State Department Documents about Appropriateness of Issue of Visa to 'Blind Sheikh'

8/14/2019 State Department Documents about Appropriateness of Issue of Visa to 'Blind Sheikh'

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U n i t e d Sta t es De p a r t m e n l o f Sta l eAssistant Secrelitn- u f Sltitr A [ \f or Consular Affairs I U 'Washington, D.C.20520July 16, 1993

MEMORANDUM

TO:FROM:SUBJECT:REF:

DIG - Sherman M. FunkCA - Mary A. RIssuance of Nonimmigrant Visas to Sheik Abdel RahmanYour Memorandum of July 7, 1993

It is not possible to answer definitively whether or notvisas (particularly the one issued in 1990} should have beenissued or denied based on the evidence and information availableat the time of application, because we do not know with certaintytoday the extent of the evidence or information available atthose times. What can be said is that it is still not clearsufficient evidence or information was available then to ensurethat the visas would have been denied under the existent law hadthe proper procedures been followed.

In 1990,given the effect of section 901 of P.L. 100-204on Section 212 (a) of the Immmigration and Nationality Act (IIIA) ,mere advocacy of or incitement to acts of terrorism would nothave been sufficient for ineligibility under Section 212 (a)(28). Then (as now) evidence of actual involvement in terroristactivity beyond mere words would have been required. Taking intoaccount that the Sheik had been acquitted by an Egyptian court onthe charges brought against him in the Sadat assassination, thereis no evidence we have seen that clearly establishes that hisactivities in support of terrorism extended beyond mere words.


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9/11 Closed by Statutef That determination, however, wou1d

have had to be made at the Undersecretary level, based onarguments that might have been made regarding the effect of hisentry on the public interest. Not knowing how those argumentsmight have been framed, it is not possible to say whether, basedon what was known about the Sheik then, they would have beenpersuasive. However, in view of the climate of criticism of thethen Administration regarding refusal of visas on "ideologicalgrounds", it cannot be taken for granted that the decision wouldhave been to deny him the visa.

I enclose a paper prepared in the Visa Office whichexamines the question in more detail.

Attachment:As stated.


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United States Department of State \ Inspe

July 7, 1993 :'

MEMORANDUM

TO: CA - Ms. Mary A. RyanFROM: OIG - Sherman M.SUBJECT: Issuance of Nonimmigrant Visas to Sheik Abdel Rahman

During our work on the subject of visas issued to SheikRahman, our team concluded that sufficient evidence was availableat the time to deny each of his applications, if the informationhad been properly entered into the lookout system and/oraccessed. This conclusion was generally concurred in bv kevofficials at the time the visas were issued. T

Shortly before the June 30 hearing we were provided a copyof Mr. Scully's June 22, 1993, memorandum which stated hisopinion that a better-than-average chance existed that theDepartment's Legal Adviser would have found that a refusal of theSheik's visa in 1990 would have violated immigration law.

This issue may likely attract considerable attention duringthe upcoming open hearing on July 22. I very much need tounderstand CA's official position on whether the visas(particularly the 1990 one) should have been issued or denied,based on the evidence and information available at the time ofthe applications. My team will be happy to discuss this matterand share all information we collected from officials (past andpresent) and post files.I would appreciate your written response by July 16, 1993,so that I can properly examine it in advance of the next hearing.Your staff can contact John Payne at 7-7096 or Linda Topping frommy Office of Counsel at 7-5059 if you have questions.


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uUnited States Department of StaleWashington , D.C. 20520rjUU51993

To : CA - M a r y A. R y a nThrough: CA/VO - John H.From : CA/VO/L - Cornelius D. S>c\\M IIISubj : Issuance of Nonimmigrant Visas to Sheikh Abdel Rah manRef : O I G m e m o r a n d u m of July 7, 1993

For possible use in responding to the request set forth inthe memorandum under refer ence, I off er the following comments.Before going into a technical analysis, I believe I shouldexplain the state of. affairs as I understand it. Afte r receipt ofthe memorandum under refer ence, I discussed this matte r with Mr.Brennan and Ms. Brown of OIG and reviewed documents dating between1982 and November 199.0 assembled by the OIG team during itsinvestigation to date. As Mr. Bren nan explained the matter to nue,

atute

Being unable to review the actual file, the investigatorsthereafter interviewed a number of officers who had been stationedin Cairo during the pertinent periods and obtained theirrecollections of the nature and substance of the infor mation whichwas contained in the file during its existence, j""

