A Well-Founded Fear… of Muslim Asylum Seekers

For some time now, the threat of Islamic extremism has been an important factor in our country’s immigration and asylum policies. But two recent–and horrific–events overseas have reminded us about the gravity of that threat.

CharlieFirst is the case of Man Haron Monis, an Iranian national who received asylum in Australia. Last month, Mr. Monis took hostages in a café, forced them to display a Jihadi flag, and demanded to speak to the Australian Prime Minister. By the time the incident ended, two hostages were dead and several were injured. Mr. Monis also died in the confrontation. The incident was only the most recent in a long history of problems for Mr. Monis. Among other things, he had been charged as an accessory in the murder of his ex-wife, he was charged with several counts of sexual assault against various women, and he had notoriously sent hate letters to the families of Australian service members killed in Afghanistan, which also resulted in criminal charges.

The second incident is the massacre at Charlie Hebdo magazine in France. The suspects in that attack seem to have been French nationals of Algerian decent who saw the attack as revenge for the magazine’s cartoons disparaging the Prophet Mohamed. At least some of the suspects in that attack have had prior problems with the law, including terrorism-related arrests, and the men seem to have been connected with a Yemeni terrorist network.

So with two fresh examples of Islamic extremists attacks in the West, it seems to me a fair question to ask: Why do we risk allowing terrorists into our country through the asylum and refugee system? Why not simply limit asylum to people who hale from non-Muslim countries? Certainly there are plenty of non-Muslim refugees who need our help. And certainly, as well, there are people not too far on the fringe who–assuming they could not eliminate asylum altogether–would be very happy to limit humanitarian relief to non-Muslims.

There are several ways to address these questions. One way–which I won’t discuss in detail but I want to mention–is to talk about historic injustices in the relationship between the Muslim World and the West: Colonization, economic exploitation, repeated military interventions, humiliation. The West’s actions in the Middle East have contributed to the problem of Muslim extremism. But we have to live with the world that now exists, however imperfectly that world came to be, and I don’t think the West’s past failures justify putting our citizens at risk of attack by extremists. In other words, just because we helped create the problem of extremist terrorism does not mean that we shouldn’t do everything possible to prevent terrorists from coming to our countries, including–if appropriate–closing the door to asylum applicants from Muslim countries.

However, there are other reasons that I think justify allowing people from all countries to seek refuge here.

For one thing, allowing ourselves to be intimidated by terrorists into modifying our humanitarian values or cutting ourselves off from Muslim people would be a victory for the terrorists. It would mean that we gave in to our fears. Great nations are not bullied by ignorant thugs. We already have strong safeguards in place to identify potential terrorists and criminals, and prevent them from coming to our country. In a future post, I will make some suggestions for how we might further strengthen our defenses. 

Second, many of the Muslims that seek protection in the U.S. are people who worked with the United States military or government, or who worked for international NGOs and companies in concert with our efforts (however imperfect) at nation-building. Such people risked their lives and trusted us. To abandon them would be to send a message that America does not stand by its friends. This is a message that we cannot afford to send. If we are not trustworthy, people will not cooperate with us going forward.

Third, allowing terrorists to drive a wedge between our country and moderate Muslims would make the world more dangerous. There will be fewer bridges, not more. We need to keep strengthening ties between the West and the Muslim World. The terrorists want to cut those ties; we cannot let them.

Finally, on a more personal note, most of the asylum seekers I represent come from Muslim countries such as Afghanistan, Iraq, Syria, and Egypt. Almost all of them hold strong pro-Western views (i.e., they believe in the foundational values of our country). Many of them worked with the United States or with Western organizations. Others are political activists, women’s rights activists, and gay rights activists. One of them famously (or infamously in his country) made a trip to Israel in an effort to promote peace. Many of my clients have been threatened by the same types of people who committed the murders in Australia and France. Some of my clients have lost family members to Islamic extremist attacks. A good number of my clients continue their political activities after they are granted asylum, as they hope to help bring change to their countries. As a matter of principle, morality, and as a matter of our national interest, I feel we are well-served by offering protection to such people.

Although the news usually reports terrorist attacks, it rarely reports the opening of a new school for girls. It reports threat levels and terrorist “chatter,” but it often ignores peace-building efforts, reconciliation, and democratic activism. Many people in the Muslim World want change. We saw that in the Arab Spring. We need to align ourselves with such people and give them our support. We need to stay engaged with the world and not retreat. We need to remain hopeful and not surrender to fear.

American Lawyer Assists Australian Asylum Seekers

Michael “Dan” Mori is a former Marine Corp attorney who gained fame defending Guantanamo Bay detainee David Hicks, an Australian national captured by the Americans in Afghanistan.  With Mr. Mori’s help, Mr. Hicks accepted a favorable Alfred plea (basically meaning that he did not admit guilt, but agreed that there was enough evidence to convict him). He was sentenced to seven years in prison for supporting terrorists, a charge that he denies. All but nine months of the sentence were suspended. Mr. Hicks served most of his nine months in Australia and was released. The plea came after five years at Gitmo, under less than pleasant circumstances. The case gained quite a bit of attention, as it was the first conviction by a U.S. war crimes tribunal since World War II.

After the Hick’s case, Mr. Mori’s career in the Marines apparently stalled. He alleged (in a lawsuit) that the military retaliated against him for his work on Mr. Hick’s case. He eventually was promoted, but retired soon thereafter and moved to Australia. There, he started work at the plaintiff law firm Shine as a Social Justice Consultant.

It seems that Mr. Mori’s latest project is to help asylum seekers detained by the Australian government on the island of Nauru.

