Don’t Wait for Nuremberg: Congress Must Investigate the American Eichmanns

Troubling reports suggest border agents are going above and beyond to enforce Trump’s will.

Chris Edelson March 16, 2017

U.S. Customs and Border Patrol officers detain a man at the San Ysidro Port of Entry on February 10 in California. (Justin Sullivan/Getty)

For Uni­ver­si­ty of Mis­souri-Kansas City Law pro­fes­sor Dou­glas Lin­der, one of the strik­ing things about the Nazi war crim­i­nals tried at Nurem­berg was the ordi­nar­i­ness of the defen­dants: men who may be good fathers, kind to ani­mals, even unas­sum­ing — yet com­mit­ted unspeak­able crimes.” The Nurem­berg tri­als came far too late to stop the Nazis.

One way to stop Trump: Empower individuals to refuse to carry out unlawful or inhumane orders.

Robert H. Jack­son, chief pros­e­cu­tor at Nurem­berg, hoped they would stand as a warn­ing for future gen­er­a­tions to pre­vent the rep­e­ti­tion of these bar­bar­ic events.” Don­ald Trump is not Hitler or Mus­soli­ni — yet. But schol­ars of author­i­tar­i­an­ism warn we are walk­ing a dan­ger­ous path. Colum­bia Uni­ver­si­ty his­to­ri­an Robert Pax­ton, an expert on Vichy France, observes, There’s not much doubt of the desire of Trump to gov­ern as dic­ta­tor.” Would-be dic­ta­tors depend on oth­ers to car­ry out their orders — ordi­nary” peo­ple like the defen­dants at Nuremberg.

This sug­gests one way to stop Trump: Empow­er indi­vid­u­als to refuse to car­ry out unlaw­ful or inhu­mane orders. The recent cri­sis over the imple­men­ta­tion of Trump’s exec­u­tive order on trav­el from cer­tain coun­tries and refugee entry pro­vides one oppor­tu­ni­ty. In Jan­u­ary, many Amer­i­cans were hor­ri­fied to read reports about trav­el­ers, includ­ing elder­ly peo­ple and chil­dren, who were detained at U.S. air­ports. Some were report­ed­ly held for 20 hours or more, some with­out food, hand­cuffed or denied access to wheel­chairs. The cri­sis illus­trates how ordi­nary peo­ple can obey orders to inflict cruelty.

It is essen­tial to deter­mine pre­cise­ly what hap­pened (or didn’t hap­pen), and take what­ev­er actions may be nec­es­sary to address wrong­do­ing. Trump’s revised trav­el ban has been blocked by a Hawaii fed­er­al judge, but Trump has said he intends to chal­lenge that deci­sion in court. Many observers describe this as a face-off between the exec­u­tive branch and the courts. But that leaves one essen­tial play­er out of the equa­tion: Congress.

The Trump admin­is­tra­tion has claimed statu­to­ry author­i­ty to sup­port the order. Con­gress could lim­it that pow­er sim­ply by pass­ing a law. Con­gress also ought to invoke its over­sight pow­er, its author­i­ty to con­duct inves­ti­ga­tions, by hold­ing hear­ings on the exec­u­tive order and its imple­men­ta­tion. Hear­ings should deter­mine pre­cise­ly what hap­pened. Are reports of what hap­pened at air­ports accu­rate? If so, why did fed­er­al employ­ees treat trav­el­ers so cru­el­ly? Who instruct­ed them? Did any actions vio­late the law? Did employ­ees have any recourse to not car­ry out inhu­mane orders? If not, the law must be changed to make clear that such recourse exists.

There are also reports that some trav­el­ers with valid U.S. green cards were hand­cuffed and forced to sign papers for­feit­ing legal rights before being deport­ed. One law­suit alleges that as many as 60 peo­ple with per­ma­nent res­i­den­cy sta­tus in the U.S. may have been unlaw­ful­ly coerced into [waiv­ing their rights].” More recent­ly, there are trou­bling reports that, in response to anoth­er exec­u­tive order by Trump, Immi­gra­tion and Cus­toms Enforce­ment agents are arrest­ing and deport­ing undoc­u­ment­ed immi­grants who have no vio­lent crim­i­nal records.

A girl brought to the U.S. at age 14, now a moth­er with two kids, was arrest­ed and deport­ed. There are reports that a 23-year-old man brought to the U.S. when he was 7 was arrest­ed and detained as a self-admit­ted gang mem­ber.” The man’s attor­neys say their client was repeat­ed­ly pres­sured by [immi­gra­tion] offi­cials to false­ly admit [gang] affil­i­a­tion.” Final­ly, there are alarm­ing accounts that some bor­der agents ignored court rul­ings. Trav­el­ers may have been unlaw­ful­ly denied access to lawyers, unlaw­ful­ly detained or even deport­ed in defi­ance of court orders. If they did so, that would amount to a con­sti­tu­tion­al cri­sis — espe­cial­ly if the pres­i­dent or high-rank­ing White House offi­cials were involved.

These reports are so far uncon­firmed, which is why a con­gres­sion­al inves­ti­ga­tion is nec­es­sary. But Con­gress will only act if cit­i­zens demand it. As Pax­ton puts it, Hitler or Mus­soli­ni could have been blocked, even legal­ly … peo­ple have to use the tools avail­able to them to … block [Trump].” It’s not too late — yet— but it is essen­tial to act now. 

Chris Edel­son is an assis­tant pro­fes­sor of gov­ern­ment in Amer­i­can University’s School of Pub­lic Affairs. He has writ­ten two books on pres­i­den­tial pow­er, and recent­ly wrote a book chap­ter describ­ing the prob­lem of con­sti­tu­tion­al fail­ure in the Unit­ed States.
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