[Congressional Record Volume 150, Number 126 (Thursday, October 7, 2004)]
[Senate]
[Pages S10678-S10680]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PRIVACY AND CIVIL LIBERTIES
Mr. LEAHY. Mr. President, yesterday, we passed an important bill
granting enormous additional authority and tools to the government to
fight terrorism. We authorized the creation of a vast information
sharing network that will allow officials throughout the U.S.
government to search databases containing extensive data about American
citizens. We also gave broad authority to implement new technologies,
standardize identification documents and enhance border security. These
are great powers that, as the Commission noted, will have substantial
implications for privacy and civil liberties.
This bill was also notable because it balanced this grant of power
with the creation of a Privacy and Civil Liberties Oversight Board. I
thank Senator Lieberman for including this Board as part of the
National Intelligence Reform Act, and for working with Senator Durbin,
me and others to make sure the Board had the necessary authority,
mandate and tools to ensure that civil liberties and privacy are
safeguarded as we enhance our antiterrorism policies and tools.
Mr. LIEBERMAN. I have been pleased to work with Senator Durbin,
Senator Leahy and others in creating a Privacy and Civil Liberties
Board that is in keeping with the Commission's recommendation. The
Commission recommended that we create an entity that could ``look
across the government at the actions we are taking to protect ourselves
to ensure that liberty concerns are appropriately considered.'' Senator
Collins and I appreciated the contributions of members of the Judiciary
Committee. Their long-standing expertise in these issues was very
helpful to us in shaping the key provisions of the Board.
Mr. LEAHY. We all recognized that we were giving this Board
substantial responsibility. Given the enormous powers we were granting
the government, we needed a Board capable of counter-balancing these
powers. But we also know that this does not end our duty.
Mr. LIEBERMAN. I agree. Accountability for this Board is essential.
As the 9-11 Commission stated, ``strengthening congressional oversight
may be among the most difficult and important'' of our recommendations.
We cannot assign the Board such significant responsibilities without
regularly reviewing its progress to ensure that its mandates are being
met. We have an obligation to exercise vigorous oversight of its
actions.
Mr. LEAHY. The Judiciary Committee and the Governmental Affairs
Committee have a shared history of working together to preserve privacy
and civil liberties, and to promote open and accountable government.
Our committee members have developed substantial expertise and
experience in these areas, and we have a duty to continue to oversee
these concerns. I thank the distinguished Ranking Member of the
Governmental Affairs Committee for working with us to ensure that the
Board's work on privacy and civil liberties matters be under the
jurisdiction of both these committees so that we can continue to
provide effective oversight.
Mr. LIEBERMAN. I agree that joint jurisdiction over the Board's work
on privacy and civil liberties matters is the most effective and
appropriate way to take advantage of our shared expertise and
experience. I thank the Ranking Member of the Judiciary Committee for
his commitment and dedication to fighting for the rights and liberties
that make this country worth preserving. As the Commission stated,
``[w]e must find ways of reconciling security with liberty, since the
success of one helps protect the other.''
Mr. KYL. Mr. President, I ask unanimous consent that two letters,
which I sent to 9/11 Commission member Slade Gorton, be printed in the
Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Senate,
Washington, DC, May 13, 2004.
Hon. Slade Gorton,
Member, National Commission on Terrorist Attacks Upon the
United States, Washington, DC.
Dear Slade: Thank you for sending me the two 9/11
Commission staff statements in response to my April 23 letter
to you about the visa-processing policies of the State
Department. As you and the other Commissioners prepare to
write your final report, I offer what I hope will be taken as
constructive criticism of the statements.
What the Commission staff did not note is the most
important point of all: if the law had been followed, at
least 15 of the 19 9/11 terrorists would not have been in the
country on September 11. The visa applications of the
hijackers were so flawed that no reasonable person could have
believed that they met the standards for entry imposed by the
law for all visa applicants. Making matters worse, no matter
how deficient the paper applications, most of the Saudi
applicants were granted visas without an oral interview,
clearly contrary to both the spirit and intent of the law,
which makes clear that applicants for nonimmigrant visas are
considered ineligible for a visa until they prove their own
eligibility. In other words, our law creates a presumption
against granting the visa by putting the burden of proof on
the applicant.
