War on Terror and Immigration Topic
Paper
Written by: Sue Peterson with previous
research by Serena Turley
If you are looking for a topic that will include both
legal research and foreign policy exploration, than this is the topic for
you. The benefit of using the War on
Terror (focusing on the Patriot Act and the Homeland Security Act) and its
relationship to immigration for a topic is many. It is a recent issue that was controversial
enough to provide information on both sides of the debate. It is a topic that provides access to a
variety of big impact scenarios, but also offers access to numerous critical
arguments and alternative sources of evidence (narratives, interviews, and even
music). Although there may be some
concern about overlap with the high school topic, we believe the specificity of
a focus on immigration is narrow enough to exclude much overlap with the high
school topic.
Immigration is a ripe area for debate. Prior to September 11, there were a number of
discussions focused on reforming the system.
Some focused on increasing restrictions, but many focused on the
economic benefits of increasing access to the U.S. by foreign-born
citizens. Just a few days prior to
September 11, President Bush met with Vincente Fox to
discuss the possibility of decreasing restrictions along the Mexican/U.S.
border. Any changes discussed in that
meeting quickly fell victim to the attacks.
Instead, immigration reform quickly took on an anti-terrorism focus with
piecemeal reforms coming through various acts including the Patriot Act and the
Homeland Security Act. This paper will
provide background on immigration reforms since September 11 related to the War
on Terror, discuss arguments on both sides of the issue, and provide some
specific debate arguments possible within this topic area. I have tried to include examples of evidence
for the arguments to provide readers with an idea of what the literature says
about some of the arguments. This
obviously is not an exhaustive example (or even close to it) of the literature
available, but what a very quick research attempt produced.
Immigration Reforms since September 11
Although the United States did not decrease the numbers
of immigrants allowed into the country legally after September 11, there was a
definite affect on civil liberties provided to these individuals as well as an
increased reliance on law enforcement approaches to the screening of
immigrants, aliens and visitors. The
changes directly connected to the War on Terror are included in two bills – the
USA Patriot Act and the Homeland Security Act.
The USA Patriot Act included a number of policies
specific to border patrol, information technology, alien organizational
activities, biometric information gathering, and foreign student monitoring.
Linda Schmittroth, 2004. [“Immigration Laws and Policies
Since the 1980s,” Opposing
The first law was the Uniting
and Strengthening America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism (USA Patriot) Act (PL 107-56), signed into law in
October 2001. With reference to immigration, it
• Mandated that the number of personnel at the Northern
Border be tripled, appropriated funds for technology improvements, and gave the
INS access to the FBI's criminal databases. The INS was to begin the task of
locating hundreds of thousands of foreigners who had been ordered deported and
entering their names into the FBI database.
• Amended the Immigration and Nationality Act (INA) to
clarify that an alien who solicits funds or membership or provides material
support to a certified terrorist organization can be detained or removed from
the country.
• Directed the attorney general to implement an
entry/exit system, with particular focus on biometric information gathered
during the visa application process and the development of tamper-resistant
documents. The system requires that certain nonimmigrants
must register with the INS and submit fingerprints and photographs upon arrival
in the United States; must report to the INS in person within 30 days of
arrival and annually thereafter; and must notify an INS agent of their
departure. Those who fail to comply may face criminal prosecution.
• Appropriated $36.8 million to implement a
foreign-student monitoring system in which all institutions of higher education
that enroll foreign students or exchange visitors are required to participate.
The act expanded the list of participating institutions to include air flight
schools, language training schools, and vocational schools.
The affect on immigration
policies from the USA Patriot Act was limited.
But, the following year, the Homeland Security Act was passed. This legislation had a much larger impact on
immigration, with a number of specific sections related to immigration.
The Homeland Security Act transferred INS control from
the Department of Justice to the Department of Homeland Security creating two
Bureaus – one focused on letting people in (Bureau of Citizenship &
Immigration Services) and one focused on keeping people out (Bureau of
Immigration and Customs Enforcement or Bureau of Border Security)
Linda Schmittroth, 2004. [“Immigration Laws and Policies
Since the 1980s,” Opposing
Title IV, Section 402 of the
Homeland Security Act transferred the responsibilities of the INS from the
Department of Justice to the DHS. With the goal of separating immigration
services from immigration law enforcement, on March 1, 2003, the INS became the
Bureau of Citizenship & Immigration Services (BCIS), responsible for
processing visas and petitions for naturalization, asylum, and refugee status.
Immigration enforcement became the responsibility of the Bureau of Immigration
and Customs Enforcement (called the Bureau of Border Security in the act).
In addition to the restructuring, the Act also created
the Under Secretary for Border and Transportation Security with broad
responsibilities for border security, visas, and customs
Linda Schmittroth, 2004. [“Immigration Laws and Policies
Since the 1980s,” Opposing
Section
401 of the Homeland Security Act delineated the responsibilities of the Under
Secretary for Border and Transportation Security. These include:
• Preventing the entry of
terrorists and the instruments of terrorism into the United States.
• Securing the borders, territorial
waters, ports, terminals, waterways, and air, land, and sea transportation
systems of the United States.
• Administering the immigration and
naturalization laws of the United States, including the establishment of rules
governing the granting of visas and other forms of permission to enter the
United States to individuals who are not citizens or lawful permanent
residents.
• Administering the customs laws of
the United States.
• Ensuring the speedy, orderly, and
efficient flow of lawful traffic and commerce in carrying out these
responsibilities.
Although most of these changes have been
to increase restrictions against immigration, the course is still open as to
what final direction to take on immigration
Suro,
2004. [Robert,
Director of Pew Hispanic Center, “Who are “We” now? The Collateral Damage to Immigration,” The War on our Freedoms: Civil Liberties in
an Age of Terrorism]
Much has changed in the way the
United States perceives and treats immigrants since September 11, but the full
character and the permanence of those changes are still to be determined. The stage of emergency actions has passed,
and the initial bureaucratic realignment is in place. However, many fundamental issues have yet to
be broached. Whether the legacy of
September 11 for immigration is a series of measures designed to make the
homeland more secure or a wholesale revision of the ways the nation relates to
the foreign-born is very much in play.
