DEPARTMENT OF HOMELAND SECURITY
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
MARCH 5, 2008
__________
Serial No. 110-114
__________
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
MAXINE WATERS, California DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts CHRIS CANNON, Utah
ROBERT WEXLER, Florida RIC KELLER, Florida
LINDA T. SANCHEZ, California DARRELL ISSA, California
STEVE COHEN, Tennessee MIKE PENCE, Indiana
HANK JOHNSON, Georgia J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois TOM FEENEY, Florida
BRAD SHERMAN, California TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
Perry Apelbaum, Staff Director and Chief Counsel
Sean McLaughlin, Minority Chief of Staff and General Counsel
C O N T E N T S
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MARCH 5, 2008
Page
OPENING STATEMENTS
The Honorable Zoe Lofgren, a Representative in Congress from the
State of California, and acting Chairperson, Committee on the
Judiciary...................................................... 1
The Honorable Lamar Smith, a Representative in Congress from the
State of Texas, and Ranking Member, Committee on the Judiciary. 2
WITNESSES
The Honorable Michael Chertoff, Secretary, U.S. Department of
Homeland Security
Oral Testimony................................................. 3
Prepared Statement............................................. 8
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Member,
Committee on the Judiciary..................................... 69
Prepared Statement of the American Civil Liberties Union (ACLU).. 72
Responses to Post-Hearing Questions received from the Honorable
Michael Chertoff, Secretary, U.S. Department of Homeland
Security....................................................... 80
DEPARTMENT OF HOMELAND SECURITY
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WEDNESDAY, MARCH 5, 2008
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:43 a.m., in
Room 2141, Rayburn House Office Building, the Honorable Zoe
Lofgren (acting Chairperson of the Committee) presiding.
Present: Representatives Nadler, Scott, Watt, Lofgren,
Jackson Lee, Waters, Delahunt, Sanchez, Cohen, Johnson, Sutton,
Baldwin, Schiff, Smith, Sensenbrenner, Coble, Goodlatte,
Cannon, Issa, Pence, King, Feeney, Franks, and Gohmert.
Staff present: Ur Mendoza Jaddou, Majority Counsel; and
Crystal Jezierski, Minority Counsel.
Ms. Lofgren. Good morning. The Committee will come to
order. I would like to welcome everyone. Without objection, the
Chair is authorized to declare a recess of the Committee at any
time.
We are pleased today to welcome the Secretary of Homeland
Security, Mr. Michael Chertoff. We are holding this hearing
pursuant to our oversight responsibilities regarding certain
offices and programs at the Department of Homeland Security
that fall within the jurisdiction of the Judiciary Committee.
The Homeland Security Committee has jurisdiction over the
organization and administration of this Department generally
over all homeland security and a number of specified security
issues.
But our hearing will focus not on the Department and its
mission broadly, but instead more narrowly on matters relating
to criminal law enforcement functions such as at the Secret
Service and the Air Marshals, to name two; immigration policy
and non-border enforcement; privacy, civil rights and civil
liberties protections as they pertain to the Department's
responsibilities. That focus should guide our discussion and
our questions this morning.
I believe this is a particularly important time for us to
be conducting this hearing, and I hope we will explore a
variety of topics. I will touch on just a couple now related to
immigration policy and enforcement.
At a hearing last month in the Immigration Subcommittee, we
heard a number of reports of raids and removals and apparent
neglect of basic due process and fourth amendment protections.
One was a 15-year-old girl in Georgia who walked out of her
bedroom to find armed ICE agents had entered her home without
permission while her mother was out. If they had a warrant,
they never showed it to her. She was a U.S.-born citizen, as
was her mother.
There are also reports of ICE failing to provide basic
medical care to immigration detainees, of detainees with HIV or
other serious chronic conditions deprived of lifesaving
medications or needed diagnostic procedures during extended
periods of detention. In one instance, a doctor's request for a
biopsy of a detainee was repeatedly denied over a period of 10
months. By the time the individual was finally permitted to get
the biopsy, the cancer had spread and wasn't curable.
Meanwhile, there is a growing backlog of actualization cases,
despite hikes in fees with the promise to speed the process up.
I expect our Members to have a variety of questions for
you, Mr. Secretary, and I appreciate your being with us. There
is a strong interest here in your Department's work and in
helping ensure that in the areas of our jurisdiction, you have
the resources and the commitment to do that work.
I would now recognize our Ranking Member, Lamar Smith of
Texas, for an opening statement.
Mr. Smith. Thank you, Madam Chairman. I join you in
welcoming Mr. Secretary to I think his first appearance before
the House Judiciary Committee.
Since its creation, the Department of Homeland Security has
made significant strides in revitalizing the immigration
enforcement efforts that had been left to languish under both
Democratic and Republican administrations. I am especially
appreciative of the renewed attention to worksite enforcement,
alien fugitive apprehension and criminal alien removal.
However, we cannot forget all the work that is left to do.
There are still 7 million illegal immigrants working in the
United States, and DHS estimates that there are 605,000
foreign-born aliens incarcerated in state and local facilities,
half of whom are illegal immigrants.
Given the current state of the economy, securing American
jobs is more important now than ever. DHS's continued worksite
enforcement efforts are critical to promoting the American
economy and protecting the American workers. Companies which
had long relied on illegal immigrant labor are for the first
time in years raising wages, improving working conditions, and
recruiting more American workers.
To enforce immigration laws and keep America safe, Congress
must grant DHS additional tools. For example, DHS needs the
basic pilot program, or E-Verify, to be reauthorized and made
mandatory so that DHS can finally turn off the job magnet for
illegal immigration. And DHS needs to have the ability to
detain dangerous criminal aliens and keep them off our streets.
However, DHS's first goal must be to secure the border. So
I am disappointed by the Administration's failure to seek
funding for anywhere near the number of immigration detention
beds and interior enforcement agents that Congress called for
in the Intelligence Reform and Terrorism Prevention Act of
2004. The Administration may have ended catch-and-release for
non-Mexicans along the southern border, but catch-and-release
is alive and well in the interior of the U.S.
Most illegal aliens picked up in the interior of the
country are released the next day due to lack of detention
space. This and other forms of catch-and-release in the
interior will only be ended by dramatic increase in immigration
detention beds and interior enforcement agents.
I regret that the Administration has not implemented an
exit control system for immigrants more than a decade after
Congress called for its creation. I am disappointed by the
Administration's unwillingness to cut off visas to countries
that do not accept back their citizens, over 100,000 who have
been ordered deported from the U.S. I am also disappointed by
the Administration's failure to require the Social Security
Administration and the Internal Revenue Service to share
information with DHS that could make DHS's job of immigration
enforcement so much easier. Mr. Secretary, I think you may
share my disappointment in that area.
Finally, I am disappointed that only 167 miles of physical
fencing are being built along the southern border. I am
disappointed that the Administration is not seeking to build
more double-fencing.
I look forward to the Administration addressing these and
other concerns, and I look forward to hearing from Mr. Chertoff
today on ways to continue to make immigration law enforcement
more effective.
Madam Chairman, America has the most generous immigration
system in the world. We admit over one million legal immigrants
every year. So I don't think it is too much to ask that our
laws, our borders and our sovereignty be respected by others.
Before I yield back my time, Madam Chair, I would like to say
that I know it was unpreventable, but many Republicans are not
here right now because of a Republican conference that was all
but mandatory, and I expect that we will have a number of
Members show up in just 10 or 15 minutes.
The other thing I wanted to mention is that unfortunately I
have a suspension bill on the floor, and at some point this
morning I will have to absent myself and go handle that
suspension bill. I will regret missing a part of your testimony
and responses, Mr. Secretary, as well.
With that, Madam Chair, I will yield back.
Ms. Lofgren. The gentleman yields back.
We could recess this hearing until 10:15, at the end of the
conference, but I thought there was an interest in proceeding.
So the interest is in proceeding, then? All right, then we will
proceed. Thank you.
Without objection, other Members' opening statements will
be included in the record.
We would now turn to Secretary Chertoff and invite him to
give us his statement. Welcome, Secretary Chertoff.
TESTIMONY OF THE HONORABLE MICHAEL CHERTOFF, SECRETARY, U.S.
DEPARTMENT OF HOMELAND SECURITY
Mr. Chertoff. Thank you, Congresswoman Lofgren and
Congressman Smith and other Members of the Committee. I have a
full written statement that was submitted that I ask the----
Ms. Lofgren. Without objection, the full statement will be
made part of the record.
Mr. Chertoff. I appreciate the opportunity to talk about
the Department's continued efforts to secure the country and
protect the American people. I appreciate this Committee's role
in providing guidance on the issue of immigration. Together
with the strong support and partnership that Chairman Thompson
and Ranking Member King have given this Department through
their oversight on the House Homeland Security Committee, which
is our authorizing Committee, we are able to work together in
partnership with Congress to enhance our national security.
As you know, this is the fifth anniversary week of the
Department. Over the last 5 years, we have in fact made
enormous strides in building national capabilities, plans and
partnerships to defend our country against all hazards. I have
divided our mission into five basic priority goals: protecting
our Nation from dangerous people; protecting our Nation from
dangerous things or goods; protecting our critical
infrastructure; strengthening our emergency preparedness and
response capabilities; and integrating our management and
operations.
Today, I would like to focus my testimony on our
substantial progress toward these goals, focused on the issue
of our efforts to secure the border and manage immigration.
Last August, Secretary Carlos Gutierrez and I laid out 26
reforms the Administration would pursue to address the Nation's
immigration challenges within the framework of our existing
laws. We have made substantial progress toward these goals,
although we have not yet achieved them. I would like to
highlight some of that work today.
Let me begin at the border, because the challenge of
immigration and illegal immigration begins at the border,
although it does not end at the border. In the time that has
intervened, particularly since we announced our secure border
initiative in 2006, we have made dramatic increases, adding
fencing, border patrol, and technology between the ports of
entry, and we have also made significant steps in tightening
the travel document requirements and other security measures
that apply at our ports of entry, including the use of
biometrics in the transition from a two-print biometric system
to a 10-fingerprint biometric system, which is currently
underway not only overseas at our consulates, but here at our
airports of entry.
We have constructed 303 miles of fencing along the southern
border, including about 168 miles of pedestrian fencing and
about 135 miles of vehicle fencing. This places us on-target to
have 670 miles of barriers in place at the end of the year. To
give you some visual sense of what that means, that will mean
that the vast majority of the area from the Pacific Ocean to
the Texas-New Mexico border will have some kind of a barrier in
place by the end of this year, except in those areas where
there is a natural barrier like a mountain or something of that
sort.
We have currently expanded the Border Patrol to more than
15,500 agents, with plans to reach over 18,000 by the end of
the year. Again, by way of comparison, when the President took
office in 2001, we had somewhat over 9,000 agents, so we are
going to have doubled the number of Border Patrol agents in
this intervening period of time.
We have also continued to deploy technology to the border
as part of our Secure Border Initiative, SBInet. Here, because
of a triumph of inaccurate press reporting, I am going to take
the opportunity to lay out in fact what we are doing
technologically at the southwest border. SBInet is a strategy
of using a number of different kinds of technological systems
to enhance the ability of the Border Patrol to identify people
illegally crossing the border and to apprehend them.
This includes things such as unmanned aerial vehicles. We
took delivery of the fourth unmanned aerial vehicle about 2
weeks ago. These UAVs cruise above the border with cameras. I
have personally witnessed how they allow us to identify groups
of illegal aliens in remote areas or groups of drug smugglers
in remote areas so that we can communicate with ground-or air-
based Border Patrol assets in order to intercept and apprehend
these smugglers.
Our technology also involves the use of ground sensors, and
we will have in place more than 7,500 ground sensors by the end
of this fiscal year. It also includes what we call mobile
surveillance systems. Again, I have had the opportunity to
witness these work. These are basically radar systems and
camera systems that are in-place on vehicles that can be
situated in various places at the border. We currently have
about a half-dozen. By the end of this year, we will be at 40.
So these systems are working. They produce real value. We
are expanding them and we will continue to expand them.
One element of this strategy is the development of an
integrated approach to using fixed-base radar and cameras along
a swath of border. We began the process of testing this
approach through a prototype system that we deployed along 28
miles of the border in the vicinity of Sasabe, Arizona. This is
known as Project 28.
Some people have misconceived Project 28 as the entirety of
SBInet. I would say the more accurate way to describe it is
Project 28 is to SBInet as a single battle cruiser is to the
United States Navy fleet. It is an element of the capability,
but it is not the entirety of the capability.
This project, Project 28, was delayed about 5 to 6 months
before acceptance due to some problems with the technology.
When the problems arose last summer, I personally had a
conversation with the CEO of Boeing, which I would describe as
an unvarnished conversation, in which I told him that we were
not wedded to using this approach and that if the approach
could not be made to work properly, we would not pursue it any
further.
To his credit, he overhauled the team that was working on
the project. Most of the material problems were corrected by
December. We took conditional acceptance. We began to work with
it directly and operationally. The remaining material problems
were corrected. Immaterial problems were dealt with by our
receiving a credit. The additional effort and time put into
fixing the system, the money for that was eaten by Boeing. We
didn't pay extra. It was a $20 million system and we paid $20
million, less the credits we got.
The system is now functional and working. I have asked the
Border Patrol. I have looked them in the eye from the chief of
the Border Patrol down to the project manager, to the senior
people at the border. I have said to them: Does this add value?
Because if it doesn't, I am happy to use all the other tools
that we have. They have looked me in the eye and they have said
it does add value. Now, we need to take it to the next level,
and that is what we are in the process of doing. We expect to
begin further deployments this year in 2008 in other parts of
Tucson and a sector at the border.
At the ports of entry, we recently ended the practice of
accepting all declarations of citizenship. This actually
received a little bit of controversy, although I frankly
thought the remarkable thing was that we had ever accepted oral
declarations. But we have ended the practice. This will reduce
false claims of U.S. citizenship. We have ended the practice
without causing large backups at the border. In fact, there has
been a very high level of compliance with our new document
requirements.
Let me take the opportunity to address this issue of
identification documents in the larger context of the Western
Hemisphere Travel Initiative (WHTI) which Congress has now
delayed implementation of until June 2009, and in the context
of the REAL ID Act. It is my conviction based upon what I have
observed, every time we have made secure documents available to
the American public, that the public wants secure documents.
The enhanced driver's license which the state of Washington
has recently begun to issue, which is REAL ID-compliant and
which will be WHTI-compliant, these are going like hotcakes.
People want it. All we have to do is give it to them, and the
market will operate. So I propose we continue to move along
this course.
As Congressman Smith noted, interior enforcement is a
critical element of this process because the economic engine
that brings people into the country is the largest factor in
controlling illegal immigration. I set a new record last year
with 863 criminal arrests in worksite enforcement cases,
including 92 people in the employer supervisory chain. We
further had over 4,000 administrative arrests.
Let me say that just in the last couple of days, Richard
Rosenbaum, the former president of a contract cleaning service
who we arrested last year for harboring illegal aliens and for
conspiracy to defraud the U.S. and harbor illegal aliens, was
sentenced to 10 years in prison. Ten years in prison is a
sentence that will get an employer's attention because it is
comparable to the kinds of sentences that serious felons get
for other kinds of crimes.
