 Good evening. I'm Lucette, co-head of the School of Law. And it is my pleasure to warmly welcome all of you to the third K. Everett Memorial Lecture. Tonight is an occasion to remember and celebrate K. K was one of our remarkable SOA students who followed the call of her conscience. She left a high-flying career behind her and completed her LLM at SOA's to focus on what was dear to her, working on behalf of some of the most vulnerable clients at Wilson's solicitors. Her fight for social justice is one of K's enduring legacies. It is a vision shared widely across SOA's and is very much in evidence in the topic of tonight's lecture on defending migrants in the era of Trump. The topic is emblematic of the turbulent times we live in where neoliberal economic crisis has fueled political populism in a number of countries worldwide. These wider developments have also impacted the university sector with many universities in the UK currently experiencing strike action over pensions, pay equality, casualization, and workloads. So as one of these universities, and we carefully considered whether to hold the event in the circumstance before deciding to go ahead. Michael Hanley, partner at Wilson's, will be speaking more to this also by way of expressing solidarity with the strike action. The subject of tonight's lecture was very much at the heart of K's interest. It is also becoming increasingly important at the School of Law. Human rights law, refugee and migrant law are subjects attracting many students in our undergraduate and postgraduate programs and in our pro bono work particularly in the detention law clinic. They've also been part and parcel of our approach and public engagement, such as the Center for Human Rights Law's recent workshop and submissions on immigration, detention and torture together with the NGO Freedom from Torture. Now the purpose of the K-Avrit Memorial lecture series is to remember K and to inspire the next generation of students and lawyers. So I'm delighted to welcome all of you to tonight's lecture, particularly K's family, friends and colleagues. It is also my privilege to welcome our speaker, Professor David Koh, National Legal Director of the American Civil Liberties Union. Thank you so much for coming all the way to the UK and saw us for the occasion. David will be introduced by Raza Hussain, an eminent QC from Matrix. Chambers work in the field of immigration and human rights law. It's an honor to have you with us tonight. Pat De Bruyne is the winner of this year's K-Avrit Prize for the best human rights dissertation and titled Queering Campuchia, LGBT Rights Discourse and Postcolonial Queer Subject Formation in Cambodian Queer Politics. So that was the full title of his dissertation. Pat could unfortunately not be with us tonight, so I will have to, and it is indeed my pleasure, congratulate him in his absence on this wonderful achievement. All that remains for me now is to welcome, thank, and hand over to Michael Hanley from Wissens Solicitors, the main organizers of tonight's K-Avrit memory lecture. Michael, please. Good evening. Thank you, Lutz, for those very warm words of welcome. It is also my great privilege to be welcoming you all, and in particular K's family, to our third memorial lecture. Thank you to SOAS, School of Law, for the tremendous support that you have given to this lecture series in memory of how much loved and respected partner K-Avrit, who passed away in 2016. We are extremely grateful for the collaboration that has been established. I also would like to congratulate Pat De Bruyne for winning the K-Avrit Prize for this year's top human rights dissertation. His work in connection with the gay community in Cambodia sits very well with Wilson's, who have a long history of activism and litigation in support of LGBT equality in immigration law and refugee protection. The winner's work also sits well with K's own pro-bono activism with the charity Body and Soul in the fight against stigma associated with HIV. As Lutz alluded, considerable thought has been given as to whether or not we can proceed tonight. We are well aware of the strike action that is underway. This lecture has been planned for a year and Professor David Cole has traveled from the US. And most importantly, this is a memorial event. The UCU are taking strike action as a very last resort on important issues, not just pay, but workload, casualization, and the equality gap in gender and ethnic pay reward. Academics face the scourge of employment insecurity and zero-hours contract as well. On behalf of Wilson's and in particular the partners in the firm, I want to express our strongest solidarity and sympathy with the ongoing strike action. This year's memorial lecture is bound, I believe, to inspire us in the work that we do. To the extent that our lecture series inspires legal activism, resistance, and commitment to the rights of the other, I believe it will capture the essence of K's work and honor the great standards that she set. In preparing this lecture, and publicizing it, there was a lovely piece in last week's newsletter from the New North London Synagogue drop-in for destitute asylum seekers, which is an excellent organization. And I'd like to share with you what was written in the newsletter. K Everett was one of the first immigration lawyers to volunteer at the drop-in. In those early days, we were feeling our way with all of the services we were providing. K's enormous expertise, meticulous attention to detail, and profound care for the asylum seekers shone through. We knew from the first time she walked through the door that we were extremely lucky to have her assistance. K was a passionate fighter for the most vulnerable of clients, many of them facing indefinite detention or immediate removal. So thank you to the drop-in for sharing those memories. I'm sure that all who knew K will remember those qualities also, and you will, of course, remember her sense of humor and her irreverence. She was a true dissident. I hope that through our lecture series, we will come together each year and be encouraged in the work that everyone in this lecture gallery has such a deep commitment to. So on that note, and without further ado, I have great pleasure now in handing over to Raza Hussain QC to introduce our speaker David Cole and chair the rest of the evening. Thanks very much. Good start. Thanks very much, Lutz. Thank you, Michael. I agree with everything Michael has said. I feel very privileged to be here in honor of K and to introduce our speaker, David Cole. I didn't have the privilege of knowing K well, but I know that she was the best and brilliant example of everything that we hold dear. She fought tirelessly, compassionately, and effectively for the most disenfranchised. It is wonderful that Wilson's and Sora's have organized this memorial lecture in her honor. David is that rare thing, a brilliant academic, a stellar practitioner, and a compelling writer. He is currently National Legal Director of the American Civil Liberties Union. This is, as the New York Times crossword puzzle put it in November last year, the group that told President Trump will see you in court. According to David's tweets, we hit episode 212 last week. The ACLU has done spectacular work in defending the rights of immigrants and the right to asylum subjects close to K's heart. David is going to talk about some of the cases. I just want to mention one. Last week, the ACLU argued a case in the Supreme Court, Vijayakumar Thayasingham, concerning whether asylum seekers facing expulsion have a right to judicial review and habeas corpus before the federal courts. In a cursory interview, the US immigration officials believed that the claimant had been picked up in a white van and tortured. But because he couldn't identify his kidnappers by name, you heard that correctly, his claim was refused. He was the subject of an unrevealable expedited removal order the US government has contended that claimants like him have insufficient ties to the US to be entitled to habeas corpus and that in any event, habeas doesn't lie because claimants are detained pending removal rather than for any other purpose. This all seems extraordinary to us but gives an indication of the vital rule of law work the ACLU are engaged in in this very pressing and