| Keeping Terror Out
Immigration Policy and Asymmetric Warfare
By Mark Krikorian
The National
Interest
Spring 2004
Supporters of open
immigration have tried to de-link 9/11 from security concerns. “There’s no
relationship between immigration and terrorism,” said a spokeswoman for the
National Council of the advocacy group La Raza. “I don’t think [9/11] can be
attributed to the failure of our immigration laws,” claimed the head of the
immigration lawyers’ guild a week after the attacks.
President Bush has not gone that far, but in his January 7 speech proposing an
illegal alien amnesty and guest worker program, he claimed the federal
government is now fulfilling its responsibility to control immigration, thus
justifying a vast increase in the flow of newcomers to America. Exploring the
role of immigration control in promoting American security can help provide the
context to judge the president’s claim that his proposal is consistent with our
security imperatives, and can help to sketch the outlines of a secure
immigration system.
Home Front
The phrase “Home Front” is a metaphor that gained currency during World War
I, with the intention of motivating a civilian population involved in total war.
The image served to increase economic output and the purchase of war bonds,
promote conservation and the recycling of resources and reconcile the citizenry
to privation and rationing.
But in the wake of 9/11, “Home Front” is no longer a metaphor. As Deputy
Secretary of Defense Paul Wolfowitz said in October 2002,
“Fifty years ago, when we said, ‘home front,’ we were referring to citizens back
home doing their part to support the war front. Since last September, however,
the home front has become a battlefront every bit as real as any we’ve known
before.”
Nor is this an aberration, unique to Al-Qaeda or to Islamists generally. No
enemy has any hope of defeating our armies in the field and must therefore
resort to asymmetric means.1 And though there are
many facets to asymmetric or “Fourth-Generation” warfare—as we saw in Al-Qaeda’s
pre-9/11 assaults on our interests in the Middle East and East Africa and as we
are seeing today in Iraq. The Holy Grail of such a strategy is mass-casualty
attacks on America.
The military has responded to this new threat with the Northern Command, just as
Israel instituted its own “Home Front Command” in 1992, after the Gulf War. But
our objective on the Home Front is different, for this front is different from
other fronts; the goal is defensive, blocking and disrupting the enemy’s ability
to carry out attacks on our territory. This will then allow offensive forces to
find, pin, and kill the enemy overseas.
Because of the asymmetric nature of the threat, the burden of homeland defense
is not borne mainly by our armed forces but by agencies formerly seen as
civilian entities—mainly the Department of Homeland Security (dhs). And of dhs’s
expansive portfolio, immigration control is central. The reason is elementary:
no matter the weapon or delivery system—hijacked airliners, shipping containers,
suitcase nukes, anthrax spores—operatives are required to carry out the attacks.
Those operatives have to enter and work in the United States. In a very real
sense, the primary weapons of our enemies are not inanimate objects at all, but
rather the terrorists themselves—especially in the case of suicide attackers.
Thus keeping the terrorists out or apprehending them after they get in is
indispensable to victory. As President Bush said recently, “Our country is a
battlefield in the first war of the 21st century.”
In the words of the July 2002 National Strategy for Homeland Security:
Our great power
leaves these enemies with few conventional options for doing us harm. One such
option is to take advantage of our freedom and openness by secretly inserting
terrorists into our country to attack our homeland. Homeland security seeks to
deny this avenue of attack to our enemies and thus to provide a secure
foundation for America’s ongoing global engagement.
Our enemies have repeatedly exercised this option of inserting terrorists by
exploiting weaknesses in our immigration system. A Center for Immigration
Studies analysis of the immigration histories of the 48 foreign-born Al-Qaeda
operatives who committed crimes in the United States from 1993 to 2001
(including the 9/11 hijackers) found that nearly every element of the
immigration system has been penetrated by the enemy.2
Of the 48, one-third were here on various temporary visas, another third were
legal residents or naturalized citizens, one-fourth were illegal aliens, and the
remainder had pending asylum applications. Nearly half of the total had, at some
point or another, violated existing immigration laws.
