[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]


NATIONAL SECURITY AND LAW ENFORCEMENT: BREAKING THE NEW VISA WAIVER LAW 
                            TO APPEASE IRAN

=======================================================================

                                 HEARING

                               BEFORE THE

                     COMMITTEE ON HOMELAND SECURITY
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED FOURTEENTH CONGRESS

                             SECOND SESSION

                               __________

                           FEBRUARY 10, 2016

                               __________

                           Serial No. 114-51

                               __________

       Printed for the use of the Committee on Homeland Security
                                     

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                     COMMITTEE ON HOMELAND SECURITY

                   Michael T. McCaul, Texas, Chairman
Lamar Smith, Texas                   Bennie G. Thompson, Mississippi
Peter T. King, New York              Loretta Sanchez, California
Mike Rogers, Alabama                 Sheila Jackson Lee, Texas
Candice S. Miller, Michigan, Vice    James R. Langevin, Rhode Island
    Chair                            Brian Higgins, New York
Jeff Duncan, South Carolina          Cedric L. Richmond, Louisiana
Tom Marino, Pennsylvania             William R. Keating, Massachusetts
Lou Barletta, Pennsylvania           Donald M. Payne, Jr., New Jersey
Scott Perry, Pennsylvania            Filemon Vela, Texas
Curt Clawson, Florida                Bonnie Watson Coleman, New Jersey
John Katko, New York                 Kathleen M. Rice, New York
Will Hurd, Texas                     Norma J. Torres, California
Earl L. ``Buddy'' Carter, Georgia
Mark Walker, North Carolina
Barry Loudermilk, Georgia
Martha McSally, Arizona
John Ratcliffe, Texas
Daniel M. Donovan, Jr., New York
                   Brendan P. Shields, Staff Director
                    Joan V. O'Hara,  General Counsel
                    Michael S. Twinchek, Chief Clerk
                I. Lanier Avant, Minority Staff Director
                            
                            
                            C O N T E N T S

                              ----------                              
                                                                   Page

                               Statements

The Honorable Michael T. McCaul, a Representative in Congress 
  From the State of Texas, and Chairman, Committee on Homeland 
  Security:
  Oral Statement.................................................     1
  Prepared Statement.............................................     3
The Honorable Bennie G. Thompson, a Representative in Congress 
  From the State of Mississippi, and Ranking Member, Committee on 
  Homeland Security:
  Oral Statement.................................................     6
  Prepared Statement.............................................     9

                               Witnesses

Mr. R. Gil Kerlikowske, Commissioner, U.S. Customs and Border 
  Protection, U.S. Department of Homeland Security:
  Oral Statement.................................................    10
  Prepared Statement.............................................    12
Ms. Hillary Batjer Johnson, Deputy Coordinator, Homeland 
  Security, Screening, and Designations, Bureau of Counterrorism, 
  U.S. Department of State:
  Oral Statement.................................................    15
  Prepared Statement.............................................    18

                             For the Record

The Honorable Jeff Duncan, a Representative in Congress From the 
  State of South Carolina:
  VWP Waiver Recommendation Paper................................    30

                                Appendix

Questions From Ranking Member Bennie G. Thompson for R. Gil 
  Kerlikowske....................................................    51
Questions From Honorable Barry Loudermilk for Hillary Batjer 
  Johnson........................................................    52

 
NATIONAL SECURITY AND LAW ENFORCEMENT: BREAKING THE NEW VISA WAIVER LAW 
                            TO APPEASE IRAN

                              ----------                              


                      Wednesday, February 10, 2016

             U.S. House of Representatives,
                    Committee on Homeland Security,
                                                    Washington, DC.
    The committee met, pursuant to call, at 11:10 a.m., in Room 
311, Cannon House Office Building, Hon. Michael T. McCaul 
[Chairman of the committee] presiding.
    Present: Representatives McCaul, King, Miller, Duncan, 
Clawson, Katko, Hurd, Carter, Walker, Loudermilk, Ratcliffe, 
Donovan, Thompson, Jackson Lee, Richmond, Keating, Payne, 
Watson Coleman, and Rice.
    Chairman McCaul. The Committee on Homeland Security will 
come to order. The committee is meeting today to examine the 
administration's flawed implementation of the Visa Waiver 
Program Improvement and Terrorist Travel Prevention Act. I now 
recognize myself for an opening statement.
    We are holding this hearing today because Congress is 
confronted with a dilemma, which has grave implications for our 
National security and for our democratic process. In December, 
the President signed important measures into law to improve 
counterterrorism screening of foreign travelers coming into the 
United States.
    These enhancements were urgently needed in the wake of the 
Paris attacks and in light of the high terror threat 
environment. But now the President has decided that he is going 
to break this law.
    He plans to do so, in part, to accommodate the world's 
leading state sponsor of terror, Iran. I believe this decision 
could have serious consequences for our security and, perhaps, 
more importantly, far-reaching consequences for our democracy.
    This legislation at issue is H.R. 158, the Visa Waiver 
Program Improvement and Terrorist Travel Prevention Act of 
2015. It was authorized by this committee's Vice Chair, Mrs. 
Miller, and it implements several major recommendations from 
the committee's bipartisan Task Force on Combating Terrorist 
and Foreign Fighter Travel.
    The bill passed the House overwhelmingly, 407-19, and it 
was included in the year-end spending bill signed by the 
President. This was one of the most significant pieces of 
security legislation Congress considered last year.
    It tightens security checks overseas and makes it harder 
for terrorists to exploit the Visa Waiver Program to get into 
the United States. The threat is real. For instance, more than 
6,000 Westerners have gone to fight in Syria and Iraq, and many 
of them are from Visa Waiver Program countries.
    This means, they can enter the United States more quickly 
and easily than other travelers. Nearly 2,000 of these 
individuals have already come back from the battlefield. 
Accordingly, the new law sends a clear message to Visa Waiver 
Program citizens. If you have recently visited Syria, Iraq, 
Iran, or Sudan, you must go through additional screening before 
coming to the United States.
    The law requires these individuals to get a regular visa, 
which includes an in-person interview and the submission of 
their fingerprints. Congress included specific exceptions, 
including allowing individuals to still travel visa-free to 
America, if their reason for being in a terrorist hotspot was 
for military service or official Government business.
    But during bipartisan negotiations over the bill, the 
administration asked for other exceptions. They wanted to let 
individuals skip the new security procedures if they had 
traveled to these countries for journalistic, humanitarian, 
cultural, or business purposes.
    Congress explicitly rejected these exceptions, and they did 
not appear in the final text of the bill signed into law. It 
was clear that such broad loopholes would undermine the purpose 
of the law and make it difficult and costly to implement.
    Many of us are also aware that jihadists commonly use 
excuses like humanitarian assistance to disguise their actual 
reasons for traveling to a terrorist safe haven. In fact, 
earlier this week, 7 people were arrested in Spain for 
supplying arms to ISIS, disguised as humanitarian aid workers.
    However, Congress did agree to provide a narrow waiver to 
allow a Visa Waiver Program traveler to avoid the extra step of 
visiting a U.S. Embassy if it was, ``in the law enforcement or 
National security interests of the United States.''
    To be clear, this waiver was intended to apply to special 
circumstances, such as when a foreign traveler is being 
investigated or monitored. The waiver would ensure that those 
activities are not disrupted and that a suspect is not tipped 
off. I believe that the administration clearly understood this. 
But then Iran weighed in.
    In December, the Iranian regime complained to the Obama 
administration that the law would hurt their economy by 
deterring European business travelers from visiting. Why? 
Because doing so would mean they had to go through additional 
security steps the next time they came to America.
    Iran even argued that this was a violation of the nuclear 
deal. In a rush to appease them, Secretary Kerry wrote a letter 
declaring that the law could be waived, ``So as not to 
interfere with legitimate business interests of Iran.''
    Let me be clear. Nowhere does the law include this 
authority. In fact, Congress explicitly rejected the waivers 
requested by the White House. I joined other Congressional 
leaders in writing to Secretary Kerry to remind him what the 
law actually says.
    Yet, last month, the administration announced it would be 
able to exempt several categories of individuals from these 
requirements. In fact, they claimed that Visa Waiver Program 
citizens who traveled to terrorist hotspots for humanitarian or 
journalistic purposes, or to Iran for business purposes, could 
be exempted from the new security process.
    Once again, this law does not include such exemptions. They 
were proposed by the administration. They were discussed, but 
they were rejected by Congress. The administration even agreed 
to the final text and publicly supported the bill.
    I cannot overstate how serious I believe this issue is, as 
a separate, but equal, branch of the Government, the branch of 
Government that makes the law. The Executive should implement 
that law according to the will and intent of the Congress.
    The President's moving forward with an illegal 
implementation of the law that he signed only weeks ago, 
breaching the trust between our 2 branches of Government and 
potentially putting our Nation's security at risk.
    These requirements were imposed for a reason, to ensure 
individuals who have recently been in terrorist sanctuaries do 
not pose a threat to our country. The law does not forbid Visa 
Waiver Program travelers from coming to America. It simply adds 
an additional layer of security.
    But the administration's false reading of the law has 
Congress and the American people wondering, ``How much further 
will we bend backwards for Iran?'' We have paid them ransom to 
release detained Americans. We freed up billions of dollars for 
their rogue regime. Now, the President is ignoring our own laws 
so we don't interfere with Iran's economic growth.
    Today you will hear our witnesses say these exceptions will 
only be used on a case-by-case basis. But you are not allowed 
to break the law on a case-by-case basis. When you are the 
President, you are not supposed to break it at all, and 
certainly not for a state sponsor of terror with American blood 
on its hands.
    [The statement of Chairman McCaul follows:]
                Statement of Chairman Michael T. McCaul
                           February 10, 2016
    We are holding this hearing today because Congress is confronted 
with a dilemma which has grave implications for our security and for 
our democratic process.
    In December, the President signed important measures into law to 
improve counterterrorism screening of foreign travelers coming into the 
United States.
    These enhancements were urgently needed in the wake of the Paris 
attacks and in light of the high terror threat environment.
    But now the President has decided he is going to break this law--
and he plans to do so, in part, to accommodate the world's leading 
state sponsor of terror, Iran.
    I believe this decision could have serious consequences for our 
security and--perhaps more importantly--far-reaching consequences for 
our democracy.
    The legislation at issue is H.R. 158, the ``Visa Waiver Program 
Improvement and Terrorist Travel Prevention Act of 2015.'' It was 
authored by this committee's Vice Chair, Ms. Miller, and it implements 
several major recommendations from the Committee's bipartisan Task 
Force on Combating Terrorist & Foreign Fighter Travel.
    The bill passed the House overwhelmingly, 407-19, and it was 
included in the year-end spending bill signed by President Obama. This 
was one of the most significant pieces of security legislation Congress 
considered last year--it tightens security checks overseas and makes it 
harder for terrorists to exploit the Visa Waiver Program to get into 
America.
    The threat is real. For instance, more than 6,000 Westerners have 
gone to fight in Syria and Iraq, and many of them are from VWP 
countries. This means they can enter the United States more quickly and 
easily than other travelers. Nearly 2,000 of these individuals have 
already come back from the battlefield.
    Accordingly, the new law sends a clear message to VWP citizens: If 
you have recently visited Syria, Iraq, Iran, or Sudan, you must go 
through additional screening before coming to the United States.
    The law requires these individuals to get a regular visa, which 
includes an in-person interview and the submission of their 
fingerprints.
    Congress included specific exceptions, including allowing 
individuals to still travel visa-free to America if their reason for 
being in a terrorist hotspot was for military service or official 
Government business.
    But during bipartisan negotiations over the bill, the 
administration asked for other exceptions.
    They wanted to let individuals skip the new security procedures if 
they had traveled to these countries for journalistic, humanitarian, 
cultural, or business purposes.
    Congress explicitly rejected these exceptions, and they did not 
appear in the final text of the bill.
    It was clear such broad loopholes would undermine the purpose of 
the law and make it difficult and costly to implement. Many of us are 
also aware that jihadists commonly use excuses like humanitarian 
assistance to disguise their actual reasons for traveling to a 
terrorist safe haven. In fact, earlier this week 7 people were arrested 
in Spain for supplying arms to ISIS disguised as humanitarian aid.
    However, Congress did agree to provide a narrow waiver to allow a 
VWP traveler to avoid the extra step of visiting a U.S. Embassy if it 
was, ``in the law enforcement or National security interests of the 
United States.''
    To be clear, this waiver was intended to apply to special 
circumstances, such as when a foreign traveler is being investigated or 
monitored. The waiver would ensure that those activities are not 
disrupted--and that a suspect is not tipped off.
    The administration clearly understood this.
    But then Iran weighed in. In December, the Iranian regime 
complained to the Obama administration that the law would hurt their 
economy by deterring European business travelers from visiting. Why? 
Because doing so would mean they had to go through additional security 
steps next time they came to America.
    Iran even argued that this was a violation of the nuclear deal. And 
in a rush to appease them, Secretary Kerry wrote a letter declaring 
that the law could be waived, ``so as not to interfere with legitimate 
business interests of Iran.''
    Let me be clear: Nowhere does the law include this authority. In 
fact, Congress explicitly rejected the waivers requested by the White 
House. I joined other Congressional leaders in writing to Secretary 
Kerry to remind him what the law actually said.
    Yet last month the administration announced it would be able to 
exempt several categories of individuals from the requirements. In 
fact, they claimed VWP citizens who traveled to terrorist hotspots for 
humanitarian or journalistic purposes--or to Iran for business 
purposes--could be exempted from the new security process.
    Once again: This law does not include such exemptions.
    They were proposed by the administration, discussed, and rejected. 
The administration even agreed to the final text without them and 
publicly supported the bill.
    I cannot overstate how serious this issue has now become. The 
President is moving forward with an illegal implementation of a law he 
signed only weeks ago, breaching the trust between our 2 branches of 
Government and potentially putting our Nation's security at risk.
    These requirements were imposed for a reason: To ensure individuals 
who have recently been in terrorist sanctuaries do not pose a threat to 
our country. The law does not forbid VWP travelers from coming to 
America--it simply adds an additional layer of security.
    But the administration's false reading of the law has Congress and 
the American people wondering, ``How much further will we bend 
backwards for Iran?''
    We have paid them ransom to release detained Americans, we have 
freed up billions of dollars for their rogue regime, and now the 
President is ignoring our own laws so we don't ``interfere'' with 
Iran's economic growth.
    Today you will hear our witnesses say these exceptions will only be 
used on a ``case-by-case'' basis.
    But you're not allowed to break the law ``case-by-case.'' When 
you're the President, you're not supposed to break it at all--and 
certainly not for a state sponsor of terror with American blood on its 
hands.
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

