[1460] in peace2
ACLU Letter to Senate Regarding S.1749, "Enhanced Border Security
daemon@ATHENA.MIT.EDU (Mohammad Mahdian)
Sun Feb 17 20:27:48 2002
Date: Sun, 17 Feb 2002 20:27:21 -0500 (EST)
From: Mohammad Mahdian <mahdian@theory.lcs.mit.edu>
To: peace-list@mit.edu
Message-ID: <Pine.LNX.4.44.0202172027030.15890-200000@anhinga.lcs.mit.edu>
MIME-Version: 1.0
Content-Type: MULTIPART/Mixed; BOUNDARY=------------00BB57E2BF0EA44FEF9E05C0
Content-ID: <Pine.LNX.4.44.0202172027031.15890@anhinga.lcs.mit.edu>
This message is in MIME format. The first part should be readable text,
while the remaining parts are likely unreadable without MIME-aware tools.
Send mail to mime@docserver.cac.washington.edu for more info.
--------------00BB57E2BF0EA44FEF9E05C0
Content-Type: TEXT/PLAIN; CHARSET=US-ASCII
Content-ID: <Pine.LNX.4.44.0202172027032.15890@anhinga.lcs.mit.edu>
---------- Forwarded message ----------
Excerpt:
Scrutiny of Visa Applicants Based on Discriminatory and Arbitrary
Criteria
One provision of the legislation calls for greater scrutiny of visa
applicants in a way that could reinforce arbitrary or
discriminatory treatment, rather than genuine security
needs. Section 306 of the legislation states that no nonimmigrant
visa can be granted to a national of a "state sponsor of terrorism"
unless there is a determination that the individual is not a
security risk.
This provision makes little sense from a security standpoint,
because the list of state sponsors of terrorism is arbitrary as a
guide to whether individual visa applicants are more likely to pose
a security threat. For example, Saudi Arabia, Afghanistan and
Germany are not on the list, even though members of Al Qaeda
operated from those countries. Syria and Cuba are on the list,
although these were not countries identified in a recent report as
containing Al Qaeda members.3 Nor is it good security policy to
assume that only individuals from Arab or Muslim countries pose a
greater risk, since Al Qaeda and other terrorist groups include
many members from countries that are neither Arab nor
Muslim. Indeed, the only suspect to be indicted thus far in
connection with the government's investigation into the terrorist
attacks of September 11 is a national of France. We recommend that
the requirement of an individual security determination be extended
to all applicants for nonimmigrant visas or that section 306 be
deleted.
full text below:
http://www.aclu.org/congress/l121701a.html
--------------00BB57E2BF0EA44FEF9E05C0
Content-Type: TEXT/HTML; CHARSET=iso-8859-1; NAME="l121701a.html"
Content-Transfer-Encoding: QUOTED-PRINTABLE
Content-ID: <Pine.LNX.4.44.0202172025421.15890@anhinga.lcs.mit.edu>
Content-Description:
Content-Disposition: INLINE; FILENAME="l121701a.html"
<html>
<head>
<title>December 17, 2001: Letter to Senate Regarding S. 1749, "Enhanced =
Border Security and Visa Entry Reform Act of 2001"</title>
<meta name=3D"keyword" content=3D"american civil liberties union, aclu, c=
ivil liberty, civil liberties, liberty, bill of rights, constitution">
<meta name=3D"description" content=3D"December 17, 2001: Letter to Senate=
Regarding S. 1749, "Enhanced Border Security and Visa Entry Reform Act o=
f 2001"">
</head>
<body bgcolor=3D"#ffffff">
<p><p><p><p>
<center><img src=3D"/graphics/legishdr.gif">
</center>
<P><b>
Re: S. 1749, Enhanced Border Security and Visa Entry Reform Act of 2001
</b><P>
Dear Senator:
<P>
We are writing to provide our views on S. 1749, the Enhanced Border Secur=
ity and Visa Entry Reform Act of 2001.
<P>
The bill contains a number of reasonable efforts to enhance border securi=
ty and reduce the risk that known terrorists obtain entry to the United S=
tates in order to do harm to Americans. The American Civil Liberties Uni=
on (ACLU) remains convinced that creative approaches to border security a=
nd ensuring the integrity of our visa system are possible. We are also c=
onvinced that such efforts need not sacrifice the constitutional rights a=
nd human rights of American citizens and immigrants, or compromise the ab=
ility of refugees to seek asylum in the United States. We applaud the ef=
forts of Senators Kennedy and Brownback, as leaders of the Immigration Su=
bcommittee of the Senate Judiciary Committee, to work on a bipartisan bas=
is to craft legislation that enhances border security while preserving ou=
r fundamental values.
