```

[House Report 113-673]
[From the U.S. Government Publishing Office]

113th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     113-673

======================================================================

 
                      PROTECTING THE HOMELAND ACT

                                _______
                                

 December 12, 2014.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

   Mr. Goodlatte, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 5401]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 5401) to impose limitations on the immigration 
status and immigration benefits for Libyan and third country 
nationals acting on behalf of Libyan entities, having 
considered the same, reports favorably thereon without 
amendment and recommends that the bill do pass.

                                CONTENTS

                                                                   Page

Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     2
Hearings.........................................................    15
Committee Consideration..........................................    15
Committee Votes..................................................    15
Committee Oversight Findings.....................................    18
New Budget Authority and Tax Expenditures........................    18
Congressional Budget Office Cost Estimate........................    18
Duplication of Federal Programs..................................    18
Disclosure of Directed Rule Makings..............................    19
Performance Goals and Objectives.................................    19
Advisory on Earmarks.............................................    19
Section-by-Section Analysis......................................    19
Minority Views...................................................    19

                          Purpose and Summary

    The Protecting the Homeland Act prohibits the lifting of a 
longstanding prohibition on Libyans coming to the U.S. to 
attend flight school, to work in aviation maintenance or flight 
operations, or to study or seek training in nuclear science. 
This bill simply codifies the existing regulation at 8 C.F.R 
Sec. 214.5 that bars Libyan nationals from coming to the U.S. 
to study or work in the aforementioned fields.

                Background and Need for the Legislation

                              I. OVERVIEW

    On November 25, 2013, Judiciary Committee Chairman 
Goodlatte and Representative Chaffetz wrote a letter to the 
Department of Homeland Security (DHS) regarding an internal 
draft final regulation (Billing Code 9111-28) to lift the 
longstanding prohibition on Libyans entering the United States 
to work in aviation maintenance, flight operations, or to study 
or train in nuclear-related fields. Under the terms of this 
draft final regulation, removal of the prohibition will go into 
effect without prior notice and comment. The prohibition\1\ was 
put into place in 1983 after a series of terrorist incidents 
involving Libyan nationals. The Administration's draft 
regulation rescinding this prohibition justifies lifting this 
ban by claiming the United States' relationship with Libya has 
been ``normalized.''\2\
---------------------------------------------------------------------------
    \1\See Libyan and Third Country Nationals Acting on Behalf of 
Libyan Entities, 8 CFR Sec. 214.5.
    \2\Proposed Draft Rule, Rescinding Suspension of Enrollment for F 
and M Non-Immigrant Students from Libya and Third Country Nationals 
Acting on Behalf of Libyan Entities, Billing Code, 9111-28, DHS Docket. 
No. ICEB-2013-0003, RIN 1653, AA69.
---------------------------------------------------------------------------
    Clearly, the U.S. relationship with Libya is anything but 
normal, as evidenced by the September 11, 2012 assault on the 
U.S. compound in Benghazi, Libya that resulted in the murder of 
our ambassador to that country. Not only did four Americans die 
on that date, but numerous other terror threats have continued 
from Libya in recent months.
    According to the draft final regulation, the rule would 
allow Libyans to come to the United States to study or obtain 
training in aviation maintenance, flight operations, or 
nuclear-related fields. The draft rule also indicates, ``DHS is 
of the opinion that the removal of 8 CFR 214.5 is exempt from 
Sec. 553 (Rulemaking) of the APA [Administrative Procedure Act] 
because it involves a foreign affairs function of the United 
States to the extent that it will impact relations with a 
foreign government.'' Hence, it appears that the rule is 
planned to be published as a final rule without any prior 
public notice and comment. The regulation at 8 CFR 214.5 reads:

        Sec. 214.5 Libyan and third country nationals acting on 
        behalf of Libyan entities.

        (a) Notwithstanding any other provision of this title, 
        the nonimmigrant status of any Libyan national, or of 
        any other foreign national acting on behalf of a Libyan 
        entity, who is engaging in aviation maintenance, flight 
        operations, or nuclear-related studies or training is 
        terminated.

    (b) Notwithstanding any other provision of this chapter, 
the following benefits will not be available to any Libyan 
national or any other foreign national acting on behalf of a 
Libyan entity where the purpose is to engage in, or seek to 
obtain aviation maintenance, flight operations or nuclear-
related studies or training:

            (1) Application for school transfer.

            (2) Application for extension of stay.

            (3) Employment authorization or practical training.

            (4) Request for reinstatement of student status.

            (5) Application for change of nonimmigrant status.

    The November 25, 2013 letter addressed the proposed 
rescission of this regulation and posed numerous questions to 
DHS regarding the regulation.
    As DHS never responded to the letter, a follow up letter 
was sent on March 19, 2014 to DHS signed by Judiciary Committee 
Chairman Goodlatte, Oversight and Government Reform Committee 
Chairman Issa, Judiciary Subcommittee on Immigration and Border 
Security Chairman Gowdy, and Oversight and Government Reform 
Committee Subcommittee on National Security Chairman Chaffetz. 
The March 19th letter indicated that since the time of the 
initial November 25th letter, DHS had already moved forward 
with the draft regulation and had sent it to the Office of 
Management and Budget (OMB) for review. DHS moved forward with 
the rule after Members of Congress requested and did not 
receive information from DHS. A cursory review of the publicly 
available information on OMB's website demonstrates that DHS 
sent the regulation to OMB on January 1, 2014.\3\ While it had 
time to send the regulation out of DHS and to OMB for review, 
DHS seemingly did not have time to respond to legitimate 
congressional oversight.
---------------------------------------------------------------------------
    \3\See Rescinding Suspension of Enrollment for Certain F and M 
Nonimmigrant Students from Libya and Third Country Nationals Acting on 
Behalf of Libyan Entities, available at http://www.reginfo.gov/public/
do/eAgendaViewRule?pubId=201310&RIN=1653-AA69, last visited March 28, 
2014.
---------------------------------------------------------------------------
    On March 21, 2014, 2 days after the House Judiciary 
Committee and House Committee on Oversight and Government 
Reform sent the follow up letter to DHS, DHS sent an incomplete 
response answering some of the questions asked. The draft 
response confirmed information that was already publicly 
available and of which the Committees were already aware. 
Specifically, ``the draft regulation has been under review, 
pursuant to Executive Order 12866 Regulatory Planning and 
Review, at the Office of Management and Budget's Office of 
Information and Regulatory Affairs since January 1, 2014. In 
the fall 2013 edition of the Unified Agenda of Federal 
Regulatory and Deregulatory Actions, DHS included an entry for 
this regulation.'' DHS did not answer the substantive questions 
posed in the letter nor provide any update whatsoever on the 
regulation and when it may become final.

         II. LIBYA AND CONCERNS REGARDING THE DRAFT REGULATION

A. Longstanding Ban on Libyans
    The prohibition at 8 CFR Sec. 214.5, entitled, ``Libyan and 
Third Country Nationals Acting On Behalf Of Libyan Entities,'' 
was put into place in the early 1980's after a series of 
terrorist incidents involving Libyan nationals. Specifically, 
in 1969, Muammar al-Qadhafi led an army coup and overthrew the 
King of Libya.\4\ In 1970, he removed U.S. and British military 
bases and expelled Italian and Jewish Libyans. In 1973, he took 
control of foreign-owned oil fields. He reinstated traditional 
Islamic laws, such as prohibition of alcoholic beverages and 
gambling.\5\ On December 2, 1979, a mob attacked and burned the 
U.S. Embassy in Tripoli, and on December 29, 1979, the United 
States designated Libya as a state sponsor of terrorism.\6\ On 
May 2, 1980, after the Government of Libya announced a campaign 
to assassinate dissidents abroad, the United States suspended 
diplomatic relations with Libya, expelled four Libyan diplomats 
from Washington, recalled its last two diplomats from Tripoli, 
and closed the Embassy there.\7\ Qadhafi's government financed 
a wide variety of terrorist groups across the globe ranging, 
from Palestinian guerrillas, Philippine Muslim rebels to even 
the Irish Republican Army.\8\
---------------------------------------------------------------------------
    \4\See Qaddafi leads coup in Libya, available at http://
www.history.com/this-day-in-history/qaddafi-leads-coup-in-libya, last 
visited March 28, 2014.
    \5\See id.
    \6\See Arms Control Association, Chronology of Libya's Disarmament 
and Relations with the United States, available at http://
www.armscontrol.org/factsheets/LibyaChronology (Feb. 2014).