It has also become apparent that the
system of change that is taking place is more piecemeal than wholesale. Prior to 9/11 there were a number of foreign
workers who arrived by legitimate channels, but overstayed their visas to continue
working. Because of the economic benefit,
many of these individuals were not sought after by immigration agencies or
officials. This suddenly changed after
9/11. These changes have, unfortunately,
come piecemeal – “in isolation, and as compliance issues without regard for the
failures elsewhere that caused them” (Suro,
2004).
Agencies involved in immigration
Numerous agencies can be discussed
within the context of immigration and its relationship to the War on
Terror. The United States can be
accessed via air, sea, and road and rail.
In the area of airport security, agencies involved include the FAA and
Customs. Sea travel involves The Coast
Guard, Customs, local port security, and in extreme cases the Navy and even the
Air Force. Road and rail are of key
importance, with 6,000 miles of land borders in the United States. As discussed above, changes dictated in the
Homeland Security Act have revised the agencies dealing with these areas.
Arguments for increasing immigration restrictions
post-9/11
Although our foreign policy actions concerning the War on
Terror may be controversial, most individuals in the United States would agree
that prevention of another terrorist attack should be a primary concern for our
current government. The question is what
should be entailed in those preventive efforts and at what cost does the
benefit of prevention come? Although
immigration is only one piece of the puzzle, considering that the 9/11 attacks
were perpetrated by immigrants, many of whom were in the country in violation
of immigration policies. The following
are arguments made for the additional protections and restrictions in
immigration policy adopted post 9/11.
The additional scrutiny allowed on immigration in the
Patriot Act has been invaluable in protecting the U.S. against further
terrorist attacks
Michelle Malkin, 2004. [“Antiterrorism legislation will make America safer,” Opposing Viewpoints Series, Database:
Opposing Viewpoints: Terrorism]
The results speak for
themselves:
* The feds have busted more than 20
suspected al Qaeda1 cell members from Buffalo, N.Y., to Detroit, Seattle, and
Portland, Ore.
* More than 100 other individuals have been
convicted or pled guilty to terrorist-related crimes.
* The United States has deported 515
individuals linked to the September 11 investigation.
* Hundreds of foreign criminals and
suspected terrorists, plus one known member of al Qaeda, were prevented from
entering the country thanks to the National Entry-Exit Registration
System--which Sen. Ted Kennedy (D.-Mass.) attempted to sabotage earlier this
year [2003].
* Long overdue fingerprint cross checks of
immigration and FBI databases at the border have resulted in the arrest of more
than 5,000 fugitives wanted for crimes committed in the United States.
* And nearly two years after the September
11 attacks, there has not yet been another mass terrorist attack on our
homeland.
Securing our perimeter from dangerous people and
objects is the first place to protect against harms to our homeland
The Brookings Institute, 2002. [Protecting the
American Homeland: A Preliminary Analysis]
. . . The most effective way to avoid attacks that
would cause serious harm to our homeland would be to identify and thwart the
perpetrators from reaching the United States, and from bringing with them the
means of destruction, in the first place.
That is why the first tier of our strategy focuses on securing our
perimeter. This means keeping out
dangerous people and dangerous objects—notably, weapons of mass destruction,
threatening aircraft and cruise missiles, high explosives, antiaircraft
missiles such as the Stinger, and certain other weapons—before attacks can be
planned and launched.
Smuggling groups based in Middle East and Asia are
teaming up with traditional Latin American organizations to smuggle terrorists
into the U.S. – border patrol is key
Finley,
2003. [Bruce,
“Migrant Smugglers Traffic in Terror, Federal Officials Say,” The Denver Post, Sept. 14, reprinted in Homeland Security]
High-ranking agents say the U.S.-Mexico border still
is vulnerable to smuggling, that possible terrorist traffic may flow through
Colorado, and that smugglers are enticed by huge potential profits from
terrorist clients as legal entry becomes more difficult.
Smuggling groups based in the Middle East and Asia
“are teaming up with traditional Latin American organizations to help move
their cargo into the United States,” said Jim Chaparro,
special agent in charge of U.S. Immigration and Customs Enforcement across a
four-state region that includes Colorado.
Chaparro formerly ran anti-smuggling
investigations nationwide.
“These guys are playing hardball, the terrorists,” Chaparro said. “They
are never going to quit.”
Opponents claims are not borne out in legal
proceedings – the courts have upheld every major initiative and tactic
justified in the Patriot Act
Michelle Malkin, 2004. [“Antiterrorism legislation will make America safer,” Opposing Viewpoints Series, Database:
Opposing Viewpoints: Terrorism]
Opponents of the Bush
Administration's homeland defense and immigration enforcement efforts complain
that the war on terror has eviscerated civil liberties and constitutional
rights.
They have falsely portrayed
the Patriot Act as allowing the feds to spy on library patrons without a
warrant or criminal suspicion--a lie perpetuated by the truth-challenged New
York Times. They have hysterically compared the detention of illegal aliens
from terror-friendly countries to the World War II internment of Japanese.
And they have likened
Ashcroft, Dinh, and the Justice Department to the
[former Afghanistan government] Taliban and Nazis.
Never mind that the courts
have so far upheld every major initiative and tactic from keeping immigration
deportation hearings closed, to maintaining secrecy of the names of illegal alien
detainees, to allowing use of the Patriot Act surveillance powers.
Dinh is refreshingly unapologetic and to the point in
response to the alarmists: "The threat to liberty comes from Osama bin
Laden and his [al Qaeda] terrorist network, not from the men and women in blue
who work to uphold the law."
