The latest Executive Order from DT, banning Syrian refugees and putting a 90 day hold on Iraqi nationals who want to enter the US has, at least on the surface, put us on a new playing field it seems. I tried to find the list of the other 5 countries that the press, from the NYT to CNN, has insisted is on the list of banned countries. There is nothing in the executive order about it, although there are references to earlier segments of US law that appear to list those countries. According to CNN, an earlier draft of the order (why can’t we have access to that??) listed the seven countries to which this EO applies. But I see no other confirmation, apart from the media parroting each other.
Here’s the upshot as far as I can tell: those five countries were listed on an original list of exceptions to Visa waivers, passed in December 2015 as part of an Omnibus Appropriations Act of 2016 (h/t to Emory Law School professor Deborah Dinner for helping me figure where to look, and for pointing me to Seth Frantzman’s site for some leads). I don’t agree with Frantzman’s conclusions, but still his efforts to find where the assumed countries are listed are commendable.
Frantzman points us to an announcement from the DHS website, wherein in they list 3 more countries to the list of 3 others already on the list to be exempted from the Visa Waiver Travel program, i.e., travelers from this list will not be eligible for visa waiver exemptions). The six countries are as follows: Libya, Somalia, Yemen, Iran, Iraq, Sudan, and Syria (already mentioned in DT’s EO).
You will notice that these are seven countries listed under a Travel Visa Waiver restriction that was passed in December 2015, announced in February 2016, that is, under the Obama Administration. Trump’s EO in effect develops further the policy enacted under Obama’s DHS, namely suspending visa issuances to those foreign nationals. To be sure, The Obama policy was narrower than the Trump EO, But let’s also be clear: these were countries of concern under the Obama Administration’s watch.
Trump’s EO suspends the Visa Waiver altogether, requiring in-person interviews for all persons seeking non-immigrant visas.
It is also the case that Trump’s EO is much more sweeping than the DHS restrictions, in that it seeks to suspend the entry of all refugees for 120 days, pending further scrutiny, and suspends the entry of all Syrian refugees until further notice (which is not the same as forever, but perhaps that’s a distinction without a difference).
Trump’s is a rather cleverly crafted EO, in that there is no explicit reference to all Muslims, but rather to “Islamic terrorists” (which we can certainly read as an “existential threat,” to paraphrase Judge Bruce Selya in his 2013 opinion on the Tarek Mehanna case. And we know that “terrorist” is a salient and legally acceptable category in a way that “banning all Muslims” is not. So, I suspect that this EO will-through conventionally narrow legal readings—be upheld as constitutional.
But all that is neither here nor there. I think there is another point here which is extremely salient: This is a politics of distraction and chaos in to which we would do well not to cave. Remember that this EO was effective in stopping exactly 109 travelers in the first 24 hours of the EO taking effect. 109 of 325,000 foreign nationals who fly into the US in a 24 hour period. Of course, this doesn’t include the number of travelers who were turned back in international airports, who are stranded elsewhere. But I worry that the Trump Administration in delivering these splashy—incredibly incompetent, ill-planned, insufficiently vetted EO’s–is leading us around like trained seals. They know we’re protesting, they’re expecting it, and it expends our energy while other less visible chaos is being wrought. In that sense, (and I did join the protests yesterday), I’m reminded of Walter Benjamin’s comments about the aestheticization of politics in his 1936 essay, “The Work of Art in the Age of Mechanical Reproduction.”
Fascism attempts to organize the newly created proletarian masses without affecting the property structure which the masses strive to eliminate. Fascism sees its salvation in giving these masses not their right, but instead a chance to express themselves. The masses have a right to change property relations; Fascism seeks to give them an expression while preserving property. The logical result of Fascism is the introduction of aesthetics into political life.
Agreed, we are not proletarian masses, and I hestitate to use the term “Fascism,” because it is overused. But I’m struck by his point that property is preserved while political expression is exercised. I’m also reminded of Hannah Arendt’s point about how the success of authoritarian regimes depends upon throwing us into confusion and chaos, while other devastating acts are undertaken under “dark of night,” as it were (my phrase).
This is not to say that there isn’t important reason to be on record as dissenting. This is not to say that there is no cause for concern—but Trump/Bannon et al are continuing a certain politics of distraction that has been in effect for a long time, including under the Clinton, Bush, and Obama Administrations—namely getting us to focus on a certain social politics of antagonism and hate, while they enact other deeply destructive economic policies: NAFTA, the repeal of Glass-Steagall (leading eventually to the massive mortgage foreclosure crisis), financial treats for pals in the investment banking industry, the loss of pensions, bailing out the banks, cowtowing to the health insurance industry, etc.
We know that Trump has put Steve Bannon, clown and white supremacist extraordinaire (excuse me, his “Chief of Staff” on the NSC), along with the NSC Executive Secretary, while removing the Director of National Intelligence and the Chairman of the Joint Chiefs from permanent status. This is a WTF moment. Responses from the Trump administration responded that they didn’t want to waste the DNI’s or Chairman’s time. I repeat: WTF?
We also know that over the weekend, Trump launched a barely-noticed drone strike in Yemen that killed the the 8 year old daughter—and the second, US citizen, child– of suspected terrorist and US citizen Anwar Al-Awlaki’s children (the first, American 16 year old Abdulrahman having been killed during an Obama Administration drone strike). You can read all about the heinousness of the Obama Admin’s actions at the previous link.
The big question for me here is: what else are these bozos up to? What are they trying to pass under the radar while keeping our noses focused on this superficial “Clash of Civilizations” approach to foreign policy and immigration/visa policies? What kind of economic destruction are they playing into? Funnily enough, even Benjamin Wittes, on his Lawfare blog (with whom I agree about almost nothing), also thinks there’s something else going on besides “national security concerns”.
Something to consider while we’re being distracted and thrown into chaos.
Translation Exercises 
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