Posted by on July 17, 2013 in Blog

By Isaac Levey
Legal Fellow
A number of posts in this space in recent days have focused on our criticisms of proposals in Congress to grant visa waivers to Israel. Currently, the relevant bills under consideration are the “United States-Israel Strategic Partnership Act of 2013,” proposed by Sen. Barbara Boxer (D-Cal.), and Rep. Brad Sherman (D-Cal.)’s appropriately named “Visa Waiver for Israel Act.” As I will explain, the problem with these proposals is not that they bestow favorable treatment on Israel. It is that they grant Israel unique privileges given to no one else, and they show a troubling disregard for the rights of Americans abroad.

The visa waiver program is governed by Section 217 of the Immigration and Nationality Act. The program authorizes the Attorney General and Secretary of State to allow visitors from certain countries to visit the United States without visas. Countries must meet certain requirements to be entitled to a visa waiver, one of which is that less than three percent of the visa applicants from the country during the past year were refused entry into the U.S. To date, Israel has not qualified for waiver status because at least as of last year, about 5.4% of its visa requests were refused (the lowest Israel’s refusal rate has ever been). In other words, since more than 3% of Israelis’ requests for visas to the United States are denied every year, Israel is not entitled to a visa waiver.

Boxer and Sherman’s bills would exempt Israel from the general requirement that waiver-eligible countries have a refusal rate below 3%. Senator Boxer’s bill adds to Section 217(c)(2), which is otherwise filled with general requirements for waiver status that don’t refer to any specific country, a specific subsection entitled “ISRAEL” which declares that Israel is not subject to the 3% refusal requirement. Instead of the 3% requirement, Israel would be admitted into the waiver program when the Secretary of Homeland Security certified the Israeli government had made “every reasonable effort, without jeopardizing [Israel’s security], to ensure that reciprocal travel privileges are extended to all United States citizens.” This is a stark departure from the general principle, which we apply uniformly to all other nations, of reciprocity in travel privileges: the notion that we will make it easy for nationals of other countries to visit the United States if those other countries extend that same privilege to us and properly respect the rights of Americans there. Instead of requiring Israel to actually respect those rights, we would declare ourselves content with a reasonable effort.

There is no mystery as to why this requirement of reciprocity would have to be lessened for Israel: regrettably, Israel has consistently failed to respect the rights of American citizens. We have collected stories from Americans detailing systematic and pervasive discrimination based on travelers’ actual or perceived Arab or Muslim backgrounds, and against those holding political views inconsistent with those of Israel’s government. Common practices, according to reports, include incommunicado detention at screening facilities; invasive or humiliating searches or interrogations; and requiring Americans to turn over electronic information, such as e-mail passwords, as a requirement for admission into Israel. Some travelers have also said their phones were hacked. In June of this year, Rep. Keith Ellison (D-Minn.) and fifteen other Members of Congress asked Michael Oren, Israel’s outgoing Ambassador to the United States, about these practices. Ambassador Oren did not deny that these practices exist; nor did he claim they are reserved for travelers actually suspected of wrongdoing rather than standard operating procedure. Boxer and Sherman’s bills would implicitly sanction these practices, implying they are “reasonable efforts” to extend reciprocal travel privileges to American citizens. It is obvious that they are not: no one claims Israeli citizens visiting the United States are treated this way.

Let us be clear: these proposals do not simply extend to Israel the same visa waiver that has been awarded to other countries, as Congressman Sherman has claimed. Nor do they just offer favorable treatment to close allies, for while no one disputes that Israel is an ally and partner of the United States, these proposals place it above our closest and dearest friends, awarding it far better treatment than, say, Canada, Germany, or the United Kingdom. By exempting it from the waiver requirement, the bills place Israel in an extraordinary class of one, announcing quite explicitly in our laws that this nation, and no other, can play by its own rules. And by lessening the reciprocity requirement, we would send an unmistakable message to American citizens traveling to Israel: your rights are less important to your Government than the rights of any other Americans traveling abroad.

Israel’s most zealous and single-minded supporters often say that all they want is for the Jewish State to be treated like any other nation: that its right to exist should be fully acknowledged, and that when it acts to defend itself it should be held to the same standard as anyone else. If that is truly what they believe, they should join us in standing against these proposals, which we oppose because they fly in the face of those unassailable principles. The honor of national sovereignty, and an alliance with the United States, carries with it a concomitant responsibility to treat American citizens with the dignity and respect they deserve. It is no slight to the state of Israel to say that we should not grant it an extraordinary preference, a favor we extend to no other nation on the face of the Earth.

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