On November 25, 2002, President George W. Bush signed the Homeland Security Act (HSA) of 2002. As a staffer, I worked on the HSA and, among other things, it abolished my former employer, the Immigration and Naturalization Service (INS), and created the Department of Homeland Security (DHS). A failure to enforce the immigration laws led to passage of the HSA, but it’s difficult, two decades on, to think of it as much more than a noble, but failed, experiment.
Amnesty and September 11th. Even before September 11, 2001, many on Capitol Hill had begun the process of “reorganizing” the INS to improve its performance.
Proposals were sketched out on yellow legal pads to separate out the enforcement programs at the agency (Border Patrol, detention and removal, intelligence, investigations, and inspections) from the adjudications branches, and to place an experienced law-enforcement professional in charge of the former.
That change was borne out of a concern that individuals who did not believe in the enforcement mission of the agency could potentially hijack it and refuse to apply the laws as written.
You can still see echoes of those changes in the requirement in section 442 of the HSA that the assistant secretary of the Bureau of Border Security (a position I will return to below) “have a minimum of 5 years professional experience in law enforcement, and a minimum of 5 years of management experience”.
Forgotten in the wake of the September 11th attacks is that concerns about the ramifications of a then-proposed amnesty spurred many of those proposed changes. Few remember that five days before September 11th, Mexican President Vicente Fox addressed a joint session of Congress, where he stated:
There is one crucial fact that we must not lose sight of. Migration flows [that] respond to deep underlying economic incentives are all but impossible to stop and must instead be regulated. Mexico is therefore seeking an agreement that will lend greater security and orderliness to the migration flows between our two countries.
This [is] why trust in dealing with migration entails reaching common ground to address the status of Mexican migrants already working and living in the United States, already contributing to enrich this Nation. Let me be clear about this: regularization does not mean rewarding those who break the law. Regularization means that we will provide them with the legal means to allow them to continue contributing to this great Nation.
...
Progress regarding migration will not be easy. Yet it is essential that we maintain our commitment to an open and frank discussion, so that we may find a lasting solution that is acceptable to both our countries. [Emphasis added.]
Congress knew that somewhat veiled amnesty pitch was coming, because as soon as he arrived at the White House to meet President Bush just before delivering that address, Fox made the following statement:
We must and we can reach an agreement on migration before the end of this very year which will allow us before the end of our respective terms to make sure that there are no Mexicans who have not entered this country legally in the United States. ... And that those Mexicans who have come into the country, do so with a proper documents. [Emphasis added.]
Amnesty had been a hot topic (Bush’s first foreign trip as president was to Mexico), and restructuring the INS before that happened was a key concern for many in Congress.
Needless to say, however, that amnesty talk was shelved indefinitely on the morning of September 11th, as Americans became more aware of the threats that illegal immigration posed to the national security.
Bush named Pennsylvania Governor Tom Ridge (R) as his “Homeland Security czar” on September 21, 2001, and just over two weeks later, on October 8, 2001, created a cabinet-level “Office of Homeland Security”, which was to be headed by an “Assistant to the President for Homeland Security”.
Although some in Washington were calling for that office to be turned into an actual department, with components drawn from various other agencies, others were cool to the idea.
Atta and Al-Shehhi. That ambivalence began to change after the events of March 11, 2002 — six months to the day after the September 11th attacks. That day, the INS informed Huffman Aviation, a flight school in Venice, Fla., that M1 student visas had been approved for two of its former pupils, Mohamed Atta and Marwan Al Shehhi — 9/11 terrorists who'd been dead for six months.
If those names aren’t familiar, here’s some history.
Atta was an Egyptian national who had last entered the United States on July 19, 2001, on a B1/B2 visitor visa that he had obtained at the U.S. consulate in Berlin, while Al-Shehhi, from the United Arab Emirates, last entered on July 19, 2001, with a B1/B2 visa that he had secured at the U.S. consulate in Dubai.
Both had initially entered the United States separately in the late spring of 2000, after which each enrolled at Huffman Aviation on July 3, 2000.
As the 9/11 Commission's staff report on terrorist travel noted: “Neither violated his immigration status: attending flight school was permitted as long as their entrance to the United States was legal and they sought to change their status before the expiration of their length of stay.”
Atta and Shehhi each mailed his application to change his nonimmigrant status from B1/B2 to vocational student (M1) to the INS on September 15, 2000, with each requesting that his status be maintained until September 1, 2001.
Atta departed the United States on January 4, 2001, having overstayed his B1/B2 admission by a month, and effectively abandoning his request for a nonimmigrant visa change. When he returned on January 10 through Miami, there was some discussion with the INS inspectors about his inadmissibility, but he was eventually granted an eight-month entry — two months longer than his status would have allowed.
