Border controls must balance security and freedom

From a national security perspective, the United States is a nation without borders. At best, it's a nation with a series of flawed and old-fashioned filters that haphazardly attempt to sift unwanted foreigners out of the flood of people continually pouring into this country.

Until now, U.S. border control has been focused on keeping poverty-stricken foreigners from becoming illegal immigrants, busting drug traffickers, and confiscating smuggled salami that isn't up to U.S. food-safety standards. The multitude of federal agencies with a role in border control have simply never been geared toward trying to figure out which educated, middle-class foreigners posing as tourists, students, or business travelers might, in fact, be terrorists intent on blowing up the World Trade Center or detonating a portable nuclear bomb.

"We've been so fixated on keeping out the tired, the poor, the huddled masses," said Wayne Merry, a senior associate at the American Foreign Policy Council, who spent 26 years with the Foreign Service. "If you've got money, education, or influence, the system doesn't filter you out. It's completely missing the problem."

National security experts, including Merry, charge that many border control officials, instead of urgently shifting gears, are still defending their traditional practices-while pointing fingers at other agencies for allowing all 19 of the September 11 terrorists to enter the country legally.

Mary Ryan, the State Department's assistant secretary for consular affairs, visibly bristled during a recent congressional hearing when Sen. Dianne Feinstein, D-Calif., declared that the ability of the terrorists to obtain valid visas represented "a colossal failure of our visa system." Ryan quickly reacted: "I have to say that it's the failure of intelligence rather than a failure of the visa system. If we had the information, we would not have issued visas to these people.... It is a lack of information-sharing, a lack of intelligence, that we have to fix."

At another congressional hearing, James Ziglar, the commissioner of the Immigration and Naturalization Service, touted an expanded computerized list aimed at providing his agents with better information about which foreigners to bar from entry. But then he told the panel, "This is not something we're hurrying up to try to get done as a result of September 11."

Ironically, the nation's tangled border security network slows legitimate commerce and law-abiding travelers while doing virtually nothing to deter imaginative terrorists. Vast expanses of the U.S. border are, quite literally, unguarded most of the time. Short of hiring enough agents to link arms across the 5,525-mile Canadian border and the 1,989-mile Mexican border, it's difficult to imagine how to guarantee the security of the country's physical boundaries.

"I take my job seriously, but we're obviously not going to be able to stop everyone" who poses a threat to U.S. security, admits INS Inspector Jim Schubert, a former Marine who has kept the haircut and who works at the mouth of the Detroit-Windsor Tunnel, one of the most heavily trafficked entry points along the U.S.-Canadian border.

If U.S. border control is a kind of filtration system, the most crucial sieve is composed of the disparate "lookout" lists that a host of federal agencies have created to warn their staffs about which foreigners should be kept out of the country. Another screen is the visa system, largely policed by U.S. Foreign Service officers overseas. The North American continental perimeter; the U.S. borders with Canada and Mexico; and U.S. seaports also act as filters. Overall, this complicated protection system is in severe disrepair as a result of congressional neglect, outdated priorities, interagency turf wars, and economic globalization. And this broken network is partly responsible for allowing 19 foreign terrorists to reduce the World Trade Center to rubble.

"How are you able to filter the bad from the good and the dangerous from the benign? The answer is, we don't. And basically, we can't, within the current border architecture," said Stephen E. Flynn, a former director for global issues at the National Security Council. "My fear is that placing more requirements on a dysfunctional system will just make it more dysfunctional."

The September 11 attacks have heightened calls to reorder border control priorities to focus on deterring would-be terrorists long before they get anywhere near U.S. territory. Would it make more sense to triple the number of spies instead of tripling the number of Border Patrol agents? "If we are really trying to police against terrorism, the most effective place to put the resources is not broad immigration controls but better investigations of leads," contends former INS General Counsel David A. Martin.

