Candice Malcolm: ANALYSIS: Trump’s Executive Order on Immigration, the good, the bad, the awful

american-1747357_640.jpg

There is a lot to unpack in Donald Trump’s executive order (EO) on immigration and refugees, entitled: Protecting the Nation from Foreign Terrorist Entry into the United States. The order includes a 120-day pause on the admission of all refugees, a 90-day pause on entry into the United States for people from seven countries, and other measures aimed to increase national security, the screening and interview process, data collection and the admissions process. 

Despite the rhetoric, the EO is not a Muslim ban. The vast majority of the world’s Muslims, including all American Muslims, will not be directly affected by this order. The EO is a ban on all refugees for the next four months, and a ban on all citizens of Iran, Iraq, Syria, Libya, Yemen, Somalia and Sudan for the next three months. The ban includes all nationals of these seven countries, including Muslims, Christians, Jews, atheists and all other religious minorities. The order does not list any religion, nor does it ban people from the world’s most populous Muslim countries such as Indonesia, Malaysia, India or Turkey. It is unhelpful, however, that the son of Trump’s national security advisor, Mike Flynn Jr., celebrated the order on Twitter, using #MuslimBan. It is difficult to defend against accusations of a “Muslims ban” while key members of Trump’s inner circle are flippantly calling it a Muslim ban. 

The directive was aimed to increase security and screening for people from a region that has been plagued with terrorism, violence and Islamist extremism. However welcome action is on this front, the executive order goes too far. It is too broad, too blunt, and will have far-reaching and adverse consequences. In light of the dramatic and hyperbolic reaction, it is useful to highlight the positive aspects of the EO, while also criticizing the problematic and unhelpful aspects.

 16386983_1205862812834783_6449733146681085856_n.png

The Good

Section 5 of the order states that the U.S. will “suspend the U.S. Refugee Admissions Program (USRAP) for 120 days.” The stated purpose of this order is to stop admitting any and all refugees while the administration works on improving its vetting and security process. Fair enough. The current system has proven that it is not adequately able to stop nefarious and problematic individuals from entering the United States. When individuals are fleeing war zones and failed states, the United States does not have the capability or information to determine if a person is who they say they are. The U.S. can and should take steps to improve its ability to collect clear information and insight for the people it admits. There should be more steps taken to screen and vet newcomers, particularly those fleeing hotspots for terrorism, cultural violence and Islamist extremism.

A temporary ban on refugees from the Middle East is justifiable, however it is unclear why the ban needs to apply to all refugees. The United States, like all other Western countries, has an obligation to accept and resettle refugees. It is disappointing that the United States will cease to uphold this obligation for the next four months.

It’s also worth noting that the ban applies to all refugees, both those resettled through international organizations and landed asylum seekers. When an individual or family arrives on U.S. soil and asks for asylum and protection, even if they are a bona fide refugee with evidence of persecution, according to this order, that United States will reject and deport them back to an unsafe country. Section 5 (e) states that “the Secretaries of State and Homeland Security may jointly determine to admit individuals to the United States as refugees on a case-by-case basis.” Given the number of landed asylum seekers who arrive each year, upwards of 80,000 per year, it is difficult to fathom how this will work, logistically and practically.

Section 5 (d) states that, following the pause, the U.S. will admit no more than 50,000 refugees per year, and section 5 (f) purports to prioritize individuals who are fleeing religious persecution. That is a welcome step. The United States has shown that it is unable to process a massive volume of refugees properly. It is useful for the U.S. government to cut back while it fixes its process for vetting refugees.

Another positive aspect of the EO is a directive to not only screen individuals for security red flags, but also for  violent and radical cultural attitudes and values. Section 1 of the EO directly states that newcomers must accept and embrace our Western values:

“In order to protect Americans, the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles. The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law. In addition, the United States should not admit those who engage in acts of bigotry or hatred (including “honor” killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.”

The EO calls for important improvements to the screening process, and Section 4 spells out these improvements. While we should remain skeptical of how the government plans to evaluate some of these measures, these are necessary changes, including: " the development of a uniform screening standard and procedure, such as in-person interviews; a database of identity documents proffered by applicants to ensure that duplicate documents are not used by multiple applicants; amended application forms that include questions aimed at identifying fraudulent answers and malicious intent; a mechanism to ensure that the applicant is who the applicant claims to be; a process to evaluate the applicant’s likelihood of becoming a positively contributing member of society and the applicant’s ability to make contributions to the national interest; and a mechanism to assess whether or not the applicant has the intent to commit criminal or terrorist acts after entering the United States.”

Finally, the Section 8 (a) and (b) reinforce a previous law that requires all individuals seeking a residency visa to undergo an in-person interview. This is excellent. All individuals wishing to migrate should be required to have an in-person security interview, they should be tested by an immigration officer to determine the person is being honest and is a good fit for migration. From a logistical perspective, the interview process will actually help speed up the immigration process, since the applicant can directly answer any questions an immigration official may have about person’s application and personal history. This is another welcome improvement to the system.

 16252177_1205839942837070_3279515348428920758_o.jpg

The Bad

This EO contains measures that are helpful, some measure that go too far, and some measures that don’t go far enough. One area where the order does not go far enough is Section 3, which bans nationals from seven countries: Iran, Iraq, Syria, Libya, Yemen, Somalia and Sudan. These seven countries are all run by Islamist fundamentalists, or have sizable insurgencies of Islamist terrorists. They are either failed states or enemy nations. But the reach of Islamist extremism extends far beyond these seven countries. The EO explicitly ties its actions to the 9/11 terrorist attacks, whose attackers were legally admitted into the United States with student and temporary visas. 9/11 is part of the stated rationale for the ban. But the ban doesn’t apply to any of the countries where the terrorist hijackers originated from, namely Saudi Arabia, but also Egypt, Lebanon and the United Arab Emirates. Many have pointed to San Bernardino terrorist Tashfeen Malik, herself a green card holder, as rationale for barring permanent residents. But Malik was from Pakistan, another country not on the list.

