By: Joel B. Pollak
The judgment of the Ninth Circuit upholding the temporary restraining order (TRO) against President Donald Trump’s recent executive order restricting travel from seven terror-prone countries would have allowed one of the 9/11 hijackers to sue the government to come to, or stay in, the United States.
Under the court’s novel theory of legal standing, “injuries” to public universities that result from foreign students and teachers not being able to enter the country give the states standing to sue.
Moreover, the court held that foreigners with visas have due process rights under the Fifth Amendment of the U.S. Constitution, even though the precedent it cited applied to people already in the United States. Those due process rights could also be asserted by states on behalf of people in the U.S. illegally or “who have a relationship with a U.S. resident or … institution,” the court held in its ruling.
Hani Hasan Hanjour was one of the four pilots in the September 11, 2001 attack. He flew American Airlines flight 77 into the Pentagon, killing 184 people, including everyone on the flight. He was in the U.S. on a student visa, according to the 9/11 Commission report.
He was from Saudi Arabia, a country not covered by the executive order. By the reasoning of the Ninth Circuit, however, Hanjour would have due process rights to challenge his exclusion from the United States once he had been granted a student visa. His relationship with a U.S. “institution” — in this case, an English as a Second Language school in Oakland, California — would have been enough to grant him standing. A state could have sued on his behalf even while he was still abroad.
Hanjour did not, in fact, attend the English as a Second Language school in California, but resumed flight training in Arizona that he had begun on an earlier visit, the 9/11 Commission found.