Trump signs new travel ban aimed at withstanding legal scrutiny
By David Nakamura and Matt Zapotosky
The Washington Post|
Mar 06, 2017 | 4:00 PM
Trump signed the new executive order barring new visas for citizens from six Muslim-majority countries and shutting down the U.S. refugee program in private. http://bit.ly/2n6VKPR
President Donald Trump signed a new travel ban Monday that administration officials said they hope will end legal challenges over the matter by imposing a 90-day ban on the issuance of new visas for citizens of six majority-Muslim nations.
In addition, the nation's refugee program will be suspended for 120 days, and it will not accept more than 50,000 refugees in a year, down from the 110,000 cap set by the Obama administration.
Trump signed the new ban out of public view, according to White House officials. The order will not take effect until March 16, officials said.
The new guidelines mark a dramatic departure from Trump's original ban. They lay out a far more specific national security basis for the order, block the issuance of only new visas, and name just six of the seven countries included in the first executive order, omitting Iraq.
The order also details specific sets of people who would be able to apply for case-by-case waivers to the order, including those previously admitted to the United States for "a continuous period of work, study, or other long-term activity," those with "significant business or professional obligations" and those seeking to visit or live with family.
"This executive order responsibly provides a needed pause, so we can carefully review how we scrutinize people coming here from these countries of concern," Attorney General Jeff Sessions said in announcing that the order had been signed.
Even before the ink was dry, though, Democrats and civil liberties groups asserted that the new order was legally tainted in the same way as the first one: It was a thinly disguised Muslim ban.
"While the White House may have made changes to the ban, the intent to discriminate against Muslims remains clear," said New York Attorney General Eric T. Schneiderman, D, who had joined the legal fight against the first ban. "This doesn't just harm the families caught in the chaos of President Trump's draconian policies - it's diametrically opposed to our values, and makes us less safe."
Said Omar Jadwat, director of the ACLU's Immigrants' Rights Project: "The only way to actually fix the Muslim ban is not to have a Muslim ban. Instead, President Trump has recommitted himself to religious discrimination, and he can expect continued disapproval from both the courts and the people."
State Department, Homeland Security and Justice Department officials defended the new order as a necessary measure to improve public safety. They said the countries implicated - Iran, Sudan, Somalia, Libya, Syria and Yemen - were either state sponsors of terrorism, or their territories were so compromised that they were effectively safe havens for terrorist groups. Iraq was omitted, Secretary of State Rex Tillerson said, because it is an "important ally in the fight to defeat ISIS," and its leaders had agreed to implement new security measures.
A Department of Homeland Security official, speaking on the condition of anonymity on a call with reporters, said Iraq was "treated differently" in part because the country had agreed to "timely repatriation" of its citizens if they were ordered deported from the United States.
The new order provides other exceptions not contained explicitly in previous versions: for travelers from those countries who are legal permanent residents of the United States, dual nationals who use a passport from another country and those who have been granted asylum or refugee status. Anyone who holds a visa now should be able to get into the country without any problems, though those whose visas expire will have to reapply, officials said.
The order claims that since 2001, hundreds of people born abroad have been convicted of terrorism-related crimes in the United States, and that more than 300 people who entered the country as refugees were the subject of counterterrorism investigations. It cites two specific examples: Two Iraqi nationals who came to the United States as refugees in 2009, it says, were convicted of terrorism-related offenses, and in October 2014, a Somali native brought to the country as a child refugee was sentenced to 30 years in prison for plotting to detonate a bomb at a Christmas tree-lighting ceremony in Oregon. That man became a naturalized U.S. citizen.
"We cannot risk the prospect of malevolent actors using our immigration system to take American lives," Homeland Security Secretary John F. Kelly said.
U.S. officials declined to specify the countries of origin of the 300 refugees now being investigated in terrorism cases, and they declined to detail those people's current immigration status.
A Department of Homeland Security report assessing the terrorist threat posed by people from the seven countries covered by President Trump's original travel ban had cast doubt on the necessity of the executive order, concluding that citizenship was an "unreliable" threat indicator and that people from the affected countries have rarely been implicated in U.S.-based terrorism.
The Department of Homeland Security official, speaking on the condition of anonymity, criticized the report as being incomplete and not vetted with other agencies, and he asserted that the administration should not be pressed by the judiciary to unveil sensitive national security details to justify the ban.
"This is not something that the Department of Justice should have to represent to a federal district court judge," the official said.
The order represents an attempt by the Trump administration to tighten security requirements for travelers from nations that officials said represent a terrorism threat. A more sweeping attempt in January provoked mass protests across the country as travelers en route to the United States were detained at airports after the surprise order was announced. The State Department had provisionally revoked tens of thousands of visas all at once.
Officials sought to dismiss the idea that there would be any confusion surrounding the implementation of the new order. Officials said they delayed implementation so the government could go through the appropriate legal processes and ensure that no government employee would face "legal jeopardy" for enforcing the order.
"You should not see any chaos, so to speak, or alleged chaos, at airports. There aren't going to be folks stopped tonight from coming into the country because of this executive order. If they are, it's pursuant to our ordinary screening procedures," the Department of Homeland Security official said. "We're going to have a very smooth implementation period."
A federal district judge in Washington state first suspended the travel ban Feb. 3, and a three-judge panel of the U.S. Court of Appeals for the 9th Circuit later upheld that freeze.
That setback was a blow to the White House, which was criticized for failing to include lawmakers and stakeholders in its deliberations.
The revisions to the order will make it more defensible in court - limiting the number of people with standing to sue - though the changes might not allay all the concerns raised by judges across the country. The three-judge panel with the 9th Circuit Court of Appeals, for example, said that exempting green-card and current visa holders from the ban would not address their concern about U.S. citizens with an interest in noncitizens' travel.
The administration, too, will have to wrestle with comments by the president and top adviser Rudolph W. Giuliani that seemed to indicate the intent of the order was to ban Muslims from entering the United States, which could run afoul of the Establishment Clause of the First Amendment.
On the campaign trail, Trump called for a "total and complete shutdown of Muslims entering the United States." After the election, Giuliani, a former New York City mayor, said: "So when [Trump] first announced it, he said, 'Muslim ban.' He called me up. He said, 'Put a commission together. Show me the right way to do it legally.' "
A federal judge in Virginia referenced those comments in ordering the ban frozen with respect to Virginia residents and institutions, calling it "unrebutted evidence" that Trump's directive might violate the First Amendment.