Stephanie Wang

The Indianapolis Star

INDIANAPOLIS — "Wait, wait," Judge Frank H. Easterbrook said, taking a tone of dry incredulity. " The governor of Indiana knows more about the status of Syrian refugees than the U.S. State Department does?" 

On Wednesday, a panel of three judges of the U.S. Court of Appeals for the Seventh Circuit lashed into Indiana Gov. Mike Pence's attempted ban of Syrian refugees resettling in the state. 

Indiana Solicitor General Thomas Fisher explained that Pence was concerned that the U.S. cannot properly screen Syrian refugees for potential terrorist threats, based on a statement from the Federal Bureau of Investigation.  That's why the Pence administration said he tried to cut off resettlement agencies from state grants, which flow through the federal refugee program, for refugees coming to the state from Syria. 

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The state was challenging an injunction by federal judge Tanya Walton Pratt, which blocked Pence's order and deemed it unconstitutional discrimination.  The state is being sued by Exodus Refugee Immigration, which has resettled more than 130 Syrian refugees in Indiana this year despite Pence's directive. 

Judges' repeated and pointed questioning Wednesday seemed to center on how Pence justifies the singling out of Syrians and whether he has the authority over the federal government to do so. 

When the state argues that the policy does not discriminate based on national origin, Easterbrook said, "all it produces is a broad smile." 

Pence's office and the attorney general's office declined to respond to questions on the court hearing. 

The American Civil Liberties Union of Indiana, which represented Exodus in court, said in a statement: "The judges were highly critical of the State's reasoning and defense of the Governor's actions.  It is next to impossible to determine how a Court may decide based upon its interaction with lawyers during arguments." 

The court will rule at a later date. 

Here are some of the most heated exchanges.  Listen to the court audio here. 

'Why have you singled out Syrians?' 

"Are Syrians the only Muslims that Indiana fears?"  Judge Richard A. Posner asked. 

"Well, this has nothing to do with religion," Fisher replied. " This has to do with what's going on in Syria." 

"Oh, of course it does," Posner said. 

"Oh, I object to that, your honor," Fisher said. 

"Look," Posner said. " If you look at the attacks, the terrorist attacks on the United States — 9/11, the attacks in New York, Boston, San Bernardino — they're all by Muslims.  ISIS is Muslim.  Al Qaeda was Muslim.  Right?  You understand that, don't you?" 

"I do," Fisher said. " I don't —"

"Do you understand that?"  Posner said. " Now, my question is —"

"I said I did," Fisher said, "and the governor's directive doesn't go into religion." 

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"Don't interrupt me," Posner said. 

Easterbrook stepped in: "Attempting to argue over a judge is not a productive method of argument." 

"So," Posner continued. " Is it your view that Syrians are the only potential terrorists in the United States?" 

"People from Syria are the ones where we lack the intelligence," Fisher said. " That's what the FBI director and the assistant FBI director have said." 

"So we have perfect intelligence about all other potential terrorists?"  Posner asked. " ISIS, and all those people?" 

"Of course not," Fisher said. 

"Well, why have you singled out Syrians?"  Posner asked. 

Fisher reiterated that the governor's concerns arose from the FBI director's comments. 

"In other words, we have enough information to prevent terrorist attacks by anybody who is not from Syria?  Is that what you're saying?  Is that what the FBI says?  We're perfectly secure" — Posner chuckled — "against everyone except Syrians?" 

"No," Fisher said. 

"That's preposterous, right?"  Posner said. 

"Yes," Fisher said. 

They went back and forth on other potential Islamic terrorist threats from other countries. 

"What about people from France, or Germany, where they've had terrorist attacks?"  Posner asked. 

"I'm not sure how else to say it," Fisher said. " This is what the governor has said in response to what has been said about Syria and what's going on on the ground in Syria.  This is what governors are elected to do.  They make judgments on these kinds of things." 

'You are so out of it.' 

With Fisher returning to FBI comments on Syria, Posner seemed to become exasperated. 

"Oh, honestly," Posner said. " You are so out of it.  You don't think there are dangers from people from Libya, from Egypt, from Saudi Arabia, from Yemen, from Greece and France and Germany, which have had terrorist attacks?" 

"We don't have statements before Congress by the director of the FBI and the counter-terrorism assistant director singling out those countries for lack of information and lack of footprint," Fisher said. 

"You seem to think only Syrians are dangers," Posner said. 

A big sigh

Easterbrook pointed to an amicus brief from the United States, in which the federal government said it thinks Indiana exceeded its authority in suspending its support of Syrian refugees. 

That's when he asked: "The governor of Indiana knows more about the status of Syrian refugees than the U.S. State Department does?" 

"No," Fisher said, "what he's saying is that based on testimony before Congress..."

Easterbrook sighed loudly. 

"... it appears that we don't know enough about these refugees and we need to find out," Fisher finished. 

"Yeah, well," Easterbrook said. " That sounds like a ground for disagreeing with the State Department.  It sounds like a ground for asking the president to overrule the State Department.  It doesn't sound like a ground for distinguishing (among) refugees under a program that categorically forbids such distinctions." 

'You play by the government's rules'

The judges asked what part of the law allows Indiana to partially back out of the refugee grant program.  They asked why Indiana could "pick and choose" when it participates. 

"So you want Indiana to be safe, and you want these people to go to other states," Posner said. "...  Well, why should Indiana be safer than, say, Illinois?" 

Before Fisher could answer fully, Posner added: "Do you want all the states to do this?  And then there's no more Syrian refugees?" 

Fisher said two governors have withdrawn entirely from the grant program in question. 

"And that's fine," Easterbrook said. " That is the state's right to withdraw from the grant program.  But Indiana hasn't done it. ...  It's like the Medicaid Act.  You can choose to be in, you can choose to be out, but if you're in, you play by the government's rules." 

As Fisher responded, Easterbrook let out another deep sigh. 

'The president's decision'

"The president of the United States has determined that the United States knows enough to admit 10,000 Syrian refugees," Easterbrook said. " That's the president's decision.  It may be right; it may be wrong.  I don't see how a governor can disagree with the president by saying, well, the FBI director may have given him contrary advice." 

Follow Stephanie Wang on Twitter: @stephaniewang