Donald Kerwin
When National Security and Immigration Policy Collide

Over the last two months, thousands of Pakistani immigrants have abandoned their U.S. homes to seek refuge in Canada. Most wait fearfully in shelters and motels in U.S. border cities for their refugee interviews in Canada. The Immigration and Naturalization Service has arrested others who may or may not be released for their interviews. Most of the Pakistanis have lived in the United States for years, and many have U.S. citizen children. They have left behind good jobs and strong ties in their adopted communities. Since December, 650 of them have come to a migrant shelter in Buffalo, N.Y. A typical familya couple with two U.S. citizen childrenarrived on a bleak day in mid-February. The couple had entered the United States on temporary visas in the early 1990’s. They built a business that now employs 15 people. They have no ties in Canada, but they fear that their children could not survive deportation to Pakistan.

It should come as no surprise that Pakistanis and other immigrants no longer view the United States as a safe or fair country. Over the last 18 months, targeted communities have seen thousands of their members arrested, detained for weeks without charge, held for immigration violations in a sweeping terrorism probe, called in for interviews and deported after closed hearings. Late last year, the I.N.S. arrested and detained hundreds of immigrant men from five countries (most from Iran) who voluntarily came forward to register. The detainees had overstayed their temporary visas, although many awaited permanent residency based on approved family-based visas. Earlier this year, the I.N.S. arrested men from another 13 mostly Middle Eastern countries. Pakistanis and Saudi Arabians comprise a third group of registrants. As their deadlines approached, the Pakistanis fled.

The Bush administration has characterized its antiterror strategy as a measured attempt to protect liberty. Civil libertarians argue that it dishonors the U.S. constitutional tradition and amounts to a kind of surrender to terrorism. A greater risk, however, may be that immigrants increasingly view the war on terror as ineffective on its own terms and as a pretext to punish immigration violations. Their loss of confidence in the tactics and goals of the antiterror fight could prove fatal to its success.

The Antiterror Investigation

The government has justified its immigration enforcement measures based on contested theories of national security. According to experts in counterterrorism, the U.S. tactics result from intelligence deficiencies and fear of unidentified Al Qaeda cells in the United States and Canada. Since Sept. 11, 2001, the government’s priority has been to disrupt and prevent further attacks.

The Justice Department has likened its investigation to piecing together a mosaic. Its guiding principle, says Vincent Cannistraro, former head of counterterrorism at the C.I.A., has been to shake the trees and hope that something will fall outa strategy that in the short term might have value and can disrupt terrorist acts, but whose success is difficult to prove. Intelligence experts have harshly criticized the Justice Department’s tactics. As the former F.B.I. director William Webster told The Washington Post, pre-emptive arrest and detention carries a lot of risk with it. You may interrupt something, but you may not bring it down. You may not be able to stop what is going down.

Shaking the tree, moreover, can alienate targeted communities, push sources into hiding and deny investigators crucial information that they might acquire from monitoring suspects. If the shaking the tree approach netted a terrorist, it would be difficult to know this, much less to elicit information from him. You can scare people, says Cannistraro, which is actually what’s being done, or you can try to win them over and cultivate good relationships with them. Cooperation and long-term relationships are much more successful.

Early in its antiterror investigation, the Justice Department adopted a zero-tolerance approach to immigration violations. In October 2001, Arab-American and Muslim-American leaders met with Attorney General John Ashcroft. The group had learned of immigrants who refused to report death threats and hate crimes because they feared deportation. The leaders asked that a fire wall be erected between federal hate crime investigations and immigration enforcement. Mr. Ashcroft rejected this request, however, saying that he would not excuse criminal conduct of any kind. For the participants, this represented a chilling development, signaling that violence against their out-of-status community members would go unreported and that cooperation in the broad antiterror fight could be punished.

Few idealize the presence (or treatment) of the seven million undocumented persons in the United States, but the undocumented do not present a heightened security risk. Nearly 80 percent come from Mexico and Latin America, not nations with a strong Al Qaeda presence. Furthermore, as Cannistraro points out, Al Qaeda recruits those who do not typically raise immigration red flags; its terrorists have overwhelmingly entered the United States in legal status. Thus, antiterror measures that target the undocumentedlike sweeps of selected work sites and the use of state and local police to enforce immigration violationsdo not effectively enhance security. On the contrary, they reduce the likelihood that the undocumented and their family members, who in many instances are U.S. citizens, will report crimes or assist in the terrorist investigation.

Secrecy

Secrecy has also characterized the antiterrorism investigation. For weeks, families, attorneys and consulates could not locate persons arrested in the post-Sept. 11 dragnet. Once located, many detainees could not be visited for extended periods. The Justice Department refused to release the names or even the exact number of those held. It categorically closed more than 600 deportation hearings deemed to be of special interest. It warned federal agencies about disclosing information under the Freedom of Information Act. It authorized the monitoring of attorney-client communications that might be used to further terrorism.

The Justice Department maintains that secrecy is necessary to prevent terrorists from piecing together a mosaic of the investigation. It has even suggested that terrorists will not otherwise know when one of their members has been detained. Harry Skip Brandon, former head of counterterrorism for the F.B.I., argues that while certain investigative methods and sources need protection, the government often overstates its need for secrecy, sometimes keeping information from the public that could and should be disclosed. The government’s failure to penetrate Al Qaeda and its resulting woeful human intelligence, says Cannistraro, also casts doubt on the quality of the information that it seeks to keep secret. Secrecy can be counterproductive, since open hearings might prompt others to come forward with relevant information. It also insulates the government’s tactics from public scrutiny and criticism.

