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SETTING POST–SEPTEMBER 11TH INVESTIGATIVE

PRIORITIES AT THE BUREAU OF IMMIGRATION

AND CUSTOMS ENFORCEMENT

HEARING

BEFORE THE

SUBCOMMITTEE ON NATIONAL SECURITY,

EMERGING THREATS, AND INTERNATIONAL

RELATIONS

OF THE

COMMITTEE ON

GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

MARCH 28, 2006

Serial No. 109–170

Printed for the use of the Committee on Government Reform

(

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html

http://www.house.gov/reform

(II)

COMMITTEE ON GOVERNMENT REFORM

TOM DAVIS, Virginia, Chairman

CHRISTOPHER SHAYS, Connecticut

DAN BURTON, Indiana

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

JOHN L. MICA, Florida

GIL GUTKNECHT, Minnesota

MARK E. SOUDER, Indiana

STEVEN C. LATOURETTE, Ohio

TODD RUSSELL PLATTS, Pennsylvania

CHRIS CANNON, Utah

JOHN J. DUNCAN, JR., Tennessee

CANDICE S. MILLER, Michigan

MICHAEL R. TURNER, Ohio

DARRELL E. ISSA, California

JON C. PORTER, Nevada

KENNY MARCHANT, Texas

LYNN A. WESTMORELAND, Georgia

PATRICK T. MCHENRY, North Carolina

CHARLES W. DENT, Pennsylvania

VIRGINIA FOXX, North Carolina

JEAN SCHMIDT, Ohio

——— ———

HENRY A. WAXMAN, California

TOM LANTOS, California

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

DANNY K. DAVIS, Illinois

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

CHRIS VAN HOLLEN, Maryland

LINDA T. SANCHEZ, California

C.A. DUTCH RUPPERSBERGER, Maryland

BRIAN HIGGINS, New York

ELEANOR HOLMES NORTON, District of

Columbia

———

BERNARD SANDERS, Vermont

(Independent)

DAVID MARIN, Staff Director

TERESA AUSTIN, Chief Clerk

PHIL BARNETT, Minority Chief of Staff/Chief Counsel

SUBCOMMITTEE ON NATIONAL SECURITY, EMERGING THREATS, AND INTERNATIONAL

RELATIONS

CHRISTOPHER SHAYS, Connecticut, Chairman

KENNY MARCHANT, Texas

DAN BURTON, Indiana

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

STEVEN C. LATOURETTE, Ohio

TODD RUSSELL PLATTS, Pennsylvania

JOHN J. DUNCAN, JR., Tennessee

MICHAEL R. TURNER, Ohio

JON C. PORTER, Nevada

CHARLES W. DENT, Pennsylvania

DENNIS J. KUCINICH, Ohio

TOM LANTOS, California

BERNARD SANDERS, Vermont

CAROLYN B. MALONEY, New York

CHRIS VAN HOLLEN, Maryland

LINDA T. SANCHEZ, California

C.A. DUTCH RUPPERSBERGER, Maryland

STEPHEN F. LYNCH, Massachusetts

BRIAN HIGGINS, New York

EX OFFICIO

TOM DAVIS, Virginia HENRY A. WAXMAN, California

LAWRENCE J. HALLORAN, Staff Director and Counsel

ELIZABETH DANIEL, Professional Staff Member

ROBERT A. BRIGGS, Clerk

ANDREW SU, Minority Professional Staff Member

(III)

C O N T E N T S

Page

Hearing held on March 28, 2006 ............................................................................ 1

Statement of:

Ryan, Joseph F., Ph.D., Chairperson, Department of Criminal Justice

and Sociology, PACE University; Caroline Fredrickson, director, Washington Legislative Office, American Civil Liberties Union; and Joseph

R. Webber, Special Agent in Charge (retired), Bureau of Immigration

and Customs Enforcement, U.S. Department of Homeland Security ....... 74

Fredrickson, Caroline ................................................................................ 99

Ryan, Joseph F. ......................................................................................... 74

Webber, Joseph R. ..................................................................................... 109

Stana, Richard M., Director, Homeland Security and Justice Issues, U.S.

Government Accountability Office; Richard L. Skinner, Inspector General, U.S. Department of Homeland Security; and Robert A. Schoch,

Deputy Assistant Director, National Security Division, Office of Investigations, U.S. Immigration and Customs Enforcement, Department

of Homeland Security ................................................................................... 10

Schoch, Robert A. ...................................................................................... 43

Skinner, Richard L. ................................................................................... 33

Stana, Richard M. ..................................................................................... 10

Letters, statements, etc., submitted for the record by:

Fredrickson, Caroline, director, Washington Legislative Office, American

Civil Liberties Union, prepared statement of ............................................. 102

Kucinich, Hon. Dennis J., a Representative in Congress from the State

of Ohio, March 28, 2006 article ................................................................... 6

Ryan, Joseph F., Ph.D., Chairperson, Department of Criminal Justice

and Sociology, PACE University, prepared statement of .......................... 77

Schoch, Robert A., Deputy Assistant Director, National Security Division,

Office of Investigations, U.S. Immigration and Customs Enforcement,

Department of Homeland Security:

July 30, 2004 memorandum ..................................................................... 64

Prepared statement of ............................................................................... 45

Shays, Hon. Christopher, a Representative in Congress from the State

of Connecticut, prepared statement of ........................................................ 3

Skinner, Richard L., Inspector General, U.S. Department of Homeland

Security, prepared statement of .................................................................. 35

Stana, Richard M., Director, Homeland Security and Justice Issues, U.S.

Government Accountability Office, prepared statement of ....................... 12

Webber, Joseph R., Special Agent in Charge (retired), Bureau of Immigration and Customs Enforcement, U.S. Department of Homeland Security, prepared statement of .......................................................................... 113

(1)

SETTING POST–SEPTEMBER 11TH INVESTIGATIVE PRIORITIES AT THE BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT

TUESDAY, MARCH 28, 2006

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON NATIONAL SECURITY, EMERGING

THREATS, AND INTERNATIONAL RELATIONS,

COMMITTEE ON GOVERNMENT REFORM,

Washington, DC.

The subcommittee met, pursuant to notice, at 2:05 p.m., in room

2247, Rayburn House Office Building, Hon. Chris Shays (chairman

of the subcommittee) presiding.

Present: Representatives Shays, Platts, Kucinich, and Van

Hollen.

Staff present: Lawrence Halloran, staff director and counsel;

Robert A. Briggs, analyst; Marc LaRoche, intern; Elizabeth Daniel,

professional staff member; Andrew Su, minority professional staff

member; Earley Green, minority chief clerk; and Jean Gosa, minority assistant clerk.

Mr. SHAYS. A quorum being present, the Subcommittee on National Security, Emerging Threats, and International Relations

hearing entitled, ‘‘Setting Post-September 11th Investigative Priorities at the Bureau of Immigration and Customs Enforcement’’ is

called to order.

Homeland security will never be about certainties. It will always

be about probabilities, about risks and about choices. Which cargo

containers to inspect? Which air baggage to screen? Or, as we ask

today, who among the estimated 12 million non-citizens illegally residing within our borders should the Department of Homeland Security [DHS], choose to pursue?

In creating the Department of Homeland Security, the goal was

to consolidate previously dispersed security functions to gain the

seamlessness and synergies needed to confront post-September

11th threats. The DHS Bureau of Immigration and Customs Enforcement [ICE], brought under one bureaucratic roof for the first

time the interior enforcement functions of Immigration and Naturalization Service, formerly part of the Department of Justice, and

the investigative arm of the Treasury Department’s U.S. Customs

Service. The merger doubled the number of agents available to secure the homeland against those who would exploit our openness

and hospitality.

But in 2004, we learned that suspected terrorists, who entered

the country on revoked visas, were not being consistently tracked

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or removed. Cumbersome, reactive processes at ICE raised questions about how the bureau sets investigative priorities to meet

new threats to national security. At our request, the Government

Accountability Office [GAO], examined how the ICE Office of Investigations is organized, how risks are evaluated and how the Department’s largest investigative force allocates resources against a

diverse, changing mission portfolio.

GAO found inherited structures and missions still tend to dominate ICE enforcement activities. Only a small percentage of investigative resources are focused on national security cases. Even that

nexus to national security is often passively imputed to legacy lines

of businesses, like munitions violations and illegal exports, rather

than being driven by a proactive effort to target vulnerabilities.

Drugs, financial crimes, general immigration violations, smuggling,

human trafficking, document fraud and worksite enforcement draw

the bulk of ICE attention.

These are important missions, but the challenge remains to incorporate a variety of inherited mandates into a coherent strategy

based on clear-eyed risk assessment. Under that strategy, ICE

should actively probe for systemic weaknesses that could be exploited to our detriment. We have to assume the terrorists are

doing the same.

GAO did find some evidence national security risks are beginning

to drive investigative priorities. While the bureau has authority to

look into any employer suspected of hiring illegal aliens, ICE investigators have been instructed to focus their attention on critical infrastructure sites. Recent actions against non-citizens found working at nuclear facilities and defense plants demonstrate the effective fusion of the immigration and security missions.

Still, the effort to achieve the symbiosis more broadly and consistently presents profound challenges. Old field structures may not

serve new missions. Traditional law enforcement methods do not

always measure tangible outcomes against changing threats. Like

sand in the gears, some cases still trigger bureaucratic turf battles

and clog interagency communication and cooperation channels between ICE and other investigative forces inside and outside DHS.

Miscast investigative priorities can appear to target enforcement

activity arbitrarily or inappropriately on persons who pose little

real threat to our security.

These issues will be addressed by two panels of witnesses who

bring expertise, experience and insight to our discussion. We are

grateful for their time and we look forward to their testimony.

[The prepared statement of Hon. Christopher Shays follows:]

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Mr. SHAYS. At this time, the Chair would recognize our distinguished ranking member, Mr. Kucinich.

Mr. KUCINICH. First of all, I want to thank the Chair for holding

this hearing. I want to thank each and every one of you who has

made a career of serving our government, who is dedicated to the

service of the people. And I say that because I don’t want you to

take anything I am about to say personally.

When the Department of Homeland Security was formed, I didn’t

even like the name of it, because I thought the name of it had a

whiff of something that wasn’t particularly democratic. When the

Department of Homeland Security was formed I predicted that it

would take 10 years at least before anyone would know how to integrate all the parts. In their various constituent members, before

the Department of Homeland Security, a lot of these various departments were doing a pretty good job. And the creation of the Department itself—this really—I mean we could take this discussion

to a whole different level, which was that trip necessary? Can you

really create a functional working Department of Homeland Security within the mandate of the legislation a few years ago. But inasmuch as this is where we are, even though the Department’s 3

years-old, its structure, missions, character, still in progress. At the

macro and micro levels of DHS, there’s still much confusion; much

excess needs to be cut; overlap and duplication needs to be eliminated. Management reform urgently needed.

The consequences of this poor organization are great, even

though it was predictable. In 3 short years on the job, we’ve seen

all kinds of problems from the ambiguous color-coded terrorist

threat warnings, for the media consumption scare the hell out of

the American people. It reflects on the Department. People get mad

at the DHS, when really it was some PR guy working for the White

House, who tried to force this through implementation at the Department level.

You see the people loosing confidence in the system already with

the Homeland Security getting blamed for evacuation, rescue, recovery efforts during Hurricanes Katrina and Rita.

I mean think about it. What we’ve done is create a system that

is guaranteed to not work. And we’re blaming the people who run

it, when the system wasn’t going to work in the first place.

We hear now interagency communication needs to be improved;

right. An article in today’s New York Times illustrates how undercover GAO testers slipped radioactive materials over two points to

the U.S. border. The Border Patrol agents stopped the testers;

asked for their licenses, issued by the NRC. It couldn’t verify with

the NRC whether or not their licenses were valid or fraudulent. In

fact, the testers had forged licenses. They were allowed to pass

through anyway. If there had been effective communication, this

wouldn’t have happened.

[The information referred to follows:]

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Mr. KUCINICH. Now, I wonder in the old—before the Department

of Homeland Security was formed, if in the formation of this Department, we have actually impeded the communication between

the various constituent elements.

Now, the next national disaster, whether it is man made or natural when we created a department of Washington bureaucrats who

are forced to bicker with each other. It’s inevitably the American

people pay the price.

