On the weekend of May 10 and 11, six French television journalists visiting Los Angeles to cover the massive E3 video-game expo were stopped for questioning by LAX border guards, barred from entering the country, and sent back to Europe. "These journalists were treated like criminals—subjected to several body searches, handcuffed, locked up and fingerprinted," Reporters Without Borders Secretary-General Robert Ménard complained in a letter to the American ambassador to France.
Their offense? Trying to enter the U.S. the same way European journalists have been coming for the last 17 years: on the Visa Waiver program, which allows the citizens of 27 friendly countries (from Andorra to Switzerland) to visit the States up to 90 days without a visa, as long as the trip is for "business or pleasure." Journalism, according to American consular writ, does not qualify as either.
Those loose cannons who commit unauthorized acts of reporting "have defrauded the government," said Chris Bentley, spokesman for the Bureau of Citizenship and Immigration Services (BCIS). To be in compliance, foreign hacks need a special "I-visa," which costs $100 to apply for, and requires a "comprehensive letter from the journalist's employer on the employer's letterhead identifying the journalist and describing in detail the nature and function of the journalist's position." Not exactly tailor-made for scrappy freelancers or globe-trotting ambulance-chasers.
This regulation and a host of others like it were in place long before Congressional fries were liberated from the Vichy regime; what's new is the enforcement. Since late last fall, when the Department of Homeland Security installed a comprehensive immigration database (the jauntily named Consular Lookout and Support System, or CLASS), yesterday's minor visa transgression is today's "no-entry" stamp.
"I've heard about people being sent back to Germany if they overstayed one day on a previous visit," said Michael Wolff, public affairs officer of the German Consulate in L.A. "This is not surprising to me."
Will journalists' records be scoured for possible reporting infractions during business/pleasure visits? It remains to be seen, but in the era of Google and Lexis-Nexis, it's easier than ever to track down a reporter's output. And, post-Sept. 11, U.S. immigration authorities appear less and less tolerant of loophole-seekers
"If some of [the reporters] are savvy, and have effectively defrauded the government by saying they're just coming for tourist purposes or just general business, they might want to be wary," warned Kelly Shannon, spokeswoman for the State Department's Bureau of Consular Affairs.
There is a potential downside to this approach: reciprocity. Consular relations, like trade policy and arms races, are notoriously tit-for-tat. Scores of countries may have specific visa policies covering journalists, but open democracies rarely enforce them (the only other country I've seen approach America's new enthusiasm was Cuba). If the rest of the world were to suddenly create CLASS databases of their own, I'd be banned from most of Central Europe.
Joel Brand, a former correspondent for Newsweek and Channel One who has reported from most of the world's hellholes, said he was only really pressed for a journalist visa by Yugoslavia, Russia, Indonesia, post-apartheid South Africa, Kenya and Pakistan. Not exactly the Open Society Club. He also "defrauded" several governments in order to do his job.
"Honestly, I faked such letters on a number of occasions when I needed such a visa or other accreditation," he told me. "I also lied numerous times, pretending to be a businessman or a tourist to gain entry into a country that had onerous media visa requirements. It's just a part of the job, dealing with corrupt and onerous governments that want to hinder or keep tabs on the foreign press."
Enforcing the regulation also puts Homeland Security Officials in the curious position of deciding who is and is not a "journalist." Does writing personal travel stories on a website count, if your audience occasionally leaves you tips? What if L.A. breaks out into another riot during your trip, and the newswires are desperate for eyewitness testimony?
Alas, these nuances are not explored by the State Department and BCIS on their exhaustive lists of people ineligible for the Visa Waiver program. In fact, the word "journalist" does not appear on either document, and even Homeland Security's I-Visa page makes it look like the journalism accreditation is more desirable than obligatory.
This has created confusion. Ménard, according to the Reporters Without Borders press release, "suggested that it should be clarified whether or not journalists travelling to the United States need a specific press visa." Shannon says the policy is clear. "We've always needed a letter that verifies employment and status," she said. "If one is going to be acting in a capacity as a correspondent for a foreign news agency, they do need an I-Visa."
The Department of Homeland Security, which took over management of the country's ports of entry from the mercy-killed Immigration and Naturalization Service on March 1, has the power to send back Visa Waiver tourists at its own discretion, because visitors waive their right to appeal by arriving without a visa. Even travelers with all the right paperwork are not guaranteed entry past the border guards, immigration officials stress.
"Even if… someone has a visa that says they are legitimately engaged in journalism when they come to the United States, the Department of Homeland Security Officer has incredible latitude when deciding whether or not to admit that person," said State Department Spokesman Lou Fintor.
The expulsion of the French television reporters could well have been a case of a lone LAX officer having a zealous day. (Since no one from the BCIS, the State Department, the Department of Homeland Security, the Bureau of Consular Affairs, or the LAX Customs and Border Protection Inspection was willing or able to confirm any of the details, we'll just have to guess.) In the scheme of things, preventing a half-dozen Europeans from covering a videogame conference ranks a bit low on the list of perceived Homeland Security overreaches. And who can blame the government for trying to rationalize the famously Byzantine immigration system?
Still… TV reporters?
"The chilling effect this could have, depending on how it is implemented, feels un-American," Brand said. "We're used to regimes like North Korea and Saudi Arabia denying legitimate journalists entry to their countries because they have something to hide. Why would we want to keep legitimate journalists away from the story?"