[Senate Hearing 109-71]
[From the U.S. Government Publishing Office]
S. Hrg. 109-71
STRENGTHENING ENFORCEMENT AND BORDER SECURITY: THE 9/11 COMMISSION
STAFF REPORT ON TERRORIST TRAVEL
=======================================================================
JOINT HEARING
before the
SUBCOMMITTEE ON IMMIGRATION, BORDER SECURITY AND CITIZENSHIP
and
SUBCOMMITTEE ON TERRORISM, TECHNOLOGY AND HOMELAND SECURITY
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
MARCH 14, 2005
__________
Serial No. J-109-6
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
David Brog, Staff Director
Michael O'Neill, Chief Counsel
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
------
Subcommittee on Immigration, Border Security and Citizenship
JOHN CORNYN, Texas, Chairman
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio DIANNE FEINSTEIN, California
JEFF SESSIONS, Alabama RUSSELL D. FEINGOLD, Wisconsin
SAM BROWNBACK, Kansas CHARLES E. SCHUMER, New York
TOM COBURN, Oklahoma RICHARD J. DURBIN, Illinois
James Ho, Majority Chief Counsel
Jim Flug, Democratic Chief Counsel
------
Subcommittee on Terrorism, Technology and Homeland Security
JON KYL, Arizona, Chairman
ORRIN G. HATCH, Utah DIANNE FEINSTEIN, California
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
JOHN CORNYN, Texas JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama RUSSELL D. FEINGOLD, Wisconsin
LINDSEY O. GRAHAM, South Carolina RICHARD J. DURBIN, Illinois
Stephen Higgins, Majority Chief Counsel
Steven Cash, Democratic Chief Counsel
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Cornyn, Hon. John, a U.S. Senator from the State of Texas........ 1
prepared statement........................................... 56
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California..................................................... 6
Kennedy, Hon. Edward M. a U.S. Senator from the State of
Massachusetts.................................................. 8
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona.......... 4
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 82
WITNESSES
Dezenski, Elaine, Acting Assistant Secretary for Border and
Transportation Security Policy and Planning, Department of
Homeland Security, Washington, D.C............................. 10
Kephart, Janice L., former Staff Counsel for the 9/11 Commission,
and Senior Consultant, Investigative Project on Terrorism,
Mount Vernon, Virginia......................................... 27
Meissner, Doris, former Immigration and Naturalization
Commissioner, and Senior Fellow, Migration Policy Institute,
Washington, D.C................................................ 25
Walters, Thomas J., Assistant Commissioner for the Office of
Training and Development, Customs and Border Protection,
Department of Homeland Security, Washington, D.C............... 11
QUESTIONS AND ANSWERS
Responses of Elaine Dezenski to questions submitted by Senators
Kyl and Kennedy................................................ 40
SUBMISSIONS FOR THE RECORD
Benesch, Susan, Refugee Advocate, Amnesty International USA, New
York, New York, statement...................................... 60
Dezenski, Elaine, Acting Assistant Secretary for Border and
Transportation Security Policy and Planning, and Thomas J.
Walters, Assistant Commissioner for the Office of Training and
Development, Customs and Border Protection, Department of
Homeland Security, Washington, D.C., statement................. 69
Kephart, Janice L., former Staff Counsel for the 9/11 Commission,
and Senior Consultant, Investigative Project on Terrorism,
Mount Vernon, Virginia, statement.............................. 78
Meissner, Doris, former Immigration and Naturalization
Commissioner, and Senior Fellow, Migration Policy Institute,
Washington, D.C., statement.................................... 84
Mexican American Legal Defense and Education Fund, Katherine
Culliton, Legislative Staff Attorney, Washington, D.C.,
statement...................................................... 92
Visa applications of 9/11 hijackers.............................. 105
STRENGTHENING ENFORCEMENT AND BORDER SECURITY: THE 9/11 COMMISSION
STAFF REPORT ON TERRORIST TRAVEL
----------
MONDAY, MARCH 14, 2005
United States Senate,
Subcommittee on Immigration, Border Security, and
Citizenship, Subcommittee on Terrorism, Technology and
Homeland Security, of the Committee on the Judiciary
Washington, DC.
The Subcommittees met, pursuant to notice, at 2:30 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. John Cornyn,
[Chairman of the Subcommittee on Immigration, Border Security
and Citizenship] presiding.
Present: Senators Cornyn, Kyl, Kennedy and Feinstein.
OPENING STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE
STATE OF TEXAS
Chairman Cornyn. Good afternoon. This Joint Hearing of the
Senate Subcommittee on Immigration, Border Security and
Citizenship, and Senator Kyl's Subcommittee on Terrorism,
Technology and Homeland Security shall come to order.
First I want to thank Chairman Specter for scheduling this
hearing, but I also want to particularly thank Senator Kyl, who
chairs the Terrorism and Homeland Security Subcommittee, for
allowing us to meet jointly. The Subcommittee that I chair is
the Immigration and Border Security Subcommittee, and there
seem to be so many common themes and intersections that we
thought it would just be more efficient to have these two
Subcommittees meet together. I look forward to continuing to
work with Senator Kyl on these issues as we debate immigration
reform and security enforcement in the months ahead.
I also want to express my appreciation to Senator Kennedy,
the Ranking Member of my Subcommittee on Immigration and Border
Security, and Senator Feinstein, the ranking Subcommittee
member on the Terrorism Subcommittee, and obviously also all
the staff that have worked so hard to make this hearing
possible today.
Last year I was honored to serve as the Chair of the
Constitution, Civil Rights and Property Rights Subcommittee and
work closely with Senator Feingold, the ranking member.
Although we parted company on some issues, I found that Senator
Feingold was always a principled, courteous and devoted Ranking
Member of the Subcommittee and I will certainly miss working
with him and his staff in that capacity.
But, I am particularly looking forward to this new
responsibility on the Immigration and Border Security
Subcommittee and working with Senator Kennedy, whose devotion
and commitment to immigration issues is longstanding and well
known. I think it is especially gratifying to serve on this
Immigration Subcommittee at this time in our Nation's history.
President Bush has articulated to the Nation a vision for
comprehensive reform of our immigration laws, in the interest
of our Nation, in the interest of our security, in the interest
of our economy, and in the interest of the rule of law. I am
sympathetic to the President's vision and I look forward to the
critical role that this Subcommittee will play in the coming
Congressional debate.
But before we debate the need for reforming immigration
law, we should ask ourselves why it is that we have so
miserably failed to enforce current law. Is it due to lack of
resources? Is it due to a lack of will? Is it because our
current laws are out of sync with economic reality? Or is it
for other reasons entirely? No doubt, whatever the reasons, our
current immigration system is badly broken. It breeds
disrespect for the law and imposes serious risks to our
National security.
As an American, I am deeply troubled by our chronic
inability, even our unwillingness at times to do what is
necessary to enforce our immigration laws. And, although I am
proud that we are sometimes called a Nation of immigrants, but
I am concerned because we are also first and fundamentally a
Nation of laws.
As an American I believe our immigration laws can be
designed to be both compassionate and humane. At the same time
I believe our immigration laws must be designed to protect U.S.
sovereignty and further U.S. interests.
As an American I understand that our immigration policy can
be reformed to better serve our National security and our
National economy. At the same time I understand that unless we
can ensure enforcement of the law, it is futile to discuss
reforming it.
Toward that end, today's hearing is just the first in a
series of hearings on strengthening enforcement, the first in a
series of hearings to focus attention on the challenges that we
face when enforcing our immigration laws. I hope that the
series will serve at least two purposes. First, the hearings
should help us identify those challenges to enforcing
immigration laws that we can address, such as additional
resources and legal tools. Second, the hearings may help us
consider whether comprehensive immigration reform would be
helpful to the cause of stronger enforcement of our laws.
Future hearings will look at interior enforcement and the
need to strengthen our deportation system, because we need to
review our immigration system from top to bottom. Today's
hearing will examine the challenges to enforcement we face at
the border.
It will examine the analysis and recommendations from the
border security staff report of the 9/11 Commission, entitled
``9/11 and Terrorist Travel.'' The 9/11 Commission and their
staff performed a tremendous public service by providing a
comprehensive review of the facts and circumstances surrounding
the attacks of September the 11th. I hope that those of us in
Congress will never tire of reviewing the lessons learned from
the failures that led to that terrible day. As that report
makes clear, defects in our ability to enforce our laws and to
secure the border pose a threat not only to the rule of law,
but to the security of our Nation as well.
Specifically, the border security staff identified several
deficiencies in the training of border personnel and several
defects with regard to our visa policy. The report noted that
our immigration inspectors, now called CBP officers, received
little counterterrorism and behavioral science training, no
cultural training, and rarely received follow-up training. They
also wrote that ``critical continuing education on document
fraud was rare.''
The report also recognized that our visa process allowed
terrorists to exploit our system and gained extended stays
within our country. Recognizing this defect, terrorists
concentrated on ways to exploit legal entry into our country,
whether by lying on entry forms or using manipulated or
fraudulent documents. All but two of the nonpilots involved in
the 9/11 attacks were admitted as tourists and were granted
automatic six-month stays. This allowed them to maintain a
legal immigration status through the end of the 9/11 attacks.
We should examine the process by which length of stay is
determined to ensure that inspectors grant an appropriate time
period to those seeking to enter our country.
And we should make no mistake, this type of exploitation
continues. Just last week FBI Director Mueller testified that
he was aware of people going to Brazil, assuming false
identities and making their way through Mexico to cross the
U.S. border with their new identities and documents. And recent
news reports, as recently as today, cite intelligence officials
who believe that Al Zarqawi has considered plans to enter the
United States in this very fashion.
The border security report makes clear all of the 9/11
attackers entered our country through a legitimate port of
entry, passing through border security 68 times prior to
carrying out their deadly attacks. These border encounters are
the time to detect and arrest those who use document fraud and
manipulation to enter. Immigration inspectors must receive
periodic updated training about document manipulation, fraud
and other illicit methods used to enter our country because
these inspectors are in the best position to stop those who
come here to do us harm.
But we also know that al Qaeda and other terrorists plot
their attacks and modify their plans over long periods of time.
Undoubtedly they will attempt to gain entry to the United
States undetected between ports of entry.
I recently flew with the border patrol over the Texas-
Mexico border around Laredo, Texas, and I must tell you, from
what I saw there and reported back to my colleagues, I am
concerned that our expansive and porous border leaves our
country vulnerable still today.
This vulnerability was highlighted by Deputy Homeland
Security Secretary Admiral James Loy in recent testimony before
the Intelligence Committee. He said: ``Recent information from
ongoing investigations, detentions and emerging threat streams,
strongly suggest that al Qaeda had considered using the
Southwest border to infiltrate the United States. Several al
Qaeda leaders believe operatives can pay their way into the
country through Mexico and also believe that illegal entry is
more advantageous than legal entry for operational security
reasons.''
It is imperative that we find a solution to this exposure.
Clearly, a part of the ultimate resolution is well-equipped,
trained and funded border patrol agents and inspectors.
Our front line border personnel are highly dedicated and
loyal public servants. They process visitors in a timely
fashion to avoid legitimate travel and commerce backlogs, while
simultaneously identifying those who should not be allowed to
enter into our country. This is a high stress job, particularly
in the post 9/11 environment.
Yet we will never have effective enforcement at our borders
unless we adequately train the people we task with carrying out
this job, and the thought that inspectors may unwillingly
facilitate the introduction of terrorists, weapons of mass
destruction or illegal drugs into this country because they
have not received the information or training they need is
simply unacceptable.
That is why we have to do everything in our power to ensure
that these front line defenders have all that they need in
order to get the job done.
I hope to hear today how the Department of Homeland
Security has enhanced their training programs to reflect the
increased importance of our front line inspectors' role in the
defense of our country, and how the Department of Homeland
Security considers and grants visas to ensure the system is not
exploited.
[The prepared statement of Senator Cornyn appears as a
submission for the record.]
With that, let me turn the floor over to Senator Kyl, and
then to Senator Kennedy and Senator Feinstein for any remarks
they may have.
OPENING STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE
STATE OF ARIZONA
Chairman Kyl. Thank you very much, Senator Cornyn.
I too want to welcome all of you to this hearing in which
we will examine the work of the Department of Homeland Security
and its efforts to ensure that terrorists are not permitted to
travel to this country posing as legitimate visitors.
