On July 20, 2017, the Brennan Center, in conjunction with Muslim Advocates, Americans United for Separation of Church and State, the Southern Poverty Law Center, and Penn State Law Professor Shoba Sivaprasad Wadhia filed an Freedom of Information Act request with the Department of State (“DoS”) seeking records pertaining to the Trump Administration’s “Extreme Vetting” policies. The requestors also asked DoS to refer the request to the White House, Department of Justice, Department of Homeland Security (“DHS”), and Customs and Border Protection, as appropriate.
On March 6, 2017, after federal courts began entering preliminary injunctions to block implementation of President Trump’s first Executive Order targeting nationals from seven Muslim-majority nations, the President issued a second, revised Order. The revised Order was scheduled to take effect on March 16, 2017, and included a 90-day travel ban against individuals from six Muslim-majority countries—Iran, Libya, Somalia, Sudan, Syria, and Yemen—as well as a worldwide 120-day suspension of refugee processing. On March 15 and 16, 2017, federal courts in Hawaii and Maryland enjoined sections 2(c) and 6 of the second Order—the travel-ban and refugee-suspension provisions—preventing them from going into effect. But even as these most prominent provisions were enjoined, the Administration quietly began to implement other provisions of the Order, putting in place, among other things, an “extreme vetting” regime targeted at individuals from the six Muslim-majority countries and beyond. As civil-rights advocates and organizations, the requestors were concerned that the Trump Administration is using this “extreme vetting” regime as a means of implementing a Muslim ban away from the spotlight of court cases and media coverage. For this reason, the requestors sought detailed information about these “extreme vetting” policies.
Relatedly, the revised Order also mandated a worldwide review process that would identify countries from which additional information would be sought as a condition for processing and granting visas or other entry documents into the United States. The review process would identify countries from which additional information would be sought and categories of information that those countries would be required to provide. It is the requestors’ understanding that this review process concluded during the week of July 9, 2017, and that a report outlining its results was submitted to the President on July 10. In a cable sent to all U.S. diplomatic posts on July 12, 2017, the State Department summarized the results of this report and laid out new information-sharing requirements that countries must adhere to in order to avoid travel restrictions. Because the requestors suspected that the goal of the Trump Administration’s unprecedented review process was likely to make certain provisions of the revised Muslim ban permanent through a future order, they also sought various documents regarding the results of this internal review process. Two months later, the requestors’ suspicions were realized. On September 24, 2017, President Trump issued a proclamation that indefinitely bars almost all travel to the United States from six Muslim-majority countries (Chad, Iran, Libya, Somalia, Syria, and Yemen), and subjects Iraqi nationals to “additional scrutiny.” Although the proclamation also bans travel from North Korea and some government officials from Venezuela, its impact is overwhelmingly on Muslims.
The Brennan Center has previously submitted a FOIA request for information on the rising use of data-analytics tools by DHS to screen travelers, a letter urging DoS to abandon “extreme vetting” policies, and comments critiquing proposed plans to collect the social media passwords of visitors to the U.S.