On Monday, President Donald Trump signed a revised executive order on immigration, designed to correct the deficiencies of the last one that several courts have put on hold. Although it removes some of the red flags planted in his last order, which courts found would likely run afoul of the U.S. Constitution’s Establishment Clause, the new order is still basically a Muslim ban. It’s no more rationally based on national security than was the previous order.
The new order attempts to resolve some of the legal disputes over the last one by removing the previous explicit exemption for religious minorities in the countries targeted by the suspension of the refugee program. It also no longer singles out Syrian refugees for exclusion, but continues to suspend all refugee resettlement in the United States for 120 days.
The new order also removes Iraq from the earlier list of banned countries, but it continues to include six majority-Muslim countries: Iran, Somalia, Libya, Sudan, Syria, and Yemen, with the justification that “the conditions in these countries present heightened threats.” Each of these countries, the order states, “is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones.” The order notably still does not include Pakistan, Afghanistan, or Saudi Arabia. What’s more, it continues to rely on the absurd justification that the situations in those countries affect “the foreign government’s willingness or ability to share or validate important information about individuals seeking to travel to the United States.” In other words, it penalizes refugees fleeing repressive governments because their governments won’t help vet their citizens’ claims of government persecution.
The new ban ostensibly attempts to resolve the legal issues that led the original executive order to be stayed by several courts, but the new order doesn’t solve the central problem of the first one. The order still targets nationals of only Muslim-majority countries, with no reasonable national security justification. It’s still a Muslim ban.
One need look only to leaked reports from Trump’s own Department of Homeland Security to see that the intent of his order has nothing to do with national security. In an internal report leaked in February, DHS analysts concluded that citizens from the six specified countries do not present any particular terrorism threat in the United States. On the contrary, it found that the majority of individuals implicated in terrorist-related activity in the United States have been U.S. citizens, not foreigners.
A second DHS report leaked to the Rachel Maddow Show shows that most individuals found to have participated in terrorist plots in the United States became radicalized years after they came to the country. Their radical inclinations therefore could not have been detected at the border, DHS concludes.
Indeed, one of the only examples of a refugee involved in an attempted attack in the United States involved a Somali man who came to this country at age two and was caught up in an FBI sting operation, where FBI agents gave him an inert device to detonate at a Christmas tree-lighting in Oregon. The Trump administration relies on this case for justification of its suspension of the refugee program. A Q&A sheet prepared by DHS for the new executive order describes this case but does not mention the boy’s age when he immigrated to the America, or the sting operation.
The government’s own data reveal that the attempt to prevent terrorism in the United States by blocking people’s entrance based on nationality is nonsensical. The motive is not national security, but discrimination.
Numerous statements by the president himself, and of his most senior advisors, reveal the order’s true intent. As the courts have made clear, that sort of context is critical to determining whether the order is constitutional.
In December 2015, then-candidate Trump’s own website boasted: “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” You can still find that statement on his website today.
On the campaign trail, Trump repeatedly scapegoated Muslim immigrants for crimes they had nothing to do with. After a mass shooting that killed 49 people in Orlando, for example, Trump promised he’d stop immigration of Muslims to the United States, saying refugees and immigrants could be America’s “Trojan horse.” He added that his rival, Hillary Clinton, wanted to accept “hundreds of thousands of refugees from the Middle East with no system to vet them, or to prevent the radicalization of their children.”
The Orlando shooting was committed by a 29-year-old American citizen born in New Hyde Park, New York. His father came to the United States in the 1980s from Afghanistan. Meanwhile, refugees entering the United States are subjected to lengthy, intensive screening—the most stringent security reviews of anyone allowed to enter the country.
Trump has also claimed, without basis, that refugees from Syria “could be ISIS”; claimed in a presidential debate that the United States is admitting tens of thousands of “ISIS-aligned” Syrian refugees, and tweeted in Nov. 2015: “Refugees from Syria are now pouring into our great country. Who knows who they are—some could be ISIS. Is our president insane?”
And last July, when asked if he was proposing an unconstitutional Muslim ban, Trump complained to Chuck Todd on NBC’s Meet the Press that “you can’t call it Muslim.” To achieve the same goal, he would be “looking now at territories”— i.e., the six named countries.
