Legal Insurrection reports on what a federal judge put a stop to Saturday anyway, because if you’re going to criticize Donald Trump (and remember, I didn’t vote for him), base your criticism on facts instead of feelings:

[Friday] Donald Trump signed an Executive Order on refugees and visa entry procedures.

You should read the actual EO, because most of the media and leftist pundits either have not or are lying if they have.

There are some stark policy differences about immigration and refugees over which people can disagree — those were argued at length during the election season. But the hyperbole and frenzy being exhibited in the media and by leftist pundits is hyperbole at best, fakery and lying at worst. …

I’ll go over key features of the EO and address the main accusations being peddled.

“Muslim Ban”

There is no Muslim Ban, even though the Twitter hashtag #MuslimBan is being used by opponents of the EO. …

There is a postponement of entry from 7 countries (Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen) previously identified by the Obama administration as posing extraordinary risks. That they are 7 majority Muslim countries does not mean there is a Muslim ban, as most of the countries with the largest Muslim populations are not on the list (e.g., Egypt, Indonesia, Malaysia, India, Pakistan, Bangladesh, Turkey, Nigeria and more).

Thus, the overwhelming majority of the Muslim world is not affected.

Moreover, the “ban” is only for four months while procedures are reviewed, with the exception of Syria for which there is no time limit.

There is a logic to the 7 countries. Six are failed states known to have large ISIS activity, and one, Iran, is a sworn enemy of the U.S. and worldwide sponsor of terrorism.

And, the 7 countries on the list were not even so-designated by Trump. Rather, they were selected last year by the Obama administration as posing special risks for visa entry, as even CNN concedes in passing:

The order bars all people hailing from Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen. Those countries were named in a 2016 law concerning immigration visas as “countries of concern.”

The executive order also bans entry of those fleeing from war-torn Syria indefinitely.

Seth Frantzman has an excellent analysis of this Obama administration background to the list. Please read the whole thing. The short version is that the Obama administration selected those countries — whose names are not mentioned in Trump’s EO. …

Franztman provides this image of visa waiver categories, US Customs and Border Protection,* based on the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015:

DHS remains concerned about the risks posed by the situation in Syria and Iraq, where instability has attracted thousands of foreign fighters, including many from VWP countries. Such individuals could travel to the United States for operational purposes on their own or at the behest of violent extremist groups.

The U.S. Congress shares this concern, and on December 18, 2015, the President signed into law the Consolidated Appropriations Act 2016, which includes the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (the Act). The Act, among other things, establishes new eligibility requirements for travel under the VWP. These new eligibility requirements do not bar travel to the United States. Instead, a traveler who does not meet the requirements must obtain a visa for travel to the United States, which generally includes an in-person interview at a U.S. Embassy or Consulate.

 

Sarah Harvard at Mic also recounts the history:

So, in a nutshell, Obama restricted visa waivers for those seven Muslim-majority countries — Iran, Iraq, Syria, Sudan, Somalia, Libya and Yemen — and now, Trump is looking to bar immigration and visitors from the same list of countries.

Frantzman notes that no one complained when the Obama administration selected these countries:

What? So there was a Terrorist Travel Prevention Act of 2015 two years before Trump? There was a kind of “Muslim ban” before the Muslim ban? But almost no one critiqued it in 2015 because it was Obama’s administration overseeing it.

So for more than a year it has been US policy to discriminate against, target and even begin to ban people from the seven countries that Trump is accused of banning immigrants and visitors from. CNN even hinted at this by noting “those countries were named in a 2016 law concerning immigration visas as ‘countries of concern.’” But why didn’t CNN note that the seven countries were not named and that in fact they are only on the list because of Obama’s policy? …

Because mainstream media has been purposely lying, either due to ignorance or because of unwillingness to read the document and ask questions and because they are too ready to accept “facts” without investigating. They want to blame Trump for a “Muslim ban” because they were ready with that script since last year.

Trump Business Connections

An offshoot of the “Muslim ban” claim is the claim that Trump deliberately excluded countries in which he does business.

