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Court Refuses to Reinstate Trump's Muslim Ban, Says "No Evidence" of Attacks from 7 Listed Countries

StoryFebruary 10, 2017
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Vincent Warren

executive director of the Center for Constitutional Rights.


In a major victory for civil rights advocates, the U.S. Ninth Circuit Court of Appeals has unanimously refused to reinstate Donald Trump’s executive order that banned people from seven Muslim-majority countries from entering the United States and sparked nationwide protests. The judges ruled that the administration "has pointed to no evidence that any alien from any of the countries named in the order has perpetrated a terrorist attack in the United States." Trump has vowed to appeal the case, possibly to the U.S. Supreme Court. We get reaction from Vincent Warren, executive director of the Center for Constitutional Rights. "It is the veracity of the administration that is at stake," Warren says.


TRANSCRIPT
This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: A three-judge panel on the Ninth U.S. Circuit Court of Appeals has unanimously refused to reinstate President Trump’s executive order temporarily banning people from seven Muslim-majority countries from entering the United States. The ruling came less than two weeks after Trump signed the order, which sparked protests across the country. The judges wrote, quote, "The government has pointed to no evidence that any alien from any of the countries named in the order has perpetrated a terrorist attack in the United States." The judges went on to say, "Rather than present evidence to explain the need for the Executive Order, the government has taken the position that we must not review its decision at all."

President Trump responded first on Twitter by writing a message in all caps reading: "SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!" Trump later briefly spoke to reporters at the White House.

PRESIDENT DONALD TRUMP: It’s a political decision. We’re going to see them in court, and I look forward to doing it.

REPORTER: So you believe the judges made a political decision.

PRESIDENT DONALD TRUMP: We have a situation where the security of our country is at stake. And it’s a very, very serious situation. So we look forward, as I just said, to seeing them in court.

REPORTER: Sir, can I—

HANDLER: Thanks, guys.

REPORTER: Do you think this has undercut—

HANDLER: Thanks, guys.

REPORTER: —the early days of your presidency? This is such a core issue.

PRESIDENT DONALD TRUMP: No, this is just a decision that came down. But we’re going to win the case.

AMY GOODMAN: The ruling was a major victory for the state of Washington, which took Trump to court. Washington state Attorney General Bob Ferguson called the ruling a victory for the U.S. Constitution.

ATTORNEY GENERAL BOB FERGUSON: We’ve seen him in court twice, and we’re two for two. That’s number one. And in my view, the future of the Constitution is at stake. That’s at stake, as well. And, look, we respect that the president has broad authority when it comes to issuing executive orders. But—but they still have to follow the Constitution. The president does have a choice: He can continue to fight this, or he can tear up this executive order and start over. I would strongly encourage him to consider the latter course of action.

AMY GOODMAN: The Trump administration now has 14 days to ask the full Ninth Circuit to review the decision or appeal directly to the U.S. Supreme Court. Trump could also rewrite the executive order. Washington state Solicitor General Noah Purcell, who argued the case, welcomed the court’s decision.

SOLICITOR GENERAL NOAH PURCELL: What we argued to the court yesterday was that it’s the role of the courts to say what the law is and to serve as a check on the executive branch. And that’s what the court has done in this opinion, in this excellent opinion, this well-reasoned, careful, thoughtful opinion, that seriously considered all the government’s arguments and rejected them. ... This is not a partisan issue, the idea that the government does not get to just say that something is in the national security interest without sort of having to back that up in any way when they’re violating people’s rights.

AMY GOODMAN: Well, for more, we’re joined by Vince Warren. He’s the executive director of the Center for Constitutional Rights.

Welcome to Democracy Now!

VINCENT WARREN: Thank you.

AMY GOODMAN: The significance of this decision that came down last night, Vince?

VINCENT WARREN: It’s an extraordinary, extraordinary decision. This is what we were hoping for, where, in light of President Trump trying to jam through all of these ill-considered, atrocious, unwarranted executive orders, we were trying to position the courts to have the final say on what his authority is and also the wisdom and veracity and legality of what he’s trying to do.

The court took a couple of very clear positions, which you’ve talked about, but I think they’re significant. One is that the Trump administration took the position that this order was unreviewable by any federal court anywhere. If that sounds a little bit like George Bush, it’s because it comes out of the George Bush playbook. And, in fact, when the Ninth Circuit answered that question and said, "We certainly do have the authority to review these orders of the president," they cited our case, the Center for Constitutional Rights case, Boumediene v. Bush, which went to the Supreme Court for that very principle.

The court did not take on the First Amendment claim of whether this was religious discrimination, but they really didn’t have to, and primarily because the government put forward no evidence at all that this ban was related to terrorism coming from these seven countries—as you pointed out, zero evidence of any people coming from those countries committing terrorist attacks on U.S. soil.

