Guarding the Gates in a World on the Move

Always on the lookout for opportunities to press their case, anti-immigration advocates lost no time after the attacks of September 11. As one of them pointed out in testimony before the Senate,

It seems clear that the 19 terrorists of September 11 were all foreign citizens and entered the United States legally, as tourists, business travelers, or students. This was also true of the perpetrators of previous terrorist acts . . . While it is absolutely essential that we not scapegoat immigrants, especially Muslim immigrants, we also must not overlook the most obvious fact: the current terrorist threat to the United States comes almost exclusively from individuals who arrive from abroad. Thus, our immigration policy, including temporary and permanent visas issuance, border control, and efforts to deal with illegal immigration are all critical to reducing the chance of an attack in the future”. [1.  Steven A. Caramota, Director of Research, Center for Immigration Studies, "Immigration and Terrorism," Testimony prepared for the Senate Judiciary Committee Subcommittee on Technology, Terrorism and Government Information, October 12, 2001.]

On a more extreme note, Pat Buchanan urged an immediate moratorium on all immigration, an expansion of the Border Patrol to 20,000, a radical reduction of visas issued to nationals of states that harbor terrorists, and the expedited deportation of “the eight-to-11 million illegal aliens, beginnings with those from rogue nations.” Moreover, “President Bush’s amnesty proposal” – a reference to ongoing negotiations between the United States and Mexico for a new immigration program, which might include legalization of unauthorized residents – should be quietly interred”. 1

In the country at large, the attacks unleashed a spate of aggressions against people who were seen as resembling the terrorists or believed to sympathize with them, occasionally with tragic consequences. Overall, Washington responses were restrained, but nevertheless ambiguous. Unlike in previous surges of securitarian nationalism provoked by international conflicts, most notoriously with regard to ethnic Japanese (including American citizens) in the wake of Pearl Harbor, there were no moves to restrict immigration properly speaking or to cast suspicion on nationality groups wholesale. Instead, the President pointedly visited a mosque and the Mayor of New York admonished the city’s residents not to seek revenge on Arabs or Muslims. Senator Edward M. Kennedy, Chairman of the Senate Judiciary Committee’s Subcommittee on Immigration, insisted that “Immigrants are not the problem, terrorists are the problem.” 2 Even as he announced a crackdown on illegal immigration and tightened visa procedures, President Bush made the same distinction: “We welcome legal immigrants but we don’t welcome people who come to hurt Americans.” However, measures undertaken to enhance security by tightening admission procedures as well as to search for the enemy within led to the targeting of Muslims and Middle Easterners, broadly speaking. Moreover, the U.S. refugee resettlement program ground to a halt, “leaving thousands of refugees overseas in dangerous limbo, straining the limited resources of agencies that resettle them, and exacerbating the decline in annual U.S. refugee admissions for yet another year.” 3