Now, under DHS, the new immigration and customs enforcement

missions prevent acts of terrorists by targeting the people, money,

and materials that support terrorist and criminal activities.

And this organization, which is the largest investigative arm of

the Department, is responsible for identifying and shutting down

vulnerabilities in the Nation’s border, and the economic transportation and infrastructure security. That’s according to the Web site.

A GAO study found that 13 percent of ICE’s investigations concerned with national security—the remaining investigations were

related to narcotics, financial crimes, general alien investigations.

Now are these numbers surprising? Are the numbers proportionate

to the threats ICE should be investigating? How much more does

ICE investigate threats of terrorism than previous customs service

and INS? Are there border-related crimes, like drug smuggling, for

example, being crowded out by this new organization? If they are

crowded out by ICE’s new priorities, then whose handling them?

Are they being handled adequately?

I mean ICE has an enormous job, and our country has many

vulnerabilities. I would like to highlight one such vulnerability as

a case in point. There’s an illegal tunnel that starts in Brazil and

ends in the United States, an illegal product: Brazilian pig iron

made with slave labor is channeled through this tunnel on a regular basis. It has been happening for years, and ICE knows about

it. Oh, well, ICE tells the Congressman, it has supposedly been investigating the case in Brazil since 2004. No progress has been

made since then. From July 2004 to May 2005 not a single ICE investigator has visited the Piaui region of Brazil where the slave

made pig iron is produced. I have written ICE and the Customs

Border Protection numerous times, to inquire about this investigation; never got a response. I can understand. I mean they are just

so busy trying to figure out how to work. The job isn’t getting done.

When American minors are put out of work because they are forced

to grossly and unfairly compete with slave labor, I would say this

is an economic vulnerability, not to mention when ICE isn’t doing

its job investigating slave labor allegations. We aren’t able to enforce their law, which prohibits the importation of products made

with slave labor. The President calls for a 6-percent increase in the

DHS budget, including a 21 percent increase in funding for ICE.

I want to know exactly how this money is going to be used. How

is it going to improve DHS and ICE’s ability to address our country’s many significant vulnerabilities and get the job done. The taxpayers deserve to know if they are getting their money’s worth.

So I hope, Mr. Chairman, the hearing, which I appreciate that

you have called, will be able to address some of these issues.

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I want to thank the GAO and Inspector Skinner for their work.

I look forward to the results of this hearing, and again, I wasn’t

for it at the beginning. Thanks.

Mr. SHAYS. Thank you very much. Just while the gentleman is

here, I would just want to put on the record, because I will be saying it when he is not here, I think the Department makes a tremendous amount of sense. We just want it to work right. We want

to be able to maximize the people who can work in this area, and

I think it made sense to see that combination. We just want to

make sure it is going to work the way we intended it.

So at this time, before the gentleman leaves, I ask unanimous

consent that all members of the subcommittee be permitted to

place an opening statement in the record, and the record will remain open for 3 days for that purpose. And without objection, so

ordered.

I ask further unanimous consent that all Members be permitted

to include their written statement in the record. Without objection,

so ordered.

At this time, the Chair would recognize Mr. Richard M. Stana,

Director, Homeland Security and Justice Issues, U.S. Government

Accountability Office; Mr. Richard L. Skinner, Inspector General,

U.S. Department of Homeland Security, and Mr. Robert Schoch,

am I pronouncing the name correctly?

Mr. SCHOCH. You are, sir.

Mr. SHAYS. Thank you. Deputy Assistant Director, National Security Division, ICE Office of Investigations, U.S. Department of

Homeland Security.

So we have a great panel here. I’d ask you for all three of you

to stand. If there is anyone who might respond with you, you know,

you might call on them, rather than my swearing them in later, if

they would raise their hand and stand as well. Is there anyone that

you would like possibly have join you?

OK. You guys are on your own.

[Witnesses sworn.]

Mr. SHAYS. Note for the record our witnesses have responded in

the affirmative. I’m talking a little softly. I think it is having a

hearing after lunch, but I want you guys to really make sure I stay

awake, so speak loudly and forcefully and with passion and conviction and all of that.

Mr. Stana, am I pronouncing your name correct?

Mr. STANA. Yes.

Mr. SHAYS. Great.

Mr. STANA. Stana.

Mr. SHAYS. Nice to have you here.

Mr. STANA. Thank you.

Mr. SHAYS. Now, I am going to do one thing: I am going to adjust

my chair. I am either going to shoot down low, and I don’t want

anyone to laugh, but my chair is leaning backward. So excuse me

a second. OK. Still stinks, but here we go. Mr. Stana, you have the

floor.

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STATEMENTS OF RICHARD M. STANA, DIRECTOR, HOMELAND

SECURITY AND JUSTICE ISSUES, U.S. GOVERNMENT ACCOUNTABILITY OFFICE; RICHARD L. SKINNER, INSPECTOR

GENERAL, U.S. DEPARTMENT OF HOMELAND SECURITY; AND

ROBERT A. SCHOCH, DEPUTY ASSISTANT DIRECTOR, NATIONAL SECURITY DIVISION, OFFICE OF INVESTIGATIONS,

U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, DEPARTMENT OF HOMELAND SECURITY

STATEMENT OF RICHARD M. STANA

Mr. STANA. Thank you. Chairman Shays and members of the

subcommittee. I am pleased to be here today to discuss how ICE

allocates its investigative resources. The events of September 11th

demonstrated that terrorists can exploit vulnerabilities in our border control and internal enforcement systems to enable their criminal deeds.

ICE’s mission is to prevent terrorist attacks within the United

States, and reduce our vulnerability to terrorism while ensuring its

mandated customs, immigration, and Federal protective enforcement functions are not diminished.

My prepared statement today is based on a report we did for this

subcommittee on how ICE’s Office of Investigations has structured

itself and used its 5,600 investigators to perform its missions and

address vulnerabilities.

In my oral statement, I would like to focus on three main points:

First, OI’s investigative activities and organizational structures

largely reflect those of legacy Customs and INS. For the most part,

OI has the same authority and is doing the kinds of investigations

that Customs and INS did, although it seeks to focus on investigations that might have an impact on national security.

For example, in investigating employers that might have violated

laws that regulate alien employment in the workplace, it is focusing on employers at critical infrastructure sites rather than on employers that historically employed large numbers of unauthorized

workers.

As for OI’s field structure, it was created by merging the existing

customs and INS field offices located in cities near major ports of

entry, high volume smuggling corridors, proximity to State and

Federal prisons, and significant money laundering infrastructure.

OI recognizes that its field structure is geared more toward legacy missions and not ideally matched to the new DHS mission, but

budget constraints have limited large-scale relocations of offices

and investigators.

My second point is that although there is no firm standard for

how OI should distribute its investigative resources, a large majority of its caseload did not have a direct nexus to national security.

About 10 to 15 percent of OI’s investigative resources was devoted to investigations that it has identified as national security related. There is some question as to how many of these were actually national security related.

On the other hand, over half was devoted to legacy mission investigations involving drugs, financial crime, or general alien

issues. Reasons for this distribution include the sources and types

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of leads that OI receives, its budgetary commitment to drug investigations, and legacy mission functions and expertise.

For example, OI receives funding to support the President’s National Drug Control Strategy, and has continued the legacy Customs practice of responding to violations relating to drug seizures

at ports of entry.

As a second example, OI continues to perform the legacy INS

practice of identifying aliens incarcerated in prisons and jails who

are eligible for removal from the United States.

My final point is that OI lacks several key elements that could

help it better insure that it focuses its limited resources on the

greatest potential vulnerabilities. OI has taken some initial steps

to introduce risk management into its operations, in part, by giving

priority to leads with a potential impact on national security.

However, OI has not conducted a comprehensive risk assessment

to determine what types of violations present the greatest risks for

exploitation by terrorists and other criminals. Such an assessment

could help OI prioritize its efforts and direct its resources toward

those investigations that address the most significant

vulnerabilities.

We also found that OI had not yet developed outcome-based performance measures. Such measures would provide a basis for gauging effectiveness and identifying areas for improvement.

We also found that OI did not have sufficient monitoring and

communications systems to help ensure that the potential

vulnerabilities it uncovers are fixed by the agencies and private

partners that manage affected programs.

For example, we recently found that at the end of Immigration

Benefit Fraud investigations, OI was not always notifying U.S. citizenship and immigration services personnel about potential systemic vulnerabilities in their adjudication process.

Such information could help U.S. CIS decide what policy and procedural changes may be needed to address the vulnerabilities.

We made recommendations to the Assistant Secretary for ICE to

take specific actions related to risk management and performance

measurement, as well as monitoring and communicating significant

vulnerabilities to other agencies.

In closing, as DHS’ primary investigative agency, OI can play a

critical role in our Nation’s effort to reduce our vulnerability to a

terrorist attack or criminal operation.

While OI states that it places priority on national security, cases

considered to be directly related to national security have consumed a relatively small portion of OI resources. Applying additional risk management principles, such as conducing a more comprehensive risk assessment to identify the most significant

vulnerabilities, developing better performance measures, and enhancing its monitoring and communication activities could better

ensure that OI directs its finite resources to areas of highest priority.

Mr. Chairman, this concludes my statement, and I would be

happy to answer any questions that you or other members of the

subcommittee may have.

[The prepared statement of Mr. Stana follows:]

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Mr. SHAYS. Thank you, Mr. Stana. Mr. Skinner.

STATEMENT OF RICHARD L. SKINNER

Mr. SKINNER. Mr. Chairman, members of the subcommittee,

thank you for having me here today.

I will focus my remarks on the results of our assessment of the

proposal to merge Customs and Border Protection [CBP], and Immigration and Customs Enforcement [ICE].

We issued a report on this subject in November 2005. The objective of our review was to determine the extent of CBP and ICE coordination problems, and whether a merger of the two organizations would solve those problems.

We interviewed more than 600 individuals from public, private,

and non-profit sectors in 10 cities across the country and at 63 CPB

and ICE facilities.

Since neither CPB nor ICE was given responsibility for the full

scope of enforcement activities and because they both rely heavily

on each other for assistance, it is imperative that they coordinate

very closely.

However, as illustrated in our report, CBP and ICE were not coordinating their efforts in an effective manner.

We made 14 recommendations aimed at improving coordination

and integrating operations. We identified coordination challenges

that affected apprehension, detection, and removal operations; investigation and investigative operations; and intelligence activities.

With respect to apprehension, detention, and removal operations,

organizational priorities have undercut coordination between CPB’s

alien apprehension efforts and ICE’s detention and removal efforts.

The failure to coordinate interagency planning and budgetary

processes has contributed to a resource imbalance.

CBP’s front-end apprehension capabilities grew, and ICE’s downstream detention and removal capabilities did not. This imbalance

placed a strain on ICE’s detention and removal resources and reduced the impact of CBP’s alien apprehension.

With regards to investigations, the separation of enforcement

functions between CPB and ICE hampered the coordination of

interdiction and investigative efforts.

Now that inspections and investigations are in separate organizations, ICE does not accept as many cases or case referrals from

CPB. Likewise, CBP relies less on ICE to investigate the violations

it uncovers.

Due to the decline of ICE’s acceptance rate, CPB has reportedly

referring more cases to other law enforcement authorities, such as

the Drug Enforcement Administration, without first notifying ICE.

Also, in the past, investigators and inspectors often develop referrals jointly. Now many of these referrals reportedly never get to an

ICE investigator. Instead, CBP is now using its own investigative

resources to investigate many cases.

Unless there is very close cooperation and coordination, the use

of internal CBP investigative resources could adversely impact

ICE’s investigative activities even further.

Finally, with regard to intelligence activities, although CBP and

ICE intelligence requirements overlap, coordination between the

two is limited.

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Both CBP and ICE require intelligence gathering regarding illegal aliens, criminal aliens, alien smuggling, drug trafficking, fraudulent travel documents, and import and export violations.

Despite their shared intelligence needs, however, the two organizations have separate intelligence structures and products. Because

the intelligence collection and analysis activities of CBP and ICE

are uncoordinated, it is difficult for intelligence analysts to connect

the dots to create a comprehensive threat assessment for border security.

In conclusion, to resolve the coordination problems, we were prepared to recommend that ICE and CPB be merged. While we were

conducting our review, however, the Secretary, after conducting his

own review of the Department’s operational and organizational

structure, announced six new imperatives. One of the imperatives

was to strengthen border security and in interior enforcement

through an integrated mix of additional staff, new technology, and

enhanced infrastructure investment.