So we are going to continue moving forward with this. We
have raised the fines. We have worked with the Department of
Justice to raise fines against employers by 25 percent. E-
Verify, again, is a system and the marketplace is speaking. We
are adding between 1,000 and 2,000 employers a week to the
system. We are up to more than 54,000 nationwide. I join
Congressman Smith in urging Congress to reauthorize the system
that employers want because it allows them to follow the law.
That is what they want to do, the vast majority of them.
Finally, let me say that ICE has removed more than 31,000
fugitives in fiscal year 2007, nearly double the previous year,
and initiated removal proceedings against 164,000 illegal
aliens in U.S. jails in 2007, which is compared to 70,000 the
prior year. So we are dramatically ramping up our removals.
Although I agree with Congressman Smith that some countries are
not being cooperative and we have to find a way to address this
issue. We want to continue to build on this progress which the
President's proposed budget in 2009 would do.
Finally, we recognize that there is a need for labor in
certain sectors of the economy that has previously been
satisfied through the use of undocumented workers, that we are
going to have to find a lawful way to satisfy. And that is why
last month Secretary Chao and I proposed changes to the H2A
seasonal agricultural worker program to allow employers to have
a legal way to bring temporary workers in to perform
agricultural work. We want to work with Congress to modify some
other programs like the H2B program, which are lawful ways
people can come into the country and work.
So with these efforts and others, we hope to continue to
build the kinds of capabilities that will move us forward
toward an immigration system that is protective of American
interests, that is fair, but that respects the rule of law, and
that also deals with legitimate economic needs that we have in
this country.
Thank you for hearing me, and I look forward to answering
questions.
[The prepared statement of Mr. Chertoff follows:]
Prepared Statement of the Honorable Michael Chertoff
Ms. Lofgren. Thank you, Mr. Secretary.
We will now move to questions by Members of the Committee.
I will begin.
As you are aware, I spend much of my time here in Congress
on my assignment as Chair of the Immigration Subcommittee. One
of the things that has become clear to us is that we have a
problem with service-members and their families, particularly
now in this time of war. It seems to me there is no greater
duty that we owe than to those men and women who are serving in
our armed services, especially in a combat zone. The last thing
we want to do is to add stress to them at a time of their
service.
Now, I have recently been advised that USCIS has issued a
number of notices to appear to soldiers and sailors for
deportation because of paperwork glitches. For example, if one
is the recipient of a petition based on marriage to an American
citizen, there is a condition on the permanent residence that
is removed after 2 years, and you have to file a piece of paper
to remove the condition. But because we allow soldiers and
sailors to naturalize on a more expeditious basis, the Army has
suggested that you just proceed on the naturalization petition.
Instead of that, we have issued deportation orders to our
soldiers.
I am very concerned also about family members. We had a
sailor appear before our Subcommittee last year. He came in his
Navy whites. His wife was undocumented, and he was about to be
deployed for the third time to the Gulf. And he told us in his
testimony that he is having a hard time concentrating on his
work defending our country because he was so worried about
whether his wife would be deported while he was deployed to the
Gulf.
So I think we need legislation to address these situations.
I am working on that right now, but I think there are some
things that your Department can do in the interim to help our
soldiers and family members in those circumstances. For
example, last year Specialist Alex Jimenez was serving in Iraq.
He was attacked and listed as missing. His wife was
undocumented and was facing deportation. Your Department
granted her parole to avoid her deportation and allow her to
adjust her status and get a green card.
Can you advise us what steps you are prepared to take while
we are working on legislation, to make sure that the husbands
and wives of our soldiers don't get deported while they are
serving?
Mr. Chertoff. You know, it is very hard to generalize.
First of all, I share your appreciation for the work that
service-people do. I was in Iraq last year and I got to
participate in a naturalization ceremony for service-members
who had come from all over the world. I think we want to be as
fair and as considerate as possible of service-people.
Now, I can't generalize as to why sometimes a family member
is deportable. If it is merely a paperwork violation or a
glitch in something that prevents someone who would otherwise
be entitled to adjust, if there is some technical issue where
they have missed some piece of paperwork, we should work to
address those issues. If there is some more substantive reason
someone is going to be deported, then that may not be something
we can address. So I think we need to be practical and humane
about it.
Ms. Lofgren. Could you, if not today, get back to us?
Because it just seems to me, the last thing we want is notices
to appear being issued to our soldiers in the field. I mean, we
have to stop that.
Mr. Chertoff. I agree. And certainly that is the kind of
thing I think we can correct. Will something slip through the
cracks sometimes? Experience tells me that in a large
organization with many, many transactions, a few things slip
through the cracks. But I agree with your basic principle.
Ms. Lofgren. Let me turn to another question. I understand
that the Department is actively considering an extension of the
optional practical training program known as OPT for students.
I have written you a letter, in fact, asking that the OPT be
extended for up to 29 months. I think this is one of the
easiest ways to make sure that there is reform to the visa
program, especially as it relates to highly skilled
individuals, which I know from our prior discussions you feel
is an important component of immigration to America.
It is important if we are going to do this that this
regulation be issued before graduation this spring so that
employers and graduating students can make their plans. I am
hoping that if we are going to do this, we can do it promptly.
I want to talk about a rumor that I have heard that OPT
would be conditioned on mandatory E-Verify, which seems to me
unnecessary because E-Verify will not give us any more
information on these students than we already have. All of
these students are already tracked through CEVUS, which DHS
runs, and they are already work-authorized because we have
given their work authorization.
So I am just hoping that this simple idea doesn't sink with
additional mandates that actually won't provide any additional
information to the Department except just paperwork. Can you
address those two issues?
Mr. Chertoff. Well, (A) I agree with you. I think we do
want to get this new regulation out in as timely a way as
possible. As you know, under the law, because it is in the
regulatory process, if I were to start to identify specific
issues and talk about them, I would pretty much guarantee being
in court and the whole thing would get derailed. So we take
seriously all the comments we get. We take them onboard and we
will try to get this thing out as quickly as possible.
Ms. Lofgren. All right.
I will turn now to Mr. Smith for his questions.
Mr. Smith. Thank you, Madam Chair.
Mr. Secretary, thank you again for being here and appearing
before us. It so happens that I think you have the second-
toughest job in all the Federal Government, although I realize
the attorney general may question that. But still, I appreciate
your answering questions.
I want to ask some questions in regard to securing the
border. As you know, the Secure Fence Act requires 700 miles of
double-fencing. It is my understanding that was made optional
by a Senate amendment to the omnibus bill. It is my
understanding that now the plan it to build about 30 miles of
double-fencing of that 700 miles of other kinds of fencing. Is
that correct?
Mr. Chertoff. I think we may now have about 30 miles of
double-fencing. What we are committed to doing by the end of
this calendar year is 670 miles, and then how much of that will
be double-fencing, I don't have a figure for that because I
think we are going to make a decision after we build this,
based on the advice of the Border Patrol, where double-fencing
makes sense and where it doesn't make sense.
Mr. Smith. Okay. Do you consider pedestrian fencing and
vehicle barriers to be as effective as double-fencing?
Mr. Chertoff. In many areas, yes, I do.
Mr. Smith. Double-fencing stops about 99.5 percent of the
traffic.
Mr. Chertoff. I disagree. I don't think double-fencing
stops anybody. All fencing does is slow people up.
Mr. Smith. Where they have had double-fencing in San Diego,
it is my understanding that there was a virtual halt to people
coming over the fences.
Mr. Chertoff. No, here is what the ground truth is. The
double-fencing slows people up. Now, where there was nothing
going on in other parts of the border, the smugglers moved to a
place which was easier. That is just common sense. As we have
actually built up in other parts of the border, the number of
people sneaking across in the San Diego sector has gone up
again slightly.
I can tell you people go through the fencing. They go over
the fencing. They go under the fencing. Now, that doesn't mean
the fencing doesn't have value. It slows people up.
Mr. Smith. And you think that the pedestrian fences, for
example, are as effective as the double fences?
Mr. Chertoff. I think in many areas, it is as effective
because if you are out in the desert, the marginal value of the
second layer of fence to slow somebody up for 15 minutes is
really, frankly, useless in terms of the Border Patrol's
ability to get someplace.
Mr. Smith. Okay. What are your plans for the other 1,300
miles of our southern border? You have mentioned the 670 miles.
What are your plans for the remainder?
Mr. Chertoff. It is going to vary. As you know, because you
are from Texas, Congressman, there are large parts of the
border that have a river that creates a barrier and makes it
hard to cross.
Mr. Smith. I have seen the Rio Grande both dry and at six
inches. I have watched people splash across as they run.
Mr. Chertoff. That is right. So in some places, we are
building fences in Texas. I know you know that that is not a
matter without controversy.
Mr. Smith. Right.
Mr. Chertoff. So the answer is we are going to do a mix of
things. We will build additional fencing and barriers beyond
the 670 miles in some areas. In some areas, we will rely upon
cameras and sensors.
Mr. Smith. The virtual fence?
Mr. Chertoff. We may cut some of the Carrizo cane down,
which will create an unobstructed view in some areas. And in
some areas where there is a mountain, it is really pretty much
a natural barrier.
Mr. Smith. Mr. Secretary, how much of the 2,000-mile
southern border do you have plans to somehow have some type of
system in place to guard against----
Mr. Chertoff. We will eventually have a system in place on
every mile. It is going to vary depending on what the mile is.
Mr. Smith. Okay. And when would that system be in place for
the 2,000 miles?
Mr. Chertoff. I would expect that we will have--well, of
course, we have something in place now almost everywhere, so we
are going to continue to improve it and build it. I would
imagine a lot of work will be done over the next 2 years to
fully deploy technology and the next generation technology.
Mr. Smith. But it may go beyond this Administration, so you
really can't say when?
Mr. Chertoff. I can tell you where we are going to be at
the end of this calendar year. We are going to have over 7,500
sensors, 670 miles of fencing, and the other technical systems
I have talked about.
Mr. Smith. I understand that, Mr. Secretary. Thank you for
those answers.
Let me squeeze in one more question, and that is to your
credit, the number of removals of criminal aliens has
dramatically gone up. But it is still my understanding that
those criminal aliens who are now incarcerated in state and
local jails, the vast majority of those individuals will still
be released into our communities this year. Is that an accurate
statement?
Mr. Chertoff. I don't know that I would agree that the vast
majority of people incarcerated will be released----
Mr. Smith. I didn't say ``vast majority.'' I just said a
majority.
Mr. Chertoff. I don't know that I would say a majority will
be released this year because I don't think their sentences are
all going to expire this year.
Mr. Smith. Okay. Well, of those who are set to expire, then
will the majority be released into our communities?
Mr. Chertoff. Well, I don't know that I could say that
either. I do agree with you, though, that we are not at the
point now where we can deport everybody.
Mr. Smith. I know you are working on that, but today it is
my understanding from the inspector general that over half will
still be released into our communities. I know you are working
on it and I know you are improving it, but do you agree or
disagree with that statement?
Mr. Chertoff. I can't verify that statement. I know there
are supposed to be several hundred thousand illegal aliens in
custody. Since I am assuming that their sentences don't all
expire in 1 year, I can't tell you how many would get out that
wouldn't be covered by our programs. So I can't disagree, and I
can't agree with your statement.
Mr. Smith. Thank you, Mr. Secretary.
Thank you, Madam Chair.
Ms. Lofgren. Thank you.
I will now recognize the Chair of our Constitution
Subcommittee, the gentleman from New York, Mr. Nadler.
Mr. Nadler. Thank you.
Mr. Secretary, in February of 2003, Congress provided $1
billion in 9/11 disaster assistance to FEMA, in the words of
the statute, ``to establish a captive insurance company or
other appropriate insurance mechanism for claims arising from
debris removal which may include claims made by city
employees.'' The purpose of the fund was to remove the
financial burden from the city, while providing compensation to
those working at Ground Zero who had been injured thereby.
FEMA subsequently signed a grant agreement with the city of
New York establishing the World Trade Center Captive Insurance
Company to handle 9/11 claims. Unfortunately, the WTCC has
argued that is has ``a duty to defend every claim,'' and has
litigated every single claim in Federal court. Congressional
intent was to pay claims, not to fight claims. They have spent
so far over $50 million in legal fees and $45,000 in claims to
someone who fell off a ladder and broke his arm.
There are about 10,000 lawsuits pending or 10,000 claimants
who claim to have suffered health effects from the pollution at
9/11, mostly first responders. Since FEMA reports to DHS, are
you doing any oversight on the captive insurance company to see
that it does its job?
Mr. Chertoff. I guess I have a question for the Chair. I
recognize there is a lot of latitude in Committee hearings, but
I actually thought this subject matter and the jurisdictional
basis for the hearing was immigration. I know our main
authorizing Committee has jurisdiction obviously over the whole
Department. I guess my question is, is this the kind of----
Ms. Lofgren. Actually, the Judiciary Committee does have
jurisdiction over claims.
Mr. Chertoff. So the short answer is, not having
anticipated being asked about this captive insurance company, I
am not in a position to give you an answer.
Mr. Nadler. Could you please give us an answer in the next
couple of weeks to two questions? What are you doing about
oversight of the captive insurance company? And do you believe
that Congress provided this money to fight the claims of the
heroes of 9/11?
Because essentially what they are doing is they say that
they are there to protect the city and the contractors and that
they must litigate every single claim, sort of like an
insurance company that says if you get into a car accident, we
won't pay you unless you sue us first. Not that we will
investigate it and decide whether to pay you, but automatically
you have to bring a lawsuit, which doesn't make any sense.
We have been dealing with this now for 3 years, with $50
million in legal fees, $45,000 paying out one claim. I don't
think that was the congressional intent, and it is under your
jurisdiction. You did get the money, so I hope you will take a
look at it.
Mr. Chertoff. I will find out about it.
Mr. Nadler. Thank you.
My second question has nothing to do with that, you will be
relieved to know. Going to the so-called ``rendition'' cases,
in this case the Arar case, I am sure you are familiar with
that, the Maher Arar case----
Mr. Chertoff. Yes.
Mr. Nadler [continuing]. Which was a case some people say
was another example of extraordinary rendition. The Department
has said that no, no, no, this was an expedited removal because
Mr. Arar in coming through Kennedy Airport, even though he was
coming only to switch planes to continue on to Canada, was
entering the country, and rather than enter the country, we
shipped him off to Syria, having gotten assurances from the
Syrian government that they wouldn't torture him, assurances
which were subsequently not honored.
Now, a week ago Representative Delahunt and I sent a letter
to you asking for specific information as to the diplomatic
assurances given in the Arar case and the extent to which those
assurances complied with regulations implementing the
obligations of the United States under article III of the
Convention Against Torture. Now, we have not received an
response, but we only sent that letter to you about 1\1/2\
weeks ago. But I do ask if you will commit to us to provide a
response to Representative Delahunt and myself within the next
10 days or so.