Quite literally, none of the hijackers nor any of the other suspects identified so far qualifies as a full-fledged “immigrant,” in the sense of someone who was admitted to the United States for permanent settlement, or had effectively lived there for an extended period. They were all “visitors,” most of them duly authorized to enter for short periods of time, a few entering surreptitiously. Although in the ensuing debate there were many references to the necessity of modifying “immigration policy,” in effect the proposed changes were almost entirely circumscribed to matters of “border control.” These developments highlight the fact that international migration constitutes a sub-category of a more comprehensive and vaster phenomenon, the movement of people across international borders. The distinction is not merely a matter of legal regulation but reflects tangible social realities involving duration of the stay and the activities carried out during that period. It is reflected in census enumerations, which do not count visitors as “residents,” and consequently in demography, which does not reckon them as “population.” Whereas all international migrants start out as border-crossers, most border-crossers do not become migrants but remain visitors. While the study of international migration is a well-established field, movement across international borders has evoked little analytic interest among social scientists. Yet the attack suggests that the phenomenon should be considered as a distinctive subject, and that the concerns it has evoked in the wake of 9/11 help orient our analysis. While the modalities of the attack are strikingly contemporary, responses to it in the United States and abroad are being cast within a classically Westphalian framework: calls for a crash program to enhance the nation’s capacity to police its territorial borders, as well as to identify and neutralize foreign-origin enemies within, and to improve intelligence abroad. However, this approach is at odds with the imperatives of globalization as well as of democracy. As one experienced analyst put it, “Building a Fortress America will not work. It will be incredibly expensive, disrupt commerce, and infringe civil liberties.” 4 Whereas globalization demands and fosters the expansion of international travel, extending across all social strata and poor as well as affluent countries, national security calls for the imposition of restrictive controls that will impede movement. Within the state, evidence of vulnerability to terrorist attacks by outsiders enhances the value of protection while downgrading the social costs that heightened protection imposes, notably on residents who share an ethnic origin with the putative terrorists or who are thought to resemble them. The two processes are interactive, as globalization itself brings about greater population diversity so that, whoever the dangerous group turns out to be, the targeted society is likely to have such people in its midst. Moreover, interpretations of the conflict as an essentially cultural one, opposing Islamic fundamentalism to Western civilization, foster suspicion of Muslims of any kind, much as in the initial years of the Cold War, interpretations of the conflict as an essentially ideological one led many in the U.S. to impugn the loyalty of every socialist.

Border control has long been recognized, in theory as well as in practice, as a vital operational feature of the international system of states. As Emmerich de Vattel reasoned in his foundational mid-eighteenth century treatise of international law, control of the entry of foreigners into the realm is a sine qua non of sovereignty, since in its absence, hostile armies could just walk in. The expansion of travel and the proliferation of regulations pertaining to movement gave rise to elaborate institutions involving physical barriers and designated administrative checkpoints, coupled with standardized official documents identifying the nationality of the border-crossers – i.e. passports. 5 Successive revolutions in transportation which radically lowered the cost of travel and rendered it accessible world-wide, together with the rise of international tensions at the turn of the twentieth century, rendered refoulement at the border increasingly inconvenient and risky and prompted the institutionalization of “remote control,” i.e., the requirement of obtaining permission to enter before embarking on the journey with a visa entered in the passport by an official of the state of destination. The generalization of what amounts to a projection of the country of destination’s borders into the world at large was vastly facilitated by the advent of air travel and has become a routine procedure in international airports world-wide, with the transportation companies harnessed to its implementation as ancillary border police.

Under contemporary conditions, border control entails a staggering task. For example, it is estimated that in a current year, the INS inspects some 450 million persons entering by land and about another 100 million entering by air or by sea, amounting altogether to approximately twice the entire population of the United States. 6 Leaving aside returning U.S. citizens and foreign commuters with multi-entry special passes – for example, Canadian nurses working in Detroit area hospitals and Mexicans factory workers in El Paso – the number of foreign entrants is in the neighborhood of 60 million. Last year, the United States issued 7 million new visas to foreigners; some 800,000 went to immigrants proper; about 600,000 to students; and most of the remainder to short-term visitors engaged in tourism or business. In addition, visitors from 29 countries, accounting for approximately half of documented entries, benefit from a Visa Waiver Program, extended by the United States to countries whose nationals are considered unlikely to overstay or engage in criminal activity.

This provides some perspective on the scale of the security challenge. It appears thus far that approximately 1 of every 500,000 visas awarded in the two-year period preceding 9/11 went to a hijacker or one of their suspected associates. Somewhat more precisely, over the same period, some 120,000 visas were issued to Saudi nationals, among them 15 of the hijackers – i.e., approximately one of every 8,000. The several million entrants who were visa-exempt also included one known terrorist, a Morocco-born individual who had acquired French nationality.

