Anticipating the Coming Debate Over Foreign and Security Policy

When Washington returns in 2010 we will have a new issue to challenge the effective management of an already incredibly crowded agenda - a review of our intelligence, homeland security and counter-terrorism strategies and performance in the aftermath of the Nigerian-who-got-through. 

The coming debate could radically impact Washington's agenda in 2010. Given that these issues touch on a wide range of Congressional committees and areas of the Administration, and that there is a wide-held belief in DC that the reforms made during the Bush era were not completely effective or well done, it is going to be hard to control and contain the debate once it begins.   That there are so many different Congressional committees involved in this debate is itself a sign of the lack of coherence of the new counter-terrorism regime ushered in during the Bush era, from the DNI to DHS itself. 

The truth is that it may be time for the country to have a more systematic, thoughtful discussion about how to best deal with the global threat of terrorism, the nature of terrorism itself and how the two wars we are already fighting fit into our overall global national security strategy.  Over the last few days you could feel the American people saying - Nigeria? Yemen? Is there no end to this? How does all this relate to what is happening in Iran, Pakistan, Palestine, Iraq and Afghanistan? It has been almost a decade now, with trillions spent, ten of thousands of American causalties, vast new bureaucracies built, a new significant escalation in Afghanistan, extraordinary opportunity costs - and what have we accomplished? Are we safer? What can we do better?  These are reasonable questions for the American people to ask.

If this debate lasts for months - which it could - it may very well knock other important priorities off the legislative calendar this year, a calendar that was already in danger of being incredibly overloaded.  Could we end up spending the coming year finishing health care, and having long and significant debates our economic and security policies, pushing a whole array of other important - but less important issues - off the agenda?

Does all this seem like an overreaction to a lone man who got through Fortress America? Perhaps, but that the vast new intelligence appartus built over the past decade didn't put some now clearly reasonable pieces together to stop a threat, and the attack demonstrated how the global jihadi network has spread beyond the places we are already significantly engaged abroad, has raised some critical issues which now seem inevitably headed towards a big, sustained and perhaps overdue conversation. 

Rather than fighting the consolidation of the 2010 agenda it may be in the interest of the governing party to embrace it, and not look defensive, as if they have other things they would rather be talking about.   Peace and prosperity drive most elections in the US, and 2010 may end up being no different.  The Republicans are already jumping on the Christmas Day attempt, and will no doubt spend the year ahead trying to reorient the national discussion to an area - national security - they feel will advantageous for them.  But given their actual record in the decade just past, and the extraordinary mess they left for others to clean up, the Republicans may rue the day the debate became about national security, for there is no way to have this debate without talking about the epic foreign policy and security failures of the Bush era, something they simply cannot disown.

So rather than wishing this new issue environment away, the President and the Democrats might decide rather to make it their own, and spend their political year making their case for how they hope to bring peace and prosperity to a country desperately seeking it.   They can take on the anarchronistic and disproven arguments of the conservatives head on, defining their vision and plans, and making very clear, where, on the two most important issues facing the nation, it is exactly they want to take us.  Not at all an unreasonable thing for the American people to ask of the governing party in a time of great transition and national challenge.

Happy New Year all. 

And a new year it will be.

Mon PM Update: On his Mother Jones blog David Corn chews over this essay a bit, and provides some thoughts of his own.

DHS To Change Immigration Detention System

The Times has a front page piece today on a very welcome move by DHS to begin turning our shameful immigration detention system into one more in line with traditional American concepts of justice:

The Obama administration intends to announce an ambitious plan on Thursday to overhaul the much-criticized way the nation detains immigration violators, trying to transform it from a patchwork of jail and prison cells to what its new chief called a “truly civil detention system.”

Details are sketchy, and even the first steps will take months or years to complete. They include reviewing the federal government’s contracts with more than 350 local jails and private prisons, with an eye toward consolidating many detainees in places more suitable for noncriminals facing deportation — some possibly in centers built and run by the government.

