Listening to the various questions put forth by the 9th Circuit over Trump’s Muslim Ban was fairly interesting and enlightening, although there are some points that remain muddied even by the attorneys and judges involved. And clearly, Donald Trump didn’t get it.
“If the U.S. does not win this case as it so obviously should, we can never have the security and safety to which we are entitled. Politics!” he wrote.
During the discussion there was an argument made by the government that this isn’t a “Muslim Ban” because it didn’t affect every Muslim all over the world, and only involved 7 countries that had been previously singled out by the Obama Administration as “dangerous.”
That’s half true, but mostly it’s not.
During the hearing the Government argued that they didn’t come up with the list of countries to target.
Flentje said that “numerous foreign individuals” had committed crimes since September 11, 2001, and that the President had determined that there were “deteriorating conditions in certain countries.” When he was asked if the government had pointed to any evidence connecting those particular countries to terrorism, he rejected the idea that it had to. “These proceedings have been moving very fast,” Flentje said. He noted that President Barack Obama had once cited these countries in making changes to the visa-waiver program. (Steve Coll has written about why this is a false analogy.) Why shouldn’t President Trump get to do even more?
But there were immigration processes in place, Judge Clifton said. Where was the evidence “that there’s a real risk, or that circumstances have changed?”
Circumstances have not changed.
The initial countries were targeted by an anti-refugee bill by Ted Cruz which ultimately failed were Iraq, Libya, Somalia, Syria, and Yemen because they had “territory substantially controlled by a foreign terrorist organization“ . A later bill introduced in the house placed a 90-day block on visa waivers for persons from 38 countries if they happened to have duel citizenship or had travelled through a similar list of countries.
Under the Act, travelers in the following categories are no longer eligible to travel or be admitted to the United States under the VWP:
- Nationals of VWP countries who have been present in Iraq, Syria, or countries listed under specified designation lists (currently including Iran and Sudan) at any time on or after March 1, 2011 (with limited government/military exceptions).
- Nationals of VWP countries who have been present in Iraq, Syria, Iran, Sudan, at any time on or after March 1, 2011 (with limited government/military exceptions).
These restrictions do not apply to VWP travelers whose presence in Iraq, Syria, Iran, Sudan, Libya, Somalia, or Yemen was to perform military service in the armed forces of a program country, or in order to carry out official duties as a full-time employee of the government of a program country. We recommend those who have traveled to the seven countries listed above for military/official purposes bring with them appropriate documentation when traveling through a U.S. port of entry.
This was not a travel ban. The Visa Waiver program allows people from 38 countries to come to the United States without a first obtaining a Visa, suspending the waiver program only required these persons to. get. a. visa. first.
The people targeted here weren’t the people in the 7 countries, it was people from the 38 countries that are included in the waiver program. If they had travelled to those countries or had duel citizenship they were required to get a visa before entering the U.S., so that’s an upgrade in the requirements for security purposes but a) not a ban on travel and b) clearly not targeted even at the majority muslim countries largely because traveling through those countries or having duel-citizenship clearly would have nothing to do with your professed religion.
There have been no attacks on U.S. soil by anyone from any of those 7 countries since 2001. None. To be fair you would have to go all the way back to bombing of Pan Am 103 in 1988 to find an attack perpetrated by Libya, and that was ordered by Quadaffi himself as retaliation against the U.S. trying to bomb him, not a current “muslim terrorist” organization. Other than Congress and Obama requiring people who had travelled through those countries to first get a visa, what exactly is the real justification to ban everyone from those countries from being able to enter even when they do have a visa or — as was initially done — already had green cards and were permanent citizens?
If there truly is a need to upgrade the visa and refugee vetting, why exactly can’t that simply be done while those programs are still operating? Where is the proof of an urgent need to block all access, or that a new updated vetting process can be implemented in 90-120 days?
The government attorney didn’t even try to answer that question, instead arguing that on matters of national security the court had no right to question or second guess the President.
“Well, the President determined that there was a real risk,” Flentje said. It was, he added, “understandable” that he had done so, because “the President understands” these matters.
Friedland pressed him again: Was he saying that the President’s determination was “unreviewable”?