Come on, Mori, admit it - You took the Nauru gig for the beaches!
Come on, Mori, admit it – You took the Nauru gig for the beaches!

Nauru is a small island republic in a remote part of the Pacific Ocean. The country became wealthy in the 1960s and 70s by exploiting mineral resources, but when those ran out, the economy went bust. In 2001, Nauru entered into an agreement with Australia to house refugees seeking admission to Australia. In exchange, Australia provides Nauru with financial assistance and technical aid.

The refugee detention center on Nauru has been controversial, and it has closed and re-opened several times. The latest incarnation of the detention center  opened last year in August and holds about 400 men. After a visit to Nauru, Amnesty International described the camp as “a human rights catastrophe … a toxic mix of uncertainty, unlawful detention and inhumane conditions.”  

In September 2012, there was an alleged riot at the camp and property was destroyed. The government charged 10 detainees with rioting and destruction of property. The case of the “Nauru 10” is currently pending, and this is where Mr. Mori comes into the picture.

Mr. Mori and other defense lawyers filed a habeas corpus petition in Nauru, claiming that the detainees are being unlawfully held. The defense team convinced a Nauru court to adjourn the criminal charges until the habeas issue is resolved, and that issue remains pending.

“Whether or not you agree with the process… you have to agree that people being detained should have access to legal help,” said Mr. Mori, who compared the situation in Nauru with Guantanamo Bay. “You have to push the politics aside and remember, if someone’s detained they need access to the law.”

There is a lot at stake for Nauru, which has become dependent on the Australian aid, and for the asylum seekers, whose fate rests in the hands of the Nauru court system. I hope that Mr. Mori and the other lawyers can bring a measure of justice to this obscure corner of the globe.

Should the U.S. Send Asylum Seekers to Mexico?

The government of Australia recently entered into an agreement with Malaysia whereby the next 800 asylum seekers who arrive illegally by boat in Australia will be sent to Malaysia where their asylum cases will be processed.  The deal still needs to have some kinks ironed out, but it seems that if an asylum case is approved, the asylee would join the (long) queue of registered refugees waiting for resettlement to Australia or elsewhere.  While the asylum seekers’ cases are pending, they will have permission to work or study in Malaysia, and they will have access to healthcare (at least theoretically: the Malaysian government does not have a great reputation for its treatment of refugees).  In exchange for taking the asylum seekers, Australia will accept 4,000 refugees–i.e., people who have already been determined to qualify for refugee status–from Malaysia, and Australia will pay for the plan.  The hope is that by sending asylum seekers to Malaysia and putting them at the back of the resettlement line, the new plan will eliminate the incentive for people to come illegally to Australia.

Malaysian Tourism Minister laments the new plan: "Not even refugees want to come here!"

The United Nations Commissioner for Human Rights has questioned the legality of this arrangement.  But Australia is pressing ahead with the plan, and has already identified the first boatload of asylum seekers who will be sent to Malaysia.  The Australian Prime Minister sees this plan as a way to reduce the lucrative alien smuggling business and protect refugees:

“I made it very clear that what I wanted to do was to break the back of the people smuggling model, to take away from them the very product that they sell, to stop people risking their lives at sea and to stop people profiting from human misery,” Australian Prime Minister Julia Gillard said at a news conference. “I wanted to see us do something to end the profitability of people smuggling.”

My question is, could the U.S. adopt such a model to discourage asylum seekers who enter the U.S. at our Southern border?  Such people often make a long and dangerous journey from their country to ours.  They pass through many countries before entering the United States illegally and applying for asylum.  Thus, it seems these asylum seekers are subject to a “push” (a reason to leave their home countries) and a “pull” (a reason to come to the U.S. rather than another country).  What if we eliminated the “pull” by sending such people to a third country to process their cases?  Some thoughts:

For a start, we would need a country willing to accept our asylum seekers.  The most obvious choice is Mexico.  Mexico is trying to comply with international refugee law, and most asylum seekers entering the U.S. illegally have to pass through Mexico to get here.  The asylum seekers from China and Africa who pay thousands of dollars to smugglers, are paying to come to the U.S., not to Mexico.  And–no offense to Mexico–I don’t think asylum seekers would pay these exorbitant sums if their journeys ended in Mexico.  So if we sent our asylum seekers to Mexico, it would reduce the “pull” factor and might discourage large numbers of people from trying to come here illegally (and risking their lives in the process).

On the other hand, there are good reasons why we should not adopt Australia’s model.  A letter from Human Rights Watch to the Prime Minister of Australia makes some convincing arguments against “outsourcing” asylum seekers.  First, there are real questions about whether the receiving country will treat asylum seekers in accordance with Australia’s (or our) human rights obligations.  Second, forcibly transferring asylum seekers may violate treaty commitments.  The HRW letter continues:

We are also concerned that this deal is premised on the dangerous notion that obligations of states party to the Refugee Convention can be transferred to states with no such convention obligations.  Finally, we also fear that this deal tries to subvert the principles underlying refugee resettlement by transforming resettlement from a tool of international protection into a mechanism of migration-control.

To these reasons, I would add that transferring asylum seekers sets a bad precedent for how other countries will treat asylum seekers.  The United States sets the standard for many areas of international law and policy.  If we shirk our commitment to asylum seekers, other countries will follow suit.  Finally, we often forget how much asylum seekers contribute to our country.  Check out this list of famous refugees for some well-known examples of refugees who have contributed greatly to their host countries.

We will see how the Australian experiment proceeds.  It will be relatively easy to determine whether the plan reduces the number of illegal migrants, but it will be difficult to measure how the plan impacts human rights.  We need to look at both sides of the equation before we consider such an approach for our country.