February 7, 2017 at 3:00 AM
"The seven countries named in the Executive Order are the same countries previously identified by the Obama administration as sources of terror."
— President Trump, statement regarding executive order, Jan. 29, 2017
"He is calling for extreme vetting from seven countries that President Obama first identified. All he did was take his lead. He didn't even add to the list."
— Kellyanne Conway, counselor to the president, interview on MSNBC's "Hardball," Feb. 2, 2017
Many readers have requested an explanation of the Trump administration's frequent claim that it is simply following a path set by former president Barack Obama when Trump signed an executive order that imposed a 90-day travel ban on the citizens of seven Muslim-majority countries. The controversial ban is now on hold because of court challenges, but the "seven countries" issue remains important because the Justice Department, in its filing to the U.S. Court of Appeals, asserted that these are "countries that have a previously identified link to an increased risk of terrorist activity."
So here's what really happened.
The only country actually named in the order is Syria, which was also subject to an undefined ban on refugee admissions. The other six countries — Iraq, Iran, Sudan, Libya, Yemen and Somalia — are not specifically named. Instead, the order refers to sections of the U.S. code:
"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."
This is the first clue that the countries had already been subject to previous restrictions. But, as you will see, Trump used this legal platform and took it to an new level.
The references in the law are to restrictions on the visa waiver program. The visa waiver program allows citizens of 38 (mostly European) countries to travel to the United States without first obtaining a visa.
In 2014, then-Rep. Candice S. Miller (R-Mich.) proposed a law to pressure participants in the program to share intelligence data. But, after the 2015 Paris attacks, her proposal was adjusted to tighten the rules for people from those countries if they had visited Syria or Iraq or were dual citizens of those countries. Specifically, the change would have required an in-person interview for a visa if a person had traveled to Iraq or Syria after March 2011. As Miller noted, "Abdelhamid Abaaoud, the suspected mastermind of the horrific attacks in Paris, was a citizen of Belgium — a participant of the U.S. Visa Waiver Program."
The House passed the bill 407 to 19.
A somewhat similar bill was introduced in the Senate by Dianne Feinstein (D-Calif.) and Jeff Flake (R-Ariz.), although it would not have applied to dual nationals, just people who had traveled to countries that were of concern. But when the final version emerged from Congress — as part of an omnibus budget agreement — the dual-national provision remained. The law was titled the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015.
Feinstein at the time noted her objection to the change: "Restricting the use of the program based on nationality in addition to where an individual has traveled is not the correct path. I was disappointed the provision was included over the strong objection of many members, and will work with my colleagues to quickly repeal it."
The law, in effect, also added two countries — Iran and Sudan — because they are listed by the State Department as state sponsors of international terrorism. (Syria is also on the list.) The law also allowed the secretary of homeland security to add other countries of concern.
In 2016, the Obama administration announced that it was adding Libya, Somalia and Yemen to the list of troublesome travel areas but also said that it would not apply the restrictions to dual nationals of those countries.
The administration also assured Democratic lawmakers that it would formalize guidance to allow for case-by-case waivers of dual nationals from the four countries named in the 2015 law, especially in situations where travel was connected to international organizations, journalism or legitimate business reasons. Some Republicans were upset at the Obama interpretation, with one accusing the president of "blatantly breaking the law."
But the Obama administration announcement emphasized that "the addition of these three countries is indicative of the [Homeland Security] Department's continued focus on the threat of foreign fighters."
The website of the U.S. Customs and Border Protection bureau still says the main purpose of the 2015 law was to identify people who may have been radicalized: "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." The CBP also noted: "These new eligibility requirements do not bar travel to the United States."
So while the Obama administration expanded the list of countries, it sought to keep the focus on travel, not nationality. Trump, by contrast, has taken the opposite approach — keeping the focus on a person's nationality.
Charles Kurzman, a sociology professor at the University of North Carolina at Chapel Hill who tracks Muslim American violent extremism, says that since the Sept. 11, 2001, attacks, only 23 percent of Muslim Americans involved in extremist plots had family backgrounds in the seven countries identified by Trump — and that "there have been no fatalities in the United States caused by extremists with family backgrounds in those countries."
Update, Feb. 9: The appeals court ruling upholding the freeze on Trump's executive order noted: "Although the Government points to the fact that Congress and the Executive identified the seven countries named in the Executive Order as countries of concern in 2015 and 2016, the Government has not offered any evidence or even an explanation of how the national security concerns that justified those designations, which triggered visa requirements, can be extrapolated to justify an urgent need for the Executive Order to be immediately reinstated."
The White House did not respond to a request for comment.
The issue is much more complex than suggested by the Trump White House. The original intent of the law was to insist on greater scrutiny of people who had traveled to Syria and Iraq, even if they were citizens of countries that qualified for a visa waiver. In other words, lawmakers were seeking to identify possible radicalization, not single out citizens.
Four countries were identified by Congress, in a bill signed by Obama, and then the Obama administration added three more. But Obama — and Democrats in Congress — wanted to require greater visa scrutiny of people who had traveled to those countries. When given a chance, the Obama administration specifically rejected the citizenship-based restrictions that Trump has now ordered. So while the names are the same, the approach is the polar opposite.
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