I too recently visited our border in Arizona, and it is
very clear that our border control continues to face enormous
challenges in keeping out the people who cross illegally.
Our hearing today is going to try to focus more on how
people get documents to come into the country legally, and the
reasons that we know this was a problem is because of the 9/11
hijackers, which I will get into in just a moment. But we are
very interested in the work that the Department of Homeland
Security is performing in our consulates abroad because this is
often the first place that our United States representatives
have to encounter foreign nationals who seek to enter our
country, and it is there that we begin the process of ensuring
the integrity of the visa application and issuance process.
We count on professionals staffing our consular offices to
extend our welcome to the world, but also to keep a watchful
eye on travelers who seek to exploit the system in order to do
us harm or violation to our immigration laws.
The Enhanced Border Security and Visa Entry Reform Act of
2002 added safeguards to ensure that visa applicants were
better screened, first by mandating specialized training for
the consular officers to recognize terrorists or terrorist
threats; second, requiring the State Department to
electronically share information on visa applicants with the
Department of Homeland Security; and third, by mandating that
travel documents and passports contain biometric identifiers
and features whereby we can authenticate the person applying
for the particular kind of visa, and that these identifiers by
machine readable and tamper resistant.
We have expressed grave concern with the way that the
consular officers in the past screened or even sometimes failed
to screen would-be travelers to the United States, and with the
guidance that they receive from the State Department.
I authored an amendment for inclusion in last year's
intelligence reform legislation that was prompted by a finding
of the 9/11 Commission and its recommendation that most foreign
nationals should be personally interviewed by consular officers
before they are issued visas. The personal interview is an
important part of the process of determining whether a foreign
national may pose a security risk. The amendment that I
authored last year also required that visa applications be
completely and accurately filled out by the applicants in order
to be considered for approval.
Chairman Cornyn, I am going to insert in the record at this
point a copy of each of the forms that the 9/11 hijackers
submitted, which reveal clearly the failure to provide
information that should have been provided to our consular
officers, and that should have alerted them to the necessity of
conducting oral interviews with these applicants.
Chairman Cornyn. Without objection.
Chairman Kyl. All 15 of the visa applications filed by the
9/11 hijackers contained significant inaccuracies or omissions
that should have prevented them from obtaining visas, and only
two of the hijackers were personally interviewed by the State
Department on their applications. The remainder were simply
approved sight unseen.
Now, the Department of Homeland Security has been given the
responsibility for visa policy and oversight of the visa
issuance process, so we are interested in learning what
progress has been made in the security of visa operations, and
in particular, look forward to Acting Secretary Dezenski's
testimony on this matter.
A second line of defense against terrorists trying to enter
our country is located at the ports of entry. The 9/11
Commission noted that no Government agency has systematically
analyzed terrorist travel strategies, even though our security
would have been greatly enhanced by such analysis, and that as
many as 15 of the 19 hijackers were potentially vulnerable to
interception by border authorities, but were not picked up
because of the lack of analysis of characteristic travel
documents and travel patterns.
The Commission staff report added that Immigration and
Naturalization Service inspectors were inadequately trained in
the essentials of identifying terrorists, that they had
received no counterterrorism training, were remarkably
undertrained in conducting primary inspections and in
recognizing fraudulent documents, and that they were not taught
the content and value of the numerous databases at their
disposal, which might have helped them identify members of the
9/11 terrorist group.
We know that DHS has made effort to improve the awareness
and efficiency of the officers who oversee our borders, and I
expect that Chief Walters will give us details on the training
of those officers.
Finally, Chairman Cornyn, I am looking forward to the
testimony of Janice Kephart, who actually worked on my staff
for this Subcommittee before she became a member of the 9/11
Commission staff. So we have a good hearing today, and let me
just say in advance that because a leadership meeting was
scheduled over the top of this hearing, I will have to leave at
just a little bit before 3:30, but will look forward to the
testimony of all of the people who provide that testimony after
I m gone.
Thank you, Mr. Chairman.
Chairman Cornyn. Thank you, Senator Kyl.
Senator Feinstein, would you care to make any opening
remarks?
STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Feinstein. I would. Thank you very much, Mr.
Chairman. I very much appreciate this opportunity and I
certainly thank the witnesses for being here.
I want to address my remarks to the catch and release
program, the Visa Waiver Program and stolen immigration related
documents, specifically with respect to the Southwest border.
In 2003 there were 30,147 other than Mexican intrusions. In
the next year, 2004, which is the latest year for which we have
figures, there were 44,617. That is a 48 percent increase,
which indicates that other than Mexicans are seeing the
Southwest border as a point of vulnerability, going to Mexico
and stealing into our country through that border.
In February of 2004, during a Judiciary Immigration
Subcommittee hearing, Under Secretary for Border and
Transportation Security, Asa Hutchinson, responded to questions
by Senator Grassley regarding the catch and release policy for
other than Mexicans, or as we will say, OTMs, as follows. His
response, and I quote, ``At present DHS has no specific policy
regarding OTMs apprehended at the Southern border. Well, OTMs,
as well as Mexicans, are permitted to withdraw their
applications for admission and can be returned voluntarily to
their country of nationality. As a practical matter, this
option is not readily available to them as it is for Mexicans,
whose government will accept them back into the Mexican
territory. Thus, when apprehended, OTMs are routinely placed in
removal proceedings under Immigration and Nationality Act 240.
It is not practical to detain all noncriminal OTMs during
immigration proceedings, and thus most are released.'' End of
quote.
Now it is my understanding that a majority of OTMs later
fail to appear for their immigration proceedings and simply
disappear into the United States. So you can look back and say
that the likelihood is, in 2004, some 44,000 people other than
Mexicans came across the border and just disappeared.
I have looked at the statistics for each country, and the
so-called countries of concern, Syria, Iran and Iraq, the
numbers are up of penetrations through our Southwest border.
Clearly we are deficient in a mechanism to deal with these.
Thus, it seems to me if I were a terrorist and I wanted to come
into the United States, this is the way I would do it.
The next issue, lost and stolen passports and the Visa
Waiver Program. I cannot go into great detail, but in the
Intelligence Committee I have learned a lot about international
drivers license, Geneva Convention travel documents, stolen
passports, how they are changed, et cetera. I have sent those
information bulletins to Mr. Chernoff, and so I have brought
that to the attention of the Homeland Security Department. I
did this last year as well.
I happen to believe that this is a real problem and the
only true opportunity we have to screen visa waiver travelers
also is through the US-VISIT program. In many cases,
particularly if the terrorists would use airplanes as weapons
against us, this would clearly be too late.
I want to give you a quote from Former Inspector General
Clark Kent Irvin. He stated best in his testimony before the
House Committee on International Relations in June of last year
when he said, and I quote, ``The fundamental premise of the
Visa Waiver Program is that millions of persons about whom we
know little can be exempted from Department of State's ever
more rigorous visa procedures and permitted to board United
States bound planes. As we said in our report, the visa is more
than a mere stamp in a passport. It's the end result of
rigorous screening the bearer must undergo before travel.'' End
quote.
I could not agree more. The Visa Waiver Program involves 28
countries and 13 million who have come into this country every
year. The 9/11 report documents the use of the Visa Waiver
Program by terrorists, and we have a real problem in that
program. Let me quote from the April--and I have the December
report--of the OIG on Visa Waiver Program management. Quote:
``All of the officials we spoke to told us that the Visa Waiver
Program is not properly organized or managed. When INS
disbanded it was reassigned to other responsibilities and
several officials filled in on an interim basis or shared
responsibility for Visa Waiver Program requirements. Since the
establishment of DHS responsibility is unclear. One CBP
official described the Visa Waiver Program as being on
autopilot in an orphaned status with no designated manager or
overseer.''
And then I go on. ``Department of State officials told us,
Department of Health, DHS needs to identify who will be
responsible for the programs. Lines of communication since the
reorganization are unclear.'' And this report on pages 13, 14
and 15, is a serious indictment of this program which is really
the soft underbelly of our Nation's immigration system because
this would allow a terrorist to come into this country from any
Visa Waiver Program, I think with alacrity.
In my questions, I will ask questions which I think will
demonstrate this, but I am most interested to see since these
reports what actions have been taken to tighten up this
program. I understand for the biometric passports that the
Department is going to be coming in for another extension. I
put a hold on it for last year. I held it up till the very last
minute of the Senate, and I was assured that it would be done
for this year. I will do the same thing in this session if it
does not get done, because I truly believe this is a dominant
weakness with respect to terror in this country, and year after
year after year the Department has been requested to get the
computer programs in shape, and hopefully you have been able to
achieve that now. In any event, I will find out.
Thank you very much, Mr. Chairman.
Chairman Cornyn. Thank you, Senator Feinstein.
We have been joined now by the Ranking Member of the
Immigration and Border Security Subcommittee, Senator Kennedy,
and we would be happy to hear any opening remarks you might
have, Senator.
STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE
STATE OF MASSACHUSETTS
Senator Kennedy. Thank you very much, Mr. Chairman, and let
me congratulate you on chairing these hearings, and say that
all of us on this side look forward to working with you on a
lot of very important issues that are of first importance to
families, to our National security and to the kind of country
that we are.
I thank you for calling the hearing and also for having the
9/11 Commission staff report on terrorist travel, and I commend
the Commission and staff for their thoughtful analysis of the
events leading up to 9/11 and for their recommendations for
reducing our vulnerability to attacks in the future.
We have made a number of significant improvements since 9/
11, but no one would argue we have adequately repaired the
broken system of intelligence, border security and immigration.
Better information sharing and training are essential to enable
our front line officers and inspectors to detect and intercept
potential terrorists before they do us harm.
The Intelligence Reform Act Congress passed last December
calls for a strategy to combine travel intelligence, operations
and law enforcement in a joint effort to intercept terrorists
and identify those who facilitate their travel. It also
requires improvements in technology and training to assist
border, consular and immigration officers in this mission, and
I look forward to hearing from our witnesses about the progress
being made.
A survey by the American Federation of Government Employees
last summer found that a majority of the 500 custom and border
protection officers say they do not have the tools, training or
support to stop potential terrorists from entering the country.
According to the 9/11 Commission staff report, al Qaeda altered
passports in four ways: by substituting photos, by adding false
entry/exit stamps, by removing visas and bleaching stamps, and
counterfeiting passports and substituting pages.
I am also interested in hearing about ways to improve
training and expedite access to specialists to obtain useful
real-time intelligence about the terrorist organizations and
operations. We also need to respect the civil rights and civil
liberties. As the 9/11 Commission stated, we advocate a system
for screening, not categorical profiling. A screening system
looks for particular identifiable suspects or indicators of
risk. It does not involve guesswork about who might be
dangerous.
Our goal is also to strengthen the security of our borders
without unduly impeding the legitimate flow of people and
commerce. More than 30 million foreign nationals enter the
United States legally each year as tourists, students or
temporary workers. And over 400 million visitors a year cross
legally from Canada or Mexico to conduct daily business or
visit family members. The goal of our border security is to
keep out those who pose risks to our security in a way that
does not seriously undermine the efficient flow of legitimate
border traffic that is an essential part of our National
economy.
Persons who obtain tourist visas to enter the U.S. can stay
here for 6 months even if they only plan to stay for two weeks.
Most of the 9/11 hijackers entered with tourist visas, and some
have argued that routine six-month stays is related to security
concerns. But limiting the amount of stay in the U.S. could
lead to longer inspection lines and discouraging tourism
without substantially deterring terrorism.
So I look forward to learning more from our witnesses about
the many aspects of the critical issues of border security, and
how Congress can be helpful in accumulating the best possible
improvements.
I thank you very much, Mr. Chairman, for conducting the
hearings.
Chairman Cornyn. Thank you, Senator Kennedy.
We have two distinguished panels this afternoon. The first
is composed of Elaine Dezenski and Tom Walters. Elaine Dezenski
is the Acting Assistant Secretary for Policy at the Bureau of
Transportation Security for the Department of Homeland
Security. She was appointed to this position in October of 2004
and works closely with the various Department of Homeland
Security components and other Federal, State and local
agencies, as well as foreign governments and industry
stakeholders to make the Nation's border and transportation
network secure while protecting free movement of legitimate
goods and people across our borders.