Mr. Chertoff. I guess the only question I have is, DHS did
not exist during the time of this case. So I don't know whether
the appropriate recipient of that request is the Department of
Justice or the Department of Homeland Security. I know the
legacy of INS is now in DHS, but I guess we are going to have
to sort out with the attorney general who the right person is--
--
Mr. Nadler. There are really two questions. Sort it out
with the attorney general. It may be that you should delegate
part of the answer to him, but I also ask that you commit to
providing the Committee, and what I am about to say would be
your Department, with copies of regulations or other guidance
promulgated by or applicable to DHS that as required by the
Foreign Affairs Reform and Restructuring Act of 1998, assure
compliance with the Convention Against Torture.
Mr. Chertoff. All right. Whatever is within our domain, we
will supply.
Mr. Nadler. I see that my time has run out, so thank you
very much.
Ms. Lofgren. The prior Chairman of the Committee, the
gentleman from Wisconsin, Mr. Sensenbrenner, is now recognized.
Mr. Sensenbrenner. Thank you very much, Madam Chair.
Mr. Secretary, I want to ask a couple of questions that
would require only a yes or no answer. The first one is, is the
basic pilot program relative to verification of Social Security
numbers working or not?
Mr. Chertoff. Yes. We call it E-Verify, but it does work.
Mr. Sensenbrenner. Okay. The second subset, is E-Verify
working?
Mr. Chertoff. Yes. The basic pilot is now E-Verify, so it
is the same thing.
Mr. Sensenbrenner. Okay. As I was driving in this morning,
I was listening to my favorite morning talk show.
Mr. Chertoff. NPR?
Mr. Sensenbrenner. No, sir. Guess again. [Laughter.]
Our former colleague, Fred Grandy, is more of a repository
of wisdom, now that he is not in Congress, than when he was. He
was talking about an incident in Prince William County in the
last week where they have a new program relative to cracking
down on illegal immigrants.
Apparently, the Prince William County police identified
four illegal immigrants in that county who were stopped either
for traffic offenses or something else that was relatively
minor, and the local law enforcement called up ICE and asked
them to come and pick these folks up and ICE refused. Why is
that?
Mr. Chertoff. I don't know the specifics of the case. I can
tell you in general, like everybody else, there is some limit
to resources. We try to respond to requests, but we may not be
able to drop what agents are doing at any given particular
moment and go out to respond to a call.
So we try to work with locals to find out an efficient way,
so if there are a number of people who are illegal and they
have a basis to hold them until we get to a number that we can
efficiently apprehend and remove, we work with it that way.
Otherwise, we wind up literally running from pillar to post,
and it would be hard to actually, for example, chase fugitives
or criminal aliens or things of that sort.
Mr. Sensenbrenner. Don't we expand the resources in
enforcing our immigration laws when a jurisdiction like Prince
William County, Virginia authorizes its local law enforcement
officers to check on the immigration status of people who are
stopped for other offenses, mainly traffic offenses?
Mr. Chertoff. Actually, what we try to do in the first
instance is, if they are willing to do it, is train them so
they can do some of the work themselves, and that relieves some
of the burden. Secondly, although we can take a little bit of
account of the traffic flow, there are a finite number of
agents. If we put a lot of agents in Prince William County,
they are coming out of other places.
Mr. Sensenbrenner. With all due respect, Mr. Secretary, you
don't need more agents. Here, you had local law enforcement.
They pick four people up. They called up ICE and said come and
pick them up and hopefully put them in removal proceedings, and
ICE was too busy. So it really didn't require an awful lot of
work for ICE agents to do that.
Mr. Chertoff. I guess where we are disagreeing slightly is
you still have to send a couple of agents over a distance for a
certain amount of time. I can tell you from my own experience
working with police over the years, it probably winds up being
somewhere between a half day and 1 day of work for a couple of
agents. I am not saying we shouldn't do it. I am just observing
practically that we are trying to juggle. Even with additional
resources, we still have more demand than supply.
Mr. Sensenbrenner. Do you know the message that you are
sending to local communities that want to help enforcing the
immigration laws by saying, well, what you are doing is really
a low priority for us. That is what you just said.
Mr. Chertoff. No. Let me be clear about what I said. I said
first of all, we would love to help you, train you so you can
do some of this yourself. But I find myself in the same
position in answering that question that anybody who has made a
career in law enforcement has. You are not able necessarily to
prosecute or respond to every crime.
When I was a prosecutor in New York doing drug cases, we
could not arrest every single low-level drug dealer, even
though we wanted to. There just weren't enough agents and there
weren't enough prosecutors. So we made choices about who were
the worst people and those are the people you go after. Now, as
we get more resources, we can do more and that is what we are
doing.
Mr. Sensenbrenner. I grant you that, but again listening to
what was on the radio this morning as I was driving in, the
taxpayers of Prince William County, Virginia are spending their
own money to try to identify illegal immigrants and to put them
into the judicial process so that they would be removed from
the country. In my opinion, that is an expansion of resources
on that. I believe that the election for county commission in
that county last fall, that was a major issue and the voters
reelected the people who wanted to crack down on illegal
immigration.
Now, immigration is a Federal issue. I think we all realize
that. But Mr. Secretary, you have got to do a better job of
coordinating your resources with those local jurisdictions that
want to spend their own money and their own personnel to try to
enforce the immigration law, rather than simply doing what ICE
did and that is blowing off Prince William County's officials.
My time is up and I yield back.
Ms. Lofgren. The gentleman yields back.
We would now invite the Chair of the Crime Subcommittee,
Mr. Bobby Scott of Virginia, to begin his questions.
Mr. Scott. Thank you.
Mr. Secretary, how many members of your senior staff are
with you today?
Mr. Chertoff. I guess maybe one. I do have the general
counsel with me.
Mr. Scott. Do you have other members of your staff?
Mr. Chertoff. Yes, I have some legislative staff people. I
don't know if you consider them senior.
Mr. Scott. Can all your staff stand up? Could you have all
your staff stand up, please?
Mr. Chertoff. My personal staff? Yes, stand up.
Mr. Scott. Everybody from the Department.
Thank you.
Mr. Chertoff. A lot of them are legislative affairs. We
have a press guy here and other people with specific expertise.
Mr. Scott. Thank you.
I represent an area where port security is a big deal. Some
of the port people have indicated that they are having problems
with port security grants because they have to deal with
several agencies--FEMA, TSA, DOJ--each agency with their own
particular regulations and processes. Is any effort being made
to streamline the port security grant program?
Mr. Chertoff. Yes, I think it is actually streamlined. I
don't know why you would be dealing with DOJ, unless it is a
separate grant. The grants are all done----
Mr. Scott. Okay. Let me get you some specifics, and I will
ask a more focused question. Right now, you can't use the
grants for personnel costs?
Mr. Chertoff. That is largely true. There are some few
exceptions.
Mr. Scott. Okay. Port security identification, how is that
program working?
Mr. Chertoff. We have tens of thousands of people who have
currently enrolled in the TWIC program, so it is proceeding
very well. I think 40 or 50 ports are now part of that process.
Mr. Scott. And are the IDs being issued on an expedited
basis?
Mr. Chertoff. Yes.
Mr. Scott. Consumer ID theft is a problem nationwide. Is
that under your jurisdiction, under Secret Service?
Mr. Chertoff. We share jurisdiction over that.
Mr. Scott. One of the problems with consumer ID theft is
that after the credit card is cancelled and the person's
account is reimbursed, nothing ever happens. That is why the ID
theft is such a lucrative practice. Are you pursuing consumer
ID theft cases?
Mr. Chertoff. We pursue ID theft cases in general. We don't
have jurisdiction over consumer matters per se, but in the
context of what we do with, for example, illegal immigrants, we
do have documents and benefits for our task forces. We do make
criminal cases involving identity theft. The case involving the
10-year sentence I just mentioned grew out of an investigation
involving identity theft.
Mr. Scott. Most ID theft is not even investigated, much
less prosecuted. Is that true?
Mr. Chertoff. I can't answer that. I am not in a position
to either agree or disagree with that.
Mr. Scott. Okay. On the no-fly lists or the watch lists, if
someone gets their name on a no-fly list, is there any way to
correct the information if it is not accurate?
Mr. Chertoff. Yes. There is a redress process that TSA has
that is both online and in person. The biggest challenge we
have is that under the current system, because we are not yet
into what we call Secure Flight, when we make a correction we
communicate it to the airlines. Some airlines do a good job of
changing their records to reflect the correction and some do
not. For those airlines that do not, the mistake sometimes
continues to get repeated because either the airline is
incapable or not interested in making the effort in order to
correct the problem.
Mr. Scott. Once you get the list, each airline has to
update the list?
Mr. Chertoff. Yes. The current system is that we provide
the list to the airlines and they run the list against their
manifest. What we would like to do is reverse the process. That
is what we are trying to do with Secure Flight.
Mr. Scott. Citizenship, many people who are properly
documented and want to become citizens are having to wait. What
is the wait time to become a citizen for a routine case? And
what is being done to eliminate the backlog?
Mr. Chertoff. It has gone up because we had a doubling in
the number of applications. We are in the process of hiring I
think 1,500 additional adjusters or something like that. We are
trying to deal with two separate issues. One is simply the
volume of intake, which requires us to hire more people to
adjudicate the cases and also we are trying to get from a
paper-based system to an electronic-based system.
The second, and probably more difficult thing for a
minority of people, is the background check process, because
for the FBI name check, most people go through very quickly,
within a matter of a few months, but for some if the name crops
up in an old paper-based file, the FBI has to go back and hunt
for the actual file. They are sometimes not capable of doing
that within a reasonable period of time.
So now we have put more money into the name check process
and we are working with the FBI to try to find a way to, (A)
input a lot of those records into databases so they can be
searched more readily; and, (B) we are trying to examine the
system to see if there is any way we can make it more
efficient. That is the second obstacle.
Mr. Scott. Thank you.
Ms. Lofgren. The gentleman's time has expired.
I recognize the Ranking Member of the Courts Subcommittee,
Mr. Howard Coble from North Carolina.
Mr. Coble. Thank you, Madam Chairman.
Mr. Secretary, good to have you with us today.
Mr. Secretary, I am told that there may be as many as
600,000 fugitives in the United States illegally and that there
may be as few as 30,000 beds to detain them. Let me ask you a
two-part question, assuming these figures are correct. How are
you approaching this dilemma, (A)? And has the Administration
budgeted for additional beds to address the problem?
Mr. Chertoff. We more than doubled over the last year or so
what we call the fugitive apprehension task force. Last year,
we doubled the number of fugitives we apprehended. We are also
asking for more beds in the 2009 budget which should get us up
to 33,000. The limiting factor in apprehending fugitives is not
the number of beds at this point. It is finding them.
Fugitives, not surprisingly, hide, and it is a big country.
So we have added more teams to go hunt for them, and I
think that is why we have been able to increase or double the
number of fugitives we apprehend. But again, it is the sheer
work involved in finding them that is the limiting factor.
Mr. Coble. Is the 600,000 figure approximately correct?
Mr. Chertoff. It sounds like it is about right, but I can't
verify it or not.
Mr. Coble. Mr. Secretary, put on your Coast Guard hat. You
wear many hats at DHS I know. What challenges does the Coast
Guard face in deterring illegal immigration over the Nation's
coasts and waterways? And does the Department have the
necessary tools to prosecute alien smugglers?
Mr. Chertoff. You are quite right, Congressman, that the
Coast Guard actually does play an important role with respect
to migrant smuggling. That is particularly true in the general
area of the southeast United States. We do have the plans and
capabilities, and on a regular basis we deploy them to
intercept illegal migrants who are trying to come in by way of
seas.
Most often it is not a question of prosecuting them, it is
just a question of returning them to the place from which they
came. We do have capabilities obviously if necessary to
prosecute them in the United States if we actually get a
smuggler, but my preferred thing is just to send them back
where they came from.
Mr. Coble. Do you need additional tools to aid in the drug
interdiction mission?
Mr. Chertoff. I think at this point, working with the Navy,
the Coast Guard does have and we have in the budget some
additional capabilities, does have the capabilities necessary
to perform its mission. But we do rely upon the Department of
Defense and Customs and Border Protection, and Coast Guard to
work together in terms of drug interdiction.
Mr. Coble. I am told that the Coast Guard is responsible
for a six million square mile area between the U.S. mainland
and the Caribbean, the Gulf of Mexico and the Eastern Pacific.
I don't know how they accomplish that mission. Sort of like
your bed situation with the fugitives.
Mr. Chertoff. They do a great job. There are a couple of
things that help: (A) we do partner with the Navy and that
gives us additional capabilities; second, the use of
intelligence allows us to more effectively deploy our
resources. We had a record number of cocaine seizures last
year, including one very large seizure off a boat. But it is
the ability to identify something that is coming, based on
intelligence, that allows us to put our helicopters and our
cutters where they need to be to intercept these vessels.
Mr. Coble. Thank you, Mr. Secretary.
Madam Chair, I want you to award credit to me for yielding
before the red light illuminates.
Ms. Lofgren. Credit will certainly be due.
We turn now to the other gentleman from North Carolina, Mr.
Watt.
Mr. Watt. Thank you, Madam Chair. I presume that credit
spills over?
Ms. Lofgren. It doesn't belong to the state, no.
Mr. Watt. To the rest of the state. [Laughter.]
Mr. Chertoff, Mr. Scott made a point, but I am not sure you
understood the point, nor did the record get the purpose of his
point when he asked you to have your staff stand up. Just for
the record, I think the point Mr. Scott was making is you
brought 10 staff people with you, all White males. I know this
hearing is not about diversity of the staff, but I hope you
have more diversity in your staff than you have reflected here
in the people that you brought with you. Please reassure me
that that is the case.
Mr. Chertoff. That is definitely the case. I wouldn't
assume that the ethnic background of everybody behind me is
self-evident.
Mr. Watt. I wouldn't assume that the ethnic background of
everybody behind you is self-evident either, but I think I know
an African American when I see one, and if I see one back
there, if anyone wants to stand up and volunteer and tell me
they are an African American, I hope they will do it right now.
If anybody is a female that is sitting back there and wants to
stand up and volunteer to tell me that, I hope they will do it
right now.
And I want the record to show clearly that nobody stood up
to volunteer in either one of those categories. So if you want
to make that point and be cute about it, let me be explicit
about it, Mr. Chertoff. If we are going to do law enforcement
in this country, we need to understand that there is an element
of diversity in our country that I don't see represented here.
I will take your word that it is represented more effectively
in the composition of the rest of your staff, and move on to
what I would like to really ask about.
There is a provision in 8 CFR that allows an immigration
officer on a reasonable suspicion based on specific articulable
facts that a person being questioned is in the U.S. illegally,
to briefly detain the person for questioning. One of the
concerns that people have expressed and has been reported is
the definition of ``brief'' and the definition of ``specific
articulable facts,'' which apparently has gone to ``escaping''
in your enforcement efforts.
In particular, when ICE raided Swift and Company, a
meatpacking plant in 2006, you detained hundreds of workers,
many of them U.S. citizens or lawful permanent residents. Can
you tell me how you all define ``brief'' and how you define
what ``specific articulable facts'' that create a reasonable
suspicion would be?
Mr. Chertoff. I think it is a well-settled area of the law.