    Chairman McCaul. The Chair now recognizes the Ranking 
Member of the committee, Mr. Thompson.
    Mr. Thompson. Thank you, Mr. Chairman, for holding today's 
hearing.
    Commissioner Kerlikowske and Ms. Johnson, thank you, also, 
for appearing today.
    This committee has a long-standing, bipartisan interest in 
strengthening the Visa Waiver Program. In 2007, with the 
enactment of legislation I authored the implementation--
Implementing Recommendations of the 9/11 Commission Act.
    Congress required individualized security checks of 
travelers participating in a Visa Waiver Program. The program 
was established to--is known today as Electronic System for 
Travel Authorization, or ESTA, program.
    Under ESTA, citizens are eligible nationals of Visa Waiver 
Program countries, must obtain an Electronic Travel 
Authorization prior to boarding a plane in the United States. I 
have been pleased to see DHS, over the years, take timely 
action to adjust aspects of the ESTA program, in response to 
the demands of the ever-changing threat landscape.
    Yet, I came into this Congress, like many of my Republican 
colleagues, seeing the need for more reform to the Visa Waiver 
Program to bolster its security. That is why I co-sponsored 
H.R. 158, the Visa Waiver Improvement and Terrorist Travel 
Prevention Act, authored by Representative Candice Miller, the 
Chairman of our Border Security subcommittee.
    The Fiscal Year 2016 Consolidated Appropriations Act, 
better known as the Omnibus, included the language from H.R. 
158, requiring changes to the Visa Waiver Program. This 
comprehensive legislation, which was signed into law by the 
President on December 18, seeks to strengthen passport security 
requirements, enhance information sharing, and improve fraud 
detection.
    Importantly, it also requires any Visa Waiver country that 
fails to screen passports against INTERPOL's criminal and 
terrorism databases, to be terminated from the program. The 
provision that has garnered the most attention and is the focus 
of today's hearing, involves the changes in the eligibility for 
visa-free travel for some travelers from Visa Waiver countries.
    Under this new law, most individuals who have visited Iraq, 
Iran, Syria, and Sudan, in the last 5 years, or who hold dual 
citizenship with 1 of these 4 countries, would be ineligible 
for visa-free travel to the United States.
    This provision was central to the bipartisan agreement 
reached between Congress and the White House. During the 
negotiations, the restriction on dual citizens of Iran, Iraq, 
Syria, and Sudan, and travel history provisions that the 
Republicans were advancing, were sticking points.
    I was pleased when we were able to reach common ground on a 
carve-out for certain individuals who traveled to the 4 
countries for diplomatic or military service. Reaching 
agreement for other categories of travelers, including 
humanitarian aid workers and journalists proved to be elusive.
    I appreciate that all involved came together, in the 
interest of Homeland Security, to strike a compromise that the 
White House, House Republican leadership, and House Democratic 
leadership could accept.
    In the end, those of us involved in the negotiations 
understood that enacted would mean that, in most cases, 
travelers who triggered the citizenship or travel history 
limitation would have to go through the standard visa 
application process at a U.S. embassy or consulate.
    I was pleased that the law did allow the DHS Secretary to 
exercise discretion, with respect to these limitations, when 
doing so was in the law enforcement or National security 
interests of the United States.
    It is important that the Secretary be allowed to exercise 
discretion, with respect to certain individuals, on a case-by-
case basis. Within days of enactment of this law, questions 
emerged about the implications of the Visa Waiver Program 
security reforms on the deal that President Obama was able to 
reach to prevent Iran from becoming a nuclear state.
    At the time, I was taken aback, since it was hard to see 
how this Homeland Security bill had any bearing on the terms of 
the Iran deal. The issuance of a joint press release by the 
Departments of Homeland Security and State, on January 21, the 
day the Visa Waiver Program changes were to begin, did little 
to squelch those questions about the linkage.
    The press release, it was laid out, the administration's 
plan to exercise its waiver authority, identified 5 categories 
of travelers who could receive waivers from eligibility 
limitations set forth in the new law.
    One category specifically identified was individuals who 
travel to Iran for legitimate business purposes after July 14, 
2015, the same date the Iran deal was concluded. It will fall 
to the witnesses today to explain why we should not think that 
there is a linkage to the Iran deal, when it announces this 
category in a press release distributed across the globe.
    As someone who supported the granting of waiver authority 
to the Secretary of Homeland Security, I have questions about 
the approach and the tack that the administration has taken 
today.
    While Secretary Johnson may plan to consider, on a case-by-
case basis, whether to allow visa-free travel for National 
security purposes, the decision to list categories of travelers 
that can bypass visa screening at our embassies and consulate 
was a questionable one.
    The administration needs to be prepared to answer questions 
about its decision to create categories for waivers, including 
the degree to which intelligence informs the parameters. 
Additionally, the administration needs to explain why it 
decided to publish the categories, thereby creating an 
expectation for people who fall into these categories that they 
will be able to continue to travel, visa-free, to the United 
States.
    We need to understand, particularly, at a time when we know 
that there are some crafty, would-be terrorists eager to find 
new ways to work around security enhancements in the Visa 
Waiver Program, why the administration has chosen to be so 
public about how the DHS Secretary may exercise this 
discretion.
    In reviewing the categories, I have some questions about 
how the DHS Secretary will go about determining the legitimacy 
of the business-related purposes for travel to Iran. I look 
forward to hearing testimony from the witnesses about how many 
travelers might be eligible for the waivers identified in the 
joint press release and what kind of resources CBP will need to 
put processes in place to fully adjudicate the anticipated 
flurry of waiver requests from travelers in these categories.
    I think, Mr. Chairman, you see a lot of us have questions.
    Chairman McCaul. I appreciate that.
    Mr. Thompson. We look forward to the witnesses to provide 
some of the answers. With that, I yield back.
    [The statement of Ranking Member Thompson follows:]
             Statement of Ranking Member Bennie G. Thompson
                           February 10, 2016
    This committee has a long-standing, bipartisan interest in 
strengthening the Visa Waiver Program. In 2007, with the enactment of 
legislation I authored, the Implementing Recommendations of the 9/11 
Commission Act, Congress required individualized security checks of 
travelers participating in the Visa Waiver Program.
    The program that was established is known today as the Electronic 
System for Travel Authorization or ESTA program. Under ESTA, citizens 
or eligible nationals of Visa Waiver Program countries must obtain an 
electronic travel authorization prior to boarding a plane to the United 
States. I have been pleased to see DHS, over the years, take timely 
action to adjust aspects of the ESTA program in response to the demands 
of the ever-changing threat landscape.
    Yet, I came into this Congress, like many of my Republican 
colleagues, seeing the need for more reforms to the VWP program to 
bolster its security. That is why I co-sponsored H.R. 158, the Visa 
Waiver Improvement and Terrorist Travel Prevention Act, authored by 
Representative Candice Miller, the Chairman of our Border Security 
Subcommittee.
    The fiscal year 2016 Consolidated Appropriations Act, better known 
as the Omnibus, included the language from H.R. 158 requiring changes 
to the Visa Waiver Program. This comprehensive legislation, which was 
signed into law by the President on December 18, seeks to strengthen 
passport security requirements, enhance information sharing, and 
improve fraud detection. Importantly, it also requires any visa waiver 
country that fails to screen passports against INTERPOL's criminal and 
terrorism databases to be terminated from the program.
    The provision that has garnered the most attention and is the focus 
of today's hearing involves changes in the eligibility for visa-free 
for some travelers from VWP countries. Under this new law, most 
individuals who have visited Iraq, Iran, Syria, and Sudan in the last 5 
years or who hold dual citizenship with 1 of these 4 countries would be 
ineligible for visa-free travel to the United States. This provision 
was central to the bipartisan agreement reached between Congress and 
the White House.
    During the negotiations, the restrictions on dual citizens of Iran, 
Iraq, Syria, and Sudan and travel history provisions that the 
Republicans were advancing were sticking points. I was pleased when we 
were able to reach common ground on a carve-out for certain individuals 
who traveled to the 4 countries for diplomatic or military service. 
Reaching agreement for other categories of travelers, including 
humanitarian aid workers and journalists, proved to be elusive. I 
appreciated that all involved came together, in the interest of 
homeland security, to strike a compromise that the White House, House 
Republican leadership, and House Democratic leadership could accept.
    In the end, those of us involved in the negotiations understood 
that enactment would mean that, in most cases, travelers who triggered 
the citizenship or travel history limitation would have to go through 
the standard visa application process at a U.S. embassy or consulate. I 
was pleased that the law did allow the DHS Secretary to exercise 
discretion with respect to these limitations when doing so was ``in the 
law enforcement or National security interests of the United States.''
    It is important that the Secretary be allowed to exercise 
discretion with respect to certain individuals, on a case-by-case 
basis. Within days of enactment of this new law, questions emerged 
about the implications of the Visa Waiver Program security reforms on 
the deal that President Obama was able to reach to prevent Iran from 
becoming a nuclear state.
    At the time, I was taken aback since it was hard to see how this 
homeland security bill had any bearing on the terms of the Iran deal. 
The issuance of a joint press release by the Departments of Homeland 
Security and State, on January 21, the day the Visa Waiver Program 
changes were to begin, did little to squelch those questions about a 
linkage. The press release, which laid out the administration's plans 
to exercise its waiver authority, identified 5 categories of travelers 
who could receive waivers from eligibility limitations set forth in the 
new law.
    One category specifically identified was individuals who traveled 
to Iran for ``legitimate business purposes'' after July 14, 2015--the 
same date the Iran deal was concluded. It will fall to the witnesses 
today to explain why we should not think that there is a linkage to the 
Iran deal when it announces this category in a press release 
distributed across the globe.
    As someone who supported the granting of waiver authority to 
Secretary of Homeland Security, I have questions about the approach 
that the administration is taking here. While Secretary Johnson may 
plan to consider, on a case-by-case basis, whether to allow visa-free 
travel for National security purposes, the decision to list categories 
of travelers that can bypass visa screening at our embassies and 
consulates was a questionable one.
    The administration needs to be prepared to answer questions about 
its decision to create categories for waivers, including the degree to 
which intelligence informed the parameters. Additionally, the 
administration needs to explain why it decided to publish the 
categories--thereby creating an expectation for people who fall into 
these categories that the will be able to continue to travel visa-free 
to the United States.
    We need to understand, particularly at a time when we know that 
there are some crafty would-be terrorists eager to find new ways to 
work around security enhancements in the Visa Waiver Program, why the 
administration has chosen to be so public about how the DHS Secretary 
may exercise his discretion. In reviewing the categories, I have some 
questions about how the DHS Secretary would go about determining the 
legitimacy of the business-related purposes for travel to Iran.
    I look forward to hearing testimony from the witnesses about how 
many travelers might be eligible for the waivers identified in the 
joint press release and what kind of resources CBP will need to put 
processes into place to fully adjudicate the anticipated flurry of 
waiver requests from travelers in these categories.

    Chairman McCaul. I thank the Ranking Member for his 
leadership on this issue, as well.
    Other Members are reminded that opening statements may be 
submitted for the record.
    We are pleased to have a distinguished panel of witnesses 
before us today on this important topic. First, Gil 
Kerlikowske, was sworn in as commissioner of U.S. Customs and 
Border Protection in early 2014, taking the helm of the largest 
Federal law enforcement agency in the United States Government.
    He brings 4 decades of law enforcement and drug policy 
experience to the position. Formerly served 9 years as chief of 
police for Seattle, Washington. Before, he served as head of 
CBP--before serving as head of CBP, he led the Office of 
National Drug Control Policy.
    Thank you for being here today.
    Next, we have Ms. Hillary Johnson, deputy coordinator for 
homeland security, screening, and designations in the Bureau of 
Counterterrorism. Ms. Johnson oversees the designation of 
foreign terrorist organizations and individuals under the 
authorities of the Secretary of State, and terrorism screening 
and interdiction programs.
    I want to thank both of you for being here today. I think, 
given the gravity of the circumstances that we find ourselves 
here today, I will be administering an oath. If you would both 
now, please stand and raise your right hand.
    [Witnesses sworn.]
    Let the record reflect that both witnesses answered in the 
affirmative. The witnesses' full written statements will appear 
in the record.
    The Chair now recognizes Commissioner Kerlikowske to 
testify.

STATEMENT OF R. GIL KERLIKOWSKE, COMMISSIONER, U.S. CUSTOMS AND 
    BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY

    Mr. Kerlikowske. Chairman McCaul, Ranking Member Thompson, 
distinguished Members of the committee, I returned on Sunday 
morning from California, where CBP had an integral role in 
safeguarding the Super Bowl. I witnessed the numerous aspects 
of CBP's broad and complex mission all in one place, providing 
security and surveillance on the ground and from the air, 
screening cargo and deliveries for weapons and other dangerous 
items.
    CBP has a critical role in securing international travel 
against the threat of terrorists and their supporters, while 
facilitating lawful travel and tourism. Every day, we process 1 
million travelers.
    As you know, before boarding a U.S.-bound flight, most 
foreign nationals must obtain a non-immigrant visa, issued by a 
United States embassy or consulate, or the traveler must apply 
for travel authorization through CBP's ESTA program.
    Through ESTA, CBP conducts enhanced vetting of these 
applicants, in order to assess whether they are eligible to 
travel and whether they pose a potential risk to the American 
people. Over the last 15 months, we have worked with the DHS, 
under Secretary Johnson's leadership, to strengthen the 
security of the program, through enhancements to ESTA, in order 
to identify those who may pose a threat to the United States.
    We have introduced additional data fields that have 
increased the ability of CBP and the National Counterterrorism 
Center to identify applicants with potential connections to 
terrorism. In addition to these enhancements, this past August, 
DHS further announced security measures for Visa Waiver Program 
countries, including increased traveler data collection, 
analysis, and reporting, the requirement that INTERPOL's lost 
and stolen travel document database be used, and the required 
use of electronic passports, which contain additional security 
features.
    On December 18, the President signed into law the 
Consolidated Appropriations Act of 2016, which includes the 
Visa Waiver Program Improvement and Terrorist Travel Prevention 
Act of 2015, with some exceptions for official military and 
Government law.
    The law prohibits VWP travel for individuals who have been 
present, at any time, on or after March 1, 2011, in Iraq, 
Syria, or countries designated as state sponsors of terrorism, 
which currently includes Iran and Sudan. It also prohibits VWP 
travel for the individuals who are dual nationals, as of one of 
these countries and a VWP country.
    Well, we began implementing some of the changes required by 
the new law very quickly. We have already revoked or cancelled 
17,000 ESTA travel authorizations. We have established, in 
conjunction with our interagency partners, a terrorist travel 
prevention cell at our National targeting center.
    The cell will enhance the Department's efforts to identify 
and prevent foreign terrorist fighter travel. A subset of that 
cell's mission will be to scrutinize individual waiver requests 
on a case-by-case basis that is permitted under the new law.
    Additionally, CBP will add new fields to the ESTA 
application by the end of the month, and we will ask additional 
questions to further improve our ability to vet individual 
travelers and make decisions about their eligibility, in 
accordance with the recent changes.
    Well, as terrorists change their methods and tactics, and 
DHS is going to continue to work with our Federal and 
international partners to counter foreign fighter threats to 
the homeland.
    We will continue to strengthen our travel security programs 
and systems, enhance our capabilities to secure international 
air travel against terrorists and others who threaten the 
safety of the traveling public and the security of our Nation.
    Chairman McCaul, Ranking Member Thompson, and Members of 
the committee, thank you for the opportunity to testify today. 
I look forward to answering your questions.
    [The prepared statement of Mr. Kerlikowske follows:]
                Prepared Statement of R. Gil Kerlikowske
                           February 10, 2016
                              introduction
    Chairman McCaul, Ranking Member Thompson, and distinguished Members 
of the committee, thank you for the opportunity to testify on behalf of 
the Department of Homeland Security (DHS or the Department) and U.S. 
Customs and Border Protection (CBP) to discuss the Visa Waiver Program 
(VWP or ``the Program'') and implementation of the Visa Waiver Program 
Improvement and Terrorist Travel Prevention Act of 2015, which was 
enacted as part of the Consolidated Appropriations Act of 2016.
    On a typical day, CBP welcomes to the United States nearly 1 
million travelers--including foreign nationals who travel to the United 
States under the VWP--at our air, land, and sea ports of entry (POEs), 
almost 300,000 of whom arrive by air. The VWP, which is managed by DHS 
in consultation with the Department of State (DOS), permits citizens of 
38 countries \1\ to travel to the United States for business or tourism 
purposes for stays of up to 90 days without a visa. That does not mean 
VWP travelers are able to board a plane or vessel with no security 
checks. Rather, DHS thoroughly vets all VWP travelers against U.S. law 
enforcement and intelligence holdings prior to departure for the United 
States and, if permitted to depart, at additional points throughout the 
travel continuum.
---------------------------------------------------------------------------
    \1\ With respect to all references to ``country'' or ``countries'' 
in this document, it should be noted that the Taiwan Relations Act of 
1979, Pub. L. No. 96-8, Section 4(b)(1), provides that ``[w]henever the 
laws of the United States refer or relate to foreign countries, 
nations, states, governments, or similar entities, such terms shall 
include and such laws shall apply with respect to Taiwan.'' 22 U.S.C.  
3303(b)(1). Accordingly, all references to ``country'' or ``countries'' 
in the Visa Waiver Program authorizing legislation, Section 217 of the 
Immigration and Nationality Act, 8 U.S.C. 1187, are read to include 
Taiwan. This is consistent with the United States' one-China policy, 
under which the United States has maintained unofficial relations with 
Taiwan since 1979.
---------------------------------------------------------------------------
    In addition to the vetting and eligibility requirements for 
individual travelers, to be eligible for the VWP, a country must first 
meet statutory requirements, and then maintain high security standards 
to retain its VWP status. Additionally, DHS, DOS, and our interagency 
partners, conduct robust, National-level risk assessments--at least 
once every 2 years--that assess the impact of each program country's 
participation in the VWP on U.S. National security, law enforcement, 
and immigration enforcement interests. Far from being a security 
vulnerability, the VWP provides significant security benefits to the 
United States and its citizens. The VWP offers diplomatic and economic 
incentives to countries to further provide National security benefits 
to the United States, such as increased sharing of information on 
terrorists and criminals.
    CBP's multi-layered, intelligence-driven strategy is integrated 
into every aspect of our travel security operations at every stage 
along the international travel sequence. In concert with our 
international partners, DHS and CBP strive to ensure that travelers who 
present a potential risk are appropriately vetted and stopped before 
boarding a flight bound for the United States.
              from travel program to security partnership
    When Congress first authorized the VWP in 1986, the program was 
intended to facilitate low-risk travel to the United States, boost 
international trade and cultural links, and promote more efficient use 
of consular resources. Recognizing that global security threats have 
evolved dramatically since the 1980s, DHS and DOS have adapted the VWP 
to meet the challenges of the modern threat environment. These efforts 
have been most successful when working in concert with our partners in 
Congress.
    For instance, DHS collaborated with Congress to develop and 
implement the provisions of the Secure Travel and Counterterrorism 
Partnership Act of 2007, which was included as part of the Implementing 
Recommendations of the 9/11 Commission Act of 2007 (9/11 Act). This 
legislation transformed the VWP from a program that evaluated security 
threats on a country-by-country basis to a program with the added 
capability to screen individual travelers for potential threats. Under 
the 
9/11 Act, VWP countries are required to enter into bilateral 
information-sharing agreements regarding whether citizens and nationals 
of that country intending to travel to the United States represent a 
threat to the security or safety of the United States or its citizens, 
as well as the sharing of lost and stolen passport information, among 
others.
    The 9/11 Act also required DHS to develop the Electronic System for 
Travel Authorization (ESTA) to pre-vet prospective VWP travelers. Since 
January 2009, DHS has required all VWP travelers to obtain an ESTA 
authorization prior to traveling to the United States by air or sea. 
ESTA applicants must provide extensive biographic information, 
including their name, date of birth, place of birth, current residence, 
additional countries of citizenship, passport information, employment 
information, travel itinerary, and U.S. point of contact, among others. 
This information is vetted against DHS, DOS, Federal Bureau of 
Investigation (FBI), and intelligence community databases to determine 
if prospective VWP travelers pose a National security or law 
enforcement threat to the United States. If a prospective VWP traveler 
does not submit this information or is denied travel authorization, he 
or she may not board a plane or vessel bound for the United States.
    ESTA applicants are vetted against the same biographic databases as 
visa applicants. DHS vets all ESTA application information immediately 
and automatically against DHS TECS records, the FBI's Terrorist 
Screening Database (TSDB), and the DOS's Consular Lookout and Support 
System, as well as international databases, such as INTERPOL's Stolen 
and Lost Travel Document database. All ESTA applications are also 
vetted by the National Counterterrorism Center. This comprehensive 
vetting approach helps to ensure that travel authorizations are not 
issued to prospective VWP travelers who pose a threat to U.S. National 
security. Any would-be VWP traveler whose ESTA application is denied is 
referred to a U.S. Embassy or Consulate, where he or she would have to 
undergo the normal process to apply for a visa, including an interview 
by a consular officer and biometric screening.
    DHS recurrently vets ESTA data on a daily basis, which means that 
even though an applicant has an initially-approved authorization for 
travel, the authorization is continuously screened throughout its 
validity period against new derogatory information and is subject to 
further review and subsequent denial if necessary. This includes 
recurrent vetting against the TSDB (also known as the ``Terrorist 
Watchlist''). CBP adjudicates every ESTA application and subjects those 
that raise counterterrorism or admissibility concerns to additional 
scrutiny.
    ESTA has been a highly effective security and vetting tool that has 
enabled DHS to deny travel authorizations under the VWP to thousands of 
prospective travelers who may pose a risk to the United States, prior 
to those individuals boarding a U.S.-bound aircraft or vessel. Since 
ESTA's inception, CBP has approved more than 90 million ESTA 
applications and has denied more than 5,900 ESTA applications as a 
result of National security concerns. During that same period, CBP has 
also denied more than 165,000 ESTA applications for individuals who 
applied for an ESTA using a passport that had been reported as lost or 
stolen.
    In addition to ESTA screening, U.S. law requires all private and 
commercial air carriers operating routes to, from, or through the 
United States to provide Advance Passenger Information (API) and 
Passenger Name Records (PNR) data to CBP. These data, which include 
travelers' biographic and travel reservation information, are screened 
against U.S. and international law enforcement and intelligence 
databases to identify high-risk individuals before they depart for the 
United States and, if they have somehow entered, when they travel by 
air within the United States. All VWP travelers are subject to this 
screening.
    VWP travelers are also subject to additional layers of screening 
and inspection upon arrival at U.S. POEs. CBP collects biometric 
information from all VWP travelers and screens it against U.S. law 
enforcement and intelligence databases. Moreover, CBP screens the 
biographic information from VWP travelers' passports against additional 
U.S. holdings. No VWP traveler who fails to clear these checks will be 
admitted to the United States.
                     recent enhancements to the vwp
    Over the last 15 months, DHS, DOS, the administration, and Congress 
have initiated a series of changes to the VWP designed to strengthen 
its security and ensure that the Program's requirements are 
commensurate with the growing threat from foreign terrorist fighters, 
especially those who are nationals of VWP countries. These recent 
changes complement traveler vetting and the long-standing, statutory 
and policy requirements that VWP countries must meet to maintain their 
Program status.
Policy Enhancements
    In November 2014, DHS introduced additional data fields to the ESTA 
application that all VWP travelers must complete before boarding a 
plane or ship to the United States. The enhanced ESTA data fields have 
enabled CBP and the National Counterterrorism Center to identify a 
larger number of applicants with potential connections to terrorism who 
would not otherwise have been known.
    On August 6, 2015, DHS introduced a number of additional security 
enhancements to the VWP, including enhanced traveler vetting, 
information sharing, and other security requirements for VWP countries 
to further address any potential threat. Specifically, the August 2015 
VWP enhancements require Program countries to:
   Implement the Homeland Security Presidential Directive-6 
        arrangements and Preventing and Combating Serious Crime 
        Agreements by sharing terrorist and criminal information and 
        utilizing such information provided by the United States;
   Collect and analyze travel data (API/PNR), consistent with 
        United Nations Security Council Resolution 2178, in order to 
        identify high-risk travelers, especially foreign fighters, 
        before they board in-bound planes and thereby keep such 
        travelers as far as possible from U.S. shores;
   Use the INTERPOL Stolen and Lost Travel Document database to 
        screen travelers crossing the VWP country's external borders to 
        prevent the fraudulent use of passports by terrorists and 
        serious criminals;
   Report foreign fighters to multilateral security 
        organizations such as INTERPOL or EUROPOL to enhance our 
        collective efforts to identify and disrupt terrorist travel; 
        and
   Cooperate with the United States in the screening of 
        refugees and asylum seekers to ensure that terrorists and 
        criminals cannot exploit our system.
    The August 2015 enhancements also introduced a requirement for all 
VWP travelers to use electronic passports (e-passports) for travel to 
the United States.\2\
---------------------------------------------------------------------------
    \2\ Currently, citizens of the 27 countries designated into the VWP 
before 2007 may use a machine-readable non-biometric passport if that 
passport was issued before October 26, 2006 and is still valid.
---------------------------------------------------------------------------
    Finally, in November 2015, the White House announced additional 
steps it would take to further strengthen the VWP, to include, but not 
limited to: DHS introducing further improvements to the ESTA 
application that will grant the Department even greater insight into 
prospective VWP travelers who have been to Syria, Iraq, and other 
conflict zones; identifying possible pilot programs to assess the 
collection and use of biometric information to effectively improve the 
security of the VWP; and working with Congress to seek authority to 
increase the Advanced Passenger Information System fines from $5,000 to 
$50,000 for air carriers that fail to verify a traveler's passport 
data.
Legislative Enhancements
    On December 18, 2015, the President signed into law the 
Consolidated Appropriations Act of 2016, which includes the Visa Waiver 
Program Improvement and Terrorist Travel Prevention Act of 2015. The 
new law codifies some of the August 2015 enhancements noted above (such 
as the requirement for countries to fully implement agreements to share 
information concerning travelers who might pose a threat to the United 
States and for all VWP travelers to use e-passports) and puts in place 
new requirements, most notably travel restrictions.
    The law generally restricts VWP travel for nationals of Program 
countries who are dual nationals of, or who have been present at any 
time on or after March 1, 2011 in, Iraq, Syria, countries designated as 
state sponsors of terrorism (currently Iran, Sudan, and Syria), or 
other countries or areas of concern as designated by the Secretary of 
Homeland Security. The physical presence-related VWP travel restriction 
is subject to exceptions for individuals who the Secretary of Homeland 
Security determines were present in Iraq, Syria, Iran, or Sudan in 
order to: (1) Perform military service in the armed forces of a program 
country, or (2) carry out official duties as a full-time employee of 
the government of a program country. These exceptions do not apply to 
the dual nationality-related VWP travel restriction.
    Under the new law, the Secretary of Homeland Security may waive 
these restrictions if he determines that such a waiver is in the law 
enforcement or National security interests of the United States. On 
January 21, DOS and DHS announced categories of travelers that provide 
a framework to administer National security waivers on a case-by-case 
basis. DOS worked closely with DHS to propose categories for which 
individuals may be eligible. No waivers have been granted to date. As 
Secretary Johnson has emphasized, determinations of whether an 
individual ESTA applicant will receive a waiver will be based on a 
case-by-case review.
    DHS has taken several steps to implement the changes required by 
the December 2015 law. In coordination with DOS, DHS has increased 
outreach to all VWP partners to stress the importance of swiftly 
implementing the required VWP information-sharing agreements. DHS has 
also submitted to Congress two ESTA-related reports called for in the 
legislation. Additionally, on January 21, 2016, CBP began to deny new 
ESTA applications and revoke valid ESTAs for individuals who have 
previously indicated holding dual nationality with Iran, Iraq, Sudan, 
or Syria. More than 17,000 ESTAs have been denied or revoked to date. 
Beginning January 13, 2016, CBP also initiated a protocol to identify 
ESTA holders with travel to 1 of the 4 countries, to conduct secondary 
screening and revoke ESTAs for future travel if travel is confirmed and 
the Government and military exceptions do not apply. Finally, CBP began 
notifying VWP travelers of the e-passport change in November 2015 and 
will enforce the mandatory use of e-passports for all VWP travel by the 
legislative deadline of April 2016.
    An updated ESTA application with additional questions is scheduled 
to be released early this year, to address exceptions for diplomatic- 
and military-related travel provided for in the new law, and other 
issues.
    The new law does not ban travel to the United States, or admission 
into the United States, and the vast majority of VWP travelers will not 
be affected by the legislation. Any traveler who receives notification 
that they are no longer eligible to travel under the VWP may still be 
eligible to travel to the United States with a valid non-immigrant visa 
issued by a U.S. Embassy or Consulate.
                               conclusion
    The VWP is a rigorous, multi-layered risk assessment program that 
promotes secure travel to the United States. VWP countries are required 
to meet stringent security standards and to share extensive 
counterterrorism and law enforcement information with the United States 
in order to remain in the Program. VWP travelers are subject to 
rigorous screening before departure to the United States and throughout 
the travel continuum.
    DHS, in concert with DOS, the administration, and Congress, 
continues to strengthen its efforts to ensure that the VWP provides for 
the security and prosperity of the American people. Consistent with 
those efforts, DHS is taking good faith measures to implement the Visa 
Waiver Program Improvement and Terrorist Travel Prevention Act 
expeditiously and in keeping with Congressional intent.
    As terrorists change their methods and tactics and technologies 
continue to evolve, DHS and CBP will work with Federal and 
international partners--as well as commercial carriers--to adapt and 
respond swiftly and effectively to new and evolving threats. We will 
continue to collaborate to strengthen on-going efforts and facilitate 
the development of new innovative tools to secure international travel 
against terrorists and others who threaten the safety of the traveling 
public and the security of our Nation.
    Chairman McCaul, Ranking Member Thompson, and Members of the 
committee, thank you for the opportunity to testify today. I look 
forward to answering your questions.

