ALL COMEDY IS CONSERVATIVE:

I don't use the word "malevolence" here lightly. As readers of my work know, I believe in strong counterterrorism powers. I defend non-criminal detention. I've got no problem with drone strikes. I'm positively enthusiastic about American surveillance policies. I was much less offended than others were by the CIA's interrogations in the years after September 11. I have defended military commissions.

Some of these policies were effective; some were not. Some worked out better than others. And I don't mean to relitigate any of those questions here. My sole point is that all of these policies were conceptualized and designed and implemented by people who were earnestly trying to protect the country from very real threats. And the policies were, to a one, proximately related to important goals in the effort. While some of these policies proved tragically misguided and caused great harm to innocent people, none of them was designed or intended to be cruel to vulnerable, concededly innocent people. Even the CIA's interrogation program, after all, was deployed against people the agency believed (mostly correctly) to be senior terrorists of the most dangerous sort and to garner information from them that would prevent attacks.

I actually cannot say that about Trump's new executive order--and neither can anyone else.

Here's how the order describes its purpose:

Section 1. Purpose. The visa-issuance process plays a crucial role in detecting individuals with terrorist ties and stopping them from entering the United States. Perhaps in no instance was that more apparent than the terrorist attacks of September 11, 2001, when State Department policy prevented consular officers from properly scrutinizing the visa applications of several of the 19 foreign nationals who went on to murder nearly 3,000 Americans. And while the visa-issuance process was reviewed and amended after the September 11 attacks to better detect would-be terrorists from receiving visas, these measures did not stop attacks by foreign nationals who were admitted to the United States.

Numerous foreign-born individuals have been convicted or implicated in terrorism-related crimes since September 11, 2001, including foreign nationals who entered the United States after receiving visitor, student, or employment visas, or who entered through the United States refugee resettlement program. Deteriorating conditions in certain countries due to war, strife, disaster, and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States. The United States must be vigilant during the visa-issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.

In order to protect Americans, the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles. The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law. In addition, the United States should not admit those who engage in acts of bigotry or hatred (including "honor" killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.

Color me skeptical that this is the real purpose. After all, if this is the real purpose, then the document is both wildly over-inclusive and wildly under-inclusive. On the over-inclusive side, it will keep tens of thousands of innocent refugees who have been subject to unspeakable violence outside of the protection of the United States on the vanishingly small chance that these people might be terrorists--indeed, to make it impossible for them even to apply for refugee admission if they are Syrian. It will prevent untold numbers of people about whom there is no whiff of suspicion from coming here as students, as professionals, as tourists. It overtly treats members of a particular religion differently from other people.

On the underinclusive side, the order wouldn't have blocked the entry of many of the people responsible for the worst recent terrorist attacks. There is, in fact, simply no rational relationship between cutting off visits from the particular countries that Trump targets (Muslim countries that don't happen to be close U.S. allies) and any expected counterterrorism goods. The 9/11 hijackers, after all, didn't come from Somalia or Syria or Iran; they came from Saudi Arabia and Egypt and a few other countries not affected by the order. Of the San Bernardino attackers (both of Pakistani origin, one a U.S. citizen and the other a lawful permanent resident), the Orlando shooter (a U.S. citizen whose parents were born in Afghanistan), and the Boston marathon bombers (one a naturalized U.S. citizen, one a green card holder who arrived in Massachusetts from Kyrgyzstan), none came from countries listed in the order. One might argue, I suppose, that the document is tied to current threats. But come now, how could Pakistan not be on a list guided by current threat perception?

What's more, the document also takes steps that strike me as utterly orthogonal to any relevant security interest. If the purpose of the order is the one it describes, for example, I can think of no good reason to burden the lives of students individually suspected of nothing who are here lawfully and just happen to be temporarily overseas, or to detain tourists and refugees who were mid-flight when the order came down. I have trouble imagining any reason to raise questions about whether green card holders who have lived here for years can leave the country and then return. Yes, it's temporary, and that may lessen the costs (or it may not, depending on the outcome of the policy review the order mandates), but temporarily irrational is still irrational.

Put simply, I don't believe that the stated purpose is the real purpose. This is the first policy the United States has adopted in the post-9/11 era about which I have ever said this. It's a grave charge, I know, and I'm not making it lightly. But in the rational pursuit of security objectives, you don't marginalize your expert security agencies and fail to vet your ideas through a normal interagency process. You don't target the wrong people in nutty ways when you're rationally pursuing real security objectives.

When do you do these things? You do these things when you're elevating the symbolic politics of bashing Islam over any actual security interest. You do them when you've made a deliberate decision to burden human lives to make a public point. In other words, this is not a document that will cause hardship and misery because of regrettable incidental impacts on people injured in the pursuit of a public good. It will cause hardship and misery for tens or hundreds of thousands of people because that is precisely what it is intended to do.

To be sure, the executive order does not say anything as crass as: "Sec. 14. Burdening Muslim Lives to Make Political Point." It doesn't need to. There's simply no reason in reading it to ignore everything Trump said during the campaign, during which he repeatedly called for a ban on Muslims entering the United States.

Even while he was preparing to sign the order itself, he declared, "This is the 'Protection of the Nation from Foreign Terrorist Entry into the United States.' We all know what that means." Indeed, we do. This document is the implementation of a campaign promise to keep out Muslims moderated only by the fact that certain allied Muslim countries are left out because the diplomatic repercussions of including them would be too detrimental.

Many years ago, the great constitutional law scholar Charles Black Jr., contemplating the separate but equal doctrine, asked:

does segregation offend against equality? Equality, like all general concepts, has marginal areas where philosophic difficulties are encountered. But if a whole race of people finds itself confined within a system which is set up and continued for the very purpose of keeping it in an inferior station, and if the question is then solemnly propounded whether such a race is being treated "equally," I think we ought to exercise one of the sovereign prerogatives of philosophers--that of laughter.

I think we can, without drawing any kind of equivalence between this order and Jim Crow, make a similar point here: Is this document a reasonable security measure? There are many areas in which security policy affects innocent lives but within which we do not presumptively say that the fact that some group of people faces disproportionate burdens renders that policy illegitimate. But if an entire religious grouping finds itself irrationally excluded from the country for no discernible security benefit following a lengthy campaign that overtly promised precisely such discrimination and exactly this sort of exclusion, if the relevant security agencies are excluded from the policy process, and if the question is then solemnly propounded whether the reasonable pursuit of security is the purpose, I think we ought to exercise one of the sovereign prerogatives of philosophers--that of laughter.

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