Closing the Wrong Visa Loopholes

After the San Bernardino terror attack, Congress rushed to address security gaps in visa-free travel but addressed the wrong ones, leaving out visitors from “allied” countries such Saudi Arabia which have actually produced terrorists who attacked the U.S., note Georgianne Nienaber and Coleen Rowley.

By Georgianne Nienaber and Coleen Rowley

Only a few crickets chirped after our 2014 warning of gaps in the Visa Waiver Program (VWP). Our second post, however, came out at the same time the President and Congress had suddenly clicked into gear to tighten the program, obviously in reaction to the terrorist attacks in Paris and San Bernardino.

Very likely their new-found concern is also due to officials having discovered the worrisome answer to our all-important question asking how many of the dozens of citizens from waiver participating countries, who now, in hindsight, have been identified as participants in recent terrorist incidents, were NOT ever listed on the key “terrorist watch lists.” Thus making them eligible to easily enter the U.S.

King Salman of Saudi Arabia and his entourage arrive to greet President Barack Obama and First Lady Michelle Obama at King Khalid International Airport in Riyadh, Saudi Arabia, Jan. 27, 2015. (Official White House Photo by Pete Souza)

It’s been revealed that at least one of the Paris attackers would not have been flagged if he had sought to enter the U.S. through the VWP. Nor was San Bernardino shooter Malik who entered the U.S. on a “fiancé visa” reportedly on any of key databases. How many more are like that? We’ll only know if investigative reporters pry such embarrassing facts out of Homeland Security officials.  It’s good the President and Congress finally started worrying about visa travel but unfortunately Congress is still in denial about the real problems. We could not find any discussion of the deeper, root problem with the Terrorist Identities Datamart Environment (TIDE) watch list, that even though it lists over 1.1 million persons, it is still somewhat under-inclusive (as well as very over-inclusive, with wrong names and other “hay” piled onto the stack).

Intelligence analysts cannot be faulted given the difficulty, if not impossibility, of the task they were given to make sense of the post 9/11 (once secret and illegal) programs to “collect it all.” “All” is the operative word, being mostly non-relevant information.

Nor, not surprisingly, could we find any politician lamenting his or her terrible mistakes in having okayed the various post 9/11 wars and bombing campaigns to re-make the Mideast, what some warned would be like “hitting a hornets’ nest.” These blunders have only succeeded in vastly increasing the number of terrorist incidents as well as the level of hatred in the world. (State Department records showing terror attacks skyrocketing 6,500 percent since 2002.)

Instead, in its mad rush to push something out to look as if they were quickly remedying the problems, the House skipped normal debate that comes from holding committee meetings, passing its bizarre “Trump-lite” blanket discriminatory provisions in H.R. 158, the Visa Waiver Program Improvement Act of 2015, that would bar citizens of participating countries with Syrian, Iraqi, Sudanese or Iranian ancestry from participating in the waiver program even if they have never set foot in any of these countries.

A backlash naturally erupted from civil liberties and minority rights groups. For instance, according to the ACLU’s reading of the bill, a person who was born and raised in France but whose father is a Syrian citizen would be forced to get a visa before visiting the United States, even if that person has a French passport and has never been to Syria.

In a press release Tuesday, NIAC Action, a group that lobbies on behalf of Iranian Americans, raised well-founded objections to the bill, saying that in the long run it threatens to harm Americans of Iranian descent.

“Given that the Visa Waiver Program is reciprocal, participating countries can respond by blocking Iranian-American travelers from traveling without a visa,” the group said. “Since Iran considers any children whose fathers are Iranian nationals to also be Iranian nationals, a wide swath of the Iranian diaspora may be targeted by this legislation. This is a dangerous, slippery slope.” Even worse, in their hurry, is the congresspersons’ choice of the four specific countries to designate for “blanket” exclusion: Iraq (which was supposed to be a democratic paradise by now), Syria, Sudan and (most bizarrely) Iran, whose nationals have not ever launched a terrorist attack inside the U.S.

Yet, countries like Saudi Arabia (well known as the main country of origin for Al Qaeda, ISIS and the “fountainhead” of Wahhabi terrorism), Pakistan, Yemen, Qatar, Kuwait, UAE, Egypt, Jordan, Libya, Nigeria, Chechnya and other nations and regions from where terrorist perpetrators have actually come are not designated. This truly makes zero sense, making us wonder if congresspersons have any clue as to the nature of the threat from ISIS and Al Qaeda terrorism.

Certainly it’s fair to ask if the congresspersons who voted for or support these “reforms”, demonstrating their apparent lack of concern about travelers/immigrants with ties to Saudi Arabia (like Malik), have read the “28 pages” from the Joint Intelligence Committee Inquiry’s Report, reportedly documenting Saudi Arabia’s support for Al Qaeda, Osama bin Laden and the 9/11 terrorists. (Although the U.S. government has kept the 28 pages classified and blacked out to the general public, congresspersons are allowed to read them inside a secure facility if they comply with strict security protocol.)

Over 30 congresspersons did warn after H.R. 158 was passed, in a Dec. 11 letter to Senate Majority and Minority Leaders, of “unintended consequences” in disqualifying such populations in a blanket way. These congresspersons wisely recommended that provisions that discriminate based on dual citizenship based solely on ancestry should be eliminated; that exceptions should be made for those who spent time in Iraq, Syria and other designated countries to provide medical or humanitarian aid or as journalists or researchers; and that a “sunset provision” be enacted to require changes to the VWP be reauthorized after a specified period of time.

At the same time, these congresspersons approved of common sense requirements for all VWP travelers to possess an unexpired, fraud resistant electronic passport; new requirements for Interpol screening of travelers and reporting on theft of passports.

On the other hand, some congresspersons and senators (including Sen. Amy Klobuchar, D-Minnesota) who back tightening visa waivers are working at cross-purposes by simultaneously calling for a “no fly zone” in Syria. The proposed “no fly zone” would help retain the already porous border where passports are not always needed to cross.

This, along with jihadists’ use of false passports, makes it impossible to ascertain if a VWP applicant has recently crossed from Turkey into Syria or Iraq to fight with ISIS or any of the Al Qaeda affiliated groups. The porous borders have long been a problem but such a “no fly zone” would presumably guarantee that the Syria-Turkey border stays porous. Senators calling for a “no fly zone” ought to be asked how would self-reporting of an applicant’s suspicious travel to Syria or Iraq, effectively keep out a hard core “terrorist”?     The bottom line is that the proposed VWP reforms will undoubtedly curtail tourism, business and scholar-related travel (and hurt U.S. economic interests as well), but will do almost nothing to address the real weaknesses of the surveillance-watch-listing process used to cross-check visa and visa waiver applicants.

“Top Secret America’s” post 9/11 massive data collection fails to live up to its billing but has unfortunately lulled Americans into thinking it could keep them safe, no matter how many unjustified, stupid wars the U.S. launched, no matter how much terrorism and hatred it ratcheted up. The sad reality which our country’s leaders need to realize is that freedom of travel and endless war don’t mix well.

Georgianne Nienaber is a regular contributor to the Huffington Post as well as regional and international publications. She is a member of the Society of Professional Journalists and Independent Reporters and Editors. In May 2002, Coleen Rowley, the co-writer of this article and former FBI Agent and Minneapolis Division Legal Counsel, brought some of the pre-9/11 security lapses to light and testified to the Senate Judiciary Committee about the endemic problems facing the FBI and the intelligence community.