This argument is made in order to claim Muslims are targeted even though most of the Muslim world is not affected. …

The problem, of course, is that Trump worked off of the Obama administration’s list of particularly risky countries for visa entry. To lay the blame on Trump’s business interests is a lie, or as Frantzman puts it, fake news. …

It’s an Absolute Ban

The “ban” is not without exceptions. There are categories of visa holders who still may enter even from those 7 countries:

Sec. 3(c) To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening of foreign nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists or criminals, pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those 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).

Also, the EO allows exceptions on a case by case basis from those 7 countries:

Sec.3(g) Notwithstanding a suspension pursuant to subsection (c) of this section or pursuant to a Presidential proclamation described in subsection (e) of this section, the 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.

This Ends Refugees Coming to the U.S.

There is a halt to refugee processing, but it is temporary, for 120 days. Moreover, for people already going through the process, this is merely a delay not an ending, because they can resume processing once the system restarts in 120 days:

Sec. 5. Realignment of the U.S. Refugee Admissions Program for Fiscal Year 2017. (a) The Secretary of State shall suspend the U.S. Refugee Admissions Program (USRAP) for 120 days. During the 120-day period, the Secretary of State, in conjunction with the Secretary of Homeland Security and in consultation with the Director of National Intelligence, shall review the USRAP application and adjudication process to determine what additional procedures should be taken to ensure that those approved for refugee admission do not pose a threat to the security and welfare of the United States, and shall implement such additional procedures. Refugee applicants who are already in the USRAP process may be admitted upon the initiation and completion of these revised procedures. Upon the date that is 120 days after the date of this order, the Secretary of State shall resume USRAP admissions only for nationals of countries for which the Secretary of State, the Secretary of Homeland Security, and the Director of National Intelligence have jointly determined that such additional procedures are adequate to ensure the security and welfare of the United States.

Anti-Muslim Discrimination

There are accusations that one particular provision discriminates. It gives preference to those fleeing religious persecution in countries in which they are a religious minority:

Sec. 5(b) Upon the resumption of USRAP admissions, the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality. Where necessary and appropriate, the Secretaries of State and Homeland Security shall recommend legislation to the President that would assist with such prioritization.

This is being referred to as a de facto discrimination against Muslims because it mostly applies to Christians.

Well, that’s because Christians are the most persecuted religion in the Middle East, by Muslims. If there were a country in which Muslims were persecuted by another majority religion, they would get preference.

In fact, this religious persecution test has long been the case in refugee cases, but has been twisted to discriminate against Christians, as this September 2016 column by Eliott Abrams explained:

The headline for this column—The U.S. Bars Christian, Not Muslim, Refugees From Syria—will strike many readers as ridiculous.

But the numbers tell a different story: The United States has accepted 10,801 Syrian refugees, of whom 56 are Christian. Not 56 percent; 56 total, out of 10,801. That is to say, one-half of 1 percent.

The BBC says that 10 percent of all Syrians are Christian, which would mean 2.2 million Christians. It is quite obvious, and President Barack Obama and Secretary John Kerry have acknowledged it, that Middle Eastern Christians are an especially persecuted group.

So how is it that one-half of 1 percent of the Syrian refugees we’ve admitted are Christian, or 56, instead of about 1,000 out of 10,801—or far more, given that they certainly meet the legal definition?

The definition: someone who “is located outside of the United States; is of special humanitarian concern to the United States; demonstrates that they were persecuted or fear persecution due to race, religion, nationality, political opinion, or membership in a particular social group.”

Somewhere between a half million and a million Syrian Christians have fled Syria, and the United States has accepted 56. Why?

“This is de facto discrimination and a gross injustice,” Nina Shea, director of the Hudson Institute’s Center for Religious Freedom, told Fox News. Fox notes another theory: The United States takes refugee referrals from the U.N. refugee camps in Jordan, and there are no Christians there.

Dual Nationals

The EO does apply to dual nationals, but not in the way people imply, suggesting U.S. citizens would be barred from reentry.

