In justifying President Trump’s travel ban to the Supreme Court last month, his attorneys repeatedly referenced a confidential report. They told the Court that this “extensive” analysis of “every country in the world” resulted from a “worldwide multi‐agency review” and proves that the president did not act with religious animus. In a court filing, they said it was “thorough.” Yet they refuse to release it, and the information that they have released about it refutes their claim that it was extensive. In fact, it was far from rigorous.
In response to a lawsuit by the Brennan Center for Justice in New York, the government disclosed that its final secret report filed in September was just 16 pages with a one‐page attachment. Yet the president claims it reviewed “more than 200 countries,” meaning it covered each country in less than a tenth of a page. On a typical 600‐word page, that’s fewer than 60 words—significantly shorter than this paragraph—to review the identity systems, information practices, and security situation in every country in the world.
We now know that this 60‐word average is actually too generous for most countries because the government has said that the report included the information on the eight targeted countries and the explanation for the ban contained in the president’s 12‐page travel ban order. If it dedicated the other five pages solely to the non‐travel ban countries, this would leave just 16 words for each. “The Democratic Republic of the Congo” would use a third of its word allotment on its name alone.
Such a bizarre result raises the distinct possibility that the entire review of the non‐travel ban countries may have been included in the one‐page attachment to the report intriguingly entitled “assessment of countries’ information‐sharing capabilities and vetting procedures.”
In any case, to fully appreciate how absurd it is to claim that this 17‐page report was exhaustive, consider that the State Department issues an annual report on terrorism including details of the policies and situation in most countries in the world. Last year’s report was 447 pages. The travel ban has nine such factors that the government claims to have extensively studied, yet its entire 17‐page report is 4 percent as long.
Beyond its length, contradictions in the known contents of the report further raises the suspicion that the government might be misstating its conclusions. The president’s order tells us that the report laid out nine criteria against which it assessed every country, and it then summarizes the report’s findings for each of the banned countries. Yet in several cases, its findings show that countries on the list were assessed against stricter criteria.
For instance, the being‐a‐terrorist‐safe‐haven criterion was increased to having any terrorists active in the area for Chad, or being a source of terrorist threats for Iran—neither of which are terrorist safe havens, according to the State Department. Not having an electronic passport was increased to not having one that is recognized internationally for Somalia, while regularly refusing deportees—little cooperation—was increased to anything less than full cooperation with deportees for Libya.
These subtle raisings of the bar occurred even while nine actual terrorist safe havens got a pass, along with a dozen countries that regularly refuse deportees and dozens more that have no electronic passport at all. It appears that the government’s secret report arbitrarily raised the bar for travel ban countries.
The point is not whether these criteria are legitimate. What matters is whether the Supreme Court can believe the government’s claims about its report.
During oral arguments, Solicitor General Noel Francisco told Justice Sonya Sotomayor that the president’s animus against Muslims couldn’t have affected the process because the agencies were able “to construct and apply this neutral standard to every country in the world.” Sotomayor challenged him, asking why the report was not available for them to review. Francisco only responded that the justices “owe” the president “a very strong presumption that what is being set out there is the truth.”
Yet the length of the report by itself gives the justices a very good reason to conclude that the government’s report did not actually assess every country in the world in 16 words or less. At the same time, the inconsistency between the stated criteria and the criteria actually applied to the travel ban countries casts doubt on the claim that the report’s standard was, in fact, neutral.
Maybe the president could rebut this impression, but any presumption that he had in his favor at the outset should be forfeited based on what we know now. The best evidence indicates that his “extensive” review simply never happened.