Respond to this Article May 2002

Borderline Insanity

President Bush wants the INS to stop granting visas to terrorists. The biggest obstacle? His own administration.

By Nicholas Confessore

Exactly six months after Mohammed Atta and Marwan Al-Shehhi had flown planes into the World Trade Center, letters from the Immigration and Naturalization Service (INS) arrived at a Florida flight school informing these two late---very late---students that their visas had been approved. The incident seemed to capture perfectly the unfathomable ineptitude of an agency long unable to control illegal immigration but now supposed to be the front line of the domestic war on terrorism.

Among those most furious was President George W. Bush. "I was stunned and not happy," the president told reporters at a press conference. "I could barely get my coffee down." Within days, Bush's anger cascaded down through the federal bureaucracy. Attorney General John Ashcroft blasted "professional incompetence" for the "disturbing failure." INS commissioner James Ziglar called it an "inexcusable blunder" and promptly reassigned four top INS officials to "begin the process of accountability." And the Department of Justice Inspector General promised to report exactly what had happened. But why wait? Insiders already know what happened, and the president ought to hear the truth right away, though probably not while he's sipping hot coffee.

The good news for Bush---who loves nothing more than to blame Bill Clinton for everything---is that at least half the responsibility for the screw-up lies with the previous administration. In the mid 1990s, the Clinton administration initiated, then let die, a revolutionary computer visa system that could have prevented Atta and Al-Shehhi from getting their student visas, and might even have uncovered their conspiracy before September 11 came to pass. The bad news for Bush (and the rest of us) is that some of the people most responsible for killing the computer system are now running the INS---put there by none other than George W. Bush. And since September 11, these officials have been operating below the media radar to make sure that a broken immigration-security system stays broken.

Why would members of the Bush administration want to do such a thing, given the president's firm commitment to fight terrorism? Because of the president's other firm commitment to courting Hispanic voters. Key Bush officials know that an effective system of tracking immigrants is the last thing Hispanic and other immigration lobbyists want to see. Indeed, a fundamental tension operates within the Bush administration itself, and the GOP generally, between national-security conservatives, who want a strong INS capable of keeping terrorists out, and libertarian conservatives, who want a weak INS incapable of stopping the free flow of labor. It's no exaggeration to say that the future security of the country may depend upon which side wins.

The University Lobby

Student tracking has been on the drawing board since 1993, when a Palestinian immigrant named Eyad Ismoil drove a truck filled with explosives into the World Trade Center's underground parking garage. Ismoil had entered the United States on a student visa in 1989 and attended Wichita State University for three semesters before dropping out to live and work---illegally---in Texas for the next two years. When the details of Ismoil's history emerged in 1994, the Department of Justice put together an inter-agency task force to take a hard look at the foreign-student visa program.

Led by an INS official named Maurice Berez, the task force quickly discovered gaping holes. Foreign students, Berez wrote in its December 1995 final report, are "not subject to continuing scrutiny, tracking or monitoring when they depart, drop out, transfer, interrupt their education, violate status, or otherwise violate the law." To fix the problems, Berez and his colleagues envisioned a transformed student tracking system that would collect far more information than the old paper forms and filter that information automatically through numerous law enforcement databases, such as the FBI's terrorist-lookout lists. Detailed data on the "funding source" for an applicant's tuition, for instance, would be checked against the Treasury Department's money-laundering database. Sophisticated software would flag potential fraud and, where necessary, bump up the records for further analysis.

Applicants who passed the computer check would be issued a machine-readable "smart card," which would encode all the collected information, incorporate a so-called "biometric identifier" like a digital fingerprint, and serve as a tamper-proof visa. Updates on a student's educational status---like whether or not he or she had shown up for classes---would be collected automatically via computer, instead of manually via paper forms. Not only would the new system cut down on fraud---such as the use of endlessly renewable student visas as de facto green cards---but it would make it extremely difficult for would-be terrorists like Ismoil to use the student-visa system as a cover.

Largely due to Berez, the task force had been an unusually collaborative effort, involving the INS, the Departments of State and Education, nearly every federal law enforcement agency, and several highly regarded university officials. As a result, the proposal enjoyed a remarkably broad consensus. Congress put its stamp of approval on the program in 1996, mandating its launch as part of the Illegal Immigration and Immigrant Responsibility Act of that year. Two weeks after the bill's passage, INS Commissioner Doris Meissner signed off on the full proposal, known as the Coordinated Interagency Partnership Regulating International Students (CIPRIS).

