The United States has a long and unfortunate history of pushing through aggressive national security measures by claiming that they restrict only the rights of foreigners, not Americans. The tactic usually works. In the Palmer Raids of 1919–1920, for example, J. Edgar Hoover, then a young attorney in the Justice Department, responded to a series of anarchist bombings by rounding up not the bombers themselves—they were never found—but thousands of foreign nationals. They were charged not with terrorism but with visa violations or association with Communists. As Louis Post, an assistant secretary of labor who valiantly opposed the raids and was threatened with impeachment for doing so, wrote of that period, “The force of the delirium turned in the direction of a deportations crusade with the spontaneity of water flowing along the course of least resistance.”
President George W. Bush followed a similar strategy after the terrorist attacks of September 11, 2001. He locked up only foreign nationals at Guantánamo (with one unintended exception), disappeared only foreign nationals into the CIA’s black sites, and subjected only foreign nationals to the CIA’s torture. In the first two years after September 11, the Bush administration rounded up, detained, and deported thousands of Arab and Muslim immigrants in the US, and tried many of them in closed immigration proceedings—without identifying a single terrorist among them. Bush’s message to the American people was clear: you need not sacrifice your own rights for greater security; we will sacrifice the rights of foreigners instead. For the most part, Americans—and American courts—accepted the bargain.
President Donald Trump no doubt thought that his travel ban, issued on January 27, would enjoy a similar reception. Portentously titled “Protecting the Nation from Foreign Terrorist Entry into the United States,” it singled out not terrorists, but all citizens of seven predominantly Muslim countries from traveling to the US for ninety days, suspended all refugee admissions for 120 days, and indefinitely halted refugee admissions from Syria. But this time the response was different. The resistance to Trump’s action was immediate, spontaneous, and widespread—from both the general public and the courts. And when, stymied by the courts, Trump issued a revised executive order on March 6, it too was widely condemned by the public and blocked by the courts. The election of Trump, it seems, may have taught Americans, and their judges, to be at once more skeptical of executive power and more solicitous of the rights of noncitizens.
Particularly noteworthy has been the sheer range of groups and institutions in American society that have come together in opposition to the travel ban. The weekend the first order was announced, tens of thousands of citizens streamed to airports to protest. This is remarkable not only because Americans were protesting on behalf of…
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