FP: Mr. Kobach, welcome to Frontpage Interview.
Kobach: Thank you. I’m honored to be interviewed by Frontpage.
FP: Let’s start with a general theme. Can you talk a bit about the importance of immigration enforcement in the war on terrorism?
Kobach: The importance of immigration enforcement in the war on terrorism cannot be overstated. As long as the enemies of the United States rely on suicide bombers who seek to murder civilians on U.S. soil, they will need to find ways to enter our country to accomplish their missions. Consequently, our national border is the most important line of defense in this war.
The weakness of immigration enforcement prior to 9/11 made it possible for that horrific attack to occur. Five of the nineteen hijackers violated committed immigration violations prior to the attack, exploiting our poor enforcement ability. The most common violation was exceeding their periods of authorized stay in the United States (sometimes described as “overstaying a visa”). Unfortunately, hundreds of thousands of aliens violate this provision of immigration law every year. The chances of such immigration violators being caught were virtually zero prior to 9/11. The hijackers took advantage of this fact and operated in the United States with impunity prior to the attack.
Although we have made substantial improvements in our ability to apprehend illegal aliens inside the United States since 9/11, we have a long way to go. It remains relatively easy for a terrorist to overstay his visa and remain in the United States undetected, if his connections to terrorism are unknown by the FBI or the CIA.
And that is only half of the problem. Although all nineteen of the 9/11 hijackers entered legally through ports of entry, there have also been cases of terrorists entering the United States by sneaking across the border. Until we secure our borders with substantial increases in manpower and technology, terrorists will continue to be able to enter undetected, blending in with the stream of thousands of illegal aliens who enter every night. Al Qaida is well aware of this fact.
FP: Tell us about the Office of Legal Counsel (OLC) memorandum of 2002 on state and local law enforcement.
Kobach: The OLC memorandum of 2002 answered the question of whether there was any legal barrier to state and local police assisting the federal government by making immigration arrests. Prior to the OLC opinion, some people had asserted that local police could arrest aliens for criminal violations of immigration law (e.g., crossing the border covertly) but not for civil violations (e.g., overstaying a visa). The OLC opinion concluded that this distinction had no valid basis in law. Making immigration arrests for a criminal violation of immigration law, as well as for a civil violation that renders an alien deportable, is within the inherent authority of the states. And this authority has never been preempted by Congress. The Attorney General announced that conclusion in June 2002. The OLC opinion itself was recently released as a result of a FOIA lawsuit. The legal analysis in the opinion speaks for itself.
The open-borders Left has complained a great deal about the OLC opinion, insisting that local police must play no role in immigration law enforcement. That is a dubious policy claim, but it is an even weaker legal assertion. Indeed, the Left has presented no credible legal argument to counter the OLC opinion. They also conveniently neglect to mention that there has never been any dispute about the authority of local police to arrest aliens who have violated the numerous criminal provision of federal immigration law.
FP: How about the National Security Entry-Exit Registration System (NSEERS) and the registration of high-risk aliens?
Kobach: I spearheaded the development of NSEERS (the National Security Entry-Exit Registration System) at the Department of Justice in the months after 9/11. NSEERS was designed to correct critical weaknesses in our defenses against terrorism. Essentially, it has three components: (1) the gathering of detailed information, photographs, and fingerprints from high-risk visitors to the United States at the ports of entry, (2) requiring these aliens to register with immigration officials while in the United States, and (3) imposing exit controls on these aliens, in order to determine when overstays occur. The program took effect on 9/11/02, a year after the attacks.
NSEERS now allows the federal government to determine whether a high-risk alien has overstayed his visa. The names and details of many NSEERS violators have been entered into the National Criminal Information Center (NCIC) database, which police officers across the country routinely check. It is absolutely essential that state and local police officers have access to this information and that they can act upon it when encountering an NSEERS violator in a traffic stop.
