Perez v. Mortgage Bankers: The Odyssey of the Paralyzed Veterans Doctrine and Auer’s Predicted Demise

Courtesy of University of Michigan

Courtesy of University of Michigan

By Jeff Elkin

In Vermont Yankee Nuclear Power v. Natural Resources Defense Council, a unanimous Supreme Court reversed the D.C. Circuit’s ungrounded imposition of procedural requirements on the Nuclear Regulatory Commission, explaining that judges may not impose procedural requirements above those prescribed by Congress in the Administrative Procedure Act. In Mortgage Bankers Association v. Perez, the Supreme Court again rebuked the activist D.C. Circuit for imposing procedures not warranted by the APA on agency action. The Court’s also-unanimous holding in Mortgage Bankers reaffirmed longstanding limits on judicial power over agency action. However, the Mortgage Bankers concurrences of three conservative Justices indicate that the Court’s own activists are planning to excise seventy years of precedent mandating judicial deference to an agency’s interpretation of its own regulations. The Court properly reproached judicial activism when it overruled the Paralyzed Veterans doctrine and should resist pressure from its activist Justices to abrogate generations of deference to agency interpretations of their own regulations.

 

The Paralyzed Veterans (aka Alaska Hunters) Doctrine

 

On July 1, 1997, the D.C. Circuit decided in Paralyzed Veterans of America v. D.C. Arena that each wheelchair seating section in the then-under-construction Verizon Center must have a line of sight to the performance area below. In dicta, Judge Silberman stated that once an agency has issued an interpretation of its regulation, the agency may only modify that interpretation as it would modify the regulation itself: via the notice-and-comment rulemaking procedures of the Administrative Procedure Act (APA), 5 U.S.C. §§ 551 et seq., 553 (notice-and-comment rulemaking) Though APA § 553(b) explicitly exempts “interpretative rules” (most often called “interpretive rules”) from notice-and-comment rulemaking, Judge Silberman reasoned that an agency must undergo notice-and-comment rulemaking when changing a sufficiently fundamental interpretation because the act of changing a fundamental interpretation is not an “interpretation.” Rather, it constitutes an amendment or repeal of the interpreted regulation and must be treated as an act of regular (legislative) “rulemaking” as defined in APA § 551(5). Judge Silberman’s rationale became known as the Paralyzed Veterans doctrine.

On June 4, 1999, the Paralyzed Veterans doctrine formally became law in the D.C. Circuit. In Alaska Professional Hunters Association v. FAA, the D.C. Circuit relied on Paralyzed Veterans to hold that the FAA violated the APA when it changed a longstanding interpretation of its regulation without notice-and-comment rulemaking. In so holding, the D.C. Circuit articulated the elements of the Paralyzed Veterans doctrine (aka the Alaska Hunters doctrine): notice-and-comment rulemaking is required for a change in an agency’s interpretation of its own regulation if the interpretation is (1) authoritative and definitive, and (2) that the plaintiff substantially and justifiably relied upon.

 

Mortgage Bankers

On July 2, 2013, the D.C. Circuit decided Mortgage Bankers Association v. Harris, striking the Department of Labor’s replacement of its definitive interpretation of its regulation without notice-and-comment procedures as invalidly promulgated under the Paralyzed Veterans doctrine. The element of the plaintiff’s reliance on the interpretation was eliminated as an independent, stand-alone element. Rather, reliance was held relevant as only one factor in determining whether a rule is “definitive.” Thus, the D.C. Circuit in Mortgage Bankers bucked its trend of narrowing the Paralyzed Veterans doctrine, instead moving it toward a categorical rule requiring notice-and-comment rulemaking for any change in an agency’s interpretation of its own regulation.

The DOL appealed to the U.S. Supreme Court for a writ of certiorari. On June 16, 2014, the Court granted cert in Perez v. Mortgage Bankers Association (renamed as such when Secretary of Labor Seth Harris was replaced by current Secretary Thomas Perez) and its companion case, Nickols v. Mortgage Bankers Association. The Perez action presented the following question: “Whether a federal agency must engage in notice-and-comment rulemaking pursuant to the Administrative Procedure Act before it can significantly alter an interpretive rule that articulates an interpretation of an agency regulation.” The Nickols action presented this broader question: “Whether agencies subject to the Administrative Procedure Act are categorically prohibited from revising their interpretative rules unless such revisions are made through notice-and-comment rulemaking.” The latter was the de facto focus at consolidated oral argument.