    Chairman McCaul. Thank you, Commissioner. We appreciate 
your service.
    The Chair recognizes Ms. Johnson for her testimony.

   STATEMENT OF HILLARY BATJER JOHNSON, DEPUTY COORDINATOR, 
   HOMELAND SECURITY, SCREENING, AND DESIGNATIONS, BUREAU OF 
            COUNTERRORISM, U.S. DEPARTMENT OF STATE

    Ms. Johnson. Good morning Chairman McCaul, Ranking Member 
Thompson, and distinguished Members of the committee.
    Thank you for this opportunity to testify today on 
implementation of the Visa Waiver Program Improvement and 
Terrorist Travel Prevention Act of 2015. It is a pleasure to be 
here today with Commissioner Kerlikowske.
    My written statement, which I request be put into the 
record, describes how the Department of State has worked 
closely with the Department of Homeland Security to implement 
this new law, while ensuring our top priority remains the 
protection of the U.S. homeland.
    As deputy coordinator for homeland security and State's 
counterterrorism bureau, security of the homeland and the 
safety of our citizens is my--citizens is my constant focus. I 
welcome this legislation to strengthen the Visa Waiver Program.
    The VWP is a key counterterrorism tool that helps protect 
our homeland every single day. Our VWP partners must uphold 
strict security standards, such as sharing information on known 
and suspected terrorists and criminals, and reporting lost and 
stolen passports to INTERPOL.
    We use VWP benefits to encourage greater information 
sharing and more systemic screening by our allies. VWP 
requirements give our partners the impetus to tighten security 
in ways that can be politically challenging for them.
    The U.S. Government assesses each VWP country's compliance 
at least once every 2 years, inspecting airports, sea ports, 
land borders, and passport production and issuance facilities. 
No other program enables the U.S. Government to conduct such 
broad and consequential assessments of foreign partners' 
security operations.
    I would also like to underscore that the VWP is not a free 
pass to travel to the United States. All travelers coming to 
the United States undergo checks for ties to terrorism and are 
subject to multiple layers of security, regardless of whether 
they have a visa, or they come in under the VWP.
    As the commissioner has noted, citizens of VWP countries 
apply to enter the United States via the ESTA. CBP checks ESTA 
forms against U.S. terrorist and criminal databases before 
travelers are allowed to use the VWP.
    This information that our partners provide, under the 
information sharing, as part of the VWP, is a vital component 
of our terrorist and criminal databases. The layer of security 
continues beyond this step. All travelers are screened by CBP's 
National Targeting Center before they board an airplane and 
after they are admitted into the United States.
    ESTAs are continuously reviewed and revoked immediately if 
new intelligence comes to light. Watchlisting, screening, and 
information intelligence gathering are some of the best tools 
for countering the threat of foreign terrorist travel.
    These tools are most effective when we are working in 
collaboration with our VWP partners. That is why the VWP is 
such an important counterterrorism partnership. The 38 
countries that are part of the VWP include many of our closest 
allies, and they are proud of their status. VWP membership is 
so prized that many countries not in the VWP complete program 
requirements in the hope of joining.
    I would like to speak to the National security waivers 
authorized under the law. Under the new law, the Secretary of 
Homeland Security has the authority to waive restrictions, if 
he determines that such a waiver is in the National security or 
law enforcement interest of the United States.
    We understand that Congress did not want to create blanket 
exemptions to the law, and that is why these waivers will be 
implemented on a case-by-case basis. After consulting with the 
Secretary of State, the Secretary of Homeland Security has 
determined that is the general matter, it is in the National 
security interests of the United States to administer waivers 
on a case-by-case basis and for certain types of ESTA 
applicants.
    I want to stress that these are not blanket waivers. Again, 
the waivers would be administered on a case-by-case basis and 
are narrowly tailored to specific National security interests. 
We publicly outlined categories in which a waiver might apply 
to provide guidance to citizens of VWP countries.
    There is lot of confusion about this law among some of our 
closest allies, and we needed to let them know which of their 
citizens might receive a waiver and how the process would work. 
We noted in our guidance that each ESTA applicant would be 
considered on a case-by-case basis and reviewed carefully.
    In no incidence is travel under the VWP guaranteed for a 
person in one of the identified categories. I would like to 
share some examples of why we think these narrowly-tailored 
waivers are in our National security interest.
    For instance, we rely on employees of the International 
Atomic Energy Agency for the technical expertise to fight the 
spread of nuclear weapons around the world. Yet, without a 
waiver, IAEA employees, who went to Iran to pursue our National 
security objective of preventing Iran from obtaining a nuclear 
weapon, would be considered security risks.
    Without waivers, UNHCR and World Food Program staff, who do 
critical work helping refugees in Iraq or feeding starving 
children in Darfur, Sudan, would be unable to travel to the 
United States under the VWP.
    The European Union is an essential partner to us around the 
world. Without a waiver, representatives of E.U. institutions, 
including E.U. parliamentarians, would be ineligible to travel 
to the United States under the VWP.
    Additionally, we work closely with officials of the E.U. 
Counterterrorism Coordinator's office, who travel frequently to 
Iraq. Without waivers, they would be denied ESTAs. These 
waivers will allow us to maintain and build our relationships, 
in cooperation with these institutions, toward shared 
counterterrorism goals.
    Business representatives or NGO employees, who have 
traveled to Iraq to help with schools, roads, and hospitals, 
also would be denied travel under VWP, even though they are 
doing work we have encouraged to help stabilize and rebuild 
that country's economy.
    In Syria, the world relies on journalists facing grave 
danger to report on human rights violations, allegations of 
chemical weapon use, and the brutality of that on-going 
conflict that we might otherwise never know about. Yet, without 
waivers, they, too, could be denied VWP travel.
    I recognize that participating in the VWP is a privilege 
and not a right, but denying VWP participation to citizens of 
member countries, who are doing work we promote and support, is 
counter to our National security interests.
    I want to stress, again, that every VWP travel considered 
for a waiver will be closely examined to see if they meet the 
stringent requirements to travel under the VWP. A case-by-case 
application of waivers in these narrow instances, allows us to 
advance our National security interests and directs our 
resources to higher-risk threats.
    As I have discussed, we believe there are significant 
National security interests for the United States to utilize 
this waiver, and we do so without compromising the safety of 
our fellow citizens at home and overseas and the security of 
the traveling public.
    Mr. Chairman, Mr. Ranking Member Thompson, and 
distinguished Members of the committee, thank you so very much 
for having me here today. I look forward to your questions.
    [The prepared statement of Ms. Johnson follows:]
              Prepared Statement of Hillary Batjer Johnson
                           February 10, 2016
    Good morning Chairman McCaul, Ranking Member Thompson, and 
distinguished Members of the committee. Thank you for this opportunity 
to testify today on implementation of the Visa Waiver Program 
Improvement and Terrorist Travel Prevention Act of 2015.
    My written statement, which I request be put into the record, 
describes how the Department of State has worked closely with our 
Department of Homeland Security (DHS) colleagues to implement the new 
law while continuing to ensure that our first and utmost priority 
remains the protection of the U.S. homeland and America's citizens.
    I know Congress worked closely with the administration on this 
legislation to strengthen the Visa Waiver Program (VWP) in order to 
strike the appropriate balance between ensuring the security of the 
homeland and allowing for legitimate travel to the United States.
    Under the new law, individuals who are dual nationals of--or on or 
after March 1, 2011 have traveled to--Iraq, Syria, a country designated 
as a state sponsor of terrorism (currently, Iran, Sudan, and Syria), or 
other countries of concern, are generally prohibited from using the VWP 
for travel to the United States. The law grants the Secretary of 
Homeland Security the authority to waive the travel or dual nationality 
restrictions if he determines that such a waiver is in the law 
enforcement or National security interest of the United States. No 
waivers have been granted to date.
    The State Department has worked closely with DHS to identify 
several groups of potential VWP travelers that may be considered for 
waivers on an individual basis based on the National security interests 
of the United States.
    It is important to clearly stress that these are not blanket 
waivers. Rather, the categories of travelers that DHS and State 
announced provide a framework to administer these National security 
waivers on a case-by-case basis.
    We felt it was necessary to publicly outline categories in which a 
waiver might apply to provide guidance to citizens of Visa Waiver 
Program countries. There is a lot of confusion about this new law among 
some of our closest allies and trading partners. We need to let them 
know which of their citizens could potentially receive a waiver, and 
how the process for making those decisions would work. But it is 
important to stress that our guidance says specifically that each 
person would be considered on a case-by-case basis, and only if they 
fall under one of the identified categories. In no instance is travel 
under VWP guaranteed simply because an individual falls within one of 
the identified categories.
    Before going into more detail, I'd like to note that all travelers 
coming to the United States undergo checks for ties to terrorism and 
are subject to multiple layers of security--regardless of how they 
enter, and regardless of whether they seek travel authorization through 
the VWP or have a visa issued by the Department of State. Specifically, 
the VWP leverages multiple layers of security to detect and prevent 
terrorists, serious criminals, and other potentially dangerous 
individuals from traveling to the United States.
    Citizens of a VWP country need to apply for authorization to travel 
to the United States via the Electronic System for Travel Authorization 
(ESTA) program. CBP checks identifiers from ESTA forms against U.S. 
terrorist and criminal databases before travelers are allowed to use 
the VWP. DHS recurrently vets ESTA information on a daily basis, 
meaning that each ESTA is continuously reviewed throughout its validity 
period for new derogatory information.
    All travelers are screened by CBP's National Targeting Center 
before they board any flight bound for the United States. This vetting 
continues after they get on an airplane and after they are admitted 
into the United States. In the case of VWP travelers, they are 
inspected by CBP Officers and their biometrics are collected upon 
arrival.
    Watchlisting, screening, and intelligence gathering are some of our 
best tools for countering the threat of foreign terrorist travel. We 
require all VWP countries to share with the United States information 
about terrorists, serious criminals, and other mala fide individuals. 
These tools are most effective when we're working in collaboration with 
our VWP partners. And, that's what the VWP is, a security partnership.
    The 38 countries that are part of the VWP include many of our 
closest allies. They are proud of their status. In fact, VWP 
designation is so prized that many countries that are not in the VWP 
complete program requirements merely in the hope of one day joining. 
Therefore, we are able to use the benefits of VWP membership as a way 
to encourage greater information sharing and more systemic screening by 
our allies.
    VWP requirements provide our allies with the impetus to implement 
security measures that can sometimes be politically challenging for 
them, like amending legislation and updating their data privacy 
frameworks. DHS, in cooperation with interagency partners, assesses 
each VWP country's compliance with program requirements at least once 
every 2 years. This assessment includes rigorous and thorough 
inspection of airports, seaports, land borders, and passport 
production/issuance facilities as well as continuous monitoring. No 
other program enables the U.S. Government to conduct such broad and 
consequential assessments of foreign partners' border security 
standards and operations.
    Because effective watchlisting and screening are among our most 
effective counterterrorism tools, we continue to take advantage of the 
strong partnerships that the VWP gives us to improve terrorist 
screening by other countries and prevent threats to our country outside 
of our borders.
    Returning to the waivers, I'd like to take this opportunity to 
provide insight into the factors that led the Department of State to 
propose these specific National security waivers by outlining their 
importance:
    (1) International and Regional Organization Employees.--As a 
general matter the United States has a strong National security 
interest in supporting the work of the United Nations and other 
international organizations, like the International Atomic Energy 
Agency, as well as the work of elected officials from regional, sub-
national, or federal governments of Visa Waiver Program countries and 
officials of the E.U. institutions or members of the European 
Parliament. We would likely lose influence with these organizations 
were we to tell them and the world that we see their employees as 
security risks solely because of the official work they do in some of 
the world's toughest places.
    (2) Humanitarian Non-Governmental Organization (NGO) Workers.--As a 
general matter it is in the U.S. National security interest to support 
NGOs doing vital humanitarian work to alleviate human suffering, to 
address basic needs of civilians in those countries such as delivering 
food and medicine in conflict zones, and to identify serious human 
rights abuses. Humanitarian assistance is also critical to meeting the 
urgent needs of vulnerable civilians who are targets for extremist 
groups, and maintaining regional stability.
    (3) Journalists.--As a general matter the United States has a 
National security interest in promoting the free flow of information 
regarding events and activities in Iran, Iraq, Sudan, and Syria. For 
example, we rely on such reporting for information on serious 
violations of human rights, allegations of chemical weapons use, and 
terrorist propaganda.
    (4) VWP Country Nationals Who Traveled to Iran for Legitimate 
Business Following the Conclusion of the JCPOA (July 14, 2015).--Our 
unified diplomatic efforts with our partners were essential in setting 
back Iran's nuclear program, something we can all agree is in our 
National security interest. In some cases, treating an otherwise 
eligible businessperson from a VWP partner country in Europe or 
elsewhere as a heightened security risk because of their otherwise 
legitimate business in Iran may warrant a waiver to avoid driving an 
unnecessary wedge between the United States and our partners at a time 
when we need to maintain a united front.
    These are businesspeople from our closest European allies and other 
partners who are often trying to travel to the United States to work 
with American businesses, which will benefit our economy.
    (5) Visa Waiver Program Country National who Traveled to Iraq for 
Legitimate Business-related Purposes.--The United States has a National 
security interest in ensuring the political stability of Iraq and 
enabling the Government to effectively counter ISIL. One of the best 
ways to achieve these goals is to support the country's weak economy; 
this would include promoting commercial activities that support the 
Iraqi government's revenue generation and directly impacts its ability 
to fund its fight against ISIL. That is why since soon after the fall 
of the Saddam regime in 2003, it has been the policy of the United 
States to encourage Western companies to do business in Iraq to help 
stabilize and rebuild that country's economy. Disadvantaging people who 
traveled to Iraq expressly for that purpose would therefore be 
counterproductive to long-standing U.S. policy.
    I want to stress that none of these waivers would be administered 
in a blanket fashion. Every VWP traveler potentially eligible for one 
of these waivers would be closely and individually examined to 
determine whether they are eligible to receive a waiver. And a National 
security waiver would be carefully reviewed and only administered on a 
case-by-case basis.
    The law itself provides the Secretary of Homeland Security the 
authority to waive the travel or dual nationality restrictions if he 
determines that such a waiver is in the law enforcement or National 
security interests of the United States. As I've outlined here today, 
we believe there are significant National security interests for the 
United States to utilize this waiver authority without compromising the 
safety of our fellow citizens at home and overseas, and the security of 
the traveling public.
    Mr. Chairman, Ranking Member Thompson, and distinguished Members of 
the committee, thank you for the opportunity to testify. I look forward 
to your questions.

