“Extreme Vetting” Might Also Include GPS Ankle Monitors to Effectively Track
WASHINGTON, D.C. (January 27, 2017): President Trump’s new executive order, which singles out Muslims, is clearly constitutional and is backed by many long-standing legal precedents, notes public interest law professor John Banzhaf, the author of a lengthy legal analysis.

 

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Moreover, he suggests, in addition to what the President is calling “extreme vetting” for Syrian refugees and other suspicious Muslims seeking admission, Trump might want to consider using ankle bracelets – as Germany has just done, and Norway is considering – which use the GPS system to help monitor their movements effectively, and very inexpensively, in real time.

One simple reason why our country has frequently been able to single out people by race, nationality, and perhaps even religion for immigration purposes is that we can, because not all the rights guaranteed by the Constitution apply to non-Americans outside the country.

Under what has been called the Plenary Power Doctrine, at least some of the protections guaranteed by the U.S. Constitution – and specifically the Equal Protection clause which generally prohibits discrimination on the basis of factors like race, ethnicity, religion, etc. – do not apply to non-citizens living abroad and seeking admission to the U.S.

The 1924 Immigration Act (targeting those from Southern and Eastern Europe), the Chinese Exclusion Act (aimed at Chinese), and President Jimmy Carter’s 1989 order banning virtually all Iranians from the U.S., are recent examples of valid immigration restrictions based upon national origin.

A much more recent example is NSEERS which mandates port-of-entry registration for nationals of Iran, Iraq, Libya, Sudan and Syria. Also, some non-citizens already in the U.S. have been required to register in person at an INS office if they come from certain countries – 24 of the 25 of which are predominantly Muslim. The program also required periodic re-registration. Although the program was indefinitely suspended, it is still in existence.

As another example, our own TSA has engaged in a form of religious profiling, selecting for secondary screening all citizens of 12 named countries. Aside from two communist nations, all of the others have large Muslim populations, including 8 which are at least 90% Muslim. Since this could hardly be just a coincidence, it provides still another example where America has openly engaged in profiling based upon religion.

Thus, if Muslims may constitutionally be completely banned from entering the U.S., it would appear that a wide variety of restrictions could be placed upon any whom the U.S. does permit to be admitted. This, as noted, has already included the need to register and report, and to be subjected to secondary screening by the TSA. Here’s another alternative.

Another possibility, especially in cases where a refugee’s background and possible identity as a terrorist cannot be reliability determined, and their status as a Muslim creates enough anxiety such that they would ordinarily not be admitted, there might be an alternative to completely refusing them admission, or routinely admitting them and then taking a chance that they might be a terrorist.

Thus, rather than barring such Muslims, or ignoring the risks posted by admitting Muslim refugees about whom there isn’t any conclusive evidence, some – especially young males with, for example, prior criminal convictions and/or who have recently visited Syria or other suspect areas – could be given a choice of not being admitted, or of agreeing to wear a ankle GPS-based monitor. For this there is also precedent.

In what may be a harbinger of measures the Trump administration will consider to permit suspicious refugees to be easily monitored, Germany has agreed to require refugees who are not properly documented, or are otherwise thought to pose a security threat, to wear GPS ankle monitors so that their locations can be continuously tracked 24/7 in real time.

Germany’s interior and justice ministers, representing the two blocs in Chancellor Angela Merkel’s ruling coalition, agreed on this mandatory electronic tracking to increase surveillance of suspicious immigrants in the wake of the Christmas market attack in Berlin in which a failed Tunisian asylum seeker – who was under suspicion but could not be effectively monitored – killed 12 people.

Under prior German law, only people already arrested and freed on bail can be forced to wear ankle monitors. Under this new agreement, the law would apply to all potential terrorists hiding among the million-plus refugees who came to Germany over the last 18 months.

This step is considered particularly significant because Germany boasts some of the world’s toughest privacy laws. But, since the horrendous Christmas attack, lawmakers have sought to re-adjust the country’s balance between security and privacy, with an ever growing emphasis on security. Perhaps the U.S. will consider doing the same.

Norway – and perhaps other governments also – is investigating the possibility of putting ankle monitors on some asylum seekers in an effort to prevent terror attacks. Such monitors are also used routinely in the U.S. by ICE – which has over 9,000 in operation at any given time.

The Berlin Christmas terrorist was able to move freely around Germany, despite being identified beforehand as a terror threat, because police did not have enough evidence for an arrest, nor enough manpower to monitor his movements, or the movements of others like him.

Ankle monitors would solve this very problem of people only suspected of terrorist intentions, whom law enforcement authorities are unable to effectively monitor – a problem which has led to successful deadly terrorist attacks in several nations, says Banzhaf.

In summary, while there may be valid arguments against any program which singles out Muslims or those from certain Muslim-majority countries for different treatment, unconstitutionality is not one of them. Even a total ban, much less various lesser restrictions such as mandating GPS trackers, would be legal, says Banzhaf.