Joining Assistant Secretary Dezenski on our first panel is
Chief Tom Walters, the Acting Assistant Commissioner of the
Office of Training and Development for Customs and Border
Protection. Chief Walters is a long-time border patrol official
with almost 30 years of border patrol experience. He began his
career as a border patrol agent in 1975 in El Paso, and I know
he got a lot of experience there. He is also a graduate of the
first border patrol tactical unit class in 1984. BORTAC, as
this unit is known, is a highly successful tactical team within
CBP that is frequently summoned for high risk and difficult
missions. BORTAC is tasked with anything from suppressing riots
and tracking terrorists to intercepting human smugglers and
drug traffickers. Chief Walters remains associated with that
unit today.
I want to welcome again both of you here in our first
panel, and why do we not begin with Deputy Dezenski, and then
turn to Chief Walters. If I could get you to limit your opening
statement to about 5 minutes, and then we will proceed with
questions from the panel and explore both what you have talked
about and maybe some things you did not have time to talk about
during your opening statements during the Q&A.
Ms. Dezenski?
STATEMENT OF ELAINE DEZENSKI, ACTING ASSISTANT SECRETARY FOR
BORDER AND TRANSPORTATION SECURITY POLICY AND PLANNING,
DEPARTMENT OF HOMELAND SECURITY, WASHINGTON, D.C.
Ms. Dezenski. Thank you very much, Chairman Cornyn,
Chairman Kyl, Ranking Member Kennedy, Ranking Member Feinstein.
On behalf of Secretary Chertoff thank you for the
opportunity to be here today. As you noted, I am fairly new to
my position and I look forward to working with both you and
your staff, moving forward on border and transportation issues.
I am joined by my colleague, Chief Walters, who, as you know,
will be talking to you today about training of our officers.
Our goal today is to provide additional visibility into the
Department's efforts to stop the movement of terrorists across
our borders.
I would like to request that my written testimony be
submitted for the record.
Chairman Cornyn. Certainly, without objection.
Ms. Dezenski. Thank you.
As a Nation we are proud of our history of immigration and
of being a destination for visitors across the globe. DHS
embraces the belief of open doors and secure borders. It
captures this common sense notion that we should keep criminals
and terrorists out of the country while we quickly and easily
process those who are known or low risk.
Building a system that supports this goal requires the
optimal use of policy, technology, biometrics, intelligence and
operational experience, all of which contribute to a layered
system that will stop terrorists.
I would like to outline three major elements of this multi-
layered strategy that we are building. The first is using
information more effectively. The second is leveraging
Government resources, and the third is increasing our
operational efforts or what we call boots on the ground.
It is no secret that pre-9/11 pertinent intelligence and
information was not being shared in a way that would deter the
terrorist threat. As a result, a multi-layered system to
prevent terrorist travel into the U.S. that is supported by the
collection, storing and application of intelligence and
information sources throughout the Government is a top
priority, it must be. Improvements include the integration of
databases that include terror watchlists, visa issuance
information and immigration status information, as well as the
ability for our border patrol to more readily access certain
types of databases.
DHS has taken the lead in using biometrics at home and
abroad. It is part of this information roadmap that we are
trying to build. The VISIT program is the largest daily use
biometric program in the world with 100,000 people processed
every day, and it is working. Since January of 2004 the U.S.
has denied admission at ports of entry to more than 450
individuals based on biometric information alone.
Leveraging Government resources is another important
component of our strategy and one that supports the idea of
open doors and secure borders. The implementation of visa
policy in the U.S. has been delegated to the Secretary of DHS,
but our work at DHS is a close partnership with our colleagues
at the State Department. Together we are working to secure the
system while at the same time combating the perception that
post 9/11 security measures have made it too difficult for
legitimate travelers to come to the U.S.
One important example of our efforts to improve the way we
make decisions about visa applicants is related to what we call
the Visa Mantis program. These are visas that are issued to
scientific, business and research travelers. The average
processing time for a Visa Mantis decision has been reduced
from 67 days to 15 days, and the percentage of Mantis cases
pending more than 60 days has been reduced by 8 percent. These
are the types of improvements that we need to continue to make
in our processing of visas.
We have also made improvements in the area of visa
reciprocity. The U.S. and China recently agreed to a 12-month
visa validity period for business and tourism visas.
Another element to the multi-layered strategy's operations
or boots on the ground, we have focused our available resources
and high priority initiatives in high threat areas of the
world. DHS visa security officers in Saudi Arabia reviewed over
20,000 visa applications last fiscal year. This year we are on
track within the next 60 days to deploy our permanent
delegation to two locations in that country, half of whom are
trained in the local language. We are also moving in 2005 with
the deployment of visa security officers to five additional
locations, consistent with our threat-based approach.
Boots on the ground also applies to our border patrol and
various border initiatives that we are employing such as
expedited removal at parts of the Southern border, deployment
of additional border patrol agents, and the implementation of
the Arizona Border Control Initiative or the ABC Initiative.
Under the umbrella of a multi-layered system we are working
to use information more effectively, leverage Government roles
and resources, and focus our operational activities on high
priority initiatives. We know that this will require resources
allocated appropriately so that we do in fact get it right
every time.
Thank you, and now I would like to turn it over to Chief
Walters.
Chairman Cornyn. Thanks very much.
Chief Walters, if you care to make an opening statement?
STATEMENT OF THOMAS J. WALTERS, ASSISTANT COMMISSIONER FOR THE
OFFICE OF TRAINING AND DEVELOPMENT, CUSTOMS AND BORDER
PROTECTION, DEPARTMENT OF HOMELAND SECURITY, WASHINGTON, D.C.
Mr. Walters. Chairman Cornyn, Ranking Member Kennedy, I am
happy to be here today to testify about how we train our border
officers to do their jobs on the border, both at the ports of
entry and between the ports of entry.
As part of the Department of Homeland Security and BTS,
Customs and Border Protection combine the personnel and
functions of four different agencies, most of Customs, all
Immigration inspectors, Agriculture border inspectors and the
entire United States Border Patrol under one Agency, an Agency
to manage, control and secure our Nation's borders.
As CBP celebrates our second birthday, CBP is no longer an
amalgam of parts, but a single Agency united to a common
mission and a common top priority, to prevent entry into this
country of terrorists and terrorist weapons. CBP is new, our
mission is new, our priority is new. We have designed training
to fit our new organization.
CBP now recruits, hires and trains its enforcement officers
at the ports of entry as CBP Officers. Our new officers begin
their careers with a 20-day training and orientation program at
a new duty post, followed by 73 days of training at the CBP
Academy. After graduation the new officers return to their duty
posts and begin a formal program that includes 37 distinct
modules of specific training and supervised application in the
workplace of the training and the skills that they have
acquired.
Our existing workforce, with its Customs, Immigration and
Agriculture heritage and knowledge played a key role in
developing CBP's operational concepts, and the training
programs that support those concepts. We train our workforce to
become complete CBP officers. Our veteran CBP officers
participate in training that addresses the Immigration, Customs
and Agriculture functions that were not part of their former
Agency. In addition, every CBP officer, new or old,
participates in training that addresses areas where previous
training programs were weak or nonexistent, such as
antiterrorism training, fraudulent documents training, and
training how to identify weapons of mass destruction.
CBP is very active in preparing its front-line officers to
do their jobs properly. In a recent article a private research
group reported that the top 10 learning organizations in
private industry provide employees with an average of 77 hours
of training per year. CBP Office of Field Operations--this is
where our people at the ports come from, the Office of Field
Operations--by way of comparison recorded 3.3 million hours of
training for its 23,400 employees in fiscal year 2004, for an
average of just over 140 hours per employee. Top ten 77 hours
per employee per year, CBP OFO, Office of Field Operations, 140
hours of training per employee.
CBP continues to research and develop new and more
sophisticated antiterrorism training for our front line
officers. Informed by our front line officers, our supervisors,
managers, leadership in the organization and the work of the 9/
11 Commission, CBP develops and distributes new courses and
improves existing courses in detecting chemical, biological,
radiological and nuclear weapons. CBP, for example, has trained
100 of its front line officers to conduct exercises built
around terrorist and critical incident response scenarios
through FEMA's Master Exercise Practitioner Program, and these
fine officers are now distributed around the country to do just
that.
CBP has developed a counterterrorism response protocol that
tells front line officers--it takes them through the various
steps in identifying possible terrorists and what steps to
follow when they are encountered. Included in this newly
developed training are the cultural backgrounds of likely
source countries, and how to detect deception, and how to
detect and elicit responses from possible terrorist operatives.
Experienced subject matter experts and experienced role players
play an important part in this new training.
I thank the Subcommittees for the opportunity to present
this testimony today. I would be happy and pleased to take any
questions you may have.
Chairman Cornyn. Chief, I am advised you have a one- or
two-minute video you wanted to show us. This is in conjunction
with your opening statement or does this relate to some other
subject?
Mr. Walters. I believe that has been scrubbed, sir.
Chairman Cornyn. That has been scrubbed, okay.
With that, Senator Kyl, I know has to leave, and so to make
sure he has an opportunity to ask questions of the witnesses,
we will go to him first.
Chairman Kyl. Thank you very much, Chairman Cornyn.
I was just down, as I said, on the Arizona border, visited
with the new border patrol chief there, Chief Nicely, who was
very positive about the CBP program there and said that
everybody was working well together, and he was very optimistic
that it would continue to work very well. So that is just one
little field report, in any event.
I think probably most of these questions, Ms. Dezenski, are
for you, but either one of you who would like respond, feel
free. The questions that I raised earlier about the visas that
were issued in Saudi Arabia; we had a Visa Express Program
there. That is different now. Perhaps you could discuss how
that is different, how the oral interview process is different,
and the screening, and then perhaps the training as well.
In addition, I know she is going to ask, and you might as
well anticipate the question on the biometric identification
program, because I am with her, it is time to move on with
that.
Ms. Dezenski. We have made substantial progress in terms of
implementing some of the requirements under section 428 of the
Homeland Security Act, specifically the provisions to enhance a
visa security program, and let me just give you a couple
statistics that I think will give you a sense for what we have
done.
After the legislation was passed, we immediately started
working on developing a training program and developing a
system, if you will, to start moving visa security officers out
to the field, and of course the legislation was very specific
about sending people to Saudi Arabia, and that was our first
activity.
We have obtained program funding in 2005 in the amount of
$10 million. We have selected permanent visa security officers
for Saudi Arabia, and they will be deploying, as I mentioned in
my testimony, within the next 60 days. Half of that delegation
does have language training, which we think will facilitate
their activities there. We have already been working with the
consular staff in both locations in Saudi Arabia. And we
reviewed over 20,000 visa applications last year.
We are now able to delve into databases. We have biometric
information available at all of our consular locations, so our
officers are able to access that along with the state's
consular officers to be able to make a better determination on
whether to issue a visa.
So we have made some progress and we do expect that we will
continue to expand that program. We have five additional
locations identified in 2005. There are also areas that we
would consider to be high threat, so we are moving out our
folks just as quickly as we can.
Chairman Kyl. Do you want to respond to the other questions
regarding the Visa Waiver Program? And by the way, the
processing did involve oral interviews; is that correct?
Ms. Dezenski. In some cases, yes. I can get back to you on
whether that was all. I do not know.
Chairman Kyl. You do need to get back to us on the oral
interview because that was a key part of our finding, a key
problem before and something we wanted to ensure would be
resolved.
Ms. Dezenski. Absolutely.
Chairman Kyl. Can you give us the status of the Visa Waiver
Program right now, particularly with respect to any countries
of particular interest from a terrorism standpoint?
Ms. Dezenski. Absolutely. We have been undergoing a very
comprehensive review of our Visa Waiver Program countries. In
fact, within the Border and Transportation Security Directorate
we set up a special office, specifically to deal with Visa
Waiver Program reviews. We are actually finalizing that report.
It will be sent to Congress very shortly, and we did have
several countries--although we cannot go into specifics about
them--we did have several countries where we were concerned
about the number of lost and stolen passports. We were
concerned about some of the other factors that we look at when
we review countries and determine whether they should stay in
the program, so we will be making some recommendations in that
final report as to the status. But we are heartened that Visa
Waiver Program countries are now providing to us lost and
stolen passport data, which is entered into our database
systems and available to both consular officers and to our
border patrol. So we have been able to implement some
additional activities that we think are very important and are
making a difference.
