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95–323 PDF 2004

S. HRG. 108–570

STATE AND LOCAL AUTHORITY TO ENFORCE

IMMIGRATION LAW: EVALUATING A UNIFIED

APPROACH FOR STOPPING TERRORISTS

HEARING

BEFORE THE

SUBCOMMITTEE ON IMMIGRATION, BORDER 

SECURITY AND CITIZENSHIP

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

APRIL 22, 2004

Serial No. J–108–70

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ORRIN G. HATCH, Utah, Chairman 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

LARRY E. CRAIG, Idaho 

SAXBY CHAMBLISS, Georgia 

JOHN CORNYN, Texas 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

JOHN EDWARDS, North Carolina 

BRUCE ARTIM, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

SUBCOMMITTEE ON IMMIGRATION, BORDER SECURITY AND CITIZENSHIP

SAXBY CHAMBLISS, Georgia, Chairman 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LARRY E. CRAIG, Idaho 

JOHN CORNYN, Texas 

EDWARD M. KENNEDY, Massachusetts 

PATRICK J. LEAHY, Vermont 

DIANNE FEINSTEIN, California 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

JOHN EDWARDS, North Carolina 

JOE JACQUOT, Majority Chief Counsel 

JAMES FLUG, Democratic Chief Counsel 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS

Page

Chambliss, Hon. Saxby, a U.S. Senator from the State of Georgia ..................... 1

prepared statement .......................................................................................... 47

Cornyn, Hon. John, a U.S. Senator from the State of Texas ............................... 7

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, prepared 

statement .............................................................................................................. 86

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts ... 3

prepared statement .......................................................................................... 95

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

statement .............................................................................................................. 122

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 4

WITNESSES 

Harris, David, A., Balk Professor of Law and Values, and Soros Senior Justice 

Fellow, University of Toledo College of Law, Toledo, Ohio .............................. 15

Kobach, Kris W., Professor of Law, University of Missouri-Kansas City, Kansas City, Missouri ................................................................................................. 9

Malkin, Michelle, Investigative Journalist and Author, Bethesda, Maryland ... 12

Picolo, E.J., Regional Director, Florida Department of Law Enforcement, Fort 

Myers, Florida ...................................................................................................... 11

SUBMISSIONS FOR THE RECORD 

Advocates for immigrant victims of crime, April 20, 2004, joint letter ............... 34

American Council for Immigration Reform, Joan Hueter, President, Arlington, 

Virginia, letter ...................................................................................................... 40

Americans for Tax Reform, Grover G. Norquist, President, Hon. Bob Barr, 

former Member of Congress, American Conservative Union Foundation, 

David Keene, President, American Conservative, Washington, D.C., letter ... 41

Anti-Defamation League, David Schaefer, Chair, Washington Affairs Committee, Marvin Nathan, Chair, National Civil Rights Committee, New York, 

New York, letter ................................................................................................... 43

Cambridge City Council, D. Margaret Drury, City Clerk, City Hall, Cambridge Massachusetts, letter and resolution ...................................................... 45

Center for Immigration Studies, James R. Edwards, Jr., April 2003, 

Backgrounder, Washington, D.C., article ........................................................... 49

Council on American-Islamic Relations, Nihad Awad, Executive Director, 

Washington, D.C., letter ...................................................................................... 60

Department of Homeland Security, Immigration and Customs Enforcement, 

Washington, D.C., prepared statement .............................................................. 62

Douglass, John M., Chief of Police, Overland Park Police Department, Overland Park, Kansas, letter .................................................................................... 74

Federal Hispanic Law Enforcement Officers Association, Sandalio Gonzalez, 

National President, Yuma, Arizona, letter ........................................................ 75

Friends of Immigration Law Enforcement, Craig Nelsen, Executive Director, 

Washington, D.C., letter ...................................................................................... 77

Harris, David, A., Balk Professor of Law and Values, and Soros Senior Justice 

Fellow, University of Toledo College of Law, Toledo, Ohio, prepared statement ...................................................................................................................... 78

Heritage Foundation, James Jay Carafano, Ph.D., April 21, 2004, Washington, D.C., memorandum ................................................................................. 88

Human Rights Watch, Alison Parker, Senior Researcher, U.S. Program, 

Wendy Patten, U.S. Advocacy Director, New York, New York, statement ..... 90

Page

IV

Krikorian, Mark, Executive Director, Center for Immigration Studies, Washington, D.C., statement ........................................................................................ 99

Kobach, Kris W., Professor of Law, University of Missouri-Kansas City, Kansas City, Missouri, prepared statement ............................................................. 109

Lemus, Gabriela D., LULAC News, article ........................................................... 124

Malkin, Michelle, Investigative Journalist and Author, Bethesda, Maryland, 

prepared statement .............................................................................................. 125

Mexican American Legal Defense and Educational Fund, Katherine Culliton, 

Legislative Staff Attorney, Washington, D.C., statement ................................. 134

Miller, Ronald, Chief of Police, Kansas City Police Department, Kansas City, 

Kansas, letter ....................................................................................................... 143

National Association of Counties, Larry E. Naake, Executive Director, Washington, D.C., letter ............................................................................................... 144

National Council of La Raza, Michele Waslin, Ph.D., Washington, D.C., Brief . 146

National Immigration Forum, Washington, D.C.: 

Letter, September 16, 2003 ............................................................................. 166

Letter, September 30, 2003 ............................................................................. 173

Letter, August 26, 2003 ................................................................................... 174

Letter, September 30, 2003 ............................................................................. 175

Article, November 12, 2003 ............................................................................. 177

National League of Cities, Donald J. Borut, Executive Director, Washington, 

D.C., letter ............................................................................................................ 181

New Detroit, The Coalition, Detroit, Michigan, letter .......................................... 183

Norquist, Grover G., President, American For Tax Reform, Washington, D.C., 

statement .............................................................................................................. 186

Officers of law enforcement, April 21, 2004, joint letter ...................................... 189

Orloff, Leslye E., Director, Immigrant Women Program, Legal Momentum 

and Co-chair of the National Network to End Violence Against Immigrant 

Women, Washington, D.C., statement ................................................................ 194

Picolo, E.J., Regional Director, Florida Department of Law Enforcement, Fort 

Myers, Florida, prepared statement ................................................................... 224

RoperASW, Arlington, Virginia, March 2003, report ............................................ 230

San Diego County Board of Supervisors, Thomas P. Walters, Washington 

Representative, Washington, D.C., letter ........................................................... 256

Washington Times, James Edwards, Jr., June 1, 2003, article ........................... 257

(1)

STATE AND LOCAL AUTHORITY TO ENFORCE 

IMMIGRATION LAW: EVALUATING A UNIFIED APPROACH FOR STOPPING TERRORISTS 

THURSDAY, APRIL 22, 2004 

UNITED STATES SENATE, SUBCOMMITTEE ON IMMIGRATION, BORDER SECURITY AND

CITIZENSHIP, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Subcommittee met, pursuant to notice, at 3:08 p.m., in Room 

SD–226, Dirksen Senate Office Building, Hon. Saxby Chambliss, 

Chairman of the Subcommittee, presiding. 

Present: Senators Chambliss, Sessions, Cornyn, and Kennedy. 

OPENING STATEMENT OF HON. SAXBY CHAMBLISS, A U.S. 

SENATOR FROM THE STATE OF GEORGIA 

Chairman CHAMBLISS. The Subcommittee will come to order. I 

am glad we are able to have this hearing today and I appreciate 

my colleagues, Senator Cornyn and Sessions, for being here. I know 

that Senator Kennedy is on the way, and there are going to be others joining us before we conclude today. 

I particularly want to thank Senator Sessions for his efforts in 

this area. I know he has worked very hard on this issue and has 

a bill pending before the Senate and we look forward to your input 

here today. 

I also appreciate the work of my colleagues, Senator Zell Miller 

and Congressman Charlie Norwood of my State, who have also 

worked very hard on this. Congressman Norwood, of course, has a 

bill over on the House side. 

This is an important topic that covers both our anti-terrorism efforts and the changes needed in our immigration system. In the 

post–9/11 world, it is critical for us to think about immigration and 

national security with a consistent approach. 

I think there is a consensus that our immigration laws are in 

dire need of reform and today’s hearing is another step towards a 

comprehensive review. The system we have in place today lacks incentives for immigrants to come to the United States following the 

legal process in place. It also lacks enforcement against those who 

choose not to follow the legal process. It is my hope that we may 

continue the open dialogue that the President has initiated and all 

Senators will continue to work on the policy we have been addressing so far in this Congress. 

2

There are some disturbing facts that show just how serious a 

lack of immigration enforcement can be. Three of the 19 hijackers 

on September 11 were stopped by State or local law enforcement 

officials in routine traffic stops in the weeks leading up to the attacks on our Nation. In August 2001, in Arlington, Virginia, a police officer stopped Hani Hanjour for going 50 miles an hour in a 

30-mile-per-hour zone. He was driving a van with New Jersey 

plates and produced a Florida driver’s license to the officer. Hani 

Hanjour was aboard American Airlines Flight 77, which crashed 

into the Pentagon. 

On September 9, 2001, 2 days before the September 11 attack, 

Maryland State Police stopped Ziad Jarrah for driving 90 miles an 

hour in a 65-mile-per-hour zone in a rural section of I–95 near the 

Delaware State line. A videotape of the stop shows the State trooper approaching the car, obtaining the driver’s license and registration, and returning to his patrol car for a radio check of the credentials. Jarrah, who was on the CIA watch list, was given a ticket 

and allowed to go. The registration showed the car Jarrah drove 

that night was owned by Garden State Car Rental at Newark, New 

Jersey’s international airport. The car was found at the airport 

after the September 11 hijackings with the citation received by 

Jarrah still in the glove box. Jarrah had boarded United Flight 93 

that crashed in Shanksville, Pennsylvania. 

Finally, Mohammed Atta was stopped by police in Tarmac, Florida, in July 2001 and was ticketed for having an invalid license. 

He ignored the ticket and a bench warrant was issued for his arrest. He was stopped a few weeks later in a town nearby for speeding and the officer, unaware of the bench warrant, let him go with 

a warning. Hijacker Mohammed Atta is believed to have piloted 

American Airlines Flight 11 into the World Trade Center’s north 

tower. 

There is clearly a seriousness to today’s discussion. We need the 

laws to curb illegal behavior and to stop the bad guys. We also 

need laws that can be enforced and will be enforced. I am eager 

to begin that discussion, and I appreciate our witnesses being here 

today. 

Our witnesses are Professor Kris W. Kobach, former Counsel to 

the Attorney General, now professor of law at the University Missouri–Kansas City School of Law, Kansas City, Missouri. Professor 

Kobach, we are certainly glad to have you with us. 

Mr. E.J. Picolo, Regional Director, Florida Department of Law 

Enforcement from Fort Myers, Florida. Mr. Picolo, we are pleased 

to have you here. 

Michelle Malkin, investigative journalist and author, from Bethesda, Maryland. Ms. Malkin, we are certainly glad to have you 

here. 

And David A. Harris, Balk Professor of Law and Values, University of Toledo College of Law, Toledo, Ohio. Professor Harris, we 

are certainly pleased to have you here. 

Before we turn to our panel, and anticipating the arrival—here 

is Senator Kennedy right here. I will turn to my friend and colleague, Senator Kennedy, for any comments he wishes to make in 

the form of an opening statement. 

