The case of Umar Farouk Abdulmutallab, who allegedly tried to take down Northwest Airlines Flight 253 on December 25, 2009, has refocused attention on the assignment of roles and responsibilities to ensure visa security. The 23 year-old Nigerian national allegedly tried unsuccessfully to ignite an explosive device on an incoming flight to Detroit. U.S. consular officers in London, where Abdulmutallab was a student at the University College London, had issued him a multi-year, multiple-visit tourist visa in June 2008.40 The suspect’s father had reportedly contacted U.S. officials to indicate his concern about his son’s welfare and involvement in Islamic fanaticism. State Department officials reported that the father came into the Embassy in Abuja, Nigeria, on November 19, 2009 to express his concerns about his son and that the consular officials at the Embassy in Abuja sent a cable to the National Counterterrorism Center (NCTC).41 They relied on the standard interagency procedures for screening suspected terrorists, referred to as Visa Viper.42
Competing Interests
Some have expressed the view that DOS retains too much power and control over visa issuances. They maintain the Homeland Security Act intended DHS to be the lead department and that DOS was to merely administer the visa process. They warn that consular officers are too concerned about facilitating tourism and trade to scrutinize visa applicants thoroughly.43 Some argue that visa issuance is the real “front line” of homeland security against terrorists and that the principal responsibility should be in DHS, which does not have competing priorities of diplomatic relations and reciprocity with foreign governments. Not long after the attempted bombing of Flight 253, the Chairman of the Senate Committee on Homeland Security and Governmental Affairs, Senator Joseph Lieberman, stated: “I believe, incidentally, that we ought to take a look at taking the visa application and admission responsibility from the State Department. It doesn't really fit with foreign policy anymore.” The Chairman continued, “And in an age of terrorism, I think the Department of Homeland Security ought to be handling visas abroad.”44 Others are recommending further deliberation before changing the law, observing that today’s visa security policies grew out of lessons learned from the September 11, 2001 terrorist attacks.45 The Chairman of the Senate Committee on the Judiciary, Senator Patrick Leahy, stated “After Congress passed major legislation in 2004 to implement the 9/11 Commission’s recommendations, and after the country invested significant resources to upgrade security systems and reorganize our intelligence agencies, the near tragedy on Christmas Day compels us to ask what went wrong and what additional reforms are needed.”46 Proponents of the current division of responsibilities argue that it strikes the proper balance between the two departments and reflects the bifurcation envisioned in the Homeland Security Act. They maintain that it plays off the strengths of the two departments and allows for refinement of the implementation in the future.47 Proponents of DOS playing the lead role in visa issuances assert that only consular officers in the field have the country-specific knowledge to make decisions about whether an alien is admissible and that staffing approximately 250 diplomatic and consular posts around the world would stretch DHS beyond its capacity.48
Acceptance of VSP in Consular Posts
The statutory language of §428(d) of P.L. 107-296 makes clear that authority of the chief of mission remained intact despite the added authorities given to DHS.49 It states that nothing in that provision may be construed to alter or affect the authority of a chief of mission under §207 of the Foreign Service Act of 1980.50 Ultimately, it is the DOS chief of mission at a particular consular post who determines whether to accept a VSP unit.51 A 2008 report of the DHS Office of Inspector General discussed tensions between DOS and DHS in establishing VSP units abroad.
