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S. HRG. 111–431 

OVERSIGHT OF THE U.S. DEPARTMENT OF 

HOMELAND SECURITY 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

DECEMBER 9, 2009 

Serial No. J–111–65 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

EDWARD E. KAUFMAN, Delaware 

ARLEN SPECTER, Pennsylvania 

AL FRANKEN, Minnesota 

JEFF SESSIONS, Alabama 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

MATT MINER, Republican Chief Counsel 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1 

prepared statement .......................................................................................... 197 

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 3 

WITNESSES 

Napolitano, Janet, Secretary, U.S. Department of Homeland Security, Washington, DC ............................................................................................................. 5 

QUESTIONS AND ANSWERS 

Responses of Janet Napolitano to questions submitted by Senators Coburn, 

Cornyn, Feingold, Feinstein, Grassley, Hatch, Kyl, Leahy and Sessions ........ 38 

SUBMISSIONS FOR THE RECORD 

Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma, letter ............. 195 

Napolitano, Janet, Secretary, U.S. Department of Homeland Security, Washington, DC ............................................................................................................. 199 

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania, letter ...... 217 

(1) 

OVERSIGHT OF THE U.S. DEPARTMENT OF 

HOMELAND SECURITY 

WEDNESDAY, DECEMBER 9, 2009 

U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Committee met, Pursuant to notice, at 10:09 a.m., in room 

SH–216, Hart Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy, Feinstein, Feingold, Schumer, Cardin, 

Whitehouse, Klobuchar, Specter, Franken, Sessions, Kyl, and Cornyn. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. 

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Good morning. I thank everybody for being 

here, and I welcome Secretary Napolitano back to the Committee 

for her second oversight hearing since her confirmation in January. 

In the first several months of the Secretary’s tenure at the Department of Homeland Security, we have seen some marked changes in 

the way that immigration enforcement and domestic security are 

conducted, reflecting a new approach that I hope will serve us well 

as we consider broader immigration reform legislation in the new 

year. And I know that Senator Schumer as Chairman of the Subcommittee will be working on that, and we will try to have immigration reform legislation. 

We often hear that we cannot begin comprehensive reform of our 

immigration laws until we have won control of our borders. Well, 

since the Senate last considered immigration reform—and many of 

us, Republican and Democratic members alike, worked with the 

former President, George W. Bush, to try to get comprehensive reform, and I several times publicly applauded him for his efforts on 

that. But most of the enforcement benchmarks and triggers included in prior legislation have been substantially met. Indications 

are that illegal immigration has receded. And, Madam Secretary, 

we commend you and the men and women of the Border Patrol for 

their extraordinary efforts. 

The Department is also now acting more pragmatically and effectively to deter employers from hiring immigrants who are not authorized to work in the United States by conducting targeted audits 

and, where appropriate, laying the groundwork for meaningful 

prosecution of employers that flout the law. While the prior administration launched large-scale worksite immigration raids, disrupting business operations and often depriving arrested workers 

2 

of due process—I think that was an overreaction—Madam Secretary, you have adopted a sensible approach to immigration enforcement. It probably reflects your significant experience as a 

prosecutor before you were here, and as a Governor. 

Sensible enforcement of current law will not by itself solve our 

Nation’s immigration problems, and we do need reform, and comprehensive reform. 

An example from my home State of Vermont demonstrates how 

badly we need broad-based reform of our immigration laws. Three 

weeks ago, at least four Vermont dairy farms were visited by Immigration and Customs Enforcement agents as part of a nationwide 

workplace immigration audit. Vermont dairy farmers are law-abiding people. They want to respect the law. They want to hire lawful 

workers. But they struggle to find American workers and—unlike 

other agricultural businesses—they are not eligible to hire temporary foreign workers under the H2–A visa program. We do hire 

temporary workers in Vermont for apple picking and things like 

that. Unfortunately, on dairy farms, you need them year round. 

You cannot tell the cows, ‘‘We will be back to milk you in 6 

months.’’ It just does not work that way. So the result is that many 

dairy farmers are forced to choose between their livelihood and adhering faithfully to our immigration laws. And I have urged the 

Department of Labor to modify the H2–A program in its current 

rulemaking process, and I continue to fight for enactment of the 

AgJOBS legislation. I would urge you, Madam Secretary, to support these. 

Another example again from Vermont demonstrates how we can 

use our immigration laws to promote job creation and foreign investment in the United States. At a hearing in July, we saw how 

the investor program known as EB–5 Regional Center Program is 

bringing millions of dollars of foreign investment into the State of 

Vermont and helping create jobs in places like Jay Peak. And I 

want to commend Senator Sessions, who has been a strong supporter of the EB–5 process. We have worked together on legislation 

on this. And I want to thank the Secretary for the Department’s 

recent approval of an expansion of the EB–5 Regional Center program in Vermont. I have long advocated making this a permanent 

program. We have extended it for another 3 years. I think it should 

be permanent. It has worked across the country in Alabama, Iowa, 

New York, Maryland, Oklahoma, California, Illinois, Pennsylvania, 

South Carolina, Vermont, Wisconsin, and, of course, Vermont. It 

creates jobs. 

We also have to have immigration laws that are fair, humane, 

and reflect our American heritage. On that score, I appreciate the 

steps Secretary Napolitano has taken to begin to reform the shameful condition of our immigration detention system. We should have 

systemic reform, including enforceable standards of detention conditions, internal and independent oversight, broader use of secure 

and humane alternatives to detention, and expanded access to legal 

counsel for the detained. 

We want America to live up to our ideals in welcoming and protecting asylum seekers and refugees. The Department has made 

progress in resolving the harm to genuine refugees caused by the 

overly broad application of the material support bar. We all say we 

3 

are a Nation of immigrants. My maternal grandparents immigrated here from Italy, my paternal great-great-grandparents from 

Ireland. That is what makes this country what it is. But more still 

needs to be done. I urge the Secretary to act swiftly to issue regulations on severe gender-based persecution as a basis for asylum 

claims. The landmark case in this area, Matter of R-A-, has now 

been pending for 14 years. We need regulations in place to protect 

other victims. 

But I want to commend the Secretary for working in a constructive manner to address the impending December 31st REAL ID 

compliance deadline. The residents of States that are not materially compliant with REAL ID may otherwise be denied access to 

airplanes and Federal buildings. The National Governors Association stated last month that as many as 36 States may fail to comply by December 31st. I can just think of thousands of Americans 

from these States have IDs that will get them on planes to go visit 

relatives over Christmas, and if there is strict enforcement of the 

laws, when they come to fly back home, they will be told that they 

cannot. 

Senator Akaka introduced and I cosponsored a bill called PASS 

ID, which makes reasonable alternatives to REAL ID. The bipartisan National Governors Association supports this bill. The PASS 

ID bill awaits action on the Senate floor, although there has been 

an anonymous hold on it. I hope that that hold will be lifted. If it 

is not, I suspect whoever is doing the holding, it will become clear, 

and when thousands and thousands of irate people from that Senator’s State start calling in, we will be sure to direct the calls to 

the right place. 

Senator Sessions. 

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM 

THE STATE OF ALABAMA 

Senator SESSIONS. Thank you. Madam Secretary, thank you for 

being with us. You have one of the great large departments in our 

country. Not too long ago, we cobbled it together. It takes some 

strong leadership from the top, and you have the background that 

would qualify you for that, and we want to be supportive when we 

can and provide the oversight that we are required to provide. 

The primary mission of the Department is to lead a unified national effort to secure America to deter terrorist attacks and protect 

against threats. I believe Attorney General Holder, who testified 

before us not long ago, his decision to bring Khalid Sheikh Mohammed and other terrorists to New York City for civilian trials is an 

action that makes your mission more difficult. Bringing foreign nationals into the United States allows them to take advantage of immigration laws and assert various rights in Federal courts, though 

at our last Department of Justice oversight hearing, the Attorney 

General seemed unfamiliar with these consequences when asked 

about them. So I would hope that you can clarify that for us today 

and see what we can do about this action that I think would bring 

into our country some very dangerous people and has the potential 

of resulting in their being released in the United States. 

A major component of your mission is securing of the Nation’s 

borders, deterring those who would attempt to enter illegally, and 

4 

finding and removing those who have come here in violation of law, 

while facilitating entry of legal immigrants and visitors in a fair 

and timely manner. So I am disappointed by some of the actions 

that you have taken that I think undermine the enforcement measures for those in the country now illegally, which I think is critical 

to curbing illegal immigration in this country. 

At a time when the unemployment rate is 10 percent, I believe 

it is not responsible to invite or allow illegal workers to take jobs 

that should be available to American citizens and legal immigrants. 

Now, by pushing for the legalization of an estimated 12 million 

people here illegally or by turning a blind eye to the estimated 11.8 

million illegal workers who are now displacing Americans from 

jobs, I believe that your policies are not helping. 

Earlier this year, I told the President at a meeting that we had 

there that there should be a real possibility for us to reach an 

agreement on a number of important immigration issues. The 

American people, however, cannot accept and will not accept another bait and switch like the 1986 bill, where it, in effect, provided 

immediate amnesty to millions of people who had entered illegally 

in exchange for promises in the future for enforcement that never 

occurred. So I do think it is important that we demonstrate and 

you demonstrate enhanced and improved enforcement if we are 

going to be able to ask the American people to support any kind 

of comprehensive bill in the future. 

We have, I am pleased to say, made some important strides in 

securing our borders, and I know the Department took some effective steps in the final years of the Bush administration to strengthen interior enforcement. Through the construction of fencing and 

increased Border Patrol agents, we have seen a dramatic reduction—really, a significant reduction in the amount of apprehensions 

at the border. I hope and believe this indicates that fewer people 

are trying to enter illegally. In fact, the number of people caught 

illegally attempting to enter the United States dropped by more 

than 23 percent in 2009, and the 556,000 apprehensions made in 

2009 represents an almost 50-percent decrease from the 1.1 million 

arrests made at the border in 2005–2006. 

The Department of Homeland Security has completed over 340 

miles of pedestrian fencing and almost 300 miles of vehicle barriers, and this in addition to almost doubling the amount of Border 

Patrol agents since 2005. 

So these are developments that have been critical to this 

progress, but to be frank, the leadership did not come from the executive branch. It came from Congress and the American people 

who insisted that these things be done. 

The fact is that the current DHS policies are systematically 

weakening, I think, our interior enforcement, and we need to talk 

about that. I believe that the American people rejected this philosophy in 2006 and 2007, and we need to be able to assure the American people that laws will be enforced and that we are not going 

to just look the other way. Faith in the system is eroded and a 

message is sent worldwide when we fail to enforce our laws, and 

the message is if you can just get into this country you are safe, 

do not worry about it, sooner or later they are going to give you 

a legal status. 

5 

Worksite enforcement has been in free fall under your leadership. Based on statistics released from ICE, administrative arrests 

inside the country pursuant to worksite enforcement actions have 

fallen 68 percent since 2008 to 2009, just in that period of time. 

Criminal arrests have fallen 60 percent, criminal indictments have 

fallen 58 percent, and criminal convictions have fallen 63 percent. 

So I think the dramatic reduction in worksite enforcement efforts 

is not healthy, and it is not going to be made up by I–9 audits, 

which have not proved historically to be effective. 

Under current policies, DHS has rescinded the no-match rule, 

weakened the 287 Local Law Enforcement Cooperation Program, 

and pressed for passage of a bill that would unacceptably weaken 

the REAL ID Act. These actions are troubling because they indicate the administration is saying that if illegal aliens are able to 

get into our country, they will not be bothered. So this is, I think, 

a wrong policy and a wrong message. 

This country is a Nation of immigrants. We do welcome millions 

of people, the millions each year who follow the law and enter our 

country through the lawful channels. This country is a Nation also 

of laws, and we cannot refuse to enforce those laws. It undermines 

respect for the great tradition and heritage of American law. 

So I look forward to discussing these issues with you during the 

hearing. They are important questions. I really and truly believe 

that we have an opportunity to continue to make progress in immigration far greater than a lot of people have thought, and at this 

time of surging unemployment, I think it is important that we do 

so. 

