By: Mahira N. Khan

The January Paris attack against French magazine, Charlie Hebdo, the ISIS revolution, and the increased threat of foreign terrorist fighters (FTFs) question whether the Visa Waiver Program (VWP) threatens U.S. national security.  Many U.S. lawmakers demand changes to the current rules to control the entry of foreigners into the U.S. without visas, relying on the fear that terrorists may take advantage of the program to carry out future attacks within U.S. borders.

The VWP is a program of the U.S. Government administered by the Department of Homeland Security (DHS) in the mid-1980s that enables U.S. citizens or nationals of designated countries to travel to the U.S. for tourism or business up to ninety days without obtaining a visa.  Thirty-eight countries currently participate in the VWP, including the United Kingdom, Holland, Germany, and Canada.  The program allows up to nineteen million visitors to pass through U.S and the only thing a VWP traveler needs to do before traveling to the U.S. by air or sea is fill out an Electronic System for Travel Authorization form (ESTA) online. The form only costs fourteen dollars and automatically presumes that the applicant’s statements about prior visa denials and legal infractions are true.   When traveling via the VWP, travelers pass through ports of entry with screening.  The only barrier to U.S. entrance is a Customs and Border Protection (CBP) officer at the port of entry, who stamps the passport with or without minimal questioning and with no means of verification.

The program was conceived in a time when citizens of “traditional European allies were not viewed as threats.” However the program took a turn after the September 11th attacks when convicted September 11th plotter and French national, Zacarias Moussaoui, boarded a flight to the U.S. via the VWP.  Similarly, British national Richard Reid (the “shoe bomber”) evaded security checks that would otherwise have been performed for non-VWP travelers.  Perpetrators of the 1993 World Trade Center attacks Ahmed Ajaj and Ramzi Yousef also entered the U.S. through the VWP using photo-substituted Swedish and British passports.

The Charlie Hedbo shootings that killed seventeen people in France and the surge of foreign fighters from Europe traveling to Syria to join the surging Islamic State group have prompted bipartisan legislative efforts by U.S. politicians who call for changes to the VWP. Senator Feinstein, a leading Senate voice on national security, plans to introduce legislation that would help strengthen the VWP’s security.  While her office did not provide any details of the proposed plan, she commented on the threat of sleeper cells posed by the current state of the VWP, stating, “[terrorists] can come back from training, they go through a visa waiver country and they come into this country … we have a big problem here.”  Representative Michael McCaul, Chairman of the House Homeland Security Committee, voiced similar concerns and recently co-sponsored legislation that would require DHS to consider additional steps to screen travelers more thoroughly.  The Homeland Security Committee is also investigating the VWP as a part of a “broad probe” into whether the Obama Administration has done enough to stem the flow of foreign fighters returning back to their European homes from Syria, and then potentially travel to the U.S. without a visa and carry out attacks here.  Some are even in favor of abolishing or suspending the program entirely.  In September, Hawaii and Pennsylvania, introduced bills that would suspend the VWP for countries who nationals have joined or been trained by the Islamic State.

The main concern the U.S. faces, as addressed by Law Professor Nathan A. Sales, is the “profound and growing threat from radicalized Europeans.”  There is an ever-increasing fear that extremists who have received training in Iraq and/or Syria and since returned back to Europe may eventually try slipping into the U.S. undetected through the VWP.  Reports estimate that at least 3,000 of the Islamic State’s fighters come from Europe, with an estimated 1,000 from France.  However, suspending or abolishing the program is not an option even with these statistics.  U.S. authorities and the aviation industry worry that discarding the VWP would be problematic as it plays an important role in economic growth and “represents an important element of lawful commerce” between the U.S. and its international partners.  According to studies, in 2013 there were over seventy million tourists in the U.S. who added about $181 billion to the U.S. economy, spending around $4,500 per day while traveling in the U.S.

Suspending or abolishing the VWP would also discourage tourism almost entirely.  Obtaining a visa is often very difficult and expensive.  To obtain a visa, a traveler would have to visit a U.S. consular office, fill out lengthy documents and have a personal interview, and then pay several fees on top of a $160 fee for each visitor visa.  Moreover, the fees are non-refundable in the event the visa is denied.  In other words, cancelling the VWP would do more damage to the U.S. than it would provide protection, some experts say.