Basically, in the circumstance where you have a reason to
believe there may be a large number of undocumented workers, I
think the law is clear that we have the right to ask everybody
in the facility what their status is and to briefly question
them. Now, if at that point there is reason to believe that the
answers aren't making sense and you want to inquire further, we
have the right and the legal ability to do that.
Mr. Watt. And you have the right to deny them food and
water and contact with their families and union representatives
and lawyers during that brief interval? What is ``brief''?
Mr. Chertoff. The courts, the law books, as you know, are
full of courts defining it and I don't think there is a
specific amount of time that has ever been determined, like 2
minutes or 3 minutes. I think the courts look at all the facts
and----
Mr. Watt. Well, we are not talking about 2 or 3 minutes
here. I hope you are not trying to imply for the record the
same thing you were trying to imply about the status of the
people sitting behind you. We are not talking about a 2-or 3-
minute detainment, Mr. Chertoff.
Mr. Chertoff. You are asking what the definition was.
Mr. Watt. How long did you all detain those people?
Mr. Chertoff. I am comfortable that given the fact----
Mr. Watt. Are you familiar with the case that I am talking
about?
Mr. Chertoff. I am very familiar.
Mr. Watt. How long did you detain the people?
Mr. Chertoff. I can't give you the answer to that right
now. I am comfortable that the decisions that were made, based
on a warrant that allowed us to do the searches, and that
yielded literally hundreds of undocumented workers in the
course of these raids, including many who had committed
identity thefts and therefore were victimizing innocent
people----
Mr. Watt. So you are saying that whatever you do to
innocent American citizens, if you get some illegal aliens, you
are justified in doing it. That is essentially what you are
saying.
Mr. Chertoff. I disagree. That is not essentially what I
have said. What I have said is there are well-settled legal
rules.
Ms. Lofgren. The gentleman's time has expired.
Mr. Chertoff. We follow the legal rules and they yield
positive results.
Ms. Lofgren. The gentleman's time has expired.
I would turn now to the gentleman from Virginia, Mr.
Goodlatte.
Mr. Goodlatte. Thank you, Madam Chairman.
Mr. Secretary, welcome. We are pleased to have you with us
here today.
I would like to change the subject over to agricultural
workers. I have long believed that the H2A program has been
unworkable for our Nation's farmers and is in bad need of
reform, from the artificially inflated adverse effect wage
rate, to the redundant bureaucratic hoops that farmers must
jump through to comply with the program.
I have been pushing legislation to make the H2A program a
realistic option for our Nation's farmers, and I was glad to
see that you issued regulations to grant some relief to farmers
as well. As you know, farmers seeking to use the H2A program
are those who are trying to comply with our Nation's
immigration laws and do it the right way.
Would you elaborate on the ways that you have reformed the
H2A rules and how you believe they will help our Nation's
farmers and, to what extent you can, elaborate on how those
rules are coordinated with the Department of Labor and what
they have done?
Mr. Chertoff. I think, Congressman, as you observed in the
question, a lot of this really falls in the domain of the
Department of Labor. So for example, they retooled the wage-
rate calculation so that it is more precisely tailored to the
particular geographic area and particular occupations, instead
of having a rate that was really not well suited for
determining what the actual economic realities were.
We have tried to streamline the process in terms of making
it easier for workers to change jobs without having to go
through the process all over again; to allow employers to sign
up with the program with less paperwork, and even if they
haven't specifically identified every individual worker, to
grant them a blanket approval so that they can then later
supply us with the necessary information about the workers.
The idea is to eliminate paperwork or bureaucratic
obstacles that don't really add value to the program, but have
built up over time in a way that simply, as you point out,
makes it just inhospitable to those who want to follow the law.
Mr. Goodlatte. Thank you.
I also want to note your efforts to step up enforcement of
employer sanction laws. Quite frankly, given some of the
problems in some economic sectors, I think we need to see more
focus on this. In the meantime, I wonder what advice you would
recommend that I give to constituents who are trying to play by
the rules by hiring U.S. citizens, and oftentimes paying higher
wages to them, only to see that their businesses have been
undercut by a competitor who is hiring illegal aliens to
perform the same jobs.
If you are in the roofing business and the guy down the
street is hiring people at a lower rate who are not legally in
the country, and you are trying to bid to get contracts, that
is pretty unfair competition. I have had numerous employers
contact me about this problem, and the best advice I can give
them is to contact the appropriate law enforcement authorities
to have other businesses investigated.
Mr. Chertoff. That is actually great advice. Some of the
biggest cases that we made, that resulted in convictions and
fines, as well as locating a lot of illegal workers, have been
based on tips. Therefore, I would encourage those who have
specific facts that suggest there is illegal activity, they do
report it to the authorities.
Mr. Goodlatte. Let me ask you a follow up to that. What is
the probability that when a business does that, that the
business that has been so identified will actually be
prosecuted?
Mr. Chertoff. Frankly, it frankly depends on how good the
information is. The fact that you don't like your competitor
and you decide you are going to make an accusation is not
necessarily going to resulting in a prosecution if there are no
facts. But I can tell you we have a significant number of cases
and obviously in those jurisdictions where local law
enforcement participates in the 287(g) program, that is a force
multiplier in terms of the ability to investigate these cases.
Mr. Goodlatte. And a follow up on that, what is the
likelihood that the illegal aliens that have been hired in
these circumstances will actually be deported if they do not
have previous criminal records? We have had a problem with
deportation proceedings other than for those who have committed
serious crimes. If they have committed an minor offense or
simply are illegally in the country, we don't seem to get much
action.
Mr. Chertoff. I would say my experience in the last couple
of years has been if we apprehend them, we will get them
deported. Now, some of them do raise defenses or make asylum
claims. Those generally are not successful. But I will also
tell you that we are fighting a legal headwind because we do
have a lot of groups that are resistant to the idea of
deporting illegal workers and they will take whatever tool is
available to slow up the process. But we are pretty good about
deporting the vast majority of people that we apprehend in
these kinds of operations.
Mr. Goodlatte. And are you getting increased cooperation
from local law enforcement? Is your training program working to
authorize them to detain those who are not legally in the
country?
Mr. Chertoff. Yes, we are.
Mr. Goodlatte. Should we expand that program?
Mr. Chertoff. The budget for 2009 does seek additional
funds to expand the program and I think it has worked well. I
think frankly what they are doing, like the state of Arizona
where they are using their business licensing law, reflects a
very creative approach to incentivizing compliance on the part
of employers.
Mr. Goodlatte. Thank you, Madam Chairman.
Ms. Lofgren. The gentleman's time has expired.
I would recognize now the gentlelady from California, our
colleague Congresswoman Waters.
Ms. Waters. Thank you very much. I wish we had more time. I
thank you for being here, Mr. Secretary.
We have a backlog of 145,250 applications in Los Angeles,
and we have already been told that it is going to take until
2010 to get the backlog taken care of. I would like to have
from you a report, if I may, Madam Chairwoman, to our Committee
on what and how this backlog can be speeded up and how we can
do better for people who are trying to do the right thing and
who got in line. We want to make sure that we are not putting
them at greater risk by not being able to process their
application.
So Madam Chair, if that could be an official request of
this Committee?
Ms. Lofgren. We will officially request it, and I see the
secretary is nodding his agreement to provide that report.
Ms. Waters. Thank you.
Secondly, FEMA. We have families, I guess about 38,000 that
are still living in formaldehyde trailers. The response that I
have heard about when they will be removed and placed in safer
living conditions has not been good or adequate. Have you ever
thought about talking with the President about HUD and FEMA and
others getting together and instead of continuing to spend
money on trailers that are not safe, you have all the section 8
money, et cetera, et cetera. Why don't you all just build some
manufactured housing and put people in it? It has been almost
2\1/2\ years now. Can't you do this any better?
Mr. Chertoff. I am delighted to answer that question,
although I guess I have to reserve again to the Chair, and I
think I owe this to my regular authorizers, that I think we are
not in the normal scope of what I would imagine----
Ms. Lofgren. We would note that this is beyond the scope of
the Judiciary Committee, but it is an opportunity to----
Mr. Chertoff. I will answer the question. Let me say this.
First of all, these are not formaldehyde trailers or FEMA
trailers. These are trailers sold on the open market of the
United States. We buy these and we bought these the same way
every other American who has a trailer or a mobile homes buys
them.
Ms. Waters. Do they have formaldehyde in them?
Mr. Chertoff. Like every other trailer----
Ms. Waters. Do they have formaldehyde in them? Then they
are formaldehyde trailers. I don't care who buys them. I don't
care who made them.
Mr. Chertoff. Then every trailer and mobile home in the
United States is a formaldehyde trailer.
Ms. Waters. I am talking about FEMA now. We have 38,000
families in formaldehyde trailers.
Mr. Chertoff. I am more than happy to answer the question,
but I need to be given the opportunity----
Ms. Waters. Well, I don't want an excuse, sir.
Mr. Chertoff. I am not giving you an excuse. I am giving
you----
Ms. Waters. But I don't care about others that I don't have
jurisdiction over.
Mr. Chertoff. Well, I care about making a very clear and
straight record about what the facts are.
Ms. Waters. Do you have formaldehyde? Has it been
documented?
Mr. Smith. Madam Chair, I would like the witness to be able
to answer the very good questions posed by the gentlewoman from
California.
Ms. Lofgren. And I am sure the gentlelady would like to be
answered.
Ms. Waters. I do not interfere with anybody else's
questions, and I don't want anybody interfering with mine.
Do you have formaldehyde in the trailers?
Mr. Chertoff. In every trailer as far as I know that is on
the open market, there is some formaldehyde.
Ms. Waters. I just want to know about the ones that FEMA
has.
Mr. Chertoff. Like with every other trailer.
Ms. Waters. Okay. FEMA has formaldehyde trailers. What are
you going to do about it?
Mr. Chertoff. What we are doing is this, and what we have
done over the last year is this: We are using every means at
our disposal to urge people to leave those trailers. If people
are eligible for section 8 housing, and assuming again what the
line is for that housing, because I don't know that we can jump
people ahead of the line, I would be more than happy to have
them go there. The response we have often gotten is people
don't want to move where the section 8 housing is.
Now, you might ask why don't we build more section 8
housing in New Orleans? The answer is because there is
litigation that is stopping HUD from doing that. So, therefore,
they can't build it because the courts are preventing it. I
would love to see us deal with this issue, but between the
legal tangles and the disagreements that individuals have about
whether they want to leave the trailers, this has been a much
slower process than I would like to have it be.
Ms. Waters. It is unconscionable, and it is shameful.
I have to move on to another question. What is your plan to
deal with gangmembers who are responsible for violence in the
greater Los Angeles area, who go back and forth across the
border and enter the country and leave after they have
committed murders and other kinds of gang violence?
Mr. Chertoff. First of all, I agree with you it is a big
problem. Second, we have an operation underway where we have
deported more than 3,000 gangmembers nationally. Regrettably, a
number of them when they go back to their home country sneak
back across the border again. That is exactly why we are
building fences and getting border patrol and putting measures
at the border. That is why we are working with the Mexican
government because they are trying to tackle organized crime on
their side of the border.
I would agree with you that this issue of gangmembers and
organized drug gangs is one of the biggest hemispheric issues
we now face. One of the things we could do is we could fund the
President's MERIDA initiative, which would give Mexico
additional law enforcement support so they can effectively
tackle the criminals that are on that side of the border.
Ms. Lofgren. The gentlelady's time has expired.
We turn now to the gentleman from Utah, Mr. Cannon.
Mr. Cannon. Thank you, Madam Chair.
And thanks for being here with us today, Mr. Secretary.
May I just follow up on your last comment and say that what
we are doing on our side of the border and how we are helping
work with the Mexicans on their side of the border to combat
the kind of crime and violence that is proliferating there I
think is remarkably important. I appreciate your involvement.
My state legislature just passed a bill that would direct
the state attorney general to execute one of these 287(g)
agreements that would allow for local enforcement in Utah. I
have historically been a supporter of those agreements. We
continue to have a problem with drug dealers coming from
Mexico, but our U.S. attorneys have done a fairly good job of
stanching that.
Some years ago, we had a police chief named Ortega who
wanted to do this. I was very supportive. We looked at it and
decided in the city of Salt Lake that they would not do it, but
now they are being directed. I would just like to hear from you
what the implications of that are, if many states are directing
their attorneys general to work with you. Are you going to be
able to handle that? Are there things we could do to be more
helpful in the process of combining local forces with your
forces?
Mr. Chertoff. First of all, we have asked for some more
money in the 2009 budget to continue to increase this 287(g)
process, but we also have something called ICE Access, which is
what I would call 287(g) lite. It is a way we can even without
additional money help enable local jurisdictions to assist us
in enforcing the law, or at least know how to enforce these
immigration laws.
One of our main concerns is this. If we have people who are
in custody in state and local jails, and local officials can
begin the process of starting deportation procedures while they
are in jail, we can essentially kill two birds with one stone.
These people can serve their sentences and then we can tee it
up so as soon as the sentence is over with, we can pick them
up, stick them on an airplane, and send them back where they
came from.
So again, obviously it depends on getting the budget money
for 2009, but we want to continue to build on this and we want
to encourage local communities in this respect.
Mr. Cannon. But the problem with that is that local
communities are not going to put these guys in jail. I had a
mayor who called me enraged because an illegal alien who was
driving drunk killed a couple of people in his town, and then
the end of the discussion was you have a choice. You can
prosecute him and put him in jail for the crimes he has
committed in your jurisdiction, or you can turn him over to
ICE, in which case they will prosecute the crime they have
jurisdiction over, which will result in deportation. And he
yelled at me, ``then he will be right back next week.'' And so
we have this dilemma of whether or not we put them in jail, but
putting people in jail costs money.
Mr. Chertoff. It is a worse dilemma. Sending him back costs
money. It would probably amaze people to reflect upon the fact
that in many instances we have to pay air fares to deport
people back to their home country.
Mr. Cannon. But with all due respect, that is Federal money
and not coming out of the city coffer.
Mr. Chertoff. Speaking as a taxpayer for a minute, it all
comes out of the same pocket eventually, which is the pocket of
the taxpayer.
I couldn't agree more, the solution here is to focus our
attention on making it very difficult, if not impossible, for
criminals to get back across the border.
Mr. Cannon. I am sitting here with Mr. King in front of me,
and Mr. King made a statement on the floor a few months ago
which startled me, and I came up, and he said that we had only
built 13\1/2\ miles of fence. Now, Mr. King and you and I were
on the border about a year ago, and we saw a lot of fence going
up. Mr. King said that only 13\1/2\ miles of fence had been
built, and I said, where did you get that number, Mr. King? And
he emailed his office, checked with his Texas office, and said
``I got it from DHS.'' And then I had my staff call DHS, and we
got the same number, 13\1/2\ miles of fence, which I knew, and
I think Steve probably agrees, was not the number of miles
actually built.
Mr. Chertoff. Wherever that came from, it has been
corrected. We are up to 304 or 305 miles.
Mr. Cannon. That is a lot more fence. Thank you for the
correction. We sent you a letter suggesting that you put
cameras on the border so that people could see what was
happening, or put maps on the Internet so people could see
where the fence was built, when it was built, and what is being
built currently. There is a lot of antagonism on this point.
Can we just give some information about it?
