Amendments to the Terrorism Bar–or–How Fox News Enables the Holocaust

by Jason Dzubow on February 27, 2014

in Asylum, Asylum Seekers, Human Rights

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I’ve created a new invention. It’s called the “No-Hypocrisy Time Machine.” It enables us to travel back into the past to apply today’s laws and policies to historical events so we can see what impact they would have. In the process, we might just uncover some inconsistent or–dare I say it–hypocritical thinking. 

Before we begin our journey, let’s look at the laws and policies that we will be sending back in time. 

Barred from asylum: A Jewish boy provides "material support" to the Nazis.

Barred from asylum: A Jewish boy provides “material support” to the Nazis.

After the 9-11 attack, Congress passed the USA PATRIOT Act (2001) and the REAL ID Act (2005). Both laws strengthened and expanded terrorism bars contained in the Immigration and Nationality Act. The “terrorism bars” were designed to prevent terrorists and their supporters from obtaining immigration benefits in the United States. The problem was that these laws were over-broad. So even a person who was coerced into providing minimal support to a terrorist–for example, giving a glass of water to a guerrilla fighter on pain of death–might be barred from receiving asylum in the U.S.

Indeed, even the Bush Administration recognized that the terrorism bars were over-broad, and in 2007, DHS established some exceptions for coercion.

Fast forward to February 2014. The Obama Administration issued regulations exempting an alien from the terrorism bar where the alien provided limited material support–such as engaging in a commercial transaction,providing humanitarian assistance or acting under duress–to a terrorist organization. Importantly, the exception to the terrorism bar does not apply unless the alien has (1) passed all security background checks; (2) explained the circumstances that led to the provision of material support; (3) “has not provided the material support with any intent or desire to assist any terrorist organization or terrorist activity;” (4) has not provided support that the alien knew or reasonably should have known could be used to engage in terrorist or violent activity, or to target non-combatants; (5) poses no danger to the United States; and (6) warrants an exemption under the totality of the circumstances. One DHS official offered some examples of how the change might help otherwise innocent refugees: a restaurant owner who served food to an opposition group; a farmer who paid a toll to such a group in order to cross a bridge or sell his food; or a Syrian refugee who paid an opposition group to get out of the country.

Conservative commentators have characterized the exemptions differently. One wrote: “If you’re only sort of a terrorist, you can come to the US.” Fox News opined that the “Obama administration has unilaterally eased restrictions on asylum seekers with loose or incidental ties to terror and insurgent groups.” I suppose this isn’t much of a surprise since it is the business of Fox News and similar outlets to take the most mundane events, extrapolate them to the Nth degree, and then work themselves (and their viewers) into an outraged fury.

But how does Fox News’s position play out when we place it into our No-Hypocrisy Time Machine? Let’s travel back in time to World War II and the Holocaust to see what happens when today’s laws are applied to those dark times. Without the rule change, who might be barred from asylum in the United States–and thus deported into the hands of the Nazis?

The Schindler’s List Jews – These Jews–men, women, and children–would be barred from asylum for working in Oskar Schindler’s factory, which made cookware for the German Army. Deport them all. And by the way, that goes double for Mr. Schindler himself, who owned the factory and thus directly support the Wehrmacht.

Eli Wiesel – The Nobel Peace Prize winner worked for the Nazis in a slave labor camp. His labor would certainly constitute “material support.” His request for asylum is denied.

Tom Lantos – The California Congressman and human rights advocate spent time in a Nazi labor camp. Barred.

Simon Wiesenthal – The famed Nazi hunter was in Poland during the German invasion. He bribed an official to avoid deportation, registered to do forced labor, and later worked repairing railways. Barred, barred, and barred.

In fact, I’d guess that many–if not most–Jews (and others) who survived the Holocaust had to pay bribes, engage in forced labor or give other “material support” to the Nazis. So why does Fox News support policies that would bar these people from safety in the United States?

Obviously Fox News does not hate Holocaust survivors or Jews. But they do seem to hate the President, and to oppose anything his Administration does, even when his policies make perfect sense. Just as it would have been wrong to deny asylum to Eli Wiesel, Tom Lantos, and the others, it is wrong to deny asylum to innocent people who “supported” terrorist because they were coerced, they were unknowing or they had no choice. Modifying the rules related to the terrorism bar was the right thing to do. The claims to the contrary are–at best–inconsistent with universally-held values like protecting victims of fascism and terrorism. At worst, those claims are hypocrisy, pure and simple.

{ 7 comments… read them below or add one }

Rolando Rodriguez May 12, 2014 at 4:22 pm

Jason;
Great post! I always enjoy reading your commentaries. I myself represented a family of Syrians that had to pay bribes to 1) “exempt” the oldest child from conscription into a liberation group and, 2) obtain safe passage out of their village. Thus far I was fortunate to have an adjudicator with common sense that approved the asylum petition.

Reply

Jason Dzubow May 13, 2014 at 5:43 am

Thank you and Congrats on the victory. Payments like that can be a problem (and can cause delays in adjudication because the case can be sent to HQ), so it sounds like you did a great job avoiding those issues.

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Patti Lyman March 6, 2014 at 4:11 pm

Jason, I too have had clients held up in the system for years for giving money to bad guys literally at the point of a gun, and yes even the IJ thought it was wrong for DHS to want to bar the applicant – IJ even cited absurdity of applying the standard to Jews in concentration camps forced to work for the Nazis. We are still hoping for a good result. Having said that, it is entirely possible that bad actors WILL abuse this new, more lax application of the statutes and that security problems COULD ensue, though surely that’s not the case for most. Also, Fox News has no monopoly on overly hyped propoganda…just turn on MSNBC any day of the week and any hour of the day. btw, good to see you today, even if just for a quick moment….

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Jason Dzubow March 6, 2014 at 4:55 pm

Hi Patti – Nice to see you too. It seems to me that this exception does not make us any more vulnerable to terrorism. Anyone who knowingly supported a terrorist is still excluded. Also, I agree with you that Fox News is not the only outlet to distort the truth. However, in the case of the terrorism bar, they are guilty as charged.

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Todd Pilcher February 28, 2014 at 9:41 am

These Fox News detractors should also consider the US government’s covert operation to bring Nazi scientists to work in the US after WWII. Julie S. recently reminded us that her sister, Annie Jacobsen, is now promoting her new book Operation Paperclip, which provides a thorough account of this shameful policy and practice. Thanks for sharing, partner.

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bill holston February 27, 2014 at 5:04 pm

Absolutely brilliant. Think about medical workers working in a hospital in Syria, treating who ever might come in for instance.

I think often of analogizing to the SS St Louis and how we feel now about returning people to Germany, where some perished.
We do not learn from history sadly.

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Jason Dzubow February 27, 2014 at 5:14 pm

Thank you, Bill. By now, I’ve represented several Syrians (including at least one doctor) who provided humanitarian assistance. Each one is closely questioned at the asylum interview concerning who they assisted.

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