Dual nationals who are U.S. citizens are not affected. The EO only applies to dual nationals from the 7 countries who travel on the passport of another (non-U.S.) country. The Wall Street Journal explains:

It also applies to people who originally hail from those countries but are traveling on a passport issued by any other nation, the statement [by the State Department] notes. That means Iraqis seeking to enter the U.S. on a British passport, for instance, will be barred, according to a U.S. official. British citizens don’t normally require a visa to enter the U.S.

“Travelers who have nationality or dual nationality of one of these countries will not be permitted for 90 days to enter the United States or be issued an immigrant or nonimmigrant visa,” the statement said. “Those nationals or dual nationals holding valid immigrant or nonimmigrant visas will not be permitted to enter the United States during this period. Visa interviews will generally not be scheduled for nationals of these countries during this period.”

Green Card Holders

There are reports that holders of Green Cards from those 7 countries may not enter the U.S. This is partially true, but it will be handled on a case-by-case basis, according to CBS News:

Senior administration officials told CBS News Saturday that for permanent American residents — those holding green cards — from the listed countries, their readmittance to the U.S. will be done on a “case by case exemption process.”

[Update: On Sunday morning, White House Chief of Staff Reince Priebus stated that the EO temporary preclusion for the 7 countries “doesn’t include green card holders going forward” but “you’re going to be subjected to further screening.”]

Detentions, ETC.

There are anecdotal reports of people being detained while trying to enter the U.S., or pulled off planes, or not allowed to board. It’s hard to know whether these reports — if true — are the result of policy or confusion. As with any large bureaucratic endeavor, there seems to be administrative confusion, as the NY Times reported in a story recounting some of these reports:

But the weekold administration appeared to be implementing the order chaotically, with agencies and officials around the globe interpreting it in different ways.

Syrian Refugees

It is true that Syrians seeking refugee status are barred entry, and that there is no current time limit on that. Rather, resumption will take place only after security assurance are in place:

Sec. 5(c) Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of nationals of Syria as refugees is detrimental to the interests of the United States and thus suspend any such entry until such time as I have determined that sufficient changes have been made to the USRAP to ensure that admission of Syrian refugees is consistent with the national interest.

This is consistent with what Trump said during the campaign.

Conclusion: Policy Differences Don’t Justify Fake News

It is possible to criticize the EO and Trump visa/refugee policy without hyperbole and fakery. That opponents feel the need to make false and misleading accusations is a signal that they fear losing the policy argument on its merits.

Seth Frantzman adds:

I was outraged by the ban on refugees from war-torn countries in the Middle East. I’ve covered refugees fleeing war in Iraq and Syria over the last two years, meeting families on the road in Greece, Serbia and Macedonia, speaking to poor people in Turkey and Jordan and discussing the hopes and fears of people displaced in Iraq. If you want to ban “terrorists,” these are the last people to hit with a refugee ban. Instead the government should be using the best intelligence possible to find people being radicalized, some of whom have lived in the US their whole lives or who come from countries not affected by the ban, such as Saudi Arabia or Pakistan.

So I was outraged, and then I read the executive order. …

The order does seek “to protect the American people from terrorist attacks by foreign nationals admitted to the United States.” It says that it seeks “Suspension of Issuance of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern.” It also says “I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order.”  And it targets Syrians specifically. “I hereby proclaim that the entry of nationals of Syria as refugees is detrimental to the interests of the United States and thus suspend any such entry until such time as I have determined that sufficient changes have been made to the USRAP to ensure that admission of Syrian refugees is consistent with the national interest.”

But, wait a sec. According to the reports “The order bars all people hailing from Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen.” Critics had attacked Trump for selecting these seven countries and not selecting other states “linked to his sprawling business empire.” Bloomberg and Forbes bought into this.

But, wait a sec. I read the order and Iraq, Iran, Libya, Somalia, Sudan and Yemen are not mentioned in it. 

Go back and read it again. Do a “ctrl-f” to find “Iraq”. Where is “Iraq” in the order. It’s not there. Only Syria is there. So where are the seven nations? Where is the “Muslim ban”? It turns out this was a form of fake news, or alternative facts. Trump didn’t select seven “Muslim-majority” countries. US President Barack Obama’s administration selected these seven Muslim-majority countries. 

