Legalizing Othering

Islamophobia in the Era of Trump

Islamophobia in the Era of Trump

FROM THE FIRST DAY IN OFFICE and under the pretext of keeping his election campaign promises, President Trump has put force behind his campaign rhetoric of “calling for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what the hell is going on.”103

This section provides an overview of two key executive orders, and a Laptop Ban measure issued by President Trump in 2017 that have targeted and discriminated against Muslim communities. 

Muslim Ban 1.0

Islamophobia has manifested in a policing regime that engages in the profiling, surveillance, torturing, and detention of people along racial and religious lines, and has allowed for the militarization of local police departments, as well as an unprecedented expansion and implementation of security measures. The “clash of civilizations” narrative fathered by Bernard Lewis and proliferated by Samuel Huntington is not only relevant and influential today, but serves as a political and ideological backbone for anti-Muslim rhetoric and demagoguery in the Trump administration.104 What began as outlandish, unconstitutional and almost unfathomable proposals in Trump’s campaign statements calling for a Muslim registry, and banning all Muslims from entering the United States, have since become actual policy goals that are being worked towards,105 as evidenced by Trump’s Executive Order 13769106 and Executive Order 13780,107 commonly known as the Muslim Ban 1.0 and 2.0.

The stated objective of the first EO (No. 13769, FR 8977), issued by Trump on January 27, 2017 titled “Protecting The Nation From Foreign Terrorist Entry Into The United States,”108 is to prevent terrorism. It focuses on the regulation of immigration as a means of curbing terrorism, mainly through the modification of processes related to the admission of noncitizens and visa issuance.

The EO mentioned that visa issuance plays a crucial role in detecting individuals with terrorist ties and cites September 11, 2001, adducing that at the time of the attacks, State Department policy prevented consular officers from properly scrutinizing the visa applications of several of the foreigners who perpetrated the attacks.109 Additionally, the Order mentioned an intent to reduce bigoted practices like “honor killings” and gender violence through the denial of admission to those who engage in such acts of bigotry and hatred.110 The order temporarily suspended entry of foreigners from seven Muslim-majority countries: Iraq, Syria, Sudan, Iran, Somalia, Libya, and Yemen.111 Additionally, the EO temporarily suspended USRAP (the US Refugee Program),112 capped the entry of refugees at 50,000 for the 2017 fiscal year,113 indefinitely suspended the entry of Syrian refugees,114 and called for the prioritization of claims of religious persecution in asylum cases if the person is a religious minority in their home country.115 The EO announced the implementation of new screening practices116 and suspended visa interview waiver programs, requiring in-person interviews for all visa petitioners.117 It also called for the revision of all visa reciprocity programs to ensure they are actually reciprocal.118 Lastly, the EO called for the publication of negative information about immigrants. Specifically, it required the Secretary of DHS and the Secretary of State to make public information on foreign nationals that are charged with terrorism-related offenses or removed for terrorism-related offenses,119 radicalized after entering the US,120 who commit gender-based violence or honor killings,121 or charged with other major offenses.122

Several lawsuits against President Trump and the DHS were initiated in federal court. The plaintiffs argued that the EO was based on animus towards Muslims and violated domestic and international law, including the Constitution, the Administrative Procedure Act (APA) and the principle of non-refoulement, which establishes that states cannot return asylum seekers to a country where they will likely be harmed.123 Several federal courts, including the US District Court for the Eastern District Of Virginia,124 the US District Court of Massachusetts,125 the US District Court for the Eastern District of New York126 and the US District Court For The District Of Hawai‘i,127 issued temporary restraining orders based on a likelihood of success of the cases on their merits. The Trump administration challenged the District Courts’ decisions but the Ninth Circuit upheld the temporary restraining orders in a unanimous decision.128

Interview Excerpt: Evelyn Nakano Glenn on connections between the nineteenth and twentieth century anti-Asian movement and contemporary Islamophobia

