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to examine this information.61 This law thus offers an alternative to the ATRC by not requiring an application process or a summary of the classified information, and not permitting interlocutory appeals.

Because these procedures afford Justice easier, more efficient processing of aliens involved in terrorist activities, as well as full protection of the intelligence supporting the allegations of terrorist activity, Justice takes full advantage of them, with the direct result that cases considered for the ATRC are being redirected into conventional deportation hearings.62 In the past year, the INS has instituted about 20 removal proceedings where classified evidence was presented in camera and ex parte to oppose discretionary relief.

Moreover, Justice has reason to be cautious in bringing a case before the ATRC. Assuming that the first application accepted by the ATRC will have to withstand constitutional challenge to the ATRC itself at the Supreme Court,63 Justice wants to make sure that the first case before the ATRC will not be easily challenged on constitutional grounds. As Justice sees it, the wrong case could mean the constitutional nullification of the ATRC.

In part to maximize the survivability of the ATRC and to inject efficiency and common sense into the process of deciding what cases to bring before the ATRC, in July 1996, Justice set out interim procedures for the implementation of ATRC actions against alien terrorists. A Task Force on ATRC actions chaired by the Terrorism and Violent Crime Section and overseen by the Deputy Attorney General, is comprised of representatives of the Terrorism and Violent Crime Section, Criminal Division; Office of Immigration Litigation, Civil Division; FBI; INS; 64 and the Office of Intelligence Policy Review. Case recommendations may come from the INS, the Civil Division, other agencies, and U.S. Attorneys' Offices. These cases are initially evaluated by FBI field agents in conjunction with FBI headquarters' agents and the General Counsel's office. They are then forwarded to Justice's Violent Crime and Terrorism Section for discussion and evaluation.

In essence, the Task Force will not consider a case for the ATRC if an alleged terrorist alien can be deported by charging him with a basic immigration or criminal violation; or if the classified information cannot be adequately summarized without compromising intelligence sources; or if the matter does not warrant ATRC referral. Under these standards, the most appropriate cases for the ATRC are those involving fundraising for terrorist organizations and instances where the alien was involved in a terrorist act overseas with no U.S. nexus.65 Since both the definition of terrorist activity and the recent Ninth Circuit decision in Arab-American weigh heavily against reaching fundraisers, the best first case thus looks like the admitted alien with strong links to terrorist acts abroad.

61 INA § 240(a)(4(B).

62 Other provision of the Antiterrorism Act also facilitate the ability of Justice to deport alien terrorists, most noticeably §s 413 and 421. §413 makes aliens who have engaged interrorist activities ineligible for various types of relief from forced removal. § 421 specifically makes an alien who is deportable on the basis of past terrorist activities ineligible for asylum unless the Attorney General, or her delegee, determines that there are no reasonable grounds for considering the alien a danger to national security. As amended by IIRIRA and made effective on April 1, aliens who have engaged in terrorist activities are disqualified from applying for asylum.

Note that in the case of Abu Mezer: although detained in January 1997, he did not actually file his asylum application until April 7, 1997. If Mezer were known to have engaged in terrorist activities, he would have been barred from filing the asylum application under Section 421 and been ineligible for various type of relief under Section 413.

63 The most likely constitutional challenge to the ATRC will be that the statute creating it is unconstitutional on its face for failing to protect guaranteed due process rights, especially as pertains to the classified information provisions. Although 1956 Supreme Court decision in Jay v. Boyd held that it is constitutionally permissible for the INS to use classified information against applications for relief in deportation cases, it remains unclear whether that holding will be extended to cases where the classified information is the basis for the underlying charge that the alien is a terrorist. A conviction on that charge carries a 10 year criminal "removal" penalty if that alien attempts to enter the United States subsequent to conviction.

64 The FBI and INS are concurrently reviewing these cases. One aspect of the FBI's review is to assess whether the ATRC candidate should not be brought before the ATRC because of that candidate's remaining intelligence value. The INS, on the other hand, is reviewing candidates for amenability for public proceedings other than the ATRC whereby deportation would take place on immigration or criminal violation grounds.