The anti-terrorism bill that Congress passed in October authorized a tripling of U.S. agents along the Canadian border. And it encouraged-but did not require-agencies to share their lists of suspected terrorists. President Bush has created a Foreign Terrorist Tracking Task Force to recommend improved techniques for both keeping out and evicting would-be terrorists. Meanwhile, Sens. Edward Kennedy, D-Mass., and Sam Brownback, R-Kan., have introduced a package to overhaul border control efforts.

Still, these are small steps toward dealing with a very large problem. About 350 million of the 500 million people who cross U.S. borders annually are foreigners. Every day, more than 250,000 people arrive in the United States from Canada, and 800,000 come in from Mexico. Finding one or 1,000 terrorists in that great mass of humanity is a daunting task. "You're not just looking for a needle in a haystack," Brownback laments. "You're looking for a needle in a hayfield."

Building a Better Terrorist Trap

If September 11 didn't get U.S. agencies to cooperate, what on earth would? More than a month after the President declared war on terrorism, the State Department's Ryan told a Senate panel that she feared her consular officers were still in danger of unwittingly granting visas to known terrorists because the intelligence agencies weren't sharing all of their pertinent information. "That has to change," she declared.

Many border control specialists argue that the United States desperately needs one gigantic computerized database that includes all the information collected by federal agencies about foreigners who should not be allowed into this country. Ideally, it would also include enough physical information about foreigners who have been granted visas to allow border agents to verify their identities before they cross a U.S. border.

Currently, however, many agencies seem more concerned about guarding their own sources than about sharing information. The new anti-terrorism law permits-but arguably does not require-the FBI to share one of its lists of "unwanted" foreigners with the State Department and the INS. The Kennedy-Brownback bill merely urges the CIA, State Department, and INS to draw up and implement an information-sharing plan.

In addition to those three agencies, many others have a role in gathering border control information. They include the FBI, the National Security Agency, the Customs Service, the Coast Guard, the Drug Enforcement Administration, the Agriculture Department, and the Federal Aviation Administration. Each has databases focusing on specific aspects of border control, but most of the collected information has nothing to do with national security. The INS doesn't even know how many databases it has. One INS official said that, just in the inspections division, there are "15 or 16 that I know of myself, and there are some I probably don't even know about."

Since September 11, CIA Director George J. Tenet has ordered his staff to share information with other agencies. But former CIA analyst Melvin Goodman said that intelligence agencies don't trust other parts of the government. "You'll think, `What does the INS know?' " he explained. Plus, in wartime, he said, the intelligence community puts military needs first. "Once you start shooting, your priorities change," he said.

A national security mind-set remains elusive at the INS. Commissioner Ziglar, a former Senate doorkeeper, lauds a planned mega-database that, in theory, will marry all INS databases with lookout lists from other agencies. Yet far from being an anti-terrorism tool, the integrated system is primarily envisioned as a way to help Border Patrol agents manage their caseloads of illegal immigrants.

At the moment, federal agencies do not even collect the same types of information about foreigners. The INS, for example, records names and, sometimes, two fingerprints. The State Department keeps names, and it wants to add photos as well. The FBI collects names and 10 fingerprints. The only common denominator-names-can be spelled many different ways when translated from Arabic and other languages that don't share our alphabet. It is also common in Arabic cultures for relatives to have identical names. "Even with all these complications and problems, my gut reaction as a database expert is that [combining agency lists] is what you want to do," said Richard Winter, whose company maintains databases for the Customs Service.

There are models for this type of system. Australia already checks its one integrated list of suspicious foreigners at every point in the entry process: when foreigners are issued a visa or, for people not required to have visas, when they buy airline tickets into the country; when Australia-bound passengers check in at a foreign airport; and when passengers reach the country.

