Editor’s Note: James R. Clapper, Jr., a CNN national security analyst, served as director of National Intelligence from 2010 to 2017, having served previously as director of the National Geospatial-Intelligence Agency and director of the Defense Intelligence Agency. Joshua A. Geltzer served as senior director for counterterrorism and deputy legal adviser at the National Security Council from 2015 to 2017. He is now executive director and visiting professor of law at Georgetown’s Institute for Constitutional Advocacy and Protection. Matthew G. Olsen served as director of the National Counterterrorism Center from 2011 to 2014. He is now an adjunct senior fellow at the Center for a New American Security and a lecturer at Harvard Law School. The opinions expressed in this commentary are their own.
Speaking in Davos this January, President Donald Trump promised that, “when it comes to terrorism, we will do whatever is necessary to protect our nation.” It’s a commitment we share with the President. In fact, developing and implementing lawful and effective counterterrorism strategies and policies used to be our jobs in the intelligence community, at the White House and at the National Counterterrorism Center, respectively. That’s precisely why we are opposed to Trump’s travel ban, which heads to the Supreme Court this week for oral arguments.
It’s unnecessary, at odds with the Constitution, and ultimately counterproductive because it makes Americans less safe rather than more.
Effective counterterrorism policies respond to real threats, which in turn means responding to real intelligence about threats. But Trump’s prohibition on entry to the United States from a number of overwhelmingly Muslim-majority countries is grounded in neither real threats nor real intelligence.
We’ve spent countless hours tracking and disrupting real terrorist threats. Those threats are caused by particular individuals, not the 150 million people categorically barred from our country by Trump’s fulfillment of his campaign promise to implement “a total and complete shutdown of Muslims entering the United States.” Moreover, there certainly aren’t countrywide threats emanating from the nations affected by Trump’s travel ban, given that no national from any of those countries has caused any of the terrorism-related deaths in the United States since 1975.
Legitimate threats involve specific people, and that’s why our country conducts rigorous and tailored vetting for specific travelers coming to the United States. It’s an approach that involves vetting those travelers across the information possessed by the intelligence and law enforcement communities multiple times, in response to threats and intelligence about specific individuals seeking entry to the United States.
Over the past several years, the government, working with career national security professionals, has reviewed and revised the screening process to adapt to new threats when the intelligence warranted a shift. That’s an approach diametrically opposed to the one found in Trump’s travel ban.
Trump’s ban isn’t just unnecessary; it’s also contrary to our constitutional values. Before we worked on counterterrorism policy, two of us were national security lawyers in the executive branch. We believed and continue to believe that the Constitution provides significant leeway to the president to protect Americans. But penalizing individuals because they belong to a particular religion – even when the government tries, as a proxy, penalizing countries with populations overwhelmingly of that religion – falls outside that leeway. Indeed, our Constitution’s First Amendment specifically forbids it. Yet it’s precisely what President Trump’s travel ban does.
Trump has made clear his view of Islam: “Islam hates us,” he’s declared, later adding, “We’re having problems with the Muslims, and we’re having problems with Muslims coming into the country.” Trump’s view of Muslims has driven his three attempts at implementing the “shutdown of Muslims entering the United States” he promised as a candidate.
Moreover, Trump’s travel ban has stunned national security experts across the government, none of whom appears to have ever suggested a blanket ban as a way to protect Americans. And, ultimately, Trump’s view of Islam and Muslims makes his travel ban unconstitutional, as several courts have concluded, because it runs headlong into the First Amendment’s protection against the government favoring or, as here, disfavoring any particular religion.
It would be bad enough if Trump’s travel ban were simply unnecessary and unlawful. But it’s also downright dangerous, especially to our country’s counterterrorism efforts. The ban is so obviously, palpably, indeed explicitly anti-Muslim in nature that it has – understandably – offended Muslim-American communities around the world, including in the United States. Yet those are precisely the communities that can prove critical for identifying and responding to individuals becoming radicalized by groups like ISIS and al Qaeda. Moreover, effective counterterrorism relies heavily on robust intelligence-sharing relationships with foreign governments.
Banning all travelers from a foreign country seems a surefire way to offend that country’s government and impede intelligence-sharing, rather than enhancing the flow of information about terrorist threats as effective counterterrorism requires.
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Indeed, after Chad’s inclusion in the third travel ban, Chad pulled its troops out of the continuing counterterrorism struggle with Boko Haram in Niger. Trump recently removed Chad from the list of countries subject to his travel ban; yet, despite that step, there’s been no indication of when, if ever, Chad’s troops will return to Niger. It’s usually not easy to soothe an offended partner. And, more broadly, Trump’s travel ban has inflamed anti-American sentiment globally and undermined key counterterrorism partnerships with countries from Europe to the Middle East.
As former national security officials, we’re not alone in thinking that Trump’s travel ban fails to respond to threats to our country and actually undermines our security. Forty-nine of our most senior former colleagues joined the three of us in telling the Supreme Court, in a brief filed last month, that Trump’s travel ban “not only fails to advance the national security or foreign policy interests of the United States, it harms those interests by taking discriminatory actions unprecedented in American history.”
Like our former colleagues, we’ve dedicated much of our careers to countering terrorism. Trump’s travel ban hinders, rather than helps, the critical mission of protecting Americans.