Visa Waiver Program Under Attack from Libertarianish Senators

Rand Paul, Jeff Flake want to limit the types of French and European citizens America will let visit without a background check


Could they have just boarded a plane to New York? If they weren't on a disqualifying watchlist, yes. ||| The Telegraph
The Telegraph

Americans don't spend much time thinking about the three-decade old Visa Waiver program, through which the vast majority of machine-readable-passport-holding citizens from 38 countries (basically Europe + Australia, Brunei, Chile, Japan, Singapore and Taiwan) can travel to the United States for 90 days without a visa. When Americans themselves visit those participating countries without filling out any paperwork, they typically don't dwell on the international negotiations that made such frictionless travel possible.  

But given the national panic this week over the potential terrorist threat of admitting Syrian refugees, it was only a matter of time until people started noticing that, well, each of the perpetrators of the horrific attacks in Paris last Friday could have gotten into the United States through the simple act of buying an airplane ticket (at least, if they were not on disqualifying watchlists). As Sen. Richard Burr (R-N.C.), chairman of the Senate Select Committee on Intelligence, told the Washington Post this week, "I would tell you, from a threat standpoint, I'm probably more concerned with the visa waiver program today…. Were I in Europe already, and I wanted to go the United States, and were I not on a watch list or a no-fly list and I wanted to get there, the likelihood is I would use the visa waiver program before I would try to pawn myself off as a refugee."   

So today Sen. Dianne Feinstein (D-Calif.) and Sen. Jeff Flake (R-Ariz.) are expected to introduce a bill disqualifying from Visa Waiver anyone who has visited Syria and Iraq over the past five years.

"This would not say that they can't get a visa," Flake told the Arizona Republic. "It's simply saying that they would have to get a visa instead of having that requirement waived. And I think that's a prudent thing to do." And Flake, one of the more libertarian-leaning members of the Senate, isn't a refugee alarmist:

"I don't blame governors and others across the country for being concerned about this (refugee) program, partly because the administration has done a very poor job of explaining what kind of vetting process we have," Flake said. "It is thorough and substantial. While you always worry about gaps, of all the things to worry about, this one is down the list quite a bit. Visa waivers are quite closer to the top."

Sen. Rand Paul (R-Kentucky), meanwhile, wants to scrap Visa Waiver entirely for French citizens, and instead limit visa-less travel to the much more limited sample of those who have already passed through Customs and Border Protection's Global Entry program. And he announced Monday that he'd be introducing a bill putting a 30-day delay on would-be Visa Waiver visitors who do not use Global Entry, plus an "immediate moratorium" on refugees from 30 countries with "significant jihadist movement."

"This is not something new for me. I introduced many of these same concepts in the battle over the immigration bill and so I think it's about time. And I think Paris should wake us to the fact that we can't let just anyone come to this country without background checks," Paul said in a conference call, as reported by Politico. "I think the American people are going to call for it….And so I think there's a reasonable chance that we will get a vote on something having to do with the screening and or the barring of refugees from coming to this country."

And it's certainly not just Republicans, libertarianish or otherwise, getting on board. Rep. Tulsi Gabbard (D-Hawaii) told CNN this week that "We need to temporarily suspend this visa waiver program," because "it could just be a matter of hours, before someone travels through these different borders, someone who's become a foreign fighter, who's been fighting in Syria, and ends up here on the United States soil."

The U.S. Travel Association, a lobbying group representing tourism-related businesses, is pushing back, reminding lawmakers that the 20 million people who come to America each year on Visa Waiver tend to do things like spend money ($79 billion in 2013, for example). When the program was going under similar though less intense scrutiny earlier this year, former Homeland Security chief Michael Chertoff told a congressional panel that "I firmly believe that any withdrawal or departure from the Visa Waiver Program would be a huge mistake….Constructed in a way to powerfully reduce vulnerabilities in our immigration and travel system, it is my belief that the Visa Waiver Program offers significant benefits to U.S. national and economic security and should not be pulled back in a time like this but further evaluated for ways that can strengthen our security and the benefits it may yield."

These arguments may not be enough in a political season such as this. The post-Paris crackdown on immigration is not unlike the spasms in the direction toward gun control in the wake of a mass shooting—it doesn't matter if the proposed solution bears no relevance to the atrocity in question, or whether the enhanced dragnet of government databases would heavily inconvenience and sometimes thwart the rights of perfectly law-abiding humans (including Americans: remember, visa policies are reciprocal). What matters is that action X might save one life, and therefore is worth any cost.

Of all the proposals listed above, the Flake/Feinstein one looks the least objectionable at a glance. But still then, when you imagine those same restrictions being applied on Americans (as they almost certainly would be), you're faced with entire categories of professionals—military service men and women, journalists, NGO employees—who would now no longer be able to travel to Europe visa-free. And their counterparts in Europe will face extra barriers to entry before they can go to Disneyland or visit the Grand Canyon. To which skeptics will retort, what about Zacarias Moussaoui, Richard Reid, and Ramzi Yousef?

The Visa Waiver program has undergone many reforms since 9/11 (this Congressional Research Service paper from 2014 gives a thorough overview), and it's possible that the current bluster will lead to more helpful things, such as better information-sharing between participating governments about their terrorist watchlists. And it's also possible in the current geopolitical climate that the biggest pushes for tightening the security of the system will come not from America but Europe.

All that said, for those of us who have cheerfully participated in post-1989 globalization, traveling and trading and exchanging in ways that contributed to unprecedented peace and prosperity around the globe, weeks like this–after summers like that–make you hope we haven't already passed a high-water mark.