The difficulty of redesigning border control to provide greater security is exacerbated by the fact that the task is divided between two disparate segments of the American state, leading to protracted turf wars. Since visas must be awarded abroad, the function naturally devolves upon the Department of State; however, control of entry at the border proper falls within the sphere of domestic policing, conducted by the Immigration and Naturalization Service (INS). Given the ongoing division of labor, consular officers who issue visas have very limited information about applicants, other than what the latter provide; although in recent years they gained access to an INS database with 5.7 million names of individuals with past immigration problems, this does not cover those who apply for the first time. The FBI has refused to open its own database to the INS or to the Department of State; but even if this were to change, it would prove of little assistance in detecting foreign terrorists since they are unlikely to have accumulated criminal records in the United States. Moreover, neither of the agencies that regulate admissions has access to intelligence data.

Some two months after the attack, the shape of the likely policy responses has become discernible. On October 26, President Bush signed the “Patriot Act” giving law-enforcement agencies broad powers to pursue terrorists through search warrants and eavesdropping, and providing for the possibility of holding aliens without charges for longer periods of time than was previously the case. The following week he named a Foreign Terrorist Tracking Task Force to recommend specific changes in laws and admission procedures, including those covering student visas, in order to deter would-be terrorists from entering. Concurrently, bipartisan proposals got under way in Congress to give the State Department and INS electronic access to FBI and CIA “lookout lists” of potential criminals and terrorists, as well as to establish sophisticated identification technology at all ports of entry. This would in turn require tightening identification requirements for visa applicants by subjecting them to biometrics such as fingerprints. There was also considerable talk of creating a centralized system for keeping track of the whereabouts and activities of alien residents and visitors, including students. Perennially criticized by both the anti- and pro-immigration camps for its mismanagement of the border, the INS came under acute fire and appeared to be not much longer for this world.

While awaiting elaboration of these medium- to long-term instruments of control, efforts to achieve greater security focused more narrowly on nationals of Arab and Muslim countries. On November 9, the State Department announced it would subject male visa applicants aged 16 to 45 from 26 nations in the Middle East, South Asia, Southeast Asia, and Africa, to special scrutiny. Reflecting the administration’s determination to avoid closing the door more generally, this decision was criticized by advocates of tighter immigration on the holier-than-thou grounds that “There should be a consensus in the United States that we don’t want an ethnic- or religious-based immigration system.” 7 The State Department also accelerated its pending review of six of the 29 countries whose citizens are exempt from visas, notably Argentina, Belgium, Italy, Portugal, Slovenia, and Uruguay on the grounds that these countries reportedly have problems ranging from economic crises to passport fraud and theft. 8

Student visas were singled out for special concern in the light of reports that most the terrorists were “intellectuals,” and of the by now notorious fact that such visas can be obtained by registering in a wide range of institutions, including proprietary schools that teach English – whose use in obtaining a visa is widely advertised in the New York subway – or flying, and that at least one of the terrorists never registered at the school that certified him as a student. Despite early talk of suspending student visas altogether for an extended period of time, subsequent proposals were much more limited; however, institutions that certify foreign students will henceforth be required to report on their attendance. Although this does not entail new regulations, because as a condition of most education visas, foreign students sign a waiver permitting the institutions in which they register to provide to immigration officials the particulars of their course of study and their whereabouts, years ago the government asked administrators “to stop sending this information to Washington years ago because the I.N.S. could not scale the mountain of paperwork.” 9 In the wake of 9/11, however, 220 institutions reported having been contacted by F.B.I. and I.N.S. agents to collect information about students from Middle Eastern countries.

