One of the unfortunate paradoxes of the post-September 11
environment is that the further in time we move from that horrible
day, and the more effective our security agencies become at
preventing another successful terrorist attack on American soil,
the more susceptible many Americans become to the notion that the
terrorist threat has receded. Taking false comfort in the absence
of a successful 9-11 scale attack or worse during the past seven
years, many already pre-disposed to distrust the Bush
administration have long since decided that it can do no right when
it comes to terror prevention — that every counter-terrorism
measure is simply an abuse of power disguised as vigilance.
There are those, however, who should know better than most about
the ongoing seriousness of the threat, among them those lawmakers
tasked specifically with the formulation and oversight of
counter-terrorism policy. It is for this reason that we should view
with great alarm the fact that certain key Members of Congress —
including the Chairmen of the House Homeland Security Committee and
House Permanent Select Committee on Intelligence — are teaming up
with misguided environmental organizations in an effort to undo
legislation intended to prevent terrorists from sneaking across our
vulnerable southwestern border to conduct their operations.
While much of the debate on illegal immigration — especially
during this presidential election cycle — has focused on the
economic and general public safety consequences of the continued
permeability at the border, the issue of terrorist infiltration
into the United States via Mexican territory has received
comparatively less attention. Such infiltration, however, remains a
genuine national security risk, as has been thoroughly documented
by investigative journalist Todd Bensman. According to Bensman, since the
mid-1990s, operative or affiliates of Hezbollah, Hamas, and the
Tamil Tigers have been apprehended by U.S. authorities while
jumping or after having jumped the border. Bensman also notes the
2004 arrest of a South African Muslim woman in Texas whom the
federal government has disclosed was a smuggler specializing in
moving Middle Easterners — including those with ties to terrorist
organizations — into the U.S. via Texas.
Concern over such incidents has been reaffirmed at the highest
levels of our national intelligence apparatus. In testimony to the
Senate Intelligence Committee in 2005, then Deputy Secretary of
Homeland Security James Loy stated: “Recent information…strongly suggests
that al-Qaeda leaders believe operatives can pay their way into
Mexico and also believe illegal entry is more advantageous than
legal entry for operational security reasons.” National
Intelligence Director Mike McConnell, during and interview with the El Paso Times just last
year in which he acknowledged that terrorists have been crossing
the southwest border, frame the situation this way: “You’ve got
committed leadership. You’ve got a place to train. They’ve got
trainers, and they’ve got recruits…The key now is getting
recruits in. So if your key is getting recruits in, how would you
do that?”
Add to this mix the growing and alarming presence of Middle
Eastern terror organizations in Latin America, coupled with the
blossoming relationship between that region’s anti-U.S. radical
leaders and the Iranian godfathers of terror-sponsorship, and one
can only conclude that this problem will escalate. In Congressional
testimony earlier this year, the Center for Security Policy’s Nancy
Menges outlined Venezuelan strongman Hugo Chavez’s
growing ties with Iranian President Mahmoud Ahmadinejad, which in
turn is creating inroads for the latter to the leadership in
Nicaragua, Ecuador, and Bolivia. According to Menges, U.S. Southern
Command has acknowledged Venezuela’s Margarita Island is “one of
the most important centers of terrorist gathering and money
laundering activities for Hamas and Hezbollah.” While these
developments surely pose grave security risks for the people of
Latin America, it does not take a leap of imagination to see in
them a foothold for terrorist penetration in the United States.
CONGRESS HAD THESE and other security issues in mind when it passed
Section 102 of the REAL ID Act of 2005. Back in 1996, Congress had
authorized the construction of a border security fence along the
southwestern border to deter illegal crossings. Section 102 of the
REAL ID Act amended the 1996 law by granting the Secretary of
Homeland Security “the authority to waive all legal requirements
[as the Secretary] determines necessary to ensure expeditious
construction” of the fence. Acting on this authority, Secretary of
Homeland Security Michael Chertoff notified the public in October
of 2007 that he was waiving numerous environmental laws in order to
expedite fence construction in an area known as the San Pedro
Riparian National Conservation Area (SPRNCA) in Arizona, which
Chertoff had identified as “an area of high illegal entry.” This
was followed by the use of two more waivers last month to advance
construction in parts of Texas, New Mexico, Arizona, and
California.
