- The Washington Times - Thursday, May 12, 2005

After spending 15 months devoted to figuring out how the September 11, 2001, terrorists conducted their travel operation into the United States so easily, it is clear to me immigration issues require new thinking.

We must meet critical needs in our border system that have left it far below par with what it needs to function. Congress and the administration must act swiftly to supply and deploy such resources.

But in so doing, it is incumbent upon our leadership to think longer-term, and bigger, about what both the terms immigration and border security really mean. Although we continue to shy away as a nation, we must tackle the mess created by political neglect and disdain that has plagued our immigration system too long. The stakes are too high not to.

Time away from September 11 cannot deplete wariness about terrorist travel. My studies at the September 11 Commission and elsewhere are replete with examples of foreign terrorists planning their attempts to enter and stay in the United States based on a relatively sophisticated understanding of our border system. Terrorists will use any infiltration tactic if it works, from hiding in a ship’s hull or car trunk, to fraudulently seeking legitimate U.S. visas or passports.

These terrorists do not just represent al Qaeda; Hamas and Hezbollah and lesser-known terrorist organization operatives also engage in all varieties of immigration fraud.

Once in the United States, terrorists seek legal status. They resist removal by use of sham marriages, claims of political asylum and applications for naturalization. They take advantage of amnesty and temporary worker programs. One terrorist even managed to stay in the United States when a spouse won the visa lottery. They seek U.S. and state-issued identifications to establish themselves in communities and travel more easily. Wherever a vulnerability exists — from visa issuance to admissions standards at ports of entry to immigration benefits adjudications — terrorists take advantage of it.

Terrorists move throughout our border system in a continuum, taking advantage of every legal and illegal means possible.

However, our current border system is less reflective of that continuum now than it was before September 11, 2001. Before then, the seven elements of our immigration system (visa issuance; inspections; marine and border patrol; immigration agents, courts and benefits adjudicators) were divided among three departments and three agencies. Today, those elements are split among three departments and six agencies. To add to the confusion, immigration enforcement and customs were merged and then split in a way that makes little practical sense.

To counter terrorist travel, all elements of our complicated border apparatus must be brought to bear. Under the current construction of the Department of Homeland Security, I do not believe we can have fully effective border security.

The issue is not simply whether we should merge those in immigration who work on our borders (Customs and Border Protection) with those who conduct immigration and customs enforcement on the interior (Immigration and Customs Enforcement). While a merger will solve some resource allocation and turf issues, this debate fails to address the underlying problems of our immigration system.

The crux of the current problem with DHS border agencies is that after September 11, 2001, lawmakers and the administration hurried with a solution, applying pre-September 11 solutions where economic security was the priority to a changed world where national security is the priority.

To be fair, there was little understanding at the time that the entire immigration system has a role to play in national security. However, that is no longer an excuse.

In addition, we failed to recognize that fragmenting and further burying border functions at DHS would not solve the underlying problems of our immigration system. They include:

(1) Lack of commitment to enforcing immigration law. Not only do the complexities and gray areas of immigration law and lack of standard operating procedures make it difficult to do so, but enforcing the law is nearly impossible where strong special interests with diametrically opposed viewpoints prevent forward momentum. We must rise above special interests, and provide the United States with real border security.

(2) Critical intelligence on terrorist travel indicators still is not being declassified and distributed to frontline officers 31/2 years after September 11. One specific indicator present on the five passports used by three September 11 hijackers, is still not known to frontline officers today. Worse still, very few immigration personnel have the security clearances to acquire critical classified information collected on terrorist travel.

(3) There is a dearth of overarching policy where rules, guidelines and resources are allocated to encourage legal and discourage illegal immigration. Time and again, we have often (not always) failed to give our border system the leadership expertise it deserves and desperately needs. An adequate supportive departmental structure has never existed.

In today’s world, every border system element must be viewed primarily for its enforcement function and application of the rule of law; only then will we infuse the system with the integrity to deter terrorist and illegal entry and encourage legal entry.

With better tools our dedicated frontline officers can help take our conversations about border security out of rhetoric and into reality.

Janice Kephart is a former counsel to the September 11 Commission and an author of “September 11 and Terrorist Travel, a Staff Report of the National Commission on Terrorist Attacks Upon the United States.”

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