The plan aims to establish more centralized authority over the system, which holds about 400,000 immigration detainees over the course of a year, and more direct oversight of detention centers that have come under fire for mistreatment of detainees and substandard — sometimes fatal — medical care.

You can find the full story here.

Why DHS Fees Are So Unjust - GAO Finds DHS Did Not Adhere to Federal Accounting Standards and Principles

We knew there was something very wrong with the new fee schedule released in Summer of 2007, now GAO explains why these fees, in fact, have no basis.   

In February 2007, the Department of Homeland Security's (DHS) U.S. Citizenship and Immigration Services (USCIS) completed a study to determine the full costs of its operations and the level at which application fees should be set to recover those costs.  Based on its analysis, in June 2007 USCIS's new fee schedule increased the cost of some applications by over 300%!  For e.g., the cost of applying for Legal Permanent Resident status went from around $300 to $675 ($595 plus an $80 biometric fee) - and that does not include the cost of hiring a lawyer to assist throughout the application process, which most immigrants can't afford (and people wonder why immigrants fall out of status).  The cost of applying for citizenship went from around $192 plus a few additional fees, to $460, plus additional exams and fees.

This GAO report, released today, to investigate USCIS fee review found that the costing methodology USCIS used to develop the fees for each application type did not consistently adhere to federal accounting standards and principles and other guidance (surprise surprise).  The GAO reports:

While federal accounting standards allow flexibility for agencies to develop managerial cost accounting practices that are suited to their needs, they also provide certain specific guidance based on sound accounting concepts. USCIS's methodology was not consistent with federal accounting standards and principles and other guidance in the following aspects: (1) costs paid by other federal entities on behalf of USCIS were not included in its estimates of costs, (2) key assumptions and methods used for allocation of costs to activities and types of applications were not sufficiently justified, (3) assumptions about staff time spent on various activities were not supported by documented rationale or analysis, (4) the cost of premium processing services was not determined, and (5) documentation of the processes and procedures was not sufficient to ensure consistent and accurate implementation of the methodology.

USCIS charges fees for processing the millions of immigration applications it receives each year, and intends to fund the cost of processing and adjudicating them directly through fees paid by applicants.  We hope the Obama Administration reviews this GAO data closely, and that under Secretary Napolitano, one of the first actions taken by this administration is to return fees to a schedule that is affordable and stops serving as an obstacle for people to renew or adjust their legal status.

Weekly Update on Immigration: DHS Has a Really Rough Week, Oops! Bush Did it Again, New Tools in Immigration

The Minnesota race continues, but don't hold your breath - Democratic candidate Al Franken got a boost on Friday in his bid to unseat Sen. Norm Coleman.  On Friday, the state's election oversight board recommended that each of the state's 87 counties review absentee ballots initially rejected as invalid, and submit amended vote tallies that include any ballots found to be wrongly rejected.  The thing is, the board does not have the authority to require counties to conduct such a review, so it would be up to the candidates to issue legal challenges to force the issue should any county decline to re-examine the legitimacy of the disputed ballots.  The Secretary of State projects that more than 1,500 absentee ballots could be found to have been improperly turned away, and if this turns out to be the case,  Al Franken would have to win a relatively small plurality of those ballots to overcome the razor-thin lead held by Coleman following a hand recount of votes cast in the Senate race.

Judiciary Loses Its Lion - In case you missed it, Sen. Ted Kennedy stepped down from his post on the Committee on the Judiciary.  It will be interesting to see who will start to throw their hat in the ring to succeed Sen. Kennedy, and whether that person can - and will - follow Sen. Kennedy's example in the area of immigration reform. 