Senators Jeff Sessions and Ted Cruz released a detailed report earlier this week on the 580 individuals convicted of terrorism charges in the United States since 2001. At least 380 of those individuals were born outside the U.S., with the largest terrorists-producing countries being: Pakistan (62), Lebanon (28) and the Palestinian territories (22). None of these countries are included in the ban. Of the deadliest Islamist terrorist attacks that have occurred on U.S. soil in recent years, the Boston Marathon bombing and massacres in Orlando and San Bernardino, this ban would not have prevented the perpetrators (or their parents in the case of second generation terrorists) from entering the U.S. 

If Trump wants to ban migration from problematic countries that produce Islamist terrorists and ideological extremists, he should have included countries like Saudi Arabia, Pakistan and the Palestinian territories in this ban. That he didn’t is puzzling, and undermines the national security rationale behind this EO.

There has been confusion and contradictory statements over whether this ban applies to dual citizens – people who were born in one of the seven countries but fled and received citizenship in another country. The U.S. State Department has said the ban applies to dual citizens, while Trump’s National Security advisor Mike Flynn told Canada’s Prime Minister’s Office that Canadians will not be affected. If a person was born in Libya but moved to Canada, became a Canadian citizen, and travels using a Canadian passport, it is unclear whether this person would be denied entry. Surely a test case will emerge in the coming days, and we will see how the law is applied. (Disclosure: my husband falls into this category. We have spoken to several immigration lawyers and practitioners, who all believe he would be denied entry in the U.S. because of this ban.)

 passport-315266_640.jpg

The Awful

Perhaps the most troubling aspect of this law is that it denies lawful visa holders and permanent residents, also known as green card holders, from re-entering the United States. While the executive order does not specifically mention U.S. permanent residents, it has been widely reported that the White House directed the Department of Homeland Security to include green card holders from these seven countries in the bar from entering the United States.

Section 3 (c) of EO prevents nationals from the seven countries from entering or obtaining an immigrant or non-immigrant visa, meaning they cannot visit the United States, obtain a work or student visa, or change their status in the United States. The wording of this order is clunky – simply saying the US will “suspend entry” for these nationals.

There is a difference between increased screening and a flat-out ban. This is a ban that will turn away lawful residents at the border. This is problematic.

The U.S. has every right to stop new applications from being approved, and prevent people from known terrorist regions from obtaining visas to come to the United States. But this ban also applies to people already in the United States, people who already possess visas and are lawful residents.  If a person’s visa happens to expire in the next 90 days, they will not be granted a new visa. They will be forced to leave the country, even if they have a job, a home, a family or are enrolled in a school program in the United States. Families will be separated. People will lose their livelihood. Good people—law-abiding, pro-Western people who have never broken a law and have followed America’s immigration system to a T—will be sent away, for no good reason.

Another troubling aspect of this order is how it defines nationality. While the order justifies this ban because the U.S. cannot trust or verify information coming from these seven countries, it simultaneously relies on these seven countries to verify who is a citizen. If a person was born in Iran, they will be treated as an Iranian national, even if that person fled Iran and no longer considers himself a citizen. Iran does not recognize dual citizens, it prevents its citizens from renouncing citizenship, and it considers anyone born in Iran or born to an Iranian father to be a citizen. The U.S. is abiding by these bizarre definitions, the laws and regulations of an Islamic terror state.

Like any broad government edict, this order will have adverse and far-reaching negative consequences. Perhaps the most troubling aspect is that the United States will turn away and deport people who are otherwise friendly, pro-Western allies. Both Muslims and non-Muslims from countries that are fundamentally at odds with the United States will be forced to go back to adversarial countries, where they will face persecution or even death.

If the order is upheld, the U.S. will deport some of the world’s leading nuclear physicists back to Iran, a country actively pursuing a militaristic nuclear program. Rather than studying and working at Harvard in partnership with America, these physicists will be sent back to Iran, where they will likely be forced to work for the Islamic regime’s illegal and immoral nuclear program.

 american-flag-825730_640.jpg

Conclusion

The United States can and should take measures to improve national security and protect its borders. Immigrants should be screened and interviewed. Extreme vetting of refugees and migrants from terrorist hot spots should take place.

More steps should be taken to ensure that newcomers are properly screened and vetted, both for affiliation with terrorist groups but also for values and ideology.

Western countries should reject individuals who hold views and have values contradictory to our values and founding principles. Vetting and screening should be done to ensure those selected will embrace Western values and integrate into Western society.

Trump’s EO, however, is both too broad and not far-reaching enough. The vagueness and lack of clarity in this order is counter to the rule of law. The EO breaks a 1965 law that prohibits discrimination based on country of origin, and the fact that it bypasses Congress contradicts the constitution. Its blanketed and arbitrary application undermines our liberty.

The President’s order, as it is currently written may or may not help make America safer. It may prevent a hostile visitor from entering the U.S., it could also force a highly-trained nuclear physicist to leave Boston on a deportation flight for Tehran.

As it stands, the president’s order threatens to embolden America’s adversaries, and alienate fair-minded Americans who support common-sense immigration security reform. It helps enemy nations and terrorist organizations in their messaging and recruitment.

While some components of the EO are reasonable and welcome, other aspects contradict and undermine its usefulness. Conservatives, and all fair-minded people, should demand revisions and urge that the blanket ban of lawful residents in Section 3 be dropped. Until we see these critical improvements, conservatives cannot celebrate or defend the President’s order.