The Comprehensive Immigration Reform Act
(CIRA, S.2611) before the U.S. Senate is touted by
proponents as a "compromise," combining amnesty for current illegal
immigrants with stepped-up enforcement provisions. Nothing could be
further from the truth. A previously unnoticed provision in this
complicated legislation would disarm America's state and local
police in the war against terrorism.
One of most important
lessons that the United States learned on 9/11 was that state and
local law enforcement can be the difference between an unsuccessful
terrorist plot and a devastating terrorist attack.
Five of the nineteen
hijackers had violated federal immigration laws while they were in
the United States. Amazingly, four of the five had actually been
stopped by local police for speeding. All four terrorists could
have been arrested if the police officers had asked the right
questions and realized that they were illegal aliens.
Police officers across the
country responded by stepping up their efforts to assist the
federal government in making immigration arrests. But CIRA would
stop them from protecting the American public in this way.
The cases of two of the
9/11 hijackers show just how critical a role state and local police
Lebanese terrorist Ziad
Jarrah was at the flight controls of United Airlines Flight 93 when
it crashed in rural Pennsylvania. Jarrah first entered the United
States in June 2000 on a tourist visa. He immediately violated
federal immigration law by taking classes at the Florida Flight
Training Center in Venice, Florida-a violation because he never
applied to change his immigration status from tourist to student.
Jarrah was therefore detainable and removable from the United
States almost from the moment he entered the country.Six months
later, Jarrah committed his second immigration violation when he
overstayed the period he was authorized to remain in the United
States on his tourist visa.
avoided contact with state and local police for more than fourteen
months. However, at 12:09 A.M. on September 9, 2001, just two days
before the attack, he was clocked driving at 90 miles-per-hour in a
65-miles-per-hour zone on Highway 95 in Maryland, 12 miles south of
the Delaware state line. He was traveling from Baltimore to Newark
in order to rendezvous with the other members of his team.
The Maryland trooper did
not know about Jarrah's immigration violations. Had the officer
asked a few questions or simply made a phone call to the federal
government's Law Enforcement Support Center (LESC), which operates
around the clock from Williston, Vermont, he could have arrested
Jarrah. Instead, the trooper issued Jarrah a $270 speeding ticket
and let him go. The ticket would be found in the car's glove
compartment at Newark Airport two days later, left behind when
Jarrah boarded Flight 93.
Saudi Arabian terrorist
Nawaf al Hazmi was the second-in-command of the 9/11 attackers and
a back-up pilot. He entered the United States on a tourist visa in
January 2000 and rented an apartment, where he lived for more than
a year, with fellow hijacker Khalid Almihdhar in San Diego. As with
Jarrah, Hazmi's period of authorized stay expired after six
months-after July 14, 2000, Hazmi was in the United States
illegally. In early 2001, Hazmi moved to Phoenix, Arizona, to join
another 9/11 hijacker, Hani Hanjour.
On April 1, 2001, Hazmi
was stopped for speeding in Oklahoma while traveling cross country
with Hanjour. Had the officer asked Hazmi a few basic questions or
asked to see Hazmi's visa, he might have discovered that Hazmi was
in violation of U.S. immigration law. Once again, the officer could
have detained him but did not. The officer also had the authority
to detain Hanjour, who had entered the country on a student visa
but never showed up for classes.
All of the 9/11 hijackers'
encounters with local law enforcement were missed opportunities of
tragic dimensions. If even one of the police officers had made an
arrest, the terrorist plot might have been unraveled.
In the wake of the
attacks, the Department of Justice announced the conclusion of a
new Office of Legal Counsel (OLC) opinion: state and local police
officers do have the legal authority to arrest any
deportable illegal alien. This announcement did not create any new
authority-the police had possessed it all along. Rather, the
announcement reminded local law enforcement agencies of the crucial
role that they could, and should, play in the war against terrorism
by making immigration arrests.
The OLC opinion affirmed
the conclusion of numerous U.S. Courts of Appeals that states have
the inherent authority to assist the federal government by making
immigration arrests. Moreover, Congress has never acted to
displace, or "preempt," this inherent authority. As the Tenth
Circuit concluded in United States v. Santana-Garcia (2001),
federal law "evinces a clear invitation from Congress for state and
local agencies to participate in the process of enforcing federal
Police departments across
the country responded to the lessons of 9/11 and the OLC opinion by
exercising their inherent arrest authority with renewed
determination. The number of calls to LESC by local police officers
who had arrested illegal aliens nearly doubled, reaching 504,678 in
FY 2005-or 1,383 calls per day, on average. Local police have
become a crucial participant in the enforcement of federal
Disarming Law Enforcement
The Senate's immigration
reform proposal would change all of that. Section 240D would
restrict local police to arresting aliens for criminal
violations of immigration law only, not civil violations.
The results would be disastrous.
All of the hijackers who
committed immigration violations committed civil violations.
Under the bill, police officers would have no power to arrest such
Moreover, as a practical
matter, CIRA would discourage police departments from playing any
role in immigration enforcement. Most police officers (indeed, most
lawyers) do not know which immigration violations are
criminal and which violations are civil. There is no particular
logic to the distinctions. Overstaying a visa (something hijackers
from the Middle East are more likely to do) is a civil violation,
but marriage fraud is a criminal violation. Which one is more
dangerous to national security?
Afraid of arresting the
wrong type of illegal alien-and getting sued as a result-many
police departments will stop helping the federal government
As the country is making
progress in the war against terrorism, the Senate is poised to
unilaterally disarm the men and women on the front line. Sadly,
many senators aren't even aware of the damage they might inflict on
U.S. national security.
W. Kobach is a Professor of Law at the University of
Missouri-Kansas City. During 2001-2003, he served as Counsel to the
U.S. Attorney General. He was the Attorney General's chief advisor
on immigration law.