t5 b65 gao visa docs 5 of 6 fdr- 6-19-02 gao interview w dos lawyers re terrorist screening 829

8/14/2019 T5 B65 GAO Visa Docs 5 of 6 Fdr- 6-19-02 GAO Interview w DOS Lawyers Re Terrorist Screening 829

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--""Prepared by: Jody Woods[ ite: 6/28/02Job Code: 320087

i oIndex: Type bundle index hereDOC Library: Type library name hereDOC Number: Type document number hereState Lawyers, 6/19/02Record of Interview

Reviewed by: Type reviewer name hereReview Date: Type review date here

Purpose

Contact Method

W e met with Catherine Brownand Steve Fischle, lawyers for the statedepartment, to discuss the legislative basis for visa refusals. Specifically,we discussed how the Immigration and Nationality Act could be improvedto serve as a better screen against terrorists.In person

Contact Place State DepartmentContact Date June 19, 2002

Follow-up at State Department Exit (Fischel), June 23, 2002Follow-up phone conversation (Brown), June 28, 2002Participants

History of theImmigration Act

State Department ^Catherine Brown, Assistant Legal Adviser for Consular Affairs (L/CA),Office of the Legal Adviser.F ISteve Fischle. Office of Legislation, Regulations and AdvisoryAssitanceCVO/L),| |GAPJudy McCloskey, AICMary Moutsos, O GCJody Woods, Senior AnalystKate Brentzel, AnalystGabrielle Anderson, Analyst

9/11 Personal Privacy

Ms. Brown explained that Congress has been of two minds on visaissuance; one side promoting greater border security, and another fearingabuse of the authority consular officers has to deny visas. Prior to 1990,the immigration standard included a broad standard that allow State todeny potential terrorists without needing specific information on theirlinks to terrorism. That immigration law was enacted in the 1950s, mainlyin reaction to the growth of communism. Ms. Brown explained that in1990, fearing that consular officers were abusing this clause to deny wholeclasses ofpeople, revised the immigration law and raised the bar torequire that applicants denied on the basis of terrorism fit a very specificdefinition and required that State report to Congress quarterly on casesthat were denied under the new clause (INA 212(a)3b).' This, in practice,

1 Auditor's Note: Wesuspected that this change in legislation may have been prompted by the fall ofthe Soviet Union, since it also contained a clause on terrorists.

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Prepared by: Jody WoodsPate: 6/28/02Job Code:320087Index: TypeDOC Library: Type

DOC Number: Typecaused State to purge its name check system and strip out thousands ofnames that would havefit the pre-1990 statute but not the post-1990statute.2Mr. Fischel noted that since 1990, Congress has added more, and looser,definitions of terrorist activity. In 1994, they added "incitementofterrorism" to the list of qualifying definitions. Most recently,the Patriotact adding section 212(a)3(f) on terrorist organizations, added "endorsesterrorist activity",and changedthe standard from "reason to believe" to"reasonable suspicion". Ms.Brown stated that it is unclear how thesechanges may result in more denials on terrorism grounds. She did notknow of any cases yet in which State had used 212(a)3(f).

Changes needed interrorism clause-212a(3)bGeneral ImpressionsWhile Ms.Brown stated that U.S. Immigrationlaw is clearly designed tobe a screen against terrorists, both Ms.Brownand Mr.Fischle felt that thelaw could be improved to give them more flexibility in denying applicantson terrorism under section 212(a)3(b).Current requirementsMr. Fischel explained that under the current process, the visa office wouldreceive a case that contains a security advisory opinion and relatedintelligence informationfrom State INR. Mr.Fischel stated that inpractice, most of the cases they see come as a result of a security advisoryopinion generated from a CLASS name check match on the applicant,although consular officers have the discretion to send in advisoryopinions on any applicant. If they feel the intelligence informationprovided means that the applicant falls into one of the definitions ofterrorist activity they can deny the visa under section 212(a) 3(b) of theImmigration and Nationality Act. Once they deny the visa, they arerequired to report the reason for the denial in quarterly reports toCongress. These reports are classified, but Mr.Fischel noted that oftenthe explanation for the denial is very brief, only a sentence or two.3

2 Mr. Fischel noted that many of these names were not terrorists, but were communists.3 Auditor's Note: Wehave requested these reports on numerous occasions from both the StateDepartment and from the Congressional Intelligence Committees but were denied each time. Werequested the reports again in this meets, and Ms.Brownstated that due to the classification level,other intelligence committees only agreed to release the information to Congress. She reconunendedthat we write a letter to State requesting the information andnoting that we have the approvalof theCongressional committees that we can receive that information.

