Immigration legislation pursuant to threats to US national security.

• Author: Patel, Ruchir

This article will examine the United States' immigration legislation in the face of threats to national security. Throughout history foreign enemies have threatened the "American way of life," from the Germans in World War I, to the spread of Communism, to the current threat of terrorism. As history has demonstrated, the U.S. has taken drastic measures to protect its citizens. This paper will consider those actions and evaluate the PATRIOT Act's adequacy in resolving the present threat to national security. Further, this paper will propose reforms to certain immigration provisions of the PATRIOT Act.

BACKGROUND

The United States Constitution grants Congress the power to "establish a uniform Rule of Naturalization" (1) and grants the Executive Branch the inherent sovereign authority to regulate immigration. (2) Aliens seeking entrance into the United States have no claim of right; (3) rather admission is a privilege granted by the sovereign nation upon such terms as it prescribes. (4)

The United States relies upon immigration policies to protect itself against subversives. (5) U.S. history includes spies, saboteurs, anarchists, and terrorists as parts of this subversive class, it has feared immigrants who seek to destroy the government rather than strive for the shelter of its freedoms. (6)

The protective immigration policies that the United States has legislated and implemented have been in response to fear, whether it is in response to a physical attack on the country, or an attack on its culture, political beliefs, or freedoms. (7) When immigrants threaten the "American way of life," Americans respond by uniting and displaying a strong sense of nativism. (8) Nativism is a concept deeply rooted in American history, dating as far back as the late 1830's. (9) Nativism is defined as an intense opposition to a specific minority on the ground of its foreign ("un-American") connections. (10) Nativism was the energizing force behind the modern day theory of nationalism. (11) Nativistic activities were evidenced throughout U.S. history, resulting in immigration reform during World War I, World War II, and against the fear of Communism. (12)

HISTORICAL LEGISLATIVE RESPONSE

World War I

During World War I, there was an increased concern over subversives and radical aliens, and legislation against those persons was strengthened. (13) Dissident immigrants were imprisoned for their anti-war campaigns. (14) Under wartime conditions, Congress passed the so-called Anarchists Act of October 16, 1918, which ordered the deportation of alien anarchists residing within the United States and made it a felony punishable by imprisonment for those deported to reenter or attempt to reenter the country. (15) This Act was amended by the June 5, 1920 Act which included in the anarchist class aliens who advocate "the unlawful damage, injury or destruction of property, or sabotage." (16) As an effect of the war and the wartime legislation, there was anti-German sentiment pervading throughout the United States. (17) The Justice Department gathered German aliens into internment camps under the President's summary powers. (18) The total number of arrested aliens rose from 1200 to 6300 by the end of 1918. (19) Further, the regulations governing the remaining Germans were tightened, requiring them to register and "forbidding them to move without official permission." (20)

The climate of repression established during World War I continued against Communists even after the conclusion of the war. (21) In 1919, the U.S. government responded to a politically motivated bombing of Attorney General Palmer's home by rounding up alien members of the two communist parties. (22) Approximately three thousand aliens were held for deportation in response to this threat on the U.S. (23)

World War II

Another example of the U.S. government taking action against potentially threatening immigrants occurred during World War II. (24) The approach of the war gave a strong impetus to establish a system for alien registration. (25) The Alien Registration Act of 1940 dealt with subversion and deportation for numerous offenses as well as registration requirements, including fingerprinting of an alien in advance of issuance of a U.S. visa. (26)

In addition to the Alien Registration Act of 1940, the federal government interned over 110,000 persons, mostly Japanese immigrants. (27) In an executive order delivered on February 19, 1942, President Roosevelt authorized the internment of persons who may have posed a threat to national security or the war effort. (28) This order came as part of a response following an attack on the U.S. by Japanese forces. (29)

