Table of Contents
F. National Security: Cross-Agency Cooperation
Involvement in World War II increased national security concerns as the INS detained and interned "enemy aliens" (Germans, Italians, and Japanese) throughout the war 242 and began a process by which it could identify and monitor the U.S. foreign-born population. In 1940, Congress passed the Alien Registration Act of 1940, which made members of certain criminal and subversive groups subject to removal and required registration and fingerprinting of all immigrants entering the U.S. 243 The terrorist attacks of 9/11 triggered what The Economist described as "a seismic change in the international scene," a new era with unforeseeable consequences for both the United States and the international community as a whole. 244 The shift in public thinking about immigration from prior ideations to national security concerns led to a number of concrete changes to U.S. immigration law. Congress and the Bush Administration took measures 245 that broadened the national security grounds for inadmissibility and removability; expanded detention of non-citizens who are suspected of terrorism or who are from countries associated with terrorism; relied more heavily on nationality in deciding immigration law enforcement priorities; strengthened restrictions on nonimmigrants, both before and after admission into the United States; increased the role of states and localities in immigration law enforcement; restructured immigration agency responsibilities; and limited public access to removal hearings and non-citizen access to the evidence against them in removal hearings. 246
Over the last five years, there have been a series of debates in the literature connecting immigration and the tragedy of 9/11. The collective restrictionist voice on 9/11 has proclaimed the tragedy a fault of immigration policy whereas expansionists have dismissed this idea as absurd. The strong expansionist voice is in response to not only the absurdity of the claim itself - which even-minded individuals on both sides of the debate recognize - but to the politicization of 9/11 and the tying of anti-immigration provisions to 9/11-specific movements in Congress. For example, when the bi-partisan 9/11 Commission sent its recommendations to Congress in the twilight of 2004, which were marked up by the "Restrictionist Wing" of the House to include certain immigration provisions outside the scope of the Commission’s report. These provisions involved the erosion of certain civil rights, further restrictions to legal immigration, the dismantling of due process and the expedited removal of immigrants merely suspected to have entered the country illegally within the last five years.
Krikorian promotes the idea of an immigration-induced 9/11, asserting that most Americans understand that immigration control is a critical tool for protecting America’s national security. He points to a Zogby International poll taken in the wake of the 9/11 attacks, which found that the overwhelming majority of Americans, across all races, regions, incomes, and political beliefs, blamed lax border control and screening of immigrants for contributing to the attacks, and believed that improved immigration enforcement would reduce the likelihood of future atrocities. 247
In response to these and other attempts to tie terrorism and immigration together in an inseparable knot, advocates of an expansionist policy have gone on a press release warpath proselytizing an absolute disconnect between the two phenomena. In their piece entitled "The Lessons of 9/11," Benjamin Johnson (Director of the Immigration Policy Center at the American Immigration Law Foundation) and Margaret Stock (Assistant Professor of Law at the U.S. Military Academy) address the argument that lax immigration laws are to blame for the tragedy of 9/11. They vigorously assert that "the attacks of September 11th did not stem from a failure of immigration law, but [from] a failure of intelligence" 248 and that although these attacks brought to light serious management and resource deficiencies in the government’s border bureaucracies, immigration laws in and of themselves did not increase the United States’ vulnerability to attack. They further assert that U.S. immigration laws already are among the toughest in the world and have long provided the federal government with broad powers to prevent anti-American terrorists from entering or residing in the United States. A careful analysis of the 9/11 attacks reveals that deficiencies in U.S. intelligence collection and information-sharing - not immigration laws - prevented the terrorists’ plans from being discovered. 249
Doris Meissner (former Commissioner of the now-dismantled INS) forwards this posture in her Carnegie Endowment piece entitled "After the Attacks: Protecting Borders and Liberties," in which she reminds the reader that far prior to 9/11 the Attorney General and Secretary of State had broad latitude and discretion on immigration matters. Officials in government charged with immigration matters had already been granted, in response to previous threats to national security (most notably, during World War II and in the aftermath of the 1993 World Trade Center bombing), significant powers to thwart future threats: "Important elements of their decision making are not subject to judicial review, their existing authority to arrest and detain is considerable" and now includes "open-ended authority to arrest and detain non-citizens [merely] suspected of terrorism connections." 250
Further defending the posture that immigration is not to blame for terrorism, Meissner takes the reader through the lessons of history, and reactionary immigration policies, concluding that in times of prosperity the United States has overlooked or openly encouraged immigration, authorized or otherwise, often of low-skilled workers. In times of hardship, immigrants become scapegoats for deeper weaknesses in policies or society. With each swing of this pendulum, prevailing administrative practices are viewed as either too strict or too lax. The political consensus needed to steadily, continuously balance national security that deters terrorism and other extra-national threats with policies to capitalize on the benefits of immigration have been elusive. 251 Objective thinkers in most circles recognize these comments as valid and are not about to reproach immigration for the gross intelligence failure (not to mention the perpetrators’ diligent hatred) resulting in 9/11.
