U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

45–063 PDF 2009

S. HRG. 110–674 

THE VISA WAIVER PROGRAM: MITIGATING RISKS 

TO ENSURE SAFETY OF ALL AMERICANS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON TERRORISM, 

TECHNOLOGY AND HOMELAND SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

SEPTEMBER 24, 2008 

Serial No. J–110–121 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

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 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

STEPHANIE A. MIDDLETON, Republican Staff Director 

NICHOLAS A. ROSSI, Republican Chief Counsel 

SUBCOMMITTEE ON TERRORISM, TECHNOLOGY AND HOMELAND SECURITY

DIANNE FEINSTEIN, California, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERB KOHL, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

JON KYL, Arizona 

ORRIN G. HATCH, Utah 

JEFF SESSIONS, Alabama 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

JENNIFER DUCK, Democratic Chief Counsel 

STEPHEN HIGGINS, Republican Chief Counsel 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Feinstein, Hon. Dianne, a U.S. Senator from the State of California ................. 1 

prepared statement .......................................................................................... 49 

Kyl, Hon. Jon, a U.S. Senator from the State of Arizona .................................... 3 

WITNESSES 

Baker, Stewart, Assistant Secretary, Office of Policy, Department of Homeland Security, Washington, D.C. ......................................................................... 7 

Ford, Jess T., Director, International Affairs and Trade, Government Accountability Office, Washington, D.C. ......................................................................... 5 

QUESTIONS AND ANSWERS 

Responses of Stewart Baker to questions submitted by Senators Kennedy 

and Hatch ............................................................................................................. 27 

Responses of Jess T. Ford to questions submitted by Senator Feinstein ........... 41 

SUBMISSIONS FOR THE RECORD 

Baker, Stewart, Assistant Secretary, Office of Policy, Department of Homeland Security, Washington, D.C., statement ...................................................... 43 

Ford, Jess T., Director, International Affairs and Trade, U.S. Government 

Accountability Office, Washington, D.C., statement and attachment ............. 51 

(1) 

THE VISA WAIVER PROGRAM: MITIGATING 

RISKS TO ENSURE SAFETY OF ALL AMERICANS 

WEDNESDAY, SEPTEMBER 24, 2008 

U.S. SENATE, 

SUBCOMMITTEE ON TERRORISM, TECHNOLOGY, 

AND HOMELAND SECURITY, 

COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The Subcommittee met, pursuant to notice, at 2:32 p.m., in room 

SH–216, Hart Senate Office Building, Hon. Dianne Feinstein, 

Chairman of the Subcommittee, presiding. 

Present: Senators Feinstein and Kyl. 

OPENING STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. 

SENATOR FROM THE STATE OF CALIFORNIA 

Chairman FEINSTEIN. I am going to call the hearing to order. 

This afternoon, we are here once again to look at what is being 

done or not done to ensure the safety of the Visa Waiver Program. 

I have long expressed my concern that the Visa Waiver Program 

is the soft underbelly of this Nation’s immigration system because 

it offers an opportunity for people to come into the United States 

to do us grievous injury without knowledge. Travelers from visa 

waiver countries not only bypass the interview and individualized 

security screening process, but as the GAO report confirms, they 

are also lost once they arrive in the United States. 

This problem is exasperated because DHS is only checking if and 

when individuals depart at our airports, so if you have 16 million 

people coming into the country in a given year and you only check 

those who leave, you never know how many came in and disappeared. 

I have held multiple hearings over several years, and time and 

time again, I repeat my frustrations, and yet there seems to be no 

improvement, no change in how the Department implements this 

program. Current law requires that before DHS admits any new 

countries into the Visa Waiver Program, it must: one, put in place 

a fully operational electronic travel authorization system for all 

travelers from visa waiver countries; and, two, verify the departure 

of 97 percent of foreign travelers leaving U.S. airports. 

Department of Homeland Security measures just 97 percent of 

who leaves, not who comes in. 

2 

DHS states that they will have these requirements met prior to 

admitting new countries into the program, but this is only true because of their limited interpretation of the statutory requirements. 

However, the GAO report found that the Department of Homeland Security has not done the groundwork to prepare the embassies, travel industry, and travelers to make electronic travel fully 

operational. 

The GAO report also reaffirmed that DHS is not taking into account countries’ overstay rates—that is when they come in, they 

say they are here for a limited period of time, and they overstay 

it—in the air exit system. DHS continues to maintain that certification of an air exit system is fulfilled by simply tracking 97 percent of individuals who exit through U.S. airports, not whether 97 

percent of individuals who entered at airports actually left. 

In the meantime, the GAO report shows that the administration 

is moving full steam ahead in working to bring in as many as 8 

to 10 new countries by the end of this year. And this chart shows 

you the 10 countries. You see only in one case has the State Department (1) officially nominated the country for entry into the 

Visa Waiver Program. (2) that country is Greece. And you see, (3) 

the Department of Homeland Security is moving forward with the 

other countries—Malta, Estonia, South Korea, Czech Republic, 

Hungary, Latvia, Slovakia, Lithuania—without this State Department nomination. 

I have a hard time understanding why DHS is moving so quickly 

to add new countries to the program without properly mitigating 

security risks. These risks are particularly apparent when we look 

at the statistics on the number of fraudulent and stolen passports 

and other international documents. And I have been through this 

before, but I want to provide an update. 

Between January 2002 and June 2004, 28 foreign governments, 

including visa waiver countries, reported 56,943 stolen blank foreign passports to the State Department. And just this summer, a 

security van in London was hijacked, resulting in the loss of 3,000 

blank British passports and visas that were destined for overseas 

embassies. 

DHS’s own Inspector General, Clark Ervin, has testified that 

‘‘the lost and stolen passport problem is the greatest security problem associated with the Visa Waiver Program. Our country is vulnerable because gaps in our treatment of lost and stolen passports 

remain.’’ 

Radicalism and homegrown terrorism in Europe is growing, and 

we know that al Qaeda is looking to exploit the Visa Waiver Program. But instead of acknowledging the threat this poses to the 

American people, the administration is working to admit new countries even with higher visa refusal rates. A visa refusal occurs 

when the consular officer believes that that individual is not going 

to return back to their country. So if you have a high visa refusal 

rate as a country, it means that a substantial proportion of the people simply are not going to come back. They are going to overstay 

their visa, which is a temporary visa, and remain in the United 

States. 

Secretary Chertoff himself has acknowledged the loophole that 

the Visa Waiver Program leaves open for those who wish to do us 

3 

harm. Just this year he stated that, ‘‘We have a Visa Waiver Program which allows most Europeans who come to be tourists to 

come without visas. This means that the first time we encounter 

them is when they arrive in the United States, and that creates a 

very small window of opportunity to check this out.’’ 

Now, I can tell you from an intelligence point of view that, reportedly, al Qaeda is looking for Europeans and Asians, not necessarily Middle Easterners, to send to this country on various missions. The Visa Waiver Program becomes a program to exploit, and 

it has been exploited. That is how Moussaoui got in the country. 

That is how others get in the country. 

I find it ironic that the Department of Homeland Security whose 

number one goal is to ‘‘protect the Nation from dangerous people’’ 

is instead expediting the expansion of a program that we know is 

exploited by dangerous people. 

The Visa Waiver Program leaves open both a major gap in our 

domestic security and a way to exploit our immigration laws. So I 

am very committed to do whatever I can about it. The Strengthening the Visa Waiver Program to Secure America Act is a bill that 

I am looking at introducing, and I look forward to working with my 

Ranking Member, hopefully, on this bill. 

I did want to point out specific comments that the GAO found. 

I want to really compliment the GAO witness for his work. As I 

said, he may be bloodied but he is unbowed, and I thank you for 

your very honest appraisal of this. And in our Q&A I hope we can 

go through some of your findings as well. 

[The prepared statement of Senator Feinstein appears as a submission for the record.] 

I would like now to recognize someone I have worked with—is it 

12 years or 14 years? I could not remember. 

Senator KYL. I think we are on number 13 or 14 now. 

Chairman FEINSTEIN. And either Senator Kyl has been the 

Chairman or I have been the Chairman. 

OPENING STATEMENT OF HON. JON KYL, A U.S. SENATOR 

FROM THE STATE OF ARIZONA 

Senator KYL. Thank you, Madam Chairman. But either way, I 

know we can both agree that it has been great to work with each 

other because we have exactly the same goals and frequently the 

same ideas about how to achieve those goals. And in this case, I 

think that is true. I have reviewed a draft of the legislation that 

Senator Feinstein has talked about and find it to be very good, and 

I do want to work with you on it. I think it is well worth introducing. 

