By Michael Boos
If there was any doubt that foreign terrorists pose a major threat to the sovereignty and security of the United States, such doubt was laid to rest on September 11, 2001. Few Americans will ever forget the horrific scenes of the World Trade Center towers collapsing, or of the gaping, smoldering hole in the side of the Pentagon. On that Tuesday morning close to three thousand people, most of whom were Americans, died at the hands of foreign terrorists from Osama Bin Laden’s al-Qaeda terror network.
Among the many disturbing facts to surface in the aftermath of the attack was confirmation that each of the 19 terrorists on board the four commandeered aircraft entered the United States lawfully. But the September 11 hijackers were not the first foreign terrorists in recent years to gain easy entry into the United States. As documented in the body of this report, would-be terrorists have frequently gained admission through loopholes and lax enforcement of our nation’s immigration and border control laws and procedures.
Given the depth of the September 11 tragedy, it is not at all surprising that the nation is focused on homeland security and the related issues of border control and immigration reform. Various interests including the Bush Administration, congressional leaders and immigration control groups have come forward with initiatives and proposals to keep the terrorists out of our country. Some of the proposals, such as more funding for border patrol and increased vigilance in processing visa applications, have garnered overwhelming support. Other ideas including a national ID program and a ban on visas for certain nationalities remain quite controversial.
This special report examines the major border control and immigration reform proposals that have been suggested in the wake of the September 11 attacks. The report begins with an overview of how foreign terrorists have gained entry into the United States in recent years. In the next section, the report highlights key aspects of the major proposals and initiatives that have been offered to keep the terrorists out, and includes discussion of key objections that have been raised. The report closes with the author’s analysis of the leading proposals and includes recommendations that he believes will make it more difficult for terrorists to get in, while minimizing the burdens imposed on the American people.
I. LOOPHOLES & LAX ENFORCEMENT MAKE FOR EASY ENTRY AT THE BORDERS
As illustrated by the examples that follow, foreign terrorists have frequently gained easy admission into the United States. All too often they have gotten in due to lax screening of their visa applications, loopholes in the admission process and human error. Even when they are caught trying to gain entry unlawfully some would-be terrorists have been released from custody and allowed to remain here pending the outcome of deportation proceedings.
A. The September 11 Hijackers
Among the early facts to come to light concerning the September 11 attacks was confirmation that each of the 19 hijackers who were on board the four commandeered aircraft entered the United States lawfully. Fifteen of the hijackers entered the country on tourist visas; three came in on business visas; and one used a student visa to gain entry. In addition, it was quickly learned that 15 of the hijackers obtained their visas in Saudi Arabia; two came from the United Arab Emirates; and one each was from Egypt and Lebanon. 1
The hijacker who entered the country on a student visa was a twenty-six year old native of Saudi Arabia named Hani Hason Hanjour. He was admitted in November 2000 in order to study English at Holy Names College in Oakland, California, but never enrolled at the school. 2 On August 1, 2001, Hanjour was stopped for driving 55 mph in a 30 mph zone in Arlington, Virginia. 3 At the time, he held a valid Florida driver’s license, but was in the United States unlawfully because he never enrolled in college pursuant to the terms of his student visa.
Of the other eighteen hijackers, the most significant information currently available concerns the alleged ringleader, Mohamed Atta.
Atta, an Egyptian native, first entered the United States in June 2000 on a tourist visa that he obtained in Berlin, Germany. While in transit to the United States he is reported to have stopped over in the Czech Republic where he is said to have met with a high-ranking Iraqi intelligence official.4
Several months prior to his arrival in the United States, Atta and two of his September 11 accomplices reported their passports stolen while they were in Hamburg, Germany. U.S. officials now speculate that this was a rouse to cover-up evidence of their travel to countries such as Afghanistan, which might have caused suspicion with consular officials.5
In May 2000, Atta used a newly issued United Arab Emirates ("UAE”) passport to obtain a tourist visa from the U.S. Consulate in Berlin. The tourist visa allowed him to visit and remain in the United States until December 2, 2000.6
Shortly after he arrived in the United States, Atta applied for a change in visa status to that of a trainee in order to attend flight school.7 But he did not wait for approval of his application to enroll. Within a month of his arrival he was taking flight-training classes at Huffman Aviation International Flying School in Venice, Florida.8
On December 2, 2000, Atta’s tourist visa expired.9 But he did not leave the country for another month.
