A Visa to "Snitch": An Addendum to Cox and Posner

Cox and Posner's landmark contribution is the first article to have highlighted the challenges of information asymmetry in immigration screening. While Cox and Posner have undoubtedly made a significant contribution, there is a critical oversight in their framework: they do not discuss the importance of targeted ex post mechanisms of screening educational elites. This Article is an attempt to remedy Cox and Posner's omission. Why is this oversight so problematic? In the post-9/11 world, U.S. immigration policy currently finds itself on the horns of a dilemma. While immigrant educational elites are critical to U.S. economic growth, terrorist networks have stepped up their recruiting among well-trained elites. In visa application processes, screening out terrorism suspects is notoriously complicated, in part because terrorist networks are typically difficult for outsiders to penetrate. Yet, the same cannot be said of elite networks. Indeed, the term "global elite" is meant to reflect precisely the fact that a network of rich, well-educated persons from developing countries exists, and that members of this network are now bona fide members of the Western elite. Social network theory tells us that these elites are typically only a few degrees of separation apart. Yet while a primary goal of immigration law is screening, the United States currently finds itself in the absurd position of screening elite aliens utilizing what this Article terms "insufficiently networked" information. This screening typically occurs with little reference to the closely-knit elite networks whence these aliens originate, even as these networks are far better placed to access information about their members. A primary goal of immigration law should be to leverage these networks to supply the government with early warning signals when U.S. visa recipients display terrorist sympathies. This Article seeks to mitigate the challenges of information gathering about such elites through an under-utilized and under-theorized sanction, namely, visa revocation. If not as a de jure matter, certainly as a de facto matter, elites typically have access to U.S. immigration privileges that are not easily available to their fellow nationals. Visas are status conveyers, and their loss may undermine business and educational opportunities dear to global elites. In a proposal referred to in shorthand as "a visa to snitch," I impose a "duty to snitch" on elite visa recipients. Each time that a visa holder commits a terrorist act, the authorities would determine which persons in her network knew of her terrorist sympathies and failed to report them. These persons would face visa cancellation, or at a minimum, a reduced prospect of visa renewal, unless they were able to demonstrate that they had good reason not to know or not to report. INTRODUCTION I. SETTING UP THE THEORETICAL PROBLEM A. Historical Context for Institutional Design Choices: Why Ex Post Screening Has Been Neglected B. Ex Post Screening as the Dominant Strategy C. Cox and Posner's Oversight II. ABDULMUTALLAB A. A Note on Methodology B. Abdulmutallab's Visa Application C. The Situation Then and Now D. Outsourced Diplomacy: Motivating the Right People E. The Screening and Sanctioning Principles F. What Is the Appropriate Sanction? G. Why the Solution Can Work III. WHY DID THE ELDER MUTALLAB SNITCH? A. Background B. Rational Motives C. Norms-based Motives D. What Are the Implications of a Norms-based Analysis? IV. THE DANGERS A. The Dangers of the Imposition of an Affirmative Duty More Generally B. The Dangers of Corruption in Social Networks C. McCarthyite Tendencies: Undermining Social Trust CONCLUSION INTRODUCTION The legal scholarship has much to say about questions of immigrant "type," namely, which immigrants, among the millions who seek entry, should be admitted to the United States and in what numbers. …