anxious field. The case brings me on to Lord Bingham, that great judge as Lady Hale recently described him. In November 2006, Lord Bingham gave a lecture on the rule of law in Cambridge which the journalist Martin Kettle called the most important thing written by anyone anywhere that year. One of his sub-rules concerned the equal protection of the law which he explicitly extended to non-nationals. Lord Bingham cited an American academic author who had written that virtually every significant government security initiative implicating civil liberties including penalizing speech, ethnic profiling, guilt by association, the use of all administrative measures to avoid safeguards of criminal process and preventative detention has originated in a measure targeted at a non-citizen. David was of course that American academic author and his book which Lord Bingham cited, Enemy Aliens is one of several award-winning works that David has written or edited. He is legal affairs correspondent for the nation and a regular contributor to the New York Review of Books. The New York Times has described him as one of the country's great legal voices for civil liberties today. David is on leave from Georgetown University where he is professor in law and public policy teaching constitutional law, national security and criminal justice. In 2007, David organized a conference at Georgetown on the fundamental rights of non-nationals. He invited me to speak. I was struck by the extraordinary quality of the speakers who had come from all corners of the US. They told me this wasn't usual but when David called, you come. As an academic, David continued to practice. His victories included successfully defending for over 21 years group of Palestinian immigrants whom the government sought to deport for their political affiliations, striking down the anti-communist provisions of the Immigration Act and freeing several Arab and Muslim immigrants detained on secret evidence. His Supreme Court cases include Texas in Johnson and US in Eichmann which extended First Amendment protection to flag burning and the recently famous masterpiece cake shop, the gay couple cases who were refused service by bakery. This introduction is very much an inadequate summary of David's extraordinary achievements and abilities. I'm going to end it there because you've come to hear the main event. David, we're lucky to have you there. Thank you very much. David Colt. Thank you, Raza. That's just for such a generous introduction. It's the kind of introduction that would lead one of our great justices, Justice William Brennan, to say, I wish my parents had been here to hear it. My father would have been proud and my mother would have believed it. So thank you, Raza. It's a real honor to be introduced by one of the UK's leading barristers in Raza Hussein. Thank you also to Wilson solicitors and to SOAS for asking me to speak. Thank you especially to Kay Everett in whose memory we are gathered here today and who, from all I understand, really lived the spirit of fighting for the most vulnerable among us. And thank you to all of you who braved the weather and the virus to come into a gathering that would be banned in many parts of the world today because of the coronavirus. So I wanna talk about defending migrants in the Trump era, which is what we've been doing at the ACLU. We've been defending not just migrants, but in many ways it has been the most active area of our work under the Trump administration. But before I sort of get to today, I wanna go back in time to some earlier periods of anti-immigrant hysteria and fervor in the United States, just to sort of put it in perspective and really to sort of illustrate that we have been here before, but also that there are in many ways significant differences in the way the people, at least in the United States, have responded to the same kinds of anti-immigrant measures that we have seen in the past. And I think it is that response, again symbolized by the kind of work that Kay Everett did, that is where hope lies. So about 100 years ago, which I know it's just like yesterday in English history, but in US history, that's a long time ago. About 100 years ago, the United States was rocked by a series of terrorist bombings, eight of which went off within the same hour in eight different places in the United States, which in 1919 was a remarkable feat of coordination. You know, you didn't have cell phones back then. One of them blew off the front door of the home of the Attorney General of the United States, A. Mitchell Palmer in Georgetown in Washington, D.C. The government never found the bombers, but it did respond to the terrorist attacks. And it responded in a series of raids that picked up people, not for the bombing, but for their affiliations with anarchist or communist organizations across the country. They are known in history for the Attorney General in whose name they were carried out, A. Mitchell Palmer, as the Palmer raids. But they were actually the real mastermind of the Palmer raids was not Attorney General Palmer, but a young lawyer in the Justice Department who had just graduated a few years earlier from night school at George Washington University Law School and had risen relatively quickly in the Justice Department and headed up something called the Alien Radical Division of the Justice Department. Not the Radical Division, the Alien Radical Division of the Justice Department. His name was J. Edgar Hoover. Some of you may have heard of J. Edgar Hoover. He went on to lead the FBI for 50 years and take the measures that he had deployed against foreign nationals in the Palmer raids, which were targeted only and exclusively at foreign nationals, and extend them to apply them to U.S. citizens. So thousands of foreign nationals were rounded up during the Palmer raids. They were locked up without warrants. They were detained without lawyers. Ultimately, about 500 of them were deported. And many, many more would have been deported were it not for a single man, Louis Post, who was the acting Secretary of Labor at the time. And at the time, deportations were reviewed by the Secretary of Labor, and he overturned more than 1500 of the deportation orders. He was called up on impeachment charges in the House for having the temerity to overturn so many of the deportation orders. But even with his having overturned more than 1500, still 500 people were deported. And afterwards, writing about this period of the Palmer raids, Louis Post wrote that, and I quote, the force of the delirium turned in the direction of a deportation crusade with the spontaneity of water flowing along the course of least resistance. With the spontaneity of water flowing along the course of least resistance. And of course, at that time, and in many periods since then, in the United States and elsewhere, targeting foreign nationals has been seen as precisely the course of least resistance. And that's what I wanna talk about tonight. The course of least resistance, the way that course of least resistance has been repeated, and why we ought to be skeptical about it, and how we can fight back against it. So I wanna make basically three points tonight. One is that we ought to be skeptical about the selective targeting of foreign nationals, both because it tends to lead to overreach, and because it tends to create precedents that can then be extended more broadly, as J. Edgar Hoover did, to the citizenry at large. Secondly, I wanna suggest that this selective targeting of foreign nationals is wrong, as both a moral and a constitutional matter. And then third, I wanna talk about how some things are the same today, but how some very significant things are different, and why that ought to give us some hope. So first of all, why we ought to be skeptical about this reaction of pursuing the course of least resistance with all the spontaneity of water. And the first is simply that it leads to overreach. None of the people who were rounded up in the palmerades turned out to be the bombers, not one of the several thousand who were rounded up. They were picked up, many of them, simply for being in the wrong place at the wrong time. So everybody who was in a Lithuanian socialist chorus rehearsal got picked up. 39 bakers in Massachusetts who were meeting to start a co-op got