Proponents of the Senate's comprehensive immigration bill are
attempting to rhetorically recast the massive amnesty proposal as
national security legislation. "It's a matter of our national
security," insisted Senator Ted Kennedy (D-MA), a sponsor of the
legislation. Commerce Secretary Carlos Gutierrez has echoed the
point repeatedly: "This is a national security bill. We are fixing
a national security problem." The legislation, proponents claim,
would encourage or even compel all illegal aliens--terrorists
included--to come forward and reveal their true identities as well
as any criminal or terrorist connections that they may have. In
reality, however, the legislation would actually create a
national security problem by providing new opportunities and
advantages for alien terrorists currently operating on American
The Alien Terrorist Threat
The revelation of the terrorist plot to bomb JFK Airport serves
as a timely reminder that alien terrorists are operating in the
United States. Terrorists are busy thinking of new ways to kill
innocent Americans while the Senate thinks of new ways to grant a
massive amnesty to 12-20 million illegal aliens.
The four JFK terrorists include two nationals of Guyana, one of
Trinidad, and one former Guyanan who was granted U.S. citizenship.
The Fort Dix Islamic terrorists who were arrested in May included
five foreign nationals from Yugoslavia and Jordan. A sixth, from
Turkey, eventually obtained U.S. citizenship. Of the five aliens,
three were illegal aliens who snuck across the southern border
years ago near Brownsville, Texas.
It is a certainty that many more illegal alien terrorists are
quietly at work in the United States. In fiscal year 2005, the
Border Patrol apprehended 3,722 aliens from nations that are
designated state sponsors of terrorism or places in which al-Qaeda
has operated, and for every one alien whom the Border Patrol
apprehended, there were likely three aliens who were not caught. If
so, it is probable that more than 10,000 aliens from high-risk,
terrorist-associated countries illegally entered the United States
in fiscal year 2005 alone. Assuming conservatively that only one in
100 was an actual terrorist, that is still over 100 terrorists who
snuck across the border in a single year.
Giving Terrorists Options
Inexplicably, proponents of the Kennedy amnesty bill assume that
its enactment will allow the federal government to identify these
terrorists. On the contrary, the bill will make it easier for alien
terrorists to operate in the United States by allowing them to
create fraudulent identities with ease. To understand what will
happen if the bill becomes law, assume the perspective of the
illegal alien terrorist operating within the United States.
Within 180 days after the President signs the legislation, the
Department of Homeland Security must start handing out
amnesties, in the form of "probationary" Z visas. (No border
security triggers need to be met; the amnesty comes first,
according to Sections 1(a) and 601(f)(2) of the bill.) At that
point, the terrorist can choose whichever of three options suits
Terrorist Option #1: Continue to Operate as an Illegal
Alien. The terrorist can simply continue engaging in terrorist
planning while remaining unlawfully present in the United
This option is particularly easy if the terrorist lives in a
sanctuary city, in which the police refuse to inform the federal
government when they come into contact with illegal aliens. Most
major U.S. cities are now sanctuary cities, including New York
City, Los Angeles, and, most recently, Detroit. Detroit's huge
population of Middle Eastern immigrants provides perfect cover for
newly arrived terrorists from the Middle East.
Terrorists know all about sanctuary cities and the concealment
that such cities provide. The Fort Dix terrorists are a case in
point. The group's three illegal aliens were pulled over a total of
19 times by local police for traffic violations. But because of
sanctuary policies, they were never reported to Immigration and
Customs Enforcement (ICE).
Sanctuary cities have been prohibited under federal law (8
U.S.C. §§ 1373 and 1644) for more than 10 years.
Nevertheless, sanctuary cities defy this federal law with impunity,
because the statute does not impose any penalty on cities that
adopt sanctuary policies.
If proponents of the Senate bill were seriously concerned about
national security, they would include a provision in the bill
denying federal law enforcement funds to sanctuary cities. Such a
provision would quickly bring the lawbreaking cities back into
Moreover, even if an alien terrorist operates in a city that is
not a sanctuary city, the bill would not impede his
operations. Indeed, the Senate immigration bill will make life
easier for him by reducing the risk of deportation, because the
legislation transforms Immigration and Customs Enforcement (ICE)
from a law enforcement agency into an amnesty distribution
Under Sections 601 (h)(1) and (5) of the bill, if an ICE agent
apprehends any alien who appears eligible for the Z visa (in other
words, just about any illegal alien), the agent cannot detain him.
Instead, ICE must provide the alien a reasonable opportunity to
apply for the Z visa. This stands in stark contrast to the status
quo, in which ICE can place the alien in detention and immediately
initiate removal proceedings.
Under the Senate amnesty bill, the terrorist suffers no such
inconvenience. Instead, being discovered by ICE merely requires him
to choose either option #2 or option #3.
Terrorist Option #2: Obtain the Amnesty Using One's Real
Name. Seeking amnesty under one's real name is a promising
option for any terrorist who has operated completely underground
during his terrorist career. This is also a likely choice for a
terrorist who has been recruited into Islamic jihad only recently.
Such an individual will not have a record of past terrorist
activity maintained by any government.
