TLDR UpFront: A Samson-like Mega Mullet. As unlawful detentions at airports mounted over the weekend at least three Federal judges intervened individually with emergency injunctions to stay President Trump’s Executive Order. The stays temporarily overturn the immigration ban while leaving in place the legal dismantling of the refugee program and a jobs-for-bureaucrats stimulus policy review. The Executive Order itself was justified on an “alternative perspective” of what caused 9/11 from the official US stance and its poor structuring may have doomed it in front of the courts. Precedent of discretion on national security however may favor President Trump after the stays run their course and revisions are made. One potential legal avenue exists because of the bizarre path that involves Scalia’s death, the Senate’s refusal to seat Garland and Texas v. United States which found limits on Presidential authority to unilaterally rewrite statutory immigration law. (#SpoilerAlert: None of this improves security.)
Full Context in the Back:
Mr. President, welcome to Thunderdome.
The Executive Order, ““Protecting the Nation From Foreign Terrorist Entry Into the United States,” signed by President Trump on Friday night has four broad goals related to incoming arrivals to the United States:
- Prevent individuals from seven “banned” countries identified by the Department of State from in the EO from entering the country for 90 days.
- Return “banned” individuals from whence they came.
- Immediately cease all refugee resettlement plans.
- Conduct reviews of the visa, refugee resettlement. (1)
The EO starts with a justification that has been overlooked in all the furor stating:
“Perhaps in no instance was that more apparent than the terrorist attacks of September 11, 2001, when State Department policy prevented consular officers from properly scrutinizing the visa applications of several of the 19 foreign nationals who went on to murder nearly 3,000 Americans.”
I’ve read the 9/11 Commission Report and I didn’t recall that actually being a major cause. I went to an online copy of the report and even after an hasty review I couldn’t find anything even remotely close to that description being in the report. Not by word searches of “consular”, “application”, “visa”, “scrutinize” or even in recommendations and findings. I do remember that some of the hijackers had overstayed student visas, and that the investigation found unsurprisingly that the massive government bureaucracy managing visas was performing at about the same level as most US massive government bureaucracies do, that is to say poorly. However, the 9/11 Commission focused primarily on a failure of imagination that such an attack could even happen, the CIA and FBI sharing intelligence and the FAA failing to properly notify the military on the day of the attack. (2)
But blaming 9/11 on a broken immigration system is not new. I tracked down a very comprehensive report by CSI.org, a think-tank focused on immigration reform to reduce illegal immigration and increase security through visa reform. In that report CSI argues that it as failures of the visa system that helped cause 9/11 using language that could be seen as a robust justification for Trump’s opening statement. (3)
But as a counterpoint, the Inspector General for the Department of Justice, in interviewing the INS agents mentioned in the CSI report found that the failures of the agents were behavioral, and not policy, stating:
“The INS’s prevailing mindset in dealing with foreign students at the POEs until September 11 was that students were not a concern or a significant risk worthy of special scrutiny. Consistent with this approach, INS inspectors and supervisors, who incorrectly believed that they had broad discretion to grant waivers, would admit students through the waiver process when they appeared at POEs without the proper documentation and did not present any evidence of inadmissibility. Since September 11, the INS has issued guidance to the field restricting use of the waiver process and has also taken other steps to more closely scrutinize the admission of students to the United States. We discuss those steps in Chapter Seven of this report.”(4)
It’s an open debate to what extent “better visa screening” might have actually stopped 9/11. But I think it’s important to begin by noting that the justification Trump uses for this exercise is a 15 year old appeal to a cause of 9/11 that isn’t even the official stance of the United States government. Although there are good arguments to support that failures in visa screening processes contributed to 9/11, subsequent investigations showed those failures were of individuals not following the actual policy; rather than of the policy itself.
Traditionally and Constitutionally the President is given wide discretion in both determining what constitutes a national security threat and then directing Federal agencies and the US military on how to conduct themselves to respond to those threats. He or she doesn’t have to be especially accurate – windmills abound and tilt away. However, a certain amount of technical precision and respect for existing law is usually appreciated and this is where President Trump’s EO went far afield. It’s also traditional to recognize that the Federal government is a mighty oil tanker and not a two-door coupe, and even a well worded order to parallel park an oil-tanker in a manner fit for a jet ski is going to wreak havoc. As a matter of principle, and law, this means providing implementation clarity that minimizes the risk of inadvertently violating Constitutional rights such as Due Process.
