[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
THE PRESIDENT'S WAIVER OF RESTRICTIONS ON THE VISA WAIVER PROGRAM
=======================================================================
JOINT HEARING
BEFORE THE
SUBCOMMITTEE ON NATIONAL SECURITY
AND THE
SUBCOMMITTEE ON GOVERNMENT OPERATIONS
OF THE
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
SECOND SESSION
__________
FEBRUARY 10, 2016
__________
Serial No. 114-104
__________
Printed for the use of the Committee on Oversight and Government Reform
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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
JASON CHAFFETZ, Utah, Chairman
JOHN L. MICA, Florida ELIJAH E. CUMMINGS, Maryland,
MICHAEL R. TURNER, Ohio Ranking Minority Member
JOHN J. DUNCAN, Jr., Tennessee CAROLYN B. MALONEY, New York
JIM JORDAN, Ohio ELEANOR HOLMES NORTON, District of
TIM WALBERG, Michigan Columbia
JUSTIN AMASH, Michigan WM. LACY CLAY, Missouri
PAUL A. GOSAR, Arizona STEPHEN F. LYNCH, Massachusetts
SCOTT DesJARLAIS, Tennessee JIM COOPER, Tennessee
TREY GOWDY, South Carolina GERALD E. CONNOLLY, Virginia
BLAKE FARENTHOLD, Texas MATT CARTWRIGHT, Pennsylvania
CYNTHIA M. LUMMIS, Wyoming TAMMY DUCKWORTH, Illinois
THOMAS MASSIE, Kentucky ROBIN L. KELLY, Illinois
MARK MEADOWS, North Carolina BRENDA L. LAWRENCE, Michigan
RON DeSANTIS, Florida TED LIEU, California
MICK MULVANEY, South Carolina BONNIE WATSON COLEMAN, New Jersey
KEN BUCK, Colorado STACEY E. PLASKETT, Virgin Islands
MARK WALKER, North Carolina MARK DeSAULNIER, California
ROD BLUM, Iowa BRENDAN F. BOYLE, Pennsylvania
JODY B. HICE, Georgia PETER WELCH, Vermont
STEVE RUSSELL, Oklahoma MICHELLE LUJAN GRISHAM, New Mexico
EARL L. ``BUDDY'' CARTER, Georgia
GLENN GROTHMAN, Wisconsin
WILL HURD, Texas
GARY J. PALMER, Alabama
Jennifer Hemingway, Staff Director
David Rapallo, Minority Staff Director
Art Arthur, Subcommittee on National Security Staff Director
Willie Marx, Clerk
Subcommittee on National Security
RON DESANTIS, Florida, Chairman
JOHN L. MICA, Florida STEPHEN F. LYNCH, Massachusetts,
JOHN J. DUNCAN, JR., Tennessee Ranking Member
JODY B. HICE, Georgia ROBIN KELLY, Illinois
STEVE RUSSELL, Oklahoma, Vice Chair BRENDA L. LAWRENCE, Michigan
WILL HURD, Texas TED LIEU, California
------
Subcommittee on Government Operations
MARK MEADOWS, North Carolina, Chairman
JIM JORDAN, Ohio GERALD E. CONNOLLY, Virginia,
TIM WALBERG, Michigan, Vice Chair Ranking Minority Member
TREY GOWDY, South Carolina CAROLYN B. MALONEY, New York
THOMAS MASSIE, Kentucky ELEANOR HOLMES NORTON, District of
MICK MULVANEY, South Carolina Columbia
KEN BUCK, Colorado WM. LACY CLAY, Missouri
EARL L. ``BUDDY'' CARTER, Georgia STACEY E. PLASKETT, Virgin Islands
GLENN GROTHMAN, Wisconsin STEPHEN F. LYNCH, Massachusetts
C O N T E N T S
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Page
Hearing held on February 10, 2016................................ 1
WITNESSES
Mr. Gil Kerlikowske, Commissioner, Customs and Border Protection,
U.S. Department of Homeland Security
Oral Statement............................................... 9
Written Statement............................................ 11
Ms. Hillary Batjer Johnson, Deputy Coordinator for Homeland
Security, Screening, and Designations, Bureau of
Counterterrorism, U.S. Department of State
Oral Statement............................................... 18
Written Statement............................................ 21
Ms. Jessica Vaughan, Director of Policy Studies, Center for
Immigration Studies
Oral Statement............................................... 34
Written Statement............................................ 36
Mr. Emanuele Ottolenghi, Senior Fellow, Foundation for Defense of
Democracies
Oral Statement............................................... 46
Written Statement............................................ 48
Mr. Stephen Heifetz, Partner, Steptoe and Johnson, LLP
Oral Statement............................................... 69
Written Statement............................................ 71
APPENDIX
A letter from Karin Johnson, Director, Washington Legislative
Office and Joanne Lin, Legislative Counsel at the American
Civil Liberties Union to Rep. Mark Meadows, Rep. Ron DeSantis,
Rep. Gerald Connolly, and Rep. Stephen Lynch--in support of Hr
4380-the Equal Protection and Travel Act of 2016, submitted by
Rep. Thomas Massie............................................. 102
A letter from 65 Separate Organizations in Support of HR 4380-The
Equal Protection and Travel Act of 2016, Submitted by Rep.
Thomas Massie.................................................. 107
Responses to questions for the record by the U.S. Department of
Homeland Security, submitted by Chairman DeSantis.............. 110
Responses to questions from the U.S. Department of State,
submitted by Chairman DeSantis................................. 119
A letter from Secretary of State John Kerry to Foreign Minister
Javad Zarif, submitted by Rep. Jody Hice. The text of the
letter can be found online here: https://www.niacouncil.org/
text-sec-kerry-letter-to-zarif-regarding-visa-waiver-reform/
THE PRESIDENT'S WAIVER OF RESTRICTIONS ON THE VISA WAIVER PROGRAM
----------
Wednesday, February 10, 2016
House of Representatives,
Subcommittee on National Security, joint with the
Subcommittee on Government Operations,
Committee on Oversight and Government Reform,
Washington, D.C.
The subcommittees met, pursuant to call, at 3:00 p.m., in
Room 2154, Rayburn House Office Building, Hon. Ron DeSantis
[chairman of the Subcommittee on National Security] presiding.
Present from Subcommittee on National Security:
Representatives DeSantis, Mica, Duncan, Hice, Russell, Hurd,
and Lynch.
Present from Subcommittee on Government Operations:
Representatives Meadows, Jordan, Walberg, Massie, Mulvaney,
Buck, Carter, Grothman, Connolly, Maloney, Norton, Plaskett,
and Lynch.
Mr. DeSantis. The Subcommittee on National Security and the
Subcommittee on Government Operations will come to order.
Without objection, the chair is authorized to declare a recess
at any time.
The United States faces clear and present dangers from
Islamic jihadists both at home and abroad. From the attacks in
Paris to the massacre in San Bernardino, it is clear that
militant Islamists are on the march. Identifying terrorists and
stopping them before they can strike must be a priority for the
United States and its allies. Certainly, the Federal Government
has a duty to prevent terrorists and those sympathetic to their
aims from entering the United States, a duty that it is not
currently satisfying.
Almost 12 years ago, the bipartisan 9/11 Commission
provided a roadmap for the government to follow in fulfilling
these crucial responsibilities. It stated, ``Targeting travel
is at least as powerful a weapon against terrorists as
targeting their money. The United States should combine
terrorist travel intelligence operations and law enforcement
and a strategy to intercept terrorists, find terrorist travel
facilitators, and constrain terrorist mobility.''
Our consular officers abroad and the inspectors at our
ports of entry are on the first line of defense in this
strategy. Most foreign nationals who seek to enter the United
States must apply to the State Department and meet with one of
those consular officers to obtain a visa. Those officers are
trained to separate bona fide travelers from those with
malevolent intentions. Yet, as we have seen with the visa
issued to San Bernardino terrorist Tashfeen Malik, these
officers have not always been successful at weeding out
militant Islamists.
An exception to the rule that an individual who seeks entry
to the United States must apply for and receive a visa before
entering this country is the Visa Waiver Program. The Visa
Waiver Program allows foreign nationals of 38 countries, mostly
in Europe, to enter the United States as nonimmigrant visas for
up to 90 days without having to obtain a visa or undergo an in-
person interview at a U.S. consulate. Approximately 20 million
foreign nationals enter each year under the program,
constituting 37 percent of all visitors from overseas. And as
this committee has shown in testimony, many have overstayed
that 90 days without consequence.
The November 13, 2015, terrorist attacks in Paris made
clear that there were vulnerabilities in the Visa Waiver
Program. The terrorists in that massacre killed 130 people and
caused over 350 injuries, and at least five of the attackers
were French nationals, two of whom are living in Belgium, and
one was a Belgian national. And nationals of both France and
Belgium are able to enter the United States under the Visa
Waiver Program. Accordingly, at least six of the Paris
attackers could have attempted to enter this country under the
Visa Waiver Program. All they would have needed was a plane
ticket.
Those attacks highlight the fact that even within the
borders of our closest international partners, there are
insular communities sheltering militant Islamists bent on
destroying our way of life. Many Islamic jihadists in places
such as Syria are Western passport holders or dual nationals
who could take advantage of the Visa Waiver Program. This
exposes the American people to the possibility that these
militants, after being trained and further radicalized in Syria
and Iraq, could exploit the Visa Waiver Program to enter this
country.
These concerns and others were understood by this committee
in two hearings that we held in early December. In the first,
we identified flaws in the Visa Waiver Program that could be
exploited by terrorists and criminals. In the second hearing,
which followed from the findings of the first, the full
committee looked at potential defects in our nation's terrorist
screening scheme as a whole.
In response to these concerns and others, Congress crafted
a bipartisan measure that included several changes to the Visa
Waiver Program intended to prevent terrorists from exploiting
the program and to address other national security concerns,
and those changes took effect or signed into law in December.
The bill responded to concerns that were raised about the
risks related to visa-free travel by foreign nationals who
carry both passports, a visa waiver of countries, and of other
countries that are not friendly to the United States, as well
as individuals who have traveled to countries of concern and
state sponsors of terrorism, including Syria, Iraq, Iran, and
Sudan. It did not prevent those individuals from entering our
country, but it did require them to obtain a visa before coming
to the United States. It gave the Secretary of State the
authority to designate additional countries of concern. And
finally, the bill gave the Secretary of Homeland Security very
limited authority to waive these provisions for specific and
targeted national security or law enforcement purposes.
As it has done in the past, however, this administration
refused to abide by the limits placed on it by Congress. After
these changes were signed into law, the Iranian Government
objected that the restrictions would violate the nuclear
agreement, the so-called Joint Comprehensive Plan of Action,
which was adopted in October of 2015. The Iranians claimed that
the JCPOA obliges the United States not to take any actions
that will ``adversely affect the normalization of trade and
economic relations with Iran.''
In response, the administration moved to placate Iran. In a
letter to the Iranian Foreign Minister dated one day after the
President signed the visa waiver bill into law, the Secretary
of State made clear that the administration would find ways to
ensure that changes to Visa Waiver Program would not interfere
with Iran's ``legitimate business interests.''
Subsequently, on January 21, 2016, the administration
announced that it would use what was intended to be a limited
law enforcement exception to allow foreign nationals who have
traveled to Iran, Iraq, Sudan, and Syria as journalists, aid
workers, military or government workers, or for unspecified
legitimate business-related purposes to be issued waivers to
the restrictions contained in the bill.
Travel for purported legitimate business-related purpose
was exactly the type of travel that Congress sought to
restrict. In the real world, espionage is as likely to involve
transfer of restricted goods and technology by intermediaries
who are putatively citizens of friendlier neutral nations as it
is to be carried out in secret by foreign intelligence
officers.
I am concerned about these actions both as chairman of the
National Security Subcommittee and as a member of the House
Judiciary Committee. The Judiciary Committee chairman Bob
Goodlatte told the House Judiciary Committee that the
administration's decision to abuse their limited waiver
authority and allow scores of people who have traveled to or
are dual nationals of countries like Iraq and Syria flies in
the face of the reason and congressional intent. The Obama
administration, he says, ``is essentially rewriting the law by
blowing wide open a small window of discretion that Congress
gave it for law enforcement and national security reasons. In
fact, the categories of people that the Obama administration is
exempting from the law were expressly rejected by Congress.''
This administration takes these actions in clear violation
of the law and does so to favor a known state sponsor of
terrorism. And I would add, businesses in Iran, many of them
are controlled by the Revolutionary Guard Corps, which is a
designated terrorist organization.
So I thank our witnesses for their testimony today, and I
look forward to examining issues related to the impact of this
executive action on the Visa Waiver Program.
Mr. DeSantis. I now recognize the ranking member of the
Subcommittee on National Security, Mr. Lynch, for his opening
statement.