Chairman Kyl. I might note that at the hearing that we held
in June of 2004, I asked the Department of Homeland Security
and the State Department to provide us with periodic updates on
the progress of the 27 Visa Waiver Program countries were
making to come into compliance with out October 26, 2005
deadline. We have received no updates that I am aware of, and I
think if you would please check on that and get back to us as
soon as possible, that would be appreciated.
Ms. Dezenski. I actually could give you a couple updates
right now, sir. We have been working very diligently, both
within DHS and with foreign governments to move towards meeting
the deadlines. As you know, last year we did ask for an
extension. At this point we think that of the Visa Wavier
countries, about two will be actually ready to meet that
October 2005 deadline. So we think there is more work to do. We
do not think this is because countries are not trying to meet
the requirements. We think there has been a significant amount
of progress, but we are running into technical issues and
operational issues that are taking some time to work through.
So we continue to work diligently. The Visa Waiver Program
countries continue to work diligently. We are moving forward as
fast as we can to meet those requirements.
Chairman Kyl. You need to get us an update in writing,
please.
Ms. Dezenski. Okay, be happy to.
Chairman Kyl. Thank you.
Chairman Cornyn. Thank you, Senator Kyl.
Chief Walters, let me ask you just a general question to
start out with about morale and conditions for our border
patrol agents generally. The USA Today reported that border
patrol agents felt overwhelmed by their job in at least some
instances. I do not know if we have a percentage reported. But
another article, this one in the Washington Post, reported on a
poll that found a high percentage of border patrol agents were
not satisfied with the tools and the training and the support
they received.
I would just, by way of anecdote, give you the benefit of
my observation in a small portion of the border that we ask our
border patrol agents to patrol, and what they tell me is they
feel out-manned and under-equipped. While they do have
technology like ground sensors, cameras and the like, that in
the event an intrusion is identified that there is a very good
chance, in other words, and no doubt in most if not all cases,
they are not able to assure that they apprehend every single
person that tries to come across the border. Is that as a
result of a lack of technology, a lack of training, that they
do not have the equipment they need, or that they are simply
overwhelmed by the numbers that are trying to come across our
borders?
Mr. Walters. We are trying to give them all the tools that
they need and train them up, and we do spend a great deal of
time and energy preparing them for that. This is a classic
example. I cannot think of any year since 1975, when I came in,
where there were fewer aliens to apprehend than there were
border patrol agents to apprehend them, and that is still the
case. But I like to think, and I think we could probably give
you a more involved answer or more succinct answer on paper,
but my instincts tell me that we have never paid more attention
to our borders than we are paying to those borders right now,
that if we are not quite there yet, we are on the way. We have
increased the number of border patrol agents. We have increased
the technology on the ground. We have increased the amount of
training and the kinds of training we are giving. We have
changed the entire organization, including the border patrol,
to focus on preventing the entry of terrorist weapons and
terrorists first, as the first priority of all their
traditional missions.
So, yes, I can understand. I am a member of the club that
understands why border patrol agents feel like they are
overwhelmed, and we have not given them everything they need,
but we are working it, and I think we are energetically pursing
it.
Chairman Cornyn. Chief, just by way of follow up, let me
ask you what is it that you think that our border patrol agents
need that they do not have that will allow them to successfully
detect and prevent incursions across our border?
Mr. Walters. Well, they need a good mix. They need a good
mix of the technology. They need a good mix of training. They
need a good mix of border patrol agents and all the things that
go with it, the support, the buildings, and they need the work
of this body to help them with the laws and regulations that
inform what they do, enable what they do on a border if it take
place.
Chairman Cornyn. My understanding is that once detained,
there are criminal background checks and other checks performed
on these people that are coming across, and if they are not
wanted on criminal charges or have a criminal record, that they
are eligible for what Senator Feinstein has called the catch
and release program, in other words, to report back for a later
hearing. Is that generally accurate, what I have just stated?
Mr. Walters. It is true that we do a record check on every
individual on the border patrol side; every individual that the
border patrol catches has gone through some sort of a two-print
or a ten-print, and we get some sort of a feedback record on
that unless they are a new entrant of course, this is the first
time.
I forget the rest of your question. Is that responsive?
Chairman Cornyn. The problem is, what I was getting at,
while you do screen for people with criminal records or
criminal histories and perhaps those who have tried to make
repeated trips across and been caught, the vast majority of
people that you do catch, the border patrol catches, are
eligible for a release program to return for a later hearing;
is that not correct, sir?
Mr. Walters. It is true that of all the people we catch we
do take a lot and give them a voluntary return back to
contiguous territory like Mexico. But on the other hand, their
record has been taken and then the next time they get caught we
will know if they came in once or twice. This helps us discern
whether this is a routine traveler coming across to work the
fields or someone who is going to try and enter the United
States to do us harm. There is a difference between those and
we are trying to discern that difference, because we can expect
to apprehend and have apprehended close to a million or
slightly over a million aliens every year.
Chairman Cornyn. My understanding--and this is my last
question for this first round--is that while the border patrol
does apprehend on the order of a million people a year, that
there may be as many as another half million that are able to
come across undetected. Do you agree with that figure or do you
dispute it? Do you have another figure that you believe is more
accurate?
Mr. Walters. I do not have a substitute figure for that. I
think everyone is entitled to their own view on it. Statistics
indicate that it is a fairly large number, but we just do not
really know, and I do not personally have any better
information than what you have seen, sir.
Chairman Cornyn. Thank you, Chief.
Senator Kennedy.
Senator Kennedy. Thank you.
Ms. Dezenski, let me ask you, on these visas, for example,
in Saudi Arabia part of the problem, going back to 9/11 is that
the Central Intelligence Agency was not working with the
Immigration Service. They were not sharing the list. They
thought if they shared the list that they would lose their
sources on this.
Now in the development of the watchlist, it is working now.
CIA is talking, FBI is talking, the watchlist is updated every
single day. Tell me what is happening out there just quickly if
you could.
Ms. Dezenski. Absolutely. Senator, it has gotten much
better. A lot of those databases that you mentioned have been
integrated primarily through the US-VISIT process as we have
begun the collection of biometrics. That is also combined with
terror watchlist information, immigration information, sources
from all over the Government, and that is absolutely the right
way to do things.
Senator Kennedy. When is your watchlist upgraded? Is it
sort of daily now?
Ms. Dezenski. It is, it is.
Senator Kennedy. It used to be a couple of weeks or three
weeks.
Ms. Dezenski. It is updated on a very regular basis. It is
daily. And the information comes from different sources within
the Government. We get some information from agencies within
the Department. We get other information from the FBI. So all
of this is compiled and utilized.
Senator Kennedy. And there is harmony with all the
agencies, the FBI, the CIA and others? How would you
characterize?
Ms. Dezenski. I think it has gotten better.
Senator Kennedy. Better, well that is----
Ms. Dezenski. I do not know if I would go as far as saying
that everyone is in perfect harmony, but we have made some
progress and we will continue to.
Senator Kennedy. Secretary Chertoff is going to make sure
that they are.
Ms. Dezenski. absolutely.
Senator Kennedy. Let me ask you, just on the timing--again
I want to move along--on the visa waiver. The two countries I
understand is Japan and Australia are the two countries. There
may be others. But how are we doing? I mean if we are going to
have these other countries, if we set the deadline, Japan and
Australia evidently have indicated they can meet October of
2005. Where are we, just quickly on that, being able--if they
do develop it, are we going to have the sense and the ability
to be able to read these and to be responsive?
Ms. Dezenski. That is certainly our intention. We are well
aware of the October 2005 deadline, and we have----
Senator Kennedy. What is your estimate now? This has been a
continuing process, and we know that you--what is your own kind
of sense about it? Do you think you are going to make it within
a couple of months or what is the----
Ms. Dezenski. I think it is going to be difficult to make
October 2005. We are probably looking at some point in 2006. I
hate to be more specific than that, but we could certainly
follow up with something in writing.
Senator Kennedy. Fine, okay. I might come back to you just
sort of as a general--it would be useful, if the Japanese and
the Australians are able to do this, whether they are sharing
it with these other countries, their information, or how they
are able to try and do this.
Mr. Walters, just on the training programs, I was trying to
write down as you were reading the number of hours. I heard 140
hours a couple of times, and I was looking at 40-hour weeks, 3-
1/2 weeks. What is the situation? You train these people. This
is an anti-terrorism passenger processing, agricultural
fundamentals. You know, we have problems in terms, as we heard
from the former Secretary of HHS, of the dangers. You have
immigration documentation examination, customs cargo
processing, let alone the weapons of mass destruction. How in
the world are we going to be able to get all of that done? I
went to 16 weeks basic training in the infantry just to learn
how to fire some weapons, but we did not have that kind of a
complexity I do not think that these agents have. Can that
really be done in that short a period of time?
Mr. Walters. We give ourselves that in basic training of
course. What we are trying to do, and the goal that I train to,
is to build a complete CBP officer. And so our new recruits,
the first batches have slightly less than 18 months service,
and we are building them towards becoming a complete CBP
officer. That will take time. It takes years and experience.
From my own experience, I was not really a very good border
patrol agent until I had about 7 years under my belt.
Senator Kennedy. In terms of the freshmen customs or border
agents, what is their basic training before they are out?
Mr. Walters. Their basic training is 73 training days at
the border patrol--I am sorry--at the CBP Officer Academy.
Senator Kennedy. This is a raw recruit, get into there and
then out on the job. So that is how many--just give it to me
quickly because my time is almost up.
Mr. Walters. What is it that you----
Senator Kennedy. The question is--I have my wife's nephew
over in Mosul. He is a tail gunner on a striker. he had 12
weeks at Fort Benning, 4 days at Fort Lewis to get his
equipment and is in Mosul as a tail gunner. I am asking you how
many weeks for just a raw recruit to be on the border patrol
down on the border?
Mr. Walters. For a CBP officer, they have 20 days in their
port before they go to the academy, and then 73 days, which
usually works out to be about 14 weeks or training at the CBP
Officer Academy. Then they go out to the CBP duty post and they
get modules of training one after the other, sir.
Senator Kennedy. I will come back because I just want to
ask you a final question. My time is up. I would like to get a
little more, go into that a little bit more.
Senator Kennedy. I have heard some disturbing reports of
vigilantes planning to converge in Arizona in April to start
making arrests of suspected immigrants. This is obviously a
potential dangerous situation. Are you familiar with this at
all?
Mr. Walters. Yes, I am, sir.
Senator Kennedy. And you are monitoring this? Is there
anything we ought to know? Is there anything you ought to tell
us about?
Mr. Walters. I do not have anything special to offer. I
just want to remind the Committee that----
Senator Kennedy. I mean if it is classified or whatever,
you can do whatever way, you can tell the Chair.
Mr. Walters. I will be glad to come back to you with that
information.
Senator Kennedy. Could you give us a report on that?
Mr. Walters. I can certainly do that.
Senator Kennedy. Please? I would like to share that with
the members of the Committee. My time is up.
Thank you, Chair.
Chairman Cornyn. Thank you.
Senator Feinstein. Yes or no answer, please. Are we still
catching and releasing OTMs, other than Mexicans?
Mr. Walters. Yes.
Senator Feinstein. Thank you. I think that points out
something very clear, and that is that coming over the
Southwest border is clearly the way somebody is going to
penetrate the country because they are caught and they are
released, and there are 48,000 this past year. So I would just
leave the record with that.
Is it still the policy that a fraudulent or stolen passport
is returned to the individual?
Ms. Dezenski. No, it is not.
Senator Feinstein. What is the policy?
Ms. Dezenski. The policy is to take those documents at the
point of entry, which we have been doing since January.
Senator Feinstein. And that is 100 percent of the time?
Ms. Dezenski. That is my understanding.
Senator Feinstein. What happens to the individual?
Ms. Dezenski. Well, I think it depends on what might be
associated with that individual. If they are coming up as a
hit, they may go into secondary. If they are not coming up as
having anything of interest to us, then they may be able to
leave. It just depends on whether there is reasonable suspicion
to keep that person.
