It’s not every day that Washington succeeds at alienating our closest allies while making the American people more vulnerable to terrorist attack. But its policies regarding visa-free travel have managed to accomplish both.
The Visa Waiver Program allows citizens of member countries to travel to the United States for up to 90 days without a visa. No need to wait in line at a U.S. consulate. You can simply buy a ticket, show up at the airport, and board your flight. Established in 1988, the VWP was designed to facilitate travel between this country and its allies, spurring trade, economic growth, and cross-cultural interactions. Twenty-seven nations participate in the program. Most are in Western Europe — France, Germany, the United Kingdom, and the like — but other countries such as Australia, Japan, and New Zealand are members, too. The VWP has served America well for two decades: More than half of the 30 million visitors who fly to this country each year do so under the Visa Waiver Program.
Yet the VWP is a relic of the pre-9/11 world. It suffers from two fatal flaws.
First, the VWP’s security standards aren’t up to the job. The program wasn’t designed to guard against international terrorism. Its focus has been the threat of illegal economic migration — the risk that citizens of less prosperous nations might move to the United States. Moreover, to the extent the VWP does try to measure security risks, it does so in a ham-handed way. The program screens for threats on a country-by-country basis, not a passenger-by-passenger basis. It assumes that citizens of non-members represent a greater security risk, and that citizens of members pose a lesser risk.
Experience since 9/11 shows how wrong — and dangerous — those assumptions are. The terrorist threat from Europe is real, and it’s worsening. As Homeland Security Secretary Michael Chertoff recently warned, there’s an alarming “possibility of Europe becoming a platform for a threat against the United States.” And how. Convicted al-Qaeda member Zacarias Moussaoui is a citizen of France. Shoe-bomber Richard Reid is a Briton. The men who plotted to bomb planes flying between London’s Heathrow airport and the United States held British passports. All of them were able to exploit the Visa Waiver Program to fly to this country with little, if any, advance scrutiny.
The second major problem is that the VWP slights some of America’s closest allies in the war on terrorism. Countries like the Czech Republic, Estonia, Poland, and South Korea have been steadfast partners in America’s efforts to keep al-Qaeda at bay. Yet the program treats them like second-class citizens. By law, a country can’t join unless it achieves an extremely low visa-refusal rate (a figure that measures the likelihood citizens from a particular country will overstay in the United States). Because some allies’ rates are too high, they’re unlikely to meet that standard any time soon.
To their credit, Congress and the Bush administration have been working to fix both shortcomings. Last fall, President Bush signed legislation that adds seven new security features to the VWP; it also gives the administration a measure of flexibility to admit countries that fall short of the old statutory requirements. Earlier this week, DHS signed an agreement with one candidate country to begin implementing the enhanced standards. And tomorrow, Congress will conduct an oversight hearing about VWP security.
That’s a good start. But as is often the case in Washington, it all comes down to implementation.
The most important new security measures are the ones that provide DHS with more information about passengers flying to the United States. Unlike ordinary travelers, citizens of VWP members don’t need to fill out detailed visa-application forms. They don’t need to sit down for interviews with consular officials. They don’t need to provide fingerprints before traveling. As a result, we don’t know a whole lot about them before they show up at Dulles.
The VWP reforms help close that information gap. DHS is directed to create an automated system that visitors would use to provide basic personal information before traveling — names, nationalities, passport numbers, and so on. In effect, a passenger would make a reservation with an airline, then a reservation with DHS. The new law calls on member nations to share more information about U.S.-bound travelers, such as terrorist watchlists, airline reservation data, and information about suspects wanted for serious crimes. That data can be run against U.S. watchlists or analyzed to find ties between known terrorists and their unknown associates.
The reforms also require countries to do a better job of reporting passports that have been lost or stolen. That way officials at the border will be better able to spot terrorists traveling on forged or altered documents. As the administration begins to implement the new law, it should insist that countries scrupulously adhere to all of the enhanced standards, especially the ones pertaining to information sharing.
Also, the administration should apply the new measures not just to aspiring VWP nations, but to current members as well. That makes sense from a fairness standpoint: Why should a country get a free pass on security just because it happened to join in 1988 instead of 2008? It makes even more sense from a threat standpoint. Western Europe is home to large and increasingly assertive populations of radicals; America has at least as much to fear from Paris as from Prague. Ultimately, it’s in the interest of incumbent members to comply with the enhanced standards. If terrorists ever succeed at using the program to attack the United States, the inevitable calls to abolish it altogether likely will prove irresistible.
Finally, the administration needs to heed Congress’s instructions to establish meaningful exit controls at airports. The U.S. government historically has known virtually nothing about whether visitors to this country leave when they’re supposed to. A system that tracks departures will help officials learn whether VWP travelers are overstaying, thereby preserving the program’s original goal of preventing illegal migration.
It’s often thought that, on questions of national-security and international relations, the United States faces a binomial choice: Either strengthen security at the expense of friendly relations, or pursue friendly relations while sacrificing security. At least in the context of the Visa Waiver Program, that choice is a false one. VWP reform gives Washington the chance to strike a blow against terrorist travel while at the same time strengthening its bonds with allies across the globe.
— Nathan A. Sales is a law professor at George Mason University School of Law. He served in the Bush administration at the departments of Justice and Homeland Security.