[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
NATIONAL SECURITY AND LAW ENFORCEMENT: BREAKING THE NEW VISA WAIVER LAW
TO APPEASE IRAN
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON HOMELAND SECURITY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
SECOND SESSION
__________
FEBRUARY 10, 2016
__________
Serial No. 114-51
__________
Printed for the use of the Committee on Homeland Security
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.gpo.gov/fdsys/
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COMMITTEE ON HOMELAND SECURITY
Michael T. McCaul, Texas, Chairman
Lamar Smith, Texas Bennie G. Thompson, Mississippi
Peter T. King, New York Loretta Sanchez, California
Mike Rogers, Alabama Sheila Jackson Lee, Texas
Candice S. Miller, Michigan, Vice James R. Langevin, Rhode Island
Chair Brian Higgins, New York
Jeff Duncan, South Carolina Cedric L. Richmond, Louisiana
Tom Marino, Pennsylvania William R. Keating, Massachusetts
Lou Barletta, Pennsylvania Donald M. Payne, Jr., New Jersey
Scott Perry, Pennsylvania Filemon Vela, Texas
Curt Clawson, Florida Bonnie Watson Coleman, New Jersey
John Katko, New York Kathleen M. Rice, New York
Will Hurd, Texas Norma J. Torres, California
Earl L. ``Buddy'' Carter, Georgia
Mark Walker, North Carolina
Barry Loudermilk, Georgia
Martha McSally, Arizona
John Ratcliffe, Texas
Daniel M. Donovan, Jr., New York
Brendan P. Shields, Staff Director
Joan V. O'Hara, General Counsel
Michael S. Twinchek, Chief Clerk
I. Lanier Avant, Minority Staff Director
C O N T E N T S
----------
Page
Statements
The Honorable Michael T. McCaul, a Representative in Congress
From the State of Texas, and Chairman, Committee on Homeland
Security:
Oral Statement................................................. 1
Prepared Statement............................................. 3
The Honorable Bennie G. Thompson, a Representative in Congress
From the State of Mississippi, and Ranking Member, Committee on
Homeland Security:
Oral Statement................................................. 6
Prepared Statement............................................. 9
Witnesses
Mr. R. Gil Kerlikowske, Commissioner, U.S. Customs and Border
Protection, U.S. Department of Homeland Security:
Oral Statement................................................. 10
Prepared Statement............................................. 12
Ms. Hillary Batjer Johnson, Deputy Coordinator, Homeland
Security, Screening, and Designations, Bureau of Counterrorism,
U.S. Department of State:
Oral Statement................................................. 15
Prepared Statement............................................. 18
For the Record
The Honorable Jeff Duncan, a Representative in Congress From the
State of South Carolina:
VWP Waiver Recommendation Paper................................ 30
Appendix
Questions From Ranking Member Bennie G. Thompson for R. Gil
Kerlikowske.................................................... 51
Questions From Honorable Barry Loudermilk for Hillary Batjer
Johnson........................................................ 52
NATIONAL SECURITY AND LAW ENFORCEMENT: BREAKING THE NEW VISA WAIVER LAW
TO APPEASE IRAN
----------
Wednesday, February 10, 2016
U.S. House of Representatives,
Committee on Homeland Security,
Washington, DC.
The committee met, pursuant to call, at 11:10 a.m., in Room
311, Cannon House Office Building, Hon. Michael T. McCaul
[Chairman of the committee] presiding.
Present: Representatives McCaul, King, Miller, Duncan,
Clawson, Katko, Hurd, Carter, Walker, Loudermilk, Ratcliffe,
Donovan, Thompson, Jackson Lee, Richmond, Keating, Payne,
Watson Coleman, and Rice.
Chairman McCaul. The Committee on Homeland Security will
come to order. The committee is meeting today to examine the
administration's flawed implementation of the Visa Waiver
Program Improvement and Terrorist Travel Prevention Act. I now
recognize myself for an opening statement.
We are holding this hearing today because Congress is
confronted with a dilemma, which has grave implications for our
National security and for our democratic process. In December,
the President signed important measures into law to improve
counterterrorism screening of foreign travelers coming into the
United States.
These enhancements were urgently needed in the wake of the
Paris attacks and in light of the high terror threat
environment. But now the President has decided that he is going
to break this law.
He plans to do so, in part, to accommodate the world's
leading state sponsor of terror, Iran. I believe this decision
could have serious consequences for our security and, perhaps,
more importantly, far-reaching consequences for our democracy.
This legislation at issue is H.R. 158, the Visa Waiver
Program Improvement and Terrorist Travel Prevention Act of
2015. It was authorized by this committee's Vice Chair, Mrs.
Miller, and it implements several major recommendations from
the committee's bipartisan Task Force on Combating Terrorist
and Foreign Fighter Travel.
The bill passed the House overwhelmingly, 407-19, and it
was included in the year-end spending bill signed by the
President. This was one of the most significant pieces of
security legislation Congress considered last year.
It tightens security checks overseas and makes it harder
for terrorists to exploit the Visa Waiver Program to get into
the United States. The threat is real. For instance, more than
6,000 Westerners have gone to fight in Syria and Iraq, and many
of them are from Visa Waiver Program countries.
This means, they can enter the United States more quickly
and easily than other travelers. Nearly 2,000 of these
individuals have already come back from the battlefield.
Accordingly, the new law sends a clear message to Visa Waiver
Program citizens. If you have recently visited Syria, Iraq,
Iran, or Sudan, you must go through additional screening before
coming to the United States.
The law requires these individuals to get a regular visa,
which includes an in-person interview and the submission of
their fingerprints. Congress included specific exceptions,
including allowing individuals to still travel visa-free to
America, if their reason for being in a terrorist hotspot was
for military service or official Government business.
But during bipartisan negotiations over the bill, the
administration asked for other exceptions. They wanted to let
individuals skip the new security procedures if they had
traveled to these countries for journalistic, humanitarian,
cultural, or business purposes.
Congress explicitly rejected these exceptions, and they did
not appear in the final text of the bill signed into law. It
was clear that such broad loopholes would undermine the purpose
of the law and make it difficult and costly to implement.
Many of us are also aware that jihadists commonly use
excuses like humanitarian assistance to disguise their actual
reasons for traveling to a terrorist safe haven. In fact,
earlier this week, 7 people were arrested in Spain for
supplying arms to ISIS, disguised as humanitarian aid workers.
However, Congress did agree to provide a narrow waiver to
allow a Visa Waiver Program traveler to avoid the extra step of
visiting a U.S. Embassy if it was, ``in the law enforcement or
National security interests of the United States.''
To be clear, this waiver was intended to apply to special
circumstances, such as when a foreign traveler is being
investigated or monitored. The waiver would ensure that those
activities are not disrupted and that a suspect is not tipped
off. I believe that the administration clearly understood this.
But then Iran weighed in.
In December, the Iranian regime complained to the Obama
administration that the law would hurt their economy by
deterring European business travelers from visiting. Why?
Because doing so would mean they had to go through additional
security steps the next time they came to America.
Iran even argued that this was a violation of the nuclear
deal. In a rush to appease them, Secretary Kerry wrote a letter
declaring that the law could be waived, ``So as not to
interfere with legitimate business interests of Iran.''
Let me be clear. Nowhere does the law include this
authority. In fact, Congress explicitly rejected the waivers
requested by the White House. I joined other Congressional
leaders in writing to Secretary Kerry to remind him what the
law actually says.
Yet, last month, the administration announced it would be
able to exempt several categories of individuals from these
requirements. In fact, they claimed that Visa Waiver Program
citizens who traveled to terrorist hotspots for humanitarian or
journalistic purposes, or to Iran for business purposes, could
be exempted from the new security process.
Once again, this law does not include such exemptions. They
were proposed by the administration. They were discussed, but
they were rejected by Congress. The administration even agreed
to the final text and publicly supported the bill.
I cannot overstate how serious I believe this issue is, as
a separate, but equal, branch of the Government, the branch of
Government that makes the law. The Executive should implement
that law according to the will and intent of the Congress.
The President's moving forward with an illegal
implementation of the law that he signed only weeks ago,
breaching the trust between our 2 branches of Government and
potentially putting our Nation's security at risk.
These requirements were imposed for a reason, to ensure
individuals who have recently been in terrorist sanctuaries do
not pose a threat to our country. The law does not forbid Visa
Waiver Program travelers from coming to America. It simply adds
an additional layer of security.
But the administration's false reading of the law has
Congress and the American people wondering, ``How much further
will we bend backwards for Iran?'' We have paid them ransom to
release detained Americans. We freed up billions of dollars for
their rogue regime. Now, the President is ignoring our own laws
so we don't interfere with Iran's economic growth.
Today you will hear our witnesses say these exceptions will
only be used on a case-by-case basis. But you are not allowed
to break the law on a case-by-case basis. When you are the
President, you are not supposed to break it at all, and
certainly not for a state sponsor of terror with American blood
on its hands.
[The statement of Chairman McCaul follows:]
Statement of Chairman Michael T. McCaul
February 10, 2016
We are holding this hearing today because Congress is confronted
with a dilemma which has grave implications for our security and for
our democratic process.
In December, the President signed important measures into law to
improve counterterrorism screening of foreign travelers coming into the
United States.
These enhancements were urgently needed in the wake of the Paris
attacks and in light of the high terror threat environment.
But now the President has decided he is going to break this law--
and he plans to do so, in part, to accommodate the world's leading
state sponsor of terror, Iran.
I believe this decision could have serious consequences for our
security and--perhaps more importantly--far-reaching consequences for
our democracy.
The legislation at issue is H.R. 158, the ``Visa Waiver Program
Improvement and Terrorist Travel Prevention Act of 2015.'' It was
authored by this committee's Vice Chair, Ms. Miller, and it implements
several major recommendations from the Committee's bipartisan Task
Force on Combating Terrorist & Foreign Fighter Travel.
The bill passed the House overwhelmingly, 407-19, and it was
included in the year-end spending bill signed by President Obama. This
was one of the most significant pieces of security legislation Congress
considered last year--it tightens security checks overseas and makes it
harder for terrorists to exploit the Visa Waiver Program to get into
America.
The threat is real. For instance, more than 6,000 Westerners have
gone to fight in Syria and Iraq, and many of them are from VWP
countries. This means they can enter the United States more quickly and
easily than other travelers. Nearly 2,000 of these individuals have
already come back from the battlefield.
Accordingly, the new law sends a clear message to VWP citizens: If
you have recently visited Syria, Iraq, Iran, or Sudan, you must go
through additional screening before coming to the United States.
The law requires these individuals to get a regular visa, which
includes an in-person interview and the submission of their
fingerprints.
Congress included specific exceptions, including allowing
individuals to still travel visa-free to America if their reason for
being in a terrorist hotspot was for military service or official
Government business.
But during bipartisan negotiations over the bill, the
administration asked for other exceptions.
They wanted to let individuals skip the new security procedures if
they had traveled to these countries for journalistic, humanitarian,
cultural, or business purposes.
Congress explicitly rejected these exceptions, and they did not
appear in the final text of the bill.
It was clear such broad loopholes would undermine the purpose of
the law and make it difficult and costly to implement. Many of us are
also aware that jihadists commonly use excuses like humanitarian
assistance to disguise their actual reasons for traveling to a
terrorist safe haven. In fact, earlier this week 7 people were arrested
in Spain for supplying arms to ISIS disguised as humanitarian aid.
However, Congress did agree to provide a narrow waiver to allow a
VWP traveler to avoid the extra step of visiting a U.S. Embassy if it
was, ``in the law enforcement or National security interests of the
United States.''
To be clear, this waiver was intended to apply to special
circumstances, such as when a foreign traveler is being investigated or
monitored. The waiver would ensure that those activities are not
disrupted--and that a suspect is not tipped off.
The administration clearly understood this.
But then Iran weighed in. In December, the Iranian regime
complained to the Obama administration that the law would hurt their
economy by deterring European business travelers from visiting. Why?
Because doing so would mean they had to go through additional security
steps next time they came to America.
Iran even argued that this was a violation of the nuclear deal. And
in a rush to appease them, Secretary Kerry wrote a letter declaring
that the law could be waived, ``so as not to interfere with legitimate
business interests of Iran.''
Let me be clear: Nowhere does the law include this authority. In
fact, Congress explicitly rejected the waivers requested by the White
House. I joined other Congressional leaders in writing to Secretary
Kerry to remind him what the law actually said.
Yet last month the administration announced it would be able to
exempt several categories of individuals from the requirements. In
fact, they claimed VWP citizens who traveled to terrorist hotspots for
humanitarian or journalistic purposes--or to Iran for business
purposes--could be exempted from the new security process.
Once again: This law does not include such exemptions.
They were proposed by the administration, discussed, and rejected.
The administration even agreed to the final text without them and
publicly supported the bill.
I cannot overstate how serious this issue has now become. The
President is moving forward with an illegal implementation of a law he
signed only weeks ago, breaching the trust between our 2 branches of
Government and potentially putting our Nation's security at risk.
These requirements were imposed for a reason: To ensure individuals
who have recently been in terrorist sanctuaries do not pose a threat to
our country. The law does not forbid VWP travelers from coming to
America--it simply adds an additional layer of security.
But the administration's false reading of the law has Congress and
the American people wondering, ``How much further will we bend
backwards for Iran?''
We have paid them ransom to release detained Americans, we have
freed up billions of dollars for their rogue regime, and now the
President is ignoring our own laws so we don't ``interfere'' with
Iran's economic growth.
Today you will hear our witnesses say these exceptions will only be
used on a ``case-by-case'' basis.
But you're not allowed to break the law ``case-by-case.'' When
you're the President, you're not supposed to break it at all--and
certainly not for a state sponsor of terror with American blood on its
hands.
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman McCaul. The Chair now recognizes the Ranking
Member of the committee, Mr. Thompson.
Mr. Thompson. Thank you, Mr. Chairman, for holding today's
hearing.
Commissioner Kerlikowske and Ms. Johnson, thank you, also,
for appearing today.
This committee has a long-standing, bipartisan interest in
strengthening the Visa Waiver Program. In 2007, with the
enactment of legislation I authored the implementation--
Implementing Recommendations of the 9/11 Commission Act.
Congress required individualized security checks of
travelers participating in a Visa Waiver Program. The program
was established to--is known today as Electronic System for
Travel Authorization, or ESTA, program.
Under ESTA, citizens are eligible nationals of Visa Waiver
Program countries, must obtain an Electronic Travel
Authorization prior to boarding a plane in the United States. I
have been pleased to see DHS, over the years, take timely
action to adjust aspects of the ESTA program, in response to
the demands of the ever-changing threat landscape.
Yet, I came into this Congress, like many of my Republican
colleagues, seeing the need for more reform to the Visa Waiver
Program to bolster its security. That is why I co-sponsored
H.R. 158, the Visa Waiver Improvement and Terrorist Travel
Prevention Act, authored by Representative Candice Miller, the
Chairman of our Border Security subcommittee.
The Fiscal Year 2016 Consolidated Appropriations Act,
better known as the Omnibus, included the language from H.R.
158, requiring changes to the Visa Waiver Program. This
comprehensive legislation, which was signed into law by the
President on December 18, seeks to strengthen passport security
requirements, enhance information sharing, and improve fraud
detection.
Importantly, it also requires any Visa Waiver country that
fails to screen passports against INTERPOL's criminal and
terrorism databases, to be terminated from the program. The
provision that has garnered the most attention and is the focus
of today's hearing, involves the changes in the eligibility for
visa-free travel for some travelers from Visa Waiver countries.
Under this new law, most individuals who have visited Iraq,
Iran, Syria, and Sudan, in the last 5 years, or who hold dual
citizenship with 1 of these 4 countries, would be ineligible
for visa-free travel to the United States.
This provision was central to the bipartisan agreement
reached between Congress and the White House. During the
negotiations, the restriction on dual citizens of Iran, Iraq,
Syria, and Sudan, and travel history provisions that the
Republicans were advancing, were sticking points.
I was pleased when we were able to reach common ground on a
carve-out for certain individuals who traveled to the 4
countries for diplomatic or military service. Reaching
agreement for other categories of travelers, including
humanitarian aid workers and journalists proved to be elusive.
I appreciate that all involved came together, in the
interest of Homeland Security, to strike a compromise that the
White House, House Republican leadership, and House Democratic
leadership could accept.
In the end, those of us involved in the negotiations
understood that enacted would mean that, in most cases,
travelers who triggered the citizenship or travel history
limitation would have to go through the standard visa
application process at a U.S. embassy or consulate.
I was pleased that the law did allow the DHS Secretary to
exercise discretion, with respect to these limitations, when
doing so was in the law enforcement or National security
interests of the United States.
It is important that the Secretary be allowed to exercise
discretion, with respect to certain individuals, on a case-by-
case basis. Within days of enactment of this law, questions
emerged about the implications of the Visa Waiver Program
security reforms on the deal that President Obama was able to
reach to prevent Iran from becoming a nuclear state.
At the time, I was taken aback, since it was hard to see
how this Homeland Security bill had any bearing on the terms of
the Iran deal. The issuance of a joint press release by the
Departments of Homeland Security and State, on January 21, the
day the Visa Waiver Program changes were to begin, did little
to squelch those questions about the linkage.
The press release, it was laid out, the administration's
plan to exercise its waiver authority, identified 5 categories
of travelers who could receive waivers from eligibility
limitations set forth in the new law.
One category specifically identified was individuals who
travel to Iran for legitimate business purposes after July 14,
2015, the same date the Iran deal was concluded. It will fall
to the witnesses today to explain why we should not think that
there is a linkage to the Iran deal, when it announces this
category in a press release distributed across the globe.
