Congressional Misunderstandings of Trump Travel Restrictions - The Libyan Report

Congressional Misunderstandings of Trump Travel Restrictions

I testified recently at a hearing before two House subcommittees (one from the House Judiciary Committee, the other from the House Foreign Affairs Committee) captioned "Oversight of the Trump Administration's Muslim Ban". The title tells you all you need to know about the foregone conclusions of the organizers, but the statements of, and questions by, one particular member in question show how short their memories are, and how little they know about a subject over which they hold significant power.

By way of background, as I stated my testimony:

[A]pprehensions about exploitation of the [Visa Waiver Program] by European nationals led to passage of the "Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015", passed as part of the Consolidated Appropriations Act of 2016. That act barred nationals of Iran, Iraq, Sudan, and Syria, as well as individuals who had travelled to those countries or to Libya, Somalia, or Yemen, from accessing the VWP. In order to further plug the holes in our national-security screening system and protect against foreign threats, between January 27, 2017 and September 24, 2017, President Donald Trump issued two executive orders (EOs) and one presidential proclamation restricting and limiting the entry of certain foreign nationals to the United States. While those actions were deemed "travel bans", this is a misnomer, as each only applied to certain nationals from specified countries.

The proclamation in question was Presidential Proclamation 9645, "Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats" (PP 9645). PP 9645 restricted the entry of certain categories of nationals of the Islamic Republic of Iran, the State of Libya, the Democratic People's Republic of [North] Korea, the Federal Republic of Somalia, the Syrian Arab Republic, the Republic of Chad, the Bolivarian Republic of Venezuela, and the Republic of Yemen. Restrictions on Chad were subsequently removed in a separate proclamation.

The restrictions in PP 9645 are not absolute. Rather, they are subject to a number of exceptions, limitations, and waivers, each of which I discussed in my testimony. As I explained in my oral statement:

Protecting the safety, institutions, and wellbeing of the American people — citizens, nationals, and lawful immigrants — is the primary duty of the United States government. For decades, individuals, both foreign and domestic, have posed risks to our people and our institutions that the U.S. government must constantly combat. ... With respect to threats from abroad, the State Department, DHS, and our intelligence agencies must be constantly vigilant to ensure that individuals who pose a security or public-safety risk are unable to reach our shores. State Department consular officials and CBP officers play critical roles in this effort. Millions of foreign nationals seek visas to enter our country each year, and it is their job to screen each of them. State and CBP must ensure that those individuals are who they claim to be, are coming for the reasons they assert, and will remain only as long as they are permitted. Presidential Proclamation 9645, and the review that led to its issuance, assist them in that effort. In that review, DHS, with the assistance of State and the DNI, developed a baseline for the information needed to identify visa applicants, and assess whether they pose security or public-safety risks. This begins with travel documents. If the documents presented are not reliable, or can't be verified, they're worthless for identification purposes. Next, our officers rely on information provided by foreign governments to assess the risks posed by visa applicants. Vetting is only as good as the information U.S. officials have at their disposal. Finally, an assessment of country conditions, and in particular whether terrorist groups operate in those countries and whether those countries themselves are hostile to the United States, are critical facts in assessing the intentions of any individual visa applicant.

Pretty straightforward stuff: There are a number of bad people in the world, and some of those bad people want to come to the United States and harm the American people. It is the duty of DOS and CBP to keep them out, and PP 9645 makes that job easier.

On June 26, 2018, the Supreme Court issued a decision in Trump v. Hawaii, holding that the president had lawfully exercised his authority under section 212(f) of the Immigration and Nationality Act (INA) in PP 9645 to suspend the entry of aliens into the United States.

The House hearing where I testified revealed a significant lack of understanding about not only PP 9645, but also about world affairs. Take for example, the statements of Rep. Tom Malinowski (D-N.J.), which begin at about the 2:15 mark:

I think it bears repeating there has not been a single terrorist attack committed on U.S. soil by any national of any of the Muslim ban countries. Um, what we have had are attacks by Saudis, by Pakistanis, by Lebanese, every single case my colleagues have mentioned from a country that is not on the list. So the notion that we can trust these other governments to work with us to vet people coming to the United States is obviously preposterous.

He also asserted that Iraq is not on the list because of intercession by "influential Iraqis" and the Pentagon, and that Iran had nothing to do with 9/11 and that they are a sworn enemy of ISIS. So much to unpack here.

The purpose of PP 9645 is to improve the screening of nationals of all countries of the world, with a focus on countries in which terrorist organizations operate, and/or that have proven a threat to the United States in the past.

Consider Libya. On September 11, 2012, the U.S. Mission in Benghazi was attacked and burned in what was later determined to be a terrorist attack. U.S. Ambassador Christopher Stevens and three other U.S. nationals were killed. Logically, Rep. Malinowski would be aware of that event, because the attack led to a major congressional investigation, led by the House Select Committee on Benghazi.

