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September 10, 2004

Program Moderator Doris Meissner, former Commissioner of the U.S. Immigration and Naturalization Service (INS) and a senior fellow at the Migration Policy Institute (MPI), introduced Susan Ginsburg as the latest speaker in MPI’s series, Conversations with Senior Government Officials. Ms. Ginsburg was senior counsel and team leader for border security at the National Commission on Terrorist Attacks Upon the United States (the 9/11 Commission). Previously, she served as the chief of staff and senior advisor to the Under Secretary for Enforcement at the Department of the Treasury, and she also has worked in the State Department, on Capitol Hill, and as a litigating attorney.

Based on her own experience testifying before the 9/11 Commission and being questioned by its staff, Ms. Meissner praised the Commission’s thorough preparation, as well as their tough but probing questions and the evenhandedness of their professional demeanor. She accredited the success of the 9/11 Commission both to the leadership of co-chairs Lee Hamilton and Thomas Kean and to the quality of staff such as Ms. Ginsburg.

Keynote Remarks: Terrorism and Immigration

Ms. Ginsburg began by noting that it was nearly the third anniversary of the September 11 terrorist attacks and that her involvement with the Commission had helped her come to terms with the attacks by giving her something to do to help. She also expressed her appreciation for the dedicated public service of immigration and other public servants. Her presentation included three components: 1) a brief discussion of the spirit of the 9/11 Commission; 2) an explanation of the factual findings on the hijackers’ entrance into the United States; and 3) a presentation of the Commission’s policy recommendations in the Commission Report and Terrorist Travel Monograph

The Nature of the 9/11 Commission

Ms. Ginsburg emphasized that the Commission was a bipartisan effort, intended both to collect facts for future historical analysis, and to derive feasible recommendations that would be possible in the contemporary political climate. The Commission’s goals were to deliver an accurate reporting of facts on which Democrats and Republicans alike could agree, and to present recommendations that could be adopted in the short term, taking into account institutional and political capabilities.

In particular, the Commission highlighted facts that were most relevant to understanding contemporary problems, using teams to cover the topics that Congress directed the Commission to address. The team that Ms. Ginsburg led was charged with addressing immigration, non-immigrant visas, and border control issues as they related to the events of September 11. The team discovered information that fell into two categories: the not-surprising facts that were consistent with general available knowledge about borders and immigration, and the surprising facts that were previously known to very few.

Not Surprising Facts

The team on immigration, non-immigrant visas, and border control revealed a number of known and knowable facts about the 9/11 attacks.

• Visas. When the Commission began its investigation, it was well known that most of the 9/11 hijackers entered the United States on tourist visas. Five other potential hijackers had tried to enter and failed. The Congressional Joint Inquiry on 9/11 found that the hijackers’ visa applications were not sufficiently completed, and some flat untruths had not been checked in the database system. There was also no functioning entry-exit compliance system for persons violating the terms of student visas or who overstayed their visas, and violators had no reasonable expectation that they would incur any consequences for their violations.
• Admissions. Two hijackers could have been denied entry based on violations of the terms of their admission. Two others stayed beyond their allotted lengths of admission, and another violated his terms of admission when he failed to enroll as a student. Border officers also made mistakes in evaluating the applications for admissions, in part because the law was unnecessarily complex, procedures were not uniform, and adjudications were not particularly strict. Saudi Arabian applicants frequently gained admission, because the general experience with Saudi applicants was that they were good spenders and followed the terms of their visas. Terrorists that arrived in the United States throughout the 1990s, many linked in some manner to Al Qaeda, arrived and remained in the United States under cover of several different immigration programs, and also escaped inspection upon arrival at land and sea.
• Leadership. Neither Consular Affairs nor INS were included at National Security Council (NSC) meetings dealing with terrorism and Osama Bin Ladin, and the agencies lacked anti-terrorism mandates. The NSC did not see them as part of the security debate.

Surprising Facts

Collecting information from various primary documents, including images of terrorist visas received in July, Ms. Ginsburg learned new facts about the admission of the hijackers and the perception of the permeability of American borders in the pre-September-11 period.

