The terrorist attacks of September 11, 2001, which were perpetrated by foreign nationals who were able to obtain temporary visas and gain entry into the United States, alerted the U.S. public and policymakers alike to the role that travel, border, and immigration policy must play in any national security strategy. In the wake of the attacks, deterring and detecting terrorist travel quickly became conflated with immigration policy as the chosen means of strengthening national security against terrorist entry.
This redefined priority led to major structural changes to the institutions governing the U.S. immigration system and sweeping technological advances in border, travel, and immigration management.
Yet creating policies that simultaneously advance individual freedom of movement, meet the demand for legal migration, ensure the rule of law in global mobility channels, and address security risks arising from global movement remains a challenge. More to the point, viewing these goals as complementary would spur efforts to craft immigration policy that takes account of security needs while protecting the core values of human rights and civil liberties.
The rapid build-up of security-focused immigration policies over the past decade has led some experts to question whether the recent wave of security measures adequately reflects the historical purpose of U.S. immigration policy — to promote legal migration to advance economic competitiveness, family unity, and humanitarian principles.
In this era of globalization, there is a related and equally important strategic need to uphold individual economic opportunity and personal choice exercised through freedom of movement while maximizing people's security against risks due to global mobility.
It may now prove useful to recast the challenge from one of balancing national security and facilitating lawful immigration and travel to that of "securing human mobility." This rubric encompasses the need to advance freedom and support democratic choices about migration while also ensuring homeland and individual security with respect to travel, migration, and borders.
Strategies supporting this framework include efforts to act against terrorists and criminals; ensure the integrity and resilience of mobility infrastructure, including by providing redress for persons incorrectly placed on watch lists; and prevent dangerous, forced, and illegal migration.
About Susan Ginsburg
This article will provide an overview of how the priorities of U.S. immigration policy have changed as a result of 9/11, and explain how immigration-related U.S. institutions and technology have accommodated the heightened emphasis on national security. It will also discuss the limitations of using immigration policy tools to supply homeland security, and the complexities of protecting people's ability to travel and migrate in a world in which people and nations face asymmetric and catastrophic risks.
Changes in U.S. Immigration Policy as a Result of the 9/11 Attacks
Prior to the attacks of September 11, the U.S. border management and immigration enforcement regime focused some attention on counterterrorism elements, but sought primarily to admit lawfully those persons approved to reside permanently in the United States or likely to depart after a designated period of stay, remove unauthorized immigrants, and deter further illegal immigration.
The Immigration and Naturalization Service (INS) issued immigrant and employment visas, enforced immigration laws along and within the country's borders, and administered immigration benefits, while the Department of State (DOS) adjudicated temporary visa applications at U.S. consulates abroad. The priorities and practices of these agencies — typically the facilitation of visitor and work visas as a means of bolstering the economy and supporting foreign policy — reflected the main goals of U.S. immigration policy at that time.
The terrorists who carried out the attacks on 9/11 took advantage of gaps in U.S. immigration rules and policy by effectively exploiting legal channels by means of deception in order to gain entry into the United States. By providing false information on visa applications and/or presenting illegally altered passports, the 19 hijackers were granted 22 out of the 23 visas for which they applied and 9/11 conspirators were able to enter the United State 33 times (having been denied entry only a single time) over the course of 21 months.
The methods used by these terrorists to plan and execute the attacks awakened policymakers to the role that travel, border, and immigration policy must play in any counterterrorism strategy. Protecting national security — namely, preventing terrorist attacks — quickly became the paramount objective of U.S. immigration policy, overwhelming the historical interest in lawful travel and migration.
Just over a year after the attacks, Congress passed legislation calling for major changes to the institutional framework governing migration. The Homeland Security Act of 2002 established the Department of Homeland Security (DHS), which subsumed the former INS's responsibilities.
Immigration-related organizations under the DHS umbrella include Customs and Border Protection (CBP), which is responsible for border management; Immigration and Customs Enforcement (ICE), which enforces immigration laws in the interior of the United States; and U.S. Citizenship and Immigration Services (USCIS), which administers immigration benefits.
Despite recommendations to grant exclusive authority for issuing visas to DHS, the law ultimately reaffirmed DOS's visa issuance authority abroad but authorized DHS to direct policy related to visa issuance.