Tough Week for DHS:   1) DHS Programs caught midstream in the transition - Among them, the controversial SBInet border security system, construction of it is scheduled to begin in March 2009 in Arizona.  After being known in Congress for cost overruns, malfunctions, gaps in management, and miscommunication with Congress, Alice Lipowicz reports on the challenges ahead for SBInet advocates. 
2) A perfect example of the broken immigration system:
  the cleaning service used by DHS Secretary Chertoff to clean his house had undocumented immigrants working there.  What better example of how broken our immigration system really is, and the urgent need to fix it.  At least the Secretary didn't "knowingly" hire "illegals," as did  Lorraine Henderson, an employee of Customs and Border Protection (emphasis added) - Ms. Henderson reportedly was recorded warning her cleaning lady to be "careful" to not get caught.  Who said DHS didn't care?  A former FEMA employee who was sentenced earlier this year for identity theft, with which he funded shopping sprees, has been handed five plus years in federal prison. 
3) Detention center in Rhode Island will get no more
detainees, pending an inquiry into the treatment, and subsequent death, of a Chinese engineer in that detention center. 
4) A judge's denial of DHS's request for a mid-January decision in the case involving DHS's rule pertaining to no-match letters means that President-elect Obama inherits the prolongued legal dispute over the current administration's push to pressure employers to fire undocumented workers.  It is highly unlikely that an Obama administration would pursue the current flawed DHS rule.  In his platform, Pres-elect Obama has proposed an effective verification system as a part of comprehensive reform.
5) TWIC Delays Upset Workers -
U.S. Transportation Security Administration (TSA) and their contractor, Lockheed Martin, had a great many truckers and port workers upset at them as the workers' new biometric Transportation Worker Identification Cards - which they must possess by Dec. 30 in order to be able to work - were delayed.  Some workers in Baltimore reported to TSA on several occasions to pick up their TWIC cards and were turned away due to the volume of people ahead of them.
6) A GAO report released this week
on the planning and execution improvements needed for the US-VISIT program.    

What Immigration Reform does NOT look like - This week President Bush announced regulatory changes to the H-2A agricultural guestworker program that remove important protections for workers and make it easier for employers to bring in foreign workers.  Once again, this is amnesty for unscrupulous employers, not reform.  

Utah Guest worker program to be implemented - The state legislation, SB81 has received ample criticism, and could very well face challenges in the coming weeks and months, prior to its implementation.  

Henryk Kowalczyk's Huffington Post must-read post on why the Immigration debate is about so much more than just immigration.   

Census Updated American Community Survey - The U.S. Census released its 2008 community survey this week, and reiterates the trend mentioned before: immigrants and minorities are moving away from cities and becoming a larger part of the population in suburbs, etc. 

New Tools in Immigration, too - the Migration Policy Institute (MPI) and the New York University School of Law (NYU) launched a project called "State Responses to Immigration" as a joint effort to provide a free, searchable data tool designed to generate information on all immigration-related bills at the state and local level across the nation.

Hate Crimes - Sadly, another Ecuadorian man was killed in New York by a group of men who viciously attacked him.  Jose Sucuzhanay's homicide is under investigation, and it is helping gather civil rights leaders from accross the country to address the spike in hate crimes against Latinos.  Mexicans at the U.S.-Mexico border also report an increase in hate crimes and agression based on nationality and ethnicity.  We see an important social turning point, immigrants - Hispanic ones in particular - fight back against discrimination.  In Tennessee, legal immigrants who had their documents unlawfully taken from them are filing suit.

Interesting article in the Arizona Daily Star on the border fence.  

New IPC Report - The Immigration Policy Center has compiled a major report on minority and New American voter data, as well as motivating issues in the 2008 election cycle.  The report also explores the outlook for immigration reform.

Employers need education on the effects of immigration, too - According to the latest survey released by Manpower, a private Human Resurces firm, 62% of the 4,804 employers in Mexico who were surveyed described themselves as not particularly concerned with the impact of emigration on the Mexican labor market, the remaining 38% does believe that emigration can have a harmful effect on the Mexican economy and cause a potential "brain drain," as well.  An estimated 8 million 5 hundred thousand Mexicans work outside of Mexico.

