Every one of the 10 airports targeted by the new “laptop ban,” issued last week by the Department of Homeland Security, is located in a Muslim-majority country. Unsurprisingly, advocates from the ACLU and Amnesty International have expressed concerns that this may be just the latest Trump administration policy motivated by Islamophobia. But there are several reasons why this policy may be upheld, even if the travel ban is not.
Courts that have struck down the travel ban so far have focused on two key elements: (1) evidence directly linking Islamophobic statements made by the president and his staff to the executive order as written and (2) a “dearth of evidence indicating a national security purpose.” Both of these elements are harder to establish with regard to the laptop ban.
First and foremost, with the travel ban, you can point to President Donald Trump’s explicit call to ban Muslims, which he made on the campaign trail and which remains on his website. Then, there is his statement from July that he would “expand” his ban by making it based on territory. More recently, in January, former New York mayor and early Trump supporter, Rudy Giuliani said that the executive order resulted from his efforts to create a legally defensible Muslim ban. Finally, there are the comments from Stephen Miller, a senior advisor to Trump, where he said that the latest travel ban was specifically crafted to address the courts’ rulings against the first ban. With the laptop ban, there isn’t the same rhetorical track record, and so no such links have been established.
Furthermore, in this case, there is reason to believe these restrictions were prompted by specific threat information, which would be evidence of a legitimate national security purpose.
The Trump administration’s order, which took effect over the weekend, covers 10 airports in the Middle East and North Africa. It affects nine airlines that fly directly to the US, ordering them to ban passengers from bringing laptops and other large electronic devices into the passenger cabin for U.S.-bound flights. Now, those devices must be checked and carried in the cargo hold, while passengers can still bring smartphones on board.
While there are conflicting reports from U.S. officials about whether the restrictions were responses to specific threats, there are several credible sources outside the administration that have suggested that this may be the case.
As Ranking Member on the Intelligence Committee, I am continually briefed on the changing threat climate and the most recent intelligence on how our enemies may attack us, and our friends and allies. Over the weekend, I received an additional briefing by the Department of Homeland Security, and I fully support the new security precautions.
Lisa Monaco, President Obama’s Assistant to the President for Homeland Security and Counterterrorism, told Just Security’s Ryan Goodman that the restrictions may indeed be a legitimate response to a pressing national security threat.
I would be wary of linking this measure to the rhetoric about the travel ban. In my experience these moves would be based on specific threat reporting, informed by intelligence community analysis and careful consideration by the State Department, DHS officials and other professionals about purpose and implications, and there would be consultation with partners and outreach by TSA and DHS officials to airlines and others. That all may have occurred here.
Kip Hawley, who ran the TSA between 2005 and 2009, seemingly concurred stating, “It just feels like there was an intel briefing that they had.”
Finally, as Vox’s Dara Lind notes, “The fact that the UK is following the US’s lead in banning some devices on some flights buttresses the idea that there’s a specific threat in play.”
Combined with the absence of any direct links to Islamophobic statements on the subject, this evidence of a legitimate national security rationale makes any constitutional case against the laptop ban much harder to make.
There are other reasons why the laptop ban might be constitutional, even if the travel ban is not.
A major reason is that, unlike the travel ban, the laptop ban is connected to conduct (e.g. presence in a country of concern), as opposed to nationality. Rebecca Hamilton explained this crucial distinction as a key difference between rational and discriminatory national security policies.
The theory behind identifying “countries of concern” or “physical safe havens” is that individuals who have recently traveled to and spent time in these areas are thought to be at greater risk of future terrorist activity. It is an individual’s presence in one of these locales that is significant, not the nationality that they happen to have on their passport. Indeed, there is no reason that a British national, for instance, is less likely to be radicalized while in the Trans-Sahara than a Malian national (including a person born in Mali who left many years ago).
This famously leaked draft report from DHS similarly noted that “citizenship is unlikely to be a reliable indicator of potential terrorist activity.” There have been no similar leaks (as of yet) undermining the national security rationale of the laptop ban, providing another reason why it will be harder to convince a judge to strike it down.
On the other hand, every one of the 10 airports targeted by DHS’s new “laptop ban” is located in a Muslim-majority country, and it was implemented under a president who has a long public track record of Islamophobia. With that backdrop, can judges ever rule out the possibility that the laptop ban was at least partly motivated by Islamophobia?
Even if these restrictions were prompted by specific threat information, isn’t it still possible or even probable that their adoption was facilitated by Islamophobia? Can we assume that, if the laptop ban went to the White House for approval, that the policy’s potential deterrence of Muslim travel to the U.S. was viewed as a bonus by Trump or some of his advisors?
This raises one of the most fundamental constitutional questions prompted by the Trump administration so far: Can an administration with such an extensive history of overt Islamophobia legally make any policy that has a disparate impact on Muslims?
The answers to these questions aren’t clear. The Hawaii District Court that struck down the revised ban recognized that, in principle, “it is not the case that the Administration’s past conduct must forever taint any effort by it to address the security concerns of the nation.” But as long as those attempts to address our security concerns inflict a disparate impact on Muslims, we might find that the burden of proof is on Trump to show that he is not purposely discriminating against them — if not in the courts, at least in the realm of public opinion. That burden might be very hard to meet, and rightfully so.