George Fishman is a senior legal fellow at the Center for Immigration Studies.
- My colleague Todd Bensman has uncovered what appears to be active participation in alien smuggling by the Department of Homeland Security — collusion with Mexican authorities to direct and facilitate the illegal entry of large numbers of aliens across the Rio Grande River — carried out in order to further the Biden administration’s immigration agenda.
- The acts at the heart of these shocking allegations (if proven) would seemingly constitute criminal violations of the federal anti-alien-smuggling law, violations that carry with them potential punishment from a fine or one year’s imprisonment to life imprisonment or even the death penalty. Of course, the greatest culpability would lie with whoever in the Biden administration developed this scheme and ordered it to be carried out.
- The lessons that congressional Democrats and Independent Counsel Lawrence Walsh implored the nation to draw from the Iran/Contra Affair seem directly applicable here, among them being:
“The common ingredients of the Iran and Contra policies were secrecy, deception, and disdain for the law. A small group of senior officials believed that they alone knew what was right.”
Iran/Contra displayed “a vision of a government operated by persons convinced they have a monopoly on truth.”
With regards to Iran/Contra, “What may aptly be called the ‘cabal of the zealots’ was in charge.”
“Government officials must observe the law, even when they disagree with it.”
“The President must ‘take care’ that the laws be faithfully executed. This is both a moral and legal responsibility.”
“There is no place in Government for law breakers.”
“When a President ... chooses to skirt the laws or to circumvent them, it is incumbent upon his subordinates to resist, not join in.”
“[T]he failure to punish governmental lawbreakers feeds the perception that public officials are not wholly accountable for their actions.”
I can only hope that congressional Democrats will treat “Rio Grande-Gate” with the same seriousness they treated Iran/Contra, and apply their Iran/Contra lessons in good faith.
- We surely cannot count on Attorney General Merrick Garland’s Department of Justice to fairly investigate these allegations, if it even investigates them at all. Therefore, it is imperative that the attorney general appoint a special counsel to investigate and to bring prosecutions as appropriate, as he has already done in other instances.
- If Attorney General Garland fails to appoint a special counsel, or appoints a special counsel whose work turns out to be compromised, it is imperative that the next administration launch an investigation and bring prosecutions as appropriate. It will certainly be able to do so (unless President Biden wins reelection), as the statute of limitation for federal alien smuggling crimes is at least five years.
To the interested observer, the Department of Homeland Security sometimes seems (especially during the Obama and Biden administrations) to not only turn a blind eye to alien smuggling and illegal border crossings, but to actually lend encouragement or even actual assistance. Most infamously, in December 2013, Texas Federal District Court Judge Andrew Hanen issued a scathing order complaining that:
This is the fourth case with the same factual situation this Court has had in as many weeks. In all of the cases, human traffickers who smuggled minor children were apprehended short of delivering the children to their ultimate destination. In all cases, a parent ... of the children was in this country illegally. That parent initiated the conspiracy to smuggle the minors into the country illegally. He or she also funded the conspiracy. In each case, the DHS completed the criminal conspiracy, instead of enforcing the laws of the United States, by delivering the minors to the custody of the parent illegally living in the United States.
DHS ... did not arrest [the parent]. It did not prosecute her. It did not even initiate deportation proceedings for her.
Putting aside Judge Hanen’s quite legitimate frustration about DHS’s enforcement “priorities”, there are disturbing indications that officials within the Biden administration have become active and willing participants in alien smuggling. They appear to be actually directing the Border Patrol to facilitate, aid and abet, and, yes, even participate in, smuggling through illicit crossings of the Rio Grande. I do not deploy these terms merely as hyperbole, but in the sense that Biden administration officials may very well be committing criminal offenses under the anti-alien-smuggling provision of the Immigration and Nationality Act (INA), criminal offenses with penalties that potentially include life imprisonment or even the death penalty.
I was prepared for just about anything from the Biden administration. But even I was taken aback when reading my colleague Todd Bensman’s reporting in May that:
Over the course of several recent days in [Matamoros, Mexico] when perhaps 3,000 immigrants a day swam over to Brownsville with no opposition on either side, a curious pattern became evident. At some sort of signal from the Mexican immigration officers, a group of about 100-150 from the crowd would suddenly stand in unison and rush down the riverbank, past the immigration officers, and swim over to America.
It turns out that this pattern was far from happenstance. The Center for Immigration Studies asked several of the Mexican immigration officers what was going on and learned that [DHS] has been coordinating these mass swims with Mexico’s immigration service, INM, at high levels on an encrypted Whatsapp channel.
The officers explained that their senior officers were in touch with Customs and Border Protection [CBP] officials about how many immigrants were gathered and were prepared to cross the river at any given time.
“We’re letting them know that there’s a group of people ready to cross,” one officer explained.
The Americans on the other side would ask the Mexicans to hold back the migrants — not because such crossings are illegal and should be blocked and obstructed, but only until the Americans had finished processing the last batch into the country through Brownsville. Once the Americans felt they could take in more, they message the Mexicans that “they are ready to receive them.” Then, senior officials would radio the on-ground immigration officers, all of whom are equipped with radios.
Next, the officers signal to the waiting crowd to go forward and, once they figure enough are in the water, they cut off the rest and push and cajole them back into line until the Americans signal they’re ready again.
The Mexican officers said the Americans initiated this system in late April.
I will explain in unfortunate but necessary legalese why the senior CBP officers engaged in such activities (if indeed the Mexican immigration officers are accurately describing events) are seemingly committing federal criminal offenses. And, of course, culpability — both moral and criminal — would lie primarily with whomever in the Biden administration has ordered the Border Patrol to act in such fashion.
But first, I want to reflect on the Reagan administration’s “Iran/Contra Affair” and the lessons that congressional Democrats lectured the country that we should learn from it.
The Lessons of Iran/Contra
Iran/Contra, for those who weren’t around at the time, can be summed up, in the Washington Post’s words, as follows:
[T]he Iran-contra affair dominated the news for many months. It consisted of three interconnected parts: The Reagan administration sold arms to Iran, a country desperate for materiel during its lengthy war with Iraq; in exchange for the arms, Iran was to use its influence to help gain the release of Americans held hostage in Lebanon; and the arms were purchased at high prices, with the excess profits diverted to fund the Reagan-favored [anti-Communist] “contras” fighting the Sandinista government in Nicaragua.
