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Report

Extreme Vetting and the Muslim Ban

Key Fact: Although Trump’s proclamation also bans travel from North Korea and some government officials from Venezuela, its impact is overwhelmingly on Muslims.

Published: October 2, 2017

The White House’s three attempts at a travel ban and “extreme vetting” policies for certain visa applic­ants are part of an over­all strategy for clos­ing off the coun­try to partic­u­lar visit­ors, espe­cially Muslims. This report iden­ti­fies at least three key fail­ings of Trump’s travel and vetting policies: their fail­ure to enhance national secur­ity, engendered in part by the admin­is­tra­tion’s perhaps will­ful blind­ness to the fact that the U.S. already has one of the world’s most rigor­ous visitor screen­ing systems; their discrim­in­at­ory nature and reli­ance on unproven meth­od­o­lo­gies that target partic­u­lar groups; and their real costs, includ­ing economic harm, to the Amer­ican people.


INTRO­DUC­TION

Just one week after taking office, Pres­id­ent Trump signed Exec­ut­ive Order 13769, which banned travel from seven predom­in­antly Muslim coun­tries – Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen – for ninety days. The impact of this “Muslim ban” was imme­di­ate, dramatic, and highly visible: trav­el­ers were detained at airports and preven­ted from board­ing planes to the United States as family and friends waited anxiously for their arrival. The ban’s repu­di­ation of Amer­ica’s commit­ment to reli­gious free­dom and nondis­crim­in­a­tion gener­ated protests around the coun­try. It was enjoined by federal courts around the coun­try as discrim­in­at­ory, until the Supreme Court allowed a limited portion of it to go forward. But the ban was just the begin­ning. Accord­ing to Exec­ut­ive Order 13769 and its successor, Exec­ut­ive Order 13780, the ban was just a tempor­ary meas­ure, designed to pave the way for the indef­in­ite suspen­sion of travel from certain coun­tries as well as “extreme vetting.”

The new regime, which is just coming into view, oper­ates as a de facto Muslim ban. First, start­ing in May 2017, the State Depart­ment began imple­ment­ing new vetting proced­ures for certain categor­ies of visa applic­ants, the burden of which will likely fall most heav­ily on Muslims. Further, 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 (from which a negli­gible number of people come to the U.S.) and some govern­ment offi­cials from Venezuela, its impact is over­whelm­ingly on Muslims.

There is ample evid­ence that this is by design. Begin­ning on Decem­ber 7, 2015, when then-candid­ate Trump called for a “total and complete shut­down of Muslims enter­ing the United States,” the pres­id­ent made his goal crys­tal clear, repeatedly. Despite months of litig­a­tion accus­ing the pres­id­ent of inten­tional reli­gious discrim­in­a­tion, that campaign pledge remained online until May 2017. Extreme vetting and the Muslim ban are ways of fulfilling this prom­ise. As Trump himself said in the second pres­id­en­tial debate, “[t]he Muslim ban is some­thing that in some form has morphed into an extreme vetting from certain areas of the world…” More recently, with the travel ban stopped by courts, Trump was even more expli­cit, tweet­ing: “In any event we are EXTREME VETTING people coming into the U.S. in order to help keep our coun­try safe. The courts are slow and polit­ical!”

These meas­ures are only part of the admin­is­tra­tion’s broader nation­al­istic, isol­a­tion­ist agenda which includes plans to cut legal immig­ra­tion in half over a decade; rescind protec­tions for “Dream­ers,” undoc­u­mented young adults who were brought to the U.S. as chil­dren; substan­tially increase arrests of undoc­u­mented people; and build a wall on the U.S./Mexico border. The Trump agenda would also put a damper on travel to the United States by slow­ing down visa applic­a­tion processing, and increas­ing the required paper­work by “double, triple or more.”

