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Visa Waiver Program: Gateway for Foreign Fighters or First Line of Defense Against Them?

Over the past several months, a heated debate has erupted over whether the Visa Waiver Program (VWP) could be exploited by foreign fighters traveling to Syria to fight for jihadist groups and then returning to the US, possibly to conduct an attack.

Following the terrorist attacks on the offices of the satirical newspaper Charlie Hebdo in Paris, the Visa Waiver Program hitthe 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.

In recent 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.

Homeland Security Today reported that 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."

In response to all the concerns and debate over the VWP, the House Committee on Homeland Security’s Subcommittee on Border and Maritime Security held a hearing today to discuss whether the VWP is keeping the nation safe.

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 or less without first obtaining a visa. The VWP constitutes one of a few exceptions under the Immigration and Nationality Act in which foreign nationals are admitted into the United States without a valid visa.

Brian Michael Jenkins, senior adviser to the RAND president at the RAND Corporation, asserted ISIS is a dangerous organization operating a sophisticated propaganda campaign. Over the past year, ISIS has continuously taunted the US with propaganda videos calling for attacks on American soil.

“Through its strategy of terror, exaltation of violence as a recruiting theme, attraction to and assembly of the most fervent and most ruthless followers, and deliberate rejection of any constraints, ISIL is creating a dangerous population that cannot be easily pacified or reabsorbed into normal life,” Jenkins said.

Moreover, the recent estimates indicate that 20,000 foreign fighters have traveled from other countries to join the fight in Syria and Iraq. 3,400 have come from Europe and other Western countries, including 150 Americans, putting ISIS’s overall strength at as many as 31,000 fighters.

Although the US must act swiftly to deal with terrorist spillover from the Middle East, abandoning the VWP would not necessarily ensure security and would deprive the US of significant commercial, diplomatic and cultural benefits.

According to Jenkins, the VWP application and review process requires extensive documentation by the applicant, including an in-person interview with a consular official. In fiscal year 2013, approximately 11 million residents of non-VWP countries applied to enter the US on non-immigrant visas. While 9 million were approved, 2 million were refused entry.

Eliminating the program would overstretch consular resources without the guarantee of improved security. However, Jenkins said there are several lines of defense that can be used to intercept foreign fighters attempting to enter the US.

For example, intelligence is crucial to intercepting foreign fighters and mitigating potential attacks. US officials can also make improvements to the Terrorist Identities Datamart Environment (TIDE), No Fly List and other databases which serve as the primary mechanisms to identify returning foreign fighters.

However, Jenkins asserted the first line of defense consists of all international efforts to reduce the number of volunteers going to jihadist fronts. “While such efforts depend nearly entirely on foreign actions, the United States can nonetheless encourage and support them,” Jenkins said.

In addition, the Electronic System for Travel Authorization (ESTA), the automated system that determines the eligibility of visitors to travel to the United States under the VWP, could be further enhanced. ESTA, which was recently updated, allows information obtained through ESTA to be matched against the information contained in terrorism databases managed by the National Counterterrorism Center.

Moreover, Jenkins also suggested identifying populations of passengers who are low-risk so the Transportation Security Administration (TSA) can focus its efforts on flagging high-risk individuals. Similarly, TSA could develop algorithms that could help security officials detect passengers who do pose a risk. However, Jenkins also says there is no “xray for a person’s soul.”

“The VWP is not perfect, but neither are non-VWP procedures,” Jenkins said. “The objective should be a level of security higher than the level we had before the VWP was initiated.”

Similarly, Dr. Marc Frey, senior director of Steptoe and Johnson, LLP, asserted that the unequivocal answer to the question of whether the VWP is keeping our nation safe is, “Yes.” According to Frey, the VWP ensures the US remains open to trade while keeping terrorists out.

Frey said the VWP enables individualized and recurrent screening of travelers against law enforcement and security databases; it mandates bilateral and multilateral information and intelligence sharing; it requires secure passports to confirm identity; and it permits regular audits of the security standards of participating countries.

Created in the late 1980’s, the VWP has evolved over the past several decades. Dr. Frey notes that while critics of the VWP often cite the case of the “Shoe Bomber” Richard Reid, who as a British citizen traveled under the VWP in December 2001, many changes have been made to enhance the VWP since then. In particular, in 2003, new requirements were put in place to tighten passport security standards for VWP travelers.

“That the modernized VWP enhances US security is widely recognized by security experts across the political spectrum,” said Frey. “The last three secretaries of homeland security, for example, have praised the program’s contribution to US and international security. Indeed, for precisely that same reason, both the Bush and Obama administrations have added countries to the VWP.”

Suspension of the VWP would be a “damaging and wrongheaded” action with severe economic and diplomatic repercussions, according to Frey, who believes the disappearance of the program would undermine relationships with the US’ closest allies at a time when partnerships are critical in facing common threats, such as ISIS.

“While emotional responses often occur in times of heightened security concerns, any discussion of the VWP and US security must remain focused on the facts,” Frey said. “And the facts are that the VWP has proven to be an effective leverage point for raising and maintaining security standards while providing unprecedented levels of information sharing and access, allowing the United States to better manage risk.”

Speaking to the future of the VWP, Roger J. Dow, president and chief executive officer of the US Travel Association, asserted suspension of the “VWP would do incalculable harm to both our national and economic security.”

According to Dow, the VWP is the largest source of inbound overseas travel in the US, providing 90 days of visa-free travel for qualified individuals from 38 countries. In 2013, more than 19.5 million travelers—61 percent of overseas visitors to the US—arrived in the US through the VWP. These travelers generated $190 billion in economic output for the US economy and supported nearly one million jobs.

Dow said travel is not only important for the US economy, but also for national security. Travel is an important “soft power” tool that allows individuals from other nations to come to the US and form impressions based on their visits. Not only does travel strengthen the nation’s global image, it also creates security alliances between VWP partner nations.

“Shutting down programs like the VWP that not only facilitate travel but also provide valuable information to our counterterrorism and law enforcement officials is not a formula to keeping us safe,” Dow said.

Dr. Steven P. Bucci, director of the Douglas and Sarah Allison Center for Foreign and National Security Policy at the Heritage Foundation, also testified that the VWP is valuable tool which boosts security, diplomacy, trade and tourism.

“Allowing individuals to visit the US and enjoy our country can improve the foreign public’s understanding and appreciation for America and our culture,” Bucci said. “By extending the privilege of the VWP to other nations, we deepen diplomatic ties with friendly governments and allies, as well.”

However, Bucci also said there is room for improvement. He recommended improving the ESTA application process and imposing consequences on countries who do not meet the terms of the VWP. The US must also be judicious in how it expands membership in the program, he noted.

But while information sharing has dramatically improved since the Government Accountability Office issued a report in 2011 that found only 13 of the 36 VWP countries were sharing information, Congress needs to ensure these nations hold to their agreement. As of February 2014, nearly all VWP nations had agreed to share information.

“The threat of ISIS and radicalized Westerners is real and the US should be using all the intelligence tools at its disposal to find and stop these terrorists,” Bucci said. “The VWP is one of those tools, and to stop it now would make the US less secure, less prosperous, and less engaged with friends and allies. Instead, we should be looking to improve and expand the program.”

Homeland Security Todayhttp://www.hstoday.us
The Government Technology & Services Coalition's Homeland Security Today (HSToday) is the premier news and information resource for the homeland security community, dedicated to elevating the discussions and insights that can support a safe and secure nation. A non-profit magazine and media platform, HSToday provides readers with the whole story, placing facts and comments in context to inform debate and drive realistic solutions to some of the nation’s most vexing security challenges.

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