Globusz^® Publishing 

The Nexus between Immigration Policy and National Security–A Bridge Too Far

Immigration policy has not always been viewed through the lens of national security; rather, this has been largely a post-9/11 phenomenon. Although it may seem difficult to imagine, shortly before September 11, 2001, President Bush was engaged in discussions with Mexican President Vincente Fox regarding a temporary worker program and the potential legalization of the Mexican undocumented population in America.¹⁸⁹ Bilateral U.S.-Mexico talks concerning the relaxation of immigration controls, however, took a political hiatus for many months after the two presidents issued their joint statement in February of 2001.¹⁹⁰ Even before terrorists toppled the Twin Towers and alerted the American people to their own vulnerability, immigration policy captured national security objectives to some degree. In particular, immigration law provided for the exclusion and removal of members of terrorist organizations.¹⁹¹ Caught in the aftermath of 9/11, immigration policy goals became completely subordinated by the Bush administration’s efforts to fight the “War on Terror.”

This was most clearly demonstrated by the abolition of INS and the transfer of its authority and policy objectives to DHS.¹⁹² Over the past two decades, many scholars have questioned the wisdom of combining immigration services and enforcement within the same government agency.¹⁹³ For example, in 1997 the U.S. Commission on Immigration Reform recommended that INS’s enforcement activities be entirely transferred to the Department of Justice (DOJ) via the formation of a “Bureau for Immigration Enforcement.”¹⁹⁴ The Commission noted the inherent conflict between service goals and enforcement objectives, observing how “both compete for limited operational resources and for the time and attention of those responsible for planning, administering, and managing these programs.”¹⁹⁵ Unsurprisingly, DHS’s stated “vision” is to “preserve [American] freedoms” and the Department’s “most important goal is to protect the American people and [their] way of life from terrorism.”¹⁹⁶ Of course, such a unified vision for homeland security is commendable and necessary, but its counterpart law and enforcement measures carry in their wake significant fiscal, social, and psychic costs that should not be overlooked.

The primacy of the goal of enforcement has been intensely reflected in President Bush’s budget proposals. While in FY 2007 he requested $7.8 billion for CBP, $4.7 billion for ICE, and $6.3 billion for the Transportation Security Administration,¹⁹⁷ he only requested $2.0 billion for USCIS.¹⁹⁸ The relative proportions of the budget requests, in and of themselves, provide little information about the funding requirements and successes of the enforcement bureaus and immigration services, respectively. But considering that USCIS still had close to four million pending and backlogged forms as of September of 2005, these figures gain new meaning.¹⁹⁹ Specifically, the bloated budgets of DHS’s enforcement bureaus, which have directly contributed to the militarization of the southwest border, seem to have overshadowed the fiscal requirements of USCIS.

Since 9/11, the investigatory practices of U.S. consular offices have been deeply ingrained in inefficient bureaucratic procedures that have resulted in visa applicants experiencing unprecedented delays in the processing of their petitions. Beginning in 1996, the State Department implemented Visa Mantis security protocols that were to be used to vet visa petitioners.²⁰⁰ These administrative guidelines were originally established in order to inhibit the transfer of arms and “dual-use technology,” as well as to counteract the proliferation of weapons of mass destruction.²⁰¹ Mantis procedures now come in two forms. “Eagle Mantis” procedures can be handled from start to finish by consular offices; however, a more rigorous “Donkey Mantis” security protocol was implemented after 9/11 and demands a large portion of total visa applicants to be cleared by the State Department.²⁰² A “Donkey Mantis” clearance is required for those petitioners who have passports or “who are employed by states designated by the U.S. government as ‘sponsors of terrorism.’”²⁰³

The Chicago Tribune noted in December of 2003 that the FBI reported an “‘explosive increase’ in security ‘name checks’ of all kinds, including 200,000 visa reviews in the [2003] fiscal year.”²⁰⁴ Due to the burgeoning number of security checks on visa applicants, approvals often take an exorbitant amount of time. For instance, “[b]ased on a random sample of Visa Mantis cases for science students and scholars sent from [consular] posts between April and June 2003, GAO found on average it took 67 days for [the] State [Department] to notify the post [of a decision].”²⁰⁵ Part of the reason for the long waiting period was the Visa Condor security advisory opinion (SAO), a type of screening process that came about in 2002 as a result of interagency cooperation. Drawing applicants from twenty-six countries of “security interest” to the U.S., the Visa Condor SAO guides designated travelers through mandatory security checks that are separate from Mantis procedures.²⁰⁶ Importantly, the FBI, State Department, and other relevant agencies revamped SAO protocol as of 2004, subsequently streamlining the visa petition process and reducing the waiting period.²⁰⁷

Similar to other policy areas within the government’s purview, the system for adjudicating visas will always exhibit a tradeoff between liberty and security. America needs to consider what type of message it is sending to foreigners. Screening processes may need to treat people from different countries of origin differently, but the ultimate goal of immigration services is to create efficient and welcoming procedures that adequately comport with many of the needs and desires of individuals from all nations. Although the reconciliation of security and freedom of movement still remains in flux, the American people will not allow this to continue indefinitely. Already, the court of public opinion and increasing economic integration have compelled Congress and the President to reconsider immigration policy.

