We Need Better Vetting, Better Screening, and Better Laws

By Andrew R. Arthur on January 16, 2018

In a report issued earlier today, the Departments of Homeland Security (DHS) and Justice (DOJ) revealed that 73 percent of those who were convicted in federal courts of international terrorism-related charges between September 11, 2001, and December 31, 2016, some 402 individuals, were foreign-born. Of that number, 254 were aliens and 148 had naturalized.

It also states that approximately 1,716 aliens "with national security concerns" have been removed from the United States since September 11, 2001. In addition, the report revealed that DHS in FY 2017 alone had "encounters" with thousands of individuals attempting to enter the United States who were in the FBI's Terrorist Screening Database.

Of course, these figures only represent foreign-born individuals who have been identified as terrorist risks, and does not include those alien terrorists who have not been identified.

In an interview with CBS, Homeland Security Secretary Kirstjen Nielsen identified this as a "clear and present danger", adding:

I think this underscores the need to not only implement the executive orders that [the president has] issued over the past year, but I feel very strongly about going to Congress today during a hearing and working with them to close the loopholes that prevent us from removing known, suspected terrorists and other criminals in the United States.

There's a lot a good, but also a lot of bad, in these numbers.

First to the good. Having worked for the former Immigration and Naturalization Service (INS) as an attorney handling national security cases before September 11, 2001, I can attest to the fact that the United States is in a much better position to identify individuals who pose a terrorism risk to the United States than it was 16 years ago. Notwithstanding the first World Trade Center attack, there was a certain reluctance on the part of both leadership within the executive branch and judges to accept the arguments of line employees that specific aliens had been identified as potential terrorists, or posed a terrorist risk. September 11 changed all that.

More importantly, however, there were significant vulnerabilities within the law generally, and within the Immigration and Nationality Act (INA) in particular, that made it difficult to exclude and deport aliens posing a national security risk. In the interest of full disclosure (and with some pride), I worked alongside staffers of both parties on Capitol Hill to identify and address those vulnerabilities, and to ensure that our law enforcement officials had the resources and the tools they needed to protect the American people. Members of Congress were, by and large, united in their determination to balance security with the civil liberties interests that make the United States a country worth defending, resulting in the passage of much-needed legislation.

Now the bad. Shortly after his inauguration, the president identified the need for better vetting and screening of foreign nationals coming to the United States, and put forth proposals to address that need, but many of those efforts have been blocked by federal courts. Lawyers and judges pointed to statements made by then-candidate Donald Trump to argue that the president's proposals were motivated by improper animus. The facts disclosed by DHS make clear, however, that the president's concerns are real.

As Secretary Nielsen stated:

I think what we take directly away from the report is we need to continue to enhance our screening and vetting. But it also tells us we need to continually vet those who are here. We have examples unfortunately over the last decades of terrorist attacks from legal permanent residents and others who were naturalized. So we need to be able to continue up until the point they become a U.S. citizen, to continue to vet them to ensure they haven't become radicalized.

This last point bears emphasis. The process by which individuals become radicalized in the United States has been subject to much study and debate, but is still poorly understood. Until that process is more precisely identified, DHS must continue to be vigilant in its screening of aliens seeking benefits (including citizenship) in the United States.

As the 9/11 Commission found In its final report:

When people travel internationally, they usually move through defined channels, or portals. They may seek to acquire a passport. They may apply for a visa. They stop at ticket counters, gates, and exit controls at airports and seaports. Upon arrival, they pass through inspection points. They may transit to another gate to get on an airplane. Once inside the country, they may seek another form of identification and try to enter a government or private facility. They may seek to change immigration status in order to remain.

Each of these checkpoints or portals is a screening – a chance to establish that people are who they say they are and are seeking access for their stated purpose, to intercept identifiable suspects, and to take effective action.

The job of protection is shared among these many defined checkpoints. By taking advantage of them all, we need not depend on any one point in the system to do the whole job. The challenge is to see the common problem across agencies and functions and develop a conceptual framework – an architecture – for an effective screening system.

With the information that DHS and DOJ have compiled in their report, those government employees who play a role in protecting our security – from consular officers abroad, to inspectors at the ports of entry, to adjudicators at U.S. Citizenship and Immigration Services (USCIS) and immigration judges in the Executive Office for Immigration Review (EOIR) (and the government attorneys who appear before them)  will be in a better position to protect the American people by leveraging their roles in that screening process.

That said, however, Congress must give those employees additional tools for this vital work, and there are strong legislative proposals that would do just that. For example, if passed, the Securing America's Future Act (SAFA, HR 4670), will beef up visa security abroad, remove the barriers between federal immigration agents and local law enforcement, and combat asylum fraud.

Specifically, that bill would send additional U.S. Immigration and Customs Enforcement (ICE) agents to more high-risk embassies abroad to assist in vetting applicants for both immigrant and nonimmigrant visas. It also would tighten the "credible-fear" process, which, as I have explained earlier, has been exploited by aliens posing a terrorist risk. Finally, by cracking down on sanctuary cities and facilitating cooperation between ICE and local law enforcement, it would free up ICE resources to focus on criminal and terrorist aliens.

In addition, SAFA would end the visa lottery program, under which known and identified terrorists have entered the United States.

In a famous 1984 advertisement for President Reagan's reelection campaign, a "bear in the woods" was used as a metaphor for the threats that the Soviet Union posed to the United States. It stated that some people didn't see the bear, and that others thought the bear was tame. Similar arguments have been made by those who contend that the risk posed by alien terrorists has been overstated. Today's report from DHS and DOJ reveals that there is, in fact, a new "bear in the woods" that poses a risk to the American people. While considering legislation that would provide permanent status to beneficiaries of Deferred Action for Childhood Arrivals (DACA), Congress has the opportunity to take steps to address that risk.