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TERRORISM AND THE VISA WAIVER PROGRAM 

JOINT HEARING 

BEFORE THE

SUBCOMMITTEE ON NATIONAL SECURITY 

AND THE

SUBCOMMITTEE ON HEALTH CARE, BENEFITS, AND 

ADMINISTRATIVE RULES 

OF THE

COMMITTEE ON OVERSIGHT 

AND GOVERNMENT REFORM 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

DECEMBER 10, 2015 

Serial No. 114–145 

Printed for the use of the Committee on Oversight and Government Reform 

( 

Available via the World Wide Web: http://www.fdsys.gov 

http://www.house.gov/reform 


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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM 

JASON CHAFFETZ, Utah, Chairman 

JOHN L. MICA, Florida 

MICHAEL R. TURNER, Ohio 

JOHN J. DUNCAN, JR., Tennessee 

JIM JORDAN, Ohio 

TIM WALBERG, Michigan 

JUSTIN AMASH, Michigan 

PAUL A. GOSAR, Arizona 

SCOTT DESJARLAIS, Tennessee 

TREY GOWDY, South Carolina 

BLAKE FARENTHOLD, Texas 

CYNTHIA M. LUMMIS, Wyoming 

THOMAS MASSIE, Kentucky 

MARK MEADOWS, North Carolina 

RON DESANTIS, Florida 

MICK MULVANEY, South Carolina 

KEN BUCK, Colorado 

MARK WALKER, North Carolina 

ROD BLUM, Iowa 

JODY B. HICE, Georgia 

STEVE RUSSELL, Oklahoma 

EARL L. ‘‘BUDDY’’ CARTER, Georgia 

GLENN GROTHMAN, Wisconsin 

WILL HURD, Texas 

GARY J. PALMER, Alabama 

ELIJAH E. CUMMINGS, Maryland, Ranking 

Minority Member 

CAROLYN B. MALONEY, New York 

ELEANOR HOLMES NORTON, District of 

Columbia 

WM. LACY CLAY, Missouri 

STEPHEN F. LYNCH, Massachusetts 

JIM COOPER, Tennessee 

GERALD E. CONNOLLY, Virginia 

MATT CARTWRIGHT, Pennsylvania 

TAMMY DUCKWORTH, Illinois 

ROBIN L. KELLY, Illinois 

BRENDA L. LAWRENCE, Michigan 

TED LIEU, California 

BONNIE WATSON COLEMAN, New Jersey 

STACEY E. PLASKETT, Virgin Islands 

MARK DESAULNIER, California 

BRENDAN F. BOYLE, Pennsylvania 

PETER WELCH, Vermont 

MICHELLE LUJAN GRISHAM, New Mexico 

SEAN MCLAUGHLIN, Majority Staff Director 

DIMPLE SHAH, Deputy Counsel, National Security Subcommittee 

WILLIAM MARX, Clerk 

DAVID RAPALLO, Minority Staff Director 


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SUBCOMMITTEE ON NATIONAL SECURITY

RON DESANTIS, Florida, Chairman 

JOHN L. MICA, Florida 

JOHN J. DUNCAN, JR., Tennessee 

JODY B. HICE, Georgia 

STEVE RUSSELL, Oklahoma, Vice Chair 

WILL HURD, Texas 

STEPHEN F. LYNCH, Massachusetts, 

Ranking Member 

ROBIN KELLY, Illinois 

BRENDA L. LAWRENCE, Michigan 

TED LIEU, California 

SUBCOMMITTEE ON HEALTH CARE, BENEFITS AND ADMINISTRATIVE RULES

JIM JORDAN, Ohio, Chairman 

TIM WALBERG, Michigan 

SCOTT DESJARLAIS, Tennessee 

TREY GOWDY, South Carolina 

CYNTHIA M. LUMMIS, Wyoming 

MARK MEADOWS, North Carolina 

RON DESANTIS, Florida 

MICK MULVANEY, South Carolina, Vice 

Chair 

MARK WALKER, North Carolina 

JODY B, HICE, Georgia 

EARL L. ‘‘BUDDY’’ CARTER, Georgia 

MATT CARTWRIGHT, Pennsylvania, 

Ranking Member 

ELEANOR HOLMES NORTON, District of 

Columbia 

BONNIE WATSON COLEMAN, New Jersey 

MARK DESAULNIER, California 

BRENDAN F. BOYLE, Pennsylvania 

JIM COOPER, Tennessee 

MICHELLE LUJAN GRISHAM, New Mexico 

Vacancy 


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C O N T E N T S 

Page 

Hearing held on December 10, 2015 ...................................................................... 1 

WITNESSES 

Ms. Kelli Ann Burriesci, Deputy Assistant Secretary, Screening Coordination, 

Office of Policy, Department of Homeland Security 

Oral Statement ................................................................................................. 7 

Written Statement ............................................................................................ 10 

Ms. Janice Kephart, Director, Homeland Security Solutions, Morphotrak LLC 

Oral Statement ................................................................................................. 17 

Written Statement ............................................................................................ 19 

Mr. Brian Michael Jenkins, Senior Advisor and President, Rand Corporation 

Oral Statement ................................................................................................. 40 

Written Statement ............................................................................................ 42 

Mr. Ken Gude, Senior Fellow, National Security Team, Center for American 

Progress 

Oral Statement ................................................................................................. 59 

Written Statement ............................................................................................ 61 

APPENDIX 

March 6, 2015, GAO letter regarding Update on Firearm and Explosives 

Background Checks Involving Terrorist Watchlist Records, submitted by 

Ms. Lawrence ....................................................................................................... 116 


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TERRORISM AND THE VISA WAIVER 

PROGRAM 

Thursday, December 10, 2015 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON NATIONAL SECURITY, JOINT WITH THE

SUBCOMMITTEE ON HEALTH CARE, BENEFITS AND

ADMINISTRATIVE RULES, 

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM, 

Washington, D.C. 

The subcommittees met, pursuant to call, at 10:09 a.m., in Room 

2154, Rayburn House Office Building, Hon. Ron DeSantis [chairman of the Subcommittee on National Security] presiding. 

Present: Representatives DeSantis, Jordan, Russell, Mulvaney, 

Mica, Walberg, Hice, Gowdy, Meadows, Walker, Carter, Chaffetz, 

Lynch, Cartwright, Norton, Lawrence, Lieu, Watson Coleman, 

DeSaulnier, Cooper, Lujan Grisham, and Cummings. 

Mr. DESANTIS. This Subcommittee on National Security and the 

Subcommittee on Health Care, Benefits, and Administrative Rules 

will come to order. 

Without objection, the chair is authorized to declare a recess at 

any time. 

The United States, our Western allies, and, indeed, the civilized 

world are facing a global jihad that is dedicated to the destruction 

of our way of life. While certain terrorist groups, such as ISIS, receive understandable attention, the global jihadist movement is not 

limited to members of ISIS. Indeed, the terrorists who massacred 

13 Americans in California were dedicated to jihad before ISIS 

even rose to prominence. 

To protect the American people, terrorists cannot be allowed to 

gain access to the United States. To gain entry into the United 

States, citizens of most countries must obtain visas issued at overseas embassies and consulates by the State Department following 

an in-person interview with the Department of State consular officer. An exception to this rule is the Visa Waiver Program. Established in 1986, the program allows foreign nationals of 38 countries 

to enter the United States as temporary, non-immigrant visitors for 

up to 90 days without having to obtain a visa or undergo an inperson interview at a U.S. consulate. 

The terrorist attacks in Paris on November 13 demonstrated that 

the Visa Waiver Program represents a potential vulnerability for 

our country. Those terrorists killed nearly 130 people and caused 

over 350 injuries. At least five of the attackers were French nationals, two of whom were living in Belgium, and one was a Belgium 


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national. Nationals of both France and Belgium are able to enter 

the United States under the Visa Waiver Program. 

Accordingly, at least six of the Paris attackers could have attempted to enter this country under the program. The Belgium 

neighborhood of Molenbeek, for example, is notorious for being a 

hotbed of Islamic jihadists. Known as jihad central, Molenbeek is 

a hellhole that is filled with Belgian national Islamic radicals who 

qualify to travel to the U.S. without a visa under the Visa Waiver 

Program. 

And, of course, many Islamic jihadists in places such as Syria are 

actually Western passport holders who could then come to this 

country with those Western passports after fighting jihad in Syria 

and Iraq. This exposes the American people to the possibility that 

these militants, after receiving training and undergoing further 

radicalization in the hotbed of the jihad, could exploit the Visa 

Waiver Program to enter our country. 

With this in mind, the U.S. must ensure that all appropriate 

safeguards are in place to ensure that the program cannot be exploited. A properly functioning biometric exit system is one of those 

safeguards. Biometric exit and overstay reporting was required as 

part of the Visa Waiver Permanent Program Act in 2007. Despite 

this, the U.S. does not have an exit system at our air, sea, and land 

ports of entry to track overstays as required as part of the Visa 

Waiver Program. 

In 2011, the former Commissioners of the 9/11 Commission concluded, quote, ‘‘The Department of Homeland Security properly 

supported by the Congress should complete as quickly as possible 

a biometric entry-exit screening system.’’ As important as it is to 

know when foreign nationals arrive, it is also important to know 

when they leave. Full deployment of the biometric exit should be 

a high priority. Such a capability would have assisted law enforcement and intelligence officials in August and September of 2001 in 

conducting a search for two of the 9/11 hijackers that were in the 

United States on expired visas. 

Instead of a biometric exit system, DHS has moved to implement 

a biographic exit system, despite the fact that former DHS Secretary Janet Napolitano told the GAO that she has no confidence 

in the current system. Even if a biometric exit system were implemented tomorrow, it is doubtful, though, that the administration 

would take the necessary action against the vast majority of visa 

violators. The Obama administration has circumvented duly-enacted immigration laws through memoranda and executive action. 

Under current law, overstaying a visa or violating its terms is sufficient to render a foreign national deportable. But now, pursuant to 

the administration’s so-called priorities, only aliens who are found 

to have significantly abused the visa or Visa Waiver Programs are 

deportable. All too often, however, such offenders are only found 

after they have committed crimes in this country. The administration has taken steps to water down the terrorism bars that render 

aliens inadmissible or deportable by broadening the exemption authorities and redefining what constitutes material support. 

Finally, although the government may argue that even aliens entering under the Visa Waiver Program are subject to some level of 

background check, more stringent checks than the Visa Waiver 


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Program applicants are subject to have their limitations. For example, they failed to prevent Tashfeen Malik, who, along with her 

husband, Syed Farook, killed 14 people in San Bernardino, California, last week before she entered the United States on a fiance(e) visa in July 2014. And this was supposed to be a rigorous 

examination. 

This is not to say that Congress should attempt to protect the 

American people—this is to say that Congress should attempt to 

protect American people from those who would come here to do us 

harm. In fact, the House has just passed legislation to address concerns related to the exploitation of both our refugee admission process and the Visa Waiver Program. We will continue to review other 

immigration vulnerabilities that impact our security. Today, as the 

House has passed the visa waiver legislation, we assess the mechanisms in place within the Visa Waiver Program that protect our 

national security and help identify returning foreign fighters and 

identify further steps that can be made to strengthen the Visa 

Waiver Program. 

I thank our witnesses for their testimony today and look forward 

to examining issues related to the impact of terrorism on the Visa 

Waiver Program and potential improvements to the program. 

And, with that, I yield to the ranking member, Mr. Lynch. 

Mr. LYNCH. Thank you, Mr. Chairman. 

I would also like to thank the witnesses for your willingness to 

appear before this committee and help us with our work. As recently noted by William McCants of the Brookings Institution and 

author of ‘‘The ISIS Apocalypse,’’ the horrific terrorist attacks in 

Paris on November 13 evidenced a marked shift in the strategy of 

the Islamic State, also known as Daesh. By perpetrating a series 

of centrally planned and coordinated terrorist attacks against civilian targets in the West, the Islamic State has crossed some kind 

of Rubicon in the words of Mr. McCants and definitely shifted in 

their thinking about targeting their enemies. 

This shift in strategy is even more concerning given the continued terrorist threat posed by foreign fighters returning from Iraq 

and Syria. According to the bipartisan report on foreign fighters released by the House Homeland Security Committee in September 

of this year, approximately 10 percent of so-called returnees seek 

to engage in terrorist activity and recruitment upon their return 

from conflict zones. This statistic took form in the United States in 

2015 with the arrest of several American returnees on terrorist-related charges. These dangers are exponentially greater given the 

Islamic State’s widespread use of social media as a global recruitment and radicalization tool. 

The Islamic State has more than demonstrated its savagery and 

willingness to expand its terrorist activities beyond its controlled 

territories in Iraq and Syria. And it is imperative that we continue 

to work together and take effective steps to enhance our national 

security against the threat of a homegrown terrorist attack. 

Of course, just last week, we witnessed the tragic mass shooting 

in San Bernardino, California, the most devastating terrorist attack on U.S. soil since September 11 and one that the Islamic State 

has since praised in its daily online broadcast. So while we offer 

our prayers for the victims and their families, we also must take 


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reasonable measures promptly to prevent this from happening 

again. 

One area where we do have significant bipartisan agreement is 

the subject of today’s hearing, the Visa Waiver Program, administered by the Department of Homeland Security in consultation with 

the State Department. Beginning in 1986, back in 1986, during the 

Reagan administration, the Visa Waiver Program was allowed— 

has allowed foreign citizens from specified countries to enter the 

United States for the purpose of business or tourism for up to 90 

days without a visa. The program reflects a security partnership 

between the U.S. and 38 participating countries. 

By establishing minimum standards for acceptable travel, including machine-readable passport use, information sharing on lost or 

stolen passports via INTERPOL, the Visa Waiver Program has also 

served to promote commerce and tourism in the United States. According to the Department of Homeland Security, in fiscal year 

2014, the U.S. accepted more than 20 million Visa Waiver Program 

travelers, who spent an estimated $84 billion on goods and services. 

However, despite the economic benefits and security standards 

that stem from the Visa Waiver Program, its sheer size, traveler 

volume, and the continued threat of terrorist activity worldwide demand that we make every effort to strengthen that program. As reported by the Government Accountability Office in 2012, approximately 364,000 individuals traveled under the program in 2010 

without verified approval from the program Electronic System for 

Travel Authorization. I would also note that the attacks on Paris 

involved the participation of several individuals with French and 

Belgian citizenship, and that Belgian federal prosecutors have indicated that coordination of the Paris plot may have extended to Budapest, Hungary. France, Belgium, and Hungary are all Visa Waiver Program countries. 

The Department of Homeland Security has taken steps to enhance Visa Waiver Program security since November of 2014. Most 

recently, this month, the Obama administration announced that 

the Department of Homeland Security will modify the program’s 

electronic travel authorization database to collect applicant information regarding past travel to conflict zones or terrorist safehaven countries. 

However, the administration itself has noted that more robust 

program security measures will require congressional authorization 

and approval. To this end, the House passed H.R. 158, the Visa 

Waiver Program Improvement Act, by a 407-to-19 vote on Tuesday. 

This bipartisan legislation, which I cosponsored, seeks to reform 

the Visa Waiver Program through stringent security and oversight 

requirements. Among various program enhancements, the bill 

would prohibit individuals who have traveled to Iraq, Syria, Iran 

and other specified nations since March 1 of 2011 from entering the 

U.S., unless they first undergo biometric screening and interviews 

by U.S. officials and obtain a regular travel visa. The bill would 

also require the Department of Homeland Security to remove a 

country from the program if it does not fully vet or share information on citizens traveling to the U.S. who could pose a threat to national security. 


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Beginning of April 1, 2016, H.R. 158 would further mandate that 

all passports from Visa Waiver Program countries be machinereadable, electronic passports that are fraud-resistant and contain 

comprehensive biographic and biometric information as determined 

by the Department of Homeland Security. We must continue to 

work in a bipartisan manner to ensure that these and other program reforms become law. 

Mr. Chairman, I look forward to the further discussion of this 

Visa Waiver Program with our witnesses as we examine any additional security measures proposed by Congress and the administration to enhance program security. 

I want to thank you. And I yield back the balance of my time. 

Mr. DESANTIS. The gentleman yields back. 

The chair now recognizes Mr. Jordan, the chairman of the Health 

Care, Benefits, and Administrative Rules Subcommittee. 

Mr. JORDAN. I thank the chairman. And I would just thank you 

for putting together this hearing today and would yield back. I just 

want to get to the witnesses’ testimony and get on with the hearing. So thank you so much for this important hearing. 

Mr. DESANTIS. Well, it is one of many things, I think, that, if you 

look, we have really three facets. One is dealing with terrorists 

overseas who are creating caliphate and have territory that they 

are in charge of. They can recruit. They can train. They can obviously cause a lot of damage there. 

The second part is preventing people like that from coming into 

our country. This is just one part of that. I mean, the fact that 

Tashfeen Malik received a visa, she should not have been allowed 

into this country. And we have to figure out a way to deal with 

that. 

And the third, which we will probably be dealing with on this 

committee at some point, is how to deal with people who are 

radicalized here at home. 

With that, I will yield to Mr. Cartwright for 5 minutes. 

Mr. CARTWRIGHT. Thank you, Mr. Chairman. 

And I also want to thank our witnesses for being here today. I 

think this is an important topic. We ought to engage in a bipartisan dry-eyed review of the situation. 

And I want to start by clearing up a few misconceptions that 

some people may have about the Visa Waiver Program. The Visa 

Waiver Program permits citizens of 38 countries in Western Europe and other nations to travel in the U.S. without first obtaining 

a visa. But some have described the Visa Waiver Program as visafree travel. And that is not quite correct. For example, a German 

citizen cannot grab their passport, arrive at a major airport in Germany, buy a ticket, and hop a flight to Washington, D.C. It doesn’t 

work that way. And we have an illustration that actually the Heritage Foundation created to show the extensive counterterrorism 

screening that every prospective Visa Waiver Program traveler has 

to undergo before successfully entering the U.S. You can see it up 

on the screen. You can see it is a very simple process. 

You can follow along as I talk about it. A perspective Visa Waiver Program traveler has to go through a vetting process by the Department of Homeland Security. Travelers are required to complete 

an online security screening form prior to departing their country. 


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The screening form includes biographic information, criminal background information, and any previous visa revocations. This information is continuously vetted against U.S. law enforcement and intelligence agency watch lists to determine if the traveler poses a 

risk. DHS also conducts extensive preflight screenings for air travelers, and it includes checking passenger airline reservation data 

against terrorist watch lists. In addition, DHS conducts pre-arrival 

screenings to vet passenger manifest data indicating who is on 

board against, again, the terrorist watch list. Once a Visa Waiver 

Program traveler arrives in the U.S., he or she must undergo an 

additional level of screening in the form of an in-person inspection 

at the port of entry by CBP, Customs and Border Patrol. The first 

inspection includes a validation of travel and identification documents and the collection of biometric data, such as fingerprints and 

a photograph for first-time Visa Waiver Program travelers. Following this primary inspection, the VWP traveler must then submit 

to a thorough inspection of their physical self, their bags, their documents, and their electronics. 

No VWP traveler can be admitted to the U.S. without completing 

all security checks. And according to DHS, since 2008, almost 6,000 

travelers have been denied travel to the U.S. under this program 

because of national security hits to one of the terror watch lists. In 

addition, nearly 166,000 more have been denied traveling here for 

using lost or stolen passports. So, as far as we know, terrorists are 

always looking for new ways to skirt antiterror measures. And that 

makes sense. That is why we have to be ready to respond, to alter 

measure as new threats arise. That is why I commend the administration for taking steps to close security gaps that we find in the 

Visa Waiver Program. 

On Sunday night, the President called on us here in Congress to 

provide the legal authority for the administration to implement 

these changes as soon as possible. And just 2 days ago, the House 

voted on and passed a bipartisan bill to tighten restrictions and enhance security under this Visa Waiver Program. 

Now, in light of the terrorist attacks in Paris and San 

Bernardino, the administration and Congress should evaluate what 

additional measures are needed to tighten security while still preserving American values of inclusiveness and nondiscrimination. It 

is crucial we don’t make rash policy decisions without thinking 

about the consequences and the implications and certainly the 

prices of our actions. 

I caution my fellow Members of Congress to avoid knee-jerk reactions based on fear and focus on a more measured, comprehensive 

approach to national security. That approach should include addressing terrorist radicalization and recruitment; the Islamic 

State’s operation capacity and community resilience; and, an often 

overlooked issue, combatting homegrown terrorist threats posed by 

our own sovereign citizens, militias, and other antigovernment terrorists. We also ought to find ways to unite with other countries 

to defeat ISIS. 

Importantly, this approach should include Congress passing legislation that will finally close the terrorist gun loophole and prevent known or suspected terrorists from purchasing firearms or explosives at any gun shop in America. Congress can play a key role 


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in defeating terrorist groups like ISIS and protecting the American 

people. And that is why I am happy we are having this hearing 

today. 

And I yield back, Mr. Chairman. 

Mr. DESANTIS. Thank you. 

I will hold the record open for 5 legislative days for any members 

who would like to submit a written statement. 

We will now recognize our witnesses. I am pleased to welcome 

Ms. Kelli Ann Burriesci, Deputy Assistant Secretary for Screening 

Coordination at the Office of Policy, Department of Homeland Security; Ms. Janet Kephart, director of Homeland Security Solutions at 

MorphoTrak, LLC; Mr. Brian Michael Jenkins, senior adviser and 

president of the RAND Corporation; and Mr. Ken Gude, senior fellow on the National Security Team at the Center for American 

Progress. 

Welcome all. 

Pursuant to committee rules, all witnesses will be sworn in before they testify. If you would please rise and raise your right 

hand. Do you solemnly swear the testimony you are about to give 

will be the truth, the whole truth, and nothing but the truth, so 

help you God? 

All right. Thank you. Please be seated. 

All witnesses answered in the affirmative. 

In order to allow time for discussion, please limit your oral testimony to 5 minutes. Your entire written statement will be made 

part of the record. 

Ms. Burriesci, you are up for 5 minutes. 

WITNESS STATEMENTS 

STATEMENT OF KELLI ANN BURRIESCI 

Ms. BURRIESCI. Thank you, Chairman DeSantis, Chairman Jordan, Ranking Member Lynch, Ranking Member Cartwright, and 

distinguished members of the subcommittee. Thank you for the opportunity to testify on behalf of DHS on the U.S. Visa Waiver Program. 

The Visa Waiver Program permits citizens of 38 countries to 

travel to the United States for business or tourism stays for up to 

90 days without a visa. That does not mean travelers are able to 

board a plane with no security checks. ‘‘Waiver’’ does not mean 

waiving security. There are a host of checks conducted as a result 

of each applicant being required to have an approved Electronic 

System for Travel Authorization, or ESTA. In addition, countries 

are required to meet security standards. And they are reviewed 

every 2 years to ensure these standards are maintained. DHS has 

and will continue to adapt the VWP to meet the challenges of the 

modern threat environment. 

Let me walk through three security pillars that are required of 

VWP countries but not of countries whose citizens must obtain 

visas. First, countries are required to meet multiple statutory and 

policy requirements. These include, among others, entering into 

agreements with the United States to share information about 

known and suspected terrorists, reporting to the Stolen and Lost 

Travel Documents database, and issuing new passports. As a result 


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of the information-sharing arrangements, VWP countries have provided information on 9,000 known or suspected terrorists to the 

United States. And VWP countries are responsible for nearly 70 

percent of the records in INTERPOL’s Stolen and Lost Travel Documents database. 

The second pillar is screening of the travelers. All travelers coming to the United States are screened, regardless of whether they 

were an ESTA or a visa. ESTA applicants are vetted against the 

same biographic databases as visa travelers. This includes DHS 

holdings, the FBI’s Terrorist Screening Database, State Department’s CLASS system, and INTERPOL databases. 

ESTA applications are also vetted by the National Counterterrorism Center. This screening occurs before travelers depart for the 

United States. DHS also recurrently vets ESTA data on a daily 

basis, which means that even though an applicant has an approved 

authorization for travel, an ESTA is continuously reviewed 

throughout its validity period for new derogatory information. If 

someone is a national security concern, their ESTA application is 

not approved. Since ESTA’s inception, CBP has denied over 6,000 

ESTA applications on national security grounds. And, of course, 

DHS is vetting all travelers before they depart for the United 

States and upon arrival at a port of entry. 

The third security pillar is the statutory requirement to conduct 

an assessment at least every 2 years on each VWP country to ensure security standards are maintained. DHS conducts 19 VWP reviews annually, each review supplemented by an intelligence assessment. Following the conclusion of every review, DHS, in consultation with the State Department, provides a report to Congress 

regarding the results and designation determination. During our 

review, which takes approximately 6 to 9 months, DHS assesses 

each country’s counterterrorism, law enforcement, immigration enforcement, passport security, and border management capabilities. 

We collect information from the government of the VWP country, 

the U.S. diplomatic missions in that country, the Department of 

State, Justice, and the intelligence community. Many reviews also 

include thorough inspections of airports, seaports, land borders, 

and passport issuance facilities. No other program enables the U.S. 

Government to conduct such consequential assessments of foreign 

partner security standards and operations. 

Those three pillars are important. But we cannot be successful 

if we don’t adapt to the evolving threat environment. In November 

2014, Secretary Johnson introduced new data fields on the ESTA 

application. These new fields have enabled CBP and NCTC to identify a large number of applicants with potential connections to terrorism whose connections would not have otherwise been known. 

Per the November 30 White House announcement, we will make 

additional improvements to the application that will grant us 

greater insight into prospective VWP travelers who have been to 

Syria, Iraq, other conflict zones. 

In August 2015, the Secretary added further security measures. 

These included full implementation of the required information 

sharing arrangements, collection and analysis of travel data, vetting against INTERPOL’s Stolen and Lost Travel Documents database, and making sure all VWP travelers use secure e-Passports 


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when traveling to the United States. The e-Passport measure will 

be implemented very shortly. CBP is already notifying ESTA applicants that they may not be able to board a plane to the United 

States without an e-Passport. 

The recent tragic events in Paris underscore the need for the 

United States and its partners to swiftly implement these VWP enhancements. In conclusion, and keeping in mind the VWP program 

requires countries to meet strong security standards, vets all VWP 

travelers against the same databases as a visa and on a recurrent 

basis, and reviews each country to ensure standards are maintained, the VWP provides significant security benefits to the 

United States and its citizens. 

I look forward to responding to your questions. And I’ve submitted written testimony for the record. Thank you. 

[Prepared statement of Ms. Burriesci follows:] 


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TESTIMONY 

OF 

Kelli Ann Burriesci 

Deputy Assistant Secretary for Screening Coordination 

Office of Policy 

U.S. DEPARTMENT OF HOMELAND SECURITY 

BEFORE 

THE HOUSE COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM: 

SUBCOMMITTEE ON NATIONAL SECURITY 

ON 

"TERRORISM AND THE VISA WAIVER PROGRAM" 

DECEMBER 10,2015 
11 


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Introduction 

Chairman DeSantis, Chairman Jordan, Ranking Member Lynch, Ranking Member 

Cartwright, and distinguished Members of the Subcommittees, thank you for the 

opportunity to testify on behalf of the Department of Homeland Security (DHS) about the 

security benefits of the U.S. Visa Waiver Program (VWP). 

The VWP pe1mits citizens of 38 countries 1 to travel to the United States for business or 

tourism for stays of up to 90 days without a visa. That docs not mean travelers are able to 

board a plane with no security checks. ''Waiver .. docs not mean waiving security. There 

are a host of security checks conducted on each VWP traveler, prior to travel to the 

United States, as a result of each applicant being required to have an approved Electronic 

System for Travel Authorization (or EST A). To be eligible for the Visa Waiver Program, 

each country must first meet statutory requirements, and then maintain security standards 

throughout its membership. Additionally, DHS, with interagency partners, conducts 

robust, national-level risk assessments- at least every two years- that assess the impact 

of each program country's participation in the VWP on U.S. national security, law 

enforcement, and immigration enforcement interests. Far from being a security 

vulnerability, the VWP provides significant security benefits to the United States and its 

citizens. I look forward to going into more detail about these strong security 

requirements. 

From Travel Program to Security Partnership 

When Congress first authorized the VWP, the program was intended to facilitate low-risk 

travel to the United States, boost international trade and cultural links, and promote more 

efficient use of consular resources. Recognizing that global security threats have evolved 

dramatically since the 1980s, DHS has adapted the VWP to meet the challenges of the 

modem threat environment. These efforts have been most successful when working in 

concert with our partners in Congress. For instance, DHS collaborated with Congress to 

develop and implement the provisions of the Secure Trm•el and Counterterrorism 

Partnership Act ()f 2007, which was included as part of the Implementing 

Recommendations of the 9111 Commission Act of 2007 (9111 Act). This legislation 

transformed the VWP from a program that evaluated security threats on a country-bycountry basis to a program with the added capability to screen individual travelers for 

potential threats that they may pose to the security of the United States and its citizens. It 

also requires countries seeking designation in the VWP to, among other measures: 

1 With respect to all references to "country" or "countries" in this document, it should be noted that the 

Taiwan Relations Act of 1979, Pub. L. No. 96-8, Section 4(b)(l ), provides that "[w]heneverthe laws of the 

United States refer or relate to foreign countries, nations, states, governments, or similar entities, such 

terms shall include and such laws shall apply with respect to Taiwan." 22 U.S. C. § 3303(b){ I). 

Accordingly. all references to ·'country" or "countries" in the Visa Waiver Program authorizing legislation, 

Section 217 of the Immigration and Nationality Act, 8 U.S.C. 1187, are read to include Taiwan. This is 

consistent with the United States' one-China policy, under which the United States has maintained 

unofficial relations with Taiwan since 1979. 
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• Enter into agreements with the United States to share infom1ation regarding whether 

citizens and nationals of that country traveling to the United States represent a threat 

to the security or safety of the United States or its citizens; 

• Report lost and stolen passport infonnation via INTERPOL or other means 

designated by the Secretary of Homeland Security; and 

• Be subject to an independent assessment by the Director of National Intelligence 

(DNl) that includes a review of all current, credible te1rorist threats of the subject 

country; an evaluation of the subject country's countertenorism efforts; an evaluation 

as to the extent of the country's sharing ofinfom1ation beneficial to suppressing 

ten·01ist movements. financing. or actions; and, an assessment of the risks associated 

with including the subject country in the program and recommendations to mitigate 

the risks identified therein. The independent DNl assessments supplement 

comprehensive assessments that DHS conducts pursuant to existing statute. 

All cu~ent VWP countries meet these requirements. In fact, VWP designation is so 

prized that many countries that are not in the VWP complete program requirements in the 

hope of one day joining. Consequently, the VWP often provides security benefits to the 

United States without extending travel facilitation benefits to foreign countries. 

Since the introduction of the 9/11 Act, DHS has made fmiher improvements to the 

security of the VWP to address evolving threats. In August 2008, responding to a 

provision of the 9/11 Act, DHS introduced the Electronic System tor Travel 

Authorization (ESTA), an online vetting application that DHS requires all VWP travelers 

to complete prior to traveling to the United States by air or sea. EST A applicants must 

provide extensive biographic infonnation, including their name, date of birth, place of 

birth, current residence, additional countries of citizenship and passport information, 

employment infmmation, travel itinerary, and U.S. point of contact, among others. This 

information is vetted against DHS, Department of State, Federal Bureau of Investigation 

(FBI) and Intelligence Community databases to dete1mine if prospective VWP travelers 

pose a national security or law enforcement threat to the United States. If a prospective 

VWP traveler does not submit this information or is denied travel authorization. he may 

not board a plane for the United States. 

More recently, we have taken measures to ensure that individuals of countertenorism 

concern, including foreign terrorist fighters who have traveled to Syria, Iraq, and other 

conflict zones, are not able to travel to the United States via the VWP or any other means. 

In November 2014, for example, Secretary Johnson introduced enhanced data fields to 

the ESTA application. The enhanced ESTA data fields have enabled U.S. Customs and 

Border Protection (CBP) and National Countertenorism Center to identify a larger 

number of applicants with potential cmmcctions to terrmism whose connections would 

not otherwise have been known. 

In August 2015, DHS introduced a number of additional security enhancements to the 

VWP, including enhanced traveler vetting, infonnation sharing, and other security 

requirements for VWP countries to further address any potential threat 

2 
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Specifically, the August 2015 VWP enhancements require program countries to: 

~ Implement the Homeland Security Presidential Directive 6 (HSPD-6) arrangements 

and Preventing and Combating Serious Crime (PCSC) agreements by sharing of 

terrorist and criminal infom1ation and utilizing such infonnation provided by the 

United States; 

1-- Collect and analyze travel data (Advance Passenger Infonnation/Passenger Nan1e 

Records), consistent with UN Security Council Resolution 2178 in order to identify 

high-risk travelers before they board inbound planes and thereby keep such 

travelers as far as possible from U.S. shores; 

1-- Usc the INTERPOL Lost and Stolen Passport Database to screen travelers crossing 

the VWP country's external borders to prevent the fraudulent use of passports by 

ten·01ists and serious criminals; 

r Report Foreign Fighters to tnultilateral security organizations such as INTERPOL 

or EUROPOL to enhance our collective efforts to identify and dismpt terrorist 

travel; and 

1-- Cooperate with the United States in the screening of refugees and asylum seekers to 

ensure that ten-orists and criminals cannot exploit our system. 

In addition, the security enhancements require all VWP travelers to use secure, electronic 

passports with biometric identifiers when traveling to the United States2 This measure, 

which will be implemented in early 2016, will help to prevent passport fraud and better 

enable CBP officers to verify the identity ofVWP travelers. CBP is already notifying 

ESTA applicants they may not be able to board a plane to the United States without an 

electronic passport. 

The recent, tragic attacks in Paris underscore the need for the United States and its 

partners to swiftly implement these VWP enhancements. The Department of State 

reiterated this need to all VWP countries via demarche cable last week. On November 

30, the White House announced additional enhancements to the program, to include, but 

not limited to DHS introducing further improvements to the EST A application that will 

grant us even greater insight into prospective VWP travelers who have been to Syria, 

Iraq, and other conflict zones; identifying possible pilot programs to assess the collection 

and use of biometric infonnation to effectively improve the security of the VWP; and 

working with Congress to seek authority to increase the Advanced Passenger 

Information System (APIS) fines from $5,000 to $50,000 for air can-iers that fail to verify 

a traveler's passport data. 

DHS and the Department of State will continue to work with VWP countries to rapidly 

implement all new program requirements, thereby strengthening U.S. security and the 

security of our partners. These enhancements demonstrate the degree to which DHS 

continuously assesses and is willing to take measures to strengthen the security of the 

VWP. 

