One does not need to look further than the Iranian hostage crisis of 1979 or 9/11 2001 to see that America has, in fact, a long history of immigration restrictions. Trump’s Executive Order on “Protecting the nation from foreign terrorist entry into the United States” is not a sui generis phenomenon, but it takes these kinds of orders on a new scale.
The Executive Order on “Protecting the nation from foreign terrorist entry into the United States”, designated primarily as a counterterrorism measure, has spilled into one of the nation’s most polarizing topics: immigration policy.
The Executive Order signed on Friday, January 27, 2017, by President Donald J. Trump concerns nationals of the seven designated countries seen as crucial for exporting terrorism: Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen.
In the nation of immigrants, the inflammatory debate did not come as a surprise, neither did the airport protests, but what was surprising is that Trump’s Executive Order has been seen by many as a novel measure concerning the U.S. national security.
One does not need to look further than the Iranian hostage crisis of 1979 or 9/11 2001 to see that America has in fact a long history of immigration restrictions implemeted as the protection measures for national security in connection to the countries in Middle East.
Trump’s Executive Order on “Protecting the nation from foreign terrorist entry into the United States”, states that, “numerous foreign-born individuals have been convicted or implicated in terrorism-related crimes since September 11, 2001, including foreign nationals who entered the United States after receiving visitor, student, or employment visas, or who entered through the United States refugee resettlement program.”
In fact, the Executive Order President Trump signed builds up on previous counter-terrorism related measures since September 11, 2001, and in no way can be seen as a novel phenomenon when it comes to the U.S. national security provisions although it takes these kinds of orders on a new scale.
In fact, these counter-terrorism orders know as NSEERS brought to life under George W. Bush were well alive under the presidency of Barack Obama, but they were not thunderley “advertised” in public.
History considered however, Trump’s Executive Order is not a sui generis phenomenon. It, in fact, inaugurates the third wave of immigration restrictions under the banner of national security.
In order to put things in perspective, let’s look at all national security measures implemented through immigration restrictions in America since 1979 which have the vetting as a common theme but have varying degrees of intensity.
1. Immigration restrictions in 1979 under the Democratic President Jimmy Carter
Despite popular belief, democrats are no strangers to immigration restrictions under the banner of national security. The visa restrictions against Iranian students were issued by a Democratic President, Jimmy Carter, in response to the crisis in national security.
Here are some facts:
- On November 10, 1979, President Carter instructed the Attorney General to review the status of Iranians in the United States on student visas and to initiate deportation proceedings against those not in compliance with the statutory requirements.
- In an unrelated event in the summer of 1980, the Regents of New Mexico State University attempted to ban all Iranian students from enrolling at the university.
- By December 31, 1979, the INS had identified 6,906 deportable Iranian nationals in the United States.
These orders were directly against Iranian students by the then Democratic President Jimmy Carter and Trump’s Executive Order in 2017 can not be in any way considered to be novel national security measure, but a resurrection on a new scale of what started in 1979 and then re-surfaced in the wake of 9/11.
While the Trump administration has proclaimed immigration restriction measures to Islamic terrorism that hit America hard on 9/11 and which remained a threat to the national security of the new millennium, Carter’s steps were taken in response to the hostage crisis which was the threat to national security of that time.
The difference between Carter and Trump is that Carter has ordered scrutiny but there were still Iranian students coming in. For that reason, being considered as the first modern wave of immigration restrictions, Carter’s orders can be considered the one of the lowest intensity in the history of immigration restrictions measures.
2.NSEERS: Immigration restrictions after 9/11 under George W. Bush and Barack Obama
After 9/11 when there were a lot of immigration restrictions through the program called National Security Entry-Exit Registration System (NSEERS), that started in 2002 and was well alive into the Obama’s presidency. It was designed as a national security measure to increase screening of travelers from specific countries, 25 to be precise.
In June 2002, after the September 11, 2001 terrorist attacks, INS proposed to expand the existing registration and fingerprinting program to require certain nonimmigrants to report to INS upon arrival, approximately 30 days after arrival, every 12 months after arrival, upon certain events such as a change of address, and at the time of departure from the United States.