    \7\See A Guide to the United States' History of Recognition, 
Diplomatic, and Consular Relations, by Country, since 1776: Libya, 
available at http://www.state.gov/outofdate/bgn/libya/120759.htm, last 
visited March 28th, 2014.
    \8\See id.
---------------------------------------------------------------------------
    In order to protect Americans, on March 11, 1983, the 
Immigration and Naturalization Service (INS) published a final 
rule prohibiting Libyan nationals, or other foreign nationals 
acting on behalf of a Libyan entity, from obtaining certain 
immigration benefits for the purpose of engaging in or seeking 
to obtain aviation maintenance, flight operations, or nuclear-
related studies or training.\9\ The explanatory material to the 
rule states that:
---------------------------------------------------------------------------
    \9\See 48 Fed. Reg. 10, 296, 8 C.F.R. Sec. 214.5.

        These prohibitions are based upon a determination by 
        the Secretary of State that aviation and nuclear-
        related training by foreign nationals in the United 
        States, whose skills could be used by the Government of 
        Libya, are detrimental to the security of the United 
        States.\10\
---------------------------------------------------------------------------
    \10\Id.

    At the time that the prohibition was put in place and 
thereafter:
        Qadhafi's confrontational foreign policies and use of 
        terrorism, as well as Libya's growing friendship with 
        the U.S.S.R., led to increased tensions with the West 
        in the 1980's. Following a terrorist bombing at a 
        discotheque in West Berlin frequented by American 
        military personnel, in 1986 the U.S. retaliated 
        militarily against targets in Libya, and imposed broad 
        unilateral economic sanctions. After Libya was 
        implicated in the 1988 bombing of Pan Am flight 103 
        over Lockerbie, Scotland, UN sanctions were imposed in 
        1992. UN Security Council resolutions (UNSCRs) passed 
        in 1992 and 1993 obliged Libya to fulfill requirements 
        related to the Pan Am 103 bombing before sanctions 
        could be lifted. Qadhafi initially refused to comply 
        with these requirements, leading to Libya's political 
        and economic isolation for most of the 1990's.\11\
---------------------------------------------------------------------------
    \11\Supra note 7.
---------------------------------------------------------------------------
B. The Draft Regulation
    The draft final regulation contemplated by the 
Administration would allow Libyans to come to the United States 
to study or obtain training in aviation maintenance, flight 
operations, or nuclear-related fields. Specifically, the draft 
rule states:

        [DHS] is amending its regulations by rescinding the 
        regulatory provisions promulgated in 1983 that 
        terminated the nonimmigrant status and barred the 
        granting of certain immigration benefits to Libyan 
        nationals acting on behalf of Libyan entities who are 
        engaging in or seeking to obtain studies or training in 
        aviation maintenance, flight operations, or nuclear-
        related fields. The United States and the Government of 
        Libya have normalized their relationship and most of 
        the restrictions and sanctions imposed by the United 
        States and United Nations towards Libya have been 
        lifted. Therefore, DHS, after consultation with the 
        Department of State and the Department of Defense, is 
        rescinding the restrictions that deny nonimmigrant 
        status and benefits to a specific group of Libyan 
        Nationals.\12\
---------------------------------------------------------------------------
    \12\Supra note 2 (emphasis added).

Should the regulation be rescinded, any Libyan could seek to 
enter the U.S. in order to work in aviation maintenance, flight 
operations, or study or train in nuclear related fields.
    On February 1, 2010, DHS received a letter from then-
Assistant Secretary of State for the Bureau for Near Eastern 
Affairs, Jeffrey Feltman, requesting the rescission or revision 
of 8 C.F.R. Sec. 214.5.\13\ Shortly thereafter, widespread 
unrest in Libya precluded the U.S. government from engagement 
with Libya. The post-Arab Spring civil war in Libya led to the 
fall of the Qadhafi regime in August 2011, and Qadhafi was 
captured and then killed by rebel forces in October 2011. 
Following the revolution, the Obama Administration once again 
began the process of ``normalizing'' relations with that 
country.
---------------------------------------------------------------------------
    \13\See February 1, 2010 letter from then-Assistant Secretary of 
State for the Bureau for Near Eastern Affairs, Jeffrey Feltman to then 
Assistant Secretary Heyman of DHS Policy.
---------------------------------------------------------------------------
    On May 31, 2012, DHS received a second letter from then-
Assistant Secretary Jeffrey Feltman, with a joint signature 
from Joseph McMillan, Acting Assistant Secretary of Defense for 
International Security Affairs, stating the ``outdated 
regulation does not reflect current U.S. government policy 
towards Libya.''\14\
---------------------------------------------------------------------------
    \14\See Letter to DHS Assistant Secretary Heyman from Jeffrey 
Feltman of the Department of State and Joseph McMillan of the 
Departmant of Defense (May 31, 2012).
---------------------------------------------------------------------------
    Immediately after this request was made, on September 11, 
2012, US Ambassador John Christopher Stevens and three other 
State Department officials were killed when terrorists stormed 
the U.S. Consulate in Benghazi, Libya. ``Armed men attacked the 
consulate building in Benghazi late on September 11, setting it 
ablaze and burning it down. Witnesses said the diplomatic 
building was ransacked and looted before being set on fire. 
They say it had also been badly damaged by homemade bombs and 
rocket-propelled grenades.''\15\ Furthermore, a statement by 
U.S. State Department spokeswoman Victoria Nuland said the 
United States condemned the attack ``in the strongest terms'' 
and was working with Libyan security forces to secure the 
compound. Obama called the attack in Benghazi ``outrageous and 
shocking,'' and vowed its perpetrators will face justice. 
``I've also directed my administration to increase our security 
at diplomatic posts around the world.''\16\ President Obama 
said, ``And make no mistake--we will work with the Libyan 
government to bring to justice the killers who attacked our 
people.''\17\
---------------------------------------------------------------------------
    \15\Radio Free Europe Radio Liberty, U.S. Ambassador, Staff Killed 
In Attack On Benghazi Consulate, available at http://www.rferl.org/
content/american-staffer-killed-in-attack-against-benghazi-consulate/
24705590.html, last visited October 29, 2014 (September12, 2012).
    \16\Id.
    \17\Id.
---------------------------------------------------------------------------
    Despite the attacks, the Obama Administration continues to 
argue that the long-standing prohibition that was put in place 
by then-President Reagan's Administration in order to protect 
the homeland against serious threats from terrorists from a 
particularly unstable and dangerous country is no longer needed 
today. However, many of the characteristics that caused the 
regulation to go into place regarding Libya persist today--
regardless of any progress that may have been made following 
the removal of Muammar Qadhafi from power and attempts to 
improve relations with the fragile Libyan government in 
Tripoli. Unfortunately, the terror threat continues and 
numerous news reports document recent terror-related activity 
involving Libyans.
    Further, the draft regulation goes on at length to discuss 
the manner in which relations with Libya have improved and are 
now ``normalized,'' but fails to make any mention whatsoever of 
the terrorist attack in Libya on September 11, 2012. Ignoring 
this event in a draft regulation that deals squarely with the 
threat of terror from Libyan nationals is unacceptable and will 
not obscure the fact that it occurred, nor will it do anything 
to address the safety of Americans. The U.S. consulate attack 
on September 11, 2012 that resulted in the death of Ambassador 
Christopher Stevens and three other Americans, as a minimum, 
highlighted the considerable instability in Libya.
    Finally, DHS is moving forward on the regulation without 
apprising Congress. The Committee learned via web publication 
that the final regulation was approved by OMB and is now back 
at DHS awaiting Secretary Johnson's signature. OMB completed 
its review on July 18, 2014.\18\ At any point in time now, DHS 
Secretary Johnson can sign the rule so that it can be published 
in the Federal Register and henceforth ``flight students'' and 
nuclear science students from Libya will be free to come to the 
United States. All of this despite the fact that Libya has 
descended into utter chaos since the Committee's hearing on 
April 3, 2014.
---------------------------------------------------------------------------
    \18\See OMB Website, available at http://www.reginfo.gov/public/do/
eoReviewSearch.