But in Washington, even the most crucial, common-sense reforms have enemies---often little-known groups that feel threatened by the change. In this case, it was the professionals at colleges and universities who advise foreign students. These folks, believe it or not, have their own lobbying group: the National Association of Foreign Student Advisers. When NAFSA officials in Washington found out about the computer system, they sprang into action. Officially, the group claimed that such surveillance would be a slap in the face for foreign students. Unofficially, they worried that a system that clamped down on fraudulent or dubious student-visa applications could mean fewer foreign students, and hence perhaps fewer jobs for foreign-student advisers.

This cynical view was not necessarily shared by the 8,000 rank-and-file advisers working on America's campuses. But part of the game lobbyists play is hyping the threat of federal action to their members---the better to justify their salary, too. So, in late 1997, as the INS prepared to launch a pilot version of the computer system at 21 colleges around the Southeast, NAFSA President Gary Althen attacked the program for imposing "unnecessary obstacles" and "burdensome requirements" on foreign students and predicted a "system breakdown."

But Berez was smart. His task force had included prominent NAFSA members, and, as the pilot program progressed, he solicited constant feedback from school officials to make sure the new computer system's design would reflect the views of those who would be using it. So, contrary to Althen's prediction, the pilot program was a dramatic technical success. Field tests performed in 1999 indicated that the system could begin to expand almost immediately---to incorporate other schools, install terminals in consular offices around the world, and begin connecting the system to the law-enforcement databases. "It would have been finished maybe a year ago," says Tom Fischer, who until 1999 headed the INS office in Atlanta from which the pilot project was run.

Schools in the pilot program agreed. "We love it," says Catheryn Cotten, a NAFSA member and director of the foreign-student office at Duke University, which, like all the schools in the pilot program, still uses the system's prototype. Cotten credits Berez as the driving force behind the project. "He made some people in the [INS] uncomfortable, because he doesn't 'do it like we've always done it, do it like the government ought to do it'---whatever those terms mean," says Cotten. "He's a visionary, which is rare in a bureaucrat. He understood the big picture. But he also knew to talk to people on the ground who did this every day. He was really creating a package that would serve a lot of purposes, including ours, in the easiest and most efficient way."

Flummoxed by the computer's success, the NAFSA lobbyists soon resorted to a new strategy: get Berez removed. NAFSA's new executive director Marlene Johnson was personal friends with INS policy chief Robert Bach. Bach, in turn, was the power behind the throne of the agency's commissioner Doris Meissner, with whom top NAFSA met privately in the fall of 1998 to discuss their concerns, according to Tom Fischer, the former INS official. A few weeks later, Meissner, Bach, and INS chief of staff Peter "Mike" Becraft abruptly removed Berez as program director. Later, Berez was exiled completely from the project---and, apparently, forbidden to speak with reporters. When I called him, he referred me to the agency's public affairs office, which did not respond to repeated requests for interviews with Berez and Becraft. Neither Bach, now at the Ford Foundation, nor Meissner, now at the Carnegie Endowment for International Peace, returned repeated calls. NAFSA's government affairs director, Victor Johnson, says he doesn't "recall" the meeting with Meissner, and that NAFSA "as an association" was never involved in efforts to get Berez bounced.

Whatever the extent of its involvement, having Berez out was a big plus for NAFSA. The next step was to find an excuse to delay the system from being rolled out nationally. They found that excuse in one-time fees of $95, which the law required foreign students to pay when applying for a visa. Universities would forward those fees to the INS and they would be earmarked to pay for the computer system. To delay or kill the fee, the lobbyists reasoned, would delay or kill the computer system.

Ideological Soulmates

For help, they turned to an ideological soulmate: Stuart Anderson, an influential Senate aide and confirmed opponent of computerized visa tracking. Anderson represents a certain type of Washington player: the ideologically committed intellectual who spends years honing his ideas and playing politics from outside government, then finds himself with a powerful job on the inside. In the mid-1990s, Anderson had been an immigration specialist at the Cato Institute, a libertarian think tank. At that time, most Republicans were going through a Pat-Buchanan-inspired nativist phase and were pushing legislation to massively restrict immigration. To his credit, Stuart Anderson was one of the few on the right who defended generous access. He also was part of a broader left-right coalition of business lobbies, immigration lawyers, liberal ethnic activists, and civil liberties organizations working against such legislation.

The coalition succeeded in stopping the immigration cuts. But other things they hated became law. One was the student -tracking computer system. Another was a broader "entry/exit" system to track all visa-holders when they entered and exited the United States. (In essence, a kind of inventory control for visa-holders that would notify law-enforcement officials when visitors overstayed their visas---as several of the September 11 terrorists did.)

As an ideological libertarian, Anderson despised the very idea of computerized documentation and visa-tracking. In research papers and op-eds, he had decried such systems as tools of a police state. "No one knows which is worse," he wrote in a May 1995 op-ed in The Hill about plans for national IDs, "a government computer that is 27 percent inaccurate, or one that contains accurate information on each and every American."

