Sessions' Mixed Message to Muslims

Trump's attorney general nominee hasn't fully assuaged concerns about the new administration's treatment of Muslims.

January 11, 2017

Cross-posted at U.S. News

On Tuesday, Sen. Jeff Sessions faced the first day of questioning by the Senate Judiciary Committee to determine whether he will be this country's next attorney general. The all-day hearing covered issues ranging from voting rights, to encryption, to immigration, to drug courts, to whistleblowers. One major topic of discussion, to which the senators returned repeatedly, was how the nation's next top cop would treat Muslims in light of President-elect Donald Trump's suggestions (and subsequent denials) that he might institute a flat ban on Muslim immigration or establish a registry for Muslims within the United States. Sessions' answers offered both assurances and cause for alarm.

When asked whether he supports a registry of "United States citizens who happen to be Muslims," Sessions rejected the proposal. He referred, as he did several times throughout the hearing, to the importance of religious freedom, which he emphasized applied to Muslims to the same degree as any other religions. And while previous administrations instituted a country-based registry, there are compelling arguments that those registries would be unconstitutional today. Given Trump's incendiary comments about Muslims, Sessions' disavowal was therefore a critical and much-needed statement.

At the same time, Sessions suggested that religious institutions could be surveilled if illegal activity "could be carried on there." This was an especially telling proposal in light of the fact that – unlike registering Muslims or foreign nationals – surveillance falls squarely under the jurisdiction of the Department of Justice. And since illegal activity certainly could be carried on anywhere from a mosque to a church to a gas station, Sessions' approach would not meaningfully restrict the government's ability to monitor any group it chooses. What Sessions did not say is that his Department of Justice would conduct surveillance of Muslim Americans only if it had actual evidence that the targets of surveillance were engaged in criminal activity. This omission is particularly concerning given the FBI's history of profiling the Muslim community.

On a religious litmus test for entry, too, Sessions equivocated. Sessions was one of just four senators on the Judiciary Committee to vote against a resolution that people should not be barred from entry into the U.S. based on their religion. At the hearing, while carefully agreeing that religion itself could not be a basis for barring someone from the country, he repeatedly asserted that an individual could be rejected if his or her own view of religion made them a threat to the United States.

On the face of it, this is relatively uncontroversial; it is not unreasonable to think that our border security officers should give a second look to someone preaching death to Americans. But religion should be irrelevant to that inquiry: The red flag comes when an individual expresses a desire to harm the U.S., not when he or she cites a religious verse in support.

Finally, perhaps recognizing that his concurrence with religion-based vetting puts him at odds with many members of the Judiciary Committee, Sessions proposed (as Donald Trump has as well) that aspiring immigrants could be screened instead on whether they come from countries with a "history of violence." If this term is to be taken at face value, there will be no more immigration to the United States from any country (which may well suit Sessions, one of the Senate's leading anti-immigrant voices, just fine). In fact, Trump is clearly suggesting increased scrutiny of immigrants from countries with a history of terrorism only when that violence is committed in the name of Islam. Sessions did not explain the justification for this focus, which will ultimately accomplish the goal of religion-based vetting using a more politically palatable frame.

Overall, this series of interchanges left the impression of a man struggling to articulate a principled approach on this issue perhaps more than any other. On most questions, Sessions seemed legally and philosophically agnostic, simply repeating that he would follow the law as Congress had passed it. Questions about anti-Muslim discrimination, though, prompted some of Sessions' few references to constitutional principles; he clearly acknowledges foundational notions of religious freedom. At the same time, however, he is comfortable delving into immigrants' religious views. Regardless of whether that exercise is permitted by the Constitution, it is both antithetical to American values and nearly impossible to implement.

Luckily for Sessions, that particular task, if it comes to pass, will fall to the Department of State, not DOJ. But if he is thinking about how to develop positive relationships between law enforcement and American Muslim communities who are facing sharply rising rates of hate crimes, repudiating the notion of surveilling and vetting disfavored religious groups would be a good place to start.