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DEPARTMENT OF HOMELAND SECURITY 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

MARCH 5, 2008 

Serial No. 110–114 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

BETTY SUTTON, Ohio 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

PERRY APELBAUM, Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

(III) 

C O N T E N T S 

MARCH 5, 2008 

Page 

OPENING STATEMENTS 

The Honorable Zoe Lofgren, a Representative in Congress from the State 

of California, and acting Chairperson, Committee on the Judiciary ............... 1 

The Honorable Lamar Smith, a Representative in Congress from the State 

of Texas, and Ranking Member, Committee on the Judiciary ......................... 2 

WITNESSES 

The Honorable Michael Chertoff, Secretary, U.S. Department of Homeland 

Security 

Oral Testimony ..................................................................................................... 3 

Prepared Statement ............................................................................................. 8 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Sheila Jackson Lee, a Representative 

in Congress from the State of Texas, and Member, Committee on the 

Judiciary ............................................................................................................... 69 

Prepared Statement of the American Civil Liberties Union (ACLU) .................. 72 

Responses to Post-Hearing Questions received from the Honorable Michael 

Chertoff, Secretary, U.S. Department of Homeland Security .......................... 80 

(1) 

DEPARTMENT OF HOMELAND SECURITY 

WEDNESDAY, MARCH 5, 2008 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 9:43 a.m., in Room 

2141, Rayburn House Office Building, the Honorable Zoe Lofgren 

(acting Chairperson of the Committee) presiding. 

Present: Representatives Nadler, Scott, Watt, Lofgren, Jackson 

Lee, Waters, Delahunt, Sa ́nchez, Cohen, Johnson, Sutton, Baldwin, 

Schiff, Smith, Sensenbrenner, Coble, Goodlatte, Cannon, Issa, 

Pence, King, Feeney, Franks, and Gohmert. 

Staff present: Ur Mendoza Jaddou, Majority Counsel; and Crystal Jezierski, Minority Counsel. 

Ms. LOFGREN. Good morning. The Committee will come to order. 

I would like to welcome everyone. Without objection, the Chair is 

authorized to declare a recess of the Committee at any time. 

We are pleased today to welcome the Secretary of Homeland Security, Mr. Michael Chertoff. We are holding this hearing pursuant 

to our oversight responsibilities regarding certain offices and programs at the Department of Homeland Security that fall within the 

jurisdiction of the Judiciary Committee. The Homeland Security 

Committee has jurisdiction over the organization and administration of this Department generally over all homeland security and 

a number of specified security issues. 

But our hearing will focus not on the Department and its mission 

broadly, but instead more narrowly on matters relating to criminal 

law enforcement functions such as at the Secret Service and the 

Air Marshals, to name two; immigration policy and non-border enforcement; privacy, civil rights and civil liberties protections as 

they pertain to the Department’s responsibilities. That focus should 

guide our discussion and our questions this morning. 

I believe this is a particularly important time for us to be conducting this hearing, and I hope we will explore a variety of topics. 

I will touch on just a couple now related to immigration policy and 

enforcement. 

At a hearing last month in the Immigration Subcommittee, we 

heard a number of reports of raids and removals and apparent neglect of basic due process and fourth amendment protections. One 

was a 15-year-old girl in Georgia who walked out of her bedroom 

to find armed ICE agents had entered her home without permission while her mother was out. If they had a warrant, they never 

showed it to her. She was a U.S.-born citizen, as was her mother. 

2 

There are also reports of ICE failing to provide basic medical 

care to immigration detainees, of detainees with HIV or other serious chronic conditions deprived of lifesaving medications or needed 

diagnostic procedures during extended periods of detention. In one 

instance, a doctor’s request for a biopsy of a detainee was repeatedly denied over a period of 10 months. By the time the individual 

was finally permitted to get the biopsy, the cancer had spread and 

wasn’t curable. Meanwhile, there is a growing backlog of actualization cases, despite hikes in fees with the promise to speed the process up. 

I expect our Members to have a variety of questions for you, Mr. 

Secretary, and I appreciate your being with us. There is a strong 

interest here in your Department’s work and in helping ensure that 

in the areas of our jurisdiction, you have the resources and the 

commitment to do that work. 

I would now recognize our Ranking Member, Lamar Smith of 

Texas, for an opening statement. 

Mr. SMITH. Thank you, Madam Chairman. I join you in welcoming Mr. Secretary to I think his first appearance before the 

House Judiciary Committee. 

Since its creation, the Department of Homeland Security has 

made significant strides in revitalizing the immigration enforcement efforts that had been left to languish under both Democratic 

and Republican administrations. I am especially appreciative of the 

renewed attention to worksite enforcement, alien fugitive apprehension and criminal alien removal. However, we cannot forget all 

the work that is left to do. There are still 7 million illegal immigrants working in the United States, and DHS estimates that there 

are 605,000 foreign-born aliens incarcerated in state and local facilities, half of whom are illegal immigrants. 

Given the current state of the economy, securing American jobs 

is more important now than ever. DHS’s continued worksite enforcement efforts are critical to promoting the American economy 

and protecting the American workers. Companies which had long 

relied on illegal immigrant labor are for the first time in years raising wages, improving working conditions, and recruiting more 

American workers. 

To enforce immigration laws and keep America safe, Congress 

must grant DHS additional tools. For example, DHS needs the 

basic pilot program, or E-Verify, to be reauthorized and made mandatory so that DHS can finally turn off the job magnet for illegal 

immigration. And DHS needs to have the ability to detain dangerous criminal aliens and keep them off our streets. 

However, DHS’s first goal must be to secure the border. So I am 

disappointed by the Administration’s failure to seek funding for 

anywhere near the number of immigration detention beds and interior enforcement agents that Congress called for in the Intelligence 

Reform and Terrorism Prevention Act of 2004. The Administration 

may have ended catch-and-release for non-Mexicans along the 

southern border, but catch-and-release is alive and well in the interior of the U.S. 

Most illegal aliens picked up in the interior of the country are 

released the next day due to lack of detention space. This and other 

forms of catch-and-release in the interior will only be ended by draVerDate Aug 31 2005 14:32 Sep 16, 2008 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6601 H:\WORK\FULL\030508\41082.000 HJUD1 PsN: 41082
3 

matic increase in immigration detention beds and interior enforcement agents. 

I regret that the Administration has not implemented an exit 

control system for immigrants more than a decade after Congress 

called for its creation. I am disappointed by the Administration’s 

unwillingness to cut off visas to countries that do not accept back 

their citizens, over 100,000 who have been ordered deported from 

the U.S. I am also disappointed by the Administration’s failure to 

require the Social Security Administration and the Internal Revenue Service to share information with DHS that could make 

DHS’s job of immigration enforcement so much easier. Mr. Secretary, I think you may share my disappointment in that area. 

Finally, I am disappointed that only 167 miles of physical fencing 

are being built along the southern border. I am disappointed that 

the Administration is not seeking to build more double-fencing. 

I look forward to the Administration addressing these and other 

concerns, and I look forward to hearing from Mr. Chertoff today on 

ways to continue to make immigration law enforcement more effective. 

Madam Chairman, America has the most generous immigration 

system in the world. We admit over one million legal immigrants 

every year. So I don’t think it is too much to ask that our laws, 

our borders and our sovereignty be respected by others. Before I 

yield back my time, Madam Chair, I would like to say that I know 

it was unpreventable, but many Republicans are not here right 

now because of a Republican conference that was all but mandatory, and I expect that we will have a number of Members show 

up in just 10 or 15 minutes. 

The other thing I wanted to mention is that unfortunately I have 

a suspension bill on the floor, and at some point this morning I will 

have to absent myself and go handle that suspension bill. I will regret missing a part of your testimony and responses, Mr. Secretary, 

as well. 

With that, Madam Chair, I will yield back. 

Ms. LOFGREN. The gentleman yields back. 

We could recess this hearing until 10:15, at the end of the conference, but I thought there was an interest in proceeding. So the 

interest is in proceeding, then? All right, then we will proceed. 

Thank you. 

Without objection, other Members’ opening statements will be included in the record. 

We would now turn to Secretary Chertoff and invite him to give 

us his statement. Welcome, Secretary Chertoff. 

TESTIMONY OF THE HONORABLE MICHAEL CHERTOFF, 

SECRETARY, U.S. DEPARTMENT OF HOMELAND SECURITY 

Mr. CHERTOFF. Thank you, Congresswoman Lofgren and Congressman Smith and other Members of the Committee. I have a 

full written statement that was submitted that I ask the—— 

Ms. LOFGREN. Without objection, the full statement will be made 

part of the record. 

Mr. CHERTOFF. I appreciate the opportunity to talk about the Department’s continued efforts to secure the country and protect the 

American people. I appreciate this Committee’s role in providing 

4 

guidance on the issue of immigration. Together with the strong 

support and partnership that Chairman Thompson and Ranking 

Member King have given this Department through their oversight 

on the House Homeland Security Committee, which is our authorizing Committee, we are able to work together in partnership with 

Congress to enhance our national security. 

As you know, this is the fifth anniversary week of the Department. Over the last 5 years, we have in fact made enormous strides 

in building national capabilities, plans and partnerships to defend 

our country against all hazards. I have divided our mission into 

five basic priority goals: protecting our Nation from dangerous people; protecting our Nation from dangerous things or goods; protecting our critical infrastructure; strengthening our emergency 

preparedness and response capabilities; and integrating our management and operations. 

Today, I would like to focus my testimony on our substantial 

progress toward these goals, focused on the issue of our efforts to 

secure the border and manage immigration. Last August, Secretary 

Carlos Gutierrez and I laid out 26 reforms the Administration 

would pursue to address the Nation’s immigration challenges within the framework of our existing laws. We have made substantial 

progress toward these goals, although we have not yet achieved 

them. I would like to highlight some of that work today. 

Let me begin at the border, because the challenge of immigration 

and illegal immigration begins at the border, although it does not 

end at the border. In the time that has intervened, particularly 

since we announced our secure border initiative in 2006, we have 

made dramatic increases, adding fencing, border patrol, and technology between the ports of entry, and we have also made significant steps in tightening the travel document requirements and 

other security measures that apply at our ports of entry, including 

the use of biometrics in the transition from a two-print biometric 

system to a 10-fingerprint biometric system, which is currently underway not only overseas at our consulates, but here at our airports of entry. 

We have constructed 303 miles of fencing along the southern border, including about 168 miles of pedestrian fencing and about 135 

miles of vehicle fencing. This places us on-target to have 670 miles 

of barriers in place at the end of the year. To give you some visual 

sense of what that means, that will mean that the vast majority 

of the area from the Pacific Ocean to the Texas-New Mexico border 

will have some kind of a barrier in place by the end of this year, 

except in those areas where there is a natural barrier like a mountain or something of that sort. 

We have currently expanded the Border Patrol to more than 

15,500 agents, with plans to reach over 18,000 by the end of the 

year. Again, by way of comparison, when the President took office 

in 2001, we had somewhat over 9,000 agents, so we are going to 

have doubled the number of Border Patrol agents in this intervening period of time. 

We have also continued to deploy technology to the border as 

part of our Secure Border Initiative, SBInet. Here, because of a triumph of inaccurate press reporting, I am going to take the opportunity to lay out in fact what we are doing technologically at the 

5 

southwest border. SBInet is a strategy of using a number of different kinds of technological systems to enhance the ability of the 

Border Patrol to identify people illegally crossing the border and to 

apprehend them. 

This includes things such as unmanned aerial vehicles. We took 

delivery of the fourth unmanned aerial vehicle about 2 weeks ago. 

These UAVs cruise above the border with cameras. I have personally witnessed how they allow us to identify groups of illegal aliens 

in remote areas or groups of drug smugglers in remote areas so 

that we can communicate with ground-or air-based Border Patrol 

assets in order to intercept and apprehend these smugglers. 

Our technology also involves the use of ground sensors, and we 

will have in place more than 7,500 ground sensors by the end of 

this fiscal year. It also includes what we call mobile surveillance 

systems. Again, I have had the opportunity to witness these work. 

These are basically radar systems and camera systems that are inplace on vehicles that can be situated in various places at the border. We currently have about a half-dozen. By the end of this year, 

we will be at 40. 

So these systems are working. They produce real value. We are 

expanding them and we will continue to expand them. 

One element of this strategy is the development of an integrated 

approach to using fixed-base radar and cameras along a swath of 

border. We began the process of testing this approach through a 

prototype system that we deployed along 28 miles of the border in 

the vicinity of Sasabe, Arizona. This is known as Project 28. 

Some people have misconceived Project 28 as the entirety of 

SBInet. I would say the more accurate way to describe it is Project 

28 is to SBInet as a single battle cruiser is to the United States 

Navy fleet. It is an element of the capability, but it is not the entirety of the capability. 

This project, Project 28, was delayed about 5 to 6 months before 

acceptance due to some problems with the technology. When the 

problems arose last summer, I personally had a conversation with 

the CEO of Boeing, which I would describe as an unvarnished conversation, in which I told him that we were not wedded to using 

this approach and that if the approach could not be made to work 

properly, we would not pursue it any further. 

To his credit, he overhauled the team that was working on the 

project. Most of the material problems were corrected by December. 

We took conditional acceptance. We began to work with it directly 

and operationally. The remaining material problems were corrected. Immaterial problems were dealt with by our receiving a 

credit. The additional effort and time put into fixing the system, 

the money for that was eaten by Boeing. We didn’t pay extra. It 

was a $20 million system and we paid $20 million, less the credits 

we got. 

The system is now functional and working. I have asked the Border Patrol. I have looked them in the eye from the chief of the Border Patrol down to the project manager, to the senior people at the 

border. I have said to them: Does this add value? Because if it 

doesn’t, I am happy to use all the other tools that we have. They 

have looked me in the eye and they have said it does add value. 

Now, we need to take it to the next level, and that is what we are 

6 

in the process of doing. We expect to begin further deployments 

this year in 2008 in other parts of Tucson and a sector at the border. 

At the ports of entry, we recently ended the practice of accepting 

all declarations of citizenship. This actually received a little bit of 

controversy, although I frankly thought the remarkable thing was 

that we had ever accepted oral declarations. But we have ended the 

practice. This will reduce false claims of U.S. citizenship. We have 

ended the practice without causing large backups at the border. In 

fact, there has been a very high level of compliance with our new 

document requirements. 

Let me take the opportunity to address this issue of identification documents in the larger context of the Western Hemisphere 

Travel Initiative (WHTI) which Congress has now delayed implementation of until June 2009, and in the context of the REAL ID 

Act. It is my conviction based upon what I have observed, every 

time we have made secure documents available to the American 

public, that the public wants secure documents. 

The enhanced driver’s license which the state of Washington has 

recently begun to issue, which is REAL ID-compliant and which 

will be WHTI-compliant, these are going like hotcakes. People want 

it. All we have to do is give it to them, and the market will operate. 

So I propose we continue to move along this course. 

As Congressman Smith noted, interior enforcement is a critical 

element of this process because the economic engine that brings 

people into the country is the largest factor in controlling illegal 

immigration. I set a new record last year with 863 criminal arrests 

in worksite enforcement cases, including 92 people in the employer 

supervisory chain. We further had over 4,000 administrative arrests. 

Let me say that just in the last couple of days, Richard Rosenbaum, the former president of a contract cleaning service who we 

arrested last year for harboring illegal aliens and for conspiracy to 

defraud the U.S. and harbor illegal aliens, was sentenced to 10 

years in prison. Ten years in prison is a sentence that will get an 

employer’s attention because it is comparable to the kinds of sentences that serious felons get for other kinds of crimes. 

So we are going to continue moving forward with this. We have 

raised the fines. We have worked with the Department of Justice 

to raise fines against employers by 25 percent. E-Verify, again, is 

a system and the marketplace is speaking. We are adding between 

1,000 and 2,000 employers a week to the system. We are up to 

more than 54,000 nationwide. I join Congressman Smith in urging 

Congress to reauthorize the system that employers want because 

it allows them to follow the law. That is what they want to do, the 

vast majority of them. 