Drawing on [political
philosopher] Edmund Burke's theory of "Ordered Liberty," which argues
that liberty cannot be exercised unless government has first provided civil
order, Dinh observes: "I think security exists
for liberty to flourish and liberty cannot exist without order and
security."
An “EZ-pass” approach would reduce costs and delays
while still providing additional security measures
The Brookings Institute, 2002. [Protecting the
American Homeland: A Preliminary Analysis]
Furthermore, to reduce the costs involved and provide
incentives for additional, cost-effective security measures, the government
should offer an “EZ-pass” approach whenever possible. That is, individuals or firms willing to undergo
additional security background checks or willing to undertake additional
security measures should receive some benefit in exchange, for example, in the
form of expedited clearance through Immigration or Customs or lower insurance
premiums.
There are a lot of discussions in the literature as to
how to most effectively increase security in our immigration efforts. The following were included in The 2002
Brookings Institute report, Protecting
the American Homeland: A Preliminary Analysis:
Increasing/improving information sharing among
agencies, both domestic and international. This included quantity of
information, accuracy of information, verifiability of information, reliability
of information and speed of information systems. Solutions discussed included databases (some
already have begun, but speed and collection efforts are problematic),
biometric identifiers on immigration records accessible through computerized
systems.
Visa processing improvements. These
included (1)increasing staffing, training and
experience of consular line officers; (2) for those not going through the visa
inspection process (those individuals from Visa Waiver Program countries) a
focus needs to be put on decreasing passport fraud. Stolen passports and stolen blank passport
stock often go unreported; and (3) increase the use of biometric identification
materials on passports and at entry points into the U.S. Many countries still lack machine readable
passports, making fraud a readily available way to enter the country.
Increasing border security. Increasing
the number of border patrol agents to cover for the additional responsibilities
of anti-terrorism efforts, as well as increasing the resources available to
border patrol efforts along the northern border, which was seen as particularly
vulnerable was discussed. Use of
technology was also advocated including cameras and sensors in the
harder-to-reach areas was also advocated. Increases in technology
available to immigration services was also discussed.
Increased cooperation with Mexico and Canada on
security efforts.
Arguments against increased restrictions on
immigration post 9/11
The following arguments are those that arise against the
immigration policies adopted and proposed since 9/11. According to these authors, the cost, whether
economic or rights-based, is seen as far too high to accept. They also question whether the reforms are
even effective at reaching their stated goals.
Many of the reforms have lost focus on
the need to improve the functioning of the immigration system and have instead
focused on making it a more effective system for law enforcement
Suro,
2004. [Robert,
Director of Pew Hispanic Center, “Who are “We” now? The Collateral Damage to Immigration,” The War on our Freedoms: Civil Liberties in
an Age of Terrorism]
Worse, yet, from the point of
view of immigration reform, the underlying intent of the new initiatives is not
to improve the functioning of the immigration system but rather to make that
system a more effective tool of law enforcement. That imperative is understandable at a time
of national peril, yet it does not bode well even for the immediate objective
of screening out potential terrorists.
In order to ensnare a relatively small number of evildoers, the
government is attempting to change the behavior of many hundreds of thousands
of people without addressing either the proximate or the long-term causes of
that behavior. Moreover, because those
who abuse visitor and student visas are a small fraction of the total number
who travel here on such visas, the new efforts will necessarily collect vast
amounts of information on individuals who are entirely law-abiding, thus
further clogging intelligence arteries.
It is as if a police department decided to record the license plate numbers
of ever vehicle that passed through an intersection in order to identify those
that run a red light.
The Patriot Act violates all three of
the major principles for guiding appropriate response to threat of terrorism
Cole, 2003. [David, professor at Georgetown University Law Center,
“Let’s fight terrorism, not the constitution,” Rights vs. Public Safety after 9/11: America in the age of terrorism]
Three principles in particular
should guide our response to the threat of terrorism. First, we should not overreact in a time of
fear, a mistake we have made all too often in the past. Second, we should not sacrifice the bedrock
foundations of our constitutional democracy—political freedom and equal
treatment—absent a compelling showing of need an adoption of narrowly tailored
means. And third, in balancing liberty
and security, we should not succumb to the temptation to trade a vulnerable
minority’s liberties, namely, the liberties of immigrants in general or Arab and
Muslim immigrants in particular, for the security of the rest of us.
Unfortunately, the USA Patriot
Act, our government’s first legislative attempt to respond to the threats posed
by September 11, violates all three of these principles. It overreacts in just the way that we have so
often overreacted in the past: by
substituting guilt by association for targeted measures directed at guilty
conduct. It violates core constitutional
principles, rendering immigrants deportable for their political associations,
excludable for pure speech, and detainable on the attorney general’s
say-so. And by reserving its harshest
measures for immigrants—in the immediately foreseeable future, Arab and Muslim
immigrants—it sacrifices commitments to equality by trading a minority group’s
liberty for the majority’s security. In
addition to being unprincipled, our response will in all likelihood be
ineffective. Painting with a broad brush
is not a good law enforcement tool. It
wastes resources on innocents, alienates the very communities we need to be
working with, and makes it all the more difficult to distinguish the true
threat from the innocent bystander.
The Patriot Act’s principal
flaws are as follows: (1) It imposes
guilt by association on immigrants, resurrecting a long-abandoned philosophy of
the McCarthy era; (2) it authorizes executive detention on mere suspicion that
an immigrant has at some point engaged in a violent crime or provided
humanitarian aid to a proscribed organization; and (3) it resurrects
ideological exclusion, denying admission to aliens for pure speech,
resurrecting yet another long-interred relic of the McCarthy era.
“Preventative detention” as described in the USA
Patriot Act has allowed the Federal Government to round up hundreds of
foreign-born individuals and hold them without legal charges or legal
representations. When hearings do occur,
they are closed, allowing no oversight of justice in these cases. This is basically the equivalent of what the
government did to Japanese-Americans during World War II.