---------------------------------------------------------------------------
C. Continued Terror Threat from Libya
    The National Transitional Council (NTC) has struggled to 
govern Libya effectively since the fall of Qadhafi:

        The majority of territory outside Tripoli has fallen 
        under the control of armed militias that have refused 
        to disarm. Violent campaigns along tribal and 
        ideological lines have been waged by Libyans determined 
        to settle old scores and influence the ongoing 
        political transition. Libya's armed Islamists are well 
        positioned to shape the course of events. This year the 
        NTC will be challenged to integrate the Islamists into 
        the national political system, yet failure to do so 
        will likely result in marginalized militants playing 
        the spoiler. If current events in Algeria and Mali are 
        an indication of what the future holds for Libya, 
        Islamists may be expected to wage armed attacks against 
        their opponents and western targets.\19\
---------------------------------------------------------------------------
    \19\Daniel Wagner & Giorgio Cafiero, Rise of Radical Muslim Groups 
in Libya (January 23, 2013), available at http://
www.realclearworld.com/articles/2013/01/23/rise_of_radical_muslim_
groups_in_libya_100499.html, last visited October 29, 2014.

    Reports have indicated that al-Qaeda Senior Leadership 
(AQSL) is seeking to create an al-Qaeda clandestine network in 
Libya that could be activated in the future to destabilize the 
government and/or to offer logistical support to al-Qaeda's 
activities in North Africa and the Sahel.\20\ Al-Qaeda in the 
Islamic Maghreb (AQIM) has reportedly formed sleeper cells that 
are probably connected to an Al-Qaeda underground network in 
Libya, likely as a way to secure the supply of arms for its 
ongoing jihadist operations in Algeria and the Sahel. Al-Qaeda 
and its North African affiliate have clearly taken advantage of 
the still-evolving, post-revolutionary, political and social 
dynamics in Libya.\21\
---------------------------------------------------------------------------
    \20\See A Report Prepared by the Federal Research Division, Library 
of Congress, Al-Qaeda in Libya: A Profile, available at https://
www.fas.org/irp/world/para/aq-libya-loc.pdf (August 2012).
    \21\See id.
---------------------------------------------------------------------------
    Even before the deadly attack on the U.S. consulate in 
Benghazi on September 11, 2012, there were clear signs that the 
security situation in eastern Libya was deteriorating.\22\ The 
pattern of violent incidents attributed to Salafist groups\23\ 
from March 2012 to September 2012 clearly demonstrated a 
worsening security environment. One important inflection point 
was a large demonstration that was held in Benghazi on June 7, 
2012, in which heavily armed Salafist groups from across the 
country gathered and called for the establishment of Sharia law 
in Libya.\24\ Between June and September 2012, numerous 
security incidents occurred in and around Benghazi:
---------------------------------------------------------------------------
    \22\See id.
    \23\Salafism is a militant group of extremist Sunnis.
    \24\See Details and analysis of the Benghazi attack available at 
http://www.wdrep.com/_wp/war/details-and-analysis-on-the-benghazi-
attack, last visited October 31, 2014.

         LJune 6, 2012--Improvised Explosive Device 
        (IED) attack on the Special Mission Compound. The IED 
        detonates with no injuries but blows a large hole in 
        the compound's exterior wall. A terrorist group makes 
---------------------------------------------------------------------------
        an unsubstantiated claim of responsibility.

         LJune 8, 2012--Two hand grenades target a 
        parked U.K. diplomatic vehicle in Sabha (800 km south 
        of Benghazi).

         LJune 11, 2012--While in Benghazi, the British 
        Ambassador's convoy is attacked with an Rocket 
        Propelled Grenade (RPG) and possible AK-47s. Two U.K. 
        security officers are injured; the U.K. closes its 
        mission in Benghazi the following day.

         LJune 12, 2012--An RPG attack is made on the 
        International Committee of the Red Cross (ICRC) 
        compound in Misrata (400 km west of Benghazi).

         LJune 18, 2012--Protestors storm the Tunisian 
        consulate in Benghazi.

         LJuly 29, 2012--An IED is found on grounds of 
        the Tibesti Hotel.

         LJuly 30, 2012--A Sudanese consul in Benghazi 
        is carjacked and the driver is beaten.

         LJuly 31, 2012--Seven Iranian-citizen ICRC 
        workers are abducted in Benghazi.

         LAugust 5, 2012--ICRC Misrata office is 
        attacked with RPGs. ICRC withdraws its representatives 
        from Misrata and Benghazi.

         LAugust 9, 2012--A Spanish-American dual 
        national NGO worker is abducted from the Islamic 
        Cultural Center in Benghazi and released the same day.

         LAugust 20, 2012--A small bomb is thrown at an 
        Egyptian diplomat's vehicle parked outside of the 
        Egyptian consulate in Benghazi.\25\
---------------------------------------------------------------------------
    \25\See U.S. Senate Select Committee on Intelligence, Review Of The 
Terrorist Attacks On U.S. Facilities In Benghazi, Libya, September 11-
12, 2012 at 12-14, available at: http://www.intelligence.senate.gov/
benghazi2014/benghazi.pdf. (January 15, 2014).

    In addition, during the 6 months prior to September 11, 
militant Salafists targeted U.S and other Western diplomatic 
and humanitarian entities, such as the U.N. and U.K. missions 
in Libya and the offices of the ICRC. They attacked physical 
structures and mobile targets including diplomatic vehicles. 
Attackers employed weapons ranging from RPGs to IEDs.
More Recent Terror Attacks
    The draft regulation also turns a blind eye to more recent 
terrorist activity. For example, the regulation makes no 
mention that on September 10, 2013, a group calling itself the 
Islamic Emirate of Libya posted a notice online listing the 
U.S. Embassy in Tripoli as a possible target of a terror attack 
coinciding with the anniversary that week of the September 11th 
terrorist attacks. The group stated in an Arabic-language 
online posting that it was asking supporters to select a target 
for a bombing to be carried out that week to commemorate the 
September 11 attacks by al-Qaeda:

        The first indications that jihadists might be 
        benefiting from the unrest in Libya came not long after 
        violence broke out, as regional leaders and press 
        reports suggested that AQIM had gained weapons from 
        abandoned Libyan stocks, including surface-to-air 
        missiles. Others suggested that the group had forged 
        connections with Libya's rebels, and that AQIM or al-
        Qaeda central might seek to implant itself in 
        Libya.\26\
---------------------------------------------------------------------------
    \26\Aaron Y. Zelin, Andrew Lebovich, Assessing Al-Qa`ida's Presence 
in the New Libya, available at https://www.ctc.usma.edu/posts/
assessing-al-qaidas-presence-in-the-new-libya last visited October 31, 
2014.

    In July and August 2013, U.S. military equipment used by 
U.S. Special Forces in Libya was stolen by terrorist groups 
from a military training camp run by U.S. Special Forces 
outside Tripoli.\27\ Specifically, highly sensitive U.S. 
military equipment stored in Libya was stolen over the summer 
by groups likely aligned and working with terrorist 
organizations.\28\ These raids contributed to the decision to 
pull Special Forces personnel from the country.\29\ ``Dozens of 
M4 rifles, night-vision technology and lasers used as aiming 
devices that are mounted on guns and can only be seen with 
night-vision equipment were lost in the raids.''\30\ One source 
indicated, ``The loss of this military equipment is what pulled 
the plug on the U.S. operation.''\31\ The source went on to say 
``No one at the State Department wanted to deal with the 
situation if any more went wrong, so State pulled its support 
for the training program and then began to try and get the team 
moved out of the country.''\32\
---------------------------------------------------------------------------
    \27\See Adam Housley, Sources: US weapons stolen in Libya raids, 
fueling Special Forces pull-out, available at http://www.foxnews.com/
politics/2013/09/11/us-military-weapons-equipment-
stolen-in-libya-raids/(September 11, 2013).
    \28\See id.
    \29\See id.
    \30\Id.
    \31\Id.
    \32\Id.
---------------------------------------------------------------------------
    To make matters worse, on October 5, 2013, U.S. special 
operations forces captured Abu Anas al-Liby in Tripoli.\33\ He 
was a senior al-Qaeda operative responsible for the 1998 
bombings of the U.S. embassies in Tanzania and Kenya, killing 
224 people.\34\ On October 6, 2013, after Abu Anas al-Liby was 
captured, Libya's interim government condemned the United 
States for what it alleged to be the ``kidnapping of a Libyan 
citizen'' and Libyan lawmakers threatened to remove the prime 
minister if the government was involved.\35\ The General 
National Congress, Libya's most senior national authority, also 
called the capture of al Liby ``flagrant aggression'' against 
sovereignty and demanded that he be turned over 
immediately.\36\ On October 8, 2013, Islamic militants called 
for the kidnapping of U.S. citizens in Libya and targeted 
attacks on American property following the raid by U.S. Special 
Forces to seize Abu Anas al-Liby.\37\ On October 10, 2013, 
Libyan Prime Minister Ali Zeidan was kidnapped and held for a 
short period of time before being released unharmed by a group 
angry at the leader for alleged support for the U.S. operation 
against al Liby.\38\
---------------------------------------------------------------------------
    \33\See Reuters, US forces detain Abu Anas Al Libi Al Qaeda leader 
accused of 1998 embassy bombings http://www.emirates247.com/news/
region/us-forces-detain-abu-anas-al-libi-2013-10-06-1.523483, (October 
6, 2013).
