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Source: (consider it) Thread: US Immigration control - the legal battle
BroJames
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I'm a g-nu! [Yipee]
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Barnabas62
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It is a very clever preliminary ruling, leaving the stay in place but also leaving open plenty of room for different findings on the merits of the case. And it leaves plenty of room for the White House to issue a replacement E.O. to achieve the stated objectives.

The preliminary findings on the Establishment Clause are bold. They allow a process of discovery which might even include an interview with the President re intention. His words and Giuliani's words open the door to that.

The real irony over geographic limitations (the scope of the stay) is that the ruling uses Texas v the US which stayed an Obama E.O. re illegal immigrants! That's still in play because the Supreme Court divided 4-4 over the issue.

Alan Dershowitz argued on CNN that if the real and urgent intention was to protect the US, all the White House has to do is to issue another E.O. Trump's SEE YOU IN COURT tweet reveals both his pride and his stupidity. He wants to win his way even though it is easier and quicker for him to win another way.

[ 10. February 2017, 09:09: Message edited by: Barnabas62 ]

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Gee D
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quote:
Originally posted by Barnabas62:
It is a very clever preliminary ruling, leaving the stay in place but also leaving open plenty of room for different findings on the merits of the case. And it leaves plenty of room for the White House to issue a replacement E.O. to achieve the stated objectives.

That is because it is only an interim order, an order staying action until both sides have the opportunity to present their full evidence and the argument based on that evidence. It is a standard sort of decision, although there seems to have been a reversal of the burden of proof which would be applied here.

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Not every Anglican in Sydney is Sydney Anglican

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Enoch
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Sorry Golden Key. This is trivial I know, but this is what "Supremes" conveys to me! [Killing me]

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Brexit wrexit - Sir Graham Watson

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Barnabas62
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@ Gee D

I think the problem for the Government appeal to stay the stay is that they produced no evidence. Rather, they asserted non-reviewability based on a particular view of the law. Which left the Appeal Court free to examine that assertion as a matter of law.

[ 10. February 2017, 10:24: Message edited by: Barnabas62 ]

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Who is it that you seek? How then shall we live? How shall we sing the Lord's song in a strange land?

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simontoad
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Arguing that the difference between Egypt, Jordan and Saudi Arabia and the 7 countries named is about the relationship between the US and the various Governments has the ring of truth to me. I'm pretty sure that all three were places where people went when they were renditioned in the months after 9/11 and during the early days of the Iraq war. That requires a very close relationship between the intelligence communities.

Orefo I think mentioned something that made me think Orefo thought the travel bans were permanent. My understanding is the Syrian bans are permanent, but the others are for a 90 day period, subject to an order by the Court. Yes, that last bit was for Donald.

An academic exercise: 1.Don swore to uphold the constitution of the USA before a crowd of 20 or so people. 2. That constitution sets up the framework for the American system of checks and balances, including the legal system at a federal level. 3. At some point, if Donny keeps criticising the Court isn't he failing to uphold the constitution, surely grounds for impeachment?

In Australia, pollies don't generally talk in public about matters before the courts. Apart from being smart, this protects them from committing the offence called "Contempt of Court", allowing a judge to call the person before them and deal with them by fine, tongue lashing or imprisonment.

Does Donny run the risk of being in contempt of court in the USA? Does your law allow judges to lash offending Presidents with their tongue?

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The opinions expressed above are transitory emotional responses and do not necessarily reflect the considered views of the author.

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orfeo

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No, I don't think the bans are permanent. What I think is that the bans display exactly the same stupid thinking I encountered once in my professional work: that the way to "transition" from System A to System B is to first stop System A, then put System B in place once you've figured out.

It's stupid because in the meantime there is no system in place. If Trump had his way, there would be no vetting rules for people from these countries for several months. A ban means there are no criteria for determining which people can come in. No one can come in.

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The musical diary has been updated in praise of Paul Dempsey.

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Barnabas62
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I think something like that was in the mind of the appeal court. What was already in place for those 7 countries was a more stringent vetting process ( courtesy of the Obama administration). The EO aim was to replace that with an even more stringent vetting process - as yet unspecified - after the pause. But there is no evidence to suggest that anything more is needed.

Trump just wanted something which enabled him to claim he was honouring his promise as a candidate.

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Who is it that you seek? How then shall we live? How shall we sing the Lord's song in a strange land?

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lilBuddha
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quote:
Originally posted by Barnabas62:

Trump just wanted something which enabled him to claim he was honouring his promise as a candidate.

