By Sara Wolovick
President Donald J. Trump’s Muslim ban is getting a lot of attention and has drawn court challenges, including two sponsored by Americans United. But under the radar, the administration seems to be implementing another policy aimed at keeping Muslims out of the country: a purported ideological test that is really a religious test.
As a candidate, Trump boasted about the policy. In July 2016 he told a crowd in Youngstown, Ohio, “In the Cold War, we had an ideological screening test. The time is overdue to develop a new screening test for the threats we face today. I call it extreme vetting.”
A year later, U.S. Immigration and Customs Enforcement solicited technology companies to develop programs to determine which visa applicants should be admitted under the “Extreme Vetting Initiative.”
Under this program, applicants will be screened to evaluate their “probability of becoming a positively contributing member of society,” “their ability to contribute to national interests” and to “assess whether an applicant intends to commit criminal or terrorist acts.”
These phrases appear verbatim in Trump’s original Jan. 27, 2017, executive order blocking travelers from seven Muslim-majority countries, but the government has not explained what criteria it will use to make these determinations. Americans United has joined with Muslim Advocates, the Southern Poverty Law Center, the Brennan Center for Justice, and Professor Shoba Sivaprasad Wadhia to file a Freedom of Information Act request on the government’s vetting criteria because the Extreme Vetting Initiative appears to be simply a subtler Muslim ban.
Although candidate Trump announced his intention to bring back ideological tests, the administration has not openly admitted that extreme vetting is such a test. But evidence is mounting that it is. In April, The Wall Street Journal reported that the Department of Homeland Security (DHS) was trying to implement an ideological test like the one proposed by Trump by demanding that visa applicants reveal their social media and e-mail usernames and passwords, according to a senior DHS official working on new standards for screening applicants.
When then-DHS Secretary John F. Kelly was questioned about ideological tests during a Senate hearing, he did not deny that government officials would ask people for social media passwords, nor did he deny that officials would ask people about their ideology – although he claimed that such efforts would not be practicable given the number of applicants.
In August, the State Department requested funding to subject visa applicants to additional questions regarding their social media usernames and platforms. As noted in Americans United’s FOIA request, Secretary of State Rex Tillerson also directed foreign consulate officials to identify “applicant populations warranting increased scrutiny” without explaining which factors were relevant for this determination.
While ideological tests for visa applicants have been used before against potential or suspected communists, the Trump administration’s ideological test is different because it could function as a religious test by casting Islam as a political ideology instead of a religion.
This strategy is common among the far right. When Trump called for a total ban on Muslims entering the country during his presidential campaign, he cited a discredited study from the far-right think tank Center for Security Policy (CSP) in support of his proposed religious ban.
This was one of dozens of times that Trump cited research from the CSP. Frank Gaffney, whom former senior White House advisor Steve Bannon once referred to as “one of the senior thought leaders and men of action in this whole war against Islamic radical jihad,” is the founder and president of the CSP. Gaffney has argued that Islam is not a true religion, but a totalitarian political ideology.
Similarly, at an event hosted by a far-right anti-Muslim group, ACT! for America, in the summer of 2016, former National Security Advisor Michael Flynn stated, “I don’t see Islam as a religion. I see it as a political ideology … it will mask itself as a religion globally because, especially in the West, especially in the United States, because [sic] it can hide behind and protect itself behind what we call freedom of religion.”
As Mother Jones reported, Bannon similarly referred to Islam as “a political ideology,” comparing Shariah law to Nazism, fascism and communism.
A strategy paper produced by the CSP titled “Stop Importing Jihadists” characterizes Shariah-adherent Muslims as supporters of a totalitarian ideology. It claims that “Adherence to Sharia requires support for and active work to achieve the destruction or subordination of both the U.S. Constitution and the national existence of the United States of America.”
The CSP paper calls for an ideological test to exclude Shariah-adherent Muslims as totalitarians under the Immigration and Nationality Act (INA), which allows the government to exclude communists and members of totalitarian parties from entering the U.S.
The INA defines a “totalitarian party” as “an organization which advocates the establishment in the United States of a totalitarian dictatorship or totalitarianism.” The CSP’s legal argument is premised on a monolithic view of varied religious belief and practice. It frames individual observant Muslims as disloyal enemies of the state who are part of a vast conspiracy seeking political and social domination. Gaffney has stated that mainstream organizations like the Council on American-Islamic Relations are in fact fronts for the Muslim Brotherhood, which he claims secretly controls most American mosques and seeks to replace the American legal system with a caliphate under Shariah.
This rhetoric has been used against other religious minorities to cast them as dangerous and treacherous outsiders. Anti-Semites and neo-Nazis have accused Jews of being part of an international conspiracy for global domination. In the 19th and 20th centuries, Catholics were accused of being unfit for civic life and untrustworthy because their allegiance to the Pope might make them a conduit for foreign influence. Mormon immigrants were denied naturalization in the late 19th century because judges believed that their allegiance to their religious leaders made them disloyal and unfit for citizenship.
Activists compared Mormons to Muslims to depict the former as un-American foreigners who contaminated the American electorate with despotism, thereby justifying disenfranchising them, excluding them from jury pools and denying them entry to the United States. Like the 19th century activists who claimed that Mormonism was an inherently despotic and undemocratic contagion, far-right activists have attempted to stigmatize observant Muslims as promulgating an aggressive incursion on democracy and freedom.
Rather than view the diverse and wide-ranging understandings of the religious precepts of Shariah in various Islamic sects as analogous to halachah (i.e. Jewish law), far-right activists and politicians have incorrectly tried to label Shariah as a totalitarian ideology, rendering its followers unworthy of any protection against religious discrimination, regardless of whether individuals are in fact non-violent. Within this worldview, Islam itself is seen as dangerous and violent. As Flynn tweeted: “Fear of Muslims is RATIONAL.” Business owners have used this rationale to openly ban Muslims from their establishments, citing security concerns.
Although federal judges have found that various iterations of the Muslim ban showed discriminatory intent, even though the executive orders themselves did not mention Muslims or Islam, several judges on the U.S. 9th Circuit Court of Appeals wrote a dissenting opinion arguing that the courts may not scrutinize the president’s reasons for excluding a class of aliens from entry as long as the purported reason is facially legitimate and made in good faith.
Americans United has successfully offered evidence that the Muslim bans have not been made in good faith, exposing the administration’s actions to greater scrutiny under the First Amendment for denigrating and targeting a religion.
But the government could skirt constitutional challenges by focusing on ideology and reframing religious belief and practice as merely political if these discriminatory policies are less overt and hidden behind secret algorithms. The Electronic Privacy Information Center has argued for greater algorithmic transparency because predictive programs – like the one the government seems to want technology companies to develop for the Extreme Vetting Initiative – can mask discriminatory profiling.
Bannon and Flynn no longer work in the White House, but Trump has consistently called for less “politically correct” or “watered down” travel bans to effect what he originally proposed: a Muslim ban.
Sara Wolovick, a legal intern at Americans United, is a law student at Georgetown University.