There's been much made of Ban on admitting individuals from seven countries imposed by Trump's executive order. What hasn't been discussed much is how that list, which covers Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen, was compiled. The text of the executive order itself doesn't specifically name the countries. It refers only to US law.

And what law was that? Namely, the "Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015."

That's right. The seven countries included in Trump's executive order, which places a 90 day moratorium on the issuance of visas to people from "countries of concern," was not chosen arbitrarily. It came from the list of "countries of concern" that were named in bipartisan approved legislation signed into law by President Obama, and further implemented by his administration, specifically the Department of Homeland Security.

A good description of the how the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (hereafter the "VWP Terrorist Travel Prevention Act") operated to limit anyone who lived in or had traveled to countries covered by the Act, including those three (Libya, Sudan and Yemen) added by the Obama administration in February 2016, can be found at this FAQ web page of NAIC Action, an advocate for the the Iranian American Community.

The original version of the bill restricted visa-free travel to the U.S. for any citizen of a VWP country who, since March 2011, has traveled to Iraq and Syria – the primary states where ISIS operates – or any other country that the Department of Homeland Security designates as having a significant Foreign Terrorist Organization presence. The legislation was amended to add countries that are designated as State Sponsors of Terrorism to the restricted countries list (Iran, Sudan, Syria), and to expand the restrictions to include not just persons who traveled to these countries but also to prohibit citizens of VWP countries who are also dual nationals of these countries from participating in the program. [...]

The direct targets of the law include citizens of European Union or other VWP countries who also hold Iranian, Iraqi, Sudanese or Syrian dual nationality or who have visited these countries in the past five years. They are now required to apply for a visa in order to travel to the United States.

The law may potentially impact Americans who are dual nationals or have traveled to the “restricted” countries because the VWP operates on the basis of reciprocity. EU countries, for example, accept American travelers without a visa because we accepted EU travelers without a visa. However, because we now bar certain citizens from the VWP, the EU can respond by applying the same restrictions against Americans seeking to visit EU countries. As the bill targets dual nationals of Iran, Iraq, Sudan and Syria, it is possible that reciprocal measures would target dual nationals from those same countries living in the United States, including Iranian Americans.

It should be noted that the Visa Waiver Program or VWP never included the seven countries listed as "Countries of Concern" in Trump's executive order. Individuals from those countries (for example, Iran) were already subject to stringent VISA requirements in order to travel to the United States. The VWP Terrorist Travel Prevention Act made it harder for individuals living in nations covered under the VWP who held dual citizenship, or who had traveled to any country listed in the law or added to the list by the Department of Homeland Security, to travel to the United States visa free.

Further, that list that limited the issuance of visas to people who had traveled to Iran, Iraq, Syria, etc. under the Obama administration never included Saudi Arabia or Pakistan, two countries whose nationals we know were involved in terrorist actions against American citizens, including the 9/11 attack. Trump could have added them to his own list but chose not to do so. Why? Probably because his advisors wish to (1) use existing law to buttress Trump's actions under the executive order, and (2) both Saudi Arabia and Pakistan are our "putative allies" in the War on Terror, even though the Saudis financed Al Queda and ISIS, and Pakistan provided a safe harbor for Al Queda members and Taliban forces fighting the US military in Afghanistan, as well as murdering many innocent civilians as part of their continued war against the US backed regime there.

Would Trump have taken this step temporarily ban people from coming to the US from those seven countries without the existence of the VWP Terrorist Travel Prevention Act and the list prepared by the Department of Homeland Security under Obama? I cannot say. Trump is a wild card and may have simply issued a 90 day ban on some Middle eastern countries in any event. But it undoubtedly made it easier for him to issue his executive order naming the very same countries that were included in the VWP Terrorist Travel Prevention Act or added to it by Obama's DHS. Those laws and the prior actions of the DHS set a precedent for discriminating against people who reside in or visited countries that were deemed by previous administrations to be "state sponsors or supporters of terrorism" or otherwise potential risks to our national security.