At that time non-immigrants from Iraq and Sudan were required by the Attorney General to be registered and fingerprinted under the new provision and later added Iran and Libya.
In September 2002, INS announced by Federal Register notice that the new program would be applied to those who were subject to the earlier registration program—nonimmigrants from Iraq, Iran, Libya, and Sudan—and added nonimmigrants from Syria.
INS announced in November 2002 that only males 16 years of age and older from designated countries would be required to register under the program. Between November 2002 and January 2003, INS added another 20 countries to the compliance list, bringing the total to 25 countries.
The 25 countries ultimately included in the compliance list were: Afghanistan, Algeria, Bahrain, Bangladesh, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Morocco, North Korea, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, United Arab Emirates, and Yemen. All countries with predominantly Muslim population.
According to testimony by the Department of Homeland Security to Congress, by January 2003, at least 138,000 individuals were registered in NSEERS, so it cannot be in any way said that these were not targeting Muslims, the way it is now considered to be the case with the Trump’s Executive Order.
At that time, because a majority of these countries were predominantly Muslim cultures, the American Civil Liberties Union said the program unjustly targeted individuals based on religion.
NSEERS which started under Bush administration prolonged under Obama until April 27, 2011, when only portions of it were suspended and the United States Visitor and Immigrant Status Indicator Technology known as US-VISIT program was instituted as its replacement.
However, since the Secretary of Homeland Security’s authority under the NSEERS regulations was broader than the manual information flow based on country designation, the underlying NSEERS regulation remained in place in the event a special registration program was again needed.
The American public would be surprised to learn that the entirety of the regulation was not deleted until December 22, 2016. On that day, Barack Obama was still the President of the United States and he, in fact, has suspended NSEERS just one month before the Inauguration of Donald J. Trump.
The specified reason for removal was that “DHS ceased use of the National Security Entry-Exit Registration System (NSEERS) program in 2011 after finding that the program was redundant, captured data manually that was already captured through automated systems, and no longer provided an increase in security in light of DHS’s evolving assessment of the threat posed to the United States by international terrorism. The regulatory structure pertaining to NSEERS no longer provides a discernible public benefit as the program has been rendered obsolete. Accordingly, DHS is removing the special registration program regulations.”
Nearly 200 civil and human rights, civil liberties, education, social justice, and interfaith organizations wrote to Barack Obama to urge his Administration to take immediate action to rescind the regulatory framework behind the National Security Exit-Entry Registration System (NSEERS).
The NSEERS program has been found to be ineffective as a counter-terrorism tool, has resulted in tremendous harm for individuals who were directly affected, and has disrupted relationships with immigrant communities.
Their letter further stated:
“In the wake of NSEERS, more than 13,000 men who complied with the program faced deportation charges. Families have torn apart, small businesses in immigrant neighborhoods closed their doors, and students discarded their educational aspirations. One person affected by NSEERS was Mr. D, a 19-year-old athlete from Algeria who came to the United States on a student visa to play tennis at Western Michigan University. As a foreign student, Mr. D was subject to NSEERS as a condition for study in the United States. Due to a car accident, Mr. D complied with NSEERS one day past the deadline. Although medical documents were available to show the circumstances of the one-day delay, the local immigration office charged Mr. D with failure to comply with NSEERS and placed him in removal proceedings. Mr. D’s story is just one of tens of thousands of people affected by NSEERS.”
New York City Mayor Bill de Blasio said in his statement that NSEERS program “was a failed counterterrorism tool, was highly discriminatory, and led to widespread fear and needless dislocation of families across the United States.”
3. Trump’s Executive Order: What were we going to get for all of this?
Trump’s Executive order of January 27, 2017, constitutes the third and the most intense wave of immigration restrictions namely as it introduces the blanket ban preventing both immigrants and non-immigrants from the designated seven countries to enter the United States of America.
- there is a history of this kind of action in America
- federal law allows it:
- INA § 212(f), 8 U.S.C. § 1182(f), gives the President broad powers to designate certain groups of individuals for additional scrutiny.
