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S. HRG. 111–504 

OVERSIGHT OF THE DEPARTMENT OF HOMELAND 

SECURITY 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

MAY 6, 2009 

Serial No. J–111–20 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

RON WYDEN, Oregon 

AMY KLOBUCHAR, Minnesota 

EDWARD E. KAUFMAN, Delaware 

ARLEN SPECTER, Pennsylvania 

JEFF SESSIONS, Alabama 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

MATT MINER, Republican Chief Counsel 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa, prepared 

statement .............................................................................................................. 139 

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

prepared statement .......................................................................................... 142 

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

WITNESSES 

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

QUESTIONS AND ANSWERS 

Responses of Janet Napolitano to questions submitted by Senator Hatch ......... 33 

Responses of Janet Napolitano to questions submitted by Senators Feingold, 

Feinstein, Grassley, Hatch, Kyl, Sessions and Wyden ..................................... 34 

SUBMISSIONS FOR THE RECORD 

Napolitano, Janet, Secretary, U.S. Department of Homeland Security, Washington, D.C., statement ........................................................................................ 144 

(1) 

OVERSIGHT OF THE DEPARTMENT OF 

HOMELAND SECURITY 

WEDNESDAY, MAY 6, 2009 

U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, D.C. 

The Committee met, pursuant to notice, at 10:07 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy, Kohl, Feinstein, Feingold, Durbin, 

Cardin, Whitehouse, Klobuchar, Kaufman, Sessions, Hatch, Grassley, and Kyl. 

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

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Good morning. I want to thank Secretary 

Napolitano for appearing here today with all the other things she 

has going on. I really appreciate this. Many of us knew her even 

before she had this position—of course, Senator Kyl. They are both 

from the same State. And Secretary Napolitano is a constituent of 

Senator Kyl’s. I knew her first when she was Attorney General and 

enjoyed the time we have had. 

I want to commend your competent leadership during the current 

threat of a flu pandemic. The response has been very good, and especially not only here in the United States, but in the coordination 

with the World Health Organization, and I think it gives people a 

lot of sense of confidence in the efforts throughout the administration. And I would note, if I might, sort of a personal thing, the 

State of Vermont is home to several DHS operations. We have the 

USCIS Service Center. We have the Law Enforcement Support 

Center, a Fusion Center, among others. The Law Enforcement Support Center, I remember being there late one evening when a call 

came in from a sheriff in Arizona who was checking on somebody 

they had picked up, and they got an answer right away. But it is 

a good Federal-State partnership, and if things ever calm down 

around here, Madam Secretary, I would be delighted to have you 

come to Vermont and see the very, very good men and women who 

work there, the very loyal men and women who manage these 

around-the-clock operations. 

I commend your early attention to our interests in working closely with Mexico in its struggle against drug trafficking and against 

the violent cartels and gangs that pose serious threats to the people and communities, and I actually think they pose a serious 

threat to the Government of Mexico itself. Mexico is our neighbor, 

2 

and finding appropriate ways to help it prevail against these lawless influences in their own country is going to help. The Merida 

Initiative is a first step, but we need a comprehensive strategy that 

addresses the underlying causes that have enabled this drug-related culture to grow up in Mexico. 

Last week, you issued new guidelines for the Immigration and 

Customs Enforcement agency’s approach to conducting immigration 

worksite enforcement in order to combat the systematic unlawful 

exploitation of foreign workers that serve to harm them and to undercut American workers. The penalty for such lawbreaking and 

exploitation has to be meaningful. It has to be more than just another cost of doing business for some of these employers. 

I am glad to see you take the issue of immigration detention seriously. You are reviewing past practices and procedures. We have 

a historically high rate of detention for asylum seekers and other 

non-criminal aliens, so I would hope that you are going to give 

careful consideration to alternatives, especially supervised release 

of those who pose no threat. In my view, the United States should 

not be in the business of incarcerating children who have violated 

no laws, and alternatives, if we can find them, to unnecessary incarcerations will not only be more humane but is actually going to 

save taxpayer dollars. And I think we all agree that we need to ensure that foreigners are not dying while they are in custody. 

I saw the ceremony last week at which you and the President 

welcomed members of our armed services to American citizenship. 

I was very pleased to see that. Immigrants who risk all to defend 

this Nation deserve expedited citizenship consideration. And that 

was not the first time you have administered the oath to our soldiers. I saw you do it to a wounded soldier at Walter Reed last 

month. And I think that honors not only his service but all such 

soldiers. 

I am glad you are going to take a fresh look at the REAL ID Act. 

I think many Americans believe that in its current form it is an 

onerous Federal mandate and amounts to a national ID card in the 

guise of a driver’s license. I joined Senator Akaka and others in 

supporting legislation last Congress to replace the rigid requirements of the current law with a negotiated rulemaking process that 

actually treats the States as being partners in this. And I agree 

with you that ‘‘there has to be a better way than REAL ID.’’ 

I expect that the Department will support the EB–5 Regional 

Center program. This has resulted in billions of dollars in foreign 

investment but also an awful lot of jobs in this country. And we 

should have made it permanent before now, and I hope we will. 

Senator Kyl and I provided authority during the previous administration on the question of unnecessary barriers to asylum seekers, 

and Senator Kyl and I wanted to allow the Secretaries of State and 

Homeland Security to issue waivers in this regard. Little was subsequently done, and I would hope you might look at that. 

I want to say that no one who is victimized by violence and repression or who stood with the United States in opposition to an 

oppressive foreign government will just be blithely labeled a ‘‘terrorist’’ and denied our protection. 

3 

President Obama spoke again last week about the need for comprehensive immigration reform. We need to pursue that, so I welcome you. 

Before I do that, I will turn to my friend from Alabama, who is 

the new Ranking Member on this Committee, and I appreciate him 

being here. He and I have worked together on many, many things 

over the years, and I will now turn it over to him. Jeff, I am glad 

to have you here. 

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

THE STATE OF ALABAMA 

Senator SESSIONS. Thank you. Thank you, Mr. Chairman. It is 

a remarkable series of events that I find myself in this position. My 

mother, who we lost a few weeks ago, always felt the Judiciary 

Committee should be a higher-quality group, Mr. Chairman, and I 

think maybe that is good advice for all of us. People expect out of 

this Committee high standards of professionalism and integrity 

and fairness and justice, and you can be sure that we will work 

hard to discuss the issues that are important to America, to analyze the legal questions this Nation must face, treat nominees and 

witnesses fairly, to analyze legal questions fairly. And a lot of times 

we may agree or disagree on certain matters, but a lot of things 

we can agree on. And so I look forward to working together in a 

way that makes this great legal system in America better. 

I would just say, as I shared with the President last night, having gotten back from, I guess, my sixth or seventh time to the Middle East, the rule of law is the most lacking thing in those countries. If you could have security and lawful behavior and the government had the capacity to secure people in their lives and in 

their business interests and they would prosper, their freedom 

would be preserved. We have been provided the greatest legal system the world has ever had, and all of us have a responsibility to 

pass it on and to ensure that every single American is provided 

what is on that Supreme Court building, ‘‘Equal Justice Under 

Law.’’ 

Madam Secretary, you have got a big job. You and I are former 

Attorney Generals and U.S. Attorneys, and I know when they cobbled everything together in Homeland Security, a lot of those agencies have deep histories and cultures that were not quite the same. 

So the challenge that you have to bring it together—and I know 

it is not there yet. I am sure it is not. And so I know you are working on that. 

I wanted to raise some questions with you today, and I will do 

that and share with you some concerns I have and give you an opportunity to discuss them. You are starting out now. You are setting some policies and trends and positions that will impact the 

lowest agent in your Department and really impact American citizens and the whole world. What you say has a lot of difference. So 

I was concerned with several actions taken and statements you 

have made to date, and I would like to ask you about them. 

I also would note that in your good letter that I received last 

night, you said some things that, if carried out, I think answer 

some of these questions, and we can talk about it as we go forward. 

4 

With regard to the question of worksite enforcement, I understand that there has been only one ICE worksite enforcement action during this administration, and rather than supporting this 

action, which yielded the arrest of 28 illegal aliens, you announced 

that you were going to ‘‘get to the bottom of this’’ by investigating 

the agents and the processes that led to that, agents and processes 

and actions that I think were simply doing their duty. And that 

has the potential to send a message to every agent in America 

what your policies are with regard to worksite enforcement, and I 

hope that is not correct. 

Leadership from the top is a key issue, and the signals you send 

can have a chilling effect and can affect the priorities of every single officer out there and every single department under your control. 

While I support your recent decision to devote resources to the 

criminal prosecution of employers who knowingly hire illegal 

aliens—and I think that is probably the primary and best path to 

create a situation in which we remove, as Mr. Bonner, the head of 

the Border Patrol union, has said, the jobs magnet, your decision 

to release some of those that were arrested in this raid I mentioned 

in Washington, I think could represent a significant shift from the 

policies of the previous administration. Secretary Chertoff in his 

policies I do not think followed that trend. 

So I am concerned about that, and I also note that while our unemployment rate in America is rising now to 8.5 percent, in the 

days after this Yamato raid in Washington, 150 people applied for 

those jobs. So there are people willing to work, and sometimes I 

think unscrupulous employers are seeking the cheaper way out, 

violating the law, and not providing opportunities for American 

citizens who are unemployed to get good work. 

I was also disappointed that in April you decided to delay implementation of Executive Order 12989, which requires all Federal 

contractors and subcontractors to use E-Verify, and you put it off 

until June 30th. I think that is the third delay. President Bush delayed it until the beginning of January, and I think this is a second 

delay from this administration. 

Over 100,000 employers use this. I think you have supported this 

concept in the past. But these extensions may be sending a message that is confusing, and voluntarily, people are signing up, as 

much as 1,000 a week, and we need to keep that going, and I 

frankly was baffled that Congress did not require it to be used with 

regard to the stimulus package and jobs created there. 

So I hope that you will clarify some of the positions you have 

taken with regard to people who enter at the border. Your letter 

is pretty clear on that. it is a misdemeanor, and I think perhaps 

maybe it was just a mis-speaking when you suggested it was only 

a civil offense to enter the country. But, again, that is a message 

that can have an effect of undermining the morale of our officers 

and the possibility of creating a lawful border. 

