Vetting the Executive Order
By Robert P. George and Angela Wu Howard
2 . 3 . 17
Robert P. George:
Angela Wu Howard is a leading international human rights lawyer and activist with whom I have worked in defense of religious liberty. I admire her and hold her in the highest esteem. I had been planning to write an analysis of President Trump’s recent executive order, but Angela has saved me the trouble. There is nothing in what she says below that I can improve on. I am extremely grateful for her work, and if you take the time to read her analysis (which began as a Facebook post), you will be grateful, too.
There is an enormous amount of confusion about the EO. President Trump bears much responsibility for the confusion, and his critics bear some of it. In my opinion, the EO was not necessary and therefore should not have been issued. Angela explains why. A significant part of the reason is that we already have “extreme vetting” of refugees. In this important respect, we are quite unlike many European nations. Of course, most Americans don’t know this. So they fear that what has happened in some places in Europe could happen here. I myself only learned about the stringency of our refugee vetting procedures as a result of extensive briefing when I was chairing the U.S. Commission on International Religious Freedom (USCIRF). There are many things in our government that are “broken,” but our refugee vetting system isn’t one of them. We needn’t, and therefore we shouldn’t, shut out refugees who are fleeing terrorism in places such as Syria and Iraq, even temporarily. Because it isn’t necessary to do it, it is, in my opinion, necessary not to do it.
When I was chairing USCIRF, I called for an increase in the refugee quota. I continue to favor that. Many of my conservative friends disagree, but I believe that justice as well as compassion requires it. The U.S. is not without responsibility for creating the refugee crisis (or the conditions for it)—though we can debate just which presidents and others bear just what portion of that responsibility. I also favor maintaining the stringency of the vetting system, even if that means we do not reach the quota. That’s because I do believe that national security is preeminently important, and I want to make sure that what has happened in some places in Europe does not happen here. The other thing I advocated, and continue to advocate, is prioritization of refugee acceptance based on vulnerability to the worst forms of abuse: murder, rape, torture, enslavement. This is not because I want to bias the system in favor of Christians, as some of my more ridiculous critics on the Left have claimed. It is because decency requires it. Yes, Christians will benefit, but so will Yazidis, Shabak, Turkmen, minority Muslims, and even majority Muslims who are targeted by terrorists (such as ISIS) for helping U.S. forces or opposing terrorist entities. These are the people targeted by ISIS and other evildoers for the worst forms of abuse.
Angela Wu Howard:
There has been a lot of misinformation circulating about the Executive Order signed last Friday on terrorism, immigration, and refugees (“Protecting the Nation from Foreign Terrorist Entry into the United States”). Misinformation confuses people, confuses the debate, and deprives legitimate opposition of credibility. There is much to criticize about the EO, and I will discuss some of those things. It is unhelpful, however, for people to be spreading falsehoods. Below, I address the most common confusions that I have heard over the last few days.
If you’re eager to litmus-test my politics on this, it was said best by jurist, philosopher, and conservative Catholic intellectual Professor Robert George at Princeton: “The way to fight terrorists is not by closing our doors—or hearts—to their victims.”
Here’s what I cover:
1. Basic facts of the EO
2. Drafting problems (overbreadth, lack of inter-agency consultation, lack of administrative clarity)
3. Why ban refugees?
4. Is it a Muslim ban?
5. Why isn’t Saudi Arabia on the list of countries from which nationals are banned, given that the 9/11 hijackers were from Saudi Arabia?
6. Did Trump exempt only those Muslim-majority countries with which he has business ties?
7. Prioritizing religious minorities: Is it justified? Does the EO have an exception only for Christians?
1. BASIC FACTS
I suggest that you read the actual text of the EO for yourself. Following is a summary of what the EO does:
VETTING PROCEDURES OVERHAUL
a) Orders a fairly comprehensive review of all our immigration and refugee vetting processes; directs agencies to develop “uniform screening” standards across agencies; orders reports from the Departments of State, Homeland Security, National Intelligence, etc. every thirty days.
