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50–389 PDF 2010

S. Hrg. 111–573 

NOMINATION OF JOHN T. MORTON 

HEARING 

BEFORE THE

COMMITTEE ON 

HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

OF THE

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

NOMINATION OF JOHN T. MORTON TO BE ASSISTANT SECRETARY, U.S. 

DEPARTMENT OF HOMELAND SECURITY 

APRIL 22, 2009 

Available via http://www.gpoaccess.gov/congress/index.html 

Printed for the use of the 

Committee on Homeland Security and Governmental Affairs 

( 


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(II) 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

JOSEPH I. LIEBERMAN, Connecticut, Chairman 

CARL LEVIN, Michigan 

DANIEL K. AKAKA, Hawaii 

THOMAS R. CARPER, Delaware 

MARK L. PRYOR, Arkansas 

MARY L. LANDRIEU, Louisiana 

CLAIRE MCCASKILL, Missouri 

JON TESTER, Montana 

ROLAND W. BURRIS, Illinois 

MICHAEL F. BENNET, Colorado 

SUSAN M. COLLINS, Maine 

TOM COBURN, Oklahoma 

JOHN MCCAIN, Arizona 

GEORGE V. VOINOVICH, Ohio 

JOHN ENSIGN, Nevada 

LINDSEY GRAHAM, South Carolina 

MICHAEL L. ALEXANDER, Staff Director 

KRISTINE V. LAM, Professional Staff Member 

BRANDON L. MILHORN, Minority Staff Director and Chief Counsel 

JENNIFER L. TARR, Minority Counsel 

TRINA DRIESSNACK TYRER, Chief Clerk 

PATRICIA R. HOGAN, Publications Clerk and GPO Detailee 

LAURA W. KILBRIDE, Hearing Clerk 


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C O N T E N T S 

Opening statements: Page 

Senator Lieberman ........................................................................................... 1 

Senator Collins ................................................................................................. 3 

Senator Burris .................................................................................................. 10 

Senator Akaka .................................................................................................. 12 

Senator McCaskill ............................................................................................ 13 

Prepared statements: 

Senator Lieberman ........................................................................................... 21 

Senator Akaka .................................................................................................. 23 

Senator Collins ................................................................................................. 25 

WITNESS 

WEDNESDAY, APRIL 22, 2009 

John T. Morton to be Assistant Secretary, U.S. Department of Homeland 

Security: 

Testimony .......................................................................................................... 4 

Prepared statement .......................................................................................... 27 

Biographical and financial information .......................................................... 32 

Responses to pre-hearing questions ................................................................ 42 

Letter from the Office of Government Ethics ................................................. 69 

Responses to post-hearing questions for the Record ..................................... 70 

Letters of Support ............................................................................................. 82 


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NOMINATION OF JOHN T. MORTON 

WEDNESDAY, APRIL 22, 2009 

U.S. SENATE,

COMMITTEE ON HOMELAND SECURITY AND

GOVERNMENTAL AFFAIRS, 

Washington, DC. 

The Committee met, pursuant to other business, at 11:26 a.m., 

in room SD–342, Dirksen Senate Office Building, Hon. Joseph I. 

Lieberman, Chairman of the Committee, presiding. 

Present: Senators Lieberman, Akaka, McCaskill, Burris, and Collins. 

OPENING STATEMENT OF CHAIRMAN LIEBERMAN 

Chairman LIEBERMAN. The Committee is happy to reconvene 

now to consider the nomination of John Morton to be Assistant Secretary of Immigration and Customs Enforcement (ICE) at the Department of Homeland Security. Mr. Morton, we welcome you. We 

are very happy to have you before us today. 

I am very pleased, I will say personally, that you have been nominated to lead ICE, which has wide-ranging responsibilities and 

faces some difficult, immediate, and ongoing challenges. Your extensive work experience at the Department of Justice, I think, 

makes you uniquely qualified to lead the agency at this pivotal period in its history. You have prosecuted civil immigration violations 

at the old Immigration and Naturalization Service (INS) and later 

participated in immigration policy initiatives that addressed detention standards, which I am very interested in; the removal process; 

and improving coordination among the immigration components of 

the Department of Justice. Your work as a criminal prosecutor also 

impresses me and includes cases related quite relevantly to human 

smuggling, large immigration frauds, money laundering, and 

human rights violations. In recent years, you have managed components of the Department of Justice that prosecute these and other 

offenses related to our national security. 

Your nomination is supported enthusiastically by the Fraternal 

Order of Police, the Major Cities Chiefs Association, and the National Sheriffs Association, and the National Immigration Forum 

referred to you as ‘‘a seasoned Federal prosecutor who understands 

the importance of documenting the facts and ensuring government 

transparency.’’ 

The Immigration and Customs Enforcement agency is the Department of Homeland Security’s largest investigative agency. Its 

mandate is really vast, and the agency must direct its resources 


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1The prepared statement of Senator Lieberman appears in the Appendix on page 21. 

wisely by prioritizing the most serious threats to our public safety 

and then pursuing them. 

I will say that, for one, I support the Administration’s initiative 

to clamp down on smuggling-related crime and violence at the U.S.- 

Mexican border. 

During a Committee field hearing that we held in Phoenix, Arizona, on Monday, April 20, 2009, we heard from a number of State 

and local officials who again reminded us of the enormity of the 

challenge they face here in the United States from the Mexican 

drug cartels and human-smuggling networks as they both war 

against themselves and carry out their criminal conduct within the 

United States. 

ICE has a key role to play in taking down, to the best of our ability and yours, these nefarious organizations, and I promise you 

that I will do everything I can to ensure that you have the resources and legal authorities you need to investigate and disrupt 

these drug and human-smuggling organizations. 

I want to take this opportunity of your confirmation hearing to 

share with you a concern that I developed with a little more intensity based on the field hearing and, frankly, work that our staff did 

in Arizona in the days before the hearing; that is, there unfortunately seems to be a need for better coordination of the Federal 

Government activities in the border region. The plain fact is that 

there are unacceptable turf wars going on between ICE, the Drug 

Enforcement Administration (DEA), and the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). And those simply cannot be 

tolerated given what we have learned about the threat posed by 

these sophisticated and well-armed criminal networks that operate 

not just in the border region but in, as the Federal Bureau of Investigation (FBI) has told us, 230 metropolitan areas across America. 