Environmental organizations such as the Sierra Club and
Defenders of Wildlife apparently are not bothered by the security
risks that such a porous border creates — at least not enough to
restrain themselves from filing a lawsuit to prevent the DHS from
doing the job that Congress is requiring it to do. The primary
complaint driving this move: construction of a border fence would
cut off cross-border populations of the same endangered jaguar and
ocelot species from breeding with one another. It should be noted
that these and other environmental concerns registered by
environmental organizations and certain quarters of some border
communities persist despite the fact that DHS, even after
having used its waiver authority, continues to consult
extensively with other federal agencies, state and local
governments, community organizations, and concerned citizens about
how to minimize the fence’s environmental impact.
Bu these DHS efforts are insufficient for the plaintiffs, who
are proceeding with the litigation on constitutional grounds. The
lawsuit alleges that Congress’s grant of waiver authority to DHS in
2005 was impermissibly broad, violating separation-of-powers
doctrine by effectively delegating to the executive branch
Congress’s authority to repeal laws.
This reasoning did not persuade Judge Ellen Huvelle of the U.S.
federal district court in Washington, D.C. Judge Huvelle ruled last
December that the overwhelming weight of U.S. Supreme Court
precedent affirmed the constitutionality of the waiver. The Sierra
Club and Defenders of Wildlife have since appealed the case
directly to the Supreme Court, because the REAL ID Act — again, in
the interest of expediting border fence construction — eliminated
the option of appealing district court decisions on the DHS waiver
to any of the federal appellate courts, making direct appeal to the
Supreme Court the only legal option left. While the Court has yet
to determine whether it will hear the case, the history of prior
Court opinions on matters of Congressional delegation to the
executive branch, as outlined by Judge Huvelle and echoed by some
legal scholars, suggests that DHS would likely prevail. In the
final calculus, however, this matter may not end with the courts
but rather with Congress, which is why there is reason to remain
deeply concerned about the fate of border security.
It is disturbing yet not all that surprising that the Sierra
Club and Defenders of Wildlife have unreasonably chosen to
prioritize jaguar populations over millions of Americans who remain
targets of terrorism. The Natural Resources Defense Council, a
fellow traveler in eroding national security in pursuit of its own
brand of environmental purity, has successfully (for now) used the
court system to prevent the Navy from conducting critical sonar
training off the West Coast for fear of the alleged harm sonar
frequencies cause to whale and dolphin populations. The actions of
these organizations are indicative of a worldview according to
which national security risks are either non-existent, exaggerated,
or simply not worth fussing over they can’t be addressed by
measures that meet the loftiest standards of green.
BUT WHAT SHOULD surprise us — indeed, alarm us — is that some
Members of Congress who exercise significant power when it comes to
national security are lining up to unravel progress towards this
critical fence. Fourteen Members of Congress have filed an amicus
brief in support of the plaintiffs’ position that the waiver power
authorized by Congress in 2005 is an unconstitutional delegation of
legislative power to the executive. Those Members include the
Chairman of the House Committee on Homeland Security, Rep. Bennie
Thompson (D-Mississippi), and the Chairman of the House Permanent
Select Committee on Intelligence, Rep. Sylvestre Reyes
(D-Texas).
Thompson and Reyes having signed onto this amicus brief is
indicative of one of two things: (1) either these Chairmen of
committees critical to our national security have not been fully
briefed on the threat that terrorists could infiltrate the U.S. via
the southwest border, and have already done so — a proposition
difficult to believe; or (2) these Chairmen, despite their
responsibilities to help protect the United States from the next
terrorist attack, have joined the “can-do-no-right” crowd, letting
themselves become enmeshed in a partisan mentality that places
higher priority on reflexively depicting this administration as
abusive of its national security authority than on coming up with
meaningful solutions that will actually prevent terrorism. In the
process, these Members have already provided another boost for
environmental “lawfare” that will likely encourage similar
litigation in the future.
If legal efforts to nullify Chertoff’s waivers fail,
Congressional repeal of the waiver authority may turn out to be the
only conceivable option for those bent on tying the hands of the
DHS on construction of the border fence. Rep. Raul Grijalva
(D-Arizona) has already introduced legislation that would do just
that, and it continues to gather co-sponsors. Hopefully there are
still enough Members of Congress who remain mindful of the
non-jaguar population when pondering the future of border
security.
