17 November 2016
The newest members of the Trump transition team, the wildly anti-immigrant Kansas Secretary of State Kris Kobach (pictured), told Reuters that a Muslim “registry” is indeed in the works.
Late last year, then-presidential candidate Donald Trump kicked up a massive controversy by endorsing the idea of a “database” for Muslims within the country as a means for fighting terrorism. This was one of the first planks in Trump’s national security platform, which is characterized by a consistent eagerness to disregard civil liberties and human rights in the pursuit of safety.
His plans to aggressively use immigration laws to thwart terrorism eventually received its own slogan: “extreme vetting.”
Now that Trump is actually going to be president, someone will have to oversee and implement this draconian measure. This someone could be Kris Kobach.
Kobach is apparently mulling the resurrection of the National Security Entry-Exit Registration System, a 2002 program that he helped design and implement while working at the Justice Department under President George W. Bush.
Launched in 2002, the National Security Entry-Exit Registration System was a post-9/11 “War on Terror” program that explicitly targeted immigrants from Muslim countries as potential terror threats. The program created a list of 25 specially designated countries (24 of which were majority Muslim, with North Korea as the lone exception) and required non-citizens who hailed from those countries to register with immigration services and keep the government updated as to their movements (if they changed addresses, for example). It also required that people traveling from those countries to the U.S. undergo additional security screening — fingerprinting, photographing and regular check-ins with immigration officials.
The program was rendered inoperative in 2011 when the Obama administration issued an order delisting all the countries whose residents had been singled out for additional scrutiny.
The order stated that other methods of collecting entry and exit data had superseded the registration system and the Department of Homeland Security “has determined that recapturing this data manually when a nonimmigrant is seeking admission to the United States is redundant and no longer provides any increase in security.”
A Homeland Security inspector general report from 2012 recommended that the program be terminated altogether, stating that “there was no longer a value in the NSEERS program” and warning that the continued use of the NSEERS database at certain ports of entry was causing delays and confusion as a result of its “cumbersome design and frequent outages.”
While it was in operation, the registration system’s primary contribution to the fight against terrorism was disrupting the lives of Muslims in the U.S. who tried to comply with its rules and regulations. The earliest version of the program had a special registration component that required any male nonresident age 16 and older who was from a country on the watch list to register in person at an immigration office. Nearly 83,000 showed up to register, and more than 13,000 of them were thrown into deportation proceedings — even those who were in the process of obtaining legal residency.
The special registration provisions were scaled back in December 2003, amid questions over racial profiling and the program’s effectiveness. As the Chicago Tribune reported shortly before that, the registrations and deportations were breaking up families and throwing people’s live into chaos but had “not led to a single public charge of terrorism.”
When the National Security Entry-Exit Registration System was finally rendered inoperative nearly a decade later, the American Civil Liberties Union was quick to point out that the program, for all its controversy and disruption, had resulted in zero terrorism convictions.
The Obama administration’s pulling the plug on the National Security Entry-Exit Registration System came in recognition of the growing consensus that profiling based on race or nationality (as opposed to behavior) isn’t just ineffective as a counterterrorism strategy; it’s also counterproductive and wasteful.
But the animating force behind the Trump national security ethos has been the idea of “strength”. Resurrecting an initiative that transforms the mere fact of being Muslim into a cause for suspicion meshes nicely with the apparent his platform's xenophobic rhetoric and authoritarian leanings.
The American Civil Liberties Union stated that if the president-elect attempts “to implement his unconstitutional campaign promises, we’ll see him in court.”
But when it comes to the immigrant registration program that would target Muslims entering the United States, three constitutional lawyers say the ACLU won’t have much of a chance before a judge.
The system was never struck down by a court in the nearly nine years it was in place.
Jonathan Turley, a law professor at George Washington University, said Wednesday that “a president’s power is at its apex at the nation’s borders” and that the Supreme Court has “consistently reaffirmed the power of the president to control the entry and exit from the country as a matter of national security.” Such precedent, he said would give Trump’s administration a decided advantage in any litigation.
Immigration law would afford the government special advantages, Temple University international law professor Peter Spiro said, because it exists in a “parallel universe” where many of the constitutional protections afforded in other legal situations do not apply. He said “discrimination on the basis of nationality is something that, again, one finds all over the immigration law, and in a non-immigration context would almost certainly not withstand the equal-protection challenges.”
Even Trump’s original proposal to bar all Muslims from entering the country could potentially end up passing a constitutional test, Spiro said, telling POLITICO that “my guess is that a court would strike that down, but it’s not clear, actually.” That Trump has backed away from that position, taken during the GOP primary, and assumed the more legally defensible “extreme vetting” one, is evidence, Spiro said, that he was given legal advice on the issue.
“Kris Kobach knows his stuff. And I assume it was Kobach or somebody else [who] got to Trump and Trump was changing his tune,” he said.
Simon Maloy, "Kris Kobach, Donald Trump transition team member, resurrects failed Muslim registry plan from “War on Terror”" Salon November 17, 2016
Lois Nelson, "Trump's Muslim registry wouldn't be illegal, constitutional law experts say" Politico November 17, 2016