Hank Kalet, 2004. [“Antiterrorism Legislation Threatens Civil
Liberties,” Opposing Viewpoints Series, Database:
Opposing Viewpoints: Terrorism]
It has rounded up and kept
secret the names of hundreds of foreign-born individuals, most without charges
or access to legal representations, in what has [been] called
"preventative detention," essentially replaying our detention of
Japanese-Americans during World War II. In conjunction, it has closed hearings
in what the nation's chief immigration judge has called "special
interest" immigration cases and closed off access to the federal courts
for aliens who wish to challenge this secrecy. (A federal judge has ruled that
the administration has to release the names....).
Closed hearings for immigration court cases affiliated
to war on terror was first in a series of actions that curbed due process for
the foreign-born
Suro,
2004. [Robert,
Director of Pew Hispanic Center, “Who are “We” now? The Collateral Damage to Immigration,” The War on our Freedoms: Civil Liberties in
an Age of Terrorism]
Ten days after the September
11 attacks, Chief Immigration Judge Michael Creppy
issued a memo stating that “the Attorney General has implemented additional
security procedures for certain cases in the Immigration Court” that “require”
all immigration judges handling such cases to “close the hearing to the
public.” That notification fit a pattern
for what became a series of Justice Department administrative actions that
curbed due process for the foreign-born in cases somehow related to what had
become the war on terrorism. The
notification was issued after the new rules had taken effect. Little or no explanation or rationale was
offered, and there was no opportunity to challenge the action.
In addition to the closed hearings, the “round-up” of
foreign-born citizens – predominantly Muslim individuals – set a precedence for
large categories of foreigners to be held under “suspicion” without any
disclosure of reasons, process or results
Suro,
2004. [Robert,
Director of Pew Hispanic Center, “Who are “We” now? The Collateral Damage to Immigration,” The War on our Freedoms: Civil Liberties in
an Age of Terrorism]
There was nothing new about the
tactic of using the nonjudicial nature of immigration
procedures to facilitate law enforcement actions that would have been
impossible with citizens, but it had never been applied in such a vast and
draconian manner. The post-September 11
roundups did set a precedent of another sort, however. Repeatedly thereafter, the Justice Department
aimed suspicion at broad categories of foreigners, generating an enormous
workload for itself in trying to process them.
The Justice Department has never offered a full accounting of the fate
of the detainees. However, it appears
that a handful were eventually held as material witnesses, and some more were
found to be wanted for crimes unrelated to terrorism. The vast majority were held on alleged
violations of their immigration status, such as overstaying a tourist visa. Dozens were held for further questioning even
after their immigration cases had been resolved either with a deportation order
or a voluntary departure agreement. Most
of the detainees were eventually released.
There are no indications that anyone caught in the autumn 2001 roundups
was ever linked to the September 11 attacks or was found to possess any
knowledge of them.
Immigration is key to U.S. economy –
restrictions hurt us
Suro,
2004. [Robert,
Director of Pew Hispanic Center, “Who are “We” now? The Collateral Damage to Immigration,” The War on our Freedoms: Civil Liberties in
an Age of Terrorism]
Ideally, the free and open flow
of business travelers, tourists, students, and relatives from around the world
should be viewed as an extraordinary resource, indeed a blessing and an
advantage. The fact that the United
States is by far the globe’s most visited nation should be a point of
pride. And the free flow of people
should be recognized as an essential economic asset at a time when the rapid
interchange of information is the key to increased productivity. Moreover, the traffic of visitors should be
understood as an exceptionally effective means of recruitment for the
immigration system. Immigrants should be
viewed as citizens-in-training.
For the past quarter century,
the nation’s openness to foreign students has allowed U.S. corporations and
universities to cherry-pick the world’s best scientific, technical, and
engineering talent, and this human capital has contributed hugely to the
development of a postindustrial information-based economy. Needless to say, substantial sectors of the
economy, such as the travel, hospitality, and entertainment industries, depend
directly on visitors from abroad.
And even those who agree that
illegal immigration is a problem do not agree that this increase in focus on
War on Terror efforts is a good thing.
The focus on anti-terror efforts trades
off with traditional border control efforts
Smith and Messina, 2004. [Norris and Lynn M., “Immigration and Border Patrols:
Editor’s Introduction,” Homeland Security]
At the southern border federal
agents claim that they have captured smugglers who are moving Middle Easterners
into the United States, Bruce Finley reports in the Denver Post (“Migrant Smugglers Traffic in Terror, Federal
Officials Say”). However, these arrests,
which the government will not discuss in any detail, have been accompanied by a
decline in arrests for the ordinary immigration violations that are often
committed by Latino illegals and their American
employers. Some critics think the
immigration authorities may be overreacting to the threat of infiltration and
assigning resources to the “war on terror” that are still needed for
conventional duties.
Legal Controversies
Current court controversies include Freedom of
Information, Secret Deportation Hearings, and the terror suspects held in Cuba
Linda Schmittroth, 2004. [“Immigration Laws and Policies
Since the 1980s,” Opposing
Freedom of Information
On August 2, 2002, U.S.
District Court Judge Gladys Kessler ordered the DOJ to release the names of the
detainees and their attorneys. Her ruling stated: "Secret arrests are a
concept odious to a democratic society and profoundly antithetical to the
bedrock values that characterize a free and open one such as ours."
On June 17, 2003, the U.S.
Court of Appeals for the District of Columbia Circuit issued its decision on
appeal (Center For National Security Studies, et al., v. U.S. Department Of
Justice [No. 02-5254 & No. 02-300]). The court found that the DOJ was
justified in withholding information about the detainees, whose status as of
June 2002 was described in the court's opinion:
• Of the more than 700 detainees held on
immigration-related charges, 74 remained in custody. Many had been deported.
• Of the 134 individuals detained on federal criminal
charges, 99 were found guilty either through pleas or trials.