Mr. Lynch. Thank you very much, Mr. Chairman. I want to
thank you and also Chairman Meadows for their good work and
Ranking Member Connolly for holding this hearing to examine the
implementation of the Visa Waiver Program. And I would also
like to thank in advance our witnesses today for your
willingness to help the committee with this work.
In December of 2015, Congress enacted and President Obama
signed the Visa Waiver Program Improvement and Terrorist Travel
Prevention Act as part of the recent omnibus appropriations
bill. This bipartisan legislation to strengthen the Visa Waiver
Program became law in the wake of the devastating terrorist
attacks in Paris, France, in November of 2015, perpetrated by
several attackers who were citizens of so-called Visa Waiver
Program countries, including France and Belgium, and also
followed the tragic mass shooting in San Bernardino,
California, in December of 2015. That also evidenced the real
and continued threat of a terrorist attack committed on U.S.
soil.
The new act, which I voted for, generally provides that
even if you are a citizen of one of the 38 allied nations that
participated in the Visa Waiver Program, you are no longer
eligible for temporary visa-free entry to the United States if
you travel to Syria, Iraq, Sudan, or Iran since March 1, 2011.
Similarly, dual nationals of any of these four countries are
prohibited from Visa Waiver Program eligibility.
The act also recognizes that, in select cases, the
application of these new program restrictions could
intentionally run contrary to national security interests by,
for example, excluding U.N. personnel, inspectors with the
IAEA, or humanitarian relief workers who have visited one of
these countries of concern from the Visa Waiver Program.
In order to better ensure that such individuals are able to
do their jobs, the act provides that the Secretary of Homeland
Security may in some instances grant a waiver to a foreign
national ``if the Secretary determines that such a waiver is
consistent with the law enforcement or national security
interests of the United States.'' It also requires the
Secretary to submit to Congress an annual report on each
instance in which the Secretary exercises that waiver
authority.
Last month, the Department of Homeland Security explained
the limited circumstances under which the Secretary may
consider granting a national security waiver. In particular,
the agency underscored that such waivers ``will be granted only
on a case-by-case basis.'' The Department also noted that
waiver eligibility travelers may include representatives of
international and humanitarian organizations, as well as
journalists who travel to Iran, Iraq, Sudan, or Syria in
performance of their job duties. They may also include
individuals who travel to Iraq and Iran for legitimate
business-related purposes.
I strongly agree that we must conduct meaningful oversight
of the implementation of this national security waiver
authority. However, in analyzing the effectiveness of this
provision, we must be mindful that our shared interest in
national security does not exclude the goals of promoting
humanitarian assistance, accountability, and economic stability
in the four countries of concern. Quite the contrary, they can
go hand-in-hand.
Last month, Chairman Chaffetz authorized Representative
Steve Russell and myself to lead an oversight delegation to the
Zaatari refugee camp on the Jordanian/Syrian border and the
Oncunipar refugee camp in Kilis Province on the Turkish/Syrian
border. We met with representatives from several international
and humanitarian organizations, including the Office of the
United Nations High Commissioner on Refugees, the World Food
Program, and Save the Children, and local humanitarian and
relief health care groups. These officials repeatedly noted
that humanitarian aid does not only provide dignified living
for people in need it but also makes us all safer by de-
incentivizing desperate populations from making desperate
choices. This humanitarian aid keeps refugees near their home
country, albeit on the other side of the border.
Similarly, conflict reporting by journalists in places like
Aleppo, Syria, has proven critical to informing U.S. officials
and the American public about the security and humanitarian
facts on the ground. As noted by Professor Ellen Shearer, Co-
Director of the National Security Journalism Initiative at
Northwestern University, ``The cost of getting the truth could
be high, but the cost in not getting the full story is very
real, too.''
In Iraq, U.S.-led efforts to combat the Islamic State will
only be complicated if the country cannot conduct legitimate
business and dive deeper into the economic crisis and the
social unrest caused by falling oil prices.
And in Iran, international efforts to ensure compliance
with the robust nuclear inspection regime set forth in the Iran
nuclear agreement would be undermined if an Iranian economy
that is unable to refurbish a deteriorating domestic plane
fleet used by IAEA inspectors, the International Atomic Energy
Agency inspectors, to travel between inspection sites. And a
number of those inspectors have indicated that that is probably
the most dangerous thing they do in Iran is fly from city to
city on the Iran Air because of the terrible condition of their
air fleet. So we are going to have to consider that.
Again, now, I voted for tighter restrictions in the Visa
Waiver Program, given the evidence that the Islamic State has
adopted a tactic of feeding militant extremists into the stream
of legitimate refugees and the wider diaspora created by the
wars in Iraq and Syria. I do believe, though, that in affording
the Secretary of Department of Homeland Security flexibility
that he has been granted by statute, it should be prudently and
rarely exercised.
Mr. Chairman, I look forward to further discussing these
and other issues relating to the Visa Waiver Program with
today's witnesses, and I yield back the balance of my time. And
thank you for your indulgence.
Mr. DeSantis. I thank the gentleman.
The chair now recognizes the chairman of the Subcommittee
on Government Operations, Mr. Meadows, for his opening
statement.
Mr. Meadows. Thank you, Mr. Chairman, and thank you, Mr.
Lynch, for your accurate remarks. I certainly look forward to
working with both of you on this particular issue.
It seems that every time we turn around, on the televisions
we see unspeakable atrocities that are being committed by ISIS.
You know, it has come now into the bedrooms and homes of many
of us where we have to deal with this reality. The increased
presence of ISIS in countries like Iraq and Syria highlight the
concerns over the reports of thousands of citizens in Western
countries traveling to places like Iraq and Syria and then
training with these terrorist groups and then returning home.
Even late last year, obviously, the people of Paris saw
this practice manifest in a just horrific tragedy. Individuals
with dual citizenship traveled to Syria and trained with these
so-called fighters that fight against innocent civilians going
about their everyday life, but it is really not a fight. This
was an attack, an attack against fathers and mothers, daughters
and sons. And these monsters who carried out this attack took
advantage of rights granted to them as nationals of France and
nationals of Belgium.
In an effort to help prevent individuals from similarly
exploiting the advantages afforded to them by having a
citizenship of those countries covered by the Visa Waiver
Program, Congress, as Mr. Lynch put forth, passed a piece of
legislation late last year that would require those individuals
who travel to certain countries of concern, or who hold dual
citizenship with those countries, to go through a more rigorous
review before being admitted into the United States, a
commonsense approach.
But since the President has signed that bill into law, it
seems like the administration is starting to backpedal on some
of those changes to expand that narrow exception for national
security afforded to them by Congress. The administration's
disregard for the congressional intent is intolerable,
especially when we look at the action being done to appease a
country like Iran. It is troubling.
I understand that there are many people affected by
Congress's changes to the Visa Waiver Program that mean no harm
to the United States. It is very obvious. What is important to
understand is that being excluded from the Visa Waiver Program
does not keep these people from coming to the United States. It
just means that they have to apply for a visa like all other
people around the world that are not included in that program.
Somehow, we think that it is keeping them from coming to the
United States.
That being said, we need to make sure that our visa
screening process is effective, and I have been pressuring DHS
for months, including in a hearing in December, to report to
Congress on the number of individuals who have overstayed their
visas.
While DHS finally released a report about 3 weeks ago, the
report left much to be desired. For instance, the figure
included only a couple of subsections of admissions, leaving
incomplete the picture of visa overstays. DHS reports that only
1 percent of admissions overstayed their permissible period.
However, when you start to look at this, the administration
only counted the travelers each time they entered the country
as a unique admission. Now, what I am saying there is, thereby,
it lowers the overall numbers to suggest that we are doing a
better job than we really are.
That figure that was reported by DHS suggested that there
was some 500,000 foreign travelers who had overstayed their
visas and remained in the United States illegally. As of
January 4, that number had been brought down to 416,000 of
these who had not left the country. As I said, this number does
not give the full picture either. It does not include those who
enter by land or those who have entered for other reasons other
than business or pleasure such as students, guest workers,
exchange visitors. In fact, of the over 70 specific types of
nonimmigrant visas, DHS's report only covers 2, 2 out of 70.
This report is supposed to inform Congress. Not only is it
missing critical information, the DHS will not even provide
Congress with the background memos used to compile the report.
We have a DHS official here today, so I hope that hopefully
you can answer some of these questions for us and start to
illuminate both members of the majority and the minority. I
also hope that you can help us understand the significance of a
biometric exit system and actually putting that in so that we
can start to track this system and have proper reporting for
visa overstays because it is a critical function for our
national security.
And I can tell you that I imagine everyone in this room
agrees with this. I don't want to have an incident that happens
here that could have been prevented by implementing the proper
procedures to look at this. Far too often we look backwards. We
say only if this had happened or only if that had happened,
maybe this disaster could have been prevented. I know one thing
for sure. We must get it right. We must get it right right
away.
And I thank the chairman for his patience and his direction
and his leadership on this, and I yield back.
Mr. DeSantis. The gentleman yields back.
The chair now recognizes Mr. Connolly, the ranking member
of the Subcommittee on Government Operations, for his opening
statement.
Mr. Connelly. I thank the chair, and welcome to our
panelists.
Last December, in light of the tragedies of San Bernardino
and Paris, Congress came together and passed the Visa Waiver
Program Improvement and Terrorist Travel Prevention Act of
2015, passed as part of the omnibus spending bill. It will
enhance VWP's information-sharing requirements to better assess
travel's risk.
It also requires covered travelers to use an e-passport
containing technology that stores travel information, a digital
photograph, biographical information, and biometric
identifiers. Such passports also included security layers that
make it more difficult to alter or duplicate them compared to
other forms of travel identification.
The bill also tightens eligibility restrictions for VWP
participation but does not block international travel using the
normal visa process. It would prohibit participation in that
process, the VWP process, by anyone who has traveled to Syria,
Iraq, Iran, Sudan, and other designated areas of concern within
the past 5 years, and dual nationals of those countries.
It also empowers the Department of Homeland Security with
the authority to waive these restrictions to support ``the law
enforcement and national security interests of the United
States.'' The Department of Homeland Security recently
announced that it would implement those waivers on a limited
case-by-case basis, certain categories of individuals,
including those who have traveled to Iran or Iraq for
legitimate business, professional, and humanitarian purposes.
Of course, individuals who may fall into one of those
accepted categories are not automatically allowed to enter via
the program. They must undergo the same rigorous screening
process as any other traveler prior to receiving approval to
travel under that program.
Some of my colleagues, critics of the administration, claim
that the Department's implementation is contrary to
congressional intent and represents an overreach of executive
authority as the legislative language did not expressly provide
exceptions.
However, I believe the Department is taking a commonsense
approach to implementing the waiver authority we granted them,
and that it is not inconsistent with the requirements of the
law. In fact, some argue that permitting individuals from
waiver countries to travel to Iran or Iraq for legitimate
business, professional, and humanitarian purposes serves to
promote rather than undermine the law enforcement and national
security interests of our country.
There is concern that this waiver was provided in the
interest of reserving the JCPOA in a manner inconsistent with
the commitments the U.S. made in the deal. That is the nuclear
deal with the Iran. For one, the waiver specifies travel after
the date the agreement was signed. Additionally, the only
reason Iran is subjected to these reforms is its designation as
a state sponsor of terror. We were assured that Iran's support
for terrorism was firewalled--if one can make a verb out of
that--from the JCPOA negotiations, and for good reason, as we
do not want to re-litigate the nuclear issue every time we take
up one of the myriad challenges Iran poses to regional and U.S.
security.
In providing this waiver, the administration must answer
these challenges and make crystal clear to Congress that it was
not provided in the interest of addressing perceptions in
Tehran. The grounds for this waiver must rest solely on a
sincere interest to preserve the integrity of the Visa Waiver
Program and its ability to serve as an incentive for
implementing border security and surveillance best practices.
I certainly look forward, Mr. Chairman, to hearing from our
witnesses as to whether they believe that allowing, in limited
circumstances, Europeans who have traveled to Iran for
legitimate business to participate in the Visa Waiver Program
and whether that creates a security risk or actually enhances
national security.
I look forward to hearing from our witnesses, Mr. Chairman,
and I thank you for holding this hearing.
Mr. DeSantis. Thank you. I will hold the record open for 5
legislative days for any members who would like to submit a
written statement.
I will now recognize our panel of witnesses. I am pleased
to welcome the Honorable Gil Kerlikowske, Commissioner of
Customs and Border Protection at the U.S. Department of
Homeland Security; Ms. Hillary Batjer Johnson, Deputy
Coordinator for Homeland Security, Screening, and Designations
at the Bureau of Counterterrorism at the Department of State.
Ms. Johnson is accompanied by Mr. Edward Ramotowski, Deputy
Assistant Secretary for Consular Affairs at the U.S. Department
of State, whose expertise may be needed during the questioning.
