On Monday, May 15, a three-judge panel of the Court of Appeals for the Ninth Circuit heard arguments in the government's appeal of a preliminary injunction issued by a Hawaii federal district court judge of sections 2 and 6 of Executive Order 13,780, "Protecting the Nation from Foreign Terrorist Entry into the United States". As Fox News reported, the panel was "skeptical" of the government's position. The case shows the dangers that ensue when courts fail to see the whole picture and rely on false assumptions.
Both sides in the case were well represented. The government/appellant's attorney was the Department of Justice's top courtroom lawyer, Acting Solicitor General (SG) Jeffrey Wall, while the plaintiffs/appellees in the matter (the State of Hawaii and Dr. Ismail Elshikh) were represented by former Acting Solicitor General Neal Katyal.
There are several different legal issues at play in the case, but all focus on one issue: What motivated President Donald Trump in issuing that executive order?
In the law, we often talk about "loaded questions", that is "a question that contains a controversial or unjustified assumption (e.g., a presumption of guilt)". The classic example of a loaded question is "Have you stopped beating your wife?" Absent other evidence, the question makes an assumption (that you beat your wife) that has only two answers, neither of which reflects well on the person being questioned — either I used to beat my wife, but stopped, or I have not stopped beating my wife.
The questioning from the Ninth Circuit seemed to focus on a similar question: Has President Trump stopped hating Muslims? Understanding how the court got to this point requires some background, however.
On January 27, 2017, President Trump issued Executive Order 13,769, which was also captioned "Protecting the Nation from Foreign Terrorist Entry into the United States". On February 3, 2017, a federal district court judge in the Western District of Washington issued a temporary restraining order (TRO) that prevented the government from enforcing sections 3(c), 5(a), 5(b), 5(c), and (in part) 5(e) of that executive order. On February 9, 2017, the Ninth Circuit in Washington v. Trump denied the government's motion for an emergency stay of that TRO. The Ninth Circuit denied that motion on due process grounds, holding:
The Government has not shown that the Executive Order provides what due process requires, such as notice and a hearing prior to restricting an individual's ability to travel. Indeed, the Government does not contend that the Executive Order provides for such process. Rather, in addition to the arguments addressed in other parts of this opinion, the Government argues that most or all of the individuals affected by the Executive Order have no rights under the Due Process Clause.
Significantly, the court stated that:
[E]ven if the TRO might be overbroad in some respects, it is not our role to try, in effect, to rewrite the Executive Order. ... The political branches are far better equipped to make appropriate distinctions. For now, it is enough for us to conclude that the Government has failed to establish that it will likely succeed on its due process argument in this appeal.
Accepting the court's apparent invitation to rewrite the executive order, on March 6, 2017, the president issued the new executive order. As the government stated in its brief in the latest action:
Among many other changes, the Order expressly excludes lawful permanent residents and foreign nationals present in the United States. The Order applies only to foreign nationals outside the United States who lack a visa—individuals who "ha[ve] no constitutional rights regarding" their admission. Even then, the Order temporarily suspends only (i) the entry of certain foreign nationals from six countries that Congress and the Executive previously determined pose a heightened terrorism risk and (ii) the processing of refugee applications and travel of refugees not yet admitted—all subject to a waiver process to mitigate any undue hardship.
Those entry and refugee suspensions apply for a short period, to enable the President and his Cabinet to review current screening procedures to ensure that they adequately detect potential terrorists. (Citations omitted.)
Specifically, section 2 of the new executive order suspended the entry of nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen for 90 days, subject to a number of limitations, waivers, and exceptions. The reason for that suspension was to enable:
The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, [to] conduct a worldwide review to identify whether, and if so what, additional information will be needed from each foreign country to adjudicate an application by a national of that country for a visa, admission, or other benefit under the [Immigration and Nationality Act (INA)] in order to determine that the individual is not a security or public-safety threat
Why those six countries? The executive order listed security concerns related to each, and the president concluded that "in light of" those concerns that a 90-day suspension was appropriate.