Thank you for your work. Thank you for the skills and talents 

you bring to the office, and I look forward to working with you in 

matters on which we can agree and to raising matters where we 

do not agree. 

Thank you. 

Chairman LEAHY. Thank you, Senator Sessions. 

Madam Secretary. 

STATEMENT OF HONORABLE JANET NAPOLITANO, 

SECRETARY, U.S. DEPARTMENT OF HOMELAND SECURITY 

Secretary NAPOLITANO. Well, thank you, Chairman Leahy, Senator Sessions, members of the Committee. 

Securing our borders and enforcing our immigration laws remain 

top priorities for the Department of Homeland Security. Over the 

past year, we have taken unprecedented action to achieve our 

goals, and the results have been striking. As part of the Southwest 

Border Initiative, we have added more manpower, technology, and 

resources to the border. We have implemented a southbound strategy to prevent illegal weapons and cash from crossing the border 

into Mexico and supporting the large drug cartels there, and we 

have expanded our partnerships with our Federal, State, tribal, 

and local partners along the southwest border and with Mexico and 

Mexican law enforcement. 

Compared to last year, seizures in all categories—drugs, smuggled cash, illegal weapons—are up dramatically as a result of the 

southbound strategy. 

6 

As noted, apprehensions are also at decade lows, down 23 percent this year. And, Senator Sessions, I agree with you; interior enforcement is part and parcel of immigration enforcement. We have 

in the last year identified and removed criminal aliens, fugitives, 

and gang members at record numbers. In fiscal year 2009, ICE removed a record number of illegal immigrants, 387,000, of which 

136,000 were criminal aliens. 

Secure Communities, which we are expanding throughout the 

law enforcement agencies in the United States, that checks the biometrics booked in local jails identified more than 111,000 criminal 

aliens just in its first year. 

We have improved oversight of the 287(g) program and renegotiated the agreements there to make them more effective. 

We have enhanced and expanded E-Verify. This is also part of 

interior enforcement. Over 175,000 employers at more than 

600,000 worksites are using the system, with thousands more joining every week. And that is important because that provides a way 

for the American worker to know that the legality of workers is 

being checked. 

We have taken action to reform the immigration detention system to ensure that those in custody are treated humanely, given 

appropriate, timely medical care. We are improving Federal oversight and management, including more direct supervision of detention facilities by ICE. We are also developing strategies for alternatives to detention to be used where appropriate. 

These efforts are part of our enforcement, but as you both noted, 

we also facilitate the legal entry into the United States, and, Mr. 

Chair, I had the honor of being at Ellis Island last Friday and 

swore in 140 new citizens to the United States, including 10 activeduty military, and that is one of the great pleasures of being the 

Secretary of Homeland Security. And while I was there, they gave 

me the ship register where my grandfather came over and immigrated. So it just illustrates once again that we are a Nation of 

laws and a Nation of immigrants. 

With respect to that, we have eliminated the name check backlog 

at USCIS. We have launched a very customer-oriented website. We 

also have eliminated the so-called widow’s penalty and other things 

that were not consistent with our overall immigration values. 

Finally, we have continued to ensure that lawful travelers and 

commerce move across the borders swiftly and securely. WHTI has 

been fully implemented at land, sea, and air ports. Compliance remains very high, above 95 percent. We are strengthening US– 

VISIT. 

And then, lastly, on the issue of the driver’s licenses, the 9/11 

Commission recommended that there be more secure provisions 

surrounding the issuance of driver’s licenses. There was a provision 

tacked onto an appropriations bill called REAL ID to do that. Unfortunately, it was tacked on without adequate consultation with 

the States who have to administer the driver’s license program. 

Working with the National Governors Association, working across 

party lines, PASS ID was developed. I urge you to see if you can 

move this legislation forward. This deadline is fast approaching, 

and as, Mr. Chairman, you noted, this is something, even if we extend the deadline, we have not furthered the 9/11 Commission reVerDate Nov 24 2008 12:24 Jun 01, 2010 Jkt 056497 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\56497.TXT SJUD1 PsN: CMORC
7 

port, which is to get to a more secure driver’s license system. So 

it is something—— 

Chairman LEAHY. But you do support the PASS ID? 

Secretary NAPOLITANO. Oh, absolutely. And we are very interested—and I think the national security, as we build the architecture of it, requires that we take on that recommendation and move 

the issues forward. 

Finally, we need to know—or we look forward to working with 

you on immigration reform. The President is committed to that. He 

is committed to reform that includes serious, effective, and sustained enforcement, that includes improved legal flows for families 

and workers, and a firm way to deal with those already illegally 

in the country. We need to demand responsibility and accountability from everyone involved—the Department of Homeland Security, our law enforcement partners, businesses who must be able to 

find the workers they need here in America, and immigrants themselves—as we enforce the law moving forward. 

So I look forward to working with you, Mr. Chairman, Senator 

Sessions, and others on this Committee to develop a path forward 

early next year to reform the immigration system as a whole. 

Thank you, Mr. Chairman. 

[The prepared statement of Secretary Napolitano appears as a 

submission for the record.] 

Chairman LEAHY. Thank you very much. We are going to go a 

little bit out of order. Senator Schumer has asked to ask one question. He has to go to a meeting for the White House. I have already 

discussed this with Senator Sessions, so, Senator—— 

Senator SCHUMER. Thank you, Mr. Chairman. Thank you, all my 

colleagues on both sides of the aisle, and thank you, Secretary 

Napolitano. Just a brief question. This is on WHTI, the Western 

Hemisphere Travel Initiative. It went into effect on June 1st. In 

Buffalo, New York, and around our northern border, we have seen 

a precipitous drop-off in border crossings, and a good part of it, at 

least the people up there believe, is just because of lack of education. 

The Canadians believe they need a passport to travel across the 

border. Obviously, they do not. WHTI was put together to make it 

easy to travel across the border. But the problem is they believe 

that, and a good number of our Americans believe the same. 

Western New York, Buffalo, depends on cross-border traffic. It is 

probably the No. 1 thing in its economy. 

So all I am asking you here today is: Would you be willing to 

work with me and commit to working with you and your Canadian 

colleague to get an education campaign on both sides of the border, 

informing people what the requirements are of WHTI, that you do 

not need a passport, and that it is not very hard to travel across 

the border? Because it is hurting our economy up there pretty 

badly. 

Secretary NAPOLITANO. Senator Schumer, yes. In fact, we have 

had an extensive education campaign for several months up there, 

including when people get to a crossing point, they are given a tear 

sheet saying, ‘‘This is all you need to do, and you can go over here 

and get your WHTI card right there’’—one-stop shopping, as it 

were. 

8 

Senator SCHUMER. Right. 

Secretary NAPOLITANO. But we are more than willing—— 

Senator SCHUMER. Yes. The problem is the people who do not go 

because they think they need a passport, they know a passport 

costs money. Less than a third of Canadians and a slightly higher—less than a third of Americans and a slightly higher percentage 

of Canadians have a passport, and it has retarded travel. So we 

need to get that education to the people who have not gone across 

the border, and if you could help us with that and work with your 

Canadian colleague, it would be most welcome. 

Secretary NAPOLITANO. We would be pleased to do so. 

Senator SCHUMER. Mr. Chairman, my colleagues, thank you. 

Chairman LEAHY. Thank you. I hear the same questions in 

Vermont. Many of us go back and forth to Canada as though we 

are going to another State, and it does affect commerce considerably on both sides of the border. And others have, as my wife does, 

family members in Canada, and I do not say this just as a personal 

thing, but I know somebody—hundreds and hundreds of people in 

our State of Vermont who do, and it becomes an issue with families. So the education, to the extent we can get the Canadians to 

do the same, would be very helpful. 

Apparently, TSA, the Transportation Security Administration— 

and you and I discussed this before you came in—reportedly posted 

an airport screening manual online last spring that detailed procedures for screening passengers, how certain materials could be 

masked and so on. They described the settings for x-ray machines 

and explosives, listed the countries from which passport holders 

would be subject to greater scrutiny. Apparently, TSA learned of 

this last Sunday after a blogger put it on the Internet. Then they 

initiated an internal review. 

Who should be held accountable? 

Secretary NAPOLITANO. Well, first of all, Mr. Chairman, let me 

say two things about the posting itself, and that is that the security of the traveling public has never been put at risk, and that the 

document that was posted was an out-of-date document. Nonetheless, the posting of it did not meet our own standards for what 

should be available on the Net and not available on the Net. 

So we have already initiated personnel actions against the individuals involved in that. We have already instituted an internal review to see what else needs to be done so that the incident never 

recurs. And I have directed that not just at TSA but we do a review 

departmentwide on all of our components, because as you know we 

have got one of the biggest departments around, to make sure that 

we are being rigorous and very disciplined on what is posted and 

what is not. 

Chairman LEAHY. Am I correct that this involved a contractor? 

Secretary NAPOLITANO. The individual involved was a contractor. 

Some of the supervisors ultimately were in TSA. I should also say 

that with respect to this particular incident, we have also asked 

the Inspector General to do his own independent review to supplement and complement what we are doing. 

Chairman LEAHY. Thank you. 

This week, new terrorism-related charges were filed in the case 

against David Headley, a U.S. citizen who was originally arrested 

9 

for conspiring to commit terrorist attacks in Denmark, but now he 

has been charged with helping to plan the deadly Mumbai attacks 

in India last year. And there have been a number of arrests within 

the United States of persons charged with plotting attacks. I am 

not asking you to go into individual cases, but as you can imagine, 

this raises a great deal of concern among Americans if we have 

people plotting attacks from the United States even though they 

may be conducted outside the United States, because it is just as 

easy to plot such attacks and plot them inside the United States. 

How do we and how does DHS plan to contribute to confronting 

the problem of homegrown terrorism in a targeted, effective manner? I mean, how much coordination goes on here? We know that 

9/11 could have been stopped before it happened if all the dots had 

been connected. I am not going to go back and rehash who dropped 

the ball there, but how do we make sure we are not dropping the 

ball today? 

Secretary NAPOLITANO. Well, Mr. Chairman, with respect to 

Headley, I will keep my remarks restricted just on the nature of 

the case, and it is in the justice system, as you yourself noted. But 

we coordinate and are coordinating very extensively with the FBI, 

the CIA, the DNI, and other intelligence agencies in terms of cases 

that emanate from abroad and threats that now emanate from the 

interior of the United States. 

Second, we are increasing our sharing of information to State 

and locals. Those are eyes and ears, local law enforcement, that 

need to be more fully engaged and employed in watching for those 

who would seek to do us harm and have the information, the situational awareness to do it. 

One of the ways we are doing that, Mr. Chair, is through support 

of fusion centers across the country. 

Chairman LEAHY. The support of what? 

Secretary NAPOLITANO. Of fusion centers, where we have Federal, State, and local law enforcement collocated. And to give you 

some nuts and bolts, one of the problems we are working through 

there or one of the challenges is security clearances so that people 

can get information at top secret and above levels, and that is a 

process that is underway right now. 

And, last, we are really asking the American people to lean forward and at the individual and at the business level and community level, wherever, to recognize that our security is really a 

shared responsibility and that there are things that can be done at 

all levels, even as we work at the DHS to prevent something from 

occurring. 

Chairman LEAHY. I agree with you it is important for just the 

average person to come forward with things. But then we have got 

to make sure the word gets throughout the Government. I mean, 

9/11 could have been totally avoided. There had been warnings 

from at least one FBI agent to Washington about the concerns he 

had with the people who were getting the flight lessons, and he 

was told, ‘‘Well, that is above your pay grade. We have got it under 

control,’’ and nobody did. And it really worries me that that could 

ever happen again. 

Now, one issue, totally different, on which I hope you can be of 

help—and I mentioned this in my opening statement—is the H2– 

10 

A agricultural worker visas. I would like to have them available to 

dairy farm workers. The fact that dairy farmers cannot use this 

program is a problem. It makes little sense when you consider the 

reason for H2–A visa programs. And now it is not a problem just 

in Vermont. It is a problem in Wisconsin. It is a problem in every 

State that has a dairy industry. I have commented formally in the 

Department of Labor’s H2–A rulemaking process. I have written to 

Secretary Solis about this. 