Senator Feinstein. I appreciate that. But it seems to me in
this day and age that use of a fraudulent or stolen passport
should be a ``go to jail card.'' And I am introducing
legislation to make it an aggravated felony simply to get
people to pay attention to it. I think we have really got to
put a stop to the use of fraudulent and stolen passports. What
I have learned is these passports are very cleverly
manipulated. They are stolen by large numbers, which only means
they are going to be used for illegal entry into the country
one way or another, as are international driver's licenses,
again, stolen in large numbers, Geneva Convention travel
documents, again, stolen in large numbers.
I think it is a very serious problem. I would call your
attention to pages 25, 26 and 27 of the April 2004 OIG report
on the security implications of the Visa Waiver Program.
May I ask if you have both read these reports?
Ms. Dezenski. I have read them, yes.
Mr. Walters. I have not.
Senator Feinstein. It might be a good thing to read. They
are very informative reports, and it almost seems to me that
this report or this process of investigation should be carried
out every year because it is really the OIG that goes through
on the other-than-Mexicans permeating the border, and lists the
countries and the numbers. If it were done on an annual basis I
think it would give you a very good indication of the countries
where this is really a problem. In any event, I intend to ask
that it be done.
Now, let me ask you about the biometric passport deadline.
Last year, as I mentioned, the administration came and asked us
to extend by 1 year the biometric passport deadline for the
Visa Waiver Program. Since you could not meet the deadline of--
not you, but the Departments could not meet the deadlines of
October 26, 2004 for complying with the 2002 Enhanced Border
Security and Visa Entry Reform Act, are you going to ask for
another extension?
Ms. Dezenski. We have not made a formal determination on
that at this time. But as I stated earlier, we are working
through a lot of technical and operational issues right now. We
are working through them as quickly as we can, and our
intention is to come as close to that deadline as we can.
Senator Feinstein. You mean to get the system up and
running before that deadline? Is that your goal?
Ms. Dezenski. Absolutely, yes. Whether we will make that is
dependent on how quickly we can get through these challenges,
these remaining challenges, procurement challenges,
operational, technical. We are still testing readers.
Senator Feinstein. Could you tell me what the problem is or
tell us what the problem is?
Ms. Dezenski. Absolutely. It is really on a number of
fronts. We are dealing with new territory here in terms of
requirements to put readers at all points of entry. We need
readers that will be able to recognize documents from many
different countries.
Senator Feinstein. Let me stop you there. How many points
of entry? The OIG found that there were many points of entry
where this program was not in place.
Ms. Dezenski. I cannot give you the exact number, but I
would be happy to follow up with that.
Senator Feinstein. I would appreciate that very much.
Ms. Dezenski. Sure.
Senator Feinstein. And what else? So it is readers at the
points of entry. So the bottom line is that the points of entry
are not covered. Therefore, there is no way of knowing about
the passport or whether it is biometrically----
Ms. Dezenski. Senator, there are other issues with
countries not being able to manufacture and distribute the
machine-readable biometric passports within the time frame, the
current time frame as well. So along with the concerns that we
have internally, and again, we are moving as quickly as we can
to get those deployed, there are also concerns coming forward
from the waiver countries with meeting the deadline for
actually putting the passport out.
Senator Feinstein. I know this is a difficult area because
I know countries do not want to comply, but if you would send
us a list of those countries that are not in compliance or have
refused to comply, I think the question comes then whether they
should continue under the Visa Waiver Program. I know they say
tit for tat, that they want to do the same thing to the United
States. I mean my view in this world today is that we ought to
know who is coming into our country with reasonable certainty,
and I do not think that is too much to ask of a Visa Waiver
country. And we also want to know when they leave.
So let me ask this question. Do we know when visa waiver
individuals leave the country?
Ms. Dezenski. No, we do not, because we have not completed
the US-VISIT exit portion of the system.
Senator Feinstein. We have 13 million people coming in. We
do not know whether they ever leave or no. And although they
are from friendly and very often closely allied countries, it
is not hard, and we saw where Richard Reid, Padilla, others,
used the Visa Waiver Program to come into this country, and
there is no way of knowing if the individual ever leaves yet.
Thank you very much, Mr. Chairman.
Chairman Cornyn. Thank you, Senator Feinstein.
I have just a couple more questions for Secretary Dezenski,
and I am afraid, Senator Feinstein, the more questions you ask,
the story just does not get much better. It seems to reveal the
depth and the breadth of the challenges that we have.
My question, Assistant Secretary Dezenski, has to do with
the different ways we treat different visitors. For example,
the Border Security Staff Report identified the visa length of
stays as a potential security issue. They compared the length
of stays granted to business travelers, visa waiver
participants and tourists. Can you explain why business
travelers receive stays tailored to their purpose, visa waiver
participants receive 90 days, and tourists automatically
receive a six-month extension even if their trip is for only a
few weeks?
Ms. Dezenski. With respect to the first category of Visa
Waiver Program country participants, we have a reciprocal
agreement that is actually in statute. It is a 90-day
reciprocal agreement on the stay, so that explains how we have
that category and why it is different. For the B-1 business
visa it is tailored to the amount of time that is reasonably
allowed for that person to complete their business in the U.S.
With regard to the B-2, it is valid maximum admission actually
for 12 months, but it is generally admitted for 6 months. It is
up to the admitting officer to make the final determination in
those categories. We do afford that to our border patrols, to
be able to make that decision based on other information that
they might have.
Chairman Cornyn. Would it make sense to you that we ought
to have a uniform policy tailoring the length of a visa to the
stated purpose for which someone enters the country, as opposed
to arbitrary deadlines extending months and even a year or more
into the future?
Ms. Dezenski. I do think it is something that we need to
look at as part of a broader visa policy review within the
Department. The question has come up many times and I do think
it is something we need to take a look at.
Chairman Cornyn. My understanding is that roughly 40
percent of the illegal immigration in the United States now
comes from people who have entered the country legally, but
have just merely overstayed their visa. I believe you answered
Senator Feinstein that we have no means, that is zero means of
identifying where those people are or actually making sure that
they leave the country when their visa expires. Is that
correct?
Ms. Dezenski. It is, but that is the other part of the US-
VISIT program. It is an entry program and an exit program, and
now our focus is on building the exit piece of the system
because we recognize that in fact that has been a vulnerability
and it needs to get fixed. So that really is a focus over the
next 12 months, to get the exit system up and running at all
ports of entry.
Chairman Cornyn. Well, if I can press you just a little bit
on that point. US-VISIT, the exit feature of US-VISIT, when it
is implemented--it is not yet implemented--will allow us to
know when somebody leaves, right?
Ms. Dezenski. That is correct.
Chairman Cornyn. But for somebody who does not leave, it is
not going to tell us where they are or how to find them, will
it?
Ms. Dezenski. No, that is a very difficult problem. I mean
we have tried some things at the Southern border with our
border crossing cards, where we actually have an RFID
technology in the travel card, which is one way of being able
to validate ID and use a little bit of technology to try to do
a better job at it. Once visitors are in the country if they
are not exiting at any given time, it seems like we would have
a big problem on our hands to try to locate millions--
potentially thousands of people I would think. So we need to do
a better job on the up-front piece of the process to make sure
that when we are issuing visas, for example, that we are doing
so for people who have legitimate business and intend to leave
during their stated time.
Chairman Cornyn. I agree with you. We need to do a better
job of making sure people leave when their visa expires. But
the problem is the same for people who come into the country
legally and overstay their visa, thus making their presence
here illegal, and those who come in illegally in the first
place, right? Estimates of somewhere around 10 million people
are illegally in the United States and the fact is we do not
know where they are, and we do not know how to enforce the law,
and deport them back to their country of origin even if we
wanted to. Is that a correct statement?
Ms. Dezenski. I think you have accurately characterized the
problem. I think it is a balance for us though as the
Government, to be able to secure the borders and have an open-
door policy. Sometimes people overstay their visas for reasons
that are completely legitimate, they are in the hospital, they
missed their flight. There are lots of real-world reasons. Now,
that is not to say that people should be overstaying their
visas. We want people to adhere to those requirements, but I
think we need to make sure that we have a balanced process.
Chairman Cornyn. I am sure you are absolutely right that
there are some people who cannot help but overstay their visas,
but I would suggest that it does not approach 10 million in
number. But we will get to that, perhaps, at our second hearing
we have scheduled on April the 6th, where we are going to talk
more about interior enforcement and those issues.
Senator Kennedy.
Senator Kennedy. Just quickly on the exit. That is true for
the visa waiver, but it is also true on granting the visas in
any event, is it not? Do we not have this problem if it is a
visa waiver country or it is non-waiver country. I mean it is a
general kind of problem, is it not?
Ms. Dezenski. Yes.
Senator Kennedy. I thought that at least in some areas when
you get the visa you had to demonstrate, you know, either that
you had a return ticket or that you had the resources to be
able to return. I mean these people and the places where they
are granting the visas, they just do not do it out of the
goodness of their heart, do they?
Ms. Dezenski. You are right. There are some requirements
when people go through the visa issuance process. A return
ticket sometimes can be a good indicator, sometimes it is not.
So there are some limitations there.
Senator Kennedy. Thank you.
Chairman Cornyn. Senator Feinstein?
Senator Feinstein. Just a comment. The problem with all of
this is there is enormous pressure from commercial sources, you
know, to allow in a sense a lax system, that people can come in
and go out at will, and yet that becomes the soft underbelly
because it becomes easy to use a fraudulent passport or a
stolen passport, and the other countries in the Visa Waiver
Program, if we do it to them, they will do it to us. I mean my
view of that is everybody should do it in this day and age. But
that is just me.
I would like to ask this question. You mentioned that since
January the passports in all cases are removed from the
individual. I assume the individual is let go, or is allowed to
go home. No?
Ms. Dezenski. No. It depends. I mean normally if you have--
and Chief Walters may be able to add to this, but if our border
agents are detecting a fraudulent document, that is usually
enough to get you into secondary. And then when you go into
secondary, there is a lot more work done in terms of
understanding what the potential threats might be, checking
additional databases, et cetera. So the idea that people are
presenting fraudulent documents and then simply walking away, I
think is probably not the right characterization.
Now, once we proceed with secondary, there may be grounds
for additional action, there may not be.
Chief Walters, do you have anything to add?
Senator Feinstein. Well, certainly they would not walk
away. I would think they would be deported. I mean you are not
going to let somebody come in with a fraudulent passport,
remove the passport and let them go into the country, right?
Mr. Walters. In fact, you are correct, if I may.
Senator Feinstein. Please.
Mr. Walters. There are codes in the immigration laws that
allow for us to prosecute for fraudulent document entry using a
fraudulent document or using fraud to enter the country. At the
very least the person that perpetrates the fraud loses
potential immigration access to the United States for years at
a time, and I would have to get back to you on what the exact
code is, but it is not without penalty.
Senator Feinstein. It is not without?
Mr. Walters. It is not without penalty completely. There
are some certain parts of the code that will allow us to
prosecute, and we do find that grounds. We do take it in front
of the assistant attorney ask for a prosecution on it when we
can.
Senator Feinstein. We have draft legislation of a bill
which I would like to ask my staff to show both of you and get
your input on, if you would, please. But I assume you do not
let anyone come into the country with a fraudulent or stolen
passport; is that correct?
Mr. Walters. That is correct.
Senator Feinstein. Then most would then be deported or
would go back to where they came from. What do you give them to
go back with if you take the passport?
Mr. Walters. We have a letter. We actually take a Xerox
copy of the passport, retain the passport for ourselves and do
a letter. There is a technical term for that letter that
escapes me at the moment. But this letter goes with the
individual back to his home country whether it is for an
expedited removal case or after a prosecution. Eventually they
go back and we use this letter to transfer them back to their
country of origin.
Senator Feinstein. Would it be possible for you to give us
some statistical analysis of that program, say in the first 6
months since you have been doing it since January and it is now
March, say by July, that we might have some analysis of how
many passports you have taken; how many people have been tried
or had charges brought against them; how many go to jail; how
many are let loose, because I bet there are some; and how many
go back?
Mr. Walters. As I understand the question you would like a
statistical report from January when this new policy went into
effect and show the effects of that policy and how many were
prosecuted, how many went back, and what we did with----
Senator Feinstein. Right. In other words, take a look at
the first 6 months, so give you a lot of advance notice so it
will not be a problem to set it up and do it.
Mr. Walters. Yes, ma'am.
