San Bernardino killings raise questions about proposal for visa-waiver program | Miami Herald

The news that Tashfeen Malik, the 27-year-old woman suspected in the San Bernardino shootings, was granted a fiancée visa and permanent U.S. residency raises new questions about the effectiveness of the screening process the U.S. relies on to prevent dangerous individuals from entering the country.

Malik would have gone through an exhaustive vetting process to win her residency, including at least two personal interviews, a terrorism background check and a criminal background check. None of that vetting turned up any sign of radicalism.

That fact suggests that a proposal by Sen. Dianne Feinstein, D-Calif., to tighten the so-called visa waiver program to prevent its use by terrorists to enter the United States is unlikely to prove fail-safe. It also might raise doubts about Obama administration assertions that its process for vetting Syrian refugees is tough enough to prevent would-be terrorists from entering the country.

Feinstein’s bill targets a program that lets citizens of 38 allied countries travel to the U.S. without going through the visa process, which involves an interview at a U.S. consulate and can take weeks. Under her proposal, visitors from those countries would be required to provide photos and fingerprints before traveling to the United States, and any traveler who had visited Syria or Iraq in the previous five years would have to go through the traditional visa process.

Travel industry leaders argue that Feinstein’s proposal would damage American tourism without offering a security benefit.

Extensive vetting made no difference in the case of Malik, who is believed to have joined her husband in killing 14 people at a holiday party in San Bernardino on Wednesday. Malik, born in Pakistan, arrived in the U.S. last year on a visa reserved for fiancés of U.S. citizens.

To obtain such a visa, a couple must show they plan to marry and then the Department of Homeland Security runs background checks on them, according to Abed Ayoub, an immigration lawyer who’s the legal and policy director for the American Arab Anti-Discrimination Committee.

“The petition, when approved, is sent to the relevant embassy, which then calls the beneficiary, in this case Malik, in for an interview and another background check, this time by the State Department,” Ayoub said.

After coming to the U.S. and getting married, Malik applied for and was granted a conditional green card allowing residency. Getting such a card takes six months to two years and requires the candidate to provide detailed biographical information.

“There are at least three to four rounds of background checks done by the DHS and State Department collectively and the candidates matched up against watch lists,” Ayoub said. “It is definitely a very comprehensive process.”

Feinstein said the failure of those checks to stop Malik didn’t make her rethink her proposal to require the fingerprinting of visa-waiver program travelers before they come to the U.S.

“No one action will prevent all attacks. The goal is to prevent as many as possible. Making the visa waiver program more secure is a step toward that goal,” said Tom Mentzer, Feinstein’s communications director. “Not making necessary reforms because it’s not a silver bullet makes no sense.”

Feinstein’s proposal is controversial, with the U.S. Travel Association suggesting it would dismantle the visa waiver program “and set back America’s economy and our efforts to protect the homeland.”

Marc Frey, the former director of the visa waiver program at the Department of Homeland Security, said travelers in the program were already screened before flying. They also submit their fingerprints and a photograph once they arrive at U.S. airports – a process that doesn’t tend to reveal information not already found in the earlier screening, according to Frey.

Frey said the collection of fingerprints and photographs before the traveler reaches the U.S. would be hugely difficult to set up and hard on travelers, who might have to go to a consulate.

“It would be enormously complicated and enormously expensive, at a great cost to the traveling public and providing very little security,” argued Frey, who is now senior director in the Washington law office of Steptoe & Johnson.

Why Malik’s potential role in Wednesday’s mayhem escaped detection is uncertain. On Friday, the FBI declared the case “a federal terrorism investigation” as investigators became aware that Malik had pledged allegiance to Islamic State leader Abu Bakr al Baghdadi in a Facebook posting, apparently in the moments before she and her husband, Syed Rizwan Farook, opened fire.

Still, FBI Director James Comey said no evidence had yet surfaced that Malik or Farook had been directed by the group, and the exact motivation for the rampage, which also left 21 people wounded, remains uncertain. Two smashed cellphones recovered by investigators are being combed for clues, Comey said.

“We’re going through a very large volume of electronic evidence,” Comey said, sitting beside Attorney General Loretta Lynch at a news briefing at FBI headquarters in Washington. “This is electronic evidence that these killers tried to destroy and tried to conceal from us that we now have and are exploiting to try to understand them.”

Comey said the bureau had “hundreds of people running all over the world on this” investigation, though he declined to provide details.

Internet forums frequented by terrorist sympathizers have remained largely silent on the San Bernardino attack. That suggested, experts said, that Malik and Farook were acting on their own.

In some previous instances – including the Nov. 13 attacks in Paris and the January killings of a dozen people at the offices of the French satirical newspaper Charlie Hebdo – the Islamic State and the Yemen-based al Qaida in the Arabian Peninsula were quick to claim a role. Other attacks that were thought to be the work of individuals acting alone drew little notice.

J.M. Berger, a non-resident fellow at the Brookings Institution research center and an expert on the Islamic State’s social media presence, said the lack of discussion among terrorist sympathizers might simply reflect confusion among jihadists about the killers’ motivations.

“The specifics of this case are so strange, I think it’s hard for anybody to wrap their heads around it, even the jihadis,” he said.

Greg Gordon in Washington and special correspondent Mitchell Prothero in Irbil, Iraq, contributed to this report.