It was a grand scheme that violated American law and policy all around: Arms sales to Iran were prohibited; the U.S. government had long forbidden ransom of any sort for hostages; and it was illegal to fund the contras above the limits set by Congress [in the “Boland” appropriations rider].
The first press revelations occurred in November 1986, and were followed by three investigations, conducted by a presidentially appointed commission headed by former Texas U.S. senator John Tower, by Congress (in televised hearings in mid-1987) and finally by a special federal prosecutor [Independent Counsel Lawrence Walsh].
My point here is not to relitigate Iran/Contra, but to examine the lessons that congressional Democrats implored the nation to draw from it. I do so because the lessons are certainly applicable to the appalling-if-true allegations that the Biden administration has been dabbling in alien smuggling to help achieve its immigration policy agenda. I would hope that (again, if the statements of the Mexican immigration officers are true), that Senate Democrats would see them as troubling as they believed Iran/Contra to be and initiate an investigation as vigorous as was their investigation of Iran/Contra. And I would hope that congressional Democrats would pressure Attorney General Merrick Garland to appoint a special prosecutor to investigate and, as appropriate, pursue criminal charges against those responsible.
Lesson No. 1: Belief in a “Rightful Cause” Does Not Justify Violation of Federal Law
Two congressional committees led the investigation of Iran/Contra. Sen. Daniel Inouye chaired the Senate’s Select Committee on Secret Military Assistance to Iran and the Nicaraguan Opposition, while U.S. Rep. Lee Hamilton chaired the House’s Select Committee to Investigate Covert Arms Transactions with Iran. The committees issued a joint “Report of the Congressional Committees Investigating the Iran-Contra Affair”, which concluded that:
The common ingredients of the Iran and Contra policies were secrecy, deception, and disdain for the law. A small group of senior officials believed that they alone knew what was right.
[F]ormer officials of the NSC staff ... lecture[d] the Committees that a “rightful cause” justifies any means, that lying to Congress and other officials in the executive branch itself is acceptable when the ends are just, and that Congress is to blame for passing laws that run counter to Administration policy. What may aptly be called the “cabal of the zealots” was in charge.
In the Iran-Contra Affair, officials viewed the law not as setting boundaries for their actions, but raising impediments to their goals. When the goals and the law collided, the law gave way.
Article II, Section 3 of the Constitution directs that the President “shall take care that the laws be faithfully executed.” The “take care” clause was derived from the English Bill of Rights, which forbade the King from suspending laws that he did not like. As Justice Jackson stated [in Youngstown Sheet & Tube Co. v. Sawyer in 1952], the “take care” clause signifies “that ours is a government of laws, not of men.”
The President must “take care” that the laws be faithfully executed. This is both a moral and legal responsibility.
Independent Counsel Walsh concluded that “the crimes committed in Iran/contra were motivated by the desire of persons in high office to pursue controversial policies and goals even when the pursuit of those policies and goals was inhibited or restricted by executive orders, statutes or the constitutional system of checks and balances.”
And Sen. Inouye reflected that Iran/Contra was “a vision of a government operated by persons convinced they have a monopoly on truth” and that the “hearings will be remembered longest ... for the extraordinary and extraordinarily frightening views of government they exposed.”
Lesson No. 2: Lawbreaking by Executive Branch Officials Is Corrosive to Our Democracy
The Report of the Congressional Committees concluded that:
Administration officials have, if anything, an even greater responsibility than private citizens to comply with the law. There is no place in Government for law breakers.
Government officials must observe the law, even when they disagree with it.
Fifty years ago Supreme Court Justice Louis Brandeis observed [in the case of Olmstead v. U.S.]: “Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes the law-breaker, it breeds contempt for law, it invites every man to became a law unto himself, it invites anarchy.”
The Iran-Contra Affair resulted from a failure to heed this message.
And Independent Counsel Walsh warned that “the failure to punish governmental lawbreakers feeds the perception that public officials are not wholly accountable for their actions.”
I hope that congressional Democrats and Republicans will both desire, should the statements of the Mexican immigration officers turn out to be true, to punish the lawbreakers in the Biden administration who have endeavored to force the Border Patrol to collaborate with Mexican authorities and directly benefit the Mexican cartels. Such lawbreakers truly have no place in the federal government (except, potentially, in a federal penitentiary).
Lesson No. 3: Federal Employees Witnessing Law Breaking Should Join the “Resistance”
Independent Counsel Walsh admonished that:
When a President, even with good motive and intent, chooses to skirt the laws or to circumvent them, it is incumbent upon his subordinates to resist, not join in. Their oath and fealty are to the Constitution and the rule of law, not to the man temporarily occupying the Oval Office.
I would hope that career officials and political appointees alike in the executive branch, Democrats and Republicans alike, will take heed of Independent Counsel Walsh’s plea and choose to “resist” rather than “join in” lawbreaking (again, should the allegations turn out to be true). As Independent Counsel Walsh so eloquently put it, your “oath and fealty are to the Constitution and the rule of law, not to the man temporarily occupying the Oval Office”.
Federal Prohibitions Against Alien-Smuggling
I should first clarify that the allegations of the Mexican immigration officers have nothing to do with the Biden administration’s so-called “lawful pathways” — legally dubious methods the administration uses to launder the immigration status of putative illegal aliens. As I have said, the “lawful pathways” bandied about by the administration generally boil down to its unlawful appropriation of the parole power to achieve goals it could never get the American people or Congress to agree to. True, the executive branch has abused the parole power almost since Congress first bestowed it in 1952, but the abuse has only gotten worse during the Biden years, with the administration notoriously using it to release into American communities hundreds of thousands of illegal aliens apprehended at the border. As to turning parole into a “lawful pathway”, the Biden administration operated under a veil of relative secrecy for Mexican and Central American beneficiaries before the 2022 election. Post-election, DHS publicly announced “additional safe and orderly processes” to “provide a lawful and streamlined way for qualifying nationals of Cuba, Haiti, Nicaragua, and Venezuela ... to seek advance authorization to travel to the United States and be considered, on a case-by-case basis, for a temporary grant of parole”. And on and on it goes.
