Copland and Brenner

Table of Contents

1. Selling Terrorism Futures? Don’t Bet On It
2. Department Of State Updates
3. Religious Worker Sunset Warrants Expedited Handling

1. Selling Terrorism Futures? Don’t Bet On It

   During the last week of July, the Pentagon announced – and almost immediately shut down – its plan to allow online futures trading involving events in the Middle East. According to its own web site on July 29, the Policy Analysis Market (“PAM”) was to allow any individual the opportunity to bet on “the economic, civil, and military futures of Egypt, Jordan, Iran, Iraq, Israel, Saudi Arabia, Syria and Turkey and the impact of U.S. involvement with each.” The premise of PAM was that “[a]nalysts often use prices from various markets as indicators of potential events.” The fundamentals that apply to other market predictors were thought to be an excellent means of developing “futures contracts” for potential events in the Middle East. PAM was to allow trader registration among the public beginning August 1, with active trading to begin on October 1, 2003.

    

   All that, however, was before Democratic Senators Byron L. Dorgan (ND) and Ron Wyden (OR) broke news of the plan on July 28. Following a firestorm of criticism, those looking online for PAM’s web site two days later would receive the following message from Microsoft Internet Explorer: “The page you are looking for might have been removed, had its name changed, or is temporarily unavailable.” More succinctly stated, all bets are off.

    

   Background

    

   PAM was the brainchild of the Defense Advanced Research Projects Agency, known as DARPA. On its web site (www.darpa.mil/), DARPA bills itself as “the central research and development organization for the Department of Defense.” It “manages and directs selected basic and applied research and development projects for DoD, and pursues research and technology where risk and payoff are both very high and where success may provide dramatic advances for traditional military roles and missions.” High risk and payoff, indeed.

    

   PAM was established within a DARPA program called the Information Awareness Office (“IAO”), the mission of which is to “imagine, develop, apply, integrate, demonstrate, and transition information technologies, components, and prototype closed-loop information systems that will counter asymmetric threats by achieving total information awareness that is useful for preemption, national security warning, and national security decision making.” IAO’s vision of “example technologies” includes “event prediction and capability development model building engines.”

    

   The example futures and derivative contracts viewable on PAM’s web site on July 29 involved two potential issues: “Overthrow of Jordanian Monarchy” and “Iraqi Regime persists after One Month of Hostilities.” According to the example, how the two issues might be interrelated involves four speculative futures contracts. An example PAM trader who is a “Jordanian domestic affairs specialist” could leverage her knowledge of the effect of the monarchy’s potential collapse against her “relative ignorance” of the cause being the persistence of the Iraqi regime. If the cause did not occur, “then she does not lose any money, but if the cause does occur and the effect as well, then she can make a handsome profit.”

    

   The Firestorm

    

   The PAM site stated that “U.S. government agencies will not be allowed to participate in PAM and DARPA will not have access to the identities or funds of PAM traders.” That claim notwithstanding, one can reasonably question its lack of internal logic. Since PAM was a DARPA initiative, and DARPA is part of the DoD, it is unclear how participants would have (or could have) remained anonymous. Moreover, if a catastrophic terrorist event transpired, and any individual(s) made a “handsome profit” from it, there would surely be a widespread hue and cry for information regarding those who profited.

    

   The obvious problem with PAM’s particular market niche is that the investors themselves could affect their own profiteering: a terrorist could “predict” a particular event – say, an assassination or terrorist attack - and reap a fortune from the accuracy of his or her “prediction.” This, according to some reports (including The New York Times on July 29), is what drove the intense barrage of criticism directed at PAM, DARPA and the DoD over the past few days. Therefore, according to the Times, “whatever the logic of the Pentagon’s position it had no chance of surviving politically.” For all its high-tech analytical tools, DARPA failed to predict the demise of PAM.

    

   Other DARPA Initiatives

    

   DARPA’s fingerprints, so to speak, are all over other technologies intended to enhance U.S. security interests, including those that are immigration-related. For example, one of IAO’s technologies is “biometric signatures of humans.” In fact, on May 30, 2003 DARPA’s web site announced that the “Bureau of Customs and Border Protection [“BCBP”] plans to install a new video surveillance system at ports of entry along the U.S./Canadian border.” The system “detects, identifies and analyzes objects automatically and in real-time” and was developed under DARPA’s Video Surveillance and Monitoring program.

    

   DARPA’s Human Identification at a Distance program will “develop automated biometric identification technologies to detect, recognize and identify humans at great distances.” The results of testing of face recognition technologies in HumanID, as it is known, are expected to be used in “the design of the United States Border Entry/Exit System.” Additional plans for fiscal year 2004, which will soon be upon us, include fusing “face and gait recognition into a 24/7 human identification system.”