As someone who supported the granting of waiver authority
to the Secretary of Homeland Security, I have questions about
the approach and the tack that the administration has taken
today.
While Secretary Johnson may plan to consider, on a case-by-
case basis, whether to allow visa-free travel for National
security purposes, the decision to list categories of travelers
that can bypass visa screening at our embassies and consulate
was a questionable one.
The administration needs to be prepared to answer questions
about its decision to create categories for waivers, including
the degree to which intelligence informs the parameters.
Additionally, the administration needs to explain why it
decided to publish the categories, thereby creating an
expectation for people who fall into these categories that they
will be able to continue to travel, visa-free, to the United
States.
We need to understand, particularly, at a time when we know
that there are some crafty, would-be terrorists eager to find
new ways to work around security enhancements in the Visa
Waiver Program, why the administration has chosen to be so
public about how the DHS Secretary may exercise this
discretion.
In reviewing the categories, I have some questions about
how the DHS Secretary will go about determining the legitimacy
of the business-related purposes for travel to Iran. I look
forward to hearing testimony from the witnesses about how many
travelers might be eligible for the waivers identified in the
joint press release and what kind of resources CBP will need to
put processes in place to fully adjudicate the anticipated
flurry of waiver requests from travelers in these categories.
I think, Mr. Chairman, you see a lot of us have questions.
Chairman McCaul. I appreciate that.
Mr. Thompson. We look forward to the witnesses to provide
some of the answers. With that, I yield back.
[The statement of Ranking Member Thompson follows:]
Statement of Ranking Member Bennie G. Thompson
February 10, 2016
This committee has a long-standing, bipartisan interest in
strengthening the Visa Waiver Program. In 2007, with the enactment of
legislation I authored, the Implementing Recommendations of the 9/11
Commission Act, Congress required individualized security checks of
travelers participating in the Visa Waiver Program.
The program that was established is known today as the Electronic
System for Travel Authorization or ESTA program. Under ESTA, citizens
or eligible nationals of Visa Waiver Program countries must obtain an
electronic travel authorization prior to boarding a plane to the United
States. I have been pleased to see DHS, over the years, take timely
action to adjust aspects of the ESTA program in response to the demands
of the ever-changing threat landscape.
Yet, I came into this Congress, like many of my Republican
colleagues, seeing the need for more reforms to the VWP program to
bolster its security. That is why I co-sponsored H.R. 158, the Visa
Waiver Improvement and Terrorist Travel Prevention Act, authored by
Representative Candice Miller, the Chairman of our Border Security
Subcommittee.
The fiscal year 2016 Consolidated Appropriations Act, better known
as the Omnibus, included the language from H.R. 158 requiring changes
to the Visa Waiver Program. This comprehensive legislation, which was
signed into law by the President on December 18, seeks to strengthen
passport security requirements, enhance information sharing, and
improve fraud detection. Importantly, it also requires any visa waiver
country that fails to screen passports against INTERPOL's criminal and
terrorism databases to be terminated from the program.
The provision that has garnered the most attention and is the focus
of today's hearing involves changes in the eligibility for visa-free
for some travelers from VWP countries. Under this new law, most
individuals who have visited Iraq, Iran, Syria, and Sudan in the last 5
years or who hold dual citizenship with 1 of these 4 countries would be
ineligible for visa-free travel to the United States. This provision
was central to the bipartisan agreement reached between Congress and
the White House.
During the negotiations, the restrictions on dual citizens of Iran,
Iraq, Syria, and Sudan and travel history provisions that the
Republicans were advancing were sticking points. I was pleased when we
were able to reach common ground on a carve-out for certain individuals
who traveled to the 4 countries for diplomatic or military service.
Reaching agreement for other categories of travelers, including
humanitarian aid workers and journalists, proved to be elusive. I
appreciated that all involved came together, in the interest of
homeland security, to strike a compromise that the White House, House
Republican leadership, and House Democratic leadership could accept.
In the end, those of us involved in the negotiations understood
that enactment would mean that, in most cases, travelers who triggered
the citizenship or travel history limitation would have to go through
the standard visa application process at a U.S. embassy or consulate. I
was pleased that the law did allow the DHS Secretary to exercise
discretion with respect to these limitations when doing so was ``in the
law enforcement or National security interests of the United States.''
It is important that the Secretary be allowed to exercise
discretion with respect to certain individuals, on a case-by-case
basis. Within days of enactment of this new law, questions emerged
about the implications of the Visa Waiver Program security reforms on
the deal that President Obama was able to reach to prevent Iran from
becoming a nuclear state.
At the time, I was taken aback since it was hard to see how this
homeland security bill had any bearing on the terms of the Iran deal.
The issuance of a joint press release by the Departments of Homeland
Security and State, on January 21, the day the Visa Waiver Program
changes were to begin, did little to squelch those questions about a
linkage. The press release, which laid out the administration's plans
to exercise its waiver authority, identified 5 categories of travelers
who could receive waivers from eligibility limitations set forth in the
new law.
One category specifically identified was individuals who traveled
to Iran for ``legitimate business purposes'' after July 14, 2015--the
same date the Iran deal was concluded. It will fall to the witnesses
today to explain why we should not think that there is a linkage to the
Iran deal when it announces this category in a press release
distributed across the globe.
As someone who supported the granting of waiver authority to
Secretary of Homeland Security, I have questions about the approach
that the administration is taking here. While Secretary Johnson may
plan to consider, on a case-by-case basis, whether to allow visa-free
travel for National security purposes, the decision to list categories
of travelers that can bypass visa screening at our embassies and
consulates was a questionable one.
The administration needs to be prepared to answer questions about
its decision to create categories for waivers, including the degree to
which intelligence informed the parameters. Additionally, the
administration needs to explain why it decided to publish the
categories--thereby creating an expectation for people who fall into
these categories that the will be able to continue to travel visa-free
to the United States.
We need to understand, particularly at a time when we know that
there are some crafty would-be terrorists eager to find new ways to
work around security enhancements in the Visa Waiver Program, why the
administration has chosen to be so public about how the DHS Secretary
may exercise his discretion. In reviewing the categories, I have some
questions about how the DHS Secretary would go about determining the
legitimacy of the business-related purposes for travel to Iran.
I look forward to hearing testimony from the witnesses about how
many travelers might be eligible for the waivers identified in the
joint press release and what kind of resources CBP will need to put
processes into place to fully adjudicate the anticipated flurry of
waiver requests from travelers in these categories.
Chairman McCaul. I thank the Ranking Member for his
leadership on this issue, as well.
Other Members are reminded that opening statements may be
submitted for the record.
We are pleased to have a distinguished panel of witnesses
before us today on this important topic. First, Gil
Kerlikowske, was sworn in as commissioner of U.S. Customs and
Border Protection in early 2014, taking the helm of the largest
Federal law enforcement agency in the United States Government.
He brings 4 decades of law enforcement and drug policy
experience to the position. Formerly served 9 years as chief of
police for Seattle, Washington. Before, he served as head of
CBP--before serving as head of CBP, he led the Office of
National Drug Control Policy.
Thank you for being here today.
Next, we have Ms. Hillary Johnson, deputy coordinator for
homeland security, screening, and designations in the Bureau of
Counterterrorism. Ms. Johnson oversees the designation of
foreign terrorist organizations and individuals under the
authorities of the Secretary of State, and terrorism screening
and interdiction programs.
I want to thank both of you for being here today. I think,
given the gravity of the circumstances that we find ourselves
here today, I will be administering an oath. If you would both
now, please stand and raise your right hand.
[Witnesses sworn.]
Let the record reflect that both witnesses answered in the
affirmative. The witnesses' full written statements will appear
in the record.
The Chair now recognizes Commissioner Kerlikowske to
testify.
STATEMENT OF R. GIL KERLIKOWSKE, COMMISSIONER, U.S. CUSTOMS AND
BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY
Mr. Kerlikowske. Chairman McCaul, Ranking Member Thompson,
distinguished Members of the committee, I returned on Sunday
morning from California, where CBP had an integral role in
safeguarding the Super Bowl. I witnessed the numerous aspects
of CBP's broad and complex mission all in one place, providing
security and surveillance on the ground and from the air,
screening cargo and deliveries for weapons and other dangerous
items.
CBP has a critical role in securing international travel
against the threat of terrorists and their supporters, while
facilitating lawful travel and tourism. Every day, we process 1
million travelers.
As you know, before boarding a U.S.-bound flight, most
foreign nationals must obtain a non-immigrant visa, issued by a
United States embassy or consulate, or the traveler must apply
for travel authorization through CBP's ESTA program.
Through ESTA, CBP conducts enhanced vetting of these
applicants, in order to assess whether they are eligible to
travel and whether they pose a potential risk to the American
people. Over the last 15 months, we have worked with the DHS,
under Secretary Johnson's leadership, to strengthen the
security of the program, through enhancements to ESTA, in order
to identify those who may pose a threat to the United States.
We have introduced additional data fields that have
increased the ability of CBP and the National Counterterrorism
Center to identify applicants with potential connections to
terrorism. In addition to these enhancements, this past August,
DHS further announced security measures for Visa Waiver Program
countries, including increased traveler data collection,
analysis, and reporting, the requirement that INTERPOL's lost
and stolen travel document database be used, and the required
use of electronic passports, which contain additional security
features.
On December 18, the President signed into law the
Consolidated Appropriations Act of 2016, which includes the
Visa Waiver Program Improvement and Terrorist Travel Prevention
Act of 2015, with some exceptions for official military and
Government law.
The law prohibits VWP travel for individuals who have been
present, at any time, on or after March 1, 2011, in Iraq,
Syria, or countries designated as state sponsors of terrorism,
which currently includes Iran and Sudan. It also prohibits VWP
travel for the individuals who are dual nationals, as of one of
these countries and a VWP country.
Well, we began implementing some of the changes required by
the new law very quickly. We have already revoked or cancelled
17,000 ESTA travel authorizations. We have established, in
conjunction with our interagency partners, a terrorist travel
prevention cell at our National targeting center.
The cell will enhance the Department's efforts to identify
and prevent foreign terrorist fighter travel. A subset of that
cell's mission will be to scrutinize individual waiver requests
on a case-by-case basis that is permitted under the new law.
Additionally, CBP will add new fields to the ESTA
application by the end of the month, and we will ask additional
questions to further improve our ability to vet individual
travelers and make decisions about their eligibility, in
accordance with the recent changes.
Well, as terrorists change their methods and tactics, and
DHS is going to continue to work with our Federal and
international partners to counter foreign fighter threats to
the homeland.
We will continue to strengthen our travel security programs
and systems, enhance our capabilities to secure international
air travel against terrorists and others who threaten the
safety of the traveling public and the security of our Nation.
Chairman McCaul, Ranking Member Thompson, and Members of
the committee, thank you for the opportunity to testify today.
I look forward to answering your questions.
[The prepared statement of Mr. Kerlikowske follows:]
Prepared Statement of R. Gil Kerlikowske
February 10, 2016
introduction
Chairman McCaul, Ranking Member Thompson, and distinguished Members
of the committee, thank you for the opportunity to testify on behalf of
the Department of Homeland Security (DHS or the Department) and U.S.
Customs and Border Protection (CBP) to discuss the Visa Waiver Program
(VWP or ``the Program'') and implementation of the Visa Waiver Program
Improvement and Terrorist Travel Prevention Act of 2015, which was
enacted as part of the Consolidated Appropriations Act of 2016.
On a typical day, CBP welcomes to the United States nearly 1
million travelers--including foreign nationals who travel to the United
States under the VWP--at our air, land, and sea ports of entry (POEs),
almost 300,000 of whom arrive by air. The VWP, which is managed by DHS
in consultation with the Department of State (DOS), permits citizens of
38 countries \1\ to travel to the United States for business or tourism
purposes for stays of up to 90 days without a visa. That does not mean
VWP travelers are able to board a plane or vessel with no security
checks. Rather, DHS thoroughly vets all VWP travelers against U.S. law
enforcement and intelligence holdings prior to departure for the United
States and, if permitted to depart, at additional points throughout the
travel continuum.
---------------------------------------------------------------------------
\1\ With respect to all references to ``country'' or ``countries''
in this document, it should be noted that the Taiwan Relations Act of
1979, Pub. L. No. 96-8, Section 4(b)(1), provides that ``[w]henever the
laws of the United States refer or relate to foreign countries,
nations, states, governments, or similar entities, such terms shall
include and such laws shall apply with respect to Taiwan.'' 22 U.S.C.
3303(b)(1). Accordingly, all references to ``country'' or ``countries''
in the Visa Waiver Program authorizing legislation, Section 217 of the
Immigration and Nationality Act, 8 U.S.C. 1187, are read to include
Taiwan. This is consistent with the United States' one-China policy,
under which the United States has maintained unofficial relations with
Taiwan since 1979.
---------------------------------------------------------------------------
In addition to the vetting and eligibility requirements for
individual travelers, to be eligible for the VWP, a country must first
meet statutory requirements, and then maintain high security standards
to retain its VWP status. Additionally, DHS, DOS, and our interagency
partners, conduct robust, National-level risk assessments--at least
once every 2 years--that assess the impact of each program country's
participation in the VWP on U.S. National security, law enforcement,
and immigration enforcement interests. Far from being a security
vulnerability, the VWP provides significant security benefits to the
United States and its citizens. The VWP offers diplomatic and economic
incentives to countries to further provide National security benefits
to the United States, such as increased sharing of information on
terrorists and criminals.
CBP's multi-layered, intelligence-driven strategy is integrated
into every aspect of our travel security operations at every stage
along the international travel sequence. In concert with our
international partners, DHS and CBP strive to ensure that travelers who
present a potential risk are appropriately vetted and stopped before
boarding a flight bound for the United States.
from travel program to security partnership
When Congress first authorized the VWP in 1986, the program was
intended to facilitate low-risk travel to the United States, boost
international trade and cultural links, and promote more efficient use
of consular resources. Recognizing that global security threats have
evolved dramatically since the 1980s, DHS and DOS have adapted the VWP
to meet the challenges of the modern threat environment. These efforts
have been most successful when working in concert with our partners in
Congress.
For instance, DHS collaborated with Congress to develop and
implement the provisions of the Secure Travel and Counterterrorism
Partnership Act of 2007, which was included as part of the Implementing
Recommendations of the 9/11 Commission Act of 2007 (9/11 Act). This
legislation transformed the VWP from a program that evaluated security
threats on a country-by-country basis to a program with the added
capability to screen individual travelers for potential threats. Under
the
9/11 Act, VWP countries are required to enter into bilateral
information-sharing agreements regarding whether citizens and nationals
of that country intending to travel to the United States represent a
threat to the security or safety of the United States or its citizens,
as well as the sharing of lost and stolen passport information, among
others.
The 9/11 Act also required DHS to develop the Electronic System for
Travel Authorization (ESTA) to pre-vet prospective VWP travelers. Since
January 2009, DHS has required all VWP travelers to obtain an ESTA
authorization prior to traveling to the United States by air or sea.
ESTA applicants must provide extensive biographic information,
including their name, date of birth, place of birth, current residence,
additional countries of citizenship, passport information, employment
information, travel itinerary, and U.S. point of contact, among others.
This information is vetted against DHS, DOS, Federal Bureau of
Investigation (FBI), and intelligence community databases to determine
if prospective VWP travelers pose a National security or law
enforcement threat to the United States. If a prospective VWP traveler
does not submit this information or is denied travel authorization, he
or she may not board a plane or vessel bound for the United States.
ESTA applicants are vetted against the same biographic databases as
visa applicants. DHS vets all ESTA application information immediately
and automatically against DHS TECS records, the FBI's Terrorist
Screening Database (TSDB), and the DOS's Consular Lookout and Support
System, as well as international databases, such as INTERPOL's Stolen
and Lost Travel Document database. All ESTA applications are also
vetted by the National Counterterrorism Center. This comprehensive
vetting approach helps to ensure that travel authorizations are not
issued to prospective VWP travelers who pose a threat to U.S. National
security. Any would-be VWP traveler whose ESTA application is denied is
referred to a U.S. Embassy or Consulate, where he or she would have to
undergo the normal process to apply for a visa, including an interview
by a consular officer and biometric screening.
DHS recurrently vets ESTA data on a daily basis, which means that
even though an applicant has an initially-approved authorization for
travel, the authorization is continuously screened throughout its
validity period against new derogatory information and is subject to
further review and subsequent denial if necessary. This includes
recurrent vetting against the TSDB (also known as the ``Terrorist
Watchlist''). CBP adjudicates every ESTA application and subjects those
that raise counterterrorism or admissibility concerns to additional
scrutiny.
ESTA has been a highly effective security and vetting tool that has
enabled DHS to deny travel authorizations under the VWP to thousands of
prospective travelers who may pose a risk to the United States, prior
to those individuals boarding a U.S.-bound aircraft or vessel. Since
ESTA's inception, CBP has approved more than 90 million ESTA
applications and has denied more than 5,900 ESTA applications as a
result of National security concerns. During that same period, CBP has
also denied more than 165,000 ESTA applications for individuals who
applied for an ESTA using a passport that had been reported as lost or
stolen.
In addition to ESTA screening, U.S. law requires all private and
commercial air carriers operating routes to, from, or through the
United States to provide Advance Passenger Information (API) and
Passenger Name Records (PNR) data to CBP. These data, which include
travelers' biographic and travel reservation information, are screened
against U.S. and international law enforcement and intelligence
databases to identify high-risk individuals before they depart for the
United States and, if they have somehow entered, when they travel by
air within the United States. All VWP travelers are subject to this
screening.
