CSPAN - Washington Journal Elizabeth Goitein

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April 18, 2025 12:54-13:26 - CSPAN

31:53

Washington Journal Elizabeth Goitein

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john mcardle

cspan 04:32

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jonathan elinoff

00:13

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bob in new york

callers 00:20

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unidentified		Here's on an idea.
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john mcardle ▲ ● ▼		And Liza Goitin is back with us.
		She's a senior director at the Brennan Center for Justice, where she focuses on national security and presidential emergency powers.
		And Ms. Goitin, I want to start with your view on one of the first acts of this second Trump administration.
		It was declaring a national emergency on the southern border.
		What does doing that mean for the powers granted to the president, in this case, to enforce his policies to lower the incidence of illegal immigration and secure the border?
unidentified		Thanks very much for having me.
		The National Emergencies Act is a law that allows the president to declare a national emergency.
		And when that happens, it unlocks enhanced powers that are contained in about 150 different provisions of law, all of which say something like, in a national emergency, the president can do X.
		So in January, the President declared a national emergency to address unlawful immigration at the southern border.
		He had declared a very similar emergency in 2019 during his first term.
		Now, emergency powers are obviously meant for urgent crises.
		It should be used for a sudden, unexpected situation.
		That's the definition of an emergency.
		And it's supposed to be very temporary and short term until the emergency passes or until Congress has time to address it.
		Now, in 2019, when the president declared an emergency, unlawful border crossings were hovering near a 40-year low.
		When he declared an emergency in January of this year, there had been a steady decline in unlawful immigration over the southern border for the past year.
		Both times, he invoked emergency powers that would allow him to move funding around within the Department of Defense in order to secure money for military construction projects.
		That was the wall, the border wall in 2019, presumably the same thing now.
		And he also invoked a provision that allows the Secretary of Defense to call up reservists in the military to go to the border and assist the Department of Homeland Security in border security.
john mcardle ▲ ● ▼		What are the rules surrounding the usage of the military in a national emergency?
		I think people are used to the idea of a national disaster declaration and National Guard members going and helping in the wake of a hurricane or a fire or something like that.
		What does it mean for securing the border to the United States?
unidentified		Well, in a national emergency, the president can call up reservists, but that is not a waiver of the Posse Comitatus Act.
		Now, the Posse Comitatus Act is a law that prohibits federal armed forces from participating directly in law enforcement activities, and that would include immigration enforcement.
		And this is really a critical protection for personal liberty and for our democracy, because an army turned inward can very quickly become an instrument of tyranny.
		There are exceptions to the Posse Comitatus Act.
		Not when the president declares a national emergency, but the president can invoke the Insurrection Act.
		That's a different law, and that actually does constitute an exception to the Posse Comitatus Act.
		It authorizes the president to use the military to enforce the law.
		It is also a power that's meant to be used only in the most urgent crisis situations where civilian law enforcement is completely overwhelmed.
john mcardle ▲ ● ▼		So in the wake of that legal background, legal definitions, explain your view on this story.
		And we talked about it on yesterday's Washington Journal as well.
		The U.S. Army is set to control land on the Mexican border as part of a base.
		Migrants could be detained there, according to officials that the AEP interviewed for that story.
unidentified		Right.
		So this appears to be an attempt to evade posse comitatus.
		I mentioned that there are exceptions.
		One of the loopholes is something called the military purpose doctrine.
		And under that doctrine, if the actions of the military have a primarily military purpose, then they do not violate the Posse Comitatus Act, even if they have an incidental law enforcement aspect.
		And a quintessential example of this, something that has come before the courts several times, is when a person intrudes on a military base.
		And in that situation, the military can apprehend that person and temporarily hold them until the police can come and get them.
		And that is considered not to be primarily for law enforcement purposes, but rather to protect the base, the personnel, the equipment, maybe sensitive information on the base.
		So what we're likely to see if there is this military installation spanning hundreds of miles along the southern border is that when a migrant crosses over the border in that area, the government will take the position that the migrant is not only violating immigration law, they are trespassing on a military installation.
		And therefore, apprehending, detaining, and removing that person will have a primarily military purpose.