I have also, by the way, spoken with at least one of our witnesses 

today and know that the administration shares the same goals. 

And while there may be some different ideas about how to achieve 

them, this is one of those cases where working together the two 

branches of Government I think can work effectively. 

I do want to thank you for calling this hearing in particular because we have the report to review as well as hearing about the 

progress that the administration is making on the ancillary issues 

related to the Visa Waiver Program. As we all know, it facilitates 

trade and travel for the U.S. and 27 of our allies. It allows millions 

4 

of people to visit the United States each year. But by allowing program participants to travel to the U.S. without first being interviewed by consular offices, the Visa Waiver Program can inadvertently make it easy for individuals who would do harm to our country to get here. And for that reason, since the beginning of the program, Congress has required that minimum standards be met before any new country is admitted to the program. 

In the 9/11 Commission Act, Congress awarded the DHS and its 

partner agencies the discretion to waive some of the minimum 

standards when admitting new countries to the program. In that 

legislation, to ensure that expansion of the program did not compromise the safety and the security of the American people, Congress also set benchmarks that have to be met before DHS can exercise its waiver authority. We will hopefully hear today on whether DHS has met the benchmarks, but it appears that DHS might 

potentially use its waiver authority to admit countries whose visa 

refusal rates fall between 3 and 30 percent, and perhaps even 

countries that have rates above 10 percent. We will want to explore 

that today. 

I am also hoping that at today’s hearing, the purpose of which 

is to review the GAO’s new report, the testimony will shed light on 

the continued problems as well as advances in the Visa Waiver 

Program and look constructively at how better to ensure its validity and security. 

Our office and Senator Feinstein’s office—and Senator Sessions’s 

office, I might add—have had a number of conversations with DHS 

about whether the agency is meeting the letter of the law as it pertains to either the exit or the Electronic System for Travel Authorization, or ESTA, requirements established in the visa waiver portion of the 9/11 Act. And I think we will get answers today about 

that. 

We also want to explore whether it is a good idea and whether 

the 9/11 law intended to allow DHS to admit countries through a 

waiver with visa refusal rates above 10 percent. Regarding the exit 

requirements, I believe that Congress intended that DHS record 

the departure of every alien participating in the Visa Waiver Program, not just those who are checking in for a flight to exit the 

U.S. But I recognize that we may not have achieved that goal in 

the exact wording that we passed. 

I also believe the Electronic System for Travel Authorization 

should be up and running in all countries that currently participate 

in the Visa Waiver Program before any waiver or expansion of the 

program is considered. 

I am hopeful that DHS can provide assurances it will meet the 

aforementioned benchmarks, and in the meantime, as I said, I look 

forward to working with Senator Feinstein on legislation that will 

help ensure that we continue to provide important trade and travel 

benefits at the same time that we do not weaken our national security enforcement capabilities. 

Again, Senator Feinstein, thank you for calling the hearing 

today. I know we both look forward to the testimony of the witnesses. 

Chairman FEINSTEIN. Thank you very much, Senator Kyl. And as 

you well know, I too appreciate working with you very much. 

5 

I will introduce the two witnesses. The first is Jess Ford, the Director of International Affairs and Trade. Mr. Ford joined the Government Accountability Office in 1973 and is currently Director of 

International Affairs and Trade. He has an extensive background 

in the area of national security and international affairs on issues 

related to trade, foreign assistance, and foreign policy. He has managed GAO audits of the Agency for International Development, the 

State Department, and the Department of Defense. In January 

1994, he was selected into GAO’s Senior Executive Service. Mr. 

Ford has received numerous awards throughout his tenure at GAO, 

including the Meritorious Service Award and the Distinguished 

Service Award. 

And I will introduce Mr. Baker at this time, if I might. He is the 

Assistant Secretary for Policy of the Policy Directorate in the Department of Homeland Security. His office is responsible for 

crafting and implementing policies, planning, and programs designed to strengthen homeland security. Prior to assuming this position, he served as General Counsel of the Commission on the Intelligence Capabilities of the United States Regarding Weapons of 

Mass Destruction from 2004 to 2005; General Counsel of the National Security Agency, the NSA; and Deputy General Counsel of 

the Department of Education. Mr. Baker has also worked extensively outside of Government service. Mr. Ford, since I asked you 

to perform this GAO report, would you begin by giving this Subcommittee an analysis of your findings, please? 

STATEMENT OF JESS T. FORD, DIRECTOR, INTERNATIONAL 

AFFAIRS AND TRADE, GOVERNMENT ACCOUNTABILITY OFFICE, WASHINGTON, D.C. 

Mr. FORD. I would be happy to. Chairman Feinstein, Senator 

Kyl, members of the Subcommittee, I am pleased to be here today 

to discuss our recent report on the Department of Homeland Security’s oversight of the Visa Waiver Program and executive branch 

plans to expand the program by the end of this calendar year, by 

the end of 2008. 

The Visa Waiver Program enables citizens of 27 participating 

countries to travel to the United States for tourism or business for 

90 days or less without first having to obtain a visa from a U.S. 

embassy or consulate overseas. The program has many benefits. 

However, the program also poses inherent security, law enforcement, and illegal immigration risks to the United States. 

Effective oversight of the Visa Waiver Program is essential to 

finding the right balance between facilitating legitimate travel and 

screening for potential terrorists, criminals, and others who may 

pose a law enforcement or illegal immigration risk to the United 

States. 

The executive branch aims to expand the Visa Waiver Program 

to countries in Central and Eastern Europe and to South Korea. 

Some of these countries are U.S. partners in the war in Iraq and 

have high expectations that they will be able to join the program 

due to their close economic, political, and military ties to the 

United States. 

In August of 2007, Congress passed the 9/11 Act, which allows 

DHS to consider admitting countries that otherwise meet the proVerDate Aug 31 2005 09:28 Jan 08, 2009 Jkt 045063 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\45063.TXT SJUD1 PsN: CMORC
6 

grams requirements but who have refusal rates between 3 and 10 

percent if the countries meet certain conditions, such as cooperating with the United States on counterterrorism initiatives. Previously, only countries with refusal rates below 3 percent in the 

prior fiscal year qualified to be considered for admission. 

Before DHS can exercise this new authority, the 9/11 Act requires the Department complete certain actions aimed to enhance 

the security of the program. The executive branch is moving aggressively to expand the Visa Waiver Program by the end of 2008. 

But in doing so, DHS has not followed a clearly transparent process. The Department did not follow its own November 2007 standing operating procedures which set forth key milestones that DHS 

and aspiring countries must meet before additional countries are 

admitted to the program. As a result, U.S. embassy officials, State 

and Justice officials, and several aspiring countries told us that it 

had been difficult for them to explain the expansion process to 

their foreign counterparts and manage their expectations about 

when these countries may be admitted under the Visa Waiver Program. 

State officials said it was difficult to explain to countries with fiscal year 2007 refusal rates below 10 percent, such as Croatia, 

Israel, and Taiwan, why DHS is not negotiating with them. DHS, 

however, is negotiating with several countries that have fiscal year 

2007 visa refusal rates above 10 percent, including Hungary, Latvia, Lithuania, and Slovakia, with the expectation that the fiscal 

year 2008 rates will fall below this ceiling. 

Nevertheless, DHS has achieved a number of security enhancements to the Visa Waiver Program during the expansion negotiations. DHS has secured commitments from several current and aspiring countries to improve the watchlist information that it is 

sharing with the United States. In addition, DHS has received 

commitments from aspiring countries to report on lost and stolen 

passports within strict time limits. And DHS has also implemented 

many of our prior recommendations from our 2006 report to 

strengthen the oversight of the program. 

However, DHS has not fully developed the tools to assess and 

mitigate the risks to the Visa Waiver Program. In particular, DHS 

has not yet met two key certification requirements in the 9/11 Act 

that would allow DHS to consider admitting new countries into the 

program with refusal rates between 3 and 10 percent. 

First, DHS must certify that it can verify the departure of not 

less than 97 percent of foreign nationals who exit the United States 

from U.S. airports. In February of 2008, we testified that DHS’s 

proposed plan to meet this provision will not demonstrate improvements in the air exit system because the plan does not account for 

data for those who remain in the country beyond their authorized 

stays. To date, DHS has not indicated to us how it intends to implement this provision or what options it is considering. 

DHS must also certify that the Electronic System for Travel Authorization, ESTA, for screening visa waiver travelers in advance 

of their travel is fully operational. DHS has not yet announced 

when it plans to make this certification. However, ESTA became 

available on a voluntary basis on August 1st of this year, and DHS 

7 

anticipates that ESTA authorizations will be required for all visa 

waiver travelers by January 12th of 2009. 