picked up, and all the customers at the Trotsky Vegetarian Restaurant in Chicago. Now they probably should have gotten picked up, and none of them turned out to be the bombers. After 9-11, after 9-11, we responded by targeting foreign nationals, especially Arab and Muslim foreign nationals, and putting them into preventive detention as persons of interest to the 9-11 investigation. In the first two years, over 5,000 foreign nationals, virtually all Arab and Muslim, were put into preventive detention as of interest to the 9-11 investigation and anti-terrorism campaign. Not one of those 5,000 was convicted of a terrorist offense, not a single one. At Guantanamo, we have had, at Guantanamo, 775 people detained there, initially described as all the worst of the worst, the kind of people who would chew the cable on their transport plane to bring it down if we didn't tie them up and gag them. That was Dick Cheney's description of the people at Guantanamo, 775 of the worst of the worst. By the time President George W. Bush left office, he had released over 500 of these worst of the worst people. As far as we know, none of them committed a terrorist offense thereafter. Today, there are 40. So 735 of them, of these worst of the worst, were ultimately released without charges, without having been convicted of any kind of terrorist offense. We will do things to foreign nationals that we would not contemplate doing to U.S. citizens. Would the George W. Bush administration have authorized torture of U.S. citizens after 9-11? I don't think so, but it did authorize torture against foreign nationals. Would the Trump administration have intentionally separated toddlers from their parents for deterrence purposes if they were citizens? I don't think so, but they did it with respect to about 3,000 foreign nationals to try to deter people from applying for asylum. So the targeting of foreign nationals leads to this kind of overreaction, because of course, foreign nationals have no representation in the political process. And so the checks that will generally operate to protect those who are targeted if they're citizens just don't exist. At the same time, these measures often come back, once established with respect to foreign nationals, often come back to affect citizens. And this was the principal argument of my book, Enemy Aliens, that Raza cited. And it went through and showed that each of the measures of political oppression in the United States that had been used had been introduced as an anti-alien measure justified on the ground that they don't deserve the same rights that we do, but then once put in place and deployed against foreign nationals was often extended to US citizens. So the red scare of the 1920s, the targeting of people for their association with the Communist Party was introduced as exclusively an immigration measure. But it ultimately in the 50s was extended to US citizens and millions of American citizens were subjected to loyalty inquiries, lost their jobs, went to jail for their affiliation with the Communist Party. The presumption of guilt based on national origin introduced as a principle of targeting enemy aliens in the Enemy Alien Act of 1798 from which I took the title for my book. It said, when we're at war with a country, we can lock up people who are of that country's nationality just because they're of that country's nationality. That makes them an enemy alien. We don't have to show they've done anything wrong. We don't have to show that they're dangerous. We can just lock them up because of who they are. And we did that in World War I. We did that in World War II, we extended it to US citizens in the Japanese internment. We ended up locking up 110,000 people of Japanese descent in the United States, 70,000 of them US citizens. And then we extended that again to US citizens in the Trump administration, the concept of detaining enemy combatants introduced by outside of a declared war, introduced by George W. Bush after 9-11 to justify the detentions at Guantanamo was it were extended first to two US citizens by George W. Bush, Jose Padilla and Yasser Hamdi, both of whom were ultimately released because of court challenges. And then President Trump did the same thing with respect to a foreign national hell doesn't, I mean a US citizen hell doesn't enemy combatant in Iraq who we represented and was ultimately ordered released because the Trump administration was not willing to come forward and demonstrate why he was being detained. So what we do to foreign nationals in the name of national security often comes back to affect US citizens. As James Madison, one of the founders of the United States Constitution, wrote to Thomas Jefferson, one of the other founders, perhaps it is a universal truth that the loss of liberty is to be charged to provision against danger real or pretended from abroad. And if that is true then we all have a self-interest in fighting back against resisting the course of least resistance, the temptation to target those who are most vulnerable in a time of anxiety. It's also wrong as a moral and legal matter to target foreign nationals and deny them the same basic rights that citizens have. From a human rights perspective, this is obviously wrong because for humanity and human dignity, the fount of human rights do not apply only to people with particular passports. They apply to all human beings. The US Constitution does reserve some rights for citizens, the right to vote, the right to run for certain elective offices or limited to citizens. But the rest of the rights in the Constitution are described as rights of persons or people. So there isn't a justification for denying them to foreign nationals because they are foreign nationals. And the Bill of Rights was initially understood in the United States as an articulation of natural rights, of God-given rights. And God didn't give those rights to Americans. He gave them to people, to human beings. So it's wrong as a moral and legal matter to draw that distinction, but it's tremendously tempting to do so. So that brings me to today's period. And again, many things are similar, but I wanna emphasize what is different. So a quick review of what President Trump has done in the three-plus years that he's been in office. The first thing he did, his first effort as president, issued on a Friday after he was inaugurated on a Monday, was to ban immigration from Muslim majority countries, the Muslim ban. That was recently expanded to cover six more countries, three majority Muslim, three with significant Muslim minority populations. He authorized family separation, the practice of taking kids from their parents, because when they come to the United States to apply for asylum because they thought, well, if we do that, we might deter people from coming and applying for asylum. Not deter people who don't have claims, but just deter people from coming to the United States to apply for asylum. Children as young as one year old were taken from their families, not told where they were going. The parents were not told where they were going. In fact, the government often didn't have records of where the children were held. We challenged this policy and got it enjoined, but much of the work we've been doing is simply trying to identify where the kids are so that we can reunite the families. The government keeps a better record, well, the airlines keep a better record of where your luggage goes than the United States government did about where your children were taken. They revoked the protection for dreamers that President Obama extended. Dreamers were people who came, were brought to the United States by their parents without documents, but through no fault of their own. President Obama said, we're not gonna prioritize their deportation, we're gonna de-prioritize their deportation, we're gonna give them protected status, allow them to stay here, allow them to work. They've gone to our universities, they've become leaders in our community. 