Trump's new travel ban rectifies some concerns, raises new ones

President Donald Trump walks to speak to reporters as he walks to board Marine One on the South Lawn of the White House, Wednesday, Sept. 27, 2017, in Washington. (AP Photo/Evan Vucci)

President Donald Trump’s latest attempt to bar entry by travelers and immigrants from countries he has deemed to pose a national security threat is on firmer legal ground than his previous executive orders, according to experts, but critics are prepared to take the administration to court again to prove that discriminatory intent cannot be washed away.

On Sunday, Trump issued a “Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats,” the third iteration of a policy that critics have derided as an unconstitutional “Muslim ban” but supporters insist is a necessary step to keep the country safe.

Trump has been playing defense over his desire to bar Muslims from the country since he first proposed the idea in December 2015. Within a week after taking office, he signed an executive order temporarily blocking entry for residents of seven Muslim-majority countries, though visitors and immigrants from dozens of others were allowed.

After a weekend of chaos and protests at the nation’s airports as officials struggled to implement the order with little guidance from Washington, several states challenged the order in court, successfully securing injunctions.

Trump issued a revised order in March, removing Iraq from the list of banned countries and clearly exempting permanent residents and visa holders. It was again successfully challenged by attorneys general in several states.

In June, the Supreme Court granted Trump a partial victory, allowing him to enact the ban for 90 days with regard to travelers from those six Muslim countries who did not have a “bona fide relationship” with a person or entity in the U.S. That ban expired Sunday, the same day Trump signed the proclamation.

Oral arguments before the Supreme Court were scheduled for October 10, but the hearing has been canceled. The federal government and those opposing the ban have been asked to submit briefs by October 5 on whether the legality of the March order is now moot.

The March order also included restrictions on refugee admissions that were allowed to proceed by the Supreme Court. Those restrictions are set to expire in October and new rules are expected before then.

There are a number of changes in Sunday’s proclamation, most notably that it does not include an expiration date like the previous attempts to impose 90-day bans. This one would be indefinite until the administration determines a country is in compliance with vetting requirements.

Also significant, the new version of the ban is not limited to Muslim-majority countries. Five Muslim countries—Iran, Libya, Somalia, Syria, and Yemen—are carried over from the previous orders, but Chad—a country with a 52 percent Muslim majority—Venezuela, and North Korea have been added.

The proclamation treats each country differently, specifying to some degree why each is included and breaking down what classes of visas are impacted and what exemptions apply.

There are a number of broad categorical exceptions, but generally citizens of Chad, Libya, and Yemen will not be allowed to enter the U.S. on business or tourist visas. Iranians are barred from the country unless they have student or exchange visitor visas. All North Korea, Syrian, and Somali nationals are banned. The Venezuela restriction only applies to “officials of government agencies of Venezuela involved in screening and vetting procedures…and their immediate families.”

While the proclamation details where most of the countries are falling short of sufficient cooperation with vetting efforts, it specifically notes that Somalia does satisfy baseline information-sharing requirements. Other considerations led to its continued presence on the list, including “significant identity-management deficiencies.”

In addition to spelling out more explicitly why each country is on the list, the proclamation offers some clarification on how those placed on it can get off. Sudan, which was included in the two previous versions of the order, has been removed after complying with the administration’s demands.

“Restrictions should remain in place until such time as the Secretary of Homeland Security is satisfied, after consulting with the Secretary of State and the Attorney General, that the information necessary from that country to ensure the proper vetting and screening of its nationals has been made available and that doing so is in the security and welfare interests of the United States,” a fact sheet accompanying the proclamation states.

Trump struggled to explain why Sudan was cleared when pressed by reporters Wednesday.

“The people—yeah, the people allowed—certain countries—but we can add countries very easily and we can take countries away,” he said, adding that he wants “the toughest travel ban you can have.”

“At some point, the administration can say you have met the criteria that we think are necessary to assure the safety of the United States,” Ira Mehlman, media director for the Federation for American Immigration Reform, said Thursday. “There are things these countries can do to satisfy the concerns of the administration and get themselves off that list.”

Critics have argued the new additions to the list of banned countries are little more than a “fig leaf” to deflect claims of religious discrimination. A little over 100 people traveled to the U.S. from North Korea in 2016, and the restrictions on Venezuela are very narrowly drawn to affect only government officials.

The inclusion of Chad, a country with a slight Muslim majority and a track record of cooperation with the war against terrorism, has sparked confusion and anger from the Central African republic.