    Chairman McCaul. Thank you, Ms. Johnson.
    I now recognize myself for questioning. You know, after the 
Paris attacks and the tragedy, the bill that Candice Miller 
introduced that was marked up out of this committee, I met with 
our Counterterrorism Task Force at the leadership level. We 
decided that we needed to respond, in an urgent manner, to the 
attacks. We moved this bill forward to go to the floor of the 
House.
    Let me just say, Ms. Johnson, I recognize you are a career 
diplomat. We asked for somebody at the political level to 
answer the political questions that I am getting ready to ask 
you. So I just want to say that I understand the position you 
have been put in by the administration.
    But, having said that, as we were deliberating the 
introduction of the bill on the floor, that had been marked up 
by this committee, we had discussions at the leadership level, 
in both House and Senate, and also with the White House, State 
Department, and Department of Homeland Security.
    We had--there was an email exchange. I think it is very 
enlightening, in terms of looking at the express intent of this 
law. We came to, both State, Department of Homeland, and the 
White House. We got this response: Would you please consider an 
exception for humanitarian purposes, for business purposes, for 
journalistic purposes?
    I remember, I was in the meeting with the Majority leader 
of the House and the other 3 National security committee 
Chairmen. We discussed your proposal, the proposal that came 
from the Department. That proposal was rejected on all counts, 
expressly rejected by the framers and the authors of this 
legislation in the Congress.
    The response that we got, when we came back with: You know 
what? We are going to reject your business, journalistic, 
humanitarian, cultural, education exceptions. The response we 
got was actually pretty clear cut. The response was, ``The 
administration supports this legislation.'' ``Thanks to all.''
    My point is, there is no ambiguity in the intent and 
express language of the statutes. It seemed to me, at the time, 
that the administration was fully on-board with the rejection 
of these exceptions.
    Then, finally, we got an email from the White House, after, 
saying: Does State have any additional edits? The response from 
the White House was: I have spoken to State. They don't request 
any additional edits. Don't request any changes at this time. 
As I said this morning, we are good with the text as drafted. 
In fact, reopening the bill would require us to look at it 
again.
    In other words: Let's move forward with the bill. You know, 
the very day this bill was signed into law, Secretary Kerry was 
meeting with Iranian officials. Apparently, Iran didn't like 
the language that Congress had passed, that was going to the 
President's desk.
    The very next day, the very next day while the ink was 
still drying on this President's signature, the Secretary of 
State sends a letter to the Iranian Foreign Affairs Minister, 
saying thanks for the constructive meeting yesterday. I want to 
get back to you in response to your inquiry about our 
amendments to our Visa Waiver Program.
    Basically, he says in his letter, the administration has 
the authority to waive, and this will not prevent us in any way 
from meeting our commitments under the deal, the Iranian deal. 
We will implement them so as not to interfere with legitimate 
business interests of Iran.
    I guess my question to you is: Isn't it clear, given the 
exchange that we have between the administration and the 
Congress and the clear language of the law, isn't it clear that 
these exceptions that are not in the law that were expressly 
rejected by the Congress?
    Ms. Johnson. Thank you, sir. On that question, in 
particular, the text of the law is very clear. The Secretary of 
Homeland Security may waive the travel and dual national 
restrictions, if he determines that such a waiver is in the law 
enforcement and National security interests of the United 
States.
    After consulting with the Secretary of Homeland--Secretary 
of State, the Secretary of Homeland Security has determined 
that, as a general matter, it is in the National security 
interests of the United States to administer waivers for 
certain types of ESTA applicants. Whether those ESTA applicants 
will receive a waiver will be determined on a case-by-case 
basis.
    We heard your concerns about not wanting blanket exemptions 
or waivers.
    Chairman McCaul. But my--wasn't--these exceptions, the 
humanitarian, journalistic--you know, I understand the 
arguments on the merits, but we debated that in the Congress, 
and we rejected those exceptions, business, humanitarian, 
journalist, cultural. Those are not in the law, are they?
    Ms. Johnson. No. These are not blanket exceptions, and they 
are not blanket waivers.
    Chairman McCaul. It seems to me that the Secretary of State 
is creating exceptions that were not--that are not in the law 
itself. In fact, he is redefining--in fact, he is rewriting the 
law that we wrote out of this committee.
    Ms. Johnson. The text of the law says that if it is in the 
law enforcement or National security interests of the United 
States, they can be waived, the dual national and the travel 
restrictions could be waived.
    Chairman McCaul. Yes, it seems to me, though, the time to 
object is prior to signing the bill into law, not after. I 
think that, in my view, the administration didn't like the 
response they were getting from the Congress, so they just said 
go ahead and pass it. We will sign the law and then we will 
just interpret it the way we want to, defying the will and 
express intent of this Congress.
    Ms. Johnson. This is not intended to be blanket, again, 
exemptions or waivers. The intent was to look at these in a 
very narrowly-focused way, on a case-by-case basis. These 
waivers will be reviewed very closely, as we mentioned in the 
terrorist travel prevention cell at the National Targeting 
Center.
    Just because somebody might fall into one of those 
identified categories, there is no expectation that they 
automatically are receiving an ESTA.
    Chairman McCaul. Well, I appreciate your opinion, but I 
don't think you can break the law on a case-by-case basis.
    The fact is--and Mr. Commissioner, I just--were you 
consulted about this at all? Did they come to you and say, you 
know what we are going to, even though Congress explicitly 
rejected these exceptions, you know, we are going to put them--
that is going to be our interpretation. Were you consulted?
    Mr. Kerlikowske. I was not consulted concerning the letter 
that went out shortly after by the Secretary, by Secretary 
Kerry. I can tell you that there has been a huge amount of 
consultation and work, in a team effort, every moment since.
    Chairman McCaul. I mean, it seems to me that, you know, in 
our effort to put Iran first and the Iranian negotiation first 
and appease Iran, the State Department made a call overriding, 
basically, breaking the law that we passed, and then went to 
you and said, you know what? This is our interpretation. It is 
your job to implement it, and they put it on your lap. Is that 
a fair assessment?
    Mr. Kerlikowske. I would say the assessment is more of 
this, is that Secretary of Homeland Security, Secretary 
Johnson, made it explicitly clear to me 2 days ago, until there 
is a process in place in the cell, that absolutely no waiver 
would be granted.
    Further, I think that the fact that we will work together 
and even though, as Hillary mentioned, these--this framework 
provides information, it doesn't mean that someone that applies 
as a journalist, or as some type of request in that way, will 
actually even be granted that. Of course----
    Chairman McCaul. Well, this committee will be providing 
that oversight. We have requested documents from both of your 
departments, and I hope you will comply with that request. This 
committee does have subpoena power. We will be looking at the 
case-by-case analysis and make our judgment as to whether that 
is a National security issue.
    But you have been in law enforcement, sir, for many, many 
years. Do you really believe that doing business in Iran rises 
to level of a National security interest?
    Mr. Kerlikowske. I think there are two issues that are 
really important in this, and one is that many of the 
organizations, people that are from Visa Waiver partners, 
Germany, Sweden, France, et cetera, either as dual nationals, 
who, by the way, have already been cancelled, but many of those 
individuals in those countries want to do or are going to do 
work.
    We share vital security information every day with those 
Visa Waiver Program countries. Keeping good communication, good 
relationships, the ability to sign those international 
agreements with them is critical.
    So I certainly see the nexus with the National security 
interest in some parts. But, again, I would go back and say it 
doesn't mean that if an application is received in one of those 
framework areas that it would necessarily be granted. We would 
look at it very carefully, and Secretary Johnson would look at 
it very carefully.
    Chairman McCaul. The Congress will be looking at this very 
carefully, as well. I gotta tell you, I am--this really defies 
the will and express intent of the law that we passed in the 
Congress. I am very--I am deeply disturbed by this, and this 
committee will be exercising its oversight authority very 
strongly on this.
    We are not saying they can't come into the country. We are 
just saying they have to go through the extra, additional layer 
of security and apply for a visa. In my opinion, once again, 
the President has put the best interests of Iran over the 
security interests of the American People.
    With that, I recognize the Ranking Member.
    Mr. Thompson. Thank you very much, Mr. Chairman. I think it 
is clear that Congress spoke in as clear a fashion as it could 
when this language was put into the omnibus. There is concern 
that since that language has been included, there has been a 
different interpretation.
    Now, Ms. Johnson, can you tell the committee the exact date 
the State Department made the decision to offer exemptions in 
the broad category?
    Ms. Johnson. Just to be clear, these are not exemptions. 
They are waivers, again, as under the law. This--there is an 
on-going process and discussion with our counterparts at the 
Department of Homeland Security, and we announced that decision 
on January 21, with the Department of Homeland Security.
    Mr. Thompson. So you don't see a waiver and an exemption as 
the same thing?
    Ms. Johnson. No. The waivers are--again, we are not talking 
about blanket waivers. These are done on a case-by-case basis. 
Each individual is reviewed very carefully. Again, as mentioned 
here, both by the commissioner and myself, just because 
somebody might fall into one of those categories does not mean 
they would be granted a waiver.
    Mr. Thompson. Were you involved in this process to----
    Ms. Johnson. Yes, sir.
    Mr. Thompson. At what level?
    Ms. Johnson. I am a deputy coordinator. So I was working 
with my counterparts, but it has been from the working level 
all the way up through my level, and all the way up. This is a 
very important issue.
    Mr. Thompson. The decision to write the press release and 
the other things, were you involved in that?
    Ms. Johnson. Yes, sir.
    Mr. Thompson. Mr. Commissioner, your testimony is that no 
waivers have been granted at this point.
    Mr. Kerlikowske. Correct.
    Mr. Thompson. Can you tell me the financial burden to 
review these waivers on a case-by-case basis? What does that 
pose for you as an agency?
    Mr. Kerlikowske. So, I can't tell you the number of people 
or what the number of applicants would be, or what the number 
actually would be expected. I can tell you that the National 
Targeting Center, and particularly by standing up this cell 
with our partners at the Department of State is helpful, but 
that National Targeting Center is incredibly flexible and 
agile.
    If you go back to the Ebola crisis with well over 30,000 
people then with travel from one of those Ebola-affected 
countries, our Customs and Border Protection people, an 
organization of over 60,000 personnel, could move very quickly 
to address these types of things.
    Whether it was in the air cargo attempted bombing, or 
others--but I don't know the numbers.
    Mr. Thompson. So you don't know?
    Mr. Kerlikowske. I don't know what we would expect, and 
then how long it would take to carefully and thoroughly vet or 
screen anyone who made that request.
    Mr. Thompson. So you don't anticipate coming back to 
Congress asking for additional monies to support this effort?
    Mr. Kerlikowske. In the President's budget request that has 
gone up, there is a request for 40 additional personnel for the 
National Targeting Center. Now, I would tell you that that is 
not based upon, particularly, this, which came about very 
quickly.
    But the fact that that National Targeting Center has proved 
invaluable, whether it is for Ebola or whether it is screening 
foreign fighters. It is--as many Members of Congress have 
visited it, it is a very important and necessary organization 
that needs to be adequately staffed.
    Mr. Thompson. So we included a new provision in the law 
with that announcement. Ms. Johnson, what went into producing 
that press release that you participated in, and what were the 
financial implications of this new provision?
    Ms. Johnson. Do you mean financial implications to the 
State Department, or----
    Mr. Thompson. Yes.
    Ms. Johnson. That I would have to take back. I don't know 
the answer to that question. The working level, the mid-level 
and higher levels, all of us, as we normally do with press 
releases, worked very closely together with our Department of 
Homeland Security colleagues.
    Mr. Thompson. So at the--you are a witness before us today, 
indicating that you participated in the drafting of a document, 
but nowhere in the drafting did anybody talk about what this 
new effort would cost?
    Ms. Johnson. No on cost, at least in any discussions I was 
involved in. The threat cell of the State Department already 
participates in the National Targeting Center over at CBP, and 
we also work very closely with DHS on a regular basis with the 
screening capabilities.
    Mr. Thompson. Well, Mr. Commissioner, did you participate 
in the drafting of the press release?
    Mr. Kerlikowske. I did not.
    Mr. Thompson. So one agency drafted the release, and the 
responsibility was put on you?
    Mr. Kerlikowske. Well, I think there is a very--I would 
tell you that many people within Customs and Border 
Protection--I have broad authority over a very large number of 
issues. Our people, as she stated, our people participated very 
closely and worked on all of the aspects that have been 
mentioned. I did not, myself.
    Mr. Thompson. You were aware of it?
    Mr. Kerlikowske. I have been aware of the--certainly, of 
the law as it was being debated, yes.
    Mr. Thompson. Mr. Commissioner, I know you were aware of 
the law. But you understand where I am getting at. In terms of 
the drafting of the release and the cost associated with this 
new process, Ms. Johnson just said she wasn't involved at that 
level.
    So, obviously, you are the only other witness we have. Is 
your testimony, you were not involved in that either?
    Mr. Kerlikowske. I was not involved in the drafting of the 
press release, but I certainly have been involved in how CBP 
would work to enforce the new law passed by Congress and signed 
by the President.
    Mr. Thompson. After the fact.
    Mr. Kerlikowske. After the fact.
    Mr. Thompson. Not the law, now, but the drafting of this 
new waiver or exemption provision.
    Mr. Kerlikowske. I was not involved in the drafting of the 
categories or the framework.
    Mr. Thompson. Thank you.
    I yield back.
    Chairman McCaul. Chair now recognizes the author of the 
Visa Waiver Program bill, Mrs. Miller.
    Mrs. Miller. Thank you, Mr. Chairman. I certainly 
appreciate you holding this hearing today. This is an important 
issue, and I appreciate the witnesses being here.
    Ms. Johnson, as the Chairman mentioned, you are a career 
diplomat, not really a political type. I think we would have 
preferred someone--because it seems to me to be a political 
determination made by this administration.
    You mentioned, in your testimony, there, you were 
mentioning various people, people or groups, that would be 
inconvenienced by this bill. But, again, as the Chairman 
mentioned, these issues were not either raised, or they were 
negotiated away during the negotiations. He did put up some of 
these slides. I won't ask the staff to do that again.
    But I will just mention these, because I think it does bear 
note, here, because we were negotiating, we, being the 
Congress, were negotiating in very good faith with the White 
House and the various agencies included.
    Here is a--and this particular issue, by the way, somebody 
mentioned and it sort of went quickly because it went in the 
omni, but the reality is, really, we had introduced this 
legislation a couple of years ago and then, again, reintroduced 
it during this Congress.
    It went through--we had a number of hearings. Mr. 
Commissioner, you have been--you had the opportunity to testify 
before our subcommittee, as well as the full committee, as 
well, on numerous occasions.
    So this is an issue that went through regular order, 
through our subcommittee, through our full committee. We were--
there were many, on both sides of the aisle, who were very 
desirous of having floor action on this. We were, you know, 
really--then came Paris. So, we had this bill ready to go, and 
that is really how it ended up in the omni, there, at the end.
    But at one time we were--these emails showing--I was just 
going to briefly say, proposed exemptions for journalists, 
relief workers, business and humanitarian travel, they accept 
only exemptions for government officials and military personal. 
Okay. Everybody agreed to that, when we were negotiating this 
just 3 months ago.
    Here is another email. Negotiations continue, bipartisan 
House committee leadership staff--bipartisan. The White House, 
the Department of Homeland Security, State Department, the 
exemption for humanitarian travel are, once again, rejected by 
everybody. Rejected. Here is the email that was up on the 
screen. The administration supports this legislation, thanks to 
all.
    Then here is another one. I am not going to say who sent 
all these, but here, ``I have spoken to State. They do not 
request any additional edits. The administration does not 
request any changes at this time.''
    So I just point those out, because it is certainly clear, I 
believe, abundantly clear, that the White House negotiated in 
very bad faith. Again, it is not a partisan issue. It is a very 
bipartisan issue, and I don't know how Congress can come to an 
agreement with the White House, with an administration that 
simply turns around and then breaks the agreement, certainly 
violates the law, in my estimation, as well.
    So, I guess, my question, Ms. Johnson, you know, to be very 
clear of the changes of the law, they don't bar people who have 
traveled to either Iran, Iraq, Syria, or Sudan from entering 
the country. They just simply have to go through the same 
processes that countries in 100--people from 150 other 
countries have to use, when they come into the country.
    I would say, Ms. Johnson, do you think, from the Department 
of State, do you think that the visa interview is an 
unreasonable bar for an individual who actually has visited a 
country that is a state sponsor of terrorism?
    Ms. Johnson. Thank you for the question. I mean, the visa--
sorry, again, under the Visa Waiver Program, it is important to 
note that all of those travelers go through the same rigorous 
screening as visa applicants do.
    So, I think if visa applicants, obviously, have an 
interview and biometrics are collected--that is really only the 
difference that takes place between the Visa Waiver Program and 
a visa interview.
    I think the important question is, I know for some people, 
for particularly our Visa Waiver Program partners, a visa 
interview and a visa process, the whole point of the Visa 
Waiver Program for them is, they are going through and meeting 
these stringent security standards.
    They are participating in this counterterrorism partnership 
with us that actually enhances our National security quite 
beneficially, because, again, the information that we receive 
from them on known and suspected terrorists and criminals goes 
into our databases, and we screen against that.
    So having a number of individuals, affected individuals, 
who have traveled to these countries under these--traveled to 
these countries, be treated as a heightened security risk, 
because we may have been doing legitimate business in Iran or 
might be a humanitarian worker in Darfur, I think it is been a 
real big effect for our foreign partners under the VWP.
    In fact, I met yesterday with one country who was very 
