Published by The Lawfare Institute
in Cooperation With
Published by The Lawfare Institute
There’s diplomacy and then there is chutzpah. I have to think that the latest move by the European Union on the visa front is closer to the later than to the former. The EU has demanded that, within six months, the US change its visa policy and admit the citizens of Poland, Romania, Bulgaria, Cyprus and Croatia without a visa. As of today those citizens still need an entry permit to travel to the US. The genesis for this dispute lies in a program known as the Visa Waiver Program (or “VWP”). VWP has been around for decades. As initially conceived it was a reciprocal program allowing visa free travel between the US and other countries for tourist purposes. It’s why, for example, when an American visits France he can travel on his passport without a visa, just as a French tourist can come to the US without first going to the US consulate in Paris for a visa and permission. In its initial conception, back before 9/11, the VWP program was limited by its structure as an immigration program – entry into the program was tied to the visa “overstay” rate for another nation. The overstay rate, as its name implies, is a reflection of how many citizens from a particular country (say France) come to the US on a 90-day tourist visa and then overstay their permission. While some overstays are accidental (90 days is not, usually, equal to 3 months and lots of folks miss the deadline by a day or two in confusion) many others were (and are) motivated by economic migration factors – they come as tourists and stay to live and work. [It’s a little known fact that all visa overstays (which include overstays on student visas; business visit visas; as well as tourist visas) probably account for 40% of the total population of those illegally present in the US.] And so, one of the factors that has driven the VWP program is that it is only open to countries from which low levels of illegal economic migration (and thus low levels of overstays) are expected. As you might imagine this has, traditionally, included may developed nations of Western Europe as well as allies on the Pacific Rim like Japan and Australia – places where we reasonably anticipate that tourist visitors will return home because economic factors don’t drive them to want to stay in the US as much as they might from other, less well-developed, countries. In the aftermath of 9/11 the VWP program mutated somewhat. For a period of time (that has since lapsed) Congress eased the visa overstay rules (raising the acceptable rate from 3% to 10%) to permit countries to enter the VWP that cooperated with the US on security measures. These were countries, for example, that were willing to sign up for enhanced data exchange on criminals and terrorists. One such agreement was a 2003 provision for the exchange of terrorism screening information (known as HSPD-6). This required joining a consolidated watchlist system Another was the agreement on Preventing and Combating Serious Crime (PSCS), which resulted in sharing of biometric information to prevent serious criminal activity. A number of nations, mostly in Eastern Europe, eagerly signed on to these agreements and since that time the US has made these types of data exchanges a mandatory condition for all nations in the VWP, including the “old Europe” traditional VWP members. But some countries, like Poland and Romania, never managed to have visa overstay rates below even the increased threshold. They’ve never been admitted to VWP – a result that, on the merits, I think is a mistake. Now, however, the EU is sticking its finger in the pie. It has two reasons for doing so. The first (vice Snowden) is an inherent dislike of the information sharing agreements that the member States have signed with the US. According to EUActiv: “[T]he European Commission is reportedly not happy that individual countries sign data exchange agreements with the USA in the absence of a so-called EU-US Umbrella Agreement on data protection, which ensures EU citizens keep their rights when their data is processed in the US.” More to the point, the European Commission has decided to champion the cause of its member States who are not yet in VWP and threaten reciprocal visa action against the US if it does not immediately admit those countries to the VWP. The EU can, nominally, push this program because the European Union is a unified travel area – entry to one country means easy travel within the entire Union. And so the external visa policy is within the competence of the EU and, in theory, it could use that authority to punish the US on an EU-wide basis for continuing to treat the EU countries as individual nations and negotiate with them on a bilateral basis. And so, the EU’s threat is that if the US doesn’t change its VWP policy within 6 months it will begin requiring visas for US diplomats going to Europe. After that … it is not clear what other punishments the EU might mete out. The unfortunate truth, however, is that EU’s effort is mostly bluff and mostly bootless. To begin with, the VWP thresholds are a Congressional statutory mandate – and I don’t see Congress changing them any time soon. Second, nobody in Congress (or, for that matter, America generally) will be upset at the end of visa free travel for our diplomats – while they do a great job for us, they aren’t exactly a class that American’s sympathize with. Third, the demand for a change simply blinks reality – that the EU nations really are different in nature. While the EU may, for its own reasons, want to treat all of its members alike, it is chutzpah (or, if you prefer, “visa imperialism”) to demand that the US do so as well. Don’t get me wrong – I actually think that we should allow allies who’ve supported us in the last decade, like Poland, into the VWP. It makes no sense at all that a Polish soldier who fought alongside our troops in Afghanistan or Iraq can’t come to visit his buddy here in the US. But I also think that who gets to enter the United States is fundamentally a decision for the US to make – and not one that the EU should think it can dictate to us.
Paul Rosenzweig is the founder of Red Branch Consulting PLLC, a homeland security consulting company and a Senior Advisor to The Chertoff Group. Mr. Rosenzweig formerly served as Deputy Assistant Secretary for Policy in the Department of Homeland Security. He is a Professorial Lecturer in Law at George Washington University, a Senior Fellow in the Tech, Law & Security program at American University, and a Board Member of the Journal of National Security Law and Policy.
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