• An undisclosed number of persons believed to have
information relating to the events of September 11 were detained after a judge
issued a material witness warrant to secure their testimony before a grand
jury. The government is prohibited by court orders from releasing any
information about the proceedings.
Secret Deportation Hearings
On September 21, 2001, Chief
Immigration Judge Michael Creppy issued an order
stating that typically open deportation hearings should be closed in any case
deemed of "special interest" in the investigation of the terrorist
attacks. A lawsuit was filed by the American Civil Liberties Union (ACLU) on
behalf of Representative John Conyers (D-Mich) and
Michigan newspapers challenging Judge Creppy's order
after the public and press were denied access to the deportation hearing of a
Muslim religious leader who had overstayed a tourist visa.
On August 26, 2002, the U.S.
Court of Appeals for the Sixth Circuit ruled in Detroit News, Inc., et al v.
Ashcroft et al. that the Bush administration acted unlawfully in holding
hundreds of deportation hearings in secret on the sole grounds that those
involved were terrorism suspects. "Democracies die behind closed
doors," Judge Damon Keith wrote. His ruling characterized the September 11
attacks as "egregious, deplorable, and despicable" events that led to
vigorous prosecution of immigration laws, but he described governmental secrecy
as "profoundly undemocratic" (2002 FED App. 0291P [6th Cir.], No.
02-1437).
In a separate suit, the ACLU
represented the media seeking information on the "special interest"
detainees taken into custody in New Jersey. A lower court judge in Newark
ordered the government to open all such hearings to the public unless it could
offer case-by-case proof of the need for secrecy. The Third U.S. Circuit Court
of Appeals reversed the lower court ruling (North Jersey Media Group, Inc.; New
Jersey Law Journal v. John Ashcroft, Attorney General of the United States;
Michael Creppy, Hon, No. 02-2524). The case was
appealed to the U.S. Supreme Court, which declined to review it.
The courts' decisions in the
two cases left the government in a position where its power to hold secret
hearings was restricted in the four states belonging to the Sixth Circuit
(Tennessee, Michigan, Ohio, and Kentucky) but not in the remaining 46 states.).
Suspected Terrorists Held in Cuba
In March 2003 a federal
appeals court ruled that 650 suspected members of the al-Qaeda terrorist
network and the former Taliban regime in Afghanistan who were being held at a
U.S. naval base in Guantánamo Bay, Cuba, had no legal
rights in the United States and may not ask courts to review their detentions
(Al Odah v. United States, No. 02-5251
). The case, brought by relatives of some of the detainees, contested
the legality and conditions of their confinement. Earlier, a Washington Post
article, "U.S. Decries Abuse but Defends Interrogations" (Dana Priest
and Barton Gellman, December 26, 2002), described alleged inhumane treatment of
the individuals being held in Cuba.
In addition to
these areas, other areas concerning constitutional law appear often in the
literature. The legal concerns that have
an immigrant-specific deal with the First and Fifth Amendments. But these are not cut and dry at this point
either. The following are some of the
examples of court cases being used to justify current legal interpretations in
The Patriot Act and/or Homeland Security Act.
U.S. v. Verdugo-Urquidez
restricts rights for aliens
Kmiec,
2003. [Douglas
W., dean and St. Thomas More Professor of Law at the Catholic University of
America, “Confusing freedom with license—licenses terrorism, not freedom,” Rights vs. public safety after 9/11: American
in the age of terrorism]
Terrorists or those seeking association with them
clearly can be excluded from our nation without offending the First Amendment
or any other provision of the Constitution.
While additional rights do attend an immigrant granted admission, such
rights are not necessarily on par with those of citizens. In U.S.
v. Verdugo-Urquidez, for example, the Court
opined that “[our] cases . . . establish only that aliens receive
constitutional protections when they have come within the territory of the
United States and developed substantial connections with this country.” Lower courts have thus upheld the deportation
of an alien who associated with groups assisting Nazi persecution, even without
proof that the alien himself engaged in the act of persecution.
Zadvydas v. Davis establishes rights of the
Attorney General to determine legitimate length of detention for aliens
Kmiec,
2003. [Douglas
W., dean and St. Thomas More Professor of Law at the Catholic University of
America, “Confusing freedom with license—licenses terrorism, not freedom,” Rights vs. public safety after 9/11:
American in the age of terrorism]
So, then, for how long can a removable alien be
detained? Under the law prior to the
Patriot Act, removable aliens could be detained when “determined by the
Attorney General to be a risk to the community or unlikely to comply with the
order of removal.” This pre-Patriot Act postremoval detention authority was construed by the
Supreme Court in Zadvydas v. Davis, and the Court suggested six
months as a reasonable postremoval detention period.
Yet Zadvydas, as a case of statutory interpretation, did not
rule out more indefinite detention where risk to community or flight risk is
accompanied by special circumstance. The
Court explicitly noted that in establishing a presumptive six-month period for
detention, it was not denying the government detention beyond this point under
unique circumstances. Wrote Justice Breyer for the Court, “Neither do we consider terrorism or
other special circumstances where special arguments might be made for forms of
preventive detention and for heightened deference to the judgments of the
political branches with respect to matters of national security.
Advantage/Disadvantage Areas for Debate
Terrorism
Obviously, there will be a
wide range of arguments revolving around terrorism – in the U.S. and at foreign
locations.
Politics
The links to politics are
very good in the literature. Many of the
legislative actions are controversial, both with the House and with the
public. The Patriot Act is up for review
this year, with some sections up for “sunsetting” and
others up for reversal. This is sure to
make the politics debate timely and constantly changing in the literature.
Hegemony/Soft Power
The links to hegemony and
soft power leadership will be good in the literature. In addition, modeling evidence will lend
credence to soft power debates with specific country impact possibilities.
Civil rights
Rights disadvantages will be
good on both sides of the debate. Some
of the arguments appear above, and I have included some evidence from both
sides here.