' Cunently, citizens oft he 27 countries designated into the V\VP before 2007 may use a machine-readable 

non-biometric passport if that passport was issued before October 26, 2006 and is still valid. 

3 
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National-Level Risk Assessments 

After designation in the VWP, countries must maintain high and consistent security 

standards. DHS, in consultation with the Department of State, is statutorily required to 

conduct reviews of the effects of each VWP country's continued designation in the 

program on U.S. national security, law enforcement, and immigration enforcement 

interests at least once every two years. During six- to nine-month reviews, DHS assesses 

each VWP country's countet1en·orism, law enforcement, itmnigration enforcement, 

passport security, and border management capabilities. We collect information from the 

government of the VWP country under review, the U.S. Diplomatic Missions in that 

country, the Departments of State and Justice, the U.S. Intelligence Community, and 

other sources. Many reviews also include rigorous and thorough DHS inspections of 

airports, seaports, land borders, and passport production and issuance facilities in VWP 

countries. These reviews are at minimum conducted by personnel from DHS 

Headquarters- both Policy and Intelligence Analysts as well as CBP officers, 

Transpm1ation Security Administration experts, and State Department officials. No other 

program enables the U.S. Government to conduct such broad and consequential 

assessments of foreign partners' security standards and operations. 

DHS conducts 19 VWP reviews annually. Each VWP review is supplemented by an 

independent intelligence assessment produced by the DHS Office of Intelligence and 

Analysis on behalf of the DNI. Following the conclusion of every review, DHS, in 

consultation with the Department of State, provides a report to Congress regarding the 

assessment results and designation detennination. 

In addition to the biennial review process, DHS continuously monitors all VWP countries 

to ensure that their continued designation in the program will not adversely affect the 

security of the United States. Continuous monitoring enables DHS to react rapidly to 

evolving security threats. The Secretary of Homeland Security has statutory authority to 

terminate or suspend a country's designation in the VWP if there is a credible threat 

originating from that country which poses an imminent danger to the United States or its 

citizens, or there is an emergency that could threaten the law enforcement or security 

interests of the United States. 

The biennial review and continuous monitoring processes enable DHS not only to 

terminate the participation of countries in the VWP, but also to assist those countries in 

addressing security vulnerabilities. DHS has leveraged the VWP to improve foreign 

partners' counterterrorism capabilities, traveler screening, infonnation sharing, passport 

issuance policies, and lost and stolen passport reporting processes. These actions have 

enhanced the mutual security of the United States and pm1ner nations. 

Comprehensive Traveler Screening 

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In addition to national-level risk assessments, DHS conducts targeted screening of all 

VWP travelers at multiple points throughout the travel continuum. To be clear, all 

travelers coming to the United States are vetted- regardless of a visa or an ESTA. 

All prospective VWP travelers must first obtain pre-travel authorization via CBP's ESTA 

application prior to boarding a plane or vessel bound for the United States. EST A 

applicants are vetted against the same biographic databases as visa travelers. DHS 

screens all EST A application information immediately and automatically against DHS 

TECS3 records. the FBI's Terrorist Screening Database (TSDB). and State Department's 

Consular Lookout and Suppmt System (CLASS), as well as international databases, such 

as INTERPOL· Stolen and Lost Travel Document database. All EST A applications are 

also vetted by the National Counterterrorism Center. This comprehensive vetting 

ensures that travel authorizations are not issued to prospective VWP travelers who pose a 

threat to U.S. national security. Any would-be traveler whose ESTA application is 

denied is referred to a U.S. embassy or consulate, where he or she would be interviewed 

by a consular officer and undergo biometric screening while applying for a visa. 

I reiterate that this screening occurs before prospective VWP travelers may board a plane 

or vessel bound for the United States. Furthermore, DHS recurrently vets ESTA data on 

a daily basis, which means that even though an applicant has an initially approved 

authorization for travel, the authorization is continuously reviewed throughout its validity 

period for new derogatory information and is subject to further review and subsequent 

denial if necessary. This includes recurrent vetting against the Ten·orist Screening 

Database (also known as, the "Terrorist WatchlisC). CBP officers adjudicate every 

EST A application that raises countertenorism or admissibility concerns. 

In addition to ESTA screening, U.S. law requires all private and commercial air carriers 

operating routes to, from, or through the United States to provide Advance Passenger 

Inf01mation (API) and Passenger Name Records (PNR) data to CBP. These data, which 

include travelers' biographic and travel reservation information. are screened against U.S. 

and intemationallaw enforcement and counterten·orism databases to identify high-risk 

individuals before they depart for the United States and when they travel by air within the 

United States. All VWP travelers are subject to this screening. 

VWP travelers are subject to additional layers of screening and inspection upon anival at 

U.S. ports of entry. CBP officers collect biometric information from all VWP travelers 

and screen it against U.S. law enforcement and counterterrorism databases. Moreover, 

CBP officers screen the biographic information from VWP travelers' passports against 

additional U.S. holdings. No VWP traveler who fails to clear these checks will be 

admitted to the United States. 

Since EST A's inception, CBP has denied thousands of EST A applications for national 

security reasons as a result of vetting against the Terrorist Screening Database. During 

1 TECS is an automated enforcement and inspections system that provides a large database of information 

for law enforcement and border inspection purposes. 

5 
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the same period of time, CBP denied more than 165,000 ESTA applications submitted by 

individuals with passp011s reported as lost or stolen. This diligence continues. Since the 

beginning of the eun-ent fiscal year, October 1, 2015, CBP has denied more than 280 

EST A applications for national security reasons. 

DHS also leverages its pminerships with the National Counterten-orism Center and the 

FBI -including harnessing the capabilities housed in the Ten-orist Screening Center- to 

augment the screening of VWP travelers throughout the travel continuum. In supp011 of 

this cff011, DHS seeks to expand Preclearance operations to ten additional foreign 

airports, most of which are located in VWP countries. The Preclearance Program enables 

CBP officers at overseas locations to inspect travelers-including those traveling under 

the VWP-before they board planes bound for the United States. This ensures that highrisk individuals m·c identified long before they reach our shores. 

Mutually-Reinforcing Security Criteria 

VWP traveler screening is reinforced by the statutory requirement that VWP countries 

regularly share infonnation with the United States pe11aining to known and suspected 

ten-orists, serious criminals, and lost and stolen passports. As a result ofVWP 

information sharing arrangements, VWP countries have provided the United States with 

identity info1mation about thousands of known or suspected ten-orists. VWP infonnation 

sharing augments existing information sharing between the United States and VWP 

countries· security services. Moreover, VWP countries have provided nearly 70 percent 

of the records in INTERPOL's Stolen and Lost Travel Document Database, which DHS 

utilizes in its daily screening of EST A applications and API/PNR data to prevent the 

fraudulent use ofpasspmis by ten-orists and serious criminals.4 The ongoing exchange of 

criminal and ten·orist information is integral to the traveler screening that we conduct. It 

is questionable whether the United States would receive such extensive law enforcement 

and counterten-orism inf01mation from foreign partners without the VWP. 

Conclusion 

In summary, the VWP is a rigorous, multi-layered risk assessment progrm11 that promotes 

secure travel to the United States. VWP countries are required to meet stringent security 

standards and to share extensive counterten-orism and law enforcement infonnation with 

the United States. VWP travelers arc subject to rigorous screening before they depart for 

the United States and throughout the travel continuum. DHS continues to strengthen its 

effmis to ensure that the VWP provides for the security and prosperity of the American 

people. We look forward to partnering with Congress as we undertake this endeavor. 

Chaim1an DeSantis, Chairman Jordan, Ranking Member Lynch, Ranking Member 

Cartwright, and distinguished Members of the Subcommittees, thank you for your 

consideration of this important topic. I look forward to responding to your questions. 

4 INTERPOL ASF-SL TD Statistics, October 11, 2015 

6 
17 

Mr. DESANTIS. Thank you. 

The chair now recognizes Ms. Kephart for 5 minutes. 

STATEMENT OF JANICE KEPHART 

Ms. KEPHART. Good morning. 

Chairmen DeSantis and Jordan, Ranking Members Lynch and 

Cartwright, as well as esteemed members of this committee, thank 

you for the opportunity to testify on terrorism and the Visa Waiver 

Program. 

I come before you today in my personal capacity as a former 9/ 

11 Commission border counsel to augment the good work conducted 

by the White House, DHS, and Congress since the tragic November 

13 terrorist attacks and, before that, the 14 years since 9/11. Enclosed in my written testimony you will find 18 recommendations 

intended to address the terrorist traveler threat from radicalized 

individuals in Europe who seek to abuse the visa-free benefits of 

the VWP. 

These recommendations include, first, how to secure the overall 

Visa Waiver Program; second, how to improve individual vetting of 

these travelers; and, third, how to further secure our ports of entry 

against terrorists entry. 

To be clear, the benefits of not having to obtain a visa before entering the U.S. are beyond convenience. Visa-free travel enables the 

terrorist to avoid biometric screening until arrival in the U.S., investigations by ICE HSI visa security units, security reviews by 

counterterrorism intelligence officers at the National Counterterrorism Center, and interviews conducted by consular officers 

trained in behavioral anomalies. 

But, first, before reviewing these recommendations, let’s make 

sure that the effort to revamp the VWP actually matches the terrorist threat of VWP travel to America. I think we can all agree 

that the threat evidence is pretty substantial and includes outright 

direct threats from Daesh against the U.S.; the ramped-up attacks 

against civilians we are seeing in Texas and now in California; the 

guidebooks that are in my testimony that Daesh itself are putting 

out, emphasizing faking identity and passports to assure border 

crossing; and reports of Daesh seeking to embed in the Syrian refugee populations in Europe. 

Yet perhaps the most obvious evidence of the threat of terrorist 

travel from European countries is that France, the U.K., and Germany are all in the top 10 of producing ISIS foreign fighters in the 

world, with numbers now in the thousands. And these individuals 

have direct, legal, visa-free access to our shores. 

So what do we do? First, in regards to the VWP program, we 

must require that all VW countries, as you all just passed in legislation, replace all their passports with those that hold biometric information that can be verified by our border personnel. But replacing paper booklet passports with e-Passports is not quite enough. 

Our ports of entry must be able to read those passports to verify 

that the bearer of that passport is the right one by conducting facial recognition between the passport and the person standing in 

front of them. Not only do we not do that for foreign nationals 

today, but DHS has no capability right now to conduct facial recognition. They can only match fingerprints because the Office of BiVerDate Nov 24 2008 10:50 Jul 13, 2017 Jkt 000000 PO 00000 Frm 00023 Fmt 6633 Sfmt 6633 H:\25881.TXT APRIL

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18 

ometric Identity Management has yet to become fully multimodal 

in its biometric matching capability. 

Another serious issue, on a completely different topic, are countries, like Malta and Cyprus, that put up their passports for sale 

with no residency requirement. VWP countries that sell citizenship 

outright to a potential terrorist should be made ineligible for the 

program. 

Moving on to the individual traveler, the online ESTA application Kelli Ann has spoken of in-depth does add a layer of security 

by requiring passport and other information from the traveler in a 

timely manner so watch lists can be checked. However, the form, 

as DHS knows well, depends upon the applicant’s veracity, which 

is not something that is usually in a terrorist’s toolbox. Despite the 

ESTA form’s inherent vulnerabilities, biographic information remains essential to processing. But biometrics do need to be added 

to the mix. One such opportunity for adding biometrics into the 

vetting of all travelers is requiring all VWP countries to establish 

CBP preclearance operations to remain in the program. 

Preclearance authorities would encompass full admission procedures, including authenticating the passport is valid; checking to 

make sure the holder of the passport is the passport owner and 

that their name, face, fingerprint, or iris biometrics do not match 

any watch list. Preclearance would also be a win for legitimate 

travelers who can arrive in the U.S. with minimal cues and hassle. 

And the program itself would be stronger, individual application 

processing more secure, and the U.S. port of entry processing 

streamlined. 

One last point I think we cannot overlook. The VWP tourist overstay issue remains. The GAO tells us that 43 percent—43 percent—of VWP tourists make up the overstay population in the U.S. 

Yet, as of 2013, there were over a million unmatched records in our 

biographic arrival/departure system. Who knows who amongst this 

group may be hiding in plain sight on U.S. soil because we simply 

haven’t the means to know who is here and who is not and who 

may pose a threat amongst those overstays. 

I encourage Congress to continue oversight of the VWP program, 

augment the good work that DHS is doing, improve biometric immigration processing, including full biometric exit implementation. 

Thank you. And I look forward to having further discussions with 

you. 

[Prepared statement of Ms. Kephart follows:] 


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Testimony before the 

Committee on Oversight and Government Reform, 

Subcommittee on National Security 

and the 

Subcommittee on Health Care, Benefits and Administrative Rules 

TERRORISM AND THE 

VISA WAIVER PROGRAM 

Thursday, Dec. 10,2015, 9:00am 

Rayburn House Office Building, Room 2154 

Janice Kephart 

Fonner border Counsel, National Commission on Terrorist Attacks Upon the 

United States 

Fonner Special Counsel, Senate Judiciary Committee (during consideration 

of S. 744, Border Security. Economic Opportunity, and Immigration Modernization Act) 

Homeland Security Solutions Director, MorphoTrak LLC 
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2 of 24 

Chairman Chaffetz, Ranking Member Cummings, Subcommittee Chairs DeSantis and Jordan 

and Ranking Members Lynch and Cartwright as well as esteemed Members of this Committee, 

thank you for the opportunity to testify on terrorism and the Visa Waiver Program (VWP). Creating a secure border system which operationally assures the tri-objectives of facilitation, efficiency and security requires a combination of clear statutory guidance, leadership, clear policies, appropriate resources in budgets, pers01mel and good technology. 

The clear tension between increasing numbers of U.S.-bound international travelers alongside 

unprecedented possibilities for increased U.S.-bound terrorist travel from vulnerable Visa Waiver 

Program members 1 overwhelmed by Syrian refugees and its own radicalized demographics is a 

deep challenge to the national security of the United States. 

In 2007, the biometric exit requirement became intertwined with Visa Waiver Program continuation and once more at today's hearing, the emphasis born on 9/11 will continue to be on the importance of thorough identity vetting via biometrics, borders and advance counterterrorism intelligence reviews. To be clear, progress has been substantial since 9/ll in curtailing terrorist travel, 

resulting in thousands ofwatehlistcd individuals being denied visas or admission into the U.S. 

The men and women who commit every day of their careers to countering terrorism and securing 

our borders deserve both our sincere thanks and support. Yet as the threat evolves and technologies evolve to combat the threat, our policies, operations and legal structure must evolve as well. 

In addition, as the ad hoc and intem1ittent terrorist infonnation-sharing with our international 

partners remains insufl:ieicnt, strong U.S. leadership and support in the world is essential. 

As you are well aware, the The Final Report i!fthe National Commission on Terrorist Acts Upon 

the United States (the 9/11 Final Report) and my border team's attending monograph, 9/11 and 

Terrorist Travel, provided the factual and policy backdrop tor the 2004 Intelligence Refon11 Act 

and subsequent 9/11 laws that were integral to reorganizing our intelligence bureaucracy as well 

as mandating key border recommendations such as first a fully automated biometric entry and 

exit system at all ports of entry, which today remains only partially fulfilled. I want to clarify that 

this testimony is intended to augment the many of the upgrades to the Visa Waiver Program announced by President Obama on November 30,2015 and included in H.R. 158, the "Visa Waiver 

Program Improvement and Terrorist Travel Prevention Act of 2015." 

To clarify for the record, I have been called to testify today in my individual capacity as a former 

9/11 Commission border counsel, along with my subsequent research and work over the past II 

years continuing to buttress the recommendations found in the 9111 Final Report and my team's 

supporting monograph, 9/1 f and Terrorist 1i·avef regarding border and identity security. In addition to conducting much of the investigation and reporting into why the 9/11 terrorists were able 

I According to the State Department website at http://travel.state.gov/content!visas/en/visit/visa-waiver-orogram.html the following 

38 countries~ are Visa Waiver Program participants: Andorra, Australia, Austria, Belgium. Brunei, Chile. Czech Republic, Denmark, 

Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia. Liechtenstein, Lithuania, Luxembourg, 

Malta, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenla, South Korea, Spain, 

Sweden, Switzerland, Taiwan, United Kingdom. 
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3 of 24 

to exploit U.S. border vulnerabilities here in the U.S., some of the well-known 9/11 Commission 

phrases and concepts for which I was directly responsible arc "terrorist travel,'' "border security 

is essential to national security," "for terrorists, travel documents are as important as weapons," 

requiring a passport or equivalent for all persons entering the United States (implemented as the 

Western Hemisphere Travel Initiative), and a comprehensive biometric entry-exit system. Iremain proud to serve this country by providing whatever analytical support is of value, and hope 

the 18 recommendations in this testimony are helpful. 

I am currently the Homeland Security Solutions Director for MorphoTrak, LLC, a U.S. subsidiary of the largest and oldest biometrics company in the w·orld, Safran Morpho, based in Paris, 

France. Every day, Morpho spends $3 million in research, development and deployment of biometric technologies around the world, including border systems. I am also the founder, and was 

until September 2015, the CEO of the nonprofit trade association advocating on behalf of the 

biometrics and identity industry, the Secure Identity and Biometrics Association. 

VISA WAIVER PROGRA)'I NATIONAL SECURITY CONCERJ'JS and RECOMMENDATIONS 

38 countries are currently designated as VWP participants. Five years ago, 45 percent of our 

global nonimmigrant admissions were from VWP countries.' These 20 million VWP visitors per 

year have remained steady through 2014. However, VWP today represents about 33 percent of 

global travelers to the U.S. as travel from the rest of the world to the U.S. continues to increase. 

The VWP participants overlap with the Schengen Area of Europe, but for Poland, which still lacks 

VWP status. This is relevant because the Schengen area consists of 26 European countries that 

have created one common external border for international travel purposes, and a common visa 

policy. Within its borders the need for a passport has been abolished as well as border control. 

This system has been left the interior of Schengen extremely vulnerable to terrorist travel, and 

these weaknesses in turn make it difficult for European VWP partners to provide the type of intelligence and vetting we must require. VWP partner citizens receive a significant perk in not 

being required to obtain a visa prior to non-immigrant tourist or short tenn business travel, and 

as such, our partners must live up to their agreements in providing sufficient information on their 

citizens to assure we are not permitting terrorist travel unknowingly. 

While the European Commission's Smart Border initiative and a series of biometric pilots at 

Schengen land, air and sea ports has recently concluded after extensive testing that will help lead 

to full deployment of biometric solutions to further secure the extemal borders of Schengen, between the sovereign nation borders within Schcngen terrorists will likely continue to travel relatively easily unless there arc drastic changes to Schengen border crossing policies and operations. The worst type of result of such travel was witnessed by the atrocious coordinated attacks 

2 CAS Report RL31381 "U.S. Immigration Policy on Temporary Admissions"by Ruth Ellen Wasem (Feb. 28, 2011} at https://www.· 

fas org/sgp!crs/bomesec/8! 31381 pdf. 
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in Paris on November 13, 2015 leaving 135 innocent people dead that included those now known 

to have had false passports, used the Syrian refugee t1ows, and traveled extensively throughout 

Europe and beyond. 

Additional concerns are less well publicized, such as the VWP countries that have placed their 

passports and/or citizenship for sale like Austria, Hungary and Malta and island nations near the 

United States for whom we do not require a visa for short tern1 stays, such as St. Kitts. 

To be clear, as we learned during the course of our 9/11 Commission investigation, terrorists are 

resourceful, study border vulnerabilities closely, and continually remain a threat even when border control is strong, especially with digital altematives such as social media and the dark net 

available to incite local terrorist activity. Yet weak borders arc not an option: weak or no vetting 

procedures enable the ability to clandestinely meet, train. recruit and conduct deadly operations 

with little to no impediment. If a terrorist cannot get to his attack destination, that terrorist is not 

fulfilling his mission. It is that simple. 

Thus, as stated in our 9111 Commission Final Report recommendations, our nation's level of 

border security is significantly relevant to our national security. It thus essential that despite the 

many dedicated improvements to border control the U.S. has undertaken since 9/11, we continue 

to assess and determine how as a nation we can improve our border system here at home, as it is 

our ports of entry that arc responsible for adjudicating admissions ofVWP travelers. 

Aligning the threat from terrorist travel today against the strengths and weaknesses of our nation's current border system will go a long way to making an objective assessment as to what to 

prioritize in terms of VWP and border control improvement. That analysis begins with three objectives: 

1. Determine whether the current V\VP eligibility requirements arc sufficient and if not, how to 

improve the criteria. 

2. Determine how to improve the current ESTA process, including detem1ining whether any of 

the security elements of the current visa process administered by the State Department Consular Services could incorporated into the ESTA procedures administered by the Department 

of Homeland Security; and 

3. Dctem1ine whether the current admission requirements arc sufficient to assure U.S. national 

security from VWP applicants for admission, and what improvements could be made. 

This testimony will conclude that while the VWP improved its processing with the addition of 

the ESTA processing of individual travelers, and this past September upgraded the online application further with a few somewhat helpful new data fields, equally important is assuring that the 

country criteria for VWP eligibility is adequate. We must make sure that we are doing all we can 

to enforce compliance with current criteria while considering new, additional requirements to be 

eligible, or retain the VWP designation. H.R. 158 that was voted on this week addresses many of 
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5 of 24 

these issues, but it is worthwhile to conduct further analysis to place H. R. 158 in context, and 

expand beyond the confines of the bill. That is the intent of this testimony. 

The Threat of Terrorist Travel 

While the threat of terrorism to all those not adhering to ISIS' version of radical Islam is perhaps 

greater than ever in recent history, this is not the same as determining the threat of terrorist travel. I leave the fom1er to counterterrorism experts. Here I will focus on analyzing the relevant and 

useful courses of action to enhance the VWP and our port of entry processing at home ofVWP 

applicants. 

From briefings received in July 2015 while speaking before the United Nations Security Council 

on Curtailing Terrorist n·avel, there was a strong exchange on the issue of how terrorists are 

moving. Some intelligence authorities from European countries asserted that most of those seeking to join ISIS were using their own identities and passports, while others stated that false identities and usc of counterfeit or stolen passports were the preferred means of travel. To be thorough, this testimony attempts to address both. 

To be clear, because this hearing focuses on 

the Visa Waiver Program and not the entire 

border system, this testimony will not address 

those seeking clandestine entry between onr 

ports of entry, a valuable alternative to those 

who either seek anonymity or are unable to 

use air travel for U.S. entry. 

Manipulation ofidentity a Key Element of 

ISIS Strategy 

As ISIS expands its brand of terror and 

widens its net with its worldwide call for other terrorists to join them, there has been a 

rapid rise ofthe need for fighters to use fake 

passports to get out of their home countries 

undetected, travel into Syria, and then back 

out (if they survive) undetected to their designated locations to await instructions. 3 In this 

case, ISIS has intended for over a year to use 

Syrian refugee flows as an additional means 

to hide themselves. Fake passports, aliases, and 

3 International Business Times, "ISIS Terrorists Disguised as Refugees in Trojan Horse Plot Against Europe" (Oct. 2014) by Jack 

Moore at http·//www jbtimes co tJk/jsjs~terrorjsts-disgtJised-refugees-trojan-horse-plot-against-europe-1468701. 
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bypassing border checkpoints are critical to success. Curtailing this terrorist travel is critical to 

stopping this rising tide and spread ofterror,4 and some countries like Australia and the United 

Kingdom are placing stringent requirements or outright banning the retum or exit of such fighters. 

On March 28, 2015, ISIS published its How to Survive in the West 20155 guide for ISIS recruits 

and members. Divided into chapters, its English translation [without grammatical corrections] 

begins with a section on the importance of changing and maintaining different personas depending on the audience. The section below is actually broken out in blue and red to highlight its importance as follows: 

important because you will dillcrent in this 

Identity change is so important that everything about you- your: (Alias name, Physical 

look. Voice. Meeting places, and even phon0 number.) arc different to your real ones. 

makes it extremely difficult for intelligence agencies to know who you really arc if 

you always take security precautions before every meeting. If you can find people who 

can fake ID cards, that would be even better (and this may he possible if you can have 

contact with people in the dark underworld)." 

These types of publications are proliferating on the dark net and intercepted by intelligence authorities. For example, this past spring ISIS also just published a 70-page manual in fluent English instructing ISIS members on how to best to "befriend, rob, and kill" from the inside of westem society. The manual, according to an April20, 2015 summary,6 begins with how to use online scams to steal money and raise funds, make bombs from household items, praises the Tsarnaev brothers for using a pressure cooker as their mode of attack, and then lays out how to conceal one's identity. 

Along with funds and weapons, one last aspect the guide teaches is the methods of covert 

operation needed to keep the terrorist attack secret and launch it without attracting attention. The 

guide instructs terrorists not to wear Islamic clothing, take on a westernized name, and wear colored contact lenses to confuse witnesses. One covert tactic is to cover up terror acts. The guide's 

section on "secret white converts" explains how to manipulate Westerners to use them for alibis, 

and how to influence people in power. 

4 While North America Director for an international border nonprofit, I organized and held an international security meeting in Washington D.C. Sept 9-11, "Curtailing Terrorist Travel'' that included the international community, the FBI, CBP, ICE and many others. It 

was quite informative on the level of threat and how to curtail it. The website is borderoo!americas com 

5 http·ffwww blazingcatfur ca/wp-content/up~lds/2015/04/!S!S-How-to-survive-in-the-westpdf 

6 israelnationalnews.com, "ISIS Guide Teaches How to Befriend, Rob and Kill Westerners" by Dalit Ha!evy and Ari Yashar at~ 

www israelnatjonalnews com/News/News aspx/194292# VmEf?OOfrGd_ 
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"Befriend good decent white people who are dissatisfied with their governments, be 

close to them and offer them support and guidance in life," it suggests. "If these people 

open up to you, you can decide if you want to tell them about Islam. You will tell them 

enough infonnation to satisfY what service you require off them, but not more than 

that." 

It is clear that an essential element of a successful terrorist portfolio, according to ISIS, is the 

ability to manipulate identity. Using fake IDs and taking on a different name while infiltrating 

Stolen VWP and American 

Passports 

We know that legitimate U.S. 

passports are a high commodity on 

the black market, including for 

ISIS and those seeking travel out 

of Syria. Americans targeted for 

passport theft are then sold to individuals whose facial likeness 

best matches the buyer. The same 

is the case for those from VWP 

countries who have easy access to 

the U,S. as well, since the ESTA 

online application fom1 itself is 

highly susceptible to fraud. 

western society to pretend to be a different individual, or with different intentions, is essential. ISIS is 

so well aware of the issue of identity and fraud that 

it has begun issuing its own ID cards to prevent its 

own "caliphate citizens'' from using the fraud they 

advocate to manipulate the rest of the world. The 

image here was tweeted on April I 7, 2015. According to Australian reporting, 7 the IDs contain a "threedimensional chip and anti-counterfeiting hologram 

and are being distributed among people living in IS 

controlled territories throughout Iraq and Syria." 

TV report by Dubai TV AIAan, "ISIS terrorists stealing passports from 

Westerners" (May 11, 2015} at https:!lwww.youtube.com/watch? 

v-1 mkWW2DX6Mg 

7 news.com au, "Images have emerged on Twitter of new identification cards for those under IS rule" (April 17, 2015) !:l.!!Q;JL 

www news com au/wor!d/mjdd!e-east/jmages·haye-emerged-on4wjtter-of-new-identificatjoo-cards-for-those-tmder-js-ru!e/newsstory/Bd323b1 e7bb126.'363803fb4067a876e4 
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Fake Travel Document Production 

Second best to legitimate travel documents arc fake travel and breeder documents. Production of 

fake birth certificates, national ID cards and passports continue to have value for those to obscure 

their identities, including terrorists, as ISIS has made clear in its 2015 western survival guide. 

One of the November 13th Paris suicide terrorist attack bombers outside a soccer stadium had a 

Syrian passport that was not his ov.11. As long as all countries are not requiring ePassports that 

hold biometrics verifiable by immigration authorities when travelers present for border crossing, 

fake document production will continue to facilitate travel. That will be the case for VWP countries too until machine-readable-only passports arc eliminated as valid for border crossings and 

U.S. ently. Sites like this one abound. with fake document purveyors posting and seeking to outdo each other in the quality oftheir products: 

Venezuela Producing Fake Documents for Terrorists. From the vantage point of fake document purveyors comes the case of state sponsored fake document purveyors. "According to a 

declassified CBSA [Canada Border Services Agency] report, Venezuelan authorities provided at 

least 173 passports, visas, and other documents to Islamic extremists seeking to slip into North 
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America unnoticed."8 In a video was posted onto You Tube featuring a fonner diplomat from the 

Venezuelan embassy in Baghdad, in Spanish, this official blows the whistle on a scheme whereby employees at Venezuelan embassies throughout the Middle East create false immigration 

documents. According to this officer, between June 2014 and February 2015 he witnessed the 

sale of thousands of visas, passports, national identification cards, and birth certificates to thousands of Syrians, as well as some Iraqis, Palestinians, and Pakistanis. The man even confesses 

that embassy workers assisted known terrorists, specifically detailing a case involving a member 

of the terrorist group Hezbollah in Lebanon. 

Venezuela is selling visas, passports, and falsified birth certificates to Hezbollah terrorists. according to a 

Venezuelan diplomat who was stationed in Iraq and identifying himself as Misael Lopez Soto. So to says in a video 

uploaded to You Tube Wednesday that he had to flee Venezuela's embassy in Baghdad and is now in hiding due 

to death threats he received after attempting to expose the operation. Published on Dec 1, 2015 at~ 

outtJbe.comlwatch?v-c kT6lJwm.Jww 

Syrian Refugee Crisis 

With the Syrian refugee crisis creating preferential treatment for Syrian refugees, the crisis itself 

is itself creating a surge in blackmarket fake Syrian passports sought for those seeking refugee 

8 Toronto Sun, "Passports: Rogue regimes, black markets for identity documents pose border security challenge" by Candice Mal~ 

co!m (Nov. 28, 2015) at http-j{www torontosuo com/2015/11(27/bogus~oassports~create-refqgee-cha!!enge. 
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status in the U.S. and elsewhere in the West" Meanwhile, ISIS strategy to date has been to use 

the Syrian refugee crisis as cover to move its own people. On November 19, 2015 five Syrians 

were arrested in Honduras using stolen Greek passports in an attempt to make their way to the 

U.S. According to news reports, the men were going to move through northern Honduras, cross 

Guatemala and Mexico to illicitly cross the U.S. southwest border. 

Fake Syrian passports, stolen VWP passports, and illegal entry are all vulnerabilities that the Syrian refugee crisis is fomenting. In addition, in a report by the House Homeland Security Committee on the Syrian refugee crisis published this month, the depth of evidence that ISIS is infiltrating the Syrian refugee camps is substantiaL The report lists known terrorists now in Gcm1any, 

Italy and Hungary and of course France, all known to have come in via the Syrian refugee 

flows. 10 

Recommendation 1: While taking into account the hnman factors involved with any 

refugee crisis, and the factors of persecution and genocide of particular groups within the 

Syrian population, the U.S. must remain vigilant that ISIS will target the refugee 

population to seek legitimate immigration status to embed in the U.S .. Vetting is far 

from inhumane; it is a standard operating procedure that must be invoked categori 

cally on any demographic where it is impossible to be assured that an individual is 

who they say they are, and has no nefarious information attached to them. Such vet 

ting should be automatically ramped up when the threat is known to be high. 

There arc many ways to maximize adequate vetting and minimize risk which include but 

are not limited to background investigations, forensic document analysis, extensive 

overseas interviews and biometrics as well as choosing which demographics pose the 

least risk. All must be examined. However, in a population where there is substantial 

infom1ation that terrorists known to be overtly threatening the U.S. arc infiltrating, it is 

imperative that all factors are considered prior to a final Syrian refugee policy 

determination. 

Conducting a Visa Waiver Program Assessment 

While it is highly encouraging that the President is requiring DHS and the State Department to 

jointly conduct a review of "identifying any countries that are deficient in key areas of coopcra9 Toronto Sun, "Passports: Rogue regimes, black markets for identity documents pose border security challenge" by Candice Malcolm (Nov. 28, 2015) at http·//www.torontosun com/2015/1i/27/bogus-passports~creale-refugee-chal!enge. 

IO House Homeland Security Committee, "Syrian Refugee Flows Security Risks and Counterterrorism Challenges: Preliminary Findings of a House Homeland Security Committee Review" (Nov. 2015) at https://homeland hoiiSe.gov{wp~cootent!tmtoads/2015/11/ 

Home\andSec!JrityCommittee Syrjao Refugee Report pdf. 
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tion," 11 Congress has both an obligation and a right to oversee the Visa Waiver Program and insist upon access to the VWP compliance reports the White House has asked for in its Fact Sheet. 

In its November 30,2015 VWP Fact Sheet announcement, the White House verified that many 

nations in the VWP program arc not able to adequately share terrorist infom1ation or are not fully 

cooperating with information-sharing. It is encouraging that both the White House and the House 

are seeking corrective action to assure infom1ation-sharing on terrorists, those nations who are 

having difficulty doing so as well as INTERPOL, and are willing to provide incentives or penalties where appropriate. Also of value is the Fact Sheet statement that the President is seeking a 

full report within 60 days to "identify possible pilot programs designed to assess the collection 

and use of biometrics (fingerprints and/or photographs) in the VWP to effectively increase security."lc 

Recommendation 2: Congress should continue to couduct its own assessment of the 

VWP in parallel to the White House to assure that enhancements requested by 

the administration are adequate to curtail terrorist travel, and do so annually. 

Enhancing Visa Waiver Program Requirements 

In addition to the requirement for a less than three percent visa refusal rate to be eligible for 

VWP designation, the State Department website13 lists the following criteria for eligibility for a 

VWP designation is discretionary and includes: 

enhanced law enforcement and security-related data sharing with the United States 

• issuing ePassports (program still accepts machine-readable passports issued prior to 2006) 

• having a visitor (B) visa refusal rate of less than three percent 

timely repmiing of both blank and issued lost and stolen passports 

• maintenance of high counterterrorism, law enforcement, border control, and document security 

standards 

requiring its residents to fill out an online authorization fom1, ESTA, before traveling to the 

United States 

• increased airport security requirements 

The House Homeland Security Final Foreign Fighter Task Force released in September 2015 

states that "The level of terrorist travel we are seeing today is without precedent. The numbers 

are now so high that Westem governments arc becoming increasingly worried they will be un11 White House, "FACT SHEET: Visa Waiver Program Enhancements" (Nov. 30, 2015) at https://www.whitehouse.gov/ 

the-press-olfice/2015/11/30/fact-sheet-visa-waiver -program-enhancements. 

