Immigration and Terrorism

By Philip Martin
Published in The Social Contract
Volume 12, Number 1 (Fall 2001)
Issue theme: "Garrett Hardin: an introduction and appreciation"
http://www.thesocialcontract.com/artman2/publish/tsc1201/article_1016.shtml



On September 11, 2001, four commercial planes were hijacked in the US. Using the planes as bombs, the hijackers flew two into the World Trade Center in New York City; one was flown into the Pentagon in Washington DC, and the fourth crashed in Pennsylvania. Over 6,000 people were killed, most when the World Trade Center collapsed. The FAA immediately grounded all US planes to prevent further attacks.

The 19 men who hijacked the planes were foreigners who had been in the US from a week to several years. At least 16 entered at US ports of entry, with student or tourist visas; some of their visas appear to have expired before September 11, 2001. About half of the 8.5 million unauthorized foreigners in the US similarly entered with seemingly valid visas, but did not abide by the terms of their visa by e.g. departing within 90 days.

Osama bin Laden, a Saudi whose citizenship had been revoked and who has been living in Afghanistan, was believed to have financed and supported the hijackers through his Al Qaeda network. The US and its allies pledged to find and bring bin Laden to justice, and to dismantle Al Qaeda and other terrorist networks.

The federal government has already made some changes in immigration provisions in response to the terrorist attack. For example, foreigners in the US who violated immigration laws can now be held from 48 hours without charge, and the Bush administration is seeking the authority to hold legal and illegal foreigners suspected of terrorist activity without charges for as long as a week.

President Bush created a new Homeland Security Council with 100 staff members, comparable in size to the National Security Council staff, to help 46 federal agencies coordinate counterterrorism efforts and prevent terrorist attacks in the future.

There will likely be congressional action as well. In response to the 1993 bombing of the World Trade Center and other terrorist strikes, including the Oklahoma City bombing in 1995, Congress in 1996 enacted the Anti-Terrorism and Effective Death Penalty Act of 1996.

Immigration policy reforms will not prevent all terrorism, but they are a key part of any comprehensive approach to combat terrorism. Immigration policies and procedures should seek to identify, deter the entry of, and, to the extent possible, apprehend terrorists for criminal prosecution, in keeping with internationally recognized standards for protection of civil liberties and civil rights. After discussing the limits of current immigration policies in deterring terrorism, this paper outlines a number of areas of potential reform that could help prevent the entry of foreign terrorists. These include visa and border inspection procedures, interior controls, and removal policies. Specific attention is given to issues involved in tracking foreign students and the debate over harmonizing US and Canadian immigration and refugee policies in order to preserve a relatively open Canada-US border.

Immigration Policy Reform Challenges

The recent history of the September 11 hijackers' behavior has shown the problems in US immigration policy that permit terrorists to gain entry.

First, it appears that, when they entered the US, all the hijackers presented travel documents at US ports of entry. Although their names were checked against computerized "look-out" systems, they were able to obtain visas at US consulates and pass through inspection at ports of entry. It appears that intelligence about at least two of the suspected hijackers was not shared with immigration and consular authorities until after they had entered the country.

Second, a tightening of the procedures used to screen those entering legally would not necessarily have prevented the entry of the terrorists. The "back door" of illegal entry across the borders with Mexico and Canada remains relatively open and accessible to would-be migrants. Although the vast majority of those who enter illegally do so for work purposes and pose no security threat, the vulnerabilities in border controls that permit large-scale unauthorized migration can be exploited by terrorists.

Third, the activities of the hijackers illustrate the fact that the US does not track the movements of foreigners in the US. For example, one hijacker was admitted to the US to study English, but never showed up at the school that admitted him. There were no consequences. The INS procedure for notifying a school that a student has in fact arrived in the US takes six months or more to get to the school, and several more months for the school to respond to the INS. The INS must then decide what priority to place on locating a foreigner who arrived in the US, but did not engage in the activities permitted by his or her visa. Real-time tracking of foreigners in such situations would be difficult and expensive.

Fourth, the hijackings highlighted differences in the treatment of individual foreigners across countries, as exemplified by the different treatments of some of the hijackers in Germany, Canada, and the US, and the inability of immigration and law enforcement data systems to communicate within and between governments.