So I want to urge you, presuming you come into this job, working 

with Secretary Janet Napolitano, of course, and working with Attorney General Eric Holder in this case, to make sure that the competition between the agencies of the Federal Government that we 

noted there be brought to a rapid halt. 

I am going to enter most of the rest of my statement in the interest of time in the record.1 I just want to say, as I mentioned to you 

when you were good enough to come to my office, that I have been 

frustrated over the last few years at the Department’s failure to 

improve what I consider to be inhuman detention policies and conditions. What I am about to say in the next sentence will probably 

numerically surprise anybody listening, but at any given time, the 

part of the Department of Homeland Security that you are going 

to head—Immigration and Customs Enforcement—is detaining approximately 30,000 people or more, most of them non-criminals, 

many of them asylum seekers, which is the group that I have been 

particularly concerned about, people coming here for asylum based 

on religious or political discrimination at home, and long-time residents. Many who have come here fleeing oppression or seeking a 

better life for their families are being incarcerated in county jails 

or other such facilities because we do not have adequate facilities, 


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1The prepared statement of Senator Collins appears in the Appendix on page 25. 

and I am particularly concerned that medical care for these people 

under our control and in our detention has been deplorable. In fact, 

too many people have died while in custody, it seems to me, at 

least in part, if not in whole, because the physical conditions they 

had went untreated. 

In this session, I am going to again introduce legislation, the Secure and Safe Asylum and Detention Act, to address these problems. I hope you will take a look at it and hopefully support it. The 

legislation promotes the extension and expansion of alternatives to 

detention programs. It encourages the release of detainees who represent no risk of flight or threat to public safety and requires improved conditions at detention facilities, including improved medical care. I will say that I am encouraged by some steps that Secretary Napolitano has taken thus far, including directing a review 

of our immigration detention and enforcement policies, and I appreciate the commitments that you made to me when we met and to 

the Committee to pursue such reforms. 

But, bottom line and generally, you are an extraordinarily wellprepared nominee for this position. I welcome you this morning and 

look forward to your testimony. 

Senator Collins. 

OPENING STATEMENT OF SENATOR COLLINS 

Senator COLLINS. Thank you, Mr. Chairman. 

Mr. Chairman, you have ably described what an important role 

this is, as well as the impressive background of Mr. Morton. I am 

going to submit my statement for the record,1 but I just want to 

focus on two issues that I want to explore with Mr. Morton this 

morning. 

It is essential if ICE is to accomplish its mission that it forge effective partnerships with State and local law enforcement, and I 

know that you saw that in the field hearing as well. You have also 

brought up the conflicts that often occur with other Federal agencies, including ATF with ICE, and those issues need to be resolved 

as well. It is vital that everyone is working together and that turf 

battles not impede the accomplishment of such an important mission. 

The second issue that I want to explore is the appointment of a 

border czar by Secretary Napolitano and how that is going to work 

with ICE. I must say this new Administration seems to have a 

tendency to appoint special assistants within the White House and 

czars for virtually every problem that comes along. And while I understand the need to shine a spotlight on these problems, when you 

do that, it sets up conflict, turf battles, and confusing lines of command and control. So I will want to question Mr. Morton today on 

how he would anticipate working with the new border czar. I think 

it would have been preferable had the Secretary waited until you 

were confirmed to see whether that position was really necessary. 

Thank you, Mr. Chairman. 

Chairman LIEBERMAN. Thank you, Senator Collins. Those are 

good points. 


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1The prepared statement of Mr. Morton appears in the Appendix on page 27. 

Let us proceed. Mr. Morton has filed responses to a biographical 

and financial questionnaire, answered prehearing questions submitted by the Committee, and had his financial statements reviewed by the Office of Government Ethics. Without objection, this 

information will be made part of the hearing record, with the exception of the financial data, which are on file and available for 

public inspection in the Committee offices. 

Mr. Morton, our Committee rules require that all witnesses at 

nomination hearings give their testimony under oath, so I would 

ask you to please stand and raise your right hand. Do you swear 

that the testimony you are about to give to the Committee will be 

the truth, the whole truth, and nothing but the truth, so help you, 

God? 

Mr. MORTON. I do indeed. 

Chairman LIEBERMAN. I thank you. You may now proceed with 

your statement, and I note the presence of what I take to be your 

family. We heard them briefly during the previous hearing in the 

back room. I will say that if anybody has doubts about your nomination, the presence of your family members will immediately 

erase the doubts. You have a beautiful family. Anyway, welcome 

and proceed with your statement now, as you will. 

TESTIMONY OF JOHN T. MORTON 1 TO BE ASSISTANT 

SECRETARY, U.S. DEPARTMENT OF HOMELAND SECURITY 

Mr. MORTON. Thank you Mr. Chairman, thank you, Senator Collins. Let me begin by stating how honored I feel to be here today. 

As a career Federal prosecutor, I consider it a great privilege to 

have been nominated by the President to be the Assistant Secretary for ICE. I thank the Secretary of Homeland Security for 

placing her confidence in me, and I thank the Committee for taking 

up my nomination. 

Let me also introduce to you and thank my two daughters, Olivia 

and the slightly more shy Lucie, who bears a vague resemblance 

to me, and their mother, Laura. I would also like to thank my parents, Brown and Margaret. Without their support, I would not be 

in this position today. 

Should I be confirmed, I look forward to working with the dedicated men and women of ICE to ensure our Nation’s security. I 

promise you that no one will be more committed than I to ensuring 

that ICE is an effective and valued member of the law enforcement 

community. 

I come before you today the product of a lifelong career in Federal law enforcement, one that has been marked by a particular 

emphasis in the areas we now associate with homeland security. 

I also come before you today the son of an immigrant. As a result, I like to think that I reflect two important and complementary 

American qualities: A rich immigration tradition and the rule of 

law. 

I have spent my entire professional career in Federal law enforcement, having served in various positions at the Immigration 

and Naturalization Service, main Justice, and the U.S. Attorney’s 


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Office. As a result, I have a unique blend of enforcement, policy, 

and management experience related to ICE’s mission. 

I have prosecuted criminal cases involving national security, immigration crimes, and customs offenses. I have worked on relevant 

policy issues, including immigration reform and the extension Federal jurisdiction over international crime. 

