By Laleh Khalili
Feb 08 2017
The Trump executive order that puts into place a series of unconstitutional restrictions on migration of citizens of seven Middle Eastern and African countries is anything but an instance of harried incompetence by an inexperienced White House staff. Rather, it is, like so many other Trump executive orders and presidential memoranda, a malignant, strategic attack on democracy. A closer look at the pre-history and logic of the ban reveals that the Muslim Ban executive order is one among many drastic measures that Trump and his strategists and advisers are deliberately enacting in order to consolidate their power in the face of Trump's lack of electoral mandate.
On 7 December 2015, while campaigning in Republican primaries, Donald Trump called for "a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on." Once Trump became the GOP nominee, the total ban was changed to a form of "extreme vetting," which included testing migrants for loyalty and adherence to liberal values, such as religious tolerance and respect for women and LGBT rights.
Trump—and his policy team, chief strategist Steve Bannon (formerly manager of the extremist right-wing website Breitbart) and senior adviser Stephen Miller (formerly aide to racist Alabama Senator Jeff Sessions)—made good on this promise on 27 January 2016, by signing an executive order titled "Protecting the Nation from Foreign Terrorist Entry into the United States." The order has been interpreted in varying and sometimes contradictory ways. It appears that the order was at first interpreted to do four things: First, it suspended the entry of Syrian refugees, even those granted visas, indefinitely. Second, it suspended entry into the US for a period of four months for citizens of seven countries—Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen—even for those already holding valid visas. Third, it also imposed restrictions on the entry of green card holders from the same seven states, leaving it to the discretion of US Customs and Border Protection agents to decide whether or not they can enter the country. Fourth, it was thought that the order also imposed a four-month ban on citizens of the same seven countries who also simultaneously hold a passport from another non-banned state as well. At the time of this writing it is not entirely clear whether all or just some dual citizens are subjected to the four-month ban.
The executive order drew on the language and premises of a bill titled Visa Waiver Program Improvement and Terrorist Travel Prevention, signed into law by President Obama on 18 December 2015 (after having passed the House by a vote of 407-19). The law delineated exceptions to the existing US visa waiver program, whereby people holding both the passports of the aforementioned seven countries—–Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen—and passports of countries entitled to visa waiver would not have automatic access to visa waiver and would have to formally apply for visas for entry to the US. The seven countries designated by Obama for stricter entry criteria are the same seven countries in the Trump Muslim ban executive order. And the seven countries are geopolitical adversaries of the United States, none of the citizens of which have committed terrorist offenses on US soil.
More than any other executive order signed by Trump in the furious flurry of his first week in office, the context and content of the Muslim ban executive order provides an exemplary and worrying optic into the operations of the Trump White House.
The first and foremost explanation for the expeditious, indeed whiplash-rapid, use of executive prerogative is Trump's interest in signalling to his base. In this case, the segment of the base to whom the order appeals are the unabashedly xenophobic white nationalists. The order was signed on Holocaust Memorial Day. Not coincidentally (though astonishingly), the White House press release commemorating the day includes no mention of the Jewish victims of the Holocaust. This denigration of Muslims and Jews is par for the course of white nationalists who support Trump. Second, the Muslim ban—alongside the border wall with Mexico—has been from the start the most provocative of Trump's campaign promises. Throughout the campaign, it provoked the most protests, and Trump supporters consistently cited it as the reason he was to be distinguished from his "politically correct" rivals and supported. Both the ban and the wall are the concrete manifestations of Trump's slogan "America First." That slogan echoes the name of a 1940s anti-Semitic national organization, with its primary base in the Midwest, whose isolationist aim was to prevent the US from countering Nazi Germany. The sentiment of this slogan is also at the core of Steve Bannon's white nationalist ideology.
The content of the ban itself is notable. Though the seven countries are the same as those included in the 2015 Obama legislation, now the order attempts to go further still and grant border agents discretionary power to exclude US green card holders, in effect denying residency to some Muslims who had already legally obtained it. As Rudy Giuliani has gleefully explained on Fox News:
When [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." I put a commission together with Judge [Mike] Mukasey, with Congressman [Mike] McCaul, [Rep.] Pete King; whole group of very expert lawyers on this. And what we did was, we focused on—instead of religion, danger! The areas of the world that create danger for us! Which is a factual basis, not a religious basis. Perfectly legal, perfectly sensible. And that's what the ban is based on.
It is not clear whether Giuliani's boasts about his role in drawing up the Muslim ban order are borne out by facts, since The New York Times reports that Bannon had in fact been in charge of drafting the executive order as early as a year ago.
In the aftermath of the massive backlash—including massive popular demonstrations and emergency lawsuits to stay the order—the Trump White House has doubled down on the order and has indicated that Egypt, Saudi Arabia, and other countries may also be added to the list of countries whose citizens will be banned from entry into the US.