Supporters of loose borders deny that inadequate immigration control is a
problem, usually pointing to flawed intelligence as the most important
shortcoming that needs to be addressed. Mary Ryan, for example, former head of
the State Department’s Bureau of Consular Affairs (which issues visas),
testified in January 2004 before the 9/11 Commission that
"Even under the
best immigration controls, most of the September 11 terrorists would still be
admitted to the United States today . . . because they had no criminal records,
or known terrorist connections, and had not been identified by intelligence
methods for special scrutiny."
But this turns out to be untrue, both for the hijackers and for earlier Al-Qaeda
operatives in the United States. A normal level of visa scrutiny, for instance,
would have excluded almost all the hijackers. Investigative reporter Joel
Mowbray acquired copies of 15 of the 19 hijackers’ visa applications (the other
four were destroyed—yes, destroyed—by the State Department), and every one of
the half-dozen current and former consular officers he consulted said every
application should have been rejected on its face.3
Every application was incomplete or contained patently inadequate or absurd
answers.
Even if the applications had been properly prepared, many of the hijackers,
including Mohammed Atta and several others, were young, single, and had little
income—precisely the kind of person likely to overstay his visa and become an
illegal alien, and thus the kind of applicant who should be rejected. And,
conveniently, those least likely to overstay their visas—older people
with close family, property, and other commitments in their home countries—are
also the very people least likely to commit suicide attacks.
9/11 was not the only terrorist plot to benefit from lax enforcement of ordinary
immigration controls—every major Al-Qaeda attack or conspiracy in the United
States has involved at least one terrorist who violated immigration law. Gazi
Ibrahim Abu Mezer, for example, who was part of the plot to bomb the Brooklyn
subway, was actually caught three times by the Border Patrol trying to sneak in
from Canada. The third time the Canadians would not take him back. What did we
do? Because of a lack of detention space, he was simply released into the
country and told to show up for his deportation hearing. After all, with so many
millions of illegal aliens here already, how much harm could one more do?
Another example is Mohammed Salameh, who rented the truck in the first World
Trade Center bombing. He should never have been granted a visa in the first
place. When he applied for a tourist visa he was young, single, and had no
income and, in the event, did indeed end up remaining illegally. And when his
application for a green card under the 1986 illegal-alien amnesty was rejected,
there was (and remains today) no way to detain and remove rejected green-card
applicants, so he simply remained living and working in the United States, none
the worse for wear. The same was true of Hesham Mohamed Hadayet, who murdered
two people at the El Al counter at Los Angeles International Airport on July 4,
2002—he was a visa overstayer whose asylum claim was rejected. Yet with no
mechanism to remove him, he remained and, with his wife, continued to apply for
the visa lottery until she won and procured green cards for both of them.
Ordinary immigration enforcement actually has kept out several terrorists
that we know of. A vigilant inspector in Washington State stopped Ahmed Ressam
because of nervous behavior, and a search of his car uncovered a trunk full of
explosives, apparently intended for an attack on Los Angeles International
Airport. Ramzi Binalshibh, one of the candidates for the label of “20th
hijacker,” was rejected four times for a visa, not because of concerns about
terrorism but rather, according to a U.S. embassy source, “for the most ordinary
of reasons, the same reasons most people are refused.” That is, he was thought
likely to overstay his visa and become an illegal alien. And Mohamed Al-Qahtani,
another one of the “20th hijacker” candidates, was turned away by an
airport inspector in Orlando because he had no return ticket and no hotel
reservations, and he refused to identify the friend who was supposed to help him
on his trip.
Prior to the growth of militant Islam, the only foreign threat to our population
and territory in recent history has been the specter of nuclear attack by the
Soviet Union. To continue that analogy, since the terrorists are themselves the
weapons, immigration control is to asymmetric warfare what missile defense is to
strategic warfare. There are other weapons we must use against an enemy
employing asymmetric means—more effective international coordination, improved
intelligence gathering and distribution, special military operations—but in the
end, the lack of effective immigration control leaves us naked in the face of
the enemy. This lack of defensive capability may have made sense with regard to
the strategic nuclear threat under the doctrine of Mutually Assured Destruction,
but it makes no sense with regard to the asymmetric threats we face today and in
the future.