BARS TO VISAS BASED ON SEVEN COUNTRIES OF ORIGIN
b) Suspends entry into the U.S. for ninety days of all persons from seven Muslim-majority countries named by the Obama administration as state supporters of terrorism in the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015; allows the Secretaries of State and Homeland Security jointly to make exceptions on a case-by-case basis; orders a review of whether any countries should be added to or removed from Obama’s list.
c) Suspends refugee processing (for nationals from any country, not just the seven) for 120 days; orders that during those 120 days, the refugee vetting process should be reexamined; once new procedures are in place, refugee applicants “already in process” may be admitted if the new requirements are satisfied (it seems, even within the 120 days); reduces the number of refugees to be admitted this year from 110,000 to 50,000.
d) After the 120-day refugee program suspension is over, prioritizes “to the extent permitted by law” refugee claims based on religious persecution by applicants who are religious minorities in the countries from which they apply; does not name any particular religious demographic.
e) Bars refugees from Syria indefinitely (most likely, beyond the 120 days).
f) Authorizes Secretaries of State and Homeland Security to make exceptions to any refugee bar in the EO on a case-by-case basis, particularly when exceptions are needed to “conform … to a preexisting international agreement” or “when the person is already in transit and denying admission would cause undue hardship.”
OTHER INTERESTING PROVISIONS THAT MOST PEOPLE AREN’T TALKING ABOUT
g) Orders Homeland Security to see whether state and local jurisdictions “may have greater involvement” in placement or resettlement of refugees in their jurisdictions.
h) Expedites completion of a biometric entry-exit tracking system.
i) Suspends the Visa Waiver Interview Program, which allowed visitors from certain countries without an interview (there doesn’t seem to be an end date to this suspension); expands the Consular Fellows Program, so that there will be more consular fellows on the ground “to ensure that non-immigrant visa-interview wait times are not unduly affected.”
k) Orders information regarding terrorism-related offenses committed by foreign nationals in the U.S. to be released to the public every six months.
l) Says that nothing is to be interpreted to impair or affect authority granted by law to existing agencies: “This order shall be implemented consistent with applicable law,” i.e., the order is enforceable only insofar as it’s legal. What this means is playing out in court right now.
m) Orders that the U.S. “should not admit those who engage in acts of bigotry or hatred (including ‘honor’ killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.” You may find this language hypocritical, if you think that our current government is misogynist, bigoted, abusive, or homophobic. I found it interesting, as expressing the kinds of people the EO envisions coming to America.
2. DRAFTING PROBLEMS (overbreadth, lack of agency consultation, lack of administrative clarity)
When I read the EO in the first twelve hours, I wasn’t sure how much criticism it deserved at this level, because the language of the EO does not itself tell us what enforcement will look like. Any order like this should go through extensive inter-agency vetting in order to understand its potential effects, and for there to be clear procedures for enforcement that can be communicated to every agency affected, all the way down to the guy sitting in a booth at JFK border control. But it is now obvious that this EO just wasn’t executed well.
In the middle of the night after the EO was signed, I learned from a colleague that he had a Coptic Christian Egyptian being held up at Dulles. (His case has since been resolved.) The language of the EO didn’t cover him—Egypt isn’t on the EO’s list—but it was obvious that the immigration officer at the airport wasn’t sure of it. Most likely, he’d just read that there was a new “Muslim ban” (more on the problems with that term below), and that was enough to cause confusion at the border. That means there is, at the very least, an enforcement failure. Before anything went into effect, everyone whose job it is to implement orders should have understood clearly what those orders were and how to execute them. It’s also not the first time that an immigration rule change caused confusion (see a personal example in Point 5 below).
Days later, we find that tech companies have had to put off flying their foreign employees to offices in America; military personnel have criticized the EO because it has shut out Iraqi pilots who were supposed to train in Arizona; and, of course, refugees in transit, who have already lived through unimaginable horrors and then been through the toughest vetting process in the world, find their futures suddenly and once again uncertain and at risk. The stories of separated families are especially compelling.
