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    Southeast Asia
     Jun 30, 2007
US terror laws stymie SE Asia's refugees
By Clifford McCoy

MAE SOT, Thailand - Soon after the September 11, 2001, terror attacks, the United States strictly redefined what it considers terrorist acts and what constitutes a foreign terrorist organization. Provisions in the 2001 USA Patriot Act and the subsequent 2005 Real ID Act have caused a dramatic decline in the total number of refugees admitted to the US over the past six years.

Nowhere is that pinch being felt more acutely than along the Thailand-Myanmar border, where more than 100,000 refugees have fled fierce fighting inside Myanmar and now languish in 

squalid camps in Thailand. US Department of Homeland Security lawyers are interviewing ethnic-Karen refugees from the massive Mae La refugee camp north of Mae Sot for possible resettlement to the United States.

The US has indicated that it could resettle as many as 15,000 Karen refugees this year, but many of the applicants who previously would have met Washington's resettlement criteria are now considered ineligible because of their previous membership in the Karen National Union (KNU), an armed insurgent group that the US apparently considers a foreign terrorist organization.

A US Presidential Determination authorized 70,000 refugee admissions for 2006, but only 41,260 refugees arrived at the end of the fiscal year on September 30, 2006. The US State Department was authorized to admit an additional 70,000 refugees for 2007, and funding has been earmarked for 60,000 refugees and asylum seekers. Yet government insiders estimate that the actual resettlement numbers will be even lower than last year.

That's because the Patriot Act and the Real ID Act have greatly expanded the United States' previous definitions of "terrorist activity" and a "terrorist organization". The State Department defines a foreign terrorist organization as a foreign organization that is so designated by the secretary of state in accordance with Section 219 of the Immigration and Naturalization Act (INA).

This act states that a terrorist organization must be a foreign organization, it must engage in terrorist activity as defined in the INA or as defined in the Foreign Relations Authorization Act of fiscal years 1988 and 1989, or retain the capability and intent to engage in terrorist activity or terrorism. And the organization's terrorist activity or terrorism must threaten the security of US nationals or the national security of the United States.

Under the Patriot Act, a "terrorist activity" now more broadly includes the use, threat, attempt or conspiracy to "use any dangerous device (other than for mere personal gain) with the intent to endanger, directly or indirectly, the safety of one or more individuals, or to cause substantial damage to property. The Real ID Act, meanwhile, further expands that definition vaguely to include behavior endorsing or espousing terrorist activity.

That's a significant expansion to the previous legislation, whereby an organization could only be considered a terrorist organization if it had been officially designated by the secretary of state in consultation with the secretary of the Treasury and the attorney general. Now, the Patriot Act allows Department of Homeland Security adjudicators and immigration judges independently to determine whether an organization should be considered a foreign terrorist organization.

Moreover, an organization can now also be deemed a "non-designated" terrorist organization if it consists of more than one person who performs any one of the previously listed terrorist activities, including using a weapon or a "dangerous device". This controversially also includes civilians who offer material support to deemed terrorist groups. The new expanded definitions in effect lump groups that Washington once referred to as rebels, revolutionaries and, in certain instances, even "freedom fighters" together with radical, anti-US groups such as al-Qaeda and Jemaah Islamiyah.

Refugee-rights groups, such as the Refugee Council USA and Jesuit Refugee Services, are particularly concerned that the material-support clause applies to anyone who has ever given anything to a terrorist organization, including a glass of water. Remarkably, the definition of "material support" used in the Patriot Act fails to delineate exceptions for minimal support or even for support given under duress.

Indeed, by the definitions now set by the Patriot Act and the Real ID Act, all of the United States' founding fathers and the entire Continental Army that fought for independence against the colonial British would now be considered terrorists. Furthermore, much of the population of the 13 original US colonies would be considered supporters of terrorist organizations through the material-support clause.

Weak waivers
The US State Department has in certain instances fudged those requirements. Secretary of State Condoleezza Rice, using her discretionary authority under the Immigration and Nationality Act, for the first time in May 2006 granted a waiver for refugees in Tham Hin refugee camp in Thailand opposite Myanmar.

