National Security and Immigrant Rights
The debate over how to protect the United States from terrorism while safeguarding its guiding values rages with particular intensity in immigrant communities. The federal government has directed more than thirty antiterror measures at select groups of immigrants since September 11, 2001. Not all these measures endanger core rights. Nonetheless, one questions how some of them meaningfully protect the public.
Of all the migration policy changes since the terrorist attacks, the diminished US refugee program threatens to cause the greatest suffering while yielding the fewest security benefits. The US Committee for Refugees counted 14.9 million refugees-the most desperate of migrants-worldwide in 2001. In October 2001, the United States suspended refugee admissions pending a security review of its program. Despite a presidential designation to admit 70,000 refugees in fiscal year 2002, only 27,000 were allowed to enter, and refugee admissions in the first months of fiscal year 2003 continue at a trickle. The refugee process is perhaps the most difficult and unlikely path a terrorist could take to reach the United States. The September 11 terrorists opted for a far easier route, i.e., they entered legally on temporary visas. Despite this reality, the Administration has failed to explain why decreasing refugee admissions will make us safer.
Other putative antiterror measures seem more reasonable at first glance. In July 2002, the Department of Justice (DOJ) announced plans to enforce a law that requires immigrants to report changes of address within ten days after they move. Law enforcement officials could definitely benefit from a database with the correct addresses of the 31 million foreign-born persons in the United States, or of every US citizen for that matter. However, the change-of-address plan will not accomplish this goal. Among other problems, it ignores the INS track record of losing and misplacing documents. INS reports collecting more than 2 million lost documents, 200,000 of them change-of-address cards. In addition, according to the General Accounting Office, the INS "lacks adequate procedures and controls to ensure that the alien address information it receives is completely processed." Since DOJ's announcement, the agency has received an estimated 700,000 change-of-address notices. Not surprising, it has not processed the vast majority of these forms. GAO also pointed out that immigrants who do not wish to be detected "would not likely comply" with this requirement. This would certainly hold true for terrorists. In the circumstances, the change-of-address initiative seems an ineffective antiterrorist tool. Moreover, it diverts resources from more targeted security measures.
Perhaps the most strained use of national security to justify immigration restrictions can be found in DOJ's treatment of Haitian boat people. On December 14, 2001, the Bush Administration ordered that Haitians caught trying to enter the United States be immediately detained. This represented a return to a discredited policy of detaining migrants from a particular nation in order to deter others from coming. International law disfavors detention of asylum-seekers (as many Haitians have proven to be) and requires individual custody decisions. In response to protests, DOJ announced that it would resolve the inconsistency in treatment between Haitians and other migrants by making its severe policy toward Haitians the norm. With the exception of Cubans, INS will now subject all undocumented migrants who have arrived by boat and have not been physically present in the United States for two years to detention and a process of expedited return. Even those found to have a "credible fear" of persecution, and could thus be legally released, will remain confined. DOJ cannot persuasively argue that indigent boat people, fleeing poverty and persecution, represent a terrorist threat. Rather, it makes the attenuated claim that the new policy will ensure that the Coast Guard focuses on its antiterror responsibilities without being diverted by detaining boat people.
These three measures hardly represent the only examples of migration policies whose efficacy as antiterror tools have been challenged. Vincent Cannistraro, the former head of counterterrorism at the Central Intelligence Agency, argues that the detention of thousands of Middle Eastern and South Asian nationals after September 11 risked "alienat[ing] the very people on whom law enforcement depends for leads." DOJ's initiative to use state and local police to enforce federal immigration laws has faced similar criticism by law enforcement officials. Undocumented immigrants will not cooperate with the police if it might result in deportation. Yet their cooperation will be crucial to homeland security.
The war on terror must be aggressive, but it must be smart. The government needs to adopt measures that reflect our core values and that meaningfully promote security. It needs to explain how its tactics achieve both goals. It should not squander its own credibility with measures that undermine our nation's guiding principles but do little to make us safer.