700,000 people in the country have that status. President Trump has sought to revoke that status, which would subject them all to deportation. Many of them have lived in the United States their entire lives. He has expanded the definition of public charge as a basis for denying permanent resident status to people. It's an old provision of law that says if you're likely to become a public charge, you can't become a permanent resident in the United States, but it was really not enforced. Trump has sought to enforce it by saying, if there's any likelihood that you might seek welfare benefits or any essentially, any state benefits, then you are ineligible to become a permanent resident. We only want people who are absolutely, independently supportive. He has banned asylum for people who don't enter the country through a port of entry, people who illegally cross the border and then seek asylum. He said, I won't give asylums to those people, even though the asylum statute in the United States says you are entitled to asylum if you face a risk of persecution abroad, whether you entered the country lawfully or unlawfully. He has sought to detain asylum seekers even where they pose no risk of flight, no danger to the community, as a basis for, again, deterring people from coming to this country and applying for asylum. The cost of applying for asylum is we will lock you up, even if there is no need to lock you up, even if you would be perfectly fine in the community while we adjudicate your asylum thing, we will lock you up. He has instituted a policy of return to Mexico where when people come at the southern border and apply for asylum and are given a hearing that often takes six months or a year to actually take place, we send them back to Mexico to await their hearing. We send them back to parts of Mexico along the border that our State Department in its travel advisories says no one should travel to because they are so dangerous. We send 20,000 foreign nationals back to Mexico under this return to Mexico plan. He has said that he will not give asylum to any person who seeks asylum in the United States after coming through a third country without first applying in that third country for asylum and being denied, which means nobody in Central America who comes through Mexico to the United States can get asylum unless they first apply for asylum in Mexico, which has a totally broken asylum system with massive delays and very few people get it. Unless you go through that process, you can't be eligible for asylum in the United States under the transit asylum ban. He has raised the standard for what you have to prove to get asylum, where your asylum is based on gang violence or domestic violence and the government's failure to protect you from gang violence and domestic violence. He has expanded something called expert review, which denies the right to get to a court to challenge the legality of your deportation. He has built a border wall despite the fact that Congress refused to give him the money he requested for the border wall. And then maybe, well, one more, two more, he sought to add a citizenship question to our decennial census with the goal of deterring immigrants from answering the census, which would lead to a reduction in count for those communities that have a lot of immigrants, which would in turn lead to less political representation in Congress for those communities and less federal assistance to those communities because both political representation and federal assistance is determined by the census numbers. And then finally, he has sought to bar undocumented teenage girls who are in federal custody from obtaining abortions when they learn that they are pregnant and make the hard decision to terminate their pregnancy. So that's a pretty long list and a pretty depressing list. What's the same? Well, Trump is relying on double standards. Many of these things would not be thinkable if applied to U.S. citizens. The Muslim ban targeting a group of people because of their religious identity being open about doing precisely that would have no chance of surviving if it were a domestic measure targeted at U.S. citizens, but it survived, ultimately, Supreme Court scrutiny because it was an immigration measure. The detention of asylum applicants to deter people from applying for asylum where they don't pose a threat of danger or risk of flight. For U.S. citizens, it has long been established that you can't lock somebody up preventively unless you can demonstrate that they pose a risk of flight, they won't show up for their criminal trial or what have you, or they pose a danger to the community. Absent that those showings, there's no justification for preventive detention. You can't engage in preventive detention just to deter without showing that the individual, him or herself who is being detained is a threat, but not with respect to foreign nationals. And then as I suggested at the outset, there is, it is unthinkable that even President Trump would separate children from their parents as a deterrent matter if they were U.S. citizens and not foreign nationals. So that's the same. Another similarity that the President is targeting foreign nationals as a political pawn because it is easy to do so and because it plays to his political base. He has said that Mexicans are criminals and rapists. He has described them as coming from what he calls shithole countries, in referring to Haiti, El Salvador, and African countries. This is more of the same. In 1919, during the Palmer raids, Professor John Wigmore, a law professor, defended the actions by calling the people detained alien parasites. Attorney General Palmer himself said, in reference to the people who were detained, out of the sly and crafty eyes of many of them leap cupidity, cruelty, insanity, and crime from their lopsided faces, sloping brows, and misshapen features may be recognized the unmistakable criminal type. But for the fact that that's actually literate, that could be President Trump. So what's different? What's different? Well, of great concern, I think, one of the things that's different is that this is not being done in the name of any true national security threat, or even any fake national security threat, really. The President has chosen to target foreign nationals not because there was a 9-11, not because there was a series of terrorist bombings, but because it's good politics for his base. It's good politics for his base. He asserted national security to justify the Muslim ban, but nobody believed it. Well, nobody except five Supreme Court justices believed it. Unfortunately, that's all you need in the Supreme Court. So the anti-immigrant fervor that we see in the United States and that we see in many countries around the world and particularly among far-right parties in many countries in the world is not, for the most part, driven by national security. It is driven by anxiety, I think, anxiety and fear, but the anxiety and fear is not so much founded in terrorism, for the most part. It is founded in fear of being overrun by people who don't look like us. It is fear of cultural change. It is a fear that the character of the nation state will be changed by the introduction of the other. And now, almost certainly, it will be driven by the fear of the coronavirus. So these things are the same, but a couple of things, critical things are different. The first, to me, is the civil society response to this anti-immigrant fervor. When the Palmer raids were undertaken in 1919, 1920, there was very little public opposition. The ACLU, my organization, was founded in 1920, in part in response to the concern that there was no civil society opposition to the detention of so many thousand innocent people. But we were just founded. We were, you know, 12 people or something at the time. Today, 100 years later, we are a very different organization. We had, I started working for the ACLU in about 11 days before President Trump became president, and people often say, well, how's it going? I say, well, you know, it's going all right. Before I started working for the ACLU, we had 400,000 members. Now I'm working for the ACLU. We have 1.8 million members. So I must be doing something, right? Then my daughter says, dad, there's a difference between correlation and causation. And I think there's somebody else who can take the credit for that, Donald Trump. But really it's the American people who deserve the credit for that because they saw the threat. They saw the actions that the president was taking, and they didn't sit back and say, oh, they're going after foreign nationals. They're not going