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Commentary: The American SAFE Act will not make us safer

Scott Forsyth

Scott Forsyth

The terrorist attacks in Paris and Bamako, Mali, were horrific. We do need to be more vigilant in our efforts to deter such attacks in the future. Unfortunately, in this country certain folks are trying to take political advantage of the events.

We have a presidential candidate who bellows the police should conduct 24/7 surveillance of mosques and the government should register all Muslims residing in America, no matter what their citizenship status. He shows little regard for the First, Fourth and Fourteenth Amendments, which, to be frank, would make him a dangerous president.

Then there are the 31 governors who have announced they oppose – in some cases will block – the resettlement of Syrian refugees to their states. Their statements are completely at odds with our fundamental value of protecting persons seeking safety from war and persecution.

Besides stirring up xenophobia, what the governors propose is unconstitutional. The federal government establishes immigration policy, including the terms of admission to the country. Once aliens are legally admitted, they are free to live in any state and enjoy the protection of the state’s laws. The Supreme Court has regularly struck down attempts by states to regulate the presence of aliens, see, e.g., Graham v. Dep’t of Public Welfare, 403 U.S. 365 (1971) (Arizona’s denial of welfare benefits to aliens who have resided less than 15 years in the United States a violation of the Equal Protection Clause).

If the states cannot alter immigration policy with respect to Syrian refugees, can Congress do so? Yes, if done correctly, which leads us to the American Security Against Foreign Enemies Act of 2015, or the American SAFE Act.

The House adopted the SAFE Act on Nov. 19, and, lo and behold, who voted in favor of it – Rep. Louise M. Slaughter. You can read her rationale for the vote on her website and decide whether it jibes with what others are saying about the security threat and the current refugee admission process.

I have concerns about the constitutionality of the bill.  It is short and to the point. It requires the FBI, in addition to the Department of Homeland Security, to conduct a “background investigation” on “each covered alien” … “before U.S. refugee admission.” After the investigation the DHS, the FBI and the director of National Intelligence must all agree to admit the “covered alien.”

And who is a “covered alien?” Any “national or resident of Iraq or Syria” or any alien applying for refugee admission who “has been present in Iraq or Syria at any time after March 1, 2011.”

The bill does not uses neutral terms, such as all persons seeking admission as refugees. Instead, it focuses on two countries – Iraq and Syria – and imposes an extra obstacle to the admission of refugees with ties to them.

Thirty years ago, the Supreme Court stated “when a statute classifies by race, alienage, or national origin, (t)hese factors are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy. …” Consequently, “these laws are subjected to strict scrutiny.” They must be narrowly tailored “to serve a compelling state interest,” Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985).

So, Louise, what is the compelling state interest to justify the bill’s discrimination on the basis of national origin? The need to keep out Syrian and Iraqi refugees who may pose a threat to national security? Do you have any evidence “bad guys” have slipped into the country posing as Syrian or Iraqi refugees? As you note in a press release, we have only admitted 2,034 Syrian refugees since 2011, most of whom are children.

What is defective about the current vetting process of refugees that warrants special treatment of Syrian and Iraqi nationals and persons who were merely present in the two countries? In other words, why is not the current process, which applies to all persons seeking admission as refugees, a more narrowly drawn means to achieve the bill’s goal?

Louise may respond the protections of the Constitution do not extend to aliens living abroad. Therefore, Congress may freely discriminate among aliens applying for refugee admission on the basis of national origin.

The response is correct but overlooks one fact. Aliens do enter the country legally and then apply for refugee status. Once they are present, they are persons entitled to the equal protection of our laws.

Louise is counting on the Senate to improve the SAFE Act. Here’s hoping the Senate just kills the bill that reflects prejudice toward Syrians and Iraqis.

Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU, but the views expressed herein are his own. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.

15 comments

  1. Thanks again Scott for another insightful commentary. This is why I look forward to reading his work every week.

  2. Mr. Forsyth, are you proposing that we wait until after a Syrian or Iraqi refugee turned terrorist slaughters innocent civilians as in Paris before we reevaluate our asylum process? How do you suggest we uphold our civil liberties while respecting the national security concerns of millions of Americans? The American SAFE Act seems to be an overreach resulting in a “show vote” for national security hawks (and wannabes like Louise Slaughter) to show constituents they are doing something…. This bill will not be signed by the President, and the result as usual is that the American people are less safe. Perhaps the visa waiver program should be the first priority of security-minded Congressmen.

  3. Mr. Altier,

    The notion of a Syrian refugee turned terrorist is slim at best. You do understand that these folks are the victims, right? That het have seen family members slaughtered left and right. I highly doubt that they would be inspired to join the group that has slayed their loved ones.

    With the multiple agency process of vetting, it is highly doubtful that a refugee would present any issue. It would be easier for a terrorist to seek a passport vs. trying to get in the country via the refugee process (which takes nearly two years) Canada, Spain, France all still are accepting of refugees.

    The American SAFE Act is a solution without a problem. There is no hoard of Syrian or Iraqi terrorist amongst the refugees. Put aside fear, and use the logical process.