65 Section 702 of the Antiterrorism Act broadens the federal jurisdiction over crimes by international terrorist. Jurisdiction now exists over the crime if the offender uses or facilitates use of interstate commerce; the offense interferes with interstate commerce; if the victim is a U.S. citizen or employer; or the offense takes place within U.S. territorial jurisdiction and at least part of the conduct occurs outside the United States.

The first fifty cases presented to Justice by the FBI were not accepted for ATRC filings. Justice is now considering the second set of fifty, including active FISA 66 cases.67 So far, at least two cases initially considered for the ATRC have been redirected into traditional proceedings. In one case, the alien was charged criminally with possession of a firearm. In the second case, the alien was deported based on immigration violations.

Removals suspended: political intrusion into counterterrorism efforts.-An unfortunate example of how politics can frustrate counterterrorism efforts is the Attorney General's decision, at the request of the Secretary of State, to suspend or drop deportation proceedings against nine aliens associated with IRA terrorist activity. Six aliens had their cases suspended (five in conventional proceedings using prior criminal convictions as proof of terrorist activity, and one where classified information was to be used), while three aliens' cases were withheld from prosecution. The practical result of the Attorney General's action is that nine aliens associated with IRA activity, at least five of whom had served sentences abroad for bombings and murders, are now free to continue their activities here in the United States.68 As one Irish news release states: "The decision sends a message that America is not just for the free but a land where terrorists go free." 69

The decision was made after Secretary of State Albright wrote a letter to the Attorney General stating that "the suspension of United States efforts to deport a small number of individuals who have engaged in activity on behalf of the IRA but who are now here in the United States could contribute to the Northern Ireland peace process.” This letter was written after Sinn Fein leader Gerry Adams visited the U.S. on a fundraising tour in August. Of course, it was not explained how releasing these nine aliens would actually contribute to the peace process. In the end, valuable INS resources were wasted for a political gesture of questionable merit.

FINDINGS, CONCLUSIONS AND RECOMMENDATIONS

The INS has the primary responsibility for excluding aliens with terrorist_affiliations from the United States. Therefore, the failure of the INS to articulate a counterterrorism strategy is unacceptable. The INS must do so.

INS' intelligence division is poorly structured for the implementation of counterterrorism policies and plans. Specific appropriations for the staffing of an INS Counterterrorism Intelligence Unit may be warranted. INS, considering itself a significant consumer of intelligence, is critically weak in intelligence gathering from both within its own structure and its links to the intelligence community. A potential correction of this problem would be the creation of an intelligence unit at INS headquarters with a priority assigned to counterterrorism efforts. The Unit's agents would be required to continue its existing liaison with State for border security, but should also be charged with gathering intelligence from INS domestic agents as well as INS overseas inspectors. Field agents dedicated to gathering intelligence would be required to relay information directly to headquarters. This intelligence unit could then be charged with reviewing existing IBIS and TECS II database information with its own intelligence for better overall alien information.

In addition, important intelligence gleaned during "fear of persecution" or asylum reviews needs to find its way back into the intelligence community. An intelligence retrieval process could be created which maintains the intelligence as classified, handles it judiciously, and prevents disclosure to foreign governments.

Intelligence gleaned during asylum interviews must find its way back into the intelligence community in a protected manner. As in the case of Abu Mezer, arrested for his conspiracy to bomb Brooklyn transportation sites, the only information indicating terrorist affiliation was located in his asylum application.

Considering the huge volume of traffic across U.S. borders, the development and deployment of fast and complete technologies must continue to be sought for the INS and Customs inspectors who man U.S. points of entry and made available to INS border patrol who do not have counterterrorism as a top priority, but nonetheless require access to information that would facilitate terrorist exclusion.

More specifically, the development and deployment of a national entry/exit system may still be a valuable support tool for INS counterterrorism efforts.