Since the issuance of our report in November 2005, DHS dismantled the Border and Transportation Security Directorate. CBP and

ICE now report directly to the Office of the Secretary. That created

among other things the Secure Border Initiative, the ICE-CBP Coordination Council, and the Office of Intelligence and Analysis.

These efforts are intended to address some of the coordination

issues that we identified in our report and to help better integrate

CBP and ICE operations.

From what we know, of these emerging efforts, we believe that

the Department is taking the necessary steps to addressing the coordination problems. However, these steps are still works in

progress. We have not yet had the opportunity to assess whether

the actions taken or proposed actually have been or will be effective

in improving coordination between CPB and ICE.

Because the issues are so important, however, we have pledged

to Congress that we would followup to determine how well the Department has progressed since our November 2005 report.

We expect to start early this summer.

Mr. Chairman, members of the subcommittee, that concludes my

remarks. I will be happy to answer any questions you may have.

[The prepared statement of Mr. Skinner follows:]

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Mr. SHAYS. Thank you, Mr. Skinner. Mr. Schoch.

STATEMENT OF ROBERT A. SCHOCH

Mr. SCHOCH. Chairman Shays and distinguished members of the

subcommittee, it is an honor for me appear before you today to discuss how the men and women of the U.S. Immigration and Customs Enforcement [ICE], protect the American people by identifying and closing critical border, homeland, and other national security vulnerabilities.

Among the Department of Homeland Security law enforcement

agencies, ICE has the most expansive investigative authorities and

the largest force of investigators.

Our mission is to protect the American people by combating terrorists and other criminals who seek to exploit our Nation’s borders

and threaten us here at home.

By leveraging the full enforcement potential provided by our

unique unified blend of customs and immigration authorities, ICE

agents and officers are making it more difficult for potential terrorists and transnational criminal groups to move themselves, their

supporters, or their weapons across the Nation’s borders through

traditional human, drug, contraband, or financial smuggling networks, routes and methods. As a result, ICE contributes to our national security.

Protecting national security is at the heart of ICE’s work, operations, and mission. ICE seeks to identify and close vulnerabilities

in our immigration and customs system before they can be exploited by potential terrorists.

To illustrate ICE’s national security work, I’d like to quickly

share two representative cases with you.

First, in January 2006, based on information developed by the

ICE special agent in charge in San Diego, along with the operational alliance tunnel task force, we discovered a highly sophisticated cross border tunnel that extended nearly a half mile, from a

warehouse in Tijuana, Mexico, into a warehouse in Otai Mesa, CA.

Equipped with lighting, ventilation, cement floor, this tunnel was

designed to support drug smuggling.

Substantial criminal proceeds were invested in this tunnel,

which reached a depth in some areas of 81 feet to avoid detection.

This tunnel carried significant national security implications due to

its potential use to support illegal and covert entry of persons or

weapons into the United States.

Another example: In June 2004, ICE special agents in New Orleans initiated an investigation into smuggling activities by passengers and crew members of cruise ships arriving at the Port of

New Orleans. During the course of the investigation, we identified

two individuals, Cedric Carpenter and Lamont Ranson, U.S. citizens, one a former member of the military, as being involved in

drug smuggling, distribution activities, as well as the manufacture

and sale of false documents. Through consensually monitored telephone calls, and meetings with ICE confidential informants, Carpenter and Ranson actually agreed to provide false birth certificates, Social Security cards, driver’s licenses for individuals they

believed to be members of Abu Sayyaf, a State Department designated foreign terrorist organization with ties to Al Qaeda.

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In addition, Carpenter and Ranson believed that these individuals that they were to provide the fraudulent documents to were

on U.S. watch lists. These traditional criminal investigations are a

few examples that demonstrate how ICE contributes to our national security by identifying and closing vulnerabilities that could

potentially be exploited by terrorists.

In June 2003, the Office of Investigation launched an intensive

effort to strengthen existing and, where necessary, develop new

programs aimed directly at closing the vulnerabilities exploited by

the September 11th conspirators. The 9/11 Commission found in its

final report that had the immigration system set a higher bar for

determining whether individuals are who or what they claim to be

and ensuring routine consequences for violations, it could have excluded, removed, or come into further contact with several of the

hijackers who did not meet the terms of their admitting short-term

visitors.

Some examples are ICE national security division’s compliance

enforcement unit, which has now processed over 350,000 leads for

review for potential investigations in the field for violations in the

student violators. The Office of Investigations’ Benefit Fraud Units

work closely in coordination with the U.S. Citizenship and Immigration Services to protect the integrity of the legal immigration

system by identifying fraudulent applications, systemic

vulnerabilities, and fraud trends.

When applications, fraudulent applications and trends are identified, this information is passed to the SAC offices for further investigation and prosecution.

The Office of Investigation created a visa security program,

which provides critical law enforcement and investigative expertise

to our consular officers in several overseas posts.

ICE routinely conducts comprehensive threat, vulnerability, and

consequence risk assessments of the customs and immigration systems to determine optimal application of resources.

In addition to all of our 26 special agent in charge offices having

conducted their own internal risk assessment, threat assessment,

headquarters Office of Investigation staff has coordinated assessments in a variety of areas to enhance our national security.

Threat assessments relate to financial crimes, identity benefit

fraud, and the illegal export of arms and strategic technology. The

results of these assessments are driving and shifting investigative

resources within the SAC offices, and expanding existing certified

undercover operations, as well as assisting the field offices in identifying new and emerging threats and vulnerabilities within their

respective areas of responsibility.

These risk assessments serve as a foundation in the creation of

outcome-based performance goals and measurement tools to assess

the degree in which ICE is able to fill its mission relative to identified threats.

My colleagues at ICE are grateful for the chance, and I am grateful for the chance to serve the American people, and on their behalf

I thank you for your continued support of our ongoing operations.

I would be pleased to answer any of your questions.

[The prepared statement of Mr. Schoch follows:]

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Mr. SHAYS. Thank you. I’m going to start by having Mr. Van

Hollen ask the first questions.

Mr. VAN HOLLEN. Well, thank you, Mr. Chairman. Thank all of

you for your testimony this afternoon. Let me begin with Mr.

Schoch, if I may, because you heard the testimony of the other gentlemen. You’ve seen the GAO report. You’ve seen the criticism that

there’s been lack of cooperation between, you know, Customs and

Border Patrol on the one hand and ICE on the other, and we all

know in this committee under the leadership of our chairman, Mr.

Shays, has and the 9/11 Commission review obviously identified

this lack of information sharing as one of the problems our country

faced leading up to September 11th.

That was throughout the whole government, and here we have

reports that say there’s not even adequate coordination and information sharing between two, you know, agencies within the same

department that was created after September 11th with the express purpose of trying to improve coordination, and so it’s an

alarming report, and analysis, and I would just—I wonder No. 1,

do you agree with their analysis, and No. 2, if so, what recommendations—what steps are you taking to make changes?

Mr. SCHOCH. Not necessarily agree with their analysis. Let me

speak to a few things. I have been leading in the National Security

Division at ICE within the Office of the Investigations. Specifically,

my counterparts at CBP in the Office of Anti-Terrorism have a

number of efforts that we are doing to coordinate our operations to

make sure that we are, you know, absolute harmony.

One is we staff the National Targeting Center that CPB runs,

and we actually have ICE agents 24/7 operating there to make sure

that any identifiable issue that is raised in the field all comes

through there, and we are able to coordinate.

We actually have a working group. We meet monthly with my

counterpart within the Office of Anti-Terrorism. We have working

groups to look at information sharing. We have come up with protocols to deal with threat information and coordinating those, you

know, systematically, synchronizing what responses we have.

There are a number of efforts that ICE and CBP together are making to try to harmonize our efforts.

Mr. VAN HOLLEN. Right. Now, were these efforts in place before

the report done by the GAO and the Inspector General’s office or

do they predate that or are they responses to it?

Mr. SCHOCH. A number of their recommendations have been

looked at, and I know, for example, coordination council are in effect, but a number of these things myself we have been doing for

as long as ICE and CBP have been two separate agencies within

the Department. So these are ongoing efforts that we have been

making, and I have personally been involved with.

Mr. VAN HOLLEN. Well, putting aside the recommendation to

merge the two agencies, because, as was mentioned, the Secretary

Chertoff’s own reorganization plan may have made that particular

recommendation moot, although I could still see how you could

merge the two down the road. I’m not sure, but anyway, with the

exception of that, are there any of the recommendations that have

been raised by either of the other gentlemen to your right that you

do not intend to implement?

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Mr. SCHOCH. Let me talk specifically about the GAO report on

our priorities. I think we actually, and I have been a part of the

number of GAO audits and investigations if you will, and we find

a lot of value in them, and I think this is the case here. Some of

their recommendations to look at potentially a system, for example,

on communicating back vulnerabilities, looking at better risk management—more comprehensive, while we are doing several threat

assessment, risk assessment, they have made several findings that

we actually looked at and willingly are going to be trying to look

at some different changes.

For example, the data that they used to come up with the percentages they are using on national security, while we respect how

they arrived at that, I disagree with the amount of resources we

are putting, as it almost characterizes it as a small percentage

when I would argue that everything that ICE almost is doing is in

an effort to make sure that we do not ever relive a September 11th

type event.

So there are a number of great recommendations that we are

looking at.

Mr. VAN HOLLEN. Are there any that they have proposed that

you do not intend to implement?

Mr. SCHOCH. I am more familiar with the specificity in the GAO.

I looked at all of those, and I think we are evaluating those, and

look at those favorably. In the merger document, I am not too familiar. I would have to look at those, and I know a lot of those

come up to the department level.

Mr. VAN HOLLEN. OK. Thank you. If our other witnesses could

just respond to.

Mr. STANA. Well, I will start, since we talked about the GAO report. I think the kinds of things that Bob Schoch mentioned are on

target. I think you do want to create the mechanisms and the cross

walks between organizational structures so that you can coordinate

more closely. I would also say at the same time, though, sadly, this

is nothing new between ICE and CBP. We have been looking at coordination issues for years, and I know the legacy INS this was a

constant problem, even when the people were standing side by side

at the different booths at the ports of entry. INS would put three

people out. Customs would say, well, if you are only putting three

out, I am only putting three out at some ports of entry.

So this is nothing that is new or that was brought on by ICE.

I would say this about the merger issue, though. Usually when

organizations have mergers or they move the boxes around the organizational tree, it is most successful when it is done for one of

two reasons: either your strategic plan has changed or your mission

has been redefined. If you are moving the boxes around the organizational tree to handle basic management issues, like coordination,

lack of guidance, training, information systems, financial systems

are not working right. You are trying to move boxes around to fix

management problems and that doesn’t work.

In the 1990’s, INS did that three times and it got to the point

where the agents in the field didn’t know which guidance was operational anymore, because they were constantly reorganizing.

So my suggestion would be if ICE needs anything, it is stability

for a period of time and leadership and now with Julie Myers in

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charge and we are going to have a new Customs Commissioner

shortly, there is an excellent opportunity now to bring good management and leadership to bear to break down some of these coordination problems.

Mr. VAN HOLLEN. Thank you. Mr. Skinner, do you have any response?

Mr. SKINNER. Yes. I could say that the communications with the

Deputy Secretary and as late as last night, and with Julie Myers

and people in CBP, they have, in fact, agreed with all. We made

14 recommendations. They have agreed with all 14 recommendations. In many cases, they have claimed that they have already

completed action on some of these recommendations. For example,

the creation of a CBP-ICE Coordination Council.

We haven’t had the opportunity to see if, in fact, the implementation of the recommendations have had a profound impact or the desired result, and that is something we are going to do this summer.

Mr. VAN HOLLEN. Right.

Mr. SKINNER. But as far as agreeing with our recommendations

and taking actions, yes, they have.

Mr. VAN HOLLEN. OK. Thank you for your testimony.

Mr. SHAYS. Thank you. I am going to thank the gentleman and

if he wants to interrupt the counsel, the counsel is going to be asking some questions, and feel free just to jump in if the gentleman

would like to.

Mr. HALLORAN. Thank you. Good afternoon.

Mr. STANA. Good afternoon.