In its final report on that attack, the committee found that "the attackers were a mix of local extremist groups." Included among those groups were the Benghazi-based affiliate of Ansar al-Sharia (there was a separate affiliate in Darnah "led by former Guantanamo detainee Abu Sufyian bin Qumo"), "al-Qaida in the Lands of the Islamic Maghreb, and the Muhammad Jamal Network out of Egypt." The committee noted: "Members of al-Qaida in the Arabian Peninsula, al-Qaida in Iraq and Abu Ubaydah Ibn Jarah Battalion also participated."

Not the kind of people you want visiting the Seventh Congressional District of New Jersey, for example.

The latest DOS "Country Reports on Terrorism" (for 2017, issued in September 2018) for Libya states:

ISIS-Libya and al-Qa'ida-aligned terrorists carried out dozens of attacks throughout 2017. Methods included suicide bombers, vehicle-borne improvised explosive devices (VBIED), ambushes, kidnappings, and targeted assassinations.

Or take Somalia. Many if not most of the documents issued by the country are of questionable veracity following almost two decades of turmoil and civil war there, during which there was little or no central government authority. There is also the fact that it is the headquarters of al-Qaida affiliate al-Shabaab. The Council on Foreign Affairs states the group has 7,000 to 9,000 fighters, and notes that the group has not only carried out attacks in that country, but also more than 150 attacks in neighboring Kenya:

The most brutal were a January 2016 attack on a Kenyan army camp in El Adde killing 200 soldiers, an April 2015 attack on a Kenyan college campus that killed 148 people, and a September 2013 attack on a mall in Nairobi that killed at least 67.

On October 1, 2019, the group carried out an attack at a U.S. military airfield in Somalia in which a U.S. service member was injured. BBC reported:

Al-Shabab said in a statement it had launched the raid, adding: "After breaching the perimeters of the heavily fortified base, the mujahideen [holy warriors] stormed the military complex, engaging the crusaders in an intense firefight."

They also attacked the mayor of Mogidishu, Abdirahman Omar Osman, "a naturalised Briton who returned to Somalia to help rebuild the war-torn country," in his office in July 2019. He died shortly thereafter.

The DOS Country Report on Terrorism states that there was also an ISIS-linked group in Puntland.

Al-Shabaab and ISIS? Again, likely not a group of individuals you would want sightseeing in New York City. Significant civil disorder also makes the vetting process a challenge for DOS officials. On the bright side, the U.S. government reopened its embassy in Mogidishu last week, after it had been closed for 28 years.

Yemen is in the midst of a civil war itself. It has been the site of ongoing fighting between the government and Houthi rebels since 2014 that has, for all intents and purposes, destabilized that government. A terrorist attack on a security center in Aden (for which ISIS has taken responsibility) on August 1, 2019, killed 13. That same day, a missile strike (for which Houthi rebels claimed responsibility) "hit a military parade in the al-Jala camp near the Buraiqa district in Aden, claiming the lives of at least 30 Security Belt personnel and also killing Abu al-Yamama, the leading Yemeni counterterrorism commander of those forces." The Security Belt Forces are a UAE-backed paramilitary group "connected to the Southern Transitional Council, a secessionist political organization calling for southern Yemen's independence."

The next day, militants from al-Qaida in the Arabian Peninsula militants "stormed al-Mahfad military camp in the governorate of Abyan." At least 19 Security Belt Forces were killed in an attempt to take back the camp.

Although Rep. Malinowski did not mention it, the U.S. Embassy in Sana'a was also the site of a terrorist attack on September 17, 2008. The New York Times reported:

Militants disguised as soldiers detonated two car bombs outside the United States Embassy compound in Sana, Yemen ... killing 16 people, including 6 of the attackers, Yemeni officials said. No American officials or embassy employees were killed or wounded, embassy officials said. Six of the dead were Yemeni guards at the compound entrance, and the other four killed were civilians waiting to be allowed in.

Among the dead was Susan Elbaneh, an 18-year-old U.S. citizen. The Yemeni branch of al-Qaida took credit for that attack. At that point, it was the fourth attack on the embassy since 2003.

Four years later, four protestors were killed and 11 injured in clashes in which 24 security guards were also alleged to have been hurt outside that embassy on September 13, 2012. The U.S. Embassy in Sana'a has been closed since February 2015.

To put a pin in it, as the DOS Country Report on Terrorism states:

Throughout 2017, al-Qa'ida in the Arabian Peninsula (AQAP) and ISIS-Yemen have continued to exploit the political and security vacuum created by the ongoing conflict between the Yemeni government under President Abd Rabu Mansour Hadi and Houthi forces.

ISIS, al-Qaida, home-grown rebels, and no embassy presence after five attacks. Perhaps these are facts that Rep. Malinowski should have considered in his assessment of the wisdom of issuing visas to Yemeni nationals.

