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A 1990 U.S. immigration law, sponsored by Sen. Ted Kennedy, D-Mass., instructs State Department employees that “mere” membership in a terrorist organization or advocacy of acts of terrorism should not exclude foreigners from receiving U.S. immigration visas.
Under the law as it is written, someone who belongs to a Middle Eastern terrorist group and has publicly stated a desire that the World Trade Center towers be blown up cannot, on those grounds alone, be denied permission to legally enter the United States as a prospective citizen.
In such a case, the ultimate decision of whether to grant an immigration visa is up to a State Department official’s subjective evaluation of a person’s knowledge and intent.
According to the official foreign affairs manual posted on the State Department website, the immigration law requires that a foreigner must be denied a visa if he or she has “indicated intention to cause death or serious bodily harm, and/or incited terrorist activity.”
The department defines “incitement” as “the making of utterances, written or oral, which are intended to arouse, urge, provoke, stir up, instigate, persuade, or move another person to commit an act of terrorism.”
But merely “advocating” terrorism, or belonging to a group that engages in terrorism, cannot be used as grounds for exclusion. “Only statements that directly further or abet the commission of a terrorist act may properly constitute a basis for denying a visa,” says the manual.
A spokesman for the State Department confirmed that if an individual generally advocates terrorism, but does not intend to further a terrorist attack, that individual is “not automatically ineligible for a visa.” Also, the spokesman confirmed, membership in a terrorist organization is not grounds for exclusion unless the individual in question “knew or should have known” that the group he belonged to was involved in terrorist activities.
“It has to do with intent,” says the spokesman. “If you look at the regulation, it says, ‘incitement is the making of utterances written or oral, which are intended to move another person to commit another act of terrorism.’ If I am a student in France, and I hate the United States and I’m sitting in my dorm room with five other people with me, and I say, ‘We ought to blow up the U.S. embassy in Paris.’ Is that actually intended? Do you think somebody would do it?”
The regulations actually contain these words: “[S]tatements approving a specific terrorist act, and asserting that such acts should be repeated, do not render an applicant ineligible.”
Most of the visa section of the foreign affairs manual is based on the Immigration and Naturalization Act of 1990, which lowered the national security standards for granting immigration visas.
Prior to that, under the 1952 Immigration Act, aliens could be excluded if there was reason to believe they would engage in activities against the public interest or the security of the United States. Aliens also could be excluded for advocating anarchism, the assault or murder of U.S. government officials, the unlawful damage of property, or for publishing or possessing material advocating such activities.
The term “mere membership” in a terrorist organization was not defined by Congress in the 1990 act, so the State Department had to devise its own policy. The manuals that include the State Department instructions are sent to every U.S. embassy and consulate in the world to assist consular officers in admitting aliens into the country. Certain consular offices in unfriendly states have special instructions on processing visas for foreign nationals. But every alien must go through a name check, and nationals from unfriendly regimes go through a more intensive check.
In 1990, a blind Egyptian sheik named Omar Abdel-Rahman, who was later convicted as a conspirator in the 1993 World Trade Center bombings, was admitted to the United States with a visa issued by the embassy in Sudan, even though his name appeared on the State Department’s list of undesirables. This watch list consists of 5.5 million people who may be inadmissible to the United States for various reasons, including criminal histories and terrorist links, as well as lack of funds or infectious diseases.
Kennedy and Sen. Daniel Patrick Moynihan, D-N.Y., pushed the new legislation through the Senate during the 1990 Persian Gulf crisis. The legislation was also promoted by some Irish-American groups.
On Oct. 26 of that year, Kennedy explained on the Senate floor: “The exclusion categories are reformed and updated to end outdated ideological, medical and communicable disease provisions.”
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