It was not until January 4, 2001, a month after his visa expired, that Atta left the United States. He flew to Spain, but eventually he made his way to the UAE, where he was reportedly detained when his name appeared on a terrorist alert list.10 Despite this listing, Atta was released by UAE authorities and allowed to return to the United States on January 10, 2001.11
When he arrived at Miami International Airport without a valid visa, Atta was sent to secondary inspection. Following a check of the Interagency Border Information System database, he was admitted by the INS based on his pending application for trainee visa status.12
By July 2001, immigration authorities approved Atta’s application for a change in status. Although his flight instruction had already been completed, the new trainee visa allowed him to lawfully remain in the United States until November 2, 2001.13
With the new visa in hand, Atta once again left the country for Spain. He returned to the United States on July 19. Some time after his return, Atta was placed on the Justice Department’s "Watch List” of suspected terrorists.14 But despite the listing, his visa was never revoked.
B. 1993 World Trade Center Bombers
Shortly after the September 11 attacks, the Federation for American Immigration Reform ("FAIR”) published a chronology of recent terrorist activity aimed at the United States. Among other things, the FAIR chronology documents how three of the terrorists who helped plot and carryout the 1993 attack on the World Trade Center gained entry into the United States.
The following is FAIR’s account of their entry: Under the influence of Sheik Omar Abdel Rahman, Ramzi Ahmed Yousef organizes Mohammed Salameh and three others in plotting and carrying out a bombing at New York’s World Trade Center that caused mass destruction, six deaths and more that a thousand wounded. The group is comprised of Egyptians and Palestinians. Yousef, traveling on an Iraqi passport, entered the United States in September 1992 without a visa, but was allowed to enter the country provisionally after asking for asylum, because of lack of detention space. His companion, a Palestinian named Ahmad Ajaj, who arrived on a fake Swedish passport, was arrested and found to have bomb making videos and manuals in his luggage. Salameh entered the United States in 1988 on a Jordanian passport and a visitor’s visa issued in Amman, Jordan. He applied for legal residence status (presumably asylee status), was turned down, and continued to be in the country on appeal of that decision. Abdel Rahman, an Egyptian religious leader charged with inciting a 1989 riot in Egypt, obtained a visa in Khartoum, Sudan which had no automated lookout system that would have identified him as a security threat. He entered as a tourist and applied for political asylum and received legal residence. An immigration judge ordered him deported in March 1993, but he was still in the country four months later when he is arrested for terrorist acts.15
C. Would-Be Attackers of the New York Subway System
In March 1998, the Justice Department’s Office of Inspector General released a special report entitled "Bombs in Brooklyn: How the Two Illegal Aliens Arrested for Plotting to Bomb the New York Subway Entered and Remained in the United States.” 16 The report provides disturbing details on the manner by which two would-be terrorists entered the United States in the mid-1990s in order to carry out a plot to bomb the New York City subway system.
The following narrative summaries the OIG’s description of how Gazi Ibrahim Abu Mezer ("Mezer”) and Lafi Khalil got in:
Mezer was born in the West Bank of Israel. In 1993, he traveled to Toronto, Canada on a student visa. Shortly after arriving there, Mezer applied for refugee status claiming a fear of persecution in Israel.
Between June 23, 1996 and January 14, 1997, Mezer was apprehended three times attempting to make unlawful entries into the United States. The first two times, U.S. authorities "voluntarily” returned him to Canada. Following his third arrest at the U.S./Canada border, the INS began formal deportation proceedings.
Incredible as it might seem, Mezer was released from detention and allowed to remain in the United States after a friend posted a $5,000 bond.
Following his release, Mezer filed a political asylum application. In the application he claimed that Israeli authorities had continuously persecuted him based on a false suspicion that he was a member of the Hamas terrorist organization.
The asylum application was submitted during a status hearing before the U.S. immigration court in April 1997. Here’s what the OIG Report says about the events that transpired during the hearing:
Both the INS attorney who handled this hearing, which was similar to an arraignment, and the immigration judge who presided over it said that they skimmed Mezer’s application at the hearing and they did not notice the reference to Hamas in the application. But they said that even if they had noticed Mezer’s claim that he was falsely suspected of being a member of Hamas, they would not have sought a change in Mezer’s bond status, because there was no evidence that Mezer in fact was a terrorist. They also said that it is common for aliens seeking asylum to claim that they are falsely accused of membership in a terrorist organization to support their claim that they face the prospect of persecution in their home country.
In accordance with normal procedures, the immigration court requested the State Department’s input on Mezer’s asylum application. The court apparently believed that the State Department would check its databases for potential evidence of any associations that he might have with terrorists or terrorist organizations. But the State Department did not check its databases because it was not specifically requested to do so. Instead, the application was returned to the immigration court with a sticker indicating that the State Department did not have any specific information about Mezer.