Communism

Following World War II, the continued fight against Communism reached its peak in the McCarthy Era. (30) This anti-communist sentiment led to the passage of the McCarran-Walter Act of 1952, which introduced an ideological criterion for admission: immigrants and visitors to the U.S. could be denied entry on the basis of their political ideology (e.g., if they were communists). (31) This Act expanded the definition of the subversive classes that were subject to exclusion and deportation. (32) In essence, it became against national policy to be a member of the Communist Party and to advocate proscribed beliefs. (33)

Present Day Threat: Terrorism

Such examples demonstrate that U.S. historical immigration actions were often in response to a perceived or actual threat by immigrants. (34) Present day immigration legislation stems not from war, or fear of Communism, but from terrorism, one of the threats included in the class of subversives. (35) Terrorism is defined as "the unlawful use of force or violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives." On September 11, 2001, terrorists attacked the United States and killed over 6000 people. Nineteen terrorists hijacked four commercial airlines in the U.S., and used them as bombs by flying two planes into the World Trade Centers, one into the Pentagon, and the fourth crashing into Pennsylvania. (36) All nineteen hijackers were foreigners, and at least sixteen entered the U.S. through ports of entry, with a tourist or student visa; some of those visas having expired before September 11, 2001. (37)

September 11, 2001 highlighted the frightening reality of terrorist threats and the gross inadequacy of the then current immigration system. (38) Though September 11th was the most devastating attack on US soil by a terrorist attack, it was not the first. (39) The U.S. government had prior knowledge and exposure to terrorist attacks as evidenced during the 1995 Oklahoma City bombing, and the nerve gas attack on the Tokyo subway system. (40) These events raised concern and placed increased pressure for government action. Congress responded by legislating the 1996 Antiterrorism and Effective Death Penalty Act, which provided for new definitions and enhanced penalties for terrorist crimes. (41) Congress further enacted the Defense Against Weapons of Mass Destruction Act of 1996 to address threats of biological, chemical, and nuclear weapons. (42) After these base programs were established, the focus was on "refining terrorism preparedness." (43) Reports indicated that the federal agencies' approach to combating terrorism was fragmented with very little coordination and cooperation. (44) Further exacerbating the problem was the fact that the intelligence community and law enforcement had inadequate resources to gather intelligence, infiltrate terrorist groups, and prevent attacks. (45) These reports led Congress to hold hearings on how to rectify the situation, but increased concerns over civil liberties issues resulted in little action. (46) Therefore, prior to September 11th, the problems with the immigration system concerning terrorism were realized but there was no implementation to directly address them. (47)

The September 11th attacks became the catalyst in turning those abstract flaws in "terrorism preparedness" into stringent regulations. The attacks highlighted a major problem in the system of intelligence sharing between the intelligence agencies and law enforcement. These problems ultimately led to the inability of the Intelligence Community to prevent the September 11th attacks. (48) Two of the September 11th terrorists were affiliated with Al-Qaeda, and were under surveillance prior to 9/11 by the CIA. (49) The NSA also independently had knowledge of the terrorists' connections to Al-Qaeda. (50) Despite this critical information, the CIA did not report these findings to watch list databases, such as TIPOFF (51), nor did it directly notify the FBI or the INS in time to prevent their entry into the United States. (52) Coupled with this was the FBI's inability to obtain a search warrant for the computer of accused terrorist Habib Zacarius Massaoui (53), who was known to be a member of al-Qaeda. (54)

The connection between these events is that both could have been prevented if the various intelligence agencies coordinated their actions and shared their respective information.

USA PATRIOT ACT

Intelligence

Current Problem of Information Sharing

The General Accounting Office (GAO) of the federal government recently assessed the "information sharing within and between federal, state and local agencies," and concluded that there existed tremendous communication problems. (55) The GAP reported that each agency (FBI, CIA, NSA, and the other intelligence agencies) had a distinct organizational culture, and there have historically been walls separating their co-existence. (56) Further, the GAP identified three principal problems that the agencies must resolve if they are to succeed in their war against terrorism: fragmentation, technological impediments, and ineffective collaboration. (57) All three of these are illustrated in one specific example...