And without damaging the flow of oil and other monetary and political considerations. This is the biggest component of the pile of bullshit that this is.
They've made the world less safe in order to make money. Times like these, I wish there truly was a vengful god. These bastards deserve to roast for a very long time.

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And I find it kinda funny, I find it kinda sad
The dreams in which I'm dying are the best I've ever had

- Roland Orzabal

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Brenda Clough
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quote:
Originally posted by orfeo:
No, I don't think the bans are permanent. What I think is that the bans display exactly the same stupid thinking I encountered once in my professional work: that the way to "transition" from System A to System B is to first stop System A, then put System B in place once you've figured out.

It's stupid because in the meantime there is no system in place. If Trump had his way, there would be no vetting rules for people from these countries for several months. A ban means there are no criteria for determining which people can come in. No one can come in.

It is an idiotic operating policy in more than one arena.
Here is a long and heartrending account of how Repeal Now Replace Someday Later works when you use it on health insurance.

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Science fiction and fantasy writer

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RuthW

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quote:
Originally posted by Og: Thread Killer:
Going to SCOTUS of course.

But not right away, right? I thought it would now go back to the lower court. All that's happened is that the appeals panel has upheld the temporary stay. The lower court hasn't ruled on the EO, just stayed it until it does have a ruling. So I think now it goes back to the lower court, where the discovery process could be entertaining.
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cliffdweller
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Fyi: bans were 120 days, not 90. And yes, Syrian ban is "indefinitely"

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"Here is the world. Beautiful and terrible things will happen. Don't be afraid." -Frederick Buechner

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Siegfried
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quote:
Originally posted by RuthW:
quote:
Originally posted by Og: Thread Killer:
Going to SCOTUS of course.

But not right away, right? I thought it would now go back to the lower court. All that's happened is that the appeals panel has upheld the temporary stay. The lower court hasn't ruled on the EO, just stayed it until it does have a ruling. So I think now it goes back to the lower court, where the discovery process could be entertaining.
DoJ could appeal the 9th Circuit's rejection of a stay on the TRO to SCOTUS, but it'd be a long shot, both because the district judge has briefs and arguments calendared on the merits, and the current 4-4 split of SCOTUS--a tie upholds the 9th Circuit.

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Siegfried
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Barnabas62
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I think the SCOTUS would send any immediate appeal against the TRO back to the lower court for a hearing on the legal merits of the case against the EO. That is because the merits of the case against the EO have not yet been heard.

Judge Robart would judge that case. If it was upheld that the EO was unconstitutional, it would then go back to the 9th Circuit Appeal Court. If the ruling on the merits was confirmed, then it would go to SCOTUS.

Far, far simpler to draft a replacement EO. Oh wait! Something is going on in Virginia - and other places.

I think the EO is screwed for months, if not permanently. The 'I got this' cartoon looks pretty much spot on.

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Who is it that you seek? How then shall we live? How shall we sing the Lord's song in a strange land?

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Alan Cresswell

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quote:
Originally posted by Siegfried:
the current 4-4 split of SCOTUS

The 4-4 split references the Presidents who appointed the judges, four appointed by Republican Presidents and four by Democrat. Right?

That doesn't seem to me to necessarily mean that they will rule along the lines of the party of the President that appointed them - especially when it isn't entirely clear that the question is one of Democrat vs Republican. If the judges rule according to party lines then that means that the Supreme Court is not independent of the legislature or executive.

It would seem foolish to simply assume that the four judges appointed by Republican presidents would rule in favour of Trump, and those appointed by Democrats against. If the stay on the EO is lawful then the judges should rule in favour of it, if it isn't then against. If (as appears to be the case) there are legal arguments both in favour of the stay on enforcing the EO and in putting the EO back into effect until such a time as the courts have ruled on the legality of it then the judges should rule according to their understanding of the law and the strengths of arguments presented. I see no reason why they should divide along the party political lines of the Presidents who appointed them.

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Citizen of the world.

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Barnabas62
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Alan

The precedents are in favour of any immediate appal to SCOTUS re the TRO being referred back to the lower court. This has nothing to do with politics, everything to do with SCOTUS being the last court of appeal. In exercising this function, they much prefer to have the arguments on the merits of the case (does the EO violate constitutional rights?) the subject of both hearings and appeal in the lower courts. It gives them more to bite on.

On your general point, I think you are right. I wouldn't second-guess the way the judges would vote on the merits of this case. The preliminary findings by the 9th Circuit re standing, due process and establishment (i.e. religious discrimination) may not stand up to more thorough scrutiny. Lawyers from different parts of the political spectrum are saying that.