H2–A rules would permit sheepherders on a western range to obtain H2–A visas even though the jobs are exactly what prevent 

dairy farmers from obtaining workers, and that is really not fair. 

I am not suggesting we cut it out for them by any means, but will 

you give serious consideration to addressing this issue with the 

Secretary of Labor to encourage the Labor Department to make the 

rules necessary on the H2–A program? 

Secretary NAPOLITANO. Mr. Chair, yes, and we have been working with the Department of Labor. The issue presented is whether 

through rule or reg we can fix this issue for the dairy farmers 

under H2–A or whether there will actually need to be a statutory 

change. And the lawyers are looking at that issue right now. 

Chairman LEAHY. God bless the lawyers. But we do want a solution one way or the other as soon as we can. 

Secretary NAPOLITANO. Agreed. 

Chairman LEAHY. Thank you. 

Senator Sessions, and, again, I appreciate your courtesy. 

Senator SESSIONS. Thank you. And I know Senator Leahy is always working to be effective in helping his constituents, and there 

are some problems with the farm worker policies that we have. Let 

me just say fundamentally what I think we have a problem with. 

Under the last two proposals of comprehensive reform, it basically allowed people to come to work temporarily for 3 years, to 

bring their family, and then opt to re-up again. That clearly is not 

a strategy that would be effective in the sense that it has no real 

potential to see them return home. They put down roots. Their children start going to school. So if we are going to have an ag program, I think it clearly has to be on a temporary basis where, if 

a person wants to come for a season or in the case of dairies, 

maybe they would have two people come and work 10 months each 

or something of that fashion. But the idea that we would call a 

temporary working program a program in which people come for 

multiple years with their families, with the ability to extend, is 

really an immigration policy, and puts us in a very difficult position. 

There are so many tough questions on these immigration issues, 

but that is one of the matters that I think we have got to get our 

thinking correct about. 

Madam Secretary, I was troubled, I raised with your earlier, 

about your statements in a Washington State workplace investigation, and you said that you were going to get to the bottom of it. 

And the way I understood it, the message you were sending was— 

and I told you that—that you did not want those raids, you did not 

want agents out doing what the law requires, and that is, to investigate businesses who have large numbers of people who are here 

illegally. And statistics by ICE show that administrative arrests of 

11 

illegal immigrants are down 68 percent, and that is the category 

I am talking about. Criminal arrests are down 60 percent, criminal 

indictments are down 58 percent, and criminal convictions are 

down 63 percent last year. The only activity that has increased is 

the amount of requirements under the I–9 audits. Such audits, 

which were a fixture of INS policy during the Clinton administration, are widely considered to be ineffectual. The fines that businesses face are small and too small to deter the activities that we 

are concerned about. 

In addition to focusing on paperwork issues, the administration 

has repeatedly refused to take into custody or deport illegal aliens 

found working when you do the investigations. 

In one high-profile case, for example, American Apparel, a notorious Los Angeles-based immigration scofflaw garment manufacturer, they were allowed to terminate hundreds of illegal employees 

in a series of small weekly dismissals, and the illegal aliens were 

allowed to walk free and in a way that would allow them to seek 

employment elsewhere. 

A recent story on Minnesota Public Radio recounts a similar 

practice where 1,200 illegal aliens were found employed in wellpaid janitorial jobs, but instead of detaining and deporting them, 

the officials went to great pains to assure the public that they were 

not being arrested. 

When we spoke about worksite enforcement at the last hearing, 

you told me, ‘‘We continue worksite enforcement,’’ and ‘‘we continue 

all our enforcement actions, and we will very vigorously.’’ 

In your written response to questions for the record, you also 

stated ICE’s new worksite enforcement strategy would ‘‘target employers who knowingly hire illegal labor, while continuing to arrest 

and remove illegal workers.’’ You promised that, ‘‘Worksite enforcement operations will continue, administrative arrests of illegal 

aliens will occur, and ICE will conduct worksite enforcement investigations of any business, regardless of size, that is suspected of 

knowingly employing unauthorized workers.’’ 

So how do you square those statements with the numbers that 

indicate a significant reduction in enforcement actions? 

Secretary NAPOLITANO. Well, Senator, I am glad to answer those 

questions because I think it is important to emphasize all of the 

work that has been done on the interior of our country to enforce 

the immigration laws. And just let me repeat, this year, since I 

have been Secretary, ICE removed a record number of illegal aliens 

and a record number of criminal aliens. And what we are doing is 

really focusing on those in the interior of the country who have broken the law and also those who impact the public safety. 

Now, with respect to worksite enforcement itself, we have—and 

if we have not supplied you with these numbers, I would be happy 

to do that—a record number of businesses and individuals debarred 

from Federal contracting for immigration violations; a record number of notices of intent to fine—and I agree with you, the fines are 

too low. It is one of the things that I hope that Congress will take 

a look at when it addresses immigration reform—final orders to 

cease violations at record highs. We have literally done dozens and 

dozens of worksite enforcement, and I think one of the key differences that I would like to emphasize is almost a change in inVerDate Nov 24 2008 12:24 Jun 01, 2010 Jkt 056497 PO 00000 Frm 00015 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\56497.TXT SJUD1 PsN: CMORC
12 

tent as we go into a worksite. When we go into a worksite, our 

focus, our intent now is to go after the employer him- or herself, 

themselves, because they are creating the demand, and you have 

to deal with immigration as a supply and a demand issue. 

That is difficult under the current law, I will say, because the 

current law does not give us some of the enforcement tools we 

would like to do that. But that is why I think you have to look at 

all of the numbers, not just a few, to see that there has actually 

been more worksite enforcement this year than in prior years. 

And, last, I would reiterate E-Verify. E-Verify is a fast-growing 

system. It is a way that is easy. It is continually being built, improved, what have you, for employers to verify that the employees 

that they are hiring are here in the country legally. And I hope to 

keep driving the immigration system as a whole toward employer 

use of E-Verify. 

Senator SESSIONS. Thank you. The border area is very important, 

and progress is being made there. But we do need to reduce that 

jobs magnet, particularly in a time of record unemployment for our 

country. 

Secretary NAPOLITANO. I agree. 

Chairman LEAHY. Thank you, Senator Sessions. 

Senator Feingold. 

Senator FEINGOLD. Thank you very much, Mr. Chairman. 

Madam Secretary, thank you for being here. FEMA has now obligated $44 billion in response to Hurricanes 

Katrina, Rita, and Wilma since 2005. However, according to the 

Excluded Parties List System, the EPLS database, FEMA has not 

suspended or debarred a single contractor. Does this mean that 

your Department maintains that no FEMA contractor has committed fraud during the reconstruction efforts or otherwise? 

Secretary NAPOLITANO. Senator, let me have the opportunity to 

take a look into that and give you a more thoughtful response 

later. 

Senator FEINGOLD. Do you have any initial sense of—— 

Secretary NAPOLITANO. I have made no such conclusion, but I do 

not know whether there are any actions that are underway, and 

that is what I would like to check for you. 

Senator FEINGOLD. Well, I would very much appreciate that response and really would like to know if this EPLS database is 

being used properly, if, in fact, there have been fraud investigations. And if not, I would like to know why not. 

Secretary NAPOLITANO. Fair enough. 

Senator FEINGOLD. In August of this year, the Department 

issued new policies governing searches of travelers’ electronic devices, such as laptops or iPods, at the border. I am deeply disappointed with the policies the Department adopted and, in particular, the refusal to adopt any sort of standard for searching U.S. 

citizens at the border. 

Madam Secretary, in addition to the inconvenience they cause 

international business travelers, these policies also do nothing to 

assuage concerns that the Department could be engaging in racial 

profiling when it conducts these border searches. This is unacceptable, and that is why I am planning to reintroduce the Travelers’ 

Privacy Protection Act in the coming months. I have been told that 

13 

the Department was at least attempting to increase oversight and 

transparency related to these searches, but given the vastly different standards that are laid out for ICE and CBP under the two 

policies, it is unclear whether even that goal has been accomplished. 

The two policies, when read in tandem, seem to create a series 

of loopholes that would allow these electronic devices to be held 

and searched for long periods of time without requiring a showing 

of probable cause. 

For example, isn’t it true that CBP agents have to obtain supervisory approval to keep a laptop for more than 5 days, but an ICE 

officer does not have to obtain any additional approvals to hold and 

search a laptop for up to 30 days? 

Secretary NAPOLITANO. Well, but we are talking about seizures 

at the border, and that would be conducted by CBP. 

Senator FEINGOLD. That is my point, though. Isn’t there a differential between the two agencies with regard to laptops or iPods, 

depending on the agency? 

Secretary NAPOLITANO. Senator, yes, but I think we would differentiate based on the different types of investigations that each 

of those components perform. 

Senator FEINGOLD. As I understand from discussions with your 

staff, it is really ICE officers who are conducting all in-depth 

searches of electronic devices and, hence, it is the ICE policy, not 

the CBP policy, that would apply. Is that correct? 

Secretary NAPOLITANO. I would have to have a greater context. 

I think we have to step back and look at what is it that we are 

doing from a law enforcement perspective. First of all, we have 

changed the policy with respect to search of electronic media, particularly the laptop. That was the genesis of the original set of 

questions I think that you posed at my oversight hearing a few 

months ago. That policy was revised significantly to have more 

supervisorial oversight. 

The plain fact of the matter is that we seize electronic media; 

sometimes ICE seizes it in conjunction with a criminal investigation; sometimes the Secret Service seizes it in conjunction with a 

criminal investigation. But the concern was raised with respect to 

business travelers who are traveling internationally being stopped 

at the border, and that is the policy that we have revised, provided 

more supervisorial import. 

But I also have to say, as someone whose agency is responsible 

for the counterterrorism mission, or partially responsible for it, 

that this is an important capacity for us to have as a law enforcement matter. 

Senator FEINGOLD. I do not doubt that at all, but I am looking 

for some appropriate trigger for this kind of search, which I think 

is serious business, and for consistency between the different agencies. 

Secretary NAPOLITANO. Senator, if I might, at the border the law 

has been for many years now that the reasonable suspicion standard does not apply for somebody entering the country and at the 

border. And if the question is why don’t you apply the same standard at the border as is done in the interior of the country, where 

you would have to have a higher standard, the answer is because 

14 

entry into the country is something that is not viewed as an absolute right, and that is why the law in that area differentiates the 

standards for search. 

Senator FEINGOLD. Madam Secretary, we will continue to discuss 

that over time. 

Over the last several years, DHS has substantially increased its 

reliance on state and local law enforcement authorities to enforce 

federal immigration laws, including recent expansion of 287(g) 

partnerships with law enforcement and the Secure Communities 

Program. Both of these programs have stated that their goal is to 

remove dangerous criminal aliens from local communities, and yet 

there have been numerous reports of widespread abuse of these 

programs by law enforcement, including selective enforcement of 

certain laws against Latinos and other minorities and pre-textual 

traffic stops and other arrests for minor violations. I think this is 

unacceptable, especially because most of the law enforcement communities that have signed on to these agreements do not have policies prohibiting racial profiling. 

I understand that DHS has tried to address some of these concerns by coming up with a standard 287(g) agreement that will require law enforcement to prosecute any charges that they file 

against an individual they arrest, but I do not think this will get 

at many of the concerns civil rights groups have raised about arrests for minor traffic offenses and immigration-related charges. 

So if the goal of these programs is to prioritize the arrest of dangerous criminals, why not set clear guidelines that limit arrests 

and referrals to felonies? 

Secretary NAPOLITANO. Senator, in effect, that is what has happened, because what we did is we took 287(g)—and, by the way, 

we still have—there has been some suggestion made that we have 

reduced it. No. We have refocused it on two areas. One is in the 

jails, to run immigration checks in the jails, and that way it and 

Secure Communities are complements of each other. And second is 

in conjunction with Federal task forces whose priorities are Federal 

fugitives and felony gang members—you know, the higher-level 

criminals who impact public safety. 