		Now, of course, this is in this situation exactly the opposite of what's actually happening because the stated purpose of this installation is to facilitate apprehending, detaining, and removing migrants.
		That's not incidental.
		It's the purpose of the installation.
		Now, it's described as repelling an invasion.
		But whatever framing is used, the actions of actually apprehending and removing migrants, those are civilian law enforcement functions.
john mcardle ▲ ● ▼		Come back to the Posse Comitatus Act and the Insurrection Act.
		Are these two acts at odds with each other?
		And why do we have each?
unidentified		That's a great question.
		One is an exception to the other.
		The Posse Comitatus Act reflects a long-standing tradition in Anglo-American law against military interference in civilian government.
		And as I mentioned, that is really a very critical protection for our democracy.
		It prevents presidents from becoming kings, essentially.
		But the framers of the Constitution understood that there might be emergencies, situations that would require the use of the military very rarely, very sparingly.
		But they left it to Congress to strike a balance between those competing considerations.
		The Insurrection Act was basically Congress's solution to that.
		It's a law that allows the president to deploy federal armed forces domestically to quell civil unrest or to enforce the law in a crisis.
		It was meant to apply only, again, in absolute crisis situations where there was an urgent threat to public safety or to constitutional rights.
		It's been used quite rarely in this country, only 30 times in the nation's history.
		It hasn't been used since 1992, and it hasn't been used without a state's request for assistance since 1965.
		And it has never been used for immigration enforcement.
john mcardle ▲ ● ▼		If you, as viewers, have ever had a question about presidential emergency powers, now would be a great time to call in.
		Elizabeth Gortin is our guest.
		She's with the Brennan Center for Justice, working in the Liberty and National Security Program there, taking your phone calls as usual on phone lines split by political party.
		Republicans 202-748-8001.
		Democrats 202-748-8000.
		Independents 202-748-8002.
		She's with us for about another 35 minutes this morning.
		So go ahead and get your calls in.
		As folks are calling in, can you do one more of these acts that we've heard so much about and with this one more recently, the Alien Enemies Act?
unidentified		So that is an antiquated wartime authority.
		It's the last remaining vestige of the Alien and Sedition Acts that were passed in 1798.
		And it only applies during a declared war or an invasion or an incursion by a foreign nation or government.
		When those conditions are in place, the president can detain or deport any non-U.S. citizen age 14 or older who is a citizen of or was born in the enemy nation.
		So this is very much a wartime authority.
		The power that it grants is enormous on its face.
		The law does not require any hearings or due process before a person is detained or deported.
		So what we've seen is that President Trump has invoked this law claiming that the Venezuelan gang Trenda Aragua is somehow affiliated with, controlled by the Venezuelan government, and that we are under invasion by the gang.
		Now, this is a blatant misuse of the law.
		The term invasion in the law is very clearly meant to address armed attacks by political entities.
		It's not meant to encompass a rhetorical invasion by people coming to the country unlawfully or drug trafficking or anything like that.
		It's meant to refer to an act of war.
		And Trump's own intelligence community assessed that this gang is not actually controlled by the Venezuelan government.
		So it is a blatant misuse of a wartime authority for peacetime immigration enforcement.
john mcardle ▲ ● ▼		Elizabeth Gortin is our guest.
john mcardle ▲ ● ▼		And I tell you what.
unidentified		If I could add just one more thing.
		I mean, yes.
		So, And just to sort of talk about some of the things that we've all been seeing happening, the problem when you get rid of hearings and due process is that innocent people will inevitably be caught up in the net and deported, detained, whatever the action is under the law.
		That is why we have due process.
		It's very important to realize that under immigration law, regular immigration law, not this wartime authority, the president has ample authority to deport members of violent criminal gangs.
		So dispensing with due process, all it does is to virtually guarantee that innocent people will also be deported.
john mcardle ▲ ● ▼		A couple callers waiting to chat with you.
		We'll go first to Pendleton, Oregon.
		This is Dale on our line for Democrats.
		Dale, you're on with Elizabeth Goitin of the Brennan Center for Justice.
unidentified		Yeah, this whole discussion brings to mind the case of Henderson Mann, a resident of Henderson, Nevada, who sued the police force of Las Vegas for staging, you know, on Third Amendment grounds, for staging, you know, using his apartment as a staging area for a drug raid against, you know, a neighboring apartment.
		And so the argument was on Third Amendment grounds.
		However, the problem is, I guess, you know, we're talking about two distinct spheres of law.
jonathan elinoff ▲ ● ▼		The police, on the one hand, versus, okay, the military invokes a sphere of law that involves the sacrifice of one's life for one's country.