<P>
S. 1749 is a compromise bill which is intended to reconcile the original =
Kennedy-Brownback bill with a competing border security bill.<B><sup><a h=
ref=3D#1>1</a></sup></b> It is intended to enhance the ability of custo=
ms officials, Immigration and Naturalization Service (INS) inspectors and=
Border Patrol agents to identify known terrorists, ensure the integrity =
of visa documents so that such individuals cannot avoid such scrutiny wit=
h false or stolen documents, and implement other common-sense measures to=
plug existing holes in the security of our nation's borders and visa sys=
tem.
<P>
Unfortunately, we are concerned that the legislation still contains signi=
ficant flaws and goes beyond legitimate anti-terrorism needs. As written=
, the legislation could thwart law enforcement efforts if information-sha=
ring mandates are interpreted inflexibly. Additionally, if not properly =
limited, these provisions could compromise the privacy rights of American=
s by creating an infrastructure for a national identification and governm=
ent monitoring system. In addition, a proposed perimeter border security=
plan must be designed so as not to discourage the ability of the world's=
persecuted to seek refuge in the United States. Greater scrutiny of vis=
a applicants should be based on genuine security concerns, and not accord=
ing to arbitrary or discriminatory criteria. =
<P>
We are also troubled by provisions that could effectively limit the abili=
ty of American citizens to receive ideas and information from individuals=
who may hold unpopular or unorthodox political views, but who pose no da=
nger to the safety or security of Americans. Finally, because lookout li=
sts may be expanded under the legislation, we are concerned about how ind=
ividuals who are wrongly identified as terrorists or others on the lookou=
t list could be harassed. =
<P>
These problems could be addressed, we believe, by modest changes set fort=
h below in italics that will have little or no impact on the bill's funda=
mental goal of reducing the danger of terrorism by enhancing border secur=
ity, but would eliminate or at least ameliorate the dangers of unintended=
adverse consequences.
<P><b><U>
Information-Sharing Mandates That Could Undermine Law Enforcement
<P></U></B>
Both Title II and Title III of the bill contain a number of provisions to=
expand information sharing between intelligence and law enforcement, and=
mandate interoperable databases that would contain this information, mat=
ched by names and other identifying information. In particular, section =
201 mandates that federal law enforcement agencies "shall, to the maximum=
extent practicable, share any information with the Department of State a=
nd the Immigration and Naturalization service relevant to the admissibili=
ty and deportability of aliens," consistent with a required plan for such=
information sharing.
<P>
We certainly understand the need for the government to take basic steps t=
o ensure that the appropriate parties have access to information needed t=
o detect and apprehend terrorists at the border and to enforce the immigr=
ation laws. On the other hand, we are concerned that an overzealous appr=
oach to immigration law enforcement targeted at specific communities is n=
ot the right approach in combating terrorism. Such an approach can creat=
e considerable anxiety among the targeted groups, raise racial profiling =
issues, and subject communities to greater INS scrutiny on the basis of t=
heir nonviolent political views and associations. =
<P>
An approach requiring federal law enforcement agencies <I>always</I> to r=
efer individuals who may have immigration problems to INS also has the po=
tential to drive a wedge between federal law enforcement and the very com=
munities whose cooperation is vital to obtaining the information needed t=
o combat the threat of terrorism. The Federal Bureau of Investigation (F=
BI) and other law enforcement agencies may well conclude that, under cert=
ain circumstances, they should not share information about immigration st=
atus with INS during a criminal investigation in order to allay fears and=
encourage voluntary cooperation with law enforcement efforts. =
<P>
We do not believe section 201 is intended by the drafters to be an inflex=
ible mandate that requires federal law enforcement agencies to share info=
rmation with INS about immigration status under any and all circumstances=
=2E However, to ensure that law enforcement has the flexibility it needs=
to conduct effective criminal investigations, this intent should be made=
explicit. <I>For this reason, we recommended adding language making it =
clear that information about immigration status need not be shared if suc=
h sharing of information would interfere with the law enforcement agency'=
s primary mission.</I>
<P><B><U>
Creating the Infrastructure for a National Identification and Monitoring =
System
<P></u></b>
The bill contains a number of provisions concerning requirements for visa=
and other travel documents, and other provisions mandating greater track=
ing of immigrants and visitors. We understand the need for the governmen=
t to take a number of these steps in order to enhance the security and in=
tegrity of the visa system. =
<P>
However, the ACLU vigorously opposes any future expansion of the database=
system beyond its intended purpose. Creating the infrastructure the bil=
l envisions leaves considerable room for the government to expand the sys=
tem. In particular, ACLU opposes the creation of a national identificati=
on system and also opposes imposing additional requirements to carry card=
s or other documents that will lead to greater opportunities for harassme=
nt of people who look foreign or are members of racial minorities. <I>Fo=
r that reason, we recommended adoption of specific language that makes cl=
ear that nothing in the bill authorizes or permits the creation of a nati=
onal identification system. </i>Adding this language will not weaken the=
bill's legitimate purposes of strengthening the security of existing vis=
a and other documents needed to travel to the United States.