Senator FEINGOLD. Well, if that is the effect, why not have the 

guidelines say that? 

Secretary NAPOLITANO. Well, Senator, I think that that in effect 

is what happens, and those agreements now have all been renegotiated and signed. 

Senator FEINGOLD. Well, I would urge that the guidelines reflect 

that purpose, which is to get at the more serious offenses. But I 

thank you for your answers. 

Chairman LEAHY. Thank you. 

Senator Kyl. 

Senator KYL. Thank you. 

Madam Secretary, Governor, thank you for being here. You spoke 

earlier about the TSA breach. I applaud you for adding an IG review to that. Could I also make another recommendation? That is, 

when breaches like this occur in the intelligence community—CIA, 

for example—they do a damage assessment by a red team, by 

somebody not within the agency itself, to determine what advantage a potential inmate could have gotten from the information, 

15 

and then usually make recommendations about what procedures or 

other actions are necessary to ameliorate that damage. 

If you have not decided to do that already, could I recommend 

that you do that and, when it is done, provide the Committee with 

a classified version of the report? And, by the way, ordinarily these 

things are best done really quickly. Any comment? 

Secretary NAPOLITANO. Senator, yes, that is something we have 

been looking at. I think my first question has been, well, what exactly was put out there that was not otherwise available, either by 

observation of an airport checkpoint or the like. But, indeed, if it 

is ascertained that there was some serious information not otherwise available that was put out, I think the red-teaming issue is 

something I would consider, absolutely. 

Senator KYL. Well, just from public reports, there are clearly 

things you do not want out there—spelling out the settings on the 

x-ray machines and explosive detectors, passenger and luggage 

screening details, pictures of credentials that are authorized, those 

kinds of things. Clearly, somebody could take advantage of those 

things, and I think it is really important that not Department of 

Homeland Security but somebody outside the Department make 

that evaluation. 

Secretary NAPOLITANO. Right, Senator. I think that is one of the 

genesis for the IG taking a look at it, and it is a suggestion I am 

happy to entertain. 

Senator KYL. Please. Secondly, you know of my support for something called Operation Streamline, a method by which you deter illegal immigration by charging those who repeatedly cross the border illegally with misdemeanor offenses and ensuring that they 

have jail time. There are two basic questions I want to ask you 

about that. 

First of all, I was disappointed that the only mention in the conference report of this is a report that I had asked to be done to determine what resources both your Department and DOJ would 

need to make available to maintain and expand this program. It 

has been very effective in two areas that I know of, and my understanding is that it has had a rocky start in the third: Del Rio, 

Texas; Yuma, Arizona, both very, very effective; Tucson sector I do 

not think has been fully implemented, and I think part of the reason may be a lack of detention space. So two questions. 

What are your plans with expanding Operation Streamline? If so, 

where do you think it might be? And then, secondly, I will get into 

the question of detention space with you. 

Secretary NAPOLITANO. Right, Senator. I think that, first of all, 

I support Operation Streamline; I think it is effective. I think with 

respect to the Tucson sector, which is by magnitude the largest sector that we have, that provides some logistical difficulties. I think 

we have the bed space available. I think we are solving our detention issues. 

We have had an issue with the Ninth Circuit recently vis-a-vis 

Streamline that has—it just came down a couple of days ago about 

how pleas are done in Streamline matters. And given the volume 

of cases—and I know you know that courthouse well—we have had 

to be working now down there in terms of how are we going to 

16 

operationally address the court of appeals’ concerns so we can continue building Streamline in the Tucson sector. 

And while I am not free to discuss the President’s budget at this 

time, obviously, I can say that it in my view fully addresses some 

of our issues on the southwest border. 

Senator KYL. Well, thank you for that. This study that is required will ask you to report to use your evaluation of what else 

you need to expand the program effectively. I am concerned because the conference does not increase detention space at all. It 

does include some money for alternatives to detention, but, of 

course, alternatives to detention is exactly not the point with Operation Streamline. The whole point there is the deterrent effect of 

detention. 

Secretary NAPOLITANO. Yes, and the issue there, however, is if 

you can take some of the other detainees and put them in alternatives to detention, you can put your Streamline detainees in a 

hard bed. 

Senator KYL. Sure. If you think the detention is adequate, 

though, I think we will need to—I would respectfully request that 

you include that argument in the study that you perform for us, 

because I think there is a concern, at least among some of us in 

the Congress, that we need additional detention space, especially 

to make something like Operation Streamline work. 

Secretary NAPOLITANO. Thank you. 

Senator KYL. Obviously, this also gets to the question of the security of the southern border. It is not secure yet, and the first line 

of defense are the Border Patrol agents. The bill for funding this 

year only calls for an additional 100 agents, but the conference report also requires that the northern border increase agents by 

about 700, from 1,525 to 2,012. Obviously, they have to come from 

somewhere, presumably the southern border. Wrong. I mean, we 

cannot do that, especially if we are going to try to—well, I guess 

one question: Do you still intend to try to reach the goal of 20,000 

agents? Second, how will we maintain—you have said that your 

goal is to maintain a force of 17,000. Of course, we have 17,415, 

as I understand it, and need more. 

So how do you square all of these numbers and the fact that the 

Obama administration only requested funding for 100? 

Secretary NAPOLITANO. What we are doing, I think, to get to the 

root of your question, Senator, is how do we keep meeting our Congressional marks on the southern border in terms of number of 

agents and meet our Congressional marks on the northern border 

without subtracting from one to get to the next. The answer is our 

staffing plan calls for us—what we are going to do is reduce headquarters staffing, and we are going to reduce academy staffing at 

the Border Patrol in order to make sure that we hit both of those 

marks and stay within the financial needs of the country. 

Congress has been very clear that, you know, we need to be as 

rigorous budgetarily as we can be, so we really did a scrub inside 

and said, all right, now where can we move some FTEs to get to 

our agent—— 

Senator KYL. That is good. May I just interrupt, though, and ask 

what is the mark for the southern border for next year in terms 

of active agents? 

17 

Secretary NAPOLITANO. I will have to get you the exact number, 

but it is right around 20,000. 

Senator KYL. OK. I appreciate it. 

Secretary NAPOLITANO. It is the congressional mark. 

Senator KYL. OK. Also, I have got a couple other questions. My 

time has expired, so I will submit those for the record, and thank 

you again. 

Secretary NAPOLITANO. Thank you. 

Chairman LEAHY. Thank you, Senator Kyl. 

Senator Whitehouse. 

Senator WHITEHOUSE. Thank you, Chairman. Welcome. 

Secretary NAPOLITANO. Thank you. 

Senator WHITEHOUSE. If you do not mind, I would like to briefly 

shift the topic to—— 

Chairman LEAHY. Senator Whitehouse, I wonder if you would 

mind, Senator Cardin was—and I did not see him standing there. 

He is actually supposed to be next. 

Senator WHITEHOUSE. And he is the senior member of our class 

of Senators who came in 2 years ago, so I owe him very great deference. 

Senator CARDIN. I appreciate the courtesy. I am prepared to wait 

for Senator Whitehouse and then I guess Senator Cornyn, and I 

will be prepared to question. 

Chairman LEAHY. Then, Senator Whitehouse, go ahead. 

Senator WHITEHOUSE. Well, I thank Senator Cardin. 

Chairman LEAHY. I thank both Senators. 

Senator WHITEHOUSE. On cyber, we had a hearing. It is good 

that Senator Cardin is here. He held it in his Judiciary Subcommittee. Your Deputy Under Secretary Phil Reitinger from DHS 

was there, associate Deputy Attorney General James Baker was 

there, and the senior officials from NSA and the FBI were there. 

And I asked them if any of them were satisfied with the existing 

legal structure within which the cyber defense effort currently operates, and I got a unanimous array of ‘‘No’’ from each of them. 

There is, I understand, an interagency process that is led by or 

through the National Security Council, but given all the responsibilities of the National Security Council, I am not entirely comfortable that that is a good and lasting governance structure for 

our cybersecurity efforts. I see that more as an interim structure, 

and I would love to hear your thoughts on the adequacy of the 

present legal structure, whether you concur with the views of the 

other officials who spoke at Senator Cardin’s hearing, and where 

you think our governance of our cybersecurity efforts should go, 

bearing in mind that a lot of principals at the Cabinet meeting 

have a piece of this issue. 

Secretary NAPOLITANO. Well, I think, Senator, two things. One is 

you are right, the legal parameters in which we are handling some 

of the cyber issues are being looked at very deeply now. I would 

say it is not simply a domestic issue in that regard. It is an international issue, because obviously the networks are international in 

scope. Some of the logistical issues involve things like servers that 

are not located in the United States, but, yes, that is part of an 

interagency process that is ongoing. 

18 

With respect to how that is organized, I think that what, in fact, 

has happened is that DHS has moved, as the President’s Policy Review suggested, to be the lead agency for the protection of the dotgov sites as well as intersection with the private sector on dot-org 

and dot-com sites. And, indeed, I just had some meetings in Silicon 

Valley not too long ago. Phil has been out there quite a bit talking 

with the private—— 

Senator WHITEHOUSE. Although, if I could interrupt on that, ultimately DOJ will have the lead on all of the legal determinations. 

That is their lane of the road. Ultimately, other agencies will have 

the technical lead because of the technical complexity of undertaking the efforts that we do. And when you take out the technical 

aspects and the legal aspects, it is hard to see how Homeland Security ends up with a very strong platform for persistent leadership 

unless there is some vehicle for coordinating the DNI and you and 

the Attorney General and everybody together. And I am not comfortable that that presently exists. I think the NSC has set a good 

interim measure, but it would seem that that should devolve into 

a more formal cyber-specific governance structure at some point. 

And are you really confident that DHS at the top of that orbit with 

everybody else in the layer below it is the appropriate—shouldn’t 

there be a White House leadership on this? 

Secretary NAPOLITANO. Well, I think there is White House leadership through the NSC process, but I would suggest, Senator, that 

the DHS platform is actually much more significant than your 

question suggests. 

I was just, for example, out in Virginia at the ribbon cutting for 

the NCCIC, which is a huge computer center that is part of the 

DHS structure now. Of course, we are working with DOJ on matters that are investigatory in nature for when they need to bring 

cases, and our alliance is very, very close. 

The NSA, with all of its technical capacity, provides assistance 

both to us and to DOD which has the lead, obviously, on the dotmil side of the world, and we take our road map from the President’s review. Now what we have been focusing on—and, by the 

way, Phil is a former DOJ prosecutor, so the alliance there could 

not be closer. 

But, in any event, we take our review organizationally in terms 

of how the cyber world is divided from the policy review, and one 

of our key things we are focused on now, quite frankly, is staffing 

up. 

Senator WHITEHOUSE. Well, in my last minute, let me just ask 

more precisely, are you comfortable with the existing governance 

structure? Or is that still a work in progress? And can we expect 

a more permanent governance structure for the defense against 

cyber attacks to emerge as the interagency process goes forward? 

Secretary NAPOLITANO. Senator, I would think that there is an 

evolution, but I would suggest, if this is where the question is 

going, that the presence or absence of a czar per se is not the way 

we have organized to me what ultimately will evolve. To me what 

ultimately will evolve out of this is a very robust coordination component within the NSC structure with on the operational side DHS 

on the lead, as I have suggested, for dot-gov intersection on the private sector with dot-org, dot-com, and DOD on the dot-mil side. 

19 

Senator WHITEHOUSE. Thank you. My time is expiring. And I believe Senator Cornyn now has the floor. 

Senator CORNYN. Thank you very much. 

Madam Secretary, good morning. Good to see you. 

Secretary NAPOLITANO. Good morning. 

Senator CORNYN. I know last Wednesday you testified before the 

Commerce, Science, and Transportation Committee on security 

challenges post-9/11, and one question had to do with whether you 

were consulted by the Attorney General before the decision was 

made to try Khalid Sheikh Mohammed and other 9/11 co-conspirators in New York—or at least attempt to try them there, since you 

know and I know a judge will ultimately decide where that trial 

will take place. But were you consulted? 

