On May 28, NBC News reported that the Biden administration will be scrapping a 2004 directive that inhibits the ability of DHS officers to take enforcement action against known or suspected aliens based on secure and classified information. The national security dangers posed by that decree — issued in a memo by then-DHS Secretary Tom Ridge under the George W. Bush administration — should be familiar to visitors to this site, because I warned it was a threat back in December. The problem is that it may be too late.
“Secret Evidence”. Prior to the September 11th attacks, there was a bipartisan uproar over the use of so-called “secret evidence” — information classified at the “secret” level and above — presented ex parte against alien respondents in immigration proceedings and considered by immigration judges but not shared with such aliens or their counsel.
Consider the following, from the U.S. Commission on Civil Rights in 2000:
The lack of a defendant's access to the secret evidence makes it nearly impossible for him or her to make a defense against serious deportation charges and makes it possible for an individual with extensive family and community ties in the United States to be deported on the testimony of unnamed informants whose charges are taken as fact and cannot be challenged.
Similarly, and despite statutory and regulatory provisions permitting immigration prosecutors to offer and rely on classified evidence not shared with alien respondents, the National Commission on Terrorism (the “Bremer Commission”, not to be confused with the later “9/11 Commission”, which I will discuss below) concluded in its June 2000 final report that “resort to use of secret evidence without disclosure even to cleared counsel should be discontinued”.
Keep in mind — that was a commission created to respond to and stem the terrorist threat.
Then-candidate George W. Bush vowed on the 2000 presidential campaign trail that he would end the practice of using classified evidence ex parte in immigration proceedings, but as the Tampa Bay Times reported just over a week before September 11th:
Nearly a year after Muslim- and Arab-Americans endorsed George W. Bush for president, they say they have tired of waiting for him to keep what they thought was a promise to end the government's use of secret evidence to jail members of their community.
Secretary Ridge’s “Guidelines for the Use of Classified Information in Immigration Proceedings”. The terrorist attacks did not dissuade President Bush from honoring his vow, however, which brings me to an October 4, 2004, memo from then-DHS Secretary Tom Ridge to, among others, the heads of CBP, USCIS, and ICE, captioned “Department of Homeland Security Guidelines for the Use of Classified Information in Immigration Proceedings”.
The memo explained that: “While the [Immigration and Nationality Act (INA)] and regulations allow for the use of classified information, the Secretary of the Department has determined, in his discretion, that the Department will use classified information only as a last resort.”
It continued:
“Last resort” means that classified information will be introduced in an immigration proceeding only where other options have been examined and weighed, no alternative option exists that will ensure success on the merits, and the case presents a compelling need for use of such information.
Those guidelines mandate a complex review process before classified evidence can be used against a removable alien, including sign-off by the secretary himself (and by the attorney general where the evidence was obtained through FISA), though it does include a narrow exception allowing for the use of an “abbreviated procedure” in “exigent circumstances”.
To say that this memo had a “chilling effect” on the use of ex parte classified evidence in immigration enforcement efforts would be an understatement; in the nearly 20 years since it was issued, I am unaware of any such usage.
As I noted back in December:
The Ridge memo appears to still be in effect. Given the surge in migrants entering the United States illegally on the terrorist watchlist, and warnings by the FBI director that recent Hamas attacks in Israel could inspire terrorist actors in the United States, it’s incumbent on Congress to get to the bottom of what’s happening — and to assess whether those guidelines are impeding national security.
Mohammad Kharwin. Five months later, in April, NBC News revealed that Border Patrol had released Mohammad Kharwin, a 48-year-old Afghan national apprehended on March 10, 2023, after he allegedly entered the United States illegally near San Ysidro, Calif. Though agents had suspicions that Kharwin was on the terror watchlist, they “lacked corroborating information” to confirm that he was the person on the list.
So, under administration policy, he was released — notwithstanding congressional mandates requiring DHS to detain him and despite the fact that agents had national-security concerns about him.