3

STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR 

FROM THE STATE OF MASSACHUSETTS 

Senator KENNEDY. Thank you. Thank you very much, Mr. Chairman, and I appreciate your courtesy, as always. I thank the witnesses for their patience here in working with us on the Senate 

schedule. 

In the past 2 years, Congress has done much to respond to the 

terrorist attacks of 9/11. We have authorized the use of force 

against terrorists and those who harbor them. We have enacted 

legislation to strengthen security at our airports, seaports, borders, 

and have given law enforcement intelligence officials greater powers to investigate and prevent terrorism. 

But not every measure or action proposed after 9/11 has been effective, legal, or fair. The Attorney General has used the fear of 

terrorism to justify actions that affect the most basic rights in our 

society, and one of the most controversial and counterproductive 

policies the Justice Department has pronounced is the use of State 

and local law enforcement agencies to enforce the immigration 

laws. 

A Heritage Foundation paper published yesterday criticizes the 

very legislation that this hearing is examining today, and I also 

have many letters and statements from law enforcement agencies, 

domestic violence advocates, and other organizations, liberal and 

conservative, proposing this policy and I would like to submit these 

documents for the record. 

Chairman CHAMBLISS. Certainly, without objection. 

Senator KENNEDY. Mr. Chairman, the Heritage paper sums it all 

up for us. The proposed policy, quote, ‘‘takes exactly the wrong approach, inappropriately burdening State and local enforcement and 

providing insufficient protections for civil liberties.’’ It is unnecessary because adequate authority already exists. Besides unreasonably burdening local law enforcement, irreparably damaging community policing and undermining the safety of our neighborhoods, 

this policy will impose heavy financial costs on State and local governments. 

The Congressional Budget Office cost estimate says that implementing a proposal like this will cost $9 billion over a 5-year period. That is a lot of money spent on a policy that many law enforcement and security experts believe will undermine national security. 

Since 9/11, security experts have repeatedly stated that good intelligence is the key to national security. Helpful information comes 

from all sources, including immigrants. Local communication shuts 

down. Immigrants are afraid to approach law enforcement officials. 

We will forfeit important information and jeopardize the security of 

our Nation. At this critical time, we must keep all lines of communication open. We cannot afford to undermine the trust of entire 

communities nor destroy the successes that police departments 

throughout the United States have achieved through community 

policing. 

If this policy is implemented, it would effectively create a class 

of criminals that would be immune to prosecution. Immigrant victims of crime or witnesses would not report crimes or seek assistance for fear of being arrested by the police. Criminals would not 

4

be held accountable for their actions because no one will come forward. 

State and local enforcement of immigration laws also invites discrimination and racial profiling since local police do not now receive adequate training to understand our complex and ever-changing immigration laws. In fact, none of the bills pending in Congress 

mandates such training. Local police will not be able to distinguish 

between an immigrant who is here legally and another who is not. 

Current law also provides ways to create effective partnerships 

between local law enforcement offices and Federal agents. States 

and localities can enter into memorandums of understanding with 

the Federal Government to confer civil immigration law enforcement powers on their local officers after extensive training in immigration. Florida and Alabama already utilize these MOUs. This 

MOU policy gives States the option and the flexibility to use use 

of their police in ways that meet the real needs of their residents. 

So I commend the chair for calling this important hearing, look 

forward to the testimony. We need to achieve the right balance between protecting our country from terrorism and respecting the 

rights of our citizens and immigrants, and I am confident we can 

strike a fair and effective balance without mandating State and 

local enforcement of Federal immigration laws. I thank you, Mr. 

Chairman. 

Chairman CHAMBLISS. Thank you. 

I now turn to Senator Sessions for any opening statement you 

might wish to make. 

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

THE STATE OF ALABAMA 

Senator SESSIONS. Thank you, Mr. Chairman, very much for having this hearing. The topic that we are having today is one that I 

care deeply about. It is the ability of State and local law enforcement to voluntarily aid—to voluntarily aid—the Federal Government in enforcement of immigration law, and the bill that I have 

offered and Senator Zell Miller and Larry Craig and others have 

cosponsored is not the clear act referred to by Senator Kennedy 

and does not require State and local law officers to do anything. 

It gives them the ability to do so, but it does not require them to 

do so. 

The bill that I have offered, and it won’t be the detailed subject, 

as I understand, of today’s hearing, will clarify the authority of 

State and local police to act voluntarily. It will ensure that State 

and local police have access to immigration-related information 

through NCIC, which has not cleared it, not today, and will increase Federal detention and removal resources to support those 

local law enforcement officers. 

Just as the Chairman said in his opening comments, many times, 

it is these officers out enforcing traffic regulations that come in 

contact with the most dangerous of criminals. S. 1906 does not 

commandeer State and local law enforcement and does not require 

them to do anything. 

I am proud that Alabama, along with Florida, have entered into 

memorandums of understanding with the Department of Homeland 

Security to be extensions and effective extensions of their ability to 

5

enforce these laws. I think that is a healthy thing. But it is a big 

deal and a complicated procedure and the fundamental value of a 

police officer on the street should not be denied simply because 

they haven’t gone to a two-week school. 

We need comprehensive reform in immigration, as the Chairman 

said, but I don’t believe we will achieve that until we have integrity 

in the system. That means a lot of things. One of the things it 

means is we cannot push aside the 650,000 State and local officers 

as we currently do and say to them, don’t bother with immigration 

enforcement. It is a signal that we have no interest in getting a 

handle on the terrorists who come into our country and no interest 

in enforcing our laws. 

A lack of immigration enforcement in our country’s interior has 

resulted in eight to ten million illegals in this country, making it 

easy for criminal aliens to just disappear within our borders. Of 

those here illegally, the Department of Homeland Security has estimated that 450,000 are alien absconders, that is, people who are 

under court order and just absconded and disappeared. Eighty-six 

thousand are criminal illegal aliens, people convicted of crimes, 

subject to being deported, in this country and they have disappeared and been released, and 3,000 of those are from countries 

designated by the State Department as state sponsors of terrorism. 

So why can’t we just find and deport these absconders, criminal 

aliens, and terrorist threats? The answer is simple. Leaving the job 

of interior immigration enforcement solely to the mere 2,000 Federal interior agents inside our borders guarantees failure. The 

number of illegal aliens outweighs them 5,000 to one. It is obvious 

that State and local police, a force of 650,000 strong, sworn to uphold the law, with powers to arrest mayors and Governors and, yes, 

United States Senators, certainly should be allowed to enforce immigration laws and should have the power to arrest those who are 

illegally here and not citizens of the United States. 

We know the American people care about this strongly. I have 

a poll, I just would point out, that came out last March, a Roper 

poll, ‘‘Americans Talk About Immigration.’’ Eighty-eight percent of 

Americans agree, and 68 percent strongly agree, that Congress 

should require State and local law enforcement agents to notify 

INS, now ICE, the local law enforcement, when a person is here 

illegally or presented fraudulent documentation. 

It is also clear that, additionally, 85 percent of Americans agree, 

62 percent strongly agree, that Congress should pass laws requiring State and local law enforcement agencies to apprehend and 

turn over to INS illegal immigrants with whom they come in contact. In fact, they are shocked it is not happening now. 

It is clear that the first problem preventing State and local law 

enforcement from participating in immigration enforcement is confusion over authority, Mr. Chairman. A few years ago, police from 

Alabama started telling me that they have given up on calling INS 

because INS tells them they have to have 15 or more illegals before 

they would bother to come and pick them up. This is the pattern 

all over America. They were basically told also they could not detain people and wait for INS to come. So they were told, in effect, 

no matter who you apprehend, to let them go. So I believe that telling police this is wrong. It is unwise and we can fix it. 

6

Only two circuits, the Tenth and Ninth, have expressly ruled on 

State and local law enforcement authority to make arrests on immigration law violations. Both of them confirm that authority. The 

only confusion that exists really is dicta in a 1983 Ninth Circuit 

case which addressed whether the authority to investigate and 

make arrest changes if the immigration violation is a civil one and 

not a criminal. 

This confusion was fostered by a Department of Justice memorandum in 1996 from the Office of Legal Counsel. However, the relevant section of that opinion has since been withdrawn by the Department of Justice. While the confusion seems minor, the threat 

of lawsuits and of confusion over authority has, in effect, helped 

paralyze State and local police who are willing to participate. 

Problem number two, the Federal agency responsible for immigration enforcement told police chiefs in Alabama to let them go, 

mainly because they didn’t have the personnel to pick them up or 

the detention space to detain all apprehended aliens. A mere 2,000 

officers and less than 20,000 appropriated detention beds, we have 

got to have more attention to that issue. 

In February of 2003, a DOJ Inspector General report entitled 

‘‘Immigration and Naturalization Service Removal of Aliens Issued 

Final Orders’’ found that 87 percent of those not detained before 

an order of removal was issued were never deported—87 percent. 

Dedicating the Federal resources needed to effectively pick up and 

detain illegal aliens apprehended and arrested by State and local 

law offices is a necessity if we are serious about enforcement. 

Problem number three, the first recommendation of the Hart–

Rudman Commission, the Commission’s report entitled ‘‘America 

Still Unprepared, America Still in Danger,’’ that bipartisan report, 

their first recommendation was, quote, ‘‘to tap the eyes and ears of 

State and local law enforcement officers in preventing attacks,’’ and 

examples you read at the beginning, Mr. Chairman, are just what 

we are talking about. The report specifically suggested that ‘‘the 

burden of identifying and intercepting terrorists in our midst could 

and should be shared with America’s 650,000 county, State, and 

local law enforcement officers, but they clearly cannot lend a hand 

in a counterterrorism information void,’’ close quote. 

The burden could and should be shared with America’s 650,000 

State and local officials, but they cannot lend a hand in an information void. State and local police are accustomed to checking for 

criminal information in the National Crime Information Center 

database, which is maintained by the FBI. They can access it from 

roadside when they pull a car over or to stop a suspect. 

But separately, ICE operates the Law Enforcement Support Center, which makes immigration information available to State and 

local police, but it requires a second check, an additional check to 

NCIC by the local police officer. This second check is not known by 

most officers. They don’t know how to access it. They have no idea 

who to call and they are not doing so and it does not work. It 

should be in the main system without doubt. 

As part of its Alien Absconder Initiative, ICE is already in the 

process of entering information on the estimated 450,000 absconders in the NCIC. But as of October 31, only 15,000 of those 450,000 

had been entered in the NCIC, a number I find just unacceptable. 

7

And by February of this year, ICE had increased the number of illegal absconders in NCIC from 15,000 to a mere 25,000, a number 

still totally unacceptable. 

In a letter to me on February 12 of this year, ICE said it was 

committed to using NCIC to its maximum effectiveness as a tool 

for sharing immigration-related information. Therefore, entry of 

alien absconders must rapidly increase and additional immigrationrelated information must be entered into the NCIC. 

I know that there are groups that are opposed to this. Essentially, I would conclude that every time a proposal is set forth that 

has any significant capacity to actually work, identify and remove 

people who have violated the laws of the United States, those matters draw objections and the objections are for a host of different 

reasons, but they all have one goal, to frustrate a system that actually works. 

It is time for us to reform immigration law, as I know the Chairman believes, and make it better and allow more good people to 

come to this country who are entitled to this country. We are a nation of immigrants. We welcome immigrants who want to come 

here and we can increase that number that is coming legally, but 

at the same time, we need to make clear that those who do not follow the law will be apprehended and detained and the best course 

is to come legally rather than illegally. 

Thank you, Mr. Chairman, for allowing me to take a little extra 

time to share those thoughts. 

