State of Hawaii v. Trump

Filing 198

MEMORANDUM re 65 MOTION for Temporary Restraining Order [MUSLIM ADVOCATES, AMERICAN MUSLIM HEALTH PROFESSIONALS, MUPPIES, INC., THE NATIONAL ARAB AMERICAN MEDICAL ASSOCIATION, AND NETWORK OF ARAB-AMERICAN PROFESSIONALS' BRIEF OF AMICI CURIAE IN SUPPORT OF PLAINTIFFS' MOTION FOR A TEMPORARY RESTRAINING ORDER], filed by American Muslim Health Professionals, Muppies, Inc., Muslim Advocates, Network of Arab-American Professionals, The National Arab American Medical Association. (Attachments: # 1 Declaration of Anton A. Ware, # 2 Exhibit 1 - Shutdown Press Release, # 3 Exhibit 2 - Anderson Cooper Interview, # 4 Exhibit 3 - State Rudy Guiliani, # 5 Exhibit 4 - Miller on Fox News, # 6 Exhibit 5 - WaPo Kansas Suspect, # 7 Exhibit 6 - Seattle Kent, # 8 Exhibit 7 - Fire store owner, # 9 Exhibit 8 - WaPo pipe attack, # 10 Exhibit 9 - Spate of mosque fires stretches across the country, # 11 Exhibit 10 - Politico absolute no choice but to close down mosques, # 12 Exhibit 11 - Georgetown Bridge Initiative Trump Cites Flowed Poll, # 13 Exhibit 12 - Republican Candidates Debate in North Charleston, South Carolina, # 14 Exhibit 13 - Transcript Donald Trump's national security speech, # 15 Exhibit 14 - 60 Minutes Trranscript, # 16 Exhibit 15 - Meet the Press, # 17 Exhibit 16 - Presidential Candidates Debates, # 18 Exhibit 17 - Christian Broadcasting Network, # 19 Exhibit 18 - Donald Trump on Twitter defends Muslim ban, calls work a 'horrible mess', # 20 Exhibit 19 - Pew Reseach Center 2016 Refugees, # 21 Exhibit 20 - DJT Tweet, # 22 Exhibit 21 - So called judge tweet, # 23 Exhibit 22 - See you in court tweet, # 24 Exhibit 23 - Sean Spicer press conference, # 25 Exhibit 24 - Stephen Miller key engineer, # 26 Exhibit 25 - Stephen Miller Islamofascism, # 27 Exhibit 26 - Pew Forum, # 28 Exhibit 27 - State Dept Country Report, # 29 Exhibit 28 - DHS, # 30 Exhibit 29 - DOJ Iraqi Kentucky, # 31 Exhibit 30 - Cato, # 32 Exhibit 31 - Lawfare, # 33 Exhibit 32 - Brennan Center, # 34 Exhibit 33 - Letter Former Officials on March 6 EO, # 35 Exhibit 34 - Trump delays new travel ban after well-reviewed speech - CNN Politics, # 36 Exhibit 35 - Families hoping to make the U.S., # 37 Exhibit 36 - Trump Muslim ban is tearing apart families, # 38 Exhibit 37 - Children and Refugees Who Planned Medical Care in the US Stuck After Trump Executive Order - Health News - ABC News Radio, # 39 Exhibit 38 - Trump's Travel Ban, Aimed at Terrorists, Has Blocked Doctors - The New York Times, # 40 Certificate of Service)(Kacprowski, Nickolas) Modified on docket title text on 3/14/2017 (ecs, ).