Senator Feinstein. I appreciate that very much.
Mr. Walters. Yes, Senator, we can do that.
Senator Feinstein. Thank you.
Thank you very much, Mr. Chairman.
Chairman Cornyn. Thank you, Senator Feinstein.
Secretary Dezenski and Chief Walters, thank you very much
for appearing here before us today. We know you were asked some
tough questions, and I think it reveals the scope and nature of
the challenge that lies before all of us. We certainly
appreciate your service. Thank you very much.
Ms. Dezenski. Thank you.
Mr. Walters. Thank you, Mr. Chairman.
[The prepared statement of Ms. Dezenski and Mr. Walters
appears as a submission for the record.]
Chairman Cornyn. If we could have our second panel of
witnesses step up here momentarily. If you will forgive me, I
am going to start introducing you while we are clearing a place
for you to sit.
We are pleased to have a distinguished second panel today,
and I want to thank them as well for their appearance.
Doris Meissner currently serves as a Senior Fellow with the
Migration Policy Institute. Notably she served as the
Immigration and Naturalization Commissioner from October 1993
to November of 2000 during the Clinton administration, and has
extensive immigration experience, including reforming the
Nation's asylum system, creating new strategies to manage U.S.
borders in the context of open trade, and improving services
for immigrants.
Also with us this afternoon is Janice Kephart, a Senior
Consultant for the Investigative Project. She has recently
served on the National Commission on Terrorist Attacks Upon
America, otherwise known as the 9/11 Commission, where she
served as counsel on the immigration, nonimmigrant visas and
border security team. She is a key author of the 9/11
Commission Staff Report, ``9/11 and Terrorist Travel,''
released in August of 2004. This is only one of two staff
reports published by the Commission and the only one to be
published in print, and serves as the basis for our hearing
today.
Welcome to both of you, and we are pleased to have you here
with us. Again, if you would do what sometimes we forget to do,
and that is turn your microphone on when you speak so we can
all hear you, and we would like to give you a chance to make
any opening statement you would like.
Ms. Meissner, we would be happy to start with you. thank
you for being with us.
STATEMENT OF HON. DORIS MEISSNER, FORMER IMMIGRATION AND
NATURALIZATION COMMISSIONER, AND SENIOR FELLOW, MIGRATION
POLICY INSTITUTE, WASHINGTON, D.C.
Ms. Meissner. Thank you, Mr. Chairman and members. Thank
you for inviting me to participate.
You have designated two issues for this hearing, training
and length of admission on visitor visas. I will focus on the
second question, the length of admission on visitor visas.
The background for what I call the six-month policy dates
from the early 1980's. The policy was established at that time
as part of a broad effort to better manage the adjudications
workload of the Immigration and Naturalization Service. It is,
as you probably know, a change that is in regulation, it is not
statutory, and it arose from a survey that was done at that
time of the workload in the district offices around the
country.
We learned that in looking at the adjudications workload in
those district offices, the largest share of the work in those
offices was extensions of stay, applications that people who
were here on visitor visas were making to stay here longer than
the time that had been designated by the inspector at the port
of entry.
So in looking at that workload and trying to understand why
there were so many extension of stay applications being made,
we found out several things. First of all, that the inspectors
were basically making decisions that were arbitrary and
inconsistent around the country with regard to people's stay.
Secondly, that almost all of the extensions that were being
requested were being granted by the district offices. And
finally, that typically the norm fell at the six-month period,
that people were given 6 months to stay and that largely met
the needs that they were articulating to the examiners in the
district offices. So we set up 6 months as the norm.
The result of doing that was that it eliminated this
situation of one part of the Agency, the inspectors at the
ports of entry creating a workload for the examiners in the
district offices. It freed up very high-skilled or expert
resources of examiners in district offices to focus on the most
sensitive of the adjudications, which are the adjustments to
permanent residents and the naturalization applications, which
really go to the heart of the integrity of the immigration
system, and of course it does not or did not preclude
inspectors from designating less than the six-month period. It
was to be a guideline.
I think in the years since, it has been viewed as a
successful policy, but it was developed 20 years ago, and that
is or course a long time ago, not only in years but in
experience, and I am unaware that there has been any serious
review of the policy in the time in between. And even if we had
attempted to do a serious review of the policy, we would not
have had the data available to reach any sound conclusions.
So given the fact that it is old, and given the fact that a
lot has changed since most particularly 9/11, I think it is
absolutely appropriate to review the policy. Moreover, we have
now the tools to begin to understand a little bit more how
these things are working, most particularly the US-VISIT
program. When the exit portion of the US-VISIT program actually
is put into place, we will be able to understand how a policy
like this works, what its implications are.
At the same time, I think it would be a serious mistake to
rush to judgment and to simply make a linkage between the 6-
month policy and vulnerability to terrorism. We do not have any
information really that tells us that one leads to the other.
The critical thing is that we start to understand this and
recognize that it needs to be analyzed.
Now, in analyzing it, there are a couple of things that are
very important. First of all, there are enormous workload
implications to changing a policy like this. If you look at the
numbers, we granted 28 million visas in 2003, non-immigrant
visas. I have given you the math in the statement, but the
bottom line is that almost a third of those visas of that 28
million are subject to this 6-month policy or guideline.
In addition to that, of course, given those numbers and the
uses of the B-2 visa, there are a huge range of stakeholders
and very compelling public policy interests that are
encompassed in that B-2 visa grant where the 6-month policy
applies. I think a very good illustration of that is
regulations that were put out in the spring of 2002 to try to
reduce the 6 months to a 30-day policy. There was an enormous
storm of opposition to those proposed regulations, and they
have been set aside.
So changing it really requires doing some homework, and in
doing that homework, the critical question, of course, is: Is
there any relationship between 6 months or 3 months or 30 days
and a vulnerability to terrorism? We do not know the answer to
that. I think that the systems are in place that can begin to
answer that, but in addition to that, a whole range of other
very important changes have been made that do move us in the
right direction, that have been proven to be effective in
thwarting terrorism. They are not complete. They need to be
more--they need to be finished. But there is an agenda that is
moving us in the right direction, and that should serve us as
the tools to learn and understand whether something like the 6-
month policy in addition would need to be shifted.
Thank you.
[The prepared statement of Ms. Meissner appears as a
submission for the record.]
Senator Cornyn. Thank you very much.
Ms. Kephart, we would be glad to hear from you.
STATEMENT OF JANICE L. KEPHART, FORMER STAFF COUNSEL FOR THE 9/
11 COMMISSION, AND SENIOR CONSULTANT, THE INVESTIGATIVE PROJECT
ON TERRORISM, MOUNT VERNON, VIRGINIA
Ms. Kephart. Yes, thank you. Thank you for holding this
hearing and giving me the opportunity to discuss terrorist
travel with you today. On a personal note, it is an honor for
me to be back before the Committee that gave me my start in
terrorism and border security. It is also an honor to share a
panel with Commissioner Meissner, who held one of the most
difficult jobs in this city for over 7 years and did so with
dignity and dedication.
I would like to submit my written testimony into the
record, if I may.
Chairman Cornyn. Certainly. Both your written statements
will be made part of the record, without objection.
Ms. Kephart. Thank you.
We are all here today because September 11 taught us an
invaluable lesson: that border security is national security.
Effective border security is perhaps our best hope of
preventing another terrorist attack on American soil.
From the outset, let me make it clear that I share the
conviction that immigration is a potent asset to our strength
as a Nation. Achieving full integrity of our border strengthens
us, facilitating legal immigration of the most talented and
motivated people in the world, while lowering the risk of entry
by those who seek to do us harm.
Foreign terrorists carefully plan their attempts to enter
the U.S. based on a relatively sophisticated understanding of
our border system. A CIA analysis described in our staff report
stated that, ``A body of intelligence indicates that al Qaeda
and other extremist groups covet the ability to elude lookout
systems using documents with false identities and devoid of
travel patterns that will arouse suspicion.''
The 9/11 Commission border security investigation found
numerous examples of such planning, several of which I provide
in my written testimony, and many more of which are provided in
this book, in our staff report.
As the Commission staff monograph on terrorist travel
points out over and over again, the 9/11 terrorists exploited
vulnerabilities from visa issuance to admission standards at
our ports of entry, to our immigration benefits adjudication
system. Let me give you two examples which I believe are still
relevant today.
As far as I am aware, critical intelligence on terrorist
travel indicators is still not being declassified and
distributed to front-line officers three and a half years after
9/11. One specific indicator which was present on five
passports used by three of the 9/11 hijackers would, without a
doubt, keep al Qaeda terrorists out of our country if
distributed to consular officers and immigration inspectors. It
remains classified today.
Second, tourist visas automatically confer a 6-month length
of stay which likely exceeds the needs of most tourists and is
something we certainly need to discuss and vet. By comparison,
tourists from visa waiver countries receive only 3 months.
A question I was constantly asked while on the Commission
was whether my team had come across any evidence of terrorists'
illegally entering the U.S. While the hijackers chose to
acquire visas and enter legally, other foreign terrorists have
entered the U.S. illegally. For example, Abdul Al-Marabh, a
likely al Qaeda member who told authorities he had often
crossed back and forth over the Northern border illegally, was
finally caught in the back of a tractor-trailer crossing the
Northern border around February 2001. During his time in the
U.S., he had received five U.S. driver's licenses in 13 months,
including a commercial driver's license and a permit to haul
hazardous materials.
Mahmoud Kourani, a known Hizballah operative now in Federal
custody on terrorism charges, crossed the Southwest border in a
car trunk in June 2001. He goes to trial in Detroit in April.
Political asylum and naturalization are the two immigration
benefits most rampantly abused by terrorists in my studies. I
have found 22 separate incidents of indicted or convicted
terrorists who abused our political asylum system. Nine of
these terrorists did so after the 1996 revision of our
immigration laws. Members of Hamas, al Qaeda, and Egyptian and
Pakistani terror groups have all used claims of political
asylum to stay longer in the U.S.
As the Committee knows well, the 9/11 hijackers' use of
American identification documents has been widely discussed in
recent months. The hijackers acquired a total of 34 U.S. IDs,
13 driver's licenses, two of which were duplicates, and 21 USA-
or State-issued ID cards. The ease with which the 9/11
hijackers acquired Government-issued IDs highlights the
importance of verifying identities and immigration status when
issuing those documents. It is also valuable to emphasize the
deterrent effect on criminals and terrorists alike if we
tighten the vetting procedures and security features associated
with these cards.
We know that terrorists are creative and adaptable. Yet we
have the ability to counter them. Our front-line officers are
talented, and they are eager to do everything they can to
protect this country. They are our border system's biggest
asset and our best weapon against terrorist travel. But they
need better tools--information, resources, and the ability to
enforce the law better within a departmental structure wholly
supportive of their mission.
My written testimony lays out a series of recommendations
purely for your consideration that address these issues, which
I believe can make our borders more secure and more efficient
than ever before.
Thank you.
[The prepared statement of Ms. Kephart appears as a
submission for the record.]
Chairman Cornyn. Thank you, Ms. Kephart. We will have 5-
minute rounds, and as long as you and members of the Committee
want to stay here and ask questions, but hopefully we will not
detain you long.
Ms. Kephart, in your testimony you talk about the fact that
terrorist indicators on a passport are sometimes classified and
in many instances, whether classified or not, are not
communicated to the people most in need of that information
when determining whether to issue a visa or not.
Did you find a valid reason to keep that kind of
information classified? Or is there a better way that that
could be handled that gives the required personnel access to
what they need to make a good decision but at the same time
maintain the secrecy of the document so that the bad guys
cannot necessarily know what it is we are looking for?
Ms. Kephart. Well, I can tell you that we tried very hard
for our staff report to get the, quote-unquote, terrorist
indicators and the fraudulent manipulation declassified for the
staff report so that the public could know. It was very odd to
me, while I was working on the Commission, that I actually had
access to more information about terrorists' travel and
terrorist indicators than our front-line officers did.
The indicator that I referred to in my testimony, both oral
and written, is one that is extremely obvious. If you told a
front-line officer what it is, he could check for it. And I
think that is probably all I can say about it in open testimony
here. But in terms of getting that to front-line officers, we
believed, me and my colleagues, my other four colleagues who
helped produce the staff report, that it was something that
could be declassified.
