Preventing Terror Through Deportation, Revisited

By Dan Cadman on December 3, 2015

An item recently posted on made me aware of an article by Edward Luttwak, a senior associate at the Center for Strategic and International Studies, "Doing Counterterrorism Right", which is well worth the read.

It's a timely article, given recent events in France and Belgium. In it, Luttwak makes the surprising, but persuasive, case that Italy is virtually alone among Western European states in currently having an effective counterterrorism program. Here is the gist of his premise:

Italy is fortunate in its natural and man-made beauties, but its success in counterterrorism so far — fingers crossed — owes nothing whatever to good luck.

It is all a question of method, itself derived from one fundamental insight: Terrorist actions cannot be anticipated and prevented — all such efforts are simply futile because there are just too many possible targets and an infinity of possible dates. Nor can one hope to detect even imminent attacks because terrorists need not reveal themselves until it is too late. ...

[T]he Italians differ drastically from the French or Belgians or British, who keep monitoring suspects, filling ample files with lots of reports, photographs, videos, and intercept print-outs, as if they were biographers of the most encyclopedic kind.

The Italians by contrast take action the moment the very first indication comes in. This is sometimes a phone or e-mail intercept, and sometimes a tip-off from an agent (Italy invests modestly but steadily in the foreigners it recruits). But more often it is a friend who reports someone for speaking of jihad, for swearing that he will kill for Hamas, join the Islamic State or do something else. ...

What follows is an expert interrogation. Many are soon sent home, classified as mere boasters if they turn meek. Those who are proud to be militant are held, and their records are minutely examined to find any criminal infraction for which they can be arrested, tried and imprisoned (unlike the French who treat militant petty thieves as petty thieves, not as militants). If any faults are found in the immigration paperwork, they are deported —even if they have become Italian citizens — a measure applied to several vehement imams (181 more imams are currently in prison). (Emphasis added.)

I think that Luttwak has this just exactly right. It's what I have on prior occasions referred to as the "Al Capone" theory of enforcement: If you can't nail the miscreants for murder or racketeering, then you do it for tax evasion or fraud or whatever other offense to which they have left themselves vulnerable.

This is, or at least should be, as true of terrorism and national security offenses as with any other criminal enterprise. If you believe that an individual is an active supporter of Islamic State or al Qaeda or whatever the terrorist group du jour happens to be, then it makes sense to look among other things at the potential for bringing criminal immigration offenses, such as for visa fraud, or false statements and misrepresentations on paperwork — and it also extends, or at least should extend, into the arena of civil enforcement — meaning deportation. When all else fails, then removal is a viable option. I speak from experience when I say that it is surprising how often immigration removal charges can be brought against individuals when their files are closely examined. This is a position I have advanced a number of times before (see, for instance, here and here), arguing that it makes no sense to leave the human equivalent of a ticking time bomb on the streets of America given the stakes involved. I have also advocated denaturalization of those enemies who burrow in among us (see here and here).

Unfortunately, it is unlikely to happen under the Obama administration for a couple of reasons: Although the Department of Homeland Security claims that national security is the highest priority for immigration enforcement purposes, arrests of terrorists can very often be most effective by not alerting them to the fact that they have been unmasked, which implies charging them with run-of-the-mill immigration charges, but following through with the full force of the law to ensure detention and prompt removal. The administration's track record in that regard is abysmal.

The other option is for immigration agents to work with the FBI and other intelligence organizations to arrest the aliens and selectively use classified evidence against them, presented in camera to the immigration judge to ensure that it is not compromised. Sadly, that too is unlikely under this administration, which, although it does not hesitate to kill dual-national Americans with drone strikes, evinces feelings much too delicate to undertake administrative deportation proceedings under such "Kafkaesque" conditions.

Where does that leave us? Failing the will to make full use of the options available to us, as so sagely laid out by Luttwak — including strategic use of the immigration laws to safeguard the homeland — the United States is in just about the same position as most of our Western European counterparts, consigned to playing a game of chicken with the American populace as bait.