I have managed people and offices directly involved in the work 

of homeland security. I assisted then Attorney General Janet Reno 

and Deputy Attorney General Eric Holder with the management of 

the former INS, and I have supervised several offices in the Criminal Division of the Department of Justice directly involved in investigations and prosecutions within ICE’s purview. 

These experiences have led me here, seeking your confirmation 

to be the next leader of ICE. If confirmed, my priorities would include: Improving the investigation and prosecution of major customs and immigration crimes; securing our borders, both North 

and South; identifying and removing criminal aliens from our communities; reforming our immigration detention system; improving 

worksite enforcement with a greater focus on employers; and 

strengthening the work of the Federal Protective Service (FPS). If 

confirmed, I would also seek to improve morale and provide for 

greater accountability and transparency at the agency. 

In short, I want to give the agency a greater sense of identity 

and purpose, improve its management, and increase its coordination with and support of its Federal, State, and local law enforcement partners. 

Let me also say that, if confirmed, I would look forward to working with this Committee very closely. The issues and challenges 

facing ICE are considerable, and I want to continue the dialogue 

we have started in the confirmation process. 

In closing, allow me to reiterate what an honor and weighty responsibility I feel in coming before you today. If you do confirm me, 

know that I will pursue my duties on the merits, with great dedication, and with an eye to innovation and excellence. 

I thank you for your consideration. 

Chairman LIEBERMAN. Thank you for that excellent opening 

statement, Mr. Morton. I am going to start my questioning with 

the standard questions we ask all nominees. 

First, is there anything you are aware of in your background that 

might present a conflict of interest with the duties of the office to 

which you have been nominated? 

Mr. MORTON. No, sir. 

Chairman LIEBERMAN. Do you know of anything, personal or otherwise, that would in any way prevent you from fully and honorably discharging the responsibilities of the office to which you have 

been nominated? 

Mr. MORTON. I do not. 

Chairman LIEBERMAN. Do you agree without reservation to respond to any reasonable summons to appear and testify before any 

duly constituted committee of Congress if you are confirmed? 

Mr. MORTON. I do. 

Chairman LIEBERMAN. I appreciate those answers, and we are 

going to start now with the first round of questions limited to 7 

minutes. 


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Let me begin with the Southwest border problems that I talked 

about at the beginning, and obviously this is an enormous challenge. It represents a real threat in many ways to the United 

States. I was impressed, being there on Monday. We tend to react 

to this, those of us who do not live there, in larger policy terms, 

numbers. But we heard from some of the law enforcement personnel and the elected officials about the human suffering, the 

abuse suffered by people who are smuggled into the country illegally and then held and abused in various ways, the impact on law 

enforcement, not to mention, of course, the billions of dollars of 

drugs that are sold in the country. So let me focus on this. 

Despite the enormity of the challenge that the Federal Government is facing and our country is facing from these networks, we 

learned when we were there, but also from a Government Accountability Office (GAO) report that was issued coincidentally on Monday, that there is a real lack of coordination between ICE, ATF, 

and DEA—three agencies of our Federal Government that are 

charged with stopping the cartels’ various activities. 

The GAO report particularly noted that ICE was not participating in the main organized crime fusion center in our country, 

and Committee staff learned that ATF only participates in three of 

the eight Border Enforcement Security Task Forces (BESTs) run by 

ICE across the Southwest border and none in Arizona. 

So I want to ask you generally to speak to the Committee about 

the extent to which you are aware of this lack of coordination, 

which really is intolerable in the midst of the common enemy we 

have here and the Mexican people have in the drug cartels, and 

what specific actions you will take, if confirmed, to ensure that ICE 

is actively coordinating with at least, and most particularly, DEA 

and ATF, which, for the record, are both a part of the Justice Department. 

Mr. MORTON. Thank you, Senator Lieberman. Let me start by 

saying, as a Federal prosecutor, I am very familiar with the issues 

of turf wars and differences of views of responsibility and jurisdiction. I do not think they have a positive place in Federal law enforcement as a general matter, and I particularly do not think they 

have a place in the fight along the Southwest border, which is a 

central focus for us right now. It needs to have our full attention, 

not just as an agency but as a Department and a broader government. 

I am aware of the turf issues that you describe between DEA and 

ICE and between ICE and ATF. I am familiar with the issue at the 

fusion center. I am familiar with the issue when it comes to trafficking in firearms and the participation in the various BESTs 

along the border and the broader question of anti-narcotics enforcement. 

What I can say at this point is, first, I do not believe that these 

issues are insurmountable. Indeed, I intend to focus on them immediately. I have had some discussions with my colleagues at the Department of Justice, where I presently serve as the Acting Deputy 

Assistant Attorney General. And I know the new Acting Director 

of the ATF, Ken Melson. He is a long-time colleague, and I can assure you that I intend to, if confirmed, sit down with these leaders 

and try to resolve these issues promptly, in good faith, based on 


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our collective shared experience as prosecutors knowing that we 

have to come together on these issues. 

Chairman LIEBERMAN. Well, that is a very reassuring answer, 

both in terms of your recognition of the problem and your willingness to make it a priority item, if confirmed, and the fact that you 

know the people in the Justice Department who will be involved in 

this. No one gains from this lack of coordination except the drug 

cartels and the human-smuggling networks. So we are going to follow that on the Committee and look forward to hearing from you 

as you go on. 

Let me ask one more question. The folks at ICE, as you probably 

know, have repeatedly complained that the Immigration and Customs Enforcement operation is hindered in its investigations of 

smuggling organizations because it lacks some legal authority. Specifically, ICE lacks Title 21 authority to pursue drug-related investigations. In fact, ICE is operating under a Memorandum of Understanding (MOU) with the Drug Enforcement Administration that 

only grants this authority to 1,500 of your agents, which is, I believe, about a quarter of the workforce. 

Given the enormous challenge posed by the Mexican cartels, it 

seems to me the Federal Government needs to enhance the number 

of agencies and personnel working to defeat them, not to place arbitrary limits on the number of investigators who can work drug 

cases. Obviously, the cartels are fueled by the money they launder. 

Its stored value cards are increasingly being used by smugglers to 

circumvent reporting requirements at the border because they are 

not legally considered financial instruments. 

So let me ask you first, what legal authorities do you believe ICE 

needs to be given in order to better target smuggling organizations 

operating in the United States? And, specifically, do you think that 

your agents at ICE should be given Title 21 authority across the 

board? 