Unfortunately, our immigration response to the wake-up call delivered by the
9/11 attacks has been piecemeal and poorly coordinated. Specific initiatives
that should have been set in motion years ago have finally begun to be enacted,
but there is an ad hoc feel to our response, a sense that bureaucrats in
the Justice and Homeland Security departments are searching for ways to tighten
up immigration controls that will not alienate one or another of a bevy of
special interest groups.
Rather than having federal employees cast about for whatever enforcement
measures they feel they can get away with politically, we need a strategic
assessment of what an effective immigration-control system would look like.
Homeland Security Begins Abroad
To extend the missile
defense analogy, there are three layers of immigration control, comparable to
the three phases of a ballistic missile’s flight: boost, midcourse, and
terminal. In immigration the layers are overseas, at the borders, and inside the
country. But unlike existing missile defense systems, the redundancy built into
our immigration control system permits us repeated opportunities to exclude or
apprehend enemy operatives.
Entry to America by foreigners is not a right but a privilege, granted
exclusively at the discretion of the American people. The first agency that
exercises that discretion is the State Department’s Bureau of Consular Affairs,
whose officers make the all-important decisions about who gets a visa. Consular
Affairs is, in effect, America’s other Border Patrol.4
In September 2003, dhs Under
Secretary Asa Hutchinson described the visa process as “forward-based defense”
against terrorists and criminals.
The visa filter is especially important because the closer an alien comes to the
United States the more difficult it is to exclude him. There is relatively
little problem, practically or politically, in rejecting a foreign visa
applicant living abroad. Once a person presents himself at a port of entry, it
becomes more difficult to turn him back, although the immigration inspector
theoretically has a free hand to do so. Most difficult of all is finding and
removing people who have actually been admitted; not only is there no specific
chokepoint in which aliens can be controlled, but even the most superficial
connections with American citizens or institutions can lead to vocal protests
against enforcement of the law.
Even before 9/11, some improvements had been made to the first layer of
immigration security: visas were made machine-readable and more difficult to
forge than in the past, and the “watch list” of people who should not be granted
visas was computerized, replacing the old microfiche-based system in place until
just a few years ago.
Since the attacks, further improvements have taken place. The State Department
has instituted the Biometric Visa Program at several consular posts and is
preparing to meet a statutory deadline later this year for all visas to have
biometric data, in the form of fingerprints and photographs. What’s more, under
a memorandum of understanding signed last fall,
dhs assumed oversight and veto
authority over the issuance of visas, and now has personnel overseeing visa
officers in a number of consular posts overseas, including in Saudi Arabia,
Egypt, Indonesia, Morocco, Pakistan, and the
uae.
Despite improvements, the most important flaw in the visa filter still exists:
the State Department remains in charge of issuing visas. State has a corporate
culture of diplomacy, geared toward currying favor with foreign governments. In
the context of visa issuance, this has fostered a “customer-service” approach,
which sees the foreign visa applicant as the customer who needs to be satisfied.
The attitude in management is summed up by the catchphrase of the former U.S.
consul general in Saudi Arabia: "People gotta have their visas!"5
Such an approach views high visa-refusal rates as a political problem, rather
than an indicator of proper vigilance.
Nor will oversight of visa officers by dhs
officials be an adequate antidote. As long as the decisions about raises,
promotions, and future assignments for visa officers are made by the State
Department, the culture of diplomacy will win out over the culture of law
enforcement. In the end, the only remedy may be to remove the visa function
from the State Department altogether.
Order at the Border
The next layer of
immigration security is the border, which has two elements: “ports of entry,”
which are the points where people traveling by land, sea, or air enter the
United States; and the stretches between those entry points. The first are
staffed by inspectors working for dhs’s
Bureau of Customs and Border Protection, the second monitored by the Border
Patrol and the Coast Guard, both now also part of
dhs.