Lafi Khalil, was also born in the West Bank of Israel. Using a Jordanian passport that he obtained in 1995, Khalil obtained a visa to visit Ecuador in 1996. With these travel documents, Khalil applied at the U.S. Consular Office in Jerusalem, Israel, for a visa to travel through the United States in order to get to Ecuador.
The consular officer who handled the visa application interviewed Khalil briefly and granted him a "C-1″ transit visa, which allowed him up to 29 days to travel through the United States on his way to Ecuador. During the interview, Khalil told the consular officer that he wanted to go to Ecuador to visit his uncle. But no effort was made to verify Khalil’s representations, nor was he required to show evidence of sufficient funds for a trip to Ecuador. Instead, the consular officer approved the visa based on the interview because there were no direct flights to Ecuador from Israel or Jordan and travel through the Untied States was often the cheapest route to Ecuador.
According to the OIG, the consular officer never even considered requiring Khalil to transit through the United States in a "transit without visa” status, which would have allowed him to take a flight to the United States and catch a connecting flight to Ecuador, as long as he remained in the airport.
But the errors and omissions did not end at the U.S. Consulate in Jerusalem. When Khalil arrived at John F. Kennedy Airport in New York on December 6, 1996, the immigration official to which he presented his passport mistook the transit visa for a tourist visa. This error resulted in a passport stamp that allowed Khalil to remain in the United States for 6 months rather than 29 days. After passing immigration, Khalil caught a flight to Syracuse, New York. There was no record of him ever traveling to Ecuador or leaving the United States upon the expiration of his visa.
Khalil and Mezer were arrested in a Brooklyn apartment on July 31, 1997, before they were able to carry out their evil plot.
D. The Extent of the Problem
Nearly two years prior to the September 11 attacks, noted international terrorism expert Steven Emerson testified before the House Judiciary Subcommittee on Immigration and Claims on the terrorist threat facing the United States. In his testimony, he listed a dozen and a half examples of major international terrorists and militants who had gotten into the United States in recent years.
"The list of major international terrorists and militants allowed to enter the United States in recent years or actually granted green cards and citizenship is nothing less than staggering,” explained Emerson.17
He said the preferred methods of entry include: falsified identity documents, immigration benefit fraud, and smuggling pipelines across the U.S.-Mexico and U.S.-Canada borders. On the issue of immigration benefit fraud, Emerson declared:
All one has to do is show up at a U.S. port of entry, even without documents, utter the two magic words "political asylum,” have any moderately truthful sounding story and one is likely to be processed in at least temporarily.18
II. INITIATIVES & PROPOSALS TO KEEP THE TERRORISTS OUT
As demonstrated by the examples cited above, foreign terrorists have all too often gained entry into the United States with relative ease. Unfortunately, it took the tragic events of September 11 to get the country focused on the seriousness of the problem. Since then, however, a number of proposals and initiatives have been offered to make it more difficult for terrorists to get in.
On October 29, 2001, President Bush issued a Homeland Security Presidential Directive, which focuses on "combating terrorism through immigration policies.” Private organizations including FAIR and the Center for Immigration Studies ("CIS”), to name a few, have also weighed in with comprehensive immigration reform and border control proposals.
Congress recently entered the picture, too. On December 19, the House of Representatives passed, by voice vote, the Enhanced Boarder Security and Visa Entry Reform Act of 2001. Similar legislation is now pending in the Senate.
As reflected by the recent House vote, many of the proposals and initiatives that have been offered have strong bi-partisan support. Others, however, remain controversial.
This section highlights the major immigration reform and border control initiatives that are being pushed in the wake of the September 11 attacks. It includes discussion of President Bush’s recent Presidential Directive on immigration reform; a review of the proposals of FAIR and CIS; an examination of the legislation recently passed by the House of Representatives; and the consideration of the major objections raised by various interest groups including the American Civil Liberties Union and the CATO Institute.
A. The President’s Immigration Reform Directive
On October 29, 2001, President Bush issued his second Homeland Security Presidential Directive, which focuses on "combating terrorism through immigration policies.” 19 Key features of the Directive include the following:
- Establishment of a "Foreign Terrorist Tracking Task Force,” which is charged with coordinating federal programs designed to: (1) deny entry into the United States of aliens associated with, suspected of being engaged in, or supporting terrorist activity; and (2) locate, detain, prosecute, or deport any such aliens already present in the United States.
- Enhanced INS and Customs enforcement capability through the development and implementation of "multi-year plans to enhance the investigative and intelligence analysis capabilities of the INS and Customs Service.”
