Despite the federal government’s increased push to tie immigration enforcement to na- tional security, states continue to adopt policies that fly in the face of the goals of federal immigration law. Under pressure from foreign governments, some employers and open borders activists, many states and local jurisdictions are offering safe harbor to illegal aliens.

The members of the next team of Al-Qa'ida terrorists who find entry into the United States will have an easy time obtaining false documents, because they are easily and inexpensively available to illegal aliens. They may even be able to obtain foreign ID cards that local jurisdictions are encouraging illegal aliens to obtain and use. If they fall into the hands of local authorities, they may be released back into society because of local policies that prevent notification of the immigration authorities. (Several of the 9/11 hijackers slipped unnoticed through the hands of local officials.)

While the federal government has not yet fully slammed shut the doors used for illegal immigration, it is the states and local governments that are rolling out the welcome mat for illegal aliens, once they are here.

Unless the White House exerts much stronger leadership in the area of immigration controls, the state patchwork of inconsistent policies will continue to be a primary avenue used by foreign terrorists to exploit weaknesses in the national immigration control sys- tem. Congress must also act with an unswerving resolve to ensure strong, reliable immi- gration controls.

Introduction:

The litany of intelligence, law enforcement, and immigration policy failures that contributed to the disaster of September 11, 2001, is still being tabulated, and digging into the causes of the attacks will undoubtedly keep scholars busy for decades to come. But, in the past two years, the federal government has worked to diminish the likelihood that we can be victimized by terrorists in the future.

However, even as the federal government makes progress in turning back several decades of tolerance for wide-scale illegal immigration, many states and local jurisdictions have moved in the opposite direction.

Advocates for mass immigration and for illegal aliens have launched a major campaign state-by-state and locality-by-locality to obtain the adoption of measures that will ad- vance their agenda. The absence of federal policy and the perception that some of the issues are symbolic, rather than substantive, have led many local policymakers to support these proposals. In the process, many of the gains at the federal level in securing a safer America are being undermined at the local level.

While the federal government routinely uses the threat of withholding funds to state and local governments that do not comply with national efforts to achieve highway safety or high educational standards, Washington has, thus far, declined to punish state and local governments that are recalcitrant in the effort to promote homeland security. As a result, local officials feel free to adopt policies that run counter to federal efforts, without fear of retribution from Washington.

Sanctuary Policies:

Sanctuary is a religious term that dates back to biblical times, when places of refuge were set up to protect people fearing retribution for civil and criminal offenses. Most recently, in the context of immigration matters, some American churches began granting what they called sanctuary in the 1980s to Central Americans who had entered the U.S.A. illegally during a period of civil unrest in their homelands. Later, entire cities de- clared themselves safe harbors for anyone seeking to evade U.S. immigration laws and instituted policies that specifically prohibited civil servants, including police, from cooperating with federal immigration law enforcement authorities.

In the face of stepped-up federal efforts to better enforce immigration laws in the aftermath of September 11, a number of jurisdictions have reaffirmed and even intensified their non-cooperation policies protecting illegal immigrants. Just within the past 12 months, city councils in Seattle, Washington, and Portland, Maine, adopted non-coopera- tion policies requiring local police to ignore evidence of an illegal alien’s status, even if that information was revealed in the normal course of their duties.

Even in New York City, where City Hall sits just a few blocks from Ground Zero, local officials needed to be forced by the courts to abandon a 1989 mayoral decree that was specifically designed to obstruct federal immigration law enforcement. In spite of the fact that such policies may have aided the very people who flew jetliners into the World Trade Center, it was not until 21 months later, when the U.S. Supreme Court refused to overturn an Appeals Court ruling against the city’s non-cooperation policy, that Mayor Michael Bloomberg reluctantly rescinded it.

