The following is adapted from my forthcoming book, Words on Fire: The Power of Incendiary Language and How to Confront It, out in June and available for pre-order now.
One week into his presidency Donald Trump put in place a policy in keeping with the
“total and complete” ban of Muslims he had proposed during the campaign. With little warning, Trump signed an executive order banning all immigration for ninety days from seven majority-Muslim nations: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.
Trump’s lawyer Rudy Giuliani advised Trump that to pass constitutional muster the ban
could not make reference to religion, but it could make reference to geography. So Trump and his supporters tried to avoid religious references in defending their travel ban.
The executive order, titled “Protecting the Nation from Foreign Terrorist Entry into the United States” was confusing and inconsistent. At the signing, Trump invoked 9/11 and suggested that keeping out people from these seven countries was vital to prevent another such attack. He began with a reference to terrorists, but also acknowledged that there could be people who support and love tthe United States.
Even more confusing, the statement made reference to the 9/11 attack, but none of the 9/11 attackers had come from any of the countries Trump wanted to ban. The majority of them were from Saudi Arabia. What’s more, Iraq was on the list and Iraq was our ally in the fight against ISIS. The U.S. had thousands of troops stationed in that country, coordinating with Iraqis.
Several states and organizations sued, and judges across the country began to rule on the legality of the ban. The first ruling was from a federal judge in the Eastern District of New York, which includes JFK airport. He forbade the government from keeping out people from the banned countries who had legitimate visas.
Several days after the ban went into effect, the Acting Attorney General of the United States directed members of the Justice Department to not defend the ban in court. Sally Yates wrote that she considered the ban to be unconstitutional and unlawful:
“Consequently, for as long as I am the Acting Attorney General, the Department of Justice will not present arguments in defense of the Executive Order, unless and until I become convinced that it is appropriate to do so.”
The president promptly fired Yates. In a statement the White House said,
“The Acting Attorney General, Sally Yates, has betrayed the Department of Justice by refusing to enforce a legal order designed to protect citizens of the United States… Calling for tougher vetting for individuals traveling from seven dangerous places is not extreme. It is reasonable and necessary to protect our country. Tonight, President Trump relived Ms. Yates of her duties.”
Yates had not objected to tougher vetting.
Vetting is a comprehensive assessment of an individual. The executive order prohibited all people of a particular national origin from entering while the appropriate government agencies figured out how to do stronger vetting.
Trump conflated vetting and the ban when he fired Yates and afterward. So did White House Press Secretary Sean Spicer:
“It’s not a travel ban. It’s a vetting system to keep America safe – that’s it, plain and simple. And all of the facts and a reading of it clearly show that that’s what it is.”
The president weighed in with a tweet:
“Everybody is arguing whether or not it is a BAN. Call it what you want, it is about keeping bad people (with bad intentions) out of the country!”
The Department of Homeland Security, which administered the travel ban, initially said
that the ban included permanent residents in the United States from the seven named countries. It even revoked the green cards of a number of green card holders trying to re-enter the country.
On February 1, the executive order was amended to exclude lawful permanent residents from the ban.
That same day a federal judge in Seattle issued a temporary yet far-reaching restraining order that applied to the whole nation, suspending he travel ban completely.
President Trump published a number of tweets attacking the judge, including:
“Because the ban was lifted by a judge, many very bad and dangerous people may be pouring into our country. A terrible decision.”
The federal government appealed, claiming that the judge had no jurisdiction to rule on the validity of an executive order.
“Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!”
The judge’s life was threatened in the days immediately following this tweet.
A number of former Obama Administration national security experts, including former secretaries of sate and defense and former heads of intelligence agencies, filed a motion with the appellate court reviewing the government’s appeal, saying they were unaware of any specific threat that would justify a travel ban, and that the executive order undermined the safety of the United States.
Since 9/11, they said, not a single terrorist attack in the U.S. was committed by someone from one of the seven named countries. They wrote,
“The overwhelming majority of attacks have been committed by US citizens”
They concluded that although the executive order, on its face, was meant to prevent acts of terrorism, it was in fact about group identity and religion, and was “beneath the dignity” of the nation and Constitution.
On February 9, the appeals court upheld the lower court ruling. The New York Times called the decision:
“a sweeping rebuke of the administration’s claim that the courts have no role as a check on the president. The three-judge panel, suggesting that the ban did not advance national security, said the administration had shown ‘no evidence’ that anyone from the seven nations … had committed terrorist acts in the United States.”
