Could President Trump really create a tracking system for U.S. Muslims?

Early in his campaign, President-elect Donald Trump proposed a “total and complete” temporary ban on Muslims entering the United States. He later said the ban would apply to immigrants from specific nations. At another point, Trump said he supported creating an immigrant “database,” raising fears in the Muslim-American community and beyond of a de facto registry system.

As Trump prepares to take office next month, immigration advocates, legal experts and Muslim-Americans are girding for a fight over immigration and national security policy.
Trump supporters are also watching closely, to see if he makes good on his campaign promise to create an “extreme vetting” program for immigrants from countries like Syria and Iraq.

“Over Thanksgiving weekend, my relatives in Ohio were asking me how likely a Muslim registry was,” said Shadi Hamid, a senior fellow at the Brookings Institution, who is Muslim. “The very fact that I had to reassure them and say it’s not likely was very troubling and scary.”

Since winning the election, Trump has not discussed his plans for a vetting system in detail, or mentioned his previous proposals for targeting Muslim immigrants.

But the questions remain: Will Trump create a tracking system for Muslims entering or living in the United States? Would such a vetting or registry system even be legal?

As a candidate, Trump said the U.S. government’s internment of Japanese Americans during World War II could serve as a precedent for sweeping immigration restrictions. Some of his supporters have also cited the internment camps in calling for a crackdown on immigrants from majority Muslim countries.

The Supreme Court in a 1944 ruling upheld the Japanese internment camps in Korematsu v. United States, but the ruling has been discredited by judges and politicians from both parties. And in 1988, President Ronald Reagan signed a law to compensate surviving Japanese-Americans who were incarcerated in internment camps. The law included an apology and $20,000 to each survivor.

Legal experts said a registry program targeting a specific religious group would violate equal rights and religious freedom protections guaranteed under the constitution.

And from a practical standpoint, implementing such a registry system would be nearly impossible, said Faiza Patel, the co-director of the Brennan Center’s Liberty and National Security Program.

“It’s absurd on so many different levels,” said Patel, who wrote a memo last month arguing that a Muslim registry would be unconstitutional. “For one thing how do you know someone’s a Muslim? Do you ask people? You can’t necessarily tell just from someone’s name.”

“I don’t see that any court would allow that to go forward,” Patel added.

It’s more likely that the Trump administration would try a different approach: reviving the National Security Entry-Exit Registration System, a Bush administration program created after the terrorist attacks on 9/11, said Shoba Sivaprasad Wadhia, the director of the Center for Immigrants Rights at Pennsylvania State University.

The system, known as NSEERS, was designed to track non-immigrant visitors to the U.S., such as tourists and students. Under the program, visitors were required to undergo a vetting process that included fingerprinting and interviews with law enforcement officials.

Eventually the program focused on male visitors, aged 16 and older, from 25 countries. But every country on the list, with the exception of North Korea, had a majority Muslim population — sparking criticism that NSEERS was aimed at Muslims and other minority groups.

“It was badly conceived and poorly implemented, with disastrous results,” said James Zogby, the president of the Arab American Institute.

The program registered 80,000 people, including thousands who were detained and interrogated, according to a 2012 report, without resulting in any convictions for terrorism-related activity.

The Obama administration delisted the program’s 25 countries in 2011, effectively ending the system. But NSEERS was never formally eliminated, meaning that it could be revived under the next administration.

Last month, 200 civil rights and immigrant advocacy groups urged President Obama to end the program before he leaves office, arguing that NSEERS was “ineffective as a counter-terrorism tool.”

“More than 13,000 men who complied with the program faced deportation charges. Families were torn apart, small businesses in immigrant neighborhoods closed their doors, and students discarded their educational aspirations,” the groups wrote in a letter.

NSEERS was thrust back in the spotlight last month after Kris Kobach, the Kansas secretary of state, and a rumored candidate to lead the Department of Homeland Security, met with Donald Trump after the election. Kobach was photographed entering the meeting with a sheet of paper that included a proposal to bring back the program.

The Trump transition team did not respond to a request for comment.

Some Trump supporters said they were watching for signals that the president-elect was serious about his campaign pledge to vet immigrants and visitors to the U.S. that pose a potential national security threat.

John Hajjar, the former co-chairman of American Middle East Coalition for Trump, a group that backed Trump during the campaign, said he believed that terrorist attacks had increased under President Obama.

“We want to see the president-elect target jihadists, not rank and file Muslims. This isn’t a witch hunt,” said Hajjar, a real estate developer from Massachusetts.

Trump’s critics are “trying to make Trump out to be someone who wants to round up one group of people, and that’s absolutely false,” said Hajjar, who said he had Lebanese- Christian grandparents who immigrated to the U.S. “He cares about the safety and well-being of all Americans, including Muslim-Americans.”

Other supporters said they hoped Trump would follow through with an “extreme vetting” program, as long as it doesn’t violate the constitution.

“A ban of a person based on their race, color or religion, I don’t think that’s acceptable to most people,” said Billy Shreve, a member of the Frederick County Council in Maryland. But “anyone that can’t be documented with certainty should not be allowed in the country,” Shreve said. “If Trump enacts anything that improves on what we have now, he has won.”

Immigration advocates said they were gearing up for a showdown with Trump over the issue, even though it remains unclear what direction his administration will take.

“There have been nearly half a dozen variations during the campaign, ranging from a complete and full ban on all persons who are Muslim to enacting a program like NSEERS,” Wadhia said.

Muslim-American “communities are aware and preparing for the possibility of a tracking program based on nationality, national origin and religion,” Wadhia said. “Whether or not these proposals are lawful will really depend on the scope and content.”

Correction: An earlier version of this article incorrectly spelled Shoba Sivaprasad Wadhia’s name.