Under Section 214(b) of the Immigration and Nationality Act
an alien applying to enter the U.S. shall be ``presume[d] to
be an immigrant until he establishes to the satisfaction of
the consular officer, at the time of application for
admission, . . . that he is entitled to a nonimmigrant
status.'' In other words, the law is intentionally designed
to force applicants to prove eligibility for a nonimmigrant
visa. For Saudi nationals, however, visas were all but
guaranteed to be issued--directly in conflict with the spirit
and intent of the law.
All 15 of the Saudi's applications contained inaccuracies
or omissions that should have prevented them from obtaining
visas; and, despite initial indications by the State
Department that almost all of the Saudi applicants had been
interviewed, only two of the 15 Saudi applicants were
interviewed by State.
The errors in the applications weren't trivial mistakes,
such as punctuation or spelling. Visas were granted to young,
single Saudi males who omitted fundamental information such
as: means of financial support (and it appears none of the 15
hijackers whose applications survived provided supporting
documentation), home address, and destination or address
while in the U.S. The October 28, 2002 National Review
article by Joel Mowbray, ``Visas for Terrorists: They were
ill-prepared. They were laughable. They were approved,''
provides the details about these mistakes.
In his article, Mowbray writes that, ``For almost all of
the applications, the terrorists
[[Page S10679]]
filled out the `Present Occupation' field with `Student.'
Salem al Hamzi boldly wrote `unemployed,' while Khalid al
Mihdhar described himself as a `businessman.' Only on three
forms was the area marked `Name and Address of Present
Employer or School' even filled out. In answering the
question, `Who will furnish financial support,' most of them
listed `Myself,' while the rest cited family--despite a
complete failure in most applications to demonstrate the
requisite financial means.'' Mowbray goes on to write,
``Unclear destination in the United States. On the visa form,
the applicant must identify the address where he will be in
the United States . . . But, only one of the 15 applicants
lists an actual address, with the rest stating locations . .
. such as `California,' `New York,' `Hotel.' Not one of these
woefully lacking answers warranted so much as a correction by
a consular officer, let alone an outright denial.''
Allowing for such incomplete attention to the visa
applicants was not uncommon practice in the State Department,
particularly in Saudi Arabia. The GAO's October 2002 report,
``Border Security: Visa Process Should be Strengthened as
Antiterrorism Tool,'' said, ``At some posts we visited,
[consular officers] faced pressures to issue visas.'' In its
report the GAO concluded, ``A lack of clear guidance . . .
resulted in wide discrepancies among posts in the level of
scrutiny of visa applications and in factors used to refuse
visas to questionable applicants.'' In fact, the State
Department's written guidelines and resulting practices, as
outlined in the GAO report, allowed for widespread
discretionary adherence among consular officers in adhering
to the burden of proof requirements included in Section
214(b). As stated in the GAO report, the State Department's
``Consular Best Practices Handbook'' gave consular managers
and staff the discretion to:
``waive the personal appearance and interviews for certain
nonimmigrant visa applicants, and give the authority to use
third parties, such as travel agencies, to help persons
complete application. The written guidance did not specify
what documentation, if any, consular managers or officers
needed [to provide] support about their decisions to waive
personal appearances or interviews.''
This is exemplified by then-Assistant Secretary for
Consular Affairs Mary Ryan's cables and other written notices
to embassies telling them that eliminating the visa process
wherever possible was ``a very worthy goal,'' and the State
Department's design and implementation, under her watch, of
``Visa Express,'' which formalized lax, expedited visa
policies for the first and only time for an entire nation,
Saudi Arabia.