Thank you for your testimony. I look forward to engaging in dialog. I want you to succeed. You are a highly capable person. You 

have got good background for this position, and we will be trying 

to cooperate and assist you. But we do need to use those great resources effectively, and I will be counting on you to do that. 

5 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

Madam Secretary, please go ahead. And what we are going to do, 

there is going to be a series of votes, and I would urge Senators 

who are not next in line to ask questions, as soon as the vote 

starts, go to the floor and come right back, and we will try to keep 

this going. I know your time is limited, so please go ahead. 

STATEMENT OF HON. JANET NAPOLITANO, SECRETARY, U.S. 

DEPARTMENT OF HOMELAND SECURITY, WASHINGTON, D.C. 

Secretary NAPOLITANO. Well, thank you, Mr. Chairman, and congratulations to you, Senator Sessions, on becoming the Ranking 

Member of this Committee. I will give a preliminary statement 

now. I do look forward, Senator Sessions, to clarifying some of the 

comments you had because I think it will be important that we 

work together to enforce the rule of law at the border and in the 

interior of the country, because our immigration strategy cannot 

just be border specific. It has to include the entire Nation, so I look 

forward to coming back to those specific questions on Bellingham 

and E-Verify. 

But as you know and as you have noted, the Department of 

Homeland Security has a very broad mission. I categorize them in 

five major categories. The first is to guard against terrorism. That 

is why the Department was stood up. The second is to secure our 

borders. The third is to enforce our immigration laws in a smart 

and effective manner. The fourth is to prepare for and recover from 

disasters. This can be managing events as we are currently underway with the H1N1 virus to preparing for the upcoming hurricane 

season. And the fifth is unifying the Department, creating one Department of Homeland Security out of what originally was 22 separate agencies. 

We are moving forward in many of these areas. Specifically with 

respect to this Committee, we are moving forward with respect to 

our borders, immigration enforcement, and secure identification. 

And I detail those efforts in my more elaborate written statement, 

which we will put in the record for you. 

If I might, just to highlight a few things. We are working to protect our borders against rising drug cartel violence and other crossborder threats. We are adding more boots on the ground, technology, and equipment through a new southwest border strategy. 

We are expanding our cooperation with State, local, and tribal 

partners through Border Enforcement Teams, called ‘‘BEST Teams, 

and other initiatives, and we are strengthening and enhancing our 

cooperation with Mexico through efforts like the Merida Initiative. 

In addition, we are refocusing our efforts on smart and effective 

immigration enforcement. We are targeting the employers that hire 

illegal aliens and create the demand for illegal immigration. We 

are making improvements to the E-Verify system. Let me pause a 

moment there. I believe E-Verify is very important and must be an 

integral part of immigration enforcement moving forward. I signed 

the Nation’s toughest employer sanctions laws when I was Governor of Arizona, and it is no surprise that almost 25 percent of the 

employers currently registered on E-Verify are actually Arizona 

employers. So we know that with incentives and otherwise, EVerDate Nov 24 2008 10:39 Jun 28, 2010 Jkt 056800 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\56800.TXT SJUD1 PsN: CMORC
6 

Verify can really make a difference. We are committed to making 

it better. 

We are expanding our efforts to identify, arrest, and deport 

criminal and fugitive aliens. We are working on improving the 

287(g) program so we continue to work effectively with proper guidance and oversight with our State and local partners. And we are 

doing the same with respect to detention of ICE detainees, making 

sure that if they are detained by force of the rule of law they are 

receiving appropriate treatment and health care. 

Finally, we are working to strengthen and standardize travel and 

identity documents and improve our ability to confirm identity. We 

are on track to implement the Western Hemisphere Travel Initiative requirements on June 1st of this year at our land and sea 

ports of entry. We are doing exhaustive outreach to our border regions. We have identified a range of WHTI-compliant credentials 

available to citizens from passports to passport cards to Trusted 

Traveler cards. 

We have added ID readers at 33 of our ports and will soon have 

them at the top 39 ports that account for, I think, roughly 80 to 

85 percent of the traffic that crosses the border, and we are improving the capabilities of US–VISIT, moving from two-fingerprint 

identification to ten-fingerprint collection. 

We are working as well with the National Governors Association 

to identify ways to strengthen the security of the driver’s license. 

We need to find a workable solution that brings the States into 

compliance, fulfills our security goals, but does not operate as an 

unfunded mandate to cash-strapped States. This is a fairly full 

plate, and I have just mentioned several of the major items that 

are underway at the Department. 

Let me close with this: One of the best things I have found as 

the new Secretary of Homeland Security is in the men and women 

who work for this Department. There are 218,000. They work hard 

every single day to meet the challenges that we have and to protect 

the American people, and I am proud to serve as their Secretary. 

I look forward to working with this Committee in these and other 

areas, especially as we take up the issue of comprehensive immigration reform. 

And, with that, Mr. Chair, I look forward to the Committee’s 

questions. 

[The prepared statement of Secretary Napolitano appears as a 

submission for the record.] 

Chairman LEAHY. Thank you. Madam Secretary, we will put 

your full statement in the record, as well as my full statement in 

the record. And as I noted in the beginning of that, I appreciate 

and I think all Americans appreciate your leadership in the face of 

the swine flu threat. 

I was struck by your written testimony—and you referred a little 

bit to it here, too—regarding REAL ID reform and reaching out to 

the Governors of our States to develop a better alternative. You 

were a Governor, and you understand the problems of a Governor 

in a border State, too. Legislation is currently being discussed in 

the Senate to reform the REAL ID law. I understand the Department has had some opportunity to review and comment on the proposed legislation. 

7 

Would you agree, at least as a basic start, that we would accomplish a lot more if we had a law that the States would support and 

could implement more easily? In other words, if we had something 

that the States could really be on board with? 

Secretary NAPOLITANO. Yes, Mr. Chair. I think that our experience under the existing law, which is known as REAL ID, has been 

bipartisan among the States and unanimous that they do not like 

it and cannot meet its requirements and feel that it was an unfunded mandate at a most unfortunate time. 

We have been working, since I became Secretary, with a bipartisan group of Governors as well as legislators to craft a solution 

that unites the goals of the REAL ID with a better way for States 

to be able to implement it, and I believe a bill, if it has not yet been 

introduced, soon will be introduced to allow us to do that. 

Chairman LEAHY. Let us work together on that because we will 

pass legislation. We are all hearing from our—most of us are hearing from our Governors, and we want to pass something that 

makes the situation better, not worse. And so we will call on you 

on that. 

When you and I met earlier this year, we talked briefly about the 

EB–5 Regional Center program. That is something that is important in Vermont. It is important in Alabama. It is important in a 

number of other States. It allows foreign investors to obtain legal 

permanent residency, provided they have made a substantial investment in an American development project. Billions of dollars 

have come into the United States since that began, the 1990s, and 

thousands of jobs have been created for Americans. We reauthorized it over and over again, sometimes for a short period of time— 

6 months and so on. 

Would you support legislation to make the EB–5 Regional Center 

program permanent? 

Secretary NAPOLITANO. Mr. Chair, I would support the principle 

of making it permanent. I would want to actually see the legislation, of course. 

Chairman LEAHY. Of course. I understand. 

Secretary NAPOLITANO. But obviously this is a way of attracting 

investment dollars, and it is tied directly to the creation of jobs 

right here in the homeland. 

Chairman LEAHY. But would you agree that if everybody looks 

at it and says, well, you know, this thing could be turned off at the 

end of 6 months and all, we ought to have something that makes 

it a little bit more concrete than what it is today? 

Secretary NAPOLITANO. It makes sense. If the goal is to attract 

investment dollars that lead to the creation of jobs, investment dollars requires stability. And so that approach would make sense. 

Chairman LEAHY. Let me go to something that Senator Kyl and 

I worked long and hard on with the prior administration, and that 

is on the waiver authority we gave DHS and State Department for 

those seeking asylum or who are refugees, because we have the 

material support and terrorism bars in the immigration laws, 

which on their face seem like a good idea, but they are so broad 

that somebody, even somebody who has been forced into servitude 

in some of these terrorist groups are offered. If they escape, or seek 

asylum, they are suddenly barred; or people who have worked with 

8 

us, have helped us gain intelligence and all, suddenly they are 

barred. 

Are you revisiting the interpretations of material support of terrorism and terrorist acts to find a better way to handle this? 

Secretary NAPOLITANO. Yes, Mr. Chairman, we are. It is being 

examined by several elements within the Department of Homeland 

Security to see how best we can accomplish the goals of that waiver 

authorization. 

Chairman LEAHY. Would you keep in touch with both myself, 

Senator Kyl, and others up here who are involved in this? Because 

we have got to have a better way. I just do not want people whom 

we have sought to help continue to be barred from seeking asylum 

here, having helped us, and who face prospects of execution in their 

home states or their home countries. And we are, after all, the 

country that has always been a beacon to people who have been oppressed, people who have faced death in their own country. And we 

want to keep that going, so please work with us on that. 

Secretary NAPOLITANO. Absolutely. 

Chairman LEAHY. My time is up. I yield to the Ranking Member. 

Senator SESSIONS. Thank you. 

Madam Secretary, you wrote that you announced new guidance 

for our agents in the field—you wrote in your letter to me that I 

received last night—′′directing them to target both illegal workers 

and employers that create incentives for aliens to illegally cross our 

borders, which I think is the law and sound policy, and I appreciate 

that. 

But, you know, this little flap over the raid that I mentioned earlier is a matter of some concern. One of the things that was disturbing to me, apparently, was that some spokesman made the 

comment that there was a personal commitment by the President 

to certain immigrant rights groups, and that this raid violated 

that. Are you aware of that? Could you explain what was referred 

to in that news article? 

Secretary NAPOLITANO. No, I cannot, Senator. I do not know that 

article. But I can tell you that the President is very committed to 

the enforcement of our Nation’s immigration laws, and he has 

charged me with that responsibility. 

Let me, if I might, follow up on the Bellingham—this is the Bellingham raid that you are referring to. 

Senator SESSIONS. Right. 

Secretary NAPOLITANO. The reason that I said I would be looking 

into it was that there was an existing process within the Department of Homeland Security that pre-existed my tenure there that, 

before raids like that were undertaken, there was to be notice 

given up the chain to the head of the Department, and that communication had not occurred. So there was a breakdown in communications under existing Department policy, and obviously—and as 

you yourself noted, when you head a major office like this, a U.S. 