unidentified		Collateral damage can happen, a lot of things.
unidentified		And so then that might have gone toward the determination, you know, against this man who was trying to sue the police force, because then police function within the sphere, you know, of civil society.
john mcardle ▲ ● ▼		Dale, let me take up the case with Elizabeth Goyteen.
john mcardle ▲ ● ▼		Is it a case you're familiar with?
unidentified		Yeah.
		A little bit, but mostly the principle that the caller is articulating here is so important.
		There are many reasons for this line that we draw that is drawn in the law between the military and between civilian government.
		But one of those reasons is that soldiers are trained to fight and destroy an enemy.
		That is their training.
		That is their mission.
		They are not trained.
		They do not receive training.
		Most of them do not receive training in peaceably enforcing the law and respecting constitutional rights as they do so, which is sort of the job of domestic law enforcement.
		So throwing them into an unfamiliar law enforcement role that has very different rules without all of the training and preparation that law enforcement officers have to go through, it creates risks.
		It creates risks for civilians and for the soldiers themselves.
		So that is one of the many reasons why we have this dividing line.
john mcardle ▲ ● ▼		So some numbers from that same Associated Press story that we talked about earlier on U.S. military personnel currently assigned to the border.
		There's about 7,100 active duty troops under federal control at the border, and then about 4,600 National Guards troops under state control at the border.
		How does that compare to at any other time in the past when it comes to the southern border and U.S. military presence?
unidentified		So it's really important, and I'm glad that you raised this, to distinguish between the kinds of law enforcement activities that are prohibited by the Posse Comitatus Act and what the military is doing at the border right now and what the military has been doing at the border for the last 20 years.
		The Posse Comitatus Act only prohibits direct participation in core law enforcement activities.
		It does not prohibit logistical. assistance and support to law enforcement.
		And that is the role that the military has been playing pretty much continuously at the border since 2006.
		So the soldiers down there do things like stringing concertina wire or operating surveillance aircraft, sharing intelligence, repairing CBP vehicles, those kinds of sort of logistical support activities.
		Things have been a little bit different in this administration.
		The differences are that there are more troops at the border right now.
		There are about 10,000 troops.
		That's not an order of magnitude of difference under George W. Bush.
		There were about 6,000 troops at the border.
		So, you know, not a huge expansion, but definitely more.
		Trump is relying more heavily on active duty armed forces rather than National Guard forces.
		President Biden also used active duty armed forces, but normally National Guard forces have been the primary source of this logistical support at the border.
		So that is different under President Trump.
		And then also the types of support activities that we're seeing down there have expanded.
		So I've seen reports of soldiers actually patrolling the border and also military aircraft now are engaged in these deportation efforts.
		So those are new types of support that we haven't seen in the past.
		But at least so far, it doesn't appear that the military has crossed that line, that posse comitatus line, where they're engaged in directly apprehending, detaining migrants.
john mcardle ▲ ● ▼		To Lafayette, Louisiana, this is Paul, Line for Republicans.
john mcardle ▲ ● ▼		Good morning.
unidentified		Morning.
		Yeah, three things.
		Number one, I think he might have answered the question on due process for illegal aliens.
		Good morning.
john mcardle ▲ ● ▼		And Paul, we're listening.
		Got your first question.
		Just tell me your second and third, and then we can run with all of them.
unidentified		Okay, the second one is the birthright citizenship.
		Right.
		Yeah.
		Years ago, Chinese women would come in pregnant and get their child social security cards, and they stopped doing that.
john mcardle ▲ ● ▼		And what's your last question about, Paul?
unidentified		And you think they can deport all 8,000 illegal aliens out of the country?
john mcardle ▲ ● ▼		Elizabeth Gortine, due process, birthright, citizenship, and deportation.
unidentified		Right.
		So due process under the Constitution applies to anyone inside this country, no matter how they got there.
		But it's also important to point out that the Alien Enemies Act, which is what Trump is using right now, is not limited to people who are in this country unlawfully.
		It's not limited to undocumented people.
		You can be absolutely lawfully in this country.
		You can have a green card.
		And under the Alien Enemies Act, you can still be deported without any due process.
		So, and frankly, due process is one of the ways they find out if people are in this country unlawfully, right?
		Because if it's just the president say so, then there's no proof, there's no evidence, mistakes can be made.
		So due process makes sure that everybody gets fair treatment.
		And then if that process reveals that a person is in the country unlawfully or that a person has committed crimes that make them deportable, then they can be deported.
