All of a sudden, the world changes. Vague and undefined "existential threats" — be they climate change, quid-pro-quos, or just the president himself — get replaced by more imminent threats. That has been true in immigration in the past — and it is again.
Before September 11, there was actually an active question as to how great a threat the United States faced from alien terrorists, and how (and in particular, with how much effort) the United States should respond to that threat, a fact that seems to have been largely forgotten.
For example, the 1999 National Commission on Terrorism (NCT), which had been created by Congress to evaluate "America's laws, policies, and practices for preventing and punishing terrorism directed at American citizens", released a report detailing its findings in June 2000.
The Commission called all the right people (including me) to appear before it, and said all of the right things: "International terrorism poses an increasingly dangerous and difficult threat to America." "Countering the growing danger of the terrorist threat requires significantly stepping up U.S. efforts." "Priority one is to prevent terrorist attacks."
It discussed a lack of coordination among our intelligence and law enforcement agencies, and recommended an elimination of the barriers that prevented the "aggressive collection of information on terrorists", conclusions that were echoed by the 9/11 Commission in its final report.
As it related to alien attacks on the homeland, however, the findings were surprisingly weak and hopeless. For example, the NCT stated:
In spite of elaborate immigration laws and the efforts of the Immigration and Naturalization Service, the United States is, de facto, a country of open borders. The Commission found that the massive flows of people across U.S. borders make exclusion of all foreign terrorists impossible. There are more than 300 million legal crossings each year at the U.S./Mexican land border alone. Millions more stream through our airports.
Beyond the millions who legally come and go, over four million persons reside illegally in the United States. About half of them entered the country without inspection, meaning they crossed U.S. borders between inspection stations or entered by small boat or aircraft. Roughly another two million people entered the United States with a valid visitor's visa, but overstayed their visa and remained here to live. That said, of the millions who come here to live or visit only a minuscule portion of all foreigners in the United States attempt to harm the country in any way. [Emphasis added.]
The first highlighted portion doesn't sound good, and as for the second, as the 9/11 Commission's report showed (and as we all now know) that "miniscule portion" of immigrants can do a lot of damage to the well-being of our people, our economy, and our national security.
Plainly, the NTC recommended a strong U.S. response, though, right? Well ...
The Commission recognized that alien students from "countries officially designated as state sponsors of terrorism" posed a particular risk. It therefore found that the pilot foreign-student tracking system then known as the "Coordinated Interagency Partnership Regulating International Students" (CIPRIS), which has subsequently become the "Student and Exchange Visitor Information System" (SEVIS), "could become a model for a nationwide program monitoring the status of foreign students."
That "could" should have been a "should". As my colleague Steven Camarota found, a number of alien terrorists, including 9/11 ringleader Mohammed Atta (who piloted the plane into the North Tower of the World Trade Center), Marwan Al Shehi (who piloted the plane into the South Tower of the World Trade Center), and Zacarias Moussaoui (who pleaded guilty to conspiring with the 9/11 hijackers and who claimed "he was training to fly a different plane into the White House as part of a different plot on a different day"), either had approved student visas or had applied for them.
With respect to the removal of alien terrorists, however, the NTC's report was particularly off the mark. It strongly recommended that the government use the Alien Terrorist Removal Court (ATRC), which is provided for in section 502 of the Immigration and Nationality Act (INA) to remove suspected terrorist aliens. It explained:
In 1996, Congress established the [ATRC]. The legislation authorized use of classified information in cases involving the expulsion of suspected terrorists, but the law provided several protections for the accused, including the requirement that the alien be provided an unclassified summary of the classified evidence and appellate review by federal courts. For aliens legally admitted for permanent residence, the law allowed the use of special attorneys who hold security clearances (cleared counsel) who are permitted to review secret evidence on behalf of an alien and challenge its veracity.
The ATRC has never been used. Rather, pursuant to other statutes and case law, the Immigration and Naturalization Service (INS) has acted to remove aliens based on classified evidence presented to an immigration judge without disclosure to the alien or defense counsel.
The U.S. Government should not be confronted with the dilemma of unconditionally disclosing classified evidence or allowing a suspected terrorist to remain at liberty in the United States. At the same time, resort to use of secret evidence without disclosure even to cleared counsel should be discontinued, especially when criminal prosecution through an open court proceeding is an option. [Emphasis added.]
I am a strong supporter of due process, but this recommendation missed a key point as it related to suspected alien terrorists who had been subject to regular (non-ATRC) removal or deportation proceedings instead of the elaborate procedures required by the ATRC.
Most of those who were suspected of being terrorists were removable on other grounds of removal (such as overstaying a visa), which they generally conceded with the intent of seeking relief (generally asylum) in removal proceedings. It was at that stage that the INS would offer classified evidence to oppose those applications.
