HH: Joined now by our favorite Senator, Jon Kyl of the great state of Arizona. Senator Kyl, welcome back, good to talk with you.
JK: Thanks, Hugh. I’m glad you’re still saying that.
HH: Oh, I actually think you guys did the best you could, and you learned stuff. What’s going to happen next?
JK: Well, what we are going to try to do is to talk to our Senators who were objecting to proceeding last night, Senator Sessions, Senator DeMint, and some of the other Senators on the Republican side, and get a list of the amendments that they want to have considered, and massage that list as best we can, present it to the other side, the majority leader, and say look, we can do this in two days, three days, whatever it takes. This is a big deal, let’s get back to it, finish it up, and move on. And we’ll see if the majority leader, then, will be willing to do that. I think with a bill of this historic significance, with a subject as profound as illegal immigration is, surely it’s more important to take this up than the next thing. Do you know the next thing is Harry Reid wants to take up? Now this is really important.
HH: No, what is it?
JK: Are you sitting down, Hugh?
JK: Well, we’re going to take up the Senate’s time debating whether or not we should censure, or express no confidence in Alberto Gonzales as Attorney General. That’s important business.
HH: Well, you know, I also understand there’s a collision over judges, and we’ll come back to that. But I want to get to the brass tacks, Senator Kyl. I oppose the bill as it had, when it got pulled off the floor last night, because it didn’t build all the fence, didn’t get the border guards up as quickly as possible, was going to give probationary benefits to people from countries of special concerns, blah, blah, blah. Are there going to be changes made so that people like me who favor regularization within a context of very vigilant security measures are going to be satisfied? Or is it going to be, you know, pretty much the same bill that I have to go back to opposing again?
JK: Well, I’m not sure whether you’ll support it or not, but two things. First of all, the reason that I voted against cloture, in other words, I supported our conservatives’ right to continue to offer their amendments…
JK: …is because we want to give everybody an opportunity to offer these amendments, have them voted on, and have them approved. So that’s point number one, even though I do support moving ahead with the bill as you know, I felt it was important to give our guys a full and complete chance to get the amendments heard. Secondly, Lindsey Graham and I have an amendment that is partially a result of you, partially a result of our work in going through the bill, partial result of listening to all of our constituents. We have put together an additional enforcement package that is several pages of just a whole different variety of things that go to the enforcement questions, to make sure that we do the enforcement that we say we’re going to do in here, and make sure that all of the enforcement, from overstaying of visas to you name it, all the different provisions are adequately enforced, and, and, by the way, provide in effect, mandatory spending to make sure that all of the appropriations that have to occur do in fact occur.
HH: What about the…let’s get right to the Middle Easterners here illegally from countries like Saudi Arabia and Jordan, and other places where there’s jihadist networks, Senator Kyl. Would they continue to be treated just like economic illegal immigrants from Mexico?
JK: As you and I discussed before, there is no differentiation of the individual from a country like this, and an individual from another country. But clearly, the background checks that will be performed are going to look very carefully into each individual’s background. And the fact that they’re from potentially a terrorist sponsoring country is obviously going to be a factor.
HH: Any chance of getting that explicitly recognized? Because I did talk to a couple of Con law professors who believe that certain due process rights are going to attach to these previously unprotected, due process wise, illegal immigrants the moment 601H kicks in.
JK: The honest answer is I have not tried to change it. I don’t think anybody else will try to change it. That will remain a matter that you disagree with in the bill.
HH: What about having the entire fence built before the 601H probationary benefits kick in? Is there going to be another amendment on getting more of the fence done as a trigger?
JK: You’re talking about the entire 700 miles that’s been authorized?
HH: Or more of it. It’s right now at what, 350?
JK: Yeah, the bill calls, doesn’t let anything happen until 370 miles are built. And the total amount that’s authorized is about 700. I don’t think that any of the other amendments that I’ve seen condition the trigger on building more than the 370 miles. But it is true that that’s not the end of it. They keep building. They don’t stop at 370.
HH: But the trigger for Z visa issuance would be 370, as opposed to 500…
JK: Yes, 370, correct. Now there was an extension of the vehicle barriers from 200 miles to 300 miles. That was adopted by the Judd Gregg amendment.
HH: Can I…why wouldn’t they up it to satisfy the security people, Senator? Why not go to 600 or 550, something?
JK: I think the only reason, Hugh, was that the…on the pace that they are on with the contractors they’ve hired to do this, with as much speed but with the cost benefit that you’re not doing a Manhattan Project on it essentially, that they know that they can complete 371 miles within the 18 month period that they’re talking about. They weren’t sure that they could do a whole lot more than that within the 18 month period. Now 18 months is simply a guess as to when the trigger will be pulled. The employee verification system is the long pole in the tent. That’s what’s going to determine how quickly it’s done. That could take longer. And if it takes 20 months, or 24 months, for example, then you’re going to see a lot more fence built than 371 miles, because they’re going to keep on building.
HH: Then the real question for me becomes why not push them harder, because it is Manhattan Project importance, Southern border security, and the 601H probationary set of benefits, travel and employment. Any changed contemplated to those, Senator Kyl? If not, why not?
JK: The answer on the fence again is 371 miles of additional fencing is a lot of additional fencing. And I don’t think we should minimize the effect of 20,000 Border Patrol agents, and 370 miles of fencing, and 300 miles of vehicle barriers. That is a lot, and that will have a dramatic impact on reducing illegal immigration. And I’m sorry, the second part of the question?
HH: Why give travel and employment rights the day after the background check is not bounced back, why not wait…
JK: Okay, yeah, thank you.
HH: Why not wait for two years?
