Outside the Beltway

Trump Administration Issues Revised Muslim Travel Ban

President Trump has issued a revised ban on travel from six predominantly Muslim nations.

Doug Mataconis · Monday, March 6, 2017 · 8 comments

After several weeks of waiting, the Trump Administration has issued a revised Executive Order banning nearly all travel from six Muslim majority nations and halting the entry of refugees:

WASHINGTON — President Trump on Monday signed a revised version of his executive order that would for the first time rewrite American immigration policy to bar migrants from predominantly Muslim nations, removing citizens of Iraq from the original travel embargo and scrapping a provision that explicitly protected religious minorities.

The order, which comes about a month after federal judges blocked Mr. Trump’s haphazardly executed ban in January on residents from seven Middle Eastern and African countries, will not affect people who had previously been issued visas — a change that the administration hopes will avoid the chaos, protests and legal challenges that followed the first order.

But it did little to halt criticism from Democrats and immigrant rights groups, which predicted a renewed fight in the courts. Mr. Trump’s initial, hastily issued order on Jan. 27 prompted protests across the country, leaving tearful families stranded at airports abroad and in the United States.

The new measure will be phased in over the next two weeks, according to officials with the Department of Homeland Security.

John F. Kelly, the Homeland Security secretary, said the order was “prospective” and applied “only to foreign nationals outside of the United States” who do not have a valid visa.

“If you have a current valid visa to travel, we welcome you,” said Mr. Kelly, appearing alongside Secretary of State Rex W. Tillerson and Attorney General Jeff Sessions at the Ronald Reagan Federal Building in Washington early Monday — before leaving without taking reporters’ questions.

“Unregulated, unvetted travel is not a universal privilege, especially when national security is at stake,” Mr. Kelly added.

The indefinite ban on refugees from Syria also has been reduced to a 120-day ban, requiring review and renewal.

Mr. Trump signed the first ban with great fanfare, in front of reporters at the Pentagon. “We don’t want them here,” Mr. Trump said of terrorists. “We want to ensure that we are not admitting into our country the very threats our soldiers are fighting overseas. We only want to admit those into our country who will support our country, and love deeply our people.”

This time, he signed the order in private, with the White House releasing a photograph of the seldom-silent president doing so alone at his desk in the Oval Office.

His staff offered no explanation for the lower-key rollout this time. But administration officials said the president wanted to emphasize that the rewrite was a collective effort, not like the secretive one by the White House advisers Stephen K. Bannon and Stephen Miller that resulted in the botched execution of the first order.

Justice Department lawyers said the revisions rendered moot legal cases against the original travel ban.

But opponents said that the removal of a section that had granted preferential treatment to victims of religious persecution — a provision that immigrant rights attorneys argued was intended to discriminate against Muslims — was a cosmetic change that did nothing to alter the order’s prejudicial purpose.

“This is a retreat, but let’s be clear — it’s just another run at a Muslim ban,” said Omar Jadwat, director of the Immigrants’ Rights Project at the American Civil Liberties Union, one of the groups that sued to stop the first order.

“At its core, the second order looks very similar to the first, and I expect it will run into the same problems from the courts and the public that the first one did. They can’t unring the bell.”

The Senate Democratic leader, Chuck Schumer of New York, described the new order as a “watered-down ban” that was still “meanspirited and un-American.”

Margaret Huang, executive director of Amnesty International USA, said in a statement that the new order would “cause extreme fear and uncertainty for thousands of families by, once again, putting anti-Muslim hatred into policy.”

Congressional Republicans, who were split over the first travel ban, had a more muted reaction. But Speaker Paul D. Ryan, who backed the first order, released a statement saying the revised order “advances our shared goal of protecting the homeland.”

Citizens of Iran, Somalia, Sudan, Yemen, Syria and Libya will face a 90-day suspension of visa processing as the administration continues to analyze how to enhance vetting procedures, according to a Homeland Security summary of the order.

The removal of Iraq from the list came after talks with security officials in Baghdad, at the urging of State and Defense Department officials, who felt the ban would undermine the stability of the United States-allied government.

“On the basis of negotiations that have taken place between the government of Iraq and the U.S. Department of State in the last month, Iraq will increase cooperation with the U.S. government on the vetting of its citizens applying for a visa to travel to the United States,” Homeland Security officials wrote in a fact sheet given to reporters.

The Iraqis agreed to improve the quality of travel documentation and to bolster their sharing of information about potentially dangerous nationals, officials said.