As noted earlier, however, even if more effective visa screening procedures were to be successfully implemented, this would not resolve border leakage, whose order of magnitude can be inferred from the fact that in 2000, the Border Patrol arrested roughly one million people trying to sneak into the United States from Mexico, and 12,000 from Canada, including among the latter 254 persons from 16 Middle Eastern countries. That same year, U.S. agents also detained or turned back some 4,000 people at Canadian checkpoints alone. Estimates of the number of undocumented entries range very widely, but a reasonable suggestion is that, together with equally undocumented exits, they result in a net increment of about 200,000 illegal aliens a year. Overall, the Census Bureau estimates that there are currently some 8.7 million aliens in the United States who are neither temporary visitors nor legal immigrants; however, as the total includes some in a quasi-legal status, waiting to have their cases adjudicated, it reckons illegal immigrants proper at between 7 and 8 million, which is close to the INS figure of 7.5 million. This suggests that the number more than doubled since 1990 and now amounts to about 2.5 percent of the total U.S. population. Most of them originated in Mexico and Central America. 10

While unauthorized entry from the south is an old story, initial announcements – subsequently disconfirmed – that several of the hijackers entered surreptitiously across the Canadian border came as a frightening revelation. 11 Although there is little illegal penetration into Canada itself, since its geographical configuration makes it nearly impossible to enter by land (except from the United States side), Canada maintains a generous visitor policy, much like its American counterpart, and in contrast with U.S. practice since 1996, does not detain asylum seekers, of whom some 10,000 disappear every year. Movement into the United States is easy because of limited policing: albeit twice as long as its Mexican counterpart, with 115 official entry points as against 41, the Canadian border is guarded by only 334 agents, as against some 9,000 in the south. 12

Initial moves by the United States to tighten the border with existing federal personnel wreaked havoc with the regional economy, which depends on the comings and goings of hundreds of thousands of daily commuters and shoppers. To enhance security without creating unacceptable delays, the Michigan National Guard was assigned to patrol the U.S.-Canadian border on the Detroit side of the Ambassador Bridge.

In its quest for a more permanent solution, the United States faces a choice between two approaches: either to elaborate a draconian apparatus of physical and administrative barriers along the longest stretch of relatively open international boundary in the entire world, or to incorporate the two countries into a jointly managed “security perimeter.” The first alternative not only runs counter to a long tradition of trust and friendship, but is likely to be strongly opposed by powerful economic interests on both sides. However, the “joint security perimeter,” which is welcome by the Canadian security establishment including its present Minister of Immigration, raises the hackles of nationalists, notably Prime Minister Jean Christien, as yet another infringement on its sovereignty. Nevertheless, there is little doubt that if security concerns persist, the two countries will bring into being a North American counterpart of the European “Schengen” system, which originated as an undertaking by the northern tier of European Union members plus Switzerland against the “leaky” Mediterranean South. 13 It is noteworthy that in the wake of 9/11, the Canadian government itself fast-tracked legislation to tighten security at points of entry, and it was reported that the courts would authorize racial profiling for this purpose. 14

Although none of the identified terrorists is thought to have entered by way of the southern border, this is hardly comforting: for example, prosecution documents filed in a Federal conspiracy trial in El Paso in October 2001 provide evidence of the smuggling of 132 Middle Easterners into the United States from 1996 to 1998 by an organization headed by an Iraqi-born naturalized Mexican, and estimate that over 1,000 of them were brought in since the organization was launched in 1980. 15 Overall, U.S. policy might be characterized as one of “draconian laxity,” involving routine enforcement known by all to be ineffective, punctuated by intermittent, highly visible demonstrations of effective control of a circumscribed sector. This peculiar mix has been fostered by the protracted face-off between an economically-grounded laissez-faire alliance that encompasses a wide range of American employers – down to individual households eager to hire gardeners – as well as the Mexican state and Mexican workers, arrayed against a politically-grounded regulatory camp driven by the identitarian concerns of non-Hispanic whites, championed by the California Republican party. One of the most surprising developments of the 2000 presidential campaign was the determination of George W. Bush to move away from his party’s traditional position on this matter. Consequently, despite evidence of a worsening economic downturn, on the very eve of the attacks, the United States and Mexico were engaged in unprecedented high-level bilateral negotiations toward an innovative immigration program.

