More Resources, Not Laws
By Brent Renison
are at war with ourselves, and we are formidable opponents. The terrorist attacks
have heightened our awareness of security and caused us to grapple with eroding
the civil liberties that for centuries our nation has safeguarded. In these
trying times we must be wary of the suggestion that a change in the laws will
bring us security.
immigration system has come under attack, just as it has following past tragedies.
INS Commissioner James Ziglar and State Department Consular Affairs Secretary
Mary Ryan have both made it clear, however, that the events of Sept. 11 represented
a failure in intelligence gathering and sharing rather than a failure of the
immigration system. We should support all reasonable initiatives to improve
our nation's security and the safety of all Americans. Each proposal should
be evaluated by asking whether it increases our security and preserves our fundamental
rights and liberties.
have suggested implementing an alien registration program through which legal
aliens would periodically report their address. Laws already exist for this,
but the INS has noted that it does not have the personnel to implement such
a system. It is perhaps impossible to trace the whereabouts at every moment
of each of the nearly 30 million visitors who come into the United States each
year. Our security comes from better intelligence and shared communication between
law enforcement agencies about those who have concrete terrorist or criminal
connections. Surprisingly, the INS and State Department do not have direct access
to the databases of the FBI and other agencies that collect relevant information.
These agencies need improved access to lookout lists, with appropriate safeguards
to assure security and confidentiality.
agencies also require increased funding to enhance technological capabilities
and raise salaries of those entrusted with safeguarding our country. INS inspectors'
salaries are low, and the agency has difficulty retaining competent personnel.
Currently, foreign citizens entering the U.S. are given a paper card to place
in their passport indicating when they must depart and are told to deposit the
card with airport officials when they leave. While some airports share departure
information, most do not. No exit inspection exists nor any comprehensive system
to alert the authorities to an overstay. We need to enhance our data gathering
at airports by mandating an integrated entry and exit system that would collect
and correlate data about arrivals and departures. In 1996, Congress required
the INS to fully implement a system for electronic transfer of student information
between educational institutions and the INS by 2001. This overdue project,
only operational in 21 schools, needs to be completed. We also need to require,
pursuant to laws on the books for years, that all airlines transmit electronically,
in advance of arrival, their passenger manifests. The USA PATRIOT (''United
and Strengthening America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism') Act, signed by President Bush in October, encourages
the full implementation of projects mandated by prior law.
act, however, also casts such a broad net that it will allow for the detention
and deportation of people engaging in innocent associational activity and constitutionally
protected speech, and permit the indefinite detention of immigrants and non-citizens
who are not terrorists. The act provides that the attorney general may certify
a non-citizen as a terrorist if there are 'reasonable grounds' to
believe that the person is a 'terrorist' or has committed a 'terrorist
activity' and requires mandatory detention of a person so certified. The
new law also allows the INS to detain a suspected terrorist alien for seven
days before bringing immigration or criminal charges. Alarming administrative
action occurred when the Bureau of Prisons issued a regulation allowing the
government to listen in on conversations between prison inmates and their legal
counsel, and the Executive Office for Immigration Review issued regulations
allowing the government an automatic stay pending appeal of an immigration judge's
release decision in any case where the INS initially set a bond of $10,000 or
more. This effectively results in indefinite detention without even an allegation
of terrorist activity. In 1996, Congress passed a law allowing the establishment
of an Alien Terrorist Removal Court to be composed of five district court judges.
Activation of this special court would provide the government with the ability
to protect sources and provide the accused with a trial and government-appointed
counsel. We have yet to see its activation.
The problems we face in identifying those who threaten our security are technological, not legal. Technology is as effective as the user, and must be harnessed by experienced and competent officials. We must resist the temptation to burden our freedoms by unnecessary laws and remember the words of Justice Brandeis in his 1928 dissent in the Olmstead wiretapping case: 'The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding.'
ABOUT THE AUTHOR
Brent Renison, an attorney with Tonkon Torp in Portland, is a former State Department official and member of the American Immigration Lawyers Association.