Of course, the president’s senior advisors, including Attorney General Jeff Sessions and Trump’s chief strategist Stephen Bannon, have also warned of grave dangers of allowing Muslims to enter the United States.
Sessions has frequently rung alarm bells on refugee admission, warning of frightening consequences of growing levels of “foreign born” in the United States. He said that the Obama administration had proceeded “with plans to admit hundreds of thousands of largely unvettable refugees from areas of the world that are producing terrorists and extremists,” and warned that Muslims are the fastest-growing group of migrants.
“Altogether, we can expect to issue nearly 700,000 green cards—or lifetime residency cards—to migrants from Muslim nations over the next five years (as we did over the last five years),” Sessions said, quoted in Breitbart. “Terror groups have demonstrated that they will recruit from among this inflow.”
Bannon, meanwhile, is notorious for fomenting anti-Muslim hysteria. He’s claimed we’re “at the beginning stages of a global war against Islamic fascism,” and blamed the turmoil resulting from the refugee crisis in Europe on the fact that the migrants were Muslim. “These are not people with thousands of years of understanding democracy in their DNA coming up here,” Bannon said. He told his radio audience in December 2015 that “over half” of Muslims in the Middle East believe in sharia, and added ominously: “One of the issues we have in Garland, Texas, is trying to stop these Sharia courts.” The claim that anyone was trying to establish Sharia courts in Texas was soon widely debunked, and earned the distinction of The Houston Chronicle’s “2015 Texas hoax of the year.”
Of course, Bannon was also a founder and executive chairman of the right-wing extremist Breitbart News, which under his direction regularly published anti-Muslim stories with headlines such as: “Political Correctness Protects Muslims Rape Culture”; “The Huffington Post Whores for the Hijab”; “Silicon Valley’s Startup Culture Explains Why Mass Muslim Immigration Must Stop”; and “Man Bites Dog: Muslim is Nice to Non-Muslim.”
He also championed the work of Pamela Geller, a political commentator who’s notorious for her anti-Muslim views. She published many of those views on Breitbart, in stories like “How Muslim Migrants Devastate a Community.” The Southern Poverty Law Center, which tracks and exposes hate groups, calls Geller “the anti-Muslim movement’s most visible and flamboyant figurehead.”
Bannon himself has repeatedly publicly opposed admitting refugees from Muslim-majority countries. “Why even let ’em in?” he asked on his radio show in 2015, saying vetting would cost money. “Can’t that money be used in the United States?” he said. “Should we just take a pause and a hiatus for a number of years on any influx from that area of the world?”
While supporters of the Muslim ban dismiss such statements as irrelevant to the White House’s current actions, they’re actually central to determining the administration’s intent.
“It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims,” wrote the Ninth Circuit Court of Appeals in affirming a district court’s stay on the original executive order on immigration.
The purpose seems pretty obvious here, especially considering the government’s own findings that “country of citizenship is unlikely to be a reliable indicator of potential terrorist activity.” DHS also concluded that while terrorist groups operating in Iraq, Syria, and Yemen, pose a threat to the United States, groups in Iran, Libya, Somalia, and Sudan “remain regionally focused.”
Overall, DHS found that citizens of the countries banned in the original order are “rarely implicated in U.S.-based terrorism,” and that of the 82 individuals who either died in the pursuit of or were convicted of any terrorist-related offense attempted against the United States, more than half were U.S. citizens. The rest were from 26 different countries, with no one country representing more than 13.5 percent of the total. DHS found that “relatively few citizens” of the countries impacted by the executive order have access to the United States.
The United States already has many controls at its border to prevent threats, and none are stricter than those applying to refugees, who often must wait two years or more to resettle in the United States. There simply is no basis for excluding all travelers from the six specified countries, even temporarily, or for excluding all refugees, most of whom are Muslim, for the purposes of national security.
The Trump administration can restrict immigration if it wants to, and indeed, the executive has wide latitude to do so. But the president cannot exclude individuals based on their religion, as this order plainly does, without running afoul of the U.S. Constitution.
This post appears courtesy of Just Security.