The president made a morally bankrupt decision in banning refugees

Someone asked me on Facebook what my problem was with the “Temporary Ban” that President Trump imposed. I thought I would go into some detail.

What Has Happened?

First, how does the President have this authority in the first place? Federal law states that he may suspend travel of entire classes of people that he may state and for a period of time such as he may determine. Here’s what 8 USC § 1182(f) states:

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.

The courts will determine if this is sufficient power, and President Trump’s order does quote other laws. The key point is that Congress envisioned the need for the president to act quickly.

The meat of the order that has caused all the chaos is as follows:

I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas).

For clarity, C-2 and G-1, G-2, G-3, and G-4 visas are used by diplomats and their families (you can find all the visa categories here). In other words, excluding those visas, in the general case, all other non-citizens who hold passports from the seven countries in question are barred from entering the United States, whether they are visitors or resident aliens.

There are a few exceptions:

(g) Notwithstanding a suspension pursuant to subsection (c) of this section or pursuant to a Presidential proclamation described in subsection (e) of this section, the Secretaries of State and Homeland Security may, on a case-by-case basis, and when in the national interest, issue visas or other immigration benefits to nationals of countries for which visas and benefits are otherwise blocked.

This means that the Secretaries of State and Homeland Security can update the rules. There is no Secretary of State at the moment. This leaves the Secretary of Homeland Security John Kelly. This apparently happened over the weekend, according to some reports.

The text of the order then has several references to people fleeing religious persecution, such as the following:

Upon the resumption of USRAP admissions, the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.

The majority religion of each of the countries listed in the ban is Islam. What this rule states is that if you are a woman persecuted for wearing not wearing a head scarf and happen to be Christian or Jewish or Buddhist, you get priority. If you are Muslim you are out of luck.

I have, then, three objections to the presidential order.

1. Callous Disregard for Human Life

The way it was implemented stranded many people thousands of miles away from their homes and loved ones, and in some cases leaving some who were visiting a foreign country in a position where they would be forcibly returned to a “home” country that would put their lives at risk. How might this happen? Imagine a man who was born in one of the countries “of concern” (say, Iran) but departed as a political refugee to England. Then he moved to the United States, because he married an American woman. His home, his wife, and perhaps children are in the United States. If he went back to England, or worse, to some other country, last week to visit a sick friend or relative, he would not have permission to return to the United States, and he wouldn’t have permission to remain in the UK. That means that he would be at risk of being sent back to Iran. The original order did not take people like this man into account. Even to this moment, if he does not yet have a green card (that takes a year or two), he would not be able to get back home. Even at relatively low probabilities of this happening with any one individual, The Law of Large Numbers means that a case like this has almost assuredly happened. Perhaps many.

2. Made Up Threat

President Trump wasn’t responding to a real threat. The Wall Street Journal (no liberal bastion) analyzed this in depth and found that of “180 people charged with jihadist terrorism-related crimes or who died before being charged, 11 were identified as being from Syria, Iraq, Iran, Libya, Yemen, Sudan or Somalia”. Moreover, in the past 24 hours, it’s become clear that the president acted without proper input from his Secretary of Homeland Security. And so, this was, as my friend and columnist Bruce Schneier coined the term years ago, Security Theater.

A decision that has no upside tradeoff that harms others is, by definition, morally bankrupt. I conclude that Trump is therefore morally bankrupt.

3. Religious Bigotry

I wrote at the top that I had three objections. The third objection is that the ban, as written, has the tinge of bigotry, because one religion in particular is disfavored – Islam.

Conclusions

There may be times when we need to suspend travel to the United States in a hurry. Imagine what would happen if there were a rampant and dangerous pandemic. The president needs to have the authority to protect the country in those sorts of circumstances. We need to be able to trust that the president will use his authority in a moral and responsible way. He didn’t do that here. Far from it. In this case he acted in callous disregard for human life. The president abused his authority.