I seriously doubt that I need to discuss Syria, but here it goes, from the State Department's "Country Reports on Terrorism":

Designated in 1979 as a State Sponsor of Terrorism, Syria continued its political and military support to a variety of terrorist groups. The regime continued to provide weapons and political support to Lebanese Hizballah (LH) and continued to allow Iran to rearm the terrorist organization. The Assad regime's relationship with LH and Iran grew stronger in 2017 as the regime became more reliant on external actors to fight regime opponents. ... Syrian government speeches and press releases often included statements supporting terrorist groups, particularly LH. Over the past decade, the Assad regime's permissive attitude towards al-Qa'ida and other terrorist groups' foreign terrorist fighter facilitation efforts during the Iraq conflict in turn fed the growth of al-Qa'ida, ISIS, and affiliated terrorist networks inside Syria. The Syrian government's awareness and encouragement for many years of terrorists' transit through Syria to enter Iraq for the purpose of fighting Coalition Forces is well documented. Those very networks were among the terrorist elements that brutalized the Syrian and Iraqi populations in 2017. Additionally, Shia militia groups, some of which are U.S.-designated Foreign Terrorist Organizations aligned with Iran, continued to travel to Syria to fight on behalf of the Assad regime. ... From Syria, ISIS plotted or inspired external terrorist operations. Additionally, the Syrian regime has purchased oil from ISIS through various intermediaries, adding to the terrorist group's revenue.

Plainly a problem for Syria, but how about the rest of the world? The report continues:

In October 2017, the Government of Bulgaria apprehended a dual Bulgarian-Syrian national and three accomplices for suspected ties to ISIS and for taking part in terrorist and terrorism-related activities. ... On October 3, [2017, German] Federal Police arrested a 19-year-old Syrian refugee in Schwerin (in the state of Mecklenburg-Vorpommern) on suspicion of planning an attack using bomb-making components purchased online. ... On November 21, [2017], six Syrian refugees were arrested [in Germany] in a series of coordinated raids in four states on suspicion of plotting a terrorist attack. German law significantly limits pre-trial and/or preventative detention, and the six were released two days later. ... On August 19, [2017] the [Italian] Ministry of Interior deported one Syrian/Tunisian and two Moroccan nationals, citing national security concerns. ... On October 7, at the request of French authorities, Italian police in Ferrara arrested Anis Hanachi, a 25 year-old Tunisian who is the brother of Ahmed Hanachi, the attacker who stabbed two women in Marseille on October 1. Investigators believe that Anis, who was a foreign terrorist fighter in Syria and Iraq between 2014 and 2016, indoctrinated his brother and instigated him to commit the attack. ... On September 13, [2017], the [Dutch] Minister of Justice and Security announced the revocation in absentia of Dutch citizenship for four foreign terrorist fighters. This marked the first time the government used the new legislation that entered into law March 1. All four individuals were presumed to be in Syria. On June 3, [2017], Rehab Dughmosh, a Toronto-area Syrian-born Canadian woman, allegedly attacked several people with a golf club at a Canadian Tire store in Scarborough, Ontario and brandished a large knife from her clothes. Police laid terrorist-related charges against Dughmosh (32) in July, including attempted murder for the benefit of or in association with a terrorist group.

Then there is Iran. My testimony included the following statement by Nathan A. Sales, the acting undersecretary of State for civilian security, democracy, and human rights, on November 13, 2018:

Iran is the world's leading state sponsor of terrorism. Period. It has held that dubious distinction for many years now and shows no sign of relinquishing the title. To the contrary, the regime in Tehran continues to provide hundreds of millions of dollars every year to terrorists across the world. It does this, despite ongoing economic turmoil that's impoverishing many of its people. The beneficiaries of this misbegotten largesse range from Hizballah in Lebanon, to Hamas in Gaza, to violent rejectionist groups in the West Bank, to the Houthis in Yemen, to hostile militias in Iraq and Syria. Let me give you some numbers. This may sound hard to believe, but Iran provides Hizballah alone some $700 million a year. It gives another $100 million to various Palestinian terrorist groups. When you throw in the money provided to other terrorists, the total comes close to one billion dollars.

Rep. Malinowski asserted that Iran "had nothing to do with 9/11" and is a "sworn enemy of ISIS". He complained that nonetheless, "Iranians have one of the lowest rates of approval in the waiver process even when consular officers say they should be allowed in."

