A Terror Case the "Travel Ban" Would Have Prevented

A lawsuit challenging the policy advances

By Todd Bensman on February 12, 2019

A federal judge in California has kept the life-support systems hooked up to a class-action lawsuit against the Trump administration's "travel ban" from eight countries. The February 4 ruling allowing the suit to advance in the Northern District of California court highlights the fact that, two years after the first versions of the travel ban were introduced, oppositionists are demonstrating a tenacity in crippling the policy or, failing that, to at least force open the side gate much wider.

President Trump's Supreme Court-protected Presidential Proclamation 9645, "Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats", sharply curtailed or completely banned travel from Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia. It did so on the grounds of national security vetting, as suggested by its title.

Thirty-six plaintiffs from five of the Muslim-majority designated countries have attacked the policy by targeting the waiver-granting provision by which the U.S. government can consider letting close family members join them under an "undue hardship" exception allowed in the presidential proclamation. To American consular officers overseas, such people in visa interviews have to prove not only undue hardship, but also that they're not a national security threat, and that their entry is in the interests of the United States. A pretty high bar.

An issue raised in the suit is that the waiver provision was an important reason why the Supreme Court upheld the policy as a whole — and that ranking government bureaucrats in Washington routinely interfere with its faithful administration. The complainants pointed to the approval of 768 waivers out of 33,176 applications for nonimmigrant and immigrant visas between December 8, 2017, and May 31, 2018.

U.S. District Judge James Donato disagreed with the Trump administration's argument that courts can't review entry decisions made by consular officials, and he agreed that U.S. residents can go to court over whether the government is following its own promised policies. So the suit will proceed.

But so, too, will the travel restrictions in the meantime.

And that's a good thing for reasons that often-hysterical oppositionists never seem to grasp. That inability to see may actually be understandable because this policy has roots in an international security intelligence-sharing universe that average citizens probably know little about; it boils down to whether sending-countries keep criminal and national security records on citizens and can (or will) share them with our homeland security agencies for routine vetting of criminals and terrorists.

Syria, Iran, Venezuela, and North Korea, for instance, keep lots of intelligence records on their citizens. But they are diplomatically estranged from our own government, and so when one of their citizens applies to enter our country, it's not like we can just pick up the phone and ask for a records check to see if, for instance, the applicant is a repeat pedophile, armed robber, or member of a terrorist organization.

Chad, Yemen, Libya, and Somalia have virtually no systems or repositories of records at all. So there's no point in even picking up the phone for a database check on the strangers; their claims are nearly impossible to check out.

Opponents have decried the policy as a racist and religiously discriminatory "Muslim ban". But this defies the fact that Muslim-majority countries such as Jordan, Egypt, Saudi Arabia, the Gulf States, and many other Muslim-majority countries are not designated. Why would this be? Because these Muslim-majority countries not only keep criminal and intelligence history records (if perhaps imperfectly sometimes), but are willing to share them with America. Longstanding protocols and relationships are in place to facilitate just that.

Seen in this light, the argument for this kind of travel restriction policy should be for more of it until designated countries can reach a better threshold for keeping records and sharing them; many other countries in the world probably ought to be added to list because they also don't keep very good records or maintain relationships with U.S. security agencies. The Democratic Republic of Congo, Burma, and a few other places come to mind, .

Somalia, which is on the list, stands as an apt case in point, as I pointed out in a post last September about the case of a Somali man, Mohamed Abdirahman Osman, and his wife Zeinab Abdirahman Mohamed, who lawfully resettled as refugees with their five children, during the Obama administration, in Tucson, Ariz. Osman stands accused of hiding his membership in the al-Shabaab terrorist group:

Discerning the difference for Somalis is far more problematic than for applicants of most other countries. That's because from 1991 to 2011, a nearly pure anarchy of civil war and absence of government in Somalia meant no one was issuing birth certificates, driver's licenses, diplomas, passports, marriage or divorce documents, or any other government records reflecting that citizens even existed. Just as surely, no higher order of bureaucracy was tracking criminal histories or intelligence as to who belonged to terrorist groups.

Fast forward to that security-checking challenge today. Somalis show up at a U.S. embassy, consular office, or refugee camp tent abroad with a refugee application in hand reflecting a name, birth date, and tale of woe. Can American adjudicators simply call up the current Somali government and ask for an identity check or criminal history on any Somali adult?

The answer of course is still no. Much more disturbing details have emerged since then about the federal prosecution of Mohamed Abdirahman Osman and his wife Zeinab Abdirahman Mohamed. They were arrested in June 2017 and charged with repeatedly lying on immigration and refugee applications about their names, nationalities, and deep involvement with the Somalia-based designated terrorist group al-Shabaab. It took confessions by Osman himself and search warrants for authorities to learn that he actually is an Ethiopian who falsely claimed he was a Somali, perhaps knowing there would be no records to check in that country.

Transcripts from detention hearings show that he allegedly admitted to the FBI that he had been successfully recruited to al-Shabaab as a teenager and later lost both hands and his eyesight in an explosion (he offered three different stories about the explosion to consular officials along the way to America). He later hired smugglers and bought fraudulent passports, which he used to settle as a refugee in China in 2011. A few years later, he allegedly gamed American consular officials into obtaining a refugee visa by using the same false names, documents, and nationality. And who could those Obama-era consular officials have called to double-check any of this?

According to the transcripts from the case (which drew no media attention), Osman sent as much as $32,000 to family who were active members of al-Shabaab, including to a brother who participated in the deadly May 24, 2014 bombing of a restaurant in Djibouti after the brother went on the lam. Al Shabaab claimed responsibility. Osman's aunt and uncle were convicted of the bombing too, though the uncle also is a fugitive. Osman even allegedly maintained Facebook communications with his fugitive brother, using code to reference al-Shabaab.

Assistant U.S. Attorney Beverly K. Anderson successfully argued that Osman should stay in detention pending trial sometime this coming April because, given his background and mendacity, he represented an imminent danger to the community despite his handicaps. Osman is still able to drive a car.

"As we've already seen around the world and also even in the United States you don't need a bomb to pose a danger to people or pedestrians. Even driving a car into a crowd of people is serious enough and enough to kill people," she argued, persuasively enough for the judge.

Anderson also noted at the hearing, a little obviously, that "If the defendant had been truthful on that application, he and his family would never have been granted refugee status."

Under the president's travel restriction proclamation, there will be no need to even try to vet impossible-to-vet stories like those offered by Osman and his wife.