President Donald Trump issued a new version of his travel ban today with changes designed to help it withstand legal scrutiny and un-ruffle the feathers of a key ally in the fight against precisely the sort of terrorism the policy was supposed to protect us from. But Muslim Ban 3.0 is just as un-American as its predecessors and just as unlikely to make us safer.
During the campaign, Mr. Trump called for a "total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on." Faced with the clear unconstitutionality of a religious test for entry into the country, President Trump in January signed an executive order halting refugee admissions from any nation for 120 days and from Syria indefinitely, and barring entry from citizens of seven predominantly Muslim nations — Iraq, Iran, Syria, Somalia, Libya, Yemen and Sudan. Initially, green card holders were included in the ban, but amid chaos at airports in the U.S. and worldwide, the administration backed away from that stance.
A federal judge from Washington State halted implementation of the ban pending further legal proceedings, and an appellate court agreed. The courts found clear evidence of discriminatory intent on the president's part — not just from campaign talk of a Muslim ban but also from his promises to expedite entry for Middle Eastern Christians — and no evidence that the policy was tailored to address any particular threat. Indeed, an internal Department of Homeland Security assessment, first reported by the Associated Press, undercut the national security rationale for the policy. It found "country of citizenship is unlikely to be a reliable indicator of potential terrorist activity," that terrorist groups in most of the affected countries are focused regionally and not on the U.S., and that those who have carried out attacks against the U.S. come from a wide array of other countries with very little threat from those seven.
Today's third iteration of the president's policy removes Iraq from the list — ostensibly because officials agreed to work out a mutually agreeable system for vetting travelers and for repatriating any who are deported. In reality, both the State Department and Department of Defense have been lobbying to remove Iraq from the list since it is our most crucial ally in the fight against ISIS. Now only citizens of the remaining six countries will be subjected to a blanket, 90-day ban on the issuance of new visas. The new order clarifies that green card holders will be allowed to enter the U.S. from abroad — a key sticking point in the legal case — as will those who already hold valid visas, and it applies a uniform, 120-day stop to admissions of all refugees, including Syrians. The preference for Middle Eastern Christians is gone.
As for the security question, the White House is publicizing the existence of 300 federal terrorism-related investigations into people who entered the U.S. as refugees. But the existence of investigations doesn't tell us much. Does that represent a sudden increase in such investigations? How many are related to people who came from the six targeted nations? Are these recent arrivals in the U.S. who might have been caught by more stringent vetting, or are they people who have become radicalized while in here? The fact remains that refugees have always been subject to far stricter scrutiny than ordinary visa applicants, and they have had virtually no role in any terrorist attacks in this country.
Just like President Trump's proud insistence on using the phrase "radical Islamic terrorism" despite the advice of experts from both parties, including his own national security adviser, his travel ban drives a wedge between the United States and the Muslim-majority nations whose help we need to attack real threats like ISIS and to resolve the humanitarian disaster and destabilizing force that is the Syrian civil war. The Trump administration can insist, as it does, that the policy is not a Muslim ban because it does not apply to hundreds of millions of Muslims worldwide. But Muslim people throughout the world, not to mention their leaders, can connect the dots between President Trump's rhetorical intimations that the United States is at war with Islam and the various iterations of this executive order.
We expect that American courts will be able to connect the dots, too, and stop this order just as decisively as they did the first.