Donald Trump on Monday signed a revised executive order to reinstate a ban on immigration from certain Muslim-majority countries and suspend the US refugee program.
The new ban revokes a previous order issued on 27 January that prompted instant chaos at airports across America and was eventually blocked by federal judges following a series of constitutional challenges. The move marked a significant retreat for Trump and his administration’s vigorous defense of the original travel ban as being within the president’s legal authority. But activists said they were planning to challenge the new ban.
The new order seeks to address prior complaints by removing language that granted priority to religious minorities for refugee resettlement, which had been viewed as targeting Muslims. It states that Trump’s original directive “was not motivated by animus toward any religion”, a remark rejected instantly by refugee advocates and civil liberty groups, who said they planned to challenge the second order on similar grounds.
It also includes specific exemptions for lawful permanent residents, who had initially been covered by the previous order.
And it removes Iraq from the list of targeted states, and implements a more gradual roll-out, meaning the new travel ban will not come into full effect for another 10 days. The first order was implemented immediately and prompted confusion and chaos at US airports and consulates abroad.
“Make no mistake,” White House press secretary Sean Spicer told reporters Monday in reference to the changes. “We lost the element of surprise back when the court enjoined this in the ninth circuit and we had to go back to the drawing board.”
The president quietly signed the order away from the presence of cameras or the press, marking a significant departure from the rollout of the original travel ban at the Department of Defense on 27 January.
The revised ban was instead announced by the heads of the agencies that will be tasked with overseeing its implementation. Addressing a limited pool of reporters on Monday, secretary of state Rex Tillerson, Department of Homeland Security (DHS) secretary John Kelly, and attorney general Jeff Sessions dubbed the move critical to US national security.
“With this order, President Trump is exercising his rightful authority to keep our people safe,” Tillerson said.
“As threats to our security continue to evolve and change, common sense dictates that we continue to reevaluate and reassess the systems that we rely upon to protect our country.”
The new travel ban blocks entry to the US for citizens from six of the seven countries named in Trump’s original order – Iran, Somalia, Sudan, Yemen, Syria and Libya – for a period of 90 days. Iraq was removed from the list following criticism that the original order overlooked the country’s role in fighting terrorism and barred entry even to the Iraqi interpreters who had been embedded with US forces in the region.
“Iraq is an important ally in the fight to defeat Isis,” Tillerson said Monday.
Unlike the 27 January order, written by the White House and presented to the agencies as a fait accompli, an “interagency process” permitted concerns about second-order effects of the ban to influence the finished product.
A US official said defense secretary James Mattis and state department officials were responsible for overseeing “special immigration visas” for Iraqi employees of the US, which aided in getting Iraq off the ban.
In the weeks since the ban was issued, US military and Pentagon officials have voiced concerns that their relationship with Iraq, critical to fighting the Islamic State, will be negatively impacted. Asked about the ban last week, Lt General Stephen Townsend told reporters: “I would prefer personally to not see anything that would reflect on that [relationship] except that we have a strong partnership.”
The revised order will also keep in place a 120-day suspension of the refugee program, but it will no longer identify Syrian refugees as subject to an indefinite ban. It also maintains a 50,000 annual cap on America’s refugee intake, which more than halved president Obama’s pledge to resettle 110,000 refugees in 2017.
Several other changes to the travel ban served as a tacit acknowledgement that the original order was hastily crafted and paved the way for a litany of legal questions.
That order was temporarily halted by a federal judge just days after it was issued. The ninth circuit federal appeals court upheld the ruling last month, denying the justice department’s request to reinstate it.
On Monday justice department attorneys informed the ninth circuit they believed the new order was unaffected by the court’s previous ruling. Bob Ferguson, the Washington state attorney general who brought the case against the federal government said in a statement he was “carefully reviewing” the new order to determine its impact on the ongoing case.
The original order, crafted by Trump’s 31-year-old speechwriter, Stephen Miller, and senior adviser Steve Bannon, sparked intense backlash against the White House.