Finally, let me say that ICE has removed more than 31,000 fugitives in fiscal year 2007, nearly double the previous year, and initiated removal proceedings against 164,000 illegal aliens in U.S. jails 

in 2007, which is compared to 70,000 the prior year. So we are dramatically ramping up our removals. Although I agree with Congressman Smith that some countries are not being cooperative and 

we have to find a way to address this issue. We want to continue 

7 

to build on this progress which the President’s proposed budget in 

2009 would do. 

Finally, we recognize that there is a need for labor in certain sectors of the economy that has previously been satisfied through the 

use of undocumented workers, that we are going to have to find a 

lawful way to satisfy. And that is why last month Secretary Chao 

and I proposed changes to the H2A seasonal agricultural worker 

program to allow employers to have a legal way to bring temporary 

workers in to perform agricultural work. We want to work with 

Congress to modify some other programs like the H2B program, 

which are lawful ways people can come into the country and work. 

So with these efforts and others, we hope to continue to build the 

kinds of capabilities that will move us forward toward an immigration system that is protective of American interests, that is fair, 

but that respects the rule of law, and that also deals with legitimate economic needs that we have in this country. 

Thank you for hearing me, and I look forward to answering questions. 

[The prepared statement of Mr. Chertoff follows:] 

8 

PREPARED STATEMENT OF THE HONORABLE MICHAEL CHERTOFF


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Ms. LOFGREN. Thank you, Mr. Secretary. 

We will now move to questions by Members of the Committee. 

I will begin. 

As you are aware, I spend much of my time here in Congress on 

my assignment as Chair of the Immigration Subcommittee. One of 

the things that has become clear to us is that we have a problem 

with service-members and their families, particularly now in this 

time of war. It seems to me there is no greater duty that we owe 

than to those men and women who are serving in our armed services, especially in a combat zone. The last thing we want to do is 

to add stress to them at a time of their service. 

Now, I have recently been advised that USCIS has issued a number of notices to appear to soldiers and sailors for deportation because of paperwork glitches. For example, if one is the recipient of 

a petition based on marriage to an American citizen, there is a condition on the permanent residence that is removed after 2 years, 

and you have to file a piece of paper to remove the condition. But 

because we allow soldiers and sailors to naturalize on a more expeditious basis, the Army has suggested that you just proceed on the 

naturalization petition. Instead of that, we have issued deportation 

orders to our soldiers. 

I am very concerned also about family members. We had a sailor 

appear before our Subcommittee last year. He came in his Navy 

whites. His wife was undocumented, and he was about to be deployed for the third time to the Gulf. And he told us in his testimony that he is having a hard time concentrating on his work defending our country because he was so worried about whether his 

wife would be deported while he was deployed to the Gulf. 

So I think we need legislation to address these situations. I am 

working on that right now, but I think there are some things that 

your Department can do in the interim to help our soldiers and 

family members in those circumstances. For example, last year 

Specialist Alex Jimenez was serving in Iraq. He was attacked and 

listed as missing. His wife was undocumented and was facing deportation. Your Department granted her parole to avoid her deportation and allow her to adjust her status and get a green card. 

Can you advise us what steps you are prepared to take while we 

are working on legislation, to make sure that the husbands and 

wives of our soldiers don’t get deported while they are serving? 

Mr. CHERTOFF. You know, it is very hard to generalize. First of 

all, I share your appreciation for the work that service-people do. 

I was in Iraq last year and I got to participate in a naturalization 

ceremony for service-members who had come from all over the 

world. I think we want to be as fair and as considerate as possible 

of service-people. 

Now, I can’t generalize as to why sometimes a family member is 

deportable. If it is merely a paperwork violation or a glitch in 

something that prevents someone who would otherwise be entitled 

to adjust, if there is some technical issue where they have missed 

some piece of paperwork, we should work to address those issues. 

If there is some more substantive reason someone is going to be deported, then that may not be something we can address. So I think 

we need to be practical and humane about it. 

28 

Ms. LOFGREN. Could you, if not today, get back to us? Because 

it just seems to me, the last thing we want is notices to appear 

being issued to our soldiers in the field. I mean, we have to stop 

that. 

Mr. CHERTOFF. I agree. And certainly that is the kind of thing 

I think we can correct. Will something slip through the cracks 

sometimes? Experience tells me that in a large organization with 

many, many transactions, a few things slip through the cracks. But 

I agree with your basic principle. 

Ms. LOFGREN. Let me turn to another question. I understand 

that the Department is actively considering an extension of the optional practical training program known as OPT for students. I 

have written you a letter, in fact, asking that the OPT be extended 

for up to 29 months. I think this is one of the easiest ways to make 

sure that there is reform to the visa program, especially as it relates to highly skilled individuals, which I know from our prior discussions you feel is an important component of immigration to 

America. 

It is important if we are going to do this that this regulation be 

issued before graduation this spring so that employers and graduating students can make their plans. I am hoping that if we are 

going to do this, we can do it promptly. 

I want to talk about a rumor that I have heard that OPT would 

be conditioned on mandatory E-Verify, which seems to me unnecessary because E-Verify will not give us any more information on 

these students than we already have. All of these students are already tracked through CEVUS, which DHS runs, and they are already work-authorized because we have given their work authorization. 

So I am just hoping that this simple idea doesn’t sink with additional mandates that actually won’t provide any additional information to the Department except just paperwork. Can you address 

those two issues? 

Mr. CHERTOFF. Well, (A) I agree with you. I think we do want 

to get this new regulation out in as timely a way as possible. As 

you know, under the law, because it is in the regulatory process, 

if I were to start to identify specific issues and talk about them, 

I would pretty much guarantee being in court and the whole thing 

would get derailed. So we take seriously all the comments we get. 

We take them onboard and we will try to get this thing out as 

quickly as possible. 

Ms. LOFGREN. All right. 

I will turn now to Mr. Smith for his questions. 

Mr. SMITH. Thank you, Madam Chair. 

Mr. Secretary, thank you again for being here and appearing before us. It so happens that I think you have the second-toughest 

job in all the Federal Government, although I realize the attorney 

general may question that. But still, I appreciate your answering 

questions. 

I want to ask some questions in regard to securing the border. 

As you know, the Secure Fence Act requires 700 miles of doublefencing. It is my understanding that was made optional by a Senate amendment to the omnibus bill. It is my understanding that 

29 

now the plan it to build about 30 miles of double-fencing of that 

700 miles of other kinds of fencing. Is that correct? 

Mr. CHERTOFF. I think we may now have about 30 miles of double-fencing. What we are committed to doing by the end of this calendar year is 670 miles, and then how much of that will be doublefencing, I don’t have a figure for that because I think we are going 

to make a decision after we build this, based on the advice of the 

Border Patrol, where double-fencing makes sense and where it 

doesn’t make sense. 

Mr. SMITH. Okay. Do you consider pedestrian fencing and vehicle 

barriers to be as effective as double-fencing? 

Mr. CHERTOFF. In many areas, yes, I do. 

Mr. SMITH. Double-fencing stops about 99.5 percent of the traffic. 

Mr. CHERTOFF. I disagree. I don’t think double-fencing stops anybody. All fencing does is slow people up. 

Mr. SMITH. Where they have had double-fencing in San Diego, it 

is my understanding that there was a virtual halt to people coming 

over the fences. 

Mr. CHERTOFF. No, here is what the ground truth is. The doublefencing slows people up. Now, where there was nothing going on 

in other parts of the border, the smugglers moved to a place which 

was easier. That is just common sense. As we have actually built 

up in other parts of the border, the number of people sneaking 

across in the San Diego sector has gone up again slightly. 

I can tell you people go through the fencing. They go over the 

fencing. They go under the fencing. Now, that doesn’t mean the 

fencing doesn’t have value. It slows people up. 

Mr. SMITH. And you think that the pedestrian fences, for example, are as effective as the double fences? 

Mr. CHERTOFF. I think in many areas, it is as effective because 

if you are out in the desert, the marginal value of the second layer 

of fence to slow somebody up for 15 minutes is really, frankly, useless in terms of the Border Patrol’s ability to get someplace. 

Mr. SMITH. Okay. What are your plans for the other 1,300 miles 

of our southern border? You have mentioned the 670 miles. What 

are your plans for the remainder? 

Mr. CHERTOFF. It is going to vary. As you know, because you are 

from Texas, Congressman, there are large parts of the border that 

have a river that creates a barrier and makes it hard to cross. 

Mr. SMITH. I have seen the Rio Grande both dry and at six 

inches. I have watched people splash across as they run. 

Mr. CHERTOFF. That is right. So in some places, we are building 

fences in Texas. I know you know that that is not a matter without 

controversy. 

Mr. SMITH. Right. 

Mr. CHERTOFF. So the answer is we are going to do a mix of 

things. We will build additional fencing and barriers beyond the 

670 miles in some areas. In some areas, we will rely upon cameras 

and sensors. 

Mr. SMITH. The virtual fence? 

Mr. CHERTOFF. We may cut some of the Carrizo cane down, 

which will create an unobstructed view in some areas. And in some 

areas where there is a mountain, it is really pretty much a natural 

barrier. 

30 

Mr. SMITH. Mr. Secretary, how much of the 2,000-mile southern 

border do you have plans to somehow have some type of system in 

place to guard against—— 

Mr. CHERTOFF. We will eventually have a system in place on 

every mile. It is going to vary depending on what the mile is. 

Mr. SMITH. Okay. And when would that system be in place for 

the 2,000 miles? 

Mr. CHERTOFF. I would expect that we will have—well, of course, 

we have something in place now almost everywhere, so we are 

going to continue to improve it and build it. I would imagine a lot 

of work will be done over the next 2 years to fully deploy technology and the next generation technology. 

Mr. SMITH. But it may go beyond this Administration, so you 

really can’t say when? 

Mr. CHERTOFF. I can tell you where we are going to be at the 

end of this calendar year. We are going to have over 7,500 sensors, 

670 miles of fencing, and the other technical systems I have talked 

about. 

Mr. SMITH. I understand that, Mr. Secretary. Thank you for 

those answers. 

Let me squeeze in one more question, and that is to your credit, 

the number of removals of criminal aliens has dramatically gone 

up. But it is still my understanding that those criminal aliens who 

are now incarcerated in state and local jails, the vast majority of 

those individuals will still be released into our communities this 

year. Is that an accurate statement? 

Mr. CHERTOFF. I don’t know that I would agree that the vast majority of people incarcerated will be released—— 

Mr. SMITH. I didn’t say ‘‘vast majority.’’ I just said a majority. 

Mr. CHERTOFF. I don’t know that I would say a majority will be 

released this year because I don’t think their sentences are all 

going to expire this year. 

Mr. SMITH. Okay. Well, of those who are set to expire, then will 

the majority be released into our communities? 

Mr. CHERTOFF. Well, I don’t know that I could say that either. 

I do agree with you, though, that we are not at the point now 

where we can deport everybody. 

Mr. SMITH. I know you are working on that, but today it is my 

understanding from the inspector general that over half will still 

be released into our communities. I know you are working on it 

and I know you are improving it, but do you agree or disagree with 

that statement? 

Mr. CHERTOFF. I can’t verify that statement. I know there are 

supposed to be several hundred thousand illegal aliens in custody. 

Since I am assuming that their sentences don’t all expire in 1 year, 

I can’t tell you how many would get out that wouldn’t be covered 

by our programs. So I can’t disagree, and I can’t agree with your 

statement. 

Mr. SMITH. Thank you, Mr. Secretary. 

Thank you, Madam Chair. 

Ms. LOFGREN. Thank you. 

I will now recognize the Chair of our Constitution Subcommittee, 

the gentleman from New York, Mr. Nadler. 

Mr. NADLER. Thank you. 

31 

Mr. Secretary, in February of 2003, Congress provided $1 billion 

in 9/11 disaster assistance to FEMA, in the words of the statute, 

‘‘to establish a captive insurance company or other appropriate insurance mechanism for claims arising from debris removal which 

may include claims made by city employees.’’ The purpose of the 

fund was to remove the financial burden from the city, while providing compensation to those working at Ground Zero who had 

been injured thereby. 

FEMA subsequently signed a grant agreement with the city of 

New York establishing the World Trade Center Captive Insurance 

Company to handle 9/11 claims. Unfortunately, the WTCC has argued that is has ‘‘a duty to defend every claim,’’ and has litigated 

every single claim in Federal court. Congressional intent was to 

pay claims, not to fight claims. They have spent so far over $50 

million in legal fees and $45,000 in claims to someone who fell off 

a ladder and broke his arm. 

There are about 10,000 lawsuits pending or 10,000 claimants 

who claim to have suffered health effects from the pollution at 9/ 

11, mostly first responders. Since FEMA reports to DHS, are you 

doing any oversight on the captive insurance company to see that 

it does its job? 

Mr. CHERTOFF. I guess I have a question for the Chair. I recognize there is a lot of latitude in Committee hearings, but I actually 

thought this subject matter and the jurisdictional basis for the 

hearing was immigration. I know our main authorizing Committee 

has jurisdiction obviously over the whole Department. I guess my 

question is, is this the kind of—— 

Ms. LOFGREN. Actually, the Judiciary Committee does have jurisdiction over claims. 

Mr. CHERTOFF. So the short answer is, not having anticipated 

being asked about this captive insurance company, I am not in a 

position to give you an answer. 

Mr. NADLER. Could you please give us an answer in the next couple of weeks to two questions? What are you doing about oversight 

of the captive insurance company? And do you believe that Congress provided this money to fight the claims of the heroes of 9/11? 

Because essentially what they are doing is they say that they are 

there to protect the city and the contractors and that they must 

litigate every single claim, sort of like an insurance company that 

says if you get into a car accident, we won’t pay you unless you sue 

us first. Not that we will investigate it and decide whether to pay 

you, but automatically you have to bring a lawsuit, which doesn’t 

make any sense. We have been dealing with this now for 3 years, with $50 million in legal fees, $45,000 paying out one claim. I don’t think that was 

the congressional intent, and it is under your jurisdiction. You did 

get the money, so I hope you will take a look at it. 

Mr. CHERTOFF. I will find out about it. 

Mr. NADLER. Thank you. 

My second question has nothing to do with that, you will be relieved to know. Going to the so-called ‘‘rendition’’ cases, in this case 

the Arar case, I am sure you are familiar with that, the Maher 

Arar case—— 

Mr. CHERTOFF. Yes. 

32 

Mr. NADLER [continuing]. Which was a case some people say was 

another example of extraordinary rendition. The Department has 

said that no, no, no, this was an expedited removal because Mr. 

Arar in coming through Kennedy Airport, even though he was coming only to switch planes to continue on to Canada, was entering 

the country, and rather than enter the country, we shipped him off 

to Syria, having gotten assurances from the Syrian government 

that they wouldn’t torture him, assurances which were subsequently not honored. 

Now, a week ago Representative Delahunt and I sent a letter to 

you asking for specific information as to the diplomatic assurances 

given in the Arar case and the extent to which those assurances 

complied with regulations implementing the obligations of the 

United States under article III of the Convention Against Torture. 

Now, we have not received an response, but we only sent that letter to you about 11⁄2 weeks ago. But I do ask if you will commit 

to us to provide a response to Representative Delahunt and myself 

within the next 10 days or so. 

Mr. CHERTOFF. I guess the only question I have is, DHS did not 

exist during the time of this case. So I don’t know whether the appropriate recipient of that request is the Department of Justice or 

the Department of Homeland Security. I know the legacy of INS is 

now in DHS, but I guess we are going to have to sort out with the 

attorney general who the right person is—— 

Mr. NADLER. There are really two questions. Sort it out with the 

attorney general. It may be that you should delegate part of the answer to him, but I also ask that you commit to providing the Committee, and what I am about to say would be your Department, 

with copies of regulations or other guidance promulgated by or applicable to DHS that as required by the Foreign Affairs Reform and 

Restructuring Act of 1998, assure compliance with the Convention 

Against Torture. 

Mr. CHERTOFF. All right. Whatever is within our domain, we will 

supply. 

Mr. NADLER. I see that my time has run out, so thank you very 

much. 

Ms. LOFGREN. The prior Chairman of the Committee, the gentleman from Wisconsin, Mr. Sensenbrenner, is now recognized. 

Mr. SENSENBRENNER. Thank you very much, Madam Chair. 