Immigration regulations, then and now, specifically provide for the consideration of classified information in connection with applications for asylum in removal proceedings (8 C.F.R. § 1240.11(c)(3) (iv)), exclusion proceedings (8 C.F.R. § 1240.33(c)(4)), and deportation proceedings (8 C.F.R. § 1240.49(c)(4)(iv)).
The only regulatory requirement is that if the government does use such evidence and decides to provide the respondent with an unclassified summary (it is not required to do so), that it "be as detailed as possible, in order that the applicant may have an opportunity to offer opposing evidence," and that the immigration judge "state whether such information is material to the decision."
Similarly, the regulation governing applications for adjustment of status, 8 C.F.R. § 1240.11(a)(3) permits the use of classified evidence in connection with such applications, with a provision that the immigration judge "inform the alien of the general nature of the information in order that the alien may have an opportunity to offer opposing evidence" if the immigration judge "believes that he or she can do so while safeguarding both the information and its source."
The Supreme Court specifically held in Jay v. Boyd that it was allowable to for the court consider such evidence, pursuant to regulation.
The ATRC procedures, on the other hand, require the government to prove that the alien is removable on terrorist grounds as a precondition to proceedings. Again, that placed an unnecessary burden on the government in the case of an alien who was otherwise removable on other grounds. In such cases, the alien bears the burden of proving eligibility for relief.
I would note that the consideration of classified evidence in removal proceedings had, at the time, been the subject of congressional hearings, as well as proposed legislation, the "Secret Evidence Repeal Act of 2000". Both George W. Bush and Al Gore criticized the use of such evidence during their campaigns for president in 2000, with Gore stating: "Secret evidence is completely abhorrent to everything the United States stands for." All of this painted the INS as the bad actor, and had a chilling effect on its use of such evidence in cases of suspected alien terrorists, at exactly the wrong point in American history.
The 9/11 attacks snapped the United States out of its complacency on the threat posed by alien terrorism, and the need to remove aliens who pose a terrorist risk to the United States. Too late to avoid the carnage of that day, but likely at a point that other, more deadly attacks were prevented.
Fast forward 20 years, and President Trump has been criticized for his immigration policies, perhaps best exemplified by the following "Perspective" piece from the Washington Post in November 2019:
Trump may be the most xenophobic American leader in United States history. From the effort to restrict immigrants from mostly Muslim countries and the drastic reduction in refugee admissions, to efforts to build a wall along the U.S.-Mexico border and the denial of asylum seekers from Central America, Trump's policies have transformed immigration to the United States.
There is much that can be said about certain statements of the president on the issue of immigration, but at their core, his policies have been intended to enforce the immigration laws of the United States as set forth in the INA. And those laws exist for a reason, having nothing to do with "xenophobia", but rather with protecting the American people, citizens and lawful immigrants alike, from a variety of threats and challenges.
For example, section 212(a)(2) of the INA bars certain foreign nationals with criminal histories from admission to the United States, section 212(a)(3) bars the admission of foreign nationals who pose a terrorist or security risk, and section 212(a)(4) bars those who would become public charges. Section 212(a)(6) of the INA bars those who have bypassed the visa screening system (which likely would have determined that the foreign national was inadmissible on other grounds) by entering illegally, as well as those who have sought entry through fraud.
Most saliently for the main issue facing the United States today, section 212(a)(1) of the INA bars aliens determined "to have a communicable disease of public health significance". Like the Wuhan virus (or "COVID-19", if you prefer).
On January 31, the president announced that the government would bar all foreign nationals who had been in China in the last 14 days from entering the United States (with certain exceptions). On March 11, the president barred travel for foreign nationals from Europe to the United States for 30 days. Whether these are the right moves or not, and whether they will slow the spread of the illness to the United States to give our health system the time it needs to respond, I am not qualified to assess. But the president has faced criticism for those actions.
Specifically, with respect to the president's March 11 announcement, CNN stated: "While he sought to strike a unifying note for the country, his attempts to pin blame abroad for the outbreak were unmistakable."
Following the president's January 31 announcement, The Hill reported:
Former Vice President Joe Biden hammered President Trump for cutting health programs amid an outbreak of the coronavirus that originated in China and has since spread to the U.S.
"We have, right now, a crisis with the coronavirus," Biden said in Iowa Friday. "This is no time for Donald Trump's record of hysteria and xenophobia — hysterical xenophobia — and fearmongering to lead the way instead of science."
I have no idea what the president's "cutting [of] health programs" (a fact that has been disputed — by FactCheck.org, no less) has to do with "hysteria and xenophobia — hysterical xenophobia", but it sure sounds to me that the Democratic presidential candidate is complaining about the president's immigration policies — including the China travel restrictions — not federal funding.
All of that said, the president's actions in response to this threat by restricting travel to the United States are consistent with his other efforts to control immigration (especially and in particular unscreened illegal immigration) to the United States to protect the homeland. Now, as before September 11, it is not only good, but responsible, to remember why the immigration laws exist to begin with. Otherwise, we will be sitting through a movie that I have already seen, one that doesn't end well.