Abuses of civil rights and due process
are resulting from the increased restrictions on immigration
Finley,
2003. [Bruce,
“Migrant Smugglers Traffic in Terror, Federal Officials Say,” The Denver Post, Sept. 14, reprinted in Homeland Security]
Abuses in civil liberties are resulting, said Ibrahim Hooper, spokesman for the Council on
American-Islamic Relations in Washington.
He cited a recent Texas case where a Pakistani man was detained for 27
hours in shackles after he returned from a visit to Pakistan via Malaysia.
“If authorities have actual evidence that somebody
might be up to no good, they should follow that evidence. But if it is just based on the fact that they
are Saudi, Arab or Muslim? That’s what
we have to watch out for. We have lots
of concerns about detention of Muslim- and Arab-Americans based on flimsy
evidence or no evidence at all.”
American Immigration Lawyers Association spokeswoman
Judy Golub said: “We all want to be safer. We need to balance that with the due process
and civil liberties that make this country strong. Our government hasn’t achieved that balance. If they have good evidence, it would be good
to know it.”
Dozens of cases of civil rights and liberties
violations against immigrants involving the USA PATRIOT Act have been
identified
Newsletter on Intellectual Freedom, 2003. [“Report on PATRIOT Act Alleges Rights Violations,”
September, reprinted in Homeland Security]
A report by internal investigators at the Justice
Department has identified dozens of recent cases in which department employees
have been accused of serious civil rights and civil liberties violations
involving enforcement of the sweeping federal antiterrorism law known as the
USA PATRIOT Act.
The inspector general’s report, which was presented
to Congress in July, raised new concern among lawmakers about whether the
Justice Department can police itself when its employees are accused of
violating the rights of Muslim and Arab immigrants and others swept up in
terrorism investigations under the 2001 law.
The report said that in the six-month period that
ended on June 15, the inspector general’s office had received 34 complaints of
civil rights and civil liberties violations by department employees that it
considered credible, including accusations that Muslim and Arab immigrants in
federal detention centers had been beaten.
Freedom is not license – restrictions must be
appropriate for the goals of the war against terrorism
Kmiec,
2003. [Douglas
W., dean and St. Thomas More Professor of Law at the Catholic University of
America, “Confusing freedom with license—licenses terrorism, not freedom,” Rights vs. public safety after 9/11:
American in the age of terrorism]
In considering the USA Patriot Act, it is useful to
remember that our founders’ conception of freedom was not a freedom to do
anything or associate for any purpose but to do those things that do not harm
others and that, it was hoped, would advance the common good. Freedom separated from this truth is not
freedom at all but license. Congress can no longer afford, if it ever
could, to confuse freedom and license because doing so licenses terrorism, not
freedom. Those who have voiced
opposition to the Patriot Act seem to have either a more extreme view of
freedom, a less sober view of the threats we face, or both.
With due respect, such unrefined autonomy or
complacency hides a basic confusion or underappreciation
for the war against terrorism that now must be fought. The objectors think of the mass destruction
of the World Trade Center and the Pentagon as the equivalent of murder,
kidnapping, or bank robbery. They think
the point is a criminal trial; it is not—it is the elimination of terrorism.
Economy:
There is evidence on both
sides of the debate concerning the economic impacts of the War on Terror in
general as well as the implications of the sections specific to
immigration. It also accesses the
multitude of links between immigration generally and the economy.
There are a number of methods for reforming our border
security – some come at a very high cost, while others would actually save
money
The Brookings Institute, 2002. [Protecting the
American Homeland: A Preliminary Analysis]
Many of these steps could incur substantial economic
costs, since they would increase waiting times for people (and goods) at the
borders and therefore interfere with international trade and the flow of
workers. Some could be implemented with
low or moderate cost to the federal government and without damaging the normal
workings of the national economy or seriously inconveniencing Americans. By way of example, improved visa and passport
procedures could produce tighter security at relatively low cost without
substantial increases—and potentially even a reduction—in waiting times for
most travelers. Measures of intermediate
cost that would impose a limited burden on the economy would be to inspect most
cargo during loading overseas. And a
high-cost effort might be to inspect most cargo at home using traditional
techniques and a massively expanded Customs Service .
Extensive reviews of visa applications of scientists,
engineers and technical fields could hobble the U.S. economy and compromise
national security
Mukerjee,
2003. [Madhusree, “Boxed Out,” Scientific
American, June 26, reprinted in Homeland
Security]
After the September
11 attacks, the clampdown on those from overseas wishing to study in the U.S.
was inevitable. The PATRIOT Act of 2001
quickly implemented an electronic system for tracking foreign students, and
officials are now extensively reviewing visa applications of scientists,
engineers and students in technical fields.
These an other ongoing efforts are creating a
“viscous” visa system, notes William F. Brinkman, president of the American
Physical Society (APS). Although such a
system makes it harder for would-be terrorists to slip through, Brinkman
maintains that it could hobble the U.S. economy and actually compromise
national security.
Relations with foreign countries:
The most likely relations
disadvantages will deal with Canada and Mexico in land-based border cases and
Europe for air-based cases. But, there are access to numerous other countries via sea and air, as
well as those countries with Visa Waiver Programs.
Focus on Canadian border strains
relations with Canada
Smith and
Meanwhile, the new emphasis on the Canadian border
has irritated some of our northern neighbors at a time when relations already
are strained over differing stands on the war against terrorism. “Everyone is aware—at least in Canada—that
the terrorists who perpetrated the attacks against the World Trade Center
didn’t enter from Canada,” says Elizabeth Bryson, an immigration attorney in
Vancouver, B.C. “Yet what’s the immediate reaction? Blame it on Canada.” Some hasten to add that the border problem,
contrary to how Americans are accustomed to thinking, works both ways, with
illicit activity coming from, as well as into, the U.S.
