Thanks to the Ninth Circuit giving all of us a few days before deciding late in the day yesterday to uphold the stay on the Trump Administration's Executive Order 13769 relating to immigration, those of us following the litigation had a moment to step back and assess some of the swirl of claims being made. One of them is not so much legal as it is historical - though the history in question is quite recent: the origin of the list of seven countries identified in the Executive Order.
The Trump Administration has repeatedly attempted to place the responsibility for the list of countries covered by the seven-country partial Muslim ban on the Obama Administration - and seems likely to continue to try. On January 29. 2017, in attempting to defend the Executive Order, Sean Spicer said, “these 7 countries were identified by the Obama administration [as] needing further travel scrutiny,” continuing, “those were identified by the previous administration, there were further travel restrictions already in place from those seven countries.” On February 7, 2017, Special Counsel to the U.S. Attorney General (and DOJ moot court alternate) August Flentje opened his argument before the Ninth Circuit, seeking to lift the stay of the ban, by referring to “seven countries, that Congress and the last President determined, in a similar context, posed special risks in terms of terrorist infiltration into our country.”
Whether these statements are the product of ignorance or an affirmative attempt to mislead, they do not survive scrutiny. As the Ninth Circuit per curiam opinion explained (in footnote 7):
Although the Government points to the fact that Congress and the Executive identified the seven countries named in the Executive Order as countries of concern in 2015 and 2016, the Government has not offered any evidence or even an explanation of how the national security concerns that justified those designations, which triggered visa requirements, can be extrapolated to justify an urgent need for the Executive Order to be immediately reinstated.Indeed, it is simply false to claim that the seven countries were identified by the Obama Administration for a purpose anything like that of the Trump Administration, or in any sense reflect a continuation of Obama-era policies. A little recent history can help set the record straight (and I thank Roya Behnia, UChicago ‘91, for sharing the basics of this story, as an Iranian-born lawyer involved from the beginning).
As many of us recall, in mid-November, 2015, there were coordinated terrorist attacks in Paris and Saint-Denis, France; and on December 2, 2015, a terrorist attack took place in San Bernardino, California. In the aftermath of these attacks, Rep. Candice Miller, a Republican Congresswoman from Michigan, attached a rider (HR 158) to the “must pass” budget bill, the Omnibus Appropriations Act of 2015. HR 158, called the “Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015,” changed the treatment of dual nationals of Iraq, Iran, Sudan, and Syria. (The July 2015 Iran nuclear deal had also attracted Republican ire from its inception, which may account for the inclusion of Iran - a country from which no terrorist attacks have come - on this list.)
More precisely, HR 158 modified something called the “Visa Waiver Program,” a Reagan-era reform to America’s immigration system that became permanent in 2000. As Miller herself stated, “the provisions didn’t ban people from coming to the U.S. ‘They merely require that these individuals undergo an additional step of screening.’” HR 158 did not block immigration or travel from any country or for any person.
The Visa Waiver Program (VWP) allows most citizens or nationals from “Designated Countries” to travel to the U.S. for tourism or business, for stays of up to 90 days, without a visa. Crucially, exclusion from the visa waiver program is not exclusion from entry; it simply means the person must obtain a visa. The current 38 VWP “Designated Countries” are Andorra, Australia, Austria, Belgium, Bruni, Chile, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Lichtenstein, Lithuania, Luxembourg, Malta, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia (hi, Melania!), South Korea, Spain, Sweden, Switzerland, and the UK. Many visitors to the U.S. cannot take advantage of this program (for example, tourists, workers, and students from China, India, or Russia may enter, but require visas). Note also that Middle Eastern nations are not part of the VWP: Egypt, Israel, Saudi Arabia, Jordan, UAE - none are on this list.
HR 158 altered travel privileges for all citizens of VWP Designated Countries who were dual nationals of Iraq, Iran, Sudan, or Syria, or had recently visited those countries. This revocation of VWP privileges applied to all nationals of those countries, even if they had never resided in or traveled there. For example, a UK citizen of Iranian origin, or one who traveled to Iran for any reason, including business and tourism, would now have to apply for a visa to enter the United States. Any person who had visited these countries after that date, who previously could have entered the U.S. without a visa, was henceforth required to apply for one.
HR 158 faced significant objection when it was proposed. As the Wall Street Journal reported at the time, concerns were raised by groups as varied as the ACLU and the Heritage Foundation. A primary concern at the time was whether EU citizens from the four countries (later, seven), or who traveled there, could enter the US without a visa. A related concern was whether the EU might reciprocate by imposing a visa requirement for nationals of those countries (especially Iran), for traveling to the EU. (Fortunately, this did not come to pass.)
Turning our attention to the four countries identified by HR 158, one is reminded of that song from “Sesame Street” that goes, “One of these things is not like the others, one of these things doesn’t belong…” And with respect to HR 158, that one is Iran, and Iranian Americans raised some special concerns about the bill. To begin with, HR 158 targeted dual citizens. In order to enter Iran as an Iranian American, Iran requires an Iranian passport. As a result, for those who wish to visit family and friends there, “dual citizenship is a necessity and not a choice.”
Furthermore, as one Iranian group pointed out, “What is remarkable to many Iranian Americans is that that there is absolutely no evidence to suggest that any individuals who travel to Iran have become radicalized or committed acts of terror. On the contrary, most take with them a deep appreciation of American values and beliefs. Moreover, the Islamic State is a sworn enemy of Iranians, making the bill doubly egregious in discriminating against the one American ethnic minority group that is even more removed from the terrorists than others. To place a group of American dual citizens into a de facto suspicious category while leaving out other dual citizens of the many countries that ISIS operates in is ineffective policy at best and highly discriminatory at worst.”
Despite organized efforts, however, the bill passed 407-19, and on December 18, 2015, President Obama signed the budget bill that included this visa waiver rider. It should be clear that this hardly amounted to an endorsement of this rider, much less any desire to target travelers to or nationals of those four countries. In February, 2016, the Department of Homeland Security added Libya, Somalia, and Yemen to this list, although dual citizens of these three countries could still participate in the VWP if they had not traveled to any of the seven countries after March, 2011. And there you have it - the true story of the seven-country list.
As the 2016 Trump campaign’s overheated rhetoric about “extreme vetting” has given way to the Trump Administration’s blunderbuss approach to immigration, the VWP, as modified, has kept Americans safe. Let’s remember, too, that there have been no documented (or even alleged) incidents of an American killed in a terrorist attack by a person born in any of the countries in question (nor, indeed, were there even before HR 158). Make no mistake, the “Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015” was deeply problematic in its own right, imposed by a Republican Congress in the grip of an alarmist hysteria and desperate to be seen to being “doing something.” But there is no equivalency between that bill, its purposes and effects, and the sweeping, racist, anti-immigrant and Islamophobic Executive Order currently under judicial review.