12 https://www. whttehouse.gov/the-press-office/2015/i 1/30/fact-sheet-visa -waiver-program-enhancements 

13 http:!ltravel.state.gov/contentlvisas/en/visit!visa-waiver-program.html 
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able to prevent violent extremists from entering their countries undetected." 14 The report states 

that three of the top ten countries producing the 25,000 foreign fighters (that number is now 

30,000) known to have traveled to ISIS controlled territories are VWP countries. In September, 

France was fourth with 1,550 of its citizens having gone to ISIS and Germany and the United 

Kingdom arc tied for eighth with 700. 

For every one of these individuals from VWP counties. there is not only the possibility ofretuming home to recruit others or commit terrorist attacks as seen in Paris this past month, but it is 

possible that with access to a lost or stolen valid machine-readable passport issued prior to 2006, 

they will be able to fraudulently enter the U.S. relatively easily based on a false name and document if they have never attempted U.S. entry before and our terrorist or foreign national databases do not currently hold their fingerprints. More alarming is that since the U.S. docs not read the 

cPassport chip currently, it is possible to abuse the ePassport system as well. 

However, much of the world docs understand the value of a biographic +biometric border system. More than 80 countries now have ePassports whose embedded chips contain infonnation 

that replicate the MRZ on the passport and add in at least a photo that can be retrieved using facial recognition software. I have been told that 34 of the VWP countries have added both face 

and fingerprints to their passport e-chips. 

While ePassports arc flourishing, the world is catching up with actually reading these chips to 

enhance security. The U.S. still does not systematically read the chips, but nor can they. In fact, a 

2014 European Commission Schengcn Final Smart Border Technical Report (not available to the 

public) states that the European countries within Schcngen system cannot read the fingerprints 

on the e-chips. 

Recommendation 3: All V\VI' countries should be required to replace all valid 

machine-readable passports with ePassports immediately to reduce the risk of 

fraud associated with lost and stolen passports and the priority use of such 

passports for terrorist travel. Such ePassports should include the bio page contents and 

facial image as they do today (ironically, U.S. facial image quality is considered the worst 

in the world), as well as fingerprints and the visa itself. 

Recommendation 4: All VWP countries should be required to provide the PKI to 

open and read their face and fingerprint images or templates on the chip to 

authenticate the passport and verify the identity of the traveler. 

Recommendation 5: All VWP countries should be required to contribute to, and use, 

INTERPOL's lost and stolen passport database, as well as its foreign fighter 

database, in a timely manner. 

14 House Homeland Security Committee. '"Foreign Fighter Final Task Force Report" (Sept 29, 2015) at https·//hometand.house.gov/ 

wp-conteolltJploads/2015/09ffaskForceEina!Report.pdf. 
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Enhancing the Electronic System for Travel Authorization (ESTA) 

The Electronic System for Travel Authorization (ESTA) is a statutory requirement mandated by 

the Implementing Recommendations of the 9/11 Commission Act of 200715 for participating 

VWP tourist or short tenn business travelers. ESTA is an automated, biographic system that 

makes an initial determination of visitor eligibility visitors without a visa to the United States, 

where a Customs and Border Protection (CBP) inspector will make an admission determination 

upon arrival, usually at an air port of entry. ESTA applications for all travelers, including babies, 

must be submitted prior to travel, and failure to comply with the ESTA process may result in denial of check-in on the day of travel although it is still possible to attain an ESTA approval same 

day. Canadians and Mexicans arriving at U.S. land ports of entry are exempted from ESTA16 

The fee for the ESTA application is $14, with $10 going to the travel industry, and the remaining 

to CBP. 

Recommendation 6: Authorize an increase in ESTA fees for the purpose of establish 

ing CBP Preclearance at designated VWP airports. For example, a $6 increase in the 

current $14 paid by VWP travelers for submitting the online ESTA application today 

could be increased to a $20 fee. (An additional $6 is not much in relation to the cost of 

travel itself). However, this $6 increase applied to the average of 20 million VWP travelers per year could raise an additional $120 million/year in additional revenue, and do so 

in a way that would minimize the impact on appropriation requests. (See Recommendation #9 on Preclearance as a requirement for VWP eligibility.) 

By way of comparison, visa integrity processing protects the U.S. from foreign nationals who 

threaten public health and safety or national security, while at the same time welcome legitimate 

foreign nationals who bolster the U.S. economy and foster international exchanges. Balancing 

these dual, and some would say competing, missions is an ongoing challenge. 

More specifically, the non-immigrant visa process 17 for non-VWP countries includes biometric 

identity verification, an interview, robust database checks and opportunities for greater investigation. In short, the non-immigrant visa process is significantly more secure than the ESTA 

process. More speciJically, processing of visas for tourist or short term business non-immigrants 

usually includes the following processing to which ESTA applicants arc not subjected: 

15 Pub.L 110·53 at htto://www.goo.gov/fdsys/pkg/PLAW-110pub!53/htm!/PLAW-110oub!53.htm. 

16 For more on ESTA processing see Usa Seghetti, Congressional Research Service "Border Security: Immigration Inspections at 

Ports of Entry" (Jan. 26, 2015) https:J/www fas org/sgp/crs/homesec!R43356 odf. 

17 Visas are processing by the Department of State Consular Affairs under the auspices of over 20+ statutes. 
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Hem-Immigrant Visa P«~cess R~uiremenls not R~ulred f)y VWP ESTATravelers 

Personal interviews are required for all nonimmigrant visas. 22 C.FR § 42.62 However, in defined circumstances 

waivers may be granted to children under age 14, persons 79 years or older, diplomats and representatives of 

international organizations, aliens who are renewing a visa they obtained within the prior 12 months, and individ· 

ual cases for whom a waiver is warranted for national security or unusual circumstances. 22 C.F.R. § 41,102. The 

ESTA process does require in-person interviews for those whose application produces a hit in US terrorist watchlist 

Physical and/or mental examination [Sec. 212(a) inadmissibility grounds] 

Consular Consolidated Database screening [biographic and biometric database] including screening of 143 million 

visa applications dating back pre 9/11 [includes 75 million lace photos, digital images of visa applications since 

2001, and 10 fingerprint scans] 

Capture and check of 10 fingerprints in DHS OBIM I DENT system for prior immigration identity information and in 

FBI NGI for criminal/terrorist check. 

Background check in Consular Lookout and Support System (CLASS), uses name searching algorithms to match 

names to potential derogatory information including prior visa issuance, denials [info from DHS, FBI, DEA re indi· 

victuals who may pose a threat] 

Security Advisory Opinions (replaced by Kingfisher Expansion) whereby 1 00 percent of all visa applications examined to identify any connections to terrorism by comparing applicant data to the classified data holding in FBI Ter· 

rorist Identities Datamart Environment (TIDE) database [reducing SAOs by 80%] enabling DHS, FBI, Terrorist 

Screening Center to proactively respond in coordinated manner. Nonimmigrants denied visas based on terrorist 

grounds of inadmissibility were close to 1200 in 2014. 

Kingerfisher real time review of issued visas based on emerging threats 

Visa revocation authority 

ICE Office of International Affairs expert advice and investigation on site via DHS Visa Security Units authorized to 

conduct terrorist investigations and forensic document examination; these deployed at high risk diplomatic posts 

Visa issuance includes biometric identifiers (e.g., scans of the right and left index fingers) in addition to the digitized photograph that is linked to OBIM's !DENT for verification upon admission at POEs 

and 

Recommendation 7: Conduct a full assessment of ESTA vetting versus non-immi 

grant visa vetting, and determine what elements of consular processing both essen 

tial to national security and feasible to include in the ESTA process. 

These include biometric identity verification. current interview requirements, access to 

robust database checks within the U.S. and with our VWP country partners, 

opportunities and procedures to deter fraud in the online ESTA application process and 

opportunities for greater terrorist and forensic investigation offered by ICE's Visa 

Security Units and State Department's Diplomatic Service. For example, there are only 
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19 existing Visa Security Units while there are 225 U.S. visa-issuing posts worldwide. 

With VWP countries such as France, Germany and the United Kingdom among the top 

ten countries producing foreign fighters, scmi-pen11anent VSUs in VWP designee 

countries should be considered. 

Recommendation 8: Consider establishing Visa Security Units in VWP countries 

known to have a high concentration of ISIS foreign fighters, at least for the duration 

of the assessed threat. 

Enhancing Preclearance 

Today CBP has 15 Preclearance offices in Canada, Ireland, and the Caribbean. These offices 

were set up under The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 

(JIRIRA) in response to the February 1993 terrorist attack on the World Trade Center. The lead 

perpetrator, Ramsey Youscf (nephew ofKhalid Sheikh Mohamed who later was integral in operationalizing the 9/11 attacks), had boarded a plane from Europe with a fake European passport, 

threw that passport in the plane toilet, then claimed asylum upon landing and was paroled into 

the U.S. In a post-1993 World Trade Center bombing atmosphere, the purpose of Preclearance 

was to keep inadmissible terrorist aliens from departing for the U.S. as Yousefhad done and then 

claiming asylum upon arrivaL 

IIRIRA required the implementation oflegacy Immigration and Naturalization Service pre-inspection (now Preclearance) programs at select airports overseas. The 9111 Commission supported this program, and its first statutory vehicle for its recommendations, The Intelligence Reform and Tenwist Prevention Act of 2004, required DHS to meet a 15 foreign airport minimum 

and authorized up to 25 airports. 

Recommendation 9: Require every VWP member to have in place an operational 

CBP Preclearance program at its highest volume U.S.-bound international airports 

or other relevant ports. CBP officers should have full authority to conduct full 

inspections of travelers and their luggage, collect biometrics and verify identity, 

and refuse clearance if necessary. This is the most logical operational means of col 

lecting biometrics and verifying identity within the current ESTA program. 

CBP is currently in negotiations with seven other VWP participating countries: Belgium, 

Japan, Norway, Netherlands, Spain, Sweden, and the United Kingdom. This work should 

be encouraged and supported with appropriate authorization and appropriation and/or 

ESTA fcc increase. Priority should be given to those nations assessed at being most at 

risk for terrorist travel. 
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Curtailing Use of Citizenship for Sale for Visa-Free Entry to the United States 18 

In a BBC New York article from June 2014 entitled "Where is the cheapest place to buy citizenship?" it estimates that several thousand people a year spend a total of $1.9 billion dollars to acquire second and third passports. The largest buyers arc those from China, Russia and the Middle 

East. Countries struggling to make ends meet have noticed the interest and some are providing 

citizenship with no or minimal residency requirements for large sums of cash. Some of these 

countries happen to be our island neighbors whose citizens are not required to obtain a visa for 

short visits to the U.S. and include St. Kitts and Nevis (the first country to do so in 1984), Antigua and Barbuda, Dominica, and Grenada. These island offerings range from $100,000 by Dominica to $400,000 in Antigua and Barbuda. St. Kitts is the no. 1 selling "second passport" in the 

world, and in 2011 had to stop selling to Iranians due to U.S. pressure, who were buying to bypass U.S. sanctions. 

Others offering passpm1s for large sums of "investment cash'' for minimal residency requirements that can lead to citizenship are VWP countries. Australia, Austria, Belgium, Bulgaria, 

Cyprus, Hungary, Malta, the Netherlands, Pm1ugaL Singapore, Spain, United Kingdom and the 

United States all ofler such programs. Cyprus and Malta grant passport access with a simple investment; the other countries require a term of residency, usually in excess of$! million. The 

Austrian passport is considered of extreme high value, enabling its buyer access to 171 nations in 

the world visa-free, including the United States. 

Recommendation 10: Make ineligible for the VWP program any country that place 

citizenship without residency for sale. 

Recommendation 11: For those that offer second passports after minimal residency, 

require that the appropriate country authority notify the U,S. of any individuals 

who currently "bought" access to their VWP passport, and the particulars of that 

passport. Such individuals must be notified that they are exempt from VWP status in 

regard to the U.S. and thus must apply for visas for all U.S. travel. 

Biometrics in Support of Identity Intelligence Operations 

Assuring that foreign national identities are biometrically vetted across the border system against 

all intelligence data available to our government, including those identities acquired by the intelligence community, Department of Defense, the FBI and the DHS Office ofldentity Management IDENT system, is critical. This includes persons unknown to the system -whether Special 

Interest Aliens who cross illegally between the ports of entry, or refugees, or travelers. There is a 

pilot ongoing now in that regard, the Identity Intelligence (I2B) Pilot. Its purpose is to "assist the 

18 BBC, New York "Where ls the cheapest p!ace to buy citizenship? by Kim Gitt!eson (June 4. 2014) at http·Uwww hhC com/news/ 

b!lsjness~27674135 and "10 Best Second Passports and Citizenship by Investment Programs" by Christian Reeves (August 12, 

2015) at htlp://premjeroffshore com/10-best·second-passports-and-dtjzensbip-by-lnvestment-programs/. 
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Department of Homeland Security (DHS) with detem1ining whether this modality can augment 

existing biometric screenings for Syrian refugee applicants and also identify a threat-nexus for a 

subset of non-U.S. persons who attempt illegal entry." 19 More specifically, the pilot, according to 

the accompanying DHS privacy assessment, seeks to (1) identify unknown terrorists seeking 

refugee status; (2) provide actionable infom1ation on unknown persons who have attempted illegal entry; and (3) inform DHS on how interoperable, accurate and thus useful intelligence community biometric infonnation is to their border operations. 

Recommendation 12: The effort to create a concerted biometric identity vetting for 

foreign nationals that integrates foreign national data and data acquired by the in 

telligence community should be supported and appropriately expanded to all recommended classes of foreign nationals as deemed appropriate to the threat of terrorist 

travel. 

19 http://www.dhs.gov/publjcation/dhsallpia-054-identity-inte!!igence-biometrics-i2b-oi!ot 
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Biometric Exit 

At least 32 countries have biometric entry or entry/exit border control. The U.S. only has biometric entry control and even today, a "biographic-only" approach to exit continues, at least for now. 

Today's immigration exit system requires advance passenger data and name records of foreign 

nationals who have checked in for departure, which are then logged into the immigration arrivaldeparture database. While our current biographic-only system is the best it can be, operating in 

real time between airlines and DHS, a biographic-only system will always be unable to confirm 

identity. This is the case with the online ESTA application as well. The only way to confirm identity is through biometric means such as facial recognition software, iris scans, or fingerprints. In 

addition, a biometric solution is the only solution that provides the benefits for government, the 

traveler. the airport, and the airline (or, in the case of the sea ports, the sea carrier). 

The Problem with Names. A serious issue that remains unsolved more than a decade after 9/11 

is misspelled or inaccurately recorded names that are the foundation of a biographic-only system. 

The 19 9/ll hijackers collectively had over 300 spellings of their names. Boston Marathon 

bomber Tamerlan Tsarnacv's name was misspelled on a manifest list of a flight to Russia, meaning that the FBI did not have the benefit of an important lead in investigating his terrorist ties. 

While that particular problem has been fixed, simply requiring a "next generation" version of 

such software will not solve the problem. Merely enhancing software that picks up name anomalies can never be sufficient because thousands of varieties of uncommon names from all over 

the world are spelled differently in English or even purposefully misspelled. Nor docs such software pick up complete biographic identity changes or outright fraud, a much more nefarious 

problem that biometrics solves in seconds. 

Identity veritlcation produces actionable infom1ation. When an individual purchases a plane or 

boat cruise ticket, the federal govemment (indeed, most all governments) require advance passenger identity information, including Passenger Name Records (PNR) taken by airlines. This 

infonnation is then tumed over to government authorities for risk assessments. Upon arrival at 

the airport for departure, the identity associated with the passenger must be verified. The seconds 

it would take to process a biometric solution is essential to assuring that the name matches the 

individual, eliminating nearly all varieties of fraud. 

Recommendation 13: VWP countries should be required to implement a biometric 

entry/exit system. Those within Schengen should assure that exterior bordersvehicular. air, rail and sea - have an integrated person-centric biometric entry exit system 

for Schengen residents while interior borders both record travel and biometrically verify 

the traveler. Such information should be available upon request to U.S. authorities in 

terrorism investigations on an as needed basis. 
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19 of 24 

Improvements at U.S. Ports of Entry 

There arc 327 official ports of entry in the United States. VWP's value and security is at least in 

part detcm1ined by ports of entry processing, mostly air. It is worth noting, however, that an ISIS 

or other tenorist who fails at obtaining a VWP passport, a visa, or refugee status may well seek 

support of a human trafficker willing to help illegally cross our 6,000 miles of physical border. 

Thus, it is imperative that CBP have the best tools available to identifY individuals seeking to 

hide their true identity, or simply become anonymous, no matter where that individual is encountered. pin regard to the VWP, however, the greatest immediate concem remains strengthening 

processing at air ports of entry and implementing biometric exit capabilities. 

In 2007, the 9ill Commission Implementation Act amended certain sections of the Immigration 

and Naturalization Act (8 U.S.C. 1 1 87) pertaining to the control of foreign nationals' travel. The 

law reiterated the need for exit data and required exit data collection apply to all foreign nationals entering under the Visa Waiver Program. The amendment in section 21 7(h) mandates that air 

caniers be required to "collect and electronically transmit" passenger "anival and departure" data 

to "the automated entry and exit control system" developed by the federal government. 

The amendment to section 217(i) mandates that "the Secretary of Homeland Security shall establish an exit system that records the departure on a flight leaving from the United States of every 

alien participating in the visa waiver program" that 

(1) shall--(A) match biometric infommtion of the alien against relevant watch lists and 

immigration information; and 

(B) compare such biometric infom1ation against manifest infonnation collected by air 

caniers on passengers departing the United States to conlim1 such aliens have departed 

the United States. 

The issue with overstays remains a valid one. As recently as 2013, even after a scathing 20 l 1 

GA 0 report that stated that overstays had not been reported on since 1994 and there were \. 6 

million unmatched records of individuals who the U.S. did not know whether they were still in 

the U.S., or had departed, in a 2013 update to that report the GAO stated: 

As of April 20 I 3, DHS continues to maintain more than 1 million unmatched arrival 

records inADIS [Anival Departure Infom1ation System]. GAO's preliminary analysis 

identified non immigrants traveling to the United States on a tourist visa constitute 44 

percent of unmatched ani val records, while tourists admitted under a visa waiver constitute 43 percent. The remaining records include various types of other non immigrants, 

such as those traveling on temporary worker visas.20 

20 GA0-13-602T Report: IMMIGRATION ENFORCEMENT: Preliminary Observations on DHS's Overstay Enforcement Efforts by 

Rebecca Gambler (May 21, 2013) at hlto://www.gao.gov/orodpcis/GA0-13-602T 
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20 of 24 

The issue ofVWP tourist overstays (which should be same individuals who are filing ESTA applications to gain admission) remains. Implementation of a biometric exit at all ports of entry, 

with initial emphasis on air ports of entry, is now heightened by the terrorist threat. Implementation is necessary sooner than ever to provide (1) the adequate data to know who is here and who 

is not, and (2) enable the next step of determining who is a security risk and who is not. In full 

recognition that CBP is working diligently to improve both air entry and seeks to test air exit capabilities (that is the goal) in 2016, Congress can remain helpful to CBP by mandating requirements for improved processing that will eliminate the need for subsequent CBP justifications. 

For example, CBP conducted a successful facial comparison pilot earlier in 2015 at Dulles International Airport on U.S. citizens that simply compared the U.S. passport face image to the live 

person seeking admission. The purpose of the pilot. in part, was to assure against the known trafficking in U.S. passports that enables foreign nationals to pose as U.S. citizens and thereby avoid 

the ten fingerprint capture that is mandatory for all foreign nationals, with few exceptions. Such 

facial comparison between the passport and traveler seeking admission is essential. While the 

pilot is being expanded to other airports currently, CBP does not have a mandate to operationalize this essential border security check. Congress should do so. 

Recommendation 14: Support a deployment of biometric exit at all air and land 

pedestrian ports of entry as soon as possible as required under current law. 

Recommendation IS: Require all U.S. ports of entry to have the capability to conduct one to one facial recognition check against stored digital photo and fingerprints 

in ePassports for all travelers. 

Recommendation16: Provide appropriate support moderuization of the DHS Office 

of Biometric Identity Management so that the program can efficiently and accurately process not just fingerprints as is the current practice, but implement multimodal biometric processing to include facial images (collected at U.S. ports of entry, 

iris images (collected by the Border Patrol and some consular offices), with the ability 

to expand to voice recognition and other biometric modes over time as necessary. 

Improvements in U.S. Interagency Coordination 

In the House Homeland Security Committee's Foreign Terrorist Travel Task Force Report of 

September 2015, the Committee outlined the continual failure of any administration since 2004 

to establish at the DHS a Terrorist Travel Program Office, a key border recommendation from the 

9/11 Commission Final Report. In addition, the report chronicles the failure of the "Department 

of State and Department of Homeland Security to prepare a strategic plan to target and dismpt 

individuals and organizations at home and in foreign countries that are involved in the fraudulent 

production, distribution, or usc of visas, passports and other documents used to gain entry to the 
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21 of 24 

United States. This strategic plan is to emphasize individuals and organizations that may have 

links to domestic terrorist organizations or foreign terrorist organizations."21 

The report further found that dozens of government projects exist to combat terrorist travel, most 

operating independently and none within an overarching framework that assesses the threat nor 

coordinates a government-wide delineation of roles and responsibilities. The following recommendations are mostly in line with Task Force recommendations. 

Recommendation 17: DHS should lead the standup Terrorist Travel Program Office 

in conjunction with the Department of State, FBI, relevant members of the 

intelligence community. The office could be overseen by the National Security 

Council to assure its status and relevance as an ongoing federal government 

national security requirement. 

Recommendation 18: This Terrorist Travel Program Office should conduct a full 

audit of current terrorist travel preventive actions and produce a strategy to combat 

terrorist travel both domestically and internationally. 

21 House Homeland Security Committee, "Foreign Fighter Final Task Force Report" (Sept. 29, 2015) at httos·//homeland.house gov/ 

wp~confent/uploads/2015/09/TaskEorceEinaiReoort pdf. 
40 

Mr. DESANTIS. Thank you. 

The chair now recognizes Mr. Jenkins for 5 minutes. 

STATEMENT OF BRIAN MICHAEL JENKINS 

Mr. JENKINS. Chairman DeSantis, Chairman Jordan, Ranking 

Member Lynch, Ranking Member Cartwright, members of the committee, thank you very much for inviting me to testify on this important issue. There are two ways a foreign terrorist organization 

can carry out attacks in the United States. One is by persuading 

followers here to carry out attacks on their behalf. And certainly 

both Al Qaeda and more recently ISIL have exhorted their supporters here to do that. Both have had limited success in persuading some individuals here to carry out some attacks, in some 

cases with lethal consequences as we have seen. Their greater success is limited by the lack of traction that their ideology is having 

in the community here and by the remarkably effective efforts of 

domestic intelligence in uncovering and thwarting a number of 

these threats. 

The second way is by recruiting operatives abroad and then 

sending them into the United States to carry out attacks. If we 

look at the recent history, we see that the threat has been mainly 

from homegrown terrorists. Of the 134 persons who since 9/11 have 

carried out or plotted terrorist attacks here on behalf of jihadist 

ideology, 96 of them were U.S. citizens, 19 were legal permanent 

residents. In other words, 86 percent of these individuals were 

radicalized while they were living here. Eight more came into the 

country on various kinds of visas. One came in or attempted to 

come in on the Visa Waiver Program. That was Richard Reid, the 

so-called shoe bomber. Three had earlier crossed the Mexican border illegally. The remaining seven were asylum seekers, refugees, 

or others. That is not to say that all of those came here with the 

intent of carrying out terrorist attacks. 

Now, the good news is that these numbers are small. There’s no 

obvious hole in the fences. Those who entered used several paths 

depending on individual opportunities. The most common way was 

simply ordinary visas. And I do want to underscore here that it’s 

not always clear that the visa interview is going to be better at 

picking up some of these people than the system we have in place 

for a visa work waiver. 

While we may, however, draw some comfort from the fact that 

terrorists are not pouring into the country, there’s no basis for complacency here. The threat is dynamic. Circumstances change. Our 

security must adjust. And looking ahead, there are some obvious 

concerns. The conflicts in Syria and Iraq will certainly continue for 

the foreseeable future. It may take years for the campaign currently directed against the so-called Islamic State to succeed in 

scattering it or defeating it. Meanwhile, ISIL’s ideology continues 

to exert a very powerful pull. The numbers are not precise, but all 

estimates of the number of foreign fighters in Syria keep going up 

despite the bombing campaign. There’s also a difference here, I 

think we’re beginning to see between those foreign fighters particularly from the West who are going to Syria and Iraq and the previous cohorts of those who went abroad to join other jihadist fronts 

in the past. This group is younger. It is attracted by ISIL’s wellVerDate Nov 24 2008 10:50 Jul 13, 2017 Jkt 000000 PO 00000 Frm 00046 Fmt 6633 Sfmt 6633 H:\25881.TXT APRIL

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41 

advertised violence, certainly not put off by that fact. It appears to 

be a more troubled population in Syria and Iraq. Some of these 

people are going to be participating in atrocities. That’s going to 

change them. And while they are there, they’re going to be subject 

to a continuing bombing campaign, which may strengthen their 

commitment and desire for revenge. So this is certainly going to be 

a long-term problem. 

Our ability to vet and screen entries into this country depends 

a great deal on intelligence. And, indeed, it depends, in part, on our 

partners’ intelligence holdings. And the problem here is that the 

European authorities are currently being overwhelmed simply by 

the numbers of individuals that they have to, they have to deal 

with. Therefore, I think it has to be our operative presumption that 

terrorist operatives, including returning foreign fighters, will continue to look for ways to penetrate our security and get into the 

country to carry out attacks, as well as recruit others already here 

to carry out attacks on their behalf. I look forward to your questions. 

[Prepared statement of Mr. Jenkins follows:] 


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Inspiration, Not Infiltration 

Jihadist Conspirators in the United States 

Testimony at a hearing on Terrorism and the Visa Waiver Program 

Presented before the House Oversight Committee, Subcommittee on National Security and Subcommittee on Health Care, 

Benefits, and Administrative Rules on December 10, 2015 

Brian Michael Jenkins 

CT -477 

RAND Office of External Affairs 

This product is part of the RAND Corporation testimony series_ RAND testimonies record testimony presented by RAND associates 

to federal. state, or local !egrs!atJVe committees: government-appointed commissions and panels; and private review and oversight 

bodies. The RAND Corporation is a nonprofit research organization providing objective analysis and effective solutions that address 

the challenges facing the public and private sectors around the world. RAND's pub11cations do not necessarily reflect the opinions of 

its research clients and sponsors. RAND® is a registered trademark 
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Brian Michael Jenkins 1 

The RAND Corporation 

Inspiration, Not Infiltration: 

Jihadist Conspirators in the United States2 

Before the Committee on Oversight 

Subcommittee on National Security 

Subcommittee on Health Care, Benefits, and Administrative Rules 

House of Representatives 

December 10, 2015 

Chairman Jordan, Chairman DeSantis, Ranking Member Lynch, Ranking Member Cartwright, 

and Members of the Subcommittees, thank you for inviting me to address the important issue of 

whether terrorists are able to exploit the Visa Waiver Program to enter the United States. 

Even before last month's horrific attacks in Paris, concern about the growing number of Western 

recruits joining the Islamic State of Iraq and the Levant (ISIL) and other jihadist groups in Syria 

and Iraq and the exodus of refugees flooding Europe from the Middle East and North Africa have 

led the House and the Senate to hold urgent hearings focusing on whether terrorists could exploit 

the Visa Waiver Program or infiltrate the deluge of refugees to enter the United States.3 

Today's testimony offers a different approach and will examine a broader topic: how terrorists 

may enter the United States. AI Qaeda and some of its affiliates, and now the so-called Islamic 

State and its adherents, seem determined to carry out terrorist attacks in the United States. To do 

so, they must remotely inspire individuals already here to take action on their behalf (the so-called 

1 The opinions and conclusions expressed in this testimony are the author's alone and should not be 

interpreted as representing those of RAND or any of the sponsors of its research. This product is part of the 

RAND Corporation testimony series. RAND testimonies record testimony presented by RAND associates to 

federal, state, or local legislative committees; government-appointed commissions and panels; and private 

review and oversight bodies. The RAND Corporation is a nonprofit research organization providing objective 

analysis and effective solutions that address the challenges facing the public and private sectors around the 

world. RAND's publications do not necessarily reflect the opinions of its research clients and sponsors. 2 This testimony is available for free download at http://www.rand.org/pubs/testimonies/CT 447.html. 3 Brian Michael Jenkins, Containing Middle East Terror.- Measures to Reduce the Threat Posed by Foreign 

Fighters Returning from Syria and Iraq, Testimony presented before the House Homeland Security 

Committee, Subcommittee on Border and Maritime Security, March 17, 2015; The Continuing Lure of Violent 

Jihad, Testimony presented before the House Homeland Security Committee, March 24, 2015; There Will 

Be Battles in the Heart of Your Abode: The Threat Posed by Foreign Fighters Returning from Syria and Iraq, 

Addendum to Testimony before the Senate Homeland Security and Governmental Affairs Committee on 

March 12, 2015, April17, 2015; and The Implications of the Paris Attack for American Strategy in Syria and 

Homeland Security, Testimony presented before the Senate Homeland Security and Governmental Affairs 

Committee, November 19, 2015 
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"self-radicalized" or homegrown terrorists), or they must try to get terrorist operatives into the 

country. Disrupting their planning must be an urgent priority with respect to both scenarios4 

That leads to the first question: How have those who have plotted terrorist attacks entered the 

United States in the past? 

A review of how terrorists got here, which we will come to in a moment can help guide where the 

United States needs to prioritize its efforts and resources. 

Security has become an increasingly important aspect of screening immigrants and temporary 

visitors (including tourists) who come to the United States, and various security enhancements 

have reduced some of the obvious vulnerabilities. These measures also may have a deterrent 

effect, but as long as these terrorist organizations exist, the operative presumption must be that 

they will keep trying to carry out attacks here. How terrorists got here in the past shows us some 

important points, but may not be a reliable indicator of how terrorist organizations may attempt to 

bring violence here in the future. 

That leads to the second question: How might terrorists in the future try to overcome the security 

measures in place to prevent their entry? 

Addressing this question may help identify some remaining vulnerabilities. 

A Long-Term Problem 

Concern about how to keep terrorists out of the country is not a new problem for the United 

States, nor is it one that will go away any time soon. While current events at home and abroad 

understandably drive our concern, it is important to recall that the threat of foreign-inspired 

terrorism reaches back before 9/11 to the terrorist attacks and plots of the 1990s-and even as 

far back as the early 1970s-and that the threat is likely to continue years into the future. It is the 

nature of contemporary conflict. 

In 1973, Khalid Duhham AI-Jawary, acting on behalf of the Palestinian terrorist group Black 

September, flew from Jordan via Canada to New York, where he rigged car bombs to explode at 

three Israeli targets in New York City. Ironically, AI-Jawary (a citizen of Iraq and Jordan) entered 

4 1 would like to thank Richard Daddario, David Lubarsky, and my RAND colleagues Laura Baldwin, Jayme 

Fuglesten, Andrew Liepman, and Henry Willis for their reviews and helpful comments, and Janet Deland and 

Valerie Nelson for their editorial assistance. 

2 
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the United States claiming to be enrolled in training for a commercial pilot's license-the same 

purpose the 9/11 hijackers gave. Owing to faulty circuitry, the bombs he constructed, which could 

have caused massive damage, failed to detonate. AI-Jawary was able to escape the country and 

was not apprehended until 18 years later. He was sentenced to 30 years in prison, but was 

released in 2009 and deported. 

In the 1993 World Trade Center bombing, homegrown terrorists were assisted by bomb-maker 

Ramzi Yousef, who entered the United States on an Iraqi passport, then claimed asylum. To help 

him construct the bomb, Yousef enlisted Abdul Rahman Yasin, a U.S.-born citizen whose family 

had moved back to Iraq when he was a young child. Yasin used his U.S. citizenship to obtain a 

passport and returned to the United States eight months before the bombing. 

After the World Trade Center bombing, authorities interrupted a follow-on plot to blow up 

additional targets in New York. Most of the conspirators in what became known as the Landmark 

Plot were U.S. legal permanent residents as a result of marriages later suspected to have been 

fraudulent. 

One of the two would-be suicide bombers targeting New York's subway system in 1997 entered 

the country on a transit visa, which he overstayed. The other had a long record of illegal entries 

from Canada, but when Canada refused to take him back, he was placed on parole awaiting a 

hearing. 

In 1999, as part of the broader Millennium Plot to carry out simultaneous attacks in the Middle 

East and the United States, Ahmed Ressam planned to bomb Los Angeles International Airport. 

He entered the country on a fraudulently obtained Canadian passport, but was stopped and 

arrested by U.S. Border Patrol agents. The 9/11 hijackers all entered the country on tourist, 

student, or business visas. 

Since 9/11, al Qaeda's jihadist ideology has inspired more than 50 terrorist plots in the United 

States, most of them interrupted by authorities. AI Qaeda also has made several attempts to 

bomb flights bound for the United States. Two of these involved foreign recruits (Richard Reid, 

the "shoe bomber," and Umar Abdulmutallab, the "underwear bomber") who were able to obtain 

visas and board U.S. aircraft in Europe. 

In addition, two Iraqis who were implicated in attacks against U.S. forces in Iraq were mistakenly 

allowed to enter the United States. Once their connection to Iraqi extremists was uncovered, they 

3 
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were investigated, arrested and convicted for continuing to support extremist groups in Iraq, 

although they had not been involved in any terrorist plotting in the United States. 

Since 1990, the United States has had a total of 182 terrorists who, inspired by jihadist ideology, 

have attempted to carry out attacks in the United States or on U.S.-bound flights-137 involved in 

post-9/11 terrorist attacks or plots, the 19 9/11 hijackers (plus the 20th hijacker, Zacarias 

Moussaoui, who entered the country and took flying lessons but did not participate in the 9/11 

attacks), and the 25 pre-9/11 conspirators from the 1990s5 These numbers derive from ongoing 

analysis of publicly available records. They will be periodically augmented and corrected as 

additional information becomes available. 

The good news is that 182 is a relatively low number of perpetrators (although with the disastrous 

outcome of 9/11), especially when spread over nearly 26 years. For the more than 14 years since 

9/11, the total comes to 120, an average of about nine persons a year. 

How Did They Get Here? 

It is important to emphasize that the majority of terrorist conspirators discovered during the past 

25 years were already here. They did not need to travel to the United States, they needed no 

documentation-they were Americans. In some respects, identifying terrorist operatives overseas 

and preventing them from coming here is the easy part. Identifying enemies among us is the big 

challenge. 

