Martin: Immigration laws need to be realistic

By Matt Kelly

The country needs to tighten its immigration requirements, while also being practical and humane, according to U.Va. law professor David A. Martin, a former general counsel for the Immigration and Naturalization Service.

Martin, the Henry L. and Grace Doherty Charitable Foundation Professor of Law, spoke Nov. 9 on immigration law as part of a series about the fallout of the Sept. 11 attacks. He was joined by David Klein, an assistant professor of government and foreign affairs, who warned that courts don’t always protect civil liberties and spoke on the impact of recently proposed anti-terrorism legislation.

Martin noted an abrupt swing of the pendulum in immigration law following Sept. 11. Before the attack, there was talk of an amnesty for illegal aliens, he said, noting that an effective amnesty has to be part of a credible enforcement plan. While immigration policies must be based on the rule of law, they also must be humane and realistic, he said.

While severe measures have been suggested, such as not admitting refugees to the U.S. and suspending the issuance of student visas, Martin argued a more realistic approach would involve better immigrant screening at U.S. embassies, including mandatory personal interviews of visa applicants, greater sharing of information and improved intelligence gathering.

He noted that there had been an outcry over lax immigration policy after the first World Trade Center bombing in 1993, but officials were bound by policies that had been loosened in the 1970s with the Helsinki human rights accords.

Martin also called for better patrolling of the borders, as well as greater cooperation from Canada, since the northern border is too expansive to fully monitor.

The INS should also rethink how it monitors, or doesn’t monitor, people once they are in the country, he said. There are 500,000 students and 30 million others who come and go. He said there are no efforts to note when people leave, so the INS has no record of who has overstayed visas, he said.

Klein, in his discussion, reminded his audience that there has historically been a tendency in America to clamp down on civil liberties in times of crisis. In retrospect, such measures usually seem excessive, but during a crisis, people’s judgments are usually impaired and they err on the side of severity, he said.

He outlined some highlights of recent anti-terrorism legislation, including a “sneak and peek” provision, which would allow law enforcement agents to execute a search warrant without informing the owner or tenant of the premises. The bill would also permit using foreign intelligence wiretaps, taken without any court approval, in a criminal prosecution.

Police tend to seek out new powers, and the current terror concerns make this easier, he said. He noted, however, that some congressmen have admitted that even if police had these powers earlier, they probably would not have been able to prevent the Sept. 11 attacks.

Martin and Klein discussed judicial reaction to prior restrictions. Klein argued that the Supreme Court justices have usually gone along with expanded police power, but Martin noted that the court recently rejected monitoring heat output of buildings without a warrant in a case involving the employment of infrared detection equipment in a surveillance.

Responding to a question from a community activist who feared that police would use concern over terrorism to hinder other activities, such as political activism, Klein reassured him that the law distinguishes between U.S. citizens and aliens from other countries and what rights they are afforded.