About 150,000 immigrants from Michoacan are estimated to return to this Mexican state for the Holidays, although there are no estimates as to how many might remain in Mexico.   It is estimated that immigrants going to Mexico for the Holidays will inject about $5 billion into the Mexican economy.

Weekly Update on Immigration: As the Economy Dives, DHS Targets the "Engine of Our Economy"

I. Immigrants continue to head south, Prop. 202 in Arizona remains under scrutiny, and here's an interesting op-ed by Jorge Castañeda linking trade, the economy, and immigration.

II. Fear and loathing continues at McCain rallies.

III. What Constitution? Charlie Savage and the New York Times report (surprise, surprise) the Bush administration has informed Congress that it is bypassing a law intended to forbid political interference with reports to lawmakers by the Department of Homeland Security. The August 2007 law requires that the reports on activities that affect privacy be submitted directly to Congress "without any prior comment or amendment" by superiors at the department or the White House.

IV. DHS Can't Sit Still: Not happy with the results of their brilliant "Deport Yourself" initiative or the outrage caused by USCIS detainee conditions and the mistaken detention of U.S. citizens during ICE raids, on October 23, the Department of Homeland Security (DHS) issued a final administrative rule that sets new procedures for employers who receive "no-match" letters from the Social Security Administration (SSA). Each year, SSA sends businesses ''no-match'' letters with the names of workers whose Social Security number on W-2 forms don't match SSA records. The DHS rule would require employers to correct the discrepancy or fire the worker within 90 days. Failure to comply could bring prosecution and heavy fines.

Setting aside the flawed policy behind this rule for a moment, could Secretary Chertoff have picked a worse time to issue this rule? Definitely not. This rule, made public 11 days before a Presidential election during which minorities and naturalized citizens have the power to swing numerous battleground states, and during which the incumbent Administration's candidate is far behind in the polls, could be interpreted by Hispanics (native and foreign-born) and immigrants of all races and ethnicities as another expression of the Republican party's anti-immigrant stance. Additionally, this "enforcement-only" approach places greater financial and legal burdens on employers, while simultaneously putting workers at risk of losing their jobs during a time of severe economic crisis - the federal government is spending hundreds of billions of dollars trying to rescue the nation's banking, credit and housing markets, yet Secretary Chertoff is pushing ahead with a potentially job-crippling program that, at the end of the day, is ineffective in curtailing undocumented immigration.

Luckily, a court injunction will remain in place against the rule until the Court issues its final decision. The next hearing in this litigation is set for November 21, 2008 to set a schedule to present arguments, so this case won't be resolved anytime soon. Accordingly, SSA will not send any no-match letters to employers until the matter is resolved. Therefore, notify the American Civil Liberties Union (ACLU), the AFL-CIO, or the National Immigration Law Center (NILC) if you know of any employer trying to implement this rule.

This final rule is basically unchanged from its original version, issued in August 2007, despite a court ruling in June of this year that: a) Questioned whether DHS had a reasoned analysis to change its position in regards to employer liability, b) Found DHS had exceeded its authority by interpreting anti-discrimination provisions in immigration law (IRCA), and c) Violated the Regulatory Flexibility Act (RFA) by not conducting the analysis of the rule's impact, as required by law (doh!, that pesky analysis thing).

This rule is misguided, too costly, and ineffective:
1. Originally
SSA no-match letters were an attempt by SSA to correct discrepancies in their records that can prevent workers from getting credit for their earnings. These letters were never intended to be used as an immigration enforcement tool--no-match letters are not evidence of an immigration violation. As stated in a judicial opinion, no-match "does not automatically mean that an employee is undocumented or lacks proper work authorization. In fact, the SSA tells employers that the information it provides them ‘does not make any statement about . . . immigration status.'"