Spending:
The cost factor involved in
much of the legislation is huge. This
has been a definite reason given for bills that have been passed but not
implemented. The cost of this in the
current environment of large deficits and huge war expenditures is sure to
provide links to large-scale impacts.
But, the economy debate on the other side provides for a good debate on
the internal link and turn levels.
Implementing biometric indicators and improved
computer systems alone would cost $2 billion plus
The Brookings Institute, 2002. [Protecting the
American Homeland: A Preliminary Analysis]
. . . Counting
costs of biometric indicators as well as improved computer systems, costs could
be $2 billion or more.
Brain Drain:
Due to the focus on academic
and technological visas, the debate on brain drain – both for the U.S. and
other countries will be a debate in the literature.
Reduction in the number of academic visas will result
in loss of U.S. preeminence in science and engineering
Mukerjee,
2003. [Madhusree, “Boxed Out,” Scientific
American, June 26, reprinted in Homeland
Security]
What may not make it through is U.S. preeminence in
the physical sciences. In science and engineering fields, between 30 to 50 percent of
doctoral degrees go to foreigners, many of whom stay: in physics, a third of
the faculty is foreign born. U.S.
science gathered momentum during World War II, thanks to the influx of trained
Europeans. Several estimates attribute
fully half the growth in the American economy since then to innovation in
science and technology, with “aliens” having played no small part. Lerch fears that a
significant, permanent reduction in the numbers of visas for scientists and
engineers could cause a long-term downturn in the economy.
Brain drain from decreased visa approval undermines
long-term national security
Mukerjee,
2003. [Madhusree, “Boxed Out,” Scientific
American, June 26, reprinted in Homeland
Security]
Outsiders have also contributed to defense: Albert Einstein and Enrico
Fermi, whose ideas lay behind the atom bomb, were originally citizens of then
enemy countries. But new regulations
prevent foreigners from being employed on a host of “unclassified but sensitive”
projects in academia and industry.
“There are categories of people who can’t work in certain categories of
knowledge,” notes the CEO of a security-related software firm, who requested
anonymity. “There is difficulty getting
talented people, across the board.”
Concern about staff qualifications at the national weapons labs was
already running high after the Wen Ho Lee affair at
Los Alamos, which promulgated perceptions of racial profiling that made even
some U.S. citizens reluctant to apply for positions at the labs. The new restrictions are exacerbating the
problem and, according to the trade group Information Technology Association of
America, could undermine long-term security.
SOP:
This is a huge area for the
issue, providing good net benefits for agency counterplan
debates.
Detention efforts are a violation of SOP – it is a
huge expansion of executive power
Heymann,
2003. [Philip B.,
James Barr Ames Professor of Law at Harvard Law School, Terrorism, Freedom and Security]
These awesome and threatening claims of executive
power have hardly been used because the administration has been able to detain
more than 1,200 aliens for significant periods of time by manipulation of
arrest, detention, and removal practices with regard to aliens guilty of unauthorized
stays within the United States or by a nearly unprecendented
use of the statute allowing detention of witnesses who otherwise may not be
available to testify. It has carefully
exploited the right to use selective enforcement of rarely used statutes and
powers to act against a group or an activity for purposes largely unconnected
with the purposes of the Congress in passing the statute . . .
. . . In the case of immigration laws, it has also
used its right to control many enforcement choices to delay filing charges,
delay hearings, and delay deportation orders after decision . . . There are about 20 million aliens in
the United States at any given time, a high percentage of whom are at least
technically in violation of one or another visa regulation. But that fact is now being used as a device
for holding suspects—most only weakly linked to terrorism—for purposes of
interrogation or incapacitation.
. . . The purpose of the detention powers is to reach
those who might be terrorists but might not be proved to be terrorists. Subjecting this vastly larger class to
detention makes a fundamental change in the relation of American citizens,
resident aliens, and visitors to those governing the United States. The change has been made without serious explanation. Even with an explanation, any such change
should be made by legislation, not be the executive.
The checks on SOP have been destroyed by secrecy and
lack of oversight
Heymann,
2003. [Philip B.,
James Barr Ames Professor of Law at Harvard Law School, Terrorism, Freedom and Security]
A strategy that directs administration officials to
go as far as law will allow, without any executive responsibility to consider
democratic freedoms, has no limits if
there is to be no judicial review of what the law allows. . .
Nor have the checks implicit in maintaining a
separation of executive, judicial, and legislative powers been accomplished by
a congressional role. The detentions are
not, in most cases, on grounds that Congress has authorized. The judiciary committees were long denied
oversight of new powers granted by the USA Patriot Act. The intelligence committees, to which alone
the administration acknowledges the duty to report, have complained that they
are not granted adequate information.
Whatever check on executive powers the voting public
might impose depends upon the public knowing what the Executive is doing. In the name of protection against discovery
of our secrets by terrorist enemies, the administration has denied almost any
obligation of transparency.
. . . There are always two effects of governmental
secrecy about matters of domestic security: both our enemies and our citizens
are kept in the dark, and sometimes the latter is much of the purpose.
Federalism:
Once again, we will be able
to access the federalism debate and arguments on both sides are good in the
literature.