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Explanation of214(b)

Different standards required for Viper. TIPOFF. 212faWV)Mr. Fischel explained that the level of connection needed to send in a visaviper, include a name in TIPOFF,or deny a visa differs. Visa viper cablesrequire the lowest threshold of evidence to prove a connection, followedby TIPOFF, followed by 212(a)3(b).Need for change to 212fa)3ftrtMr. Fischel stated that 212(a)3(b) should be revised to give StateDepartment more flexibility in denying visas. Both felt a simpler statutethat was closer to the authority they had prior to 1990would give Statemore flexibility to deny visas on terrorist grounds.Basis for a 214(b^ denialM s. Brown and Mr. Fischel offered mixed opinions on what could bedeemed proper basis for an intending immigrant (214(b)) denial. Bothagreed that an applicant must prove they have ties to their home country,but had mixed opinions on how much discretion posts had in defining ties.For example, when asked if they felt Saudi Arabia's pre-9/11 policy of notsubjecting Saudi citizens to 214(b) was a correct application of214(b),both said yes.When asked if consular officers could deny on 214(b) if they didn't believethe purpose ofvisit that the applicant claimed, both responded yes. Ms.Brown added, though, that 214(b) should not be used too broadly.

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'Prepared by: Jody WoodsDate: 6/28/02Job Code: 320087

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Explanation ofFraud DenialsAffect of Interviews

Review Procedures

Visa Classes not subject to 214(b)Mr. Fischel told us that non-immigrant visa classes H and L, as well as allimmigrant visas are not subject to 214(b).Ms. Brown stated that applicants could be denied for fraud under212(a)6(c) (???), but that the nature of the fraud has to be material to theircase.Ms. Brown stressed that consular officers do not need to intervieweveryone. Consular Affairs is resource constrained and therefore can'tafford to interview everyone. She stated that while the interview is arequirement, it can be waived. Both Ms. Brown and Mr.Fischel felt that itwas speculation to guess whether any of the 19 lujackers would have beenturned down if they'd been interviewed.Ms. Brown informed us that consular managers are required by FederalRegulation 41-121 to review allrefusals made by a consular officer. Sheexplained that this regulation was put in place to introduce fair play intothe visa process since it is not subject to judicial review. When asked byissuances aren't reviewed, Ms.Brown stated that it was a resource issue.Mr. Fischel noted that the Visa Office had recently sent out guidance toposts requiring them to spot check issuances. Hesaid it has always been"good" consular manager practice to spot check issuances.Mr. Fischel and Ms.Brown were under the impression that thereorganization of the Homeland Security Department would take theauthority to issue visas away from consular officers. The Secretary ofState would still have the authority to deny, but Homeland Security willnow be able to give instructions directly to consular officers. Ms. Brownstated that this does not reflect the current legal authority that theAttorney General has. Mr.Fischel felt that it was dangerous to movetoward a system in which visa issuance and border checks are allconducted by the same agency.Mr. Fischel and Ms.Brown stated that State has engaged a numberofagencies to get more intelligence on terrorists into the system. Theystressed that because the current system is dependant on this information,information sharing with other agencies is critical. Having intelligence onapplicants has already led to numerous denials on terrorism grounds.They noted that even if they receive the information after an applicant hasbeen given a visa, the Secretary of State can revoke the visaMs. Brown added that resource constraints within consular affairs drovemuch of their implementation efforts in the 1990s. She stated thatallowing State to retain MRV fees allowed consular affairs to develop acutting edge name check system. Shewarned, however, that resourceswould continue to be a problem, especially if consular officers arerequired to conduct additional security measures.

Effect of HomelandSecurity

Need for betterinformation sharing

ResourceConstraints

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Prepared by: Jody Woods Index: TypeDate: 6/28/02 DOC Library: TypeJob Code: 320087 DOC Number: TypeBoth lawyers felt that training for junior officers could be improved, butthey supported the idea of allowing junior officers to adjudicate visas. Mr.Fischel stated that foreign service officers cannot make a career out ofadjudicating visas.

-p , j Ms.Brownand Mr.Fischel stated that pressure to issue visas at anr reSSUre lO ISSUC embassy level does exist and they get information onthese caseson

occasion. Mr.Fischel stated Ambassador Kennedy from Ireland was evendisciplined for putting such pressure on consular officers. Herecommended that we talk with the State IG about their cases.4

'Auditor's Note: I e-mailedthe IGabout this question. Theire-mail response stated thatwhile theywere unaw are of any formal reports on pressure to issue at posts, they do on occasionhave to have astern conversation with Ambassadorsand DCMs on occasion.

Page 5 Record of Interview

t5 b65 gao visa docs 5 of 6 fdr- 6-19-02 gao interview w dos lawyers re terrorist screening 829

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