T5 B61 Condor Fdr- 9-6-02 Andruch Memo Re Condor- Stapled W Brief- Missing 1 Or More Pgs

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UNCLASSIFIED Action Memo

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TO:

The Secretary

FROM:

CA - Diane M. Andruch, Acting

SUBJECT:

"Visas Condor" Nonimmigrant Visa Cases

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Issue for Decision Whether to authorize VO to revise procedures for the Security Advisory Opinion (SAO) Process known as "Visas Condor" to reflect interagency consensus that the CIA no longer needs to clear routinely such cases. This change should make it possible to clear the majority of cases within approximately a week. Background: A new SAO process called "Visas Condor" commenced in January 2002 to help consular officers screen visa applications for counter-terrorism reasons. The SAO process is designed to give consular officers the benefit of the expertise of all appropriate federal agencies. The criteria used by consular officers to determine when a "Condor" clearance is appropriate is included at Tab A. We originally instructed consular officers to proceed with visa issuance if they had received no objection from the Department after 30 days. We overturned this instruction in mid-July because we realized that other agencies which had agreed to the 30-day clock, in particular the FBI and CIA, could not keep up with the work. Consular officers were therefore in the vulnerable position of issuing visas with potential high risk national security consequences without the benefit of the clearance process. This process is further explained at Tab B. We have experienced serious backlogs in visa processing due to our decision to wait for the FBI and CIA to respond to each request for an SAO. The FBI recently improved its response time. The CIA clearance process, which is significantly different, continued to be time consuming. On September 4, OHS chaired an interagency meeting to discuss procedural issues and obtained consensus on a modification that should significantly speed up the process. The CIA reported that it had not found any significant information in the "Condor" cases that it had checked. The Agency stated that it was confident that it had provided information pertaining to terrorists and;potential terrorists to the Department's TIPOFF database. The Department's representatives from CA and INR confirmed that the Agency had not provided significant, new information in checking "Condor" cases. We also expressed confidence that the Agency had provided information to TIPOFF. (Since

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9/11, the Agency has created or updated approximately 20,000 entries to TIPOFF.) The CIA suggested that it drop out of routine clearance of "Condor" visa cases. The FBI assured participants that its clearance process was now significantly automated and that it could provide a coordinated response with all appropriate Bureau units on "no objection" cases within approximately one week. The FBI also noted that 90% of its responses to date were "no objection". All participants representing OHS, OSTP, OPD, NSC, DOS, DOJ, FBI. and CIA agreed that the "Visas Condor" procedure should be revised. They determined that the CIA would not routinely clear such cases and that the Department should proceed on the basis of a reply from the FBI in a "no objection" case. With regard to cases for which there is a "hit" from the FBI, the Department has instructed consular officers to suspend such cases as an interim measure. The standard practice to resolve "hits" has been for the agency that filed an objection to provide VO the appropriate background information. VO and other Department experts review the information to determine whether the legal criteria of US immigration law would sustain a visa denial. We also consider foreign policy and operational issues that may be raised within the Department or by other agencies. To date, the FBI has not provided background information in an effort to resolve "hits". An additional complicating factor arose with a proposal to the Principals' Committee that a Presidential Proclamation be issued pursuant to section 212(f) of the Immigration and Nationality Act. The proclamation would permit the Attorney General to deny visa applications independently. A more detailed explanation of the legal consequences is included at Tab C. The Principals concurred with the proposal. The President is expected to sign the proclamation in mid-September. Recommendation That you authorize CA/VO on the basis of an FBI clearance only to inform consular officers that, as a procedural matter, they may jssue a visa to an individual subject to a "Visas Condor" SAO. Approve

Disapprove

Attachments: Tab A - "Visas Condor" criteria (State 15702).,.: Tab B - "Visas Condor" Procedures Tab C - (to be drafted by L/CA on resolving visa ineligibilities under the INA or the draft Presidential Proclamation) . = •' Tab D - List of Senior Participants at the September 4 Interagency Meeting

Doc: goodprocedures, 9/6/02 Drafted: CA: C Barry Cleared: INR: J Louis ok CA/EX/CSD: T Farris ok S/CT: M Optican ok L/CA: C Brown NEA/RA: P Sutphin EAP/PMBS: K Chern M D P

"Visas Condor" Procedures The "Visas Condor" codeword designates a security advisory opinion (SAO) request from a consular officer to a variety of Washington agencies to review a specific nonimmigrant visa application for counter-terrorism reasons. It is meant to enhance the namecheck performed by consular officers overseas for applicants considered otherwise eligible for visa issuance. Consular officers determine which cases to*send to Washington for review based on criteria developed through interagency deliberations. The consular officer prepares a telegram according to a set format that permits data to be parsed electronically by receiving agencies. The CIA has been taking "Condor" messages and doing an open text search to determine if there is a non-name retrievable file pertaining to the visa applicant. The name retrievable files are already included in the TIPOFF database that is searched by the standard consular namecheck. The FBI namecheck unit has been checking the visa applicant's name against its general indices. The case is also passed to the Foreign Terrorist Tracking Task Force (FTTTF) for. further review. FTTTF has been reviewing a variety of law enforcement and private sector databases. In part, the FBI is looking at relational data in an effort to "connect the dots." FTTTF is also using decision-modeling software to try to develop a threat assessment on individual visa applicants. "No record": The FBI automated its search of its general indices as of mid-June 2002. It is thus able to take the visa application information supplied electronically via the consular officer's cable. FTTTF also uses automation to some degree. The result is that the Bureau is now able to return to the Department cases that have "no record" within approximately a week. Although several units of the FBI may be involved in any particular case, the FBI has assured the Department that the namecheck unit coordinates the Bureau's response. This unit provides the "no record" response to VO which in turn alerts the consular officer. "Hits": When the FBI has informed VO that there is a "hit" against its data to some degree, VO instructs the consular officer formally to suspend the case and await further guidance. DOJ has agreed in principle that theFBI would provide the information behind the "hit" to VO as permitted by law so .that appropriate Department experts can determine whether the information would warrant visa denial under the Immigration and Nationality Act. VO subsequently provides appropriate guidance to the consular officer. To date, VO has not received background information pertaining to any "hits". VO has approximately 1,000 unresolved cases. There are still obstacles within the FBI to obtaining information from a variety of sources such as field offices. There may still be reluctance among certain FBI officers to share information generally considered to be law enforcement sensitive with a non-law enforcement agency. h The consensus of the September 4 interagency meeting determined that the FBI would notify the CIA of a "hit" so that the CIA could bring its expertise to a potential case of ! concern. The FBI would also notify VO. In turn, VO would instruct the consular officer