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Eli Kantor is a labor, employment and immigration law attorney. He has been practicing labor, employment and immigration law for more than 36 years. He has been featured in articles about labor, employment and immigration law in the L.A. Times, Business Week.com and Daily Variety. He is a regular columnist for the Daily Journal. Telephone (310)274-8216; eli@elikantorlaw.com. For more information, visit beverlyhillsimmigrationlaw.com and and beverlyhillsemploymentlaw.com


Tuesday, April 04, 2017

Why Trump, Against His Instincts, Spared Iraq From the Travel Ban

Wall Street Journal 
By Tamer El-Ghobashy, Peter Nicholas, Felicia Sschwartz and Ben Kesling
April 03, 2017

President Donald Trump’s national-security team had many reasons to be wary of his travel ban aimed at seven majority-Muslim nations, even though it followed through on a signature campaign pledge.

They had been left out of the deliberations; there were concerns the executive order couldn’t pass muster legally; and they disagreed with some of its provisions—above all the inclusion of Iraq, a key ally in the fight against Islamic State, among countries whose citizens were temporarily denied entry in a bid to prevent terrorists from coming to the U.S.

When federal-court rulings put the executive order on hold in February, the national-security team saw an opportunity to test their collective clout, and Iraq’s leaders to make their case.

In meetings in Baghdad, Washington and Munich, officials including Defense Secretary Jim Mattis, Secretary of State Rex Tillerson and Homeland Security Secretary John Kelly talked through the travel ban and laid down arguments for a significantly revised one that could address Mr. Trump’s terrorism concerns but align better with national-security strategy and stand up in court.

Throughout the process, they kept private their discussions, both with Iraqi leaders and with the mercurial new president, so as not to ratchet up public pressure on Mr. Trump while they prodded him toward action.

Ultimately, Mr. Trump accepted changes to his travel order, including leaving Iraq out of it. For the first time in his short period in office, Mr. Trump moved from his preferred option to something less sweeping. Yet he immediately complained to his staff that a replacement order was “watered down.” Days after agreeing to it, he told supporters at a rally in Tennessee that he had followed “the lawyers” but thought his original was better.

One of many unknowns of the Trump administration is how a president with no governing experience, and in particular no military or foreign-affairs experience, would interact with advisers steeped in such matters. The story of the travel ban shows a president who proved willing to listen, even defer, to a parade of advisers pushing a different line, yet one who remained confident in his own instincts.

Mr. Trump signed the executive order just one week into his presidency. It barred Syrian refugees indefinitely and suspended all immigration for 90 days from “terror prone” Iran, Iraq, Yemen, Somalia, Sudan, Libya, and Syria. The seven had been singled out for special treatment by Congress and the Obama administration, imposing stricter rules on certain foreigners looking to come to the U.S.

Mr. Mattis, whose Marine Corps career included overseeing the wars in Iraq and Afghanistan as head of the U.S. Central Command, went to the Pentagon that day expecting to see Mr. Trump sign an order on military readiness. Fifteen minutes before the ceremony began, Mr. Mattis learned that a second order would be signed, one that suspended travel to the U.S. by Iraqi interpreters, people whose safety is of paramount importance to the U.S. military in Iraq.

The former general hadn’t been consulted. He stood silently as the president signed the order.

President Trump signed his order limiting travel for Iraq and six other nations after one week in office, setting off a controversy that led to a revised order omitting Iraq; both ran into trouble in court.

U.S. Ambassador to Iraq Douglas Silliman spent hours on the phone with Iraqi Prime Minister Haider al-Abadi the next day, while also struggling to learn the full scope of the ban.

“The impact of the Executive Order will be felt disproportionately here,” Mr. Silliman cabled the State Department. He said Iraqi legislators and military officers were baffled by the inclusion of Iraq, and warned “it would increase resentment of the U.S. throughout the Muslim world.”

Mr. Silliman declined to comment on specifics of the discussions, saying only that he was in frequent contact with Iraqi officials and Washington.

Brett McGurk, the State Department’s coordinator of the drive to defeat Islamic State, promised Mr. Abadi the issue of his country’s inclusion in the travel ban would be resolved, according to a person familiar with the talks.

Mr. McGurk, an Obama appointee kept aboard by the Trump administration, said Mr. Mattis would be visiting Iraq soon and urged Mr. Abadi not to follow an Iraqi parliament recommendation to bar U.S. citizens from entering, the person said. He didn’t. Mr. McGurk declined to comment.

