Cox and Posner's landmark contribution is the first article to have highlighted the challenges of information asymmetry in immigration screening. While Cox and Posner have undoubtedly made a significant contribution, there is a critical oversight in their framework: they do not discuss the importance of targeted ex post mechanisms of screening educational elites. This Article is an attempt to remedy Cox and Posner's omission. Why is this oversight so problematic? In the post-9/11 world, U.S. immigration policy currently finds itself on the horns of a dilemma. While immigrant educational elites are critical to U.S. economic growth, terrorist networks have stepped up their recruiting among well-trained elites.
In visa application processes, screening out terrorism suspects is notoriously complicated, in part because terrorist networks are typically difficult for outsiders to penetrate. Yet, the same cannot be said of elite networks. Indeed, the term "global elite" is meant to reflect precisely the fact that a network of rich, well-educated persons from developing countries exists, and that members of this network are now bona fide members of the Western elite. Social network theory tells us that these elites are typically only a few degrees of separation apart. Yet while a primary goal of immigration law is screening, the United States currently finds itself in the absurd position of screening elite aliens utilizing what this Article terms "insufficiently networked" information. This screening typically occurs with little reference to the closely-knit elite networks whence these aliens originate, even as these networks are far better placed to access information about their members. A primary goal of immigration law should be to leverage these networks to supply the government with early warning signals when U.S. visa recipients display terrorist sympathies.
This Article seeks to mitigate the challenges of information gathering about such elites through an under-utilized and under-theorized sanction, namely, visa revocation. If not as a de jure matter, certainly as a de facto matter, elites typically have access to U.S. immigration privileges that are not easily available to their fellow nationals. Visas are status conveyers, and their loss may undermine business and educational opportunities dear to global elites. In a proposal referred to in shorthand as "a visa to snitch," I impose a "duty to snitch" on elite visa recipients. Each time that a visa holder commits a terrorist act, the authorities would determine which persons in her network knew of her terrorist sympathies and failed to report them. These persons would face visa cancellation, or at a minimum, a reduced prospect of visa renewal, unless they were able to demonstrate that they had good reason not to know or not to report.
INTRODUCTION I. SETTING UP THE THEORETICAL PROBLEM A. Historical Context for Institutional Design Choices: Why Ex Post Screening Has Been Neglected B. Ex Post Screening as the Dominant Strategy C. Cox and Posner's Oversight II. ABDULMUTALLAB A. A Note on Methodology B. Abdulmutallab's Visa Application C. The Situation Then and Now D. Outsourced Diplomacy: Motivating the Right People E. The Screening and Sanctioning Principles F. What Is the Appropriate Sanction? G. Why the Solution Can Work III. WHY DID THE ELDER MUTALLAB SNITCH? A. Background B. Rational Motives C. Norms-based Motives D. What Are the Implications of a Norms-based Analysis? IV. THE DANGERS A. The Dangers of the Imposition of an Affirmative Duty More Generally B. The Dangers of Corruption in Social Networks C. McCarthyite Tendencies: Undermining Social Trust CONCLUSION INTRODUCTION
The legal scholarship has much to say about questions of immigrant "type," namely, which immigrants, among the millions who seek entry, should be admitted to the United States and in what numbers. Yet, while much has been written about these "first-order" questions, (1) the law review literature has little to say about how the Department of Homeland Security (DHS) (2) can ensure that the persons selected actually match its "type" preferences. The scholarship has been neglectful of "second-order" questions of institutional design. (3)
A refreshing exception to this general scholarly inattention is Cox and Posner's The Second Order Structure of Immigration Law. (4) They argue that the principal institutional design choice for any state is between ex ante screening, in which an alien is screened on the basis of pre-entry information and denied entry if she does not fit the state's first-order goals and an ex post system, in which an alien is screened on the basis of post-entry information and deported if she does not meet first-order policy. (5) Cox and Posner's analysis is enormously important: it provides a compelling explanatory framework for many puzzles in immigration law and policy, including the astronomical increase in federal immigration prosecutions. (6) They argue that this prosecutorial trend reflects an increasing institutional bias for ex post as opposed to ex ante screening. (7)
