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International Migration And Terrorism:Prevention, Prosecution And Protection

International Migration And Terrorism:
Prevention, Prosecution And Protection
UC-CIIP Seminar, March 5-6, 2004
Philip Martin
May 2, 2004
US Responses 1
US Reactions 3
German Responses 4
German Reactions 5
Conclusions 5
Agenda 6

Since the September 11, 2001 terrorist attacks, most industrial democracies have enacted legislation centered on the 3 P's: preventing terrorists from entering or remaining in the country, prosecuting those who commit terrorist acts or support terrorists, and taking steps to protect residents from terrorist threats. In many cases, strategies to implement the 3 P's rely on tighter enforcement of long-standing immigration laws, not recent anti-terrorism laws, as when persons suspected of involvement with terrorists are removed for what were previously overlooked violations of immigration laws.

Most of the post-9/11 laws give governments more authority to deny entry, detain, and deport foreigners, and to share data so they become aware of foreigners who may be planning or supporting terrorist acts.

The UC Comparative Immigration and Integration Program held a seminar March 5-6, 2004 that explored American and European responses to the terrorist attacks. Immigration policies aim to facilitate the entry of foreigners whose presence is desired and to identify and deter the entry of unwanted foreigners. Immigration policy changes cannot prevent terrorism, but they are a key ingredient of the effort to combat terrorism. For example, the US government had given most of the 9/11 hijackers permission to enter, although some of their visas expired before September 11. Similarly, about 40 percent of the 8 to 9 million unauthorized foreigners in the US entered with seemingly valid visas, but did not abide by the terms of their visas by e.g. departing within 90 days.
US Responses
The US took a number of steps in the aftermath of the attacks. The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT), approved in October 2001, expanded the government's ability to conduct electronic surveillance, detain foreigners without charges and check on banking activities to detect money-laundering. For example, under PATRIOT, a foreigner may be detained for up to seven days without charges if the US attorney general certifies he is a suspected terrorist-although this authority had not yet been invoked almost three years after PATRIOT was enacted . PATRIOT allowed the US State Department and immigration authorities, for the first time, to have regular access to the FBI criminal database, the most extensive such database.

The Bush Administration took several steps using executive power to implement the 3 P's in Fall 2001. First, immigration authorities conducted intense worksite inspections of sensitive facilities, checking on workers who were employed in airports, seaports, power plants, and other infrastructure sites.1 Second, the US stepped up the effort to identify foreigners suspected of ties to terrorism,2 and to detect and remove those who had been ordered deported from the US; an ancillary effort was to require what turned out to be 83,000 mostly Muslim men in the US to register, The 13,000 with immigration violations were detained, and after being cleared of links to terrorism, the government sought to deport them. Third, the US put on a fast-track for implementation foreigner-tracking systems that had been approved after the 1993 World Trade Center bombings, viz, to monitor foreign students and visitors to the US.

There was, however, no major effort to reduce legal immigration to the US. President Bush in October 2001 made a statement typical of political leaders: ""We welcome legal immigrants, and we welcome people coming to America. We welcome the process that encourages people to come to our country to visit, to study, or to work. What we don't welcome are people who come to hurt the American people." Immigration remained high: there were 1.1 million immigrants in FY02, but the number of refugees fell sharply because of problems with the implementation of stepped-up security checks, from 68,000 in FY01 to 27,500 in FY02.

The US changed its visa issuance procedures with enactment of the Enhanced Border Security and Visa Entry Reform Act (EBSVERA) of May 2002. Almost 10 million foreigners a year apply for visas to enter the US, and about 75 percent receive visas. Before September 11, 2001, consular officials checked applicants against a "Look-out list" that had almost six million names, but not against any other databases. Consular officers in Muslim nations, and eventually in all nations, can no longer issue visas until receiving confirmation that the applicant is not in the FBI database as a suspected terrorist or supporter, a process slowing visa-approvals and discouraging visitors from Muslim nations.

