Original December 9, 2015; updated December 19, 2015
A “Terrorist Risk”
Following the terrorist attack in San Bernadino on December 2, 2015, an 11-month-old relatively dormant bill to amend an American law to impose visa restrictions on select foreign nationals entering the US gained traction when it was rapidly enacted in the US.
US Bill H.R. 158, the Visa Waiver Program Improvement Act 2015 (“HR 158“) amends the US Visa Waiver Program to:
- Effectively deem 4 countries as a “terrorist risk”;
- Effectively deem persons from the 38 countries that participate in the Visa Waiver Program, a “terrorist risk” who have been in Iran, Iraq, Syria or Sudan at any time since 2011;
- Effectively deem anyone who is a national of Iran, Iraq, Syria or Sudan as a “terrorist risk” for the purposes of the Visa Waiver Program;
- Deny entry to Iranian nationals, and the nationals of Iraq, Syria and Sudan who are also citizens of the 38 Visa Waiver Program countries to the US under the Visa Waiver Program;
- Deny entry to foreign nationals from 38 countries that participate in the Visa Waiver Program to the US if they have been in Iran, Iraq, Syria or Sudan;
- Require that the 38 countries that are part of the Visa Waiver Program improve the timeliness and quality of the information required to be provided to the US pursuant to the Passenger Information Exchange Agreement; and
- Allow the Secretary of Homeland Security to suspend a country from the Visa Waiver Program if that country fails to provide information to the US consistently or fully.
Background on Visa Waiver Program
The Visa Waiver Program was established in 1986 to allow people in 38 countries, such as France, the UK, Germany, Italy, Australia and Belgium, to visit the US visa-free for 90 days in a reciprocating arrangement.
The US Visa Waiver Program is 8 US Code §1187, and it is that Code that HR 158 is amending.
Under the Visa Waiver Program, rather than apply for a visa, foreign nationals from 38 countries apply online for a travel authorization to enter the US. Under HR 158, that process will remain the same except that applicants will be required to report whether they have been to Iran, Iraq, Syria or Sudan or are nationals of Iran, Iraq, Syria or Sudan.
Once a person reports having been to Iran, Iraq, Syria or Sudan, their travel authorization request will be denied because they are deemed to be a “terrorist risk” for the purposes of the Program. Such persons will now have to apply for a visa to visit the US, instead of a travel authorization. That process is much longer and requires a review of the person from a terrorism risk perspective.
With respect to Iranian nationals, and nationals of Iraq, Syria and Sudan, the same applies — pursuant to HR 158, they are a “terrorist risk” for the purposes of the Visa Waiver Program, and will be denied entry to the US under that Program.
Background on Terrorism Threat from ISIS in Context of HR 158
US politicians who proposed, endorsed and voted for HR 158 have said that the only intent of HR 158 is to prevent individuals who are terrorist sympathizers from the EU who defected from their own countries to join the Islamic State (“ISIS”) and subsequently returned, from entering the US under the Visa Waiver Program. The US estimates there are 5,000 such persons from the EU. In reality, there are a lot more, probably closer to 40,000. The vast majority, if not all, went through Turkey to join ISIS in Syria or Iraq.
The inclusion of Iran in HR 158 is markedly notable because no defectors from any foreign country in the EU or elsewhere who joined ISIS went through or were radicalized in Iran. There is no such thing as ISIS in Iran, and Iran has zero tolerance for ISIS. Iran is mostly a Shi’a country; ISIS is a Sunni group that is, as part of its raison d’être, anti-Shi’a. Pursuant to the stated intent of the law, HR 158 should have exempted Iran purely on the basis of a counter-terrorism perspective. The inclusion of Iran was a last-minute decision made days before the Bill was voted on by the US Congress in early December.
The concern of American legislators is that ISIS has said that they are sending trained defectors back home to Western countries to pretend they became disenchanted with ISIS in order to regain entry to their countries of origin. ISIS believes that Western countries will welcome their defectors back (who are ISIS terrorists but who are trained by ISIS to look and sound like they are not) without prosecuting them for any or all of gang activity, war crimes, crimes against humanity, membership in a terrorist organization, terrorist financing, money laundering, providing material support for a terrorist organization or promoting terrorism. Rather, ISIS believes that Western countries will give defectors a “get-out-of-jail-free” card, treat them as victims, de-radicalize them and set them free, at which point their true identities will emerge so that they can complete their mission to harm us and our democratic way of life.
