At 4:42 p.m. on Friday, President Donald Trump signed an insanely sweeping executive order citing 9/11 to justify a ban on all travel to the United States from citizens of seven mostly Muslim countries. Those didn’t include any of the countries the hijackers came from, or any of the countries where his own businesses have been the most active. It did include American green-card holders, and dual citizens of allies like Britain.
As planes landed Saturday morning, people already vetted by the United States—with families and lives here—found themselves caught in a nightmare, a world that had changed while they were in the air.
A Clemson professor visiting her family in Tehran posted that she was trapped there, scrambling to find someone here to watch her dog. A Syrian family of six with visas was placed on a plane back to Doha. A translator who’d worked with our military in Iraq was put in cuffs, before two New York Congressmen intervened on his behalf. Others were questioned about their opinion of President Trump and pressed to show their social media accounts to federal officials.
Incredibly, the government won’t (or perhaps can’t) say how many people have been detained, though an unnamed senior official at the Department of Homeland Security official told the Washington Post Saturday that 109 people had been denied entry upon arrival and 173 had not been allowed to board flights at foreign airports. That’s the same DHS that didn’t see the order until hours before Trump signed it, according to CNN, and was unable to offer a legal analysis until after it was in effect.
Saturday evening, Federal District Court Judge Ann Donnelly asked the government to explain itself. It could not. In a remarkable display, U.S. attorneys—rarely at a loss for an argument—were as flummoxed as many of the rest of us.
They briefly tried to argue that since the two named parties in the ACLU’s request for a temporary stay on parts of Trump’s order had already been released, the group lacked standing.
“What about the others in the class,” asked Donnelly, about the possibility they would suffer “irreparable damage” if they were sent home. “If they had come here two days ago, we wouldn’t be here, right?”
“This has unfolded with such speed,” Eastern District U.S. Attorney Susan Riley replied, on Trump’s behalf, “that we haven’t had an opportunity to address the issues, the important legal issues.”
Or, as some of the hundreds of Brooklynites protesting outside of the courthouse might have put it less formally, “beats the shit out of me.”
“These people were caught in transit,” American Civil Liberties Union lawyer Lee Gelernt argued, adding that he’d been informed during the hearing, slightly after 8:00 p.m., that “we just got word that the government is threatening to put someone on a plane at 9:20.” He added a few minutes later, he’d just then been told that person is a Syrian, who would be sent back to that war-ravaged nation.
Donnelly pressed the government on how it could claim those already vetted and now suddenly rejected by the United States wouldn’t suffer “irreparable harm” if they “were sent back to some of the most dangerous places on earth.”
That’s not a trick question, but one part of the four-part balancing act a judge must use to decide on a request to halt such an order. Again, the government’s lawyers didn’t even attempt a real answer, just went on for a bit about how many different people with different circumstances would be affected in many different ways by the order.
Asked how many people had been detained, Riley said: “The government does not have sufficient information to answer.”
Donnelly had heard enough.
“That’s exactly why I’m going to grant” the ACLU’s request, she ruled at about 9 p.m.—with perhaps 20 minutes to spare for the unknown Syrian.
The judge then noted drily that “I don’t think the government has really had a chance to think about this,” and asked if they could return to court next Friday morning to discuss the issues now that she’d granted the emergency motion, “Is that too soon?”
“Yes it is, your honor.”
The parties will meet again in mid-February, with the order ensuring that those now detained will not be deported until the government attorneys have had their chance to think about this, and the court then rules on their arguments.
Meantime, the ACLU’s Gelernt noted, that “it sounds like the government is going to keep all these people in detention,” adding that “they’re not letting us see all the people in the airport.” He asked for a list of them.
“We don’t know. People are coming in all the time,” said Riley.
Donnelly ordered a list be provided, adding “if there is somebody”—like the Syrian—“who is in danger of being removed, I direct you to communicate that we have a stay.”
‘The whole point of this hearing is to preserve the status quo,” she said. “I don't think it's unduly burdensome to identify people we are talking about here.”
And with that, the status quo was preserved for at least a few more days — at least if the Trump administration respects the court's order. In an emergency motion for clarification and enforcement filed early Monday morning, the ACLU warned of "repeated reports of individual members subject to the Order who have been placed on planes, possibly deported, and subject to intimidation to sign removal orders after the issuance of the Court’s Order."
One U.S. Attorney, the group said, "refused to confirm that Respondents would respect the Order nationwide."
These are Trump’s new functionaries, wrestling with how to justify the unjustifiable once they're summoned back to court. Beats the shit out of me.