By Steve Weinstein
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The U.S. government's definition of "terrorism" has always been broad. In the Immigration Act of 1990, terrorists were considered to be anyone who used a "firearm, explosive, or dangerous device" to "endanger the safety of one or more individuals or to cause substantial damage to property."
After the 9/11 attacks, Congress passed the Patriot Act and made the definition more complex, dividing terrorist groups into three categories. Tier I and Tier II are well-known terrorist groups, such as the FARC of Columbia, Al Qaeda, or the Taliban. The list of groups is available on a public State Department list.
Then, there are the Tier III "undesignated groups," whose names are not listed anywhere. As Tier III is defined, any "two or more individuals . . . whether organized or not" can be considered a terrorist group, and Homeland Security has the right to make decisions about the groups in an ad hoc fashion. (Hughes, the Human Rights First attorney, points out that the definition is so loose that a victim of domestic violence who used a weapon against her attacker could qualify as a terrorist.) As Karmakar and Rasul discovered in February, some DHS officers at service centers in Nebraska and Texas decided that the Bengali Mukti and the mujahideen were Tier III terrorist groups.
The Tier III clause is only one part of the Patriot Act that has ended up causing major problems for people fleeing persecution: The law also says that anyone who provided a type of "material support" to a terrorist organization could be labeled a terrorist and be denied admission to the country on those grounds. This includes people who were forced to give support, such as a nurse from Colombia who was denied asylum because she had been kidnapped by paramilitary FARC guerillas who had forced her, at gunpoint, to give medical care to the wounded. In 2005, Congress passed the REAL ID Act, which made the Patriot Act even stricter: A person can now be deported for giving that kind of support.
After protests from human rights groups, Homeland Security decided last December that it would make an exception for people who were extorted by Tier I groups like the FARC (but not the Taliban or Al Qaeda, for some reason). But that leaves out cases like the one of a Sri Lankan man who was kidnapped by the Tamil Tigers and forced to pay a ransom, and who is now tied up in court on the grounds that he gave material support to a known terrorist organization.
"If this were really a national security concern, I would understand," Nezer says. "But there's not one person who thinks that any of these people are a threat. Not even [Homeland Security]. If they did, they would be charging and arresting them."
Advocates say the piecemeal approach—by which people are charged with terrorism and then, when they protest it, are told that the government will go back and look to see if a mistake was made—is bogging down the entire immigration system. They say the obsession with definitions is having real human consequences: Individuals being persecuted by their governments are barred from entering the country as refugees. And people like Karmakar and Rasul, who haven't seen family members in years, cannot bring them to the U.S. or visit them without hurdles. For the first time since moving to America, Karmakar says he felt his rights were being threatened in a way that reminded him of what happened to him back in Bangladesh.
Just over a year ago, a high-level DHS official, Igor Timofeyev, promised Congress that the problems with refugees and asylees would be resolved "in three weeks."
"I honestly thought this would take a couple months to iron out," explains Nezer, who started advocating against the broadened definitions of terrorism four years ago. "But it's gotten more and more absurd, and the number of groups just keeps growing."
For Ali Riaz, a Bangladeshi expert at Illinois State University, Karmakar's so-called mistake is going to have serious consequences for foreign policy. "If part of the U.S. government is describing what happened in 1971 as a terrorist act, it is going to be a major issue in Bangladesh," he says. "It's practically questioning the very existence of Bangladesh and compromising the relationship with the third-largest Muslim country in the world. If Georgians fought back from Russia, would the U.S. government call it a terrorist act? Because the same thing happened 30 years ago in Bangladesh. If Homeland Security thinks there is no repercussion for this outside the United States, they are living in a fool's paradise."
Responding to protests and congressional testimony from human rights organizations, in December 2007, Congress voted to give Homeland Security secretary Michael Chertoff the authority to make exceptions for some groups that were getting caught in the categories. The exceptions were arbitrary: The Hmong and some anti-Castro fighters were included in the July waiver; mujahideen were not. Homeland Security reports that it has issued waivers to around 7,500 people, many of whom only got the waivers after they had already been denied green cards or asylum because of their supposed terrorist activity.