The ultimate post-9/11 change in the balance between liberty and security came in the form of the highly debated USA PATRIOT Act.²⁰⁸ This law invested broad powers within the President, judiciary and various law enforcement agencies, expanding their ability to monitor, search, and detain foreigners as well as citizens. The PATRIOT Act instituted a system of ethnic profiling that, to a fairly significant extent, has stigmatized the Arab-American community, but the legislation’s effects echo far beyond a single segment of society. Foreigners traveling to the U.S., whether for immigration, tourist, or employment purposes, are particularly affected by the law’s ideological exclusion provisions. The PATRIOT Act adds to the terrorism-related grounds for inadmissibility the ambiguous category of “espousing terrorist activity.”²⁰⁹ Citing Brandenburg v. Ohio, law Professor David Cole reflects upon the recently expanded provision, commenting: “Citizens have a constitutional right to endorse terrorist organizations or terrorist activity, so long as their speech is not intended and likely to produce imminent lawless action.”²¹⁰ The U.S. Bill of Rights delineates an individual’s fundamental entitlement to freedom of speech–a privilege that entails the ability to hold unpopular and even extremely prejudiced opinions. Excluding foreigners based purely upon speech and the tentative implications of political associations is a dangerous game, one that undoubtedly produces many false assumptions and wrongful deportations.

Under the PATRIOT Act, the Attorney General has the power to detain noncitizens indefinitely. If a foreigner is deemed to be a national security risk and subsequently detained for longer than a week, the Attorney General is only required to reexamine if “the individual’s release would threaten national security or endanger some individual or the general public” every six months.²¹¹ Curiously, this provision applies both to foreigners who are in removal proceedings, which can last years, and noncitizens who have already been subject to removal proceedings, even when a judicial authority has ruled that the person cannot be removed.²¹² The Attorney General’s vast power to detain foreigners is all too reminiscent of the U.S. government’s internment of Japanese citizens during World War II.²¹³ This is especially true in light of the fact that more than 1,200 noncitizens have been detained since 9/11, over 46 percent which have spent six years or longer in the U.S.²¹⁴ Furthermore, of those who have been detained, more than half have been held for at least five weeks, and almost nine percent of all detainees were not released for nine months.²¹⁵

Apparently, the civil rights of foreigners are not particularly important to the American government. This is not to indicate that people of varying social locations can never justifiably be treated differently. Unequal treatment can result from a system of rules where an “equal consideration of interests” and human dignity are respected. Requiring noncitizens to submit to some arduous and time consuming security checks could reasonably be supported on national security grounds, but this does not mean that America’s security interests can be used to defend any infringement upon liberty. Some rights can and must trump other rights, and when noncitizens’ entitlement to freedom of speech and due process is pitted against the goals of homeland security, civil liberties win out overall. Expelling people from the country because of their unpopular opinion or detaining a person based upon the cursory investigation and biased authority of the Attorney General contravenes a system of basic rights that the Supreme Court has called “implicit in the concept of ordered liberty.”²¹⁶ Or as David Cole remarks, “The rights of political freedom, due process, and equal protection [...] are part of the minimal set of rights that the world has come to demand of any free society.”²¹⁷ The sacrifice of any one of these rights would unduly trample upon ethical principles that are wholly applicable to all people, irrespective of country of origin.

The tug of war between security and liberty falls into two competing models of immigration policy that Kevin Johnson and Bernard Trujillo refer to as “immigration monism” and “immigration pluralism.”²¹⁸ While immigration monism posits that immigration policy objectives “collapse into the sole goal of national security,” immigration pluralism “appreciates that immigration law and policy serve many goals, none of which has an absolute structural claim to superiority.”²¹⁹ American history has, for the most part, been defined by immigration monism. The entire time period between the Chinese Exclusion Acts of 1882 and the McCarran Walter Act of 1952 was entrenched in immigration monism, complete with nativism and xenophobia. Americans are justifiably weary after the terrorist attacks of September 11, but at no point in time should the U.S. government disregard the interests and basic rights of noncitizens. Post-9/11 policies have been entirely subsumed by homeland security goals, in the process creating a bright line distinction between citizens and foreigners that has marred America’s image abroad.