Ms. Jessica Vaughan, Director of Policy Studies at the
Center for Immigration Studies; Mr. Emanuele Ottolenghi, Senior
Fellow at the Foundation for Defense of Democracies; and Mr.
Stephen Heifetz, partner at Steptoe and Johnson, LLP. Welcome
all.
Pursuant to committee rules, all witnesses will be sworn in
before they testified. We will also swear in Mr. Ramotowski. So
if you can please rise and raise your right hand.
[Witnesses sworn.]
Mr. DeSantis. Thank you. Please be seated.
All witnesses answered in the affirmative.
In order to allow time for discussion, please limit your
oral testimony to 5 minutes. Your entire written statement will
be made part of the record.
Now, my pleasure, Mr. Kerlikowske, you are up.
WITNESS STATEMENTS
STATEMENT OF GIL KERLIKOWSKE
Mr. Kerlikowske. Chairman DeSantis, Chairman Meadows,
Ranking Member Lynch and Ranking Member Connolly, and
distinguished members of the subcommittees, I returned on
Sunday morning from California where CBP had an integral role
in safeguarding the Super Bowl. I witnessed the aspects of
CBP's very broad and complex mission all in one place,
providing security, surveillance on the ground, surveillance
from the air, screening cargo and deliveries for weapons and
dangerous items.
Well, Customs and Border Protection has a critical role in
securing international travel against the threat of the
terrorists and their supporters, while facilitating lawful
travel and tourism. Every day, we process 1 million travelers.
And as you know, when boarding a U.S.-bound flight, most
foreign nationals must obtain a nonimmigrant visa issued by a
United States Embassy or consulate, or the traveler must apply
for a travel authorization through CBP's Electronic System for
Travel Authorization, or ESTA.
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 United
States. And over the past 15 months, CBP has worked with DHS 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.
And we have introduced additional ESTA 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,
Secretary Johnson announced further security measures for the
Visa Waiver Program countries, including increased traveler
data collection, analysis, and reporting, and require the use
of INTERPOL's Stolen and Lost Travel Document database and the
required use of electronic passports, which contain additional
security features.
And 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. And with some exceptions for official military and
government travel, 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 includes Iran and Sudan. It also prohibits VWP
travel for individuals who are dual nationals of one of these
countries and a VWP country.
CBP quickly began implementing some of the changes required
by the new law. For example, we revoked 17,000 ESTA travel
authorizations. We established, in conjunction with our
interagency partners, a terrorist travel prevention cell in our
National Targeting Center, and the cell will enhance the
Department's efforts to identify and prevent foreign
terrorists' fighter travel, and a subset of the cell's mission
will be to scrutinize individual waiver requests permitted by
the new law.
Additionally, CBP will add new fields to the ESTA
application by the end of this month that 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, DHS
will continue to work our Federal and international partners to
counter foreign fighter threats to the homeland. We'll continue
to strengthen our travel security programs and systems and
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 DeSantis, Chairman Meadows, Ranking Member Lynch,
Ranking Member Connolly, and members of the subcommittees,
thank you for the opportunity to testify. Let me clarify that I
came back before the Super Bowl. I did not stay for the Super
Bowl.
[Prepared statement of Mr. Kerlikowske follows:]
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Mr. DeSantis. Thank you. Ms. Johnson, you are up for 5
minutes.
STATEMENT OF HILLARY BATJER JOHNSON
Ms. Johnson. Thank you. Good afternoon, Chairman Meadows,
Chairman DeSantis, Ranking Member Connolly and Ranking Member
Lynch, and distinguished members of the committee. I did not go
to the Super Bowl either.
Thank you for this opportunity to testify today on
implementation of the Visa Waiver Program Improvement and
Terrorist Travel Prevention Act of 2015. It's a pleasure to be
here today with Commissioner Kerlikowske.
My written statement 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 a deputy coordinator
for Homeland Security in State's Counterterrorism Bureau, the
security of the homeland and the safety of our 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 securities 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, seaports,
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'd 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 enter under the VWP.
As the Commissioner has noted, citizens of VWP countries
apply to the United States via the ESTA, and CBP checks ESTA
forms against U.S. terrorist and criminal databases before
travelers are allowed to travel under the VWP. And that
information our partners provide us as part of the VWP is a
vital component of our terrorist and criminal databases.
The layered security continues beyond this step. All
travelers are screened by CBP's National Targeting Center
before they board an airplane and after they're admitted into
the U.S. And ESTAs are continuously reviewed and revoked
immediately if new intelligence comes to light.
Watch listing and screening and intelligence gathering are
some of our best tools for countering terrorist travel. These
tools are most effective when we're working in collaboration
with our VWP partners, and that's an important counterterrorism
partnership, the VWP.
The 38 countries that are part of the VWP include many of
our closest allies, and they're proud of their status. VWP
membership is so prized that many countries not in the VWP
complete program requirements in the hope of joining the
program.
I'd 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 law enforcement or
national security interests 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, as a general matter,
it is in the national security interests of the United States
to administer waivers on a case-by-case basis for certain types
of ESTA applicants. I want to stress again 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 outline these categories in which a waiver
might apply to provide guidance to citizens of VWP countries.
There's a lot of confusion about this law among some of our
closest allies and trading partners. We need to let them know
which of their citizens might receive a waiver and how that
process would work. We noted in our guidance that each ESTA
applicants would be considered on a case-by-case basis. In no
instance is travel guaranteed under the VWP if a person falls
into one of these identified categories.
I'd like to share quickly some examples of why we think
these narrowly tailored waivers are in our national security
interests. For instance, we rely on employees at 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 will 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, but without a waiver, representatives from the E.U.,
including E.U. parliamentarians, would be ineligible to travel
to the U.S. 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. And these
waivers would allow us to maintain and build our relationships
and cooperations with these institutions to work shared
counterterrorism goals.
Business representatives or NGO employees who have traveled
to Iraq to help with schools, roads, and hospitals would be
denied travel under VWP even though they're only doing work we
have encouraged to help stabilize and rebuild that country's
economy.
In Syria, the world relies on journalists facing great
danger to report human rights violations, allegations of
chemical weapon use, and brutality of that ongoing conflict
that we might otherwise not know about. Yet without waivers,
they, too, would be denied travel under the VWP.
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 traveler 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 direct our
resources to higher-risk threats.
As I've discussed, we believe there are significant
national security interests for the United States to utilize
its waiver authority, and we can do so without compromising the
safety of our fellow citizens at home and overseas and the
security of the traveling public.
Mr. Chairman, Ranking Member DeSantis, Ranking Member
Connelly, and Ranking Member Lynch and distinguished members of
the committee, thank you for your time. I look forward to your
questions.
[Prepared statement of Ms. Johnson follows:]
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Mr. DeSantis. Thank you.
The chair now recognizes Ms. Vaughan for 5 minutes.
STATEMENT OF JESSICA M. VAUGHAN
Ms. Vaughan. Thank you for the opportunity to testify
today.
Last year, Congress passed the first meaningful
improvements to the Visa Waiver Program in some time, an
acknowledgment of the elevated threat we face now from
terrorism, espionage, and the inappropriate transfer of
technology. These sensible and modest changes will allow for
more scrutiny of certain travelers coming from Visa Waiver
Program countries based on their dual nationality or their
travel history by requiring them to get a visa.
This is important because the visa application process is
not overly burdensome, but it does offer the opportunity for
much more review than is possible under the Visa Waiver Program
for several reasons because the visa process gives the
government the time and the opportunity to ask questions and to
ascertain more about the applicant's credibility and purpose
for travel. The ESTA on the other hand is filled out online and
people can submit it just hours before departure. The
opportunity is for other agencies to help review these
applications if needed, whether it's through the security
advisory opinion process or other consultation with experts at
post in which DHS, FBI, intelligence agencies, Treasury
officials, Department of Commerce, and others can review the
applications if the consular department feels it needs that
additional consultation.
The ink from the President's signature on the law was
barely dry when the Obama administration significantly
undermined these reforms by unilaterally offering waivers that
were not explicitly authorized in the law. This is a problem
not only because it is a flagrant abuse of executive authority
and a breach of the agreement with Congress, but because the
administration's plan will expose our nation to real threats.
One of the categories of travelers the administration has
carved out for waivers, dual nationals traveling to Iran and
Iraq for business purposes, is precisely the category of
travelers that needs to be scrutinized more closely because of
past cases of espionage and illegal technology transfer.
The risks inherent in the Visa Waiver Program are
compounded by the President's tendency to allow the admission
of increasing number of foreign visitors, to gloss over the
threats, to oversell his agency's ability to screen out risks,
and to suppress the enforcement of immigration laws in the
Interior.
I believe there were sound reasons to impose these
restrictions. The immigration systems of Europe and the United
States have already been exploited by terrorists with European
citizenship and other dual nationalities linked to terrorism
and other illicit activity that threatens national security.
Congressional leaders are rightfully angry about this move.
The law provided the executive branch with the authority to
issue waivers only for those dual nationals who were serving in
military or civilian government jobs, not for journalists, aid
workers, or business travelers necessarily.
One of my main concerns is that the Visa Waiver Program is
already a major national security vulnerability that needs to
be addressed. There are thousands of individuals who were
involved with or sympathetic to terror groups and countries
that sponsor terror who also hold passports of countries that
participate in the Visa Waiver Program who can travel to the
U.S. without undergoing the scrutiny of a visa interview.
Since 2014, there have been more than 100 foreign-born
individuals who've been arrested for involvement in a terror
operation after being admitted to the U.S. And DHS has yet to
disclose the manner of entry for most of them, but we do know
that terrorists have used the VWP to enter in the past.
My organization has identified more than 50 naturalized
U.S. citizens who have been charged with serious national
security-related offenses such as terrorism, spying, and theft
of sensitive information and technology. Many were already
associated with terror groups or foreign intelligence when they
naturalized. Eight were born in Iran, and their crimes included
exporting sensitive equipment, military equipment, satellite
technology, and so on. So, clearly, dual nationality is a vital
and frequently used tool for terror and espionage operations.
The number of Visa Waiver Program entries has been rising
significantly. In 2014, more than 20 million visitors were
admitted under that program, which is a 24 percent increase
since 2008, and that means many more people who need to be
vetted by our screening systems and by CBP inspectors.
We know that the Visa Waiver Program is frequently abused.
In fact, visa waiver overstays make up 29 percent of the total
number of overstays by visitors who were admitted under the
short-term B-1/B-2 category in 2015. The total number of Visa
Waiver Program overstays just in 2015 was more than 150,000,
and these overstayers, we also know, are not a high priority
for ICE. Only about 1 percent are ever investigated, and few
are deported.
The other main concern I have is that one of the categories
of travelers carved out for waivers is dual nationals traveling
to Iran and Iraq for business purposes, and that's a category
of travelers that present a significant national security risk
because Iran has a comprehensive, effective, and aggressive
intelligence program that expends substantial time and
resources targeting U.S. military equipment, plans, and
programs, as well as dual-use technology.
It's not just reasonable but urgent that our government
take the steps to address this vulnerability, and Congress has
come up with a tool that, if anything, should be expanded, not
scaled back.
Thank you.
[Prepared statement of Ms. Vaughan follows:]
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Mr. DeSantis. Thank you.
The chair now recognizes Mr. Ottolenghi for 5 minutes.
STATEMENT OF EMANUELE OTTOLENGHI
Mr. Ottolenghi. Chairmen DeSantis and Meadows, Ranking
Members Lynch and Connolly, members of the committee, on behalf
of the Foundation for Defense of Democracies, thank you for the
opportunity to testify.
Entry into the United States under the Visa Waiver Program
is a privilege, not a right, bestowed on a select group of
countries. Today, we discuss whether it is reasonable to
require greater due diligence for a select group of visitors
from visa waiver countries on the basis that they are dual
nationals of Iran or a handful of other countries.
Greater due diligence is, in my view, a sound and not
unduly burdensome measure. Dual nationals can continue to
travel to the United States provided they first apply in person
and receive a visa. Many of us in this room have had to apply
for visas to travel to other countries. While an annoyance, it
is not an overly onerous exercise.
In the case of Iranian dual nationals, this added layer of
due diligence is critical to the national security of the
United States. Tehran has long relied on dual nationals to
pursue illegal activities. Clearly, not every dual national is
a government agent, but virtually all agents of the Iranian
regime who are involved in conspiracies to commit acts of
terrorism or nuclear and ballistic procurement were dual
passport holders.
With effective enforcement, the visa waiver exception will
make it more difficult for them to engage in criminal
activities on American soil. Tehran relies on dual nationals
because a non-Iranian passport generally draws less scrutiny at
border crossings. It also makes it easier to open foreign bank
accounts and corporate companies and conduct financial
operations overseas.
My written testimony provides five recent examples of dual
nationals' critical role in Iran's terror plots. Here are
examples of cases in which Tehran relied on dual nationals for
other illicit activities and to obscure the Iranian ownership
of companies.