We identified several challenges in implementing ESTA, such as 

adequately informing the public and the travel industry, working 

with the airlines to help passengers comply with ESTA requirements, developing a user-friendly system, and working with the 

State Department to potentially mitigate risks of additional costs 

to the State Department with ESTA refusals. 

In addition, the 9/11 Act requires that the air exit system also 

incorporate biometric indicators, such as fingerprints, by July 1 of 

2009. DHS faces significant challenges in meeting this timeline due 

to several internal management challenges and resistance from airlines and the travel industry. 

Finally, DHS does not fully consider countries’ overstay rates 

when assessing illegal immigration risks in the Visa Waiver Program because the Department’s overstay data has a number of 

weaknesses. To improve the management of the Visa Waiver Program and better assess and mitigate risks associated with it, we 

have made recommendations in our report that DHS establish a 

clear process, in coordination with the State Department and Department of Justice, for program expansion that would include criteria to determine which countries will be considered for expansion 

and timelines with key milestones that clearly identify the process. 

In addition, we recommended that DHS designate an office with 

responsibility for developing overstay rate information in the Visa 

Waiver Program, explore cost-effective actions to further improve 

the data’s reliability, and use the validated data to help evaluate 

whether current or aspiring Visa Waiver Program countries pose a 

potential illegal immigration risk to the United States. 

The Department in their comments to us either agreed with our 

recommendations or stated that it is in the process of implementing many of them. That concludes my statement. I would be 

happy to answer any questions. 

[The prepared statement of Mr. Ford appears as a submission for 

the record.] 

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

Baker, your comments, and the degree to which you 3 could respond to Mr. Ford, it would be helpful. Thank you. 

STATEMENT OF STEWART BAKER, ASSISTANT SECRETARY, OFFICE OF POLICY, DEPARTMENT OF HOMELAND SECURITY, 

WASHINGTON, D.C. 

Mr. BAKER. Thank you, Senator Feinstein. It is really a pleasure 

to appear before you and Senator Kyl on this topic. 

Chairman FEINSTEIN. Thank you. I hope you leave feeling that 

way, too. 

[Laughter.] 

Mr. BAKER. Well, as I think you may remember, I had to move 

a cardiologist appointment to come here. 

Chairman FEINSTEIN. That is right. 

Mr. BAKER. He said, ‘‘This is not going to be exciting, is it? ’’ And 

I said, ‘‘Well, we will see.’’ I am looking forward to this because I 

think we do share the same goals, and I wanted to start by talking 

about the points on which we agree. And I start with some trepiVerDate Aug 31 2005 09:28 Jan 08, 2009 Jkt 045063 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\45063.TXT SJUD1 PsN: CMORC
8 

dation because I suspect that my quotes are going to end up on 

your easel the next time you have a hearing on this, because, in 

fact, we do agree that the Visa Waiver Program, as it was originally designed, had some very serious security holes in it. And it 

simply was not designed to deal with the threat of terrorism. 

I have put together a slide talk here on my right that talks about 

the progress in preventing terrorist travel that deals with the three 

security problems that we were concerned about. The first question 

that you have to answer about the Visa Waiver Program is: Do we 

know who is coming to the United States? And the answer is that 

we did not know who was coming to the United States when the 

program was first created. People would show up at the booth, and 

we had 30 seconds to interview them and decide whether to admit 

them. 

The second problem that the Visa Waiver Program had was 

whether we knew which risky travelers we should be looking for, 

and, again, we did not have very good measures of who was a risky 

traveler. We did not get good information about which citizens of 

a foreign country we should be concerned about. 

And, finally, the third question that we ask here is: If we have 

a system for identifying risky travelers, can people beat that system by, as you mentioned, getting a lost or a stolen passport or 

some other form of identity fraud? And, again, there was very little 

cooperation among countries, including visa waiver countries, giving us information about passports that had been stolen in those 

countries that we would need to watch for. 

What I think we disagree with is the notion that the program 

has not changed, that DHS has been administering the same program for the last 5 years. There have really been two sets of 

changes in the program, and both of them have made us more secure. You will see on that chart there is a pre-9/11 with a relatively 

small number of security measures; post-9/11 there were more. The 

ones I would like to draw your attention to are the ones that are 

circled in red because these are—it is on this side—oh, I am sorry. 

I thought you had a small copy as well. OK. 

On the first question, who is coming here, we now are going to 

be implementing for everyone in the Visa Waiver Program the 

ESTA that will tell us exactly who is coming to the country, and 

they will have to tell us in their own words and give us the information directly from their own knowledge and passports. So we 

will have advanced knowledge of the people who want to come to 

the United States. 

Second, identifying risky travelers, perhaps the most important 

strides that we have made in reforming the program using the 

tools that Congress gave us in 2007 is to negotiate with countries 

an expanded information-sharing process in which for the first time 

many of them are telling us about criminal convictions of their citizens. If we encounter them, we will be able to find out whether 

these are pedophiles or smugglers, something we never knew before. And they are also signing agreement to give us information 

about who within their borders may be terrorists. This is information, again, that we were never able to get prior to the tools that 

you gave us to negotiate new agreements. 

9 

And then, finally, on the question of lost and stolen passports 

and new identities, we have had two successful sets of expansions 

of our security tools: First, using VWP conditionality from 2005, we 

were able to get people to provide us with blank passports that had 

been stolen. In this latest round of negotiations, countries have 

agreed to give us all the passports that are stolen, including issued 

passports. 

All of this is going to substantially increase our security. None 

of it could have happened but for the legislation that passed in 

2007 because, as you will see, almost all of the measures that we 

are talking about that improve our security are things that could 

only happen with the cooperation, the voluntary cooperation of 

other countries. And by opening negotiations with countries that 

wanted to join Visa Waiver, we were able to offer them the prospect of Visa Waiver in exchange for the additional security measures that they were providing to us. And that is what has broken 

the dam and allowed us to get what I believe will be seven sets of 

agreements on sharing terrorism information, seven sets of agreements on sharing criminal data, seven sets of agreements on sharing lost and stolen passports. So that is the security measures that 

we have taken. 

Also, in the other chart that I hope you will have in front of you, 

I would like at some point to talk about the measures that we have 

for identifying who is leaving the country. We think that, in fact, 

we can identify and remove overstays, particularly dangerous 

overstays. We agree that having an exit system is crucial to that 

effort and that we can improve the exit system is the most costeffective way. I hope we will be able to discuss that in more detail 

later on. 

In summary, we share the same security goals. We would like to 

work with you on your proposed legislation to try to find a way to 

improve visa waiver and visa waiver legislation in yet another 

round of legislation, if necessary. 

Thank you. 

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

for the record.] 

Chairman FEINSTEIN. Thank you very much, and, of course, we 

will work with you. That goes without saying, and I recognize that. 

Just for a moment, Mr. Baker, consider this chart. The bottom 

line is the 3 percent. You know, you say, well, DHS has other security arrangements with these countries, but the fact of the matter 

is the law requires certain things of you which you are ignoring. 

And you have, Estonia, South Korea, you know, maybe one quarter 

of theses countries at about a 4 percent Visa refusal rate; the 

Czech Republic, maybe 6 percent; and then it goes up. And it is as 

if it does not matter what the law says. You are going to do it anyway because you are going to do it on a political basis. 

Here is my concern. If, in fact, it is true that al Qaeda is looking 

for people who indeed are European, who indeed have easy access, 

who can pick up a fraud-proof blank passport on the black market, 

and 24 hours later could be in the United States for 90 days as a 

visitor, they have got it made in terms of coming into this country. 

And I do not understand why you do it with these countries, and 

yet you have Israel, Taiwan, and Croatia that meet the strictures, 

10 

and you do not negotiate with them. So I have got to believe that 

something is rotten in Denmark. 

Mr. BAKER. Would you like me to answer? 

Chairman FEINSTEIN. Yes. 

Mr. BAKER. I am glad to answer that. 

Senator KYL. Dubrovnik. 

Chairman FEINSTEIN. Dubrovnik. 

[Laughter.] 

Mr. BAKER. Yes, exactly. I think you have asked two questions. 

One, are you going to let people in willy nilly even though they 

have not met the legal requirements? And— 

Chairman FEINSTEIN. Why don’t you follow the legal requirements? 

Mr. BAKER. Let me start with that. We will follow the legal requirements. We will not admit anyone to this program who does 

not meet the 10-percent rejection rate requirement that is part of 

the statute. I can give you the assurance that I have made that 

clear to all of the candidate countries, especially the ones who are 

at the edge of 10 percent. We will not be admitting people to the 

Visa Waiver Program if their rejections are higher than 10 percent. 