The stated mission of DHS is to "prevent and deter terrorist attacks and protect against and respond to threats and hazards to the nation" in order to "lead the unified national effort to secure America." The agency is part of a larger network of U.S. government agencies working to provide homeland security through counterterrorism and other efforts.
Also in 2002, the National Commission on Terrorist Attacks Upon the United States (the "9/11 Commission") was created to pinpoint the policy and operational weaknesses exploited by the 9/11 terrorists and to offer guidance on how to prevent future attacks.
The Report on Terrorist Attacks Upon the United States (the 9/11 Commission Report) underscored the need to prevent terrorist travel and provide for terrorism-related border security and immigration enforcement, including through reliable identity documents and security screening. A separate monograph released by the commission's staff provided additional detail about terrorist travel.
Current Trends in Using Immigration Strategies to Promote National Security
The U.S. immigration system relies primarily on immigration enforcement and border management strategies to prevent terrorist travel and illegal cross-border movement. These efforts are ultimately designed to strengthen the integrity of U.S. borders and uphold immigration laws.
The current administration's interior immigration enforcement strategy prioritizes the apprehension of the most dangerous unauthorized immigrants, including persons convicted of crimes, those deemed threats to national security, and fugitives. Most public and congressional discourse surrounding how U.S. immigration policies can provide for homeland security, however, has focused on securing the country's borders.
Border management strategies have aimed both to gain operational control over the physical territorial borders — especially the United States-Mexico border — and to control the flow of people virtually by "pushing the borders out" through the use of pre-arrival or pre-travel screening mechanisms that rely heavily on the use of information and other technology and international cooperation.
One prominent example of the trend toward using technology in physical border management is SBInet: a "virtual fence" consisting of an integrated system of unmanned aerial vehicles, sensors, cameras, and other technological features. The project was pursued for five years between 2005 and 2010, but DHS canceled it in January 2011 after numerous design oversights and chronic delays in construction had pushed the cost to the administration to $1 billion. Although SBInet was cancelled prematurely, however, the strategic use of proven technologies in border control remains a priority.
As plans to secure territorial borders have developed over the past decade, budgets for immigration and border management technology and personnel have risen considerably. Between fiscal year (FY) 2005 and FY 2010, the CBP budget for border security between ports of entry more than doubled, increasing from about $1.6 billion to roughly $3.5 billion, and the budget for border security at ports of entry increased by 63 percent from nearly $1.7 billion to $2.7 billion. During this same five-year period, the number of border patrol agents nearly doubled from 11,156 in FY 2005 to 20,500 in FY 2010.
The movement to push U.S. borders out has focused on introducing immigration controls before an individual actually reaches a U.S. port of entry. Efforts to push out the borders constitute a deepening form of international cooperation and are characterized by the collection, sharing, and processing of traveler data; increasingly rigorous efforts to verify identity and exchange identity information through the use of biometric tools such as fingerprinting; and new agreements and entities that promote international cooperation in terrorist, criminal, and lawful movement.
Data-sharing agreements between the United States and the European Union represent the most broadly-based form of official international cooperation to date for identifying security threats and preventing them from accessing mobility channels. The EU-U.S. Passenger Name Record (PNR) Agreement — the first iteration of which was signed in 2004 — is the most developed information-sharing agreement between the United States and the European Union that deals specifically and exclusively with travel.
The agreement governs the use of the detailed passenger data contained in PNRs, which are created by commercial airlines from information given by passengers on transatlantic flights and transferred to governments attempting to determine which travelers might pose a security risk. PNRs contain unverified traveler information ranging from name and address to in-flight meal options, and can be cross-referenced with data from other sources such as law enforcement agencies.
Current methods for sharing and processing traveler data and the increased emphasis on biometrics represent a shift away from "sorting" travelers solely on the basis of their national origin to sorting travelers according to individual traits and behavior.
Key Challenges in Creating an Opportunity- and Rights-protecting Mobility Regime
Sovereign states have the right to determine who crosses their borders and who does not. Yet it is increasingly the case that the global market drives citizens to travel and migrate, and citizens expect legal regimes to guarantee their right to movement and protect them and the global pathways through which they seek opportunity.