The Chaotic Release of the Executive Order
Just as notable as the content of the Muslim ban executive order is its release procedure. The actual order was preceded by days of speculation and rumours and multiple versions of leaked drafts, laying the groundwork for the final version through sowing terror and confusion about what was to come. While the various versions floated about on social and mainstream media, according to CNN, neither the Office of Legal Counsel (OLC) nor any department heads were consulted on the final text of the order. The US Department of Homeland Security (DHS) officials only saw the text shortly before it was released. On Sunday, according to The New York Times, the White House insisted that the OLC had cleared the document (though no confirmation from the OLC itself was forthcoming), while the DHS issued a confusing press release which said that DHS will continue to enforce the ban, while also pledging to follow judicial orders.
The executive order was released with immediate effect on Friday afternoon, effectively allowing for facts on the ground to develop over the weekend in a state of chaos. The text of the executive order was not released for hours, while in the interim, Trump adviser Kellyanne Conway told a television interviewer that the text may never be released. According to CNN and The New York Times, it took hours for the White House to clarify for the benefit of agencies that were to implement the order how the order was to be interpreted, while the DHS did not receive the list of the countries included in the order until three am on Saturday morning. On Saturday, Bannon and Miller overruled the DHS interpretation of the order and demanded that green card holders be subjected to screening and their entry into the US be determined on a case-by-case basis by border agents. Also on Saturday, the State Department announced that foreign dual citizens of the same seven states would also be excluded from the US.
The execution of the order depended largely on the discretion of the officers of Customs and Border Protection. Notably, during his campaign, Trump had received the overwhelming endorsement of National Immigration and Customs Enforcement Council, a union representing five thousand federal immigration officers, as well as the National Border Patrol Council, the union representing border agents. In fact, these border agents displayed an extraordinary zealotry in interpreting and enforcing the order, and even after a federal judge ordered a stay (which I'll discuss more below), according to the American Civil Liberties Union (ACLU) and other civil rights lawyers, some customs agents refused to obey the court at airports in Los Angeles and Washington, DC, blocking attorneys' access to their clients.
What the Trump White House had not counted on was the overwhelming resistance organized in opposition to this executive order on Saturday. As the news of denied entries—especially for green card holders got out—all major international airports in the US, and particularly JFK in New York, saw massive protests organized by coalitions of refugees' rights activists, Black Lives Matter-related groups, and Muslim and other civil rights groups. The New York Taxi Workers Alliance issued a statement in support of the immigrants, refugees and protesters, and refused to drop off at or pick up from JFK. Meanwhile, when a refugee assistance organization put out a call for legal assistance for detained refugees, some three thousand lawyers volunteered their services. The order was seen as so egregious that even a number of CEOs and corporate spokespersons voiced their opposition to it, including Mark Zuckerberg of Facebook and Tim Cook of Apple, and the Twitter social media person. While Uber was seen to break the New York Taxi Workers Alliance strike, Lyft, which was not seen to cross the picket line, announced a $1 million donation to the ACLU, and Sergey Brin of Google showed up to protest at the San Francisco airport.
The ACLU and its allies in New York immediately filed a lawsuit (Darweesh vs. Trump) on behalf of an Iraqi interpreter who had worked with the US military, and in Boston, on behalf of two Iranian professors and green card holders at the University of Massachusetts-Dartmouth. In Virginia, some sixty claimants lodged a petition for a temporary restraining order against the executive order, while in Seattle, the Northwest Immigrant Rights Project filed a petition on behalf of two unnamed claimants for a stay of the order. In Los Angeles a lawsuit was filed on behalf of a deported Iranian national holding a valid visa. In all cases, some relief was granted to the petitioners. In Massachusetts, the most liberal ruling ordered a stay to deportations and detentions for seven days, before which another hearing would be scheduled. The Los Angeles ruling was similarly broad, and in fact, ordered the respondents to return the deported claimant back to the US. In Seattle, a stay was granted and a further hearing set for 3 February. In Virginia, the judge ordered that the detainees be granted access to legal counsel and another hearing be scheduled within seven days. The most restrictive order was the one granted in New York, which granted relief only to those already detained, and did not affect the 120-day ban on citizens of Iraq, Iran, Somalia, Sudan, Libya or Yemen, or the indefinite ban on Syrian refugees.
In the aftermath of the rulings, Canada announced that after approaching Trump National Security Adviser Mike Flynn, Flynn had said that foreign dual nationals of the seven states were in fact not subject to a ban, while the White House reversed its ban on green card holders. The UK issued guidance to the effect that the ban did not apply to dual citizens of the UK and one of the seven countries. At the time of this writing, it is not clear whether Canada and the UK are the only countries whose dual citizens are exempted from the ban.
A Strategy That Entrenches Rule by Fiat
Though a number of political observers have claimed that the chaos created by this process is a sign of the incompetence of the Trump administration, there is another, far more sinister, take on the proceedings. The Muslim ban executive order is the perfect prototype for the anti-democratic political process Trump and his chief strategist and advisor seem to be putting into place.
