Jurisprudence

The Supreme Court Needs to Know the Truth About Trump’s Travel Ban

A consular officer explains how the waiver process was crafted to project an illusion of fairness.

Protesters hold signs and umbrellas in the rain outside the Supreme Court.
Protesters gather outside the Supreme Court for the No Muslim Ban Ever protest on April 25 in Washington.
Tasos Katopodis/Getty Images for MoveOn.org

Any day now, the U.S. Supreme Court will rule on the constitutionality of President Donald Trump’s travel ban. During oral arguments in Trump v. Hawaii, Solicitor General Noel Francisco argued that the ban’s waiver process—which allows deserving applicants from the affected countries to receive visas to enter the United States—should enable the ban to overcome concerns that the law is discriminatory on its face. Several justices, though, were concerned that these safeguards were mere “window dressing.”

Those justices are right. I should know. I served as a consular officer for the State Department from 2011 until March of this year. Three weeks ago, I submitted a sworn affidavit in Ahmed Alharbi et al. v. Stephen Miller et al., a case being heard in the United States District Court for the Eastern District of New York. In that affidavit, I explained that the waiver process is a superficial and wasteful bureaucratic exercise designed to hide the true intent of the travel ban: to keep an arbitrary group of Muslim travelers and immigrants from ever reaching the shores of the United States.

Trump’s intention to keep Muslims out of the country has been clear since the early days of his presidential campaign. On Dec. 7, 2015, he called for “a total and complete shutdown of Muslims entering the United States.” The president has said he would consider closing mosques and has entertained the idea of creating a Muslim database.

When the initial travel ban, with all its loopholes and chaos, was enacted in January 2017 the diplomatic corps was outraged. Hundreds of us signed a dissent memorandum against it, arguing that “such a policy runs counter to core American values of nondiscrimination, fair play, and extending a warm welcome to foreign visitors and immigrants.” After federal judges across the country blocked that first ban, the Trump administration, learning from its prior mistakes, tasked the Department of Homeland Security and Department of State—and by extension thousands of foreign service officers adjudicating visas around the world and Customs and Border Protection agents guarding ports of entry in the United States and Canada—with sanitizing the ban so it could pass court muster.

What was once strong opposition became queasy acceptance, making government workers—who seek every day to uphold their constitutional oaths to ensure every citizen’s equal and due process before the law—accomplices in the president’s discriminatory plan. For many consular officers, the decision to tolerate the latest iteration of the travel ban, instituted via executive order in September, was a better choice than quitting. Many of us thought it would be better to stay inside the system and do what we could to narrowly tailor the animus coming from the White House, hopeful that we could somehow mitigate the damage both to qualified visa applicants and to the United States as a whole.

The travel ban’s waiver process was supposed to offer consular officers an opportunity to shape how the ban was implemented. Official guidance explaining the process stated that consular officers would have discretion to issue a visa if the issuance was in the national interest, the applicant posed no national security or public safety threat to the United States, and denial of the visa would cause undue hardship. In practice, our discretion was limited. Ultimately, no consular officer, on his or her own, would be permitted to issue such a waiver without going through nondiscretionary hurdles, including supervisory review and concurrence by the State Department’s Visa Office in Washington. Those hurdles, which are necessary to obtain waiver approval, effectively limit consular discretion to grant visa waivers. Those hurdles also inevitably discourage consular officers from even trying to seek waivers in the first place.

Long before the ban, the Department of State and the U.S. government as a whole had tools at their disposal to screen applicants of all nationalities for security risks. These tools include law enforcement databases, military and intelligence databases, biometric screening, and complex, risk-based algorithms for determining when enhanced vetting is truly necessary. In addition, consular and border patrol officers are constantly trained on ever-changing risk factors in their operations.

Consular officers take their responsibility to protect America’s borders very seriously; a commonly repeated refrain during consular training is, “Every visa decision is a national security decision.” However, blindly targeting a nationality without recognizing other risk factors—among them the age, travel, and employment history of a visa applicant or visa holder—is irrational, and it doesn’t protect our borders.

It has become increasingly clear that narrowly tailoring discrimination doesn’t somehow erase the initial, original, and real animus of the Muslim ban. And as Justices Stephen Breyer and Sonia Sotomayor correctly pointed out in oral arguments in Trump v. Hawaii, only a small percentage of waivers were even granted. That’s because the waiver process is indeed window dressing to mask the true intent of Trump’s Muslim ban.

In every consular section in every embassy or consulate, American consular officers hold themselves to the highest standards of integrity. This is especially important now. To be silent now is to betray those standards. By helping this administration mold a “lesser” discriminatory policy, consular officers are, in effect, normalizing and rationalizing discrimination.