Do I approve of Trump's "ban" of 90 days (for now) of individuals from Iran Iraq, Libya, Somalia, Syria and Sudan, and his 120 day moratorium (for now) refusing the admission of refugees from those same seven countries? No, I do not. I think it sends the wrong message at the wrong time and will result in a backlash against the US in Europe, the Middle East and the Muslim community at large throughout the world. However, I doubt it will provoke any additional animus toward our country than has already been generated by the illegal wars prosecuted in predominately Muslim nations by our government under both Presidents Bush and Obama.

I'm hopeful that our courts will find that Trump's executive order is an unconstitutional abrogation of power by the executive branch, but that is all I am - hopeful. The numerous executive orders that went unchallenged by Congress during the Bush and Obama years might make it difficult for any federal appellate court, including The US Supreme Court, to view this particular order as any more or less valid than previous ones that also claimed to be supported by statutes and the President's claimed authority under Article II of the Constitution.

In particular, I do not agree with the ACLU that Trump's actions violate the Establishment clause of the First Amendment (i.e., the one prohibiting an establishment of an official religion). The executive order on its face does not refer to Muslims or any other religion. It also extends to all nationals from those countries regardless of their religious faith or lack of one. Indeed I heard a Republican member of Congress on NPR this morning complaining about the ban because it effected a Christian family whose admission as refugees he supported. Second, we have discriminated against immigrants in the past who came from countries that were not predominately Christian (e.g., China and Japan).

In like manner, I don't think the executive order can be opposed on the basis that it calls for a future preference in immigration policy for "Christians," as that is not what the order says. It merely tasks the Secretary of State upon resumption of the US Refugee Admissions Program (USRAP) to:

[T]he extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual's country of nationality.

Under my reading of that provision, it would also include prioritizing the immigration applications of religious minorities who are not Christian, such as Shi'ites in Sunni dominated countries, etc., so long as the refugees in question have been persecuted by their governments as a result of their faith. For those reasons, I believe it would be a fool's errand to base a constitutional challenge to Trump's order on the First Amendment's prohibition against the establishment of religion.

We will just have to wait to see how this plays out. One thing is certain, however. A large part of Trump's base and many other Americans will view this "ban" as a legitimate protection against terrorism, one that was long overdo.

And who, besides politicians in both parties, has been ginning up the fear of Islamic terrorists over the last 16 years whenever it suited their purposes? The same media that is now outraged that Trump actually did what he he promised to do during his campaign. They laughed him off for months, even as as they made him a daily staple of their programming for ratings, such that his xenophobic message of fear and hate against Muslims was broadcast to millions. At the same time they trumpeted the experience of Hillary, the singular force behind our policies of regime change in Libya and Syria, a supporter of Israel's policy of "ethnic cleansing" against the Palestinians, and a woman who threatened to the possible use of nuclear weapons against Russia and military action against Iran. And now they want to take the high ground?

As always, the hypocrisy among our political and media elites never ceases to amaze me. Where were they during the Obama years when assassination by drone, even of US citizens became our official policy? Where were they when Congress and Obama extended the powers of the NSA, FBI etc. to delve into our private lives? Indeed, where were they when civil rights groups objected to the VWP Terrorist Travel Prevention Act? Absent. Silent.

I'd like to think that the boisterous objections to Trump's executive order made by the likes of Senators Schumer and Warren are based on something other than political expediency, but after the past year I find it difficult to believe their outrage is genuine, especially in light of the feeble efforts by Democrats in the Senate to oppose Trump's more extreme and radical cabinet appointments.

In our justifiable outrage against Mr Trump, let us not forget that he became President because of the high-handed actions of the elite Democratic Party establishment in rigging the primaries so they could run the worst presidential candidate in modern history as their nominee. Nor let us forget that their own policies when in power, though not often opposed by the media, were just as odious and outrageous when it came to prosecuting the War on Terror that has so venomously corrupted our collective American soul, and made us a pariah among nations. They shaped the conditions that led to the rise of someone like Trump and now the rest of us have to suffer the consequences of their failures, both strategic and moral.