The House bill would direct the USDHS to take necessary steps to achieve operational control of the borders within 18 months by erecting 698 miles of border fence along the southern border and increasing trained detection canines by 25 percent over five years. It would also require the deployment of radiation portal monitors within one year to all ports of entry and cargo screening facilities as determined by the USDHS. Finally, it would authorize appropriations for an unspecified number of additional Border Patrol agents. 252 The Senate bill would mandate the federal government to repair or replace the existing fences along the southern border, and would authorize the construction of 370 miles of additional fencing in high traffic areas. Moreover, it would create a virtual fence with unmanned aerial vehicles, cameras, poles, sensors, and other necessary technologies, and would fund increases in equipment such as helicopters, powerboats, vehicles and body armor. The number of Border Patrol agents would increase by 3,000 a year between 2006 and 2010. 253
A moderate view of the distinction between the policy failures of the diplomatic and intelligence communities and the policy failures of the immigration bureaucracy would treat the two issues as distinct yet not entirely inseparable. While the immigration system cannot be blamed for 9/11, the technology and screening tools utilized by the system can be more effectively implemented to monitor the daily influx of foreign nationals so that individuals with a proactive hatred towards American values can be appropriately pinpointed and removed from the immigration line. However, effective implementation requires intimate cooperation between state immigration, diplomacy and intelligence agencies, which have a history of bitter competition and a strong lack of information centralization. With the well-publicized 9/11 Commission’s recommendation for an "Intelligence Czar" and the Bush Administration’s responsive appointment of John Negroponte as the National Intelligence Director, it is hoped that only a reasonable allocation of responsibility for protecting the homeland will be placed on the immigration bureaucracy, with Negroponte harnessing in the nation’s intelligence community for primary responsibility and effective cooperation in terms of technology and information-sharing.
The overwhelming majority of migrants are not terrorists and those who are (i.e., those extensively involved in the drug trade and transnational gang spillovers from Central America) target their violence at one another and at specific U.S. agencies such as the Drug Enforcement Agency and its interruption of profitability in what is perceived to be a pure - albeit clandestine and unlawful - supply-and-demand model. Yet even these groups - the Arellano-Félixes and the MS-13s - do not engage in terrorism as culturally defined since 9/11. Theirs is a traditional type of war with distinct sides and finite objectives, and traditional factionalized "wars" such as these do not have wide-ranging spillover effects that involve the populations-at-large on either side of the southern border.