ISIS has said officially that Mexico is the route by which they will send their people to the US. This is information we all know in counter-terrorist financing law but we also know that if ISIS claims that Mexico is the preferred route, it also means they are looking at the opposite route – unfortunately that suggests Canada. Neither Mexico nor Canada invest in adequate counter-terrorism efforts, including counter-terrorist financing efforts compared with most other countries. Canada, in particular, has said that as its rushes in 25,000 Syrian refugees, it is relying on the UNHCR Iris scanning system for its ID verification (see here) of refugees, but that system is just a UN internal ID system which confirms that Refugee X who registers with UNHCR is Refugee X when they receive humanitarian aid, and for other purposes. It is not a system that verifies identity of a migrant or refugee with their national government. That would be impossible in Syria and UNHCR does not have the resources to confirm identities of refugees. This is not an ID verification system that is up to the standard of any bank for on-boarding a client, let alone a country for the intake of foreign nationals.
The US is understandably concerned about the prospect of ISIS entering their territory, particularly since we have known for about a year that ISIS has the ability to make real, but fake, passports from Syria and Iraq. These are passports that are machine readable, purportedly issued by the governments of Syria and Iraq with real government paper and tools, but that are issued by ISIS for their people, especially family members, high-ranking officials and sympathizers. The latter is to infiltrate the West, as described above. In 2015, the EU said that they detected 340,000 migrants and refugees in their space with fake ID – many more they did not detect.
Law enforcement will not be able to detect who is a member of ISIS versus a non-member, and which passports are legitimate versus illegitimate when dealing with ISIS generated passports involving nationals from Syria or Iraq from 2013 onwards, and thus that is the difficulty with Syria and Iraq.
There is no parallel concern in respect of Iran.
Significant Issues with HR 158
Entering a country as a visitor is a privilege, not a right and as a matter of law, the US may deny entry to whomever it wishes. That’s not to say, however, that HR 158 is not without legal and other concerns, especially in respect of Iran because its inclusion is inconsistent with the stated purpose of the law.
No Exceptions for Journalists, Lawyers, Doctors or Humanitarian Aid Workers
HR 158 exempts the visa requirement for foreign nationals who visited Iran, Iraq, Syria or Sudan if they were there for military purposes or for government purposes but not for any other purpose. That is a significant problem.
Routinely, many lawyers go to Syria and Iraq as part of human rights observation missions and lawyers go to Iran to work in the normal course – this activity does not make them a terrorist risk that requires that they be added to a database as part of a watch list for the purposes of reporting under HR 158.
Journalists from the EU routinely travel to Syria and Iraq to cover the conflicts in those countries, and other journalists travel to Iran to cover its emergence following the nuclear deal and those visits will render those journalists from the EU a terrorist risk for the purposes of the Visa Waiver Program. HR 158 will interfere with the ability of members of the press in the EU to do their jobs because if they travel to Syria, Iraq or Iran for the news, they will not be able to enter the US at all, or without applying for a visa and in addition to which they will be entered in a database as a “terrorist risk” (see below) for being in Iran, Iraq, Syria or Sudan.
Doctors and humanitarian aid organizations also routinely travel to Syria and Iraq to deliver humanitarian aid or humanitarian solutions, none of whom will be exempt and all of whom will now be deemed a terrorist risk for the purposes of the Visa Waiver Program. NGOs, including American humanitarian NGOs, are usually international with workers and volunteers from many countries, including many from the 38 Visa Waiver Program countries. These are people who put their lives at risk to save other people who are victims of the very terrorists that the US is aiming to keep out of the country. Assisting victims of terrorism will make foreign nationals who do humanitarian aid work in Syria, Iraq or Sudan a terrorist risk merely because they delivered aid in Syria and Iraq – the two jurisdictions where humanitarian aid is most needed.
Equally important, the United Nations, especially UNICEF And UNHCR, have hundreds of employees in Syria, Iraq and the Sudan engaging in humanitarian aid work – because no UN agency is a “government”, none of its workers or employees will be exempt from being included in a database of persons who were in Syria, Iraq or Sudan and all are now a “terrorist risk” for the purposes of HR 158 if they visited Syria, Iraq or the Sudan for their work.