The National Commission on Terrorism, in a 2000 report, concluded that, "In spite of elaborate immigration laws and the efforts of the Immigration and Naturalization Service, the United States is, de facto, a country of open borders." Colin Powell, US Secretary of State, said that "individually and collectively, we must take concrete steps to tighten border controls, enhance air and seaport security, improve financial controls, and increase the effectiveness of our counter-terrorism forces." However, former INS General Counsel David Martin cautioned that "There isn't a magic bullet in overall immigration screening or monitoring in this country that provides an adequate response to a small group of very dedicated and clever people who want to commit terrorist acts."

In addressing some of the problems identified in immigration policy, trade-offs may need to be made between enhanced security and a range of other public goods, including privacy and respect for civil liberties. Immigration policy changes for the longer term require thoughtful consideration of these tradeoffs.

On the one hand, openness to outsiders allows the receiving society, as well as the foreigners, to benefit from new ideas, energies, and creativity. On the other hand, some of those who enter may be intent on destroying their new host society. Governments will have to find new ways to balance the good of taking in desirable foreigners with the sometimes competing good of public safety and security by finding mechanisms to deter the entry and hopefully apprehend those who pose a security threat.

US Supreme Court Justice Sandra Day O'Connor in September 2001 said that, in response to terrorism, 'we're likely to experience more restrictions on our personal freedom than has ever been the case in our country.' She asked "at what point does the cost to civil liberties from legislation designed to prevent terrorism outweigh the added security that that legislation provides?"

Visas and Entry Inspections

Discussion of how to prevent terrorists from entering the US has focused primarily on the "front door " issuance of visas and inspection of foreign nationals at ports of entry. The US issued 7.1 million visas to foreigners in FY00; another 2.4 million applications for visas were denied. Most of the 31 million plus foreigners who enter the US temporarily each year do so without visas under reciprocal visa waiver policies that permit nationals of 29 countries to enter the US for up to 90 days without visas. In addition, no visas are required of Canadians entering the US, while Mexicans living in the border region are admitted with Border Crossing Cards that permit limited travel in the US. Entries through land ports of entry are particularly numerous, with about 500 million crossings each year.

Some 1,100 consular officers in more than 200 consulates and embassies worldwide issue visas to foreigners seeking to enter the US. Most consular officers are at the start of their foreign service careers. They often have only a limited time to review visa applications, limited access to law enforcement look-out databases, and no effective feedback on the results of their decisions, such as who returns from the US and who does not. Improved visa issuance procedures cannot stop all terrorists. One of the hijackers was believed to be a recently naturalized French citizen who entered the US under the visa waiver program.

A similar situation exists regarding immigration inspectors at US ports of entry. They too have limited time to review documents, particularly at land ports of entry. Unlike members of the Border Patrol and immigration investigators, they are not law enforcement officials and, as such, do not have access to some of the information in criminal databases.

The INS maintains the National Automated Immigration Lookout System, or NAILS, and the INS, Customs and the State Department use NAILS to screen foreigners seeking visas or entry to the US. These are name-based systems that are effective only if an applicant for admission uses a name that has already been entered into the database, so that false names, supported by fraudulent documentation, can fool them. Improved look-out databases must be capable of matching not only names, which can be easily changed, but also biometrics as fingerprints and facial characteristics.

One area of concern is the ability of consular officers abroad, INS inspectors at ports of entry, and police inside the US to access all the information available. For example, NAILS does not receive information from the FBI's National Crime Information Center, the major US criminal database. The timely sharing of information among intelligence, law enforcement and immigration authorities is also less than perfect-the names of at least two of the hijackers were provided to INS, but only after they had entered the US.

Finally, the US will have to debate the use of profiling in screening at consulates abroad, at US ports of entry, and within the US. Profiling can use limited enforcement resources more effectively if, as former INS General Counsel David Martin said, "racial or ethnic characteristics do correlate with the targeted behavior."

Three questions need to be asked to judge the propriety of profiling (1) How important is the government interest in using the profile? (2) Is the visible characteristic to be singled out predictive of the ultimate characteristic to be targeted. For example, if officials are screening passengers with the aim of identifying those with terrorist intent, is their rate of success better if they give special attention to Middle Eastern men? (3) How burdensome is the action that follows the profiling? Martin says, "If it's a matter of searching bags a little more closely if they're carried by Middle Eastern males at airports, then the burden may not be excessive. If it's a flat rule that no one of Middle Eastern ethnic appearance can board an airplane, then it's much more intrusive, and almost surely wrong."