This dichotomy between “Americans” and “others” seems precariously and oddly situated in a globalized world. Making American policy more amenable to the transnational movements of people does not necessarily mean that the country will become less secure. Liberty and security can be mutually reinforcing, but they will work at cross-purposes so long as the competing claims of various societies remain unbalanced.²²⁰ Unless the U.S. looks outward before it decides how best to satisfy its internal security needs, it will continue to marginalize the interests of foreigners and arouse their spite. In other words, it is high time that the American government accept the ideological supremacy of immigration pluralism.

Whither Multilateralism?

Issues pertaining to security and the transnational movement of people and goods are not unique to the U.S. After September 11, America realized that, if it wanted to bolster homeland security, it would have to cooperate with Canada and Mexico. Both of America’s closest trading partners had learned a similar lesson from 9/11. Each was weary of the possibility for another terrorist attack, and neither wanted to be accused by the U.S. of harboring or assisting the transfer of would-be terrorists.²²¹ Relations between the three countries have age-old historical roots, but in modern times they have primarily manifested themselves in the form of cooperation on anti-terrorism and trade-related endeavors. Since the 1994 implementation of NAFTA, U.S. trade with Canada has almost doubled, equaling over $428 billion in 2004.²²² Over that same period, U.S. trade with Mexico increased more than 165 percent, reaching $268 billion in 2004.²²³ Still, relations between the NAFTA countries over the past decade have not resulted in perfectly efficacious cross-border policies. Both the preeminence of the American economy and domestic security depend upon continued bilateral and multilateral cooperation, which includes better intelligence sharing and mutually agreeable policies to promote the free movement of goods and people.

From the American government’s perspective, diplomatic relations and cooperation with Canada were increasingly important for U.S. security after 9/11 because: “1) it was recognized that some 50 terrorist groups were present and active in Canada, and 2) Canadian immigration and border policies are widely regarded as being lax, especially those concerning refugees and asylum.”²²⁴ America’s concentration of resources at the southern border, while peddled to the general public as progress on the homeland security front, has done little more than intercept harmless migrant laborers. Moreover, it has turned the public’s attention away from the 5,500 miles of land border to the north, a perfect entry point for terrorists. In 2002, Doris Meissner noted the weaknesses of America’s northern border and foretold the future direction of American policy:

I can predict there will be far more focus on Canada. Canada as a gateway for terrorists is very much on the agenda. I hope that we can be reasonable and recognize the folly of attempting to fortify our land border with Canada. More resources directed at the northern border are needed. But ultimately the security issue with Canada must be handled through international cooperation by joining forces to share intelligence, cross designate personnel, treat Canadian airport operations as equivalent to entering the U.S., and comparable measures. That is the direction that we ought to go. It is a direction that envisions North American perimeter security through bilateral and international cooperation and integration as the only sound platform upon which to build public safety and security for us and for our neighbors.²²⁵

Meissner’s appraisal of the post-9/11 American national security dilemma, as seen through the lens of border control, is certainly one of the most cogent on record. While the Bush administration was, in effect, busy targeting migrant laborers from Mexico, Meissner had already successfully defined a grand scheme for border security and international relations.

The foundation for such an integrated system began when Governor Tom Ridge and former Deputy Prime Minister of Canada John Manley signed the “Smart Border Declaration” and its associated thirty point action plan in December of 2001.²²⁶ The action plan was predicated on four pillars: 1) the secure flow of people, 2) the secure flow of goods, 3) secure infrastructure, and 4) information sharing and coordination in the enforcement of these objectives.²²⁷ Some of the agreement’s most successful reforms, most of which have only begun to be implemented, include making immigration databases compatible between the two countries, increased visa policy coordination, the clearance of people and cargo away from the border, and the use of joint resources and teams to reduce redundancy and share information. As Bill Hing comments, “More than anything else, 9/11 demonstrated the need to dramatically improve the nation’s intelligence capabilities.”²²⁸ Border security and immigration controls have a limited role in national security, but so long as the systems that govern immigration remain vulnerable to misuse, America remains equally vulnerable. As a result, the best way for the U.S. to defend itself against the terrorist threat is through better intelligence gathering, information sharing, and international cooperation. In these respects, the U.S.-Canada Smart Border accords have put the U.S. on the path towards constructive reform.

