By Sylvia Longmire
Contributor, In Homeland Security
Once again, President-elect Donald Trump is making headlines—this time for his consideration of what’s being called a Muslim registry. Kris Kobach, Secretary of State for Kansas and a candidate for Secretary of Homeland Security, told Reuters on Nov. 15 that Trump’s policy advisers had discussed drafting a proposal for his consideration to reinstate a registry for legal immigrants from Muslim countries. His statements stoked fears that reminded many of Japanese internment camps during World War II and elicited more cries against racism and bigotry.
National Security Entry-Exit Registration System
However, this kind of registry system is nothing new for the United States. CBS News explained that Kobach designed a similar database system while working for the Justice Department under President George W. Bush. After 9/11, Kobach helped implement the National Security Entry-Exit Registration System (NSEERS), which required non-citizen men from certain Muslim-majority countries living in the U.S. to register and continuously update the government about their whereabouts. It also required individuals to go before immigration officials for fingerprinting, photographing, and comprehensive questioning. After heavy criticisms from civil liberties groups, the Department of Homeland Security (DHS) eventually ended the controversial program in 2011.
Every year, the U.S. Border Patrol captures hundreds of illegal immigrants along the border from countries associated with terrorism. This means many more of these individuals will likely successfully make it across. In 2003, DHS also created a list of “specially designated countries” (SDCs); a May 2011 report from the DHS Office of the Inspector General explained that these are countries “that have shown a tendency to promote, produce, or protect terrorist organizations or their members.” Policy stated that any unauthorized visitors to the U.S. from these countries—referred to as “special interest aliens,” or SIAs, would be detained by U.S. Immigration and Customs Enforcement (ICE) and subject to a special security screening called a Third Agency Check. “The purpose of the additional screening,” said the report, “is to determine whether other agencies have an interest in the alien.”
Special Interest Alien Handbook
Especially after 9/11, it was easy to see why many of the countries made the cut. The list included Afghanistan, Iran, Iraq, Lebanon, Libya, Pakistan and Yemen. The DoD published its own report in March 2008 titled, “Special Interest Alien Handbook.” For each country on the list, the handbook dedicated two pages—one with a country map and one with information containing facts like the country’s language(s), flag, and predominant religious and ethnic groups. In the acknowledgements section, the report states:
“This smart book was compiled by Joint Task Force North in response to a support request by the United States Border Patrol. The purpose is to provide the Department of Homeland Security with a basic reference and questioning guide to determine the validity of an apprehended individual’s stated country of origin and to assist in identifying those that are Special Interest Aliens (SIAs).”
DHS never went out of its way to advertise this list of countries or use the terms “specially designated countries” or SIAs, but the program’s existence was not a secret. In fact, during a January 2012 panel discussion at the Woodrow Wilson Center in Washington DC, then-DHS Secretary Janet Napolitano told reporters, “With respect to Mexico, we’ve been working very closely with them – there’s a whole category called SIAs – Special Interest Aliens is what it stands for,” and added that DHS watches that category of foreign visitors “very carefully.”
Supervision of Aliens Commensurate with Risk Report
In fact, DHS has already distanced itself from the list by then. The DHS Inspector General’s Office’s 2011 report “Supervision of Aliens Commensurate with Risk” was revised in December 2011, and the following text was inserted in place of the country list:
“The specially designated country list as described in Appendix D was created in 2003, is outdated and is being eliminated…The list was not based on any judgment that the states listed supported, sponsored or encouraged terrorism. Indeed, many of the states listed are important and committed partners of the United States in countering terrorism. As threats around the world evolve, the United States will continue to work closely with our international partners to ensure the safety and security of people around the globe.”
The country list in the May 2011 version of the report included Israel—something that likely angered Israeli government officials. In July 2011, ICE Director John Morton said, “The addition of Israel to the list… was based on inaccurate information provided to the OIG during the course of its audit.” The list also included other countries known as staunch US allies, like Turkey, and countries the US government was trying to support in the wake of the “Arab Spring” that started a year earlier.
A Registry and ‘The Power of the President’
As shocking as these registration systems might seem to many, they are completely legal. Neither system mentioned above was deemed illegal by any court during their existence, and Jonathan Turley, a law professor at George Washington University, told Politico.com that the Supreme Court has “consistently reaffirmed the power of the president to control the entry and exit from the country as a matter of national security.” Such precedent, he said would give Trump’s administration a decided advantage in any litigation.
The ultimate test of such a registry, if re-implemented, would be its effectiveness in preventing terrorist attacks in the U.S. However, attacks in the last several years have been conducted by “homegrown” lone wolf extremists—most of whom are U.S. citizens or residents—who have been inspired by ISIS to act. These individuals would be unaffected and unimpeded by such a controversial registry. Public outcry and practical analysis may prevent such a registry from being implemented, but legal arguments likely won’t.
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