concerned about this. They fully respected the VWP's stringent 
security requirements, and they certainly want to respect and 
focus on the security of the U.S. homeland. But they were very 
concerned about the fact that their citizens are treated as 
heightened security risks, when they are conducting National 
security-related activities.
    Mrs. Miller. Thank you.
    Mr. Chairman, I know my time is out. If I had more time, I 
would ask a question about are there any limits to their 
interpretation to these individuals, and maybe someone could 
ask--could we have an example of what is the limit of their 
interpretation of who could have a waiver?
    Chairman McCaul. I would just add, if the ESTA program is 
better than the VISA process, why did we even pass the bill in 
the first place? The Chair recognizes Mr. Payne.
    Mr. Payne. Thank you, Mr. Chairman and Ranking Member.
    Commissioner, while the recent VWP legislation prohibits 
individuals with recent travel to citizenship in Iraq, Iran, 
Sudan, or Syria from traveling to the United States under the 
program, it authorizes the Secretary of Homeland Security to 
issue the waiver, if in doing so in the law enforcement or 
National security interests of the United States.
    What circumstances would warrant a waiver? What process 
will be used to determine whether a traveler would be issued a 
waiver? What role will CBP play in that process?
    Mr. Kerlikowske. So the process that would be outlined for 
us, standing up this cell at our National Targeting Center, 
would be this. The request would come in. For example, if it is 
a non-governmental organization doing humanitarian work, that 
Electronic System for Travel Authorization, ESTA, has a new 
series of questions.
    Those questions will be ready and be on-line by February 
23. The questions involve not only, of course, have we 
identified that person, but what organization do you work for. 
Is the organization noticed by the United Nations for 
humanitarian work?
    Who would be the person that would say that you are an 
employee and that the work that you were doing in that country 
is part of that nongovernmental or humanitarian organization? 
What--you were there, in fact, on their behalf and doing their 
work.
    Any derogatory information would result in a default 
position, where they would be denied travel and then told to go 
to a United States embassy or a consulate. So that is an 
example of the kinds of questions we would ask.
    Mr. Payne. To the both of you, if Congress were to 
temporarily suspend the VWP, what would be the ramifications 
for State and DHS? What impact would there be on embassies and 
consulates in VWP countries? What impact would there be on CBP 
operations? Also, what impact would there be on U.S. business 
interests and U.S. travelers to VWP countries?
    Mr. Kerlikowske. From the Customs and Border Protection 
standpoint, the information that we get from ESTA, which has 
been around many decades and 90 million people have traveled, 
many more people--many people, of course have been denied 
entry, as a result of that information.
    All of that combines together. These countries that have 
been talked about that are members of VWP are great partners. 
We secure information and share information with them. We 
depend on them. We are only going to be a safer country when, 
in fact, we engage in those kinds of things.
    I would think the suspension of ESTA, the suspension of 
VWP, would have some significant effects on those relationships 
and that ability that we have now to share information. At our 
National Targeting Center, we have members from--who have been 
fully vetted from other organizations in other countries.
    So working together is critical, and I think the VWP 
program is a security and safety program, as much as in the 
past, when it was designed to facilitate tourism and the ease 
of travel. It is a security program now.
    Mr. Payne. Ms. Johnson.
    Ms. Johnson. I would absolutely echo everything the 
Commissioner just said. I mean, again, and as I mentioned in my 
opening remarks, this is a--a hugely beneficial 
counterterrorism tool, particularly for the United States, 
because of the information we receive from these foreign 
partners, but, also, for those foreign partners, again, which 
are key allies and trading partners, for their security.
    They take our information and they screen against it. So it 
is a hugely collaborative counterterrorism partnership. I know 
that it would be a very big impact against--on that 
relationships that we have with those countries, both on the 
counterterrorism side, but for foreign policy reasons, as well, 
certainly, from sitting at the State Department.
    I sit in the counterterrorism bureau. I see how that 
partnership is extremely important, and I think we can leverage 
that partnership to a variety of degrees. The VWP security 
requirements, I just want to note, have become kind of 
universal standards, as well, for importance for 
counterterrorism tools, broadly.
    A number of these security requirements are now, again, 
best practices that we have highlighted in U.N. Security 
Council resolutions, particularly, UNCSCR 2178, to combat 
terrorist fighters. So other countries, beyond the VWP, are 
benefitting from those kind of lessons learned.
    So, I think, we would have a huge--a huge negative impact. 
I can't answer on the economic side, but I know it is a very 
large contribution to our economy, because it is a reciprocal 
program, and, certainly, for our foreign partners, as well.
    Mr. Payne. My time is up. I just think, Mr. Chairman, those 
are some things that we should keep in the back of our minds, 
as we move forward on this discussion.
    I yield back. Thank you, sir.
    Chairman McCaul. The Chair recognizes Mr. Duncan.
    Mr. Duncan. Thank you, Mr. Chairman.
    Mr. Commissioner, could you define, as in the law, what law 
enforcement and National security interests of the United 
States are?
    Mr. Kerlikowske. I think the law enforcement interest is a 
narrower interest and would be involving where someone is 
coming back into the United States, and, as the Chair 
mentioned, would be under surveillance, or we would want to 
have, because that person is being targeted. Perhaps, that 
person is also being part of extradition.
    The National security interest, as has been explained, in 
keeping Visa Waiver Program countries in partnership, in 
collaboration with us on information sharing, on using these 
finite resources to take a look at that.
    Mr. Duncan. Thank you.
    Mr. Kerlikowske. Remember, these are just frameworks.
    Mr. Duncan. Thank you. I appreciate that.
    Mr. Kerlikowske. Sure. Okay.
    Mr. Duncan. I want to go back to what Mrs. Miller was 
talking about. During the negotiations, there were proposed 
exemptions for journalists, relief workers, business and 
humanitarian travel, and they were rejected. It goes on to say, 
later, that the DHS, State Department, leadership staff, the 
White House, the exemptions for humanitarian travel were, once 
again, rejected, due to Members' concerns.
    Ms. Johnson, are you aware of a State Department memo, 
``VWP Waiver Recommendation Paper''?
    Ms. Johnson. I believe so, yes.
    Mr. Duncan. Internal memo?
    Ms. Johnson. Yes.
    Mr. Duncan. Okay.
    Mr. Chairman, I would like to, without objection, I would 
like to submit this for the record and ask all the committee 
Members to actually read this at some point.
    Chairman McCaul. Without objection, so ordered.
    [The information follows:]
              Submitted For the Record by Hon. Jeff Duncan
                    VWP Waiver Recommendation Paper
    The Visa Waiver Program Improvement and Terrorist Travel Prevention 
Act of 2015, enacted as part of the Consolidated Appropriations Act, 
2016, amended the Immigration and Nationality Act to make ineligible 
for participation in the Visa Waiver Program (VWP) any person who has 
been present in Iran, Iraq, Sudan, or Syria since March 1, 2011, with 2 
very limited exceptions (travel to perform military services in a VWP 
country's armed forces and travel to carry out official duties as an 
employee of a VWP government).
    The law gives the Secretary of Homeland Security authority to waive 
this ineligibility if the Secretary determines that such a waiver is in 
the law enforcement or National security interests of the United 
States. As discussed in the legal paper, this is a lesser standard than 
that imposed by other statutes that require a finding that a waiver is 
``vital to'' or ``essential to'' the National security interests of the 
United States. Furthermore, there are no findings of fact or other 
determiniations required to be made before exercise of the waiver 
authority. Additionally, as discussed in the legal paper, the National 
security waiver can be exercised by category, not just individuals.
    State recommends waivers for the following classes of persons:
1. Business-related travel to Iran following the conclusion of the 
        JCPOA (July 14, 2015).
    Rationale.--The VWP legislation and its implementation do not 
violate U.S. commitments under the JCPOA. Nevertheless, these 
provisions do have the potential to cause citizens of VWP countries to 
hesitate to travel to Iran for business, which could adversely affect 
normalization of trade with Iran and, in turn, Iran's commitment to 
implementing the JCPOA. Moreover, these provisions could adversely 
affect the strength of our partnership with the E.U. and with non-E.U. 
states in addressing Iranian (and other) issues. Thus, it is in the 
National security interest of the United States to waive the VWP 
ineligibility for individuals who have traveled to Iran for legitimate 
business purposes after July 14, 2015, or will travel to Iran for 
legitimate business purposes in the future.
    Iranian Dual nationals.--This category should also include dual 
nationals of Iran who have traveled to Iran for legitimate business 
purposes since that date. Including dual nationals is appropriate for 
both of the National security reasons listed above, since these 
individuals will be important facilitators for companies that want to 
trade with Iran.
    Legal argument.--This limited approach is directly tied to JCPOA 
implementation and avoids burdening close allies whose nationals 
traveled to Iran for legitimate business purposes after the deal was 
concluded. As discussed in the legal paper, this approach is defensible 
based on the specific National security interests associated with 
maintaining the strength of international partnerships, as well as 
JCPOA implementation. DHS, in consultation with State, would have to 
determine what business travel would be viewed as ``legitimate'' and 
hence covered by the waiver. A baseline would be travel to Iran for 
business-related activities that were not prohibited or sanctionable 
under U.S. law and regulations or pursuant to UNSC resolutions at the 
time when the travel occurred.
    Specific ESTA language.--Questions should be added to elicit 
whether individuals traveled to Iran for legitimate business purposes. 
Possible questions include: ``Was your travel to Iran after July 14, 
2015? If yes, was the travel for business purposes? If yes, please 
describe the travel, including the company or other entity for which 
you were traveling and all entities in Iran with which you had 
dealings.'' This last question would require some manual intervention 
by DHS to ensure the travel was for ``legitimate business purposes,'' 
so State and DHS need to collaborate on the mechanics of such an 
approach. If it was considered important to elicit further information 
to validate the applicant's answers to these basic questions, 
additional questions that could be considered might include: For a dual 
national, whether the individual traveled with family members to Iran, 
as this could be an indicator that the purpose of travel was not solely 
business. Additionally, the travel question could ask, was the travel 
exclusively/solely for business purposes?
2. Employees of International and Regional Organizations and Sub-
        National Governments who traveled on official duty.
    Rationale.--The current law does not include an exemption from 
ineligibility for: Employees of international organizations such as 
U.N. officials, IAEA inspectors, and employees of international 
humanitarian organizations; officials of the E.U. institutions or 
members of the European Parliament; sub-national parliaments of VWP 
countries; or similar bodies. It is in the National security interest 
of the United States to waive the VWP ineligibility for individuals who 
traveled to Iran, Iraq, Sudan, or Syria on or after March 1, 2011, on 
official duties on behalf of one of these institutions.
    Dual nationals.--This category should also include dual nationals 
who are employees of one of these institutions, regardless of whether 
the individual has traveled to 1 of the 4 countries. Otherwise, we 
would undermine our National security interest in maintaining 
relationships with these institutions by placing restrictions on 
certain employees of these institutions.
    Legal argument.--As discussed in the legal paper, the United States 
has a National security interest in: (1) Supporting engagement and 
other activities conducted by such institutions in each of these 
countries; and (2) maintaining strong relations and enhancing 
cooperation with those entities on a variety of objectives, including, 
among other things, counterterrorism, nonproliferation, and 
humanitarian assistance in conflict zones.
    Specific ESTA language.--The ESTA form could include a drop-down 
question asking whether the individual traveled to 1 of the 4 countries 
for official duties as an employee of 1 of the following entities, with 
a list of specific institutions or categories of institutions to choose 
from.
3. Employees of Humanitarian Non-Governmental Organizations (NGO) who 
        traveled on official duty.
    Rationale.--VWP country citizens who have worked for humanitarian 
NGOs in any of the 4 countries since March 2011 would be ineligible for 
the VWP.
    Legal argument.--It is in the National security interest of the 
United States to waive the VWP ineligibility for individuals who 
traveled to Iran, Iraq, Sudan, or Syria on or after March 1, 2011 on 
official duties on behalf of non-governmental humanitarian 
organizations who, for example, provide humanitarian assistance in 
those countries. We could consider including employees of other NGOs 
that promote other specific objectives that are in the U.S. National 
security interest, such as NGOs from VWP countries doing work in Iran, 
Iraq, Sudan, and Syria that supports the U.S. National security 
interest in the advancement of civil society in repressive 
environments. Further, this restriction may have the consequence of 
making it more difficult for these organizations to recruit personnel 
from VWP countries, which would impact programs aimed at helping 
civilians in those countries.
    Dual nationals.--Since the National security interest is in the 
promotion of the work of these NGOs, this category should also include 
dual nationals who are employees of one of these NGOs, regardless of 
whether the individual has traveled to 1 of the 4 countries. Otherwise, 
we would undermine our National security interest by placing 
restrictions on certain employees in these organizations.
    Specific ESTA language.--The ESTA questions could include a drop-
down question asking whether the individual traveled to 1 of the 4 
countries as an employee of such an NGO. A possible follow-up question 
would ask on behalf of which organization did the individual travel. 
Again, this may require some manual intervention by DHS regarding the 
legitimacy of the named NGOs.
4. Accredited Journalists who traveled for reporting purposes.
    Rationale.--The current law does not include an exemption from 
ineligibility for journalists, who are essential for understanding the 
situation in Iran, Iraq, Syria, and Sudan.
    Legal argument.--The United States has a National security interest 
in promoting the free flow of information regarding events and 
activities in Iran, Iraq, Sudan, and Syria. A waiver of the VWP 
ineligibility for accredited journalists who traveled to Iran, Iraq, 
Sudan, or Syria on or after March 1, 2011, would help facilitate this 
National security interest of the United States.
    Dual nationals.--This category should include dual nationals who 
are accredited journalists and traveled to 1 of the 4 countries, 
especially in Iran. As a result, excluding this group could have a 
significant impact on the promotion of the free flow of information.
    Specific ESTA language.--The ESTA could include a drop-down 
question asking whether the individual traveled to 1 of the 4 countries 
as an accredited journalist. A possible follow-up question would ask on 
behalf of which organization did the individual travel.
5. Dual-Nationals who emigrated from Iran in the aftermath of the 
        Revolution.
    Rationale.--The current law excludes individuals who emigrated from 
Iran in the wake of the Revolution. This is a distinct group who merit 
special treatment.
    Legal argument.--The United States has a National security interest 
in Iran moderating politically over time. Penalizing those who 
emigrated from Iran in the aftermath of the Revolution runs counter to 
this objective because it alienates a group that largely support the 
United States' goal of encouraging Iran to moderate politically.
    Specific ESTA language.--The ESTA could include a drop-down 
question asking a dual national from Iran, when he/she emigrated out of 
Iran. Further discussions are needed to assess the appropriate year for 
categorizing those who emigrated in the aftermath of Revolution.
6. Dual-Iranian nationals who were born outside of Iran.
    Rationale.--The current law excludes nationals of a VWP country who 
are also nationals of Iran, even if the Iranian nationality was 
acquired by operation of law, rather than an affirmative act by the 
individual.
    Legal argument.--The United States has a National security interest 
in Iran moderating politically over time. Penalizing those who were 
born outside of Iran runs counter to this objective because it 
alienates a group that largely support the U.S. goal of encouraging 
Iran to moderate politically.
    Specific ESTA language.--No additional language is needed.
7. Dual-Iranian nationals traveling to the United States for business 
        purposes or as part of official duties as an employee of a 
        Humanitarian Non-Governmental Organizations (NGO).
    Rationale.--The current law excludes nationals of a VWP country who 
are also nationals of Iran from traveling to the United States under 
the VWP. While this would be a broad category to include in a waiver, 
this group is engaged in activity that is important for the U.S. 
National security interest. Placing restrictions on humanitarian 
employees will make it harder for those organizations to recruit 
personnel from VWP countries, which would impact programs aimed at 
helping civilians in those countries.
    Legal Argument.--The United States has a National security interest 
in promoting business and humanitarian ties with our closest allies in 
VWP countries. The United States also has a National security interest 
in Iran moderating over time, and thus in not alienating those who 
largely support that U.S. goal. Placing restrictions on dual nationals 
from Iran engaging in these activities will undermine that interest.
    Specific ESTA language.--ESTA questions would need to be updated to 
seek the purpose of the travel to understand whether it was solely for 
business purposes or as an employee of a humanitarian NGO on official 
duties.
8. Business-related travel to Iraq
    Rationale.--We have a National security interest in ensuring the 
political stability of Iraq and enabling the government to effectively 
counter ISIL. One of the best ways to achieve these goals is to support 
the country's weak economy, which is overly dependent on declining oil 
revenue and is a threat to Prime Minister Abadi's ability to govern. 
That is why the United States has spent years trying to encourage 
international investment in Iraq, not only in oil infrastructure, but 
also in diversifying the economy to increase its resilience. The 
current law would undermine these efforts and our National security 
interests by placing restrictions on citizens of VWP countries who 
traveled to Iraq for business and engaged in key commercial activities 
that support the Iraqi government's revenue generation and directly 
affect Baghdad's ability to fund its fight against ISIL.
    Legal argument.--This approach is defensible based on the specific 
National security interests associated with maintaining the stability 
of Iraq and enabling the government to focus on countering ISIL.
    Specific ESTA language--Questions should be added to elicit whether 
individuals traveled to Iraq for business purposes. Possible questions 
include: ``Was your travel to Iraq after March 1, 2011? If yes, was the 
travel exclusively for business purposes?