But if Trump continues his war of words against the judiciary, that is bound to be counter-productive. They will find a way of delivering a lesson.

Gorsuch's comments probably represent a very common belief. The SCOTUS is not a political pawn, particularly over issues of separation of powers.

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Who is it that you seek? How then shall we live? How shall we sing the Lord's song in a strange land?

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sabine
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The administration may be rewriting the travel ban so it can pass legal muster.

sabine

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"Hunger looks like the man that hunger is killing." Eduardo Galeano

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Alan Cresswell

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quote:
Originally posted by Barnabas62:
In exercising this function, they much prefer to have the arguments on the merits of the case (does the EO violate constitutional rights?) the subject of both hearings and appeal in the lower courts. It gives them more to bite on.

Certainly things should progress through the lower courts first.

But, have I missed something? I thought the appeal that the DoJ just lost wasn't about whether the EO violates constitutional rights, but rather whether or not the EO should be in effect while the courts consider that question. So, the question of the constitutional legality of the EO is still with the lower courts and unresolved. The appeal court has agreed with the original court ruling that the EO should not be in effect until it has been ruled constitutional (if that is the way the ruling will go). If the current Administration wishes to have the original EO in effect while the lower courts deliberate then the next move is the Supreme Court.

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Citizen of the world.

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Barnabas62
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Yes, that's right in theory. But all that is required for the TRO to remain in effect is that there is a good chance (not a certainty) of winning on the merits of the case. The standard of proof is lower than for a consideration of the merits.

I suppose SCOTUS could rule "no chance" but that would be brave in advance of evidentiary hearings. That's why they normally bounce back such appeals. I suppose they might rule that the Robart and the 9th Circuit have had a complete brainfart on standing, due process or absolute executive authority in national security cases, but based on what I've read about precedents that doesn't strike me as very likely.

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Who is it that you seek? How then shall we live? How shall we sing the Lord's song in a strange land?

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Golden Key
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Enoch--

quote:
Originally posted by Enoch:
Sorry Golden Key. This is trivial I know, but this is what "Supremes" conveys to me! [Killing me]

Yes. That's one of the reasons people use it. [Smile] Plus it's shorter than saying "Justices of the US Supreme Court".

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--"Oh bat bladders, do you have to bring common sense into this?"--Dragon, "Jane & the Dragon"
--"I'm not giving up--and neither should you." --SNL

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Carex
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quote:
Originally posted by Alan Cresswell:
quote:
Originally posted by Siegfried:
the current 4-4 split of SCOTUS

The 4-4 split references the Presidents who appointed the judges, four appointed by Republican Presidents and four by Democrat. Right?

Actually it refers more to how then tend to vote, regardless of who appointed them. 4 tend to argue a more conservative interpretation of the Constitution, and 4 a more liberal one.

While this tends to correlate with the party of the President who appointed them, there have certainly been some surprises in that regard over the years.

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sabine
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quote:
Originally posted by sabine:
The administration may be rewriting the travel ban so it can pass legal muster.

sabine

Watching the news now, and this seems even more likely.

sabine

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"Hunger looks like the man that hunger is killing." Eduardo Galeano

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Barnabas62
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Indeed. Looks as though someone has found a way of getting POTUS to face the short term realities.

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Who is it that you seek? How then shall we live? How shall we sing the Lord's song in a strange land?

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RuthW

liberal "peace first" hankie squeezer
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quote:
Originally posted by Alan Cresswell:
It would seem foolish to simply assume that the four judges appointed by Republican presidents would rule in favour of Trump, and those appointed by Democrats against.

Indeed, and they don't reliably do that. Justice Roberts wrote the decision that upheld the constitutionality of Obamacare, much to many Republicans' chagrin. He is said to have his eye on how he will be seen when people are writing the history of the Roberts court, and to my way of thinking it can only be a good thing if the Chief Justice cares about the legacy he leaves.
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anteater

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As with Brexit, so with Trump, I wish that rage could be tempered with sober analysis, and the queue of people desperate to add there insults to the growing pile would diminish.

Now I have no doubts that the EO was badly written and I have no doubt that the courts are right in pushing back, but what happens is that the news gives such a one sided picture that when people realise that Trump has just made draconian an order of the Obama administration to place restriction on people from the countries covered by the EO, they go to the other extreme and rant about Obama being just the same and the liberal elite media loving Obama when he restricts immigration from the seven countries but excoriates Trump.

