The USA Patriot Act’s provisions barring entry into the United States of terrorism supporters are keeping out thousands of legitimate refugees. Eric Berkowitz reports that the resettlements of refugees from Burma, Columbia, Liberia and elsewhere are now on hold due to their “support” for rebel groups in thier native countries — support that was as minimal as a glass of water and was often given at the barrel of a gun.

But according to the USA Patriot Act, Mrs. D’s nightmare also constituted “material support” of a terrorist group, barring her from entry into this country. Still in Sierra Leone where she is seeking resettlement in the United States, her case has been put on hold indefinitely by the Department of Homeland Security.

Mrs. D isn’t alone. More than 10,000 Burmese refugees, as well as thousands of others who fled trouble spots around the world, are finding that their “support” of rebel groups — often given at the barrel of a gun and constituting as little as a glass of water or a bag of rice – branded them as backers of international terrorism and made them unwelcome here.

Since 2004, the DHS has adopted an increasingly strict interpretation the law, which has slowed the flow of refugees into the United States. Many of the refugees have already been referred to the United States for resettlement, but the USA Patriot Act’s material support bar, as enforced by the DHS, has put their eligibility for resettlement into question.

“The majority of the refugees are refugees precisely because they have been terrorized by their governments or rebel groups,” said Jennifer Daskal, Human Rights Watch’s advocacy director for US programs. “And in the process of being terrorized they are forced to give food, shelter and support to the rebels. The same facts that give rise to their refugee claims are the ones that bar them under the law.”

Ironically, many of the Burmese refugees (currently housed Malaysia and in Thailand refugee camps) are barred for helping pro-democracy movements that are aligned with U.S. foreign policy. The United States has an “estranged” relationship with the ruling junta in Myanmar (formerly Burma), according to the State Department, and the United States has designated Myanmar a “Country of Particular Concern” under the International Religious Freedom Act.

In his 2006 State of the Union address, President George W. Bush declared that “we do not forget” those fighting authoritarian regimes such as Burma and trumpeted the United States’ “compassion” for refugees “fleeing genocide.”

But that hasn’t helped a Burmese pastor living in the crowded Tham Hin refugee camp in Thailand. After members of the Karen National Union, a group supporting independence for the Karen ethnic minority, came into his village, the Burmese military jailed him and burned down his home, said Tyler Giannini, a Harvard Law School professor who went to the camp in January. “He was eventually let go because the village bought his way out” and then fled the country, Giannini added.

“His only support was giving small articles, like a hat, to a cousin” in the KNU, said Giannini. Nevertheless, the pastor and “as many as 82 percent of the other Burmese refugees may be labeled as engaging in ‘terrorist’ activity and precluded from resettlement under the current interpretations of the law,” said the report of Giannini’s Harvard-based research groups, The International Human Rights Clinic and the Immigration and Refugee Clinic.

Terrorists have long been barred from entry into the United States. But when Congress enacted the USA Patriot Act in the weeks following the Sept. 11 attacks, it expanded the legal definition of terrorist organizations to include groups that are not on the State Department’s list of terrorist groups, and also made providing “material support” to any such groups illegal. The law bars entry by anyone who gives support, voluntarily or not, to any such group.

“The law cannot draw a line between Osama bin Laden on the one hand and Nelson Mandela on the other,” said Giannini, referring to the leader of Al Qaeda and the former South Africa President and member of the African National Congress. “Right now, if someone like Nelson Mandela were to apply for asylum in the U.S., he’d be denied as a terrorist.”

Moreover, because the USA Patriot Act doesn’t differentiate between support given voluntarily or under duress, and also doesn’t define a “material” level of support, people forced to provide tiny amounts of food or services to rebels supported by the United States may also be denied entry.

“It all has to do with the way the law is written,” said DHS spokesperson Joanna Gonzalez. “As a department, our job is to follow the law.” In January, DHS lawyers argued in immigration court that the law’s plain language encompasses supporters of the Northern Alliance against the former Taliban regime in Afghanistan, and former supporters of the African National Congress. The lawyers also argued that any amount of support, even a few dollars or letting rebel sleep in one’s barn, required the application of the material support bar.

The United Nations High Commissioner for Refugees refers most of the resettlement cases to the United States government. Last year, the UNHCR formally referred all of the residents of the Tham Hin camp for resettlement. At the time, “nobody thought Burma would” fall within the material support bar, said Larry Youngk, the UNHCR’s resettlement officer. But soon after the referral was made, “we saw the broad definition of material support” being applied by DHS, and “we decided there will be a lot of people that will come under that broad standard,” he added.

The UNHCR has postponed DHS interviews of the Tham Him refugees. “We don’t think it’s in the refugees’ interest put them in a resettlement program only to find them deferred on the basis of terrorism,” Young said. “It puts them at greater risk where they are.”

The strict application material support bar has also led the U.N. to suspend the resettlement of Columbians fleeing from various rebel and paramilitary groups in that country. The UNHCR estimates that 70-75% of those refugees provided “material support,” as defined by U.S. law, notwithstanding that the support was often forced.

A fact-finding group from Georgetown University Law Center recently interviewed Columbian refugees living in Ecuador. One Columbian, who believes his family was killed by paramilitaries, was forced to dig graves for them before he escaped. Another refugee, who owned a small store in Columbia, was forced to give clothing to paramilitaries and then gang-raped when she demanded payment. These two would be forbidden to enter into the United States under the material support bar, said Jennifer Pasquarella, a member of the Georgetown fact-finding group.

In recent weeks, several lawmakers have expressed concern about the broad application of the material support bar. “I believe that Congress clearly intended the material support bar to apply to individuals who willingly support terrorist organizations seeking to harm U.S. national security interests rather than preclude the admission of refugees who pose no such harm,” wrote Rep. Tom Lantos, raking Democratic member of the Committee on International Relations, in a letter to DHS Secretary Michael Chertoff and Secretary of State Condoleeza Rice.

Sens. Edward M. Kennedy and Joseph I. Lieberman have also written Chertoff, urging the DHS to “implement the material support bar in a manner that does not exclude deserving and vulnerable refugee and asylees.”

The DHS can waive material support bar in cooperation with the State Department and the Department of Justice, but the three agencies have thus far not worked out procedures for accomplishing this. “Homeland security is working on it,” said Gonzalez.

“The only way this can be solved is by legislative change,” Daskal said. “I don’t think anyone intended for this law to have these bizarre consequences.”

Daskal said several members of congress, on both sides of the aisle, are considering proposing amendments to the USA Patriot Act to at a voluntariness requirement and also a “de minimis” threshold for the amount of support that would qualify as material. No such proposed amendments have been made thus far.