Is Iran Dictating Terms of the New Visa Waiver Restrictions?

A bright note, if it can be called that, in the recent passage of the omnibus spending bill was that at the last moment, the "Visa Waiver Program Improvement Act of 2015" (H.R. 158) was folded into the government funding measure, so it too became law and the visa waiver program (VWP) was significantly tightened up.

The VWP permits nationals of participating countries to travel to the U.S. visa-free. However, one of the provisions in the enacted reforms prohibits otherwise-eligible travelers who are natives of, or who have traveled to, Syria or Iraq or countries designated by the secretaries of State or Homeland Security as supporters or sponsors of terror, such as Sudan and Iran (such travel having occurred anytime from March 1, 2011 onward) from participating in the VWP.

Otherwise-eligible VWP travelers who are natives of the designated countries would be individuals born in Syria, Iraq, etc., but naturalized in a country participating in the VWP. Like those who have simply visited the proscribed countries since 2011, these travelers are now required instead to seek visas through interviews by American consular officers – although exceptions have been carved out for VWP-eligible nationals whose travel involved service in military or civilian government capacities in the designated proscribed countries. Given the uncertain, terrorist-stricken state of the world today – not to mention our government's obviously imperfect vetting procedures – there are sound reasons for these new prohibitions on use of the VWP.

But Iran has formally objected to the restrictions being imposed, suggesting that they violate the recently-concluded and highly controversial nuclear "non-treaty" agreement between Iran and the United States and other nations. This is interesting in light of allegations that Iran itself has already egregiously violated the agreement through missile testing (which they deny, though their word is hardly bond, is it?).

The Iranian assertion that U.S. control over our own visa processes will somehow impede their economy is also curious. It's difficult to comprehend how one would have much influence over the other, leading one to question exactly why Iran would care about this new national security restriction. Those of a cynical disposition might note that Iran has an extremely comprehensive, effective, and aggressive intelligence program which expends substantial time and resources targeting U.S. military equipment, plans, and programs, as well as "dual use" technology whose export is restricted. Nearly a dozen naturalized citizens originally from Iran have been arrested, convicted, and sent to prison in recent years after stealing or attempting to steal defense or technological equipment or secrets for export to Iran. (A partial list can be seen in the table at the end of the document found here.) These convicted spies have been referred to as "Iranians" and "ours", despite their U.S. naturalization, by Iranian officials including new Iranian president and so-called "moderate" Shiite cleric Hassan Rouhani.

In the world of espionage, handing off stolen materiel and other secrets is tricky business, and one of the times when spies are most vulnerable to discovery. Continental Europe, with its freedom of travel for possessors of European Union (EU) passports, is one transshipment center for the military and dual technology equipment, and no doubt also for plans and technical schematics. What better way for the U.S.-based foreign intelligence agent to get rid of the goods than through dead drops and brush-passes with EU-based operatives coming here via the VWP, who then take on the burden of getting them out of the U.S. and into Europe on their departure? In this country, immigration and customs exit controls are nearly nonexistent.

Subjecting Iranian spies who have naturalized in EU countries to a new procedure of visa interviews, background checks, and other intrusive vetting methods is the last thing the Islamic Republic would want, because it risks throwing a monkey wrench into an otherwise excellent espionage system. So what to do? Pitch a fit, say the nuclear agreement is "at risk", and watch what happens.

How has our government reacted? According to The Hill, Secretary of State John Kerry promptly sent a letter to Iranian Foreign Minister in which he "hinted at using special authority to waive restrictions in the new legislation." In its infinite wisdom, Congress did indeed write such waivers into the legislation, although Kerry doesn't seem to understand that the authority belongs to the Secretary of Homeland Security, not State. But that's potayto-potahto, isn't it?

Does anyone doubt that if the president wishes it, the waivers will take place, and most likely on a routine basis, whatever congressional intent may have been? What did they think would happen, given the history of this administration's expansive, rubber-band views of the law and the Constitution? And does anyone doubt that the president will indeed want this outcome, given the lengths to which the administration has been willing to abase itself to achieve the nuclear agreement with Iran? And, it's inevitable that Congress will squawk but do little else if the waivers come thick and fast, as seems quite likely.

Isn't that the way this has gone with virtually everything immigration-related in the past several years? It's like watching a slow-motion mudslide of national and homeland security interests washed into the raging river of expedience and progressive group-think, and watching it all flow away.