Slide 2, please.
[Slide.]
Mr. Ottolenghi. MCS Systems was a German gas-cylinder
factory owned by EIKO, the supreme leader's holding company,
which the U.S. Treasury sanctioned in 2013. EIKO obfuscated its
ownership by transferring it to two Iranian-Canadian dual
nationals who then reported directly to EIKO, the goal, to
attempt and evade sanctions.
In 2010, Treasury sanctioned IFIC Holding, the German-based
subsidiary of Iran's Foreign Investment Company. Commercial
extracts for SWIFIC Holding, its Swiss branch, show its owners
were Canadian and a German dual national. The goal again, avoid
sanctions.
Iran's airline Mahan Air provides more evidence of the role
of dual nationals. Treasury designated Mahan Air in 2011 ``for
providing financial material and technological support to the
Quds Force, including transporting personnel and weapons to
Syria's regime. Mahan relies on dual nationals to run its front
companies in Europe while continuing to facilitate ethnic
cleansing and other crimes against humanity in Syria.
In most waiver countries, obtaining citizenship is a
lengthy process with stringent requirements. Some countries,
however, are making their citizenship readily available through
investment. Iranian nationals, among others, are exploiting
this. In 2014, the U.S. Treasury issued an advisory that
certain individuals were abusing the Citizenship-by-Investment
program of St. Kitts and Nevis to obtain passports for the
purpose of engaging in illicit financial activity. The advisory
made particular reference to Iranian nationals.
Three Iranian businessmen with quickly obtained St. Kitts
citizenship built a complex financial sanctions evasion network
spanning the globe, including the United States. Despite
Treasury sanctions, they moved across borders easily and
reconstituted sanctioned companies under new names thanks to
their St. Kitts passport, and for one of them, a Canadian
permanent residency.
This is not an isolated case. New programs from visa waiver
countries are now available to wealthy investors, including
Iranians in search for a second passport. Such programs may
become a gateway to a visa-free entry into the United States
for Iranian procurement agents. The lifting of sanctions
against Iran may actually increase the number of regime agents
trying to enter the U.S.
The steps Congress now takes must ensure that actors
involved in facilitating proliferation and other illicit
activities abroad do not benefit from free access to the United
States. The United States should explain to all visa waiver
countries offering or considering citizenship and permanent
residency by investment that the due diligence and stringency
of the requirements of their programs may affect their status.
Their programs should not become a shortcut to entering the
United States.
The suspension of the Visa Waiver Program for dual
nationals of Iran is the direct result of the regime's close
association with terrorism and other illicit activities. The
dangerous exploitation of foreign passports for illicit
purposes justifies the inconvenience posed to the relatively
few who will now have to obtain a visa in person. The singling
out of Iranian dual nationals is thus not only appropriate but
should be a vital component of homeland security policy.
My written testimony provides additional recommendations.
Thank you for the opportunity to testify, and I look forward to
your questions.
[Prepared statement of Mr. Ottolenghi follows:]
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Mr. DeSantis. Thank you.
The chair now recognizes Mr. Heifetz for 5 minutes.
STATEMENT OF STEPHEN HEIFETZ
Mr. Heifetz. Thank you, Chairman DeSantis, Ranking Member
Lynch, Chairman Meadows, and Ranking Member Connolly. Thank you
to all of the distinguished members of the Subcommittees on
National Security and on Government Operations. I appreciate
the opportunity to participate in this hearing about the Visa
Waiver Program.
My name is Stephen Heifetz. I'm a partner at Steptoe and
Johnson, an international law firm. And prior to joining
Steptoe, I served from 2006 to 2010 in several positions at the
Department of Homeland Security, including as deputy assistant
secretary for policy development, where I had oversight
responsibility for the VWP.
Under the VWP, DHS waives the B non-immigrant visa
requirement for aliens traveling from 38 approved countries,
all U.S. allies, to permit stays of up to 90 days for business
or tourism. The effect of the waiver is that the standard visa
interview by a U.S. consular officer, which generally requires
the traveler to go to a consular office in person, is not
required. This does not mean, however, that DHS waives security
requirements for these travelers. In fact, under the VWP, DHS
mandates additional more stringent security requirements for
both the individual traveler and his or her home country.
The 38 U.S. allies that are VWP members must meet high
security standards to enter and maintain membership in the VWP,
and substantial checks are conducted on every traveler. The
result is a system that provides as much security against
terrorist or criminal travelers as the visa system.
Nevertheless, many in the media and elsewhere have labored
under the misapprehension that security standards have been
looser for VWP travelers than for those traveling with a visa
and that this poses a threat to U.S. national security. At
least since reforms implemented about a decade ago, that
perception has been inaccurate. Security experts in both the
Bush and Obama administrations have lauded the VWP as a good
security program. But, like any successful security program,
the VWP has continued to be closely reviewed over the years,
undergoing further reform as new threats are perceived.
The most recent VWP statutory reforms were enacted as part
of the 2016 Consolidated Appropriations Act in December 2015.
Among other things, the new law generally precludes travel
under the VWP for dual nationals of Iran, Iraq, Syria, and
Sudan, and further, the new law generally precludes travel
under the VWP for those who have traveled to these countries.
There are, however, exceptions for those who travel to
perform military service or other official duties of a VWP
member country. In addition, the new law provides that the DHS
Secretary may, with respect to any particular traveler, waive
the prohibitions with regard to Iran, Iraq, Syria, and Sudan if
doing so is in the national security interests of the United
States.
Such a waiver would allow VWP travel to the U.S. by a
citizen of a VWP member country notwithstanding dual
nationality or travel involving the four countries of concern.
For example, a Japanese businessperson who travels to Iraq for
business or an Australian doctor who provides humanitarian aid
in Syria generally would be ineligible for VWP travel under the
new law, but that ineligibility can be waived by the DHS
Secretary.
This national security waiver authority is important.
Here's one illustration why. The United States and other world
powers recently signed a momentous deal with Iran that
addresses Iran's nuclear weapons program. Under this deal, the
Joint Comprehensive Plan of Action, JCPOA, European companies
now will have regular business dealings with Iran. It's common
and will become ever more common for a European businessperson
to travel to Iran to conduct legitimate business. But if that
European businessperson's travel will preclude further travel
to the U.S. under the Visa Waiver Program, that might deter
European business dealings with Iran. If you're a Londoner or
Parisian sitting in London or Paris and considering traveling
to Iran to scout a business deal, you might reconsider because
of the potential loss of VWP privileges.
As part of the JCPOA, though, the U.S. committed to refrain
from creating new types of sanctions on Iran. More
specifically, the U.S. agreed to refrain from, quoting from the
JCPOA text, ``imposing exceptional or discriminatory regulatory
and procedural requirements in lieu of the sanctions and
restrictive measures covered by the JCPOA.''
Some have argued that this commitment necessitates U.S.
waivers to allow legitimate business travel to Iran without the
loss of VWP privileges. Even if one thinks the JCPOA was a bad
deal, the administration fairly can claim that it is in the
national security interest of the United States to ensure JCPOA
compliance by Iran. And ensuring compliance is made much more
difficult if Iran can allege that the U.S. has breached its
obligations by creating obstacles to Iranian travel. That is
one reason the administration should be granted deference in
determining how to utilize the waiver authority under the new
VWP law.
And there are other reasons. There is a great need for
humanitarian intervention in some of the poor countries of
concern, Syria and Iraq in particular. Without the exercise of
waivers, the loss of VWP privileges may deter needed
humanitarian travel to these countries. The Australian doctor
who wants to offer medical services in Syria may reconsider if
doing so will cause a loss of VWP privileges. Such thinking
could, ironically, have adverse effects on U.S. security.
More fundamentally, waivers that allow travel under the VWP
should not cause undue concerns because the VWP fundamentally
is a strong security program. I've alluded to that previously
and discussed it in more detail in my formal written testimony.
You have other witnesses today that can speak to the
operational security of the VWP so I'll close my verbal
testimony and would be happy to address questions.
[Prepared statement of Mr. Heifetz follows:]
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Mr. DeSantis. Thank you. The chair now recognizes himself
for 5 minutes.
Ms. Johnson, as a general matter, requiring a foreign
national traveling to the United States to obtain a visa, how
does that damage national security?
Ms. Johnson. Thank you, sir. As I mentioned in my remarks,
the VWP is a very important and significant counterterrorism
tool. The security requirements under the VWP ----
Mr. DeSantis. That is not my question. You are saying some
people may be ineligible for the VWP, so my question is, okay,
that means they would have to get a visa. So the requirement to
get a visa, how does that damage national security?
Ms. Johnson. So citizens of those VWP countries are very
are suddenly treated as a heightened security risk. So what
we've heard from our European colleagues in particular just
even yesterday ----
Mr. DeSantis. Well, wait--okay, yes, but why--I mean, you
have some of these people in like Brussels and some of these
jihadist-infested areas. I mean, why would we not want to treat
them as a heightened security?
Ms. Johnson. Well, again, I mean ----
Mr. DeSantis. They are a heightened security risk, aren't
they?
Ms. Johnson. Well, these waivers are again very limited and
very narrowly focused and would be done on a case-by-case
basis. And again, of those categories of travelers we were
looking at, it's not somebody who would just go to Syria to go
visit perhaps and go attend a terrorist training camp. We're
looking at, again, very limited and very focused waiver
categories that's permissible under the law.
Mr. DeSantis. Well, I think that the testimony alluded to--
so under the administration's action with respect to the visa
waiver changes that were enacted by Congress, they would allow
somebody who is a national of, say, Iran and a European country
who qualified under Visa Waiver Program. If that Iranian
national is traveling back to Iran to do business, even though
the businesses may have connections with the Revolutionary
Guard Corps, they would quality under the business exemption,
correct?
Ms. Johnson. No, that's not correct, sir.
Mr. DeSantis. Why not?
Ms. Johnson. So, again, these are limited case by case.
They would be focused on being reviewed. And again, these
individuals are going to be screened against all of our
databases, again, with information provided by the VWP
countries.
Mr. DeSantis. Well, but I think that is the issue is that
the reason why you want someone to obtain a visa, I mean, if we
are confident that everyone is a threat is in the database,
then you are right, there are certain things that could catch
him at an airport. But the whole idea is, you know, you have
someone like Tashfeen Malik. You know, she didn't pop on those
databases. We were hoping that that visa process that she went
through would have ferreted her out and would not have allowed
her entry into the United States.
And so let me just return just as a general--because I
don't think I got a clear answer. You know, Israel, non-visa
waiver country, Azerbaijan, Shiite Muslim ally of ours. Iran,
they don't like that Shiite Muslim government. You know, they
are not on the Visa Waiver Program. So how does it damage
national security to require these travelers from those areas
to get a visa?
Ms. Johnson. I'm not sure I understand the linkage with
Israel and Azerbaijan.
Mr. DeSantis. Just there are different countries that we
are allies with where their citizens have to get a visa in
order to come here that are not under the Visa Waiver ----
Ms. Johnson. I understand.
Mr. DeSantis.--Program. So my question is is why not err on
the side of caution? And if you require someone to get a visa,
how does that fact damage our national security?
Ms. Johnson. So again, these visa waiver partner countries,
their citizens are being treated as a heightened security
concern and we're looking at not damage--we're leveraging the
program to get additional information-sharing requirements. We
go and interview their--we, you know, examine their seaports,
their land borders, their airports. We're getting more out of
the Visa Waiver Program as a counterterrorism tool than perhaps
what we would be doing with a non-VWP partner.
So again, I think that we're looking at the fact that we're
treating these individuals as heightened security risks and
we're utilizing this waiver ----
Mr. DeSantis. Okay. So ----
Ms. Johnson.--to look at a narrow group ----
Mr. DeSantis. But I ----
Ms. Johnson. And those countries may not cooperate with us
as a counterterrorism matter if there's ----
Mr. DeSantis. Which countries ----
Ms. Johnson.--a consideration ----
Mr. DeSantis.--have indicated that?
Ms. Johnson. Well, we've had a number who have been very
concerned. Again, yesterday ----
Mr. DeSantis. Which ones?
Ms. Johnson. We've met--I've met with the Swiss, I've met
with the French, I've met with the E.U., I've met with Japan.
They've all expressed concerns. And as Mr. Steifletz--or
Heifetz has mentioned that they may actually choose not to come
to the United States because they're concerned--or not got to
Iran or they might not go to Iraq, participate in a
humanitarian mission because they're concerned about this, that
they're being treated--their citizens are being treated as a
heightened security risk.
Our VWP program is going under--every traveler under the
VWP program is going under heightened security screening just
like they will with visas. So I take issue that the fact that
they don't get an SAO review, they do. They don't get an
automatic ESTA just because they've applied and answered
questions. Every one of those individuals are completely
scrubbed against our screening databases before being issued an
ESTA, and then those ESTAs are reviewed continually.