In 1997, Anderson left Cato to be immigration policy director for Sen. Spencer Abraham, a rare pro-immigration Republican who had won the chairmanship of the Senate's immigration subcommittee. From his perch at the subcommittee, Anderson quarterbacked a counter-offensive against the computer-documentation and visa-tracking provisions that had passed the previous year. When NAFSA and several other education associations protested the $95 as "an unreasonable barrier to foreign students" and challenged the requirement that schools collect it (which had been on the books for three years), Anderson got busy. He orchestrated a group of 21 senators, led by Abraham, to urge Meissner to delay further implementation of the student-tracking system until the fee system could be worked out. They succeeded, and the student-tracking program languished until 2000.

Meanwhile, the new computer system's internal opponents moved to finish it off for good. First, they broke it down into modules, each slated for gradual development (a totally unnecessary step, considering the thing worked). Second, they abandoned the very elements that made it effective against terrorists. Unlike its prototype, the new system---renamed SEVIS, for Student and Exchange Visitor Information System---would not collect nearly as much information nor cross-reference it with other government databases. Nor would students receive biometric visa cards. In fact, the new initiative amounted to little more than entering the old student-visa forms onto a computer---information, Fischer told The Washington Post, "you can get off the phone book."

If anything, the election of George W. Bush made things worse. As governor of Texas, Bush had positioned himself as an ally of immigration advocacy groups and a friend of open borders. Karl Rove, Bush's top adviser and by all accounts the final authority on immigration issues within the administration, was obsessed with moving Hispanic voters nationally into the GOP column. Moreover, Abraham had joined Bush's cabinet as secretary of energy. Abraham's legislative director, Caesar Conda---who had been instrumental in shepherding an expansion of H1-B visas through Congress---became Dick Cheney's chief domestic policy advisor. Although Bush had spoken vaguely of INS restructuring during the 2000 campaign, the only immigration-related reform pursued with any vigor during his first year was in essence a massive pander to the Hispanic vote: a proposed amnesty to some of the 3 million Mexicans living and working in the United States illegally.

And when the time came to fill vacancies at the INS during the summer of 2001, the Bush Administration dealt student tracking a few more body blows. James Ziglar, a self-proclaimed libertarian with no immigration expertise, replaced Meissner. And the power-behind-the-throne job of INS policy director went to none other than Stuart Anderson. Close to conservatives in Congress, the darling of Bush's energy secretary, and popular among immigration activists, Anderson was no doubt an easy sell. But he had also done more than perhaps anyone else to strangle student tracking in its crib.

"The best analogy I can draw about Stuart Anderson is something that an INS agent said to me: If you were going to hire someone to run the DEA, you wouldn't pick somebody who favors legalizing drugs," says a top Republican aide on the Hill. "And by putting Stuart Anderson in a ranking position in the INS, you've essentially done the same thing---you've got somebody who favors open borders running the agency that regulates the borders."

Profitable Ambiguities

Would a student tracking system have prevented September 11? Had the full CIPRIS system been even partially deployed, along with the entry/exit system that Anderson and his allies helped delay in 1998, the terrorists' sojourn in the United States might have ended much sooner. Hani Hanjour, who piloted the plane that hit the Pentagon, had enrolled in a community college in California in November 2000 but never showed up for class; CIPRIS would have alerted the INS to his absence almost a year before the attacks.

Similarly, Mohammed Atta's original student visa application would not have languished in a warehouse in Kentucky for six months. Instead, it would have filtered through the FBI, CIA, National Security Agency, and Treasury Department databases, which might have thrown up any number of flags---Atta's trip to Afghanistan in 1999, for instance, or the Al-Qaeda source of his flight-school tuition. Even had Atta been cleared, his busy travel schedule---unusual for a full-time student---over the next year might have drawn notice. When Atta re-entered the United States "out of status" (that is, with an expired visa) in January 2001, the INS inspector who released him after a few questions might instead have sent him back to Madrid. And though Atta was not initially on the State Department's terrorist watch list when he first applied for his visa, CIPRIS's real-time updating would have instantly alerted law enforcement officials as soon as he was added the following year.

"The question isn't whether it can stop one guy," says Mark Krikorian, director of the Center for Immigration Studies, a think tank that advocates tighter immigration controls. "The question is whether it can interfere with large conspiracies"---that is, preventing terrorists not only from entering the country, but also from operating unnoticed upon for long periods of time. "I'm not saying CIPRIS would have stopped September 11," says Tom Fischer, the former INS official who oversaw the system's development in Atlanta. "But it would have raised a lot of flags. It would have scrutinized the process much better."