Attorney’s Office, AG’s Office, one of the important things is to 

have knowledge of what enforcement actions are being undertaken. 

Second—— 

Senator SESSIONS. Well, Madam Secretary, that can have a 

chilling effect, and your comment, I think, was, ‘‘We are going to 

get to the bottom of it.’’ So you are saying that you did not intend 

9 

to signal to your agents that they should not do workplace raids 

in the future? 

Secretary NAPOLITANO. No. I intended to signal that they should 

follow the protocols that were in place. 

And, second, with respect to the agents, we are not investigating 

agents. The questions I asked were law enforcement questions. For 

example, what was the plan vis-a-vis the employer? Had they 

sought to get search warrants and had those been turned down? 

And if so, why? Did they have a prosecution agreement with the 

U.S. Attorney’s Office in that district? Had they sought one? If not, 

why not? If they had, what was the status of that? 

And that leads to the third issue I think you had there, which 

was the issue of some of the workers who were arrested being released and allowed to work. That was a practice under my predecessor and has been a practice in worksite enforcement actions for 

many years, and the purpose and what you do there is sometimes 

you arrest the worker, and then you give them a delayed departure 

in order to get their evidence, their cooperating evidence against 

others that you may be seeking to prosecute, particularly those for 

whom you have to establish an intent requirements. It is only a delayed departure. When that cooperation period is over, they are 

then removed from the country. 

Senator SESSIONS. Well, I would just suggest that I do not think 

there has been another raid of that kind since, and it may be the 

unintentional result of your comments and actions that the agents 

got the message. So we will see how those go in the future, but I 

do agree that employers who violate the law, who knowingly do 

this, if they know that you are serious about this, I think most of 

them will comply, and there will be a fairly small number that 

need to be prosecuted. And I hope that you will move forward on 

that, and I think it could have a big positive impact on the difficulties we have been facing with the immigration policies. 

Madam Secretary, the problem of the Uyghurs that are held at 

Guantanamo who are certified to have been trained at a terrorist 

camp, the U.N. has recently re-established Mr. Haq the head of 

their extremist organization as a terrorist organization, as has the 

U.N. and the United States, but it appears to me, contrary to law, 

the Attorney General is suggesting that those Uyghurs, since no 

one else wants to take them, would be released in our homeland. 

And under the statute, Title 8 U.S.C. 1182(a)(3)(B), it flatly prohibits people who trained in terrorist training camps from being 

admitted into the United States. 

Congressman Wolf I believe has written you a letter about that. 

He is a champion of humanitarian causes worldwide, but he believes that this also raises serious legal questions, and it sort of 

falls in your bailiwick. The Attorney General is not before us, but 

I know he is wrestling with what to do. 

So I would ask you: What are the plans with regard to these 

Uyghurs? And are you aware that, according to my reading, it is 

flatly prohibited for them to be released into the United States? 

Secretary NAPOLITANO. Senator, several things. 

First, going back to your earlier question, I know of at least one 

workplace action that happened after Bellingham, so we continue 

worksite enforcement, and we have a multi-State human smugVerDate Nov 24 2008 10:39 Jun 28, 2010 Jkt 056800 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\56800.TXT SJUD1 PsN: CMORC
10 

gling major action going on today. So we continue all of our enforcement actions, and we will very vigorously. 

With respect to the Uyghurs, this is part and parcel of the President’s decision to close Guantanamo, and in addition to the statutory law, there are court orders with respect to release of the 

Uyghurs that are in place. The Attorney General has been directed 

by the President to put together a Committee on which the Department of Homeland Security sits to deal case by case with each of 

the individuals, including the 17 Uyghurs. 

Chairman LEAHY. Senator Kohl. 

Senator KOHL. Thank you, Mr. Chairman. 

Madam Secretary, over the past several days, Federal officials 

have advised schools to close if they had probable cases of the 

swine flu. But, yesterday, Federal officials changed their mind and 

advised schools to reopen. 

Is there a one-size-fits-all answer to every school? And what are 

you doing to assist local school officials in determining whether 

they should reopen? 

Secretary NAPOLITANO. Senator, yes. The advice did change, and 

what we have done from the beginning of the H1N1 outbreak is say 

we are going to be guided by the advice of the doctors. What is it 

that we need to do to protect the safety of the American population 

from the spread of this new strain of flu? But we were very careful 

to say that that is going to change as they go through and the scientists find out more about the flu. And as we have gone through 

the past days, what they have learned is that some of the lethality 

factors that could be present in a new strain of flu did not appear 

to be present, and that even people who contracted this flu were 

not experiencing flu worse than the normal seasonal flu. Now, realize in a normal seasonal flu, 36,000 Americans will die. But, nonetheless, it was not more severe than that. 

And so after that consideration and, again, the accumulation of 

knowledge, the CDC changed its school advice. And so that revised 

guidance went up at the CDC yesterday. 

What we are doing is a whole host of things with respect to communication, but the number one thing we have done with respect 

to schools and school guidance is drive people to the CDC website 

and the Department of Education and worked with them. 

We will continue to do that because even though this outbreak 

now we seem to have reached kind of ‘‘active caution,’’ if I might 

use that phrase, with respect to it, we are very much aware that 

we could have an even more severe outbreak in the fall when our 

normal flu season being. And what we learned in these past weeks 

is the schools are a central part of how you can contain and what 

you have to make decisions on when you have a pandemic. So I 

think we need to further refine our decisionmaking about closures 

in the event that we do have a more serious outbreak this fall. 

Senator KOHL. Madam Secretary, most people agree that our current immigration system is fundamentally broken and that the status quo is not acceptable going forward. President Obama has signaled his desire to fix the system. In your opinion, what are the 

basic principles that should guide the overhaul of the immigration 

system? 

11 

Secretary NAPOLITANO. Mr. Senator, I think there are several 

things. One is you have to have a strong and effective enforcement 

strategy that is sustained over time, and your enforcement strategy 

has to be a system that is not just at the border but includes the 

interior of the country as well. 

The second is that you need to look at reform of the entire visa 

system—in other words, how we award visas, what are the criteria, 

how long, or how many are granted, particularly in certain categories. That needs to be re-examined. 

And then, third, the Congress is going to need to address what 

do you do with the people already in the United States, many of 

whom have been here for a number of years, who are undocumented, who are here illegally. 

Senator KOHL. Do you have an opinion on that third point? 

Secretary NAPOLITANO. I would prefer to do that in the context 

of when the President and the Congress take up an overall approach to this immigration issue. I am focused now, as I believe my 

charge is, to enforce the law that we have and to do it intelligently 

and effectively. 

Senator KOHL. Madam Secretary, last April, GAO released a report on whether the Government was prepared to evacuate vulnerable populations, such as nursing home residents, in the event of 

an emergency. At that time the Department of Homeland Security 

had not implemented GAO’s recommendations to require their 

State and local grant recipients to plan, train, or conduct exercises 

on such evacuations. 

What steps is DHS taking to ensure that vulnerable populations 

are not abandoned during emergency evacuations? 

Secretary NAPOLITANO. Thank you, Senator. A number. One of 

them is we have gone back and are in the process of going back 

through a number of the GAO reports that have been issued in 

prior years to say, well, what has the follow-up been and where are 

we. 

Second, we are beginning to do some exercises to identify where 

State and locals are in respect to evacuation of special needs populations. I cannot be sanguine here. I think that there are still 

issues to be worked out, and particularly in some places of the 

country where you are dealing with potentially enormous evacuations, logistics still have not been met. So we have some work to 

do here. 

Senator KOHL. Have you taken note of some of the extraordinarily good things that I believe have been happening in Florida 

with respect to preparing for those kinds of evacuations? 

Secretary NAPOLITANO. There are a number of States that have 

done a number of good things. I think one of the things we are concerned about right now is States that were making great progress 

and cities that were making great progress in their public health 

plans, their evacuation plans, the resources they would have in 

case a disaster were to strike, a lot of that has been put on hold, 

and a lot of the personnel that would be involved in carrying out 

those plans have been furloughed because of their budget situation. 

So the strain on the Nation from the economy is going to have and 

is having some impact on the preparations that were underway. 

Senator KOHL. Thank you. 

12 

Mr. Chairman, thank you. 

Chairman LEAHY. Thank you. 

Senator Feinstein. 

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

Welcome, Madam Secretary. I want to just begin by thanking 

you for your attention to the border. As a border State, it obviously 

is of substantial importance, and the cartels have been creating 

havoc and violence for much too long now, and it is infiltrating, as 

we discussed, through the border into our States. 

I wanted to ask you a couple of questions. The first is—and I will 

ask two at one time. Has there been any appreciable reduction in 

violence at the border since you began? And, second, would you describe the Department’s effort to trace the origins of guns seized at 

the border? How is ATF coordinating with your Department to investigate gun trafficking on both sides of the border? 

Secretary NAPOLITANO. Thank you, Senator. Yes, we have seen 

a reduction in violence. I do not think it would be appropriate for 

me to claim credit for that. I think the number one factor in that 

was the decision of the President of Mexico to send the military 

into Juarez, which has had a very strong impact on the number of 

homicides that were happening in the State of Chihuahua. 

Senator FEINSTEIN. So it is working. 

Secretary NAPOLITANO. That is working. The question there will 

be how long can it be sustained, and that is why we have to continue to work with Mexico on getting at the root cause of that violence on the part of these cartels, which, as you noted, have 

plagued us for far too long. So we want to continue those efforts 

working with Mexico. 

In terms of the border communities on our side of the border, I 

have been to many of them since I have been Secretary. We are 

having regular conference calls with the sheriffs and police chiefs 

along the border. What they report to me is they are not seeing any 

upswing in violence or spillover violence because of the cartel war 

in Mexico. It is obviously something that we want to stay on top 

of and be proactive about because that is the last thing any of us 

wants to occur. We are going to keep those efforts up. 

Senator FEINSTEIN. And the guns? 