Of these 182 persons mentioned above, 101 were U.S. citizens (at least 57 of them were born in 

the United States, 38 were naturalized, and six were U.S. citizens for whom details were not 

available). An additional28 were legal permanent residents. Given the time it takes to become a 

U.S. citizen or even acquire legal permanent resident status, this means that at least 129 (71 

percent) of the 182 were homegrown terrorists-that is, they were probably radicalized while 

living here. This appears to be the prevailing pattern. Few of the terrorist plots in the United 

States have involved recent arrivals. Three of the 1993 World Trade Center bombers; both of the 

would-be subway bombers in 1997; Ahmed Ressam in 1999-the 9/11 hijackers, of course-and, 

5 This is according to information that appeared in earlier RAND publications and was updated for this 

hearing. See Brian Michael Jenkins, Stray Dogs and Virtual Armies: Radicalization and Recruitment to 

Jihadist Terrorism in the United States since 9111, Santa Monica, Calif: RAND Corporation, OP-343-RC, 

2011; and When Jihadis Come Marching Home: The Terrorist Threat Posed by Westerners Returning from 

Syria and Iraq, Santa Monica, Calif.: RAND Corporation, PE-130-1-RC, 2015. I am grateful to my RAND 

colleagues Andriy Bega and Anita Szafran for their assistance in assembling the information and 

constructing the new spreadsheets. 

4 
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since 9/11, a couple of others, came to the United States with the express purpose of carrying out 

a terrorist attack. The rest are homegrown. 

Three of the four conspirators named in the 2006 plot to blow up fuel pipelines at John F. 

Kennedy International Airport in New York were foreigners who were arrested abroad-they did 

not enter the United States and therefore we do not count them here. Of the 50 who entered the 

country {as opposed to those already here for a while), 32 had some type of temporary visa. 

(Twenty of these came on tourist visas, five on student visas, one on a business visa, one on a 

transit visa, the others on unidentified visitor's visas.) At least one-third of the visa holders 

overstayed their visas. The others came as refugees or asylum seekers, crossed the border 

illegally, or used other means of entry. Information was unavailable for two entrants. 

Counting only the 134 persons involved in terrorist plots after 9/11 {and excluding the three 

foreigners who were arrested abroad), 96 of them (or 72 percent) were U.S. citizens; another 19 

were legal permanent residents. In other words, this indicates that 115 {or 86 percent) were longterm residents of the United States. Only eight {6 percent) of these 134 were in the country on 

some type of temporary visa. {The remainder entered the United States by a variety of other 

means and information is lacking for one.) 

Looking at the 25 pre-9/11 and the 20 9/11 conspirators--45 in all, 31 were in the country on 

temporary status-only 14 (31 percent) of the 45 were U.S. citizens or legal permanent residents. 

The greater percentage of long-term residents in the post-9/11 terrorist plots may reflect 

increased scrutiny of entry visas after 9/11. 

Unlike Europe, the United States has yet to see returnees from the conflicts in Syria and Iraq 

involved in terrorist plotting in this country. This is a development to watch for. 

Two of the 182 conspirators identified to date entered the country as refugees (plus the two Iraqi 

refugees who were arrested in Kentucky in 2011 ). Two rnore of the plotters were in the United 

States as asylum seekers. Another plotter was identified as an "immigrant" without further details. 

Three of the plotters had entered the country illegally by crossing the Mexican border. 

Just three of the jihadist-inspired conspirators since 1990 entered the United States under 

the Visa Waiver Program. Ahmed Ajaj, a terrorist operative trained in explosives, flew into the 

United States in 1992 on the same flight as Ramzi Yousef. He attempted to enter the country on 

a Swedish passport bearing another name but altered with his photograph. The alteration was 

crudely done, and he was sent to secondary screening, where immigration officials found two 

5 
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other passports in his luggage. Detained by authorities, he later pleaded guilty to using an altered 

passport and was sentenced to six months in jail, although he continued to keep in contact with 

Yousef while the latter built the bomb that would be used in the 1993 World Trade Center 

bombing. Ajaj was released just days after the 1993 bombing but was then rearrested and 

convicted of involvement in the plot. Meanwhile, Yousef. who claimed asylum upon his arrival, 

was released pending a court hearing. 

Despite reportedly being on a French watch list for suspected involvement in terrorist activities, 

Zacaria Moussaoui, the 20th 9111 hijacker, was granted a visa waiver as a French citizen and 

allowed to enter the United States. 

As a British citizen, shoe-bomber Richard Reid also was granted a visa waiver and allowed to 

board an airplane headed to the United States in December 2001. Reid's passenger profile and 

behavior at the airport attracted the attention of airline security authorities, who prevented him 

from boarding the flight. Later questioned and cleared by French authorities, he boarded the 

same flight the following day. 

All three cases involving the Visa Waiver Program could have had serious consequences. 

However, Ajaj was put in jail, Moussaoui was not able to participate in the 9/11 attack, and 

Richard Reid's explosive device malfunctioned. Intelligence cooperation has improved since 

2001. while visa waiver requirements have increased. 

Jihadist Conspirators in the United States since 9/11 

U.S. citizens 96 

Legal permanent residents 19 

Temporary visas 8 

Visa Waiver Program 

Illegal crossing of border 3 

Other (asylum, refugee, etc.) 7 

TOTAL 134 

6 
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What conclusions can we draw from this historical record? 

The total number involved in jihadist terrorist plots in the United States is relatively low. AI 

Qaeda's long campaign to inspire Americans to carry out attacks in the United States has 

produced meager results. Few Americans have responded, and most of their attacks have been 

amateurish; although some of their attacks were still lethal, they lack expertise. ISIL's effective 

use of social media has lured a greater number of followers to come to the Islamic State in the 

Middle East but has not produced a wave of terrorism here. Intelligence efforts abroad and in the 

United States have disrupted most of the terrorist plots. 

Most of the conspirators have been U.S. citizens or legal permanent residents radicalized 

in the United States. Since 9/11, the principal problem has been homegrown terrorism, not 

terrorists entering the country from abroad, although again underscoring the point above that 

jihadist propaganda has produced a low yield of terrorist attacks in the United States. 

The failure to persuade Americans to carry out attacks may increase pressure on jihadist 

groups to infiltrate terrorist operatives to carry out attacks, recruit local confederates, and 

provide technical assistance. However, recruiting locals likely would expose the jihadists to 

discovery here, especially if they attempt to involve a larger number of attackers-such as the 

eight people directly involved in the recent Paris attacks. All it takes is one wrong choice, one 

person to betray the operation. 

Theoretically, terrorist infiltrators have a number of options. They can try to enter the United 

States as refugees or request asylum upon arrival. They can apply for various entry visas, or if 

they are from one of 38 countries currently in the Visa Waiver Program, they can go through the 

procedures for a visa waiver. They can try to enter by posing as someone else, using counterfeit 

or altered travel documents. Or they can attempt to sneak across one of the land borders. None 

of these possible entry routes offer terrorists easy access. 

Terrorists who tried to get in used many of the potential paths-visas of various types, 

asylum requests, fake marriages, and so on. The entries are distributed fairly evenly across 

the many approaches. This likely represents the variety in the opportunities available to the small 

number of individuals who attempted entry. That is, each approach offered different advantages 

and disadvantages, and each followed the path that was the best one for them at the time. The 

resulting pattern is more a function of individual circumstances rather than a reflection of 

underlying vulnerabilities. 

7 
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In the past 25 years, only two refugees have been convicted of involvement in terrorist 

plots. This does not count the two Iraqis, who should not have been allowed in the country but 

who were not plotting terrorist attacks here. Moreover, refugees wanting to come to the United 

States often have to wait months, even years, before gaining approval. It is a slow route and one 

of the most scrutinized, which may explain why terrorists have not used it. 

Only three would-be terrorists entered the country under the Visa Waiver Program, and 

none in the 14 years since Richard Reid's attempt to sabotage a U.S.-bound airliner. 

However, the potential return from Syria of thousands of fighters with European passports will 

require increased vigilance. The new visa waiver application will ask specifically about travel to 

Syria, Iraq, or other conflict zones. The applicant may lie about it, putting the burden on 

intelligence collection to have accurate, up-to-date information about foreign fighters. Better 

information sharing, both within Europe and between Europe and the United States, is essential 

to ensuring that individuals known by one country to be affiliated with terrorism are known to all. 

Information within the European community must flow as easily as travelers can. 

Few would-be terrorists run the border. One would-be bomber tried to enter the United States 

with a legitimate, although fraudulently obtained, Canadian passport, but he was stopped at the 

border for other reasons. Three persons illegally crossed the border from Mexico and, years later, 

became involved in a terrorist plot. In 2011, a radical Muslim cleric reportedly paid traffickers in 

Mexico to smuggle him into the United States but was arrested by Border Patrol officials. U.S. 

land borders are porous. Citizens from Mexico and Central America comprise the bulk of the 

immigrants illegally crossing the border, but immigrants from Middle Eastern countries and other 

non-European nations also have used this route for many years. 

The most common way foreign participants in terrorist conspiracies have entered the 

United States has been through obtaining ordinary visas for tourism, business, or student 

purposes. Those who managed to enter successfully navigated the application and interview 

process. Since only eight such entries have occurred since 9111, it is difficult to draw conclusions, 

except that it is not certain that procedures governing visa approval for non-visa-waiver citizens 

are necessarily better than those in place for granting visa waivers. 

Moreover, any reduction in entries through the Visa Waiver Program would increase the 

workload for processing visas, including interviews, which could degrade their quality. 

Even spending a few minutes with each additional applicant would require significant 

reinforcements to the consular corps. (Nearly ten million nonimmigrant visas are were issued in 

2014.) 

8 
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Overstaying visas occurs in many of the cases. This is a problem that Congress has addressed 

several times. Tracking visitors' exits and visa overstays continues to be a major problem. 

Americans Who Went Abroad to Join Jihadist Fronts 

The data above include only individuals who have been involved in terrorist plots in the United 

States (or on U.S.-bound flights). Another 140 US. residents are known to have left home to join 

or try to join jihadist fronts abroad, or to seek instruction and gain experience that could then be 

used to plan attacks at home. Those who returned to participate in terrorist plots in the United 

States already have been counted in the above analysis. Others, frightened or disillusioned by 

what they saw, came home to lie low. However, in recent years, a growing number have left the 

United States seemingly for good to live or die in the ranks of ISIL or other foreign jihadist 

organizations in Syria and Iraq. 

We have information on 134 of the 140. Of these, 115 (86 percent of the 140) were U.S. citizens, 

18 were legal permanent residents, and one was a Canadian citizen. Foreigners residing in the 

United States on temporary visas do not show up in this group. 

ISIL propaganda has been more successful than al Qaeda in attracting Americans to join its 

ranks abroad and also has been a point of inspiration for a number of recent terrorist plots in the 

United States. Thus far, no American returnees from Syria and Iraq have been involved in known 

terrorist plots in the United States. 

Americans returning from Syria and Iraq, along with foreign fighters going back to visa waiver 

countries, as well as others, will pose a continuing terrorist threat, although it is important to point 

out that this group is among the most closely scrutinized. For reasons discussed below, this is, 

however, a long-term problem. 

Assessing the Current Situation in Syria and Iraq 

Before looking at the terrorist threat ahead, it is necessary to understand the dynamics of the 

conflicts in Syria and Iraq, which will continue to fuel that threat. Let me offer a brief assessment 

of the current situation.s 

6 This summary is drawn from a more recent report: Brian Michael Jenkins, How the Current Conflicts Are 

Shaping the Future of Syria and Iraq, Santa Monica, Calif.: RAND Corporation, PE-163-RC, 2015. 

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The fighting in Syria and Iraq will continue 

Right now the situation is at a military stalemate. By stalemate, I mean that the insurgents 

arrayed against the Syrian government and ISIL forces in Iraq cannot overthrow governments in 

Damascus or Baghdad, but for the foreseeable future, neither government will be able to restore 

its authority throughout national territory. 

Sectarian and ethnic divisions now drive the conflicts, which have become an existential 

contest for all of the local parties-it is a fight to the death or, at least, exhaustion. 

Syria and Iraq are now effectively partitioned-Iraq into relatively homogenous Shia, Sunni, 

and Kurdish zones, and Syria into a messier mosaic. This partition is likely to persist 

Foreign powers have significant stakes in the conflicts, but they have competing interests. 

Absent major military investments, outsiders cannot guarantee the victory of local allies. 

The world will be dealing with the fallout of this conflict for years to come 

The fallout includes a continuing terrorist threat, returning foreign fighters, and a deluge of 

refugees. 

ISIL's ideology continues to exert a powerful pull. The U.S.-Ied coalition bombing campaign in 

Syria and Iraq, along with ground offensives by Iraqi government forces and Kurdish fighters, has 

recaptured some territory from ISIL, but the number of individuals joining or planning to join ISIL 

has not diminished. ISIL is calling on more to come. 

ISIL portrays its struggle in apocalyptic terms as the final showdown between believers and 

infidels. This encourages extreme action and individual sacrifice. I suspect that as ISIL is put 

under increasing military pressure, we will see more references to the end of times, more calls to 

its supporters to carry out attacks lest they be left behind and miss their shot at paradise. 

The volume of recruits, potential recruits, and returning fighters appears to be overwhelming 

authorities in Europe. While the number of Americans wanting to go to Syria has increased, it 

remains a fraction of the number of Europeans who are joining ISIL's cause. 

As a consequence of the destructive style of fighting in the current conflicts, especially in Syria, 

12 million refugees have been internally displaced or have fled the country. Another 4 million 

have fled or have been internally displaced in Iraq. 

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Hundreds of thousands of these refugees have headed to Europe, raising fears that terrorists can 

hide among the refugee masses to gain entrance into a country. Thus far, we have seen little 

evidence of this, although one or two of the terrorists in the Paris attack may have arrived in 

Europe disguised as a refugee. This is still being investigated. 

The purpose of this sober assessment is to underscore that our exertions on behalf of security 

cannot be anaerobic. While providing for the common defense, the United States must preserve 

its open society and the ability of its citizens to travel abroad to visit, study, and conduct 

commerce (which means that others must be able to come here). Risk cannot be reduced to 

zero. 

Looking Ahead 

Disengagement from the conflicts raging across Africa, the Middle East, and South Asia is 

tempting but dangerous. Both al Qaeda and ISIL continue to exhort their affiliate groups and 

individual followers abroad to carry out terrorist attacks on their behalf. Leaving them alone will 

not change their behavior. Jihadist ideology is inherently aggressive. Perpetual war is 

fundamental to the jihadist belief system-without continued armed struggle, there is no al 

Qaeda, no ISIL. 

Military progress against ISIL paradoxically could make things worse in the short run. As pressure 

increases, ISIL may become more determined to carry out major terrorist attacks in the territories 

of its tormentors in order to erode their support for the continuing anti-ISIL campaign, 

demonstrate its continuing strength, and maintain morale among disheartened followers. 

After the Russians intervened in the conflict and started bombing extremist targets in Syria. proISIL terrorists sabotaged a Russian airliner. Losses on the ground in Iraq to Kurdish and other 

Iraqi forces preceded the attacks in Paris. Without asserting that these terrorist attacks were 

centrally directed, they do suggest a correlation between battlefield setbacks and retaliation via 

terrorist attacks. U.S. bombing of ISIL is cited as a major motive by terrorist conspirators in the 

United States. We can probably expect more terrorism as the campaign against ISIL progresses. 

If ISIL is crushed, its local supporters will go underground. as they did before in Iraq, to continue 

the fight-but its foreign fighters cannot easily survive a clandestine struggle. They will go on to 

other fronts or return home. It is likely that some will be bent upon revenge. 

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In response to continuing terrorist threats, the United States has erected 21st-century walls: 

increased scrutiny of travelers, more fields to be filled out in entry applications, bigger intelligence 

databases, longer watch lists, identity checks requiring biometric confirmation. These have made 

us safer, but they must remain filters, not barriers to travel and commerce. 

Back to our question at the outset: How might those determined to carry out attacks in the United 

States attempt to overcome these defenses? 

Hoping that U.S. or European intelligence efforts will not identify everything, would-be attackers 

may still try to attempt to enter the country by obtaining visas or visa waivers. "New persons," 

supported by fabricated documents, may be created electronically. Terrorist plotters may also 

seek to recruit "clean skins"-those not likely to be on any watch lists-for training abroad. To 

further reduce the likelihood of raising suspicion, terrorist groups could try to train recruits in 

countries other than Syria or obvious conflict zones. 

The 1993 World Trade Center bombing and the recent terrorist campaign in France involved 

combinations of remote direction, locally recruited participants, and external technical assistance. 

The recent attacks in France have involved foreign inspiration and assistance, returning foreign 

fighters, and local confederates. We must be constantly aware of new organizational 

configurations created by terrorists to increase their ability to carry out attacks on U.S. soil. 

Intelligence Is Key 

Past successes (as well as failures) show that much depends on intelligence efforts. The 

immediate post-9111 environment saw unprecedented cooperation among intelligence services 

and law enforcement organizations worldwide, which made the terrorists' operating environment 

a lot more hostile. And if some terrorists slip through these defenses, prevention will depend on 

domestic intelligence efforts to uncover recruiting and preparations. 

Recent attacks suggest shortcomings in European coordination, which is critical to both European 

and U.S. efforts to monitor terrorist movements and thwart tomorrow's terrorist attacks. The 

security enhancements added to the visa waiver application and screening of other visa 

applicants from other countries depend on having the information necessary to audit what 

applicants clairn. 

We now have systems in place that allow all visa applications to be compared with the entirety of 

U.S. terrorism-related intelligence holdings, including what foreign intelligence services provide. 

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What the United States needs is full access to European passenger information and more data 

on European foreign fighters. 

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BRIAN MICHAEL JENKINS 

Brian Michael Jenkins serves as the Senior Advisor to the President of the 

RAND Corporation. He is also the Director of the National Transportation 

Security Center at the Mineta Transportation Institute. From 1989 to 1998, 

Mr. Jenkins was the Deputy Chairman of Kroll Associates, an international 

investigative and consulting finn. Responsible for the firm's crisis 

management practice, he directed the responses to kidnapping and extortion 

cases worldwide. Before that, he was Chairman of RAND's Political 

Science Department where, from 1972 to 1989, he also directed RAND's 

research on political violence. 

Mr. Jenkins has a B.A. in Fine Arts and a Masters Degree in History, both 

from UCLA. He studied at the University of Guanajuato in Mexico and in 

the Department of Humanities at the University of San Carlos in Guatemala 

where he was a Fulbright Fellow and recipient of a second fellowship from 

the Organization of American States. 

Commissioned in the infantry at the age of 19, Mr. Jenkins became a 

paratrooper and ultimately a captain in the Green Berets. He is a decorated 

combat veteran having served in the Seventh Special Forces Group in the 

Dominican Republic during the American intervention, and later as a 

member of the Fifth Special Forces Group in Vietnam (1966-1967). He 

returned to Vietnam on a special assignment in 1968 to serve as a member of 

the Long Range Planning Task Group; he remained with the Group until the 

end of 1969 receiving the Department of the Army's highest award for his 

service. Mr. Jenkins returned to Vietnam on a third special assignment in 

1971. 

In 1984, Mr. Jenkins served as an advisor to the Long Commission, created 

to investigate the 1983 bombing of the U.S. Marines Barracks in Beirut. In 

1985, he served as an advisor to the Inman Panel (the Secretary of State's. 

Advisory Panel on Overseas Security). In 1986, he served on the 

commission to establish new security specifications for the Embassy of the 

Future. And in 1989-90, he was an advisor to the Presidential Commission 

on Aviation Security and TeiTorism created to investigate the PanAm 1 03 

bombing. 
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Since the early 1970s, Jenkins has served as a consultant in a number of 

negotiations to bring about the release of hostages kidnapped for ransom or 

political reasons. In the late 1970s and early 1980s, Me. Jenkins served as a 

consultant to the Italian government and Italian corporations in dealing with 

terrorist attacks. From 1985 to 1986, Mr. Jenkins also served as an advisor 

to the Catholic Church and from 1986 to 1991 as an advisor to the Church of 

England in dealing with the kidnappings of Western hostages in Lebanon. 

Following the World Trade Center bombing in 1993, Mr. Jenkins, while at 

Kroll Associates, was part of the team that identified terrorist threats and 

developed new security measures for the World Trade Center. 

While at Kroll Associates and subsequently as an independent consultant, 

Mr. Jenkins has directed investigations dealing with economic espionage, 

international financial fraud, corruption, and organized crime. 

In 1996, President Clinton appointed Mr. Jenkins to be a member of the 

White House Commission on Aviation Safety and Security. From 1999-

2000, he served as an advisor to the National Commission on Terrorism and 

since 2000 he has served as a member of the U.S. Comptroller General's 

Advisory Board. As Director of the National Transportation Security Center 

at the Mineta Transportation Institute, Mr. Jenkins since 1997 has directed 

the institute's continuing research on protecting surface transportation 

against terrorist attacks. 

Mr. Jenkins has served as a Special Advisor to the International Chamber of 

Commerce and is a member of the board of advisors to the ICC's 

investigative arm, the Commercial Crime Services. Over the years, Mr. 

Jenkins also has served as a consultant to or carried out assignments for a 

number of government agencies. As part of its international project to create 

a global strategy to combat terrorism, the Club of Madrid in 2004 appointed 

Mr. Jenkins to lead the international working group on the role of 

intelligence. He currently is a member of the Aspen Institute's Secretary of 

Homeland Security Advisory Group as well as a member of the World 

Economic Forum's Global Agenda Council on Terrorism. 

Mr. Jenkins is the author of International Terrorism: A New Mode of 

Conflict (1974). the editor and co-author of Terrorism and Personal 

Protection. (1984) a textbook on kidnapping negotiations). He is the coeditor and co-author of Aviation Terrorism and Security (1998}. and a co-
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author of The Fall of South Vietnam (1976). He is the author of 

Unconquerable Nation: Knowing Our Enemy, Strengthening Ourselves 

(2006), Will Terrorists Go Nuclear? (2008), and The Long Shadow of 9/11: 

America's Response to Terrorism (20 11 ). His latest book is When Armies 

Divide: The Security of Nuclear Arsenals during Coups, Revolts, and Civil 

Wars (2013). 
59 

Mr. DESANTIS. Thank you. 

Mr. Gude, for 5 minutes, you’re recognized. 

STATEMENT OF KEN GUDE 

Mr. GUDE. Thank you, Chairman DeSantis, Chairman Jordan, 

Ranking Member Lynch, and Ranking Member Cartwright, and all 

the members of the committee. I appreciate the opportunity to testify before you today on this critical issue. 

In the wake of the attacks in San Bernardino and also the attacks in Paris, it is important that we understand what is the best 

way forward to improve national security programs that protect the 

American people. In my view, that is to manage and minimize the 

risk rather than an attempt to completely eliminate the risk simply 

because we cannot eliminate a risk in the open society in which we 

live. 

What we should be working on is working together to reassure 

the American people that the steps that we are taking to protect 

them are adequate to manage that risk. And in light of that, I want 

to say about the Visa Waiver Program reforms that were passed 

earlier this week that, while I don’t agree with every aspect of that 

bill, I do think it was in keeping with the working-together aspect 

and identifying genuine vulnerabilities and trying to improve those 

security programs related to those vulnerabilities without shutting 

down access to the United States. 

What I think is unacceptable and dangerous in this time is to try 

and exploit the understandable and reasonable fears of the American people for political gain and push a jittery public towards hatred and prejudice. And I think that not for partisan reasons but 

because it is genuinely dangerous to the American people because 

it plays right into the hands of ISIS. 

Before I get to my specific points about the Visa Waiver Program 

and other aspects of how we can protect the homeland, I want to 

elaborate on why I think it does play into the hands of ISIS to engage in rhetoric and actions directed at Muslim Americans and 

Muslims in the United States. ISIS has an explicit strategy—they 

talk about it in English all the time—to polarize Western societies 

as part of their effort to create a clash of civilizations. Now, their 

interpretation of a clash of civilizations is the West versus Islam, 

with ISIS representing Islam. Now, that is completely erroneous. 

ISIS does not represent Islam. ISIS is not a civilization. We are 

making a mistake to play into that framing of the issue and that 

ideology. 

There can be no justification for joining ISIS. I’m not trying to 

rationalize any decision by anyone that they join ISIS. But we have 

to understand what motivates people to do so. And the alienation 

of Muslim communities in the West is one of the aspects that increases the capability of ISIS to recruit members into their ranks. 

Ignorance of that is not strength. Ignorance of that is a weakness 

on the part of our strategy. And we must do all that we can to 

eradicate that from our policy and our rhetoric. Now, specifically on 

the Visa Waiver Program, while I think it was important to address these vulnerabilities, one aspect that I think is necessary 

should these changes become law is that Congress now has the responsibility to fund and resource the consulates in visa waiver 


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countries to ensure that they can adequately manage what will 

likely be a much higher level of visa applications than they’re traditionally used to because if they are visa-waiver countries, they 

probably don’t have to deal with this very much. And we would not 

want to create that as a barrier to entry into the United States 

simply from a resource problem. 

Getting to another aspect that was addressed or raised briefly by 

Chairman DeSantis, which is the refugee question, I join with Secretary Albright, Secretary Kissinger, many other former national 

security leaders, and I urge the Congress to reconsider the plan 

that would effectively shut down Syrian refugees entering the 

United States. The program is very rigorous. It is the most rigorous 

process to enter the United States of any way that you can enter 

the United States legally. I believe that the program adequately 

manages the risk. And should that come up before this Chamber 

again, I urge you to reconsider. 

Lastly, I want to raise a point that Chairman DeSantis identified 

in his testimony, which is that we have a challenge for people who 

are in the United States and radicalized when they are here, legally or whether they’ve always been here. One of the things that 

I find hard to reconcile with the demand for the virtual elimination 

of the risk from Syrian refugees is an acceptance and tolerance of 

risk that individuals who have been identified as suspected of 

being tied to terrorism can freely purchase weapons in the United 

States. I find that—it’s just hard for me to understand how, on one 

side, we seek to eliminate the risk from Syrian refugees; on the 

other side, we seek to tolerate risk at a very high level of suspected 

terrorists getting their hands on the most dangerous weapons. 

With that, I will conclude. And I look forward to your questions. 

Thank you. 

[Prepared statement of Mr. Gude follows:] 


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Testimony of Ken Gude 

Senior Fellow at the Center for American Progress 

Before 

The House of Representatives Committee on Oversight and Government Reform 

Subcommittee on National Security 

And 

Subcommittee on Health Care, Benefits, and Administrative Rules 

For 

Hearing on Terrorism and the Visa Waiver Program 

December 10,2015 

Thank you Chairman Chaffetz, Ranking Member Cummings, the Chairs and Ranking 

Members of the two subcommittees, and all the Members of the Committee on 

Oversight and Government Reform, for inviting me to testify this morning. I am 

grateful for the opportunity to discuss my views on how we can best respond to the 

evolving tactics of ISIS and other terrorist groups to best protect the U.S. homeland 

from attack. 

Improving national security programs that protect the American people is about 

managing and minimizing risk, because it is not possible to completely eliminate the 

risk of violence-whatever the motive-in an open society. The attacks in Paris and 

San Bernardino have understandably caused anxiety among many Americans. It is 

natural to be frightened by such senseless and brutal violence. We cannot help but 

imagine ourselves, our loved ones, our friends caught up in such terror. 

In these difficult times, it is incumbent upon political leaders to reassure the 

American people that they are taking all of the appropriate steps to keep them safe 

now and in the long term. Our leaders must acknowledge shortcomings and work 

together across the aisle to improve our ability to meet a very real threat. What is 

unacceptable and dangerous to American security are the kind of rhetoric and policy 

proposals that attempt to exploit Americans' reasonable fears for political gain and 

try to push a jittery population toward increased hatred and prejudice. This 

distracts from real security needs with sensational fear mongering not based on 

facts and only plays into the hands of ISIS. 

In addition to the responsibility to protect Americans, good governance requires 

that policymakers constantly strive to improve security measures and the efficacy of 

programs designed to screen entry into the United States, not only after new threats 

emerge, but all the time. Policy changes driven largely by fear in the immediate 

aftermath of terrorist attacks rarely prove wise in the medium and long term. While 

the vote to enhance the security procedures in the Visa Waiver Program on Tuesday 

was more measured and focused than other previous examples, it did move quickly 

and without process established to reconsider them should the security 

environment change. Even so, these changes addressed some potential 

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vulnerabilities without overly damaging a program that is vital to America's 

economic prosperity and openness. 

Towards that end and at the direction of President Obama, the Departments of State 

and Homeland Security is now reviewing the K-1 visa program that allows fiancees 

of American citizens to enter the U.S. and was the program used by one of the 

alleged shooters in San Bernardino. 

Additionally, we should be looking at other common sense reforms that would 

enhance the security of Americans, such as exploring public-private partnerships to 

increase our ability to combat terrorist recruiting online and steps to make it more 

difficult for those suspected of involvement in terrorism from being able to 

purchase the most dangerous weapons. 

What we must avoid, however, is the kind of knee-jerk reaction in both our policies 

and our rhetoric that only plays right into the hands of ISIS. A centerpiece of ISIS 

strategy in the West is to provoke an anti-Muslim backlash by Western societies. 

ISIS leaders state this explicitly in their doctrine and their publications. They see an 

anti-Muslim backlash in the west as necessary to move the world toward their main 

narrative of a clash of civilizations between the West and Islam, with ISIS 

representing the only valid form of Islam. 

We can and must be ruthless in defeating ISIS and the abhorrent ideology that 

drives it. Most of that effort must be undertaken at its source, in Syria and Iraq 

working with our allies and partners in the region. We can only do that if we join 

together with the overwhelming majority of Muslims that hate ISIS just as much-or 

more-and are dying in far greater numbers under the brutal assault of ISIS. Only 

our combined strength can destroy this terrorist group. 

Anti-Muslim Backlash Is a Threat to American Security 

Hateful rhetoric and discriminatory policies that target Muslims are morally wrong 

and genuinely threaten the safety of Muslims in the United States. We have already 

seen an increase in hate crimes and discrimination against American Muslims. 

Beyond these very important concerns about lslamophobia, too little attention is 

paid in our policy and political debates to the clearly stated goal of ISIS to provoke 

Western societies to alienate their Muslim populations through words and deeds. 

The horrific violence that was, for a time, limited to ISIS's main area of operations in 

Iraq and Syria has recently spread to countries near and far. The bombings in 

Ankara and Beirut, the downing of a Russian airliner over Egypt's Sinai Peninsula, 

and the bombings and shootings in Paris mark a shift in ISIS's strategy to take its 

war to the next stage.l We do not yet know the full extent of the connection of ISIS to 

the San Bernardino shootings or whether ISIS leadership played any role in 

directing that attack. In any event, these planned attacks are not merely the actions 

of nihilists or random killings to slake a rampant bloodlust. Rather, according to 

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jason Burke, journalist and author of numerous books on AI Qaeda and other 

terrorist groups, ISIS has three goals: to terrorize, mobilize, and polarize. 2 

The first objective of any terrorist organization, including ISIS, is to intimidate 

civilian populations and force governments to make rash decisions that they 

otherwise would not choose. William McCants, a scholar at The Brookings 

Institution, wrote in the wake of the Paris attacks that the leaders of ISIS "have 

thought long and hard about the utility of violence and the value of scaring ordinary 

people."3 By denying us freedom from fear, terrorists hope we will dismantle our 

other freedoms- like the freedom of religion, speech, or assembly- and be drawn 

into a conflict that saps our strength in the Middle Eastern desert. Fear driven by 

brutality is an effective method of social control. 

The strategic mastermind behind the rise of ISIS, a former colonel in Sad dam 

Hussein's Iraqi intelligence service who went by the pseudonym Haji Bakr, plotted 

ISIS's growth through the systematic application of incredible violence. 4 Haji Bakr's 

plan called for "the elimination of every person who might have been a potential 

leader or opponent."5 It proved successful in gaining control of the Syrian city of 

Raqqa, and under Bakr's leadership, ISIS began using this strategy to expand to 

areas outside of its original base in Syria and into Iraq. This provided the basis for 

declaring a caliphate in June 2014. 

ISIS's second objective is to motivate its supporters and enhance its legitimacy in 

the areas where it has seized control. A 2004 essay called "The Management of 

Savagery"-written by Abu Bakr Naji for the precursor to ISIS, AI Qaeda in Iraqoutlined many elements of the strategy that ISIS now pursues. It describes that "its 

specific target is to motivate crowds drawn from the masses to fly to the regions 

which we manage, particularly the youth."6 

Scott Atran, the director of research at France's National Center for Scientific 

Research, wrote of ISIS that the complexity of the Paris attacks and the clear success 

at recruiting French and EU nationals "enhances its legitimacy in the eyes of its 

followers." 7 Multiple teams operating in different areas of the city, attacking 

simultaneously and with varied methods, recalls spectacular terrorist attacks such 

as M umbai in 2008 or 9/11 and demonstrates disciplined military tactics. ISIS said 

of the recent attacks that it left "Paris and its residents 'shocked and awed,"' clearly 

a reference to the U.S. description of the bombing campaign in Iraq in 2003, as well 

as how ISIS hoped the attacks would be received among its supporters. a 

The third objective, which Burke describes as "the most important," is to generate a 

response that will alienate Muslim populations from their governments, particularly 

in the West, and thus increase the appeal of the ISIS caliphate among them.9 Harleen 

Gambhir of the Institute for the Study of War, identifies this as part of"ISIS's plan to 

eliminate neutral parties through either absorption or elimination, in preparation of 

eventual all-out battle with the West."lO 

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Preparation for that all-out battle is central to understanding how ISIS sees the 

world. Its English-language magazine, Dabiq, is named after a Syrian city featured in 

a prophecy in which, according to McCants, the Prophet Muhammad "predicts the 

Day of judgment will come after the Muslims defeat Rome at al-Amaq or Dabiq." 11 

An essay in the February 2015 edition of Dabiq describes the world as comprised of 

"two camps before the world for mankind to choose between, a camp of Islam ... and 

a camp of kufr-the crusader coalition."12 In between those two camps is something 

that ISIS calls "the grayzone," composed of either "hypocrites" or "'independent' and 

'neutral' Islamic parties that refuse to join the Khilafah [Caliphate, or ISIS]."13 

It is theM uslims in this so-called grayzone that are the target of the ISIS effort at 

polarization. The essay in Dabiq cited above is titled "The Extinction of the 

Grayzone." ISIS uses the existence of its self-described caliphate in Iraq and Syria 

and its terrorist attacks outside of its area of operations to compel "the crusaders to 

actively destroy the grayzone themselves."14 This will happen, ISIS argues, because 

"Muslims in the West will quickly find themselves between one of two choices, they 

either apostatize ... or they perform hijrah [emigrate] to the Islamic State f!SIS] and 

thereby escape persecution from the crusader governments."ls ISIS wants a clash of 

civilizations between itself and the West, after all Muslims have either abandoned 

the faith or joined ISIS. Essentially, the subsuming of all existing Muslim nations into 

the caliphate is a precursor to the final war with the rest of humanity. 