  4. Chris,
    Thank you for your opinions. I am looking forward to Mr. Forsyth’s response in light of the San Bernardino terrorist attack. While the wife was not a refugee, she essentially passed a stricter, more secure process when she entered the US using a fiance visa. Slim at best?…. I don’t think so.

  5. Dear Sir,
    I think San Bernadine takes care of any of your arguments as to why we should apply strict measures to all of them. I hope that after this incident you have in fact taken a different view. Having a young woman, who is also a new mother, willing to die for terrorists speaks volumes as to what they will do for ISIS. No one suspected her. No one suspected him. Go tell your opinion to the families of the victims they left behind.

  6. Funny how no one is crying for the families of the people killed by the terrorist at Planned Parenthood. I guess if someone is a white male, and is a Christian, that goes against the predetermined narrative of what a terrorist is. So it’s popular if people ignore that breed of terrorist. Funny how no one comments about people like him.

    My view is firm. I’m using logic and not fear. I’m not going to give into the xenophobic rhetoric that consumes the day. Now, if others are willing to add fuel to the fire that assist ISIS in radicalizing people, that’s up to them.

  7. Chris,
    This commentary by Mr. Forsyth is regarding the refugee situation, so please do not conflate the Planned Parenthood issue. That white extremist is just as contemptible as these jihadists. Fortunately, the world has not suffered through decades of anti-abortion shooters like we have experienced with the global jihad.

    Back to the matter at hand if you don’t mind…. The UN says that 65% of the refugees are men, not women and children. Only 26% are actually from Syria.

    Islamic State has boasted about exploiting the refugee migration to infiltrate the West. Throughout the Islamic World, IS maintains 5 to 10% favorability in polls. That’s a lot of people. Non-Syrians are finding it very easy to buy official Syrian passports and thus pose as refugees.

    The US does not have much of a database to cross-reference or query when vetting refugee candidates. In addition, most Gulf countries are not accepting refugees.

    In a recent study, 51% of US Muslims would reject the US Constitution in favor of sharia law (multiple wives, honor killings, child marriage, etc.). European countries that have accepted these refugees have experienced dramatic increases in violent crime including rape, rioting, and assault.

    For these reasons and more, it seems prudent to take a step back, press pause, and evaluate all aspects of this refugee settlement issue.

    I still look forward to Mr. Forsyth’s response to our conversation.

    Source: http://savethewest.com/ten-vital-facts-about-the-refugee-crisis-that-every-american-should-know/#(1)

  8. Tim, I was answering the reply from Deb, who brought up the shootings in San Bernadine. That’s when I brought up the terrorist attack on Planned Parenthood, bringing home my point that the moniker of “terrorist” seems to be exclusively reserved for Muslims, and not extended to a white person.

    As for some of your numbers, they seem to come from a debunked study championed by Fox News, and found to be a falsehood by others.

  9. Chris,
    You are losing steam…. Which numbers do you dispute? Each is referenced and linked in that source.

  10. Chris, you may have another source, but which numbers that I posted do you dispute? Your source names numerous Republican candidates but no Democrat candidates. Your source is political; mine is not. This is not about politics. This is about the safety of the American people, and you’ll notice that my source was published before the Paris terrorist attacks.

  11. The author here. Chris, Tim, and Deb, this is a great, robust discussion. As I said in my column the SAFE Act targets two groups by nationality, without any evidence here or abroad that these groups are more likely to breed terrorists than other nationalities, including persons who are citizens of the USA. In this respect Chris your reference to the PP slaughter is apt. But I do disagree with the implication in Tim’s comments that maybe we have to surrender some liberty to be more secure. That is a false choice. We can be both free and secure, if we pass smart laws and enforce existing laws in a smart manner that recognizes the values enshrined in the Constitution. This has been the message of the ACLU since 9/11.

  12. I’m enjoying the conversation all around, and I hope Tim is doing the same.

  13. Mr. Forsyth,
    It strikes me that you have not defended your position in light of the objective statistics detailed in previous comments. You have also asserted that the ACLU’s position since 9/11 has been to advocate for smart laws to keep us free and secure while safeguarding and upholding the Constitution. That is a noble goal, but it is a distortion of the ACLU’s history of defending known terrorists like 9/11 “mastermind” Khalid Sheikh Mohammed. An organization entrusted to keep the United States safe and secure would never willingly defend a non-citizen terrorist like KSM.

    An intriguing article regarding the no-fly list was shared by the Daily Record last week, and the ACLU was mentioned here as well: http://nydailyrecord.com/blog/2015/12/10/lawyers-process-to-contest-no-fly-list-is-still-inadequate/. Would you agree with the premise that the ACLU is asserting here? How does the ACLU view second amendment rights in light of the proposed ban in Connecticut for anyone on the no-fly list?

    These issues are complicated, but if we depend and rely on an orginialist interpretation of the Constitution and the Amendments, we will have a more secure nation while upholding our natural rights and civil liberties. I would point out that the Constitution applies to U.S. citizens only. The ACLU would disagree with this quaint notion.

  14. I submit the following evidence to you that DHS and the current vetting process is incompetent: https://www.youtube.com/watch?v=cHbHKCozVcs. Frighteningly so actually. And if it’s just this DHS official who was unprepared and incompetent, then she needs to be fired. Are we allowed to fire people in government who are not good at their job?

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