Lessons from Post-9/11 Immigration-Related Security Measures

CMS Back Pages | Lessons from Post-9/11 Immigration-Related Security Measures

CMS Back Pages seeks to draw attention to past CMS publications and research that speak to pressing public policy concerns. This post addresses the US debate on national security and refugee protection.

The recent terrorist attacks in Paris and San Bernardino, California have re-ignited debate over immigration policy and national security, leading to passage of legislation to tighten the US Visa Waiver Program and to proposals to suspend admission of Syrian refugees and immigration by Muslims into the United States. These proposals come at a time when, according to the United Nations High Commissioner for Refugees, forced displacement has reached “unprecedented levels,” with 59.5 million displaced internationally due to “persecution, conflict, generalized violence, or human rights violations,” including 38.2 million internally displaced persons, 19.5 million refugees, and 1.8 million asylum seekers. Syria’s civil war alone has uprooted 12 million persons. In 2015, 5,230 migrants have perished in transit, including 3,760 in the Mediterranean Sea. Moreover, the diverse crises and conditions driving migration show scant signs of abating. This post will draw on past CMS publications on immigration-related security measures that affect refugees, asylum-seekers and others in need of protection.

In a 2002 piece for CMS’s occasional papers series titled “Migrants, Borders and National Security: US Immigration Policy Since September 11, 2001,” Donald Kerwin examines the impact of the 9/11 attacks on US immigration policy. He argues:

Attempts to equate immigrants with terrorists since September 11th have been widely discredited. Yet, immigration policy developments since September 11th have been uniformly rooted in security concerns. Policies that aim to catch a relatively small number of terrorists have infringed on the rights of thousands of immigrants and even U.S. citizens (Kerwin 2002, 37).

While this paper supports several of the post-9/11 information sharing, identity assurance, and immigration-related security initiatives, it also highlights the detrimental impact of practices like the moratorium on refugee admissions, the uptick in US funded migrant interception programs, pre-textual detention, the increased use of expedited removal, and the militarization of US borders. It recognizes the immense counterterror challenges facing the United States, but argues for a critical assessment of security-related policy changes. It recalls the fundamental rights that undergird the national experiment:

Commentators have strongly supported, in light of the terrorist threat, recalibrating or shifting the balance between individual rights and national security. In the US tradition, however, respect for core rights does not conflict with security, but undergirds it. “They that can give up essential liberty to obtain a little temporary safety,” wrote Benjamin Franklin, “deserve neither liberty nor safety.” In his First Inaugural Address, Thomas Jefferson said: “Freedom of religion; freedom of the press; and freedom of person under the protection of habeas corpus, and trial by juries impartially selected…They should be the creed of our political faith, the text of civil instruction, the touchstone by which we try the services of those we trust; and should we wander from them in moments of error or alarm, let us hasten to retrace our steps and to regain the road which alone leads to peace, liberty and safety.” The United States identifies itself as a nation of immigrants, unified by these values (citations omitted) (Kerwin 2002, 7).

In a 2014 paper titled “An Overview of Pending Asylum and Refugee Legislation in the US Congress” published in CMS’s Journal on Migration and Human Security (JMHS), Melanie Nezer offers a superb summary of US legislative activity on refugee, asylum and temporary protection programs. She writes:

In 2001, Congress enacted the USA Patriot Act, which expanded the terrorism-related grounds of inadmissibility (“TRIG” bars to admission). The goal of the legislation was to prevent individuals who have engaged in acts of terrorism from being granted admission to the United States. However, due to the extremely broad definition of “terrorist activity” in the law and the expansive legal interpretations adopted by the Bush and Obama administrations, victims of oppression seeking refugee protection have been mislabeled as supporters of “terrorist organizations” or participants in “terrorist activity.” As a result, thousands of refugees who do not pose a threat to the US have had their requests for refugee or asylum protection or other status delayed or denied (citations omitted) (Nezer 132).

In the introductory paper to JMHS’s 2015 special edition on the US refugee protection system, titled “The US Refugee Protection System on the 35th Anniversary of the Refugee Act of 1980,” Mr. Kerwin writes that a large percentage of the record number of forcibly displaced persons do not meet the strict legal standards for refugee status, political asylum, or temporary protection.  However, the response of developed states has not been to expand the refugee definition, create new categories of protection or enter equitable burden-sharing arrangements. Rather, states have resorted to strategies – finely honed since the late 1970s – to contain, interdict, repatriate, arrest, detain, and otherwise prevent and deter migrants from seeking protection. These tactics have been alternately justified on migrant protection, national security, criminal control, anti-trafficking, economic and social cohesion grounds, creating a substantial empirical and political challenge to a more expansive and robust refugee protection system. This paper underscores a strong theme of the CMS special collection, the denial of access to protection by otherwise legitimate security measures:  

The US response to large-scale refugee movements, whether of Central American children or desperate Haitian migrants, has become formulaic. The political branches of the US government brand the “waves,” “flow,” or “surge” a national crisis (rather than a human crisis), agree in principle on the need to address “root causes,” and resort to default strategies like containment, interception, repatriation, border enforcement, and detention-to-deter. Since 9/11, these tactics have increasingly been justified on national security grounds (citations omitted) (Kerwin 2015, 2010).

In a 2015 article in JMHS titled “The Syrian Refugee Crisis: A Comparison of Responses by Germany, Sweden, the United Kingdom, and the United States,” Nicole Ostrand argues that security responses to terrorist attacks have shaped refugee protection schemes worldwide. She outlines the urgent need for greater burden sharing by developed nations to address the Syrian refugee crisis. According to UNHCR, by the end of 2014 more than 4.3 million registered Syrian refugees were residing in five countries neighboring Syria: Turkey, Lebanon, Jordan, Iraq and Egypt. Ms. Ostrand examines the disproportionate burdens borne by these countries. She also compares the refuge assistance and asylum caseloads of four Western nations, Germany, Sweden, the United Kingdom and the United States. 

As refugee-producing conditions persist and terrorist attacks remain an omnipresent threat in many nations, the issues discussed in this series will remain of central concern in public discourse, as well as a topic of migration scholarship and research.