T5 B61 Visa Policy- Kyl Fdr- 10-30-02 Feinstein-Kyl Letters to Powell Re Border Security and Visas 210

8/14/2019 T5 B61 Visa Policy- Kyl Fdr- 10-30-02 Feinstein-Kyl Letters to Powell Re Border Security and Visas 210

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PATRICK J. LEAHY, VERMONT, CHAIRMANE D W ARD M. KENNEDY, MASSACHUSETTSJO SEP H R. BIDEN, JR., DELAWAREHERBERT KOHL, WISCONSINDIANNE FE1NSTEIN, CALIFORNIARUSSELL D. FEINGOLD, WISCONSINCHARLES E. SCHUMER, NE W Y O R KRICHARD J. DURBIN, ILLINOISMARIA CANTWELL, WASHINGTONJOHN EDWARDS, NORTH CAROLINA

O RRIN G. HATCH, UTAHSTROM THURMOND, SOUTH CAROLINACH ARLE S E . GRAS.SLEY, IOWAA R L E N SPECTER, PENNSYLVANIAJON KYL, ARIZONAMIKE DEWINE, OHIOJEFF SESSIONS, ALABAMASAM BROWNBACK, KANSASMITCH McCONNELL, KENTUCKY COMMITTEE ON THE JUDICIARY

WASHINGTON, DC 20510-6275

To: Secretary of State Colin PowellFrom: Judiciary Subcommittee on Technology, Terrorism and Government InformationChairman Dianne Feinstein an d Ranking Member Jon KyiOctober 30 , 2002As we mentioned in the letter to you, we would appreciate receiving answers to the followingquestions before November 12.I. Questions on the Enhanced Border Security and Visa Entry Reform Act ("BorderSecurity Act):1) To your knowledge, has the report in Section 201 of the Border Security Act, due in August,been completed on identifying law information and intelligence community information neededby the State Department to screen visa applicants and by INS to determine admissibility ordeportability? If not, please tell us why it hasn't been completed.2) Section 202 of the Border Security Act requires the Secretary of State to develop andimplement "no fewer than 4 languages designated as high priorities by the Secretary of State,after consultation with the Attorney General and the Director of the Central Intelligence Agencyand develop and implement sensitive algorithms on those languages within 18 months afterenactment." What steps has the State Department taken to do this? What languages are the StateDepartment going to choose?3) Section 304 of the Border Security Act requires that a terrorist look-out committee bemaintained within each U.S. mission. Each committee is required to submit monthly reports tothe Secretary of State describing its activities and whether or not information on known orsuspected terrorists was developed during the month. Has the Secretary of State received thesereports? To my knowledge the State Department has not submitted to Congress, as required bySection 304, any quarterly reports on the status of the committees. Why has no report beensubmitted to Congress?4) The General Accounting Office report referred to in our letter to you details repeatedly theneed for additional training in counter-terrorism and other national security areas fo r consularofficers. It is our understanding that, currently, the only new training that officers are receivingpost-9/11 is a one-day training seminar on employing interview techniques provided by the FBIto better screen visa applicants. Section 305 of the Border Security Act requires that consularofficers be specially and extensively trained in the identification of individuals ineligible toreceive visas on security and related grounds (section 212(a)(3) of the Immigration andNationality Act). Please update us on what additional training might be offered to consular