The new order was delayed for about a week as the White House sought to better coordinate its activities with federal agencies and to maximize its public relations impact, according to three administration officials.

In a conference call with reporters Monday morning, officials with the Departments of Homeland Security, State and Justice defended Mr. Trump’s original order and said the rewrite was intended to address legal concerns quickly so they could deal with what they repeatedly characterized as an urgent national security threat.

The most notable difference between this Executive Order and the original one is the fact that it does not apply to people who have Permanent Resident status (a.k.a. the so-called “Green Card”), who have already applied for and received a visa to travel to the United States for a particular purpose, and apparently in some cases if you have previously been issued a visa. The other major change is the fact that Iraq has been taken off the list of nations impacted by the ban. Ostensibly, the justification for this change appears to be the claim that the Administration has received reassurances from the authorities in Iraq that they can and will make changes to their own security provisions to provide better screening that embassy officials issuing visas can make use of in processing applications. The removal also addresses objections that were made in the wake of the original ban that including Iraq on the list was unfairly impacting Iraqis who had helped American forces during the war as translators and in other capacities, many of whom have been in danger of facing retaliation for the work that they did on behalf of the United States. Finally, the ban on refugees only lasts for 120 days at which point it will supposedly be reviewed before being renewed, although it honestly seems unlikely that this Administration will ever reverse its position on the entry of Muslim refugees into the country.

Beyond these changes, the important parts of the new order remain the same as the old order, meaning that it will likely face legal challenges similar to those that led numerous Federal District Court Judges to issue bans on its enforcement, including the nationwide injunction first issued by a Washington State Federal Judge and later upheld by a panel of the Ninth Circuit Court of Appeals. For example, although the Administration claims that it is aimed at the security risk allegedly presented by visitors from these six nations, there still doesn’t appear to be any evidence that these six nations pose any significant security risk different from one that might be posed by visitors from other Muslim nations not included in the ban such as Saudi Arabia, Egypt, and the United Arab Emirates. As I’ve noted before, in fact, these last three nations were the source of the terrorists who attacked the United States on September 11, 2001, as well as the attackers in such terror attacks as the Africa embassy bombings in the 1990s and the attack on the USS Cole and the Khobar Towers bombing that killed many American service members based in Saudi Arabia in the years after Operation Desert Storm. Given that, the order is still open to charges that it is arbitrary and based on bias against Muslims rather than legitimate security concerns. Another argument against the Administration’s security arguments is the fact that they waited more than a month to issue a revised travel ban rather than either appealing the Ninth Circuit ruling or issuing a new ban immediately. Additionally, the current ban doesn’t go into effect until March 16th even though Trump has previously stated that he was told that delaying implementation of the order would be too much of a security risk. All of this argues against the urgency of the ban, and the imminent nature of the security risk.

Reason’s Shikha Dalma argues that, beyond these cosmetic changes, there’s little difference between the two orders:

For starters, as with the old ban that, like the proverbial drunk who looked for his lost car keys under the lamppost where he could see rather than where he lost them, the new ban too goes after countries that are easy targets, not ones that actually have sent terrorists to America (not that it would be OK to have a blanket ban against innocent tourists or students or other travelers from them either). The countries covered by the ban this time include Iran, Syria, Sudan, Libya, Somalia and Yemen. Iraq, which was in the original ban, has been dropped from the list because, evidently, the Iraqi government has assured the administration that it has adequate vetting procedures in place. With the exception of Iran, what’s perverse about this list is that it shuts out the victims trying to flee Islamic terrorism. (And in Iran’s case those who want to flee repressive mullahs.)

Indeed, as has been pointed out a gazillion times, these countries may be on America’s list of states having a terrorism problem, but it is not one directed at us. On the whole, even among the handful of Muslims in America who’ve been involved in violent extremism of any kind here or abroad, very few of them have been from these countries and none of these have perpetrated a deadly attack on American soil. According to New America, a think tank compiling information on terrorist activities in the United States since 9/11, 94 people have been killed by jihadists in the past 15 years. But the majority of attackers come from within. The study concluded:

“Far from being foreign infiltrators, the large majority of jihadist terrorists in the United States have been American citizens or legal residents. Moreover, while a range of citizenship statuses are represented, every jihadist who conducted a lethal attack inside the United States since 9/11 was a citizen or legal resident,” it says. “In addition about a quarter of the extremists are converts, further confirming that the challenge cannot be reduced to one of immigration.” [Emphasis added]

Ironically, the countries that do breed anti-American terrorism such as Saudi Arabia (home of the 9/11 hijackers), Pakistan (San Bernardino shooting duo), Soviet Union (one of the Boston marathon bombers) are conspicuously absent from Trump’s list because it would likely upset the foreign policy establishment too much.