Entry-Exit Controls

At present, the United States does not have satisfactory procedures to document the departure of temporary foreign visitors, students or workers. Foreign nationals who are not permanent residents receive a form, called the I-94, that they are supposed to return when they depart the country. Those traveling by air generally give the forms to airline representatives, who are supposed to turn them over to the INS. Compliance with this requirement is spotty; some airlines are more consistent than others at obtaining and turning over the I-94s. Those entering and exiting the US at land borders are also supposed to turn in forms, but the processes there are even less well developed than at airports. In any event, the forms are completed by hand and cannot be used to track the departure of specific persons until the data are entered into a computer.

Checking the entry and exit of foreigners with temporary visas to determine who among those legally admitted did not depart is one area of possible immigration reform. The INS was required to develop such an entry-exit system by 1996 laws, but did not do so, in part because of opposition from Canada and US border states that feared interference with cross-border migration and trade. There are more than 500 million entries and exits from the US each year by US citizens and foreigners, which makes the concern about inefficiencies associated with entry-exit controls serious.

Technology is available to implement entry-exit controls for those who arrive or depart by air. Some countries use electronic controls. For example, Australia uses an electronic visa that is incorporated into the airline ticket, and this could be a model for a similar US program. Effective exit controls at land borders are more cumbersome, but experiments with commuter lanes on the Mexico-US border that permit officials to pre-screen applicants and issue more secure documentation and devices for automobiles have been shown to speed crossings without sacrificing security, and could be expanded for regular commuters. By allowing more people to enter and exit in commuter lanes, limited resources could be devoted to those who have not been pre-screened.

Border Controls

Even with enhanced security for those entering legally, the relative openness of the US-Mexico and US-Canada borders provide the opportunity for unauthorized entry. In FY00, the US Border Patrol apprehended 1.6 million persons attempting to enter illegally; a large but unknown number of people eluded the Border Patrol and gained access to US territory. The vast majority of these migrants are Mexicans and Central Americans seeking better economic opportunities, but there a growing number of migrants from outside the region are transiting Mexico to enter the United States.

In response to high levels of illegal migration in urban areas of California, Texas and Arizona, the Border Patrol stepped up enforcement efforts in urban areas, adding agents, fences and lights to push migrants attempting illegal entry to more remote areas, such as the desert areas of Arizona. However, there is not yet definitive evidence that stepped-up border controls symbolized by Operation Gatekeeper along the California-Mexico border have reduced illegal immigration. The cost of unauthorized migration has increased, and migrants generally must now use the services of human smugglers.

It would be difficult to stop completely the flow of unauthorized migrants across the border, these movements could be reduced through a generalized application of the deterrence strategy used in urban areas. To accomplish such a reduction, however, would require increased personnel and a new investment in technology. The INS has found it difficult to recruit, train and deploy Border Patrol officers; increasing security on the southern border would additional efforts and funding.

Sanctions, IDs, Detention, Removal

Former INS Commissioner Doris Meissner noted that there is a political consensus that more should be spent on border enforcement, but no consensus on how much to step up interior enforcement efforts.

Because illegal migration has generally been linked to jobs, most strategies to reduce unauthorized entries have tried to reduce the access of unauthorized foreigners to employment. In 1986, the US adopted policies that allow the INS to sanction employers who knowingly hire unauthorized workers, as well as those who fail to check that the workers they are legally authorized to work in the US. These policies have not met with much success, largely because of a proliferation of fraudulent documents that can easily used by migrants to be hired, and that protect employers from sanctions. During the 1990s economic boom, efforts to enforce sanctions were sharply curtailed. With unemployment low, and consumers benefiting from lower prices linked to cheap foreign labor, there were few incentives to reduce levels of illegal migration-and many reasons to tolerate a porous border that allowed unauthorized migrants to enter the US and work.

The most controversial proposal to improve interior enforcement is a national identification system for US citizens and foreigners. In 1994, a federal commission proposed a computerized system to check the social security numbers of all job applicants. A broad coalition opposed the plan, decrying it as a precursor to a national ID card, and this recommendation was not implemented.