Mr. Chertoff. That is actually a great idea.
Mr. Cannon. Thank you. Ask the underlings who got the
letter and didn't respond, about what happened to it.
Mr. Chertoff. Obviously, we don't want to reveal things
that are going to allow bad people to know what we are doing,
but I think we could at least in general terms maybe put on the
Web a tracker of what we do in terms of miles of fencing and
things of that sort. That might be a very interesting and
useful thing to do.
Mr. Cannon. I have a bunch more questions, but I note that
my time is up.
Ms. Lofgren. Your time has expired.
Mr. Cannon. There is always too little time for this sort
of thing, so I yield back what doesn't remain. Thank you.
Ms. Lofgren. Thank you.
The gentlelady from California, Ms. Sanchez, is recognized
for 5 minutes.
Ms. Sanchez. Thank you, Ms. Chairman.
Secretary Chertoff, over the last 7 years, the detention of
immigrants, including the detention of children, has risen. A
2005 House Appropriations Committee report concluded that
children should not be placed in government custody unless
their welfare was in question and specified that DHS should
release families or use alternatives to detention wherever
possible.
Instead of following the Committee's recommendations, DHS
has chosen to incarcerate children, including those of asylum
seekers, in former prisons such as the Hutto Center in Texas.
This is the first time, I will note, since the internment of
Japanese Americans during World War II that families with
children are being incarcerated by the U.S. government. Why has
DHS resorted to incarcerating children, including those whose
parents have suffered persecution in their home countries?
Mr. Chertoff. Well, first of all, if somebody has a
legitimate claim of asylum, almost invariably they are
released. Now, a lot of people claim asylum that don't have a
legitimate claim of asylum. It is easy to claim it. It is not
so easy to substantiate. So the fact that someone has claimed
that they are entitled to asylum, if they have been turned
down, does not make them a legitimate refugee. It just means
that they have made a claim that has been rejected.
Ms. Sanchez. I understand that, but my concern is that the
recommendation is that they use alternatives to detention for
children wherever possible, and it appears that does not seem
to be happening.
Mr. Chertoff. There really is not a practical alternative
in most cases, because what happens is, and we actually saw
this happen at the border, the word got out very quickly that
if people pretended to be a family group, they would get
released, and then they wouldn't show up again for court. We
get a two-thirds or three-quarters absconder rate. These are
people who defy court orders to appear. So is it like any other
system that requires people to play by the rules.
Ms. Sanchez. I understand that, but we are talking about
instances in which these are in fact families and there are in
fact children that are being detained, and I am curious to
know, and it sounds like basically from what you are telling
me, that there is a plan to continue to incarcerate families
with children. My question is, will these families with
children continue to be detained in facilities, in Hutto, or
whether they be in Bucks County, Pennsylvania?
Mr. Chertoff. Well, we use both. Hutto has been re-
constructed or rehabilitated so that I think now even those who
were originally critical of the physical setting have
acknowledged that it is maybe family-friendly overstates it,
but it is appropriate for families.
By the way, the reason that children are kept there is the
old process was we separated children from their parents. The
parents were incarcerated in one facility and the children were
sent somewhere else because they obviously couldn't be left on
their own. This has I think the better approach of keeping the
families together in a more appropriate facility.
Ms. Sanchez. I would agree that keeping families together
is probably the best option. But last year, DHS was sued for
the deplorable conditions at the Hutto facility, including
inadequate sanitation and a lack of an immunization program,
and that was discovered because chicken pox had broken out in
the facility.
Some of the guards' practices at that facility included
confining children to their cells for 12 hours a day without
crayons or anything to do, refusing to allow children to use
the rest room at times, waking them up in the middle of the
night by shining lights at them, and threatening to separate
them from their parents if they misbehaved. I am just wondering
if you think that that is an acceptable way to treat children
at these facilities?
Mr. Chertoff. Again, I can't validate whether those
allegations are true or not true, but I do know that eventually
this was resolved to the satisfaction of the plaintiffs and
everybody else. My understanding is, obviously people would
prefer not to be apprehended, but that the people who
originally complained, the lawsuit has been resolved and
settled and everybody seems satisfied.
Ms. Sanchez. Let me ask you this. Prior to that litigation,
was DHS inspecting the facility on a regular basis?
Mr. Chertoff. Yes, it was. It was.
Ms. Sanchez. And yet they weren't catching these practices?
Mr. Chertoff. All I can tell you, congresswoman, is I don't
know which of these are accurate allegations, it is not in my
experience. Sometimes allegations are exaggerated in this kind
of a case. I can't judge because I wasn't there. We do inspect.
Ms. Sanchez. Ultimately, you and the Department are
responsible for the conditions.
Mr. Chertoff. And ultimately it got resolved to everybody's
satisfaction.
Ms. Sanchez. My last question is, DHS has entered into more
and more contracts with private companies, including
Corrections Corporation of America, to incarcerate immigrants
and CCA runs some of the facilities in the worst conditions,
including the facilities at Hutto and San Diego. Do you think
that private prisons are less accountable than public prisons
about their daily operations?
Mr. Chertoff. No. One of the reasons we contract out is
because our need for bed space fluctuates depending on
conditions in particular parts of the country. There is no
point in us building Federal facilities that will be vacant.
That would be a waste of the taxpayers' money. Sometimes we
contract with local county and state facilities. Sometimes
those entities themselves contract with private facilities.
I think that they are held to certain standards
contractually under their requirements. I think, for example,
Hutto now has actually cured some of the issues that were
complained about.
Ms. Lofgren. The gentlelady's time has expired.
I recognize the gentleman from California, Mr. Issa, for 5
minutes.
Mr. Issa. I thank the Chair.
Just like my predecessor here in questioning, I will run
out of time before I run out of questions, but I would like to
first of all ask, the array of dark-and light-haired people
behind you, are most of them political appointees?
Mr. Chertoff. Probably some are and some aren't. I have a
Coast Guard captain behind me who is my military aide. I have
the leg affairs people, and some of them are and some of them
are not. We have some career people from CIS.
Mr. Issa. So these people, the majority of them apparently,
got to the positions they are and are reportable to you because
on a merit basis, they rose to the top of their selected areas.
Mr. Chertoff. That is exactly right. And during my tenure,
we have both in the political and in the career path, elevated
a very diverse group of people to leadership positions in the
Department.
Mr. Issa. I want to commend you on that, and I want to
obviously at the right time and right place look into that
further as appropriate. I certainly don't want this hearing to
appear as though we are disparaging people who through 15, 20,
30 years of service have risen to these positions, that somehow
because of the color of their skin, their merit is diminished.
I don't think Congress meant to say, and I don't think the
previous people meant to say that.
As political appointees, as a Member of Congress, I have
political appointees. My entire staff is at my whim, and I
appreciate that they may be disproportionately home state or in
some other way similar to my politics. But for those who serve
not at the whims of the President, it is gratifying to see that
in fact merit matters.
I don't want to dwell on the issues that we have dealt with
in other Committees long, but isn't it true that the vast
majority of the people 2\1/2\ years later still in trailers,
are in fact not reporting problems with formaldehyde? That that
was, although regrettable, not 100 percent, and that even in
the hearings that you, of course, were made aware of, many
people when finding an unacceptable trailer, got a second
trailer and it was acceptable. Isn't that true?
Mr. Chertoff. Well, yes. And what is true is, there was a
range of findings, and I can't tell you that these are out of
line with what you find in the industry in general. What I can
tell you is last summer I and the head of FEMA announced to
everybody, if you don't want to be in a trailer, we will move
you to someplace else. We begged people to leave trailers.
People resisted leaving trailers. We are trying even harder to
get them out of trailers. Some of them don't want to leave
their trailers.
Mr. Issa. Just start charging them rent. It will change
their tune.
Mr. Chertoff. You know, some people, and particularly those
who are in trailers on their personal property, have reasons to
want to stay. I can't tell you there is no medically safe
level. For all I know, there is formaldehyde in this room.
Maybe I should be asking that it be tested before I come into
testify.
All I can tell you is I think it is well past due to get
people out of this temporary housing, and we are working very
hard to do it.
Mr. Issa. I appreciate that. If you don't mind, to the
extent that you have information that can be readily made
available to the gentlelady from California and to myself,
because I serve on the Committee that has been looking into
this, the measures you are taking going forward in purchasing
in the future would be appreciated. Because our hearings didn't
just show formaldehyde. Obviously, they showed a propensity for
mold and mildew and other things, which I was not shocked to
find out you have in Louisiana.
Mr. Chertoff. I will tell you, I have announced that we are
not buying trailers anymore. So that is going to take care of
that problem. The issue of mobile homes is more complex, and I
might add, many people in the United States live in mobile
homes. So I suggest that Congress carefully study the
implications of this issue as we move forward.
Mr. Issa. Just two more questions. The first is, I am sure
you are aware that the new U.S. attorney in San Diego has done
a huge about-face and is doing prosecutions of coyotes in large
numbers to help with the border enforcement effort. How is that
impacting border security in the San Diego area where I
represent?
The second one is more complex, and I think it directly
goes to this Committee's various works over the years. Many
people who are in the process of gaining citizenship complain
about two problems. One is, sometimes unaware and sometimes
perhaps aware, they leave the country for a period of time that
is outside of the current rules that Congress has set. That
then catch-22s them when they go to apply and they essentially
re-set for another 7 years.
If Congress took action to allow greater flexibility in the
process for departure from the U.S. that is not inherently
contrary to their intent to become valid U.S. citizens, would
that help you? That would be action that this Committee I
believe would have to take to move it up.
Last but not least, if we authorized a period of time prior
to full qualification for the citizenship application so that
you had, let's say, an extra 2 years before their statutory
period in which they can become citizens--in other words, we
moved up the application date earlier than the allowing date--
would that also make your job more effective? I realize I am
giving you three questions. Some of them you may have to answer
for the record.
Ms. Lofgren. And the gentleman's time has expired, so a
very prompt response would be necessary.
Mr. Chertoff [continuing]. Prosecutions are enormously
helpful. They have a very, very good deterrent impact. I am
pleased that we are getting more of those.
Generally speaking, if we have an ability to work with
Congress to clean up some of the anomalies, we would welcome
the opportunity to do that. You always have to be careful about
unintended consequences, but I think we would welcome it. We
are living with some of the unfairnesses that are unintended
consequences of prior reforms, and if we could clean those up,
I think it would help everybody.
Mr. Issa. Thank you.
And I thank the gentlelady, who I know is very interested
in working on those issues.
Ms. Lofgren. I thank the gentleman, and I hope that we can
follow up on a bipartisan basis and do some improvements on the
existing immigration laws that in some cases are a little
irrational.
I recognize now Mr. Cohen, the gentleman from Tennessee.
Mr. Cohen. Thank you, Madam Chair.
Mr. Secretary, on the 29th of January, a letter was
addressed to you by four Members of this Congress--Mr. Smith,
Ms. Horono, Mr. Johnson and myself--expressing concerns about
the REAL ID law--privacy issues, cost issues, and just the
basis of the arbitrary date chosen, May 11, to punish states
that haven't fallen in line with the requests of the Federal
Government. We have not received a response to this letter. Are
you familiar with the letter? Or should we blame the postal
authorities?
Mr. Chertoff. I am sure that there is a response being
worked on because we have gotten much better at turning these
around more quickly. But I am certainly familiar with the
issue, and I can tell you, as we publicly announced, we cut the
cost of this program by three-quarters.
Mr. Cohen. Let me ask you, before you go on, are you sure a
response is being prepared? This has been 1\1/2\ months. Is
1\1/2\ months the time that you are considering better? Does
one of your staff members know about this letter? One of the
gentlemen does know.
Mr. Chertoff. It depends when it arrived.
Mr. Cohen. Can this gentleman tell us if the letter is
being responded to?
Mr. Chertoff. I don't know that he is in a position to tell
us.
Mr. Cohen. He seems to think he is.
Mr. Chertoff. I am going to lay down the law here. If a
staff member is to be called to testify, they should sit at the
table and be asked to testify. I am not going to have everybody
I bring into a hearing room subject to questioning. I spent too
many years in a courtroom to let that kind of thing go on.
Ms. Lofgren. The witness is correct. He is the witness and
the questions do need to be directed to him. Mr. Cohen, if you
would----
Mr. Cohen. Thank you, Madam Chair.
He may be correct, but when you don't answer a letter from
four Members of Congress in 1\1/2\ months, there is a problem.
Mr. Chertoff. Well, I don't know when the letter arrived,
but I would say certainly we try to turn the answers around
within 30 days. So if it was sent on January 29, by my
calculations----
Mr. Cohen. January 23.
Mr. Chertoff. By my calculation, depending on when it got
to the Department, we may be slightly over 30 days, but I don't
think we are much over 30 days.
Mr. Cohen. Why did you pick May 11 as your date?
Mr. Chertoff. I think it is in the statute.
Mr. Cohen. You think it is in the statute.
Mr. Chertoff. Yes, I think it is.
Mr. Cohen. If I am correct, it is not, but I may be wrong.
Does anybody here know if that is in the statute?
Mr. Chertoff. I believe it is. I could double-check it. I
think it is a statutory deadline. I think it is based on when
the original bill was passed or whatever.
Mr. Cohen. The REAL ID law has certain issues concerning
privacy. Have those issues been addressed since it was passed?
Mr. Chertoff. I believe they have, and I believe the system
we have worked out actually increases the privacy protection.
This will actually be a net-positive for privacy of American
citizens compared to where we are now.
Mr. Cohen. I have a lot of questions to ask, Madam Chair,
but I would like to ask the secretary if he would consult with
his staff and you can answer the question, if you would be so
kind, but if your staff member who has come here has the answer
to whether or not that letter is being responded to, I think it
would be pertinent.
Mr. Chertoff. All right. If you will excuse me----
Ms. Lofgren. We certainly will excuse the secretary to
consult with his staff.
Mr. Chertoff. Here is what I am informed. I am informed
that it arrived on the 31st and I believe the answer was signed
out today.
Mr. Cohen. Thank you, and I look forward to the response.
Let me ask you this, sir. One of the issues and areas of
your jurisdiction is to minimize the damage and assist in the
recovery from a terrorist attack. I know that public hospitals
is not under your jurisdiction, however our public hospital
system is in great danger.
Mine in Memphis, Tennessee, the Med, and most public
hospitals throughout this country are not well funded. Have you
thought about the need for Homeland Security to have funding
possibly through Homeland Security to help see that we have a
series of public hospitals that could be available in case of a
terrorist attack?
Mr. Chertoff. I agree with you that an important part of
not just a terrorist attack, but a natural hazard like the
tornadoes we had in your area, which I was at a few weeks ago,
or a pandemic flu, does require surge capability from the
public hospital system. That is in the domain of HHS. I
wouldn't want give a Department response for doling that money
out because it is not our expertise area. But I agree that has
to be part of the general plan.
Ms. Lofgren. The gentleman's time has expired.
Mr. Cohen. Thank you.
Ms. Lofgren. I would remind Members that the best questions
would be for those that are within the Committee's jurisdiction
and within the Department's jurisdiction.
Mr. Pence is now recognized for 5 minutes.
Mr. Pence. Thank you, Chairman.
