Travel ban 3.0 and a permanent state of emergency
Si Hao Guo takes a look at liberty, freedom, security, and contemporary counter-terrorism policies
Twitter is an interesting place for all sorts of things. Memes, marshmallows, and real-time access to the 45th President of the United States’ mind.
In the wake of a terrorist attack on the London Underground in September, we were given the latest insight into President Trump’s mindset towards counter-terrorism policy. President Trump used Twitter to reiterate the merits of his travel ban, stating attackers ‘were in the sights of Scotland Yard’, even though facts and circumstances of the attack were STILL in flux. These habits were once again on display in the recent New York truck attack as President Trump wasted no time to lambaste Democratic Party politicians for their support of past immigration policies and called for the stepping up of his extreme vetting programs.
President Trump has never made any secret of his penchant for conducting and promoting counter-terrorism policy by tweet. As Europe and the world struggle with terrorism, support for policies like Trump’s travel ban has grown. While these policies enjoy some level of public support, one question must be asked: are these policies actually worth it? This discussion will examine all three iterations of the Trump Administration’s so-called ‘travel ban’, and other international examples of restricting freedom and liberty in the name of counter-terrorism and security.
First, we must go back to December 2015. In the aftermath of the San Bernardino attacks which saw 14 people killed, Republican Presidential candidate Trump responded by calling for a total shutdown of all Muslims entering into the United States. President Trump’s speech prompted unprecedented bipartisan criticism from figures ranging from Dick Cheney and Bernie Sanders to Indiana Governor Mike Pence and retired General James Mattis. This half-baked policy seemed to be yet another brain fart from a novelty candidate who was quickly becoming a joke.
On 27 January 2017, the newly sworn-in President Trump was joined by Vice-President Mike Pence and Secretary of Defense James Mattis in signing Executive Order 13769; the ‘not a-ban’ travel ban. The order suspended entry for individuals from seven Muslim-majority countries, namely: Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. These were countries that had been previously identified by the Obama Administration as countries of concern regarding terrorism. It also included a provision which suspended the US refugee admission program and prioritised the admission of refugees from certain religions.
The roll-out of the executive order can only be described as farcical. It was accused of alienating key Muslim allies in the war against ISIS, while key departments such as the State Department and the Departments of Defense and Homeland Security were said to have been kept out of the loop in the order’s development. People with valid visas or green cards were turned back or detained while others were stranded in transit. Major American airports were soon choked by protests that were supported by prominent Democratic Party politicians and advocacy groups.
As a man who has been involved in hundreds of litigation cases, Donald Trump should be familiar with the inside of a courtroom. This time, however, he was being sued in his capacity as President. Aziz v Trump 231 F.Supp.3d 23 (2017) was filed in the United States District Court for the Eastern District of Virginia against President Trump, Secretary of Homeland Security John F. Kelly, and other Customs and Border Protection (CBP) officials. The applicants sought a writ of habeas corpus on behalf of petitioners who had been detained at Washington Dulles International Airport. It was alleged that CBP officers had pressured the plaintiffs into signing away their US immigration status through false representations about being barred from re-entering the US. Judge Leonie Brinkema issued a temporary restraining order to prevent enforcement of the executive order and stated that no evidence had been provided to justify the order’s national security concerns.
The most high-profile challenge against this order was Washington v Trump, launched by Washington State Attorney-General Bob Ferguson. This case was also supported by officials from Washington universities and colleges, along with prominent Washington-based companies such as Amazon and Expedia. The case argued that the order violated several clauses of the US Constitution, including the First, Fifth and Fourteenth Amendments. Other breaches of the Immigration and Nationality Act, the Religious Freedom Restoration Act, and the United Nations Convention against Torture were also argued.
On 3 February 2017, Judge James Robart, a Republican appointee, granted a temporary restraining order against enforcement of the executive order. An appeal was subsequently brought by the Federal Government before the Ninth Circuit Court of Appeals. The restraining order was upheld by a three-judge panel, which stated that the Federal Government had failed to prove likelihood of the success of the executive orders on their merits at trial. President Trump’s Twitter habits and public statements were considered by the court in establishing discriminatory intent behind the policy, but the court did not make an overall judgement on the effect of these factors.
