Testimony of Legislative Counsel Tim Edgar on S. 1749, The Enhanced Border Security and Visa Entry Reform Act Before the Senate Judiciary Subcommittee on Immigration

Mr. Chairman, Senator Brownback and members of the Subcommittee: 

On behalf of the American Civil Liberties Union (ACLU), a non-partisan, non-profit organization with approximately 300,000 members dedicated to preserving our freedoms as set forth in the Constitution and the Bill of Rights, we welcome this important hearing on S. 1749, the Enhanced Border Security and Visa Entry Reform Act. Since the organization's founding in 1920, the ACLU has been steadfast in defending the rights of everyone in America, both citizens and immigrants. 

The bill contains a number of reasonable efforts to enhance border security and reduce the risk that known terrorists obtain entry to the United States in order to do harm to Americans. The American Civil Liberties Union (ACLU) remains convinced that creative approaches to border security and ensuring the integrity of our visa system are possible. We are also convinced that such efforts need not sacrifice the constitutional rights and human rights of American citizens and immigrants, or compromise the ability of refugees to seek asylum in the United States. We applaud the efforts of Senators Kennedy, Brownback, Feinstein and Kyl, to work on a bipartisan basis to craft legislation that enhances border security while preserving our fundamental values. 

S. 1749 is a compromise bill. It is intended to enhance the ability of customs 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 with false or stolen documents, and implement other common-sense measures to plug existing holes in the security of our nation's borders and visa system. 

While it contains a number of reasonable measures, we are concerned that the legislation could result in unintended consequences unless certain modifications and clarifications are made by the bill's sponsors, and Congress remains vigilant in its oversight role to ensure great care in the bill's implementation. As written, the legislation could thwart law enforcement efforts if information-sharing mandates are interpreted inflexibly. Additionally, the provisions to better monitor foreign visitors could compromise the privacy rights of Americans by creating an infrastructure for a national identification and government monitoring system. 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. Finally, we believe that greater scrutiny of visa applicants should be based on genuine security concerns, and not according to arbitrary or discriminatory criteria. 

We are also troubled by provisions that could effectively limit the ability of American citizens to receive ideas and information from individuals who may hold unpopular or unorthodox political views, but who pose no danger to the safety or security of Americans. Finally, because lookout lists may be expanded under the legislation, we are concerned about how individuals who are wrongly identified as terrorists or others on the lookout list could be harassed. 

These problems could be addressed, we believe, by adopting the recommendations listed below in italics, and by continued Congressional oversight. These recommendations will help minimize unintended consequences even as the security of our border is enhanced. Security and liberty need not be at adds. 

Information-Sharing Mandates Should Be Implemented With Care to Avoid Undermining Law Enforcement 

Both Title II and Title III of the bill contain a number of provisions to expand information sharing concerning foreign nationals between intelligence and law enforcement, and mandate interoperable databases that would contain this information, matched by names and other identifying information. In particular, section 201 mandates that specified federal law enforcement agencies "shall, to the maximum extent practicable, share any information with the Department of State and the Immigration and Naturalization service relevant to the admissibility and deportability of aliens," consistent with a required plan for such information sharing. Importantly, this provision does not require information sharing between local and state law enforcement agencies and the INS, an ill-advised plan that is opposed by both civil rights and civil liberties advocates and by many in law enforcement. 

We certainly understand the need for the government to take basic steps to ensure that the appropriate parties have access to information needed to detect and apprehend terrorists or other dangerous individuals at the border and to enforce the immigration laws. On the other hand, we are concerned that an overzealous approach to immigration law enforcement targeted at specific communities is not the right approach in combating terrorism. Such an approach can create considerable anxiety among the targeted groups, raise racial profiling issues, and subject communities to greater INS scrutiny on the basis of their nonviolent political views and associations. 

An approach requiring federal law enforcement agencies always to refer individuals who may have immigration problems to INS also has the potential to drive a wedge between federal law enforcement and the very communities whose cooperation is vital to obtaining the information needed to combat the threat of terrorism. The Federal Bureau of Investigation (FBI) and other law enforcement agencies may well conclude that, under certain circumstances, they should not share information about immigration status with INS during a criminal investigation in order to allay fears and encourage voluntary cooperation with law enforcement efforts. 