The documents most often used by unauthorized migrants to establish that they are US residents drivers' licenses and state ID cards. In the past few years, many states have made it easier for unauthorized migrants to obtain drivers' licenses and state ID cards, under the theory that all drivers should learn the rules of the road and be insured. There may now be a reversal of such policies. Three of the hijackers apparently got Virginia ID cards; Virginia required only a notarized form co-signed by a Virginia resident or a notarized identity form co-signed by a lawyer for an ID. The FBI says that one man near Washington DC helped "100 people during the past four months [to get drivers licenses or IDs], and receives approximately $100 per individual." Virginia says that applicants must now provide a social security number and proof of Virginia residency.

Florida will make licenses and identity cards issued to non-US citizens expire on the same day that their visas expire instead of issuing them for four to six years. Other states are increasing training to detect forged documents that may be presented by applicants, and there is a new effort to develop a central database of licensed US drivers. However, a centralized database still has limitations, since states such as California allow anyone to obtain their own or someone else's certified certificate of birth, which can be used to get a drivers' license.

Legislation passed in 1996 in response to earlier terrorist attacks gave the government significant new authority to detain and remove foreign nationals suspected of terrorism. For example, the legislation permits expedited removal of persons who attempt to pass through ports of entry with no or fraudulent documentation. Unless they request asylum--and it is determined they have a credible case--these foreigners can be removed through administrative orders with no judicial review. The legislation also mandates detention of persons committing certain criminal acts, and it established special procedures to be used in removal hearings if the foreign national is a suspected terrorist or the release of secret information would pose a national security threat.

Legislation introduced immediately after the terrorist attacks on September 11, 2001 would have increased the government's authority to detain and remove suspected terrorists without court review. The new procedures would have applied to legal permanent residents as well as temporary foreign visitors and unauthorized migrants. Many critics of the proposed legislation argued that it would undermine due process and civil liberties with little evidence that the additional measures would reduce the threat of terrorism. Some observed that expedited removal of suspected terrorists only shifted the danger of attack to other countries; they urged the US government to focus on prosecution of those suspected of terrorism.

Foreign Students

There are 500,000 to 600,000 foreign students in the US; 284,000 foreigners received student visas in FY00. About 11 percent are from China, followed by 9 percent from Japan and 8 percent each from India and Korea. There were about 50,000 foreign students in 1970, 300,000 in 1980, and 400,000 in 1990. There are about 26,000 educational institutions in the US that are authorized to issue the documents that a foreign student presents to US consulates abroad to obtain a student visa.

During the late 1970s, when Iranian students in the US protested against the Shah, whom the US was supporting, there were calls for a system to track foreign students in the US. After it was discovered that one of the foreigners involved in the February 26, 1993 bombing of the World Trade Center had an expired student visa, Congress called for a system to track foreign students. US universities opposed a tracking system, and blocked its implementation for a decade. Beginning in Fall 2001, foreign students and exchange visitors will pay a $95 fee to finance the $43 million Student and Exchange Visitor Program tracking system, which is expected to be fully effective in 2003.

Many foreigners apply to US schools, are admitted and use the admission letter to obtain an F student visa, enter the US, but never attend the US school. The INS is supposed to notify the school that the foreigner entered the US, a procedure that can take six to 12 months. This means that, under current practices, a foreigner can qualify to enter the US for a $110 application fee and proof of sufficient resources to study and live in the US. Moreover, there is little monitoring of the thousands of schools participating in the foreign student program to determine that they, in fact, continue to function and provide educational services.

Sen. Dianne Feinstein (D-CA) proposed that entries of foreign students be halted for six months until a new system is in place to do background checks on applicants for student visas. Another senator wants a 30-day waiting period after a student applies for a visa before the visa is issued, so that the INS can do a background check.

Canadian Border or Fortress North America?

Several of the hijackers spent time in Canada. Canada has been criticized for allowing foreigners to enter with false or no passports, apply for asylum, and travel freely and raise funds for political activities while their asylum applications are pending. The Canadian Security Intelligence Service said that 50 groups and 350 people whom it classified as terrorist-related are operating in Canada, and concluded in May 2000 that 'Over the past 15 years, we have witnessed a disturbing trend as terrorists move from significant support roles, such as fund-raising and procurement, to actually planning and preparing terrorist acts from Canadian territory.'