- A thorough review of student visa policies and the implementation of measures to "end the abuse of student visas and prohibit certain international students from receiving education and training in sensitive areas, including areas of study with direct application to the development and use of weapons of mass destruction.”
- Improved coordination in immigration and custom policies with Canada and Mexico, including the establishment of a "shared immigration and customs control data-base with both countries.”
- A timetable for recommendations from the Office of Science and Technology Policy on the use of advance technology for immigration and border control enforcement.
Generally speaking, the Presidential Directive sets out broad policy objectives, but is short on specifics. The only real exception is that portion of the directive that addresses "Abuse of International Student Status.”
As part of the Administration’s review of the nation’s student visa policies, the Directive calls for the development of a program to "identify sensitive courses of study,” and "include measures whereby the Department of State, the Department of Justice, and United States academic institutions, working together, can identify problematic applicants for student visas and deny their applications.” The Directive states that the program shall "provide for tracking the status of a foreign student who receives a visa (to include the proposed major course of study, the status of the individual as a full-time student, the classes in which the student enrolls, and the source of the funds supporting the student’s education).”
Other specifics include an instruction to develop "guidelines that may include control mechanisms, such as limited duration student immigration status, and may implement strict criteria for renewing such student immigration status.” The Directive also calls on the INS, in consultation with the Department of Education to conduct periodic reviews of educational institutions to ensure compliance with record keeping and reporting requirements.
Besides issuing the policy directive, the Bush Administration has implemented some immediate measures. In the days following the September 11 attacks, hundreds of arrests were made for immigration violations, and revisions were made to the non-immigrant visa process. Attorney General John Ashcroft also announced that the list terrorist groups, whose members and supporters are banned from entering the United States, had been expanded from 46 groups to 74. In making the announcement, the Attorney General declared: "America will not allow terrorists to use our hospitality as a weapon against us.”20
B. Immigration Reform Groups Weigh-In
In contrast to the broad policy goals that are outlined in President Bush’s Homeland Security Presidential Directive, two of the nation’s leading immigration reform groups have responded to the September 11 attacks by offering comprehensive proposals that they believe will help to keep foreign terrorists from getting into the United States. As mentioned above, those two groups are FAIR and CIS.
While there are unique features to each group’s proposals, there is also considerable overlap. For example, both organizations call for an increase in the number of consular officers assigned to issuing and screening visa applicants, and for increased scrutiny and background checks of each visa applicant.21 But CIS calls for the establishment of a "free-standing visa issuing agency” that would not be answerable to either the local ambassador or the INS.22
The two organizations also recommend the use of advanced technology for screening visa applicants. FAIR calls for the establishment of a "joint database managed by INS on aliens present in the United States that can be accessed by the State Department and the FBI.” The group says that the database should include "data developed by the State Department on foreign nationals who have applied for visas for travel to the United States as well as FBI information on aliens in the United States who have broken the law or are under investigation for lawbreaking.”23
Both groups agree that fingerprint records should be maintained for all aliens who are allowed to enter the United States. According to CIS, the fingerprints should be "digitally scanned into an integrated system which can be accessed by everyone involved in the immigration process; overseas, at the border, and within the country.”24
The establishment of an effective entry-exit system is another major priority of FAIR and CIS. FAIR says that the timetable for a congressionally mandated entry-exit computerized registry of foreign visitors should be accelerated, and that the registry should include the visitor’s identity, travel plans and a digital photo, which is entered electronically at the time of entry.25
Among other things, the two groups agree on the need for greater investment in manpower and infrastructure at the border; enhanced capabilities in monitoring the activities of foreign students and temporary visa holders; better enforcement of the ban on hiring illegal aliens; and the elimination of Section 245(j), which allows certain illegal aliens to undergo visa processing without returning to their home country.
A major distinction between the two groups’ proposals centers on state-issued driver’s licenses and identity cards. FAIR says that driver’s permits for all foreign visitors, except those granted permanent U.S. residence, should be issued by the U.S. Department of Transportation, not the states.26 The group also says that Congress should mandate national standards for state-issued driver’s licenses and identification documents that are issued to Americans. FAIR says these documents should be anchored to and verified by the Social Security database.27 CIS does not address either of these issues in its recent congressional testimony.28
C. Congressional Action
On December 19, 2001, the U.S. House of Representatives passed HR 3525 by voice vote. The bill, which is entitled the ‘Enhanced Border Security and Visa Entry Reform Act of 2001,’ was introduced only hours earlier by Rep. F. James Sensenbrenner, Jr. (R-WI).29
A similar bill was introduced in the Senate several weeks earlier. Sponsors in the Senate include: Sam Brownback (R-KS), Maria Cantwell (D-WA), Susan Collins (R-ME), John Edwards (D-NC), John Ensign (R-NV), Charles Hagel (R-NE), Edward Kennedy (D-MA) and Harry Reid (D-NV).30
Even though the Senate bill has strong bi-partisan support, prompt consideration was blocked by Senator Robert Byrd (D-WV) on the grounds that the legislation is too complex to pass without further study.31
- Major provisions of the House-passed bill include:
- Funding to increase in the number of full-time INS Inspectors and investigative personnel.