Even if the United States adopted such a system, however, it would be only as good as the information fed into it. For starters, Brownback urges better cooperation between U.S. agencies and foreign intelligence officials, especially those in the Middle East. Several border control experts recommend stationing additional American eyes and ears overseas. Mark Krikorian, the executive director of the Washington-based Center for Immigration Studies, bluntly advises: "We ought to have people paying attention and taking names at the `Death to America' rallies."

America's `Borders' Overseas

While the State Department's Ryan is eager to wag a finger at intelligence agencies for not sharing, many foreign-policy specialists see plenty to fix within her own department. In training its young diplomats to get along with the locals when posted abroad, the department has developed systems that, intentionally or not, discourage officers from taking more than a cursory look at visa applications before approving them.

Although the department is now paying more attention to visa applications from 16-to-45-year-old men in at least 25 Muslim countries, Secretary of State Colin L. Powell has attempted to smooth the ruffled feathers of the targeted countries by stressing that the change is only temporary. In any case, the past suggests that selectively heightening scrutiny won't solve the problem. One of the men involved in the 1993 World Trade Center bombing did not even need a visa to enter the United States because he carried a forged passport from Sweden, one of 29 countries whose citizens may come in without visas.

Ryan stresses that she has too few visa officers. One former high-level Foreign Service officer recalls that, in the Middle East consulate where he was posted, the entry-level officers sometimes processed 480 visa applications a day. "They haven't got a clue what's going on," he said. "They haven't got the time."

Most Foreign Service officers who check visa applications are on their first two-year tour of duty. And the questions they've traditionally been told to ask are geared more toward finding out whether the Egyptian goat farmer applying for a tourist visa secretly wants to improve his standard of living by becoming an illegal U.S. resident than toward determining whether his real intent is to blow up the White House.

Based on his years with the Foreign Service, Merry contends that the service mentality of most State Department officials is anything but an asset in jobs where the most critical task is spotting liars. "The first screen that is supposed to keep out dangerous people is staffed by people who, in a rational personnel system, would almost be the exact opposite of the people you would want," he said. "The key failure in the way the State Department staffs these jobs is, it gives immensely important authority to people who have no street smarts."

The ethos in U.S. consulates tilts toward approving visas. Junior officials are far more likely to be second-guessed about why they turned someone down than about why they authorized a visa. "We weren't checking issuances. We were checking refusals," says a former high-ranking diplomat who served in the Middle East. And U.S. consulates often hire locals to help with visas. Last month, a Saudi national was arrested for taking bribes to issue U.S. visas to other Saudis. And even though 15 of the September 11 terrorists were from Saudi Arabia, the United States continued to issue visas through Saudi travel agencies to people whom no U.S. official had even laid eyes on.

Sometimes State Department policies almost invite security breaches, according to the former top diplomat. He recalls that, at one point, any Syrians who claimed to be Jewish were not questioned about how long they wanted to remain in the United States. One consular official at the time quickly pointed out that applicants merely needed a passport stamp that read "Jewish" in Arabic. "How long is it until someone forges that?" she asked, according to the retelling. "That's how you start a fraud business."

Moreover, lowly Foreign Service officers sometimes are pressured by members of Congress or their ambassador to grant visas against their better judgment. "Congressmen like nothing better than to violate their immigration statutes on behalf of constituents or campaign contributors," Merry says. He proposes shifting the State Department's visa duties to INS officials, who have more of a law enforcement mentality. "I am under no illusions about INS," Merry said. "I would rather try to fix INS and to get INS up to snuff as a law enforcement agency than try to change the entire institutional mentality of the State Department."

The new anti-terrorism law provides for a study of passport fraud and visa "shopping," the practice of going from consulate to consulate in search of a U.S. official willing to approve an applicant's entry. The Kennedy-Brownback bill proposes adding biometric identifiers, such as fingerprints, to visas as a way to reduce fraud, but it doesn't address the problem of applicants who use false or stolen documents to obtain visas. And, the United States cannot by itself require what experts say would really help-an international biometric identifier on all passports and an international registry of stolen passports.