But even the disaster of September 11 and actions of the courts have not put a stop to efforts to thwart immigration law enforcement in New York. A bill submitted in the City Council in July, 2003, seeks to resurrect the sanctuary provision by banning city employ- ees from reporting illegal aliens to local police or federal authorities. And that same month, in Washington, D.C.—the other “ground zero” city—police chief Charles Ram- sey took pains to reassure the Latino Lawyers Association that the police were not backsliding on a 1984 executive order that prohibits D.C. government employees from getting involved in immigration matters.[1]

Sanctuary proponents on city councils all across the country are undeterred by federal statutes adopted in 1996 that explicitly protect the rights of local government employees to cooperate with federal immigration authorities without fear of retribution. That law specifies, “Notwithstanding any other provision of federal, state or local law, a federal, state, or local government entity or official may not prohibit or in any way restrict any government entity or official from sending to or receiving from the Immigration and Nat- uralization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” [2]

Resistance to Vital Portions of the USA Patriot Act:

Even as many politicians around the country pillory the country’s national security agen- cies for their failures leading up to the attacks, many are willfully refusing to assist in intelligence gathering.

Some 165 communities nationwide have gone on record in condemning the USA Patriot Act, which requires federal intelligence agencies to work in concert with local govern- ments and law enforcement to ensure sufficient resources to monitor terrorism suspects —and have instituted non-cooperation policies with federal efforts to engage in wiretapping activities that will allow them to monitor suspected terrorists effectively in an age of easily disposable cell phones. They are also opposed to provisions of the USA Patriot Act that allow the government to monitor Internet usage by suspected terrorists in public libraries. The town of Arcata, California, has gone so far as to punish municipal employ- ees who cooperate with federal efforts, or who fail to notify the city manager in the event that federal law enforcement asks for their help.[3]

The Poor State of Cooperation Between Local and Federal Law Enforcement:

With an estimated 8-11 million illegal aliens residing in the U.S. and fewer than 2,000 federal agents to carry out interior enforcement responsibilities, it is essential that local police be trained to augment federal enforcement of immigration laws. The thousands of state and local law enforcement officers nationwide are potentially powerful allies in the fight against terrorism, but their potential is being wasted.

Several of the September 11th terrorists had been stopped by local or state police for driving infractions. If local police had had access to a national database that would have identified them as terrorist suspects (two were on a terrorist watchlist), they could have been detained for investigation.

While the federal government has placed greater emphasis on its own enforcement ef- forts, it has demonstrated a marked reluctance to require cooperation from state and local governments. An amendment to a DHS appropriations measure, introduced by Congressman Thomas G. Tancredo this past June, an amendment that would have prohibited any appropriated funds from going to any local jurisdiction that officially bars its local police from cooperation with federal immigration enforcement, was soundly de- feated in the House.[4] The amendment, which would have merely reinforced already existing federal laws, lost by a vote of 322-102.

The concept of enlisting the assistance of local law enforcement to detect and detain im- migration law violators pre-dates 9/11. Section 133 of the Illegal Immigration Reform and Individual Responsibility Act of 1996 authorizes the Attorney General of the United States to provide training to local police and sheriffs departments that request it. Under former Attorney General Janet Reno, the program lay dormant to the extent that regulations for implementing it were never even written.

After the events of 9/11, a number of jurisdictions began to show renewed interest in Section 133 training. Moreover, the current U.S. Attorney General, John Ashcroft, who like his predecessor had shown little enthusiasm for the program before the terrorist attacks, has expressed support for its implementation. In early 2002, Florida signed a Memorandum of Understanding that provided for the training of 35 state law enforce- ment officers. South Carolina expressed similar interest in having its law enforcement personnel receive immigration enforcement training.[5] Most recently, Alabama, as part of that state’s efforts to enhance homeland security, began a training program for its law enforcement personnel.

Yet, although the Justice Department has, on several occasions, made it clear that local police already have the authority to enforce federal immigration laws, some jurisdictions continue to oppose their police officers becoming involved in enforcement of immigration law. Numerous municipal councils--including those in Baltimore, Maryland, Denver, Col- orado, and Detroit, Michigan--have advised their police departments not to enforce federal immigration laws, unless there is reasonable cause to suspect additional criminal be- havior.

