Refugee Advocates Are Losing the War of Ideas — The “National Security Exception”

***Update: Trump is now threatening to use a blanket “national security exception” to prevent members of the 2018 migrant caravan from claiming asylum.

Expelling Refugees: A Painful History

In 1939, the US government refused to let the German ocean liner St. Louis
dock in Miami, claiming there might be Nazi spies among the over 900 Jewish refugees on board. As President Roosevelt later argued, “(i)t is rather a horrible story, but in some of the other countries that refugees out of Germany have gone to, especially Jewish refugees, they found a number of definitely proven spies.”
Many of the S. Louis refugees went on to die in the Holocaust. While there had been isolated cases of refugees spying for Germany, the scale of the threat was enormously over-exaggerated by both the government and the media. Refugee advocates lost control of the narrative and Jewish refugees, rather than Nazi sympathizers, were branded as the threat. The tragedy of refugee history is that moral clarity in hindsight is often juxtaposed with dehumanization and bigotry in the present. The world has a penchant for victim blaming and shaming, particularly when it comes to refugees, and this penchant is now threatening to destroy the entire refugee system.

After the war, a committee of the new United Nations met in upstate New
York to establish an international system of laws to protect refugees. No more
would refugees be subject to the whims of individual governments bowing to
political pressure and organized bigotry. Instead, the rule of law would prevent hysteria from overriding justice. Article 33 of the Convention Relating to the Status of Refugees enshrined the principle of non-refoulement, or non-return, of any person to a country where their life or freedom could be at risk. The principle became part of several other international conventions and is part of customary law. In the United States, the principle of non-refoulement, or with-holding of removal, is found in the 1980 Refugee Law. The United Nations High Commissioner for Refugees calls non-refoulement refugee protection’s “most essential component.” By prohibiting refugee expulsions except in limited cases where the individual refugee posed a threat to national security or committed a serious crime, the international refugee regime compels states to make rational
and just choices, placing the protection of refugees above politics.

The Incredible Shrinking Protection Space

While international refugee protection was intended to be obligatory, many aspects of the current system, like the refugee resettlement program, are voluntary.
The resettlement program evolved as a policy response to mass refugee
flows like the Hungarian crisis of 1956, the Cuban refugee crisis of the 1960s and the Vietnamese refugee crisis of the late 1970s. Resettlement caps and targets are at the whim of individual governments. With the passage of the Refugee Act of 1980, resettlement became a permanent, if vulnerable, feature of US immigration policy. In almost all cases, UNHCR selects the refugees for resettlement and uses it for many functions, including protecting refugees, but also as part of “burden sharing” among states. While resettlement countries may use the program as part of their immigration strategy and as part of diplomacy, the UNHCR selection process remains very much oriented towards the protection of individual refugees. The Resettlement Handbook prioritizes only the most vulnerable. Refugees at risk of refoulement or threats to life and freedom receive priority. Nevertheless, refugee resettlement protecting individual refugees
doesn’t happen in a vacuum. What UNHCR somewhat euphemistically calls
“international burden sharing,” where rich countries help poor countries by resettling refugees, decreases the risk of conflicts spreading between states, makes local integration more possible for other refugees and bolsters the entire protection system. The importance of resettlement to global peace and security, as well as the wellbeing of all refugees, cannot be overstated.
Yet despite the urgent need for resettlement and its huge importance, the
program has been languishing in obscurity for years, ignored by the broader nonprofit, humanitarian and development communities. In 2017, only a fraction of UNHCR’s projected global need for over one million resettlement places will be met. The small number of refugees resettled each year and the program’s susceptibility to the whims of politics, including selecting refugees from certain countries while ignoring others, only highlights the political, capricious nature of the program. Most refugees live in neighboring states far from donor countries that pay UNHCR’s budget and partake in the resettlement program, and many donors resist paying for something they see as politically unpopular. Even before 2017, the United States accepted only a small number of Somali and other Muslim refugees for resettlement, numbers which stand in stark contrast to previous resettlement e orts, such as the resettlement of hundreds of thousands of Vietnamese nationals in the early 1980s. This dismal record of resettling
refugees from Muslim majority countries has been the case through multiple
US led conflicts in Iraq and Afghanistan and crises in Syria, Yemen, Libya,
Somali and other majority-Muslim countries. Yet most Americans have little
idea how resettlement helps prevent conflict or improves human rights more
generally, despite the program’s quiet popularity with faith groups and local
charities across the nation.
While the resettlement of Muslim refugees has languished, mired in controversy, there has been a steady and worrying degradation of asylum since 9–11.
In the United States, perceived security concerns have led to the employment
of abridged asylum interviews, immigration detention, stricter border controls, expedited removal and other policies that limit access to asylum, despite the supposed binding nature of the law. These measures indisputably target Muslim refugees. In 1980, the Carter administration foreshadowed today’s shrinking asylum space by ordering Iranian students to report to the immigration authorities during the revolution. After September 11th, the Bush administration put into place a registry system that led to increased deportations for some immigrants. The deportation of Muslim asylum-seekers to countries mired in war continues. For example, in 2017 the US government deported migrants and rejected asylum-seekers to Somalia. Today, we face a undeniable refugee crisis in the Muslim world, yet is an inescapable fact that Muslim refugees are being treated to a worse standard than either Vietnamese refugees or Eastern European refugees. The shrinking protection space and languishing resettlement program squeezes the entire system, leaving Muslim refugees in camps for
decades in an untenable situation. Into this tinderbox of international failure
has been thrown a pair of incendiary court cases, like twin grenades, cases which could trigger the destruction of the entire refugee system.