However, on 16 March 2017, President Trump’s new Executive Order 13780, another ‘not-a-ban’ travel ban, was enacted. Iraq was removed from the list of banned countries while clearer, more concrete exceptions for lawful legal residents of the United States were included.
Further appeals against ‘Travel Ban 2.0’ were brought by the State of Hawaii and the International Refugee Assistance Project, with the US Supreme Court eventually deciding to allow for enforcement of the order against those without bona fide connections to the United States in a per curiam decision. This created a separate debate over what exactly constituted a ‘bona fide relationship’, with grandparents initially not considered as bona fide relationships by Trump administration officials. However, a finding later overturned this ruling to the certain delight of grandchildren everywhere.
On 25 September 2017, as the executive orders were due to expire, the Trump Administration issued yet another ‘not-a-ban’ travel ban: a new set of targeted travel restrictions on the citizens of Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. The US Department of Homeland Security stated that these nations were included because they had been unwilling or unable to provide relevant security information. Chad’s inclusion was met with surprise by national security and Africa policy experts, considering their country’s recent role as a counter-terrorism ally with the US against Boko Haram. Chadian forces had worked closely alongside US forces in Africa and had participated in security operations in Mali and Niger with Chadian officials describing the new restrictions potentially hampering future cooperation in the developing African front against terrorism.
However, on 17 October 2017, US District Judge Derrick K. Watson granted a request from Hawaii for a temporary restraining order against the new order. Needless to say, it prompted a White House outcry with the Supreme Court later allowing for the ban to come into effect on 4 December 2017 setting the scene for further legal drama. Yet, in considering this new ‘Travel Ban 3.0’, we must bear in mind that it is not only the United States which is currently strengthening its counter-terrorism policies.
On 7 May 2017, Emmanuel Macron, a man whose only previous political experience had been a two-year stint in President Hollande’s office and ministry, won 66% of the vote in the decisive second round of the French Presidential Election. Macron inherited a country devastated by numerous graphic terrorist attacks ranging from stabbings and shootings to the horrific November 2015 Paris attacks and the Bastille Day truck attack in Nice with 239 people losing their lives over the past two year period. Subsequently, the country has been in an almost permanent state of emergency with heavily armed soldiers now a common feature at tourist attractions and other public areas. Marine Le Pen, Macron’s ultra-nationalist opponent in the final round, had tried to take advantage of the after-effects of these attacks through a campaign where she pledged a hard line against terrorism, Islam, and immigration.
By contrast, Macron had pledged a more open and tolerant France without compromising France’s tough approach to counter-terrorism policy. Macron pledged to make several policies arising from the state of emergency permanent. Recently, the lower house of the French Parliament voted to implement measures to bolster police search, surveillance and detention powers. Despite the extreme nature of these provisions, the anti-terror bill received widespread public support with 57% of surveyed French citizens expressing support for the policies. On the 30 October 2017, President Macron signed the anti-terror bill into law which ended the long running state of emergency. However, various human rights bodies and the United Nations have raised grave concerns about these measures’ dramatic encroachment into civil liberties and the right of due process. UN Special Rapporteur on the Protection of Human Rights in the context of countering terrorism Fionnula Ni Aolain stated that ‘the normalisation of emergency powers has grave consequences for the integrity of human rights protection’. This raises the question: is sécurité more important than liberté, égalité, and fraternité in our day and age? What will be the next steps?
The simplicity and crudeness of recent attacks, carried out largely by lone wolf attackers without a concrete terrorist network, would lead some to argue that these policies are a necessary evil in order to maintain security. But as the world continues to deal with these threats, we must remember that our freedoms and liberties are what distinguish us from terrorist offenders. A firm commitment by all governments to freedom and liberty must always continue to ensure the integrity of the societies which they aim to protect.
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