<P><B><U>
Protecting the Ability of Refugees to Seek Asylum in the United States
<P></u></b>
Section 401 of the bill authorizes a study to determine the feasibility o=
f a North American Perimeter National Security Program. Such a program i=
s appealing as a security measure, because of the difficulty of applying =
the same security measures to persons entering the country by land as are=
used with persons who arrive on airplanes. Cross-border cooperation is =
important to ensuring that individuals who are known terrorists can be ap=
prehended whether they arrive in Newark, Toronto, or Mexico City.
<P>
On the other hand, the establishment of a perimeter border security progr=
am without appropriate safeguards could have the unintended effect of lim=
iting the ability of refugees to seek asylum in the United States. Under=
current law, arriving individuals who express a credible fear of persecu=
tion or an intention to apply for asylum are entitled to be referred to a=
n interview with an asylum officer and a hearing before an immigration ju=
dge. Immigration and Nationality Act (INA) =A7 235(b). Arriving refugee=
s have often undergone harrowing experiences and are unable fully to expl=
ain their circumstances as they are questioned by INS inspectors who may =
suspect their documents are false or fraudulent. Many genuine refugees h=
ave been returned to the countries they were fleeing possibly placing the=
ir lives in jeopardy.<B><sup><a href=3D#2>2</a></sup></b> =
<P>
The establishment of a border perimeter system could exacerbate these pro=
blems by excluding refugees who are in transit to the United States from =
access to procedures available to them when they arrive at a United State=
s port of entry. Section 401 provides some protection from this problem =
by requiring that countries in which the United States decides to "pre-in=
spect" departing persons must "maintain practices and procedures with res=
pect to asylum seekers" that comply with international law. However, suc=
h procedures could have the effect of ceding our asylum policy to other n=
ations and lead to persons whom we would believe are genuine refugees bei=
ng sent back to face persecution. <I>We recommend that section 401 be st=
rengthened to state affirmatively that the study should determine the imp=
act of establishing a perimeter border security program on the ability of=
refugees to seek asylum in the United States, and that the study recomme=
nd measures to ameliorate any adverse effect on asylum seekers.</i>
<P><B><U>
Scrutiny of Visa Applicants Based on Discriminatory and Arbitrary Criteri=
a
<P></u></b>
One provision of the legislation calls for greater scrutiny of visa appli=
cants in a way that could reinforce arbitrary or discriminatory treatment=
, rather than genuine security needs. Section 306 of the legislation sta=
tes that no nonimmigrant visa can be granted to a national of a "state sp=
onsor of terrorism" unless there is a determination that the individual i=
s not a security risk. =
<P>
This provision makes little sense from a security standpoint, because the=
list of state sponsors of terrorism is arbitrary as a guide to whether i=
ndividual visa applicants are more likely to pose a security threat. For=
example, Saudi Arabia, Afghanistan and Germany are not on the list, even=
though members of Al Qaeda operated from those countries. Syria and Cub=
a are on the list, although these were not countries identified in a rece=
nt report as containing Al Qaeda members.<B><sup><a href=3D#3>3</a></sup>=
</b> Nor is it good security policy to assume that only individuals fro=
m Arab or Muslim countries pose a greater risk, since Al Qaeda and other =
terrorist groups include many members from countries that are neither Ara=
b nor Muslim. Indeed, the only suspect to be indicted thus far in connec=
tion with the government's investigation into the terrorist attacks of Se=
ptember 11 is a national of France. <I>We recommend that the requirement=
of an individual security determination be extended to all applicants fo=
r nonimmigrant visas or that section 306 be deleted.</i>
<P><B></u>
First Amendment Concerns
<P></u></b>
Section 304 mandates the establishment of "terrorist lookout committees" =
in each United States embassy, which must meet regularly and whose purpos=
e is to "identify potential terrorists and to develop information on thos=
e individuals . . . ." This provision is problematic because it could cr=
eate bureaucratic pressure on embassy personnel to add names to a lookout=
list even where there is no evidence the individual poses any danger to =
the safety or security of Americans, and provides a ready means for punis=
hing academics or others whose views are unpopular with the United States=
government but who have never been involved with any violent activity. =
Blacklisting on such a basis would deprive Americans of the ability to he=
ar and learn about the views of others in the world, thus interfering wit=
h the fundamental First Amendment freedoms of American citizens.