66 The Foreign Intelligence Surveillance Act, 50 U.S.C.A. §81801–1811; 1821-1829. According to Justice's Violent Crime and Terrorism Section, FISA information could be incorporated into the prosecution's evidentiary package without notification to the FISA court and without the ability of the alien to challenge the information with a motion to suppress.

67 One source states that there is no second set of fifty cases. Rather, the first set of fifty cases remains in limbo.

68 See attached September 29 letter from Chairman Kyl to the Attorney General.

69 "American supports the IRA," Ian Paisley Jrnl at Internet (10/9/97).

The INS must retain as a priority access to database, name check, and forensic document technology for inspectors at all points of entry. It is especially important that all points of entry have access to IBIS. Although most INS employees do recognize their important security functions, INS' prevailing emphasis continues to be on the speed and efficiency of passenger processing. This inherent conflict in primary responsibilities limits the ability of INS and Customs to implement the counterterrorism provisions of the Antiterrorism Act and exclusion and removal directives of PDD-39. The two agencies are highly dependent on technology to quickly and accurately get the necessary information to admit or refer to secondary aliens with questionable links to terrorist activities.

In addition, staffing at points of entry, though reportedly adequate, is usually tightly managed and not sufficient to meet incoming volume of persons or vehicles. Overload at the primary screening venues during peak arrival times often results in the accelerated citizen examination (ACE) procedure for U.S. citizens where only documents, not names, are checked. Also of importance is that detention space is always at a premium, often forcing agents to detain some but not all individuals who raise significant security concerns.

Mandatory manifest passenger lists should be considered. Right now, air carrier participation in the Advance Passenger Identification System (APIS) is discretionary. If INS and Customs were provided passenger lists prior to all U.S. flight arrivals, partial inspections through database searches of name and date of birth could take place in the air for all arriving passengers, thus enabling the INS to better prepare for the arrival of aliens who receive a positive hit in TECS II, especially aliens from visa waiver countries who are not subject to consular office screening. Mandatory reporting may also have the collateral benefit of easing congestion at ports of entry.

The INS must make both a policy and financial commitment to fully develop and deploy a national program to track foreign students in the manner and time frame mandated by Congress.

The visa waiver pilot program increases potential U.S. exposure to terrorists by placing all exclusion responsibility on the ÎNS at our borders, while skipping the critical visa processing at State's overseas consular offices. The benefits of this program, as articulated by State, must be weighed against the public safety vulnerabilities of the program, as articulated by the INS.

The INS' decision to apply expedited exclusion to aliens who enter at ports of entry, but not to aliens who enter illegally, is a failure to implement the will of Congress, and disregards a tool that could be used to quickly and efficiently exclude terrorists who gain entry into the United States unlawfully simply by eluding detection at U.S. borders.

Justice's failure to submit even a single application to the Alien Terrorist Removal Court is disappointing, and, along with immigration law reforms permitting use of classified information in deportation hearings where the alien poses a national security threat, calls into question the overall utility of the court to counterterrorism efforts.

THE WASHINGTON INSTITUTE-POLICY FOCUS

OPEN ADMISSIONS: U.S. POLICY TOWARD STUDENTS FROM TERRORISM-SUPPORTING COUNTRIES IN THE MIDDLE EAST

(By Hillary Mann)

THE AUTHOR

Hillary Mann is an attorney and an associate fellow at the Washington Institute for Near East Policy, where she focuses on terrorism and U.S. counterterrorism policy. She has testified before the U.S. Congress and written articles on Middle Eastern terrorism for the Los Angeles Times and Washington Times. Before joining The Washington Institute, Ms. Mann served from May 1990 to June 1991 as a special assistant in the U.S. embassies in Egypt, Israel, Kuwait, and elsewhere in the Middle East. She also served for one year in the National Security Council's Near East and South Asia Directorate at the White House. Ms. Mann also practiced law for two years at a private firm in Washington, DC.