2. The implementation of this rule is far from a solution - it will only increase unemployment at a time of severe economic crisis.
a. According to DHS, it would cost $36,624 a year for the largest small businesses to comply, not including the costs of termination and replacement of workers. It could have a staggering impact on businesses caught between the financial and legal liability they would face if they fail to comply, and the financial and legal liability they would face for wrongly firing a worker whose name was listed in error. If implemented, the rule also could have a chilling effect on millions of immigrant workers in construction, agriculture and service industries at a time when the U.S. economy can ill afford it. Many businesses, too, fearing government prosecution will decide to dismiss or not hire workers that they suspect may have an immigration problem.

b. An economic analysis by the U.S. Chamber of Commerce estimated that under the new rule, 165,000 lawful U.S. workers could lose their jobs, at a cost to employers of approximately $1 billion per year. In her testimony before the Immigration Subcommittee, U.S. Representative Gabrielle Giffords discussed the effects of mandatory use of E-verify at the state level in Arizona, and reported that between October 2006 and March 2007, 3,000 foreign-born U.S. citizens were initially flagged as not authorized to work.

c. Under a mandatory E-Verify program, USCIS has estimated that annual employer queries of newly hired employees would be an average of 63 million. A GAO study from June 2008 found that about 7% of the queries initially appear as a "no-match" to SSA, and about 1 percent cannot be immediately confirmed as work authorized by USCIS, and:

The majority of SSA erroneous tentative nonconfirmations occur because employees' citizenship or other information, such as name changes, is not up to date in the SSA database, generally because individuals do not request that SSA make these updates.

Taking the modest estimate of 63 million queries per year, at the 7% initial error rate found by GAO, that translates to 4.41 million potential no-matches, i.e. persons who could be pushed to unemployment, again, at a time when the national unemployment rate is above 6%. If we extrapolate 7% unconfirmed queries to the existing civilian workforce - over 154 million people - the number jumps to 10.7 million people in danger of losing their jobs.

3. Mandatory e-verify would require an increase in capacity at USCIS and SSA to accommodate the estimated 7.4 million employers in the U.S. The GAO study found that e-verify would cost a total of about $765 million for fiscal years 2009 through 2012 if only newly hired employees are queried through the program and about $838 million over the same 4-year period if both newly hired and current employees are queried.

A study performed by Dr. Richard Belzer, former official of Office of Management and Budget, concluded that this program would cause an estimated increase of 610,000-2.7 million visits per year to SSA. He also pointed out that DHS made no estimate of the authorized worker unemployment that would result from erroneous no-match letters.

4. The rule is ineffective because it ignores unintended consequences:
a. Instead of discouraging undocumented immigration, the rule will only increase identity theft by making it more valuable for unauthorized workers to have genuine social security numbers.
b. The rule will have to be followed by more rounds of rulemaking, for example, how to deal with duplicate instances of SSA numbers, in addition to "no-match."
c. The rule will shift unauthorized workers into independent contracting and the "underground" economy, which will only risk pushing wages down during a time of economic crisis.

5. E-Verify is vulnerable to acts of employer fraud and misuse. GAO found:

- The current E-Verify program cannot help employers detect forms of identity fraud, such as cases in which an individual presents genuine documents that are borrowed or stolen.
- As USCIS works to address fraud through data sharing with other agencies, privacy issues may pose a challenge. In its 2007 evaluation of E-Verify, Westat reported that some employers joining the Web Basic Pilot were not appropriately handling their employees' personal information...and anyone wanting access to the system could pose as an employer and obtain access by signing a MOU with the E-Verify program.
- Westat reported that some employers used E-Verify to screen job applicants before they were hired, an activity that is prohibited. Additionally, some employers took prohibited adverse actions against employees-such as restricting work assignments, reducing pay, or requiring employees to work longer hours or in poor conditions-while they were contesting tentative nonconfirmations.

