Court sees no proof of ter­ror ties to na­tions on Trump list

9th Cir­cuit uses Twit­ter posts against pres­i­dent

The Washington Times Daily - - FRONT PAGE - BY STEPHEN DI­NAN

A fed­eral ap­peals court launched an­other as­sault on Pres­i­dent Trump’s ex­treme vet­ting travel ban Mon­day, rul­ing that the White House never proved a con­nec­tion be­tween ter­ror­ism and the six ma­jor­ity-Mus­lim coun­tries tar­geted by Mr. Trump.

The court also be­came the lat­est court to throw the pres­i­dent’s own words back at him — this time us­ing Mr. Trump’s Twit­ter posts last week, say­ing the pres­i­dent’s claims of a travel ban aimed at “cer­tain dan­ger­ous coun­tries” prove he went be­yond the law.

In a unan­i­mous rul­ing, the three-judge panel of the 9th U.S. Cir­cuit Court of Ap­peals said that while Mr. Trump claimed he was act­ing in the in­ter­ests of na­tional se­cu­rity, they found his rea­son­ing lack­ing. With­out a bet­ter jus­ti­fi­ca­tion, they said, his ex­treme vet­ting ex­ec­u­tive or­der is il­le­gal.

The de­ci­sion leaves in limbo Mr. Trump’s at­tempts to halt travel from the six coun­tries and his pause on the refugee pro­gram.

But the ap­peals court did give the ad­min­is­tra­tion per­mis­sion to take other steps to con­duct an in­ter­nal re­view of its vet­ting, carv­ing some space out of a dis­trict judge’s near-to­tal evis­cer­a­tion of the pres­i­dent’s March 6 ex­ec­u­tive or­der.

The en­tire is­sue is likely to be de­cided by the

Supreme Court, which is speed­ing a sim­i­lar case from an ap­peals court in Vir­ginia that up­held a more nar­row in­junc­tion on Mr. Trump’s plans.

White House press sec­re­tary Sean Spicer said he was con­fi­dent that Mr. Trump would pre­vail in the high court, and he seemed to ques­tion the le­gal rea­son­ing of the ap­pel­late judges.

“Any lawyer worth their salt 100 per­cent agrees the pres­i­dent’s fully within his rights,” Mr. Spicer said.

The rul­ing breaks new ground.

Other courts that have blocked the travel ban ruled that Mr. Trump showed an­i­mus to­ward Mus­lims dur­ing the pres­i­den­tial cam­paign and said that taints his case. They ruled that his pol­icy vi­o­lated the Con­sti­tu­tion.

The 9th Cir­cuit, how­ever, said it didn’t need to get to that point. It ruled that Mr. Trump’s poli­cies break im­mi­gra­tion law, which makes them in­valid.

Ac­cord­ing to the judges, the Im­mi­gra­tion and Na­tion­al­ity Act does grant the pres­i­dent broad pow­ers to de­ter­mine whom to ad­mit to the coun­try, but if he is go­ing to ex­clude a class of peo­ple, then he must make an of­fi­cial “find­ing” why ad­mit­ting them would be detri­men­tal to the U.S.

But the court said the ad­min­is­tra­tion hasn’t proved the dan­gers the U.S. faces by con­tin­u­ing to ad­mit vis­i­tors from Iran, Libya, So­ma­lia, Su­dan, Syria and Ye­men — the six coun­tries Mr. Trump tar­geted for a 90-day halt.

The judges also said Mr. Trump in his ex­ec­u­tive or­der never jus­ti­fied his pro­posed 120-day pause in the U.S. refugee pro­gram.

“In short, the or­der does not pro­vide a ra­tio­nale ex­plain­ing why per­mit­ting en­try of na­tion­als from the six des­ig­nated coun­tries un­der cur­rent pro­to­cols would be detri­men­tal to the in­ter­ests of the United States,” the judges said.

In­deed, the judges said, just 26 peo­ple from the six tar­geted coun­tries have been con­victed of ter­ror­ism of­fenses over the past 15 years. No­body from the six coun­tries has been im­pli­cated in any fa­tal at­tacks, the judges said.

The judges pos­tu­lated a sit­u­a­tion in which some­one born in Syria but who moved to Switzer­land as a child and has lit­tle con­nec­tion with his home coun­try could be barred, while some­one born in Switzer­land who went to train with the Is­lamic State in Syria as an adult wouldn’t be au­to­mat­i­cally barred by the pol­icy.

Even more sur­pris­ing, the judges said Mr. Trump was un­able to cut the ceil­ing on the num­ber of refugees ad­mit­ted this year to 50,000, down from the 110,000 en­vi­sioned by Pres­i­dent Obama. The court said Mr. Trump didn’t show why ad­mit­ting the ex­tra 60,000 refugees would be detri­men­tal.

At­tor­ney Gen­eral Jeff Ses­sions said the 9th Cir­cuit botched the case and that re­cent at­tacks else­where show the threat to the U.S. from the Is­lamic State and al Qaeda.

“The Ex­ec­u­tive Branch is en­trusted with the re­spon­si­bil­ity to keep the coun­try safe un­der Ar­ti­cle II of the Con­sti­tu­tion,” Mr. Ses­sions said. “Un­for­tu­nately, this in­junc­tion prevents the pres­i­dent from fully car­ry­ing out his Ar­ti­cle II du­ties and has a chill­ing ef­fect on se­cu­rity op­er­a­tions over­all.”

Last week, Home­land Se­cu­rity Sec­re­tary John F. Kelly said there are con­crete steps he wants to take but can­not be­cause of the court rul­ings.

As the case heads to the Supreme Court, the le­gal ar­gu­ments are sharp­en­ing.

Groups chal­leng­ing Mr. Trump filed briefs urg­ing the high court to keep the in­junc­tion in place.

They said de­spite Mr. Kelly’s in­sis­tence, the gov­ern­ment has taken steps to tighten vet­ting, in­clud­ing ad­di­tional ques­tions the State De­part­ment asks visa ap­pli­cants and im­pos­ing a ban on lap­tops and other large elec­tronic de­vices on air­planes de­part­ing from 10 air­ports in Mus­lim-ma­jor­ity coun­tries.

The groups, led by the Amer­i­can Civil Lib­er­ties Union and the In­ter­na­tional Refugee As­sis­tance Project, urged the jus­tices to take note of Mr. Trump’s tweets last week, when he com­plained that his at­tor­neys were botch­ing the case and said he wished they in­stead had de­fended his Jan­uary ex­ec­u­tive or­der rather than the “wa­tered down, po­lit­i­cally cor­rect” ver­sion he is­sued in March.

The 9th Cir­cuit also took note of the pres­i­dent’s Twit­ter post­ings last week — par­tic­u­larly one in which he de­fended his pol­icy as a “travel ban” aimed at “cer­tain dan­ger­ous coun­tries.”

The judges said that made clear Mr. Trump was sin­gling out na­tions, rather than in­di­vid­u­als — mak­ing it a vi­o­la­tion of law.


Pres­i­dent Trump was hit by his own Twit­ter posts by judges rul­ing on his travel ban. In a unan­i­mous de­ci­sion, a three-judge panel of the 9th U.S. Cir­cuit Court of Ap­peals said his rea­son­ing was lack­ing.

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