Last week, CNN reported that the Trump Administration, in the wake of the Ninth Circuit’s ruling on the administration’s immigration order, asked the Department of Homeland Security for assistance in justifying the travel ban before the courts on security grounds. More specifically, the White House asked the Department to draft an intelligence assessment that, as reported in the press, was supposed to unequivocally show that immigrants from the seven countries affected by the ban—Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen—posed a terrorism threat to the United States. Not surprisingly, the request immediately raised concerns over the politicization of intelligence by an administration that seems more focused on drafting an intelligence report to fit its preferred policies, rather than devising policies responsive to the intelligence of the day.
If you are finding Lawfare useful in these times, please consider making a contribution to support what we do.
However, when the Department produced its draft report, later leaked to the Associated Press, the White House wasn’t pleased with the results—and for good reason. The assessment does not support the administration’s position that individuals from the affected countries disproportionately threaten the United States. The Wall Street Journal quotes at least one White House official as expressing dissatisfaction: “The president asked for an intelligence assessment. This is not the intelligence assessment the president asked for.”
Relying on unclassified and publicly available information, the three-page assessment concluded that citizens of the seven affected countries are rarely implicated in U.S.-based terrorism plots. Indeed, the conclusions are similar to ones I drew earlier this month when I wrote about the conclusions we can draw from FBI international terrorism arrests. Like the DHS analysts, I also relied on the publically available Justice Department press releases, and this data only support one broad conclusion: foreign-born individuals from the affected countries are not a particular terrorism threat to the United States.
But in the next two pages, the DHS assessment takes the analysis several steps further than I went. First, the report found that country of citizenship, more generally, is not a reliable indicator of terrorist activity. By DHS’s count, foreign-born terrorism subjects in the United States originated from 26 different countries, and no country accounted for more than 13.5 percent of foreign-born suspects. In other words—and these are my words, not those of DHS—the travel ban will not be effective not, or not only, because Trump chose the wrong countries, but because trying to single out any country or countries for a travel ban is inherently a misfire. It is trying to fight terrorism by singling out a factor that doesn’t, in fact, offer a significant correlation with terrorist attacks—and that makes very little sense.
In addition, the assessment challenges the administration’s claim that the affected countries have a history of “exporting terrorism” to the United States. In fact, these countries aren’t actually exporting very many people at all. As CNN reported, the seven countries in question were originally removed from the visa waiver program under the Obama administration, making immigrating to the United States a less accessible option for their citizens. As the DHS assessment lays out, individuals from these countries don’t move to the United States in large numbers; each of the seven countries accounts for a small percentage of the US visas granted in their region (the Middle East, North Africa, or Sub-Saharan Africa). Each country accounts for less than three percent of its region’s total U.S. visas granted, with the exception of Iran, which clocks in at seven percent. Notably, the assessment reviewed only publically available data on how many U.S. visas were actually granted to residents of the affected countries prior to the ban, perhaps highlighting the need to actually utilize State Department databases before drafting the next Executive Order.
Finally, the assessment draws an important distinction between the countries on the list that face a significant terrorism threat that is reasonably contained within their borders and those who struggle with terrorist groups that also target the United States. Of those seven countries, the assessment indicates that most aren’t harboring terrorist groups actively targeting the United States. According to the 2016 Worldwide Threat Assessment of the U.S. Intelligence Community, and the Department of State Country Reports on Terrorism 2015, groups in Iran, Libya, Somalia, and Sudan are regionally focused; only organizations based in Iraq, Syria and Yemen currently pose a threat of attacks in the United States.
The report could actually have gone a step further and pointed out that, according to the Justice Department’s press releases, even groups that are targeting the United States, like ISIL, often use native-born American citizens, not immigrants or foreigners her on temporary visas, to carry out their attacks. They do this by calling for lone wolf-style efforts. These suspects would obviously remain completely unaffected by a travel ban.