A second waiver signed last August allowed for the resettlement of Karen refugees in Thailand who according to the State Department "might meet all the eligibility requirements for resettlement under the administration's Refugee Admissions Program, including that they pose no danger to the safety and security of the United States, can settle in the United States even if they have provided 'material support' to the KNU".

And in January, the secretary of homeland security waived the material-support provision for eight groups first identified by Rice. In addition to the Tibetan Mustangs and Cuban Alzados, Myanmar's Karen National Union, the Karen National Liberation Army (KNLA), the Chin National Front/Chin National Army, the Chin National League for Democracy, the Kayan New Land Party, the Arakan Liberation Party and the Karenni National Progressive Party were also included.

Yet the waivers are not universal and only cover refugees who can demonstrate with evidence that they only provided material support and were not members of the groups or combatants.

Rather, the waiver provision allows the secretary of state or the secretary of homeland security to declare exempt on a case-by-case basis people who have supported groups whose policies do not conflict with the policy objectives of the US - which would arguably be the case for Myanmar's ethnic insurgent groups fighting against a government Washington has imposed economic and investment sanctions against. However, a waiver cannot be extended to people considered members or combatants of these same organizations, nor can it be applied to their spouses or children.

The waiver was extended for Thailand's Tham Hin camp because, according to State Department spokesman Sean McCormack, Department of Homeland Security representatives interviewing refugees in the camp "discovered that among the refugees were Karen who might have provided some 'material support' to the KNU, considered by the United States government to be a terrorist organization". Yet a search through the State Department's most current list of foreign terrorist organizations by this correspondent found no mention of the KNU or its army, the KNLA. In fact there were no political or military organizations from Myanmar listed at all.

That means that any Karen who is currently or has ever formerly been a member of the KNU or the KNLA is ineligible for resettlement in the United States, as are their spouses and children. According to lawyers from the Department of Homeland Security hearing resettlement cases in Mae Sot, Thailand, current or former members of the KNU are soldiers and will not be approved for resettlement and oddly by their undefined standards should not even be considered "freedom fighters". The US Embassy in Bangkok, however, says that although former KNLA combatants will not be eligible for resettlement, former members of the KNU may be eligible depending on their present membership status and if they are otherwise qualified.

This type of confused reasoning, both in Washington and by representatives of the government in the field, shows a lack of understanding of the real issues on the ground and a readiness to apply blanket criteria to a complex situation. Despite the waiver given to Tham Hin refugees, more than 20% of them were denied resettlement after adjudication by Department of Homeland Security lawyers. According to a September 2006 report by the Refugee Council USA, "These bona fide refugees not only meet the guidelines of the UNHCR [United Nations High Commissioner for Refugees], but they also met the requirements for US refugee resettlement and posed no danger to the safety and security of the United States."

De facto governments
What is apparently ignored by US lawyers is that for many of the indigenous peoples in Myanmar, their ethnic-based political organizations and soldiers are also seen as their governments and their armies. That is, these organizations are the hoped-for guarantors of their political future and the soldiers often act as protectors of the civilian population from rights-abusing government forces. This was certainly so in the past when the insurgents controlled much larger geographical areas in Myanmar.

This notion has even been accepted on occasion by the US government. For instance, an August 2006 media note from the Department of State said: "The KNU, founded in 1948, historically has functioned as the de facto civilian government of the Karen people in the areas it controlled, resisting the repression of and seeking autonomy from the Burmese regime. The Karen National Liberation Army (KNLA) is the armed wing of the KNU." (The US government does not recognize the name "Myanmar" but continues to use "Burma", the former name abandoned by the ruling junta in 1989.)

The Karen struggle in Myanmar has been ongoing for 50 years and during that time many Karen men have in one capacity or another served in the KNLA. Many KNU members are former members of the military wing and have since become civilian villagers again. When the conflict situation became too difficult to remain in Myanmar, they fled along with other villagers. But because of their past membership in the KNU or KNLA, they are barred from resettlement to the US.

