At least three different bills are moving through Congress right now dealing with Syrians and national security. The approach taken by each of the bills is substantially different. Here are overviews and critiques of each.
This is the most straightforward bill, introduced by Senator David Vitter (R-La). It provides that no Syrian refugees will be admitted nor funds expended to that end, until the Secretaries of State and Homeland Security and the Directors of National Intelligence and Federal Bureau of Investigation (FBI) prepare enhanced plans and protocols, and certify them as adequate to the national security. The bill also requires the president to certify the plans in forwarding them to Congress, and provides that by joint resolution the Congress may reject the submission(s).
The best features of this bill are the practical impact of a time-out imposed by the time needed to develop plans for certification, and congressional ability to reject inadequate plans. The time-out seems particularly desirable in light of everything that has happened and been discovered in the wake of the Paris attacks. Nonetheless, the president has indicated he will veto any such bill since he is hell-bent on moving forward with refugee admissions, citing the 18- to 24-month vetting periods involved. He appears to conflate length of time with quality, where there can be little or none given the dearth of knowledge and resources to conduct the vetting.
This bill was introduced into the House by Rep. Michael McCaul (R-Texas), who is chairman of the House Homeland Security Committee. It has already passed the House, and awaits Senate action. The bill requires the FBI to conduct background investigations, and provides that no Syrian or Iraqi may be admitted as a refugee unless the Secretaries of State and Homeland Security, and the Directors of National Intelligence and the FBI certify to various congressional committees that the Syrian or Iraqi is not a threat to the national security. In other words, unlike the Vitter bill, it is not plans and protocols that are certified, but each individual alien. The bill has been criticized as simply adding a new bureaucratic layer to existing processes, but I'm unsure I fully agree. Potentially, it's a legislative poison pill, since senior officials at the level required should be extraordinarily loath to sign such a certification if they have any integrity at all (a question these days, I know). I don't think this is the best approach, but if it is to be the one – doubtful, since it likely will face presidential veto too – then there are some things that should be amended in the upper chamber to make it more airtight.
- No delegating certifications. If senior leaders think they can shove the certifications to underlings, and then pressure them to issue them, they will. It's the bureaucratic equivalent of leaving no fingerprints at the scene of the crime while being sure your compatriot's are everywhere to draw the eye away from you.
- No weasel words. The certification needs to be crystal clear: "I hereby certify that the following alien is not a threat to the national security." If, on the other hand, the designated officials can get away with "I certify that, to the best of my knowledge, and with the information presently available to me, blah blah blah," they will milk the certification of any and all meaning so that if the you-know-what hits the fan later, they can point to the multitude of qualifiers they used.
- Expand beyond refugees to require certifications in asylum and other immigration benefits cases. We have already seen instances of Syrians presenting themselves at southern land ports of entry asking for admission as asylees. If the national security concern is valid for refugees (it is), then it should apply to asylees as well, not to mention temporary protected status, withholding of removal, or other forms of immigration benefits or relief. And why not, for once, follow the law and hold asylum applicants in detention until a final decision is made, rather than release them and place the American public at risk?
- Add the Attorney General to the list of certifying officials. Asylum cases are often heard by immigration judges in the context of removal hearings. Immigration judges are employees of the Attorney General's Justice Department. Therefore she should also be required to submit the same certifications.
- Why just Syrians and Iraqis? If you're going this far, why not amend the bill to provide that other nationalities which pose a risk to the American people require similar plans, protocols, and certifications? Simply add a provision that requires the same thing upon joint congressional resolution for the nation involved – Somalia comes immediately to mind.
The Flake-Feinstein bill
News media are reporting that Sens. Jeff Flake (R-Ariz.) and Dianne Feinstein (D-Calif.) have joined with others to sponsor a bipartisan bill that looks not to refugee admissions, but to the visa waiver program (VWP). The bill does not appear to have been introduced yet, so I have been unable to find the text, but according to media accounts (see here and here), the bill would bar nationals from visa waiver countries from participating in the program if they have visited Iraq or Syria (ISIS strongholds) in the past five years, and instead require them to seek visas through the usual consular interview process prior to traveling to the U.S.
Some commentators are calling it a "commonsense response" to the moves to halt refugee admissions. I am not sure this assessment is true.
The border controls in Syria have collapsed, as is evident from the flow of jihadists in both directions, into and out of the country. And while Iraq is not quite so tenuous, it is far from hermetically sealed. If a would-be terrorist who has been in Syria or Iraq is known to the U.S. government, he will almost certainly already be on a terrorist or no-fly list, and never permitted to board the airplane headed this way in the first place. But if he's not in our government's databases of those believed to have visited those countries, and he does appear at one of our ports, how exactly are our border inspectors to know the individual has been in Syria or Iraq? There won't likely be entry and exit stamps in a passport saying "As Salaam Alaikum. Welcome to the Islamic Caliphate" or "Goodbye from IS. Thanks for visiting, and Allahu Akbar!"
I am strongly in favor of anything that shores up the soft spots of the VWP, about which I have many concerns (see here and here), and for that reason don't think the bill will do any harm. But it must be understood for what it is. It will likely prevent few aliens from entering via the VWP when their pasts are, at least on the surface, a blank slate. However if, after entry using the VWP, it is discovered that an alien did in fact visit Syria or Iraq, the fact that this was withheld provides federal immigration authorities the hook to arrest and expeditiously remove the individual for having been ineligible to enter under the program to begin with. Understand clearly though: that is after the fact, in which case it may be a race against time, assuming the alien is a jihadi bent on destruction.