JK: Yeah, first of all, that day, what we’re saying is that the Department of Homeland Security has to check the database that day. Actually, there are two databases, and there may be a third, all of which have to be checked that day. And they won’t issue the probationary card if the information comes back negative, if the person’s a criminal or a terrorist or a gang member, or whatever. Now there are other ways that we will also be able to check to see whether somebody might be a terrorist, besides being on one of these two or three lists. You know, you may get information about a terrorist cell, they’ve got some guy’s phone number in there, and you check it out, and sure enough, it’s Joe Blow who we gave a probationary card to. We can always go back and get Joe Blow and say you are now out of this country, because we’ve now determined that you are ineligible.
HH: But that’s where…
JK: So we have…go ahead.
HH: Senator, can I keep you, or are you rushing? I know you’re…
JK: No, no, no. That’s fine.
HH: I’d love to keep you over, because what I want to ask you about is the opinion of my Con law professors, left and right, is that Joe Blow has due process rights the moment 601H kicks in, and you won’t be able to throw them out of the country the next day. So you’re a good Con lawyer, I want to come back and talk to you about that gap, and the gap in the fence, and the FBI.
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HH: Senator Kyl, when we went to break, I had a couple of legal objections that my brothers in the Con law professoriate have agreed with me on. One of them is under 601H, after the background check does not come back rejected, we believe under the Matthews V. Eldridge test that procedural due process protections will kick in, so that they will have protections, especially with goofy circuits like the 9th Circuit looking at this, and that even if subsequent to that first 24 hours something shows up that we don’t like, it isn’t going to be a walk in the park to expel these people. Can language at least be put into this bill to protect against such…you know, it’s a Constitutional issue, so you can’t really legislate against it, but you could have a sense of the Senate in there at least.
JK: Yeah, I’m not sure, Hugh. As you know the rights begin to attach a few miles in from the border, and a few days after you arrive. So the courts have basically said unless you’re caught at or near the border, and unless you’re taken out within a few days, then rights do attach to you simply by virtue of the fact that you are in, that you have been and are in the United States for a while. And I don’t know whether issuing the probationary card will add to those rights or not. It could well. I’m not certain. But it would be the difference between automatic renewal, which I think would be doubtful in this circumstance in any event, and a process that exists in the deportation procedural process laws.
HH: That is to me an increment of some significance, and I think we agree on the analysis there.
JK: Yes, yes.
HH: And that’s one of my concerns. The second one goes back to…the San Antonio Express News series on the tens of thousands of illegals who’ve come through the Southern and the Northern border from countries of interest. I don’t know if you’ve had a chance to read that, yet, Senator Kyl.
JK: Yes, yes, I did, yeah.
HH: And to me, it seems that people from those countries, while certainly eligible, because most of them, the vast majority of them are going to be refugees and good people. But that if they don’t have documents, or we can’t check their documents, like Afghanistan or Saddam’s Iraq, that some sort of greater showing should be on their burden than a Mexican immigrant, or a Spanish speaking immigrant. And that…
JK: I may, I may have misunderstood you on this, because I understood your position there to be that they should not be considered. And if I’m in error, I apologize.
HH: Oh, no. That’s not it.
JK: If it’s a matter of a finer screen, I think as a practical matter, a finer screen will in fact be applied to them, but I confess to you that we don’t…I mean, we haven’t written it into the bill. But I think the reality is that there will be a finer screen, but that may be something that’s done by regulation than by statute.
HH: Well, see, if there was a positive screening, as opposed to a negative screening, meaning that they had to make an affirmative showing of loyalty to the United States, which is as opposed to merely having a negative, and that would applies to countries categorized by the Department of State of being of special concern. I think that goes a long way towards solving the due process question as well. But now I want to come back…so I hope you’ll consider that. I…
JK: Yeah, that’s a lot easier to do. I appreciate that.
HH: Now I also am wondering, after Senator Kennedy, who wants this bill badly, saw what happened, isn’t your leverage a lot more, Senator Kyl, so that the enforcement first people, of whom I’m somewhat allied, can say to you now, hey look, Senator Kennedy knows he’s not going to get this bill, he has to give you more. He has to give you a lot more FBI agents, and a lot more DHS security screeners, and a lot more Border Patrol. Isn’t that the reality now?
JK: I believe that there is truth to what you say, and in fact, the amendment that Lindsey Graham and I have drafted, that I mentioned earlier, does a lot of those kinds of things. There is a delicate balancing point at which his people will walk as well. And I know, you see, here’s the other issue. They are fixated on this business of we have eliminated chain migration. They hate that. And so they keep coming back and saying well, if you’re going to get anything more, then we want something more. And so it’s a delicate balance between us forcing some additional enforcement provisions here before they finally say no more, or else we want more on the family migration. So it’s a very delicate proposition. But I do think we have some additional leverage, yes.
HH: And last question, in this debate, two of your colleagues, Senator Sessions and Senator DeMint, came to sort of stand in for the hard core enforcement first people, but still open to a deal. Are they involved in the renegotiations, Senator Kyl?
JK: Well, they will be critical to getting this list of amendments. In fact, they are the people we met with and said okay, please get us the amendments that you want to have considered, because I mean, I voted against cloture to let them get their amendments up.
HH: Yup, yup.
JK: And so now they’ve got to produce, and give us their amendments, so that we can take those to Reid. And as long as there’s a reasonable number of them, and we can get them disposed of within a reasonable time, I think it’ll be hard for Harry Reid then to not go back to the bill and try to finish it.
HH: Senator Kyl, always a pleasure, and an instruction to speak with you. We’re still on the other sides of this bill, but I look forward to continuing the conversation and getting more updates from the guy on the front lines. Thank you for wearing the asbestos for the last few weeks, Senator.
End of interview.