Extreme Waste of Time

Did Team Trump Make Its Own Travel Ban Obsolete?

The timeline of President Trump’s blocked travel ban has come and gone, but that doesn’t mean extreme vetting hasn’t begun as the order languishes in the courts.

Photo Illustration by Lyne Lucien/The Daily Beast

As the travel ban heads to the Supreme Court, some on the right have an unanswered question: Is it even necessary?

Since the federal courts blocked Trump’s first and second attempts to ban people from six Muslim-majority countries from entering the U.S., the administration has pledged to bring the case to the highest court in the land.

But despite the losses in court, the “extreme vetting” the ban was supposed to allow has already started, according to conservative immigration hawk Mark Krikorian. The president himself also seems to share that sentiment—and it could make it tougher for the White House to explain why the ban is necessary.

Krikorian pointed out two major vetting changes that are underway, ban be damned: the State Department’s announcement that visa applications can now ask for people’s social media handles, and much tougher vetting of U.S.-bound refugees detained by Australia.

“We can clearly say it’s gotten tougher in some areas and some instances but we can’t quantify that,” he said. “We can’t really give you a comprehensive look at how much it’s tightened up. But it does seem to have tightened, to some degree, somewhere.”

Screening of refugees detained by Australia is particularly notable, Krikorian added. Last month, Reuters reported that American officials have interviewed some asylum-seekers in offshore detention centers for as long as six hours before letting them come to the U.S. Officials also asked detainees about ISIS, according to the report.

That isn’t the only change to happen since the travel ban was rolled out and then blocked. Last week, the State Department announced its officials will be allowed to ask people applying for U.S. visas for all the social media handles they used in the previous five years. A State Department official said they will likely ask for this information when it’s “required to confirm identity or conduct more rigorous national security vetting,” according to Reuters.

And in March, the Department of Homeland Security barred electronic devices bigger than cellphones in carry-on luggage in U.S.-bound flights from 10 airports in the Middle East and North Africa, according to The Washington Post. Homeland Security Secretary John Kelly said last month on Fox News Sunday he may ban laptops in carry-on luggage on any flights in or out of the U.S.

Hassan Ahmad, an immigration attorney in Northern Virginia, said the laptop ban echoed the travel ban.

“I’d gotten a few phone calls of people wondering what this meant, did they have to do this, did it apply to tablets, would their kid be able to watch movies on the plane,” he said. “That’s the extent of it. It was sort of a minor version—a tiny version—of the travel ban. It was chaos in the sense that people didn’t know what to expect and didn’t understand why.”

These changes are significant, and they happened despite the injunction on the travel ban. And that raises questions about what additional changes a temporary travel ban would enable, according to David Inserra, a homeland security expert at the conservative Heritage Foundation.

“It is incumbent on them to explain why it is so important that this be done so urgently and so immediately, especially now that we are five months out from Inauguration Day,” he said. “It is incumbent upon them to explain the threats they are trying to prevent. And if they still view this ban as necessary—well OK, explain to the American people, to policymakers on Capitol Hill and elsewhere how have things changed or not changed in the past few months.”

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One change that hasn’t happened is a DHS analysis of threats from the banned countries that the executive orders required.

When Derrick Watson, a federal judge in Hawaii, barred implementation of the president’s second travel ban, he didn’t specify if he thought that portion of the executive order was unconstitutional. So DHS hasn’t done the analysis. Secretary Kelly mentioned this to Fox News’ Chris Wallace on May 28.

“The irony here is, had it stood, we would have had the 90 days to study,” Kelly said of the ban. “We’re not even studying what would be procedures, because we are enjoined and can’t do that.”

David Lapan, a DHS spokesperson, explained that in more detail in an email to The Daily Beast.

“We’re not able to conduct those detailed reviews to identify what additional information might be needed to determine if an individual from one of the named countries presents a national security or public safety threat, or to determine what additional procedures should be taken regarding refugee applications,” he said.

Despite that, there’s still skepticism that the travel ban is necessary, and that, coupled with the president’s bizarre Monday morning tweetstorm on the topic, means the DOJ attorneys defending the ban—which they insist is not a “ban”—have their work cut out for them.

Trump himself made the same point on Twitter.

The stated purpose of the ban was to let officials find ways to block would-be terrorists from coming to the U.S., and buy them time to implement the “extreme vetting” that Trump promised on the campaign trail.

But that vetting has already started, according to Krikorian—a reality that could make it harder for the White House to make the case for the ban.

When President Trump first pitched the idea of a travel ban during the presidential campaign—at the time calling for a ban on all Muslims—he said the ban would be in place so the government could find a better way to keep dangerous people from entering the country.

“Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what the hell is going on,” he said at a campaign rally on Dec. 7, 2015.

In the following months, he flip-flopped on his Muslim ban promise. Then, a week into his presidency, he signed an executive order banning immigration from seven Muslim-majority countries—an idea Rudy Giuliani claimed to have concocted as a way to legally ban Muslims.

After the federal courts blocked that ban, Trump signed a second, slightly less restrictive version. Courts quickly blocked it as well.

In the meantime, federal officials have already taken significant strides to tighten scrutiny of people looking to enter the U.S.

“The 90 days is up,” said Alex Nowrasteh, an immigration expert for the libertarian Cato Institute. “What’s the fight over?”