after me. I'm gonna just sit back. They stood forward and took action and joined our organization and many other organizations to push back. And you see it with respect to subscriptions even to the New York Times and the Washington Post. The New York Times and Washington Post have never had higher subscriptions than they have today because people understand the importance of a free press to checking government abuse with a president like President Trump. So civil society response has been significantly different from what we saw in the Palmer raids. The Washington Post during the Palmer raids ran an editorial that said, this is no time for hair splitting over infringements of liberty. Today the Washington Post's sort of mantra is democracy dies in darkness. They introduced that mantra after President Trump was elected. So very different response from civil society. A very different response from the courts. In the Palmer raids, one judge, one judge in one case ruled that the treatment of the foreign nationals during the Palmer raids of one group violated the constitution and his decision was overturned on appeal. That was it. Otherwise it was the only thing that stopped the deportations was the courage of Lewis Post. This time around, the courts have responded aggressively. So I went through that laundry list of horrific things that President Trump has done with respect to immigrants, but with the exception of the Muslim ban, they've all been enjoined by the courts, all of them. The detention of foreign nationals to deter people from applying for asylum, the separation of families to deter people from applying for asylum, the raising of the standard for gang violence and domestic violence, the rule that we won't give you asylum if you come into the country illegally, the rule that we won't give you asylum if you transit through a third country without applying there first, the attempt to put the citizenship question on the census, the denying of undocumented teens access to abortion when they're in federal custody, every one of those enjoined by the courts. And then finally, what's different is the public response, the public response, the response of the people. In the polymer raids, again, it was the course of least resistance. People did not resist. It was them, it was communists, it was foreign nationals. They were mostly Russians and Eastern Europeans, not us. And so we sat back, not so this time around. I'll ever forget that first week of President Trump's term in office, my second week on the job. He issued the Muslim ban on a Friday. That night, Friday night, we filed the first action against the Muslim ban on behalf of two Iraqis that had been detained at JFK airport. The judge set an emergency hearing for the next night, a Saturday night, Saturday night in January in Brooklyn. And what happened over that weekend? Thousands of Americans across the country went out to airports throughout the country to protest the Muslim ban. They went to JFK, they went to Logan airport, they went to San Francisco airport. They even went to airports that had no international flights whatsoever. And this is remarkable in two ways. One, they were standing up, not for their own rights, but for the rights of the other. They weren't being targeted by the Muslim ban, but they were standing up to object and protest. And the second thing that's remarkable about it is they did it at airports. I don't know about you, but the last place I wanna be, unless I have to fly somewhere, is at an airport. It's a soul-crushing atmosphere. And yet, people got up off their couches, turned off the television, went out and protest by the thousands. That night in Brooklyn, the emergency hearing took place, something like seven o'clock at night in the Brooklyn courthouse. It was closed, but an amazing thing happened. People across New York called each other up and said, hey, what are you doing tonight? It's a cold January night in Brooklyn and it's raining. Kinda like this, except a lot colder. What do you wanna do? Hey, I have an idea. Let's go down and hang out outside of the Brooklyn courthouse and see what happens. And so there were thousands of people outside of the courthouse chanting, ACLU, ACLU, we stand with you. I can guarantee you in the hundred years of the ACLU, that has never happened. And it didn't stop there. The revocation of DACA, the attempt by President Trump to take back the protected status that President Obama gave to the Dreamers, which also has been enjoined by the courts, led to massive protests in Washington, in New York, across the country. Family separation, we filed the lawsuit that revealed the family separation policy. And it was so unpopular that when we got an injunction from the court saying you can't do it, the Trump administration didn't even appeal because they couldn't appeal, given how much popular support there was, popular opposition there was to this practice. One weekend in the early period of the family separation battle, Chrissy Teigen, who's a Twitter activist, former sports illustrated supermodel, married to John Legend, sent out a tweet in which she said, it's Donald Trump's 72nd birthday. The ACLU is fighting Donald Trump on family separation. In honor of Donald Trump's birthday, I'm donating $7,200 to the ACLU, and I encourage all of my followers to donate in denominations of 72 to the ACLU, kind of like a bar mitzvah only a little different. That weekend, we got a million dollars in small online donations in denominations of 72. Laura Bush, President George W. Bush's wife, wrote an op-ed against family separation. So this was not a situation in which Americans sat back and said, hey, it's not us they're targeting, it's them. It's a situation in which people stood up, banded together and protested what was happening, and it has led to significant resistance. So what hasn't changed is the tendency of politicians to turn to anti-immigrant measures where there is anxiety afoot. What hasn't changed is the undercurrent of racism that so often accompanies these sorts of moves, as you see from the quotes I gave you from Donald Trump and the Attorney General Palmer. But what has changed is the resistance. It's no longer the course of least resistance because Americans have stood up and said, we will be part of the resistance. And I think one of the sort of bright spots of this period in terms of the battle for immigrants is that Trump's anti-immigrant measures have drawn substantial popular opposition in which people see foreign nationals not as the other, but as human beings, and act in order to defend their rights as human beings. The right not to be deported when you've lived your whole life as a productive member of the United States community. The right not to have your child taken away from you just because you are a foreign national. The right not to be denied access to abortion just because you are a foreign national. The right not to be detained without justification just because you are a foreign national. And that opposition has mitigated the harm to some degree. I think it has buoyed the courts. Again, if you look back over history, immigration cases are very hard to win. And yet under President Trump, we've won virtually all of them, with the exception of that Muslim ban on the Supreme Court. And that popular opposition also makes it extremely likely that much of the harm will be reversed in November, or after the election of November, 2020. So the most important question we face is will President Trump's targeting of immigrants propel him to re-election in November, 2020? Or will his cruelty and racism and inhumanity in this respect help to defeat him in 2020 and to build a sense of support for the basic human rights of foreign national? So let me close with a quote. It's a quote that I used as an epigraph for my book, Enemy Aliens. It's from a Jewish philosopher of the 19th century, Hermann Cohen. And he's writing about the Bible, not about human rights or constitutional law. But what he says about the Bible is applicable, I think, to law, and in particular, to the human rights that Kay Everett so passionately defended. Cohen wrote, the alien was to be protected, not because he was a member of one's family, clan, or religious community, but because he was a human being. In the alien, therefore, man