EVELYN NAKANO GLENN IS A PROFESSOR OF THE GRADUATE SCHOOL, ETHNIC STUDIES AND GENDER AND WOMEN’S STUDIES, UNIVERSITY OF CALIFORNIA, BERKELEY. SEE OUR FULL INTERVIEW WITH NAKANO GLENN AT HAASINSTITUTE.BERKELEY.EDU/ISLAMOPHOBIA

Perhaps the closest historical parallel to contemporary Islamophobia is the anti-Asian movement of the late-19th and early-20th centuries. During the 19th century, whites viewed Chinese immigrants as “the other” - perpetual foreigners incapable of assimilating into American society. Chinese immigrants were portrayed by hate mongers as threats to white labor and as bearers of disease and immorality. They were targeted by mob violence and driven out of many Western cities and towns. The anti-Chinese movement finally triumphed in 1882, when the US Congress passed the Chinese Exclusion Act, the first US law to bar entry to the US on the basis of race or country of origin. The Japanese, who succeeded the Chinese as immigrants to the US starting in the 1880s, were also viewed as “foreign” and unassimilable. In response to anti-Japanese sentiment, Congress passed legislation in 1918 and 1924 that barred immigration from the entire Asian subcontinent and denied the right of Asian immigrants to become naturalized citizens. When World War II broke out, it was an easy step to view Japanese-Americans, even those born in the US, as disloyal enemy aliens and as potential fifth columns. Rationalized at the time as a wartime necessity, the federal government rounded up 120,000 Americans of Japanese ancestry living on the West Coast of the United States and interned them in concentration camps. 

Race and national origin were finally removed as criteria for entry with the passage of the 1965 Immigration and Naturalization Act. However, nearly 50 years later, calls for new bars have arisen, but now targeting Muslims. In 2017, President Trump carried out his campaign promise to keep potential Muslim terrorists out of the US by issuing an Executive Order to bar entry from six predominantly Muslim countries. As with the case of Japanese-Americans during World War II, the “War on Terrorism” has been used as an excuse by some Americans to call for similar extreme measures to deal with American Muslims. Kris Kobach, Secretary of State of Kansas and member of Donald Trump’s transition team, stated in 2016 that the new administration might reinstate a registry of US Muslims from countries where terrorists are active. Not long after Trump’s election victory, a spokesperson for a right-wing super PAC and supporter of Trump, Carl Higbee, appeared on Fox News to promote the creation of a Muslim registry, citing the registration and internment of Japanese-Americans as a precedent.

Muslim Ban 2.0

Following vigorous litigation and a rebuke of the January 27 executive order by the federal courts, on March 6, 2017 President Trump issued a new executive order (EO No. 13780, 82 FR 8977, 8980-81) entitled “Protecting the Nation From Foreign Terrorist Entry Into the United States” which revoked and replaced the January 27 EO.129 Citing judicial concerns,130 the new EO maintains the ban on persons entering from Iran, Libya, Somalia, Sudan, Syria and Yemen, justifying the ban on the basis of national security risks that arise from the presence of terrorist groups in each of these six countries.131 However, it eliminates Iraq from the ban, arguing that Iraq is a special case due to efforts by the US and Iraqi governments to reduce ISIS’ influence in the country as well as steps the Iraqi government has taken to improve travel documentation, information-sharing and the return of Iraqi nationals subject to removal orders.132 However, while the EO eliminated Iraq from the ban, it calls for additional screening practices for Iraqi visa applicants.133 The new EO limits the scope of the previous ban, specifying that it applies to those outside the US who do not have a valid visa.134 Additionally, the EO explicitly states that it does not apply to Legal Permanent Residents, those paroled into the US, dual nationals, diplomats and those already granted asylum or refugee status.135 The new EO maintains the temporary suspension of USRAP and the cap on the entry of refugeesIbid. established by the previous EO.137 The new EO also maintains the suspension on the Visa Interview Waiver Program138 and the review of reciprocity programs.139

Interview Excerpt: Karen Korematsu on the importance of social justice coalitions and organizations for defending the rights of ‘Othered’ communities

