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Memo to the NSC: Check Out Some Databases at the State Department before Finalizing that New Executive Order

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Benjamin Wittes and Susan Hennessey write at Lawfare:

We received this morning an extraordinary message from a group of Foreign Service officers.

The message arrived in the wake of CNN’s report yesterday evening that President Trump has ordered DHS and DOJ to “help build the legal case for its temporary travel ban on individuals from seven countries,” and that some individuals “in the intelligence community disagree with the conclusion and are finding their work disparaged by their own department.” According to CNN:

“DHS and DOJ are working on an intelligence report that will demonstrate that the security threat for these seven countries is substantial and that these seven countries have all been exporters of terrorism into the United States,” [a] senior White House official told CNN. “The situation has gotten more dangerous in recent years, and more broadly, the refugee program has been a major incubator for terrorism.”

Keep this story in mind as you read the following inquiry from a Foreign Service officer who has done consular work abroad. Writing for a small group of three other colleagues, this individual begins by noting Lawfare’s prior “advice for civil servants about the ethics of service under the Trump administration” and goes on to seek out ethical advice about how to best handle certain specific concerns facing Foreign Service officers. Namely, this group is worried that the rollout of the executive order on immigration—both the initial order and the forthcoming substitution—is taking place without consideration of important, available data.

The author writes:

 This E.O. is being introduced without clear evidence demonstrating that visa applicants/visa holders from these seven countries pose a credible threat to our national security. This major policy change may be occurring without consideration of information that may be held under various agencies documenting terrorism-related activities or other unlawful actions by visa holders. This leads to moral and professional considerations: What obligation do we have to our colleagues in the DOJ and elsewhere in government to ensure that useful information is being consulted in the formulation of immigration policy? Can FSOs in visa adjudication positions appropriately implement this E.O. without knowing if its claims are based on sound evidence?

This email was triggered in part by a report I read today on CNN.com, which details the White House’s efforts to collect evidence that the seven countries named in the original E.O. have “all been exporters of terrorism into the United States.” We have questions about whether the administration analyzed records from the State Department or other agencies prior to forming this immigration policy. If those records have not been analyzed, that would tend to support the concerns voiced by intelligence officials in this article, who suggest the administration is seeking evidence to justify its policy, rather than crafting policy based on all available evidence. There is of course lots of sensitive data that is held within the federal government. But there is no need to even discuss that in order to illustrate the hypothesis that not all relevant government-held data is being consulted in the E.O. drafting process. There are plenty of databases the fact of which are matters of public record which represent at least the surface of what the Administration should be considering here.

Every day, FSOs rely on access to the Consular Consolidated Database (CCD) to inform their visa adjudications and screen visa applicants. A report by the Congressional Research Service (CRS) and testimony by the former head of the State Department’s Consular Affairs Bureau describe the CCD, which contains 143 million facial/biometric records and visa application records for foreign nationals who have sought entry into the United States. Consular officers compare new visa applications with information in the CCD to make a determination of an applicant’s eligibility for a visa (in tandem with other forms of vetting). CRS describes how the CCD “links with other databases to flag problems that may have an impact on the issuance of the visa,” and names the following linked databases:

  • IDENT and IAFIS, which compare fingerprints to DHS and FBI data, respectively.
  • A facial recognition database, which compares photos against records at the Terrorism Screening Center.
  • ADIS, which shows all DHS-documented entries/exits by a visa holder.
  • CLASS, which uses name-searching algorithms to compare applicants to derogatory information from other agencies, including DHS, the FBI, and the DEA, among others.
  • KFE, which compares an applicant’s aggregate data to the National Counterterrorism Center database.

The information in the CCD is classified and not available for recreational fishing. But the administration can presumably access databases like the CCD if it wants to do so in formulating policy.

Extrapolating from the CRS report, if a visa-bearing foreign national incurred a U.S.-based terrorism-related or criminal charge, the CCD would likely contain a record of this information. It may therefore be possible to determine the number of visa holders from the seven nations named in the E.O. who have (1) been flagged for terrorism-related activities, (2) who have been charged with crimes in the United States, (3) who have had their visas revoked for other adverse reasons, or (4) who have overstayed their visas, among other useful information. It should also be possible to compare the rates of these figures among visa-bearers from one country to the next. Already, this example highlights the existence of directly relevant, multi-year data that could be used to inform policy.

We don’t know if such information has been considered or analyzed by the administration; our point is that it exists within relatively easy reach.

Our experience processing visas—and among us we have conducted many thousands of visa interviews—leads us to suspect that data from the CCD would likely show, if consulted, that visa holders from these seven nations pose no credible threat to our country. But we could very well be wrong about that. And if a proper analysis revealed the opposite, the administration would at least have a more defensible policy in relation to the facts, and visa adjudicators would have a clearer rationale for action. Based on our current understanding of the drafting process, the new E.O. seems likely to target nationals of seven countries despite a large volume of information in the hands of the government that bears directly on the factual assumption behind the order.

With all this in mind, what obligations do FSOs have, if any, to highlight the existence of potentially relevant databases to civil servants and decisionmakers in other agencies? Any advice would be appreciated. Our views here are our own and not official State Department positions. To be clear, we are not taking a position on the policy, just seeking your advice about how to handle policy that appears to be being made without regard to known data.

There’s a lot to talk about with regard to the specific questions above, but it is worth pausing to note as an initial matter the mere fact that a group of junior Foreign Service officers is currently put in the position wherein they are even contemplating whether they have an obligation to reinforce the interagency process with respect to the Justice Department. This fact reflects the the failure so far of the actual interagency process to function—and the failure of the White House to conduct interagency consultation processes with even minimal integrity.

Let’s turn now to the author’s basic questions. First, “What obligation do we have to our colleagues in the DOJ and elsewhere in government to ensure that useful information is being consulted in the formulation of immigration policy?”

At a legal and formal level, this is an easy question: there is no obligation here of any kind.

At a formal level, anyway, it’s not the responsibility of individual Foreign Service officers to ensure that an administration takes available data into account before making policy decisions. It is the obligations of Justice Department attorneys—not Foreign Service officers—to ensure that they comply with their own professional and ethical obligations of candor to the tribunals to which they submit briefs and in which they stand up and make factual representations in defense of executive orders the President has issued.

To be more specific, the President and the National Security Council are responsible for making policy that is factually defensible, and to the extent they fail to do this, they expose themselves to severe litigation risk and public criticism. To the extent they choose, as they certainly should, to include the State Department in the interagency vetting of the new executive order, it is certainly someone’s job at the State Department to flag for them that the department has large volumes of data that bear on the factual integrity of the order the President is about to affix his name to. But whose responsibility that is depends on the structure the department has in place, if any, to examine its own equities in contributing to the interagency process. Individual Foreign Service officers have no ethical duty in that regard to the extent they are not part of that structure.

The Justice Department—and the individual attorneys who end up defending the order—certainly has a duty to be truthful with the courts, and specifically a duty not . . .

Continue reading.

Written by LeisureGuy

24 February 2017 at 7:49 pm

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