History, Hysteria, and Syrian Refugees

A week after the ISIS terrorist attacks in Paris, American political hysteria is on full display. On Thursday, the House voted to tighten screening procedures on Syrian refugees; never mind that the extraordinarily rigorous background checks already in place make it more difficult to come to the United States as a refugee than through any other immigration status. This is legislation unmoored not only from facts but also from the lessons of history.

The Facts

The “American Security Against Foreign Enemies Act of 2015” adds layers of unnecessary bureaucracy onto the existing security checks applied to all refugees entering the United States. Applicable only to Iraqi and Syrian nationals or residents who left after March 1, 2011, the bill requires that the FBI Director certify to the Secretary of Homeland Security and the Director of National Intelligence that such refugees have undergone sufficient background investigation to determine that they are not a security threat to the US. If both Directors are in agreement, the DHS Secretary must certify this finding to 12 congressional committees before any covered refugee can enter the country. Additionally, the Inspector General of DHS must conduct a risk-based review of all certifications and provide an annual report to the same committees, and the DHS Secretary must report monthly on the number of certifications and non-certifications.

Mind-numbing? This isn’t nearly as complex as the security checks currently in place for refugees arriving in the United States. The process begins for these refugees with the United Nations High Commissioner for Refugees’ registration and interview process, which includes biometric data and biographic information. Those who are recommended for resettlement to the United States are interviewed by a highly trained Refugee Officer from US Citizenship and Immigration Services, a sub-agency of the Department of Homeland Security.

DHS performs biometric checks against three databases:

  • The FBI’s Next Generation Identification system, which encompasses both identification and criminal investigative databases;
  • DHS’s Automated Biometric Identification System, which runs that data against watch lists and previous attempts to enter the United States; and
  • The Defense Department’s Automated Biometric Information System, which includes records as broad as fingerprints captured in theatre in Iraq

In addition, DHS runs biographic checks against two or three more databases:

  • The State Department’s Consular Lookout and Support System, which includes watch-list information;
  • Interagency checks with the National Counterterrorism Center; and
  • For cases meeting certain criteria, DHS obtains Security Advisory Opinions from law enforcement and intelligence agencies

On top of all of these checks, all Syrian cases are reviewed at the United States Citizenship and Immigration Services’ headquarters by a Refugee Affairs Division officer, who sends cases meeting certain criteria to the USCIS Fraud Detection and National Security Directorate for further review. Throughout the process, FDNS provides relevant information to intelligence agencies and law enforcement.

And of course, all refugees are screened by US Customs and Border Protection and the Transportation Security Administration prior to admission.

The Cato Institute argues that under the post-9/11 security check regime, the security risk posed by Syrian refugees is miniscule. Why are our politicians trying to solve a problem that has been successfully addressed by the Department of Homeland Security?

Lessons From History

This is not the first time in recent history that Congress has offered a legislative fix to an immigration problem that has already been solved by the Executive. As my co-authors and I describe in Rejecting Refugees, the 1996 Illegal Immigration Reform and Immigrant Responsibility Act contained provisions aimed at to prevent immigrants from applying for asylum simply to obtain a work permit — a problem that had been solved by a regulation promulgated a few months earlier. In a similar turn of events, a string of terrorist attacks between 1993 and 1995 prompted politicians to appear tough on border control. The tightened standards made it harder for genuine refugees to find protection in the United States.

Why should we as Americans be concerned about turning away refugees? There are more lessons from history here. International refugee law grew strong as a political tool during the Cold War, as Western countries realized that the flight of dissidents out of Eastern Bloc countries sent an important message in the battle between capitalism and communism. By voting with their feet, these refugees demonstrated that capitalism was the winner when it came to hearts and minds. Though French President François Hollande seems to understand this lesson, American politicians are instead playing right into the hands of ISIS. The more refugees we reject, the less welcoming and more xenophobic America appears, the better for ISIS in its battle for hearts and minds.

There are also unmistakable moral lessons to be drawn. Governor Inslee of Washington describes our regrets over the internment of Japanese-Americans during the Second World War. My colleague Susan Martin has written eloquently on the parallels between American anti-Semitism during World War II and the current backlash against Syrian refugees. Within that story, there are specific lessons about the hazards of administrative bureaucracy. In June 1940, Breckenridge Long, the Assistant Secretary in charge of the Visa Division at the State Department, circulated a memo that suggested the following strategy:

We can delay and effectively stop for a temporary period of indefinite length the number of immigrants into the United States. We could do this by simply advising our consuls to put every obstacle in the way and to require additional evidence and to resort to various administrative advices which would postpone the granting of the visas.

Sound familiar? We all know what the result of Long’s policy was for Jews desperately trying to escape Nazi Germany. One can only hope that we don’t make the same mistakes with Syrians fleeing ISIS. 

About the Author(s)

Jaya Ramji-Nogales

I. Herman Stern Professor of Law and Co-Director of the Institute for International Law and Public Policy at Temple University Beasley School of Law