To facilitate cooperative ventures across the country, Representative Charlie Norwood (R-Georgia) has introduced legislation that would provide local governments with the necessary resources to train officers and detain criminal illegal aliens. The bill, H.R. 2671, would act as a force multiplier by offering incentives for state and local law enforcement to assist the DHS in enforcing immigration laws.[6]

Local Encouragement of Illegal Immigration:

Because virtually nothing has been done to stop the flow of illegal entrants, the foliage of an illegal alien population of eight to 12 million continues to expand and become an increasingly hospitable environment within which international terrorists may easily seek cover as they plan their next attack on the American public.

What’s more, states and local jurisdictions are passing policies explicitly designed to make it easier for illegal aliens to live in our communities.

Driver’s Licenses--The Keys to the Kingdom:

Two years after 19 people used state-issued driver’s licenses to board four airplanes and turn them into weapons of mass destruction, it is still possible in many states for anyone to acquire these documents, regardless of immigration status. Even though Virginia, New Jersey, and Florida—the states that issued licenses to the terrorists—have tightened their policies since September 11, 2001, the effort in other states to make driver’s licenses available to illegal aliens has intensified.

In the absence of a uniform federal document, state-issued driver’s licenses serve the function of proving identity. In addition to granting permission to operate a motor vehicle, the licenses are used for banking, check cashing, boarding airplanes, demonstrating proof of employment eligibility, and many other purposes. They are also accepted by immigration inspectors for letting U.S. travelers to return to the country after traveling to Canada, Mexico, or a Caribbean destination that does not require a U.S. passport for entry.

Thus, it is crucial that states recognize the vital national security role these documents have come to play. If there was any question, the 9/11 attacks should have put it to rest: All 19 of the 9/11 terrorists possessed one or more of state driver’s licenses, which they used to blend in, rent apartments, open bank accounts, and, ultimately, to board the air- planes they intended to crash.

Yet, not only are driver’s licenses still available to illegal aliens in some states, but sev- eral states are loosening restrictions on obtaining driver’s licenses, and even explicitly spelling out that they will permit illegal aliens to receive them.

Currently 13 states allow illegal aliens to obtain driver’s licenses: Alaska, Connecticut, Idaho, Louisiana, Montana, Nevada, New Mexico, North Carolina, Ohio, Rhode Island, Tennessee, Utah, Washington, and West Virginia. Because of reciprocity rules, these state-issued documents must be honored in every jurisdiction in the country. Because there is no central database that serves as a repository of driver’s license information, states cannot easily check each other’s databases in order to confirm a person’s identity and driving history. And under reciprocity agreements, once a driver’s license is obtained in one of these states, it can be turned in for a new license in another, perhaps more responsible, state.

Recently and most notably, the California Assembly passed and Governor Gray Davis signed legislation authorizing the issuance of licenses to illegal aliens.

An even longer list of states is being confronted with proposals and legislation to grant driver’s licenses to illegal immigrants.

Congress, in 1996, urged the adoption of uniform standards to increase the security of driver’s licenses. But in the absence of federal guidelines, the battle is now being waged in state capitols all across the country.

While the proponents of driver’s licenses for illegal aliens contend that their efforts are guided by public safety concerns and the need to make sure all drivers on the roads are competent and insured, their actions belie these assertions. Advocates for granting li- censes to illegal aliens have rejected proposals that would limit the function of the docu- ment to operating an automobile. Ideas aimed at putting identifying features on the li- cense itself that would identify the bearer as a non-resident or a temporary resident are disparaged and rejected as “scarlet letters.” Similarly, proposals to make the expiration of driver’s licenses issued to temporary legal residents concurrent with the expiration of their temporary visas have been deemed unacceptable by those wishing to expand the number of people with access to these documents. Consequently, many temporary residents retain valid state-issued identity documents that extend long beyond their authorized stay in the U.S.

