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The Departments of Justice and Homeland Security issued a report Tuesday that inspired a presidential tweet: “New report from DOJ & DHS shows that nearly 3 in 4 individuals convicted of terrorism-related charges are foreign-born. We have submitted to Congress a list of resources and reforms,” Trump said. “[W]e need to keep America safe, including moving away from a random chain migration and lottery system, to one that is merit-based.”
....we need to keep America safe, including moving away from a random chain migration and lottery system, to one that is merit-based. https://t.co/7PtoSFK1n2— Donald J. Trump (@realDonaldTrump) January 16, 2018
The report in question does not support the president’s tweet.
Indeed, read properly, it actually validates our criticisms of an earlier Trump statement to the same effect as tonight’s tweet—a statement one of us (Benjamin Wittes) described as a “lie before Congress about data kept by his Justice Department” and that the other two (Nora Ellingsen and Lisa Daniels) painstakingly combed through Justice Department data to evaluate.
After that evaluation—convinced that the statement was inaccurate as to both the Justice Department’s data and the role of foreign-born individuals in the United States’ terrorism problem—Wittes submitted a Freedom of Information Act request to the Justice Department for information on the data and on the president’s characterization of it. That request is currently the subject of active litigation.
Ironically, on the same day the Justice Department effectively confirmed that the Ellingsen-Daniels analysis—and the premise of the Wittes litigation—is correct in its essential point, President Trump repeated the lie that gave rise to both the analysis and the litigation. And he once again cited fictitious Justice Department data in support of that lie.
Allow us to explain.
Last February, President Trump claimed during an address to a joint session of Congress that “the vast majority” of individuals convicted of terrorism and terrorism-related offenses since Sept. 11, 2001, were foreign-born, and he attributed this claim to the Justice Department; “according to data provided by the Department of Justice, the vast majority of individuals convicted of terrorism and terrorism-related offenses since 9/11 came here from outside of our country,” he said.
We were suspicious of this claim, so Ellingsen and Daniels dug into the data. They discovered that the publicly available Justice Department data simply did not show that a majority of terrorist or terrorist-related crimes were committed by people who came from abroad. For one thing, this data set does not include domestic terrorism convictions. That is, it does not capture domestic terrorism subjects, who are more likely to be white and natural-born U.S. citizens. Leaving out those convictions is a big mistake. Last year, when Ellingsen and Daniels wrote about President Trump’s executive order, they found that 1,306 defendants had been convicted of domestic terrorism offenses in the U.S. since 1996. That’s more than twice the number of international terrorism convictions during the same period.
What’s more, the list included almost 100 foreign-born defendants who were extradited into the United States and therefore never would have been affected by U.S. immigration policy. That is, even excluding domestic terrorism cases, it was possible to support the president’s claim only if one counted as foreign-born terrorism suspects people the United States had actively imported in order to prosecute for terrorism or terrorism-related crimes.
While true that hundreds of defendants arrested in the U.S. in international terrorism cases—a slight majority—were born overseas, the vast majority of foreign-born defendants came from countries that were not covered by the travel-ban executive orders. And of the relatively small number of individuals from covered countries—43 in total—the clear majority come from only two countries (Somalia and Yemen).
Ellingsen and Daniels concluded:
what would the numbers look like if we excluded extradited subjects while including all of these domestic terrorists—the approach that seems to us the unbiased way to express the real rate at which foreign-born, as opposed to domestic-born, people are committing terrorist or terrorism-related crimes?
If we clean up the data to account for the issues described above, instead of accounting for between 63 and 71 percent of terrorism convictions, foreign-born persons would likely account for between only 18 and 21 percent of terrorism convictions.
Tuesday’s report from DOJ and DHS appears to have relied on the same data set—updated with recent convictions. The report is thus flawed in its methodology for a lot of the reasons Ellingsen and Daniels discussed earlier.
And despite all that, it still does not support President Trump’s speech or tweets.
Why not? Because it is, by its plain text, limited to “international terrorism-related charges”—not all terrorism. That is, the report corrects the most egregious error that lay beneath the president’s words in his speech. While it still excludes domestic terrorism cases (for no good reason), it doesn’t conflate international terrorism cases with all terrorism cases.
President Trump did so again Tuesday evening anyway.
What We Know About the Report’s Data
The Justice Department did not publish the data underlying its report but, instead, indicated that the department reviewed the cases of 549 individuals who were convicted of international terrorism-related charges in U.S. federal courts between Sept. 11, 2001, and Dec. 31, 2016. The National Security Division previously released the list of terrorism-related convictions between Sept. 11, 2001, and Dec. 31, 2015, in response to a FOIA request, but an updated list was not attached to this report. Note that the defendants on this list were not all convicted on material support or other terrorism charges per se. The pool is actually much larger and includes obstruction of justice, fraud, or immigration charges when there is a nexus to terrorism.