Canadian Prime Minister Jean Chretien met with President Bush on September 24 , 2001 to discuss ways to improve what is being called the North American security perimeter, or Fortress North America. Under one proposal, the US and Canada would maintain a fairly open 4,000 mile border, but Canada would take steps to tighten its immigration and asylum system. However, Chretien said "Canada is a nation of immigrants. We will not allow the terrorists to force us to sacrifice our values or traditions."

There are 8,000 Border Patrol agents on the US-Mexican border, and 300 on the US-Canadian border. While a long-term North American security perimeter is debated, Congress is considering a plan to triple the number of Border Patrol agents on the Canada-US border to 1,000 and the number of immigration inspectors stationed near Canada to about 1,500. Currently, there are as many Border Patrol agents in Brownsville, Texas, as there are on the entire U.S.-Canadian border. Some Canadians say that Canada should give the US what it wants to make North America safer, even if that means a loss of Canadian sovereignty and tougher immigration and asylum laws. In one poll, 59 percent of Canadians said they would give 'up some of our national sovereignty if it increased overall security in North America.'

U.S. ambassador to Canada Paul Cellucci in September 2001 called for harmonization of Canadian and US immigration and asylum policies, hinting that longer waits at the border will be the price of not developing a North American 'security perimeter' that would require Canada to tighten is immigration, visa, asylum and antiterrorism policies to conform to those of the United States. One prominent Canadian said "Americans are saying to us We're not confident that you have a regime in place which makes it possible to open up the Canada-U.S. border more, because you're letting people into your country who we wouldn't let into ours."

Preparation of an earlier attempted terrorist attack on the US was made in Canada. In December 1999, Ahmed Ressam, an Algerian, was caught attempting to enter the US from Canada with bomb-making materials that he planned to use to bomb the Los Angeles International Airport. Ressam arrived in Canada in 1994, applied for asylum and was rejected, but despite several arrests on charges of breaking into automobiles, was not deported because Canada stopped deporting Algerians in 1997. In 1999, he obtained a Canadian driver's license and passport under a false name with a forged baptismal certificate.

In 2000, almost two-thirds of the foreigners who applied for asylum in Canada traveled from the US, and Canadian officials predicted there would be an upsurge in asylum applications from foreigners in the US as the US investigation into those suspected of helping the terrorists widened. Canada acknowledged in September 2001 that it had lost track of 27,000 rejected asylum seekers over the past five years. The United States also knows little about the current location of the thousands of asylum seekers whose cases have been rejected.

Section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 required the INS to develop by October 1, 1998 a system for recording the exits and entrances of foreigners at all US borders. Under pressure from Canada and northern US border states, the Senate voted three times to repeal that provision; the House has not done so, but the system has not been implemented. The INS is trying to devise a cost-effective entry-exit system that will not slow legitimate cross-border traffic. Some 130 million persons crossed the 4,000 mile, 6,400 km Canada-US border in FY00.

The major argument against entrance/exit checks is that they would slow trade at great economic cost. The US and Canada do $1.5 billion worth of two-way trade a day, and 90 percent of Canadians live within one hour of the US border, so they make frequent trips into the US for work or shopping. After September 11, 2001, delays for trucks crossing the Canada-US border increased from one to two minutes to 10 to 15 hours.

International Cooperation?

Globalization was the defining feature of the late 20th century, with world trade rising to reach 26 percent of the world's $30 trillion global GDP. Globalization means cross-border connectivity, including easy trade, financial and flows of the people needed to keep international supply chains and transnational companies humming. Terrorism that requires a reversal of the gradual opening of borders, and a shifting of spending away from productivity-enhancing investments and into security investments, may act as a tax that slows globalization as well as economic and job growth in the developing countries from which many terrorists come.

Preserving the global economy requires cooperation to prevent migrant terrorists from moving from one country to another. This in turn requires international cooperation to share information about terrorists among intelligence, law enforcement and immigration agencies, such as between US, Canadian, and EU agencies, and eventually with other countries committed to reducing the terrorism that might otherwise lead to closed borders and long queues.

International cooperation is also needed to combat the growing smuggling and trafficking operations that could be used by terrorist organizations to move persons clandestinely. Although the majority of migrants who utilize such operations do not pose a security risk, the vulnerabilities in immigration control that allow these operations to flourish are also vulnerabilities that terrorists could readily exploit for their own movements.

About the author

Philip Martin and Susan Martin

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