The next day on Air Force One the president, refused to concede defeat.
“We’re going to have very, very strong vetting, I call it extreme vetting, and we’re going to have very strong security in our country.”
Several days later the architect of Trump’s immigration policy, White House adviser
Stephen Miller, went on FoxNews.
He declared that the appeals court decision was improper and, as the White House had done earlier, incorrectly cited the San Bernardino terror attack, among others, as justification for the travel ban.
FoxNews host Chris Wallace recognized the lone-wolf whistle Trump sent about the Seattle judge and called out the president’s aide to account for it.
Wallace: “So the question is, if something happens to him, should we blame President Trump?
Miller: This is one of the most ludicrous things that the media does where when any crazy person in this country issues a death threat, that they then blame a politician or a public official. That is reckless and irresponsible and should never be done. The reality is—
Wallace: But some people would say that personally attacking a judge is reckless and irresponsible. In fact, your own Supreme Court nominee, Judge Gorsuch, called it disheartening and demoralizing.
Miller: Statements that you can’t criticize a judge demonstrate a profound misunderstanding of what it means to have separate and equal branches. Of course one branch can criticize another branch of government. It is ludicrous to say that Congress can criticize the president and judges can criticize the president, but the president can’t criticize judges.”
Miller was committing misdirection and creating a false equivalence.
The judge hadn’t criticized Trump. Rather, he had made a legal ruling in a case. Trump did not merely criticize the judge. He used incendiary language falsely accusing the judge of allowing terrorists into the country and claimed that it would be the judge’s fault if there were to be another terror attack.
The week after the appeals court ruling, a federal judge in Virginia ruled against the
administration and ordered that the ban not be enforced, because the ban singled out religion, with national security as a pretext. The judge cited statements by both the President and Giuliani. The injunction read, in part,
“The “Muslim Ban” was a centerpiece of the president’s campaign for months, and the press release calling for it was still available on his website as of the day this [ruling] is being entered. The president connected that policy to this EO when, asked last July if he had abandoned his plan for a Muslim ban, he responded “Call it whatever you want. We’ll call it territories, OK?” Giuliani said two days after the EO was signed that Trump’s desire for a Muslim ban was the impetus for this policy.”
On March 6, the president revoked his travel ban and replaced it with a new one to be
effective ten days later. It was similar to the previous ban.
The state of Hawaii sued. The day before the second ban was to take effect the judge
issued a restraining order, saying:
“The illogic of the Government’s contentions is palpable. The notion that one can demonstrate animus toward any group only by targeting all of them at once is fundamentally flawed… Equally flawed is the notion that the Executive Order cannot be found to have targeted Islam because it applies to all individuals in the six referenced countries. It is undisputed, using the primary source on which the Government itself relies, that these six countries have overwhelmingly Muslim populations that range from 90.7% to 99.8%. It would therefore be no paradigmatic leap to conclude that targeting these countries likewise targets Islam.
These plainly worded statements, made in the months leading up to and contemporaneous with the signing of the Executive Order,and, in many cases, made by the Executive himself, betray the Executive Order’s stated secular purpose. Any reasonable, objective observer would conclude… that the stated secular purpose of the Executive Order is, at the very least, ‘secondary to a religious objective’ of temporarily suspending the entry of Muslims.”
The next day a court in Maryland, also issued a restraining order against the second
ban. The judge wrote:
“While the travel ban bears no resemblance to any response to a national security risk in recent history, it bears a clear resemblance to the precise action that President Trump described as effectuating his Muslim ban. Thus, it is more likely that the primary purpose of the travel ban was grounding in religion, and even if the Second Executive Order has a national security purpose, it is likely that its primary purpose remains the effectuation of the proposed Muslim ban.”
The government appealed. A federal appeals court ruled against the ban on May 25
2017, calling it intolerant and discriminatory, and the product of religious hostility.
The government appealed to the U.S, Supreme Court, which one month later upheld part of the ban but did allow nationals from those countries who have a genuine relationship with U.S. persons or institutions, such as an employer or university, to enter.
In September, Trump issued a third travel ban against people from Chad, Iran, Libya, Syria, Yemen, North Korea, and Venezuela. The addition of two countries wiht very small Muslim populations made this ban seem to be less about religion. And some nationals from some of those countries were permitted to enter the U.S.
The Supreme Court eventually upheld this third travel ban.
Words on Fire: The Power of Incendiary Language and How to Confront It, from which this column is adapted, is due in June and available for pre-order now.