Visa Waiver Program

by Michael Cutler

9-11FSA Families and Friends:

If you have been reading my commentaries, you know how concerned I have been about the Visa Waiver Program that enables aliens from some 27 countries to seek to enter the United States without first applying for a visa. The visa application process can be an effective screening mechanism to help our law enforcement officials prevent the entry of criminals and terrorists into our country as well as others whose presence in our country are not in our nation's best interests.

I was therefore happy yesterday, to receive an e-mail from a producer at the Glenn Beck program that airs on CNN Headline News, to let me know that Glenn Beck was scheduled to interview none other than Michael Chertoff, the Secretary for Homeland Security. I have been on Glenn's excellent program a number of times and Glenn's producers and I often discuss my perspectives on immigration-related issues. I was therefore gratified to learn during my conversation with one of Glenn's producers that Secretary Chertoff was going to be asked about the Visa Waiver program. I warned him that Mr. Chertoff would probably do what he does best, obfuscate the issues concerning immigration and border security rather than provide direct answers.

I was therefore quite interested to see how the interview with the Homeland Security Secretary would go and here is a transcript of the portion of the interview by Glenn Beck and Michael Chertoff: (You can read the transcript of the entire interview at: http://transcripts.cnn.com/TRANSCRIPTS/0801/17/gb.01.html ) :

BECK: OK. You said also today that your -- on the BBC, it was reported today in America, that you said that Europe is now a terror threat because you say Europe is a staging ground. We've seen this one coming for an awful long time. But we have the visa waiver program with so many European countries.

Why don't we get away from a program that you said, quote, "Visa waiver program creates very small windows for us to check these people out," end quote.

CHERTOFF: Well, that's been the problem, Glenn. For countries where there is no visa requirement, we generally first encounter a person who comes into the country when they arrive at the airport.

But here's the good news. We got the authority last year to put into effect what we call electronic travel authorization.

And what this means is people, even from visa waiver countries, before they come, will have to register online with the United States, will get information about them, will be able to check them out well in advance of their coming. And that will give us the kind of security that we've previously only gotten when we had visas from people coming from overseas.

When you read that portion of the interview, what do you think Mr. Chertoff is saying and do you feel confident that the government is finally, more than 6 years after the terrorist attacks of 9/11 finally plugging a huge hole in our nation's security system?

I will give you a hint. Please re-read the key sentence in that interview:

But here's the good news. We got the authority last year to put into effect what we call electronic travel authorization.

As I predicted, Mr. Chertoff artfully dodged Glenn's question about the Visa Waiver Program!

The amazing thing is that without missing a beat, when Glenn Beck asked Secretary Chertoff about the Visa Waiver Program, a program that actually flies in the face of the findings and recommendations of the 911 Commission, Michael Chertoff had a really slick way of being deceptive to create an illusion that does not coincide with reality. He spoke about having the authority to implement the Electronic Travel Authorization program, but of course in so doing, attempted to provide the illusion that this program is up and running. In point of fact, I wonder if they will ever implement the program and, if they do, how much longer we will have to wait for it to be put into service and how will it be implemented. These are important questions that Mr. Chertoff would, I suspect, not want to answer.

First of all, if you look carefully at Chertoff's statement- he did not state that they had implemented "Electronic Travel Authorization, only that they had gotten authorization to implement it. This is more than 6 years after the devastating attacks of 9/11! Chertoff did not begin to even speculate on when they would be able to implement this program (If ever!) I do not care what program has been authorized- I want to know that the program is in place- not that maybe some day they will implement this program, that will most likely still not be as effective as simply requiring visas from foreign visitors who come to our country!

My point is that the administration has not implemented "Electronic Travel Authorization," nor has anyone from administration including Mr. Chertoff ever talked about when they plan to put this program into use. Furthermore, I do not think that this electronic authorization program will be as beneficial to national security as is the visa requirement. In fact, to help you understand the reasons I hold my views on the Visa Waiver Program I have attached a portion of a commentary I recent wrote about that program below. Additionally, The GAO has conducted a number of investigations and written a number of reports about the risks inherent in the Visa Waiver Program. One of those reports, entitled "BORDER SECURITY: Stronger Actions Needed to Assess and Mitigate Risks of the Visa Waiver Program" that can be found out:

http://www.gao.gov/new.items/d06854.pdf

Furthermore, questions concerning Electronic Travel Authorization remain- presuming that they will ever implement this program at all- Will the intending foreign visitor have to sign any document relating to his application? This is critical. Remember, among the benefits that the visa requirement accrues is potential for prosecuting an applicant for a visa who lies (commits fraud) on his application. Without a signature, I doubt anyone would be subject to criminal prosecution for committing visa fraud. I would also be curious to know what questions will be asked. The application for a tourist or business visa contains some 40 questions. You can read the actual application for a tourist visa at:

https://evisaforms.state.gov/ds156.asp

On May 11, 2006 I testified before the House Subcommittee on Oversight and Investigations of the Committee on International Relations on the topic: "VISA OVERSTAYS: CAN WE BAR THE TERRORIST DOOR?" You can read a transcript of that hearing here.

