The Ninth Circuit Court of Appeals on Thursday upheld a lower court decision halting the Trump administration’s three-week-old executive order barring refugees and citizens of seven Muslim-majority nations from entering the United States. (The president responded to the decision with a tweet suggesting the Justice Department would appeal the decision. "SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!" he wrote.) The controversial travel ban, which sparked immediate protests at airports nationwide, has been widely reported to be the work of White House aide Stephen Miller and chief strategist Steve Bannon.
Shortly before the decision was announced Thursday, Miller defended the executive order, which he denies writing himself, in an interview with Rolling Stone. Miller answered criticism of the countries selected for inclusion, spoke about the need to keep out of the country people who don't "share our values," and confirmed that the Department of Homeland Security is exploring the possibility of requiring travelers to provide their social media accounts when they enter the U.S.
On Friday morning Joe Scarborough announced on his MSNBC show that he had "heard from several sources that the White House is right now working on redrafting an executive order." (Miller did not respond to an email Friday seeking to confirm Scarborough's report.)
The prevailing impression is that you and Steve Bannon were the architects of this executive order. Is that accurate?
No, that is not, and I'm actually glad to have the opportunity to walk you through the process. While I was on the campaign and not on the transition, the process began of drafting some of the executive orders responsive to the president's campaign promises, obviously of which the national security executive order was a prominently featured one. So by the time I got to the transition myself, after the campaign, we inherited a work-product on multiple fronts – some of the different executive orders you've already seen, that were fairly far along. Our policy team that worked on those EOs before and then after my arrival consisted largely but not exclusively of career lawyers and immigration experts on Capitol Hill.
When you say career lawyers – who are the lawyers?
Like I said, we're talking about career attorneys and immigration experts on Capitol Hill.
From Congressional offices and committees?
Right. Yes. So this then went into the same review process as all the other executive orders. My role, as the senior advisor for policy, was to simply help manage and streamline the process through which the executive orders in general during this time would be finalized: making sure the experts briefed the department heads or the relevant staff, make sure the senior staff was briefed and then ultimately, when we got into the administration, then working with the National Security Council and the Homeland Security Council. So the final order had been signed off on by the National Security Council and the Homeland Security Council, the Department of Justice's Office of Legal Council, all relevant staff and senior officials in the White House, and the folks at the relevant departments were read-in, particularly at Homeland Security. That was pretty much the process.
How much time did the Office of Legal Counsel and the Department of Homeland Security and these other offices have to review it before it was signed and put into place?
The staff secretary is the one ... that would be in a better position to answer, because they manage the review process with the Office of Legal Counsel. But the Office of Legal Counsel has to give an approval that something is facially legal before it moves. They either do or they don't. You can't make them work any faster than they're going to work to get to that determination. If they don't concur, and you still issue the action, then they're actually required to make a note that they didn't concur.
There were reports that [Homeland Security head] General [John] Kelly was being briefed on the order as the president was signing it. Do you dispute those reports?
Yes, I do, as does General Kelly. General Kelly was – as he himself said at the press conference – he was briefed several times in advance. Fundamentally, as he noted, Secretary Kelly was aware, as was everybody in the country, because this issue was on the ballot in November, that extreme-vetting directives were going to be a priority. This issue was put before the American people. But this specific executive order that was drafted, he would've reviewed – or he did review, and was briefed on, on several occasions, and was given a copy for his personal review that was virtually identical to the version that was issued.
You bring up the fact that this was a campaign promise for President Trump. San Bernardino was the original impetus for the declaration that the executive order came from. My question is: Why does the order refer to September 11th? And if this was a problem that allowed September 11th to happen, why doesn't [the EO] cover countries where the 9/11 hijackers came from?
I want to answer all of the elements of that question, but first I do need to offer important clarification, which is that this executive order has no connection to the comment that you're referring to after San Bernardino.
Calling for a shutdown of all Muslims entering the country.
Right. There is no religious exclusion, test or establishment of any kind, shape or form whatsoever.
But I do want to address your question with respect to the role of past terrorist attacks in shaping our understanding of the security picture, as well as why 9/11 is in the policy statement in the executive order. I did not draft that section, but I'm certainly familiar with the thought process that went into it. One of the major conclusions of the 9/11 Commission is that there were enormous security vulnerabilities in our immigration system.