Choices with regard to the southern border are similar to those facing the United States in the north. In the wake of 9/11, negotiations over immigration reform were variously announced to be “dead in the water” or “on the back burner”; however, in early November it was announced that they would resume at the end of the month. In addition, President Vicente Fox proposed the inclusion of Mexico along with Canada into a security perimeter that covers all NAFTA territory, and his national security official was scheduled to travel to Washington prior to the discussions on immigration to meet with homeland security chief Tom Ridge.

Beyond this, the events also triggered a spate of proposals to make the United States more secure against the enemy within by subjecting foreign residents to systematic verification. This entails no mean undertaking, as the United States is once again a “nation of immigrants”: the latest Census Bureau estimate of foreign residents (October 2001) is 31.1 million, a 57 percent increase since 1990, representing about 11 percent of the U.S. population. 16

Given the apparent source of the aggression, for many Americans, the distinction that matters most is between putatively safe immigrants and dangerous ones, identified as “Arabs” or “Muslims,” or “Middle Easterns” more diffusely – including South Asians. The size of these groups has itself become an object of controversy. It should be noted at the outset that “Arabs” and “Muslims” overlap only in part: until recently, the U.S. population of Arab origin was overwhelmingly Christian, as illustrated by former White House Chief of Staff John Sununu and current Energy Secretary Spencer Abraham, as well as the scholar and public intellectual Edward Said. In keeping with the common practice of inflating numbers for purposes of ethnic representation, the Arab-American Institute claims that persons of Arabic ancestry total over three million; but ancestry responses on a recent census survey indicate just over one million, of whom the largest groups are Lebanese, Egyptian, and Syrian. 17 Most live in the Detroit, New York, and Los Angeles metropolitan areas. 18 Since Islam is a religion and not a nationality or an ethnicity, “Muslim” does not figure among the origin categories recorded by the census, any more than does “Jew.” An April 2001 report issued by the Council on American-Islamic Relations in Washington, D.C., states that 2 million are associated with a mosque, and estimates on that basis a total Muslim population of 6-7 million, of whom 33 percent are South Asian, 30 percent African-American, and 25 percent Arab. 19 However, the American Jewish Committee expressed concern that this would mean Muslims outnumber Jews and that “it would buttress calls for a redefinition of America’s heritage as ‘Judeo-Christian-Muslim, a stated goal of some Muslim leaders,” and commissioned a report of its own, which criticized the Mosque Report for unsound methodology and concluded that there are at most 2.8 million Muslims. 20

Interpretations of the current conflict as a confrontation between a purified Islam and a decadent Judeo-Christianity that corrupts Muslims creates an uncomfortable dilemma for some American Muslims, as the special relationship between the United States and Israel has long done for most Arab-Americans. In the present climate, opinions that deviate from the accepted range might be construed as tacit or even active support for terrorist undertakings, as indicated by news that Sheik Muhammad Gemeaha – Imam of the Islamic Cultural Center of New York’s main mosque, who left for his Egyptian home two weeks after the attack, reportedly because his family was threatened – characterized the attacks as a Zionist plot. 21 In the event, despite repeated injunctions by President Bush and other elected officials to avoid blaming groups wholesale, security measures taken by U.S. agents self-evidently entailed ethnic profiling. Under pressure from the press and civil liberties groups, Justice Department officials revealed in early November that they had detained 1,147 people in connection with the attacks, of whom over half had been released by the beginning of November; some were identified on the basis of circumstantial links with the attack, but many “were picked up based on tips or were people of Middle Eastern or South Asian descent who had been stopped for traffic violations or for acting suspiciously”. 22 The total included 235 people detained for immigration violations, mostly Arab or Muslim men, of whom 185 were still in custody. One tragic case involved a 55-year old Pakistani overstayer, dismissed by the FBI as of no interest, who died of coronary disease while in jail awaiting deportation. 23 On November 13, the Justice Department announced it would further pick up and question some 5,000 Middle Eastern men 18 to 33 who entered the country legally on student, visitor, or business visas since January 1, 2000. Although officials said the interviews were intended to be voluntary and the people sought are not considered suspects, the move was sharply criticized by civil liberties organizations as a “dragnet approach that is likely to magnify concerns of racial and ethnic profiling.” 24