So I guess I do not really have terms to say what we need
to do to get it declassified because I think it probably should
be.
Chairman Cornyn. Well, of course, we have been talking
today about people who at least try or at least appear to try
to come into the country legally but, nevertheless, manipulate
the process to enter into the country and to do us harm. But I
think as several others have noted, terrorists could try to
come in the way that the 9/11 terrorists did using fake
documents and through ostensibly a legal process, or they can
try to come in across one of our unprotected borders without
any pretense at trying to come in legally or the like.
I continue to be concerned about the fragmentation of
responsibilities when it comes to both border protection and
immigration, and I have noted, Ms. Kephart, with interest your
recommendation that the U.S. Government create a Department of
Immigration and Border Protection separate from the Department
of Homeland Security. Could you explain your justification for
that recommendation, given the fact that we just moved it from
DOJ to DHS in 2002?
Ms. Kephart. I understand that is a big one to swallow
under the current circumstances when we just created a new
Department of Homeland Security. But the fact of the matter is,
as Commissioner Meissner--and I would love to hear what she has
to say about this as well.
Chairman Cornyn. I am going to give her a chance.
Ms. Kephart. Our country was based on immigration. We now
have a situation where border security is considered a national
priority. What we have had in the past is Commissioners
dedicated, like Commissioner Meissner, who didn't have direct
access to the President and did not, even more importantly,
perhaps, have direct access to the intelligence they needed to
make good decisions.
By creating a separate department where you focus wholly on
immigration and border security, we can have policies created
by a Secretary who focuses completely on an incredibly complex,
politically and legally complex set of laws and policies. We
have right now over 40,000, I believe, employees in
immigration. That far exceeds at least five departments that
exist in the Federal Government already. There is enough
there--it is a big distraction for the Secretary of DHS to deal
with the very intricate and delicate process of immigration.
And I think if it was pulled out separately, it would be
perhaps helpful to our policies and our rules on immigration,
help us enforce our laws better.
Chairman Cornyn. Ms. Meissner, I did ask Secretary
Chertoff, after he was confirmed, what his plans were to
appoint someone to succeed Asa Hutchinson in the Department of
Homeland Security, and he advised me that they are looking at
organizational issues before moving on to that. But do you have
any reaction or any advice you would like to give either us or
Secretary Chertoff or reaction to perhaps Ms. Kephart's
suggestion of the creation of a new Department of Immigration
and Border Protection?
Ms. Meissner. I cannot resist saying this is deja vu all
over again. These issues, you know, have been debated and
debated.
If you were making the Government over, you would not have
it be this way where immigration is concerned. But we are not
making the Government over. And we have, as you said, gone
through this enormous shift now just within the last 2 years. I
think that it would be--I think it is just impractical and
unwise to think about further upheaval where this kind of a
massive structural change is concerned.
That being said, I also believe that there are a set of
what I think of as second-generation changes that need to be
made within DHS in the immigration arena in order for things to
work more effectively. You know, the original idea obviously
was to separate enforcement and service, and I see now that
there is discussion about CBP and ICE being reconnected. And I
think that is probably worth considering because I think one of
the major problems right now is fragmentation. But I think that
it is much more important in DHS at this point that there be
more capability at the department-wide level to deal with
immigration where policy is concerned. And I think that the
best--I have made a suggestion in my testimony that the best
solution I have heard is to establish an Under Secretary for
Policy office in DHS.
The Secretary and the Deputy Secretary in DHS just do not
have department-wide staff capability to do their work. And if
you take the model at HHS, for instance, that is not such a
dissimilar agency, of a major Under Secretary for Policy
position that can advise the Secretary on all of these
different things, immigration would be one of the key issues in
that portfolio. There would have to be analysis done, and you
could deal with issues like this. This B-2 visa issue, for
instance, is the kind of an issue that is very unlikely to come
up from the constituent bureaus because they only all have just
a piece of it. There needs to be overview.
Chairman Cornyn. Thank you very much.
Senator Kennedy?
Senator Kennedy. Thank you very much, and I welcome you to
our committee, and I thank Doris Meissner for changing her
schedule to be with us. I appreciate very much all of your
continued ideas on these issues.
Let me ask you, on the basic issue on the immigration, we
have dramatically expanded the resources on the border, yet
illegal immigration has soared. And we have pushed people, I
think, further underground since 9/11, and we have wound up
keeping more migrants here because they fear if they leave,
they will not be able to get in here. And we are now increasing
the number of people that are dying out in the deserts, and we
are in danger of getting these vigilante groups that are
beginning to say that they are going to come down to our
border.
What do you think we need to be doing differently in order
to get a better handle on the undocumented immigration? Is
enforcement by itself a viable option? What else should we be
thinking about?
Ms. Meissner. Well, I was pleased to hear the Chairman in
his opening statement use the terminology that is becoming, I
think, very well accepted, and that is that the immigration
system is broken. I mean, you are pointing to one set of
examples, but there are many, many examples. And so I am very,
very pleased that you have held this hearing and that you are
seeing this hearing as the beginning of a set of discussions,
because we have to have a really focused public debate, and it
has to happen in the Congress on how to fix it. How to fix it
has to do, obviously, with recognizing what the reality is in
the country today, and that is that we are a country that is
aging. We are not from our own population creating a number of
workers that our job market needs. We are dealing with a border
enforcement structure that has cost us billions of dollars.
I feel very close to that border enforcement activity. I
believe strongly in doing border enforcement. But you cannot
deal with the immigration system and controls on the
immigration system just at the Southwest border or, actually,
just at our borders all around. I mean, I agree with Janice
that border enforcement is extraordinarily important, but if
there is always the pressure and the availability of a job in
this country for people who are able to get past the border, no
matter what you do at the border, it is not going to be
sufficient.
I will be interested in your interior enforcement hearings.
Interior enforcement is very important, but I would submit at
this point that it is not possible to do it effectively with
our current laws.
So coming up with an enforcement regime that is strong,
effective border enforcement but backed up by accountability
within the country, where work is concerned, where documents
are concerned, and then, of course, dealing with the issue of a
large population of people here who do not have legal status,
whom we need as demonstrated by the market, but who are right
now absolutely, arguably, a security weakness because it is a
large number and we do not know who they are. And then,
finally, the question of the labor market for the future. How
do we regulate the flows of people coming to the country for a
variety of reasons that are in our National interest? It is a
very, very big portfolio, but it has to be addressed.
Senator Kennedy. Well, I want to thank you for your very
thoughtful response, and we will be continuing to draw on your
experience as we go along with these hearings.
Thank you, Mr. Chairman.
Chairman Cornyn. Senator Feinstein?
Senator Feinstein. Thanks very much.
Doris, it is great to see you again.
Ms. Meissner. Same here.
Senator Feinstein. You look wonderful. A little grayer than
I remember you, but I think that happens to all of us.
Ms. Meissner. So it goes.
Senator Feinstein. And, Janice, it is great to see you,
too, but particularly Doris because I have served on the
Immigration Subcommittee now for 13 years, and you are a big
part of it. So it is wonderful to see you again.
Ms. Meissner. Thank you. Very nice to see you, too.
Senator Feinstein. I have been perusing the staff report
here, and I wanted to ask you about a part of it because I
think there is a tendency for us to throw up our hands and say
we really cannot do anything and that, oh, you know, this is
America and we all believe in the freedom and all of this.
And yet when you read this report and you see how
sophisticated al Qaeda was--and I want to give you one example,
and that is their use of document travel facilitators, Abu
Zubaida, Riyadh, the African facilitator, how they came
together, how they are able to take each terrorist and work out
a suitable way of entry for that individual.
I went over each of the terrorists. Some of them married to
come in. They used all kinds of different visa entries. But it
was so smart and so studied.
And I want to just read a part of this to you and ask you
to comment. ``al Qaeda relied heavily on a small cadre of
operatives and their assistance to facilitate travel for their
network. Chief among them were Abu Zubadyah, a facilitator we
will call the African facilitator in Riyadh. Broadly speaking,
a terrorist travel facilitator assisted operatives in obtaining
fraudulent documents, of which the world abounds; arranging
visas, real or fake; making airline reservations, purchasing
airline tickets, arranging lodging and ground transportation,
and taking care of any other aspect of travel in which his
expertise or contacts were needed.'' And then they profile each
one of these men and how they got together and how they worked
and the amount of money. You know, one facilitated the flow of
funds to al Qaeda, allegedly passing half a million dollars in
late 2001 from Saudi donors to extremists and their families in
Pakistan.
Then they relied on outsiders. ``Document vendors provided
al Qaeda with a wide range of bogus and genuine documents and
were valued for their forgery skills. Through these vendors, al
Qaeda operatives had access to an impressive range of
fraudulent travel, identification, and other documents,
including passports from countries in almost every region of
the world--travel caches, blank visas, foils, stamps, seals,
laminates, and other materials.'' And it goes on and on and on.
And so, often people say, you know, we are trying to do
things and there is no real need to do them. I wish I believed
that. I believe there is every need to do them and every need
to look at our programs, and maybe even cancel some and go into
a strict program. And, Doris, I wish I agreed with you that the
border cannot be enforced. I actually believe it can. You were
here when we--when you put forward, I think, Operation
Gatekeeper, and it has worked. The problem is it has moved
people from the San Diego, California, border into the Arizona-
Texas border. But where it existed, it worked--works still.
My question is this: When you see the sophistication of the
terrorist movement of today, the facilitators, the outside
travel vendors, how they really look at all of the various
aspects, wouldn't you say that the visa waiver program offers
them an enormous opportunity, when you look at the numbers of
stolen fraud-proof passports from visa waiver countries in the
thousands, that this is the way they can easily come in, get
lost, and remain here?
Ms. Meissner. Well, first, let me be absolutely clear about
border enforcement. I believe in border enforcement. I think
that we must do border enforcement, and we do know how to do
border enforcement. I just don't think it can be the only
thing, and that is essentially what we have done, is we have--
and until 9/11, we were not serious even about ports of entry.
We were serious only about the land border between the United
States and Mexico.
So what I am saying where border enforcement is concerned
is don't rely solely on border enforcement in order to combat
terrorism, or illegal immigration, for that matter. There need
to be a series of things in place because, as the 9/11
Commission work clearly showed, wherever the weaknesses are, it
is the weaknesses that will be exploited. So the issue is to
put a whole set of things into place, and even to have some
redundancies.
You know, I want to return the compliment to Janice. She
worked brilliantly on the staff of the 9/11 Commission. We
worked together for many hours of deposition and debriefing, et
cetera, in order to try to figure out really, you know, what
would be the proper approaches, and I think the 9/11 Commission
report is very, very, thoughtful. And what----
Senator Feinstein. If you could change one thing, both of
you, what would it be?
Ms. Meissner. You mean where the border is concerned? If I
could change one thing where the border is concerned, what it
would be is accountability on the part of our interior
enforcement and primarily accountability with employers, a way
to verify who is working and a way to follow up to be sure that
that employment relationship is according to law, because that
is what--the weakness there and the need for those people in
our labor market without being able to regulate it effectively
is what is putting undue pressure on all of these other things,
where we are actually doing quite well.
Senator Feinstein. Janice, if you could change one thing,
what would it be?
Ms. Kephart. Senator, I have four pages of recommendations.
Let me pick something.
Senator Feinstein. No, pick the key thing that you think
would make a difference.
Ms. Kephart. I think that although we are talking a very
good talk right now about border security being national
security, we have it very buried in DHS right now.
My second choice would be what Commissioner Meissner
stated, which would be the Under Secretary of Policy position
at DHS. It is something we talked about amongst our staff while
I was at the Commission, and it is something that Secretary
Ridge was considering when we interviewed him. I don't know if
Secretary Chertoff is considering the same. But we need
homogeny in the policy process. We need homogeny as we create
better rules, standard operating procedures, electronic
libraries of fraudulent documents at our ports of entry, so our
programs are consistent.
We have, for example, right now--and Interpol has created
at the cost of millions of dollars a huge database of lost and
stolen passports, Senator. That is available to us, but only in
secondary inspections right now. It is not available----
Senator Feinstein. What does that mean?
Ms. Kephart. Well, what that means is that when you have
your immigration inspector come in and that passport gets
swiped, the number on that passport is not being automatically
queried into Interpol's lost and stolen passport database. They
have dozens of countries in it now, millions of documents in
it, and if we had it swiped, then it would not be up to the
immigration inspector trying to figure out if that document has
a problem. He would automatically know something once that
document was swiped.