We have been negotiating with these countries because, in fact, 

their rejection rates have been declining at a remarkable rate. 

Some of these countries were at 20 and 25 percent 2 years ago, and 

they have declined dramatically in recent years. 

The calculation of this fiscal year’s rejection rate will not happen 

until the fiscal year ends on October 1. However, given the trends 

over the past years in which there have been multiple-digit declines in the rejection rate, we predict—we believe that all four of 

the countries that are currently just over 10 percent will be well 

below it. That is why we are negotiating with people. We are not 

making them a promise. We are just negotiating. 

Chairman FEINSTEIN. Then the law provides—and correct me if 

I am wrong, because I could be—that you need to certify first the 

electronic travel is fully operational. 

Mr. BAKER. Yes. 

Chairman FEINSTEIN. Which you are not able to do, and that the 

97-percent exit system is in place without a phony formula of getting there, which you do not agree to do. 

Mr. BAKER. We believe that ESTA will be fully operational within 6 weeks. That is to say, it is operational now. We have 125,000 

people who have filled out ESTA and come to the United States 

after having filled out and obtained approval to travel to the 

United States. And we are having 15,000 to 17,000 people every 

week go through that system. It is running well. 

There are some improvements that we need to make to make 

sure that it can handle the load, but it is operational now, and we 

believe it will be fully operational very soon. 

The 97 percent, we do have, I think, a disagreement over what 

the law allows— 

Chairman FEINSTEIN. Would you stop on that one point? 

Mr. BAKER. Yes. 

Chairman FEINSTEIN. Mr. Ford, do you believe that the electronic 

travel system is fully operational now in your study? 

11 

Mr. FORD. Well, they turned it on on August 1st. We do not know 

much about how it is working. It has not been certified yet. The 

DHS has not yet certified that it is fully operational, but they did 

turn it on on August 1st. And, again, we do not have enough information on how it is working. 

Chairman FEINSTEIN. OK, so the jury is out on that. 

Mr. FORD. Yes. 

Chairman FEINSTEIN. Mr. Baker, I did not mean to interrupt 

you, but I did. Please go ahead. 

Mr. BAKER. As I said, we believe that ESTA will be fully operational, that things are going well with the system, the testing of 

the system. We have some improvements that we need to make, 

but we will make them, and we believe they will allow us to declare this system fully operational within roughly 6 weeks. 

On the 97 percent, we have been around on that several times. 

We believe and our lawyers believe that the 97 percent requirement requires that we be able to verify the departures of 97 percent of the people who leave by air. 

Chairman FEINSTEIN. Regardless of how many people come in. I 

mean, you are not measuring them coming into the country. So 

how do you know 97 percent are leaving? 

Mr. BAKER. I understand. This is not a measure of how many 

people have overstayed. The 97-percent calculation, as we have estimated it, is designed to say how good is your exit measuring system. How good a job are you doing to make sure that the airlines 

are recording everybody who leaves and gathering information on 

those people? That is a valuable part of an exit system. It is not 

the whole thing. 

Chairman FEINSTEIN. I want to give Senator Kyl the opportunity, 

but let me say this: You go to China, you fill out a slip on the 

plane, what you are going for, where you are going to be staying, 

how long you are going to be there. When you leave, you fill out 

another slip that marks your departure—and you attach to it the 

slip you filled out when you came in. A simple system. They know 

you have come, they know you have gone. 

I do not understand why you do not want to do this, because we 

are not interested, at least I am not interested, in promoting a program that allows people to come in and remain in the country illegally. 

Mr. BAKER. If I could, this is the other chart, and I will not 

spend time on the entire chart, but there is a column here for I– 

94s. That is, in essence, the system that you described with the 

Chinese; that is to say, when people come in today, they fill out a 

form, an I–94 form, and they go through customs. In the course of 

that, the stub is torn off of the I–94, and they carry it with them 

until they leave, and they hand it in as they depart. 

That system is a way of determining who has left and who has 

not, and we do use it for that purpose. 

Chairman FEINSTEIN. So what conclusions have you come to? 

How many people overstayed this past year? 

Mr. BAKER. We cannot give you that information based on the I– 

94 system because the I–94 system does not result in every arrival 

being matched with every departure. People lose the paperwork. 

They fail to turn it in. They cross the land border. Lots of things 

12 

go wrong with the paperwork system. I am sure that happens to 

the Chinese, too. It is not a perfect system. It is the beginning of 

an exit system, and I think a good beginning. It is not a complete 

exit system from our point of view. 

Chairman FEINSTEIN. So, in other words, you do not know. You 

do not know how many people misuse the visa waiver system. See, 

I believe in my heart of hearts that you do not want to know. That 

is my problem with it. We know that 40 percent of illegal immigrants are visa overstayers. And this is a likely program for them 

to use. 

And I do not understand why Homeland Security does not want 

to tighten that up. You want to know how many people are coming 

in. You know 13 million come in on this program. 

Mr. BAKER. Actually, it is even more than that. It is close to 16 

million. And I would draw your attention back to the chart that we 

put together, because that is a description of the exit system that 

we have and the exit improvements that have been proposed. And 

I think you will see that we really have made substantial improvements because we do want to know with as much accuracy as possible who has overstayed, and an exit measurement system is part 

of that process. 

So if you look, along the top you will see the ways in which we 

keep track of people who come and go. The I–94 system that I described earlier with the stubs is the first one, and we have improved that system by taking what was a paper system and making it a computerized system so that we can keep track of people 

in a computerized fashion. We actually key in that information. Obviously, with ESTA that will be much easier. 

The second and probably the most important part of our program 

for keeping track of people is the airline manifest program in which 

airlines tell us everyone that they bring to this country, everyone 

they take away from this country who is not a U.S. citizen. They 

do that by taking the information off the passport. It ought to be 

good information, and it ought to match up. 

Now, this depends on having the airlines do a very good job of 

gathering that information from every passenger. We have substantially, just in the last year, improved their performance in 

gathering that information by auditing them, by raising the possibility of fining them for errors. We did a spot-check audit in the 

last several months to see how good a job they were doing of recording the data on people who were leaving, and they are up in 

the 98-, 99-percent range. 

In addition, the biometric system, the air biometric system that 

we have proposed would add another few percentage points to the 

accuracy of the matches that we perform. 

And then, finally—and I think this is important because the last 

step in all of this process is tracking down the overstays. The whole 

point of this is to make sure that our investigators do not waste 

their time looking for somebody who has already left or who is otherwise misrecorded by the system. And so we have begun to put 

more effort and more resources into the process of tracking the 

high-priority overstays that we have identified in this fashion. 

Chairman FEINSTEIN. I am going to turn it over to Senator Kyl, 

but let me say one thing. In my view, it is a worthless system, and 

13 

here is why: You do not know how many people you start out with, 

and the Department, through all our hearings, has refused to collate it with entry. And if you do not collate it with the entry system, to me it is worthless. 

Mr. BAKER. Senator, I share your concern about this. We are 

very worried about errors in this system, and there will be errors 

that will distort the calculations. But I have asked our people to 

go back and make exactly the calculation you are talking about. 

Take the arrivals, take the date when they are supposed to leave, 

and say, OK, how many people who were supposed to leave in that 

period, say 6 months, actually left by our records, and try to correct 

the errors to the extent we can. We are in the process of doing that. 

Chairman FEINSTEIN. It is 90 days, right? It is not 180 days. It 

is— 

Mr. BAKER. I picked a 180-day period. Yes, if they are in the Visa 

Waiver Program, they need to leave within 90 days. If they have 

a visa, they may have a different departure date. We are trying to 

do not just Visa Waiver Program but all persons who come to the 

U.S. who have— 

Chairman FEINSTEIN. Then, again, you mix it up. But what we 

are trying to evaluate is the Visa Waiver Program, whether the 

country is protected against security hits or illegal entries through 

the Visa Waiver Program. 

Mr. BAKER. Let me see if we can break out just the Visa Waiver 

Program. I suspect that the visa waiver countries are actually 

going to have fewer overstays than the visa countries. And we may 

be able to break that out for you. 

Chairman FEINSTEIN. That would be very helpful. 

Senator Kyl? 

Senator KYL. Thanks. Some of my questions will just follow on 

what Senator Feinstein was asking. 

Let me, first of all, make two points about your testimony, Secretary Baker. First of all, you said that there is a tension between 

getting valuable security information from countries and our willingness to grant visa waiver; that the more liberal we are in granting countries visa waiver authority who want it, the more they are 

willing to cooperate with us in getting a variety of helpful security 

information, which you detailed on this one chart. 