Mr. Secretary, I want to ask a couple of questions that would require only a yes or no answer. The first one is, is the basic pilot 

program relative to verification of Social Security numbers working 

or not? 

Mr. CHERTOFF. Yes. We call it E-Verify, but it does work. 

Mr. SENSENBRENNER. Okay. The second subset, is E-Verify working? 

Mr. CHERTOFF. Yes. The basic pilot is now E-Verify, so it is the 

same thing. 

Mr. SENSENBRENNER. Okay. As I was driving in this morning, I 

was listening to my favorite morning talk show. 

Mr. CHERTOFF. NPR? 

Mr. SENSENBRENNER. No, sir. Guess again. [Laughter.] 

Our former colleague, Fred Grandy, is more of a repository of 

wisdom, now that he is not in Congress, than when he was. He was 

33 

talking about an incident in Prince William County in the last 

week where they have a new program relative to cracking down on 

illegal immigrants. 

Apparently, the Prince William County police identified four illegal immigrants in that county who were stopped either for traffic 

offenses or something else that was relatively minor, and the local 

law enforcement called up ICE and asked them to come and pick 

these folks up and ICE refused. Why is that? 

Mr. CHERTOFF. I don’t know the specifics of the case. I can tell 

you in general, like everybody else, there is some limit to resources. 

We try to respond to requests, but we may not be able to drop what 

agents are doing at any given particular moment and go out to respond to a call. 

So we try to work with locals to find out an efficient way, so if 

there are a number of people who are illegal and they have a basis 

to hold them until we get to a number that we can efficiently apprehend and remove, we work with it that way. Otherwise, we 

wind up literally running from pillar to post, and it would be hard 

to actually, for example, chase fugitives or criminal aliens or things 

of that sort. 

Mr. SENSENBRENNER. Don’t we expand the resources in enforcing 

our immigration laws when a jurisdiction like Prince William 

County, Virginia authorizes its local law enforcement officers to 

check on the immigration status of people who are stopped for 

other offenses, mainly traffic offenses? 

Mr. CHERTOFF. Actually, what we try to do in the first instance 

is, if they are willing to do it, is train them so they can do some 

of the work themselves, and that relieves some of the burden. Secondly, although we can take a little bit of account of the traffic 

flow, there are a finite number of agents. If we put a lot of agents 

in Prince William County, they are coming out of other places. 

Mr. SENSENBRENNER. With all due respect, Mr. Secretary, you 

don’t need more agents. Here, you had local law enforcement. They 

pick four people up. They called up ICE and said come and pick 

them up and hopefully put them in removal proceedings, and ICE 

was too busy. So it really didn’t require an awful lot of work for 

ICE agents to do that. 

Mr. CHERTOFF. I guess where we are disagreeing slightly is you 

still have to send a couple of agents over a distance for a certain 

amount of time. I can tell you from my own experience working 

with police over the years, it probably winds up being somewhere 

between a half day and 1 day of work for a couple of agents. I am 

not saying we shouldn’t do it. I am just observing practically that 

we are trying to juggle. Even with additional resources, we still 

have more demand than supply. 

Mr. SENSENBRENNER. Do you know the message that you are 

sending to local communities that want to help enforcing the immigration laws by saying, well, what you are doing is really a low priority for us. That is what you just said. 

Mr. CHERTOFF. No. Let me be clear about what I said. I said first 

of all, we would love to help you, train you so you can do some of 

this yourself. But I find myself in the same position in answering 

that question that anybody who has made a career in law enforceVerDate Aug 31 2005 14:32 Sep 16, 2008 Jkt 000000 PO 00000 Frm 00037 Fmt 6633 Sfmt 6601 H:\WORK\FULL\030508\41082.000 HJUD1 PsN: 41082
34 

ment has. You are not able necessarily to prosecute or respond to 

every crime. 

When I was a prosecutor in New York doing drug cases, we could 

not arrest every single low-level drug dealer, even though we wanted to. There just weren’t enough agents and there weren’t enough 

prosecutors. So we made choices about who were the worst people 

and those are the people you go after. Now, as we get more resources, we can do more and that is what we are doing. 

Mr. SENSENBRENNER. I grant you that, but again listening to 

what was on the radio this morning as I was driving in, the taxpayers of Prince William County, Virginia are spending their own 

money to try to identify illegal immigrants and to put them into 

the judicial process so that they would be removed from the country. In my opinion, that is an expansion of resources on that. I believe that the election for county commission in that county last 

fall, that was a major issue and the voters reelected the people who 

wanted to crack down on illegal immigration. 

Now, immigration is a Federal issue. I think we all realize that. 

But Mr. Secretary, you have got to do a better job of coordinating 

your resources with those local jurisdictions that want to spend 

their own money and their own personnel to try to enforce the immigration law, rather than simply doing what ICE did and that is 

blowing off Prince William County’s officials. 

My time is up and I yield back. 

Ms. LOFGREN. The gentleman yields back. 

We would now invite the Chair of the Crime Subcommittee, Mr. 

Bobby Scott of Virginia, to begin his questions. 

Mr. SCOTT. Thank you. 

Mr. Secretary, how many members of your senior staff are with 

you today? 

Mr. CHERTOFF. I guess maybe one. I do have the general counsel 

with me. 

Mr. SCOTT. Do you have other members of your staff? 

Mr. CHERTOFF. Yes, I have some legislative staff people. I don’t 

know if you consider them senior. 

Mr. SCOTT. Can all your staff stand up? Could you have all your 

staff stand up, please? 

Mr. CHERTOFF. My personal staff? Yes, stand up. 

Mr. SCOTT. Everybody from the Department. 

Thank you. 

Mr. CHERTOFF. A lot of them are legislative affairs. We have a 

press guy here and other people with specific expertise. 

Mr. SCOTT. Thank you. 

I represent an area where port security is a big deal. Some of the 

port people have indicated that they are having problems with port 

security grants because they have to deal with several agencies— 

FEMA, TSA, DOJ—each agency with their own particular regulations and processes. Is any effort being made to streamline the port 

security grant program? 

Mr. CHERTOFF. Yes, I think it is actually streamlined. I don’t 

know why you would be dealing with DOJ, unless it is a separate 

grant. The grants are all done—— 

35 

Mr. SCOTT. Okay. Let me get you some specifics, and I will ask 

a more focused question. Right now, you can’t use the grants for 

personnel costs? 

Mr. CHERTOFF. That is largely true. There are some few exceptions. 

Mr. SCOTT. Okay. Port security identification, how is that program working? 

Mr. CHERTOFF. We have tens of thousands of people who have 

currently enrolled in the TWIC program, so it is proceeding very 

well. I think 40 or 50 ports are now part of that process. 

Mr. SCOTT. And are the IDs being issued on an expedited basis? 

Mr. CHERTOFF. Yes. 

Mr. SCOTT. Consumer ID theft is a problem nationwide. Is that 

under your jurisdiction, under Secret Service? 

Mr. CHERTOFF. We share jurisdiction over that. 

Mr. SCOTT. One of the problems with consumer ID theft is that 

after the credit card is cancelled and the person’s account is reimbursed, nothing ever happens. That is why the ID theft is such a 

lucrative practice. Are you pursuing consumer ID theft cases? 

Mr. CHERTOFF. We pursue ID theft cases in general. We don’t 

have jurisdiction over consumer matters per se, but in the context 

of what we do with, for example, illegal immigrants, we do have 

documents and benefits for our task forces. We do make criminal 

cases involving identity theft. The case involving the 10-year sentence I just mentioned grew out of an investigation involving identity theft. 

Mr. SCOTT. Most ID theft is not even investigated, much less 

prosecuted. Is that true? 

Mr. CHERTOFF. I can’t answer that. I am not in a position to either agree or disagree with that. 

Mr. SCOTT. Okay. On the no-fly lists or the watch lists, if someone gets their name on a no-fly list, is there any way to correct the 

information if it is not accurate? 

Mr. CHERTOFF. Yes. There is a redress process that TSA has that 

is both online and in person. The biggest challenge we have is that 

under the current system, because we are not yet into what we call 

Secure Flight, when we make a correction we communicate it to 

the airlines. Some airlines do a good job of changing their records 

to reflect the correction and some do not. For those airlines that 

do not, the mistake sometimes continues to get repeated because 

either the airline is incapable or not interested in making the effort 

in order to correct the problem. 

Mr. SCOTT. Once you get the list, each airline has to update the 

list? 

Mr. CHERTOFF. Yes. The current system is that we provide the 

list to the airlines and they run the list against their manifest. 

What we would like to do is reverse the process. That is what we 

are trying to do with Secure Flight. 

Mr. SCOTT. Citizenship, many people who are properly documented and want to become citizens are having to wait. What is 

the wait time to become a citizen for a routine case? And what is 

being done to eliminate the backlog? 

Mr. CHERTOFF. It has gone up because we had a doubling in the 

number of applications. We are in the process of hiring I think 

36 

1,500 additional adjusters or something like that. We are trying to 

deal with two separate issues. One is simply the volume of intake, 

which requires us to hire more people to adjudicate the cases and 

also we are trying to get from a paper-based system to an electronic-based system. 

The second, and probably more difficult thing for a minority of 

people, is the background check process, because for the FBI name 

check, most people go through very quickly, within a matter of a 

few months, but for some if the name crops up in an old paperbased file, the FBI has to go back and hunt for the actual file. They 

are sometimes not capable of doing that within a reasonable period 

of time. 

So now we have put more money into the name check process 

and we are working with the FBI to try to find a way to, (A) input 

a lot of those records into databases so they can be searched more 

readily; and, (B) we are trying to examine the system to see if 

there is any way we can make it more efficient. That is the second 

obstacle. 

Mr. SCOTT. Thank you. 

Ms. LOFGREN. The gentleman’s time has expired. 

I recognize the Ranking Member of the Courts Subcommittee, 

Mr. Howard Coble from North Carolina. 

Mr. COBLE. Thank you, Madam Chairman. 

Mr. Secretary, good to have you with us today. 

Mr. Secretary, I am told that there may be as many as 600,000 

fugitives in the United States illegally and that there may be as 

few as 30,000 beds to detain them. Let me ask you a two-part question, assuming these figures are correct. How are you approaching 

this dilemma, (A)? And has the Administration budgeted for additional beds to address the problem? 

Mr. CHERTOFF. We more than doubled over the last year or so 

what we call the fugitive apprehension task force. Last year, we 

doubled the number of fugitives we apprehended. We are also asking for more beds in the 2009 budget which should get us up to 

33,000. The limiting factor in apprehending fugitives is not the 

number of beds at this point. It is finding them. Fugitives, not surprisingly, hide, and it is a big country. 

So we have added more teams to go hunt for them, and I think 

that is why we have been able to increase or double the number 

of fugitives we apprehend. But again, it is the sheer work involved 

in finding them that is the limiting factor. 

Mr. COBLE. Is the 600,000 figure approximately correct? 

Mr. CHERTOFF. It sounds like it is about right, but I can’t verify 

it or not. 

Mr. COBLE. Mr. Secretary, put on your Coast Guard hat. You 

wear many hats at DHS I know. What challenges does the Coast 

Guard face in deterring illegal immigration over the Nation’s coasts 

and waterways? And does the Department have the necessary tools 

to prosecute alien smugglers? 

Mr. CHERTOFF. You are quite right, Congressman, that the Coast 

Guard actually does play an important role with respect to migrant 

smuggling. That is particularly true in the general area of the 

southeast United States. We do have the plans and capabilities, 

37 

and on a regular basis we deploy them to intercept illegal migrants 

who are trying to come in by way of seas. 

Most often it is not a question of prosecuting them, it is just a 

question of returning them to the place from which they came. We 

do have capabilities obviously if necessary to prosecute them in the 

United States if we actually get a smuggler, but my preferred thing 

is just to send them back where they came from. 

Mr. COBLE. Do you need additional tools to aid in the drug interdiction mission? 

Mr. CHERTOFF. I think at this point, working with the Navy, the 

Coast Guard does have and we have in the budget some additional 

capabilities, does have the capabilities necessary to perform its 

mission. But we do rely upon the Department of Defense and Customs and Border Protection, and Coast Guard to work together in 

terms of drug interdiction. 

Mr. COBLE. I am told that the Coast Guard is responsible for a 

six million square mile area between the U.S. mainland and the 

Caribbean, the Gulf of Mexico and the Eastern Pacific. I don’t know 

how they accomplish that mission. Sort of like your bed situation 

with the fugitives. 

Mr. CHERTOFF. They do a great job. There are a couple of things 

that help: (A) we do partner with the Navy and that gives us additional capabilities; second, the use of intelligence allows us to more 

effectively deploy our resources. We had a record number of cocaine 

seizures last year, including one very large seizure off a boat. But 

it is the ability to identify something that is coming, based on intelligence, that allows us to put our helicopters and our cutters where 

they need to be to intercept these vessels. 

Mr. COBLE. Thank you, Mr. Secretary. 

Madam Chair, I want you to award credit to me for yielding before the red light illuminates. 

Ms. LOFGREN. Credit will certainly be due. 

We turn now to the other gentleman from North Carolina, Mr. 

Watt. 

Mr. WATT. Thank you, Madam Chair. I presume that credit spills 

over? 

Ms. LOFGREN. It doesn’t belong to the state, no. 

Mr. WATT. To the rest of the state. [Laughter.] 

Mr. Chertoff, Mr. Scott made a point, but I am not sure you understood the point, nor did the record get the purpose of his point 

when he asked you to have your staff stand up. Just for the record, 

I think the point Mr. Scott was making is you brought 10 staff people with you, all White males. I know this hearing is not about diversity of the staff, but I hope you have more diversity in your staff 

than you have reflected here in the people that you brought with 

you. Please reassure me that that is the case. 

Mr. CHERTOFF. That is definitely the case. I wouldn’t assume 

that the ethnic background of everybody behind me is self-evident. 

Mr. WATT. I wouldn’t assume that the ethnic background of everybody behind you is self-evident either, but I think I know an African American when I see one, and if I see one back there, if anyone wants to stand up and volunteer and tell me they are an African American, I hope they will do it right now. If anybody is a feVerDate Aug 31 2005 14:32 Sep 16, 2008 Jkt 000000 PO 00000 Frm 00041 Fmt 6633 Sfmt 6601 H:\WORK\FULL\030508\41082.000 HJUD1 PsN: 41082
38 

male that is sitting back there and wants to stand up and volunteer to tell me that, I hope they will do it right now. 

And I want the record to show clearly that nobody stood up to 

volunteer in either one of those categories. So if you want to make 

that point and be cute about it, let me be explicit about it, Mr. 

Chertoff. If we are going to do law enforcement in this country, we 

need to understand that there is an element of diversity in our 

country that I don’t see represented here. I will take your word 

that it is represented more effectively in the composition of the rest 

of your staff, and move on to what I would like to really ask about. 

There is a provision in 8 CFR that allows an immigration officer 

on a reasonable suspicion based on specific articulable facts that a 

person being questioned is in the U.S. illegally, to briefly detain the 

person for questioning. One of the concerns that people have expressed and has been reported is the definition of ‘‘brief’’ and the 

definition of ‘‘specific articulable facts,’’ which apparently has gone 

to ‘‘escaping’’ in your enforcement efforts. 

In particular, when ICE raided Swift and Company, a 

meatpacking plant in 2006, you detained hundreds of workers, 

many of them U.S. citizens or lawful permanent residents. Can you 

tell me how you all define ‘‘brief’’ and how you define what ‘‘specific 

articulable facts’’ that create a reasonable suspicion would be? 

Mr. CHERTOFF. I think it is a well-settled area of the law. Basically, in the circumstance where you have a reason to believe there 

may be a large number of undocumented workers, I think the law 

is clear that we have the right to ask everybody in the facility what 

their status is and to briefly question them. Now, if at that point 

there is reason to believe that the answers aren’t making sense and 

you want to inquire further, we have the right and the legal ability 

to do that. 

Mr. WATT. And you have the right to deny them food and water 

and contact with their families and union representatives and lawyers during that brief interval? What is ‘‘brief’’? 

