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Refugee Crisis: Lets Take a Deep Breath and

Find the Principled Ground


Eric Vought
17 January 2016

Abstract
In the aftermath of the Paris Attacks, more than half of the states governors have stated that they will refuse to accept Syrian refugees. Some
people called for denying entry to the US of all Muslims after the Chattanooga, Tennessee shooting and the Paris attacks have only made that
segment more outspoken. Some people claim that the issue is moot because the states have no authority . Our own governor in Missouri made
an equivalent statement, that he would leave the matter to the State
Department.
This paper explores the issues involved in the refugee crisis, rejects extreme positions on both sides, and points the way toward a more principled
debate, providing links and citations as a basis for further discussion.

Contents
1 Preliminary Stuff
1.1 Legal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.2 Acknowledgements . . . . . . . . . . . . . . . . . . . . . . . . . .

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2 Principled Moderation Is NOT Indecisiveness

3 Proposals and Ideas Which Ought Be Rejected


3.1 Fear of Terrorism As Grounds For a Rejection of Our Principles .
3.2 Temptation To Misuse Emergency Measures . . . . . . . . . . . .
3.3 Our System of Ordered Liberty Requires Respect For Rights Even
In the Face of Danger . . . . . . . . . . . . . . . . . . . . . . . .
3.4 Isolationism, Rejection of Refugees Generally . . . . . . . . . . .
3.5 Deporting Muslims Already In Country . . . . . . . . . . . . . .
3.6 Rejection of All Muslims As a Matter of Policy . . . . . . . . . .
3.7 We Must Accept Refugees Out of Global Responsibility . . . . .
3.8 It Is Not the Governors Responsibility To Intervene . . . . . . .
3.9 The Refugees Are Being Vetted and Pose No Threat . . . . . . .

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version

2.2

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4 Things We Should Probably Do Anyway


4.1 (Mostly) Secure Our Borders . . . . . . . . . . . . . . . . . . .
4.2 Deportation of Existing Illegals Given Due Process Guarantees
4.3 Provide Resources To Correct the Immigration Court Backlogs
4.4 Increase Public Resilience In the Face of Terrorist Threats . . .

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5 Controversial Things We Need To Tackle Head-On


5.1 Sever the Relationship Between Refugees and Political Quotas
5.2 Reconsider Foreign Policy and Intervention Generally . . . . .
5.3 Develop and Enforce Rational and Effective Immigration Policy
5.4 Reconsider the War on Drugs . . . . . . . . . . . . . . . . . . .

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6 Conclusion

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References

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1.1

Preliminary Stuff
Legal

This paper is offered under the Creative Commons Attribution 4.0 (CC-BY-4.0)
license.
The opinions in this paper are those of the author. They are not the opinions
of any other organization. In particular, these opinions are not those of the
Lawrence County Sheriffs Auxiliary or of the Lawrence County Sheriffs Office.
Drafts of this article originally published on A Radish Saltant in November
and December of 2015. Its official home is on Scribd.

1.2

Acknowledgements

I want to particularly thank Mike Moon, Gary Greene, and Tom Martz for
posting interesting links on this issue to Facebook and keeping up a lively,
polite, and rational debate. Such qualities are extremely rare in todays political
landscape and I have used that discussion to test and feel out many of the
positions below. I do not presume to represent their opinions here and all
mistakes are my own.

Principled Moderation Is NOT Indecisiveness

In the aftermath of the Paris attacks[Mullen et al., 2015], more than half
of the states governors have stated that they will refuse to accept Syrian
refugees[Castillejo, 2015]. Some people called for denying entry to the US of
all Muslims after the Chattanooga, Tennessee shooting[Blake, 2015] and the
Paris attacks have only made that segment more outspoken. Some people claim
that the issue is moot because the states have no authority to prevent the federal

government from resettling refugees[e.g. Millhiser, 2015]. Our own governor in


Missouri made an equivalent statement, that he would leave the matter to the
State Department[News-Leader, 2015].
This paper explores the issues involved in the refugee crisis, rejects extreme
positions on both sides, and points the way toward a more principled debate,
providing links and citations as a basis for further discussion.
As is often the case, I find myself not on either specific side, but nor am
I waffling in indecision. Rather, I very decisively believe that there is a principled position which demands we reject both extremes to develop and enforce a
rational immigration policy which we have not had in some time. Specifically,
the current plan to import thousands of un-vetted refugees and spread them
around the country is foolhardy, and the counter-suggestion to bar all Muslims
or start rounding up foreigners is equally unacceptable.
I am going to begin my defense of this position by outlining the courses of
action I believe that we should reject out of hand and then discussing what is
left, hopefully pointing in the direction of a reasonable and principled debate on
our policies. I have little expectation that such a principled debate will appear
in mainstream politics, but in the end, I agree with the late Ronald Dworkin
that if we cannot first agree on basic principles, debate on specific policy is
pointless[2008, 18-19].

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3.1

Proposals and Ideas Which Ought Be Rejected


Fear of Terrorism As Grounds For a Rejection of Our
Principles

The first supposition I will tackle is a very dangerous one: the idea that fear
of the terrorism threat trumps all principled debate, requires curtailment of
freedoms, or requires us to set aside safeguards on public policy or government
action, such as the First Amendments freedoms of the Press, Speech, Association, and Religion or the right to personal privacy and self-determination
inherent in the 4th Amendment and which is a bedrock of our common law.
This is a common response to the idea of a "New Terrorism" which we have
never faced before and which makes our principles of self-government quaint,
outmoded, and perhaps even dangerous idiocy. This is an issue much larger
than the refugee crisis or of immigration generally. The Paris attacks have already been used by CIA director John Brennan to attempt to reverse recent
limitations on government surveillance. France has issued a state of emergency
which allows the government to search without probable cause, detain without
charge, decree curfews, and suppress demonstrations.
While obviously terrorism exists and is a legitimate threat to our security, the
idea that there is a "new" terrorism which changes the global landscape has been
capably and thoroughly debunked elsewhere by, for instance, the "mother of
modern terrorism research", Martha Crenshaw[2009] and by Frank Furedi[2007,
40-44]. In short, the proponents of "new terror" have an extremely hard time