9/11, in that sense, really begins the effort of our country to try to shore up our immigration system to deal with this very complex and very far-reaching threat. It is for that reason the proper starting point to look at what we've fixed and what we haven't fixed. And the list of what we haven't fixed is enormously long.
Also, 9/11 of course was the greatest terror attack – the deadliest terror attack in American history, and all the hijackers, you mentioned, were foreign nationals here on visas. So it provides a very necessary and logical starting point by looking at what we have and haven't done, and unfortunately the list of things that we haven't done is very, very long. Now, you mentioned the issue of what countries people come from and how decisions were made on what countries to include and what countries not to include.
Right – can you explain the logic behind choosing these seven countries? Because the 9/11 hijackers obviously came from countries that aren't on this list.
Right, so this executive order, it does several primary things. It suspends most travel of foreign nationals from seven countries in the United States for 90 days, and it suspends most refugee admissions for 120 days. During that time period, the following happens: On the refugee side, new vetting mechanisms are developed for how we let refugees into the country, and those will be applied across the board.
[As for] the process for the entry restrictions with seven countries: it's a 30-day period for Homeland Security, DNI and State to promulgate new vetting procedures that countries will be asked to comply with based upon the circumstances and conditions in those countries. They'll have 60 days to meet those requirements. That's where you get the 90-period from.
When [the Trump administration] came in, we came into a situation where one undeniable fact was that we lack the proper vetting procedures to control the admission of individuals who pose a threat to the security of the United States. We knew this, and we know this, from the mere fact that there are hundreds of examples of individuals since 9/11 entering the country and then subsequently being implicated in or convicted of terrorism. So as a starting point for determining how to get to where we need to get from a security standpoint, we inherit the security assessment from the Obama administration and from Congress, who in 2015 and 2016 said that these seven countries are countries of particular concern. Four countries in the initial legislation, and then three countries added by the Obama administration, to get the seven named countries. That security determination from the Obama administration, who imposed the first travel restrictions on those seven countries, was based on their belief about where future immigration concerns would likely emanate.
[Ed. note: A Washington Post fact-check confirms that the list of countries did originate with the Obama administration and Congress but that, "[w]hen given a chance, the Obama administration specifically rejected the citizenship-based restrictions that Trump has now ordered. So while the names are the same, the approach is the polar opposite."]
Arguments about where terrorists entered from the past [don't] really speak to the thought process that went into these decisions, which is: where are the concerns in the future? To take the example of Libya and Syria and Yemen – Libya, Syria and Yemen are obviously countries that today present a very different threat picture than, say, they did in 2002. So the central thing to understand is this is a determination about what countries are of particular concern right now and moving forward. What defines the particular concern is the following: the ability of that country to cooperate with us on security programs, or their willingness to.
So in the case of a country like Libya or Syria, there's a real inability, just because of conditions in those countries, to be able to provide that cooperation. In the case of countries like Iran, obviously there's enormous diplomatic hurdles to providing that kind of cooperation. So that puts our immigration case workers in the dark about who we're admitting and who we're not admitting, and so the hope would be that during that 90-day period, we'd be able to get a better sense of what kinds of procedures and interview processes and vetting and background checks we would need to be able to have safe migration from those countries, or from any other countries that might present concerns.
Is there an effort underway right now to determine what those new procedures and processes will be? Because we haven't seen any signs yet that anything is being done on that front.
That's a great question. That is actively underway right now, the development of the new extreme vetting procedures.
Let me walk you through a couple different scenarios. Right now there are a lot of questions that aren't being asked of applicants that ought to and should be asked that would better elucidate their intentions upon coming here, their likelihood of becoming involved in extreme or radical activities. Those questions aren't even really asked right now, and certainly not in any great depth.
Just by asking the questions and getting them under oath, and having them sign the forms, and then come into the country and engage in behavior contrary to what they've represented, then [they] becomes removable. So you're providing a lot of enforcement tools on the front end and on the back end. The case of Tashfeen Malik provides a good example of where a more thorough and critical vet would have presumably produced a number of red flags that could have saved a number of lives.