Shehhi left on January 11, 2001, and came back through at JFK a week later. That aroused some suspicions that he was an intending immigrant, given his brief departure, but he was soon also admitted, for four months. As with Atta, Shehhi had effectively abandoned his request for a change in his nonimmigrant visa status when he left the country.
Shehhi thereafter left the United States again at some point, reentering as a B2 tourist on May 2, 2001. Atta left on July 7, 2001, and reentered 12 days later as a B1 business visitor. Both came in without apparent incident.
We know a lot about each man because Atta, along with Abdul Aziz al Omari, Waleed al Shehri, Satam al Suqami, and Wail al Shehri hijacked and seized control of American Airlines Flight 11, which Atta then crashed into the North Tower of the World Trade Center on September 11, 2001.
Shehhi assisted Mohand al Shehri, Hamza al Ghamdi, Fayez Banihammad, and Ahmed al Ghamdi in seizing control of United Airlines Flight 175. Shehhi then flew that plane into the South Tower 17 minutes after Atta.
That’s why they had gone to flight school to begin with.
Atta and Shehhi were household names within days of the attack, which made INS’s notification to Huffman Aviation six months to the day after September 11th that their requests for a change in their nonimmigrant statuses had been approved came as such a shock.
INS spokesman Russ Bergeron all-but admitted that at the time, stating:
I think it is certainly embarrassing that the letters show up at this late date. ... It does serve to illustrate what we have been saying since 1995 — that the current system for collecting information and tracking foreign students is antiquated, outdated, inaccurate and untimely.
Members of Congress from both sides of the aisle quickly concluded that it wasn’t just INS’s “current system for collecting information and tracking foreign students” that was “antiquated, outdated, inaccurate and untimely” — it was the agency itself.
Here is Rep. Sheila Jackson-Lee (D-Texas), then-ranking member of the Subcommittee on Immigration and Claims, on the floor of the House on March 14, 2002, (published under the header “Scandalous INS Error Should Lead to Reform”):
Mr. Speaker, scandalous. Mr. Speaker, absolutely scandalous, when the INS issues a visa to two deceased terrorists who in fact were part of the September 11 tragedy.
What needs to be done is that the INS has to be demanded right now to implement their visa tracking system. The President has to order them to implement the program that already exists.
What else has to happen? The INS has to be restructured, not abolished. We must recognize that there are two distinct responsibilities, but they must be coordinated by a Deputy Attorney General for Immigration Affairs.
And the chairman of that subcommittee, Rep. George Gekas (R-Pa.) shortly after (published under the header “Restructuring the Immigration and Naturalization Service”):
Madam Speaker, I say to the Speaker and to the Members that the ghost of Mohamad Atta has attacked our Nation. Following the real Mohamad Atta and his crash into the World Trade Center, his ghost, like ashes left at Ground Zero, has arisen and entered the public consciousness again.
This time, as everyone knows by now, we learned from the aviation school in Florida that the visa for Mohamad Atta has been approved, 6 months to the day after the real Mohamad Atta crashed into our Twin Towers.
This, of course, is unacceptable, and the President of the United States has said so, and the President immediately took action to start the investigation into the matters that led to this unseemly development in the school in Florida.
But it brings to mind that the President of the United States, as candidate George W. Bush in the Year 2000, noted that his observation of the Immigration and Naturalization Service was such that it could not go on in the structure that was extant at that time, that we must separate the law enforcement segment of INS from that of the process of visas and naturalization and citizenship.
This is a theme which members of the Committee on the Judiciary took to heart, and we have introduced legislation and worked on legislation for bifurcation of the INS so that we can home in on student visas, like the kind that Mohamad Atta abused, so we can home in on those who overstay their visas, like the Mohamad Attas of the world, so that we can keep track of the attendance of students in our country and note the end of their scholarship at a particular institution and then take steps, when necessary, to make sure they leave the country at the expiration of the visas.
To be fair to the INS, Atta’s application had actually been approved on July 17, 2001, as was Shehhi’s 23 days later. Not that this proves anything other than Bergeron’s point, or that it was going to placate members bent on tearing INS apart and reassembling it.
Of course, once Congress starts tearing down and reassembling one agency, impetus builds to do the same thing to all the patchwork of agencies that — in one way or another — were responsible for the vague and undefined task of “securing the homeland”.
By June 2002, Bush had issued a formal framework to create a new Department of Homeland Security, which he described as “the most significant transformation of the U.S. government in over a half-century by largely transforming and realigning the current confusing patchwork of government activities into a single department whose primary mission is to protect our homeland.”
