PATRICK J.

LEAHY, VERMONT, CHAIRMAN

EDWARD M. KENNEDY, MASSACHUSETTS
JOSEPH R. BIDEN, JR., DELAWARE
HERBERT KOHL, WISCONSIN
DIANNE FE1NSTEIN, CALIFORNIA
RUSSELL D. FEINGOLD, WISCONSIN
CHARLES E. SCHUMER, NEW YORK
RICHARD J. DURBIN, ILLINOIS
MARIA CANTWELL, WASHINGTON
JOHN EDWARDS, NORTH CAROLINA
ORRIN G. HATCH, UTAH
STROM THURMOND, SOUTH CAROLINA
CHARLES E. GRAS.SLEY, IOWA
ARLEN SPECTER, PENNSYLVANIA
JON KYL, ARIZONA
MIKE DEWINE, OHIO
JEFF SESSIONS, ALABAMA
SAM BROWNBACK, KANSAS
MITCH McCONNELL, KENTUCKY COMMITTEE ON THE JUDICIARY
WASHINGTON, DC 20510-6275

To: Secretary of State Colin Powell

From: Judiciary Subcommittee on Technology, Terrorism and Government Information
Chairman Dianne Feinstein and Ranking Member Jon Kyi
October 30, 2002

As we mentioned in the letter to you, we would appreciate receiving answers to the following
questions before November 12.

I. Questions on the Enhanced Border Security and Visa Entry Reform Act ("Border
Security Act):

1) To your knowledge, has the report in Section 201 of the Border Security Act, due in August,
been completed on identifying law information and intelligence community information needed
by the State Department to screen visa applicants and by INS to determine admissibility or
deportability? If not, please tell us why it hasn't been completed.

2) Section 202 of the Border Security Act requires the Secretary of State to develop and
implement "no fewer than 4 languages designated as high priorities by the Secretary of State,
after consultation with the Attorney General and the Director of the Central Intelligence Agency
and develop and implement sensitive algorithms on those languages within 18 months after
enactment." What steps has the State Department taken to do this? What languages are the State
Department going to choose?

3) Section 304 of the Border Security Act requires that a terrorist look-out committee be
maintained within each U.S. mission. Each committee is required to submit monthly reports to
the Secretary of State describing its activities and whether or not information on known or
suspected terrorists was developed during the month. Has the Secretary of State received these
reports? To my knowledge the State Department has not submitted to Congress, as required by
Section 304, any quarterly reports on the status of the committees. Why has no report been
submitted to Congress?

4) The General Accounting Office report referred to in our letter to you details repeatedly the
need for additional training in counter-terrorism and other national security areas for consular
officers. It is our understanding that, currently, the only new training that officers are receiving
post-9/11 is a one-day training seminar on employing interview techniques provided by the FBI
to better screen visa applicants. Section 305 of the Border Security Act requires that consular
officers be specially and extensively trained in the identification of individuals ineligible to
receive visas on security and related grounds (section 212(a)(3) of the Immigration and
Nationality Act). Please update us on what additional training might be offered to consular
officers.

5) Please provide us an update on whether the Justice Department and the Department of State
have determined, as provided for in Section 307 of the Border Security Act, whether any visa
waiver countries are failing to report the theft of passports.

6) Pleaser provide us with an update, as provided for in Section 308 of the Border Security Act,
on the entry of stolen passports into its existing data system.

7) Please report on how the Department of State is complying with the requirement, Section 606
of the Border Security Act, that State retain, for a period of seven years, every application of a
nonimmigrant visa.

8) The Border Security Act directs the Attorney General and Secretary of State to issue machine-
readable, tamper-resistant biometric visas by October 26, 2004. Please provide an update on the
timeline for meeting this deadline. [Question was submitted for the record after the October 9
Judiciary Subcommittee on Terrorism hearing.]

9) Several months ago, the State Department conducted a staff briefing on Border Security Act
requirements, including the biometric requirement for October 26, 2004. The State Department
indicated in that briefing that "all nonimmigrant visas incorporate a photo that can easily be
matched by INS inspectors to the database record that is available at all ports of entry." How, in
the absence of reliable data capture by a U.S. government entity, does the State Dept assert that a
non-digitized photograph used for nonimmigrant visas meets the biometric features requirement
intended by the authors of the Border Security Act? [Question was submitted for the record after
the October 9 Judiciary Subcommittee on Terrorism hearing.]

II. Questions based on information provided for in the October GAO report entitled
"BORDER SECURITY: Visa Process Should be Strengthened as an Antiterrorism Tool"

1) Why did the State Department in its written response to the GAO about its report, after all the
evidence presented that showed that the 9/11 terrorists should not have received visas based
solely on Section 214(b) of the TNA, continue to declare "based on the information available to
the interviewing consular officers, and in fact all information available to the Department at that
point, the applicants qualified for visas"?