Mr. CHERTOFF. The courts, the law books, as you know, are full 

of courts defining it and I don’t think there is a specific amount of 

time that has ever been determined, like 2 minutes or 3 minutes. 

I think the courts look at all the facts and—— 

Mr. WATT. Well, we are not talking about 2 or 3 minutes here. 

I hope you are not trying to imply for the record the same thing 

you were trying to imply about the status of the people sitting behind you. We are not talking about a 2-or 3-minute detainment, 

Mr. Chertoff. 

Mr. CHERTOFF. You are asking what the definition was. 

Mr. WATT. How long did you all detain those people? 

Mr. CHERTOFF. I am comfortable that given the fact—— 

Mr. WATT. Are you familiar with the case that I am talking 

about? 

Mr. CHERTOFF. I am very familiar. 

Mr. WATT. How long did you detain the people? 

Mr. CHERTOFF. I can’t give you the answer to that right now. I 

am comfortable that the decisions that were made, based on a warrant that allowed us to do the searches, and that yielded literally 

hundreds of undocumented workers in the course of these raids, inVerDate Aug 31 2005 14:32 Sep 16, 2008 Jkt 000000 PO 00000 Frm 00042 Fmt 6633 Sfmt 6601 H:\WORK\FULL\030508\41082.000 HJUD1 PsN: 41082
39 

cluding many who had committed identity thefts and therefore 

were victimizing innocent people—— 

Mr. WATT. So you are saying that whatever you do to innocent 

American citizens, if you get some illegal aliens, you are justified 

in doing it. That is essentially what you are saying. 

Mr. CHERTOFF. I disagree. That is not essentially what I have 

said. What I have said is there are well-settled legal rules. 

Ms. LOFGREN. The gentleman’s time has expired. 

Mr. CHERTOFF. We follow the legal rules and they yield positive 

results. 

Ms. LOFGREN. The gentleman’s time has expired. 

I would turn now to the gentleman from Virginia, Mr. Goodlatte. 

Mr. GOODLATTE. Thank you, Madam Chairman. 

Mr. Secretary, welcome. We are pleased to have you with us here 

today. 

I would like to change the subject over to agricultural workers. 

I have long believed that the H2A program has been unworkable 

for our Nation’s farmers and is in bad need of reform, from the artificially inflated adverse effect wage rate, to the redundant bureaucratic hoops that farmers must jump through to comply with 

the program. 

I have been pushing legislation to make the H2A program a realistic option for our Nation’s farmers, and I was glad to see that you 

issued regulations to grant some relief to farmers as well. As you 

know, farmers seeking to use the H2A program are those who are 

trying to comply with our Nation’s immigration laws and do it the 

right way. 

Would you elaborate on the ways that you have reformed the 

H2A rules and how you believe they will help our Nation’s farmers 

and, to what extent you can, elaborate on how those rules are coordinated with the Department of Labor and what they have done? 

Mr. CHERTOFF. I think, Congressman, as you observed in the 

question, a lot of this really falls in the domain of the Department 

of Labor. So for example, they retooled the wage-rate calculation so 

that it is more precisely tailored to the particular geographic area 

and particular occupations, instead of having a rate that was really 

not well suited for determining what the actual economic realities 

were. 

We have tried to streamline the process in terms of making it 

easier for workers to change jobs without having to go through the 

process all over again; to allow employers to sign up with the program with less paperwork, and even if they haven’t specifically 

identified every individual worker, to grant them a blanket approval so that they can then later supply us with the necessary information about the workers. 

The idea is to eliminate paperwork or bureaucratic obstacles that 

don’t really add value to the program, but have built up over time 

in a way that simply, as you point out, makes it just inhospitable 

to those who want to follow the law. 

Mr. GOODLATTE. Thank you. 

I also want to note your efforts to step up enforcement of employer sanction laws. Quite frankly, given some of the problems in 

some economic sectors, I think we need to see more focus on this. 

In the meantime, I wonder what advice you would recommend that 

40 

I give to constituents who are trying to play by the rules by hiring 

U.S. citizens, and oftentimes paying higher wages to them, only to 

see that their businesses have been undercut by a competitor who 

is hiring illegal aliens to perform the same jobs. 

If you are in the roofing business and the guy down the street 

is hiring people at a lower rate who are not legally in the country, 

and you are trying to bid to get contracts, that is pretty unfair competition. I have had numerous employers contact me about this 

problem, and the best advice I can give them is to contact the appropriate law enforcement authorities to have other businesses investigated. 

Mr. CHERTOFF. That is actually great advice. Some of the biggest 

cases that we made, that resulted in convictions and fines, as well 

as locating a lot of illegal workers, have been based on tips. Therefore, I would encourage those who have specific facts that suggest 

there is illegal activity, they do report it to the authorities. 

Mr. GOODLATTE. Let me ask you a follow up to that. What is the 

probability that when a business does that, that the business that 

has been so identified will actually be prosecuted? 

Mr. CHERTOFF. Frankly, it frankly depends on how good the information is. The fact that you don’t like your competitor and you 

decide you are going to make an accusation is not necessarily going 

to resulting in a prosecution if there are no facts. But I can tell you 

we have a significant number of cases and obviously in those jurisdictions where local law enforcement participates in the 287(g) program, that is a force multiplier in terms of the ability to investigate 

these cases. 

Mr. GOODLATTE. And a follow up on that, what is the likelihood 

that the illegal aliens that have been hired in these circumstances 

will actually be deported if they do not have previous criminal 

records? We have had a problem with deportation proceedings 

other than for those who have committed serious crimes. If they 

have committed an minor offense or simply are illegally in the 

country, we don’t seem to get much action. 

Mr. CHERTOFF. I would say my experience in the last couple of 

years has been if we apprehend them, we will get them deported. 

Now, some of them do raise defenses or make asylum claims. Those 

generally are not successful. But I will also tell you that we are 

fighting a legal headwind because we do have a lot of groups that 

are resistant to the idea of deporting illegal workers and they will 

take whatever tool is available to slow up the process. But we are 

pretty good about deporting the vast majority of people that we apprehend in these kinds of operations. 

Mr. GOODLATTE. And are you getting increased cooperation from 

local law enforcement? Is your training program working to authorize them to detain those who are not legally in the country? 

Mr. CHERTOFF. Yes, we are. 

Mr. GOODLATTE. Should we expand that program? 

Mr. CHERTOFF. The budget for 2009 does seek additional funds 

to expand the program and I think it has worked well. I think 

frankly what they are doing, like the state of Arizona where they 

are using their business licensing law, reflects a very creative approach to incentivizing compliance on the part of employers. 

Mr. GOODLATTE. Thank you, Madam Chairman. 

41 

Ms. LOFGREN. The gentleman’s time has expired. 

I would recognize now the gentlelady from California, our colleague Congresswoman Waters. 

Ms. WATERS. Thank you very much. I wish we had more time. 

I thank you for being here, Mr. Secretary. 

We have a backlog of 145,250 applications in Los Angeles, and 

we have already been told that it is going to take until 2010 to get 

the backlog taken care of. I would like to have from you a report, 

if I may, Madam Chairwoman, to our Committee on what and how 

this backlog can be speeded up and how we can do better for people 

who are trying to do the right thing and who got in line. We want 

to make sure that we are not putting them at greater risk by not 

being able to process their application. 

So Madam Chair, if that could be an official request of this Committee? 

Ms. LOFGREN. We will officially request it, and I see the secretary is nodding his agreement to provide that report. 

Ms. WATERS. Thank you. 

Secondly, FEMA. We have families, I guess about 38,000 that are 

still living in formaldehyde trailers. The response that I have heard 

about when they will be removed and placed in safer living conditions has not been good or adequate. Have you ever thought about 

talking with the President about HUD and FEMA and others getting together and instead of continuing to spend money on trailers 

that are not safe, you have all the section 8 money, et cetera, et 

cetera. Why don’t you all just build some manufactured housing 

and put people in it? It has been almost 21⁄2 years now. Can’t you 

do this any better? 

Mr. CHERTOFF. I am delighted to answer that question, although 

I guess I have to reserve again to the Chair, and I think I owe this 

to my regular authorizers, that I think we are not in the normal 

scope of what I would imagine—— 

Ms. LOFGREN. We would note that this is beyond the scope of the 

Judiciary Committee, but it is an opportunity to—— 

Mr. CHERTOFF. I will answer the question. Let me say this. First 

of all, these are not formaldehyde trailers or FEMA trailers. These 

are trailers sold on the open market of the United States. We buy 

these and we bought these the same way every other American 

who has a trailer or a mobile homes buys them. 

Ms. WATERS. Do they have formaldehyde in them? 

Mr. CHERTOFF. Like every other trailer—— 

Ms. WATERS. Do they have formaldehyde in them? Then they are 

formaldehyde trailers. I don’t care who buys them. I don’t care who 

made them. 

Mr. CHERTOFF. Then every trailer and mobile home in the 

United States is a formaldehyde trailer. 

Ms. WATERS. I am talking about FEMA now. We have 38,000 

families in formaldehyde trailers. 

Mr. CHERTOFF. I am more than happy to answer the question, 

but I need to be given the opportunity—— 

Ms. WATERS. Well, I don’t want an excuse, sir. 

Mr. CHERTOFF. I am not giving you an excuse. I am giving 

you—— 

42 

Ms. WATERS. But I don’t care about others that I don’t have jurisdiction over. 

Mr. CHERTOFF. Well, I care about making a very clear and 

straight record about what the facts are. 

Ms. WATERS. Do you have formaldehyde? Has it been documented? 

Mr. SMITH. Madam Chair, I would like the witness to be able to 

answer the very good questions posed by the gentlewoman from 

California. 

Ms. LOFGREN. And I am sure the gentlelady would like to be answered. 

Ms. WATERS. I do not interfere with anybody else’s questions, 

and I don’t want anybody interfering with mine. 

Do you have formaldehyde in the trailers? 

Mr. CHERTOFF. In every trailer as far as I know that is on the 

open market, there is some formaldehyde. 

Ms. WATERS. I just want to know about the ones that FEMA has. 

Mr. CHERTOFF. Like with every other trailer. 

Ms. WATERS. Okay. FEMA has formaldehyde trailers. What are 

you going to do about it? 

Mr. CHERTOFF. What we are doing is this, and what we have 

done over the last year is this: We are using every means at our 

disposal to urge people to leave those trailers. If people are eligible 

for section 8 housing, and assuming again what the line is for that 

housing, because I don’t know that we can jump people ahead of 

the line, I would be more than happy to have them go there. The 

response we have often gotten is people don’t want to move where 

the section 8 housing is. 

Now, you might ask why don’t we build more section 8 housing 

in New Orleans? The answer is because there is litigation that is 

stopping HUD from doing that. So, therefore, they can’t build it because the courts are preventing it. I would love to see us deal with 

this issue, but between the legal tangles and the disagreements 

that individuals have about whether they want to leave the trailers, this has been a much slower process than I would like to have 

it be. 

Ms. WATERS. It is unconscionable, and it is shameful. 

I have to move on to another question. What is your plan to deal 

with gangmembers who are responsible for violence in the greater 

Los Angeles area, who go back and forth across the border and 

enter the country and leave after they have committed murders 

and other kinds of gang violence? 

Mr. CHERTOFF. First of all, I agree with you it is a big problem. 

Second, we have an operation underway where we have deported 

more than 3,000 gangmembers nationally. Regrettably, a number 

of them when they go back to their home country sneak back 

across the border again. That is exactly why we are building fences 

and getting border patrol and putting measures at the border. That 

is why we are working with the Mexican government because they 

are trying to tackle organized crime on their side of the border. 

I would agree with you that this issue of gangmembers and organized drug gangs is one of the biggest hemispheric issues we now 

face. One of the things we could do is we could fund the President’s 

MERIDA initiative, which would give Mexico additional law enVerDate Aug 31 2005 14:32 Sep 16, 2008 Jkt 000000 PO 00000 Frm 00046 Fmt 6633 Sfmt 6601 H:\WORK\FULL\030508\41082.000 HJUD1 PsN: 41082
43 

forcement support so they can effectively tackle the criminals that 

are on that side of the border. 

Ms. LOFGREN. The gentlelady’s time has expired. 

We turn now to the gentleman from Utah, Mr. Cannon. 

Mr. CANNON. Thank you, Madam Chair. 

And thanks for being here with us today, Mr. Secretary. 

May I just follow up on your last comment and say that what we 

are doing on our side of the border and how we are helping work 

with the Mexicans on their side of the border to combat the kind 

of crime and violence that is proliferating there I think is remarkably important. I appreciate your involvement. 

My state legislature just passed a bill that would direct the state 

attorney general to execute one of these 287(g) agreements that 

would allow for local enforcement in Utah. I have historically been 

a supporter of those agreements. We continue to have a problem 

with drug dealers coming from Mexico, but our U.S. attorneys have 

done a fairly good job of stanching that. 

Some years ago, we had a police chief named Ortega who wanted 

to do this. I was very supportive. We looked at it and decided in 

the city of Salt Lake that they would not do it, but now they are 

being directed. I would just like to hear from you what the implications of that are, if many states are directing their attorneys general to work with you. Are you going to be able to handle that? Are 

there things we could do to be more helpful in the process of combining local forces with your forces? 

Mr. CHERTOFF. First of all, we have asked for some more money 

in the 2009 budget to continue to increase this 287(g) process, but 

we also have something called ICE Access, which is what I would 

call 287(g) lite. It is a way we can even without additional money 

help enable local jurisdictions to assist us in enforcing the law, or 

at least know how to enforce these immigration laws. 

One of our main concerns is this. If we have people who are in 

custody in state and local jails, and local officials can begin the 

process of starting deportation procedures while they are in jail, we 

can essentially kill two birds with one stone. These people can 

serve their sentences and then we can tee it up so as soon as the 

sentence is over with, we can pick them up, stick them on an airplane, and send them back where they came from. 

So again, obviously it depends on getting the budget money for 

2009, but we want to continue to build on this and we want to encourage local communities in this respect. 

Mr. CANNON. But the problem with that is that local communities are not going to put these guys in jail. I had a mayor who 

called me enraged because an illegal alien who was driving drunk 

killed a couple of people in his town, and then the end of the discussion was you have a choice. You can prosecute him and put him 

in jail for the crimes he has committed in your jurisdiction, or you 

can turn him over to ICE, in which case they will prosecute the 

crime they have jurisdiction over, which will result in deportation. 

And he yelled at me, ‘‘then he will be right back next week.’’ And 

so we have this dilemma of whether or not we put them in jail, but 

putting people in jail costs money. 

Mr. CHERTOFF. It is a worse dilemma. Sending him back costs 

money. It would probably amaze people to reflect upon the fact that 

44 

in many instances we have to pay air fares to deport people back 

to their home country. 

Mr. CANNON. But with all due respect, that is Federal money and 

not coming out of the city coffer. 

Mr. CHERTOFF. Speaking as a taxpayer for a minute, it all comes 

out of the same pocket eventually, which is the pocket of the taxpayer. 

I couldn’t agree more, the solution here is to focus our attention 

on making it very difficult, if not impossible, for criminals to get 

back across the border. 

Mr. CANNON. I am sitting here with Mr. King in front of me, and 

Mr. King made a statement on the floor a few months ago which 

startled me, and I came up, and he said that we had only built 

131⁄2 miles of fence. Now, Mr. King and you and I were on the border about a year ago, and we saw a lot of fence going up. Mr. King 

said that only 131⁄2 miles of fence had been built, and I said, where 

did you get that number, Mr. King? And he emailed his office, 

checked with his Texas office, and said ‘‘I got it from DHS.’’ And 

then I had my staff call DHS, and we got the same number, 131⁄2

miles of fence, which I knew, and I think Steve probably agrees, 

was not the number of miles actually built. 

Mr. CHERTOFF. Wherever that came from, it has been corrected. 

We are up to 304 or 305 miles. 

Mr. CANNON. That is a lot more fence. Thank you for the correction. We sent you a letter suggesting that you put cameras on the 

border so that people could see what was happening, or put maps 

on the Internet so people could see where the fence was built, when 

it was built, and what is being built currently. There is a lot of antagonism on this point. Can we just give some information about 

it? 

Mr. CHERTOFF. That is actually a great idea. 

