Report

Federal Judges Bore Into National Security Argument For Trump Travel Ban

Trump’s executive order crashed into a skeptical panel of three federal judges, cuing up a likely Supreme Court standoff.

WASHINGTON, DC - FEBRUARY 7:  (AFP OUT) U.S. President Donald Trump speaks as he meets with county sheriffs during a listening session in the Roosevelt Room of the White House on February 7, 2017 in Washington, DC. The Trump administration will return to court Tuesday to argue it has broad authority over national security and to demand reinstatement of a travel ban on seven Muslim-majority countries that stranded refugees and triggered protests. (Photo by Andrew Harrer - Pool/Getty Images)
WASHINGTON, DC - FEBRUARY 7: (AFP OUT) U.S. President Donald Trump speaks as he meets with county sheriffs during a listening session in the Roosevelt Room of the White House on February 7, 2017 in Washington, DC. The Trump administration will return to court Tuesday to argue it has broad authority over national security and to demand reinstatement of a travel ban on seven Muslim-majority countries that stranded refugees and triggered protests. (Photo by Andrew Harrer - Pool/Getty Images)

A three-judge panel on a federal appeals court on Tuesday tore into the Trump administration’s argument that a restraining order on his executive travel ban puts the country at risk.

A federal judge in Seattle hit pause last week on President Trump’s Jan. 27 executive order, prompting the administration to appeal, with the president himself lambasting “so-called” judges who would question his authority. On Tuesday, judges on the 9th Circuit Court of Appeals in San Francisco questioned the Department of Justice’s argument that the temporary freeze to the order was causing irreparable harm from a security perspective.

“Is there any evidence connecting these countries with terrorism?” asked Judge Michelle T. Friedland, an appointee of Trump predecessor President Obama, pointing to the seven Muslim-majority countries in Trump’s ban.

“These proceedings have been moving very fast,” DOJ Special Counsel August E. Flentje said, a line he repeated throughout the hour-long oral argument, which took place over the phone. (The countries covered by the ban — Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen — have not played a part in recent terror attacks in the United States.)

The judges chided the government attorney, pointing out it was the administration that asked for the emergency hearing to lift the restraining order and allow immigration authorities to resume enforcing the directive.

Then, Trump’s special counsel argued that the courts could not review such executive orders due to the president’s broad authority, granted by the Constitution and Congress, over national security and immigration.

The administration sought to throw out the ruling “because the court’s decision overrides the president’s national security judgement,” Flentje said.

“Are you arguing then the president’s decision in that regard is unreviewable?” Friedland asked.

“Yes,” Flentje answered. The government doesn’t believe there are any constitutional limitations that prevent the president from taking such an action, he added.

While Flentje could point vaguely to convictions of Somali-Americans for material support for ISIS, and Congress and the Obama administration did list the seven countries as areas of concern, none of their citizens have killed any Americans in terrorist attacks on U.S. soil. Since 1990, of the 182 terrorists inspired by jihadist ideology who have attempted to carry out attacks in the United States, or on inbound flights, 101 were U.S. citizens and “few” were “recent arrivals,” according to testimony by the RAND Corporation. Other legal experts have expressed concern that Trump’s often baseless invocation of national security threats could be a power grab.

Tuesday’s oral argument was focused more narrowly on the government’s argument against the temporary restraining order, issued in response to a complaint from Washington state, but a handful of states have brought suit against Trump’s directive.

Washington, later joined by Minnesota, successfully challenged Trump’s executive order, arguing that the president overstepped his authority and violated both the Constitution and federal immigration law. The directive, they said, caused “irreparable harm” to those in their states and elsewhere by “separating families, stranding our university students and faculty, and barring travel.”

On Monday, nearly 100 Silicon Valley companies, more than 280 law professors, 16 state or district attorneys general, 10 former top national security officials, and a slew of civil liberties groups joined the opposition to the travel ban.

The group, including former secretaries of state John F. Kerry and Madeleine Albright, former CIA director Leon Panetta, and former CIA and National Security Agency director Michael V. Hayden, said there was “no national security purpose” for barring the seven countries.

Trump’s attorneys argue the executive branch has the power to determine whether foreign nationals should be allowed into the United States, and the courts, by questioning that authority, are taking an “extraordinary step of second-guessing a formal national-security judgement.”

Divisions within the administration over what the order means or which officials were consulted before it was issued have spilled out into the public. The DOJ seemed to acknowledge the confusion, asking the judges at the least to narrow the restraining order so that immigration authorities could let in legal permanent residents, foreigners already in the country, or valid-visa holders, while continuing to enforce the directive against other travelers and immigrants.

The judges on Tuesday questioned what would prevent the administration from subsequently changing its interpretation of the order yet again. And DOJ and the bench sparred over the intent behind the administration’s immigration order. The judges referred to public statements indicating a clear intent for the ban to discriminate against Muslims, which plaintiffs cited as evidence of a “desire to harm a particular group.”

The administration has claimed the order is not a Muslim ban, but the order itself gives priority to persecuted religious minorities within the countries. Trump promised such a ban on the campaign, and advisers have been frank about the purpose of the order; in recent days, Trump himself used the term “ban.”

As close advisor Rudy Giuliani put it — and the Washington solicitor general noted during the oral argument — the president told him he wanted a “Muslim ban” and to find “the right way to do it legally.”

The DOJ protested that the court should not “enjoin the president’s national security authority based on some newspaper articles.” But Judge Richard Clifton, a George W. Bush appointee, pushed back, saying they were admissible, though it had seemed Trump’s statements were not made at the time “to be a serious policy principle.”

Credit: Pool / Pool

Molly O’Toole is a senior reporter at Foreign Policy, covering immigration, refugees, and national security. She was FP’s sole 2016 presidential campaign reporter, on the trail from New Hampshire to Nevada. Previously, she covered the politics of national security for Atlantic Media’s Defense One, where she reported from Congress, the White House, the Pentagon, and the State Department. Before that, she was a news editor at the Huffington Post. Molly has also reported on national and international politics for Reuters, the Nation, The Associated Press, and Newsweek International, among others, from Washington, New York, Mexico City, and London. She received her dual master’s degree in journalism and international relations from New York University and her bachelor’s from Cornell University and in 2016 was a grant recipient of the International Women’s Media Foundation. She will always be a Californian. @mollymotoole

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