In the Presidential directive itself are three different terms to refer to the “persons” the seeks to prevent entering the US. Foreign-born, foreign nationals and those traveling from banned countries regardless of their country of residency. Here’s why that’s confusing. Say an Iranian expat fled the Revolution thirty years ago, is a permanent legal resident in the US and holds a green-card takes a vacation in Haiti. When they return – they are still “foreign born” of Iran. Detained and returned. Then there’s the passport-holding British citizen born in Iraq entering under a visa-waiver program, but because they are foreign born of Iraq, they might be detained. Finally there are honest-to-gosh foreign national folks – who might just be here, already, on entirely legitimate visas. Like Associate Professors at the University of Massachusetts. Detained and returned.
Now some may argue that some of these may be misinterpretations of the executive order, and they could be right on a technical interpretation. But consequences matter. The TSA and INS agents expected to implement this went from approving valid visa holders and denying those who were not valid to denying valid visa holders in some cases and approving them in others. Even if someone can sit back on a laptop, look up the references in the EO, decipher the wording and say “Aha! They’re doing it wrong! It shouldn’t be done that way,” understand the agents implementing this don’t have access to those laptops nor the time to make those determinations while processing through hundreds of thousands of visitors daily.
Written at echelons above reality, jammed through without much review or time to prepare, the “ground-truth” of INS and TSA agents who may not fully comprehend complex instructions was never taken into account. And that’s before the lawyers and protesters showed up. For example, President Trump clarified that although there is no explicit religious test in the ban, he intends to provide preference for Christian refugees fleeing Syria. However, the ban as already resulted the detainment and return of Christian refugees fleeing Syria. Whoops.
Because the ban did not classify between different kinds of individuals it caught legal residents (green card holders) in the same net as foreign aliens. Cue Due Process violations. When you’re a legal resident of the country, whether it’s the local, state or federal government detaining you – there has to be reasonable suspicion and grounds to do so, and often a warrant. Absent those conditions – it’s an illegal detention. This isn’t rocket science. The optics aren’t hot either. Alongside Christian refugees sent back to Syria to face what the President himself described as a sure beheading are an Iraqi translator who spent ten-years working with US Armed Forces during the Iraq War, granted a special visa by the Department of State, detained on his arrival and threatened with deportation.
Protests hit the airports around the country and the outrage by other nations, rightfully, at what they view as the unlawful treatment of law-abiding citizens has been pretty sharp. Logistically it’s a right cock-up. Our airports are not designed to be detention centers, nor legal hearing avenues. Speaking to first principles all of this is a distraction from security vetting – the scarce resources we have now playing crowd management, EO-interpreter, detainee-guards and arresting officer, rather than focusing on security. Another first principle – strategically we should be sending a message that undercuts the salafi takfiri, rather than supports their narrative that the west is at war with Islam, rather than salafi takfiri.
Into this madness over the weekend lawyers descended like Space Invaders – stalling the deportations, prying individuals out of the hands of Federal agents who aren’t really sure if they should or shouldn’t be holding them and filing lawsuits with whatever judge they could find that was still awake.
Three lawsuits in particular have results in emergency stays that have, when combined, over turned most, if not all of the executive order. Late Saturday night US District Judge Donnolly issued an emergency stay against deporting any detained individuals, in effect reversing the second goal of the EO. There’s not much insight into her order other than the stay. (5) It is with some irony however I’ll note that the US Attorney belatedly and perhaps regretfully arguing on behalf of the US in this case noted: “”This has unfolded with such speed, we haven’t had an opportunity to address any of the important legal issues.” That’s a swell argument, but it should be made to the P-man in the C-Suite, not the District Judge. (6)
Early Sunday morning, two Boston Judges also jointly ruled on a request for emergency stay on the detention portion of the executive order. That case had been filed on behalf of Associate Professors of the University of Massachusetts who had been detained returning to the country from a trip abroad. Justices Burrows and Dein issued either separate or joint seven-day stays on any detention of individuals impacted by the Executive Order. (7) This reversed the first element. This means that #1 & #2 of the original four in effect nullified pending additional legal review. The cessation of the Syrian refugee program appears to still be in place. And of course bureaucratic reviewers reviewing reviews of prior reviews can still review reports of reviews to their hearts content. So. More paper.