Secretary NAPOLITANO. With respect to the guns, the key issue 

there is for Mexican law enforcement, when they find a gun that 

has been used in the commission of a crime, to immediately give 

us the information so that it can be traced, and so the source of 

the guns can be determined. That is in process now. We call it the 

E-Tracing Initiative. We are working with ATF on that. In addition, we have added a lot of resources to what we call our ‘‘southbound strategy,’’ more inspectors, dogs, metal detectors, and the 

like on the southbound lanes going into Mexico where previously 

there had been none. In that process, we have already seized a 

number of weapons that were illegally going into Mexico. 

Senator FEINSTEIN. Good. Let me ask you a question, if I might, 

about the Visa Waiver Program. I have worked for a number of 

years to try to mitigate the risks that I believe this program produces for our Nation. It has been expanded now to 35 countries, 

but DHS still does not keep track of who is entering and exiting 

the United States at all points of entry. And if those who enter 

13 

through the Visa Waiver Program, in fact, leave the country or 

overstay their visits or remain within our borders, that is still unknown. 

So my question is this: What steps are you taking to track who 

has entered the United States through the Visa Waiver Program 

and if, in fact, they have left or overstayed the program? This has 

never been done. We do not know. And I think the time has come 

for it to be done—the tracking, that is. 

Secretary NAPOLITANO. Yes, Senator. And there are obvious reasons to do it that way because then you know exactly who is in the 

country, how long they are entitled to stay, and if they are an overstay, to take appropriate action. 

With respect to the Visa Waiver Program, let me say that from 

an air travel standpoint, ESTA is in the process of being implemented. A number of carriers are now using it, and that is being 

added onto almost weekly now. So that remains very effective. And 

through US-VISIT and other programs, we are looking at ways to 

enhance that. 

The problem you identify is much bigger than a visa waiver problem, and that is, how do you measure who has left the country not 

just at the airports—and I believe that over the next years there 

will be a way to improve our ability to track at airports who has 

left. It is the land ports, because there we really do not have yet— 

and I hesitate to say how much it would even cost to do so—a process by which we really match who is in with who is going out. I 

would be happy—and really have put it on my radar. What can we 

do as a Nation to solve that particular problem? 

Senator FEINSTEIN. It is a big problem. 

Secretary NAPOLITANO. Huge. 

Senator FEINSTEIN. It is the soft underbelly of this country. 

Secretary NAPOLITANO. It is huge. 

Senator FEINSTEIN. So thank you very much. My time is up. 

Chairman LEAHY. Senator Grassley. 

Senator GRASSLEY. Thank you. 

Chairman LEAHY. You came in. I thank you. Good to see you 

here. 

Senator GRASSLEY. Thank you, Mr. Chairman. 

What I am going to ask you, Madam Secretary, you had nothing 

to do with, but you can correct it, so I want to bring this up. 

[Laughter.] 

Chairman LEAHY. Aren’t you glad you came? 

Senator GRASSLEY. Last month, the Government Accountability 

Office released a report that I requested analyzing cooperation between DEA and other law enforcement agencies. This report was 

a real eye opener for me, and the findings were even worse than 

I had anticipated. Chief among the findings was that the current 

outdated Memorandum of Understanding for narcotics investigations, referred to as Title 21, is outdated, and because of that 

‘‘there is a potential for duplicative investigative effort and concerns that officer safety could be compromised,’’ with ‘‘officer safety 

could be compromised’’ emphasized. So a serious finding. 

The GAO essentially confirmed that longstanding turf wars between DEA and ICE have created an environment dangerous to 

our own agents. So I say that that is unacceptable. 

14 

The GAO ultimately made three major recommendations: One, 

that the Secretary of Homeland Security and the Attorney General 

show leadership and renegotiate outdated MOUs; two, that the 

Secretary of Homeland Security immediately order ICE to participate in the DOJ Fusion Center; and, three, that DHS and DOJ create a mechanism to review MOUs periodically so we do not end up 

here again like 15 years since they have been negotiated. 

These recommendations are long overdue, and I wrote to you this 

letter April 21st, which is not so long ago compared to how long 

it usually takes to get answers from bureaucracies, and not necessarily your Department. I asked you to implement these recommendations. To date, I have not heard a reply. These law enforcement turf battles are unacceptable in this post-9/11 world. So 

several questions. 

Could I expect a written reply soon from you? 

Secretary NAPOLITANO. Absolutely. 

Senator GRASSLEY. Okay. Will you commit to immediate implementation of GAO recommendations—after you have had a chance 

to study them, obviously? If you do not know them, as I do, I would 

not expect you to answer if you have not studied them. But I hope 

that you would look at them and implement them immediately. 

Secretary NAPOLITANO. Senator, the Attorney General and I have 

already been—before the GAO recommendations came out, we were 

discussing these outdated MOUs, particularly with respect to Title 

21 authority. Some of those MOUs date back to—I think one of 

them is 1975. I mean, they are really old. 

He and I served as U.S. Attorneys together, actually, and it is 

our commitment to update those and make sure those MOUs 

match the reality of law enforcement today. 

Senator GRASSLEY. Have you ordered ICE to begin participating 

with the Fusion Center? 

Secretary NAPOLITANO. ICE does participate with Fusion Centers 

in different ways in different parts of the country, but I would be 

happy to provide you more detail on that. 

Senator GRASSLEY. Okay. Well, again, then I would hope that 

you would use GAO recommendations as a baseline for that. 

Would you ensure that ICE begin participating—well, this was 

going to be a follow-up question. And you obviously believe then— 

you just told me that the MOUs should be updated immediately. 

Secretary NAPOLITANO. Yes. 

Senator GRASSLEY. You are in the process of doing that. Do you 

believe that the current cap on the number of cross-designated ICE 

agents who are authorized by DEA to investigate Title 21 cases 

should be increased? 

Secretary NAPOLITANO. I think that is something that goes along 

with redoing the MOUs, and it makes—well, take the cross-border 

issue I was just discussing with Senator Feinstein where you have 

ICE agents really actively involved in doing cartel casework, not to 

have Title 21 authority, and to have to shift cases over to DEA, 

that is something that really needs to be thought through again, 

in light of the changing law enforcement needs that we have. So 

the Attorney General and I have committed to work together and 

to update those basic operating documents. 

15 

Senator GRASSLEY. Okay. And my last question then: Do you believe that ICE should be given statutory Title 21 authority? Or do 

you believe that this matter can be worked out administratively 

through the process to revise MOUs? 

Secretary NAPOLITANO. Senator, I think it might be quicker to 

try to work this out administratively between the Department of 

Justice and the Department of Homeland Security. I would like to 

take that crack first. 

Senator GRASSLEY. Well, and I will be observing how that is 

going, and I hope you would consult with me. I am one that has 

been dealing with this for so long that I think we ought to take action. But it would be faster if you could do it, and I hope you are 

successful. 

Secretary NAPOLITANO. Thank you. 

Senator GRASSLEY. Thank you, Mr. Chairman. Mr. Chairman, I 

am done. 

Chairman LEAHY. Thank you. We have a roll call that started. 

Senator Durbin, why don’t you start? I will go and vote and come 

right back. Then if there is another Republican back here at that 

time, he will follow you, Senator Durbin. If not, another Democrat. 

Senator DURBIN. Thank you, Mr. Chairman. 

Madam Secretary, thanks for being here. As a former Governor 

of a border State, the story I am about to tell you may sound familiar. Two weeks ago, I had a meeting in Chicago with students from 

one of our leading high schools. I met a young woman who was valedictorian of her class and was on a winning team in a science 

competition who had been accepted at an Ivy League university 

and was looking forward to pursuing a degree in biology, which 

may lead to medical research or becoming a medical doctor. But 

she had a problem. She came to the United States when she was 

2 years old. She was brought by her parents from Mexico. Her parents sold corn on the street corners, and she grew up here. She 

speaks perfect English. She has never known another country in 

her entire life. And she is undocumented. 

I have introduced a bill for 8 years now called the DREAM Act. 

My cosponsors this year include Senators Lugar and Menendez. 

And it says for young Americans—or young people living in America in her circumstance that they be given a chance through either 

2 years of service in the military or the completion of 2 years of 

college to move toward legal status. I am hoping—praying—for so 

many young people who are counting on this that we will have a 

chance to consider and pass that this year. 

Could you tell me your opinion of the DREAM Act? 

Secretary NAPOLITANO. Yes, Senator. As a Governor of a border 

State, this is one of those areas where everyone wants the immigration law enforced, we must enforce it, it is part of our national 

sovereignty, among other things. 

On the other hand, we have to have the ability to deal with some 

of the human issues that arise here, and the one that you have 

identified is one of the most acute. 

I supported the DREAM Act when I was Governor. I support it 

now. One of the most moving things I have been privileged to do 

as Secretary is to administer the oath of citizenship to men and 

women in our military who have been serving in Iraq, who were 

16 

not citizens, who have elected to become citizens. In a way, it kind 

of mirrors what you are talking about in the DREAM Act. But it 

seems to me that the DREAM Act is a good piece of legislation and 

a good idea. 

Senator DURBIN. Thank you. 

The first hearing I had of the Crime Subcommittee was on the 

Mexican drug cartels. I am going to describe for the record a case 

which you are familiar with because it involves your State of Arizona. 

In March, a State judge in Arizona dismissed charges against a 

gun dealer accused of knowingly selling about 700 weapons 

through intermediaries to two smugglers who shipped those weapons from the United States to a Mexico drug cartel, over 700 weapons. Several of these weapons were recovered in Mexico after shootouts with the police, including a gunfight last year in which eight 

Mexican police officers were killed. 

This case shows how difficult it is to convict gun dealers who are 

knowingly supplying weapons to the Mexican drug cartels. Federal 

law currently does not have tough criminal statutes on the books 

specifically aimed at arms traffickers. In order to prosecute gun 

dealers and purchasers who knowingly supply guns to Mexican 

drug cartels, prosecutors often have to charge these individuals 

with paperwork violations such as making false statements on the 

purchase forms, and these offenses carry low penalties and can be 

very hard to establish. 

What is your view of this situation? Is it simply a question of additional resources and personnel to deal with this exporting of guns 

to the Mexican drug cartels? Or do we need to make sure that our 

laws allow us to prosecute those who knowingly supply weapons to 

these Mexican drug cartels? 