    Mr. Duncan. Thank you.
    Within that paper, it talks about law enforcement and 
National security interests. It also references a legal paper. 
So I am assuming that is a white paper within this white paper. 
Are you familiar with that legal paper?
    Ms. Johnson. Yes, sir. I am.
    Mr. Duncan. Has that been provided to this committee?
    Ms. Johnson. I would have to go back and check. I don't 
know.
    Mr. Duncan. Has any--Mr. Chairman, do you know if that----
    Chairman McCaul. Thus far, we have had no document 
production. I believe the deadline is this Friday.
    Mr. Duncan. Okay. I would request that that legal paper be 
provided, because I think it is important.
    This white paper, Visa VWP Waiver Recommendation Paper, 
says that there are no findings of fact or other determinations 
required to be made before exercise of the waiver authority.
    Let's talk about this. Why does it state that? Why does it 
state that there are no findings of fact or other determining--
determinations required to be made before the exercise of waive 
authority? Why does it say that in the State Department's white 
paper?
    Ms. Johnson. I am not a lawyer, but I know that the text of 
the law is clear that the Secretary of Homeland Security can 
utilize the waiver to waive the dual national and travel 
restrictions, if it is in the law enforcement and National 
security interest of the United States.
    Mr. Duncan. It was shown very clearly by Mrs. Miller, and 
during the negotiations, that the intent of Congress, as the 
Chairman pointed out, was to not offer visa waivers to these 
classifications of people.
    But, yet, the State Department will come out, after the law 
was signed, with an internal document that references another 
legal paper to say we are gonna allow business-related travel. 
We are gonna allow people from international and regional 
organizations, some national governments. We are gonna allow 
humanitarian, nongovernmental organizations.
    We are gonna allow accredited journalists. We are gonna 
allow dual nationals who immigrated to--from Iran, after the 
revolution. We are gonna allow dual Iranian nationals who were 
born outside of Iran. We are gonna allow dual Iranian nationals 
traveling to the United States for business purposes.
    We are gonna allow business-related travel to Iraq from 
these waiver countries. Congress, in the negotiations, said no, 
we are not going to give those exemptions. But the State 
Department now is saying, here is justification. Here is our 
rationale that we are gonna allow that to happen.
    How does this kind of lawlessness happen in defiance of 
Congress? Explain that to me.
    Ms. Johnson. So those are internal deliberations. That 
document is a series of discussions on how we can utilize the 
waiver that is allowed for, under the law. Again, working 
internally within the Department, we broadly discussed the 
options, the potential of utilizing this waiver, all throughout 
the Department, both with the legal advisors' office and the 
regional bureaus, which we do on a policy basis for any other 
topic.
    Those are internal deliberations. They were looking at what 
kind of potential, you know, categories we might look at, under 
the National security waiver, as, again, called for under the 
law.
    But that is, in no way, shape, or form, the final position. 
Again, we consulted with Congress. We understood you did not 
want blanket waivers or blanket exemptions. That was not the 
intent, to have any, as we have mentioned here clearly today, 
to do a blanket waiver or blanket exemptions. We were looking 
at narrow----
    Mr. Duncan. If you read this, it, absolutely, looks like 
that is the intent of the State Department.
    Ms. Johnson. So, again, it is a deliberative document. But 
then we----
    Mr. Duncan. I think it looks like a way to rationalize 
getting around the intent of Congress. That is what it looks to 
me. I believe if I share that with the American people, and it 
is on the record now, and ask the American people to look at 
it, they would come to the same conclusion. They would come to 
the same conclusion.
    I mean, one of the questions that you are asking a business 
traveler from--that had gone to Iraq, after March 20--March 1, 
2011, is this. Was your travel to Iraq after March 1, 2011? If 
the answer is yes, was the travel exclusively for business 
purposes? That is a pretty benign and open-ended question. If 
they answer, yes, it was exclusively for business, we are gonna 
probably grant you a visa waiver. Really?
    I think the American people expect us to do a better job, 
before we allow folks, based on the intent of the law passed by 
Congress, before we allow folks to get a visa, to not have to 
get a visa and be waived from that to travel this country.
    I think you are using this white paper to rationale that. I 
disagree with that.
    Mr. Chairman, I would encourage everyone to really delve 
into this a little further, because I believe the 
administration is acting lawlessly, in this regard, because 
Congress said a certain thing. We negotiated with the White 
House along certain lines, and this seems to be violating that 
intent. With that, I yield back.
    Chairman McCaul. I was in those negotiations. It was pretty 
clear, the understanding between all the parties to the--in the 
negotiation.
    With that, the Chair recognizes Ms. Jackson Lee.
    Ms. Jackson Lee. Let me thank the Chairman and the Ranking 
Member. This is an important hearing. But let me also thank the 
witnesses. I come with a, sort-of, a dual approach in my 
questions, respecting both of you.
    Commissioner, thank you for your service.
    Thank you, Ms. Johnson.
    I am going to join the Chairman and wish that we had a 
person in the level of Secretary, assistant secretary. When I 
say that, no disregard to your expertise, and to thank you for 
your presence here today.
    As I said, when I say dual purpose, I am going to be a 
little bit askance. Let me ask the commissioner, Mr. 
Commissioner, are you--do you have an intent to break the law?
    Mr. Kerlikowske. No, ma'am.
    Ms. Jackson Lee. Ms. Johnson, do you have an intent to 
break the law?
    Ms. Johnson. No, ma'am.
    Ms. Jackson Lee. So I would just take issue with our 
hearing topic. I think we have public servants who are here who 
have no intent on breaking the law. I feel a little bit 
uncomfortable to suggest that they are here in the context of 
breaking the law.
    But I do believe that we want to give you counsel, and I 
hope both of you will take back the definitive concern of this 
committee. Our name came about after 9/11. If the American 
people know anything, they understand homeland security.
    It would fall at the feet of the Department, less so State, 
who collaborates on these Visa Waiver Programs, when the 
American people think, ``Why have I not been protected?'' They 
will look to the Homeland Security Department, Commissioner. 
They will look to this committee, just by the very name.
    So, I can appreciate my colleagues, who were in 
negotiations and made the very best effort. I hope you can 
appreciate them as Members of Congress, trying to do their job. 
But I want to say that I don't think any of you are attempting, 
or have, broken the law.
    But let me raise this and try to probe from you. Section 
203 of the negotiations of H.R. 158, which never passed the 
House or Senate, it passed its committee, did, however, get 
into the Consolidated Appropriations Act.
    The exact language is, as you have noted, is that the 
Secretary of Homeland Security can waive the prohibition 
against travel under the VWP waiver--the Visa Waiver Program, 
due to recent travel to a specified country or because of 
citizenship in a specific country, if the Secretary determines 
that such a waiver is in the law enforcement or National 
security interests of the United States.
    Commissioner, have you heard that language? Has that 
language been brought to your attention?
    Mr. Kerlikowske. I have heard it, yes.
    Ms. Jackson Lee. Ms. Johnson, has that language been 
brought to your attention?
    Ms. Johnson. Yes, ma'am.
    Ms. Jackson Lee. So can I assume that the Secretary of 
Homeland Security and the Secretary of State thought, in their 
responsibilities of National security and law enforcement--am I 
to assume that they felt compelled to answer the many inquiries 
that they were getting, panic inquiries, outrage on the 
diplomatic level, to come up with a resolution?
    Ms. Johnson, do you think that is where we are today?
    Ms. Johnson. I think there is a lot of confusion with the 
law from our foreign partners, who have repeatedly asked how 
this law will be administered. I think they are very concerned 
about dual nationals, in particular, and that it felt very 
discriminatory. So I think there were a lot of concerns raised.
    Ms. Jackson Lee. Mr. Commissioner, is it that you needed to 
inform your personnel and the Secretary of Homeland Security 
felt compelled, either by his dialogue with the Secretary--
where do you think this, sort-of, machinations and changes, of 
sorts, came about?
    Mr. Kerlikowske. So the agreement and the understanding 
that I have had from Secretary Johnson is, certainly, and, 
certainly, not one to be pushed or pulled into any one 
direction, since the day we met when we were both awaiting 
confirmation, the protection of the American public is first 
and foremost with him.
    So putting these--this framework to be helpful, even though 
no waiver has been granted and no request has been made, 
putting this framework together with his partner at the 
Department of State, is one that, I understand, we will 
continue to push forward and develop processes to make sure 
that someone is thoroughly, completely, and absolutely vetted 
before any waiver would ever be granted.
    Ms. Jackson Lee. So with no intent to undermine the 
protection of the American people?
    Mr. Kerlikowske. No, ma'am.
    Ms. Jackson Lee. But complying with Section 3 that, if a 
case comes up, under National security and--or law enforcement 
necessity, that that case could be considered. So let me ask 
you this. In the broad base of business purpose, could you 
have, in your framework, what would define as a legitimate 
business person?
    Let's start with Ms. Johnson. What would we define as a 
legitimate business person--purpose? Excuse me.
    Ms. Johnson. Well, I think, we are still in deliberations 
on, again, how to administer these waivers. Certainly, in the 
case of Iran or Iraq, it would be making sure that they are not 
sanctionable activities and, certainly, in an Iran case, or 
illegal against U.S. laws.
    But I think, you know, our first and foremost--and, again, 
I will--straight from the Department of State, as well, is the 
security of the U.S. homeland and the American public. I work 
in the counterterrorism bureau. It is, again, what we do all 
the time.
    So that is where we would be starting with. I think what we 
would be discussing is how we would go about reviewing those 
waivers and, certainly, could talk about it at a future date in 
a closed session. I think what we don't want to do is advertise 
how to work around those, publicly.
    Ms. Jackson Lee. Let me close by saying, first of all, I 
want it to be very clear that I asked the witnesses, on the 
record, did they have the intent or have they broken the law? 
Let me add that point.
    Have you broken the law? Commissioner.
    Mr. Kerlikowske. No.
    Ms. Jackson Lee. Ms. Johnson.
    Ms. Johnson. No, ma'am.
    Ms. Jackson Lee. I think that you have not done so. But I 
think it is important that you hear the concern of this 
committee, that what was represented in negotiations seems to 
be, if you will, has turned into an amoeba and has begin to 
crawl in different directions.
    For the security of the American people, I think we need 
negotiations, discussions, again. I think it should be restated 
that the Commissioner said no waiver has been asked for or 
granted, at this point in time, on February 10, 2016. That is 
somewhat of a good thing.
    But when you think of countries like Iran and Syria, you 
raise concern in others. But I will close my comments by saying 
I have empathy for humanitarian purposes. Certainly, military 
and diplomatic have their own waiver.
    I would, probably, look to narrowing that to those dealing 
with humanitarian issues, those dealing with legitimate 
business versus dealing with the Joint Comprehensive Plan of 
Action, but raise questions about others who would need this 
waiver, except for the fact that you come back and show us a 
strict, restricted, point-by-point, in a briefing that is not 
public, of how you would assess journalists and others, because 
I am not here to deny the legitimacy of individuals like that 
who would have been engaged in travel.
    But, Mr. Chairman, I just want to be on record to say that 
I do not believe this administration is in the business of 
breaking the law. I yield back.
    Chairman McCaul. The Chair recognizes Mr. Loudermilk.
    Mr. Loudermilk. Thank you, Mr. Chairman.
    Ms. Johnson, maybe you can help me clarify something. You 
said you are not a lawyer. I am not a lawyer. But something you 
had said earlier, maybe you can help me clarify. There appears 
to be two exceptions that we are talking about to this law.
    One was in response to Mr. Thompson in his questioning. He 
brought up waivers, and you said that these are not waivers, 
they are exceptions--or exemptions. Is that correct?
    Ms. Johnson. No. I know that, under the law, there are 
exemptions for categories for Government, official Government 
business, as well as military. In this case, in the waivers, we 
would be looking at this as an individual basis, so, again, 
case-by-case, whereas exemptions, I think, are broad categories 
of people.
    So if--and I don't know, in the sense of how CBP would look 
at those. But if someone presented military documentation of 
official Government business, that is my understanding for----
    Mr. Loudermilk. Okay. So waiver and exemption----
    Ms. Johnson. None of them--it is not a blanket waiver, I 
think, is the main thing to----
    Mr. Loudermilk. Okay. But they are both exceptions, 
categorically, I guess? Different--to different degrees. I 
guess, that will explain, too--I was a little confused with--
when you responded to Mr. Duncan that the law gives the 
Secretary the ability to grant waivers, a type of exception.
    So, with that, Mr. Conyers, the Ranking Member of the 
Judiciary Committee, actually voted against this bill when it 
came to the floor. The reason he voted against the bill is 
because it didn't provide the waivers for certain categories.
    Let me read his quote: ``It contains no exceptions for 
journalists, researchers, human rights investigators, or other 
professionals.'' Again, ``It contains no exceptions for 
journalists, researchers, human rights investigators, or other 
professionals.''
    To me, that is pretty clear that he said it contains no 
exceptions, whether waiver or exemptions. This bill contains no 
exceptions. So do you see that that is clear that, based on the 
testimony of the Ranking Member, who was opposed to the bill, 
because it didn't do exactly what the Department is claiming 
that it does now--do you--does the Department know more about 
the intent of the law than the actual Members of Congress?
    Ms. Johnson. No, sir. I think, again, the text of the new 
law is clear that the Secretary of Homeland Security has the 
ability to waive the dual national and the travel restrictions, 
if it is found in the law enforcement or National security 
interests of the United States.
    I think when we were looking at the waivers, again, we were 
looking at categories of travelers under the National security 
provisions. I think that we were trying to look at, again, a 
limited scope and reviewing those on a case-by-case basis.
    I don't know if they were looking at--for broader 
exemptions, but the intent is, again, to look at it in a very 
limited and narrow focus and on a case-by-case basis.
    Mr. Loudermilk. Well, there is nothing in Mr. Conyer's 
statement that says case-by-case. He says it contains no 
exceptions. When we were talking about a moment ago, there are 
waivers and exemptions. Both are types of exceptions.
    He says it contains no exceptions. Not case-by-case. Not 
individual. It contains no exceptions. I don't know how you 
derive anything different. This is, again, I think, the Ranking 
Member of the Judiciary Committee, would be pretty 
knowledgeable about what the intent of the law is.
    Given that, there is clear legislative history here that 
this bill, including the floor statements and other statements, 
did not intend to do what the Department is doing. Under oath, 
you are under oath here today, are you willing to say that this 
law provides for these broad categorical exemptions?
    Ms. Johnson. These are, again, the text of the law is 
clear. The Secretary of Homeland Security has the ability to 
waive those dual national and travel restrictions, if it is in 
the National security interests of the United States.
    We are not asking for blanket, categorical waivers. We are 
looking at a limited and narrow focus, and, again, reviewing 
them on a case-by-case basis. I think this approach is 
consistent with other waivers, such as under the Immigration 
and Nationality Act, where there are broad categories, but we 
look at them in an individual basis.
    Mr. Loudermilk. Oh. One last question. How many meetings 
did the Secretary Kerry and Secretary Johnson have regarding 
these exemptions, prior to the announcement? Do you know?
    Ms. Johnson. I don't. I know they talked frequently. I know 
there was one meeting that I, personally, sat in on.
    Mr. Loudermilk. There was one meeting before the decision, 
the announcement was made?
    Ms. Johnson. Yes. Yes.
    Mr. Loudermilk. How many meetings since then?
    Ms. Johnson. I don't know if they have talked on a regular 
basis or not. But there was one meeting that I sat in, before 
the announcement. Yes, sir.
    Mr. Loudermilk. All right.
    Mr. Chairman, I yield back.
    Chairman McCaul. The Chair recognizes Mr. Richmond.
    Mr. Richmond. Mr. Chairman.
    I guess I will pick up where my colleague just left off, in 
trying to determine the exemptions which, my understanding, 
would be outright exemptions of categories of people, and then 
waivers, as you all define as on a case-by-case basis and the 
Secretary has the authority to do that.
    My colleague quoted John Conyers, who I certainly respect 
and made him an authority, but John Conyers is also asking for 
us to vote on voting rights. I don't hear anyone quoting him or 
moving to do that.
    What it sounds like to me is that you all were asking for 
the blanket exemption for those categories, and, when you 
didn't get it, some lawyer in your office said, well, it is not 
a big deal, because you can do it by waivers on a case-by-case 
basis.
    Is that probably fair, that someone came to you and said 
that you could do exactly what you want to do by waiver, as 
opposed to, I guess, continuing to negotiate an exemption?
    Ms. Johnson. The law actually says that the Secretary of 
Homeland Security has the ability to utilize a waiver to waive 
the dual national and travel restrictions, if it is in the law 
enforcement and National security interests of the United 
States.
    Mr. Richmond. Did we have any conversations about taking 
that waiver provision out of law, or striking that, so that the 
Secretary would not have the authority to waive on a case-by-
case basis? Did anyone raise a concern about that?
    Ms. Johnson. I was not part of any of those discussions, so 
I don't know.
    Mr. Richmond. Let me just ask you, in terms of cost, how 
much more time and energy and resources are you all gonna use 
to look at a waiver on a case-by-case basis, or if the person 
had to actually go through the visa process?
    Ms. Johnson. I have Consular Affairs here that might be 
able to speak to the consular side of the house. I think, 
through this terrorism threat prevention cell, which, again, is 
part of the National Targeting Center, State Department already 
has bodies there that work this.
    Yes, it will be a few more resources. I think, again, what 
we are looking at is, through the Visa Waiver Program, the 
ability to get the information we receive from these foreign 
partners, under the requirements of this program, actually help 
with those resource issues. They provide more information on 
known and suspected terrorists and criminals that we can screen 
against to protect our homeland.
    So, without that information, it is certainly difficult to 
do that kind of screening, even in the visa context.
    Mr. Richmond. Well, and let's move on to, I guess, what 
your ultimate goal is when you say the National security 
interests, which is why you now have implemented waivers, or 
planning to, because of our partners.
    What have our partners done, in terms of how they treat 
travel to Syria or any of the other conflict zones that support 
terrorism?
    Ms. Johnson. You mean, our Visa Waiver partners, in 
particular?
    Mr. Richmond. Yes.
    Ms. Johnson. I can take that question back, if you are 
looking for more specifics down per country. I think they are 
very concerned about travelers from these countries, certainly. 
But, again, I think the important focus here, when we are 
looking at these waivers, we are not looking to have random 
people who go to Syria and come back.
    We are looking at very limited scoped waivers for 
individuals, again, on a case-by-case basis, who might be 
working--that are working on these National security 
objectives.
    So, again, it is not just somebody who goes to Sudan or 
Syria and comes back. But I believe these countries are, you 
know, just as concerned. But, again, this partnership, under 
the VWP program, means they also receive information from us on 
known and suspected terrorists. They receive our--a good chunk 
of our database and our terrorism screening watch list, which 
helps them--aid in their screening, as well, to protect their 
borders.
    Mr. Richmond. So it is--I mean, it is mutually beneficial, 
and I would say beneficial. But it is absolutely mandatory that 
all of the partners cooperate, in order to make not only them 
safer, but us safer, also.
    Was this becoming a problem, in terms of the relationship 
with our partners?
    Ms. Johnson. You mean the law, or----
    Mr. Richmond. The law, yes.
    Ms. Johnson. I think they were very concerned that their 
citizens were being--you know, the affected travelers, under 
this law, were considered heightened security risks. So, they 
had registered a number of concerns about that.
    I had, again, conversations yesterday. They were very--they 
want to protect the U.S. homeland, but are very concerned about 
the perception that individuals that go to, again, work for 
humanitarian organization in Darfur are suddenly being 
considered a heightened security risk. That was a very big 
concern of theirs, yes.
    Mr. Richmond. Well, I would just tell you that I do have a 
concern, when it comes to protecting the homeland. I think that 
we are on a very slippery slope, in terms of how far we go. 
But, to the extent that the experts believe that it creates a 
better relationship with our partners and the fact that it will 
keep us more secure, I think that language is clearly within 
the law, that says that you have the right to waive it, if it 
is in the National security interest.
    If our negotiators had a problem with that, they should 
read that line, take it out, and then I think that all the 
emails and everything else we went back and forth and talked 
about today, they would have every right to be upset about, 
because you asked for an exemption and you didn't get it. But 
if they were--wanted to outlaw the waivers, then that language 
just shouldn't be in there.
    But if it is in there, we can't come back and get mad that 
you are using language that is already there. I think that you 
have to make sure that you are confined to the spirit of what 
those waivers are and not go too far with defining National 
security interests and--because, at the end of the day, we just 
don't want the American people less safe. We don't want to be 
negligent in our responsibility to make them safe.
    With that, I will yield back.
    Chairman McCaul. I thank the gentleman.
    Now, the Chair recognizes Mr. Ratcliffe.
    Mr. Ratcliffe. Thank you, Mr. Chairman.
    Ms. Johnson, I, based on your testimony earlier, I know 
that you played a role, with respect to the negotiation of 
text, for H.R. 158. Because of that, I know that you were aware 
that these special categories of exemptions, travel for 
humanitarian purposes, for business purposes, and for 
journalistic purposes, were requested by the State Department 
and were rejected by Congressional negotiators, as reflected in 
the emails that Chairman McCaul put on the screen earlier. 
Correct?
    Ms. Johnson. I was not involved in the discussions, the 
negotiations of the law, but I am very aware of those 
discussions. Yes, sir.
    Mr. Ratcliffe. Okay. You were aware, because those special 
categories were rejected and left out of the text, that groups 
like the ACLU opposed this bill becoming a law?
    Ms. Johnson. I was not aware of that.
    Mr. Ratcliffe. Okay. That organizations were opposed to it 
for that reason?
    Ms. Johnson. Not aware of that, no.
    Mr. Ratcliffe. Okay. Well, were you aware that Members of 
Congress, like Ranking Member Conyers, actually voted against 
the law, because those specific exemptions were not included?
    Ms. Johnson. Yes, we discussed that earlier. I understand 
he, also, came out with a statement in support of the waiver 
categories.
    Mr. Ratcliffe. So, despite the opposition of Members like 
Mr. Conyers, you know, of course, that the bill passed into law 
with an overwhelming vote of 407-19, and the President signed 
it into law on December 18.
    Now, I ask you all that, because, you know, your written 
testimony and your verbal testimony today really seems to talk 
about a need and a justification for some of these special 
categories. To me, I have to tell you, that really just seems 
like a re-litigation of an issue that has already been lost by 
the State Department.
    Congress acted here. I don't think there is any ambiguity, 
with regard to Congressional intent. These exceptions were 
rejected, and the President signed them into law. Because of 
that, I hope that you can appreciate why so many of the folks 
that have been in here today see it as the height of arrogance 
by the administration and Secretary Kerry to send a letter to 
the Iranian Minister of Foreign Affairs less than 24 hours 
after the President signed this into law, stating an intent to 
