Do we just have to take the President's word that a foundational report behind the travel ban justifies the executive order? Having the judge review the report without disclosing it publicly might be a solution.
President Donald Trump says those challenging the latest version of his travel ban in court can’t see a report explaining why he targeted immigrants from seven nations because it’s secret.
The government on Friday told a Hawaii federal judge who demanded disclosure of the report that it’s classified and should remain off-limits as evidence in the court battle. That judge blocked a previous version of the president’s immigration restrictions amid a fierce debate over national security and discrimination.
Justice Department lawyers said they’d reluctantly provide a copy of the Secretary of Homeland Security’s Sept. 15 report to be viewed privately by the judge “in a secure location.” But they said the judge shouldn’t review the document because the government won’t be relying on it to defend the travel ban.
The government lawyers said prior court rulings establish that judges can’t “look behind” public proclamations by presidents about matters of foreign policy and national security. They quoted from a 1999 U.S. Supreme Court case: “The Executive should not have to disclose its ‘real’ reasons for deeming nationals of a particular country a special threat.”
Trump’s decree would unconditionally suspend entry to all people traveling to the U.S. from Syria and North Korea and bar many coming from Chad, Iran, Libya, Somalia, Venezuela and Yemen. He concluded that the governments of those nations couldn’t provide the U.S. with assurance their citizens don’t pose safety threats to the U.S.
The president referenced the homeland security report in a proclamation accompanying the revised policy he issued Sept. 24. He said the report recommended limiting entry to certain people from seven nations, while his executive order targets eight countries.
“According to the report, the recommended restrictions would help address the threats that the countries’ identity-management protocols, information-sharing inadequacies, and other risk factors pose to the security and welfare of the United States,” the president said in the proclamation.
Hawaii Attorney General Doug Chin said the president hasn’t provided an adequate justification for the restrictions he’s imposing.
“If a foreign government does not provide information necessary to determine whether a national of that country is a terrorist, immigration officers can deny entry to that individual,” Chin, a Democrat, said in an Oct. 10 court filing. “There is no logical reason why an additional, blanket ban is warranted to exclude such individuals.”
James Walther, a spokesman for Chin, declined to comment on the Friday filing.
The president’s edict is set to take effect Wednesday if it’s not blocked by a court order, as happened with two previous versions of the travel ban before the Supreme Court finally allowed modified restrictions to take effect from June to September.
There have been at least six legal challenges to the latest ban. As with with the earlier versions, the central question will be whether animosity towards Muslims is a reason for the executive order.
Some legal experts have said that because the new restrictions aren’t focused exclusively on Muslim-majority nations, immigration advocates will have a tougher time persuading judges to block it.
U.S. District Judge Derrick Watson in Honolulu, who ordered the Trump administration to file the homeland security report, halted the second version of the president’s travel ban before it could be enforced.
In March, Watson, appointed by Democratic President Barack Obama, dismissed the Justice Department’s contention the travel restrictions were constitutional because they only applied to some countries. Even after the government had revised the original restrictions issued in January, Watson wasn’t convinced that the rewritten ban was free of religious discrimination.
“The illogic of the government’s contentions is palpable,” Watson wrote. “The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed.”
The case is State of Hawaii v. Trump, 17-cv-00050, U.S. District Court, District of Hawaii (Honolulu).
–With assistance from Edvard Pettersson
©2017 Bloomberg L.P.
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Photo Credit: A woman pulls luggage as travelers stand in a security line at LaGuardia Airport in New York. A Hawaii judge is considering a challenge to Trump's third travel ban. Davi Williams / Bloomberg
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