The opinions expressed in this Policy Focus are those of the author and should not be construed as representing those of The Washington Institute for Near East Policy, its Board of Trustees, or Board of Advisors.

EXECUTIVE SUMMARY

Six years after revelations emerged that Saddam Hussein sent hundreds of Iraqi students abroad to study subjects that would help Baghdad develop its nuclear weapons program, the U.S. government continues to issue visas to students from Iraq and the other Middle Eastern countries on the State Department's list of “state sponsors of terrorism"-Iran, Libya, Sudan and Syria-to study in the United States, mostly in science-related fields and probably with funding from their governments.

Current U.S. visa procedures, which are intended to exclude students from terrorism-supporting states who may be involved in terrorist activity or who come to the United States to study "dual use" subjects (i.e., those that could contribute to their countries' efforts to develop missiles and/or nuclear, chemical, or biological weapons), are weak and ambiguous. Syrian and Sudanese students are generally not subject to any special clearance procedures; Iranian undergraduates (and graduate students in all disciplines except nuclear physics and related subjects) receive only an intermediate security check, not the more extensive background check required for Iranian graduate students in the nuclear field and nearly all Iraqi and Libyan students. Only a very small number of visas have actually been denied to students from terrorism-supporting states in the Middle East.

In addition, once these students enter the United States they are not subject to any effective monitoring or tracking procedure, which means that students can declare that they are studying benign subjects such as social sciences and then concentrate on nuclear physics, chemistry, biology, and engineering without anyone in the U.S. government becoming aware of the change. Syrian and Sudanese students are also allowed to travel repeatedly outside the United States back to their countries, to other terrorist-sponsoring states in the Middle East, or anywhere else— without having to obtain a new visa or submit to an updated security check.

Finally, the data on students from terrorism-supporting states in the Middle East is incomplete, making it difficult to determine whether they present a threat to Washington's interest in preventing international terrorism and the transfer of technology to terrorism-supporting states in the Middle East.

To respond to these deficiencies, the United States should tighten its screening procedures to require a Security Advisory Opinion (SAO), its most in-depth background check, for all students from states that sponsor terrorism, and deny entry to such students seeking to study "dual use" subjects that could contribute to their countries' development of missiles and nuclear, biological, and chemical weapons. Second, Washington should prohibit Iran, Sudan, and Syria from transfering funds to finance their students' studies in the United States, as is already done with students from Libya. Third, the U.S. government should quickly and fully implement Immigration and Naturalization Service recommendations for better monitoring and tracking of foreign students once they are in the country.

Finally, Washington should coordinate with other nations that give student visas to applicants from terrorism-sponsoring countries in order to impede their access to weapons-related technologies as well as lessen the likelihood that potential terrorists will use a student visa to enter a third country such as Canada, as an easier route to eventual entry into the United States.

I-U.S. POLICY ON ISSUING STUDENT VISAS

The United States has long been a popular destination for students from around the world to pursue post-secondary education in fields ranging from Western philosophy to nuclear engineering. After completing their studies, most return to their home countries and-along with those who choose to remain in the United Statesmake positive contributions to society.

There is the potential for abuse of the U.S. student visa procedures, however, by states that sponsor international terrorism and actively seek to acquire weapons of mass destruction and missiles to deliver them. In 1991, for example, UN weapons inspectors in Iraq discovered documents detailing an Iraqi government strategy to send students abroad (including to the United States) specifically to study nuclear

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related subjects in order to develop Iraq's nonconventional weapons programs.1 One of those students, Samir Al-Araji, received his doctorate in nuclear engineering from Michigan State University and then returned to Iraq to head its nuclear weapons program, known as Petrochemical Project III, under the auspices of the Iraqi Atomic Energy Commission.2

4

Similarly, at least three Iranian officials suspected of developing Tehran's nuclear program also reportedly studied in the United States: Reza Amrollahi studied electrical engineering at the University of Texas, Mahdi Chamran studied nuclear physics at the University of California at Berkeley, and Kazem Khabir studied nuclear engineering at the University of Oklahoma.5 Libya also reportedly sent students to study abroad, including to the United States, in order to develop Tripoli's weapons programs.6