    \34\See id.
    \35\See Carlotta Gall and David D. Kirkpatrick, Libya Condemns U.S. 
for Seizing Terror Suspect, available at http://www.nytimes.com/2013/
10/07/world/africa/american-raids-in-africa.
html?_r=0 (October 6, 2013).
    \36\See Bill Gertz, Terrorists Threaten to Strike Back, Terrorists 
threaten Americans, journalists in Libya following U.S. capture of al 
Qaeda leader, available at http://freebeacon.com/terror-threats-up-in-
libya/(October 11, 2013).
    \37\See Tracey Shelton, US citizens threatened with attack, kidnap 
in Libya after terror raid, available at http://www.nbcnews.com/news/
world/us-citizens-threatened-attack-kidnap-libya-after-terror-raid-
v20870872 (October 8, 2013).
    \38\See Ulf Laessing, Libyan PM flees country after tanker escapes 
rebel-held port, available at http://www.reuters.com/article/2014/03/
12/us-libya-oil-idUSBREA2B0N920140312 (March 12, 2013).
---------------------------------------------------------------------------
    These incidents demonstrate the violent backlash in Libya 
created by any U.S. anti-terror activity in that country, but, 
per the Obama administration's draft regulation, such actions 
are the benign fruit of a ``normal'' international 
relationship.
    There have been numerous concerns regarding the political 
situation in Libya more recently. For example, on March 12, 
2014, the Libyan prime minister Ali Zeidan ``fled after 
parliament voted him out of office,'' a North Korean oil tanker 
``illegally picked up a cargo of crude from rebels in the east 
of the country'' and then manage to sail away with no problems 
even though government officials said that the vessel would be 
``turned into a pile of metal'' if it left the country.\39\ 
``Militias based in Misrata, western Libya, notorious for their 
violence and independence, have launched an offensive against 
the eastern rebels in what could be the opening shots in a 
civil war between western and eastern Libya. Without a central 
government with any real power, Libya may be falling 
apart.''\40\ To make matters worse:
---------------------------------------------------------------------------
    \39\See Three years after Qadhafi, Libya is imploding into chaos 
and violence. World View: Its government has no real power; militias 
are ever more entrenched, and now the state itself is under threat, 
available at http://www.independent.co.uk/voices/commentators/three-
years-after-Qadhafi-libya-is-imploding-into-chaos-and-violence-
9194697.html, (March 16, 2014).
    \40\Id.

        Libya's oil exports have fallen from 1.4 million 
        barrels a day in 2011 to 235,000 barrels a day. 
        Militias hold 8,000 people in prisons, many of whom say 
        they have been tortured. Some 40,000 people from the 
        town of Tawergha south of Misrata were driven from 
        their homes which have been destroyed. ``The longer 
        Libyan authorities tolerate the militias acting with 
        impunity, the more entrenched they become, and the less 
        willing to step down'' said Sarah Leah Whitson, Middle 
        East and North Africa director at Human Rights Watch. 
        ``Putting off repeated deadlines to disarm and disband 
        militias only prolongs the havoc they are creating 
        throughout the country.''\41\
---------------------------------------------------------------------------
    \41\Id.

    On March 19, Libya acknowledged for the first time that 
``terrorist groups'' were behind dozens of attacks against 
security services. The government indicated that ``Benghazi, 
Derna, Sirte and other cities are facing a terrorist war waged 
by Libyan and foreign elements who have hostile, evil 
agendas.''\42\
---------------------------------------------------------------------------
    \42\Ali Al-Gattani, Libya Seeks Help to Combat Terrorism, available 
at http://allafrica.com/
stories/201403211519.html, (March 21 2014).
---------------------------------------------------------------------------
    On March 20, 2014, Libya's government requested assistance 
from the international community to help it fight the terrorism 
that is causing instability in the country.\43\ On the same 
day, a missile was launched at the Tripoli runway shutting down 
the airport. Then:
---------------------------------------------------------------------------
    \43\See Voice of America, Libya: Govt Seeks World's Help to Fight 
Terrorism, available at http://allafrica.com/stories/201403200678.html 
(March 20, 2014).

        On July 13, 2014, heavy fighting broke out between 
        rival militias vying for control of Libya's main 
        airport, killing at least seven people and forcing a 
        halt of all flights in the worst fighting in the 
        capital in 6 months. An election in June had been aimed 
        at rebuilding state institutions in an attempt to quell 
        3 years of spreading violence since the ouster of long-
        time ruler Muammar Qadhafi. The recent fighting is part 
        of growing turmoil in the North African oil producer, 
        where the government is unable to control battle-
        hardened militias that helped to overthrow Qadhafi in 
        2011 but continue to defy state authority.\44\
---------------------------------------------------------------------------
    \44\Louis Charbonneau, Libya warns United Nations of possible slide 
into civil war, available at http://www.reuters.com/article/2014/08/27/
us-libya-security-un-idUSKBN0GR1TT20140827, last visited October 30, 
2014.

    On July 26, 2014, ``the United States suspended operations 
at its embassy in Libya and evacuated its diplomats to 
neighboring Tunisia under U.S. military escort amid a 
significant deterioration in security in Tripoli as fighting 
intensified between rival militias.''\45\ The State Department 
indicated that ``Due to the ongoing violence resulting from 
clashes between Libyan militias in the immediate vicinity of 
the U.S. Embassy in Tripoli, we have temporarily relocated all 
of our personnel out of Libya,''\46\ The withdrawal 
demonstrated the continued threat in Libya and the need to 
protect diplomats abroad, ``particularly in Libya after the 
deadly 2012 attack on the U.S. mission in the eastern city of 
Benghazi.''\47\ Approximately ``70 embassy staffers were driven 
out of the city in a caravan by 80 Marines.''\48\
---------------------------------------------------------------------------
    \45\US evacuates embassy in Libya amid clashes in Tripoli. Fox 
News, available at http://www.foxnews.com/world/2014/07/26/us-
evacuates-embassy-in-libya-amid-clashes-in-tripoli/ (July 26, 2014).
    \46\Id.
    \47\Id.
    \48\Id.
---------------------------------------------------------------------------
    On August 4, 2014, militia clashes in Libya spread from 
Tripoli to the town of Zawiya close to the Tunisian border, 
resulting in the death of four people.\49\ Most foreign 
governments have closed their embassies and evacuated staff 
after weeks of clashes that ``turned Libya's two main cities--
Tripoli and Benghazi--into warzones in the worst fighting since 
the NATO-backed war against Qadhafi.''\50\ Unfortunately, 
``three years after Qadhafi's fall, Libya's government has been 
unable to tame rival brigades of former rebel fighters who have 
allied themselves with competing political factions in a 
struggle over post-war spoils.''\51\
---------------------------------------------------------------------------
    \49\See Aziz El Yaakoubi, Libya militia clashes spread beyond 
Tripoli towards Zawiya oil port, available at http://news.yahoo.com/
libya-militia-clashes-spread-beyond-tripoli-towards-zawiya-
181224987.html (August 7, 2014).
    \50\Id.
    \51\Id.
---------------------------------------------------------------------------
    On August 27, 2014, Libya warned the U.N. Security Council 
that the country could ``descend into full-scale civil war if 
heavily armed warring factions are not disarmed.''\52\ The 
council met to discuss Libya days after its parliament, ``which 
was replaced in an election in June, reconvened and chose an 
Islamist-backed deputy as the new prime minister. That left the 
country with two rival leaders and assemblies, each backed by 
armed factions.''\53\
---------------------------------------------------------------------------
    \52\Supra note 44.
    \53\Id.
---------------------------------------------------------------------------
    In August, Libya's elected government was forced to flee 
the capital, Tripoli, and take shelter in Tobruk, a port city 
near the border with Egypt.\54\ And as of September 9, 2014, 
Libya's parliament-in-exile was under siege, and compelled to 
find accommodation in a Greek car ferry moored at Tobruk's 
docks.\55\ The 17,000-ton boat, typically used to convey 
vehicles between Italy and Greece, is the temporary residence 
for dozens of lawmakers in need of sanctuary.\56\
---------------------------------------------------------------------------
    \54\See Chris Stephen, Libyan parliament takes refuge in Greek car 
ferry: Elyros liner is deployed as floating hotel for legislature that 
has fled war-torn capital for eastern town of Tobruk, available at 
http://www.theguardian.com/world/2014/sep/09/libyan-parliament-refuge-
greek-car-ferrym, last visited October 31, 2014 (September 9, 2014).