Chairman CHAMBLISS. Thank you. 

We will now turn to Senator Cornyn for any comments you have 

or for an opening statement. 

STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM 

THE STATE OF TEXAS 

Senator CORNYN. Thank you, Chairman Chambliss. I want to 

also express my gratitude to you for holding this hearing and other 

hearings you have had on related matters pertaining to immigration law reform. This is relevant, it is current, and the issue is not 

going away and we might as well come to grips with it. 

I am very interested in exploring the issues that are being raised 

in this particular hearing because my professional background as 

a judge and Attorney General has taught me that in a nation of 

laws, the failure to respect any of those laws leads generally to the 

disrespect for all the laws. I don’t think that law enforcement 

should have the liberty nor should they be denied the resources 

such that they merely pick and choose which laws to enforce and 

what laws they will ignore. I believe that we can and we should 

enforce all of our laws. 

Now, let me be clear. I don’t think we should federalize our State 

and local police forces and that is not what I understand this issue 

to be. What I understand the issue to be, and I think Senator Kennedy put his finger on two of those, one is the cost and the other 

has to do with training. To me, those are absolutely essential ingredients in doing what this hearing suggests might be a viable option. 

I don’t believe we should go down the path of unfunded mandates that burden already strapped State and local police departVerDate 0ct 09 2002 14:52 Aug 19, 2004 Jkt 095309 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\95323.TXT SJUD4 PsN: CMORC
8

ments. Yet at the same time, it makes sense to me that we explore 

the possibility of having 650,000 State and local law enforcement 

officials, who are by their very nature the eyes and ears of the community, work with and not against the Federal Government when 

it comes to enforcing our immigration laws. 

As we all know, the Department of Homeland Security, and Senator Sessions mentioned this, has about 2,000 interior enforcement 

agents who are simply overwhelmed. They are overwhelmed by the 

800,000-plus illegal entries in this country each year in the late 

1990’s. As we all know, Mr. Chairman, from previous testimony at 

other hearings, they are overwhelmed in almost every sense of the 

word. They are drowning in a very difficult challenge when it 

comes to enforcing our immigration laws and I think we ought to 

give them the help that they need in order to do what America 

needs, and that is to enforce our laws. 

Now, we have heard the argument that any information shared 

by State and local law enforcement authorities with the Federal 

immigration officials will destroy community policing initiatives as 

a crime-fighting tool. Certainly, community policing initiatives are 

vital tools used by law enforcement all across the country. But I 

am simply not convinced that voluntary cooperation and information sharing by State and local officers with Federal immigration 

enforcement officials will make communities less safe. To the contrary, I think it seems almost self-evident that it will make communities more safe if it is done the right way. 

So I look forward to hearing today’s testimony. I am specifically 

interested to hear how we can ensure that State and local governments are not financially burdened if Senator Sessions’ bill or 

something like it is enacted, and I am concerned by the provisions 

that eliminate certain SCAAP funding because, of course, that has 

a huge impact on the State of Texas. Right now, the Federal Government does a very poor job of living up to its responsibilities with 

the financial burdens that are being borne by border States when, 

in fact, it is the Federal Government’s responsibility, and this is 

just one area. So I am very interested in hearing what impact this 

type of legislation might have on that State Criminal Alien Assistance Program funding. 

And with that, thank you again, Mr. Chairman. 

Chairman CHAMBLISS. Thank you, Senator Cornyn. 

We will now proceed to our panel, and I would tell each of you 

that we have your full statement, which will be entered in the 

record, and we would ask that you summarize that statement. 

Professor Kobach, we will start with you. 

Senator SESSIONS. Mr. Chairman, could I just make one point? 

I know that several bills have floated similar to this, but in the legislation I am offering, there would only be—SCAAP monies would 

only be in jeopardy if the State or locality actually stated a policy 

prohibiting communications between Federal and local law enforcement over immigration issues. A few may have done that, but 

none, that I know of, significant departments have done that. 

Chairman CHAMBLISS. So noted for the record. 

Professor Kobach? 

9

STATEMENT OF KRIS W. KOBACH, PROFESSOR OF LAW, UNIVERSITY OF MISSOURI-KANSAS CITY, KANSAS CITY, MISSOURI 

Mr. KOBACH. Thank you, Mr. Chairman, Senators. As has been 

noted, the 9/11 terrorists were able to enter our country undetected. Three overstayed their visas with impunity and all moved 

relatively freely throughout the country without effective interference from local law enforcement. It is also clear that the effective assistance of State and local law enforcement can mean the 

difference between success and failure, not only in enforcing our 

immigration laws, but in the war against terrorism on the domestic 

front. 

But what I would like to do is briefly summarize the legal authority upon which State and local police may act. That is the legal 

authority aside from provisions of delegated authority in Section 

287(g). 

It has long been recognized that there is this legal authority for 

State and local police to arrest aliens who have violated criminal 

provisions of the Immigration and Nationality Act. Where some 

confusion has existed, as Senator Sessions mentioned, in recent 

years is on the question of whether that same authority extends to 

civil provisions of the INA. This confusion was, to some extent, fostered by an erroneous 1996 opinion of the Office of Legal Counsel 

of the Department of Justice. The relevant provision has since been 

withdrawn by OLC. 

However, the law on this is quite clear. Arresting aliens who 

have violated either the criminal provisions of the Act or the civil 

provisions that render them deportable is within the inherent authority of the States, as the Attorney General has said, and such 

inherent arrest authority has never been preempted by Congress. 

This conclusion has been confirmed by every court to squarely address the issue. That said, I will proceed to offer my personal opinion as to why this conclusion is correct and I offer this analysis 

purely in my capacity as a law professor and not as a representative of the Bush administration. 

It is well established that the authority of State and local police 

to make arrests for violation of Federal immigration law is not limited to those—or Federal law of any sort—is not limited to those 

situations where they are exercising delegated Federal power. 

Rather, such arrest authority inheres in the States’ status as sovereign entities. This is the same inherent authority that exists 

when, say, a State law enforcement officer observes the commission 

of a Federal crime and goes ahead and makes the arrest. That officer is not acting pursuant to some delegated Federal power. Rather, he is simply exercising inherent power of one sovereign to assist 

another sovereign, and there is abundant case law on this point. 

I would direct the Committee to U.S. v. Di Re and Millier v. United 

States. The Ninth and Tenth Circuits have expressed this understanding 

in the immigration context specifically. The Tenth Circuit has reviewed the question on several occasions, concluding squarely that, 

quote, ‘‘a State trooper has general investigative authority to inquire into possible immigration violations,’’ end quote. That is from 

Salinas-Calderon. 

10

Having established that this inherent authority exists, the next 

legal question is whether such authority has been preempted by 

Congress. In all forms of Congressional preemption that our courts 

recognize, there must be some manifest intent of Congress to preempt and displace this existing State authority, and the critical 

starting assumption has to be that the Federal Government does 

not normally intend to deny itself any assistance that the States 

might offer, and that presumption is a long-established one from 

the case of Marsh v. United States. But beside those presumptions as they are, in 1996, Congress expressly put to rest any suspicion that it did not welcome State and 

local assistance in making arrests in immigration law. Congress 

added Section 287(g) of the INA providing for these written agreements, but in doing so, Congress stated that a formal agreement 

is not necessary for, quote, ‘‘any officer otherwise to cooperate with 

the Attorney General in the identification, apprehension, detention, 

or removal of aliens not lawfully present in the United States,’’ end 

quote. That is from 1356(g)(10). 

Moreover, the case law supporting the conclusion that Congress 

has not preempted State arrests of aliens for civil provisions of the 

INA is solid and on point. Again, looking at the Tenth Circuit, you 

have the case of U.S. v. Vasquez-Alvarez in 1999. I would also direct the Committee to the Fifth Circuit opinion in Lynch v. 

Canatella in 1987. 

Finally, on the subject of preemption, it must be noted that if 

there were a conclusion that somehow the preemption had occurred 

in the criminal arrest authority but not in the civil arrest authority, then that conclusion would have to be reached through what 

is called field preemption. But field preemption would require a 

conclusion, or somehow would require us to believe that there is a 

pervasive regulatory scheme in civil violations of the Act, but there 

is not a pervasive regulatory scheme in criminal violations of the 

Act. That is, to put it lightly, absurd. 

The criminal and civil violations are woven together. They are 

part of one complete Act and some violations are civil and some 

constitute criminal penalties, or trigger criminal penalties. But 

there is not a separate kind of regulatory structure that would lead 

to such a split preemption conclusion, if that makes sense. 

I want to summarize by talking about a few situations in which 

it is critical that State and local police exercise this authority. One 

is observation of suspicious activity that is potentially connected to 

terrorism. I can’t give the details of actual cases in this testimony, 

but suffice it to say that I can say that I have personally seen in 

my capacity when working in the Justice Department cases where 

State and local police observed suspicious activity and used their 

inherent arrest authority to go ahead and make an arrest on immigration grounds. My written testimony gives some examples of how 

that might be constructed. 

The second area where it is critical is in NCIC listings. As has 

already been mentioned, there are several types of aliens being listed in NCIC right now. The current number as of March 1 is up to 

28,000 absconders. The results are pretty impressive. When you 

cast that wide a net, and you basically are looking at everyone who 

gets a speeding ticket, you can achieve real results. Of those 28,000 

11

listed, 8,500 have been arrested at this point. So it is an effective 

way of looking for people who have made a mockery of our rule of 

law. People have already had their day in court and lost. We have 

got to rely on the NCIC system. 

In addition, NCIC is critical for terrorist-related alien violators 

of our immigration law. The NSEERS system, the special registration system, has targeted people who are of particularly high risk 

and their activity leads to believe that they may be involved in terrorism. There are over 50, now, NSEERS violators who are of such 

high risk that they have been placed in NCIC. That is a critical 

subset of aliens, as well as the deported felons file, which has been 

in NCIC since the Clinton administration. So it is critical to make 

sure that that way of getting information to State and local police 

continues to be effective. 

I want to also note that the interception of alien smuggling is another case where this inherent authority, to the extent that it can 

be maximized and can be encouraged by Congressional action, 

should be undertaken. There are many documented cases where 

State and local police intercept a truckload of aliens being smuggled across the border, and for one reason or another, they do not 

feel that they have the authority to make the arrest. Not only is 

that, of course, a threat to the lives of the aliens being smuggled, 

but it is a huge gap in our law enforcement when there are the 

eyes and ears of law enforcement on the front line and yet in some 

cases they do not feel that they have the authority or the resources 

to back them up in assisting the Federal Government. 

That said, let me just conclude by saying that it is clear that 

there is massive untapped potential to make real headway in the 

war against terrorism and in the enforcement of our immigration 

laws and I think this bill would be a great step in tapping that potential and moving forward on this question. 

Chairman CHAMBLISS. Thank you, sir. 

[The prepared statement of Mr. Kobach appears as a submission 

for the record.] 

Chairman CHAMBLISS. Mr. Picolo, we are certainly glad to have 

you here and look forward to your testimony. 

STATEMENT OF E.J. PICOLO, REGIONAL DIRECTOR, FLORIDA 

DEPARTMENT OF LAW ENFORCEMENT, FORT MYERS, FLORIDA 

Mr. PICOLO. Thank you very much, Mr. Chairman. As you are 

aware, Florida in July of 2003 entered into the first of its kind delegated authority MOU with the then-Department of INS for 287(g). 