Indeed, globalization highlights the question of whether countries should extend some of the same fundamental rights and freedoms afforded to citizens to those seeking lawful admission. Certainly recent developments in border management, such as the "No Fly" list, affect U.S. nationals and non-nationals alike.
While immigration-related security measures implemented since 9/11 are intended to minimize risk and facilitate lawful travel, some have generated serious concerns about civil liberties and rights issues, and also about security effectiveness. These concerns include issues related to data privacy and profiling, access to judicial redress, and the security of the source identification documents upon which many migration management systems ultimately rely.
Data privacy and protection
Traveler data collection and analysis methods, which focus on individual characteristics and behavior, call for the compilation, sharing, processing, and sometimes retention of large amounts of personal data. Data protection advocates fear that the ease with which vast amounts of detailed personal information can be shared and stored will lead to the use of data for broader purposes, often called "mission creep."
European policymakers have been especially troubled by the lack of transparency in data usage in the United States and the possibility of long retention periods; factors that make it difficult to determine who will ultimately use collected data and for what purpose.
Concerns that government data about individuals might be used inappropriately are not unfounded. In 2008, for example, several contract workers breached the passport files of then-presidential candidates Hillary Clinton, John McCain, and Barack Obama. The State Department maintains records of some 200 million passport files that contain raw data such as social security numbers and physical descriptors.
In addition, data mining techniques used to create profiles and identify travelers and migrants who might pose a security threat have been criticized for violating the presumption of innocence, due process, and the principles of non-discrimination. Repercussions for innocent and unwitting persons fitting suspicious profiles can range from long-term bars on international travel to being denied entry to a flight.
In December 2010, the United States and European Union announced that negotiations were ongoing for a new PNR agreement that would attempt to balance security with data privacy and protection. The development of an overarching EU-U.S. agreement concerning transatlantic data protection is also underway. These agreements will form a triad with an existing U.S.-EU Mutual Legal Assistance Treaty providing for collaboration in criminal cases, including those relating to illegal movement.
Access to redress
Opportunities to seek redress remain extremely limited for persons erroneously identified as security threats through travel-related data profiling and for persons denied visas at U.S. consulates. Such opportunities are crucial, however, to ensuring that immigration-related security procedures do not impede legitimate and beneficial migration and travel, and more broadly for creating a framework for mobility governed by the rule of law.
In terms of persons whose data is "misused" by EU-U.S. data-sharing practices, EU citizens are not able to seek redress through U.S. courts. Policy analysts have cautioned that the ability to remedy data and profiling errors will become increasingly salient for U.S. citizens and for foreign nationals if and when collected data is authorized for more than one type of use, implicating due process and liberty interests as well as the individual's right to movement. Although interconnected data systems might aid in identifying security threats, such systems would also multiply errors and their consequences.
"Consular absolutism" — an informal term characterizing the judicial doctrine providing that visa denials made by consular officers are largely nonreviewable — prevents potentially eligible visa applicants from appealing U.S. visa denials. Critics of this system believe that it creates a culture of unaccountability at U.S. consulates and that it arbitrarily prevents people from travel, but proponents argue that adequate safeguards and procedures are already in place, including supervisory review of visa decisions, and that any other system would be prohibitively expensive. Denied applicants may reapply for a visa, albeit with the understanding that it will not receive a de novo review.
Securing source documents
As data-sharing and processing systems and the agreements that govern them become increasingly complex and nimble, their ability to distinguish and prevent security threats will depend on the legitimacy and security of source documents used to establish identity.
Strengthening the worldwide integrity of breeder documents — the identification documents through which passports and visas are issued (mainly, birth certificates) — is therefore essential to securing global mobility. Improved identity management could also strengthen the United States' employment-verification system, allowing employers to determine worker eligibility and to be held culpable in the event they employ those persons unauthorized to work.
In the United States, there are no minimum federal security standards for birth certificates that are state-issued. The weak security features of many U.S. birth certificates make them susceptible to counterfeiting or alteration, and the frequent failure to link birth and death records electronically allow a person to assume the identity of someone who is deceased.