This Political Process Is Distinguished By A Number Of Characteristics:
First, the opacity of the executive orders and the various draft versions that precede them are not just side effects of incompetent management. Upon closer scrutiny, they appear intended to produce orchestrated chaos. This kind of havoc supplies the uncertainty and arbitrariness that are necessary for rule by fiat, a process to which Trump and his advisers' authoritarian style is perfectly suited. The uncertainty—about how the order is to be interpreted, to what countries it applies, whether US residents are subjected to it or not and so on—is instrumental in forestalling a coherent legal challenge.
Second, the relentlessness of Trump's exercise of executive prerogative works to bulldoze over any possible formal or institutional dissent. It is noteworthy that on the same day or a day after the Muslim ban executive order, Trump also issued various other memoranda and orders, the most significant of which downgraded the participation of the director of National Intelligence and the chairman of Joint Chiefs of Staff in the principals committee of the National Security Council (NSC), making their attendance not a regular feature of the principals committee meeting, but only predicated on the meeting agenda. At the same time, Bannon was elevated to regular attendance of the principals committee, something no political adviser of a president has done before. The assumption is that if a congressional opposition is busy dealing with the fallout of the Muslim ban order, they will not have the time or the inclination to address the changes to the makeup of the NSC. Further, the arbitrariness and the relentlessness factors are likely both intended to demoralize any further opposition.
Third, the multi-pronged attack on the institutions of the state and on mechanisms of public control over them depend on three things: (a) a well-functioning bureaucracy which operates smoothly and absorbs new orders in an orderly fashion; (b) the acquiescence or support of the private sector; and (c) a grey zone in the interstices of laws and administrative procedures, where honourable politicians are expected to act according to existing norms and customs of governance.
As regards bureaucracy, Trump's strategy (or likely that of his advisers) has been diabolically intelligent. Those federal agencies that may have posed a threat to the Trump White House have been defanged from the very outset, and given the ways in which bureaucracies are intended to follow law and executive power, these defanged agencies—the US Environmental Protection Agency foremost among them—have had to acquiesce to the funding cuts, hiring freeze and gag rules. There have been reports that the top diplomats in the State Department were purged in anticipation of their dissent against the Muslim Ban. On Monday, 30 January, Trump fired the acting attorney general, Sally Yates, who had instructed Justice Department lawyers to not comply with the Muslim Ban executive order, because of its illegality.
In addition to silencing any bureaucrats, diplomats, or agencies whose remit threatens the Trump/Bannon agenda, Trump's inner circle has relied on the complicity, in fact zealotry, of the bureaucrats and officers in the border protection and immigration agencies, who have shown themselves to be supporters of the president. Their vehemence in fact has made it possible for the White House to rely on the border officers for the most restrictive and bigoted interpretation of the order.
Like sympathetic agency bureaucrats, many corporations have fallen into line with the ban. Uber drivers broke the yellow cab strike at the JFK airport. Lufthansa and Qatar Airways are reported to have turned away even green card holders from the seven states at the departure counters (unlike other airlines which allowed green card holders to proceed to the US border). In fact, the market as a whole has jubilantly responded to a Trump presidency, with various market indices rising on the news of some of Trump's executive orders, foremost among them the order to build a wall on the border with Mexico, which will act as a boon for construction and security sectors.
The Trump/Bannon strategy also takes advantage of informality of norms and the honour system. Ethics rules are quietly scrapped. Trump refuses to place his businesses in trust because there are no laws to this effect, and adherence to the norm depends on the honor of the elected official. In fact, the prerogative of the president to sign executive orders itself operates in this grey zone of informality, usually made to conform to the law by the advice of the OLC or other legal bodies. What the Trump White House has done is to do away with interagency fact-finding, consultation and coordination, with usual channels of communication with the public and government officials, and even with seeking legal advice on controversial orders.
What all these steps are intended to achieve is a downgrading of the democratic public. An aware and politicized public controls the levers of the state and insists on its political and socioeconomic interests being met in the halls of power. It insists on electoral methods that do not erase its majority through machinations of archaic institutions, such as the Electoral College, or deny its votes through gerrymandering and voter suppression. This politicized and conscious public would be a threat to the extremist white nationalist agenda of Trump/Bannon.
The one factor that the Trump administration seems not to have considered in its infernal calculus is the existence of precisely this kind of public, best demonstrated in the wave of protests that greeted international flights since Saturday. The protests have been so strong, so continuous and so widespread that they have even compelled formerly servile Democratic lawmakers—many of whom had voted for all Trump nominees with little protest—to begin voicing their opposition to the Muslim ban, first hesitantly, and as the protests have grown, more confidently. As long as organizers continue to organize, politicize new protesters and hold the feet of the Trump administration and of the two parties to the fire, the chances of Bannon's Mephistophelian plan for dissolution of a public voice can still be stymied.
Laleh Khalili is Professor of the Politics of the Modern Middle East at the School of Oriental and African Studies. She is the author of Time in the Shadows: Confinement in Counterinsurgencies and Heroes and Martyrs of Palestine: The Politics of National Commemoration. She is also the co-editor (with Jillian Schwedler) of Policing and Prisons in the Middle East: Formations of Coercion.