Diary

Questions About that DOJ-DHS Terrorism Report

The Trump administration came out with a report on international terrorism-related offenses, and the summary page has the juicy bits:

Today, the Department of Justice (DOJ) and the Department of Homeland Security (DHS) released a report, revealing that three out of every four, or 402, individuals convicted of international terrorism-related charges in U.S. federal courts between September 11, 2001, and December 31, 2016 were foreign-born. Over the same period, U.S. Immigration and Customs Enforcement removed approximately 1,716 aliens with national security concerns. Further, in 2017 alone DHS had 2,554 encounters with individuals on the terrorist watch list (also known as the FBI’s Terrorist Screening Database) traveling to the United States.
[…]
The report reveals that at least 549 individuals were convicted of international terrorism-related charges in U.S. federal courts between September 11, 2001, and December 31, 2016. An analysis conducted by DHS determined that approximately 73 percent (402 of these 549 individuals) were foreign-born. Breaking down the 549 individuals by citizenship status at the time of their respective convictions reveals that:

  • 254 were not U.S. citizens;
  • 148 were foreign-born, naturalized and received U.S. citizenship; and,
  • 147 were U.S. citizens by birth.

But the report raises more questions than anything. The first is…

How did Sessions-Nielsen get to that 549 number?

The DOJ list that is referenced in the new report is well-known among national security journalists and researchers because it has been released periodically over the years. In March 2010, then-Attorney General Eric Holder presented it to Congress as part of testimony. The list then included 403 defendants. A second version, updated through December 31, 2014, had 580 defendants. A third list ending in 2015 included 627 international terrorism defendants.

Yet somehow a list of defendants ending December 31, 2016, cited in this new report, has just 549 defendants. The report does not provide the raw data or any further description of the data used; it does not explain how a list that contained 627 names in 2015 and 580 names in 2014 now includes far fewer, 549. Devin O’Malley, a Justice Department spokesperson assigned to answer questions about the report, declined to comment about the mysteriously shrinking defendant list.

If anything, the list should be 627 defendants and counting, so why the dramatically lower number?

The report is vague on the number of attacks that actually occurred in our fifty states

There is a clear intent to this DOJ-DHS report, specifically that foreigners and foreign-born Americans have been mostly responsible for militant Islamist attacks on our soil and that our immigration system is at fault. Jeff Sessions is quoted thus:

“This report reveals an indisputable sobering reality—our immigration system has undermined our national security and public safety.”

Yet an unknown number of those convictions involved militant Islamists transported from elsewhere for crimes committed elsewhere. From the Sessions-Nielsen report:

This information includes both individuals who committed offenses while located in the United States and those who committed offenses while located abroad, including defendants who were transported to the United States for prosecution.

Emphases mine. At Lawfare, three of its contributors went through the data and concluded this:

What’s more, the list included almost 100 foreign-born defendants who were extradited into the United States and therefore never would have been affected by U.S. immigration policy. That is, even excluding domestic terrorism cases, it was possible to support the president’s claim only if one counted as foreign-born terrorism suspects people the United States had actively imported in order to prosecute for terrorism or terrorism-related crimes.

There’s more vagueness

Per Buzzfeed:

And yet, the official declined to say how many of the 402 foreign-born people convicted of terror-related charges had actually entered the United States using the lottery program or via chain migration.

The report bypassed data for anecdotes

And because this is a political document, the anecdotes paint a certain narrative.

The examples picked to be showcased in the report are clearly intended to further the president’s particular policy agenda. All of the examples cited are Muslim, of course, but they do not seem to have been selected on the basis of the threat posed to people in the U.S., or even the severity of the conduct. Not one of the examples included was born an American. Instead, they tick other boxes. Five out of the eight came to the U.S. through relationships with family members, or as the administration likes to call it: “chain migration.” Over the same period, almost 11 million people migrated to the U.S. under this type of preference. One of the examples listed came to the U.S. through the diversity lottery and another was the child of someone who won the diversity lottery. That’s out of almost 750,000 people who came here through the program. They even found one refugee – literally one out of a million — who came to the U.S. between 2001 and 2016. The threat posed by these people is obviously insignificant. The intent to highlight examples that fit with the Trump administration’s immigration priorities is equally obvious.

The percentage of US-born terrorists is different–much lower–compared to other reports…and the use of convictions as a measure is a poor baseline

At the New America Foundation, co-founded by Walter Russell Mead, there is a helpful interactive report of 426 people “charged with jihadist terrorism or related crimes, or have died before being charged but were widely reported to have engaged in jihadist criminal activity”. This seems like a more accurate measure than convictions because, after all, Omar Mateen and the San Bernardino killers died while committing their terrorist acts and the DOJ doesn’t do post-mortem convictions. For the record, Mr. Mateen was US-born and half of the San Bernardino duo was US-born. The Fort Hood terrorist, Nidal Hasan, was yes, you guessed it, US-born. For another, New America shows a much higher percentage of US-born jihadists.

More from Ackerman:

Karen Greenberg directs the respected Center on National Security at Fordham University Law School, where she assiduously tracks terrorism cases in federal court. Greenberg told The Daily Beast that tracking the data back to September 2001 skews and obscures the more salient recent trend in terrorism cases: Islamic State-related convictions. Looking at those, Greenberg said, the proportions rise to roughly 50 percent Americans and 50 percent foreigners.

