Following the terrorist attacks on the offices of the satirical newspaper Charlie Hebdo in Paris last week, the Visa Waiver Program (VWP) hit the headlines again, with Sen. Dianne Feinstein (D-Calif.) calling the VWP the ‘Achilles’ heel of America.”
Feinstein’s comments emerged amid looming fears that the program is a gateway for terrorists to enter the United States. The Senator expressed concern over the rising number of citizens from the visa-waiver countries—especially Western nations—traveling to Syria to fight for jihadist groups and returning to the US, possibly to conduct an attack.
"[Terrorists] can come back from training, they go through a visa waiver country, and they come into this country,” Feinstein said on CNN Sunday. “Now, there are no-fly lists. There are terrorist lists. But they’re in the tens of thousands and even millions, so it’s difficult to ferret someone out."
Feinstein also believes there are terrorist "sleeper cells" in the US that could lead to similar attacks on the homeland.
"I think there are sleeper cells, not only in France, but certainly in other countries, and, yes, even in our own," Feinstein said. "So I think this calls for vigilance. It calls for seeing that the national security organizations of our country — the intelligence community — is funded fully, is directed ably, is cooperating with . . . British intelligence, French intelligence, German intelligence, as we do."
Rep. Michael McCaul (R-Texas), chairman of the House Committee on Homeland Security, has raised similar concerns. During an interview with CBS’ "Face the Nation" Sunday, McCaul said, “Western Europe, again, is more lenient in their travel restrictions. And we have a visa waiver-free system where they can fly in the United States without even having a visa. We need to look at all sorts of things like that."
Is the Visa Waiver program a pipeline for terrorists?
The VWP is administered by the Department of Homeland Security (DHS) and enables eligible citizens or nationals of designated countries to travel to the United States for tourism or business for 90 days orless without first obtaining a visa.
The VWP constitutes one of a few exceptions under the Immigration and Nationality Act (INA) in which foreign nationals are admitted into the United States without a valid visa. In 2012, nearly 20 million visitors entered the United States under the program, accounting for 40 percent of overseas visitors, according to a 2014 Congressional Research Service (CRS) report on the program.
In response to terrorism concerns, in November 2014 Homeland Security Today reported DHS was tightening visa restrictions and that those traveling to the US through VWP would be required to provide additional information.
DHS Secretary Jeh Johnson said travelers from the 38 VWP countries where a visa is not required for US entry would have to provide additional passport data, contact information and other potential names or aliases in their travel application submitted via the Electronic System for Travel Authorization (ESTA) before they could travel to the United States.
"We are also confident these changes will not hinder lawful trade and travel between our nation and our trusted foreign allies in the Visa Waiver Program,” Johnson said in a statement in November.
The CRS report though indicates there’s debate about whether the VWP increases or decreases national security, since travelers under the VWP do not undergo the screening traditionally required to receive a B nonimmigrant visa.
Defenders of the program believe VWP is critical to national security. A new white paper issued by members of international law firm Steptoe & Johnson LLP, How the Visa Waiver Program is Keeping America Safe, reaffirms that VWP is central to keeping the homeland safe and details how suspending the program would be harmful our national security.
The white paper said critics of the VWP often cite the example of “Shoe Bomber” Richard Reid, a British citizen who traveled under the VWP in December 2001, as an example of using the program to evade security checks that would have otherwise been performed.
However, a number of reforms have been put into place in the past thirteen years to mitigate this risk.
Steptoe and Johnson stated the security benefits provided by the VWP include: better data about who poses a threat, documents that are harder to forge, better foreign security standards and routine auditing of those standards by the US government.
“While some may claim that bypassing the consular interview creates a security loophole, the evidence to support this view is flimsy at best,” the white paper said. “To the contrary, the evidence demonstrates that the VWP enhances our ability to detect and prevent terrorist travel, ensures elevated security standards for member countries, incentivizes prospective members to meet these elevated security standards, and gives the United States access to unprecedented levels of intelligence and information.”
“To improve US and international travel security, we should seek to enhance and expand the VWP, not curtail it,” the white paper concluded.
At a recent speech at The Heritage Foundation, former Secretary of Homeland Security Michael Chertoff also made the case for continuing the VWP.
“We are in a dangerous place in the world, perhaps more dangerous than in the past 10 years. And that is because of the proliferation of terrorist groups, Chertoff said,” rejected the call by some in Congress to scale back the VWP, saying “It would be a huge mistake.”
Chertoff concluded that, “Now is not the time to handicap or dismantle our intelligence collection programs … that have literally been at the cornerstone of protecting the United States since 2001.” VWP is “a plus-plus for our national security and our economic security,” Chertoff said.
Congressional action to terminate VWP
Over the past several months, the future of the VWP has been called into question. Fears terrorists will enter the US under the VWP because the VWP bypasses the consular interview have prompted the introduction of legislation to roll back or terminate the program.
Reps. Tulsi Gabbard (D-Hawaii) and Scott Perry (R-Pa.) introduced legislation in September that would suspend the visa waiver program for countries with citizens that have joined the Islamic State (IS). The lawmakers believe the legislation would prevent potential terrorists working with IS from entering the US.
"If we do nothing to close this loophole, and allow a terrorist to carry out an attack on our homeland, the impacts will be devastating. Action is needed now," Gabbard said.
"We all learned on September 11, 2001 and in Benghazi two years ago that waiting to act until terrorists plan – or execute – an attack will cost American lives," Perry said. "Terrorists with Western passports pose a clear risk the United States."
But defenders of the program disagree.
“Suspension or termination of the program would be a blow to US security as it would result in the loss of significant leverage over the security standards of both current and prospective members, to say nothing of the economic and diplomatic consequences,” stated the Steptoe and Johnson white paper.
“For current VWP members, suspension of the program would undermine current information and intelligence-sharing mechanisms and deprive the US of visibility into their security practices, including those to prevent radicalization and identify foreign fighters," the paper warned.