So, SFAIK the situation is as follows:

1. The need to have closer control over people entering the US from a designated list of 7 countries was instigated by Obama and Trump has just used his list of countries. (so presumably Obama excluded Saudi because of Trump's business interests there???? As is often suggested).
2. If Trump's ban is anti-Muslim so was Obama's if you stick to the wording.
3. Trump's is much more extensive. Obama limited to banning visa-free access, Trump is trying to ban all access.
4. Neither was permanent.

5. And perhaps most damaging, Obama's action will be seen in the context of someone who was in no sense of the word, anti-muslim. Trump has consistently emphasized an islamophobic stance, and it would surprise me if he disowned the adjective. Which make 2 distinctly shaky, although as far as the courts are concerned it was true.

I still think that makes is a foolish EO, and I would hope is gets over-turned, and others may think the context irrelevant.

I don't.

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lilBuddha
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From the Guardian regarding the Obama order:
quote:
Unlike Trump’s order, the Obama policy applied only to Iraqi refugees and never specifically prohibited entry,


[ 11. February 2017, 16:43: Message edited by: lilBuddha ]

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The dreams in which I'm dying are the best I've ever had

- Roland Orzabal

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cliffdweller
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Obamas order simply slowed down visas to allow for some specific new vetting. Trumps is a complete ban, of indefinite length for Syrians, with no new process specified to justify it. Trumps ban gives priority to Christians which when you're talking about Muslim majority countries makes it a de facto Muslim ban. Obamas did not

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"Here is the world. Beautiful and terrible things will happen. Don't be afraid." -Frederick Buechner

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lilBuddha
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Trump's is a grandstanding lie. It avoids countries in which his companies do business and creates the facade that he is doing something. And it increasing danger rather than reduce it.

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And I find it kinda funny, I find it kinda sad
The dreams in which I'm dying are the best I've ever had

- Roland Orzabal

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Barnabas62
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Yes. I heard an argument on CNN that the current visa restrictions applying to these 7 countries are as tough as possible, short of an outright ban. There is a good deal of grandstanding involved in these moves. Including the bluster against the judiciary.

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Who is it that you seek? How then shall we live? How shall we sing the Lord's song in a strange land?

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Golden Key
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Jane--

quote:
Originally posted by Jane R:
Golden Key:
quote:
Ah, but judges who agree with him are Right and True. The other bozos are Political and Wrong. (A view shared by many people about judges who agree with them.)
That reminds me of a throwaway line from a Michael Flanders monologue "Our council is strictly non-political. They're all Conservative."
LOL. That reminds me of a quote attributed to Mark Twain: "I'm not a member of any organized political party. I'm a Democrat."

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Blessed Gator, pray for us!
--"Oh bat bladders, do you have to bring common sense into this?"--Dragon, "Jane & the Dragon"
--"I'm not giving up--and neither should you." --SNL

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Barnabas62
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The replace/rewrite option is beginning to look less likely following Stephen Miller's highly combative round of interviews this weekend.

I'm a long way away, but it also looks likely to me that the Miller-Bannon axis represents the "hawk" advisory voice in the White House, likely to resist more "dovey", conciliatory voices from other advisors.

We'll see this week, I guess.

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Who is it that you seek? How then shall we live? How shall we sing the Lord's song in a strange land?

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Brenda Clough
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What's frightening is the sense that nobody is at the wheel -- anything could indeed happen. Remember the days when you could open the newspaper and not blanch in terror? It was only last fall...

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Barnabas62
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Robart has accepted 'SEE YOU IN COURT', ordered that the hearing on the merits of the EO take place before him. It looks like he may have wrong-footed the White House again.

[ 14. February 2017, 08:10: Message edited by: Barnabas62 ]

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Who is it that you seek? How then shall we live? How shall we sing the Lord's song in a strange land?

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Barnabas62
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With a new Executive Order due (indeed overdue according to White House promises) this story gives some further insight into the tension between facts and alternative facts.

It includes the following fascinating quote.

quote:
“The president asked for an intelligence assessment. This is not the intelligence assessment the president asked for,” a senior administration official said
Oh dear! Let's have some more alternative facts supporting the Trump POV. Other facts must be "politically motivated and poorly researched".

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Who is it that you seek? How then shall we live? How shall we sing the Lord's song in a strange land?

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simontoad
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# 18096

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reminds me of the Bush Administration post 9/11. The Trump Administration's reason for running around like headless chooks are self-administered.

