The Folks Who Picked the Stupid Seven Banned Countries Say the Muslim Ban Is Stupid

Buried in a declaration written by a bunch of former national security officials in the Washington v Trump suit opposing Trump’s Muslim ban is this passage:

Because various threat streams are constantly mutating, as government officials, we sought continually to improve that vetting, as was done in response to particular threats identified by U.S. intelligence in 2011 and 2015. Placing additional restrictions on individuals from certain countries in the visa waiver program –as has been done on occasion in the past – merely allows for more individualized vettings before individuals with particular passports are permitted to travel to the United States.

These officials, which include (among others) former Deputy CIA Director Avril Haines, former Secretary of State John Kerry, former Homeland Security Czar Lisa Monaco, and former National Security Advisor Susan Rice argue that the practice is to tweak immigration rules based on changing threat patterns rather than impose broad bans not driven by necessity and logic. They argue that additional restrictions imposed on certain immigrants in 2015 were “in response to particular threats identified by U.S. intelligence.”

That’s really interesting because the 2015 change they reference is the basis of the Trump list that excludes countries that are real threats and includes others (especially Iran) that are not. Here’s how CNN describes the genesis of the seven countries covered by Trump’s ban.

In December 2015, President Obama signed into law a measure placing limited restrictions on certain travelers who had visited Iran, Iraq, Sudan, or Syria on or after March 1, 2011. Two months later, the Obama administration added Libya, Somalia, and Yemen to the list, in what it called an effort to address “the growing threat from foreign terrorist fighters.

The restrictions specifically limited what is known as visa-waiver travel by those who had visited one of the seven countries within the specified time period. People who previously could have entered the United States without a visa were instead required to apply for one if they had traveled to one of the seven countries.

Under the law, dual citizens of visa-waiver countries and Iran, Iraq, Sudan, or Syria could no longer travel to the U.S. without a visa. Dual citizens of Libya, Somalia, and Yemen could, however, still use the visa-waiver program if they hadn’t traveled to any of the seven countries after March 2011.

Now, Haines, Kerry, Monaco, and Rice might be excused for opposing Trump’s ban on seven poorly picked countries that themselves had a hand in picking. After all, the changes derived from bills presented by Republicans, Candace Miller and Ron Johnson, which got passed as part of the Omnibus in 2015. Obama can’t be expected to veto the entire spending bill because some Republicans wanted to make life harder on some immigrants.

Except that, as far as I understand, the Obama Administration extended the restrictions from the original law, which pertained only to people from or who had traveled to Syria and Iraq, to Iran and Sudan. And then (as CNN notes) they extended it again to three other countries, Libya, Somalia, and Yemen (notably, all countries we destabilized).

So it’s partly the fault of Haines, Kerry, Monaco, and Rice that Iran, which hasn’t targeted the US in real terrorism for decades, is on the list. It’s partly the fault of Haines, Kerry, Monaco, and Rice that countries with actual ties to terrorists who have attacked inside the US — most notably Saudi Arabia and Pakistan — are not on the list.

I have no doubt that the argument presented in the declaration (which was also signed by a bunch of people who weren’t part of Obama’s second term national security team) is right: Trump’s Muslim ban is badly conceived and makes us less safe. But one reason they likely know that is because their own visa restrictions were badly conceived and did little to make us more safe.

Trump is pursuing a lot of stupid policies. But we should remain honest that they largely build on stupid policies of those who came before.

Update: Corrected that this is not an amicus, but a declaration submitted with state opposition.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

25 replies
  1. Don Bacon says:

    1. There is no “Trump’s Muslim ban,” that is fake news. The Trump EO included a ninety day visa issuance suspension to develop a uniform screening standard and procedure for individuals seeking to enter the United States from seven countries.
    2. The US has been dropping thousands of bombs and conducting other military acts of mayhem in six of the seven countries listed ( Iraq, Sudan, Syria, Libya, Somalia, and Yemen) and has directed sabotage and economic warfare, as well as “all options are on the table” threats against the seventh (Iran) for forty years. So naturally people from these countries can be considered capable of holding a grudge and seeking revenge against the US when they have been brutally attacked and suffered losses of property, displacement, injuries to themselves and deaths of people close to them. Never before has the US admitted any numbers of refugees from a country while it is under US attack. (Oddly, the country where the US has been conducting a war for fifteen years (Afghanistan) as not listed in the original Obama document nor by the Trump EO.)
    3. So one must compare travel restrictions on some to the larger problem of ill-considered voluntary wars on so many, as a part of EW’s “stupid policies of those who came before.”

