February 9, 2017

BYRON YORK: A fact-free debate on Trump’s executive order.

Perhaps the most remarkable thing about the 9th Circuit oral argument over President Trump’s executive order was that lawyers for both sides seemed to know nothing about some of the most basic real-world issues surrounding the case. Two examples:

First, the question of terror-related crimes committed by people who come from the seven nations covered by the Trump order. Many of the president’s adversaries have claimed that no terror-related crimes have been committed by nationals of the affected countries — Libya, Somalia, Sudan, Yemen, Syria, Iraq, and Iran. “The various people who have, in fact, committed terrorist acts in this country, from 9/11 on, none of them came from any of the seven countries that are the subject of the president’s executive order,” New York Democratic Rep. Jerrold Nadler said on CNN Jan. 28.

Even James Robart, the judge on the U.S. District Court for the Western District of Washington State who temporarily stopped the Trump order, believed the talking point.

“How many arrests have there been of foreign nationals for those seven countries since 9/11?” Robart asked a Justice Department lawyer in court on Feb. 3. When the lawyer said she didn’t know, Robart said, “Let me tell you. The answer to that is none, as best I can tell.”

It turns out the judge, and Nadler, and everybody else repeating the talking point had it wrong. Last year the Senate Judiciary Subcommittee on Immigration and the National Interest released information showing that at least 60 people born in the seven countries had been convicted — not just arrested, but convicted — of terror-related offenses in the United States since Sept. 11, 2001. And that number did not include more recent cases like Abdul Artan, a Somali refugee who wounded 11 people during a machete attack on the campus of Ohio State University last November.

So the talking point wasn’t true. And yet at the 9th Circuit oral argument, the judges appeared to believe it was true, and Justice Department lawyer August Flentje didn’t know enough to correct them. . . .

The other example of the lawyers’ lack of knowledge comes from the other side — Washington State Solicitor General Noah Purcell. It concerns another basic question in the executive order debate — whether the order is somehow a “ban” on Muslims. That is not only at the heart of Washington State’s case but has also been a staple of discussion about the Trump order. Yet when Judge Clifton quizzed Purcell, he appeared to know nothing.

“Let me ask you about the, I’ll call this religious discrimination claim,” Clifton said to Purcell. “To reach both the equal protection and Establishment Clause claims, and I’m not entirely persuaded by the argument if only because, the seven countries encompass only, I think a relatively small percentage of Muslims. Do you have any information as to what percentage or what proportion of the adherence to Islam worldwide are citizens or residents of those countries? My quick penciling suggests it’s something less than fifteen percent.” [The actual figure is about 12 percent, according to Pew Research.]

“I have not done that math, your honor,” Purcell said.

“I have trouble understanding why we’re supposed to infer religious animus when in fact the vast majority of Muslims would not be affected as residents of those nations,” Clifton said. “And where the concern for terrorism with those connected with radical Islamic sects are sort of hard to deny.”

Purcell argued that, according to the law, Washington State does not need to prove that the Trump order would harm every Muslim. “We just need to prove that it was motivated in part by a desire to harm Muslims,” he said.

“How do you infer that desire if in fact the vast majority of Muslims are unaffected?” Clifton asked.

Because it’s Trump and everyone knows he’s super-eevvill. It says so right on NPR.

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