Secretary NAPOLITANO. No, I did not talk with the Attorney General. That is a prosecution decision as to where and in what venue 

to bring a case, and I believe that properly is held by the AG. 

Senator CORNYN. And I agree that the Attorney General is the 

one that makes that decision, at least preliminarily. Of course, the 

President of the United States is going to have to make a decision 

whether the military authorities will, in fact, turn the detainees 

over to the civilian authorities. I assume that permission, that authority will be granted, since I cannot imagine the Attorney General would have announced this decision without at least some indication from the President that he agreed with him. 

But the question I have for you is I asked the Attorney General 

about some of the immigration-related issues, and I know that you 

know that seven Senators on the Committee wrote a letter in November asking for further detail on the immigration status of these 

detainees. Do you have an opinion as to what sort of legal status 

would be conferred on these detainees once they are brought to 

American soil and what implications that might have in terms of, 

if they were acquitted or charges were dismissed, whether they 

would be able to be detained indefinitely or not? 

Secretary NAPOLITANO. Yes, Senator, and we have sent you a formal response to your letter. But here is the way it works, and that 

is, for example, for a detainee who is brought here for purposes of 

prosecution, they are paroled—and that is the technical term used, 

but they are paroled into the country only for purposes of prosecution. There are no immigration benefits that accrue to that. 

And with respect to the second part of your question, if there 

were to be an acquittal, then what would happen is we would immediately take that individual and move them into removal proceedings from the country. 

Senator CORNYN. So that would be litigation? 

Secretary NAPOLITANO. Well, they would go through that process, 

but we would remove them from the country. 

Senator CORNYN. But there is no—— 

Secretary NAPOLITANO. They get no immigration rights in that 

context that are any different than the fact that they have no immigration rights per se where they are right now. 

Senator CORNYN. And where would you remove them to if their 

home country would not take them back? Back to Gitmo? 

Secretary NAPOLITANO. Senator, those are questions that I do not 

like to answer on a speculative basis. 

20 

Senator CORNYN. On a speculative basis? 

Secretary NAPOLITANO. Yes, sir. I think that, first of all, you 

have to—first of all, the question that was raised in the letter to 

me was: For what purposes do they enter the country? Are they 

able, for example, to apply for asylum or refugee status? The answer is no. They are only brought into the country for purposes of 

prosecution, and in the off chance that there were to be an acquittal for those individuals, they would immediately be put into removal proceedings and deported from the country. 

Senator CORNYN. Well, Madam Secretary, I understand that 

would be your intention, but certainly they would, once in the 

country, have some legal rights, would they not, to—and possibly 

you would not be the one making that decision, possibly some judge 

would be making that decision. 

Secretary NAPOLITANO. Senator, they are only—and there is statutory language to this effect, but they are only brought into the 

country for purposes of prosecution. 

Senator CORNYN. Well, I guess this goes to my questions I had 

for General Holder, and that is that while he says he made a decision that these individuals could be safely tried in Manhattan, as 

I alluded to earlier, a judge is going to decide on a change of venue 

whether or not they are going to be tried there or somewhere else. 

And certainly once they are brought into the country, if they have 

certain additional rights as a result of their presence on American 

soil, you are not necessarily going to be the last word. A judge, if 

they invoke the jurisdiction of the courts, is ultimately going to 

make that decision. 

You know, I asked General Holder what happens if for some reason, since the administration has made the decision that now detainees will be treated like criminals rather than enemy combatants under the laws of war, and some court decides that when 

Khalid Sheikh Mohammed asks for a lawyer and he was denied a 

lawyer and because of coercive and enhanced interrogation techniques that his testimony cannot be used and somehow decides 

that he cannot be tried in an Article III court, what guarantees do 

we have that he can be detained indefinitely, either here or somewhere else? 

Secretary NAPOLITANO. Well, Senator, again, I think what the 

Attorney General decided is based on a firm conviction in the values inherent in the criminal justice system and the American court 

system and that this trial can be held, and held successfully in 

New York City. 

Senator CORNYN. Well, I think what concerns me the most is 

that actually I think the decision was not fully vetted and thought 

out in terms of what the potential consequences would be. I have 

no doubt as to what the Attorney General’s intentions are, but he 

is not the final judge, so to speak, and someone else will be making 

that decision. 

For example, as you know, the Supreme Court has said that you 

cannot indefinitely detain someone in this country under the 

Zadvydas decision, and the question is: If they are not available for 

repatriation to their home country, where will we keep them? 

21 

Anyway, you get my point. I understand the Attorney General 

has not signed off on the letter yet. We have not gotten it yet. But 

we—— 

Secretary NAPOLITANO. You should get it today. 

Senator CORNYN. We look forward to that. 

If I can just ask you one last question quickly about smuggling, 

human-smuggling initiatives. I was in the Rio Grande Valley recently, and ICE briefed me on the problems they are having with 

wire transfers by criminals and drug cartels to traffic in narcotics 

and smuggle people. I am, frankly, impressed with the good work 

they have done, but they tell me they need some additional legal 

resources. For example, on many of the money transfers, people 

can claim to be somebody they are not, and there is not adequate 

identification which will allow law enforcement officials to trace the 

source of the funds. 

Are you aware of that issue generally? And what I am offering 

is if there are additional legal authorities that your Department 

needs or ICE needs in order to track down and prosecute these 

wire transfers involving narcotics or human smuggling, we would 

be glad to work with you on that. 

Secretary NAPOLITANO. Thank you, Senator, and I am very aware 

of that issue. That is something that I worked on when I was Attorney General of Arizona, among other things, and I would hope 

when the Committee takes up the issue of immigration that some 

of those tools could be contemplated. 

Senator CORNYN. When will that be? 

Secretary NAPOLITANO. Well, the Chairman indicated in his testimony that he would like to take it up next year. 

Chairman LEAHY. I was one of those who worked with former 

President Bush and complimented his efforts on a comprehensive 

package, and I would hope that we can get back to trying that. I 

think that is something that is going to require Republicans and 

Democrats to come together. I think it can be done. I do not think 

anybody, no matter where you are in the political spectrum, feels 

the system we have today is working perfectly by any means. And 

I would hope that we have a comprehensive bill, and I think that 

the efforts will be there, and I would certainly be willing to work, 

obviously, as I have on so many other issues, with the Senator from 

Texas and everybody else on this. 

Senator CORNYN. Mr. Chairman, I look forward to that. You 

know, we have tried and I hope we will try again to address comprehensive immigration reform. Narrow issues like providing ICE 

the information they need in order to track down these wire transfers to me seems like such a narrow issue. I hope it does not wait 

on the necessary—— 

Chairman LEAHY. I would hope some of those things could be 

done in the meantime. That is a basic law enforcement matter, and 

we should be able to do it. 

Senator Cardin, you have been waiting patiently. I thank you 

again for your courtesy in allowing Senator Whitehouse to go 

ahead. Please go ahead. 

Senator CARDIN. Thank you, Mr. Chairman. 

Madam Secretary, it is a pleasure to have you here. I am actually going to follow up first on Senator Whitehouse’s comments on 

22 

cybersecurity. The hearing I conducted in the Terrorism Subcommittee was rather sobering, the vulnerability of America, that 

we know that there are nation states that are actively trying to 

compromise our cybersecurity in the United States. We know that 

these efforts could lead to soldiers or terrorists or criminals invading our country through cyberspace. 

One of the sobering numbers that came out at that hearing, 

Madam Secretary, is that when asked how effective are we in preventing this, the 80-percent number came out, which would, I 

think, be very damaging to think that there is a 20-percent success 

rate. Now, admittedly, a lot of it is private resources, not always 

Government resources that are being attacked. But it does mean 

that we are losing billions of dollars a year through cyber attacks. 

It does mean that we are vulnerable to a hostile force trying to 

come in and interfere with our cyber information, compromising 

our energy sources, our financial systems, our military. 

In your response, you talked about the fact that we have a review going forward, and there is an issue now as to whether there 

needs to be a more focused person within the White House or 

whether the Department of Homeland Security should take the 

lead. Clearly, NSA plays a critical role here. The Department of 

Defense has their own. 

I still am concerned as to whether we have a game plan in place. 

The initial review showed that there was still a lot more that needed to be done. This is an urgent issue, and I just want to emphasize the urgency of action here. 

Now, there are two parts to this. I would like to have you respond to both. Senator Whitehouse mentioned is the legal basis 

adequate, adequate for effectiveness in getting the information we 

need and to have in place what we need to protect our Nation, but 

also privacy. When we look at EINSTEIN II, there is a concern 

that there is personally identified information that may be available. We are not sure that we have in place adequate oversight to 

make sure that we minimize invasion of individual privacy. And 

now as we move toward EINSTEIN III, those same concerns are 

in place. 

So we want you to work with us to make sure that we have institutionalized the protection of privacy for American citizens on personal information that is not needed for our security. But then, second, we want to make sure that we have in place adequate laws 

and structures so that we can counter the vulnerability that bad 

players are trying to perpetrate on the United States. 

I am particularly mindful that NSA, located in Maryland, the 

premier collection agency in the world, is actively working on this, 

and I just call to your attention to give this matter the highest attention. 

Secretary NAPOLITANO. Well, Senator, I could not agree with you 

more. Indeed, I believe that the cyber mission is one of the major 

missions of the whole homeland security environment. It is also a 

rapidly evolving one and changing one. Almost by the time you are 

talking about a particular intrusion, it is past, and you are on to 

the next one. 

So I just want to clarify, if I might, one thing, and that is, I do 

not think there is any confusion, at least amongst the Cabinet, as 

23 

to the division of labor; that is, the Department of Defense operationally has a dot-mil side; the Department of Homeland Security, 

the dot-gov, plus the intersection with the private sector; that the 

NSA provides technical assistance to both. The institutionalization 

of privacy, the protection of privacy issues is built now into our 

own DHS process. So from an operational standpoint, we have 

moved in a way past the initial review. The question I think Senator Whitehouse had goes to somebody coordinating operational efforts in the case of a major attack from the White House. 

Senator CARDIN. Well, I think that was his concern, but I think 

he was also concerned on the broader issues to make sure that we 

have in place the coordination that requires interagency, and 

whether that is adequately addressed under the current chain of 

command. I think that is still an issue that we are not quite confident is in place. The review by the President seemed to indicate 

that that was not clear. I know he has taken steps to counter some 

of that, but at least the initial information from the review indicated that there was a need for stronger coordination. 

Secretary NAPOLITANO. Senator, I think that is correct, and I 

think in the months since that review, a great deal of work has 

been done, but will continue to be done in this regard. Again, this 

was an area, if I might say, that we have really put a priority on 

over the last year, and one of our chief challenges right now, one 

of the key priorities we have is really speeding up the hiring process to bring on more individuals who work in this arena. 

Senator CARDIN. Well, I thank you for that, and we really want 

to work with you closely on that. 

Secretary NAPOLITANO. Thank you. 

Senator CARDIN. Another hearing we had in our Subcommittee— 

we get all the tough topics. We have a high-containment lab in the 

United States, and obviously of concern here was the anthrax attack on the Congress itself. Fort Detrick, which is located in Maryland, is moving forward with this BSL–4 lab which we are proud 

of the work that is being done there by very dedicated people dealing with some of the most challenging risks against America. 

There is also here an issue of coordination. There are a lot of 

Federal agencies that are involved in dealing with our high-containment labs, and there have been some reports here indicating— 

I know that the Committee on Homeland Security, Senator Lieberman and Senator Collins have filed legislation. Part of that would 

be to try to deal with select agent lists by tier so that there are 

added precautions to those who deal with those chemicals and 

agents that could very well be used as a weapon of mass destruction and to require greater background checks, greater security 

issues, training, et cetera, greater inventory controls, et cetera, at 

Tier 1. 

Have you had a chance to review those recommendations? And 

do you have any view on it? 

Secretary NAPOLITANO. I have reviewed them and have discussed 

them with members of the Department, including the newly confirmed Under Secretary for Science and Technology, Dr. O’Toole, 

who is really an expert in this whole area. The way we look at it 

is that the Department of Homeland Security provides standards 

that would need to be met, in a way similar or analogous to what 

24 

we have been doing in the chemical arena in the CFATS process 

where you have the tiering, as you suggest, 1, 2, 3, and 4, and you 

have an engagement process by which laboratories are tiered and 

standards established. 