Secretary NAPOLITANO. Senator, where we are taking this is to 

more effectively enforce the laws currently on the books. For example, until we began our southbound strategy, there really was no 

process by which we were even finding the guns that were being 

exported illegally across our borders. Second, improving the intelligence gathering about who is really funneling arms to these cartels. 

So my view right now and my charge is to take the laws that 

we currently have and to fill the gap between the law on the books 

and what actually should be done from an enforcement status. 

Senator DURBIN. But I guess what I am asking you is whether 

you have an opinion—and maybe you do not at this moment—as 

to whether the laws are adequate. This situation I just described 

to you is egregious. Your Attorney General of the State of Arizona 

has been a leader and testified at our Crime Subcommittee hearing 

about the problems he has run into in trying to deal with this 

issue. 

If you have an opinion, do you believe that we need to strengthen 

the laws when it comes to trafficking and smuggling firearms from 

the United States into any country, including Mexico? 

Secretary NAPOLITANO. I do not have an informed opinion because I think that opinion needs to be informed by, when you increase your enforcement strategy, what results you can actually obtain. I would rather be given some time to really do that and report 

17 

back to you about what we are getting from our strategy with the 

existing laws. 

Senator DURBIN. I wish you would. 

Secretary NAPOLITANO. Yes. 

Senator DURBIN. One last question, if I might, on H–1B visas. 

Senator Grassley and I have introduced legislation to correct what 

we consider to be clear abuses. The most outrageous abuses when 

it comes to H–1B visas include the fact that some major companies 

overseas, primarily in India, have successfully managed to marshal 

many of these H–1B visas and make a profit off of them. They 

charged the citizens of India coming to the United States on H–1B 

visas, and then after 3 to 6 years when they are to return to India, 

they charge to place them in companies which will then compete 

with the United States. That is certainly not the stated intent of 

anyone who has come to me asking for H–1B visas. 

Second, there is a serious concern, a very serious concern that 

Senator Grassley and I share, that many of these H–1B visa holders are going to displace American workers or be placed in a position where unemployed American workers might otherwise have an 

opportunity. And we think this has to be carefully monitored. We 

feel—and I hope you share—that our first obligation is to American 

workers, and to encourage, if not hold accountable, those firms that 

are looking to fill spots to first turn to the talent pool in America, 

and particularly those who have lost a job. 

Do you have any opinions on the H–1B visa program? 

Secretary NAPOLITANO. Yes, Senator. First, I agree with you. Our 

top obligation is to American workers, making sure American 

workers have jobs. From an enforcement standpoint, my priority is 

to make sure that there is not fraud occurring within the H–1B 

program at all. 

Over the last months, we have added some tools. We have added 

fraud prevention tactics. We have begun looking at other more 

standard fraud investigatory techniques that were not being used 

in H–1B that we are now going to employ, including things like site 

visits and worksite visits. 

We are going to keep at this to make sure that the intent of that 

program is fulfilled. 

Senator DURBIN. Thank you very much. 

Senator CARDIN. Madam Secretary, first of all, thank you for 

being here. Thank you for what you have been able to do and your 

commitment to our national security and homeland security. 

I want to start with a hearing I chaired yesterday on the Terrorism and Homeland Security Subcommittee dealing with the 

issuance of passports. I know that is not under your agency, but 

passports are very much in your portfolio as far as national security and homeland security are concerned. 

It was brought to our attention through Senator Feinstein and 

Senator Kyl, a GAO report in which they fabricated documents in 

four cases, and in four out of four, they were able not only to get 

passports but to get boarding passes for flights. 

We looked at the type of information that was used to get the 

passports. The driver’s license I think on its face should have been 

determined to be a fraud, and in two cases, they used Social Security numbers that were fraudulent, and if they did the checks, it 

18 

would have shown that they were inappropriate. They did not go 

through the checks. Four out of four is unacceptable. 

I just want to bring that to your attention. I can assure you that 

this Committee is going to continue to oversight that and do everything we can to make sure that passports remain the gold standard 

for identification. But I would hope that you would show some interest in this and follow up to make sure that from the point of 

view of your reliance on passports you have a right to believe that 

only those who are entitled to receive passports are receiving passports. 

Secretary NAPOLITANO. Yes, Senator. I concur and share those 

concerns, and there is also the issue of the use of lost or stolen 

passports as well. So, yes, we are paying quite a bit of attention 

to this. 

Senator CARDIN. Let me go to another hearing we had in our 

Subcommittee which dealt with sharing of information among intelligence agencies as well as with local law enforcement, and this 

has been a continuing battle. Former Senator Gorton pointed out 

that he felt that there were enough laws on the books, but that 

they were not being used appropriately to make sure that the right 

information was placed in the data bank and there was appropriate 

access to that information and that we had not quite got that done 

yet, and local law enforcement could very well stop someone and 

not have the information they need in order to protect our homeland security. 

On the other side of that, I would bring to your attention the circumstances of the Maryland State Police where they used resources 

for an investigation for over a year into lawful protesters who were 

exercising their First Amendment right to express their opposition 

to the war and to the death penalty. That information was then 

made available to Federal agencies inappropriately, and it is still 

unclear whether that is in our data bank or not. 

So I bring this to your attention because I know that you called 

for a review of how information is shared, and I was hoping that 

you could perhaps bring us up to date as to where we are in your 

review as to whether we can improve the way that we bring information into our data banks and share it with local law enforcement 

and protect the privacy and civil liberties of the people of our Nation. 

Secretary NAPOLITANO. Yes, Senator. Our review is not yet complete, but let me share with you a few of the things that I have 

found. 

No. 1 is our sharing of information with State, local, and tribal 

law enforcement is inadequate. In other words, a lot of it is not 

operational. It does not really inform somebody what specifically 

they are looking for and why. We want to improve that real-time 

data sharing and improve the mechanisms by which we get information back, because really from a law enforcement perspective, 

the vast majority of the eyes and ears out there are police officers 

and sheriff’s deputies and tribal police officers and the like. And we 

do not really have a good way to collect what they are seeing. 

So I look forward and hope the Senate will confirm the nominee 

to be the head of our Intel and Analysis Division, because one of 

his charges is going to be—and one of the value-added things I 

19 

think our Department can contribute—is to take all of this intel 

that is out there and make it more value added for State, local, and 

tribal law enforcement. 

The second thing I have added is that we must do a careful job 

of what I call a privacy analysis of what we are doing. We have 

brought into the Department an expert on privacy law to help us 

and to look at things that are being done, practices that are being 

carried out to advise us on the privacy issues that are implicated— 

all the more important because once something is in a data base, 

it is almost impossible to take out of a data base. So we have added 

that as part of our own internal procedure. 

Senator CARDIN. Congress has passed a law that established a 

Privacy and Civil Liberties Oversight Board, and it has never been 

appointed. Will you take a look at what your position, what the administration’s position is going to be in regards to moving forward 

with that oversight board, which was recommended by the 9/11 

Commission but has never been implemented? And if you are prepared to answer that question now, fine. If not, I would appreciate 

you getting back to us, letting us know whether we can look forward to that board becoming effective. 

Secretary NAPOLITANO. Senator, that one I will have to get back 

to you on. 

Senator CARDIN. I could tell by your expression, so I appreciate 

that and would welcome that. 

Let me just last point out one other issue, and then I am going 

to turn it over to Senator Whitehouse, and that deals with the biological security at our labs, which is an immediate concern to me. 

Fort Detrick is located in the State of Maryland. It was the location 

where the anthrax occurred, where our security was breached. And 

I just want to bring that to your attention that our Subcommittee 

is also going to spend a good deal of effort looking at the relationship between the different agencies because there are so many 

agencies involved. And one of our concerns is that as we have consolidated our homeland security in one agency, there are still lots 

of responsibilities in other agencies. And here the FBI has a responsibility, the Department of Justice, and we need to better coordinate to make sure that we are using consistent standards, who 

has access to biological elements for the security of our country. 

And I would just urge that we work together to make sure we have 

a consistent policy and one that protects the security of our country. 

Secretary NAPOLITANO. I could not agree more. 

Senator CARDIN. Thank you. 

Senator Whitehouse. 

Senator WHITEHOUSE. Thank you, Mr. Chairman. 

Madam Secretary, good to be with you. 

Secretary NAPOLITANO. Senator. 

Senator WHITEHOUSE. You are now the Secretary of Homeland 

Security, but earlier in our careers, we were both United States Attorneys and Attorneys General with considerable responsibility for 

what I might call ‘‘hometown security.’’ And if there is a refrain I 

hear more often than any other from my police chiefs in Rhode Island, it is that the budget for homeland security has ballooned in 

recent years to the point where they have funds at their disposal 

20 

to buy things that they, frankly, think are almost ridiculous, while 

at the same time, the key elements of hometown security have 

been whittled away at. You see repeated efforts in the previous administration to cut the COPS program, to cut Byrne grants. You 

see very important areas like the re-entry of folks once they have 

served their terms of incarceration back into society getting scarce 

attention. And I just want to hear your thoughts philosophically on 

the extent to which we have properly balanced homeland and 

hometown security and whether you are willing to work with Attorney General Holder to rebalance that. 

I will put my opinion right out there on my sleeve. I think that 

homeland security was favored at the expense of hometown security, and there is, I think, a reasonable case to be made that it was 

done for political purposes to make America look like it was on a 

wartime footing with respect to the whole terror issue in order to 

support the notion that this is a wartime President who we all had 

to rally behind. 

So I am not sure that the case was made in the Bush administration entirely on the merits of the physical security of the American 

people, and I would like your thoughts on that balance. 

Secretary NAPOLITANO. Thank you, Senator. You know, it is a responsibility of the Department of Homeland Security, in my view, 

to provide resources that would enable hometown security, your 

local police departments, sheriff’s offices and the like, to add onto 

their responsibilities the whole counterterrorism province, which 

previously they had not really been charged with. But everybody 

has a role to play here. 

The initial grant process out of the Department—— 

Senator WHITEHOUSE. I guess the scope of that role is what my 

questioning is about. It really strikes me as not all that necessary 

for, you know, Cranston, Rhode Island, to be regularly involved in 

anti-terrorism planning or for folks in South Providence to see facilities being used for anti-terrorism planning when murders are 

happening regularly on those streets that are not getting adequate 

attention. 

