by Paul R. Pillar
The Obama administration has expressed its intention to make a needed correction, albeit only a partial one, to a badly flawed and misdirected piece of legislation that was an emotional response to fears about terrorism and that will do little or nothing to achieve its stated objective. The legislation, which was a rider on an omnibus spending bill that the president signed into law last Friday, selectively reverses part of the visa waiver program under which citizens of some countries do not need to go through the time-consuming process of obtaining a visa before visiting the United States for tourism or business. Iran is not one of those countries, but its economic interests will be indirectly affected. Secretary of State Kerry has told Iran in a letter to the Iranian foreign minister that the administration will use its waiver authority and other lawful tools to prevent the new visa rules from contradicting the sanctions-relief provisions of the recent agreement to restrict Iran’s nuclear program.
About the only good thing about the new legislation is that it implicitly recognizes that the earlier hysteria over refugees and the fear of terrorists in their midst was misplaced. None of the known foreign terrorists who have entered the United States came here as refugees. But then one has to note immediately that neither were any of those terrorists kept out by having to apply for a visa. This is true of, among others, the woman involved in the San Bernardino shootings, the incident that probably has contributed more than any other to the current emotions and fears in the United States about terrorism.
The visa law is another of the measures that get implemented from time to time as a pendulum of public emotion swings back and forth according to how long it has been since the last scary terrorist incident. If such an incident is recent, then politicians rush to enact measures in the name of security even if they compromise other values such as civil liberties or equal treatment under the law. As more time goes by without an incident, values such as privacy and free movement get reasserted. The result is the same sort of pendulum-swinging inconsistency that we also see with the political treatment of surveillance and collection of communication data.
Even if visa applications had shown themselves to be a much better means to screen out terrorists than they in fact have been, the new legislation is aiming in the wrong direction. The measure removes visa-free travel to the United States for people who have visited, or have citizenship in (which might be in addition to U.S. citizenship) Iran, Iraq, Sudan, or Syria. To see how misdirected this list is, we can remind ourselves of where the 9/11 hijackers came from. Fifteen of them were from Saudi Arabia, two from the United Arab Emirates, and one each from Egypt and Lebanon. Both of the San Bernardino shooters had family origins in Pakistan, and the woman—the one who was not a U.S. citizen—evidently had spent radicalizing time in Saudi Arabia. Thomas Erdbrink, in an article on the measure in the New York Times, appropriately remarks, “Precisely why Iran was included on the list is unclear, since it is a foe of the Islamic State, the militant extremist group accused of organizing or fomenting the attacks” that underlie the current fears.
Perhaps one could try to construct a rationale based on the official list of state sponsors of terrorism, with the addition of Iraq because that is a home of the so-called Islamic State or ISIS. But state sponsorship of terrorism is not the problem involved here. The pattern of past terrorists coming from Saudi Arabia, Pakistan, or the UAE—none of which are on the list—has much less to do with any direct sponsorship of terrorism by governments than with radicalizing influences found within the societies in those countries. Besides, the U.S. list of state sponsors has long been a politically corrupted statement in which countries get moved on or off the list for reasons that have little or nothing to do with terrorism. Cuba, for example, was removed from the list only this year, as an accompaniment to the restoration of diplomatic relations with the United States, even though it had been many years since Cuba had done anything that could plausibly be described as sponsorship of terrorism. Iran no longer engages in the sort of extraterritorial activities that once legitimately earned it a spot on the list; the rationale for keeping it there has to do mainly with Iran’s relations with certain groups that are on what Washington considers to be the wrong side of certain regional conflicts and that certainly have no monopoly on the use of terrorism related to those conflicts.
Given how reciprocity works in the waiving of visa requirements, the impact of the new law will be felt well beyond the particular groups directly named in the legislation. Because European citizens who have traveled to one of the named countries, or who also hold citizenship with one of those countries, will lose their visa-free privilege to travel to the United States, European governments can be expected to withdraw the corresponding privilege from U.S. citizens who fall in the same categories. That means U.S. citizens with family ties to Iran, Iraq, Sudan, or Syria who may have traveled there to visit with relatives will face visa requirements that their fellow citizens do not. And that in effect means different treatment of different U.S. citizens because of their ethnic backgrounds.
Then there is the issue of possibly violating the nuclear agreement with Iran. It is quite likely that—unless the U.S. administration can use its authorities to implement the law in a way that will negate this effect—many European and Asian business people will eschew travel to Iran, notwithstanding the attractiveness of potential business deals there, if such travel would mean losing their current ability to travel visa-free to the United States and thereby impairing their ability to reach even bigger deals here. This effect would occur even without the reciprocity factor kicking in. The economic implications for Iran, for which the conclusion of deals with foreign business interests are an important part of its hopes for economic recovery, are serious.
The specific provision in the Joint Comprehensive Plan of Action—i.e. the Iran nuclear agreement—in question is the obligation of the United States and the Europeans to “refrain from any policy specifically intended to directly and adversely affect the normalization of trade and economic relations with Iran.” A rationale, of course, for contending that the new law does not violate this obligation is that the intention of the new law is protection from terrorism, not the infliction of damage on trade and economic relations. But then that leads to the issue of why Iran was placed on the very short list of countries in the law even though there is no valid reason to believe there would be any association between prior travel to Iran and a greater chance of being a terrorist, and especially a greater chance than those who have traveled to many other countries not on the list. The answer to the question Erdbrink raises is that Iran-bashing is still politically very much in vogue in Washington, just as it was in the years leading up to negotiation of the JCPOA and especially while the agreement was being negotiated. The stab at Iran in the visa legislation is another step in efforts to keep Iran isolated and economically crippled. The Iranians thus have a valid point about violation of the JCPOA.
This in turn raises the broader issue of the future of the nuclear agreement and how its enemies might yet destroy it. So far Iran has accumulated a strong record of compliance, not just with the JCPOA but with the preliminary agreement that preceded it, which means that the compliance record is already more than two years long. Iran is moving with dispatch to fulfill its remaining obligations under the JCPOA in terms of dismantling infrastructure, reducing stockpiles, and so forth. The Iranian supreme leader has repeatedly given every indication that while he shares with Iran’s hardliners a concern about what a broader relationship with the West, with all the infusion of culture and ideas this would entail, will mean for the Islamic Republic, he will not let the hardliners kill the nuclear agreement itself.
One cannot speak with as much assurance about hardliners on our own side, which is where violations of the agreement are more likely to come from. The political forces in Washington, heavily influenced by another foreign government, that devoted enormous effort attempting to kill the agreement while its approval in Congress was still in the balance have not given up. They are still looking for ways to kill the agreement even after adoption. One of the tactics for trying to do so is to play up Iranian activity in other areas. Tests of ballistic missiles has been one such area, even though such tests have nothing to do with obligations under the nuclear agreement, Iran lives in a neighborhood where—especially given its experience being on the receiving end of missile salvos during the Iran-Iraq war—Iranian ballistic missiles will be an unavoidable reality, and as long as the nuclear agreement remains in force there will never be any nuclear warhead on any Iranian missile.
At least as large a tactic for opponents of the agreement will be to push for measures by the United States—especially economic sanctions or steps that, like the visa matter, also have damaging economic effects—that go so far in violating at least the spirit if not the letter of the agreement that at some point the Iranians will be so fed up that they will declare the accord null and void. The Obama administration, if it does whatever it lawfully can do to prevent opponents from getting to that point, will be acting on behalf of nuclear nonproliferation and on behalf of U.S. security interests.
This article was first published by the National Interest and was reprinted here with permission. Copyright The National Interest.