discovered the idea of humanity. Our greatest challenge is whether we can realize that idea of humanity amidst the uncertainty spawned by globalization, by global warming, by demographic change, by technological developments that are faster than we can assimilate, and now by the coronavirus. But given those sources of anxiety, those threats, the idea of humanity is more important than ever. And of this, we can be sure Kay Everett would have been with us on the front lines fighting for it. Thank you. So I think we have time for some questions. Do we? Yes. Yep. Questions? Do you want to call on people, Raza? Sure, sure, sure. Maybe I'll sit down over there. Thank you for the talk. Do you have a worry, I mean, the vocabulary certainly on this side of the Atlantic is a bit muddled about what's liberal, what's progressive. But with this kind of discourse around liberal and progressive values, do you concern that maybe there's a domestic or inward-looking tendency where we're kind of adopting a willingness to welcome the world into our honeypot rather than looking outward at the sort of global justice questions of the trade, the tax evasion, the global warming, and the military interventionism that actually creates the conditions for mass migration in the first place, and allowing people better conditions to be free in their own homes? Which I don't say in any way to suggest that people should not be welcome here. I absolutely should be, but I'm worried, is there ever sort of one at the detriment of the other slightly? So I don't think they're mutually exclusive. I think you have to fight on all fronts. Is that on? Yeah, I don't think they're mutually exclusive. I think you have to fight on all fronts. There are obviously many push factors that are leading to migration around the world and they are causing tremendous anxiety in many parts of the world. There are a variety of ways we should respond to them, including global justice, but including responding to global warming, but also including treating foreign nationals as human beings and extending to them the same rights that we extend to ourselves. I just don't see those as inconsistent and I don't think you can let the perfect be the enemy of the good and I think you have to fight where you can. Is it suiting Donald Trump's agenda to get defeated in the courts and to have this resistance because he's consistently played to his base and said, sod the rest of you. Is the resistance building his base so that he will, will he win in 2020? I know that was the question, everybody wanted that. So my prediction is worth nothing, but no, I don't think it's building his base. I mean, I think he is playing to his base. He has maintained his base. His base has stuck with him, but his base is not a majority of the American people. It's not close to a majority of the American people and he can't win just with his base. Will he win and I think many of these measures, precisely because they have inspired resistance because that resistance has been translated into victories against Donald Trump. It has mobilized the citizenry in ways that are, I think really remarkable. I have not seen as engaged a citizenry in my entire lifetime, as we've seen since Donald Trump was elected. It began with the women's march, the single largest march in the history of the United States put together in about four months between the time of his election and the day after inauguration. Just remarkable and there've been a whole series of movements since then, not just responding to his anti-immigrant measures, but responding to other aspects of him and his policy. So I mean, look at the Me Too movement. Sexual harassment, as far as I can tell, has been around since probably Adam and Eve, but it took the election of a sexual harasser who bragged about it to really launch a movement to fight back against sexual harassment in a significant way. The march for our lives, which was a response by the Parkland High School students after the Parkland High School mass shooting, mass shootings have been a regular feature of American life for my entire lifetime, but it was only in the Trump administration that it launched a nationwide movement of young people to call for and push for gun control and representatives who push for gun control. So what I see is tremendous activism on the part of Americans who want to take action, they wanna fight back. They're not gonna just sit back, but they're gonna fight back. And I think you'll see that in November 2020. Donald Trump won the election in 2016, not because he got a greater share of the vote than Mitt Romney or John McCain in the two elections before him. He actually got basically the same share of the vote as Romney and McCain, a little less than Romney actually. Romney and McCain lost to Obama, you may remember. Trump won. What made the difference? Not Republican turnout, but Democratic turnout. Democrats did not turn out for Hillary Clinton the way they turned out for Barack Obama. That's what made the difference. The Republican turnout was constant, the Democratic turnout dropped, and that made the difference. And even so, Hillary Clinton won the popular vote by three million votes and lost because of the electoral college, the crazy electoral college we have. But the only reason she lost was Democrats didn't turn out to vote for her. Why didn't they turn out to vote for her? Well, I think most people thought it was a done deal that Hillary Clinton was gonna win. So why vote? Some people were enamored of Bernie Sanders and sort of turned off to Hillary Clinton. And again, if she's gonna win anyway, why should I tarnish my principles by voting for her? There were sexism, I think also played a role in the reduced turnout for Hillary Clinton, but that's what decided the election. Since Donald Trump has been president, he has not gained any popularity. He's basically stayed the same. He's gone down and up a little bit, but he's basically stayed the same. But the engagement on the Democratic side has been higher than, again, I've ever seen it. And so I think whoever runs against him in November 2020 is very likely to win the election because people will come out to vote. People came out to vote for President Obama because he was an inspiring leader. People will come out to vote for whoever runs for the Democratic presidency because they wanna vote against Donald Trump. And the motive of fear and the motive of acting against someone is always stronger than the motive of, unfortunately, the motive of love and voting in favor of somebody. And so I think I'm quite confident that the Democrats will win the 2020 election. Don't ask me back if it does. Otherwise, unless you're gonna like give me citizenship or something. Lots of questions. We've got some time, so yeah, in the front. I just suggest that people introduce themselves. David, thank you. That was as devastating as it was meticulous and lorally. But you mentioned that there was an undercurrent of racism here, and I wanted to press you on that point, because it seems to me there's a way in which this is all about race and has always been about race, so that the introduction 100 years ago of these special measures targeted on aliens was arguably racially motivated to begin with, even if we understand race constructively, so that at the time of the Palma raids, Italians, and particularly southern Italians, fell on the other side of the white non-wick. Either racially motivated or became racialized in the course of its selective application. And it seems to me that that continues to be the case, that this is a form of racial coding and that its rollout or extension to citizens is really just a matter of the reactivation of always available racialized categories in a domestic context. So I think racism plays a big role. The extension of the enemy alien concept to citizens was through Japanese race, essentially national origin, but seen as the Japanese race. And so that is an example, but it's not all, and certainly, President Trump's appeal and his measures are driven by racial anxiety among the white majority, which is not gonna be the majority for that much longer. And so no question that race is part of it, it's not always the driving factor. I think it was in the Palma raids, initially the driving factor, that