Seth Wenig/AP Photo
Volunteer lawyers work to help free travelers detained at John F. Kennedy International Airport, January 29, 2017.
On Tuesday, two and a half years after it was first implemented and one year after it was upheld by the Supreme Court, Donald Trump’s “Muslim travel ban” had its first hearing in Congress. Two men described how the policy had separated them from their wives and children. Ismail Alghazali, a Yemeni American from Brooklyn, hasn’t met his five-month-old daughter yet. “I haven’t held her in my arms,” he told members of Congress.
One week after taking office in January 2017, Trump signed an executive order prohibiting the entry of citizens from seven Muslim-majority countries, including places where the U.S. has exacerbated conflict, like Syria, Yemen, and Iraq. In one of the first acts of resistance against the administration, thousands of people flooded airports across the country, holding signs that read “I <3 My Muslim Neighbors” and “We Will Protect Each Other.” At JFK, volunteer lawyers set up a makeshift hub in Terminal 4, with laptops and cellphones to offer legal translation services. The following month, Yemeni bodega owners in New York held an unprecedented protest to oppose the ban. But since then, the impact of the ban is no longer easily visible, and scrutiny of it in the public eye has fallen away.
Last year, after three iterations and multiple lawsuits, the travel ban reached the Supreme Court, where it was upheld. Groups like the Center for Constitutional Rights continue to file lawsuits against the Trump administration for using the policy to wrongly separate American families. For example, the government has only granted 10 percent of waivers to visa applicants from countries under the travel ban. Advocacy groups like Muslim Advocates, Emgage USA, and MPower have lobbied congresspeople to keep the issue alive. In April, Representative Judy Chu and Senator Chris Coons introduced the National Origin-Based Antidiscrimination for Nonimmigrants, or NO BAN, Act, which would repeal the existing ban and bar discrimination against immigrants based on their religion. The bill has been co-sponsored by 170 House members and 34 senators, including presidential candidates Elizabeth Warren, Bernie Sanders, and Kamala Harris. But on the Democratic primary debate stage, conversation about one of Trump’s most contentious and earliest policies has largely disappeared.
During the past two years, the leading Democratic presidential candidates have denounced the ban, and some have said they would rescind it. But none of the three debates has included a question to the candidates about the travel ban specifically—and none of the candidates spoke about it beyond a mention (Jay Inslee reminded the nation he was the “first governor to stand up against Donald Trump’s heinous Muslim ban,” and Beto O’Rourke described the policy as racist.)
“I’m not surprised at all,” Linda Sarsour, one of the founders of MPower, told me. “Most elections are about us, without us.” Given the scale of crises to discuss—health care, climate change, internment at the border—omission of the Muslim ban in the debates can be understandable. But the ban is not just a “Muslim issue.” It represents a unique intersection of Trump’s draconian immigration policy, the war on terrorism, and Islamophobia. Not giving it airtime cedes ground to Trump and the Republicans to frame the ban as a necessary national-security measure. And debating it forces Democratic candidates to answer a challenging question: What does it mean to oppose the ban?
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On the campaign trail in 2015, 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.” After he signed the executive order, commentators noted that Islamophobia had been codified and is “no longer a fringe position.” At the Supreme Court, challengers to the policy described it as a form of discrimination against Muslims, but the Court ultimately upheld it, arguing that the order is “premised on legitimate purposes”—that is, national security. Furthermore, “the Court must consider not only the statements of a particular President, but also the authority of the Presidency itself.” As Chief Justice John Roberts noted in his ruling, both Republican and Democratic presidents, including Barack Obama and George W. Bush, have used executive authority to make national-security decisions. The same arguments were brought up by Republican congressmen and representatives from the Department of Homeland Security and the State Department at Tuesday’s hearing, which was convened by the House Judiciary Subcommittee on Immigration and Citizenship and the Foreign Affairs Subcommittee on Oversight and Investigations.
This, of course, doesn’t mean the ban isn’t Islamophobic. “It took 40 years of advocacy for courts to truly acknowledge that Japanese incarceration through internment camps was wrong,” Manar Waheed, senior legislative and advocacy counsel at the ACLU, told me. However, the ban and the Supreme Court’s ruling affirming it does pose an awkward problem for the Democratic presidential candidates—it forces them to reckon with two issues that have historically gained support on both sides of the aisle: national security and the war on terrorism.
One of the stipulations of the NO BAN Act is to amend Section 212(f) of the Immigration and Nationality Act, which currently prohibits presidents from barring people based on race, sex, nationality, place of birth, and place of residence. The act would add religion to the list. “Without getting rid of the ban and without changing the INA, we continue to be in a position where this blanket authority can be used to discriminate against people,” Waheed told me. More critically, the act would strengthen checks and balances. It would require the president to justify the national-security reasons for restricting entry of people into the U.S., by providing necessary facts and data to Congress.
This seems like a welcome move, but it raises deeper questions. Since the U.S. launched its war on terrorism in 2001, the executive branch has enjoyed immense power over national-security matters. Over the past 20 years, presidents have used national security to justify measures such as detaining people in Guantanamo and at home, launching military strikes against terrorist groups, killing American citizens abroad, and revoking passports of U.S. citizens. In one small way, the NO BAN Act, which focuses just on the entry of foreigners to the U.S., challenges this authority. The question presidential candidates need to be asked on stage is not whether they oppose the ban, but whether they would sign the NO BAN Act if it came across their desk.
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Beyond the NO BAN Act, opposing the Muslim ban raises further questions about what it means to secure our country against terrorism. Over and over again at the hearing, congresspeople and agency panelists invoked the September 11 attacks and the need to protect our borders. For the past two decades, the war on terrorism has been linked to an “Islamic threat,” and Muslims in the U.S. have been viewed through the narrow lens of national security. Both the Bush and Obama administrations oversaw surveillance of Muslims, expansion of the Countering Violent Extremism program, and entrapment of Muslim Americans who were then sent to jail. The Democratic party has largely accepted and contributed to linking terrorism with Islam. As Sarsour told me, “In the 2016 elections, the only time Hillary Clinton spoke about us, she said Muslims are ‘our eyes and ears’ on the frontlines in the fight against terrorism.” Clinton didn’t insist that mosques need to be shut down or Muslims should be banned from entering the country as Trump did, but she did perpetuate the trope that the Muslim American issue is solely a national-security issue. For many Democrats, the value of Muslim Americans has been based on their help in fighting terrorism because, as the assumption goes, the frontlines of this war are in their communities. As Alex Pareene wrote in The New Republic this August, “Much of the press and the political establishment sees Trump’s racism as something he injected into a fundamentally good system, rather than some existent force he merely tapped into.”
This year, Bernie Sanders and Julián Castro were the only two Democratic candidates to attend the Islamic Society of North America conference, the largest gathering of Muslim Americans. Both admitted that for too long Muslims have been considered “the enemy,” as “the problem” in this country. After violent attacks like the recent shooting in El Paso by a white nationalist, the “Islamic threat” framework is getting some pushback. This summer, Congress held a hearing about the growing threat of white supremacy, in which Alexandria Ocasio-Cortez grilled the FBI about focusing solely on Muslims. And last week, DHS recognized white nationalism as a major terror threat in the United States.
But Democratic presidential candidates now must lead the conversation. They need to clarify if they oppose the Muslim ban as a national-security measure, and if they oppose national-security measures that target Muslims in general. Doing so would be a break not just from the Republican party, but from the past.