The Department of Homeland Security (DHS) which owns both INS and TSA has announced it is going to try and serve three masters – “comply” with judicial orders, “faithfully” enforce the immigration laws as established by Congress, and “implement” President Trump’s EO.(8) Those words and that order matters. “We will” comply is generally taken as a higher duty of intent than “we will try” faithfully or “we’ll do our best” to implement. I take this as DHS signaling that it puts the court orders first, the Congressional law as it stands and the wacky whatever-was-meant EO a third. They didn’t ask for this. However, the DHS is a big organization with lots of moving parts. It can’t turn on a dime and President Trump has already done smoking doughnuts in the parking lot with its employees scrambling operations. A close eye will have to be kept by the US Marshall’s who enforce Court mandates, observers, activists, legislators, agency managers and everyone else to ensure that the mess gets sorted out.
Additionally the DHS made an odd comment that this ban “only” affected “less than 1% of the 325,000 visitors” who travel into the US daily. Other media reports have put this figure at around 100. Which doesn’t sound like much until you consider that was for the first day’s tally. Taking the <1% number at face value that leaves a range of ~100-3,250/day. I hope I don’t have to write a simulation of the accumulation integral over 90 -120 days of that rate to indicate that this is actually quite a number of people. If the orders hadn’t been stayed, it’s entirely possible that the system would’ve broken down or required some sort of extraordinary measure (detention outside of the airport) to maintain itself after just a week or two. Again, indications this was not well thought out by people who don’t understand large numbers.
In the long term this may all get sorted out. The recent history of President’s abusing Presidential national security discretion to abuse non-American citizens isn’t exactly promising. However, our system works on checks and balances. Someone has to raise a hue & cry that something is wrong. If no one does, perhaps because one side is making oogly eyes and the other is in agreement with the unlawful acts; it’s very hard for change to come about.
Guess which President has *actually* used questionable legal authority to kill thousands of civilians far away from any war zone?
Because I’ll give President Trump credit in this regard. Yes credit. He didn’t hide this. We didn’t have to find out about it from a New York Times special investigative report or leaked internal documents. We didn’t have to wait for a Congressional hearing to find the memo. He pretty much openly said “I’m going to violate the Constitution this way” which is a bit more transparent than the last two guys who used national security justifications to violate the Constitution. If this is an indication of things to come one positive is that the lag time between a potential violation of the Constitution by Presidential action and that action becoming manifestly apparent should drop considerably.
And there is one bizarre twist of fate that may provide some hope. When Supreme Court Justice Scalia died on the bench, and the Senate failed to confirm President Obama’s pick Garland to replace him, a specific case was in the process of being heard by the Supreme Court. Texas v. United States. This case arose out of the President’s use of Executive order to extend to a “class” of immigrants certain legal benefits (known as Dreamers.) The basis of the case was that President Obama was using authorities not explicitly granted to him by immigration law; and both the District, and then Appeals court found that sufficiently to be the case in order to grant the injunction.
Even though SCOTUS heard it, having only 8 members, when they ruled on it was a 4-4 split and the case was upheld by default at the ruling of the Appeals level. This was taken as a “major blow” to President Obama’s immigration agenda as it kneecapped the Dreamer initiative which now appears to have been dealt a mortal blow by the election of President Trump. But the precedent it leaves behind is interesting. Because the Appeals court ruling is now the law of the land, or at least that District. The precedent set by that ruling is that there are limits on Presidential ability to modify immigration policy by fiat.(9) Especially when a President leaves the boundaries strictly set by Congress. Both of Trump’s EO’s have a kind of Bannon-esque Yogi Berra wording where its not clear what boundaries they adhere to, if any. Which make them ripe for falling under this precedent.
Obviously, the President is given vast discretion for national security issues. So by waving the red flag of national security, President Trump might get a pass within the existing authorities, because there may be “except in cases of national security” littered all over there. But President Obama was trying to wholesale change an entire “class” of immigration through his executive prerogative of agency prioritization, and the District and Appeals said that’s just not so. To the extent that President Trump is also identifying “classes” of people – by origin, by religion etc.; he seems to be skirting up against that same line.