 

Majority Opinion: Justice Sotomayor

 

On March 9, 2015, the Court decided the Perez and Nickols cases in a consolidated opinion. For a unanimous Court, Justice Sotomayor explained that the D.C. Circuit had erred in requiring the Department of Labor to undergo notice-and-comment rulemaking prior to changing its interpretation of its regulations because the APA required no such procedure. This holding reaffirms the Court’s also-unanimous opinion in Vermont Yankee Nuclear Power v. Natural Resources Defense Council. There, the Court held that the APA imposes the maximum rulemaking requirements Congress was willing to impose on agencies, so courts violate the separation of powers and fundamental canons of statutory interpretation when they impose additional rulemaking requirements. The Vermont Yankee doctrine was articulated explicitly to end the D.C. Circuit’s recurrent practice of imposing extra-APA requirements on agency action, and the Mortgage Bankers Court used Vermont Yankee in exactly that way. The Paralyzed Veterans doctrine is no longer law.

 

Concurrences: Justices Alito, Scalia, and Thomas

Justice Alito wrote a concurring opinion solely to express his desire to weaken or overturn the rule of Bowles v. Seminole Rock & Sand and Auer v. Robbins. Under what is usually called the “Auer doctrine” (less commonly, “the Seminole Rock doctrine”), courts will grant controlling deference to agency interpretations of their own regulations. This doctrine pre-dates the APA and was held consistent with the APA in Auer. Justice Alito believes that tempering or eliminating the Auer doctrine will address concerns regarding “(1) the effective delegation to agencies by Congress of huge swaths of lawmaking authority, (2) the exploration by agencies of the uncertain boundary between legislative and interpretive rules, [and] (3) this Court’s cases holding that courts must ordinarily defer to an agency’s interpretation of its own ambiguous regulations.”

Justice Scalia separately concurred in the judgment to opine that the Auer doctrine was contrary to the congressional intent behind the APA. Justice Scalia argued that Congress would not have exempted interpretive rules from notice-and-comment rulemaking if it had known that (1) agencies would issue interpretations that are as binding as the regulations they interpret, and (2) courts would defer to agency interpretations of their own regulations. True to his textualist form, Justice Scalia justified this conclusion by reference to the APA’s command that judges, not agency personnel, “shall . . . interpret . . . statutory provisions, and determine the meaning or applicability of the terms of an agency action.” Despite that text being subject to varying interpretations, Justice Scalia would restore congressional intent by discarding the Auer doctrine and reviewing agency interpretations of their own regulations de novo.

Finally, Justice Thomas wrote a twenty-three page concurrence in the judgment arguing that the Auer doctrine and, by implication, the administrative state violate the separation of powers. Predictably, Justice Thomas relied on no Supreme Court majority opinions — but an extravagance of his conservative colleagues’ minority opinions, as well as law review articles and philosophical theories — to argue that Auer deference unconstitutionally delegates the Judiciary’s “obligation” to safeguard individual liberty. At the end of his radical essay on history and philosophy, Justice Thomas dismissed the doctrine of stare decisis as only mildly persuasive and concluded that he would “reconsider” the seventy-year tradition of deferring to agency interpretations of their own regulations.

Justices Alito, Scalia, and Thomas are surely joined by Chief Justice Roberts in their resolution to overrule the Auer doctrine. Only four Justices are necessary to grant cert, so the Court will surely “reconsider” the Auer doctrine in the near future. As with many other important issues in the past, the fate of the Auer doctrine depends on Justice Kennedy. Hopefully Justice Kennedy will respect the doctrine of stare decisis and refuse to join his activist colleagues in overturning the Auer doctrine.

Congressional Overlook: The Snubbed Victims of Labor Trafficking

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By: Daniel Schneider

In a seemingly rare showing of bi-partisan cooperation the 114th Congress has shown its ability to work together through support for a number of bills affecting United States domestic human trafficking legislation. It’s important to understand what exactly human trafficking is before focusing on what is being done to end it. US law defines “severe forms of trafficking in persons” in two parts, sex trafficking and labor trafficking. Sex trafficking, which exists when “a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such an act has not attained 18 years of age.” Labor trafficking which is “the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.”