defining what they even mean and, in the end, there is nothing notably "new"
about the "new terror" (whatever that is) which makes it any more of an existential threat than the "old terror". Many of the same things being recommended
as responses to the "new" threat are the same things which have either been
tried and failed in the past (McCarthyism and the Committee on Un-American
Activities, the Alien and Sedition Acts, abuse of surveillance powers and the
FBI against political opponents, etc) or already been rejected for good reason
(such as our Constitutional guarantees of due process). No new evidence has
been suggested to change that debate.
If anything, we have learned that crisis requires greater protection of our
most cherished principles. This is true for three reasons, first, that it is extremely
tempting to misuse emergency measures (and we have abused measures passed
out of fear throughout our history), second, respecting rights, even when it is
hard, is what our system of self-government demands of us, and three, violating
rights in the name of fear makes us less safe. I will tackle these issues roughly
in order but they are often tangled tightly together, a fact that our founders, in
setting up a system of limited government with separation of powers, recognized.
Madison, writing as Publius in the Federalist Papers, makes the argument in
Federalist #49 that separation of powers and checks-and-balances are necessary
because otherwise people will be ruled (badly) by their passions rather than by
their reason. Our system is designed to force deliberation and judgement in the
formation of policy precisely to protect us from ourselves.

3.2

Temptation To Misuse Emergency Measures

There is a significant temptation to misuse emergency measures to serve prejudice and political ends as well as to make "temporary" emergency measures
long-standing practice and precedent for future abuses. As Dempsey and Cole
document at length, the threat of terrorism has existed throughout our entire
history and we have frequently succumbed to the temptation to abuse measures
designed to combat it. Not only has this abuse violated our core principles, but
it has often made us less safe.
To the contrary, one of the lessons of the four years since September11, 2001, is that, even as we face new and more difficult challenges, the fundamental principles that ought to govern the response
of a democratic society to terrorism remain unchanged: we should
focus on perpetrators of crime and those planning violent activities,
avoid indulging in guilt by association and ethnic profiling, maintain procedures designed to identify the guilty and exonerate the
innocent, insist on legal limits on surveillance authority, bar political spying, apply checks and balances to government powers, and
respect basic human rights. Departing from these principles, as
the military and intelligence agencies have done, for example, in
abusing detainees at Abu Ghraib prison in Iraq, is not only wrong
but actually harms national security by fueling anti-American sen-

timent.[James X. Dempsey and David Cole, 2006, 14]

3.3

Our System of Ordered Liberty Requires Respect For


Rights Even In the Face of Danger

Although we have real enemies both at home and abroad, those who turn to
violence are always a minority within a minority. Violating our principles and
violating minorities in order to get at those few violent offenders makes the
criminals look sympathetic and reduces respect for law, perpetuating the problem. Cracking down on lawful speech/association and lawful protest removes
the escape-valve which prevents violence from being more common than it is.
Dworkin therefore argues that restoring respect for law is incompatible with a
more skeptical position on rights:
The institution of rights is therefore crucial, because it represents
the majoritys promise to the minority that their dignity and equality
will be respected. When the divisions among the groups are most
violent, then this gesture, if law is to work, must be most sincere.
... The government will not re-establish respect for law without
giving the law some claim to respect. It cannot do that if it neglects
the one feature that distinguishes law from ordered brutality. If the
government does not take rights seriously, then it does not take law
seriously, either.[Dworkin, 1980, 204-205]
Unjust policy proves our enemies right. The actions of McVeigh, Hasan, and
others, are only criminal in the context of being a society of law, and that law
requires respect for rights. We hear constantly "They hate us for our freedoms."
Supposing that this were true, what precisely do we accomplish by throwing
those freedoms away?
The Missouri Constitution echoes the Declaration of Independence when it
says:
...that all persons are created equal and are entitled to equal
rights and opportunity under the law; that to give security to these
things is the principal office of government, and that when government does not confer this security, it fails in its chief design.[2015,
Article I section 2]
There is no irreconcilable conflict between safety and securing rights: the "chief
design" of government is in fact to secure rights. When someone has demonstrated that they are a danger to society through actions (or attempted actions,
concrete threats, etc.), we have the standards of due process and criminal law to
handle that. Temporary wartime measures such as suspension of Habeas Corpus
(granted solely to Congress by the Constitution) are extremely dangerous tools
which must be strictly controlled. Under that approach, the government is not
prevented from investigating and prosecuting bona-fide violent threats:

...criminal intelligence can be fully compatible with the Constitution. The First Amendment does not require the FBI to be deaf
when someone advocates violence. The Constitution does not require the government to wait until a bomb goes off or even to wait
until a bomb factory is brought to its attentionit does, however,
require the FBI to focus its investigations on the interdiction of violence and other criminal conduct.[James X. Dempsey and David
Cole, 2006, 289-291]
Therefore, whatever approach we take to the threat of ISIS, to the Paris attacks,
and to the Syrian refugee crisis must retain respect for our principles of liberty
guaranteed by the Constitution or we have already lost.

3.4

Isolationism, Rejection of Refugees Generally

Foreigners do not have a right to immigrate to the US, per se: as a sovereign
nation, more or less by definition, we control our own borders. However, sensible
immigration and naturalization are part of the right of the populace at large
to freely associate. We have a right to invite others to this country to visit,
to hear them speak, to offer them shelter, and, when appropriate, to ask them
to be one of us. Our promise of an open door is one of the reasons the US is
often host to speakers, to academic and humanitarian conferences, and one of
the reasons we have many more citizens of the Soviet Union or of Nazi Germany
defect to us (often bringing valuable intelligence) than vice-versa. Being able
to hear foreign speakers and journalists from their own mouth is an invaluable
part of our 1st Amendment rights which is destroyed by a policy based on fear.
Success in science, medicine, and technology requires academic freedom and a
flow of ideas. It requires being able to sit down and mingle with people of
different ideas and backgrounds. Having an insensible, unjust, or prejudicial
policy toward visitors violates the rights of all citizens and leads toward making
the US an insignificant backwater.

