Senate Bill Creates Terrorist Loophole

One important lesson our country learned on Sept. 11, 2001, is that state and local police can make the difference between an unsuccessful terrorist plot and an attack that kills nearly 3,000 people. But some in Washington, D.C., still have not absorbed this lesson.

The immigration bill (S. 2611) approved by the Senate last month strips local police officers of arrest authority that could have been used to stop the 9/11 attacks.

In the aftermath of 9/11, we learned that five of the 19 hijackers had violated federal immigration laws while they were in the United States. In other words, they were illegal aliens. Amazingly, in the months before the attack, four of those five terrorists were stopped by local police for speeding. All four could have been arrested—if the police officers had realized that they were illegal aliens.

These were missed opportunities of breathtaking dimension. They demonstrate the crucial role local police can play in the war on terrorism.

The first case is that of Saudi national Nawaf al Hazmi. Hazmi entered the U.S. through Los Angeles International Airport with a B2 tourist visa on Jan. 15, 2000. He rented an apartment with fellow hijacker Khalid al Mihdhar in San Diego and lived there for more than a year. In almost every instance, however, the authorized period of stay for B2 visas is only six months. After July 15, 2000, Hazmi was in the U.S. illegally.

Traffic Tickets

For nearly a year, he managed to avoid contact with law enforcement. Then, on April 1, 2001, he was stopped for speeding in Oklahoma while traveling cross country with fellow hijacker Hani Hanjour. Had the officer making the stop asked a few questions and determined that Hazmi was in violation of U.S. immigration law at the time, he could have arrested him.

Mohammed Atta, the Egyptian ringleader of the 9/11 attacks who was at the controls of American Airlines Flight 11 when it crashed into the World Trade Center, provides the second case.

Atta entered the U.S. on numerous occasions, using B1 and B2 visas, which are for temporary visits for business purposes and for tourism, respectively. His first entry was on June 3, 2000, through Newark Airport. He, too, was unable to avoid contact with local law enforcement.

On April 26, 2001, a police officer in Broward County, Florida, stopped Atta for a traffic violation and ticketed him for possessing an invalid driver’s license. The officer did not know Atta had overstayed his visa on a prior visit to the U.S. Within days of this stop, Atta obtained a valid Florida driver’s license, despite his prior illegal presence in the country. He failed to appear in court for the April 26 ticket, however, and a bench warrant was issued for his arrest.

On July 5, 2001, Atta was pulled over for another traffic violation in Florida—this time in Palm Beach County. The police officer was unaware of the bench warrant issued by the neighboring jurisdiction. He issued a warning to Atta, then let him drive away.

The third case is Hani Hanjour, the Saudi who was at the flight controls of American Airlines Flight 77 when it hit the Pentagon. Hanjour entered the U.S. on an F1 student visa on Dec. 8, 2000, through the Cincinnati airport. He said that he intended to take classes at the ELS Language Center in Oakland, Calif. His immigration violation commenced when he failed to show up for classes. Thereafter, he was in the country illegally.

On Aug. 1, 2001, Hanjour was pulled over for speeding in Arlington County, Virginia. The police officer who stopped him was unaware that Hanjour had violated his immigration status. He issued the hijacker a ticket and let him drive away.

The fourth case is Ziad Jarrah, the Lebanese man at the controls of United Airlines Flight 93 when it crashed in rural Pennsylvania.

Jarrah entered the U.S. on June 27, 2000, through the Atlanta Airport on a B2 tourist visa. He immediately violated his immigration status by going directly to the Florida Flight Training Center in Venice, Fla. He never applied to change his immigration status from tourist to student. He was therefore detainable and removable from the U.S. almost from the moment he entered the country.

Jarrah successfully avoided contact with state and local police for more than 14 months. Then at 12:09 a.m. on Sept. 9, 2001, two days before the attack, he was clocked doing 90 miles per hour on Interstate 95 in Maryland. He was traveling from Baltimore to Newark to rendezvous with the other members of his terrorist team.

The Maryland trooper did not know Jarrah had been attending classes in violation of his immigration status. He also did not know Jarrah’s visa had expired more than a year earlier, a second violation of immigration law that rendered him detainable and removable from the U.S. The trooper issued Jarrah a speeding ticket carrying a $270 fine and let him go. The ticket would be found in the glove compartment of the car, left at Newark Airport two days later.

Civil, Not Criminal

In each of these cases, the police officers who stopped the 9/11 terrorists could have easily determined their immigration status by calling the Law Enforcement Support Center (LESC)—a facility run by the then-Immigration and Naturalization Service in Williston, Vt. The LESC, which is open 24 hours a day, seven days a week, is designed to let local police officers know if a particular alien is legally or illegally present in the U.S.

Adding even greater poignancy to these missed opportunities is the fact that they involved three of the four terrorist pilots of 9/11. Had the police officers detained Atta, Hanjour, and Jarrah, they would have been out of the picture. Moreover, Atta and Hazmi were the operation leader and the second in command, respectively. It is difficult to imagine the attacks taking place with three pilots and the leadership of the 9/11 cohort in custody. However, if even one of the terrorists had been arrested, the plot might have unraveled.