That was predicated on our efforts in Florida with our Regional Domestic Security Task Forces to work domestic security and terrorist-related investigations in our own State. The task forces were 

established by statute just after the 9/11 atrocities. 

As a result of our frustrations with the Federal system as it exists currently, we approached the INS about the possibility of the 

287(g) authority being delegated to certain law enforcement officers 

in our State and successfully negotiated with them an MOU, which 

was signed in July of 2002 by then-INS Under Secretary as well 

as our Commissioner, or Governor Jeb Bush. 

12

Since that time, we have had an active—we trained our 35 local 

law enforcement officers. They attended a five-week comprehensive 

training program put on by the INS. They have subsequently been 

retrained, another week-long training program to provide some additional refresher training. We have worked hundreds of cases 

throughout our State, made a couple of hundred arrests as a result 

of this MOU with absolutely no complaints from any community 

groups, no complaints from any individual that has been arrested 

regarding any violation of rights or anything of that nature. So we 

are very proud of our efforts. 

We have had some problems as a result of the formation of 

Homeland Security with the continuing efforts related to our MOU. 

Quite frankly, when that legislation was passed and that new Federal agency was established, it created a situation where I think 

it takes a while for them to organize and understand their own 

mission. 

As a result of that, we lost our supervisory special agents at each 

of our task forces. One of the primary focuses of our MOU is every 

task that we complete under our Federal authority is done under 

the supervisory authority of an ICE special agent supervisor. Those 

individuals have subsequently been pulled from our task forces, 

which essentially means that our MOU is not effective. We can’t 

enforce the MOU by policy without the INS individual, or the ICE 

supervisors there. 

We strongly support the continuation of 287(g) and similar authority in our counterterrorism efforts. 

Three weeks ago, we met with representatives from ICE in our 

Commissioner’s office, along with Collier County Sheriff Don 

Hunter and representatives from ICE in Washington and Tampa 

Bay to work out our differences. These outcomes are still under review. The ICE has renewed its commitment to continue our project 

and provide the proactive effort to prevent it from becoming simply 

a stand-by program. Additionally, FDLE and ICE have agreed to 

support another cross-designation class which will provide an additional 35 cross-designated officers in the State of Florida. 

In closing, Florida strongly supports the continuation of our 

287(g) cross-designation program. We believe this authority provides a strong force multiplier for our Federal partners and our collective efforts to limit the possibility of another terrorist attack. We 

remain willing and able to assist our Federal partners in these efforts. By remaining committed to our use of trained personnel and 

domestic security-related investigative efforts, we are assuring that 

these highly-trained officers will be put to the best use, thereby 

protecting Florida and the nation. 

I look forward to your questions. 

Chairman CHAMBLISS. Thank you, sir. 

[The prepared statement of Mr. Picolo appears as a submission 

for the record.] 

Chairman CHAMBLISS. Ms. Malkin? 

STATEMENT OF MICHELLE MALKIN, INVESTIGATIVE 

JOURNALIST AND AUTHOR, BETHESDA, MARYLAND 

Ms. MALKIN. Mr. Chairman and members of the Subcommittee, 

thank you for the privilege of testifying before you today. I apVerDate 0ct 09 2002 14:52 Aug 19, 2004 Jkt 095309 PO 00000 Frm 00016 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\95323.TXT SJUD4 PsN: CMORC
13

proach today’s topic from two levels, as a second-generation American whose immigrant parents arrived here legally in this great 

country three decades ago and also as an investigative journalist 

who has reported extensively on the consequences of lax immigration enforcement. My interest is in seeing the failures of immigration enforcement remedied effectively so that the American dream 

remains accessible to those who embrace freedom and respect the 

rule of law. 

There has been much public debate here in Washington over the 

past few weeks about the wall of separation between the CIA and 

FBI because the bureaucratic barricade between agencies prevented crucial information sharing about potential terrorist 

threats. But there is another dangerous barricade that impedes 

communications between investigators and undermines our safety 

and security. It is the wall between Federal immigration authorities and State and local law enforcement officials. Terrorists and 

criminal aliens alike have benefitted directly and indirectly from 

this barrier. 

When 9/11 hijackers Hani Hanjour and Khalid Almidhar needed 

help getting fraudulent government-issued photo I.D.s, they simply 

hopped into a van and headed to the parking lot of a 7–Eleven 

store in Falls Church, Virginia, and that is where scores of migrant 

day laborers supplied bogus identity papers to other illegal aliens 

from around the world. During my research, I visited the 7–Eleven. 

It is just a stone’s throw from the Pentagon, where Hanjour and 

Almidhar deliberately crash-landed American Airlines Flight 77. 

Well, the parking lot was, as usual, filled with so-called undocumented day laborers and the local cops that I interviewed suspect 

that most of these men are here illegally and that they continue 

to facilitate trade in fake I.D. documents, but nobody arrests them, 

and this is an all too familiar scene. Public officials talk tough 

about the need for improved cooperation among local, State, and 

Federal authorities to secure the homeland, and yet several areas 

of the country remain safe havens for criminal aliens and as 

magnets for immigration outlaws with far more nefarious aspirations. 

The overwhelming majority of illegal aliens, of course, have no 

connection to terrorism, but they are breaking the law, and one of 

the key lessons of 9/11 was that our continued high tolerance for 

massive illegal immigration gives terrorists and criminal aliens 

deadly cover. Remember, more than half of the 48 Islamic radicals 

convicted or tied to recent terrorist plots in the U.S. over the past 

decade either were themselves illegal aliens or relied on illegal 

aliens to get fake I.D.s. 

The dangerous public safety impact of this other wall reaches beyond terrorism. Last spring, I reported on the case of David 

Montiel Cruz, also known as Enrique Sosa Alvarez. He was an illegal alien from Mexico who dragged a 9-year-old girl from her San 

Jose, California, home in broad daylight and he faces trial later 

this summer for kidnapping and raping her over 3 days. This case 

stands out as a textbook example of the continued failures of interior immigration enforcement. 

According to the San Jose P.D.’s official policy manual, officers 

may not, quote, ‘‘initiate police action when the primary objective 

14

is directed towards discovering the alien status of a person,’’ unquote. Translation: San Jose cops are prevented from proactively 

contacting the Feds if they suspect violations of immigration law 

in the course of their duties. Quote, ‘‘Our department is very lenient,’’ unquote, when it comes to illegal aliens, San Jose P.D. 

Spokeswoman Katherine Unger told me. ‘‘We don’t do anything on 

immigration,’’ she lamented. It is not, you know, politically correct. 

It is frustrating. 

It is important to note that this other wall is not just a one-way 

obstruction. In untold instances, cops have reached out to the Feds 

only to be ignored or rebuffed. A couple examples. 

On Memorial Day weekend, 2002, with the nation on high alert, 

NYPD officers contacted the then-INS and attempted to turn in 

seven illegal aliens from the Middle East who had been arrested 

with false I.D.s near a major tunnel. The agency ordered the furious cops to release the men, who were all admitted illegal aliens. 

And just this week, four illegal aliens suspected of felony crimes 

walked free—walked free—in White County, Arkansas, after the 

Feds explained to local law enforcement that they cannot automatically expel the men just because they are here illegally. Quote, ‘‘I 

had to hand this guy his car keys and allow him to walk out the 

door,’’ Detective Randy Rudisill said. ‘‘He is not even supposed to 

be in this country and he admitted he was here illegally, but we 

can’t do a thing about it. Our hands are tied.’’ 

Even if every State were to enter into cooperative agreements 

with the Feds to train the nation’s 600,000-plus State and local law 

enforcement officers to enforce immigration law, little would 

change without an effective system of detention and deportation 

that puts an end to the standard procedure of catch and release. 

This policy undermines homeland security and has cost lives, and 

in my written testimony, I cite a number of examples of that. The 

bottom line is that increased enforcement and collaboration cannot 

succeed without greatly expanding the Federal Government’s 

20,000-bed detention capacity. 

What happens when the wall between Federal immigration authorities and local law enforcement officers is surmounted? In at 

least one case, the decision likely saved untold lives. A year and 

a half ago, I reported on the extraordinary circumstances surrounding convicted D.C.-area snipers Lee Malvo and John Mohammed. 

On December 19, 2001, Bellingham, Washington, Police Detective 

Al Jensen called the Border Patrol for assistance during a domestic 

dispute involving Malvo, his mother, and John Mohammed. The detective suspected that Malvo and his mother were illegal aliens and 

the Border Patrol confirmed their unlawful status and processed 

them as deportable aliens. Malvo and his mother were 

fingerprinted and photographed and later released pending deportation proceedings, against the recommendation of the Border Patrol. 

As we all now know, Malvo and Mohammed went on to carry a 

bloody rampage that terrorized the greater Washington, D.C. area 

and took the lives of ten innocent people. The toll probably would 

have been higher if not for Police Detective Jensen’s decision to call 

the Border Patrol and have Malvo processed as an illegal alien. His 

15

prints were taken by the Border Patrol and formed in the former 

INS, now ICE database called IDENT and they were found at an 

Alabama liquor store crime scene. Those prints were critical in unraveling the sniper case. 

Now, neither Detective Jensen nor the Border Patrol agents 

could have foreseen the havoc that Malvo helped create, but in the 

course of just doing their jobs together, one local cop and two Federal immigration officers may have averted an even greater public 

disaster. 

I think this case underscores the importance of basic routine cooperation between local and State police and Federal immigration 

authorities. Police officers are sworn to uphold the law and to enforce it when they have reason to believe that the law is being broken. Local cops don’t sit back and watch bank robbers escape because they lack jurisdiction over a Federal crime. A State trooper 

wouldn’t look the other way, one hopes, if he spotted someone 

breaking into a U.S. Postal Service mailbox or committing arson in 

a national forest. Just because immigration law enforcement is not 

a local cop’s primary responsibility doesn’t mean that he must or 

should ignore indications that these Federal laws are being broken. 

S. 1906 would help break down this other wall by affirming the 

inherent authority of States and their political subdivisions to apprehend, arrest, detain, or transfer illegal aliens to Federal custody. It would increase criminal penalties for illegal entry into the 

U.S., improve information sharing, and it would address the Federal detention space crunch. 

I think that these steps all reflect a fundamental principle that 

must be adopted to make homeland security meaningful, namely 

that immigration law breaking must carry real consequences in a 

post-September 11 world. Thank you. 

Chairman CHAMBLISS. Thank you, Ms. Malkin. 

[The prepared statement of Ms. Malkin appears as a submission 

for the record.] 

Chairman CHAMBLISS. Professor Harris? 

STATEMENT OF DAVID A. HARRIS, BALK PROFESSOR OF LAW 

AND VALUES, AND SOROS SENIOR JUSTICE FELLOW, UNIVERSITY OF TOLEDO COLLEGE OF LAW, TOLEDO, OHIO 

Mr. HARRIS. Thank you very much, Mr. Chairman and members 

of the Committee. I appreciate very much the opportunity to speak 

to you today about this important legislation. 

Over the past year, I have had the opportunity to travel the 

country interviewing police officers for a new book I am doing. I 

have interviewed police chiefs, captains, lieutenants, many, many 

patrol officers, and I have been really surprised at the one theme 

that has jumped out at me time after time after time, and that is 

this. Please do not get us saddled with the job of doing enforcement 

of immigration law. This is a constant, recurring theme for local 

and State police, and I am privileged to be here today to see if I 

can try to give voice to why local and State police do not want this 

responsibility and why they feel it is more properly a Federal responsibility. 