But, in any event, “Rio Grande-Gate” has nothing to do with the aliens who are beneficiaries of such “lawful pathways”, but rather with aliens allegedly being waved over to the U.S. side of the Rio Grande by DHS despite their having no “prior official authorization” to come to or enter or reside in the U.S., not even a legally dubious one.
What does federal law provide? Section 274(a)(1)(A) of the INA provides in part that any person who:
(i) knowing that a person is an alien, brings to or attempts to bring to the United States in any manner whatsoever such person at a place other than a designated port of entry or place other than as designated by the Commissioner [of the former Immigration and Naturalization Service, now presumably the CBP Commission1], regardless of whether such alien has received prior official authorization to come to, enter, or reside in the United States and regardless of any future official action which may be taken with respect to such alien. [Emphasis added.]
(iv) encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law. [Emphasis added.]
(v)(I) engages in any conspiracy to commit any of the preceding acts, or (II) aids or abets the commission of any of the preceding acts.
shall be punished. Section 274(a)(1)(B) sets forth the penalties that a violator can accrue “for each alien in respect to whom such a violation occurs”. It provides (as relevant for our purposes):
in the case of a violation of subparagraph (A)(i) [smuggling] or (v)(I) [conspiracy] ... be fined ... imprisoned not more than 10 years, or both.
in the case of a violation of ... (v)(II) [aiding or abetting], be fined ... imprisoned not more than 5 years, or both.
in the case of a violation ... during and in relation to which the person causes serious bodily injury ... to, or places in jeopardy the life of, any person, be fined ... imprisoned not more than 20 years, or both.
in the case of a violation ... resulting in the death of any person, be punished by death or imprisoned for any term of years or for life, fined ... or both.
Further, § 274(a)(2) separately provides that:
Any person who, knowing or in reckless disregard of the fact that an alien has not received prior official authorization to come to, enter, or reside in the United States, brings to or attempts to bring to the United States in any manner whatsoever, such alien, regardless of any official action which may later be taken with respect to such alien shall, for each alien in respect to whom a violation of this paragraph occurs ... be fined ... or imprisoned not more than one year, or both [or] in the case of ... an offense in which the alien is not upon arrival immediately brought and presented to an appropriate immigration officer at a designated port of entry, be fined ... and shall be imprisoned, in the case of a first or second violation of [the requirement to immediately bring and present the alien to an immigration officer at a port of entry], not more than 10 years ... and for any other violation [of such requirement], not less than 5 nor more than 15 years. [Emphasis added.]
I should explain, or, rather, let the 2nd Circuit Court of Appeals explain, how this second alien- smuggling provision — § 274(a)(2) — came to be. In United States v. Aslam, the court explained in 1991 that:
Prior to 1986, section  punished as a felony various offenses concerning illegal aliens, including “bring[ing] into ... the United States” an illegal alien ... . In 1986 Congress revised [it] to create both felony and misdemeanor offenses. ... The “bringing in” felony was refined to apply only to the act of bringing a person known to be an alien to the United States “at a place other than a designated port of entry or place other than as designated ... regardless of whether such alien has received prior official authorization to ... enter ... .”... In addition, the 1986 amendment created a “bringing in” misdemeanor applicable to the act of bringing an alien to the United States, regardless of location, “knowing or in reckless disregard of the fact” that the alien has entered the United States illegally ... . Both the felony and misdemeanor “bringing in” offenses ... include the broadening phrase "in any manner whatsoever.”
Further, the Senate Judiciary Committee explained that:
[T]he offense of subparagraph (A) of paragraph (a)(1) ... does not require that the alien not have received prior official authorization to come to, enter, or reside in the United States, merely that the person brings to or attempts to bring to the United States the alien “at a place other than a designated port of entry or place other than as designated by the Commissioner.”
This is in contrast to the offense of paragraph (a)(2) ... which requires for a violation that a person act “knowingly or in reckless disregard of the fact that an alien has not received prior official authorization to come to, enter, or reside in the United States” ... and does not require that the bringing to the United States be at a place other than a designated port of entry or place other than as designated by the Commissioner ... . No intent to smuggle is required. [Emphasis added by Committee Report.]
If the allegations of the Mexican immigration officers are true, could Biden administration officials be considered to be “bring[ing]” aliens “to” the United States “at a place other than a designated port of entry or place other than as designated by the Commissioner”? Could they be considered as “encourage[ing] or induc[ing]” aliens “to come to” the U.S “knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law”? Could they be considered to be engaged in a conspiracy to carry out such acts or be considered to be aiding or abetting such acts? Finally, could they be considered to be “bring[ing]” aliens “to” the U.S. “in any manner whatsoever”, “knowing or in reckless disregard of the fact” that the aliens have “not received prior official authorization to come to” the U.S.?
And if they could be so considered, are there actual scenarios where the most serious penalties contained in § 274 — potential life imprisonment when placing a person’s life in jeopardy, or potential life imprisonment or even the death penalty when the violation results in the death of any person — could come into play?
As to the last question, it seems that the harshest penalties could indeed come into play. What if when a group of 100-150 aliens suddenly stand in unison and rush down the riverbank and swim over to the U.S. at the behest of DHS, one or more of the aliens drowns? Would not such deaths be the result of the alien smuggling offense, as they would not have occurred “but for” DHS’s actions? As Judge Hanen said in his order, such actions are “both dangerous and unconscionable”.
Of course, migrant deaths in the treacherous Rio Grande are not uncommon. Judge Hanen stated in his order that “DHS is encouraging parents to seriously jeopardize the safety of their children ... . As this Court waited for the judgment to be prepared before it released this opinion, two illegal aliens drowned ... .” The Texas Department of Public Safety recently reported that in a 48 hour period earlier this month, its Tactical Marine Unit “recovered 4 deceased bodies including an infant from the Rio Grande River” in Eagle Pass. And, as CNN reported, migrant deaths along the border have risen dramatically since the onset of the Biden administration, rising from 300 in fiscal year 2019 and 247 in 2020 to 557 in 2021 and 748 in 2022 (with one month to go in the fiscal year).
As to the initial questions of whether Biden administration officials may be committing actual violations of § 274 (again, should the allegations turn out to be true), we need to consider a number of legal questions.