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officers.5) Please provide us an update on whether the Justice Department and the Department of Statehave determined, as provided for in Section 307 of the Border Security Act, whether any visawaiver countries ar e failing to report the theft of passports.6) Pleaser provide us with an update, as provided for in Section 308 of the Border Security Act,on the entry of stolen passports into its existing data system.7) Please report on how the Department of State is complying with the requirement, Section 606of the Border Security Act, that State retain, for a period of seven years, every application of anonimmigrant visa.8) The Border Security Act directs the Attorney General and Secretary of State to issue machine-readable, tamper-resistant biometric visas by October 26 , 2004. Please provide an update on thetimeline for meeting this deadline. [Question was submitted for the record after the October 9Judiciary Subcommittee on Terrorism hearing.]9) Several months ago, the State Department conducted a staff briefing on Border Security Actrequirements, including the biometric requirement for October 26 , 2004. The State Departmentindicated in that briefing that "all nonimmigrant visas incorporate a photo that can easily bematched by INS inspectors to the database record that is available at all ports of entry." How, inthe absence of reliable data capture by a U.S. government entity, does the State Dept assert that anon-digitized photograph used for nonimmigrant visas meets the biometric features requirementintended by the authors of the Border Security Act? [Question was submitted for the record afterthe October 9 Judiciary Subcommittee on Terrorism hearing.]II . Questions based on information provided for in the October GAO report entitled"BORDER SECURITY: Visa Process Should be Strengthened as an Antiterrorism Tool"1) Why did the State Department in its written response to the GAO about its report, after all theevidence presented that showed that the 9/11 terrorists should no t have received visas basedsolely on Section 214(b) of the TNA, continue to declare "based on the information available tothe interviewing consular officers, and in fact all information available to the Department at thatpoint, the applicants qualified for visas"?

2) The State Department instituted a 30-day name check system called Visas Condor in January2002. It applies to individuals fo r whom the 20-day name check is required. Can you provide ageneral description of which visa applicants are subject to the Visas Condor check? Pleaseprovide us with a complete list of which visa applicants are subject to the 20-day check. Towhich governmental organizations (FBI, CIA) does the State Department send cables requestinginformation?3) According to the GAO, as of August 1, 2002, the Foreign Tracking Terrorist Task Force[FTTTF] had identified a total 567 visa applicants who may pose a threat to national security. Of


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the 567 identified, 280 of them were determined to be ineligible by the task force based on theINA's terrorism provision. However, the State Department received the "refusalrecommendation" on 200 of the 280 after the 30-day Visas Condor program hold requirementhad expired. Since the 30 days ha d expired, those 20 0 individuals -were given visas anyway! Ina press briefing, your spokesman said that i t w as now the responsibility of the INS to find them.What is your response to this? What do you know about these individuals? Were the rest of the567 applicants who were determined to be threats, according to the taskforce, turned down forvisas or given visas? Do you or the INS know where any of the 567 with approved visas aretoday?4) The Visas Condor security check applies only to visas adjudicated after January 2002. Thecheck does not apply to previously issued visas. How is the State Department working toidentify the still valid visitor visas (some visas are good for 10 years) of individuals who shouldbe subject to the Visas Condor check?5) According to the Justice Department, Visas Condor program namecheck provides sufficientevidence to deny a visa under the INA's terrorism provision. Justice believes that the lawpresumes a visa applicant is inadmissible and places the burden of proof on the applicant toestablish his admissibility. Therefore, a consular officer need not have specific evidence that theapplicant participated in terrorist activities or associations to justify a denial. The StateDepartment, according to the GAO report and the written response from the State Department tothe GAO, does not agree. Please provide us with an update on how Consular Affairs plans toresolve this important national security issue. One of the recommendations of the GAO is to"establish governmentwide guidelines on the level of evidence needed to deny a visa on terrorismgrounds under INA section 212(a)(3)(B)." Are you going to work with the Justice Department toestablish such guidelines?6) According to the GAO report, the State Department's own terrorist system TIPOFF identified178 applicants in FY 2001 as known or suspected terrorists, but State denied visas to only 81 ofthose applicants. Please provide us with comprehensive information about why the rest of thevisas were issued, despite being identified by in the State Department's system, TIPOFF.7) According to the GAO, the State Department (based on the Border Security Act's state-sponsor-of terrorism provision) requires personal interviews for all applicants who are over theage of 16 and are from countries identified as state sponsors of terrorism. For which othercountries is the State Department requiring such interviews? What types of interviews arerequired fo r individuals from Saudi Arabia?8) What is the State Department's interview policy for individuals who are being processed in athird country for a U.S. visa? We note that, according to the GAO report, in the London,England and Ottowa, Canada office there is concern that too many interviews are being waived,based on the department's "best practices," which allows for the waiving of a visa applicationbased on a belief that an applicant will not illegally immigrate to the U.S.9) Training of Consular officers - please see question 4 under Border Security Act.


