- The Washington Times - Wednesday, January 1, 2003

The Washington Post and much of the country's educational establishment seem decidedly unhappy with the FBI for asking colleges and universities to provide personal information on foreign students in this country to determine whether any are terrorist operatives. The Post ran a front-page Christmas Day story suggesting that many schools object to the bureau's request on legal and moral grounds.
The Post noted that two Democratic members of the Senate Judiciary Committee, Sens. Edward Kennedy and Patrick Leahy, sent a December 18 letter to Attorney General John Ashcroft complaining that the "legality of this request is not so clear." According to Messrs. Kennedy and Leahy, the law requires "both a court order and a showing that the request is specifically tailored to a terrorism investigation" before the FBI can gain access to personal data on foreign students.
In essence, the senators seem to be arguing that the FBI cannot (or should not) compel schools to provide information on foreign students, even if they entered this country from terrorism-supporting states like Iran, Iraq, Syria, Libya or Cuba or political breeding grounds for al Qaeda terrorism like Saudi Arabia or Yemen. That is, of course, unless the FBI has already learned that the individuals in question are terrorists, making the background information from such investigations superfluous.
To buttress the Kennedy-Leahy arguments, the Post story pointed to a 1974 law governing the privacy of student records known as the Family Educational Rights and Privacy Act (FERPA), which allowed schools to provide only "directory information," such as names, ages and birthdates, to law-enforcement officers. The law also required that, absent a court order, schools would need to obtain students' consent in order to provide such information to authorities.
The Post article neglected to mention that, in 1996, Congress passed and President Clinton signed into law the Illegal Immigration Reform and Immigrant Responsibility Act (IIRA/IRA). The legislation was passed partly in response to the fact that at least one of the terrorists who blew up the World Trade Center in 1993, killing six people and wounding 1,000, had legally entered on a student visa. IIRA/IRA explicitly stated that FERPA privacy protections do "not apply to aliens" with regard to collection of data from institutions of higher learning. In essence, this makes it clear that collecting information on the 200,000-plus foreign students who enroll in U.S. schools each year does not constitute a legal violation of those students' legal rights.
The IIRA/IRA law required that a new computerized system to track foreign students in this country be in place nationwide by today: January 1, 2003. Unfortunately, it's nowhere near ready. In 1999, when the Immigration and Naturalization Service (INS) published draft regulations to implement the program, it was inundated with complaints from schools, who objected to the requirement that they collect a $95 per student application fee. As a result, Congress and the Clinton administration backed off.
But the problems resulting from the failure to keep track of foreign students in this country certainly didn't go away. Hani Hanjour, a Saudi national who hijacked the plane that crashed into the Pentagon, came here in 2000 on a student visa. And two of the other September 11 hijackers, Mohamed Atta and Marwan al-Shehhi, also received visas to attend flight school from the INS six months after the attacks.
We understand why any school would have legitimate concerns any time the government seeks information on its students. But these concerns are outweighed by the need to prevent future terrorist attacks on the American homeland, a point that some commonsense thinkers in the educational community understand. In comments buried in the 20th and 21st paragraphs (the final two) of the Post story, Sheldon Steinbach, general counsel for the American Council on Education, said he does not see any problem with the FBI request. "Does it cause some psychological discomfort for many people? I'm sure it does," he said. "But we don't see any reason why a school should not be able to honor this request if they choose to…this is part of the new landscape we're all becoming accustomed to since September 11."

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