Immigration policies and the war on terrorism.

• Author: Sidebotham, Theresa L.

INTRODUCTION

Beatrice Okum, a Christian woman from Southern Sudan, fled her village during attacks by the Sudanese National Islamic Front. (1) She was separated from her family and has never heard from them again. (2) At age 15, she was forced into slavery in Kenya, where she spent fourteen years. (3) She finally escaped and fled to America. (4)

Upon arrival, she was handcuffed, shackled and taken to a detention facility. (5) There she "watch[ed] daily the hopelessness, the ache, the anguish on the faces of fellow inmates as they [we]re filled with fear and uncertainty, because we are subjected to a system where hope often dies before it is realized." (6) As she suffered flashbacks to her time in slavery, she said, "I am only fighting for freedom. I only want to be safe." (7)

This dream is shared by the rest of America, especially in these times. September 11, 2001 (8) marked the United States' full engagement in the War on Terrorism. That name is given from an American perspective. The terrorism that has been driving refugees to our shores for years now threatens Americans. U.S. interaction with these refugees will be an integral component of winning this war.

The threat that western secularism poses to Islamic societies may be no more intentional than was wiping out native Americans with measles, but for the survival of fundamentalism in the Muslim world, it is just as deadly. Secularism spreads via satellite dishes, computers, McDonalds, Coca-Cola, multinationals, and air travel. (9) The entertainment industry and globalization are its missionaries. Refugees are often its proponents.

This war began long ago, in a titanic clash of cultures. Secularism, on the one hand, promotes religious plurality and freedom for conscience and expression, but also allows sexual promiscuity, redefines the family, and disfavors state established religion. Opposing secularism is fundamentalist seventh century Islam, which features a rigid social structure withclearly defined moral values and state authority that is defined by particular beliefs about God and the after-life.

Islam is in crisis because its well-remembered glorious past does not match its present. As Bernard Lewis says, "Compared with its millennial rival, Christendom, the world of Islam had become poor, weak, and ignorant." (10) There is a profound debate within the Muslim world about the causes of decline in the Dar Al-Islam (rule of peace or Islam). 11) The fundamentalists say that what is needed is a restoration of authentic Islam. (12) The modernists see more of a problem in the retention of the old ways, including beliefs and practices that are not successful in the modern world, and they see fanaticism as stifling. (13)

Resurgent or fundamentalist Islam sees itself as the solution to the problem. (14) This type of Muslim fears the West, sees Western culture as corrupt, and believes "Western secularism, irreligiosity, and hence immorality" are "worse evils than the Western Christianity that produced them." (15) Secularism, although perceived by certain Christians as a threat to their religion as well, did in a sense spring out of Christian thought. The early years of persecution by imperial Rome made it clear that a separation of church and state was possible and later conflict between competing traditions eventually persuaded enough Christians that separation of church and state was necessary for peace to give birth to the modern secular state. (16) Christianity, now and historically, survives when it is a minority and persecuted religion. (17) This is not true of Islam, which is inexperienced at being a minority religion, and has a theological vision of a religious state. (18)

Qutb is probably the greatest of the fundamentalist Muslim thinkers. (19) In the Shade of the Koran is his greatest work and Osama bin Laden is his disciple. He hated the West for its schizophrenia in putting religion in one corner and the state in a different one. (20) He hated the split in the sacred and the secular and "wanted Muslims to appreciate that, if God is the only god, God must role over everything." (21)

Qutb hated America, not because America did not uphold its principles, but because of the very principles it holds, because it is a liberal society. (22) He and his followers truly feared an annihilation of Islam caused by liberal ideas. (23) Kemal Ataturk and his secular reforms in Turkey in 1924 were a despised example (24) and Osama bin Laden referred to that event in his fast video after 9/11 when he said, "Our Islamic nation has been tasting the shame for more [than] eighty years." (25) Qutb believed that "Islamism's truest enemy was not a military force but instead, an insidious penetration of cultural influences and ideas," which could exterminate Islam. (26)

