Sorry, Mr. President: The Obama Administration Did Nothing Similar to Your Immigration Ban

BY JON FINER-JANUARY 30, 2017

There are so many reasons to detest the Donald Trump administration’s executive order on “Protecting the Nation from Foreign Terrorist Entry into the United States,” that it’s hard to know where to start.
Others have already argued eloquently about its cruelty in singling out the most vulnerable in society; its strategic folly in insulting countries and individuals the United States needs to help it fight terrorism (the ostensible purpose of the order in the first place); its cynical incoherence in using the September 11 attacks as a rationale and then exempting the attackers’ countries of origin; its ham-handed implementation and ever-shifting explanations for how, and to whom, it applies; and, thankfully, its legal vulnerability on a slew of soon-to-be-litigated grounds, including that it may violate the Establishment and Equal Protection clauses of the U.S. Constitution.

In light of all that, and particular in light of the new White House’s acknowledged aversion to facts, it may seem like a minor point that President Donald Trump and his advisors, in seeking to justify and normalize the executive order, have made a series of false or misleading claims about steps taken five years earlier by the Barack Obama administration. In case you missed it, a statement from the president published Sunday afternoon read:

“My policy is similar to what President Obama did in 2011 when he banned visas for refugees from Iraq for six months. The seven countries named in the Executive Order are the same countries previously identified by the Obama administration as sources of terror.”

Leaving aside the unusual nature of team Trump looking to his predecessors’ policies for cover, it seems worth pointing out this statement obscures at least five enormous differences between the executive order the White House issued on Friday and what the Obama administration did.

1. Much narrower focus: The Obama administration conducted a review in 2011 of the vetting procedures applied to citizens of a single country (Iraq) and then only to refugees and applicants for Special Immigrant Visas (SIVs), created by Congress to help Iraqis (and later Afghans) who supported the United States in those conflicts. The Trump executive order, on the other hand, applies to seven countries with total population more than 130 million, and to virtually every category of immigrant other than diplomats, including tourists and business travelers.

2. Not a ban: Contrary to Trump’s Sunday statement and the repeated claims of his defenders, the Obama administration did not “ban visas for refugees from Iraq for six months.” For one thing, refugees don’t travel on visas. More importantly, while the flow of Iraqi refugees slowed significantly during the Obama administration’s review, refugees continued to be admitted to the United States during that time, and there was not a single month in which no Iraqis arrived here. In other words, while there were delays in processing, there was no outright ban.

3. Grounded in specific threat: The Obama administration’s 2011 review came in response to specific threat information, including the arrest in Kentucky of two Iraqi refugees, still the only terrorism-related arrests out of about 130,000 Iraqi refugees and SIV holders admitted to the United States. Thus far, the Trump administration has provided no evidence, nor even asserted, that any specific information or intelligence has led to its draconian order.

4. Orderly, organized process: The Obama administration’s review was conducted over roughly a dozen deputies and principals committee meetings, involving Cabinet and deputy Cabinet-level officials from all of the relevant departments and agencies — including the State, Homeland Security and Justice Departments — and the intelligence community. The Trump executive order was reportedly drafted by White House political officials and then presented to the implementing agencies a fait accompli. This is not just bad policymaking practice, it led directly to the confusion, bordering on chaos, that has attended implementation of the order by agencies that could only start asking questions (such as: “does this apply to green card holders?”) once the train had left the station.

5. Far stronger vetting today: Much has been made of Trump’s call for “extreme vetting” for citizens of certain countries. The entire purpose of the Obama administration’s 2011 review was to enhance the already stringent vetting to which refugees and SIV applicants were subjected. While many of the details are classified, those rigorous procedures, which lead to waiting times of 18-24 months for many Iraqi and Syrian refugees, remain in place today and are continually reviewed by interagency officials. The Trump administration is, therefore, taking on a problem that has already been (and is continually being) addressed.

*Bonus: Obama’s “seven countries” taken out of context: Trump’s claim that the seven countries listed in the executive order came from the Obama administration is conveniently left unexplained. A bit of background: soon after the December 2015 terror attack in San Bernadino, President Obama signed an amendment to the Visa Waiver Program, a law that allows citizens of 38 countries to travel to the United States without obtaining visas (and gives Americans reciprocal privileges in those countries). The amendment removed from the Visa Waiver Program dual nationals who were citizens of four countries (Iraq, Iran, Sudan, and Syria), or anyone who had recently traveled to those countries. The Obama administration added three more to the list (Libya, Somalia, and Yemen), bringing the total to seven. But this law did not bar anyone from coming to the United States. It only required a relatively small percentage of people to obtain a visa first. And to avoid punishing people who clearly had good reasons to travel to the relevant countries, the Obama administration used a waiver provided by Congress for certain travelers, including journalists, aid workers, and officials from international organizations like the United Nations.

Bottom line: No immigration vetting system is perfect, no matter how “extreme.” President Obama often said that his highest priority was keeping Americans safe. In keeping with America’s tradition and ideals, he also worked to establish a vetting system that worked more fairly and efficiently, particularly for refugees who are, by definition, in harm’s way. President Trump should defend his approach on the merits, if he can. He should not compare it to his predecessor’s.
This post has been updated.

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Photo credit: SAUL LOEB/AFP/Getty Images