While recognizing that Chad is “an important and valuable counterterrorism partner,” the proclamation said that additional information sharing is necessary to ensure those applying for entry to the U.S. do not pose a risk.

“Chad does not adequately share public-safety and terrorism-related information and fails to satisfy at least one key risk criterion,” it states. “Additionally, several terrorist groups are active within Chad or in the surrounding region, including elements of Boko Haram, ISIS-West Africa, and al-Qa'ida in the Islamic Maghreb.”

According to the New York Times, Trump put Chad on the list on the advice of Acting Homeland Security Secretary Elaine Duke. Officials at the Departments of Defense and State who have worked with the Chadian government on counterterror operations were not consulted and were not pleased.

Mehlman deferred to terrorism experts on whether immigrants and visitors from Chad or North Korea pose a legitimate security threat, but he emphasized that is ultimately the president’s decision to make.

“The courts have given the office of the president broad latitude in determining national security matters and protecting national security interests,” he said. “I’m not in a position to second-guess the threat that might be posed by these countries.”

A CATO Institute study found that between 1975 and 2015, only nine people from these eight countries are known to have carried out or planned an attack in the United States, and none have committed a fatal terrorist act.

No new lawsuits have been filed over the new order yet, but immigrant advocates and civil rights groups have indicated that they will not back down and they do not view this proclamation differently than the previous orders.

“This last-minute action led the court to postpone the argument so the parties could submit briefs on whether the new order renders the government’s appeal moot,” American Civil Liberties Union Legal Director David Cole said in a blog post. “In our view, this third version of the ban is still a Muslim ban, and still illegal.”

“We vowed to fight the Muslim ban in all of its iterations,” Mariko Hirose, litigation director for the International Refugee Assistance Project, said in a statement. “The president’s most recent proclamation is merely a continuation of the Muslim ban executive order, and we plan to continue to challenge the government’s discriminatory and unconstitutional policy in any way we can.”

“We will continue to stand with our fellow plaintiffs in opposition to Muslim ban 3.0,” said Beth Baron, president of the Middle East Studies Association. “This most recent iteration of the ban continues to harm our student and faculty members by disrupting travel, research, and the free exchange of ideas. It is grounded in unconstitutional discrimination against Muslim Americans and violates our core beliefs.”

A “#NoMuslimBanEver” campaign backed by dozens of advocacy groups has planned events across the country from early September leading up to a “national mobilization” in Washington, D.C. on October 18, the date Trump’s new proclamation takes effect.

“The addition of non-Muslim majority countries to the ban, namely North Korea and Venezuela, does not negate its inherent anti-Muslim intent,” the campaign website states. “It also affirms the white supremacist, exclusionary policies of the Trump administration that discriminate on the basis of faith, national origin, and immigration status.”

Mehlman dismissed such allegations of discrimination, insisting that “it was never a Muslim ban in the first place.”

“It was never about the religion of the people from the affected countries in the first place,” he said. “These were countries of concern that were designated by the Obama administration.”

Though many of the efforts to block the previous ban and the related court rulings have rested heavily on Trump’s anti-Muslim campaign rhetoric, Mehlman argued that position is misguided.

“The justification has to be based on what the sitting chief executive and the administration judge to be in the security interests of the U.S., not based on something he said during the campaign,” he said.

Even some who remain opposed to the travel ban policy because they consider it either discriminatory or ineffective acknowledge that the latest revisions could be sufficient to survive inevitable legal challenges.

“This is how you ban people based on their religion and country of origin without setting off a constitutional firestorm,” Elie Mystal wrote in a post for Above the Law on Monday. “If we had started here, there would be a lot of legal challenges and consternation, but this would probably sneak through divided courts without too much trouble.”

Trump’s past words and his two previous attempts to target only Muslim-majority countries still hang over the debate, forming a cloud that is unlikely to dissipate before this proclamation is weighed in court.

"If this had been travel ban 1.0, it would have been bullet-proof," Peter Spiro, an immigration law professor at Temple University, told Bloomberg Politics. "The combination of Trump’s anti-Muslim comments and the completely blundering way in which the first order was issued make the new action much more vulnerable than it would otherwise be."

Some of the president’s critics are confident they can prevail despite the changes.

“Six of President Trump's targeted countries are Muslim,” ACLU Executive Director Anthony Romero said in a statement. “The fact that Trump has added North Korea — with few visitors to the U.S. — and a few government officials from Venezuela doesn't obfuscate the real fact that the administration's order is still a Muslim ban. President Trump's original sin of targeting Muslims cannot be cured by throwing other countries onto his enemies list.”

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