In addition, section 6 of the executive order suspended decisions on applications for refugee status and the travel of refugees into the United States for 120 days, in order to allow:
[T]he Secretary of State, in conjunction with the Secretary of Homeland Security and in consultation with the Director of National Intelligence, [to] review the [U.S. Refugee Admissions Program (USRAP)] application and adjudication processes to determine what additional procedures should be used to ensure that individuals seeking admission as refugees do not pose a threat to the security and welfare of the United States, and [to] implement such additional procedures
On February 3, 2017, the State of Hawaii filed a complaint in the federal District Court for the District of Hawaii requesting an injunction of the first executive order. In February 2017, in light of the injunction in the Western District of Washington, the Hawaii court entered an order staying proceedings in that case. That stay was lifted on March 8, 2017, in light of the issuance of the new executive order.
On March 8, the state of Hawaii, now joined by Ismail Elshikh, PhD, the imam of the Muslim Association of Hawaii, filed a second amended complaint with the Hawaii federal District Court. As it stated:
The State of Hawai'i (the "State") brings this action to protect its residents, its employers, its educational institutions, and its sovereignty against illegal actions of President Donald J. Trump and the federal government, specifically: President Trump's March 6, 2017 Executive Order, "Protecting the Nation From Foreign Terrorist Entry into the United States" (the "Executive Order").
Plaintiff Ismail Elshikh, PhD, the Imam of the Muslim Association of Hawai'i, joins the State in its challenge because the Executive Order inflicts a grave injury on Muslims in Hawai'i, including Dr. Elshikh, his family, and members of his Mosque
That complaint requested that the government be enjoined from implementing or enforcing sections 2 and 6 of the new executive order.
On March 15, 2017, the court issued a TRO, enjoining the government from enforcing or implementing sections 2 and 6 of the new executive order. The court concluded that Hawaii had standing to bring suit, holding that Hawaii:
[H]as preliminarily demonstrated that: (1) its universities will suffer monetary damages and intangible harms; (2) the State's economy is likely to suffer a loss of revenue due to a decline in tourism; (3) such harms can be sufficiently linked to the Executive Order; and (4) the State would not suffer the harms to its proprietary interests in the absence of implementation of the Executive Order
With respect to Dr. Elshikh, the court held that he had standing to assert an Establishment Clause violation, in part because he was "deeply saddened by the message that [both executive orders] convey — that a broad travel-ban is 'needed' to prevent people from certain Muslim countries from entering the United States." Having made that finding, the court granted the TRO, finding:
Because a reasonable, objective observer—enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance — would conclude that the Executive Order was issued with a purpose to disfavor a particular religion, in spite of its stated, religiously-neutral purpose, the Court finds that Plaintiffs, and Dr. Elshikh in particular, are likely to succeed on the merits of their Establishment Clause claim.
In this context, the "Establishment Clause" refers to the first provision in the First Amendment to the Constitution, which states: "Congress shall make no law respecting an establishment of religion ..." It is one of two provisions in the First Amendment addressing religion, the second being the "Free Exercise Clause". In essence, the Establishment Clause "prohibits the government from 'establishing' a religion."
The court admitted that the new executive order "does not facially discriminate for or against any particular religion, or for or against religion versus non-religion." It concluded, however: "The record before this Court ... includes significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor," and that therefore it is likely violative of the Establishment Clause, justifying the TRO.
In reaching this conclusion, the court looked to the statements of then-candidate and now-President Donald Trump. For example, the court referenced the following from the Second Amended Complaint, which reference in turn quotes from "Anderson Cooper 360 Degrees: Exclusive Interview With Donald Trump":
In March 2016, Mr. Trump said, during an interview, "I think Islam hates us." Mr. Trump was asked, "Is there a war between the West and radical Islam, or between the West and Islam itself?" He replied: "It's very hard to separate. Because you don't know who's who."
In that same interview, Mr. Trump stated: "But there's a tremendous hatred. And we have to be very vigilant. We have to be very careful. And we can't allow people coming into this country who have this hatred of the United States ... [a]nd of people that are not Muslim." (Citations omitted).