In Connecticut, for example, a driver’s license is valid for six years. Lawmakers in the State Senate approved legislation requiring licenses issued to temporary residents to expire at the end of a foreigner’s authorized stay. However, the House never acted on the bill, and it died. In the opinion of Connecticut’s governor, John Rowland, who is seeking to use his executive authority to change the policy, the present situation is an invitation to abuse: “Take someone who is only in for six months, they can literally use the license for the next five years because we’re giving six-year licenses now… They can use that license for identification purposes, work purposes, and other kinds of uses.”[8]

The decision by 13 state legislatures and governors to give driver’s licenses to people in this country illegally—people about whom we know nothing—directly hinders federal ef- forts to address the homeland security threat.

On the positive side, federal legislation, H.R. 655, introduced by Representative Jeff Flake (R-Arizona) would establish some uniform national standards for issuing licenses to temporary U.S. residents. The Flake bill would deny federal recognition to any state driver’s license unless the state limits the validity of licenses issued to foreign visitors to the duration of their authorized stay in the United States. A similar measure, H.R. 1121, introduced by Representative Eric Cantor (R-Virginia), would require temporary residents to provide a valid non-immigrant visa to the state DMV at the time they apply for the license, and like the Flake bill, would require that the document expire simultaneously with the visa.

Matricula Consular ID Cards--Outsourcing Homeland Security to Foreign Governments: The inability to truly verify the identities of millions of illegal residents of the United States poses an ongoing threat to security. But in the face of a decided lack of political will to address large-scale illegal immigration, the acceptance of foreign consular identity documents is increasing in jurisdictions throughout the country.

Over a year ago, the Mexican government initiated an aggressive campaign throughout the U.S.A. to convince state and local governments, local law enforcement authorities, and banks to accept its matricula consular cards (identification cards issued by Mexican Consulates) for establishing identity, opening bank accounts, and various social service uses.

The cards have drawn heated criticism because they are issued to illegal aliens who can- not access U.S.-issued identity documents. At a recent House of Representatives Immigration Subcommittee hearing on the matricula consular, the FBI and the Department of Justice testified that the cards are not a reliable form of identification and pose “major criminal threats” and a “potential terrorist threat.”

Yet many local jurisdictions have passed laws accepting the card. Some banks, money transfer agencies, and other private companies have followed suit, announcing that they would recognize the documents for purposes such as check cashing, other banking, and airline travel. (The enormous population of illegal aliens—between nine and eleven mil- lion—is seen by banks as a potentially lucrative client base for the handling charges on the money they are sending out of the country.) And following the lead of Mexico, other countries, as diverse as Guatemala, El Salvador, and Poland, have launched consular ID programs for their nationals.

Matricula consular ID cards prove one thing with a reasonable degree of certainty: A person using one of these documents as a primary identity document is in the country illegally. A foreigner who is a legal permanent resident of the United States has a U.S.- issued identity document and therefore has no need for a consular card as proof of identity. A legal temporary foreign resident would possess a valid travel document with the appropriate visa and entry permit. Thus, the only people who would have motivation to go through the process and expense of acquiring one of these documents, would be people residing here illegally.

The FBI and the DHS have both gone on record saying that the Mexican-issued matricula consular cards can be counterfeited, and the issuance procedures used by Mexican consulates are inadequate to assure that they truly identify the bearer, or even that the bearer is a citizen of Mexico. Cases have been cited in which alien smugglers have been found in possession of multiple consular-issued matricula cards with the same photograph, but different names. In one case, an Iranian citizen—a country with documented ties to terrorist organizations—was found illegally in the United States in possession of a Mexican-issued consular ID. In Chicago, in July of 2003, police arrested three men for selling matricula consular cards allegedly obtained from a janitor at the Mexican consulate.[9]

Yet, despite the near certainty that people presenting a foreign consular ID as their pri- mary form of identification are in the country illegally, and the mounting evidence that the information contained on the cards themselves is far from reliable, there is a growing trend toward acceptance of these documents by local public and private entities in the U.S. Some 800 police and sheriffs departments, along with numerous city and county governments and 13 states have adopted policies recognizing the Mexican consular doc- ument as a valid form of identification.[10]

In the absence of a federal policy regarding the acceptance of foreign consular-issued identity documents, policies are being set, community-by-community, city-by-city, and state-by-state, based more on local political considerations than on national security imperatives. Thus, as in the aforementioned case of the Iranian citizen with the Mexican consular ID card, the decision to hold or release this individual would hinge on which police department he might happen to be dealing with.

