The U.S. Supreme Court in October will hear arguments on the travel ban that the President has called “an important tool for protecting our Nation’s homeland.”
But like so many of Donald J. Trump’s assertions, that claim is dubious. It rests upon two premises, neither one consistent with actual experience. Tellingly, many clues indicate that both originated with Attorney General Jeff Sessions, who began pushing them back when he was a U.S. Senator from Alabama, before the president had even been elected.
The first premise: Domestic terror is predominantly an imported danger. “The vast majority of individuals convicted of terrorism and terrorism-related offenses since 9/11 came here from outside of our country,” Trump declared in his February 28 address to Congress.
The second premise: Lenient immigration policies need to be tightened up to keep terrorists out. Without the travel ban in effect, “many very bad and dangerous people may be pouring into our country,” Trump tweeted earlier in February after a court stayed his initial order.
Those and other Trump pronouncements track very closely with positions pushed by Sessions last year when he chaired the U.S. Senate Judiciary Committee’s Subcommittee on Immigration and the National Interest.
In particular two documents released by Sessions in 2016, one in June and one in August, appear to have been significant precursors of Trump’s executive order, which the attorney general will have an important role in implementing. Yet in both documents, the stated conclusions contradict the facts they present.
In the June release, Sessions’s subcommittee issued a report seeking to establish that domestic terrorism more often than not comes from outside the U.S. borders. The report identified as foreign-born 380 of 580 individuals “convicted of terrorism or terrorism-related offenses between September 11, 2001 and December 31, 2014.”
Yet the list of 580 supposedly convicted terrorists is, to say the least, less than convincing.
Only 40 of 580 defendants were convicted for acts carried out or planned in the United States. A much larger number of cases involved actions allegedly supporting terrorism abroad, and a significant number of cases in all likelihood did not involve terrorism at all.
For example: the list includes 20 defendants, most or all of them Iraqis who settled in the United States in the 1990s, who were convicted for conspiring well before the 9/11 attacks to obtain fraudulent licenses to transport hazardous materials. Federal prosecutors explicitly said the scheme had nothing to do with terrorism or any terrorist group. All 20 of those defendants were given probation, and some paid modest fines; none received any prison time — sentences that almost certainly would have been harsher if there was any real suspicion that they might be dangerous.
(Altogether, the list shows that well over 100 of the 580 defendants received probation or were sentenced to time served — another strong suggestion that a good many of the listed cases were not seen as posing a serious danger.)
The hazmat license case is by no means the only one on the list with no apparent link to terrorism. Similar cases include:
- Two foreign students, one from Pakistan and one from Tunisia, who took jobs in violation of student visa regulations. Nothing in the available record of those cases indicates any terrorism link.
- A Lebanese-born physician in Michigan who was found guilty of Medicare fraud. Available documents, including the FBI’s press release on his sentencing, made no reference to terrorism. (If there were a connection it would almost certainly have been mentioned in this context, because any link with terror carries an augmented sentence.)
- An Afghan refugee husband and wife who were convicted for fraudulently claiming that the wife was married to a different Afghan (also found guilty in the case) in order to get him accepted for resettlement. Again, the U.S. attorney’s office press release announcing the convictions made no mention of terrorism.
Contrary to the reports produced by Sessions’s subcommittee, a large body of research strongly indicates that terrorists coming to the United States to commit jihad are hardly the greatest danger to U.S. citizens.
Statistics compiled by the New America Foundation, for example, show that of 94 people who have died in jihadist-inspired terror attacks on American soil since 9/11, 83 were killed by native-born U.S. citizens (one of them, involved in 14 of those deaths, acting with his foreign-born wife). Nearly all the other fatalities occurred in acts by a naturalized U.S. citizen or a lawful permanent resident. Not a single lethal attack was committed by anyone with refugee status or anyone, refugee or otherwise, from any of the countries covered by the travel ban.
Nor do the data support the conclusion that the problem is porous screening that lets suspects enter this country with criminal intentions.
A large proportion of the foreign-born defendants came to the United States as young children or had lived here for many years. A sizable number — 99, by my count — are identified on the list as naturalized citizens. Among people in those categories who embraced a violent ideology, the overwhelming majority would have been drawn to those views long after settling in this country, so they would not have been detected before they arrived no matter what screening procedures were in use.
Numerous research studies have concluded that that is actually the most common pattern, rather than inadequate vetting. A Department of Homeland Security intelligence assessment put it this way: “most foreign-born, US-based violent extremists likely radicalized several years after their entry to the United States, limiting the ability of screening and vetting officials to prevent their entry because of national security concerns.” That’s from one of two Homeland Security analyses, both completed after Trump issued his executive orders, which reached that conclusion.
Sessions’s second release, entitled “Refugee Terrorism Increases While Obama Administration Increases Flow,” focused specifically on persons who reached the United States through the refugee resettlement program. It provided an itemized list of 20 persons in that category who were “convicted for, or implicated in, terrorism or terrorism-related offenses.” In an accompanying statement Sessions declared that “top officials” had admitted “their inability to properly vet refugees.”
But like the earlier list, this one made a weak case for those scary words. None of the 20 was charged with a violent act of any kind in the United States, or had any concrete or credible plan for one. (In November, 2016, after Sessions’s list was released, a Somali refugee injured 11 people on the Ohio State University campus, none fatally.)
More than half of the refugees on Sessions’s list had spent years in the United States before being connected with any terrorism offense. Several came as young children. At least eight of the 20 had become U.S. citizens, meaning they would have spent a minimum of five years as permanent residents plus additional time, often one or even several more years, to complete the naturalization process. Likely, any terrorist leanings developed after they were admitted to this country, not before.
Though Sessions’s campaign was specifically responding to an Obama administration plan to admit more refugees from Syria, no Syrian refugee appears on either of his lists. To date, not one of about 18,000 resettled Syrian refugees has been implicated any terrorism case of any kind.
In backward fashion, Sessions’s own words have shown that his evidence and his conclusions don’t match. When he issued his June release, his accompanying statement included this sentence:
“This information, when considered in light of four major terror attacks in the United States in roughly the past year, alone – Garland, Texas; Chattanooga, Tennessee; San Bernardino, California; and, Orlando, Florida – makes clear that the United States lacks the ability to properly screen individuals prior to their arrival to the United States.”
In fact, those examples prove no such thing.
The two shooters in Garland, Texas, the shooter in Orlando, and one of the two San Bernardino shooters were all born in the United States. The Chattanooga shooter was born in Kuwait but came to the United States with his family at the age of 5 or 6, became a U.S. citizen while still a child, and according to FBI investigators was radicalized online much later.
The only perpetrator in any of those cases who would have gone through any immigration screening procedure as an adult was the wife in the married couple who carried out the San Bernardino shooting. She was not a refugee, but was admitted on a fiancee visa, and was not from any of the countries on the travel-ban list.
To sum up: if Trump’s executive orders had been in effect all along, there is virtually no chance that they would have prevented any of the cases on either of Sessions’s lists. In its argument to the Supreme Court, the Justice Department no doubt will repeat the president’s assertion that those rules will make the country safer. But the evidence for that conclusion simply does not hold up.
Arnold R. Isaacs, a journalist and writer based in Maryland, is the author of From Troubled Lands: Listening to Pakistani and Afghan Americans in post-9/11 America, and two books relating to the Vietnam war.