Point number one, and it goes directly to what Senator Cornyn 

was raising in his statement. I want to come right to that, and that 

16

is this. There is probably no single innovation or program in policing that has been more successful or more widely adopted than 

community policing. Even police departments that do not have a 

community policing program have adopted wholeheartedly its core 

concept, and that is the police cannot do the job of making the 

streets safe alone. 

They need the community with them. They need a relationship 

with the community. They need a partnership with the community. 

Why? Because even the dumbest criminals don’t usually do their 

business in front of the police, so the police need information. They 

need intelligence. They need people to tell them where the criminals’ business is going on and who is doing it. It is that simple. 

If they want that information, they have to have relationships of 

trust with every community that they protect and serve. Now, forging those kinds of relationships is very difficult under the best of 

circumstances. It is doubly difficult for immigrant communities to 

forge such relationships with police departments. You have barriers 

of language. You have differences in culture. Police have been diligent, have done a great job building those bridges under some very 

difficult circumstances. 

In those immigrant communities, and when I say immigrant 

communities, I am not just talking about the big cities. I am talking about cities of all sizes, towns all over the country. The fastestgrowing immigrant communities in this country are no longer in 

the Southwest, in Texas and in Florida and California. They are in 

places like Georgia. They are in places like Arkansas. They are all 

over this country. 

So police departments everywhere face these issues, and when 

they go into immigrant communities, some of the people in those 

communities are illegal. That is a fact and it is a fact we cannot 

get around, and police know that their success in working with 

these communities and getting information and making the streets 

safe depends on working with all members of those communities. 

If the people in those communities don’t trust the police, if they 

fear them because they think that the police are working with immigration and have an interest in deporting them, those people will 

not report crimes. They will not offer assistance. They will simply 

act out of the basic human emotion of fear, and that will cut off 

the flow of information to the police. 

I agree very strongly that we should look at local and State police as our eyes and ears in the community. If we want those eyes 

to see things and ears to hear things, they must be in touch with 

the people they serve, whether those people are legal or illegal. 

That is why local and State police officers, to a person that I 

spoke to, said over and over, please, don’t put us down this path. 

They say, I want to serve everybody in my community. I want to 

protect everybody. I don’t care what the status of a person is, if a 

woman is, if she has been raped. I don’t care what the status is 

of a victim of domestic violence. I want those people made safe. 

That is my job and I am going to do it. 

Two things happen when the police officer doesn’t get information and doesn’t get contacted out of fear of deportation. Two things 

happen. Number one, the victim is not served. Number two, and 

17

this is very important, the predator remains on the streets to strike 

somebody else, and that is not a cost that anybody wants to pay. 

Two other points kept coming up in my conversations with police 

officers. One was resources. They are simply stretched to the limit. 

They have all kinds of new responsibilities with homeland security. 

They have many things on their plates. To give them a new job 

now with no new resources to do it under the threat of losing Federal funds if they don’t decide to voluntarily cooperate in a time of 

the tightest State and local budgets in a generation, there is no 

choice involved here, really. They are going to have to go along 

with this and they don’t want to be forced to do that. It will take 

resources away from their other priorities, the priority, the breadand-butter priority of making the streets safe. 

Last but not least, they had another concern. That concern is 

training. Training is important here because immigration law is incredibly complex, incredibly complex. I was very interested to hear 

what Mr. Picolo said about the training that his men got under the 

MOU, five weeks plus another week of in-service. That is the way 

we have to go if we want this done right. Without the training, we 

are sending our officers out there into a potential disaster, and the 

losers will be the police because it is their relationship with the 

public that will be undermined. 

Thank you very much for the opportunity to speak to you and I 

look forward to your questions. 

Chairman CHAMBLISS. Thank you very much, Professor. 

[The prepared statement of Mr. Harris appears as a submission 

for the record.] 

Chairman CHAMBLISS. Mr. Picolo, let me start with you. Your 

287(g) was entered into, your MOU was entered into in July of 

2002, correct? 

Mr. PICOLO. Yes, sir. 

Chairman CHAMBLISS. If you had had— 

Senator SESSIONS. Mr. Chairman, you might note that MOU is 

a memorandum of understanding. 

Chairman CHAMBLISS. I am sorry. 

Senator SESSIONS. I didn’t define that, either, when I was talking. 

Chairman CHAMBLISS. This is a town of acronyms and we tend 

to get wrapped up in that sometimes, so thank you, Senator Sessions. 

The memorandum of understanding that you entered into was in 

July of 2002. If you had had that exact MOU in place in July of 

2001 when Mohammed Atta was stopped that second time for a 

traffic violation and when a bench warrant was issued, what likely 

would have happened as a result of that MOU being in place? 

Mr. PICOLO. I think we would have had much better communication between our local law enforcement agencies and the Regional 

Domestic Security Task Force. That is the mechanism that we use 

to investigate domestic security and terrorist events in Florida. Virtually all of our local law enforcement agencies in Florida now have 

at least a liaison, if not a member actively assigned, to one of these 

task forces. So we communicate regularly with them and whenever 

there is someone identified that is of interest to a local law enforcement officer, that is one of our primary responsibilities as we go 

18

out and investigate that issue and determine if that is someone we 

need to be more interested in and need to pay more attention to. 

Chairman CHAMBLISS. Ms. Malkin, I agree with you that information sharing is a critical aspect of not just immigration law, but 

particularly the war on terrorism, and I have been a strong advocate since my House days of trying to improve information sharing 

both vertically and horizontally with our law enforcement as well 

as other related entities. 

I am sure you are probably familiar with the Heritage report 

that has come out recently and has been critical of the legislation 

that is proposed and the utilization of the NCIC, saying it would 

be an overload on the NCIC if we put all of these names into there. 

Give me your reaction to that. You have had some experience with 

NCIC. What do you think about that? 

Ms. MALKIN. I don’t think it would be an overload. I mean, we 

live in the most technologically advanced, technologically sophisticated society in the world. I think putting the brightest minds to 

that task is not out of the realm of the impossible. 

I also think that the human toll with regard to failures to do this 

kind of information sharing has to be exposed. Here in Washington, 

we have been aware of these kind of failures ever since the days 

of the railway killer, Angel Resendez. Again, the IDENT database 

played a big part here because, I mean, if you are going to appropriate money to these sophisticated databases, there ought to be 

good information in them. From my interviews with local cops, and 

I have done a lot of interviews myself across the country, they have 

been clamoring for useful information in these databases. 

In the Malvo case, which I mentioned, I think is very relevant 

and germane because those fingerprints of Lee Malvo were in 

IDENT but they were not in the NCIC. Had they been in the 

NCIC, the delay that it took before Malvo’s prints were identified 

led to a couple of other people being slain who might otherwise be 

alive today because of that. 

There is so much information that still needs to be put in the 

databases, as well, including visa overstayers and the absconders, 

and it is going slowly, but it is going. Again, I don’t think it is an 

impossible task. 

Mr. KOBACH. Mr. Chairman, may I comment on that question, 

too? 

Chairman CHAMBLISS. Certainly. 

Mr. KOBACH. When I was at the Justice Department, I worked 

extensively with CJIS, which oversees the NCIC system. There are 

millions and millions of records in NCIC. Every single want and 

warrant that any State or local jurisdiction has and wants other jurisdictions to know about is tappable through NCIC, and it is not 

like our home PC where we are running out of RAM space. There 

is plenty of space there. We have already got 111,000 deported 

felon files in the NCIC and now we have got these 28,000 absconders and less than 100 NSEERS violators. The immigration portion 

is a drop in the bucket and we could make that drop ten times 

larger and there would be no problem of overloading the system. 

Ms. MALKIN. And if I just may make one final comment on that, 

of course, nobody ever talks about the problems with overload 

when it comes to registering, for example, law-abiding gun owners. 

19

If we can do that, if we have the capacity to do that, certainly we 

should have the capability of registering people who are breaking 

the law. 

Chairman CHAMBLISS. Professor Kobach, the Heritage report also 

criticized the proposed legislation on the basis that it would tend 

to put more of a burden upon local law enforcement officers and 

take away, as Professor Harris said, their ability to do their breadand-butter, day-to-day issues. I share that concern and I want to 

make sure that if we move forward with this, that we don’t take 

away from our local law enforcement officials their primary obligation of enforcing criminal laws within their local communities. 

What is your reaction to that report and this criticism? 

Mr. KOBACH. My reaction is that if we were trying to displace 

their primary mission of enforcing garden-variety criminal laws in 

their communities, that would be a problem. But that is not what 

the objective of this bill or similar bills are. The objective is to 

make it a secondary mission and an entirely voluntary mission. If 

they don’t want to do it, they still don’t have to. But there are a 

lot of police who are extremely frustrated that they can’t get more 

involved, and I have to disagree strongly with Professor Harris. 

As counsel to the Attorney General, I spoke on many, many occasions to police organizations around this country and I have continued my interviews since I have left the Justice Department because 

I am really frustrated by this. I think this is one of the biggest 

myths that has arisen on this issue. There is not one bit of statistical evidence out there that anyone has presented that I have ever 

heard of what percentage or what number of crimes are being reported by illegal aliens. I am glad Professor Harris is writing a 

book on this and I hope he is able to find that statistic because his 

book will be much stronger if he can give us some numbers. 

I think this is a myth. When I talk to police officers, and I try 

to say, do you have any reports, can you give me any numbers, how 

many criminal cases have been based upon reports from aliens, 

legal or illegal, in your communities, they laugh at me, especially 

with the illegal part. The point is, if you are an illegal alien in the 

United States, you avoid all contact with law enforcement, period. 

They don’t know the niceties of whether it is a State authority or 

a local authority or a Federal authority. The smart thing for you 

to do is to avoid all contact with law enforcement. 

So it is another myth that we are getting some massive community assistance in policing from the illegal aliens that have anything to fear. Now, the legal aliens, those alien communities, absolutely. They can come forward and they have nothing to fear. But 

I just think that there is not a lot of evidence here. 

I would also point out that the Major County Sheriffs Association, which is the organization of the sheriffs of the 100 largest 

counties in America, has gone on record saying they want greater 

cooperation and they are frustrated by those instances in which 

there isn’t adequate communication and cooperation, especially 

those instances where they have someone they would like to turn 

over to the INS and the INS says, let them go. 

And in my conversations with several police officers, this is one 

theme that came out quite often, too. The officer doesn’t want to 

be the guy that let the obviously illegal alien go who went on to 

20

rape someone or commit a murder or commit a robbery. He doesn’t 

want to be the guy who let him go. The police officers, they have 

a strong instinct of where there are certain apparent violations of 

the law, an individual may be involved in other more serious violations of the law. And when they cannot act upon, when they don’t 

have the tool in their pocket to enforce and make an arrest on immigration law, many of them have this fear that they are going to 

be the police officer that made the mistake and let someone go who 

goes on to do a much more serious crime. 

So I have a very different perspective on what police officers are 

saying and I guess I would just like to see the numbers, if there 

really is this massive amount of reporting by illegal aliens, because 

I don’t see it. 

Senator SESSIONS. Mr. Chairman, just for the record, the legislation I offered, the Homeland Security Act, does not require police 

to do anything. The CLEAR Act, which the Heritage Foundation 

evaluated as originally proposed in the House, did have mandates 

on local police. So I think I just want to suggest that the Heritage 

report was not focused on the voluntary proposal I have offered. 

Chairman CHAMBLISS. Good point. 

Professor Harris, I want to give you equal time. Do you have 

anything to add to your initial statement on that, relative to that? 