State and local governments have enacted resolutions
expressing disagreement with various Patriot Act provisions going so far as to
prohibit local officials from assisting in federal enforcement efforts that are
seen to infringe on individual rights
Susan N. Herman, 2004. [Professor of Law Brooklyn Law School, “David G. Trager Public Policy Symposium: Our New Federalism? National Authority and Local Autonomy in the
War on Terror,”
This facet of federalism,
limiting the impact of local autonomy, has also come into play in the war on
terror as state and local governments have been making their own diverse
decisions about whether the new federal anti-terrorism legislation goes too far
in infringing privacy, liberty, free speech, or freedom of association. There
are now well over three hundred cities, towns, and villages, as well as four
states (Alaska, Hawaii, Maine, and Vermont), that have enacted variations of an
ACLU-inspired Bill of Rights Defense Committee resolution expressing
disagreement with various Patriot Act provisions and sometimes prohibiting
local officials from assisting in federal enforcement efforts in various ways.
n40 Because of cases like Olmstead, it is generally assumed that these local
governments may not resist or limit federal enforcement efforts within their
jurisdictions, even though, because of Printz, they
may not be required to offer their own services to help. But may a local
legislature order its local law enforcement officials not to cooperate with
federal agents, or [*1212] even impose a fine on its officials if they
do provide such assistance? n41
Answering questions of federalism is critical to War
on Terror – limitations on federal oversight could restrict anti-terrorist
efforts…but the question is whether law will effect
the War on Terror or the War on Terror will effect federalist interpretations
of the law
Susan N. Herman, 2004. [Professor of Law Brooklyn Law School, “David G. Trager Public Policy Symposium: Our New Federalism? National Authority and Local Autonomy in the
War on Terror,”
While structural questions
about federalism might seem abstract and even dry to non-lawyers, the
participants in the David G. Trager Public Policy
Symposium held at Brooklyn Law School on November 21, 2003, n12 recognized
these questions as timely, fascinating, and extraordinarily challenging. The
boundaries of federalism are critical to the war on terror because the Supreme
Court's case law may limit how far the federal government can go in enlisting
state and local law enforcement officials in their terrorism investigations.
For example, may the federal government require local law enforcement officials
to question suspects or to enforce immigration law, or order a seaport to
upgrade its security measures if those upgrades will have to be paid for by a
city or [*1205] state? Conversely, the Supreme Court's case
law may also limit how far state and local governments can go in refusing to
cooperate with those federal investigative efforts. May local law enforcement
officials, for example, refuse to disclose the immigration status of their
local residents to federal officials because they wish to encourage residents,
regardless of their immigration status, to use police and other local services?
Part of the challenge in
confronting such questions about spheres of authority arises from the fact that
the recent constitutional law constraining political choice about the
relationship between national authority and local autonomy has been fostered by
Justices and scholars at the conservative end of the political spectrum, who
have tended to disfavor big centralized government and to champion local
choice. n13 These judicially crafted limitations on federal power have
generally been opposed by those at the other end of the political spectrum, who
have tended to favor a strong federal role in areas like civil rights
enforcement and environmental regulation and to be skeptical of "states'
rights" arguments. n14 The federalism-based
limitations the Supreme Court developed during the 1990s were applied to
prevent Congress from enacting gun control laws,n15 remedies for violence
against women, n16 and particular
remedies for civil rights violations. n17 Now that the
federal government may be perceived by those toward the left of the political
spectrum as a greater threat to individual liberty, the potential antidote of
local autonomy may seem more attractive than it did during periods when states'
rights arguments were associated with arch-segregationists. And now that the
federal government's agenda is to promote national security, centralized
federal authority may seem more essential to those who believed that individual
states should be [*1206] allowed to opt out of federal schemes for
civil rights or labor law enforcement. To what extent will judges and scholars
who had identified themselves with a position on the law of federalism rethink
their commitments and take up the structural arguments of the other side? Where
is the line between principle and politics? Will the Supreme Court's federalism
doctrine affect the war on terror, or will the war on terror affect that body
of law?
Drug trade/human smuggling/arms smuggling:
Due to the impact on all the
access points of increasing or decreasing the restrictions, there will be
impacts on the drug trade, human smuggling and guns/arms smuggling.
Disease transfer:
Again, due to impact on
access points of increasing or decreasing the restrictions, there will also be
impacts on disease transfer prevention in immigration.
Counterplan ground
Courts vs. Congress vs. Executive Order: Sections of
the bill are currently being forwarded to higher courts to test the
constitutionality. This provides fertile
ground for the benefits of leaving these sections to the court or for working
through congress and/or the President to repeal the sections.
PICs: Because there are numerous sections of the
bills that relate to immigration, affirmatives may choose to repeal one or more
sections, providing the negative with PIC opportunities to leave sections
intact that the affirmative repeals, while allowing repeal of other
sections.
Mexico/Canada: Having Mexico or Canada adopt certain measures may
solve for the harms of some cases without having to take U.S. action.
Critique ground
Border Militarization:
Focus on anti-terrorism leads to militarization of the
border
Smith and
“It’s almost like we’ve been Mexicanizing
the Canadian border,” says Deborah Meyers, a prominent policy analyst at the
Migration Policy Institute. That doesn’t
trouble Meyers, who, like many, believes that “we’ve never funded the Canadian
border in the way in which it needs to be funded.” But Bellingham immigration
attorney Greg Boos detects a note of aggression in the growing rhetoric over
the Canadian border that has him wondering whether the government might move
toward the kind of paramilitary presence on the northern border that it has on
the southern. Such a strategy would not
go over well in his parts, he says. “We
consider ourselves to be friends of Canada up here.”
Nor, Boos argues, would it be effective. “The Mexican model doesn’t work on the
Mexican border, so why would it work on the Canadian border?” It’s a question you hear again and again from
a wide array of people concerned, including other immigration attorneys, policy
analysts, and law-enforcement officers in both the U.S. and Canada. It arises not only because the U.S. is
beefing up its law-enforcement presence along the Canadian border but because
it is doing so in a way that accords with a strategy developed on the Mexican
border. Called “forward deployment,” it
stresses having agents in highly visible positions right on the border, a
policy aimed at deterring illegal entry but one that critics feel neglects
important investigative work and enforcement efforts inside the country.
Borders Critiques
Foucault surveillance critiques
Rights Critiques
Alternative Forms of Debate Possibilities
Historical/Genealogical Examinations
There are numerous references
in the literature to the historical connections between some of the above
legislative reactions and those that came during World War I and World War
II.
Narratives
There will be plenty of
access to narratives from those effected by the War on
Terror and the immigration specific policies.