By Stephen Yale-Loehr*

As the third anniversary of the September 11, 2001 terrorist attacks approaches, it is useful to look back. Since those attacks the U.S. government has used immigration laws and procedures as a major tool in the fight against terrorism. Many of the immigration actions taken have been controversial. The Migration Policy Institute (MPI), a major immigration think tank in Washington, DC, decided to investigate the impact of those actions on domestic security, individual liberties, and national cohesion.

MPI recently released its report. I am one of the co-authors. It summarizes the experiences of the over 1,200 noncitizens detained after September 11 and analyzes the government’s post-September 11 immigration measures. The full report can be ordered at http://www.migrationpolicy.org/pubs/Americas_Challenge.php

We found that:

The U.S. government overemphasized the use of the immigration system;

• As an antiterrorism measure, immigration enforcement is of limited effectiveness; and
• Arresting a large number of non-citizens on grounds not related to domestic security only gives the nation a false sense of security.

America’s challenge is to meet new security demands while defending and strengthening the civil liberties and national unity that contribute to our strength as a nation. The framework that should guide the nexus between immigration policy and counterterrorism should center on the following:

• Mobilizing intelligence and information capabilities: September 11 demonstrated the need to dramatically improve the nation’s intelligence capabilities. The immigration system captures voluminous amounts of data that can be important in “connecting the dots” about individuals under investigation. But for this to be effective, information from visa and immigration data systems must be fully linked to establish complete immigration histories of visitors and residents, and government agencies must greatly improve their information-sharing and their systems for maintaining immigration watch lists.
• Protecting the security of air, land, and sea borders and beyond: Border enforcement must permit vast numbers of legitimate crossings while identifying and stopping a very small, but potentially lethal, number of wrongdoers. This calls for new systems, infrastructure, and policies rooted in risk management principles that identify reliable people and traffic, so that enforcement officials can concentrate on unknown and high-risk travelers that may constitute security threats.
• Safeguarding essential elements of due process in immigration procedures: While immigration law can be a valuable asset in the war against terrorism, its use cannot serve as a pretext for avoiding due process. Detentions for immigration violations should be subject to time limits. Actions like closing immigration hearings to the public, using classified information in proceedings, and detaining people after final determinations of their cases should be allowed only on a case-by-case basis and only with judicial authorization. And individuals detained for immigration violations, who do not now enjoy the right to government-appointed counsel because immigration proceedings are civil matters, should be granted that right when immigration charges result in detention.
• Engaging Arab- and Muslim-American communities: It is crucial for law enforcement to engage Arab- and Muslim-American communities as it works to identify terrorism-related conspiracies, recruitment, and financial networks. This requires cultivating new relationships and building trust. The government should also embrace these communities as bridges of understanding to societies and peoples around the world who are deeply alienated from the United States.

Immigration strategies grounded in this framework will make us safer and can be designed to respect civil liberties and uphold constitutional standards. They also recognize, strengthen, and use the advantage Arab and Muslim immigrant communities offer the United States in advancing its long-term domestic and foreign policy interests.

Instead, by targeting and alienating these communities, immigration actions since September 11 have deepened the perception abroad that America is anti-Muslim and that its principles are hypocritical. This strengthens the voices of radicals in their drive to recruit followers and expand influence, at the expense of moderates and others more sympathetic to Western philosophies and goals. Thus, in the name of buttressing security, current U.S. immigration policy may be making us more vulnerable to terrorism.

In the post-September 11 era, immigration policy must be part of a new security system in which the measures we take to protect ourselves also help us win the war for hearts and minds around the world.

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* Stephen Yale-Loehr (syl@millermayer.com) practices law at Miller Mayer, LLP (http://www.millermayer.com/) in Ithaca, NY. He also teaches immigration law at Cornell Law School.