Chapter 1: Who are you? What is your faith?

US President Trump swears in General Mattis as US Defense Secretary . DC
(Credit: Getty Images)

Give me your tired, your poor, 
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tossed, to me:
I lift my lamp beside the golden door (Emma Lazarus).

January 20, 2017, brought with it the swearing in of a new president in the United States of America (US): the 45th holder of the highest political office in the land, Donald John Trump. Seven days later, the President signed Executive Order 13769 titled Protecting the Nation From Foreign Terrorist Entry Into the United States (The White House, 2017a). Chaos ensued.

One of a trio of executive orders[1] that have been called “the blueprints for the most significant shift in American foreign policy since the Japanese attack on Pearl Harbor in December 1941” (Suri, 2017), Protecting the Nation was intended to ban citizens of seven countries from entering the US for 90 days (The White House, 2017a). These countries were Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen; all Muslim-majority countries designated ‘of particular concern’ under the legislation H. R. 158 – Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015. Protecting the Nation was also intended to suspend admission into the US of all refugees from any country in the world for 120 days and ban the “detrimental” admission of refugees from Syria for an indefinite time. Upon the resumption of refugee admissions subsequent to the 120-day ban, Executive Order 13769 was furthermore intended to prioritize admissions to the US “on the basis of religious-based persecution, if the religion of the refugees seeking admission was a minority in their country of nationality” (ibid.). 

The implementation of Protecting the Nation resulted in chaos and confusion at most borders in the US and at points of flight boarding and entry across the globe. Holders of all types of visas from the seven countries referenced above were detained, questioned, or denied entry into America. Refugees who had been cleared for entry under the previous administration through a multi-agency vetting process were not allowed to board flights to the US. Those already in transit when the implementation was rolled out were placed on the first flight out upon arrival.

Lawful permanent residents (LPRs) of the US were at first denied entry outright and deported by Customs and Border Protection (CBP) agents even in cases without cause. LPRs entering later were allowed to proceed for a second tier of questioning that was at times reported to last several hours. US citizens in possession of dual nationality from any of the above countries of concern were subjected to the same process.

CBP agents demanded to see contact lists in phones and asked for the social media account login details of the targeted travelers, in some instances engaging in physical force to satisfy these demands. The agents also asked questions about political opinions and religious practices. Throughout the ordeal, legal representation was reported to be discouraged in an active manner or denied by CBP, even though lawyers offered their services pro bono to the affected travelers.

Photographs and reports of young children being separated by force from their parents, or accompanying adults, and detained for hours in handcuffs made their way into the mainstream media. The same occurred for persons of senior age and those with disabilities, in particular physical disabilities. Mass protests ensued inside the country at many of its international airports by American citizens and non-citizens alike. Chatter on Facebook and Twitter erupted with violence.

Conservatives and liberals went crazy in public at their respective ends of the political ideologies spectrum, no matter who they were or for whom they worked. Multiple major agencies of the federal government engaged in contradictory reporting of what was happening or what was supposed to be happening, with a seeming lack of adequate knowledge, displacement of responsibility, obfuscations, paranoia, deniability, name-calling, and mud-slinging in horizontal and vertical directions being the order of the day; both inter- and intra-agencies and the Executive Branch of government. Outrage at Protecting the Nation and sabotage, even among staff of the administration, became common. Governments of the 50 states of the Union acted some in concert with, some in opposition to, Executive Order 13769 in accordance with their political leanings.

After a while, heads started to roll. To name just one prominent instance, the acting Attorney General of America, Sally Yates, was fired in a peremptory manner after having issued a letter in which she instructed lawyers of the US Department of Justice (DOJ) not to defend or enforce the requirements of Protecting the Nation on the grounds they were unlawful (Smith, Jacobs, & Ackerman, 2017). Until the US Western District Court judge, James L. Robart, imposed a temporary nationwide restraining order on Executive Order 13769 in State of Washington vs. Donald J. Trump et al. (17-CV-00141-JLR), chaos and a public spectacle the likes of which the US had not witnessed in several years continued reigning, with dual-nationality American citizens, LPRs, refugees, and all kinds of visa holders serving as the ball that was caught in the middle and bounced back and forth without mercy in the courts of giving order, enforcement, adjudication, and public opinion. The restraining order handed down by Robart and delivered with the stinging rebuke, “No one is above the law – not even the president” (ibid.) reverted the entire situation back to what it had been prior to the signing of Protecting the Nation on January 27.

This suspension of Executive Order 13769 was upheld on February 10, 2017. In State of Washington, State of Minnesota v. Donald J. Trump, Rex W. Tillerson, and John F. Kelly (17-35105), the federal Ninth US Circuit Court of Appeals ruled in a 3-0 decision that with Protecting the Nation:

  1. “The Government has not shown that the Executive Order provides what due process requires, such as notice and a hearing prior to restricting an individual’s ability to travel. Indeed, the Government does not contend that the Executive Order provides for such process . . . the Government argues that most or all of the individuals affected by the Executive Order have no rights under the Due Process Clause” (ibid.). This despite the Fifth Amendment prohibiting the federal government from depriving human persons of their right to “life, liberty, or property without due process of law” (U.S. Constitution, Amend. V); the protections of which Amendment are not limited to citizens, but “appl[y] to all ‘persons’ within the United States, including aliens” (State of Washington, State of Minnesota v. Donald J. Trump, Rex W. Tillerson, and John F. Kelly [17-35105]) irrespective of their status.
  2. “The Government has not shown that a stay is necessary to avoid irreparable injury . . . has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States. Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its position at all. We disagree, as explained above.
  3. “On the one hand, the public has a powerful interest in national security and in the ability of an elected president to enact policies. And on the other, the public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination. We need not characterize the public interest more definitely than this; when considered alongside the hardships discussed above, these competing public interests do not justify a stay” (ibid.).

