Homeland Security Secretary John Kelly predicted Tuesday that the Trump administration will prevail in its bid to reinstate an executive order temporarily barring refugees as well as people from seven Muslim-majority countries from entering the United States and mused that judges might be considering the matter from an “academic,” rather than a national security perspective.
“Of course, in their courtrooms, they’re protected by people like me,” he said.
Testifying before the House Homeland Security Committee, Kelly forcefully defended President Donald Trump’s executive order. He said that it is “entirely possible” that dangerous people are now entering the country with the order on hold — as Trump has said via Twitter — and that officials might not know about them until it is too late.
“Not until the boom,” he said when asked if he could provide evidence of a dangerous person coming into the country since the ban was suspended.
But Kelly acknowledged that if he were given a second chance, he might do things differently in rolling out the order. That stands somewhat in contrast to Trump’s recent assertion to Fox News Channel’s Bill O’Reilly that the implementation was “very smooth.”
“In retrospect, I should have — this is all on me, by the way — I should have delayed it just a bit, so that I could talk to members of Congress, particularly the leadership of committees like this, to prepare them for what was coming, although I think most people would agree that this has been a topic of President Trump certainly during his campaign and during the transition process,” Kelly said.
Kelly later said, though, that most of the confusion is attributable to court orders and occurred not among Customs and Border Protection officers, but protesters in airports.
Kelly’s comments come as a federal appeals court panel is preparing to hear oral arguments on whether Trump’s ban should be reinstated. The hearing, scheduled to begin at 6 p.m. Eastern time, marks a critical juncture for the president’s directive, which a lower federal court judge in Washington had ordered suspended last week.
Kelly said that he was not criticizing any judge but that their considerations were “academic” and possibly in a “vacuum.”
“I have nothing but respect for our judges, but they live in a different world than I do,” he said.
Kelly also cast the Trump directive as a mere “pause” that would allow U.S. officials to assess vetting procedures, and he said they were not contemplating expanding it beyond the seven affected countries: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.
The opposition to the measure is mounting. On Monday, 10 former high-ranking diplomatic and national security officials; nearly 100 Silicon Valley tech companies; more than 280 law professors; a coalition of 16 state or district attorneys general, including those from the District of Columbia, Maryland and Virginia; and a host of civil liberties and other organizations formally lent their support to the legal bid to block Trump’s travel ban.
The high-ranking diplomatic and security officials — among them former secretaries of state John F. Kerry and Madeleine Albright, former CIA director Leon Panetta, former CIA and National Security Agency director Michael V. Hayden — said there was “no national security purpose” for a complete barring of people from the seven affected countries.
“Since September 11, 2001, not a single terrorist attack in the United States has been perpetrated by aliens from the countries named in the Order,” the group said. “Very few attacks on U.S. soil since September 11, 2001, have been traced to foreign nationals at all.”
The appeals court panel will have to consider whether Trump exceeded his authority and violated the First Amendment and federal immigration law, and whether his order imposes irreparable harm on those it affects. The three judges hearing the matter are William C. Canby Jr., who was appointed by President Jimmy Carter; Judge Richard Clifton, who was appointed by President George W. Bush; and Judge Michelle Taryn Friedland, who was appointed by President Barack Obama.
The states of Washington and Minnesota argued in a filing Monday that reinstating the ban would “unleash chaos again” by “separating families, stranding our university students and faculty, and barring travel.”
Justice Department lawyers countered that noncitizens outside the United States have “no substantive right or basis for judicial review in the denial of a visa at all,” and that, at most, the lower court judge should have limited his ruling to “previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future.”
After the appeals court rules, either side can ask the Supreme Court to intervene. The Supreme Court, though, remains one justice short; and many see it as ideologically split 4-4. A tie would keep in place whatever the appeals court decides.