We do not believe section 201 is intended by the drafters to be an inflexible mandate that requires federal law enforcement agencies to share information with INS about immigration status under any and all circumstances. However, to ensure that law enforcement has the flexibility it needs to conduct effective criminal investigations, this intent should be made explicit. For this reason, we recommended the sponsors of the bill make it clear that information about immigration status need not be shared if such sharing of information would interfere with the law enforcement agency's primary mission. 

Creating the Infrastructure for a National Identification and Monitoring System 

The bill contains a number of provisions concerning biometric identifiers and other requirements for visa and other travel documents, and other provisions mandating greater tracking of immigrants and visitors. We understand the need for the government to take a number of these steps in order to enhance the security and integrity of the visa system. 

However, the ACLU vigorously opposes any future expansion of the database system beyond its intended purpose. Creating the infrastructure the bill envisions leaves considerable room for the government to expand the system. In particular, ACLU opposes the creation of a national identification system and also opposes imposing additional requirements to carry cards or other documents that will lead to greater opportunities for harassment of people who look foreign or are members of racial minorities. For that reason, we recommend that the sponsors of the bill make clear that nothing in the bill authorizes or permits the creation of a national identification system. 

Protecting the Ability of Refugees to Seek Asylum in the United States 

Section 401 of the bill authorizes a study to determine the feasibility of a North American Perimeter National Security Program. Such a program is 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 apprehended whether they arrive in Newark, Toronto, or Mexico City. 

On the other hand, the establishment of a perimeter border security program without appropriate safeguards could have the unintended effect of limiting the ability of legitimate refugees and asylum-seekers to seek haven in the United States. Under current law, arriving individuals who express a credible fear of persecution or an intention to apply for asylum are entitled to be referred to an interview with an asylum officer and a hearing before an immigration judge. Immigration and Nationality Act (INA) § 235(b). Arriving refugees have often undergone harrowing experiences and are unable fully to explain their circumstances as they are questioned by INS inspectors who may suspect their documents are false or fraudulent. Many genuine refugees have been returned to the countries they were fleeing, possibly placing their lives in jeopardy. 

The establishment of a border perimeter system could exacerbate these problems even further by excluding refugees who are in transit to the United States from access to procedures available to them when they arrive at a United States port of entry. Section 401 addresses this problem by requiring that countries in which the United States decides to "pre-inspect" departing persons must "maintain practices and procedures with respect to asylum seekers" that comply with international law. However, such a solution could have the effect of ceding our asylum policy to other nations and lead to persons whom we would believe are genuine refugees being sent back to face persecution. We recommend that the study mandated by the legislation should not only examine Canadian and Mexican laws concerning asylum but also determine the practical impact of establishing a perimeter border security program on the ability of refugees to seek asylum in the United States, and that the study recommend measures to ameliorate any adverse effect on asylum seekers. 

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 of state sponsors, even though members of Al Qaeda operate 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. Nor is it good security policy to assume that only individuals from Arab or Muslim countries pose a 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 section 306 be deleted, and that security determinations for applicants for nonimmigrant visas be conducted on a nondiscriminatory basis. 

First Amendment Concerns  

Section 304 mandates the establishment of "terrorist lookout committees" in each United States embassy, which must meet regularly and whose purpose is to "identify potential terrorists and to develop information on those individuals . . . ." This provision is problematic because it could create 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 punishing 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 hear and learn about the views of others in the world, thus interfering with the fundamental First Amendment freedoms of American citizens. 

Of course, known terrorists or others who genuinely pose a security threat 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 embassy staff's time, and invites mischief because of the potential for abuse. We recommend the sponsors of the bill make clear that the lookout committee may not recommend the placement of an individual on the list on the basis of race, religious belief or political opinion. 

Erroneous Lookout List Correction 

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 improved 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 recurring problem of entirely 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. 

However, there is still no formal mechanism to handle these recurring problems. Without compromising any sensitive information, it should be possible for an individual whose name is similar to that of a known fugitive to avoid recurring harassment when they seek admission to the United States. For this reason, we recommend that the report mandated by section 201(b) recommend ways to ameliorate this problem. 

Conclusion  

In the wake of the September 11 attacks, consular officials, INS inspectors and Border Patrol agents are working harder than ever to apprehend known terrorists and prevent future attacks. Yet as the government takes steps to enhance border security, as in other anti-terrorism policies, it must seek to ensure that such steps provide maximum effectiveness while minimizing any adverse effects on civil liberties and human rights. The incorporation of the clarifications and changes discussed above, careful implementation, and continued Congressional oversight will help ensure that the Enhanced Border Security and Visa Entry Reform Act will meet that test.