Starting in July, the U.S. Department of Homeland Security (DHS) and the State Department reportedly plan to admit Israel into the selective U.S. Visa Waiver Program (VWP) following a one-month trial. If Israel can demonstrate that it has ended its practice of discriminating against Americans on the basis of national origin, religion, or political views, that waiver will become permanent. Under the principle of reciprocity, entry into the program requires that all Americans traveling to and through a participating VWP country, or territories held by that country, be treated in exactly the same way as that participating country’s nationals are treated when they travel to the United States.
Americans of certain backgrounds, namely Arabs and Muslims, have long suffered discriminatory treatment when visiting Israel—something the U.S. government warns travelers to beware of on the State Department’s website. Nevertheless, just days before the trial period is supposed to start, Americans are still reporting discriminatory treatment at Israeli border crossings, and no mechanism exists to determine the number of American travelers who have been barred from the area—or the reasons for their exclusion.
Recent reports that the U.S. Embassy in Israel is negotiating an agreement that would effectively create a special exception to exempt Israel from the program’s reciprocity requirement are of deep concern. Without an agreement that ensures Israel will honor the principle of reciprocity and respect the rights of all American travelers, the visa waiver agreement between the United States and Israel is likely to become the first one to enshrine discrimination against certain American travelers as acceptable.
Under the reported agreement, some Americans—namely those who hold a Palestinian ID—would be required to obtain a military-issued permit to travel to Israel to use the airport and visit family members in the West Bank, while other Americans would only be subject to civil law and given free access to the West Bank for any purpose, with no restrictions on their entry and travel throughout the area.
Such an agreement for differential treatment of Americans would violate the fundamental reciprocity principle upon which the highly coveted U.S. Visa Waiver Program was built and would effectively normalize ethnoreligious discrimination and racial profiling of American citizens. No other country of the 40 current participants in the waiver program has had difficulty committing fully to the requirement for reciprocity of treatment—a fundamental tenet that undergirds all of its diplomatic interactions, as well as international human rights conventions and stated U.S. values of civil rights, justice, and equality.
The aim of the U.S. Visa Waiver Program is to ensure and enhance the security of all Americans. No country has a “right” to enter the program. It is and was designed to be selective and, as such, has several concrete requirements that any participating country must meet to gain entry.
The U.S. government has no authority to negotiate away the rights of some Americans, and it’s outrageous that it would consider such a thing. Of course, the 30,000 to 70,000 Palestinian Americans who live in the West Bank and the hundreds who live in Gaza should be able to use the airport in Israel; that should be non-negotiable. But the inquiry into whether Israel qualifies for the program does not end there.
The number of Americans affected by Israel’s discriminatory legal regime at border crossings is much broader than those who claim Palestinian descent. They include Arab and Muslim Americans and those born in, or who have ever held travel documents from, states Israel considers enemies—in several cases, even after they have signed peace agreements and/or normalized relations with Israel, such as Jordan and Morocco.
It also includes any American who publicly supports constitutionally protected political boycotts of Israel—including U.S. members of Congress—or those who write, teach, or speak out about Palestinian human rights. In contrast, the United States does not impose restrictions on the travel of Israeli visitors—regardless of their political views, countries of origin (including those with Russian nationality), or beliefs.
Members of the current Israeli government who express abhorrent views about wiping out Palestinian towns have obtained visas to enter the United States. Israeli short-term visitors, many of whom are young former soldiers who in the past have shown to be at increased risk of overstaying their visas, are free to use any U.S. airport to transit through to another port of entry anywhere in the country or on their way to another destination.
The United States does not demand that Israeli short-term visitors obtain special permits issued by the military to enter certain parts of the United States or U.S. territories, and it does not require Israeli visitors to submit to security checks that do not apply to all other travelers, regardless of their national origin. But this is how some classes of Americans experience Israel and the occupied territories when they attempt to travel there.
Because of the special challenges presented by Israel and the regime it imposes on certain groups of travelers, previous administrations, including President Barack Obama’s, have refrained from pursuing a visa agreement with Israel.
Before the trial period begins and Israel is admitted into the program, a mechanism must be put in place to ensure that the discriminatory treatment and racial profiling of Americans at Israeli-controlled border crossings and checkpoints has ended. For example, at the land crossing between Jordan and Israel, where the United States apparently does not have accurate numbers for how many Americans are being excluded from entry each year, systems should be put in place so that travelers are able to scan their own passports, which would allow U.S. officials to know when an American is attempting to enter and can therefore monitor occurrences of entry denials or ill treatment.
Until such processes are put in place, there will be no way to know if Israel is complying with the terms of the Visa Waiver Program, and Americans will continue to face discrimination. A pilot program without such mechanisms to test compliance eviscerates the very reason for having a trial period. The DHS and State Department must take the time to get this right, or, if that goal is not achievable, they must avoid greenlighting Israeli policies that have been harming certain groups of Americans for decades. If they do anything less than guarantee full compliance with the reciprocity requirement, the Biden administration will effectively be writing racial discrimination back into U.S. law.