The admin­is­tra­tion’s claim that travel bans and extreme vetting are neces­sary to protect the nation against terror­ist threats from over­seas is unsup­por­ted by evid­ence and – partic­u­larly in the context of the pres­id­ent’s stated goal of banning Muslims – seems pretextual. Multiple federal courts were uncon­vinced by the admin­is­tra­tion’s argu­ment that national secur­ity required a cessa­tion of travel from certain coun­tries. And as a federal appel­late court recently poin­ted out: “There is no find­ing that present vetting stand­ards are inad­equate, and no find­ing that absent the improved vetting proced­ures there likely will be harm to our national interests.” Indeed, empir­ical stud­ies show that the risk of a deadly attack on U.S. soil by a foreigner who has been improp­erly vetted is infin­ites­im­ally small. This is not surpris­ing: The process for screen­ing foreign nation­als enter­ing the U.S. is rigor­ous and the U.S. has one of the world’s most thor­ough visa vetting systems. Applic­ants not only face an impos­ing legal stand­ard aimed at ensur­ing that those plan­ning to visit the U.S. do not intend to stay in the coun­try, but are also are run through a gamut of national secur­ity checks. Concerns are treated seri­ously: Anyone flagged for addi­tional review is thor­oughly examined by secur­ity offi­cials, a process that can take months.

Nonethe­less, the Trump admin­is­tra­tion appears commit­ted to banning travel from certain Muslim-major­ity coun­tries and adding further burdens to the already robust visa screen­ing process.

First, the admin­is­tra­tion has insti­tuted indef­in­ite bans in place of the tempor­ary ones, which again seem targeted as Muslims. The new rules stem from a “world­wide review,” mandated by the initial Muslim ban order, to determ­ine whether addi­tional inform­a­tion would be required from some coun­tries to prop­erly adju­dic­ate visa applic­a­tions. Although the admin­is­tra­tion has sought to the paint the process for decid­ing which coun­tries were black­lis­ted as an object­ive exer­cise, it clearly also allowed for substan­tial discre­tion to be exer­cised. Accord­ing to the Depart­ment of Home­land Secur­ity (DHS) 47 coun­tries were found to be “inad­equate” or “at risk” of becom­ing “inad­equate” in meet­ing “global require­ments for inform­a­tion shar­ing” related to iden­tity veri­fic­a­tion and cooper­a­tion on coun­terter­ror­ism matters. But in the end, the pres­id­ent selec­ted eight nations for sanc­tions, citing “other risk factors” (e.g., signi­fic­ant terror­ist pres­ence within a coun­try’s territ­ory) and “foreign policy, national secur­ity, and coun­terter­ror­ism goals”. These malle­able consid­er­a­tions can be and were used to justify select­ive and sweep­ing travel restric­tions. Indeed, the weight of the sanc­tions fell primar­ily on  Muslim coun­tries, five of which were on the original Muslim ban list. The addi­tion of North Korea and certain Venezuelan govern­ment offi­cials to the black­list seems to have little to do with the stated coun­terter­ror­ism purpose of the initi­at­ive. Only a tiny number of trav­el­ers would be affected (just 109 visas were issued to North Korean nation­als in 2016, for example) and neither coun­try has a history of spon­sor­ing terror­ism in the United States.

Second, the Trump admin­is­tra­tion has begun impos­ing addi­tional require­ments on those still eligible for a visa to enter the United States. Accord­ing to the Septem­ber 2017 proclam­a­tion, nation­als of Iran, Iraq, and Somalia will be subjec­ted to addi­tional screen­ing. The State Depart­ment has star­ted doing the same for “applic­ant popu­la­tions warrant­ing increased scru­tiny.” We do not yet know how these popu­la­tions will be chosen, but it is notable that the State Depart­ment estim­ates that 65,000 people annu­ally will be subject to further scru­tiny, which is roughly the number of tempor­ary visas gran­ted in fiscal year 2016 to citizens of coun­tries affected by the first two Muslim ban exec­ut­ive orders.