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The opinions expressed above are transitory emotional responses and do not necessarily reflect the considered views of the author.

Posts: 432 | From: Romsey, Vic, AU | Registered: May 2014  |  IP: Logged
Golden Key
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# 1468

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simontoad--

Well, we did actually have 9/11, so there was reason to do something. But Dubya et al did the wrong things, in the wrong way, and faked the Saddam Hussein connection, so that Dubya could work on his father issues.

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Blessed Gator, pray for us!
--"Oh bat bladders, do you have to bring common sense into this?"--Dragon, "Jane & the Dragon"
--"I'm not giving up--and neither should you." --SNL

Posts: 16758 | From: Chilling out in an undisclosed, sincere pumpkin patch. | Registered: Oct 2001  |  IP: Logged
simontoad
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# 18096

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yeah, true. But that wasn't until they had calmed down a bit and asked themselves how they could make money out of the situation. No Iraq invasion and we might have had a completely different story.

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The opinions expressed above are transitory emotional responses and do not necessarily reflect the considered views of the author.

Posts: 432 | From: Romsey, Vic, AU | Registered: May 2014  |  IP: Logged
Barnabas62
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# 9110

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Back on the main track, I read that at least four states are lined up to challenge the second Executive Order. I'll be watching further developments with interest. Trump's campaign words may still come back to haunt him, despite the watered down language of EO2.

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Who is it that you seek? How then shall we live? How shall we sing the Lord's song in a strange land?

Posts: 20345 | From: Norfolk UK | Registered: Feb 2005  |  IP: Logged
Golden Key
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# 1468

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simontoad--

quote:
Originally posted by simontoad:
yeah, true. But that wasn't until they had calmed down a bit and asked themselves how they could make money out of the situation. No Iraq invasion and we might have had a completely different story.

My understanding is somewhat different. Dubya was already looking for a way to get Saddam, for trying to kill Dubya's dad. And, at some time during all this, Saddam challenged Dubya to a personal fight. Dubya didn't take him up on it, but I thought he should have. It would've been much more ethical and honorable than starting a war over a personal grievance.

Haven't looked up details for a long time. But IIRC it wasn't long before Dubya went to his staff and told them to find some way to connect 9/11 to Saddam. He, and Rumsfeld, Cheney, and probably Ashcroft truly believed that Iraqis would view the Americans as liberators, and literally strew flowers on their path. I think there may have been some expectation that a liberated Iraq would reward us with oil.

With all those pieces, I think they would've gone in, even without the possibility of oil. That mess wasn't as simple as simple greed.

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Blessed Gator, pray for us!
--"Oh bat bladders, do you have to bring common sense into this?"--Dragon, "Jane & the Dragon"
--"I'm not giving up--and neither should you." --SNL

Posts: 16758 | From: Chilling out in an undisclosed, sincere pumpkin patch. | Registered: Oct 2001  |  IP: Logged
Barnabas62
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# 9110

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quote:
Originally posted by Barnabas62:
Back on the main track, I read that at least four states are lined up to challenge the second Executive Order. I'll be watching further developments with interest. Trump's campaign words may still come back to haunt him, despite the watered down language of EO2.

Trump's campaign words and those of his team since inauguration have indeed come back to haunt him.

It will now be very interesting to see if the 9th Circuit follows suit. Bob Ferguson has already argued that these words provide real evidence of the discriminatory intentions of Trump and his administration. This may yet end up in the Supreme Court.

The legal battle re immigration may not be the only legal battle Trump has on his hands either, judging by what came out yesterday about the Congressional investigation into into the Russian connection and wiretaps. The FBI have evidence. Will Comey be compelled (by subpoena if necessary) to produce it?

[ 16. March 2017, 06:20: Message edited by: Barnabas62 ]

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Who is it that you seek? How then shall we live? How shall we sing the Lord's song in a strange land?

Posts: 20345 | From: Norfolk UK | Registered: Feb 2005  |  IP: Logged
Boogie

Boogie on down!
# 13538

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Yep, looks like he's going to be mired in legal goo for years to come. Good news for the USA?

Amnesty International put it well - commending Judge Watson for focusing his ruling on Trump’s past comments on blocking Muslims from entering the country. “The public has not been fooled by this executive order and neither have the courts,” said Naureen Shah, the national security and human rights director of Amnesty’s US branch.

“You cannot describe bigotry in some other way and expect people to believe you are no longer discriminating when you have been so blatant about it all along.”

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Garden. Room. Walk

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