In the first two years of its operation, the NSEERS system led to the identification of 11 suspected terrorists. In addition to the identification of specific terrorists, NSEERS has served to deter and disrupt terrorist activity in the United States. As the 9/11 Commission Staff Report concluded: “the proposition that these programs had the potential to disrupt and perhaps to deter terrorist plots forming inside the United States after 9/11 certainly has some support…. Our research demonstrates that terrorists often need to break laws in order to successfully complete their operations….” NSEERS also led to the initiation of removal proceedings against approximately 13,000 aliens who were found to be in violation of immigration laws in 2002-03. These removals had a disruptive effect on terrorist planning too. As one Al Qaida detainee stated, the removals made Al Qaida operations more difficult.
In addition to these advances in the war against terrorism, NSEERS has also served to identify inadmissible criminals and prior deportees attempting to enter the United States—primarily through the fingerprinting required under NSEERS. In the first year of its operation, NSEERS led to the apprehension of more than 1,000 aliens in these categories.
FP: You are the lead attorney for the plaintiffs in the suit of Day v. Bond, the lawsuit challenging Kansas's grant of in-state tuition to illegal aliens. Is there anything you are free to say about this matter at the moment?
Kobach: In May 2004, Kansas enacted a statute giving in-state tuition to illegal aliens. That statute clearly violated federal law. In 1996, Congress had passed a federal law specifically prohibiting state governments from giving in-state tuition to illegal aliens (Title 8 U.S.C. Section 1623). Congress declared that no state may give in-state tuition benefits to illegal aliens without extending the same benefits to out-of-state U.S. citizens. The Kansas statute also violates the Equal Protection Clause of the U.S. Constitution, because the state is discriminating against U.S. citizens and in favor of illegal aliens in the provision of this valuable tuition benefit.
In July 2004, we filed suit in federal court on behalf 24 out-of-state U.S. citizen students attending Kansas universities and their parents. A year later, in July 2005, the district judge ruled that our plaintiffs lacked standing to bring their equal protection challenge and had no private right of action to bring their statutory challenge. The judge did not address the merits of the lawsuit, regarding whether the Kansas statute violated federal law.
We have appealed the district judge’s decision to the Tenth Circuit U.S. Court of Appeals. We are asking the Tenth Circuit to reverse the district judge’s order and remand the case back to the district court for a ruling on the merits of our challenge.
Beyond the illegality and unconstitutionality of the Kansas statute, it is also strikingly bad policy. Kansas is now encouraging aliens to violate federal immigration laws. The state directly rewards illegal behavior with a valuable education benefit. Amazingly, the Kansas law actually denies in-state tuition to those legal aliens who have a valid student visa. Aliens are sent this message: "In Kansas, we encourage you to violate the law. If you are an illegal alien, you can qualify for in-state tuition. If you actually get a valid visa to study here, we will penalize you by making you pay out-of-state tuition." Talk about perverse incentives.
FP: What is the Left's agenda in its open-borders crusade? What state of mind would someone have to be in to make it easy for people who want to perpetrate another 9/11 to get into the country?
Kobach: The open-borders Left is driven by several motivations. Some believe that borders are immoral and that citizenship is an outdated concept. Others think that the redistribution of wealth in the United States should not be limited to U.S. citizens and lawful permanent residents; in their opinion, all aliens are entitled to public benefits provided by U.S. taxpayers and payers into the U.S. health system. Still others are driven by a shameless political calculation: they believe that illegal aliens will vote Democrat if provided a path to citizenship. Regardless of their motivations, they don’t like to talk about the fact that the breakdown of immigration law enforcement enables foreign terrorists to enter and operate in the United States.
FP: So in general, how do you think Homeland Security system is going now and what overall advice do you have for the administration?
Kobach: We are making incremental improvements. But there is a long way to go. My advice to those in the administration who are trying to enforce the law is to remember that the American people are on your side. Inside the Beltway, some people question the merits of stronger enforcement of immigration law. Outside of the Beltway, there is no dispute. The overwhelming majority of Americans want to restore the rule of law in immigration.
FP: Mr. Kobach, it was a pleasure to speak with you today.
Kobach: The pleasure was mine.