Congress also ordered two previously required tracking systems to be put in place. The Student Exchange Visitor Information System requires universities to report on foreign students-that they arrived and are studying etc-with foreign students paying for their tracking system with a $95 fee. The second tracking system is the US Visitor and Immigrant Status Indicator Technology program (US-VISIT), which requires foreign visitors to be photographed and electronically fingerprinted when they arrive in the United States, and to register their departures.

About 530 million people, one-third of them returning Americans, cross U.S. borders each year. Most arrive via the 150 ports of entry along land borders with Canada and Mexico, and previous efforts to require the registration of entries and exits were blocked because of the fears that cross-border traffic would be slowed.3 However, the US government has now begun to implement tracking at the Mexico-US land border, but it is exempting Mexicans with laser visas or border crossing cards that allow border-area visits for up to 72 hours from registering their entrances and exits. Critics say that this exemption would easily allow a terrorist to "borrow" a laser visa and enter; supporters say that universal entrance-exit checks would clog border crossings.

The major institutional change after 9/11 was the creation of the 177,000 employee Department of Homeland Security, the largest government reorganization since the Defense Department was created in 1947. The INS was abolished, and replaced by three agencies within DHS: US Customs and Border Protection, US Immigration and Customs Enforcement, and US Citizenship and Immigration Services. The CBP has 42,000 employees to inspect arriving passengers at ports of entry and to patrol between ports of entry, ICE has a $3.7 billion in FY04 for interior enforcement, but only $11 million or 0.3 percent is devoted to worksite enforcement, and USCIS has a goal of a maximum six-month lag between application and decision, but in 2004 had a backlog of 6.2 million applications for immigration benefits, including 750,000 applications for naturalization and 1.2 million applications for immigrant status.

The US continues to be on alert for terrorists, with the government issuing bulletins warning of threats. For example, in April 2004, the FBI warned 18,000 state and local police agencies that foreign terrorists might attempt to enter the US with P-visas, which are granted to foreigners coming temporarily to the US for artistic, cultural or sporting events. There were 41,500 P-visa admissions in FY02 for foreign athletes who compete individually or as part of a team at an internationally recognized level and aliens who perform with or are an integral part of the performance of an entertainment group that has received international recognition as "outstanding" for a "sustained and substantial period of time."
US Reactions
There is a fine line between obtaining the cooperation of immigrant communities and searching for terrorists within them. Those who believe there is an ongoing war on terror tend to favor more intrusive tactics than those who treat terrorist acts as criminal events. The US government's registration system, mounted under the war metaphor, may have hindered, according to many observers, the cooperation with immigrant communities needed to resolve criminal cases and head off future terrorist threats.

A typical case of enforcing immigration laws tightly was profiled in, the Washington Post. A Jordanian immigrant who had been in the US for over a decade is in the process of being deported to Jordan for falsely asserting in 1992 that he was not married and not divorced, a violation that would likely have been overlooked before 9/11.4 His mother, a legal immigrant, brought him to the US as an unwed son after he divorced his Jordanian wife; after arriving in the US, he remarried her, and this lie to get into the US led to his immigration status being revoked.

However, the Jordanian man came to the attention of the Department of Homeland Security because he was convicted in absentia by a Jordanian military court for bombings in Amman in 1998. The convictions were later overturned, but the man did not return to Jordan for the appeal, so the conviction remained on his record. DHS officials say they are checking the immigration records of hundreds of U.S. residents suspected of ties to terrorism, looking for violations in order to jail and potentially deport them.

After September 11, 2001, hundreds of Arab and South Asian men were arrested and removed from the United States, usually for immigration violations that previously would have been overlooked. Critics say that DHS is taking advantage of the fact that US immigration laws are routinely violated, and that the fewer protections available to suspects in immigration courts, rather than in criminal courts, make immigration charges the easiest path to remove foreigners from the US.