Legal Question No. 1: Can A Person Smuggle an Alien into the U.S. Without the Alien’s “Entry” into the U.S.?
This is not a trick question and I am not making recourse to metaphysics. The contention would be that the aliens swimming across the Rio Grande at the behest of DHS were always in the presence of or being surveilled by Border Patrol officers. Thus, as a legal matter, DHS officials could not have brought them to or encouraged or induced them to come to the U.S. I am referring to a strange doctrine that has developed in certain U.S. Courts of Appeal involving the meaning of “entering” the U.S. Let’s have the 9th Circuit explain, from its 2002 decision in United States v. Gonzalez-Torres. But first, I need to note the current provision of the INA (§ 275) that sets forth criminal penalties for aliens who unlawfully enter the U.S.:
Any alien who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined ... or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined ... or imprisoned not more than 2 years, or both. [Emphasis added.]
Now, back to the 9th Circuit:
Since 1908, federal courts have recognized that “entering” the United States requires more than mere physical presence within the country ... . To “enter,” an alien must cross the United States border free from official restraint ... . An alien is under “official restraint” if, after crossing the border without authorization, he is “deprived of [his] liberty and prevented from going at large within the United States.” ... An alien does not have to be in the physical custody of the authorities to be officially restrained; rather, the concept of official restraint is interpreted broadly ... . “The restraint may take the form of surveillance, unbeknownst to the alien.” ... When under surveillance, the alien “has still not made an entry despite having crossed the border with the intention of evading inspection, because he lacks the freedom to go at large and mix with the population.”... On the other hand, if an alien is not discovered until some time after exercising his free will within the United States, he has entered free from official restraint. [Emphasis added.]
So, the argument would go, at least in those circuits that apply this doctrine,2 that no one at DHS could have engaged in “smuggling”, since the aliens never “entered” the U.S. in the first place. Not so fast. The 9th Circuit goes on to explain in Gonzalez-Torres that:
Although [the defendant-appellant] never entered the United States for purposes of the illegal entry statutes, he is still subject to criminal liability for smuggling aliens to this country. ... Smuggling aliens to the United States does not require entry. [Emphasis added.]
While [the 9th Circuit’s 1989 decision in U.S. v. Aguilar] does state that the “official restraint” doctrine applies to smuggling cases brought pursuant to [§ 274], neither party seemed to realize that Aguilar was not decided under the present version of [§ 274]. Aguilar was decided under a predecessor statute which read:
Any person, including the owner, operator, pilot, master, commanding officer, agent or consignee of any means of transportation who ... brings into or lands in the United States, by any means of transportation or otherwise, or attempts, by himself or through another, to bring into or land in the United States, by any means of transportation or otherwise. [Emphasis added.]
This section was substantially revised in 1986 ... . The legislative history [of the Immigration Reform and Control Act of 1986] indicates that ... Congress was concerned with smuggling cases that equated “bring into” with “entering.”... Deliberately overruling case law requiring entry to sustain a smuggling conviction, Congress replaced the words “brings into” with the words "brings to." ... Thus, we are not bound by our decision in Aguilar. [Emphasis added.]
The House Judiciary Committee Report, in fact, elaborated that:
Without the threat of criminal prosecution, there is no effective way to deter potential transporters from inundating U.S. ports of entry with undocumented aliens. As happened during the Mariel [boatlift], the United States would be forced to expend extraordinary amounts of money and human resources in processing, monitoring, caring for and giving hearings to exorbitant numbers of people. Accordingly, the bill clarifies that a person who knowingly transports an undocumented alien to any place in the United States will be subject to criminal prosecution if that person knew the alien was undocumented or acted with willful blindness concerning the alien’s immigration status.
Additionally, the bill increases the penalties for ... knowingly bringing aliens, whether documented or not and whether an entry occurs or not, to any place in the United States other than designated ports of entry.” [Emphasis added.]3
The 9th Circuit had also pointed out in its 2002 decision in U.S. v. Hernandez-Garcia that “Congress intended to separate the concept of bringing or coming to the United States from ‘entry’. For example, the House Report reflects disagreement with the judicial interpretation of the former version of § (a)(1) that had equated ‘bring into’ with entry.” (Emphasis in original.) The court concluded that:
[W]e believe that “come to” in [INA § 274](a)(1)(A)(ii) means just what it says, come to the United States, not come into or enter the United States. For this reason, it suffices for the government to show that the transporter drove an alien within this country who had come to the United States unlawfully. [Emphasis in original.]
For more on this theme, you can also look at the 10th Circuit’s 2012 decision in United States v. Franco-Lopez.
Thus, even if administration officials were to be tried in circuits that have equated “entry” with the lack of “official restraint”, this would not be a defense to charges of alien smuggling.
Legal Question No. 2: Are Biden Administration Officials “Bring[ing]” Aliens to the U.S. or Merely “Encourag[ing] or Induc[ing]” Them to Come?
This is a very interesting question, without a definitive answer. It is possible that administration officials could be successfully prosecuted for committing the “bring[ing] to” offense, or, alternately, the “encourage[ing] or induc[ing]” offense. The easier road for prosecutors would be the latter option.
Let’s turn to the case law. First, courts have defined “brings” very broadly in the smuggling context. In United States v. Yoshida, the 9th Circuit concluded in 2002 that:
[The defendant-appellant] argues that bringing requires more direct activity such as physical transportation or some type of control over the method of transportation, such as driving aliens across the United States border. We do not define “bringing” so narrowly.
The statute does not define “brings to.” Thus, “in the absence of such a definition, we construe a statutory term in accordance with its ordinary or natural meaning.”
This skirmish over the definition of the word “bring” recalls to our memory a recent dispute over the equally common word “carry.”... [W]e conclude that “bring” must be interpreted just as the Supreme Court interpreted “carry”: broadly, using its ordinary meaning.
“Bring” is defined as “to convey, lead, carry or cause to come along from one place to another, ... to escort, [or] accompany.” Webster's Third New International Dictionary ... . “Bringing” an alien to the United States would include “leading,” “escorting,” or “causing [the alien] to come along” to the United States. Although [the defendant-appellant] argues that “bring” requires some physical transport, the ordinary definition of “bring” is not so limited, and [she] offers no indication that Congress intended to limit “bring.” The statute itself conclusively indicates that Congress intended a broad definition of bring: “brings to or attempts to bring to the United States in any manner whatsoever.” [Emphasis added throughout.]
