In the crowded menagerie of the U.S. government’s targeted sanctions programs, different sanctions do different things. Over recent months, one of the stranger creatures in the menagerie – the confidential visa ban – has proliferated in U.S. press releases about human rights abuses and threats to democracy.
When the U.S. government uses most of its other sanctions tools — like the Treasury Department’s Global Magnitsky program for abuse and corruption — it publicly names names. Indeed, for civil society advocates who seek out sanctions, that is often the point. The action imposes stigma and scrutiny on an alleged perpetrator, and it provides leverage for local activists seeking accountability.
With increasing frequency, though, the Department of State has announced that it is imposing visa bans for abuses and other bad acts but cannot reveal whom it has sanctioned, and that the sanctioned people themselves may be left unaware. Similarly, under a different legal authority, the State Department has sometimes kept visa bans secret even though it had the option to publicize them.
Visa sanctions can be useful tools to spur accountability, especially for acts that fall outside the legal scope of what other sanctions programs can cover. But as the Biden administration has come to rely increasingly on these tools – as we at Human Rights First documented in a recent report – these measures need to be used more transparently if they are to have a serious impact, and if the public is to have confidence that U.S. policy efforts relying on these tools are meaningful.
What Works, What Doesn’t
Visa sanctions can matter. Some recent U.S. announcements of visa bans have had a significant political impact, even if they lacked the additional financial punch of an asset freeze imposed by the Treasury Department.
In December 2022, for example, shortly after the State Department barred a Ukrainian judge from the United States because of his alleged corruption, the Ukrainian parliament finally acted on long-standing demands from Ukrainian civil society to reform the notorious court that he led. In August 2023, Congolese activists praised the State Department’s visa sanctions against three allegedly corrupt officials of a Congolese conservation agency, an action that prompted local authorities to start an investigation that the activists supported with evidence they had developed.
This kind of impact, of course, depends on public knowledge of who has been sanctioned. Our new report takes stock of the two major U.S. visa sanctions programs that instead operate anonymously, either always or some of the time, and assesses the limits of using these tools to promote accountability.
First, we found that the Biden administration has made unprecedented use of visa bans under Section 212(a)(3)(C) of the Immigration and Nationality Act, otherwise referred to as the “foreign policy” or “3(C)” visa-ban authority. Most of these actions have focused broadly on human rights concerns, which is generally welcome, though it is hard to know what this activity really amounts to.
By law, the State Department cannot publicly say whom it bars from entering the country with this tool. The department often announces in more general terms that it has adopted a policy under this authority to ban the entry of individuals whom it finds have engaged in certain conduct – from undermining democracy in Bangladesh to coercively assimilating Tibetan children in China. The 3(C) authority is attractive to the State Department because it provides flexibility in the acts that can be sanctioned.
The State Department has sometimes made these actions less opaque by giving a count or a rough description of the people sanctioned – “2,596 members of the Russian Federation military” in a May 2022 batch, for example, and “over a dozen” Guatemalan officials and others late last year. But it does not always do this, and it has sometimes left unclear whether anyone has actually been sanctioned under an announced policy. That remains the case with a June 2021 policy about spoilers in the crisis in Cameroon’s Anglophone regions, for example, and a June 2023 policy aimed at foreign officials who help their nationals evade U.S. justice for serious crimes.
The Biden administration has already publicly announced at least 22 such policies, including seven since June 2023, compared to 11 in the Trump administration’s full term. Some of the policies announced using this tool have been creative, aiming at important global problems like transnational repression or at crises that may not prompt White House action. This administration’s 3(C) policies have been less exclusively focused on U.S. adversaries like China and Cuba than those of the Trump administration, which also abused this authority when it sanctioned international war crimes prosecutors.
Current and former U.S. officials have said that some of these policies have grabbed the attention of perpetrators and helped deter bad acts – for example, as part of the recent U.S. push to keep the democratic transfer of power in Guatemala on track.
In several contexts, however, local human rights advocates who spoke with us were deeply skeptical of the impact that this kind of sanction can have. An activist from Nigeria told us she had seen “no evidence of any significant impact” from a pair of nameless visa-ban announcements in 2023 focused on individuals undermining democracy there. A Congolese civil society leader contrasting different types of U.S. visa sanctions told us, “The sanctions with names … are more dissuasive and educational than the anonymous ones.”
That stands to reason, and makes it all the more regrettable that the recent surge in visa sanctions has come against the backdrop of a quiet year for the Global Magnitsky program, which saw 30 percent fewer sanctions imposed in fiscal year 2023 than the previous average.
Limited Public Scrutiny of Section 7031(C) Sanctions
The use of confidential sanctions has made it impossible to assess how the administration is implementing the general legal ban – imposed under Section 7031(c) of annual U.S. appropriations laws – on corrupt or abusive foreign officials entering the United States. The State Department is allowed to disclose whom it has found to meet that ban’s criteria, but it does not always do so.
Using this flexibility to keep a sanction confidential may be reasonable in specific cases, though it means missing an opportunity: the impactful Ukraine and Congo sanctions mentioned above were imposed using Section 7031(c) and named names.
Just as critically, the State Department’s lack of overall disclosure about whom it has sanctioned or waived under this program keeps half of the program in the dark. The State Department reports some details to Congress behind the scenes, but the public has no knowledge of how many people – if any – are being sanctioned confidentially, or how many and what kind of waivers have been given. In sum, the public does not know how this ban is being implemented, or why some notorious foreign officials – like a senior Bahraini prince accused of torture – can visit the country despite credible allegations of corruption and human rights violations.
Solving the Information Gap Problem
There are some straightforward ways to mitigate the shortcomings in these two programs. The State Department should periodically release aggregate statistics about its Section 7031(c) sanctions, including at least the number of people it has confidentially sanctioned and the number and types of waivers it has invoked to bypass the sanctions. Congress should also legislate an exception to confidentiality – as proposed in a bipartisan 2021 bill – that would allow the Secretary of State to name names when he or she uses the 3(C) foreign policy authority.
The Biden administration should also acknowledge that there are some foreign policy tasks with which this set of tools is not commensurate. When the State Department in February 2021 announced the “Khashoggi Ban” – a 3(C) visa-ban policy described as being aimed at Saudi and other individuals involved in transnational repression – it was seen as a welcome tribute to Jamal Khashoggi after his murder by Saudi government agents.
As the Biden administration’s commitment to distancing itself from the brutal Saudi government waned, though, it continued to point to the Khashoggi Ban as evidence that human rights remained a meaningful factor in its Saudi policy. But U.S. actions reflected in Biden’s fist-bump with the Saudi crown prince drowned out other elements of the relationship with Riyadh, especially as it remained unclear who had actually been sanctioned under the ban. The State Department’s inability to say whom exactly it has sanctioned under a new 3(C) visa ban on extremist Israeli settlers and others destabilizing the West Bank is similarly likely to raise doubts over how significant that step is.
In the right context, a visa ban can be a politically powerful action. Advocates are generally right, though, to see the anonymous variety of this tool as a strange and inscrutable creature in the overall toolkit of sanctions programs. More transparency would give these sanctions more bite to match their bark, and make it clearer whether the policy that a given sanction is advancing is sufficiently robust.