The National Review – standing athwart history, yelling, “Build that Wall!” – has posted a defense of Trump’s executive order on its website, titled “Trump’s Executive Order on Refugees – Separating Fact From Hysteria“. Among other things, the article states: “the order imposes a temporary, 90-day ban on people entering the U.S. from Iraq, Syria, Iran, Libya, Somalia, Sudan, and Yemen. These are countries either torn apart by jihadist violence or under the control of hostile, jihadist governments. The ban is in place while the Department of Homeland Security determines the “information needed from any country to adjudicate any visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.” It could, however, be extended or expanded depending on whether countries are capable of providing the requested information. The ban, however, contains an important exception: “Secretaries of State and Homeland Security may, on a case-by-case basis, and when in the national interest, issue visas or other immigration benefits to nationals of countries for which visas and benefits are otherwise blocked.” In other words, the secretaries can make exceptions — a provision that would, one hopes, fully allow interpreters and other proven allies to enter the U.S. during the 90-day period. To the extent this ban applies to new immigrant and non-immigrant entry, this temporary halt (with exceptions) is wise. We know that terrorists are trying to infiltrate the ranks of refugees and other visitors. We know that immigrants from Somalia, for example, have launched jihadist attacks here at home and have sought to leave the U.S. to join ISIS.”
The rumors of Somali terrorists have not borne out. However, the terrorists who did attack us on 9-11 were from Saudi Arabia, Egypt and the United Arab Emirates, and these countries are conspicuously not on Trump’s executive order. Not coincidentally, these countries, along with Turkey, are among several countries where Trump has business dealings and are also not on Trump’s executive order.
The secretary of DHS has not issued any exceptions to the executive order.
The order affects legal residents with green cards– who presumably had thus been vetted. It is literally as I write that it was announced that the policy does not apply to green card holders, even though a DHS spokesperson had said they would need additional vetting.
The order has been described as giving priority to Christians. Except that among those sent back were Syrian Christian refugees.
And Trump’s defenders, including the National Review, insist that the order is NOT a “Muslim ban.” How do we know this? Because when invited to Jeanne Pirro’s Fox News show, Rudolph Guiliani said “OK. I’ll tell you the whole history of it. So when he first announced it he said “Muslim ban.” He called me up and said, “put a commission together, show me the right way to do it legally.” I put a commission together with Judge Mukasey, with Congressman McCaul, Pete King, a whole group of other very expert lawyers on this. And what we did was 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. Perfectly legal, perfectly sensible, and that’s what the ban is based on. It’s not based on religion. It’s based on places where there are substantial evidence that people are sending terrorists into our country. ”
See? Not the same.
As Vox reporter Dana Lind put it, “The best argument the Trump administration has in response is that the executive order doesn’t do anything to single out Muslims — it bans people based on nationality, and the vast majority of Muslims don’t live in the seven countries singled out. (The administration has implied that it will exempt Christians from those countries, but that’s not happening in all cases.) It’s going to be much harder to make that argument when there’s a quote, in the public record, from someone claiming to have been involved in developing the policy, all but saying that the intention of it was to ban Muslims — but in a way they could sneak past a judge. In fairness, Giuliani does emphasize that the way to “legally” ban Muslims is to ignore religion and focus on “danger” instead. But in order for the government to argue in court that that’s what the executive order does, it’s essentially going to have to argue that even though the president wanted to violate the Constitution, he was successfully prevented from doing so. That’s a trickier argument than just saying he wasn’t trying to violate the Constitution at all. ”
Something else must also be brought up in all this. Some apologists have brought up the point that nowhere in Trump’s order does it specify countries except for Syria. The press had been reporting bans from seven specific countries: Iraq, Iran, Syria, Libya, Somalia, Sudan and Yemen. This was in accordance with existing Obama Administration protocol from 2015 and 2016. (Of course most conservative critics who point this out are the same ones howling and screaming about the increased number of Syrians Obama let in before leaving office. But I digress.)
This Obama Administration action is quite real. And on this page, I have brought up articles mentioning concerns from both libertarians and liberals about how it is a matter of concern that even a relatively progressive administration was willing to undertake actions that can undermine the rule of law, and are now a matter of concern when a non-liberal is in charge. The main reason legal opposition can be raised to Trump’s maneuver is because, according to Vox, “Steve Bannon is the chief White House strategist and former Breitbart chief, while Stephen Miller is a former Jeff Sessions aide who now serves as the top policy aide in Trump’s White House. And according to this report it is the two of them — Trump’s “two Steves,” as he calls them — who are deciding how this executive order text should be interpreted, and holding the fates of hundreds of thousands of green card holders in their hands. CNN also reports that the Homeland Security Secretary and his department’s leadership only “saw the final details shortly before the order was finalized.” The White House didn’t seek feedback from the Justice Department’s Office of Legal Counsel — usually an ordinary part of the process — either.”
The reporter also implies that the Homeland Security Secretary was not asked for input. This is what happens when you only trust your legal decisions to people whose previous resume entries consisted of “Local Zoo, responsibilities: scratching balls and flinging feces.”
But it also means that such legal justification that does exist for the order was only possible because of previous officials who DID know how to do their jobs. All this is why libertarians (and others who are suspicious of government even when their ‘team’ is in charge) have been criticizing the real and disturbing power grabs by both parties, especially as the “War on Terror” becomes a permanent government posture. This case is a concrete example of that very point. As I said recently, “Donald Trump has neither the intellect nor the political grounding to formulate policy himself, and neither do most of his plutocratic supporters/Cabinet members. Apologists might argue that such unscrupulous people would seize power regardless, but Democrats, specifically Obama, made it that much easier for them by initiating expansions of the state – when they were not approving them under George W. Bush.”
The bad news is that it seems that after only nine days, Trump and his team really do want to create a fascist dictatorship. The good news is that so far Trump seems to be just as incompetent at that as he was at running Atlantic City casinos. The REAL bad news is that it may not matter, because there is now an institutional trend towards giving the executive power carte blanche, which Trump is counting on, and even if most of the country and its legal institutions are now on to him, it may not be enough.
The Trump Administration has already passed the point where supporting it amounts to active opposition to the principles of American government. And since the Administration IS the government, that means that those who want to support the government are going to have to make some hard choices.