Senator CARDIN. Well, I would just urge you that we need to 

have a system that promotes best practices, but we also—because 

there are a lot of good things going on, but we also need to have 

much more sophisticated background checks, et cetera, and continuing review for those who have access to those items that could 

very well be part of a weapon of mass destruction. And I think Senator Lieberman’s point is to try to move us in that direction. I 

know there have been other recommendations, and I hope that we 

can move quickly on these issues as well. 

Secretary NAPOLITANO. I concur. 

Senator CARDIN. Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you very much. 

Senator Feinstein has been waiting here patiently for an hour. 

Please. 

Senator FEINSTEIN. That is quite all right. Thank you very much, 

Mr. Chairman. 

Madam Secretary, I just wanted to talk to you for a moment. I 

am really concerned that we may be unwittingly presiding over the 

demise of American agriculture. I have never seen it more stressed. 

I come from the largest agricultural State in the Union. California 

is a driver, sometimes for good, and sometimes a driver for not so 

good. But what we see happening are growing numbers of farmers 

moving to Mexico, operating lands in Mexico, hiring Mexicans, and 

importing into this country. I will give you one example. A man by 

the name of Steve Scaroni has moved 2,000 acres and 500 jobs 

from his $50 million operation in California, to Guadalajara. Today 

he exports to the U.S. 2 million pounds of lettuce a week, and he 

has spent thousands of dollars to startup his new farms and train 

workers. 

That is what is happening. Western Growers tells me that at 

least 84,000 acres of farmland from California and Arizona are now 

in Mexico, and at least 22,000 ag jobs formerly in these two States 

are now in Mexico. And we see it in apples. We see it in dairy. We 

see it in pears. We see it in row crops. And if you add to that some 

of the other economic stressors, for the first time in my lifetime I 

have seen farmers in bread lines in the Central Valley. And you 

add to this your I–9 audits, which send a chilling effect over the 

rest of agriculture, respectfully I do not agree with the Ranking 

Member. I think we are destroying agriculture because, like it or 

not, agriculture depends on a non-domestic workforce to the greatest extent. Virtually all of the big ag States do. And I think we 

have to recognize it. 

And so I have been increasingly concerned by the inability to 

move any legislation that would give some protection to workers 

who are committed to work agriculture for a period of years, and 

that, namely, is AgJOBS. The current H2–A seasonal worker program will not do it. If you are 24/7, 365 days a year, the H2–A program will not do it. And I am increasingly concerned by what is 

happening. Of course, the product of this is that we import more 

food produce from outside our country, and, which has raised conVerDate Nov 24 2008 12:24 Jun 01, 2010 Jkt 056497 PO 00000 Frm 00028 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\56497.TXT SJUD1 PsN: CMORC
25 

cerns about food safety and salmonella, as there were with peppers 

and other things coming into the country in the summer of 2008. 

I think a country that is strong really should be able to produce 

its own food, but you cannot do it with domestic labor. That is just 

a fact. So we have to have public policy that deals with it. 

I wanted to say that to you publicly because I hammer it and 

hammer it, and no one pays attention. It is as if we are in this 

great thrust to drive anybody that is illegal out of this country no 

matter how valuable their services may be. 

Another problem that I have had is the Visa Waiver Program. I 

believe the Visa Waiver Program essentially is the soft underbelly 

of the visa system. Now we have 35 countries in it. We have 16 

million people coming in. I believe about 40 percent of the undocumented population comes from people who have overstayed their 

authorized visit in the United States. I have always suspected people come in on a visitor’s visa and they just decide to stay, and that 

is a large part of the undocumented population. 

So let me ask you this question. What steps has DHS taken to 

begin to track who has entered the United States through the Visa 

Waiver Program and if they have left or overstayed their visit? 

Secretary NAPOLITANO. Senator, we have taken a number of 

steps on the visa overstay issue, and I would be happy to supply 

you with a more complete briefing, or your staff with a more complete briefing, but particularly those who come in by air, tracking 

them as they come in, and now being able to measure better 

whether or not they have left. We are also working—— 

Senator FEINSTEIN. How do you do that specifically? 

Secretary NAPOLITANO. Well, because we have better air travel 

documentation than we did before. For example, ESTA helps us, 

other programs that we are using help us. So there are mechanisms in place that are giving us better control, particularly in the 

air environment, who is coming in, who needs to be leaving. 

It leaves open, of course, the question of measuring those who 

are coming in, not leaving, or leaving on the land ports. 

Senator FEINSTEIN. And how do you know today how many are 

leaving? And if you do know, what percent are actually leaving? 

Secretary NAPOLITANO. I do not think that we can say with precision what percentage of visa holders stay over. But I think we can 

say that the issue of the visa overstays has been one of the kind 

of most difficult but top priority problems that we have been working on these last 10 months. 

Senator FEINSTEIN. I know you have, and we have talked about 

it. To be candid with you, there still is no way to know if people 

have left, so, I mean, that is the nitty-gritty of this issue. Have people left the country? They are here for a specific period of time. The 

visa expires. Do they leave? I mean, even if it were a simple form, 

as in China, when you go into China you just fill out a slip in triplicate, whether you are business or pleasure, and where you will 

be staying. We do not even do that. So we do not know, essentially, 

if that visitor has left our country. 

Secretary NAPOLITANO. Senator, first of all, we are getting more 

information on the incoming traveler, particularly in the air environment. 

26 

Second, one of the ways that we are now picking up more of the 

overstays is by the enhancement of other activities that we are 

doing in interior enforcement. For example, as we expand Secure 

Communities—and we hope to in the next few years have it in 

every jail across the country—there will be a biometric that will be 

taken when you are booked, and if you are an overstay, we will 

pick you up right then and there. And, therefore, there will be a 

removal process instituted right then and there. 

So some of these other mechanisms that we have built up I think 

will help reduce that visa overstay problem. 

Senator FEINSTEIN. I have been at this for many years now. 

When do you think we will have a system where we will be able 

to know if visa waiver travelers have left the country? 

Secretary NAPOLITANO. Senator—— 

Senator FEINSTEIN. Because we keep increasing the pool of countries. When the visa waiver program was first established, it was 

limited to 8 countries. We are now 35 countries that people can 

come in without a visa. And yet we do not have the data as to 

whether they leave. 

The blame for the illegal immigration problem is put on poor people who come over the border, when it may not be the major part 

of the problem. We have no way of knowing. 

Secretary NAPOLITANO. Senator, I think your comments illustrate 

some of, as you and I both know, the complexities of this issue. But 

one thing I would caution us against is the notion that we are 

going to build or should build a massive biometric exit system 

around the country. The expense and added value of that to security I think is dubious. There are other mechanisms better able to 

tell us not just about an overstay, but an overstay who is here to 

do us harm. 

Senator FEINSTEIN. Thank you. 

Chairman LEAHY. Thank you. 

Senator Franken. 

Senator FRANKEN. Thank you, Mr. Chairman, and thank you, 

Madam Secretary. 

Since October 2003, 104 immigrant detainees have died in our 

custody, in the custody of Immigration and Customs Enforcement, 

and I am sure some of those were inevitable. But others were likely 

preventable. 

For example, in 2006, a man from Ghana died in custody from 

a heart attack after guards waited 40 minutes to provide him medical attention, let alone open his cell. They would not open his cell 

for 40 minutes. 

Last year, another detainee died after falling and fracturing his 

skull, and then, according to newspaper accounts, being shackled 

and pinned to the floor of the medical unit as he moaned and vomited, then being left in a disciplinary cell for more than 13 hours. 

An Ecuadorian woman, Maria Inamagua, died in a Minnesota facility 3 years ago. ICE found that her death was inevitable, but 

also found that she had not undergone her mandatory medical intake exam, despite being detained for 2 months. 

You inherited this problem. I know that. And I know that you 

are trying to fix it. But the first step in improving conditions is 

27 

identifying the problem. So my question to you is: What went 

wrong here? 

Secretary NAPOLITANO. Well, we did an extensive review of the 

detention situation at ICE, Senator, and I think several things 

which we have moved to correct. One is we decentralized it too 

much. We did not have ICE personnel on site. We did not have 

clear standards that we enforced. The contracting, particularly as 

we outsourced all of these detention facilities, was not all that it 

should have been. 

We now have moved—and we can brief your staff in more detail, 

but we have moved to correct all of those problems and to really 

evaluate that detention system and hold it to the standards that 

it should meet in any legal system. 

Senator FRANKEN. Thank you. I want to now talk about immigrants, seekers of asylum. Every year tens of thousands of democracy and human rights activists who are victims of religious persecution and ethnic cleansing come to our borders to seek protection. 

These really are the huddled masses, and our asylum and refugee 

programs which protect these people and welcome them to our 

country are an important part of what makes us the land of the 

free. And Minnesota has a special place in these programs. As recently as 2006, we took more refugees than any other State except 

California. 

But right now ICE is detaining thousands of applicants for asylum, often for months at a time. In fact, in recent reports it is suggested that, if anything, more asylum seekers are being detained 

and for longer. Your Department has the discretion over whether 

or not to detain asylum seekers. Why are we increasingly detaining 

asylum applicants? 

Secretary NAPOLITANO. Well, Senator, oftentimes what happens 

is someone who is in the country illegally is arrested and picked 

up, and at that point they claim asylum. They have not claimed 

asylum as they entered the country. We have some categories of individuals who are seeking asylum that we are looking at en masse 

as to whether or not they should fall within asylum eligibility. That 

is an interagency process we are working on with the State Department and the Justice Department. 

And then with respect to trying to move or increase the speed of 

the adjudication process, we are doing everything we can to look 

at methods to streamline, but there are certain limitations that are 

on that, limitations in terms of availability of hearing officers, 

availability of evidence adjudicators and the like. 

Senator FRANKEN. Well, I have read about people who have come 

seeking asylum when they arrive, and they know that if they go 

back, they are—or they claim that when they go back they are 

going to be subject to violence or retribution, and they have been 

imprisoned. And in 2005, a Congressionally authorized bipartisan 

commission found that it was not appropriate to detain asylum 

seekers in prisons. That was 4 years ago, but today asylum seekers 

continue to be detained in State and county jails alongside violent 

criminals, and they wear prison jumpsuits and they are shackled, 

and they are even put in solitary confinement. 

These are people who come and say they are seeking asylum. 

They are not criminals. ICE currently detains asylum seekers in 

28 

several county jails in Minnesota. In October, you announced that 

you would take steps to better manage special non-criminal, nonviolent populations like asylum seekers. Will this include separating them from accused and convicted criminals and getting them 

out of prison-like conditions? I would encourage that. 

Secretary NAPOLITANO. Senator, yes, part of our overall detention 

reform is to really do a risk analysis for every individual who 

comes into our system, and if they are not felt to be a danger to 

the community or else-wise, to look at how they should be housed 

and under what conditions. And so not everybody needs to be 

housed in the same way as your question implies. 

Senator FRANKEN. Well, just following up on that, there is a 

credible fear interview to determine whether these people have a 

credible fear, and very often they continue to be detained after it 

has been determined they have a credible fear if they go back. 

Secretary NAPOLITANO. Right, and what we have been doing is 

working with our field officers to increase and speed up the process 

by which they are paroled into the country temporarily, if there has 

been adjudication of credible fear. 

Senator FRANKEN. OK. Well, thank you. And I would encourage 

that. 

Secretary NAPOLITANO. Yes, absolutely. 

Senator FRANKEN. Thank you. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you very much. 

Senator Specter. 

Senator SPECTER. Thank you, Mr. Chairman, and I join my colleagues in welcoming you here, Madam Secretary, and I commend 

you for the good job you are doing. 

Secretary NAPOLITANO. Thank you. 

Senator SPECTER. I appreciated the meeting that you participated in when you were in Philadelphia some time ago about manufacturing vaccines, and we have seen a very serious problem with 

H1N1, the swine flu, vaccine with the delivery falling far behind 

what was anticipated because they are foreign manufacturers, by 

and large. Australia, illustratively, used it for their own purposes. 

