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.
Yet while the threat, and the need for reform, are relatively clear, the commitment to control our borders as part of a comprehensive defense has not materialized. The stepped-up enforcement of immigration laws and reordering of intelligence-related assets that have occurred are very positive developments, but are not enough. In the past, terrorists have employed almost every means available to enter or remain in the United States—student and tourist visas, asylum applications, false passports, and many others. Without a reassertion of control over the border, including broad immigration law reforms, we will remain fundamentally as vulnerable in this respect as we were on September 10, 2001.
The Legal Authority for Immigration Control.
The legal authority necessary to reassert sovereignty over the border is readily available. The national government has plenary authority to control who enters the United States and under what circumstances and conditions. Knauff, 338 U.S. at 542. The exercise of this power is committed to the political branches. Congressional power in this regard is apparent from the combined import of the Commerce Clause, the Naturalization Clause, and the Necessary and Proper Clause of the Constitution. The executive power to exclude aliens "is inherent in the executive power to control the foreign affairs of the nation.' Id. The judicial branch has only limited authority to review the execution of relevant laws for due process concerns. Id. at 543 ("it is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of government to exclude a given alien').
Steps to Reasserting Sovereignty Over the Borders
Physical Control of the Borders. Several steps should be considered as means to reassert sovereignty over our borders. First, we must regain effective physical control of the borders. At least 300,000 people enter the country illegally without inspection each year. Chicago Council on Foreign Relations, Keeping the Promise: Immigration Proposals from the Heartland at 28 (2004). It is time to stop pursuing the fiction that simply adding more border officers will curb illegal entries. The borders should be temporarily hardened with physical barriers that can be manned and patrolled effectively. The proposed national security fence along the border with Mexico would be a large step in the right direction. No less is required on the northern border. That open frontier has been used for decades by all manner of underworld elements to evade immigration control, including bootleggers in the 1920s, heroin smugglers in the 1970's, and terrorists in recent years. The first known attempt by a Middle Eastern terrorist group to bring an explosive device into the United States occurred on the Vermont-Quebec border in 1986. Today, Montreal in the east, and Vancouver in the west, are major first stops for aliens and contraband coming to North America from overseas.
Any border fence must have a wide metaphorical gate, open to those who would legitimately come here to see or pursue the American dream. The borders must, however, be closed to those who would bring contraband, terrorist violence, or weapons of mass destruction into the country.
National Identity Card System. In addition, an effective national identity card system, utilizing biometric identifying information, should be implemented. A national identity card system could not only provide the foundation for effective immigration control, it could also combat identity theft; criminals are a greater threat to privacy in the information age than the government. The program must have stringent privacy protections, including built- in restrictions on access to the data connected with it. Strict criminal sanctions should also be created for illegal use of the card or system data.
Reforms to Immigration Laws. A number of reforms to immigration laws now on the books are called for as well. First, an amnesty program along the lines recently discussed would be sensible. It is not a good use of resources to seek the apprehension and exclusion of law abiding aliens who entered through the gaping holes in our system and are no w making positive social and economic contributions. For would be entrants from abroad, special, enhanced inspection procedures, and potentially an immigration freeze, could be initiated for persons meeting a special screening profile that includes ethnicity and nationality among the criteria utilized. Treating all alien applicants for entry as equal threats to security, as our system now does, is both wasteful of precious resources and dangerously unrealistic. Such a system fails to focus on criteria drawn from reliable data that would allow more efficiency, greater effectiveness, and real fairness in distinguishing between legitimate applicants and security threats. An immigration system that fails to use available knowledge to discriminate among all applicants to identify the more likely threats is no system at all. It is unfair to the majority of law abiding people and subjects our efforts to scorn and ridicule. Such monuments to mindless political correctness need to be dismantled.
Further, the practice of paroling asylum applicants and other would be emigres into the United States pending decision on their applications should be ended except in rare, specific cases (e.g., children paroled into the custody of relatives in the United States). Under the current system, an applicant may be temporarily admitted to the United States and released until the date of the hearing on his application. Unsurprisingly, a substantial percentage of those thus paroled do not return for the hearings on their applications. This system could be replaced with one under which all applications would have to be made and decided upon at a United States embassy or consulate overseas. Aliens who arrive at United States borders requesting asylum could be returned to their point of embarkation, or if such return would pose an undue risk to them, to a third country, and either held or released there pending application for asylum at a United States embassy or consulate. In the few cases in which that is impossible, detention here should be mandatory pending review of the application at an embassy or consulate in the country of embarkation.
Finally, as to those found violating immigration laws in the future, any person administratively determined to have entered or attempted to enter the United States unlawfully should be permanently excluded, without the right to judicial review. If such a person were later found in the United States, a period of incarceration of up to five years, and/or deportation at any time without judicial review, would be appropriate. Similarly, any application to enter or remain in United States that is administratively determined to be false or fraudulent should result in the forfeiture of any rights the applicant may have to be in the United States.
Complete and Compatible Fingerprint Identification System. Lastly, all persons applying to visit, immigrate, or apprehended having entered or trying to enter United States illegally should be ten-print fingerprinted electronically and assigned a number which should be permanent. The method of fingerprinting used by the Department of Homeland Security must be compatible with that used by the FBI, so that the fingerprints of aliens encountered by DHS officials may be cross-referenced to those in the FBI's database. The incompatibility between the databases used by these authorities—identified, among other sources, in a March 2004 report by the Inspector General of the Department of Justice—cannot be allowed to persist.
For both its national security interests and in vindication of the rule of law, the United States needs to reassert immediately its sovereign right to control its borders. We must be prepared to accept that many, including friends abroad, will object vehemently to any reforms that tighten restrictions on aliens' access to the United States. We must also, of course, undertake these changes without diminishing our historic welcome to lawful immigrants and visitors. Indeed, these reforms must be undertaken not only for the sake of national security, but also to provide fairness to those who would come lawfully in the footsteps of the thousands, including one of my grandfathers, who came before them and from whose labors the nation we know today was built.
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.
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
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