Homeland Security Secretary Jeh Johnson agrees and says, “the program is too valuable to discard” and offers a different solution, which provides: “To deal with the foreign fighter problem potential, the foreign fighter threat presented now globally, we need to develop more robust information sharing with our key counterterrorism allies overseas to share information about individuals of suspicion.”

In 2007, Congress enacted legislation that called on VWP-member nations to enter into various security agreements; however, a vast majority of the thirty-eight member nations never signed on to the agreements.  The bill, known as the Implementing Recommendations of the 9/11 Commission Act of 2001, required member nations to enter into the following agreements:

1. Homeland Security Presidential Directive (HSPD)-6: Requires member nations to share watch list information on “individuals known or appropriately suspected to be or have been engaged in the conduct constituting, in preparation for, in aid of, or related to terrorism” and then use that information in screening and protective processes
2. Preventing and Combatting Serious Crime (PCSC) Agreement: Requires member nations to mutually share criminal history information and biometric data (i.e., fingerprints, and DNA) for law enforcement purposes
3. Lost and Stolen Passports (LASP) Agreement: Requires nations to report, or make available through INTERPOL or other means as designated by the Secretary of Homeland Security, any information about the theft or loss of passports within a “strict time limit”

These existing intelligence and information sharing agreements should be fully implemented as originally intended.  Additionally, there should be additional protocols that allow authorities to identify “unknown threats,” or travelers who have managed to escape watch lists.  This would involve sharing airline reservation data or travelers who have traveled between VWP countries and “hot spots” such as Iraq and Syria.  Law Professor Nathan Sales believed that the Charlie Hebdo gunman Said Kouachi could have been tracked down through this measure because Kouachi was known to have traveled from France to Yemen through Oman in 2011.

The increased FTF threat also prompted action by the United Nations.  In September 2014, the U.N. Security Council unanimously passed Resolution 2178, which requires member nations to, among other things, implement effective border controls and controls on issuance of identity papers and travel documents, implement thorough measures to prevent counterfeiting and forged identity and travel documents, require airlines to provide advance passenger information to appropriate national security authorities to detect FTF movements, and improve international cooperation and information sharing for purposes of identifying FTFs and their travel patterns.

Stricter enforcement of the 2007 legislation along with the U.N. Resolution could make it possible to track the movements of known and potential threats.  Increased information collection and sharing will allow member nations to recognize travel patterns consistent with those of FTFs.  By tracking down these travelers and affording a little bit more scrutiny at the airports, there would be no need to abolish the VWP.  The U.S. will avoid exposing itself to great economic harm and keep FTF threats out of its borders.

 

By: Tara Schonhoff

Following the chaos of the 2000 elections (uncounted ballots; dangling, dimpled, and pregnant chads; and the Supreme Court choosing the President in Bush v. Gore), Congress passed the Help America Vote Act (HAVA) of 2002 to create some standards and support for state election administrators. HAVA provided funds to states to replace outdated voting machines, it created minimum standards for states to follow, and it created a new federal agency to serve as a clearinghouse for election administration – the Election Assistance Commission (EAC).

The EAC is designed to have two Republican commissioners and two Democrats. Its small size, Silver Spring office, and employees with hands-on experience in election administration evidence the agency was designed to be a pragmatic, less flamboyant tool for furthering election quality.

HAVA’s creation of the EAC fashioned a bipartisan resource of election practices for the states that was unique: aiding each state’s unique election needs through best practices. Congress overwhelmingly passed HAVA with a vote of 362 to 63 in the House, and 92 to 2 in the Senate (only Senators Clinton and Schumer, the current chair of Senate Rules and Administration, voted against it). Unfortunately, only a few years after its creation, the agency quickly lost its commissioners and, thus, its power. By 2011, the EAC’s four commissioner spots were all vacant, and the agency has not been fully staffed since. Left powerless, the EAC has not held a public meeting since 2011 and has stalled Kobach v. EAC in the 10^th Circuit Court of Appeals, debating states’ permission to alter voter registration forms. At that time, the House attempted to abolish the EAC altogether. Although that proposal failed, opposition to the agency continues with this year’s House budget proposal attempting to defund the EAC.