3.5

Deporting Muslims Already In Country

This sounds rather similar to some of the most shameful things we have done as a
country, not the least of which include the internment of Japanese Americans in
World War II and the Supreme Courts failure to stop that policy in Korematsu
v United States, the persecution of the "LA 8" for twenty years, none of which
was ever found guilty of any crime, and the "Special Registration" of Arabs
after 9/11, of which most Americans are still unaware:
The federal government publicly professed to be opposed to ethnic profiling, but conducted the most extensive nationwide campaign
of ethnic profiling that this country has seen since World War II. It
called in 80,000 men for special registration with the Department
of Homeland Security, simply because they were foreign nationals

from Arab and Muslim countries. Registration consisted of fingerprinting, interviews, and photographs. Nearly 3,000 of those who
registered were detained, though none of the 80,000 was charged
with any terrorist crime. The FBI sought to interview 8,000 men,
again simply because they were young and had come from Arab and
Muslim countries. The government targeted its Absconder Apprehension Initiative not at all immigration absconders (persons with
final deportation orders who have not left the country) but at those
absconders who came from Arab and Muslim countries. And virtually all of the more than 5,000 foreign nationals who were subjected
to antiterrorism preventive detention after September 11 were Arab
or Muslim. Each of these initiatives was justified on the ground that
it was aimed at finding terrorists, yet not one of the thousands of individuals ensnared in these programs stands convicted of a terrorist
crime.
There is no question that the immediate aftermath of September 11 called for greater urgency than the ongoing war on drugs, or
that the immediate threat posed to our national security was greater.
But that does not answer whether ethnic profiling is a legal, much
less an effective, response. The argument that we cannot afford to
rely on something other than racial or ethnic proxies for suspicion,
after all, is precisely the rationale used to intern 110,000 persons of
Japanese ancestry during World War II. While subjecting individuals to closer inspection, interviews, registration, or even searches is
less extreme than detaining them, the rationalethat we should rely
on ethnic background as a proxy for suspicionis the same.[James
X. Dempsey and David Cole, 2006, 261-262]

3.6

Rejection of All Muslims As a Matter of Policy

The idea of a religious test for entry into the country is anathema to what we
are (or claim to be). Many people came to this country to get away from the
sectarian conflicts of Europe: my own family on my mothers side can be traced
to Albigensian heretics who fled first the Inquisition in Germany and then the
Iron Curtain in Romania. Our founders rejected religious tests for office for
this reason of principle as well as the practical one: who would you trust to
set the standard and not misuse it? What would keep 50.01% of the country
from simply outlawing the other 49.99%? This kind of bloody see-saw between
religious factions, between Catholics and Protestants, was quite familiar to the
founders.
It is also not at all unheard of for an enemy to pretend to be something
they are not in order to try to play on sympathies. Barring Muslims would not
prevent someone from simply claiming to be a Christian refugee. As Olliver
Ellsworth, one of the drafters of the Constitution noted, religious tests would
readily be bypassed by the unscrupulous:

If they exclude any persons, it will be honest men, men of principle, who will rather suffer an injury, than act contrary to the dictates
of their consciences... A test-law is the parent of hypocrisy, and the
offspring of error and the spirit of persecution. Legislatures have no
right to set up an inquisition, and examine into the private opinions of men.[Paul Leicester Ford, ed. Essays on the Constitution of
the United States, Published during Its Discussion by the People,
17871788. Brooklyn: Historical Printing Club, 1892. as quoted in
Kurland and Lerner, 1987, Volume 4, Article 6, Clause 3, Document
14]
As for the similar idea that we simply reject anyone from Syria (regardless of
religion), it should be again pointed out that we have often gotten extraordinary rejects from our enemies, including, for instance, Albert Einstein, who
renounced his German citizenship in 1933 and became an American. My own
ancestors came here as refugees. Sometimes we have an explicit national duty
to accept immigrants from among our enemies, such as when they are no longer
welcome at home because of aid to us, when people have been intelligence assets for the United States or those who served as local translators for us in Iraq
and Afghanistan. A blanket ban on such immigration would be foolish and
dangerous to national security.

3.7

We Must Accept Refugees Out of Global Responsibility

At the same time, the idea that we have a national duty to accept all refugees
(or just the refugees from the political conflict du jour ) is equally ridiculous.
The argument that we must accept (all) refugees out of Christian charity, for
instance, is a confusion of personal and national responsibility. As a Christian,
I feel a personal obligation to help the needy and I attempt to fulfill that obligation. It is important to support humanitarian and relief organizations and
there are many worthy ones helping people in this and other conflicts. But that
is a very different from the question of the duty of this country as a State to
take in all refugees anywhere willy-nilly (if that were even physically possible).
The responsibility of the state qua state is to security and justice here, not there
(some good discussion of this issue in Pastor Kevins Blog). The federal government simply does not have a duty to "Christian charity". As some people
have rightly pointed out, we do have a national duty to the welfare of our own
veterans who are languishing in our own streets.
Even if we were required to shape US policy according to Christian charity,
that is not an open and shut case, either. Saint Thomas Aquinas in the Summa
Theologica, considered one of the great works of Christian moral philosophy,
states that despite our duty to love everyone, our neighbors and those to whom
we owe a special relationship do have first claim on our outward affection or
charity[Aquinas, 2008, Question 26 Article 6]. Thus, it is not always loving to
endanger our neighbors in favor of charity to someone from afar, neither is it
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loving to reject the stranger: our duties must be considered carefully as a whole.

3.8

It Is Not the Governors Responsibility To Intervene

The federal government, Think Progress, and others have argued that this is not
a matter which the states have any authority over. Some of the governors, such
as our own Jay Nixon, have even made this argument. They wish to defer to
federal authority on the matter and let that be that. Others contest the modern
assumption that the federal government has plenary power over immigration as
this is not actually stated in the Constitution and the police power, including
power over health and safety, has rested with the states since the beginning of
our country.
Federal law providing for resettlement of refugees also requires the federal
agency to consult with the state and local agencies before placement and requires
that the federal agency shall take into account the recommendations of the
state.1
The responsibility of the state governor is to the people of the state which
elected him or her to that office. Regardless of the legal questions of who has
final authority over matters of immigration policy, it cannot be denied that the
state governors can and should have an interest in a matter which affects the
security and integrity of its sovereign territory. The federal government was
created and has a constitutional duty to secure the integrity of the states and
when it appears to be failing in this duty, it is a matter of grave national concern.
Jay Nixons response identifies no care for the responsibilities of his office, or
the legitimate concerns of his constituents, and, in examination, says absolutely
nothing of any note. It is a statement utterly devoid of meaning or principle.
The federal government, by contrast, in responding to the concerns of the
state governors, carries a great deal of meaning. In the 17 November conference
call where state governments requested notification on where refugees were being
settled and that their own law enforcement be given access to threat assessments,
the White House Chief of Staff responded bluntly that they saw no reason to
make any changes to the process. Californias Democratic Governor Jerry Brown
says on the call that the government must change its process in light of Paris.
I disagree.
The federal governments attitude toward the states in this matter is completely unacceptable whether Paris happened or not; it is just that the Paris
attack has called attention to the matter. Regardless of who has ultimate legal
authority over immigration, not notifying states, coordinating with state/local
law enforcement, and sharing information is an act of disrespect and utter contempt toward the sovereignty of the state and local jurisdictions and toward our
federal (meaning "of equals") system. That much has nothing whatever to do
with the Paris attacks.
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USC Sec 1522.

