Letter to the Honorable John Kelly, Secretary of Department of Homeland Security - Grant Detainees Access to Counsel

Letter

Secretary Kelly,

I write to demand that the Department of Homeland Security (DHS) immediately comply with federal court orders that have enjoined enforcement of the President's January 27, 2017 Executive Order ("Protecting the Nation From Foreign Terrorist Entry Into the United States"), that Customs and Border Protection (CPB) officials be directed to grant individuals detained at ports-of-entry throughout the United States timely and unfettered access to legal counsel, and that DHS provide clear direction to CBP officials about the scope of the Executive Order.

There is no question that the President's Executive Order is a "Muslim Ban." We know this from its text and its intent. By barring entry to the United States by all individuals -- including, apparently, Legal Permanent Residents -- from seven Muslim-majority countries, the Executive Order constitutes a de facto Muslim Ban. This interpretation is further supported by statements made by others, including former Mayor Rudy Giuliani, a close advisor to the President, who stated last night on Fox News that the President sought his assistance in drafting a "Muslim Ban" in a manner constituting "the right way to do it, legally."

As you know, at least two federal courts have issued temporary stays barring continued enforcement of the Executive Order. Despite these court orders, I have received reports from attorneys across the country and California that CBP officials continue to deny or substantially delay entry at U.S. ports-of-entry to valid visa holders, Legal Permanent Residents, and others. This violates the rule of law, and is wreaking havoc and instilling fear throughout the country. It is imperative that you immediately ensure that all CBP officials are notified and directed to fully comply with the letter and spirit of these court orders.

In addition, over the last 16 hours, my staff and I have personally talked to lawyers and other officials who are on the ground at airports throughout the United States, including major international airports in California. Without exception, these lawyers have said CBP officials are reflexively denying access to counsel to individuals who your department has detained pursuant to the Muslim Ban. I hope you will agree that one of the fundamental rights that distinguish our country from dictatorships and despotic regimes in the world is that we believe in fundamental fairness and due process -- a key aspect of which is permitting legal representation. In order to fulfill this precept, I urge you to immediately direct CBP to provide every individual it has detained with access to counsel before any further action is taken.

Finally, we have heard troubling reports of inconsistent and improper enforcement of the President's Muslim Ban. For example, Administration officials have stated the ban does not apply to Legal Permanent Residents. However, in California, CBP officials at the Los Angeles International Airport are reportedly identifying, segregating, and detaining Legal Permanent Residents and denying them lawful re-entry into the United States. I am informed and believe CBP officials are engaged in similar enforcement conduct at other airports across the country. You repeatedly assured me -- in sworn testimony and in writing -- that you would follow the laws of the United States. It appears this promise is in jeopardy of being broken a mere nine days since your confirmation as Secretary of the Department of Homeland Security. I demand, at a minimum, that you properly manage CBP and ensure -- should the federal court orders barring enforcement of the Muslim Ban be lifted -- consistent and appropriate enforcement of the Executive Order, including clear guidance to your personnel and the American public about where and to whom it does and does not apply.

The Muslim Ban has created mass outrage throughout our country and the world as well as genuine fear for and among American citizens; it has also jeopardized the national security interests of the United States. I implore you to convey the consequences of this Executive Order to the President and urge him to rescind it immediately. However, if you cannot or will not do that, at a minimum you can and must ensure that your Department complies with the rule of law and our country's commitment to due process.

Sincerely,

Kamala D. Harris

United States Senator

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