VWP travelers are also subject to additional layers of screening
and inspection upon arrival at U.S. POEs. CBP collects biometric
information from all VWP travelers and screens it against U.S. law
enforcement and intelligence databases. Moreover, CBP screens the
biographic information from VWP travelers' passports against additional
U.S. holdings. No VWP traveler who fails to clear these checks will be
admitted to the United States.
recent enhancements to the vwp
Over the last 15 months, DHS, DOS, the administration, and Congress
have initiated a series of changes to the VWP designed to strengthen
its security and ensure that the Program's requirements are
commensurate with the growing threat from foreign terrorist fighters,
especially those who are nationals of VWP countries. These recent
changes complement traveler vetting and the long-standing, statutory
and policy requirements that VWP countries must meet to maintain their
Program status.
Policy Enhancements
In November 2014, DHS introduced additional data fields to the ESTA
application that all VWP travelers must complete before boarding a
plane or ship to the United States. The enhanced ESTA data fields have
enabled CBP and the National Counterterrorism Center to identify a
larger number of applicants with potential connections to terrorism who
would not otherwise have been known.
On August 6, 2015, DHS introduced a number of additional security
enhancements to the VWP, including enhanced traveler vetting,
information sharing, and other security requirements for VWP countries
to further address any potential threat. Specifically, the August 2015
VWP enhancements require Program countries to:
Implement the Homeland Security Presidential Directive-6
arrangements and Preventing and Combating Serious Crime
Agreements by sharing terrorist and criminal information and
utilizing such information provided by the United States;
Collect and analyze travel data (API/PNR), consistent with
United Nations Security Council Resolution 2178, in order to
identify high-risk travelers, especially foreign fighters,
before they board in-bound planes and thereby keep such
travelers as far as possible from U.S. shores;
Use the INTERPOL Stolen and Lost Travel Document database to
screen travelers crossing the VWP country's external borders to
prevent the fraudulent use of passports by terrorists and
serious criminals;
Report foreign fighters to multilateral security
organizations such as INTERPOL or EUROPOL to enhance our
collective efforts to identify and disrupt terrorist travel;
and
Cooperate with the United States in the screening of
refugees and asylum seekers to ensure that terrorists and
criminals cannot exploit our system.
The August 2015 enhancements also introduced a requirement for all
VWP travelers to use electronic passports (e-passports) for travel to
the United States.\2\
---------------------------------------------------------------------------
\2\ Currently, citizens of the 27 countries designated into the VWP
before 2007 may use a machine-readable non-biometric passport if that
passport was issued before October 26, 2006 and is still valid.
---------------------------------------------------------------------------
Finally, in November 2015, the White House announced additional
steps it would take to further strengthen the VWP, to include, but not
limited to: DHS introducing further improvements to the ESTA
application that will grant the Department even greater insight into
prospective VWP travelers who have been to Syria, Iraq, and other
conflict zones; identifying possible pilot programs to assess the
collection and use of biometric information to effectively improve the
security of the VWP; and working with Congress to seek authority to
increase the Advanced Passenger Information System fines from $5,000 to
$50,000 for air carriers that fail to verify a traveler's passport
data.
Legislative Enhancements
On December 18, 2015, the President signed into law the
Consolidated Appropriations Act of 2016, which includes the Visa Waiver
Program Improvement and Terrorist Travel Prevention Act of 2015. The
new law codifies some of the August 2015 enhancements noted above (such
as the requirement for countries to fully implement agreements to share
information concerning travelers who might pose a threat to the United
States and for all VWP travelers to use e-passports) and puts in place
new requirements, most notably travel restrictions.
The law generally restricts VWP travel for nationals of Program
countries who are dual nationals of, or who have been present at any
time on or after March 1, 2011 in, Iraq, Syria, countries designated as
state sponsors of terrorism (currently Iran, Sudan, and Syria), or
other countries or areas of concern as designated by the Secretary of
Homeland Security. The physical presence-related VWP travel restriction
is subject to exceptions for individuals who the Secretary of Homeland
Security determines were present in Iraq, Syria, Iran, or Sudan in
order to: (1) Perform military service in the armed forces of a program
country, or (2) carry out official duties as a full-time employee of
the government of a program country. These exceptions do not apply to
the dual nationality-related VWP travel restriction.
Under the new law, the Secretary of Homeland Security may waive
these restrictions if he determines that such a waiver is in the law
enforcement or National security interests of the United States. On
January 21, DOS and DHS announced categories of travelers that provide
a framework to administer National security waivers on a case-by-case
basis. DOS worked closely with DHS to propose categories for which
individuals may be eligible. No waivers have been granted to date. As
Secretary Johnson has emphasized, determinations of whether an
individual ESTA applicant will receive a waiver will be based on a
case-by-case review.
DHS has taken several steps to implement the changes required by
the December 2015 law. In coordination with DOS, DHS has increased
outreach to all VWP partners to stress the importance of swiftly
implementing the required VWP information-sharing agreements. DHS has
also submitted to Congress two ESTA-related reports called for in the
legislation. Additionally, on January 21, 2016, CBP began to deny new
ESTA applications and revoke valid ESTAs for individuals who have
previously indicated holding dual nationality with Iran, Iraq, Sudan,
or Syria. More than 17,000 ESTAs have been denied or revoked to date.
Beginning January 13, 2016, CBP also initiated a protocol to identify
ESTA holders with travel to 1 of the 4 countries, to conduct secondary
screening and revoke ESTAs for future travel if travel is confirmed and
the Government and military exceptions do not apply. Finally, CBP began
notifying VWP travelers of the e-passport change in November 2015 and
will enforce the mandatory use of e-passports for all VWP travel by the
legislative deadline of April 2016.
An updated ESTA application with additional questions is scheduled
to be released early this year, to address exceptions for diplomatic-
and military-related travel provided for in the new law, and other
issues.
The new law does not ban travel to the United States, or admission
into the United States, and the vast majority of VWP travelers will not
be affected by the legislation. Any traveler who receives notification
that they are no longer eligible to travel under the VWP may still be
eligible to travel to the United States with a valid non-immigrant visa
issued by a U.S. Embassy or Consulate.
conclusion
The VWP is a rigorous, multi-layered risk assessment program that
promotes secure travel to the United States. VWP countries are required
to meet stringent security standards and to share extensive
counterterrorism and law enforcement information with the United States
in order to remain in the Program. VWP travelers are subject to
rigorous screening before departure to the United States and throughout
the travel continuum.
DHS, in concert with DOS, the administration, and Congress,
continues to strengthen its efforts to ensure that the VWP provides for
the security and prosperity of the American people. Consistent with
those efforts, DHS is taking good faith measures to implement the Visa
Waiver Program Improvement and Terrorist Travel Prevention Act
expeditiously and in keeping with Congressional intent.
As terrorists change their methods and tactics and technologies
continue to evolve, DHS and CBP will work with Federal and
international partners--as well as commercial carriers--to adapt and
respond swiftly and effectively to new and evolving threats. We will
continue to collaborate to strengthen on-going efforts and facilitate
the development of new innovative tools to secure international travel
against terrorists and others who threaten the safety of the traveling
public and the security of our Nation.
Chairman McCaul, Ranking Member Thompson, and Members of the
committee, thank you for the opportunity to testify today. I look
forward to answering your questions.
Chairman McCaul. Thank you, Commissioner. We appreciate
your service.
The Chair recognizes Ms. Johnson for her testimony.
STATEMENT OF HILLARY BATJER JOHNSON, DEPUTY COORDINATOR,
HOMELAND SECURITY, SCREENING, AND DESIGNATIONS, BUREAU OF
COUNTERRORISM, U.S. DEPARTMENT OF STATE
Ms. Johnson. Good morning Chairman McCaul, Ranking Member
Thompson, and distinguished Members of the committee.
Thank you for this opportunity to testify today on
implementation of the Visa Waiver Program Improvement and
Terrorist Travel Prevention Act of 2015. It is a pleasure to be
here today with Commissioner Kerlikowske.
My written statement, which I request be put into the
record, describes how the Department of State has worked
closely with the Department of Homeland Security to implement
this new law, while ensuring our top priority remains the
protection of the U.S. homeland.
As deputy coordinator for homeland security and State's
counterterrorism bureau, security of the homeland and the
safety of our citizens is my--citizens is my constant focus. I
welcome this legislation to strengthen the Visa Waiver Program.
The VWP is a key counterterrorism tool that helps protect
our homeland every single day. Our VWP partners must uphold
strict security standards, such as sharing information on known
and suspected terrorists and criminals, and reporting lost and
stolen passports to INTERPOL.
We use VWP benefits to encourage greater information
sharing and more systemic screening by our allies. VWP
requirements give our partners the impetus to tighten security
in ways that can be politically challenging for them.
The U.S. Government assesses each VWP country's compliance
at least once every 2 years, inspecting airports, sea ports,
land borders, and passport production and issuance facilities.
No other program enables the U.S. Government to conduct such
broad and consequential assessments of foreign partners'
security operations.
I would also like to underscore that the VWP is not a free
pass to travel to the United States. All travelers coming to
the United States undergo checks for ties to terrorism and are
subject to multiple layers of security, regardless of whether
they have a visa, or they come in under the VWP.
As the commissioner has noted, citizens of VWP countries
apply to enter the United States via the ESTA. CBP checks ESTA
forms against U.S. terrorist and criminal databases before
travelers are allowed to use the VWP.
This information that our partners provide, under the
information sharing, as part of the VWP, is a vital component
of our terrorist and criminal databases. The layer of security
continues beyond this step. All travelers are screened by CBP's
National Targeting Center before they board an airplane and
after they are admitted into the United States.
ESTAs are continuously reviewed and revoked immediately if
new intelligence comes to light. Watchlisting, screening, and
information intelligence gathering are some of the best tools
for countering the threat of foreign terrorist travel.
These tools are most effective when we are working in
collaboration with our VWP partners. That is why the VWP is
such an important counterterrorism partnership. The 38
countries that are part of the VWP include many of our closest
allies, and they are proud of their status. VWP membership is
so prized that many countries not in the VWP complete program
requirements in the hope of joining.
I would like to speak to the National security waivers
authorized under the law. Under the new law, the Secretary of
Homeland Security has the authority to waive restrictions, if
he determines that such a waiver is in the National security or
law enforcement interest of the United States.
We understand that Congress did not want to create blanket
exemptions to the law, and that is why these waivers will be
implemented on a case-by-case basis. After consulting with the
Secretary of State, the Secretary of Homeland Security has
determined that is the general matter, it is in the National
security interests of the United States to administer waivers
on a case-by-case basis and for certain types of ESTA
applicants.
I want to stress that these are not blanket waivers. Again,
the waivers would be administered on a case-by-case basis and
are narrowly tailored to specific National security interests.
We publicly outlined categories in which a waiver might apply
to provide guidance to citizens of VWP countries.
There is lot of confusion about this law among some of our
closest allies, and we needed to let them know which of their
citizens might receive a waiver and how the process would work.
We noted in our guidance that each ESTA applicant would be
considered on a case-by-case basis and reviewed carefully.
In no incidence is travel under the VWP guaranteed for a
person in one of the identified categories. I would like to
share some examples of why we think these narrowly-tailored
waivers are in our National security interest.
For instance, we rely on employees of the International
Atomic Energy Agency for the technical expertise to fight the
spread of nuclear weapons around the world. Yet, without a
waiver, IAEA employees, who went to Iran to pursue our National
security objective of preventing Iran from obtaining a nuclear
weapon, would be considered security risks.
Without waivers, UNHCR and World Food Program staff, who do
critical work helping refugees in Iraq or feeding starving
children in Darfur, Sudan, would be unable to travel to the
United States under the VWP.
The European Union is an essential partner to us around the
world. Without a waiver, representatives of E.U. institutions,
including E.U. parliamentarians, would be ineligible to travel
to the United States under the VWP.
Additionally, we work closely with officials of the E.U.
Counterterrorism Coordinator's office, who travel frequently to
Iraq. Without waivers, they would be denied ESTAs. These
waivers will allow us to maintain and build our relationships,
in cooperation with these institutions, toward shared
counterterrorism goals.
Business representatives or NGO employees, who have
traveled to Iraq to help with schools, roads, and hospitals,
also would be denied travel under VWP, even though they are
doing work we have encouraged to help stabilize and rebuild
that country's economy.
In Syria, the world relies on journalists facing grave
danger to report on human rights violations, allegations of
chemical weapon use, and the brutality of that on-going
conflict that we might otherwise never know about. Yet, without
waivers, they, too, could be denied VWP travel.
I recognize that participating in the VWP is a privilege
and not a right, but denying VWP participation to citizens of
member countries, who are doing work we promote and support, is
counter to our National security interests.
I want to stress, again, that every VWP travel considered
for a waiver will be closely examined to see if they meet the
stringent requirements to travel under the VWP. A case-by-case
application of waivers in these narrow instances, allows us to
advance our National security interests and directs our
resources to higher-risk threats.
As I have discussed, we believe there are significant
National security interests for the United States to utilize
this waiver, and we do so without compromising the safety of
our fellow citizens at home and overseas and the security of
the traveling public.
Mr. Chairman, Mr. Ranking Member Thompson, and
distinguished Members of the committee, thank you so very much
for having me here today. I look forward to your questions.
[The prepared statement of Ms. Johnson follows:]
Prepared Statement of Hillary Batjer Johnson
February 10, 2016
Good morning Chairman McCaul, Ranking Member Thompson, and
distinguished Members of the committee. Thank you for this opportunity
to testify today on implementation of the Visa Waiver Program
Improvement and Terrorist Travel Prevention Act of 2015.
My written statement, which I request be put into the record,
describes how the Department of State has worked closely with our
Department of Homeland Security (DHS) colleagues to implement the new
law while continuing to ensure that our first and utmost priority
remains the protection of the U.S. homeland and America's citizens.
I know Congress worked closely with the administration on this
legislation to strengthen the Visa Waiver Program (VWP) in order to
strike the appropriate balance between ensuring the security of the
homeland and allowing for legitimate travel to the United States.
Under the new law, individuals who are dual nationals of--or on or
after March 1, 2011 have traveled to--Iraq, Syria, a country designated
as a state sponsor of terrorism (currently, Iran, Sudan, and Syria), or
other countries of concern, are generally prohibited from using the VWP
for travel to the United States. The law grants the Secretary of
Homeland Security the authority to waive the travel or dual nationality
restrictions if he determines that such a waiver is in the law
enforcement or National security interest of the United States. No
waivers have been granted to date.
The State Department has worked closely with DHS to identify
several groups of potential VWP travelers that may be considered for
waivers on an individual basis based on the National security interests
of the United States.
It is important to clearly stress that these are not blanket
waivers. Rather, the categories of travelers that DHS and State
announced provide a framework to administer these National security
waivers on a case-by-case basis.
We felt it was necessary to publicly outline categories in which a
waiver might apply to provide guidance to citizens of Visa Waiver
Program countries. There is a lot of confusion about this new law among
some of our closest allies and trading partners. We need to let them
know which of their citizens could potentially receive a waiver, and
how the process for making those decisions would work. But it is
important to stress that our guidance says specifically that each
person would be considered on a case-by-case basis, and only if they
fall under one of the identified categories. In no instance is travel
under VWP guaranteed simply because an individual falls within one of
the identified categories.
Before going into more detail, I'd like to note that all travelers
coming to the United States undergo checks for ties to terrorism and
are subject to multiple layers of security--regardless of how they
enter, and regardless of whether they seek travel authorization through
the VWP or have a visa issued by the Department of State. Specifically,
the VWP leverages multiple layers of security to detect and prevent
terrorists, serious criminals, and other potentially dangerous
individuals from traveling to the United States.
Citizens of a VWP country need to apply for authorization to travel
to the United States via the Electronic System for Travel Authorization
(ESTA) program. CBP checks identifiers from ESTA forms against U.S.
terrorist and criminal databases before travelers are allowed to use
the VWP. DHS recurrently vets ESTA information on a daily basis,
meaning that each ESTA is continuously reviewed throughout its validity
period for new derogatory information.
All travelers are screened by CBP's National Targeting Center
before they board any flight bound for the United States. This vetting
continues after they get on an airplane and after they are admitted
into the United States. In the case of VWP travelers, they are
inspected by CBP Officers and their biometrics are collected upon
arrival.
Watchlisting, screening, and intelligence gathering are some of our
best tools for countering the threat of foreign terrorist travel. We
require all VWP countries to share with the United States information
about terrorists, serious criminals, and other mala fide individuals.
These tools are most effective when we're working in collaboration with
our VWP partners. And, that's what the VWP is, a security partnership.
The 38 countries that are part of the VWP include many of our
closest allies. They are proud of their status. In fact, VWP
designation is so prized that many countries that are not in the VWP
complete program requirements merely in the hope of one day joining.
Therefore, we are able to use the benefits of VWP membership as a way
to encourage greater information sharing and more systemic screening by
our allies.
VWP requirements provide our allies with the impetus to implement
security measures that can sometimes be politically challenging for
them, like amending legislation and updating their data privacy
frameworks. DHS, in cooperation with interagency partners, assesses
each VWP country's compliance with program requirements at least once
every 2 years. This assessment includes rigorous and thorough
inspection of airports, seaports, land borders, and passport
production/issuance facilities as well as continuous monitoring. No
other program enables the U.S. Government to conduct such broad and
consequential assessments of foreign partners' border security
standards and operations.
Because effective watchlisting and screening are among our most
effective counterterrorism tools, we continue to take advantage of the
strong partnerships that the VWP gives us to improve terrorist
screening by other countries and prevent threats to our country outside
of our borders.