Which is exactly what the higher-education lobbyists who killed CIPRIS don't want. Technically, student visas are issued by the State Department, which is relatively miserly, particularly toward applicants from Middle Eastern countries. But many applicants get around State by entering the U.S. on tourist visas and then applying at local INS offices---which are typically much less strict---to have their status "adjudicated" upwards. By removing the human element and imposing a strict, uniform standard on all applicants, CIPRIS would have eliminated the loophole, potentially clamping down on the number of foreigners eligible for study in the United States.

But the problem goes beyond tracking students. Keeping terrorists out requires ridding the visa system and border regime of loopholes and gray areas, but immigration groups have a vested interest in just such profitable ambiguities. Immigration lawyers, for instance, "are allergic to clarity," says Paul Donnelly, who worked on the U.S. Commission on Immigration Reform in the early 1990s. A system that made it "clear when someone was here legally---and thus directly entitled to permanent residency and to citizenship---would also mean that it would be clear when someone was here illegally, and thus ought to leave." That meant less work for immigration lawyers, and potentially less wiggle room for businesses looking to hire aliens.

Indeed, while none of the failed reforms---including student visa tracking---required cuts in immigration, all of them would have made it easier to enforce cuts in immigration. Hence, lobbyists and activists committed to the otherwise-worthy goal of allowing in significant numbers of immigrants prefer a dysfunctional border regime to an orderly one. "Those constituency groups just weren't interested in deterring and keeping people out," says a former Justice official. "They would never say it publicly, but they weren't necessarily bothered by the lack of efficiency."

Tweaking the Dud

You'd think that the events of September 11 would have forced the enemies of student-visa tracking to rethink their positions---if not to beg the Lord for forgiveness. But though NAFSA has publicly abandoned its opposition, higher education and other lobbyists, and their libertarian Bush allies, have quietly but persistently tried to undermine the efforts of national security types in the administration and on Capitol Hill. For instance, when Reps. James Sensenbrenner and George Gekas were crafting a strong border-security bill in December, White House lobbyists tried (unsuccessfully) to eliminate certain key provisions, such as tamper-proof biometric visas. When the bill passed anyway and came up in the Senate, insiders on the Hill say that the White House at first tried to get a prominent Republican senator to put a hold on the bill (none would). Then, in April, it ordered Republican leaders in the House to bring up Sensenbrenner's bill for a second vote---this time with an amendment granting amnesty to hundreds of thousands of illegal (mostly Mexican) immigrants. Karl Rove desperately wanted the amnesty measure passed before Bush met Mexican President Vicente Fox. He knew it couldn't pass as freestanding legislation, but might if attached to an immigration-security bill. The fact that this maneuver put the security bill at risk (it passed the second time in the end by one vote) gives you some idea of priorities in the Bush White House.

There are exceptions. Office of Homeland Security Director Tom Ridge is taking immigration security seriously, setting up, among other things, a student-visa working group much like Berez's original task force. But instead of resurrecting the strong system Berez's group came up with, Ridge's group is focused on tweaking SEVIS, the greatly-dumbed-down version. The group might have been thrown off the scent by their liaison at the INS, Peter Becraft---one of the officials who helped derail Berez and his system in the first place. Bush promoted Becraft to deputy INS commissioner after September 11.

Meanwhile, Anderson, as INS policy director, will be responsible for finding ways to implement almost everything else in the Sensenbrenner bill---including provisions like the entry/exit system that he's been lobbying against and has publicly described as "Gestapo tactics." Or not implement them: "For every law enforcement person we talk to---INS, Border Patrol, you name it---Stuart Anderson is sort of at the top of their list," says a Republican staffer in the House. "It's generally their opinion that he's doing everything he can to divert resources away from the enforcement side [of the INS]."

Instead of being disciplined for their efforts to kill the student-tracking system, Anderson and Becraft have actually been rewarded. After the big screwup with the flight school letters became public in March, INS commissioner Ziglar reassigned four top INS managers, even though they had nothing to do with causing the mess. Their reassignment gives Anderson and Becraft even more authority.

The lesson of the 1990s, says Fischer, is that it's not enough to simply pass legislation. The key is implementation---the myriad of staffing and funding decisions that affect whether a project like student tracking is successful. If the Bush Administration can't get the INS management behind student tracking, the program will wither on the vine just as it did under Clinton. And so, in all likelihood, will the whole spectrum of border-security reforms---the entry/exit system, the tamper-resistant visas---that must eventually pass through the INS. "What the INS is doing now," concludes Fischer, "is just smoke and mirrors."

Nicholas Confessore is a senior writer for The American Prospect.


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