Secretary NAPOLITANO. Senator, there I would suggest that the 

local law enforcement role never changed, and that was always 

local and State obligations to pay for, with the augmentation of 

things like the COPS program, which I strongly support and which 

I think had a real benefit on those kinds of cases. What the Department of Homeland Security’s function was was to add on to 

that. 

Now, I think there were some things, as the Department was 

stood up, that we have grown through, for example, how grants are 

distributed and what will be paid for. I think too often we paid for 

the newest widget, law enforcement widget, you know, the fancy 

whatever, truck or whatever, as opposed to really looking at risk 

and looking at manpower and effective technology. And those are 

the things that I think really need to be our funding types of priorities. So as we have gone through this, I think we can become 

much more sophisticated, as it were, in terms of what is the real 

value added of a Department of Homeland Security, but that basic 

law enforcement function in terms of crime on the street—murders, 

21 

armed robberies and the like—remains a State and local prerogative. 

Senator WHITEHOUSE. I would love to get to a place where the 

State and local folks who are enforcing that prerogative are doing 

a little bit less scratching of their heads as to why the Federal Government is putting so much money into things that they consider 

to be of marginal or limited utility while real and pressing problems that affect the security of homes and neighborhoods are left 

unaddressed. So I just want to let you know that to the extent that 

is the discussion that you care to have, this is where I am on it. 

Secretary NAPOLITANO. All right. 

Senator WHITEHOUSE. The other thing I want to discuss with you 

is cyber security. It is a very significant problem, and I want to 

share with you my concern that the classified elements of the previous administration’s cyber strategy in my view put us on a collision course with very basic civil liberties questions if the trajectory 

is not adjusted and adjusted fairly soon. I do not know exactly 

what is happening at this point in the 60-day review that has been 

taking place that is getting near to its end. But I would encourage 

you to actively look at that question and be alert to that particular 

problem. If you extend the Bush strategy, I believe, on the trajectory that it was launched on, it drives you to a civil liberties collision that is unnecessary and I think unhelpful. It would create a 

whole element of drama and fighting and concern about an issue 

where I think if it is properly designed, we can come together, because we have a huge common interest in preventing cyber attack. 

Secretary NAPOLITANO. Senator, I agree, and it has been one of 

my top priorities as Secretary to be engaged with that 60-day review, to be identifying people to bring in the Department who are 

experts in the cyber world, and to really understand the leadership 

role that I believe the Department of Homeland Security will need 

to play here, both with respect to the dot-gov sites, the civilian part 

of Government, but also with respect to working with the private 

sector. And, of course, part of that are some of the privacy issues 

that are implicated. So this is a keen interest of mine and a keen 

interest within the Department right now. 

Senator WHITEHOUSE. Yes, I look forward to working with you on 

it because I do think that time is relatively short, and before we 

get to a juncture at which we have to either stop expanding the 

plan or continuing its trajectory into the areas of real and genuine 

civil liberties concern, or come up with some alternative. But where 

we do not want to be is in a position where we get to that point 

and suddenly realize, oops, we have not thought this through, we 

really should not do that because of civil liberties concerns, but we 

have not developed Plan B that gets us around that obstacle. And 

I think that is where we are headed. 

Secretary NAPOLITANO. Fair enough. 

Senator WHITEHOUSE. Thanks very much, Mr. Chairman. 

Chairman LEAHY. Thank you. 

Madam Secretary, I am not going to ask you at this point just 

what a comprehensive immigration bill might look like. We are just 

beginning to look at it now. But I wonder if you might tell me what 

we should be looking at as two or three of the most pressing problems in immigration today. 

22 

Secretary NAPOLITANO. Thank you, Senator. It seems to me—and 

I have dealt with this immigration issue on the ground since I was 

U.S. Attorney in 1993, then as an Attorney General, then as a Governor in the State where illegal immigration was actually funneled. 

I mean, Operation Gatekeeper went into place in the San DiegoTijuana area. Operation Hold the Line went into place at the Federal level in the El Paso area. And illegal immigration by that was 

actually funneled into Arizona, and that caused a whole host of 

consequences. And so I have really been thinking deeply about this. 

It seems to me that we have to have the confidence of the American people that the immigration law is enforced, and that it is enforced intelligently and fairly. And we need to sustain those efforts. 

Chairman LEAHY. Do you think that confidence is there today? 

Secretary NAPOLITANO. It depends on who you ask and when. 

Chairman LEAHY. Okay. 

Secretary NAPOLITANO. But I think that we are making good 

strides there, and I think we can show quantitatively that progress, 

significant progress has been made. 

Second, I think we need to really look at what is the role of State 

and local law enforcement in that because that has evolved over 

the last 15 years. 

Third, I think we need to revisit all of the visa programs, the 

various visa programs that are out there, how they are enumerated, how they are adjusted, how we make sure that we are not 

costing Americans their jobs; but at the same time, having that 

input of immigrants into our country that has been such a part of 

our own history. 

And then, last, we are going to have to look at the issue of those 

who are in the country illegally and particularly those who have 

been here for quite a period of time. 

Chairman LEAHY. Well, let us talk a little bit about them, because you saw that certainly in your own State of Arizona, and we 

see it even in my little State of Vermont. But nationwide you have 

got millions of people who are—what is the expression?—‘‘living in 

the shadows,’’ or any other expression you want. They are in an 

undocumented status. 

I have always remembered something I saw once. I was driving 

in from the airport in Los Angeles, and there was a man walking 

down—he was in work clothes, appeared to be Hispanic, walking 

down the street. We were stopped at a stoplight so I could see this. 

Somebody walking the other way had a large dog on a leash. The 

dog suddenly lunged out, bit the man in the leg ripping his clothes. 

We could see blood spurting out. And the person with the dog just 

kind of looked at him and walked on, I think realizing this person 

was probably an undocumented alien and they are not going to be 

able to do a thing about this. They cannot complain. They cannot 

do anything about this dog biting him because they have no status 

here. 

Now, that is just one minor thing. The rights of the people, that 

you and I enjoy, can be trampled on in these people because of 

their undocumented status. Secretary Chertoff told us, and President Bush did, too, that it is not a practical solution to simply 

round up and deport these millions of people. You would agree with 

that, would you not? 

23 

Secretary NAPOLITANO. The ability of our country to do that and 

the sheer logistics of doing that are overwhelming. 

Chairman LEAHY. But all the more reason why I think we should 

try again on some kind of an immigration bill. I agreed with President Bush when he said he wanted a comprehensive bill. For a 

number of reasons, that fell by the wayside. This Committee will 

work with you on that issue. 

Then in Vermont and elsewhere—this may seem parochial, but 

I would like to talk about H–2A and dairy workers. Vermont does 

get H–2A workers, certainly apple pickers in our State have been 

the tradition. They come up for a few months. And that is fine. You 

pick apples at a certain time of the year. Dairy cows have to get 

milked year round, as you know. 

Secretary NAPOLITANO. That is right. 

Chairman LEAHY. And under current regulations, dairy farmers 

cannot obtain H–2A workers for their farms, so you end up employing undocumented workers. 

I would like you to look at the H–2A rules and see how they 

might be changed, whether they should be changed, to help dairy 

farmers who want people on a year-round basis, and also take a 

look at whether that can be done administratively even without a 

change in the law. Will you look at that? 

Secretary NAPOLITANO. Mr. Chairman, I would be happy to. You 

are exactly right. The H–2A is for temporary or seasonal workers, 

and because cows have to be milked every day, dairies do not qualify. 

On the other hand, it seems to me that we should be able to revisit this issue, and if we cannot do something in looking at this 

administratively, come back to you and say we cannot do it, Congress is going to have to act, this is what would fix the problem. 

Chairman LEAHY. Thank you. And one other thing, and this is 

totally parochial. On Interstate 91 in Vermont—and I have raised 

the same question with Secretary Chertoff and with others—the 

Customs and Border Protection has been operating a temporary 

immigration checkpoint on Interstate 91—not up by the border, but 

some distance from the border, closer to Massachusetts. I have consistently asked what is the reason for it. Agents were actually 

pulled off the border to be down there. It is a pain in the neck for 

Vermonters and others, and if I wanted to avoid it, there are about 

a dozen parallel roads that go down in New Hampshire and in 

Vermont, that go straight down to the border that do not go on the 

interstate. You have got something that is sort of semi-permanent. 

Everybody knows it is there. 

Can we at least look at this and give me some assurance that 

this, what I hope is a temporary aberration, does not become a permanent blight? I do not want to indicate by the nature of my question how I feel about it. 

[Laughter.] 

Secretary NAPOLITANO. Thank you for that very neutral question, 

Mr. Chairman. 

Without talking about the I–91 checkpoint, we had a similar 

issue with the I–19 checkpoint in southern Arizona. I can give you 

the theory of an interior checkpoint. It is several-fold. One is that 

you have to have a system in border areas and into the country 

24 

from border areas because you never catch everybody at the border. 

And in a way, what the interior checkpoint helps you figure out is 

how many people are actually getting through what you have so 

you can adjust what you have. 

Second, at least the interior checkpoints I have been involved in, 

they are typically not alone; in other words, you may have the interior checkpoint, but it is coupled with other things that are going 

on around those side roads, and because people know who are coming in illegally -the knowledge passes pretty quickly about where 

there is a checkpoint. But it makes it easier to identify who is intentionally trying to evade the authorities, and that is not an uncommon law enforcement purpose. 

But, third, I want you to know, Mr. Chairman, that I have said 

I want to see what the yield on these checkpoints is and is this 

really the best use of the manpower and the dollars that we have 

for effective border enforcement, not just in Vermont but elsewhere. 

And so we are doing that now. 

Chairman LEAHY. Okay. I appreciate that. When Secretary 

Chertoff was here—and I hate to pick on him in his absence, but 

he was saying, knowing that I would ask the question, he had a 

list: Well, we found X number of people doing this, X number of 

people doing that, and we were able to get them. And I said, Well, 

by that same theory, if you are coming in from Maryland or Virginia, you have to cross bridges into D.C. Hundreds of thousands 

of people come in every day. I am one of them. You could have 

checkpoints there. I guarantee you will find drugs. You will find 

people on which there are outstanding warrants. You will find 

some illegal immigrants. You will also bring the city of Washington, D.C., to a screeching halt, and you will have a traffic jam 

that will extend to Pennsylvania and West Virginia and North 

Carolina and everywhere else. 