Mr. HALLORAN. Mr. Stana, in your testimony, you cite as an ICE

mission to protect national security without diminishing the legacy

missions. Is that realistic given the diversity of that portfolio and

is it the same question—is it true to say that some or if not all of

those legacy missions could consume almost all the investigative

resources?

Mr. STANA. You know they have a large number of missions, as

you know, and it is difficult to spread 5,600 investigators across all

of those missions and keep everyone happy and all of them well

staffed.

But it is like any agency that has fewer people than it has missions: You have to pick and choose.

Mr. Schoch is in charge of the National Security, and that is

where the 10 to 15 percent of investigative resources that go to the

most directly linked to national security investigations are done.

And that is a good thing.

Now, within that, maybe not all of them have a direct link at the

end of the day, when the results are in, but at least, as far as the

subject matter goes, it does seem to comport with the overall mission of DHS.

It is the 85 to 90 percent that are in other areas that I would

take issue with in some cases the necessity to keep pursuing at the

same level we are pursuing, given that you have finite resources.

For example, well over half of the total investigative cases that

OI does are related to Class III drug investigations. Class III, these

are the least important drug investigations. Do we need to do them

all? Should they respond to every port call that CBP makes to come

and investigate some sort of a seizure that they make. Perhaps this

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is part of the coordination problem that Mr. Skinner mentioned.

They are not going to respond to every case. They are going to respond to the most important cases, as they should.

So, I would suggest that there is some room to reallocate resources, but not to neglect every mission or any particular mission.

Mr. HALLORAN. Right. To what extent would you say that imbalance you cite is function of structure; that they say at over at DOD

if all you have is a hammer, everything looks like a nail. If your

office is next to the port and that is your bread and butter business, as long as you are there, isn’t that what you’re going to do?

Mr. STANA. Well, there is a good deal of that, you know, frankly.

If what you have done is drug cases in the San Diego sector for

years and years and years, and you are used to calling ICE or its

predecessor to come and investigate a case, that is what you are

going to do. If you have 10 groups in a district that has done drug

investigations for years, that is what you will do.

What a comprehensive risk assessment and management tool

would do it would help to break out of the mold of doing what you

have always done.

Mr. HALLORAN. Thank you. Mr. Skinner, could you talk a little

more about the kind of mutuality of ICE, CBP co-dependence. Just

walk a case through that process where they have to hand off as

oppose to ones they might pursue separately.

Mr. SKINNER. For example, an interdiction at the port of entry,

and car is pulled over and it could be loaded with illegal drugs or

likewise—it could even be between ports of entry through our Border Patrol. In those cases, historically, when INS, for example, and

Customs, before the reorganization, the inspector would discover

the drugs, turn over the—or make the referral to the investigator

who then would take the case and run with it. Often times they

may even do it jointly.

As it stands now, the ICE or the investigators are not always

being responsive, and it may go back to the fact that there is a

breakdown in risk assessments. CBP, their priorities may be to

intercept drugs, whereas ICE now their primary mission has been

focused elsewhere, so they are not reacting, so that is creating

some type of frustration between the two groups.

CBP now in turn is out of frustration are taking these cases as

opposed to giving them to the ICE investigator are now giving

them to other law enforcement officials, be it the DEA, the Drug

Enforcement Administration, or the local police or State police or

whoever is most to take the case or whoever is most convenient,

and it may not even inform ICE.

Mr. HALLORAN. Are there memoranda of understanding between

ICE and CBP as to how some of that might be handled?

Mr. SKINNER. There are memoranda of understanding, but it is

not clear as to whether everyone is, in fact, has a full understanding of what those mean. They are open to interpretation from port

to port to port, and our review found out there was extreme frustration, particularly coming from the CBP side that ICE was not

being reactive or responsive to their investigative needs. So now,

they have gone to other law enforcement agencies.

As a matter of fact, they have actually——

Mr. HALLORAN. Or doing it themselves?

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Mr. SKINNER. Now, they have started a pilot program where they

are going to be doing it themselves. This can create problems, because we are not bringing a synergy to the efforts here. If we are

looking at national security issues, and if we are breaking it down

into stovepipes, we are not able to and collectively see if there is

some type of systemic or trend in drug trafficking or human trafficking that which, in fact, could be supporting a terrorist activity.

And by not cooperating in this regard, I think is the danger that

we face; that we are losing the synergy that could exist here.

Mr. HALLORAN. So, Mr. Schoch, is the Coordinating Council

enough? How is that going to break through the kind of cultural

barriers that Mr. Skinner just described?

Mr. SCHOCH. I think it is a start first of all. Second, there is clear

guidance that is out there to all of our employees about response

to the ports and about calls from CBP. For example, I actually put

out, and I authored and it was put out by a director, a requirement

of 100 percent response to every request from Customs, Border Protection on a watch list hit. Any person entering the United States

that hits the watch list comes into a name match, if you will, an

ICE agent is mandatory 100 percent response to that. There is

clear guidance on that. We respond 100 percent on those, and we

invest a lot of man hours into that function, because we fill, you

know, the significance of that.

Within responses to the drug investigations or a drug interdiction, those investigations often start with the interdiction and a

cultivation possibly of a person that was arrested, information they

may have, phone numbers they may have. There is a lot of benefit

to those responses, and I don’t know the specific guidance that is

out, but there is clear guidance between both the OFO, the Office

of Field Operations, which affects the inspectors, and then the Office of Border Patrol. So there is guidance out there, and issues

that may come up, come up through our SACs, come up to the programs—we have an entire program on contraband smuggling that

deals with the drug enforcement at ICE headquarters responsible

for that.

Mr. HALLORAN. How old is that 100 percent watch list?

Mr. SCHOCH. I would say it goes back over 2 years I believe.

Mr. HALLORAN. That is my point again. Since our hearing on visa

revocations, which I think was May or April 2004, since then?

Mr. SCHOCH. It is—I would——

Mr. HALLORAN. The question is would it capture a visa revocation action at this point almost automatically?

Mr. SCHOCH. Yes.

Mr. HALLORAN. OK. Finally, let me ask Mr. Schoch again, the

apparent conflict between the decentralized nature of your operations that your offices are out in the field. You’ve got a special

agent in charge that can drive the investigative priorities, and then

you have these headquarters initiatives. Your testimony mentioned

the workplace inspection priority for critical infrastructure sites,

so-called.

Did that come out of your office and was there resistance in the

field to that or how was that rolled out?

Mr. SCHOCH. Actually, it is more of a collaboration between the

field offices, the 26 SAC offices, and headquarters. A threat assessVerDate 11-MAY-2000 10:57 Sep 19, 2006 Jkt 000000 PO 00000 Frm 00066 Fmt 6633 Sfmt 6633 D:\DOCS\29581.TXT HGOVREF1 PsN: HGOVREF1
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ment was done actually in 2004, and the SAC offices themselves

identified critical infrastructure protection as a vulnerability that

needed to be addressed. Then the office at headquarters, working

with that information, was able to shape policy and basically have

a uniformity to that and put that guidance out to the field. There

is guidance that says that we look at national security and we look

at public safety as the two utmost priorities in that program, and

examples of cases where we’ve had individuals with fraudulent documents trying to get into White Sands Missile Base; people that

were translators actually working at Fort Bragg, NC, actually

teaching, you know, our special forces. Those are cases that, while

they were not included in the GAO study as national security, we

find threats, significant threats to our national security, and hundreds of cases in 2005 were conducted in these areas.

That is a uniform policy across the board.

Mr. HALLORAN. So finally, the threat assessment you referenced

in that regard is that written, a single document that we might

get?

Mr. SCHOCH. It was conducted in 2004. I would be happy to provide you with that.

Mr. HALLORAN. Thank you.

[The information referred to follows:]

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Mr. SHAYS. Mr. Schoch, how many employees do you have?

Mr. SCHOCH. ICE has 5,600.

Mr. SHAYS. Right. And they are located in how many places?

Mr. SCHOCH. We have 26 field offices.

Mr. SHAYS. When we combined this office into one, did we maintain the same number of employees and just give them to the agency or did we weed out a number along the way? In other words,

when we put A and B together, do you have the same number?

Mr. SCHOCH. I would say within, you know, maybe 100 or plus

or minus, there’s generally about the same number.

Mr. SHAYS. You know when you read about what have been the

legacy, the drugs, financial dealings, general immigration, smuggling, human trafficking, document fraud, worksite enforcement, I

look at that and I say that is pretty serious stuff, so logically you

don’t want to give up on them. But I am wrestling with why it has

to take a long time to begin to break out of this legacy and begin

to think anew and act anew. That is what I am wrestling with, and

so explain to me why that is a challenge. Is it old cases that stay

on the books? Weren’t you able and aren’t you able to just simply

say, you know, we are going to devote more time in this way, and

is it that they don’t have proper schooling? What is it?

Mr. SCHOCH. Do you mean toward national security types?

Mr. SHAYS. Absolutely. That is what I mean.

Mr. SCHOCH. I think because, and while we appreciate the GAO

study, we take exception to some of their findings, again, critical

infrastructure type cases were not included in that 10 to 15 percent

number that they arrived at. The case on the tunnel, for

example——

Mr. SHAYS. But basically, both the Inspector General and GAO

pretty much come to the same conclusion; agreed?

Mr. SCHOCH. I don’t know if they reached the same conclusion

on our focus on national security.

Mr. SHAYS. Well, why don’t we have them to explain?

Mr. STANA. Well, I would start off by saying we stand by the

number. In fact, there was a survey done of actual ICE investigators on how many of their cases actually involved a national security nexus, and we could argue about how well the survey was

done, but the fact is that the agents themselves characterized it as

far less than 10 to 15 percent.

Mr. SHAYS. OK.

Mr. STANA. So we can play with that——

Mr. SHAYS. So you felt you were being generous?

Mr. STANA. No, I think what we used information that on was

text, and we made a point at one time that it was far lower, but

at the end we weren’t really satisfied with the methodological rigor

that was used to survey the agents or the investigators themselves,

so we will, for the sake of discussion, we will say it is 10 to 15 percent, but just know that counts what—how you characterize a case,

not necessarily case results.

Mr. SHAYS. OK. And by case results, you mean what?

Mr. STANA. Well, I mean if you start off an investigation based

on a tip that something may involve a terror organization, and you

get into it and you find out no, it is something less than that. It

still may be categorized for the purposes of the management sysVerDate 11-MAY-2000 10:57 Sep 19, 2006 Jkt 000000 PO 00000 Frm 00073 Fmt 6633 Sfmt 6633 D:\DOCS\29581.TXT HGOVREF1 PsN: HGOVREF1
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tem as having a nexus to national security, but at the end of the

day, it really does not. I’m not saying that is all of their caseload,

but it is a substantial amount of their caseload.

Mr. SHAYS. Mr. Skinner, how do you and Mr. Stana disagree or

do you disagree on your analysis? Where would you be different?

Mr. SKINNER. Well, I can’t say we disagree, because we didn’t do

an analysis per se of how much time was being spent on national

security or terrorist activities versus the more traditional

interdiction——

Mr. SHAYS. Right.

Mr. SKINNER [continuing]. Activities. However, during the course

of our review, in our interviews with over 600 individuals out the

field, we did learn that the ICE is a big participant in the Joint

Federal Terrorist Task Force. As a matter of fact, throughout the

country, they participate on this. But there was also a degree of

frustration and that is why invest so much of our time and resources in a terrorist investigation when in the long run, it is going

to be turned over to the FBI. So there is this institutional competition that exists as to who has primacy for these investigations. I

know there was frustration voiced in our interviews with many of

these agents out there that they were not inclined to get real excited about these cases, knowing that if they invest any time in

these cases, they are going to be turned over to the FBI.

At the same time, those that we interviewed were very enthusiastic about the terrorist task force that exists across the country,

and ICE participates very, very—or a major player in all those task

forces as well as other law enforcement agencies.

Mr. SHAYS. What logically do all three of you think it takes an

organization like the Department of Homeland Security to try to

benefit from the synergies that occur when you bring disparate

groups that have a lot of commonality, but were in different agencies and now they are together? I sometimes feel like we are criticizing DHS without really being certain that we are accurate. I

mean are you generally in your other work seeing some benefit to

this bringing together into this agency, admittedly 180,000 people?