Returning to the waivers, I'd like to take this opportunity to
provide insight into the factors that led the Department of State to
propose these specific National security waivers by outlining their
importance:
(1) International and Regional Organization Employees.--As a
general matter the United States has a strong National security
interest in supporting the work of the United Nations and other
international organizations, like the International Atomic Energy
Agency, as well as the work of elected officials from regional, sub-
national, or federal governments of Visa Waiver Program countries and
officials of the E.U. institutions or members of the European
Parliament. We would likely lose influence with these organizations
were we to tell them and the world that we see their employees as
security risks solely because of the official work they do in some of
the world's toughest places.
(2) Humanitarian Non-Governmental Organization (NGO) Workers.--As a
general matter it is in the U.S. National security interest to support
NGOs doing vital humanitarian work to alleviate human suffering, to
address basic needs of civilians in those countries such as delivering
food and medicine in conflict zones, and to identify serious human
rights abuses. Humanitarian assistance is also critical to meeting the
urgent needs of vulnerable civilians who are targets for extremist
groups, and maintaining regional stability.
(3) Journalists.--As a general matter the United States has a
National security interest in promoting the free flow of information
regarding events and activities in Iran, Iraq, Sudan, and Syria. For
example, we rely on such reporting for information on serious
violations of human rights, allegations of chemical weapons use, and
terrorist propaganda.
(4) VWP Country Nationals Who Traveled to Iran for Legitimate
Business Following the Conclusion of the JCPOA (July 14, 2015).--Our
unified diplomatic efforts with our partners were essential in setting
back Iran's nuclear program, something we can all agree is in our
National security interest. In some cases, treating an otherwise
eligible businessperson from a VWP partner country in Europe or
elsewhere as a heightened security risk because of their otherwise
legitimate business in Iran may warrant a waiver to avoid driving an
unnecessary wedge between the United States and our partners at a time
when we need to maintain a united front.
These are businesspeople from our closest European allies and other
partners who are often trying to travel to the United States to work
with American businesses, which will benefit our economy.
(5) Visa Waiver Program Country National who Traveled to Iraq for
Legitimate Business-related Purposes.--The United States has a National
security interest in ensuring the political stability of Iraq and
enabling the Government to effectively counter ISIL. One of the best
ways to achieve these goals is to support the country's weak economy;
this would include promoting commercial activities that support the
Iraqi government's revenue generation and directly impacts its ability
to fund its fight against ISIL. That is why since soon after the fall
of the Saddam regime in 2003, it has been the policy of the United
States to encourage Western companies to do business in Iraq to help
stabilize and rebuild that country's economy. Disadvantaging people who
traveled to Iraq expressly for that purpose would therefore be
counterproductive to long-standing U.S. policy.
I want to stress that none of these waivers would be administered
in a blanket fashion. Every VWP traveler potentially eligible for one
of these waivers would be closely and individually examined to
determine whether they are eligible to receive a waiver. And a National
security waiver would be carefully reviewed and only administered on a
case-by-case basis.
The law itself provides the Secretary of Homeland Security the
authority to waive the travel or dual nationality restrictions if he
determines that such a waiver is in the law enforcement or National
security interests of the United States. As I've outlined here today,
we believe there are significant National security interests for the
United States to utilize this waiver authority without compromising the
safety of our fellow citizens at home and overseas, and the security of
the traveling public.
Mr. Chairman, Ranking Member Thompson, and distinguished Members of
the committee, thank you for the opportunity to testify. I look forward
to your questions.
Chairman McCaul. Thank you, Ms. Johnson.
I now recognize myself for questioning. You know, after the
Paris attacks and the tragedy, the bill that Candice Miller
introduced that was marked up out of this committee, I met with
our Counterterrorism Task Force at the leadership level. We
decided that we needed to respond, in an urgent manner, to the
attacks. We moved this bill forward to go to the floor of the
House.
Let me just say, Ms. Johnson, I recognize you are a career
diplomat. We asked for somebody at the political level to
answer the political questions that I am getting ready to ask
you. So I just want to say that I understand the position you
have been put in by the administration.
But, having said that, as we were deliberating the
introduction of the bill on the floor, that had been marked up
by this committee, we had discussions at the leadership level,
in both House and Senate, and also with the White House, State
Department, and Department of Homeland Security.
We had--there was an email exchange. I think it is very
enlightening, in terms of looking at the express intent of this
law. We came to, both State, Department of Homeland, and the
White House. We got this response: Would you please consider an
exception for humanitarian purposes, for business purposes, for
journalistic purposes?
I remember, I was in the meeting with the Majority leader
of the House and the other 3 National security committee
Chairmen. We discussed your proposal, the proposal that came
from the Department. That proposal was rejected on all counts,
expressly rejected by the framers and the authors of this
legislation in the Congress.
The response that we got, when we came back with: You know
what? We are going to reject your business, journalistic,
humanitarian, cultural, education exceptions. The response we
got was actually pretty clear cut. The response was, ``The
administration supports this legislation.'' ``Thanks to all.''
My point is, there is no ambiguity in the intent and
express language of the statutes. It seemed to me, at the time,
that the administration was fully on-board with the rejection
of these exceptions.
Then, finally, we got an email from the White House, after,
saying: Does State have any additional edits? The response from
the White House was: I have spoken to State. They don't request
any additional edits. Don't request any changes at this time.
As I said this morning, we are good with the text as drafted.
In fact, reopening the bill would require us to look at it
again.
In other words: Let's move forward with the bill. You know,
the very day this bill was signed into law, Secretary Kerry was
meeting with Iranian officials. Apparently, Iran didn't like
the language that Congress had passed, that was going to the
President's desk.
The very next day, the very next day while the ink was
still drying on this President's signature, the Secretary of
State sends a letter to the Iranian Foreign Affairs Minister,
saying thanks for the constructive meeting yesterday. I want to
get back to you in response to your inquiry about our
amendments to our Visa Waiver Program.
Basically, he says in his letter, the administration has
the authority to waive, and this will not prevent us in any way
from meeting our commitments under the deal, the Iranian deal.
We will implement them so as not to interfere with legitimate
business interests of Iran.
I guess my question to you is: Isn't it clear, given the
exchange that we have between the administration and the
Congress and the clear language of the law, isn't it clear that
these exceptions that are not in the law that were expressly
rejected by the Congress?
Ms. Johnson. Thank you, sir. On that question, in
particular, the text of the law is very clear. The Secretary of
Homeland Security may waive the travel and dual national
restrictions, if he determines that such a waiver is in the law
enforcement and National security interests of the United
States.
After consulting with the Secretary of Homeland--Secretary
of State, the Secretary of Homeland Security has determined
that, as a general matter, it is in the National security
interests of the United States to administer waivers for
certain types of ESTA applicants. Whether those ESTA applicants
will receive a waiver will be determined on a case-by-case
basis.
We heard your concerns about not wanting blanket exemptions
or waivers.
Chairman McCaul. But my--wasn't--these exceptions, the
humanitarian, journalistic--you know, I understand the
arguments on the merits, but we debated that in the Congress,
and we rejected those exceptions, business, humanitarian,
journalist, cultural. Those are not in the law, are they?
Ms. Johnson. No. These are not blanket exceptions, and they
are not blanket waivers.
Chairman McCaul. It seems to me that the Secretary of State
is creating exceptions that were not--that are not in the law
itself. In fact, he is redefining--in fact, he is rewriting the
law that we wrote out of this committee.
Ms. Johnson. The text of the law says that if it is in the
law enforcement or National security interests of the United
States, they can be waived, the dual national and the travel
restrictions could be waived.
Chairman McCaul. Yes, it seems to me, though, the time to
object is prior to signing the bill into law, not after. I
think that, in my view, the administration didn't like the
response they were getting from the Congress, so they just said
go ahead and pass it. We will sign the law and then we will
just interpret it the way we want to, defying the will and
express intent of this Congress.
Ms. Johnson. This is not intended to be blanket, again,
exemptions or waivers. The intent was to look at these in a
very narrowly-focused way, on a case-by-case basis. These
waivers will be reviewed very closely, as we mentioned in the
terrorist travel prevention cell at the National Targeting
Center.
Just because somebody might fall into one of those
identified categories, there is no expectation that they
automatically are receiving an ESTA.
Chairman McCaul. Well, I appreciate your opinion, but I
don't think you can break the law on a case-by-case basis.
The fact is--and Mr. Commissioner, I just--were you
consulted about this at all? Did they come to you and say, you
know what we are going to, even though Congress explicitly
rejected these exceptions, you know, we are going to put them--
that is going to be our interpretation. Were you consulted?
Mr. Kerlikowske. I was not consulted concerning the letter
that went out shortly after by the Secretary, by Secretary
Kerry. I can tell you that there has been a huge amount of
consultation and work, in a team effort, every moment since.
Chairman McCaul. I mean, it seems to me that, you know, in
our effort to put Iran first and the Iranian negotiation first
and appease Iran, the State Department made a call overriding,
basically, breaking the law that we passed, and then went to
you and said, you know what? This is our interpretation. It is
your job to implement it, and they put it on your lap. Is that
a fair assessment?
Mr. Kerlikowske. I would say the assessment is more of
this, is that Secretary of Homeland Security, Secretary
Johnson, made it explicitly clear to me 2 days ago, until there
is a process in place in the cell, that absolutely no waiver
would be granted.
Further, I think that the fact that we will work together
and even though, as Hillary mentioned, these--this framework
provides information, it doesn't mean that someone that applies
as a journalist, or as some type of request in that way, will
actually even be granted that. Of course----
Chairman McCaul. Well, this committee will be providing
that oversight. We have requested documents from both of your
departments, and I hope you will comply with that request. This
committee does have subpoena power. We will be looking at the
case-by-case analysis and make our judgment as to whether that
is a National security issue.
But you have been in law enforcement, sir, for many, many
years. Do you really believe that doing business in Iran rises
to level of a National security interest?
Mr. Kerlikowske. I think there are two issues that are
really important in this, and one is that many of the
organizations, people that are from Visa Waiver partners,
Germany, Sweden, France, et cetera, either as dual nationals,
who, by the way, have already been cancelled, but many of those
individuals in those countries want to do or are going to do
work.
We share vital security information every day with those
Visa Waiver Program countries. Keeping good communication, good
relationships, the ability to sign those international
agreements with them is critical.
So I certainly see the nexus with the National security
interest in some parts. But, again, I would go back and say it
doesn't mean that if an application is received in one of those
framework areas that it would necessarily be granted. We would
look at it very carefully, and Secretary Johnson would look at
it very carefully.
Chairman McCaul. The Congress will be looking at this very
carefully, as well. I gotta tell you, I am--this really defies
the will and express intent of the law that we passed in the
Congress. I am very--I am deeply disturbed by this, and this
committee will be exercising its oversight authority very
strongly on this.
We are not saying they can't come into the country. We are
just saying they have to go through the extra, additional layer
of security and apply for a visa. In my opinion, once again,
the President has put the best interests of Iran over the
security interests of the American People.
With that, I recognize the Ranking Member.
Mr. Thompson. Thank you very much, Mr. Chairman. I think it
is clear that Congress spoke in as clear a fashion as it could
when this language was put into the omnibus. There is concern
that since that language has been included, there has been a
different interpretation.
Now, Ms. Johnson, can you tell the committee the exact date
the State Department made the decision to offer exemptions in
the broad category?
Ms. Johnson. Just to be clear, these are not exemptions.
They are waivers, again, as under the law. This--there is an
on-going process and discussion with our counterparts at the
Department of Homeland Security, and we announced that decision
on January 21, with the Department of Homeland Security.
Mr. Thompson. So you don't see a waiver and an exemption as
the same thing?
Ms. Johnson. No. The waivers are--again, we are not talking
about blanket waivers. These are done on a case-by-case basis.
Each individual is reviewed very carefully. Again, as mentioned
here, both by the commissioner and myself, just because
somebody might fall into one of those categories does not mean
they would be granted a waiver.
Mr. Thompson. Were you involved in this process to----
Ms. Johnson. Yes, sir.
Mr. Thompson. At what level?
Ms. Johnson. I am a deputy coordinator. So I was working
with my counterparts, but it has been from the working level
all the way up through my level, and all the way up. This is a
very important issue.
Mr. Thompson. The decision to write the press release and
the other things, were you involved in that?
Ms. Johnson. Yes, sir.
Mr. Thompson. Mr. Commissioner, your testimony is that no
waivers have been granted at this point.
Mr. Kerlikowske. Correct.
Mr. Thompson. Can you tell me the financial burden to
review these waivers on a case-by-case basis? What does that
pose for you as an agency?
Mr. Kerlikowske. So, I can't tell you the number of people
or what the number of applicants would be, or what the number
actually would be expected. I can tell you that the National
Targeting Center, and particularly by standing up this cell
with our partners at the Department of State is helpful, but
that National Targeting Center is incredibly flexible and
agile.
If you go back to the Ebola crisis with well over 30,000
people then with travel from one of those Ebola-affected
countries, our Customs and Border Protection people, an
organization of over 60,000 personnel, could move very quickly
to address these types of things.
Whether it was in the air cargo attempted bombing, or
others--but I don't know the numbers.
Mr. Thompson. So you don't know?
Mr. Kerlikowske. I don't know what we would expect, and
then how long it would take to carefully and thoroughly vet or
screen anyone who made that request.
Mr. Thompson. So you don't anticipate coming back to
Congress asking for additional monies to support this effort?
Mr. Kerlikowske. In the President's budget request that has
gone up, there is a request for 40 additional personnel for the
National Targeting Center. Now, I would tell you that that is
not based upon, particularly, this, which came about very
quickly.
But the fact that that National Targeting Center has proved
invaluable, whether it is for Ebola or whether it is screening
foreign fighters. It is--as many Members of Congress have
visited it, it is a very important and necessary organization
that needs to be adequately staffed.
Mr. Thompson. So we included a new provision in the law
with that announcement. Ms. Johnson, what went into producing
that press release that you participated in, and what were the
financial implications of this new provision?
Ms. Johnson. Do you mean financial implications to the
State Department, or----
Mr. Thompson. Yes.
Ms. Johnson. That I would have to take back. I don't know
the answer to that question. The working level, the mid-level
and higher levels, all of us, as we normally do with press
releases, worked very closely together with our Department of
Homeland Security colleagues.
Mr. Thompson. So at the--you are a witness before us today,
indicating that you participated in the drafting of a document,
but nowhere in the drafting did anybody talk about what this
new effort would cost?
Ms. Johnson. No on cost, at least in any discussions I was
involved in. The threat cell of the State Department already
participates in the National Targeting Center over at CBP, and
we also work very closely with DHS on a regular basis with the
screening capabilities.
Mr. Thompson. Well, Mr. Commissioner, did you participate
in the drafting of the press release?
Mr. Kerlikowske. I did not.
Mr. Thompson. So one agency drafted the release, and the
responsibility was put on you?
Mr. Kerlikowske. Well, I think there is a very--I would
tell you that many people within Customs and Border
Protection--I have broad authority over a very large number of
issues. Our people, as she stated, our people participated very
closely and worked on all of the aspects that have been
mentioned. I did not, myself.
Mr. Thompson. You were aware of it?
Mr. Kerlikowske. I have been aware of the--certainly, of
the law as it was being debated, yes.
Mr. Thompson. Mr. Commissioner, I know you were aware of
the law. But you understand where I am getting at. In terms of
the drafting of the release and the cost associated with this
new process, Ms. Johnson just said she wasn't involved at that
level.
So, obviously, you are the only other witness we have. Is
your testimony, you were not involved in that either?
Mr. Kerlikowske. I was not involved in the drafting of the
press release, but I certainly have been involved in how CBP
would work to enforce the new law passed by Congress and signed
by the President.
Mr. Thompson. After the fact.
Mr. Kerlikowske. After the fact.
Mr. Thompson. Not the law, now, but the drafting of this
new waiver or exemption provision.
Mr. Kerlikowske. I was not involved in the drafting of the
categories or the framework.
Mr. Thompson. Thank you.
I yield back.
Chairman McCaul. Chair now recognizes the author of the
Visa Waiver Program bill, Mrs. Miller.
Mrs. Miller. Thank you, Mr. Chairman. I certainly
appreciate you holding this hearing today. This is an important
issue, and I appreciate the witnesses being here.
Ms. Johnson, as the Chairman mentioned, you are a career
diplomat, not really a political type. I think we would have
preferred someone--because it seems to me to be a political
determination made by this administration.
You mentioned, in your testimony, there, you were
mentioning various people, people or groups, that would be
inconvenienced by this bill. But, again, as the Chairman
mentioned, these issues were not either raised, or they were
negotiated away during the negotiations. He did put up some of
these slides. I won't ask the staff to do that again.
But I will just mention these, because I think it does bear
note, here, because we were negotiating, we, being the
Congress, were negotiating in very good faith with the White
House and the various agencies included.
Here is a--and this particular issue, by the way, somebody
mentioned and it sort of went quickly because it went in the
omni, but the reality is, really, we had introduced this
legislation a couple of years ago and then, again, reintroduced
it during this Congress.
It went through--we had a number of hearings. Mr.
Commissioner, you have been--you had the opportunity to testify
before our subcommittee, as well as the full committee, as
well, on numerous occasions.
So this is an issue that went through regular order,
through our subcommittee, through our full committee. We were--
there were many, on both sides of the aisle, who were very
desirous of having floor action on this. We were, you know,
really--then came Paris. So, we had this bill ready to go, and
that is really how it ended up in the omni, there, at the end.
But at one time we were--these emails showing--I was just
going to briefly say, proposed exemptions for journalists,
relief workers, business and humanitarian travel, they accept
only exemptions for government officials and military personal.
Okay. Everybody agreed to that, when we were negotiating this
just 3 months ago.
Here is another email. Negotiations continue, bipartisan
House committee leadership staff--bipartisan. The White House,
the Department of Homeland Security, State Department, the
exemption for humanitarian travel are, once again, rejected by
everybody. Rejected. Here is the email that was up on the
screen. The administration supports this legislation, thanks to
all.