The court also referred to a December 7, 2015 campaign press release, which states: "Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States," as well as statements from Rudolph Giuliani and Senior Presidential Adviser Steven Miller in concluding:
These plainly worded statements, made in the months leading up to and contemporaneous with the signing of the Executive Order, and, in many cases, made by the Executive himself, betray the Executive Order's stated secular purpose. Any reasonable, objective observer would conclude, as does the Court for purposes of the instant Motion for TRO, that the stated secular purpose of the Executive Order is, at the very least, "secondary to a religious objective" of temporarily suspending the entry of Muslims
Notably, however, the court asserted that its "preliminary determination [does not] foreclose future Executive action": "Here, it is not the case that the Administration's past conduct must forever taint any effort by it to address the security concerns of the nation."
The court is not clear, however, about what steps the president could take in order to remove the "taint" the court ascribed to his actions. Reference was made to this in the May 15 argument before the Ninth Circuit, however. Specifically, Judge Michael Hawkins asked the SG:
Has the president ever disavowed his campaign statements? Has he ever stood up and said, I said before I wanted to ban all members of the Islamic faith from entering the United States of America, I was wrong, I'm now addressing it simply to security needs?
In response, the SG stated: "Yes, Judge Hawkins, he has said several things approaching that ... I think that's detailed in various amicus briefs." In reply, Katyal asserted: "I thought [the SG's] answer was surprising because he couldn't actually point to any disavowal. He just cited en masse amicus briefs because the truth is there is no such statement."
In essence, the court appears to be asking the president a loaded question: "Have you stopped hating Muslims?" A review of the record as a whole, however, reveals that the animus identified by the district court judge is less clear than the court's description of the record would suggest.
Significant concerns began to be raised about terrorist exploitation of our immigration system following the Paris attacks organized by ISIS on November 13, 2015, which "left 130 people dead and hundreds wounded, with more than 100 in a critical condition." In the aftermath of that attack, press reports stated that "[a]t least one Syrian refugee who had recently entered Europe was among the ... terrorists who carried out" that attack.
Less than three weeks after that attack, on December 2, 2015, Syed Rizwan Farook and his wife, Tashfeen Malik, killed 14 people who were attending a holiday party at the Inland Regional Center in San Bernardino, Calif.. The fact that Malik had been born in Pakistan, moved to Saudi Arabia, and entered the United States on a K-1 fiancée visa raised new concerns about the vulnerability of our immigration system. Those concerns were further enhanced by then-President Barack Obama's assertion that Malik had entered the United States under the visa-waiver program, which he had ordered a review of.
In response to these concerns, congressional hearings were quickly convened to assess the terrorist vulnerabilities of our immigration system (including two within one week in December 2015 by the House Oversight and Government Reform Committee, where I was serving as National Security Subcommittee Staff Director). Congress and the president quickly drafted "legislation [to] slap new travel restrictions on foreign visitors to the U.S. who have recently been to Syria, Iraq, Iran or Sudan." As the Los Angeles Times reported at the time:
The surprising coalescence around the need to toughen the visa-waiver program marked a rapid turnaround from just two weeks ago. Following the Paris terror attacks, House Republicans, with support from some House Democrats, quickly passed a bill that would have effectively blocked all Syrian refugees from entering the U.S. But after Senate Democrats panned the bill, House GOP leaders almost immediately began refocusing their efforts on the visa-waiver program
It was in this context, on December 7, 2015, that then-candidate Trump issued his "Statement on Preventing Muslim Immigration", referenced by the District Court.
Trump alluded to the Paris and San Bernardino attacks in his exchange with Anderson Cooper, to which the district court, again, referred as well:
COOPER: Do you think Islam is at war with the west?
TRUIMP: I think Islam hates us. There is something — there is something there that is a tremendous hatred there. There's a tremendous hatred. We have to get to the bottom of it. There's an unbelievable hatred of us.
COOPER: In Islam itself?
TRUMP: You're going to have to figure that out. OK. You'll get another Pulitzer, right? But you'll have to figure that out. But there's a tremendous hatred. And we have to be very vigilant. We have to be very careful. And we can't allow people coming into this country who have this hatred of the United States.