Entities and persons who provide humanitarian aid to refugees, displaced persons and others who are victims of ISIS in Syria or Iraq are not likely to be defectors of ISIS who would pose a terrorist risk. But labeling them as such may materially adversely impact the willingness of foreign nationals from the Visa Waiver Program countries from engaging in humanitarian aid work going forward.
Surprisingly, not one NGO or UN agency that engages in refugee relief work has objected, formally or otherwise, to HR 158 or sought an exemption of behalf of humanitarian relief agency work before its passage or subsequently.
For the reporting system to work in the way desired by HR 158, the 38 Visa Waiver Program countries will have to collect and retain the traveling activities of their citizens, and red flag those of its citizens who have been to Iran, Iraq, Syria and Sudan retroactively since 2011 on the basis that such persons pose, by virtue of their travel, a “terrorist risk.”
Some of this red flagging already occurs in respect of visits to Turkey, Syria and Iraq between airlines and law enforcement but now it includes Iran and is retroactive to 2011. Countries in the EU that are part of the Visa Waiver Program may have privacy law impediments that prevent them from sharing information of this nature with the US.
More importantly, countries in the EU may have constitutional law impediments that prevent them from treating, as a matter of law, their citizens as a “terrorist risk” simply for having been in Iran, Iraq, Syria or Sudan or being a foreign national of Iran in particular, which is not an ISIS safe haven.
The law is overly broad because it paints nationals from four countries and anyone who has been there in the last five years as a “terrorist risk.” Iran has almost 80 million people and another 10 million that live outside Iran based on their laws of nationality. Syria has mostly a displaced population of 13 million – together, just those two countries combined equal 100 million people – they cannot possibly all be a “terrorist risk” irrespective of anything else.
Trade with Iran Will be Impacted from EU
It seems likely that some countries in the EU will be resistant to red flag their citizens who have traveled to Iran as a “terrorist risk” because of the growing number of countries in the EU engaging in lucrative commercial deals with Iran. Equally, EU citizens will not want to be flagged as a “terrorist risk” in government databases simply for having visited Tehran for trade and commerce, and be prevented from ever going to the US. It isn’t just the inclusion in government databases as a terrorist risk that is of concern for foreign nationals – some airlines also report to law enforcement when people book travel to certain destinations such as Turkey, Syria or Iraq. The airline reporting will now include Iran. As a result, a person visiting Iran for business purposes from a Visa Waiver Program country in the EU will be double-flagged –> first by the airline and then by a law enforcement agency for reporting purposes pursuant to HR 158 (and other security programs).
HR 158 will put a freeze on the willingness of business people in the EU to engage in trade with Iran.
HR 158 will also contravene at least three clauses of the Joint Comprehensive Plan of Action (“JCPOA“) with Iran, and will cause the EU to contravene at least one clause of the JCPOA.
It would not be surprising if the real purpose behind adding Iran to the list pursuant to HR 158 is to discourage corporations in the EU from engaging in trade with Iran in order to delay EU-Iran trade to give American corporations a level playing field in trade with Iran, which suggests Iran will be removed from HR 158 just as most US sanctions are lifted.
Pursuant to HR 158, the only four material countries whose citizens can engage in trade with Iran without being labelled a terrorist risk are Canada, China, India and the US.
HR 158 is particularly impactful for Iranians. That is because under Iranian law, all children of Iranian fathers are Iranian nationals unless they have formally renounced Iranian citizenship. Not many have and consequently, people in the EU who have Iranian parentage are, under HR 158, a terrorist risk and do not qualify for admission in the US under the Visa Waiver Program. HR 158 is specifically designed to capture this so-called dual citizen class of Iranians. The same applies for Syrians, who are no less impacted, however, they are less numerous and less spread across the EU or able to finance travel to the US.
A Change of Heart?
I suspect two things will happen in respect of HR 158:
(1) Iran will react negatively over HR 158 and will take some action to protect its trade relationship with the EU, including seeking support from the EU; and (2) some members of the US Congress will (i) change their minds about voting for HR 158, particularly if journalists from the EU become concerned regarding the implications of HR 158 and how it impacts their freedom to report the news in conflict zones like Syria and Iraq, without fear of being branded a “terrorist risk” under the Visa Waiver Program; and (ii) change their minds in respect of the fact that they failed to exempt humanitarian aid organizations and workers because it is inconsistent with US foreign policy in respect of supporting humanitarian aid delivery by the private and NGO sectors.
You can read our article in Quartz here on the issue of HR158.