Donald Trump and Islam

Donald Trump's comments on Islam have provoked a firestorm of responses, many of them critical. Variously, his call to ban all Muslim immigrants has been called racist, religious prejudice, unconstitutional, unamerican, bad financial policy. A friend of mine posted a measured and reasoned response, saying his comments will be bad for trade and tourism from the Arab world. Trump's position has been compared to Hitler's treatment of the Jews, to American internment of Japanese persons in WW2. My question is whether the critics are correct, whether Trump's comments are unamerican, unconstitutional, etc,etc. The answer requires a look at American history, law and our Constitution.

There is a very nice summary article here. With regard to Constitutional powers there is little said about immigration. Congress, however, has explicitly given the President the power to unilaterally decide who and what groups may enter the United States. The relevant area is US Code section 1182. The relevant text reads-
'Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.'
There is thus no question  that a President Trump would have broad authority to determine what aliens are to be excluded, and to exclude them by proclamation alone, without further congressional action.

There have been claims that Trump's idea will violate the equal protection clause. That applies to US citizens, not immigrants. Constitutionally we may exclude any group of immigrants we choose. It is common today to imagine US rights apply to anyone interacting with the US. This is not true. Many of our interactions are with countries whose citizens enjoy equivalent rights, but there is no international obligation. This mistake has been made for years with regard to Guantanamo Bay detainees. They are not US citizens, are not entitled to constitutional protections, but are also not prisoners of war since they were not uniformed combatants. This issue I will address further in a moment.

Trump's ban has been called unamerican. Typically the inscription on the Statue of Liberty is quoted, or its picture is shown. That inscription has nothing to do with policy, only intrinsic values. There is a long history of exclusion of various groups on racial, ethnic and religious grounds. There are nice summaries from The American Immigration Council, Wikipedia and, of all places, History.com. One early ethnic limit on immigration was the Chinese Exclusionary Act of 1889. Immigration from non-english speaking regions led to literacy tests being imposed in the early 1900s. Strict quotas were established for numerous races, ethnicities and religions in the mid-20s, including Greeks, Russians and Italians. It was US policy to exclude military refugees from entering the United States. Of course, this policy played out tragically in the lead-up to The Holocaust. Immigration restrictions were fiercely applied to the Far East, including China, Japan, and the Philippines. It was only when these were relaxed in 1965 that significant numbers of oriental immigrants came to the US. 

Religiously based restriction has also been practiced. Catholic immigration was fiercely restricted until the 1930s, with most Irish-Catholics having entered the US prior to 1870. Interestingly, restriction of Caribbean blacks was not an issue. Racial exclusions have applied mostly to orientals, not blacks.

Trump has also been called racist for excluding Muslims when Muslims live in the US, and also for calling for surveillance of mosques. Once again, there is ample precedent. Theodore Roosevelt's famous 1907 quote is apropos here-

'In the first place, we should insist that if the immigrant who comes here in good faith becomes an American and assimilates himself to us, he shall be treated on an exact equality with everyone else, for it is an outrage to discriminate against any such man because of creed, or birthplace, or origin. But this is predicated upon the person's becoming in every facet an American, and nothing but an American...There can be no divided allegiance here. Any man who says he is an American, but something else also, isn't an American at all. We have room for but one flag, the American flag... We have room for but one language here, and that is the English language.. And we have room for but one sole loyalty and that is a loyalty to the American people.'

Many Muslims (and other groups) living in the US do not meet Roosevelt's conditions for being Americans. Clothing, customs and language are all foreign. It is reasonable, not racist, to question the loyalties and motives of those who preserve customs of our enemies. 

The President heads a government one of whose obligations is to defend the United States against all enemies, foreign and domestic. There is very strong precedent for surveillance of domestic groups and institutions. The KKK used churches for meetings and planning of violence against southern blacks. The FBI performed surveillance of churches and homes. This was done (poorly) with suspected communists as well. Whether foolish or desirable, there is no question of the legality of properly authorized surveillance upon those suspected or believed to be planning violence against Americans. 

Trump's ideas are nothing like Hitler's destruction of Jews. Trump has not called for the death of Muslims, the rounding up and imprisonment of Muslims, or any action against Muslims living in the US. There is also no similarity with the US internment of Japanese people (see below).

There has been a claim that Trump's policy will damage trade and tourism. There are relevant references from The Census on foreign trade, and on tourism National Trade and Tourism Office. Us exports totaled 1.265 trillion dollars through OCtober of this year. Of this total, Afghanistan totaled 44 million, or 0.03% of all US trade. We exported 4 billion to Egypt, or 0.3% of all trade. There is no record of significant tourism from any Middle Eastern state except Israel. For trade and tourism purposes, the Muslim Middle Eastern world could literally disappear and nothing would happen. This is also true for oil, as most US oil products come from South America, MExico and Canada. The Middle East supplies Europe and Japan.

The most important issue, however, is being ignored by government and media alike. That is what the status of our fighting with ISIS actually is. We use words like conflict. We are at pains to say we are not at war with Islam or any specific countries, such as Syria, Iraq, Iran or others. The question of whether we are at war, however, has very broad implication. First, it makes internment of nationals from a warring power entirely legal. This was done during WW2 to thousands of Japanese, but also to Italians and Germans in the US and Britain. It was done in WW1 as well. This is legal and reasonable, whether we approve retrospectively or not. That the screening of these people was hasty, colloquial and in rage misses the point that it was legal and reasonable in concept. Surveillance of Muslims and mosques is entirely reasonable if we are at war.

I believe we are. Since WW2 we have been reluctant to use the term war, or to declare it. This is the same wordplay that has us using the term recession instead of depression. War, however, carries with it duties and rights. For those fond of quoting the Geneva Convention, for example, there are specific rights of and duties to uniformed combatants. Forgotten in that is the lack of duty to non-uniformed combatants, who are executable as spies. This is the issue with Guantanamo inmates. They are not subject to American due process, but they are not uniformed combatants. It is legal to detain them and interrogate them. Other treaty obligations, such as the duty to avoid civilian casualties, apply if combatants are not hiding in and amongst civilian populations. If they are, those civilian sites are legitimate military targets.

Most Muslims, especially those in the West,decry terrorism. Most Muslims in the Middle East decry it too, and yet their governments have done little to stop it. But Bush got it right back in 2001. If you train, harbor, feed or supply a terrorist, then you are also a terrorist, and we have a right to attack you. On the basis of this reasoning and the Geneva Convention, I feel we are at war with ISIS, but also with every state that harbors ISIS, or supplies it. Is that is so, Muslims of Middle Eastern extraction are potential enemy sympathizers and collaborators. They may be questioned, their assembly places searched and they may be detained. To pretend we are not at war is I think an emotionally reassuring fiction. There is a nice article on this very topic. 

In summary, Trump's assertions are legal and neither racist, exclusionary or unamerican. He is simply saying, baldly and loudly, what reality is. My mother used to say shit, or get off the pot. We need to let someone else lead a fight against Islamic terrorism, or assert what is happening and act accordingly.

Ted