Three Ways to Stop Foreign Terrorists

By James Walsh
Volume 12, Number 2 (Winter 2001-2002)
Issue theme: "The terrorists among us"

Three ways to stop foreign terrorists include lobbying for twenty-first century immigration laws, demanding their enforcement, and selecting strict constructionist judges.

To date, whenever the United States has strayed from the Constitution, a historical event has occurred demanding a correction of our course. The September 11 terrorist attacks are surely such an event. Recent years have witnessed a blurring in the separation of powers of the federal government, in no area more than in immigration.

The Congress, whose charge it is to pass legislation beneficial to all people in the nation, instead has produced muddled, unenforceable immigration laws, tailored to appease special interests. In turn, lobbyists of these interests -- businesses, farm and grower associations, immigrant rights groups, civil rights groups, and some religious groups -- have supported the election campaigns of open-border advocates. The Congressional record speaks for itself; in recent years, each time Congress has drafted a tough immigration bill, special interest lobbyists have rallied their forces to weaken it.

The Executive Branch has fared no better. Over at the U.S. Justice Department, the Immigration and Naturalization Service (INS) and the Border Patrol have abdicated their enforcement responsibilities. By default, they have legalized the illegal entry of foreign nationals into the United States.

Aggravating the situation are federal court decisions that block enforcement of constitutional laws. Such rulings are the specialty of judicial activists intent on setting U.S. immigration policy from the bench. These activist judges place themselves above the founding fathers, as they attempt to usurp the legislative prerogative.

Illegal Entry

How are foreign nationals managing to enter the United States illegally and without valid documents? Those who slip across U.S. borders evade inspection at any port of entry. Others enter on valid documents but then overstay the expiration date on travel, student, or work visas. Some enter on valid documents obtained by illegal means, such as fraud, deceit, or theft. Most Hispanic and Chinese illegal aliens pay large sums to alien smugglers, vicious criminals who escort them across U.S. borders. Arab illegal aliens, for the most part, overstay visas, although some use fraudulent documents at airports of entry, and others cross the land border from Canada. Our neighbor to the north has had a relaxed attitude toward Commonwealth passports, that is, passports from nations that were formerly English crown colonies. These include Afghanistan, Pakistan, India, Bangladesh, Ceylon, and most of sub-Saharan Africa. European and many Asian illegal aliens overstay their visas, with a few crossing U.S. borders on their own.

When asked, the American people are solidly against illegal entry. They want visas tracked and U.S. borders secured. Contrarily, the federal government has heeded special interests that challenge the majority view. As voters and taxpayers, U.S. citizens have the power to put the government back on the course set by our founding fathers -- a course that has made the United States of America the oldest democracy in the history of the world. The recent terrorist attacks demonstrated that we foolheartedly risk our democracy by pandering to immigrant special interests.

Getting Congress Back on Track

For the past 30 years, on an annual basis, Congress has produced a jumble of immigration amendments pushed by immigrant lobbyists rather than by the majority of U.S. voters. Immigrant special interest groups have their own agendas, many of which subordinate the security of the nation. One school of thought is that Congress intentionally has made immigration a permanent circus, so as to placate lobbyists and allow them to gain new ground for their clients with each legislative session.

Overlooked is the fact that illegal aliens, by their very presence, regardless of method of entry, are committing a felony. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) was passed to crack down on alien criminals and to expedite deportation. One of its provisions authorized an Institutional Removal Program (IRP) to deport the worst of the convicted criminals in this country illegally. When immigrant lobbyists complained, Congress once again reversed its position. In the aftermath of the World Trade Center attacks, the three-card-Monte that Congress has played with immigration must end. The immigration street swindle is no longer a benign and beguiling pastime of would-be Robin Hoods.

Congress finally must measure the weight of illegal immigration, and the tonnage of the World Trade Center rubble is a damning indictment that demands the following remedies:

Put public health first. Terrorists have the ability to introduce contagious diseases by means of infected persons as well as bioterrorist weapons. Require medical clearances for all visas, for all asylum applicants, and for all those detained as illegal aliens. In the past, legal migration and visa travel required health clearances, and many a person was returned immediately from Ellis Island to the port of embarkation for medical reasons. Foreign nationals, who slip in across our borders, come with no bill of health.

Make enforcement a national effort. Require all federal, territorial, regional, state, and local officials to ask the immigration status of all foreign nationals with whom they deal and to immediately report known or suspected undocumented aliens to a secure federal database. Throughout the nation, government officials at various levels are ignoring U.S. immigration laws to the point of contempt. For instance, a California assemblyman introduced a bill to allow illegal aliens to legally obtain driver licenses, and the sheriff of Los Angeles devised a plan to shield illegal aliens from deportation. Such defiance of U.S. law is unacceptable. Congress can make it a criminal offense for government entities to fail to report all undocumented aliens.

Institute a national identity card. Use corneal prints, fingerprints, or other technology to establish the true identity of all foreign nationals seeking to enter this country. National security depends on personal security. The precedent for national ID cards has been set by unsecured documents such as driver licenses and social security cards. For law-abiding citizens and foreign nationals, national ID cards will entail no loss of freedom or civil rights, and they will help secure U.S. transportation systems and homeland security.