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J I was unable to review the records of thoseinterviews since, according to Mr . Brennan, they have not as yetbeen transcribed.As a result, insofar as the Sheikh'son terrorist grounds in 1990 is concerned,definitive judgment. I

possibleI cannot

ineligibilitymake a9''11 Clo sed by Statute


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J A c c o r d i n g l y , although it would h ave been legallypermissible to grant the sheikh a waiver of ineligibility topermit his temporary entry not wit hs ta nding the ineligibil ity, thedecision wh et he r or not to do so would h ave been entirelydiscretionary.Obviously , it is not possible to know wit h certa inty how th atdiscretion would h ave been exercis ed, but it was long-standingDepartment policy tha t waiv ers would not routinely be obtained foraliens ineligib le for past terrorist ac tivity. Thus, someonewould have had to ma ke a convincing case for the propriety ofobtaining a waiver for the S h eik h in order for the necessaryrecommendation to be m a d e to the I m migra tion and N a t u r a l i z a t i o nService.If, on the other hand, the Cairo file had reflected a historyof extremist statements, adv ocat ing the overth row of governments

which failed to function according to Islamic law and theoverthrow or assassination of the rulers of such government , butnot a history of te rror ist acts or actions in fu rt he ra nce ofterrorism, t h e situation would have been qu ite diffe rent . It ishere t ha t section 901 comes int o the equa tion.

Section 901 mu st be seen in its context . Beginning in abou t1983 va riou s gro u ps opposed 'to Reagan Administration policiesvis-a-vis Central America and Cuba and with respect to nucleardisarmament began to charge that the Administration was deprivingAmerican citizens of their First Amendment righ t to hear the viewsof aliens who sought to enter to participa te in public debates onthese issues and whose views were antith etical to those of theAdministration. These charges were pursued in various ways in


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the media, in the courts and through the le gi slat ive process. Asthe 1980s wore on, the charges became ever more expansive andpositions on the matter became more polarized. Ult ima te ly,opponents of the Administ ration came to characterize sections212(a)(27), (28), and (29) as the "ideological exclusions" and toinsist upon t he ir outrig ht repeal.

Now, outri gh t repeal of all th ree sections would have hadcatastrophic consequences. The problem the Administ ration facedat the time, however, was that attempts to explain that fact andto describe what the consequences would be were dismissed aspolitical subterfuges designed to thwart reform of an unjustsystem, making it possible for the Administration to continue itsnefarious practices. The atm osphe re which all of this producedwithin the Department is difficult to imagine at this remove, butthere was substantial apprehe nsion about any politically sensitivevisa refusal. Secretary Shultz was pe rsonally ve ry concerned, ashe made clear to th en Assistant Secretary Joan Clark.

The legislative process began in 1984 or 1985 with theintroduction by Cong. Frank (D-Mass) of a bill to revise section212(a) of the Act. Hearings were held on that bill, but it wasnot enacted in that Congress, nor in the next. Mr. Frank againintroduced it in the 100th Congress, but again it appearedunlikely to be enacted. It was at th is point, t hat otherlike-minded members proposed and had enacted section 901.Initially, section 901 was limited to a fiftee n mont h periodbeginning on January 1, 1988. The report of the conferees on P.L.

100-204 makes it clear that the time limit was in anticipation ofthe enactment of permanent revisions to sections 212(a)(27), (28),and (29) of the Act. In the event, the completion of th atrevision process was delayed until late 1990. As a result,section 901 was, first, extende d for a two-year period and,later,made permanent. In the process, it was also modified to applyonly to non immi gra nt aliens. (Initially, it had applied to allaliens, i mmigran t or nonimmigrant.) Section 901 was repeale d bythe Immigration Act of 1990, as of June 1, 1991, the effectivedate of the permanent revisions of section 212 (a).

Upon the enactment of section 901, the Administration tookthe position th at section 901 did not repeal or suspend theapplication of any provision of the Act, specifically sections212(a)(27), (28), or (29). It conceded that an ali en could not bedenied admission under those sections for reasons specified insection 901, but asserted that aliens could be denie d un de r th osesections for reasons oth er than the pro hi bit ed ones.


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With specific respect to sections 212(a)(28)(C) and (F), theAdministration took the position tha t it continu ed to be legallypermissible to ma ke find ings of ineligibility under those sectionsin respect of nonimmigrants, but that, where the finding ofineligibility was based upon mer e membe rship or affiliation orupon sta tem ents whic h would bring the alien withi n the purview ofeither section, section 901 man da ted that a wai ver ofineligibility be recommended and granted to permit temporary entrynotwithstanding the ineligibility.