Much has been written about the sometimes coercive nature of material support given to armed insurgent organizations. But what is often ignored is how the people living in these areas in Myanmar view the insurgent groups themselves. To many Karen living in Myanmar, the KNU was, and still is, their de facto government and in a conflict situation is at least roughly representative of the people's wishes. This is especially the case with Karen and Karenni refugees, whose political and military organizations are far less brutal than the central government.

Many among them view their donations of money or food as means of keeping their army in the field and not as help to a terrorist organization, as the US now deems them. As with the citizens of any country, they believe it is their duty to pay taxes to the government, whether in the form of money, rice or other material aid.

In large parts of Karen state, schools, clinics, village organizations and even trade were for decades run by the KNU through a functioning and organized education department, health department civil administration system and revenue department. The imposition of central government rule in these areas has only come about in the past 15 or so years.

Karen soldiers react with humor and outrage at being branded terrorists. What the USA Patriot Act considers a terrorist activity, be it the killing of a government soldier or the blowing up of a road or bridge, they see as a legitimate act of war. Enlisting as a Karen soldier is seen by many as the only way to resist a Myanmar army that various human-rights reports show shoots their people on sight, burns down their homes, rapes their women, destroys their crops and hauls their people off for forced labor.

Jesuit Refugee Service, a Catholic refugee assistance and advocacy organization, said in a 2006 Action Alert, "The material-support bar has given rise to an incongruous result in which refugees who have stood against terrorism and tyranny in their homelands, including individuals who have resisted dictatorships condemned by the United States or who have fought as members of groups receiving United States backing, are now barred from admission to the United States as 'terrorists'."

Myanmar's refugees are disqualified under the Patriot Act from taking up arms against the government. However, the US is not above asking these same people if they would be willing to serve in the US military if they were granted citizenship. Karen male refugees between the ages of 18 and 26 have been asked during their interviews with Department of Homeland Security representatives to sign a form saying they are willing to join the selective service program, which functions as a registry for possible conscription in the US military.

Myanmar's refugees are not Southeast Asia's only marginalized group to be adversely affected by the Patriot Act. Recent ethnic-Hmong refugees from Laos now in Thailand are also having a difficult time gaining legitimacy as refugees and being accepted for resettlement to the US. About 300,000 Laotians, mostly Hmong, fled to Thailand after the communist takeover of the country in 1975. The last Hmong refugee settlement at Wat Tham Krabock in central Thailand was closed in May 2005, with many of the refugees resettled to the United States by the end of that year.

However, Hmong have continued to flee Laotian government persecution, and between 4,500 and 8,000 refugees have recently clustered around the Thai village of Huay Nam Khao in Petchaboon province. They claim to be fleeing persecution, imprisonment and even death at the hands of Laotian authorities because of their own or relatives' ties to the US during the Vietnam War. While many Hmong fighters and their families fled to Thailand, many others stayed behind and have since waged a low-intensity, forlorn guerrilla war against the government.

The Hmong fought alongside the US in its "secret war" against communism in Laos. But under the Patriot Act, the US now says their armed activities then were terrorist in nature, both during and after the war. This is ironic given that Congress passed a law in 2000 relaxing citizenship requirements for Hmong in recognition of their Vietnam Wasr-era efforts. Yet the Hmong were not among the eight groups that received waivers in January, perhaps because of the United States' current policy to improve relations with the communist-led country.

The Thai government has claimed the Hmong are illegal immigrants and the Laotian government claims they have fled voluntarily in the hope of resettling in the US. In January, 153 Hmong were on the brink of being forcibly sent back to Laos until last-minute agreements were made with the US, Australian, Canadian and Dutch governments to resettle them. Other Hmong refugees, however, have recently been sent back quietly by the Thai authorities to uncertain fates in Laos.

Clifford McCoy is a Chiang Mai-based freelance journalist.

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Karen between a rock and a hard place
(Apr 6, '07)

Hmong and history muddle US-Lao ties
(Jan 23, '06)


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