Mr. MORTON. I do, Senator. In my view, one of the principal responsibilities of the agency is to secure the border, and we are facing very sustained, organized threats to the United States in terms 

of trafficking of drugs, money, people, guns, and it does not make 

sense for ICE not to have clear authority to deal with all forms of 

illegal contraband, particularly in the context of border enforcement and enforcement at ports of entry. 

ICE, as you note, does exercise Title 21 authority in very limited 

circumstances now. This is one of the turf issues that I intend to 

address promptly, if confirmed, and the question is whether or not 

we can revise the MOU to make it more of a rational arrangement 

between the agencies to all come together and get this job done or 

whether legislation is needed. 

I do not have a firm opinion on this at this point, but I am aware 

of the issue and intend to address it. 

Chairman LIEBERMAN. Again, an encouraging response. Please 

keep in touch with that because I agree with you that there is just 

no sense, except for turf protection, for your agents not to have 

Title 21 authority. 

As I understand it, you are operating under a series of Memoranda of Understanding with both DEA but also Customs and Border Protection (CBP) and ATF that were pretty much all written 


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prior to the creation of the Department of Homeland Security, and 

in fact, some of them go back to the 1970s. So I urge you please 

to make that a priority as well and keep us posted. 

Thank you. My time is up. Senator Collins. 

Senator COLLINS. Thank you, Mr. Chairman. 

Mr. Morton, I mentioned in my opening comments my concern 

about this Administration’s proliferation of czars and special assistants rather than relying on the people who have the statutory authority and responsibility to carry out the functions. Secretary 

Napolitano recently appointed a border czar who is going to report 

directly to the Secretary and advise her on border security and 

cross-border smuggling. Obviously, this position is not Senate-confirmed, but does have a direct report to the Secretary. 

It seems to me that the roles and responsibility of that czar are 

going to conflict with your responsibilities as well as those of the 

Commissioner of Customs and Border Protection. 

Do you have any concerns about having another individual who 

is a direct report to the Secretary making it more complicated as 

far as your ability to carry out your legal responsibilities? 

Mr. MORTON. Senator, at this point I do not. My understanding 

of Mr. Bersin’s role is that, as you say, he is an adviser. His principal responsibility is one of facilitation and coordination among 

the many components within the Department that have some responsibilities along the border, but that it is not an operational 

one, that the Secretary fully intends and expects that whoever is 

confirmed as the Assistant Secretary for Immigration and Customs 

Enforcement is going to lead and direct that agency’s day-to-day 

operations. And if I am confirmed, I can tell you that is exactly 

what I plan to do. 

I know Mr. Bersin from my time at the Department of Justice. 

He has a lot of experience along the border. I look forward to getting his perspective and advice. But I do not anticipate any difficulties in pursuing my tasks and responsibilities under the statute. 

Senator COLLINS. I am glad to hear that. I would point out to you 

that I would hope that your role is not just as the operational manager, but I would hope that you are the primary adviser to the Secretary in this area. Do you see yourself as having an advisory role 

to the Secretary as well as strictly an operational role? 

Mr. MORTON. Absolutely. I consider myself to be the principal 

policy adviser to the Secretary on those matters within the jurisdiction of the agency. I would not have accepted the nomination if I 

felt otherwise. 

Senator COLLINS. Thank you. That is reassuring to hear, and I 

think you could understand from our perspective, we have oversight, we confirm you, but if another person is going to be developing policy recommendations and giving advice, that also creates 

confusion in terms of our ability to effectively exercise our oversight responsibility. 

Let me turn to a different issue. In 2006, the Portland Press Herald, a major newspaper in my State, did an investigation into the 

H–1B visa program and discovered that there were companies that 

set up shop in Maine, but really did not appear to have any legitimate business operations in Maine. And it appeared that they were 

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ceive a Department of Labor certification to pay them at a lower 

prevailing wage than would be the case in a more urban setting. 

And the evidence suggested that the individuals were never working in Maine; once they got the certification of the lower rate, the 

individuals were, in fact, working elsewhere, and these companies 

were really just shells that did not have operations in our State. 

I asked for an investigation into this area. Citizenship and Immigration Services (CIS) assessed that the amount of fraud in the H– 

1B visa program is almost 21 percent—clearly unacceptable, particularly in a time of high unemployment in our country. 

In addition, GAO found that ICE accepted only 26 percent of the 

immigration benefit fraud cases that were referred. Obviously, 

there is a joint responsibility where CIS flags the potential fraud, 

but then, as I understand it, it goes to ICE for further investigation 

and enforcement. 

First, are you aware of the problem of fraud in this program? 

This program, by the way, is very important to legitimate businesses, particularly those with seasonal labor needs that they are 

unable to meet through American workers. But that level of fraud 

is totally unacceptable. Are you aware of this problem? 

Mr. MORTON. I am, Senator. Indeed, I have spent many years 

prosecuting widespread fraud in the permanent labor certification 

program, which is a sister program to the H–1B. And I have prosecuted a number of cases where the fraudulent submissions were 

literally in the thousands. And I completely share your sentiment. 

Here we have very important programs to the interests of the 

United States where we are allowing people to come here to perform specific tasks with specialized skills, and it makes no sense 

for those programs to be marked by a high degree of fraud. One, 

that undermines confidence in those programs in the first place. It 

detracts from the people who are trying to play by the rules. And, 

very importantly, it means that a great deal of resources at CIS are 

being spent—and at the Department of Labor—on adjudicating 

claims that are fraudulent or false. 

I worked with the Department of Labor for several years to help 

them improve the integrity of their own program in the permanent 

labor certification program, and I look forward to working with 

them in the other areas. 

I also note that the office that you mentioned, Citizenship and 

Immigration Services, the Office of Fraud Detection and National 

Security, they do a number of analyses periodically of the various 

visa categories, and I think there needs to be an even closer working relationship between ICE and that office. In my view, one of 

ICE’s primary responsibilities is to ensure the integrity of the system—this is about keeping the system honest. The system brings 

lots of good people here for good reasons, but it needs to be marked 

by integrity, and my job is to work with the leaders at CIS to ensure that happens. 