This is another important chokepoint, as almost all of the 48 Al-Qaeda
operatives who committed terrorist acts through 2001 had had contact with
immigration inspectors. But here, too, the system failed to do its job. For
instance, Mohammed Atta was permitted to re-enter the country in January 2001
even though he had overstayed his visa the last time. Also, before 9/11 hijacker
Khalid Al-Midhar’s second trip to the United States, the
cia learned that he had been
involved in the bombing of the U.S.S. Cole—but it took months for his
name to be placed on the watch list used by airport inspectors, and by then he
had already entered the country. And in any case, there still are 12 separate
watch lists, maintained by nine different government agencies.
Political considerations fostered a dangerous culture of permissiveness in
airport inspections. Bowing to complaints from airlines and the travel industry,
Congress in 1990 required that incoming planes be cleared within 45 minutes,
reinforcing the notion that the border was a nuisance to be evaded rather than a
vital security tool. And the Orlando immigration inspector who turned back a
Saudi national—Al-Qahtani, now believed to have been a part of the 9/11 plot—was
well aware that he was taking a career risk, since Saudis were supposed to be
treated even more permissively than other foreign nationals seeking entry.
There were also failures between the ports of entry. Abdelghani Meskini
and Abdel Hakim Tizegha, both part of the Millennium Plot that included Ahmed
Ressam, first entered the country as stowaways on ships that docked at U.S.
ports. Tizegha later moved to Canada and then returned to the United States by
sneaking across the land border. And of course, Abu Mezer, though successfully
apprehended by the U.S. Border Patrol, was later released.
And finally, perhaps the biggest defect in this layer of security is the lack of
effective tracking of departures. Without exit controls, there is no way to know
who has overstayed his visa. This is especially important because most illegal
alien terrorists have been overstayers. The opportunities for failure are
numerous and the system is so dysfunctional that the
ins’s own statistics division
declared that it was no longer possible to estimate the number of people who
have overstayed their visas.
Certainly, there have been real improvements since 9/11. The US-VISIT system has
begun to be implemented, with arriving visa-holders being digitally photographed
and having their index fingerprints scanned; this will eventually grow into a
“check in/check out” system to track them and other foreign visitors. Also, the
45-minute maximum for clearing foreign travelers has been repealed. Lastly, all
foreign carriers are now required to forward their passenger manifests to
immigration before the plane arrives.
But despite these and other improvements in the mechanics of border management,
the same underlying problem exists here as in the visa process: lack of
political seriousness about the security importance of immigration control. The
Coast Guard, for instance, still considers the interdiction of illegal aliens a
“nonsecurity” mission. More importantly, pressure to expedite entry at the
expense of security persists; a dhs
memo leaked in January outlined how the US-VISIT system would be suspended if
lines at airports grew too long. And, to avoid complaints from businesses in
Detroit, Buffalo, and elsewhere, most Canadian visitors have been exempted from
the requirements of the US-VISIT system.
Also, there is continued resistance to using the military to back up the Border
Patrol—resistance that predates the concern for overstretch caused by the
occupation of Iraq. But controlling the Mexican border, apart from the other
benefits it would produce, is an important security objective; at least two
major rings have been uncovered which smuggled Middle Easterners into the United
States via Mexico, with help from corrupt Mexican government employees. At least
one terrorist has entered this way: Mahmoud Kourani, brother of Hizbollah’s
chief of military security in southern Lebanon, described in a federal
indictment as “a member, fighter, recruiter and fund-raiser for Hizballah.”
Safety Through Redundancy
The third layer of
immigration security—the terminal phase, in missile defense jargon—is interior
enforcement. Here, again, ordinary immigration control can be a powerful
security tool. Of the 48 Al-Qaeda operatives, nearly half were either illegal
aliens at the time of their crimes or had violated immigration laws at some
point prior to their terrorist acts.
Many of these terrorists lived, worked, opened bank accounts, and received
driver’s licenses with little or no difficulty. Because such a large percentage
of terrorists violated immigration laws, enforcing the law would be extremely
helpful in disrupting and preventing terrorist attacks.