What you have, as my understanding is, at DHS in Science
and Technology--and maybe this has changed in recent months--is
that they were going and creating their own bilateral
agreements with visa waiver countries to get their lost and
stolen passport database. On the database created here in the
U.S., while we are also cooperating with Interpol, I think that
is a duplication of resources perhaps. We have so many other
needs. We have interior enforcement still at 2,000. We have
Border Patrol needs that are very strong. So, you know, there
are discrete things that we can do at our ports of entry,
programmatic, cost-effective. Some of them could just be rule
changes that I think we can do sort of across the board. But I
think the overall problem is that we have got a situation where
people are talking about deck chairs at ICE and CBP. We are not
talking about the ship it is in.
Senator Feinstein. Okay. Let me ask this question: When we
have got--I guess it is US-VISIT set up on entry and exit----
Ms. Kephart. Not on exit, ma'am.
Senator Feinstein. No, no. When we get it set up.
Ms. Kephart. Oh, when we do. I am sorry.
Senator Feinstein. Now, as I understand it, it is not set
up on exit and it is partially set up on entry. But assuming
they can get it, what kind of security do you think that will
provide?
Ms. Kephart. Do you want to start?
Ms. Meissner. It will provide information. It will provide
very important information, which will allow us to do what in
the 9/11 Commission is talked about as analysis of trends and
patterns.
Senator Feinstein. Should that be our goal to see that get
done?
Ms. Meissner. That is critical. Absolutely. In order to
know what is happening, you have to have that. But that is not
enough. What nobody has figured out--and it was alluded to by
the earlier witnesses--is what do you do when you know that
certain people have not left, because having the information is
one thing, being able to act on the information is another
thing. Having the information for analytic purposes is
extremely important. That is feedback that we need. It is also
a basis for then, you know, the people that have not left, you
run them first. The most important thing you would do is run
them against your terrorist watchlist and so on.
Senator Feinstein. But, Doris, if we cut down the entry
period--Senator Kennedy asked the question, I think Senator
Cornyn dealt with it, I had it. I did not do it because they
did it, that if you want to come in for 2 weeks you get a 6-
month visa.
Ms. Meissner. Unclear. Until we look at that data and find
out how long most of those people actually stay, it is entirely
possible that most of them are only staying 2 or 3 weeks. We do
not even know.
But as I said, if you start to----
Senator Feinstein. Wouldn't it be common sense--wouldn't it
be common sense to have a 30-day visa or 3-week visa?
Ms. Meissner. It is easy to say that it is common sense,
but when you see all of the circumstances of the almost 10
million people that have that visa and have to deal with each
one of them person by person at a port of entry in order to
decide should it be 2 weeks, should it be 1 month, should it be
6 weeks, I am not sure that is a very good use of resources.
The length of time in the country may not be nearly as
important as other characteristics about the people.
Senator Feinstein. Well, it is like if you go to China. You
get a visa, and it is for a specific period of time. There are
very few--they give some multiple-entry visas.
Ms. Meissner. Right.
Senator Feinstein. But you get a 30-day visa. You know, I
have visas, 5 days. I do not feel insulted----
Ms. Meissner. There is no question we--there is no question
we could do it. Whether it would make any difference at all, we
don't know.
Senator Feinstein. But it is not done at the port of entry.
Ms. Meissner. Yes, it is.
Senator Feinstein. It is done by the--no, when I get a
Chinese or another visa from another country, the visa comes to
me from them like that.
Ms. Meissner. That is the way they originally issued it,
but our system is one where, as you know, whatever is
originally issued by the consulate is also then independently
validated by the port of entry inspector.
Senator Feinstein. Oh, I see. I see.
Ms. Meissner. You have a slightly different statutory set-
up.
Senator Feinstein. Maybe we need to change that process.
Why does it have to go to the port of entry?
Ms. Meissner. Because that is where the people enter, and
there can be----
Senator Feinstein. But don't you have--you have your visa
when you come in.
Ms. Meissner. Right.
Senator Feinstein. And it says the length of time on it.
Can't it just come from our offices abroad?
Ms. Meissner. It could. It could, but, you know, you would
have to change the statutes for that.
Senator Feinstein. I think that is something to think
about.
Ms. Meissner. Well, actually, that is an area of redundancy
that is probably in our favor.
Senator Feinstein. Why? We don't----
Ms. Meissner. As a country. Well, because people apply for
the visa now, they might come a month from now. In the
meanwhile, you can get information, something may have
happened. You want them checked at the port of entry. You don't
want to just be a rubber stamp.
Senator Feinstein. Well, we need to talk about this because
I think I have got a misunderstanding or something. But,
anyway, thank you very much.
Ms. Meissner. Anyway, I am not against changing it. I am
simply saying we should know whether there is a connection, and
we don't know whether there is a connection between length of
stay and terrorism or illegal stay. We just don't.
Senator Feinstein. Well, you can look at the terrorists,
and you can make some----
Ms. Meissner. No, you can't, because they were, by and--
they were within the bounds.
Senator Feinstein. Yes, but they had visas for extended
periods of time, too.
Ms. Meissner. That was not necessarily what was connected
to their terrorism.
Senator Feinstein. Well, the question comes----
Ms. Meissner. They could be independent----
Senator Feinstein. Why not--well, all right. You know, if
you are going to give somebody a visa and let them come in for
6 months and you know very little about them, you might as well
give it to them practically forever, because they can come in,
they can have time, they open the bank accounts, they get the
fraudulent driver's license, the fraudulent Social Security
number, all of which takes time. They open their bank accounts.
They get their banking scheduled. They become respectable in
the neighborhood. And then, bing, you turn your back and you
are hit.
I am one that believes that some of that planning is
probably going on today. And I think the longer the visa, it
gives you the time to do all these things. That is my only
point.
Ms. Meissner. That could very well be possible. As I say,
we really don't know.
Chairman Cornyn. Ms. Kephart, would you like to comment on
this?
Ms. Kephart. I sure would.
Chairman Cornyn. Do you have any different views?
Ms. Kephart. Yes, please. First, the value of US-VISIT,
Senator Feinstein, is, I believe, as I have looked at it
closely, it is to integrate the databases and provide biometric
information at the border so that our front-line officers can
make better decisions when they are seeking to admit folks.
It also does something else which the other staff and I on
the 9/11 Commission thought was extremely important, and that
was creating terrorist--the beginning of creating of terrorist
travel histories. You can begin, as we begin to integrate our
databases, and something we strongly recommended to the
Commissioners, was that we need to have an integrated knowledge
of our travelers. We need to create histories for them. It
starts at the consular office if they are asking for a visa. If
they are visa-waiver, it starts at the ports of entry.
Therefore, if they come and they ask for more favors from the
U.S. Government in terms of immigration, we have that in the
US-VISIT and we can return to it as they seek immigration
benefits. We can cut out a lot of the issues with fraud from
that vantage point, and I think US-VISIT is probably the best
and strongest thing we have done as a Government.
The second thing in terms of the issues brought up, that
you brought up, Senator, was the length of stay. One thing that
we can do that would perhaps be helpful for consideration would
be simply initially, as we are vetting the process and figuring
out exactly what the best solution would be for the length of
stay in the U.S., would be to simply match those who are
getting visas from visa countries to the visa waiver length of
stay. The visa waiver length of stay when you get here is 3
months, period. You have got to go at the end. There is no
discretion there. There is also really--even though I heard DHS
folks say differently, there is really no discretion on the 6-
month length of stay for tourists from visa countries either.
When I interviewed 26 of 38----
Senator Feinstein. What do you mean when you say there is
no discretion? What does that mean?
Ms. Kephart. The admitting officer, your inspector who
looks at your passport and admits you, really does not have the
ability to say you get any less time than 6 months. He has to
actually go to his supervisor, which he is not going to do when
he has got, you know, 45 second to a minute to adjudicate
somebody, go to his supervisor and get approval to give less.
It is not encouraged. It was a customer-oriented system before,
on the front lines. It is becoming, from what I understand, a
customer-oriented system again. And so, therefore, we could
keep that discretion away and just simply match it to visa
waiver. Visa waiver folks are supposed to be our better
friends, anyway. You know, people from visa-issuing countries,
we perhaps need to match that. That could be a simple first
solution, perhaps.
The other thing is that we do know that terrorists abuse
the length of stay. It is something that was established in the
staff report. They do abuse it. Mohammed Atta, after coming in
twice in the spring of 2000 and then again in January 2001,
knew very well that he would get 6 months if he claimed he had
visitor/tourist needs here. It became clear. And believe me, it
only came clear to us as staff after I actually had put
together the chronology in here, we put together the consular
officer activity and the immigration inspector activity, the
actual applications for visa and the entries. And we realized
that, yes, indeed, these people had a travel operation. The
terrorists had a terrorist travel operation. That is where our
title comes from. But it took us 14 months to get there.
And so Atta knew what he was doing when he brought those
folks in the spring and summer of 2001. He knew he had 6 months
for them, and he used it. And so I think we do have evidence,
and it is not guesswork at this point.
Chairman Cornyn. Ms. Kephart, the staff report notes that
inspectors receive no behavioral science training and no
cultural training and no regularly updated training. You also
noted that the 9/11 hijackers encountered U.S. border security
68 times.
Ms. Kephart. Yes.
Chairman Cornyn. What role do you think these deficiencies
played in failing to deter the hijackers from entering the
country?
Ms. Kephart. Well, I cannot say what it deterred, but I can
say where it helped. And where it helped was the situation of
the 20th hijacker. The 20th hijacker was Mohammed Al Kahtani.
On August 4, 2001, he sought entry into the U.S. He was the
only hijacker to try to enter without a buddy. That might have
made his situation particularly worse. But he was referred to
secondary. He didn't speak any English, and he appeared
arrogant to the inspector. Fortunately, the primary inspector
had experience and so she noted these small anomalies.
He went into secondary and, perhaps, we shall say, by the
grace of God, encountered somebody who had been trained in
behavioral science in the Army. And so this individual knew
what he was doing, and he spent about an hour and a half with
Kahtani, found grounds of intending immigrant to deny him
entry, would have sought expedited removal, was supported by
his superiors because he was a well-respected inspector.
But his knowledge and understanding of behavior allowed us
to keep out the 20th hijacker--one of the 20th hijackers. There
were others who were trying to get in as well. But there is a
positive spin, perhaps, on what we can do and the value of
behavior.
The others, there was a whole range of immigration
inspector experience amongst the others I interviewed. Some had
been immigration inspectors for 15 years. Others had been
immigration inspectors for a year. You had immigration
inspectors who were 15 years in the making being actually more
lenient, not paying attention to the behavioral cues as much as
the younger ones who were newer and fresh.
So behavioral cues I think are important. They are
definitely hard to teach, but I think it is something that we
need to pay attention to.
Chairman Cornyn. In your opening statement, you mentioned
Director Mueller's statements and Admiral Loy's in your written
testimony. Based on your experience while working for the 9/11
Commission, how has the training for those most likely to
initially encounter special interest aliens improved since 9/
11?
Ms. Kephart. You know, sir, I don't have the answer to that
because I am no longer privy to what is going on inside DHS. I
had lovely access while on the Commission. I have no access
now. So I have to deflect that question because I simply cannot
answer it.
Chairman Cornyn. We will follow up with someone else who
still has access to that information.
Ms. Meissner and Ms. Kephart, thank you very much for
participating in this. I think we have all--we have certainly
benefited from this exchange, and on behalf of both
Subcommittees, I would like to thank all of the witnesses for
their time and their testimony.
We will leave the record open until 5:00 p.m. next Monday,
March 21, for members to submit any additional documents into
the record and ask questions in writing of any of the
panelists. Right now I have a statement from Senator Leahy and
from the Mexican American Legal Defense and Education Fund,
which will be made part of the record, without objection. But
if there are others between now and then, the deadline is March
21st at 5:00 p.m. next Monday.
With that, the hearing is adjourned. Thank you so much.
[Whereupon, at 4:43 p.m., the Subcommittee was adjourned.]
[Questions and answers and submissions for the record
follow.]
[Additional material is being retained in the Committee
files.]
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