“The percentage of individuals born inside the U.S. indicted for terrorism is now 54 percent,” Greenberg said, far beyond the 27 percent conviction rate for U.S.-born international terrorism, those 147 cases, cited in the report. That report is “obscuring the fact that the number of U.S.-born international terrorism defendants have doubled.”

The University of Maryland’s START initiative keeps its own databases on terrorist attacks in the U.S., though along more restrictive criteria than what the Justice Department and Department of Homeland Security selected, as the latter includes terrorist plots disrupted in their planning stages. START executive director Braniff noted that only 11 percent of the attacks in the U.S. since 9/11—or, 31 attacks—were “classified as ‘religious-Islamic” in character.

“A vast majority of attacks—not plots—in the U.S. since 9/11 were motivated by an ideology that wasn’t considered by the DOJ report,” Braniff said. “This is not right or wrong—it is just a reflection that the way one frames a question dictates which data are considered for analysis.”

Without individual data from DOJ-DHS, the above information and data raise questions such as, with all the resources the US government has, why couldn’t they do an interactive website? Maybe because Sessions-Nielsen didn’t have the time after that debacle of a meeting last Thursday? Maybe the bigger problem in this War Against Militant Islamism–at least when it comes to preventing terrorist attacks on our soil–involves homegrown terrorists (the ones who get radicalized while living in the United States) and less about the imported kind.

The data does not show a real correlation

Using 2015 data, inconclusive.

Of the 580 defendants in the list, Sessions’s committee staff found the country of birth for 448 based on open-source research. Of those, U.S.-born American citizens represented the single largest group, with 73 defendants. The second largest group, consisting of 61 defendants, was from Pakistan, which is not affected by the travel ban.

The numbers fall precipitously from there. The third-largest group, consisting of 21 defendants, was from Somalia, which is included in the travel ban. The other countries included in Trump’s travel ban were Iran (four), Libya (two), Sudan (three), Syria (seven), and Yemen (20). Iraq, which was in the first version of the travel ban but not the second, had 19 terrorism defendants in Sessions’s data.

For comparison, 20 of the terrorism defendants in the Sessions data were born in Colombia, the same number of defendants who were born in Yemen. If the travel ban were indeed about restricting travel from terror-prone nations, as the Trump administration has claimed, the Sessions data would in theory provide a compelling case for adding Colombia, a Catholic-majority nation, to the ban list.

The Trump administration’s travel ban, which was established by executive order and affected seven Muslim-majority nations in its first iteration and six in its second, also temporarily blocks refugees from entering the country. Of the 448 defendants for whom Sessions’s committee staffers could find information, 24 entered the United States as refugees. According to the Sessions data, not a single refugee from Syria has been charged with terrorism-related offenses in the United States.

More here:

While true that hundreds of defendants arrested in the U.S. in international terrorism cases—a slight majority—were born overseas, the vast majority of foreign-born defendants came from countries that were not covered by the travel-ban executive orders. And of the relatively small number of individuals from covered countries—43 in total—the clear majority come from only two countries (Somalia and Yemen).

Given the lack of data, the lack of transparency, the lack of explanation, and the report’s general lack, tells me that what Sessions-Nielsen engineered wasn’t a national security PSA but a political document, intended to advance a political agenda. It was only released today, and I expect it’ll get shot down even more tomorrow.

P.S. The thing is, I don’t have a problem with reducing immigrants from Muslim-majority countries, but banning them violates the 1965 Immigration & Nationality Act. If Trump wants to ban immigration based on nationality, he needs Congress to change the law.

The report rightfully doesn’t cover domestic terrorism convictions and–assuming that pretty much all domestic terrorist attacks were perpetrated by US citizens–isn’t terribly relevant to this DOJ-DHS document, in my opinion.

Update: Lawfare has two more questions:

How did the foreign-born individuals enter the United States?

The report does not include information on any of the foreign-born defendants’ manner of entry into the U.S. In its press release, the White House highlighted that five of the eight “illustrative examples” in the report entered the U.S. on the basis of family ties and extended-family chain migration. Without that answer, we have no way of knowing if this data actually supports President Trump’s proposed immigration policies.

 Were they radicalized abroad or in the United States?

The report notes that DHS and DOJ lack unclassified data regarding the percentage of individuals who were radicalized to violence after their entry into the U.S. The eight “illustrative examples” were charged anywhere from four to 26 years after entry, with the average period being 13 years.

Without the underlying data the report relies on, answers—or actual analysis—is impossible. To get some clarity, we considered international terrorism convictions in 2017. Relying on  from the National Security Division (an imperfect source, to be sure), we calculated that only 30 percent of defendants were foreign-born. One of those defendants was captured overseas in Libya and brought to the United States to stand trial. The rest, with the exception of one, were from countries not on President Trump’s list. That leaves one—Abdirahman Sheik Mohamud, a naturalized U.S. citizen from Somalia—of 24 convicted terrorism defendants in 2017 who were foreign-born and entered the U.S. from a listed country. That’s a little more than 4 percent.