Analysing Trump's new travel ban

The US administration hopes that the narrower order will survive court challenges

President Donald Trump on Monday morning approved a new travel ban executive order, replacing the one he issued in January that had spawned chaos nationwide and was blocked by the federal courts.

The new order bars entry of some people from six predominantly Muslim countries — Iran, Libya, Somalia, Sudan, Syria and Yemen — for 90 days and suspends entry of some refugees for 120 days. But it carves out many exceptions and is less sweeping than the original. The administration hopes that the narrower order will survive court challenges.

Here are some excerpts from the executive order, with comments by The New York Times:

— It invokes a vague threat of terrorism.

“The screening and vetting protocols and procedures associated with the visa-issuance process and the United States Refugee Admissions Programme (USRAP) play a crucial role in detecting foreign nationals who may commit, aid, or support acts of terrorism and in preventing those individuals from entering the United States. It is therefore the policy of the United States to improve the screening and vetting protocols and procedures ...”

This is toned down from Trump’s original order, which invoked the terrorist attacks of September 11, 2001, even though none of the 19 hijackers were refugees or nationals of the countries targeted by the directive, which had also included Iraq.
— It defends the previous order against accusations of religious discrimination.

“Executive Order 13769 did not provide a basis for discriminating for or against members of any particular religion. ... That order was not motivated by animus toward any religion, but was instead intended to protect the ability of religious minorities — whoever they are and wherever they reside — to avail themselves of the USRAP in the light of their particular challenges and circumstances.”

During the presidential campaign, Trump flatly proposed banning Muslims from entering the United States. That evolved into his original order, which permanently barred Syrian refugees and temporarily barred entry of nationals from seven Muslim-majority countries.

This was done while prioritising admission of refugees who are persecuted religious minorities — an exception that many understood to be an implicit reference to welcoming Christians from West Asia. One of the federal judges who blocked the original order, citing its history and context, ruled that it likely amounted to unconstitutional religious discrimination.

— Iraq is off the list.

The “close cooperative relationship between the United States and the democratically elected Iraqi government, the strong United States diplomatic presence in Iraq, the significant presence of United States forces in Iraq, and Iraq’s commitment to combat Islamic State, justify different treatment for Iraq.”
Trump’s original order blocked Iraqis, too, but his new one left them out. The Pentagon had lobbied the White House to drop Iraq from the list because the backlash was undermining the joint campaign to battle the IS.

The new order emphasises that Iraqis who have battled the IS have “earned enduring respect.” It also says that since the original order, Iraq has undertaken unspecified steps to improve travel documentation and information sharing.

— It is vague about what it will achieve.
“The secretary of homeland security, in consultation with the secretary of state and the director of national intelligence, shall conduct a worldwide review to identify whether, and if so what, additional information will be needed from each foreign country to adjudicate an application by a national of that country for a visa, admission or other benefit under the INA (adjudications) in order to determine that the individual is not a security or public safety threat.”

Obviously, officials screening visa applicants and refugees are already looking for security threats and already gather many types of information for that purpose. The order justifies undertaking this pause so officials can try to think up some
additional category of information to ask for while vetting people from troubled countries.

— It carves out numerous exceptions.

“Notwithstanding the suspension of entry pursuant to Section 2 of this order, a consular officer, or, as appropriate, the commissioner, US Customs and Border Protection (CBP), or the commissioner’s delegee, may, in the consular officer’s or the CBP official’s discretion, decide on a case-by-case basis to authorise the issuance of a visa to, or to permit the entry of, a foreign national for whom entry is otherwise suspended if the foreign national has demonstrated to the officer’s satisfaction that denying entry during the suspension period would cause undue hardship, and that his or her entry would not pose a threat to national security and would be in the national interest.”

One of the controversies of Trump’s original order was that it swept too broadly, initially including green-card holders, people who already had valid visas, and refugees whose travel to the United States had already been approved. His new order specifically exempts numerous such categories of travellers. It also includes a potentially huge exception for everyone else: consular officials are empowered to permit new applicants to travel immediately case by case.

— It still curbs the refugee programme, but not as much.

“The secretary of state shall suspend travel of refugees into the United States under the USRAP, and the secretary of homeland security shall suspend decisions on applications for refugee status, for 120 days after the effective date of this order, subject to waivers.”

The original order shut down entry by most refugees for 120 days and barred Syrian refugees permanently. The new version is significantly watered down. Syrians are not singled out for a permanent ban, and refugees whose travel has already been approved may still come into the United States without delay.

Like the original order, however, the new order caps the number of refugees who may be admitted each year at 50,000, down from 1,10,000 under president Barack Obama.

— It calls for publicising reports of terrorism crimes committed by foreigners.

“To be more transparent with the American people and to implement more effectively policies and practices that serve the national interest,” the government will compile and periodically publicise reports about “the number of foreign nationals in the United States who have been charged with terrorism-related offences while in the United States” and acts of “gender-based violence against women.” It will also publicise “the immigration status of foreign nationals charged with major offences.”
Trump is directing the government to generate a regular cycle of news stories focusing people’s attention on crimes committed by non-citizens.