COOPER: I guess the question is ...
TRUMP: And of people that are not Muslim.
COOPER: I guess the question is, is there a war between the west and radical Islam or between the west and Islam itself?
TRUMP: Well, it's radical but it's very hard to define. It's very hard to separate because you don't know who is who.
Look, these two young people that got married, she supposedly radicalized him. Who knows what happened?
COOPER: The San Bernardino killer?
TRUMP: The bottom line is they killed 14 people. They gave them baby showers. I mean, they were friends of theirs and they walked in and they killed them. There's unbelievable hatred.
You look at Paris, 138 people killed. Many, many people are going to die in the hospital. Mortally wounded, horribly wounded, horribly wounded. And they walk into a room and boom, boom, boom. There's a sickness going on that's unbelievable. And honestly, you have to get to the bottom of it. (Emphasis added.)
On this as on many other issues, the president has not been as eloquent or precise in his use of language as one (or one's lawyer) would hope. In context, however, the president's language reflects more frustration with the United States government's inability to differentiate between bona fide travelers to the United States and terrorists seeking to do harm than animus toward Islam.
His analysis of this issue became more refined as time went on, as the plaintiffs in the Hawaii case admitted in their second amended complaint:
Later, as the presumptive Republican nominee, Mr. Trump began using facially neutral language, at times, to describe the Muslim ban. Following the mass shootings at an Orlando nightclub in June 2016, Mr. Trump gave a speech promising to "suspend immigration from areas of the world where there's a proven history of terrorism against the United States, Europe or our allies until we fully understand how to end these threats."
Interestingly, that complaint continues:
But he continued to link that idea to the need to stop "importing radical Islamic terrorism to the West through a failed immigration system." He said that "to protect the quality of life for all Americans—women and children, gay and straight, Jews and Christians and all people then we need to tell the truth about radical Islam." And he criticized Hillary Clinton for, as he described it, "her refusal to say the words 'radical Islam,'" stating: "Here is what she said, exact quote, 'Muslims are peaceful and tolerant people, and have nothing whatsoever to do with terrorism.' That is Hillary Clinton." Mr. Trump further stated that the Obama administration had "put political correctness above common sense," but said that he "refuse[d] to be politically correct."
The idea that a "failed immigration system" had led to the "import[ation of] radical Islamic terrorism to the West" is unexceptional, and in fact was the concern behind the visa waiver bill referenced above, the "Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015," which was eventually passed as part of the Consolidated Appropriations Act of 2016.
Nor is the idea that additional vetting should be applied to aliens from certain countries that are in conflict, or that are failed states. Vetting of visa applicants is only as good as the information by which an alien's name and statements can be verified. For example, as former FBI Director James Comey stated concerning the vetting of Syrian refugees in testimony before the House Homeland Security Committee on October 21, 2015:
We can only query against that which we have collected. And so if someone has not made a ripple in the pond in Syria on a way that would get their identity or their interests reflected in our databases, we can query our databases until the cows come home but nothing will show up because we have no record of that person . . . You can only query what you have collected. And with respect to Iraqi refugees, we had far more in our databases because of our country's work there for a decade. [The case of vetting Syrian refugees] is a different situation
Security and vetting concerns related to the six countries for which the new executive order suspends entry for 90 days are set forth that executive order itself. Specifically, it states at section 1(e):
The following are brief descriptions, taken in part from the Department of State's Country Reports on Terrorism 2015 (June 2016), of some of the conditions in six of the previously designated countries that demonstrate why their nationals continue to present heightened risks to the security of the United States:
(i) Iran. Iran has been designated as a state sponsor of terrorism since 1984 and continues to support various terrorist groups, including Hizballah, Hamas, and terrorist groups in Iraq. Iran has also been linked to support for al-Qa'ida and has permitted al-Qa'ida to transport funds and fighters through Iran to Syria and South Asia. Iran does not cooperate with the United States in counterterrorism efforts.