The attacks have also triggered a spate of proposals to subject foreigners to some sort of mandatory identity documentation. Somewhat paradoxically, in the American situation, the absence of such documents for the general population, which is repeatedly hailed as an indication of the regime’s superiority over many of its European counterparts in the sphere of individual liberty, renders the imposition of such a requirement on aliens especially invidious. How is an agent setting out to verify identity and status to know whether the person in question is a U.S. citizen or a foreign national? In current practice, the nearest thing to an identity card is a state-issued driver’s license; however, this is based on proof of legal residence in a state rather than on citizenship, and non-citizen applicants often run into serious problems. The imposition of an identity requirement on aliens would therefore in effect require U.S. citizens who might be subject to checks to carry evidence of their citizenship (birth certificate, certificate of naturalization, or U.S. passport), and thus profoundly alter the established balance between freedom and control.

Although it is possible to imagine circumstances under which such a shift might be warranted, for the time being the more urgent internal security task is to provide adequate protection to minorities victimized by the diffuse anger of the uninformed and insure that in their encounters with American law they are accorded the full benefit of the procedural rights that constitute one of the major foundations of democracy.

  1. “Tracking Down The Enemy Within,” WorldNet Daily, October 26, 2001.
  2. The New York Times, Nov. 2, 2001: B7.
  3. Refugee Reports, 22, 9/10, September/October 2001: 1.
  4. Kathleen Newland, co-director of the Migration Policy Institute, Washington, D.C., as cited in Newsweek, November 12, 2001.
  5. John Torpey, The Invention of the Passport: Surveillance, Citizenship, and the State (Cambridge: Cambridge University Press, 1999).
  6. These figures are taken from Annual Reports of the Immigration and Naturalization Service; I am grateful to Fred C for his assistance in gathering the appropriate data.
  7. “Longer Visa Waits for Arabs,” The New York Times, Nov. 10, 2001: B5.
  8. The Washington Post, Oct. 30, 2001: A1.
  9. “In Sweeping Campus Canvasses, U.S. Checks on Mideast Students…” The New York Times, Nov. 12, 2001: B8.
  10. The Washington Post, Oct, 25, 2001: A24.
  11. Christian Science Monitor, September 19, 2001, 1.
  12. The San Diego Union-Tribune, October 25, 2001.
  13. The New York Times, September 27, 2001: B3.
  14. National Post, October 10, 2001.
  15. The New York Times, Oct. 26, 2001: A18.
  16. U.S. Census Bureau, The Foreign-Born Population of the United States: Population Characteristics,P20-534 (March 2000, issued January 2001); The Washington Post, October 25, 2001: A24.
  17. “Census had a variety of categories, but none tallied Arab or Muslims,” by Nicholas Kulish, The Wall Street Journal, September 26, 2001.
  18. The New York Times, October 15, 2001, B10 (according to Jon Alterman, Middle East specialist at the U.S. Institute of Peace).
  19. Ishan Bagby, Paul M. Perl, and Bryan T. Froehle, The Mosque in America: A National Portrait. A report from the Mosque Study Project (Washington, D.C.: Council on American-Islamic Relations, April 28, 2001).
  20. “Jewish group says estimates of U.S. Muslim population are too high,” by Rachael Zoll, The Associated Press, October 22, 2001
  21. The New York Times, Nov. 2, 2001: B10.
  22. The New York Times, November 3, 2001: B1. This was raised from 1,017 reported a few days earlier (The New York Times, October 30, 2001:B1).
  23. Somini Sengupta, “Pakistan Man Dies in I.N.S. Custody,” The New York Times, Oct. 25, 2001: B 10; and “Ill-Fated Path to America, Jail and Death,” The New York Times, Nov. 5, 2001: A1.
  24. The New York Times, November 14, 2001: B8.