Because take the counterfactual. Garland is seated as the 9th Justice, the case is heard and decided by a majority for President Obama. (I’m not saying it would, but this is the counterfactual.) Then clearly Trump’s discretionary power would be much greater than it is today, with the case having gone the other way, and recognizing a limitation. To the extent that ruling would even apply to these EO’s (it might not) he would be benefiting from them having gone in favor of President Obama. Wacky.
Of course realizing there are stronger Constitutional limits on what can be done to abuse Presidential power on US soil President Trump may just follow in President Obama’s footsteps. Seeing the difficulty President Bush had in dealing with unlawful detainees at Guantanamo President Obama settled on the elegant solution of simply killing them, their families, and anyone standing nearby via drone strikes. Even if they were far from any battlefield. To the extent keeping visitors from the banned countries is too much of a hassle at US airports…wait…I probably shouldn’t be giving Trump any ideas.
Do you have anything to declare?
Finally – I think it’s worth noting because this is an area I study. None of this will improve security. The entire line of thinking – whether conservative or liberal – of tying country of origin to past attacks, probability and future risk is entirely misguided. Please – I beg of you stop sharing lists and links with relative probability of a terror attack by attributes such as ethnicity, country of origin, nationality, motivation etc. I understand the point that “this is really weird and it’s silly to be basing policy on this.” Yes. Yes it absolutely is. But the operational happenstances which often determines a completed from failed terror attack also make such comparison lists statistically noisy by their very nature.Take any of a number of recent comparisons of which country “contributed more” to US terrorism. It’s all based on a priori, and that a priori itself has some ridiculous caveats built in that we kind of gloss over.
If FBI and CIA get together a bit more pre-911, Saudi Arabia virtually disappears off that list. While if British intelligence was a few weeks behind in 2006 several hundred deaths would pop up on that list attributed to Pakistan. Same if the 2010 Times Square Car Bomb had detonated, instead of just smoked.
Many terrorist plans are begun, most are interdicted, few become operational and even less succeed in generating mass causalities. The threat of terrorism however is completely unrelated to that output number. Threat assessment is forward looking and would contain a host of different factors. This makes backward looking analysis dangerously noisy to current or soon-to-be-current events. Take the graph below from a ThinkProgress article written in October of 2015.
If you stare at this long enough it will change.
The premise of the article is that there is more danger from far-right extremists groups than there are foreign motivated salafi takfiri terrorism. And that may have been accurate on Oct 16 when it was written. But by December 2nd the graph on the left would’ve jumped to 41 (San Bernadino attack) and by June of the next year leaped to 91 (Orlando Pulse Club Shooting). Two events alone double the number. This isn’t to say tomorrow another Timothy McVeigh truck bomb attack doubles or triples the number on the right. This is noisy data, heavily weighted to whatever the last completed incident was. This is why we shouldn’t use data of this nature for analysis of current or future threats. And if that goes for social media, that goes especially for national policy.
However, sharing links about the completely rare nature of terrorism itself is totally legit. Especially if the link has a solid methodology and sourcing to back it up. (10)
Data,sources, asterisks, and N/A’s oh my!
Regardless of where it comes from, terrorism remains a statistically a rarity in the US. And despite the one aberration of colossal compounding systemic failures that was 9/11 – whether that was caused by miscommunication between the FBI or CIA or consular shenanigans – the behavior trend over time has been for it to remain a statistical rarity.
I’ll end with advice I always give when I get asked by people worried about terrorism and wanting to know three things they can do to improve their personal safety. I always respond the same:
- Buckle your seatbelt.
- Stay away from pools.
- And avoid ladders.
So unless visitors being banned are invading our countries armed with ladders and kiddies pools, threatening to unbuckle seatbelts of the unwary, I can’t possibly conceive of what meaningful security impact this entire exercise is going to have. It violates the Constitution, it provides no value, it aids our enemies and it needs to be reversed, not by Judges, but by the individual who first issued it.
(1) Interestingly, the White House has not published a copy of this particular EO on the White House website (https://www.whitehouse.gov/briefing-room/presidential-actions) . The copy I am using was obtained by the NY Times and may be found here: https://www.nytimes.com/2017/01/27/us/politics/refugee-muslim-executive-order-trump.html