• Visas and Admissions. Of the four hijackers’ passports to which the government had access of the images, two contained fraudulent entry-exit stamps known as cachets, probably inserts by document forgers to hide travel to Afghanistan for terrorist training. Three of the passports had a possible indicator of an extremist affiliation, which should have caused an informed border agent to subject the traveler to further scrutiny, alert counter terrorism officials, and make an indication in the traveler’s file. The cachets could also have resulted in a decision not to issue a visa or admit the traveler. Ms. Ginsburg found it especially disconcerting that two hijackers had received their passports from relatives in the Saudi passport ministry, revealing corruption. In addition, the 9/11 Commission eventually learned that the 19 hijackers had used over 300 variations in their names during travel, including both outright aliases and slight spelling changes.
• Leadership Perceptions. FBI Director Robert Mueller and CIA Director George Tenet both testified before the Joint Inquiry of the House and Senate intelligence committees on 9/11 that the hijackers entered the United States “legally” and “cleanly.” That turned out not to be the case after further examination. Ginsburg believes that the characterization was a figure of speech used to convey the prevailing view in the security community that immigration and border laws could not be expected to disrupt the mobility of terrorists or prevent their entry across national borders. There was an attitude of complacency and helplessness, with the exception that the intelligence community could create a watchlist available to border authorities for use in visa and entry adjudications listing already-identified terrorists. She believes the evidence now disproves this view. She noted that the CIA did concede error on the subject of watchlisting known terrorists; the 9/11 Commission concluded that three hijackers could have been watchlisted in advance of the attacks, and a fourth was a subject of German inquiry. Today, Ms. Ginsburg believes that watchlist tracking is much stronger, and the United States has expanded its capacity to collect, disseminate, and make use of terrorist identity information. However, the government still has given insufficient attention to the importance of disrupting terrorist travel.
• Terrorist Travel. The 9/11 Commission examined information within the FBI and intelligence community about terrorist travel, revealing that nearly all the terrorists could potentially have been detected with an analysis of terrorist travel methods. It found that arranging for travel – to recruit, to meet, to case targets, to prepare attacks, and to conduct attacks – is an essential dimension of terrorist entities. Al Qaeda designed a passport office to handle international travel documents, an office that was the equivalent of a military travel planning office combined with an intelligence travel planning operation. Al Qaeda also used travel facilitators, corrupt border officials, and sympathetic travel agencies. They studied visa policies and practices, entry practices, and immigration rules of various countries, and then created an operational training course to teach operatives to forge documents. These operatives learned how to add or erase entry stamps, alter and remove visas, substitute photos, and tear out pages. Visas became an integral part of the planning process for terrorist attacks in other ways. Yemeni suicide operatives, who could have been part of the 9/11 plot but could not obtain visas as easily as Saudis, planned to hijack planes in Southeast Asian countries instead, since they could enter without visas. However, this part of the September 11 plot was never carried out.
• Intelligence Information about Terrorist Travel. FBI counterterrorism agents, CIA and intelligence officers, INS and Customs border officials all know pieces of the information that surfaced about terrorist travel. Journalists and a few al Qaeda analysts had been aware that terrorists traveled clandestinely using aliases, forged documents, and other commonly recognized tools of illegal border crossings. However, Ginsburg’s research found that no part of the U.S. government had assembled and analyzed the information or studied its policy implications prior to 9/11. Though the CIA had done some work on this in the early 90s, it had never been widely shared with officials in consulates or at ports-of-entry, nor updated by information gained by the FBI during terrorist investigations/prosecutions during the 1990s.

9/11 Commission’s Approach to Recommendations

After analyzing the facts of the September 11 attacks as they related to immigration and border controls, Ms. Ginsburg’s team then addressed the challenge of developing meaningful, feasible recommendations for the 9/11 Commission’s report. Traditional intelligence and terrorism law enforcement took center stage in the report, in part because the Commission’s work built on years of study on how to adapt intelligence organizations to national security challenges.