And, if so, would you say that ICE is ahead of schedule compared

to others or behind, not schedule, is behind others in beginning to

benefit from the creation of this new office? I mean we created a

lot of new offices. We brought a lot of people together. Is ICE ahead

of the curve or behind? Are they ahead of most? Are they behind

most? Are they somewhere in the middle? How would you describe

it?

Mr. STANA. I will start with me. I would say there was a benefit

to bringing the groups together, if for no other reason than it provided a focus and a nexus for investigations on national security

and terrorism, and I think there is a value there that you don’t see

everyday, but the kinds of cases that Bob Schoch talks about in his

prepared statement underscore the benefit of bringing them together.

Second, I would say with respect to ICE, of all the components

of DHS that I have been——

Mr. SHAYS. Right.

Mr. STANA [continuing]. Examining, I think they had the longest

way to go. If you look at CBP, they have put together two units

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that had basically a similar function or a function that meshed a

little bit better. The Coast Guard came over, you know, in one

piece. Secret Service came over in one piece. FPS came over. ICE

came together where they had to spend an awful lot of time merging disparate cultures and functions. Even the agents themselves

weren’t even graded the same, so you had to get over lots of personnel issues, management information issues, and I think for the first

couple or 3 years, they paid a price for that.

Like I said earlier, I think the best thing we can do right now

is let the agency mature; let it stabilize. It has new leadership.

Hopefully, it will be strong leadership to take care of the kinds of

management problems we have talked about.

Are they on schedule? Probably. Most people think that it takes

5 to 7 years, and the kinds of coordination mechanisms that Bob

mentioned are a step in the right direction. We think with more

emphasis on identifying the vulnerabilities they ought to be addressing, they would be in much better shape.

Mr. SHAYS. Great. Thank you. Mr. Skinner.

Mr. SKINNER. I tend to agree with Mr. Stana. For one thing, I

think the synergy that is brought to the table by forming the Department of Homeland Security and the ICE and CBP can have a

tremendous impact on our ability to attack terrorism as well as our

legacy activities. But I think we are nowhere near where we should

be. I agree that CBP came out of the chute a lot faster. They were

better organized. They implemented a one face at the border, and

they had the funding to support their activities; whereas, ICE

started in the hole. They immediately had budget problems, accounting problems, and they had severe cultural problems, those

that were the investigative people as we alluded to earlier are accustomed to investigating human trafficking. They don’t want to do

anything else—versus those that are accustomed to investigating

narcotics trafficking. It is very hard to break them out of that mold

to do other things. They have a long way to go.

Are they where they should be? That is hard to tell. Again, I

think they started in the hole——

Mr. SHAYS. No, basically, they are not where they should be, but

you think they are getting there.

Mr. SKINNER. Yes, I do.

Mr. SHAYS. OK. Mr. Schoch, would you have any comments on

anything we have——

Mr. SCHOCH. I would, sir. I think I would look at the benefits,

and having one border security investigative agency I think is the

biggest benefit that I have seen, having been a member of INS for

13 years. And the financial expertise, in particular, the former Customs had used for years to combat, you know, drug cartels, that

now and almost immediately was applied to the legacy INS type

human trafficking, human smuggling, organizations, identity benefit fraud. We are not just going out and arresting the person. We

are looking at their assets and really hurting them in the pocketbook, where the financial criminal gain is at.

Also, what was mentioned is we weren’t co-located different disparate grades, and the budget. I think a lot of those things are beginning to come together and I think I personally believe that we

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are heading in the right direction as an agency, with new leadership and so forth.

Mr. SHAYS. Thank you, Mr. Schoch. Mr. Van Hollen, do you have

any last questions? As much as time as you want.

Mr. VAN HOLLEN. Thank you, Mr. Chairman. Yes, I have a question for Mr. Schoch regarding the extent to which ICE is using its

authority in terms of admitting people to the country to exclude individuals because they may espouse political positions that the administration does not like. We are going to have testimony a little

later from a representative from the ACLU and unfortunately I

have another meeting, so I am not going to be able to hear that.

But I would like to get your response to that. I understand that

as part of the Patriot Act, in 2001, the Congress included a provision that allows people to be excluded if they have essentially been

encouraging people to support terrorist activities overseas. I understand that is the provision in the law. But I do want to focus on

a particular case which they raise in their testimony of Professor

Ramadan and ask you specifically on what grounds, on what basis,

specifically, did you exclude him from coming to the country?

Mr. SCHOCH. Well, first of all, let me just try to clarify a couple

things. The Customs and Border Protection makes determinations

on admissibility. Their inspectors are on the front line making

those determinations of whether or not somebody has the lawful

right to be admitted into the United States. The Ramadan case in

particular is being litigated now at the Department level I believe,

and I am not at liberty to even discuss that. Any ICE investigation

that we conduct, and Mr. Skinner pointed this out, we have actually the largest number of ICE agents, of agents, that contribute

out of any Federal agency to the Joint Terrorism Task Force. We

have almost 250 ICE agents on the Joint Terrorism Task Force.

That is only second to the FBI. Any investigation that we come into

that is open, where we believe there is any type of a threat to our

national security—terrorism and so forth—potential individuals

can get on watch lists; and, therefore, that watch list could trigger

some type of an admissibility issue.

But as far as Ramadan, I can’t with specificity, I cannot speak

on that, because that is at the Department level as well as CPB

makes those determinations on admissibility into the United

States.

Mr. VAN HOLLEN. All right. Apart from being placed on a watch

list, and as I understand your testimony, you can’t comment today

as to whether or not he was on a watch list; is that correct?

Mr. SCHOCH. That is right.

Mr. VAN HOLLEN. OK. But apart, just, you know, theoretically,

apart from someone being placed on a watch list, is it the policy

of ICE to deny anyone entry in the country based on their expression of political views other than someone who may have, you

know, espoused terrorism?

Mr. SCHOCH. I think any of the decisions that are made in any

of those areas are coordinated with our council and those again, the

final admissibility decisions are made by Customs and Border Protection. ICE doesn’t make determinations of admissibility, you

know because the investigators are not, you know, at the front line

as the inspectors are making those determinations.

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Mr. VAN HOLLEN. All right. So that is in the other——

Mr. SCHOCH. That is correct.

Mr. VAN HOLLEN [continuing]. Agency that we have been talking

about today.

Mr. SCHOCH. Right.

Mr. VAN HOLLEN. Right. Thank you, Mr. Chairman.

Mr. SHAYS. Thank you, and we are going to just have counsel ask

one more line of questions, and then we are going to get to our next

panel.

Mr. HALLORAN. Yes. If you could talk a little more about the active versus passive way in which ICE determines the national security nexus, the kind of the definitional issue that you disagree with

GAO about a little bit. So the question might be better put how do

you move from the case-by-case or line of business analysis of national security to a more comprehensive assessment of

vulnerabilities that you need to address by proactively applying resources to them.

I mean you were going to mention before the tunnel case, and

its national security implications. But nothing in your testimony

says you had information at hand that says it was a national security threat; it was a drug route primarily; is that correct?

Mr. SCHOCH. Right.

Mr. HALLORAN. And so you kind of take credit for the weather

there, and say that it could have been used for national security.

So how do you move from kind of a what I think you would have

to agree is in some respects a reactive posture to finding national

security implications in cases, actually focusing resources on what

does have a national security threat?

Mr. SCHOCH. I will give you an example specifically proactive. I

manage the Arms and Strategic Technology Unit, ICE has the

broadest export authority of any Federal agency, of any law enforcement agency. We look at violations of technology, very technical technology leaving this country that has to have an export license, by Commerce, for example, and also our military equipment—generation three night vision, for example or F–14 parts.

We conducted in the fall of this year, we began and initiated a comprehensive—through all the 26 SAC offices a threat assessment to

identify the resources that we are putting toward that program in

the field, the threat that the SAC offices each felt that what were

the threats, what were the vulnerabilities, and again very similar

to how I mentioned the worksite was done, we worked in collaboration with the field offices and now, as a result, we have created different adjustments in resources in certain SAC offices as the result

of that. More resources had to be put toward those investigations,

as well as now we are driving national initiatives in certain areas

as a result of that threat assessment. Very proactive, driven by

headquarters, and that again, just to kind of exemplify some of the

things that we are doing.

Mr. HALLORAN. Thank you.

Mr. SHAYS. Is there anything we need to put on the record before

we go to our next panel? Is there any question you wish or happy

we didn’t ask that I would like you to ask? Nothing? OK, gentlemen. Thank you very, very much.

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Mr. SHAYS. Our second and last panel is Dr. Joseph Ryan, Chair

and professor of criminal justice and sociology at Pace University;

as well as Ms. Caroline Fredrickson, director, ACLU, Washington

Legislative Office; and Mr. Joseph Webber, Special Agent in

Charge, Retired, Bureau of Immigration and Customs Enforcement, U.S. Department of Homeland Security.

By the way, I have my jacket off. If you gentlemen would like

to take your jacket off as there is no TV here, we can relax a little

bit. If you would like your coat off, feel free; your jacket off, you

are more than welcome to. Ma’am, as well.

[Witnesses sworn.]

Mr. SHAYS. Note for the record, our witnesses have responded in

the affirmative, and we will start with you, Dr. Ryan, and thank

you all three of you for being here.

STATEMENTS OF JOSEPH F. RYAN, PH.D., CHAIRPERSON, DEPARTMENT OF CRIMINAL JUSTICE AND SOCIOLOGY, PACE

UNIVERSITY; CAROLINE FREDRICKSON, DIRECTOR, WASHINGTON LEGISLATIVE OFFICE, AMERICAN CIVIL LIBERTIES

UNION; AND JOSEPH R. WEBBER, SPECIAL AGENT IN

CHARGE (RETIRED), BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT, U.S. DEPARTMENT OF HOMELAND SECURITY

STATEMENT OF JOSEPH F. RYAN

Dr. RYAN. Chairman Shays and members of the subcommittee,

thank you for inviting me to testify.

In your invitation you asked me to provide my expertise on the

application of risk management and outcome-based performance

monitoring strategies that will permit the Bureau Immigration and

Customs Enforcement resources to be used effectively in the interest of national security.

You also asked that I offer recommendations specific to ICE.

Since I was not given access to the GAO report, my recommendations are not necessarily specific to ICE or can apply to any government agency.

In terms of identifying risk, the definition that I prefer is one

used by financial managers: Risk is a chance that something will

occur, come out worse than planned. In reality, police assume the

same in terms of risk. They know and plan that crime will occur

and hope that the worst does not occur. Unfortunately, the worst

crime did occur on September 11, 2001.

One of the best ways you can conduct risk assessment is to follow

Yogi Bera’s maxim: You can observe a lot by watching. Yes, it can

be that simple, but unfortunately in the public sector, you encounter difficulties. Risk management becomes difficult when there is

no consensus——

Mr. SHAYS. Did Yogi ever say that, really?

Dr. RYAN. Yes.

Mr. SHAYS. He is brilliant——

Dr. RYAN. I did research it.

Mr. SHAYS. He is brilliant. The guy is brilliant. There are too

many.

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Dr. RYAN. Wonderful practice. Risk management becomes difficult when there is no consensus as to what you are trying to

achieve or how you are going to manage the risk you identify. A

major component in developing effective risk assessment requires

leadership that recognizes the need for bringing all stakeholders together to jointly assess risk. At times, risk management requires

making tough decisions. Inherent in public decisionmaking is that

you cannot please all the people all of the time.

For example, the New York Times recently provided insight as

to how the New York City Police Department claimed it was successful in managing large demonstrations that cause significant

damage in other cities.

Unfortunately, some of these strategies have been criticized for

inhibiting freedom of speech.

Intricately related to risk management is outcome-based performance monitoring. It is one of the tools that can be used to help

you know if you have accomplished what you want to achieve. Outcome-based performance monitoring is, in reality, performance

measurement. It involves measurement on a regular basis of the

results and efficiency of services or programs. It also includes using

results to make improvements in the organization and in the way

it delivers its services.

Performance management is quite simple. The real challenge lies

in data collection and analysis, which, in law enforcement, has

been notoriously poor. Data collection in law enforcement is possible. New York City’s COMSTAT effort is just one example. Key

in this strategy is timely and accurate crime reporting.

COMSTAT involves meeting with commanders who are expected

to be aware of local crime conditions, and to explain what they are

doing to address them. If you use performance measures effectively,

you can manage for results and improve the services that the organization provides and the morale of all involved.