Here, [the defendant-appellant] guided [the smuggled aliens] to an aircraft heading to the United States. In United States v. Gonzalez-Torres, we held that an individual leading others and guiding them across the border using hand signals and gestures was guilty of bringing aliens to the United States in violation of [§ 274](a)(2). [The defendant-appellant in that case] did not physically transport his group of aliens, he merely brought them to the United States by guiding them along the correct route. Similarly, [the defendant-appellant in the present case] walked slowly until the aliens caught up to her in the airport and then quickly led them to the appropriate flight. She then accompanied them on the flight to the United States ... . [S]he had the two baggage claims under the aliens' aliases hidden in her underwear ... . [S]he brought them to the United States by leading them to the gate and assisting them in boarding the aircraft. The fact that [she] did not actually pilot the airplane to the United States is of little consequence.
But there are limits to the definition of “brings”. In United States v. Assadi, the District Court for the District of Columbia Circuit ruled in 2002 that:
[The defendant’s] acts ... certainly amounted to “encouraging” the aliens to enter the United States illegally. [He] did not, however, “bring” the aliens to the United States. [Emphasis added throughout.]
[T]he word “bring” must be given its ordinary meaning. “Bring” means “to convey, lead, carry or cause to come along from one place to another ... to escort, [or] accompany.” Webster’s Third International Dictionary. ... It does not mean “send” or “launch” (a term the government used during oral argument). The first definition listed in the Oxford English Dictionary is:
To cause to come along with oneself; to fetch. It includes “lead” or “conduct” ... as well as “carry”... ; it implies motion towards the place where the speaker or auditor is, or is supposed to be, being in a sense the causal of come; motion in the opposite direction is expressed by take ... by carrying or bearing in one's hand, etc.
Fowler[’s Modern English Usage] ... not[es] that “bring” is:
partially distinguished from take according to movement towards the speaker (bring), or away from or accompanying the speaker (take): take your raincoat with you and bring me a newspaper from the corner shop. There are many circumstances, however, in which this simple distinction does not apply: e.g. if we are going to the zoo shall we bring/take the camera.
Nothing in Fowler, however, or in Webster or the OED, or in correct common usage, supports the use of “bring” when there is neither movement towards the speaker nor accompaniment. Both Webster and the OED recognize “carry” as synonymous with “bring,” and “carry,” as defined by the Supreme Court, includes accompaniment.
The cases applying §  support the conclusion that “encouraging or inducing” is the correct charge to bring against those who help others travel to or enter the United States illegally, while “bringing to” correctly charges persons who not only help, but also accompany aliens, or lead them, or meet them at the border ... . All the ... decisions affirming convictions for “bringing to” involve defendants who came to the United States with the aliens. United States v. Aguilar ... (defendant gave false papers to alien, coached her to lie to immigration officials, and escorted her) ... United States v. Bunker ... (defendant drove aliens through immigration checkpoint and coached them); United States v. Washington4 (defendant purchased airline tickets for aliens, supplied fraudulent identification papers, and traveled with them by plane).
The act of accompanying an alien right up to but not across the American border may indeed be “bringing to” America, but an alien left at an airport lounge in Cali, Colombia, or Guayaquil, Equador, still has a long way to go.
Similarly, in United States v. Garcia-Paulin, the 5th Circuit concluded in 2010 that:
We have found no case where a defendant has been convicted under [§ 274(a)(1)(A)(i)] for “bringing” an alien into the United States except where the defendant accompanied or arranged to have the alien accompanied (as in a smuggling operation) across the border into the United States.
Supplying a fraudulent passport stamp and advising the alien that the stamp would only allow him to work in the United States after he surreptitiously entered the country does not establish that [the defendant-appellant] “brought” the alien to the United States ... under § (a)(1)(A)(i). [The defendant-appellant] had no active role in the alien's entry into the United States and the government included no facts in the factual basis reflecting that he accompanied the alien or directed anyone else to help the alien cross the border.
So, under the courts’ analysis in Assadi and Garcia-Paulin, Biden administration officials (again, should the allegations be true), should be charged with “encourage[ing] or induc[ing]” rather than “bring[ing] to”, as they did not bring the aliens to the border or accompany the aliens across the Rio Grande.
However, the Assadi rule does not apply across the country. For example, in United States v. Calhelha, the U.S. District Court for the District of Connecticut ruled in 2006 that:
[T]he facts alleged in the Indictment are sufficient to support a “bringing” offense under § (a)(2). Defendants contend that at most the allegations in the Indictment support an offense of encouraging aliens to enter the United States because ... [to constitute “bringing”] there must be some physical act by which the defendant transports the aliens, i.e. an ‘escorting or accompanying component.’ [citing Assadi].”
In Assadi, the defendant “created or procured falsified passports for the aliens, bought them airline tickets, ... procured boarding passes for them, and took them to the airport. He instructed them to destroy their travel documents once they were airborne, to ask for asylum when they deplaned in Miami, and to lie if asked who had arranged their passage.” ... However, “[the defendant in that case] did not accompany any of the aliens on their flights to Miami, nor did he meet them (or arrange to have them met) when they arrived. His involvement with the aliens ended as soon as he saw them to their flights.” ... The court ... held that while “‘bringing to’ does not require control of the means of transport,” it must involve an “escorting or accompanying component.”
This case, however, is distinguishable from Assadi: the Indictment alleges that, in addition to recruiting and meeting with the aliens and paying for their airline fare, [the defendant in the present case] also “[u]pon their arrival in the United States ... transported the aliens, or arranged for their transport, from Newark International Airport to his residence in Guilford, Connecticut where the aliens stayed for a period of time.”... Thus, [he], unlike [the defendant in Assadi], participated in “motion towards the place where [he] was, or [was] supposed to be,” ... and indeed accompanied them himself directly from the airport to the place where they would be staying, his home. The circumstances of this case are thus more analogous to those in United States v. Aslam, in which the Second Circuit [in 1991] ... [held] that § (a)(2) applied to ... conduct in meeting two aliens in the United States within a few yards of the border shortly after they had walked across it ... observ[ing] that “section (a)(2) punishes those who participate in the process of bringing illegal aliens into the United States [Emphasis added by Calhelha], and that ... offense does not end at the instant the alien sets foot across the border. The illegal importation of aliens ... continues at least until the alien reaches his immediate destination in this country.” ... [The defendant] not only participated in the process of bringing illegal aliens into the United States, but also devised and instigated the process, and saw it to conclusion.