Mr. CANNON. Thank you. Ask the underlings who got the letter 

and didn’t respond, about what happened to it. 

Mr. CHERTOFF. Obviously, we don’t want to reveal things that 

are going to allow bad people to know what we are doing, but I 

think we could at least in general terms maybe put on the Web a 

tracker of what we do in terms of miles of fencing and things of 

that sort. That might be a very interesting and useful thing to do. 

Mr. CANNON. I have a bunch more questions, but I note that my 

time is up. 

Ms. LOFGREN. Your time has expired. 

Mr. CANNON. There is always too little time for this sort of thing, 

so I yield back what doesn’t remain. Thank you. 

Ms. LOFGREN. Thank you. 

The gentlelady from California, Ms. Sa ́nchez, is recognized for 5 

minutes. 

Ms. SA ́ NCHEZ. Thank you, Ms. Chairman. 

Secretary Chertoff, over the last 7 years, the detention of immigrants, including the detention of children, has risen. A 2005 

House Appropriations Committee report concluded that children 

should not be placed in government custody unless their welfare 

was in question and specified that DHS should release families or 

use alternatives to detention wherever possible. 

45 

Instead of following the Committee’s recommendations, DHS has 

chosen to incarcerate children, including those of asylum seekers, 

in former prisons such as the Hutto Center in Texas. This is the 

first time, I will note, since the internment of Japanese Americans 

during World War II that families with children are being incarcerated by the U.S. government. Why has DHS resorted to incarcerating children, including those whose parents have suffered persecution in their home countries? 

Mr. CHERTOFF. Well, first of all, if somebody has a legitimate 

claim of asylum, almost invariably they are released. Now, a lot of 

people claim asylum that don’t have a legitimate claim of asylum. 

It is easy to claim it. It is not so easy to substantiate. So the fact 

that someone has claimed that they are entitled to asylum, if they 

have been turned down, does not make them a legitimate refugee. 

It just means that they have made a claim that has been rejected. 

Ms. SA ́ NCHEZ. I understand that, but my concern is that the recommendation is that they use alternatives to detention for children 

wherever possible, and it appears that does not seem to be happening. 

Mr. CHERTOFF. There really is not a practical alternative in most 

cases, because what happens is, and we actually saw this happen 

at the border, the word got out very quickly that if people pretended to be a family group, they would get released, and then they 

wouldn’t show up again for court. We get a two-thirds or threequarters absconder rate. These are people who defy court orders to 

appear. So is it like any other system that requires people to play 

by the rules. 

Ms. SA ́ NCHEZ. I understand that, but we are talking about instances in which these are in fact families and there are in fact 

children that are being detained, and I am curious to know, and 

it sounds like basically from what you are telling me, that there 

is a plan to continue to incarcerate families with children. My question is, will these families with children continue to be detained in 

facilities, in Hutto, or whether they be in Bucks County, Pennsylvania? 

Mr. CHERTOFF. Well, we use both. Hutto has been re-constructed 

or rehabilitated so that I think now even those who were originally 

critical of the physical setting have acknowledged that it is maybe 

family-friendly overstates it, but it is appropriate for families. 

By the way, the reason that children are kept there is the old 

process was we separated children from their parents. The parents 

were incarcerated in one facility and the children were sent somewhere else because they obviously couldn’t be left on their own. 

This has I think the better approach of keeping the families together in a more appropriate facility. 

Ms. SA ́ NCHEZ. I would agree that keeping families together is 

probably the best option. But last year, DHS was sued for the deplorable conditions at the Hutto facility, including inadequate sanitation and a lack of an immunization program, and that was discovered because chicken pox had broken out in the facility. 

Some of the guards’ practices at that facility included confining 

children to their cells for 12 hours a day without crayons or anything to do, refusing to allow children to use the rest room at 

times, waking them up in the middle of the night by shining lights 

46 

at them, and threatening to separate them from their parents if 

they misbehaved. I am just wondering if you think that that is an 

acceptable way to treat children at these facilities? 

Mr. CHERTOFF. Again, I can’t validate whether those allegations 

are true or not true, but I do know that eventually this was resolved to the satisfaction of the plaintiffs and everybody else. My 

understanding is, obviously people would prefer not to be apprehended, but that the people who originally complained, the lawsuit 

has been resolved and settled and everybody seems satisfied. 

Ms. SA ́ NCHEZ. Let me ask you this. Prior to that litigation, was 

DHS inspecting the facility on a regular basis? 

Mr. CHERTOFF. Yes, it was. It was. 

Ms. SA ́ NCHEZ. And yet they weren’t catching these practices? 

Mr. CHERTOFF. All I can tell you, congresswoman, is I don’t know 

which of these are accurate allegations, it is not in my experience. 

Sometimes allegations are exaggerated in this kind of a case. I 

can’t judge because I wasn’t there. We do inspect. 

Ms. SA ́ NCHEZ. Ultimately, you and the Department are responsible for the conditions. 

Mr. CHERTOFF. And ultimately it got resolved to everybody’s satisfaction. 

Ms. SA ́ NCHEZ. My last question is, DHS has entered into more 

and more contracts with private companies, including Corrections 

Corporation of America, to incarcerate immigrants and CCA runs 

some of the facilities in the worst conditions, including the facilities 

at Hutto and San Diego. Do you think that private prisons are less 

accountable than public prisons about their daily operations? 

Mr. CHERTOFF. No. One of the reasons we contract out is because 

our need for bed space fluctuates depending on conditions in particular parts of the country. There is no point in us building Federal facilities that will be vacant. That would be a waste of the taxpayers’ money. Sometimes we contract with local county and state 

facilities. Sometimes those entities themselves contract with private facilities. 

I think that they are held to certain standards contractually 

under their requirements. I think, for example, Hutto now has actually cured some of the issues that were complained about. 

Ms. LOFGREN. The gentlelady’s time has expired. 

I recognize the gentleman from California, Mr. Issa, for 5 minutes. 

Mr. ISSA. I thank the Chair. 

Just like my predecessor here in questioning, I will run out of 

time before I run out of questions, but I would like to first of all 

ask, the array of dark-and light-haired people behind you, are most 

of them political appointees? 

Mr. CHERTOFF. Probably some are and some aren’t. I have a 

Coast Guard captain behind me who is my military aide. I have the 

leg affairs people, and some of them are and some of them are not. 

We have some career people from CIS. 

Mr. ISSA. So these people, the majority of them apparently, got 

to the positions they are and are reportable to you because on a 

merit basis, they rose to the top of their selected areas. 

47 

Mr. CHERTOFF. That is exactly right. And during my tenure, we 

have both in the political and in the career path, elevated a very 

diverse group of people to leadership positions in the Department. 

Mr. ISSA. I want to commend you on that, and I want to obviously at the right time and right place look into that further as appropriate. I certainly don’t want this hearing to appear as though 

we are disparaging people who through 15, 20, 30 years of service 

have risen to these positions, that somehow because of the color of 

their skin, their merit is diminished. I don’t think Congress meant 

to say, and I don’t think the previous people meant to say that. 

As political appointees, as a Member of Congress, I have political 

appointees. My entire staff is at my whim, and I appreciate that 

they may be disproportionately home state or in some other way 

similar to my politics. But for those who serve not at the whims 

of the President, it is gratifying to see that in fact merit matters. 

I don’t want to dwell on the issues that we have dealt with in 

other Committees long, but isn’t it true that the vast majority of 

the people 21⁄2 years later still in trailers, are in fact not reporting 

problems with formaldehyde? That that was, although regrettable, 

not 100 percent, and that even in the hearings that you, of course, 

were made aware of, many people when finding an unacceptable 

trailer, got a second trailer and it was acceptable. Isn’t that true? 

Mr. CHERTOFF. Well, yes. And what is true is, there was a range 

of findings, and I can’t tell you that these are out of line with what 

you find in the industry in general. What I can tell you is last summer I and the head of FEMA announced to everybody, if you don’t 

want to be in a trailer, we will move you to someplace else. We 

begged people to leave trailers. People resisted leaving trailers. We 

are trying even harder to get them out of trailers. Some of them 

don’t want to leave their trailers. 

Mr. ISSA. Just start charging them rent. It will change their 

tune. 

Mr. CHERTOFF. You know, some people, and particularly those 

who are in trailers on their personal property, have reasons to 

want to stay. I can’t tell you there is no medically safe level. For 

all I know, there is formaldehyde in this room. Maybe I should be 

asking that it be tested before I come into testify. 

All I can tell you is I think it is well past due to get people out 

of this temporary housing, and we are working very hard to do it. 

Mr. ISSA. I appreciate that. If you don’t mind, to the extent that 

you have information that can be readily made available to the 

gentlelady from California and to myself, because I serve on the 

Committee that has been looking into this, the measures you are 

taking going forward in purchasing in the future would be appreciated. Because our hearings didn’t just show formaldehyde. Obviously, they showed a propensity for mold and mildew and other 

things, which I was not shocked to find out you have in Louisiana. 

Mr. CHERTOFF. I will tell you, I have announced that we are not 

buying trailers anymore. So that is going to take care of that problem. The issue of mobile homes is more complex, and I might add, 

many people in the United States live in mobile homes. So I suggest that Congress carefully study the implications of this issue as 

we move forward. 

48 

Mr. ISSA. Just two more questions. The first is, I am sure you 

are aware that the new U.S. attorney in San Diego has done a 

huge about-face and is doing prosecutions of coyotes in large numbers to help with the border enforcement effort. How is that impacting border security in the San Diego area where I represent? 

The second one is more complex, and I think it directly goes to 

this Committee’s various works over the years. Many people who 

are in the process of gaining citizenship complain about two problems. One is, sometimes unaware and sometimes perhaps aware, 

they leave the country for a period of time that is outside of the 

current rules that Congress has set. That then catch-22s them 

when they go to apply and they essentially re-set for another 7 

years. 

If Congress took action to allow greater flexibility in the process 

for departure from the U.S. that is not inherently contrary to their 

intent to become valid U.S. citizens, would that help you? That 

would be action that this Committee I believe would have to take 

to move it up. 

Last but not least, if we authorized a period of time prior to full 

qualification for the citizenship application so that you had, let’s 

say, an extra 2 years before their statutory period in which they 

can become citizens—in other words, we moved up the application 

date earlier than the allowing date—would that also make your job 

more effective? I realize I am giving you three questions. Some of 

them you may have to answer for the record. 

Ms. LOFGREN. And the gentleman’s time has expired, so a very 

prompt response would be necessary. 

Mr. CHERTOFF [continuing]. Prosecutions are enormously helpful. 

They have a very, very good deterrent impact. I am pleased that 

we are getting more of those. 

Generally speaking, if we have an ability to work with Congress 

to clean up some of the anomalies, we would welcome the opportunity to do that. You always have to be careful about unintended 

consequences, but I think we would welcome it. We are living with 

some of the unfairnesses that are unintended consequences of prior 

reforms, and if we could clean those up, I think it would help everybody. 

Mr. ISSA. Thank you. 

And I thank the gentlelady, who I know is very interested in 

working on those issues. 

Ms. LOFGREN. I thank the gentleman, and I hope that we can follow up on a bipartisan basis and do some improvements on the existing immigration laws that in some cases are a little irrational. 

I recognize now Mr. Cohen, the gentleman from Tennessee. 

Mr. COHEN. Thank you, Madam Chair. 

Mr. Secretary, on the 29th of January, a letter was addressed to 

you by four Members of this Congress—Mr. Smith, Ms. Horono, 

Mr. Johnson and myself—expressing concerns about the REAL ID 

law—privacy issues, cost issues, and just the basis of the arbitrary 

date chosen, May 11, to punish states that haven’t fallen in line 

with the requests of the Federal Government. We have not received 

a response to this letter. Are you familiar with the letter? Or 

should we blame the postal authorities? 

49 

Mr. CHERTOFF. I am sure that there is a response being worked 

on because we have gotten much better at turning these around 

more quickly. But I am certainly familiar with the issue, and I can 

tell you, as we publicly announced, we cut the cost of this program 

by three-quarters. 

Mr. COHEN. Let me ask you, before you go on, are you sure a response is being prepared? This has been 11⁄2 months. Is 11⁄2 months 

the time that you are considering better? Does one of your staff 

members know about this letter? One of the gentlemen does know. 

Mr. CHERTOFF. It depends when it arrived. 

Mr. COHEN. Can this gentleman tell us if the letter is being responded to? 

Mr. CHERTOFF. I don’t know that he is in a position to tell us. 

Mr. COHEN. He seems to think he is. 

Mr. CHERTOFF. I am going to lay down the law here. If a staff 

member is to be called to testify, they should sit at the table and 

be asked to testify. I am not going to have everybody I bring into 

a hearing room subject to questioning. I spent too many years in 

a courtroom to let that kind of thing go on. 

Ms. LOFGREN. The witness is correct. He is the witness and the 

questions do need to be directed to him. Mr. Cohen, if you 

would—— 

Mr. COHEN. Thank you, Madam Chair. 

He may be correct, but when you don’t answer a letter from four 

Members of Congress in 11⁄2 months, there is a problem. 

Mr. CHERTOFF. Well, I don’t know when the letter arrived, but 

I would say certainly we try to turn the answers around within 30 

days. So if it was sent on January 29, by my calculations—— 

Mr. COHEN. January 23. 

Mr. CHERTOFF. By my calculation, depending on when it got to 

the Department, we may be slightly over 30 days, but I don’t think 

we are much over 30 days. 

Mr. COHEN. Why did you pick May 11 as your date? 

Mr. CHERTOFF. I think it is in the statute. 

Mr. COHEN. You think it is in the statute. 

Mr. CHERTOFF. Yes, I think it is. 

Mr. COHEN. If I am correct, it is not, but I may be wrong. Does 

anybody here know if that is in the statute? 

Mr. CHERTOFF. I believe it is. I could double-check it. I think it 

is a statutory deadline. I think it is based on when the original bill 

was passed or whatever. 

Mr. COHEN. The REAL ID law has certain issues concerning privacy. Have those issues been addressed since it was passed? 

Mr. CHERTOFF. I believe they have, and I believe the system we 

have worked out actually increases the privacy protection. This will 

actually be a net-positive for privacy of American citizens compared 

to where we are now. 

Mr. COHEN. I have a lot of questions to ask, Madam Chair, but 

I would like to ask the secretary if he would consult with his staff 

and you can answer the question, if you would be so kind, but if 

your staff member who has come here has the answer to whether 

or not that letter is being responded to, I think it would be pertinent. 

Mr. CHERTOFF. All right. If you will excuse me—— 

50 

Ms. LOFGREN. We certainly will excuse the secretary to consult 

with his staff. 

Mr. CHERTOFF. Here is what I am informed. I am informed that 

it arrived on the 31st and I believe the answer was signed out 

today. 

Mr. COHEN. Thank you, and I look forward to the response. 

Let me ask you this, sir. One of the issues and areas of your jurisdiction is to minimize the damage and assist in the recovery 

from a terrorist attack. I know that public hospitals is not under 

your jurisdiction, however our public hospital system is in great 

danger. 

Mine in Memphis, Tennessee, the Med, and most public hospitals 

throughout this country are not well funded. Have you thought 

about the need for Homeland Security to have funding possibly 

through Homeland Security to help see that we have a series of 

public hospitals that could be available in case of a terrorist attack? 

Mr. CHERTOFF. I agree with you that an important part of not 

just a terrorist attack, but a natural hazard like the tornadoes we 

had in your area, which I was at a few weeks ago, or a pandemic 

flu, does require surge capability from the public hospital system. 

That is in the domain of HHS. I wouldn’t want give a Department 

response for doling that money out because it is not our expertise 

area. But I agree that has to be part of the general plan. 

Ms. LOFGREN. The gentleman’s time has expired. 

Mr. COHEN. Thank you. 

Ms. LOFGREN. I would remind Members that the best questions 

would be for those that are within the Committee’s jurisdiction and 

within the Department’s jurisdiction. 

Mr. Pence is now recognized for 5 minutes. 

Mr. PENCE. Thank you, Chairman. 