Possibly the administration had thought through all these scenarios, and we do need to allow for the nature of an executive order, which is not meant to specify every administrative procedure required for implementation—that can be done at the agency level. But what we now know to have been an absence of the typical inter-agency consultation, which would have helped to anticipate the effects of the new rule, showed here immediately. The administration was evidently improvising in at least one instance, when they said in answer to questions coming from the field that greencard holders (who are not mentioned in the EO) may not enter, and then in under twenty-four hours reversed course. Regardless of whether this confusion arises from simple execution oversights or from actual ill will (as the administration’s sharpest critics would have it), it’s evidence of a leadership failure, for which the human fallout is enormous. And in view of the bureaucracy that already encumbers our immigration, refugee, and asylum systems, without proper guidance, there is little hope that the most humane interpretations will be taken of the language contained.
EXCEPTIONS. Now, the EO does provide for exceptions to both the ninety-day suspended entry for certain enumerated countries, and the 120-day refugee suspension. Each case has to be approved by the Secretaries of both State and Homeland Security. The Secretaries themselves could probably deputize certain of their officers to undertake those determinations, but for people who deserve to enter (and were cleared to enter before the EO) and pose no actual danger to the U.S., it’s still an incredibly inefficient exception. The best-case scenario assumes that the Secretaries are of a strongly humanitarian frame of mind and want to expedite those exceptional cases. But the administration has not demonstrated that alongside securing our borders and fighting terrorism (which should be a national priority), the plight of refugees is at the top of the list. The best-case scenario also assumes that each affected person has an advocate, such that their petition for an exception actually will reach the Secretaries, when there are no established procedures for its doing so. Basically, you have to know someone really important to get your case heard. I applaud that the EO has exceptions, but this is an execution failure—absent pre-established mechanisms for appeal, the exceptions are meaningless, especially in urgent cases. The most just and compassionate default would not be an overly broad suspension that requires exceptional advocacy to overcome, but an EO that takes certain cases into account straight off the bat.
Aside from inherent and inescapable problems with the overbreadth of the suspension, there is a cruel irony in naming the EO’s seven mostly war-torn, unstable countries. It may be that, like its predecessor, this administration thinks that people from those countries deserve heightened scrutiny—but that’s also where you’d expect refugees need to escape from the most. So a blanket ban, even a temporary one, seems particularly harsh toward the people who most need our compassion and aid.
The agencies have a great deal of power right now to make the EO better—or worse. The anecdotal evidence is not looking good. Dr. Suha Abushamma was returning to the U.S., where she is an intern at the Cleveland Clinic, from a visit to family in Saudi Arabia when the EO was put into effect. After landing at JFK, Abushamma was detained for nine hours, during which she was given nothing to eat and was not allowed to speak with her lawyer. Then she was forced to return to Saudi Arabia. She has since filed a lawsuit alleging that agents misled her into signing a form that would cancel her valid H-1B visa, by telling her that she would otherwise be banned from re-entry for five years. Saudi Arabia is not even on the list of seven countries whose nationals the EO bars, but Dr. Abushamma has been forced to leave behind an entire life that she has worked hard to build—including a prestigious medical internship and a fiancé whom she was planning to marry this summer. Dr. Abushamma is comparatively privileged among immigrants to this country—she is highly educated and has great lawyers, (you can find the complaint here), and has an institutional employer in the U.S., who may be willing to advocate for her. Imagine someone facing Dr. Abushamma’s challenges, without any of her resources.