Access and Screening on Entry to the United States 

Many of the changes to the Visa Waiver Program that passed the House this week 

represent the right way to go about adopting new security measures at our borders 

and beyond-increasing intelligence gathering capabilities and tightening security 

protocols, but importantly, not shutting down whole programs or denying access in 

an arbitrary manner. I may not agree with every aspect of the bill and would have 

preferred a mechanism that would have required Congress to revisit some of these 

changes in the future. Critically, however, the impact of the changes only adds levels 

of screening to the entry process and still provides a pathway into the United States 

for all affected individuals should their visa application be approved. 

The K-1 visa program that allows fiance( e )s of United States citizens to enter the 

country provided they intend to marry within 90 days of entry has come under 

scrutiny because one of the alleged shooters in the San Bernardino attack entered as 

the fiance of the other shooter. Although we do not yet know whether any 

derogatory information could have been obtained had the background and security 

checks been more rigorous than they already are-we do not, at this point, know the 

trajectory of the couple's radicalization, for instance-it makes sense to step back 

and assess the current background and security check process. 

I recognize that the House has already acted on this issue, but should it come before 

this body again, I join with former Secretaries of State Henry Kissinger and 

Madeleine Albright, and former Generals Michael Hayden and David Petraeus, and 

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urge the House to reconsider its action to effectively shut down the Syrian and Iraq 

refugee programs. 

This action was taken in great haste in the wake of the ISIS attacks in Paris and with 

incomplete information about the role, if any, Syrian asylum seekers played in that 

attack. With the benefit of a little more time and hindsight, it is now possible to 

recognize that this program has sufficient safeguards to adequately manage the risk 

associated with accepting Syrian and Iraqi refugees. The system of screening and 

background checks for Syrian and Iraqi refugees is already the most rigorous for any 

entry system into the United States. Each refugee goes through 21 separate steps 

before being admitted into the United States, a process that takes on average two 

years. 

Shutting down this program in an effort to eliminate any risk associated with Syrian 

and Iraqi refugees would be counterproductive. It would only intensify the pressure 

on countries in the region and our European partners and contribute to the cycle of 

destabilization that would likely exacerbate the refugee problem in the future. Thus 

the pursuit of a zero risk policy may actually increase the risk rather than eliminate 

it. 

At the same time, we should always explore ways to improve the security check 

process. The administration could direct law enforcement and intelligence agencies 

to devote greater staff and resources to the background and security check process. 

Congress should support those efforts through increased appropriations. The United 

States also could help to lead a multilateral effort to initiate more intelligencegathering efforts in the refugee camps. This could be done by conducting more 

interviews and collecting more biometric and biographic data. 

Other Steps to Protect the Homeland 

The ability of terrorist groups like ISIS to use modern communications technology, 

particularly social media, to transcend national boundaries, spread their messages 

of hate and violence, and recruit new members has prompted fresh calls for 

technology companies to do more to fight terrorism. There is likely more than can 

be done, for example, greater resources devoted to working with law enforcement 

and intelligence agencies to block ISIS and other terrorist affiliated social media 

accounts spreading hateful propaganda. 

It is, however, a policy debate that should be approached with caution. First, often 

the best way to identify suspected terrorists is through monitoring known social 

media accounts linked to terrorist groups. There is a risk that we may inadvertently 

shut down a critical path for detecting and preventing terrorist attacks. Second, 

these issues are extremely complex and given the technology involved there is little 

understanding of the appropriate trade offs between security and privacy involved 

in certain decisions. 

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Both House Homeland Security Committee Chairman Michael McCaul and Senate 

Minority Leader Harry Reid have recently and separately propose a national 

commission to examine the issues related to security, privacy, social media 

communications, and encryption in the context of the current threats we face.1 6 

Such a commission could be the ideal forum to give these issues the level of 

consideration they need and deserve. 

One common sense reform that would help manage the risk of additional terrorist 

attacks is making it more difficult for those suspected of links to terrorism to 

purchase the weapons of mass murder. Current federal law prohibits access to 

firearms for nine categories of dangerous people in the United States but inclusion 

on the consolidated terrorism watch list is not one ofthem.17 

We know that international terrorist groups are seeking to exploit this vulnerability. 

For example, anal Qaeda video tells its followers that, "America is awash with easily 

obtainable firearms ... So what are you waiting for?" 18 The GAO found that that 

individuals on the terror watch list were successfully able to purchase a firearm 

more than 2,000 times over a ten-year period.19 

Opponents of this measure-often the same people that demand zero risk on 

refugees-claim that the terrorism watch list "contain a significant number of 

errors," of people that should not be on the lists and therefor should not be used to 

restrict the ability to purchase weapons.2o That argument accepts a level of risk 

associated with the possibility that a suspected terrorist could easily purchase the 

most dangerous weapons is very hard to reconcile with the demand of zero risk in 

other areas. 

Additionally, concern that the terrorism watch list has too many false positives can 

be overcome with a strong process that allows individuals erroneously denied a gun 

to reverse the decision and be removed from the watch Jist. Rep. Peter King and Sen. 

Dianne Feinstein have a bill that would establish such a robust process while at the 

same time prevent those the government suspects of links to terrorism of 

purchasing the kinds of weapons used in the San Bernardino attacks. The fact that 

the alleged perpetrators were not on a terror watch list or no-fly list should not give 

us comfort when thousands on those lists are buying weapons. 

Conclusion 

ISIS is not going to win this war. Its apocalyptic worldview and horrific violence will 

always prevent the group from obtaining broad support from any population, even 

if they are cowed into submission under ISIS brutal control. Ultimately, there is no 

amount of alienation or discrimination that could drive sufficient numbers to ISIS to 

affect the ultimate outcome of this conflict. What is in doubt is the duration of the 

battle and how bloody it will be. 

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To best protect the homeland, we must manage and minimize the risk of terrorist 

attack by constantly examining our security structures and enacting measured 

reforms when new vulnerabilities emerge. The worst way to protect the homeland 

is to engage in wild demagoguery and lslamophobia that has too often typified the 

public debate in the wake of Paris and San Bernardino. 

Should the United States fail to snap out of this spasm of anti-Muslim sentiment that 

has followed in the wake of the Paris attacks, then the level of alienation that is 

currently more prevalent in Europe could become common here. This would 

provide ISIS with additional fuel to prolong this war and increase the loss of 

innocent lives. If, however, the United States and other Western societies view our 

fellow citizens-who happen to be Muslim and want freedom, democracy and 

justice as much as we do-as our partners in defeating the objectives of ISIS, and if 

we make common cause with the overwhelming majority of Muslims around the 

world who want to destroy ISIS, then this will be a shorter conflict with far fewer 

lives lost. 

We cannot account for the utter barbarism of ISIS. But we are in complete control of 

how we react to it. 

1 Eric Schmitt, "Paris Attacks and Other Assaults Seen as Evidence of a Shift by ISIS," 

The New York Times, November 22, 2015, available at 

http: //www.nytimes.com /2015/11/23/world /europe/paris-attacks-isis-threatenswest.html? r=1. 2 jason Burke, "Islamic State 'Goes Global' with Paris Attacks," The Observer, 

November 14, 2015, available at 

http: //www.theguardian.com /world /2015/nov /14 /islamic-state-goes-globalparis-attacks. 

3 Will McCants, "How the Islamic State Declared War on the World," Foreign Policy, 

November 16, 2015, available at https://foreignpolicy.com/2015/11/16/how-theislam ic-state-d eel a red-war-on-th e-wo rid -actual-state/. 4 Christoph Reuter, "Secret Files Show Structure of Islamic State," Spiegel Online 

International, April18, 2015, available at 

http: //www·.spiegel.de /international/world /islamic-state-files-show-structure-ofislamist-terror-group-a-1 02927 4.html. 5 Jbid. 

6 William McCants, translator, "The Management of Savagery by Abu Bakr Naji" 

(Cambridge, MA: john M. Olin Institute for Strategic Studies at Harvard University, 

2006), available at https: //azelin.files.wordpress.com/201 0 /08/abu-bakr-naji-themanagement-of-savagery-the-most-critical-stage-through-which-the-umma-willpass. pdf. 7 Scott Atran and Nafees Hamid, "Paris: The War ISIS Wants," The New York Review 

of Books, November 16, 2015, available at 

http: //www.nybooks.com /blogs /nyrblog /2 015/nov /16 /paris-attacks-isisstrategy-chaos/. 

7 
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8 Madison Pauly, "The Latest Issue of ISIS's Magazine Is As Terrible As You'd Think," 

Mother jones, November 18, 2015, available at 

http: 1/wvvw.motherjones.com /mojo /2015 I 11 /isis-magazine-dabiq-paris-beirutrussia. 

9 Burke, "Islamic State 'Goes Global' With Paris Attacks." 10 Harleen Gambhir, "ISIS Global Intelligence Summary: january 7- February 18" 

(Washington: Institute for the Study of War, 2015), available at 

http://www.understandingvvar.org/sites/default/files!INTSUM Summary update.p 

df. 

11 William McCants, "ISIS Fantasies of an Apocalyptic Showdown in Northern Syria," 

The Brookings Institution, October 3, 2014, available at 

http://www. brookings.edu /blogs /markaz /posts /2014/10/03-isis-apocalypticshowdown-syria-mccants. 

12 1SIS, "The Extinction of the Gray Zone," Dabiq, February 2015, available at 

https: I /ansarukhilafah.wordpress.com /2 015/02/14 /thc-extinction-of-thrgrayzone/. 

13 lbid. 14 lbid. 15 Ibid. 

16 julian Hattem, "Homeland Chair Moves to Rein In 'Dark' Networks," The Hill, 

December 7, 2015, available at: http: //thehill.com/policy/cybersecurity/262322-

homeland-chair-moves-to-rein-in-dark-networks And, Office of Senator Harry Reid, 

"Senate Democrats Announce Legislation to Defeat ISIS And Keep America Safe," 

Press Release, December 7, 2015, available at: 

http: //www.reid.senate.gov /press releases/2015-12-07 -reid-senate-democratsann o u n ee-l egislatio n-to-defeat-is is-and-keep-america-safe 17 Center for American Progress, "The Terror Gap," Fact Sheet, November 20, 2015, 

available at: http: !/www.reid.senate.gov /press releases/2015-12-07 -reid-senatedemocrats-announce-legislation-to-defeat-isis-and-keep-america-safe 

18 Sudip Bhattacharya, "AI Qaeda Video Resurfaces Urging Radicals to Buy Guns in 

U.S," CNN.com, April12, 2013, available at: 

http: //www.cnn.com/2013 /04/11 /politics /al-qaeda-video/index.html 

19 Center for American Progress Fact Sheet, at note 17. 

zo Shahien Nasiripour, "Rubio Questions Legitimacy of Terror Watch Lists," The 

Huffington Post, December 6, 2015, available at: 

http: I lwvvw.huffingtonpost.com I entry /rubio-terror-watchlists 566442c1e4b072e9d1c67df3 

8 
69 

Mr. DESANTIS. Thank you. Thank you. 

The chair now recognizes himself for 5 minutes. 

Ms. Kephart, given the recent events in Paris, what improvements could be made to the vetting process for visa applicants generally in order to protect the security of the United States? And 

what lessons are there to be learned with regard to our immigration system from past terrorist attacks? 

Ms. KEPHART. I think the visa system itself—do you want the 

visa-free system or the visa system? 

Mr. DESANTIS. Both. Because I think that we have to look at the 

visa system in order to evaluate the visa-free system. I think 

there’s problems with both. 

Ms. KEPHART. Right. So, on page 14 of my written testimony, I 

have a chart there which pulls together the elements that visa has 

today and the visa process has today that the ESTA process for 

visa-free travel does not. There are a number of elements there I 

think in the visa travel that can be brought into the visa-free. The 

biggest one I think—without demeaning the value of the ESTA 

process itself because it does have value—is to add the biometric 

screening to it. I think it’s very difficult to do that necessarily with 

the individuals within the Visa Waiver Program. You really have 

to do that in a controlled environment, which is why I recommend 

preclearance be a mandated requirement for VWP status. 

So, for visa-free, I think adding the biometric and the vetting before they travel to the United States and make that a complete vetting process, what you’re not going to get with that, which visas 

do have today, is the interview necessarily, although you could 

have secondary inspection available there. And you’re not going to 

have that time to do what they do at consular offices now, which 

is, for those that have it, the visa security units that do the extra 

immigration check through ICE, HSI, or the National Counterterrorism Center intelligence checks. You’re not going to have that 

ability to do an in-depth, in-your-own-time check. 

The visa process I honestly think has done a really good job, the 

State Department, of bettering itself over the course of time. The 

one thing that has happened is they’ve peeled back a little bit on 

the interviews. And they made some requirements there. 

Mr. DESANTIS.They —missed Tashfeen Malik, who had been 

going back and forth—— 

Ms. KEPHART. Yeah. Yeah. 

Mr. DESANTIS. —from Saudi Arabia to Pakistan and had been 

radicalized—now they say—before she came here. 

Let me just ask you this. We passed a bill this week. That does 

not—that bill may be a first step, but that does not solve all the 

problems, correct? 

Ms. KEPHART. That’s correct. 

Mr. DESANTIS. And we talk about some of these other countries. 

But a country like Belgium does not really do a very good job at 

providing the type of information that we would expect in order to 

be sure that the people who are getting visa-free travel. So somebody in a place like Molenbeek, they can basically, even under this 

bill, they’re still going to be able, if they have a passport, to come 

to the United States. Is that your understanding? 

Ms. KEPHART. Yes. 


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Mr. DESANTIS. Ms. Burriesci, senior DHS officials told the Government Accountability Office in April of 2013 that the Department 

had not reported overstay rates because it did not have sufficient 

confidence in the quality of the overstay data. And so they said 

that they couldn’t reliably report overstay estimates in accordance 

with the statute. The GAO went on to link the lack of confidence 

in overstay data to current biographical data system and lack of a 

biometric system to verify the identities of alien travelers. Why did 

DHS officials tell the GAO that it did not have confidence in the 

biographic system in 2013? 

Ms. BURRIESCI. During that time, we were still working to connect some systems, some biographic systems, to exchange data between agencies within DHS. And one of the issues, once you are 

enhancing your systems, you can’t kind of go back and see the data 

that, you can’t unfix what you, what was in the past. So we have 

worked the last several years to improve those data exchanges and 

make sure that data is flowing in order to be able to develop accurate numbers moving forward. 

Mr. DESANTIS. So you have confidence in it now, unlike Secretary Napolitano did not have confidence, you think now, standing 

here today, that the system is good and trustworthy? 

Ms. BURRIESCI. We have certainly increased confidence since that 

time, absolutely. 

Mr. DESANTIS. But that may not be sufficient. 

Let me ask you, Ms. Kephart, to comment on specifically, if a terrorist it able to come through the Visa Waiver Program, supposed 

to be here 90 days, but in point of fact if they come here and they 

need a 6-month time period in order to orchestrate and conduct an 

attack, is there really a significant risk to them that they are going 

to be removed from this country on the 91st day? 

Ms. KEPHART. Not unless they come across criminal law enforcement and there’s some connection to a terrorist watch list, no. 

Mr. DESANTIS. Exactly. 

Let me ask Mr. Jenkins and Ms. Burriesci. Is DHS currently— 

well, let me ask Ms. Burriesci this first one—is DHS currently 

monitoring individuals who have recently traveled to countries, 

such as Syria and Iraq, where radicalization or training efforts are 

obviously readily apparent? 

Ms. BURRIESCI. So if there was continuous travel that had a 

nexus to the United States, we would certainly have that information. If there’s not a nexus to the United States and, say, one of 

our VWP countries are aware of that travel, they are absolutely reporting foreign fighter information to us. That’s one of the benefits 

of the VWP program. 

In cases if it’s unknown to the VWP country, unknown to the 

United States, there’s no nexus; that is a potential that we would 

be unaware of that travel. That’s why when individuals travel to 

the United States, we also do have algorithms running in the background for the checks that we do conduct to do our best to match 

up what we might term as, like, broken travel because it doesn’t 

have that nexus. 

Mr. DESANTIS. Let me ask Mr. Gude, one of the statements in 

your report was from a woman who said ISIS wouldn’t be here if 

there wasn’t Islamophobia. Do you believe that that statement is 


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true? In other words, would you subscribe the motivation for the 

World Trade Center bombing in 1993 to a reaction against 

Islamophobia? 

Mr. GUDE. No. 

Mr. DESANTIS. What about the Khobar Towers in 1996? No, correct? 

Mr. GUDE. No. But what I would say—— 

Mr. DESANTIS. The 9/11 attack? 

Mr. GUDE. I’m sorry? 

Mr. DESANTIS. The 9/11 attack? 

Mr. GUDE. No. 

Mr. DESANTIS. Right. So these people have an ideology independent of anything, our policies or what we do. I mean, do you 

agree with that? 

Mr. GUDE. I certainly do. But I would say that simply because 

they have their own motivations, they certainly don’t need an excuse to attack us. And, again, I’m not trying to rationalize any decision to do so. But I think our own ignorance about what does motivate them in some way and what does alienate populations, particularly in Europe, they have a much more serious problems with 

this in Europe than we do here in the United States, but this, if 

we create a system or we create a situation in which Muslims feel 

like they need to be separated from society, that makes it much 

more easy and makes them—some of them—much more susceptible 

to the kinds of sophisticated recruiting techniques that ISIS employs and not—and we should be making it harder for them, not 

easier. 

Mr. DESANTIS. What strikes me is that some of the people who 

have been very successful terrorists have been educated, you know, 

middle, higher income people that actually had a lot of opportunities. And so I’m not saying that we don’t need to be sensitive to 

the broader populace. But I think that it’s not something that is 

being done necessarily in reaction to our policies. 

And you talked about managing the risk of terrorism rather than 

eliminating the risk of terrorism. And you cited the refugee—you 

acknowledge that there is risk with the refugee program, given the 

FBI Director’s statements that they cannot vet all the people that 

are coming. 

Mr. GUDE. Of course, there’s risk. And that’s why they established the most rigorous screening system. 

Mr. DESANTIS. But it’s a screening system, as Mr. Jenkins points 

out. Some of the people who have come and have committed terrorist acts have come through the refugee program. I think the 

question is, what is your tolerance for risk? I think most Americans, if they think that there’s a chance, even if you’re 99 percent 

accurate out of 10,000 people that you’re bringing over here, and 

you’re talking about 100 people that you’d be bringing into the 

country that would potentially do harm. So I think how you deal 

with the risk, I think that your testimony suggests you would have 

more tolerance than I think most Americans would be. 

I’m out of time. Let me recognize Mr. Lynch for 5 minutes. 

Mr. LYNCH. Thank you, Mr. Chairman. 

I want to thank all the witnesses. You’ve already been helpful in 

some respects. I do want to go over our vetting process and screenVerDate Nov 24 2008 10:50 Jul 13, 2017 Jkt 000000 PO 00000 Frm 00077 Fmt 6633 Sfmt 6633 H:\25881.TXT APRIL

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ing process because there’s some statements out there that are 

really in conflict. Some of the witnesses have pointed to the weaknesses. Others have pointed to the strengths. 

In one of our previous hearings, we had the Department of 

Homeland Security Inspector General John Roth testify both before 

our committee and before Homeland Security. Before the Homeland 

Security Committee in June, he pointed out that, despite rigorous 

processes, that TSA did not identify 73 individuals with links to 

terrorism because TSA was not cleared to receive all the terrorism 

databases that other agencies had and did not have access to current interagency watch list guidance. So the Office of Inspector 

General did something very simple, he asked for the TIDE list, the 

terrorist, you know, terrorist—T–I-D–E. 

Ms. BURRIESCI. Identities Datamart Environment. 

Mr. LYNCH. There you go, Terrorist Identities Datamart Environment. It’s basically the terrorist watch list. He took that list, and 

then they did a merge with people who were working in secure locations at our Nation’s airports. So they merged the two lists. And 

there were 73 individuals who were on both lists, the TIDE list, 

and they were working in secure locations with credentials, you 

know, they had those credentials around their necks working at secure locations. So that makes me worry. That makes me worry 

that—now, I originally thought they were DHS employees—and I 

was wrong—because DHS was screening them. But they were actually working for contractors within the airport, airlines, or maintenance people. But the problem is, you got these people who are on 

the terrorist watch list and they’re working in secure areas at the 

airports; scares the hell out of me. 

So now we have this situation going on with the Visa Waiver 

Program. And we’re screening them. Now, in fairness, OIG, the Office of Inspector General, Mr. Roth said he did not fault TSA because they didn’t have access to that intel; they weren’t given those 

lists. So I’m not going to hold their feet to the fire here, because 

they didn’t have the information. But I damn well am sure they’re 

going to get it because we can’t have that happening. 

So, Secretary Burriesci, have we, because of that situation, and 

also DHS said at the time: Okay, we got to straighten this out. 

We’re going to take steps. We’ll do a deep dive on these 73 people, 

figure out what the indicia of terrorist connection is, and take appropriate action. 

And I am assuming that that has happened. I hope that’s not a 

leap of faith. Nevertheless, the vetting process, the screening, have 

we got that straightened out so that all the bad guys are on the 

lists that all our people see who are screening? 

Ms. BURRIESCI. I’ll start by saying the interagency does the very 

best it can to make sure we have the most solid, consolidated terrorist watch list. And I believe the United States has the best terrorist watch list. The Terrorist Screening Database is the United 

States Government’s consolidated terrorist watch list. That is a different database than TIDE, the one you mentioned. TSA does 

screen all airport workers, as well as all of its other credentialed 

populations, against the terrorist watch list. 

Mr. LYNCH. Okay. Now, just for my own education, was the National Counterterrorism Center that did this merge that allowed 73 


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people with secure, you know, credentials in the airports that are 

on the TIDE list, is that list better? Is it the serious characters? 

Is it a—I know one of these lists is 900,000 people. I think that’s 

the TIDE list, right? So is the broader list better? Or is the narrowest list better? What is the distinction here? 

Ms. BURRIESCI. So the terrorist watch list, the Terrorist Screening Database, owned and operated by the Terrorist Screening Center, holds all of the known and suspected terrorists. That’s our bad 

guy list. That’s what we’re going to screen all of our credentialed 

population—— 

Mr. LYNCH. So the people at the National Counterterrorism Center, they don’t have bad guys? 

Ms. BURRIESCI. The TIDE database, yes, has all the people in the 

Terrorist Screening Database in it, as well as other individuals. 

And I highly recommend you have a closed session with NCTC to 

discuss that because they can go into significant detail with you. 

Mr. LYNCH. We’ve had them in. Just so you know, we had them 

in. Just so you know, there are no good guys on that list that was 

given to me. Are you saying that there’s good guys on that list? 

Ms. BURRIESCI. On which list? I’m sorry. 

Mr. LYNCH. The National Counterterrorism Center’s TIDE list. 

Ms. BURRIESCI. I’m saying that there are individuals who have 

been cleared and have no nexus to terrorism. And we make sure 

that we do not—— 

Mr. LYNCH. While they’re on the list or after they’ve been cleared 

from the list? 

Ms. BURRIESCI. I highly recommend that you have a in detailed 

session with them because—— 

Mr. LYNCH. As long as you’re not putting a fiction out there that 

we’ve got good guys on one list that we’re using, as long as you’re 

not saying that. 

Ms. BURRIESCI. Sir, we recurrently vet all individuals against the 

Terrorist Screening Database that have access to our secure areas 

of our airports. It’s recurrently vetted. TSA will know in real 

time—— 

Mr. LYNCH. Just to be clear because if the National Counterterrorism Center has a list of good guys, then we’re in serious trouble. 

I need to drag them in here and say: What are you doing? I wish 

I had them here now because we have—— 

Ms. BURRIESCI. They could go into detail in a closed session on 

anything. I’m sure they would be happy to do that. 

The OIG report wasn’t about individuals though. And I did want 

to correct that. It was records. So when TSA did an additional 

scrub, it was less than that. 

Mr. LYNCH. It was 69 instead of 73. Are you going to hang your 

reasoning on that argument? 

Ms. BURRIESCI. Absolutely not. 

Mr. LYNCH. Okay. So it’s 69 and not 73. I’ll give you that. 

Ms. BURRIESCI. And TSA has access to the TIDE database as 

well. What they’re seeking, what the OIG’s report was alluding to 

is giving them automated access. So just to clarify, there are some 

nuances. 

Mr. LYNCH. Yeah. Well, I bristle at the fact that I got pushback 

that I was wrong because these were contractors that were in seVerDate Nov 24 2008 10:50 Jul 13, 2017 Jkt 000000 PO 00000 Frm 00079 Fmt 6633 Sfmt 6633 H:\25881.TXT APRIL

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cured areas with security credentials and they weren’t DHS employees, like that’s somehow vitiates the blame here. The idea is 

that you have people on the terrorist watch list working in secure 

areas at the airports. That’s the point I’m trying to get at. It’s the 

vetting process, the screening process that we are being told over 

and over again that is so robust and impervious. So let’s work together here. And let’s not be in denial. Let’s just say: Okay, we got 

some stuff we need to fix. And let’s fix it. I’m with you. 

Ms. BURRIESCI. Sir, I’m always willing to fix anything in terms 

of security. 

Mr. LYNCH. All right. 

Ms. BURRIESCI. DHS’ mission is to prevent terrorism. I just 

wanted to clarify—— 

Mr. LYNCH. All right. 

Ms. BURRIESCI. —that those individuals were not on the terrorist 

watch list. 

Mr. LYNCH. Wait a minute. Well, I need to go back here again. 

They are on the National Counterterrorism Center’s list of people 

with connections—let me read what the inspector general said 

again. 

And you missed them. You missed them. You didn’t have the 

chance to even review what they were guilty of because you completely missed them. So you didn’t vet them. That’s why they’re 

working at the airports. 

Let me just go back to what the inspector general did. He pointed out that, despite rigorous processes, TSA did not identify 73 individuals with links to terrorism because TSA is not cleared to receive all terrorism categories. 

Hello. So you didn’t vet them. How do you know they were good 

guys? 

Ms. BURRIESCI. And all I’m clarifying, sir—I’m not disputing 

what you read in the OIG report. I’m just saying that that—— 

Mr. LYNCH. You are. You are. He just said ‘‘links to terrorism,’’ 

and you’re saying no. 

Ms. BURRIESCI. Because NCTC’s database is not the terrorist 

watch list. The terrorist watch list—— 

Mr. LYNCH. I understand the distinction between the two lists. 

Ms. BURRIESCI. So TSA—— 

Mr. LYNCH. But you didn’t have the other list. TSA did not have 

the other list. 

Ms. BURRIESCI. TSA has access to the list but not in an automated fashion—— 

Mr. LYNCH. This is the problem. Right here, this discussion, you 

and I, this is the problem. This is the problem. 

You’re saying that because these people have links to terrorism 

but they weren’t on that list—they were on another list. So, even 

though they have links to terrorism, you’re going to let them work 

in secure areas of the airport, no problem. Nothing to see here, let’s 

move along. 

Are you kidding me? That’s why we have—look, there is, like, 75 

percent of the American people who don’t believe we have a plan, 

that the administration has a plan to deal with this. This is why. 

This is why. I’m on your side. I’m trying to make this safer, and 


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all I’m getting is resistance that they weren’t on that particular 

list. Give me a break. Come on. 

Let’s work together here just to make the airports safer. And if 

we have a problem, if we have a gap, say, ‘‘We had a gap, we are 

going to fix it,’’ rather than doing this silly dance that they are not 

on the list that you go by. 

Ms. BURRIESCI. Absolutely, sir, I want to work with you. And I’m 

happy to go into detail and—— 

Mr. LYNCH. All right. I’ll yield back. 

Ms. BURRIESCI. —on all the classified pieces—— 

Mr. DESANTIS. The gentleman’s time has expired. 

The chair now recognizes Mr. Russell for 5 minutes. 

Mr. RUSSELL. Thank you, Mr. Chairman. 

We’ve been struggling with the number of folks that are on the 

terror watch list. As Members of Congress, we’re trying to determine what that number is and are having to rely on open source 

information. 

So, Secretary Burriesci, could you, even in ballpark terms, tell us 

what is the size of that list? 

Ms. BURRIESCI. I don’t actually have that off the top of my head, 

but I can get back to you. 

Mr. RUSSELL. Can you give us an estimate where we didn’t have 

to rely on open press reports? Is it between one and a million? I 

mean, what would be your number? 

Ms. BURRIESCI. I really just don’t even want to speculate on a 

wrong number, but I’m happy to call my—— 

Mr. RUSSELL. You can’t even speculate on the size of the list. 

Ms. BURRIESCI. —interagency partners and get back to you on 

that. 

Mr. RUSSELL. Ms. Kephart, would you enlighten us, please? 

Ms. KEPHART. My information is a few years old. I was about to 

meet—— 

Mr. RUSSELL. A few years old. Yeah. 

Ms. KEPHART. —with Mr. Healy of the Terrorism Screening Center a few years ago where he was able to give me information he 

said I could make public. At that time, I did so, and, at that time, 

there were 10,000 to 20,000 terrorists in the U.S., on U.S. soil, that 

the FBI knew about. That’s what I know. 

Mr. RUSSELL. People suspected, that were under suspicion. 

Ms. KEPHART. The folks that were on the terrorist screening 

watch list, to have reasonable suspicion that they were indeed involved with terrorism, that legal level that is a little bit above, in 

terms of evidence, of the TIDE list, which is just a conglomeration 

of people we think could be involved. 

Mr. RUSSELL. Can this committee get a number? I mean, we 

have people of all—— 

Ms. KEPHART. That’s up to the administration, sir. I’m private. 

Mr. RUSSELL. We have the Nation, you know, on every side of 

this issue—407 people on the House floor, I mean, if that’s not darn 

near unanimity, I don’t know what is in this building, that voted 

for this visa waiver protection because we feel that that is where 

the greater threat lies. We can discuss the other aspects. But we 

can’t even get good figures in an open hearing that would be, oh, 

rounded to the nearest 100,000, say. 


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Can you give us a number? 

Ms. BURRIESCI. Sir, I just want to make sure that the number 

is accurate. And I will—— 

Mr. RUSSELL. Oh, sure, but we—— 

Ms. BURRIESCI. —make sure the Terrorist Screening Center is 

responsive to that request. 

Mr. RUSSELL. Okay. Thank you. And I guess we’ll have to rely 

on our First Amendment and reporters that would dig, because, 

you know, we’re just the Oversight and Government Reform Committee. What business is it of ours, constitutionally, to get these 

numbers? 

Could you speak to the passports for sale on Malta, Secretary 

Burriesci? 

Ms. BURRIESCI. I don’t have information on that. 

Mr. RUSSELL. Well, you just gave us some of these concerns in 

your testimony today, such as passports that would be for sale in 

Malta and not going through a vetting process, and that caught my 

attention. So I would like you to comment. 

Ms. BURRIESCI. That was in Ms. Kephart’s testimony. 

Mr. RUSSELL. Oh, I’m sorry, Ms. Kephart. 

My apologies, Madam Secretary. 

Ms. BURRIESCI. That’s okay. 

Ms. KEPHART. So Malta and Cyprus are the two visa waiver 

countries right now that sell citizenship for a price, with no residency requirements and very little vetting. Other countries, including ourselves, also make long-term residency and passports available based on investment. 

But the countries that absolutely sell it outright with no vetting 

procedures in place, I think, are a little bit dangerous. And, of 

course, Malta and Cyprus have had serious financial issues—— 

Mr. RUSSELL. But these are among the 38, Cyprus and Malta—— 

Ms. KEPHART. Yes, they are. They’re visa waiver countries right 

now. 

Mr. RUSSELL. Okay. Thank you so much. 

And, Mr. Chairman, I just want to address one thing that was 

made in some opening testimonies—or, not testimonies, but comments of our committee. As probably the only firearms manufacturer in Congress, there’s a lot of very inaccurate information that’s 

being thrown out there. 

One, if you are a nonresident immigrant alien, you cannot purchase a firearm. If you’re on any visa waiver, it is unlawful, it is 

against the law to purchase a firearm. And you certainly can’t walk 

into any facility and purchase explosives. And I would be happy to 

educate any member on this committee on what 18 U.S. Code is 

on the sale of firearms. We are wasting a lot of time and effort on 

that. 

Mr. Gude, you said that you didn’t totally agree with every aspect of what 407 Members of Congress voted for this last week. I 

would be curious what you didn’t agree with. 

And then you said that we should not be on the hook to fund 

higher standards. Pray tell why other nations should have our 

money when we’re trying to protect our shores. If they want a visa 

waiver, why should we pay for that? Don’t you think they should? 

I am curious to your logic here, sir. Could you please enlighten me? 


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Mr. GUDE. On the last part, I’m not sure I follow that question. 

Mr. RUSSELL. Well, let me reiterate it, with the chairman’s indulgence. You said that we would have to—these, you know, changes 

in the Visa Waiver Program, that we would have to allow, you 

know, funding for these other countries to handle that. 

Mr. GUDE. Yeah, our own consulates in those countries. If you’re 

in a visa waiver—if you’re a consulate in a visa waiver country, you 

probably do not have a large number of staff there to process visa 

applications. So U.S. Government employees in U.S. embassies and 

consulates in visa waiver countries. That was the point that I was 

making. 

Mr. RUSSELL. Well, I think those countries, if they want this, 

that they certainly could assist in the expense of that. And—— 

Mr. GUDE. But excuse me, if I could just—that situation is analogous, sir, it’s exactly the same to what every U.S. embassy and consulate has in a non-visa-waiver country. It shouldn’t be an additional burden; that we would think that if we were going to change 

the rules about how people in visa waiver countries get into the 

United States, I think it’s completely reasonable, then, to say that 

we have to ensure that our U.S. Government offices are fully 

resourced in order to handle that change. 

Mr. RUSSELL. Well, sure. And when you look at China, who is not 

one of the 38 countries, they send a lot of people here. They have 

more people in this country on permanent residencies of some nature than I have in my whole State, as a population. And they 

don’t have the visa waiver. And I think that we can make these 

accommodations and still protect the United States of America. 

And, with that, Mr. Chairman, thank you for your indulgence, 

and my time has expired. 

Mr. DESANTIS. Thanks. The gentleman’s time has expired. 

The chair now recognizes Mr. Cartwright for 5 minutes. 