Some DOS headquarters officials have said that ICE special agents do not need to be posted overseas to conduct their visa security activities. The DOS officials said ICE special agents are able to access the law enforcement databases and information systems used in the screening and vetting process remotely. VSP managers said that experienced law enforcement agents assigned overseas provide unique added value at overseas posts. ICE special agents assigned to VSUs [shorthand for VSP units] use their expertise in immigration and nationality law, investigations, document examination, intelligence research, and counterterrorism to complement the consular visa adjudication process with law enforcement vetting and investigation. In addition, ICE special agents assigned to VSUs at post focus on identifying “not yet known” terrorists and criminal suspects.... 52 More recently, top-level DOS leadership has stated they are fully supportive of the VSP and are coordinating with DHS to expand the units to additional consular posts. 53
DOS Visa Processing and Security Funding
The adjudication and issuance of visas are largely fee-based, rather than a government service funded by direct appropriations. For the most part, prospective immigrants and nonimmigrants cover the costs of visa processing. The Consular Affairs immigrant visa application processing fee is $355, and the nonimmigrant processing fee is $131.54 Moreover, the 107th Congress permanently authorized the collection of Machine-Readable Visa (MRV) fees at $65—or the cost of the machine-readable visa service if higher—and a $10 surcharge for machine-readable visas in nonmachine-readable passports. These MRV fees are credited as an offsetting collection used by DOS to recover costs of providing consular services.55
In the FY2011 Budget Request of the President, DOS presents the Consular Affairs visaoperations as part of its Border Security Program. As Table 1 indicates, DOS is requesting an increase in its Border Security Program from $1.8 billion in FY2010 to $2.6 billion in FY2011, and would rely on the use of additional fee receipts to increase the overall funding. “The FY 2011 budget request includes a proposal that would allow the Department to retain all user fees collected from the provision of consular services for FY 2011 and all future years to cover the full cost of immigration, passport, and other consular services.”56 The question of whether DOS is adequately funded to process visas expeditiously while maintaining visa security procedures may arise as the FY2011 budget is debated.
DHS Visa Security Program Funding
The VSP has been growing in terms of funding as well as units located abroad. The FY2009 budget request (the final year of President George W. Bush’s Administration) was $11.8 million for the VSP, with $3.4 million to create two additional overseas VSP units in high-risk locations.57 Congress almost doubled President Bush request of $11.8 million to $22.4 million in FY2009. Funding in FY2010 fell short of President Barrack Obama’s Administration request of $32.2 million, as Congress appropriated $30.7 million for the VSP.58 DHS has reported expanding the number of VSP units in high-risk consular posts by two each year in FY2009 and in FY2010, but acknowledges that Congress has required DHS to use the remaining two-year enhancement funds of $3.4 million it received for expansion by the close of FY2010 pursuant to its five-year expansion plan (discussed above) or the funds will be lost.59 DHS also stated that 63 ICE special agents were trained to become Visa Security Officers in FY2009.60
The Obama Administration is requesting that the VSP be funded at the same level in FY2011 as Congress funded it in FY2010—$30.7 million. The modest size of the VSP with 67 full-time equivalent staff (FTEs) has led some to question how many VSP units DHS will be able to realistically staff. Some Members of Congress are questioning how long it will take DHS to staff the 40 consular posts it deemed “high-risk” locations with the current level of funding. Congressman Gus Bilirakis, the Ranking Member of the House Homeland Security Subcommittee on Management, Investigations, and Oversight, has called for Congress to shift funding from DHS administrative functions to the VSP.61 As discussed above, however, others note that the expansion of the VSP has been stymied as much by questions of how much added value it brings and the inter-department negotiations, as it has been by funding.62 For example, several Republican Senators reported that the application for Yemen has been pending since September 2008, and applications for Tel Aviv, Jerusalem, Frankfurt and Amman have been waiting for approval since September 2009.63
I'm not sure I quite understand the reasoning that "DHS does not have competing priorities of diplomatic relations and reciprocity with foreign governments," -- it is still part of the United States Government, isn't it? For instance if DHS, decides to collect DNA from all visa applicants, you don't think that would become a reciprocity issue with foreign governments?
It seems to me there are two options here -- give Consular Officers access to the DHS database (which DHS does not like) or expand the VSP to more posts where approval of additional personnel is under State's Chief of Mission authority and subject to the National Security Decision Directive-38.
For instance, according to this, US Embassy Cairo received formal NSDD-38 requests for an additional 25 positions and has approved 23 of them—19 positions for the Department OIG regional office, three positions under the USAID development leadership initiative, and one for the global publishing solutions operation. The FY 2011 MSP includes requests for significantly more positions, including 20 from the Department, and 79 for other agencies, the latter total including 32 positions under USAID’s development leadership initiative.
But expanding personnel overseas is perhaps easier said than done. It is not just a question of funding those positions, the embassy also has to allocate offices, and procure additional housing for employees and their families. So ....
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