(Adds background on court filings, paragraph 16)
By Dan Levine and Dustin Volz
SAN FRANCISCO/WASHINGTON Feb 6 A U.S. federal
appeals court will hear arguments on Tuesday over whether to
restore President Donald Trump's temporary travel ban on people
from seven Muslim-majority countries, the most controversial
policy of his two-week old administration.
In a brief filed on Monday, the Justice Department said last
week's suspension of Trump's order by a federal judge was too
broad and "at most" should be limited to people who were already
granted entry to the country and were temporarily abroad, or to
those who want to leave and return to the United States.
That language did not appear in the government's opening
brief filed at the 9th U.S. Circuit Court of Appeals, and could
represent a softening of its position.
Last Friday's ruling by U.S. District Judge James Robart in
Seattle suspending the travel ban opened a window for people
from the seven affected countries to enter..
The 9th Circuit in San Francisco on Monday asked lawyers for
the states of Washington and Minnesota and the Justice
Department to argue whether the ban should remain shelved. The
court set oral argument for 3 p.m. PST (2300 GMT) on Tuesday.
The new Republican president has said the travel measures
are to protect the country against the threat of terrorism.
Opponents say the 90-day ban is illegal, barring entry for
citizens from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen
and imposing a 120-day halt to all refugees.
National security veterans, major U.S. technology companies
and law enforcement officials from more than a dozen states
backed a legal effort against the ban.
The case may ultimately reach the U.S. Supreme Court.
Ten former U.S. national security and foreign policy
officials, who served under both Republican and Democratic
presidents, filed a declaration in the court case arguing that
the travel ban served no national security purposes.
It was signed by former Secretaries of State John Kerry and
Madeleine Albright, former national security adviser Susan Rice
and former CIA Directors Michael Hayden and Michael Morell.
Over the weekend, the San Francisco court denied the
administration's request for an immediate suspension of the
federal judge's temporary restraining order that blocked the
implementation of key parts of the travel ban while it
considered the government's request in full.
The court did say it would consider the government's request
after receiving more information.
Trump has reacted to challenges to the ban by attacking the
federal judge in Seattle and then the wider court system.
On a visit on Monday to the military's Central Command
headquarters in Tampa, Florida, Trump defended his order.
"Radical Islamic terrorists are determined to strike our
homeland as they did on 9/11," he said. "We need strong programs
for people who love our country," Trump said, adding he did not
want to allow "people who want to destroy us and destroy our
country" into the United States.
STATE OFFICIALS OPPOSE BAN
Opponents of the ban received far more filings in support of
their position than the Justice Department. Washington state's
challenge was backed by about a dozen friends-of-the-court
briefs submitted by at least 17 state attorneys general, more
than 100 companies and about a dozen labor and civil rights
groups. About a dozen conservative groups supported the
government in three such briefs.
"President Trump's executive order is unconstitutional,
unlawful, and fundamentally un-American - and we won't stand by
while it undermines our states' families, economies, and
institutions," said New York Democratic Attorney General Eric
Top technology companies, including Apple Inc,
Google Inc and Microsoft Corp were among the
corporations that filed a similar brief on Sunday with the
appeals court, arguing the travel ban "inflicts significant harm
on American business, innovation, and growth."
Elon Musk's energy products company Tesla Inc and
SpaceX joined the brief on Monday.
Trump faces an uphill battle in the San Francisco court,
which is dominated by liberal-leaning judges. Appeals courts are
generally leery of upending the status quo, which in this case
is the lower court's suspension of the ban.
The appeals court was focusing on the narrow question of
whether the district court had grounds to put the order on hold.
The bigger legal fight over whether Trump had authority to issue
the order will be addressed later in the litigation.
Curbing entry to the United States as a national security
measure was a central premise of Trump's campaign, originally
proposed as a temporary ban on all Muslims.
U.S. presidents have in the past claimed sweeping powers to
fight terrorism, but individuals, states and civil rights groups
challenging the ban said his administration had offered no
evidence it answered a threat.
The New America think tank said all of the people who had
carried out fatal attacks inspired by Islamist militancy in the
United States since the Sept. 11, 2001, attacks had been U.S.
citizens or legal residents. None of those attackers emigrated
or came from a family that emigrated from one of the countries
listed in the travel ban. (bit.ly/2keSmUO)
Trump, who took office on Jan. 20, has vented his
frustration over the legal challenges with a volley of attacks
on the judiciary.
He derided Robart as a "so-called judge." On Sunday, he
broadened his Twitter attacks on Robart, who was appointed by
former Republican President George W. Bush, to include the
"Just cannot believe a judge would put our country in such
peril," Trump tweeted. "If something happens blame him and court
It is unusual for a sitting president to attack a member of
the judiciary, which the U.S. Constitution designates as a check
on the power of the presidency and Congress. Democrats seized on
Trump's remarks to raise questions about how independent his
Supreme Court nominee, Neil Gorsuch, might be.
(Additional reporting by Lawrence Hurley and Susan Heavey in
Washington, Steve Holland in Tampa and Peter Henderson in San
Francisco; Writing by Alistair Bell and Timothy Gardner; Editing
by Jonathan Oatis and Peter Cooney)