Senate at Impasse on Homeland Security Bills

IMMIGRATION LAW & POLICY

Congressional Developments

SENATE AT IMPASSE ON HOMELAND SECURITY BILLS
Immigrants' Rights Update, Vol. 16, No. 6, October 21, 2002

As the U.S. Congress adjourned until after the upcoming November election, proposals to establish a Dept. of Homeland Security remained at an impasse. Under all the proposals under consideration, the new department would merge all or part of 22 agencies, representing the biggest government reorganization in 50 years.

The House of Representatives passed a homeland security bill in July 2002. Two competing proposals have been introduced in the Senate, one by Sen. Joseph Lieberman (D-CT) and the other by Sens. Phil Gramm (R-TX) and Zell Miller (D-GA). The Gramm-Miller bill has the Bush administration's support. After the Senate passes a homeland security bill, a final version reconciling the House and Senate versions will have to be drafted in a conference committee, approved by both chambers of Congress, and then signed by the president.

Civil service and collective bargaining issues are at the heart of the current disagreement, with Democrats siding with labor and Republicans siding with the president, who wants broad management powers. Immigration issues have not been at the forefront of the recent discussions, but immigrants have a good deal to be concerned about. The Immigration and Naturalization Service will be reorganized no matter which bill passes, and immigration services and enforcement will likely be housed in an agency whose principal mission is to combat terrorism. This departmental orientation will put noncitizens at grave risk of civil rights violations, but neither bill currently before the Senate goes far enough to protect against such violations. The Gramm-Miller bill contains no civil rights or privacy protections, and the Lieberman bill's protections are weak.

The new agency will be huge and invested with an unprecedented concentration of government powers. Checks and balances provided by oversight, investigations, and public reporting of civil rights and privacy violations will be essential to prevent abuse of these powers. Because of the department's mandate, noncitizens will be regarded as possible terrorists, placing them at particular risk of civil rights violations. The proposed legislation includes few protections or mechanisms to redress abuses. Government measures implemented after Sept. 11, 2002, including secrecy, closed hearings, prolonged detentions, and racial profiling, directly affect noncitizens. Post-Sept. 11 initiatives to combat terrorism include the creation and sharing of databases with massive personal information and the use of new and untested methods of identification, including biometric measures. The chances are high that mistaken information will be inputted into the databases and distributed, but such errors will be difficult and cumbersome to correct. Such erroneous information is very likely to lead to false accusations, as well as unnecessary invasions of privacy.

NILC has joined with other national organizations in an ad hoc group that is working to encourage government officials to incorporate strong civil rights protections in creating the new agency. These groups include the American Civil Liberties Union, the Leadership Conference on Civil Rights, the Mexican American Legal Defense and Educational Fund, the National Council of La Raza, the Open Society Policy Institute, People for the American Way, Human Rights Watch, and the American Immigration Lawyers Association.

Civil rights and privacy are not the only concerns for immigrants, as INS reorganization is also in question. Many immigrants' rights advocates fought unsuccessfully to keep immigration functions out of the Homeland Security Dept. altogether because they have nothing to do with antiterrorism. Even the Lieberman bill would house these functions in the new department, but—importantly—would keep immigration services and enforcement together in a separate division in the agency. The Gramm-Miller bill, in contrast, would separate the Border Patrol and inspections from immigration services. This separation may make coordination difficult, relegating immigration services to a poor and distant relative of the agency's antiterrorism efforts.

Both the Lieberman and the Gramm-Miller bills transfer the care and custody of unaccompanied immigrant minors to the Office of Refugee Resettlement. But, unlike the Lieberman bill, Gramm-Miller does not provide for pro bono representation of children and appointment of guardians ad litem, who are persons appointed to represent the best interests of a child in a legal proceeding. By failing to make provisions for the latter, the government would be charging itself with the responsibility. Unfortunately, the government's track record in protecting unaccompanied immigrant children is dismal. Without these provisions, the government would be simultaneously responsible for deporting and protecting children—an impossible conflict of interest to negotiate.