Mr. DeSantis. So, yes, they are traveling to Iran, some of
them are doing business with Iran. Iran is the number one state
sponsor of terrorism in the world. The State Department
considers the government of Iran to be a state sponsor of
terrorism. The Revolutionary Guard Corps is a designated
terrorist group.
So yes, they would be treated differently, but aren't there
legitimate reasons why they should be treated differently given
the circumstances? I mean, if a Japanese citizen is going to
Taiwan to do business, you know, the idea that that was going
to affect the visa waiver status, I mean, I get that, but you
are traveling to Iran, given the circumstances, how is it
unreasonable to think that that would be something that we
would be concerned about?
Ms. Johnson. Again, individuals from the VWP countries
going and conducting legitimate business in Iran that's
permissible under the JCPOA shouldn't be penalized or shouldn't
be considered a heightened risk. Of course, again, we would do
all of the routine screening on each individual ----
Mr. DeSantis. So ----
Ms. Johnson.--to ensure that they are not a threat to the
United States.
Mr. DeSantis. So you are worried about penalizing someone
going to Iran to do business even though that could potentially
expose the American people to more danger? And I get like the
visa waiver--you know, the sharing of intelligence. I think
that is good. But the bottom line is it is easier to come here
if you qualify for a visa waiver. And if you are not in the
database, you know, I don't think that you are going to be able
to be found out.
My time is up. I am going to recognize Mr. Lynch for 5
minutes.
Mr. Lynch. Thank you, Mr. Chairman.
Let's stay on that, Ms. Johnson. So a number of my
colleagues have expressed concern that waivers could be granted
to individuals for reasons that might run contrary to our
national security interests as required under the law. What is
the countermeasure against that within the system? How do we
make sure--and, look, I am sort of the devil's advocate here. I
spent a lot of--a lot of members on this committee spent a lot
of time in the Middle East so we--but just came back again from
visiting all these refugee camps, been to Sudan so I know--and
that is on the list here, too, certainly understand all the--
the huge number of NGOs that we have working on these countries
on behalf of the American people, which the goal is to keep the
refugees from flooding into Europe and elsewhere, this huge
diaspora that has been created because of the war in Iraq and
Syria. They are trying to keep them stable and in safe
conditions on the border.
So as a result, we have got a lot of people--USCIS does
great work on our behalf. We have got a bunch of different--the
World Food Program did great work. But we do have a lot of
people that end up especially in Iraq. We have got tons of
contractors that are going in and out of Iraq on a regular
basis. How do we create a countermeasure within--and, Mr.
Heifetz, you might want to join in on this because your
testimony speaks to this issue as well. How do we rest assured
that someone is not breaching the Visa Waiver Program with
nefarious intent, that someone gets a waiver from the Secretary
of DHS and, you know, does what, you know, these folks in Paris
did or San Bernardino did?
Ms. Johnson. Yes, so again, the Visa Waiver Program
requires much more strict security standards, so all of the
countries have to meet those strict security standards.
Countries that don't issue--don't have to have to have their
citizens come get visas do not necessarily have those--I mean,
they certainly don't have those standards that they're required
to meet. So that's on the front end. And then we're inspecting
those on a regular basis.
It's important to stress that the information-sharing that
we get from them, the known and suspected terrorist information
we receive from those VWP countries again enhances our
screening databases. So we're getting more information through
the VWP partnership than we would any other country
relationship that we have outside the VWP.
Then we have the additional layered security, so an
individual who might be a humanitarian worker applying for an
ESTA because they want to utilize this waiver, it should be
important to note that they're not applying for the waiver.
They're applying for the ESTA. So the ESTA then has more
stringent questions. I would be frank in, you know, that we
have only a couple minutes in a visa window. You're asking a
number of questions through the ESTA process, which we then
look--work really hard to verify. We also screen against all of
our databases, both terrorism and criminal. And then for all
travelers, whether they're visa or--traveling under the visa or
the VWP, we have layered security portions again to ensure
we're not entering--having people enter the United States that
should do us harm.
Mr. Lynch. Okay. So in the past--and I want to ask you
about the lists--we had a situation where there were some
workers, I believe about 72 workers that went through DHS
screening and were able to obtain security badges to work in
secure areas of our airports, yet they were on the TIDE list.
They were on one of our terrorist lists. Has that been
straightened out? Because earlier on, DHS and people weren't
sharing lists, and that was the root cause of that problem.
Now, I have been reassured in other forums that that
problem has been addressed and the lists are being shared so
that is not going to happen anymore. Is that your
understanding, Mr. Kerlikowske?
Mr. Kerlikowske. So TSA runs that part of the program and
Admiral Neffenger. And I know that they have just gone back
under his direction and completely rescreened all of those
individuals against all of these different databases. They've
rescreened all of these individuals as a result of that.
There's another group, of course, that works on the ports and
the cargo crane and operators of other equipment. That is run
through the United States Coast Guard, and as I understand it,
they are also in that process.
But within DHS and our partner government agencies under
the--especially under the National Targeting Center, I would
tell you that there is no database that cannot be shared and is
not run against others.
Mr. Lynch. Okay. I see my time is expired. I will yield
back. Thank you.
Mr. DeSantis. The gentleman yields back.
The chair now recognizes the gentleman from North Carolina,
Mr. Meadows, for 5 minutes.
Mr. Meadows. Ms. Johnson, you say you are going to do these
waivers on a case-by-case basis, so I guess you have got a
criteria set for how they get a waiver or not?
Ms. Johnson. I think that would be more of a question for
DHS in the process of how those waivers are administered.
Mr. Meadows. So is there a criteria?
Mr. Kerlikowske. There's a system that--by February 23 that
will have all of these additional questions. For instance, if
you were doing legitimate business in Iran, you would have to,
of course, had an Iranian business passport with those numbers.
So ----
Mr. Meadows. What part of the law, I guess ----
Mr. Kerlikowske.--there'd be a whole ----
Mr. Meadows.--talked about business purposes having a
waiver?
Mr. Kerlikowske. So the protocol would be that if you were
claiming that you wished under--and, by the way, no waiver has
been granted and no waiver ----
Mr. Meadows. Right, but it is a national security or law
enforcement waiver. It was fairly clear, wasn't it, national
security or law enforcement waiver, isn't that right, Ms.
Johnson?
Mr. Kerlikowske. It is correct.
Mr. Meadows. Okay. So how can you quantify that a business
purpose is a national security purpose?
Mr. Kerlikowske. So I think there are ----
Mr. Meadows. I am a business guy, so that means I am a
national security risk.
Mr. Kerlikowske. Or a national security benefit.
Mr. Meadows. Because what I am hearing--and let me tell you
what troubles me. It sounds like we have created a jobs program
for Iran that we are concerned about their business activity at
the expense of the national security of all freedom-loving
Americans. Have we done that? Because that is what Mr. Heifetz
indicated. It is important for their economy. So is that what
we have done, Ms. Johnson? We have created a jobs program?
Ms. Johnson. No, sir. This ----
Mr. Meadows. Then why do we give an exception according to
DHS--I guess the exception is for legitimate business purposes?
And it is not just in Iran. It is in Iraq, and they are not
part of the agreement in terms of the JCPOA. So why would we
include Iraq and Syria and Sudan if it is not trying to help
them get investors from Europe?
Mr. Kerlikowske. Well, under the business it is only Iraq
and Iran, and we certainly want to see Iraq's economy do ----
Mr. Meadows. So it is a jobs program?
Mr. Kerlikowske. Well, we certainly want to see Iraq's
economy do better so that they can support their own defense --
--
Mr. Meadows. But I can tell you that was nowhere in the
deliberations between the minority or the majority when we were
talking about this. It had nothing to do with business
purposes. So how does the administration start to interpret
this law as somehow being a jobs program? Ms. Johnson?
Ms. Johnson. Again, it's not a jobs program. It's not
about--it's not about Iran. It's about our national security.
And I work in the Counterterrorism Bureau at the State
Department, and so I'm very focused on the fact that the
protection of the homeland--which the entire State Department
is focused on--is one of our major priorities.
Mr. Meadows. So wouldn't allowing more business travelers
who travel from Belgium or France going to Iran potentially
create a greater national security threat than if they never
traveled there at all?
Ms. Johnson. I don't think ----
Mr. Meadows. I'm not talking about the Visa Waiver Program
because I know you have been defaulting that. Could it not
potentially create a greater national security threat?
Ms. Johnson. I don't see the connection in the sense that
these are--under the JCPOA, these countries can ----
Mr. Meadows. No. One of them is. Not all those countries
are under that. Am I confused? Or are they all under that? I
thought only a few of those were, like one.
Ms. Johnson. The program--the VWP partnership, again, for
us with our partners under the VWP program ----
Mr. Meadows. That is different ----
Ms. Johnson.--they can go ----
Mr. Meadows. That is different than what you just said,
though. I understand. So if the VWP program is all great, why
don't we expand it to all the countries if it actually
increases our national security? Why don't we increase it to
Israel?
Ms. Johnson. I would think that, you know, they're--again
----
Mr. Meadows. Aren't they an ally?
Ms. Johnson.--for those countries that want to be part ----
Mr. Meadows. They are a closer ally than Iran, aren't they?
Ms. Johnson. Well, there's requirements to get into the
program, a number of factors ----
Mr. Meadows. But Iran hasn't met those requirements, have
they?
Ms. Johnson. Well, it's--visas ----
Mr. Meadows. But they are ----
Ms. Johnson.--it's not about Iran.
Mr. Meadows. But they are enjoying the benefit. Let me go
on. I got a few minutes left.
For DHS, the report that you sent only had 2 of 70 types of
visas. Is there any reason why we excluded the other 68 types
on that report?
Mr. Kerlikowske. So we were given this mission by--the
entry-exit mission by Congress in 2013.
Mr. Meadows. Oh, no, no, no, no, no, no. There is a GAO
report. You were given the mission back in the 1990s.
Mr. Kerlikowske. I'm sorry. I'm speaking as the
commissioner of Customs and Border Protection.
Mr. Meadows. Okay. Your agency?
Mr. Kerlikowske. Right. We were given that mission in 2013.
And as you know, there had not been a visa waiver overstay
report for many, many, many years.
Mr. Meadows. Nineteen ninety-four.
Mr. Kerlikowske. Right, until last year. It was very clear
that there was a lot of ----
Mr. Meadows. But there hasn't still been one. Let's be
clear about that. We have had a partial report.
Mr. Kerlikowske. I'll agree that the--certainly a partial
report. It is certainly a step ahead and a step better than
what had ever been issued before under many administrations.
Mr. Meadows. Well, that is true because it hadn't been
issued in 20 years, so I mean something is always better than
nothing. I guess my--when are we going to get the full report?
Mr. Kerlikowske. So the full report and the number of
things--and we'd be happy to spend some time with you or your
staff briefing you about all the things that DHS and Customs
and Border Protection is doing to try to increase the quality
of the data. You know that an overstay--if you leave the
country one day after your visa expired, you're considered an
overstay even though you have left the country and ----
Mr. Meadows. Yes, but that is not the numbers we are
talking about.
Mr. Kerlikowske. Okay.
Mr. Meadows. Let's don't give a false premise here ----
Mr. Kerlikowske. Okay.
Mr. Meadows.--and if the chair will indulge this last
clarifying question. We have reason to believe that the number
of overstays, if you include all the categories, is closer to
3/4 of a million versus the 500,000 that has been indicated.
Would you agree with that ----
Mr. Kerlikowske. I ----
Mr. Meadows.--estimate? Have you seen any estimate?
Mr. Kerlikowske. I don't--no, I have not.
Mr. Meadows. All right. I yield back.
Mr. DeSantis. The gentleman yields back.
The chair now recognizes the gentleman from Virginia, Mr.
Connolly, for 5 minutes.
Mr. Connolly. Thank you so much.
Just for the record, Mr. Kerlikowske, Ms. Johnson, you
aren't in some secret conspiracy to allow terrorists to come
into the United States, are you?
Mr. Kerlikowske. No, sir.
Ms. Johnson. No, sir.
Mr. Connolly. And you are both under oath.
Mr. Kerlikowske. Correct.
Ms. Johnson. Yes.
Mr. Connolly. Oh, good. Thank God. Okay. I just want to
make sure because sometime in listening to some of the
criticism, one would draw perhaps a strange conclusion.
Mr. Heifetz, were you advocating for a jobs program through
the use of this program in Iran?
Mr. Heifetz. No, I was not.
Mr. Connolly. What were you advocating or digressing about?
Mr. Heifetz. Ensuring--that was suggesting that the
administration needs deference in the exercise of the national
security exemption, among other things, to ensure that all
sides to the JCPOA are compliant.
Mr. Connolly. Might there be unintended consequences with
the law we passed in December? Could there be, you know, people
caught up in it that we didn't intend to--or presumably didn't
intend to be caught up in it?
