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
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
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
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
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
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
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
Clifford McCoy is a Chiang Mai-based freelance journalist.