The Disastrous, Terroristic Rollout Of Trump’s Executive Orders Was Probably By Design
But what Trump and Bannon forgot is that justice favors precision.
It’s not often that a ruling by a federal court lends itself to the highlight-quoting so beloved by Twitter these days, but the Ninth Circuit Court minted a few choice phrases as it ruled to uphold the stay against Donald Trump’s travel ban. Among them, one in particular stands out.
In addition to being especially biting in its criticism of the administration’s handling of this case, the Ninth Circuit identified one of the core strategies Trump and his cadre have used to spread hate: ambiguity.
“Moreover, in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings.”
In short, the government has no set interpretation of the order, and it appears to change to suit whatever fraction of the news cycle we’re in. First it categorically banned green card holders, then it didn’t, for instance. More than that, however, whatever threadbare limits existed in the order’s text were routinely exceeded by U.S. Customs and Border Patrol, with nary a peep from the White House.
Numerous cases emerged where foreign nationals who were not from the seven countries listed in the order were nevertheless barred from entry because of it. It was also confirmed that Mexican nationals were detained under its aegis. The former prime minister of Norway was detained because he’d made an official visit to Iran while in office. A Canadian citizen was refused entry because CBP said that videos of Islamic prayer she’d viewed on social media were “against us.” Her family’s ancestry could be traced back to Morocco — again, not one of the seven countries listed in the ban. Ibtihaj Muhammad, an Olympic fencer who won bronze for the U.S. in Rio, was detained at the border; she is an American citizen who was born in the U.S. Meanwhile, confusion reigned in Canada and the UK as their governments scrambled to offer advice to their permanent residents and dual citizens who might have been affected by the ban.
The Ninth Circuit identified one of the core strategies Trump and his cadre have used to spread hate: ambiguity.
There is reason to believe that this was intentional.
The order, which was largely crafted by Chief Advisor Steve Bannon, was certainly written with incompetence. Bannon is no one’s Constitutional scholar. But, without imputing too much strategy to this omnishambles of an administration, there may be a hint of method to the order’s vagueness. Considering Bannon’s stated desire to cause chaos, as well as his staggering racism that views even legal immigration as a problem, it’s within reason to view this explosively disastrous and terroristic roll-out of Trump’s order as being at least partially by design.
One of Bannon’s more infamous quotes makes the case: “Lenin wanted to destroy the state, and that’s my goal too. I want to bring everything crashing down, and destroy all of today’s establishment.”
I do not believe Bannon anticipated the strong blowback to the order, the protests, or how firmly American courts would rebuke it, but, given his views, the terrorizing of all brown people at American border crossings was at least partially his intention. The order’s ambiguity was deliberate, and it’s of a piece with troll-culture’s love of destabilized meanings and fascistic chameleonism.
The Order’s ambiguity is of a piece with troll-culture’s love of destabilized meanings and fascistic chameleonism.
For those who wished to defend Trump, they could point to the order’s supposed narrowness as proof that it was not a “Muslim Ban.” The number of right-wing Twitter users who discovered Indonesia was the world’s most populous Muslim country exploded overnight, it seemed. “Why,” they asked, “would Trump not ban travel from Indonesia if he was crafting a Muslim Ban?” Meanwhile, at the airports themselves, CBP officers felt they had at last been unleashed and given wide latitude to let their implicit biases guide their work, paying scant attention to the geographic limits of the order.
As is often the case with early fascist edicts, the order was drafted in a way that allowed different groups of people to see what they wanted to see. It allowed people to lie to themselves about the true scope of terror, and it also allowed sympathetic state agents to do as they pleased without limitation. The silent consent radiating from the White House indicated that it felt CBP was executing its order faithfully.
Even after courts imposed a stay on the ban, prohibiting its enforcement, the effects of CBP being unleashed were made clear. New Yorker writer Alexandra Schwartz reported hearing CBP agents loudly anticipating the return of the ban, while one repeatedly berated a green card holder by demanding of her, “Why should my tax dollars pay for your medical bills?”
Customs agents looked at this vague order and found a licence for prejudice.
Troll culture also depends on these kinds of illusions when performing for an audience, leaving us guessing. Are we looking at a joke or a genuine threat? Is this a satire of racism or actual racism? A familiar pattern of reactions emerges here. Outside observers will see what they need to see to comfort themselves, malefactors will hear marching orders, and victims will be targeted no matter what while the confusion masks their suffering.
But what works in the lawless, libertarian nightmare of social media may not be quite so effective when reviewed by federal judges, who explicitly disdain this lack of precision and specificity — as Thursday’s Ninth Circuit ruling makes abundantly clear. It was issued unanimously, including the support of the most conservative member of the three-judge panel, Richard Clifton, a George W. Bush appointee. Unstable meanings work well online, which abhors centralized authority and lacks organized or universal governing structures, but they are far less effective in a courtroom.
What works in the lawless, libertarian nightmare of social media may not be quite so effective when reviewed by federal judges.
This explains the administration’s slipshod legal strategy. They argued that they need not present evidence in defence of the order, only claim that the order was beyond judicial review. This was specifically called out and shot down in the Ninth Circuit’s ruling with a simple “we disagree.” It’s a dismal strategy on Bannon’s part, but necessary. The only hope for such orders is that they are rendered immune to meaningful scrutiny, allowing the administration to hide behind the unstable meanings of their edicts and avoid responsibility while extreme interpretations rule the day on the ground. When the courts review them, however, this kind of trollish chicanery simply won’t hold up. They have to be pinned down and commit to an affirmative position.
For activists, this also means that as a matter of strategy we must continue to focus on actions and not words. The vast protests against the Muslim Ban were effective because they did not hesitate to call it that; they instantly cut through the sophistry of the order to the heart of its effects. It was targeting Muslims, regardless of citizenship status or country of origin, and it was being used to terrorize immigrants and refugees while the White House stood idly by. We must never allow ourselves to get caught in the trollish word games that Bannon is so fond of, and that matters more than ever both in the continued fight against the Ban, and against future executive orders.
We must continue to focus on actions and not words.
This understanding should set the stage for what’s sure to be the next set of legal battles for this administration: Trump’s triptych of law enforcement executive orders issued on Thursday. Equally vague, they admit a wide variety of interpretations. The first calls for a year-long study on making police “safer,” while the other two make vague calls for directing federal and state resources toward officer safety, as well as asking the Department of Justice to “develop a strategy for the Department’s use of existing Federal laws to prosecute individuals who commit or attempt to commit crimes of violence against Federal, State, tribal and local law enforcement officers.”
Under a hard right administration, handed off to law enforcement agencies that are already institutionally conservative, violent, and implicitly racist, we can presume that these orders will be interpreted very broadly. In fact, this is already the case; this week saw widespread ICE raids carried out in a number of states, with the rounding up of hundreds of undocumented people—many of whom had no violent, or even nonviolent, criminal histories at all.
We saw what effect the Muslim Ban order had on the CBP, inciting them and summoning forth their biases, giving them permission to collectively put them into practice more than ever. As important as the rulings of successive judges have been, that genie will not go back into its bottle, as Schwartz’s JFK account makes abundantly clear.
It seems reasonable to assume that these new orders are meant to make police officers and immigration authorities nationwide feel more secure in their bigotries than ever — and the fully intended side effects of the orders’ vagueness are still yet to come.