    

   Still another of DARPA’s ongoing projects is the Terrorism Information Awareness (“TIA”) System. TIA was created in fiscal year 2003 as Total Information Awareness. TIA has been the subject of considerable criticism by elected representatives over concerns that the program would violate laws protecting the privacy and civil rights of U.S. citizens. Various reports suggest that TIA would have “data mining” capacity to track any person’s activities – from computer usage to banking records, telephone calls to credit card purchases, medical records to travel documents, court records and beyond. There is no reason to presume that immigration records would be exempt from such efforts.

    

   TIA acknowledges that its former name “created in some minds the impression that [it] was a system to be used for developing dossiers on U.S. citizens” and that “Total” transmogrified to “Terrorism” to make “absolutely clear” its objective of “detecting and defeating foreign terrorist threats before an attack.” Report to Congress regarding the Terrorism Information Awareness Program, Executive Summary, May 20, 2003.

    

   In spite of the name change, many in Congress are not convinced that TIA’s methods support its objective. Continued funding for TIA is the subject of ongoing debate in Congress. What the future holds is anyone’s bet.

2. Department Of State Updates

   On July 7, 2003, the Department of State published an interim rule that will “significantly reduce[] the number and kind of situations in which the usual requirement that a nonimmigrant visa applicant appear before an officer for a personal interview may be waived by the consular officer.” The rule notes that Section 222(g) of the Immigration and Nationality Act requires a personal appearance for immigrant visa applicants, whereas any personal appearance for nonimmigrant visa applicants is to be determined by regulation. Accordingly, “certain visa applicants who previously may have had their personal appearance before a consular officer…waived will be required by regulation to make such an appearance to be interviewed.”

   Under the new rule, effective August 1, 2003 only nonimmigrants meeting one of the following criteria may be exempted from the interview requirement:

    

   - children under 16 years of age

   - persons 60 years of age or older

   - certain aliens traveling to United Nations headquarters, diplomats and foreign government officials, their immediate family members, attendants, servants or personal employees

   - persons who previously held a visa within the same nonimmigrant class and which expired not more than 12 months ago, who are applying “at the consular post of the applicant’s usual residence,” and for whom there is “no indication of visa ineligibility or noncompliance with U.S. immigration laws and regulations”

   - if “national interest” or “unusual circumstances” warrant a waiver of appearance for an applicant, as determined by the consular officer or Deputy Assistant Secretary for Visa Services

   - if the Deputy Assistant Secretary for Visa Services determines that a class of applicants warrants a waiver on grounds of national interest or unusual circumstances

    

   Revalidation Option

    

   As an alternative to consular processing, nonimmigrants in the E, H, I, L, O and P employment-based classifications may seek revalidation of their visas through the DOS Visa Office in the U.S.A. Doing so, however, involves its own pitfalls and revalidation is not guaranteed.

    

   Applications for revalidation will be processed if received either sixty days or less prior to visa expiration or no more than 12 months after visa expiration. The processing timeframe is approximately 10 – 12 weeks, and a “strict first-received, first processed policy” is in place. There is no expedite procedure. An applicant requiring return of his/her passport prior to visa revalidation must withdraw the application.

    

   Information regarding revalidation requirements is available on the DOS web site at http://travel.state.gov/revals.html.

    

   Visa Waiver Option

    

   Aliens from certain countries having B-1/B-2 visa refusal rates of less than 3% for the previous fiscal year may be eligible to travel to the U.S.A. as visitors without first obtaining a visa under the Visa Waiver Program (“VWP”). Current VWP participants are Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom. Among other restrictions, the VWP authorizes travel only for legitimate tourist or business visitors intending a U.S. stay of 90 days or less.

    

   VWP travelers, however, must be aware that effective October 1, 2003, only machine-readable passports will be acceptable in the program. The DOS web site states that “Those without MRPs must obtain a nonimmigrant visa. This change includes all categories of passports -- regular, diplomatic, and official, when the traveler is seeking to enter the U.S. for B-1/B-2 purposes.” Moreover, “[f]amilies and groups seeking to enter the U.S. under the VWP will need to obtain an individual passport for each traveler, including infants. Machine-readable passports typically have biodata for only one traveler in the machine-readable zone. Based on this, families may be denied visa-free entry into the U.S. if the biodata for only one traveler is machine-readable.”

3. Religious Worker Sunset Warrants Expedited Handling

   By Memorandum dated July 18, the Department of Homeland Security (“DHS”) advised its offices that certain “special immigrant” religious worker petitions, adjustment of status applications and immigrant visa processing are to be expedited. The memo applies to “professionals” or those working in a “religious vocation or occupation,” for whom existing law has a sunset date of September 30, 2003. Accordingly, affected petitioners and beneficiaries should be sure to immediately pursue expedited processing.