Raise visa standards. In the past, the U.S. State Department, which issues visas, often assigned young consular officers to this task. The war on terrorism requires experienced consular officers in the field to train young officers in handling visa applications by foreign nationals wishing to travel, work, or study in the United States. Centralize visa applications at one consular office in each country and enter all information into a secure database, beginning with the application process and tracking all subsequent information. Check all visa applications against immigration and terrorist watch lists. Track visa applications by code, including a corneal print or fingerprint for each applicant. Set visa application fees to cover the cost of security measures necessary to block the sale of forged documents rampant throughout the world. The task force named by President George Bush to "tighten up the visa policy" can close many potentially dangerous loopholes.

Institute a Foreign Worker Program. Long overdue is a new immigration program to legalize workers, who now enter the country illegally. Congress is discussing the feasibility of a modern version of the World War II Bracero Program that legalized temporary entry of Mexican workers. An updated worker program could issue bona fide foreign workers a visa to enter the United States for a fixed period, such as nine months a year, renewable on a year-to-year basis. Such workers would be guaranteed a minimal wage; they would contribute to Social Security and income taxes, and would be eligible for related benefits.

Reorganize the INS. Long treated as the stepchild of the U.S. Department of Justice, the INS needs some respect, but it wonĄŻt happen without reorganization and a defined mission. As it stands now, INS has dual and conflicting missions enforcement (deporting criminals) and benefits (awarding citizenship). Transfer immigration enforcement to a new federal interdepartmental agency, combining the INS and Border Patrol (Justice Department) with the U.S. Customs Service (Treasury Department). The new agency also would include immigrant medical exams by the U.S. Public Health Service (Health and Human Services Department) and plant and animal inspections (U.S. Agriculture Department).

Place immigration benefits in the U.S. State Department, which already issues visas. These five agencies currently have a hand in immigration but often work at cross purposes and fail to share intelligence. Reorganization is essential in our War on Terrorism.

Expedite deportations. Begin deportation hearings on all foreign nationals without proper documentation within 72 hours of detention. Curtail the many avenues of appeal and repeated appeal. The U.S. Constitution does not mention special rights for immigrants, and one concise appeal time period and procedure is just. Simplify immigration laws by doing away with such legal-quagmire concepts as "exclusion" and "entry without inspection" that have helped create the current immigration free-for-all. Aliens contemplating illegal entry and the alien smugglers they pay will get the message that no longer can they depend on decade-long delays for asylum claims, legal appeals, and situational claims of constitutional rights. The United States is in a War on Terrorism, and a precedent exists for expedited deportation hearings in wartime.

Ending the Lapse in Enforcement

Before September 11, 2001, there was no concerted effort by federal agencies charged with the enforcement of immigration laws. Years of constant tinkering with U.S. immigration laws have led to a disarray of federal regulations used in implementing the statutes. The result is mixed signals and contradictory directives, top to bottom, with administrators and field personnel hesitating to take any action.

State and local governments, seeing that federal agencies do not cooperate to enforce immigration laws, have chosen to turn their backs on the issue, forbidding their personnel to ask the immigration status of foreign nationals receiving benefits and services. With governmental entities failing to enforce immigration laws, how can private groups and individuals be expected to report immigrant irregularities? End this nation-wide lapse in enforcing immigration laws. The President, who directs the federal agencies, and the Congress, which has oversight and funding power over the agencies, must be tough taskmasters. Make the laws clear and require accountability


Corralling Judicial Activism

Federal judges have the authority to declare U.S. immigration laws unconstitutional. Short of that, they exceed their authority by blocking the enforcement of existing laws. It is the responsibility of Congress to amend or replace laws. Immigration legislation, if constitutional, is the law of the land and must be enforced, and no judge should stand in the way. The United States and the United Nations recognize five categories for asylum claims persecution because of race, religion, nationality, membership in a particular social group, or political opinion. Rulings by federal judges who would add gender issues such as homosexuality and female mutilation exceed their authority.

Reclaiming Our Constitutional Rights

Congressional gamesmanship, bureaucratic ineptness, and judicial activism have opened the floodgates to a massive wave of illegal entries. Numbers vary, because currently the nation has no inter-agency database to track foreign nationals, legal or illegal. The recent census projects that eight million undocumented foreign nationals currently reside in our nation. Off-the-cuff estimates by the U.S. Border Patrol put the actual total at three times that number. Until the Census figures were released, the INS placed the number of undocumented foreign nationals at four million. Although the State Department reports that 500,000 foreign students are in U.S. colleges, there is no federal requirement for colleges to keep and report attendance records of these aliens.

It is high time for us to reduce illegal entries by streamlining immigration and visa laws, by enforcing these laws, and by selecting judges who interpret our laws rather than write them.

The ease with which men, women, and children enter our nation illegally has led to a flagrant disrespect for all U.S. laws and for the United States itself as a nation. Undocumented aliens have roamed our streets, safe in the knowledge that it was politically incorrect for anyone, in any capacity, to question, let alone, challenge their immigration status. Today, national security has become a mandate to protect our homeland and to right an egregious wrong -- partly the result of our failure to take immigration seriously.

About the author

James H. Walsh served as Associate General Counsel of the U.S. Immigration and Naturalization Service, 1983-1994. He was selected as a German Marshall Fund Scholar on Immigration in 1986 and continues to write on immigration issues.