Immigration and National Security - Looking Back and Looking Ahead

By Bill West

2006 will certainly see changes in American immigration policies. Notwithstanding Congressional diversions caused by NSA domestic surveillance and indicted lobbyists, it is quite likely some form of immigration reform bill will surface for debate in both the House and Senate, particularly with Congressional elections looming in the Fall.

How all this will play out relative to counter-terrorism will remain to be seen. National and Homeland security issues are clearly critical considerations in any revisions to the Immigration and Nationality Act (INA) and how the country enforces and administers its immigration laws and policies.

Politicians on both sides of the aisle have proposed various versions of immigration reform, including differing plans for a �guest worker� program. The Administration has similarly supported such a plan, while denying such a process would amount to a legalization or amnesty similar to what occurred with the Immigration Reform and Control Act (IRCA) of 1986.

Interestingly, none of the politicians supporting a �guest worker� program have explained why such a process is necessary in view of the fact we already have one contained within the INA. I invite readers to view two USG websites, one from the US Citizenship and Immigration Services (CIS) and one from the US Department of State (DOS) and review the various nonimmigrant (temporary) worker visa categories available to aliens (and US employers who wish to employ them) who would like to temporarily work in the United States. The H-2A category applies to agricultural workers. The H-2B category applies to nonagricultural skilled and unskilled workers�presumably for those jobs American citizens and resident aliens don�t want to perform�the ones the so-called new �guest worker� program is supposed to fix. If we already have a system in place, why not fine-tune that system and inject into it the appropriate resources needed to make it efficient and effective instead of creating yet another layer of untested bureaucracy�a layer that may be notably vulnerable to foreign security threats?

A commentary appeared today in the New York Sun that is noteworthy in itself. It hypothesizes the August 11, 2001 arrest of Mohammed Atta and three other 9/11 hijacker pilots, on the order of Attorney General John Ashcroft, based on evidence obtained from secret wiretaps. The article notes how, since these educated Arabs would have been in the country �legally,� that would have added to the outrage in the liberal media against the Government�s actions against them.

The article brought to mind how, while this Administration is substantially aggressive in the pursuit of national security matters, it does appear to have followed the path of the previous Administration in at least one immigration-related counter-terrorism category, and that is the Alien Terrorist Removal Court (ATRC).

The ATRC was created as the result of the Anti-Terrorism and Effective Death Penalty Act of 1996, passed after the bombing of the Federal building in Oklahoma City. That law amended the Immigration and Nationality Act to create Title V of the INA and the special removal court and proceedings to be held by the court. Those proceedings allow, under very limited and highly reviewed circumstances, for the removal (deportation) of alien terrorist suspects based upon the Government�s presentation of classified evidence to the special court.

The court itself is composed of five US District Court Judges selected by the Chief Justice of the United States, and sits in Washington, DC. All court proceedings are held in Washington, DC. The proceedings, by statute, require the review by the highest levels of the Department of Justice�literally up to the Attorney General�before a suspect is arrested and referred to the court. In some aspects, the court might be likened to an immigration deportation version of the FISA court.

The court was created for those rare and special cases where open court criminal or deportation proceedings would jeopardize national security and would not be feasible, and when doing nothing would also not be an option because the alien terrorist suspect would be a known danger, and no other viable �sterile� charges could be made. Essentially, the ATRC was created because, as the Government discovered in the mid-1990s as a result of more aggressive counter-terrorism investigations that involved foreign nationals as targets and cases that also more frequently involved the INS as an investigative partner, the only way to go after at least some of the bad guys was purely with secret evidence that could not be declassified.

Unfortunately, the ATRC has never been used. The Clinton Administration�s DOJ, under Attorney General Janet Reno, oversaw the establishment of the court; but, perennially found reasons not to utilize it. In fact, by the end of the Reno regime, the policies in place to utilize any classified information in immigration removal proceedings, and there were several categories available for that below the ATRC level, were so burdensome that field enforcement personnel avoided the process at all costs.

After the 9/11 attacks, there were hopes the ATRC would be viewed as a viable, albeit notably selective, counter-terrorism tool. It has not been. Note: In the 2000 Presidential campaign, candidate George Bush rallied against the use of �secret evidence� in immigration proceedings�oddly enough, reportedly at the encouragement of accused Palestinian Islamic Jihad supporter Sami Al-Arian in Tampa, Florida. Another Note: Secret NSA electronic intercepts against terror operative aliens within the United States might be just the kind of �secret evidence� the ATRC could use to deport those alien terrorists from the US without jeopardizing National Security. Maybe that was the concept behind the court Congress had in mind when the law was passed and President Clinton signed it in 1996.

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