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CONTROLLING IMMIGRATION AND FIGHTING TERRORISM: THE UNCERTAIN CONNECTION - Wayne A. Cornelius

The nineteen foreign terrorists involved in the September 11, 2001 attacks succeeded in turning immigration into a "national security" issue, for the first time since the "Great Red Scare" in the years right after World War I, when the issue was importing Bolshevism, anarchism, and militant trade-unionism from Russia and Eastern Europe. In the post-9/11 era, the argument that lax immigration control makes the country more vulnerable to terrorism has been made explicitly and incessantly by groups like the Federation for American Immigration Reform (FAIR) and the Center for Immigration Studies (CIS).
The notion that restricting immigration is essential to enhance national security has been used by the federal government in the last three years to justify a wide range of immigration control measures. The centerpiece is the USA Patriot Act, which among many other things requires the FBI to share its criminal data bases with immigration authorities and visa-issuance officers in U.S. Consulates and Embassies abroad (something that Congress mandated back in 1996, but by 9/11, it still hadn't happened). The Patriot Act also allows the federal government to detain foreign-born people indefinitely, without charges, and to deport them through secret hearings.
The 9/11 attacks have also been used to justify workplace sweeps targeting immigrants who work in sensitive places. For example, "Operation Tarmac" detained about 800 airport workers – cleaning women, catering truck drivers, and baggage handlers. "Operation Game Day" targeted Immigrants who worked at or near the Super Bowl game in San Diego last year. Not a single suspected terrorist was found among the immigrants rounded up in either of these worksite enforcement operations. Those who were arrested and deported were accused only of violating immigration laws.
A "Foreign Terrorist Tracking Task Force" was created by the Justice Department, charged with locating and interviewing thousands of Middle Eastern or Muslim men, and with rounding up all aliens who are still at large after having been received deportation orders. Because the Homeland Security authorities do not have reliable addresses for more than half of the aliens on its "suspects" lists, the Task Force's round-ups have been less than a brilliant success.
There has also been a post 9/11 crackdown on foreign student visa-holders. All colleges and universities are now required to report regularly to the Justice Department on the enrollment of foreign students, the courses they take, and so forth. Foreign graduate students have had their lives complicated considerably. They now have to undergo background checks lasting several months before they can get a student visa. There are stringent new limits on how much they can earn as research assistants (perhaps to keep them from accumulating money for flying lessons). Not surprisingly, foreign graduate students are seeing U.S. universities as much less welcoming than those in other countries. Sixty percent of U.S. research universities have reported a significant drop in foreign grad student applications in 2004. At some universities, foreign graduate student applications are down by 30-35%.
Congress also mandated the creation of a "National Security Entry-Exit Registration System," which includes the "special registration" of all nationals of a specific group of predominantly Muslim countries who are living in the United States. Any of them who are found to be "out-of-status" (for example, holding an expired visa) are subject to immediate deportation.
This "special registration program" started with nationals of five countries: Iran, Iraq, Libya, Sudan, and Syria. Most of those detained in California were Iranians, which provoked an uproar because there is a large, politically well-connected Iranian-American community in this state. After a couple of months, nationals of 13 additional countries were required to present themselves for interviews. The special registration program is supposed to be expanded to include nationals of all other countries by the end of this year. But however inclusive it may be at the end, the special registration program has re-legitimated the use of profiling by national origin, ethnicity, and religion as a tool of U.S. immigration control – for the first time since the 1924 immigration law.
On January 1, 2004, the federal government implemented the "US-VISIT Program," which requires all foreigners entering the U.S. on short-term visas at airports or other legal ports-of-entry to be fingerprinted and photographed, both at the time of their arrival and on departure from the U.S. The "arrival" part of US-VISIT is operational, but only at airports; the "exit" part is still on the drawing board, and I strongly suspect it will not be ready by the end of this year, as announced. The only foreign visitors exempted from this documentation process are those coming from the 23 countries for which the U.S. does not require visas (mostly West European countries, Japan, and Canada). Mexicans who hold local border-crossing cards ("laser visas") may be exempted when the US-VISIT system is extended to land border crossings by the end of 2004.
More generally, non-immigrant visa procedures have been tightened significantly since 9/11. Since August 2003, nearly all prospective short-term visitors to the U.S. have had to submit to interviews at U.S. consulates in order to get a visa. Since October 2003, even visitors from the visa-waiver countries have been required to have machine-readable passports. And beginning in October 2004 they will need high-tech passports with biometric identifiers embedded in them.