I want to thank the secretary for being here. I want to thank you 

for your service to the country. My little family sleeps a little better 

at night because you are the head of the Department of Homeland 

Security, and I mean that very sincerely. And I think that is a bipartisan view on Capitol Hill. 

Mr. CHERTOFF. Thank you. I appreciate that. 

Mr. PENCE. I am going to bring up a topic that I think, I wasn’t 

here for the Ranking Member’s remarks or the Chairman’s, so I 

want to defer to them, but I haven’t heard other colleagues bring 

up this issue. We have talked about some pretty interesting topics 

in this hearing so far. I would like to talk about terrorism, the 

threat of terrorism, and the threat of a terrorist attack on the 

United States of America, which if memory serves, is why we created this Department. 

I know that you and I have worked together on issues about immigration reform. Border security falls within the purview of the 

Department. That is important. It is something of an object lesson 

for me to see the secretary of a Department that was created to 

focus on protecting us from another 9/11 being questioned appropriately—and Members of Congress can question you on any 

topic—being questioned just the way any other Department head 

would be questioned. 

51 

This kind of confirms my limited government views and my general view of bureaucracy as a whole. I would like to focus you on 

that particularly, Mr. Secretary. I was in the Kunar Province of Afghanistan about 36 hours ago. I met with President Karzai. I met 

with our commanders down-range in Afghanistan and Iraq. There 

is extraordinary progress in Iraq, as you know well, with 60 percent reduction in violence in Baghdad and all over the country actually. 

But my sense is that we are having a great deal of success, particularly in Iraq, driving terrorists and insurgent and al-Qaida elements out of the center part of the country. Mosul appears to be 

still a focal point and a problem. I was there Sunday in Iraq when 

President Ahmadinejad arrived and articulated almost Washington-like talking points, saying that America needs to get out of 

Iraq. It certainly would be in his interest if America was not in 

Iraq. 

I guess my question to you is, as someone who I respect more 

than anyone other than the President on these topics, is the threat 

of a spring counteroffensive in Afghanistan that is very real. The 

progress that, other than by the political class, is not being denied 

by anyone, including the pages of the New York Times, how does 

that impact our threat assessment here? 

It does strike me, and in Indiana we identify with the view that 

if we are fighting them there, we are probably not going to have 

to fight them here. But the thought does occur, as we succeed 

there, is there a concern in your good offices that al-Qaida and its 

patrons in places like Syria and Iran, growing frustrated with their 

ability to project force in that region, may be more motivated to 

project violence here. 

I know that is somewhat counterintuitive. Some of us are celebrating the progress of stability and security and political progress 

in Iraq, and others are denying it. But regardless of that, you want 

to be pleased about that, but it struck me that we have a lethal 

enemy who desires to do us harm. 

We are driving them from the center of the central front in the 

war on terror, which is Baghdad. Does that create in your mind a 

greater possibility of threats against U.S. interests abroad, embassies—the USS Cole comes to mind as a type of incident about 

which we should be concerned. And of course, here at home. 

Mr. CHERTOFF. You know, I don’t want to take up the whole 

hearing on this. Let me give you three brief points in answer to 

that question. The first is I think that there has never been a drop 

in the determination and the intent of the enemy to attack us here 

at the homeland. That is still to al-Qaida, in my view, that is the 

home run, the number one thing they want to do. 

The second point is they have not succeeded in doing it since 9/ 

11, largely because of the strategies we have undertaken: (A) to 

fight them over there, to put them off balance and to keep them 

focused on their near-term problems; and second, because of the 

steps we have taken to make it harder to get into this country and 

carry out an attack. Of course, you see attacks and efforts in Europe, which reminds us that there is still an intent, and it is certainly not that they have decided they like the United States. So 

it is what we have done to defend ourselves. 

52 

Ms. LOFGREN. The gentleman’s time has expired, so if we could 

just wrap up. 

Mr. CHERTOFF. The third piece is this. I think it is terribly important to recognize that we are having a success in Iraq which is 

under-noticed. Al-Qaida in Iraq is really on the ropes and it has 

been the people that they thought were their constituency that 

have turned on them. That is a huge embarrassment and a problem for al-Qaida in general, because they are having trouble explaining why, if they have the wind at their back and they are the 

wave of the future, why their own people are rejecting them. That 

ultimately, in my view, makes us safer. 

Mr. PENCE. Great. 

Ms. LOFGREN. The gentleman from Massachusetts, Mr. 

Delahunt, is recognized. 

Mr. DELAHUNT. Thank you, Madam Chair. 

Mr. Secretary, how many al-Qaida in Iraq, I hear varying estimates in terms of numbers, anywhere from 800 to 2,000. Give us 

your number. 

Mr. CHERTOFF. I didn’t come prepared, since we kind of got completely off the topic of immigration. 

Mr. DELAHUNT. I am going to get back—— 

Mr. CHERTOFF. I can’t say I came prepared with a number. I 

don’t think it is arguable, however—and they pretty much admitted it—that they are suffering reverses and that the so-called 

‘‘awakening’’ or the Sunni tribes have really turned on them. Not 

that they are done, not that they out of—— 

Mr. DELAHUNT. A number, I would appreciate—a guess. 

Mr. CHERTOFF. I wouldn’t do that—— 

Mr. DELAHUNT. Okay. Let me talk about the same subject, terrorism and threats, and when we make mistakes, because we want 

to take steps so that we ensure that we don’t make those mistakes 

again. Congressman Nadler indicated earlier that he and I have an 

interest in this case of Meher Arar. I would like to go through the 

facts as I know them, and end with a question and a request to 

you. 

My understanding is on September 22, 2000, Mr. Arar flew from 

Deir ez-Zor to Montreal with a stopover at JFK. He was on his way 

back to Montreal. He was detained and interrogated for hours by 

New York police, along with the FBI, and detained in a cell. He 

was then sent to a detention facility in Brooklyn, where he was 

also interrogated for hours. An INS official informed him that they 

would like him to voluntarily return to Syria. He said no, he wanted to on to Canada, where he was a citizen. When he asked for an 

attorney, he was told that he had no right to an attorney. 

On September 28, he was given a document saying he is inadmissible under section 235 because he was a member of al-Qaida. 

He continued to ask for an attorney and a phone call, but his requests were denied. On October 2, he was permitted a 2-minute 

phone call to his mother-in-law in Ottawa, and he told her that he 

was afraid that they were going to send him to Syria. On October 

4, he had a visit from the Canadian consul. He told her that he is 

frightened that he will be deported to Syria. She reassured him 

that that would not happen. 

53 

On October 6, he was asked why he does not want to go to Syria, 

and he responded that he was afraid that he would be tortured 

there because he didn’t do his military service before leaving Syria 

when he was a teenager, and that he is a Sunni. On October 8, he 

is read a document saying that they decided, based on classified information, that they think he is a member of al-Qaida and that the 

INS director has decided to send him to Syria. He protested, saying 

that he will be tortured there, but that is again ignored. 

What I would request from you, and Chairman Nadler indicated 

earlier, that we forwarded a letter to you. But what I would request from you is not classified information, but simply how the decision was reached to send him to Syria, rather than Canada. 

Maybe you have information at your disposal here. I don’t presume 

you do. But I would appreciate your personal review and a commitment from you, without disclosing any information that is classified, as to why the decision to Syria rather than Canada. 

Mr. CHERTOFF. I think there is an inspector general report in the 

works on this, because I think it was requested. I don’t know if it 

has been finalized or not. I think that is probably going to be the 

definitive investigative conclusion—— 

Mr. DELAHUNT. There is an inspector general’s report, in my understanding, but portions of it are classified. What I am looking for 

is something very discreet and specific: Why Syria rather than 

Canada? 

Mr. CHERTOFF. I think what I am going to have to do is, and obviously you can see the classified portions. 

Mr. DELAHUNT. I have not seen them, no. 

Mr. CHERTOFF. And I don’t control the IG’s releasing this, but I 

presume he will show you the classified portions. 

Ms. LOFGREN. The gentleman’s time has expired. 

Mr. CHERTOFF. Again, I have to assume the answer to the question is in that report. I could have someone read the report and extract it for you, or direct you to the pages, but I think we are ultimately going to wind up taking you back to that report as the investigative finding. 

Ms. LOFGREN. If I may, I think the request is straightforward 

and if you could respond subsequent to the hearing, that would be 

appropriate. 

The gentleman from Iowa, the Ranking Member of the Immigration Subcommittee, is recognized for 5 minutes. 

Mr. KING. Thank you, Madam Chair. 

Mr. Secretary, I appreciate your testimony. I would point out 

that you have gone down and done hands-on fence construction on 

the border, and I have watched you weld a bead on a vertical landing mat. So thank you for the hands-on portion of this. 

On that fencing, just quickly, I want to touch a clarification. The 

data that I have from your Department is dated February 6 on 

fence construction. It concurs with your testimony, and I am looking at that data now. It says primary pedestrian fence, 167.5 miles, 

identical to your testimony. Secondary fencing, I don’t think you 

were specific on that, says 31 miles. And then tertiary fencing, the 

triple-fencing, says seven miles as of February 6. Tertiary fencing, 

even though that may be the dinosaur era, means triple-fencing. 

54 

I wanted to ask you, as we looked at that fence down there in 

San Luis south of Yuma, I asked the question there, if the triplefencing had been defeated by anyone at that time? And the answer 

I received from yourself and Chief Aguilar was no, not at that 

point. Are you aware of any case where triple-fencing has been defeated? 

Mr. CHERTOFF. No. But as I said earlier in response to a question, I think a lot of times anything can be defeated. The question 

is, it is like a car, they look for the car that is easiest to break into. 

So they will move along the border and as we build up in other 

parts, they are going to come back and take another run. But the 

key is that the Border Patrol is in the area, so it is not—— 

If we left it alone, people would get over it. What it does is it 

slows you up, so we can get there with the Border Patrol, and in 

an urban area where the Border Patrol is posted, that gives us the 

ability to get people before they vanish into the town, which is 

what we are concerned about. 

Mr. KING. So statistically, though, I understand they are not 

going to go through the most difficult portion, and triple-fencing is 

the most difficult portion, and as we continue to build that out, it 

raises the transaction costs of coming into the United States. It 

gets more difficult, and that is the value of it, in my estimation. 

I know that the number of interdictions on the border has 

dropped over the last year. The previous year, if I remember right, 

was 1,188,000. I think the year before was 1,157,000, and you are 

about 880,000. I recognize that you view that as less border attempts meaning less interdictions, but I will point out that we have 

Border Patrol testimony before the Immigration Subcommittee in 

this room that has testified that they think they stop one-fourth to 

one-third of the attempted border crossings. I ask if you could comment on that. 

Mr. CHERTOFF. I have actually heard a different figure. The figure that I have heard is that basically we think we apprehend two 

for every one that gets in. I have asked the question about the 

metrics which show about a 20 percent decrease. They look at some 

collateral issues, too. They look at what is going on south of the 

border in terms of staging areas. They do some validation by, if you 

can believe it, literally counting the footsteps in certain areas. 

So I am always careful to say the 20 percent drop is not a precise 

figure, but I think it is pretty indicative of the fact there has been 

a positive movement. 

Mr. KING. If I could say I have been along that border a number 

of times, and I have passed by those footsteps without them stopping to count either, so there could well be a number that is higher 

than that. 

But I wanted to go to the E-Verify portion of this. It hangs in 

front of this Congress to be addressed for reauthorization by fall. 

The progress has been made there of new employees that are legal 

to work in the United States, 99.4 percent effectiveness; 99.9 percent of native-born workers are authorized immediately; and the 

longest delay I can create in that is 6 seconds. So ‘‘immediately’’ 

is within that period of time. 

55 

I am going to ask you if you will support reauthorizing E-Verify 

to make it permanent, and also to allow employers to utilize it for 

current employees as well as new employees. 

Mr. CHERTOFF. Yes, I think we would support that. Obviously, 

we have to look at the details of the specific legislation, but I think 

the program has not only proven itself to be effective, but employers want it. That is why they are signing up. That is the best test 

of success, the marketplace. 

Mr. KING. Thank you. 

And then my concluding question is this, and it reflects off of 

what Mr. Pence raised from a national security standpoint. We 

have had persons of interest from nations of interest that have 

been interdicted on all of our borders and our ports of entry, but 

in particular with our southern border where we have a lot of traffic across that. 

Can you inform this Committee, if it is unclassified, the numbers 

of persons who are persons of interest from nations of interest who 

have been interdicted at the border, that number since September 

11? 

Mr. CHERTOFF. I can probably supply you with the answer, but 

I need to make one thing clear. ‘‘Persons of interest’’ is different 

than ‘‘nations of interest.’’ ‘‘Nations of interest’’ simply means a nation that has been associated with terrorist activities or training. 

It does not mean necessarily that, and in fact in the vast majority 

of cases, it doesn’t mean that the individual is suspected of being 

a terrorist. 

Ms. LOFGREN. The gentleman’s time has expired. 

Mr. CHERTOFF. But with that caveat, we can probably get you 

that information. 

Ms. LOFGREN. The request is for later information. I am advised 

that we are going to have a vote in about 10 minutes, so I am going 

to ask people to—— 

Mr. KING. Madam Chair, if I could just ask your indulgence. I 

think the gentleman was within 10 seconds of prepared to give me 

that answer. 

Ms. LOFGREN. I thought he was going to respond later. 

Mr. CHERTOFF. With that caveat, we can provide the number. I 

don’t have it off the top of my head. 

Mr. KING. Fine, thank you. 

Ms. LOFGREN. The gentleman from Georgia, Mr. Johnson, is recognized for 5 minutes. 

Mr. JOHNSON. Thank you, Madam Chair. 

Secretary Chertoff, one of the functions of the Department of 

Homeland Security is the Transportation Security Administration, 

under whose authority employees are hired at various airports 

throughout the land to provide baggage screening. These employees 

are on the front line in this war against terrorism to make sure 

that we don’t have another 9/11 scenario unfold with the use of 

planes as offensive weapons for terrorist purposes. What they do is 

screen baggage. 

Mr. Secretary, I have had an opportunity to tour first-hand the 

security screening facilities at my hometown airport, which is Atlanta’s Hartsfield-Jackson Airport, the busiest airport in the NaVerDate Aug 31 2005 14:32 Sep 16, 2008 Jkt 000000 PO 00000 Frm 00059 Fmt 6633 Sfmt 6601 H:\WORK\FULL\030508\41082.000 HJUD1 PsN: 41082
56 

tion and the world. I think by and large the employees out there 

are doing an excellent job. 

However, they do complain about employment conditions out 

there. They complain of a culture of favoritism, a culture of racism 

and sexism in the areas of job assignments and promotions. They 

complain of harassment when they speak out about job conditions 

that make the job more difficult. 

They have problems with the performance accountability and 

standards system which is supposed to be a standardized employee 

evaluation and promotion system, which they say is being inconsistently and arbitrarily applied. It is biased against non-management employees. They talk about being unable to get the pay raises 

for which they have received promotions into job which call for pay 

raises. 

They talk of problems on the job with on-the-job injuries because 

they are having to pick up large bags for screening purposes. They 

talk about lost paperwork on their workers comp compensation 

claims, and they also talk about a lack of light-duty jobs that they 

can perform when they are medically in line for light-duty jobs, and 

there are no light-duty jobs to be performed and then they end up 

losing their jobs. They talk about having to pay for parking, and 

parking at the airport is a tremendous expense. 

So basically, a decline in morale, a bad staff morale at the airport in Atlanta, even though they try to do as best a job as they 

can to keep Americans safe. 

My question, sir, is are the working conditions and security environment at the Atlanta Hartsfield-Jackson Airport better or worse 

than that of airports throughout the country? 

Mr. CHERTOFF. I am not particularly familiar with Atlanta 

Hartsfield. I have actually visited with screeners at airports all 

over the country. I can tell you that the administrator of TSA, Kip 

Hawley, spends a great deal of time focused on the issue of morale. 

First of all, we all agree the screeners do a remarkable job under 

very difficult circumstances, not least because of the congestion 

with air travel—airports are not necessarily happy places for passengers these days. Some of the things he is doing is this. He is 

broadening and expanding the career path for TSA screeners. 

Mr. JOHNSON. These are Federal employees, too, are they not? 