2) The State Department instituted a 30-day name check system called Visas Condor in January
2002. It applies to individuals for whom the 20-day name check is required. Can you provide a
general description of which visa applicants are subject to the Visas Condor check? Please
provide us with a complete list of which visa applicants are subject to the 20-day check. To
which governmental organizations (FBI, CIA) does the State Department send cables requesting
information?

3) According to the GAO, as of August 1, 2002, the Foreign Tracking Terrorist Task Force
[FTTTF] had identified a total 567 visa applicants who may pose a threat to national security. Of
the 567 identified, 280 of them were determined to be ineligible by the task force based on the
INA's terrorism provision. However, the State Department received the "refusal
recommendation" on 200 of the 280 after the 30-day Visas Condor program hold requirement
had expired. Since the 30 days had expired, those 200 individuals -were given visas anyway! In
a press briefing, your spokesman said that it was now the responsibility of the INS to find them.
What is your response to this? What do you know about these individuals? Were the rest of the
567 applicants who were determined to be threats, according to the task force, turned down for
visas or given visas? Do you or the INS know where any of the 567 with approved visas are
today?

4) The Visas Condor security check applies only to visas adjudicated after January 2002. The
check does not apply to previously issued visas. How is the State Department working to
identify the still valid visitor visas (some visas are good for 10 years) of individuals who should
be subject to the Visas Condor check?

5) According to the Justice Department, Visas Condor program namecheck provides sufficient
evidence to deny a visa under the INA's terrorism provision. Justice believes that the law
presumes a visa applicant is inadmissible and places the burden of proof on the applicant to
establish his admissibility. Therefore, a consular officer need not have specific evidence that the
applicant participated in terrorist activities or associations to justify a denial. The State
Department, according to the GAO report and the written response from the State Department to
the GAO, does not agree. Please provide us with an update on how Consular Affairs plans to
resolve this important national security issue. One of the recommendations of the GAO is to
"establish governmentwide guidelines on the level of evidence needed to deny a visa on terrorism
grounds under INA section 212(a)(3)(B)." Are you going to work with the Justice Department to
establish such guidelines?

6) According to the GAO report, the State Department's own terrorist system TIPOFF identified
178 applicants in FY 2001 as known or suspected terrorists, but State denied visas to only 81 of
those applicants. Please provide us with comprehensive information about why the rest of the
visas were issued, despite being identified by in the State Department's system, TIPOFF.

7) According to the GAO, the State Department (based on the Border Security Act's state-
sponsor-of terrorism provision) requires personal interviews for all applicants who are over the
age of 16 and are from countries identified as state sponsors of terrorism. For which other
countries is the State Department requiring such interviews? What types of interviews are
required for individuals from Saudi Arabia?

8) What is the State Department's interview policy for individuals who are being processed in a
third country for a U.S. visa? We note that, according to the GAO report, in the London,
England and Ottowa, Canada office there is concern that too many interviews are being waived,
based on the department's "best practices," which allows for the waiving of a visa application
based on a belief that an applicant will not illegally immigrate to the U.S.

9) Training of Consular officers - please see question 4 under Border Security Act.
10) How do you plan to provide for recommended changes, or strengthening, of language
capability among consular officers at various posts around the world? For example, according to
the GAO report, "Cairo reported that 90 percent of interviews are conducted in Arabic, yet most
officers lack strong Arabic skills." When local staff are used to fill the language gap, how are
they screened?

12) According to the GAO report, the "State Department plans to 1) issue new rules that will
eliminate much of the discretion consular officers have in such things as waiving interviews of
visa applicants and using travel agencies to process visa applications, 2) reduce the period of
maximum validity of nonimmigrant visas from 10 years to 5 years, and 3) redraft department
guidance on when consular officers can issue less than-than-full-validity visas." Why haven't
these changes in policy been pursued by Consular Affairs already?

13) Please provide us with current copies of the State Department's Foreign Affairs Manual,
Consular Management Handbook, Consular Best Practices Handbook. We realize that Consular
Affairs officers also rely on other State Department information (ie. telegrams, informal
communications, etc.) when making decisions about visa applicants, but these printed materials
will provide us with the most up-to-date formally distributed materials provided for visa
processing guidance to consular officers.
 PATRICK J. LEAHY, VERMONT, CHAIRMAN
EDWARD M. KENNEDY, MASSACHUSETTS
JOSEPH R. BIDEN, JR., DELAWARE
HERBERT KOHL, WISCONSIN
DIANIME FEINSTEIN, CALIFORNIA
RUSSELL D. FEINGOLD, WISCONSIN
CHARLES E. SCHUMER, NEW YORK
RICHARD J. DURBIN, ILLINOIS
MARIA CANTWELL, WASHINGTON
JOHN EDWARDS, NORTH CAROLINA
ORRIN G. HATCH, UTAH
STROM THURMOND, SOUTH CAROLINA
CHARLES E. GRASSLEY, IOWA
ARLEN SPECTER, PENNSYLVANIA
JON KYL, ARIZONA
MIKE DEWINE, OHIO
JEFF SESSIONS, ALABAMA
SAM BROWN BACK, KANSAS
MITCH McCONNELL, KENTUCKY COMMITTEE ON THE JUDICIARY
WASHINGTON, DC 20510-6275