The reason why he was released remains a mystery. In FY 2023, ICE (which performs immigration detentions) had 34,000 congressionally authorized detention beds, but that March — according to ICE’s own statistics — just 27,693 of those beds were filled, on average. That left nearly a fifth of the beds empty, and I’m sure ICE could have accommodated Kharwin.
In any event, after he was released, Kharwin:
lived in the U.S. for more than a year before he was arrested by ICE in early 2024. When evidence of his potential ties to terror was not presented to the judge, he was freed again as he awaited an asylum hearing scheduled for 2025, U.S. officials said.
Why wasn’t that “evidence of [Kharwin’s] potential ties to terror ... presented to the judge”? According to NBC News, ICE attorneys withheld the evidence because it “was classified”.
May 9 Mayorkas Memo. If that sounds a lot like what I warned about in December, that’s because it is. The good news is that the outlet reports that DHS Secretary Alejandro Mayorkas issued a new memo, which hasn’t been publicly released, on May 9 that overrides the 2004 Ridge memo.
The bad news is that we have no idea how many of the 347 other terror watchlist aliens apprehended at the Southwest border since FY 2022 were released under the 2004 directive before the administration realized that it had a major national-security risk on its hands.
Note that more recently, I have suggested that campaign concerns about terrorist attacks during a pivotal election year may also be driving a separate Biden reversal of prior administration policies to now allow USCIS officers to consider terrorist and criminal bars to asylum when performing initial interviews of illegal migrants.
What Isn’t the Administration Telling Us? I was right about the Ridge memo, and I’m probably right about the asylum-bar switch as well. That raises an ominous question: What does the administration know about the alien terror threats facing the United States that it is not sharing with the American people?
That’s a deathly serious question given the fact that the White House and DHS have been blithely oblivious to the national-security risks posed by the chaos they have created at the Southwest border for the past 39 months. What’s changed now?
NBC News implicitly credits its earlier reporting on the Kharwin case for the policy switch on the Ridge memo, explaining that two unnamed DHS officials “did not comment on whether the NBC News report had a role in prompting the change in classified information policy” (wink-wink). Respectfully, however, it likely had no more impact on the change than my December analysis did.
FBI Director Chris Wray and DHS’s own 2024 Homeland Security Threat Assessment have been warning for months that the border disaster posed a national-security risk, with the latter going so far as to conclude:
Record numbers of migrants traveling from a growing number of countries have been encountered at our borders this fiscal year ... . Terrorists and criminal actors may exploit the elevated flow and increasingly complex security environment to enter the United States.
My colleagues Todd Bensman and Jon Feere have both written about a strange incident that occurred in the wee hours of May 3, when two Jordanian nationals — one a recent illegal border-crosser and the other a student-visa overstay — attempted to enter Marine Corps Base Quantico (which also houses the FBI training center) claiming to be Amazon deliverymen.
That’s just the latest attempted incursion by foreign nationals at U.S. military installations, and at some point, potential terror-related anecdotes become data that policymakers should not ignore.
“The System Was Blinking Red”. That was one conclusion of the 9/11 Commission in Chapter 8 of its final report, captioned “The System Was Blinking Red”. It starts: “As 2001 began, counterterrorism officials were receiving frequent but fragmentary reports about threats. Indeed, there appeared to be possible threats almost everywhere the United States had interests — including at home.”
Note that Wray alluded to that very same phrase, “blinking red”, in describing the current terrorist threats facing the United States during questioning by Sen. Lindsey Graham (R-S.C.) before the Senate Judiciary Committee in December. “I see blinking lights everywhere I turn.” As Wray explained:
I am concerned that we are in ... a heightened threat environment from foreign terrorist organizations for a whole host of reasons and obviously their ability to exploit any port of entry, including our southwest border ... . We have seen an increase in so-called KSTs, “known or suspected terrorists”, attempting to cross over the last five years.
Kudos to the Biden administration for finally waking from its self-imposed slumber to address the border terror threat both FBI Director Wray and I warned about in December. The problem is that recent incidents suggest it may already be too late to answer all the blinking red lights.