Senator COLLINS. Thank you. That answer is very reassuring to 

me, that you will make it a priority. I also think it speaks to a real 

problem within the Department that one agency is flagging so 

much fraud, and yet the agency that has to carry out the enforcement is only accepting 26 percent of the cases. Now, there is far 

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partment of Labor’s processes as well. But then when it is flagged, 

to not have it pursued is a signal to these fraudulent companies to 

just keep going forward, and we cannot have that. One of the problems is we need higher monetary penalties so that there is a real 

price to be paid, literally. Thank you. Thank you, Mr. Chairman. 

Chairman LIEBERMAN. Thank you very much, Senator Collins. 

Good questions. Senator Burris, you are next. 

OPENING STATEMENT OF SENATOR BURRIS 

Senator BURRIS. Thank you, Mr. Chairman. I want to congratulate you, Mr. Morton, on your nomination. I understand that your 

record in the Justice Department is outstanding and impeccable, 

and it has been a good decision by the President to move such talent into such an important agency. So congratulations to you, and 

I am looking forward to your being successful at ICE. 

Let us turn, however, to a major concern in my State. In my 

State, there is a concern with 287(g). Are you familiar with that 

regulation? 

Mr. MORTON. I am indeed. 

Senator BURRIS. And are you familiar with what is happening in 

the area where you have these agreements with local law enforcement to help the so-called contraband and other illegal products 

that are coming into the various States and what has been taking 

place with local law enforcement there when there are minorities 

involved? There is now a great deal of racial profiling. And when 

I was Attorney General of my State, one thing that I really moved 

on in two key areas of my State was racial profiling by local police 

officers. For instance, in one community from East Saint Louis, if 

they went over into the Belleville community, they were just being 

stopped because they were black. And what I am hearing now in 

terms of what ICE is doing in some of our Hispanic communities, 

they are just stopping individuals on unrelated or just trumped-up 

charges and seeking to determine whether or not they are there legitimately or illegitimately, which is not a reason for stop and seizure or a reasonable belief by the law enforcement officers that a 

crime has been committed. They are just stopping them because of 

their outward appearance. 

Now, I understand that in your testimony you said you are going 

to certainly continue to support 287(g), but I am concerned about 

the agreement that goes with these local law enforcement officers, 

and what do you plan to do when you are in the position to stop 

the racial profiling? 

Mr. MORTON. Senator, a few things. I am not aware of the particular concerns in your State, but I am aware generally that there 

have been concerns about the implementation and execution of 

287(g), which is a statutory authority that Congress has provided 

for. 

Here is what I would say generally in terms of 287(g): As a Federal prosecutor, I am very supportive of Federal efforts to coordinate and support State and local law enforcement and work together to address the challenges in their communities, and I think 

that also applies in the context of the work that ICE does. 

That said—and this is where I think some of the specific attention needs to be placed with regard to 287(g)—that coordination 


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needs to be done with very careful oversight, training, and basic integrity. Particularly in the context of 287(g), you are talking about 

the delegation of some degree of Federal immigration enforcement 

authority, and we need to make sure that it is done under clear 

guidelines, with appropriate training, and when allegations of racial profiling or abuse are raised, there are mechanisms in place for 

a prompt and independent investigation of those claims; and if 

there are any problems, they are addressed directly and on the 

merits. 

Senator BURRIS. If you are confirmed, would you be willing to 

hold a moratorium until you are sure that all of the local law enforcement officers have been properly trained and understand what 

the authority is under 287(g), which is not to stop people just based 

on the color of their skin? I am wondering whether or not you 

would be able to move in that direction. 

Mr. MORTON. Senator, what I think I could say is, if I were confirmed, I can commit to you that I will review very carefully the 

program—287(g) operates in two distinct models, and one of them 

is a more sustained model in local, State, and county prison facilities where the Federal Government and the local authorities are 

coming together to identify and remove criminal—— 

Senator BURRIS. May I interrupt you there, Mr. Morton? 

Mr. MORTON. Yes, sir. 

Senator BURRIS. Because we see that, when they go into the 

criminal facilities, they are using that entry into criminal facilities 

also for ICE purposes. And so you have to look at that section of 

it very closely, as well as local law enforcement officers stopping 

people on the streets. 

Mr. MORTON. Senator, I intend to look at both. I am aware now 

that ICE is in the process of reviewing the memorandum of agreements that are issued to make sure that they are uniform, that 

they have the appropriate safeguards in place, and I very much 

want to join that process, if confirmed, and make sure that the 

agreements meet the needs of the Federal Government, meet the 

needs of the State and local governments involved, but at the same 

time do so in a way that civil rights and liberties are protected and 

that there are clear safeguards in place in case there are abuses. 

A number of these agreements are ongoing and reflect agreements in place, and I think we need to look at those as well and 

see if some of them either need to be modified or, if the case might 

be with particular abuses, restricted or terminated. 

Senator BURRIS. Well, I am hoping that when you are confirmed—and you certainly will have my vote—you will be looking 

at this very closely because, in my few days in the U.S. Senate, I 

have had more complaints about local law enforcement officers in 

the county jails and on the streets doing racial profiling. And I am 

hoping that you would certainly be on top of that so that we catch 

the bad guys, but we do not interfere under our democratic system 

with people just because of the color of their skin. Thank you very 

much. 

Thank you, Mr. Chairman. 

Chairman LIEBERMAN. Thank you, Senator Burris, for a very important line of questioning. 

Senator Akaka. 


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1The prepared statement of Senator Akaka appears in the Appendix on page 23. 

OPENING STATEMENT OF SENATOR AKAKA1

Senator AKAKA. Thank you very much, Mr. Chairman. Mr. Morton, I want to congratulate you on your nomination. 

Mr. MORTON. Thank you. 

Senator AKAKA. I want to also welcome your lovely family and 

friends here today. 

As we all know, Immigration and Customs Enforcement needs 

strong leadership at this time, and I believe you will be someone 

who can lead that agency. ICE, as we all know, has struggled with 

poor morale and creating a cohesive culture. Additionally, ICE has 

a wide range of responsibilities, making it especially important to 

manage the agency’s resources efficiently and to appropriately coordinate and prioritize its activities. ICE needs your help and your 

leadership with all of these issues. 

But I am pleased that improving immigration detention standards, refocusing worksite enforcement on employers, and reviewing 

Federal Protective Service operations are your priorities as well. 

And these are important and challenging issues, and I look forward 

to seeing the changes that you will bring forth. 