(ii) Libya. Libya is an active combat zone, with hostilities between the internationally recognized government and its rivals. In many parts of the country, security and law enforcement functions are provided by armed militias rather than state institutions. Violent extremist groups, including the Islamic State of Iraq and Syria (ISIS), have exploited these conditions to expand their presence in the country. The Libyan government provides some cooperation with the United States' counterterrorism efforts, but it is unable to secure thousands of miles of its land and maritime borders, enabling the illicit flow of weapons, migrants, and foreign terrorist fighters. The United States Embassy in Libya suspended its operations in 2014.
(iii) Somalia. Portions of Somalia have been terrorist safe havens. Al-Shabaab, an al-Qa'ida-affiliated terrorist group, has operated in the country for years and continues to plan and mount operations within Somalia and in neighboring countries. Somalia has porous borders, and most countries do not recognize Somali identity documents. The Somali government cooperates with the United States in some counterterrorism operations but does not have the capacity to sustain military pressure on or to investigate suspected terrorists.
(iv) Sudan. Sudan has been designated as a state sponsor of terrorism since 1993 because of its support for international terrorist groups, including Hizballah and Hamas. Historically, Sudan provided safe havens for al-Qa'ida and other terrorist groups to meet and train. Although Sudan's support to al-Qa'ida has ceased and it provides some cooperation with the United States' counterterrorism efforts, elements of core al-Qa'ida and ISIS-linked terrorist groups remain active in the country.
(v) Syria. Syria has been designated as a state sponsor of terrorism since 1979. The Syrian government is engaged in an ongoing military conflict against ISIS and others for control of portions of the country. At the same time, Syria continues to support other terrorist groups. It has allowed or encouraged extremists to pass through its territory to enter Iraq. ISIS continues to attract foreign fighters to Syria and to use its base in Syria to plot or encourage attacks around the globe, including in the United States. The United States Embassy in Syria suspended its operations in 2012. Syria does not cooperate with the United States' counterterrorism efforts.
(vi) Yemen. Yemen is the site of an ongoing conflict between the incumbent government and the Houthi-led opposition. Both ISIS and a second group, al-Qa'ida in the Arabian Peninsula (AQAP), have exploited this conflict to expand their presence in Yemen and to carry out hundreds of attacks. Weapons and other materials smuggled across Yemen's porous borders are used to finance AQAP and other terrorist activities. In 2015, the United States Embassy in Yemen suspended its operations, and embassy staff were relocated out of the country. Yemen has been supportive of, but has not been able to cooperate fully with, the United States in counterterrorism efforts
There is no question that Iran is hostile to American interests and would logically attempt to subvert U.S. national security safeguards. Vast portions of Libya, Syria, and Yemen are currently warzones. Somalia has been in a state of chaos since at least 1991. And, as Amnesty International states with respect to Sudan: "The authorities continued to refuse to execute five arrest warrants issued by the [International Criminal Court (ICC)] for Sudanese nationals, including two warrants for President al-Bashir on charges of genocide, crimes against humanity and war crimes allegedly committed in Darfur."
Finally, the president's use of the term "radical Islam" does not appear to be a slur on the religion itself, but rather shorthand for Islamic fundamentalist extremists, or religiously inspired terrorists.
In his Order Granting Motion to Convert Temporary Restraining Order to a Preliminary Injunction, the district court judge rejects the government's argument that he should "afford the President deference in the national security context and should not 'look behind the exercise of [the President's] discretion' taken 'on the basis of a facially legitimate and bona fide reason,'" asserting: "The Court will not crawl into a corner, pull the shutters closed, and pretend it has not seen what it has." Unfortunately, what the court has seen does not appear to be the full picture.
This case shows the difficulties that ensue when courts attempt to substitute their national security judgments for those of the other branches. Were the stakes not so high, it would just be an interesting thought experiment. History has shown, however, in recent years throughout the Western world, from Paris in November 2015, to San Bernardino in December 2015, to Brussels in March 2016, to Atatürk Airport in June 2016, to Nice in July 2016, to Berlin in December 2016, that terrorists are willing to exploit vulnerabilities to kill innocent people. The Ninth Circuit should consider this when it makes its decision.