In the 9th Circuit, the test is slightly different. As the court ruled in United States v. Lopez in 2007:
[W]e hold that a “brings to” offense under § (a)(2) terminates when the initial transporter drops the aliens off at a location in the United States: that may occur in the first district the transporter enters or it may not occur until after the transporter has driven through several districts.
Under the court’s analysis in Calhelha, could administration officials potentially be prosecuted for “bring[ing]” smuggled aliens “to” the United States? On the one hand, DHS officials do “meet” the smuggled aliens before they reach their “immediate destination” in the U.S. And (if the allegations of the Mexican immigration officers are true), Biden administration officials certainly “participated in the process of bringing illegal aliens into the United States”, and they also “devised and instigated the process”. But, on the other hand, DHS officials will most often meet the aliens for the purpose of processing them and then releasing them on parole or after issuing them notices to appear in immigration court. Such processing and release would not be considered part of the smuggling operation. Or would it? What would Judge Hanen think?
An additional option would be prosecution for aiding and abetting. In Lopez, the 9th Circuit concluded that:
It is clear that under certain circumstances a defendant who does not physically transport aliens across the border may be held criminally liable for aiding and abetting a “brings to” offense. A financier who organizes and funds a smuggling operation, for example, whether located in or outside of the United States, may be said to have “associate[d] himself with the venture, ... participate[d] in it as in something he wishe[d] to bring about, [and sought] by his action to make it succeed.”
And in United States v. Estrada, the 11th Circuit Court of Appeals ruled in 2020 that:
Evidence of physical accompaniment across the border was not necessary to sustain the defendants' aiding-and-abetting convictions. [Citing Lopez]. Rather, it was enough that the defendants and other members of the smuggling operation made all the arrangements for the ... border crossings: either [the defendant-appellant] or another co-conspirator physically accompanied the [smuggled aliens] “to” the border, and shortly after the[y] crossed into the United States, someone involved in the smuggling operation met and directed them how to proceed.
[T]he evidence showed that [the defendants-appellants] played an active role in the smuggling operation by involving themselves in nearly every aspect of the scheme — from the initial meetings, to finances, to logistics ... . We therefore conclude that the evidence was sufficient to prove the defendants' substantive smuggling convictions.
Legal Question No. 3: Is the Offense of “Encourag[ing] or Induc[ing] an Alien to Come to, Enter, Or Reside in the United States” Constitutional?
Just weeks ago, the Supreme Court in United States v. Hansen ruled that the encourages/induces offense is indeed constitutional since “[p]roperly interpreted”:
This provision forbids only the intentional solicitation or facilitation of certain unlawful acts. It does not “prohibi[t] a substantial amount of protected speech” — let alone enough to justify throwing out the law’s “plainly legitimate sweep.”
[T]he provision has a wide legitimate reach insofar as it applies to nonexpressive conduct and speech soliciting or facilitating criminal violations of immigration law. Even assuming that [it] reaches some protected speech, and even assuming that its application to all of that speech is unconstitutional, the ratio of unlawful-to-lawful applications is not lopsided enough to justify the “strong medicine” of facial invalidation for overbreadth.
But the court did note that “as-applied challenges can take it from here”, indicating that the provision could still be found to be unconstitutional depending on how it is applied to particular defendants and the words or conduct alleged to constitute encouragement or inducement.
As to solicitation and facilitation, the Court explained that:
Criminal solicitation is the intentional encouragement of an unlawful act. ... Facilitation — also called aiding and abetting — is the provision of assistance to a wrongdoer with the intent to further an offense’s commission ... . While the crime of solicitation is complete as soon as the encouragement occurs ... liability for aiding and abetting requires that a wrongful act be carried out ... . Neither solicitation nor facilitation requires lending physical aid; for both, words may be enough ... . Both require an intent to bring about a particular unlawful act ... . And both are longstanding criminal theories targeting those who support the crimes of a principal wrongdoer.
The terms “encourage” and “induce” are among the “most common” verbs used to denote solicitation and facilitation ... . In fact, their criminal-law usage dates back hundreds of years ... . A prominent early American legal dictionary, for instance, defines “abet” as “[t]o encourage or set another on to commit a crime.” [Emphasis added throughout by Hansen.]
This pattern is on display in the federal criminal code, which, for over a century, has punished one who “induces” a crime as a principal ... . The Government offers other examples as well: The ban on soliciting a crime of violence penalizes those who “solici[t], comman[d], induc[e], or otherwise endeavo[r] to persuade” another person “to engage in [the unlawful] conduct.”... Federal law also criminalizes “persuad[ing], induc[ing], entic[ing], or coerc[ing]” one “to engage in prostitution” or other unlawful sexual activity involving interstate commerce ... . The Model Penal Code echoes these formulations, defining solicitation as, in relevant part, “command[ing], encourag[ing] or request[ing] another person to engage in specific [unlawful] conduct.”
Thus, it would seem that prosecutors could easily meet their burden in establishing encouragement or inducement on the part of Biden administration officials in the sense of solicitation or facilitation.
Legal Question No. 4: What Is the Meaning of “Prior Official Authorization to Come to, Enter, or Reside in the U.S.”?
Could the Biden administration possibly argue that DHS’s “waving over” of aliens along the Rio Grande provides them with “prior official authorization” to come to the U.S., and thus that DHS’s facilitation could not be in violation of § 274(a)(2)? I wouldn’t think that even this administration would be so brazen. But even if it tried, such a contention would likely be laughed out of court.
The term “prior official authorization” is not used anywhere in the INA or elsewhere in Title 8 other than in § 274 (as amended by IRCA). What does it mean? Section 274 itself provides some insight:
In determining whether a violation of subsection (a) has occurred, any of the following shall be prima facie evidence that an alien involved in the alleged violation had not received prior official authorization to come to, enter, or reside in the United States or that such alien had come to, entered, or remained in the United States in violation of law: [Emphasis added throughout.]
