SALT LAKE CITY — The first U.S. Supreme Court debate over President Donald Trump’s so-called travel ban took place this week, and while justices won't make a ruling until June, the decision is playing out at a time in which the refugee crisis in one of the impacted countries, Syria, may be getting worse.
The justices heard arguments Wednesday over the the administration’s ban on travel from five countries with majority Muslim populations — Iran, Libya, Somalia, Syria and Yemen. This follows U.S. missile strikes this month in Syria in retaliation for a reported chemical weapons attack near Damascus.
While missile strikes may be exacerbating the refugee crisis in Syria, the United States has accepted just 11 Syrian refugees this year, compared to over 15,000 in 2016 and over 3,000 in 2017, according to State Department figures.
All of which leads to a pressing question: what obligation, if any, does America have to refugees fleeing countries where the United States is engaged militarily?
The ‘Pottery Barn rule’
There is no legal obligation or provision in international law that requires a country to take in refugees, even in a case of war, says Ryan Crocker, who has served as a U.S. ambassador to Afghanistan, Iraq, Pakistan, Syria and Lebanon.
But despite the lack of legal obligation, Crocker says that from 1945 onward, America has played a role of “international leadership" in refugee resettlement from countries where U.S. military forces were directly involved.
As the Second World War in Europe drew to a close, for example, American ground troops were given orders to be on the lookout for refugees, “to bring them in, feed them, bathe them, and keep them safe," Crocker says. Between 1945 and 1950, the U.S. admitted roughly 350,000 Europeans.
In the aftermath of the Vietnam War, the U.S. resettled refugees from South Vietnam who feared for their lives after the capture of Saigon by the Viet Cong ended the war in April 1975.
In anticipation of a catastrophic refugee crisis, the Indochina Migration and Refugee Act was signed into law in May 1975. The act provided over $400 million for the evacuation of 130,000 South Vietnamese from their home country, and their resettlement in the United States.
"It was a watershed moment for the United States in dealing with refugees displaced as a consequence of U.S. military efforts," says Jessica Darrow, a refugee studies lecturer at the University of Chicago School of Social Service Administration.
The Refugee Act of 1980 enlarged upon the 1975 legislation by standardizing resettlement services for all refugees admitted to the United States. This act became the legal basis for today’s U.S. Refugee Admissions Program.
The policy remained consistent in its approach until the 9/11 terror attacks, when the refugee program was temporarily suspended, and then reinstated with new security protocols and lower admission rates.
Serena Parekh, associate professor of philosophy at Northeastern University and author of "Refugees and the Ethics of Forced Displacement," says 9/11 had a profound impact on U.S. attitudes toward refugee resettlement.
Parekh says that pre-9/11, one of the central tenets of America’s approach to refugee resettlement had been the “Pottery Barn rule,” referencing a well-known incident in which Colin Powell warned President George W. Bush of the “Pottery Barn rule” before the invasion of Iraq.
“You break it, you bought it,” Parekh explains. “If you’re invading a region and you do something militarily that has a negative consequence — no matter how good your intentions are — you have to fix it. You are responsible for remedying the harm if there were predictable, foreseeable consequences to your actions.”
But Parekh says that 9/11 was such a "collective trauma" that the Pottery Barn rule was disregarded in the effort to fight terrorism and do "whatever it took to prevent [9/11] from happening again."
The 2003 U.S. invasion of Iraq displaced approximately 1 in 25 Iraqis from their homes, according to a study by the Brown University Watson Institute for International and Public Affairs titled "Costs of War."
The U.N. Refugee Agency reported in 2015 that over 4.4 million Iraqis were internally displaced, and an additional 264,100 were refugees abroad. Between 2007 and 2013, just 84,902 Iraqis were admitted to the U.S. as refugees, according to U.S. Citizenship and Immigration Services.
She says the lack of consideration for the Pottery Barn rule could be clearly seen in the United States' treatment of refugees during the Iraq War, particularly those who had helped the United States military as translators.
In 2008, Congress created the Special Immigration Visa program to bring Afghan and Iraqi translators to the United States. But it was widely reported that bureaucratic delays kept some translators trapped in dangerous circumstances for years while waiting for their visa to be processed.
In 2015, nine Iraqi interperters who had been promised U.S. visas sued the American government to get their visa status resolved.
Parekh said that the invasion of Iraq as a response to the 9/11 attacks was “seen as such a good, that the unintended, but foreseeable consequences of the war — refugees — seemed like a small price to pay,” says Parekh. Caring for the refugees who were created as a result of the invasion took a back seat, she said.
A moral obligation?
In Syria, America’s moral obligation is less clear cut than other historical examples, such as the U.S. invasion of Vietnam or Iraq, Parekh says, because “it’s not as clear that our policy or action — or lack of action — directly caused the refugee crisis.”
But Darrow argues that “we have a moral obligation that extends far beyond just where we have intervened militarily,” to all refugees worldwide seeking a safe and permanent home.
“Yes, we have a moral obligation when we have been part of the destabilization, that people have fled because of us, directly or indirectly. But we have a larger moral obligation to all of the world’s refugees that we are not meeting,” says Darrow.
Darrow says the decision-making of the United States should be guided by an instistence on human rights and a commitment to stopping the human rights violations that are occurring on a massive scale in places like Syria. She says that it is "not sufficient" for America to limit refugee resettlement efforts to those impacted by U.S. military intervention.
"We have a moral duty that extends to the worldwide flow of forced migration," she says. "Regardless of whether we're waging war on a country, we still have an obligation to be involved in refugee resettlement."
Though the Supreme Court's decision is not expected until later this summer, early analysis of Wednesday's hearing suggests that the court's five-member conservative majority seemed prepared to sustain President Trump's authority to impose the travel ban.
The decision is likely to have a profound impact on the nearly 13 million Syrians that are now on the run — including 5.3 million who have been forced to seek refuge in neighboring countries, and 6.1 million displaced inside Syria, according to the Pew Research Center.
Crocker says that in recent years, the United States has “sadly disengaged” from a leadership role in refugee resettlement.
“In 2017, we had 3,100 migrants drown in the Mediterranean [Sea],” he says. “How many times can you recall a U.S. Navy vessel sailing to the rescue of a floundering refugee boat? It’s a nice round number. Zero.”
Crocker says he was one of 50 senior former national security officials to file an amicus brief in support of the state of Hawaii and the Iraqi Refugee Assistance Project’s lawsuit against the Trump administration in the travel ban case.
“I firmly believe that we are a nation of immigrants, that’s who we are, and it’s an obligation for those of us who feel that way to push back against those who try to change who we are as a nation,” says Crocker. “No matter how much lipstick you put on it, it is still a highly discriminatory measure based on national origin and religion. And that’s why it’s in front of the Supreme Court.”