My concerns with ICE have been many, particularly regarding 

oversight of employees in the field. The standards set at headquarters must be communicated to employees in the field and effectively implemented. ICE has very few senior executives, I discovered, relative to the number of investigators and other employees 

in the field compared to other Federal law enforcement agencies. 

What are your plans for reviewing ICE’s management structures 

and ensuring that employees receive an appropriate amount of 

oversight and supervision? 

Mr. MORTON. Senator, you have hit on a very important point for 

me, which is when we describe what my priorities would be, if confirmed, there are a number of them that are specific to the enforcement activities of the agency. But there are a separate set of very 

important management priorities for me. 

I think the agency needs to spend more time and attention on 

the management of some of its major programs, some of which we 

have already touched on—detention—and I think that also extends 

to some of its basic work as a large employer: Recruiting and training, identifying and promoting the best and brightest, setting very 

clear expectations for the employees, the men and women of ICE, 

of what our priorities are, how we are going to go about them, how 

we expect the agency to carry out its duties, and then providing for 

a much greater degree of accountability and transparency at ICE. 

I think the agency in the past has not been able to describe its 

mission and successes as well as it should have to the broader public, to the Congress, to the many people who have a very vested interest in how it carries out its duties. And I would very much like 

to see the agency improve its ability to account for its actions, to 

explain them, and to be as transparent as possible. 

Senator AKAKA. As you suggested, Mr. Morton, hiring highly 

qualified people and providing them good training are two of the 

most important ingredients for promoting good performance. And 

this, I feel, has been lacking, and we really need to upgrade it. 


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1The letters of support appear in the Appendix on page 82. 

What will you do to improve recruitment and training for ICE 

employees? 

Mr. MORTON. One of the things I want to do, Senator, if confirmed, is to build on some work I believe my predecessor, Julie 

Myers, started and that was to take a look at the hiring, recruiting, 

and promotion practices across the agency. And I think the initial 

work started there identified that many different parts of the agency had their own programs and that there was not a uniform and 

unifying theme. And I want to take a very hard look at that to 

make sure that we are working together as an agency following the 

same basic sets of principles in recruiting and promoting people. 

I also want to reach out to a number of the stakeholder groups 

within the employee community within ICE to get their ideas on, 

are we going to the right places to ensure vigorous recruitment and 

hiring of the people that we need to make the agency a success, to 

ensure an appropriate level of diversity, to provide for the training 

and experiences and opportunities necessary for some of our best 

and brightest at the lower ranks to develop through the years and 

then become the senior managers that are going to lead the agency 

in the future when, I, if confirmed now, will not be there anymore. 

As a lifelong Federal employee, I feel a great duty and responsibility to the institutions for which I have worked, and if confirmed, 

I very much want to focus on improving the management at ICE, 

the people that are there, the opportunities that are there for them, 

so that when it comes time for me to move on and do something 

else, I can look at the Members of this Committee and others and 

say, I did a lot to try to improve the management of the agency 

and leave it in a better place than when I found it. 

Senator AKAKA. Well, I want to thank you for your plans. Let me 

just say that morale has been one of the problems, and I am glad 

to hear that you are thinking of trying to energize the workplace 

and improve morale by helping to reward your people, and I certainly look forward to your work there and your confirmation. 

Thank you very much, Mr. Chairman. 

Chairman LIEBERMAN. Thanks, Senator Akaka. 

Following up on Senator Akaka’s questions, I want to enter into 

the record—they arrived late so I did not get to mention them— 

two letters of support for your nomination: One from David Wright, 

President of American Federation of Government Employees 

(AFGE) Local 918, representing the Federal Protective Service nationwide; and the second from Patrick Remigio, President of AFGE 

National Council 118, operating out of Tucson.1

I would say that the staff told me, after some time on the border 

areas, that just talking to ICE rank-and-file employees, there is a 

high sense of hopefulness about your arrival. So that is good news. 

Senator McCaskill, thanks very much for being here, and we call 

on you now. 

OPENING STATEMENT OF SENATOR MCCASKILL 

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

Congratulations on your appointment. I am so pleased that you 

are a prosecutor, you have been in the courtroom, and you know 


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what makes a case and what does not make a case. I think it is 

an incredibly important credential for your job, which leads me to 

my theme, which I have been hammering for as long as I have 

been here, and that is, as a prosecutor, you know there are two 

kinds of crimes: The kind you can deter and the kind you cannot 

deter. 

Immigrants crossing the border to try to feed their families are 

coming for jobs. They are not coming for vacations. As long as the 

jobs are here, if it is a choice of whether or not they can feed their 

families or not, they are going to come. And, frankly, we can do the 

best job possible and we need to do a much better job on the border, but the most effective way to really make a change in illegal 

immigration in this country is, in fact, enforcing the law as it relates to that magnet job. And that is a crime we can deter. If business people believe there is a true risk associated with hiring illegal immigrants, you will see a bold change in hiring practices in 

this country. But under the last Administration, there was absolutely no fear that there was ever going to be any meaningful enforcement of the law against employers who were knowingly hiring 

illegal immigrants. 

As you are aware, I was shocked when your predecessor could 

not even tell me how many employers had been prosecuted for 

knowingly hiring illegal immigrants, and after a lot of back and 

forth, we finally now are beginning to get some statistics. The last 

year’s statistics we have, which is fiscal year 2008, there were a 

little over a thousand worksite enforcement actions taken with 

criminal consequences, and only 135 of those were employers. 

You and I both know that is an embarrassingly low number 

based on the amount of criminal activity that is occurring in this 

area. 

What is your commitment in this regard? And, most importantly, 

how are you going to organize it? Are you going to have a section 

of your office that is, in fact, prioritizing employers who are knowingly hiring? And you and I both can probably sit around a table 

and come up with some pretty good ideas on how we could catch 

these guys. It would not be hard. This, frankly, as undercover operations go, would be a walk in the park. All you would have to do 

is begin to develop intelligence about where there are employers 

who are hiring people without any regard to their documentation, 

and then send some people in without documentation, see if they 

get hired. And then, instead of having the cameras rolling for 

herding up all these people and trying to have a big splash that 

we are really doing something about illegal immigrants, you would 

have the kind of headline that would strike fear in the hearts of 

businessmen all over this country who are not playing by the rules. 

And, frankly, it is fair to those businessmen who are playing by the 

rules, and that is the vast majority who are trying to do it right. 

And I would love your take on this whole issue. 