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10) How do you plan to provide for recommended changes, or strengthening, of languagecapability among consular officers at various posts around the world? For example, according tothe GAO report, "Cairo reported that 90 percent of interviews are conducted in Arabic, yet mostofficers lack strong Arabic skills." When local staff are used to fill the language gap, how arethey screened?12 ) According to the GAO report, the "State Department plans to 1) issue new rules that willeliminate much of the discretion consular officers have in such things as waiving interviews ofvisa applicants and using travel agencies to process visa applications, 2) reduce the period ofmaximum validity of nonimmigrant visas from 10 years to 5 years, and 3) redraft departmentguidance on when consular officers can issue less than-than-full-validity visas." Why haven'tthese changes in policy been pursued by Consular Affairs already?13) Please provide us with current copies of the State Department's Foreign Affairs Manual ,Consular Management Handbook, Consular Best Practices Handbook. We realize that ConsularAffairs officers also rely on other State Department information (ie. telegrams, informalcommunications, etc.) when making decisions about visa applicants, but these printed materialswill provide us with the most up-to-date formally distributed materials provided for visaprocessing guidance to consular officers.


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PATRICK J. LEAHY, VERMONT, CHAIRMANE D W ARD M. KENNEDY, MASSACHUSETTSJOSEPH R. BIDEN, JR., DELAWAREHERBERT KOHL, WISCONSINDIANIME FEINSTEIN, CALIFORNIARUSSELL D. FEINGOLD, WISCONSINCHARLES E. SCHUMER, NE W Y O R KRICHARD J. DURBIN, ILLINOISMARIA CANTWELL, WASHINGTONJOHN EDWARDS, NORTH CAROLINA

ORRIN G. HATCH, UTAHSTROM THURMOND, SOUTH CAROLINACHARLE S E . GRASSLEY, IOWAA R L E N SPECTER, PENNSYLVANIAJON KYL, ARIZONAMIKE DEWINE, OHIOJEFF SESSIONS, ALABAMASAM BROWN BACK, KANSASMITCH McCONNELL, KENTUCKY COMMITTEE ON THE JUDICIARY

WASHINGTON, DC20510-6275

October 30, 2002The Honorable Colin L. PowellSecretaryUnited States Department of StateWashington, B.C. 20520Dear Secretary Powell:

We are writing to express our continued concerns about the State Department's internal visa-processing policies those in place both before and after terrorist attacks of September 11, 2001. Inthe year since the attacks, we have learned that the terrorists carried them out in a highlysophisticated, meticulously planned, and skillful manner.

Our nation can no longer afford to be complacent about the underlying weaknesses in ourvisa system that gave the terrorists confidence that our immigration laws could be circumvented.Therefore, we ask for your personal attention and commitment to overseeing the Bureau of ConsularAffairs in order to make the policy changes needed to keep terrorists out of the United States.

A s chairman and ranking member of the Senate Judiciary Committee's Subcommittee onTechnology, Terrorism, and Government Information, we have held numerous hearings to identifyState Department and Immigration and Naturalization Service weaknesses in visa processing. Atthose hearings, we asked officials from the State Department and the INS to recommendadministrative and legislative changes to the immigration system. We also received testimony fromseveral policy and technology experts on how new technologies may assist our government agenciesin keeping terrorists out of the United States.

Most recently, we held a hearing on October 9 entitled, "Tools Against Terror: How theAdministration is Implementing New Laws in the Fight to Protect Our Homeland." At that hearing,we highlighted a recent media report revealing that internal State Department visa policies made itpossible fo r most of the 19 hijackers to obtain visas to the United States. It was also revealed thatstrict adherence to our nation's immigration laws should have prevented the approval of theirapplications.