And I want to note that the long-term goal here, as the president himself has said repeatedly, is: There's seven billion people in the world, we have the most generous immigration system in the world, in making determinations about who gets these highly coveted slots for permanent admissions, we should seek to admit people who will be able to embrace the open and tolerant values of U.S. society. In the long term, that's where we'd like to get.
Well, first, you'd have to have a debate about what those values actually are. [The executive order specifically targets "those who would oppress Americans of any race, gender, or sexual orientation."] There are groups in America that are hostile to gays, oppressive to women – the Westboro Baptist Church opposes same-sex relationships, some sects of Orthodox Judaism have dress codes for women, require them to cover their hair, be submissive to men, etc. This sounds like you're getting close to an ideological test. Is that what the administration is suggesting?
No. But I want to address a couple of the premises of the question. What the executive order says – and this is not an exact quote – is that [the administration] does not want to admit people who would oppress individuals of different lifestyles or engage in acts of hostility or violence. That's very different from having different positions on political issues or social issues. We're talking about denying entry to individuals who would engage in violent or repressive subjugation, and who would not share America's tolerant values. People can disagree and have different views, but they're not going to support violent suppression or subjugation. I think overwhelmingly Americans would agree that if you're going to come into our country, you have to accept the fact that people are allowed to practice different faiths and lifestyles, without fear of violence, without fear of being literally oppressed or subjugated. I don't think that's something any reasonable person would disagree with.
What kinds of questions would be asked in this vetting process?
One thing that has been discussed [at the State Department, Department of Homeland Security and by the Director of National Intelligence where these conversations are happening] – and I'm not in a position now to be able to articulate the details of how, or in what fashion it would be done – but obviously what has been discussed is where a social-media review fits into that process. I can't elaborate on that, because I don't have enough information right now on how that's being approached to provide that elaboration, [but] that provides one example. And we obviously know that terrorist groups have become very reliant on social media. And obviously an individual posts something online that says they'd like to slaughter group X, then that would be something that would be a cause for substantial concern.
In terms of the questions, this is a process that's happening independently of me, but I presume they'd ask questions about whether, you know, it's appropriate to engage in violence against people of different faiths. I think that would be the kind of question that we'll be getting at. Or, is it appropriate to practice violence against people who have a different interpretation of the same faith – or violence against people who live a different lifestyle?
But there's a separate part of this, which is the kind of work that, domestically, the FBI does in a criminal investigation, which involves asking kinds of questions that are not about beliefs, but where you've been, where you've traveled, who you've met with, how often you've traveled there, what you did when you traveled there – these are the kinds of questions that would help present a fact pattern that, again, could be cross-referenced with existing databases and information to tell if someone's being honest or truthful, or if they're hiding something, and if they are hiding something, if it's something of concern. There's a whole other element of this, which is the same kinds of techniques people use doing any kind of investigation, where – just a lot of questions about past activities, financial activities, travel activities that present a more complete picture.
And that's where there's concern with respect to these seven countries – about the ability of, say, a country like Libya being able to provide that kind of information. We know that ISIS desires operationally to use the Syrian refugee program to infiltrate countries, to use migrant flows as a way to gain an operational foothold in other countries. And we've obviously seen that already happen – we've seen the tragedies in France. So we as a country need to realize that, just like before 9/11, we need to act decisively before the worst possible outcome occurs. We've seen the horror and devastation that can be inflicted when one individual with evil intentions acts on them. Just imagine what could happen if large numbers of radicalized individuals with extremist views were able to infiltrate our immigration system, and how much damage they could do, whether it be attacks with knives, guns, explosives, cars, trucks – the bloodshed could be quite substantial.
And more broadly, we as a country have to figure out how to avoid the very real problem of having long-term, multi-generational terrorism inside the United States. We don't want that to become a permanent feature of American life, in which there are large hotbeds of radicalization all around the country.
When you say "multi-generation," you're talking now about first-generation U.S. citizens...