Mr. CARTWRIGHT. Thank you, Mr. Chairman. 

And, again, I thank the witnesses to this joint subcommittee 

hearing of the Oversight and Government Reform committee. 

You know, my friend Mr. Russell of Oklahoma just intoned the 

phrase, ‘‘We are only the Oversight and Government Reform Committee,’’ and he was saying so quite tongue-in-cheek, and I want to 

amplify on that a little bit. 

You know, all of us, every single Member of Congress, regards 

as our most solemn duty the protection of the American public. 

And we all feel that way on this committee. And I must say that 

I have some very close and dear friends on the other side of this 

dais; we all feel the same way. And we’re all looking for strength 

and unity. And our common purpose is protecting the American 

people. And we’re having this hearing to that end. 

Now, you know, we’ve been talking about vetting processes and 

screening processes. And, you know, here on Oversight and Government Reform, when we take testimony, we have our own vetting 

and screening processes. In fact, one of them is a form that we call 

the Truth in Testimony form, and all witnesses are required to fill 

it out. 

Ms. Burriesci, you’re with DHS—Secretary Burriesci. Is it a correct fact that a company called MorphoTrak has a contract with 

DHS right now? 


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Ms. BURRIESCI. I actually don’t know the answer to that, but I 

can check. I don’t have any contracts in my area. 

Mr. CARTWRIGHT. Well, as a matter of fact, it does. In fact, I have 

a news article here that indicates U.S. Citizenship and Immigration Services, which is a part of DHS, recently entered into a $13.6 

million contract with MorphoTrak for a fingerprint scanning system. 

And I’d like to enter this into the record, Mr. Chairman. 

Mr. RUSSELL. [Presiding.] Without objection. 

Mr. CARTWRIGHT. And this is about you, Ms. Kephart. I’m looking at your financial disclosure on the Truth in Testimony form, 

and I’m going to read it. There are only three questions on the 

form. 

‘‘Please list any Federal grants or contracts you have received 

since October 1, 2012. Include the source and amount of any contract.’’ You wrote, ‘‘None.’’ This is your handwriting; am I correct 

in that? 

Ms. KEPHART. Yes, it is, sir. 

Mr. CARTWRIGHT. Number two, ‘‘Please list any entity you are 

testifying on behalf of and briefly describe your relationship with 

those entities.’’ You wrote, ‘‘No. However, to be clear, I’m testifying 

in personal capacity, although I am with a leading biometric company, MorphoTrak, as of September 2015.’’ 

And then question number three says, ‘‘Please list any Federal 

grants or contracts, including subgrants or subcontracts, received 

since October 1, 2012, by the entities you listed above. Include the 

source and amount of each grant or contract.’’ And you wrote, 

‘‘None,’’ although you had listed MorphoTrak in the immediately 

proceeding answer. 

Ms. KEPHART. Correct. 

Mr. CARTWRIGHT. And I guess the question is, Ms. Kephart, you 

knew we would be counting on you to be completly honest in filling 

out our Truth in Testimony form, didn’t you? 

Ms. KEPHART. And I was, sir. 

Mr. CARTWRIGHT. Okay. 

Ms. KEPHART. This is my 19th time before Congress testifying on 

issues of border security, national security, and—— 

Mr. CARTWRIGHT. Right. So you’re not a rookie here. In fact, 

you’re a lawyer, aren’t you, Ms. Kephart? 

Ms. KEPHART. Yes, I am. And—— 

Mr. CARTWRIGHT. So when you see—— 

Ms. KEPHART. —I was not with MorphoTrak in 2012, sir. 

Mr. CARTWRIGHT. —a Truth in Testimony form that says list the 

entities above that you have contracts with the Federal Government and you wrote, ‘‘None,’’ are you saying that’s correct, even 

though there’s a $13.6 million contract with DHS? 

Ms. KEPHART. Sir, I am testifying in my personal capacity, not 

on behalf of MorphoTrak. So, yes, I filled out the form in terms of 

my personal capacity. However, if you would like me to go back 

and change the form and list those contracts, I’m happy to do so. 

USCIS has nothing to——do with this testimony 

Mr. CARTWRIGHT. Well, what we’re interested in here is that our 

forms get filled out correctly and that we have the complete conVerDate Nov 24 2008 10:50 Jul 13, 2017 Jkt 000000 PO 00000 Frm 00084 Fmt 6633 Sfmt 6633 H:\25881.TXT APRIL

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text. So when we hear from a witness like you—I mean, part of 

your testimony is recommending that we implement—— 

Ms. KEPHART. And my written testimony, sir, includes that discussion on MorphoTrak. I was completely honest. 

Mr. CARTWRIGHT. Part of your testimony is that we implement 

recommendations; three of them are to implement biometrics. 

Ms. KEPHART. Which I have testified about many times. 

Mr. CARTWRIGHT. The company you work for makes and sells biometrics. Are you saying it’s a matter of complete indifference to you 

whether your employer—— 

Ms. KEPHART. Yes. 

Mr. CARTWRIGHT. —gets this business? 

Ms. KEPHART. Yes, sir, I am. 

Mr. CARTWRIGHT. You’re saying it is. Okay. 

Well, here’s the point. House Rule 10 requires this form to give 

committee members, the public, and the press a more detailed context within which to view the testimony. And we expect, Ms. 

Kephart—listen, you’re not a rookie at this. 

Ms. KEPHART. I am happy to go back and redo it, sir. 

Mr. CARTWRIGHT. We expect you to fill out the form correctly so 

that we on the Oversight and Government Reform Committee and 

the American public listening to this testimony can view your testimony and your recommendations in the complete context, not a 

partial context, not a half-truth, the whole truth. 

Will you do that in the future, Ms. Kephart? 

Ms. KEPHART. I will absolutely—if you would like, sir—— 

Mr. CARTWRIGHT. Thank you. 

Ms. KEPHART. —I will redo it today. 

Mr. CARTWRIGHT. I yield back. 

Mr. RUSSELL. The gentleman yields back. 

The chair now recognizes the gentleman from Ohio, Mr. Jordan, 

for 5 minutes. 

Mr. JORDAN. Thank you, Mr. Chairman. 

Ms. Burriesci, earlier this week, the chairman of the Homeland 

Security Committee gave an important speech where he talked 

about extremist groups, terrorist groups that are trying to exploit 

the refugee program. So, like Mr. Russell just a few minutes ago, 

I would like to see if you can give us some numbers just so the 

committee and the American people have this information. 

How many Syrian refugees have entered the United States in the 

last year? 

Ms. BURRIESCI. Sir, I didn’t bring any of the refugee numbers 

with me because I was prepared to talk about visa waiver. But I 

can certainly have us send that to you. 

Mr. JORDAN. Do you know how many Americans have traveled 

to Syria in the last year? 

Ms. BURRIESCI. I don’t have that number on me either. 

Mr. JORDAN. So you wouldn’t know how many Americans have 

traveled and then returned? 

Ms. BURRIESCI. I don’t have that number on me. 

Mr. JORDAN. How many Visa Waiver Program overstays are 

there currently in the United States? 

Ms. BURRIESCI. Sir, I didn’t bring that number with me. 


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Mr. JORDAN. Ms. Burriesci, when I look at the witness list, 

you’ve got the longest title, ‘‘Deputy Assistant Secretary, Screening 

Coordination, Office of Policy, Department of Homeland Security.’’ 

You’ve got the longest title. 

And it says ‘‘Screening Coordination.’’ Now, what screening are 

you coordinating? Is that just intra-agency, or is that interagency? 

Ms. BURRIESCI. It’s both. 

Mr. JORDAN. It’s both. So it’s all of that. 

Ms. BURRIESCI. I coordinate across DHS components as well 

as—— 

Mr. JORDAN. And the two biggest issues right now that we’re 

dealing with relatively, we had these terrible tragedies, terrible terrorist attacks, and we’re talking about the refugee issue and the 

Visa Waiver Program issue, and you can’t give us any numbers on 

either program? 

Ms. BURRIESCI. Sir, I came prepared to talk about the Visa Waiver Program. 

Mr. JORDAN. And I just asked you how many Visa Waiver Program overstays are there, and you said you don’t know. 

Ms. BURRIESCI. Sir, I don’t have a number. The Visa Waiver Program—— 

Mr. JORDAN. So when I ask how many overstays of the Visa 

Waiver Program may have traveled to Syria before they got here, 

do you know that number? 

Ms. BURRIESCI. Sir, if a Visa Waiver Program national has—a 

citizen of a Visa Waiver Program country, rather, has traveled to 

Syria, Iraq, or a conflict zone and they are considered a foreign 

fighter, that VWP country—— 

Mr. JORDAN. I’m not asking that. I’m saying someone from Great 

Britain comes to the United States on a Visa Waiver Program and 

they are now an overstay, do we know if that person, who is here 

today—maybe they’re not even an overstay—do we know if that 

person has been to Syria before they came to the United States? 

Do we know that? 

I mean, I know this is what our bill that we just passed earlier 

this week is trying to get to. I’m asking, do we know that information now? 

Ms. BURRIESCI. So that’s why we have the IC involved and 

there’s an intelligence assessment, and we use—— 

Mr. JORDAN. I wasn’t asking that. Do we know that? Do you 

know the number? 

Ms. BURRIESCI. I don’t know the number, but that’s why I’m trying to explain that the—— 

Mr. JORDAN. But do we have people who are in that category I 

just described, come from a Visa Waiver Program country, they are 

here today and may have been in Syria or Iraq or somewhere there 

before they came here? Do we know that? 

Ms. BURRIESCI. If a citizen of a VWP country has traveled to one 

of those areas, there’s a nexus to United States, or the VWP partners shared that information with us, yes, we know that information, and we will vet against it. We will also use our algorithms—— 

Mr. JORDAN. But could they be here right now is my question. 

Ms. BURRIESCI. I don’t have that answer, sir. 


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Mr. JORDAN. All right. 

Well, how about, can you tell me anything about the no-fly list 

then? You can’t tell me anything about those—how does a person 

get put on—the criteria for that? Can you tell me anything about 

that? 

Ms. BURRIESCI. Sure. The no-fly list is a subset of the overall 

screening database. The interagency works together. The Terrorist 

Screening Database is owned and operated by the Terrorist Screening Center, as I said earlier. There are criteria to get on that that 

are agreed to—— 

Mr. JORDAN. How many American citizens are on that list right 

now? Can you give me that number? 

Ms. BURRIESCI. I’m sorry, sir? 

Mr. JORDAN. How many American citizens are on the no-fly list 

right now? 

Ms. BURRIESCI. I know there are American citizens on the list. 

It is an extremely small number, but I don’t have my numbers with 

me. But, again, that is something I can easily get back to you afterwards. 

Mr. JORDAN. Ms. Burriesci, I’ve asked you the number of Americans who’ve traveled to Syria, you don’t know; the number of 

Americans who may have traveled and returned, you don’t know; 

the number of Syrian refugees who have entered the country in the 

last year, you don’t know; the number of Visa Waiver Program 

overstays, you don’t know; the number of visa waiver overstays 

who may have been to Syria before they came here, you don’t 

know; and the number of American citizens on the no-fly list, and 

you don’t know. 

And yet you are the Deputy Assistant Secretary for Screening 

Coordination, Office of Policy, Department of Homeland Security, 

in front of the Oversight Committee, and you can’t give us one single number to some, I think, pretty basic questions? 

Ms. BURRIESCI. Some of those statistics aren’t held by DHS, and 

so that’s why I would like to work with my interagency partners 

to get you—— 

Mr. JORDAN. That’s why I referenced your title. You’re the one 

who’s the screening coordinator for all this, and you said you were 

interagency. That’s why I referenced your title. It seems to me, 

when you come in front of this committee, you should have that information. 

Ms. BURRIESCI. I’m a DHS employee. I am a DHS career civil 

servant employee. And I will work with my interagency partners, 

but they’re the authoritative source for a lot of those numbers that 

you mentioned. 

Mr. JORDAN. If you could get us those numbers and the ones Mr. 

Russell asked for, that would be very helpful. 

I thank you, Mr. Chairman. 

Mr. RUSSELL. And if I may answer one of your questions, according to the Department of State, for fiscal year 2015, up to the 18th 

of November, there were 1,810 Syrians that had come into the 

country on the refugee program. 

The chair now recognizes the gentlelady from New Jersey, Mrs. 

Watson Coleman. 

Mrs. WATSON COLEMAN. Thank you, Mr. Chairman. 


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And thank you to the witnesses for being here. 

On Sunday, President Obama took the rare step of addressing 

the Nation from the Oval Office to discuss the recent terrorist attacks in San Bernardino and Paris and the rising level of unprecedented violence that the world is facing. 

In Sunday’s address, only his third from the Oval Office, the 

President called on Congress to take specific and immediate steps 

to protect the American public from further acts of terrorism. The 

President, however, was clear that those steps should not be driven 

by fear. 

Here is what he said, and I quote: ‘‘Our success won’t depend on 

tough talk or abandoning our values or giving in to fear. That’s 

what groups like ISIL are hoping for. Instead, we will prevail by 

being strong, smart, resilient, and relentless and by drawing upon 

every aspect of American power.’’ 

The threat of ISIS is real. It is ultimately the goal of ISIS to instill fear, causing us to make decisions we would not otherwise 

make. And we must resist that urge to live in fear. 

Mr. Gude, you have written about the exploitation of fear to influence public policy, and you said something in your testimony 

today that I want to highlight. You said, and I quote, ‘‘What is unacceptable and dangerous to American security are the kind of 

rhetoric and policy proposals that attempt to exploit Americans’ 

reasonable fears for political gain and try to push a jittery population,’’ which is an understatement, ‘‘toward increased hatred and 

prejudice.’’ 

What are the dangers of fear-based policy? 

Mr. GUDE. Well, I think there’s two things. 

One, it is often the case that when we make policy decisions in 

the immediate aftermath, with incomplete information and motivated out of a sense of fear, those policies over the medium and 

long term don’t particularly turn out as we intended. 

Secondly, I think that when we create a climate of fear and suspicion within the United States we risk alienating Muslim Americans and our Muslim populations, making it a situation in which 

they are more susceptible to the kind of sophisticated recruiting 

techniques that ISIS employs. 

Now, again, I want to reiterate that I am not rationalizing any 

decision to join ISIS. Everyone has the agency, they make their 

own decisions, and there is no justification for joining a group like 

ISIS, whether or not you intend to commit violence. 

But it is incumbent, I think, on policymakers to understand the 

motivations for why people do join ISIS and make it much more 

difficult for ISIS to get people into their ranks. 

Mrs. WATSON COLEMAN. The President also called for the rejection of discrimination and proposals to treat Muslim Americans differently. Do you agree? 

Mr. GUDE. Yes. Absolutely. 

Mrs. WATSON COLEMAN. Discriminatory policies are inconsistent 

with the Constitution but also seem counterproductive from a security standpoint. What effect do these policy ideas have on ISIS and 

similar terrorist organizations? 

Mr. GUDE. Well, the narrative that ISIS is using, both talking to 

people who are already in its ranks and trying to recruit them, is 


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that we are in a clash of civilizations, where the crusaders, or the 

West, versus ISIS, representing Islam. And when we in the West 

buy into that rhetoric, describe it as a clash of civilization, it makes 

it easier for ISIS to sell that narrative. 

What they are trying to do, they divide the world into three 

groups—the West, ISIS, and in the middle they call something 

called the gray zone. Now, their description of the gray zone is targeted at Muslims who live in the West and have not yet joined 

ISIS, not yet come to the caliphate, as they describe where they are 

in Iraq and Syria. And their effort is to literally destroy that gray 

zone by pushing Muslims toward ISIS. 

Now, when we in the West engage in an anti-Muslim backlash, 

we make that job easier. Now, again, I want to reiterate that there 

is no justification for making that decision. But, in our own actions 

and in our own policies, we should understand what ISIS is trying 

to do and not play right into their hands. 

Mrs. WATSON COLEMAN. Much of this anti-Muslim rhetoric has 

surrounded this Syrian refugee population, who a recent Cato Institute report found to pose no significant threat to the United 

States. Specifically, Cato found in a November 18, 2015, report titled, quote, ‘‘Syrian Refugees Don’t Pose a Serious Security 

Threat,’’ that, I quote, ‘‘Of the 859,629 refugees who have entered 

the United States since 2001, 3 have been convicted for planning 

a terrorist attack abroad and exactly zero have perpetrated domestic attacks.’’ 

With the rise of ISIS and the growing number of threats against 

the United States, we are seeing more and more suggestions for 

policies that lead to unintended consequences of trampling on the 

civil rights and liberties of American Muslims, and these ideals are 

inconsistent with ours. 

Thank you. 

Thank you, Mr. Chairman. 

Mr. RUSSELL. The gentlelady yields back. 

And the chair now recognizes the gentleman from South Carolina, Mr. Mulvaney. 

Mr. MULVANEY. Thank you, Mr. Chairman. 

I’m going to try and get to something that might be a little bit 

more simple, a little bit more straightforward, which is going back 

to something I heard during the opening testimony of Ms. Kephart 

and Ms. Burriesci. 

And I apologize. When you have a last name like ‘‘Mulvaney,’’ it 

gets mispronounced a lot. So I apologize if I’m butchering yours— 

about the Visa Waiver Program, the basics of it. 

Here’s my question to both of you. I am a French national. I’m 

born there, I’m living in one of the suburbs, I have become a 

radicalized Islamist. Can I get on an airplane tonight to come to 

the United States of America? 

Ms. Burriesci? 

Ms. BURRIESCI. You’re doing great with the name. 

Mr. MULVANEY. Thank you. 

Ms. BURRIESCI. A French national who wants to come to the 

United States for business or tourism reasons would require an 

ESTA. For any other reason, they would require a visa. The checks 

would be the same—— 


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Mr. MULVANEY. I want to get in as quickly as I possibly can. I 

want to say I’m a tourist. Because I want to come here and blow 

something up. Could I get on the plane tonight and do that? 

Ms. BURRIESCI. If we have that derogatory information, absolutely not, regardless of—— 

Mr. MULVANEY. But tell me the process I have to go through before I can get on the airplane. 

Ms. BURRIESCI. You have to have—so you have to fill out an online application or a visa application, again, depending on your purpose for coming to the United States, and those are vetted. 

Regardless of either, the same biographic checks are occurring. 

You’re hitting the Terrorist Screening Database, the terrorist 

watch list, you’re hitting State Department’s holdings, you’re hitting DHS holdings, you’re hitting the National Counterterrorism’s 

holdings. And you’re going to be recurrently vetted. 

If we have derogatory information that you have ill intent, you’re 

a terrorist, you’re a known or suspected terrorist, absolutely not. 

Either one, you’re going to get denied. 

Mr. MULVANEY. So, regardless of whether or not I’m a terrorist, 

I’m a French national with a French passport, and I just decide tonight that I want to get on an airplane and come to New York, I 

have to go through the process that you just mentioned. 

Ms. BURRIESCI. Absolutely. Nobody can just walk on a plane and 

come to the United States. 

Mr. MULVANEY. Ms. Kephart, is that right? 

Ms. KEPHART. Yes, it’s right, as long as the terrorist has decided 

to use his real identity. 

So, yes, Kelli Ann’s process is, indeed, correct. You have to fill 

out an online ESTA process. You can even do that process at the 

airport. But it’s only biographic, and that’s the difference. 

Mr. MULVANEY. Okay. And let’s build on that a little bit. How 

long does it take to do that? You say I can do it at the airport. 

Ms. Burriesci, how long does it take me to actually go through 

that vetting process? Again, I’m assuming that I’m not lying yet. 

I haven’t stolen passports; that’s a different issue. I’m not trying 

to hack a computer. I’m just an ordinary French citizen with a 

passport. How long does it take to do that? 

Ms. BURRIESCI. It’s a short period of time to clear, assuming everything is coming back green. Certainly, if there’s a flag of any 

kind, you’re referred to the nearest consulate. 

Mr. MULVANEY. Okay. So if there’s no flag—because what we’re 

hearing now is that, while some of the terrorists in France, in the 

Paris bombings, were on some lists in France, others were not. So 

those folks, apparently, would not have come up on your background check, your vetting process. 

Am I saying anything that’s inaccurate so far? If we didn’t know 

about them and the French didn’t know about them, they would 

have cleared those background checks, right? 

Ms. Kephart is saying yes. 

Ms. BURRIESCI. Yes. The response would have been the same, 

whether it was an ESTA or a visa. 

Mr. MULVANEY. Okay. So how long would it have taken to go 

through that process? 


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Ms. BURRIESCI. The ESTA application vetting is not a long period 

of time. You can do it that day. 

Mr. MULVANEY. Okay. 

Ms. BURRIESCI. Yes, sir. 

Mr. MULVANEY. Okay. So I guess what I’m hearing then—and 

what I’m always concerned about is if I’m getting good information 

and the folks I represent are getting good information. And what 

I am hearing is that if I read something on the Internet, saw it on 

the news, heard it on talk radio, that said that at least some of the 

Paris bombers could have come into this country and we would 

never have known about it because of the Visa Waiver Program, 

that is a true statement. 

Ms. BURRIESCI. I would really have to refer you to the FBI’s Terrorist Screening Center for additional information other than what 

I’ve already said. 

Mr. MULVANEY. That’s fine. Let’s assume, then, for my question 

that the French didn’t know they were potential terrorists and we 

didn’t know they were potential terrorists. They would be able to 

come in the same day. 

Ms. BURRIESCI. If there is no derogatory information—— 

Mr. MULVANEY. I’m not trying to accuse you of not doing your 

job. I’m just getting trying to get information. 

Ms. BURRIESCI. No, I understand, sir. 

Mr. MULVANEY. Okay. 

So, Ms. Kephart, how do we fix that? 

Ms. KEPHART. As I discussed in my testimony, I think the winwin for everybody—for DHS, for the program itself, for the traveler—is establishment of preclearance and making that mandatory, 

something DHS has been pursuing for a while. 

They’re having trouble because every country they have to develop an MOU with. If you made it part of the Visa Waiver Program and established some requirements, I think it would make it 

easier for Customs and Border Protection to do that negotiation 

and to get that vetting prior to boarding, which is what everybody 

is always concerned about. 

Mr. MULVANEY. Very quickly to both you ladies—and I’m going 

to go a little bit over time but not too much—is the bill that the 

House passed earlier this week on a large bipartisan margin, does 

that actually help the situation? 

Ms. BURRIESCI. Yes—oh. 

Mr. MULVANEY. Ms. Kephart? 

Ms. KEPHART. Go ahead. 

Ms. BURRIESCI. Yes, sir. The bill adds practical security value in 

many areas. 

Mr. MULVANEY. Ms. Kephart, do you agree with that? 

Ms. KEPHART. It does—it reiterates current law. I don’t think it 

goes too much further than what we have on the books right now. 

The requirement regarding information regarding people who have 

traveled to terrorist known spots, that’s going to be very difficult 

to enforce, I think. 

So I think it’s a very good start. I really appreciate that it was 

bipartisan and the White House is on board and this is moving forward together, but—— 

Mr. MULVANEY. Last question. 


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Ms. KEPHART. —we need more. 

Mr. MULVANEY. I appreciate the indulgence. Last question. Are 

we more at risk from someone traveling here from the United 

Kingdom, which is a Visa Waiver Program country, because of the 

information we get from them, or are we more at risk from someone traveling from Russia, which does not participate in the Visa 

Waiver Program? 

Ms. Burriesci? 

Ms. BURRIESCI. Sir, I certainly that think the Visa Waiver Program adds additional security value than just vetting the traveler 

alone. Because we have those information-sharing arrangements, 

they are sharing their known or suspected terrorists and foreign 

fighters with us. They are meeting security standards—— 

Mr. MULVANEY. Because the U.K. participates in the program, 

they give us information that other countries that do not participate in the program do not. 

Ms. BURRIESCI. That’s exactly right, sir. 

Mr. MULVANEY. Do you agree with that, Ms. Kephart? 

Ms. KEPHART. Well, I think the difference with U.K. is it’s one 

of the Five Eyes countries, so we have better information-sharing 

with them than we do even with some of the other visa waiver 

countries. So perhaps you take a country like Belgium, which is not 

one of the Five Eyes—and then I still think the Visa Waiver Program offers the opportunity to land in the United States in a more 

vulnerable way than the visa process does, although there are some 

benefits that Ms. Burriesci has discussed. 

Mr. MULVANEY. Thank you, Mr. Chairman. 

Mr. RUSSELL. The gentleman yields back his time. 

And the chair now recognizes the gentlelady from Michigan, Mrs. 

Lawrence, for 5 minutes. 

Mrs. LAWRENCE. Thank you, Mr. Chair and Ranking Member. 

I just want this on the record, that we passed a bill before we 

had this dialogue. And, to me, in Congress, that is not the process 

that the American people want us to do. This dialogue is important, and it should have happened prior to us voting on the bill. 

I’m going to bring up an issue that I have continuously talked 

about. Gun violence has been an issue that I’ve been focused on 

since my time in Congress, particularly my district, which has been 

plagued with gun violence. This is the first year in history of our 

country that gun deaths are tracking to be the leading cause of 

deaths of Americans age 15 through 25. We are losing a generation 

to senseless gun violence. 

The issue is becoming more disturbing when we hear that there 

is the possibility that terrorists, identified terrorists, are able to legally purchase weapons that they need to commit act of violence 

simply because of a loophole in the law. 

Mr. Chair, I wanted to enter into the record the GAO statement 

and letter dated March 6, 2015, if I may. 

Mr. RUSSELL. Without objection. 

Mrs. LAWRENCE. The Government Accountability Office recently 

analyzed FBI data on background checks for firearm-related purchases for individuals on the terrorist watch list between February 

2004 and December of 2014. 

Mr. Gude, are you familiar with this recent GAO study? 


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Mr. GUDE. Yes. 

Mrs. LAWRENCE. According to this GAO report, individuals on 

the terrorist watch list attempted to purchase firearms or explosives in the U.S. at least 2,233 times, of which 2,043 of those sales 

were approved. 

Mr. Gude, that means that 91 percent of the attempts by suspected or known terrorists to purchase firearms were approved. Is 

that correct? 

Mr. GUDE. To my knowledge, yes. 

Mrs. LAWRENCE. In just the 2-year period between January 2013 

and December of 2014, individuals on the terrorist watch list were 

involved in firearm-related background checks 485 times, of which 

455 were approved. That is a 94-percent approval rate. Anyone 

that hears that number should have a sense of concern. 

My question to you, sir, is that, while we have individuals who 

are legally not restricted—and we’re talking about individuals coming to this country. Tell me, what is your opinion on the concern 

on the purchases of guns by those who have been identified as terrorists? 

Mr. GUDE. Thank you for your question. It is an issue of grave 

concern. And I want to applaud all the members of the committee 

for their attention to the details in the questions that the panel has 

received trying to identify where the actual risks are in our system. 

This strikes me as one of our serious risks. 

In his opening remarks, Chairman DeSantis identified that one 

of the categories of potential terrorist attacks are people who are 

radicalized in the United States. There would be no visa waiver or 

visa program or screening at the border that would catch those individuals. We are relying on the information that our intelligence 

agencies and our law enforcement community have about those individuals to ensure that they can detect and prevent any plots that 

target Americans here in the United States. 

It is hard for me to reconcile the level of risk tolerance that many 

are advocating for entry into the United States, which is understandably extremely low and one that I broadly support, with what 

is the level of risk tolerance for individuals who are on the terror 

watch list, who we either know or suspect of links to terrorism, to 

be able to buy semiautomatic assault weapons. 

Now, any process that restricts the access to purchasing weapons 

must also include an opportunity for a redress there. You know, if 

there’s an error in the list, if you were erroneously denied purchase, there ought to be a robust process for you to be able to have 

that decision overturned if it is incorrect. 

But the notion that we should allow potential errors in the system to prevent us from denying easy access to the most dangerous 

firearms to people that we think are terrorists is just mind-boggling. 

Mrs. LAWRENCE. Thank you. 

Mr. Chair, I just want to end with this chilling comment by a 

senior Al Qaeda operative. And I quote: ‘‘America is absolutely 

awash with easily obtainable firearms. You can go to a gun show 

and pick up a fully automatic assault rifle without background 

checks. So what are you waiting for?’’ That is one part of the 

radicalization. 


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The other thing I want to say before I close is that the comprehensive and deliberate policy to fight against terrorism is absolutely our job in Congress. And this issue should be just as much 

a part of the debate and a part of the discussion. 

And the next time we have someone coming here from the Department of Homeland Security, I would hope that they would have 

more data and be better prepared so that we can get more information. 

Thank you. 

Mr. RUSSELL. And the gentlelady has yielded back her time. 

I wish to address one item. You cannot purchase a fully automatic anything at a gun show. They are controlled by the Bureau 

of Alcohol, Tobacco, and Firearms with a $200 tax stamp. It takes 

months of approval, if approved, extensive checks. There is a lot of 

inaccurate information out there, and I would just correct the panel 

member on this issue. 

An assault rifle is a select fire rifle that you can switch from 

semiautomatic to fully auto. You cannot go and purchase one of 

those anywhere. And we should not take the bait on ISIS propaganda. And while we’re having these discussions, we can’t, on suspicion alone, allow our constitutional liberties to fall prey to such 

inaccurate nonsense. 

And, with that, I would like to turn over the chair—well, actually, I will turn to and recognize Mr. Mica from Florida, and then 

I will turn over to the chair. 

Mr. MICA. Well, thank you. 

And, again, the gentlelady preceding me mentioned about the 

deaths in the United States with firearms. And most of those weapons are obtained illegally. And it appears even in the San 

Bernardino case that some of the weapons were obtained illegally. 

So they are available. 

In France, they probably have the tightest gun control measures, 

and I’d love to share with you a list of the weaponry that was assembled in the latest Paris attack. And I was over and actually saw 

the sites of the Hebdo and the deli attack. And I saw the weaponry 

that was assembled there with a very, very, very, very, very tight 

gun control. 

I have a question first for the Homeland Security witness. Okay. 

We had this female terrorist in San Bernardino, and she was 

granted a visa to enter the United States, a fiance(e) visa, as far 

as we know. Do you think that is the case, or you—— 

Ms. BURRIESCI. She did have a K–1 visa, yes. 

Mr. MICA. Okay. And to do that, she had to submit to an interview. Is that correct? 

Ms. BURRIESCI. Yes, with State Department. 

Mr. MICA. So she had an interview. She also had to provide some 

biometrics. Is that correct? 

Ms. BURRIESCI. Yes, sir. Biometrics and biographic information 

and an interview—— 

Mr. MICA. But biometric? 

Ms. BURRIESCI. All of them as part of the visa application. 

Mr. MICA. Okay. So that’s the same method, though, that pretty 

much we will be adopting should the Visa Waiver Program we 

just—we just considered before Congress pretty much the same 


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thing, an interview and biometric, because that’s what is missing. 

If you want to come in on a visa waiver, you don’t have to go 

through that now. Is that the case? 

Ms. BURRIESCI. All those checks occur, and it’s a matter of the 

timing of where they occur. 

Mr. MICA. But, again, we’re talking about doing the same kind 

of thing we did with her. 

Ms. BURRIESCI. There—— 

Mr. MICA. Yes. Yes. The answer is yes. I’ll answer my own question. 

Okay. So a French passport, if you entered as a French citizen, 

does it contain biometric? 

Ms. BURRIESCI. So all the visa waiver programs are issuing epassports, and the minimums—— 

Mr. MICA. Do they have biometric? 

Ms. BURRIESCI. So the minimum standard for—— 

Mr. MICA. Do they have biometric? 

Ms. BURRIESCI. Yes, sir. It has a digital photo in it. Yes. 

Mr. MICA. A photo. Do they have fingerprints? 

Ms. BURRIESCI. Many visa waiver programs also include—not 

many. I’m not actually—— 

Mr. MICA. Some do. 

Ms. BURRIESCI. —sure of the number, but some have fingerprints. 

Mr. MICA. But some don’t. 

Ms. BURRIESCI. But some don’t, similar to the United States 

doesn’t—— 

Mr. MICA. And many entry points in the United States do not 

have the capability of fingerprint verification, do they? 

Ms. BURRIESCI. I’m sorry, I missed the beginning of your question. 

Mr. MICA. Many entry points in the United States do not have 

the ability or the capacity to confirm fingerprint identification. 

Ms. BURRIESCI. So all of our ports of entry do capture and run 

checks on biometrics. If you’re referring to the e-Passport itself, all 

CBP—— 

Mr. MICA. When you come across the Mexican border, all of those 

folks coming in are, in fact—their fingerprints are being checked? 

Ms. BURRIESCI. Yes. 

Mr. MICA. Ms. Kephart says no. 

Ms. BURRIESCI. It depends if we’re talking about the e-Passport 

or just—— 

Mr. MICA. No, just people coming—— 

Ms. BURRIESCI. Everybody coming into the country—— 

Mr. MICA. No, they are not. 

Ms. BURRIESCI. —yes, we take their prints for individuals coming 

into the country. Visa Waiver Program or visa, we’re taking people’s prints and we’re running checks on them. 

Mr. MICA. A French citizen who comes into the United States is 

coming in with a passport that might have photographic information embedded in it, but they don’t have fingerprint. 

Ms. BURRIESCI. But they’re going to see a CBP officer and they’re 

going to have their fingerprints taken. 

Mr. MICA. Every French citizen who comes in? 


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Ms. BURRIESCI. Yes, sir. 

Mr. MICA. And we have the capability at every border to capture 

that, and we’re doing it with all foreign nationals that are coming 

in? 

Ms. BURRIESCI. The person is going to provide their prints right 

there at the POE, and we are going to run checks. 

Mr. MICA. And Ms. Kephart is saying no. 

Ms. BURRIESCI. We read their e-Passports and pull up their digital photo. So we’re not lifting fingerprints from the passport; we’re 

actually taking it from the passenger. 

Mr. MICA. But they’re not embedded in that, so you don’t know 

what—— 

Ms. BURRIESCI. So most countries—not most countries. Most ePassports, if you do have fingerprints on the chip—— 

Mr. MICA. Yes. But, again, you’re saying ‘‘most,’’ not ‘‘all.’’ And 

we don’t do this with all, and we have no capability for all. 

Ms. BURRIESCI. We do have the capability, sir, to read the ePassport, and we do take—— 

Mr. MICA. But you keep talking about the e-Passport, and a lot 

of these are not e-Passports. 

Let me ask you a question. When you go through and grant a 

visa, are the State Department folks who are doing the interviewing, are they all checking these folks against the U.S. no-fly 

list? 

Ms. BURRIESCI. Yes, sir. 

Mr. MICA. They are? 

Ms. BURRIESCI. Yes. ESTA or visa, everybody gets run against 

the terrorist watch list. 