(A) Records of any judicial or administrative proceeding in which that alien’s status was an issue and in which it was determined that the alien had not received prior official authorization to come to, enter, or reside in the United States or that such alien had come to, entered, or remained in the United States in violation of law.
(B) Official records of [DHS] or of the Department of State showing that the alien had not received prior official authorization to come to, enter, or reside in the United States or that such alien had come to, entered, or remained in the United States in violation of law.
(C) Testimony, by an immigration officer having personal knowledge of the facts concerning that alien’s status, that the alien had not received prior official authorization to come to, enter, or reside in the United States or that such alien had come to, entered, or remained in the United States in violation of law.
The one type of prima facie evidence listed that could be created instantaneously (and does not refer to the sort of records that could not be generated by a hand wave) refer to an alien’s “status”, which presumably refers to “lawful status” or “unlawful immigration status” as used in the INA. For instance:
- INA § 244 provides that aliens who have received temporary protected status “shall be considered as being in, and maintaining, lawful status as a nonimmigrant” (emphasis added) for purposes of being able to adjust status (to that of an alien lawfully admitted for permanent residence).
- INA § 245 refers to the inability of certain aliens to apply for adjustment of status “who ha[ve] failed ... to maintain continuously a lawful status since entry into the United States”. (Emphasis added.)
- INA § 245A provides that certain illegal aliens can receive temporary lawful status if they “establish that [they] entered the United States before January 1, 1982, and that [they] ha[ve] resided continuously in the United States in an unlawful status since such date and through the date the application is filed.” (Emphasis added).
Thus, it seems evident that “prior official authorization” refers to authorization that would confer lawful status on an alien — such as the issuance of a nonimmigrant visa. Even when DHS grants an alien deferred action, the most that this confers is “legal presence”, if even that, as opposed to “lawful status”. As even the Biden administration’s DHS states, “Deferred action does not provide lawful status.”
In addition, in the course of ruling that the term “prior official authorization” is not unconstitutionally vague, the 11th Circuit in essence provided a definition of the term. In Estrada, it ruled that:
[Defendants-appellants] contend that § (a)(2) is unconstitutionally vague because it does not define “prior official authorization.” They further argue that, even if the term ... is “well understood,” the “standards for determining the existence of this authorization” are unclear ... . Because the statute is vague, they argue, we should reverse their convictions.
“A criminal statute is unconstitutionally vague if it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden.”... A statute must “define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.”... Although the void-for-vagueness doctrine “focuses both on actual notice to citizens and arbitrary enforcement,” the Supreme Court has explained that “the more important aspect of vagueness doctrine is not actual notice, but ... the requirement that a legislature establish minimal guidelines to govern law enforcement.”... Where Congress fails to provide “minimal guidelines, a criminal statute may permit a standardless sweep that allows policemen, prosecutors, and juries to pursue their personal predilections.”... If there is an interpretation of the statute that makes the statute constitutional, we accept that interpretation.
We conclude that § (a)(2) is not unconstitutionally vague.
The court then gave a definition of sorts to bolster its ruling on vagueness:
“Prior official authorization” means permission to come to, enter, or reside in the United States that an immigrant acquired before actually coming to, entering, or residing in the United States ... . An ordinary person would understand that “authorization” refers to an official action taken by the United States government pursuant to federal immigration law and policy that gives an immigrant permission to be present in the United States ... . For instance, a lawfully-acquired immigrant visa would provide authorization, for the purposes of § (a)(2) ... if the visa was acquired before the immigrant came to, entered, or resided in the United States. But even if we could imagine scenarios where it would be difficult to determine whether a noncitizen has “prior official authorization,” that alone would not render the statute impermissibly vague ... . In short, we find § (a)(2) to be sufficiently clear to provide notice to ordinary persons about the conduct that is prohibited and to guide law enforcement.
The court in Estrada would hardly consider a hand wave to be “an official action taken by the United States government pursuant to federal immigration law and policy”. As I mentioned, that would require something along the lines of a “lawfully-acquired immigrant visa”.
Legal Question No. 5: What Is the Meaning of “Place Other Than as Designated by the Commissioner”?
In the same spirit as the last question, could the Biden administration possibly argue that DHS’s “waving over” of aliens along the Rio Grande instantly gives them a place “designated by the Commissioner” to arrive in the U.S., and thus that DHS’s facilitation could not be in violation of § 274(a)(1)(A)(i)? I wouldn’t think that even this administration would be so brazen. But even if it tried, such a contention would also likely be laughed out of court.
The term “place other than as designated by the Commissioner” is only used once in the entirety of the INA and Title 8 — in § 274(a)(1)(A)(i) (as amended by IRCA). The predecessor term, “at any time or place other than as designated by the Attorney General”, was created by the Immigration and Nationality Act of 1952. Did Congress come up with this concept out of thin air? Hardly. Federal immigration law pre-IRCA utilized, and continues to utilize, a similar term — “time or place other than as designated by immigration officers”. This term is currently used in three places in the INA, one of which being in INA § 275, making unlawful entry a criminal offense. Its earliest appearance in the U.S. Code seems to be by way of the Immigration Act of March 3, 1903, which provided that:
[I]t shall be the duty of the owners, officers and agents of any vessel bringing an alien to the United States to adopt due precautions to prevent the landing of any such alien from such vessel at any time or place other than that designated by the immigration officers. [Emphasis added.]
Next, it was used by the Immigration Act of 1917, with “officials” replacing “officers”:
[A]t any time within three years after entry, any alien who shall have entered the United States by water at any time or place other than as designated by immigration officials, or by land at any place other than one designated as a port of entry for aliens by the Commissioner General of Immigration, or at any time not designated by immigration officials, or who enters without inspection, shall, upon the warrant of the Secretary of Labor, be taken into custody and deported. [Emphasis added.]
Next, the Immigration Act of March 4, 1929, criminalized unlawful entry:
Any alien who hereafter enters the United States at any time or place other than as designated by immigration officials or eludes examination or inspection by immigration officials, or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall be guilty of a misdemeanor, and, upon conviction, shall be punished by imprisonment for not more than one year or by a fine of not more than $1,000, or by both such fine and imprisonment. [Emphasis added.]