Qutb's answer is that "Koranic truth, to be grasped properly, requires not just a serious experience of religious commitment, but of revolutionary action on Islam's behalf." (27) And so, although Qutb died in an Egyptian jail, his ideas spread and the killing started. (28) The Islamist movement was successful: civil war in Algeria, genocide in the Sudan of up to 2 million, rioting in Nigeria, the Palestinian Hamas, and revolution in Afghanistan. (29) Torture, repression, and death were the fruits which grew in the shade of the Koran as interpreted by the fundamentalists.Although extremist Islam is a splinter group within broader Islam, its use of violence in the form of terror has triggered the current War on Terrorism. An ideological clash like the Cold War, it must be fought with ideological weapons as well as military ones. Soviet style Communism eventually collapsed because of perceived internal moral inferiority. One of the main battlegrounds of the War on Terrorism is the minds of the Muslim majority. (30) Most Muslims are moderate in practice, but unwilling to oppose extremist groups for two reasons. One is their own fear of violent reprisal. The other is that extremist groups correctly articulate fundamentalist Islam; that is, Islam according to the literal meaning of the ancient writings. The modernists, who hold moderate and liberal strains of theological thought within Islam, interpret problematic texts figuratively or as limited in application to an ancient historical context. (31) For instance, Mahmud Muhammad Taha, founder of the Republican brothers in the Sudan, was hung in 1985. He had called for a "liberal, openly-debated, and humanistic revision of Shari'a," and had a vision of a democratic state. (32) He was executed for heresy on hearsay evidence. (33) In large part, world peace depends upon which interpretation of the religion captures the minds of the Muslim world.

This ideological war will be partly waged at America's own borders. The primary human intersection of America and the Muslim world is where people from Muslim countries (whether Muslim, Christian or other minority) immigrate to this country. American immigration policies and how they are applied, particularly to refugees, will affect the War on Terrorism. This paper discusses several aspects of international refugee law and U.S. immigration law with respect to refugees from Muslim countries. It makes recommendations related to the dual goals of respecting human rights and furthering the U.S. objectives in the War on Terror, with respect to both specific issues and overarching policy considerations.

1. HISTORY OF INTERNATIONAL AND U.S. REFUGEE LAW

   And if a stranger dwells with you in your land, you shall not mistreat him. The stranger who dwells among you shall be to you as one born among you, and you shall love him as yourself; for you were strangers in the land of Egypt ... (34) The United States has been a nation of immigrants and refugees from its beginnings. Its entire history has been marked and marred with the tension between the principles of human rights and the ingrained human tendency to dislike and persecute those outside one's own group. In 1783, George Washington said, "the bosom of America is open to receive not only the opulent and respectable stranger, but the oppressed and persecuted of all nations and religions...." (35) The League of Nations, which the United States helped to form in 1921 but ultimately did not join, established the position of High Commission for Refugees. (36) America's own immigration laws of 1924 were "designed to exclude Asians and restrict immigration from southern Europe" but had exemptions for people fleeing political and religious persecution. (37)

   During the 1930s, the United States sharply limited the number of refugees from Nazism, and in 1939, more than 900 Jewish refugees aboard the St. Louis were turned away within sight of Miami. (38) Hundreds who were refused entry died in the concentration camps. (39) During the 10 years of 1933 to 1943, the "refugee quota from European countries dominated by the Nazis was underfilled by more than 400,000 places." (40)

   The United States, ashamed of its failure towards the Jews, admitted 350,000 people displaced by World War II.. (41) It also led the effort to establish the United Nations and a concept of universally recognized human rights. (42) The General Assembly established the United Nations High Commission for Refugees (UNHCR). (43) America, during the following years, gave asylum to more than one million refugees, especially those fleeing Communism. (44)

   The concept of asylum, deriving from the Latin counterpart of the Greek "asylon," means freedom from seizure. (45) Sacred places have provided a refuge from ancient times. (46) The Universal Declaration of Human Rights, Article 14(1) says the individual has a right "to seek and to enjoy in other countries asylum from persecution." (47) Article 13(2) says that "everyone has the fight to leave any country, including his own." (48) However, this is only a fight to seek asylum, not to receive it, because "an individual has no right to asylum enforceable vis-a-vis the...