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Leaked report: the Trump administration violated court orders in January’s travel ban

DHS’s inspector general alleges that department officials have been sitting on his report for six weeks.

Protestors Rally At Chicago's O'Hare Airport Against Muslim Immigration Ban
A scene from an airport protest against the travel ban in January.
Photo by Scott Olson/Getty Images

The Department of Homeland Security’s internal watchdog agency is alleging that Trump administration officials violated federal court orders when implementing the first version of President Trump’s travel ban in January. And now, the agency says, administration officials are trying to keep the public from finding out the truth.

On Monday night, DHS Inspector General John Roth sent a letter to members of Congress — subsequently obtained by Politico — alleging that department officials have been sitting on the report for six weeks for review. And he’s “very troubled” by their justification for doing so.

DHS is responding by saying it’s not only worried that information in the report might violate attorney-client privilege, but also that it needs to protect any information about the government’s “deliberative process” in implementing the orders from reaching the public. But in his letter, Roth says that information about how government makes its decisions is included in inspector general reports all the time — and that this is the first time in his three and a half years as inspector general that DHS has tried to tamp down a report for that reason.

DHS spokesperson Tyler Houlton told Politico that “material within the report is covered by privileges afforded by well-recognized law” — pointing to the lawsuits and court orders that swirled around the travel ban (before it was finally shut down by a federal judge after a week) as a perfectly good reason why the department might be worried about attorney-client privilege.

But of course, the court orders are much of the point of the report.

According to Roth’s letter, the inspector general’s office found that the government’s implementation of the travel ban at US airports — while chaotic — generally complied with court orders. Outside the US, though, the government (Roth alleges) was overly aggressive in telling airlines not to let people board US-bound planes.

Those “actions, in our view, violated, two separate court orders,” Roth wrote.

This isn’t the first time that the Trump administration has asserted sweeping executive privilege when it comes to the travel ban — or come under fire from other parts of the federal government for doing so (though it might be the first time that the administration has been publicly criticized from within the executive branch). Since signing the first ”travel ban” executive order in January, and through two subsequent orders in March and September, Trump and his White House have asserted that federal law gives them broad power to stop people from coming to the United States, and that the law doesn’t require them to make their rationale public.

But by taking a “ban first and ask questions later” approach — from the first ban in January, which then-Homeland Security Secretary John Kelly reportedly found out was being signed when he saw it on TV, to the initially unexplained inclusion of Chad on the third version of the ban in September — the administration’s actions haven’t looked much like the deliberative, safeguarded, rational process that is often associated with the “rule of law.”

In its rush to implement the January ban, Roth’s letter points out, the administration didn’t even figure out whether or not it applied to tens of thousands of US permanent residents until several days after the executive order was signed. That’s a sign of an administration that is less concerned with making decisions the right way than with letting its field agents take action. And in a decision vacuum, it’s easy for whatever actions agents take to violate legal or procedural safeguards they may not have known about or understood.

The subsequent travel bans haven’t caused as much chaos as the first one did, and it appears DHS has done a better job of communicating to agents how exactly the bans are supposed to work. But DHS’s own inspector general appears to be concerned that the department is still showing disregard for the rule of law — this time by allegedly improperly quashing a report so that it doesn’t have to defend itself to the public or to Congress.

This is also a particularly crucial time for Congress to know what’s happening at DHS. Shortly after Thanksgiving, the Senate is expected to vote to confirm Kirstjen Nielsen to replace Kelly (who’s now White House chief of staff) as DHS secretary. Nielsen was Kelly’s deputy at DHS — and was in charge of implementing, among other things, the first travel ban.

The events detailed in the inspector general report, and in Roth’s letter, happened under her watch. And now the Senate might be asked to vote on her nomination while information about her record is being withheld. That could be serious indeed.

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