Mr. HARRIS. Yes, sir. Thank you, Mr. Chairman. Well, Mr. 

Kobach and I do have very different perspectives on this. I have 

seen active programs in place in cities such as Chicago, cities such 

as—you know, just all over the country, the objectives of which are 

to let the community as a whole, not just the legal residents but 

everybody, know that the police are there for them. This sometimes 

goes on quietly. This sometimes goes on with public relations campaigns. And it has been very successful in a number of places 

around the country. 

What police officers, from chiefs down to patrol officers, said to 

me unprompted many, many times is you never know where information is going to come from. There is no way to predict who will 

be the witnesses to a crime, whether that person will be legal or 

illegal. There is no way to predict who the victims will be of crime 

except that if you push people out of the circle of protection, if people feel that they cannot access the police, they can’t get to them, 

that they have something to fear from the police, they are actually 

more likely to become victims. That is a common occurrence. 

Unless we are very, very conscious of what we are doing here, 

we are going to send people farther away from the authorities. We 

are going to send them—make them more hesitant to come to the 

police. We are going to make them more fearful when they come 

to the police and that just isn’t in anybody’s interest, because like 

I said, they will stop communicating. 

I don’t think it is true at all that no illegal aliens are communicating with police. That is simply not true. Talk to police officers. 

You will see. And what they have to say is valuable. If you want 

those eyes and ears in the community, we have to open them to 

everybody. That is the long and short of it. 

Chairman CHAMBLISS. Thank you. Senator Kennedy? 

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

21

The provision which is included in S. 1906, to which Senator Sessions refers, says that after 2 years from enactment, any State or 

local that has a statute, policy, or practice that prohibits local officers from enforcing immigration laws or cooperating with the Federal immigration law shall not be federally reimbursed for incarceration of non-citizens and the State and local municipal reimbursements funds that would have gone to these will be reallocated to 

jurisdictions that are in compliance with the Act. 

So it would suggest—I don’t know whether, and I don’t want to 

spend a lot of time with this, that this is a little bit different than 

just being voluntary. If they are not going to have a problem, there 

is going to be a risk or it is going to raise serious doubts in the 

minds of the police chiefs in those areas, and I think that is the 

matter of concern. Maybe I don’t understand it correctly or I read 

it wrongly, but that is the basic kind of concern, whether there is 

going to be a requirement or something else. 

I think we have heard about interesting programs, particularly 

in Florida, on how this function can be done and be done correctly, 

and I think it is a rather compelling story that has been outlined 

for the Committee. 

Mr. Kobach, I was interested in your comments about the roles 

of police departments and the attitude of policemen. I have the letters from three departments in Kansas that oppose the legislation, 

Kansas City, Lenexa, and Overland Park. I understand these are 

cities that are in the district you hope to represent in the Congress. 

The Chief of Police in Kansas City writes that they have established good relationships with their minority communities, but if 

this bill becomes law, they say it will have a devastating effect on 

how we provide law enforcement. The Chief of Police in Lenexa 

writes that his city, like many other jurisdictions, is short on resources and manpower. This bill would magnify the problem, force 

them to make cuts in other areas. Oakland Park’s Chief of Police 

has a similar concern, writing that ‘‘this bill would be detrimental 

to all who live, work, and visit here,’’ and he says he wants all to 

know that the police are available to protect them, no matter who 

they are and where they come from. 

Why do the police departments in your own back yard believe the 

policy that you support will jeopardize their ability to keep your 

own community safe? 

Mr. KOBACH. I thank the Senator for providing that communication. The Police Chief from Overland Park, I used to work very 

closely with because I was a City Councilman at one time in that 

jurisdiction. 

I think it depends on how the question is asked. If you frame the 

question, we want you to take a part of your mission and devote 

to enforcing immigration law, you will always get the same answer 

from resource-conscious police chiefs. No. We don’t want an additional mission foist upon us. 

But what we are talking about here is a situation where the arrest has already been made. The traffic stop has been made. The 

police officer is now deciding what to do. The resources have been 

expended. The only additional resource is the cost of the phone call 

to the INS LESC, the Law Enforcement Support Center. 

22

So it is not as if we are asking them to go out on a new mission 

and devote more investigatory resources. So I think, like a lot of 

polling, it depends on how you ask the question and I think you 

get very different answers. 

The other point I would mention is to your point about how, well, 

it is not voluntary in this current bill. I am not sure if the Committee is aware, but actually under U.S. law already, it is impermissible for a city to have in place a policy that prevents sharing 

information with the Federal Government. This is 8 U.S.C. 1644. 

Notwithstanding any other provision of Federal, State, or local law, 

no State or local government entity may prohibit or in any way restrict from sending or receiving to the Immigration and Naturalization Service information regarding the immigration status, lawful 

or unlawful, of an alien in the United States. 

As you know, many municipalities are simply violating Federal 

law flagrantly by creating so-called sanctuary policies, and as I understand it, the provision in this bill, in S. 1906, would simply add 

some teeth to a Federal law that has been utterly ignored by some 

municipalities and say, look, if you are going to keep ignoring Federal law and put policies in place to block your police officers from 

voluntarily calling the feds, then look, you are going to lose some 

SCAAP funds, and I think that is a completely reasonable— 

Senator KENNEDY. You are not here just to advocate the repeal 

of the law. As I understand your statement, you are saying that if 

you are not going to do it and to move ahead in enforcement, they 

are going to lose local funds. 

Mr. KOBACH. As I understand it, the provision in S. 1906 will say 

if you have something on your books in your city ordinances that 

says you are not going to comply with this Federal requirement, 

then you are going to lose SCAAP funds, and I don’t think that is 

forcing them to undertake a mission and expend resources. 

Senator KENNEDY. It says that it prohibits local enforcers from 

enforcing immigration laws or cooperating with Federal immigration law. There is something on that. It shall not be federally reimbursed. 

Let me ask, we had these three prominent conservatives, Grover 

Norquist, David Keane, Bob Barr, who also wrote these. It is amazing the company I am keeping these days. 

[Laughter.] 

Senator KENNEDY. They wrote— 

Chairman CHAMBLISS. And that is in the record, too, Senator. 

Senator KENNEDY. That is in the record. They wrote that the bill 

will set a dangerous precedent. They talk about an unmanageable 

burden on local law enforcement, and the critics say the mechanism already exists to foster Federal law enforcement cooperation 

when appropriate. 

What is your own background in law enforcement? 

Mr. KOBACH. Serving as counsel to the Attorney General of the 

United States. 

Senator KENNEDY. But you haven’t—served as a law enforcement 

officer or police. 

Mr. KOBACH. Also as a member of the Public Safety Committee 

of a large municipality which oversees— 

23

Senator KENNEDY. Your total law enforcement is as a counsel, is 

that correct? 

Mr. KOBACH. Yes. I haven’t carried a gun in law enforcement 

duty, if that is what you are asking. 

Senator KENNEDY. Well, no. You don’t have to necessarily to be 

involved in other forms of law enforcement. I am just trying to get 

some sense of your own background in law enforcement. 

Mr. KOBACH. Sure. Lots of contact, oversight, not walking the 

street as you might be implying. 

But on the unmanageable burden point, if I might jump in there, 

again, I think the—in many ways, the burden occurs right now 

without this bill because some municipalities, some local police will 

go ahead and try to enforce right now and they will go ahead and 

make a detention in the hopes that the Federal Government will 

act. And what is happening now in some cases is that the Federal 

Government either says, well, let them go and doesn’t reimburse 

them for that detention expense, or does ultimately take them but 

doesn’t reimburse adequately with adequate SCAAP funds. So I 

think the burden occurs now when you have local law enforcement 

in good faith trying to enforce Federal law and not getting adequate assistance. 

Senator KENNEDY. I am impressed by the Florida and Alabama 

programs. I don’t want to take a lot of time of the Committee on 

this, because I have just one final question. It seems that the police 

and law enforcement officers have a different opinion from Mr. 

Harris. 

I have the statements from Paul Evans, who is from my own 

State of Massachusetts—I will include these—from the California 

Police Chiefs, from President Rick Terbach. It is the strong opinion 

that California police, in order for local and State law enforcement 

to be effective partners, not be placed in the role of detaining or 

arresting individuals solely on the charge of immigration. 

From Chicago, Police Department Tom Needham, former General 

Counsel and Chief of Staff. ‘‘It would be virtually impossible to do 

it effectively if witnesses and victims, no matter what their residency status, had some reluctance to come forward for fear of being 

deported.’’ 

Los Angeles County Sheriff’s Department, Sheriff Leroy Baca, ‘‘I 

am responsible for the safety of the largest immigrant community. 

My department prides itself in having a cooperative, open relationship. This bill would undermine that relationship—talking about 

the CLEAR Act, in fairness.’’ 

Miami Police Department, New York Police Department, Chief 

Michael Collins, Philadelphia Police Department, Andy Graber. ‘‘If 

they are otherwise law abiding, we will not tell the Federal Government of their status. We are afraid immigrants would not report 

crimes.’’ Seattle Police Chief, and the list goes on. 

It may be that they just don’t want it, but we have seen the examples both in Florida and Alabama, evidently, where they are getting the training, they are getting the support, they are getting the 

information where they are willing to take this on and there has 

been a positive response to it. Again, I think it underlines it. 

Let me just wind up here, because the hour is going on. Mr. 

Picolo, I understand the issue here is whether the State and local 

24

police are equipped to take on the larger new burden of immigration enforcement without the training, supervision, and support 

you receive from the Federal Government under the MOU. In talking about the MOU, Governor Jeb Bush said, ‘‘I would have a lot 

of trepidation if every police officer was going to be a sworn INS 

officer and our duties end up with local law enforcement becoming 

the immigration cops of the country.’’ This is the Governor of Florida that is saying that. 

The statement clearly argues against broad legislation to expand 

the authority, certainly without the kind of careful attention that 

they have given in the State of Florida in the development of the 

training and the programs which developed, I guess, under the 

State. Your comment just finally? 

Mr. PICOLO. That is the official position of the State. The Governor does support the limited INS authority, at least at this point 

with the legislation that exists. He does not support the broader 

authority. 

Mr. HARRIS. Senator, may I? 

Senator KENNEDY. Yes, just briefly and then my time—I guess 

I do have another minute. Go ahead. 

Mr. HARRIS. I just wanted to say that your comments are very 

important. You know, the idea that the policy comes out of some 

kind of misguided political correctness, I think, is really insulting 

to police officers. 

What this is, police officers are practical people. They are pragmatic. They want to know what works and they know what works. 

They have been on those streets. They have been in those communities. They know that they have to work with the people there no 

matter who they are. That is why they don’t want to be involved 

in this. That is why they want it done, if at all, with the Florida 

model. 

Senator KENNEDY. Thank you very much, Mr. Chairman. My 

time is up. 

Chairman CHAMBLISS. Senator Sessions? 

Senator SESSIONS. Thank you, Mr. Chairman. I will just offer for 

the record a list here of about 50 law enforcement groups that support the CLEAR Act. This is the one that has the mandates in it. 

The National Sheriffs Association, Law Enforcement Alliance of 

America, the Illinois Association of Chiefs of Police, the Iowa Association of Chiefs of Police Officers, Connecticut Association of 

Women Police, the Southern States Benevolent Police Association, 

and it goes on and on, agency after agency, that support the 

CLEAR Act, the one that had the mandate in it. 

