Christmas Day Bombing Highlights Turf War Over Visa Authority

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Christmas Day Bombing Highlights Turf War Over Visa Authority

One of the most disturbing revelations in the wake of the foiled Christmas Day attack, in which Umar Farouk Abdulmutallab allegedly attempted to set off explosives on a plane bound for Detroit, was that the suspect had a valid United States visa. (Fox News, December 30, 2009). In a recent hearing on the attack held by the Senate Homeland Security and Governmental Affairs Committee, Ranking Member Susan Collins (R-ME) stated that “the most obvious error” in handling this case was that the State Department did not revoke his visa. (Homeland Security Hearing Testimony, January 20, 2010). This particular issue has fueled a debate that has raged since September 11th over who has ultimate authority to revoke visas. (Washington Times, January 12, 2010).

The issue of visa revocation stems from compromises made during the creation of the Department of Homeland Security (DHS) itself in 2002. The initial plan to grant Homeland Security the exclusive authority over visas was what many lawmakers supported. However, the State Department resisted and Congress finally compromised by maintaining the Department of State’s (DOS) authority to issue but giving the Department of Homeland Security a new role in visa policy and procedures. DHS also obtained dual revocation authority that is exercised through the Department of State. (See 6 U.S.C. 236(b) and the Memorandum of Understanding, paragraph 5, issued pursuant to it in 2003). In addition, Congress also directed Homeland Security to station personnel in Saudi Arabia to review all visa applications prior to decision and authorized DHS to create Visa Security Units that could go into other U.S. consular posts, review visa applications, conduct investigations, and advise State Department officials.

With Department of Homeland Security and the State Department having dual revocation authority, a process had to be established to clarify how each agency would use its authority and which one had the ultimate say. DHS and the State Department executed a memorandum of understanding in 2003 which allowed DHS to request State to revoke a visa in certain cases. However, the State Department and DHS have not always agreed when refusal or revocation of a visa is appropriate and whether the information provided was enough to sustain a decision under current law. In such cases, a State Department consular officer or DHS officer in the foreign country would send a request back to State Department Headquarters for resolution with input from Homeland Security. The lack of a clear process may have contributed to the national security failures that allowed Abdulmutallab to board a flight bound for the U.S. Some critics blame State for failing to revoke his visa, but others argue that the intelligence community should have used the information it had to recommend revocation to State. (Washington Times, January 11, 2010). John R. Bolton, former undersecretary of state for international security and later ambassador to the United Nations, has said the “allocation of responsibilities on visas between [the Departments of] State, Homeland Security and [the National Counterterrorism Center] has not worked out, although different people blame different agencies.” (Id.).

From the recent Senate Homeland Security Committee hearing, it is apparent the different agencies do not entirely understand or agree who holds the ultimate authority to revoke visas. In fact, during last week’s hearing, the Director of the National Counterterrorism Center, Michael Leiter, the Director of National Intelligence, Dennis Blair, and DHS Secretary Napolitano conceded that they are investigating the proper roles each agency should play. (Homeland Security Hearing Testimony, January 20, 2010). Some Senators, including Homeland Security Committee Chairman Joe Lieberman (I-CT), appear to favor stripping the State Department of all of its authority over the visa process and granting it to Homeland Security. He 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. And in an age of terrorism, I think the Department of Homeland Security ought to be handling visas abroad.” (Reuters, January 3, 2010).

Lieberman has stated he intends to hold further hearings on visa functions within the Departments of State and Homeland Security. (Homeland Security Hearing Testimony, January 20, 2010). President Obama has also ordered a review of “visa issuance and revocation criteria.” (Washington Times, January 11, 2010).