Beware the Slippery Slope in the DOJ-DHS Report on Foreign-Born Terrorists

Earlier this week, the Department of Justice (DOJ) and the Department of Homeland Security (DHS) issued a joint report, Executive Order 13780: Protecting the Nation From Foreign Terrorist Entry Into the United States Initial Section 11 Report (“the Section 11 Report”). Lisa Daniels, Nora Ellingsen, and Benjamin Wittes have already written separately to explain how their independent research disputes the president’s repeated claims about terrorist activity perpetrated by foreign-born persons. They also importantly point out that the report addresses only international terrorism, not domestic terrorism, further skewing the numbers supporting the administration’s claim about foreign-born terrorists.

We echo their concerns, but in this post, we focus on the report’s distinction between foreign-born and native-born U.S. citizens. The report’s authors appear to make a distinction between study subjects who are “U.S. citizens by birth” (147 individuals) and those who were “foreign-born, naturalized, and received U.S. citizenship” (148 individuals). While reconsidering and updating ineffective counterterrorism policies always makes sense, departure from the long-standing practice of treating American citizens equally in the context of counterterrorism efforts—without any basis in fact, study or analysis—raises serious concerns.

When it comes to international terrorism—the focus of the report—investigative laws and procedures, both before and after the Sept. 11, 2011 attacks, have traditionally not distinguished between native-born U.S. citizens and naturalized citizens. (Although there is a process for denaturalization under the immigration laws, that process is separate.) Executive Order 12333, which was issued by President Reagan in 1981 and established the roles and responsibilities for the Intelligence Community, defines “U.S. persons”—a term of art—this way:

United States person means a United States citizen, an alien known by the intelligence element concerned to be a permanent resident alien, an unincorporated association substantially composed of United States citizens or permanent resident aliens, or a corporation incorporated in the United States, except for a corporation directed and controlled by a foreign government or governments. Section 3.5(k)

This definition of who is a U.S. person was not changed during minor amendments to Executive Order 12333 in the 1990s and early 2000s, nor during the more significant amendments that President George W. Bush made to the order in 2008. For foreign intelligence purposes—including counterterrorism—intelligence agencies and elements do not distinguish amongst categories of U.S. citizens. Indeed, even permanent resident aliens (green-card holders) who are not U.S. citizens and may never become citizens, have been afforded the full protection of the law as U.S. persons.

The Foreign Intelligence Surveillance Act (FISA), which provides the legal framework for conducting surveillance, search, and other acquisitions for, among other purposes, international terrorism, defines U.S. persons this way, which roughly parallels the 12333 definition:

United States person means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 101(a)(20) of the Immigration and Nationality Act), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power…[] Section 101(i).

Notice that these two definitions simply refer to “citizens” of the United States—they do not distinguish between those who are foreign-born and those who are American-born. The non-distinction principles reflected in FISA and 12333 are also operationalized in agency guidelines. For example, the Attorney General’s Guidelines for Domestic FBI Operations, which lay out the standards for conducting investigations, including those related to international terrorism—do not make any distinction, either. (See Section VII.U.) Nor do DHS’ own U.S. person guidelines that are issued pursuant to Executive Order 12333. (See Department of Homeland Security, Office of Intelligence and Analysis, Intelligence Oversight Guidelines, Glossary of Terms, Section EE.) In short, for purposes of counterterrorism intelligence collection, investigation and analysis, citizens are citizens. Until now.

And, lest the reader be suspicious of our reliance on national security law, rest assured that immigration law likewise does not distinguish between those who are citizens by virtue of birth and those who are citizens by virtue of naturalization. Quite to the contrary, the Constitution, through the Fourteenth Amendment, makes it clear that the two are indistinguishable: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." Indeed, since the very first Congress, our laws have provided for a naturalization process that results simply in full citizenship not some status short of it citizenship. Or, as 22 CFR 51.1 puts it, “U.S. citizen means a person who acquired U.S. citizenship at birth or upon naturalization as provided by law and who has not subsequently lost such citizenship.”

Today, we define an alien by the contrary definition—it means simply someone who is not a citizen or national of the United States. (In case you’re wondering the phrase “national” includes some unusual cases, like residents of American Samoa.) As far as we are aware, the only place in law that a distinction between birthright citizens and naturalized citizens exists is in the Constitutional mandate that presidents be “natural-born Citizens” of the United States, excluding naturalized persons from consideration.

The DHS-DOJ report specifically and deliberately distinguishes between foreign born and U.S.-born citizens; indeed, that is its purpose. We think this is because Executive Order 13780, issued in March 2017, was not written based on sound intelligence, analysis or study; it was written to convert what appear to be the president’s personal beliefs and his campaign promises to be tough on terrorists and limit immigration, into policy.

That the Constitution applies to all American citizens and to persons inside the United States is a bedrock principle of U.S. law enforcement and counterterrorism ethos. The treatment of U.S. person information according to a prescribed set of policies and rules, is similarly baked into agency-level guidance. We are not aware of any evidence-based reason to unravel this foundational approach.

The report acknowledges as much. In several places, the report states that the information does not exist to fulfill the directive. In short—no one ever collected much of the information called for in the Order because there was no reason to collect it, and, moreover, it cuts against decades of how relevant laws and policies are implemented. To wit:

[T]his initial report does not capture the full spectrum of statistics envisioned by Executive Order 13780. DHS and DOJ will endeavor to provide additional information in future reports …

In short, at least a portion of the report is based on a distinction that has no foundation in law and that flies in the face of more than 225 years of American tradition. Given this report’s direction, as well as the rhetoric from the highest levels of this administration, we worry that DHS and DOJ will “endeavor” to gin up more data that furthers the noxious distinction between those who are American-born, and those who are not.

Citizens are citizens, no matter how they came to have that status. Characterizing them based on foreign birth is, and ought to be, anathema.