But interior enforcement is also the most politically difficult part of
immigration control. While there is at least nominal agreement on the need for
improvements to the mechanics of visas and border monitoring, there is no elite
consensus regarding interior enforcement. This is especially dangerous given
that interior enforcement is the last fallback for immigration control, the
final link in a chain of redundancy that starts with the visa application
overseas.
There are two elements to interior enforcement: first, conventional measures
such as arrest, detention, and deportation; and second, verification of legal
status when conducting important activities. The latter element is important
because its goal is to disrupt the lives of illegal aliens so that many will
return home on their own (and, in a security context, to disrupt the planning
and execution of terrorist attacks).
Inadequacies in the first element of interior enforcement have clearly helped
terrorists in the past. Because there is no way of determining which visitors
have overstayed their visas, much less a mechanism for apprehending them, this
has been a common means of remaining in the United States—of the 12 (out of 48)
Al-Qaeda operatives who were illegal aliens when they took part in terrorism,
seven were visa overstayers.
Among terrorists who were actually detained for one reason or another, several
were released to go about their business inside America because of inadequate
detention space. This lack of space means that most aliens in deportation
proceedings are not detained, so that when ordered deported, they receive what
is commonly known as a “run letter” instructing them to appear for
deportation—and 94 percent of aliens from terrorist-sponsoring states disappear
instead.
Lack of coordination between state and local police and federal immigration
authorities is another major shortcoming. In the normal course of their work,
police frequently encounter aliens. For instance, Mohammed Atta was ticketed in
Broward County, Florida, in the spring of 2001 for driving without a license.
But the officer had no mechanism to inform him that Atta had overstayed his visa
during his prior trip to the United States. Although not an overstayer, another
hijacker, Ziad Samir Jarrah, was issued a speeding ticket in Maryland just two
days before 9/11, proving that even the most effective terrorists have run afoul
of the law before launching their attacks.
Perhaps the most outrageous phenomenon in this area of conventional immigration
enforcement is the adoption of “sanctuary” policies by cities across the
country. Such policies prohibit city employees—including police—from reporting
immigration violations to federal authorities or even inquiring as to a
suspect’s immigration status. It is unknown whether any terrorists have yet
eluded detention with the help of such policies, but there is no doubt that many
ordinary murderers, drug dealers, gang members, and other undesirables have and
will continue to do so.
The second element of interior enforcement has been, if anything, even more
neglected. The creation of “virtual chokepoints,” where an alien’s legal status
would be verified, is an important tool of immigration control, making it
difficult for illegals to engage in the activities necessary for modern life.
The most important chokepoint is employment. Unfortunately, enforcement of the
prohibition against hiring illegal aliens, passed in 1986, has all but stopped.
This might seem to be of little importance to security, but in fact holding a
job can be important to terrorists for a number of reasons. By giving them a
means of support, it helps them blend into society. Neighbors might well become
suspicious of young men who do not work, but seem able to pay their bills.
Moreover, supporting themselves by working would enable terrorists to avoid the
scrutiny that might attend the transfer of money from abroad. Of course,
terrorists who do not work can still arrive with large sums of cash, but this
too creates risks of detection.
That said, the ban on employment by illegal aliens is one of the most widely
violated immigration laws by terrorists. Among those who worked illegally at
some point were cia shooter Mir
Aimal Kansi; Millennium plot conspirator Abdelghani Meskini; 1993 World Trade
Center bombers Eyad Ismoil, Mohammed Salameh, and Mahmud and Mohammed Abouhalima.
Other chokepoints include obtaining a driver’s license and opening a bank
account, two things that most of the 9/11 hijackers had done. It is distressing
to note that, while Virginia, Florida, and New Jersey tightened their driver’s
license rules after learning that the hijackers had used licenses from those
states, other states have not. Indeed, California’s then-Governor Gray Davis
signed a bill last year intended specifically to provide licenses to illegal
aliens (which was repealed after his recall).