The new report actually adds little new information to the discussion. Regarding terrorism-related convictions, it provides only a couple of quick and sterile numbers: Of the 549 individuals who were convicted of international terrorism-related charges in U.S. federal courts, the report indicates that 402 of those individuals, or 73 percent, were foreign-born:
- 254 were not U.S. citizens;
- 148 were foreign-born, naturalized and received U.S. citizenship; and,
- 147 were U.S. citizens by birth.
That’s it. The report adds some color to those numbers by highlighting eight terrorism cases that it describes as “illustrative examples” of international terrorism convictions and provides short blurbs on each defendant. These defendants come from Sudan, Uzbekistan, India, Somalia, Syria, Yemen and Pakistan and immigrated to the U.S. as early as 1980. As the White House is careful to point out in its press release, three of those men entered the U.S. on the basis of family ties and extended-family chain migration. Two others entered through the visa lottery program.
In addition, the report indicates that the administration is broadening the scope of its inquiry to include tracking the citizenship status of the parents of 147 natural-born U.S. citizens on its list. A footnote in the report indicates that information is not available at the time of publication, but the White House noted, in response to the report’s issuance, that terrorist attacks have been carried out by children of foreign-born individuals, including the Orlando nightclub and San Bernardino shootings.
Because the report adds little by way of new information, the numbers it reports are broadly consistent with the earlier Ellingsen-Daniels analysis. The report’s data set is larger because more recent convictions were included—549 individuals compared to 455 individuals studied by Ellingsen and Daniels. Of those 549, 73 percent—or 402—were born abroad. Likewise, the Ellingsen-Daniels analysis showed that about 70 percent were born abroad. The trouble is that this top-line number is so misleading, for all the reasons the Ellingsen-Daniels analysis describes.
Indeed, the new report suffers from many of the same issues Ellingsen and Daniels covered in their April analysis (Part I, Part II, Part III). Specifically, it doesn’t address any of the following questions:
1. How many of these foreign-born individuals were extradited to the United States?
How many of the defendants committed attacks outside the United States and never tried to enter the United States but were brought here for trial? When Ellingsen and Daniels looked at the numbers last year, those brought to the U.S. via extradition or capture operations accounted for just over 30 percent of the foreign-born defendants. If that trend has held over the past couple of years—and without the data, we can’t be sure that it has—and one excludes these foreign-born defendants who never tried to immigrate to the U.S. and would not be affected by U.S. immigration policy, the share drops from 73 to 51 percent.
2. Are these foreign-born individuals from countries included in the travel ban?
The report doesn’t provide any clues as to country of origin for the 402 foreign-born defendants. Without that information, it isn’t clear whether the administration’s immigration policies would have an effect on terrorism activity. In fact, only three of the eight “illustrative examples” in the report came from countries included in the third iteration of the Trump administration’s travel ban: Iran, Libya, Syria, Yemen, Somalia, Chad, North Korea and Venezuela.
3. How did the foreign-born individuals enter the United States?
The report does not include information on any of the foreign-born defendants’ manner of entry into the U.S. In its press release, the White House highlighted that five of the eight “illustrative examples” in the report entered the U.S. on the basis of family ties and extended-family chain migration. Without that answer, we have no way of knowing if this data actually supports President Trump’s proposed immigration policies.
4. Were they radicalized abroad or in the United States?
The report notes that DHS and DOJ lack unclassified data regarding the percentage of individuals who were radicalized to violence after their entry into the U.S. The eight “illustrative examples” were charged anywhere from four to 26 years after entry, with the average period being 13 years.
Without the underlying data the report relies on, answers—or actual analysis—is impossible. To get some clarity, we considered international terrorism convictions in 2017. Relying on press releases from the National Security Division (an imperfect source, to be sure), we calculated that only 30 percent of defendants were foreign-born. One of those defendants was captured overseas in Libya and brought to the United States to stand trial. The rest, with the exception of one, were from countries not on President Trump’s list. That leaves one—Abdirahman Sheik Mohamud, a naturalized U.S. citizen from Somalia—of 24 convicted terrorism defendants in 2017 who were foreign-born and entered the U.S. from a listed country. That’s a little more than 4 percent.
Put simply, the report presents the Justice Department’s data in a deceptive light—and the data still don’t support the president’s words. That’s because those words aren’t true, and true data even deceptively presented can’t support them.
Our hope is that the ongoing FOIA litigation will make this clear. In this litigation, Wittes is seeking Justice Department documents “in preparation for or in reaction to the President’s address to a Joint Session of Congress on February 28, 2017, specifically those records referring to the President’s characterization of data provided by, or originating from, the Department of Justice.” Wittes also sought “All records validating or verifying the following quote from the President’s address to a Joint Session of Congress on February 28, 2017: ‘according to data provided by the Department of Justice, the vast majority of individuals convicted of terrorism and terrorism-related offense since 9/11 came here from outside of our country.’” And he sought documents “reflecting any data or information relating to the nationality or country of origin of individuals convicted of terrorism-related offenses (domestic or international) from 2001 until the date that a search is conducted for records responsive to this FOIA request.” He did not limit the request to international terrorism cases.