I want to thank the secretary for being here. I want to
thank you for your service to the country. My little family
sleeps a little better at night because you are the head of the
Department of Homeland Security, and I mean that very
sincerely. And I think that is a bipartisan view on Capitol
Hill.
Mr. Chertoff. Thank you. I appreciate that.
Mr. Pence. I am going to bring up a topic that I think, I
wasn't here for the Ranking Member's remarks or the Chairman's,
so I want to defer to them, but I haven't heard other
colleagues bring up this issue. We have talked about some
pretty interesting topics in this hearing so far. I would like
to talk about terrorism, the threat of terrorism, and the
threat of a terrorist attack on the United States of America,
which if memory serves, is why we created this Department.
I know that you and I have worked together on issues about
immigration reform. Border security falls within the purview of
the Department. That is important. It is something of an object
lesson for me to see the secretary of a Department that was
created to focus on protecting us from another 9/11 being
questioned appropriately--and Members of Congress can question
you on any topic--being questioned just the way any other
Department head would be questioned.
This kind of confirms my limited government views and my
general view of bureaucracy as a whole. I would like to focus
you on that particularly, Mr. Secretary. I was in the Kunar
Province of Afghanistan about 36 hours ago. I met with
President Karzai. I met with our commanders down-range in
Afghanistan and Iraq. There is extraordinary progress in Iraq,
as you know well, with 60 percent reduction in violence in
Baghdad and all over the country actually.
But my sense is that we are having a great deal of success,
particularly in Iraq, driving terrorists and insurgent and al-
Qaida elements out of the center part of the country. Mosul
appears to be still a focal point and a problem. I was there
Sunday in Iraq when President Ahmadinejad arrived and
articulated almost Washington-like talking points, saying that
America needs to get out of Iraq. It certainly would be in his
interest if America was not in Iraq.
I guess my question to you is, as someone who I respect
more than anyone other than the President on these topics, is
the threat of a spring counteroffensive in Afghanistan that is
very real. The progress that, other than by the political
class, is not being denied by anyone, including the pages of
the New York Times, how does that impact our threat assessment
here?
It does strike me, and in Indiana we identify with the view
that if we are fighting them there, we are probably not going
to have to fight them here. But the thought does occur, as we
succeed there, is there a concern in your good offices that al-
Qaida and its patrons in places like Syria and Iran, growing
frustrated with their ability to project force in that region,
may be more motivated to project violence here.
I know that is somewhat counterintuitive. Some of us are
celebrating the progress of stability and security and
political progress in Iraq, and others are denying it. But
regardless of that, you want to be pleased about that, but it
struck me that we have a lethal enemy who desires to do us
harm.
We are driving them from the center of the central front in
the war on terror, which is Baghdad. Does that create in your
mind a greater possibility of threats against U.S. interests
abroad, embassies--the USS Cole comes to mind as a type of
incident about which we should be concerned. And of course,
here at home.
Mr. Chertoff. You know, I don't want to take up the whole
hearing on this. Let me give you three brief points in answer
to that question. The first is I think that there has never
been a drop in the determination and the intent of the enemy to
attack us here at the homeland. That is still to al-Qaida, in
my view, that is the home run, the number one thing they want
to do.
The second point is they have not succeeded in doing it
since 9/11, largely because of the strategies we have
undertaken: (A) to fight them over there, to put them off
balance and to keep them focused on their near-term problems;
and second, because of the steps we have taken to make it
harder to get into this country and carry out an attack. Of
course, you see attacks and efforts in Europe, which reminds us
that there is still an intent, and it is certainly not that
they have decided they like the United States. So it is what we
have done to defend ourselves.
Ms. Lofgren. The gentleman's time has expired, so if we
could just wrap up.
Mr. Chertoff. The third piece is this. I think it is
terribly important to recognize that we are having a success in
Iraq which is under-noticed. Al-Qaida in Iraq is really on the
ropes and it has been the people that they thought were their
constituency that have turned on them. That is a huge
embarrassment and a problem for al-Qaida in general, because
they are having trouble explaining why, if they have the wind
at their back and they are the wave of the future, why their
own people are rejecting them. That ultimately, in my view,
makes us safer.
Mr. Pence. Great.
Ms. Lofgren. The gentleman from Massachusetts, Mr.
Delahunt, is recognized.
Mr. Delahunt. Thank you, Madam Chair.
Mr. Secretary, how many al-Qaida in Iraq, I hear varying
estimates in terms of numbers, anywhere from 800 to 2,000. Give
us your number.
Mr. Chertoff. I didn't come prepared, since we kind of got
completely off the topic of immigration.
Mr. Delahunt. I am going to get back----
Mr. Chertoff. I can't say I came prepared with a number. I
don't think it is arguable, however--and they pretty much
admitted it--that they are suffering reverses and that the so-
called ``awakening'' or the Sunni tribes have really turned on
them. Not that they are done, not that they out of----
Mr. Delahunt. A number, I would appreciate--a guess.
Mr. Chertoff. I wouldn't do that----
Mr. Delahunt. Okay. Let me talk about the same subject,
terrorism and threats, and when we make mistakes, because we
want to take steps so that we ensure that we don't make those
mistakes again. Congressman Nadler indicated earlier that he
and I have an interest in this case of Meher Arar. I would like
to go through the facts as I know them, and end with a question
and a request to you.
My understanding is on September 22, 2000, Mr. Arar flew
from Deir ez-Zor to Montreal with a stopover at JFK. He was on
his way back to Montreal. He was detained and interrogated for
hours by New York police, along with the FBI, and detained in a
cell. He was then sent to a detention facility in Brooklyn,
where he was also interrogated for hours. An INS official
informed him that they would like him to voluntarily return to
Syria. He said no, he wanted to on to Canada, where he was a
citizen. When he asked for an attorney, he was told that he had
no right to an attorney.
On September 28, he was given a document saying he is
inadmissible under section 235 because he was a member of al-
Qaida. He continued to ask for an attorney and a phone call,
but his requests were denied. On October 2, he was permitted a
2-minute phone call to his mother-in-law in Ottawa, and he told
her that he was afraid that they were going to send him to
Syria. On October 4, he had a visit from the Canadian consul.
He told her that he is frightened that he will be deported to
Syria. She reassured him that that would not happen.
On October 6, he was asked why he does not want to go to
Syria, and he responded that he was afraid that he would be
tortured there because he didn't do his military service before
leaving Syria when he was a teenager, and that he is a Sunni.
On October 8, he is read a document saying that they decided,
based on classified information, that they think he is a member
of al-Qaida and that the INS director has decided to send him
to Syria. He protested, saying that he will be tortured there,
but that is again ignored.
What I would request from you, and Chairman Nadler
indicated earlier, that we forwarded a letter to you. But what
I would request from you is not classified information, but
simply how the decision was reached to send him to Syria,
rather than Canada. Maybe you have information at your disposal
here. I don't presume you do. But I would appreciate your
personal review and a commitment from you, without disclosing
any information that is classified, as to why the decision to
Syria rather than Canada.
Mr. Chertoff. I think there is an inspector general report
in the works on this, because I think it was requested. I don't
know if it has been finalized or not. I think that is probably
going to be the definitive investigative conclusion----
Mr. Delahunt. There is an inspector general's report, in my
understanding, but portions of it are classified. What I am
looking for is something very discreet and specific: Why Syria
rather than Canada?
Mr. Chertoff. I think what I am going to have to do is, and
obviously you can see the classified portions.
Mr. Delahunt. I have not seen them, no.
Mr. Chertoff. And I don't control the IG's releasing this,
but I presume he will show you the classified portions.
Ms. Lofgren. The gentleman's time has expired.
Mr. Chertoff. Again, I have to assume the answer to the
question is in that report. I could have someone read the
report and extract it for you, or direct you to the pages, but
I think we are ultimately going to wind up taking you back to
that report as the investigative finding.
Ms. Lofgren. If I may, I think the request is
straightforward and if you could respond subsequent to the
hearing, that would be appropriate.
The gentleman from Iowa, the Ranking Member of the
Immigration Subcommittee, is recognized for 5 minutes.
Mr. King. Thank you, Madam Chair.
Mr. Secretary, I appreciate your testimony. I would point
out that you have gone down and done hands-on fence
construction on the border, and I have watched you weld a bead
on a vertical landing mat. So thank you for the hands-on
portion of this.
On that fencing, just quickly, I want to touch a
clarification. The data that I have from your Department is
dated February 6 on fence construction. It concurs with your
testimony, and I am looking at that data now. It says primary
pedestrian fence, 167.5 miles, identical to your testimony.
Secondary fencing, I don't think you were specific on that,
says 31 miles. And then tertiary fencing, the triple-fencing,
says seven miles as of February 6. Tertiary fencing, even
though that may be the dinosaur era, means triple-fencing.
I wanted to ask you, as we looked at that fence down there
in San Luis south of Yuma, I asked the question there, if the
triple-fencing had been defeated by anyone at that time? And
the answer I received from yourself and Chief Aguilar was no,
not at that point. Are you aware of any case where triple-
fencing has been defeated?
Mr. Chertoff. No. But as I said earlier in response to a
question, I think a lot of times anything can be defeated. The
question is, it is like a car, they look for the car that is
easiest to break into. So they will move along the border and
as we build up in other parts, they are going to come back and
take another run. But the key is that the Border Patrol is in
the area, so it is not----
If we left it alone, people would get over it. What it does
is it slows you up, so we can get there with the Border Patrol,
and in an urban area where the Border Patrol is posted, that
gives us the ability to get people before they vanish into the
town, which is what we are concerned about.
Mr. King. So statistically, though, I understand they are
not going to go through the most difficult portion, and triple-
fencing is the most difficult portion, and as we continue to
build that out, it raises the transaction costs of coming into
the United States. It gets more difficult, and that is the
value of it, in my estimation.
I know that the number of interdictions on the border has
dropped over the last year. The previous year, if I remember
right, was 1,188,000. I think the year before was 1,157,000,
and you are about 880,000. I recognize that you view that as
less border attempts meaning less interdictions, but I will
point out that we have Border Patrol testimony before the
Immigration Subcommittee in this room that has testified that
they think they stop one-fourth to one-third of the attempted
border crossings. I ask if you could comment on that.
Mr. Chertoff. I have actually heard a different figure. The
figure that I have heard is that basically we think we
apprehend two for every one that gets in. I have asked the
question about the metrics which show about a 20 percent
decrease. They look at some collateral issues, too. They look
at what is going on south of the border in terms of staging
areas. They do some validation by, if you can believe it,
literally counting the footsteps in certain areas.
So I am always careful to say the 20 percent drop is not a
precise figure, but I think it is pretty indicative of the fact
there has been a positive movement.
Mr. King. If I could say I have been along that border a
number of times, and I have passed by those footsteps without
them stopping to count either, so there could well be a number
that is higher than that.
But I wanted to go to the E-Verify portion of this. It
hangs in front of this Congress to be addressed for
reauthorization by fall. The progress has been made there of
new employees that are legal to work in the United States, 99.4
percent effectiveness; 99.9 percent of native-born workers are
authorized immediately; and the longest delay I can create in
that is 6 seconds. So ``immediately'' is within that period of
time.
I am going to ask you if you will support reauthorizing E-
Verify to make it permanent, and also to allow employers to
utilize it for current employees as well as new employees.
Mr. Chertoff. Yes, I think we would support that.
Obviously, we have to look at the details of the specific
legislation, but I think the program has not only proven itself
to be effective, but employers want it. That is why they are
signing up. That is the best test of success, the marketplace.
Mr. King. Thank you.
And then my concluding question is this, and it reflects
off of what Mr. Pence raised from a national security
standpoint. We have had persons of interest from nations of
interest that have been interdicted on all of our borders and
our ports of entry, but in particular with our southern border
where we have a lot of traffic across that.
Can you inform this Committee, if it is unclassified, the
numbers of persons who are persons of interest from nations of
interest who have been interdicted at the border, that number
since September 11?
Mr. Chertoff. I can probably supply you with the answer,
but I need to make one thing clear. ``Persons of interest'' is
different than ``nations of interest.'' ``Nations of interest''
simply means a nation that has been associated with terrorist
activities or training. It does not mean necessarily that, and
in fact in the vast majority of cases, it doesn't mean that the
individual is suspected of being a terrorist.
Ms. Lofgren. The gentleman's time has expired.
Mr. Chertoff. But with that caveat, we can probably get you
that information.
Ms. Lofgren. The request is for later information. I am
advised that we are going to have a vote in about 10 minutes,
so I am going to ask people to----
Mr. King. Madam Chair, if I could just ask your indulgence.
I think the gentleman was within 10 seconds of prepared to give
me that answer.
Ms. Lofgren. I thought he was going to respond later.
Mr. Chertoff. With that caveat, we can provide the number.
I don't have it off the top of my head.
Mr. King. Fine, thank you.
Ms. Lofgren. The gentleman from Georgia, Mr. Johnson, is
recognized for 5 minutes.
Mr. Johnson. Thank you, Madam Chair.
Secretary Chertoff, one of the functions of the Department
of Homeland Security is the Transportation Security
Administration, under whose authority employees are hired at
various airports throughout the land to provide baggage
screening. These employees are on the front line in this war
against terrorism to make sure that we don't have another 9/11
scenario unfold with the use of planes as offensive weapons for
terrorist purposes. What they do is screen baggage.
Mr. Secretary, I have had an opportunity to tour first-hand
the security screening facilities at my hometown airport, which
is Atlanta's Hartsfield-Jackson Airport, the busiest airport in
the Nation and the world. I think by and large the employees
out there are doing an excellent job.
However, they do complain about employment conditions out
there. They complain of a culture of favoritism, a culture of
racism and sexism in the areas of job assignments and
promotions. They complain of harassment when they speak out
about job conditions that make the job more difficult.
They have problems with the performance accountability and
standards system which is supposed to be a standardized
employee evaluation and promotion system, which they say is
being inconsistently and arbitrarily applied. It is biased
against non-management employees. They talk about being unable
to get the pay raises for which they have received promotions
into job which call for pay raises.
They talk of problems on the job with on-the-job injuries
because they are having to pick up large bags for screening
purposes. They talk about lost paperwork on their workers comp
compensation claims, and they also talk about a lack of light-
duty jobs that they can perform when they are medically in line
for light-duty jobs, and there are no light-duty jobs to be
performed and then they end up losing their jobs. They talk
about having to pay for parking, and parking at the airport is
a tremendous expense.
So basically, a decline in morale, a bad staff morale at
the airport in Atlanta, even though they try to do as best a
job as they can to keep Americans safe.
My question, sir, is are the working conditions and
security environment at the Atlanta Hartsfield-Jackson Airport
better or worse than that of airports throughout the country?
Mr. Chertoff. I am not particularly familiar with Atlanta
Hartsfield. I have actually visited with screeners at airports
all over the country. I can tell you that the administrator of
TSA, Kip Hawley, spends a great deal of time focused on the
issue of morale.
First of all, we all agree the screeners do a remarkable
job under very difficult circumstances, not least because of
the congestion with air travel--airports are not necessarily
happy places for passengers these days. Some of the things he
is doing is this. He is broadening and expanding the career
path for TSA screeners.