But what we do have evidence of is the thousands of people that were affected, negatively affected, by this order. In fact, you know, the Center for Constitutional Rights filed a challenge with the inspector general of Department of Homeland Security, where we laid out some of these horrible things that were going on. And people were brutalized, handcuffed, children handcuffed, people held without food and water for up to 18 hours, forcibly thrown back on airplanes. And, in fact, many people had been trying to see lawyers in airports around the country, and Department of Homeland Security customs and border officials refused to let them see that. And then, in a couple of cases, people were forcibly made to sign away their visa rights, that had been given by the government, in order to be deported. I mean, this is the kind of outrageous stuff that happens when this narcissistic president—

AMY GOODMAN: And what does that—what does that mean when they have to sign away their visa rights?

VINCENT WARREN: So, what happens is, is that the government—you apply for a visa. The government grants you a visa. You come into the country. You’re supposed to be able to walk through with the vetting that they have. What it actually meant was, now they’re stuck at the airport, they are in detention, and in order to deport them, the customs and border officials made them sign a document that said, "I renounce the rights that were granted to me under the U.S. government’s visa program," and that then gives them an out. So they say, "Well, now that this person has renounced their visa, we’re going to ship them back on a plane." And a number of people reported that this is what happened to them. And that’s deeply, deeply troubling.

AMY GOODMAN: And so, now, when the ban has been stayed, they can’t come back in?

VINCENT WARREN: Now that the ban has been stayed, that means that they actually can come back in.

AMY GOODMAN: Even though they waived away?

VINCENT WARREN: Well, that’s going to be—this is the—for those people, they’re going to have a problem now, because they’re going to have to apply to this government’s State Department now. I don’t think this government’s State Department is going to allow them to come back in, which is also troubling. So, it’s essentially one government lets them come back in, the other government kicks them out and then doesn’t let them come back in, even though their policy banning people from those countries is now frozen and blocked by courts.

AMY GOODMAN: During oral arguments, Justice Department lawyer August Flentje questioned the role of the court in reviewing the president’s actions.

AUGUST FLENTJE: The reason we sought immediate relief and a stay is because of the court’s—the district court’s decision overrides the president’s national security judgment about the level of risk. And we’ve been talking about the level of risk that is acceptable. As soon as we are having that discussion, it should be acknowledged that the president is the official that is charged with making those judgments. I’d also like to talk briefly—

JUDGE MICHELLE FRIEDLAND: So, are we back to—I mean, are you arguing then that the president’s decision in that regard is unreviewable?

AUGUST FLENTJE: The—uh, yes.

AMY GOODMAN: That was Tuesday night. Well, on Thursday night after the court’s ruling, Washington state Attorney [General] Bob Ferguson responded to the government’s claim.

ATTORNEY GENERAL BOB FERGUSON: Throughout this litigation, the president has asserted that his actions in signing this executive order are unreviewable. And you heard the question posed by the Ninth Circuit judges in the oral argument this week. The question was asked: "Is it the view of the Justice Department that those actions are unreviewable?" And after a rather lengthy pause, the answer was yes. Here is what the Ninth Circuit had to say about that: "There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy."

AMY GOODMAN: So that’s Washington state Attorney General Bob Ferguson responding. Vince?

VINCENT WARREN: Yeah, you know, I think the Trump administration took that position for two reasons. One, we are in the age of the ever-expanding power of the presidency. Donald Trump is not the first president to take that position. That’s happened before. The second reason why they took it is because there was no there there. They knew that if courts did review the evidence that they were putting forward, which was basically nothing, that the courts would be compelled to rule that this ban was not based on any useful evidence. You know, we have a regime of vetting visas from these seven countries, which had been heightened by Congress. And so, the courts were asking during the hearing: Well, what has changed, or what is different, that makes this type of ban, which is much more draconian—and I think also is unconstitutional—what makes—what’s the change that has made it different? And they don’t have an answer to it. So it’s a very significant view that a state has now asserted in federal court that what the president says, just because he says it, doesn’t mean that everybody has to abide by it. People can interrogate that question. It’s really significant.

AMY GOODMAN: The ruling notes, quote, "We cannot rely upon the government’s contention that the executive order no longer applies to lawful permanent residents. ... Moreover, in light of the government’s shifting interpretations of the executive order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings." Vince Warren, how do you interpret this?

VINCENT WARREN: Well, the court is sending a clear message that the evidence put forth by the government, as well as the different things that they were saying about this, you basically can’t trust it. When courts say that we can’t rely on an assertion, that essentially means that we can’t trust what you’re saying to be true, to be able to rely on it to build a ruling in your favor. What we had here is we had a blanket ban. They walked that back. Various departmental officials started issuing communiqués: "Well, the ban doesn’t apply to lawful permanent residents." The Customs and Border Patrol were throwing people that were lawful permanent residents out of the country at the same time that the administration was saying, "No, they should come in." It was complete chaos.