October 30, 2002

The Honorable Colin L. Powell

Secretary
United States Department of State
Washington, B.C. 20520

Dear Secretary Powell:

We are writing to express our continued concerns about the State Department's internal visa-
processing policies — those in place both before and after terrorist attacks of September 11, 2001. In
the year since the attacks, we have learned that the terrorists carried them out in a highly
sophisticated, meticulously planned, and skillful manner.

Our nation can no longer afford to be complacent about the underlying weaknesses in our
visa system that gave the terrorists confidence that our immigration laws could be circumvented.
Therefore, we ask for your personal attention and commitment to overseeing the Bureau of Consular
Affairs in order to make the policy changes needed to keep terrorists out of the United States.

As chairman and ranking member of the Senate Judiciary Committee's Subcommittee on

Technology, Terrorism, and Government Information, we have held numerous hearings to identify
State Department and Immigration and Naturalization Service weaknesses in visa processing. At
those hearings, we asked officials from the State Department and the INS to recommend
administrative and legislative changes to the immigration system. We also received testimony from
several policy and technology experts on how new technologies may assist our government agencies
in keeping terrorists out of the United States.

Most recently, we held a hearing on October 9 entitled, "Tools Against Terror: How the
Administration is Implementing New Laws in the Fight to Protect Our Homeland." At that hearing,
we highlighted a recent media report revealing that internal State Department visa policies made it
possible for most of the 19 hijackers to obtain visas to the United States. It was also revealed that
strict adherence to our nation's immigration laws should have prevented the approval of their
applications.

As we understand Section 214(b) of the Immigration and Nationality Act (INA), consular
officers are empowered with broad authority to deny visas, particularly in cases where the applicant
fails to meet the burden of proving that he or she is eligible for a visa. This means that applicants for
a nonimmigrant visa must demonstrate that they: (1) have a residence abroad and strong ties to a
country that they have no intention of abandoning; (2) intend to leave the United States in a timely
manner; and (3) intend to engage in legitimate activities related to the nonimmigrant category.

The fact that several of the terrorist hijackers, including the ringleader, Mohammed Atta,
failed to fully fill out their applications provided ample reason for denying the visas. According to
The Honorable Colin L. Powell
October 30, 2002
Page 2

information received by subcommittee staff, only one of the 15 terrorists provided an actual address;
the rest listed only general locations, such as "California," "New York," Hotel D.C." and "Hotel."
Only three of the 15 terrorists provided the name and street address of present employer or school, as
required on the application. Only one of these applications had additional documentation or
explanatory notes provided by a consular officer that addressed any discrepancy or problem with the
original application.

We both serve on the Senate Select Committee on Intelligence and, as such, have been
involved in the investigation into whether the attack on September 11th could have been prevented.
The fact that visas were issued to at least 15 terrorists whose applications should have been denied is
a significant revelation. Yet, nothing from the recent remarks by State Department spokesmen
suggest much concern about the matter.

Moreover, it is troubling that, despite our requests over the past year for clarification about
whether the terrorists' visas should have been granted, we were instead informed by the media and
through a recently released General Accounting Office (GAO) report entitled "Border Security: Visa
Process Should be Strengthened as an Antiterrorism Tool" about the visa issuance procedures
followed at the consulates from which the terrorists obtained their visas.

For more than a year, it has been the official position of the Bureau of Consular Affairs that
13 of the 15 terrorists from Saudi Arabia were personally interviewed, and that there was nothing in
their visa applications or in the interviews that would have prevented their acquiring a visa.
According to the GAO, however, only two of the Saudi applicants were actually interviewed, and all
19 hijackers had substantial omissions and inconsistencies on their visa applications that should have
raised concerns about why they wanted visas.

The GAO reported that these applicants were presumed to be eligible based upon on pre-9/11
internal State Department policies that stressed that any applicant from Saudi Arabia or the United
Arab Emirates was to be considered a "good case" and, therefore, exempt from interviews.
Moreover, the GAO noted that applicants from these two countries were not required to "complete
their applications or provide supporting documentation."

It further concerns us that in an October 2001 hearing before our Terrorism Subcommittee,
Mary Ryan, the former Assistant Secretary of State for Consular Affairs, said that these visa
approvals were "a failure of intelligence rather than a failure of the visa system." To the contrary, it
seems clear that extremely weak internal State Department visa policies resulted in visas being
granted to the perpetrators of the September 11 attacks.

