PATRICK J.

LEAHY, VERMONT, CHAIRMAN

EDWARD M. KENNEDY, MASSACHUSETTS
JOSEPH R. BIDEN, JR., DELAWARE
HERBERT KOHL, WISCONSIN
DIANNE FEINSTEIN, CALIFORNIA
RUSSELL D. FEINGOLD, WISCONSIN
CHARLES c. SCHUMER, NEW YORK
^^>\RD J. DURBIN, ILLINOIS
v CANTWELL, WASHINGTON
, 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 BROWNBACK, 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
Page3

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