I would also offer a letter from 16 experienced immigration law 

officers, a very thoughtful letter. I think it is important to make 

it a part of the record. They say, ‘‘We strongly support S. 1906. We 

urge the Senators to cosponsor the bill. Failure to act on S. 1906 

only helps law breakers, forces both Federal and all State and local 

law enforcement officers to fight with one arm behind our backs 

and leaves a gaping hole in the defense of this Nation and the enforcement of our laws.’’ 

The National Sheriff’s Association said, quote, ‘‘Passage of this 

legislation will settle the question of jurisdiction by codifying and 

25

affirming local law enforcement’s ability, when properly trained, to 

enforce immigration law.’’ 

The National Fraternal Order of Police says the FOP strongly 

supports the efforts of Senator Sessions to enhance the security of 

our Nation and will work closely with him to craft legislation to 

that end. 

And there are a lot more. The police officers I know, and I know 

a lot of them personally. They are friends of mine. I was Attorney 

General and United States Attorney for nearly 17 years. Those are 

my best friends, and they are not telling me—I will tell you, I think 

Mr. Kobach is correct. If you say, we are going to mandate you to 

do something, they are going to say no, and they should. You mandate me to do something, I want to be paid for every bit of it and 

I am still not sure I want to do it, and I don’t blame them. 

But to tell them that we are going to allow them the option, 

when they are out and made an arrest on the highway or somebody 

is wrecked or been DUI that they can’t even have a way to participate, I think is quite different, and that is why you have the support there. 

I think that the concern has floated with the CLEAR Act that 

had a mandate in it, as originally proposed, that did do some of 

that. It probably would not be successful. 

Let me ask you, Mr. Picolo, this, and I think it is important to 

get straight. A memorandum of understanding in Florida, that was 

pretty close to a cross-designation, what we would call a deputization, was it not? 

Mr. PICOLO. Absolutely. That is exactly what it is. 

Senator SESSIONS. So your law officers that went through that 

training and participated in that MOU had all the powers of a Federal INS officer, or at least those that were delegated to them? 

Mr. PICOLO. Exactly, though it did specifically focus on domestic 

security and counterterrorism investigations solely. 

Senator SESSIONS. Yours was more narrow than the Alabama 

MOU. 

Mr. PICOLO. That is correct. 

Senator SESSIONS. Ms. Malkin makes the point, I think it is of 

some value, that if a police officer observes a criminal in the act 

of committing a Federal crime, they can act, as Mr. Kobach cited 

the authority, is not that correct as you understand it? 

Mr. PICOLO. Yes, sir. 

Senator SESSIONS. So to me, you know more about grassroots, I 

know you know that, it seems to me there are two different things. 

One is you can have a memorandum of understanding and a deputization as I have done on drug task forces and you are probably 

familiar with. You designate a local sheriff officer, cross-designate 

them with Federal authority and vice-versa. That is a big step. But 

it is different, is it not, if a police officer who has not been deputized is out on the interstate and gets a hit on an illegal alien 

through NCIC or some other factor? They don’t have to be deputized to make an arrest there, do they? 

Mr. PICOLO. No, sir, not to my knowledge. 

Senator SESSIONS. Mr. Kobach, you have researched that. And by 

the way, thank you for your extraordinary testimony and the 

amount of legal research you put into it. I think it was a good hisVerDate 0ct 09 2002 14:52 Aug 19, 2004 Jkt 095309 PO 00000 Frm 00029 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\95323.TXT SJUD4 PsN: CMORC
26

tory and good background for all of us in the fundamentals of immigration law. Did I say anything incorrect? 

Mr. KOBACH. You stated it correctly. If the alien’s name and date 

of birth are on NCIC, then by virtue of that listing, there exists 

probable cause to believe that an immigration violation has occurred and so the officer is completely within the law in making 

an arrest. 

Senator SESSIONS. Since there is no way to prosecute in State 

court a Federal immigration law, the officer has to turn him over 

to somebody who can, is that correct? 

Mr. KOBACH. Yes. We don’t generally ask State law enforcement 

to play any role in the prosecution of immigration violations or in 

the processing of the administrative violations, if we are not actually prosecuting the time. 

Senator SESSIONS. I think that is the way the system, what we 

are talking about, creating a system in which a local law officer 

who stops a Mohammed Atta is not basically told to let them go, 

don’t even bother to check. That is what is happening today. Then 

you have to have a system to get them turned over and transmitted 

to Federal. You have created a group of State officers that will help 

transport them to the Federal officials, and Alabama has done that, 

too, which is helpful. But I just don’t think a major memorandum 

of understanding is necessary for an average law officer to do his 

duty out on the street. 

Mr. Kobach, you mentioned that we have gotten 28,000 names 

out of the 450,000 absconders put in NCIC. It is breathtaking to 

me it takes this kind of time. It really should not, in my view. But 

of that number, once they have been put in there, 8,000 have already been picked up. 

Mr. KOBACH. Yes. 

Senator SESSIONS. I think that is a dramatic thing. 

Mr. Picolo, isn’t it true that today, if somebody skips bail, is not 

arrestable on an arrest warrant, and they go out, the police officer 

may make a search at their house, but if they have moved and absconded from the territory, about all they do is put it in the NCIC 

on the expectation that, sooner or later, this guy is going to get 

picked up again and there will be a hit and he can be brought back 

to that jurisdiction. 

Mr. PICOLO. That is exactly what happens, yes, sir. 

Senator SESSIONS. And NCIC is the most historic change in law 

enforcement, I guess in history almost, would you agree? 

Mr. PICOLO. Yes, sir. I have been in the business for 29 years 

now and it has existed my entire career. It has always been a tool 

that I have used. 

Senator SESSIONS. It is almost breathtaking to think that we are 

not using it with regard to non-citizen illegal aliens, wouldn’t you 

agree with that? 

Mr. PICOLO. Absolutely, and again, that is one of the core frustrations that led us to the 287(g) agreement to begin with. 

Senator SESSIONS. Mr. Harris, do you see anything wrong with 

putting in the NCIC the names and identifications of people who 

have been arrested, ordered deported, who have absconded, who 

have committed crimes and been ordered deported? Do you have 

any objection to that? 

27

Mr. HARRIS. Senator, I keep thinking of that incident six or so 

months after the terrible events after 9/11 in which two of the hijackers who were dead were contacted by the INS and given permission to stay, or something like that. 

The problem is not with using NCIC. It is with the records that 

we want to put in them. If the records themselves are inaccurate, 

incomplete, if they are not kept up to date, and I have to say the 

INS has been absolutely notorious for this, everybody agrees, we 

will have a system full of incomplete, out of date stuff that will not 

actually be useful. We will have to comb through the junk to find 

the gems. And in any system of handling information, it is just as 

important what you don’t put in as what you do put in. That would 

be my hesitation. If I knew that what the INS had to offer to put 

in was really up to date and fixed, that, I think, would present a 

whole different set of questions. 

Senator SESSIONS. Well, the National Crime Information Center 

is a confidential system that is available only for law enforcement. 

It is an abuse to access it for any other reason, but they do it every 

day for every kind of crime. You get a DUI and you don’t show up 

for court— 

Mr. HARRIS. Yes, sir. 

Senator SESSIONS. —your name is in there. 

Mr. HARRIS. Yes, sir. 

Senator SESSIONS. Perfection is not guaranteed in this life. 

Mr. HARRIS. No. Nobody looks for perfection. 

Senator SESSIONS. And I can’t imagine why it would be more difficult to enter in an absconder from an immigration hearing than 

it would be to enter a person who didn’t show up for his court date 

for a DUI. Mr. Kobach? 

Mr. KOBACH. Yes, if I can jump in there. Part of the reason why 

the entering of data is going so slowly into NCIC regarding absconders is because right now, the ICE is scrubbing the records, as 

they put it, looking to comb everyone very carefully to se if the individual has since left the country and there is some record of him 

leaving, or if, in very, very few cases—this would be less than one 

in 100—that the individual has gotten a status adjustment and is 

now here legally. 

In the case of someone who has left, there is no harm done by 

putting that record in. It is never going to be triggered. And in the 

case of someone, the very, very minuscule number of cases where 

someone has actually gotten a status adjustment, then you might 

have an arrest which the moment they make a call to the LASC, 

the LASC can say, well, actually, they got a status adjustment. You 

can let them go. So they might be detained for a few minutes extra. 

But the cost is minimal, so I share your frustration with the slowness of the adding of data. 

I would also elaborate on your point earlier about Mohammed 

Atta and when he was in the custody of that officer in Broward 

County, Florida. If we had this bill in place, I think things would 

have been different. This bill, in combination with what the ICE 

has been doing with the NSEERS system, where individuals coming from particular countries or holding certain profiles overstay 

their visas, that also dumps those names into NCIC right now and 

28

it is unclear whether Mohammed Atta would have triggered that 

or not. 

If you add the bill S. 1906, and especially the provision requiring 

known overstays to go into NCIC, that officer would have had a hit 

when he typed in Mohammed Atta’s name and date of birth in his 

squad car computer. That might have caused the plot to unravel. 

Who knows. Maybe he was just one of the 19 and maybe it would 

have gone on without him. 

But the point is, if we could go back in time and do everything 

we could to try to prevent that from happening, I would certainly 

think that we would try to do this, get as much information to 

State and local police through NCIC as possible, and I don’t see 

any strong legal or policy objection to doing so. 

Senator SESSIONS. Thank you, Mr. Chairman. 

Chairman CHAMBLISS. Senator Cornyn? 

Senator CORNYN. Thank you, Mr. Chairman. Mr. Chairman, it 

seems to me that we have come to the point as a result of the various hearings that you have chaired in the immigration reform debate dealing with various aspects of it where I think it has become 

increasingly clear that we have two choices to start with. One is 

to do something and one is to do nothing. Clearly, I am on the do 

something side and I think it is important as a result of this hearing and others that you have had to determine exactly what that 

something is. 

But I don’t want any of us to be under the illusion that doing 

nothing is free. Obviously, there are a lot of costs associated with 

it. The Federal Government has done a lousy job across the board 

and particularly in foisting the costs of illegal immigration onto the 

State and local government. Last year, the Federal Government 

provided $250 million in SCAAP funding for criminal aliens and 

that is the State Criminal Alien Assistance Program, which is supposed to reimburse the cost of detention and law enforcement related to these aliens, but that is about a third of the documented 

costs to State and local governments. Texas got $20 million, and I 

should tell you, that is a fraction of the costs that have been incurred by State and local government in my State. 

You add on to there unanticipated costs, like health care costs of 

people when they are in detention, which is uncompensated and 

performed by the local taxpayer and the State. I had to get that 

off my chest. 

But with that, I want to ask Professor Harris and perhaps others 

of you about community policing and reimbursement for costs, payment of costs and training, which I think are all legitimate issues 

that we need to figure some way to deal with. 

One of the things that I read, and Professor Harris, maybe we 

can start with you, is while community policing is important, and 

I would grant you that, I agree with you on that, that a lot of the 

violence and crime being committed is simply unreported at all by 

people who are reluctant to call law enforcement authorities, 

whether they be State, Federal, or otherwise. And so I know it is 

hard for us to get a handle on how much is occurring because it 

is not being reported. It is hard to quantify what you don’t know 

or what is not being reported. 

29

But a lot of the crime, it is my suspicion—I think this is probably 

true—is being committed by members of that community against 

each other, and so there is sort of a double-whammy there. So rather than only looking at the trust, which is important, between law 

enforcement and the community, I am wondering whether it is the 

community itself, let us say in this instance illegal immigrants, 

who are suffering the most, or how you would put that in the balance of deciding how we deal with this problem. 

