Ten former senior U.S. diplomats and security officials planned to file an affidavit in a federal appeals court arguing that President Donald Trump's executive order curtailing immigration would actually make America less safe. In a brief scheduled to be filed at 3 a.m. ET on Monday the officials slammed Trump's order as "ill-conceived, poorly implemented and ill-explained."
The brief obtained by NBC News was written jointly by two former heads of the CIA, two former Secretaries of State, a former Secretary of Defense, a former Secretary of Homeland Security, and senior officials of the National Security Council. "This order cannot be justified on national security or foreign policy grounds. It does not perform its declared task of 'protecting the nation from foreign terrorist entry into the United States.'" the co-authors — Madeleine Albright, John Kerry, Janet Napolitano, Susan Rice, Leon Panetta, John McLaughlin, Avril Haines, Michael Hayden, Lisa Monaco, Michael Morell — wrote in the filing. The list was largely made up of prominent Democrats.
The former officials urged the U.S. 9th Circuit Court of Appeals not to reinstate Trump's entry ban while they decide whether the president has the legal or Constitutional authority to issue the sweeping order. The affidavit was scheduled to be filed early Monday with the court of appeals in support of Washington state's challenge to Trump's executive order, which temporarily banned entry to the U.S. by people from seven Muslim-majority nations: Iraq, Syria, Sudan, Iran, Somalia, Libya, and Yemen for 90 days. The order banned refugees outside of Syria for 120 days, and Syrian refugees indefinitely.
The filing is notable not because of the novelty of the former intelligence officials' arguments, but because they give the case against Trump's entry ban a national security credential that many of its other opponents cannot. The Justice Department has argued that judges could not make an appropriate determination of the effectiveness of Trump's entry ban in protecting national security without the advantage of national security clearance and briefings. Four of the filing's authors — Haines, Kerry, Monaco and Rice — told the court they were "current on active intelligence regarding all credible terrorist threat streams directed against the U.S." as recently as one week before Trump's order.
The former intelligence officials argue that Trump's entry ban misses its intended target — potential terrorists. "Since September 11, 2001, not a single terrorist attack in the United States has been perpetrated by aliens from the countries named in the order," they write in the brief. "Very few attacks on U.S. soil since September 11, 2001 have been traced to foreign nationals at all." The former officials argue the entry ban, if allowed to continue, would compromise U.S. national security by immediately placing American troops fighting alongside soldiers from the affected countries in harm's way.
Further, they say, the order would make key countries critical to obtaining intelligence needed to fight ISIS and other terror groups reluctant to share that information. Because of the order's "disparate" effect on Muslim travelers seeking to enter the U.S., the authors write that the entry ban effectively acts as propaganda for extremist groups like ISIS, by sending the message to Muslims "that the U.S. government is at war with them based on their religion."
Trump has argued that the entry ban is needed while a review of the government's system for vetting refugees and others seeking to enter the U.S. is reviewed. The authors defend the national security vetting apparatus developed since Sept. 11, 2001 as a "rigorous system of security vetting, leveraging the full capabilities of the law enforcement and intelligence communities."