    \55\See id.
    \56\See id.
---------------------------------------------------------------------------
    Overall:

        Since the uprising against Qadhafi began in February 
        2011, Libya has become a source of attention for 
        jihadists and a grave concern for regional and Western 
        leaders. There are clear signs of jihadist efforts to 
        infiltrate Libya, and even signs of some possible 
        success for al-Qaeda in establishing a small but 
        significant presence in Libya. Security officials must 
        be vigilant for signs of support for al-Qaeda among 
        Libyan militias and further expansion of the group's 
        reach, especially evidence of training and 
        indoctrination of Libyans by al-Qaeda-linked figures.

        It appears that AQIM in particular has chosen to profit 
        from the Libyan unrest by seizing weapons, but has 
        remained ensconced in safe havens in northern Mali and 
        Algeria. The same cannot be definitively said for other 
        al-Qaeda-linked figures, who are accustomed to 
        operating clandestinely when setting up funding and 
        operational networks and may be doing the same in 
        Libya. Given al-Qaeda's expressed interest in the 
        country and the key role Libyan militants have 
        historically played in the organization, this concern 
        cannot be easily dismissed.\57\
---------------------------------------------------------------------------
    \57\Supra note 26.

    All of these issues show that the time now is not ripe to 
lift the longstanding regulation put into place to protect U.S. 
interest. Given the instability of the government, it is highly 
possible that even if we assist with training Libyans for whom 
the government has vouched, should the government fall apart, 
our training, resources, and tools could be used against us, or 
our allies. As Janice Kephart elaborated in her testimony 
---------------------------------------------------------------------------
before this Committee:

        Concerns about aviation education are widely 
        understood, mostly due to the facts and circumstances 
        of the four 9/11 hijacker pilots who obtained their 
        expertise in aviation primarily at U.S. flight schools. 
        Perhaps a little less well known is that the Pentagon 
        pilot, Hani Hanjour, was likely picked for the 9/11 
        operation due to his attendance to flight school in the 
        U.S. in the mid-1990's. The 9/11 Final Report 
        supplement, 9/11 and Terrorist Travel, provides an in-
        depth explanation of how the two lead 9/11 pilots 
        abused the immigration process to enter the United 
        States without vocational ``M'' visas, but attended 
        flight school anyway.\58\
---------------------------------------------------------------------------
    \58\Testimony of Janice Kephart, Joint Hearing before the House 
Judiciary Committee Subcommittee on Immigration and Border Security and 
the House Oversight and Government Reform Committee Subcommittee on 
National Security, Overturning 30 Years of Precedent: Is the 
Administration Ignoring the Dangers of Training Libyan Pilots and 
Nuclear Scientists, April 3, 2014.
---------------------------------------------------------------------------
D. Country Specific Bans
    Libya is not the only country that is subject to a country 
specific bar, hence it is not accurate to say that there are no 
other similar bars. There are numerous statutes that bar 
nationals from specific countries from certain immigration 
benefits, signifying that Congress has seen fit to block 
nationals from certain countries from obtaining certain 
benefits under the Immigration and Nationality Act.
    For example, in 2012 President Obama signed into law 
legislation banning Iranian nationals from engaging in nuclear 
studies.\59\ Military visitors from certain listed countries 
may not obtain a visa waiver to travel to the U.S. available to 
military members of other countries. Countries ineligible for 
the waiver include Cuba, Mongolia, North Korea, Vietnam, and 
the People's Republic of China.\60\ Further, nationals of state 
sponsors of terrorism cannot receive P visas, and all visa 
applications in Saudi Arabia need to be reviewed by U.S. 
Immigration and Customs Enforcement prior to adjudication.\61\ 
In short, many other countries have special restrictions or 
limitations placed upon them.
---------------------------------------------------------------------------
    \59\See section 501 of Pub. L. No. 112-158 (The Iran Threat 
Reduction and Syria Human Rights Act of 2012).
    \60\See 22 CFR Sec. 41.3(e).
    \61\See INA Sec. 214(c)(4)(F)(i).
---------------------------------------------------------------------------
E. Integrity of the Immigration System and Visa Applicant Screening
    Ultimately, we must determine whether national security has 
been adequately considered in the making of this rule and 
whether the immigration system has sufficient integrity to 
withstand potential uncertainties about applicants' long term 
interests in obtaining sensitive security information and 
education from the United States.\62\
---------------------------------------------------------------------------
    \62\Supra note 58.
---------------------------------------------------------------------------
    Mohammad Atta and the 9-11 hijackers got around the 
screening in place in 2001 and Umar Farouk Abdulmutallab (the 
``Underwear Bomber'') got past the supposedly hi-tech screening 
in place in 2009. Any database is only as good as the 
intelligence we possess. Given Libya's current state of 
disarray, our ability to make adequate findings of fact 
regarding the intentions of Libyan visa applicants is 
questionable at best. Hence, it is important to remember that 
these systems are not foolproof and it is imprudent to do away 
with a sensible restriction while Libya remains in chaos and 
appears to be descending into civil war, 2 years since our 
Ambassador to that country was murdered by an armed terrorist 
force. Further, core 9/11 Final Report recommendations and 9/11 
and Terrorist Travel staff report findings of fact show that 
vigilance is essential when assuring immigration integrity 
against entry of foreign nationals who may threaten national 
security.\63\
---------------------------------------------------------------------------
    \63\See id.
---------------------------------------------------------------------------
    The integrity of our immigration system ``is grounded in 
confidence that nations actively engaged in sending their 
foreign nationals to the United States for training or study 
programs that are listed on the Technology Alert List\64\ such 
as nuclear science, or technical training in aviation, will not 
support proliferation of weapons of mass destruction; restrain 
from developing destabilizing conventional military 
capabilities in unstable regions of the world; and prevent the 
transfer of arms and sensitive dual-use items to terrorist 
states.''\65\ Indeed, ``while U.S. policy states that Libya is 
no longer a state sponsor of terror per se, by Libya's own 
assertion as recently as August 27, 2014, the country suffers 
from terrorist threat from within.''\66\
---------------------------------------------------------------------------
    \64\The Technology Alert List is used by consular officials during 
the interview process in determining the issuance of non-immigrant 
visas. The list is used in cases that may fall under the Immigration 
Nationality Act Sec. 212(a)(3)(a), which renders inadmissible aliens 
who there is reason to believe are seeking to enter the U.S. to violate 
U.S. laws prohibiting the export of goods, technology or sensitive 
information.
    \65\Supra note 58.
    \66\Id.
---------------------------------------------------------------------------
    DHS claims that even in the absence of 8 C.F.R. Sec. 214.5, 
Libyan visa applicants whose planned travel raises security 
concerns would continue to be subject to requirements of 
interagency review and clearance under the ``Visas Mantis'' 
vetting procedure.\67\
---------------------------------------------------------------------------
    \67\Alan Bersin, Recommendation to take Regulatory Action to 
Rescind 8. C.F.R. Sec. 214.5, Memorandum to the Secretary Napolitano, 
(February 12, 2013).
---------------------------------------------------------------------------
    However, in regard to adjudication of nuclear or aviation-
related student visas, the proposed DHS Final Rule states that 
Visas Mantis will apply only to ``Libyan visa applicants whose 
planned travel raises security concerns.''\68\
---------------------------------------------------------------------------
    \68\Supra note 2.
---------------------------------------------------------------------------
    Furthermore, new 2012 State Department consular guidance 
states: ``The Deputy Assistant Secretary for Visa Services may 
waive personal appearance requirement for an individual [visa] 
applicant after determining that such waiver is . . . in the 
national interest of the United States.''\69\ In addition, 
[State Department consular guidance] gives authority to the 
Deputy Assistant Secretary for Visa Services to waive the in-
person interview requirements if ``national security concerns 
do not require an interview.''\70\
---------------------------------------------------------------------------
    \69\Supra note 83; citing 9 FAM 41.102 N3.2(b).
    \70\Supra note 83; citing 9 FAM 1.102 N3.5.
---------------------------------------------------------------------------
    As Janice Kephart stated in her testimony:

        Reversing a 30-year Libyan ban on highly sensitive 
        visas such as aviation operation and training and 
        nuclear-related studies in a highly unstable political 
        environment requires active review by the American 
        people. If such a decision is determined to be 
        warranted, all precautions must be in place. This is 
        especially the case in instances where the United 
        States is deciding to actively engage with a former 
        designated state sponsor of terror such as Libya, a 
        country whose nationals continue to conduct deadly 
        terrorist activities against Americans and their own 
        government. 