As we understand Section 214(b) of the Immigration and Nationality Act (INA), consularofficers are empowered with broad authority to deny visas, particularly in cases where the applicantfails to meet the burden of proving that he o r she is eligible for a visa. This means that applicants fo ra nonimmigrant visa must demonstrate that they: (1) have a residence abroad an d strong ties to acountry that they have no intention of abandoning; (2) intend to leave the United States in a timelymanner; and (3) intend to engage in legitimate activities related to the nonimmigrant category.

The fact that several of the terrorist hijackers, including the ringleader, Mohammed Atta,failed to fully fill out their applications provided ample reason fo r denying the visas. According to


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The Honorable Colin L. PowellOctober 30, 2002Page 2information received by subcommittee staff, only one of the 15 terrorists provided an actual address;the rest listed only general locations, such as "California," "New York," Hotel D.C." and "Hotel."Only three of the 15 terrorists provided the name and street address of present employer or school, asrequired on the application. Only one of these applications had additional documentation orexplanatory notes provided by a consular officer that addressed any discrepancy or problem with theoriginal application.

We both serve on the Senate Select Committee on Intelligence and, as such, have beeninvolved in the investigation into whether the attack on September 11th could have been prevented.The fact that visas were issued to at least 15 terrorists whose applications should have been denied isa significant revelation. Yet, nothing from the recent remarks by State Department spokesmensuggest much concern about the matter.

Moreover, it is troubling that, despite our requests over the past year for clarification aboutwhether the terrorists' visas should have been granted, we were instead informed by the media andthrough a recently released General Accounting Office (GAO) report entitled "Border Security: VisaProcess Shouldbe Strengthened as an Antiterrorism Tool" about the visa issuance proceduresfollowed at the consulates from which the terrorists obtained their visas.

For more than a year, it has been the official position of the Bureau of Consular Affairs that13 of the 15 terrorists from Saudi Arabia were personally interviewed, and that there was nothing intheir visa applications or in the interviews that would have prevented their acquiring a visa.According to the GAO, however, only two of the Saudi applicants were actually interviewed, and all19 hijackers had substantial omissions and inconsistencies on their visa applications that should haveraised concerns about why they wanted visas.

The GAO reported that these applicants were presumed to be eligible based upon on pre-9/11internal State Department policies that stressed that any applicant from Saudi Arabia or the UnitedArab Emirates was to be considered a "good case" and, therefore, exempt from interviews.Moreover, the GAO noted that applicants from these two countries were not required to "completetheir applications or provide supporting documentation."

It further concerns us that in an October 2001 hearing before our Terrorism Subcommittee,Mary Ryan, the former Assistant Secretary of State for Consular Affairs, said that these visaapprovals were "a failure of intelligence rather than a failure of the visa system." To the contrary, itseems clear that extremely weak internal State Department visa policies resulted in visas beinggranted to the perpetrators of the September 11 attacks.

We would have hoped, at a minimum, that these attacks, and the passage of both the USAPatriot Act and the Enhanced Border Security and Visa Entry Reform Act ("Border Security Act"),would have led to a wholly new approach to visa processing on the part of the Bureau of ConsularAffairs. We are encouragedby improvements in information gathering and in certain other respects,and by the State Department's acceptance of the GAO's conclusions and recommendations.


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The Honorable Colin L.PowellOctober 30, 2002Page 3

However, the following brings to light a small sampling of the problems that plaguedand,in many cases continue, to plaguethe visa processing system after the attacks on the World TradeCenter and Pentagon. After September 11, the State Department's Visa Express program, whichallowed travel agents to perform many processing tasks for certain visa applicants, continued formost Saudi Arabian applicants until congressional objections led to its suspension. -

In addition, the GAO's recent assessment of current State Department visa policies raisesserious national security concerns. One area highlighted by the GAO requiring your immediateattention involves a dispute between the Departments of State and Justice over State's legal authorityto deny a visa.