    • emptywheel says:

      Given that Trump was originally stripping people of their Green Cards, it amounts to a ban. He won’t be able to pull it off, in the end.

      But even he has repeatedly referred to it as a ban.


      I obviously agree with your point about the bombings (thus my reference to our destabilization of countries named).

      • Don Bacon says:

        Evidence that Trump referred to the EO as a “ban” and that he “was originally stripping people of their Green Cards?”
        –The EO doesn’t mention Muslims, but residents of seven countries. Is some foreign order against Americans a “Christian xxx?”
        –ban: noun: an official or legal prohibition . . .The EO included a ninety day suspension of visa issuance, not a prohibition (forbidding) which implies everlasting.
        –So if Trump did say it, he was wrong in saying it (not unusual). IOW Trump saying something doesn’t make it so.
        –Therefore, fake news.

        • John Casper says:


          You wrote “…not a prohibition (forbidding) which implies everlasting.”

          Did you forget your link to POTUS saying he will lift it after 90-days?

          Do you have a link to a definition of “prohibition (forbidding)” that includes “implies everlasting” or was that “fake?”



          • Bardi says:

            Well said, John.

            I really liked Don’s excuse for Trump’s lies (not unusual).  As trust is paramount to a military relationship, I refuse to “obey” orders from a known lying commander as I then do not have the ready means to determine whether their statements/orders are lawful or not.  This pretty much should, to a reasonable soldier, require the commander step down.

            Not that Pence is much better.

  2. harpie says:

    Except that, as far as I understand, the Obama Administration extended the restrictions from the original law, which pertained only to people from or who had traveled to Syria and Iraq, to Iran and Sudan. And then (as CNN notes) they extended it again to three other countries, Libya, Somalia, and Yemen (notably, all countries we destabilized).


    I’m a little confused. This law was never about restrictions on travel for people “from” these seven countries. These people were and are required to apply for visas.

    See “Why Trump’s Selection of the Seven Countries is Not the Same as Obama’s, Rebecca Hamilton, 1/31/17

    The Act modified the requirements for nationals of 38 countries who, prior to that point, had the special privilege of being able to enter the U.S. without a visa. Under the act, nationals from any of those countries would, for the first time, need a visa to enter the U.S. if they had recently traveled to Syria and Iraq.

    Also, according to the DHS announcement you link to, the Agencies made the additions pursuant to the requirements of the law, [linked to in the piece, above], probably because they were on the list of State Sponsors of Terrorism.


    “(i) IN GENERAL.—Not later than 60 days after the date of the enactment of this paragraph, the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall determine whether the requirement under subparagraph (A) shall apply to any other country or area.

    • emptywheel says:

      The DHS thing is about discretion (as were the Sudan and Iran listings). It’s about the Administration deciding what countries to add. Only Iran, Sudan, and Syria are (or were, in late 2015 — Cuba got removed earlier that year) on the state sponsor list. You might argue Sudan and Iran got added because it’d be stupid to have Iraq and Syria excluded but not still-listed state sponsors. That doesn’t explain the others, of course. And it doesn’t change the underlying reality that Iran is not a state sponsor of terrorism except insofar as there’s a hegemonic struggle in the Middle East and state sponsors of terrorism states like KSA, which we love, are fighting it out with Iran.

      And the restriction is on people who otherwise would fall under a Visa Waiver. So it includes dual nationals (as the ban did originally) and also includes people who’ve traveled to these places.


