A 9/11 Commission Counsel's perspective
By Janice Kephart, partner, Identity Strategy Partners, LLP and former 9/11 Commission counsel
As President Trump’s ‘Travel Ban’ Executive Order gains more notoriety and the 9th Circuit has now essentially banned the travel ban, it is important that our national discourse regain a level of objectivity about whether the Order is worth fixing, and if so, how. I believe that while the ‘travel ban’ section of the Order is completely unnecessary and discriminatory, the Order’s underlying goal to prevent terrorist entry by properly establishing identity, retains value.
First, the President gets right that identity is critical to national and border security, and assuring that an identity is not affiliated with terrorism is equally important. But let’s be clear: as a nation we can never be 100 percent sure we have determined who intends to do us harm, and who does not. The question really is: How do we minimize the risk of terrorist entry? NOT How do we stop terrorist entry? The former question is about accepting the real risk of terrorist entry, while the second is a fantasy that terrorist entry can be 100 percent stopped.
The President’s use of the 9/11 Commission’s phrase ‘assuring that people are who they say they are,’ is useful, but unfortunately misconstrued. The underlying justification for the temporary ‘travel ban’ can be summarized as follows: You may be a terrorist if of Muslim religion from one of these listed countries. Therefore, until we know you are not a terrorist, you are not admitted. What is wrong with this? It is fully impractical to place a burden of proving I am not a terrorist, or, I do not have X identity on a foreign national or even the United States government. Why? Identity is a positive attribute. A person can establish who they are through reasonable means of biometrics (physical attributes) affiliated with biographic information derived most commonly from an ID such as a passport, but it is impossible for them to assure who they are not, i.e. a terrorist.
Recommendation: The President’s Order should be laser-focused on continued improvement of objective, across-the-board, standard vetting processes that are designed to facilitate legitimate travel while stopping those that pose a risk.
Second, the President is right to be concerned about terrorist entry into the United States. The 9/11 Commission correctly concluded that border security is essential to national security. However, the President’s temporary travel ban focusing on specific countries may have been relevant 20 years ago when terrorist activity was more defined and confined, but is just not justified when terrorist activity is often internet-grown, defuse and as worldwide as it is today.
It is relevant that according to the FBI’s Terrorist Screening Center a few years ago, approximately 550,000 individuals on the terrorist watch list are foreign-born. About 20,000 of these are U.S. residents, 10,000 U.S. citizens, and yes, 98 percent are foreign-born. What that means is that while the threat is worldwide, it is also internal, and is not limited to seven countries. However, that does not mean that xenophobia is valid. Instead, the President would be apt to review all that the federal government has done, carefully and often painfully, to find terrorists and prevent their entry into the United States without relying on profiling. Intelligence reasonably associated with identity continues to be the correct approach.
Recommendation: The President’s Order should be laser-focused on continued improvement of objective, across-the-board, standard vetting processes that are designed to facilitate legitimate travel while stopping those that pose a risk. These enhancements include:
- merging biometrics into watchlisting and sharing such lists appropriately amongst the military, FBI, intelligence, homeland security communities and appropriate allies
- biometric exit implementation at U.S. ports of entry
- appropriate interviews for visas and admissions
- requiring all visa waiver countries – and eventually the world – to adopt U.S. biometric pre-clearance, pre-boarding admissions procedures
- international support for counterfeit-resistant travel documents, including passports, and increased support for INTERPOL’s lost and stolen passport database.