Importantly, all of these transgressions were civil, not criminal, violations of federal immigration law.

In the wake of the attacks, the Department of Justice in 2002 announced an Office of Legal Counsel (OLC) opinion: State and local police officers have the inherent legal authority to arrest any deportable illegal alien, regardless of whether the underlying immigration offense is criminal or civil. This conclusion had already been confirmed by the 10th and 5th Circuits of the U.S. Courts of Appeals.

Section 240D

Moreover, the OLC recognized that this authority had never been “preempted” or displaced by Congress. The 10th Circuit held in the 2001 case of United States v. Santana-Garcia that federal law “evinces a clear invitation from Congress for state and local agencies to participate in the process of enforcing federal immigration laws.” Liberal interest groups such as the ACLU fumed, but the legal authority was clear.

This Department of Justice announcement did not create any new authority—the police had possessed it all along. But it did remind local law enforcement agencies of the crucial role they could—and should—play in the war against terrorism by making immigration arrests.

Police departments across the country responded by exercising their inherent arrest authority with renewed determination. The number of calls to the LESC by police officers who had arrested illegal aliens nearly doubled in the next three years, to over 504,678 in fiscal year 2005. That was an average of 1,383 calls a day.

Local police have beome a crucial force multiplier in the enforcement of federal immigration laws.

Unfortunately, the Senate immigration bill would change all of this. Buried deep in its 800 pages is a provision that most Senators probably did not read. Section 240D would restrict local police to arresting aliens for criminal violations of immigration law only, not civil violations. In other words, if the Senate bill became law, Congress would exercise its power to “preempt” state and local action and strip police officers of arrest authority for civil violations of immigration law.

If the Senate bill had been in effect in 2001, none of the hijackers who had violated immigration law could have been arrested by local police because all of the hijackers had committed civil violations.

Moreover, as a practical matter, the bill would discourage police departments from playing any role in immigration enforcement. Most police officers (indeed, most lawyers) do not know which immigration violations are criminal and which are civil. There is no particular logic to the distinctions. Overstaying a visa (something hijackers from the Middle East are more likely to do) is a civil violation, but marriage fraud is a criminal violation. Which is more dangerous to national security?

Fearful of arresting the wrong type of illegal alien—and getting sued as a result—many police departments would stop helping the federal government altogether. And that is precisely what the ACLU and the American Immigration Lawyers Association have wanted for years. The Senate bill gave them the vehicle they needed.

Hidden Time Bomb

Section 240D is a hidden time bomb. The provision is not labeled “stripping of local police arrest authority.” Indeed, Section 240D is worded so that a person reading the first few lines actually might think that the provision enhanced, rather than diminished, the arrest authority of local police.

However, the wording of Section 240D sends an unmistakable message to the courts: making arrests for criminal provisions of immigration law “has never been displaced … by Federal law,” therefore making arrests for civil provisions has been displaced. No other conclusion can be drawn from Section 240D’s limitation of this authority to criminal violations only.

I recently testified about this terrorist loophole at the field hearings held in San Diego, Calif., by the House Subcommittee on International Terrorism. Articles in HUMAN EVENTS and other publications have also exposed Section 240D for what it is.

So what do the drafters of the Senate bill have to say in defense of this pernicious provision? Nothing intelligible. Asked about Section 240D by HUMAN EVENTS Editor Terence Jeffrey, one Senate Judiciary Committee aide tried to sell this line: “The committee provided a statutory basis for state and local authority on criminal violations. The committee did not address the issue of civil violations, thus maintaining current law.”

Rubbish. The first hole in the aide’s argument is that no “statutory basis” is necessary for state arrest authority in criminal cases. The states’ arrest authority is inherent authority—it comes from the states’ status as sovereign entities. Moreover, the states’ authority to make criminal arrests in the immigration context has never been seriously contested.

The second, and more damning, problem with the aide’s story is that it does not reflect the way the courts have interpreted federal immigration law. A fundamental principle of statutory interpretation, one routinely applied by all courts, is “Inclusio unius est exclusion alterius.” (The inclusion of one is the exclusion of another.) Where a statute expressly describes a particular situation in which it applies (i.e., criminal violations of immigration law), an irrefutable inference must be drawn that what is omitted was intentionally omitted (i.e., civil violations). Section 240D would be interpreted by any court as stripping arrest authority from the police in cases of civil violations. The Senate staffer was either ignorant of this principle or he was attempting to mislead.

A basic rule for all terrorists is to avoid contact with law enforcement officers. Each contact presents an opportunity for the officer to make an arrest and derail the terrorist plot. If the Senate bill were to become law, the power of police to take advantage of those opportunities would be stripped away. Just when the county is starting to make progress in the war against terrorism, the Senate has passed a bill that would unilaterally disarm the men and women on the front line. The only power they would be left with is the authority to write a speeding ticket and watch the terrorist drive away.