Tagging indi­vidu­als for addi­tional scru­tiny is not out of the ordin­ary in the visa process. But the context in which extreme vetting has been intro­duced suggests that it may be a means of erect­ing barri­ers based on stereo­types about Muslims rather than indi­vidu­al­ized assess­ments. Partic­u­larly troub­ling is the require­ment that visa applic­ants provide consu­lar officers with extens­ive inform­a­tion about their online pres­ence, such as their social media handles. There are seri­ous ques­tions about the effect­ive­ness of this tool. Anyone seek­ing to avoid scru­tiny could easily erase their social media foot­print. And inter­ac­tions on plat­forms such as Face­book and Twit­ter are notori­ously open to misin­ter­pret­a­tion – espe­cially since they may be trun­cated, conduc­ted via symbols, and are context, culture and language specific. These types of checks do, however, under­mine funda­mental freedoms of speech and faith, both of foreign­ers and their Amer­ican friends, famil­ies and busi­ness contacts. The collec­tion of social media profiles also facil­it­ates ideo­lo­gical profil­ing, a prac­tice that has been rejec­ted by Congress as contrary to Amer­ican ideals and dismissed by experts as inef­fect­ive.

Analysis of social media profiles will not be limited to groups iden­ti­fied as partic­u­larly risky:  DHS is in the process of devel­op­ing the require­ments for an auto­matic screen­ing system that will continu­ously analyze a multi­tude of data­bases, includ­ing those contain­ing social media inform­a­tion, to eval­u­ate such subject­ive char­ac­ter­ist­ics as whether a trav­eler is likely to “becom[e] a posit­ively contrib­ut­ing member of soci­ety.” Not only is this propos­i­tion of dubi­ous effic­acy, it raises loud alarm bells about privacy, free speech, and discrim­in­a­tion.

Making our already strin­gent visa regime more “extreme” also carries signi­fic­ant economic and cultural costs. It dampens inter­na­tional travel, which accounts for billions of dollars in revenue, both from trav­el­ers from the coun­tries directly affected and others. Already, the Commerce Depart­ment is report­ing a 4.2 percent drop in inter­na­tional visit­ors to the U.S. in the first quarter of 2017 compared to the first quarter of 2016. While it is impossible to say defin­it­ively that this was caused by the admin­is­tra­tion’s anti-foreigner policies and rhet­oric, this infer­ence hardly seems like a “reach.”

Clamp­ing down on travel will also choke off the free exchange of ideas and inter­ac­tion with the world that are hall­marks of a success­ful and open demo­cratic soci­ety. Anec­dotal reports suggest that visit­ing the U.S. is becom­ing more diffi­cult. A trade summit at the Univer­sity of South­ern Cali­for­nia inten­ded to boost busi­ness ties between Amer­ica and Africa had no Afric­ans – all 60 of those sched­uled to parti­cip­ate were denied visas. A gath­er­ing at the Univer­sity of Wiscon­sin had to be canceled for the same reason. An all-girls robot­ics team from Afgh­anistan and a women’s soccer team from Tibet, both registered to parti­cip­ate in events inten­ded to foster cross-cultural under­stand­ing, were denied visas. There are many other such stor­ies that show how travel restric­tions under­mine Amer­ican interests and values. If Amer­ican univer­sit­ies are to be beacons of innov­a­tion and the exchange of ideas, they need to be able to welcome people from across the globe; if Amer­ican values include gender equal­ity, as the Muslim ban exec­ut­ive orders them­selves state, the coun­try should welcome aspir­ing women engin­eers and athletes; if Amer­ica values economic growth, it needs to foster inter­na­tional busi­ness part­ner­ships and science and tech­no­logy learn­ing. This is all to say that the national interest is not served by a reflex­ive ratchet­ing up of visa require­ments, but requires a thought­ful eval­u­ation of the range of interests at stake.

Extreme Vetting and the Muslim Ban by The Bren­nan Center for Justice on Scribd