We would have hoped, at a minimum, that these attacks, and the passage of both the USA
Patriot Act and the Enhanced Border Security and Visa Entry Reform Act ("Border Security Act"),
would have led to a wholly new approach to visa processing on the part of the Bureau of Consular
Affairs. We are encouraged by improvements in information gathering and in certain other respects,
and by the State Department's acceptance of the GAO's conclusions and recommendations.
The Honorable Colin L. Powell
October 30, 2002
Page 3

However, the following brings to light a small sampling of the problems that plagued—and,
in many cases continue, to plague—the visa processing system after the attacks on the World Trade
Center and Pentagon. After September 11, the State Department's Visa Express program, which
allowed travel agents to perform many processing tasks for certain visa applicants, continued for
most Saudi Arabian applicants until congressional objections led to its suspension. -

In addition, the GAO's recent assessment of current State Department visa policies raises
serious national security concerns. One area highlighted by the GAO requiring your immediate
attention involves a dispute between the Departments of State and Justice over State's legal authority
to deny a visa.

In a June 10, 2002 letter from Deputy Secretary of State Richard Armitage to Deputy
Attorney General Larry Thompson, Secretary Armitage stated that some of the warnings on an
applicant that the State Department receives from the Justice Department's Foreign Terrorist
Tracking Task Force (FTTTF) are insufficient cause to deny a visa.

Justice Department officials have said they believe the law presumes a visa applicant is
inadmissible and places the burden of proof on the applicant to establish his admissibility, based
either on the intending immigrant provision of the INA Section 214(b), or the terrorist-exclusion
provision of the INA Section 212(a)3(b). The Justice Department does not believe that a consular
officer needs specific evidence that the applicant participated in terrorist activities or associations to
justify a denial.

In contrast, according to the GAO report and State's written response to it, the State
Department asserts that specific evidence is mandatory. To resolve this dispute, the GAO
recommended that the State Department "establish government-wide guidelines on the level of
evidence needed to deny a visa on terrorism grounds under INA section 212(a)(3)(B)."

Therefore, we ask that you provide information on the steps that both State and Justice have
taken to resolve these differences and to establish clearer guidelines for Consular Affairs officers. In
particular, given that we drafted the portion of the law that provides the means of gathering the
intelligence that Assistant Secretary Ryan claimed was lacking, we must respectfully disagree with
the opinion that more specific evidence is needed to deny an application.

The GAO also made general recommendations for key administrative policy changes within
the State Department. Although the State Department has stated its general support for the GAO
recommendations, we are concerned that the GAO, rather than the State Department, is currently the
predominant agency identifying and suggesting important visa-processing policy changes. We
would appreciate your assurance that the Bureau of Consular Affairs is aggressively initiating and
implementing the necessary policy changes to better link the visa processing system to our
counterterrorism and national security goals.
The Honorable Colin L. Powell
October 30, 2002
Page 4

As authors of the Border Security Act, we note that the State Department now has many new
tools, in that law and others, to strengthen the national security component of its visa-processing
system. These include the requirement that the Secretary of State "implement enhanced security
measures for review of visa applicants and to staff the programs associated with these measures, and
to provide special, extensive training for consular officers,"

Importantly, the Secretary has also been authorized under the Act "to increase the fee
charged for machine-readable visas in order to recover the costs of providing consular services." We
note, however, that most of the consular officers interviewed for the GAO report said "more
guidance and training would help them to use the visa process as an antiterrorism tool to detect
questionable applicants." In addition, the GAO report found a wide divergence of opinions and
practices among overseas posts regarding "(1) the authority of consular officers to deny questionable
applicants a visa, (2) the role of the visa process in ensuring national security, and (3) the types of
changes needed to deny a visa on terrorism grounds."

We believe it is appropriate for you to direct the Bureau of Consular Affairs to fully
implement in a timely manner the reforms provided for in the border security law. To that end, we
also request that you provide the Subcommittee on Terrorism, Technology, and Government
Information with a timely response to the attached questions regarding the State Department's
current visa policies. We also ask that you provide detailed description of the Department's
enhanced security measures now guiding the visa review process.

We intend to hold a hearing on the matters discussed in this letter in the Subcommittee on
Terrorism, Technology and Government Information at the beginning of the 108th Congress.
Therefore, we would appreciate a response by no later than November 12, 2002.

Mr. Secretary, knowing of your commitment to eliminating the threat of terrorism against the
United States and its citizens, we very much look forward to working with you in this important
endeavor. We thank you for your personal attention to this important matter.

Sincerely yours,

—-
)ianne Feinstein • Jon Kyi
Chairman, Ranking Member
Subcommittee on Technology, Subcommittee on Technology,
Terrorism and Government Information Terrorism and Government Information