SLIPPING THROUGH THE CRACKS: Entry to the U.S. and the Texas Hostage-Taker

Shortly after the hostage situation at Congregation Beth Israel in Colleyville, Texas, ended with the attacker dead and his captives safe, questions abound as to how Malik Faisal Akram managed to enter the United States in the first place.

A British national, Akram had an extensive criminal record including a violent assault for which he served time in prison. In 2001, he was banned from entering a local courthouse after threatening staff and ranting about the September 11 attacks.

In recent years, Akram made several visits to Pakistan, where he reportedly formed an association with Tablighi Jamaat, a radical Islamist group that has been banned in Saudi Arabia and several Muslim-majority former Soviet states due to suspicion of terrorist affiliations.

In 2020, Akram was investigated by the British intelligence agency, MI5, but it ultimately determined that he did not pose a terror risk.

The incident at Beth Israel bore all the signs of Islamist terror mixed with what Akram’s friends and family identified as the attacker’s propensity to violence along with mental health issues. Akram targeted a Jewish group with the intention of using his hostages to help free Aafia Siddiqui, known as “Lady al-Qaida,” a Pakistani convicted of attempting to murder U.S. soldiers, who is serving an 86-year prison term near Colleyville.

After the hostage crisis ended, the attacker’s brother, Gulbar, who spoke to Akram during the attack and tried to negotiate a peaceful end, questioned what seemed like an obvious failure to pick up on warning signs.

“He’s known to police. Got a criminal record. How was he allowed to get a visa and acquire a gun?” asked Gulbar Akram.

A reporter posed the same question at a White House press conference, eliciting what seemed like an insufficient answer:

“Our understanding and, obviously, we’re still looking into this, is that he was checked against U.S. government databases multiple times prior to entering the country, and the U.S. government did not have any derogatory information about the individual in our systems at the time of entry,” said Press Secretary Jen Psaki.

In addition to a call for scrutiny as to why the U.S. apparently did not have Akram’s records, the incident has bolstered calls to reform the Visa Waiver Program (VWP) under which the hostage taker was able to entry the country easily.

The VWP was instituted in the late 1980s and became a permanent fixture in 2000. Currently, there are some 40 countries covered by the program including nearly all of Europe, Australia, New Zealand, South Korea, and Taiwan. Under the VWP, travelers to the U.S. for stays of 90 days or less are exempt from standard visa applications, which, most significantly, relieves them of visiting a U.S. embassy or consulate prior to travel.

After the 2015 terror attacks in Paris, several voices in Congress called for the VWP to be revisited, as all perpetrators technically could have entered the U.S. under the program. Yet, the only significant action taken was to bar individuals with dual citizenship in several Middle Eastern terror hot spots from entry without undergoing a regular visa application process.

Now that Akram, as a British citizen, actualized the fear voiced by some in 2015, there are renewed calls to tighten the VWP.

Some critics have also suggested that the ease with which the attacker was able to enter the U.S. is rooted in the Biden administration’s undoing of Trump-era policies focused on addressing illegal immigration and steps to lower risks of entry by terrorists.

While a series of executive orders that controversially became known as a “travel ban” mostly attracted attention for what opponents claimed was the targeting of Muslims, these same directives also contained several clauses aimed at raising the bar on screening in general.

“It is, therefore, the policy of the United States to take all necessary and appropriate steps to encourage foreign governments to improve their information-sharing and identity-management protocols and practices and to regularly share identity and threat information with our immigration screening and vetting systems,” read one section of the order.

On day one of President Joseph Biden’s presidency an executive order nullified the Trump era directive, wiping out heightened background checks, together with the more politically charged aspects.

The Federation for American Immigration Reform (FAIR), a lobbying organization that advocates for more restrictive immigration policies and more scrutiny on entry to the U.S., is one organization that has taken a role in advocating for changes to the VWP and taken a position against the Biden administration’s reversal of Trump policies on these issues.

Hamodia spoke with FAIR spokesman Ira Mehlman about the loose ends his organization feels the Texas hostage crisis revealed in America’s entry policies.

What usual vetting should go on when someone applies for a tourist visa from a non-VWP country?

The person would have to go to the embassy or consulate in person for an interview. A background investigation would be done to determine whether they have any criminal record or terrorism associations.

