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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

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)

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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. 

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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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