What I'm saying is the decisions you make on the front end affect the things that happen later. Imagine two scenarios: Scenario one: You admit an individual into the country with all his extremist views. That person then indoctrinates two other, three people in the country into those views, and then into the next generation. You now have a serious threat picture that you have to deal with, and it involves enormous expense of time, energy and money by the FBI and other investigators to solve a completely self-inflicted wound. The other scenario, where the proper screening occurs on the front end – the rest of that [first] scenario never happens. Taxpayers will save millions of dollars, the threat never emerges, the next-generation problem never occurs and everybody's better off for it.
I want to go back to the first scenario that you're referring to, when you're saying that people are already in the country, or they grew up here and they were radicalized here. Once you're talking about U.S. citizens, how would the administration even begin to address something like that?
I'm talking about future events, things that have not already happened. What I'm saying is that from this moment forward, there are two paths: Path one, which is responsible immigration control, proper checks and extreme vetting – our immigration system becomes a conduit for enhancing the security and wellbeing of the United States, and increasing pluralism and tolerance in the United States. Path two, which is poor screening, insufficient controls and a lack of vetting, means not just terrorism today, but it means that terrorism is spreading into the next generation. I'm talking about things that haven't yet unfolded, but whose happening we can prevent if we take decisive action now.
But we're already in scenario one, right? Since September 11th, the vast majority of terrorist attacks in the United States have been perpetrated by U.S. citizens or by people who had green cards or valid visas – people this ban wouldn't apply to. My question is, if that really is the threat, what's the administration going to do about that? Are there plans to roll out some kind of vetting for U.S. citizens?
No. Just to break down the question: you're correct that past poor decisions have created a serious problem. I won't get into specific examples, but there have absolutely been examples where individuals who were admitted who espoused radical views were not themselves terrorists, but their children ended up becoming terrorists, and one could conclude reasonably that the extremism of their parents had a profound effect on the children. And that is a problem that was created by past poor decisions. The issues you mentioned of individuals with green cards committing terrorism is indeed a profound one. The Boston bombers had legal permanent residency, and [one] brother was approved for citizenship and naturalized. Many people paid in life and limb for the poor decisions that were made with respect to the handling of their immigration cases.
That gets at the crux of a lot of people's question, which is: Why does this executive order refer to these seven countries, and not countries where people who have committed terrorism actually came from?
I already answered that, but I want to finish my thought. You're correct in saying that we have already admitted individuals, and even given green cards to, and even naturalized individuals who subsequently became involved in terrorism, whether it be the Chattanooga shooter or Tashfeen Malik in San Bernardino or the Boston bombers, or the many cases that have occurred, like the problem I mentioned earlier of radicalization with Somali refugees – and fortunately in those [Somali refugee] cases, action was taken before any bloodshed. [Ed. note: These Somali refugees were planning to join ISIS in Syria; they were not known to be plotting attacks in the United States.] There's been, by our count, around 500 cases of foreign nationals since 9/11 who have been implicated or convicted of terrorism, and that doesn't include the larger number of individuals who would have absconded and left the country, and never been identified.
I was curious where that number comes from. I've seen that data point that says that there have been nearly 400…
Actually, it's well over 400.
It came from the New America Foundation, and it said that there had been nearly 400 cases [involving people charged with jihadist terrorism or related activities], but it has shown that all of them were carried out by a U.S. citizen or legal resident, and these are people not covered by the executive order.
Again, we're conflating different subjects. I'm answering your question first, which is: What do you do with all the past mistakes that have been made? And I agree with you. You're proving my point. We've admitted enormous numbers of individuals who've been implicated in terrorism, yet they've been granted green cards, been granted citizenship, who never should have been admitted in the first place. There was a case of a refugee in Idaho convicted in a bomb plot. These are serious, profound problems. First of all, if you're here in the United States today, with some kind of immigration status, and you're involved in terrorism, obviously your status would be subject to revocation – you'd be subject to removal. If you're here on a green card and you try to blow up a public building, that's obviously a removable offense. There was a case during the Obama administration where an individual was linked to [Osama] bin Laden – he was in Portland – and the Obama administration sought the denaturalization procedure.
But that's a whole separate question you're raising about the radicalization problem that exists already inside the United States. I'm saying to you that based on those past failures, we're having to put in place procedures to protect against these incidents from occurring again in the future. The executive order made a determination about seven countries for restriction, based upon the determination that had already been made, that we inherited from the Obama administration and Congress.