3.9

The Refugees Are Being Vetted and Pose No Threat

Immediately after the Paris Attacks, FBI officials stated that the US is less
vulnerable than France to attacks similar to Paris. Because the United States
is separated by an ocean, we have had far fewer Syrian foreign fighters return
to the US who might be able to set up that level of coordination. ISIS threats
so far have been individuals sympathetic to ISIS but not coordinated from afar
(domestic radicalization)CNS[2014][See also Vidino and Hughes, 2015, ix]. This
logic, while not indicating that we are invulnerable to such attacks, makes sense
and is consistent with what we know of both global and domestic ISIS activity
in recent years[Jenkins, 2015]. The obvious corollary, however, is that if we
throw away the advantage of the large pond separating us from the conflict, we
will become vulnerable to such attacks.
Although the White House claims that refugees are being adequately vetted,
the FBI denies that this is realistically possible. We simply have no data on
the activities of many potential refugees at all because most of them have never
come to the attention of the United States for any reason. Many of the refugees,
as they are fleeing a civil war, may have only the clothes on their backs. For
very good reason, they may not carry documents to help us vet them, and it is
highly unlikely that Assads regime will help us in those efforts.
What little documentation we are likely to be given we would be foolish to
trust. During the conflict, ISIS has managed to capture an intact Syrian passport facility, including authentic blank paper and equipment to use it. A British
reporter managed to order a perfect Syrian passport through the black market
identical to that carried by one of the Paris suicide-bombers using the identity of
an actual Syrian refugee who was processed through Greece. Fraudulent Syrian
passports are also readily available on the German black market for people to
use to apply for asylum. Fraudulent documents made with actual Syrian official
paper and equipment are clearly impossible to verify in the chaos of a civil war.
We therefore may not depend even on the identity of asylum seekers, let alone
their background or intentions.
Seth Jones recent testimony to the House Judiciary Committee, Subcommittee on Immigration and Border Security underscores the unique security
risks posed by Syrian refugees and why they are different from that posed by
other refugees:
But risks associated with refugees from Syria may be higher today for several reasons. Syria and neighboring Iraq have the highest numbers of foreign fighters on any modern jihadist battlefield,
and there has already been an exodus of some fighters to the West.
Daish [an alternative term for ISIS] has also been active in some
Syrian refugee camps in the Middle East. There is some evidence
that at least one of the Paris terrorists who killed more than 120 people may have come in the current wave of Syrian war refugees. More
than 4 million refugees have come to Europe since Syrian government forces and rebels started fighting. Finally, the U.S. intelligence
communitys understanding of extremists in Syria is not as good as
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in many other jihadist battlefields, such as Iraq and Afghanistan, because of more limited intelligence collection capabilities.[Jones, 2015]
Seth Jones is a counterterrorism expert who is well known in the academic
community for co-authoring a ground-breaking and frequently-cited study with
Libicki entitled "How Terrorist Groups End". In his testimony, Jones provides
details on previous threats by refugees, including the screening error which
allowed two known terrorists to be resettled in Bowling Green, Kentucky due to
a screening error where they proceeded to attempt to buy Stinger missiles. Jones
then details the Syrian refugee vetting process and his suggestions for correcting
its shortfalls. Those suggestions and their consequences will be discussed later
in this paper, but the key take-away here is that the necessary improvements
will slow down the process, which the administration in its threat to veto the
bill passed in the US House has already stated is politically unacceptable.
We always take a risk in accepting any refugee. That risk is simply a fact
of life. The specific threat of ISIS and the sheer impossibility of vetting many
refugees to any degree, however, makes the risk of bulk relocation to dispersed
locations within the mainland United States foolhardy. Perhaps the risk can be
mitigated, but the idea that there is no risk, or that the concerns of state/local
law enforcement are imaginary is utterly without merit.

Things We Should Probably Do Anyway

No matter what the solution to the refugee crisis and no matter the aftermath
of the Paris attacks, there are actions we should be taking regardless which
would help reduce the potential threat from ISIS or any other foreign enemy
attempting to infiltrate the United States. The Paris attacks did not create any
of these necessities, but they should focus attention on their urgency.

4.1

(Mostly) Secure Our Borders

Our borders, particularly our southern one, are a security problem anyway.
ISIS may try to exploit that situation, as the five Syrians with fake passports
who were apprehended in Honduras were attempting to do, but that threat is
not unique to ISIS. We do not need to turn the United States into a fortress,
precisely; the border does not have to be 100% secure. Some illicit traffic can
even be a safety valve by allowing persecuted individuals to cross in either
direction. We have to make illicit passage difficult, however, or other attempts
at security, at airports, for instance, are useless. France temporarily closed its
borders after the attacks in Paris; we have no ability to do so at all.