While definitions of trafficking may vary, and other terms, such as modern slavery, are often used to describe the exploitation of persons, under domestic law, the definition above is currently used to describe this exploitation. It is also important to note that US trafficking law does not require a victim to be physically transported from one location to another to be considered a victim of trafficking.

Human trafficking is a global problem that affects an estimated more than 20 million people worldwide. In the United States this number is nearly 18,000 people trafficked into the United States each year with the number of children, youth, and other vulnerable groups at risk of exploitation estimated to be 244,000. While those numbers are important to understand the scope of the problem, it must be noted that identifying the total number of people currently suffering as victims of human trafficking is incredibly difficult especially because of the covert nature of trafficking.

In light of this problem, Congress in the last decade has passed legislation to increase protection for victims of trafficking in the United States. Bills such as the Trafficking Victims Protection Act, subsequent reauthorizations, and a handful of other laws which make up the bulk of US domestic legislation on human trafficking provide these protections. This legislation focuses US efforts to fight trafficking in a number of areas, such as, protection for victims, investigation and prosecution of trafficking offenses, and education of the public.

In the last session of Congress a number of bills were proposed and passed in an effort to increase protection and services for victims of trafficking as well as to further protect vulnerable groups from exploitation. These bills eventually died in the Senate, however, in the 114th Congress the attempt to strengthen US trafficking law found new life. Many of the bills going through Congress this year, focus specifically on child sex trafficking. A number of these focus on improving child welfare systems to better identify victims of sex trafficking, as well as strengthening services for runaway and homeless youth to improve prevention methods by protecting vulnerable youth from becoming victims.

While these improvements are certainly welcome, as any effort to end human trafficking would be, some claim more needs to be done, specifically for other types of trafficking victims. Victims of international and domestic labor trafficking do not receive nearly the same coverage in these bills as child sex trafficking does. While sex trafficking receives more attention, not only from the media, but also in legislation, labor trafficking, in fact, comprises the majority of human trafficking. Victims of labor trafficking in the US are often threatened with violence, deportation, often suffer from unpayable levels of debt, and other forms of coercion. Victims of labor trafficking are often susceptible to being exploited because of vulnerabilities such as immigration status, poverty, and a lack of strong labor protections.

While the new Congress’ focus on ending trafficking is laudable, as is their willingness to work together in a bi-partisan manner to end trafficking, since most of this effort has been spent on sex trafficking rather than labor trafficking. This is concerning because, as mentioned above, most victims of trafficking are victims of labor trafficking, not sex trafficking. Congress should continue to strengthen domestic trafficking legislation. Strong US domestic trafficking laws would set an example for other nations around the world, especially countries which the US State Department considers not in compliance with standards the US has set for combatting trafficking, as reported in the Trafficking in Persons Report published each year. However, more than only addressing sex trafficking, Congress also needs to focus more on labor trafficking and provide a level of services and protections commensurate with the scope of labor trafficking in the US and worldwide . Congress cannot afford to overlook such a significant portion of human trafficking victims and should seek to support all victims by offering protection and services equal to the needs of the victims.

Could SCOTUS’s Rehearing of Lethal Injections after Botched Executions Reverse Years of Death Penalty Jurisprudence?

By: Rachel Bond

Courtesy of takomabibelot CC BY 2.0

Courtesy of takomabibelot CC BY 2.0

The death penalty has been a topic of fierce debate ever since it was reinstated in the United States in 1977. The Supreme Court of the United States is about to hear yet another case regarding the death penalty, but this time the methods of lethal injection have changed. It is now a question of whether lethal injections as they are performed now are humane anymore. After botched executions in Oklahoma, Arizona, and Ohio, the court of public opinion has begun using strict scrutiny when it comes to lethal injection and the death penalty in general. It is uncertain whether the Court will take this approach in the upcoming Glossip v. Gross case.

Longstanding arguments exist both for and against the death penalty. Some of the most typical in favor of the death penalty are deterrence, retribution, and costs. There is no definitive study proving that the death penalty deters murder, nor that it encourages it. Retribution is a traditional argument, and a difficult one to rebut because you cannot quantitatively demonstrate satisfaction through avengement when someone is put to death in the same way you can measure the costs of the death penalty. However, many studies on costs have shown that cases involving the death penalty are much more costly than those where the death penalty is not on the table. Additionally, one thing seems prevalent upon a basic search in favor of the death penalty: there are very few credible websites advocating it. While there are many studies that address the validity of the death penalty, a lack of direct advocacy on the Internet might be a reflection on society’s view as a whole. When searching for information on the death penalty, putting no bias on the search terms, most of what comes up is opposition. Some of the most typical arguments opposing the death penalty are that there is no proven deterrence effect, it risks executing innocent people, and it is a waste of taxpayer money. These arguments address the lack of evidence regarding deterrence, and the costs involved. The risk of executing innocent people is mostly abstract because often there is no way to prove someone’s innocence after they are dead.