		On that second question about birthright citizenship, I'm not sure I totally understood the question, but birthright citizenship is, you know, it's established in the Constitution.
		It's not nuanced, it's not subtle.
		It is a right that we all have under the Constitution.
		And I think the core principle here is that the president can't just snap his fingers and make constitutional rights go away.
		There is a process to amend the Constitution if people feel that birthright citizenship is somehow problematic.
		But announcing that there won't be birthright citizenship anymore through an executive order is not how we do things in this country with our Constitution.
		And then what was the last question?
john mcardle ▲ ● ▼		Deportation was the third, but it leads to this question on two recent cases in the news, obviously getting a lot of attention.
		Kilmar Obrego-Garcia, the other case, the Palestinian graduate of Columbia University, Mahmoud Khalil, actually has a column in today's Washington Post writing about his detention by ICE and what could be next for him.
		Can you talk about the difference between these two cases and does one particularly concern you more than the other?
unidentified		So one of the cases is a deportation under the Alien Enemies Act, where there is no due process whatsoever and where there is at least one person whom the government has admitted was deported by mistake.
		I should mention that among the others, I mean, we've talked a lot about Obrego Garcia, and rightly so, because we know a lot about his case.
		There are other cases we know very little about, but one thing that has come up is that 75% of the people who are deported have no criminal record whatsoever in the United States or in the countries that they came from.
		So, you know, whether there are other innocent people in those other people who were deported without due process or hearings, you have to sort of assume that there might be.
		So to me, there are a lot of things that are troubling about that case, which include the fact that this law is being completely misused.
		There is no armed attack and act of war against the United States.
		Trentaragua is not the government of Venezuela.
		We're not at war with Venezuela, so it's a misuse of the law.
		But the law itself is troubling because on its face, it seems to allow the president to dispense with hearings and due process.
		There's a strong legal argument that laws that have been passed since the Alien Enemies Act, which dates back to 1798, have changed the legal landscape and that in fact, due process now is required regardless of what's in the Alien Enemies Act.
		And that was largely confirmed when the Supreme Court held that before anyone is deported under the Alien Enemies Act, they have to at least have a chance to get some judicial review and that they are entitled to due process.
		But whether they're also entitled to some of the other protections of immigration law is something that the courts are going to figure out as this moves forward.
		In the case of Khalil, the issues are different.
		In, you know, he is being, he is going through immigration proceedings.
		He is, he is getting that chance to have a hearing to make his case.
		The issues here are the First Amendment implications, because again, you know, people who are in this country on student visas or however they're in this country, they are entitled to First Amendment rights.
		And thus far, it appears that the government's basis for wanting to deport Khalil is his speech activity.
		And so that raises real concerns because the rights that Khalil has under the First Amendment are the rights that all of us have under the First Amendment.
		And so if he can be penalized for his speech, any of us can be penalized for our speech.
		So I think that that's a concern in that case for sure.
john mcardle ▲ ● ▼		More calls for you.
		This is Susan in Whitman, Massachusetts, Line for Democrats.
		Susan, you're on with Liza Goitin.
unidentified		Thank you very much for taking my call.
		First, I just want to tee it up and say that I'm really opposed to this deportation to this horrible prison in Venezuela and the use of this Alien Enemies Act.
		But the question I have is: do some of these other acts you said allow the president to move troops around and move funding around from different departments?
		But what about this Alien Enemies Act?
		Does it give the president the right to move our money, taxpayers' money, to pay this Venezuelan government to house these prisoners?
		And he asked the leader this week in the White House to build more prisons.
		I'm really opposed to have my taxpayer monies go into their Venezuela to support a prison where clearly there's human rights abuses going on here.
		It seems like a violation of our core American values.
john mcardle ▲ ● ▼		Liza Gortin.
unidentified		That is such a great question.
		I think that's the first time that anybody has asked me where the authorization for that $6 million comes from.
		And I'll tell you, I'm going to look into it.
		I don't know the answer.
john mcardle ▲ ● ▼		Maury in Portage, Michigan, Independent.
		Good morning.
		You are next.
unidentified		Good morning.
bob in new york ▲ ● ▼		I'm calling basically because the lady that's doing the talking, we don't know if she's an attorney, or at least I didn't hear she was, but she sounds like she's a typical, very typical Democrat.
unidentified		And you have to know the bias before you can pay attention to these people you put on.
