US President Donald Trump on Friday signed an executive order titled Protecting the Nation from Foreign Terrorist Entry into the United States that puts a four-month hold on allowing refugees into the United States. It also temporarily barred travellers from Syria, Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.
Confusion abounded at airports as immigration and customs officials struggled to interpret the new rules. Some legal residents with green cards, who were in the air when the order was issued, were detained at airports upon arrival. Thousands of refugees seeking entry were thrown into limbo.
But what does Trump say are his actual reasons for the ban? And what do critics contend are its flaws?
Secretary Kelly said that all is going well with very few problems. MAKE AMERICA SAFE AGAIN!
— Donald J. Trump (@realDonaldTrump) January 30, 2017
Will President Donald Trump's travel and refugee ban make the US safer?
During his campaign, Trump had promised to enact "extreme vetting" of immigrants and refugees. He particularly said that he would focus on areas the White House said the US Congress deemed to be high risk.
There is nothing nice about searching for terrorists before they can enter our country. This was a big part of my campaign. Study the world!
— Donald J. Trump (@realDonaldTrump) January 30, 2017
In December 2015, in the wake of the San Bernardino attack, Trump had called for a “total and complete shutdown” of the country’s borders for Muslims.
Our country needs strong borders and extreme vetting, NOW. Look what is happening all over Europe and, indeed, the world - a horrible mess!
— Donald J. Trump (@realDonaldTrump) January 29, 2017
He delivered on his campaign promise within weeks of taking office.
But in the backlash against his executive order, Trump told reporters in the White House's Oval Office on Saturday that his “ban” was "not a Muslim ban" – and said the measures were long overdue.
The basis for a ban
A blog on the website of the Washington-based Cato Institute think-tank argues that refugees and immigrants from the seven countries facing the ban are not a serious threat to US citizens.
The report says, “No terrorist from these places has carried out a lethal attack in the United States. Indeed, no Libyans or Syrians have even been convicted for planning such an attack.”
How was the list of targeted countries chosen?
The countries selected for the ban were likely chosen due to the existing “vetting process” that had already been in place in the US under the Obama administration.
Trump has said that the seven countries selected were not randomly chosen. "The seven countries named in the Executive Order are the same countries previously identified by the Obama administration as sources of terror."
On the other hand, Trump’s move aids Daesh and feeds the terrorist group’s anti-West and recruitment propaganda, the report says. The government of Yemen and several US lawmakers, including Republican Senator John McCain, concur with that assessment.
Some media reports have highlighted the fact that the ban only affects countries where Trump does not have business interests – and it leaves out countries that do.
Is the ban legal – or based on the constitution?
"An executive order of the president must find support in the Constitution, either in a clause granting the president specific power, or by a delegation of power by Congress to the president." 343 U.S. 579, 585. Antieau, Modern Constitutional Law, §13:24 (1969)
Peter Spiro, a professor at Temple University Beasley School of Law, said Trump's action is likely constitutional because the president and Congress have the authority to decide on asylum issues.
Another Trump administration official noted that the executive order was drafted in recent months during the presidential campaign with the help of "top immigration experts" in Congress, and that it had been approved by the Office of Legal Counsel, which advises the president and executive branch agencies.
Civil rights, faith groups and international organisations have begun to mobilise against the ban
Civil rights and faith groups, activists and Democratic politicians were furious and have vowed to fight the order.
The American Civil Liberties Union successfully argued for a temporary stay that allowed detained travellers to stay in the United States.
“Discrimination on nationality alone is forbidden under human rights law,” United Nations High Commissioner for Human Rights Zeid Ra'ad Al Hussein said in criticism of the ban. “The US ban is also mean-spirited, and wastes resources needed for proper counter-terrorism.” The United Nations, Organisation of Islamic Countries, African Union and Amnesty International criticised the ban, while Iran and Iraq have vowed to retaliate.
The Cota Institute says in its analysis that, “The order violates the law. Under the Immigration Act of 1965, the president may not refuse to give visas to immigrants coming to live in the United States permanently due to their nationality. The provision is unequivocal in stating that no person may “be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.”
Does the ban protect anyone other than Muslims?
Trump's order, that suspended the Syrian refugee program until further notice, will eventually give priority to minority religious groups fleeing persecution.
Trump said in an interview with the Christian Broadcasting Network that the exception would help Syrian Christians fleeing the civil war there. The US president still insists that the ban is not discriminatory.
"No foreign national in a foreign land, without ties to the United States, has any unfettered right to demand entry into the United States," the US Department of Homeland Security statement said.
The US embassy in Tel Aviv later also said that Israeli Jews born in the seven countries included under Trump’s travel restrictions will not be banned from America.
Does the ban discriminate against Muslims?
In an interview with Fox News, former New York City mayor and Trump advisor Rudy Gulliani said that Trump had told him he wanted to impose a Muslim ban and asked him to find a legal way to do it.
"If they are thinking about an exception for Christians, in almost any other legal context discriminating in favour of one religion and against another religion could violate the constitution," said Stephen Legomsky, former chief counsel at US Citizenship and Immigration Services in the Obama administration.
Several Democratic governors said they were examining whether they could launch legal challenges, and other groups eyed a constitutional challenge claiming religious discrimination.
"Executive order from President Trump is more about extreme xenophobia than extreme vetting," said Democratic Senator Edward Markey in a statement.
The Council on American-Islamic Relations said the order targets Muslims because of their faith, contravening the US constitutional right to freedom of religion.
"President Trump has cloaked what is a discriminatory ban against nationals of Muslim countries under the banner of national security," said Greg Chen of the American Immigration Lawyers Association.
Can past incidents in the US shape future policy?
Trump has deployed the ban as a preemptive strike against future terrorist attacks in the US. Is the past an indicator, however? Between 2001 and 2015, more Americans were killed by homegrown right-wing extremists than by terrorists, and non-Muslims carried out 90 per cent of all terrorist attacks in America, according to a report by the Canada-based Centre for Research on Globalization.
Moreover, the chances of an immigrant associated with violent extremism since 9/11 are far lower when compared with US-born Muslim converts to Islam according to a report by Charles Kurzman, a professor of sociology at the University of North Carolina, Chapel Hill, and a specialist on Muslim movements.
In global terms, cases where the religious affiliation of terrorism casualties could be determined, Muslims suffered between 82 and 97 percent of terrorism-related fatalities between 2006 and 2011, according to a report published by the US National Counterterrorism Centre.