3 The “National Security” Exception Becomes the Rule

Unlike during the Communist era, when refugees were seen mostly as individual “dissidents” and “defectors,” today’s refugees are presented as an undistinguished mass of dangerous Muslims, a group irrevocably infected by the virus of Islamic terrorism. Public discourse and government policy on Muslim refugees has become plagued by the idea that they may be double agents for the very conflicts they are trying to escape, carrying terrorism with them like a virus.
The temptation to conflate refugees fleeing terrorism with terrorism itself has
proven difficult for the media and governments to resist. This has led to the
revival of the argument that refugees as a group pose a danger to host states. As a result of this tautology, governments are now invoking “national security” as grounds to turn back entire nationalities of refugees, threatening the integrity of the refugee system. The economic benefits of managed immigration, the popularity of the resettlement program among, particularly, conservative Christians in the US, our binding obligations to the rule of law, and the desperate need for anything that can help Muslim countries resolve conflicts, all have been swept aside, sacrificed on the alter of “national security.”
The drafters of the 1951 Refugee Convention struggled with the habit of governments of objecting to anything and everything on the grounds of “national security” and included a “national security” exception to non-refoulement, partly to encourage governments to sign on. A state may exclude or expel a refugee where “…there are reasonable grounds for regarding (the refugee) as a danger to the security of the country in which he is…” The national security exception
to Article 33, however, should only be applied in individual cases following a
hearing. UNHCR, which attempts to guide interpretation of the Convention,
argues that the exception should be applied very narrowly in individual cases.
Nevertheless, because there is no established definition for “national security” nor is there a binding procedural standard for determining when it applies, the existence of the national security exception gives states wiggle room to restrict asylum access with potentially devastating consequences. It sits like a Trojan Horse within both the 1951 Refugee Convention and US law.
2017 will see landmark court decisions on government attempts to expand
the “national security” exception beyond all meaning in the United States and
Kenya, two of the world’s most important supporters of the refugee framework.
Current government policy would expand the “exception” until it becomes the rule, destroying the refugee system. As the culmination of unprecedented hostility to Muslim refugees, these decisions mark a tipping point in the history of refugee law. It is not an overstatement to say they have the potential to destroy the entire refugee system, for whither the United States and Kenya, other governments are like to follow. 2017 may one day be looked back upon as a watershed moment in the history of refugee law, when the challenges of protecting refugees in the face of the diffuse, global “war on terror” finally breaks apart the legal framework. Or, perhaps we might witness the world take the refugee system to the next level, bolstered by lawyers, judges and activists determined to protect refugees from politics and expand the right to asylum. That both court decisions should involve Somali refugees is, perhaps, fitting, as arguably no country has been evoked as public enemy number one in the “global war on
terror” more than Somalia.

Two Court Cases, Two Continents, One “Global
War on Terror”: The Case of Somali Refugees