Even after foreigners obtain the documents that allow them to board U.S.-bound flights, advanced copies of passenger lists offer another layer of security. Most international airlines voluntarily provide these lists to the INS after takeoff, to allow for background checks. But, significantly, the national airlines of Egypt, Pakistan, Jordan, Saudi Arabia, and Kuwait are among those refusing to cooperate. The airline security act signed into law on November 19 requires all carriers to begin providing international passenger lists within two months. However, the Customs Service has now warned airlines that if they fail to comply immediately, their passengers will be subjected to slow, intrusive searches.

Continental Defense

The "continental defense" courtship began in 1996, when Canadian Foreign Minister Lloyd Axworthy publicly began to worry that new U.S. immigration laws would hamper trade between the two countries. He started advocating the idea of North American security-that is, beefing up security on the continental borders and relaxing security among the United States, Canada, and Mexico. After September 11, U.S. Ambassador to Canada Paul Cellucci began aggressively promoting the idea, but Canadian Prime Minister Jean Chretien remains fearful it would undermine Canadian sovereignty.

North American security is a straightforward concept: It's simple to illegally cross national boundaries within North America, so make it difficult for unwanted foreigners to reach the continent in the first place. The process would involve merging American, Canadian, and Mexican lists of suspected terrorists and striking compromises on certain immigration policies. Proponents say that, in addition to providing a new layer of security, this system would allow people and commercial traffic to flow more freely within North America.

"The farther away from the border you can stop somebody, the easier it is to stop somebody," says Demetrios G. Papademetriou, the co-director of the Washington-based Migration Policy Institute. Former INS Commissioner Doris Meissner endorses the idea as more workable than a border buildup. But Rep. Lamar S. Smith, the Texas Republican who honchoed the 1996 immigration law, says: "I think it's awfully hard to draw a perimeter around the U.S. and Canada. I think every nation needs to be responsible for its own public safety."

Chretien's wariness indicates the political sensitivity of perimeter protection. As one Canadian official puts it: "Any situation where there is a smaller country next to a bigger country, there is a concern. The smaller partner is always like, `Gee, we've got to look out so that we don't get bullied.' "

Not surprisingly, data-sharing is at the top of the list of issues that would need to be resolved. However, one Canadian official suspects that "there are probably more [data-integration] problems within the U.S. government than there are between the U.S. and Canada." Integrating immigration policies would be more contentious. The United States requires visas of citizens from 29 countries that are on Canada's "waiver list." Two, Saudi Arabia and Malaysia, are among those whose travelers are now getting increased U.S. scrutiny.

The United States has criticized Canada's asylum policy as lax, especially after terrorist Ahmed Ressam's 1999 attempt to smuggle explosives from Canada into the United States. Ressam had been living legally in Canada as an asylum-seeker, but a Canadian official noted that his country has since toughened its asylum policy.

Among other issues, a perimeter security agreement would have to work out what goods could be brought into the continent (Canada bans guns), and what other countries North Americans could visit (U.S. citizens may not travel to Cuba, a popular vacation spot for Canadians). In addition, the North American countries would have to agree on privacy concerns, screening procedures, boundary security rules, and union labor rules for inspectors. The United States and Canada would also have to agree on how to integrate Mexico-the origin of millions of illegal U.S. immigrants-into the security zone.

As for implementation, Jack Martin, a former political counselor with the Foreign Service, warns, "As long as the Canadians do not feel themselves as the objects of terrorism, they're not going to have the same stake in a rigorous application of whatever policies might be worked out."

A joint border control effort is already being tried by 15 European countries: Austria, Belgium, Denmark, Finland, France, Germany, Greece, Iceland, Italy, Luxembourg, the Netherlands, Norway, Portugal, Spain, and Sweden. Outsiders who obtain a visa to enter one of the countries may travel freely in the other 14 as well.

