Feinstein is chairman of the Senate Judiciary Subcommittee on Terrorism, Technology and Homeland Security, which heard testimony in September on the “Visa Waiver Program: Mitigating Risks to Ensure Safety of All Americans.”
The visa waiver program (VWP) allows citizens in participating countries to enter the United States without obtaining a visa or being interviewed or screened in U.S. embassies and consulates. Bush administration officials are “moving aggressively” to expand the program to include 13 new countries before the end of the year, according to a General Accounting Office (GAO) report released in late September.
Those prospective new members include Bulgaria, Cyprus, Czech Republic, Estonia, Greece, Hungary, Latvia, Lithuania, Malta, Poland, Romania, Slovakia, and South Korea. At present, the VWP allows citizens of 27 nations to enter the United States for business or travel for up to 90 days. Some 13 million foreign citizens took advantage of the program last year, the GAO report states.
Expanding the program is warranted in part because the new nations under consideration have had strong economic, political, and military ties with the U.S., say officials with the Department of Homeland Security (DHS). The 9/11 Act passed in August 2007 gives the DHS latitude to consider expanding the waiver program to countries with a short-term business and tourism visa refusal rate that falls within 3 to 10 percent.
(The refusal rate refers to the number of temporary visa applications denied as a percentage of the total temporary visa applications for foreign nationals in a particular country.)
Stewart Baker, assistant secretary for the office of policy directorate at DHS, acknowledged in testimony before the subcommittee that the program as originally conceived had “serious holes” and did not adequately deal with the threat of terrorism.
But he also said significant improvements made since the program’s inception have bolstered counterterrorism and strengthened international partnerships. Baker cited agreements on the exchange of terrorist watchlists and the implementation of more aggressive reporting on lost and stolen passports. Moreover, according to Baker’s testimony, the DHS anticipates having the ability to “verify a 97 percent biographical match for the departure of foreign nationals exiting through U.S. airports” by November of this year.
Feinstein, however, expressed strong reservations about the program and indicated she would oppose extending visa waivers to include additional countries. She announced her intention to introduce “Strengthening Visa Waiver Program to Secure America Act” as an alternative to administration plans.
“Radicalism and homegrown terrorism in Europe is growing and we know that Al Qaeda is looking to exploit the visa waiver program,” Feinstein said in her opening statement. “But instead of acknowledging the threat this poses to the American people, the administration is working to admit new countries with even higher visa refusal rates -- meaning more people could be let into this country who would have previously been refused a visa because of security risks.”
Feinstein also referenced points of criticism in the GAO report that indicate the DHS has not successfully mitigated program risks that could offer terrorists a gateway into the U.S. For instance, the GAO report shows homeland security does not take into account visa overstays.
The air exit system, for example, set up to keep tabs on the departure of foreign nationals, will register only 97 percent of individuals who leave by way of U.S. airports. It will not be used to determine whether individuals who entered at airports actually left when their visas expired, according to the GAO report.
The risks associated with lost passports and stolen identifications also point to flaws in the program, Feinstein observed. Between January 2002 and June 2004, 28 foreign governments, including visa waiver countries, reported more than 56,000 stolen blank foreign passports to the U.S. State Department, she said.
“I find it ironic that the Department of Homeland Security, whose number one goal is to ‘protect the nation from dangerous people’ is instead expediting the expansion of a program that we know is exploited by dangerous persons,” Feinstein said. “Clearly, the visa waiver program leaves open both a major gap in our domestic security and a way to exploit our immigration laws.”
Feinstein told CNSNews.com that she is not comfortable with expanding the program in light of the GAO findings, and that she instead favors imposing constraints that protect the American people in a time of terror.
“Constraining is a good word,” she said. “We need to know who is coming and who is going and we need to know their whereabouts. Right now, I’m not too keen on the program.”
The idea of allowing travelers to enter the United States without being interviewed did not sit well with Sen. Jon Kyl (R-Ariz.) either. Kyle is the ranking minority member on the committee.
Kyl sees “a definite risk of illegal immigration” attached to the program, which could translate into national security challenges. He is open to legislation that would properly balance security concerns with travel benefits for foreign nationals.
For his part Baker, the DHS official, said he shared the committee’s concerns over security, but he suggested that the visa waiver program, if properly implemented, could close off points of vulnerability while strengthening diplomatic ties.
New technology such as the Electronic System for Travel Authorization (ESTA) has helped make it possible to identify “risky travelers” before they arrive in the U.S., Baker said. Beginning in January 2009, DHS anticipates making ESTA mandatory for visa waiver travelers, according to the GAO report.
“Overall [ESTA] strengthens substantially the security of the VWP by providing DHS with the capability to conduct enhanced vetting of VWP travlers,” Baker said in testimony.
Under ESTA, visa waiver travelers must submit biographic information electronically before leaving for the United States. The ESTA applications are then matched against various databases to determine whether individual travelers are security threats.
“ESTA is essential to transforming the VWP from a program that evaluates security threats on a country-by-country basis to one that is capable of making traveler-by-traveler determinations,” Baker said. “In addition to enhancing security, ESTA will provide for greater efficiencies in the screening of international travelers by reducing traveler delays at ports of entry.”
There is considerable merit to the visa waiver program that should be carefully weighed before members of Congress “jump the gun,” Jena Baker McNeill, a homeland security analyst with the Heritage Foundation, wrote in a policy paper circulated at the hearing.
The “VWP is a fabulous way to accomplish several important goals: building a community of free nationals; fueling economic, cultural and social ties; and increasing American public diplomacy,” she wrote.
McNeill also advised congressional figures to be cognizant of “diplomacy boons” that will likely follow out from VWP. Participating countries that view acceptance into VMP as a sign of trust from the United States will be inclined to reciprocate, she said.