Yesterday, the House, under the guidance of its brand new speaker, passed HR 4038, or The American Security Against Foreign Enemies (SAFE) Act of 2015. Like the PATRIOT Act and other hastily-assembled bills brought on the floor in the wake of major political events, it's deeply flawed, and may in fact be unconstitutional. It also reflects a deep lack of understanding about the existing processes for handling applicants for refugee status and asylum in the United States.
The bill, which still needs to go to the Senate and pass the President's desk, puts a complete halt on refugee applications from Iraq and Syria. According to NPR, it would also: "Require the Secretary of Homeland Security, the head of the FBI and the director of national intelligence to sign off on every individual refugee from Iraq and Syria, affirming he or she is not a threat." That establishes a massive administrative burden that would functionally extend the temporarily halt indefinitely by creating a massive bottleneck in the asylum process.
Much has been made in recent days of the 31 governors who have stridently insisted that they will refuse to allow refugees into their states, and the legislators who have joined them. That commentary has included a great deal of snark and some unnecessary mockery (if the goal is to convince people to accommodate refugees, rather than just be self-satisfied) about America's history — as a land colonized by Europeans fleeing religious prosecution, who most certainly weren't required to pass stringent security checks at the border.
It's also discussed the refusal to accommodate boats of desperate Jewish refugees in the years prior to and during the Second World War, and the mayor of Roanoke, who namechecked Japanese internment to justify keeping refugees out.
Historically, the United States also passed legislation like the Chinese Exclusion Act, which had the effect of keeping Chinese people, including many refugees such as those fleeing the Boxer Rebellion in 1900, out of the United States. This is a country with a long xenophobic history under colonial occupation, and it is perhaps not a surprise that Congress is doubling down — in the wake of vicious terrorist attacks that took place somewhere else, no less.
While Daesh (aka ISIS/ISIL) is indeed rapidly spreading, and is posing a growing threat to the West, the notion that Daesh terrorists are planning to flood across the borders disguised as refugees is patently untrue. Moreover, the one perpetrator involved in the Paris killings who was accused of using a fake Syrian passport proved to be a plant — Daesh wanted to actively stoke fear and hatred of refugees, because it suits their interests.
One of the best ways to radicalize a population is to whip up xenophobic hatred that makes it difficult for that population to find a safe home, even as it's fleeing a country of nonstop violence.
As the ACLU reminded Americans -- while a growing group of governors flew their national security flags high -- states do not actually have the power to set immigration policy. There are a number of reasons for that, not least of which is that a patchwork of regulation would actually make border control functionally impossible. If, for example, Arizona has strict entry standards — as it attempted with legislation later struck down by the Supreme Court — and California has looser ones, people will simply shift to entering over the California border.
The Constitution is also quite clear on the matter of discrimination, with the 14th amendment indicating that the nation may not discriminate on the basis of "national origin" (say, Syria) or "creed" (as for example Islam). Multiple states have similar amendments on their own constitutions and they're further backed by a cornucopia of legislation and caselaw.
Indicating that people seeking refugee status are subject to special screening is discriminatory, and further narrowing it to people from specific categories is even more discriminatory — this is a law that is doomed from the start to be struck down, even if it does pass and Congress manages to override the veto.
Refugees specifically receive certain rights and protections under the law, and the Refugee Act of 1980 reinforced these. They are also some of the most tightly regulated entrants into the United States: People entering the country on holiday or to work have less stringent requirements than refugees, despite the fact that people fleeing violence have a rather pressing need to get to safety. In fact, those complying with the lengthy and complex process may have to wait as long as two years before being allowed to resettle into the United States.
In order to qualify for refugee status and obtain resettlement, refugees have to apply through the United Nations High Commission on Refugees, which confirms their status and determines where they should go. This can depend on where family members are and other factors — and if assigned to enter the U.S., people must already pass background checks from a number of organizations, including the Department of Homeland Security.
These agencies collect biometric information from applicants in addition to personally interviewing each and every single one to gather biographical details and confirm that they're actually refugees, not people falsifying their immigration status. Syrians in particular are subject to additional screening even without the new law.
President Obama has made it crystal clear that should the bill make it through the Senate and pass Congress, he will veto it when it comes across his desk. At the same time, he's advocating for an increase in the number of refugees the United States will accept, noting along with others that the country is well-prepared to absorb them. 10,000 more refugees, the number he cites, is not a significant number of people — it's less than the population of many small towns, and it will be scattered across the country. As with other refugees, Iraqis and Syrians will likely find their homes in communities that already have sizeable populations of people from similar backgrounds, and these communities offer a support network that will quickly get them on their feet.
The more difficult we make it for refugees to enter the county, the more likely they are to attempt to enter illegally, because they can't afford to wait for documentation. Undocumented immigrants haven't been screened at all, and they're at risk of both radicalization (a national security problem) and exploitation (a human rights problem). Facilitating rapid screening and entry into the country ensures that people don't have an incentive to enter illegally, which allows the United States to get a better picture of who is here.
Ultimately, yes, legislators and governors are right: A terrorist could enter the United States on a refugee visa, and that terrorist could escape the substantial surveillance state and commit an attack on the U.S. There is absolutely no way to control for every possible eventuality.
However, of note is the fact that the September 11 hijackers were overstaying tourist and business visas. People planning to commit terrorist attacks aren't going to select one of the most difficult paths to legal residence in the United States. They're going to choose one of the most obvious and direct — overstaying a tourist or business visa — or they're going to use human traffickers to get across the border without detection.
The United States, moreover, is full of domestic terrorists of far greater concern because they are already committing acts of terrorism. Timothy McVeigh was a U.S.-born citizen. The perpetrators of multiple acts of terrorism against abortion clinics and providers are all from the United States. John Walker Lindh was a radicalized U.S.-born American citizen.
Born citizens don't undergo detailed screening to determine if they might be terrorists, though naturalized citizens do, and the process of obtaining citizenship is in quite grueling. Naturalized citizens and those entering the country through legal channels generally don't have plans to commit acts of mass violence, because, frankly, the considerable trouble they take to get into the U.S. and be legally recognized suggests that they have an investment in being part of America.
Refusing refugees is illegal and unAmerican, a betrayal of values that we have faltered on repeatedly in the past, causing the deaths of thousands of innocent people. It's an act of profound discrimination and hatred, and it speaks poorly of us as a nation. It will hinder U.S. foreign policy — even as Europe has been mishandling a refugee crisis for over a decade, the United States has been adding to it, and the subject is becoming a pressing international as well as domestic issue.
Letting refugees in is the right thing to do, not just legally, but morally. If we can offer shelter, we should provide it — and the refugees who come to America will find their own ways to contribute to the things about America that I love. I stand in opposition to any legislation that proposes some lives are worth more than others, that turns America's back on those most in need. Hounding refugees with violence as they flee from place to place won't stop terrorism, but it will induce unspeakable suffering.