Mr. Heifetz. Yes.
Mr. Connolly. Could an IAEA inspector, for example,
critical to validating compliance with the JCPOA--that is to
say the nuclear agreement with Iran--could they be caught up in
the net unwittingly?
Mr. Heifetz. Yes.
Mr. Connolly. So we might want to make an exception there?
Mr. Heifetz. For sure.
Mr. Connolly. Mr. Lynch talked about going to refugee
camps. So, for example, Medecins Sans Frontieres or Doctors
Without Borders or U.N. officials who are doing humanitarian
work, certainly something we would laud, we might want to give
due deference to the administration in making sure they are not
unwittingly caught up in this law and prevented from coming
into the United States through the waiver program? Would that
be a fair statement?
Mr. Heifetz. That seems sensible.
Mr. Connolly. Ms. Johnson, is that of concern to the State
Department? Are there some unintended consequences from a law
we passed that you are trying to address through
implementation, as well as Mr. Kerlikowske at DHS?
Ms. Johnson. Yes. Again, with our foreign partners who feel
that those individuals are being considered a heightened
security risk, yes.
Mr. Connolly. Our foreign partners? That is to say they are
concerned about this?
Ms. Johnson. Yes. And we're ----
Mr. Connolly. So there are foreign policy relations that
could also be at risk because we have maybe passed a law with
good intent and out of deep concern to protect the country, but
there may be some unforeseen aspects of that law, consequence
of that law that could affect our partners, our allies, and we
need to address that. Otherwise, we are needlessly alienating
friends and partners we need in other endeavors. Would that be
a fair statement?
Ms. Johnson. Yes, and for the national security of the
United States. We rely on those partners to help protect the
U.S. homeland.
Mr. Connolly. Right. Are there any such partners who have
publicly called for us to make adjustments because of those
concerns?
Ms. Johnson. I would have to get back to you, but I know
the E.U. has themselves, I believe, sent a letter to the
Speaker of the House.
Mr. Connolly. Okay. So it is not an idle speculation. We
actually have a record of concern by Europe, not a trivial
partner or ally. Okay.
The issue of dual nationals--and I know it has been
addressed--but is there another side, either Mr. Kerlikowske or
Ms. Johnson, to the debate on dual nationality? Because I can
tell you my district, there are certain ethnic groups who are
apoplectic about the application of this law because they feel
they are unwitting victims and they are not terrorists, though
they may be of a certain national background that would fall
under the penumbra of this law.
Is there some rationale--and I invite you, too, Mr.
Heifetz. Is there some rationale for why we might want to make
exception or dual nationals?
Ms. Johnson. So we're reviewing that internally right now
in consultation working closely with the Department of Homeland
Security. I do know the Europeans have also expressively very
concerned about that, feeling that the law was discriminatory.
And I think--and CBP can--the commission can confirm. I think
some of the biggest dual national populations come out of
Britain, Australia, some of our key allies.
Mr. Kerlikowske. We implemented the--that particular facet
of the law almost immediately by canceling 17,000 dual
nationals that we had information on, and we've also--any
application that has come in since that also shows dual
nationality has been denied. And of course our default position
on all of this, whether it's with a potential waiver
application or not, is that if there is any derogatory
information, any concern or any--or anything that would violate
the law that Congress passed and the President signed, the
default position would be to ----
Mr. Connolly. Deny?
Mr. Kerlikowske.--deny them and send them ----
Mr. Connolly. I think that is really important. My time is
up and I thank the chair, but the default--when in doubt, we
don't do it. We don't put the United States at risk. Okay.
Thank you very much. Thank you, Mr. Chairman.
Mr. DeSantis. The chair now recognizes the gentleman from
Oklahoma, Mr. Russell, for 5 minutes.
Mr. Russell. Thank you, Mr. Chairman. And thank you, all of
you, for being here today.
The difficulty that obviously a lot of us face on all sides
of the immigration issue is not conflating refugee resettlement
with visa waiver, with border security, with the larger
immigration issue. I think many times we tend to get all of
that confused.
However, here, we are talking about specifically a
vulnerability second only to the open border that we have and
ways that people could infiltrate. The Visa Waiver Program
constitutes probably the greatest threat for infiltration if
you were trying to enter the United States to do nefarious
activities. And a simple yes or no, would you disagree with
that statement, Mr. Kerlikowske?
Mr. Kerlikowske. I would not agree with it, no.
Mr. Russell. Ms. Johnson?
Ms. Johnson. I would not agree as well.
Mr. Russell. Ms. Vaughan?
Ms. Vaughan. Yes, I would agree with that.
Mr. Russell. Mr. Ottolenghi?
Mr. Ottolenghi. So would I.
Mr. Russell. Mr. Heifetz?
Mr. Heifetz. I disagree.
Mr. Russell. Okay. And see, therein lies the problem
because even in the refugee camps that we visited, even as we
have traveled into some very dangerous places to look at a lot
of different things, even they will build up their border so
that we have a controlled entry. Now, visa waivers, we have
control, and I hear cited here today that it is the ESTA that
is far more stringent and is far more thorough, and therefore,
we should have some reassurance.
Ms. Johnson, how long is the ESTA legitimate for?
Ms. Johnson. I believe it's 2 years. It's good for 3 and it
can go down to 1.
Mr. Russell. So 2 to 3 years. So do you think that maybe
someone could be in a different viewpoint in terms of nefarious
activity over a 2-year period?
Ms. Johnson. Well, just like our visas, the ESTAs are
recurrently vetted so they're--it's not a static moment in
time. So just because you're issued an ESTA does not mean we
don't continually look at you as ----
Mr. Russell. Well, I understand that, but unless the
information is volunteered such as the change of address or
some other nature, the ESTA is good for 2 years. And, you know,
whether or not I am coming here to visit Disneyland or coming
here to commit an act of terror, we don't know. And see, here
is part of the problem now. I am not conflating the refugee
resettlement and some of those--look, we need to be a nation
that welcomes immigrants. I just want to be on the record for
that.
However, what we are talking about here is a vulnerability
to infiltration. And as someone who defended my country in
uniform for more than two decades of my life, living among many
of the places that we are talking about, by the way, which have
very good people, we are vulnerable.
And, Mr. Heifetz, let me see if I am correct here. You say,
as part of the JCPOA, though, the United States committed to
refrain from creating new types of sanctions on Iran. More
specifically, the U.S. agreed to refrain from ``imposing
exceptional or discriminatory regulatory and procedural
requirements in lieu of the sanctions and restrictive measures
cover by the JCPOA.''
So am I hearing you correctly that modifications to the
visa waiver should be avoided because it might curtail Iranian
business? Yes or no?
Mr. Heifetz. No, that's not what I was saying.
Mr. Russell. But that's in multiple statements to include
your recorded testimony. You do state that we should avoid that
because it might be discriminatory or exceptional. Do you
believe that it's discriminatory or exceptional to have an
additional scrutiny on Iranian people conducting Iranian
business?
Mr. Heifetz. I believe that we have to be very careful
about the exercise of VWP privileges and the withdrawal of
those VWP privileges and that we need--that it is in the United
States' national security interests to ensure compliance with
the JCPOA.
Mr. Russell. Well, okay, but that is a whole separate issue
with the joint agreement.
Mr. Heifetz. Well, it's ----
Mr. Russell. In fact, let's talk about trading allies. Our
top 20 allies, GDP, okay, China, Brazil, India, Saudi Arabia,
Hong Kong, Malaysia, these are in the top 20 trading partners.
We are talking a lot of money, hundreds of billions of dollars
in trade to the United States. They are not on the Visa Waiver
Program. Are you suggesting, sir, that Iran should be treated
more favorably or those that do business with Iran, that, say,
if I were a Londoner and I visited Malaysia ----
Mr. Heifetz. No.
Mr. Russell.--are you suggesting that I ought to get
favorable attention because I am going to Iran as opposed to
our allies that we trade hundreds of billions of dollars with?
Mr. Heifetz. The U.S. security depends in large part on
cooperation from, among others, European allies. And when we--
if we threaten withdrawal of VWP privileges from citizens of
those countries, that's something that has to be factored into
the calculation.
Mr. Russell. Well, I agree, and I understand a little bit
about security and providing security to the United States
having nearly lost my life in defense of the country. How would
requiring additional screening on a visa application for those
conducting business in Iran be any different than, say,
exceptions to conduct business with Saudi Arabia? Do you favor
Iran over Saudi Arabia?
Mr. Heifetz. I'm not taken any position on that ----
Mr. Russell. Well, I think you are, sir. I think you are
taking a position here ----
Mr. Heifetz. No.
Mr. Russell.--with your testimony. And this is the point
that I am making--and thank you, Mr. Chairman, for your
indulgence--but we have to be very careful here. We have
vulnerabilities. We want to be a nation that is welcoming. We
have vulnerabilities. But as Mr. Ottolenghi correctly stated,
this is not an additional burden. It is not so bad that we
can't do it. And I think we need to be very careful before we
open ourselves up to real danger and real vulnerability.
And with that, Mr. Chairman, I yield back.
Mr. DeSantis. The gentleman yields back.
The chair now recognizes the gentleman from Ohio, Mr.
Jordan, for 5 minutes.
Mr. Jordan. I thank the chairman, and thank you, you and
Mr. Meadows, for putting this hearing together.
Mr. Kerlikowske, a couple months ago we had an individual
from DHS here, and we asked her a number of questions, and she
wasn't able to give us any answers. Some of them didn't deal
directly--I am going to ask you some of the same questions.
They didn't deal directly with the Visa Waiver Program, but
information I think the American public is interested in
knowing. So I am going to ask you some of the same ones and see
if you have the answers.
Do you know how many Americans have traveled to Syria in
the past 2 years?
Mr. Kerlikowske. I do not.
Mr. Jordan. And who would have that information?
Mr. Kerlikowske. Within DHS headquarters, there is a visa
waiver office, and they're also--they would work with the
Department of State on that information. We have a fairly
narrow mission ----
Mr. Jordan. I am talking about just Americans ----
Mr. Kerlikowske.--customs and border protection ----
Mr. Jordan.--who have traveled to Syria, people who have
left our country and travel to--do we know that number?
Mr. Kerlikowske. Well, if you're also ----
Mr. Jordan. Not necessarily Visa Waiver Program folks, but
just anyone.
Ms. Johnson. I think you can get the numbers from the FBI
and the National Counterterrorism Center. I know last year. So
it was over 100. I don't know what the numbers are today.
Mr. Jordan. Okay. So over 100. And of those who--do we know
how many of those 100 who have traveled there who have then
come back?
Mr. Kerlikowske. If you are talking about those that may do
harm and we are concerned about it may come back, I think
whether it is the DNI or others, I think we would be much more
comfortable in a closed setting giving you that information.
But ----
Mr. Jordan. I am not asking whether they are going to do
harm or not. I am just asking do we know Americans who have
traveled to Syria, Iraq and then have come back? Do we know
that number?
Mr. Kerlikowske. We do know that number.
Mr. Jordan. Okay. But you don't think we should give that
in a ----
Mr. Kerlikowske. I would not because ----
Mr. Jordan.--non-classified ----
Mr. Kerlikowske.--I would tell you that I think that there
is a significant heightened risk ----
Mr. Jordan. Okay.
Mr. Kerlikowske.--unless there is particular information
that they went over as a medical worker, et cetera.
Mr. Jordan. I understand.
Mr. Kerlikowske. So we'd be more comfortable telling you
that ----
Mr. Jordan. Okay.
Mr. Kerlikowske.--in a closed setting.
Mr. Jordan. So let's go to--do we know how many Syrian
refugees are in the country today? Again, not the Visa Waiver
Program, I am talking about Syrian refugees. And Ms. Johnson or
whoever can--either one.
Mr. Kerlikowske. And I think that USCIS, the director Leon
Rodriguez, that is something that would be within his
portfolio, not Customs and Border Protection.
Mr. Jordan. Okay. All right. Well, let's go to Visa Waiver
Program. How many Visa Waiver Program overstays are there
currently in the United States?
Mr. Kerlikowske. The number of overseas was estimated in
the last reports, and as Chairman Meadows mentioned ----
Mr. Jordan. This is the most recent report that you guys --
--
Mr. Kerlikowske. Right. Exactly.
Mr. Jordan.--just put together? Okay.
Mr. Kerlikowske. Over ----
Mr. Jordan. What was that number again?
Mr. Kerlikowske. Over 500,000 overstays.
Mr. Jordan. Over 500,000? And what is the average length of
time they have overstayed?
Mr. Kerlikowske. I don't have that.
Mr. Jordan. Is it in the report?
Mr. Kerlikowske. I believe it is.
Mr. Jordan. Okay. And of those half-a-million overstays, do
we know how many of those may have been to Syria or Iraq in the
past couple years? I mean, do you know their travel history? So
they are coming from largely, I mean, most likely a European
country who are part of the Visa Waiver Program. Do we know, of
those half-a-million who are here who have overstayed the time
they were supposed to be here, do we know how many of those may
have traveled to Syria or Iraq?