DHS in mid-April 2004 announced new measures to assure timely decisions on whether foreigners detained for suspected ties to terrorism had such ties. This new policy aimed to eliminate "indefinite detention," a practice criticized by the Justice Department's inspector general in June 2003. The criticism centered on the roundups of Fall 2001, when many of the 760 foreigners detained an average of 80 days were denied due process rights and some were subjected to harsh treatment in detention. The FBI put a low priority on clearing detained foreigners held for violations of immigration laws of any links to terrorism. When these foreigners were ultimately deported, they told their stories to Arabic-language media, reinforcing negative perceptions of the United States in Muslim countries.
German Responses
Germany responded even faster than the US with new legislation after 9/11. On September 19, 2001, just 8 days after the attacks, the government changed its laws to allow the prosecution of foreigners in the country who were members of terrorist groups even if the terrorist group had no presence in Germany.5 As in the US, the German government expanded database sharing among enforcement agencies, checked on persons employed in critical infrastructure facilities, and changed immigration procedures to refuse entry to persons who may pose a threat.

In Germany and most European countries, the percentage of foreign residents who are illegal is far lower than in the US, where 10 million of 35 million-almost 30 percent-of the foreign born are believed to be unauthorized. Within Germany, foreigners authorities gained new powers to refuse to renew residence permits, and it became easier to remove criminal foreigners, including those whose crimes were committed outside Germany. European countries including Germany are reluctant to remove foreigners to countries where they face the death penalty, which is one reason why the so-called Caliph of Cologne has not been removed to Turkey despite being convicted of a murder in Berlin (he also faces charges in Turkey).

Germany also tightened its naturalization procedures after September 11, requiring applicants to disclose any past crimes under the penalty that, if such crimes are later discovered, German citizenship can be revoked. The 16 German states that actually naturalize foreigners can and often do send applications to a federal office to check for criminal records, which can slow down naturalization.

Germany continues to debate the line between asylum and terrorism, grappling with cases in which asylum seekers say they are freedom fighters at home rather than terrorists. This is relatively more important in Germany and Europe because of European laws that place stricter limits on how long a foreigner can be detained.
German Reactions
Reactions to terrorism occurred at the national and EU levels. Within Germany, the push for a immigration law that opens new channels for legal immigrants has been slowed, and any new immigration law enacted in 2004 is likely to address anti-terrorism concerns as well. There are already administrative changes, including experiments with requiring foreigners applying for visas in "problem countries" to be fingerprinted.

Perhaps the major issue will be asylum. Germany and other European countries receive large numbers of foreigners who apply for asylum; asylum applicants are provided with room and board while their applications and appeals are pending. A major question facing many European countries that have ratified the 1951 Geneva Convention, which obliges countries not to return to danger persons who have a well-founded fear of persecution on account of race, religion, nationality, political opinion or membership in a particular social group (the nonrefoulement obligation). is what to do about asylum seekers linked to terrorism.

UNHCR believes that the procedure should be to first determine if a person seeking asylum is a refugee, and then determine if e.g. refugee status should be withdrawn because of a terrorist act committed before entering the country (inclusion before exclusion). However, some governments argue that membership in terrorist groups is sufficient to be denied refugee status, and that such persons should not be permitted to enter and seek asylum.

After the 1993 World Trade Center bombing, the US reformed its asylum procedures to deal with the newest applications first, and the result was that the number of applications fell and the approval rate increased. Some foreigners file affirmative applications, meaning that they enter the US and apply, while others file defensive applications, meaning that they apply after being apprehended and placed in removal proceedings.6 The number of affirmative applications fell sharply; it was 66,600 in FY02 and 48,700 in FY03, and 12,200 applicants gained refugee status in FY03. Since the mid-1990s, foreigners must normally apply for asylum within one year of arrival in the US.