The Department of Homeland Security has issued a statement that I imagine is partly in response to questions regarding whether they plan to side with protestors demanding non-compliance with the EO. Basically, DHS plans to abide by the law—and that means both enforcing the EO and complying with any court orders. Remember that adverse rulings against the EO may strike down, or temporarily stay, part (but not all) of the EO—so it’s possible to do both. DHS also says it will enforce the EO, taking into account its stated purpose of securing our borders and preventing terrorism, and “faithfully execute the immigration laws,” treating “all of those we encounter humanely and with professionalism.” This is encouraging language, and it remains to be seen what execution will look like once the dust settles and the agency has a chance to issue actual implementation directives, instead of leaving immigration officers to improvise or (at worst) use the EO as an excuse for bureaucratic malevolence. Systematic implementation takes time, and the tragedy of what former Secretary of State Condoleezza Rice is calling an “ill-considered and badly delivered” EO is that many of the people affected—particularly refugees—don’t have the luxury of time.
3. WHY BAN REFUGEES?
Refugees are the most highly vetted people in transit in the world already. It’s a lot easier for a terrorist to cross our borders using a tourist or student or even worker visa. The EO covers reexamination of all of them. I am confused, however, as to why— if it is easier for a terrorist to enter on a tourist visa than as a refugee—the suspension for refugees is thirty days longer than the seven-country visa suspension. I also don’t know what we are going to accomplish by reexamining refugee vetting. Maybe there is, in fact, some failure in current procedures that can and should be addressed. Section 4, on establishing uniform screening, for example, directs the various agencies to implement a “uniform screening standard and procedure,” such as in-person interviews and “a database of identity documents proffered by applicants.” The directive suggests that we don’t have uniform screening yet across all the different agencies, which … sounds like a good thing to address.
Do we need a temporary freeze while this review and revision happens, particularly in consideration of the effect on refugees? Well, let’s consider the number of terror attacks so far perpetrated by refugees entering the U.S.: zero. Of approximately 750,000 refugees the U.S. has accepted since 9/11, twelve have been arrested for suspected terrorist activity—is it “only” twelve, and therefore worth the cost, or is it twelve too many? That’s a different discussion, but whatever your risk tolerance, the fact remains that the refugee vetting process is incredibly stringent already.
4. IS IT A MUSLIM BAN?
The words “Muslim” and “Islam” do not appear anywhere in the EO text. But on the campaign trail, Trump called for a “total and complete shutdown of Muslims entering the United States.” Over time, this language evolved into implementation of “extreme vetting.” Recently, Rudy Giuliani has stated that Trump told him he wanted a “Muslim ban” and asked how to do it legally. The best reading of this is that “Muslim ban” was a lazy shorthand for referring to terrorist threats originating from the Muslim-majority world. In the end, Giuliani says, “we focused on, instead of religion, danger—the areas of the world that create danger for us, which is a factual basis, not a religious basis.” The worst reading is, well, Trump wants a Muslim ban and cover to do it. Even under the most generous reading, the administration is responsible for the fact that the phrase “Muslim ban” is now being used to describe the EO. Perception and rhetoric matter, and mastering them is part of good leadership.
That said, I don’t particularly like parroting the term “Muslim ban.” First, the EO does not ban Muslims generally or Muslims as such, even in the seven nations. Second, it’s a lazy way to talk about the EO. In an era of increasing polarization, such that most people don’t rub shoulders with anyone who disagrees with them, laziness is particularly dangerous. Here are three reasons why we should stop being lazy:
• The term further instills fear among Muslims and other minorities. It has broken my heart how the rhetoric of the last two years has made my friends in minority and immigrant communities feel scared and confused.
• It further emboldens the miniscule minority of white nationalists who think they have a right to harass people in the streets, or whatever other sickening things they are doing.
• It reinforces the narrative among our enemies abroad that America hates Muslims. This narrative is not only untrue, it’s a terrorist recruiting tool.
• It’s making it really difficult for people abroad who normally cooperate with our military, intelligence, and diplomatic corps in the fight against terrorism to trust that we’ll help keep them safe.