4.2

Deportation of Existing Illegals Given Due Process


Guarantees

People who are here in violation of our laws, by definition, do not belong here.
We need to stop avoiding that issue. In the end, there is no way to successfully
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deport some 11 million illegal aliens because in some cases, things are so screwed
up that it will be impossible to determine who belongs and who does not. We do
not need 100% success, we just need to make serious headway and then declare
victory. This does not really require a pathway to citizenship, either. Once we
get the problem under control, especially in dealing with illegal aliens who have
also committed other crimes, the remaining illegals will cease being aliens in a
generation.
Rounding up and deporting absolutely all of the illegals would require a
nation-wide door-to-door search, raise all kinds of Constitutional problems,
cause injustice to people who look foreign, violate the rights of all citizens
by instituting a "papers please" environment which would then be a mask for
corruption, tyranny, and abuse. It would likely end in a bloodbath. We can do
better than that.
But right now, an ISIS member using a fake document to masquerade as
a refugee can simply disappear once in country. They have access to a ready
black market in alternate identity documents, businesses who regularly employ
illegals and are unlikely to ask questions, and even sanctuary cities who do not
cooperate with what federal enforcement there is. If our borders are secure,
we make headway at dealing with the illegals already here along with the large
corporations who are complicit in maintaining an illegal work force, the security
situation will become more manageable.
However, if we are to do this while complying with our legal framework of
rights, people accused of being here illegally (among them those who may be
acting in good faith trying to comply with our utterly Byzantine, conflicting,
and incomprehensible immigration laws and procedures), must have due process.
If they are to have due process, we must solve the immigration court backlog.

4.3

Provide Resources To Correct the Immigration Court


Backlogs

One of the aspects missing from the debate over deportation of existing illegals
is the fact that there is, as of September 2015, a three-year wait for an immigration hearing and a backlog of nearly half-a-million casesTRAC [2015]. Those
accused must sometimes spend that time in jail, months or years incarcerated,
even if they are eventually cleared of any wrongdoing. That is not acceptable,
and clearly would not be made better by adding more cases to the system.
Correcting this backlog will require more judges, more courts, and more
funding. As a strong fiscal conservative, I am deeply suspicious of government
requests to throw more money at a problem, but if we are serious about dealing
with illegal aliens already in-country (and we should be), then having a fair,
timely, and just process to adjudicate the issue is not optional.

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4.4

Increase Public Resilience In the Face of Terrorist


Threats

The Academic Consensus Definition of Terrorism (ACDT 2011) has as a critical


component that terrorism is an indirect tactic. The casualties of the attack are
not the intended victims. Rather, the victims are the people who are terrorized
by the violence and who, it is hoped, will act in favor of the terrorists political
aims:
Terrorism refers on the one hand to a doctrine about the presumed effectiveness of a special form or tactic of fear-generating,
coercive political violence...
7. The direct victims are not the ultimate target (as in a classical
assassination, where victim and target coincide) but serve as message
generators, more or less unwittingly helped by the news values of
the mass media, to reach various audiences and conflict parties that
identify either with the victims plight or the terrorists professed
cause.[Schmid, 2011, 86-87]
Simply put, if a community is resilient in the face of crisis, they are less susceptible to being terrorized, and the political utility of terrorism is reduced.
According to Furedi[2007, 180-181], this resilience requires that the public have
an active role in its own protection and recovery, and that it feel competent in
its own ability to deal with a crisis. Furedi warns that the typical policy maker
approach to deciding what resilience means and imposing it on the community
through policy is counterproductive: resilience is an innate quality of community itself, not something which can be tacked on the outside. In order to feel
competent in its own ability, community must actively own its capacity to
respond and must participate directly in its own response and recovery. When
the public is active in this capacity, they are less likely to panic in the crisis,
more likely to heal, and much less likely to be coerced by violence.
The professionalization of emergency response, in particular, hurts this process by furthering a culture of helplessness. This overall concept and the role
of local volunteer organizations in it is discussed in greater depth in Vought
[2015b]. For our purposes, it should be noted that a community which is resilient in this way can more readily accept refugees. Given a strong community
support structure, refugees can be assimilated and become a resource more efficiently at the same time that the threats which individual refugees may pose
are more readily dealt with and the culture is less likely to become unstable
or be successfully coerced by violence from terrorists who do infiltrate. Unfortunately, the majority of our communities are not resilient in this particular
fashion and that needs to improve not only because of the threat of terrorism
but of disasters and calamities of all kinds.

13

Enlist Immigrant Communities To Help Us Identify Threats


The difficulty of identifying the threats within immigrant communities is extremely difficult to solve from the outside. Such communities are often close
knit, there are cultural barriers to interacting with its members, and, as they
often flee violence, oppression, and corruption, they are naturally distrustful of
authority. The best and most accurate resource for identifying potential threats,
however, is not high-tech surveillance or databases, it is the membership of the
community itself. The immigrants must be directly enlisted in intelligencegathering, not from the perspective of selling-each other out, but of mutual
protection and safety within their new community. This requires the building
of trust, not suspicion.
Unfortunately, as Human Rights Watch points out in its report "Illusion of
Justice":
Meanwhile, the law enforcement practices described in this report
have alienated the very communities the government relies on most
to report possible terrorist threats and diverted resources from other,
more effective ways, of responding to the threat of terrorism. Its
proclaimed success in convicting alleged terrorist conspirators has
come with serious and unnecessary costs to the rights of many of
those prosecuted and convicted, to their families and communities,
to the public, and to the rule of law. Ultimately, these costs threaten
to undermine the goal of preventing and effectively prosecuting and
sanctioning terrorism crimes.Human Rights Watch [2014]
Many of the actions we have taken after 9-11 and activities which were routine
before 9-11 but of which most citizens were unaware prior to the publicity associated with the PATRIOT acts, have made it much harder to gather intelligence
in this way and therefore made the threat of a small number of terrorists hidden
in a stream of refugees considerably harder to mitigate. These actions include
the special registration and indefinite detentions, the use of paid or otherwise
self-interested informants, and violations of civil liberties mentioned above, as
well as vigilante violence against Muslims and people who simply "look Muslim", including the mass-murder of Sikhs, who are not Muslim, in Milwaukee
post-9-11. The result has been to make many of these communities close ranks
and be less forthcoming with what they know.
As Dempsey and Cole note in their discussion of cultural or ethnic profiling,
it both violates civil liberties and makes a poor law enforcement tool:
Profiling undermines effective law enforcement in still another
way. It is virtually certain to alienate members of the targeted communities. Studies of policing have shown that it is far more effective
to work with communities than against them. Where a community
trusts law enforcement, people are more likely to obey the law, and
more likely to cooperate with the police in identifying and bringing
to justice wrongdoers in their midst...[James X. Dempsey and David
Cole, 2006, 263]
14

Cynthia Lees observations on the general dysfunction of our search and seizure
doctrine and the resulting reduction of civic participation by minority groups
also apply to intelligence efforts in the terrorism context[2012]. The enlistment
of immigrant communities in threat identification is intimately connected to the
preservation of civil rights in the face of violent attacks on our society. In order
to keep ourselves safe from the threats which will inevitably hide within these
communities, we must gain the trust and respect of these very communities.
That effort will require political will, time, effort, and patience, none of which
are in ready supply within the current refugee crisis, but if it is not done, the
long term terror threat will persist and likely grow.