So I think there has to be some idea of what do we actually accomplish. Is the pain worth what we get? Is the pain worth the 

gain? And that is, I think, the question that has to be asked. Or 

are we better off using some of those same people and some of that 

same allocation of money on the border itself and so that they can 

check on people? 

Now, we do not have a closed border between the United States 

and Canada. I can show you from Maine to Washington State, I 

can show you places where you could easily cross the border. There 

are huge areas, not just in Vermont, but North Dakota and everywhere else. We want to be realistic about what we do. You can 

imagine how you could stop traffic into Detroit, for example. 

These are areas where I think we have to be realistic. I am not 

going to ask any further questions. I see Senator Klobuchar is 

back. I will yield to her. And I have just been handed a note that 

Senator Sessions is coming back. And, of course, we will not end 

this until he has a chance to ask further questions. 

Please go ahead, Madam Secretary. 

Secretary NAPOLITANO. Thank you, Mr. Chair. And as I said, 

that is exactly the analysis that we are performing internally: 

What is the yield for some of these techniques that we have been 

using? 

25 

Senator KLOBUCHAR. Thank you very much. You thought you 

were done, but we are back. Thank you, Madam Secretary. I wanted to again thank you and the Acting Director for FEMA for the 

good job that you did with the flooding in Moorhead, Minnesota, 

and Fargo, North Dakota, and it was much appreciated by those 

residents that FEMA was so present and helpful and continues to 

be helpful. 

You and I have talked before about some of the issues with funding formulas and how you have these two communities, and we 

were just looking at these pictures. I think it is hard for anyone 

to tell which is which, but one is Moorhead and one is Fargo, and 

they are both flooded. And we have to make sure, I hope in this 

case, that the communities are treated the same for how the funding formula works and that in the future we look at areas that are 

across State lines and make sure that however the reimbursement, 

the cost-sharing formula works, that they are treated the same, because it just would seem outrageous to me that one side of a bridge 

the neighbors get a 75-percent reimbursement and the other side 

of a bridge they get 90 percent when one State has almost double 

the unemployment of the other. So I just wondered if you could address that. 

Secretary NAPOLITANO. Yes, Senator, and we are looking at many 

issues with FEMA reimbursement because there are some anomalies that happen. For example, you have communities on the opposite side of the same river that flooded the same way, and yet because the calculations are done based on State populations in part, 

you get different results. 

Part of that I have asked for what is driven by policy as opposed 

to actual rule that would have to be changed through the APA 

versus what is driven by the Stafford Act itself. We will work with 

you and your staff on this because it seems to me that when something is inherently illogical, we ought to be able to fix it. 

Senator KLOBUCHAR. Well, that is very practical, so thank you 

very much for that. 

The second thing I wanted to touch on, I know one of the other 

Senators mentioned the H1N1 virus, but being that I am from the 

third biggest hog-producing State in the country, just for you to 

clarify that this, in fact, you cannot catch it from eating bacon or 

any pork products would be helpful. 

Secretary NAPOLITANO. Senator, that is exactly right, and I have 

tried to have a ham and cheese sandwich every day last week to 

make that point. 

Senator KLOBUCHAR. That is very nice. Well, I am going to serve 

bacon at our Minnesota Morning where we invite all our constituents tomorrow morning just to make the point. So, of course, you 

are welcome to join us. 

Secretary NAPOLITANO. Thank you. 

Senator KLOBUCHAR. The second thing is just as it looks like we 

may be out of the woods—we are not certain—with this virus, but 

there is always—I keep hearing how when they look back at history that some of these viruses come back in the fall or at other 

times. Could you talk about the preparations being made in case 

that happens? 

26 

Secretary NAPOLITANO. Yes, Senator. With respect to the current 

outbreak, we are in what I call a state of ‘‘active caution,’’ but we 

have been able, for example, the CDC, based on the medical evidence it now has, to ratchet back school closure guidance, that sort 

of thing. 

However, we know that this very well could come back in the 

fall, and it could come back in a more virulent form. We will know 

better over the course of the summer because we may be able to 

find some things about what happens in the Southern Hemisphere 

during their flu season. So that will help inform decisions. 

But we are not standing down any of the planning efforts, and 

although I think what happened over the past week, 10 days 

worked well, we also saw areas that we need to make more robust 

where things can be improved, where planning needs to be more 

thorough. We are going to work at that over the summer. 

One concern I shared earlier with the Committee is that an 

awful lot of this is dependent on State and local capacity, public 

health officials, you know, those sorts of things, and with their 

budget situations, a lot of that capacity has been diminished right 

now. So plans that were written 2 or 3 years ago may not match 

what their actual resources are. I think we have to recognize that 

and adjust accordingly. 

Senator KLOBUCHAR. Very good. I also wanted to mention I did 

some work when I first came in, too much work, on problems with 

passports, and this was about 21⁄2 years ago. I am a brand-new 

Senator. We have all these idealistic young people in our State office, and literally, we had to have two people full-time helping people with their honeymoons, basically, because the previous administration had gotten so far behind on the passports so that people 

who had legally applied for their passports were not able to get 

them. I think we had—I just checked-–1,500 cases in a few months 

in 2007. I will report we saved 17 honeymoons and lost one. 

I know there have been improvements, but that continues to be 

a concern. And Minnesotans cross the border to Canada all the 

time, so a more specific question would be what is going on with 

the Western Hemisphere Travel Initiative. You know, we have people that go back and forth to take ballroom dancing, and it is a big 

concern on the border that that go as smoothly as possible. 

Secretary NAPOLITANO. Thank you, Senator. It is my intent that 

it go as smoothly as possible. We have been engaged in a pretty 

aggressive public relations campaign. We are working actually with 

Canada on that—television, radio. We have distributed 6 millionplus tear sheets at the border telling people that in June of this 

year, WHTI is actually going to happen. The State Department 

has—in the wake of what happened several years ago where they 

got that terrible backlog, they have staffed up to be able to process 

passports, and so we are really doing everything we can humanly 

think of to do to make sure that WHTI implementation goes as 

smoothly as possible. 

That being said, I think there is a culture change that is happening, and that is more difficult to predict, because people have 

been used to going back and forth along that border pretty easily 

as if really it were not a real border. And with WHTI, it really becomes a much more formal designation as a border. 

27 

And so we will try to ease that transition, but I think it is fair 

to say that that is a big change for that area of the country. 

Senator KLOBUCHAR. Exactly. Last, I got a little bit involved in 

the TSA watchlist issue because we have—I guess we have a lot 

of people named Johnson, I do not know, but a lot of people with 

common names in Minnesota. So we had people that were wrongly 

identified, put on the watchlist, and we were working with the previous administration last summer on this. And I know the Secure 

Flight Program is now being implemented, and I wondered if you 

could comment about what has happened with that, if you believe 

there is going to be some reduction in these misidentifications or 

what you think the best way to proceed with this is. 

Secretary NAPOLITANO. Yes, Senator, and I can think of nothing 

more frustrating than being put on a watchlist and not being able 

to get off, when there is no reason for you to be on the list to begin 

with except your name. 

So we have worked to make more efficient the process by which 

someone gets removed from a watchlist, but, yes, you are right, the 

implementation of Secure Flight will help us really mitigate that 

problem moving forward. I do not think we can totally eliminate it, 

but I think we can mitigate it. 

Senator KLOBUCHAR. And the idea is to move it off of the airlines 

more and to have it be with TSA? 

Secretary NAPOLITANO. That is correct. 

Senator KLOBUCHAR. Thank you. 

Chairman LEAHY. Thank you. 

On the WHTI, for those of that are northern border States, this 

is still a major question, and we will work with you to ease it. Certainly even in my State you have so many families where part of 

the family -I mean, they live a mile apart or 2 miles apart, but 

they are in different countries, and they are just used to going back 

and forth. It becomes very difficult when you tell an 85-year-old 

Grandpere or Grandmere they are going to have to get a passport 

to go and see their grandchildren. It is difficult. And the names, 

that is—I mean, you have seen all the horror stories, a 1-year-old 

child, the parents could not fly with him because the name is on 

a watchlist, and they bought the tickets, cannot fly, they have lost 

their tickets, they have got to go get a passport to prove this 1- 

year-old child is not a 45-year-old person on the watchlist. You 

know, at some point there has to be some flexibility for people just 

to be reasonable. 

I remember when Ted Kennedy, who was a member of this Committee, was stopped a dozen times—or 8 or 9 times, anyway, on a 

flight he had been taking forever to Boston because he was on a 

watchlist. President Bush actually called him and apologized, and 

he said, ‘‘Well, I appreciate that, but I do not want an apology. I 

just want to be able to get on the airplane.’’ These are things where 

there has got to be some ability to think it through. 

Anyway, Senator Feingold has not had his first round, so we will 

go to Senator Feingold, and then Senator Sessions. 

Senator FEINGOLD. Thank you, Mr. Chairman. 

Madam Secretary, welcome. You touched on this issue to some 

extent in your answer to Senator Klobuchar, but I would like to 

elaborate. The 2009 emergency supplemental bill drafted in the 

28 

House reportedly includes over $1.5 billion for HHS and CDC to 

combat pandemic flu, including money for vaccines, and $350 million to aid State and local public officials. 

The GAO has reported that a lack of State and local public 

health professionals is actually a significant obstacle to any response to a pandemic, and this may become more of an issue as 

the recession further constrains the various States’ budgets, as you 

well know. 

In your view, are we allocating the appropriate level of pandemic 

resources to the State and local level, especially when you consider 

that vaccines may not always be available in time and we need 

State and local assistance to track the spread of a virus, disperse 

vaccines, and treat those who are already infected? 

Secretary NAPOLITANO. Senator, I think the $1.5 billion that the 

President requested was a good figure to lean forward with. I do 

not know that any decisions have been made about how specifically 

that would be allocated, say, between HHS and State and locals. 

I think that process now we can begin to undertake in light of what 

we have learned with this initial outbreak. 

Senator FEINGOLD. Okay. Switching to another topic, in February 

of last year, the Washington Post reported that customs agents had 

been searching the cell phones and laptops of U.S. citizens and 

international business travelers coming across the border and then 

copying the contents. And I asked then-DHS Secretary Michael 

Chertoff about this issue when he appeared before this Committee 

a little over a year ago, and a few months later I held a separate 

hearing on this issue in the Constitution Subcommittee. 