However, according to studies conducted by the American Civil Liberties Union, there have been 140 people exonerated from death row since 1973 after being proven innocent. The ACLU and other death penalty opponents feel this number speaks to the number of people who may have been executed before they could be exonerated, and that the risk of executing innocent people is just too great.

Recently, the United States has changed the lethal injection procedures from drugs that had been used since the 1970s to a new drug – midazolam. It is still part of a three-drug cocktail, but unlike the old drug, midazolam has no anesthetic properties. It is listed as an anesthetic agent, but never as an anesthetic itself. However states are now using it in place of an anesthetic before administering extremely painful drugs in lethal injections. States have had to switch their procedures due to hostility toward capital punishment in Europe, where a ban has been imposed on exporting drugs used for lethal injection. Before their use, doctors were already listing the possibly painful deaths the inmates would be experiencing. Their warnings beg the question whether our “humane death penalty” is actually carried out inhumanely.

The doctors’ warnings turned out to be at least partially correct. Around one third of lethal injections using midazolam have had “extremely troubling problems.” Although the drug has been successfully used in states such as Florida, executions in Oklahoma, Arizona, and Ohio have shown just how painful using midazolam can be. In Oklahoma, Clayton Lockett’s death took 43 minutes after midazolam was administered – a long painful death during which he was moving and making sounds. In Arizona, it took Joseph Wood two hours to die after being injected with midazolam – fifteen separate times – all the while gasping and snorting. In Ohio, Dennis McGuire gasped and struggled for ten minutes before finally dying 25 minutes after the drugs were injected.

Oklahoma wants to use midazolam again to execute three inmates. A fourth was executed in January after the Supreme Court denied a stay before finally granting cert to the case in which he was a party. In order to grant a stay, five votes of the Supreme Court are needed. However, in order to grant cert, only four votes are needed. Thus, in a case such as the Glossip v. Gross case, one of the petitioners may be denied a stay and be executed before his case is eventually granted cert. However, the other three inmates are going forward with the case. In light of the botched executions, the Court has decided to take another look at lethal injection after previously upholding it in 2008. Due to the botched executions, the three inmates’ cases are being heard together to decide whether the use of midazolam is a violation of the Eighth Amendment to the U.S. Constitution. All three inmates were convicted of first-degree murder due to admittedly heinous crimes, and were all denied a motion to stay their executions pending an appeal of the District Court, which also denied the motion. The inmates wanted the stay so their case could be decided on the merits.

The Supreme Court has granted cert to look at three issues:

(1) Whether it is constitutional for a state to use a drug that has no pain-relieving properties and cannot reliably produce unconsciousness, and whether there is an unacceptable risk of pain and suffering during lethal injection if the person is conscious;

(2) Whether the standard applies in the previous lethal injection case applies here, when the state is not using protocol similar to that case; and

(3) Whether a prisoner must establish alternative formulas for lethal injection when challenging protocol.

It is important to note the history of Supreme Court death penalty cases, which show that the Court has consistently upheld the requirement that a method not inflict “unnecessary or wanton pain” upon the inmate under the objectively intolerable test.

While the Court has previously ruled lethal injection as permissible, it was with regards to a different drug. Under the reign of this new drug regime supplant the prior, the Court must reevaluate its stance on lethal injection. It must ask important questions about the risk of pain and the humaneness of the treatment. It must look at how the law is treating death row inmates. Its ruling could be the first step toward a criminal justice system without capital punishment.

