US Secretary of State Mike Pompeo (R) holds a joint news conference on the International Criminal Court with US Defense Secretary Mark Esper (R), at the State Department in Washington, DC, on June 11, 2020. – US President Donald Trump on Thursday ordered sanctions against any official at the International Criminal Court who prosecutes US troops as the tribunal looks at alleged war crimes in Afghanistan.
A federal judge in New York City dealt a severe blow to the outgoing Trump administration’s last-minute efforts to derail the International Criminal Court (ICC) in an opinion and order released late Monday.
U.S. District Judge Katherine Polk Failla, an appointee of former President Barack Obama, issued an injunction against President Donald Trump’s controversial June executive order sanctioning ICC prosecutors for investigating torture, rape and other war crimes allegedly committed by CIA officers and members of the U.S. military.
In a 34-page opinion and order, the judge determined that the Trump administration restrictions likely unconstitutionally “prohibit or chill” speech to a significant degree in order “to obtain and exert leverage” over ICC prosecutors “so as to induce [the ICC] to desist from their investigation of U.S. and allied personnel.”
Trump’s move, a reprisal action taken against the international tribunal after the ICC’s top prosecutor authorized an investigation into U.S. war crimes committed in Afghanistan during the co-called “Global War on Terrorism,” was heavily criticized at the time. Nearly 200 law professors, legal scholars and international lawyers penned an open letter calling on the White house to rescind those retaliatory sanctions–which were to be implemented under the authority of the International Emergency Economic Powers Act (IEEPA).
Four law professors and a public interest law firm–the Open Society Justice Initiative–led by Benjamin N. Cardozo Law Professor Gabor Rona, the director of the Cardozo Law Institute in Holocaust and Human Rights, followed up their words with action by filing a lawsuit against the executive order on First and Fifth Amendment grounds.
“The International Criminal Court is the last line of accountability for those who commit genocide, crimes against humanity, and war crimes,” Rona said in a statement. “To make it a crime to assist the court is not only unconstitutional, it puts the United States in league with those who commit the most serious of crimes under international law. We hope and trust that the incoming Biden administration will prioritize the repeal of this wrong-headed policy.”
The law professor plaintiffs later alleged an Administrative Procedure Act (APA) violation but only by way of a cursory mention that Trump’s executive order violated the nation’s overarching administrative law–and therefore the court did not address the merits of that claim.
On Monday, the judge in Southern District of New York (SDNY) found that the law professors were likely to succeed on the merits of their First Amendment claim but unlikely to succeed on the merits of their Fifth Amendment claim. Two additional claims–one statutory and one in the common law–made by the plaintiffs were rejected on the basis that they were not yet ripe for judicial consideration. But the partial victory on First Amendment grounds was enough to put the kibosh on the Trump administration’s efforts against the ICC–for now, at least.
The court explained:
Plaintiffs argue that the Executive Order limits [their] speech by subjecting them to enforcement under IEEPA, and thus causes irreparable harm. [The Trump administration defendants] seemingly concede that irreparable harm is tied up with the merits of the constitutional claims…As relevant here, given [the law professors’] likelihood of success on some of their First Amendment claims, courts “presume” irreparable harm when a plaintiff “alleges injury from a rule or regulation that directly limits speech.”
Central to their victory is that each of the law professors’ have previously worked “with two designated persons and other ICC personnel” who are currently subject to the U.S. sanctions regime. All four of the law professor plaintiffs “desire to continue doing” such work but fear that their efforts to practice law with the globally-respected tribunal are imperiled by those potential sanctions.
In other words, their free speech was being indirectly attacked by the Trump administration, the law professors claimed. The judge agreed.
Reasoning that the executive order and the implementing regulations restrict the plaintiffs’ speech, Judge Failla found that those restrictions were subject to strict scrutiny and ruled them an unconstitutional content-based restriction on the First Amendment.
“The Order and the Regulations prohibit speech activities that benefit [two ICC prosecutors] in any way, regardless of whether there is a nexus between that activity, or the benefit of that activity, and the Office of the Prosecutor’s Afghanistan investigation,” Failla explained. “As a result, [the law professors] believe they are barred from providing advice to the Office of the Prosecutor on a range of topics and from assisting with other ICC investigations and prosecutions.”
The injunction, while only preliminary, signals that the executive order has severe constitutional defects because such injunctions are only issued when a party is likely to win on the merits of their underlying case. There is also the potential that the currently unripe claims could factor into an upper court’s review of the district court’s decision here.
Again the District Court:
“The loss of First Amendment freedoms, even for minimal periods of time, unquestionably constitutes irreparable injury.” Furthermore, plaintiffs have “establish[ed] an actual chilling effect.” The prospect of enforcement under IEPPA has caused plaintiffs not to speak, and hence to forgo exercising their First Amendment rights. Thus, enjoining [the U.S. government] from enforcing IEEPA’s civil and criminal penalties against plaintiffs would eliminate this chill and prevent irreparable harm. Accordingly, this factor weighs in favor of granting the preliminary injunction.
The Trump administration’s foremost arrow in their legal quiver was to argue a national security justification “to prevent and potentially punish” the law professors’ speech. But the court summarily rejected that argument by citing precedent which noted: “national-security concerns must not become a talisman used to ward off inconvenient claims” or to “cover a multitude of sins.”
The plaintiffs, as noted above, now insist the impetus is on the incoming Joe Biden administration to respect the court’s decision and render the lawsuit moot by rescinding the widely-criticized executive order. The current administration has until Jan. 19–the day before inauguration day to respond to the opinion and order. The first hearing for the case is currently scheduled for Feb. 4–when the Trump administration will be a thing of the past.
“This preliminary injunction affirms what we have said from the start: the executive order is misguided and unconstitutional, violating our fundamental rights to free speech,” Executive Director of the Open Society Justice Initiative James Goldston said in a press release. “Rather than spending time defending an order in direct conflict with Washington’s historic support for international justice, the incoming administration should rescind it on day one.”
Read the court’s full decision below:
[image via YURI GRIPAS/POOL/AFP via Getty Images]
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