In 90 days, new determinations about what restrictions should and should not be put in place, and what limitations should and should not occur, will be based upon a new, 90-day review that occurs comprehensively. The goal is to have extreme vetting across the board – for anyone who applies for entry into the United States [for there to be] appropriate safeguards in place, particularly for those seeking permanent residency. But again, those seven countries [in the executive order] are based upon concerns about their ability or willingness to cooperate right now, here and today, at this moment in time, with our intelligence agencies and our immigration agencies.
But I just want to say to readers and everyone else that immigration, properly done, is a benefit to America. It must be done properly. The purpose of immigration, the purposes of the immigration system, is to benefit the people living here today. Additionally, smart immigration decisions and proper controls will ensure those who arrive tomorrow arrive into a country that can offer all the security and blessings and prosperity that we would like to enjoy, and help ensure that those future arrivals arrive in a manner and as part of a system where they can achieve their middle-class dream.
But you can't accomplish those goals without proper controls. Proper controls ensure security, they ensure wage growth, they prevent the exploitation of labor by large corporations. Proper controls on immigration are necessary from an economic standpoint and a security standpoint. They are reasonable, they're just and they come from a place of compassion and decency. That's what I'd like to leave you and everyone reading your publication with, and I hope I've done at least a reasonable job answering that.
I do have a few other questions: ISIS is reportedly calling this the "blessed ban" because they see it as their own doing. They feel like they've succeeded in scaring America so badly that it would resort to something like this. And they're celebrating because they think it proves that the U.S. hates Muslims. Are you worried about the executive order – how it's being perceived overseas and whether it's going to make us less safe?
ISIS are merchants of death, and our administration is committed to defeating and destroying ISIS. And as I think we all know, ISIS propaganda is nothing but lies, hate, deceit and evil. What other questions do you have?
What do you say to people who say that this is hurting the people who are helping us overseas the most?
What I say to them is that, first of all – I'll give one answer to that question, because time is short – with the cost of resettling one refugee in the United States, we could help 12 in their home region.
But when their home region is, for instance, Syria...
You can ask the question on your terms – I can answer it on mine. Compassion should be measured by results. Our refugee programs haven't delivered the promised results. The goal of refugee resettlement, properly done, should be to create conditions in the home countries where displaced and dislocated persons can safely return, resettle their home regions.
But with respect to people who have assisted the military, who have put their lives in danger, made enemies in their home countries…
Right, so, we've already – the guidelines have already been issued that the executive order, both when it was in effect and when it will ultimately return to effect when the court proceedings are concluded, those translators and others are considered waived under the national-interest exemption.
I understand that there's the Iraqi special immigrant visa for people who served in the Army – the figures I saw said that applies to about 500 people – and then there are [tens of thousands of] other people who helped, who assisted the military, were translators and things like that, whose status is through the refugee resettlement program. What happens to those people? They don't have the exemption, but they did the same work.
The executive order allows the departments of State and Homeland Security to make any case-by-case exemption it wishes that are in the national interest, and that national-interest exemption will be applied, and it will be applied properly and thoughtfully, with compassion and with proper security review.
But I just want to conclude my prior point, which is that our refugee program hasn't had the desired results. I mean, look at the situation in Syria – the solution in Syria must be a settlement of the problems in Syria. The humanitarian disaster there is on a scale that defies human imagination. We need to achieve a situation in Syria where hopefully someday the dislocated Syrian people will be able to return to their home country and provide a middle class for that country.
But more broadly, across the board, it's in the interest of the United States, and it's in the interest of sending countries that those countries can ultimately support their own middle classes. With the money we've spent on the refugee resettlement program, we can help enormously more people. We're still going to [accept refugees] – and the president set a ceiling of 50,000 for this year in his executive order – but my point is that our dollar stretches further when we help people with in-country or near-country resettlement. Because once you come to the United States, you're eligible for Medicaid, food stamps, TANF, SSI, housing benefits, etc., and those dollars would stretch further near their home region. So from a compassion standpoint, proper controls on refugees actually free up federal resources to help a larger number of people.
This interview has been lightly edited for length and clarity.