Indeed, the presence of students from Middle East state-sponsors of terrorism in weapons-related scientific fields may be a useful indicator of their countries' weapons development plans and/or the status of those programs. Yet more than six years after these revelations about Iraq's strategy, thousands of students from Iraq and other countries in the Middle East that the State Department has designated "state sponsors of terrorism"-Iran, Libya, Sudan and Syria—are still studying in the United States, mostly in science-related fields and some probably with funding from their governments.8

STUDENT VISA APPLICATION PROCEDURES

Students enter the United States by filing out visa applications that include their name, the name of the school they will be attending, their intended area of study, and certification from their school that they have sufficient funding to cover their stay in the United States. Syrian students submit the applications to the U.S._embassy in Damascus; because there is no functioning U.S. embassy in Iran, Iraq, Libya, and Sudan, students from these states must apply to U.S. embassies in other countries.

The State Department conducts a routine check of all visa applicants to see if the person has a criminal record or appears on the "alert list" of known terrorists. After this initial screening, security checks on students from each of the terrorist-sponsoring states differ according to their country of origin. Based on State Department visa issuance procedures, consular officers in U.S. embassies overseas decide which visa application from students from terrorist-sponsoring states should also be referenced back to Washington for more extensive name and background checks.

These processes are coordinated by an office of the State Department's Bureau of Consular Affairs. The first, known as "Visa Eagle," involves checking several additional U.S. government data bases for the applicant's name and information about the student's background that may connect them to terrorist activity or nuclear research and development. The other, known as "Visa Donkey," involves checking even more data bases and the preparation of a Security Advisory Opinion (SAO) on

1 David Kay, "Denial and Deception Practices of WMD Proliferators: Iraq and Beyond," Washington Quarterly 18, no. 1 (Winter 1995); "Saddam's Nuclear Weapons Dream: A Lingering Nightmare," Washington Post, October 13, 1991, p. A1.

David Kay, "Iraqi Inspections: Lessons Learned," Eye on Supply 8 (Winter 1995), p. 88. 3"Iran Plans a Vast Nuclear Build-Up," International Herald Tribue, May 15, 1998; "Iran Defends Its Pursuit of Nuclear Technology," Christian Science Monitor, February 18, 1993, p. 7. 4"Iran: Prague, Gateway to the West," Intelligence Newsletter, September 2, 1993; "Thinking the Unthinkable About Iran," Jerusalem Post, April 23, 1992.

5"Tehran Grants a Glimpse of a Nuclear Site Reborn," International Herald Tribune, May 20, 1995.

6 "Qaddafi's Great Aim for Libya is a Nuclear Capability of Its Own," Christian Science Monitor, November 12, 1980, p. 14. One such student, Haidar Barbouti, came to the United States in the late 1980s on a student visa to study liberal arts at Columbia University. While in the United States, he allegedly coordinated Libya's purchase of "dual use" military technology and chemical compounds. In addition, U.S. officials have named Barbouti's father Ihsan as the primary contractor for Libya's Rabta chemical weapons plant; see "Arms Probe Shifts to Dealer's Son," Newsday, April 21, 1991, p. 24. See also "Barbouti's Son Found Liable in Technology Theft Scheme," Houston Chronicle, March 6, 1992, p. A23.

7Marvin M. Miller, "The Proliferation Implications of the Education and Training of Foreign Nationals in Discipline Relevant to Weapons of Mass Destruction" (unpublished paper prepared for the Defense and Arms Control Studies Program, Department of Nuclear Engineering, Massachusetts Institute of Technology, March 1997).

Although much of the data in this study is from public sources, some of the information is the product of numerous "off the record" conversations and interviews with officials from the various U.S. government agencies responsible for immigration and counterterrorism issues. Their identities remain confidential.

9See appendix.

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