Virginia judge blasts Trump travel ban, cites lack of evidence of any threats
ALEXANDRIA, Va. — A Virginia federal judge offered a blistering critique of the Trump administration's travel ban on Friday, citing a "startling" lack of evidence that travelers from the seven Muslim-majority countries represented a specific national security threat.
U.S. District Judge Leonie Brinkema did not immediately rule on a request for a nationwide preliminary injunction blocking enforcement of President Trump's disputed executive order, but she characterized its language as overly "broad and imprecise."
Brinkema's remarks during a packed hearing here come a day after a federal appeals court left in place a separate order that effectively suspends Trump's travel ban.
During the hourlong hearing, Brinkema highlighted statements from a group of former top national security officials of both parties who said that they were "unaware of any specific threat" posed by travelers from the designated countries. They also suggested that the administration's order could "undermine the national security of the United States."
"I don't have a scintilla of evidence that counters this argument," Brinkema said, directing her remarks to government lawyers.
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Erez Reuveni, a senior Justice Department counsel, acknowledged that the government had not included such evidence in its presentation but he said Virginia authorities had not offered "proof of actual harm'' to any large class of travelers to support its broad request for an injunction.
Asked about the possible implications of Thursday night's separate ruling by a three-judge panel of he U.S. Court of Appeals for 9th Circuit and how the government might respond, Reuveni said "all options are being considered across the spectrum,'' including an appeal to the U.S. Supreme Court.
In the Virginia case, Reuveni contended that state authorities had offered no argument to suggest that immigrants or other travelers were at risk of any immediate harm as a result of the order, indicating that case focused on less than a handful of people.
But Virginia Solicitor General Stuart Raphael told Brinkema that there potentially hundreds, perhaps more than a thousand, of students and faculty members already in the United States who would be unable to leave the country because of the order's restraints on re-entering the country.
Brinkema, however, focused her questioning on the apparent lack of a specific threat that might validate the president's order. "The courts are begging you to give us information to support this order, and none has been forthcoming,'' Brinkema said, adding that the federal courts have a long engaged in reviews of sensitive information related to national security.
Brinkema presided in the 2006 trial of 9/11 conspirator Zacarias Moussaoui, a case that featured the review of highly classified information. More recently, she oversaw the case of former CIA officer Jeffrey Sterling who was convicted in 2015 of leaking classified information to a journalist.
On Friday, the judge assailed the language of the Trump administration executive order, saying that "on the surface, it looks legitimate. But when you look behind it, there are all kinds of weaknesses in it.''
Reuveni contended that the president was acting well within broad executive authority extending to immigration matters.
The current legal conflict, the government lawyer said, "puts the president in an untenable position.''
At one point, Reuveni made reference to the Obama administration's imposition of travel restrictions placed on visitors from West Africa following the deadly outbreak of Ebola in 2014. At that time, travelers from the affected countries were directed to designated U.S. airports equipped with screening technology.
"Give me the evidence of the Ebola outbreak here,'' the judge said.
Brinkema said there was no immediate need to rule on the Virginia request because of the action by the appeals court Thursday.
In that case, the three-judge panel found that the plaintiffs — the states of Washington and Minnesota — showed that the ban may violate the due-process rights of foreigners who had valid visas and green cards, as well as those in the country illegally. The judges also said "serious allegations'' about religious discrimination against Muslims raised "significant constitutional questions,'' requiring a full airing in a trial court.
Karen Tumlin, legal director for the National Immigration Law Center, a group that has participated in several lawsuits against Trump’s ban, said it’s important to have multiple challenges in several states to address different provisions of Trump’s order.
She said about 40 lawsuits were filed around the country in the three days after Trump signed the order to deal with the immediate needs of people who were being detained in U.S. airports and blocked from boarding U.S. flights abroad.
Now, Tumlin said lawsuits like the one led by Washington state, which resulted in the nationwide temporary injunction against the order, are being complemented by the lawsuits in Virginia and elsewhere. Her group has also filed a lawsuit in federal court in Maryland challenging the entire order as illegal.
“It’s important that courts continue to grapple with the different sections,” she said.
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