At the European Union level, a common passport with biometric identifiers is being introduced, the common visa issuance system is being expanded, and an EU-wide border management agency is being created to promote cooperation and database sharing among police agencies. However, privacy concerns as well as European courts' insistence on making individual determinations of whether persons are potential threats are likely to limit sweeping responses such as the US registration system for Muslim men.
On both sides of the Atlantic, there were three major immigration responses to the September 11, 2001 terrorist attacks. First, immigration laws already in effect were enforced more vigorously-violations that previously would have been tolerated became grounds for detention and removal. Second, governments received new powers under new laws, some enacted hastily, and third, with no end to the war on terror in sight, courts began to exert their power to balance security and freedom.

Even if all the new laws and measures had been in place before September 11, 2001, there would have been no guarantees that they could have prevented the terrorist attacks. This fact explains some of the tendency to rein in enforcement agencies that gained new powers, personnel, and funding. The consensus is that, if there is not another major terrorist incident, the courts are likely to further refine the balance between security and liberty. However, if there is another major terrorist incident, there is likely to be another turn of the enforcement screw aimed at foreign terrorists and their supporters in or seeking entry to industrial countries.


Migration And Terrorism:
US and European Perspectives
Friday-Saturday, March 5-6, 2004
Meeting: CCIS, Room No. 115, Eleanor Roosevelt College, UCSD
Lodging: Empress Hotel of La Jolla, 7766 Fay Avenue
Tel 858-454-3001 or (888)-369-9900

The September 11, 2001 terrorism incidents led to legislation affecting migration in the US and Europe. This seminar will assess the effectiveness of the laws and procedures enacted to deter terrorists, their impacts on migration flows and migrant communities, and their implications for transatlantic cooperation on migration management. We appreciate the support of the UC Center for German and European Studies.

Thursday, March 4, 2004, Arrivals
7PM Informal dinner:

Friday, March 5, 2004, CCIS, Eleanor Roosevelt College
9AM Welcome and Introductions, Philip Martin, Kay Hailbronner and Wayne Cornelius

9:30AM US and German Legislative Responses to 9/11
David Martin, U-Virginia, Rudolf Roy, Innenministerium, Stefanie Schmahl, Uni Potsdam, Marianne Wiedemann, Uni Konstanz

11AM Break

11:15AM Discussion

12PM Lunch

1:30PM Reactions to Post 9/11 Changes
Wayne Cornelius, UCSD, Agustin Escobar, Mexico, Lucas Guttentag, ACLU, Robert McLaughlin, U-Chicago
Christian Klos, EU, Philippe de Bruycker, Free Uni-Brussels, Olaf Reermann, Germany, Martin Keicher, Uni Konstanz

3PM Break

3:15PM Discussion

4PM Adjourn

7PM Dinner

Saturday, March 6, 2004, CCIS, Eleanor Roosevelt College

9AM Refugees and Asylum after September 11
Susan Martin, ISIM and Anja Klug, UNHCR

10:30AM Break

10:45AM Discussion

12PM Lunch

1 For example, under Operation Tarmac, INS checked the documentation of everyone with access to secure areas of the 429 commercial airports in the US and arrested about 800 airport workers, including immigrants who used false documents to get airport jobs; some were US citizens who did not disclose convictions on their applications.
2 None of the 1,200 foreigners arrested and detained after September 11 was charged with an act of terrorism. Instead, after periods of detention that ranged from weeks to months, most were deported for violating immigration laws.
3 Congress in 1996 ordered the INS to develop a tracking system to record the entrance and exit of foreigners at all US ports of entry by October 1, 1998, but Canada and northern US border states blocked its implementation because they feared that long lines would slow cross-border commuting, trade and tourism.
4 Mary Beth Sheridan, "U.S. Anti-Terrorism Tactic: Immigration," Washington Post, March 29, 2004.
5 However, terrorist organizations are not defined under German or international law.
6 Applications can also be filed at the border if a person tries to enter with no of false documents, and if the person makes a credible claim of persecution at home, they can file a defensive application.