On June 24, 2002, House Majority Leader Dick Armey (R-Texas) introduced H.R. 5005, the HSA, with 113 initial cosponsors (Reps. Adam Schiff (D-Calif.) and Mike Pence (R-Ind.) signed on as cosponsors two weeks later). Thirty-two days after it was introduced, it had cleared 12 separate committees and passed the House by a vote of 295 to 132. Things took a bit longer to get through the Senate, but nonetheless the bill was passed by the upper chamber on November 19, 2002, with 90 yeas and nine nays.
Ridge was named secretary of DHS on January 24, 2003, and INS was formally abolished on March 1, the new department’s formal birth date. Few were sad to see the INS go.
Defending the homeland was viewed as the most important duty of the federal government and many, including more than a few of my fellow staffers, were anxious to head over to the new department and help Secretary Ridge out.
The Sausage Grinder. By the time the Bush administration put the HSA through its sausage grinder and rolled out its work chart for the new DHS, however, it did not look much like what had been passed.
There was no “Bureau of Border Security”, headed by an assistant secretary and answering to an undersecretary for border and transportation Security.
Instead, the administration produced a pair of two-headed monsters, ICE and CBP, with the interior enforcement activities of the Customs Service (which was specifically transferred to DHS under section 411 of the HSA) merged in with the old INS interior enforcement units to form the former, and Customs, border, and port personnel thrown together with INS’s inspectors and Border Patrol agents to form the latter.
The White House was likely given too much latitude in section 1502 of the HSA (“Reorganization Plan”) to monkey around with the organization of the department.
In a move that was almost too cute by half, however, the administration renamed the Bureau of Border Security the “Bureau of Immigration and Customs Enforcement”, while the Customs Service was renamed the “Bureau of Customs and Border Protection”. It wasn’t until 2007 that the department dropped the “bureau” part and substituted “U.S.” instead.
CBP got the better end of the deal, receiving most of the structure and authorities from the old Customs Service (and its flag). ICE was built upon the old INS framework, which worked about as well as Bergeron’s statement would suggest. I fielded complaints for years from former INS agents who complained that the legacy Customs folks got all the good positions.
Congress did get the USCIS that it had planned, and an ombudsman for that agency as directed, but then there was no way that much else could have happened.
Section 471(b) of the HSA expressly barred recombination of the functions and organizational units within the Bureau of Border Security or the Bureau of Citizenship and Immigration Services “into a single agency” or otherwise combining or consolidating the “functions or organizational units of the two bureaus with each other”.
“Mission Creep”. Curiously, one of the main complaints about the INS was that it suffered from “mission creep”, in that it was expected to perform the divergent tasks of both keeping immigrants out and letting them in.
The tasks assigned to ICE and CBP are not necessarily divergent, but each agency — and the latter in particular — are now expected to carry out a spectrum of duties that often have little if anything to do with one another.
Consider the CBP September press release trumpeting the seizure of 50 wheels of undeclared cheese at the El Paso, Texas, port of entry (street value undetermined), even while agents are straining to deal with an unprecedented surge of illegal migrants at the Southwest border.
Or ICE patting itself on the back for returning “64 relief carved stone heads, a bronze inscribed bowl, a stone Funerary Stele from around the 1st century BCE, and 11 pages from an 8th century Quran” in February, while ICE removals of alien murderers, drug dealers, and rapists plummeted.
In 2018, a group of special agents who staff ICE’s Homeland Security Investigations (HSI) unit wrote a letter to the then-secretary asking out of the agency, largely because they didn’t want to be sullied by association for “targeting undocumented aliens, instead of the transnational criminal organizations that facilitate cross border crimes impacting our communities and national security”.
Somewhere over the past 20 years, DHS lost its way. Congress was thinking small when all it was concerned about was an INS commissioner who wasn’t serious about enforcement. Today, it’s the DHS secretary who is so uninterested in securing the border that congressional Republicans are vying with one another to impeach him.
In 1885, Mark Twain wrote a biographical sketch titled “The Private History of a Campaign that Failed”, a look at his brief stint in a pro-Confederate Missouri militia unit at the outbreak of the Civil War. He hated slavery, however, and feared death, and so he skedaddled after two weeks and headed west for the Nevada Territory, where his brother was secretary.
Back on September 11th and the months that followed, Congress faced a threat that appeared — at the time — to be as serious as secession had been in the spring of 1861. It used the powers that it had to respond to that threat, and the most lasting remnant of that effort is DHS itself.
As I look back after two decades at the bloated and ineffective behemoth DHS has become, wholly unable and/or unwilling to perform a key task that Congress assigned it — preventing unauthorized aliens from entering the United States and finding and removing the ones who are here — I am reminded of Twain. You can consider this my “Private History of a Campaign that Failed”.