5
5.1

Controversial Things We Need To Tackle HeadOn


Sever the Relationship Between Refugees and Political Quotas

On one side in this debate we have those arguing that the current screening
process is inadequate; on the other is the argument that the screening process
is already long and complex. The fact is that both are true. Understanding
how this can be and potential solutions requires understanding of the vetting
process and the realities of the war in Syria.
Seth Jones testimony[2015, 7] cites a US News article by Theresa Welsh[2015]
to explain the existing process and why it is so long, including the fact it involves interaction between multiple agencies/departments, the turn around time
for tuberculosis tests (8 weeks), personal interviews, etc. Welsh explains that
the current process is so long that it is unlikely to be able to process even the
initial influx of 10,000 refugees in the time allotted:
Doris Meissner, former commissioner of the U.S. Immigration
and Naturalization Service, says the U.S. is out of practice when
it comes to responding to a massive refugee crisis. The last time
it dealt with a large number of resettlements was in the early 90s,
when the country took in refugees arriving by boat from both Cuba
and Haiti.
But much has changed since then.
...
Meissner said the U.S. is a key part of the global response, and
that resettlement is an important part of the traditionally strong
American reaction to global crises. She said the government must
look at ways to speed up the vetting process if it is going to successfully resettle 10,000 Syrians.[Welsh, 2015]
It is well worth reading the entirety of Welshs piece and the context of Meissners statements. Seth Jones then builds on her statement in his testimony

15

given the reality that the screening process is already too slow and necessary
increases in screening will likely slow it still further:
The U.S. decision in September to accept 10,000 Syrians during
the next fiscal year could introduce pressure on the federal government to move more quickly in processing applications. 13 If new
security checks are introduced, it may be necessary to examine how
time can be saved at another point in the process, without sacrificing
the quality of the reviews.[Jones, 2015, 7]
Jones, in particular, cites changes made after the Bowling Green incident where
known terrorists were allowed into the country as refugees because biometric
data gathered by one agency had not yet been procesessed into the system and
made available to the agency doing the screening. Changes to the process have
been made since that incident, but, echoing the concerns of the FBI, he questions
whether the screening and data collection are yet adequate and outlines his
suggestions for changes[Jones, 2015, 7-8]. So, then we have the situation where:
1. the current screening process is already too long and we need to look for
opportunities to streamline it[Welsh, 2015];
2. the screening process still needs improvement, which improvements will
probably lengthen the process still furtherJones [2015];
3. the underlying data gathering is likely still inadequate, even after the
post-Bowling Green changes [Jones, 2015, and the FBI], some of it due to
inescapable conditions of the Syrian civil war;
4. we have made a political commitment to accept a rapidly increasing number of refugees, the largest we have attempted in many decades[Welsh,
2015];
This sets up a dangerous conflict of interest between the needs of security to
accept only the refugees who can be properly vetted (understanding that we can
never be 100% certain) at no more than the rate at which they can move through
that process (which is understood to be too slow even without more/better
screening), and a purely arbitrary political commitment. When push comes to
shove and the vetting process cannot move refugees through quickly enough,
which concerns will give way, politics or security? Anyone with experience in
large organizations knows the answer to that question.
Anyone with experience in security knows that one cannot simultaneously
increase the thoroughness of vetting and commit to increases in throughput as
equal priorities. One must be given clear priority over the other. When both are
given an equal do-or-die organizational priority, the result is at best dysfunction
and at worst significant security lapses. A vetting process, by definition, must
be free to reject applicants who do not meet the established criteria, even if that
results in an inability to meet quotas. Otherwise, the overwhelming temptation
will be to short-circuit even the current, inadequate, screening process in order
to meet the promised output.
16

Applying this common sense approach to vetting refugees by divorcing security from quotas would result in the following organizational priorities:
1. make the suggested improvements in the vetting process to improve the
accuracy of screening;
2. attempt to streamline the process, particularly the interagency interaction
to remove unnecessary bottlenecks and improve the number of simultaneous applications which can be processed, consistent with priority #1;
3. accept refugees at no more than the rate at which they can reasonably
work through this pipeline with no politically motivated quota;
4. assume that because of the inadequacy in screening data, we will miss ISIS
terorrotists who have no record in our databases which can be reliably tied
to them; based on an estimate of this risk, cap the number of refugees at
some number where our domestic law enforcement (federal, state, local)
can reliably follow up even if this number ends up below the output of
priority #3;

5.2

Reconsider Foreign Policy and Intervention Generally

Our first response to the Paris attacks followed that of France: drop more bombs.
Did we suddenly have more identified targets than we did the day before? Did
we have a better plan than we did the day before? Or was this more a matter
of the Administration trying to look busy because the public was upset?
For those of us in the public who were cheered the new bombing raids and
the pictures of exploding buildings on the nightly news, did we stop to ask who
was being bombed? Whether these were the people responsible for the attacks
in Paris? How many women and children (or men trying to keep their head
down and survive) were blown up along with whoever was the target? Did we
wonder about the pictures of broken and charred bodies of relatives and loved
ones, of women screaming while holding their dead children, doubtless being
circulated over there? Did we stop to wonder how many relatives of those killed
would vow vengeance on the United States? Did we do the mental calculus of
how many new refugees might be created ? Did we consider the psychological our
pilots carry back to base which will (or should ) become our burden when they
return to civilian life?
Or did we just think Good. Those people deserve it, or Wow. Look at
the fireball!?
It should be noted that I am hardly a pacifist. I have no objection to the
United States, or any country, defending itself from unjust attack. I am a
gun owner and a law enforcement volunteer who will defend my family and
community at need. But when it is necessary to use force, it is rather critical
that it be used justly and effectively, not to shore up flagging support in the
polls and not just because we are angry and need a convenient target. Are we
properly identifying those targets? Are we minimizing collateral damage (recall