Could Congress have really intended in 1903 or in 1917 or in 1929 or in 1952 or in 1986 that it was granting the executive branch license to defeat the criminalization of unlawful entry and defeat the criminalization of alien smuggling simply through the ruse of “designating” any old place along the border as a proper portal for aliens to pour through? I would tend to doubt it. As the Supreme Court famously said in Whitman v. American Trucking Association, “Congress ... does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions — it does not, one might say, hide elephants in mouseholes.”
The Path Forward
Independent Counsel Lawrence Walsh explained the need for an investigation of Iran/Contra outside of the control of the Justice Department:
As Watergate demonstrated, the [Constitution’s] checks and balances reach their limits in the case of criminal wrongdoing by Executive branch officials ... . [T]he competing roles of the attorney general, as a member of the Cabinet and presidential adviser on the one hand and chief law enforcement officer on the other, create an irreconcilable conflict of interest.
[C]ongressional oversight alone cannot make up for deficiencies that result when an attorney general abandons that law-enforcement role in cases of Executive branch wrongdoing.
[T]he attorney general represents the people of the United States — not the President, the Cabinet or any political party. When the attorney general cannot so represent the people, the rule of law requires that another, independent institution assume that responsibility.
It certainly seems apparent that the Justice Department under Attorney General Merrick Garland cannot be entrusted with the task of conducting a fair and objective investigation of Biden administration officials alleged to be participating in alien smuggling to meet administration policy goals. While the authorization for independent counsels ceased to exist in 1999, Attorney General Garland is free to appoint a special counsel to investigate Rio Grande-Gate. In fact, he has already done so regarding other matters. As DOJ announced last November:
Attorney General Merrick B. Garland announced today the appointment of former career Justice Department prosecutor and former chief prosecutor for the special court in The Hague, Jack Smith, to serve as Special Counsel to oversee two ongoing criminal investigations. The first is the investigation ... into whether any person or entity unlawfully interfered with the transfer of power following the 2020 presidential election or the certification of the Electoral College vote ... . The second is the ongoing investigation involving classified documents and other presidential records, as well as the possible obstruction of that investigation.
[Attorney General Garland stated that] “Based on recent developments, including the former President’s announcement that he is a candidate for President in the next election, and the sitting President’s stated intention to be a candidate as well, I have concluded that it is in the public interest to appoint a special counsel[.] Such an appointment underscores the Department’s commitment to both independence and accountability in particularly sensitive matters. It also allows prosecutors ... to make decisions indisputably guided only by the facts and the law.” [Emphasis added.]
[Attorney General Garland also stated that] “I ... believe that appointing a Special Counsel at this time is the right thing to do. The extraordinary circumstances presented here demand it. Mr. Smith is the right choice to complete these matters in an even-handed and urgent manner.” [Emphasis added.]
The appointment of a special counsel in this case would certainly be in the public interest and underscore DOJ’s commitment to both independence and accountability in particularly sensitive matters and allow prosecutors to make decisions indisputably guided only by the facts and the law.
As to any investigation by a special counsel, the Report of the Congressional Committees stated that:
The judgments of these Committees are not the same as those required of the Independent Counsel. He must decide whether there was criminal intent behind any violation, whether there are any extenuating circumstances, and whether prosecution is in the public interest. The Committees express no opinions on these subjects and our comments in this section are purposefully general so as not to prejudice any individual's rights.
I would hope that congressional Democrats and Republicans alike would decide to allow a truly independent investigation to proceed without interference, just as the Iran/Contra committees professed to do.
If Attorney General Garland fails to appoint a special counsel, or does appoint a special counsel whose work appears tainted, the next administration must investigate and bring prosecutions as appropriate. The statute of limitation for federal alien smuggling crimes will not present an impediment, as it is generally five years: “no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed, and “[a]n indictment for any offense punishable by death may be found at any time without limitation.”
What was the result of the Iran-Contra prosecutions? Independent Counsel Walsh reported that:
Independent Counsel was able to bring criminal charges against nine government officers and five private citizens involved in illegal activities growing out of the Iran/contra affair.
Of the 14 persons charged criminally during the investigation, four were convicted of felony charges after trial by jury, seven pleaded guilty either to felonies or misdemeanors, and one had his case dismissed because the Administration refused to declassify information deemed necessary to the defendant by the trial judge. Two cases that were awaiting trial were aborted by pardons granted by President Bush.
The current situation, Rio Grande-Gate, is just as serious (again, if the allegations are true) and could result in the application of justice on the same scale, if not a larger scale.
As to President Reagan, the Report of the Congressional Committees concluded that:
[T]he question whether [he] knew ... is not conclusive on the issue of his responsibility. The President created or at least tolerated an environment where those who did know ... believed with certainty that they were carrying out the President’s policies.
The Constitution requires the President to “take care that the laws be faithfully executed.” This charge encompasses a responsibility to leave the members of his Administration in no doubt that the rule of law governs.
Even if the criminal conspiracy here (again, if the allegations are true) does not reach President Biden himself, has he created or does he tolerate an environment where those responsible believed that they were carrying out his policies? Does he leave the members of his administration in any doubt that the rule of law governs? That is a question that only a thorough and fair investigation can answer.
I should note that Seymour Hersh reported during Iran-Contra that:
The Senate committee ... was especially sensitive on the issue of Presidential responsibility. At an early caucus ... according to one participant, the Senators reached one easy consensus. “We don't want to go after the President,” the participant said. “He was too old,” with too little time left in office. The Senators “honestly thought that the country didn't need another Watergate. They were urgently hoping to avoid a crisis.” There was yet another consensus, the witness added: the President did not have the mental ability to fully understand what had happened.
Regardless of the accuracy of Hersh’s reporting, I leave it to the reader to decide whether such factors might be present in the case of President Biden.
1 The Homeland Security Act of 2002 transferred the functions of the INS Commissioner to the Under Secretary for Border and Transportation Security at DHS. The department later “abolish[ed] the Office of the Under Secretary for Border and Transportation Security [and merged its] functions ... into other offices and component agencies throughout the Department.”
2 For example, the 10th Circuit “has never required freedom from official restraint for an ‘entry’ under § [275(a)].”
3 H. Rep. No. 99-682, part 1, at 66 (1986).
4 471 F.2d 402, 405 (5th Cir. 1973).