True menace or 'straw man'? Tech debates Trump's Muslim registry idea.

Depending on its specifics, experts say, the final policy could be both constitutional and precedented – even if critics find it offensive and ineffective.

Gary Cameron/Reuters/File
Members of MoveOn and DRUM march past the White House during a protest against the then-active Muslim registry program, the National Security Entry-Exit Registration System (NSEERS).

An online pledge signed by nearly 600 technology workers and firms begins with an epigraph from St. Louis-based journalist Sarah Kendzior: "Write a list of things you would never do. Because it is possible that in the next year, you will do them."

For the tech engineers, designers, and other US-based professionals who signed onto the pledge, one of the things they would never do is build a religion-based people-tracking database for the government – despite President-elect Donald Trump’s calls, before the election and since, to target Muslims for special restrictions on travel and migration.

As executives from Silicon Valley are slated to meet with Mr. Trump in New York on Wednesday, however, there is no consensus among technology professionals as to whether the threat is as dire as some suggest. Trump has floated a range of ideas, from a "total and complete shutdown of Muslims entering the United States," to "extreme vetting" of each immigrant’s ideology, or registration based on national origin.

The Intercept reported Monday that it had asked nine American tech firms if they would rule out participating in the creation of a national Muslim registry. Only one, Twitter, responded that it would refuse to help with such a project. A spokesperson for Facebook declined to comment on the inquiry, then inadvertently included a reporter on an email describing the Muslim registry line of questioning as tantamount to "attacking a straw man," as Nitasha Tiku reported Tuesday for BuzzFeed News.

Ms. Tiku argued that the prospect of a Muslim registry is not a straw man because of past comments on the topic by Trump and his advisers, including repeated chances to clarify the incoming administration's position.

Depending upon the specifics of the policy his administration devises, however, the final product could be both constitutional and precedented, experts say – even if critics find it offensive and ineffective.

Following the terrorist attacks on Sept. 11, 2001, under President George W. Bush, the US implemented the National Security Entry-Exit Registration System (NSEERS), which required certain male noncitizens from select countries to undergo fingerprinting, photographing, and interrogation. Upon its termination under President Obama, in 2011, the Migration Policy Institute called NSEERS "one of the most controversial immigration programs implemented in the wake of the 9/11 terrorist attacks," noting that it had been criticized by a variety of civil and human rights groups, lawmakers, and even a United Nations committee.

"Specifically, NSEERS was censured for its focus primarily on nationals of Muslim-majority countries, its alleged inability to identify terrorist threats, and the strict legal and immigration consequences put in place for participant noncompliance," Muzaffar Chishti and Claire Bergeron wrote for the Migration Policy Institute.

More than 80,000 men and boys over age 16 from 25 countries where terrorist organizations operate – including Iraq, Iran, Afghanistan, Saudi Arabia, and elsewhere – were swept up for monitoring and registration. The program resulted in penalties, fines, and deportation, but not a single reported terrorism-related conviction.

The American Civil Liberties Union (ACLU) promised immediately after the election that it would take Trump to court if he attempts "to implement his unconstitutional campaign promises." But legal experts say simply reinstating the NSEERS program would pass constitutional muster, as Politico reported.

Peter Spiro, a professor at Temple University Beasley School of Law in Philadelphia, says many of the constitutional protections that apply in other legal situations do not apply in the "parallel universe" at the border. Discrimination on the basis of national origin is typically illegal, but not in the immigration context, so an NSEERS-type program would likely survive a legal challenge, he says.

"It’s terrible policy, zero counterterrorism value," Professor Spiro told Politico, "and yet, in this parallel universe, you know, constitutional universe that applies to immigration law, pretty constitutional."

Others suggest, though, that Trump's more extreme religion-based policy ideas, if implemented, could run afoul of various constitutional provisions, even in an immigration context, as Politico's Corey Brettschneider wrote in August.

In a letter to the eight companies that did not answer The Intercept's question – Google, Apple, Microsoft, IBM, Facebook, Booz Allen Hamilton, CGI, and SRA International – a group of 22 advocacy groups argue that technology companies should act preemptively to send a clear message.

"We believe it is a great sign of corporate responsibility and common decency for corporations to ensure their resources are not used to support bigotry and discrimination," they wrote. "An important first step would be for [company name] to publicly refuse to help build a Muslim registry."

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