Obviously, there is a tension there because there is the potential 

for both terrorism and illegal immigration if there are errors or 

overstays in the Visa Waiver Program itself. So you have to weigh 

the value there. We understand that tension, but we do need to 

make sure that we are at least complying with the law as to the 

former. 

Secondly, I have looked at your legal analysis of this 97-percent 

requirement, and I agree with the totally contradictory opinions of 

both Senator Feinstein and you, meaning I think technically from 

a legal interpretation point of view, you are exactly right. I think 

we drafted it incorrectly, because I think I know what our intention 

was, and it is really right now kind of a moot argument, although 

I do understand why you feel it is valuable to generate the data 

on the effectiveness of the identification program, the 97-percent 

aspect of that. 

14 

But the real question, the big elephant in the room is the visa 

overstayers, and we all acknowledge that. So that kind of gets us 

to the next question. 

Now, as I understand, Mr. Ford, your testimony is that DHS has 

not developed the tools to enforce a requirement to determine visa 

overstayers—I am trying to simplify what you said—and that they 

must develop clear criteria and timelines to be able to establish the 

overstayer data and to evaluate the extent of the problem of illegal 

immigration as both a result of the Visa Waiver Program and all 

of the other ways in which people enter the country as well, both 

of those things that Secretary Baker just referred to. 

First of all, am I correct in that? 

Mr. FORD. Yes, you are. That is correct. 

Senator KYL. OK. And now let me ask you just a technical question. On the chart, we talked a little bit about the countries that 

will only be admitted once they qualify, once they are below that 

10 percent. But, Secretary Baker, what about the ability to determine if they have lapsed into noncompliance at a future date? 

What can you tell us about that? And, Mr. Ford, did your GAO report deal with that in any way as well? 

Mr. BAKER. We obviously will not be able to use visa rejection 

rates to evaluate visa waiver participants because visas are not 

granted in a Visa Waiver Program. So we will have to develop 

other tools for determining whether countries have met the requirements and continue to meet the requirements. 

I would put considerable emphasis on whether they are, in fact, 

cooperating on all of the security and immigration-focused parts of 

the program. That has got to be a big part of this. And then we 

do have to look at the question of how are they doing relative to 

the other Visa Waiver Program participants in terms of overstays. 

My biggest concern with looking at overstays is that when you 

get down to something that says we have accounted for 95 or 97 

percent of all the people who came in, we have matched them with 

all the people who left, if you had even missed 2 percent in your 

effort to match people up, you are going to have an impression that 

it is a 3-percent overstay rate when really you have got a 2-percent 

error rate and a 1-percent overstay. So that is my biggest concern 

in that area. 

Senator KYL. Let me just interrupt there. We know that right 

now we do not have an effective visa overstayer identification program. We understand that. What we are going to try to do is to 

push the DHS and State and anybody else that is working in this 

area to get that to be as effective as possible for a whole lot of different reasons. This is one of them. 

To the extent that you identify a potential error rate, we can always discount the data to that extent. But would you not agree 

that it is important for us not only to be able to make the initial 

determination for granting the authority to work under the program, but also to ensure compliance every year that the countries 

are, in fact, doing that? 

Mr. BAKER. I do agree that it is a completely relevant consideration for continued participation in the Visa Waiver Program. In 

the end, we did suspend the participation of Argentina and Uruguay in the Visa Waiver Program precisely because we saw too 

15 

much illegal immigration from those countries after their economic 

crises. It would be better to be able to do that on a more objective 

basis. 

Senator KYL. And, Mr. Ford, if you want to respond to any of 

that last question, you certainly may, too. 

Mr. FORD. Yes. Well, I think that was one of the key points in 

our report, that we felt DHS is not at a point at this stage to provide the quality of data that is necessary to make those judgments. 

And we believe that they need to strengthen their whole data-gathering apparatus, and we made a recommendation in our report that 

they do so, because we think that it is a foundation not only for 

judging aspiring countries and current members, but it is also a vehicle for law enforcement. 

DHS is currently using what data they do have with whatever 

limitations they have for law enforcement purposes. They turn over 

information to ICE, who uses it to investigate cases of individuals 

who have overstayed their visas, and I believe in our report we 

cited in 2007 that ICE had identified over 12,000 cases that had 

been referred to them based on overstay data. So there is a lot of 

value, in our view, to coming up with good, solid numbers, and we 

do believe that DHS should be able to deal with some of the error 

issues that they currently have, and they ought to be able to explain what the margin of error is for making those judgments. And 

then once they have done that, they can report that to the Congress, and Congress can determine whether they think that is a 

feasible rate for continuing their participation in the program. 

Senator KYL. All of the legislation that Senator Feinstein has 

been thinking about here deals in significant measure with this 

whole overstayer issue, and it gets around this 97-percent problem 

and says that is moot. We want to know about overstayers. I am 

not sure it had a section on the countries that may have lapsed in 

their performance, and we would want to add that if it does not. 

Chairman FEINSTEIN. That is right. 

Senator KYL. By the way, may I ask just one more question? 

Chairman FEINSTEIN. Sure. 

Senator KYL. It is a follow-up to your question, and that is, is 

there a response that you could give us today with regard Israel, 

Croatia, and Taiwan? 

Mr. BAKER. I can give you a basic response. In 2005, early 2005, 

before I joined the Government and before Secretary Chertoff came 

to DHS, DHS and the State Department came up with a set of road 

map countries, that is to say, the countries that they thought 

should be given a road map to visa waiver status. And they listed 

all of the countries that are on that chart, plus a few, and said you 

are the countries that we are going to be looking at most closely 

in this first convoy of potential visa waiver candidates. None of the 

countries that you mentioned—Croatia, Taiwan, Israel—were on 

that road map. And so we have focused our attention on the people 

in whom we created a certain amount of expectation. 

We will have to take another look at who the next candidates are 

once we have finished this round. But I guess I would say that, in 

fact, if you look around at the geopolitical events of the last several 

months, this has turned out not to be such a bad idea. These are 

countries whose friendship with the United States and whose ties 

16 

to the United States should be bolstered. They are new NATO 

members, and belonging to NATO is a much more important thing 

now than it was just 6 months ago, and strengthening our ties 

there I think would be a wise step. 

Chairman FEINSTEIN. So you are saying because 8 years ago a 

decision was made to create some road maps, that in 8 years you 

have not changed that? 

Mr. BAKER. Three years, but yes, we— 

Chairman FEINSTEIN. I thought you said the prior administration. 

Mr. BAKER. No, no, sorry. Before I came to Government, before 

Secretary Chertoff came. 

Chairman FEINSTEIN. I beg your pardon. 

Mr. BAKER. It was actually 2005. 

Chairman FEINSTEIN. Right. 

Mr. BAKER. And so we began the negotiations with those countries. I would stress that there is nothing today that prevents countries that want to be part of the Visa Waiver Program from coming 

in and saying, ‘‘We would like to start sharing information with 

you about people who are terrorists when they come to your country, about people who committed crimes and they come to your 

country.’’ Our door is open. If they want to come in tomorrow and 

start talking about that, it gives them a leg up when the time 

comes to say, ‘‘Please consider us for visa waiver status.’’ I would 

talk to every one of those countries tomorrow if they wanted to 

come in and do that. 

Chairman FEINSTEIN. Let me ask this question, if I may. What 

is being done about the extraordinary number of stolen passports, 

particularly in visa waiver countries? 

Mr. BAKER. We have engaged with both Interpol and the individual countries and have really begun to monitor their performance on an almost daily basis. We can tell you about particular 

countries—I would prefer to do that in a private session—what 

their performance has been in terms of how well they have done 

in reporting stolen passports within 24 hours of getting a report 

that the passport has been stolen. 

Now, there are a number of security measures built into these 

passports that makes it hard for people who have stolen them to 

turn them into plausible, long-lasting forged passports that can be 

used. But you are absolutely right that we have been very troubled 

by the extent to which organized crime has felt that these passports were so valuable that they would rather steal them than 

money in many cases. And all we can do is make sure that we are 

alert to invalidate them as quickly as possible, just as you would 

with a stolen credit card. 

Chairman FEINSTEIN. What concerns me is we are now going into 

the so-called fraud-proof passport, and, in fact, I know this number, 

at least 10,000 stolen in France a while ago were, in fact, fraudproof passports, Geneva Convention travel documents, international driver’s licenses. Now, why— 

Mr. BAKER. Well, we do not let people into the country with an 

international driver’s license. They have to have a passport. 