Then here is another one. I am not going to say who sent
all these, but here, ``I have spoken to State. They do not
request any additional edits. The administration does not
request any changes at this time.''
So I just point those out, because it is certainly clear, I
believe, abundantly clear, that the White House negotiated in
very bad faith. Again, it is not a partisan issue. It is a very
bipartisan issue, and I don't know how Congress can come to an
agreement with the White House, with an administration that
simply turns around and then breaks the agreement, certainly
violates the law, in my estimation, as well.
So, I guess, my question, Ms. Johnson, you know, to be very
clear of the changes of the law, they don't bar people who have
traveled to either Iran, Iraq, Syria, or Sudan from entering
the country. They just simply have to go through the same
processes that countries in 100--people from 150 other
countries have to use, when they come into the country.
I would say, Ms. Johnson, do you think, from the Department
of State, do you think that the visa interview is an
unreasonable bar for an individual who actually has visited a
country that is a state sponsor of terrorism?
Ms. Johnson. Thank you for the question. I mean, the visa--
sorry, again, under the Visa Waiver Program, it is important to
note that all of those travelers go through the same rigorous
screening as visa applicants do.
So, I think if visa applicants, obviously, have an
interview and biometrics are collected--that is really only the
difference that takes place between the Visa Waiver Program and
a visa interview.
I think the important question is, I know for some people,
for particularly our Visa Waiver Program partners, a visa
interview and a visa process, the whole point of the Visa
Waiver Program for them is, they are going through and meeting
these stringent security standards.
They are participating in this counterterrorism partnership
with us that actually enhances our National security quite
beneficially, because, again, the information that we receive
from them on known and suspected terrorists and criminals goes
into our databases, and we screen against that.
So having a number of individuals, affected individuals,
who have traveled to these countries under these--traveled to
these countries, be treated as a heightened security risk,
because we may have been doing legitimate business in Iran or
might be a humanitarian worker in Darfur, I think it is been a
real big effect for our foreign partners under the VWP.
In fact, I met yesterday with one country who was very
concerned about this. They fully respected the VWP's stringent
security requirements, and they certainly want to respect and
focus on the security of the U.S. homeland. But they were very
concerned about the fact that their citizens are treated as
heightened security risks, when they are conducting National
security-related activities.
Mrs. Miller. Thank you.
Mr. Chairman, I know my time is out. If I had more time, I
would ask a question about are there any limits to their
interpretation to these individuals, and maybe someone could
ask--could we have an example of what is the limit of their
interpretation of who could have a waiver?
Chairman McCaul. I would just add, if the ESTA program is
better than the VISA process, why did we even pass the bill in
the first place? The Chair recognizes Mr. Payne.
Mr. Payne. Thank you, Mr. Chairman and Ranking Member.
Commissioner, while the recent VWP legislation prohibits
individuals with recent travel to citizenship in Iraq, Iran,
Sudan, or Syria from traveling to the United States under the
program, it authorizes the Secretary of Homeland Security to
issue the waiver, if in doing so in the law enforcement or
National security interests of the United States.
What circumstances would warrant a waiver? What process
will be used to determine whether a traveler would be issued a
waiver? What role will CBP play in that process?
Mr. Kerlikowske. So the process that would be outlined for
us, standing up this cell at our National Targeting Center,
would be this. The request would come in. For example, if it is
a non-governmental organization doing humanitarian work, that
Electronic System for Travel Authorization, ESTA, has a new
series of questions.
Those questions will be ready and be on-line by February
23. The questions involve not only, of course, have we
identified that person, but what organization do you work for.
Is the organization noticed by the United Nations for
humanitarian work?
Who would be the person that would say that you are an
employee and that the work that you were doing in that country
is part of that nongovernmental or humanitarian organization?
What--you were there, in fact, on their behalf and doing their
work.
Any derogatory information would result in a default
position, where they would be denied travel and then told to go
to a United States embassy or a consulate. So that is an
example of the kinds of questions we would ask.
Mr. Payne. To the both of you, if Congress were to
temporarily suspend the VWP, what would be the ramifications
for State and DHS? What impact would there be on embassies and
consulates in VWP countries? What impact would there be on CBP
operations? Also, what impact would there be on U.S. business
interests and U.S. travelers to VWP countries?
Mr. Kerlikowske. From the Customs and Border Protection
standpoint, the information that we get from ESTA, which has
been around many decades and 90 million people have traveled,
many more people--many people, of course have been denied
entry, as a result of that information.
All of that combines together. These countries that have
been talked about that are members of VWP are great partners.
We secure information and share information with them. We
depend on them. We are only going to be a safer country when,
in fact, we engage in those kinds of things.
I would think the suspension of ESTA, the suspension of
VWP, would have some significant effects on those relationships
and that ability that we have now to share information. At our
National Targeting Center, we have members from--who have been
fully vetted from other organizations in other countries.
So working together is critical, and I think the VWP
program is a security and safety program, as much as in the
past, when it was designed to facilitate tourism and the ease
of travel. It is a security program now.
Mr. Payne. Ms. Johnson.
Ms. Johnson. I would absolutely echo everything the
Commissioner just said. I mean, again, and as I mentioned in my
opening remarks, this is a--a hugely beneficial
counterterrorism tool, particularly for the United States,
because of the information we receive from these foreign
partners, but, also, for those foreign partners, again, which
are key allies and trading partners, for their security.
They take our information and they screen against it. So it
is a hugely collaborative counterterrorism partnership. I know
that it would be a very big impact against--on that
relationships that we have with those countries, both on the
counterterrorism side, but for foreign policy reasons, as well,
certainly, from sitting at the State Department.
I sit in the counterterrorism bureau. I see how that
partnership is extremely important, and I think we can leverage
that partnership to a variety of degrees. The VWP security
requirements, I just want to note, have become kind of
universal standards, as well, for importance for
counterterrorism tools, broadly.
A number of these security requirements are now, again,
best practices that we have highlighted in U.N. Security
Council resolutions, particularly, UNCSCR 2178, to combat
terrorist fighters. So other countries, beyond the VWP, are
benefitting from those kind of lessons learned.
So, I think, we would have a huge--a huge negative impact.
I can't answer on the economic side, but I know it is a very
large contribution to our economy, because it is a reciprocal
program, and, certainly, for our foreign partners, as well.
Mr. Payne. My time is up. I just think, Mr. Chairman, those
are some things that we should keep in the back of our minds,
as we move forward on this discussion.
I yield back. Thank you, sir.
Chairman McCaul. The Chair recognizes Mr. Duncan.
Mr. Duncan. Thank you, Mr. Chairman.
Mr. Commissioner, could you define, as in the law, what law
enforcement and National security interests of the United
States are?
Mr. Kerlikowske. I think the law enforcement interest is a
narrower interest and would be involving where someone is
coming back into the United States, and, as the Chair
mentioned, would be under surveillance, or we would want to
have, because that person is being targeted. Perhaps, that
person is also being part of extradition.
The National security interest, as has been explained, in
keeping Visa Waiver Program countries in partnership, in
collaboration with us on information sharing, on using these
finite resources to take a look at that.
Mr. Duncan. Thank you.
Mr. Kerlikowske. Remember, these are just frameworks.
Mr. Duncan. Thank you. I appreciate that.
Mr. Kerlikowske. Sure. Okay.
Mr. Duncan. I want to go back to what Mrs. Miller was
talking about. During the negotiations, there were proposed
exemptions for journalists, relief workers, business and
humanitarian travel, and they were rejected. It goes on to say,
later, that the DHS, State Department, leadership staff, the
White House, the exemptions for humanitarian travel were, once
again, rejected, due to Members' concerns.
Ms. Johnson, are you aware of a State Department memo,
``VWP Waiver Recommendation Paper''?
Ms. Johnson. I believe so, yes.
Mr. Duncan. Internal memo?
Ms. Johnson. Yes.
Mr. Duncan. Okay.
Mr. Chairman, I would like to, without objection, I would
like to submit this for the record and ask all the committee
Members to actually read this at some point.
Chairman McCaul. Without objection, so ordered.
[The information follows:]
Submitted For the Record by Hon. Jeff Duncan
VWP Waiver Recommendation Paper
The Visa Waiver Program Improvement and Terrorist Travel Prevention
Act of 2015, enacted as part of the Consolidated Appropriations Act,
2016, amended the Immigration and Nationality Act to make ineligible
for participation in the Visa Waiver Program (VWP) any person who has
been present in Iran, Iraq, Sudan, or Syria since March 1, 2011, with 2
very limited exceptions (travel to perform military services in a VWP
country's armed forces and travel to carry out official duties as an
employee of a VWP government).
The law gives the Secretary of Homeland Security authority to waive
this ineligibility if the Secretary determines that such a waiver is in
the law enforcement or National security interests of the United
States. As discussed in the legal paper, this is a lesser standard than
that imposed by other statutes that require a finding that a waiver is
``vital to'' or ``essential to'' the National security interests of the
United States. Furthermore, there are no findings of fact or other
determiniations required to be made before exercise of the waiver
authority. Additionally, as discussed in the legal paper, the National
security waiver can be exercised by category, not just individuals.
State recommends waivers for the following classes of persons:
1. Business-related travel to Iran following the conclusion of the
JCPOA (July 14, 2015).
Rationale.--The VWP legislation and its implementation do not
violate U.S. commitments under the JCPOA. Nevertheless, these
provisions do have the potential to cause citizens of VWP countries to
hesitate to travel to Iran for business, which could adversely affect
normalization of trade with Iran and, in turn, Iran's commitment to
implementing the JCPOA. Moreover, these provisions could adversely
affect the strength of our partnership with the E.U. and with non-E.U.
states in addressing Iranian (and other) issues. Thus, it is in the
National security interest of the United States to waive the VWP
ineligibility for individuals who have traveled to Iran for legitimate
business purposes after July 14, 2015, or will travel to Iran for
legitimate business purposes in the future.
Iranian Dual nationals.--This category should also include dual
nationals of Iran who have traveled to Iran for legitimate business
purposes since that date. Including dual nationals is appropriate for
both of the National security reasons listed above, since these
individuals will be important facilitators for companies that want to
trade with Iran.
Legal argument.--This limited approach is directly tied to JCPOA
implementation and avoids burdening close allies whose nationals
traveled to Iran for legitimate business purposes after the deal was
concluded. As discussed in the legal paper, this approach is defensible
based on the specific National security interests associated with
maintaining the strength of international partnerships, as well as
JCPOA implementation. DHS, in consultation with State, would have to
determine what business travel would be viewed as ``legitimate'' and
hence covered by the waiver. A baseline would be travel to Iran for
business-related activities that were not prohibited or sanctionable
under U.S. law and regulations or pursuant to UNSC resolutions at the
time when the travel occurred.
Specific ESTA language.--Questions should be added to elicit
whether individuals traveled to Iran for legitimate business purposes.
Possible questions include: ``Was your travel to Iran after July 14,
2015? If yes, was the travel for business purposes? If yes, please
describe the travel, including the company or other entity for which
you were traveling and all entities in Iran with which you had
dealings.'' This last question would require some manual intervention
by DHS to ensure the travel was for ``legitimate business purposes,''
so State and DHS need to collaborate on the mechanics of such an
approach. If it was considered important to elicit further information
to validate the applicant's answers to these basic questions,
additional questions that could be considered might include: For a dual
national, whether the individual traveled with family members to Iran,
as this could be an indicator that the purpose of travel was not solely
business. Additionally, the travel question could ask, was the travel
exclusively/solely for business purposes?
2. Employees of International and Regional Organizations and Sub-
National Governments who traveled on official duty.
Rationale.--The current law does not include an exemption from
ineligibility for: Employees of international organizations such as
U.N. officials, IAEA inspectors, and employees of international
humanitarian organizations; officials of the E.U. institutions or
members of the European Parliament; sub-national parliaments of VWP
countries; or similar bodies. It is in the National security interest
of the United States to waive the VWP ineligibility for individuals who
traveled to Iran, Iraq, Sudan, or Syria on or after March 1, 2011, on
official duties on behalf of one of these institutions.
Dual nationals.--This category should also include dual nationals
who are employees of one of these institutions, regardless of whether
the individual has traveled to 1 of the 4 countries. Otherwise, we
would undermine our National security interest in maintaining
relationships with these institutions by placing restrictions on
certain employees of these institutions.
Legal argument.--As discussed in the legal paper, the United States
has a National security interest in: (1) Supporting engagement and
other activities conducted by such institutions in each of these
countries; and (2) maintaining strong relations and enhancing
cooperation with those entities on a variety of objectives, including,
among other things, counterterrorism, nonproliferation, and
humanitarian assistance in conflict zones.
Specific ESTA language.--The ESTA form could include a drop-down
question asking whether the individual traveled to 1 of the 4 countries
for official duties as an employee of 1 of the following entities, with
a list of specific institutions or categories of institutions to choose
from.
3. Employees of Humanitarian Non-Governmental Organizations (NGO) who
traveled on official duty.
Rationale.--VWP country citizens who have worked for humanitarian
NGOs in any of the 4 countries since March 2011 would be ineligible for
the VWP.
Legal argument.--It is in the National security interest of the
United States to waive the VWP ineligibility for individuals who
traveled to Iran, Iraq, Sudan, or Syria on or after March 1, 2011 on
official duties on behalf of non-governmental humanitarian
organizations who, for example, provide humanitarian assistance in
those countries. We could consider including employees of other NGOs
that promote other specific objectives that are in the U.S. National
security interest, such as NGOs from VWP countries doing work in Iran,
Iraq, Sudan, and Syria that supports the U.S. National security
interest in the advancement of civil society in repressive
environments. Further, this restriction may have the consequence of
making it more difficult for these organizations to recruit personnel
from VWP countries, which would impact programs aimed at helping
civilians in those countries.
Dual nationals.--Since the National security interest is in the
promotion of the work of these NGOs, this category should also include
dual nationals who are employees of one of these NGOs, regardless of
whether the individual has traveled to 1 of the 4 countries. Otherwise,
we would undermine our National security interest by placing
restrictions on certain employees in these organizations.
Specific ESTA language.--The ESTA questions could include a drop-
down question asking whether the individual traveled to 1 of the 4
countries as an employee of such an NGO. A possible follow-up question
would ask on behalf of which organization did the individual travel.
Again, this may require some manual intervention by DHS regarding the
legitimacy of the named NGOs.
4. Accredited Journalists who traveled for reporting purposes.
Rationale.--The current law does not include an exemption from
ineligibility for journalists, who are essential for understanding the
situation in Iran, Iraq, Syria, and Sudan.
Legal argument.--The United States has a National security interest
in promoting the free flow of information regarding events and
activities in Iran, Iraq, Sudan, and Syria. A waiver of the VWP
ineligibility for accredited journalists who traveled to Iran, Iraq,
Sudan, or Syria on or after March 1, 2011, would help facilitate this
National security interest of the United States.
Dual nationals.--This category should include dual nationals who
are accredited journalists and traveled to 1 of the 4 countries,
especially in Iran. As a result, excluding this group could have a
significant impact on the promotion of the free flow of information.
Specific ESTA language.--The ESTA could include a drop-down
question asking whether the individual traveled to 1 of the 4 countries
as an accredited journalist. A possible follow-up question would ask on
behalf of which organization did the individual travel.
5. Dual-Nationals who emigrated from Iran in the aftermath of the
Revolution.
Rationale.--The current law excludes individuals who emigrated from
Iran in the wake of the Revolution. This is a distinct group who merit
special treatment.
Legal argument.--The United States has a National security interest
in Iran moderating politically over time. Penalizing those who
emigrated from Iran in the aftermath of the Revolution runs counter to
this objective because it alienates a group that largely support the
United States' goal of encouraging Iran to moderate politically.
Specific ESTA language.--The ESTA could include a drop-down
question asking a dual national from Iran, when he/she emigrated out of
Iran. Further discussions are needed to assess the appropriate year for
categorizing those who emigrated in the aftermath of Revolution.
6. Dual-Iranian nationals who were born outside of Iran.
Rationale.--The current law excludes nationals of a VWP country who
are also nationals of Iran, even if the Iranian nationality was
acquired by operation of law, rather than an affirmative act by the
individual.
Legal argument.--The United States has a National security interest
in Iran moderating politically over time. Penalizing those who were
born outside of Iran runs counter to this objective because it
alienates a group that largely support the U.S. goal of encouraging
Iran to moderate politically.
Specific ESTA language.--No additional language is needed.
7. Dual-Iranian nationals traveling to the United States for business
purposes or as part of official duties as an employee of a
Humanitarian Non-Governmental Organizations (NGO).
Rationale.--The current law excludes nationals of a VWP country who
are also nationals of Iran from traveling to the United States under
the VWP. While this would be a broad category to include in a waiver,
this group is engaged in activity that is important for the U.S.
National security interest. Placing restrictions on humanitarian
employees will make it harder for those organizations to recruit
personnel from VWP countries, which would impact programs aimed at
helping civilians in those countries.
Legal Argument.--The United States has a National security interest
in promoting business and humanitarian ties with our closest allies in
VWP countries. The United States also has a National security interest
in Iran moderating over time, and thus in not alienating those who
largely support that U.S. goal. Placing restrictions on dual nationals
from Iran engaging in these activities will undermine that interest.
Specific ESTA language.--ESTA questions would need to be updated to
seek the purpose of the travel to understand whether it was solely for
business purposes or as an employee of a humanitarian NGO on official
duties.
8. Business-related travel to Iraq
Rationale.--We have a National security interest in ensuring the
political stability of Iraq and enabling the government to effectively
counter ISIL. One of the best ways to achieve these goals is to support
the country's weak economy, which is overly dependent on declining oil
revenue and is a threat to Prime Minister Abadi's ability to govern.
