President Donald Trump’s new executive order on foreign nationals entering the U.S. says “more than 300″ refugees in the United States “are currently the subjects of counterterrorism investigations.” Attorney General Jeff Sessions repeated that figure in his remarks on the new order. But it is a statistic without any context.
The White House and Department of Justice have declined to provide the total number of “counterterrorism investigations” underway or how it defines the term “counterterrorism investigation.” That’s important context, because FBI guidelines allow “three levels of investigation to address a potential threat to national security,” beginning with “assessments” — which do not require “any particular factual predication,” as explained in a 2014 inspectors general report.
“In recent years, the F.B.I. has averaged 10,000 assessments annually, and 7,000 to 10,000 preliminary or full investigations involving international terrorism,” the New York Times reported last year.
On the same day that Trump signed the executive order, Reuters reported, “The FBI is investigating 300 people who were admitted into the United States as refugees as part of 1,000 counterterrorism investigations involving Islamic State or individuals inspired by the militant group, congressional sources told Reuters on Monday, citing senior administration officials.” But a federal law enforcement official told us that report is not accurate and advised us to “avoid the 300 out of 1,000 construct.”
The law enforcement official, who asked to remain anonymous, said in FBI parlance “investigations,” as used in the executive order, means “full investigations.” The official would not say how many full investigations involving terrorism are underway, but referred us to the Times article that said the FBI averages “7,000 to 10,000 preliminary or full investigations” a year.
If so, then that would mean that refugees are not 30 percent of “counterterrorism investigations” — as reported by Reuters and repeated by some news outlets — but rather somewhere between 3 percent and 4.3 percent. But we don’t know for sure, because the administration won’t say.
What we do know is that few terrorism investigations result in prosecutions. We also know that no refugees were involved in the Sept. 11, 2001, terrorist attacks, and no refugees have been responsible for any terrorism-related deaths in the U.S. since 9/11, as we have written before.
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Refugees a Threat to National Security?
We began asking the Trump administration for information about “counterterrorism investigations” involving refugees on March 6, when the president signed a new executive order on “foreign terrorist entry.” The new order revokes and replaces an earlier version — executive order 13769 — that was blocked by the federal courts.
The new order imposes a 90-day travel ban on the citizens of six predominately Muslim countries (Syria, Iran, Sudan, Libya, Somalia and Yemen) who do not have valid visas, and suspends the U.S. Refugee Admissions Program for 120 days. The order said the delay is needed to improve screening and vetting procedures.
Refugees undergo the “highest degree” of screening of any traveler to the U.S., according to the U.S. Citizenship and Immigration Services. That screening process takes 18 months to two years and includes fingerprinting and checking records against databases maintained by the National Counterterrorism Center, the Pentagon, the FBI and Interpol, as we have previously written.
The order justifies the revised restrictions on entry into the U.S. by declaring that foreign-born nationals, including refugees, “have proved to be threats to our national security.”
As we also have reported, the U.S. has accepted more than 3 million refugees since 1975, but few of them attempted terrorist attacks on U.S. soil. A 2016 report by the libertarian Cato Institute called “Terrorism and Immigration” identified 154 foreign-born people, including 20 refugees, who were convicted of carrying out or attempting to carry out a terrorist attack in the U.S. over a 40-year period, from 1975 to 2015.
Three refugees were responsible for three terrorism-related deaths — all in the 1970s, according to the Cato report.
Separately, Kathleen Newland of the Migration Policy Institute came to a similar conclusion in 2015, when she looked at the number of terrorism-related prosecutions involving refugees since the terrorist attacks on Sept. 11, 2001. “No one in the U.S. has been killed in a terrorist incident by a resettled refugee” since 9/11, Newland told us in an email for this story.
Unlike the first executive order, the new order included new language about current “counterterrorism investigations” involving refugees.
Executive Order, March 6: The Attorney General has reported to me that more than 300 persons who entered the United States as refugees are currently the subjects of counterterrorism investigations by the Federal Bureau of Investigation.
Sessions, the attorney general, made a similar statement in remarks on the day the new executive order was signed.
Sessions, March 6: We also know that people seeking to support or commit terrorist attacks here will try to enter through our refugee program. In fact, today more than 300 people who came here as refugees are under FBI investigation for potential terrorism-related activities.
We repeatedly sent emails to the White House, the Justice Department and the FBI, seeking information on the current investigations. Specifically, we asked if the “more than 300″ refugees are under full investigation, preliminary investigation, or are they at the assessment level. The White House referred us to the Justice Department, which told us it would provide “no additional information.”
Context is important. Knowing that there are “more than 300” refugees under investigation without any other information reminds us of the late comedian George Carlin’s gag about sportscasters who referred to games in progress as “partial scores.” Carlin would joke, “Here’s a partial score: Notre Dame 6.”