Mary Ryan believed in the importance of interviews, but not
for purposes of screening out those who shouldn't be
receiving visas. She wrote in a 2001 cable, ``When it comes
to judging credibility, there is simply no substitute for a
personal interview.'' Sounds good, but Ryan's emphasis was on
admitting more people. She went on to write, ``Consular
officers should avoid keeping out `qualified aliens'' who
appeared weak on paper but could have overcome [that
appearance] with a strong showing of credibility.'' Mary Ryan
explains further that the intent of Consular Affair's policy
is to ``permit a waiver of the interview when it is clear
that the alien is eligible for the visa and an interview
would be an unnecessary inconvenience.'' (Emphasis added)
Rather than criticize State's policies, 9/11 Commission
staff statements excuse the actions of the State Department,
stating the Department followed its own policies. The
Commission report remarks, ``To our knowledge, State consular
officers followed their standard operating procedures in
every case.'' But that begs the question of whether that
policy was (a) allowed by the law, and (b) sensible under the
circumstances. The State Department should not be judged on
whether or not its policies were followed, but on whether its
policies followed the law, and whether the 9/11 terrorists,
who did not qualify for visas under the law, should have been
granted visas to enter the United States. The Commission
staff's second report essentially adopts the State
Department's assertion that better watchlisting by
intelligence agencies would have been the best prevention
measure. But this obscures the larger point--if the State
Department had followed immigration law, 9/11 would not have
happened. The terrorists would have had to find another way
to get into the country.
In addition to its silence about Consular Affairs'
dereliction of duty with respect to complying with
immigration law, that the Commission members did not comment
on why the Consular Affairs office of the State Department,
the lead agency before 9/11 on terrorism matters, believed
that it needed to be ``informed . . . that Saudi citizens
could pose security risks,'' is very troubling.
Either blatant disregard, or ignorance of the facts
surrounding Saudi Arabia (even though it was the Department's
responsibility to know the issues) allowed for the creation
of the now-defunct Visa Express program specifically for
Saudi Arabia. The formal exemption of Saudis from the
interview process and the acceptance of nearly all Saudi
applications through travel agents (with a financial interest
in the applicants' approval) gave non-governmental agents the
de facto ability to shape U.S. immigration policy. Three of
the hijackers, in late summer, entered the country through
this program.
The Commission staff, however, practically defends the
Saudi Visa Express program in its comments by stating that it
``was established in part to keep crowds of people from
congregating outside the posts, which was a security risk to
the posts . . .'' The Commission report goes on to say that
it ``found no evidence that the Visa Express program had any
effect on the interview or approval rates for Saudi
applicants . . . or reduced scrutiny . . . `` Maybe not, but
it certainly took everything bad about visa processing policy
and rolled it into a formal program for Saudi Arabia, home to
many Islamic militants and to 15 of the 19 terrorists.
Secretary Lehman and Mr. Ben-Veniste, your Commission
members, pointed out during their exchange with Mary Ryan on
January 23, that it was common knowledge that Saudi Arabia
was home to many radical Islamists and some al Qaeda
operatives specifically, and by inference that a program
formalizing weak visa processing policies was wrong.
Mary Ryan's lack of common knowledge about the hostility of
many Saudi citizens toward the U.S., and, at the least, the
Saudi government's complacency about such fanaticism, caused
much concern for Lehman and Ben-Veniste. That these
exchanges, or at least their implications, did not warrant
even a mention from the Commission staff is disturbing.
On January 23, Ben-Veniste asked Mary Ryan the following,
`` Here, in the summer of '01 and somewhat before, you have
recognized that a crowd control at the embassy or at the
consular office, offices in Saudi Arabia posed a problem
because of the potential harm to individuals from those who
meant the United Sates and its interests harm. If we take
that just one step further, would you agree that the
individuals in the Kingdom of Saudi Arabia who might pose
such a threat to cause harm to individuals at or about the
embassy would be Saudis rather than foreigners?''