I believe that a review of that hearing will provide you with additional insight. Meanwhile I have provided you immediately below, with a portion of a previous commentary I wrote about the Visa Waiver Program and its failings I believe you will find to be helpful to understand my position:

The Visa Waiver Program and its inherent deficiencies:

The Visa Waiver Program permits aliens from 27 nations to seek to enter the United States without first applying for a visa. A visa is generally a stamp that is placed in the passport of an arriving alien that has a number of security features built into it to make it difficult to be counterfeited. The visa is an indication to the Customs and Border Protection inspector at a port of entry that the arriving alien has been interviewed at an American embassy or consulate and has satisfied the U.S. consular official overseas that he (she) meets minimal standards to be given the visa. It is important to note that the visa is not a guarantee of admission, but represents the first step in the process for an alien to seek to lawfully enter the United States . The actual decision to admit an alien into the United States is made by a CBP inspector.

The countries that participate in the Visa Waiver Program are:

The visa requirement is not always done as thoroughly as I believe it should be, but it does offer four distinct advantages that are worth considering.

1. By requiring visas of aliens who seek to enter the United States , this process helps to screen potential passengers on airliners that are destined to the United States . Richard Reid, the so-called "Shoe Bomber" was able to board an airliner to come to the United States although he had no intentions of entering the United States , his apparent goal was to blow up the airliner and its many passengers somewhere over the depths of the Atlantic Ocean by detonating explosives he had concealed in his shoes. Because he is a subject of Great Britain , a country that participates in the Visa Waiver Program, Reid did not obtain a visa before he boarded that airliner.

2. The CBP inspectors are supposed to make a decision in one minute or less as to the admissibility of an alien seeking to enter the United States . The visa requirement helps them to do a more effective job. Their's is a tough job I can certainly relate to, I began my career at the former INS as an immigration inspector at John F. Kennedy International Airport in New York and worked there for 4 years before I became a special agent.

3. The application for a nonimmigrant visa contains roughly 40 questions that could provide invaluable information to law enforcement officials should that alien become the target of a criminal or terrorist investigation. The information could provide intelligence as well as investigative leads. You can check out the application for a nonimmigrant (tourist) visa by clicking on this link:

https://evisaforms.state.gov/ds156.asp

4. If an alien applicant lies on the application for a visa that lie is called "visa fraud." The maximum penalty for visa fraud starts out at 10 years in jail for those who commit this crime simply in order to come to the United States , ostensibly to seek unlawful employment or other such purpose. The penalty increases to 15 years in jail for those aliens who obtain a visa to commit a felony. For aliens who engage in visa fraud to traffic in narcotics or commit another narcotics-related crime, the maximum jail sentence that can be imposes rises to 20 years. Finally, when an alien can be proven to have engaged in visa fraud in furtherance of terrorism, the maximum penalty climbs to 25 years in prison. It is important to note that while it may be difficult to prove that an individual is a terrorist, it is usually relatively simple to prove that the alien has committed visa fraud when there is fraud involved in the visa application. Indeed, terror suspects are often charged with visa fraud.

5. The charge of visa fraud can also be extremely helpful to law enforcement authorities who want to take a bad guy off the street without tipping their hand to the other members of a criminal conspiracy or terrorism conspiracy that the individual arrested was being arrested for his involvement in terrorism or a criminal organization.

Under the auspices of the Visa Waiver Program, none of the significant benefits to law enforcement or national security apply.

There are days at international airports such as JFK that more than 80 of the arriving aliens are admitted under the Visa Waiver Program. Think how many aliens have been admitted into the United States since September 11, 2001 without having to first complete an application for a visa. The clock is ticking and time is most certainly not on our side!

As I have noted on so many previous occasions, ours is supposed to be a government of the people, by the people and for the people. The government is supposed to operate in a manner that is consistent with the needs and concerns of the citizens of our nation. Our leaders are supposed to be accountable for what they do and don't do, yet time and again the leaders of our nation have the chutzpah to stand before the cameras and microphones and use creative "Newspeak" to obfuscate the issues and the facts. We the People are entitled to candor on these critical issues. Mr. Chertoff as the director of an agency that is charged with securing our nation's security and the safety of our citizens needs to speak candidly. Our government is not, apparently concerned about the rights or concerns of the "average" American but does appear to be concerned about the issues of concern to foreign governments and multinational corporations. The Founding Fathers must be rolling in their graves along with more recent political leaders who, I am certain, would never and could never have imagined that the sacrifices of the "Greatest Generation" to protect and preserve this great nation are being undone by the current crop of alleged leaders in Washington !

This disgraceful performance by Michael Chertoff should make everyone's blood boil! This is why I have come to refer to the Department of Homeland Security as being the Department of Homeland Surrender!

Democracy is not a spectator sport!

Lead, follow or get out of the way!

Michael Cutler