On criticizing President Trump

I’ve have been debating with friends about how best to deal with the new president and his administration. Some say, “Give him a chance,” while others think he’s already gone too far. A former president made the point far better than I could have, and so I’m simply going to quote him:

The President is merely the most important among a large number of public servants. He should be supported or opposed exactly to the degree which is warranted by his good conduct or bad conduct, his efficiency or inefficiency in rendering loyal, able, and disinterested service to the Nation as a whole. Therefore it is absolutely necessary that there should be full liberty to tell the truth about his acts, and this means that it is exactly necessary to blame him when he does wrong as to praise him when he does right. Any other attitude in an American citizen is both base and servile. To announce that there must be no criticism of the President, or that we are to stand by the President, right or wrong, is not only unpatriotic and servile, but is morally treasonable to the American public. Nothing but the truth should be spoken about him or any one else. But it is even more important to tell the truth, pleasant or unpleasant, about him than about any one else.

Teddy Roosevelt, in a letter to the Kansas City Star, 18 May 1918

Should Uber require a permit for testing?

The Wall Street Journal and others are reporting on the ongoing battle between Uber and state and local governments. This time it’s their self-driving car. Uber announced last week that they would not bother to seek a permit to test their car, claiming that the law did not require one. The conflict took on a new dimension last week when one of Uber’s test vehicles ran a red light.

Is Uber right in not wanting to seek a permit? Both production and operation of vehicles in the nearly all markets are highly regulated. That’s because auto accidents are a leading cause of death in the United States and elsewhere. The good news is that number is falling. In part that’s due to regulation, and in part it’s due to civil liability laws. I’m confident that Uber doesn’t want to hurt people, and that their interest is undoubtedly to put out a safe service so that their reputation doesn’t suffer and their business thrives. But the rush to market is sometimes too alluring. With the pace of technology being what it is, Uber and others would be in a position to flood the streets with unsafe vehicles, possibly well beyond their ability to pay out damages. That’s when regulations are required.

There are a few hidden points in all of this:

As governments consider what to do about regulating the Internet of Things, they should recognize that much of the Internet of Things is already regulated. California did the right thing by incrementally extending the California Vehicle Code to cover self-driving vehicles, rather than come up with sweeping new regulations. Regulations already exist for many other industries, including trains, planes, automobiles, healthcare, electrical plants.
We do not yet have a full understanding of the risks involved with self-driving cars. There are probably many parts of the vehicle code that require revision. By taking the incremental approach, we’ve learned, for instance, that there are places where the vehicle code might need a freshening up. For instance, self-driving cars seem to be following the law, and yet causing problems for some bicyclists.
IoT regulation is today based on traditionally regulated markets. This doesn’t take into account the full nature of the Internet, and what externalities people are exposed to as new products rapidly hit the markets. This means, to me, that we will likely need some form of regulation over time. There is not yet a regulation that would have prevented the Mirai attack. Rather than fight all regulation as Uber does, it may be better to articulate the right principles to apply. One of those is that there has to be a best practice. In the case of automobiles, the usual test for the roads is this is whether the feature will make things more or less safe than the status quo. California’s approach is to let developers experiment under limited conditions in order to determine an answer.

None of this gets to my favorite part, which is whether Uber’s service can be hacked to cause chaos on the roads. Should that be tested in advance? And if so how? What are the best practices Uber should be following in this context? Some exist.

Comey and Adult Conversations About Encryption

What does an adult conversation over encryption look like? To start we need to understand what Mr. Comey is seeking. Then we can talk about the risks.

AP and others are reporting that FBI director James Comey has asked for “an adult conversation about encryption.” As I’ve previously opined, we need just such a dialog between policy makers, the technical community, and the law enforcement community, so that the technical community has a clear understanding of what it is that investigators really want, and policy makers and law enforcement have a clear understanding of the limits of technology. At the moment, however, it cannot be about give and take. Just as no one cannot legislate that π = 3, no one can legislate that lawful intercept can be done in a perfectly secure way. Mr. Comey’s comments do not quite seem to grasp that notion. At the same time, some in the technical community do not want to give policy makers to even evaluate the risks for themselves. We have recently seen stories of the government stockpiling malware kits. This should not be too surprising, given that at the moment there are few alternatives to accomplish their goals (whatever they are).

