Green Borders

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 with 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.

Ben Lerner is Senior Research Associate with the Center for Security Policy in Washington, D.C.This article was published in The American Spectator.