Chairman FEINSTEIN. Well, that is something that is good. 

17 

Mr. BAKER. But we are very alive to this concern. Now, just 

stealing it does not help. You still have to turn it into a plausible 

finished passport if you have stolen a blank, or you have to look 

a lot like the person that is identified in the passport. 

Also, you know, we take the fingerprints of everyone who comes 

to the country from outside the United States, and if they are using 

a stolen passport from someone who has been to the United States, 

their fingerprints are not going to match the fingerprints that were 

used the last time they came in. We have found a couple thousand 

people just by matching their fingerprints to people that we are 

looking for. All of that makes it much harder to pull off identity 

fraud even if you successfully steal a blank passport from a VWP 

country. 

Chairman FEINSTEIN. Has anyone from your Department actually spoken with Ron Noble of Interpol? 

Mr. BAKER. Absolutely. We have linked into their data bases. We 

have sent people to work at Interpol on problems of this sort. We 

are one of the largest users of their lost and stolen passport resources. We were the ones who pushed them to improve their resources so they could be more timely. 

Chairman FEINSTEIN. The reason I ask this is that the problem 

seems to be getting worse, not better. And as we go into the fraudproof passport, can tell you from immigration documents that are 

made on Alvarado Street in Los Angeles, they are done in 15 minutes, and you cannot tell the difference. This is a very dangerous 

area, I think. 

Mr. BAKER. It absolutely is, and I would not myself use the term 

‘‘fraud-proof passport.’’ It is like a fraud-proof credit card. It is very 

difficult to be fraud-proof. You raise the cost of trying to forge it, 

and then you have 

to build a lot of security measures around it, including back-end 

measures. Just as you get a lost credit card or a stolen credit card 

needs to be reported and then invalidated and the person who has 

it arrested, you need to do the same thing with passports. And that 

is part of our strategy in dealing with these stolen passports. 

Chairman FEINSTEIN. Thank you. 

If I might ask Mr. Ford this question, and this is kind of a toughie because it is going to call for your quick analysis. You have done 

a lot of good work, and I thank you for that very, very much. If 

you had to identify three things that could be done to make our 

concerns met, what would those three things be? 

Mr. FORD. Well, the first one would be one I have already talked 

about, which is developing the capability at DHS to look at the 

overstay data and more effectively use it. I already talked about 

that, but that would be one of the three. 

I think a second area that the DHS is currently working on but 

we would like to see them accelerate is in this issue of lost and stolen passports. They have established agreements with a number of 

aspirant countries. We would like to see them extend those to the 

current members as well. We believe that they have a plan to do 

so, but we have not seen that. But we think that is an important. 

Chairman FEINSTEIN. What kind of agreement is it? 

Mr. FORD. These are information-sharing agreements that Secretary Baker already talked about. We have those agreements with 

18 

the aspirant countries, I think seven or eight. I think it is either 

seven or eight. We would like to see that expandedChairman FEINSTEIN. So you would expand that to the other 23? 

Mr. FORD. Well, we have 27 current members. We would like to 

see agreements with those 27 members because this issue of lost 

and stolen passports is a critical issue. And, you know, I think that 

currently we are operating more or less on a voluntary basis as to 

whether or not they provide that information on a timely basis, 

something that we were concerned about in the past. I think moving that ball down the court a little further by establishing more 

formalized agreements would be something that we ought to consider to strengthen that aspect of the program. 

Chairman FEINSTEIN. Let me get a reaction from Secretary 

Baker on that. That sounds like a good idea. 

Mr. BAKER. In general, I think Mr. Ford has identified something 

that is very much the concern for the next 2 years in the Visa 

Waiver Program, which is taking the standard that we have set 

with the aspirant countries, the high 

security standards that we have set for them joining the Visa 

Waiver Program, and making sure that we have not created a twospeed Visa Waiver Program. We have to apply all those security 

standards across the board to all the visa waiver members. 

Chairman FEINSTEIN. Will you do it? Mr. Baker. We will begin 

that process, and we— 

Chairman FEINSTEIN. Can you say yes or not? 

Mr. BAKER. Yes. 

Chairman FEINSTEIN. You are on the record. 

Mr. BAKER. I could not be more determined. We have said to the 

aspirant members you are not joining as a second-class member of 

visa waiver with more obligations than the other members. But the 

other members are in, and we need to give them time to come up 

to the same standard that you have set. 

Chairman FEINSTEIN. You realize that the bill that we are thinking about would require it. We would require that current visa 

countries sign passport data agreements before new countries could 

be admitted. 

Mr. BAKER. Well, that is the one place where I would put a footnote. The performance of each of these countries with respect to 

lost and stolen passports is really about execution and it is not 

about the agreements you have signed. And people who sign agreements have good 

performance, and some of them have not so good performance. 

We really would prefer to judge people by their performance rather 

than by whether they have signed an agreement. But that is a 

point on which—I think that is a relatively minor point. 

Chairman FEINSTEIN. Mr. Ford, your third point? 

Mr. FORD. I think the third area that I would raise at this point 

is to assess whether ESTA actually functions as it is intended on 

January 12th when DHS hopes to make it mandatory to all of the 

current members and the aspiring members, those that they decide 

that they want to bring into the program. So I think we want to 

make sure that system works, and so that would be the third area. 

19 

Chairman FEINSTEIN. Well, do I need to ask you or do we need 

to ask you to do this, or are you going to do that, assess whether 

it works? 

Mr. FORD. Well, we have not been asked to do that. I think— 

Chairman FEINSTEIN. You will be, with a letter. 

Mr. FORD. That is what I get for bringing it up, right? 

[Laughter.] 

Chairman FEINSTEIN. Senator? 

Senator KYL. Well, again, follow up on some of these questions, 

I had understood, Secretary Baker, that actually some of the existing visa waiver countries had been approached about also complying with some of the security measures that the new countries 

will be required to implement. You have indicated it is your intention, but isn’t that manifested by the fact that some of these countries already have been approach with a request to do these things? 

Mr. BAKER. Absolutely. We have already begun talking to countries about the security standards that we think are essential to 

have a good Visa Waiver Program. And, indeed, there are incumbent members who already meet those standards, so we are aggressively pursuing this. It is just, you know, we have gone through our 

process in which we have been negotiating this with seven countries, and my team is a little sleep deprived. And so turning to the 

next 27, I would like to give them a break of, you know, at least 

a long weekend. 

Senator KYL. Well, to make it clear to all of our friends around 

the world that this is not just a Department of Homeland Security 

that is trying to give them a hard time, that the legislative branch 

is at least as anxious that everyone sign up to these agreements, 

and more, that this is a United States of America unified desire. 

My hope would be that we could work with you in identifying some 

incentives that can be put in the legislation that Senator 

Feinstein is talking about to encourage all countries to provide 

this information, certainly anybody that wants to remain in the 

Visa Waiver Program. And I think in some cases what you have 

indicated is for one reason or another that we do not have to get 

into, it has been more difficult for them all to agree to these things. 

And to the extent we can provide incentives for them to do so, that 

could help. Would that be helpful? 

Mr. BAKER. We would like to work with you on that. The Visa 

Waiver Program is good for the United States, too. It brings a lot 

of foreign exchange here, and that is something that we need. So 

we do not want to cutoff our nose to spite our face, but we have 

to have a secure program, too. So we would be delighted to work 

with you on that. 

Senator KYL. Right. Well, the idea here is that the rest of the 

world would know that we are united in desiring that this gets 

done, and there are lots of different incentives that we could build 

into legislation. 

Mr. BAKER. I think the bipartisan team that you and Senator 

Feinstein have presented has stood us in good stead already in our 

discussions with other countries. 

Senator KYL. Sure. Thank you. 

Actually, here is a question for both of you, but I am not sure, 

Mr. Ford, that you gave the answer—or that we asked you to anVerDate Aug 31 2005 09:28 Jan 08, 2009 Jkt 045063 PO 00000 Frm 00023 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\45063.TXT SJUD1 PsN: CMORC
20 

swer whether the deadline you think is going to be met on the biometric, the July 2009 biometric requirement for exits from airports. 

Is that going to be met? And if it is, how is it going to be met, Secretary Baker? And if not, what has to be done here to get it done? 

Mr. FORD. Well, you know, DHS clearly faces some challenges in 

meeting that timeframe. They have indicated that they believe they 

will. You know, they have got—I am not sure if they have got their 

final rule out yet regarding how they plan to implement that, but 

we do know there is a lot of resistance in the airline industry and 

the travel community, largely, I assume, because of the potential 

cost involved for them to manage that part of the program. 