One of the first problems encountered with productivity measures is that no one likes to be assessed. It is no longer an issue

of whether performance measures should be conducted. Citizens expect results.

One of the most important strategies that a leader needs upon

assuming a command position is define the agency’s vision and

mission statements. This statement tells you what the organization

hopes to accomplish and where it should be heading. The key to

overcoming resistance and effecting change is found in an agency’s

vision and mission statement. It is important to gauge the people

most likely to be affected; that is, the ones who are already involved and who have the most at stake in getting the job done

right.

You have to seek their advice and give them the power to fix

what they, more than anyone else, know needs fixing.

When reframing an organization to achieve an agency’s vision

and mission, a leader needs to take a holistic view of all the issues

that relate to the organization and implement changes that will

move the agency forward.

September 11th changed the way law enforcement needs to operate. We are in a time of crisis and uncertainty. Leadership at this

time in ICE is imperative.

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In conclusion, I would like to offer the following five recommendations that I believe will help ICE effectively deploy its resources to enhance national security:

ICE should develop a vision and mission statement for their

agency. It is important that key stakeholders be involved in determining what they should be accomplishing and how it should be accomplished. The vision and mission statements should be shared

with all within ICE and training should be developed that will provide guidance on how the goals will be achieved. Once a consensus

is developed for ICE’s vision and mission statement, key stakeholders within ICE should begin to assess the risk they face.

An outcome-based performance monitoring system should be developed that parallels the vision and mission statement in an effort

to ensure that ICE is achieving its agreed upon goals.

Last, ICE should identify key data elements that can be used as

part of its outcome-based performance monitoring strategies, which

can be used to improve the resources needed to enhance the national security. Thank you, and I am available for your questions.

[The prepared statement of Dr. Ryan follows:]

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Mr. SHAYS. Thank you, Dr. Ryan. Ms. Fredrickson.

STATEMENT OF CAROLINE FREDRICKSON

Ms. FREDRICKSON. Chairman Shays, distinguished members of

the subcommittee, on behalf of the American Civil Liberties Union,

I am very pleased to appear before you today.

The Department of Homeland Security’s Bureau of Immigration

and Customs Enforcement and the State Department have resurrected the discredited practice of ideological exclusion, the practice

of denying visas to non-citizens whose politics the government dislikes.

I respectfully submit to this subcommittee that attempting to

suppress constitutionally guaranteed freedom of speech and freedom of association is not an effective use of ICE resources. It is not

in the best interest of our national security and tramples Americans’ first amendment rights.

We believe it is contrary to fundamental American values regarding freedom of expression as protected by the first amendment of

the Constitution for the administration to suppress the exchange of

ideas between Americans and people of different national origins

and dissenting beliefs simply because they are different.

Ideological exclusion is a term of art, but its impact is real. The

Federal Government is excluding people to prevent American citizens and residents from participating in conferences or exchanges

of ideas with people whose ideas the administration finds distasteful.

By regulating, stigmatizing, and suppressing lawful speech, the

provision skews and impoverishes academic and political debate inside the United States. It creates artificial barriers. It deprives

Americans of information the need to make responsible and informed decisions about matters of political importance.

In particular, I would like to draw the subcommittee’s attention

to the Federal Government’s exclusion of Dr. Tariq Ramadan, a

Swiss citizen and arguably the most the prominent and respected

European scholar of the Muslim World.

The Bush administration’s decision to exclude Professor Ramadan stifles intellectual exchange about Islam and the Muslim

World precisely at a time when robust dialog and debate about

America’s international policies and commitment to freedom and

peace are of extraordinary importance to our Nation’s future.

Ramadan, has ostensibly, but wrongly, been excluded under a

provision passed in 2001 through the Patriot Act. The provision

added to the list of aliens ineligible to receive visas those who have

used their ‘‘position of prominence within any country to persuade

others to support terrorist activity or a terrorist organization in a

way that the Secretary of State has determined undermines the

United States’ efforts to reduce or eliminate terrorist activities.’’

The ideological exclusion provision now renders inadmissible any

alien who has ‘‘endorsed or espoused terrorist activity or persuaded

others to endorse or espouse terrorist activity or support a terrorist

organization.’’

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voked the provision to exclude and stigmatize prominent critics of

U.S. foreign policy.

The government revoked Professor Ramadan’s non-immigrant

visa in August 2004 under the ideological exclusion provision, preventing him from becoming a tenured professor at the University

of Notre Dame.

Until recently, Professor Ramadan lawfully visited the United

States to lecture, attend conferences, and meet with other scholars.

The ACLU recently filed litigation challenging his exclusion and

the provision itself.

The lawsuit was filed on behalf of the American Association of

University Professors, the American Academy of Religion, and the

Pen American Center.

Professor Ramadan has published more than 20 books and over

700 articles on democracy, human rights, and Islam. After September 11th, he publicly condemned the attacks, telling fellow Muslims, ‘‘now more than ever we need to criticize some of our brothers

and say, you are unjustified if you use the Koran to justify murder.’’

While he has been critical of some U.S. policies, he has never endorsed, espoused, or persuaded others to support terrorism. He has

been a consistent and vocal critic of both terrorism and those who

use it.

While we await a ruling from the U.S. District Court in Professor

Ramadan’s case, we are pursuing a Freedom of Information Act request to learn more about the administration’s use of this provision

to deny admission to other scholars.

We believe the State Department and other government agencies

are illegally withholding records concerning the practice of excluding foreign scholars and other prominent intellectuals from the

United States because of their political views.

In November 2005, the ACLU filed a lawsuit to enforce our FOIA

request, and the case is pending, and the ACLU has only received

some of the documents it has requested.

It is a fundamental tenet of our society that protecting free expression of ideas outweighs any theoretical benefit of censorship.

The Supreme Court has affirmed the fundamental right of Americans to receive ideas. As the court wrote in 1972, ‘‘it is the purpose

of the First Amendment to preserve an uninhibited marketplace of

ideas in which truth will ultimately prevail. It is the right of the

public to receive suitable access to social, political, aesthetic, moral,

and other ideas and experiences. That right may not be constitutionally abridged.’’

The suppression of speech on the basis of its content is not made

consistent with American values simply because the government is

using immigration law rather than some other mechanism as the

instrument of censorship. To the contrary, every court to confront

the issue squarely has held that the content of a visitor’s speech

cannot by itself supply a legitimate and bona fide reason for exclusion.

The reinstatement of the practice of excluding people from our

shores because they are exercising their freedom of conscience is

much too reminiscent of the McCarthy era, when thousands of

Americans and immigrants were black listed.

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It is our view that America’s precious anti-terrorism resources

should be focused on preventing another attack, not on arbitrarily

excluding people who pose no threat to our government or people

and actually can do so much to enrich our intellectual and cultural

life.

Thank you for the opportunity to testify.

[The prepared statement of Ms. Fredrickson follows:]

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Mr. SHAYS. Thank you very, very much. Thank you, and we will

now go to Mr. Weber.

STATEMENT OF JOSEPH R. WEBBER

Mr. WEBBER. Mr. Chairman, thank you very much for the opportunity to be here today to discuss the investigative priorities of Immigration and Customs Enforcement [ICE]. I retired from the

agency as the Special Agent in charge in Houston in September of

last year, after 32 years of service and I appreciate that opportunity to serve.

I still have a fondness for the agency, a pride in its mission, and

most respect for the employees. I also have a continued interest in

homeland security issues, as I was in New York City on September

11th. The U.S. Customs House was approximately 30 feet north of

the North Tower of the World Trade Center. I was entrapped in

Building 7 of World Trade Center and evacuated by the New York

City Fire Department, and, but for their assistance, I would not be

here today.

So I have a very special motivation when it comes to homeland

security. It is something that at times I think is still taken not seriously.

But it is indeed an honor to be here today to be heard and hopefully in some small way have an impact on the future of ICE.

With the reorganization of government and the creation of the

Department of Homeland Security, ICE was formed in March 2003,

presumably for the purpose of pursuing violations of our Nation’s

immigration and customs laws.

However, from the onset, the agency was embroiled in controversy. Some of the difficulties that ICE encountered are not

unique and not without precedent. One only has to look to the private sector and observe the problems encountered in mergers and

acquisitions. Many mergers and acquisitions fail. Productivity suffers, as employees try to re-acclimate to the new environment, see

new ways of doing business.

Many employees focus on what the reorganization means to them

personally and where they fit in the new organization.

In addition to the normal stressors associated with a reorganization, ICE faced a significant budget shortfall, and, in my opinion,

a lack of direction.

Consequently, there were no funds to offset the difficulties encountered with the reorganization. There were insufficient funds

for things like cross training. There were insufficient funds for colocation of personnel, travel, fuel for vehicles. And most importantly, there was a hiring freeze.

Unfortunately, some of the events that were reported in the

media were true. Vehicles were parked. Copy machines were picked

up, as the bills were not paid. And there was a lack of accountability in virtually all administrative systems.

Special agents in charge received a stipend budget on a quarterly

basis, not knowing if additional funds would be received. Not only

were there difficulties encountered identifying investigative priorities, it was difficult to establish spending priorities due to the

budget shortfall.

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In an ideal environment, managers ensure that the budget is appropriately matched to its priorities. We were falling short on both

counts.

As if these hurdles were not obstacles enough, the agency was

continually bashed in the press. In order to establish its new identity, the agency attempted to change its name. These attempts

were blocked by the FBI, and it resulted in badges and credentials

not being issued for a period of over 2 years.

And even, as we heard today, the continued existence of the

agency was questioned, as DHS, as we heard earlier today, conducted a study as to whether to move the ICE back into CBP.

Some of this may seem unimportant to some, but when attempting to establish a new agency, a new identity, a new culture, it is

of a critical importance to convey to all employees the agency mission, priorities, and vision. Combined, these stressors have taken

their toll on ICE’s most valued resource, the employees and their

morale.

As indicated earlier, mergers and acquisitions are difficult to

manage under the best of circumstances. Needless to say, these

were not the best circumstances. However, sir, I am proud to report

to the subcommittee that the ICE employees continue to do a remarkable job, pursue significant cases, and perfect significant

cases, and we must not overlook the administrative staffs who have

done a remarkable job with antiquated administrative support systems.

It was a rather long introduction, but I think it is important before we go to the priorities of the organization to kind of understand some of the turmoil that we were going through when ICE

was established.

In government service, as in the public sector, there are

never——

Mr. SHAYS. To be clear, how much more do you have in your

statement?

Mr. WEBBER. I am sorry, sir.

Mr. SHAYS. No. Just tell me what you have in your statement?

Mr. WEBBER. I will try to shorten it.

Mr. SHAYS. Yes. You should shorten it, but do those key points.

Mr. WEBBER. I will. OK.

ICE, as we have heard earlier, ICE’s jurisdictional authority can

be very broad in that it could essentially anything that crosses the

border illegally, be it merchandise or people can be subject to investigation by ICE.

When ICE was formed, the exercise of addressing the agency’s

priorities never took place. At the second Special Agent in Charge

[SAC], Conference in Philadelphia, ICE specifically asked the Assistant Secretary that we dispense with the planned agenda and go

immediately to a discussion relating to the agency’s mission and

the agency’s priorities. And the response from the Assistant Secretary was, what is it you need, Joe? A PowerPoint? All the discussion relative to the establishment of a mission statement or priorities was quashed. There was no further discussion.

Mr. SHAYS. Wow.

Mr. WEBBER. Similar things had happened along that line. In

one instance, the Deputy Assistant Secretary openly criticized the

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Legacy Customs managers indicating they had spent too much

time on drug cases. Of course, when pressed for what is the new

number, what is the appropriate amount of time to spend on drug

cases and also where to reinvest the energy, there were no answers.

There were no priorities established.

As we heard earlier, I believe it is very easy to establish priorities within ICE. It calls for some tough decisions. Some poor initiatives need to come off the table. They have an excellent case management system, where you can put a priority on a case category

and then track how much effort is actually being put into it. And

obviously anything that impacts the safety of our citizens should be

considered a class one case. And all managers should be held accountable that is where their time is invested.

