Author's Note: This is the first in an occasional series discussing the use of immigration law to augment the U.S. government's counterterrorism strategy.
Just this month, the American Enterprise Institute published a report by Katherine Zimmerman entitled "Terrorism, Tactics, and Transformation: The West vs the Salafi-Jihadi Movement".
Zimmerman makes the case that, even as the United States militarily confronts and defeats groups such as ISIS and al Qaeda in more traditional territory-based theaters of conflict, we, and the West more generally, are losing ground because the groups morph, disguise themselves, become more loosely aggregated into cells, and recruit new members. And domestically, terrorism is generally dealt with on a one-to-one basis through the criminal justice system, which renders it difficult for government to rend the fabric of terrorist groups' holds within our national borders.
This report comes at a time when media are reporting that — in no small measure because of the recovery of swaths of territory previously held by ISIS in Iraq and Syria — hundreds of mass graves are being uncovered, revealing the depth of depravity practiced by adherents of the group in murdering those held to be enemies or apostates or otherwise unsuitable to their brand of Islam. International groups are expressing deep concern that the sites will not be preserved, and thus critical evidence will be lost that could be used to try members and leaders for war crimes, crimes against humanity, and even genocide.
Another difficulty in using the criminal justice system to prosecute and imprison jihadists is that it requires proof "beyond a reasonable doubt" that a particular crime was committed or attempted, or that a conspiracy was afoot that would lead to the crime. This is time-consuming and resource-intensive work. It is also dangerous in that, with the exception of undercover "sting" operations, it requires federal agents to discover and disrupt the plot in time to prevent the kind of murder and mayhem such as we have seen time and again when they aren't so lucky.
While it may be desirable whenever possible to jail such individuals — preferably for significant stretches of their lives if it saves other people's — it isn't enough. Speaking from experience, I know that federal agencies are often aware of individuals within our midst whose views are extreme, and whose conduct teeters on the edge of dangerous but doesn't cross it. Surveilling them (again, a time- and resource-intensive endeavor) is like watching a ticking bomb: When will it go off?
One underutilized alternative is to use the immigration laws to apprehend and expel the "wannabes" and the much more dangerous "biding-time" from the alien population within our borders. This, too, can be difficult for procedural and evidentiary reasons — and, ironically, even requests for relief from removal by individuals whose belief systems lead them to see us as the fount of all evil. Even so, it can be preferable to waiting for someone to sufficiently radicalize and cross the line from thought to action.
In the context of U.S. immigration law, both Sunni-oriented al Qaeda and ISIS are designated international terrorist organizations as defined in Section 217 of the Immigration and Nationality Act (INA), as are a host of others, including Shia extremists such as Hezbollah, a Lebanese-based group closely affiliated with Iran. Other provisions of the INA (at Sections 212(a)(3)(B) and 237(a)(4)(B)) authorize the removal of representatives, members, associates, and supporters of designated terrorist organizations.
The apparent utility of these removal provisions is limited in a practical sense by evidentiary standards. After all, it is unlikely that such representatives, members, associates, or supporters are likely to advertise their participation in or links to such groups. They won't be carrying membership cards in their wallets. So it is that establishing the links must often be by evidence taken surreptitiously — sometimes using clandestine or classified methods that the collecting agencies are loath to reveal in an open proceeding in immigration court. While immigration proceedings permit the introduction of classified or law-enforcement-sensitive evidence in camera and ex parte, their use is inevitably controversial. Further, the rules governing such evidence still require that a generalized statement of the nature of the allegations be provided to the alien or his counsel.
Much internal haggling goes on over exactly what to say and how to say it, so that it meets due process muster for giving the alien a chance to rebut the charge while at the same time maintaining the secrecy of sensitive sources and methods. Even so, it is remarkable that the government doesn't attempt to use the immigration court process more frequently as a means to expel potentially dangerous aliens with a nexus to terrorism, rather than risk an unexpected attack.
Note that both the immigration removal statutes and the criminal laws prohibit providing material support to a terrorist organization. Why, then, would the government opt for expulsion over prosecution in such a case? The answer is that, in removal proceedings, support for a terrorist organization is strictly construed and provides no avenue to plead mitigation based on measures of significance vs. insignificance. In criminal proceedings, the question of materiality will weigh heavily in the mind of the prosecutor, and relatively minor instances of "support" may not carry much jury appeal, leading to concerns that the defendant would not be convicted.
Institutionalizing this route in terrorism investigations nationwide would likely require four things:
- An executive order from the president directing the nation's security and intelligence apparatus to work closely and cooperatively with Immigration and Customs Enforcement (ICE) officials in identifying appropriate cases to pursue. The logical place for such identification is through Joint Terrorism Task Forces (JTTFs).
- An advance discussion among and between representatives of ICE, officials in its parent Department of Homeland Security, officials from the Justice Department and the FBI, and officials from the Central Intelligence Agency and Defense Intelligence Agency that defines the parameters of such cases and the ground rules for producing the unclassified summaries that will be needed in immigration removal proceedings.
- A commitment on the part of the entire government to litigate the cases to the fullest in order to beat back the wave of appeals that they would engender, as well as rebutting accusations of "Kafkaesque" treatment in the court of public opinion, by explaining how and why such proceedings protect the public safety and national security.
- An understanding and commitment from all concerned that, once individuals have been identified, prior to undertaking removal proceedings based on classified or law-enforcement-sensitive information, no stone should be left unturned in looking at each case to determine whether the alien might have violated other immigration-related criminal or civil provisions of law (such as visa fraud or violation of student visa requirements) that provide the means to an end — incarceration and, ultimately, expulsion to protect the public — prosecution of which doesn't require revelation of sensitive sources and methods.
In sum, at a certain point the collective resources of the FBI, even augmented by its other agency partners in such constructs as JTTFs, will be inadequate to provide the kind of resource-intensive attention needed to focus on Islamic extremists, especially in the face of a jihadist diaspora created by military victories abroad, in the dusty fields of Iraq, Syria, or even the Horn of Africa.