Widening Existing Vulnerabilities, Part 1

By Janice Kephart on July 8, 2013

(Ms. Kephart recently returned from a Special Counsel position with the Senate Judiciary Committee, where she advised and supported Senator Jeff Sessions' (R-AL) work during the committee's consideration of immigration legislation.)

The national security implications of the recently passed Senate immigration bill, S.744 (the "Border Security, Economic Opportunity and Immigration Modernization Act") are pervasive. The kinds of damage that S.744 would do to national security, if passed, are manifold and are at least as bad as the border security provisions that have received significant attention.

S.744's provisions are aggressive in downgrading national security, displacing well-established immigration legal and policy safeguards. Much of the current law (drafted by President Clinton's Department of Justice) evolved from the clear provisions of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act. That Act significantly strengthened Immigration and Nationality Act based on the immigration facts and circumstances of the conspirators who committed the February 1993 attack on the World Trade Center, which focused on enabling law enforcement to address immigration violations in the aftermath of a terrorist attack. S.744 also eliminates key immigration measures created in the aftermath of the September 11 terrorist attacks primarily to keep terrorists from gaining access to the United States or embedding and procuring legal immigration status if already here.

Unfortunately, instead of further shoring up immigration law in response to the Boston Marathon bombers and other recent terrorist attempts by foreign nationals, including the Christmas Day and Times Square bombers since 9/11, S.744 looks the other way. Here is what Sen. Schumer (D-NY) said at opening of the Judiciary Committee hearings on S.744 on April 22, 2013:

SEN. SCHUMER: I say that particularly those who are pointing to what happened, the terrible tragedy in Boston, as a, I would say, excuse for not doing a bill or delaying it many months or years.

SEN. GRASSLEY: I never said that.

SEN. SCHUMER: I didn't say you did.

SEN. GRASSLEY: I never said that.

SEN. LEAHY: (Sounds gavel.)

SEN. SCHUMER: I didn't say you did, sir.

SEN. GRASSLEY: I didn't say -- (inaudible) -- bill.

SEN. SCHUMER: I don't mean you, Mr. Grassley.

In some instances, S.744 even repeats mistakes of the 1986 Immigration Reform and Control Act (IRCA). In others, S.744 trumps IRCA, widening existing vulnerabilities and paving the way for terrorists and felons to obtain visas and embed in America, or convert their illegal status to a legal status. While the sponsors of S.744 assert that the bill is strong on enforcement and security, a close reading proves otherwise. None of these issues changed markedly during consideration of the bill through to its final passage on June 28, 2013.

The remaining segments of this report will address some of the largest national security vulnerabilities of S.744, which:

  • Creates three, completely contradictory requirements for an exit-tracking program for foreign visitors, watering down the current legal mandate for a biometric system at air, land, and sea ports to only the 30 largest airports in six years, and no biometric exit requirement for sea or land ports.
  • Strikes the current legal mandate that requires visa interviews for most applicants, and enabling the Secretary of State's narrow visa interview waiver authority to apply to whole classes of persons.
  • Strikes current legal mandate that no frivolous asylum claim be filed, and that such fraud bars an individual from future immigration benefits.
  • Fails to define background checks or require interviews for legalization applicants, many of whom have no valid ID documents.
  • Fails to define background checks or require interviews for amnesty recipients seeking to adjust to permanent status.
  • Fails to require that U.S. Citizenship and Immigration Services, which adjudicates immigration benefits, to make electronic filing available prior to legalization applicants seeking to adjust status.
  • Enables absconders, and those previously ordered removed or deported by immigration court and out of the country, to return and seek legalization.
  • Requires confidentiality for all legalization applications, even in cases of pending criminal, civil, or national security investigations.
  • Ignores the Secretary of Homeland Security's request to be given explicit authority to revoke visas in instances of national security, such as reflected in the specific fact findings relating to the Christmas Day bomber.

In early May, only two weeks after introduction, the 800-plus page S.744 was marked up by the Senate Judiciary Committee (eventually adding more than 300 more pages by the time of passage). The markup took over two weeks to complete. Numerous amendments were offered to rectify a diversity of issues throughout the bill, including those focusing on national security, mostly offered by Senators Chuck Grassley (R-IA) and Jeff Sessions (R-AL). Every single national security amendment was either rejected or heavily modified so that the initial amendment offered was accepted with even more troublesome language.

Troublesome as well were the responses to these amendments. The amendments either reflected maintaining current law, or simply provided coherence to current national security-related immigration law or improved drafting of the underlying bill. In many cases, the actual substance of the amendment was not addressed at all, and there was a rejection vote with little discussion. Other amendments entailed heated debate. Perhaps most notorious was the discussion of "biometric exit," what it requires under current law, and its cost and feasibility.

Equally disturbing were some of the ill-informed responses provided by the supposed subject matter experts among the Gang of Eight and others. Basic understanding of both law and policy were often absent. Below are the most notable comments made to reject national security amendments in the committee markup. All were taken directly from the transcripts of the markup:

1. Chairman Leahy (D-VT) offered the only rationale for rejection of an amendment that would prohibit deportation absconders from legalizing: "I understand that the sponsors of the overall bill are opposed to this because of the number that would be excluded from RPI (Registered Provisional Immigrant) status."

2. Sen. Schumer (D-NY) on the human face being a better biometric marker than fingerprints or the iris of the eye: "They can't change your – it's the hardest – hardest thing – it's harder to change your face than change your fingerprint... Well, you know, you can always change the iris of your eye too."

3. Sen. Schumer on requiring USCIS to make electronic filing available for applicants as a trigger to adjusting status: "It's going to slow things down dramatically. It will be impossible – it could take a year, 18 months, 2 years before this would be effectuated. And so I would urge the amendment be defeated... We hope that most folks could get in within 6 months."

4. Sen. Durbin (D-IL) on not needing to define terminology used in the bill: "I think America post 9/11 understands the phrase "low security risk". Those three words are very obvious. We are talking about Mexican mothers visiting a sick child. No risk there."

5. Sen. Hirono (D-HI) on why interviews are not important when databases can be used instead to "inform visa decision-making", contradicting the explicit findings of the 9/11 Commission: "With the advances in technology and data sharing, we need to look beyond just the interview process to inform visa decision-making. ... Clearly when they consult with the DHS, which is all about security, I think that we can feel assured that the provisions of the bill are reasonable."

6. Sen. Schumer on his exit-tracking solution as just as good as biometrics to verify identity: "The picture is tamper proof and every bit as secure in terms of not letting people in as a biometric."

7. Sen. Durbin on the need to eliminate the one-year deadline for asylum claims that exists in current law, unaware that in practice the one-year bar is already largely ignored: (1) "Many people who are eligible for asylum don't realize it;" (2) "instead of going to the merits of the claim, we spend most of our time arguing about whether one year has passed... that has created an artificial bar" to valid asylum claims.