Republicans raise legitimate concerns about Syrian refugees, but the bill they have passed to address those concerns would just impose additional layers of bureaucracy on the refugee background investigation process



The Republicans Identify Security Weaknesses

The Chairman of the Homeland Security Committee, Representative Michael Thomas McCaul, Sr., (TX-10), is one of the key figures among the Republicans who are expressing concern about the possibility that terrorists from the Islamic State of Iraq and Syria (ISIS or ISIL)[1] will use our refugee program to come to the United States. His Committee began an investigation of this possibility in December 2014. The Committee has concluded, among other things, that the Administration’s proposal to admit more Syrian refugees would have a limited impact on alleviating the overall crisis but could have serious ramifications for U.S. homeland security. It released a report this month, entitled, “The Syrian Refugee Flows,”[2] which includes the following findings:

Islamist terrorists are determined to infiltrate refugee flows to enter the West and appear to have done so already in Europe. At least one of the terrorists responsible for the Paris attacks is suspected of having entered Europe through refugee flows. Syrian refugees have reported seeing suspected ISIS fighters in their midst, and an international terrorism research organization published a bulletin in September warning that there were a number of reported cases of ISIS infiltration of refugee routes.

The United States lacks the information needed to confidently screen refugees from the Syria conflict zone to identify possible terrorism connections. Top U.S. counterterrorism officials have been warning for months that the intelligence on the ground in Syria is insufficient. It is difficult both to confirm that Syrian asylum-seekers are who they claim to be and to determine whether they have ties to terrorist groups.

USCIS official, Matthew Emrich, has said that the government does not have access to any database in Syria that can be used to check the backgrounds of incoming refugees against criminal and terrorist records. Former FBI assistant director Tom Fuentes said, “Our human sources [in Syria] are minimal, and we don’t have a government we can partner with, and that’s a key thing.” According to National Counterterrorism Center Director Nicholas Rasmussen, “the intelligence picture we’ve had of this [Syrian] conflict zone isn’t what we’d like it to be... you can only review [data] against what you have.” FBI Director James Comey testified to the Homeland Security Committee in October that, “we can only query against that [data] which we have collected. So if someone has not made a ripple in the pond in Syria in a way that would get their identity or intentions reflected in our databases, we can query our databases until the cows come home, but nothing will show up because we have no record of that person...You can only query what you have collected.” FBI Assistant Director Michael Steinbach said, “the concern in Syria is that we don’t have the systems in places on the ground to collect the information... All of the data sets, the police, the intel services that normally you would go and seek that information [from], don’t exist.” Nevertheless, more than 90% of the Syrian refugee applications are approved.

Despite security enhancements to the vetting process, senior officials remain concerned about the risks and acknowledge the possibility of ISIS infiltration into U.S.-bound Syrian refugee populations. According to the Departments and agencies responsible for the security of the refugee vetting process, additional screening measures have been put in place to ensure that Syrian refugees do not have ties to terrorism. Nevertheless, after extensive briefings, Committee staff was not satisfied that these measures would meaningfully mitigate the risks associated with a lack of intelligence on the individuals being admitted. FBI Director James Comey explained that, “there is risk associated with bringing anybody in from the outside, but especially from a conflict zone like [Syria]...My concern there is that there are certain gaps I don’t want to talk about publicly in the data available to us.” DHS Secretary Jeh Johnson said, “It is true that we are not going to know a whole lot about the Syrians that come forth in this process.” He also explained that “organizations like ISIL might like to exploit” the Syrian refugee resettlement program into the United States. Retired General John Allen, the president’s recent envoy on the coalition to defeat ISIL urged similar caution. “We should be conscious of the potential that [ISIS] may attempt to embed agents within that [Syrian refugee] population.”

European governments face substantial obstacles to information sharing and are stymied by a lack of internal border checks in their efforts to keep track of terrorist suspects. Foreign officials in Western Europe who spoke with Committee staff said that someasylum-seekers had been identified as having potential terrorism ties. Authorities in refugee “transit” countries expressed the same concerns.The absence of common European police and intelligence services magnifies the challenges in locating and monitoring such potential extremists.An ISIS e-book published this year advises aspiring fighters about the ease of traveling undetected across the European continent. The now-deceased ISIS operative known as “Jihadi John” reportedly traveled freely through Europe despite being on a terrorist watch list. Similarly Hayat Boumeddiene, an associate of the terrorists who attacked Charlie Hebdo and a kosher market in Paris, was known to French police but avoided detection by leaving the country, driving to Spain, and boarding a flight for Turkey. “I had no difficulty getting here,” she bragged from Syria in an ISIS-published interview. The assailant behind an attempted terrorist attack in August on a high-speed train from Amsterdam to Paris—Ayoub El Khazzani—reportedly traveled easily between France, Belgium, Austria, and Germany before launching his attack, despite being on several European watch lists.

The report makes the following recommendations:

1. Suspend the admission of Syrian refugees until the nation’s leading intelligence and law enforcement agencies can certify that the refugee screening process is adequate to detect individuals with terrorist ties.

2. The Government Accountability Office (GAO) should initiate an end-to-end review of the refugee screening and vetting process, with a particular focus on the integrity of the current procedures for conducting national security checks on Syrian refugees.

3. The President should act immediately to implement the recommendations of the bipartisan Congressional Task Force on Combating Terrorist and Foreign Fighter Travel[3] to enhance America’s security posture and prevent terrorist infiltration into the United States.

4. The U.S. intelligence community and law enforcement should launch a concerted effort with our European partners to review all data already collected from refugees and migrants—and to screen it against counterterrorism and intelligence databases to find any possible extremist connections.