Mr. HARRIS. Yes, Senator. It is clearly the community itself that 

suffers the most. You are quite correct that many crimes do go unreported. A surprising number of crimes go unreported. It always 

surprises me when I look at those statistics. 

The community itself suffers the most when predators roam the 

streets, and they generally roam in their own communities. That 

is why when you have immigrant communities, it is doubly difficult 

and doubly important to make the efforts to have connections with 

people so that they will work with the police. It is not the natural 

inclination of many in immigrant communities to work with police 

because many of them come from countries in which police are corrupt, in which it can’t mean anything good when the police officer 

comes to your door or stops your car. And building that kind of 

trust so that immigrants in general will come to see that working 

with the police is very much in their interest is a very difficult 

task. 

I think it only becomes more difficult if we add other reasons to 

fear this police. This is why, for instance, police in your own State, 

in Austin, Texas, have made very concerted and strong efforts to 

connect with their immigrant communities to impress upon them 

that they want people to come forward and they want people to do 

things to prevent the crime before it happens. 

They want to have drug dealing reported to them. They want to 

have every robbery reported to them. They don’t want these cases 

to fall through the cracks and they will do what they have to do, 

the police tell the community, to make them safe, because every 

time they don’t make them safe, every time a crime is not reported, 

adding any additional reasons not to report crimes simply makes 

it more difficult for the police to do. It adds more victims within 

that community, outside that community. Making the streets safe 

is always the top priority for local police, and community policing 

has, frankly, been popular because it works that way, because it 

actually shows real results over time. It gets police where they 

want to be. It brings crime down in the course of connecting communities with their officers. 

Senator CORNYN. I will go to Mr. Kobach in just a second to respond to that same question, but let me just say, Professor Harris, 

since you mentioned Austin, it always concerned me that when we 

call ourselves a nation of laws, when communities like Austin and 

others had day employment facilities where obvious immigrants, 

and who knows how many of them are here legally versus illegally, 

are waiting to be hired for day labor and what kind of mixed message we are sending to the community as a whole. We are a nation 

of laws, but we only respect some of those laws. 

Mr. HARRIS. That is very true. 

Senator CORNYN. How do you address that? 

30

Mr. HARRIS. It is a very, very good and penetrating question, 

Senator, because what it points out is that the immigration problem—and we have a huge immigration problem in this country—

the immigration problem is a problem of economics as much as 

anything else. The reason that people go and hire day laborers, 

some legal and some not, is because, frankly, it pays. They find it 

a good thing. It is good for their business. The people want to work. 

They might work for less. 

And until we address some of those basic questions of economics, 

I don’t have any wish to make our discussion more complicated, but 

simply relying on law enforcement will only take us a certain distance. It is like many other problems. If you have only one tool, a 

hammer, everything will look like a nail. Unless we go beyond 

thinking of this just in law enforcement terms, we will not make 

any kind of progress. 

It is not a good thing for society when laws are not honored. But 

what we need to do is we need to think how is the best way to 

bring this whole system in conformity with law. 

Senator CORNYN. Mr. Kobach? 

Mr. KOBACH. Yes, Senator Cornyn. Thank you. I would have two 

responses. One, with respect to community policing, those communities that have gone the farthest in the direction of accommodating or taking a hands-off policy toward illegal aliens are, of 

course, those communities that have formally adopted the so-called 

sanctuary policies, where they formally prohibit their police officers 

from communicating with the Federal Government or formally prohibit their police officers from asking the questions. 

To take Professor Harris’s words, it is the community that suffers, I would say exactly. There has been a lot of documentation in 

Los Angeles, which has had a sanctuary policy for a long time. 

Right now, 95 percent of all outstanding warrants for homicides in 

Los Angeles are for illegal aliens, 95 percent. What it does is it creates a haven where those aliens who are involved in other illegal 

activity know that they won’t be bothered. 

There are numerous reports from police officers who say, look, we 

know that these gang members have left. They have been deported 

already. We see them back. We know that they are illegal. We 

aren’t allowed to make any arrest on that basis. We have to wait 

until we have evidence of some other crime. Now, they know that 

there is an immigration violation occurring, a criminal immigration 

violation, by the way, to reenter after deportation, occurring right 

in front of them, a continuing violation, but they can’t do anything 

about it. 

Consequently, the gangs know this and they know that they are 

going to be able to reenter with impunity. And another statistic 

that I just found shocking is that 60 percent of L.A.’s 2,000-member 

18th Street Gang, which is a particularly violent drug trafficking 

gang, 60 percent is composed of illegal aliens, it is estimated. The 

aliens see this, and it is indeed the community that suffers when 

the police’s hands are tied. 

And that leads me to my second point, and that is, really, if communities follow these sanctuary policies or if the Federal Government doesn’t act to clarify and say, look, you can act and we want 

to encourage your city councils to allow you to act, then you have 

31

a tool taken out of the tool box. You look at some of the cases that 

the Tenth Circuit and Ninth Circuit have adjudicated. Usually, the 

case arises in a situation like this. 

The police is watching the group of aliens because he is trying 

to make a drug bust. He is trying to pursue some other investigation and he doesn’t yet have enough information to make an arrest 

based on that, but he is getting close. But he then comes across information that the alien is here illegally. Well, sometimes it makes 

more sense in law enforcement to build the quickest case you can, 

to use that tool, which is an effective and fast tool and say, well, 

we know we have an immigration violation here. We can get the 

person out. We can stop this drug ring on that basis, and that is 

exactly the kind of situation that led to those cases in the Tenth 

Circuit. 

It is kind of like Al Capone. It would have been harder to build 

the case on the racketeering charges, but tax evasion was easy. 

Well, similarly, it is sometimes hard to build the case on drug trafficking, but immigration is easy. We are taking that tool away from 

police officers and we can make our communities safer if our police 

officers have more tools. 

I would just like to beg the Committee’s pardon. I am going to 

have to depart early, and I thank you for the opportunity to testify. 

Senator CORNYN. My time is up and so am I. Thank you. 

Chairman CHAMBLISS. Mr. Picolo, there was a recent AP story 

where it was reported that sheriffs on the Florida Domestic Security Task Force oppose issuing driver’s licenses to illegal aliens. 

Can you shed any light on that, particularly with reference to the 

security concerns that may be present in that thought process? 

Mr. PICOLO. Yes, sir. The sheriff that has raised the highest concern, Sheriff Don Hunter, is in my region and was just in Tallahassee Monday on it. The bill was introduced approximately three 

weeks ago and we are nearing the end of our legislative session. 

The primary concern was regarding the documentation requirements to secure such a license. 

It is, quite frankly—we quite frankly have very little confidence 

in the source documents that many of these aliens possess and the 

authenticity of the source documents that many of these aliens possess. Some of the other source documents, such as matricular consular, we have very little confidence that those types of source documents would be accurate reflections of who we are actually 

issuing a driver’s license to, and until those kinds of concerns can 

be addressed, I don’t think the sheriffs in Florida are going to support this legislation. 

Chairman CHAMBLISS. Thank you. Senator Sessions, anything 

else? 

Senator SESSIONS. I wanted to ask Ms. Malkin about the Malvo 

situation. I know that that fingerprint in Montgomery, Alabama, 

played a role in his apprehension, John Mohammed. But you mentioned that the print went into the IDENT system but not to NCIC. 

Would you explain for those who are not sophisticated in that what 

that means and why that was important? 

Ms. MALKIN. The IDENT system was used by the legacy INS, 

and I believe ICE now, to fingerprint and photograph suspected illegal aliens and Malvo’s two index fingers were recorded into the 

32

system and those were the only records on file of his prints. So 

when the local authorities in Alabama were trying to identify the 

fingerprint at the Alabama liquor store scene where apparently 

Malvo and Mohammed had committed a robbery, they couldn’t find 

anything, and that is because they were looking in the NCIC database. I think that case just underscored the need to merge those 

two databases, and as Professor Kobach, I think, mentioned, that 

effort is going on now. 

Senator SESSIONS. And one more question. You mentioned the 

San Jose situation. I appreciate your writing. It is superb, and you 

articulate this well. How would you articulate the mentality of the 

average police officer in the San Jose Police Department with regard to their conflicted responsibilities of trying to enforce the law 

and then being told what they can’t do? What did you learn from 

that? 

Ms. MALKIN. Absolute frustration. I mean, it was extraordinary 

that a spokesperson of a police department would be as candid as 

Ms. Unger was with me. I think it is a little bit too convenient to 

dismiss and pooh-pooh the politically correct culture and the effect 

that it has on morale of these police departments, particularly in 

sanctuary cities like Los Angeles, New York, San Jose, Portland, 

Seattle. 

I have interviewed dozens of police officers who want to cooperate, who would like not to have that sort of Sword of Damocles 

hanging over their head, that if they were to proactively contact 

Federal Homeland Security Department officials, that they might 

suffer negative consequences, and these are people who work day 

in and day out with the victims of massive illegal immigration and 

law breaking, and as has been said, in many cases, the victims of 

those crimes are illegal aliens themselves. 

Now, there is no empirical evidence that knowing that they could 

be turned in will lead them not to cooperate with law enforcement. 

I mean, I just cited the Malvo case. This is not a sanctuary city 

and certainly Malvo’s mother knew that there was a risk that they 

could be turned in and they suffered the consequences of that risk. 

I personally and candidly believe that it is not a bad thing for 

law breakers, and immigration law breakers in particular, to feel 

some sort of fear that they might suffer the consequences of their 

law breaking. I mean, this is the problem. This is the problem with 

before September 11, and unfortunately afterwards, is that we 

think that immigration law breakers should be exempt. And I 

think getting a handle on it and starting to get a handle on our 

immigration chaos means starting to enforce the law uniformly and 

consistently and without apology. 

Senator SESSIONS. One brief question. With regard to the part of 

the legislation I have offered that says you could lose your SCAAP 

funding, which isn’t a lot of money, but lose that funding if you 

have an overt policy against enforcing or coordinating with INS, 

what about these sanctuary cities? I mean, most people in America 

don’t know there is a sanctuary city. Can you tell us what the cities 

you have mentioned and what it means to be a sanctuary city? 

Ms. MALKIN. Well, basically, you are creating safe havens, not 

just for your garden-variety otherwise law abiding illegal aliens but 

33

for terrorists and criminal aliens, as well, and we saw that in New 

York City. 

Senator SESSIONS. The cities don’t allow enforcement, or what is 

it that makes it— 

Ms. MALKIN. I talked about the San Jose Police Department and 

its policy, and that is not just in police departments but also in cities, as well. Professor Kobach had mentioned Los Angeles, where 

Special Order 40 has been in place for a long time. A lot of the city 

employees that I have talked to basically think of it as a gang 

order, that they cannot proactively contact Federal immigration authorities to let them know if they suspect someone of being an illegal alien. 

Senator SESSIONS. Thank you. Thank you, Mr. Chairman. 

Chairman CHAMBLISS. Thank you, and to each of our witnesses, 

thank you very much for being here. This has been very enlightening, been very informative. You folks are the experts. That is 

why we have got you here. We value your opinions very highly, and 

as we move through this process, we very likely will be back in 

touch with you formally or informally to continue a dialogue. 

The record will remain open for 7 days for any additional statements or materials. This hearing is now adjourned. 

[Whereupon, at 4:52 p.m., the Subcommittee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

[Additional material is being retained in the Committee files.]

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