Trump’s claim that Obama first ‘iden­ti­fied’ the seven coun­tries in new en­try ban

The Washington Post Sunday - - POLITICS & THE NATION - GLENN KESSLER

“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 was sim­ply fol­low­ing a path set by for­mer pres­i­dent Barack Obama when Trump signed an ex­ec­u­tive or­der that im­posed on cit­i­zens of seven Mus­lim-ma­jor­ity coun­tries a 90day en­try ban into the United States.

The 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.” Here’s what re­ally hap­pened.

The Facts

The only coun­try 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, Trump’s 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 a 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, 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.). It would not have ap­plied to dual na­tion­als but solely 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, 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-by­case 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 se­nior law­maker 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 9/11 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.”

In­deed, the ap­peals court rul­ing uphold­ing the freeze on Trump’s ex­ec­u­tive or­der noted that although the Trump ad­min­is­tra­tion’s seven coun­tries had been pre­vi­ously iden­ti­fied as coun­tries of con­cern, “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 Pinoc­chio Test

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 Trump has now or­dered. So although the names are the same, the ap­proach is the po­lar op­po­site.

Trump earns Two Pinoc­chios.

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