        When granting access to highly sensitive U.S. 
        immigration benefits such as aviation and nuclear 
        studies that have a strong and proven impact on 
        national security, best-in-class immigration vetting is 
        essential. Robust visa processing, including mandated 
        interviews, Kingfisher and immigration security reviews 
        are essential prior to visa issuance. Improvements and 
        tracking through SEVIS is essential. Immigration 
        enforcement should apply when necessary. All of these 
        elements should be placed prior to any 214.5 rule 
        rescission.

        Without a robust plan in place that assures security 
        vetting for both nuclear and aviation visa applicants' 
        eligibility, it is of concern that the terrorist 
        organizations that currently plague the Libyan 
        government could attempt to infiltrate the program, the 
        Libyan government could fall to an unfriendly regime, 
        or the Libyan government itself could have an unstated 
        agenda.\71\
---------------------------------------------------------------------------
    \71\Supra note 58.

    However, it is quite uncertain that U.S. security could be 
preserved even with these security measures in place with 
regard to Libyans seeking to work in aviation maintenance, 
flight operations or to study or train in nuclear related 
fields.

                                Hearings

    The Subcommittee on Immigration and Border Security held a 
joint hearing on April 3, 2014 with the Committee on Oversight 
and Government Reform's Subcommittee on National Security.

                        Committee Consideration

    On September 10, 2014, the House Judiciary Committee met in 
open session and ordered the bill H.R. 5401 favorably reported, 
without amendment, by a rollcall vote of 21 to 11, a quorum 
being present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that the 
following rollcall votes occurred during the Committee's 
consideration of H.R. 5401.
    1) An amendment was offered by Ms. Lofgren that created an 
exemption for Libyans to come to the U.S. for the purposes of 
studying or working in aviation or studying nuclear science so 
long as they participating in a DHS approved program in 
consultation with DOD. Defeated 13-20.

                             ROLLCALL NO. 1
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Coble (NC).................................              X
Mr. Smith (TX).................................              X
Mr. Chabot (OH)................................              X
Mr. Bachus (AL)................................              X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................              X
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................              X
Mr. Gohmert (TX)...............................              X
Mr. Jordan (OH)................................              X
Mr. Poe (TX)...................................              X
Mr. Chaffetz (UT)..............................              X
Mr. Marino (PA)................................              X
Mr. Gowdy (SC).................................              X
Mr. Labrador (ID)..............................              X
Ms. Farenthold (TX)............................              X
Mr. Holding (NC)...............................              X
Mr. Collins (GA)...............................              X
Mr. DeSantis (FL)..............................              X
Mr. Smith (MO).................................              X
[Vacant].......................................
 
Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................      X
Mr. Scott (VA).................................      X
Ms. Lofgren (CA)...............................      X
Ms. Jackson Lee (TX)...........................      X
Mr. Cohen (TN).................................      X
Mr. Johnson (GA)...............................      X
Mr. Pierluisi (PR).............................      X
Ms. Chu (CA)...................................      X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................      X
Ms. DelBene (WA)...............................      X
Mr. Garcia (FL)................................
Mr. Jeffries (NY)..............................      X
Mr. Cicilline (RI).............................      X
                                                ------------------------
    Total......................................     13      20
------------------------------------------------------------------------

    2) An amendment was offered by Ms. Jackson Lee that 
required the Administration to submit reports on the need for 
the bill and provided for a sunset of the bill within 3 years. 
Defeated 14-19.

                             ROLLCALL NO. 2
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Coble (NC).................................              X
Mr. Smith (TX).................................              X
Mr. Chabot (OH)................................              X
Mr. Bachus (AL)................................
Mr. Issa (CA)..................................              X
Mr. Forbes (VA)................................              X
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................              X
Mr. Gohmert (TX)...............................              X
Mr. Jordan (OH)................................              X
Mr. Poe (TX)...................................              X
Mr. Chaffetz (UT)..............................              X
Mr. Marino (PA)................................              X
Mr. Gowdy (SC).................................              X
Mr. Labrador (ID)..............................              X
Ms. Farenthold (TX)............................              X
Mr. Holding (NC)...............................              X
Mr. Collins (GA)...............................
Mr. DeSantis (FL)..............................              X
Mr. Smith (MO).................................              X
[Vacant].......................................
 
Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................      X
Mr. Scott (VA).................................      X
Ms. Lofgren (CA)...............................      X
Ms. Jackson Lee (TX)...........................      X
Mr. Cohen (TN).................................      X
Mr. Johnson (GA)...............................      X
Mr. Pierluisi (PR).............................      X
Ms. Chu (CA)...................................      X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................      X
Ms. DelBene (WA)...............................      X
Mr. Garcia (FL)................................      X
Mr. Jeffries (NY)..............................      X
Mr. Cicilline (RI).............................      X
                                                ------------------------
    Total......................................     14      19
------------------------------------------------------------------------

    3. Motion to report H.R. 5401 favorably. Passed 21-11.

                             ROLLCALL NO. 3
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................      X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Coble (NC).................................      X
Mr. Smith (TX).................................      X
Mr. Chabot (OH)................................      X
Mr. Bachus (AL)................................      X
Mr. Issa (CA)..................................      X
Mr. Forbes (VA)................................      X
Mr. King (IA)..................................      X
Mr. Franks (AZ)................................      X
Mr. Gohmert (TX)...............................      X
Mr. Jordan (OH)................................      X
Mr. Poe (TX)...................................      X
Mr. Chaffetz (UT)..............................      X
Mr. Marino (PA)................................      X
Mr. Gowdy (SC).................................      X
Mr. Labrador (ID)..............................      X
Ms. Farenthold (TX)............................      X
Mr. Holding (NC)...............................      X
Mr. Collins (GA)...............................
Mr. DeSantis (FL)..............................      X
Mr. Smith (MO).................................      X
[Vacant].......................................
 
Mr. Conyers, Jr. (MI), Ranking Member..........              X
Mr. Nadler (NY)................................              X
Mr. Scott (VA).................................              X
Ms. Lofgren (CA)...............................              X
Ms. Jackson Lee (TX)...........................              X
Mr. Cohen (TN).................................              X
Mr. Johnson (GA)...............................              X
Mr. Pierluisi (PR).............................              X
Ms. Chu (CA)...................................              X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................              X
Ms. DelBene (WA)...............................      X
Mr. Garcia (FL)................................
Mr. Jeffries (NY)..............................              X
Mr. Cicilline (RI).............................
                                                ------------------------
    Total......................................     21      11
------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    With respect to clause 3(c)(3) of rule XIII of the Rules of 
the House of Representatives, an estimate and comparison 
prepared by the Director of the Congressional Budget Office 
under section 402 of the Congressional Budget Act of 1974 was 
not submitted to the Committee before the filing of the report.

                    Duplication of Federal Programs

    No provision of H.R. 5401 establishes or reauthorizes a 
program of the Federal Government known to be duplicative of 
another Federal program, a program that was included in any 
report from the Government Accountability Office to Congress 
pursuant to section 21 of Public Law 111-139, or a program 
related to a program identified in the most recent Catalog of 
Federal Domestic Assistance.

                  Disclosure of Directed Rule Makings

    The Committee estimates that H.R. 5401 specifically directs 
to be completed no specific rule makings within the meaning of 
5 U.S.C. 551.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
5401 codifies a longstanding prohibition at 8 C.F.R Sec. 214.5 
on Libyans to come to the U.S. to attend flight school, to work 
in aviation maintenance or flight operations, or to study or 
seek training in nuclear science.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 5401 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.

                      Section-by-Section Analysis

    Sec. 1. Short Title. Section 1 sets forth the short title 
of the bill as the ``Protecting the Homeland Act.''
    Sec. 2. Libyan and Third Country Nationals Acting on behalf 
of Libyan Entities. Section 2 terminates the non-immigrant 
status of any Libyan national, or any other foreign national 
acting on behalf of a Libyan entity, who is engaging in 
aviation maintenance, flight operations, or nuclear-related 
studies. It also bars any such person from receiving certain 
similar enumerated benefits under our immigration laws.

                             Minority Views

    H.R. 5401, the ``Protecting the Homeland Act,'' codifies 
and makes permanent a regulation that currently bans all Libyan 
nationals from coming to the United States to study or train in 
aviation maintenance, flight operations, or nuclear science. 