The Department of Homeland Security targeted these seven countries over the last years as countries of concern. In February 2016 “The Department of Homeland Security today announced that it is continuing its implementation of the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 with the addition of Libya, Somalia, and Yemen as three countries of concern, limiting Visa Waiver Program travel for certain individuals who have traveled to these countries.” It noted “the three additional countries designated today join Iran, Iraq, Sudan and Syria as countries subject to restrictions for Visa Waiver Program travel for certain individuals.” It was the US policy under Obama to restrict and target people “who have been present in Iraq, Syria, Iran, Sudan, at any time on or after March 1, 2011 (with limited government/military exceptions).” This was text of the US Customs and Border Protection in 2015 relating to “the Visa Waiver Program and Terrorist Travel Protection Act of 2015“. The link even includes the seven nation list in it: “Iraq, Syria, Iran, SUdan, Somalia or Yemen.”  And the media knew this back in May 2016 when some civil rights groups complained about it. “These restrictions have provoked an outcry from the Iranian-American community, as well as Arab-American and civil-liberties groups, who say the restrictions on dual nationals and certain travelers are discriminatory and could be imposed against American dual nationals.”

It was signed into law on December 18, 2015, as part of the Omnibus Appropriations Act of FY2016.

What? So there was a Terrorist Travel Prevention Act of 2015 two years before Trump? There was a kind of “Muslim ban” before the Muslim ban? But almost no one critiqued it in 2015 because it was Obama’s administration overseeing it. …

Because mainstream media has been purposely lying, either due to ignorance or because of unwillingness to read the document and ask questions and because they are too ready to accept “facts” without investigating. They want to blame Trump for a “Muslim ban” because they were ready with that script since last year. And indeed Trump has enacted a harsh executive order cracking down on visitors from these countries (particularly Syrians), but his crackdown only includes those seven countries because of Obama’s policy. Trump’s decision to go beyond the policy and increase the Obama policy harms refugees, but it only increases an existing discriminatory policy, it doesn’t invent it. Reading media reports you would never know that.  Most disingenuous, truly bordering on fake news, are the reports that claimed the seven countries were connected to Trump business interests, as if Obama’s DHS picked them because of Trump?

So why didn’t anyone of the thousands of reporters covering this read the same document and ask the same question and do the same investigation of where the seven “countries of concern” came from? A simply Google search would have revealed the history. A bit of searching around US codewould have explained it.

The public should be suspicious of Trump’s policies and the media should speak truth to power and demand answers from the administration. But the media should also be truthful with the public and instead of claiming Trump singled out seven countries, it should note that the US Congress and Obama’s Department of Homeland Security had singled out these countries. It should have told us about the Terrorist Travel Prevention Act of 2015 rather than pretend this list was invented in 2017. Trump’s executive order said “countries of concern,” it didn’t make a list. That list was already made, last year and years before. 

Rick Esenberg, a lawyer who actually knows something about the Constitution, points out:

As I said, it’s not a Muslim ban. But perhaps the problem with it – the thing that is going to cause problems for Trump – is that it is too authoritarian in its rigidity (although, in fairness, it does provide for exceptions) and failure to consider individual circumstances. This results in unfairness for persons caught in its blunderbuss approach and no matter how much the left may disrespect the “deplorables,” the “deplorables” are good and decent people who don’t like unfairness. One of my problems with Trump during the campaign was his propensity to suggest the use of state authority as opposed to individual freedom; it was his lack of appreciation for civil rights. Sometimes this was just loose thinking and language but it was still concerning. To the extent this is where his instincts lie – it seemed to reflect a lack of commitment to the premises that have made me a conservative in the American sense of that word. The order is not unconstitutional and is probably within his legal authority, but it also may demonstrate that the nationalism and collectivism that Trump too often finds appealing are not as strong as he thinks they are. … It would have been better to exclude those with green cards or who are citizens of some other nation. It may have been better to allow notice to those already in transit. Perhaps it should have excepted more visa holders. Maybe the better approach would have been to take more care to identify what form of vetting is required and when it should be applied.