Trump's Inside Team Tightens Travel Ban to Avoid Constitutional Objections; Leaves National Security Council Out in the Cold

Donald Trump’s controversial executive order banning travel from seven Muslim-majority countries is being tightened up to get around legal and constitutional objections with minimal input from the National Security Council, the Guardian has learned.

The White House policy director, Stephen Miller, is at the helm as the process for refugee and immigration policy is going through the domestic policy council, which does not include most of the government’s foreign policy or security-related agencies. 

Trump made clear at his chaotic 77-minute press conference on Thursday “we’re issuing a new executive action next week that will comprehensively protect our country” at the same time as fighting the executive order which was blocked by the courts.

The goal of the new order is to bolster a signature initiative against ongoing legal and constitutional scrutiny, rather than revise it in a substantive fashion, relax its restrictions or consider any deleterious consequences it has on national security, according to Guardian sources.

The process means domestic political concerns are given greater priority and consideration of their national security impact is marginalized despite the impact on US relations with much of the world.

Observers consider the NSC’s diminished role symptomatic of Trump’s approach to governance and expressed alarm that Trump has not corrected course.

More than 1,000 US diplomats have signed a dissent to the travel ban Trump issued last month, which is currently blocked by the courts, objecting on the grounds that it will have a deleterious impact on the US’s security and international reputation. Their signatures came before the current process of revision through the DPC, on which the state department does not have a seat.

Though sources cautioned that deliberations on the new order are fluid and ongoing, the initial discussions of the imminent order contradict the justice department’s promise to the ninth circuit court of appeals of a “substantially revised executive order”.

Activists have been bracing for revisions that add more countries to the ban, either from the Muslim world or from outside it, in order to soften its edges. But the early White House deliberations on a revamped executive order have focused on the seven nations already included in the ban, not additional ones or fewer. Those countries are Iraq, Iran, Libya, Somalia, Syria, Yemen and Sudan.

Officials working on the next order have signaled their intent to make a stronger case for why the ban needs to apply to the seven countries. That intent stems from an attempt to overcome mounting legal scrutiny and make the order seem both less arbitrary in its particulars and something other than a “Muslim ban” in its effect.

Officials are also belatedly examining refugee screening procedures worldwide, both as they existed under Barack Obama and currently.

In addition to the legal hurdles Trump’s ban faces, it has led to substantial international acrimony. Both Iraq and Iran have publicly mulled retaliatory measures against Washington. 

Some see the reduced role of the National Security Council over the issue as a contributing factor behind the haste in the order’s drafting and the international opposition it has received.

“If an action is taken domestically that has an international consequence, it should be flowed through the NSC. By not doing so, you end up exactly where you did the last time, with the alienation of allies in Europe and the Islamic world,” said David Rothkopf, author of a history of the NSC, who considered the NSC’s diminishing relevance a sign that “a small clique of loyalists” dominate Trump’s policymaking process.

“The state department takes a strong stance on the immigration issue and the White House, when it sort of goes to immigration 2.0, cuts them out altogether.”

Ronald Newman, the former director for human rights and refugee protection on the National Security Council under Obama, said that refugee policy took “months” to craft each year, with the NSC convening the intelligence agencies and a variety of foreign and domestic-focused departments, from the Department of Health and Human Services to the state department.

Considering the new administration’s approach, he said: “It does sound more political. The worrisome thing is, it’s hard for me to believe that any process that factors in the relevant concerns, the foreign policy or the domestic ones, could have occurred in the five days it took to issue that executive order,” said Newman, who left the NSC in October.

Beyond the executive order process itself, the National Security Council is in turmoil.

Trump on Monday fired Michael Flynn, his national security adviser and the council’s chair, following revelations that Flynn discussed sanctions easement with Russia’s US ambassador and misled Vice-President Mike Pence about the conversation. An intended replacement, retired vice-admiral Robert Harward, turned down the job, citing family issues in a statement; CNN reported Harward had privately called the position a “shit sandwich”.

The White House strategy chief, Steve Bannon, denounced as a white nationalistwho used to run the hard-right Breitbart news service, runs another internal group within the White House. It is called the Strategic Initiatives Group (SIG), and is considered a rival power center, one that has left current and former officials wondering where the true policymaking authority for vital security challenges lies. At one point SIG was listed on an internal White House organization chart as connected by a parallel line to the NSC.

Before Harward took himself out of the running for national security adviser, Colin Kahl, the former security adviser to Joe Biden, said the effectiveness of the next national security adviser depended in part on “how successful he is in shutting down parallel national security structures in the West Wing, most notably Bannon’s Strategic Initiatives Group”.

Rothkopf added: “The NSC is being marginalized in favor of Bannon, [Trump son-in-law Jared] Kushner, the SIG, et cetera, and in favor of a handful of domestic policy advisers.”

White House officials did not respond to a request for comment.