And then just in the past, we have had some issues with DHS 

in terms of the schedules that they have put in place to try to implement the exit program as part of US-VISIT. We are in the process now of looking at that issue, but I think our current view is 

we think it is going to be a challenge for them to get there, but 

we will see. It is not July 2009 yet. 

Mr. BAKER. I essentially agree with Mr. Ford. This is a challenge. However, we have put out a proposed rule that would have 

the airlines that are already gathering information from the passport also administer the fingerprinting that would give us the biometrics. That is the most cost-effective and efficient mechanism for 

both the Government and for the industry, we believe. 

We have taken comment on that. As Mr. Ford says, it is quite 

controversial with the airlines, and so they will not want us to implement this. But if we do not implement it under the existing statute, there will not be a second convoy of these waiver candidates, 

and that will disappoint a large number of people and may make 

it harder to get the security measures that we would like to get. 

Senator KYL. Here, again—and I appreciate the answer-we understand the stresses that the airline industry is under right now. 

With the high cost of fuel, they are under enormous stresses. Nonetheless, they have as much of an incentive as everyone else does 

to ensure safe travel. And perhaps we can work together to find incentives of one kind or another to gain their cooperation here. I 

know it is going to be the law, but we frequently ask someone to 

bear the costs of something here, and since this is a security matter for the entire United States, maybe there are ways that we can 

ameliorate the cost to the folks that we are asking to help us perform this work. If you have any ideas right now, fine, but I think 

that is probably something we will want to visit with you about 

later. 

Mr. BAKER. Once again, as with other nations, to the extent that 

the executive branch and Congress are saying the same thing and 

presenting a united front, that is much more likely to produce results. 

Senator KYL. I had one last question. It is pretty general, and 

you may have covered this, Mr. Ford, in your report. I confess that 

I have only skimmed it and talked to staff about it. You may have 

this in there, but going back to the fundamental question that we 

are getting at, how can we develop an as accurate as possible 

entry-exit system that is so useful in so many different ways here? 

The one chart shows a lot of different things that are being done 

21 

or need to be done, the costs of them and the fact that there are 

problems with each of them. 

What is the best way for either the Department or perhaps for 

GAO to help us understand how each of the different mechanisms 

work together? How they could lead to a coherent and effective program with very little error? And what would have to be done to 

cause that to happen if what we already have is not going to get 

us there? It is kind of a convoluted question, but I think you see 

where we are going. Just by way of illustration, not everybody that 

comes in by air leaves by air. OK? That is problem No. 1. How do 

you account for those who leave by another mechanism? And so on. 

What would be the best way for us to understand what is still 

needed? Sometimes we have the notion that we get only exactly 

what we ask for and that we are not expert enough to be able to 

ask for everything that is really needed. I mean, it is a little bit 

like on that 97-percent question. I think you did exactly what we 

told you to do, but we did not tell you to do what we really intended for you to do. And I have a feeling that somebody probably 

knew that, but it is easier to just comply and not say anything. 

And that is not a pejorative comment. You have got enough to do. 

But how do we put this program together so that we know what 

else Congress needs to do, whether it is money or additional authority, and you all have identified how to actually make it work 

and it is a system that can be audited in such a way that we have 

an idea of how it is working for the ultimate compliance issues as 

well as just substantively wanting to make the system work? 

Mr. FORD. Well, let me say, first of all, that our current report, 

the one we just issued, we have no extensively analyzed the process, as you have just articulated it. So we are not in a good position 

at this point to tell you what type of model, for example, DHS 

ought to follow. We do not have a good sense of the precise criteria 

that DHS is currently considering in trying to design an effective 

exit system that measures this overstay data rate information. 

The recommendations that we have made in our current report 

are designed to make DHS put together a more coherent—I am 

going to use the words ‘‘more coherent’’—effort in gathering that 

data. At the time we did our work, there were several different offices within DHS that collect statistics related to people who enter 

and leave the country. There was not one particular place in DHS 

that was responsible for examining this overstay issue. 

We suggested that DHS consider establishing a focal point for 

that. We understand that they are considering it, although we do 

not know the details of it. 

But to answer your general question about what should this program look like, how can we assure that it is working, how can we 

assure that it is being complied with, whatever requirements that 

DHS lays out, we have not really fully examined that, so I cannot 

give you a comprehensive answer to it. I can only give you a partial 

answer, which is basically that we want DHS to strengthen their 

capabilities to at least assess the data that they collect so that they 

then can design a more effective exit system. That is really what 

our recommendation is designed for. 

22 

Mr. BAKER. I would start by saying it is not just Senators who 

sometimes feel as though they have gotten just the answer to the 

question that they have asked. I have had that experience myself. 

I have been thinking a lot about this in preparation for the testimony, and I wonder if to some extent we have not started with the 

wrong end of the telescope and whether we might make more 

progress in this fashion. We do have an exit system that produces 

a list of people who are either we do not know what has become 

of them or they are overstays. And we have a mechanism by which 

those people are investigated by Immigration and Customs Enforcement, particularly the high-priority ones who may come from 

backgrounds that make us concerned. 

If we started with that list, the high-priority people that we are 

looking at, and said, well, what is the source of the errors—because 

when our ICE investigators go out, they find a lot of errors—and 

what is the most cost-effective way to fix them and then walk back 

through the process, then we are likely to find something that, once 

we have judged the cost, we can make the most cost-effective 

tweaks to the system. It may be that a land exit system is the right 

approach, but I was struck when I asked someone what is the largest source of error, and the investigator said, well, one of the biggest is we go out, we have somebody who has overstayed, who was 

supposed to leave a year ago, he is still here, as far as we can tell, 

we go to the address and he is there. And we say, ‘‘OK, we got 

you.’’ And he says, ‘‘But, no, I have a piece of paper from CIS that 

extended my stay by 2 years. So I am here legally. I did not leave 

when I was supposed to, but your records just have not caught up 

with the new date by which I have to leave.’’ 

Now, that is a problem we have not discussed at all today because it does not have anything to do with matching arrivals and 

departures. It has to do with making sure that our record systems 

are fully automated and talking to each other. But if we start with 

the people we are looking for and ask why are we not finding them, 

why is this list wrong, we may actually make more progress in fixing that problem than if we start with a predetermined notion of 

how to solve the problem. 

Chairman FEINSTEIN. If I might interject, on page 16 of the GAO 

report, if you have it in front of you, I think you will see a good 

alternative approach. And it states in the second to the last sentence, ‘‘As we previously testified, an alternate approach would be 

to track air arrivals from a given point in time and determine 

whether those foreign nationals have potentially overstayed.’’ In 

other words, take just one window of time and do the analysis. 

Mr. BAKER. If you will let me get a little geeky here, I think that 

is actually a pretty good proposal from GAO, but it is not as good 

as starting with people who have arrived and say let’s take that 

same constrained period of time and ask who should have left in 

that period. It should produce the same result, but it is much easier to take a look at our departure records in a recent period of 

time, because if you start with arrivals and you say, ‘‘When were 

you supposed to leave? ’’—since you are looking at visas as well as 

visa waiver—you are going to get dates that are 3 years out, a year 

out, 90 days out. And then you have to go take all of those dates 

and try to come up with a departure—an overstay rate. It is a lot 

23 

easier to start with the date when people were supposed to leave, 

and then you can just investigate a very recent period of time, say 

6 months or a year, or 3 months, and say, OK, let’s take all the 

people who should have left then. Did we find a record of their departure? And if not, why not? 

But that is a very small difference from what GAO is talking 

about. We completely agree that that is, broadly speaking, the best 

way to start getting at the overstay problem. 

Chairman FEINSTEIN. Limiting the universe by time— 

Mr. BAKER. Yes, so I apologize for that diversion to detail. 

Chairman FEINSTEIN. Mr. Ford, do you have a comment on that? 

Mr. FORD. No. I think that approach would be useful. 

We are not really at a point where we can prescribe exactly the 

best way to do this. Our suggestion that you just mentioned was 

designed to look at—since we have pretty good information on who 

comes in, at least on the air side, we have good data there, we 

thought that since that data seems to be pretty reasonably sound, 

that would be a basis to go back and find out, well, if we know how 

many are coming in and we have a pretty good idea of that, then 

we should be able to design something that would link back to that 

for the exit part of it, so that way you could say Joe came in on 

March 1st, did Joe leave 90 days later, yes or no. 

But I do not disagree that one way to do it is the way the Secretary is mentioning it here. 