In the U.S., protesters swarmed airports and lawsuits challenged the ban, including one in Brooklyn and one in Seattle filed by Washington state. A week after the signing, the federal district judge in Washington state’s suit blocked implementation of the order nationwide. About a week later, a federal appeals-court panel in San Francisco declined to overrule him and reinstate the ban.

The day of the appellate ruling, Messrs. Trump and Abadi spoke by phone for about 15 minutes. Mr. Abadi brought up the executive order at the end of the conversation, according to a person familiar with the call, telling Mr. Trump the restriction on travel by Iraqis would undermine the shared goal of a secure and prosperous Iraq.

Mr. Abadi told Mr. Trump the executive order would affect pilot training, visits of military officers to the U.S. and study by Iraqi students in American universities, the person familiar with the call said—adding that the president replied he would speak to Mr. Tillerson, find a solution and sort it out.

A White House summary of the call didn’t mention the travel-ban discussion or Mr. Trump’s pledge to find a solution.

A little more than a week later, Mr. Abadi met with Vice President Mike Pence during a security conference in Munich, and among other topics urged the vice president to convey his displeasure with the travel ban to Mr. Trump.

An aide to Mr. Pence recently confirmed to The Wall Street Journal that Mr. Abadi raised the issue of Iraq’s removal from the travel ban during a bilateral meeting in Munich. Mr. Pence listened but made no commitments to the prime minister, the aide said, but he did relay Mr. Abadi’s concerns to others in the Trump administration as a revised order was being shaped.

An Iraqi summary of the conversation didn’t mention the discussion of the travel ban. Neither did a summary issued by the White House.

Mr. Mattis, visiting Iraq two days later, assured Mr. Abadi the issue would be rectified, said a person familiar with their discussions.

“The good thing is that it became clear that the key American establishment, including defense, foreign and national-security sides, were for the decision to remove Iraq,” said Abdulbari al-Zebari, head of the foreign-relations committee in Iraq’s parliament.

Mr. Tillerson also spoke with Mr. Abadi three days later, by telephone, and committed the U.S. to continuing support in the fight against Islamic State and efforts to stabilize the nation once the extremists were defeated, a news release from Mr. Abadi’s office said. What it didn’t mention was that Mr. Tillerson also listened to Mr. Abadi’s concerns about the travel ban, according to person familiar with the call. This person described the secretary of state as a “sympathetic listener.”

A spokesman for Iraqi Foreign Minister Ibrahim Jaffari said Mr. Jaffari told the U.S. ambassador shortly after the travel order that Iraq “does not understand the reason behind such a decision, and Iraqis are victims of terrorism, not perpetrators of it.” The spokesman, Ahmed Jamal, said conversations with other U.S. officials over Iraq’s inclusion in the ban continued for weeks.

Mr. Trump’s national-security team mostly stayed out of the headlines, but Messrs. Tillerson, Mattis and Kelly all were frequent visitors to the Oval Office. In those visits, each made his case to the president for revamping the travel ban.

On March 4, Attorney General Jeff Sessions and Mr. Kelly spoke with one voice during a roughly two-hour session with Mr. Trump at his Mar-a-lago resort in Florida.

At the meeting, Mr. Sessions, accompanied by his chief of staff, walked the president through a proposed new executive order, drafted by the White House counsel’s office in consultation with the Justice Department’s Office of Legal Counsel and others.

Mr. Tillerson, in other discussions, and others argued that Iraq didn’t belong on the list for three main reasons: It wasn’t a state sponsor of terror, it had a functioning U.S. embassy, and it had been routinely sharing security intelligence with the U.S. since 2008.

In addition, Mr. Trump’s rationale for the ban was to allow time to upgrade the vetting of travelers, but Iraqis were already relatively easy to authenticate because they had to submit to biometric documentation to get passports.

The proposed new travel ban omitted Iraq, although Baghdad agreed to implement enhanced travel documents and accept the return of any citizens deported from the U.S.

Mr. Trump wasn’t happy with the idea of changing the order. The day before he agreed to it, he had a heated conversation with his general counsel, Don McGahn, in the Oval Office over what the president saw as a watering down of his order, according to people familiar with the matter. The next day, Mr. McGahn joined the group at Mar-a-Lago for dinner to walk through the bill.

After the meeting at Mar-a-Lago, Mr. Trump reluctantly supported a revised order, one that would soon run into its own, still-unresolved court obstacles.

Mr. Trump signed the revised order in the Oval Office on March 6. There were no reporters present. The only photo documenting the moment was taken by press secretary Sean Spicer.

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