john mcardle ▲ ● ▼		Liza Gortin, do you want to talk about your background and how you got into studying these issues?
unidentified		I'm an attorney and I work at a nonpartisan organization, the Brennan Center for Justice.
		I have been extremely critical of executive power under every president since I have started doing this work, and that includes Presidents Obama and Biden.
		You can, if you would like, look up my work.
		I've been consistent in my concerns about the steady growth of executive power and the ways in which power is essentially being transferred from Congress to the president, since 9-11 in particular, but for even longer than that, that's a theme in all of the work that I've done.
		So this is not, to me, this is not a partisan issue, not remotely.
john mcardle ▲ ● ▼		What did you do before the Brennan Center?
unidentified		Before the Brennan Center, I worked for the, I worked on the Senate Judiciary Committee as a staffer.
unidentified		Before that, I was at the Department of Justice for 10 years.
john mcardle ▲ ● ▼		And with us?
		Sorry, eight years at the and with us for about another 10 minutes this morning.
		Liza Goitin is our guest.
		Laura is in Spokane, Washington.
		Republican, good morning.
unidentified		Morning.
		Good morning.
		My question is: in that law, it does say the 1878 law.
		It says that it's a predatory invasion.
		And if you don't consider Trendo or TDA or MS-13 predatory people, how can you say that it's an unlawful thing for him to remove them because they are not directly connected to Venezuela or the foreign another foreign government?
		I don't see where it says in the law that there is, it has to be a declaration of war that says predatory invasion.
		And that's my question.
		And that's thank you for your time.
		Bye-bye.
		It's a really good question.
		So, and there are two separate things.
		You have to keep them separate.
		The law requires that it's an invasion or a predatory incursion.
		The law requires that it has to be by a foreign government or nation.
		So you do have to wrestle with that question of the relationship between Tantaragua and the Venezuelan government.
		The Venezuelan government is trying to actually crack down on this gang.
		And then there's a separate question of whether there is either a declared war or an invasion.
		And I understand you saying that you have to look at these people coming into the country as an invasion.
		That's why it's important when you're interpreting laws to also look at the context, what they call the legislative history, which is what the people who pass a law said about the law and why they were passing it.
		And if you study the legislative history of this act, it becomes extremely clear, and in fact, they were explicit about it, that this was being passed as part of the law of war, and that when they talked about invasions, they were talking about acts of war, armed attacks by political entities.
		And yes, the word invasion has a rhetorical meaning that may be consistent with, you know, or that Trump may be using in a way to sort of describe people coming to this country without authorization, gang members who come into this country without authorization.
		He's saying that's an invasion.
		But the way that that law is used in the Constitution, and in, because this was the same time period, right, roughly, it's about 10 years apart when this law was enacted, when the Constitution was ratified.
		The way that that term is used in both the Constitution and in this law, we have a lot of evidence from the Constitutional Conventions, from the legislative history of the Alien Enemies Act, that they were referring to an armed attack from a political entity, an act of war.
john mcardle ▲ ● ▼		A question on some of these topics.
john mcardle ▲ ● ▼		On some of these topics, but from a different perspective, Agaca writes in, when U.S. citizens travel to other countries, what civil rights do we have there?
unidentified		It depends on the country.
		Every country has its own laws, has their own constitutions, have their own rights.
		Their constitutions may distinguish between the rights held by citizens of that country and others.
		It really depends.
		We don't get to decide what rights people in our country have in other countries.
		It's up to their laws, their constitutions.
		In our country, people who are in this nation have constitutional rights.
		They have certain constitutional rights.
		They certainly have First Amendment rights.
		They have due process rights.
john mcardle ▲ ● ▼		Is that unusual compared to other countries?
unidentified		That's another good question.
		I'm not sure.
		I'm not sure I have the comparative law basis to answer that question.
		So, yeah, can't really say.
john mcardle ▲ ● ▼		John in Mississippi, Independent.
john mcardle ▲ ● ▼		Good morning.
unidentified		And you've been watching a discussion on President Trump's militarization of the U.S.-southern border on C-SMAN's Washington Journal.
		A live look now from George Washington University here in Washington, D.C., where in a moment we'll hear from scholars talking about the ongoing war in Ukraine, including the impact on Russian society and governance.
		This comes, as Secretary of State Marco Rubio said today, the U.S. could end its efforts on ending the war if there are no signs of progress in negotiation.
		Quote, he said, within a matter of days.
		While we wait for this discussion to get underway, we'll show you Secretary Rubio's earlier remarks.

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