quote I gave you from Amichael Palmer about the criminal type, the misshapen brow, I mean, this is the other, it was essentially, that's the kind of racialized rhetoric that you see, but the extension of those tactics of guilt by association, of penalizing people for what they say and what they read was extended to communists of many of whom looked very much like the majority, the white majority in the United States in the 1950s. That was not a racialized measure. So it's not always racialized, but it's certainly one of the factors. I think it's important to recognize the factor, it's important to call it out, but it's also important to recognize that it's not all that's going on. Hi, thank you so much for your lecture, it's great. So I read about how Trump was setting up a department to denaturalize immigrants, citizens. Can you talk more about that? So this is a fairly regular refrain on the right in the United States, which is, let's revoke, and I understand here as well, let's revoke citizenship from people who we don't like for one reason or another, terrorists or treasonists or what have you. In the United States anyway, it is impossible to do with respect to citizens. You cannot lose your citizenship because of what you have done. So you could assassinate the president, lead an effort to overturn the United States by force and violence, engage in torture, and be found guilty of all of that, and they could not take your citizenship away. The Supreme Court has ruled that citizenship is a constitutional right. You can't lose your constitutional rights. You can give them up, you can wave them like you're right to a jury trial, you can wave it knowingly, voluntarily, intentionally, but it can't be taken away. Denaturalization is something different. Denaturalization, when someone becomes a citizen through the naturalization process, if they become a citizen through the naturalization process by fraud, they can be denaturalized because they got it fraudulently, and we've used that most prominently against former Nazi war criminals who came to the United States, fleeing justice in post-war Germany, hiding who they were, applied for citizenship, naturalized to become citizens, denied that they'd ever been involved in the persecution of others because that's one of the questions that's asked when you apply for naturalization, and became citizens. They are subject to being denaturalized, but absent fraud in the obtaining of citizenship, you can't have your citizenship taken away from you. So it's often thrown out there as a great idea, but there are some serious constitutional hurdles to it being effectuated. Yes, up there. Thank you, thank you for the lecture as well. It was very nice. I'm gonna ask a bit more of a historical question since that's what I primarily specialize in. You talked about the pre-emptive measures after 9-11 in particular, and obviously in history there are many examples of these things being violated as well in favor of what is called pre-emptive security such as the British Empire in India as the primary example. But I think even though in the UN charter established world, the response to 9-11 showed that pre-emptive security measures still trumped the concern for human rights. So do you think that somehow on a policy level those two can be reconciled, or will it be either the human rights first or the pre-emptive security first? So I think it's a constant struggle. I think that whenever a society faces a threat, there will be calls for prevention. You're seeing it right now with the coronavirus. Quarantine is a form of prevention. It's a form of prevention that probably deployed responsibly. Most people don't oppose, but it's a preventive measure. Preventive measures I think raise real concerns when they engage in things like guilt by association or racial profiling. When they use identity, affiliation, not conduct to predict that people will pose a threat. And I think we have to fight back against that whenever we can. I think human rights, it's contrary to human rights principles. It's contrary to due process principles. The fact that it's contrary to human rights and due process principles doesn't mean it won't happen, but it means that we have to resist when we see it happen. And we've done that. And in the United States, we, through our lawsuit, challenging the preventive detention of asylum seekers, which was designed to deter people from applying for asylum, we've seen more than 3,000 people released from detention. So will it happen again? Yes, that's why we need human rights protections and constitutional protections. But if we fight back, I think we can mitigate the harm. So I don't think there's a, it's not that prevention will win out over human rights or human rights will win out over prevention. It's gonna always be, they're always gonna be in tension. Jeffrey. Thank you. Thanks for a great lecture. Apart from the Muslim ban case, how many of the other provisions that have been challenged in the courts have actually got up to the Supreme Court? And if they haven't, what is the likelihood of their being overturned when they do get to the Supreme Court? Great question. Only two of the many, you know, Trump initiatives that we have seen since he took office have reached the Supreme Court. The Muslim ban, which we lost five to four after winning in every lower court in multiple cases across the country. And the census, the adding citizenship, the citizenship question to the census, which we won five to four with Chief Justice Roberts providing the swing vote. That's it thus far. So we're one and one in the Supreme Court. There are some cases that the Trump administration has not chosen to appeal, like family separation, like the denial of undocumented teens' access to abortion. When we won those decisions in those cases, they either didn't appeal at all or they appealed the first level but did not seek Supreme Court review. There are some cases where the Supreme Court has given us indications that it will rule for us when it ultimately gets there because it has denied requests for the government to stay the injunctions that we've obtained in the lower courts. There are some where it has given the indication the other way because it has granted stays pending appeal of some of the injunctions that we've obtained. But the short answer is two have gotten there, two have been ruled on, we're one and one. The third, this term, is the DACA revocation case. The lower courts declared his revocation of DACA illegal. That is before the Supreme Court. It has been argued, we'll hear how that comes out by the end of June. And the rest of them have not gotten there yet. And Tharassingam is not the case that Raza talked about, constitutionality of taking judicial review away from immigrants and deportation cases. That, I actually don't count that as a Trump case because it began before Trump. They have taken that up where Trump is on the other side, but Obama would have been on the other side of us on that one too. But many of these measures have not reached the Supreme Court, partly because justice is slow in the United States. Again, if in November 2020, President Trump loses the election, virtually all of these measures will be repealed by the next president. Because everything that I talked about was done by unilateral executive action. None of it was done through a statute passed by Congress, which is hard to repeal because you have to pass another statute in order to repeal it. All of it was done through unilateral executive action, which means if the next president comes in with a sort of mandate to reject what the former president did, we will see most of them get swept away before they reach the Supreme Court. If Trump wins in November 2020, well then the least of our worries is these cases going to be a serious worry, but there will be many, many other worries if President Trump wins the election. Muslim ban, you got to version three, didn't you? Oh yeah, even with the Muslim ban, I think in one sense, in one big sense we lost, which is that at the end of the day, the Supreme Court ruled against us, but we struck down the first Muslim ban. He did not take that to the Supreme Court. He came out with a revised Muslim ban, which was narrower than the first. We struck down the second ban. He did