Law Supports Anti-Terror Ban – With One Refinement

Robert  Charles
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Posted: Jan 31, 2017 12:01 AM

Mainstream media needs to spin down, stop the emotional hokum.  President Trump’s anti-terrorist ban is entirely legal, even if it could use modest revisions to limit and clarify intent.  Strong security arguments support a temporary ban on unrestricted travel to the United States from the seven countries identified as sources of terrorism.  This should not be controversial, and has precedent.  Two caveats:  This is not a religious test, which would never work and contravenes constitutional norms; and yes, select waivers should issue to ease implementation.

Now, deep breath.  Similar national, condition-specific travel restrictions are well established.  Typically, they involve a specific condition – political, health or security – and country subject to the restriction.  Typically, they are temporary – as this one is.  President Obama placed harsh, indefinite restrictions on entry into the US from Liberia, Sierra Leonne and Guinea during an Ebola outbreak. Those actions were just and reasonable, to protect Americans.   

Notably, no one claimed that ban was discriminatory or unconstitutional, anti-Muslim, anti-African, anti-underdeveloped or racist, despite the cultural homogeneity of those countries.  Guinea is 85 percent Muslim, Sierra Leonne 78 percent Muslim, and Liberia, while majority Christian also largely Muslim.  The ban fell within the President’s Article 2 powers. 

Similarly, President Carter banned all Iranians from entering the United States in April 1980, declaring the United States would “invalidate all visas issued to Iranian citizens for future entry into the United States, effective today.”  As with Trump, he gave no advance warning.  Implementation was challenging.  Carter added:  “We will not reissue visas, nor will be issue new visas, except for compelling and humanitarian reasons or where the national interest of our own country requires,” and “this directive will be interpreted very strictly.”  No one claimed Carter was anti-Muslim, or acting unconstitutionally, although Iran is 99.4 percent Muslim.  

And let’s be honest.  Driven by the same refugee crisis triggering Trump’s ban, Europe has reintroduced “border control” for “internal security,” suspending their free-range Schengen Code.  Restrictions now involve France, Germany, Austria, Denmark, Sweden, Norway, and Malta.  Why?  To minimize security threats posed by radicalized Muslims in the refugee population.  Is that not what Trump’s anti-terrorist ban does? 

Second deep breath.  Despite rhetoric, the President is effectively codifying legal authorities that already exist.  He seems to be saying – let’s be consistent, not miss a threat. US Customs already possesses discretion to bar entry on at least 18 grounds.  Agents bar foreign entry based on determinations of foreign membership in “totalitarian” parties, violations of immigration law, lack of “proper documentation,” “previous deportation,” even “physical or mental disorder …,” “moral turpitude,” suspicion of “espionage or sabotage.”  Flash: Entry is a privilege, not a right.

Obviously, suspicion of affiliation with “terrorism” is a reasonable basis for exclusion.  Objection to nation-based vetting must therefore be to Trump’s decision to systematize the process.  But is shifting the presumption to entrants in order to protect America so extreme?  Is that not what borders are about, protecting those inside against security threats from outside?  Customs is empowered to do this, now with more focus.  Is that so rash?

Third breath.  Country-specific travel limitations are common.  We limit foreign travel inside the United States all the time.  Statue of Liberty notwithstanding, our borders are not open.  A well-established “visa” process secures Americans, regulating time, place, purpose and number of foreigners entering.  Visas allow us to delay, review or block entry.  Nothing new.  Visa refusals are within international norms.  They are denied for “misrepresentation,” “national security threat,” failure to prove “strong ties” of “nationality or residence,” apparent lack of “intent to return” or “legitimate reason” for coming.  In fact, the main reason for ALL visas is to stop illegal immigration and protect Americans.  Sound familiar?  Not so radical, right? 

A glance now at “domestic” terrorism.  Recent terrorist events are being described as “unrelated” to foreign travel.  Is that true?  Take Boston, the April 2013 bombing.  Chechen-rooted Tsarnaev brothers were confessed Islamic extremists; one travelled to Kyrgyzstan and Dagestan, and got radicalized.  San Bernardino shooter Syed Farook travelled to multiple countries in the Middle East, returned with a radicalized wife.  Orlando terrorist Omar Mateen made multiple trips to the Middle East, got radicalized.  So foreign travel might play a part, after all.  Public reports describe 30 terrorist events with foreign roots that got pre-empted.  Preemption starts to sound like good policy, right?   

Last, consider this.  Refugee vetting, in particular, is hard.  Between 2003 and 2005, when Assistant Secretary of State, I was charged with helping train Iraqi and Afghan police, and working with Defense to vet and transport Iraqi police recruits from Baghdad to Jordan and back.  Central problem:  In places of great social upheaval, civil war, instability and dislocation, there are no documents to check, no records to validate identities, contentions of citizenship and lawfulness.  Real vetting just takes considerably longer, and must. 

At heart, the Trump approach – forcing rigorous refugee vetting for nations riven by civil war and instability is entirely legal.  Despite media apoplexy, this has no relationship to religion.  If it did, dozens of majority Muslim countries would be on the list, including Indonesia – the world’s largest.  They are not.  Radicalized Muslims have been leading terrorists, but anyone can claim or disclaim a religion; Sharia law allows deception.  Claiming this or that faith is not the issue. As Robert Gates noted, we do ourselves harm by failing to trumpet America’s respect for religion.  He is right.  Freedom involves free faith; America represents that – has and does.  

So, one refinement needed:  We should reassure, protect and accommodate friends in the seven war-torn countries, even as we conduct aggressive vetting.   We should grant visa waivers to those known “with us,” including military and civilian translators, foreign supporters and reporters, plus permanent residents with established business, scholarship or family ties.   

Implementation may have been awkward, but with that refinement, the Executive Order should be sound.  It has no more to do with religion than President Obama’s on Ghana, Sierra Leonne and Liberia or President Carter’s on Iran – all condition-specific, nation-based entry restrictions.

Finally, we should ask those pressing the anti-administration narrative and hoping to delegitimize this President, to take a final breath.  The world will go on.  If this Executive Order needs clarification, the Administration’s motivations are clear and precedent well-established.  Far too much emotion is being expended here – by someone.