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What the Data Tells Us About Immigration and Terrorism

What the Data Tells Us About Immigration and Terrorism
BY ANDREW LINDSAY
February 17, 2017

On
January
27,

President Donald Trump signed an executive order enacting a 90-day suspension of all visas for
nationals of Iraq, Iran, Libya, Somali, Sudan, Syria, and Yemen. The asserted purpose of the order
is to protect the United States from “terrorist attacks by nationals” under the pretext that “numerous
foreign-born individuals have been convicted or implicated in terrorism-related crimes since
September 11, 2001.” This claim underlies the order’s indefinite bar on Syrian refugee admittance,
120-day bar of other refugees, and the 90-day travel ban affecting nationals from the seven Muslim
countries listed above. An earlier version of the order which was leaked to the press stated that
“hundreds of foreign-born individuals have been convicted or implicated in terrorism-related crimes
since September 11, 2001.”
Both the leaked draft and the order suggest that there is a horde of terrorists who are bypassing the
screening process employed by U.S. consulates around the world. But as the CATO Institute has
demonstrated, Americans face a de minimis risk of death from terrorism at home: 1 in 3.6 million.
The false assertion that domestic terrorism is a largely Muslim problem is more a reflection of the
President’s misguided belief in Muslim conspiracies and an interconnected web of “global jihad ”
than actual empirical evidence. Framing potential terrorism as foreign, undifferentiated, and
uniquely Muslim serves no other purpose than to deepen fears of an immigrant “other” in order to
increase executive power.
The apparent basis for this focus on foreign born terrorists seems to be a 2016 analysis released by
Attorney General Jeff Sessions, which investigated a Department of Justice list of 580 terrorism and
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terrorism-related convictions. The analysis concluded that at least 380 convictions were of foreignborn individuals. Earlier that year , the then-Senator decried “the dangerous and costly status quo”
associated with investigating “immigrant suspects in the United States” while admitting “680,000
migrants from Muslim countries [into the U.S.] every five years.” Sessions claims that the
immigration of people from Muslim-majority countries represents a failure of costly counterterrorism
efforts. But a close analysis of the data undermines this conclusion.
First, in what seems like an attempt to inflate numbers, Sessions’ analysis lumps together terrorism
convictions and cases in which individuals were implicated in terrorism, two very different things.
Sessions’ analysis came on the heels of three letters sent to the Departments of Justice, Homeland
Security and State demanding “immigration histories of individuals implicated in terrorism since
early 2014.” According to Sessions, “implicated ” is a very broad standard that could include any
convictions resulting from a terrorism investigation, even those without definitive links to
international terrorism. In fact, only 194 of the 380 foreign-born convictions identified by Sessions
(51 percent) were prosecuted for terrorism offenses. But this does not mean that 194 people were
convicted of terrorist attacks. Rather, the vast majority of these individuals (68 percent) were
convicted of “material support” of terrorism, which are cases where money, goods or other
resources were provided to someone associated with a U.S. designated terrorist group. This result
closely matches findings from a recent Fordham University study of all ISIS-related convictions from
May 2014 to June 2016. The study revealed that 70 out of 101 charges (69 percent) were for
“material support” of terrorism. Under the material support law, there is no requirement that the
assistance provided was intended to, or assisted in any violent act.
An egregious example of material support is the case of the Holy Land Foundation for Relief and
Development (HLF), formerly one of the largest Muslim charities in the United States. The five
defendants, all leaders in the organization, were convicted of 108 criminal counts, including material
support of terrorism, money laundering, and tax fraud. HLF, now defunct, was convicted of providing
material support to Hamas, a designated foreign terrorist organization in the Palestinian territories.
The prosecution did not assert that “HLF was funding Hamas directly or that its money was used (or
was intended to be used) to support suicide bombings or other sorts of violence.” Only that the
government maintained that Hamas controlled the local organizations HLF funded thus helping
“Hamas win the ‘hearts and minds’ of the Palestinian people.” This claim was undermined by the
fact that the U.S. Agency for International Development provided funds to the same organizations
for at least three years after the government closed HLF. An attorney for one of the defendants,
Nancy Hollander summed the problem with this case best, “the government traced every penny
from the Holy Land Foundation directly to charity. No guns, no suicide belts, no explosives. Yet,
because this charity went to families in Palestine, it was a crime.” The five defendants were