not take that to the Supreme Court. He revised that one, came out with a still narrower version, and then took the third version in the Supreme Court, where they won by a single vote. So even there, the legal resistance led to a more tailored ban than was first put in place. Hi, thanks for your lecture, it was really inspiring. This is a general one. I'm just wondering what advice you would give to the resistance here in the UK, defending migrants in the era of Brexit? So, I mean, I far be it from me. I mean, I think I should give that question to Raza or Wilson Solicitors or Kay Everett's family. I mean, so I can only speak at the most general level, but I do, I really think that civil society resistance is tremendously, tremendously important. In the United States, we have the First Amendment of the Constitution, which protects speech rights and press rights and religious freedom rights. And we often think about the First Amendment as an individual right, as a right to believe what you want and say what you want and read what you want and hang out with whom you want and worship what you want and et cetera, et cetera, et cetera, it's an individual right. But I think it's really, it is an individual right, but I think it's probably, at least as much and maybe more importantly, a collective and structural right. It is a right of the people to resist because what does it protect? It protects the right of people to speak out against what the government does. It protects the right of people to associate with like-minded others to amplify their voices. It protects the right of the academy, academic freedom, where so much fundamental normative criticism comes from. It protects the right of the press, which sheds light on government abuse. It protects the right of assembly, the right to protest in the streets. It protects the right to petition for government change. It protects the right of religious freedom, which protects the right of communities to come together around a set of norms that is not the norms dictated by the state. And that is critical, I think, to checking government abuse. And you know it's critical to checking government abuse because when you look around at what right-wing autocrats do when they come to power is they target those, those exercises of rights. They target dissidents. They target the civil society, NGO sector. They target the academy and unless the religious, you know, the majority of religion is behind them, they target religion. So you know, I think that's what we have to do if we are going to push back. We have to use our rights, use our ability to speak, to associate, to critique and to demand change. And if we do in an organized way, I think we can be very powerful. And without that, I don't think you can rely on separation of powers. I don't think you can rely on bills of rights. I don't think you can rely on judicial review because absent that support for liberty in the people, you don't have liberty. I often close my talks with a different quote. It's a quote from a judge in United States called Learn at Hand. He was said to be the greatest American judge not to sit on the Supreme Court. And in 1942, he was invited to give a talk in Central Park. And it was a remarkable occasion. It was a naturalization ceremony for 150,000 newly minted citizens of the United States. And just think about the difference between that attitude towards foreign nationals where we hold a massive celebration in Central Park to honor the fact that people are becoming Americans to the kind of rhetoric you see today. But Judge Hand was asked to give a speech and he called it the spirit of liberty. And he said something like, liberty lies in the hearts of men and women. When it dies there, no court, no constitution, no law can save it. While it lies there, it needs no court, no constitution, no law to preserve it. Now like many great quotes, this is an overstatement. We need a constitution, I think we need a constitution. We need courts, we need laws. They remind us of our commitments to our better selves and our better principles. But it recognizes a fundamental truth which is that ultimately liberty lies in the hearts of the people. And the ultimate guardians of liberty have to be the people. Which is why I think, why I'm so honored to be part of the ACLU, an organization of the people, 1.8 million people now who are committed to the concept of defending liberty for all. You have your NGOs, they're smaller, it's a smaller society, but I think support those organizations. And if they're not doing an adequate job, start new ones in the wake of President Trump's election. A group of two former assistants to Congressional, two members of Congress wrote a manual for how to be effective in lobbying Congress. And they put it on the internet. Usually that might get five or six downloads, maybe. It got millions of downloads and ultimately spawned a movement called Indivisible where people around the country come together in local communities to stand up and take action to defend liberty and to resist the abuses of President Trump and of local governments. It's that that we ultimately need to rely upon. And so I would encourage people to, if you're not engaged, get engaged. If you're not supporting those organizations that are on the front line, support them. Following Kay Everett's footsteps, leaving corporate law to fight for the most vulnerable. David, thank you very much. I'm afraid we've run out of time and Gina Heathcote is gonna come up and close tonight. Hi, I'm Gina Heathcote. So I'm the co-head of the School of Law here at Sirus. I have a couple of thanks to offer before the formal part of this evening ends. It is a sign of a good speaker when you can just sit and listen and listen and not thinking you're uncomfortable in your chair. But before I do the thanks, I want to, well, it's my pleasure to invite you all over for a wine reception after we leave the building here. So you don't get lost. The reception will be held in the cloisters of the Paul Webley wing. So once you head back upstairs and you stand on the steps at the entrance to this building, just head to your left and the next building is Senate House or the Paul Webley wing. My colleagues have said to say, if you don't look enough like a SOAS student, just say that you're a part of the K Everett lecture. And I'll let you in. It's on the ground floor in the cloisters. So please do join us, come and talk to David and everybody else here. So a few thanks. First of all, David, thank you for an important, hopeful lecture. I really want to thank you for your optimism, timely and inspiring. And on behalf of the School of Law, I have a copy of the Science Law Journal to give to you as well. Thank you. Thank you also to Michael Hanley and all his colleagues at Wilson's. It's been a real pleasure working with you and thank you for your support in getting the lecture happening. Thank you, Raza, for coming along and chairing and your introduction. Lutz and I have really found it a great pleasure to work with you all, everyone at Wilson's, and also thank you, Leslie Kennedy Neal, for your support in the background. It's been vital. It really is our pleasure to be able to celebrate Kay as a former student from the School of Law here at SOAS. I actually joined the School of Law the year after Kay studied in 2006. But when you were speaking, Michael, about Kay's, what kind of person she was, it did strike me that, oh, I know Kay, that sounds like all of our very best students that come from the School of Law here at SOAS. And they always say to me that they never really leave SOAS. And so it's just such a pleasure to be able to kind of honour Kay and bring her back and remember annually through the lecture series. So thank you all also to my admin team in the School of Law. I can't see where you are hiding from me, but particularly Raksha, who has been so helpful. And no matter what I ask her, she always does so and helps me out with a smile. So thank you all of the admin team in the School of Law. Thank you to everybody here tonight, including Kay's family and Kay's friends and colleagues, SOAS students and my colleagues here in the School of Law. You are most welcome. Please do join us over for the reception. And we'll see you there at the cloisters. Thank you.