That is why the United States has spent years trying to encourage
international investment in Iraq, not only in oil infrastructure, but
also in diversifying the economy to increase its resilience. The
current law would undermine these efforts and our National security
interests by placing restrictions on citizens of VWP countries who
traveled to Iraq for business and engaged in key commercial activities
that support the Iraqi government's revenue generation and directly
affect Baghdad's ability to fund its fight against ISIL.
Legal argument.--This approach is defensible based on the specific
National security interests associated with maintaining the stability
of Iraq and enabling the government to focus on countering ISIL.
Specific ESTA language--Questions should be added to elicit whether
individuals traveled to Iraq for business purposes. Possible questions
include: ``Was your travel to Iraq after March 1, 2011? If yes, was the
travel exclusively for business purposes?
Mr. Duncan. Thank you.
Within that paper, it talks about law enforcement and
National security interests. It also references a legal paper.
So I am assuming that is a white paper within this white paper.
Are you familiar with that legal paper?
Ms. Johnson. Yes, sir. I am.
Mr. Duncan. Has that been provided to this committee?
Ms. Johnson. I would have to go back and check. I don't
know.
Mr. Duncan. Has any--Mr. Chairman, do you know if that----
Chairman McCaul. Thus far, we have had no document
production. I believe the deadline is this Friday.
Mr. Duncan. Okay. I would request that that legal paper be
provided, because I think it is important.
This white paper, Visa VWP Waiver Recommendation Paper,
says that there are no findings of fact or other determinations
required to be made before exercise of the waiver authority.
Let's talk about this. Why does it state that? Why does it
state that there are no findings of fact or other determining--
determinations required to be made before the exercise of waive
authority? Why does it say that in the State Department's white
paper?
Ms. Johnson. I am not a lawyer, but I know that the text of
the law is clear that the Secretary of Homeland Security can
utilize the waiver to waive the dual national and travel
restrictions, if it is in the law enforcement and National
security interest of the United States.
Mr. Duncan. It was shown very clearly by Mrs. Miller, and
during the negotiations, that the intent of Congress, as the
Chairman pointed out, was to not offer visa waivers to these
classifications of people.
But, yet, the State Department will come out, after the law
was signed, with an internal document that references another
legal paper to say we are gonna allow business-related travel.
We are gonna allow people from international and regional
organizations, some national governments. We are gonna allow
humanitarian, nongovernmental organizations.
We are gonna allow accredited journalists. We are gonna
allow dual nationals who immigrated to--from Iran, after the
revolution. We are gonna allow dual Iranian nationals who were
born outside of Iran. We are gonna allow dual Iranian nationals
traveling to the United States for business purposes.
We are gonna allow business-related travel to Iraq from
these waiver countries. Congress, in the negotiations, said no,
we are not going to give those exemptions. But the State
Department now is saying, here is justification. Here is our
rationale that we are gonna allow that to happen.
How does this kind of lawlessness happen in defiance of
Congress? Explain that to me.
Ms. Johnson. So those are internal deliberations. That
document is a series of discussions on how we can utilize the
waiver that is allowed for, under the law. Again, working
internally within the Department, we broadly discussed the
options, the potential of utilizing this waiver, all throughout
the Department, both with the legal advisors' office and the
regional bureaus, which we do on a policy basis for any other
topic.
Those are internal deliberations. They were looking at what
kind of potential, you know, categories we might look at, under
the National security waiver, as, again, called for under the
law.
But that is, in no way, shape, or form, the final position.
Again, we consulted with Congress. We understood you did not
want blanket waivers or blanket exemptions. That was not the
intent, to have any, as we have mentioned here clearly today,
to do a blanket waiver or blanket exemptions. We were looking
at narrow----
Mr. Duncan. If you read this, it, absolutely, looks like
that is the intent of the State Department.
Ms. Johnson. So, again, it is a deliberative document. But
then we----
Mr. Duncan. I think it looks like a way to rationalize
getting around the intent of Congress. That is what it looks to
me. I believe if I share that with the American people, and it
is on the record now, and ask the American people to look at
it, they would come to the same conclusion. They would come to
the same conclusion.
I mean, one of the questions that you are asking a business
traveler from--that had gone to Iraq, after March 20--March 1,
2011, is this. Was your travel to Iraq after March 1, 2011? If
the answer is yes, was the travel exclusively for business
purposes? That is a pretty benign and open-ended question. If
they answer, yes, it was exclusively for business, we are gonna
probably grant you a visa waiver. Really?
I think the American people expect us to do a better job,
before we allow folks, based on the intent of the law passed by
Congress, before we allow folks to get a visa, to not have to
get a visa and be waived from that to travel this country.
I think you are using this white paper to rationale that. I
disagree with that.
Mr. Chairman, I would encourage everyone to really delve
into this a little further, because I believe the
administration is acting lawlessly, in this regard, because
Congress said a certain thing. We negotiated with the White
House along certain lines, and this seems to be violating that
intent. With that, I yield back.
Chairman McCaul. I was in those negotiations. It was pretty
clear, the understanding between all the parties to the--in the
negotiation.
With that, the Chair recognizes Ms. Jackson Lee.
Ms. Jackson Lee. Let me thank the Chairman and the Ranking
Member. This is an important hearing. But let me also thank the
witnesses. I come with a, sort-of, a dual approach in my
questions, respecting both of you.
Commissioner, thank you for your service.
Thank you, Ms. Johnson.
I am going to join the Chairman and wish that we had a
person in the level of Secretary, assistant secretary. When I
say that, no disregard to your expertise, and to thank you for
your presence here today.
As I said, when I say dual purpose, I am going to be a
little bit askance. Let me ask the commissioner, Mr.
Commissioner, are you--do you have an intent to break the law?
Mr. Kerlikowske. No, ma'am.
Ms. Jackson Lee. Ms. Johnson, do you have an intent to
break the law?
Ms. Johnson. No, ma'am.
Ms. Jackson Lee. So I would just take issue with our
hearing topic. I think we have public servants who are here who
have no intent on breaking the law. I feel a little bit
uncomfortable to suggest that they are here in the context of
breaking the law.
But I do believe that we want to give you counsel, and I
hope both of you will take back the definitive concern of this
committee. Our name came about after 9/11. If the American
people know anything, they understand homeland security.
It would fall at the feet of the Department, less so State,
who collaborates on these Visa Waiver Programs, when the
American people think, ``Why have I not been protected?'' They
will look to the Homeland Security Department, Commissioner.
They will look to this committee, just by the very name.
So, I can appreciate my colleagues, who were in
negotiations and made the very best effort. I hope you can
appreciate them as Members of Congress, trying to do their job.
But I want to say that I don't think any of you are attempting,
or have, broken the law.
But let me raise this and try to probe from you. Section
203 of the negotiations of H.R. 158, which never passed the
House or Senate, it passed its committee, did, however, get
into the Consolidated Appropriations Act.
The exact language is, as you have noted, is that the
Secretary of Homeland Security can waive the prohibition
against travel under the VWP waiver--the Visa Waiver Program,
due to recent travel to a specified country or because of
citizenship in a specific country, if the Secretary determines
that such a waiver is in the law enforcement or National
security interests of the United States.
Commissioner, have you heard that language? Has that
language been brought to your attention?
Mr. Kerlikowske. I have heard it, yes.
Ms. Jackson Lee. Ms. Johnson, has that language been
brought to your attention?
Ms. Johnson. Yes, ma'am.
Ms. Jackson Lee. So can I assume that the Secretary of
Homeland Security and the Secretary of State thought, in their
responsibilities of National security and law enforcement--am I
to assume that they felt compelled to answer the many inquiries
that they were getting, panic inquiries, outrage on the
diplomatic level, to come up with a resolution?
Ms. Johnson, do you think that is where we are today?
Ms. Johnson. I think there is a lot of confusion with the
law from our foreign partners, who have repeatedly asked how
this law will be administered. I think they are very concerned
about dual nationals, in particular, and that it felt very
discriminatory. So I think there were a lot of concerns raised.
Ms. Jackson Lee. Mr. Commissioner, is it that you needed to
inform your personnel and the Secretary of Homeland Security
felt compelled, either by his dialogue with the Secretary--
where do you think this, sort-of, machinations and changes, of
sorts, came about?
Mr. Kerlikowske. So the agreement and the understanding
that I have had from Secretary Johnson is, certainly, and,
certainly, not one to be pushed or pulled into any one
direction, since the day we met when we were both awaiting
confirmation, the protection of the American public is first
and foremost with him.
So putting these--this framework to be helpful, even though
no waiver has been granted and no request has been made,
putting this framework together with his partner at the
Department of State, is one that, I understand, we will
continue to push forward and develop processes to make sure
that someone is thoroughly, completely, and absolutely vetted
before any waiver would ever be granted.
Ms. Jackson Lee. So with no intent to undermine the
protection of the American people?
Mr. Kerlikowske. No, ma'am.
Ms. Jackson Lee. But complying with Section 3 that, if a
case comes up, under National security and--or law enforcement
necessity, that that case could be considered. So let me ask
you this. In the broad base of business purpose, could you
have, in your framework, what would define as a legitimate
business person?
Let's start with Ms. Johnson. What would we define as a
legitimate business person--purpose? Excuse me.
Ms. Johnson. Well, I think, we are still in deliberations
on, again, how to administer these waivers. Certainly, in the
case of Iran or Iraq, it would be making sure that they are not
sanctionable activities and, certainly, in an Iran case, or
illegal against U.S. laws.
But I think, you know, our first and foremost--and, again,
I will--straight from the Department of State, as well, is the
security of the U.S. homeland and the American public. I work
in the counterterrorism bureau. It is, again, what we do all
the time.
So that is where we would be starting with. I think what we
would be discussing is how we would go about reviewing those
waivers and, certainly, could talk about it at a future date in
a closed session. I think what we don't want to do is advertise
how to work around those, publicly.
Ms. Jackson Lee. Let me close by saying, first of all, I
want it to be very clear that I asked the witnesses, on the
record, did they have the intent or have they broken the law?
Let me add that point.
Have you broken the law? Commissioner.
Mr. Kerlikowske. No.
Ms. Jackson Lee. Ms. Johnson.
Ms. Johnson. No, ma'am.
Ms. Jackson Lee. I think that you have not done so. But I
think it is important that you hear the concern of this
committee, that what was represented in negotiations seems to
be, if you will, has turned into an amoeba and has begin to
crawl in different directions.
For the security of the American people, I think we need
negotiations, discussions, again. I think it should be restated
that the Commissioner said no waiver has been asked for or
granted, at this point in time, on February 10, 2016. That is
somewhat of a good thing.
But when you think of countries like Iran and Syria, you
raise concern in others. But I will close my comments by saying
I have empathy for humanitarian purposes. Certainly, military
and diplomatic have their own waiver.
I would, probably, look to narrowing that to those dealing
with humanitarian issues, those dealing with legitimate
business versus dealing with the Joint Comprehensive Plan of
Action, but raise questions about others who would need this
waiver, except for the fact that you come back and show us a
strict, restricted, point-by-point, in a briefing that is not
public, of how you would assess journalists and others, because
I am not here to deny the legitimacy of individuals like that
who would have been engaged in travel.
But, Mr. Chairman, I just want to be on record to say that
I do not believe this administration is in the business of
breaking the law. I yield back.
Chairman McCaul. The Chair recognizes Mr. Loudermilk.
Mr. Loudermilk. Thank you, Mr. Chairman.
Ms. Johnson, maybe you can help me clarify something. You
said you are not a lawyer. I am not a lawyer. But something you
had said earlier, maybe you can help me clarify. There appears
to be two exceptions that we are talking about to this law.
One was in response to Mr. Thompson in his questioning. He
brought up waivers, and you said that these are not waivers,
they are exceptions--or exemptions. Is that correct?
Ms. Johnson. No. I know that, under the law, there are
exemptions for categories for Government, official Government
business, as well as military. In this case, in the waivers, we
would be looking at this as an individual basis, so, again,
case-by-case, whereas exemptions, I think, are broad categories
of people.
So if--and I don't know, in the sense of how CBP would look
at those. But if someone presented military documentation of
official Government business, that is my understanding for----
Mr. Loudermilk. Okay. So waiver and exemption----
Ms. Johnson. None of them--it is not a blanket waiver, I
think, is the main thing to----
Mr. Loudermilk. Okay. But they are both exceptions,
categorically, I guess? Different--to different degrees. I
guess, that will explain, too--I was a little confused with--
when you responded to Mr. Duncan that the law gives the
Secretary the ability to grant waivers, a type of exception.
So, with that, Mr. Conyers, the Ranking Member of the
Judiciary Committee, actually voted against this bill when it
came to the floor. The reason he voted against the bill is
because it didn't provide the waivers for certain categories.
Let me read his quote: ``It contains no exceptions for
journalists, researchers, human rights investigators, or other
professionals.'' Again, ``It contains no exceptions for
journalists, researchers, human rights investigators, or other
professionals.''
To me, that is pretty clear that he said it contains no
exceptions, whether waiver or exemptions. This bill contains no
exceptions. So do you see that that is clear that, based on the
testimony of the Ranking Member, who was opposed to the bill,
because it didn't do exactly what the Department is claiming
that it does now--do you--does the Department know more about
the intent of the law than the actual Members of Congress?
Ms. Johnson. No, sir. I think, again, the text of the new
law is clear that the Secretary of Homeland Security has the
ability to waive the dual national and the travel restrictions,
if it is found in the law enforcement or National security
interests of the United States.
I think when we were looking at the waivers, again, we were
looking at categories of travelers under the National security
provisions. I think that we were trying to look at, again, a
limited scope and reviewing those on a case-by-case basis.
I don't know if they were looking at--for broader
exemptions, but the intent is, again, to look at it in a very
limited and narrow focus and on a case-by-case basis.
Mr. Loudermilk. Well, there is nothing in Mr. Conyer's
statement that says case-by-case. He says it contains no
exceptions. When we were talking about a moment ago, there are
waivers and exemptions. Both are types of exceptions.
He says it contains no exceptions. Not case-by-case. Not
individual. It contains no exceptions. I don't know how you
derive anything different. This is, again, I think, the Ranking
Member of the Judiciary Committee, would be pretty
knowledgeable about what the intent of the law is.
Given that, there is clear legislative history here that
this bill, including the floor statements and other statements,
did not intend to do what the Department is doing. Under oath,
you are under oath here today, are you willing to say that this
law provides for these broad categorical exemptions?
Ms. Johnson. These are, again, the text of the law is
clear. The Secretary of Homeland Security has the ability to
waive those dual national and travel restrictions, if it is in
the National security interests of the United States.
We are not asking for blanket, categorical waivers. We are
looking at a limited and narrow focus, and, again, reviewing
them on a case-by-case basis. I think this approach is
consistent with other waivers, such as under the Immigration
and Nationality Act, where there are broad categories, but we
look at them in an individual basis.
Mr. Loudermilk. Oh. One last question. How many meetings
did the Secretary Kerry and Secretary Johnson have regarding
these exemptions, prior to the announcement? Do you know?
Ms. Johnson. I don't. I know they talked frequently. I know
there was one meeting that I, personally, sat in on.
Mr. Loudermilk. There was one meeting before the decision,
the announcement was made?
Ms. Johnson. Yes. Yes.
Mr. Loudermilk. How many meetings since then?
Ms. Johnson. I don't know if they have talked on a regular
basis or not. But there was one meeting that I sat in, before
the announcement. Yes, sir.
Mr. Loudermilk. All right.
Mr. Chairman, I yield back.
Chairman McCaul. The Chair recognizes Mr. Richmond.
Mr. Richmond. Mr. Chairman.
I guess I will pick up where my colleague just left off, in
trying to determine the exemptions which, my understanding,
would be outright exemptions of categories of people, and then
waivers, as you all define as on a case-by-case basis and the
Secretary has the authority to do that.
My colleague quoted John Conyers, who I certainly respect
and made him an authority, but John Conyers is also asking for
us to vote on voting rights. I don't hear anyone quoting him or
moving to do that.
What it sounds like to me is that you all were asking for
the blanket exemption for those categories, and, when you
didn't get it, some lawyer in your office said, well, it is not
a big deal, because you can do it by waivers on a case-by-case
basis.
Is that probably fair, that someone came to you and said
that you could do exactly what you want to do by waiver, as
opposed to, I guess, continuing to negotiate an exemption?
Ms. Johnson. The law actually says that the Secretary of
Homeland Security has the ability to utilize a waiver to waive
the dual national and travel restrictions, if it is in the law
enforcement and National security interests of the United
States.
Mr. Richmond. Did we have any conversations about taking
that waiver provision out of law, or striking that, so that the
Secretary would not have the authority to waive on a case-by-
case basis? Did anyone raise a concern about that?
Ms. Johnson. I was not part of any of those discussions, so
I don't know.
Mr. Richmond. Let me just ask you, in terms of cost, how
much more time and energy and resources are you all gonna use
to look at a waiver on a case-by-case basis, or if the person
had to actually go through the visa process?
Ms. Johnson. I have Consular Affairs here that might be
able to speak to the consular side of the house. I think,
through this terrorism threat prevention cell, which, again, is
part of the National Targeting Center, State Department already
has bodies there that work this.
Yes, it will be a few more resources. I think, again, what
we are looking at is, through the Visa Waiver Program, the
ability to get the information we receive from these foreign
partners, under the requirements of this program, actually help
with those resource issues. They provide more information on
known and suspected terrorists and criminals that we can screen
against to protect our homeland.
So, without that information, it is certainly difficult to
do that kind of screening, even in the visa context.
Mr. Richmond. Well, and let's move on to, I guess, what
your ultimate goal is when you say the National security
interests, which is why you now have implemented waivers, or
planning to, because of our partners.