But even the federal government’s policy is schizophrenic. The General Services Administration (GSA) briefly experimented with the idea of honoring the Mexican consular card for security purposes for admission to the federal court building in San Francisco. Public protest and questions from Congress resulted in the suspension of the policy in January, but a GSA-led interagency panel is still studying the matter and has not made any final recommendations.

There are sharp differences within the federal government about whether foreign consular IDs should be accepted. DHS and the Department of Justice—the two executive branch departments most directly involved in combating international terrorism—both oppose the acceptance of consular IDs as valid identification in the U.S.A. These depart- ments, however, are at odds with the Treasury Department, which, under pressure from the banking and finance industry, has supported the acceptance of consular IDs.

All the investigations into the failures that led up to 9/11 cite the ease with which the ter- rorists were able to move large amounts of money through U.S. banks, in order to finance the preparation and execution of the attacks. Nevertheless, the lure of billions of dollars of remittances that are annually sent out of the country through unregulated and unscrupulous check cashing services has led the financial services industry to press for easier access to this business. Key to getting in on this multi-billion dollar business is the ability of these institutions to accept documents that may be available to illegal immi- grants. The Treasury Department issued a rule permitting precisely that in 2003, al- though public and congressional opposition to acceptance of the matricula consular caused the department to reopen the issue for public comment.

In an effort to set firm standards for document security, both within the federal govern- ment and throughout the country, congressional legislation has been introduced that would limit the acceptance of foreign consular IDs. Representative Elton Gallegly (R- California) has introduced a bill, H.R. 687, that would prohibit federal officials from rec- ognizing the cards for official purposes. According to Gallegly, there is no “issue that is potentially as dangerous to our sovereignty and provides a tremendous opportunity for terrorism in this country than this form of documentation.”[11] A second bill, H.R. 502, authored by Representative Tom Tancredo (R-CO), would bar any federal executive, legislative, or judicial official from accepting any identification document not issued by a federal or state authority or verifiable by a federal law enforcement, intelligence, or homeland security agency. Neither of these bills has been acted on to date.

Politics & Political Expediency--Getting in the Way of Homeland Security:

The failure by many state and local governments to recognize the connections between the terrorist threat to national security and the growing illegal alien problem is undermining the steps that have been taken toward improving our security.

In the absence of clearly articulated interior enforcement policies, the effort to identify, locate, and apprehend would-be foreign terrorists has become haphazard at best and highly politicized at worst. Without leadership from Washington, the states and local jurisdiction are patching together their own hole-filled quilt of policies, one that is leaving the entire country vulnerable.

While some police departments are moving to cooperate more closely with the federal government to enforce immigration laws, others have taken precisely the opposite tack. While some states are making an effort to protect access to vital identity documents, others have rushed to protect “non-threatening” illegal aliens by giving them these vital identity documents, or by recognizing those issued by foreign governments.

It is the clear responsibility of national policymakers to take the lead on immigration policy and preempt misguided local policies. But local officials, too, have an obligation to think through the connection between unchecked illegal immigration and national security and adopt commensurate policies that support the national effort.

Policy Recommendations:

Sanctuary Policies:

Congress should authorize the Justice Department and the Department of Homeland Security to penalize cities that violate federal law by restricting local law enforcement officers from furnishing information to DHS on illegal aliens. An example of such penalties would be cutting off federal funds for reimbursement of costs for jailing illegal aliens.

Federal-Local Cooperative Agreements:

State policymakers should support efforts to form cooperative agreements with the federal government for training local law enforcement officers in immigration law enforce- ment.

The Justice and Homeland Security Departments should proactively encourage state governments to enter cooperative training programs.

Congress must enact legislation similar to the Clear Law Enforcement for Criminal Alien Removal (CLEAR) Act, H.R. 2671, which would facilitate more than 600,000 state and local law enforcement officials becoming able to enforce immigration laws during the course of their regular duties.