A very good example of how ICE’s resources could be saved is

there is a program, Institutional Removal Program, where essentially illegal aliens that are prison are identified and deported after

completing their sentences. I am not arguing against the initiative

at all. It is something that definitely should continue. However, it

is not an investigator’s job. It needs to be transferred to the Office

of Detention and Removal. There is a separate office within ICE,

Detention and Removal, whose function is to detain and remove

aliens, but yet we have agents doing that function. About 10 percent of ICE’s investigative resources are performing this function.

Again, I will attempt to shorten it. The other issue, sir, that I

would like to leave with you is that of jurisdiction. And there have

been turf battles, both within the Department and outside the Department. The interactions between CBP and ICE, be it the Border

Patrol or Inspections, have been reduced to the establishment of

working groups; working out MOUs between themselves versus

leadership and policy coming from the Department or from the

heads of the agencies.

I was involved in an incident in Houston where we were working

a financial terrorism case, and I am precluded from getting into

great depth about the case, but I can tell you that it proceeded to

point where we submitted an affidavit for a wiretap to Washington,

DC, main Justice. In that affidavit, which it was a consensus of everyone involved that there was sufficient probable cause to pursue

the wiretap, terrorism was referenced on 49 occasions. Osama bin

Laden by name was referenced on three occasions, and Al Qaeda

once. That affidavit stalled in Washington for a period of over 127

days.

After not being able to move that case forward, I wrote a letter

to GAO, the IG from DHS, and the IG from DOJ. I heard nothing,

and essentially saying that a case involving our national security

was being compromised. I heard nothing from the oversight agencies. I then wrote to Senator Grassley’s office. Senator Grassley initiated an inquiry. And the IGs, the response from the FBI initially

there was a Dateline story. The original response from the FBI was

that it was nothing more than a dispute between agencies on how

to pursue a given investigation and that all terrorism leads are vigorously pursued.

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layed and that there were differences in recollection of events by

some of the agents involved.

To cut to the chase, in addition to the troubles that ICE is having with prioritization, it has jurisdictional issues. If ICE is not

going to be able to pursue cases that relate to our national security,

there is a built-in disincentive to initiate these kinds of cases. If,

as we heard earlier, if the agents are going to be required to turn

it over to another agency.

[The prepared statement of Mr. Webber follows:]

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Mr. SHAYS. OK. Thank you very, very much.

I am going to start out with the professional staff.

Ms. DANIEL. Mr. Webber, we will start with you. You have a

unique perspective in that you have a number of years of experience before ICE was formed and then you were there during its formulation and then for a little while thereafter.

A lot of your testimony speaks about coordination problems and

turf battles, and I am wondering to what extent the problems of

interagency coordination existed before the creation of ICE and

were carried over. In particular, it was one thing that makes me

think about this is it is curious that your agency needed the FBI’s

permission to change its name. I wondered if you could speak a little bit more about that in the broader context.

Mr. WEBBER. Well, first to the turf battle issues. Unfortunately,

turf battles are an unfortunate reality in law enforcement. At a

time, the competitive spirit works to a certain extent, and at times,

it becomes counterproductive. It has been my experience, and I was

a SAC. I have been 32 years on the job, and a SAC in three different cities—El Paso, New York, and Houston—that if an issue got

to a high enough level, it would get resolved. That, to me, seems

to be what is missing. And, of course, at the time, CBP and ICE

it was all Customs and Immigration. And needless to say, the Commissioner of Customs, as an example, wouldn’t want to hear that

there was a dispute between a Port Director and a SAC. It just

didn’t happen.

Problems would not get escalated to headquarters like that.

There was pressure to make sure that things got worked out at the

local level.

As to the name issue, it is my understanding that when a proposed name change was floated to D.C., it was sent to the other

agencies and the FBI opposed ICE’s changing its name.

ICE is the only agency I believe in Federal Government that has

an acronym on its badge. It doesn’t say Immigration and Customs

Enforcement. It says ICE. And there were efforts to change it to

Investigations and Criminal Enforcement and the Bureau, as I understand it, blocked that move and badges and credentials weren’t

issued for over 2 years.

Ms. DANIEL. I am also interested in the ideas that you have to

reform the problems that exist right now. You are obviously embroiled in something resulting from the memorandum of understanding between the FBI and ICE. There are a number of other

memoranda of understanding or of agreement between other various DHS and outside components. Some believe that these simply

don’t work; that it is just a piece of paper, and when it gets out

into reality, it sort of looses its umph.

If you contend that the memoranda of understanding are an ineffective way of resolving interagency problems, what do you recommend instead?

Mr. WEBBER. Well, from my perspective, and I think what the

American public wants from us is they want law enforcement agencies working together, communicating, and working in a cooperative environment. That is very easy to say obviously, but hard to

do.

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From my perspective, it is leadership. I mean these are all executive agency entities. And particularly in a post September 11th environment, it shouldn’t be tolerated. Last week’s testimony on

Moussaoui sentencing. Why in a post September 11th environment

would anyone get in the way of pursuing a terrorist-related lead?

The objective should be to get behind it and try to help, not impede.

Ms. DANIEL. OK. I would like to ask Ms. Fredrickson a question.

You were talking about the creation of artificial barriers and the

ideological exclusion provision as something that ultimately compromises the ability of the American people who might otherwise

hear what people have to say to make independent decisions. In

cases like Dr. Ramadan’s, according to the evidence you present, it

seems that he has been one might say wrongly excluded. But the

question is that then going through case by case, where do you

draw the line in excluding or including? How do you avoid casting

the net too wide, but specifically what criteria should the United

States use to distinguish between the exercise of the freedom of

speech and advocacy of ideologies that may genuinely pose a threat

to U.S. national security?

Mr. SHAYS. Before you answer that, does he have a freedom of

speech issue or is your claim that the American public has the

right to hear his speech?

Ms. FREDRICKSON. Yes. The case law—and there is a very well

established case law in this area—shows that this free speech right

is clearly with the Americans and citizens and residents here who

have the right to associate and hear ideas, and the Supreme Court

has spoken very loudly on this, particularly relating to the exclusion of visitors—and the viewpoint exclusion in particular, and I

think to answer your question, the issue here is about speech. And

I think that is where the Supreme Court has drawn the line; the

other courts have drawn the line. When that is the only reason

someone is being excluded, that is unacceptable viewpoint discrimination. That is not allowed under the first amendment.

Mr. SHAYS. Even if it is—allegedly, maybe not in this case, but

inciting people to riot, to overthrow the U.S. Government, to do

damage to the government, they would have that right, even as

non-Americans?

Ms. FREDRICKSON. Well, this is someone’s point of view, but not

actions associated with espousing, persuading people to take actions are in a different category. What has happened here is that

the way that the provision has been interpreted in particular by

the State Department in their manual is to set a very, very, very

broad parameter for who can be excluded and that is—for people

really the language—I don’t have it right in front of me—but is

pretty much for unacceptable ideas.

And so in the past, this particular provision has been used to exclude a wide variety of artists and scholars, and there was an ideological exclusion provision that existed prior to the Patriot Act was

in the 1980’s and early 1990’s. I think it was removed from the law

at that point, but previous to that, it had been used quite a bit in

the 1950’s and 1960’s, and so to keep out some very, very well

known individuals—novelists and so forth like Graham Greene,

Dario Fo, and so forth, and people who pose no threat to our way

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of government; have no national security implications in their writing. And I think Dr. Ramadan is an incredible case, because he, in

particular, has been so involved in trying to advocate a moderate

point of view in Islam. He was actually appointed by Tony Blair

to a commission on how to reduce terrorism.

I think it shows that with that kind of provision in the law and

the breadth of the interpretation imposed on it by the State Department, you reach results that are very profoundly dangerous for

our way of government.

Ms. DANIEL. Dr. Ryan, you discussed that the first step to take

in applying risk management and outcome-based performance monitoring and bringing that together is to assess the mission and vision statement of a particular entity.

The Bureau of Immigration and Customs Enforcement [ICE], is

responsible for reducing national security vulnerability in a wide

variety of investigative areas and often, as we have heard discussed a lot today, in coordination with many other entities at the

same time.

So what steps should ICE take to apply risk management to

multi-level governmental enforcement efforts to achieve one clear

sort of both risk assessment and outcome-based performance measures?

Dr. RYAN. Well, I just have to back off for a second and say I

really don’t understand the structure of ICE, and that kind of decision needs to be given to ICE itself. The different levels in that bureaucracy need to address each of those questions—how are they

going accomplish. The vision and mission statement is a very important tool.

I will give you one example: When the 1994 Crime Act was passed, a major segment of that, $6 billion, was allocated to hiring

police officers, and the task was very simple: how do you get those

officers out there? It was very clear, the direction was clear, and

it was accomplished, so I have to back off. I am not sure exactly

what ICE is trying to accomplish. It sounds like it is trying to accomplish many things, but I would submit to their expertise, and

I did mention in my testimony, in my written testimony also, that

a vision and mission statement should be made up by everybody

in the agency, and including outside agencies if their activities impact on another agency.

Ms. DANIEL. Risk assessment is something that can be coordinated, though, at a multi-agency level?

Dr. RYAN. Well, once the agency itself, namely ICE, identifies its

risk, OK, I mean, I’m sorry. I need to back up. The way an agency

identifies its risk is everybody in the agency agrees what the risks

are. They have to do it themselves. If the FBI is going to tell ICE

what the risks are, that is a wrong direction. ICE needs to identify

its own risk.

Ms. DANIEL. Mr. Webber, did you want to add anything to that?

Mr. WEBBER. No, I would agree wholeheartedly, and I think Dr.

Ryan’s comments earlier about the division, the mission, and the

vision is the problem and that—when people come to work in the

morning, they don’t need to question what they are there for.

Ms. DANIEL. For my final question I would address something to

all three of you. You are all here from very different backgrounds.

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Dr. Ryan is from an academic and law enforcement angle. Ms.

Fredrickson is from a legal and activist perspective, and Mr.

Webber is from the Bureau itself, with, as I said earlier, a span of

perspective.

What ties you together here is essentially the idea that wrong or

badly defined investigative priorities in this kind of situation are

almost as bad as none at all.

And you are all personally or professionally invested in how well

ICE operates in the interest of national security, either as professionals whose work is connected to ICE or as private citizens who,

like all of us, are affected by national security interests.

So from each of your respective vantage points, what would you

put forth as the single most important reform that ICE can implement now in order to effectively make national security an investigative priority?

Dr. RYAN. Well, I will just start by going back to my testimony

that the priority should be that ICE should set up its own vision

and mission statement, and it should be shared with everyone in

the organization, and it should be made public, so I, Joe Q. Citizen,

can know what my government agency called ICE is doing for me.

Ms. DANIEL. Ms. Fredrickson.

Ms. FREDRICKSON. One of the things that the ACLU likes to say

is that we don’t have to make a tradeoff between our security and

our civil liberties, and I think that the ideological exclusion provision in the law really demonstrates how wrong headed some of

these provisions can be in actually undermining American freedom

and undermining the exchange of ideas; that it can actually help

us hopefully to win the hearts and minds of people in the Middle

East.

So I think what I would suggest is that I think that the agencies

really need to assess at what point we make that balance or when

tradeoffs need to be made, and I think those kinds of decisions

need to be scrutinized very, very carefully because I think that the

tendency has been certainly since September 11th to lean way too

far to the side of sacrificing our civil liberties with very little security benefits to show for it.

Ms. DANIEL. Mr. Webber.

Mr. WEBBER. Dr. Ryan’s testimony I think provides a lot of insight. I think the agency needs to, although it is 3 years old now,

it needs to get back to basics. It needs to get back to a clear cut

mission, clear cut jurisdiction, clear cut priorities, and communicating it to all employees.

Ms. DANIEL. Thank you.

Mr. SHAYS. As I have been thinking about this panel, I think the

points are so basic, it is almost like what do you say again? I can

ask you to say it 100 different ways, but I would like to say that

my view is obviously, as also pointed out to me, if you set the

wrong priorities, that is probably worse than having any priority.

But clearly, it is kind of basic, Dr. Ryan, that you would set priorities and that you would make them known to everyone in the

agency, and they would work by it, and it would be shared and

known by the public. There would be no reason not to, it strikes

me.

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Ms. Fredrickson, I know ACLU likes to say there is no tradeoff

between freedom of speech and security, and I had this feeling like

that is what you like to say, but the fact that you like to say it

doesn’t make it true. And, because I think there is constant tradeoffs, and I would love to just explore that a little bit with you. I

feel I am being asked to make decisions every day about how far

we go and backing off or go forward a little bit more that would

tend to threaten speech.