There is a great deal of discretion and interpretation entailed by the implementation of the EO, and words matter. Would you rather that this EO were read to be less discriminatory, or more discriminatory, than the administration suggests in its non-textual rhetoric? If I were litigating a case against the EO, I would quote the heck out of “Muslim ban” to demonstrate discriminatory intent. If I were trying to implement rules in accordance with the EO, I would certainly be making the case that nobody should interpret it as a Muslim ban.
5. WHY ISN’T SAUDI ARABIA ON THE LIST OF COUNTRIES, GIVEN THAT THE 9/11 TERRORISTS CAME FROM SAUDI ARABIA?
The best person to answer this question would be President Obama. The EO does not name the seven countries from which nationals are temporarily prohibited from entering. Instead, it seeks a suspension of visas to nationals from certain countries originating in legislation passed and signed into law during the Obama administration (section 217(a)(12) of the Immigration and Nationality Act (INA), 8 U.S.C. 1187(a)(12)). Subsequent to the INA and to a related piece of legislation (“Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015”), the Obama administration expanded the list of two countries originally named in the INA (Iraq and Syria) to four, then to seven, countries that it considered state sponsors of terrorism and at heightened likelihood of harboring terrorists. These acts imposed—still impose—more stringent U.S. entry requirements (though not a ban) on people who had traveled through those countries.
Saudi Arabia was not on this list. Should it have been? It would be arrogant for me to think that I know enough to say. But it wasn’t, and that was a decision of the previous administration. The EO does direct agencies to make recommendations for which other countries belong on the list. So they’re revisiting it. But I imagine that the current administration wanted to act quickly, and deferred to the previous administration’s own determinations for the moment. The point here is not that the existing list served the same purpose then as it does now (it did not); nor does the fact that the seven countries were pulled from another source justify the way the list is being used now. The point is that the selection of these seven countries, and the exclusion of others, was not arbitrary, and was also not just a matter of their being Muslim-majority. That trope shouldn’t be perpetuated.
A personal view on enforcement: The 2015 INA policy changes described above are most likely the reason why, not so long ago, my husband Peter got held up at Dulles for several hours, having arrived with a passport stamp from one of these seven countries. Officials wouldn’t tell him why they had him sitting without his cellphone or permission to contact anyone, in a little room by himself, for hours. Looking back, I realize that the timing coincides with the Obama administration’s expansion of the list of countries from which travelers would receive heightened security. This is speculation—but most likely, border control was trying to figure out what the new rules meant and how stringently they were supposed to grill Pete.
Now, he was held for just a few hours. He wasn’t fleeing persecution. He hadn’t been through hell as a refugee for several years already, only to have a last hurdle at U.S. border control thrown up because of an unexpected change in rules while he was in transit. He’s a white man and an American-born citizen, and his wife happens to be a lawyer who has litigated immigration, asylum, and refugee cases. With all that privilege, he still got swept up in the system. Just imagine a less clear policy change, and its effects on a refugee who does not speak the language and lacks the resources Pete had. All the more reason to take care with the enforcement of new directives (see Point 2).
6. AREN’T THE ONLY MUSLIM-MAJORITY COUNTRIES THAT THE EO DOES NOT NAME COUNTRIES WHERE TRUMP DOES BUSINESS?
It’s very unlikely for anyone from America to do major business in the seven countries listed by the INA as being of particular concern for harboring terrorists. It’s not surprising that any American business would operate only in Muslim-majority countries that are not on the list—because they are relatively stable and have functioning governments and judicial systems (like Indonesia, Malaysia, or even Azerbaijan). An independent judiciary is good for business, and human rights is a good litmus test—if courts adjudicate human rights claims fairly, then foreign investors can probably count on them to adjudicate a potential contract dispute fairly. Any president who owns businesses all over the globe presents a lot of conflict-of-interest and ethical challenges, which are worth taking seriously—but this has nothing to do with the EO. Is Trump probably glad that the countries that he has hotels in weren’t on the list? Sure. But that’s not the same thing as intentionally leaving them off just to protect his businesses. It’s wise, and keeps us better able to evaluate real conflict-of-interest problems, not to conflate the issues.