President Obama nominated two Democrat commissioners last summer and two Republican commissioners this summer. After returning from this August’s recess, the Senate Rules and Administration Committee finally started to focus on restocking the agency’s commissioners. Disappointingly, this month they failed to reach a quorum following September’s hearing on the Republican nominees, postponing a vote on commissioners yet again. Additionally, after waiting more than three years for a vote on her nomination, Myrna Perez withdrew her name.

Election lawyers predict that especially less experienced partisan nominees may continue to stall EAC progress. The Democrat’s choice of Matthew Butler is particularly unlikely to be confirmed if a vote is held after the Republicans take control of the Senate in January. This choice has already discouraged election lawyers and Democrats who see such partisan picks as another move towards the EAC slipping into gridlock.

The war against the EAC is a microcosm of a national voting war: those fearful of voters losing access or votes going uncounted versus those who fear election fraud and voter impersonation. If commissioners were finally appointed and the EAC remain fully funded, it could be a useful tool for those on both sides of this war.

Concern over voter impersonation has drastically increased the number of states with voter ID laws. In contrast, these laws have received backlash as suppressing votes, even at the Supreme Court level, calling these qualifications “modern poll taxes.” With the EAC’s authority to set minimal state standards for election administrators and serve as a clearinghouse for states to share successful practices, it could preclude the need for voter IDs or at least help maintain voter access to the polls when these laws are implemented.

Paper ballots lost credibility with the 2000 elections, leading many to switch to electronic equipment. But with voting technology changing drastically between election cycles, states need the EAC’s guidance. The EAC is a solution to this problem with its ability to certify voting machines in a market that is often questioned, and its dispersion of state funding for updated voting systems.

EAC nominee Thomas Hicks’ expertise as Senior Elections Counsel on the House Committee on Administration and would-be commissioner Christy McCormick’s time coordinating elections in Iraq and litigating at the DOJ Voting Section are two additional reasons why the Senate should act quickly to finish the nomination process and get the EAC up and running.

Florida’s 2000 ballot fiasco may be forgotten, but a repeat of this disaster is all too possible. The time is ripe for the EAC to staff up and set state standards before the 2016 Presidential election.

Voids left by the Federal Election Commission (FEC)’s partisan gridlock and the Voting Section of the DOJ’s inability to enforce portions of the Voting Rights Act (VRA) following Shelby County v. Holder make the EAC even more important as a voice of consistency in national elections.

By: Chelsea Morin

After six years of failed attempts made by House Republicans and Democrat blocking efforts, Congress has finally acted together to bring the Keystone XL Pipeline legislation to a vote. The catalyst? A Louisiana Senate runoff election that is set to take place December 6 between Senator Mary Landrieu (D) and Representative Bill Cassidy (R). These Louisiana politicians raced to get the Keystone Pipeline approved because of its popularity among residents and the economic impact that it is expected to have on the state.

As the name denotes, the Keystone Pipeline is a pipeline that would double the flow of heavy tar sands oil, around 830,000 barrels per day, from Canada down to Gulf Coast refineries. The pipeline would be expanded to transport the Canadian crude oil across the United States, meeting the demands of U.S. markets while also providing access to developing domestic oil supplies from Montana and North Dakota.  As a result, U.S. reliance on foreign oil supplies from Venezuela, Mexico, the Middle East, and Africa is expected to decrease. Last year, the State Department issued a report presenting its findings that the pipeline construction would contribute to the U.S. approximately 42,100 jobs, $2 billion in earnings, and increase the U.S. GDP by $3.4 billion. Additionally, the report found that Keystone XL would have little impact on climate change.

The State Department addressed environmental concerns in its report, stating that the corrosiveness of the tar sands oil is not the reason behind past pipeline bursts and leakage. Rather, such issues are caused by faulty valves and seals. To prevent any environmental damage, TransCanada has willingly agreed to 57 new safety procedures and plans to conduct inspections every two weeks on the pipeline to ensure that the valves and seals remain secure. TransCanada is also wholly responsible for any and all damage caused by the pipeline during maintenance and construction, which shows that the potential for neglect is low. Currently, crude oil is transported by rail, barges, and tank trucks – far more dangerous and expensive methods than Keystone XL.