<P>
Of course, known terrorists or others who genuinely pose a security threa=
t should be denied entry into the United States. However, a legislative =
mandate that requires the regular meeting of a special committee creates =
an administrative burden, which may or may not be the best use of the emb=
assy staff's time, and invites mischief because of the potential for abus=
e. <I>We recommend that section 304 be deleted, or, in the alternative, =
that language be added making clear that the lookout committee may not re=
commend the placement of an individual on the list on the basis of race, =
religious belief or political opinion.</I>
<P><B><U>
Erroneous Lookout List Correction
<P></u></b>
Finally, the bill as a whole is designed to ensure that known terrorists =
or others who pose a danger to Americans are listed on the government's i=
mproved data systems. Section 202 of the bill is designed to ensure that=
variations in name formats and spelling do not frustrate the purpose of =
the system. These provisions should help ameliorate a significant proble=
m of totally innocent individuals being harassed because they have a name=
which is the same or similar to that of a terrorist suspect who is on a =
government lookout list. =
<P>
However, there is still no statutory mechanism to handle these recurring =
problems. Without compromising any sensitive information, it should be p=
ossible for an individual whose name is similar to that of a known fugiti=
ve to avoid recurring harassment when they seek admission to the United S=
tates. <I>For this reason, we recommend that the report mandated by sect=
ion 201(b) recommend ways to ameliorate this problem.</i>
<P><B><U>
Conclusion
<P></u></b>
In the wake of the September 11 attacks, consular officials, INS inspecto=
rs and Border Patrol agents are working harder than ever to apprehend kno=
wn terrorists and prevent future attacks. Yet as the government takes st=
eps to enhance border security, as in other anti-terrorism policies, it m=
ust seek to ensure that such steps provide maximum effectiveness while mi=
nimizing any adverse effects on civil liberties and human rights. The in=
corporation of the changes discussed above would ensure that border secur=
ity legislation will meet that test.
<P>
Sincerely,
<P>
Laura W. Murphy<BR>
Director, ACLU Washington National Office
<P>
Timothy H. Edgar<BR>
ACLU Legislative Counsel
<P> =
<hr width=3D"75%">
<P align=3D"center"> <b>ENDNOTES</b> =
<P> <a name=3D"1"></A><b>1</b><b> </b>- These earlier bills include =
S. 1618, the Enhanced Border Security Act of 2001, sponsored by Senators =
Edward M. Kennedy (D-MA) and Sam Brownback (R-KS) and S. 1627, the Visa E=
ntry Reform Act of 2001, sponsored by Senators Dianne Feinstein (D-CA) an=
d Jon Kyl (R-AZ)
<P> <a name=3D"2"></A><b>2</b><b> </b>- These concerns were the subje=
ct of a Senate hearing that heard from human rights organizations, a numb=
er of harrowing stories from refugees, and the author of a major study on=
expedited removal, who concluded that a very large number of genuine ref=
ugees are turned away each year. See An Overview of Asylum Policy: Hea=
ring Before the Immigration Subcommittee of the Senate Judiciary Committe=
e, 107th Cong. (May 3, 2001).
<P> <a name=3D"3"></A><b>3</b><b> </b>- Kenneth Katzman, Terrorism: Ne=
ar Eastern Groups and State Sponsors, CRS Report to Congress Sept. 10, 20=
01. =
=
<P> =
<center>
<p><font face=3D"Helvetica, Arial" size=3D"-1"><a href=3D"http://ww=
w.aclu.org/congress/archives.html">[Legislative =
Archives]</a> <a href=3D"http://www.aclu.org/congress/issues107.h=
tml">[107th =
Congress Issues]</a> <a href=3D"http://scorecard.aclu.org">[Voter=
s' Guide]</a> =
<a href=3D"http://www.aclu.org/congress">[Congress Overview]</a> =
<a href=3D"http://www.aclu.org/congress/help.html">[How =
to Use this Section]</a></font> </p>
<p><a href=3D"/aclulink/graphics/toolbar.map"><img
src=3D"/aclulink/graphics/toolbar.gif" usemap=3D"#toolbar" ismap=3D"ISMA=
P" border=3D"0"></a> =
</p>
</center>
<center>
<p> </p>
<h6><i><a href=3D"/about/copyright.html">Copyright</a> 2001, The Amer=
ican Civil =
Liberties Union</i><map name=3D"toolbar"> <area shape=3D"rect" href=
=3D"http://www.aclu.org/siteindex.html" coords=3D"0,0,69,21"> =
<area shape=3D"rect" href=3D"http://forms.aclu.org/contribute/con=
tribute.cfm" coords=3D"69,0, 138,21"> =
<area shape=3D"rect" href=3D"http://www.aclu.org/index.html" coor=
ds=3D"138,0,207,21"> =
<area shape=3D"rect" href=3D"http://www.aclu.org/sitesearch.html"=
coords=3D"207,0,276,21"> =
<area shape=3D"rect" href=3D"http://www.aclu.org/feedback.html" c=
oords=3D"276,0,345,21"> =
</map> </h6>
</center>
</body>
</html>
--------------00BB57E2BF0EA44FEF9E05C0--
