Why travel ban could backfire

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Story highlights

  • Aaron Miller: Trump reformulated travel ban to keep campaign pledge. But data show it's aimed at problem we don't have
  • Miller says order could alienate American Muslims whose help is key to stemming real threat: homegrown jihadi terror

Aaron David Miller is a vice president and distinguished scholar at the Woodrow Wilson International Center for Scholars and author of "The End of Greatness: Why America Can't Have (and Doesn't Want) Another Great President." Miller was a Middle East negotiator in Democratic and Republican administrations. Follow him @aarondmiller2. The opinions expressed in this commentary are his.

(CNN)The executive order on travel signed Monday by President Donald Trump is an effort to avoid the pitfalls of the last executive order on travel -- which was blocked by the courts -- and above all to get something implemented. But it still doesn't answer the mail on the threats we face.

Better than the last?

Clearly, the botched rollout and sweeping nature of the initial executive order guaranteed near universal negative reaction at home and abroad on legal, constitutional and national security grounds.
Indeed, since that initial January rollout, leaked documents from the Department of Homeland Security have seemingly undermined the national security rationale for the original order. And, so, this new version's strategic purpose seems to be to avoid court challenges that might cripple its fate as well.
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That is likely why the new order seeks to avoid restricting the entry of legal permanent residents; avoids mentioning any preference for religious minorities that might suggest discrimination; allows a lead time for implementation that would prevent the confusion and at times chaos for those individuals traveling or preparing to do so imminently, and drops one of the earlier executive order's most controversial provisions -- restricting Iraqis -- who are current and key allies in the fight against ISIS from the list of countries of concern.
The new EO also drops restrictions on a separate Syrian refugee program; and allows those with valid visas to travel. There are likely to be court challenges to the administration's latest order. But it likely stands a better chance of being upheld and implemented; and is likely to find more public and congressional support.

Why do it in the first place?

Even in its amended form, the new executive order appears to be a solution designed to address a problem we don't have. Critics (myself included) have argued that looking at the data since 9/11 leads one to the inescapable conclusion that the real threat to the US homeland comes not as a result of those recently admitted into the US as refugees, or with immigrant or nonimmigrant visas, but from home grown jihadis who have been radicalized here, and are either US citizens or legal permanent residents.
As my fellow CNN contributor, terrorism analyst Peter Bergen, has shown, of the 12 terrorists who have conducted deadly attacks since 9/11, killing 94 Americans, none emigrated from or were born into a family that emigrated from any of the countries on the original EO's list.
And since 1980, when the Refugee Act came into being, no individual admitted as a refugee has been implicated in a fatal terror attack here at home.
One has to wonder how any new vetting procedure can possibly discover, in the case of young children or those not yet born to families admitted into the United States, a person who might be radicalized or influenced by jihadi propaganda later on.

What is it supposed to do?

Presumably, the Trump administration, burned badly during the order's first rollout, isn't looking for a fight and wants to fulfill the President's campaign promise to tighten and toughen up standards for admission -- his "extreme vetting."
But what this actually means and what kind of new procedures might be developed in the interim fourth-month period in which refugee admissions will be suspended is not at all clear.
One focus might be an effort to require more documentation from places like Syria, where there's no central government and where the civil war has made verification more complicated -- and sometimes impossible. Still, the vetting of Syria refugees has so far proven to be quite effective.
One doesn't need to believe in conspiracy theories to wonder whether the strategic purpose of the EO exercise isn't simply to suspend immigration from countries of concern, but is instead aimed at developing criteria that these countries cannot or will not meet.
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During his address to Congress, President Trump referred to the importance of not allowing a beachhead of terrorism to be created in the United States.
How you would accomplish this without some kind of loyalty test certain to be unconstitutional (different from the citizenship oath for US citizens to uphold the Constitution) is unclear. And that suggests that the administration may want to develop new procedures that makes immigration from the six listed countries of concern much harder.

Improved vetting really necessary?

The fact is, we live in the age of jihadi terror. September 11 was among the bloodiest days in American history. And there are terror groups such as al Qaeda in the Arabian Peninsula that are actively involved in planning more terror against the US. Vigilance must be constant, and regular reviews of our security procedures are critical. But whatever changes are made must be designed to make us more secure not less.
The amended EO doesn't seem to do this. Countries like Afghanistan, Pakistan and Saudi Arabia should be on the list of countries of concern, but they are not. Moreover, there are costs and downsides to even this amended order.
But far more serious -- given the President's rhetoric about banning Muslims during the campaign -- is the likelihood that it will alienate and stigmatize the 3 million Americans of the Muslim faith whose support and cooperation is vitally important to addressing the real threat that the data demonstrates we face: homegrown jihadi terror.