Over the years, many have questioned whether Congress even has the power to approve the pipeline. In a 1968 Executive Order, President Lyndon B. Johnson officially vested the State Department with the permitting authority for “border crossing facilities,” which specifically included oil pipelines. However, Congressional Research Services (CRS) settled this issue and explained that, “if Congress chose to assert its authority in the area of border crossing facilities, this would likely be considered within its constitutionally enumerated authority to regulate foreign commerce.” Congress’s power to regulate foreign nations is found in the Commerce Clause of Article I, Section 8, Clause 3 of the Constitution.

At the state level, Nebraska is also questioning the constitutionality of the pipeline’s approval. A Lancaster County District Judge recently struck down a state law that authorized Nebraska’s Governor Dave Heineman to approve Pipeline XL’s route through the state. In the opinion, the judge declared the Governor’s action “null and void” because the new law unconstitutionally stripped the Nebraska Public Service Commission (“PSC”) of its permitting and routing authority granted to it by the state’s Major Oil Pipeline Sitting Act (“MOPSA”). The judge found that the Legislature could not “divest the PSC of jurisdiction . . . and vest such power in another governmental agency, body of government, or branch of government, except the legislature.” While the Legislature is permitted to enact “specific legislation” that preempts the PSC’s control, it “cannot absolutely and totally abandon or abolish constitutionally conferred regulatory control.”  The law’s defender, Nebraska Attorney General Jon Bruning, plans on appealing the decision. In the meantime, the Nebraska legislature may restore the PSC with the authority to rubber-stamp the route.

On November 14, the House passed the Keystone XL legislation (for the ninth time) that was introduced by Representative Cassidy. The legislation simply provides that TransCanada, a Canadian energy company, “may construct, connect, operate, and maintain the pipeline and cross-border facilities” as described in its application submitted to the State Department in 2012. Over on the Senate side, Senator Landrieu, motivated by the desire to keep her senate seat, brought her identical legislation up for debate, stressing the need for bipartisanship action as well as the pipeline’s economic benefits. On November 18, the legislation fell one vote short of the requisite 60 votes to overcome a filibuster.

Does the bill’s failure in the Senate mark the end of Keystone? As for the President’s approval, Keystone XL’s fate looks anything but hopeful, unless the new Senate is able to secure the requisite 67 votes for the bill’s passage. Regarding the attempts to end-run presidential approval, White House press secretary Josh Earnest told reporters that “[t]he administration . . . has taken a dim view of these kinds of legislative proposals in the past . . . [which] has not changed.”  Sources say that pressure exerted by the environmental activists has been the primary reason for the President’s stance on the pipeline matter. Over the years, President Obama has opposed the pipeline’s development by rejecting permit approval on multiple occasions and lobbying the Senate to reject amendments for the bill’s congressional approval. These actions have infuriated the pipeline’s most avid supporters, which include Republicans, moderate Democrats, oil companies, labor unions, and the Canadian government. Terry O’Sullivan, General President of the Laborer’s International Union of North America, expressed his view that “the project is not just a pipeline, but is a lifeline for thousands of desperate working men and women. The administration chose to support environmentalists over jobs – job-killers win, American workers lose.”

Soon-to-be Senate Majority Leader Mitch McConnell (R – KY), implied that the fight to pass the legislation is far from over. McConnell made it clear that the incoming Republican-led Senate will revisit the legislation as soon as it convenes early next year. Fortunately, the bill is expected to pass with at least 63 votes and supporters are confident that they can muster up the additional 4 votes to secure a veto-proof bill. Keystone XL will provide the U.S. economy with thousands of jobs, contribute billions towards the U.S. GDP, ensure energy security, and serve as a safe method of crude oil transportation. Thus, Keystone XL is more than a political pawn in the hands of legislators –it’s a device that crosses party lines, guaranteeing American jobs with relatively little to no danger to the environment.