They could ask the person to show that they have proof of employment and means of support, family connections, and the like in his country to evaluate whether the person is a risk not to return home after the 90 days of the visa are up.

How does that differ from when a traveler from a VWP country wants to travel to the U.S.?

As what unfolded in Colleyville showed us, just because someone is from a VWP country that does not mean that they do not pose a risk. There is a layer of screening that goes on, even for these travelers. They have to fill out an ESTA application that gives some of their basic information. Background checks should be going on behind the scenes and any red flags should be looked into.

Just like when Americans travel abroad, even if you are not aware of it, the other country has some information on you and it’s not a surprise to their system when you arrive. Also, even when it comes to a traveler from a VWP country, the border agent at the airport views their information and has discretion to flag them for further investigations or to detain them before they are allowed into the county.

What criteria does the U.S. use to decide whether to place a nation on the VWP list?

Countries with a low risk of terrorism and low percentage of travelers overstaying their 90 days in the U.S. are key factors as well as a willingness on the part of the foreign government to reciprocate and streamline entry to their country for Americans.

What went wrong in Akram’s case? Why did the U.S. seemingly not have the red-flag background information that the British clearly knew about?

I think that there are going to have to be some investigations to look into those questions. Had America known that he had a criminal record and that he had frequently traveled to Pakistan, which is a hotbed of terrorism, you would hope they would have asked questions.

They definitely should have had this information on him; and we need to find out why it didn’t reach the parties it should have. It does seem to be a pattern with the Biden administration turning a blind eye to a lot of the safeguards in the immigration and entry system that are being ignored or done away with.

The Trump administration order’s section on intelligence sharing and vetting painted broad strokes, but what do we know about the practical changes it brought about on the ground while it was in place?

It’s hard to know exactly what happened behind the scenes. Based on the language of the order, it would seem that U.S. agencies requested more information from travelers’ countries of origin and put a greater emphasis on intelligence sharing. That could have helped a great deal in this case since Akram was on MI5’s radar. Even if their investigation cleared him, you would expect that they would tell the U.S. to be aware of the concerns he raised.

What do you think President Biden’s nullification of the order’s sections dealing with travel entry has changed in a practical way?

We don’t know the details, but they have certainly become laxer. Alejandro Mayorkas, who is now in charge of Homeland Security, seems set on giving applicants the benefit of the doubt when it comes to immigration applications, so it’s reasonable that the same approach extends to travel entry as well.

The administration came in with a philosophy that they should get rid of whatever was implemented by the Trump administration. And as we see at the southern border, there is an administration-wide philosophy to admit people looking to come to this country whether they are qualified or not.

Do you feel that Akram’s entry would have been prevented, had the Trump administration order remained in place?

No system is perfect, and the amount of time staff can spend on any individual is dictated by the volume of people coming into the country. Still, it does seem that had the order remained in place, the chances would have been much better that this would not have happened.

Had there been a culture in place of more scrutiny on travelers and intelligence sharing, you would think that our consulate in Manchester which processed his application would have picked something up.

There is an argument that since well over 99% of travelers from VWP countries do not pose any danger, that it does not pay to make the system more cumbersome, and the minuscule amount of risk should be accepted. What is your response to that position?

It depends on the degree to which you want to make the system cumbersome. There definitely are other considerations that should be taken into account. But I think we saw during the previous administration that you are able to have an enhanced level of vetting and to keep the system running smoothly at the same time.

What are some of the key changes your organization is advocating regarding the VWP?

The most important is that if foreign governments are not cooperative and do not provide the information that they should, that should be a disqualification. The U.S. should use the ease of travel that the VWP provides as a stick to get governments to comply.

Second to that would be that the U.S. should complete and put in place the biometric exit program which was mandated by an act of Congress in 2007. This system gathers fingerprints and other identifying information which is in place for entry, but not exit, and it’s important for the government to have a better way to track who is still here.

If implemented, how do you think the changes you advocate would practically affect travel to the U.S. for citizens of VWP countries?

It shouldn’t change much for them. This mostly has to do which what happens behind the scenes in screening ESTA [Electronic System for Travel Authorization] applications and at the consulates who should be checking with local authorities to make sure these travelers do not pose a threat.

How could these changes be made and how confident are you that they could be implemented as good governance policies above the political fray?

They could be done with administrative changes and should not need legislation. I would like to think that it can be non-political, but that doesn’t play out too often.