Update on Trump’s Executive Order

We live in very interesting times! It has become apparent that the executive order on immigration was pushed through without consultation as officials from both the State Department and the Department of Homeland Security have stated that they were not consulted, and the heads of other agencies such as the Customs and Border Protection and Citizenship and Immigration Services were only made aware of it via phone calls around the same time that Trump was signing.[1]

There is a great article in Rolling Stone Magazine about the legality, or illegality, of this executive order. In addition to probably violating freedom of religion under the First Amendment by denying entry to immigrants from the seven nations based in part on their religion, the fact that people from these countries in question were detained this past weekend because of where they come from and some of them were held for many hours and not allowed to contact their lawyers violates the Fifth Amendment’s right to equal protection and due process under the law. Furthermore, the Immigration and Nationality Act, “specifically forbids discrimination on the basis of a person’s race, nationality or place of birth […] in the issuance of visas.”[2] However, it’s not just domestic laws that are being violated, but international law as well. If indeed any of the refugees that were detained after arriving in the United States were deported back to their home countries, this would have been in violation of the United Nations Convention Against Torture of which the United States is a signator. Article 3 of this convention states that, “No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”[3]

Today, only hours after Acting Attorney General Sally Yates told lawyers at the Justice Department not to defend this executive order, Trump fired her and appointed US attorney Dana Boente to fill her place until his chosen nominee for the post, Jeff Sessions, is confirmed. Boente has since informed staff that the executive order is legal and that he and they will be defending it.[4]

Though many world leaders and the United Nations have condemned this executive order on immigration, the Trump administration appears adamant that they are doing the right thing to protect American citizens. In his characteristically un-presidential like way, Trump tweeted that, “If the ban were announced with a one week notice, the ‘bad’ would rush into our country during that week. A lot of bad ‘dudes’ out there!”[5] Even President Obama has broken the unwritten promise to not comment on his successor and has spoken out against the order and declared his support for those out protesting.

Possibly even more surprising is that already over 200 State Department employees have signed a ‘dissent channel’ memo, an internal memo that allows employees to speak up when they disagree with policy, expressing their opposition to and strong disapproval of the order. Normally dissident channel memos are kept private and signed by the one person who is dissenting. Having so many sign, and the number is still growing, is unprecedented.[6] Here’s an excerpt of that memo. “A policy which closes our doors to over 200 million legitimate travelers in the hopes of preventing a small number of travelers who intend to harm Americans from using the visa system to enter the United States will not achieve its aim of making our country safer. Moreover, such a policy runs counter to core American values of nondiscrimination, fair play, and extending a warm welcome to foreign visitors and immigrants. Alternative solutions are available to address the risk of terror attacks which are both more effective and in line with Department of State and American values.”[7] It goes on to say that in fact very few terrorist attacks have been committed by recent immigrants to the US, and that most terrorist attacks have been committed by native-born or naturalized citizens. Furthermore, the memo states (as I mentioned in my previous post) that foreign nationals who have committed acts of terror in the US have come from countries not included in the ban e.g., Saudi Arabia and Pakistan. The most troublesome part of the memo talks about how Trump’s executive order will actually increase anti-American sentiment and make Americans less safe. By singling out Muslim countries, “we lose access [to] the intelligence and resources need [sic] to fight the root causes of terror abroad, before an attack occurs within our borders[…]. When the 220 million citizens of these countries lose the opportunity to travel to the U.S. overnight, hostility towards the United States will grow.”[8] These State Department employees know what they’re talking about, they’re the ones on the ground overseas and quite probably some of them are posted in one or more of the seven banned countries.

So what should be done? First off, this executive order needs to be withdrawn immediately. Second, the Trump administration needs to sit down and consult with those currently working in the State Department and other agencies to come up with solutions that will improve their cooperation and communication. I am sure that there are plenty of federal employees out there with good ideas to improve the visa vetting process that do not alienate one religious group or engender hate and fear. Trump and his administration need to remember the values that Americans and others respect about the United States and not turn our allies into our enemies.





[1] https://www.nytimes.com/2017/01/29/us/trump-refugee-ban-muslim-executive-order.html?_r=0

[2] http://www.rollingstone.com/politics/features/all-the-ways-trump-defies-the-law-by-targeting-muslims-w463616

[3] http://www.ohchr.org/EN/ProfessionalInterest/Pages/CAT.aspx

[4] https://www.nytimes.com/2017/01/31/us/politics/-dana-boente-attorney-general-acting.html

[5] https://twitter.com/realDonaldTrump?ref_src=twsrc%5Egoogle%7Ctwcamp%5Eserp%7Ctwgr%5Eauthor

[6] https://www.theguardian.com/us-news/2017/jan/30/travel-ban-donald-trump-protest-chuck-schumer

[7] https://www.washingtonpost.com/r/2010-2019/WashingtonPost/2017/01/30/Editorial-Opinion/Graphics/Draft_Dissent_on_EOSec3.pdf?tid=a_inl

[8] https://www.washingtonpost.com/r/2010-2019/WashingtonPost/2017/01/30/Editorial-Opinion/Graphics/Draft_Dissent_on_EOSec3.pdf?tid=a_inl

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