By Aslı Ü. Bâli, University of California, Los Angeles

*This memo is part of POMEPS Studies 24: New Challenges to Public and Policy Engagement. Click here to download the entire publication as a free, open access PDF and to see each of the individual memos.

One of Donald Trump’s most troubling campaign promises was to establish a “Muslim registry.” What this Muslim registry idea actually means remains unclear. As a candidate, Trump made ambiguous comments suggesting that he would not rule out a Muslim registry (or database) that would extend to Muslim citizens and argued for “a total and complete shutdown on Muslims entering the United States until our country’s representatives can figure out what is going on.” In the aftermath of a truck attack on a Christmas market in Berlin, President-elect Trump suggested that his earlier proposals concerning Muslims had been vindicated.

Trump’s communications director for the transition, Jason Miller, clarified that President-elect Trump was referring to his plans to “suspend admission of those from countries with high terrorism rates and apply a strict vetting procedure for those seeking entry in order to protect American lives.” This “clarification” conflated two of Trump’s earlier promises – a “ban” on Muslims entering the United States and a “Muslim registry.” Once in office, President Trump issued an Executive Order banning individuals from seven Muslim-majority countries from entering the country. The Executive Order triggered protests at airports across the country and numerous challenges in federal district courts. One of those challenges resulted in a nationwide suspension of the Executive Order pending litigation to determine its constitutionality. Because the White House initially insisted that the order applied to lawful permanent residents (green card holders) and because it included an explicit directive to prioritize admission of some groups from these countries based on their religious identity, the Order may be vulnerable to reversal on due process and equal protection grounds, and religious discrimination.

While the elements of the Order limiting entry to the United States have received the lion’s share of attention, the Order also put in place a possible framework for moving forward with a Muslim registry. By ordering the adoption of new screening standards for visitors, requiring more extensive data concerning individuals’ beliefs and mandating the creation of new databases on all visitors to the United States, the January 27th Executive Order – if eventually implemented –could pave the way for a de facto Muslim registry. If limited to registering Muslim foreigners seeking to travel to the United States, such a framework would not be unprecedented. Indeed, the administration might be putting in place a revamped version of a recently discontinued Bush-era registration program by limiting its Muslim registry to visitors and certain categories of immigrants. That registry, the National Security Entry-Exit Registration System (NSEERS), failed conspicuously to achieve its avowed goals.

In November, then President-elect Trump met with Kansas Secretary of State Kris Kobach (a member of the Trump transition team) who was photographed holding a proposal entitled “Department of Homeland Security Kobach Strategic Plan For First 365 Days.” The visible portions of the first page of the proposal include a section entitled “Bar the Entry of Potential Terrorists” that calls for reintroducing and updating the National Security Entry-Exit Registration System (NSEERS), tracking visitors from “high risk areas” and adding “extreme vetting questions.”

Kobach was an author of the original NSEERS program while serving in the Justice Department under the Bush administration in 2002. NSEERS did effectively create a registry for some Muslims and did so in a way that remained under the radar for most Americans: male noncitizens over the age of 16 traveling to or present in the United States from 24 Arab or Muslim majority countries (plus North Korea) were registered.[1] Men from those countries were required to enter the U.S. at designated airports (rather than the airport closest to their destination) in order to be fingerprinted, photographed and interrogated. They were also required to check in with immigration officials at regular intervals and to depart only from designated airports.

For individuals already in the country when NSEERS was introduced, the consequences were severe. Men originally from the designated countries (except green card holders or U.S. citizens) were required to report for questioning before immigration officials. This aspect of NSEERS, known as “call-in registration” or “Special Registration,” sowed chaos amongst immigrant communities and proliferated new grounds for deporting those impacted. Because registration requirements did not exist at the time their original visas were issued, many were not on notice that the new registration rules applied to them. For example, a student who had obtained a visa to study in the U.S. prior to June 2002 would not have been informed of registration requirements, but might subsequently be deported for failure to comply when attempting to exit the country at the end of the academic year. As a result of the severity of the penalty for inadvertent noncompliance, there was a broad effort by civil liberties and immigrants’ rights organizations to spread the word about the new requirement.