FBI Terror Investigations
After the 9/11 attacks that killed nearly 3,000 people, the FBI adopted guidelines that greatly expanded its investigative powers.
In December 2008, then-Attorney General Mike Mukasey changed the FBI’s Domestic Investigations and Operations Guide that gave “the FBI more leeway to engage in proactive investigative work” without the level of evidence required by preliminary or full investigations, according to an April 2013 report, “The Federal Bureau of Investigation and Terrorism Investigations,” by the nonpartisan Congressional Research Service.
CRS, April 24, 2013: The most prominent changes in the Mukasey Guidelines and the DIOG concern “assessments.” Agents and analysts may now use assessments outside of the more traditional preliminary and full investigations, which require some level of factual predication. Preliminary investigations can be opened with “any ‘allegation or information’ indicative of possible criminal activity or threats to the national security.” Opening a full investigation requires an “‘articulable factual basis’ of possible criminal or national threat activity.” On the other hand, opening an assessment does not require particular factual predication.
The investigative methods used during the assessment stage “are generally those of relatively low intrusiveness, such as obtaining publicly available information, checking government records, and requesting information from members of the public,” according to the FBI. CRS says that includes “public surveillance and the use of confidential informants to penetrate conspiracies.”
As a result of the so-called Mukasey guidelines, the number of people under FBI surveillance sharply increased. CRS said that the FBI in a three-month period from December 2008 to March 2009 initiated 11,667 assessments, although only 427 of them advanced to preliminary or full investigations. “Officials noted that about one-third of the assessments resulted from vague tips,” CRS said.
Over a two-year period, from March 25, 2009, to March 31, 2011, the FBI “opened 42,888 assessments of people or groups to see whether they were terrorists or spies,” according to government data obtained by the New York Times under a FOIA request.
“Information gathered by agents during those assessments had led to 1,986 preliminary or full investigations,” the Times wrote in that Aug. 23, 2011, story.
We don’t know if the “counterterrorism investigations” cited in the executive order are assessments, preliminary or full investigations. As we said earlier, the federal law enforcement official we contacted for this story told us they refer to full investigations and referred us to last year’s New York Times article that said the FBI in recent years has averaged “7,000 to 10,000 preliminary or full investigations” a year. That Times story also said, “Most investigations never end in prosecution.”
“It’s silly for them to cite investigations, most of which will never lead to convictions or even charges being filed, to support a public policy like this,” Alex Nowrasteh, author of the Cato report on terrorism and immigration, told us an email.
David Bier, an immigration policy analyst at Cato, wrote in a March 8 blog that the U.S. averaged 27 terrorism convictions per year in the five years from 2010 to 2014, which was based on a database of terrorism and terrorism-related convictions compiled by the DOJ’s National Security Division. Citing the New York Times article from last year for the number of FBI preliminary and full investigations, Bier estimated that about 0.3 percent of all terrorism investigations result in convictions.
“Taking the middle of the 7,000 to 10,000 range for the number of new FBI investigations (8,500) would mean that only about 0.3 percent of all terrorism investigations end in terrorism convictions,” Bier wrote.
Of course, there are incidents of refugees who have attempted terrorist attacks in the U.S., just as there have been incidents involving U.S. citizens, “green-card” holders and visa holders. Trump’s executive order mentions two terrorism cases involving refugees — including the conviction of Mohamed Osman Mohamud, “a native of Somalia who had been brought to the United States as a child refugee.”
As we have written before, Mohamud was charged in an undercover sting operation with attempting to set off a fake bomb supplied by undercover FBI agents at a Christmas tree-lighting ceremony in Portland. He was sentenced in October 2014 to 30 years in prison.
Mohamud was only 5 years old when he entered the U.S., so it is not clear if anyone that young would have been denied entry under more “extreme vetting,” as Trump has advocated.
The executive order also referenced the convictions of Iraqi refugees Waad Ramadan Alwan and Mohanad Shareef Hammadi. The U.S. was unaware when Alwan entered the country in 2009 that he was involved in planting and detonating IEDs against U.S. troops in Iraq. After learning of Alwan’s criminal past, the FBI set up a sting operation that led to the arrest of Alwan and Hammadi on multiple terrorism charges related to a conspiracy to kill Americans overseas. They were sentenced in January 2013, as we have written before.
The case involving the two Iraqi refugees — which Kellyanne Conway, Trump’s counselor, mistakenly referred to as the “Bowling Green massacre” — did not result in any deaths. But it did lead to a tightening of the vetting process at the time.
It is understandable that the Trump administration has sought to justify the need for its new executive order. After all, the 9th Circuit Court of Appeals blocked the first order in part because the administration failed to “present evidence to explain the need for the Executive Order.” For this reason, perhaps, the new order cited ongoing “counterterrorism investigations” of more than 300 refugees. But the administration renders that number meaningless by failing to provide any other information.
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