Comprehensive Immigration Reform Act Of 2007

Floor Speech

COMPREHENSIVE IMMIGRATION REFORM ACT OF 2007 -- (Senate - June 06, 2007)

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Mr. WHITEHOUSE. Madam President, this is my first time speaking on the floor since the passing of our colleague, Senator Thomas. I know we are all very conscious of the desk draped in black across the way, next to Senator Cornyn. I extend my condolences to his many friends, my many esteemed colleagues who knew and admired Senator Thomas and mourn his loss and know he will be sorely missed by his friends in the Senate and his friends and family in his native State of Wyoming.

AMENDMENT NO. 1184

I rise today to address amendment No. 1184 offered by my friend from Texas, my former attorney general colleague, Senator Cornyn.

I will oppose this amendment. It is not entirely without merit in every one of its many dimensions, but it would undercut the fundamental principles of due process which are a longstanding and vital hallmark of our legal system. I fully support the creation of new grounds for inadmissibility to the United States for convicted sex offenders, gang members, repeat DUI offenders, and for individuals who have been convicted of firearms offenses and domestic violence. I have prosecuted these crimes. I have a firsthand understanding of how dangerous these criminals are. Simply stated, America's doors should not be opened to people who commit such crimes. If Senator Cornyn believes there are loopholes, I am happy to plug them, although I would note that the Secretary of Homeland Security, the Attorney General, the President, and others seem satisfied.

For that reason, I will support the alternative amendment offered by Senator Kennedy which would add these offenses and others to the grounds for inadmissibility.

There is a right way to ensure dangerous criminals don't enter the country and there is a wrong way. Unfortunately, the amendment we are debating goes about it the wrong way. Let me explain.

Under the Immigration and Nationality Act, good moral character is a prerequisite for a variety of benefits and privileges, the most important being naturalization. Therefore, the law lists a series of characteristics which exclude a person from the definition of ``good moral character'': for example, a person whose income is derived principally from gambling or one who has given false testimony for the purpose of obtaining benefits or one who has been convicted of an aggravated felony. This, of course, makes perfect sense. These individuals as a general rule should not get on a path to naturalization.

But this amendment would change the definition of ``good moral character'' in a very novel and unsettling way: It would exclude from that definition one who the Secretary of Homeland Security or the Attorney General determines, in the unreviewable discretion of the Secretary or the Attorney General, to have been at any time an alien described in section 212(a)(3) or 237(a)(4). These sections list a series of security-related grounds under which an alien is excludable or deportable. Those grounds, sensibly enough, include espionage, sabotage, terrorist activity, and any other unlawful activity. Anyone convicted of such offenses or even indicted for such offenses should be, of course, excludable. But that is not what this amendment says. This amendment would give the Secretary of Homeland Security and the Attorney General unreviewable discretion to make a determination as to good moral character.

First, as I have previously said, I am not inclined to expand the powers of the current Attorney General in any substantive way, much less to expand his power to make important unreviewable decisions. Setting aside my grave hesitation about this particular Attorney General, as a general rule, I don't believe we ought to prevent judges from reviewing important decisions which can affect life, liberty, and property. This would violate one of the most fundamental principles of American democracy--judicial review, a principle we have honored for centuries.

The second issue is even more unsettling. That is, under the proposed amendment, a person could be determined to lack ``good moral character'' if the unreviewable decision is made that he or she is ``described in'' these two specific sections of the immigration code.

``Described in,'' what exactly does it mean to be ``described in'' a statute? Not ``convicted'' under a statute, not ``in violation'' of a statute, not ``indicted'' under a statute but merely ``described in'' it.

Who knows what it means? I have found no precedent for this formulation. Is it consistent with American values to grant the Attorney General and the Secretary of Homeland Security the unreviewable discretion to say that a person is ``described in'' those statutes; the unreviewable power to say that somebody is engaged in ``unlawful activity''; and the unreviewable power to then deny them the benefits and privileges of American law?

That is not my experience as a prosecutor. I found due process to be important and valuable.

The amendment does not stop there. It would allow this unreviewable discretion to be based on evidence which the accused would never have the opportunity to confront.

Madam President, like you, I have spent my professional life in the American legal system, a good deal of it I spent as a U.S. attorney and as an attorney general. My experience is that our American system of law stands on some fundamental principles, among them that people can be aware of the charges brought against them, that people have an opportunity to confront the evidence used against them, that the prosecution and the judge are not rolled into one, and that we have judicial review of important decisions affecting people's rights and privileges. These are basic principles, and they represent core American values.

I do not know why we have to keep getting up to defend this. This is bedrock stuff. From the suspension of habeas corpus, to the administration's legal defense of torture, to ``extraordinary rendition,'' and so on, we have seen relentless efforts to chip away at bedrock principles of American law. With this amendment, there they go again.

Of course, we must do everything proper and necessary to protect our borders and keep Americans safe. But to throw out the separation between prosecution and judge, to throw out the opportunity to understand and explain evidence used against you, to throw out our ancient principle of judicial review, to allow Government officials to take away rights and privileges without answering to anyone? I do not think so.

These principles are too dear to be thrown away so lightly. Our country has been through a lot over the years, and these principles have survived and flourished, to lie today in our hands, in our stewardship, to protect and to pass on, as they were passed on to us.

I do not think this immigration issue is so terrifying that we need to throw these principles away now over immigration. We are made of sterner stuff than that.

I ask my colleagues to oppose Senator Cornyn's amendment No. 1184.

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