Ms. Ginsburg believes that there is a lack of an epistemic community on homeland security issues, including the role of border, transportation, and immigration systems. Not only do academics, policy analysis, government officials, and private sector persons fail to exchange ideas on a regular basis, but there is also an especially notable gap between immigration-related social science, legal, and policy thought, and the world of national security. Thus, she emphasizes that there is a need for broader research, thinking, and communication to build a sustainable and rational border and immigration security policy.

When the Commission began to consider recommendations, there were three potential approaches:
• Terrorist Watchlist Centered. Conventional wisdom in the intelligence community was that little could be done by border authorities unless the individual terrorists were previously known to the intelligence or law enforcement communities. Thus, immigration-related law enforcement was viewed only as an adjunct to intelligence or terrorism investigations. There was also a serious critique from human rights and business advocates about the impact of post-9/11 visa and border restrictions on visitors, travelers, and immigrants, as well as about the effectiveness of immigration-related law enforcement programs in reducing the likelihood of terrorist attacks.
• Immigration Enforcement Centered. On the other hand, the American public, as exemplified by the 9/11 families, took for granted that it was the government’s job, through border authorities, to stop dangerous individuals from crossing United States territorial lines. The families of 9/11 victims were particularly disappointed with the lack of enforcement for immigration violations and the ease with which terrorists obtained documents such as drivers’ licenses.
• Secure Global Systems. The National Strategy for Homeland Security, published in July 2002, provides a third policy approach. Advocated by retired Coast Guard commander Stephen Flynn, the model states that the United States must fundamentally rethink and rearrange its border and transportation systems to better secure the entire globalized economy. Because the U.S. economy and its trading partners are inextricably linked through the global transportation and trading system, the entire global system is vulnerable. Thus, the Secure Global Systems strategy has a dual focus: security – keeping out terrorists and instruments of terror – while simultaneously facilitating the legal flow of people, goods, and services on which the economy depends. It calls for a layered management system that makes people, vehicles, and goods visible as they come to and depart from the United States. Specifically, the strategy calls for:
o Biometric identifiers
o Better intelligence and information for visa and border officers
o Comprehensive databases, including a consolidated terrorism watchlist
o An entry exit system, including the tracking of foreign students
o Coordinated national efforts
o Checks that incorporate threat assessments and risk management tools
o The screening and identification of persons and goods before they reach U.S. borders
The strategy also asserts that it is in the interest of the United States to take the lead in working with other governments and foreign companies to secure the system.

While it was not in the Commission’s mandate to thoroughly examine what the administration was or was not doing after 9/11 other than in immediate response, it needed to acquire a basic understanding of current actions and programs. They found that:

• The United States is nowhere near the well-informed border management system envisioned in the Homeland Security strategy. Cooperation with Canada, Mexico, and the Atlantic partners is not moving at sufficient speed.
• There was no evidence that actions initiated by the Justice Department, such as deportations of Arabs and Muslims detained with immigration violations, the alien absconder initiative, additional name checks in the visa process, the National Security Entry-Exit System, or the voluntary interview program, have had a positive result for counterterrorism. Indeed, they had costs in human rights and civil liberties violations, as well as in disruption of travel to the United States. Ms. Ginsburg asserted that such policies need to be data driven and informed by information and analysis, including broader research, thinking, and communication to build a sustainable and rational border and immigration security policy.

Recommendations

The 9/11 Commission drew on all three models and recommended:

• Enhanced Screening. There must be a new effort to verify people’s identities, as well as a serious assessment of the legitimacy of travel, in order to instigate effective watchlisting and immigration enforcement. The effort must include: biometric identity verification; comprehensive and integrated travelers files; data analysis and screening; an entry-exit system; and a broader screening system to reduce duplicity. Data must be integrated into one system. While these efforts are generally a part of existing policy, they are currently dispersed throughout the government bureaucracy.
• International Cooperation Efforts. Terrorism prevention cannot be effective without international cooperation. The United States must encourage other nations to develop a universal biometric identifier, and share information across national boundaries, particularly in visa waiver program countries. Ms. Ginsburg suggested that an international convention might permit countries to do screening on a person-by-person basis.
• Study of Terrorist Travel. The current travel framework is not sufficient to address terrorism because most terrorists’ identities remain unknown to the government. Since terrorists are forced to use various evasive tactics in order to conceal their identities as terrorists, it is at those points that they are vulnerable to exposure or to failing in their mission. Government authorities must exploit these vulnerabilities and learn their techniques, including networks with human smugglers, document forgers, sympathetic travel agencies, and corrupt border officials. Criminal efforts against these facilitators must be initiated.
• Intelligence Sharing and Dissemination. The Commission has begun the task of describing terrorist tactics. Now, the intelligence community must detect indicators, and declassify and distribute information to local authorities in order to get increased expertise at the ports-of-entry and at consulates.
• Enforcement. There is a growing role for state and local law enforcement in identifying terrorists in the United States. While the United States must monitor its borders, it was beyond the Commission’s mandate to determine how to deal with the over 9 million foreigners who entered and continue to enter the United States without inspection, though legislative and policy initiatives need to address this because of the security implications.

Question and Answer Session:

An audience member asked whether the focus on preventing fraudulent asylum seekers in Europe involves the same measures as preventing terrorist entries. Ms. Ginsburg responded that raising the level to detect fraudulent applications on any level will also produce additional measures against international organized crime, which on a base level will help prevent terrorism, and thus there is some overlap. However, separate efforts are also needed for terrorist prevention.
The second question related to whether Al Qaeda had developed their own travel facilitators, or if they were using existing ones. The response was that there is both an internal capacity today in Pakistan for travel facilitators, as well as the interaction between Al Qaeda and international criminal networks. Thus, there is a major role for intelligence and law enforcement, just as those efforts are currently used to prevent smuggling and trafficking operations.

Noting that Malaysia had allowed Muslim operatives to enter without visas, there was a question about other countries that give Muslims favored status, and whether there is a favored relationship between Saudi Arabia and the United States for visa entry. Ms. Ginsburg responded that there is no comprehensive list of countries that give Muslims favored immigration status, because these questions require more systematic study than the 9/11 Commission was able to perform within its mandate. Prior to 9/11, she believes that Saudi Arabian citizens generally received admission because they had a good record of meeting the terms of their visas, indicating a gap between the intelligence community’s knowledge of rising extremism and the scrutiny of visa applications.

In response to a question of whether there was any information about terrorist entries over the southern border of the United States, Ms. Ginsburg noted the arrest of one human smuggler with terrorist ties. Law enforcement is part of the solution, including removing travel facilitators from operation and restraining terrorist mobility and finance. However, she also believes that border screening can also help by using anomaly detection to discover potential risks.
She further noted that the Commission did not have the time or mandate to acquire the depth of detailed knowledge on the relationship between the United States and either Canada or Mexico. However, the expanded border idea involves: 1) Electronic screening, including the potential for checks at the time of airline reservations; 2) the engagement of airlines in further scrutiny, especially with regards to document identification technology; 3) other pre-screening and roving efforts to be used all over the world. Other questions mentioned the idea of international zones at airports and international conventions regarding screening travelers.

The next question dealt with the connection between realistic immigration admissions and targeted border enforcement, but Ms. Ginsburg responded that the 9/11 Commission, not intending to be a migration commission, stopped short of immigration reform and only briefly discussed immigration enforcement, though it would seem that these issues need to be addressed. However, with regard to the viability of an entry-exit system Ms. Ginsburg responded that she believes the investment in exit-entry needs to be made on a consistent basis, that Americans should not be exempt from verifying their identifies when crossing borders, and that more emphasis should be placed on enabling frequent commuters and travelers. The program needs additional research and development – she believes there will be a solution for an entry-exit program, and research teams must figure out the best solutions.

A final set of questions revolved around private sector involvement in an entry-exit system, the statutory or judicial barriers to change, and the impact of post 9/11 changes on victims of persecution. Ms. Ginsburg responded that there had been little assessment of the programs that were put in place, that the business community had not been as vocal as she might have expected, and that expedited removal makes sense for arrivals who lack documentation, though Border Patrol should debrief them to learn about smuggling routes and actors.