So where to start? It would be helpful to have from Mr. Comey and friends a concise statement as to what access they believe they need, and what problem they think they are solving with that access. Throughout All of This, such a statement has been conspicuous in its absence. In its place we have seen sweeping assertions about grand bargains involving the Fourth Amendment. We need to be specific about what the actual demand from the LI community is before we can have those sorts of debates. Does Mr. Comey want to be able to crack traffic on the wire? Does he want access to end user devices? Does he want access to data that has been encrypted in the cloud? It would be helpful for him to clarify.

Once we have such a statement, the technical community can provide a view as to what the risks of various mechanisms to accomplish policy goals are. We’ve assuredly been around the block on this a few times. The law enforcement community will never obtain a perfect solution. They may not need perfection. So what’s good enough for them and what is safe enough for the Internet? How can we implement such a mechanism in a global context? And how would the mechanism be abused by adversaries?

The devil is assuredly in the details.

Hilary Clinton: A little improvement over making America break again

HIllary Clinton Many of us have experienced loss in our lives, and we get hit with the cruel irony that we don’t know what we’ve got until it’s gone. We Americans like complaining. To be sure there is plenty to complain about. You have your own list; I won’t write one for you. But things can get a lot worse for Americans than they are.

Donald Trump looks up to President Putin and envies China, because he sees an uncontested leader and hunger to win, regardless of rules, respectively. But that doesn’t mean we want to live in those countries, where people are subject to arrest without cause, where one cannot say what wants to say. These are countries that operate by the rule of man (and I do mean “man”) and not the rule of law, where might makes right, and where the ends justify the means. Putin took the Crimea because he could. He imprisoned and poisoned his opposition because he could. He has interfered with an American election because he could. China violates intellectual property rules and builds islands in the Pacific because they can. These are the ones Trump looks up to.

The American ideal is different. We don’t believe in kings, and we surely do not believe in thugs. We like our freedom, where government acts on the will of the People and not the will of an individual, and where it is constrained not only by the People, but by those who we elect through their oaths to uphold the Constitution, a document that guarantees freedom and fairness, that a person won’t be treated different because of sex, race, or religion. Our ideal extends the Constitution to cover other innate characteristics, such as sexual orientation. Fairness is something we hold dear.

I do not believe that Donald Trump understands any of this. He has spent his life cheating people out of money. To him, the ends will always justify the means. To him, the art of the deal is a matter of deceit, and knowing when to violate its terms. And he does so as long as he can get away with it. An agreement to him only binds him until he finds it inconvenient. Donald Trump will never deliver on his promises, and we know this because of all the broken promises of his past. He is vindictive, and spews hatred towards others. He does not know how to delegate responsibility, and he does not know how to accept responsibility for his mistakes. According to Trump, he’s never made a mistake.

Hillary Clinton lacks the charisma of her husband. She is not a visionary like Bernie Sanders. She is an incrementalist. She is a policy wonk, and she’s a bit nerdish. She will be challenged by a vociferous and resentful opposition. Under a President Hillary Clinton we will not see a Democratic House of Representatives. That will never be her mission. What we will see is steady leadership. Mostly status quo. Status quo means that we get mostly what we have.

And we have quite a lot. We have freedom. We have a functioning, if imperfect, support infrastructure. We have an innovative society. We have democracy. We have checks and balances. We have the right to practice whatever religion we want, so long as we don’t hurt others. Under a President Clinton we would have humility in leadership, and someone who is serious about trying to take a great America and make it better; not by a lot, but at least in the right direction. She is the type that will work to fix the potholes and leaks in the roofs. And she won’t promise more.

She will also deal honestly and ably with what crises hit her. No president is defined by his or her campaign platform, but rather how they react to the problems that are thrown at them. Hillary Clinton will do that will a cool head. We cannot say the same about Trump.

Image Courtesy: Gage Skidmore from Peoria, AZ, USA – Hillary Clinton, CC BY-SA 2.0