How did we get here, so far away from what the drafters of the Refugee Con-
vention intended? The “Global War on Terror” has created a global crisis of
fear, mistrust and victim-blaming against Muslim refugees. This crisis of victim
blaming has gripped countries from the United States, to France, India, and
Kenya, yet perhaps no refugee situation more typifies the global war on Muslim
refugees like that of Somali refugees in Dadaab camp. As Americans were facing a stark choice between two alternate visions of immigration, terrorism and security in the 2016 U.S. Presidential election, Kenyans were embroiled in their own debate on the same topics. Since the 2013 terrorist attack on a shopping
mall in Nairobi by Al-Shabaab, a terrorist group based in Somalia, Kenya has
struggled to reconcile its humanitarian responsibilities towards refugees with its fears of terrorism. In May 2016, the Kenyan government announced it was closing Dadaab refugee camp, calling it \a nursery for Al-Shabaab.” Dadaab camp in eastern Kenya is the largest in the world, home mostly to Somalis
fleeing cyclical violence, terrorism and drought. While there is little evidence refugees from Dadaab have been involved in terrorist attacks in Kenya other than vague government statements that the camp may be used as a \training ground” for militants, the issue of Somali refugees and Islamic terrorism have become linked
in the minds of many Kenyans. Underlying the issue of “terrorism,” however,
is the fact that the Dadaab issue is inexorably linked to larger concerns over
Somali immigration and a growing Muslim minority in Kenya.
Dadaab camp is the poster child of the failures of the current refugee sys-
tem. Kenya has placed pressure on donor states to accept more refugees for
resettlement with little success. Meanwhile, it resists the local integration of
Somali refugees. This has left Somali refugees in a state of permanent limbo.
UNHCR calls the Somali refugee crises one of the most protracted refugee situations in the world, with an entire generation of refugees growing up in camps like Dadaab. Somali refugees face serious protection concerns in Dadaab camp,
including crime, sexual violence, mental trauma, and a crushing loss of hope
that leads people to risk their lives to migrate elsewhere, including, increasingly, the United states. In 2014, the High Commissioner launched a Global Initiative on Somali Refugees in an attempt to galvanize support to resolve the issue, one which has come to dominate east African politics with the looming threat of catastrophic drought.
Like in Kenya, the debate over Somali refugees in the United States has been
inevitably colored by fears of Al-Shabaab, though the extent to which the group poses a direct threat to the United States is debatable. While the group has never been directly responsible for a terrorist attack in the United States, the US government has arrested both Somali nationals and US citizens of Somali descent for providing material support to the group to carry out terrorism abroad.
Al-Shabaab is considered by the US government to be an o -shoot of Al-Qaeda
and, as a result, a source of potential terrorism around the world. The United
States listed Al-Shabaab as a banned terrorist organization in 2008 and in 2016,
the Obama Administration to imposed travel restrictions on certain individuals with potential links to terrorism. According to Trump’s Executive Order,
which uses language from the Obama administration’s restrictions, “(p)ortions of Somalia have been terrorist safe havens. Al-Shabaab, an al-Qa’ida-affiliated terrorist group, has operated in the country for years and continues to plan
and mount operations within Somalia and in neighboring countries. Somalia
has porous borders, and most countries do not recognize Somali identity documents. The Somali government cooperates with the United States in some counter-terrorism operations but does not have the capacity to sustain military pressure on or to investigate suspected terrorists.” Somalia has long been one of the countries most affected by terrorism, but is also seen as one of the countries most responsible for generating terrorism.
The Obama administration agreed to accept some of the most vulnerable
Somali refugees for resettlement. In so doing, the administration was tacitly
acknowledging that refugee protection is a global system that only functions
through international cooperation and that Kenya, a key ally, needs help. It
was also acknowledging a broader truth: the warehousing of refugees creates
far more problems than it solves. As German Chancellor Angela Merkel put
it, speaking of the global refugee crisis more generally, \this is a problem that
concerns us all.” What she did not say is that we must nd a way to solve
this problem, as refugees in camps inevitably give up and leave, creating a need that is filled by smugglers and criminal gangs, a multi-billion dollar shadow system that rivals legal immigration. As UNHCR more tactfully puts it; “(W)ith
countries heavily burdened by hosting large numbers of refugees reluctant to
expand possibilities for local integration, resettlement has grown even more
vital as a durable solution.” What the agency fails to say is that resettlement is
a solution to a problem that affects all of us, for every refugee legally resettled robs criminal gangs of money and influence.
Yet the 2016 resettlement quotas were far to small to make a dent Kenya’s
refugee crisis. In fact, the quotas for resettlement have long been far below
the numbers needed to actually resolve anything. Gone are the days of mass
resettlement in response to a crisis like the Indochina \boat people” tragedy.
Instead of easing the strain on the global immigration system, the resettlement
of Muslim refugees became an unexpected and chilling talking point in the US Republican Party primary, fed by the growing Republican conspiracy theory that the President was, himself, a closet Muslim. The resettlement program became part of a deadly narrative, a story whereby the United States was being invaded and controlled by dangerous Muslims and other foreigners. Meanwhile,