The results have been mixed. The group has one shared list of internal menaces and another of dangerous outsiders. But the guidelines for putting names on the lists vary by nation. And, of course, the system isn't foolproof. For example, the watch lists apparently did not include the suspected associates of Osama bin Laden who were recently discovered in Germany or the eight men arrested in Spain on suspicion of having links to the September 11 terrorism.

And cooperation isn't always the rule. Elspeth Guild, a Dutch professor of European law, says, "The big problem is identifying who the bad people are." For example, a Greenpeace activist from New Zealand applied for a visa to visit the Netherlands and was turned down because France had entered the activist's name into the lookout database. France considered the activist dangerous because Greenpeace had been protesting France's nuclear testing in French Polynesia. The Dutch public was outraged by the French treatment of the environmentalist. "You're making more countries more suspicious of one another, when what you've been ... trying to create is more cooperation," Guild said.

A Run for the Border

The biggest holes in U.S. border control are the vast spaces between legal points of entry. Border Patrol agent-in-charge Richard Nemitz and his team guard a 140-mile stretch of border in Michigan. How frequently do they catch someone slipping across the border? "Not often enough," he says. "We can't be everywhere at once."

Congress has routinely shortchanged the Border Patrol and its seaport counterparts because they create friction in a free-trade-oriented system, according to Flynn. This country's struggle in the post-September 11 world is to find the right balance between beefing up border security and keeping the economy moving.

When Border Patrol agents do apprehend people trying to enter illegally, current procedures make it difficult to identify and deport them. Nemitz said he fingerprints such aliens and checks the prints to see if they belong to a repeat border offender. He also runs the names through INS lookout databases, which are linked to state and local law enforcement lists. If he suspects that an alien has a criminal record, Nemitz can fax fingerprints to the FBI. But, unless there seems to be very good cause, holding on to someone for the time it takes to hear back from the FBI could be construed as violating civil liberties, he said.

An illegal border-crosser who doesn't appear to have a criminal record is asked to leave voluntarily or to attend a deportation hearing. Is Nemitz concerned about the people who don't show up for their hearings? "Certainly, but [Border Patrol] doesn't have control over that." Whether he keeps an alien in custody usually depends on the availability of a jail cell. "There's times when there are people you feel you need to incarcerate that you just can't," Nemitz said.

At legal ports of entry, inspectors now spend three or four minutes on checks that would have taken 20 seconds before September 11. Veteran inspectors wonder how long it will be before the balance tips back toward economics. "The problem is, you've got to move the traffic," said Dave Houston, a retired border inspector in Detroit. "If a car pulls up and the inspector asks questions that try to elicit something more than a yes or no response, traffic is backed up 47 miles into Canada. The supervisor is screaming because the tunnel company is screaming. Right now, they're able to tell the tunnel company to wait, but a couple, three months down the road, I don't know." To speed the flow of people deemed to be low risk, both the United States and Canada have developed small-scale background-check programs-on hold since September 11-allowing frequent border crossers to avoid daily checks.

The biggest economic pressure falls on Customs agents, who are responsible for checking out trucks and shipping containers as they enter the United States. "We have an economy that has to be running. You can't lock up the United States," says one Customs insider in Detroit, citing pressure from the auto industry to keep shipments moving quickly. As a result, he said, he's seen no tightening of inspection procedures for incoming trucks.

Since September 11, Customs agents have begun "visual roving," which amounts to watching trucks as they drive by. "You have 6,000 trucks crossing your border every day. How many can you look at?" the Customs insider asked. "Can you rest assured that you know what is in there? You can't." In deciding whether to inspect a truck or wave it through a border, Customs agents largely rely on advance information provided by the trucking company.