- An additional $150,000,000 appropriation to INS for improvements in border control technology.
- Greater sharing of information between the INS, Department of State and the intelligence community.
- The establishment of an Integrated Immigration and Naturalization Data System.
- The implementation of an integrated entry and exit data system, including machine-readable, tamper-resistant entry and exit documents.
- Establishment of Terrorist Lookout Committees for each U.S. mission abroad.
- Improved training for consular officers.
- Restrictions on the issuance of visas to non-immigrants from countries that are state sponsors of international terrorism.
- New identification documents for certain aliens, including those granted asylum.
- Authorization for a feasibility study of a North American National Security Program that will involve the United States, Canada and Mexico.
- New requirements for passenger manifests on international flights.
- Enhanced monitoring of foreign students and a review of the policies and procedures relating to exchange student programs.
For the most part, the pending legislation incorporates into law the less controversial aspects of the immigration reform proposals put forth by groups such as FAIR and CIS. It also gives President Bush more leeway in implementing his Homeland Security Presidential Directive on combating terrorism through immigration policies.
One noteworthy exception, however, is a provision restricting the issuance of visas to non-immigrants from countries that are state sponsors of international terrorism. Section 306 of the House bill prohibits the issuance of a visa to "any alien from a country that is a state sponsor of international terrorism unless the Secretary of States determines, in consultation with the Attorney General and the head of other appropriate United States agencies, that such alien does not pose a threat to the safety or national security of the United States.”32 A similar provision is included in the Senate version of the legislation.33
This particular provision is more restrictive than any of the recommendations of FAIR or CIS. For example, CIS takes the position that "excluding persons based on religion or nationality is not justified.” 34 In its previously cited congressional testimony, the group says:
While more vigorous background checks for persons born in some countries makes sense and may result in a higher percentage being denied visas, efforts to exclude entire countries or religions should be rejected.35
D. Major Objections to the Immigration Reform
The American Civil Liberties Union ("ACLU”) has been one of the more vocal critics of the Bush Administration’s response to the September 11 terrorist attacks. According to the ACLU, "the government has implemented measures that go light years beyond anything conceivably necessary to combat terrorism.”36
The group has been especially critical of the Administration’s detention of some 500 aliens for immigration and visa violations since the September 11 attacks. In a December 14 statement Gregory T. Nojein, Associate Director of the ACLU’s national office said:
Even after several reasonable requests under the Freedom of Information Act and a lawsuit filed in federal court, the Attorney General still adamantly declines to allay the fears of the civil liberties, human rights and, indeed, the American public that our closely-held values of fairness, justice and equality under the law are being applied to these detainees, the vast majority of whom are being held on charges unrelated to the events of 9-11.371
Despite its shrill attack on the Bush Administration’s detention of illegal aliens, the ACLU’s criticism of the pending immigration reform legislation has been considerably muted. On December 18, for example, the ACLU issued a statement endorsing several of the provisions of the Senate bill, saying it "contains creative border security solutions that keep us both safe and free.”38
The group’s criticisms were limited to just four areas. First, the ACLU urged changes to the provision requiring law enforcement agencies to share information about a non-citizens’ immigration status, saying the provision might "sap trust in law enforcement from immigrant communities who might hold information crucial to anti-terrorism efforts.” The group recommended language to "clarify that information about someone’s immigration status need not be given to the INS if it interferes with the law enforcement agency’s primary mission.”39
The ACLU’s second recommendation concerned language that it claims it has the potential to create the infrastructure for a national identification system. It recommended the inclusion of a provision making clear that the bill does not authorize or permit the creation of a national ID.40
The group’s third concern focused on the proposed perimeter security program. According to the ACLU, such a system, if implemented without safeguards could weaken the ability of the world’s persecuted to seek asylum in the Untied States. It called for inclusion of language stating affirmatively that the government must examine the impact of these measures on the access of refugees to the United States.41
Finally the ACLU criticized what it termed "provisions for scrutinizing visa applicants,” claiming those provisions are "based on arbitrary criteria and could provide greater opportunity for punishing speech the government does not like, depriving Americans citizens of access to controversial views from abroad.” This appears to be criticism aimed at the restrictions that are imposed on the issuance of visas to persons from countries that are designated as state sponsors of international terrorism.42