the Democratic Party was embroiled in a debate over whether the minimum
wage should be $12 an hour or $15. The 2016 US election reflected a broader
pattern of a single, powerful narrative pitted against confusion, conflicting messages and a lack of focus. The refugee advocacy community has simply lost the war of ideas.
Last year, the situation in Kenya reached a tipping point. Under pressure
from the Kenyan government, UNHCR began planning for “voluntary” returns to Somalia in preparation for closing the camp. The announcement produced international condemnation yet few workable solutions. Human Rights Watch, Amnesty International and other groups rushed to note that Somalia remains an extremely dangerous place for civilians and that returns may not be voluntary.
The State Department has pointed out that the majority of Somalia is not safe
for return without offering a solution. The repatriation of Somali refugees to
Somalia would be the product of the closure of the camp and ending of services, government pressure, and cash payments. In short, it would be refoulement.
Yet the answer cannot be for Kenya to continue to warehouse Somali refugees in camps for the rest of time.
In February 2017, the Kenyan High Court struck down the government’s
plan to close Dadaab, citing both Kenyan and international law. The Court
explicitly acknowledged Kenya’s obligation to uphold non-refoulement, noting that the closure of Dadaab would leave refugees with no option but to return to Somalia. The court employed strong, unequivocal language in striking down the government’s plan: “The application of Article 33(2) requires an individualized determination by the country in which the refugee is that he or she comes
within one of the two categories provided for under Article 33(2) of the 1951
Convention. Thus, this rules out group or generalized application or collective condemnation. Unfortunately, the averment by the Government that the two exceptions discussed herein are applicable and not based on individual consideration or determination to each affected refugee but are dangerously generalized
in a manner that is a kin to collective punishment…No single arrest or conviction has been cited nor has it been established why a blanket condemnation should be applied to all refugees nor is it clear why the government with its capable and
mighty state machinery has not been able to identify any refugees involved in
crime and prosecute them instead of mounting a blanket condemnation at the risk of punishing minor children, women and innocent persons.” But it is not for courts to suggest solutions to political problems and the Kenyan government is now planning an appeal.
Meanwhile, at almost the same time the Kenyan High Court was handing
down its blistering defense of Somali refugees, federal courts in the United States temporarily blocked President Trump’s Executive Order banning immigration to the United States from seven majority-Muslim countries, including Somalia,
and suspending the resettlement program, including the resettlement of Somali refugees from Dadaab. At the time of writing, the White House is weighing its appeals strategy, with cases proceeding in the 9th and 4th circuits. The matter may proceed to the US Supreme Court. Unlike the Kenyan High Court, the 9th Circuit did not mention refugee law, indicating instead that a final decision may rest on US Constitutional law. This is a shame because the case will likely
prove critical for the refugee regime. The Executive Order represents a sweeping violation of the principle of non-refoulement. By halting all immigration from Somalia and other majority-Muslim countries, as well as suspending the resettlement of Somali and other Muslim refugees, the Trump administration will remove all possibility of asylum and protection for refugees in the United States for these banned nationalities without any recourse to due process or chance of a hearing. Most ominously, however, is the Executive Order’s affect on discourse about Muslim immigrants. The narrative of the “Muslim ban” is that
non-Muslim countries are in some sort of end-of-times, global conflict with Muslims. It signaling to our allies like Kenya that the US will not only do nothing to help them care for Muslim refugees, but that we have actually declared war on Muslim refugees. Other countries will most likely follow by banning Muslim refugees and asylum-seekers, triggering the collapse of the refugee system.
Trump is great at optics, and the optics of the Muslim ban were epic. Take
the case of Somali refugees. Overnight, travel from the seven countries was
halted along with the resettlement program, with some people actually in midair at the moment the Executive Order was signed. Many commentators have argued this was a “public relations disaster” for Trump, but it played into the narrative that Muslim immigration to the US is a “crisis.” The effect on international relations cannot be overestimated. As the Kenyan government watched, over 100 refugees from Somalia who were scheduled to leave Kenya, their country of first asylum, for the United States were blocked from leaving
and some were sent back to Dadaab and Kakuma refugee camps, where some
are now in grave danger. Some Somali refugees slated for US resettlement ended up stuck in temporary transit centers, their long-term destinations unknown.
Dadaab is so dangerous, Department of Homeland Security and USCIS staff
do not travel to the camp for resettlement interviews. The United States is
therefore returning refugees to a place it has deemed too dangerous for its own employees. The message to other countries was heard loud and clear. As the Kenyan government put it, prioritizing security over refugees is now “standard practice worldwide.”