17

that ISIS is occupying territory by force)? Are our strikes part of a coherent plan
with an end strategy which leads, somewhere, to a potential end to hostilities?
to a point where the stream of refugees might be able to return home? Are we
considering the downstream cost of paying our debt to the soldiers who deliver
violence on our behalf to whom we promise benefits, care, and support?
Having worked in the DOD, I have, one thing taken with another, a great
store of faith in the competence of our military, as I would in a sharp, welltempered sword. We should not expect miracles from them, as even a good
sword will break when misused, but for the most part, when we have expected
miracles, they have delivered. What I have considerably less faith in is the
leadership, particularly the civilian leadership, the contractors and defense industrial complex that sees dollar signs every time we drop a bomb, and in the
voting public who is often complicit.
I recall a letter I received from one of my US senators which announced
a great victory for the Missouri taxpayer because she was able to prevent the
cancellation of a defense project in this state a project which the military
itself professed to no longer want. She extolled the job-creating virtues and
the federal dollars it would continue to bring into the state. Somewhere along
the way, she forgot that Missouri taxpayers also pay federal taxes, but, more
importantly, should we decide how to arm and equip our soldiers based on the
federal money it brings into our state rather than by how much safer it makes
Missourians? I pick on this specific senator, a prominent Democrat, not because
it is an unusual example (I remember many such examples from my time in the
Pentagon) but to emphasize that it is a pervaisve, bipartisan problem.
So why discuss any of this here? What does this have to do with Syrian
refugees? It matters to the current discussion in two ways, the first is the single
best argument for those in favor of bringing in as many refugees as we can take:
our policies directly lead to the creation of ISIS and to the current civil war
in Syria. I reject above that the United States has a duty to Christian charity
to accept refugees. It is much harder to reject the idea that we need to accept
refugees as a nation because we owe them as a nation. Oddly enough, though
this would be a good argument, it is seldom heard. At the very least, our overall
foreign policy matters in a second way: only by having a frank public discussion
of what lead to this refugee crisis do we have a hope of planning a response
which does not simply make things much worse.
An analysis of the policies which lead to the current Syrian situation would
require a paper in itself, but I will present here a brief overview, along with
sources for further exploration. The bottom line is that we intentionally expanded opposition Assads regime in Syria[Ahmed, 2015], a regime, while far
from ideal, was largely secular and more or less tolerant of other faiths (e.g. Syrian Christians). This was necessarily so because Assad himself was a minority
in Syria (an Alawite Shia) and could not keep power without paying lip-service
to secularism. For the same reason, the opposition we supported was largely
sectarian opposition (Sunni extremists).
Our deposition of Saddam Hussein in Iraq (another more-or-less secular dictator who tolerated Christians) also created a power vacuum. The insurgency
18

against the United States occupation made the populace highly sympathetic
to Al Qaeda whcih was then working across the Syria/Iraq border. In a short
time, Al Qaeda In Iraq (AQI) dominated the insurgency and initiated a series
of purges across Iraq, with out military making little headway at surpressing
it. It was local opposition to the extreme sectarian policies of AQI, renamed
the Islamic State of Iraq (IS or ISI) which lead the Sheiks and Mullahs to turn
against it in the Anbar Awakening. The Awakening, for the first time, gave us
the local support and critical intelligence to make headway against AQI[Jones
and Libicki, 2008, 91-97]:
Aided by the recoil of sheikhs, Sheikh Sattar organized 25 of
the 31 tribes in al Anbar to join the Anbar Salvation Council in
September 2006. Through the awakening movement, the sheikhs set
themselves up as public enemies of AQI. Their primary strategy was
to persuade young tribesmen to join the police forces of Ramadi and
other al Anbar towns to help take back the province in return for protection by U.S. military forces. It took several months for the alliance
to build its critical strength. As promised, the sheikhs persuaded
tribal members to join the local police in large numbers.[Jones and
Libicki, 2008, 91]
When the troop surge and the Anbar Salvation Council pushed AQI/IS out
of Iraw, it quite naturally retreated to Syria and joined forces with the Daesh
insurgency against Assad, becoming the Islamic State of Iraq and Syria or ISIS.
It should be noted that the existence of Al Qaeda itself along with the modern
popularity of Wahhabi Islam is in some sense our fault. The extreme Wahhabi
sect has existed for centuries, but did not gain much traction until the war
in Afghanistan. Under US support, the Mujaheddin (literally, jihadist) fought
against the Soviet occupation. Of particular importance was the Wahhabi cleric,
Sheik Abdullah Azzam:
Azzam was a key figure in the recruitment efforts and organisation of foreign fighters. In 1984, he set up the Maktab al-Khadamat
(MAK, the Afghan Services) that was responsible for coordinating
all the money, men and weapons in the struggle against the Soviets. Teaming up with his pupil Osama Bin Laden, Azzam mobilised
thousands of foreign fighters that flocked to the conflict during the
1980s. [van Zuijdewijn and Bakker, 2014, pp 4]
Osama bin Ladin, initially trained and funded by us, went on to be the leading
proponent of extremist Islam.
Terrorism researcher Robert Pape, author of Dying To Win: The Strategic
Logic of Suicide Terrorism, presents a theory of how our military presence in
the Middle East has affected the use of suicide terrorism in the modern age. His
ideas are discussed in Vought [2015a], introducing two of Papes video lectures
and a selection of readings on suicide terrorism research.
At each stage, our interventions create new monsters and the necessity for
later interventions. At each stage, we pay in blood and treasure to stop what
19

we ourselves unleashed. Would some of these things have happened without our
intervention? It is difficult to tell: there is evil in the world and certainly not
all of it is our fault, but by taking action, we also assume responsibility which
might not otherwise be ours. It behooves us to take the best action that we
can (which is sometimes nothing). Certainly, going forward, we must heed the
lessons and missteps of the past.