However, this type of extensive cooperation has only been fostered at the northern border. Three months after the U.S.-Canada Smart Border Declaration was enacted, America ratified a similar, twenty-two point “Smart Border” agreement with Mexico that was based on the same four pillars contained within the Canada declaration.²²⁹ But rather than seeking the explicit establishment of cooperative security initiatives, the U.S.-Mexico agreement contained vague language that largely sought to “develop” and “explore” joint projects, especially with regard to those dealing with migration.²³⁰ In other words, while the U.S.-Canada Smart Border accords pursue cooperative efforts that have well-defined, substantive ends, the counterpart U.S.-Mexico agreement is left wanting. America seems more inclined to build a wall along the southern border than to discuss sensible, binational policies that could plausibly thwart terrorism and promote truly free trade (which includes the free movement of labor).

This contradiction between trade and migration has its practical and political origins with the enactment of NAFTA in 1994. While NAFTA provided for increased cross-border movements of goods between the U.S. and Mexico, the issue of labor migration was conspicuously left unaddressed by the agreement.²³¹ Then in March of 2005, the leaders of the NAFTA countries announced the establishment of the Security and Prosperity Partnership of North America (SPP).²³² The SPP was not a legally binding declaration, but it created a trilateral, international framework for cooperation on regional issues related to security and economic prosperity.²³³ However, while the partnership agreement facilitates movement of “the elite North American business class,” it fails to tackle the deeper issue related to the migration of undocumented workers between Mexico and the U.S.²³⁴ Like in the case of NAFTA before it, “SPP negotiators deliberately de-linked labor from the agreement for political reasons, hoping not to forestall progress in other areas.”²³⁵

While America seeks to cure Mexican undocumented migration as if it were a disease, NAFTA has allowed for an unprecedented increase in trade. Between 1986 and 2003, trade between the two countries expanded by a factor of eight, and the number of Mexicans entering the U.S. on business visas more than tripled.²³⁶ Although all three NAFTA countries have become more economically integrated over the last two decades, America has reacted to the issue of Mexican labor migration by militarizing the southwest border and criminalizing the hiring of undocumented workers. The principles of free trade dictate that as countries become more economically integrated, labor markets will become increasingly integrated as well. Or as Massey explains, “In practical if not logical terms, it is impossible to create a single North American market characterized by the free movement of all factors of production except one.”²³⁷

Many are left to wonder why such a paradox still exists in an era defined by globalization and a deep concern for human rights. Kevin Johnson proffers, “For many reasons, most notably history and geography, the trade/migration separation is a false dichotomy in the context of U.S.-Mexico relations. Such issues are deeply interwoven into the fabric of all relations between the two countries.”²³⁸ Many middle and upper class American citizens ascribe to a “not in my backyard” (NIMBY) mentality when it comes to the domestic poor, much less individuals from an economically developing country such as Mexico. Moreover, prejudice against Mexicans has a long and inglorious history in American politics. During the early twentieth century, discrimination against Mexicans was justified with appeals to the pseudo-scientific works of the eugenicists, and later on in the 1920s, it became institutionalized via the National Origins Quota Acts. In modern times it has been concealed within the rhetoric of restrictionist organizations like the Federation for American Immigration Reform (FAIR).²³⁹

It seems that these proponents for stemming the “flood” of “illegal immigration” have forgotten that by transitivity, they are, in a sense, no different from the immigrants of today. More importantly, they have failed to understand that, in order to neutralize the terrorist threat, America must cooperate effectively with both of its neighbors. Part of this cooperation must come in the form of helping Mexico to develop economically, a task which must entail the proliferation of free trade in all of the factors of production, including labor. Once a guest worker program was established, the border patrol could finally concentrate upon apprehending the real enemies to American freedom who attempt to surreptitiously travel across the border. Or in Tamar Jacoby’s words, “Let the [DHS] stop chasing busboys and farmhands and get on with the job we really need it to do: intercepting terrorists and bona fide criminals.”²⁴⁰

The other side of the same coin would include some type of earned legalization program. “Adults who made a willful decision to violate U.S. immigration laws and enter the United States do not deserve a blanket amnesty, but neither do they deserve summary deportation,” comments Massey.²⁴¹ From the standpoint of national security, regularizing undocumented residents, similar to providing for a temporary worker program, would allow DHS to concentrate its resources towards catching real criminals. Currently, while undocumented migrants are guilty of a civil infraction by virtue of their unauthorized border crossing, America’s unrealistic laws have created a vast and exploitative “criminal underworld.”²⁴² This “shadow realm” is dominated by unscrupulous employers, forgers, and smugglers. Without satisfying the twin goals of regularizing the undocumented and instituting some type of generous temporary worker program with Mexico, the political horse trading that Congress calls “comprehensive immigration reform” will remain little more than a farce.