The ensuing confusion, panic and trauma to long-standing immigrant communities was extensive. For example, when the first registration deadline approached in December 2002, over 400 individuals of Iranian origin in California who were rushing to comply with the new Special Registration rules were arrested. In New York, deportations hollowed out parts of the Pakistani immigrant community. Immigration offices were not staffed to effectively administer the program, creating massive delays, with huge lines of people trying to register by published deadlines and repeated cases of mistaken detentions and removal proceedings.

From 2002 to 2003, over 83,500 men were processed through Special Registration and more than 13,700 were placed into deportation proceedings as a direct consequence of voluntarily complying with the requirements. In this sense, NSEERS was not just a registry but also a program that multiplied the grounds for deporting men based on national origin. By contrast, NSEERS was highly ineffective at its intended goal of producing intelligence, yielding not a single terrorism-related prosecution during the decade it remained in place.

From the beginning, NSEERS was widely criticized for imposing serious immigration penalties on those already in the country and onerous and intrusive burdens on those seeking to visit. Moreover, law enforcement experts viewed the program as undermining effective counter-terrorism because profiling based on broad categories like national origin required vast resources and ran the risk of confusing signal and noise. As a result of sustained opposition and controversies concerning implementation, aspects of the program were suspended as early as December 2003 when “check in” requirements were dropped. But the requirement that travelers register at ports of entry and depart only from designated airports remained in place for eight more years, making travel from designated countries cumbersome and stressful.

Eventually, the introduction of other programs collecting biometric information from all visitors and at all airports rendered NSEERS registration requirements duplicative. On April 28, 2011, DHS announced that NSEERS had been suspended and the 25 designated countries had been delisted. In explaining the decision, the announcement terminating the program stated that the department would “seek to identify individuals and actions that pose specific threats, rather than focusing on more general designations of groups of individuals, such as country of origin.”

The 2011 DHS announcement ended the application of NSEERS but retained the regulatory framework for the program. As a consequence, Kobach’s proposal to update and reinstate NSEERS might have been a relatively simple step for the incoming Trump administration. Following the election, however, pressure mounted on the Obama administration to fully rescind the regulations. On November 21, a letter signed by 200 civil rights and inter-faith organizations was published calling on the Obama administration to rescind the regulatory framework for NSEERS. Ten days later, over fifty Democratic members of the House sent a letter to President Obama calling for NSEERS regulations to be repealed. The Obama administration eventually announced that it would dismantle the dormant program. According to a statement by a DHS spokesman, the department would remove the “outdated regulations” because they had determined “that NSEERS is not only obsolete, but that its use would divert limited personnel and resources from more effective measures.”

Repealing the regulatory framework for NSEERS may well have slowed the Trump administration’s ability to instantly recreate a targeted registry for immigrants traveling from Muslim majority countries, but it cannot prevent the creation of a similar program. While NSEERS was widely deemed counter-productive in preventing terrorism, it was never found unconstitutional. Indeed, attempts to constitutionally challenge the program failed with federal district courts across the country. In 2008, when a challenge reached the Second Circuit, that federal appellate court also ruled in favor of the program. Under current constitutional jurisprudence, the federal government’s authority over immigration allows for certain kinds of national-origin based discrimination at our borders. We do not yet know whether a categorical bar on entry for classes of aliens based exclusively on national origin will withstand scrutiny; the litigation in the Ninth Circuit may soon answer that question. But the creation of a de facto Muslim registry based on national origin, along the lines of NSEERS, has survived earlier challenges.

