Implementing 9-11 Commission’s Immigration Recommendations: Need to Get It Right

American Immigration Lawyers Association

September 7, 2004

Contact: Judith Golub
Julia Hendrix

Legislation Implementing the 9-11 Commission's Immigration-Related Recommendations: Need to Get It Right

Washington, DC - Today the first major bill to implement the recommendations of the National Commission on Terrorist Attacks upon the United States ("9/11 Commission" or "Commission") was introduced in Congress. Several other bills are expected to be introduced in the next few weeks. These bills follow the July release of the Commission's final report that offers an account of the circumstances surrounding the September 11, 2001 terrorist attacks and makes recommendations designed to guard against future attacks.

The chief sponsors of the bill introduced today are Senators John McCain (R-AZ), Joseph Lieberman (D-CT), Arlen Specter (R-PA), and Evan Bayh (D-IN), and Representatives Christopher Shays (R-CT) and Carolyn Maloney (D-NY). If enacted, this measure has the potential to profoundly impact our immigration system by initiating changes in diverse areas that include border security and entry-exit systems, identification security, travel to the United States, training, technology, and database capacity.

"Congress must vigorously and carefully debate this important bill and those that will follow," said AILA President Paul Zulkie. "If done hastily, with inadequate discussion and understanding of the issues, any measures enacted into law could have the unintended consequence of hurting our security and making our immigration processes even more dysfunctional than they are today.," Mr. Zulkie continued: "Congress and the Administration need to get this right. They need 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.'" (387)*

AILA strongly supports the Commission's admonition and will analyze the measure introduced today and those that follow based on how these measures 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." (384) 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 provisions must include 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. Such enhancement was a central component of the Enhanced Border Security and Visa Entry Reform Act (PL 107-173) that was signed into law after the 9/11 terrorist attacks. That measure set our nation on the right track, recognizing that enhanced intelligence capacity is essential to any successful efforts to secure our borders. Equally central 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. The Commission notes that "the further away from our borders that screening occurs, the more security benefits we gain." (389) 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. The goal in all cases is to ensure, as the Commission recommends, that "our border screening system should check people efficiently and welcome friends." (389)

Another critical component to 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. Access to counsel must go hand in hand with enhanced border security, especially because the denial of such access in situations where asylum seekers, business persons, and relatives of U.S. citizens and legal permanent residents may be barred forever from the U.S. without appeal clearly contravenes fundamental due process principles. Furthermore, under current practices, peanuts (for example) have more rights at our ports-of-entry than do people: Unbelievably, counsel is allowed access to deal with commercial issues at our ports, but not to facilitate issues that involve individuals. Such a restriction is senseless and harmful in the current security environment. In all cases, it is important to keep out people who seek to do us harm, not those seeking to come to the U.S. for reasons that people always have come here, including reuniting with family, working, or escaping persecution.

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). During an August Senate Judiciary Committee hearing, Undersecretary Hutchinson of the Department of Homeland Security noted that immigration reform (in the form of worker programs) would enhance security by allowing the government to focus resources on those who mean to do us harm.

4. Effective security measures must include rigorous civil liberties, due process, and privacy protections. 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." (395) In stressing the need to protect civil liberties while enhancing our security, the Commission recommends the creation of a civil liberties board that can look "across the government at the actions we are taking to protect ourselves to ensure that liberty concerns are appropriately considered." (395) Relatedly, the Commission recommends that guidelines be established for gathering and sharing information in the new security systems which integrate safeguards for privacy and other essential liberties: "While protecting our homeland, Americans should be mindful of threats to vital personal and civil liberties." 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." (394-95)

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, 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. Of special importance in these challenging times is Congress: Our federal elected officials must step up to the plate and vigorously debate any legislation introduced that would implement the 9/11 Commission recommendations, and they must vigorously perform oversight of any enacted measures.

6. Prioritization is a necessary component. Legislation seeking to implement the recommendations must reflect a clear, well-conceived process of prioritization. As the Commission notes: "Hard choices must be made in allocating limited resources" (391) and that throughout "the government, nothing has been harder for officials-executive or legislative-than to set priorities, making hard choices in allocating limited resources." (395) 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. Such prioritization is absolutely necessary for any measures enacted to achieve the goals articulated by the Commission.

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. Yet the "culture of no" that arose after September 11 and which characterizes too much of the current adjudicatory environment is hurting America and does not embrace the Commission's charge to "balance security, efficiency, and civil liberties." (386) Rather, the "culture of no" appears to be one of the "overreactions" the Commission identified that "can impose high costs too-on individuals, our economy, and our beliefs about justice." (387)

* Page numbers refer to the authorized edition of the 9/11 Commission Report published by W.W. Norton and Company.

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Founded in 1946, AILA is a nonpartisan, nonprofit organization that provides its Members with continuing legal education, information, and professional services. AILA advocates before Congress and the Administration and provides liaison with the DHS and other government agencies. AILA is an Affiliated Organization of the American Bar Association.

American Immigration Lawyers Association
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Cite as AILA Doc. No. 04090762.