Mr. Kerlikowske. If we have the information from an air
manifest or a sea manifest as to whether or not they had
traveled to another country, we would have that information,
and I'd be happy to try and provide more detail. I wouldn't
have that right in front of me.
Mr. Jordan. But you do think you could get me that
information?
Mr. Kerlikowske. I could get you much more specifics to
what you're asking than what I can tell you right now.
Mr. Jordan. Well, I think that is an important question --
--
Mr. Kerlikowske. Right.
Mr. Jordan.--I mean, because if you have got half-a-million
people who are overstaying the time that they are supposed to
be here, we want to know where they came from. We want to know
where they have traveled. I mean, the whole idea is that this
Visa Waiver Program could be exploited by terrorists. It would
be interesting to know if some of the people who are currently
here who have overstayed have already violated what the
agreement is, what the law is if they had been to places in the
Middle East prior to coming to the United States.
Mr. Kerlikowske. And we also know that in order for a
country to remain in the Visa Waiver Program, there has to be a
percentage, an overstay percentage I believe--is it below 3
percent?
Ms. Johnson. The visa, yes.
Mr. Jordan. Wait. Say that again.
Mr. Kerlikowske. So all these countries that are in the
Visa Waiver Program do a whole host of things that they share
information ----
Mr. Jordan. Right.
Mr. Kerlikowske.--whether it's lost or stolen passports --
--
Mr. Jordan. I understand.
Mr. Kerlikowske.--on and on. They also have to abide by a
reduced amount of people that would be in an overstay capacity.
That would be one of the criteria.
Mr. Jordan. Okay. Well, that sort of raises the question,
then, of these half-a-million people who are here who aren't
supposed to be here, what kind of ramifications or consequences
do the countries that they came from--what kind of consequences
have happened?
Mr. Kerlikowske. Well, I would tell you that ----
Mr. Jordan. It is one thing to say there are going to be
consequences. We want to know, for the half-a-million who are
here who aren't supposed to be here, have there been any
consequences?
Mr. Kerlikowske. Well, I would tell you that the half-a-
million people includes the people that got on the plane and
left the day after their overstay. And I think as Chairman
Meadows mentioned that there's a lot of gaps in the data. I
mean, that's why I think it took so many years for people to
try and gather and put it together. That's why I was very
pleased that Secretary Johnson, working with us and other parts
of the DHS headquarters, were able to put together a report.
And as I think all of us have clearly mentioned, there are gaps
in the report. The data-gathering needs to be better, and the
information needs to be supplied not just to the Members of
Congress but also to the American public. None of us disagree
with that.
Mr. Jordan. Okay. I am over time. Thank you, Mr. Chairman.
Mr. DeSantis. The chair now recognizes Mr. Hice for 5
minutes.
Mr. Connolly. Mr. Chairman?
Mr. DeSantis. Yes?
Mr. Connolly. Would you allow just a quick clarification?
Mr. DeSantis. Sure.
Mr. Connolly. I thank the chair.
It would be helpful, Mr. Kerlikowske, if we had some
specified data on overstays. So your point is some people are
classified overstays technically because a few hours lapsed
between the expiration of the visa and their getting on an
airplane and leaving. I think it would be helpful to the
committee if we actually had a breakdown of that data. So
otherwise we are dealing with the raw data of a half-a-million,
which is not accurate. But what is accurate? And I think that
is where Mr. Jordan was going.
Mr. Jordan. If I could, Mr. Chairman?
Mr. DeSantis. Yes.
Mr. Jordan. Yes, great point. We would like to break down
that, but I think it is also important for the committee to
understand--my understanding is that half-a-million is only the
tourists and business, right? There are all kinds of other
people here on visas who overstay. They may not be in the Visa
Waiver Program, but there are all kinds of others. So that
number is just with those two programs, and we can't even get
the exact information where they have traveled before, what may
have transpired there.
Mr. Kerlikowske. You're absolutely correct, Congressman,
for instance, student visas, but student visas aren't for 90
days. Student visas are for the completion of the educational
requirement. As we know, any of us who have sent our kids to
college know they don't graduate in 4 years. So we have--so
there are significant--you know, there's significant greater
difficulties. All of us at DHS and certainly ----
Mr. Jordan. That is a good point. They may not graduate in
4 years, but our kids aren't breaking the law if they would
stay longer than 4 years. That is the point, right?
Mr. Kerlikowske. Well, actually ----
Mr. Jordan. They are breaking our wallet but not breaking
the law.
Mr. Kerlikowske. They're not breaking the law because--
they're not breaking the law if they stay 4-1/2 years to get
that college education because the--it's--at the end of the
term, at the end of the--that you can see the difficulty of
trying to track somebody for 4-1/2 years. So that's why the B-
1/B-2 visa I think was easier ----
Mr. Jordan. I am not saying it is not difficult. All I am
saying is we want the numbers, and frankly, that is your job to
know what is going on and know those who are overstaying their
time.
Mr. DeSantis. And, though, I think of the 500,000
identified, I think you have the vast majority, like 416,000,
are still in the country overstaying. And there is only a very
small fraction that were investigated by ICE for overstaying.
So I think that there is--I mean, we need the data, I agree,
but there are a lot more questions that haven't been answered.
So, Mr. Hice, you are recognized for 5 minutes.
Mr. Hice. Thank you, Mr. Chairman.
Okay. We have, by Congress, given some restrictions to the
Visa Waiver Program. Ms. Johnson, let me ask you this. Did the
administration discuss the exceptions to these restrictions
with the government of Iran before announcing those exceptions
to Congress and the American people?
Ms. Johnson. Are you referring to a conversation between--
or a letter between Secretary Kerry and Foreign Minister Zarif?
Mr. Hice. I am referring to any communication with the
Iranian Government about the exceptions.
Ms. Johnson. So I know that Secretary Kerry did send a
letter to Foreign Minister Zarif after the Iranians publicly
claimed that this law violated the JCPOA commitments. In that
letter, Secretary Kerry defended the law, telling him that it
was not a violation of the JCPOA commitments. He also outlined
the fact--what the law was, again, defending the law but also
outlined why it was not in violation of those commitments
because it is possible for Europeans to travel to Iran and
conduct legitimate business.
Mr. Hice. So there was communication. Can we have a copy of
that letter if we don't already have it, Mr. Chairman, that it
be entered in the record?
Ms. Johnson. And these are letters--I mean, we've gotten
similar letters from our VWP--or similar inquiries. Again, I've
met with ----
Mr. Hice. Okay. It is concerning to me that Congress passes
restrictions and then the administration has conversations with
the Iranian Government and makes exceptions to the restrictions
that were imposed by law, by Congress. I would like to have a
copy of that.
You mentioned also a little while ago the legitimate
business-related purposes. I have absolutely no idea what that
means. What is the definition? How is that defined?
Ms. Johnson. Well, obviously, legitimate business, we are
working through how we would process it in the context of the
waivers, but obviously, in the case of Iran, it would not be
sanctionable--things that are sanctionable under both U.S. law
and regulations, U.N. Security Council resolutions, things of
those natures. That would be our basis for starting out ----
Mr. Hice. So you are saying you don't have a real firm
definition either?
Ms. Johnson. We definitely--from the sanctionable side
obviously, and then what would be looking at how we could also
narrowed down review of those individual case-by-case waivers
to determine legitimate business.
Mr. Hice. I just don't understand how someone with a so-
called legitimate business-related purpose, how that business,
someone traveling to Iran or Iraq or wherever it may be,
somehow falls under a national security exemption. And can you
explain that?
Ms. Johnson. For both Iraq and Iran or ----
Mr. Hice. Sure.
Ms. Johnson. Yes. So obviously, in the case of Iraq we have
been encouraging governments from VWP countries but more
broadly, more globally, to engage in business with Iraq to help
stabilize their economy. That's in our national security
interests. For Iran, the same thing. We are looking at these
foreign partners and particularly the VWP countries to engage
in--they've got legitimate business interests and permissible
under the JCPOA. Again, that's why we have a deadline of July
14 when it was concluded, not before. And those are
international security interests, so those partners to be able
to participate in that activity.
These are partners, again, who are contributing to our
national security. By participating in the VWP program, they're
providing us with additional information on known and suspected
terrorists. We also have information on how they do border
controls both at their sea and land and airports. And again, we
are constantly monitoring our partnerships with those countries
to make sure that it's a securing the homeland and it's not --
--
Mr. Hice. Okay. Let me go to----
Ms. Johnson.--undermining our security.
Mr. Hice. Thank you. Let me go to Mr. Kerlikowske. The
Department of Homeland Security, are they currently monitoring
individuals who have traveled to countries like Syria, Iraq,
some of these other countries, where there is known
radicalization and training efforts that are ongoing in those
countries? Are those individuals being monitored?
Mr. Kerlikowske. We would not do that. The Department of
Justice and the Federal Bureau of Investigation would be in a
much better position to answer that. We do share ----
Mr. Hice. Is there anyone on the panel that can answer
that?
So we have experts here and we don't know whether these
people traveling these countries where there is radicalization
taking place, we don't know if they are being monitored?
Mr. Kerlikowske. Well, actually, the Department of Justice
could answer it in a closed session with probably far more
specificity ----
Mr. Hice. But none of you can answer it, so that is not
public knowledge. We don't know. Is that ----
Mr. Kerlikowske. We would not want to release information
or talk about the number of people or who is being monitored
who may pose a threat to people of this country in a ----
Mr. Hice. All right. My time is almost gone.
Mr. Kerlikowske.--in an open setting.
Mr. Hice. Since you can't answer that, let me ask it this
way. Is there any way for the U.S. Government to prevent
individuals from visa waiver countries where there is
radicalization and training, terroristic training taking place,
is there any way to ensure that these individuals cannot enter
the United States under the Visa Waiver Program?
Mr. Kerlikowske. You know, as a police chief of two of the
largest cities in the country, I was never held accountable for
having Seattle not having any crime. We did the very best we
could. I would tell you that it might be very much similar to
what we do now. Every day, Customs and Border Protection
personnel deny admissibility in this country to 241 people that
are either stopped at preclearance, they're stopped at a port
of entry, or their arrested or apprehended. It happens every
single day.
Mr. Hice. But we are giving exceptions to a Visa Waiver
Program that, as you just have mentioned, as you just declared,
has no real security. We don't know if we are preventing people
from radicalized countries from coming into the United States
under the Visa Waiver Program.
Mr. Kerlikowske. And I didn't say that. It--I wouldn't say
that it has no--I'd say it has greater security than many of
the systems in place.
Mr. Hice. My time is up, Mr. Chairman. Thank you.
Mr. DeSantis. The gentleman's time is expired. The chair
now recognizes the gentleman from Kentucky, Mr. Massie, for 5
minutes.
Mr. Massie. Thank you, Mr. Chairman.
I would like to take my time to discuss what I hope is an
unintended consequence of some hasty changes to this
legislation before it passed. As a result of this legislation,
citizens of Visa Waiver Program countries can no longer travel
to the United States visa-free if they are dual nationals of
Iran, Iraq, Sudan, or Syria solely due to their ancestry.
And let that sink in. I mean, this feels like
discrimination to me because if the citizens of those countries
we are excluding, if those countries in the Visa Waiver Program
decide to reciprocate, there is a category of millions of
Americans, freedom-loving Americans that could be exposed to
discrimination as a result merely of who their parents were.
And by this I mean you could be swept into this program of
discrimination even if you have never been to one of these four
countries if you are solely the progeny of somebody from one of
these countries because three of the countries consider you to
be a citizen of that country even if you weren't born there so
long as your father was a citizen of that country. This is a
great concern to me.
There is a piece of legislation that I have introduced. The
primary sponsor is Justin Amash. It is H.R. 4380. It is called
the Equal Protection and Travel Act of 2016 that would remedy
this problem.
And, Mr. Chairman, I ask unanimous consent to enter into
the record two letters in support of H.R. 4380, the Equal
Protection and Travel Act of 2016. The first letter is from the
American Civil Liberties Union and the second letter is signed
by 65 separate groups representing a wide range of viewpoints
and membership.
Mr. DeSantis. Without objection.
Mr. Massie. So while we have got the witnesses here who are
obviously experts on the Visa Waiver Program, I want to ask,
for instance, Mr. Heifetz--and anybody is welcome to answer
this--of what national security advantage would there be to
excluding people from this program merely because their parents
were citizens of one of these countries, Mr. Heifetz?
Mr. Heifetz. None that are apparent.
Mr. Massie. Please elaborate.