disregard the law.
    In so doing, to place the interests of the Iranian economy 
in front of the National security interests of Americans. Can 
you see why folks are upset by that?
    Ms. Johnson. I would note that, for the letter that 
Secretary Kerry wrote to Foreign Minister Zarif was in response 
to the Iranians publicly claiming that this law violated the 
commitments of the JCPOA. In fact, in that letter, he was 
actually defending the law and stressing that it was not a 
violation of the commitments against the JCPOA.
    He writes many of these letters----
    Mr. Ratcliffe. Well, let me ask you about that. Do you have 
a copy of the letter?
    Ms. Johnson. We have one here, yes.
    Mr. Ratcliffe. Okay. Well, great, because--and let me read 
this. I want to make sure I get it right. This is a letter from 
Secretary Kerry to the Foreign--to the Minister of Foreign 
Affairs in Iran.
    In the second paragraph, he says, ``I am also confident 
that the recent changes in visa requirements passed in 
Congress, which the administration has the authority to waive, 
will not in any way prevent us from meeting our JCPOA 
commitments, and that we will implement them so as not to 
interfere with the legitimate business interests of Iran.''
    Did I read that accurately? Did I read that accurately?
    Ms. Johnson. Yes, sir.
    Mr. Ratcliffe. Okay. So this letter doesn't say that the 
administration has the authority to waive for law enforcement 
purposes or National security purposes. Does it?
    Ms. Johnson. No, sir.
    Mr. Ratcliffe. Okay. It doesn't say the administration has 
the authority to waive on a case-by-case basis, as you have 
said today. Does it?
    Ms. Johnson. No, sir.
    Mr. Ratcliffe. All right. It just tells the Iranian 
government that the administration has the authority to waive 
so as not to interfere with the legitimate business interests 
of Iran.
    Now, it, also--I want to make sure I read that correctly--
doesn't say that we may implement them. Doesn't the language 
say we will implement them so as not to interfere with the 
legitimate business interests of Iran?
    Ms. Johnson. Yes, sir.
    Mr. Ratcliffe. Okay. It doesn't say we may implement these. 
It doesn't say we might do it. It doesn't say we might do it on 
a case-by-case basis, as you have said today. It says we will 
implement them so as not to interfere with the legitimate 
business interests of Iran.
    Now, we can have a debate about whether there even is such 
a thing as a legitimate business interest in Iran, but we 
really can't debate whether or not an Iranian business interest 
has anything to do with law enforcement in this country, can 
we?
    Ms. Johnson. The law does say that they can waive for 
National security and law enforcement purposes. This letter was 
defending the law, in response to a public assertion by the 
Iranians that it was violating the commitments of the JCPOA.
    Mr. Ratcliffe. Well, you know, it is funny, because when 
you talk about what is in the National security interests of 
our country, for the last several decades, our National 
security interest has been to sanction Iran. It has been to 
cripple the business interests in Iran. It has been to cripple 
their economy. Those sanctions, frankly, were working pretty 
well, until this administration did away with them.
    You know, Ms. Johnson, I don't want to shoot the messenger. 
Maybe we need to bring Secretary Kerry here. Maybe we need to 
remind Secretary Kerry that he is no longer Senator Kerry, that 
he doesn't get to make laws anymore.
    I would like to know, frankly, from Senator Kerry whether 
he ever intended to honor Congressional intent, or whether this 
negotiation with Congress was ever in good faith, or whether 
the administration had already planned to force these special 
categories into the National security waiver.
    Either way, it is this type of gotcha attitude, it is this 
defiance of the rule of law, which make the American people not 
trust this administration. I don't blame them.
    With that, I yield back.
    Chairman McCaul. Chair recognizes Mr. Walker.
    Well, okay. On my list--I am sorry. Mr. Carter.
    Mr. Carter. Thank you, Mr. Chairman. Mr. Chairman, let me 
preface my remarks, my questions, Mr. Chairman, by just saying 
that, while I am very respectful of the Commissioner and Ms. 
Johnson being here and appreciate them being here, very much, 
they are, Mr. Chairman, in my opinion, they are just overseers 
and implementers of this.
    We need the people here, testifying before us, who have 
actually had the responsibility of doing this. That is the 
White House, the Secretary of State, the Secretary of Homeland 
Security.
    So, Mr. Chairman, I hope that we can work toward getting 
them here to answer these questions, again, respectfully, to 
the witnesses who are here today.
    Having said that, Mr. Chairman, Ms. Johnson, respectfully, 
I remind you, you are under oath. Whose decision was it? Whose 
decision was it to ignore the intent and the plain language of 
the law? Whose decision was that? To create these 5 categories 
of exemptions, whose decision was it?
    Ms. Johnson. Sir, the text of the law provides for a waiver 
to--against those----
    Mr. Carter. Whose decision was it?
    Ms. Johnson. So, just like all policy that we do, both at 
the State Department--it was an entire deliberation around the 
Department. We worked very closely, again, taking into 
consideration Congress's concerns with blanket waivers. We 
worked with our Department of Homeland Security colleagues, in 
tandem, to look at what might be possible under this waiver 
exemption, under the law.
    Mr. Carter. So you are saying that it was the State 
Department? It was everybody in the State Department was 
involved in this decision?
    Ms. Johnson. We have regional bureaus, certainly, that are 
very concerned about----
    Mr. Carter. Did you consult with anyone at the White House? 
Was anyone at the White House, anyone in the administration----
    Ms. Johnson. Yes, we talked----
    Mr. Carter. Were they involved in that?
    Ms. Johnson [continuing]. To the White House. It was a 
White--this is a collaborative effort. This was State 
Department, Department of Homeland Security, and the White 
House, yes.
    Mr. Carter. So it was people who were, also, involved in 
the agreement, the agreement that Congress had with the 
administration? They were involved in this decision?
    Ms. Johnson. Yes.
    Mr. Carter. You know, we used to have a Governor in the 
State of Georgia, who also served as a United States Senator. 
It was Al Miller. He used to--one of his favorite sayings was 
always that, you know, if you are walking in the woods and you 
see a turtle on a fence post, you can bet that somebody put 
that turtle on that fence post. It didn't get there by itself.
    Somebody did this. Somebody had the intent of doing this. 
That is what bothers us so much. You know, Ms. Johnson, you 
don't know my daddy. My daddy is the smartest man I have ever 
met, not the most educated, but the smartest. He always told 
me, he used to say, ``Son, whenever you think you are the only 
one who is right and everybody else is wrong, you have to stop 
for just 1 minute. You have to think, you know, it might not be 
everybody else. It might just be you.''
    I always remember that. Here we had 407 Members of 
Congress, of the United States House of Representatives--now I 
have been here almost 14 months now. I can tell you, when you 
get 407 Members to agree on something, that is strong.
    Here we had 407 Members agree on this and vote in favor of 
this, under the auspices of this administration, or this 
agreement with this administration. Yet, the administration 
goes and voids this agreement altogether.
    Don't you find that to be somewhat disrespectful of the 
American public, in general? I mean, if we are elected by the 
people, that has gotta be disrespectful, in my book. What do 
you think?
    Ms. Johnson. The text of the law offers up a waiver.
    Mr. Carter. What about the intent? Don't tell me that 
intent doesn't matter, because it does, in this case, because 
the administration knew the intent. They agreed, and they knew 
the intent.
    Ms. Johnson. Again, we understood the intent, very clearly, 
in the text of the law, very clearly----
    Mr. Carter. Then why did--why did you go against the 
intent?
    Ms. Johnson. I am saying that these are not blanket waivers 
and, again, we are very clear that these would be used on a 
very limited, case-by-case basis in a narrow and tailored 
focus.
    Mr. Carter. Well, let me ask you this. You know, it is 
something else that concerns me greatly is that, if we were 
talking about tax policy, if we were talking about the economic 
issues, it would be one thing. But we are talking about 
Americans' safety. That is what is so concerning to me.
    Let me ask you, the administration didn't decide on their 
own to provide an exemption for the journalists, the 
researchers, the human rights investigators and the other 
professionals. If they weren't getting this exemption, could 
they still get here?
    Ms. Johnson. They can go get a visa, as well, yes.
    Mr. Carter. Well, why not do it that way, then? Why not 
just leave it to the visa process?
    Ms. Johnson. Well, as we discussed, and I mentioned in my 
opening remarks, I mean, the partnership with these VWP 
partners is a counterterrorism tool. Very--they are very 
concerned about the fact that a number of their citizens, 
affected by this law, are treated as heightened security 
risks----
    Mr. Carter. You know----
    Ms. Johnson [continuing]. And are participating----
    Mr. Carter. I am sorry. I have to disagree with you on 
that. I think that if they had wanted them in here, the visa 
process would have been the way to go.
    Mr. Chairman, again, respectfully, thank both of these 
witnesses for being here. I know, I have worked with the 
commissioner before. I know him to be an honorable man. But we 
ain't got the right people here. We need the Secretary of 
State. We need the Secretary of Homeland Security. We need 
someone from the White House.
    Mr. Chairman, I yield back.
    Chairman McCaul. In response, the Secretary will be here 
fairly soon, in a budget hearing, and I am sure this issue will 
come up at that time. We did request a higher-level political 
appointee.
    In response, not to diminish your testimony, Ms. Johnson, 
but I think you were, sort-of, thrown under the bus, to be 
honest with you, on this.
    The Chair now recognizes Mr. Walker.
    Mr. Walker. Thank you, Mr. Chairman.
    Ms. Johnson, I want to go back to something you said a 
little earlier. I think you were touching on it just a few 
minutes ago, in responding to my colleague from Georgia, Mr. 
Carter, about this Iranian's--if you used the word are offended 
by the travel bans, or it is a problem there. I don't 
understand why that is an overwhelming concern of ours, that is 
offensive to them. Can you expound on that make and make sure I 
heard that correctly, or is that----
    Ms. Johnson. No, sir. It was that they were publicly 
complaining that the law violated the JCPOA. The Secretary's 
response was to defend the law. So that is what my point was 
there.
    Mr. Walker. Yes, and that is confusing to me, because, you 
know, in the 13, 14 months that I have been here in Congress, 
it is very rare that you have both sides of the aisle coming 
together. Sixty-three percent of the House voted against the 
Iranian deal, even to begin with. So it is already something 
that, in the flavor of the American people, there are great 
concerns.
    So being overly-worried about the tenor of what this is 
doing in the mood of the country, I don't know that that is our 
primary concern. Just yesterday, CNN article was quoting 
Lieutenant General Vincent Stewart. He said, ``ISIS will 
probably attempt to conduct additional attacks in Europe and 
attempt to a direct attacks on the United States homeland in 
2016.''
    James Clapper, as you know, the director of national 
intelligence, also said, ``Taking advantage of the torrent of 
migrants to insert operatives into that flow.'' Now, these are 
people who study this daily. He also added that they were 
pretty skilled at phony passports, so they can travel 
ostensibly as legitimate travelers.
    Then, finally, he also added, speaking of the nuclear deal, 
the aforementioned that we were just talking about, he said, 
``We, in the intelligence community, are very much in the 
distrust and verify mode.'' May I remind you again, that this 
is the world's leading sponsor of state terrorism?
    So why we are erring on the side of being more concerned 
with what somebody might think about it, when we know that 
there is an intent, obviously, historically, to do us harm? 
Here is a specific question I do have for you, though.
    Is it your understanding that these waivers are being 
applied in a manner to appease Iran, speaking of the context of 
what we are talking about, and protect President Obama and 
Secretary Kerry this whole agreement is--do you feel like that 
is part of it? There is an appeasement here of trying to keep 
this deal structured the way that it is?
    Ms. Johnson. No, sir. This is not about Iran. This is about 
protecting the U.S. homeland and American public. I think what 
we have said is there is an option for a waiver into this law. 
We were looking at that in the National security objectives.
    Again, the partnership under the VWP is a huge 
counterterrorism tool. I just stress that, again, that just 
because someone might fall under this identified category of a 
waiver does not mean they would get a waiver or be able to 
travel under the VWP.
    I think one piece of information that the CBP commissioner 
I have heard say multiple times in DHS, if there is any 
concern, they don't offer, you know, travel under the VWP. So 
if there is not enough information, they don't.
    Again, the VWP partnership provides us with information 
that enhances our screening capabilities. That way, we are able 
to protect the homeland in a better way than we would 
otherwise.
    Mr. Walker. Are you under the impression, or the 
understanding, that holding a tougher line and opposing these 
VWPs are going to increase the threat to our homeland security? 
Is that the point that you are making?
    Ms. Johnson. No. I am saying we leverage this Visa Waiver 
Program, in order to be able to get a lot of information from 
these foreign partners. Again, I also said, it is become an 
international standard, a lot of these security requirements.
    It also helps us with other countries to improve their 
screening capabilities. But it is an important program. We are 
screening all of these individuals, whether they come through 
the VWP or through a visa. In the exact same way, we are 
screening against all of our terrorism databases, our criminal 
databases, the INTERPOL lost and stolen passport database, 
again, with information provided by these countries under the 
VWP.
    Mr. Walker. Thank you.
    Commissioner Kerlikowske--is that close? Okay. All right. 
How can we be sure that business travelers, these humanitarian 
workers and journalists--I spent two decades as a minister. I 
have lots of friends that are connected in the missionary 
communities. I want to make sure that no one is connected with 
these terrorist activities.
    What is the full--I mean, what is your advice on how we can 
make sure of that?
    Mr. Kerlikowske. So on February 23, Congressman, there will 
be a series of questions on that Electronic System for Travel 
Authorization. In particular, will be questions for not only 
the humanitarian organizations, that I outlined earlier, but, 
for example, on businesses.
    If you were doing business in Iran under--and, of course, 
they would get you would have to have a visa from that country. 
You would have a specific business visa. So we ask for that 
information.
    I would tell you, we have also reached out to multinational 
organizations, multinational businesses that we know already 
have interest or are doing, or would like to do, business in 
that country, and asking them for information about, well, who 
is going to be there from your organization.
    Who can we be in contact with or get information from, so 
that we can verify that that person is, in fact, who he or she 
says they are, is doing business there on behalf of your 
company or--and is an employee of your company? So there is a 
whole series of vetting.
    Mr. Walker. Well, thank you for your response.
    Thank you. Yield back, Mr. Chairman.
    Chairman McCaul. Thank you. The Chair recognizes Mr. Katko.
    Mr. Katko. Thank you, Mr. Chairman.
    Chairman McCaul. You want to sit in the chair?
    Mr. Katko. Mr. Kerlikowske, I seem to remember your name in 
supervisory circles when I was an OCADEF prosecutor for many, 
many years. So it is nice to see you in person, after all these 
years.
    Just, for both of you, this doesn't require long answers, 
but I think you both admit that the issue of the waivers and 
extent of the waivers that were discussed in the bill were 
actually pretty well-discussed before it became law. Is that 
fair to say to both of you?
    Mr. Kerlikowske. Yes.
    Ms. Johnson. That is my understanding.
    Mr. Katko. Okay. So they were discussed, and they were--and 
the very things that you are talking about now were rejected, 
as part of the final bill. So, now, we are at this process 
where I understand from your testimony before my--the whole 
time today, that you are going to great lengths to make sure 
that the people that are part of this--these exceptions that 
you are developing are properly vetted. Is that fair to say to 
both of you?
    Mr. Kerlikowske. Yes, it is.
    Ms. Johnson. Yes, sir.
    Mr. Katko. I have got a simple question for you, then. Why 
the heck didn't you just go along with what the law said and 
expedite the visa process for these people, instead of going 
to--driving these gigantic exceptions into the law that was 
clear, and you both acknowledge were fully discussed 
beforehand?
    Why didn't you just go with the--why didn't you just 
expedite the Visa Waiver--I mean, the visa process for these 
individuals that were no longer eligible for Visa Waiver? Why 
not just take the visa process and say we are going to put this 
on steroids? We are gonna follow the letter of this law, 
instead of driving trucks through it with exceptions?
    Why not just say, we are gonna make the visa process more 
streamlined for these individuals, so we--so they won't be too 
inconvenienced?
    Ms. Johnson. So, as I mentioned earlier, I mean, the--they 
certainly can apply for visas. I know they can get expedited--
--
    Mr. Katko. No, no. That is not my question. My question is, 
quite simply, why didn't you just take these individuals that 
were--that are now no longer eligible for a visa--visa waivers, 
and simply say, okay, now that you are not--you are 
inconvenienced by this, but we are gonna make it as simple as 
possible, because we don't want to disrupt travel. We don't 
want to disrupt everything.
    Instead of sweeping them all under the umbrella of National 
security, which is, quite frankly, B.S., and why didn't you 
just do it the right way and just simply say those of you who 
now have to have visas, we are gonna make it--we are gonna 
expedite this, so you are minimally inconvenienced? Why didn't 
you do that?
    Ms. Johnson. The Visa Waiver Program, again, the partners 
were very concerned, and we are very concerned of the fact that 
a number of these individuals would be affected by this, would 
be treated as heightened security risks, when----
    Mr. Katko. But that is basically----
    Ms. Johnson [continuing]. In fact----
    Mr. Katko [continuing]. What you are treating them as right 
now, because you are doing an extra screening on them now. So 
what is the difference?
    Ms. Johnson. So, again, there is an option for a waiver 
under the law. We were pursuing that under the National 
security objectives of the United States.
    Mr. Katko. Okay. I understand this. You are starting to 
sound like Marco Rubio did Saturday night, here, okay? What I 
want to know is, from a--did you--first of all, I mean, a 
simple question. Did you even discuss or examine the 
possibility of simply expediting the visa process for these 
individuals, instead of just blowing an exception into this 
law?
    Ms. Johnson. We are offering expedited visas to people who 
are affected under this law now.
    Mr. Katko. Okay. So, if you are doing it for some people, 
right? That are affected by this, correct?
    Ms. Johnson. Yes.
    Mr. Katko. Why didn't you do it for these whole other 
categories that you guys grafted in here, knowing that you were 
going to incur the wrath of Congress, knowing that you were 
ignoring what Congressional intent was?
    Ms. Johnson. Not trying to sound like Marco Rubio, but 
there is an option for a waiver under the law.
    Mr. Katko. Well, okay. Well, we disagree. Let's--we 
disagree on that one. Okay? All right. Mr. Kerlikowske.
    Mr. Kerlikowske. I think there are a couple of things that 
are helpful. One, I wouldn't know what it would take for the 
State Department, with resources, personnel, et cetera, and 
where those locations of consulates and embassies are.
    I do know that we depend very clearly on a close working 
relationship with these Visa Waiver countries under all of the 
different guidelines that are now, or restrictions that are now 
in place to share information, and that by telling them that a 
number of people would not be considered, or would be 
considered at a heightened risk and additional security could 
have a negative impact on that communication that we value, 
very clearly, with them.
    So I would--and remember, too, even though we have not had 
a single application, if there is any information that would be 
of a derogatory nature or cause us concern, we will default, at 
CBP, to denying admissibility and requiring that that person 
show up at the embassy or the consulate for, in fact, a visa 
application.
    Mr. Katko. Right. I understand what you are saying, but--
and I understand, you know, relationships are important. But 
there are ways to smooth over the relationship without ignoring 
the law. It just seems to us, here, and I think bipartisan, 
mostly, that the law was being ignored and the Congressional 
intent was being ignored.
    I guess I would urge you to maybe explore the possibility 
of going back and rethinking this policy, and maybe, maybe, 
thinking about messaging to your--our partner countries, we 
want your business, but we are also concerned about National 
security. So, work with us, here. We will expedite the visa 
process for ya, and do it the right way.
    That is--I would suggest you contemplate that. Thank you.
    I now yield back.
    Chairman McCaul. Okay. Just, in closing, first I want to 
thank the two of you for being here today. But I just want--you 
know, having chaired the committee before the bill was marked 
up, having been intimately involved in the discussions between 
the Congress and the White House and State Department and the 
Department of Homeland Security, you know, in my judgment, you 
have taken exceptions that were rejected by Congress and just 
approved them on your own authority under this waiver authority 
that was in the legislation.
    It is very disturbing to us. We will continue our oversight 
authority on this on, as you say, a case-by-case basis, but we 
can--we also have legislative authority to fix this. In this 
legal memo--now, I know you said case-by-case, but you said 
additionally, as discussed in the legal paper, the National 
security waiver can be exercised by category, not just by 
individuals.
    That doesn't sound like case-by-case basis to me. That 
sounds like a broad category, like what we have seen by 
Executive Order in immigration. Can you explain that?
    Ms. Johnson. Again, this is a deliberative memo. So, under 
the INA, I know there are categories of waives, which we also, 
then again, assess on an individualized basis. But the process 
of that, again, was looking at the broad options under the 
waiver, that is under the law, and looking at those, again, as 
a deliberative process throughout the Department, taking into, 
obviously, Congressional intent and our conversations on 
regular consultations with the Department of Homeland Security.
    Chairman McCaul. Well, and, Commissioner, if I can just 
say, in this memo, and this is your internal deliberations, 
legally, and I am an attorney, ``the law gives the Secretary of 
Homeland Security authority to waive this ineligibility, if the 
Secretary determines such a waiver is in the law enforcement or 
National security interests.''
    ``As discussed, this is a lesser standard than that imposed 
by other statutes that require finding that a waiver is vital 
to, or essential to, the National security interests of the 
United States.''
    Perhaps we didn't draft this per the administration's 
liking, but I would argue that there may be another option 
here, and that is to pass another law that had the language 
vital to or essential to the National security interests of the 
United States.
    I know neither of you are attorneys, but would that close 
the loophole on these exceptions, if we did that?
    Mr. Kerlikowske. Mr. Chairman, I couldn't answer that, but 
I could tell you that in all of the conversations and the 
discussion, the many meetings I have had with Secretary 
Johnson, he is going to be assured of a narrow interpretation 
of reviewing these--the process and to make sure that the 
process is in place.
    I know you have made it very clear about the oversight that 
you and the committee will provide on this. So, I would tell 
you that even though we have never entered into a process yet, 
or had a request for a waiver, that the Secretary has no 
interest or intention of issuing a waiver, if that should come 
about, without making sure that----
    Chairman McCaul. And I have discussed this----
    Mr. Kerlikowske [continuing]. It is foolproof.
    Chairman McCaul. I have discussed this with the Secretary, 
and, you know, he is a--I know the pressure he is under. I 
think this is a State Department call and Homeland was put in a 
difficult position. That is my assessment.
    In my judgement, just in my final closing remarks, I 
believe that we, in this case, as always in the State 
Department, with this foreign policy, have put the Iran deal 
over the National security interests of the American people.
    With that, I do want to thank the witnesses for being here. 
Members of the committee may have some additional questions 
that we will ask you to respond in writing. Pursuant to the 
rules, it will be held open for 10 days. Without objection, the 
committee stands adjourned.
    [Whereupon, at 1:01 p.m., the committee was adjourned.]