Mandate Integrity for Driver’s Licenses:

Congress should enact national standards for the issuance of driver’s licenses by the states. The driver’s license is too fundamental as an identity document to tolerate to- day’s haphazard approach to security features and policies that put these documents in the hands of people in the country illegally.

Congress should pass H.R. 655, now in the House, to establish uniform national stand- ards for issuing licenses to temporary U.S. residents and to deny federal recognition to any state driver’s license unless the state limits the validity of licenses issued to foreign visitors to the duration of their authorized stay in the United States.

State policymakers should ensure illegal aliens are ineligible for state driver’s licenses.

Ban Acceptance of Foreign Government Identity Documents for Most Purposes:

The U.S. Senate should adopt the standards for regulating foreign government-issued identity cards that were enacted as an amendment to the Foreign Relations Authoriza- tion Act (H.R. 1950) in the House. Congress should adopt legislation to preclude federal recognition of foreign-issued identity documents other than passports, similar to H.R. 502 and H.R. 687.

State and local policymakers should refuse to recognize foreign government-issued local identity documents. They must recognize that U.S. government-issued identity docu- ments and immigration documents offer the best security that aliens are who they say they are and are in the country legally.

The Treasury Department should withdraw its proposed regulation that would authorize financial institutions to accept foreign government identity documents issued locally for opening new accounts.

Other Areas of Concern:

Our security services are overloaded with an unprecedented number of incoming foreign visitors and immigrants, both legal and illegal. At this critical juncture in our efforts to improve national security, we cannot afford a business as usual approach. National se- curity requires a coordinated package of measures designed to gain control over our borders by deterring illegal immigration and to reduce the massive wave of legal immi- gration. The Mass Immigration Reduction Act (H.R. 946) introduced in the House is designed to accomplish this agenda.

International terrorists know no boundaries. They may carry legitimate or stolen pass- ports from any country. Therefore, continuation of the visa waiver program for certain countries can no longer be justified, and it should be eliminated.

Finally, most of all, we need unwavering leadership from the White House. Without direct guidance from Washington on these issues, the states have been left to patch together their own policies, many times driven by concerns far removed from security considerations. As a result, the work being done at the federal level is being undone and undermined at the local level.

End Notes:

[1] “Brian DeBose, “Police Won’t Ask Aliens of Status,” Washington Times, July 29, 2003.
[2] Section 642(a) of the Illegal Immigration Reform and Immigration Responsibility Act and Section 5434 of the Welfare Reform Act.
[3] “Communities Shun Patriot Act,” Washington Times, July 21, 2003.
[4] Ibid.
[5] “Norwood Bill Rekindles Debate On Role of Local Law Enforcement Units,” The Hill, July 15, 2003.
[6] Congressional Record: July 9, 2003 [Pages H6455-H6459].
[7] “Rowland Considering Executive Order Limiting Driver’s Licenses,” Associated Press, June 12, 2003.
[8] Testimony of Steve McCraw, Assistant Director of Intelligence, Federal Bureau of Investigation, before the U.S. House Committee on the Judiciary, Subcommittee on Immigration, Border Security and Claims, June 26, 2003.
[9] “Janitor Called Link to Fake ID Ring,” Chicago Tribune, July 17, 2003.
[10] “Mexican ID Cards Under Fire,” San Francisco Chronicle, January 25, 2003.
[11] “House GOP Decries Use of Mexican IDs: Lawmakers Debate Cards’ Potential to Aid Terrorism and Illegal Residence,” Orange County Register, June 20, 2003.

The foregoing report was originally published by the Federation for American Immigration Reform and appeared on the organization's Internet website at www.fairus.org.

The Federation for American Immigration Reform (FAIR) is "a national, nonprofit, public interest organization of concerned citizens united by their belief in for immigration reform." The organization seeks to improve America's border security, stop illegal immigration into the U.S.A., and reduce the current level of immigration to one that is consistent with America's national interest.

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