Hack Attack: President Obama’s Latest Executive Order to Preserve America’s Networks

By: Jeb Harmon

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“Hacker Rene” Courtesy of Ivan David Gomez Arce CC BY 2.0

 

In December of 2014, Sony Pictures Entertainment turned to the Federal Bureau of Investigation (FBI) for protection and answers after North Korea allegedly targeted the company following the release of the movie “The Interview,” a comedy depicting two American journalists tasked with killing North Korea leader Kim Jong-un. The hackers leaked compromising emails between high level Sony executives, which eventually prompted Sony Chair Amy Pascal to resign this February. The hackers threatened the public at large by sending the following message:  “The world will be full of fear. Remember the 11th of September 2001,” which led many theaters to cancel the showing of the film.  The FBI traced the source of the attack to a group called the Guardians of Peace, which the FBI believes is linked to North Korea.  While the North Korean cyber-attack on Sony was a unique attempt to cripple a Hollywood powerhouse, there were more than 1,500 data breaches on private businesses and governments worldwide in 2014, a 50% increase from the previous year. The growth in cyber attacks is extremely troubling, given the amount of sensitive information that individuals store on the Internet. The White House warns that “because of the interconnected nature of the Internet, no one is isolated from these [cyber] threats.”

On Friday February 13, 2015, President Obama responded to a greater need for collective action against cyber-threats by signing  Executive Order 13587—Structural Reforms to Improve the Security of Classified Networks and the Responsible Sharing and Safeguarding of Classified Information. This Executive Order will enable companies to work alongside the federal government in order to identify and to protect themselves as well as the private sector from cyber threats, by creating a framework that encourages voluntary and expansive information-sharing.  The Order calls for a voluntary information-sharing framework in three areas: (i) collaboration in the private sector, (ii) collaboration between private businesses and the federal government, and (iii) privacy and civil liberty protections. The Executive Order prompts the Department of Homeland Security (DHS) to share cyber-threat information with the private sector, and also for private sector companies to voluntarily share such information among themselves.

The President’s Executive Order will promote the sharing of classified, relevant data between federal agencies and private companies. Currently, most private-public sharing is based on a Clinton-era framework, which prioritized information-sharing around various economic sectors—banks, energy and power, telecommunications—that the Clinton Administration believed were crucial to national interest.

In order to create a more flexible approach toward sharing classified cyber security information, the Executive Order calls for the creation and improvement of Information Sharing and Analysis Organizations (ISAOs). These organizations are defined by the Critical Infrastructure Information Act of 2002 Section 212(5), Codified 6 U.S. Code § 131, as “any formal or informal entity or collaboration created or employed by public or private sector organizations,” for purposes of (1) gathering and analyzing critical infrastructure information for understanding security issues, (2) communicating or disclosing critical infrastructure information to prevent or mitigate from the effects of an interference, and (3) voluntarily disseminating such information to government or other entities.  Under the Executive Order, an ISAO can be a not-for-profit community, a membership organization, or a single company, which aims to foster a partnership between the federal government and private businesses based on industry-specific, threat-specific, or even regionally-based information needs.

The U.S. Department of Homeland Security will also work alongside companies to create baseline standards and practices in order to guide the information-sharing between federal agencies and the companies involved. DHS will create a nonprofit to administer these best practice guidelines to ISAOs. A CEO of one such involved company, American Express Chairman and CEO Kenneth Chenault, believes that the Executive Order will improve industry-sharing in general. For example, he explained that American Express tracks over “100,000 attack indicators yearly from various sources, but only 5% come from industry-sharing through [their] ISAC (Information Sharing and Analysis Center) and less than 1% come from the government.”  Currently, the private sector plays a critical role in defending private networks across the United States, and the President believes that this Executive Order will create a framework that allows the federal government and private businesses to work together to thwart cyber-attacks, such as the one the Guardians of Peace launched on Sony.

The Executive Order will streamline signing of agreements with the federal government and will grant DHS new powers with regards to private-public information sharing.  Under the Executive Order, DHS will use the Agency’s National Cybersecurity and Communications Integration Center, which analyzes cyber threats, to serve as the hub from which private businesses can enter into information-sharing agreements with the federal government. In 2014, the DHS center detected some 64,000 vulnerabilities on federal and non-federal systems. (At the time of writing this blog, Congress will continue to fund DHS through the end of the budget year, and as such Congress’s decision quells for now DHS Assistant Secretary for Cybersecurity and Communications Andy Ozment’s fear that a shutdown would weaken the center’s ability to respond to cybersecurity threats).  Lastly, this voluntary creation of common standards includes protections for consumer privacy and civil liberties by requiring that Federal agencies collaborating with ISAOs confirm and receive approval from their senior agency officials for any information-sharing activities.

