The Obama administration's one successful collaboration with Congress on keeping terrorists out of the United States is unraveling, as Republicans allege that the administration is giving Iran special treatment and as the State Department pushes to loosen restrictions for dual- nationality Iranians to visit the United States.
As soon as President Barack Obama signed the law last December, removing visa waiver privileges for foreign citizens who have visited Iran and other Middle Eastern nations, the Iranians objected and Secretary of State John Kerry assured Tehran that the administration would use its executive authority to ensure the law would not impede "the legitimate business interests of Iran."
Congress objected to that at the time, but didn't know then that the State Department was also pressing to exempt all dual- nationality Iranians who are outside of Iran, in the hope of encouraging political change inside that country.
In January, the State Department prepared a policy memo, which I obtained, that argues for exemptions to the law far beyond what Kerry promised the Iranian government and that have nothing to do with the nuclear agreement between Iran and the West.
For example, State argued internally that all dual- nationality Iranians who were born outside of Iran or emigrated from Iran after the 1979 Islamic revolution should be exempted from the law.
"The United States has a national security interest in Iran moderating politically over time," the memo states. "Penalizing those who were born outside Iran runs counter to this objective because it alienates a group that largely support the U.S. goal of encouraging Iran to moderate politically."
The memo says that the secretary of homeland security can use national security waivers at his sole discretion and urges him to use them liberally.
"There are no findings of facts or other determinations required to be made before exercise of the waiver authority," the memo states. "The national security waiver can be exercised by category, not just individuals."
The memo then lays out detailed rationales and legal arguments for exempting eight categories of people from the new visa rules. When the Homeland Security Department announced its implementation plan on Jan. 21, five of these categories were included for exemptions: anyone who had visited Iran, Iraq, Sudan, or Syria on behalf of an international organization, non- governmental organization, or as a journalist, and those who visited Iran or Iraq for "legitimate business purposes."
The law as written provides exemptions only for official government travel and military service. According to e-mails provided to me between administration officials and Congressional staffers, the White House signed off on those being the only two exemptions after extensive negotiations.
The State Department memo shows that after the compromise, the State Department tried again to expand the scope and the scale of the exemptions for Iranians all over the world. The State Department was not definitive on exactly how the Homeland Security Department was supposed to determine which dual- national Iranians met the exemption criteria. For example, the memo says Homeland Security could ask dual-national Iranians to disclose when they left Iran during their online application.
Those in Congress who negotiated the law consider the State and Homeland Security Departments' implementation to be a violation of it.
Michael McCaul, chairman of the House Homeland Security Committee, told me that the administration is abusing the national security waivers that Congress provided.
"The president has decided he is going to break this law -- and he plans to do so, in part, to accommodate the world's leading state sponsor of terror, Iran," McCaul told me in a statement. "I believe this decision could have serious consequences for our security and -- perhaps more importantly -- far-reaching consequences for our democracy."
In late January, McCaul joined with House Majority Leader Kevin McCarthy and House Foreign Affairs Committee Chairman Ed Royce in a letter to the president demanding all memos, e-mails and other correspondence related to the decision to expand the exemptions for the new visa restrictions for Iran and Iraq. The lawmakers gave the administration a Feb. 12 deadline.
Wednesday on Capitol Hill, McCaul will lead a hearing with testimony from two top Homeland Security officials who are charged with implementing the program.
There are some in Congress who support expanding the visa exemptions for all dual-national Iranians. Senators Richard Durbin, Jeff Flake and Cory Booker have introduced legislation that seeks to remove dual nationals from the list of those who would now need visas.
"The Visa Waiver Program should be reformed, but singling people out because of their national origin is fundamentally at odds with American values and invites discrimination against American citizens who are dual nationals," Durbin said last month.
The ambassadors of all 28 European Union states have also publicly called for a revision of the law, which they say could impact hundreds of thousands of Europeans who left Iran but under Iranian law still hold Iranian citizenship.
A State Department official told me that State and Homeland Security are still working to ensure that the new amendments to the Visa Waiver Program are appropriately implemented. The Homeland Security Department declined to comment.
Administration sources told me that they are operating within the law. They also say that all travelers entering the U.S. through the Visa Waiver Program undergo extensive vetting and that no final decisions about exemptions for dual-national Iranians have been made.
The executive and legislative branches must work together to devise common-sense measures to combat the rising threat of terrorists trying to enter the United States. Weakening those measures to keep Obama's nuclear deal intact was bad enough. Weakening them further for amorphous political goals, as the State Department suggested, would undermine the spirit of the law and poison any future negotiations.
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