It’s a given that US immigration policy has changed since Sept. 11, but whether for better or worse depends on one’s perspective.

The John B. Gage Lecture on April 8th at UMKC’s School of Law gave the university’s own Professor Kris Kobach and Georgetown Professor David Cole the opportunity to debate their contrasting views on “Civil Liberties in a Time of Terror.”

Kobach, who teaches constitutional law, is currently on leave as a White House Fellow serving in the Justice Department. He dismissed civil libertarians’ impulse to “trot out the old horse” of lost liberties and suggested that few if any members of the audience present for the debates had experienced any discernable erosion of their rights in the last 19 months.

He also refuted the idea that suspects are being denied counsel in prison or that monitoring of attorney-client communications has exceeded the special administrative legislation put in place during the Clinton administration.

Kobach reminded the audience that foreign nationals are guests of the US who are not entitled to the same rights as citizens. He lauded the National Security Entry-Exit Registration System (NSEERS) put in place to gather information on these individuals when they come into the country and the domestic registration system that retroactively gathers data on those who were here before Sept. 11.

The detailed NSEERS replaced the brief I-94 form that visitors were required to complete upon entry to the US. According to Kobach, the combination of NSEERS and the domestic registration system has stopped suspected terrorists from entering the US and nabbed criminals who were already here before they could engage in terrorism – all of which make Americans safer.

Professor Cole, who has litigated numerous First Amendment cases and written extensively on civil rights and criminal justice, offered a less rosy assessment of the new laws.

He said that they impose a double standard that is “wrong, counterproductive and illusory”: wrong because they ignore basic human rights; counterproductive because they impose inordinate restrictions on noncitizens; and illusory because while foreign nationals have been the primary targets so far, historic precedence suggests the same restrictions will eventually be applied to citizens too.

Cole identified preventative detentions, military tribunals and elements of the USA Patriot Act that target foreign nationals as evidence of the government’s subliminal message, “You don’t have to trade your liberty for security. We’ll trade theirs,” meaning noncitizens’.

He also pointed out that even among noncitizens, new immigration guidelines are being unevenly applied to nations with predominant Arab and Muslim populations. How else can the government explain that while terrorists and terror cells have been identified in England, France, Germany and Spain, none of these countries warrant inclusion on the list of 25 countries whose citizens must now submit to domestic registration?

Kobach explained the discrepancy as a simple matter of resource allocation. The government can’t keep track of all foreign nationals, so it only makes sense to scrutinize people from countries with active Al Qaeda cells – the fact that no European countries meet the criteria is purely coincidental.

Throughout their debate, Kobach confidently defended the mix of laws, regulations and executive orders the government has introduced to combat terrorism in America, while Cole repeatedly warned of the inherent dangers in trading freedom for security.
Their views contrasted most vividly on the subject of the Justice Department’s proposed expansion of the Patriot Act.

According to Kobach, the Domestic Security Enhancement Act of 2003, nicknamed Patriot Act II, is nothing more than a collection of Justice Department ideas and brainstorming aimed at closing loopholes in current immigration and antiterrorism legislation. These ideas include further restricting Freedom of Information Act requests, creating a DNA database on “suspected” terrorists, pretrial detention for individuals suspected of terrorist activity and expatriation of American citizens who become members of or provide material support to designated terrorist organizations.

Cole said that the very fact the Justice Department is even contemplating revoking individuals’ citizenship should set off alarm bells.

Kobach may classify Patriot II as brainstorming, but The Center for Public Integrity reports that a copy of the bill was sent in draft legislation form by the Office of Legal Policy to Speaker of the House Dennis Hastert and Vice President Richard Cheney on Jan. 10, 2003.

Cole, who has reviewed the draft legislation extensively, is disturbed that Congress was not aware of it until it was leaked and had no input in its drafting. He suggests that the low profile was intentional and that the Justice Department was waiting for an opportune moment – such as the aftermath of another terrorist attack – to introduce the legislation to a shaken and fearful nation.

With Congressional Republicans maneuvering to remove the original Patriot Act’s sunset clause and Patriot II waiting in the wings, Cole’s warning that restrictions on noncitizens will ultimately trickle down to citizens seems valid. In another 19 months, Kobach will be hard pressed to find a sizable audience with their civil liberties still so firmly intact.