But the ban is not merely misdirected it is also overkill. America did not impose anything this extreme even after 9/11. So what exactly is the need now 17 years and trillions of dollars of spending on homeland security later? Attorney General Jeff Sessions muttered something about 300 refugees being under investigation for terrorism by FBI. But it is unclear what that means. The FBI constantly investigates all kinds of activities, not all of them turn out to be actual threats.

In fact, notes Kristie De Pena, Niskanen Center’s Immigration Counsel, it is impossible to authenticate Sessions claims because, generally, law enforcement records—including FBI records—are exempted from FOIA requests when untimely disclosure would jeopardize ongoing criminal investigations. Furthermore, in the aftermath of 9/11, that exemption was expanded on a number of grounds to protect national security. So, she notes, there is no way of knowing whether these refugees are from these countries or elsewhere or the nature of the activities they were plotting unless the administration itself offers more details.

If it fails to offer credible evidence of credible threats, it’ll be hard to escape the conclusion that the travel ban is simply an exercise in fear mongering. Indeed, not counting Sessions claims, refugees in this country are safer than apple pie.

The Volokh Conspiracy’s Ilya Somin, meanwhile, argues that the new ban suffers from the same legal defects as the old one:

[T]he revised order remains vulnerable on the ground that its real purpose is religious discrimination against Muslims, which was the basis for the most recent trial court ruling against the initial order. Like the original order, the new one is still clearly an outgrowth of Trump’s advocacy of a “Muslim ban,” as admitted by Trump adviser Rudy Giuliani, who played a key role in drafting the first order. Courts have repeatedly – and correctly – ruled that Trump and Giuliani’s anti-Muslim statements are relevant to assessing the constitutionality of the original order.

The same should be true of the new order, as well. The new order is clearly an outgrowth of its predecessor, and still targets all the same Muslim-majority nations, with the exception of Iraq. The security rationale for the order remains laughably weak. Indeed, the risk that any given American will be killed by an immigrant terrorist of any kind is much lower than the risk that he will be killed in a lightning strike. The total number of Americans killed by immigrant terrorists from the nations covered by the travel order is zero, though a very small number have made unsuccessful attempts.

By singling out citizens from these countries for exclusion, Trump’s order may well actually increase the risk of terrorism, because it disincentivizes citizens of those nations from cooperating with US forces. That danger is reduced by the decision to drop Iraq from the new order and to make the exclusion of Syrians temporary rather than indefinite. But Syrians and citizens of other nations who cooperate with US forces still have reason to worry. The administration might try to extend the 120 day period after it ends. And even 120 days might be a long time for those in fear for their lives. More generally, even a temporary categorical ban on entry by citizens of those nations likely alienates public opinion there, and makes cooperation with American forces less likely.

The weakness of the security rationale for both the original order and the new one makes it more likely that discrimination against Muslims is the true motive behind it. Under the standard legal framework for analyzing such cases, once evidence of discriminatory intent is proven, the government has the burden of showing that it would have adopted the same policy even in the absence of improper motivation. That burden will be extremely difficult to meet in this case.

The Trump administration will continue to argue that the courts should defer to its policy and not scrutinize it closely because of the so-called “plenary power” over immigration. It is possible that the courts will be more receptive to such arguments now that the new order exempts green card and visa holders. But such deference would be a mistake for reasons I discussed here and here.

No doubt, this Executive Order will come under much the same scrutiny that the original order did and the Administration is hoping that the changes that it made, specifically those concerning Permanent Residents and people who already hold visas to travel to the United States, will be sufficient to allow the order to withstand legal scrutiny. Whether that is the case remains to be seen since it’s clear that this order will be challenged just as quickly as the first one was. As it stands, though, the objections I note above remain in place for the new order, as does the fact that the Administration has not presented any evidence supporting the idea that the people from these six nations represent a security risk to the United States different or more extreme than the risk presented by immigrants and visitors from other nations that are also home to Muslims. Also, it remains vulnerable to the same objections about the ban being based in bias against Muslims that proved to be quite convincing to the Judges of the Ninth Circuit. Given that, we can expect legal challenges to begin soon.

You can read the actual ban here.

President Donald Trump s Revised Travel Ban by Doug Mataconis on Scribd