Iran, for 90 days. She hoped for reassurance. In the past, her parents had always told her not to worry about “these types” of things. They had been through much worse, they said. This call was different. “For the first time in her life, my mother said, ‘You know what, maybe it’s a good idea for us not to be living in this country,’” Jafarnia says. Since its passage almost two weeks ago on Jan. 27, Trump’s order has sparked protests, lawsuits, administrative turmoil, and widespread uncertainty among United States residents with ties to the seven countries—Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen—on the president’s list.
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Harvard Political Review
The Court and the People
“No matter whether the country follows the flag or not, the Supreme Court follows the election returns,” wrote the Chicago humorist and author Finley Dunne in 1901. More than a century later, many legal scholars and historians take Dunne’s famous quip—which identified a relationship between Supreme Court decisions and popular opinion—as gospel...However, it may be important to distinguish between the ability and the willingness of justices to make sweeping decisions that challenge the status quo. Michael Klarman, a legal historian and professor at Harvard Law School, told the HPR that in a majority of cases, “[justices] have a lack of inclination to do things that are dramatically contrary to public opinion.” Klarman attributes this reluctance to a variety of reasons.
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Los Angeles Times
The law backs a president’s power on immigration. Here’s where the travel ban differs
Even before Donald Trump entered the White House, many were predicting federal courts would serve as an important check on his use of presidential power, particularly given his aggressive style and a GOP-led Congress that has so far been loath to confront him. But few expected the first constitutional clash would occur in Trump’s third week on the job...Jack Goldsmith, a national security lawyer in the Bush administration and professor at Harvard Law School, predicted Trump’s tweets “will certainly backfire” against him. “The tweets will make it very, very hard for courts in the short term to read immigration and constitutional law, as they normally would, with significant deference to the president’s broad delegated powers from Congress and to the president’s broad discretion in foreign relations,” Goldsmith wrote Monday on the Lawfare blog.
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The Chronicle of Higher Education
Removal of Animal-Welfare Records Is Serious Blow to Accountability
A letter by fellow Delcianna Winders. The Department of Agriculture’s stunning assault on transparency by removing thousands of animal-welfare-related records from its website (“Agriculture Dept. Removes Animal-Welfare Data From Website,” The Chronicle, February 6) leaves all of us in the dark about how animals across the country are being treated. As Harvard Law professor and former head of the federal government’s Office of Information and Regulatory Affairs Cass Sunstein has noted, “the Animal Welfare Act is designed partly to ensure publicity about the treatment of animals.” That purpose has now been thwarted, leaving consumers and state and local governments unable to find out if, for example, those seeking to sell dogs and cats locally have records of abuse, or circuses wanting to pitch their tents in town have histories of dangerous animal attacks or escapes.
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