Mr. CHERTOFF. Correct. He is talking about, for example, allowing them to specialize and take training in behavioral detection 

techniques, document and verification checking techniques. This 

has a couple of positive benefits. First of all, it opens up the idea 

of being a screener as a career path where you advance, rather 

than stay where you are. 

Mr. JOHNSON. These employees certainly look at this job as a 

place where they should be able to advance, and they are motivated to advance, but they feel that the apparatus and the process 

that is in place for advancement is not working. I would implore 

you to take a look at it. 

Mr. CHERTOFF. I certainly will, and I will raise it with Administrator Hawley. 

Mr. JOHNSON. All right. Thank you so much. 

I yield back. 

Ms. LOFGREN. The gentleman yields back. 

57 

I recognize the gentleman from Florida, Mr. Feeney, for 5 minutes. 

Mr. FEENEY. Thank you, Madam Chairperson. 

Secretary Chertoff, Florida is a great tourism state. One of our 

concerns is the visa waiver program and other ways that people 

come legally to the United States. Recently, America has been 

branded widely throughout the world as the least attractive place 

to travel because of hassles and security issues. 

I wonder if at some point in the near future you could give us 

a report of how you are accommodating the need for enhanced security since September 11, but also facilitating actual reasonable 

ways for people that are here. It is not just tourism, it is international businesses that are deciding where to locate their business, and increasingly America is an unattractive place to do business. We are holding up businessmen and tourists from London, 

while our border goes unsecured. 

Would you be willing to get an updated to myself? I know Congressman Keller is interested and probably other Members of the 

Committee. 

Mr. CHERTOFF. Yes, we can send you something that will explain 

what our approach here is. I agree with you. The good news is we 

keep refining our procedures so we are more able to focus on the 

people we want to keep out and less hindrance to the people who 

are legitimate travelers. 

Mr. FEENEY. It is a two-pronged effort. Number one, we have to 

have reasonable access for people with legitimate purposes coming 

here. And number two, then private sector tourism folks want to 

go out and spread the word that we are no longer the problem we 

used to be. 

Mr. CHERTOFF. Yes, I am glad to do that. 

Mr. FEENEY. But we have to make sure we have the problem on 

the front end fixed before we start bragging about having fixed it. 

Secondly, I want to add my comments. I was out for my leisurely 

4-mile run this morning when I listened to the same radio show. 

Prince William County has spent $26 million of its own money trying in part to apprehend and then put behind bars, until you guys 

can come pick them up, illegals. The mission statement for your 

Department says we will lead the unified national effort to secure 

America. And it goes on to say later that we will ensure safe and 

secure borders. 

It is hardly a unified effort if the locals that are trying to do enforcement—and this is happening in various ways throughout the 

country. People are terribly frustrated at the Federal Government’s 

real and perceived failure to do its job to secure our borders. I 

think it is a horrible message. If we can’t go pick up four guys that 

have been apprehended thanks to the extraordinary efforts of law 

enforcement, I am really disappointed. I want to echo Congressman 

Sensenbrenner’s comments. 

With respect to the border, Secretary Chertoff, a few years ago, 

I have to tell you. I came to Congress as an agnostic on immigration. There are some great things about immigration—the shining 

city on the hill, opportunity for people, the relatively inexpensive 

labor. There are a lot of industries and we just can’t find employees. I recognize all that. 

58 

But after 9/11 and the huge burdens on our social welfare system—education, hospital systems—I started becoming a very quick 

skeptic about the job the U.S. was doing. I sat in on a question 

where our colleague, John Carter from Texas, asked Mr. Rove 

about the problems of the totally porous border, and essentially Mr. 

Rove denied that there was a problem. 

I went sometime after that to Arizona. I am going to have my 

staffer, if I can, give you a map and just three of the 100 photos 

I took down in Arizona, and I also ask for permission to insert 

these in the record. 

Ms. LOFGREN. Without objection. 

[The information referred to follows:] 


Feeney-1.eps
59 


Feeney-2.eps
60 


Feeney-3.eps
61 


Feeney-4.eps
62 

Mr. FEENEY. The map that you see, one of the places I visited 

was a place called Casa Grande north of Route 8, which is 70 miles 

inside the American Arizona border. What I found there was a machine gun nest that had been occupied periodically, based on a 

queue, and it was the 13th of the series of nests that drug and individual smugglers were using on a repeated basis. 

What I was disturbed and shocked to find is that Homeland Security, ICE, Border Patrol—nobody else would take me up there. 

They are simply not doing their job, in my view, or that is what 

it looked like. I think Congressman King will agree with much of 

that. The only group doing its job when I was there was the environmental agency, the Bureau of Land Management. 

They have to clean up the mess. The cost of bringing an illegal 

immigrant over the border had dropped because there were these 

various organizations willing to do it. It had dropped from about 

$3,000 a head to $1,500 a head. For Middle-Eastern men, however, 

the price was about $35,000. 

What have you done since I visited the border, number one, to 

make sure that the terrorists that Steve King just talked about, 

but also the 12 million to 20 million people that are already here 

are no longer—and by the way, we got pictures 78 miles inside the 

border of dope. What has been done since I was there? 

Mr. CHERTOFF. When were you there? 

Mr. FEENEY. This would have been 3 years ago. 

Ms. LOFGREN. The gentleman’s time has expired, so we are going 

to have to ask for a very short monosyllabic answer. 

Mr. CHERTOFF. I could send you a lot as part of a long answer. 

I think we have transformed what we have done in 3 years there. 

I think in 3 years in terms of tactical infrastructure, capabilities, 

and almost doubling the Border Patrol, we have done a huge 

amount to change it. 

But here, I am going to ask for your help. As I try to build a 

fence and I try to put this stuff up on the border, what I hear is 

I hear complaints from environmentalists that the fence is going to 

interfere with the movement of some kind of animal or something. 

And I say, well, wait a second. It has got to be better for the local 

habitat to stop drug dealers from coming in with drugs or using vehicles. 

Ms. LOFGREN. Mr. Secretary, that request is noted. I am going 

to move this along to the gentleman from California, so Mr. 

Gohmert will also have a chance to ask his questions. 

Mr. Schiff? 

Mr. SCHIFF. Thank you, Madam Chair. 

Thank you, Mr. Secretary, for being here. One of the areas that 

I am most concerned about in terms of our homeland security is 

the area of nuclear terrorism. I would like to ask you what efforts 

the Department is making, what additional assistance you need on 

two fronts: One, in keeping the material out of the country in 

terms of the development of the portal technology or other efforts. 

I think probably the most significant thing we can do to protect 

ourselves is to prevent the wrong people from getting the material 

in the first place. That is probably beyond your purview, but if you 

could talk about efforts we are making to keep it our of the counVerDate Aug 31 2005 14:32 Sep 16, 2008 Jkt 000000 PO 00000 Frm 00066 Fmt 6633 Sfmt 6601 H:\WORK\FULL\030508\41082.000 HJUD1 PsN: 41082
63 

try. I know there has been some disappointment with the progress 

of the technology. 

But second, I am also very concerned about the nuclear material 

that is already in this country. Really, I am talking about the radiological material that is in our hospitals and other locations that 

is too accessible and could be used for a devastating radiological attack. So if you could address in open session what efforts you are 

making, what help you need, what Congress can do to assist you 

in those efforts. 

Mr. CHERTOFF. I am happy to, Congressman. It is true that the 

first line of defense is overseas, working with other countries, and 

through the antiproliferation security initiative, to prevent the materials from getting in the hands of terrorists in the first place. 

That is obviously, a lot of that lies in the domain of other departments. 

From our standpoint, obviously, keeping people out who are terrorists is critical, and we are doing a lot of stuff, as I have explained, about that. We are currently scanning virtually 100 percent of all containers that come in from overseas for radioactive or 

nuclear material. That is as opposed to zero percent 5 years ago. 

That is a big step forward. 

We are beginning, as was announced in the paper today, we are 

implementing a new initiative to screen crews and passengers and 

ultimately to scan private aviation as it comes in from overseas, so 

people don’t put a nuclear bomb on a private jet and fly it into the 

United States and detonate it. That is something that we have underway, again as a way of keeping the bad stuff out of the country. 

Similarly, we have a small-boat strategy that the Coast Guard is 

developing, after taking appropriate input from boaters, so that we 

don’t have people using private boats to smuggle nuclear weapons 

in. So we have a comprehensive approach both to keeping dangerous people and WMD-types of materials out of the country. 

The last piece, but you are quite right and it is probably—— 

Mr. SCHIFF. Mr. Secretary, before you get to the radiological material, did you say you are screening 100 percent of containers coming in for nuclear material? 

Mr. CHERTOFF. Virtually 100 percent. 

Mr. SCHIFF. And what kind of accuracy does our technology 

have? If you have nuclear material in a lead container—— 

Mr. CHERTOFF. Shielding is a problem. Now, if we have a basis 

to put a container through an X-ray machine, we can detect the 

fact of the shielding. So we have to use a combination of the scanning which detects active radiation, and also the intelligence that 

we have about the nature of the containers to determine which 

ones ought to be X-rayed as well as scanned. The problem with Xraying every container is you wouldn’t be able to allow the driver 

to drive the truck through because the driver would get irradiated. 

So there are some technological things we are addressing to try to 

deal with that issue. 

Beyond that, we are also doing more scanning overseas. We have 

three overseas radiation scanning, combined with X-ray and scanning operations overseas, including in Pakistan, because we are 

trying to do more of this before the container actually even comes 

into the U.S. 

64 

Just so I don’t run out of time, the last piece on the radiological 

stuff, which is often under-noticed, that you are quite right about, 

we are beginning this year and working with the medical community, rolling out a plan to retrofit, working with the Department of 

Energy, existing medical machines that use this kind of radiological material so that it is very much harder to remove that radiological material from the machine. I don’t want to get too specific, 

but the idea is that over the course of the next fiscal year, we will 

retrofit machines that use a certain kind of radioactive material so 

that you can’t just take the material out. 

Mr. SCHIFF. Do you have the resources to do that, or do you need 

us to work on that with you? 

Mr. CHERTOFF. I think we do have the resources. Frankly, the 

companies that actually do this are going to have to do the work. 

The cost per machine is pretty modest, so I think it can be handled 

by the hospitals themselves. We are also partnering with the Department of Energy. So I think we have the authorities. We do 

have money in the budget for this, so we are funding the necessary 

part on our end, and just to complete the answer, we are trying to 

work with the industry to actually—— 

Ms. LOFGREN. The gentleman’s time has expired. 

Mr. CHERTOFF [continuing]. To do actually a different kind of radiological material that is not susceptible to being made into a 

weapon. That is the more long-term solution. 

Ms. LOFGREN. The gentleman’s time has expired. Before going to 

the Ranking Member—— 

Mr. CHERTOFF. I can give you more information—— 

Mr. SCHIFF. Say for 10 seconds, and I want to echo the Chair’s 

concerns on the issue of how long it is taking them to get background checks for people applying for citizenship. 

Ms. LOFGREN. We are going to take a brief detour here on something that the Ranking Member and Chairman have agreed on, 

and the Committee will come to order. Without objection, the Chair 

is authorized to declare a recess. 

[Whereupon, at 11:52 a.m., the Committee proceeded to other 

business.] 

[Whereupon, at 11:53 a.m., the Committee resumed the hearing.] 

Ms. LOFGREN. We return to the hearing and recognize Mr. 

Gohmert for his 5 minutes. 

Mr. GOHMERT. Thank you, Madam Chair. 

So many questions, so little time. Thanks for your vigilance, Mr. 

Secretary. 

Following up on Mr. Feeney’s question and Mr. Sensenbrenner’s, 

this is an ongoing problem. Our local law enforcement is willing to 

pick people up. They do pick people up. They can’t afford to not 

only do the Federal Government’s job in picking up, but then also 

pay for detention until they are removed. Is there any way that if 

they pick them up and they hold them that they can be compensated sometimes $50 a day to hold them, until Homeland Security can pick them up, ICE can pick them up and remove them? 

Mr. CHERTOFF. I think the 287(g) program does have some provision—— 

65 

Mr. GOHMERT. But you know, 287(g) has so many requirements 

and so many requirements for training, and additional costs to 

local communities. 

Mr. CHERTOFF. There was a program on paying for criminal 

aliens which is run out of the Justice Department. That is a budget 

issue, to be honest with you. 

Mr. GOHMERT. I understand. That is why I am asking, can you 

help out the locals—— 

Mr. CHERTOFF. Whatever is available, I can’t speak to their 

budget. It is not my department. I don’t now what the budget is. 

Mr. GOHMERT. Is ICE under you? 

Mr. CHERTOFF. ICE is, but I think the reimbursement for jails 

and prisons comes under DOJ and does not come out of ICE. 

Mr. GOHMERT. Well, we have a lot of local law enforcement that 

is doing the Federal job and they are willing to do it, as we see 

it, but they need some help in reimbursement for holding people. 

Let me move on, since we don’t have a good answer there. 

On the REAL ID Act, that has been demonized in a lot of ways, 

but those of us who supported it believe in states rights. A state 

has a right to decide who uses their highways, but it can also, as 

the Federal Government, we also have the right to say who gets 

in transportation and interstate commerce. So in order for that to 

be received, then it has to be a state ID or driver’s license where 

the states don’t just hand it out to anybody illegally here. 

I know there is also a great fear or a national ID card. In trying 

to consider that and also meet the needs of ensuring that immigrants who are here legally can be properly identified, I was wondering about observing states’ rights by saying, okay, you decide 

who gets a driver’s license, but you have to meet these requirements. I was wondering about adding an amendment to the REAL 

ID Act to require those driver’s licenses also have a place on them 

that indicates that someone is a U.S. citizen or U.S. national, yes 

or no, and if the answer is no, then have a tamper-proof card that 

you have to furnish as an immigrant legally here. What do you 

think about that possibility? 

Mr. CHERTOFF. The REAL ID license is only available if you are 

here in the country lawfully. The idea is if you are here on a temporary basis lawfully, it has to expire at the end of you period. 

Mr. GOHMERT. That is correct. 

Mr. CHERTOFF. Between distinguishing between U.S. citizens and 

legal permanent residents, I am actually not sure that that is legal 

to do, even constitutionally. And I am not sure that we ought to 

distinguish between a legal permanent resident and citizens on the 

license, since both are here—— 

Mr. GOHMERT. No, it would be U.S. nationals and U.S. citizens, 

yes or no. If the answer is no, then you would have to have a tamper-proof card to show that you were lawfully here as a legal immigrant who was not a citizen or a national. We are not going to discriminate between nationals and citizens, but we do require that 

you have a green card. I don’t think that is discriminating under 

the Constitution. 

Mr. CHERTOFF. I think from a practical standpoint, adding another document, I don’t now if it would—— 

66 

Mr. GOHMERT. We are not adding another document. We need to 

have a green card that is tamper-proof. 

Mr. CHERTOFF. I agree the green card should be tamper-proof. 

We now issue a better quality, and there is a whole debate about 

whether we should recall the old ones and transition to the new 

ones. So the short answer is, I agree in principle with your idea 

that we ought to move forward with this. I want to make sure we 

don’t make what is already turned out to be a very complicated 

thing—— 

Mr. GOHMERT. That is what I am trying to simplify. 

Mr. CHERTOFF. I don’t want to make it more complicated, more 

contentious by introducing new requirements because I am afraid 

that is going to set us back. 

Mr. GOHMERT. Well, you can’t require somebody to produce a 

green card or a tamper-proof card if they are a U.S. citizen or U.S. 

national, well, how do you know, everybody would say, oh, I am a 

U.S. citizen or U.S. national if they have a state driver’s license 

that says they are a citizen or national, then that should take care 

of that. 

Mr. CHERTOFF. I understand your point. I could reflect on it. 

Mr. GOHMERT. I am trying to simplify, but I see that my time 

is running out. 

Let me ask this real quickly. We had a Border Patrol agent who 

was following some illegals by airplane and all of a sudden just 

crashed. There are people back in Henderson, Texas that are concerned he was shot down, but nobody that they know of has ever 

been allowed to see the airplane. Would I be able to see the airplane to see if there are bullet holes? 