But improving the security of birth certificate production and issuance will have implications far beyond the sphere of mobility security. Redesigned birth certificates could pose serious access issues for bona fide U.S. citizens, especially elderly and low-income persons, unless the new certificates remain affordable. If not, U.S. citizens unable to obtain the modified birth certificates could face barriers to voting, obtaining social security cards, proving eligibility for public benefits, establishing work authorization, applying for passports, and acquiring other documents and goods that allow for movement and other forms of societal participation.
The introduction of a national identification (ID) card might relieve states from the burden of improving birth certificate and driver's license security. However, national ID card proposals in the United States have typically been met with widespread resistance from civil liberties groups. Skepticism on practical grounds is also a factor: given the failure to develop a reliable Social Security card system, the prospects for success of other forms of identity cards are uncertain.
Moreover, efforts to secure identity management on a global level run the risk of putting certain developing states with comparatively limited access to technology on unequal footing, disenfranchising stateless persons and certain marginalized minority groups, and failing to address the unique issues presented by dual nationals who are eligible to attain and travel with more than one passport. Indeed, many governments prefer loose identity and cross-border controls in order to manage ethnic tensions and fill labor needs.
Passports are already regulated by international agreement under the auspices of the International Civil Aviation Organization (ICAO). But the demands and challenges of improving global identity management are immense, and will require deepened international cooperation and perhaps a rethinking of the framework and documents that currently govern international travel.
Formulating a Security Strategy that Protects Mobility
The September 11 attacks made clear the need for U.S. homeland security, perhaps better described as "civil security" — the security of people as they go about their daily lives. A viable civil security strategy must include protection against risks arising from people's travel and migration. Yet creating policies that secure and advance the mobility compelled by increased globalization is proving to be a difficult task. The current mobility-security discourse often sets up security as a goal in conflict with — rather than fundamentally in support of — people's mobility.
In a parallel vein, immigration experts argue that allowing security concerns to dominate U.S. immigration policy development might prevent it from realizing its principal goal: protecting legal migration to promote economic growth, family unity and well-being, and humanitarian principles.
The concept of "mobility security" means recognizing the right to movement and enhanced U.S. participation in the global market as the twin reasons why the mitigation of catastrophic risks relating to the movement of people is so important. The adoption of this strategic paradigm, she contends, will lead to greater support for the rule of law in global mobility channels and better security for Americans within the United States and as they travel abroad.
A system based on "securing human mobility" would prioritize both the individual's right to legal travel and enforcement of democratically agreed upon migration policy; vigorously and vigilantly prevent or reduce terrorist and criminal risks and threats; prevent dangerous, forced, and illegal migration, including the travel of major human rights violators; and provide safeguards and redress for law-abiding travelers subject to security screening. It would also better integrate disparate U.S. domestic agencies and other governments to assess and address common risks in travel and migration pathways. Such a framework challenges the assumption that border security and immigration enforcement alone can fulfill the goals of U.S. security policy related to immigration and travel.
Re-envisioning mobility security as a dimension of civil security has implications for migration management at both the domestic and international level.
Within the United States, advancing a mobility security framework in support of freedom of movement and market gains would include establishing new structures and leadership positions to secure and advance human mobility; increasing interagency collaboration on mobility-related counterterrorism and crime control issues; improving document security and visa compliance; and addressing loopholes in privacy laws, among others.
On an international level, some nations have similar requirements for protecting themselves — and U.S. travelers and residents abroad — from emerging migration-related security threats such as international terrorism, transnational crime, and large inflows of unauthorized migrants. These common problems and other risks encountered in travel channels might be addressed through the establishment of an international organization that would enable border and immigration authorities to establish common policies and share goals, outcomes, and best practices for mobility security.
The formation of such an organization would represent a movement towards states actively collaborating to address shared risks in the global mobility pathways that underpin international markets and personal freedom. Any efforts to promote international cooperation concerning mobility security would require participating states to form at least a basic consensus on the goals and outcomes of such joint efforts. Perhaps at the outset this is somewhat less of a challenge with respect to the security aspects of mobility than for the economic regulation of migration, though these two sets of problems are ultimately linked.
One point of agreement among policy analysts is the caution to governments at all levels against becoming dependent upon technology for managing migration, especially those technologies driven by data collection and analysis. Ultimately, technology must be managed, updated to meet new challenges, and abandoned if it does not effectively serve its purpose.
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