What have our partners done, in terms of how they treat
travel to Syria or any of the other conflict zones that support
terrorism?
Ms. Johnson. You mean, our Visa Waiver partners, in
particular?
Mr. Richmond. Yes.
Ms. Johnson. I can take that question back, if you are
looking for more specifics down per country. I think they are
very concerned about travelers from these countries, certainly.
But, again, I think the important focus here, when we are
looking at these waivers, we are not looking to have random
people who go to Syria and come back.
We are looking at very limited scoped waivers for
individuals, again, on a case-by-case basis, who might be
working--that are working on these National security
objectives.
So, again, it is not just somebody who goes to Sudan or
Syria and comes back. But I believe these countries are, you
know, just as concerned. But, again, this partnership, under
the VWP program, means they also receive information from us on
known and suspected terrorists. They receive our--a good chunk
of our database and our terrorism screening watch list, which
helps them--aid in their screening, as well, to protect their
borders.
Mr. Richmond. So it is--I mean, it is mutually beneficial,
and I would say beneficial. But it is absolutely mandatory that
all of the partners cooperate, in order to make not only them
safer, but us safer, also.
Was this becoming a problem, in terms of the relationship
with our partners?
Ms. Johnson. You mean the law, or----
Mr. Richmond. The law, yes.
Ms. Johnson. I think they were very concerned that their
citizens were being--you know, the affected travelers, under
this law, were considered heightened security risks. So, they
had registered a number of concerns about that.
I had, again, conversations yesterday. They were very--they
want to protect the U.S. homeland, but are very concerned about
the perception that individuals that go to, again, work for
humanitarian organization in Darfur are suddenly being
considered a heightened security risk. That was a very big
concern of theirs, yes.
Mr. Richmond. Well, I would just tell you that I do have a
concern, when it comes to protecting the homeland. I think that
we are on a very slippery slope, in terms of how far we go.
But, to the extent that the experts believe that it creates a
better relationship with our partners and the fact that it will
keep us more secure, I think that language is clearly within
the law, that says that you have the right to waive it, if it
is in the National security interest.
If our negotiators had a problem with that, they should
read that line, take it out, and then I think that all the
emails and everything else we went back and forth and talked
about today, they would have every right to be upset about,
because you asked for an exemption and you didn't get it. But
if they were--wanted to outlaw the waivers, then that language
just shouldn't be in there.
But if it is in there, we can't come back and get mad that
you are using language that is already there. I think that you
have to make sure that you are confined to the spirit of what
those waivers are and not go too far with defining National
security interests and--because, at the end of the day, we just
don't want the American people less safe. We don't want to be
negligent in our responsibility to make them safe.
With that, I will yield back.
Chairman McCaul. I thank the gentleman.
Now, the Chair recognizes Mr. Ratcliffe.
Mr. Ratcliffe. Thank you, Mr. Chairman.
Ms. Johnson, I, based on your testimony earlier, I know
that you played a role, with respect to the negotiation of
text, for H.R. 158. Because of that, I know that you were aware
that these special categories of exemptions, travel for
humanitarian purposes, for business purposes, and for
journalistic purposes, were requested by the State Department
and were rejected by Congressional negotiators, as reflected in
the emails that Chairman McCaul put on the screen earlier.
Correct?
Ms. Johnson. I was not involved in the discussions, the
negotiations of the law, but I am very aware of those
discussions. Yes, sir.
Mr. Ratcliffe. Okay. You were aware, because those special
categories were rejected and left out of the text, that groups
like the ACLU opposed this bill becoming a law?
Ms. Johnson. I was not aware of that.
Mr. Ratcliffe. Okay. That organizations were opposed to it
for that reason?
Ms. Johnson. Not aware of that, no.
Mr. Ratcliffe. Okay. Well, were you aware that Members of
Congress, like Ranking Member Conyers, actually voted against
the law, because those specific exemptions were not included?
Ms. Johnson. Yes, we discussed that earlier. I understand
he, also, came out with a statement in support of the waiver
categories.
Mr. Ratcliffe. So, despite the opposition of Members like
Mr. Conyers, you know, of course, that the bill passed into law
with an overwhelming vote of 407-19, and the President signed
it into law on December 18.
Now, I ask you all that, because, you know, your written
testimony and your verbal testimony today really seems to talk
about a need and a justification for some of these special
categories. To me, I have to tell you, that really just seems
like a re-litigation of an issue that has already been lost by
the State Department.
Congress acted here. I don't think there is any ambiguity,
with regard to Congressional intent. These exceptions were
rejected, and the President signed them into law. Because of
that, I hope that you can appreciate why so many of the folks
that have been in here today see it as the height of arrogance
by the administration and Secretary Kerry to send a letter to
the Iranian Minister of Foreign Affairs less than 24 hours
after the President signed this into law, stating an intent to
disregard the law.
In so doing, to place the interests of the Iranian economy
in front of the National security interests of Americans. Can
you see why folks are upset by that?
Ms. Johnson. I would note that, for the letter that
Secretary Kerry wrote to Foreign Minister Zarif was in response
to the Iranians publicly claiming that this law violated the
commitments of the JCPOA. In fact, in that letter, he was
actually defending the law and stressing that it was not a
violation of the commitments against the JCPOA.
He writes many of these letters----
Mr. Ratcliffe. Well, let me ask you about that. Do you have
a copy of the letter?
Ms. Johnson. We have one here, yes.
Mr. Ratcliffe. Okay. Well, great, because--and let me read
this. I want to make sure I get it right. This is a letter from
Secretary Kerry to the Foreign--to the Minister of Foreign
Affairs in Iran.
In the second paragraph, he says, ``I am also confident
that the recent changes in visa requirements passed in
Congress, which the administration has the authority to waive,
will not in any way prevent us from meeting our JCPOA
commitments, and that we will implement them so as not to
interfere with the legitimate business interests of Iran.''
Did I read that accurately? Did I read that accurately?
Ms. Johnson. Yes, sir.
Mr. Ratcliffe. Okay. So this letter doesn't say that the
administration has the authority to waive for law enforcement
purposes or National security purposes. Does it?
Ms. Johnson. No, sir.
Mr. Ratcliffe. Okay. It doesn't say the administration has
the authority to waive on a case-by-case basis, as you have
said today. Does it?
Ms. Johnson. No, sir.
Mr. Ratcliffe. All right. It just tells the Iranian
government that the administration has the authority to waive
so as not to interfere with the legitimate business interests
of Iran.
Now, it, also--I want to make sure I read that correctly--
doesn't say that we may implement them. Doesn't the language
say we will implement them so as not to interfere with the
legitimate business interests of Iran?
Ms. Johnson. Yes, sir.
Mr. Ratcliffe. Okay. It doesn't say we may implement these.
It doesn't say we might do it. It doesn't say we might do it on
a case-by-case basis, as you have said today. It says we will
implement them so as not to interfere with the legitimate
business interests of Iran.
Now, we can have a debate about whether there even is such
a thing as a legitimate business interest in Iran, but we
really can't debate whether or not an Iranian business interest
has anything to do with law enforcement in this country, can
we?
Ms. Johnson. The law does say that they can waive for
National security and law enforcement purposes. This letter was
defending the law, in response to a public assertion by the
Iranians that it was violating the commitments of the JCPOA.
Mr. Ratcliffe. Well, you know, it is funny, because when
you talk about what is in the National security interests of
our country, for the last several decades, our National
security interest has been to sanction Iran. It has been to
cripple the business interests in Iran. It has been to cripple
their economy. Those sanctions, frankly, were working pretty
well, until this administration did away with them.
You know, Ms. Johnson, I don't want to shoot the messenger.
Maybe we need to bring Secretary Kerry here. Maybe we need to
remind Secretary Kerry that he is no longer Senator Kerry, that
he doesn't get to make laws anymore.
I would like to know, frankly, from Senator Kerry whether
he ever intended to honor Congressional intent, or whether this
negotiation with Congress was ever in good faith, or whether
the administration had already planned to force these special
categories into the National security waiver.
Either way, it is this type of gotcha attitude, it is this
defiance of the rule of law, which make the American people not
trust this administration. I don't blame them.
With that, I yield back.
Chairman McCaul. Chair recognizes Mr. Walker.
Well, okay. On my list--I am sorry. Mr. Carter.
Mr. Carter. Thank you, Mr. Chairman. Mr. Chairman, let me
preface my remarks, my questions, Mr. Chairman, by just saying
that, while I am very respectful of the Commissioner and Ms.
Johnson being here and appreciate them being here, very much,
they are, Mr. Chairman, in my opinion, they are just overseers
and implementers of this.
We need the people here, testifying before us, who have
actually had the responsibility of doing this. That is the
White House, the Secretary of State, the Secretary of Homeland
Security.
So, Mr. Chairman, I hope that we can work toward getting
them here to answer these questions, again, respectfully, to
the witnesses who are here today.
Having said that, Mr. Chairman, Ms. Johnson, respectfully,
I remind you, you are under oath. Whose decision was it? Whose
decision was it to ignore the intent and the plain language of
the law? Whose decision was that? To create these 5 categories
of exemptions, whose decision was it?
Ms. Johnson. Sir, the text of the law provides for a waiver
to--against those----
Mr. Carter. Whose decision was it?
Ms. Johnson. So, just like all policy that we do, both at
the State Department--it was an entire deliberation around the
Department. We worked very closely, again, taking into
consideration Congress's concerns with blanket waivers. We
worked with our Department of Homeland Security colleagues, in
tandem, to look at what might be possible under this waiver
exemption, under the law.
Mr. Carter. So you are saying that it was the State
Department? It was everybody in the State Department was
involved in this decision?
Ms. Johnson. We have regional bureaus, certainly, that are
very concerned about----
Mr. Carter. Did you consult with anyone at the White House?
Was anyone at the White House, anyone in the administration----
Ms. Johnson. Yes, we talked----
Mr. Carter. Were they involved in that?
Ms. Johnson [continuing]. To the White House. It was a
White--this is a collaborative effort. This was State
Department, Department of Homeland Security, and the White
House, yes.
Mr. Carter. So it was people who were, also, involved in
the agreement, the agreement that Congress had with the
administration? They were involved in this decision?
Ms. Johnson. Yes.
Mr. Carter. You know, we used to have a Governor in the
State of Georgia, who also served as a United States Senator.
It was Al Miller. He used to--one of his favorite sayings was
always that, you know, if you are walking in the woods and you
see a turtle on a fence post, you can bet that somebody put
that turtle on that fence post. It didn't get there by itself.
Somebody did this. Somebody had the intent of doing this.
That is what bothers us so much. You know, Ms. Johnson, you
don't know my daddy. My daddy is the smartest man I have ever
met, not the most educated, but the smartest. He always told
me, he used to say, ``Son, whenever you think you are the only
one who is right and everybody else is wrong, you have to stop
for just 1 minute. You have to think, you know, it might not be
everybody else. It might just be you.''
I always remember that. Here we had 407 Members of
Congress, of the United States House of Representatives--now I
have been here almost 14 months now. I can tell you, when you
get 407 Members to agree on something, that is strong.
Here we had 407 Members agree on this and vote in favor of
this, under the auspices of this administration, or this
agreement with this administration. Yet, the administration
goes and voids this agreement altogether.
Don't you find that to be somewhat disrespectful of the
American public, in general? I mean, if we are elected by the
people, that has gotta be disrespectful, in my book. What do
you think?
Ms. Johnson. The text of the law offers up a waiver.
Mr. Carter. What about the intent? Don't tell me that
intent doesn't matter, because it does, in this case, because
the administration knew the intent. They agreed, and they knew
the intent.
Ms. Johnson. Again, we understood the intent, very clearly,
in the text of the law, very clearly----
Mr. Carter. Then why did--why did you go against the
intent?
Ms. Johnson. I am saying that these are not blanket waivers
and, again, we are very clear that these would be used on a
very limited, case-by-case basis in a narrow and tailored
focus.
Mr. Carter. Well, let me ask you this. You know, it is
something else that concerns me greatly is that, if we were
talking about tax policy, if we were talking about the economic
issues, it would be one thing. But we are talking about
Americans' safety. That is what is so concerning to me.
Let me ask you, the administration didn't decide on their
own to provide an exemption for the journalists, the
researchers, the human rights investigators and the other
professionals. If they weren't getting this exemption, could
they still get here?
Ms. Johnson. They can go get a visa, as well, yes.
Mr. Carter. Well, why not do it that way, then? Why not
just leave it to the visa process?
Ms. Johnson. Well, as we discussed, and I mentioned in my
opening remarks, I mean, the partnership with these VWP
partners is a counterterrorism tool. Very--they are very
concerned about the fact that a number of their citizens,
affected by this law, are treated as heightened security
risks----
Mr. Carter. You know----
Ms. Johnson [continuing]. And are participating----
Mr. Carter. I am sorry. I have to disagree with you on
that. I think that if they had wanted them in here, the visa
process would have been the way to go.
Mr. Chairman, again, respectfully, thank both of these
witnesses for being here. I know, I have worked with the
commissioner before. I know him to be an honorable man. But we
ain't got the right people here. We need the Secretary of
State. We need the Secretary of Homeland Security. We need
someone from the White House.
Mr. Chairman, I yield back.
Chairman McCaul. In response, the Secretary will be here
fairly soon, in a budget hearing, and I am sure this issue will
come up at that time. We did request a higher-level political
appointee.
In response, not to diminish your testimony, Ms. Johnson,
but I think you were, sort-of, thrown under the bus, to be
honest with you, on this.
The Chair now recognizes Mr. Walker.
Mr. Walker. Thank you, Mr. Chairman.
Ms. Johnson, I want to go back to something you said a
little earlier. I think you were touching on it just a few
minutes ago, in responding to my colleague from Georgia, Mr.
Carter, about this Iranian's--if you used the word are offended
by the travel bans, or it is a problem there. I don't
understand why that is an overwhelming concern of ours, that is
offensive to them. Can you expound on that make and make sure I
heard that correctly, or is that----
Ms. Johnson. No, sir. It was that they were publicly
complaining that the law violated the JCPOA. The Secretary's
response was to defend the law. So that is what my point was
there.
Mr. Walker. Yes, and that is confusing to me, because, you
know, in the 13, 14 months that I have been here in Congress,
it is very rare that you have both sides of the aisle coming
together. Sixty-three percent of the House voted against the
Iranian deal, even to begin with. So it is already something
that, in the flavor of the American people, there are great
concerns.
So being overly-worried about the tenor of what this is
doing in the mood of the country, I don't know that that is our
primary concern. Just yesterday, CNN article was quoting
Lieutenant General Vincent Stewart. He said, ``ISIS will
probably attempt to conduct additional attacks in Europe and
attempt to a direct attacks on the United States homeland in
2016.''
James Clapper, as you know, the director of national
intelligence, also said, ``Taking advantage of the torrent of
migrants to insert operatives into that flow.'' Now, these are
people who study this daily. He also added that they were
pretty skilled at phony passports, so they can travel
ostensibly as legitimate travelers.
Then, finally, he also added, speaking of the nuclear deal,
the aforementioned that we were just talking about, he said,
``We, in the intelligence community, are very much in the
distrust and verify mode.'' May I remind you again, that this
is the world's leading sponsor of state terrorism?
So why we are erring on the side of being more concerned
with what somebody might think about it, when we know that
there is an intent, obviously, historically, to do us harm?
Here is a specific question I do have for you, though.
Is it your understanding that these waivers are being
applied in a manner to appease Iran, speaking of the context of
what we are talking about, and protect President Obama and
Secretary Kerry this whole agreement is--do you feel like that
is part of it? There is an appeasement here of trying to keep
this deal structured the way that it is?
Ms. Johnson. No, sir. This is not about Iran. This is about
protecting the U.S. homeland and American public. I think what
we have said is there is an option for a waiver into this law.
We were looking at that in the National security objectives.
Again, the partnership under the VWP is a huge
counterterrorism tool. I just stress that, again, that just
because someone might fall under this identified category of a
waiver does not mean they would get a waiver or be able to
travel under the VWP.
I think one piece of information that the CBP commissioner
I have heard say multiple times in DHS, if there is any
concern, they don't offer, you know, travel under the VWP. So
if there is not enough information, they don't.
Again, the VWP partnership provides us with information
that enhances our screening capabilities. That way, we are able
to protect the homeland in a better way than we would
otherwise.
Mr. Walker. Are you under the impression, or the
understanding, that holding a tougher line and opposing these
VWPs are going to increase the threat to our homeland security?
Is that the point that you are making?
Ms. Johnson. No. I am saying we leverage this Visa Waiver
Program, in order to be able to get a lot of information from
these foreign partners. Again, I also said, it is become an
international standard, a lot of these security requirements.
It also helps us with other countries to improve their
screening capabilities. But it is an important program. We are
screening all of these individuals, whether they come through
the VWP or through a visa. In the exact same way, we are
screening against all of our terrorism databases, our criminal
databases, the INTERPOL lost and stolen passport database,
again, with information provided by these countries under the
VWP.
Mr. Walker. Thank you.
Commissioner Kerlikowske--is that close? Okay. All right.
How can we be sure that business travelers, these humanitarian
workers and journalists--I spent two decades as a minister. I
have lots of friends that are connected in the missionary
communities. I want to make sure that no one is connected with
these terrorist activities.
What is the full--I mean, what is your advice on how we can
make sure of that?
Mr. Kerlikowske. So on February 23, Congressman, there will
be a series of questions on that Electronic System for Travel
Authorization. In particular, will be questions for not only
the humanitarian organizations, that I outlined earlier, but,
for example, on businesses.
If you were doing business in Iran under--and, of course,
they would get you would have to have a visa from that country.