Mr. Heifetz. Well, I think a couple things are worth
noting. First, the most significant expansion of the Visa
Waiver Program occurred in the Bush administration. This was a
security program, properly viewed as one. Secretary Chertoff
has spoken on numerous occasions about Visa Waiver Program
enhancing U.S. security. And the reason for that is the
tradeoff is one between a short--what is typically a short
interview by a consular officer. In exchange, rather than
having that, we get heightened security standards by our Visa
Waiver Program partners, particularly including lots of data to
some of the questions that have come up--lots of data about who
it is who intends to travel here, data that we wouldn't
otherwise have access to.
So I think part of the points--part of what--the point that
has been made several times is that when we begin--if we chip
away at the advantages to the member states--to the VWP member
states, we risk the security that comes with the additional
information about who those people are and the heightened
security standards that our VWP members provide.
Mr. Massie. Well, let me elaborate about this category of
individuals that is going to be discriminated against and then
ask another question. So this category includes people who may
have fled here from those countries, for instance, in the '70s
from Iran, who were seeking relief from that regime and have
never gone back, never returned to that country.
Do we have any evidence--is there a single example of
somebody who came to this country and is a dual citizen of one
of these countries that presented a terrorist threat, you know,
with credible evidence? And I am talking about people who were
either born in the United States and became, by virtue of their
parentage, a citizen of one of these countries, or fled here
and never went back. Is there a single example?
Mr. Ottolenghi. Yes, sir. Manssor Arbabsiar, involved in a
plot to try and murder the Saudi Ambassador to the United
States in October 2011, Iranian American national living in
Texas instructed and abetted by the cousin from Iran involved
in the--Iran's Revolutionary Guard Corps forces.
Mr. Massie. And ----
Mr. Ottolenghi. So that's one example.
Mr. Massie. And ----
Mr. Ottolenghi. The second example, sir, is the seven
recent pardons by the President ----
Mr. Massie. Let me ask you about that example.
Mr. Ottolenghi.--of Iranian Americans ----
Mr. Massie. That individual had never traveled to Iran.
Mr. Ottolenghi. Sir, you are raising the point about dual
nationals who are citizens ----
Mr. Massie. Right. And ----
Mr. Ottolenghi.--of the United States and citizens of Iran.
The point being made ----
Mr. Massie. My point, the question was for people who have
not returned to the country or people that were born here.
Mr. Ottolenghi. I am not familiar with the travel patterns
of Mr. Arbabsiar ----
Mr. Massie. Okay. Well, my ----
Mr. Ottolenghi.--but certainly he was ----
Mr. Massie.--time is expired.
Mr. Ottolenghi.--a dual national.
Mr. Massie. My time is expired. So here is the point I am
making. I think it is fair to discriminate against someone
based on their activity, their actions, or their travel
patterns but not on their parentage. And I think the
legislation runs the risk of disenfranchising millions of
freedom-loving Americans. And I hope people will consider H.R.
4380 to remedy this.
And I yield back my time.
Mr. DeSantis. The gentleman's time is expired.
The chair now recognizes the gentleman from South Carolina
for 5 minutes.
Mr. Mulvaney. Thank you, Mr. Chairman. I thank the panel. I
have just got a couple of clean-up questions for a couple
different folks as we come to the end of this first round.
Mr. Heifetz, we will start with you. You have been asked a
couple times by a couple different people how is it--and in
fact several folks have been asked how could it be possible
that somebody going someplace on business could be a national
security interest or national security threat? But I don't
think that is your point.
Let me see if I am correctly articulating your point, and I
think Ms. Johnson may have made a similar point, which is that
if we interfere with the free travel of, say, a European
businessman or woman who has gone to Iran, then gone back, and
then comes into this country, we deny that person the Visa
Waiver Program, then that may discourage trade or travel to and
from Iran, which would be a violation of the agreement we just
signed with Iran a couple weeks ago. Is that your argument,
sir?
Mr. Heifetz. That is an argument as to why discretion with
respect to the waiver is important.
Mr. Mulvaney. I will take that as a yes, as lawyers tend to
do, but I will take that as a yes unless you are telling me it
is no, that what you are saying is that because that
interpretation of the statute would potentially or likely
violate the agreement with Iran, that it is in the national
security interest of the United States to do something else,
because breaching the agreement with Iran is against the
national security interest of the United States?
Mr. Heifetz. That's--yes.
Mr. Mulvaney. Okay. Let me ask you this. What if the bill--
what if the law, by the way, signed by the--I mean passed by
the House and the Senate and signed by the President required
the President to do something in violation of the JCPOA? Would
it still qualify as a national security waiver under this law?
Could the President break the law in order to not break the
JCPOA?
Mr. Heifetz. I have a hard time envisioning the scenario
that perhaps you're envisioning. The ----
Mr. Mulvaney. We passed a bill today that says that it is
illegal for anybody who has traveled to Iran to come into the
United States for a year. We pass that law today ----
Mr. Heifetz. And ----
Mr. Mulvaney.--and the President waived that law under
subsection C in the name of the national security interest of
the United States.
Mr. Heifetz. If there's a--an--if there's a waiver
authority for national security and the administration
determines that it's in the national security interest to waive
it, then it's not a violation of the law.
Mr. Mulvaney. No, but it is a violation of the separate law
that we may have passed. Again, take by example we passed a
bill today, we go in the House, Senate, President signs it and
says if you go to Iran, you can't come here for a year, could
the President waive that law under subsection C in your mind?
Mr. Heifetz. If the administration determines that it's in
the national security interest of the United States, then yes.
Mr. Mulvaney. And I think that is right. I think that is
consistent with your position. But my point is I start to get--
the hair on the back of my neck stands up when we say it is
okay for the President to break the law in order to accomplish
something. But anyway, again, I think we are just clarifying a
couple questions that were asked before.
A question about process, if I am that Iranian businessman
and I go to Iran and I come back--excuse me, I am a British
business person, I go to Iran and I come back and then I want
to come to the United States. How do we know that I have been
to Iran?
Mr. Heifetz. This is probably a better question for ----
Mr. Mulvaney. Okay. Anybody ----
Mr. Heifetz.--some of the others, but I--my understanding
is that they're--that the fields are expanding--the ESTA fields
are expanding to ask that ----
Mr. Mulvaney. Okay.
Mr. Heifetz.--to get at that issue.
Mr. Mulvaney. That is one possible answer. It is not the
best answer. The best answer would be that the computer systems
would know that we are sharing information with the British,
because if I lie on the ESTA or however you pronounce it, then
am I going to get caught? Do we share information with the
British on that?
Mr. Kerlikowske. We do and ----
Mr. Mulvaney. Okay.
Mr. Kerlikowske.--it's in the travel records and it's in
the either the name information or the advanced data. But then,
of course, there's another way, and that is if you then enter
the United States or you happen to be trying to enter the
United States through Dublin or Abu Dhabi, you would show to a
United States Customs and Border Protection officer a passport,
who would go through the pages of that passport and see the
stamp or see the information that you had been to one of those
four countries. And that's what we did during the Ebola issue
of those impacted countries.
Mr. Mulvaney. Okay. And then I am stopped at the border if
that is the case?
Mr. Kerlikowske. You're denied entry because you have
traveled within--after 2011.
Mr. Mulvaney. Thank you. Now, to another point--and I am
going to ask Ms. Vaughan a question and then I promise, Mr.
Chairman, I will wrap up--because we talked about this
hypothetical businessperson, we have talked to--I think Mr.
Heifetz in his testimony mentions a couple different folks.
Mr. Heifetz, I will read from yours. It says, ``It is
common and will become ever more common for a European
businessperson to travel to Iran to conduct legitimate
business''--I think we all agree with that--``but if that
European businessperson's travel will preclude further travel
to the United States, under the VWP, that might deter European
business dealings with Iran.'' You then go on to talk about the
Australian doctor who might also be deterred from going to the
Middle East in order to provide services.
Ms. Vaughan--and someone told me before you used to work in
the Foreign Service.
Ms. Vaughan. That's right.
Mr. Mulvaney. Okay. I will ask you first and then I will
ask anybody. Does anybody really believe that the possibility
of getting kicked out of the Visa Waiver Program is going to
deter a doctor from going to work in the Middle East?
Ms. Vaughan. I do not think so. And certainly not with
respect to business ----
Mr. Mulvaney. If I have a doctor ask that--if I go to this
country, can I still get in ----
Ms. Vaughan. Right, like, oh, I can't ----
Mr. Mulvaney. Yes.
Ms. Vaughan. Yes, I can't go to Disneyland or something.
Mr. Mulvaney. Right.
Ms. Vaughan. I don't think that would deter them. I don't
think it would deter a businessperson. If they're pursuing a
lucrative business opportunity in Iran or Iraq, $160 and the
time of a visa interview is not going to be too much of a cost
of business to go take care of that. I think it's a mistake to
think of these people as victims.
Mr. Mulvaney. Well, I am not going to get into
victimization, but I tend to agree it doesn't discourage them.
If anybody else disagrees--I'm going to let Mr. Heifetz
disagree with that because it was his testimony. Does anybody
else disagree? Does anybody really think that is a deterrent to
travel?
Okay. Let the record reflect nobody said no.
Mr. Heifetz, it is your testimony. Why do you think it is a
deterrent to travel?
Mr. Heifetz. We ----
Mr. Mulvaney. Do you have personal experience with that?
Mr. Heifetz. Yes, we have clients who--it is--to address
another point that arose, I think it is common knowledge that
travel history--an individual traveler's travel history is a
factor that's taken into account as to whether to grant an ESTA
and whether to grant entry to the United States, and properly
so.
We have been asked with some frequency whether travel to a
particular location will cause difficulties entering the United
States, and the answer to that is it might. And there have been
instances in which people have foregone travel because of that
concern. So I would expect that there would be instances in
which people decline the type of travel that we've been
discussing if VWP privileges were at risk.
Mr. Mulvaney. Thank you, Mr. Heifetz. Thank you to the
whole panel ----
Mr. DeSantis. The gentleman's time is expired.
Mr. Mulvaney.--and thank you, Mr. Chairman.
Mr. DeSantis. We are going to wrap up. We have votes. So I
am just going to recognize the chairman of the Government
Operations Subcommittee, Mr. Meadows, for a minute.
Mr. Meadows. Thank you, Mr. Chairman.
Mr. Kerlikowske, on the report that has been done for the
visa overstays--and we are not talking about visa waiver; we
are talking about all visa overstays--are we expecting another
report? Because, as you and I agree, that is not complete. So
we are expecting a final report from DHS?
Mr. Kerlikowske. We are expecting a subsequent report in
which we would have greater detail and more information.
Whether or not that is for this coming year, I--because the
visa waiver ----
Mr. Meadows. Because we have had other testimony that would
suggest that we would get that within 6 months. I guess what I
am saying is, is the report we got is not viewed by DHS as
agreeing to the sworn testimony we have already had before this
committee, is that correct?
Mr. Kerlikowske. You know, I don't know, but I'd be happy
to ----
Mr. Meadows. Okay.
Mr. Kerlikowske.--get back to you with an answer.
Mr. Meadows. In the 13 seconds ----
Mr. Kerlikowske. Yes.
Mr. Meadows.--I have remaining, let me tell you my concern.
We continue to get stonewalled with regards to the visa
overstayed numbers. I know that there was a report done in 2013
that has failed to be released. It is time. It is time you get
it back to this committee, and we are going to continue to
bring you back until we get a report, okay?
Mr. Kerlikowske. Okay.
Mr. Meadows. I will yield back.
Mr. Connolly. Mr. Chairman?
Mr. DeSantis. The gentleman yields back.
I want to thank the ----
Mr. Connolly. Mr. Chairman?
Mr. DeSantis.--witness--yes?
Mr. Connolly. Would you just yield me the same amount of
time?
Mr. DeSantis. One minute.
Mr. Connolly. Thank you very much.
Just a statement for the record, it seemed to be suggested
in Mr. Mulvaney's questioning that the President of the United
States had violated the law. There is no evidence of the
President of the United States violating the law. That is a
very grave charge. It is one any one of us at this dais would
take exception to if somebody threw that at us. And it is no
less significant when you do it with the President of the
United States.
He is taking advantage of a provision provided in the law.
If we don't like it, we can change the law. And it is no
different than a waiver authority that has been provided in 1
million pieces of legislation to myriad Presidents of the
United States. I am old enough to remember Ronald Reagan using
waiver authorities with impunity, and he wasn't violating the
law even though I didn't always like it.
Thank you.
Mr. DeSantis. Well, I think Mulvaney was talking about a
hypothetical case, but I think we do on this side of the
aisle--at least I do--you know, consider the national security
waiver to be narrow, and in this instance, when you are
expanding it to Iranian business travel, I think a lot of us
think that that is not consistent with Congress's intent.
But I would like to thank our witnesses for taking the time
to appear before us today.
If there is no further business, without objection, the
subcommittee will stand adjourned.
[Whereupon, at 4:53 p.m., the subcommittees were
adjourned.]
APPENDIX
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