June 29, 2017

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TSC IntelBrief: Travel Ban 3.0

It is exactly five months since the Trump Administration enacted its first visa travel ban from several countries and a parallel halt to refugee entry into the U.S. The travel ban was to last 90 days, and the refugee halt was to last for 120 days, while the administration worked to fix what it called ‘serious flaws’ in the vetting system.

It is exactly five months since the Trump Administration enacted its first visa travel ban from several countries and a parallel halt to refugee entry into the U.S. The travel ban was to last 90 days, and the refugee halt was to last for 120 days, while the administration worked to fix what it called ‘serious flaws’ in the vetting system. According to the administration, the serious flaws in the visa and refugee application processes constituted such a threat to national security that the orders had to be implemented immediately, without prior notice. On June 29, the latest version of the travel ban, modified in light of the June 26 decision by the U.S. Supreme Court to hear two cases on President Trump’s travel ban, will take effect, again with the same rationale of needing 90 and 120 days, respectively, to assess urgent security issues, even though it has been 151 days since the first ban was attempted.

The first executive order, enacted on January 29, caused chaos at airports across the world. That ‘ban’ – a term preferred by President Trump – was blocked by the courts; it was written so broadly and poorly, even Green Card Holders (Lawful Permanent Residents of the U.S.) were being denied entry. The list of banned countries included Iraq, with whom the U.S. is partnering closely to militarily defeat the Islamic State. The second ban, issued on March 6, was also blocked by appellate courts, leading to this week’s partial stay by the U.S. Supreme Court.

The latest executive order will take effect at 8:00 pm (Eastern Time) on June 29, and incorporates the vague guidance from the Supreme Court on what constitutes a “bona fide relationship” with the United States. Nearly all Supreme Court decisions are vague in how to implement policies, deferring the specifics to the Executive Branch. The guidance, sent to all U.S. embassies and consulates, will affect those seeking visas from six countries: Libya, Iran, Somalia, Sudan, Syria, and Yemen. Applicants will have to show some documented proof of ‘close’ family or business ties with the U.S. These family ties do not extend to grandparents, aunts, uncles, cousins, or fiancees.

With respect to visa applications, the latest version suffers from the same flawed national security logic as the first two. Firstly, it is already exceedingly difficult to obtain a visa from these six countries: the new ‘extreme’ vetting measures are essentially the same as the ones implemented after September 11, 2001. Secondly, no one with a visa from these six countries has committed an act of terrorism in the U.S. since 2001. The original travel ban stressed the threats posed in pre-September 11 vetting processes, which haven’t existed in years.

The halt to refugee entry to the U.S., which is already half of what it was in recent years, will likely have more of an impact if it remains in place beyond the 120 days. It is unclear why the administration needs these 120 days to fix any entry process, as the alleged urgent flaws in selection, vetting, and approval would presumably have been fixed in the 151 days since the first attempted ban. The same ‘close’ ties to the U.S. that apply to visa applicants, which is not an unreasonable standard outside of tourist visas, also apply to refugees, which is far more problematic. By definition, refugees are fleeing unsafe and intolerable situations in their home countries; it is a situation borne out of desperation. Yet, according to independent studies referred to in a New York Times article about the new ban, an estimated four out of ten refugees lack any connection to the U.S. before they arrive.

The issue will be settled to some degree when the Supreme Court hears the case in October. Yet, the larger political and social implications of viewing immigration and refugee entry through a security lens will likely continue in the U.S. and elsewhere. The conditions that have created the current surge of refugees will not improve in the foreseeable future, and the pressure this will put on the E.U., Jordan, Kenya, and other countries that have dealt with huge numbers of desperate refugees for years will increase. What this means for the U.S., as it struggles with its position of global leadership on both the security and human rights fronts, remains to be seen.

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