5.3

Develop and Enforce Rational and Effective Immigration Policy

One of the reasons our policy on refugees makes no sense is that our immigration
policy as a whole makes no sense. For the most part, few people on any side of
the debate, whether for more or less immigration, believe that our policy does
make sense. Whether generally for more immigration or less immigration, the
staggering number of illegal immigrants underlines the fact that our policy is
not working: if for less immigration, why make it harder for people to immigrate
legally if they can walk in or overstay a visa? If for more immigration, what sense
does it make to have a pile of expensive, complex, and obtuse laws which are
not being followed anyway? If a (legal) immigrant, how is it fair that you waited
in line and worked all the way through our awful system but someone else does
not have to? How do we maintain national security or keep out people who are
threats (if we could even agree on who is threatening) if we have no idea who is
coming or going in the first place? How does it make sense to push for improved
security in the refugee process if an agent of ISIS can apparently provide a false
address on a K-1 visa application and not get caught in a homeland security
background check?[Serrano and Bennett, 2015]
Our current policy is a patchwork of changes on top of the Immigration and
Naturalization Act of 1965 which was formulated during both the Cold War
and the Civil Rights Movement, showing conflicted influences of both. Over
the intervening time, it has been changed both to expand immigration in order to meet corporate demands for guest workers and to updated Cold War-era
guilt-by-association, secret evidence, and general paranoia about immigrants
to the fears of the day (in, for instance, the 1996 AEDPA and the PATRIOT
Acts[James X. Dempsey and David Cole, 2006, 236]). It has been changed to
make deportation easier, to reduce judicial review of deportations and to prevent those at risk of deportation from actually leaving the country. Deportation
figures are at historic highs and yet, changes in the way that illegal border crossings are handled, begun under the Bush Administration and expanded under
Obama, make those figures confusing and misleading. The immigration court
backlogs mentioned above (section 4.3) leave cases in limbo for years. Our security checks for entry into the country are at once overly-complex, cumbersome,
chronically backlogged, and ineffective.
For the most part, neither the public, people attempting to legally immigrate, nor even the courts seem to have a solid grasp on how immigration law is
actually supposed to work or when the courts are supposed to review proceedings. A bewildering array of categories, quotas, agencies, and lists keep even
20

the most intrepid citizen from understanding what current policy actually is,
let alone how to fix it. As George Borjas, himself a refugee from Cuba and now
a US citizen, puts it:
Part of the problem is that the immigration debate, like most
debates over social policy, frames the issues in black and white: one
must be in favor either of wide-open borders or of highly restrictive immigration policies. Because the political lines are so clearly
delineated, many of the participants in the policy debate quickly associate new evidence or new arguments with one of the two opposing
camps. However, as with most things in life, there is a large range
of policy options in varying shades of gray.
... [I]mmigration imparts both benefits and costs on the United
States. As a result, the evidence does not support either of the two
extremes in the immigration debate.[Borjas, 2011, 10]
Given that immigration policy is an issue that all soveriegn nations have to face,
that some degree of immigration is desirable, but that the potential supply of
immigrants is staggeringly large, the first step in the debate must be at least
basic agreement on the goals of immigration policy:
And there, in a nutshell, is what the immigration debate is all
about. How many people should the United States admit? And,
since there are many more persons who will want to migrate to the
United States than the country is willing to admit, which of the visa
applicants should the country accept?[Borjas, 2011, 25]
This brings us back to the discussion of Dworkin at the beginning of this piece:
if we cannot agree on basic principles, the goals of US immigration policy itself,
more detailed policy debate is pointless. This includes the realization that the
goals which we will likely not agree on need to be set aside in favor of those
which we do potentially share, for which we can come up with clear, fair, and
enforceable policies.
One such goal I would submit is that a primary goal of immigration policy
should be to promote the entry of new citizens who will partake of all the benefits
of citizens in much the same way that a guarantee of our founding was that all
new states would enter the union on the same footing as the original Thirteen
Colonies (we were not to become a colonial power in the way that Britain was to
the Americas). By that same principle, we should not be creating a permanent
underclass of people slavery-lite to do our menial labor or who simply save
large corporations over the cost of hiring native workers while having little power
to negotiate the terms of their contracts. Nor should we have large numbers
of illegal aliens in a semi-permanent legal limbo.2 In the case of refugees, all
things being equal, we should not be bringing people into the country who we
then have to keep in a state of suspicion, under surveillance and threat of later
2 The danger to immigrants of Foucalts bio-power, or Agambens concept of bare life, a
legal limbo making someone effectively less-than-human, discussed in Arnold [2011, 66].

21

deportation, with a lesser and unjust standard of review; it is better in that sense
to promise hospitality and protection to fewer than to promise and potentially
renege.

5.4

Reconsider the War on Drugs

One cannot discuss the problems with immigration policy and terrorist infiltration without also giving a nod to the difficulties caused by the War On Drugs.
Not only does the drug trade drive illegal border traffic in the obvious way and
does the smuggling aparatus and international narcotics gang traffic provide
ready-made illicit conduits which potential terrorists can exploit to enter the
country, but the collateral damage of the Drug War drives substantial amounts
of illegal immigration in a refugee stream from South America[Planas, 2015,
Gray, 2015]. Once again, we face the conundrum that attempting to correct
security problems with legal refugee resettlement makes little sense in the face
of a flow of illegal refugees and organized criminal gangs driven by our own
policies.

Conclusion

The debate over Syrian refugees has become corrosive and divisive with both
sides dehumanizing their opponents. There are legitimate security concerns
raised by refugees, the states have a clear duty and interest in examining federal
refugee policy, and the current screening process is problematic. At the same
time, the more reactionary anti-refugee rhetoric is unjustified and refugee policy
is just one part of much larger policy issues we would often prefer to ignore.
It would be tempting to bow to pressure to reduce or eliminate refugee resettlement programs without fixing these underlying issues of a broken screening
process, a broken immigration policy, and the collateral damage of interventionist foreign policies, tempting, but quite dangerous. At some point, there is no
way to avoid confronting the fundamental matters of principle that divide us,
of which this one issue is merely a recent symptom. Dramatic reductions in
immigration in response to security concerns would therefore only be useful as
a tool to force the larger issue of overall policy reform.
In the narrower realm of refugee screening, real security concerns must be
divorced from the political ego involved in committing to specific quotas. In this
paper, problems in the screening process are discussed and more rational priorities for addressing them are presented. The states must be directly involved in
the resettlement process. This necessarily includes directly addressing concerns
of state and local law enforcement, not as obnoxious supplicants begging for
data from federal agencies, but as officials discharging a legal and moral duty
to the safety of their own citizens.

22

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