The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
President Donald Trump's recent executive order on refugees is both cruel and counterproductive. It inflicts great harm on many thousands of people while simultaneously endangering national security. One of President Obama's last official acts was a cruel policy reversal targeting Cuban migrants fleeing tyranny. Trump has outdone his predecessor on this front. His order is an example of gratuitous cruelty to refugees fleeing oppression in many nations, not just one.
Trump's order is a major reversal of American refugee policy. It suspends all refugee admissions for 120 days, bans the admission of Syrian refugees indefinitely, and suspends the entry of all immigrants and visa holders from seven majority-Muslim nations for 90 days. The order even applies to immigrants from the affected countries who have been granted permanent residency in the United States, many of whom have been denied entry at airports (though White House Chief of Staff Reince Priebus now says green card holders may not be covered after all).
Perhaps most importantly, the order reduces the total permitted intake of refugees for the 2017 fiscal year from 110,000 to 50,000. This issue has not gotten nearly as much media coverage as other parts of the order. But it gives the lie to the administration's claims that the order merely targets migrants from countries that are unusually likely to pose security risks. The reduction in total intake is a cruel blow to refugees from all over the world, both Muslim and otherwise, including many who don't pose any even remotely conceivable risk. The order condemns thousands of people to the risk of death and oppression or—at best—life in horrendous refugee camps.
The White House claims that the order is intended to protect the US against terrorism. But any such risk is extremely small already. The average American has only about a 1 in 51 million per year chance of being killed by a foreign terrorist of any kind, Muslim or non-Muslim, refugee or otherwise. That is far less than the odds of being killed by a lightning strike. The odds of being killed by a refugee terrorist are far lower still.
On net, Trump's order actually increases the risk to national security far more than it might reduce it. Trump and his supporters are not the only ones who want to keep Syrian refugees out of the US. The leaders of ISIS feel exactly the same way. They want to prevent Muslims from fleeing to the West so as not to reduce the number of people living under ISIS rule, and also because they fear that refugees might be influenced by Western liberal values inimical to radical Islamism. Trump's order plays into ISIS' hands, both by keeping out refugees and by needlessly antagonizing Muslims around the world.
Trump's order also benefits terrorists because it keeps out Iraqis and Syrians who helped US forces, often risking their own lives in the process. If you were an Iraqi or Syrian considering helping the US, would you trust American promises of refuge after this order? I don't think I would. Intelligence and other assistance from members of the local population is essential to combatting terrorists and insurgents. Don't take my word for it. Take that of the US military's counterinsurgency manual, coauthored by General James Mattis, the newly confirmed secretary of defense (one of Trump's few good appointees). Thanks to Donald Trump, US forces are now less likely to get that kind of support.
Trump has tried to defend his policies by claiming that they will help Christian refugees. It is indeed true that Christians have been subjected to horrific persecution by radical Islamists in Iraq and Syria. But Trump's categorical ban on Syrian refugees excludes Christians too, even blocking Christian refugees who have arrived at the airport with previously issued visas in hand.
In any event, efforts to help Christian refugees need not come at the expense of Muslims and others. We should provide refugees fleeing tyranny and oppression regardless of their religion. Both Muslim and Christian victims of oppression deserve refuge, and both are potentially valuable allies in the War on Terror. The same is true of adherents of other religions targeted by our enemies, such as the Yazidis.
The administration claims that it will protect refugees by establishing "safe zones" in Syria itself. But such "safe zones" are highly unlikely to be truly safe, and are likely to be breeding grounds for radicalization. At the very least, it is unlikely that the safe zones can work without a substantial deployment of US ground forces. And it is far from clear that the US has the political will for any such effort. In October, Trump himself said he opposed any such deployment.
The one silver lining of Trump's order is that its incompetent drafting leaves it vulnerable to various legal challenges. Already, opponents have already secured four federal court orders suspending various parts of the order, and there may be more such rulings in the near future. As Benjamin Wittes, a leading national security law expert, puts it: "The malevolence of President Trump's Executive Order on visas and refugees is mitigated chiefly-and perhaps only-by the astonishing incompetence of its drafting and construction."
The events of the last two days are probably just the beginning of the political and legal struggle over Trump's cruel refugee policy. Hopefully, the combination of widespread political opposition and adverse court decisions will force the administration to pull back. But we should not expect that fight to be either easy or quick.
UPDATE: Homeland Security Secretary John Kelly now says that green card holders from the affected nations will be allowed into the United States "absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare." But given the chaos surrounding the implementation of the order, we cannot take it for granted that the White House will accept Kelly's decision. And what counts as "significant derogatory information" is, to say the least, vague.
UPDATE #2: I have clarified the data on the odds of being killed by foreign terrorists to differentiate between all foreigners and refugees specifically. Both risks are very low. In the original version of this post, I conflated the figure for refugee terrorists (1 in 3.6 billion per year), with that for all immigrants (1 in 51 million, calculated from data compiled here). But both are still far lower than the odds of being killed by a lightning strike (about 1 in 10 million per year, calculated from data here). I regret the mistake. The chance of being killed by a foreign-born terrorist of any kind (including those here on tourist visas, who have committed the vast majority of terrorist attacks by foreigners on US soil) is 1 in 3.9 million per year, about 2.5 times higher than the risk of death by lightning, but still extremely low (about five times lower than the risk of dying by drowning in a bathtub, for example). And most of the death toll that shows up in the data comes from the 9/11 attack, a type of incident that is unlikely to recur, given changes in airport security and the likelihood that aircrew will no longer cooperate with hijackers, as happened on 9/11.