- For a list of presidential proclamations invoking INA § 212(f), see Bureau of Consular Affairs, U.S. Dep’t of State, Presidential Proclamations
- Similarly, INA § 264, 8 U.S.C. § 1304, gives the government broad power to mandate registration of certain groups of people.
While the prima facie aim of Trump’s Executive Order is to safeguard national security against terrorism, there are several problems that need to be looked at and further clarified in the weeks to come.
One of the biggest problems of the Executive Order on “ Protecting the nation from foreign terrorist entry into the United States” is that it refers to “entry” of “nonimmigrants and immigrants” “from” one of the seven countries.
“Immigrants” legally mean “green card” holders and that is the biggest problem of Trump’s Executive Order, the one his team of advisers did not think this through in much detail.
Executive Order did not specify “green card” holders ( i.e. immigrants) as an exception to the travel restrictions as it has done in the case of “ foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas”.
As a result, many green card holders have been detained at the airports namely because the Executive order on “ Protecting the nation from foreign terrorist entry into the United States” has opened a free legal interpretation for the green card holders and what probably concerns the most, F1 student visa holders from the designated seven countries who did not commit any crime but worked hard towards achieving their own American dream.
American Universities thrive from an intellectual capital of international students and scholars who bring their innovative ideas to campuses across fifty-five states.That part, the authors of the Executive Order were supposed to think through more thoroughly instead of having President Trump rush to sign it on the last working day of his first week in the office.
If the Executive Order was signed in the week two or three of his presidency, while allowing enough time to communicate its purpose as a counterterrorism measure aimed at protecting the American nation, we would not have this legal confusion and havoc of protesters.
This third wave of immigration restrictions under the banner of counterterrorism measures invokes the central question to our global politics today: How can we strike a balance between national security and civil liberties? How can we be assured that the immigration restrictions will not infringe on civil liberties and won’t discriminate on the basis of nationality, religion, and race, all threefold possible discriminatory areas in connection with the restricted travel between the U.S. and the seven countries in the Middle East?
President Trump insists that Friday’s immigration executive order “is not a Muslim ban”. He has also sent the statement on Sunday, January 29, 2017, in an attempt to further clarify his position stating:
“To be clear, this is not a Muslim ban, as the media is falsely reporting. This is not about religion – this is about terror and keeping our country safe. There are over 40 different countries worldwide that are majority Muslim that are not affected by this order. We will again be issuing visas to all countries once we are sure we have reviewed and implemented the most secure policies over the next 90 days. I have a tremendous feeling for the people involved in this horrific humanitarian crisis in Syria. My first priority will always be to protect and serve our country, but as President, I will find ways to help all those who are suffering.”
If there is a lesson to be drawn from the week one in his office, President Trump should think through in more details before proclaiming something to be an Executive Order.
Without having a background in politics and national security, this blunder is on those who wrote the Executive Order and did not consider all the details and possibility of infringement on civil liberties, namely concerning green card holders and legal immigrants.
Without safeguarding against the violations of civil liberties, this Executive Order is opening up space for a blanket ban that in some ways resemble The Chinese Exclusion Act, the first major law restricting Chinese immigration to the United States. While Chinese Exclusion Act was primarily targeting Chinese labor and was in no way a measure of national security, thus not really comparable to the three immigration restriction waves concerning national security, it can serve as a reminder of the not so proud periods of the American history in discriminatory immigration policies.
President Trump needs to understand that with one week in his Office, he does not need anymore to race though his campaign promises. Sometimes, with issues as complex and as sensitive as this one, a political leader needs to take into account all liabilities and rather make this a priority instead of arriving first in the race.
President Trump does not need to race anymore as the campaign is over and he is only competing against his own performance.
Questions of national security tap into a wide range of policies, immigration being one of them. Every restriction of the freedom of movement invokes the question of civil liberties and those should not be open to free interpretation.
While there is a history of immigration restrictions in the context of the U.S. national security, President Trump needs to consider the sequence he is putting in motion on a new scale and factor in the downside of ordering an immigration blanket ban.
President Trump and his administration should dedicate week two on making sure that civil liberties and rights of the legal immigrants are safeguarded and that the high-quality individuals who are contributing to American society do not become the collateral damage of the hard counter-terrorism measures he has decided to implement.
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