That said, the Trump administration may face novel constitutional hurdles regarding its preferred Muslim registry that did not arise in the case of NSEERS. The “extreme vetting questions” listed by Kobach on his proposal were clearly related to religious belief (including questions about Sharia, jihad and gender equality). A thinly veiled version of the same questions appeared in the January 27th Executive Order. For instance, a leaked draft of the Executive Order referenced “violent religious edicts” rather than Sharia and jihad. The language in the version of the Order that was eventually promulgated references screening for individuals “who would place violent ideologies over American law.” Though the administration’s vetting questions are designed, on their face, to create a registry by targeting groups based not on religion as such but on national origin, the embrace of religious profiling by Mr. Trump and his advisors may well have undermined the perceived constitutionality of that effort. A federal database registering all Muslims in the United States – including green card holders and citizens – would almost certainly constitute unconstitutional discrimination. Numerous prominent technology companies have vowed not to cooperate with federal efforts to build such a database. Indeed, the uproar following Trump advisor Carl Higbie’s comments concerning the internment of Japanese-Americans as a legal precedent for a Muslim registry shows that such an effort would meet with strong resistance.

Whereas the Bush administration disavowed religious profiling in its post-9/11 policies, Mr. Trump repeatedly stated his intention to specifically target the Muslim community both during the campaign and in the transition following the election. The ruling in the Ninth Circuit that upheld the temporary injunction on the January 27th Executive Order suggests that the same federal courts that found the NSEERS program constitutional might reach a different conclusion if the new registration system were determined to be based on religious animus. Further, because the U.S. now has an entry-exit system for all foreign visitors, the rationale for introducing an additional registry targeting a subset of visitors from Muslim-majority countries might be deemed less plausible. Because the announcement from DHS that repealed the regulations for the earlier registry explicitly states the department’s view that NSEERS is redundant, obsolete and an unjustified diversion of resources, the Trump administration might face a challenge persuading a court of the need for another comparable program.

Although there may be precedent for a version of Trump’s “Muslim registry,” the new administration’s explicit framing of its proposal as religious profiling may well undermine its ability to rely on that precedent.

Mr. Trump has also suggested that he would pursue broad surveillance of American mosques and Muslim American communities. On December 15, Republican Congressman Peter King met with the President-elect and told reporters afterwards that they discussed a proposal to create a federal Muslim surveillance program, modeled on a New York Police Department program that was ultimately terminated following a series of constitutional challenges. Such a program targeting Muslim citizens would likely face significant constitutional challenges for violating the right to equal protection guaranteed by the Fifth and Fourteenth Amendments as well as the First Amendment prohibition on interference with the free exercise of religion. To the extent that the surveillance and data-mining contemplated by Trump might require assistance from the tech industry, an additional obstacle may be the public pledge by a number of companies and individual computer engineers that they would refuse to cooperate with religious profiling.

Still, the NYPD’s intelligence division, with the assistance of the CIA, operated such a mosque surveillance program from 2002 until 2014 before it was disbanded, which suggests just how long illegal and discriminatory actions can endure before constitutional challenges and other forms of resistance prevail. In the end, much like NSEERS, the NYPD counter-terrorism surveillance policies based on religious profiling resulted in “not one actionable piece of intelligence,” according to New York Police Commissioner William J. Bratton. But the damage to American Muslim communities in New York had been done leaving a legacy of deep distrust in law enforcement agencies and a pervasive climate of fear. If President Trump decides to adopt a similar surveillance strategy nationwide, the damage would be much more extensive even if the program were ultimately deemed unconstitutional.

Aslı Ü. Bâli is professor of law at the UCLA School of Law and director of the UCLA Center for Near Eastern Studies.

[1] The countries designated for NSEERS were announced in four groups: (1) Iran, Iraq, Libya, Sudan, and Syria; (2) Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, the UAE, and Yemen; (3) Pakistan and Saudi Arabia; and (4) Bangladesh, Egypt, Indonesia, Jordan and Kuwait.

Understanding what a “Muslim Registry” might mean