Why this ex post bias? A primary reason offered by Cox and Posner is information asymmetry. (8) Even as Congress dictates particular type preferences, the government is generally not well placed to collect and screen information about potential migrants. For example, a potential migrant will generally know much more about herself, and whether she will abide by U.S. immigration laws, than a consular visa officer. (9) Post-entry screening mitigates the challenges of information asymmetry since the United States is better able to access and screen information about aliens once they are already in the country. (10) Herein lies the primary explanation for the post-entry bias: given minimal access to reliable pre-entry information, DHS expends significant resources "double-checking" that only the right "types" have been admitted to the United States and ferreting out and deporting the "wrong" types, particularly among low-skilled aliens who are often unable to provide reliable pre-entry documentation. (11)
Post 9/11, there is evidence that the United States has also invested significant resources in ferreting out and deporting the "wrong types" even among members of the global elite, (12) namely, the group of persons who occupy the apex of their social order, attend the same coterie of Western universities, and work and reside within one degree of separation of their fellow elites in their countries of origin. (13) DHS appears to have been particularly focused on post-entry screening of elites with scientific credentials such as engineers. (14) The information asymmetry rationale has less explanatory power with respect to elite migrants, since issues of information collection and verification are less acute. (15) In contrast to their low skilled counterparts, elites are well placed to provide tangible proxies that they will be productive and well behaved (such as professional certifications). Moreover, given modern advances in information technology, these proxies may be easily verified even halfway across the globe.
Even as they are generally agnostic on U.S. institutional design choices, Cox and Posner emphasize the reduced explanatory power of the information asymmetry rationale in this context and appear troubled by the disproportionate focus on post-entry screening among educational elites. (16) What is the source of their discomfort? For elites in particular, the economic stakes of institutional design choices appear to be high. Why so? There is a real risk that highly talented but risk-averse persons may be deterred from migrating to the United States. The economic data is unambiguous: the U.S. economy needs educational elites. (17) Microsoft Founder Bill Gates has famously pointed out that Google, Oracle, and Intel were all founded by immigrant computer scientists. (18) Notably, the Blackberry smart phone was also invented by immigrants--in Canada rather than the United States. (19) Gates contends that the United States is falling behind in the competitive race for global talent due partly to an anachronistic immigration system. (20) Cox and Posner appear sensitive to these concerns and are disinclined to augment these challenges. (21) Thus, in the context of the highly skilled, they seem to express a preference for ex ante screening. (22)
Cox and Posner have undoubtedly made a significant contribution; they are the only scholars to have weighed the comparative advantages of ex ante versus ex post approaches. Yet, there is a critical oversight in their framework: they do not discuss the importance of targeted ex post mechanisms of screening the highly skilled. Why is this problematic? While elite immigrants are clearly critical for U.S. economic growth, terrorist networks have also stepped up their recruiting among such elites. Among the many aspirants to global notoriety as bombers, it is the elite and well educated that are most likely to be chosen by Al Qaeda's leadership. (23) Indeed, Al Qaeda's own leadership has been populated by such elites. (24) Among recent terror attempts, the most highly publicized was that of the Pakistani would-be Times Square bomber, Faisal Shahzad, who was previously a recipient of elite student and professional visas and was undoubtedly a member of the global elite. (25) Profiles of famous terrorism suspects reveal this theme repeating itself. (26) Moreover there is another critical omission in Cox and Posner's analysis: ex ante screening is complicated because elites have resources which allow them to obscure "red flags." Additionally, some persons undergo extreme radicalization only after they receive their visas. For such subjects, ex ante screening would hardly suffice; ex post screening is critical.
Indeed, this was one of the justifications offered for the FBI's large-scale questioning of students and scientists of Middle Eastern origin after...