By Benjamin Wittes for Lawfare
Say this for President Trump: If he lacks the sense or decency to refrain from obsessively tweeting about kneeling football players when millions of Americans are facing devastation Puerto Rico, he sure is keeping us safe from the Chadian menace. If he is incompetently flailing in response to Kim Jong Un’s missile program, at least he’s keeping from American shores the hordes of North Koreans who would otherwise be invading by means profligate and unvetted immigrant and non-immigrant visas.
Don’t you feel safe?
I don’t purport to know whether the latest presidential proclamation barring entry to the United States by most nationals of several Muslim countries—as well as those of North Korea, and government officials from Venezuela—is lawful or not. Russell Spivak summarized the president’s action, whose legality Josh Blackman defends and Peter Margulies questions. Eventually, I suppose I’ll have to have an opinion on the matter. As the inevitable litigation winds its way through the courts in the coming months, I will have to decide whether I think it is a lawful or unlawful exercise of presidential authority under the Immigration and Nationality Act. For the present, however, I am hung up on an antecedent, pre-legal point: This is inane, stupid policy designed to trade on the politics and symbolism of national security without actually delivering any tangible national security goods.
Trump has been pretty explicit that toughness is a goal in and of itself in his approach to these matters. He has articulated little in the way of a coherent theory of how keeping out people from these particular countries—but not individuals from other countries—will materially improve the security of Americans. To the extent that he has done so, he has lied about the relationship between foreign entrants into the United States and terrorist crimes committed here. The countries affected by Trump’s orders are not the countries of greatest concern from a counterterrorism perspective. So even before considering the law, it is worth emphasizing that there simply is no clamor among national security professionals for these sorts of restrictions, which many such professionals see as counterproductive in their overbreadth. That’s before getting into the negative impact such measures have on the lives of real people. In other words, before even getting into whether it’s lawful, which is a hard question, let’s a pause a moment to say something more basic, which doesn’t involve any hard question: It’s wrong.
The past two administrations did not do things like this. Even the most aggressive, controversial counterterrorism actions of the Bush administration were not theatrical exercises in demagoguery. Lest people forget, the CIA detention and interrogation program was done in secret until, years later, it was disclosed against the government’s will. Whatever one thinks of it, there simply is no question that the people responsible for it—up and down the executive-branch chain of command—had a coherent theory of how the actions they were taking would materially improve the U.S. response to al-Qaeda. What’s more, the pursuit of that theory, whatever brutality it may have included, involved mistreatment of people the CIA regarded (in good faith and in almost all cases correctly) as high-value al-Qaeda operatives. I don’t want to get into the merits or propriety of the program, but there is no doubt that it was launched and conducted in a genuine and sincere—however misguided—effort to protect the country.
Can anyone say the same with confidence about Trump’s conduct with respect to the travel bans—up to and including this latest proclamation? Can anyone articulate a coherent theory explaining how keeping five-year-old Syrians and Chadians—but not military-age Iraqis or Malians—out of this country on a near-categorical basis will make anyone in the U.S. more secure? I’m not asking here whether, as Blackman suggests, the administrative record is adequate to cure any legal taint associated with Trump’s noxious statements or what sort of presumptions of regularity or deference the president might be entitled to. I’m asking something far more tectonic: Is there even a plausible theory under which this policy makes sense?
I don’t think there is. The proclamation touts a certain rigor of process in deciding which countries to exclude:
- I ordered a worldwide review of whether, and if so what, additional information would be needed from each foreign country to assess adequately whether their nationals seeking to enter the United States pose a security or safety threat. This was the first such review of its kind in United States history. As part of the review, the Secretary of Homeland Security established global requirements for information sharing in support of immigration screening and vetting. The Secretary of Homeland Security developed a comprehensive set of criteria and applied it to the information-sharing practices, policies, and capabilities of foreign governments. The Secretary of State thereafter engaged with the countries reviewed in an effort to address deficiencies and achieve improvements. In many instances, those efforts produced positive results. By obtaining additional information and formal commitments from foreign governments, the United States Government has improved its capacity and ability to assess whether foreign nationals attempting to enter the United States pose a security or safety threat. Our Nation is safer as a result of this work.
- Despite those efforts, the Secretary of Homeland Security, in consultation with the Secretary of State and the Attorney General, has determined that a small number of countries—out of nearly 200 evaluated—remain deficient at this time with respect to their identity-management and information-sharing capabilities, protocols, and practices. In some cases, these countries also have a significant terrorist presence within their territory.
As Spivak summarized Monday:
- The Department of Homeland Security created a baseline for each nation to meet, then “measured each country’s performance” against it. Sixteen countries were found to be deficient, with 31 others found to be “at risk” of becoming deficient. “The Secretary of State thereafter engaged with the countries reviewed in an effort to address deficiencies and achieve improvements,” which resulted in what the administration found to be sufficient improvement. Ultimately, the secretary of homeland security concluded that “a small number of countries”—seven—remained deficient despite the government’s engagement: Chad, Iran, Libya, North Korea, Syria, Venezuela and Yemen. The president accepted the secretary’s submission of all seven.
So let’s assume the administration’s account of its process is accurate. The result is still a system in which a one-year-old Libyan baby, a North Korean defector who wishes to to give a lecture in the United States on her nation’s gulag camps, or a Chadian man who marries an American in France are all presumptively regarded as too dangerous to admit. Some Iranian students are okay, but normal folks visiting family in Los Angeles are, without a waiver, verboten.
I can think of no reasonable counterterrorism strategy in which this approach makes any sense whatsoever.
And neither can Trump. He doesn’t even really try. What is his theory of the case? As he put it, “The travel ban: the tougher, the better.”
I don’t think it is an accident that this iteration of the travel ban emerged on a Sunday evening—not the time of day or week the White House normally releases policy initiatives of which it is proud. Because while it’s gross stuff, it’s also thin gruel. Dirty little secret: It’s not all that tough, just mean.
During the campaign, Trump promised “a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what the hell is going on.” Travel ban 1.0 featured no waivers, applied to lawful permanent resident aliens who happened to be overseas, and caused chaos at airports and great hardship for individuals mid-transit. Trump was very proud of it.
The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to S.C.
— Donald J. Trump (@realDonaldTrump) June 5, 2017
This version is still more modest in certain respects. And it emerged in the darkest period of the news cycle, while the president was busy raging at the NFL. At some level, he seems to know that the best he can do now are the walked-backed, stale leftovers of yesterday’s national security demagoguery. Think cold pizza.