And with respect to the possibility of bioterrorism, there is a long 

list of problems, potential problems—anthrax, botulism, Ebola, 

smallpox. And we seem to be bogged down in bureaucratic infighting between a couple of Federal agencies, with the rumor the Department of Defense and BARDA not wanting to see us go ahead— 

or DARPA not wanting to see us go ahead with HHS and BARDA. 

There have been briefings at the very highest levels with the Vice 

President and Secretary Sebelius, yourself, and OMB Director 

Orszag. 

My question to you is: Isn’t this a problem of such a magnitude 

and with our experience with H1N1 that we ought to be moving 

ahead promptly to try to find some way to deal with vaccines 

should we have a bioterrorist attack? 

Secretary NAPOLITANO. Senator, I think that, first of all, on the 

vaccine question, we are now catching up in terms of projections 

and availability of vaccine, and we still need to encourage the 

American public to get that H1N1 vaccine. 

Senator SPECTER. Our projections have not been too good so far. 

29 

Secretary NAPOLITANO. But the numbers are not—it is now a 

very robust production schedule, and it is meeting—we will at some 

point in December be at the number that we predicted in the fall— 

or the manufacturers, more specifically, predicted in the fall we 

would be at. But the real question, which is the availability domestically of manufacturing capacity, development capacity, I think the 

H1N1 episode reveals how useful it would be to have that capacity 

domestically. 

Going to the second part of your question, I think that that is 

an urgent issue for us with respect to other bio agents moving forward. 

Senator SPECTER. Well, thank you. I think it is urgent, and I am 

glad to have your concurrence, and see if we cannot break the logjam and move ahead. 

I turn now to another subject, and that is the subject of the jobs 

created by the EB–5 program which gives an individual who wants 

to become a U.S. citizen preferred status by investing $500,000 in 

the United States and creating at least ten jobs from that. And this 

has been an enormously successful program in Pennsylvania, promoted by Governor Rendell, and it has produced some 

$2,300,000,000 in investments and the creation of more than 6,000 

jobs and the expectation immediately of 6,000 more jobs. And we 

have run into a very serious problem with regard to investments 

in one Pennsylvania project where there was a change in investment, and at the time the processes were made, there was a disclosure that there would be—the business plan specifically provided 

for alternative investments, and those alternative investments 

were made. And there are five investors who have put up 

$2,500,000 and created a great number of jobs, and they had advice 

from the Deputy Chief of Service Operations Center of USCIS that 

there could be alternative investments. And now their status is 

being challenged, and their appeals have been denied. 

I have learned about this matter only recently and wrote to the 

Director of the U.S. Citizenship and Immigration Services and 

would ask consent that a copy of the letter be made a part of the 

record, Mr. Chairman. Mr. Chairman, a unanimous consent request. 

Chairman LEAHY. Without objection. 

[The letter appears as a submission for the record.] 

Senator SPECTER. And my request to you, Madam Secretary, is 

to take a look at it. There would need to be a promulgation of written guidelines, but it seems to me on the merits and as a matter 

of equity, where there is a substitution of investment—and that 

was stated in advance that there ought to be no problem. But you 

have three people whose appeals have been denied all the way up 

the chain, and they are now being reviewed by USCIS that we 

need to, as a matter of fairness, deal with them. But as an example 

of somebody who is going to be deported under these kinds of circumstances, certainly it will be a damper on this important program, especially at a time when we need all the job stimulus we 

can get. 

Secretary NAPOLITANO. Senator, I would be happy to take a look 

at that request and see what we can do with that. I am sure Director Mayorkas will take a look at it. We are working on the guideVerDate Nov 24 2008 12:24 Jun 01, 2010 Jkt 056497 PO 00000 Frm 00033 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\56497.TXT SJUD1 PsN: CMORC
30 

lines on EB–5 and working also with the Department of Commerce 

to see what would make sense in the environment, because as you 

say, these investments lead to American jobs. 

Senator SPECTER. I very much appreciate that. 

One final question in the small amount of time I have remaining, 

and that is, is there any process possible to simplify checks at airports? Listen, we have to do whatever it takes to be safe in the airports, but you wonder sometimes about all of the rigmarole and the 

ages from the very young to the very old, and a question arises in 

my mind as to whether we are not overreacting. We had the White 

House Mall on Monday night. I did not see you there. Were you 

there? 

Secretary NAPOLITANO. I was there. 

Senator SPECTER. OK. Well, it was—— 

Secretary NAPOLITANO. I was all dressed up. 

[Laughter.] 

Senator SPECTER.—a big crowd. My credential was checked three 

times as I walked through long lines. Was yours checked three 

times? 

Secretary NAPOLITANO. No. I walked right in. 

[Laughter.] 

Senator SPECTER. Well, I will not ask you why you have preferred status because I know you are entitled to it. But it raises 

the question in my mind, and I am glad to be checked as often as 

they want to check us going into the White House. But it is a reaction to the gate crashers, obviously, of a couple of weeks ago. And 

I wonder, do you have results as to what all of these elaborate tests 

at airports showed? Do they really find things? Remember the old 

slogan—well, you are too young—in World War II, ‘‘Is this trip 

really necessary? Is all of it really necessary? ’’ Because if it is, fine. 

Secretary NAPOLITANO. Senator, a couple of things. One is I consistently ask in the Department what is the value-added of any 

procedure that we are imposing and what is the threat that we are 

attempting to deal with. 

A second thing I ask is: Is there a better way? And this is where, 

for example, there is a project underway that, if successfully completed, may allow us to get rid of the liquid limitation, which is a 

real—it is a problem for travelers who do not want to have to necessarily check a bag. 

So we are consistently asking those types of questions, and they 

are the kinds of questions that we ought to be asking because, you 

know, travel and the ease of travel and all of that is something we 

want to foster. 

Senator SPECTER. Thank you very much, Madam Secretary. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

We have mentioned and touched on this earlier in my statement 

that by December 31st, a very short time from now, States have 

to materially be compliant with the REAL ID bill under the act 

that was zipped through, whether citizens are not going to be able 

to use driver’s licenses as identification to board commercial aircraft at airports all across the country. Thirty-six States are now 

compliant. I had mentioned to you I had this horror scene of thousands of Americans who have flown to visit friends or family or relVerDate Nov 24 2008 12:24 Jun 01, 2010 Jkt 056497 PO 00000 Frm 00034 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\56497.TXT SJUD1 PsN: CMORC
31 

atives for the holidays with no problem, and then get to board a 

plane on January 2nd or 3rd or 4th and are told they cannot get 

on the plane, having exactly the same IDs that they had to get on 

the first link of the plane. 

Will your agency take any administrative steps so that we do not 

have this kind of chaos and confusion after midnight on December 

31st? 

Secretary NAPOLITANO. Mr. Chairman, this is a very frustrating 

situation for—— 

Chairman LEAHY. I mean, I would love to get the bill passed 

since we—— 

Secretary NAPOLITANO. Yes, there is a solution out there that is 

a legislative one. 

Chairman LEAHY. It has been held up by one of these aggravating holds, but go ahead. 

Secretary NAPOLITANO. Mr. Chairman, there is a solution, a legislative solution, and ultimately it will have to be a legislative solution. In the meantime, I have a set of not very attractive options, 

and they are not very attractive for the fundamental reason that 

simply granting an extension does not move us forward on the security side and fulfilling what the 9/11 Commission recommended. 

But I am looking at what our options are now should the Congress 

not act. 

Chairman LEAHY. Please keep in touch with me on that. 

Secretary NAPOLITANO. Absolutely. 

Chairman LEAHY. When you testified in May, you said you were 

conducting an internal review of the effectiveness of internal border 

checkpoint programs, including one that is on Interstate 91 in 

Vermont. That one has been a source of ongoing concerns. It is 

some considerable distance from the border. If somebody is a really 

serious smuggler, there are half a dozen parallel roads, two-lane 

roads that go along there, and they just get off the interstate, take 

a parallel and come back. If you have got a GPS, it is pretty easy 

to do. 

I have always been concerned about these kinds of checkpoints 

from years ago when I was asked if I could prove that I was a U.S. 

citizen. I had the license plate 1 on the car. My ID said I am a U.S. 

Senator, but it did not seem to satisfy the person that I was a U.S. 

citizen. I suspect that they had a deficient civics class when they 

were growing up. I have not had that happen since, and it has been 

years since that. But I do get horror stories of people who are just 

taking products to market, taking kids to school, are late for a doctor’s appointment, and suddenly they have to prove they are citizens, people born and raised in Vermont and so on. What about 

this? 

Secretary NAPOLITANO. Well, we have looked at the issue of temporary interior checkpoints, and I particularly look at the ones in 

Vermont because I know of your interest and will provide you with 

greater detail on actual numbers. 

But my view, Senator, is that they are and should be part of a 

border strategy so that we do have some means off the geographical border to see what is coming across. They do provide useful information. 

Now, we do make apprehensions—— 

32 

Chairman LEAHY. No, I understand that, but they are so far removed from the border that the vast number of people going down 

there—if you really wanted to get involved in smuggling, you are 

just not going to take the interstate. Your predecessor proudly gave 

me a list of the number of marijuana arrests and people whose 

visas had been over that they had over a period of several months 

of stopping people there. And I pointed out that if you really want 

to find people with visas gone or marijuana or something, every 

day we have hundreds of thousands of people that drive in from 

Maryland or Virginia into the District of Columbia. Just put a road 

block on every single one of the bridges and the roads coming in 

here, and I can guarantee you you will get hundreds of people. 

Now, there may be a bit of an outcry from those who are going 

to work because you would have a traffic jam that would take a 

week to unravel. And I think you and I would quickly agree that 

for the number of arrests you would get, it is not a very effective 

thing to do. 

We are just a little State, but there are some of us who love it 

and were born there and are concerned about it and wonder if this 

is overkill. 

Secretary NAPOLITANO. Mr. Chairman, I think it is not, and we 

have the same question in Arizona, which is the State I am familiar with, and New Mexico, which is the State I grew up in. And 

it is part of—we need to look at the border as an entire region and 

have some facilities that are non-permanent in nature, that are off 

of the border, that move around, that surprise people, that they 

cannot depend upon as part of our overall strategic look. 

Now, how we conduct those checkpoints and whether they cause 

undue delay, that is an issue that I think we can take another look 

at. 

Chairman LEAHY. Well, these border things, it also reflects who 

we are. I mean, in Canada we could not have a better friend, and 

I look at this and I hear the complaints about—a disappointing 

number of complaints from Vermonters about their treatment in 

reentering the United States from Canada, but also from Canadians in entering, something I never heard before, in recent years 

just a lot of them, and some of them seem pretty legitimate. We 

are a welcoming country, and if somebody is treated like you are 

criminal unless you can prove otherwise by the people at our border, whether it is when you get off an international flight or driving across the border, it does not help. And to the credit of the Customs and Border Protection officials in Vermont, they had a recent 

meeting in Newport, Vermont, a border city, actually the one my 

wife was born in, and they made it very clear they want to hear 

about these negative experiences. I think they were surprised at 

the number they had. And I know these are hard-working men and 

women, and I know it is not an easy job, and I know they are the 

first people who are going to ask if somebody got through that 

shouldn’t and say, ‘‘How did that happen? ’’ But it is the image of 

America. Sometimes that is the first thing people see of America 

is at our border. We should not assume that everybody is guilty 

when they come through. 

Secretary NAPOLITANO. Mr. Chairman, we will continue to work 

to improve that. 

33 

Chairman LEAHY. OK. I have questions about what Senator Kyl 

and I gave the Department the authority it needed to provide waivers and exemptions, certain material support cases. That may be 

one for the record, but I really would like an answer on it. 

[The information referred to can be found in the Questions and 

answers.] 

Chairman LEAHY. Also, I know that Judge Webster has been 

asked to oversee the Fort Hood investigation, and to the extent 

your Department is involved in that eventually, I have told the 

White House I expect a report to come here, certainly to Senator 

Sessions and myself and ultimately to the Committee. 

