In an apparent attempt to moot the multiple court challenges to his Executive Order on immigration, President Donald Trump said Thursday that he’d issue a new immigration order by next week.

A new order will likely attempt to fix some of the most controversial elements of the original one, perhaps by limiting the impact to individuals who are not already lawful permanent residents, or to people who haven’t yet applied for visas. But as Trump senior policy advisor Stephen Miller indicated in a slew of troubling television interviews last weekend, there are parts of the order that the Trump administration is already acting upon. If the new order doesn’t change those, we may still be left in effect with a Muslim ban that will keep out those most endangered by the sort of terrorism and discrimination Trump’s executive order is supposed to be targeting.

Those provisions are found in Section 3 of the president’s order.  This section – most of which was not stayed by District Court Judge James Robart in Washington — creates a process of “review” designed “to determine the information needed from any country to adjudicate any visa, admission, or other benefit” under the Immigration and Nationality Act,  “in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.”  Therefore, if a country is unwilling or unable to systematically provide that information, its citizens would be banned from entering the United States.

On its face, that might sound logical. After all, we want to confirm the identities and background of people entering our country. And just as the United States stores basic information about its own citizens, we assume other countries do the same.

But if you consider some of the countries singled out by the order – Iran, Syria, and Sudan, for example, with which the United States either lacks normal diplomatic relations or has an openly hostile relationship – then it makes no sense at all. 

The order appears to envision the U.S. government seeking and relying on information from some of the most repressive and dysfunctional regimes in the world, about the citizens who are fleeing them, often because of that repression and dysfunction. Would the United States rely on the Iranian regime, for example, to vet the requests of Iranian political dissidents and fleeing religious minorities, and to provide the U.S. government reliable information about those dissidents or minorities so the US can grant them a visa? Would the United States rely on information from the regime of Bashar al-Assad in Syria — with which the US was not long ago on the brink of war — to vet leaders of opposition groups we’ve supported, or their family members?

It’s a bizarre plan that would place the fate of the persecuted in the hands of their persecutors, and would rely on information provided by our proclaimed enemies to determine who we will allow in the United States. What’s more, if the United States were actually planning to provide these states with the names of individuals seeking to come to the United States, it would immediately endanger not only the individuals seeking to leave, but also their family members, who intend (or are forced) to stay behind.

Of course, the U.S. government should gather reliable information about refugees. And through a rigorous and often grueling vetting process, it already does. As a bipartisan group of twenty national security leaders, including Henry Kissinger, retired Gen. David Petraeus, Michael Chertoff, Madeleine Albright and Leon Panetta, said in a letter to members of Congress,

“the process that refugees undergo in order to be deemed eligible for resettlement in the United States is robust and thorough. They are vetted more intensively than any other category of traveler, and this vetting is conducted while they are still overseas. Those seeking resettlement are screened by national and international intelligence agencies; their fingerprints and other biometric data are checked against terrorist and criminal databases; and they are interviewed several times over the course of the vetting process, which takes 18-24 months and often longer.”

If there’s another security measure the Trump administration wants to add to this process, that’s fine, so long as it yields meaningful and reliable information. But to insist that every applicant’s home country provide that information, even if it’s a country that the US routinely criticizes for prosecuting, imprisoning and executing people based on false charges and fabricated evidence, is beyond absurd. Since some of these countries are clearly not U.S. allies, and would likely either refuse or be unable to provide the requested information, the scheme could in effect – and perhaps by design – lead to a default ban on refugees from Muslim-majority countries.We would be turning our backs on precisely those refugees who need us the most.

Such a ban would also exacerbate the national security concerns that the Executive Order has already raised, by targeting the most desperate people in Muslim-majority nations, who then become poster children for al-Qaeda or ISIS recruiting efforts. As former former CIA Director and U.S. Defense Secretary Leon Panetta said of the order: “We’ve fed ISIS a major argument that I think will help them in recruiting and that increases the chances of a potential attack in this country.”

Within the US, the effect would be to deny established immigrant and refugee communities already here the ability of ever seeing their relatives again, and to sow distrust of U.S. authorities among immigrant communities from those countries whose cooperation we most need.

In addition to being dangerous and impractical, these vetting requirements would effectively act as a Muslim ban, and therefore are likely unconstitutional. As District Court Judge Leonie Brinkema wrote in her recent opinion granting a preliminary injunction on implementation of the executive order in Virginia, there is a wealth of “unrebutted evidence” that the order “was not motivated by rational national security concerns” but by “religious prejudice” toward Muslims. The patent irrationality of the scheme envisioned in section 3 of the order only underscores that discriminatory intent.

Last weekend, Miller proclaimed: “The president’s powers here are beyond question.” But as the courts have made clear, a Muslim ban in disguise won’t pass muster, and, perhaps to Miller’s surprise, even the president must adhere to the Constitution.

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