Mr. MORTON. Senator, thank you. As you and I discussed when 

I first met you, this is an area that I intend to bring great focus 

to. When I first went to work as a trial attorney at the now abolished Immigration and Naturalization Service, one of my duties 

was worksite enforcement, and we routinely audited and brought 

civil fines against employers. And in 1996, there were, I think it 


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was, $25 million worth of fines. That went to zero in 2005 and 

2006, no fines whatsoever of employers. 

That is something that I want to take a very serious look at. 

That is an important enforcement power provided by Congress, and 

it strikes me as one that should be used. Criminal investigation 

and prosecution are obviously critical. We need to do more of that. 

I am concerned that there was an imbalance between the number of workers prosecuted and the number of employers prosecuted, 

and it strikes me that if we are going to make serious headway on 

reducing illegal immigration to this country, we have to have very 

serious worksite enforcement, and it has to focus on the employer 

and encourage people to play by the rules and punish those who 

do not. 

There is a lot of existing authority in the statute that allows that 

to be done, both in the criminal context and also in the civil context, and I very much would look forward, if confirmed, to working 

with the many Senators who I think care about this issue and 

want to see a different and more robust approach. And I can assure 

you that it is going to be a focus for me, and I look forward to talking to you more about it. 

Senator MCCASKILL. Is there a delineation in the office now in 

terms of investigation between investigations centered on employers versus investigations centered on the illegal immigrant? 

Mr. MORTON. I am not sure if there is a formal delineation. I 

have received some briefings on the past approach, but I am not 

aware of that delineation. I do think from the agency’s perspective 

they have undertaken a number of investigations. It is a question 

of whether they need to do more, and I think we do. But I am not 

aware of a formal delineation. There might be one; I am just not 

aware. 

Senator MCCASKILL. Well, I know this, that we have incredible 

investigative tools in our government, and it would not be complicated because, frankly, there are a lot of places where you could 

go and you could watch them take them off the worksite in a truck, 

stuff them all in an apartment, and be there on Friday when they 

pay them all in cash, and check and realize that none of those folks 

has even been put on the books. 

There is a huge underground economy here. It really would be 

like shooting fish in a barrel if there was any priority at all given 

to this. So I will be looking forward to seeing some of those fish 

float. And I am confident that you know how to do this. I am confident that you realize what the priority is, and with very little investment, we could have a huge impact. It is a great cost-saving 

tool in terms of investigative dollars because you are going to really 

shut down a lot of the illegal immigration if you can begin to make 

sure folks understand there are consequences when they knowingly 

hire people who are not supposed to be here. 

Thank you. Good luck to you, and I look forward to working with 

you. 

Mr. MORTON. Thank you. 

Chairman LIEBERMAN. Thanks, Senator McCaskill. You have 

hammered away at that, but in the public interest. I am not prepared to call you ‘‘The Hammer’’ yet because we have retired that 

title. 


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Senator MCCASKILL. We have. 

Chairman LIEBERMAN. There was somebody in the House who 

had that title. 

Senator COLLINS. Tom DeLay, right. [Laughter.] 

Chairman LIEBERMAN. We will leave a period of time, and then 

we will reinstitute it. Anyway, you have done great work on this, 

and we look forward, Mr. Morton, to you helping Senator McCaskill 

in this quest, which we share with her. 

I want to ask one question, and if any other Members of the 

Committee has another one, I will welcome them. I just want to 

ask you generally about the detention policies and to explain very 

briefly. I did not know about this until I read a report issued by 

the U.S. Commission on International Religious Freedom in 2005 

about our Nation’s treatment of asylum seekers, and it was deeply 

troubling because of really deplorable conditions that these folks 

are put under and the fact that they do not have the traditional 

access to immigration judges to appeal any of the conditions of 

their detention. 

And I suppose I was being personal about it because—you mentioned you are a child of immigrants—all four of my grandparents 

were immigrants. They came to America in that great wave of immigrants that came mostly from Europe at the early part of the 

20th Century. They came for economic opportunity and freedom, 

including, in their case, the kind of religious freedom that they did 

not have in the places from which they came. 

Of course, they came at a time when, generally speaking, all you 

had to do was arrive and not carry one or another terrible disease, 

and you were an American. At least you could come into the country. So I found it deplorable that people coming here asking for 

asylum based on political discrimination at home, religious discrimination, or other forms are subjected to this kind of detention 

while their cases are being determined. 

I understand that they probably, in the normal course of human 

events, do not have a justifiable claim to asylum here, but we are 

just treating them in a way that is not only inhumane but, based 

on the words on the base of the Statue of Liberty, un-American. 

So I wanted to ask you, generally speaking, what you hope to do 

about it in terms of the detention, beginning with exploring a system where we make some rational determinations about whether 

some of these folks are simply not a risk of flight or a threat to 

public safety. We ought to have an adjudicative process of some 

kind to determine that. 

Incidentally, apart from the embarrassment of the way we treat 

them, it costs an enormous amount of money to keep 30,000 people 

locked up every day—money we could spend in a lot better way. 

Then the second part of it is the medical facility. 

So I just wanted to get on record your reaction to the status quo 

with regard to detainees. 

Mr. MORTON. Senator, as you and I discussed when I first met 

you, this is an area of particular concern and focus for me. It is an 

enormous amount of taxpayer expenditure. 

Chairman LIEBERMAN. Right. 

Mr. MORTON. It is roughly 40 percent of the agency’s resources 

going into the detention and removal system. 


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Chairman LIEBERMAN. What is the dollar estimate, just generally? I will not hold you to it. 

Mr. MORTON. It is $1.5 billion. 

Chairman LIEBERMAN. Billion, it is astounding, just to house 

these people. 

Mr. MORTON. And the necessary employees. 

Chairman LIEBERMAN. Yes, right. 

Mr. MORTON. Let me be clear. The power of detention is a very 

important power to carrying out the duties of the agency and to securing the border. 

Chairman LIEBERMAN. I agree, right. 

Mr. MORTON. The agency does need to detain people who are a 

risk of flight and a danger to the community or where Congress 

has otherwise provided for by law. But I think we need to take a 

hard look and make sure that the people we are detaining are 

being detained for those reasons and they are being detained in 

conditions and facilities that are commensurate with their risk of 

flight or danger. 