The CATO Institute has also expressed concerns over some of the immigration reforms that have been proposed in the wake of the September 11 attack. In a column entitled "Don’t Blame Immigrants for Terrorism,” CATO’s Daniel T. Griswold acknowledges that the government "must strengthen its efforts to stop terrorists or potential terrorists from entering the country,” but he worries that those efforts might result in a wider effort to close our nation’s borders to immigrants.43
As Griswold sees it, skeptics of immigration, such as Patrick Buchanan and FAIR, "have tried in recent days to turn those legitimate concerns about security into a general argument against openness to immigration.” He says that immigration and border control are separate issues. "Border control is about who we allow to enter the country, whether on a temporary or permanent basis; immigration is about whom we allow to stay and settle permanently.”44
According to Griswold, "It would be a national shame if, in the name of security, we were to close the door to immigrants who come here to work and build a better life for themselves and their families.”45
Another area of complaint is the entry ban that has been imposed on members and supporters of terrorist organizations and their support groups. David Cole of the Georgetown University Law Center complains that the ban goes too far. He says, "The government has shifted focus from the actual terrorists . . . to people who merely have some sort of political association with a proscribed or disfavored group.”47
III. Analysis & Recommendations
With a few notable exceptions, the American public should look favorably upon the immigration and border control reforms that are discussed above. As documented in Part I of this report, all too often terrorists have gotten into the United States with little or no difficulty. The overwhelming majority of the proposals and initiatives discussed above include positive steps to help keep them out, while minimizing the inconveniences to American citizens.
For example, it would have been much more difficult for Abdel Rahman to get into the United States if the U.S. mission in the Sudan had an automated lookout system for security threats. The use of advanced technology to combat terrorism is a major priority of the Bush Administration, Congress and immigration reform groups. In his October 29 directive, President Bush charged the Office of Science and Technology Policy with making recommendations for the use of advanced technology to enforce and implement U.S. immigration laws and programs. The legislation that is pending before Congress mandates the development and implementation of a database of relevant information from Federal law enforcement agencies and the intelligence community for use in visa processing.
Funding for more consular officers, INS, customs and border control agents is crucial, as is better training. If the U.S. Consular Officer in Jerusalem had received more intense training or knew the proper inquiries to make concerning Kafi Khalil, the visa allowing him to transit through the United States might never have been issued.
The Bush Administration’s crackdown on abuses of student visas is clearly a prudent measure. Anyone who seeks a visa to enter the country as a student or "trainee” should be required to show in the visa application that he or she has been accepted for admission at an approved school. Before the person is allowed to enter the country, there should be a further requirement that the student have taken appropriate steps to enroll at the school. This would include such things as proof that tuition has been paid and the sources of the individual’s educational funding. If the student visa applicant is already in the United States on a tourist or other short-term visa, the applicant ought to be required to return to his or her country of origin to have the visa processed. In addition, procedures must be put in place to monitor the student’s activities while here to ensure that he or she is attending classes and making progress toward a degree or diploma.
If similar measures had been in place when Hani Hason Hanjour or Mohamed Atta applied for student and trainee visas, it is quite possible that the visas that were issued would not have been approved.
The Administration should also be commended for taking action to keep members and supports of the vast terrorist support network from entering the United States. While there may be disagreements over which groups should be included on the list of organizations whose members and supporters are prohibited from entering the United States, few in the mainstream quarrel over the need to ban foreigners who give aid and comfort to terrorists even though they may not be terrorists themselves. To paraphrase Attorney General Ashcroft: America must not allow terrorists to use our hospitality as a weapon against us.
Greater cooperation with our neighbors in Canada and Mexico is another vital tool in combating terrorism through immigration and border control reforms. It is far less likely that the fiasco involving Gazi Mezer would have occurred if more information had been shared between U.S. and Canadian officials regarding his activities.
Restricting the issuance of visas to aliens from countries that are state sponsors of terrorism is one of the more powerful measures under consideration. Both the House and Senate border security bills would denies visas to nationals of terrorist-sponsoring countries unless a specific determination is made that the individual does not pose a threat to the security of the United States. In other words, the individual from a designated country who wishes to enter the United States will be required to show that he or she does not pose a terrorist threat.