There has been both support and criticism of the President’s executive action from lawmakers as well as the general public.  From a private sector standpoint, Greg Nojeim, Senior Counsel at the Center for Democracy and Technology, said that the Executive Order’s establishment of ISAOs and accompanying guidelines will allow companies to “know what will be done with the information they share.”  He believes the Executive Order will create trust between the Federal government and the private sector.  Nojem also told Federal Computer Weekly that it was better to have the DHS establish such information-sharing agreements itself, as opposed to the National Security Agency, given the controversy surrounding government surveillance that erupted last year. Some titans of the private sector have already expressed their willingness to share information with the federal government, as Apple, Intel, Bank of America, Kaiser Permanente and Pacific Gas & Electric, among many others, have already committed to signing such information-sharing agreements with the DHS.

However, Mike Brown, a vice president with a security division of EMC Corp., a cloud computing company, believes that  many companies will be hesitant to sign such agreements because the Executive Order does not provide protection from liability. For this reason, Senator Tom Carper (D-Del.) introduced the following legislation, The Cyber Threat Sharing Act of 2015, which would “grant liability protections to companies for sharing cyber threat data.” If passed, the Act could remove some of the concerns companies have regarding liability. Yet there is a weakness with the proposed legislation in that it authorizes any self-certified group of security analysts to act as ISAOs in gathering data, yet the bill provides little oversight over these groups to control for how they would use the data.

In Congress, several lawmakers have also supported the Executive Order as another weapon against cyber attacks. California Representative Adam Schiff, the ranking Democrat on the House Intelligence Committee, praised the President’s efforts to secure America’s public and private networks from cyber attacks and espionage. Meanwhile, Speaker of the House John Boehner, through a spokesman, said that “Unilateral, top-down solutions will not solve America’s cyber problems,” and he urged the President to work with Republicans in Congress to create an information-sharing bill instead of imposing an Executive Order.

Although some members of Congress disagree with the Executive Order, Congress has passed key pieces of cybersecurity legislation in the past, such as three cybersecurity bills which were signed by the President last December, in order to further protect government agencies and private businesses from cyber-attacks attacks: The Federal Information Security Modernization Act of 2014, the National Cybersecurity Protection Act, and the DHS Cybersecurity Workforce Recruitment and Retention Act.  Congress’ past bipartisanship with regards to cybersecurity shows that this is perhaps a field where Congressional gridlock is not as contentious as it is for other major policy areas.

In the wake of the Edward Snowden leak on the National Security Administration (NSA), the Obama Administration’s tapping of journalists’ cell phones, and the NSA bugging of world leaders’ phones, the Obama Administration has many steps to take in earning the public’s trust in order to undergo massive data collection in the name of national security. As the Executive Order calls for voluntary sharing of information between the private and public sector, perhaps many companies will be less willing to share such information until the Administration can assure them that such data sharing is not merely window dressing for government surveillance of U.S. companies.  Yet, after the alleged North Korean attack on Sony Pictures, it remains clear that a fine line must be drawn somewhere between allowing the government to defend against cyber attacks and preventing the government from data collecting from (spying on)  private organizations.

The President’s Executive Order and Congress’s proposed bills may be trying to draw such a line for the first time. However, it is up to the American People and, ultimately, Congress to ensure that civil liberties will be protected when the final line is drawn.

 

Could The Visa Waiver Program Be An All Access Ticket For Terrorists? A Look Into The Program’s Problems & Potential Solutions

Josh Stewart, CC BY 2.0

Josh Stewart, CC BY 2.0

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.

 

Wrong Move: How the President’s Actions have Helped Create a More Dangerous Russia.

ONotkiLBy Victor Paduchak

It has been said that one of the most prolific and memorable images of 2014 is the Before and After take of Ukraine’s Independence Square. On the global scale, 2014 was arguably one of the most dangerous and violent years in recent memory. The world witnessed everything from the spread of Ebola, the rise of ISIL in the Middle East as well as the United States’ response, to Taliban bombings of Pakistani schoolchildren, the ongoing Syrian civil war, the kidnapping of 185 women and children by Boko Haram, and the crisis in Ukraine.

The armed conflict in Ukraine has ravaged the country for almost a year now. Beginning with the Russian invasion and hostile annexation of Crimea in February of last year, the conflict quickly escalated when separatist factions of eastern Ukraine wanted to break off and forge stronger ties with Russia. The war in eastern Ukraine has claimed the lives of more than 5600 people, and displaced 1.5 million more. A shaky ceasefire between the Ukrainian government and separatist forces established in September has been completely shattered in recent months, with recent peace talks between the sides coming to a full halt.