Some U.S. policy makers want to bring more order to the border. In mid-November, the INS announced a long-contemplated restructuring plan that would divide the agency into a border enforcement division and an immigration services office. Commissioner Ziglar told National Journal that he has changed "very little" in that plan in light of September 11. House Judiciary Committee Chair F. James Sensenbrenner Jr., R-Wis., has introduced a competing plan to reorganize the much-maligned INS. Meanwhile, the Bush Administration is entertaining the idea of merging the agencies responsible for border enforcement. Rep. Mac Thornberry, R-Texas, and Sen. Joe Lieberman, D-Conn., have introduced legislation to consolidate the Border Patrol, the Customs Service, and the Coast Guard.

In the new anti-terrorism law, Congress authorized $609 million to triple the number of INS inspectors along the Canadian border to 1,470 and triple the number of Customs agents there to 5,319. But Sen. Brownback says he's under no illusion that U.S. borders can be completely fortified. He recalls visiting an INS facility near the Mexican border where people from 59 countries were being detained. "We have a Border Patrol person every half mile, but people still get through in great numbers," Brownback said. "If [ordinary] people are just wandering in, what can an organized [terrorist] network do?"

Security Without Borders

America's immediate response to the September 11 attacks was to pull up the drawbridge. The nation is still feeling the economic reverberations of grounded planes and halted commerce. "We knew that, in fact, we don't have an ability to filter the bad from the good," Flynn said. "Once we had this wake-up call, the only thing we could do was turn off the spigot."

Congestion on the Canadian border is beginning to ease up. But the anti-terrorism law will require INS inspectors to log every foreigner legally entering or leaving this country. And that promises to bring back long lines at the land borders' legal entry points.

Responding to economic pressures to compete in the global marketplace, the United States has placed an ever-higher premium on moving products and people quickly and efficiently. Under the North American Free Trade Agreement, trade with Canada and Mexico tripled. And as demand for cheap labor rose, Congress looked the other way when it came to enforcing immigration laws.

One downside of globalization is that it gives foreign terrorists more ways to infiltrate this country. Some national security specialists say the United States should give top priority to finding a means of speeding the flow of people and goods that clearly seem harmless. "If you can do that with confidence," Flynn said, "you can take that huge haystack and set it aside, so you can focus your limited resources on that which you know nothing about."

A first screen to separate the clearly safe from the potentially dangerous would be a good start. But there would still be other massive challenges: trying to work out interagency turf disputes, adopting a comprehensive lookout list, overhauling the visa system, establishing an international list of stolen passports, and merging U.S. and Canadian border control efforts.

In practice, weeding out the bad guys from the good guys means checking as many people, trucks, and cargo containers as possible before they reach the U.S. border, to make sure they are who and what they purport to be. U.S. officials could speed up this process without compromising security, experts say. It shouldn't be difficult, for example, to establish a biometric identity card for people who regularly cross the Canadian border; both the U.S. and Canadian governments have already taken steps in that direction. (The Dutch are experimenting with using iris scanners to check frequent fliers' identities.)

Flynn contends that 95 percent of the non-NAFTA goods coming into the United States could be checked at six foreign mega-ports. Inspected containers could then be sealed with a tamper-proof electronic device that would make it easier to track the container's whereabouts. A similar tracking system could be used for border-crossing trucks.

The faster a ship or truck moves, the less opportunity there is to tamper with its contents, Flynn says. And if a particular container were suspected of being linked to terrorists, an electronic tracking system would theoretically allow investigators to locate it without stopping all commerce. "If you could reduce the opportunity for social and economic chaos coming from an attack," Flynn says, "you destroy its military value. You can take some of the oxygen out of this grotesque form of terrorism."

But any effort to better balance the economic and security needs of the country must fight inertia that is several bureaucracies thick. On a recent morning, Canadian Jeffrey Hanlon drove through the Detroit-Windsor Tunnel and flashed his visa. The border inspector smiled, nodded, and waved him on. As Hanlon headed to his job in downtown Detroit, he realized that for the first time since September 11, the inspector hadn't asked him for a photo ID. "It was just like old times."