Mr. MICA. No, I didn’t ask about the terrorist watch list. 

Ms. BURRIESCI. Oh, did I misunderstand? 

Mr. MICA. I asked about the no-fly list. I think there’s—— 

Ms. BURRIESCI. The no-fly list is a subset—— 

Mr. MICA. —400,000 people. 

Ms. BURRIESCI. I’m sorry. I don’t mean to interrupt. The no-fly 

list is a subset of the overall terrorist watch list. 

Mr. MICA. But my question was the no-fly list. 

Ms. BURRIESCI. Yes, they are run against the no-fly list. 

Mr. MICA. Okay. 

And the problem you have is, we’ve seen with the latest incident 

we have certain protections, we had an interview of this individual, 

and that individual defied us. I mean, the same system you put in 

place we may be putting in place for visa waiver. You don’t know 

what is in people’s hearts and minds. These people are already, 

some of them, are—one was embedded, one came in, and it’s very 

difficult. 

I don’t have time to get into profiling, but there’s some commonality to all of these folks. I won’t get into that today. And I 

think we have to go beyond what we’re doing now or we’re not 

going to stop these individuals. 

And I yield back the balance of my time. 

Mr. MULVANEY. [presiding.] I thank the gentleman. 

We’ll now recognize the lady from the District of Columbia, Ms. 

Holmes Norton, for 5 minutes. 

Ms. NORTON. Thank you very much, Mr. Chairman. 


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I’m going to tell you, because I represent the Nation’s capital, my 

district is caught both ways. On the one hand, we have very much 

approved the Visa Waiver Program. About the only tourists who 

don’t come to the Nation’s capital are international tourists—that 

is to say, where there are more to come, on the one hand. And yet 

the Nation’s capital is a major terrorist target. So that balance is 

very difficult for us. 

On the terrorist watch list, Ms. Burriesci, you have been asked 

endlessly about the numbers on that list or the no-fly list. I am far 

less interested in the numbers than I am in the controversy surrounding that list. 

Those who want people to be able—and, by the way, there is a 

bipartisan bill, Peter King’s bill, that would say, once you get on 

that list, you can’t by a gun. I am cosponsor of that bill. But, of 

course, there have been attempts to pass a ‘‘no gun if you’re on that 

list,’’ tries here in the House and the Senate. 

Since 9/11, there has been endless controversy that those who 

want people to be able to buy guns no matter what have, frankly, 

used, and that is the inaccuracy—the so-called inaccuracy, because 

that’s really my question—of the terrorist watch list and the no-fly 

list. 

Could I ask you, what attempts have been made to address the 

accuracy issue that has now sent some people—I think the ACLU 

is in court on the inaccuracy of the issue on behalf of some people 

who were on the list who shouldn’t have been on the list. Can you 

give us any information on how or what you are doing to clean 

those lists so that they are accurate? 

Ms. BURRIESCI. Yes, ma’am. Thank you for asking that question. 

Not only are there robust criteria to even get on that list, but 

that list is reviewed regularly by the Terrorist Screening Center 

that owns it—— 

Ms. NORTON. So, because I only have 5 minutes—— 

Ms. BURRIESCI. —to make sure that—— 

Ms. NORTON. So it’s reviewed regularly. And does that mean that 

you are regularly putting on and removing names and that you believe that the list is basically accurate? 

Ms. BURRIESCI. Ma’am, there are people that get on the list and 

change status on the list on a daily basis. 

Ms. NORTON. How about people who have the same name? You 

know, we always talk about people named John Kennedy or some 

such name, Eleanor Holmes Norton maybe. Do you deal with people who have common names? 

Ms. BURRIESCI. So there is something called the DHS Traveler 

Redress Inquiry Program. It is a one-stop shop for the—it’s operated out of TSA, but it’s a one-stop shop for all travelers. 

Ms. NORTON. If you are on the list and shouldn’t be on the list, 

is there an appeal process so you can get off the damn list? 

Ms. BURRIESCI. I’m sorry? 

So you can apply through TRIP if you feel that you’ve been—— 

Ms. NORTON. So there is an appeal process. 

Ms. BURRIESCI. If your travel has been delayed, you can apply 

there. And if you’re not that Burriesci—— 

Ms. NORTON. I wish you would provide—— 

Ms. BURRIESCI. —then you get a number that you—— 


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Ms. NORTON. I wish you would provide us some information on 

the process being used so the chair will have it to check on the accuracy, because I have another—— 

Ms. BURRIESCI. Certainly. 

Ms. NORTON. —question. 

Ms. BURRIESCI. Certainly. 

Ms. NORTON. It’s on the EB–5 program. Again, my district has 

used the EB–5 program. You know, of course, that that is a program that allows investment in exchange, I believe, for a visa. And 

you have to say that you’re going to provide 10 permanent jobs. 

There are things that have been built in the District of Columbia, 

big things, using that program. 

How are those people vetted, EB–5 investment visas? Do they go 

through the normal visa process, or do they go through some other 

process? 

Ms. BURRIESCI. I know vetting is done on those, but I don’t have 

the specifics on the EB–5. That’s not one of the areas I have concentrated on and have information. But that is something, certainly—— 

Ms. NORTON. Ms. Kephart, do you know anything about that? 

Ms. KEPHART. I have in the past, and I’m really sorry, but I don’t 

have it at the—— 

Ms. NORTON. Mr. Chairman, could I ask that that information be 

provided to this committee? 

This has been a popular program here and across the United 

States. We need more information on visas in connection with that 

program, as well. It’s not only the person; it’s relatives that can 

come in. 

Thank you very much, Mr. Chairman. 

Mr. DESANTIS. [presiding.] We will be doing a hearing on the 

various visa programs, and I think that that will obviously be one 

that will be grist for the mill. 

Okay. The chair now recognizes the gentleman from North Carolina, Mr. Meadows, for 5 minutes. 

Mr. MEADOWS. Thank you, Mr. Chairman. 

And thank each of you for your testimony. 

Ms. Burriesci, let me come to you and follow up where Mr. Jordan left off on visa overstays. 

In part of your testimony here today, you said you’re making 

progress, that the quality of the data with regards to visa overstays 

is improving, I think. Is that correct? 

Ms. BURRIESCI. Yes, sir. 

Mr. MEADOWS. Okay. So if the quality of the data is improving 

and yet—so you’re able to testify to that, but you have no idea how 

many people overstay their visas. Do you have any idea? A ballpark? 

Ms. BURRIESCI. Sir, we have preliminary numbers—— 

Mr. MEADOWS. And what would those be? 

Ms. BURRIESCI. —that the Department has compiled, and we are 

doing a thorough review of those numbers because we know how 

important they are. The Secretary has—— 

Mr. MEADOWS. Well, the Secretary—let’s get to that. The Secretary, in testimony—— 


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Ms. BURRIESCI. —ensured we do our due diligence on these numbers. 

Mr. MEADOWS. No, but the Secretary, in sworn testimony before 

Congress in 2013, said that she would get them to Congress by December of 2013, and here we are almost 2 years later. So how long 

does it take to verify the numbers? 

Ms. BURRIESCI. Sir, we know how important these numbers are, 

and we—— 

Mr. MEADOWS. That’s not what I asked. I said, how long does it 

take to verify the numbers? 

Ms. BURRIESCI. Well, at that time, we were still looking back at 

data that was from where the systems were not working well together. And now they are—— 

Mr. MEADOWS. Okay. Is it true—— 

Ms. BURRIESCI. —better at giving us additional—— 

Mr. MEADOWS. All right. Is it true that you have an internal 

memo that goes through your agency, or at least to some in your 

agency, that would indicate the number of visa overstays? 

Ms. BURRIESCI. Yes, sir. It—— 

Mr. MEADOWS. I thought it was. I have information that would 

indicate that it is. So what number is on that internal memo? 

Ms. BURRIESCI. It is a draft interim entry/exit—— 

Mr. MEADOWS. That’s not what I asked. That’s a great answer 

to a question I didn’t ask. 

Ms. BURRIESCI. I’m sorry. 

Mr. MEADOWS. What number is on that internal memo? 

Ms. BURRIESCI. I can—— 

Mr. MEADOWS. Ballpark. I’ll give you plus or minus 10,000. What 

ballpark? 

Ms. BURRIESCI. I’ll take that back to the Department, sir. 

Mr. MEADOWS. Is it less than a million? 

Ms. BURRIESCI. Sir, I will—— 

Mr. MEADOWS. Have you seen the memo? 

Ms. BURRIESCI. I have, but it has been a little while since I have 

seen it. 

Mr. MEADOWS. All right. So you have seen it. You looked at a 

number. Was the number greater than a half-million? 

Ms. BURRIESCI. Sir, I don’t have a number to—— 

Mr. MEADOWS. So you’re refusing to answer the question. It’s not 

that you don’t know. Is that correct? 

Ms. BURRIESCI. Because the numbers are still going through finalization, I’m not authorized to provide a draft number. 

Mr. MEADOWS. Okay, but Federal law requires that you report 

that to Congress, does it not? 

Ms. BURRIESCI. Yes, sir, the Department is responsible to do 

that. 

Mr. MEADOWS. So at what point are you going to comply with 

Federal law? 

Because, in 2011, the number was 1.6 potential visa overstays— 

million, 1.6 million. In 2013, according to GAO, it was potentially 

1 million visa overstays. How many visa overstays does it take to 

take down the Twin Towers? 

Ms. BURRIESCI. Sir, I can’t answer that. 


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Mr. MEADOWS. So when is this committee going to get the information on visa overstays? 

Ms. BURRIESCI. I understand the urgency that you’re asking that 

question. And I’ll make sure that that gets back to my front office. 

Mr. MEADOWS. Listen, they already have the request. At what 

point are you going to comply with Federal law and give it to this 

committee? At what point? I mean, or maybe I’ll ask it a different 

way: What justification do you have to violate Federal law? 

Ms. BURRIESCI. Sir, I will take back exactly what you’re asking 

and make sure that my front office is aware—— 

Mr. MEADOWS. Do we have to subpoena the numbers? 

Ms. BURRIESCI. I don’t have a better answer for you today. I’m 

sorry, sir. 

Mr. MEADOWS. All right. So if we’re looking at the visa 

overstays—and we’re sitting here debating about a Visa Waiver 

Program, and yet the very instance of visa overstays and the potential terrorist threat that accompanies that, you’re tracking that, 

and yet the last information that Congress got that was reliable 

was 1994. Do you not see a problem with that? 

Ms. BURRIESCI. I think you should receive the data as soon as 

it is available. And I will take that back to the—and provide it to 

my department’s front office and make sure that they understand 

exactly what you’re asking. 

Mr. MEADOWS. Let me finish by asking, would you think 30 days 

would be reasonable enough to vet the numbers? 

Ms. BURRIESCI. I’m not sure. I don’t have a timeframe. But I 

want to make sure that—— 

Mr. MEADOWS. So let me make sure I understand this correctly. 

You can sit here and give us sworn testimony that you’re vetting 

with unbelievable surety from a national security risk all the potential people coming from abroad here and that you can vet those 

as it relates to national security risk, but you can’t vet the number 

of visa overstays with any degree of certainty in the 2-year period? 

Ms. BURRIESCI. Sir—— 

Mr. MEADOWS. Was that your testimony? 

Ms. BURRIESCI. No, sir. We are vetting against law enforcement 

and counterterrorism and international databases. That is the 

screening aspect—— 

Mr. MEADOWS. How hard is it to figure out how many visas 

overstays we have? That should be easy. 

Ms. BURRIESCI. Yes. 

Mr. MEADOWS. You got one document; you got one that doesn’t 

match up. What is the difference? It’s simple mathematics. I yield 

back. 

Mr. DESANTIS. The gentleman yields back. 

You got to do better than that, Ms. Burriesci. This is not inspiring a lot of confidence. And I think that more questions have been 

raised than answered. 

I will now recognize Ms. Lujan Grisham for 5 minutes. 

Ms. LUJAN GRISHAM. Thank you, Mr. Chairman. 

And, quite frankly, you just stole my opening statement. I mean, 

we are all here wanting to do the very same thing, to highlight the 

vast, productive, high-level security effort that, quite frankly, outside sources have done a far better job identifying our strengths 


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than certainly anybody from the administration today on this panel 

or prior to this panel. 

And in this job, it is our job to make sure that the information 

and sources that we are seeing, reading, evaluating, gathering, that 

you can confirm or deny those so that in that reporting process— 

whether it be through testifying before this committee or providing 

those reports—that we can do our job effectively by assisting you 

with policy shifts that enhance your opportunities. 

But what we’re getting here today is ‘‘I’m not sure,’’ ‘‘I don’t 

know,’’ ‘‘can’t do it,’’ ‘‘haven’t seen it,’’ ‘‘can’t really tell you.’’ And 

I’ll tell you this, with only three major databases, as I understand 

it, and doing a quick search while I’ve been sitting in this committee for the past 30 minutes, I can tell you what the Wall Street 

Journal says. The Wall Street Journal says that there are 16,000 

names on the watch list. On TIDE, there’s about 1 million people 

and that there’s a much smaller—they didn’t give me a number— 

on the TSA no-fly list. Now, I don’t consider that my staff or anybody on this committee should be using that information as the 

data points. 

But if that’s the only place we’re getting it, then, Mr. Chairman, 

I think you should subpoena the Department because my constituents expect me, particularly after the changes that we’ve made to 

the Visa Waiver Program, that if you’re going to be reporting to 

me, what confidence do I now have, Secretary, that you’re actually 

going to provide those reports and that our enhanced screenings so 

that we’re evaluating now the threat, the risk of terrorism, that 

you can do that? With only three lists, my expectation is those 

numbers would be rote to you, whether or not they’re specifically 

your responsibility out of Homeland Security because we have a 

Homeland Security Department for exactly those reasons, where 

we consolidated these efforts and we enhanced the opportunity for 

collaboration. And you’ve given me no confidence based on your testimony that you are leading that effort in any meaningful or remarkable way. 

Now, I hope I’m wrong. So I’m expecting you and this administration to give this committee and Congress the kind of assurances 

and security about our screening processes that we deserve and 

that this country deserves. But I’m really disappointed by this 

hearing. And I was hoping that I wouldn’t be. And, in fact, to that 

point, just exactly what are you going to do and how are you going 

to proceed by giving us credible and confident information about 

assessing the risk, given that one of the issues I get concerned 

about is the fact that the countries that we’re concerned about, the 

Iraqi and Syrian borders are so porous, how are we going to track 

folks and what kinds of things can you—without telling me that I 

should get a classified briefing, and I certainly don’t want you to 

breach any of those classified or protected information. But give me 

a sense that you are actually doing your job and have some ideas 

about just exactly how you’re going to increase that assessment 

based on that legislation. 

Ms. BURRIESCI. To address several of your points, the action that 

I’m going to take is going back to the authoritative source for the 

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bers. I have a host of stats here, and I just didn’t have those on 

my page. 

Ms. LUJAN GRISHAM. That wasn’t my question either. I want to 

talk about the porous borders. You tell me now about the next 

phase. So I’m disappointed in the current efforts clearly, clearly. I 

think I can say the vast majority of this committee is. Now tell me 

about the next phase. Where are you in being prepared to deal 

with very tough issues? I don’t want to diminish those. But where 

are you in helping us identify better ways to deal with a pretty difficult problem, just given that one example? You’ve had many 

today. So the fact that people can travel between those countries 

which are high-risk areas and we don’t know about it, what are 

you going to do about that from a data security management perspective? Recommend to me. 

Ms. BURRIESCI. One of the things that you saw in the White 

House’s announcement last week is asking additional questions 

and enhancing ESTA further to be able to identify travel that 

doesn’t have—— 

Ms. LUJAN GRISHAM. Give me a specific. 

Ms. BURRIESCI. —a nexus to the United States, which is where, 

I agree, if there’s not a nexus to travel, continuous travel departing 

from the United States to go to any of those countries, it is much 

harder for us to find that information. If our foreign partners, 

whether in a VWP country or not, but if our foreign partners are 

not also sharing that information with us—and, thankfully, our 

VWP countries are, when they know that there’s a foreign terrorist 

fighter, sharing that with us—then, yes, that is where that vulnerability lies. 

Ms. LUJAN GRISHAM. And, Mr. Chairman, I’m out of time too. 

You’ve been incredibly—we want you to answer. And I agree that 

you are—you are in our communication now giving me a sense that 

you understand the problem. And I appreciate that. And I didn’t 

mean to make that sound demeaning. But this is a significant 

problem. 

But what are you doing about it? Give me one, give me one specific that you can in the context of this hearing so I know that 

you’re on the right path because that’s what I need to explain to 

my constituents: this is what is happening. 

Mr. DESANTIS. The gentlelady’s time has expired. We have kind 

of gone round and round. 

Why don’t you provide the answer in writing because I don’t 

think we’ve gotten very good answers right now. 

Mr. DESANTIS. And I don’t know if it’s a lack of preparation or 

what not. I think it’s a good question. So the gentlelady’s time has 

expired. 

Ms. LUJAN GRISHAM. Thank you, Mr. Chairman. 

Mr. DESANTIS. I’m going to recognize the gentleman from North 

Carolina for 5 minutes, Mr. Walker. 

Mr. WALKER. Thank you, Mr. Chairman. 

I appreciate the opportunity. 

Mr. Jenkins, you haven’t been able to participate a whole lot, but 

I still wanted to recognize you and thank you for being here. You 

do great work. 


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Mr. Gude, you stated earlier that when we make decisions, you 

said: It is ignorant when we make decisions based on incomplete 

information. 

The statement, ‘‘Americans are dying right now because of the 

existence of Guantanamo; closing it responsibly will save American 

lives,’’ do you agree with that statement? 

Mr. GUDE. I think it has lessened currently as a terrorist recruiting tool. But I certainly think that in the past, it has been a substantial recruiting tool for terrorists. 

Mr. WALKER. I don’t know if that was a yes or no because that 

was actually your statement. You also said this: President Barack 

Obama has done more in a few short hours to protect the security 

and uphold the values of the United States than his predecessor 

did throughout his long 8 years in office. 

Do you agree that statement is true? Or is that maybe an ignorant statement when you didn’t have all the complete information? 

Mr. GUDE. No, I remember saying that. And I clearly believe 

that. It was in response to the President’s executive orders on his 

first full day in office to close down the black site prisons, to end 

torture, and establish a process to close Guantanamo. 

Mr. WALKER. Would you agree, though, we have more information now after 7 years? 

Mr. GUDE. Well, I think that a lot of time has passed. 

Mr. WALKER. It has. The last statement that you made in the 

past, and I want to hit a couple you made today. You said America 

is back and ready once again to lead the community of nations toward a future that is both more secure and more free. It doesn’t 

seem to be working out that way right now, does it? 

Mr. GUDE. I think there are clearly threats that we as a country 

and we as an international community face. But, look, I think that 

we also forget the state of the world as it existed in early 2009 and 

late 2008. And I fully, fully believe that the United States is in a 

stronger position now than it was then. 

Mr. WALKER. So basically would it be fair to say you believe right 

now we’re safer as a country than where we were 7 years ago? 

Mr. GUDE. Yes. 

Mr. WALKER. Okay. Thank you for being on record with that. 

Today, you said in regard to Islamic, you said it’s impossible to 

state so boldly that ISIS is a religious sect of Islam. You said it’s 

not. How can you be so bold, in fact, you said you used your word 

and said it was ignorant to think that way. And you even said we 

need to eradicate such ideology. I find that interesting that you 

would talk about not the eradication of ISIS but the eradication of 

such ideology. Do you think ISIS would agree with you that they’re 

not a religious sect of radical Islam? 

Mr. GUDE. I think ISIS is quite clearly trying to represent Islam. 

But I don’t believe that it does. And I think the overwhelming majority of Muslims in the world would agree with me. 

Mr. WALKER. How many millions would you suggest hold to this 

radical sect of Islam? 

Mr. GUDE. I can’t—— 

Mr. WALKER. Would you say that there’s millions? 

Mr. GUDE. No. 


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Mr. WALKER. You don’t believe there’s millions that hold to that 

sect. I would have to share some information accordingly. My concern is that here you are today as a witness talking about the security of our country, the no-fly list, some of the other things. And 

yet the statements that you’re on record seem to be overwhelmingly partisan. And even today, you’re on record saying that our 

country is safer now than where it was even though we’re having 

explosions as far as this no-fly list, this thing, we’ve got Visa Waiver Programs we’re trying to figure out. But you believe that right 

now we are safer as a country than where we were even when all 

this information wasn’t even discovered? 

Mr. GUDE. Yes, I do. 

Mr. WALKER. Okay. I have no further questions. Mr. Chairman, 

I yield back. 

Mr. DESANTIS. The gentleman yields back. 

The chair now recognizes the gentleman from South Carolina for 

5 minutes, Mr. Gowdy. 

Mr. GOWDY. Thank you, Mr. Chairman. 

Ms. Burriesci, how many visa overstays are there in the United 

States? 

Ms. BURRIESCI. Sir, as I said earlier, I don’t have that statistic 

with me. 

Mr. GOWDY. Let’s use the President’s statistics that there are 11 

million, and 40 percent of them would be visa overstayers, as opposed to border crossers. Do you take exception with what the 

President said? Or can we just use that as kind of a baseline? 

Ms. BURRIESCI. I, in all honesty, I don’t recall what the President 

said about it. But I’m not sure where those stats are coming from. 

I just don’t have it with me. 

Mr. GOWDY. So you cannot tell me how many visa overstayers 

are in the United States? 

Ms. BURRIESCI. I don’t have that information with me. 

Mr. GOWDY. Is there a list? 

Ms. BURRIESCI. There is an interim draft entry/exit report which 

has overstay data in it. 

Mr. GOWDY. No. No. Are—— 

Ms. BURRIESCI. I—— 

Mr. GOWDY. Is——there a list of names of visa overstayers? 

Ms. BURRIESCI. Oh, so anybody who has overstayed, regardless 

of if it’s a visa or a Visa Waiver Program, those individuals have 

final removal orders and our Immigration and Customs Enforcement agency receives that list. 

Mr. GOWDY. So there’s a list? 

Ms. BURRIESCI. Yeah. 

Mr. GOWDY. Is that a list shared with federally licensed firearms 

dealers? 

Ms. BURRIESCI. I am not sure. 

Mr. GOWDY. Well, it is actually currently against the law for anybody who is here illegally or unlawfully to possess or purchase a 

firearm. And I understood in Mr. Gude’s opening, he wants to create a new list of prohibited persons, which just struck me that 

maybe we ought to find out how good a job we’re doing with the 

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tions that there were for, say, the last 3 years for folks who tried 

to purchase a firearm that were not here legally? 

Ms. BURRIESCI. No, sir. But I can ask ICE that question. 

Mr. GOWDY. Well, it wouldn’t be ICE. It would be the Department of Justice. 

Ms. BURRIESCI. Then I wouldn’t have information because I’m 

with DHS. 

Mr. GOWDY. Well, and the good news for us is we do have that 

information. And it’s an incredibly small number of prosecutions, 

like less than 100. So you can understand some of our skepticism 

when we hear folks calling for a new category of prohibited persons 

that cannot purchase or possess firearms when we’ve done such a 

dreadful job with the current categories. It is currently unlawful, 

illegal for people who are not legally in the country to purchase or 

possess firearms. And my question is, how many of those folks have 

been prosecuted? 

Ms. BURRIESCI. I would have to—— 

Mr. GOWDY. And the number is really small. Let me ask you another question about the terrorism list. What process is afforded a 

U.S. citizen, not someone who has overstayed a visa, not someone 

who crossed the border without permission, but in the American 

system, what process is currently afforded an American citizen before they go on that list? 

Ms. BURRIESCI. I’m sorry, there’s not a process afforded the citizen prior to getting on the list. There is a process should someone 

feel they are unduly placed on the list. 

Mr. GOWDY. Yes, there is. And when I say ‘‘process,’’ I’m actually 

using half of the term due process which is a phrase we find in the 

Constitution, that you cannot deprive people of certain things without due process. So I understand Mr. Gude’s idea, which is wait 

until your right has been taken from you and then you can petition 

the government to get it back. I understand that that’s his idea. 

My question is, can you name another constitutional right that we 

have that is chilled until you find out it’s chilled, and then you 

have to petition the government to get it back? Is that true with 

the First Amendment? 

Ms. BURRIESCI. Sir, there are strict criteria—— 

Mr. GOWDY. That’s not my question, ma’am. That’s not my question. My question is what process is afforded a United States citizen before that person’s constitutional right is infringed? And he’s 

fine with doing it with the Second Amendment. My question is, 

how about the First? How about we not let them set up a Web site 

or a Google account? How about we not let them join a church until 

they can petition government to get off the list? How about not get 

a lawyer? How about the Sixth Amendment? How about you can’t 

get a lawyer until you petition the government to get off the list? 

Or, my favorite, how about the Eighth Amendment? We’re going to 

subject you to cruel and unusual punishment until you petition the 

government to get off the list. Is there another constitutional right 

that we treat the same way for American citizens that we do the 

Second Amendment? Can you think of one? Can you think of one? 

Ms. BURRIESCI. I don’t have an answer for you, sir. 

Mr. GOWDY. I’m out of time. But I’ve got a couple other questions. And I’m sure the chairman will indulge me. Do you know 


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whether the female terrorist in California was subjected to an inperson interview before her K visa was issued? 

Ms. BURRIESCI. As part of the visa process, yes, that individual 

was interviewed. 

Mr. GOWDY. Do you know who interviewed the person? 

Ms. BURRIESCI. I do not have that information. That would be a 

question to ask the State Department. 

Mr. GOWDY. Do you know how long the interview took place, how 

long it lasted? 

Ms. BURRIESCI. That would also be a question for the State Department. They conducted the interview. 

Mr. GOWDY. Do you know what investigation, if any, was done 

into her in terms of education, employment, social media? 

Ms. BURRIESCI. Those are all questions that should be referred 

to the State Department. 

Mr. GOWDY. Who has her immigration file? 

Ms. BURRIESCI. USCIS would have the immigration file. 

Mr. GOWDY. I thought USCIS was a subset of DHS? 

Ms. BURRIESCI. Yes. 

Mr. GOWDY. And you’re with DHS, so why wouldn’t I ask you? 

Ms. BURRIESCI. So the process would start with USCIS for a K– 

1 visa. 

Mr. GOWDY. I know. And then it goes to the State Department. 

Ms. BURRIESCI. And then it goes to the State Department, which 

is where all the checks to see if that individual is eligible for the 

K–Y—K–1 visa—I’m sorry, I even lost my own train of thought. 

Mr. GOWDY. I know exactly where you’re going. 

Ms. BURRIESCI. If someone is eligible for the K—— 

Mr. GOWDY. Mr. Rodriguez was with us yesterday. 

Ms. BURRIESCI. Yes. Then the individual would travel to the 

United States. Of course, there’s vetting done on the individual as 

they travel as any individual is. And then, within 90 days, they can 

apply for legal permanent residency. And then that is also when 

USCIS would get involved and do biographic and—— 

Mr. GOWDY. I understand the process. And I’m out of time. 

I’m just going to make this point before I yield back to the chairman: There’s an application process—we’re not even talking about 

the Visa Waiver Program; we’re talking about the process where 

there actually is a visa issued—there’s an investigation; there’s an 

interview; there’s another interview; and yet we still got it wrong. 

And I would think the chairmen, one of whom is sitting beside me, 

and Chairman DeSantis and Ranking Member Lynch, I would 

think that they would be very interested in her immigration file to 

find out what questions, perhaps, weren’t asked that should have 

been, so we can learn lessons after the 14 are dead, and hopefully, 

we can learn before there are 14 more dead. So I would encourage 

you to ask your boss to make that file available to both the ranking 

member of the full committee, the chairman of the full committee, 

the ranking member of the subcommittee, and the chairman of the 

subcommittee. 

And, with that, I yield back to the chairman. 

Mr. DESANTIS. The gentleman yields back. 

So can you provide that by close of business Friday? 

Ms. BURRIESCI. I’ll take that back. Thank you. 


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Mr. DESANTIS. Can you do it, though? 

Ms. BURRIESCI. I would love to say yes, but I’m not in charge of 

that. So I want to make sure, if not shorter, yes. 

Mr. DESANTIS. Before I recognize the ranking member of the full 

committee, you can’t give us the number of people who are on expired visas? You have staff. Can they just call DHS so we get it 

before the hearing is over? Do you want to take a 5-minute recess 

to make that phone call? This should not be very difficult. 

Ms. BURRIESCI. To find out—— 

Mr. DESANTIS. We have had a number of questions about how 

many people are here on visa—have overstayed their visas. And 

we’ve not been able to get even a ballpark estimate about that. I 

would imagine somebody in this big, sprawling Department has got 

to have some type of information in that regard. So my question 

to you is, is there a way that you can get that to us today? Can 

you make a phone call to do it? Can one of your staff make a phone 

call? 

Ms. BURRIESCI. I will make a phone call. I’m happy to do it. 

Mr. DESANTIS. Do you want to recess for 5 minutes and you’ll do 

it? 

Ms. BURRIESCI. I’m happy to make a phone call. 

Mr. DESANTIS. Okay. Well, the hearing stands in—so we’re not 

going to get—— 

Mr. CHAFFETZ. Will the gentleman yield? 

Mr. DESANTIS. We’ll recognize—— 

Mr. CUMMINGS. No, I don’t mind her making a phone call. I appreciate the courtesy, Mr. Chairman. But if you want to make a 

phone call to help us get issues resolved, I don’t mind waiting. I 

have no problem. 

But thank you, Mr. Chairman. I appreciate it, both chairmen. 

Mr. DESANTIS. We will stand in recess for 5 minutes. And we’ll 

resume at 12:31. 

[Recess.] 

Mr. DESANTIS. We’ll now come to order. 

The chair will recognize the ranking member, Mr. Cummings, for 

5 minutes. 

Mr. CUMMINGS. Mr. Chairman, before we do that, I want to see 

if she got the information. I don’t want that taken off my time. 

Did you get the information? 

Ms. BURRIESCI. I did get some information on the VWP overstay 

numbers. It’s at—I couldn’t get everything. 

Mr. DESANTIS. What’s the number? 

Ms. BURRIESCI. So the VWP overstay rate is—I’m sorry—for citizens of VWP countries, the overstay rate is around 2 percent. 

Mr. DESANTIS. So that means people that have stayed past 90 

days when they came in on the Visa Waiver Program? Or is that 

people who—— 

Ms. BURRIESCI. Citizens—that’s a great question. I believe that 

is true, yes, for business and tourism reasons, so 91-plus days. 

Mr. DESANTIS. Okay. But we will need that in writing. And we 

want to see where you’re getting those numbers, because I know 

there will be people, probably up here, who will disagree with how 

those numbers were arrived at. 

And, with that, we’ll recognize Mr. Cummings for 5 minutes. 


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Mr. CUMMINGS. Thank you very much, Mr. Chairman. 

Ms. Burriesci, as you know, 2 days ago, the House passed legislation to strengthen the security of the Visa Waiver Program, H.R. 

158, the Visa Waiver Program Improvement and Terrorist Travel 

Prevention Act of 2015. Based on the recent terrorist attacks in 

Paris and San Bernardino, Congress needs to act to close the security gaps in the VWP program, and it’s my sincere hope that the 

Senate will take up the House bill and send it to the President’s 

desk as soon as possible. 

Do you believe that H.R. 158 will help DHS’ efforts to implement 

the Visa Waiver Program? 

Ms. BURRIESCI. I assume that’s directed at me? 

Mr. CUMMINGS. Yes, ma’am. 

Ms. BURRIESCI. Yes, absolutely, sir. It always helps to codify 

some of the enhancements in statute because that helps other 

countries be able to point to our statute and help when they need 

to make legal changes in their own systems. 

And the law has a lot of practical security value—I’m sorry, not 

the law—H.R. 158 has a lot of practical security value measures in 

it. So I do think it will assist security, yes, sir. 

Mr. CUMMINGS. And the administration called on Congress to 

enact some of the reforms that are included in H.R. 158. For example, the bill would require that all travelers in the Visa Waiver 

Program be screened against INTERPOL databases to identify 

high-risk travelers. 

Will putting this requirement in the statute help DHS with encouraging compliance with countries participating in the Visa 

Waiver Program? 

Ms. BURRIESCI. Yes, the requirement that VWP countries use 

that database to screen, themselves, for their inbound travelers, 

absolutely. We do it already here in the United States. 

Mr. CUMMINGS. Now, the administration also requested that 

Congress act to accelerate the requirement for 100 percent of VWP 

travelers to use e-Passports. Why is it important for the VWP travelers to use an e-Passport? 

Ms. BURRIESCI. So an e-Passport includes a chip on it, it includes 

the biographic information on a passport, as well as it holds a digital photo. It’s harder to—what’s the word for fraudulently mess it 

up? Sorry for blanking out there for a second. And, therefore, they 

are more secure, they have more secure features in them. 

So we are encouraged by the fact that all VWP countries currently issue e-Passports. And CBP has the capability to read ePassports at our POEs, at our ports of entry. 

Mr. CUMMINGS. You know, Ms. Kephart, I missed your testimony, but I want to make sure we’re clear on some things that go 

to the truth, the whole truth, and nothing but the truth. 

Ms. KEPHART. I understand. 

Mr. CUMMINGS. And you’re sworn, you know. I want to remind 

you of that. 

And the American people get kind of frustrated when they see 

witnesses come before them who might have an interest in themselves or their companies making a lot of money off of their testimony in some way or another. 


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I’m not saying that’s what you’re doing. I just want to be clear. 

I think it’s very important to not only the integrity of this committee but the integrity of this Congress and the people who are 

watching this that we know exactly what your situation is. 

Now, I want to reiterate, you are the director of homeland security solutions for—what’s the name of the company? 

Ms. KEPHART. It’s MorphoTrak, sir. 

Mr. CUMMINGS. And your job is to sell biometric technology and 

systems to the government. Is that correct? 

Ms. KEPHART. As of 3 months ago. 

Mr. CUMMINGS. Yeah, but you’re employed. 

Ms. KEPHART. I spent years doing—— 

Mr. CUMMINGS. You’re getting a paycheck. 

Ms. KEPHART. Yes, sir. 

Mr. CUMMINGS. Right. Okay. 

Ms. KEPHART. Absolutely, I do. 

Mr. CUMMINGS. That’s the big deal. You’re getting a paycheck. 

Ms. KEPHART. Right. And I am happy—I filled out the form in 

my personal capacity. I clearly made a mistake, as Mr. Cartwright 

pointed out earlier. And I am happy to go back and have our legal 

counsel—engage them and do it correctly. 

Mr. CUMMINGS. Well, I just want to make it clear so that the 

people watching this—— 

Ms. KEPHART. I didn’t do it on purpose, sir. 