DHS’ answers to my questions and its public statements on its 

practices and policies in this area were often confusing and even 

contradictory. In September, I then introduced a bill, the Travelers’ 

Privacy Protection Act, to require that border agents actually have 

a reasonable suspicion of wrongdoing before they search laptops 

and other electronic devices. 

Madam Secretary, the current policy has caused a great deal of 

consternation not only among members of certain minority groups 

who believe they are singled out for heightened screening when 

they return from trips overseas, but I actually get a lot of comments of great concern from business travelers in general. In fact, 

testimony at the hearing I held indicated that some companies feel 

compelled to give their employees who travel overseas a special 

laptop that has been wiped clean of any confidential information 

because they do not want Government agents looking at and potentially making copies of it when the business traveler returns. 

Do you agree with me that the current DHS policy raises legitimate privacy concerns? And what steps are you taking to review 

and revise the policy? 

Secretary NAPOLITANO. Yes, I think clarification is needed here. 

And we have put together a team within the Department of Homeland Security to issue pretty firm guidance and protocol for how 

you conduct a laptop search. 

That being said, I would say, Senator, that in the course of the 

very few laptop searches that actually have been done—and it has 

been a very small number that actually have been conducted—they 

29 

have found some fairly significant criminal activity on some 

laptops. 

But moving forward, we are a global society, people going from 

country to country all the time. They are crossing the border. They 

need to take their laptops to do business. We need to have a better 

policy that takes into account some of those IP concerns, some of 

the privacy concerns. That is what we are drafting now. 

Senator FEINGOLD. Well, Madam Secretary, I do not have any 

doubt that if you search laptops indiscriminately, you are going to 

find some good stuff. But that is not the way we do business in this 

country, and I know you understand that, but I have held off reintroducing my bill because I wanted to give the new Administration a chance to revisit this policy, but I cannot just wait forever. 

So I am wondering how soon I can expect your review to be completed and a revised policy to be put in place. 

Secretary NAPOLITANO. We are working on it right now, Senator. 

Senator FEINGOLD. And when do you think it will be done? 

Secretary NAPOLITANO. Senator, if I give you a timeframe and do 

not meet it, you will be unhappy with me. But let me suggest within the next 45 days. 

Senator FEINGOLD. All right. Well, I appreciate that and I understand it cannot be precise. I appreciate your willingness to say 

that. 

On a related and somewhat broader point, I wanted to bring to 

your attention two reports issued this past month by civil rights organizations. The Asian Law Caucus and the Stanford Law Immigrants Rights Clinic published a study entitled, ‘‘Returning Home: 

How U.S. Government Practices Undermine Civil Rights at Our 

Nation’s Doorstep.’’ And Muslim advocates released, ‘‘Unreasonable 

Intrusions Investigating the Politics, Faith, and Finances of Americans Returning Home.’’ 

The personal stories in these reports of American citizens being 

repeatedly detained and questioned for hours at a time, having 

their possessions taken from them, missing flights, and having to 

pay for stays in cities away from home are troubling. A progress 

report that DHS issued on April 29th indicated that you have sent 

the DHS Office of Civil Rights and Civil Liberties to meet with 

leaders of the Muslim, Arab, and Somali communities in seven 

major cities. I am sure the reports from those meetings will yield 

similar stories. 

Will you direct your staff to review these reports and get back 

to me with your response to the recommendations that these organizations have made for changes in DHS policies? 

Secretary NAPOLITANO. Yes. 

Senator FEINGOLD. I thank you, and I thank the Chair. 

Chairman LEAHY. I like these lengthy answers. 

[Laughter.] 

Chairman LEAHY. It makes life a lot easier up here. 

Senator Sessions. 

Senator SESSIONS. Thank you. Mr. Chairman, I think while I was 

out, you made reference to comprehensive immigration reform. The 

need to fix our immigration system is something I support. 

Let me just share with you my personal view. I think it is an 

accurate political analysis and reality. The American people, corVerDate Nov 24 2008 10:39 Jun 28, 2010 Jkt 056800 PO 00000 Frm 00033 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\56800.TXT SJUD1 PsN: CMORC
30 

rectly, are dubious of a plan that gives lawfulness now to people 

who came in illegally, without confidence that the legal system is 

going to work in the future and we are not going to be back in the 

same situation just a few years from now and, in fact, that amnesty or that status that we provide for those who entered unlawfully, it becomes a magnet or a message abroad. 

There has been some progress, even under President Bush’s administration, to see. I think the numbers show a decline in illegal 

immigration into the country. We are on the right track. So that 

is why I am encouraging you to say and do things that make this 

trend continue, because as a manager, a concept I learned during 

the surge-in-crime years of the 1960’s and 1970’s, when the crime 

starts going down and your agents are going up, then you have a 

certain leverage and ability you did not have when you had a low 

number of agents and a surging number. 

So the numbers are going down. This puts you in a position to 

execute some policies that will work, and I want to ask you about 

one of them. And I think when the American people realize that 

the broken pipe is being fixed and we are not just mopping up the 

water but we are fixing the leak, we can have a far better discussion about how to deal fairly and humanely with people who have 

been here a long time. 

Looking at Operation Streamline—and this relates back to my 

previous questions about whether it is a crime to enter the country, 

and I think you—I know you know that it is a misdemeanor on 

your first entry and a felony on the second. In five different border 

sectors, I think those in Arizona, all of them, maybe all of your sectors—— 

Secretary NAPOLITANO. It is both the Tucson and Yuma sectors, 

yes, sir. 

Senator SESSIONS. OK, both Tucson and Yuma. And Yuma preStreamline—and streamlining is where those who have been apprehended are not just taken back to the border and sent home that 

same day, that they are held for at least a few days and they are 

required to plead guilty to a misdemeanor, and then they go home. 

For several reasons, they have told me, this is working better than 

they imagined that it would. In Yuma, in 2006 there were 117,000 

apprehensions. That gives some picture of the scale of what we are 

doing. In 2008, that had dropped to 8,000, a 93-percent decrease. 

I am sure there have been barriers and other things, but the prosecutions, according to anecdotal evidence I have gotten, have told 

people that, well, the United States has changed their policy, it is 

no longer an open border, they are really serious about this. When 

you just take them back and say come try again next week, that 

is not a good message. 

So you have a responsibility to send the clarity of message not 

only to the United States but to the world who might be interested 

in coming illegally. 

At Laredo, the numbers in 2007 were 56,000 arrests after partial 

implementation of Operation Streamline. In 2008, the next year, 

they had dropped to 43,000, a 23-percent decrease. In Del Rio, preStreamline there were 68,000 arrests. When Streamline had been 

fully implemented, in 2008 a 70-percent decrease. 

31 

Are you familiar with this program? Have you been briefed on 

it? And are you committed to continuing it where it is in existence? 

And will you expand it? 

Secretary NAPOLITANO. Senator, I am very familiar with Streamline, and as you note, your first-time cross is a misdemeanor, and 

what Streamline does is the historical practice in these border districts has been not to use the judiciary, the Article III courts for 

the misdemeanors, and to handle these as departs, as civil matters. 

And so what Streamline did was change that decision and say we 

are at least going to pursue the misdemeanor there. 

At the same time that Streamline was happening, other things 

were happening. The fences were going in or other vehicle structures. More Border Patrol agents were being placed on the ground. 

The National Guard had been called up. That was my suggestion, 

but the National Guard was being placed in these sectors. 

Senator SESSIONS. Right. 

Secretary NAPOLITANO. So that all happened together, and then, 

of course, you had the economy change, and that had an effect on 

overall immigration numbers in Streamline and non-Streamline jurisdictions as well. 

However, I believe that these kinds of strategies that send an enforcement message are very useful, and they need to be sustained. 

And I want to get to the point implicit in your question, which is 

we need to keep these efforts up even as numbers are going down. 

We need to sustain them over time. And one area that is outside 

my lane but is in this Committee’s lane is the impact on the court 

systems in that part of the country when you adopt these strategies, because you are talking thousands of people, literally, that 

now get funneled into Article III courts in very sparsely populated 

border districts and marshal’s offices that have to help with transportation and detention and all the rest. 

We are trying to provide support at least on the marshal’s side, 

but the courts themselves are very stressed by this. 

Senator SESSIONS. But I would note that when you have a 70- 

percent decrease from the peak of the commencement of enforcement and those numbers continue to drop each year, the stress has 

been high on the courts and the prosecutors, but it is moving in 

the right direction. They actually have fewer cases, and I think 

they have been provided some additional resources to handle the 

challenge. 

Do you think—you sound like you do favor those programs. Will 

you consider expanding it? 

Secretary NAPOLITANO. Yes, I favor them, implemented in the 

right way and when they are producing results that you can measure. And we will be looking at other strategies in other places as 

well. 

Senator SESSIONS. Well, you could follow through on these programs and do some other initiatives and be able to preside over 

real improvement, I think, in the lawfulness of our immigration 

system. And I think that is your challenge. I think that is what the 

American people would like to see you do. 

Secretary NAPOLITANO. I think the President has asked me to 

make sure that we have strong and vigorous enforcement of our 

Nation’s immigration laws. 

32 

Senator SESSIONS. And we will be looking at those numbers, the 

best numbers we can get, and I think the American people will 

hold you accountable for progress. And I think we can have some. 

Secretary NAPOLITANO. Thank you, sir. 

Chairman LEAHY. Thank you, Senator Sessions. And, again, I 

welcome you here in your new role on the Judiciary Committee. 

Madam Secretary, you and I have known each other for years. 

You were your usual unflappable and highly qualified self here. I 

think that this has been a very difficult time in the United States, 

but a lot of the issues have come before you, and I think you have 

done not just yourself and the President but the country great credit with the way you have handled it. Your appearances on the various television shows, the various media, have been—I know in my 

State—reassuring to a lot of people across the political spectrum. 

And I think that is a very important role that you carry, and I 

think that it has been reassuring because they know behind what 

you are saying is an extraordinarily competent person. 

So I thank you very much, and we will stand in recess. 

Secretary NAPOLITANO. Thank you, Mr. Chairman. 

[Whereupon, at 11:55 a.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

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