Unfortunately, it is also a realistic option for a terrorist who
is actually known by foreign governments to be involved in a
terrorist organization. Under the Senate immigration bill, there is
virtually no chance that the federal government will discover his
terrorist connections in time. Section 601 (h)(1) of the bill
allows the government only one business day to conduct a so-called
background check on each applicant. If the U.S. Citizenship and
Immigration Services (USCIS) adjudicator does not find any
terrorist connection in time, the alien walks out of the building
with a probationary Z visa on the next business day, able to work
and roam the country at will.
Twenty-four-hour background checks might suffice if the
government had a single, readily searchable database of all the
world's terrorists, but it does not. Much of the relevant
information exists only on paper, while foreign governments are the
source for other data. Twenty-four hours is a terrorist's fast
Worse, as practical matter, the USCIS adjudicators would not
even have 24 hours if the Senate bill were passed. As the
Government Accountability Office (GAO) reported in 2006, the agency
is already stretched to the breaking point by the approximately 6
million applications for immigration benefits (asylum, green cards,
etc.) that it receives every year. The situation is so bad that an
informal "six minute rule" is in place--adjudicators are pressed to
spend no more than six minutes looking at any application. The GAO
concluded that failure to detect fraud is already "an ongoing and
serious problem" at the agency.
Assuming (conservatively) that 12 million illegal aliens apply
for the amnesty within the year allowed, it would triple the
incoming workload--from 6 million applications to 18 million.
Because of the 24-hour time limit, applications for the amnesty
would receive only a few minutes of scrutiny. It is a certainty
that applications from terrorists would be granted.
Even under the present system--in which there is no time limit
on background checks--terrorists have had little difficulty in
obtaining amnesties. In one case, Mahmud "the Red" Abouhalima
fraudulently obtained legal status under the 1986 amnesty that was
supposed to be limited to seasonal agricultural workers. He was
actually driving a cab in New York City and was also a ringleader
in the 1993 terrorist attacks against the World Trade Center. After
receiving legal status, he traveled abroad for terrorist training.
His brother Mohammed--a fellow terrorist in the plot--also obtained
legal status under the 1986 amnesty.
The above examples are not isolated cases. A 2005 study by
Janice Kephart, Counsel to the 9/11 Commission, found that 59 out
of 94 foreign-born terrorists (about 2/3) successfully committed
immigration fraud to acquire or adjust legal status.
With his newly acquired legal status, a terrorist can operate
with a great deal more freedom, secure in the knowledge that a
traffic violation will not lead to deportation. He can also exit
and re-enter the country, allowing him greater access to
international terrorist networks. The Senate immigration bill
literally opens up a world of possibilities for illegal alien
Terrorist Option #3: Invent a Clean Identity With the Help of
the U.S. Government. The third option is perhaps the most
troubling. The Senate bill fails to provide any safeguards against
terrorists who invent entirely "clean" identities. Because the bill
contains no requirement that the alien produce a secure foreign
passport proving his identity, terrorists will have little trouble
gaming the system.
A terrorist can walk into a USCIS office and offer a completely
fictitious name--one that does not have any negative information
associated with it. In other words, a terrorist can declare that
his name is "Rumpelstiltskin," or perhaps "Mohammed X," and most
likely, walk out the next day with a probationary Z visa, complete
with a government-issued ID card backing up his false identity.
The terrorist need only provide two easily forged pieces of
paper indicating that a person of that name was in the country
before January 1, 2007. A pay stub, a bank receipt, or a remittance
receipt would suffice, as does a declaration from one of the
terrorist's friends that he was in the country before January 1,
With this newly minted identity backed up by an ID card issued
by the federal government, the alien terrorist will be armed with
the perfect "breeder document," allowing him to obtain driver's
licenses and just about any other form of identification that he
desires. This is essentially what the 19 9/11 hijackers did: They
used their passports and visas as breeder documents to obtain 63
driver's licenses. The documents allowed them to travel openly and
board airplanes easily.
Congress could close this loophole relatively easily by
requiring each applicant for the Z-visa amnesty to produce a secure
passport with embedded biometrics. Senator Kennedy and other
proponents of the bill are unlikely to fix that loophole, however.
The majority of the 12-20 million illegal aliens in the United
States do not possess a passport--much less a passport with
embedded biometrics (which have been issued only in the last 12
months by most countries). Requiring illegal aliens to present such
a passport would disqualify too many aliens for the pro-amnesty
crowd. The flaw exposes what a deception the "national security"
Supporters of the Senate's comprehensive immigration reform bill
have revived it under the guise of national security. However, the
new public relations campaign is a farce. The bill offers alien
terrorists new pathways to obtain legal status, which will make it
easier for them to carry out deadly attacks against American
The top priority in this bill is extending amnesty as quickly
and easily as possible to as many illegal aliens as possible. The
cost of doing so is to jeopardize national security.
Kris W. Kobach is a
professor of law at the University of Missouri-Kansas City and a
Visiting Fellow at The Heritage Foundation. As counsel to the U.S.
Attorney General, 2001-2003, he was the Attorney General's chief
adviser on immigration law.