  3. greengiant says:

    The executive order seems not to be about terrorism but ending all immigration and controlling foreign visitors.    Twist together the Trump 2020 campaign filing on Jan 20th,  the FEC law banning visitor political campaigning,  the Jan 20th Customs and Border Patrol denial of entry of Canadians who admitted traveling to the “womens’ march”,  and the border patrol and federal demands for social media account names.  Any foreigner mentioning Trump in a negative,  (or positive),  light could/will be denied entry.   They  just gave the ex minister of Norway a 40 minute wait and a 20 minute interview because he had an Iranian stamp in his passport.

    After 9-11 a Bush supporting conservative European professional was denied entry at JFK.   I am wondering if instead of a border agent’s whim,  this was a border agent going by orders that unintentionally applied both to conservatives and liberals.

  4. Kathleen says:

    What is up with the talking heads on MSNBC.  When Trump actually tells the truth about the U.S. having “killers” and not being “innocent”  Katy Tur, Andrea Mitchell and all of the rest go ape shit.

    What is up with all of the Iraq war hawks being persistently recycled on MSNBC etc as “experts”  Stephen Hadley on All in with Chris Hayes.  Bill Kristol with Katy Tur,  Joy Reid has had David Frum, Hadley etc on as experts.  Alberto Gonzales, Yoo etc etc.  Surely they could find other “so called” experts on their programs to provide more opinions about the present state of affairs.


    Last week Greta Von Sestaran (sp)  now on MSNBC was repeating that Iranian officials had said they “want to wipe Israel off the map”  Here we go again and again…

    • Don Bacon says:

      In other news, the report that the US dropped 26,171 bombs last year is wrong, there were many more bombs (and explosive rockets) that weren’t reported. To keep up, Lockheed Martin is expanding various munition factories to meet rising demand.  The US kills them there so they don’t have to kill them here, unless the US lets them in.


      • John Casper says:


        Are you allergic to links?

        How “many more bombs?”

        Is Lockheed Martin the exclusive manufacturer of U.S. bombs?

        Does Lockheed Martin manufacture “explosive rockets?”

        Who manufactures the rockets that don’t explode?

        Do you have a link that Lockheed Martin is increasing the physical size of their factories?

        Does the U.S. sell munitions to other countries?

  5. Don Bacon says:

    @EW (The reply doesn’t work for me)
    –Again, “So if Trump did say it [ban], he was wrong in saying it (not unusual). IOW Trump saying something doesn’t make it so. It’s simple English: A suspension is not a ban.
    –Regarding Green Cards, “Attorneys for travelers detained at Los Angeles International Airport over the weekend say they believe some detainees were asked to sign forms giving up their legal residency status” is nebulous. The whole point of the other link, the lawsuit, is that there was no legal basis” to remove these individuals from the United States.” Immigration was exceeding the law. (An Executive Order is law.)

    • emptywheel says:



      You believe that when Rudy says it’s a ban he was trying to spin, he’s making that up too? Everyone says it’s a ban.

    • jerryy says:

      ” (An Executive Order is law.)”

      It is not a king’s edict. Executive orders must follow certain restrictions and can be overturned by either judicial review or by Congress removing the authority they granted to the president that allows that person to issue the order. The orders cannot overturn existing Constitutional entities such as the Bill of Rights. That the orders have some force of law is more from powers explicitly granted to the president by the Constitution or by the Congress legislating some of their powers to the executive branch.

      You may this this view of the order interesting:

    • emptywheel says:

      Also, WRONGO. An EO is not law.

      I don’t even know where to begin here. The EO was violating the law that permanent residents get certain treatment. It was doing so either because CBP went rogue in the same way in different places around the country or the broad intent of the BAN was to remove people who have a legal right to be here.

      I know you badly want this not to be the case. But it was an attempted ban and did a bunch of things that violated the law.

    • John Casper says:


      Your “reply doesn’t work.”

      ew linked to POTUS’ tweet.

