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August 22nd, 2017

Insight

Judge Robart's national security expertise

Byron York

By Byron York

Published Feb. 8, 2017

Judge Robart's national security expertise

Judge James Robart, of the U.S. District Court for the Western District of Washington State, believes there is no basis for President Trump's executive order temporarily suspending non-American entry from seven terrorism-plagued countries.

In court last week, Robart questioned Justice Department lawyer Michelle Bennett about the administration's decision to confine the moratorium to Somalia, Libya, Yemen, Syria, Sudan, Iraq, and Iran.

"Have there been terrorist attacks in the United States by refugees or other immigrants from the seven countries listed, since 9/11?" Bennett said.

"Your honor, I don't know the specific details of attacks or planned attacks," Bennett responded. "I think -- I will point out, first of all, that the rationale for the order was not only 9/11, it was to protect the United States from the potential for terrorism. I will also note that the seven countries that are listed in the executive order are the same seven countries that were already subject to other restrictions in obtaining visas that Congress put in place, both by naming countries, Syria and Iraq, and that the prior administration put in place by designating them as places where terrorism is likely to occur, or -- the specific factors are whether the presence in a particular country increases the likelihood that an alien is a credible threat to U.S. security or an area that is a safe haven for terrorists."

Bennett was obviously improvising a bit at that point and did not have the facts at her fingertips. Robart would have none of that. "Well, let me walk you back, then," Robart said. "You're from the Department of Justice, if I understand correctly?"

"Yes."

"So you're aware of law enforcement. How many arrests have there been of foreign nationals for those seven countries since 9/11?" "Your honor, I don't have that information. I'm from the civil division, if that helps get me off the hook."

"Let me tell you," Robart said. "The answer to that is none, as best I can tell. So, I mean, you're here arguing on behalf of someone President Trump that says: We have to protect the United States from these individuals coming from these countries, and there's no support for that."

In that brief moment, Robart declared there is "no support" for Trump's decision. And with that, the judge from the U.S. District Court for the Western District of Washington State ordered a nationwide -- actually worldwide -- halt to enforcement of the president's executive order.

Now, it turns out Robart might not know as much as he let on. Last summer, the Senate Judiciary Subcommittee on Immigration and the National Interest analyzed public sources of information, seeking to learn more about people convicted of terror-related offenses. The Justice Department provided the subcommittee with a list of 580 people who were convicted -- not just arrested, but tried and convicted -- of terror-related offenses between Sept. 11, 2001 and Dec. 31, 2014.

The subcommittee investigated further and found that at least 380 of the 580 were foreign-born and that an additional 129 were of unknown origin. Of the 380, there were representatives -- at least 60 -- from all of the countries on the Trump executive order list. And with 129 unknowns, there might be more, as well.

In addition, since the Senate list was compiled, there have been others involved in terrorism in the United States from the seven countries. One highly publicized example was the case of Abdul Artan, a Somali refugee who last November wounded 11 people with a machete during an attack on the campus of Ohio State University. In fairness to Judge Robart, Artan was shot and killed by police -- not arrested -- so perhaps the judge didn't count him.

In a report Monday, the Associated Press, relying on the research of University of North Carolina professor Charles Kurzman, reported that "23 percent of Muslim Americans involved with extremist plots since Sept. 11 had family backgrounds from the seven countries." The bottom line is, Robart's confident assertion to Bennett was wrong.

In her exchange with the judge, Bennett tried to argue that the Constitution and the law make clear that the president is the person charged with making national security decisions like those in the Trump executive order.

"Your honor, I think the point is that because this is a question of foreign affairs, because this is an area where Congress has delegated authority to the president to make these determinations, it's the president that gets to make the determinations," Bennett said. "And the court doesn't have authority to look behind those determinations."

Robart strongly disagreed, and stopped the president's order. After all, he knew best.

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