By Tish Durkin
© National Journal Group Inc.
Friday, Sept. 28, 2001

The disaster of September 11 broke the American heart, but it also engaged the American mind. Like a perennial playboy who has just been given three months to live, a complacent nation finds itself consumed by all sorts of searing, defining questions about who we really are and what we really care about.

The fight against terrorism must be conceived of as a series of efforts great and small. That's why I'm worried.

How do we balance an individual's right to privacy with the collective responsibility for national security? Should airline pilots be armed, passengers profiled, air marshals deployed? How are we to take the measure of a war that is to be waged in fits and starts, and largely in secret?

All these questions are well worth asking. But amid the general pondering of the complicated, the profound, and the controversial, I would like to put in a plug for the simple, the obvious, and the dull. By all means, let's examine where the national defense may be lacking when it comes to intelligence of the top-secret, high-tech, cloak-and-dagger kind -- but let's not overlook the equally glaring gaps in intelligence of the basic, diligent, and mundane kind. Let others weigh the great schemes that will be worthy of "oohs" and "ahs." I say attention must be paid to the stuff that properly merits "duh."

It was a recent New York Times editorial that set me on this modest quest. Almost in passing, the editorial noted that it makes little sense to expand the government's legal right to eavesdrop on a given terrorist suspect without expanding the government's practical ability to do so, by having surveillance agents who could understand the language that they were overhearing. (Duh.) When I called the FBI to find out what proportion of its agents, current or prospective, are proficient in Arabic, I was prepared to be quoted a tiny figure. I was not prepared to hear the FBI's official line on this, which is that they don't have such a figure. "We don't have the manpower to answer questions like that," says the public information officer, before refusing to give her own name.

That got me thinking: There have got to be dozens, if not hundreds, of practical, unobjectionable, currently legal anti-terrorist measures that should be in practice but are not. I started with immigration. I also finished there, because it was like walking around in a huge bazaar filled with the kinds of examples I was looking for. To spend even the most cursory couple of days on the subject is not to conclude that U.S. immigration policy is a failure. It is to conclude that it's not a policy.

Consider the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Among the many provisions in that enormous work of legislation was Section 110, which addressed "entry-exit control." Congress had deemed it important to develop some accurate, comprehensive sense of who went in and out of the United States and when -- not only through airports, where attempts at such monitoring have been less-than-effective, but also at land borders, where attempts at such monitoring have been non-existent. Some time after the legislation passed, however, it became plain to various representatives that checking up on Canadians as they came in and out might cause Canadians to come in and out less often, and thus inhibit commerce along the northern border. Why this result was not plain before the legislation was passed will be left to the imagination, but the upshot is in plain sight.

Question: How many dollars has Congress appropriated toward the implementation of Section 110?

Answer: Zero.

Question: How many times has Congress voted to delay implementation of Section 110?

Answer: Twice.

Far from surprising, this is standard. Like the predictable stages of grief that almost every mourner goes through, the failure to follow through is a predictable facet of the way in which lawmakers approach almost every big American problem. Congress passes a great, sweeping law that sounds much better than it is. Thus is created some agency or entity, which is, sooner or later, either starved of money, strangled with mismanagement, or stretched to the point of being pathetically understaffed with the ranks of the underpaid and undertrained. Years go by. The once-heralded entity screws up, either so spectacularly or so consistently that it is branded a dreadful failure. The collective shock is palpable.

This is an incredibly stupid trajectory, and for a smart country, we travel it an awful lot. In one way or another, we have gone this route with public education, campaign finance reform, welfare, and housing. But we cannot afford to go this route in an area such as immigration that bears such an important relationship to the fight against terrorism.

Guess how many INS agents are patrolling the Canadian border. There are 334, or roughly one per 10 miles of border. Actually, you might very well have guessed that number, because in light of recent events, there has been wise talk about multiplying it. You are less likely to get this one, though: Guess how many INS agents are patrolling the entire interior of the country; in other words, the area where every one of the millions of people who gets past the border are then free to roam. The answer: about 2,500 agents. Their duties include dealing with aliens who commit crimes; with smuggling; with immigration fraud; and with employment of illegal immigrants. Out of their ranks come agents detailed to work with other entities, such as the Drug Enforcement Administration, and with other kinds of special task forces. An estimated 300,000 cases go before immigration courts each year. Current INS detention facilities, which include rented space in local jails, hold some 20,000 people -- almost all of them aliens who have committed crimes while in the United States. There simply is no way to track down people who may have quietly outstayed their documentation, or never been documented in the first place.

There is no way, because there is no will. It is widely accepted that for all practical purposes, pretty much anyone who can get in to the United States can stay in the United States indefinitely. There is plenty of precedent for this fact to bear fruit in acts of terrorism.

For starters, there is the case of Gazi Ibrahim Abu Mezer and Lafi Khalil, the two Palestinians who were arrested in July 1997 in a Brooklyn, N.Y., apartment right before they planned to blow up a subway station. Because both men were in this country illegally, the inspector general at the Justice Department issued a report relating solely to their immigration status. I won't bore you with the whole thing, but it contains such sentences as: "After Mezer's third detention in January 1997, the INS had begun formal deportation proceedings against him, but Mezer had been freed on bond, while the deportation proceedings were pending..." Yes, ladies and gentlemen, that is how deportation works: If you are due for a hearing that may kick you out of this country, you very often are on your honor to show up for the hearing that makes it official. Shockingly, many do not. (And they sometimes just out and out lie: Mezer got out of his hearing by phoning his attorney and telling her that he was in Canada.)

In light of all this, the current clucking about the spike in detentions of immigrants seems odd. It is not the hundreds of immigrants who are being questioned that ought to trouble us. It is the countless numbers of illegal immigrants who are never asked about anything that should give us pause. Needless to say, it is impossible to imagine detaining anything like every immigrant who technically deserves it without turning the country into one big holding pen. But let's be clear: It is one thing to accept, and even celebrate, the inability of a free society to keep track of the millions of people who come in and out every year. It is quite another to accept, and indeed guarantee, an inability to keep track of any, unless and until they break some other law.

That may sound paranoid and xenophobic, but only if you consider chaos and hypocrisy to be among the hallmarks of charity and enlightenment.

As of September 11, the sight indelibly associated with terrorism is that of a jetliner crashing into a tower. But the sound associated with it ought not to be that of the explosion that comes next. That sound should be the whirring that comes before, the purr of slipping in, blending in, hanging in, until the terrible day arrives.

That is why the fight against terrorism must be conceived as a series of efforts great and small. And that is why I am worried. Americans are great at great. We are not so hot at small. But let's face it: Among many, many other things, this is a matter of sensibly administering boring bureaucracies year after year, all the while appreciating that their greatest success would be to go about their niggling, plodding business without anyone noticing.

To which observation I can only hope that the lasting response of lawmakers is:

Duh.

Tish Durkin is is a columnist for National Journal magazine, where "The Scene" appears.

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