KAREN KOREMATSU IS THE FOUNDER AND EXECUTIVE DIRECTOR OF THE FRED T. KOREMATSU INSTITUTE. SEE OUR FULL INTERVIEW WITH KOREMATSU AT HAASINSTITUTE.BERKELEY.EDU/ISLAMOPHOBIA

In 1942, there was conflict within the Japanese-American community regarding the incarceration. Fred Korematsu was vilified from the time he entered the Tanforan Detention Assembly Center in San Bruno, California by his own community because he took a stand against the government. The Japanese-American leaders felt that if they associated with Fred some harm might come to them. Internees had been told by the Japanese-American Citizens League (JACL) that they should go along with the government’s orders for incarceration to prove that they were good Americans. Many believed that Fred, by standing up for what he believed in, was putting the whole community at risk of government backlash. Fred and his family were ostracized by the Japanese-American community even after the war until his case was reopened by his coram nobis (the legal order of a court to correct its original judgment’s proceedings) legal team in 1983. This experience led Fred Korematsu to speak out after September 11th, 2001 when the government cited Korematsu v United States as a possible reason to round up Muslim and Arab-Americans and put them in American concentration camps. In 1942, there were none of the organizations of voice or power that could influence political scapegoating that was occurring at that time. Now we are seeing that many social justice organizations are coming together to speak up and defend Muslim, Arab, Sikh, and South Asian communities from political scapegoating. These coalitions have more power and influence over the discourse than any organizations in 1942. It’s more important now than ever that people become civically engaged and reach across communities by becoming part of the solution and not the problem.

Several parties that had originally filed actions against the first version of the travel ban amended their complaints to include the second version of the travel ban140 and several federal courts issued injunctions, ordering the temporary suspension of the ban.141 On June 26, 2017, the Supreme Court stayed the lower courts’ injunctions for those who had no “bona fide relationship with a person or entity in the United States,” effectively leaving the ban in place for those who could not demonstrate a “bona fide relationship.” However, the Supreme Court did not define what constituted a bona fide relationship. A few days later, the State Department sent a diplomatic cable to embassies and consulates, attempting to explicitly define “bona fide relationship.”142 The cable explicated that connections with resettlement agencies were not a basis of a bona fide relationship and neither were connections with family members like “grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-laws and sistersin-law, [and] fiancés.”143 Shortly after, a federal court in Hawaii found that the parameters of bona fide relationships imposed by the State Department were too limiting and violated the Supreme Court’s order.144 On July 19, 2017, the Supreme Court left the Hawaii court’s order on family definitions in place but stayed the part of the injunction regarding refugee resettlement agencies. Therefore, at the time of publication of this report, refugees whose only US tie was to a resettlement agency were not permitted to travel on that basis. The Supreme Court granted certiorari to review the travel ban and oral arguments in the case are scheduled for October of 2017.145

Laptop Ban

In March of 2017, the US Transportation Safety Administration (TSA) banned most electronic devices, including tablets, laptops, and communication devices larger than smartphones in cabins on flights traveling to the US from 10 airports in eight Muslim-majority countries.146 While the Trump administration asserts the new rules were introduced based on terrorism concerns, some affected by the ban contend that the ban is a form of protectionism in disguise. The ban singled out Muslim-majority countries despite the fact that electronic devices could be used by anyone to do harm, as such a threat is not specific to a handful of Middle Eastern airlines, nor is it specific to Muslim-majority nations.147 Critics of the ban purport that it was introduced to target foreign airlines that have been criticized by their US competitors for receiving government subsidies; in particular, Emirates, Etihad Airways and Qatar Airways. Among these criticisms was speculation that the rule specifically targeted lucrative business and first class travelers, who often work on flights, and would likely prefer to travel on US airlines to access their electronic devices while in flight.148 However, David Lapan, Acting Deputy Assistant Secretary for DHS, insisted the ban was implemented due to terrorism concerns,149 and DHS published a Q&A sheet citing concerns about the smuggling of explosive devices in consumer items.150 The Department of Homeland Security confirmed on July 20, 2017151 that the restrictions on personal electronic devices had been lifted as a result of the nine airlines and 10 airports impacted by the ban complying with new DHS security standards.152