Behind this conflict lies a former superpower: Russia. In recent months, through routine denials of all accusations of its continued support of the war, Russia sent thousands of their own troops into Ukrainian territory, as well as allowing countless numbers of volunteers through their borders to fight a “holy war” on behalf of the “Russian Empire.” Evidence has surfaced showing that Russia had planned an invasion of Ukraine even before the previous government collapsed last February. Despite the agreement of a recent ceasefire agreement, both sides have been slow to fulfill their promises, with fighting continuing and a key strategic town, Debaltseve, recently falling under rebel control. While there has been minor progress in fulfilling the terms of the recent Minsk ceasefire deal, the conflict, continually escalating, has no foreseeable end in sight.

Since the beginning of the conflict, the United States has issued a number of executive orders and legislation to both aid Ukraine financially, promising $1 billion in loans, and sanctioning sections of the Russian economy and specific personnel close to Vladimir Putin. As a result, combined with the recent dip in oil prices, the economy in Russia has grounded to a near halt. Yet, the United States has failed to dissuade Russia from its continued involvement in the proxy war. Despite recent news such as the extension of European Union sanctions against Russia, the fighting continues on in Ukraine, with Russian troops and volunteer supporters continuing to flood over the border.

President Obama continually emphasizes that “it’s not a new Cold War,” and that sanctions are the key to forcing Russia to back down. In his recent State of the Union speech, the President mentioned Russia basically in passing, and only emphasized that we must “stay the course” in our current answers to Russian aggression. By this logic, it would seem that by now, with the Ruble almost completely devalued, Russia would be considering pulling out of Ukraine and ending their proxy war in the face of total economic collapse. And yet, the war rages on.

One major mistake that President Obama made in his calculations is exactly how far Putin, and the Russian people, are willing to go to see this conflict through to the end, the impact his sanctions are having. 76 percent of the Russian people consider state media to be the trustworthy news source, with only 5 percent saying that Western media is trustworthy, Gallup polls have shown. Russian approval of Putin skyrocketed by nearly thirty percent in the last year to an all-time high, while favorable opinions of the West simultaneously fell into single digits. Most Russians believe the war in Ukraine was caused by the CIA and Western intervention, in an attempt to cause a collapse of Russia. The economic sanctions imposed on their country only embolden the Russian people, causing them to coalesce around their leader. It paved the way for Putin to win popular support, and to centralize his power and fashion it into a new dictatorship. Recently, an anti-West, pro-Putin demonstration in Moscow drew 40,000 people, as a testament to the dangerous current of thought in Russia today.

With recent sharp comments claiming that Russia is “undermining the global order,” the United States appears to be reconsidering its previous approach, albeit slowly. With the recent Minsk ceasefire agreement shaken, new sanctions against Russia are being considered. President Obama and Secretary of State John Kerry are looking closely at the possibility of supplying arms to the Ukrainian government for defensive purposes. As Ukraine’s air force is mostly eradicated, and with troop casualties mounting daily, this sort of aid is desperately needed. But is it enough? Or is it too little, too late?

There is no question that the situation in Ukraine is a grave one. This is however only a symptom of a larger issue, that of an aggressive and reinvigorated Russia. The events taking place in Ukraine today mirror that of Russia’s invasion of Georgia in 2008, except on a wider, bolder, and deadlier scale. The United States, through its inaction, effectively granted Russia permission to invade a neighboring country, forcibly annex parts of it, all at the cost of a few months, possibly a year of economic and travel sanctions. It is no wonder Hillary Clinton compared Putin to Hitler last year. The continued sanctions that President Obama presses upon Russia does naught but invigorate the Russians against the West, making them more willing to support warmongering, authoritarian dictators and the wars that they are bound to start. The climate in Russia is a strongly patriotic, nationalistic one, with general ire directed toward the West. The President’s continued underestimation of this fact may lead the world down a very dark path in the coming years.

Perhaps President Obama is right in saying that we are not headed toward a second Cold War. However, the President cannot deny there is a growing gap, a rivalry between the East and the West that seems to draw ominous parallels with the Cold War. Russia may not be as powerful as the Soviet Union once was, but it certainly likes to think so, and that can be just as dangerous, particularly when some countries think they could not withstand an attack from it.