He should read the "Country Reports on Terrorism". Here's what it has to say:

Designated as a State Sponsor of Terrorism in 1984, Iran continued its terrorist-related activity in 2017, including support for Lebanese Hizballah (LH), Palestinian terrorist groups in Gaza, and various groups in Syria, Iraq, and throughout the Middle East. ... Iran uses regional proxy forces to provide sufficient deniability to shield it from the consequences of its aggressive policies. ... Since the end of the 2006 Israeli-Lebanese Hizballah conflict, Iran has supplied LH with thousands of rockets, missiles, and small arms, in direct violation of UNSCR 1701. ... In Bahrain, Iran has continued to provide weapons, support, and training to local Shia militant groups. In March 2017, the Department of State designated two individuals affiliated with the Bahrain-based al-Ashtar Brigades (AAB), which receives funding and support from the Government of Iran, as Specially Designated Global Terrorists under Executive Order 13224. Iran continued to provide weapons, training, and funding to Hamas and other Palestinian terrorist groups, including Palestine Islamic Jihad and the Popular Front for the Liberation of Palestine-General Command. These Palestinian terrorist groups have been behind a number of deadly attacks originating in Gaza and the West Bank, including attacks against Israeli civilians and Egyptian security forces in the Sinai Peninsula. The Iranian government maintains a robust offensive cyber program and has sponsored cyberattacks against foreign government and private sector entities. Iran remained unwilling to bring to justice senior al-Qa'ida (AQ) members residing in Iran and has refused to publicly identify the members in its custody. Iran has allowed AQ facilitators to operate a core facilitation pipeline through Iran since at least 2009, enabling AQ to move funds and fighters to South Asia and Syria.

In the interests of brevity, I left out plenty more.

The Daily Beast reported in April 2017 that two individuals who had defected from Iran's intelligence service "testified that Iranian officials knew the September 11 attacks were being planned, according to a New York City court filing. One of the defectors claims that Iran was involved in planning the attacks." The "9/11 Commission Report" states, however: "We have found no evidence that Iran or Hezbollah was aware of the planning for what later became the 9/11 attack. At the time of their travel through Iran, the al Qaeda operatives themselves were probably not aware of the specific details of their future operation." That does not mean, however, that there is no evidence suggesting that Iran did not want to help the group.

Again, the "Country Reports on Terrorism" notes that Iran is sheltering al-Qaida members and has enabled the group to move fighters and funds through its territory. And, the "9/11 Commission Report" states:

Intelligence indicates the persistence of contacts between Iranian security officials and senior al Qaeda figures after Bin Ladin's return to Afghanistan. [Yemeni national Tawfiq bin Attash, aka:] Khallad has said that Iran made a concerted effort to strengthen relations with al Qaeda after the October 2000 attack on the USS Cole, but was rebuffed because Bin Ladin did not want to alienate his supporters in Saudi Arabia. Khallad and other detainees have described the willingness of Iranian officials to facilitate the travel of al Qaeda members through Iran, on their way to and from Afghanistan. For example, Iranian border inspectors would be told not to place telltale stamps in the passports of these travelers. Such arrangements were particularly beneficial to Saudi members of al Qaeda.

Nor is ISIS the only terrorist organization that is targeting United States' interests. An October 2016 article from the Brookings Institution notes that "Hezbollah had killed more Americans than any other terrorist group before 9/11. Even today, it is still far ahead of the Islamic State on this score." And, as stated above, "Iran is the world's leading state sponsor of terrorism," adding to the problems in Syria and Yemen, at a minimum. The idea that restrictions should not be placed on the country because it did not participate in September 11, or is opposed to ISIS, ignores the realities of Iran's other activities. Notably, the words "offensive cyber program" and "cyberattacks" should be chilling to any citizen of New Jersey who gets a HTTP 404 error.

As for the "influential Iraqis" to whom Rep. Malinowski was referring who kept Iraq off of the list of restricted countries, none come to mind, and I have been fairly aware of activities in that country since well before the 2003 invasion of that country by U.S. and allied forces. That said, if he believes that Iraq or any other country should be added to the list of countries whose nationals are restricted under PP 9645, he should tell the president.

Rep. Jerry Nadler (D-N.Y.), chairman of the full Judiciary Committee, questioned the veracity of visa information received from Russia and the People's Republic of China as well. Interestingly, he noted the fact that neither is a "predominantly Muslim country", but ignored the large populations of Muslims in each. The CIA World Factbook reports that 1.8 percent of the Chinese population is Muslim, which may seem like a small number, but equals out to almost 25 million people. The CIA reports that 10 to 15 percent of the people in Russia are Muslim, somewhere between 14 million and more than 21 million individuals. While the addition of those countries to PP 9645 may cause some diplomatic repercussions, if the chairman feels strongly enough about it, he may want to raise it with the administration.

Complaints about the exclusion of Iraq, China, or Russia from the list of countries facing restrictions under PP 9645 (at a hearing captioned "Oversight of the Trump Administration's Muslim Ban," no less) should indicate to any fair observer that the proclamation in question is not, in fact, a "Muslim ban."

But if you are looking for logic and fairness, Washington may not be the place to start. source