Friday, February 10, 2017

No #Alternative Facts: The True Story of the 7 Country List

By Diane Klein

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.


el roam said...

Thanks for the post , I personally think that Obama was a great American president , and even further , the greatest one .Yet , a broader picture , should be introduced , for balancing the issue , since , he is considered , at least relatively to Trump , a " mega liberal " . Is it really so ?? Can the tightening of immigration policy , be considered as that much inhuman compared to Obama's actions . Maybe in subsequent comments I shall present it and prove otherwise , but in legal terms , the 9th circuit , hasn't ruled yet , about the reasonableness of the immigration policy ( and the list anyway ) but has stated clearly , I quote :

" We assess those factors in light of the limited evidence put forward by both parties at this very preliminary stage and are mindful that our analysis of the hardships and public interest in this case involves particularly sensitive and weighty concerns on both sides. "

end of quotation :

This is because, the court has prevailed not on the greater issue, but the provisional measures, and the irreversible harm it would cause in this stage to the states . all while , I quote :

" To the extent that the Government claims that it has
suffered an institutional injury by erosion of the separation
of powers, that injury is not “irreparable.” It may yet pursue
and vindicate its interests in the full course of this litigation."

End of quotation :

And finally indeed , under the title of :

" The Balance of Hardships and the Public
Interest "

I quote :

" The Government has not shown that a stay is necessary
to avoid irreparable injury. Nken, 556 U.S. at 434. Although
we agree that “the Government’s interest in combating
terrorism is an urgent objective of the highest order,” Holder
v. Humanitarian Law Project, 561 U.S. 1, 28 (2010), the
Government has done little more than reiterate that fact.
Despite the district court’s and our own repeated invitations
to explain the urgent need for the Executive Order to be
placed immediately into effect, the Government submitted
no evidence to rebut the States’ argument that the district
court’s order merely returned the nation temporarily to the
position it has occupied for many previous years "

So , Trump and his team , and it was clearly predictable , have chosen the wrong tactic and timing simply . Yet , the broader issue , and the potential threats such countries pose , should be yet , or , shall be yet prevailed in court one may assume .


Shag from Brookline said...

Alternatively, some may not so assume. [No "assume" jokes,please!]

matt30 said...

"DOJ moot court alternate"

Ouch. We need some cream for that burn. Poor guy.

Asher Steinberg said...

I guess I'm a little confused as to what part of these statements you think doesn't "survive scrutiny":

“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.”

“seven countries, that Congress and the last President determined, in a similar context, posed special risks in terms of terrorist infiltration into our country.”

It seems to me that everything you say confirms that there were travel restrictions as to nationals of or visitors to these countries, that they were identified as "needing further travel scrutiny," that Congress and the President did determine, or sign legislation determining, they posed special risks in terms of terrorist infiltration. Even the footnote you cite in the Ninth Circuit's order says that "Congress and the Executive" identified the countries as "countries of concern" due to "national security concerns that justified . . . [heightened] visa requirements," which is exactly what Spicer and Flentje said. As far as I can tell, the only thing at all that you disagree with in Spicer and Flentje's statements is their suggestion that the President "endorsed," rather than merely signed, the bill that revoked VWP privileges as to four of the seven countries, and the phrase "in a similar context" in Flentje's statement. And as far as that goes, yeah, it's true that these are fairly dissimilar contexts inasmuch as the EO is vastly more onerous than the revocation of VWP privileges - though they're hardly completely unrelated contexts and I'm not sure why it matters for legal purposes that the current administration is much more sensitive to the national security concerns these countries concededly pose than the prior administration (though it certainly matters as far as evaluating whether the EO's good policy or not). Otherwise, these seem like perfectly correct statements; I'm not sure if I would even call them misleading. If they are so is footnote 7.

Diane Klein said...

Asher, let me try to clarify further. No Middle Eastern country is in the VWP. NONE. Not Israel, Jordan, UAE, Saudi Arabia. Etc. NONE OF THEM are in the VWP. So when the 4 countries were taken OUT of the VWP, they were put on the SAME footing as those other Middle Eastern countries (the 3 African countries added later were put on a similar footing to other African countries, which are also, you might notice, mostly not on the Designated Countries list). On that basis, under Obama, all these countries were on the SAME FOOTING (visa needed, no ban). Whereas, under the EO, they are on a DIFFERENT FOOTING - they are treated WORSE than other ME (and African) countries, where a visa is necessary but available. And that is why it is affirmatively misleading to suggest that THIS EO is anything like that prior modification of the VWP. And if that weren't enough...under the prior modification of the VWP, any national of ANY VWP country who had traveled to the listed countries, was removed from the VWP, regardless of their OWN nationality. Is that what this EO does? No, it does not.

Unknown said...

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