We Are Not Descended from Fearful Men but Our Descendants May Be (Updated x2)

In December of 2015, I wrote in response to then-Gov. Pence’s Syrian refugee ban which followed in the wake of the Paris shootings:

[H]umans are notoriously bad at risk assessment. Fear comes first. Assessment of risk follows along. We assign a higher risk to things we most fear rather than fearing in proportion to the risk. Snakes and spiders are scarier than cars, which are far more deadly. Spectacular, fear-inspiring incidents like the Paris attack prompt a much stronger, more immediate reaction than low-level dangers that lurk in the background like, say, pollution and smoking.

Knee-jerk policy decisions do not keep Hoosiers safe or secure. Rather, such decisions tend to reinforce the fear, whether rational or not[.]

The Seventh Circuit ultimately struck down Gov. Pence’s ban. Primarily there were federal preemption problems, but with respect to the substantive rationality of Pence’s ban, Judge Posner wrote:

The governor’s brief asserts “the State’s compelling interest in protecting its residents from the well?documented threat of terrorists posing as refugees to gain entry into Western countries.” But the brief provides no evidence that Syrian terrorists are posing as refugees or that Syrian refugees have ever committed acts of terrorism in the United States. Indeed, as far as can be determined from public sources, no Syrian refugees have been arrested or prosecuted for terrorist acts or attempts in the United States.

. . .

He argues that his policy of excluding Syrian refugees is based not on nationality and thus is not discriminatory, but is based solely on the threat he thinks they pose to the safety of residents of Indiana. But that’s the equivalent of his saying (not that he does say) that he wants to forbid black people to settle in Indiana not because they’re black but because he’s afraid of them, and since race is therefore not his motive he isn’t discriminating. But that of course would be racial discrimination, just as his targeting Syrian refugees is discrimination on the basis of nationality.

Last night, we learned that Trump has taken a shine to his Vice-President’s irrationally fearful way of thinking and has imposed, via executive order, his own ban.

[Trump] on Friday closed the nation’s borders to refugees from around the world, ordering that families fleeing the slaughter in Syria be indefinitely blocked from entering the United States, and temporarily suspending immigration from several predominantly Muslim countries. . . . Mr. Trump also established a religious test for refugees from Muslim nations: He ordered that Christians and others from minority religions be granted priority over Muslims.

Trump is a coward and must think that the rest of America is populated by cowards as well. But as Edward R. Murrow wrote in response to McCarthyism, “We will not walk in fear, one of another. We will not be driven by fear into an age of unreason, if we dig deep in our history and our doctrine, and remember that we are not descended from fearful men — not from men who feared to write, to speak, to associate and to defend causes that were, for the moment, unpopular.”

I want to say Americans are better than this. I hope that they are. But, a substantial minority of the country voted for a President they knew or should have known was unqualified and held such irrational fears. Now our nation and the world has to deal with the convulsive disruption to people’s lives caused by his impulsive behavior.  This is not a party thing. Or it shouldn’t be. Partisanship makes it easy for Democrats to stand against fearful, unAmerican actions by Trump. But ultimately Republicans and Democrats alike should stand up to do the right things, so that – one day – our descendants aren’t forced to admit that, unlike us, they were descended from fearful men.

Update 1 Throughout the day, protests broke out across the country at airports where people were being detained pursuant to Trump’s executive order. The ACLU pursued and was granted an emergency stay on the order.

Update 2 Benjamin Wittes, writing at Lawfare, has a post entitled, “Malevolence Tempered by Incompetence: Horrifying Executive Order on Refugees and Visas”. It discusses the unusually sloppy process by which the order was drafted and how it is mainly that incompetence that offers an angle with which to target an order motivated by bigotry and religious discrimination. But, as to the order’s stated purpose to protect the U.S. from foreign nationals who bear hostile attitudes to the country, the order is wildly under-inclusive and over-inclusive:

On the over-inclusive side, it will keep tens of thousands of innocent refugees who have been subject to unspeakable violence outside of the protection of the United States on the vanishingly small chance that these people might be terrorists—indeed, to make it impossible for them even to apply for refugee admission if they are Syrian. It will prevent untold numbers of people about whom there is no whiff of suspicion from coming here as students, as professionals, as tourists. It overtly treats members of a particular religion differently from other people.

On the underinclusive side, the order wouldn’t have blocked the entry of many of the people responsible for the worst recent terrorist attacks. There is, in fact, simply no rational relationship between cutting off visits from the particular countries that Trump targets (Muslim countries that don’t happen to be close U.S. allies) and any expected counterterrorism goods. The 9/11 hijackers, after all, didn’t come from Somalia or Syria or Iran; they came from Saudi Arabia and Egypt and a few other countries not affected by the order. Of the San Bernardino attackers (both of Pakistani origin, one a U.S. citizen and the other a lawful permanent resident), the Orlando shooter (a U.S. citizen whose parents were born in Afghanistan), and the Boston marathon bombers (one a naturalized U.S. citizen, one a green card holder who arrived in Massachusetts from Kyrgyzstan), none came from countries listed in the order. One might argue, I suppose, that the document is tied to current threats. But come now, how could Pakistan not be on a list guided by current threat perception?

Instead, Wittes, says, the document’s real purpose is to burden Muslim lives to make a political point. That’s the only reason you’d “marginalize your expert security agencies and fail to vet your ideas through a normal interagency process.” If you’re pursuing real security objectives, you don’t target the wrong people – like green card holders who have been here for years or “students individually suspected of nothing who are here lawfully and just happen to be temporarily overseas.”

The good news, sort of, is that one immigration described the document as looking like something an intern might have come up with over a lunch hour. “This order is a giant birthday present to the ACLU and other immigration litigators.” But, even if the order ends up on the legal trash heap, Trump is needlessly making the world more dangerous for us by recklessly elevating diplomatic tensions.