Criminal Justice & the Rule of Law

The Hidden Cost of Undoing the Travel Ban

Stewart Baker
Thursday, February 4, 2021, 1:55 PM

The final iteration of the travel ban reflected data-driven assessments by the Department of Homeland Security, which worked to encourage deeper cooperation from other governments. 

The international arrivals check-in hall at LAX. (Tim Bray,; CC By-SA 3.0,

Published by The Lawfare Institute
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The first few weeks of a new administration are a heady time to be in the White House. Almost by definition, it is the home of the best political minds in the country, the ones that won a prize that all the others coveted.

In these golden weeks, everything seems possible. It isn’t.

For evidence, one need look no further than President Obama’s inauguration-week order declaring that Guantanamo would be closed “no later than one year from the date of this order.” The order was well received for a month or two, but it became a long-term disaster for Obama, who could not deliver on his promise despite two full terms as president. Indeed, the country is now on its third president since the order, and Guantanamo still isn’t closed.

It could happen again. In fact, the Biden administration may have already produced its own version: the executive order revoking every iteration of President Trump’s 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 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 Homeland Security’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 whom to admit. But that data-driven strategy works only 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. Homeland Security 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. Homeland Security 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, Homeland Security’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, Homeland Security 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. Homeland Security 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 the Department of Homeland Security, and getting even one new agreement is an accomplishment. The department’s achievement here is impressive.

In the first Homeland Security-influenced proclamation, the list of countries whose travelers were restricted by the order was whittled down to seven. The result can no longer be called a Muslim ban. Three of the seven, Venezuela, North Korea, and Chad, were outside the Middle East. Of those, only Chad has a large Muslim population, about 52 percent by one count, and it was a close case.

Indeed, the story of Chad’s brief inclusion on the list shows just how committed Homeland Security was to using objective measures of border security to determine which countries went on the list. When the department first floated the idea of including Chad, the departments of State and Defense tried to get Chad off the list by pointing to the country’s military contributions to counterterrorism campaigns in Central Africa. But Homeland Security insisted that Chad must also meet its standards for border security cooperation. The president backed the department. And after initial resistance, Chad quickly complied, showing “marked improvements in its identity-management and information-sharing practices.” The U.S. then issued a second proclamation in April 2018 that took Chad off the list.

Not only was the list of affected countries tailored to the border security risk, so were the measures applied to each country. North Koreans and Syrians, for example, were denied entry on any basis, while the Venezuelan ban fell on the source of the problem—government officials. In a third proclamation issued in January 2020, Homeland Security identified six more countries for travel restrictions, ranging from Burma and Eritrea to Nigeria and Kyrgyzstan.

In short, by the time Trump left office, the travel ban did not single out majority-Muslim countries for special treatment; it relied on objective measures of how much each country on the list helps the U.S. in screening that country’s travelers. Homeland Security stuck to those standards despite heavy pressure from other agencies, and it achieved significant improvements in its ability to screen travelers from abroad. The existence of the ban and the objective measures of cooperation also fostered a diplomatic process that would continue to incentivize counterterrorism and cross-border cooperation with the United States.

Biden’s revocation of Trump’s order undoes all that.

The visa window is open again, no matter how little information U.S. officials have about the applicants. To take the most troubling example, Syrian, Iranian and Libyan nationals will once again be eligible for the green card lottery program, in which foreign nationals with a high school degree are given a chance to immigrate to the U.S. if their application is randomly chosen. For these applicants, there may be no family and no employer to vouch for the lucky winner, and their governments will give the U.S. no help. Much of Libya and parts of Syria are outside the control of their respective governments, and Syria and Iran, deeply hostile to the U.S., are not inclined to share the information they do have.

Terrorists have come to this country through the green card lottery in the past. Sayfullo Saipov, who used a truck to kill eight people on a New York City bike lane in 2017, entered the country on a lottery visa. Setting aside the very real questions that could be raised about the program as a whole, issuing lottery visas in countries where the U.S. cannot do serious vetting is crazy. But that is the outcome that the Biden revocation order embraces.

The Biden order does call on the Department of Homeland Security and the director of national intelligence to review and strengthen screening procedures. Perhaps that will become a path to reinstating a bit of the Trump ban in some quiet walk-back. But there is little reason to think that the leverage painstakingly assembled under the Trump order can be regained, and the Biden administration may not even try. If anything, the Biden order hints that maybe less information about travelers would be a good thing, asking the Department of Homeland Security and the director of national intelligence to justify the current practice of asking travelers for their social media identities.

As a matter of policy, then, Biden’s revocation of the travel ban has little or no redeeming value. As a matter of politics, it may fare better, at least among Democrats, since it replays the charges of racism that galvanized the 2020 campaign.

But the lesson of the Guantanamo order is that it’s risky to govern based on slogans that worked in the last campaign. In the long run, the tension between policy and politics resolves, and bad policy usually turns out to be bad politics, especially when it comes to counterterrorism.

If revoking the Trump travel ban opens U.S. borders to dangerous individuals, as it now seems to, the Biden administration and the country could pay a high price to learn that lesson again.

Stewart A. Baker is a partner in the Washington office of Steptoe & Johnson LLP. He returned to the firm following 3½ years at the Department of Homeland Security as its first Assistant Secretary for Policy. He earlier served as general counsel of the National Security Agency.

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