[Congressional Record (Bound Edition), Volume 150 (2004), Part 16]
[Senate]
[Pages 21380-21382]
[From the U.S. 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 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

[[Page 21381]]

     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-- and that their visa 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

[[Page 21382]]

     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.
     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.

                          ____________________