On February 13, 2017, a US District Court judge in Virginia, Leonie Brinkema, ruled that unconstitutional religious bias was at the heart of Protecting the Nation, violating the First Amendment. She declared that the Executive Order “was not motivated by rational national security concerns, [but] by religious prejudice toward Muslims . . . The ‘Muslim Ban’ was a centerpiece of the president’s campaign for months, and the press release calling for it was still available on his website as of the day this Memorandum Opinion is being entered . . . Maximum power does not mean absolute power. Every presidential action must still comply with the limits” and separation of powers established by the Constitution (British Broadcasting Corporation [BBC], 2017; Firozi, 2017).

She also criticized the fact that Christians from the relevant countries of concern were still able to be admitted to the US on a case-by-case basis, because this amounted to a religious test.

On March 6, 2017, the Executive Order 13780 was signed in relation to Protecting the Nation and released by President Trump (The White House, 2017b). This Order revoked and replaced Executive Order 13769, with some modifications as follows:

  1. Iraq was granted different treatment because of its collaboration with the US government;
  2. The other six countries of concern remained a “state sponsor of terrorism . . . compromised by terrorist organizations, or contains active conflict zones” ();
  3. The Order would not affect American dual nationality citizens or LPRs;
  4. The indefinite ban on refugees was re-written to be global, not specific to Syria.

All other conditions remained the same as in the original Order.

The revised Protecting the Nation was intended to go into effect on March 16, 2017. However, various states – namely, California, Hawaii, Maryland, Massachusetts, Minnesota, New York, Oregon, and Washington – have already challenged Executive Order 13780 in court on the basis of its constitutionality. The federal district court in Hawaii has issued a temporary restraining order nationwide in its regard, followed by a similar order handed down by the federal district court in Maryland (Jarrett, 2017).

In State of Hawaii and Ismail Elshikh v. Donald J. Trump et al. (17-00050 DKW-KSC), Judge Derrick Watson ruled that with the revised Protecting the Nation:

“The Executive Order [13780] does not facially discriminate for or against any particular religion, or for or against religion versus non-religion . . . [However], the illogic of the Government’s contentions is palpable. The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed. The Court declines to relegate its Establishment Clause analysis to a purely mathematical exercise . . . because ‘the Supreme Court has never reduced its Establishment Clause jurisprudence to a mathematical exercise. It is a discriminatory purpose that matters, no matter how inefficient the execution.’

“Equally flawed is the notion that the Executive Order cannot be found to have targeted Islam. . . It is undisputed, using the primary source upon which the Government itself relies, that these six countries have overwhelmingly Muslim populations that range from 90.7% to 99.8%. It would therefore be no paradigmatic leap to conclude that targeting these countries likewise targets Islam. Certainly, it would be inappropriate to conclude, as the Government does, that it does not.

“The Supreme Court has been even more emphatic: courts may not ‘turn a blind eye to the context in which [a] policy arose’ . . . The record before this Court is unique. It includes significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor . . . there is nothing ‘veiled’ about this press release: ‘Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States’ . . . Nor is there anything ‘secret’ about the Executive’s motive specific to the issuance of the Executive Order: ‘Rudolph Giuliani explained on television how the Executive Order came to be. He said, ‘When [Mr. Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’ These plainly-worded statements, made in the months leading up to and contemporaneous with the signing of the Executive Order, and, in many cases, made by the Executive himself, betray the Executive Order’s stated secular purpose.

“Defendants and all their respective officers, agents, servants, employees, and attorneys, and persons in active concert or participation with them, are hereby enjoined from enforcing or implementing Sections 2 and 6 of the Executive Order across the Nation. Enforcement of these provisions in all places, including the United States, at all United States borders and ports of entry, and in the issuance of visas is prohibited, pending further orders from this Court” (ibid.).

In the meantime, a federal district court judge in Maryland, Theodore D. Chuang, both echoed the earlier conclusions of Judge Watson and issued a separate, albeit narrower, order that stopped the most important section of Executive Order 13780 from going into effect – namely, the ban on travel to the US from the six listed countries of concern. Judge Chuang also cited the public comments of President Trump in his ruling and concluded that there existed “strong indications that the national security purpose is not the primary purpose of the travel ban (Burns, 2017) . . . The history of public statements continues to provide a convincing case that the purpose of the Second Executive Order remains the realization of the long-envisioned Muslim ban” (Zapotosky, 2017).

On March 19, 2017, the DOJ filed a motion in which it asked Judge Watson in Hawaii to ‘clarify [and] narrow’ his injunction to match the narrower decision that had been handed down by Judge Chuang in Maryland – namely, to exclude from his injunction the global freeze on refugees entering America (Ghosh, 2017). Judge Watson refused this request of the DOJ, because “The Motion . . . asks the Court to make a distinction that the Federal Defendants’ previous briefs and arguments never did . . . there is nothing unclear about the scope of the Court’s order . . . (‘Defendants are hereby enjoined from enforcing or implementing Sections 2 and 6 of the Executive Order across the Nation’). The Federal Defendants’ Motion is DENIED” (Moreno, 2017).

But things did not stop there.

[1] The other two executive orders were titled Enhancing Public Safety in the Interior of the United States and Border Security and Immigration Enforcement Improvements. Both these orders were signed on January 25, 2017.