But I think more than that, it’s really the veracity of this administration that’s at stake. You know, John Crew, who’s a good friend of mine from the Bay Area, said that the problem isn’t so much radical Islamic terrorism; the problem is radical, narcissistic presidency. And that’s really what the courts—and we’re all feeling that. That’s what the courts are saying, that a presidency that is so erratic, that is just throwing things together, can’t possibly be the linchpin around which we’re going to build our democratic values. It has to be pushed back. They have to be sanctioned. And they were.

AMY GOODMAN: So, where does this go from here? Far be it for you to say what President Trump is going to do, but what are the paths he can take right now? He said, "See you in court."

VINCENT WARREN: Yeah. There are a couple of paths that he can take. One path is that when they move for the emergency order to get rid of the block of the ban, they also filed an appeal in the Ninth Circuit Court of Appeals. So what he could do is he could continue to argue that appeal in the Ninth Circuit. Now, what that means—

AMY GOODMAN: The complete Ninth Circuit.

VINCENT WARREN: The complete Ninth Circuit. What that means—

AMY GOODMAN: Which is what? Like 27, 28 judges?

VINCENT WARREN: It’s a very large number of judges. And it’s also what you have to apply for to get that kind of hearing. That process can take a long time. And while that’s happening, the ban is still in effect [sic]. He’s also running the risk of losing again and—

AMY GOODMAN: The ban is not in effect.

VINCENT WARREN: I’m sorry, that the ban is not in effect.

AMY GOODMAN: Right.

VINCENT WARREN: And that the stay is still in effect, so that he runs the risk of not having that ban in play during that whole period. He can take the case directly to the Supreme Court. You know, I’m not a betting man particularly when it comes to this president, but that seems like—if you’re tweeting in all caps, "SEE YOU IN COURT," that sounds like it might be where it’s going. They can go to the Supreme Court, and the Supreme Court can hear the case and decide whether it wants to overturn the decision or not. Eventually, the case will go back—if he loses the case, goes back down to the district court, where they have an actual hearing with evidence on a—

AMY GOODMAN: The district court is Judge Robart.

VINCENT WARREN: Judge Robart in Seattle, where they will have a hearing on the preliminary injunction. And that’s a determination as to the temporary stay that the judge put on the ban. It’s a hearing as to whether that should go for longer. So there are a number of options. It’s hard to say where they’re going to go. But it’s clear that the administration is on the back foot here.

AMY GOODMAN: That’s involving this case. There are other cases in courts, like one in Virginia, in Massachusetts. What happens with those?

VINCENT WARREN: Well, those cases are also proceeding. And I think what is happening now is that those courts are likely waiting to see what happens here, because Judge Robart put a blanket stay on the ban. That covers the entire country. The government was arguing that it was too broad. But right now, there is a stay in the entire country. So other courts are waiting to see what happens. If it turns out that this stay from Judge Robart gets overturned for some reason, other courts can move in with different theories, with different sets of facts, and we might be able to—we might be able to see this all over again in different courts.

AMY GOODMAN: What about Donald Trump’s comments about the judges, calling Robart a "so-called judge," and then, in the midst of these proceedings, as the three judges are deliberating, talking about the proceedings as being disgraceful, and now we hear—at least CNN reported—that at least one judge needs hyped-up security—needs more security because of threats?

VINCENT WARREN: It’s troubling and it’s disgraceful that the president of the United States can’t abide by a process, a democratic process, that’s been around in this country for over 200 years. It also, frankly, smacks of authoritarianism. When you look back at regimes that have come to power, one of the things that they do is they try to make people afraid. So this whole Muslim terrorism thing is a tool to get people to be afraid. The next thing they do is they attack the press. The next thing that they do is they attack the courts. That’s what we’re seeing here. And, you know, this isn’t over a 30-year regime. This is over 21 days we’re seeing this. This is really problematic. And again, the biggest threat that we have right now is how this president operates within our democratic principles.

AMY GOODMAN: And the reports that Judge Gorsuch said, in speaking to not only Connecticut—a Connecticut senator, Connecticut Senator Blumenthal, but others, Republican and Democrat, talking about the attacks on judges as being "demoralizing" and "disheartening," it’s not—although President Trump said this was a lie, that this was misinformation, and so did his press spokesperson, Sean Spicer, Gorsuch’s own transition team guide said he made these comments.

VINCENT WARREN: Yeah, that’s—I mean, it’s significant for a couple of reasons. One, I am not a big fan of Neil Gorsuch. If Neil Gorsuch gets confirmed and goes to the Supreme Court, it’s going to be a lot of bad news for the things that we care about. Nonetheless, one of the things about almost all federal judges, and particularly conservative judges, that they do have a sense of decorum and process. And we found this in the Bush administration when we were doing our cases on Guantánamo. There were certain things that even conservative judges can’t abide. Unfortunately, they care—they tend to care less about people’s bodies and people’s lives, whether they go to jail or they’re trying to get abortions, but they care more about the decorum of the democratic principles and the role of the judiciary. So I’m not surprised that Neil Gorsuch said those things or feels those things. And frankly, as we go through the four years, even no matter what number of Republican judges that the administration puts in, he’s going to have this problem.

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