As for bank accounts, the trend is toward making it easier for illegal aliens to
open them. The governments of Mexico and several other countries have joined
with several major banks to promote the use of consular identification cards
(for illegals who can’t get other id)
as a valid form of identification, something the U.S. Department of the Treasury
explicitly sanctioned in an October 2002 report.
Finally, the provision of immigration services is an important chokepoint, one
that provides the federal government additional opportunities to screen the same
alien. There is a hierarchy of statuses a foreign-born person might possess,
from illegal alien to short-term visitor, long-term visitor, permanent resident
(green card holder) and finally, naturalized citizen. It is very beneficial for
terrorists to move up in this hierarchy because it affords them additional
opportunities to harm us. To take only one example: Mahmud Abouhalima—one of the
leaders of the first World Trade Center bombing—was an illegal-alien visa
overstayer; but he became a legal resident as part of the 1986 illegal-alien
amnesty by falsely claiming to be a farmworker, and he was only then able to
travel to Afghanistan for terrorist training and return to the United States.
There have been some improvements since 9/11 in the layer of security. Illegal
aliens who absconded after receiving their “run letters” are being, very slowly,
added to the fbi’s National Crime
Information Center (ncic) database,
widely used by state and local police. What’s more, the foreign-student tracking
system is finally operational and the pilot program to develop a system for
employers to verify the legal status of new hires was recently re-authorized and
expanded.
But the ambivalence about interior enforcement is even deeper and more
pronounced than in the two other layers of immigration control. There is a
general sense among many political leaders that enforcing the immigration law is
futile and, in any case, would displease important constituencies.
Former ins Commissioner James
Ziglar expressed the general resistance to linking immigration law with homeland
security when he said a month after the 9/11 attacks that “We’re not talking
about immigration, we’re talking about evil.” It is as if the terrorists were
summoned from a magic lamp, rather than moving through our extensive but
neglected immigration control system, by applying for visas, being admitted by
inspectors, and violating laws with impunity inside America.
Upholding the Law
Such ambivalence
about immigration enforcement, at whatever stage in the process, compromises our
security. It is important to understand that the security function of
immigration control is not merely opportunistic, like prosecuting Al Capone for
tax violations for want of evidence on his other numerous crimes. The
fbi’s use of immigration charges to detain hundreds of Middle
Easterners in the immediate aftermath of 9/11 was undoubtedly necessary, but it
cannot be a model for the role of immigration law in homeland security. If our
immigration system is so lax that it can be penetrated by a Mexican busboy, it
can sure be penetrated by an Al-Qaeda terrorist.
Since there is no way to let in “good” illegal aliens but keep out “bad” ones,
countering the asymmetric threats to our people and territory requires
sustained, across-the-board immigration law enforcement. Anything less exposes
us to grave dangers. Whatever the arguments for the president’s amnesty and
guest worker plan, no such proposal can plausibly be entertained until we have a
robust, functioning immigration-control system. And we are nowhere close to that
day.
Endnotes
1 See the National Defense University’s Institute for National Strategic
Studies 1998 Strategic Assessment: “Put simply, asymmetric threats or techniques
are a version of not ‘fighting fair,’ which can include the use of surprise in
all its operational and strategic dimensions and the use of weapons in ways
unplanned by the United States. Not fighting fair also includes the prospect of
an opponent designing a strategy that fundamentally alters the terrain on which
a conflict is fought.”
2 Steven A. Camarota, “The Open Door: How terrorists
entered and remained in the United States, 1993-2001” (Washington, dc: Center
for Immigration Studies, 2002).
3 “Visas for
Terrorists: They were ill-prepared. They were laughable. They were approved,”
National Review, October 28, 2002.
4 “America’s Other Border Patrol: The State
Department’s Consular Corps and its Role in U.S. Immigration,” by Nikolai
Wenzel, Center for Immigration Studies Backgrounder, August 2000,
http://www.cis.org/articles/2000/back800.html
5 Joel Mowbray, “Perverse Incentives; The State
Department rewards officials responsible for terror visas.” National Review
Online, October 22, 2002.
Mark Krikorian is executive director of the
Center for Immigration Studies.
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