      “Because the ban was lifted by a judge, many very bad and dangerous people may be pouring into our country. A terrible decision”

      Why did you ignore my earlier question? “Did you forget your link to POTUS saying he will lift it after 90-days?” Without a link, per you, isn’t the “suspension” a “ban?”

      Then you wrote  “–Regarding Green Cards, ‘Attorneys for travelers detained at Los Angeles International Airport over the weekend say they believe some detainees were asked to sign forms giving up their legal residency status’ is nebulous.”

      What words in the sentence don’t you understand?

      Have you tried using a dictionary so it will be less “nebulous” for you?

      You wrote  “The whole point of the other link, the lawsuit, is that there was no legal basis to remove these individuals from the United States.”

      I haven’t read the whole link closely, but does #57 in the suit offer evidence detainees “were asked to sign forms giving up their legal residency status?”

      Since you claimed sufficiently familiarity with the suit to summarize the “whole point” of it, I eagerly anticipate a response which demonstrates familiarity with it.

      57. The government considers that Tareq and Ammar “withdrew their application for
      admission” and then voluntarily departed. That is, as a matter of fact, false. The jurisdictional bars
      of 8 U.S.C. § 1252 therefore do not apply.


  6. Don Bacon says:

    To get back to my main point, rather than the distractions, there is no “Muslim ban” in Trump’s Executive Order. There is a ninety-day suspension of visas for citizens of seven countries in which the US has been at war to various degrees, and their citizens (of course) don’t entirely approve of it. The EO does not cover the citizens in other countries with greater numbers of Muslim citizens, Indonesia, India, Pakistan etc. so again it is not a Muslim ban and calling it a Muslim ban is falsely alarmist, AKA fake news.

    • jerryy says:

      Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen

      There are no actual declarations of war against any of these countries by Congress. That AUMF? I am still trying to find ALL of these countries listed in it. Do harsh words count in your view that ‘the US has been at war to various degrees’?

      War to various degrees also covers Central and South America, Europe, amd pretty much all of the globe. It is a Muslim ban, its limitation is to countries Donald Trump does not have previous financial concerns in.

    • John Casper says:


      So your latest “main point” is that you agree that it is a “ban?”

      If it’s not a “Muslim ban,” what kind of a ban is it?

      Why didn’t POTUS ban any countries who don’t have a majority of Muslims?
      Iraq 95%
      Iran 95%
      Syria 74%
      Yemen 99%
      Somalia 99%
      Sudan 97%
      Libya 97%

      Do you expect POTUS to suspend the ban in 90-days?
      Do you expect POTUS to ban countries who don’t have a majority Muslim population?

      You mentioned India. Only 14% of its population is Muslim. If Trump added India, it would be tougher to call it a “Muslim ban.”

      You mentioned “various degrees” of war. What are those?

    • Katie Jensen (Peacerme) says:

      According to Eric Schneiderman, one of the AG’s suing in regard to ban, yesterday, on Joe Schmoo and Mika B, the ban includes an expansion to other countries who do not maintain required data bases on citizens. If I heard him right, he referred to plans to expand the ban after 90 days. No clue if it’s true, but here’s the clip if you didn’t see it. Maybe I misunderstood what he was saying….but it made me want to ask more questions about how the ban is written.

  7. lefty665 says:

    “Trump is pursuing a lot of stupid policies. But we should remain honest that they largely build on stupid policies of those who came before.”

    Thank you EW, that says it wonderfully. I am afraid that there will be much more umbrage to come as the Trumpies continue to pick up on Obama era expansions of executive authority and offensive legislation. There wasn’t much opposition from Dems at the time.

    When it occurs, the eruption over domestic military action and detention of civilians repeatedly enacted and signed into law in Obama era NDAAs will be profound, from people still able to get to their keyboards. I expect a lot of folks will discover they have a great, previously unsuspected, love for president Rutherford B. Hayes and Posse Comitatus.

    Thanks for keeping a weather eye peeled. Trump sucks, but he seems to prefer standing on Obama’s shoulders. Outrageous acts are seldom invented from whole cloth.


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