The federal government has also dusted off a law passed in 1940, but never enforced, requiring all non-citizens to report any change-of-address to the immigration authorities within 10 days. The fact is that the federal government does not know where the majority of foreign nationals are living. In November 2002, the U.S. General Accounting Office did a study of more than 4,000 aliens from Middle Eastern countries that the Department of Homeland Security was supposed to have located and interviewed. Forty-five percent of them could not be located, because the government lacked reliable addresses for them. Thus far, however, the outcome of enforcing the 1940 law has been that millions of change-of-address forms are accumulating in Homeland Security storage facilities – unprocessed.
There have also been some important legislative consequences of 9/11 at the state level. Most famously, in August 2003 California passed a law enabling undocumented migrants to get a driver's license, then repealed it only a few months later, ostensibly on national-security grounds. There have also been numerous proposals in state legislatures to prohibit government agencies and banks from accepting, as proof of identity, the ID cards that have been issued by Mexican consulates to Mexican immigrants, regardless of their legal status in the United States. This so-called "matrícula consular" has been around for over 100 years. It is widely used by Mexican immigrants to open bank accounts and transact other kinds of private-sector business.
The "matrícula" only became politically controversial in the post-9/11 era, when immigration restriction groups and members of Congress began agitating against it on national security grounds, calling it a totally unsecure form of identification that could easily be exploited by terrorists. (This is, in fact, the position of the Department of Homeland Security, as articulated by Asa Hutchinson.) One of the ironies of this debate is that the "matrícula consular" is loaded with high-tech security features. It is actually much more counterfeit-resistant than the driver's licenses issued by most U.S. states.
Border enforcement is also viewed now as a key element of U.S. anti-terrorism strategy, even thought not one of the 19 terrorists who carried out the September 11 attacks had entered the U.S. clandestinely. Nearly every piece of anti-terrorism legislation enacted by the U.S. Congress since 9/11 has included major new funding for Border Patrol agents and hardware enhancements for border enforcement.
The latest initiative is a multi-year Border Patrol project to triple-fence the 14-mile segment of the U.S.-Mexico border running from the Pacific Ocean to the Otay Mesa border crossing. Certain segments of this border already have three closely-spaced fences with access roads separating them. One of San Diego's Congressmen, Duncan Hunter, is crusading to complete the job, on the grounds that triple-fencing is needed to prevent terrorists from entering San Diego County and attacking U.S. Navy ships in the harbor. The California Coastal Commission recently rejected the project because it would do severe damage to wildlife habitats along the border, but Congressmen Hunter is pressing the Bush administration to overrule this state government agency and proceed with the project.
Some hard, practical questions must asked about this and all of the other immigration control measures that have been implemented since 9/11, in the name of "fighting terrorism." For example, the "US-VISIT" system wouldn't have prevented 9/11 if it had been in place at the time, because we did not know who the terrorists were. The system involves computer-matching of entry and exit records against a "watch list" of known or suspected terrorists. The 9/11 terrorists would still have gotten in, because none of them were in the government's data base of terrorists.
More generally, it is arguable how much additional, genuine security is being gained from investments in various forms of immigration control. Do any of these measures really make it more difficult for a determined terrorist to enter the country, and stay here? Several of the post-9/11 immigration control measures, like US-VISIT and the enforcement of the alien change-of-address law, are flooding the government with data of dubious relevance to screening out terrorists. Will these measures actually increase the probability of finding the needles in the haystack, or are they just enlarging the haystack?
Other kinds of anti-terrorism measures may be a lot more cost-effective than general-purpose immigration controls. For example, we could be investing a lot more in developing data bases: making sure that we know who the "bad guys" are, and making sure that they are in the federal government's data bases. We could be beefing up staffing for U.S. embassies and consulates, to make it possible to screen short-term visa applicants more rigorously. We could be providing more staff for inspections at legal ports-of-entry, to detect fraudulent document use. It is through these ports that would-be terrorists are likely to enter – not through the deserts and the mountains, like undocumented migrants. Finally, we could be assisting foreign governments to do a better job of screening airline passengers at their airports. The Department of Homeland Security is beginning to implement this kind of program, but the number of agents that they are thinking of posting at each participating foreign airport is trivial (six or seven at most).
In short, what we have in the post-9/11 era in the United States is a very tight, politically drawn nexus between immigration control and anti-terrorism efforts, which is generating major new expenditures by the federal government but yielding only meager enhancements in national security.