On January 27th of this year our President issued Executive Order 13769 entitled PROTECTING THE NATION FROM FOREIGN TERRORIST ENTRY INTO THE UNITED STATES (yes the caps lock is how it appears on the White House website). This order, dubbed the Travel Ban, caused chaos across, not just the US, but the world. The order banned all travel from 7 countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Protests, aid from lawyers, and finally a judge's intervention put a halt to the ban in short order. When the 9th Circuit Court of Appeals refused to overturn the stay of the Executive Order the President was left with two options if he wished to continue on this vein.
His choice has now been made clear by the issuing of his Executive Order: Protecting The Nation From Foreign Terrorist Entry Into The United States. Sound familiar? That's because his new Executive Order (issued 3/6/17) reuses the title from the previous controversial order. At least this time they figured out what caps lock is. Changes have been made, some of them substantial, but the core of this order is essentially the same.
This order begins with a recap, explanation, and attempt to justify the previous Executive Order. This first part of the order feels overwhelmingly like a parent trying to explain to a small child why bed time is important or, worse, like someone talking exaggeratedly slow to someone who's hard of hearing even though they understand them perfectly well. Section 1(b)(ii) shows the President insisting that what he did was within his powers though there is a clear disconnect in what he can legally do and what he should and actually did. He also insisted in Section 1(b)(iv) that this was not religiously motivated despite the President's previous statements against those who practice the Islamic faith. Section 1(c) goes further by heaping scorn on the court ruling using language clearly designed to delegitimize the court's actions.
The President continues his justifications by adding a country by country list of reasons for banning travelers for 6 of the 7 countries he previously excluded. It is interesting to note that Iran, Sudan, and Syria are justified because they are on the State Sponsors of Terrorism list however the President fails to note that they have been on the list since 1984, 1993, and 1979 respectively. Apparently now, suddenly, the threat of terrorism is great enough to ban all travelers despite the fact that 2 of the 3 have been on this list for more than 30 years.
The President's first concession comes with the treatment of Iraqis. The President calls this a "special case" because of "the close cooperative relationship between the United States and the democratically elected Iraqi government, the strong United States diplomatic presence in Iraq, the significant presence of United States forces in Iraq, and Iraq's commitment to combat ISIS justify different treatment for Iraq." It is important to note that the overriding theme of his justification is US intervention in Iraq.
To further drive home fear of those entering from abroad the President states: "Since 2001, hundreds of persons born abroad have been convicted of terrorism-related crimes in the United States." The President made a similar statement to a joint session of Congress last week. To Congress he stated "According to data provided by the Department of Justice, the vast majority of individuals convicted of terrorism and terrorism-related offenses since 9/11 came here from outside of our country." Politifacts has an excellent article debunking this statement. The highlights of this article include the fact that the DOJ numbers only included those convictions with an international element that began with a terrorism tip, regardless of what the final conviction was for. Of the 580 people on the list 380 were judged to be foreign born based on research conducted by a Senate committee headed by Jeff Sessions at the time. However, only 40 of those 580 involved terrorism that was planned and/or executed on US soil. Additionally, 241 (or half) of the people on that list were convicted of non-terrorism crimes though they are included in the list because the investigation began with a terrorism tip that wound up being unfounded. The President has spent extensive amounts of time concerned with international terrorists while all but ignoring the problems of domestic terrorism and gun violence.
Couching it as an effort to "temporarily reduce investigative burdens" the President then re-ups his travel ban for 90 days stating that "the unrestricted entry into the United States of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen would be detrimental to the interests of the United States." His use of the term "unrestricted" seems misplaced since travel to the US has not in recent history been unrestricted and in fact there is a wide gap between unrestricted and no admittance which seems to be his aim. Other than removingIraq from his list his concessions to the outcry include restricting the ban only to those who:
a) are outside the country on the date of this order
b) did not have a valid visa at 5:00 p.m., eastern standard time on January 27, 2017
c) do not have a valid visa on the date of this order
He also allows exceptions for:
a) lawful permanent US residents
b) any foreign national who is admitted to or paroled into the United States on or after the effective date of this order
c) a national with documents other than a visa valid on or after the date of this order that permits entry
d) dual nationals when traveling on a passport issued by a non-designated country
e) those traveling on a diplomatic or diplomatic-type visa, North Atlantic Treaty Organization visa, C-2 visa for travel to the United Nations, or G-1, G-2, G-3, or G-4 visa
f) those who have been granted asylum; any refugee who has already been admitted to the United States; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture
This is of course all subject to "case by case exceptions" though he has clarified said exceptions to include when there would be undue hardship, AND entry would not pose a threat to national security AND would be in the national interest. He even provided examples which seem to parallel some of the most egregious offenses of the previous ban. However a review will be conducted of all country's entry procedures and any country found out of compliance may be subsequently added to these restrictions.
The new "Uniform Screening and Vetting Standards" are also a cause for concern. While it is important to prevent, whenever possible, any act of terrorism the language laid out by the President should cause alarm. My particular concern is with the statement "a mechanism to assess whether applicants may commit, aid, or support any kind of violent, criminal, or terrorist acts after entering the United States" (emphasis added). Ensuring that someone is who they claim to be, has not committed or expressed a desire to commit terrorism is all well and good, but the vague use of the word "may" ventures into conjecture that can too easily be colored by prejudice and stereotyping.
The US Refugee Admissions Program (USRAP) gets attention once again with a 120 day ban of all refugees. This time exceptions have been added for those already accepted and scheduled for transit. The President still caps the 2017 admittance at 50,000 refugees but no longer insists upon singling out Syrian refugees with an open ended ban. While this is progress the President might want to read up on the current screening for refugees before he deems that the screening is too lax. He also states a desire to increase state and local involvement in refugee placement which seems to imply requiring state approval before resettlement. This has been a common struggle for some time which is ridiculous considering once they are admitted to the US they will be free to travel within our borders.
In keeping with the President's apparent fear of foreigners this executive order also mandates certain information be published at regular intervals. This information includes:
a) the number of foreign nationals who have been charged, convicted, or removed from the US for terrorism-related offenses while in the United States
b) the number of foreign nationals in the United States who have been radicalized after entry into the United States
c) the number and types of acts of gender-based violence against women by foreign nationals
d) "any other information relevant to public safety and security as determined by the Secretary of Homeland Security or the Attorney General, including information on the immigration status of foreign nationals charged with major offenses"
The initial report will be back dated to 9/11/01. There are 4 key points in here that I would like to highlight. The first is his use of the term "terrorism-related offenses" which is the same term used in the DOJ report sited earlier and may include convictions for non-terrorism offenses. Next is the fact that this list includes those who have been only been charged with an offense which, in our system, should mean nothing until after the conviction. Under bullet (c) he singles out gender-based violence against women committed by foreign nationals as if this were somehow more significant than the violence suffered by women at the hands of US citizens on a daily basis. Finally is the President's use of the overly broad statement "any other information." I just imagine a group of cranky old white guys sitting around a table and saying "how can we make people unnecessarily terrified of immigrants today."
In general I say nice try Trump, but I'm not buying it.
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