Jeff, did you have anything further? 

Madam Secretary, Senator Kyl asked you about the Border Patrol agent numbers, and he indicated there was a 100-person increase in the budget, but you are moving a couple thousand to the 

northern border. How does that not result in a reduction of agents 

at the southern border? Can you give us an analysis of the numbers? 

Secretary NAPOLITANO. I can, and I think more appropriately I 

think I should give you and your staff—we will give you kind of 

the staffing plan. But as I suggested to Senator Kyl, we are not 

moving agents from the southern border to staff the northern border. It is not going to happen. It is not part of our plan. 

Senator SESSIONS. Will the numbers be up or down a year from 

now at the border? 

Secretary NAPOLITANO. They will be up. 

Senator SESSIONS. OK. That is good to hear, and if you can explain that, I would appreciate it. 

You know, Operation Streamline, since people are not detained 

for that long a period of time, it does not require, it seems to me, 

the quality of the housing that you would do if you were maintaining someone in a prison institution for longer periods of time. But 

what we have learned with crystal clarity is that releasing people 

who have entered the country illegally on any kind of bail results 

in very few showing back up when their deportation hearing comes. 

So it is just a devastation of any enforcement idea if you do not 

hold them pending their hearing. 

Have there been any changes in the number of people that you 

are releasing on bail? Because we finally got the previous administration to end the catch-and-release for the most part. I think there 

are probably some areas that needed further improvement, but it 

sounds to me like that, as you told Senator Franken, I think, on 

asylum cases you are looking to release them as soon as possible. 

Well, often that means they do not return. 

Secretary NAPOLITANO. No, Senator, and I think those things 

should not be confused. I think what he was asking about was the 

adjudication of credible fear matters, and they have been bogged 

down in the system, and we are looking to improve that process. 

Now, we also have told the Congress—and Congress asked us to 

provide an alternatives to detention plan. Obviously, that has to be 

contingent upon a credible belief by us that we will have that individual back in court and ready for deportation. As a matter of practice, there are ways to help ascertain that and to supervise that, 

and we do do that. 

34 

On Streamline, as I suggested to Senator Kyl, I agree that 

Streamline is very useful. We also believe that we have enough detention space identified for the individuals apprehended in the 

Streamline sectors, which include the larger sectors of the border. 

And we are working—— 

Senator SESSIONS. Well, I hope you will look to expand that 

streamline process. It does seem to be effective, and it strikes me 

if you ask the average American when you apprehend somebody 

who has entered the country illegally, shouldn’t they at least be required to have some sort of conviction of a misdemeanor of some 

kind before they are sent back, I think they would all agree that 

that makes sense. 

With regard to E-Verify, I understand that the Arizona law, 

which you signed into effect, is under appeal now in the Supreme 

Court, that the Ninth Circuit in a strong opinion affirmed the legality of that law, which says that the State of Arizona basically 

declared that businesses should check with the E-Verify system to 

verify whether or not the person is lawfully in the country before 

they hire them. The Supreme Court indicated they would like to 

ask the U.S. Government to file a brief in the case. Has a decision 

been made? And why wouldn’t we want to file a brief supporting 

that law that seems to be working well? 

Secretary NAPOLITANO. Well, Senator, I think the process is underway in the Federal Government as to how to respond to the 

U.S. Supreme Court’s request. But you are correct, I did sign that 

law, and I signed it out of my belief that you have to deal effectively with the demand side for illegal labor as well—which is actions involving employers, E-Verify, those sorts of things, even as 

you work to strengthen the border itself. 

Senator SESSIONS. I think that is correct, and to suggest that 

once you have gotten into the country illegally that you are now 

free to work and stay in the country indefinitely is not the message 

we need to send. I have really become a strong believer that an important part of your job and the President’s job and the Congress’ 

job is to send a message throughout the world where large numbers of people, through polling data, say they would come to the 

United States if they could. To send a message that you can come, 

we have large numbers of people that come every year, but you 

must do so lawfully, that is a message we need to send and it is 

important. 

I have been somewhat concerned in recent days as I have learned 

about the Cory Voorhis matter in which this agent complained publicly during a political campaign in Colorado that the district attorney who was running for higher office at that time had plea bargained a number of cases to agricultural trespass, where people illegally in the country committed a drug crime or some other more 

serious offense, and they were allowed to plead to a misdemeanor 

agricultural trespass because apparently that did not result in deportation. 

After the election was over, he was attacked apparently, criticized, prosecuted, acquitted, and it now turns out from your internal investigation that supervisors who were involved in that case 

have failed a polygraph test and apparently have been determined 

35 

to have conducted themselves wrongly with regard to this individual. 

To be brief, it is our understanding that the Office of Professional 

Responsibility has documents showing that the supervisor who 

criticized and apparently moved against Mr. Voorhis, who has also 

been terminated, and who is now contesting his termination, and 

that ICE presented the supervisor for criminal prosecution to the 

U.S. Attorney for felony offenses, including perjury and providing 

false statements, and that OPR sustained administrative charges 

against the supervisor, and that the final report was complete on 

April 3rd, but apparently ICE has yet to take any action against 

the supervisor, but they are continuing to seek to remove Mr. 

Voorhis. 

Do you know anything about that? And I think we need to make 

sure that this is done right? 

Secretary NAPOLITANO. Senator, I am not personally familiar 

with that matter, but I will become personally familiar with it. 

Senator SESSIONS. Thank you. I think it needs to be looked at. 

I do not believe there is anything wrong with a Federal agent or 

State police officer criticizing a prosecutor. I used to be one, a prosecutor, and it did not make people every time you enter into a plea 

bargain, but I do not think they should be disciplined solely for 

that. If some violations occurred, I understand it. But, likewise, I 

do not believe you should allow a climate to develop in the Department that indicates that people who disagree with the policies of 

the Department will be punished if they express themselves. Do 

you understand the value of that? 

Secretary NAPOLITANO. Absolutely. And as somebody who has 

run a large prosecution office, I can appreciate the value of your 

comments. 

Senator SESSIONS. Thank you. 

Chairman LEAHY. Senator Klobuchar will be the last questioner, 

and then we will finish the hearing. 

Senator KLOBUCHAR. Very, very good. I rushed back from the 

floor and made it in time. I want to thank you, Secretary Napolitano, for being here. As you know, we just talked last week or so 

in the Commerce Committee, and I will say what I said then. I 

want to thank you for your great help in addressing the flooding 

in the Red River Valley for both Minnesota and North Dakota, and 

I was really impressed by the work of the people in your Department. 

Secondly, one other thing that I did not mention in Commerce 

the last oversight hearing in May occurred about a month before 

the Western Hemisphere Travel Initiative took effect, and we had 

serious backlogs of travelers in Minnesota who were suddenly 

going to need passports or other documents to get to Canada, 

which had not been required before, and while this is going on, we 

have had a decline in the tourism industry all over the country. 

And I have learned from talking to people in Minnesota that the 

implementation of the Western Hemisphere Travel Initiative has 

been much smoother in our State. This is a good thing, Madam 

Secretary, and people anticipated and they were pleased with how 

things went in a timely fashion and the pragmatism of the people 

in the Department. So I wanted to thank you for that as well. 

36 

At the Commerce hearing, we talked about my concern about the 

no-fly list and some of the secure flight issues, so I am not going 

to go into that again. I did want to touch on something I know was 

touched on briefly here about the accidental disclosure of Transportation Security Administration airport screening procedures when 

that confidential document was placed online. I know that you said 

to an earlier question that it did not represent a significant security risk but did violate the standards of your Department. And I 

was just wondering what steps you are taking to make sure that 

these kinds of disclosures do not happen again. Obviously, they are 

of concern. 

Secretary NAPOLITANO. Yes, Senator, and several things. One is 

we have asked the Inspector General to look at the entire issue 

about what occurred. 

Second, several employees have already been placed on administrative leave, and the contractor involved who actually made the 

inappropriate posting has been dealt with appropriately. 

Third, we are going back through our own procedures at the TSA 

for what gets posted and how, and also making sure that the employees throughout the Department have their training and memories refreshed as to the necessity for when redaction needs to occur, 

how that properly is to be done. 

Senator KLOBUCHAR. Very good. Well, thank you, and we will 

look forward to hearing the results of all of this as we move forward. I know we have talked before about the Border Enforcement 

Security Task Force in the southwest corner of our country, and I 

wanted to get an update on that. I do not think you have talked 

to anyone else about that here. Have you seen any change in the 

drug cartels’ tactics in Mexico since the coordinated efforts began? 

And a second question would be how you would assess Mexico’s 

state and local law enforcement officials’ work in rooting out corruption, going out after the cartels, and being more vigilant? 

Secretary NAPOLITANO. We have increased the number of Border 

Enforcement Security Teams, BEST teams, across the border. They 

have been very effective, collaborative efforts to make sure that 

whatever violence is occurring on the Mexican side of the border 

does not spill over onto the U.S. side, and they are helpful for a 

number of other reasons as well, going after fugitive aliens, for example, criminal alien gangs as another example. So that continues 

to be a very effective tool for us. 

Our law enforcement relations with Mexico are the best I have 

seen in the almost 17 years that I have been working border-related crime issues. For example, for the first time we are seeing 

Mexico actually create basically its own vetted border patrol so 

that, you know, we have an agency to work with along the border. 

They basically removed 1,500 of their customs officials last year 

and replaced them with vetted officers. So our ability to work at 

the law enforcement level has greatly improved. 

Then, last, I think that progress is being made against the cartels. There have been several significant arrests and seizures. Some 

have been kept on the Mexican side. Others are being contemplated for extradition to the United States. And at the Federal 

level, the coordination between President Obama and President 

Calderon is very, very close. 

37 

Senator KLOBUCHAR. Very good. Thank you. 

One other thing that I do not think we have talked about before 

is the creation of the Import Safety Commercial Targeting and 

Analysis Center that you have helped spearhead. At the University 

of Minnesota, we have a National Center for Food Protection and 

Defense, which has been certified as a Homeland Security Center 

for Excellence, so we have long recognized the importance of securing the safety of the food chain. And I am just concerned about 

this, being from an agricultural State and starting to see some of 

the products that have been coming in from other countriesin the 

last few years. Obviously, we are addressing some of our own food 

concerns. I am one of the original sponsors on the bill to bring us 

more food safety. But I continue to be concerned about what is 

coming in from outside of our borders and the effect that could 

have on our homeland security. Could you talk about that? 

Secretary NAPOLITANO. Senator, I can. As you know, we have 

opened up a center in that regard. We are also really working with 

all kinds of food supply chain issues and would be happy to provide 

you with a more in-depth briefing. 

Senator Feinstein in her questions to me related the fact that 

some agriculture is leaving the United States as a homeland security issue, and I think she has nailed it, and as have you by your 

questions. 

Senator KLOBUCHAR. Right. 

Secretary NAPOLITANO. So we have really got to look at that. 

Senator KLOBUCHAR. I think that is why we called the farm bill 

the Food Security Act, just how important it is for us to be able 

to produce our own food. 

The last question I have is about the Recovery Act, which included $1 billion for TSA to procure and install explosive detection 

systems and checkpoint explosive detection equipment for checked 

baggage at airports and an additional $680 million to improve infrastructure and technology at our Nation’s borders. Can you give 

an update on how much of the security funding has been spent and 

how you plan to utilize the funding over the next year? 

Secretary NAPOLITANO. Yes, and I can give you a spread sheet 

in detail, but the contracts are out, the obligations have been made. 

A number of jobs have been related to those contracts. The inline 

baggage systems are being installed in airports across the country. 

And the northern ports, the construction contracts have been let, 

and that work is underway. 

Senator KLOBUCHAR. Thank you very much. I appreciate it. 

Chairman LEAHY. Thank you, and we will stand in recess, and 

I thank you, Secretary Napolitano. 

Secretary NAPOLITANO. Thank you, Mr. Chairman. 

Chairman LEAHY. We appreciate your being here, and there will 

be follow-up questions from several other members of the panel. 

Thank you. 

[Whereupon, at 12:23 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

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