Since the regulation was first issued in 1983, much has changed 
with respect to America's immigration system. Under our current 
system, all visa applicants now must go through extensive 
background and security checks, including interviews and 
biometric screenings. Applicants who pose security concerns are 
subject to additional vetting by the intelligence and law 
enforcement communities. Much has also changed over the last 31 
years with respect to the relationship between the United 
States and Libya. Beginning in the late 1990's, Libya took 
steps to denounce terrorism and abandon its nuclear and 
chemical weapons programs. During the George W. Bush 
Administration, the United States lifted economic sanctions 
against Libya, removed the country from the list of state 
sponsors of terrorism, and entered into a Science and 
Technology Cooperation Agreement with the country to educate 
and train Libyan scientists and technical experts.
    Over the past several years, the Department of Defense 
(DOD) and the Department of State have several times requested 
that the Department of Homeland Security (DHS) take steps to 
rescind the existing regulatory ban. These departments--not one 
of which is generally considered soft on terror--have argued 
that lifting the ban would advance America's security interests 
and better enable the U.S. government to support the new, 
democratically-elected Libyan government in its battle against 
extremist elements that are our common enemy. They also have 
argued that the background and security checks that are 
performed on all visa applicants and the enhanced law 
enforcement and intelligence checks that certain applicants 
undergo sufficiently protect our national security interests. 
At the time that H.R. 5401 was considered in Committee, a 
proposed final rule to rescind the regulatory ban was before 
the Secretary of Homeland Security. On September 17, 2014, 
Homeland Security Secretary Jeh Johnson testified before the 
Committee on Homeland Security that he decided not to rescind 
the regulatory ban.
    Whether or not the existing regulation should remain in 
place is not the issue presented by H.R. 5401. That question 
resides with DHS, which decided to keep the regulation in place 
after consulting with DOD, the Department of State, and the 
intelligence community. Rather, the issue presented by H.R. 
5401 is whether Congress should ignore the recommendations 
presented by the DOD, the State Department, and DHS and 
permanently tie the hands of the executive. It is our belief 
that codifying the existing regulation and making it permanent 
locks us into an unnecessary and unwise position. To the extent 
that some congressional action may be needed at this time, we 
believe that a more tailored approach that acknowledges the 
legitimate interests of our defense and national security 
experts would be preferable to the blanket and permanent ban 
imposed by H.R. 5401.

                       DESCRIPTION AND BACKGROUND

    H.R. 5401 codifies and makes permanent a regulation that 
currently bans all Libyan nationals from coming to the United 
States to study or train in aviation maintenance, flight 
operations, or nuclear science. On September 10, 2014, the 
Committee voted to report the bill to the full House by a vote 
of 21-11.
    The bill replicates the exact text of the Libyan and Third 
Country Nationals Acting on Behalf of Libyan Entities 
regulation.\1\ Section 2(a) terminates the nonimmigrant status 
of any Libyan national, or of any other foreign national acting 
on behalf of a Libyan entity, who is engaging in aviation 
maintenance, flight operations, or nuclear-related studies or 
training.
---------------------------------------------------------------------------
    \1\8 C.F.R. Sec. 214.5 (1983).
---------------------------------------------------------------------------
    Subsection (b) prohibits such persons from applying for 
school transfer, extension of stay, employment authorization or 
practical training, reinstatement of student status, or change 
of nonimmigrant status.

                        CONCERNS WITH H.R. 5401

I. EXISTING LEGAL AUTHORITIES AND BACKGROUND AND SECURITY CHECKS MAKE A 
            BLANKET VISA BAN ON LIBYAN NATIONALS UNNECESSARY

    A statutory ban on immigration benefits to Libyan nationals 
is not needed to protect the United States or its interests 
abroad. For example, there are currently no similar statutory 
or regulatory restrictions banning immigration benefits for 
nationals of countries such as Cuba, Sudan, and Syria, each of 
which remains a designated state sponsor of terrorism. Such 
restrictions are unnecessary because DHS and the State 
Department have broad authority under section 212(a)(3) of the 
Immigration and Nationality Act (INA) to deny visas and 
admission to any person suspected of being a terrorist, 
providing material support to terrorists, associating with 
terrorists, or otherwise posing a danger to national security 
or other U.S. interests.\2\ DHS and the State Department also 
have wide discretion to deny entry to a person whose entry 
poses potentially serious adverse foreign policy concerns,\3\ 
or a person who is suspected of being likely to violate U.S. 
immigration law or the terms of admission to the country.\4\
---------------------------------------------------------------------------
    \2\INA Sec. 212(a)(3)(A); 8 U.S.C. Sec. 1182(a)(3)(A).
    \3\INA Sec. 212(a)(3)(C); 8 U.S.C. Sec. 1182(a)(3)(C).
    \4\INA Sec. 214(b); 8 U.S.C. Sec. 1184(b).
---------------------------------------------------------------------------
    In other words, rather than issuing blanket policies 
affecting all nationals of particular countries, DHS and the 
State Department primarily use a more targeted approach that 
weighs each individual's background, the reason for travel to 
the country, any U.S. interests that might be affected, and 
other critical factors. This enables DHS and the State 
Department to allow admission to persons who may benefit the 
U.S. while denying admission to persons who may pose a danger 
to our Nation. Such an approach is far superior to the approach 
that would be permanently codified into law by H.R. 5401, which 
denies visas to friends and foes alike.
    Moreover, since the Libyan-specific regulation was 
promulgated in 1983, the U.S. government has significantly 
improved and expanded its procedures for vetting visa 
applicants, and today's vetting process considers a far broader 
range of information than it did in past years. Before the 
State Department issues a visa, applicants are interviewed and 
their fingerprints are checked against two law enforcement 
databases. The DHS Automated Biometric Identification System, 
or IDENT, screens against available fingerprints of known and 
suspected terrorists, wanted persons, and immigration law 
violators. IDENT currently contains approximately 160 million 
entries. More than 10,000 matches of visa applicants with 
records on the IDENT watchlist are returned to consular posts 
every month. The second database is the FBI's Integrated 
Automated Fingerprint Identification System, which contains 
more than 76 million criminal history records.\5\
---------------------------------------------------------------------------
    \5\Overturning 30 Years of Precedent: Is the Administration 
Ignoring the Dangers of Training Libyan Pilots and Nuclear Scientists?: 
J. Hearing Before the H. Subcomm. on Immigration and Border Security 
and the H. Subcomm. on National Security, 113th Cong. 47 (2014) 
[hereinafter ``Libya Hearing''] (statement of Alan D. Bersin, Assistant 
Secretary for International Affairs and Chief Diplomatic Officer, 
Office of International Affairs, U.S. Department of Homeland Security).
---------------------------------------------------------------------------
    Visa applicants also are checked against the automated 
Consular Lookout and Support System (CLASS), which contains 27 
million records of persons found ineligible for visas or 
against whom potentially derogatory information exists. CLASS 
identifies matches between the names of visa applicants and any 
derogatory information contained in the database. CLASS has 
grown more than 400 percent since 2001--largely the result of 
improved interagency information sharing. Consular officers 
also run all visa applicants' names against the Consular 
Consolidated Database in order to detect and respond to 
derogatory information regarding visa applicants and visa 
holders. The Consular Consolidated Database contains more than 
143 million immigrant and nonimmigrant visa records.\6\
---------------------------------------------------------------------------
    \6\Id. at 47-48.
---------------------------------------------------------------------------
    Finally, the National Counterterrorism Center introduced in 
2013 the Kingfisher Expansion program, which now subjects all 
immigrant and nonimmigrant visa applications to 
counterterrorism reviews based upon a sophisticated, automated 
comparison of visa application data against U.S. government 
classified terrorist identity holdings.\7\
---------------------------------------------------------------------------
    \7\Id. at 48-49.
---------------------------------------------------------------------------
    Those are the standard checks that are applied to all visa 
applicants. Additional layers of security exist in the Security 
Advisory Opinion (SAO) process, which involves additional 
vetting by intelligence and law enforcement communities.\8\ 
Foreign nationals coming to the U.S. to engage in flight 
training, which could now include nationals of such states as 
Iran, North Korea, Yemen, and Saudi Arabia, are subject to 
additional security threat assessments and restrictions imposed 
by statute and regulation.\9\ And persons whose planned travel 
raises concerns regarding the transfer of sensitive technology 
or knowledge or the proliferation of weapons of mass 
destruction undergo still more checks through the Visas Mantis 
vetting process.\10\
---------------------------------------------------------------------------
    \8\Id. at 48.
    \9\See 49 U.S.C. Sec. 44939; see also 49 C.F.R. Sec. 1552.