In a June 10, 2002 letter from Deputy Secretary of State Richard Armitage to DeputyAttorney General Larry Thompson, Secretary Armitage stated that some of the warnings on anapplicant that the State Department receives from the Justice Department's Foreign TerroristTracking Task Force (FTTTF) are insufficient cause to deny a visa.

Justice Department officials have said they believe the law presumes a visa applicant isinadmissible and places the burden of proof on the applicant to establish his admissibility, basedeither on the intending immigrant provision of the INA Section 214(b), or the terrorist-exclusionprovision of the INA Section 212(a)3(b). The Justice Department does not believe that a consularofficer needs specific evidence that the applicant participated in terrorist activities or associations tojustify a denial.

In contrast, according to the GAO report and State's written response to it, the StateDepartment asserts that specific evidence is mandatory. To resolve this dispute, the GAOrecommended that the State Department "establish government-wide guidelines on the level ofevidence needed to deny a visa on terrorism grounds under INA section 212(a)(3)(B)."

Therefore, we ask that you provide information on the steps that both State and Justice havetaken to resolve these differences and to establish clearer guidelines for Consular Affairs officers. Inparticular, given that we drafted the portion of the law that provides the means of gathering theintelligence that Assistant Secretary Ryan claimed was lacking, we must respectfully disagree withthe opinion that more specific evidence is needed to deny an application.

The GAO also made general recommendations for key administrative policy changes withinthe State Department. Although the State Department has stated its general support for the GAOrecommendations, we are concerned that the GAO, rather than the State Department, is currently thepredominant agency identifying and suggesting important visa-processing policy changes. Wewould appreciate your assurance that the Bureau of Consular Affairs is aggressively initiating andimplementing the necessary policy changes to better link the visa processing system to ourcounterterrorism and national security goals.


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The Honorable Colin L. PowellOctober 30, 2002Page 4As authors of the Border Security Act, we note that the State Department now has many new

tools, in that law and others, to strengthen the national security component of its visa-processingsystem. These include the requirement that the Secretary of State "implement enhanced securitymeasures for review of visa applicants and to staff the programs associated with these measures, andto provide special, extensive training for consular officers,"

Importantly, the Secretary has also been authorized under the Act "to increase the feecharged for machine-readable visas in order to recover the costs of providing consular services." Wenote, however, that most of the consular officers interviewed for the GAO report said "moreguidance and training would help them to use the visa process as an antiterrorism tool to detectquestionable applicants." In addition, the GAO report found a wide divergence of opinions andpractices among overseas posts regarding "(1) the authority of consular officers to deny questionableapplicants a visa, (2) the role of the visa process in ensuring national security, and (3) the types ofchanges needed to deny a visa on terrorism grounds."

We believe it is appropriate for you to direct the Bureau of Consular Affairs to fullyimplement in a timely manner the reforms provided for in the border security law. To that end, wealso request that you provide the Subcommittee on Terrorism, Technology, and GovernmentInformation with a timely response to the attached questions regarding the State Department'scurrent visa policies. We also ask that you provide detailed description of the Department'senhanced security measures now guiding the visa review process.

We intend to hold a hearing on the matters discussed in this letter in the Subcommittee onTerrorism, Technology and Government Information at the beginning of the 108th Congress.Therefore, we would appreciate a response by no later than November 12, 2002.

Mr. Secretary, knowing of your commitment to eliminating the threat of terrorism against theUnited States and its citizens, we very much look forward to working with you in this importantendeavor. We thank you for your personal attention to this important matter.

Sincerely yours,

-)ianne Feinstein Chairman,Subcommittee on Technology,

Terrorism and Government Information

Jon KyiRanking MemberSubcommittee on Technology,

Terrorism and Government Information

Documents

T5 B61 Visa Policy- Kyl Fdr- 10-30-02 Feinstein-Kyl Letters to Powell Re Border Security and Visas 210