Sensible immigration reform would recognize the separation of issues and seek solutions to the problem of undocumented immigration in isolation from the grander security strategy necessary to protect the homeland. Preserving national security is what the United States armed forces and foreign policy are for. Immigration agencies and citizen action groups like the Minutemen should not replace a strong military and effective diplomacy in this effort. Therefore, USCBP Border Patrol efforts should be concentrated on thwarting undocumented entries into the U.S., with a complementary assistance role in combating actual threats to national security (using information provided by the federal intelligence authorities). Equitable moderate immigration reform measures, outlined herein, would reduce the amount of non-threats (i.e., undocumented migrants), thereby enabling the USCBP Border Patrol to better utilize its existing resources to fulfill this assistance objective. A sharpened apprehension-security model on the border, with clearly defined objectives, would free up resources that would then be diverted away from the USCBP Border Patrol and redistributed to the USCIS for reducing adjudications backlogs and to the USICE for enforcing the rule of law in the country’s interior.
An appropriate upgraded security model ties together the cross-agency intelligence-sharing referenced supra with additional pragmatic improvements to the existing enforcement architecture. This approach would involve an online lookout system of persons ineligible to enter the United States due to severe criminal or terrorist affiliations; providing Immigration Inspectors at the border with electronic access to visa application data at U.S. Consulates abroad; requiring advance sharing of passenger information for all international flights; procurement and installation of equipment to read new, secure permanent resident cards and visas at ports of entry; expansion of the availability of commuter lanes and pre-certification programs for law-abiding travelers from Mexico; and the mandated use of the existing automated entry-exit data system for non-citizens by all airlines at all airports. 254 Lastly, upscale immigration enforcement models must distinguish between individual migrants and exploitative mechanisms - most notably the violent human smuggling and trafficking rings - that induce proliferated undocumented migration, placing primary emphasis on the former in order to tear down the structure of illegality rather than inefficiently spending the country’s tax account on treating its symptoms. Criminal background checks should remain intact during the immigrant and nonimmigrant visa adjudications processes. However, a "forgiveness" or "human reform" provision should be instituted in law to account for human fallibility and the belief in personal reform, through which non-repetitive minor crimes are "expunged" from the qualifications criteria, thereby enabling greater resource concentration on true threats to national security. Greater cooperation should also be established with Mexico to thwart criminal enterprises and undocumented transitory migrations from Central and South America into the United States.
242 Immigration Act of November 29, 1990 (104 Statutes-at-Large 4978).
243 e.g., Extend the authorized period of stay within the United States for certain nurses (Pub. L. 104-302), To extend the "S" nonimmigrant visa category for two additional years, and to authorize appropriations for the refugee assistance program (Pub. L. 106-104), American Competitiveness in the Twenty-first Century Act of 2000 (Pub. L. 106-313), Consolidated Appropriations Act, 2005 (Includes L-1 Visa and H-1B Visa Reform Act, and the H-1B Visa Reform Act of 2004) (Pub. L. 108-447).
244 e.g., Irish Peace Process Cultural and Training Act of 1998 (Pub. L. 105-319), Nursing Relief for Disadvantaged Areas Act of 1999 (Pub. L. 106-95).
245 Fragomen, "Summary."
246 I.N.A. §203(b)(1), 8 U.S.C. §1153(b)(1).
247 I.N.A. §203(b)(1)(A), 8 U.S.C. §1153(b)(1)(A).
248 I.N.A. §203(b)(1)(B), 8 U.S.C. §1153(b)(1)(B).
249 I.N.A. §203(b)(1)(C), 8 U.S.C. §1153(b)(1)(C).
250 I.N.A. §203(b)(2), 8 U.S.C. §1153(b)(2).
251 I.N.A. §203(b)(2)(A), 8 U.S.C. §1153(b)(2)(A).
252 I.N.A. §203(b)(2)(B), 8 U.S.C. §1153(b)(2)(B).
253 I.N.A. §203(b)(1), (2); 8 U.S.C. §1153(b)(1), (2). The "cap" for EB-1 visas is 28.6% of the annual worldwide employment-based visa allocation plus any unused visas from the "certain special immigrants" and "employment creation" visa categories. The "cap" for EB-2 visas is 28.6% of the annual worldwide employment-based visa allocation plus any unused visas from the EB-1 visa category.
254 I.N.A. §202(a)(2), 8 U.S.C. §1152(a)(2).