Mr. Johnson. These are Federal employees, too, are they
not?
Mr. Chertoff. Correct. He is talking about, for example,
allowing them to specialize and take training in behavioral
detection techniques, document and verification checking
techniques. This has a couple of positive benefits. First of
all, it opens up the idea of being a screener as a career path
where you advance, rather than stay where you are.
Mr. Johnson. These employees certainly look at this job as
a place where they should be able to advance, and they are
motivated to advance, but they feel that the apparatus and the
process that is in place for advancement is not working. I
would implore you to take a look at it.
Mr. Chertoff. I certainly will, and I will raise it with
Administrator Hawley.
Mr. Johnson. All right. Thank you so much.
I yield back.
Ms. Lofgren. The gentleman yields back.
I recognize the gentleman from Florida, Mr. Feeney, for 5
minutes.
Mr. Feeney. Thank you, Madam Chairperson.
Secretary Chertoff, Florida is a great tourism state. One
of our concerns is the visa waiver program and other ways that
people come legally to the United States. Recently, America has
been branded widely throughout the world as the least
attractive place to travel because of hassles and security
issues.
I wonder if at some point in the near future you could give
us a report of how you are accommodating the need for enhanced
security since September 11, but also facilitating actual
reasonable ways for people that are here. It is not just
tourism, it is international businesses that are deciding where
to locate their business, and increasingly America is an
unattractive place to do business. We are holding up
businessmen and tourists from London, while our border goes
unsecured.
Would you be willing to get an updated to myself? I know
Congressman Keller is interested and probably other Members of
the Committee.
Mr. Chertoff. Yes, we can send you something that will
explain what our approach here is. I agree with you. The good
news is we keep refining our procedures so we are more able to
focus on the people we want to keep out and less hindrance to
the people who are legitimate travelers.
Mr. Feeney. It is a two-pronged effort. Number one, we have
to have reasonable access for people with legitimate purposes
coming here. And number two, then private sector tourism folks
want to go out and spread the word that we are no longer the
problem we used to be.
Mr. Chertoff. Yes, I am glad to do that.
Mr. Feeney. But we have to make sure we have the problem on
the front end fixed before we start bragging about having fixed
it.
Secondly, I want to add my comments. I was out for my
leisurely 4-mile run this morning when I listened to the same
radio show. Prince William County has spent $26 million of its
own money trying in part to apprehend and then put behind bars,
until you guys can come pick them up, illegals. The mission
statement for your Department says we will lead the unified
national effort to secure America. And it goes on to say later
that we will ensure safe and secure borders.
It is hardly a unified effort if the locals that are trying
to do enforcement--and this is happening in various ways
throughout the country. People are terribly frustrated at the
Federal Government's real and perceived failure to do its job
to secure our borders. I think it is a horrible message. If we
can't go pick up four guys that have been apprehended thanks to
the extraordinary efforts of law enforcement, I am really
disappointed. I want to echo Congressman Sensenbrenner's
comments.
With respect to the border, Secretary Chertoff, a few years
ago, I have to tell you. I came to Congress as an agnostic on
immigration. There are some great things about immigration--the
shining city on the hill, opportunity for people, the
relatively inexpensive labor. There are a lot of industries and
we just can't find employees. I recognize all that.
But after 9/11 and the huge burdens on our social welfare
system--education, hospital systems--I started becoming a very
quick skeptic about the job the U.S. was doing. I sat in on a
question where our colleague, John Carter from Texas, asked Mr.
Rove about the problems of the totally porous border, and
essentially Mr. Rove denied that there was a problem.
I went sometime after that to Arizona. I am going to have
my staffer, if I can, give you a map and just three of the 100
photos I took down in Arizona, and I also ask for permission to
insert these in the record.
Ms. Lofgren. Without objection.
[The information referred to follows:]
Mr. Feeney. The map that you see, one of the places I
visited was a place called Casa Grande north of Route 8, which
is 70 miles inside the American Arizona border. What I found
there was a machine gun nest that had been occupied
periodically, based on a queue, and it was the 13th of the
series of nests that drug and individual smugglers were using
on a repeated basis.
What I was disturbed and shocked to find is that Homeland
Security, ICE, Border Patrol--nobody else would take me up
there. They are simply not doing their job, in my view, or that
is what it looked like. I think Congressman King will agree
with much of that. The only group doing its job when I was
there was the environmental agency, the Bureau of Land
Management.
They have to clean up the mess. The cost of bringing an
illegal immigrant over the border had dropped because there
were these various organizations willing to do it. It had
dropped from about $3,000 a head to $1,500 a head. For Middle-
Eastern men, however, the price was about $35,000.
What have you done since I visited the border, number one,
to make sure that the terrorists that Steve King just talked
about, but also the 12 million to 20 million people that are
already here are no longer--and by the way, we got pictures 78
miles inside the border of dope. What has been done since I was
there?
Mr. Chertoff. When were you there?
Mr. Feeney. This would have been 3 years ago.
Ms. Lofgren. The gentleman's time has expired, so we are
going to have to ask for a very short monosyllabic answer.
Mr. Chertoff. I could send you a lot as part of a long
answer. I think we have transformed what we have done in 3
years there. I think in 3 years in terms of tactical
infrastructure, capabilities, and almost doubling the Border
Patrol, we have done a huge amount to change it.
But here, I am going to ask for your help. As I try to
build a fence and I try to put this stuff up on the border,
what I hear is I hear complaints from environmentalists that
the fence is going to interfere with the movement of some kind
of animal or something. And I say, well, wait a second. It has
got to be better for the local habitat to stop drug dealers
from coming in with drugs or using vehicles.
Ms. Lofgren. Mr. Secretary, that request is noted. I am
going to move this along to the gentleman from California, so
Mr. Gohmert will also have a chance to ask his questions.
Mr. Schiff?
Mr. Schiff. Thank you, Madam Chair.
Thank you, Mr. Secretary, for being here. One of the areas
that I am most concerned about in terms of our homeland
security is the area of nuclear terrorism. I would like to ask
you what efforts the Department is making, what additional
assistance you need on two fronts: One, in keeping the material
out of the country in terms of the development of the portal
technology or other efforts.
I think probably the most significant thing we can do to
protect ourselves is to prevent the wrong people from getting
the material in the first place. That is probably beyond your
purview, but if you could talk about efforts we are making to
keep it our of the country. I know there has been some
disappointment with the progress of the technology.
But second, I am also very concerned about the nuclear
material that is already in this country. Really, I am talking
about the radiological material that is in our hospitals and
other locations that is too accessible and could be used for a
devastating radiological attack. So if you could address in
open session what efforts you are making, what help you need,
what Congress can do to assist you in those efforts.
Mr. Chertoff. I am happy to, Congressman. It is true that
the first line of defense is overseas, working with other
countries, and through the antiproliferation security
initiative, to prevent the materials from getting in the hands
of terrorists in the first place. That is obviously, a lot of
that lies in the domain of other departments.
From our standpoint, obviously, keeping people out who are
terrorists is critical, and we are doing a lot of stuff, as I
have explained, about that. We are currently scanning virtually
100 percent of all containers that come in from overseas for
radioactive or nuclear material. That is as opposed to zero
percent 5 years ago. That is a big step forward.
We are beginning, as was announced in the paper today, we
are implementing a new initiative to screen crews and
passengers and ultimately to scan private aviation as it comes
in from overseas, so people don't put a nuclear bomb on a
private jet and fly it into the United States and detonate it.
That is something that we have underway, again as a way of
keeping the bad stuff out of the country.
Similarly, we have a small-boat strategy that the Coast
Guard is developing, after taking appropriate input from
boaters, so that we don't have people using private boats to
smuggle nuclear weapons in. So we have a comprehensive approach
both to keeping dangerous people and WMD-types of materials out
of the country.
The last piece, but you are quite right and it is
probably----
Mr. Schiff. Mr. Secretary, before you get to the
radiological material, did you say you are screening 100
percent of containers coming in for nuclear material?
Mr. Chertoff. Virtually 100 percent.
Mr. Schiff. And what kind of accuracy does our technology
have? If you have nuclear material in a lead container----
Mr. Chertoff. Shielding is a problem. Now, if we have a
basis to put a container through an X-ray machine, we can
detect the fact of the shielding. So we have to use a
combination of the scanning which detects active radiation, and
also the intelligence that we have about the nature of the
containers to determine which ones ought to be X-rayed as well
as scanned. The problem with X-raying every container is you
wouldn't be able to allow the driver to drive the truck through
because the driver would get irradiated. So there are some
technological things we are addressing to try to deal with that
issue.
Beyond that, we are also doing more scanning overseas. We
have three overseas radiation scanning, combined with X-ray and
scanning operations overseas, including in Pakistan, because we
are trying to do more of this before the container actually
even comes into the U.S.
Just so I don't run out of time, the last piece on the
radiological stuff, which is often under-noticed, that you are
quite right about, we are beginning this year and working with
the medical community, rolling out a plan to retrofit, working
with the Department of Energy, existing medical machines that
use this kind of radiological material so that it is very much
harder to remove that radiological material from the machine. I
don't want to get too specific, but the idea is that over the
course of the next fiscal year, we will retrofit machines that
use a certain kind of radioactive material so that you can't
just take the material out.
Mr. Schiff. Do you have the resources to do that, or do you
need us to work on that with you?
Mr. Chertoff. I think we do have the resources. Frankly,
the companies that actually do this are going to have to do the
work. The cost per machine is pretty modest, so I think it can
be handled by the hospitals themselves. We are also partnering
with the Department of Energy. So I think we have the
authorities. We do have money in the budget for this, so we are
funding the necessary part on our end, and just to complete the
answer, we are trying to work with the industry to actually----
Ms. Lofgren. The gentleman's time has expired.
Mr. Chertoff [continuing]. To do actually a different kind
of radiological material that is not susceptible to being made
into a weapon. That is the more long-term solution.
Ms. Lofgren. The gentleman's time has expired. Before going
to the Ranking Member----
Mr. Chertoff. I can give you more information----
Mr. Schiff. Say for 10 seconds, and I want to echo the
Chair's concerns on the issue of how long it is taking them to
get background checks for people applying for citizenship.
Ms. Lofgren. We are going to take a brief detour here on
something that the Ranking Member and Chairman have agreed on,
and the Committee will come to order. Without objection, the
Chair is authorized to declare a recess.
[Whereupon, at 11:52 a.m., the Committee proceeded to other
business.]
[Whereupon, at 11:53 a.m., the Committee resumed the
hearing.]
Ms. Lofgren. We return to the hearing and recognize Mr.
Gohmert for his 5 minutes.
Mr. Gohmert. Thank you, Madam Chair.
So many questions, so little time. Thanks for your
vigilance, Mr. Secretary.
Following up on Mr. Feeney's question and Mr.
Sensenbrenner's, this is an ongoing problem. Our local law
enforcement is willing to pick people up. They do pick people
up. They can't afford to not only do the Federal Government's
job in picking up, but then also pay for detention until they
are removed. Is there any way that if they pick them up and
they hold them that they can be compensated sometimes $50 a day
to hold them, until Homeland Security can pick them up, ICE can
pick them up and remove them?
Mr. Chertoff. I think the 287(g) program does have some
provision----
Mr. Gohmert. But you know, 287(g) has so many requirements
and so many requirements for training, and additional costs to
local communities.
Mr. Chertoff. There was a program on paying for criminal
aliens which is run out of the Justice Department. That is a
budget issue, to be honest with you.
Mr. Gohmert. I understand. That is why I am asking, can you
help out the locals----
Mr. Chertoff. Whatever is available, I can't speak to their
budget. It is not my department. I don't now what the budget
is.
Mr. Gohmert. Is ICE under you?
Mr. Chertoff. ICE is, but I think the reimbursement for
jails and prisons comes under DOJ and does not come out of ICE.
Mr. Gohmert. Well, we have a lot of local law enforcement
that is doing the Federal job and they are willing to do it, as
we see it, but they need some help in reimbursement for holding
people.
Let me move on, since we don't have a good answer there.
On the REAL ID Act, that has been demonized in a lot of
ways, but those of us who supported it believe in states
rights. A state has a right to decide who uses their highways,
but it can also, as the Federal Government, we also have the
right to say who gets in transportation and interstate
commerce. So in order for that to be received, then it has to
be a state ID or driver's license where the states don't just
hand it out to anybody illegally here.
I know there is also a great fear or a national ID card. In
trying to consider that and also meet the needs of ensuring
that immigrants who are here legally can be properly
identified, I was wondering about observing states' rights by
saying, okay, you decide who gets a driver's license, but you
have to meet these requirements. I was wondering about adding
an amendment to the REAL ID Act to require those driver's
licenses also have a place on them that indicates that someone
is a U.S. citizen or U.S. national, yes or no, and if the
answer is no, then have a tamper-proof card that you have to
furnish as an immigrant legally here. What do you think about
that possibility?
Mr. Chertoff. The REAL ID license is only available if you
are here in the country lawfully. The idea is if you are here
on a temporary basis lawfully, it has to expire at the end of
you period.
Mr. Gohmert. That is correct.
Mr. Chertoff. Between distinguishing between U.S. citizens
and legal permanent residents, I am actually not sure that that
is legal to do, even constitutionally. And I am not sure that
we ought to distinguish between a legal permanent resident and
citizens on the license, since both are here----
Mr. Gohmert. No, it would be U.S. nationals and U.S.
citizens, yes or no. If the answer is no, then you would have
to have a tamper-proof card to show that you were lawfully here
as a legal immigrant who was not a citizen or a national. We
are not going to discriminate between nationals and citizens,
but we do require that you have a green card. I don't think
that is discriminating under the Constitution.
Mr. Chertoff. I think from a practical standpoint, adding
another document, I don't now if it would----
Mr. Gohmert. We are not adding another document. We need to
have a green card that is tamper-proof.
Mr. Chertoff. I agree the green card should be tamper-
proof. We now issue a better quality, and there is a whole
debate about whether we should recall the old ones and
transition to the new ones. So the short answer is, I agree in
principle with your idea that we ought to move forward with
this. I want to make sure we don't make what is already turned
out to be a very complicated thing----
Mr. Gohmert. That is what I am trying to simplify.
Mr. Chertoff. I don't want to make it more complicated,
more contentious by introducing new requirements because I am
afraid that is going to set us back.
Mr. Gohmert. Well, you can't require somebody to produce a
green card or a tamper-proof card if they are a U.S. citizen or
U.S. national, well, how do you know, everybody would say, oh,
I am a U.S. citizen or U.S. national if they have a state
driver's license that says they are a citizen or national, then
that should take care of that.
Mr. Chertoff. I understand your point. I could reflect on
it.
Mr. Gohmert. I am trying to simplify, but I see that my
time is running out.
Let me ask this real quickly. We had a Border Patrol agent
who was following some illegals by airplane and all of a sudden
just crashed. There are people back in Henderson, Texas that
are concerned he was shot down, but nobody that they know of
has ever been allowed to see the airplane. Would I be able to
see the airplane to see if there are bullet holes?
Mr. Chertoff. I am familiar with an incident where somebody
was following illegals with an airplane. We have had some
helicopters----
Mr. Gohmert. I know it happened. I went to the funeral. So
anyway, I wondered if I might be able to see the airplane.
