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.
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" warfar - 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.
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/sites/cis.org/files/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.