"Was George Washington a terrorist?" asked Bill Frelick, Human Rights Watch’s refugee policy director, only semi-facetiously.
What sparked his question was the exceedingly broad definition of terrorist activity employed in U.S. immigration law. That definition, as expanded in the USA PATRIOT Act and REAL ID Act, applies to "any activity which is unlawful under the laws of the place where it is committed," when that activity involves the use of a weapon or "dangerous device" with the intent "to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property." The actions of a present-day George Washington would most certainly be covered.
A concrete reason why this broad definition is worrying is that under current U.S. law, people who have engaged in terrorist activities, or who have provided support for terrorist activities–in many cases, even involuntary support–are presumptively barred from resettlement in the United States as refugees. Among the thousands of people negatively affected by this rule in recent years have been Colombians who paid small bribes under duress to paramilitary groups, Burmese who were forcibly conscripted into rebel armies, and Cubans who supported "counter-revolutionary" groups funded by the US government.
The patent unfairness of this broad ban has garnered congressional attention and, as of last year, the problem was supposed to have been remedied. In December, Congress passed legislation that broadened executive authority to grant waivers to deserving refugees who would otherwise be barred under the law’s overly broad "terrorism"-related bans.
Yet the reform does not seem to have worked. In recent months it has become clear that, despite the changes in the terms of the law, the Department of Homeland Security is continuing to bar refugees who should benefit from the expanded waiver authority. These people have fled their countries to escape persecution, and they’re being told that they’re terrorists. What is going on?
Democrats and Mujahideen
Since the December amendments to the immigration laws, a number of refugees have received letters from the Department of Homeland Security informing them that they are being denied permanent residence in the United States because of facts that they stated on their applications for refugee status.
Among those who have received such letters are:
. Iraqi refugees who took part in failed efforts to overthrow Saddam Hussein in the 1990s;
. Afghans who supported the mujahideen groups that fought the Soviet occupation of Afghanistan, including groups that the United States funded;
. Sudanese who belonged to the Democratic Unionist Party, a democratic party opposed to the current Sudanese government and a partner in U.S. negotiations in the region.
In rejecting these people’s applications for permanent residence, DHS is relying on facts that, in many cases, were fully disclosed in their initial refugee applications. Circumstances that, in other words, were deemed acceptable under what were supposed to be tougher rules are now being relied upon to bar people from staying in the United States. In some instances, moreover, the department appears to be characterizing First-Amendment-protected speech as support of terrorism.
Politicians and Bureaucrats
Although the omnibus appropriations bill that was passed by Congress last December was lauded as an important immigration law reform, the officials at the Department of Homeland Security charged with implementing the new rules don’t seem to have gotten the message. Before too many deserving refugees are barred from the United States as terrorists, there needs to be clear and authoritative guidance from on high.
Senior DHS officials need to review the rules being applied in these cases to ensure that the Department of Homeland Security is actually implementing the statutory waiver authority that it has been granted. Congress has spoken and the law has changed: "Terrorism"-related immigration bans should not be applied to refugees who do not pose any threat to the United States.
In the longer term, of course, the law’s definition of terrorism should be narrowed to reflect a more meaningful, common-sense understanding of the term. While expanding DHS’s waiver authority was a step forward, it is still absurd that a present-day George Washington would require a waiver to settle in the United States.
JOANNE MARINER is a human rights attorney.