We've tried the enforcement-only approach for decades, and it has not curtailed undocumented immigration. Rep. Zoe Lofgren said it best during our latest forum on Immigration, as DHS has focused its resources on raids, there's been a 38% decline in prosecution of organized crime at the border, so "we've ended up with an expensive, stupid system that has not solved" the issue of a broken immigration system.

A verification program without comprehensive reform is ineffective. NDN has long advocated for the importance of matching legal immigration visas with the economic need for immigrants as a way to curtail undocumented immigration. Only by moving immigrant workers through legal channels, providing immigrants already here with an earned path to citizenship, reducing the backlog in family visas, and developing a sensible system for future flow will immigration will become manageable, and enforcement at the border and at the workplace will become more effective.

Even the Chief of the Border Patrol, David Aguilar agrees, "We cannot protect against the entry of terrorists and the instruments of terror without also reducing the clutter....To most effectively secure our border, we must reform our immigration system to relieve this pressure. We need comprehensive immigration reform."

A New Immigration Strategy - Deport Yourself!

This past Sunday, Assistant Secretary for Customs and Immigration Enforcement (ICE), Julie Myers, announced a new pilot program called "Operation Scheduled Departure" on Univision's political show, Al Punto. The idea is to "invite" all the undocumented immigrants who have already undergone immigration proceedings and have been issued a removal order (called non-criminal fugitives by ICE) to approach their local ICE office to begin their deportation. Why didn't we think of that before?! ICE reports that there are 400,000 people who currently fit that description. People who are not eligible for the program are all the undocumented immigrants who have not yet undergone removal proceedings (i.e., have not been caught), and any with a criminal conviction. However, when Ms. Myers "invited" all the viewers of the channel with the largest Hispanic audience in the country to participate, she omitted this detail, making it sound like anyone who is currently undocumented can participate. Not to mention, the policy is contradictory - during this same interview, Ms. Myers herself stated, "When I speak to people in the [ICE] detention centers and I ask if they plan on coming back [to the U.S.], they say ‘of course I'm coming back - that person always gives me a job.'"

During a conference call today with Congressional staffers, ICE officials had a hard time selling the program. Before promoting this program among people in their districts, staffers understandably pressed for answers: "What would be the benefit of participating?" DHS says: Well, they'd avoid risking being caught in a raid (another one, I guess, because they've already been caught, right?) and this way they'd have time to make "all necessary arrangements". Brilliant! It sounds like a concierge service. "Would turning oneself in count towards a legal status?" No. "Would participating in the program grant reprieve from the statutory bars that prohibit re-entry into the U.S.?" No. "Could people just leave of their own accord, without reporting to ICE, and then report their departure to a consulate abroad?" Sure, that's still their choice. Hmmmm...I could almost hear everyone on the phone scratching their head. "What about countries that refuse to issue travel documents, or won't accept their nationals back?" Yeah, then those folks would remain in the U.S. under ICE supervision indefinitely. Sounds like they've really thought this through. ICE could not provide me with the cost of the pilot program, and they couldn't tell us what results they expect to have. So I still don't understand the point of this program - a program that will only be in five cities (Santa Ana, CA, San Diego, CA, Chicago, IL, Pheonix, AZ, and Charlotte, NC), to - ideally - schedule the deportation of 400,000 people during a three-week window (August 5-27). I agree with Doug Rivlin, from National Immigration Forum, "It's pure fantasy." Even Ira Mehlman, spokesman for the Federation for American Immigration Reform, the largest anti-immigrant lobby group, agreed, "The government would have to offer some kind of incentive to entice immigrants to sign up."

Yet another example of the short-sighted, uninformed, and inadequate policies of this Administration. To us at NDN, this is not a solution to the problem. Instead of laughable policies like this, DHS should channel its resources towards dealing with its own backlog, which is keeping many from obtaining legal status, and it should help Congress pass comprehensive immigration reform to address the flaws in immigration law, provide a pathway to citizenship for those who fulfill certain requirements, and deal with the issue of future flow of immigrants.

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