The following article by Michelle Ye Hee Lee was posted on the Washington Post website January 29, 2017:
There are many unknowns about the application and legality of President Trump’s immigration executive order Friday blocking refugees and banning entry of citizens from seven mostly Muslim countries. But there are facts we do know about the source of terrorism in the United States since Sept. 11, 2001, and Trump’s authority to enact a ban on classes of people he deems a national security threat.
As a reader service, we compiled a Q&A that might help discern fact from conjecture in the debate over Trump’s executive order. We welcome reader suggestions for fact-checkable claims.
What authority does Trump have to ban certain classes of people from entry?
The president has broad powers to deny admission of people or groups into the United States. We dug into this in depthbefore. But Trump’s executive order is wide-ranging, and its application probably will play out in court — especially if it affects reentry of legal permanent residents, dual nationals and current visa-holders.
Benjamin Wittes, senior fellow in governance studies at the Brookings Institution, argues that the executive order is so poorly written that many of its key provisions would be difficult to defend in federal court.
In the executive order, Trump asserted his authority under the Immigration and Nationality Act of 1952 and Title 8, Section 1182 of the U.S. Code. Under that provision, the president has authority to use a proclamation to suspend the entry of “any aliens or of any class of aliens into the United States [who] would be detrimental to the interests of the United States” for however long he deems necessary. This provision was included in the Immigration and Nationality Act of 1952.
The executive branch has broad discretion through this authority. In 2015, the Supreme Court ruled that the government can deny someone a visa on national security grounds without a specific reason.
Interestingly, it was a fear of communists that drove Congress to give this power to the president more than six decades ago. President Harry S. Truman vetoed the Immigration and Nationality Act of 1952 — and in a lengthy statement, he cited concerns about broad powers being granted to the executive branch, even to “minor immigration and consular officials.”
Truman wrote in his veto statement: It repudiates our basic religious concepts, our belief in the brotherhood of man, and in the words of St. Paul that “there is neither Jew nor Greek, there is neither bond nor free …. for ye are all one in Christ Jesus.”
But Congress overrode Truman with a bipartisan veto-proof majority. With a veto-proof majority, Congress can decide to rewrite the law to take away or limit Trump’s authority under the Immigration and Nationality Act.
Although immigration advocates are decrying Trump’s executive order, the authority that Trump invokes is the flip side to Obama’s use of his broad authority to choose not to deport large groups of people and to consider them eligible to be in the United States through the deferred-action program. Trump is proposing to use the same type of broad presidential authority — but using it to limit, rather than expand, immigration.
Are foreign-born people more likely to attack the U.S. homeland?
The executive order says “numerous foreign-born individuals have been convicted or implicated in terrorism-related crimes since Sept. 11, 2001, including foreign nationals who entered the United States after receiving visitor, student, or employment visas, or who entered through the United States refugee resettlement program.”
Of about 400 individuals charged with or credibly involved in jihad-inspired activity in the U.S. since 9/11, just under half (197) were U.S.-born citizens, according to research by the nonpartisan think tank New America Foundation. An additional 82 were naturalized citizens, and 44 were permanent residents.
“Far from being foreign infiltrators, the large majority of jihadist terrorists in the United States have been American citizens or legal residents. Moreover, while a range of citizenship statuses are represented, every jihadist who conducted a lethal attack inside the United States since 9/11 was a citizen or legal resident. In addition about a quarter of the extremists are converts, further confirming that the challenge cannot be reduced to one of immigration,” according to the report.
Homegrown terrorism, especially among lone attackers who are not a part of a larger network, is a growing concern, especially when it comes to American citizens who are radicalized online. Social-media platforms have played an important role in the radicalization of American sympathizers of the Islamic State, a George Washington University study of Islamic State recruits in the U.S. found.
The New America Foundation notes that it was American-born cleric Anwar al-Awlaki who has had the most widespread influence on radicalization, even more than five years after he was killed in an American drone strike in Yemen.
Trump’s executive order applies to migrants, refugees and U.S. green-card holders from seven countries: Iraq, Iran, Sudan, Somalia, Syria, Libya and Yemen. That means the order would not have prevented some of the most high-profile terrorist attacks by individuals from countries excluded from that list, including the 9/11 hijackers, the San Bernardino attackers and the Boston Marathon bombers.
How much of a threat do refugees pose to the U.S. homeland?
It’s not always clear to the public whether or how an individual obtained refugee status. The distinction is not always made in news coverage or court records. There are other individuals identified as refugees who have been arrested on terrorism charges since 9/11 but whose means of obtaining refugee status remains unclear publicly.
In general, resettled refugees have not been a major terrorist threat to the U.S. homeland. On occasion, refugees have posed terrorism threats and have been linked to international terrorist groups: There have been at least 10 occasions since 2009 when refugees were arrested on terrorism-related charges in the United States, but that’s a tiny percentage of the refugees admitted in that period.
Seth Jones, director of the International Security and Defense Policy Center at the RAND Corporation, and who served on the 9/11 Review Commission, testified to Congress in June 2015:
“The threat to the U.S. homeland from refugees has been relatively low. Almost none of the major terrorist plots since 9/11 have involved refugees. Even in those cases where refugees were arrested on terrorism-related charges, years and even decades often transpired between their entry into the United States and their involvement in terrorism. In most instances, a would-be terrorist’s refugee status had little or nothing to do with their radicalization and shift to terrorism.”
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