5. U.S. government departments and agencies should ramp up efforts to assist our European partners in building the capacity to conduct robust, consistent counterterrorism vetting of refugees and migrants.

6. U.S. government departments and agencies must work with European and Middle Eastern partners to close information-sharing gaps and improve intelligence and law enforcement cooperation related to Syrian refugees.

A bill full of sound and fury, signifying nothing.

On November 17, 2015, Chairman McCaul introduced a bill to establish supplemental certifications and background investigations that are to be completed prior to the admission of certain aliens as refugees, the “American Security Against Foreign Enemies Act of 2015, H.R. 4038.”[4] It passed on November 19, 2015, with a recorded vote of 289 ayes to 137 noes. The ayes included 47 democrats.[5]

H.R. 4038 does not address the difficulty investigators have in obtaining background information from Syria. In fact, it does not address any of the problems that the Republicans have expressed concern about in the Homeland Security Committee’s recent report, “The Syrian Refugee Flow.” Instead, without providing any guidance, it would require the FBI to ensure that each covered alien has received a thorough background investigation and certify to the DHS secretary and the Director of National Intelligence that the background investigation was sufficient to determine whether he/she is a threat to the security of the United States. It provides further that a covered alien cannot be admitted to the United States as a refugee without unanimous concurrence from the FBI director, the DHS Secretary, and the Director of National Intelligence that he/she is not a threat to the security of the United States.

What standard is the FBI director supposed to use to decide whether background investigations are sufficient to determine whether covered aliens are security threats? H.R. 4038 does not offer any guidance on what that standard should be. The Republicans have provided statements from key government officials who indicate that they are not satisfied with the current security investigations, but President Barack Obama would review their policy decisions on this standard. He would make the final decision on what the standard would be, and he has said repeatedly that he is satisfied with the sufficiency of the background investigations already being performed. He almost certainly would tell the FBI and the other agency heads to make the required certification if they are satisfied that the current background investigation process was performed, and I would expect future presidents to do the same thing. Without guidance on what the standard should be, they will exercise their own judgments, which is what they would do if there were no certification requirement. So what would this bill accomplish? The pertinent text from H.R. 4038 is quoted below.

If the Republicans want to reduce the possibility that ISIS terrorists will come here using our refugee program, they need to pass a bill that would improve our background investigation procedures or do something about the difficulty in obtaining information on terrorists in Syria. One possibility would be a bill to establish and fund special covert intelligence operations in Syria to gather information needed to do background checks on refugees from that country. The Democrats probably would support such a bill. Also, I want to emphasize the reality that the refugee process is an undesirable way for a terrorist to enter the United States. It is lengthy and full of uncertainties. Why would terrorists come here as refugees when they have alternatives that are faster and easier. For instance, most of the Paris terrorists were from Visa Waiver countries.[6] Consequently, they just needed their passports showing that they were from Visa Waiver countries and plane tickets to travel to and enter the United States. They easily could have conducted their terrorist attack here instead of in Paris.


(a) BACKGROUND INVESTIGATION. In addition to the screening conducted by the Secretary of Homeland Security, the Director of the Federal Bureau of Investigation shall take all actions necessary to ensure that each covered alien receives a thorough background investigation prior to admission as a refugee. A covered alien may not be admitted as a refugee until the Director of the Federal Bureau of Investigation certifies to the Secretary of Homeland Security and the Director of National Intelligence that each covered alien has received a background investigation that is sufficient to determine whether the covered alien is a threat to the security of the United States.

(b) CERTIFICATION BY UNANIMOUS CONCURRENCE. —A covered alien may only be admitted to the United States after the Secretary of Homeland Security, with the unanimous concurrence of the Director of the Federal Bureau of Investigation and the Director of National Intelligence, certifies to the appropriate Congressional Committees that the covered alien is not a threat to the security of the United States.

(c) INSPECTOR GENERAL REVIEW OF CERTIFICATIONS. —The Inspector General of the Department of Homeland Security shall conduct a risk-based review of all certifications made under subsection (b) each year and shall provide an annual report detailing the findings to the appropriate Congressional Committees.

(e) DEFINITIONS. —In this Act:

(1) COVERED ALIEN. The term ‘‘covered alien’’ means any alien applying for admission to the United States as a refugee who—

(A) Is a national or resident of Iraq or Syria;

(B) has no nationality and whose last habitual residence was in Iraq or Syria; or

(C) has been present in Iraq or Syria at any time on or after March 1, 2011.

[1] Lee Ferran and Rym Momtaz, “ISIS, Trail of Terror,” (February 23, 2015),

[2] Homeland Security Committee, “Syrian Refugee Flows,” Security Risks and Counterterrorism Challenges,

[3]“Final Report of the Task Force on Combatting Terrorist and Foreign Fighter Travel,” (September 2015),

[4] American Security Against Foreign Enemies Act of 2015, H.R. 4038 (November 17, 2015),

[5] H.R. 4038, Final Vote Results for Roll Call 643 (November 19, 2015),

[6] Ben Farmer, and Telegraph staff, “Who were the terrorists? Everything we know about the Isil attackers so far,” (November 20, 2015),; U.S. Customs and Border Protection, “Visa Waiver Program (VWP) Countries,” (November 13, 2015),


Reprinted with permission.

About The Author

Nolan Rappaport was an immigration counsel on the House Judiciary Committee. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and spent time in private practice as an immigration lawyer at Steptoe & Johnson. He is retired now, but he welcomes part time and temporary work.

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