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Jack Goldsmith, a former senior Justice Department official in the George W. Bush Administration, who helped design the post-9/11 anti-terror legal architecture, recently
suggested that Trump might actually want his travel ban to be overturned. That way, in the wake of an attack, he can use the judiciary as a bogeyman and justify any new efforts to push through more extreme measures.
I asked Goldsmith and others what the menu of options might be for a President Trump empowered by the justifiable fears Americans would have in the aftermath of a serious attack. “If it is a large and grim attack, he might ask for more surveillance powers inside the U.S. (including fewer restrictions on data mingling and storage and queries), more immigration control power at the border, an exception to Posse Comitatus (which prohibits the military from law enforcement in the homeland), and perhaps more immigration-related detention powers,” Goldsmith wrote in an e-mail. “In the extreme scenario Trump could ask Congress to suspend the writ of habeas corpus, which would cut off the kind of access to courts you are seeing right now for everyone (or for every class of persons for which the writ is suspended).”
He pointed out that President Abraham Lincoln suspended the writ of habeas corpus and ignored courts that insisted he didn’t have such power. “The point of the example is that the only question is not what powers Trump might ‘ask for,’ ” Goldsmith said, “but also what powers he might assert or assume or grab, and what he can get away with.”
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