Mr. CHERTOFF. I am familiar with an incident where somebody 

was following illegals with an airplane. We have had some helicopters—— 

Mr. GOHMERT. I know it happened. I went to the funeral. So anyway, I wondered if I might be able to see the airplane. 

Mr. CHERTOFF. I would have to find out about that. I can’t answer. 

Mr. GOHMERT. So a Member of Congress may not be allowed to 

see the airplane? 

Mr. CHERTOFF. You are catching me about something I know 

nothing about, so I have to find out about it. 

Mr. GOHMERT. Okay. So that doesn’t give me a lot of encouragement. It looks like we need a hearing on that. 

As far as adjudicators, have we increased the number of adjudicators with proper security clearances so that we can move 

things? I have a guy that has been waiting since 1996 to get lawful 

status here. 

Mr. CHERTOFF. That is not a problem with the number of adjudicators. There are problems with—— 

Ms. LOFGREN. The gentleman’s time has expired. 

Mr. CHERTOFF. The answer is we are dealing with both. We are 

hiring more adjudicators and we are working to be more efficient 

on the backlog. 

Mr. GOHMERT. Thank you, sir. 

Ms. LOFGREN. We only have 4 minutes left until the vote is 

called on the floor. We have two Members that want to ask quesVerDate Aug 31 2005 14:32 Sep 16, 2008 Jkt 000000 PO 00000 Frm 00070 Fmt 6633 Sfmt 6601 H:\WORK\FULL\030508\41082.000 HJUD1 PsN: 41082
67 

tions, so I think by agreement each will get 2 minutes and submit 

the rest of their questions in writing. 

Sheila Jackson Lee is recognized for 2 minutes. 

Ms. JACKSON LEE. Madam Chair, let me thank you for your indulgence. This is difficult when we have votes, and I apologize for 

being delayed in my district. 

Mr. Secretary, I am going to repeat and ask you to have these 

questions in writing. I am concerned about the Hutto facility that 

is actually in Texas, to give me precise answers about the waking 

of children with flashlights. You may not be aware of it, but we 

should get something in response. We have been following this for 

a couple of years. 

The other is I want to ensure—let me just ask a specific question. Do you know the average tenure of ICE agents? 

Mr. CHERTOFF. Not off-hand. 

Ms. JACKSON LEE. What I would like to weave that into is retention and training. We know that their job is difficult and has been 

made more difficult because of the, in essence, feat of trying to use 

them to have immigration reform when we should really have laws. 

So they are finding themselves invading frightened civilians who 

have no interest in terrorizing us, and of course it is in many instances very hostile. I would like to know about their retention and 

training, if you would, if you don’t know the answer. 

The other question I would ask is, what is the policy for providing life-saving medication to those who are held in detention? 

We are finding that that is particularly a problem. 

Mr. CHERTOFF. The policy is to do it. 

Ms. JACKSON LEE. I am sorry? 

Mr. CHERTOFF. The policy is we do obviously provide life-saving 

medicine to people in detention. 

Ms. JACKSON LEE. My last one, if can do in writing, is I do think 

that even though it is the FBI, you need to give us a response on 

what efforts are being made, whether you put it in a classified 

form, what efforts are being made on this waiting list? It is torturous. It is destroying people’s lives. 

Mr. CHERTOFF. And it is very frustrating for us, too. We have actually spent a lot of time tackling this issue, so we can give that 

to you. 

Ms. LOFGREN. We will get a report in writing on that. 

Ms. JACKSON LEE. Thank you. I have other questions I will submit for the record. 

Thank you, Madam Chair. 

Ms. LOFGREN. Thank you. 

Mr. Franks is recognized for 2 minutes. 

Mr. FRANKS. Thank you, Madam Chair. 

Thank you, Mr. Secretary. I had the privilege, as you know, of 

traveling with you and the President down to the Arizona border 

and witnessed this double-fence that was being built there, and 

was convinced that this was a very, very effective mechanism. My 

greatest concern, Mr. Secretary, is very simple. Outside of immigration, I am concerned about the national security component, and 

that the border is probably a terrorist’s most available means to 

penetrate this country. 

68 

With that said, do you know, sir, and this may have to be answered later, do you know, sir, if the double-fence with the surveillance and the road between them has ever been breached by any— 

? 

Mr. CHERTOFF. I think it has. I think the double-fence with the 

road has been breached, and we have had people just recently what 

they did is they tied a wire across the double-fence and when you 

pulled it tight, it would be at the level of the neck of a Border Patrol agent riding on an ATV, and it would take his head off. So obviously, they got through it. They put up this booby-trap in the 

double fence and we were lucky that we found it. 

Mr. FRANKS. What I would like just for the record, maybe you 

could give us examples of when the double-fence, as it is being built 

in Arizona now with the sheet steel going four feet into the ground 

so they can’t be tunneled under very easily, of being breached. If 

you could do that, because I think that is a pretty effective mechanism. 

But again, my great concern is the stopping terrorist at the border. What do you think is our greatest vulnerability as far as terrorists being able to come in and either hit this country with a nuclear capability or with other weapons of mass destruction? 

Mr. CHERTOFF. I think the greatest vulnerability right now is 

private aircraft, somebody flying a private aircraft from overseas 

with a nuclear bomb, and they wouldn’t even land. They would just 

detonate it. That is why we are in the process of requiring new and 

stringent security measures for private aircraft. 

Mr. FRANKS. I see. That is a good answer, Mr. Secretary. 

Last question, what do you need from us more than anything 

else to protect this country? 

Mr. CHERTOFF. I need the continued support of Congress for 

measures like REAL ID Act, like western hemisphere traveling 

issues, of secure documentation, continued support for building the 

low-tech and the high-tech at the border, continued support for hiring Border Patrol and ICE. That is in my department. 

Mr. FRANKS. Thank you for all your good work. 

Ms. LOFGREN. The gentleman’s time has expired. 

Mr. Secretary, we appreciate your presence here today. Many 

Members have additional questions. We will forward those questions that are within the Committee’s jurisdiction to you. I would 

ask that if at all possible that the answers—we are only going to 

send questions to you that are important to us—that the answers 

be prepared and promptly responded to, if that would be possible. 

Mr. CHERTOFF. We will. Thank you very much. 

Ms. LOFGREN. With that, this hearing is adjourned. 

[Whereupon, at 12:04 p.m., the Committee was adjourned.] 

(69) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF TEXAS, AND MEMBER, COMMITTEE ON THE JUDI- CIARY

Mr. Chairman, thank you for your leadership in convening today’s very important 

hearing on the oversight of the Department of Homeland Security. I would also like 

to thank the ranking member the Honorable Lamar Smith. Welcome Secretary Michael Chertoff. 

The Department of Homeland Security was established five years ago. The National Strategy for Homeland Security and the Homeland Security Act of 2002 

served to mobilize and organize our nation to secure the homeland from terrorist 

attacks. To this end, the primary reason for the establishment of the Department 

of Homeland Security (DHS) was to provide the unifying core for the vast network 

of organizations and institutions involved in the efforts to secure our nation. In 

order to better do this and to provide guidance to the 180,000 DHS men and women 

who work every day on this important task, the Department developed its own highlevel strategic plan. The vision, mission statements, strategic goals and objectives 

provide the framework guiding the actions that make up the daily operations of the 

Department. 

DHS’s vision is simple: to preserve our freedoms, protect America, and secure our 

homeland. Its mission is to lead the unified national effort to secure America; prevent and deter terrorist attacks and protect against and respond to threats and hazards to the nation; and ensure safe and secure borders, welcome lawful immigrants 

and visitors, and promote the free-flow of commerce. 

DHS has seven strategic goals and objectives. These include, awareness, prevention, protection, response, recovery, service, and organizational excellence. 

The magnitude and severity of the tragic events of September 11, 2001, were unprecedented, and that dark day became a watershed event in the Nation’s approach 

to protecting and defending the lives and livelihoods of the American people. Despite 

previous acts of terror on our Nation’s soil, such as, the 1993 attack on the World 

Trade Center and the 1995 bombing of the Alfred P. Murrah Federal Building in 

Oklahoma City, homeland security before the tragic events of September 11th existed as a patchwork of efforts undertaken by disparate departments and agencies 

across all levels of government. While segments of our law enforcement and intelligence communities, along with armed forces, assessed and prepared to act against 

terrorism and other significant threats to the United States, we lacked a unifying 

vision, a cohesive strategic approach, and the necessary institutions within government to secure the Homeland against terrorism. 

The shock of September 11 transformed our thinking. In the aftermath of history’s 

deadliest international terrorist attack, we developed a homeland security strategy 

based on a concerted national effort to prevent terrorist attacks within the United 

States, reduce America’s vulnerability to terrorism, and minimize the damage and 

recover from attacks that do occur. To help implement that strategy, DHS enhanced 

homeland security and counterterrorism architecture at the Federal, State, local, 

Tribal, and community levels. 

The Department’s understanding of homeland security continued to evolve after 

September 11, adapting to new realities and threats. Most recently, our Nation endured Hurricane Katrina, the most destructive natural disaster in U.S. history. The 

human suffering and staggering physical destruction caused by this national disaster was a reminder that threats come not only from individuals, inside and outside of our borders, but also from nature. Indeed, certain natural events that reach 

catastrophic levels, such as hurricanes and other natural disasters, can have significant implications for homeland security. The resulting national consequences and 

70 

possible cascading effects from these events might present potential or perceived 

vulnerabilities that could be exploited. 

Over six years after September 11, 2001, DHS is moving beyond operating as an 

organization in transition to a Department diligently working to protect our borders 

and critical infrastructure, prevent dangerous people and goods from entering our 

country, and recover from natural disasters effectively. The total FY 2009 budget 

request for DHS is $50.5 billion in funding, a 7 percent increase over the FY 2008 

enacted level excluding emergency funding. The Department’s FY 2009 gross discretionary budget request is $40.7 billion, an increase of 8 percent over the FY 2008 

enacted level excluding emergency funding. Gross discretionary funding does not include mandatory funding such as the Coast Guard’s retirement pay accounts and 

fees paid for immigration benefits. The Department’s FY 2009 net discretionary 

budget request is $37.6 billion, which does not include fee collections such as funding for the Federal Protective Service and aviation security passenger and carrier 

fees. 

DHS has engaged in much good work over the past six years, but more needs to 

be done. The Department of Homeland Security has been dogged by persistent criticism over excessive bureaucracy, waste, and ineffectiveness. In 2003, the Department came under fire after the media revealed that Laura Callahan, Deputy Chief 

Information Officer at DHS, had obtained her advanced computer science degrees 

through a diploma mill in a small town in Wyoming. The Department was blamed 

for up to $2 billion of waste and fraud after audits by the Government Accountability Office revealed widespread misuse of government credit cards by DHS employees. The frivolous purchases included beer brewing kits, $70,000 of plastic dog 

booties that were later deemed unusable, boats purchased at double the retail price 

(many of which later could not be found), and iPods ostensibly for use in ‘‘data storage’’. 

The Associated Press reported on September 5, 2007 that DHS had scrapped an 

anti-terrorism data mining tool called ADVISE (Analysis, Dissemination, Visualization, Insight and Semantic Enhancement) after the agency’s internal Inspector General found that pilot testing of the system had been performed using data on real 

people without required privacy safeguards in place. The system, in development at 

Lawrence Livermore and Pacific Northwest national laboratories since 2003, has 

cost the agency $42 million to date. Controversy over the program is not new; in 

March 2007, the Government Accountability Office stated that ‘‘the ADVISE tool 

could misidentify or erroneously associate an individual with undesirable activity 

such as fraud, crime or terrorism’’. Homeland Security’s Inspector General later said 

that ADVISE was poorly planned, time-consuming for analysts to use, and lacked 

adequate justifications. 

Increasingly, the Department has come under growing scrutiny because of its immigration and deportation practices. In February 2007, the Judiciary Subcommittee 

on Immigration held a hearing investigating the problems with U.S. Immigration 

and Customs Enforcement (ICE) interrogation, detention, and removal procedures 

as applied to U.S. citizens. During that hearing, there were many reports of our immigration system targeting American citizens by detaining, interrogating and forcibly deporting U.S. citizens under the pretext that these citizens were illegal aliens. 

The citizens targeted have been some of the most vulnerable segments of American 

society. ICE has targeted the mentally-challenged and youths. 

ICE detention facilities nationwide have been criticized, including the detention 

facility at the T. Don Hutto Correctional Center in Williamson County, Texas. Corrections Corporation of America (CCA) operates the 512-bed facility under a contract 

with Williamson County. The facility was opened in May 2006 to accommodate immigrant families in ICE custody. As history has shown us, even the best of intentions can go astray, which is what happened at the Hutto Detention Center. 

Due to the increased use of detention, and particularly in light of the fact that 

children are now being housed in detention facilities, many concerns have been 

raised about the humanitarian, health, and safety conditions at these facilities. In 

a 72-page report, ‘‘Locking Up Family Values: The Detention of Immigrant Families,’’ recently released by two refugee advocacy organizations, the Women’s Commission for Refugee Women and Children and the Lutheran Immigration and Refugee Service concluded that the T. Don Hutto Family Residential Center and the 

Berks Family Shelter Care Facility, were modeled on the criminal justice system. 

In these facilities, ‘‘residents are deprived of the right to live as a family unit, denied adequate medical and mental health care, and face overly harsh disciplinary 

tactics.’’ 

The American Civil Liberties Union (ACLU) filed a lawsuit against ICE in March 

2007 on behalf of several juvenile plaintiffs that were housed in the facility at the 

time claiming that the standards by which they were housed was not in compliance 

71 

with the government’s detention standards for this population. The claims were, 

amongst other things, improper educational opportunities, not enough privacy, and 

substandard health care. The relief being sought was the release of the plaintiffs. 

In August 2007, the ACLU reached a landmark settlement with the ICE that 

greatly improves conditions for immigrant children and their families in the Hutto 

detention center in Taylor, Texas. 

Since the original lawsuits were filed, all 26 children represented by the ACLU 

have been released. The last six children were released days before the settlement 

was finalized and are now living with family members who are U.S. citizens or legal 

permanent residents while pursuing their asylum claims. Conditions at Hutto have 

gradually and significantly improved as a result of litigation. Children are no longer 

required to wear prison uniforms and are allowed much more time outdoors. Educational programming has expanded and guards have been instructed not to discipline children by threatening to separate them from their parents. Despite the tremendous improvements at Hutto, the facility still has a way to go. 

As one of the principal and long-standing supporters of comprehensive immigration reform in the US Congress and an author of a comprehensive immigration reform bill, the SAVE AMERICA Act, I hope that today’s hearing will serve as a catalyst for closer scrutiny of our immigration detention system and the immigration enforcement functions of DHS. 

The Administration has more work to do to secure our border. The Border Patrol 

needs more agents and more resources. The Rapid Response Border Protection Act, 

H.R. 4044, a bill that I co-sponsored, would meet these needs by providing critical 

resources and support for the men and women who enforce our homeland security 

laws. 

This would include adding 15,000 Border Patrol agents over the next 5 years, increasing the number of agents from 11,000 to 26,000. It would require the Secretary 

of the Department of Homeland Security (DHS) to respond rapidly to border crises 

by deploying up to 1,000 additional Border Patrol agents to a State when a border 

security emergency is declared by the governor. It would add 100,000 more detention beds to ensure that those who are apprehended entering the United States unlawfully are sent home instead of being released into our communities. And, it 

would provide critical equipment and infrastructure improvements, including additional helicopters, power boats, police-type vehicles, portable computers, reliable 

radio communications, hand-held GPS devices, body armor, and night-vision equipment. 

The Department has achieved much over the past five years in ensuring that 

America is a safer place; however, much work is still required. I am hopeful that 

this new federal agency will become more effective and diverse. The members of 

Congress and the Department all want a safe and secure America. Again, I welcome 

the testimony from our distinguished panelist, Secretary Chertoff. 

Thank you. Mr. Chairman, I yield the remainder of my time. 

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PREPARED STATEMENT OF THE AMERICAN CIVIL LIBERTIES UNION (ACLU) 


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CHERTOFF, SECRETARY, U.S. DEPARTMENT OF HOMELAND SECURITY


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