Is it that we basically think that speech is so important that

there will never need to be a tradeoff?

Ms. FREDRICKSON. Well, there are obviously some restrictions

that exist in the law that are based on specific needs that are defended by specific types of examples and evidence. And those clearly need to exist. You know don’t yell fire in a crowded theater;

right? There are things that do actually make a lot of sense in

terms of protecting us in a variety of ways.

Mr. SHAYS. Right.

Ms. FREDRICKSON. However, it is a fundamental value and a fundamental right in this country that is protected by the first amendment, and I think it is critically important that as we review new

legislation and look at policies that are coming out of the agencies,

we always remember that is the backbone of the American republic; that is what really defines us. And so we do live in a time when

people feel like there is some danger at hand, but those are the

times in this country when we have been at war or in other circumstances, and we have made the deepest incursions into civil liberties.

Mr. SHAYS. You don’t think we are in danger now?

Ms. FREDRICKSON. I am not suggesting that. I am saying that at

times of war and other circumstances——

Mr. SHAYS. Right.

Ms. FREDRICKSON [continuing]. There has been a tendency in

this country to take the actions that we have most regretted in

terms of our civil liberties. You only need to talk about the Japanese Americans to think about what are the possibilities of going

too far down that road, and we really need to be very careful at

not overreacting and really undermining the very reason that the

United States is such a profound beacon for the world.

Mr. SHAYS. Right. But your basic point that I am hearing is that,

in your judgment, we are doing some pretty dumb things that

threaten our speech and are a waste of our time and energy. That

would be a basic point that you would make, and you used it with

one example.

Ms. FREDRICKSON. Well, I think that the Ramadan case is a very

clear cut example.

Mr. SHAYS. Right. And you——

Ms. FREDRICKSON. And that’s an absurdity, but, you know, from

the ACLU’s point of view, we raise very strong concerns about the

current version of the Patriot Act that passed. We are very disturbed by the President’s authorization of surveillance in violation

of Foreign Intelligence Surveillance Act.

Mr. SHAYS. Right.

Ms. FREDRICKSON. The use of torture and other types of abuse

at Guantanamo. I mean there are a whole range of areas where we

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do think that the actions that have been taken are not consonant

with our fundamental values as a Nation and actually have done

little to enhance our national security, and in some cases, I would

actually argue have damaged it by really undermining our ability

to reach people in the Middle East and to talk to others and have

a dialog about democracy and the value of human rights and civil

liberties.

Mr. SHAYS. All right. Mr. Webber, I wondered if you can elaborate a little bit, because it is almost so absurd. Is it your contention

that basically when you were told the story of, you know, what do

we need, you were there?

Mr. WEBBER. I——

Mr. SHAYS. You know what do we need? A PowerPoint? Was the

inference of the individual saying it that Assistant Secretary, you

know, guys, let’s just get our hands dirty and let’s just get on with

it? Or what came across was just this almost belittling of even having to set priorities and to have a clear understanding of where we

are headed. I mean was there any reason? I am just curious why

no one like said, hello, what do you mean, boss? Explain to me. I

mean we are not going to set priorities. I mean I wonder if you had

said that to him, he would have said, of course, I am not saying

that. In other words, is this a fair description of what happened,

because, if it is, it is a real indictment.

Mr. WEBBER. Sir, it is more than fair. It is a quote. I asked the

question, and I framed it, and I think in a positive way, you know,

let’s roll up our sleeves. Let’s carve out a mission statement. Let’s

carve out priorities. And I think I was——

Mr. SHAYS. And you actually talked about carving out priorities?

Mr. WEBBER. Yes, sir, specifically.

Mr. SHAYS. OK.

Mr. WEBBER. And the response was in a very condescending way,

will you need a PowerPoint, as if don’t you understand——

Mr. SHAYS. And then what happened?

Mr. WEBBER. And then that was the end——

Mr. SHAYS. Now, were you so taken back, you weren’t inclined

to pursue it more. I mean——

Mr. WATT. Well, other——

Mr. SHAYS [continuing]. I mean like say, you know, hello. No, I

don’t want a PowerPoint. I just want us to set some priorities here.

I mean I don’t know how you would have said it, but——

Mr. WEBBER. Well, actually there were several other SACs engaged in the conversation as well, and followup questions, and another response we would typically could get was, you know, we

haven’t shut anything down. You know, what are the priorities?

Well, we haven’t shut anything down.

Mr. SHAYS. So, in other words, we got to keep doing what we are

doing?

Mr. WEBBER. Correct. We were continually pressing for what is

the mission. I mean unfortunately and again the budget was a big

problem, but you have two different cultures, and, you know, there

was an inclination by some to stay in their comfort zone. There

were Customs agents that didn’t want to pursue immigration violations; immigration agents didn’t want to pursue customs violations.

And training I think was a critical component. We didn’t have the

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money for it. And co-location. We still had people in different buildings.

But if, at a minimum, if we could communicate this is the mission. These are the priorities, and this is what is expected of you.

No one showed up at today’s hearing with an investigative strategy. No one showed up with here is the roadmap. That is what we

pursued, and, yes, in a very belittling way. It was, don’t you get

it? You need a PowerPoint?

The same with the incidents I discussed relative to—there was

open criticism of the legacy customs: you spend too much time on

drug cases. But when pressed, what is the right amount of time?

And where to reinvest the savings? There were no answers.

Mr. SHAYS. So how did you react to Mr. Schoch’s testimony?

Mr. WEBBER. Well, I actually like Bob quite a bit, and Bob is in

difficult position. It is nice to be here as a citizen. No one edited

my presentation, and tonight I can only get debriefed by my wife.

So it is a little bit different I think. But I looked at Mr. Schoch’s

written testimony and some of which he didn’t cover in his oral testimony, but it repeatedly talks about we task the SACs to conduct

a threat assessment on financial, on smuggling, and we task the

SACs. What is missing in the equation, from my view is the leadership from headquarters. Where is that national threat assessment,

and where are the national priorities?

I would also strongly argue as a SAC that there needs to be some

flexibility for local threats. But you should be held accountable for

what you use your resources for.

Mr. SHAYS. How did you react, Ms. Fredrickson, to his testimony?

Ms. FREDRICKSON. It makes a lot of sense to me.

Mr. SHAYS. No, not what Mr. Webber said, but what Mr. Schoch

said?

Ms. FREDRICKSON. To Mr. Schoch——

Mr. SHAYS. I am going to ask you the same thing, Dr. Ryan.

Ms. FREDRICKSON. Well, I guess I was most clearly interested in

his answer to Mr. Van Hollen’s question about the Ramadan case.

I was a little disappointed that he really didn’t come anywhere

close to providing an answer for that. I think there really is not a

defensible answer in this case for excluding Mr. Ramadan, and I

think it would be very hard to come up here and tell you that there

were such an answer.

So I think it was a little disappointing, but understandable from

his point of view I guess.

Mr. SHAYS. Yes. Beyond that issue. Any other point? Any other

reaction?

Ms. FREDRICKSON. I mean we are not primarily in the business

of risk assessment and so forth and making those kinds of determinations about governmental resources. So I would want to defer

to——

Mr. SHAYS. Well, you know, I was thinking, though, actually, you

should be, because really what one of your messages to us is, as

I am hearing it, don’t strain out gnats and swallow camels. In

other words, while you are worrying about Mr. Ramadan, you are

not worried about other things.

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I would think that is kind of your message to us, not that you

shouldn’t be worried about anything, but that your priorities are

wrong. Get your priorities right, which says to me that you have

to be interested in what their priorities are in order to have a comfort level that they have it right. You know what I am saying?

Ms. FREDRICKSON. Yes. And certainly, to some extent, that is a

fair assessment of our position in that we don’t think that these

are avenues that should be pursued because they don’t actually enhance our national security, but beyond that, how the priorities are

made between different types of threats that actually do challenge

our national security, I would have to defer to the experts on that.

Mr. SHAYS. See what is interesting to me is that we have had

hearings on the whole issue of declassification and over-classification and pseudo-classifications, and you all caught my interest

when you said you didn’t read the report, and I asked staff what

they sent you, and they sent you this one page, and on the top of

it is written law enforcement sensitive. Well, this is not a secret

document. It doesn’t have to follow any of the rules. They just

stamped it as law enforcement sensitive, which means that when

GAO looks at something law enforcement sensitive, they have to

stamp it as law enforcement sensitive, which means that somehow

you are not allowed to look at this, even though it doesn’t require

a classified security background in order to look at it. It is their

own document that they basically said you can’t see, which is really

curious as hell to me. Dr. Ryan.

Dr. RYAN. In response to that or in response to——

Mr. SHAYS. Well, I do want to first in terms of what Mr. Schoch

said. I am curious as to how you reacted to what he said.

Dr. RYAN. What I think is interesting is what was not said.

Mr. SHAYS. Right.

Dr. RYAN. Obviously, the GAO report came out and they were

recommending a series of things that I am hear him saying we are

looking upon them favorably. So what is favorably to look at it

upon. I mean they were not specific in his—his responses were not

specific.

Mr. SHAYS. OK. How about this issue?

Dr. RYAN. I think it is quite interesting—my background is law

enforcement sensitive—and I read that one page. It is a management document. I don’t think there was anything controversial. I

mean I guarantee if I read the report right now, I would not be

shocked that someone else in the world is going to find out this

super secret information.

Mr. SHAYS. That I saw and what staff saw, there is no reason

why you all couldn’t have been able to read it, and it would have

been helpful to have had you read it, and what I probably should

have done is been aware of it, and I probably could have given it

to you. Staff might have been more on questionable grounds. But

it does raise, you know, some real issues about priorities and what

we are protecting and who we are protecting them from.

My general view is that the problems we see in homeland security are not that we brought together the parts of 22 agencies and

180,000 people. It is really the ability of people to take this opportunity, as I would call it, and make it into something that can be

more productive, and not because we never should have done it in

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the first place. I mean I have no problem with Customs and INS

investigative being together. It seems logical to me, and it seems

to me there could be synergies and so on.

You are not in your head, Mr. Webber, do you disagree or——

Mr. WEBBER. No, sir. I agree.

Mr. SHAYS. OK.

Mr. WEBBER. I agree.

Mr. SHAYS. OK. Yes.

Mr. WEBBER. If I may, sir, I think what is missing is we haven’t

capitalized on that synergy.

Mr. SHAYS. Yes.

Mr. WEBBER. I think there is some great potential there.

Mr. SHAYS. Any last point that any of you would like to make.

There may have been something in your testimony you want to emphasize and so on.

Dr. RYAN. You had made a comment earlier about my comments

being so logical. I am sorry they are. And it is so simple that one

thing I did do is I gave you in my written testimony a copy of the

San Diego Police Department’s vision and mission statement. You

can go to their Web site and you can find it. I went to DHS’ Web

site, and I found their mission statement. I went to ICE’s Web site,

and I did not find a mission statement.

Mr. SHAYS. You know what? I was thinking as you were speaking, I was curious to know if Mr. Schoch would stay and listen to

your testimony. Sometimes Department heads stay and listen to

what the next panel says. And I wish he had, and I would have

liked to have brought him up here. So I think what I will ask the

staff to do, the professional staff, is to write a letter just based on

that one comment that you ended up with and say that is what we

found; it is based on your points, Mr. Webber, as well; that these

are pretty basic stuff, and I really should have asked him exactly

for that and why it isn’t on—available on the Web and so on. Why

we aren’t seeing that very clearly delineated. You follow what the

point is? Just basically your point: This is the San Diego Police Department?

Dr. RYAN. Yes, it is in the document.

Mr. SHAYS. Right.

From your own statement, we will take that and ask how come

we are not seeing it here? Is it they don’t have the capability; that

they have done it and clearly just choose not to share it? Why not?

Any other comment? Ms. Fredrickson, any?

Ms. FREDRICKSON. No, I would just like to thank you for holding

this hearing.

Mr. SHAYS. It was nice to have all three of you. Thank you, Mr.

Webber, as well.

Take care.

Mr. WEBBER. Thank you.

Mr. SHAYS. With that, this hearing is adjourned.

[Whereupon, at 4:05 p.m., the subcommittee was adjourned.]

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