To adapt the lyrics of a Billy Holiday song, a new Biden administration policy on the immigration consequences of providing support for terrorists appears to be: “If a terrorist group ain’t got no money and you say, ‘Take all of mine, honey’, ain’t nobody’s business if you do. If you give them your last nickel and it leaves you in a pickle, ain’t nobody’s business if you do.”
In 1996, Congress declared that “foreign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct” and the House Judiciary Committee stated that:
[We] recognize the fungibility of financial resources and other types of material support. Allowing an individual to supply funds, goods, or services ... helps defray the cost to the terrorist organization of running the ostensibly legitimate activities. This in turn frees an equal sum that can then be spent on terrorist activities.
In 2007, Sen. Jon Kyl similarly stated that:
[A]ll provision of material support to terrorist organizations is bad. There is no such thing as “good” aid to a terrorist organization, because all aid is fungible and can be converted to evil purposes, and because even humanitarian aid can be used by a terrorist organization to help it to recruit new members.
In the aftermath of 9/11, Congress worked diligently to strengthen the terrorism grounds of inadmissibility and deportability and, recognizing that there is no such thing as “good” aid to a terrorist organization, to strengthen the grounds based on the provision of material support. Through his dogged and canny leadership, House Judiciary Committee Chairman F. James Sensenbrenner, Jr., was able to secure the enactment of the USA-PATRIOT Act of 2001 and the REAL ID Act of 2005 with provisions dramatically strengthening these grounds. I and my colleague Andrew Arthur had the honor of assisting Chairman Sensenbrenner in his efforts.
Federal law enforcement has recognized the importance of these changes. In 2004, Barry Sabin, then chief of the Counterterrorism Section of DOJ’s Criminal Division, told the Senate Judiciary Committee that “a critical element in our battle against terrorism is to prevent the flow of money and other material resources to terrorists and terrorist organizations.” And in 2007, Paul Rosenzweig, then deputy assistant secretary for policy at DHS, testified before the committee that:
Let me ... reiterate[e] precisely why ... material support provisions are so vital to our national security. ... [T]his law ... has allowed [us] to remove a Saudi national who had paid for and helped run the website for an al Qaeda front group. ... And it allowed us to deport a supporter and fundraiser for the Benevolence International Foundation, whose associates in the United States conspired to support the Taliban.
However, as we shall see, the Biden administration has decided to roll back much of these gains, seemingly under the maxim of “What’s good for JEM (Jaish-e-Mohammed) is good for America.”
Prior to the PATRIOT Act, the Immigration and Nationality Act provided that:
[An alien is inadmissible or deportable for] afford[ing] material support to any individual, organization, or government in conducting a terrorist activity at any time, including ... [t]he providing of any type of material support, including a safe house, transportation, communications, funds, false documentation or identification, weapons, explosives, or training, to any individual the actor knows or has reason to believe has committed or plans to commit a terrorist activity. [Emphasis added.]
Thus, the material support had to be tied to “conducting a terrorist activity” or given to someone who “has committed or plans to commit a terrorist activity”.
This pre-9/11 frame of mind failed to recognize that, as the 9th Circuit Court of Appeals concluded:
Material support given to a terrorist organization can be used to promote the organization's unlawful activities, regardless of donor intent. Once the support is given, the donor has no control over how it is used. ... [A]ll material support given to such organizations aids their unlawful goals. [T]errorist organizations do not maintain open books. Therefore, when someone makes a donation to them, there is no way to tell how the donation is used. ... More fundamentally, money is fungible; giving support intended to aid an organization's peaceful activities frees up resources that can be used for terrorist acts.
And, as Chris Wray, then assistant attorney general for the Criminal Division, told the Senate Judiciary Committee in 2004:
[M]aterial support of any kind is fungible and frees up resources that may then be used to promote violence [and] the provision of any material support facilitates and furthers the organization’s unlawful and violent activities regardless of the benign intent of the donor. ... Matthew Levitt ... describes how Hamas charity committees, mosque classes, student unions, and sport clubs serve as places where Hamas activists recruit Palestinian youth for terrorist training courses ... or for suicidal terrorist attacks. ... Hamas-run schools and summer camps begin indoctrinating children as early as kindergarten for later use as suicide bombers. ... [E]ven if individuals ... are somehow able to ensure that ... money is spent ... only for humanitarian activities ... [it] enables these groups to gain more general support, loyalty, and popularity among the local people and to earn a measure of legitimacy.