Senator KYL. The only point I would make is that this reminds 

me a little bit about the debate about the people who stay here illegally after they have come in via a different route, that is to say, 

across the California or Arizona border. And until we committed 

ourselves to trying to find those folks and tell them they have to 

leave, the problem just kept getting worse and worse and worse. 

And we also designed systems to try to prevent their illegal entry 

in the first place. 

Theoretically, the answer to this problem is to have a cohort of 

enforcement officers sufficiently resourced to start going out the 

day after somebody is supposed to have left, you know that he was 

supposed to be here 90 days, you have no record of him leaving, 

let’s go see if we can find him. 

Now, maybe there is a chance of 1 in 100 that, gee, it was just 

because we did not coordinate our efforts with the other Department, the State Department that has granted him an extension or 

something. But that is not the reason why 40 percent of the people 

who are here illegally are visa overstayers. They came here, they 

wanted to stay, and they decided to stay because we have no 

means of enforcement to identify them and ask them to leave. 

So that is the simple answer to the question, but I understand 

getting all of that coordinated and resourced is still a complicated 

matter. 

Mr. BAKER. The resources is the big concern. For the foreseeable 

future, we will have to prioritize. We will have to say we are going 

to after first the people we believe are criminals or that we believe 

may be terrorists, and we will not be able just to go after everyone. 

And I would say from what I have heard about this program, it 

turns out a surprisingly large percentage of the people who are listed as overstays leave within 10 days. So instead of leaving on day 

24 

90, they leave on day 100. Partly, people cannot count. Partly, people think it doesn’t really matter. So we probably should not rush 

out to get them on day 91. But after a short period of time, and 

actually if they are somebody we think is a criminal, we should go 

after them on day 91. 

Chairman FEINSTEIN. My point is this is a huge program. It is 

16 million people coming in from 27 different countries with no 

consular check. The first time you know anything about them is 

when they enter the country. It portends danger. And I think the 

danger element is a very big element, and we can track back various individuals that corroborate that. 

You know, I am very candid. I am not for expanding the program. I am for limiting the program. I am for getting the numbers 

down to a manageable number where you have got the systems to 

handle it. And to me, the way the Department goes about it is sort 

of backwards. You do deals with people and then bring them in the 

program, and you cannot really monitor it, you cannot really control it. You do not really know who is coming. You may know who 

is going, maybe someday. And to me, that does not sound like a 

program that protects the security of the American people. 

Mr. BAKER. Senator, I agree with you in part. I am as alive to 

the danger of this program, the risks to this program, as you are, 

and I completely share your concerns about the risks. I believe, as 

you do, that al Qaeda thinks it is going to get in using the Visa 

Waiver Program if it can. It is exploring all kinds of opportunities 

to come to the U.S., and certainly this is one that we should worry 

about. 

I think we have done a lot on the front end to make it much 

harder to get into the country. Concerns about whether we can pick 

people up after 90 days, a different question, and I think less security than immigration focused. But I understand the security element to it as well. 

Chairman FEINSTEIN. OK. Let me ask you a question. Belgium. 

You have had al Qaeda use Belgium visa waiver passports to come 

in. What has been done to prevent that? 

Mr. BAKER. We have pressed the Belgian Government very hard, 

and I think with some success, to do a much better job of reporting 

lost and stolen passports. But as I said, in the long run, we need 

good cooperation from them in identifying terrorists within their 

territory so that when they try to come to the U.S., we know that 

this is somebody who needs a lot of scrutiny. And we frankly need 

to get a better information-sharing relationship with a number of 

Northern European countries, including Belgium. 

Chairman FEINSTEIN. Because my own view is the heart of Europe is really the area at issue. Would you agree with that? 

Mr. BAKER. I do agree with that. There are problems from our 

point of view, and in many cases from the local government’s point 

of view all across Northern Europe, but also down in a number of 

countries on the Mediterranean. 

Chairman FEINSTEIN. And, it might be interesting to ask the 

GAO to take a look and give us some recommendations on how 

that issue might be better dealt with, because any way you look at 

it, you have no pre-screening of these people. And I certainly do not 

have the answer, but, Mr. Ford, could you take a look at that? 

25 

Mr. FORD. Well, sure. I mean, if you ask us to look at it, to the 

extent we are, we would be more than happy to try to get at it. 

As I mentioned earlier, I think one vehicle would be, again, to see 

whether or not the ESTA system is working, because it is a tool 

that, if it does work, will provide advance information before people 

actually get on an airplane. So that tool could be at least one vehicle to try to prevent bad people from getting on the airplane; 

whereas, currently now they might get on the airplane, and we do 

not find out they are bad until they are already in the air, which 

is not good. 

Chairman FEINSTEIN. How many people in the—and you may not 

know this, and I do not know it either—Visa Waiver Program when 

they come in are sent back? 

Mr. BAKER. It is a relatively small number. I can tell you what 

our rejection rate under ESTA has been, which is roughly similar 

to the—it is actually larger, substantially larger than the sendback rate for people arriving here, and it is less than one-half of 

1 percent. I would guess that we send back 30, 40 people a day, 

on that order. 

Yes, I have just been handed a note. Over a million people came 

from Germany last year, and we sent home about 500 of them because we felt that they had either misrepresented their status or 

were a threat to the United States. 

So we are really looking for a needle in a haystack, and it is important to remember that the whole point of our having this good 

data is to allow the people who are not a threat to feel completely 

welcome and not to stand in line for 3 hours, while at the same 

time the people that we are worried about get worked over pretty 

hard in terms of questions and examination of their passport, their 

luggage. 

Chairman FEINSTEIN. Well, just if I may in conclusion, please do 

not feel that we are adversaries. This is a bipartisan effort. We do 

want to work with the Department and the GAO. I would really 

like to do this as a first-day bill next year. We will have a little 

bit of time to work on it, and I would like to ask, Mr. Ford, if you 

could participate and give us your best judgments. I think getting 

people that have knowledge of this program—and Mr. Ford certainly does—is helpful. And if we need to redefine what we meant 

on the 97 percent, I think we are happy to do that. 

Mr. BAKER. Senator, could I join in that? I believe that we are 

allies at heart, and I am really delighted that we have had this 

kind of exchange. Some of the things that we would love to talk to 

you about are law enforcement sensitive or diplomatically sensitive, 

and so it might be useful not only to talk about the legislation you 

are planning but to give you a briefing on the details of some of 

the concerns that we have about the Visa Waiver Program. And we 

would be glad to do that with you and Senator Kyl at your convenience. 

Chairman FEINSTEIN. I think that would be very much appreciated. Perhaps we could do it before the end of the week. 

Mr. BAKER. OK. 

Chairman FEINSTEIN. Is that all right? Do you have other questions? 

Senator KYL. No, I do not. 

26 

Chairman FEINSTEIN. Well, let me say thank you very much. Our 

interest is not going to wane. We will both be here next year, I 

think regardless of whoever is Chairman of this Subcommittee. We 

are going to continue our pursuit of this. We will have a bill to introduce to clarify it. We look forward to working with both of you 

in developing it. 

I, too, have thought a lot about the issue of commerce, because 

I have heard from the Chamber of Commerce and I have heard 

from the convention and all these people that want more and more 

people coming into our country because it means business. We 

learned a big lesson on 9/11, and it cannot be business as usual. 

And so we have to remember that. I see this as just an enormous 

weakness, and we have to correct that weakness. 

So I want to work with you. I want to do the right thing. I think 

protecting America is much more important than business. So that 

is where I am. 

Senator Kyl, do you have a concluding remark? 

Senator KYL. No. Thank you very much. 

Chairman FEINSTEIN. In any event, thank you both for coming. 

We appreciate it very much, and the hearing is adjourned. 

[Whereupon, at 4:01 p.m., the Subcommittee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

27 


45063.001
28 


45063.002
29 


45063.003
30 


45063.004
31 


45063.005
32 


45063.006
33 


45063.007
34 


45063.008
35 


45063.009
36 


45063.010
37 


45063.011
38 


45063.012
39 


45063.013
40 


45063.014
41 


45063.015
42 


45063.016
43 


45063.017
44 


45063.018
45 


45063.019
46 


45063.020
47 


45063.021
48 


45063.022
49 


45063.023
50 


45063.024
51 


45063.025
52 


45063.026
53 


45063.027
54 


45063.028
55 


45063.029
56 


45063.030
57 


45063.031
58 


45063.032
59 


45063.033
60 


45063.034
61 


45063.035
62 


45063.036
63 


45063.037
64 


45063.038
65 


45063.039
66 


45063.040
67 


45063.041
68 


45063.042
69 


45063.043
70 


45063.044
71 


45063.045
72 


45063.046
73 


45063.047
74 

Æ 


45063.048