Controlling the Border ...           Conceding the Battle ...          Response           The Last Word?


Controlling the Border: A Matter of Safety,
Sovereignty, and Fairness
by George Terwilliger


The relative ease with which irregular combatants can enter United States territory to attack civilian and military targets is an obvious and present threat to our national security. In addition to the potential for thousands of casualties, attacks by these intruders could cripple our economic infrastructure. Moreover, successful attacks would call into question the very ability of our government to perform its most fundamental responsibility: defending the homeland and its inhabitants.

In addition, the failure to control our borders and immigration generally results in manifest unfairness to immigrants and visitors alike, disrespect for the rule of law and a great disservice to our own citizens who rightfully expect the government to guard effectively the nation's frontiers.

A nation that cannot or does not control its borders fails in "a fundamental act of sovereignty.' United States ex rel Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950). It is past time for the United States to reassert this sovereignty. The September 11 Commission found the vulnerability arising from the chaotic state of immigration law and enforcement to be among the pressing concerns requiring prompt attention. See National Commission on Terrorist Attacks on the United States, The 9/11 Commission Report, at 387-90. Under the current legal and enforcement regime, the population of persons illegally in the United States is estimated to have reached nine million and climbing. See Ruth Ellen Wasem, Unauthorized Aliens in the United States: Estimates Since 1986, CRS Report RS21938 (2004). Meanwhile, many foreign nationals—students, businesspeople, tourists, and others—wait patiently abroad to enter in a lawful manner for a lawful reason.

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Conceding the Battle: Heavy-Handed Immigration Measures Three Years After 9/11 by Timothy Edgar

The still-potent memory of the terrorist attacks of September 11, 2001, continues to spur forward proposals that will diminish our nation's respect for the fundamental freedoms of aspiring immigrants and non-citizens as well as citizens of the United States. Perhaps the greatest flaw in most of the "reform' proposals pushed under the banner of national security, moreover, is that they will do nothing to enhance our safety. Indeed, for the most part, these proposals are simply unworkable, pre-9/11 schemes advanced by anti-immigration advocates who quite literally favor putting a wall around America. Put simply, we need not lock down our borders or abrogate our fundamental freedoms to stop terrorists. Indeed, if we do take the wrong fork in the road, we will have all but conceded the ideological battle with our enemies.

While the crowning jewel of the anti-immigration proposals has always been a Berlin Wall-style barrier along the Southwest border with Mexico (now, amazingly, proposed to be extended along 4000 miles of Canadian border as well), this proposal simply fails under its own weight whenever seriously proposed. Put plainly, those dollars would be better spent to bring the intelligence community's information technology into the 21st century, to train and hire translators and analysts to comb through the backlog of intelligence intercepts, and to update the immigration service's notoriously inaccurate record-keeping system.

In the main, the anti-immigration proposals with the strongest support of the anti-immigrant lobby in Congress involve diminishing the rights of the vulnerable, rather than spending the resources needed on effective border security. In the fall of 2004, House Judiciary Chairman F. James Sensenbrenner, R-WI, held hostage intelligence reform legislation endorsed by the National Commission On Terrorist Attacks Upon the United States, or 9/11 Commission, insisting on a package of misguided anti-immigration provisions. These were proposals the 9/11 Commission had specifically refrained from endorsing after careful study. While Sensenbrenner failed to garner support for the more extreme immigration provisions, he has managed to ram these proposals through the House again early this year in the form of a bill styled the "REAL I.D. Act' by supporters.

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George Terwilliger Responds

We are engaged not as the response would have it, in an "ideological battle with our enemies,' but in a real war in which those enemies seek to continue to kill Americans. The relevant ideological battle in the context of control of the nation's borders is between those who believe that the rule of law means that everyone has to obey the law and those who believe that an ineffective and outdated system may be left in place, even in the face of a grave threat to national security.

There is nothing "anti-immigrant' or "anti-immigration' about the initial essay. Indeed, the points and proposals raised therein are pro-immigration. Immigration is a strong fiber in the fabric of our society, but a certain path to pulling that thread loose is continuing to ignore gaping holes in our immigration law and procedures, continuing to reward those who first come to the US by committing illegal acts and turning a blind eye to the patently obvious security risks that current immigration and border enforcement engenders. The approach advocated by the response—apparently to permit the status quo to persist—would ignore serious security issues, reward lawbreakers and send a message to the thousands who patently wait to emigrate to the US through lawful means that their compliance with the law only leaves them waiting at the border while their places are taken by those who cheat to enter the country.

The original essay did not advocate wholesale adoption of the provisions of the "REAL I.D. Act.' Nevertheless, certain aspects of that act (or slightly modified versions of the measures called for therein) could provide real benefits both in making our system of immigration law more efficient and effective and in the war on terrorism. A national I.D. card containing biometric identifying data linked to an integrated database, for instance, would enhance security and ease enforcement of existing immigration laws. The primary objections to such a proposal raised in the response appear to be that such an I.D. would be easy to obtain using counterfeit precursor documents and that such a system would impose an undue burden on the states through unfunded mandates. These arguments are essentially red herrings. Far from creating a false sense of security, a card containing biometric information would require precisely the kind of point of contact with government authorities that terrorists seeking to conceal their true identities seek to avoid. Moreover, such a system need not be implemented through unfunded mandates.

Similarly, the reforms to asylum procedures suggested in the initial essay are not dealt with in the response, which instead focuses on the REAL I.D. Act's proposal to permit a corroboration requirement as part of that process. Regardless of the wisdom of imposing a corroboration requirement, it is simply not the case that, as the response suggests, asylum applicants are so carefully scrutinized as to render it unlikely that terrorists will use this avenue to enter the country. Indeed, Ramzi Yousef, architect of the first World Trade Center bombing, entered the country as a paroled asylum applicant.

I should note that I agree with the response insofar as it suggests that the most important weapon in the counter-terrorism arsenal is intelligence. As I noted in testimony to the Senate Judiciary Committee in April of 2002, knowledge is the most important weapon we have in the war against terrorists. We cannot remain a free society without remaining vulnerable at some level to those willing to subvert the rule of law and surrender their own lives in order to create mayhem and destruction. The only way to best such people is to know who they are, what they are planning and to stop them. Reforming our approach to control of the borders is but one prong in what must be a multi-faceted strategy to combat the threat of terrorism.

Timothy Edgar The Last Word?

I could not agree more with the rebuttal that the ultimate purpose of our system of laws is their equitable application. The problem, however, with many of the policies proposed in a "Fortress America' approach is that they would, in the name of enforcing the law, require the government to violate that most basic of all laws: the Constitution. As Brandeis said, "Our government is the potent, the omnipresent teacher. For good or ill, it teaches the whole people by its example."

The best example of this constitutional problem is the proposed requirement that asylum seekers provide corroboration from their home government of either past or future persecution. As the government that would be doing the corroborating is also often the persecutor, this policy effectively treats asylum claimants as unworthy of the same due process the Fifth Amendment provides to all persons, not merely citizens. This is not closing a "loophole,"it is making it more difficult than it was before for asylum claimants to put forward a successful claim.

To be clear, we do not seek to excuse wrongdoers from answering to the law. But the approach of the rebuttal is simply more of the same—more court-stripping, more government forms, more walls and fences. America has been following this approach since the 1996 immigration laws, without success in preventing illegal immigration or the entry of terrorists. If we keep it, the authorities could easily miss Mohammed Atta walking down the concourse with a fake ID, while they spend their time and resources on the deportation of a yet another hard-working young man from Mexico City .