``[O]nce you acknowledge that there is certainly a number
of Saudis who might be in a position to do us harm through
violence against individuals at or near our consular offices,
it doesn't take a whole lot to go to the next step, even
without specific information from our intelligence agencies,
that such individuals who mean us harm might in fact wish to
come to the United Sates. So the notion, would you not agree,
of Saudis not posing a particular threat being taken out of
that threat matrix really doesn't stand up even on the basis
of cursory information that you had available?''
``Saudis mean us harm in Saudi Arabia because they might
blow up the embassy or harm individuals in the vicinity of
the embassy but the Saudis who might seek entrance to the
United States were not considered a problem?''
In her response, Ryan continues to refuse to acknowledge
that for a number of reasons, the visas of Saudi citizens
should not have automatically been approved. She said, ``You
know, in the absence of information that someone is a threat
to the nation, we are dependent on the information that we
have in our system developed by intelligence and law
enforcement agencies about people who mean us harm.''
In her next interchange, with Secretary Lehman, Ryan's
response is similar. Secretary Lehman asked, ``In some of the
interviewing of some of your officials that were doing the
actual consular functions in Saudi Arabia at the time, they
said in so many words, gosh, if we only knew. If someone had
told us that Saudi Arabia was a threat. We thought that they
were our friends and all we were looking for were people who
were trying to immigrate and we weren't looking for
terrorists. Well, hello. I mean, did anybody read the
newspapers? I mean there were books. The literature was rife,
you know, books like ``Among the Believers'' that catalogued
this tremendous proselytizing of hatred and of fundamentalism
around the world, sourced in Saudi Arabia, with many Saudi
Arabian institutions and clerics the source of it. . . . So,
I don't think the record supports your view.''
Ryan responded, ``Before September 11, and I think even
after September 11th, until now, I think that this
government, our government, does regard Saudi Arabia as an
ally. In the current issue of Foreign Affairs, the deputy
secretary says that we have every confidence in the crown
prince of Saudi Arabia to carry out the reforms that he is
trying to carry out. I mean, that doesn't sound like we
regard Saudi Arabia as a state sponsor of terrorism. It was
never so identified before September 11, it was never so
identified after September 11.'' But the obvious fault
in Ryan's logic is that even if one considers the Saudi
government an ally, that does not mean that its nationals
pose no security threat to the United States.
The State Department has repeatedly claimed that its visa
policies in Saudi Arabia were reasonable since it lacked
specific intelligence to determine that it should have acted
otherwise. This claim, however, is dubious at best,
considering that pre-9/11, the State Department was
considered the lead agency on counterterrorism. While it is
often said that pre-9/11 actions can be excused because
terrorism was not deemed a primary concern, the fact is that
the top agency for counterterrorism before 9/11, the State
Department, knew, or should have known, the risks in
deliberately reversing the presumption in the immigration law
in order to make it as easy as possible for people to obtain
visas in a country with known terrorist elements. Even long
after State learned that 15 of the 19 terrorists were Saudi
nationals--
[[Page S10680]]
and that their visas applications were clearly not sufficient
under the law--the Department adamantly refused to tighten
visa procedures and only began interviewing all nonimmigrant
applicants between the ages of 12 and 70, including Saudi
citizens, in July of 2002--a full ten months after the
terrorist attacks.
Although Saudi Arabia was and is considered a U.S. ally, it
was the responsibility of the Consular Affairs assistant
secretary to know, even before 9/11, the Saudi-terrorism
connection and how it might have been present among
individuals trying to get into the U.S. The Commission report
should have made this connection, but it did not. It found no
real fault of Consular Affairs in this regard.
As I mentioned at the outset, I hope you will use my
findings to advance constructively the final report of the 9/
11 Commission. I believe that if you are going to provide an
accurate picture to the American public about what caused the
tragic events of September 11, you must place greater
emphasis on our government's approach to visa processing and
its compliance with immigration law in this regard, and on
processing in Saudi Arabia in particular. As important as it
is to examine the intelligence failures before 9/11, it is no
less important to discuss how simple enforcement of the law
would have prevented at least 15 of the 19 9/11 terrorists
from being in the United States on that tragic day.
