Last summer, four Tanza-nian Boy Scouts wandered away from an international scout jamboree in Virginia and wound up in the hands of the Immigration and Naturalization Service. An immigration judge ruled that since the scouts had valid tourist visas, INS had no legal authority to detain and deport them. Yet surprisingly, they are still in an INS detention center – because INS refuses to release them to foster care while the case is being appealed. The top-notch law firm that volunteered to represent them has been unable to get the INS to budge, and the boys’ visas have now expired.

The Tanzanian scouts are just a few of the 5,385 unaccompanied or separated children held in custody by the INS last year alone. These children come from all over the world, fleeing hardship, poverty or persecution. Most are teen-agers, but some are much younger, pre-schoolers and even infants. These children may have been apprehended at ports of entry, such as airports, for lack of proper documentation, or detained years after they crossed the border without inspection. Under current law, the INS is put in the difficult position of being responsible both for the welfare of these children, and for conducting prosecutorial activity if the presence of these children violates the law.

Unlike its counterparts in Europe and Canada, the INS virtually imprisons these children, holding them at more than 90 facilities, the majority of which are “secure detention centers” that too often do not provide appropriate care or education for these children. Young, unfamiliar with our country or its laws, and usually speaking no English, these children are absolutely powerless without legal representation. And even pro bono counsel may not be able to help enough.

Whatever the merits of individual cases, we should be able to agree on one thing – that the welfare and well-being of these children belongs in the hands of someone other than their prosecutors. That is the focus of the Unaccompanied Alien Child Protection Act, introduced in the Senate by Sens. Dianne Feinstein and Lincoln Chaffee, and in the House by Reps. Zoe Lofgren and Chris Cannon. The bill, on which the Senate recently held hearings, would completely eliminate INS’ fundamental conflict of interest. It would place responsibility for the children’s care and treatment in an independent Department of Justice unit and also provide for the appointment of counsel and guardians ad litem to represent the interests of the children – and only the children.

Especially after Sept. 11, all Americans understand the critical role of the INS in protecting the nation’s borders. We want the INS to have all the tools – money and manpower – it needs. But there is something more than can be done. By passing the Unaccompanied Alien Child Protection Act, we can free the INS from the unnecessary burden of caring for children and free it to do the work it does best.

Robert Hirshon is president of the American Bar Association and shareholder in the Portland law firm Drummond Woodsum & MacMahon.