The ACLU’s contention that this is an arbitrary standard that will "deprive American citizens of access to controversial views from abroad” is without merit. The standard does not prohibit the dissemination of controversial viewpoints; nor does it amount to a blanket ban on travel to the United States for the nationals of certain countries. But it will make it much more difficult for known terrorists or even terrorist suspects to obtain an entry visa.
If anything, the two bills do not go far enough. Only Iran, Iraq, Syria, Libya, North Korea and Sudan, are listed by the State Department as state sponsors of terrorism. 47 For political reasons, certain other countries are not on the list even though they are breeding grounds for such activity. Most of the September 11 hijackers hailed from Saudi Arabia, yet it is unlikely that that country will be listed as a state sponsor of terrorism. Indeed, the Taliban regime in Afghanistan didn’t even make the list. To be an effective measure against terrorism, the list of countries subject to travel restrictions should be expanded to include Saudi Arabia, Afghanistan, Pakistan and other countries where significant terrorist activity and training occurs, irrespective of whether the activity is "sponsored” by the state.
There is clearly no constitutional impediment to nationality-based restrictions on who is allowed to enter the United States. No alien has a constitutional right to enter the United States. Indeed, there are few, if any, circumstances where an alien who is not physically present in the United States would be accorded the protections of the U.S. Constitution or its Bill of Rights. This reality helps explain why the ACLU has couched its criticisms of the travel restrictions in terms of denying Americans access to controversial views from abroad.
For the most part, the ACLU’s other objections to the pending bill are weak, if not down right disingenuous. The group has never been known as a friend of the law enforcement community, yet it complains that provisions relating to the sharing information between local and national law enforcement officials might some how interfere with the primary missions of local law enforcement agencies.
While it is true that the legislation will likely make it more difficult for certain individuals to gain admission on an asylum application; but the goal is to keep individuals like Abdel Rahman and Gazi Mezer from getting in. If denying asylum to a few individuals in marginal cases is the price that America must pay to keep terrorists from getting in on asylum applications, so be it. After all, asylum in the United States is a privilege, not a right.
Several of the September 11 hijackers were able to obtain state-issued driver’s licenses and other identification with relative ease. To reduce the likelihood that these documents can be obtained unlawfully, FAIR suggests that foreign visitors, except those that have been granted permanent resident status, be required to obtain driver’s permits from the U.S. Department of Transportation in order to operate a motor vehicle in the United States.
This suggestion has considerable merit and it ought to be studied for feasibility. DOT-issued driver’s permits for temporary visitors may be especially effective when coupled with other reforms such as closer monitoring of student visa recipients. If the officer who made the traffic stop of Hani Hanjour knew Hanjour was a foreign visitor, he might have investigated further by checking on his immigration status before releasing him on a summons. Moreover, if such a check revealed that Hanjour was in violation of his student visa, such information may have been sufficient to detain him.
On the other hand, proposals that violate the U.S. Constitution or impose undue burdens on the American people ought to be avoided. One such idea is FAI R’s pitch to impose national standards on the issuance of driver’s licenses and state-issued identification cards to American citizens. This scheme was actually enacted under the Clinton Administration as Section 656(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. But Rep. Bob Barr (R-GA) led the successful effort to have that provision repealed following an uproar from American public. The American people are clearly opposed to any national ID scheme, and no such plan should be instituted.
Contrary to the views of the ACLU, however, the pending border security bills do not appear to include any provisions that set up the infrastructure for a national ID scheme. This particular criticism appears to be a scare tactic aimed at derailing the bill. By its very terms, the two bills ID-related provisions apply to aliens, not American citizens.48 And, as discussed above, there is a world of difference between the burdens that may or should be imposed on aliens and those that may or should be imposed on the American people. The goal is to effectively combat terrorism, while minimizing the intrusions on the liberties of the American people.
The CATO Institute may be correct in its contention that leading immigration reform groups are using the terror attacks of September 11 to advance their anti-immigration agenda, but this concern is not a valid basis for derailing necessary and appropriate reforms. The safety and security of the American people is at stake: It is far better to reduce the number of foreign visitors and immigrants who are allowed to enter the United States, then the alternative of imposing restrictions on the American people.
Finally, there is a need for some common sense changes to our overall border control policies. Mohamad Atta was allowed to return to the United States in January 2001, despite the fact that he did not have a valid visa. Ramzi Yousef was not detained when he entered the United States even though his traveling companion had a fake passport and bomb-making videos and manuals were found in the companions luggage. Gazi Mezer was released on $5,000 bond and allowed to remain in the country despite two prior attempts to enter the United States unlawfully. Had these individuals been held in detention or required to immediately depart, thousands of lives may have been saved. As a rule, the United States needs to adopt a firm policy that it will either detain and hold, or at least deny entry to, individuals with invalid or expired visas, or whose activities garner legitimate suspicion of terrorist activity.
