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Protesters rally at New Yorks John F. Kennedy International Airport against the Muslim immigration ban on Saturday.

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The United States government is certain that Haider Sameer Abdulkhaleq Alshawi does not pose a security threat to the country. Thats why it granted Alshawi, an Iraqi, a visa to come to America and join his wife and children, who had already fled and resettled in Texas. (In Iraq, Alshawis family members were victims of an attempted kidnapping and a car bombing because Alshawis wife worked for a U.S. contractor.) On Friday, Alshawi boarded a flight to New Yorks JFK International Airport. While he was in the air, Donald Trump signed an executive order prohibiting Iraqi refugees from entering the country. When Alshawis plane landed, reports the New York Times, agents from Customs and Border Protection boarded it and took him into custody. They prohibited Alshawi from contacting his attorneys, who were waiting for him at the airport. The attorneys asked a CBP agent who they should speak to in order to help their client.

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

Mr. President, a CBP agent responded. Call Mr. Trump.

As of Saturday afternoon, Alshawi is still being detained at JFK. He is one of multiple refugeesthe government wont say how many there arewith valid documents who is nevertheless being held at an airport. (Update, Jan. 29: Alshawi was released Saturday night.)Trumps expansive executive order prevents refugees, migrants, and even green-card holders from seven Muslim-majority countries from entering the U.S. (Reuters reports that green-card holders may be evaluated on a case-by-case basis.) The governments interpretation of the order has led to the immediate and indefinite detention of people who, until Friday, had every right to come into the country.

There are serious constitutional problems with Trumps executive order as a whole, including its preference for one particular religion (Christianity) and its denigration of another (Islam). The courts will debate these questions over the coming months. But for Alshawi and others like him, there is a more immediate concern: a complete and total lack of due process. As a chilling American Civil Liberties Union lawsuit filed Saturday demonstrates, Trumps executive order has led to the flagrantly unconstitutional detention of perfectly legal immigrants whose lone crime is their national origin and religion. It is not just morally wrong. It is illegal.

The Fifth Amendment to the Constitution provides basic procedural guarantees to individuals detained in the U.S., prohibiting the government from depriving individuals of liberty without due process of law. Alshawi arrived in the country lawfully carrying the requisite documentation. Pursuant to the Immigration and Nationality Act, he now has a right to apply for asylum and have his claims processed by federal authorities. But the government did not do that. Instead, it instantly placed him in detention, without a hearing or any kind of judicial oversight, and barred him from speaking with his attorneys.

That is an unconstitutional deprivation of Alshawis liberty without due process of law. The federal government cannot indefinitely detain a lawful visitor without a hearing or any semblance of reasonable suspicion because the president signed an executive order. Nor, under the equal protection component of the amendments Due Process Clause, may the government discriminate against Alshawi because of his national origin or religion. Yet federal officers are currently ignoring these fundamental constitutional principles. And the entire illegal system is the handiwork of one manTrumpacting far beyond the bounds of his executive authority. His is a government of men, not of laws, and it apparently has no compunction about locking up perceived enemies based solely on their identity. The very concept of due process emerged from a desire to limit the kings ability to order unlawful arrests. It appears we are returning to the days when the head of state can detain purported threats without a whiff of evidence that they have broken a law.

One of the ACLUs other clients, Hameed Khalid Darweesh, was freed on Saturday after Democratic representatives lobbied for his release. (Darweesh risked his life in Iraq working as an interpreter for the U.S. Army.) Alshawi is still being held, and the ACLU has requested a habeas corpus for him and those similarly situated. This extraordinary and uncommon relief would require the government to bring those detained before a judge and explain why they should continue to be held. When attorneys must resort to a habeas corpus petition to obtain basic due process rights for clients who have done nothing wrong other than being Iraqi Muslims, the federal government has entered dangerous territory. What is happening today is a constitutional crisis. And it may only be the start of Trumps assault on the rights of minorities in America.

See the original post:
Trump Has Suspended Due Process for Muslims in America. This Is a Constitutional Crisis. - Slate Magazine (blog)