Republicans in Washington criticized the administration for failing to consult with the relevant agencies, such as the Department of Homeland Security and state department, as well as members of Congress. Democrats, faith leaders and civil liberties advocates widely condemned the order as the first step in fulfilling Trump’s campaign pledge to ban Muslim immigration to the US.
The White House has continued to defend the travel ban as a pressing matter of national security. But the administration appeared to undermine its own rationale by delaying the revised order last week, citing a desire not to crowd out the positive media coverage that followed Trump’s joint address before Congress.
Chuck Schumer, the Senate Democratic leader, said the decision by the White House to delay the announcement was “all the proof Americans need to know that this has absolutely nothing to do with national security”.
“Despite their best efforts, I fully expect this executive order to have the same uphill climb in the courts that the previous version had,” Schumer said in a statement.
“A watered down ban is still a ban ... it is mean-spirited, and un-American. It must be repealed.”
Kelly, the DHS secretary, said on Monday he had spent much of the past week on the phone with congressional leaders and other lawmakers “explaining the ins and outs” of the revised order.
“There should be no surprises, whether it’s in the media or on Capitol Hill,” Kelly said.
Initial reaction to the revised order was positive among Republicans. House speaker Paul Ryan, who was among the few to aggressively defend the administration’s previous travel ban, said the revised order “advances our shared goal of protecting the homeland”.
Grace Meng, an immigration researcher for Human Rights Watch’s US program, said the changes contained within Trump’s revised order were “merely cosmetic”.
“President Trump still seems to believe you can determine who’s a terrorist by knowing which country a man, woman or child is from,” Meng said in a statement. “Putting this executive order into effect will only create a false sense of security that genuine steps are being taken to protect Americans from attack, while undermining the standing of the US as a refuge for those at greater risk.”
Other refugee advocacy groups vowed to challenge the order in court, arguing that the revised language did not alter the intent to discriminate against Muslims.
Officials at the DHS and State Department told reporters on a conference call Monday the objective was not to bar individuals on the basis of religion.
“This is not a Muslim ban in any way, shape, or form,” an official said.
“There are dozens and hundreds of millions, if not one-point something billion Muslims who are not subject to this executive order.”
The emphasis, the official added, was on countries where the US lacked “the ability to make adequate screening and vetting determinations for nationals under current procedures”.
But Trump, as a candidate, called for “a total and complete shutdown” of Muslim immigration to the US. After he signed the initial travel ban, former New York City mayor Rudy Giuliani, a close associate of the president’s, said Trump asked him how to implement a Muslim ban legally.
“I’ll tell you the whole history of it: When he first announced it, he said ‘Muslim ban,’” Giuliani said on Fox News. “He called me up, he said, ‘Put a commission together, show me the right way to do it legally.’”
A federal judge invoked Giuliani’s comments in the oral arguments on the initial travel ban. Legal experts say that interview, coupled with Trump’s own repeated vows to ban or limit Muslim immigration, will likely continue to cloud the administration in legal challenges against the travel ban and its intent.
Findings from a DHS report, obtained by several news outlets in recent weeks, also cast doubt on the administration’s rationale for the travel ban.
The document, the authenticity of which was confirmed by the Guardian but framed by a DHS spokesperson as “incomplete”, noted that citizens from the countries identified in Trump’s ban are “rarely implicated in US-based terrorism.”
It further concluded that citizenship was an “unreliable indicator” of the threat posed by terrorism to the US.
DHS officials pushed back on the report in the call with reporters, citing classified information indicating a more significant threat. The justice department, they noted, had opened inquiries into 300 “refugees” for potential links to terrorism. But the officials declined to identify how many of those individuals came from the countries subject to the travel ban.
Faiza Patel, the co-director of the Liberty and National Security Program at the Brennan Center for Justice, said the term “open counterterrorism investigation” was not indicative in and of itself that an individual was involved in any terrorist activity.
Under the Bush administration, the DoJ launched 11,667 “assessments” of people and groups from December 2008 to March 2009. But they resulted in only 427 more intensive investigations.
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