*Mr. Boos is the Vice President and General Counsel of Citizens United Foundation, and he also serves as Director of the organization’s American Sovereignty Action Project. Mr. Boos is a 1994 graduate of George Mason University School of Law. He is a member of the Virginia State Bar and maintains a private law practice in Northern Virginia.
1New Details Given About Hijack Suspects’ Visas, CNN.com, November 23, 2001; see also U.S. Officials Outline Plot for September 11, Washington Post, Nov. 22, 2001, p. A26.
2World Trade Center and Pentagon Terrorist’s Identity and Immigration Status, Issue Brief (The Federation for American Immigration Reform, Washington, DC), Oct. 2001.
3For Want of a Crystal Ball, Washington Post, Jan. 9, 2002, p. A13.
4The Ins and Outs of Mohamed Atta, Newsday.com, October 14, 2001.
7World Trade Center and Pentagon Terrorist’s Identity and Immigration Status, Issue Brief (The Federation for American Immigration Reform), Oct. 2001.
8The Ins and Outs of Mohamed Atta, Newsday.com, Oct. 14, 2001.
10World Trade Center and Pentagon Terrorist’s Identity and Immigration Status, Issue Brief (The Federation for American Immigration Reform, Washington, DC), Oct. 2001. There appears to be some confusion as to whether Atta was detained in the UAE. While FAIR’s Issue Brief contains this information, similar information is conspicuously absent from other sources. See e.g. The Ins and Outs of Mohamed Atta, Newsday.com, Oct. 14, 2001.
12World Trade Center and Pentagon Terrorist’s Identity and Immigration Status, Issue Brief (The Federation for American Immigration Reform), Oct. 2001.
14Id; see also The Ins and Outs of Mohamed Atta,Newsday.com, Oct. 14, 2001.
15Terrorism Chronology, Issue Brief (The Federation for American Immigration Reform, Washington, DC.
16Bombs in Brooklyn: How the Two Illegal Aliens Arrested for Plotting to Bomb the New York Subway Entered and Remained in the United States, U.S. Department of Justice, Office of Inspector General, March 1998.
17International Terrorism and Immigration Policy, Testimony of Steven Emerson, U.S. House of Representatives, Judiciary Subcommittee on Immigration and Claims, January 25, 2000.
19Homeland Security Presidential Directive-2, The White House, Oct. 29, 2001.
20Immigration Rules Tightened, Washington Post, Nov. 1, 2001, p. A3; see also Statement of Attorney General Aschcroft, U.S. Department of Justice, Washington, DC, Oct. 31, 2001.
21Compare Immigration Control: A Handbook of Recommendations (Federation for American Immigration Reform, Washington, DC), Sept. 20, 2001 and Immigration and Terrorism (Center for Immigration Studies, Washington, DC), Oct. 12, 2001.
22Immigration and Terrorism,p. 3.
23Immigration Control: A Handbook of Recommendations, pp. 2-3.
24Immigration and Terrorism,p.4.
25Immigration Control: A Handbook of Recommendations, pp. 4-5.
26Id. at 6.
27Id. at 7.
28See Immigration and Terrorism (Center for Immigration Studies, Washington, DC), Oct. 12, 2001.
29H.R. 3525, U.S. House of Representatives, Dec. 19, 2001.
30S. 1618, U.S. Senate, November 1, 2001.
31Congress Adjourns Without Immigration-Reform Bill, Washington Times, Dec. 20, 2001, p. A7.
32H.R. 3525, Ê 306.
33S. 1618, Ê 9.
34Immigration and Terrorism,p. 5.
36Threats to Civil Liberties Post-September 11: Secrecy, Erosion of Privacy, Danger of Unchecked Government, News Release (American Civil Liberties Union, Washington, DC), Dec. 14, 2001.
38ACLU Supports Common Sense Fixes in Border Security Bill, Suggests Changes to Protect Privacy, Law Enforcement, News Release (American Civil Liberties Union, Washington, DC), Dec. 18, 2001.
43Don’t Blame Immigrants for Terrorism (CATO Institute, Washington, DC) Oct. 23, 2001.
46Immigration Rules Tightened, Washington Post, Nov. 1, 2001, p. A3.
47Overview of State-Sponsored Terrorism, U.S. Department of State, Washington, DC, April 30, 2001.
48See H.R. 3525, ÊÊ 303 and 309; and S. 1618, ÊÊ 5 and 12.
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