Over the decades, we have developed a system that is largely dependent on using facilities designed for incarceration as opposed to 

civil detention, and particularly when you are talking about noncriminal respondents in the immigration system or people who 

have particular vulnerabilities, it does not jump out at you as that 

being the right answer. And so I want to take a hard look at that, 

and are there different conditions in which we can detain people, 

even if they are a risk of flight, or are there alternatives to detention that we can explore that assure their appearance and compliance without having to go through the expense to the taxpayer of 

detaining people. 

I think, as you alluded to, providing for uniform medical care 

that is consistent with our obligations as the detainer is really important. The system, again, has some unevenness. Some health 

care is provided for certain detainees by the Division of Immigration Health Services, but for others, different providers provide for 

it, and that needs a lot of attention. 

I think that, as I said earlier, this is not a question of whether 

or not the agency detains people, but it is a question of who does 

it detain, how does it detain them, and are there better ways to do 

this—and I think there are—that are a greater sense of innovation, 

more targeted to the populations that we are, in fact, responsible 

for. It is a very weighty exercise of government power, and it needs 

to be done carefully. 

Chairman LIEBERMAN. Well, thanks for that thoughtful and encouraging answer, and, of course, I agree with you that there are 

people who need to be detained. The question is, obviously, do they 

all need to be detained? People who are arrested for illegal immigration status probably have a higher risk generally of flight than 

somebody who comes in as an asylum seeker, but every case has 

to be determined on its merits. But you are right that regardless 

of why they are detained, there ought to be a uniform standard of 

medical care for these folks. I thank you for that. 

Senator Collins. 


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Senator COLLINS. Thank you, Mr. Chairman. I have a few more 

questions, but I am going to submit them for the record, and I do 

want to say that I intend to support the nominee. 

Chairman LIEBERMAN. Thanks very much. Thank you, Senator 

Collins. 

Senator Akaka, do you have another question? 

Senator AKAKA. Yes, Mr. Chairman. Let me ask one more. 

Mr. Morton, the Federal Protective Service relies very heavily on 

contract security guards to protect Federal buildings, and approximately 1,100 FPS employees oversee 15,000 contract security 

guards. How do you plan to ensure that contract security guards 

are overseen effectively? And do you plan to review this ratio of 

contractors to Federal employees at FPS? 

Mr. MORTON. I do, Senator. I think, as I mentioned in my remarks, the work of the FPS is one of the priorities that I need to 

attend to, if confirmed. The FPS has such important responsibilities that we just have to get it right. And I am aware of the statutory requirement to bring the number of full-time Federal employees up to 1,200, and I very much intend to see that is done. 

As you note, the agency is very dependent on contractors, and a 

large number of contractors, and I have a fair amount of experience 

in my present job with contractor oversight issues. And there are 

many instances in which contractors provide a very useful and important function to the government. But I want to take a very close 

look at the ratio at FPS. Do we have such a large number of contractors because it fits an appropriate set of goals that the agency 

is pursuing? Or is it more a question of resources? 

My sense is that it is very important when you are in the world 

of law enforcement to have strong oversight and direction from 

Federal employees. That is not to say that you cannot rely on contractors for some portion of the work, but that needs to be carefully 

thought through, and I am inclined, wherever possible, to see that 

direction and leadership is provided by Federal employees. 

I am very familiar with that particular issue with regard to FPS. 

I am also familiar with some of the funding issues—it is a feebased arrangement—and whether or not that is something that 

needs more attention. So what I can say to you at this point is I 

intend to focus on FPS. I think it is a very important part of what 

the Department does. And I think you will find that I will give it 

sustained attention, if confirmed. 

Senator AKAKA. Mr. Chairman, if you would permit just one 

more short question? 

Chairman LIEBERMAN. Go right ahead, Senator. 

Senator AKAKA. Yes. I understand, Mr. Morton, that ICE started 

collective bargaining negotiations with its union nearly 2 years ago, 

and there still is no agreement. Will you make finalizing those collective bargaining negotiations a priority? 

Mr. MORTON. Yes, in a word. I am aware that the negotiations 

are underway. I want to do the best I can to improve and strengthen the labor-management relationships at ICE. Obviously, right 

now I am not privy to what the particular issues are that are on 

the table for negotiations, but I intend to learn about them and see 

it through. 


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Senator AKAKA. Thank you so much for your responses. Thank 

you, Mr. Chairman. 

Chairman LIEBERMAN. Thank you, Senator Akaka. 

Mr. Morton, thanks for your testimony. You are really a superb 

nominee, and I will give you my full support. 

The record, without objection, is going to be kept open until 12 

noon tomorrow for the submission of any written questions or 

statements for the record. I hope you will do your best to answer 

them as rapidly as possible. And we are going to try our best to 

get you out of the Committee and confirmed hopefully by some 

time next week. So I thank you for your willingness to serve. I miss 

the fact that your wife made a rational decision and left the room 

with the children who were so pleasant to look at. [Laughter.] 

I thank you. We look forward to working with you. 

Mr. MORTON. Thank you. 

Chairman LIEBERMAN. The hearing is adjourned. 

[Whereupon, at 12:33 p.m., the Committee was adjourned.] 


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ph44585 on D330-44585-7600 with DISTILLER50389.055
76 


ph44585 on D330-44585-7600 with DISTILLER50389.056
77 


ph44585 on D330-44585-7600 with DISTILLER50389.057
78 


ph44585 on D330-44585-7600 with DISTILLER50389.058
79 


ph44585 on D330-44585-7600 with DISTILLER50389.059
80 


ph44585 on D330-44585-7600 with DISTILLER50389.060
81 


ph44585 on D330-44585-7600 with DISTILLER50389.061
82 


ph44585 on D330-44585-7600 with DISTILLER50389.062
83 


ph44585 on D330-44585-7600 with DISTILLER50389.063
84 


ph44585 on D330-44585-7600 with DISTILLER50389.064
85 


ph44585 on D330-44585-7600 with DISTILLER50389.065
86 


ph44585 on D330-44585-7600 with DISTILLER50389.066
87 


ph44585 on D330-44585-7600 with DISTILLER50389.067
88 


ph44585 on D330-44585-7600 with DISTILLER50389.068
89 


ph44585 on D330-44585-7600 with DISTILLER50389.069
90 


ph44585 on D330-44585-7600 with DISTILLER50389.070
91 

Æ 


ph44585 on D330-44585-7600 with DISTILLER50389.071