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NATIONAL SECURITY AND IMMIGRANT RIGHTS
by Donald Kerwin
The Nation
December 19, 2002
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.
Copyright © 2002 The Nation
by Donald Kerwin
The Nation
December 19, 2002
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.
Copyright © 2002 The Nation
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