sentenced to a combined total of 180 years in prison.
The other 49 percent of convictions – which the Sessions analysis describes as “implicated in
terrorism” and the Justice Department called “terrorist-related offenses”—were actually convictions
for crimes ranging from immigration fraud to obstruction of justice. It is not possible to verify the
Justice Department’s claim that these cases involved “charged violations of a variety of other
statutes where the investigation involved an identified link to international terrorism” and may have
“connections to international terrorism that are not apparent from the nature of the offenses of
conviction themselves.” However, the use of this category was criticized by the DOJ Inspector
General as “inaccurately reported by significant margins” in a September 2013 audit . Indeed, as far
back as 2003, the Government Accountability Office reported that the “DOJ does not have sufficient
management oversight and internal controls in place to ensure the accuracy and reliability in its
terrorism-related convictions.” Although the Department was found to have “revised its procedures
for gathering, classifying, reporting terrorism-related statistics based on recommendations” from
subsequent audits, the DOJ Inspector General maintained in 2013 that “implementation of the
revised procedures was not effective to ensure that terrorism-related statistics were reported
accurately.”
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Second, at least 75 of the total of 194 terrorism convictions resulted from FBI sting operations. This
figure was obtained by cross-referencing a Mother Jones database of terrorism-related sting
operations and the Sessions analysis. These convictions may not be indicative of real threats. For
years , the FBI has targeted dozens of individuals, and provided them with the inspiration,
resources, and tools to carry out domestic terrorist plots or provide material support to terrorist
groups. Many of these cases involve people who were not part of any foreign terrorist group and
may never have had the interest or capacity to threaten national security without significant FBI
encouragement and resources.
For example, Laguerre Payen is one of four convicted in a Newburgh, NY sting operation made
infamous by an HBO documentary . An FBI informant recruited James Cromite, a low-level drug
dealer and offered him $250,000 to recruit three other Muslims and carry out an attack. The
informant recruited Payen , a homeless crack addict and paranoid schizophrenic. When told of a
trip to Florida as reward, Payen said he could not go because he had no passport. He hardly posed
the type of threat on which the government should expend resources.
Another example is Patrick Abraham , one of five convicted in a Miami sting operation. An FBI
informant targeted a group of poor African-American and Haitian men, offering them $50,000 to join
a terror plot. Subsequently, the informant recorded Abraham and the other men pledging allegiance
to al-Qaeda. The group, dubbed the Liberty City 7, was not even Muslim, but a sect of the Moorish
Science Temple that called itself the “Seas of David .” According to Mother Jones , the men were
financially strapped misfits who operated out of a warehouse, where they had no weapons save a
ceremonial sword. They were clearly misguided in seeking support from a purported member of a
terrorist group but not, as the government asserts, domestic al-Qaeda operatives intent on, much
less capable of, committing harm to the United States.
Third, the Justice Department list of foreign born terrorism convictions covers a range of disparate
foreign terrorist organizations (FTO's) with very different political aims. These FTO’s pose varying
degrees of risk to US national security. For instance, some of convictions involved groups such as
the Cambodian Freedom Fighters (Cambodia), the Front for the Liberation of the Enclave of
Cabinda (Angola), and the Tamil Tigers or the Liberation Tigers of Tamil Eelam (Sri Lanka), militant
political organizations involved in violent conflicts in their respective nations, but pose no known
domestic threat.
The executive order’s attempt to cast America’s terrorist threats as uniquely Muslim, interconnected
and undifferentiated belies the immense heterogeneity of terrorist organizations from outside the
country. Empirical evidence demonstrates that Americans face more concrete threats from
“homegrown extremism ” and even then, in a given year an individual is more than twice as likely to
be killed by a far right extremist as opposed to someone claiming ties to Islam.
There is no question that terrorism is a serious national security issue but the threat is complicated.
Relying on raw and undifferentiated data serves to obfuscate rather than assist the development of
an effective response. The claim that foreign-born individuals have a greater propensity to commit
terrorism, and that limiting foreign-born individuals travel into the United States on this basis will
have a positive impact on national security, is another example of an “alternative fact ” that should
have no place in the day to policy operations of the state.
(Image: Flickr.com/GeoLiv )

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