Following enactment of the PATRIOT Act, the statute provided that:
[An alien is inadmissible or deportable for] afford[ing] material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training ... for the commission of a terrorist activity; ... to any individual who the actor knows, or reasonably should know, has committed or plans to commit a terrorist activity; ... to a [group designated as a] terrorist organization [by the Secretary of State] or to any member of such an organization; or ... to a terrorist organization [not so designated] unless the actor can demonstrate that he did not know, and should not reasonably have known, that the act would further the organization’s terrorist activity. [Emphasis added.]
The PATRIOT Act changes represented substantial progress. At least in the context of foreign terrorist organizations designated as such by the secretary of State, proscribed material support did not have to be tied to a specific terrorist act. However, as to all other foreign terrorist organizations, if an alien didn’t know that the support “would further the organization’s terrorist activity”, they were literally home free (with the U.S. being their home).
Finally, following the enactment of the REAL ID Act, the statute now provides that:
[An alien is inadmissible or deportable for] afford[ing] material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training ... for the commission of a terrorist activity; . . to any individual who the actor knows, or reasonably should know, has committed or plans to commit a terrorist activity; ... to a [group designated as a] terrorist organization [by the Secretary of State] or to any member of such an organization; or ... to a terrorist organization [not so designated], or to any member of such an organization, unless the actor can demonstrate by clear and convincing evidence that the actor did not know, and should not reasonably have known, that the organization was a terrorist organization. [Emphasis added.]
Thus, ever since the implementation of the REAL ID Act, the key question as to whether the provision of material support to a non-designated terrorist organization is a ground of inadmissibility or deportability is whether the alien “did not know, and should not reasonably have known, that the organization was a terrorist organization” — not whether their support went to a specific terrorist act.
In June, the Departments of State and Homeland Security published a notice in the Federal Register providing that:
[A]s a matter of discretion in accordance with the authority granted by [the Immigration and Nationality Act] ... the grounds of admissibility and deportability regarding the provision of material support to an organization designated by the Secretary of State as a foreign terrorist organization] shall not apply with respect to an individual who provided ... insignificant material support (i.e., support that was minimal in amount and inconsequential in effect); or ... limited material support under circumstances involving certain routine commercial transactions, certain routine social transactions (i.e., in the satisfaction of certain well-established or verifiable family, social, or cultural obligations), certain humanitarian assistance, or substantial pressure that does not rise to the level of duress, to a designated terrorist organization ... or to any member of such organization. [Emphasis added.]
Where to begin? First off, when the Obama administration established similar exemptions, it did so only regarding terrorist organizations that had not been designated as foreign terrorist organizations. The Biden administration decided to be even more reckless, providing exemptions for the provision of support to designated terrorist organizations! As former Sen. Jon Kyl has stated, “[t][he State Department’s FTO list includes some of the most bloodthirsty terrorist organizations on the planet.” In fact:
[T]he Secretary can only designate foreign terrorist organizations] if the Secretary finds that— (A) the organization is a foreign organization; (B) the organization engages in terrorist activity ... or retains the capability and intent to engage in terrorist activity or terrorism ... and (C) the terrorist activity or terrorism of the organization threatens the security of United States nationals or the national security of the United States. [Emphasis added.]
- What are “routine commercial transactions” supposed to mean? When the Obama administration established similar exemptions, it explained that:
[A] commercial transaction is routine if the transaction occurred on substantially the same terms as other transactions of the same type, regardless of the parties to the transaction, and the transaction was consistent with established practice.
Great, it’s fine to do business with terrorist organizations and their members as long as they don’t receive the employee discount. How could this possibly benefit the organizations?
- What are “family, social or cultural obligations”? The Obama administration explained that:
[A social transaction is one that] satisfies and is motivated by specific, compelling, and well established or verifiable family, social, or cultural obligation(s) or expectation(s) ... no different than support that the applicant, or a similarly situated member of the applicant’s family or community, would provide or did provide under similar circumstances to others who were not members of a ... terrorist organization.