    \10\Libya Hearing at 48.
---------------------------------------------------------------------------

 II. A BLANKET STATUTORY RESTRICTION ON LIBYAN VISAS COULD HINDER U.S.-
  LIBYA MILITARY COOPERATION, NONPROLIFERATION, AND OTHER EFFORTS TO 
                 STRENGTHEN OUR BILATERAL RELATIONSHIP

    During the markup, the Majority argued that the current 
regulation should not be rescinded in light of the security 
situation in Libya. Indeed, Secretary Johnson came to the same 
conclusion 1 month later, telling the Committee on Homeland 
Security that he was not prepared to rescind the regulation at 
this time.\11\ Although the sponsors of H.R. 5401 praised the 
decision, they nevertheless announced plans to ``move forward 
with legislation to prevent future Administrations from 
changing this policy.''\12\ In effect, they repeated their 
argument that because certain extremist elements in Libya are 
now dangerous and would do us harm, we must retain the 
regulation at all costs and permanently codify it into law.
---------------------------------------------------------------------------
    \11\Worldwide Threats to the Homeland: Hearing Before the H. Comm. 
on Homeland Security, 113th Cong. (Sept. 17, 2014).
    \12\Press Release, H. Committee on the Judiciary, Gowdy, Goodlatte, 
Chaffetz Praise Secretary's Decision to Keep Ban on Libyans Training as 
Pilots and Nuclear Scientists in U.S. (Sept. 17, 2014), at http://
judiciary.house.gov/index.cfm/2014/9/gowdy-goodlatte-chaffetz-praise-
secretary-johnson-s-decision-to-keep-ban-on-libyans-training-as-pilots-
and-nuclear-scientists-in-u-s.
---------------------------------------------------------------------------
    Nevertheless, the presence of dangerous factions within 
Libya actually may be a primary reason to rescind the 
regulation at some point, according to military and national 
security experts within the administration. The reason for 
this, they explain, is that the current ban impedes various 
U.S. efforts to support the new, democratically elected Libyan 
government in its battle against those extremist elements.
    In 2012, the DOD and the State Department wrote to the DHS 
to explain that it is in America's interests that Libyan Air 
Force personnel receive necessary flight training in the U.S. 
to rebuild their fleet and that the current ban ``will have 
serious implications for U.S.-Libya military cooperation and 
the overall bilateral relationship.''\13\ It is worth 
remembering that the Libyan government used one of its Lockheed 
C-130 aircraft to rescue and evacuate the surviving U.S. 
diplomatic personnel in Benghazi on the night of September 11, 
2012. The letter further explained that banning all Libyan 
students and scientists from pursuing studies and receiving 
training in nuclear-related fields in the U.S. actually 
interferes with the efforts of the Department of Energy and the 
State Department to provide such people with skills and 
training that can be used for ``peaceful and economically 
viable pursuits.''\14\
---------------------------------------------------------------------------
    \13\Libya Hearing at 20 (letter from Jeffrey Feltman, Assistant 
Secretary of State for Near Eastern Affairs, and Joseph McMillan, 
Acting Assistant Secretary of Defense for International Security 
Affairs, to David Heyman, Assistant Secretary of Homeland Security for 
Policy (May 31, 2012)).
    \14\Id. at 21.
---------------------------------------------------------------------------
    Although the security situation in Libya remained tenuous 
and the Libyan government continued to face serious challenges 
from extremists in the region, the DOD renewed its support for 
rescission of the regulation in April 2014. The Deputy 
Assistant Secretary of Defense for Africa Policy wrote to ``now 
more than ever the Libyan government needs capable, centrally 
controlled Armed Forces.''\15\ In order to do that, the Libyan 
Air Force must have the ability to maintain and upgrade its 
aging and increasingly obsolete fleet of U.S.-made aircraft and 
helicopters. That simply cannot happen if we enact a law that 
institutes a permanent visa ban on an entire class of Libyan 
nationals.
---------------------------------------------------------------------------
    \15\Id. at 26 (letter from Amanda Dory, Deputy Assistant Secretary 
of Defense for Africa Policy to Alan D. Bersin, Assistant Secretary for 
International Affairs and Chief Diplomatic Officer, Office of 
International Affairs, U.S. Department of Homeland Security (Apr. 1, 
2014)).
---------------------------------------------------------------------------
    Late last year, Senator John McCain (R-AZ) went to Libya 
and explained the critical importance of training the Libyan 
Armed Forces. He said, ``I have met with the military here and 
we are confident that we have plans now for training and 
equipment for the Libyan military.''\16\ Senator McCain noted 
that this support was essential for helping the Libyan Armed 
Forces carry out their security and border management tasks--
tasks critical to beating the extremist forces in the region. 
But the current visa restriction that H.R. 5401 would codify 
into law and make permanent prevents us from providing much of 
this training and equipment.
---------------------------------------------------------------------------
    \16\Tom Wescott, Libya ``very important'' to the US--Senator 
McCain, Libya Herald, Dec. 4, 2013.
---------------------------------------------------------------------------
    While the present security situation in Libya may now 
counsel against lifting the regulatory ban on certain travel to 
the United States, codifying that ban and making it permanent 
will only make it more difficult in the future to respond to 
the legitimate security and foreign policy needs of the U.S. 
government.

  III. DEMOCRATIC AMENDMENTS WOULD HAVE RESPONDED TO THE NEEDS OF THE 
  DEFENSE DEPARTMENT AND PREVENTED CALCIFICATION OF U.S. IMMIGRATION 
                POLICY WITH RESPECT TO LIBYAN NATIONALS

    In an effort to improve the bill, Democratic Members on the 
Committee offered two amendments. The first amendment, offered 
by Rep. Zoe Lofgren (D-CA), would have created a single 
exception to the visa ban for persons who have been accepted 
into a program that has been approved by the Secretary of 
Homeland Security, in consultation with the Secretary of 
Defense. The amendment was designed to strike the right balance 
by advancing America's interests in helping to support the 
Libyan government in its effort to combat extremists in the 
region while also providing an additional level of scrutiny to 
the visa issuance process. The amendment was defeated on a 
party-line vote of 13-20.
    The second amendment, offered by Rep. Sheila Jackson Lee 
(D-TX), would have required the President, in consultation with 
the Secretaries of Defense, Energy, Homeland Security, and 
State, to submit a report to Congress within 2 years describing 
the effect of the statutory ban on domestic and foreign 
interests of the United States, including any effects related 
the national security. The amendment also would have sunset the 
statutory ban 3 years from the date of enactment. The amendment 
was offered in response to the Majority's argument that the 
tenuous security situation in Libya at the present time 
justifies a statutory ban of the sort contained in H.R. 5401. 
By requiring the President to produce a report to Congress 
within 2 years from the date of enactment and sunsetting the 
bill 1 year later, the amendment would have ensured that a 
future Congress could make an informed decision about whether 
to further extend the visa ban. The amendment was defeated on a 
party-line vote of 14-19.

                               CONCLUSION

    The debate around H.R. 5401 is not about whether Libyan 
nationals should be granted certain visas or allowed to remain 
in the United States in nonimmigrant status to pursue certain 
studies or training. There is already a regulation in place 
that prevents that from taking place. In fact, the Department 
of Homeland Security--after consulting with the Department of 
Defense, Department of State, and intelligence communities--
determined that now is not the time to rescind that regulation. 
In making that decision, Secretary Johnson considered whether 
the current regulatory ban serves America's strategic interests 
at home and abroad.
    In the event that the Secretary of Homeland Security in the 
future decides to rescind the regulation, our immigration 
system would still contain multiple layers of security that 
would subject visa applicants to numerous routine and enhanced 
background and security checks. This may mean that no Libyan 
national is granted a visa to come to the United States to 
study or train in aviation maintenance, flight operations, or 
nuclear science for a very long time. We do not object to such 
an outcome.
    Nevertheless, we do object to a permanent blanket ban on 
such visas for Libyans where our career defense and 
intelligence professionals believe such visas would serve our 
national interest. These are the officials who know the 
situation on the ground in Libya, understand our security 
threats, and appreciate our diplomatic priorities. We should 
not be enacting laws that would permanently override these 
judgments simply because it is politically expedient to do so.

                                   John Conyers, Jr.
                                   Zoe Lofgren.
                                   Sheila Jackson Lee.
                                   Henry C. ``Hank'' Johnson, Jr.
                                   Pedro R. Pierluisi.
                                   Judy Chu.
                                   Karen Bass.
                                   Cedric Richmond.
                                   David N. Cicilline.
```