Losing the War of Ideas

The current toxic political crisis means refugee advocates must face some tough questions they usually try to avoid. In particular, why do governments and the media vilify Muslim refugees? How can this trend be reversed? These
are difficult questions because they hinge less on facts and laws, things refugee lawyers love, and more on narratives and feelings, things we tend to avoid.
Refugee advocates have all the facts on their side, yet this seems to make little difference to the feelings of voters. Strikingly, the US has never suffered a terrorist attack by a refugee. “Radical Islam” in fact accounts for far fewer
terrorist attacks in the US than home grown terrorism. The chances of being
killed in a terrorist attack in the US are vanishingly small. Yet, over fifty
percent of Americans are afraid of being directly affected by a terrorist attack.
Meanwhile, the terrifying link between cell phones and the horrendous increase in traffic deaths goes almost unnoticed and unreported. It’s easy to blame “the media” for this state of affairs, but the refugee advocacy community must also look to itself and ask why we have so wholly lost control of the narrative. Most crucially, we must learn to speak frankly about how racism and religious hatred drive the narrative on terrorism.
The media is now, belatedly, questioning if there is really a causal link
between refugee admissions and terrorist attacks in the US.

James Hathaway points the US government has not been able to mount a coherent justification of the Executive Order based on the actual risk posed by individual refugees. One might point out that Saudi Arabia, one of the majority-Muslim countries most associated with terrorist attacks in the US, accounts for only a small fraction of asylum applications and is not one of the seven (now six) countries targeted by the ban. Iraq was removed from the ban, arguably because the US military was
having trouble explaining it to the Iraqi government, which begs the question of whether the current administration even believes “Islamic terrorism” from any of the banned countries is really a threat to the United States. Finally, the government has no evidence for the claim that 300 resettled refugees in the United States are under investigation for connections to terrorism. These are all good points, but they don’t matter, because the purpose of the Executive Order isn’t to prevent terrorists from entering the US, its to prevent Muslim immigration.
When Kenya calls Dadaab camp a “nursery for Al-Shabaab,” it really means the camp is an actual nursery for Muslim babies, a future generation who one day will have to be integrated into Kenyan society. As Human Rights First points out that the Executive Order will disproportionately impact Muslim refugees,
meaning it will decrease the number of Muslims in the United States. Somalia
is the top majority-Muslim asylum country of origin in the United States. Iraq
and Somalia were also the top majority-Muslim countries of origin for refugee
resettlement to the US, followed closely by Iran, Syria and Sudan. The Trump
administration itself tacitly admitted the Executive Order is a \Muslim Ban.”
The fact that the US and Kenyan governments are now seeking to ban Muslims and deport them en masse seems to have taken the advocacy community by surprise. While the international refugee advocacy community slept, the narrative of “Islamic terrorism” took over the conversation. We simply failed
to engage in a meaningful way with the terrorism debate, seeing it as outside
our purview and ceding the argument. Having lost the war of ideas, we are
now facing very real changes to refugee law, both in the US and abroad. The
US has now elected a government hostile to Muslims which has unabashedly
enacted a Muslim Ban. Official government policy now designates Muslims to
be a national security threat. As Human Rights Watch has noted, the negative
portrayal of Muslim refugees is a global problem, yet its lack of a basis in fact
in the United States is particularly striking, not the least because we are sup-
posed to be some sort of “global leader” on refugee rights. Other countries like Kenya are also seeking to ban Muslim immigration and they see nothing but encouragement from the United States.

Unfortunately, our failure to challenge the narrative on “Islamic terrorism”
means a likely collateral victim of the crusade against Muslim refugees will be
the refugee system itself. Like turning back a boatload of people in mortal
danger from the Nazis because there might be a single Nazi hidden on board,
current refugee policy elevates blaming the victim to a new level, eliminates
any and all due process and circumvents the purpose of the Convention, which was to provide asylum to individuals fleeing persecution from the very sort of terrorism and lawlessness governments now invoke. It creates a sort of terrible circular logic, whereby the persecutory actions of terrorist group are used to justify persecution of their victims. If Kenya and the United States succeed in baring Somali and other Muslim refugees, other countries will likely follow suit, causing the collapse of non-refoulement. The outcome of these two court cases could very well be the destruction of the entire protection system.

But it may not be too late to change the narrative. Trump’s election has brought forth many painful but necessary discussions among refugee advocates and the larger “progressive” community about, for example, the idea of “open borders,” the definition of “terrorism,” the usefulness of the United Nations and the European Union and the purpose of international law. Hopefully, this conversation is going somewhere, and fast.

This article was published in edited format on Refugees Deeply.