The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
My latest op-ed, on Lawfare, argues that the Biden administration's first big counterterrorism blunder was getting rid of the Trump travel ban:
How, you might ask, could undoing such an unpopular and racist order possibly be a mistake? The answer is that, by the time of its revocation, the Trump travel ban had become something quite different from its starting point. Under pressure from the courts and the press, the leadership of the Department of Homeland Security (DHS) had reshaped Trump's order into a calibrated security tool that depended not at all on the majority religion of the countries it affected.
One of DHS's great successes since 9/11 has been finding a way to let huge numbers of people into the country each day without giving up on security. The key is knowing more about each traveler, so that the government can make good risk-based decisions about who to admit. But that data-driven strategy only works if the U.S. has a minimum of cooperation from other governments. If the traveler's home government makes it easy to obtain a fake identity, or if it refuses to tell the U.S. about travelers with criminal or terrorist ties, a border security system that depends on traveler data will fail.
The original travel ban executive orders, issued in January and March of 2017, weren't grounded directly in the need for such cooperation. Instead, to determine which countries were subject to the ban, the orders simply borrowed their list from past congressional and executive designations. But these orders did contemplate that the temporary ban would be followed by an interagency effort to determine the kind of information needed to admit future travelers. DHS took this as a mandate to put the ban on a new footing—one that would support its data-driven, individualized assessment of travelers by encouraging deeper cooperation from other governments.
Many commentators have jeered at the idea of Republicans joining the Trump administration in the hope of contributing to government by sanding the rough edges off Trump's instincts and turning them into good policy. But this is such a case. DHS officials were able to transform Trump's off-the-cuff rhetoric into a defensible and important contribution to U.S. border security.
By September 2017, DHS's work was adopted in a presidential proclamation. It did not judge a handful of countries by the ethnicity or religion of their citizens; nor did it borrow its list from other legal contexts. Instead, the department had ranked 200 countries by how much help they give the U.S. in deciding who can safely be admitted to this country.
It is an unfortunate fact that some governments don't issue reliable identity documents, or don't bother to tell Interpol when one of their citizens' passports is stolen, even though such a passport can be used for a long time outside the country of issuance. Other governments are reluctant to share the criminal or terrorist records of their citizens, and a few are so hostile that the U.S. can't count on them for any help in spotting terrorists.
The U.S. has a pretty good idea which countries are doing a good job on these and other measures of cooperation. In fact, in its initial review, DHS found almost 50 countries whose identity systems or information sharing with the U.S. needed improvement. It told them all that their citizens could be caught in an expanded and revamped travel ban.
No one wanted to end up on the new list. DHS was able to open talks, not just with the least helpful governments but with any that didn't meet the highest standards. The result was heartening. Nearly 30 countries provided document exemplars that could be used to spot fake IDs. According to testimony by Assistant Secretary Elizabeth Neumann, three countries agreed to issue more secure passports. Nearly a dozen agreed to share more information about known or suspected terrorists.
I have negotiated such information sharing agreements with other countries on behalf of DHS, and getting even one new agreement is an accomplishment. DHS's achievement here is impressive.