“Yes,” Flentje finally said, within “obvious” constitutional restraints. Any judicial review was “limited” and confined to the “four corners of the document”—that is, the court was allowed to make sure that the order was “facially” legitimate, meaning correct in form and citing real laws and deploying the right legal jargon in the right places, a test he said that the executive order “easily” passed. And that was all. They might, in some cases, hear out American citizens who were directly affected, but even there the review was extremely limited.
“We’re not acknowledging any review on the facts of the case,” Flentje said.
The President had been in office for 7 days. When exactly did he make this determination? How much research was truly involved?
Another point is that the Obama Administration already performed this type of vetting upgrade after two Iraqi refugees (in the Bowling Green “Massacre”) were arrested for trying to send weapons to Iraq.
Department of Homeland Security spokesperson Peter Boogaard said in a statement that the U.S. government "continually improves and expands its procedures for vetting immigrants, refugees and visa applicants, and today [the] vetting process considers a far broader range of information than it did in past years."
"Our procedures continue to check applicants' names and fingerprints against records of individuals known to be security threats, including the terrorist watchlist, or of law enforcement concern... These checks are vital to advancing the U.S. government's twin goal of protecting the world's most vulnerable persons while ensuring U.S. national security and public safety," the statement said.
The government attorney tried to say that this situation had caused President Obama to ban Iraqi refugees for 6 months, but that didn’t actually happen.
Former Obama administration official Jon Finer denied that any ban in Iraqi refugee admissions was put in place under Obama. “While the flow of Iraqi refugees slowed significantly during the Obama administration’s review, refugees continued to be admitted to the United States during that time, and there was not a single month in which no Iraqis arrived here,” he wrote in Foreign Policy. “In other words, while there were delays in processing, there was no outright ban.”
…
Another former official, Eric P. Schwartz, the assistant secretary of state for population, refugees and migration at the time, also told The Fact Checker that Trump’s statement is false:
“President Obama never imposed a six-month ban on Iraqi processing. For several months in 2011, there was a lower level of Iraqi resettlement, as the government implemented certain security enhancements. Indeed, as we identified new and valuable opportunities to enhance screening, we did so. Nobody should object to a continual effort to identify legitimate enhancements, but it is disreputable to use that as a pretext to effectively shut down a program that is overwhelmingly safe and has enabled the United States to exercise world leadership. In any event, there was never a point during that period in which Iraqi resettlement was stopped, or banned.”
Instead of banning the refugees, again as they had with the visa waiver program, the Obama Administration increased security and vetting — but they didn’t just implement a halt to all travel.
So if the vetting has already been improved by Obama, why exactly does Trump need to do that again?
There was the idea presented by Judge Clifton that if you don’t ban every Muslim, it doesn’t matter if you’re banning some of them even with the specific intent of targeting radical Islamic terrorism. This prompted my favorite response by the Washington Solicitor General.
Purcell:"To prove religions bias, the order doesn't have to harm all Muslims or only Muslims."
Exactly. Majority Muslim nations who haven’t attacked us are the target, while there’s special dispensation granted from “minority” religions which would of course include Christian refugees. It’s discriminatory on it’s face.
Another issue that was discussed is the fact that the Immigration and Naturalization Act makes it illegal to discriminate not just based on religion, but also based on national origin. One judge when questioning the Washington Solicitor General tried to make a particularly specious argument that since previous Presidents have made specific immigration decisions about specific countries in the past and not run afoul of this law as that should be the case here.
But he’s wrong about that.
The Immigration and Nationality Act of 1965 banned all discrimination against immigrants on the basis of national origin, replacing the old prejudicial system and giving each country an equal shot at the quotas. In signing the new law, President Lyndon B. Johnson said that “the harsh injustice” . P.of the national-origins quota system had been “abolished.”
But the president ignores the fact that Congress then restricted this power in 1965, stating plainly that no person could be “discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth or place of residence.” The only exceptions are those provided for by Congress (such as the preference for Cuban asylum seekers).
The key issue here is being “discriminated against”, in other words when President Carter granted Visas to the Vietnamese Boat people, or President Clinton allowed refugees from Haiti to enter or President Obama implemented the DACA program, or revising the Cuba “wet foot/dry foot” policy which formerly benefits refugees who managed to physically get to U.S. shores prior to the re-opening of diplomatic relations with that country — none of those discriminate against those persons based on the their national origin, it either granted and removed a benefit over and above the basic visa & refugee process.
Trump is discriminating against people from those 7 countries, which is illegal, period.