Cite as "AILA InfoNet Doc. No. 04092860 (posted Sep. 28, 2004)"
September 27, 2004
As Congress considers legislation to implement the recommendations of the National Commission on Terrorist Attacks Upon the United States (the 9/11 Commission), the American Immigration Lawyers Association (AILA) urges the Senate to carefully debate the important issues included in this measure. Of special concern are the immigration-related provisions included in the legislation and amendments that might be proposed during debate on the legislation. If done incorrectly, a bill enacted into law could have the unintended consequence of hurting our security and making our immigration processes even more dysfunctional than they are today. Congress needs to keep in mind the Commission's admonition that the "border and immigration system of the United States must remain a visible manifestation of our belief in freedom, democracy, global economic growth, and the rule of law, yet serve equally well as a vital element of counterterrorism." AILA strongly concurs with the Commission's admonition and urges your support for provisions that address the following concerns:
1. From a security and immigration perspective it is important to have a system that can deliver on its "basic commitments." The Commission notes that "an immigration system not able to deliver on it basic commitments" was one of the "two systematic weaknesses" that "came together in our border system's inability to contribute to an effective defense against the 9/11 attacks." As Congress looks to implement the Commission's recommendations, it must include provisions that will enable the federal agencies in charge of immigration to deliver on basic commitments such as: sufficient funding for adjudications and border security initiatives, adequate training of all officials charged with carrying out U.S. immigration law, sufficient staffing to carry out initiatives, sufficient funding for needed technologies, and rigorous civil liberties, due process, and privacy protections.
2. To most effectively enhance security, the U.S. must strengthen its intelligence capacity and create a multi-layered border with several tiers of protection. The Commission report repeatedly underscores that enhancing our intelligence capacity is essential if we are to make this nation safer, as is the development of layers of protection that keep targeted people from entering the U.S. Such measures are more effective and easier to implement than are measures that focus on persons after they enter the U.S. To implement such a layered border, Congress and the Administration must, among other actions, direct more money to our consulates, ensure the accuracy of watchlists and create a process that allows the deletion of names that do not belong on such lists, mandate adequate and consistent training for all involved in the implementation of immigration law, and ensure that ports-of-entry receive sufficient funding and are adequately staffed with well-trained officers with access to accurate, functioning, and interoperable databases.
Another critical component of well functioning borders and ports-of-entry is access to counsel. Such access will not only facilitate the flow of people, but also further important goals the Commission articulates while ensuring that the government's broad powers to admit or bar noncitizens from entry are not used improperly or arbitrarily.
3. Our nation needs an immigration system that shrinks the haystack by facilitating the entry of "trusted travelers" so we can better focus our resources on those who mean to do us harm. The 9/11 Commission recognizes the importance of facilitating travel so that resources can be focused on those who mean to do us harm. The Commission urges that the "programs to speed known travelers" be made a "higher priority, permitting inspectors to focus on greater risks." In addition, because the U.S. cannot shrink the haystack, enhance our security, and secure our borders without reforming our immigration laws, Congress and the Administration also must support reforms that would legalize the status of those currently living and working in the U.S., address the long backlogs in family-based immigration, and create worker programs that allow people to enter and leave the U.S. lawfully (and include labor protections, portability, allow participants to bring their close family members, and offer the possibility of adjustment if the worker would not displace a U.S. worker).
4. Effective security measures must include rigorous civil liberties, due process, and privacy protections. In this context, Congress must not erode judicial review. Immigration-related measures must reflect our nation's binding commitment to protect civil liberties, due process, and individual privacy. The Commission recognizes the need to reconcile "security with liberty, since the success of one helps protect the other." The Commission acknowledges the difficult challenge involved in preserving an acceptable balance between security and civil liberties but emphasizes in no uncertain terms the critical importance in vigilantly striving to get it right. As the Commission points out, a fundamental ground rule for that perpetual balancing effort is to place the burden of proof on the executive for retaining governmental power. The executive must demonstrate "(a) that the power actually materially enhances security and (b) that there is adequate supervision of the executive's use of the powers to ensure protection of civil liberties."
5. Measures designed to enhance our security must include provisions that mandate sufficient funding, an adequate number of well-trained officers, reasonable deadlines, accurate databases, technology that is up to the task, and Congressional oversight of implementation. Our history is riddled with laws that do not take these factors into account. Insufficient funding, impossible deadlines, inadequate training of an inadequate number of officers, and databases that are neither interoperable nor accurate will spell failure. Although reforms are overdue, they need to be carefully developed and implemented, and backed with sufficient resources to be successful. Rigorous planning, incorporation of stakeholder input and management controls typically associated with successful programs also are essential to the proper implementation of initiatives that address the issues the Commission raises.
6. Prioritization is a necessary component. Legislation seeking to implement the recommendations must reflect a clear, well-conceived process of prioritization. Congress must engage in rigorous risk-based and cost-benefit analysis to ensure that agencies are guided by clear priorities and are not overwhelmed by a flood of unachievable mandates.
7. The United States must remain a nation that welcomes people to its shores. Immigration is in our national interest, and a system that works is essential to our national and economic security. Our immigration system needs to reflect the importance of reuniting families, fulfilling the needs of American business, maintaining America's economic security (which contributes to our nation's well-being and national security), protecting refugees and asylees to meet our moral and international obligations and, as the Commission underscores, helping to enhance our security. The U.S. is a nation of immigrants and immigration remains central to who we are and helps to explain our success as a people and a country.
Jeanne A. Butterfield