Sincerely,
Jon Kyl,
U.S. Senator.
____
U.S. Senate,
Washington, DC, April 23, 2004.
The Hon. Slade Gorton,
Member National Commission on Terrorist Attacks Upon the
United States, Washington, DC.
Dear Slade: I write to convey how important I believe it is
that the 9/11 Commission focus on the State Department's, and
to a lesser degree, Immigration and Naturalization Service's,
contribution to the dysfunction of our government before
September 11.
It is clear to me that the State Department's Office of
Consular Affairs, headed then by Mary Ryan, was utterly
ineffective in making sure U.S. security interests were
protected. Having read Ms. Ryan's January 24, 2004 testimony
before the Commission and her responses to its questions, I
have concluded, that, even today, she does not understand
that, if U.S. laws related to the processing and approving of
visa applications had been followed, September 11 could have
been prevented.
Section 214(b) of the Immigration and Naturalization Act
presumes that an alien who apples for a temporary visa
actually intends to stay here permanently ``until [the alien]
establishes to the satisfaction of the consular officer''
that he only intends to come here temporarily. The State
Department should not deem an applicant as having established
his intent until all processes related to the visa are
complete and until a face-to-face interview has been
conducted. Before September 11, consular officers were
allowed to regularly approve temporary visa applications even
when applications were incomplete and no face-to-face
interviews were conducted.
On January 24, in response to a question from Commissioner
Gorelick about ``how and in what circumstances the hijackers
got into this country,'' Mary Ryan declared that consular
officials ``adjudicated the visas correctly.'' This is simply
false. At a minimum, the applications of the hijackers were
incomplete. All 19 had omissions and inconsistencies on their
visa applications that should have raised concerns about why
they wanted visas (see Mowbray article enclosed).
Additionally, personal interviews should, in my view, have
been required of all intending immigrants in order for the
State Department to have been in compliance with 214(b).
Consular Affairs, contrary to its initial statements about
this matter, failed to personally interview 13 of the 15
terrorists who were from Saudi Arabia.
Since these processes were not successfully completed, the
visas, by law, should have been denied.
In October 2002, Senator Feinstein and I, as ranking member
and chairman of the Judiciary Subcommittee on Terrorism,
wrote to Secretary of State Powell to impress upon him that
the manifest weaknesses of our nation's visa system
contributed, and will continue to contribute, to the risk of
terrorism against the United States and its citizens. I
enclose for your review our letter, a list of 20 additional
questions we submitted to Secretary Powell about visa
processing, and the State Department's answers. As you will
see from its answers, the Department refuses to acknowledge
that, if it had exercised its obligations under the law, and
refused visas to the terrorists, September 11 might have been
prevented.
Enclosed as well is a copy of the additional views Senator
Roberts and I appended to the December 2002 Intelligence
Committees' Joint Inquiry Staff Report. In our statement, we
make clear that these deficiencies, and an evident
unwillingness to make existing State Department security
mechanisms work properly, contributed to the tragedy.
I also urge you to review the exchange Ms. Ryan had with
Commissioners Ben-Veniste and Lehman wherein she shows a lack
of comprehension that special treatment of Saudis seeking
U.S. visas simply should not have occurred, given the
prevalence in Saudi Arabia of Wahhabism, a virulently anti-
American strain of Islam. I enclose, in addition, articles by
investigative reporter Joel Mowbray that provide details
about State Department activities, and particularly about the
issuance of visas to Saudi citizens. The State Department's
presumption that most Saudis were eligible for visas was
inexcusable and, I believe, definitively contributed to the
terrorist attacks on our nation.
Bottom line: 9-11 could have been prevented if State
Department officials had done their job. What are we doing to
ensure they do so in the future?
Sincerely,
Jon Kyl,
U.S. Senator.
____________________