You would have a specific business visa. So we ask for that
information.
I would tell you, we have also reached out to multinational
organizations, multinational businesses that we know already
have interest or are doing, or would like to do, business in
that country, and asking them for information about, well, who
is going to be there from your organization.
Who can we be in contact with or get information from, so
that we can verify that that person is, in fact, who he or she
says they are, is doing business there on behalf of your
company or--and is an employee of your company? So there is a
whole series of vetting.
Mr. Walker. Well, thank you for your response.
Thank you. Yield back, Mr. Chairman.
Chairman McCaul. Thank you. The Chair recognizes Mr. Katko.
Mr. Katko. Thank you, Mr. Chairman.
Chairman McCaul. You want to sit in the chair?
Mr. Katko. Mr. Kerlikowske, I seem to remember your name in
supervisory circles when I was an OCADEF prosecutor for many,
many years. So it is nice to see you in person, after all these
years.
Just, for both of you, this doesn't require long answers,
but I think you both admit that the issue of the waivers and
extent of the waivers that were discussed in the bill were
actually pretty well-discussed before it became law. Is that
fair to say to both of you?
Mr. Kerlikowske. Yes.
Ms. Johnson. That is my understanding.
Mr. Katko. Okay. So they were discussed, and they were--and
the very things that you are talking about now were rejected,
as part of the final bill. So, now, we are at this process
where I understand from your testimony before my--the whole
time today, that you are going to great lengths to make sure
that the people that are part of this--these exceptions that
you are developing are properly vetted. Is that fair to say to
both of you?
Mr. Kerlikowske. Yes, it is.
Ms. Johnson. Yes, sir.
Mr. Katko. I have got a simple question for you, then. Why
the heck didn't you just go along with what the law said and
expedite the visa process for these people, instead of going
to--driving these gigantic exceptions into the law that was
clear, and you both acknowledge were fully discussed
beforehand?
Why didn't you just go with the--why didn't you just
expedite the Visa Waiver--I mean, the visa process for these
individuals that were no longer eligible for Visa Waiver? Why
not just take the visa process and say we are going to put this
on steroids? We are gonna follow the letter of this law,
instead of driving trucks through it with exceptions?
Why not just say, we are gonna make the visa process more
streamlined for these individuals, so we--so they won't be too
inconvenienced?
Ms. Johnson. So, as I mentioned earlier, I mean, the--they
certainly can apply for visas. I know they can get expedited--
--
Mr. Katko. No, no. That is not my question. My question is,
quite simply, why didn't you just take these individuals that
were--that are now no longer eligible for a visa--visa waivers,
and simply say, okay, now that you are not--you are
inconvenienced by this, but we are gonna make it as simple as
possible, because we don't want to disrupt travel. We don't
want to disrupt everything.
Instead of sweeping them all under the umbrella of National
security, which is, quite frankly, B.S., and why didn't you
just do it the right way and just simply say those of you who
now have to have visas, we are gonna make it--we are gonna
expedite this, so you are minimally inconvenienced? Why didn't
you do that?
Ms. Johnson. The Visa Waiver Program, again, the partners
were very concerned, and we are very concerned of the fact that
a number of these individuals would be affected by this, would
be treated as heightened security risks, when----
Mr. Katko. But that is basically----
Ms. Johnson [continuing]. In fact----
Mr. Katko [continuing]. What you are treating them as right
now, because you are doing an extra screening on them now. So
what is the difference?
Ms. Johnson. So, again, there is an option for a waiver
under the law. We were pursuing that under the National
security objectives of the United States.
Mr. Katko. Okay. I understand this. You are starting to
sound like Marco Rubio did Saturday night, here, okay? What I
want to know is, from a--did you--first of all, I mean, a
simple question. Did you even discuss or examine the
possibility of simply expediting the visa process for these
individuals, instead of just blowing an exception into this
law?
Ms. Johnson. We are offering expedited visas to people who
are affected under this law now.
Mr. Katko. Okay. So, if you are doing it for some people,
right? That are affected by this, correct?
Ms. Johnson. Yes.
Mr. Katko. Why didn't you do it for these whole other
categories that you guys grafted in here, knowing that you were
going to incur the wrath of Congress, knowing that you were
ignoring what Congressional intent was?
Ms. Johnson. Not trying to sound like Marco Rubio, but
there is an option for a waiver under the law.
Mr. Katko. Well, okay. Well, we disagree. Let's--we
disagree on that one. Okay? All right. Mr. Kerlikowske.
Mr. Kerlikowske. I think there are a couple of things that
are helpful. One, I wouldn't know what it would take for the
State Department, with resources, personnel, et cetera, and
where those locations of consulates and embassies are.
I do know that we depend very clearly on a close working
relationship with these Visa Waiver countries under all of the
different guidelines that are now, or restrictions that are now
in place to share information, and that by telling them that a
number of people would not be considered, or would be
considered at a heightened risk and additional security could
have a negative impact on that communication that we value,
very clearly, with them.
So I would--and remember, too, even though we have not had
a single application, if there is any information that would be
of a derogatory nature or cause us concern, we will default, at
CBP, to denying admissibility and requiring that that person
show up at the embassy or the consulate for, in fact, a visa
application.
Mr. Katko. Right. I understand what you are saying, but--
and I understand, you know, relationships are important. But
there are ways to smooth over the relationship without ignoring
the law. It just seems to us, here, and I think bipartisan,
mostly, that the law was being ignored and the Congressional
intent was being ignored.
I guess I would urge you to maybe explore the possibility
of going back and rethinking this policy, and maybe, maybe,
thinking about messaging to your--our partner countries, we
want your business, but we are also concerned about National
security. So, work with us, here. We will expedite the visa
process for ya, and do it the right way.
That is--I would suggest you contemplate that. Thank you.
I now yield back.
Chairman McCaul. Okay. Just, in closing, first I want to
thank the two of you for being here today. But I just want--you
know, having chaired the committee before the bill was marked
up, having been intimately involved in the discussions between
the Congress and the White House and State Department and the
Department of Homeland Security, you know, in my judgment, you
have taken exceptions that were rejected by Congress and just
approved them on your own authority under this waiver authority
that was in the legislation.
It is very disturbing to us. We will continue our oversight
authority on this on, as you say, a case-by-case basis, but we
can--we also have legislative authority to fix this. In this
legal memo--now, I know you said case-by-case, but you said
additionally, as discussed in the legal paper, the National
security waiver can be exercised by category, not just by
individuals.
That doesn't sound like case-by-case basis to me. That
sounds like a broad category, like what we have seen by
Executive Order in immigration. Can you explain that?
Ms. Johnson. Again, this is a deliberative memo. So, under
the INA, I know there are categories of waives, which we also,
then again, assess on an individualized basis. But the process
of that, again, was looking at the broad options under the
waiver, that is under the law, and looking at those, again, as
a deliberative process throughout the Department, taking into,
obviously, Congressional intent and our conversations on
regular consultations with the Department of Homeland Security.
Chairman McCaul. Well, and, Commissioner, if I can just
say, in this memo, and this is your internal deliberations,
legally, and I am an attorney, ``the law gives the Secretary of
Homeland Security authority to waive this ineligibility, if the
Secretary determines such a waiver is in the law enforcement or
National security interests.''
``As discussed, this is a lesser standard than that imposed
by other statutes that require finding that a waiver is vital
to, or essential to, the National security interests of the
United States.''
Perhaps we didn't draft this per the administration's
liking, but I would argue that there may be another option
here, and that is to pass another law that had the language
vital to or essential to the National security interests of the
United States.
I know neither of you are attorneys, but would that close
the loophole on these exceptions, if we did that?
Mr. Kerlikowske. Mr. Chairman, I couldn't answer that, but
I could tell you that in all of the conversations and the
discussion, the many meetings I have had with Secretary
Johnson, he is going to be assured of a narrow interpretation
of reviewing these--the process and to make sure that the
process is in place.
I know you have made it very clear about the oversight that
you and the committee will provide on this. So, I would tell
you that even though we have never entered into a process yet,
or had a request for a waiver, that the Secretary has no
interest or intention of issuing a waiver, if that should come
about, without making sure that----
Chairman McCaul. And I have discussed this----
Mr. Kerlikowske [continuing]. It is foolproof.
Chairman McCaul. I have discussed this with the Secretary,
and, you know, he is a--I know the pressure he is under. I
think this is a State Department call and Homeland was put in a
difficult position. That is my assessment.
In my judgement, just in my final closing remarks, I
believe that we, in this case, as always in the State
Department, with this foreign policy, have put the Iran deal
over the National security interests of the American people.
With that, I do want to thank the witnesses for being here.
Members of the committee may have some additional questions
that we will ask you to respond in writing. Pursuant to the
rules, it will be held open for 10 days. Without objection, the
committee stands adjourned.
[Whereupon, at 1:01 p.m., the committee was adjourned.]
A P P E N D I X
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Questions From Ranking Member Bennie G. Thompson for R. Gil Kerlikowske
Question 1a. The Visa Waiver Program Improvement and Terrorist
Travel Prevention Act of 2015 prohibits individuals with recent travel
to citizenship in Iraq, Iran, Sudan, or Syria and such other countries
designated by the Secretary of Homeland Security from traveling to the
United States under VWP. What specific changes to Customs and Border
Protection's Electronic System for Travel Authorization (ESTA) will be
necessary to determine whether someone is prohibited from traveling to
the United States pursuant to the law?
Answer. As of February 23, 2016, CBP added several new questions to
the ESTA application to help CBP determine if an individual is
prohibited from traveling to the United States under the VWP. The new
questions include:
Have you traveled to, or been present in, Iraq, Syria, Iran,
or Sudan on or after March 1, 2011?
If yes, provide the country, date(s) of travel, and reason
for travel.
Have you ever been a citizen or national of any other
country?
If yes, other countries of previous citizenship or
nationality?
Are you a citizen or national of any other country?
If yes, what country?
Question 1b. What is the status of those changes?
Answer. CBP launched the updated website with new questions on
February 23, 2016.
Question 2a. The Act authorizes the Secretary of Homeland Security
to issue a waiver if doing so is ``in the law enforcement or national
security interests of the United States'' and DHS has announced it
intends to consider waivers from certain categories of prospective VWP
travelers.
What specific process will be used to determine whether a traveler
will be issued a waiver?
Answer. As it currently stands, the waiver process is a case-by-
case determination related to certain categories of aliens for which
waivers may serve the National security or law enforcement interests of
the United States. Categories under consideration include:
Individuals who traveled to Iran, Iraq, Sudan, or Syria on
or after March 1, 2011, on behalf of an international
organization, regional organization, or sub-national government
of a VWP country on official duty;
Individuals who traveled to Iran, Iraq, Sudan, or Syria on
or after March 1, 2011, on behalf of a humanitarian NGO on
official duty;
Individuals who traveled to Iran, Iraq, Sudan, or Syria on
or after March 1, 2011, as a journalist for reporting purposes;
Individuals who traveled to Iran for legitimate business-
related purposes following the conclusion of the Joint
Comprehensive Plan of Action (July 14, 2015); or
Individuals who have traveled to Iraq on or after March 1,
2011, for legitimate business-related purposes.
Visa Waiver Program (VWP) applicants complete the new Electronic
System for Travel Authorization (ESTA) application on-line and must
respond to questions regarding travel to Iran, Iraq, Sudan, and Syria.
The information provided by the applicant is used to determine if the
subject may qualify for a waiver, which causes the application to be
electronically referred to the Terrorist Travel Prevention Cell (TTPC)
for manual review. The TTPC is a multi-agency coordinating cell
leveraging both operational and intelligence resources from across the
U.S. Government to make individualized National security waiver
determinations for ESTA applicants seeking to travel to the United
States. The TTPC will utilize a variety of border security,
counterterrorism, and law enforcement systems as well as open-source
data in conjunction with information provided through ESTA to determine
if the subject may qualify for a waiver.
Question 2b. What role will CBP play in that process?
Answer. U.S. Customs and Border Protection (CBP) developed and
maintains the Electronic System for Travel Authorization (ESTA) website
as well as the case management and screening system for ESTA
applications. CBP will coordinate with interagency partners and issue
waivers of VWP) ineligibilities where appropriate.
CBP's National Targeting Center (NTC) is the lead for the multi-
agency coordinating Terrorist Travel Prevention Cell (TTPC) leveraging
both operational and intelligence resources from across the U.S.
Government to make individualized National security waiver
determinations for VWP travelers seeking to enter the United States.
TTPC will utilize law enforcement systems as well as open-source data
in conjunction with information provided on the ESTA application to
determine if the subject may qualify for a waiver. CBP will accept the
applications, refer eligible applications to the TTPC, and upon
adjudication, notify the traveler of the determination.
Question 2c. What circumstances would warrant a waiver?
Answer. Waivers will be granted where a determination is made, on a
case-by-case basis, that a waiver will serve the law enforcement or
National security interests of the United States.
Question 2d. What will the costs be to CBP for adjudicating
waivers?
Answer. CBP has determined that the TTPC will be initially
established with 10 CBP Officers and staffed 7 days a week for up to 16
hours a day. The TTPC will be funded by CBP's portion of the ESTA fee
(which is currently $4 per ESTA application). CBP will adjust its
staffing and cost estimates based on the number of waiver applications
the TTPC receives.
Questions From Honorable Barry Loudermilk for Hillary Batjer Johnson
Question 1a. Recently, U.S. intelligence confirmed that over 6,600
suspected ISIS fighters have passports from Western countries. Are you
all aware of this?
Answer. We are aware of reports indicating ISIS fighters have
passports from Western countries. We closely monitor reports of this
type and work within the interagency to develop and disseminate the
information necessary to ensure that such individuals are not able to
enter the United States.
Question 1b. If so, what are you doing to ensure these ISIS
fighters do not ``legally'' come into our country on stolen Western
passports?
Answer. All countries participating in the Visa Waiver Program are
required to report their lost and stolen passports to Interpol, and the
passport numbers of all visa applicants also are searched against
Interpol's Stolen and Lost Travel Document database.
The Department of State is dedicated to the protection of our
borders, and we have no higher priority than the safety of our fellow
citizens at home and abroad. We and our partner agencies throughout the
Federal Government have built a layered visa and border security
screening system. We continue to refine and strengthen the 5 pillars of
visa security: Technological advances, biometric innovations, personal
interviews, data sharing, and training. This layered approach enables
us and our partners to track and review the visa eligibility and status
of foreign visitors from their visa applications throughout their
travel to, sojourn in, and departure from the United States.
We continuously match new threat information to existing visa
records. We have long recognized this function as critical to the way
we manage our records and processes. This system of continual vetting
evolved as post-9/11 reforms were instituted, and is now performed in
cooperation with the Terrorist Screening Center (TSC). All records
added to the Terrorist Screening Database are checked against the
Consular Consolidated Database (CCD) to identify matching visa records.
Matches are sent electronically from the Department of State to TSC,
where analysts review the hits and flag cases for possible visa
revocation. In addition, we have disseminated our data widely to other
agencies that may wish to learn whether a subject of interest has a
U.S. visa.
Adapting technology to secure our borders is a critical component
of our work. For example, the Department of State has deployed software
to embassy consular sections world-wide designed to enhance our ability
to detect falsified or fraudulent Syrian and Iraqi passports. DHS and
the Department of State are cooperating in this effort. Furthermore,
the Department of State has watchlisted all known lost, stolen, or
otherwise invalid Syrian and Iraqi passports in the Consular Lookout
and Support System (CLASS) database against which consular officers
screen all visa applications.
Question 2a. Back in October, this committee held a hearing on
Worldwide Threats and Homeland Security Challenges, where I asked DHS
Secretary Johnson, NCTC Director Rasmussen, and FBI Director Comey
about the refugee crisis. These questions were never answered, so I
would like to re-ask them: There have been varying data reports on the
ratio of men to women and children coming into our borders. Most of the
statistics I have come across indicate that the majority of Syrian
refugees are predominately males, while a small percentage remains
women and children. Is this true?
If so, what is the ratio of Syrian refugee men to women and
children?
Question 2b. As we welcome an additional 10,000 Syrian refugees in
fiscal year 2016 alone, how are you and your partner agencies planning
to monitor admitted refugees to ensure violent extremists have not
infiltrated their ranks?
Question 2c. Is the United States prioritizing Christian refugees,
who are focal persecution targets in Syria?
Answer. Regarding the U.S. admission of Syrian refugees to the
United States, the U.S. Refugee Admissions Program (USRAP) prioritizes
admitting the most vulnerable Syrians, particularly female-headed
households, children, survivors of torture, and individuals with severe
medical conditions. Single men not traveling with family members and or
joining friends or family in the United States make up only 2 percent
of Syrian refugees admitted to the United States to date. In each
instance, these individuals are only admitted after clearing intensive
security screening--a process which pays additional attention to the
relatively rare unattached, military-aged male applicant to the USRAP.
Of the 2,978 Syrian refugees admitted to the United States since
September 11, 2001, not a single one has been arrested or deported on
terrorism-related grounds.
The United States is committed to assisting people of all
ethnicities, religions, and nationalities fleeing persecution. Since
September 2011, the United States has admitted 2,833 Syrian refugees, 4
percent of whom are members of religious minorities, including
Christians and other religious minorities, such as Yezidis. Pre-war
demographics indicated that Christians made up around 10 percent of the
population in Syria, or about 1.8 million Christians; however,
Christians account for only about 1.2 percent of the approximately 2
million Syrian refugees in Egypt, Iraq, Jordan, and Lebanon who are
registered with the United Nations High Commissioner for Refugees
(UNHCR). In Turkey, which hosts another 2.6 million Syrian refugees, we
do not possess data on the religious composition of such refugees,
which the Turkish Government, vice UNHCR, has registered.
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