The Innocent

Only a few of the immigrants arrested in the antiterror probe have been charged with non-immigration crimes or deported on national security grounds. The F.B.I. has exonerated hundreds of others, but the Justice Department continues to label them potential security threats. During a conference in October 2002 that was co-hosted by my agency, a Justice official reported that the government had deported some persons with suspected terrorist ties on the grounds of immigration violations, because their removal on national security grounds might have exposed investigative methods. The failure to prosecute suspected terrorists, he said, reflected the difficulty in securing convictions.

The Justice Department has offered a similar rationale for deporting Somali nationals. In response to class-action litigation challenging the Somalis’ deportation to a land without a functional government, it claimed that not removing immigrants, particularly to countries which are believed to harbor terrorists...runs the risk of jeopardizing national security. Furthermore, it argued that the removal of the Somalis on other than national security grounds did not mean that they lacked knowledge of, or connection to, terrorism.

While these claims cannot be verified or disproved, the release of suspected terrorists would contradict everything known about the Justice Department’s investigation. I feel strongly, says Brandon, that if they had much of any information to go on, they would keep [suspected terrorists in their] custody and control. Once you deport them, you lose control over them. In addition, these statements cast suspicion on the overwhelming majority of detainees who have no terrorist ties. They might also lead to the punishment of innocent deportees in their countries of birth. Ironically, Justice officials refused to release the identities of the post-Sept. 11 detainees, in part because this might stigmatize them as potential terrorists.

Refugees and Asylum Seekers

The national security paradigm does not fit refugees, political asylum-seekers and others who are fleeing persecution. The refugee process may be the most improbable path that a terrorist could take to try to reach the United States. Yet after the Sept. 11 attacks, the United States halted refugee admissions for two months to review the program’s security. By the year’s end, only 27,000 of the 70,000 refugees approved for admission had entered the country. Advocates urged that unused refugee slots from 2002 be carried over to 2003, but the president effectively lowered the admissions ceiling to 50,000 this year, reserving another 20,000 slots for use only in the event of regional shortfalls or overriding need. The pace of refugee admission has slowed in recent monthsin the first quarter of fiscal year 2003, the United States allowed only 4,023 refugees to enter.

Any security concerns that threaten to eviscerate one of the United States’ proudest programsand one that directly assists the victims of terrorshould be quickly resolved. You need to vet refugees, like anybody else, says Brandon, but processing small numbers is not a national security issue. It’s an issue of government inefficiency or inadequate resources.

Similarly, Haitian boat people, fleeing persecution and poverty, do not present a terrorist threat. In late 2001, the administration began to detain Haitian boat people to deter others from coming. It subsequently announced that it would extend the harsh policies governing the Haitians to other immigrants. All non-Cuban undocumented migrants who have arrived by boat or have been in the country for less than two years will now be subject to expedited return. Even those who have established a credible fear of persecution will be detained. The Justice Department maintains that this policy will prevent mass migrations that could divert the Coast Guard from its national security duties. This is not a national security measure per se, says Brandon, and may be a misapplication of the national security rubric.

The Sept. 11 attacks also increased the momentum to harmonize U.S., Canadian and Mexican immigration enforcement policies. Mexican officials estimate that they annually intercept (with U.S. support) 250,000 migrants. It would imperil nobody to interview these migrants and to admit to the United States those who are fleeing danger. Nor does the recent U.S.-Canada safe-third country asylum agreement enhance security. Under it, a migrant who transits through one nation will not be able to seek asylum in the other. When implemented, this agreement will bar 15,000 Canadian asylum claims each year. With limited exceptions, these migrants will not be able to seek asylum in Canada and will be returned to the United Statesan outcome that is at best security-neutral.

Reporting Change of Address

The war on terror has also given rise to law enforcement initiatives that, in a perfect world, might advance security but that the I.N.S. cannot accommodate. In July 2002 the Justice Department announced that it planned to enforce rigorously a law requiring immigrants to report changes of address within 10 days. This ignored the I.N.S.’s lamentable history of misplacing documents, including two million in a warehouse in Missouri, and its inability to assume new mandates. Most recently, a federal grand jury indicted two I.N.S. contractual employees in California for allegedly destroying tens of thousands of immigration applications. As the General Accounting Office recently reported, the I.N.S. lacks adequate procedures and controls to ensure that the alien address information it receives is completely processed.

Since August, the I.N.S. has received 825,000 change-of-address notices, compared to 2,800 in the previous month. It could not process the vast majority of these forms. Moreover, as the G.A.O. noted, immigrants who do not want to be detected will not likely comply with this requirement. Since the reporting program operates on an honor system, terrorists could simply provide false information.

Undermining Antiterrorism

Many immigrants understand terrorism intimately; they fled it. It outrages them that their adopted country has become a terrorist target. Immigrants will readily make sacrifices, endure hardships and support reasonable security measures. They have backed legislation to improve intelligence sharing, to track temporary visitors, to improve monitoring of foreign students and to tighten visa procedures. They have willingly cooperated with the F.B.I.’s investigation. Yet they increasingly reject the security rationale offered for immigration restrictions. At worst, many of these restrictions undermine the anti-terror fight. At best, they do not go to the heart of the threat. The United States needs to penetrate terrorist groups, improve human intelligence overseas and develop good sources and relationships with immigrant communities. Vincent Cannistraro puts it starkly: If you have fingerprinted every Saudi in the United States and one then commits a suicide bombing, these [immigration] measures mean nothing.

Donald Kerwin is the executive director of the Catholic Legal Immigration Network Inc., a legal support agency for 145 Catholic immigration programs.