Almost immediately ther eaft er, yet another controversy aroseover the Administration's position. Proponents of section 901asserted that its nac tme nt suspended the opera tion of thosesection* elim ina tin g the need for wai vers of ineli gibi lity, andaccused the Administration of bad faith in its failure to actaccordingly. This controversy became pa rti cula rly acute after thefinal amen dme nt of section 901 which ma de it per ma nen t.

In this connection, I am enclosing for your i nform ati on acopy of a May 23, 1990 letter to the Secretary from Messrs Frank,Morrison, Ed ward s, Schumer, Herman and Kastenm eier. All six werethen mem bers of the House Judici ary Committee; four of themmembers of the Subcommittee on Immigration. I am also enclosing adocument prepared for the use of Cong. Frank by the CongressionalResearch Service on this subject. I hasten to say that theAdministration did not agree with the inte rpret at ion espoused ineither document, but I think they are of interest in terms of the

- climate which existed at the time of the Sheikh's May 1990 visaapplication.

In connection with section 901 and its impact on thissubject, Mr. Brennan expressed the view to me that Congress didnot intend to cover people like the Shei kh, but rath er intendedsection 901 to apply only to Communist Party members. While thatcould, of course, be the case, the documents available to me d onot support that opinion. The conferees stated 'For example, suchexclusions, restrictions, or deportations would "hot be appropriateif based on an alien's criticism of the United States or U.S.policies; an alien's at tem pt to influence lawfully the outcome oflegislation before the Congress; or an alien's mere mem bersh ip ina Comm unist, anarchist or other organ izat ion proscribed undercurrent law."

In addition, the Congress expressly de nie d the benefits ofsection 901 to aliens who were me mbe rs, officers, officials,


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representatives or spokesmen of the PLO. The PLO had beendesignated as a terrori st org ani zati on in 1974 and the Congr essclearly u nde rst ood that section 901 would apply.to its members andthose who made statements in its support unless they made specialprovisi on w ith respect ther eto. I believe that, the fact that theCongress made special pr ovi sion for a named terrorist organizationand its members strongly suggests that it kneW that membershi p interrorist org aniz ations generally vould be wi thi n the purvi ew ofsection 901.

Finally, the successor p r o v i s i o n to section 212(a ) (28)(F) section 212(a)(3)(B) -- is very carefully wr itten to confine,itself to terr or is t acti vi ty and actions i n furtherance thereof.

am enclosing a copy of that document for your information aswell.| || |it was hared on an informal basis with a, member ofCong. Frank's staff and of the staff of the House JudiciarySubcommittee on Im mi gr ation . Both expressed agreement with itsterms. I do not know wh ether either Mr. Frank or actual m ember sof the Subc omm ittee saw the dr af t.I turn back now to the Sheikh's May 1990 visa application,inlight of the foregoing and the possibility that th e Cairo filewould hav e shown n othing mor e than extremist, terrorist .statements, but not act iv it y./ ~ ~ \e attorney at Justic

who handled all the litigation on foreign policy refusalsexpressed the view then , and con tin ues to hold it, that allowingth e pr ohi bi tio n against denials because of statements, beliefs, or


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year. Cairo also reported that it routinely issued nonimmigrantvisas to Musl im clerics seek ing to preach at mosques in the U.S.once it was satisfied that all expenses were being covered by theU.S. interested party.Thus, by the time the Sheikh applied in May 1990 he hadtravelled temporarily to the United States at least once andperhaps twice and had not violated, so far as we know, the termsand conditions of his admission. I

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While we now know that the Sheikh applied for adjustment ofstatus several months after arr iv i n g her^ there is nothing.toindicate that the consular of ficer at Kha rto um could have hadreason to suspect that he would do so. In fact, we have no way ofknowing at what po in t the Sh eik h ma de the decis ion to seekpermanen t resid ence. He could hav e had that in mi nd in May 1990or even before then. He could have decided to do so after arrivalhere, for reasons which arose after entry. We know nothing ofthat aspect of the mat ter and wi ll likel y never learn anyth in gmeaningful about it. Thus, the most that can possibly be said isthe broad generalization that a consular officer can doubt thenonimmigrant bona fides of any applicant, depending upon what issaid by the applicant du rin g the int erv ie w and his demeanor.encl: (1) Letter of May 20, 1990(2) CRS Memorandum of May 9, 1990

(3) 91 State 178327(4) L/CA FAX of October 9, 1991(5) Memorandum of October 18, 1991

Drafted: CA/VO/L:CDScullyIII:cds Clearance:7/15/93 WD#3501D X31184

State Department Documents about Appropriateness of Issue of Visa to 'Blind Sheikh'

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Transcript of State Department Documents about Appropriateness of Issue of Visa to 'Blind Sheikh'