|SECURITY VS CIVIL RIGHTS?|
How will the new anti-terrorism legislation affect civil rights? Taking your questions are Douglas Kmiec, dean of the Catholic University School of Law; Anthony Romero, executive director of the American Civil Liberties Union; and Loretta Lynch, the former U.S. Attorney for the Eastern District of New York.
Murphy from Wilmington, DE asks:
How can lawmakers provide the Immigration and Naturalization Service with the best tools to improve security at the borders?
Could the new legislation allow information sharing between INS officials and intelligence agencies?
It seems there is a major lack of communication between the INS and federal intelligence agencies.
Can't they work with other law enforcement or intelligence units to find a suspected noncitizen? Are there laws restricting collaboration between agencies?
Douglas Kmiec responds:
These are all related and very good questions. Thankfully, the House and Senate have now passed versions of the Anti-Terrorism legislation asked for by the Attorney General, and assuming these bodies will soon reach agreement over their differences in detail in conference, many of your questions will be answered in a way that creates needed cooperation between law enforcement and intelligence agencies in the context of terrorism.
For example, the new law will likely allow disclosure of information gathered in a criminal wiretap investigation to additional categories of federal law enforcement personnel - immigration, security, intelligence, defense, Secret Service, the President, and the Vice President for purposes of their official duties (e.g., immigration, intelligence) without a court order. Since present law currently allows criminal information discovered in an intelligence surveillance to be shared with criminal law enforcement authorities without a court order. 50 U.S.C. § 1806, there is no reason not to allow the reverse - that is, for law enforcement personnel to do the same with intelligence and INS personnel. Any terrorist information obtained in a criminal wiretap is obtained under the highest constitutional privacy guarantees under current law and should be shared quickly with those who need it.
Thus, it is not so much asking for new law enforcement authority as for refinements that allow existing authority to be shared with those in the intelligence service who are tracking the terrorists.
The lack of sharing under current law has been a particular problem with international organized crime rings that may aid or assist terrorists or spies. Further, the INS cannot stop terrorists from entering or leaving the country if they cannot obtain information on who the terrorists are from the criminal investigators.
What the Attorney General very sensibly asked for was to allow criminal investigators to share foreign intelligence information with federal law enforcement officials, including intelligence officers and INS officers.
How do we know this is important? Well, just consider that one of the key criticisms of the General Accounting Office of the Government's investigation of the Wen Ho Lee and the Los Alamos Laboratories case was that various investigative agencies failed to share information with each other that would have materially advanced the investigation. The new law will make sure that the FBI criminal investigators who come upon information relevant to spy and terrorist investigations can share information with the FBI intelligence investigators, the CIA, and DOD intelligence operatives and the INS to increase the odds of catching and preventing espionage and terrorism. That said, the questioner is correct that the INS has existing authority to track visa violators and others in noncompliance with immigration laws that it has not well implemented. Here, new law is not needed, only a renewed commitment to enforce existing law.
J. Murphy is correct to point out the importance of the Immigration and Naturalization Service in this effort.
However, the war on terrorism will be fought on many fronts, and a multi-pronged approach is needed.
Many things can be done to strengthen the INS, however. One area addressed by the proposed legislation is the need for additional INS resources at the Northern (U.S.-Canadian) borders. Information can be shared between agencies; however, there are procedures and prohibitions on such sharing.
Generally the restrictions will depend upon the nature of the information and how it is gathered. Information gathered by an investigative agency by grand jury subpoena or court order is limited to the agency that made the showing of investigative need. If INS is brought into an investigation, however, a court order can be expanded to allow them access to grand jury material. Information gathered without court order (e.g., from interviews or public documents) can be shared between investigative agencies, and often is shared on an "as needed" basis. Indeed, agencies often request information from INS if an investigation involves foreign nationals.
The proposed legislation contains language that would improve consular officers' access to criminal history information, which will be used in reviewing requests for visas to enter the United States. There is also language that would allow the State Department to share information on the denial or issuance of visas with foreign governments for the purpose of investigating terrorism.
The INS already has a large array of powers with which to do its job. Unfortunately, these powers, and those being granted to it by the anti-terrorism legislation, are useless without the requisite level of funding. In fact, the INS typically draws a great deal of criticism and has a reputation as a "troubled" or "ineffectual" agency largely because of a lack of funding, inadequate training and poor management practices. To be clear, the ACLU believes that the INS should vastly improve its operations.
For the INS to do its job properly, Congress must allocate an appropriate amount of funding to fully implement the present tools available to the INS and allow for an increase in the technological and information analysis capabilities of the agency. The INS should also be able to afford to employ more highly trained and experienced employees at a salary level commensurate with their skill.
Finally, the INS and other federal agencies need to ensure an appropriate level of information sharing. Currently, the Department of State and the INS have difficulties in accessing key information from each other, and both should also improve their lines of communication with the intelligence community. Currently, some US consulates abroad - the State Department offices responsible for granting visas - do not have access to complete information about individuals who should not be granted entry.
The INS should also remember that part of its job as an US government agency is to follow the Constitution and guarantee that those protections granted by the Bill of Rights to non-citizens, legal or undocumented alike, be respected.