GAO Issues Its First Visa Waiver Program Report Since the Law Was Amended

By Dan Cadman on June 14, 2016

The Government Accountability Office (GAO) issued a report last week about the Visa Waiver Program (VWP), which permits citizens of approved nations to enter the United States as short-term visitors without the need to seek visas from U.S. consular officers. "Visa Waiver Program: DHS Should Take Steps to Ensure Timeliness of Information Needed to Protect U.S. National Security" is the first report on VWP since the law creating the program was amended.

The workings of the VWP are of extreme interest to federal legislators in light of the spate of terrorist attacks the European Union (EU) because many of those states, such as Belgium and France, are VWP participants and some of the jihadi terrorists who committed the attacks were their own citizens. Thus, the VWP has important ramifications for American homeland security and it is for that reason that Congress recently enacted, and the president signed into law, amendments designed to bolster the security aspects of the program, although the president then immediately issued waivers for key portions of the amendments.

GAO's recommendations surround two key findings:

  • First that the Department of Homeland Security (DHS) has been late with, or even failed to submit, mandated reports to Congress on data and facts about participating countries that establish (or disprove) that they and their citizens who use the program to enter the United States are in compliance with its requirements.

  • Second, that participating VWP states are not routinely sharing information on terrorists and criminals, as required in the agreements underlying approval for their citizens to participate in the program, at least in part because DHS has not set deadlines to require compliance with the agreements and provision of this critical information.

As to the first finding, I harbor minor sympathy: Many departments and agencies are plagued with such a plethora of mandated reports that one can easily imagine spending more time writing reports than actually doing any work. But, on the other hand, DHS is its own worst enemy. It has so willfully ignored Congress's oversight role and, at the direction of the administration, been so casual and abusive about enforcing compliance with immigration statutes, that it's as if there were a flashing neon light over DHS headquarters inviting legislators to pile on even more reporting requirements.

What's more, the missing or late reports can mask an even more significant problem not directly addressed in this GAO report, which is that DHS is required by law — biannually at minimum — to evaluate each country's compliance with the requisites underpinning their continued participation. This can be a time-consuming and expensive proposition, because it often involves sending cross-disciplinary teams of subject matter experts from the relevant DHS agencies to visit a participant country, examine its passport-producing facilities, observe port of entry inspections, consult with counterpart experts in the countries' immigration organizations, etc. The department has not always conducted the required evaluations, and it is no surprise then that reports are late or even missing in action.

The second finding is more significant in terms of homeland safety. As GAO puts it in the desiccated prose of the bureaucracy:

In August 2015, DHS decided to require VWP countries to implement agreements to share terrorist identity and criminal history information; previously, VWP countries were required to enter into, but not to implement, these agreements. However, contrary to standard program management practices, DHS did not establish time frames for instituting the amended requirements. In December 2015, Congress passed a law requiring that VWP countries fully implement information-sharing agreements in order to participate in the program. Time frames for working with VWP countries to implement their agreements could help DHS enforce U.S. legal requirements and could strengthen DHS's ability to protect the United States and its citizens. (Emphasis added)

On the surface, it is difficult to fathom why a law would be written requiring bilateral agreements with various countries and not require that they be implemented — particularly about agreements that cover the sharing of information about criminals and terrorists. It is equally difficult to believe that a bureaucracy would not insist on implementation of such an agreement, once concluded. But this is an example of politics and international diplomacy at work. The agreements formed a necessary part of any legal framework creating a VWP, at least from the "optics" point of view. Our legislators could hardly add their support to a proposed statute to create a program allowing countries to withhold information about their nationals, if such nationals would be visiting the United States. Thus the murky language that essentially dumped the matter of figuring out how to obtain compliance with the agreements onto the bureaucracies of the executive branch.

But from the very start this has been a particularly thorny issue for EU member states that participate in the VWP because they have argued, repeatedly and strenuously, that routinely providing such information would be in violation of the Union's human rights charter and privacy laws. Thus, the equivocal language in the statute (now changed by way of the statutory amendments referred to earlier to require implementation). There may be some change of heart among European states given the Paris and Brussels terrorist attacks, but one can be sure that there will still be at least some residual intransigence within the sprawling EU bureaucracy, if not from within the countries themselves (which have in the past pointedly noted that Americans enjoy reciprocal visa-free privileges in their countries).

The question of whether the agreements will in fact be implemented may become a matter of political will. Is the next administration going to insist on routine and timely receipt of the information, or will it turn a blind eye toward the requirement in light of the foreign policy difficulties that compliance represents? That will certainly depend in part on who sits behind the president's desk in the Oval Office.

It will probably also require pushing the Department of State (DOS) extremely hard to insist that they in turn press the matter with foreign ministry counterparts of participating VWP countries and at the EU. It's worth remembering that U.S. immigration law also obliges DOS to withhold issuance of visas to countries that refuse or inordinately delay acceptance of their nationals who are being deported from the United States. Care to guess how many times that provision has actually been used to bring recalcitrant members of the international community back into line? No need to hold up all the digits on a single hand; if you did, you would have over-guessed by a factor of four.