published Nov 21st 2016, 11:07 am, by Francis Wilkinson

(Bloomberg View) —
Donald Trump plans to appoint opponents of Islam, a religion practiced by roughly 1.6 billion people, to top positions in his administration. Both Stephen Bannon, whom Trump said he will make his chief White House strategist, and Lt. Gen. Michael Flynn, whom Trump said he will appoint as national security adviser, appear invested in a “clash of civilizations” narrative that demonizes Islam.

The implications go beyond foreign policy. According to an interview that Kansas Secretary of State Kris Kobach gave last week to Reuters, he’s now advising the presidential transition team in Trump Tower. Specifically, Kobach told Reuters that he’s promoting something like a Bush-era policy adopted after the Sept. 11, 2001, attacks: the National Security Entry-Exit Registration System, which registered Muslim visitors to the U.S.

Kobach worked on it when he was in the Bush Justice Department. The program required male visitors over the age of 16, from 24 Muslim-majority countries, including those on student, work or tourist visas, to register. To head off objections that the policy was singling out people based on religion, officials included North Korea as the 25th nation on the list. Thus, instead of being a “Muslim register,” upon which American courts might cast a suspicious eye, it was technically geography based, targeting men from nations linked to terrorists.

In an e-mail, Yale Law School professor Muneer Ahmad said, “Several courts upheld that program in the face of constitutional challenges.”

The system, which started in 2002, was abandoned in 2011. A 2012 report by a civil-rights group at Penn State’s Dickinson School of Law stated: “More than 80,000 men underwent call-in registration and thousands were subjected to interrogations and detention, wasting taxpayer dollars through this counterproductive response to September 11th which has not resulted in a single known terrorism-related conviction.”

During his campaign, Trump briefly proposed a database of U.S. Muslim citizens. He repeatedly asserted, without evidence, that American Muslims were aware of the terrorist plot that left 14 dead and 22 wounded in San Bernardino.

“They’re not turning over the people,” Trump said, “and they know they are. If you look at San Bernardino as an example, San Bernardino, they had bombs all over the floor of their apartment. And everybody knew it, many people knew it. They didn’t turn the people over. They didn’t do it.”

While the Obama and Bush administrations sought to delegitimize Islamophobia, Trump has aggressively stoked it. Will Trump and his team be content merely to reestablish a failed program from the Bush administration? Or will they push for aggressive action against Muslim-Americans as well as visitors?

Violating the constitutional rights of Muslim citizens wouldn’t be easy. “I don’t see a scenario where a court upholds registration imposed on American citizens,” e-mailed David Martin, an international law professor at the University of Virginia and a former principal deputy general counsel at the Department of Homeland Security. “And I don’t know of any statutory authority for selective citizen registration, as opposed to that for aliens.”

However, Trump’s authoritarian impulses, including his penchant for propaganda intended to isolate specific minority groups, suggest that fealty to constitutional rights is not a high priority. Safeguarding civil rights is not Kobach’s thing, either. A relentless and longtime promoter of voter-fraud myths, he has a record that includes what the Kansas City Star called “ugly and unsubstantiated attacks.”

American Muslims recognize the danger, but their population is small, little more than 3 million, and their vulnerability is great. If a candidate who won election despite going too far repeats that pattern in office, Muslims may become an early test case of how much Trumpism the nation’s democratic shoulders will bear. As president, Trump will have power to shape events, not just comment on them.

It’s worth noting that virtually anyone can claim to be a Muslim, including any of the Smiths, O’Connors, Rodriguezes and Cohens who would be appalled by the notion of a religious registry. While militant Islam is a public affair, theological Islam is private. There is no official bureaucracy to determine who has properly converted to the faith.

If Trump overreaches, civil libertarians from left, right and center will be tested. If they respond patriotically, and defend religious freedom and American pluralism, Trump’s crusaders may discover more “Muslims” in the fabric of America than even their wildest, dampest fevers could predict.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Francis Wilkinson writes editorials on politics and U.S. domestic policy for Bloomberg View. He was executive editor of the Week. He was previously a national affairs writer for Rolling Stone, a communications consultant and a political media strategist.

To contact the author of this story: Francis Wilkinson at fwilkinson1@bloomberg.net To contact the editor responsible for this story: Katy Roberts at kroberts29@bloomberg.net

copyright
© 2016 Bloomberg L.P