A short while back, a particularly sharp congressional staffer observed to my colleague, CIS Director of Policy Studies Jessica Vaughan, that federal law provides for disciplinary sanctions against Department of State consular officers ("conoffs") who screw up in particular ways during the visa vetting and issuing process. The staffer wondered why there were no similar provisions for Department of Homeland Security (DHS) officers and agents working the spectrum of immigration benefits-granting and enforcement.
The provision the staffer was referring to is embedded in Public Law 105-236, the Foreign Relations Authorization Act of 1994-95. Section 140(c) requires conoffs to certify in writing that they have checked alien applicants against all applicable lookout systems and that no basis exists in any system to believe the alien is excludable; it further says that if the conoff fails to do so, a record will be made of the failure and adversely affect performance evaluations. Finally, it says this:
If an alien to whom a visa was issued as a result of a failure described in paragraph (1)(B) is admitted to the United States and there is thereafter probable cause to believe that the alien was a participant in a terrorist act causing serious loss of life or property in the United States, the Secretary of State shall convene an Accountability Review Board [disciplinary board] under the authority of Title III of the Omnibus Diplomatic Security and Antiterrorism Act of 1986.
The staffer posed an excellent question with regard to DHS, and Ms. Vaughan and I spent some time going back and forth pondering the answer (there isn't really a good one to explain the lapse), and even trying to envision how such a provision of law might look. Our tentative conclusion was, and is, that there should be parallel accountability structures.
However, because there are some substantial differences in working conditions and organizations from those experienced by conoffs in DOS — not to mention missions, goals, and end results, particularly when trying to tie accountability to enforcement actions (or lack thereof) — the language would need to be different.
What has also become painfully obvious during the course of this administration's two terms is that, where DHS and its subordinate agencies are concerned, such a law would also have to encompass leaders up to the highest levels of the department, given their propensity to meddle in cases, reverse benefits denials to achieve political or personal aims, or order inappropriate releases of criminal aliens from detention and the public welfare be damned.
With this in mind, we created a draft DHS accountability bill. This language is, of course, only one of many ways to skin the cat, which, as long as it sits in the "undone-and-not-even-contemplated" legislative box, remains akin to Schrodinger's famous cat. Is it alive? Is it dead? Does it even exist?
While there's no chance of DHS accountability legislation being enacted at this juncture, perhaps in the fullness of time something will be done.