7. PRIORITIZING RELIGIOUS MINORITIES
The EO directs agencies, once the ban has been lifted, to prioritize the applications of refugees who are religious minorities in the countries they are fleeing. Contrary to many press reports, it does not single out Christians for admission. Religious minorities covered by the EO would include Yazidis (who have arguably been the most heavily persecuted by ISIS), Baha’is from Egypt, and Rohingya Muslims in Buddhist-majority Burma, which has severely persecuted the Muslims within its borders. (It is unclear whether “religious minorities” may also be disfavored sects within a majority faith—such as Shia Muslims in predominantly Sunni Muslim countries, or Muslims who are dissenters from certain interpretations of Islam, and so labeled unbelievers and targeted by terrorist groups like Boko Haram and ISIS.)
The minorities provision would also include Christians from Muslim-majority countries, who have been disproportionately affected and disproportionately left out of refugee settlements in the U.S.: Christians made up 10 percent of the Syrian population, but less than 1 percent of the Syrian refugees the U.S. has admitted. There are a number of reasons why this is so. It’s impossible to cover them all, but here are a few.
First, it’s important to know, by way of background, that most of the resettlements the U.S. accepts come through the UNHCR refugee system. Muslims make up the vast majority of victims of the Middle East crisis, and they constitute the vast majority in refugee camps; they deserve our help. But it remains true that religious minorities suffer particular difficulties. Many minorities do not feel safe in the UNHCR camps, for the same reasons they felt vulnerable as minorities at home. The camps do not offer the safety provided by their segregated religious communities in their home countries. Disparate religious communities—Muslim villages and Christian villages—may have existed peacefully side-by-side before the war, but the chaos of refugee camps easily upends that delicate balance.
Further, Christians received a peculiar protection against majority-Muslim pressures under the Assad regime. In interviews on the Syrian border, refugees have told me that they consider registering akin to putting yourself on a death list, identified as either an Assad loyalist, or as having fled from the Assad regime. Here the most complex geo-sectarian-politics and our domestic refugee policy collide. However confusing the reasons, existing outside the UNHCR system creates a number of problems—from not qualifying for UN aid because they are not registered, to making it more difficult to queue for resettlement. Refugee and international religious freedom advocates criticized the Obama administration for not taking steps to address the unique problems facing religious minorities—for instance, by more actively processing applications from outside the UNHCR system. The EO’s prioritization of religious minorities is a reversal of the underrepresentation these minorities received under previous refugee admittance policies—and that’s a good thing.
Putting aside this practical underrepresentation, we should consider it just, as a matter of principle, to prioritize religiously persecuted refugees over other war refugees. There’s no question that war refugees are suffering greatly, under constant danger due to the conflict around them. They deserve compassion, protection, and shelter. But religiously persecuted refugees are, in the current war(s), specifically sought out and targeted—hunted, if you will—by ISIS and, in places like Nigeria, by Boko Haram, etc. So there is an objective urgency to their cases that, bad as other war refugees have it, does surpass other cases. It may also be true that some war refugees are being targeted and pursued for reasons other than religious identity—perhaps because of known active resistance to the prevailing regime. This is the case, for example, for Iraqi Muslims who have aided the American war effort as pilots or translators. That fact may likewise make their cases for resettlement stronger.
Good governance requires responsiveness to actual circumstances, and sometimes that means positive discrimination—discrimination that aids first the most vulnerable, the most resourceless, or at least addresses their particular problems. Alas, this kind of attention to detail is lacking in much of the Executive Order. But even absent a change at the White House, there’s an opportunity to mitigate the damage, and that’s in interpretation and implementation. Doing both well, doing justice to those who need it, will require compassionate hearts and level heads.
Angela Wu Howard is a lawyer and a board member at the Institute for Global Engagement.
Robert P. George is McCormick Professor of Jurisprudence and director of the James Madison Program in American Ideals and Institutions at Princeton University.