                            A P P E N D I X

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Questions From Ranking Member Bennie G. Thompson for R. Gil Kerlikowske
    Question 1a. The Visa Waiver Program Improvement and Terrorist 
Travel Prevention Act of 2015 prohibits individuals with recent travel 
to citizenship in Iraq, Iran, Sudan, or Syria and such other countries 
designated by the Secretary of Homeland Security from traveling to the 
United States under VWP. What specific changes to Customs and Border 
Protection's Electronic System for Travel Authorization (ESTA) will be 
necessary to determine whether someone is prohibited from traveling to 
the United States pursuant to the law?
    Answer. As of February 23, 2016, CBP added several new questions to 
the ESTA application to help CBP determine if an individual is 
prohibited from traveling to the United States under the VWP. The new 
questions include:
   Have you traveled to, or been present in, Iraq, Syria, Iran, 
        or Sudan on or after March 1, 2011?
   If yes, provide the country, date(s) of travel, and reason 
        for travel.
   Have you ever been a citizen or national of any other 
        country?
   If yes, other countries of previous citizenship or 
        nationality?
   Are you a citizen or national of any other country?
   If yes, what country?
    Question 1b. What is the status of those changes?
    Answer. CBP launched the updated website with new questions on 
February 23, 2016.
    Question 2a. The Act authorizes the Secretary of Homeland Security 
to issue a waiver if doing so is ``in the law enforcement or national 
security interests of the United States'' and DHS has announced it 
intends to consider waivers from certain categories of prospective VWP 
travelers.
    What specific process will be used to determine whether a traveler 
will be issued a waiver?
    Answer. As it currently stands, the waiver process is a case-by-
case determination related to certain categories of aliens for which 
waivers may serve the National security or law enforcement interests of 
the United States. Categories under consideration include:
   Individuals who traveled to Iran, Iraq, Sudan, or Syria on 
        or after March 1, 2011, on behalf of an international 
        organization, regional organization, or sub-national government 
        of a VWP country on official duty;
   Individuals who traveled to Iran, Iraq, Sudan, or Syria on 
        or after March 1, 2011, on behalf of a humanitarian NGO on 
        official duty;
   Individuals who traveled to Iran, Iraq, Sudan, or Syria on 
        or after March 1, 2011, as a journalist for reporting purposes;
   Individuals who traveled to Iran for legitimate business-
        related purposes following the conclusion of the Joint 
        Comprehensive Plan of Action (July 14, 2015); or
   Individuals who have traveled to Iraq on or after March 1, 
        2011, for legitimate business-related purposes.
    Visa Waiver Program (VWP) applicants complete the new Electronic 
System for Travel Authorization (ESTA) application on-line and must 
respond to questions regarding travel to Iran, Iraq, Sudan, and Syria. 
The information provided by the applicant is used to determine if the 
subject may qualify for a waiver, which causes the application to be 
electronically referred to the Terrorist Travel Prevention Cell (TTPC) 
for manual review. The TTPC is a multi-agency coordinating cell 
leveraging both operational and intelligence resources from across the 
U.S. Government to make individualized National security waiver 
determinations for ESTA applicants seeking to travel to the United 
States. The TTPC will utilize a variety of border security, 
counterterrorism, and law enforcement systems as well as open-source 
data in conjunction with information provided through ESTA to determine 
if the subject may qualify for a waiver.
    Question 2b. What role will CBP play in that process?
    Answer. U.S. Customs and Border Protection (CBP) developed and 
maintains the Electronic System for Travel Authorization (ESTA) website 
as well as the case management and screening system for ESTA 
applications. CBP will coordinate with interagency partners and issue 
waivers of VWP) ineligibilities where appropriate.
    CBP's National Targeting Center (NTC) is the lead for the multi-
agency coordinating Terrorist Travel Prevention Cell (TTPC) leveraging 
both operational and intelligence resources from across the U.S. 
Government to make individualized National security waiver 
determinations for VWP travelers seeking to enter the United States. 
TTPC will utilize law enforcement systems as well as open-source data 
in conjunction with information provided on the ESTA application to 
determine if the subject may qualify for a waiver. CBP will accept the 
applications, refer eligible applications to the TTPC, and upon 
adjudication, notify the traveler of the determination.
    Question 2c. What circumstances would warrant a waiver?
    Answer. Waivers will be granted where a determination is made, on a 
case-by-case basis, that a waiver will serve the law enforcement or 
National security interests of the United States.
    Question 2d. What will the costs be to CBP for adjudicating 
waivers?
    Answer. CBP has determined that the TTPC will be initially 
established with 10 CBP Officers and staffed 7 days a week for up to 16 
hours a day. The TTPC will be funded by CBP's portion of the ESTA fee 
(which is currently $4 per ESTA application). CBP will adjust its 
staffing and cost estimates based on the number of waiver applications 
the TTPC receives.
  Questions From Honorable Barry Loudermilk for Hillary Batjer Johnson
    Question 1a. Recently, U.S. intelligence confirmed that over 6,600 
suspected ISIS fighters have passports from Western countries. Are you 
all aware of this?
    Answer. We are aware of reports indicating ISIS fighters have 
passports from Western countries. We closely monitor reports of this 
type and work within the interagency to develop and disseminate the 
information necessary to ensure that such individuals are not able to 
enter the United States.
    Question 1b. If so, what are you doing to ensure these ISIS 
fighters do not ``legally'' come into our country on stolen Western 
passports?
    Answer. All countries participating in the Visa Waiver Program are 
required to report their lost and stolen passports to Interpol, and the 
passport numbers of all visa applicants also are searched against 
Interpol's Stolen and Lost Travel Document database.
    The Department of State is dedicated to the protection of our 
borders, and we have no higher priority than the safety of our fellow 
citizens at home and abroad. We and our partner agencies throughout the 
Federal Government have built a layered visa and border security 
screening system. We continue to refine and strengthen the 5 pillars of 
visa security: Technological advances, biometric innovations, personal 
interviews, data sharing, and training. This layered approach enables 
us and our partners to track and review the visa eligibility and status 
of foreign visitors from their visa applications throughout their 
travel to, sojourn in, and departure from the United States.
    We continuously match new threat information to existing visa 
records. We have long recognized this function as critical to the way 
we manage our records and processes. This system of continual vetting 
evolved as post-9/11 reforms were instituted, and is now performed in 
cooperation with the Terrorist Screening Center (TSC). All records 
added to the Terrorist Screening Database are checked against the 
Consular Consolidated Database (CCD) to identify matching visa records. 
Matches are sent electronically from the Department of State to TSC, 
where analysts review the hits and flag cases for possible visa 
revocation. In addition, we have disseminated our data widely to other 
agencies that may wish to learn whether a subject of interest has a 
U.S. visa.
    Adapting technology to secure our borders is a critical component 
of our work. For example, the Department of State has deployed software 
to embassy consular sections world-wide designed to enhance our ability 
to detect falsified or fraudulent Syrian and Iraqi passports. DHS and 
the Department of State are cooperating in this effort. Furthermore, 
the Department of State has watchlisted all known lost, stolen, or 
otherwise invalid Syrian and Iraqi passports in the Consular Lookout 
and Support System (CLASS) database against which consular officers 
screen all visa applications.
    Question 2a. Back in October, this committee held a hearing on 
Worldwide Threats and Homeland Security Challenges, where I asked DHS 
Secretary Johnson, NCTC Director Rasmussen, and FBI Director Comey 
about the refugee crisis. These questions were never answered, so I 
would like to re-ask them: There have been varying data reports on the 
ratio of men to women and children coming into our borders. Most of the 
statistics I have come across indicate that the majority of Syrian 
refugees are predominately males, while a small percentage remains 
women and children. Is this true?
    If so, what is the ratio of Syrian refugee men to women and 
children?
    Question 2b. As we welcome an additional 10,000 Syrian refugees in 
fiscal year 2016 alone, how are you and your partner agencies planning 
to monitor admitted refugees to ensure violent extremists have not 
infiltrated their ranks?
    Question 2c. Is the United States prioritizing Christian refugees, 
who are focal persecution targets in Syria?
    Answer. Regarding the U.S. admission of Syrian refugees to the 
United States, the U.S. Refugee Admissions Program (USRAP) prioritizes 
admitting the most vulnerable Syrians, particularly female-headed 
households, children, survivors of torture, and individuals with severe 
medical conditions. Single men not traveling with family members and or 
joining friends or family in the United States make up only 2 percent 
of Syrian refugees admitted to the United States to date. In each 
instance, these individuals are only admitted after clearing intensive 
security screening--a process which pays additional attention to the 
relatively rare unattached, military-aged male applicant to the USRAP.
    Of the 2,978 Syrian refugees admitted to the United States since 
September 11, 2001, not a single one has been arrested or deported on 
terrorism-related grounds.
    The United States is committed to assisting people of all 
ethnicities, religions, and nationalities fleeing persecution. Since 
September 2011, the United States has admitted 2,833 Syrian refugees, 4 
percent of whom are members of religious minorities, including 
Christians and other religious minorities, such as Yezidis. Pre-war 
demographics indicated that Christians made up around 10 percent of the 
population in Syria, or about 1.8 million Christians; however, 
Christians account for only about 1.2 percent of the approximately 2 
million Syrian refugees in Egypt, Iraq, Jordan, and Lebanon who are 
registered with the United Nations High Commissioner for Refugees 
(UNHCR). In Turkey, which hosts another 2.6 million Syrian refugees, we 
do not possess data on the religious composition of such refugees, 
which the Turkish Government, vice UNHCR, has registered.

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