Mr. CUMMINGS. Ma’am, I’m not saying you that did it on purpose. 

Ms. KEPHART. Yeah. 

Mr. CUMMINGS. But I’m telling you that when you come before 

us—— 

Ms. KEPHART. I understand. 

Mr. CUMMINGS. —and you sign these documents, you should pay 

close attention to what you’re doing. Because I can tell you, there 

are people on this committee, under certain circumstances, that 

would refer you for some criminal action. I’m just telling you. I’ve 

seen it many times. 

And so I don’t know whether you—I mean, it doesn’t take a rocket scientist to read this—this is a pretty simple form. 

And so, in fact, your company has millions of dollars in Federal 

contracts. Is that incorrect? I see you’re frowning up, but am I 

wrong? 

Ms. KEPHART. We have Federal contracts, yes, sir. 

Mr. CUMMINGS. Does it amount to millions of dollars? 

Ms. KEPHART. I actually don’t know the answer. A few million 

dollars, yes. 

Most of our work actually is with State and local. We provide the 

ABIS systems to many of the States that are represented here 

today, are the criminal biometric systems. Federal, we don’t have 

much of a footprint. We do at DHS recently. We did acquire a 

USCIS Live Scan for our biometrics, yes. 

Mr. CUMMINGS. Okay. So you’re telling me you got a couple billion—— 

Ms. KEPHART. But not with Customs and Border Protection, who 

I—— 


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Mr. CUMMINGS. Ms. Kephart, I only have a few minutes. I only 

have a minute. 

Mr. DESANTIS. Actually, your time has expired. So are you going 

to—— 

Mr. CUMMINGS. Well, I just want to have as much time as Mr. 

Gowdy had. He had 7 minutes. May I have 1 more minute? 

Mr. DESANTIS. Well, we have a classified briefing in a few minutes. I have at least one more witness—three more witnesses on 

my side. So you made your point. I get it. We bring contractors 

here all the time that do that. 

So the gentleman’s time has expired. 

I recognize the chairman of the full committee for 5 minutes. 

Chairman CHAFFETZ. It is my commitment to the ranking member that we will work together to rectify this. I don’t care what side 

of the aisle, where you are in the political spectrum, you do not 

come before the United States Congress and fill out a very simple 

form and get it wrong. Okay? Ever. 

Ms. KEPHART. I apologize. 

Chairman CHAFFETZ. And that may not cut it. I appreciate the 

apologies, but that may not cut it. And I’ll work with the ranking 

member on that to follow up. There’s no excuse for that. 

Ms. Burriesci, who do you report to? 

Ms. BURRIESCI. I report to Assistant Secretary Seth Stodder. 

Chairman CHAFFETZ. And this report that we’ve been talking 

about, how long has it been in process? 

Ms. BURRIESCI. It has been in process for, I believe, over a year. 

I don’t have the exact timeframe, but it’s over a year. 

Chairman CHAFFETZ. And are you participant in finalizing that 

report? 

Ms. BURRIESCI. It has been months since I have seen that report. 

Chairman CHAFFETZ. Who is in charge of that report? 

Ms. BURRIESCI. It is a CBP report. 

Chairman CHAFFETZ. Give me a name. When I send the subpoena that was suggested by the Democrats, who do I send it to? 

I’m going to send it to the Secretary, but who is responsible for this 

report? 

Ms. BURRIESCI. Sir, I believe, if you want—that question, I believe the Secretary of Homeland Security. 

Chairman CHAFFETZ. Okay. 

Let’s move on. The entry/exit program, that’s your responsibility, 

right, in part? You’re in charge of screening. How is that coming 

along, the entry/exit program? 

Ms. BURRIESCI. So, actually, we have a lot of good news on the 

biometric entry/exit front. And we had the pleasure of briefing your 

staff last week on those—— 

Chairman CHAFFETZ. I don’t want to hear about staff briefings 

last week. I’m asking you—it is currently law that we’re supposed 

to have an entry/exit program, correct? 

Ms. BURRIESCI. Sir, we have exit operational at 10 airports—at 

10 locations, sorry, today. We are—— 

Chairman CHAFFETZ. And there are how many airports overall? 

Ms. BURRIESCI. There’s hundreds of airports, sir. 

Chairman CHAFFETZ. And so we have it at 10 of them. Okay. 


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Ms. BURRIESCI. I agree, it’s not—I acknowledge it is not nationwide, a biometric exit system, today. I acknowledge that. 

Chairman CHAFFETZ. What percentage of the people leaving the 

country are you able to capture? 

Ms. BURRIESCI. I may have that with me, but I have to look. 

I do not have that. I’m sorry, I do not have that statistic with 

me. 

Chairman CHAFFETZ. When will you give me that statistic? 

Ms. BURRIESCI. I will try to get that to you within 24 hours if 

I can reach—— 

Chairman CHAFFETZ. Thank you. 

Ms. BURRIESCI. —the CBP. Absolutely. 

Chairman CHAFFETZ. What percentage of the people coming into 

the country are fingerprinted? 

Ms. BURRIESCI. I believe there are very few exceptions to who 

would not—— 

Chairman CHAFFETZ. I think you said earlier all of them. 

Ms. BURRIESCI. Everybody gets fingerprinted upon entry. I think 

there are very few exceptions. 

Chairman CHAFFETZ. Can you think of any exceptions? 

Ms. BURRIESCI. For some diplomatic visas. 

Chairman CHAFFETZ. What percentage—— 

Ms. BURRIESCI. And I believe there’s one more, but I just 

can’t—— 

Chairman CHAFFETZ. What percentage of the land entrants, people coming across on the land, what percentage of those fingerprints are captured? 

Ms. BURRIESCI. I can come back with that. 

Chairman CHAFFETZ. You were so certain before. You said it was 

all of them. So isn’t the answer 100 percent or no? 

Ms. BURRIESCI. There are a few exceptions. I know there are diplomatic visas, and I believe there may be some exceptions for certain Canadians. And that’s why—I didn’t intentionally—— 

Chairman CHAFFETZ. Yeah, but the problem is you are—how 

long have you been in this role? 

Ms. BURRIESCI. In my current role? Since 2012. 

Chairman CHAFFETZ. I think we expect you to know this. 

What about the seaports? If you come in on a cruise line, what 

percentage of those people are fingerprinted coming back in? 

Ms. BURRIESCI. Sir, I know the policies and the processes. I’m 

getting asked a lot of very specific stats. And it’s not that I don’t 

want to share my stats. As soon as I can get back to the Department and the systems, run them and we get them, I’m happy to 

share any stats. I’m not trying to at all withhold information. 

Chairman CHAFFETZ. Do you know what percentage of the passport chips work? 

Ms. BURRIESCI. I didn’t realize that they didn’t work. 

Chairman CHAFFETZ. Okay. So—— 

Ms. BURRIESCI. I’m sorry, I don’t understand where you’re—— 

Chairman CHAFFETZ. It’s something like only 60 percent of the 

time those passport chips actually do work. You’re supposed to be 

the expert on this. I mean, this should be just right off the top of 

your head. You’re coming before Congress, and I recognize that you 

don’t normally come and testify here, but they’ve spent so much 


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time briefing and making sure you get it right. You should know 

that the passport chips don’t work. That’s a big problem. 

Ms. BURRIESCI. Sir, I spent ample time briefing and learning and 

making sure off the top of my head I knew the Visa Waiver Program and talked about all the security elements. I’m getting a lot 

of statistical questions that I just don’t have with me. But, otherwise, I would absolutely share them with you. And, as I’ve said, I’m 

happy to get them to you. I just don’t have them with me today. 

Chairman CHAFFETZ. The questions that I just asked you, what’s 

a reasonable time for you to get that information? 

Ms. BURRIESCI. I will get them—as soon as I have them, I will 

share them. 

Chairman CHAFFETZ. Okay. I yield back. 

Mr. DESANTIS. The gentleman’s time has expired. 

The chair now recognizes Mr. Hice for 5 minutes. 

Mr. HICE. Thank you, Mr. Chairman. 

Ms. Burriesci, I will just continue. What would it take for a country to be removed from the Visa Waiver Program? 

Ms. BURRIESCI. Well, we have a host of things that we can do on 

a Visa Waiver Program that is not meeting standards, so termination is kind of where we would see the last resort. That doesn’t 

actually help us—— 

Mr. HICE. Well, that’s my question. What would be the last resort? What would it take—— 

Ms. BURRIESCI. Termination would be the last resort. I mean, 

that is where—— 

Mr. HICE. What would it take to be terminated? 

Ms. BURRIESCI. —there are strong security concerns or contradictory interests to the United States. That would lead to termination. 

Mr. HICE. All right. That’s pretty vague. ‘‘Strong security concerns,’’ what does that mean? 

Ms. BURRIESCI. So when we’re reviewing a VWP country, when 

we go and do our reviews, and even through the continuous monitoring that occurs outside of reviews, we’re looking at their counterterrorism standards, border security, law enforcement, immigration, and document issuance standards. 

So if any of those became a concern to the United States, certainly a security concern, that would be one of the things that are 

considered, among other measures. 

Mr. HICE. If I’m hearing you correctly, then, if any one of those 

issues that you just mentioned became a question for the United 

States, that country would be terminated? 

Ms. BURRIESCI. Well, there’s a big scale of whether something becomes a concern and whether it, you know, is of a level—— 

Mr. HICE. Well, you just said, if any of these were a concern, 

they would be removed. Is this not what you’re saying now? 

Ms. BURRIESCI. Well, if something becomes a concern and—it is 

in the interest of the United States to work with the countries and 

raise the security standards. So we have other measures besides 

termination. There’s suspension, and there’s provisional status. 

And we also have the ability to lower ESTA validity period, which 

is—— 

Mr. HICE. Okay. Well, let’s move on. I have several questions. 

Has removal ever taken place? Has termination taken place? 


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Ms. BURRIESCI. Yes, sir. 

Mr. HICE. How often? 

Ms. BURRIESCI. We have done it twice since 2000. 

Mr. HICE. Okay. So it’s happened twice. 

Is there a penalty for a country that fails to share information 

regarding individuals who may pose a threat to the United States? 

Ms. BURRIESCI. We can take a host of actions on a country that 

isn’t sharing, but all the countries—— 

Mr. HICE. So there is a penalty. 

Ms. BURRIESCI. Well, what I’m saying is there are lots of things 

we can do, and I’ve named some of them. We can change an ESTA 

period, we can put a country on provisional status, we can suspend 

a country, or we can terminate a country. 

Mr. HICE. Is that all subjective, or is there a process? When do 

you know when that occurs? 

Ms. BURRIESCI. DHS would never do something without the consultation of State Department, as we do with all things for the Visa 

Waiver Program. And if something were certainly to rise to that 

level, we’d bring in our interagency partners, as well, even outside 

of just the State Department. 

Mr. HICE. Okay. 

Let’s see. I’m assuming that—well, let me ask you this. What 

about these individuals who are being radicalized who have not 

been to countries like Iraq or Syria? Is anything being done to 

monitor that group? 

Ms. BURRIESCI. Countries that have been? 

Mr. HICE. Individuals who have been radicalized but they have 

not gone to countries like Iraq or Syria, are these individuals being 

monitored in any way? 

Ms. BURRIESCI. I mean, certainly, if we are aware, the FBI might 

have an investigation open on them. But, I mean, the greatest concern and the thing, you know, that certainly keeps me up at night 

is the individuals that we’re not aware and that is their mindset 

and—— 

Mr. HICE. So you don’t know if they’re being monitored or not. 

Ms. BURRIESCI. That I—— 

Mr. HICE. You don’t know. 

Ms. BURRIESCI. I don’t know the answer to that. 

Mr. HICE. Okay. 

I’m assuming you don’t know how many passports are reported 

stolen each year. Is that correct? 

Ms. BURRIESCI. I don’t know how many are reported stolen each 

year, but I know that—— 

Mr. HICE. Do you know what the procedure would be when a 

passport is reported stolen? How do we make sure that that stolen 

passport is not used fraudulently by another individual? 

Ms. BURRIESCI. So for all manifest data that we receive, we are— 

I’m sorry—for all travelers coming into the United States, we are 

running that manifest data against the stolen and lost travel document. Absolutely. And that includes documentation—sorry—that 

includes records that the United States puts in, VWP countries put 

in, and other countries. 

Mr. HICE. Do you believe the other—well, it looks like my time 

has expired. 


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Mr. DESANTIS. The gentleman’s time has expired. 

We do have this briefing, but I want to give Mr. Carter the last 

round. So we’re going to recognize Mr. Carter for 5 minutes, and 

then we’re going to recess because we do have to go over to the 

California hearing. 

Mr. CARTER. Thank you, Mr. Chairman. I appreciate this. 

And thank all of you for being here today. 

Ms. Burriesci, let me ask you something. I’m still concerned 

about this overstay. And one of your other panelists has noted in 

her written remarks that ‘‘the Visa Waiver Program tourist overstay issue remains. The GAO tells us that 43 percent of VWP tourists make up the overstay population in the U.S.’’ 

So 43 percent of all the overstay population in the U.S. comes 

from the Visa Waiver Program is what this is asserting. Would you 

agree with that, yes or no? 

Ms. BURRIESCI. No. As I stated—— 

Mr. CARTER. Okay. Okay. 

Ms. BURRIESCI. —earlier, it is around 2 percent. 

Mr. CARTER. No, but she’s saying of all the overstay. So that’s 

inclusive of all the other programs, as well. 

But you brought us a number of 2 percent. Now, can you tell me 

what that number is? I mean, 2 percent of what? 

Ms. BURRIESCI. I wasn’t able to get all that while I was on the 

phone. 

Mr. CARTER. Okay. So you don’t know if it’s 2 percent of a million, 2 percent of 100,000? 

Ms. BURRIESCI. I don’t. 

Mr. CARTER. Okay. But can you get that for us? 

Ms. BURRIESCI. I will take that question back. 

Mr. LYNCH. Will the gentleman yield? 

Mr. CARTER. I yield. 

Mr. LYNCH. The number is 20 million people per year. Two percent comes out to 400,000 per year overstaying their visas under 

the Visa Waiver Program. 

Mr. CARTER. Okay. And I’ll reclaim my time. 

Tell me, do you know what the average overstay is, what the 

overage length of time the overstay is? 

Ms. BURRIESCI. That’s going to vary. Because even if it’s 1 day, 

it’s an overstay. 

Mr. CARTER. But an average—— 

Ms. BURRIESCI. I don’t have that information. 

Mr. CARTER. Okay. Can you get me that information? In other 

words, of all the overstay, that 2 percent of the—what was it? 

400,000—of the 400,000, the average overstay is 3 months, is 6 

months, is 9 months, whatever it is. 

And then also I’d like to know the longest. I mean, have you got 

somebody who’s been on that list, that overstay list, for 3 years or 

5 years? 

But, most importantly—and I hope you can answer this here 

today; you should be able to—what are we doing about it? What 

are we doing about those people who are on that overstay list? 

Ms. BURRIESCI. So when you become an overstay, you have a 

final removal order. And ICE, which is an agency, Immigration and 


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Customs Enforcement agency within—Citizenship, not Customs— 

within DHS is responsible for removing those individuals. 

Mr. CARTER. So you turn it over to ICE, and ICE goes and looks 

for them? 

Ms. BURRIESCI. Yes. ICE is the responsible agency to remove 

overstays. 

Mr. CARTER. Okay. Can you tell me what ICE is doing about it? 

Are they out looking for them right now as we speak? 

Ms. BURRIESCI. Every single day. 

Mr. CARTER. Every single day they’re out looking for this person? 

Ms. BURRIESCI. Every single day. Absolutely. And they are 

prioritizing those that are national security and public safety concerns first, because that’s in the interest of the United States. 

Mr. CARTER. Okay. 

And let me ask you this. What can we do to help you? What can 

we, as Congress, do to help you with this problem? Tell me. Tell 

me what we can do. 

Ms. BURRIESCI. I am sure ICE has a long list of ways that you 

can help, and I’m sure they would be very encouraged to be asked 

that question. 

Mr. CARTER. You know, I’m bothered that—‘‘I just pass it off to 

ICE. It ain’t my problem anymore. It’s their problem.’’ 

Ms. BURRIESCI. No, I’m not trying to pass it off at all, sir. I just 

don’t want to—I want to give you a complete and comprehensive 

answer. It is a great question. We thank you for asking that question. 

Mr. CARTER. Okay. 

All right. Let’s shift gears here. Let’s talk about ESTA, the Electronic System for Travel Authorization. It’s an automated, webbased system used to determine an alien’s eligibility to travel without a visa in the United States for tourism and business. 

Is this the only place, in the United States, or do other countries 

have this type of program? Are we the only ones with this type of 

program? 

Ms. BURRIESCI. It’s a reciprocal program. So United States citizens don’t need a visa when we’re traveling to VWP countries, as 

well. 

Mr. CARTER. So it is a reciprocal program with the other 38 countries. 

Ms. BURRIESCI. Yes. 

Mr. CARTER. So they have an ESTA, as well. And you can fill—— 

Ms. BURRIESCI. I was going to say they might call it something 

else, but yes. 

Mr. CARTER. But it’s basically the same thing. And you can fill 

that application out online, correct? 

Ms. BURRIESCI. For some countries, yes. 

Mr. CARTER. So, once you’re issued that ESTA, how long is it 

good for? 

Ms. BURRIESCI. It’s typically good for 2 years. 

Mr. CARTER. Two years. Do you think that needs to be tightened 

up? 

Ms. BURRIESCI. So we have the ability to change the ESTA validity period today, but the important thing to remember is an ESTA 

is actually recurrently vetted. So, for the validity period of 2 years, 


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if anything changes, if someone ends up on the terrorist watch list, 

for example, we know real time, and we will revoke or deny that 

ESTA application. 

Mr. CARTER. I understand that, but 2 years is a long period of 

time. 

Ms. BURRIESCI. Well, a business or tourist visa is 10 years. And 

every 2 years, we’re going to—— 

Mr. CARTER. But two wrongs don’t make a right. I mean, come 

on now. Don’t give me an answer saying, ‘‘Well, this is even worse.’’ 

Ms. BURRIESCI. Well, I think the fact that we’re recurrently vetting is going to determine whether somebody—if somebody becomes 

a national security concern, we get that information in real time, 

and we’re able to take an action on it. 

Mr. CARTER. Okay. Mr. Chairman, I yield back. 

Mr. DESANTIS. The gentleman’s time has expired. 

The chair is going to recognize Mr. Lynch for 1 minute. 

Mr. LYNCH. All right. Thank you. 

Ms. Burriesci, thank you very much. I know it’s been a difficult 

hearing for you. 

Those four men to your right, the well-dressed gentlemen in the 

front row, do they work for you? 

Ms. BURRIESCI. Some of them. 

Mr. LYNCH. Okay. 

Ms. BURRIESCI. Not all of them. 

Mr. LYNCH. Well, do you have a numbers guy? Because you really needed your numbers guy today, or your numbers gal. 

Ms. BURRIESCI. Well, I have the ESTA numbers, I have the 

ESTA denial numbers, I have the—— 

Mr. LYNCH. Well, wait a minute. You had a whole bunch of numbers you didn’t have, and we had to recess the hearing. So I have 

a feeling you’re going to be back before this committee again. This 

issue is not going away. And I would just recommend, next time 

I want to see you walk in arm-in-arm with your numbers person. 

Ms. BURRIESCI. I will have any list of stats for certain. 

Mr. LYNCH. Okay. 

The other thing is this. I want to follow up on the gentleman’s 

previous question. Twenty million people a year, 2 percent overstay 

rate, 400,000 people overstaying their visa. So, in addition to what 

the gentleman asked for, I would also like the country of origin of 

where those people are coming from and overstaying. 

And is there a list, is there a list—you say they prioritize, ICE 

prioritizes. Is there a list that we’re running? Because, you know, 

obviously, the problem should be self-evident. 

Thank you. I yield back. 

Mr. DESANTIS. And what we’re going to do is we’re going to reduce all the questions that we’ve asked, that we want the information, we’re going to reduce that to writing. We’re going to send that 

to you soon. And then you guys can respond to that in due time 

but, you know, not too long. It should be readily apparent. 

And then I am going to make the additional request that the Department produce the file for the committee on Tashfeen Malik. We 

would like to get that next week. We very well may be back here 

next week, and that is very, very important for us to see so that 

we can evaluate as we move into other phases of oversight. When 


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we’re looking at our visa programs, we want to make sure—I mean, 

clearly, we don’t want a visa program that allows somebody like 

her to come into this country. 

So Chairman Chaffetz is recognized. 

Chairman CHAFFETZ. Ms. Burriesci, these visa overstays, you 

should have a list of every one of them, right, by individual name? 

Sorry, I need you to say it for the record. Do you have a list of 

each of their names? 

Ms. BURRIESCI. I personally don’t, but the Department would 

have a list of individuals with final removal orders who have overstayed. 

Chairman CHAFFETZ. So this is, in part, why we need a entry/ 

exit program, because you don’t truly know if they’ve left, correct? 

You only know if they’ve left if they’ve traveled by airplane, correct? 

Ms. BURRIESCI. We have a biographic exit system, but, certainly, 

including biometrics on exit is an additional certainty, yes. 

Chairman CHAFFETZ. Where do you do that? What do you mean, 

‘‘biographical’’? What does that mean? 

If you fly into JFK, you travel around, go to New York, and then 

you decide to go up to Toronto, are you telling me that you’re capturing the names of who’s leaving? Where do you actually capture 

the names of people that leave the country? 

Ms. BURRIESCI. If it would help, we can provide something written that actually lays out the process of what occurs—— 

Chairman CHAFFETZ. I think I understand the process. 

Ms. BURRIESCI. —if that works. 

Chairman CHAFFETZ. It does. I would appreciate that. We’ll add 

that to the list. 

Is it fair to say that, most ports, you don’t capture who exits the 

country? 

Ms. BURRIESCI. We get the manifest data, and we’ll use that, and 

we use our arrival/departure information system. But—— 

Chairman CHAFFETZ. Do most people come into this country on 

airplane, or do they come in by vehicle and car? 

Ms. BURRIESCI. I believe—— 

Chairman CHAFFETZ. Or vehicle, cars, and walking? 

Ms. BURRIESCI. I would anticipate it would be air, but I don’t 

know. 

Chairman CHAFFETZ. Again, you’re in charge of this stuff. 

And so when will you get us that information? 

Ms. BURRIESCI. I’m not in charge of the operations. But I am in 

charge of working on the—— 

Chairman CHAFFETZ. You’re in charge of screening. Your title 

says ‘‘screening’’ in it. 

So if they come in on a Visa Waiver Program by air and depart 

not by air, what percentage of those people do you capture? 

Ms. BURRIESCI. So that is what I would say is one of the gaps 

that we have acknowledged, if someone comes in by air and leaves 

by land, yes. 

Chairman CHAFFETZ. And there are literally hundreds of thousands of people who may have come here legally but now they’re 

here illegally, correct? 

Ms. BURRIESCI. I don’t have that number with me, but—— 


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Chairman CHAFFETZ. Is it hundreds of thousands of people? 

Ms. BURRIESCI. I don’t have that information with me. 

Chairman CHAFFETZ. The answer is yes, correct? I mean, Mr. 

Lynch laid it out there for you. 

Ms. BURRIESCI. I recognize that I’m under oath, and I just don’t 

want to provide misinformation to you. It is not that I don’t want 

to provide information to you. 

Chairman CHAFFETZ. So it’s somewhere between hundreds of 

thousands and potentially the low millions of people that came 

here legally through the Visa Waiver Program, the topic that we’re 

discussing, and just decided they’re not going to leave. 

And you should have a list of those people, right? Do you share 

any of that—who else gets that list? Who do you share that list 

with? 

Ms. BURRIESCI. That list is shared with—it’s shared with interagency partners, and it’s shared across—yeah. 

Chairman CHAFFETZ. Who do you share that list with? 

Ms. BURRIESCI. I don’t have the list with me. 

Chairman CHAFFETZ. You’re the Deputy Assistant Secretary for 

Screening Coordination. And in your job description, of the one 

paragraph on the Web site, you’re supposed to be the one that’s coordinating with the other departments and agencies. 

When you have somebody who’s a visa overstay, do you consider 

that a threat to the United States of America? 

Ms. BURRIESCI. Sir, sometimes there are people who overstay 

that are grandmas that come over to take care of their grandchildren. I wouldn’t call them a threat. I’m not saying that they 

shouldn’t abide by the terms of their admission period, but calling 

them a threat is a totally different, you know, circumstance. 

Chairman CHAFFETZ. So you just assume that everybody that 

comes here on this Visa Waiver Program is not a threat? 

Ms. BURRIESCI. I didn’t say that either. Anybody who comes and 

overstays their period of admission here receives that final removal 

order, and we go after them and prioritize them based on national 

security and public safety first—— 

Chairman CHAFFETZ. When do they get—— 

Ms. BURRIESCI. —using the resources that we have. 

Chairman CHAFFETZ. When do they get that removal order? 

Ms. BURRIESCI. I mean, you know, if you’re here for VWP and it’s 

90 days, on the 91st day you’re considered to be an overstay. 

Chairman CHAFFETZ. You said they give them the removal order. 

Who gives them the removal order? 

Ms. BURRIESCI. The removal order would come from ICE. 

Chairman CHAFFETZ. And how many—— 

Ms. BURRIESCI. I can check on the timeframe. 

Chairman CHAFFETZ. Will you also give us the list of how many 

of those have been sent out? 

Is it ICE’s responsibility to then remove them? 

Ms. BURRIESCI. Yes, sir. 

Chairman CHAFFETZ. And we’ll be inquiring as to how often that 

happens. 

I want to go back to the list. I’ve probably gone over my time, 

but when you have somebody who has then overstayed their visit, 

come here on the Visa Waiver Program, which law enforcement enVerDate Nov 24 2008 10:50 Jul 13, 2017 Jkt 000000 PO 00000 Frm 00118 Fmt 6633 Sfmt 6633 H:\25881.TXT APRIL

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tities do you share that with? Which databases does that go into? 

Can you name one? 

Ms. BURRIESCI. So we will have within DHS who has the final 

removal orders. I believe it’s shared with State and local, but I 

don’t want to say that with certainty right now. So, you know, I 

will do my very best to get you the information that the Department has on those questions. 

Chairman CHAFFETZ. Who is the specific person that would 

know? You report to? Sorry, you told me earlier. The person you 

report to is? 

Ms. BURRIESCI. Assistant Secretary Seth Stodder. I’m in the Office of Policy. 

Chairman CHAFFETZ. And that person reports to? 

Ms. BURRIESCI. Assistant Secretary Alan Bersin. 

Chairman CHAFFETZ. And that person reports to? 

Ms. BURRIESCI. The Secretary of Homeland Security. 

Chairman CHAFFETZ. Jeh Johnson. 

Ms. BURRIESCI. Yes, sir. 

Chairman CHAFFETZ. The request we sent was for Jeh Johnson, 

and Jeh Johnson sent you as the expert on these topics. So, you 

know, this is why I think we need help on both sides of the aisle 

here. But Mr. Johnson, the Secretary himself, has got to come answer these questions. 

You strike me as a very nice person, but these are basic questions about the functionality here. And when we’re having a congressional hearing, it is a waste of this committee’s time to send 

somebody who doesn’t know the answers to very basic questions. 

And that’s why we will continue to pursue very vigorous oversight and look forward to robust discussions. You’re accelerating 

the need for us to have multiple hearings on this. 

I yield back. 

Mr. DESANTIS. The chairman yields back. 

And we are also anticipating the responses to all the questions 

that have been asked and, obviously, anticipating being able to review the file for Tashfeen Malik. 

Mr. DESANTIS. So I want to thank the witnesses. 

The committee stands adjourned. 

[Whereupon, at 1:17 p.m., the subcommittees were adjourned.] 


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APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD


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... E~G~A~_Q __ _ Ac:countaDIIHy • Integrity ... Reliability 

United States Government Accountability Office 

Washington, DC 20548 

March 6, 2015 

The Honorable Dianne Feinstein 

United States Senate 

Subject: Update on Firearm and Explosives Background Checks Involving Terrorist 

Watchlist Records 

As you requested, this letter updates information on firearm and explosives background 

checks involving terrorist watchlist records that we presented in our May 2010 testimony and 

most recently updated in February 2013. 1 Under the Brady Handgun Violence Prevention 

Act and implementing regulations, the Federal Bureau of Investigation (FBI) and designated 

state and local criminal justice agencies use the FBI's National Instant Criminal Background 

Check System (NICS) to conduct checks on individuals before federal firearms licensees 

{gun dealers) may transfer any firearm to an unlicensed individual. 2 Also, to assist the 

Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the FBI conducts NICS 

background checks on individuals seeking to obtain a federal explosives license or permit. 3 

Under federal law, there is no basis to automatically prohibit a person from possessing 

firearms or explosives because they appear on the terrorist watch list. 4 Rather, there must be 

a disqualifying factor {i.e., prohibiting information) pursuant to federal or state law, such as a 

felony conviction or illegal immigration status. 

Approximately 21.1 million background checks were run through NICS during calendar year 

2013, of which about 9.3 million were processed by the FBI's NICS Section and about 11.8 

million by designated state and local criminal justice agencies. In response to a 

recommendation in our January 2005 report, the FBI began processing all NICS background 

checks involving terrorist watch list records in July 2005-including those that were initially 

generated via state operations-to ensure consistency in handling-' According to FBI 

officials, while the FBI processes these checks, states that initially generated them are 

required to report the final disposition of every transaction to NICS, including whether the 

transaction was allowed to proceed or was denied. 

1

See GAO, Terrorist Watch List Screening_· FBI Has Enhanced Its Use of Information from Firearm and 

Explosives Background Checks to Support Counterterrorism Efforts, GA0-10-703T (Washington, D.C.: May 5, 

2010); and GAO, Update on Firearm and Explosives Background Checks Involving Terron'st Watch List Records 

(Washington, D.C .. Feb. 5, 2013). 

2

Brady Handgun Violence Prevention Act, Pub. L No. 103-159, 107 Stat. 1536 (1993). 

3

See Safe Explosives Act, Pub. L. No. 107-296, 116 Stat. 2135, 2280 (2002) (Title XI, Subtitle C of the 

Homeland Security Act of 2002), as amended 

4

The FBI's Terrorist Screening Center maintains the U.S. government's consolidated terrorist watchlist, which 

contains information about individuals known or suspected to be or have been engaged in conduct constituting, 

in preparation for, in aid of, or related to terrorism and terrorist activities. Applicable records from the watchllst 

are searched during NICS background checks 

5

See, GAO, Gun Control and Terrorism: FBI Could Better Manage Firearm-Related Background Checks 

Involving Terrorist Watch List Records, GA0-05-127 (Washington, D.C .. Jan. 19, 2005) 
117 


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This update provides FBI statistics for calendar years 2013 and 2014. Specifically, from 

January 2013 through December 2014, FBI data show that individuals on the terrorist 

watch list were involved in firearm-related background checks 485 times, of which 455 (about 

94 percent) of the transactions were allowed to proceed and 30 were denied, as shown in 

table 1. 6 Overall, since NICS started checking against terrorist watch list records in February 

2004, FBI data show that individuals on the terrorist watchlist were involved in firearm or 

explosives background checks 2,233 times, of which 2,043 (about 91 percent) of the 

transactions were allowed to proceed and 190 were denied. 7 The FBI does not know how 

often a firearm was actually transferred or if a firearm or explosives license or permit was 

granted, because gun dealers and explosives dealers are required to maintain but not report 

this information to the FBI. 

Table 1: Number of National Instant Criminal Background Check System (NICS) Transactions 

lnvolvinq Individuals on the Terrorist Watchlist, February 2004 throllfl_h December 2014 

Calendar year Valid matches Allowed to proceed Denied 

2004 (beginning in 48 43 5 

Februarv) 

2005 149 141 8 

2006 179 153 26 

2007 287 259 28 

2008 246 228 18 

2009 272 250 22 

2010 272 247 25 

2011 142' 130! 12 

2012 153' 137 16 

2013 256 240 16 

2014 229 215 14 

Total 2,233" 2,o43 190 Source. GAO analySIS of FBI data. 

aBecause of an issue with a computer programming change, the FBI could not provide complete statistics for certain NICS 

background checks that were initiated by state and local agencies during calendar years 2011 and 2012. The NICS Section 

implemented a technical change in February 2013 to address this issue 

bThe total number of NICS transactions involving individuals on the terrorist watch list from February 2004 through December 

2014 does not include complete statistics for calendar years 2011 and 2012 

As shown in table 1, because of an issue with a computer programming change, the FBI 

could not provide complete statistics for certain NICS background checks that were initiated 

by state and local agencies during calendar years 2011 and 2012. Specifically, NICS was 

not capturing statistics when agencies did not provide the FBI with information on whether 

the transactions were allowed to proceed or were denied within 24 hours of the NICS check. 

The FBI had automatically purged these records from NICS-consistent with federal lawand could not determine how many records had been purged' In February 2013, the NICS 

6

According to the NICS Section, there were no explosiVes-related background checks processed through NICS 

during calendar years 2013 and 2014. 

7

0fthe 2,233 transactions, 2,230 involved firearm-related background checks and 3 involved explosives checks. 

All 3 explosives checks were allowed to proceed. As discussed below, the total number of NICS transactions 

involving individuals on the terrorist watch list from February 2004 through December 2014 does not include 

complete statistics for calendar years 2011 and 2012. 

8

1n July 2004, the NICS Section implemented a provision in federal law requiring that any personal identifying 

information, such as name or date of birth. in the NICS database related to certain checks be destroyed within 24 

hours after a transfer decision has been made. See Consolidated Appropriations Act, 2004, Pub. L. No. 108-199. 

§ 617, 118 Stat 3, 95. 

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118 

Æ 


KING-6430 with DISTILLERInsert offset folio 57 here 25881.057

Section implemented a technical change to allow NICS to capture and report complete data 

on the disposition of all transactions matched to terrorist watch list records. According to the 

NICS Section, the reported data for 2013 are complete since the NICS Section manually 

captured data on transactions initiated by state and local agencies during January 2013. 

Of the 30 NICS transactions involving individuals on the terrorist watch list that were denied 

during calendar years 2013 and 2014, FBI data show that the reasons for denials included 

felony conviction, under indictment, adjudicated mental health, misdemeanor crime of 

domestic violence conviction, fugitive from justice, and controlled substance abuse. 

If you or your staff have any questions about this update, please contact me at (202) 512-

9627 or maurerd@gao.gov. 

Sincerely yours, 

David C. Maurer, Director 

Homeland Security and Justice Issues 

Page3 NICS and Terrorist Watchlist Records