More Resources, Not Laws

We 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.

The 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.

Some 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.

The 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.

The 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.

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