Daniel Pipes: U.S. Improvising on Security Five Years After 9/11

The five years since the attacks of September 11, 2001, in retrospect, have been like a perpetual workshop in which Americans argue about the nature of their enemy and how to defeat him.

Along the way, they have made plenty of mistakes, ranging from Secretary of State Colin Powell claiming that September 11 "should not be seen as something done by Arabs or Islamics" to not allowing an Arab to board an airplane because he wore a T-shirt bearing Arabic script. What impresses me, however, is how Americans have constantly, if slowly, improved their understanding of the enemy, as can be seen in everything from presidential rhetoric to airplane security. Much of this evolution has been improvised – using existing tools in new ways, preserving old laws but applying them in new circumstances.

Here's one such example: Hamid Hayat, a 23-year-old cherry packer from Lodi, Calif., was convicted in April 2006 of providing material support to terrorists by attending a paramilitary training camp in Pakistan in 2003 and 2004. In the course of a police interrogation, when asked who else had gone to the terror camps, Hayat fingered his 18-year-old American-born cousin, Jaber Ismail, saying he "went, like, two years ago." Did Mr. Ismail attend the same camp as him? "I'm not sure, but I'll say he went to a camp," he said. Hayat later modified his story, saying that Mr. Ismail and another relative "didn't talk to me about going to camps or anything. But you know I'm sure they went to the camp ... 'cause they memorize the Holy Koran."

Mr. Ismail had, in fact, lived in Pakistan for four years, along with his father, Muhammad, a 45-year-old naturalized American citizen born in Pakistan, his mother, and his two siblings. Predictably, Jaber explained his Pakistan years benignly: "I was memorizing the Koran because it was important to my mom." Jaber and Muhammad Ismail were so close to Hayat that they listed him as an emergency contact in their passports.

On returning to Lodi from Pakistan on April 21, the Ismail family changed planes in Hong Kong. Three family members got permission to go on, but Jaber Ismail and his father were stopped, so they returned to Pakistan. On trying again two weeks later, they learned that, though they were not charged with a crime, they were on the American government's terrorism watch list, and that they could only enter the United States after getting "clearance" from the embassy in Pakistan. That meant submitting to an FBI interrogation and to lie detector tests, which they refused to do.

On August 9, the American Civil Liberties Union filed a complaint with the U.S. Department of Homeland Security (DHS) claiming that the Ismails have been denied their civil rights. The ACLU lawyer, Julia Harumi Mass, stated: "They want to come home and have an absolute right to come home. They can't be compelled to waive their constitutional rights under threat of banishment." The director of the aviation safety and security program at the University of Southern California, Michael Barr, deemed it "very unprecedented" for American citizens to be rendered stateless in this fashion. Usama Ismail, 20, complained that his brother and father are being treated "like foreigners or something."

Is the Ismails' exclusion legal?

To get a reading on the feds' legal basis, I turned to a former chief of the national security section for the Bureau of Immigration and Customs Enforcement in Miami, William West. "It is a rare decision, but within the legal pale," he explained to me.

"Section 215 of the Immigration and Nationality Act, 8 USC 1185 allows for the ‘travel control' of the entry and departure of citizens. U.S. citizens use their passports only within the rules, regulations, and proscriptions as issued and decided by the president. Travel restrictions on U.S. citizens are seldom utilized (and usually to keep criminal or national-security suspects from fleeing). The law, however, does also allow for entry control."

Mr. West expects that the Ismails "ultimately will be allowed back into the country. But in the short term, DHS has a legal basis for excluding them."

The DHS not only applied the law to scrutinize possibly dangerous Islamists but its actions suggest a possible conceptual breakthrough, signaling that the American government sees the "nationality" of radical Islam to be incompatible with American citizenship. Thus do Americans improvise and make gradual progress in their war on terror.

This article is reprinted with permission by Daniel Pipes. This article first appeared in the New York Sun.