Patriot Debates

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.

The REAL I.D. Act includes:

• a waiver of "all laws' to expedite construction of a border fence;
• changes to the asylum process that make it more difficult for claimants to find haven in the United States;
• legislation to limit when immigrants ordered deported or detained can seek habeas corpus relief in the federal courts;
• retroactive application of new grounds for removal;
• and, last but certainly not least, a national identification system keyed to immigration status in the guise of new rules for our now-federalized drivers licenses.

This last, of course, poses additional considerations for both privacy rights and sound principles of federalism (in that even a moderately secure system would be inordinately costly to implement, with the lion's share of such costs passed onto the states through new, unfunded mandates on the state motor vehicles bureaus). Though one can certainly appreciate the need to intercept terrorists and other threats before they can enter the country, these proposals are not calculated to meet that challenge and would result in extensive collateral damage were they to be adopted.

If passed, the REAL I.D. Act would make the driver's license provisions in the intelligence reform bill far more invasive, requiring states to link their motor vehicle licensing databases with those of Canada, Mexico and the other states, and would force states to integrate immigration status information into their licensing infrastructures. This latter requirement would apply even if it were at odds with state statutes. Practically, this unfunded mandate would impress state Department of Motor Vehicle employees into service as untrained, ill-equipped deputies of federal immigration authorities. Notably, this commandeering of state resources for immigration enforcement is the same approach in the Clear Law Enforcement for Criminal Alien Removal (CLEAR) Act, H.R. 2162, 108th  Cong. (2004), which died in committee but would have required local and state law enforcement officials to enforce federal immigration laws.
The most pressing unanswered question is how this change would help intercept terrorists before they strike. The majority of the hijackers were in the country under valid, unexpired visas, and all traveled under their own names. Even counterfeit resistant, biometric identification can only be as good as the documents (such as a birth certficate) on which it is based. The security of birth certificates can be enhanced, of course, but any changes made now will have little effect for decades. Imposing federal mandates on state drivers licenses to catch undocumented workers, under the facade of counter-terrorism, will provide only false security. The local DMV will try and fail to round up undocumented workers, and local police will instead notice an increase in unlicensed, uninsured drivers on the highways who are reluctant to help them catch criminals. Meanwhile, actual terrorists will be able use counterfeit precursor documents to obtain valid identification, which, because of a false sense of security, will be unquestioned everywhere in the country.

The Sensenbrenner bill also goes after one of the most vulnerable populations: those fleeing persecution from countries like China, North Korea and Iran. Asylum applicants are already among the most scrutinized of non-citizens to enter the country—all are fingerprinted and given extensive background checks. According to the 9/11 Commission, this is a major reason Al Qaeda turned to business visas, not asylum applications, to mount the 9/11 attack. The 9/11 Commission did not recommend making it more difficult to obtain asylum and criticized the use of immigration laws to round up innocent Arab and Muslim non-citizens.

The "REAL I.D. Act' ignores these findings, making it more difficult for claimants to find haven in the United States. Specifically, the bill would permit federal officials to require "corroboration,' such as police reports or other documents, for what would be otherwise valid claims of persecution or torture. This would have the sublime effect of, for instance, putting the fate of those escaping the Janjaweed militias in Darfur in the hands of their sponsors in Khartoum who have control of the official documents that are demanded. The bill then limits the ability of the federal courts to reverse denials of asylum claims on that basis.

Incoming Secretary of Homeland Security Michael Chertoff criticized just such a corroboration requirement while on the federal bench. In Chen v. Attorney General, 81 Fed. App. 418, No. 0002-4303 (Nov. 23, 2003), the Third Circuit upheld the denial of asylum for a Chinese woman who claimed she was forced to undergo forced abortion and sterilization. Chertoff's vigorous dissent pilloried the requirement, imposed by an overzealous immigration official, that the woman produce a government certificate verifying the date of the abortion." Chen submitted a State Department report stating that Chinese authorities do not issue abortion certificates for involuntary abortions,' he wrote." If so, that would seem a pretty persuasive reason why no such certificate could be provided to corroborate an involuntary abortion.' Id. at 425 (Chertoff, J., dissenting). The REAL I.D. Act would, however, insulate just such arbitrary decisions from judicial review.

Finally, the REAL I.D. bill seeks to amend the 2001 USA Patriot Act, Pub. L. 107-056, 115 Stat. 272, 107th Cong. (2001), to enable the government to deport long-term, lawful permanent residents for providing humanitarian support to groups that immigration authorities later assert fit the definition of a "terrorist group.' The provision would require the deportation of the non-citizen even if the support was completely lawful at the time it was provided. Support, even humanitarian support, for a designated terrorist group is, of course, already grounds for deportation, not to mention a serious felony. The Sensenbrenner bill, however, would make lawful donations made even decades ago by permanent residents who have lived in America for many years retroactive grounds for deportation, even if the recipient organization has never been added to an official government terrorist list. Though the Patriot Act makes such support grounds for refusing a potential immigrant admission to the country, to have it become a retroactive tool for the summary deportation of lawful and law-abiding permanent residents seems vindictive and unnecessary.

The "REAL I.D. Act' is only a taste of a much broader anti-immigrant agenda, which continues to advance even three years after 9/11. Some even argue, for instance, that law enforcement should openly structure investigative and security-screening tactics around immutable group characteristics like race, religion or ethnicity. This proposal ignores the experiences in Chechnya and Israel where terrorists have used women or teenagers to successfully foil security "profiles' (not to mention deep-seated American ideals of equality under the law and basic fairness). America itself saw folly of profiling at work during the Oklahoma City bombing investigation, which spurred an immediate manhunt for Middle Eastern terrorists with the perpetrator turning out to be homegrown. While opponents of racial and ethnic profiling are often scorned as "politically correct,' it is police chiefs themselves, like the police chief who headed the Washington, DC-area sniper investigation, who have protested most loudly against this ineffective and counter-productive tactic.

Demands for the United States to diminish basic, fundamental freedoms to secure American borders and sovereignty are dangerously misguided and obscure the real issues in border security. The only way to stop terrorists—or anyone else—from entering the country is to spend adequate resources, through a reformed intelligence system, to identify terrorist suspects and arrest them when they attempt to enter the country. Federal attention must be focused on this extremely difficult task, not on a nativist agenda masquerading as counterterrorism policy.

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.