No, Fenster is not doing a primer on refugee law. He can only comment as a rank amateur on what looks like a good primer (thanks to the highly credible Volokh Conspiracy for the link).
The primer, written by Paul Rosenzweig, is here. Read the whole thing, as the saying goes. It is a lot more learned than the commentary. I won’t summarize but I will comment.
1. 50,000-75,000 refugees (the rough range of our limits) are a drop in the bucket compared with the actual problem. But it does comprise half of the number processed by UNHCR. Conclusion: we do our fair share of UNHCR work but what UNHCR processes is a drop in the bucket in itself. Most refugees operate outside its scope, with most “resettled through informal mechanisms, or not resettled at all.”
2. Our geographic distance from war zones insulates us from the “informal” problems occasioned by exodus, so most of our discussion on this relates to the finer points of formal UNHCR negotiations of processing our relatively small quota. We are debating a significant issue, but it is a small one in the scheme of things as regards the totality of the refugee issue, which is being played out on the ground in Europe and elsewhere in other ways.
3. Our law is based on the language of the 1951 UN Convention. In both cases the definition of refugee turns mainly on fear of persecution rather than simple displacement from conflict or desire for a better life given tough conditions in the home country. So at least from the POV of the definition of the term, many people escaping war zones would not meet the definition of refugee, nor would many escaping a hard life in Mexico or even drug violence in Honduras. That does not mean we should not be compassionate–only that as far as I see there are limits to our obligations under the Convention and American law.
4. My guess from this is one can distinguish between the Convention and the US law–which we are bound to follow–and the practices of the UNHCR. The UNHCR bases its work on the Convention and needs to be mindful of US law. But I doubt the US is compelled to do what the UNHCR says in the same way it is supposed to follow the Convention and laws.
5. Vetting is very hard to do well under the circumstances. And the author makes a credible case that we may be doing it as well as it can be done. And that if one wanted to sneak in to do bad things there are easier ways to do it than by running the gauntlet via UNHCR and US vetting.
Tie this to the fact that there have been zero deaths in the US from admitted refugees. And that we have a larger problem with domestic Muslims radicalized here than we do with refugees. That all makes a reasonable case that the problem may have been overblown.
And now, in lawyerly fashion, for the ‘on the other hand’.
While there have been no instances of refugees undertaking fatal attacks there are a good number of instances of refugees “convicted for, or implicated in, terrorism or terrorism-related offenses“–and that’s just convicted. 40, according to Jeff Sessions. And that is against a relatively small sample, per the above.
Also many radicalized in the US are second generation immigrants, like the San Bernadino and Orlando shooters. That’s not a strong argument to let the first generation in.
Significant percentages of actual refugees from the Middle East hold sympathetic views of Hamas or Hezbollah or ISIS or al-Qaeda. That’s quite different from other instances of granting refugee status on the basis of fear or persecution, like the Vietnamese boat people or Iranians running from Khomeini or Russian Jewry. The enemy of my enemy is not always my friend.
Consider also that while Rosenzweig concludes that the vetting in the rough environment of camps may be as good as it gets he hardly argues that it is foolproof or even close. Witness the 40 convictions.
So now comes a new Administration. They are not expert in all the subtleties since they have not been in the driver’s seat. Like all new administrations they want to take their own measure of things. Like most new administrations they necessarily trip and fall as they try to figure out how to do it. Add to that this particular Administration’s peculiar and seemingly ham-handed style–ready, fire, aim.
So they impose a 3 month stay while they take stock. I don’t find that an unreasonable approach. And if you step back and look at what has been written about the Executive Order from all corners of the internet it does come across as a significant but not earth-shaking thing. It is the kind of thing around which reasonable people will disagree as to both substance and legality. But when I turn on the nightly news why is it all about violins and sweet children with big eyes?
ADDENDUM: Emerson said it is a luxury to be understood and something of the reverse is true too. Given that language is a device for ambiguity as well as clarity misunderstanding comes easy. So at the risk of compounding things let me say that that last sentence above is not meant to minimize the real and serious problems of refugees. Any snarky note was aimed mainly at the mainstream media. On this issue (and on many issues where the issue of Trump is central) the press presents one side when the issue is more complicated and worthy of discussion and debate.