Great, it is fine to satisfy family, social, or cultural obligations to terrorist organizations and their members. What if the family, social, or cultural obligation involve assisting those “defending the faith”? How could this possibly benefit the organizations?
- What is humanitarian assistance to a terrorist organization? The Obama administration explained that:
[Humanitarian assistance] means aid provided with the purpose of saving lives and alleviating suffering [such as s]eek[ing] to address basic and urgent needs such as food, water, temporary shelter, and hygiene ... is often short-term and generally triggered by an emergency situation, but also may be provided in protracted situations of conflict or displacement over an extended period of time ... [and] is provided on the basis of need, according to principles of universality, impartiality, and human dignity.
Great, it is fine to provide humanitarian assistance to terrorist organizations and their members in protracted situations of conflict over an extended period of time. How could this possibly benefit the organizations? We wouldn’t want them to have to go without shelter, sheets, and showers.
- What is “pressure” that doesn’t even rise to the level of duress? The Obama administration explained that:
[Pressure is a] reasonably perceived threat of physical or economic harm, restraint, or serious harassment, leaving little or no reasonable alternative to complying with a demand ... if providing the support is the only reasonable means by which the applicant may carry out important activities of his or her daily life [and] the applicant must have actually felt sufficient pressure that left him or her no reasonable alternative.
Great, it is fine to provide material support to terrorist organizations and their members if not doing so would mean losing out on a bonus or promotion at work. How could this possibly benefit the organizations? I predict that pretty much every alien subject to the material support grounds of inadmissibility or deportability will claim they were “under pressure”.
The Biden administration’s notice goes on to say that to receive an exemption:
- ”An alien must “not [have] voluntarily and knowingly engage[d] in terrorist activity on behalf of a designated terrorist organization”. Besides the point.
- An alien must not have “provided the material support with any intent or desire to assist any terrorist organization or terrorist activity”. Material support inevitably assists a terrorist organization.
- An alien must not have “provided material support that the individual knew or reasonably should have known could directly be used to engage in terrorist or violent activity”. Money is fungible!
- An alien must not have “provided material support to terrorist activities that they knew or reasonably should have known targeted noncombatant persons, U.S. citizens, or U.S. interests”. Money is fungible!
- An alien must not have “provided material support that the individual knew or reasonably should have known involved providing weapons, ammunition, explosives, or components thereof, or the transportation or concealment of such items”. Money is fungible!
- An alien must “pose no danger to the safety and security of the United States”. I’ll trust the Biden administration to ferret this out, as it has done so well regarding Afghans it airlifted out after its calamitous retreat from Afghanistan. And, at least as to tier I terrorist organizations, the secretary of State must already have found that they threaten the security of U.S. nationals or our national security!
- An alien must “warrant an exemption ... in the totality of the circumstances.” I’ll trust the Biden administration on this one!
A few days ago, a group of senators led by Bill Hagerty sent a letter to Secretary of Homeland Security Alejandro Mayorkas and Secretary of State Antony Blinken regarding the administration’s decision:
[T]he American people deserve an explanation regarding the broad, open-ended nature of this authority for exempting individuals who would otherwise be barred from immigration to the United States for supporting a terrorist organization. ... [The exemption] is not limited to ... persons connected with the war in Afghanistan. Indeed, it is not limited to certain conflicts, terrorist organizations, geographic regions, or time periods at all. ... [It] makes individuals who provided material support to terrorist organizations eligible to enter the United States and receive “immigration benefits or other status[es]” at the expense of American taxpayers.
Finally, the letter says that “[t]his sort of substantial, inadequately explained change to U.S. immigration policy implicating obvious U.S. national security interests merits further explanation and congressional scrutiny.” Well, that is an understatement! To my mind, it merits immediate rebuke and immediate reversal.
Why has the Biden administration taken this reckless step? At least part of the reason is likely that aliens who are inadmissible or deportable on material support of terrorism grounds are ineligible for asylum and withholding of removal. Given the Biden administration’s goal of granting asylum to as many illegal aliens as possible, this removes a large impediment. As CIS Executive Director Mark Krikorian has pointed out, “the White House plan for dealing with the surge of new illegal immigration — which will come on top of the existing historic surge of illegal immigration — is not to halt the surge but to launder it by granting asylum immediately to virtually all those who jump the border.”