Americans should be grateful that the Constitution offers us some protection from the United States Department of Homeland Security (DHS).
Refugees seeking admission to this country are not so lucky. Overseas, DHS under the Obama Administration is relying on "secret evidence" to rescind offers to resettle hundreds of refugees who fled countries where they faced a well-founded fear of persecution.
Why is this happening?
In 2009, Iraqis Waad Alwan and Mohanad Hammadi managed to enter the U.S. as refugees, even though their fingerprints had been lifted from home-made explosive devices targeting U.S. forces in Iraq. Somehow, they made it through the fingerprint and multiple security checks conducted by DHS.
On the bright side, Alwan and Hammadi are now in jail awaiting trial, which never would have happened had they remained outside the United States.
Upon discovering this security lapse early in 2011, DHS brought the U.S. Refugee Program to an abrupt halt, cancelling nearly all refugee travel to the U.S. while putting in place a new "pre-travel" security check. Thousands of approved refugees saw their flights cancelled. Many of them had risked their lives working with the U.S. Armed Forces overseas, or were Christians fleeing religious persecution and seeking to join family members in America. DHS promised this interruption would be temporary, and that most refugees would travel after clearing one last security check. Yet the number of refugees who entered the United States in the fiscal year ending September 30, 2011 was nearly 20,000 fewer than the year before, and 24,000 less than the 80,000 authorized by Congress. Refugee advocates initially accepted this, as none of us want terrorists to use the Refugee Program as a Trojan horse to enter the U.S.
Hundreds of refugees, however, were not able to pass the additional security check at all. Recently, DHS started informing approved refugees that the Department was invoking its discretion to rescind offers to resettle them as refugees.
In September, at an overseas refugee processing post, I personally witnessed delivery of six such rescissions to refugees and their families. DHS did not tell them the reason for the denial, as the basis was secret evidence. What I saw causes me to question the reliability of these "security checks." Five were Christians who fled religious persecution and sought to reunite with family in the U.S.:, a young unmarried female hairdresser, an unmarried middle aged female receptionist, and a severely disabled man traveling with his parents, one in a wheelchair and the other their full-time caretaker. All of these were expecting to reunite with family members in California. Other no-longer approved refugees I met were similarly unlikely suspects.
All of these refugees now may have to return to their countries of persecution. For their protection, I cannot disclose these countries or other details that could compromise the refugees' identities and put them at further risk.
All were shocked and most broke down and cried when they received the news that DHS -- having interviewed them and approved them as refugees months ago -- was rescinding their refugee approvals without explanation or further interview. Upon learning his family had been de-approved, one told us, "It would have been better had you given us poison than this news. What do we do now? What about our human rights? What happened to them?"
Why is DHS rescinding offers of resettlement overseas without telling refugees why? Because it can. The Constitutional right to due process does not apply to refugees who have not yet officially entered the U.S. While the current scope may be unprecedented, this practice is nothing new. In 1950, in Knauff v. Shaughnessy, the Supreme Court upheld the authority of the executive branch to use "secret evidence" as a basis to deny admission. In that case, a German Jew whose entire family was murdered by the Nazis in concentration camps attempted to enter the U.S. as the wife of a GI under the War Brides Act. Ellen Knauff had served the British Royal Air Force as well as the U.S. Army with distinction. She was detained on Ellis Island from 1948 to 1951 on the basis of secret evidence.
In his eloquent dissent in Knauff, Justice Robert H. Jackson wrote, "The menace to the security of this country, be it great as it may, from this girl's admission is as nothing compared to the menace to free institutions inherent in procedures of this pattern. In the name of security, the police state justifies its arbitrary oppressions on evidence that is secret, because security might be prejudiced if it were brought to light in hearings. The plea that evidence of guilt must be secret is abhorrent to free men, because it provides a cloak for the malevolent, the misinformed, the meddlesome, and the corrupt to play the role of informer undetected and uncorrected."
DHS asserts it has the legal authority to rely on secret evidence to rescind offers of refugee resettlement overseas and throw refugees back into danger. But for DHS to do so without even speaking with the refugees to ascertain the validity of adverse intelligence is unfair, indecent, and sets a bad example for other countries. Refugees beware: the United States, once a leader in refugee protection, is demonstrating to the world that a government can turn back any refugee by inaudibly uttering the words "national security." Let's be thankful that DHS can't use secret evidence against American citizens. At least, not yet.
This blog has been altered from an earlier version.