Mr. Chertoff. I would have to find out about that. I can't
answer.
Mr. Gohmert. So a Member of Congress may not be allowed to
see the airplane?
Mr. Chertoff. You are catching me about something I know
nothing about, so I have to find out about it.
Mr. Gohmert. Okay. So that doesn't give me a lot of
encouragement. It looks like we need a hearing on that.
As far as adjudicators, have we increased the number of
adjudicators with proper security clearances so that we can
move things? I have a guy that has been waiting since 1996 to
get lawful status here.
Mr. Chertoff. That is not a problem with the number of
adjudicators. There are problems with----
Ms. Lofgren. The gentleman's time has expired.
Mr. Chertoff. The answer is we are dealing with both. We
are hiring more adjudicators and we are working to be more
efficient on the backlog.
Mr. Gohmert. Thank you, sir.
Ms. Lofgren. We only have 4 minutes left until the vote is
called on the floor. We have two Members that want to ask
questions, so I think by agreement each will get 2 minutes and
submit the rest of their questions in writing.
Sheila Jackson Lee is recognized for 2 minutes.
Ms. Jackson Lee. Madam Chair, let me thank you for your
indulgence. This is difficult when we have votes, and I
apologize for being delayed in my district.
Mr. Secretary, I am going to repeat and ask you to have
these questions in writing. I am concerned about the Hutto
facility that is actually in Texas, to give me precise answers
about the waking of children with flashlights. You may not be
aware of it, but we should get something in response. We have
been following this for a couple of years.
The other is I want to ensure--let me just ask a specific
question. Do you know the average tenure of ICE agents?
Mr. Chertoff. Not off-hand.
Ms. Jackson Lee. What I would like to weave that into is
retention and training. We know that their job is difficult and
has been made more difficult because of the, in essence, feat
of trying to use them to have immigration reform when we should
really have laws. So they are finding themselves invading
frightened civilians who have no interest in terrorizing us,
and of course it is in many instances very hostile. I would
like to know about their retention and training, if you would,
if you don't know the answer.
The other question I would ask is, what is the policy for
providing life-saving medication to those who are held in
detention? We are finding that that is particularly a problem.
Mr. Chertoff. The policy is to do it.
Ms. Jackson Lee. I am sorry?
Mr. Chertoff. The policy is we do obviously provide life-
saving medicine to people in detention.
Ms. Jackson Lee. My last one, if can do in writing, is I do
think that even though it is the FBI, you need to give us a
response on what efforts are being made, whether you put it in
a classified form, what efforts are being made on this waiting
list? It is torturous. It is destroying people's lives.
Mr. Chertoff. And it is very frustrating for us, too. We
have actually spent a lot of time tackling this issue, so we
can give that to you.
Ms. Lofgren. We will get a report in writing on that.
Ms. Jackson Lee. Thank you. I have other questions I will
submit for the record.
Thank you, Madam Chair.
Ms. Lofgren. Thank you.
Mr. Franks is recognized for 2 minutes.
Mr. Franks. Thank you, Madam Chair.
Thank you, Mr. Secretary. I had the privilege, as you know,
of traveling with you and the President down to the Arizona
border and witnessed this double-fence that was being built
there, and was convinced that this was a very, very effective
mechanism. My greatest concern, Mr. Secretary, is very simple.
Outside of immigration, I am concerned about the national
security component, and that the border is probably a
terrorist's most available means to penetrate this country.
With that said, do you know, sir, and this may have to be
answered later, do you know, sir, if the double-fence with the
surveillance and the road between them has ever been breached
by any--?
Mr. Chertoff. I think it has. I think the double-fence with
the road has been breached, and we have had people just
recently what they did is they tied a wire across the double-
fence and when you pulled it tight, it would be at the level of
the neck of a Border Patrol agent riding on an ATV, and it
would take his head off. So obviously, they got through it.
They put up this booby-trap in the double fence and we were
lucky that we found it.
Mr. Franks. What I would like just for the record, maybe
you could give us examples of when the double-fence, as it is
being built in Arizona now with the sheet steel going four feet
into the ground so they can't be tunneled under very easily, of
being breached. If you could do that, because I think that is a
pretty effective mechanism.
But again, my great concern is the stopping terrorist at
the border. What do you think is our greatest vulnerability as
far as terrorists being able to come in and either hit this
country with a nuclear capability or with other weapons of mass
destruction?
Mr. Chertoff. I think the greatest vulnerability right now
is private aircraft, somebody flying a private aircraft from
overseas with a nuclear bomb, and they wouldn't even land. They
would just detonate it. That is why we are in the process of
requiring new and stringent security measures for private
aircraft.
Mr. Franks. I see. That is a good answer, Mr. Secretary.
Last question, what do you need from us more than anything
else to protect this country?
Mr. Chertoff. I need the continued support of Congress for
measures like REAL ID Act, like western hemisphere traveling
issues, of secure documentation, continued support for building
the low-tech and the high-tech at the border, continued support
for hiring Border Patrol and ICE. That is in my department.
Mr. Franks. Thank you for all your good work.
Ms. Lofgren. The gentleman's time has expired.
Mr. Secretary, we appreciate your presence here today. Many
Members have additional questions. We will forward those
questions that are within the Committee's jurisdiction to you.
I would ask that if at all possible that the answers--we are
only going to send questions to you that are important to us--
that the answers be prepared and promptly responded to, if that
would be possible.
Mr. Chertoff. We will. Thank you very much.
Ms. Lofgren. With that, this hearing is adjourned.
[Whereupon, at 12:04 p.m., the Committee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Member,
Committee on the Judiciary
Mr. Chairman, thank you for your leadership in convening today's
very important hearing on the oversight of the Department of Homeland
Security. I would also like to thank the ranking member the Honorable
Lamar Smith. Welcome Secretary Michael Chertoff.
The Department of Homeland Security was established five years ago.
The National Strategy for Homeland Security and the Homeland Security
Act of 2002 served to mobilize and organize our nation to secure the
homeland from terrorist attacks. To this end, the primary reason for
the establishment of the Department of Homeland Security (DHS) was to
provide the unifying core for the vast network of organizations and
institutions involved in the efforts to secure our nation. In order to
better do this and to provide guidance to the 180,000 DHS men and women
who work every day on this important task, the Department developed its
own high-level strategic plan. The vision, mission statements,
strategic goals and objectives provide the framework guiding the
actions that make up the daily operations of the Department.
DHS's vision is simple: to preserve our freedoms, protect America,
and secure our homeland. Its mission is to lead the unified national
effort to secure America; prevent and deter terrorist attacks and
protect against and respond to threats and hazards to the nation; and
ensure safe and secure borders, welcome lawful immigrants and visitors,
and promote the free-flow of commerce.
DHS has seven strategic goals and objectives. These include,
awareness, prevention, protection, response, recovery, service, and
organizational excellence.
The magnitude and severity of the tragic events of September 11,
2001, were unprecedented, and that dark day became a watershed event in
the Nation's approach to protecting and defending the lives and
livelihoods of the American people. Despite previous acts of terror on
our Nation's soil, such as, the 1993 attack on the World Trade Center
and the 1995 bombing of the Alfred P. Murrah Federal Building in
Oklahoma City, homeland security before the tragic events of September
11th existed as a patchwork of efforts undertaken by disparate
departments and agencies across all levels of government. While
segments of our law enforcement and intelligence communities, along
with armed forces, assessed and prepared to act against terrorism and
other significant threats to the United States, we lacked a unifying
vision, a cohesive strategic approach, and the necessary institutions
within government to secure the Homeland against terrorism.
The shock of September 11 transformed our thinking. In the
aftermath of history's deadliest international terrorist attack, we
developed a homeland security strategy based on a concerted national
effort to prevent terrorist attacks within the United States, reduce
America's vulnerability to terrorism, and minimize the damage and
recover from attacks that do occur. To help implement that strategy,
DHS enhanced homeland security and counterterrorism architecture at the
Federal, State, local, Tribal, and community levels.
The Department's understanding of homeland security continued to
evolve after September 11, adapting to new realities and threats. Most
recently, our Nation endured Hurricane Katrina, the most destructive
natural disaster in U.S. history. The human suffering and staggering
physical destruction caused by this national disaster was a reminder
that threats come not only from individuals, inside and outside of our
borders, but also from nature. Indeed, certain natural events that
reach catastrophic levels, such as hurricanes and other natural
disasters, can have significant implications for homeland security. The
resulting national consequences and possible cascading effects from
these events might present potential or perceived vulnerabilities that
could be exploited.
Over six years after September 11, 2001, DHS is moving beyond
operating as an organization in transition to a Department diligently
working to protect our borders and critical infrastructure, prevent
dangerous people and goods from entering our country, and recover from
natural disasters effectively. The total FY 2009 budget request for DHS
is $50.5 billion in funding, a 7 percent increase over the FY 2008
enacted level excluding emergency funding. The Department's FY 2009
gross discretionary budget request is $40.7 billion, an increase of 8
percent over the FY 2008 enacted level excluding emergency funding.
Gross discretionary funding does not include mandatory funding such as
the Coast Guard's retirement pay accounts and fees paid for immigration
benefits. The Department's FY 2009 net discretionary budget request is
$37.6 billion, which does not include fee collections such as funding
for the Federal Protective Service and aviation security passenger and
carrier fees.
DHS has engaged in much good work over the past six years, but more
needs to be done. The Department of Homeland Security has been dogged
by persistent criticism over excessive bureaucracy, waste, and
ineffectiveness. In 2003, the Department came under fire after the
media revealed that Laura Callahan, Deputy Chief Information Officer at
DHS, had obtained her advanced computer science degrees through a
diploma mill in a small town in Wyoming. The Department was blamed for
up to $2 billion of waste and fraud after audits by the Government
Accountability Office revealed widespread misuse of government credit
cards by DHS employees. The frivolous purchases included beer brewing
kits, $70,000 of plastic dog booties that were later deemed unusable,
boats purchased at double the retail price (many of which later could
not be found), and iPods ostensibly for use in ``data storage''.
The Associated Press reported on September 5, 2007 that DHS had
scrapped an anti-terrorism data mining tool called ADVISE (Analysis,
Dissemination, Visualization, Insight and Semantic Enhancement) after
the agency's internal Inspector General found that pilot testing of the
system had been performed using data on real people without required
privacy safeguards in place. The system, in development at Lawrence
Livermore and Pacific Northwest national laboratories since 2003, has
cost the agency $42 million to date. Controversy over the program is
not new; in March 2007, the Government Accountability Office stated
that ``the ADVISE tool could misidentify or erroneously associate an
individual with undesirable activity such as fraud, crime or
terrorism''. Homeland Security's Inspector General later said that
ADVISE was poorly planned, time-consuming for analysts to use, and
lacked adequate justifications.
Increasingly, the Department has come under growing scrutiny
because of its immigration and deportation practices. In February 2007,
the Judiciary Subcommittee on Immigration held a hearing investigating
the problems with U.S. Immigration and Customs Enforcement (ICE)
interrogation, detention, and removal procedures as applied to U.S.
citizens. During that hearing, there were many reports of our
immigration system targeting American citizens by detaining,
interrogating and forcibly deporting U.S. citizens under the pretext
that these citizens were illegal aliens. The citizens targeted have
been some of the most vulnerable segments of American society. ICE has
targeted the mentally-challenged and youths.
ICE detention facilities nationwide have been criticized, including
the detention facility at the T. Don Hutto Correctional Center in
Williamson County, Texas. Corrections Corporation of America (CCA)
operates the 512-bed facility under a contract with Williamson County.
The facility was opened in May 2006 to accommodate immigrant families
in ICE custody. As history has shown us, even the best of intentions
can go astray, which is what happened at the Hutto Detention Center.
Due to the increased use of detention, and particularly in light of
the fact that children are now being housed in detention facilities,
many concerns have been raised about the humanitarian, health, and
safety conditions at these facilities. In a 72-page report, ``Locking
Up Family Values: The Detention of Immigrant Families,'' recently
released by two refugee advocacy organizations, the Women's Commission
for Refugee Women and Children and the Lutheran Immigration and Refugee
Service concluded that the T. Don Hutto Family Residential Center and
the Berks Family Shelter Care Facility, were modeled on the criminal
justice system. In these facilities, ``residents are deprived of the
right to live as a family unit, denied adequate medical and mental
health care, and face overly harsh disciplinary tactics.''
The American Civil Liberties Union (ACLU) filed a lawsuit against
ICE in March 2007 on behalf of several juvenile plaintiffs that were
housed in the facility at the time claiming that the standards by which
they were housed was not in compliance with the government's detention
standards for this population. The claims were, amongst other things,
improper educational opportunities, not enough privacy, and substandard
health care. The relief being sought was the release of the plaintiffs.
In August 2007, the ACLU reached a landmark settlement with the ICE
that greatly improves conditions for immigrant children and their
families in the Hutto detention center in Taylor, Texas.
Since the original lawsuits were filed, all 26 children represented
by the ACLU have been released. The last six children were released
days before the settlement was finalized and are now living with family
members who are U.S. citizens or legal permanent residents while
pursuing their asylum claims. Conditions at Hutto have gradually and
significantly improved as a result of litigation. Children are no
longer required to wear prison uniforms and are allowed much more time
outdoors. Educational programming has expanded and guards have been
instructed not to discipline children by threatening to separate them
from their parents. Despite the tremendous improvements at Hutto, the
facility still has a way to go.
As one of the principal and long-standing supporters of
comprehensive immigration reform in the US Congress and an author of a
comprehensive immigration reform bill, the SAVE AMERICA Act, I hope
that today's hearing will serve as a catalyst for closer scrutiny of
our immigration detention system and the immigration enforcement
functions of DHS.
The Administration has more work to do to secure our border. The
Border Patrol needs more agents and more resources. The Rapid Response
Border Protection Act, H.R. 4044, a bill that I co-sponsored, would
meet these needs by providing critical resources and support for the
men and women who enforce our homeland security laws.
This would include adding 15,000 Border Patrol agents over the next
5 years, increasing the number of agents from 11,000 to 26,000. It
would require the Secretary of the Department of Homeland Security
(DHS) to respond rapidly to border crises by deploying up to 1,000
additional Border Patrol agents to a State when a border security
emergency is declared by the governor. It would add 100,000 more
detention beds to ensure that those who are apprehended entering the
United States unlawfully are sent home instead of being released into
our communities. And, it would provide critical equipment and
infrastructure improvements, including additional helicopters, power
boats, police-type vehicles, portable computers, reliable radio
communications, hand-held GPS devices, body armor, and night-vision
equipment.
The Department has achieved much over the past five years in
ensuring that America is a safer place; however, much work is still
required. I am hopeful that this new federal agency will become more
effective and diverse. The members of Congress and the Department all
want a safe and secure America. Again, I welcome the testimony from our
distinguished panelist, Secretary Chertoff.
Thank you. Mr. Chairman, I yield the remainder of my time.
Prepared Statement of the American Civil Liberties Union (ACLU)
Responses to Post-Hearing Questions received from the Honorable Michael
Chertoff, Secretary, U.S. Department of Homeland Security
