[Senate Hearing 107-890]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 107-890

         THE ENHANCED BORDER SECURITY AND VISA ENTRY REFORM ACT

=======================================================================

                                HEARING

                               before the

                      SUBCOMMITTEE ON IMMIGRATION

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

                               __________

                             APRIL 12, 2002

                               __________

                          Serial No. J-107-71

                               __________

         Printed for the use of the Committee on the Judiciary


85-885              U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 2003
____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpr.gov  Phone: toll free (866) 512-1800; (202) 512ï¿½091800  
Fax: (202) 512ï¿½092250 Mail: Stop SSOP, Washington, DC 20402ï¿½090001

                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware       STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin              CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin       JON KYL, Arizona
CHARLES E. SCHUMER, New York         MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois          JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington           SAM BROWNBACK, Kansas
JOHN EDWARDS, North Carolina         MITCH McCONNELL, Kentucky
       Bruce A. Cohen, Majority Chief Counsel and Staff Director
                  Sharon Prost, Minority Chief Counsel
                Makan Delrahim, Minority Staff Director
                                 ------                                

                      Subcommittee on Immigration

               EDWARD M. KENNEDY, Massachusetts, Chairman
DIANNE FEINSTEIN, California         SAM BROWNBACK, Kansas
CHARLES E. SCHUMER, New York         ARLEN SPECTER, Pennsylvania
RICHARD J. DURBIN, Illinois          CHARLES E. GRASSLEY, Iowa
MARIA CANTWELL, Washington           JON KYL, Arizona
JOHN EDWARDS, North Carolina         MIKE DeWINE, Ohio
                 Melody Barnes, Majority Chief Counsel
                Stuart Anderson, Minority Chief Counsel


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Brownback, Hon. Sam, a U.S. Senator from the State of Kansas.....     3
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California.....................................................     8
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......    44
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts..................................................     1
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona..........     3
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.    45

                               WITNESSES

Byrd, Hon. Robert C., a U.S. Senator from the State of West 
  Virginia.......................................................    27
Salamone, MaryEllen, Director, Families of September 11, Inc., 
  North Caldwell, New Jersey.....................................     4
Walker, Kathleen Campbell, American Immigration Lawyers 
  Association, El Paso, Texas....................................     9

                       SUBMISSIONS FOR THE RECORD

Air Crash Victims Families Group, Ridgewood, New Jersey, 
  statement......................................................    47
Alliance for International Educational and Cultural Exchange, 
  Michael McCarry, Executive Director, Washington, D.C., letter..    49
American Civil Liberties Union, Timothy H. Edgar, Legislative 
  Counsel, Washington, D.C., statement...........................    50
American Federation of Government Employees, AFL-CIO, Beth Moten, 
  Legislative Director, Washington, D.C., statement..............    55
American Immigration Lawyers Association, Church World Service, 
  Episcopal Migration Ministries, Hebrew Immigrant Aid Society, 
  Immigration and Refugee Services of America, Institute of 
  International Law and Economic Development, Leadership 
  Conference for Civil Rights, Lutheran Immigration and Refugee 
  Services, National Association of Latino Elected and Appointed 
  Officials, National Council of La Raza, National Immigration 
  Forum, joint statement.........................................    58
Americans for Better Borders, Washington, D.C., letter...........    56
Biometric Foundation, M. Paul Collier, Washington, D.C., 
  statement and attachment.......................................    59
Department of Commerce, National Institute of Standards and 
  Technology, Arden L. Bement, Jr., Director, statement..........    63
Families of EgyptAir 990, Inc., James A. Brokaw II, President, 
  Portage, Indiana, letter.......................................    69
Families of September 11, MaryEllen Salamone, Director, Great 
  Falls, Virginia, letter........................................    70
Fraternal Order of Police, Steve Young, National President, 
  Washington, D.C., statement....................................    71
International Biometric Industry Association, John E. Siedlarz, 
  Chairman, Washington, D.C., letter.............................    75
NAFSA: Association of International Educators, Marlene M. 
  Johnson, Executive Director and CEO, Washington, D.C., letter..    76
National Immigration and Naturalization Service Council, Charles 
  J. Murphy, President, Washington, D.C., letter.................    77
Travel Industry Association of America, Washington, D.C., 
  statement......................................................    78
U.S. Chamber of Commerce, R. Bruce Josten, Executive Vice 
  President, Government Affairs, Washington, D.C., letter........    79

 
         THE ENHANCED BORDER SECURITY AND VISA ENTRY REFORM ACT

                              ----------                              


                         FRIDAY, APRIL 12, 2002

                               U.S. Senate,
                       Subcommittee on Immigration,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 9:00 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Edward M. 
Kennedy (chairman of the subcommittee) presiding.
    Present: Senators Kennedy, Feinstein, Cantwell, Brownback, 
and Kyl.

 STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE 
                     STATE OF MASSACHUSETTS

    Chairman Kennedy. We will come to order. I am pleased to 
hold this hearing with my friend and colleague, Senator Kyl, 
and others who will be joining with us on the Enhanced Border 
Security and Visa Entry Reform Act. Senator Brownback, Senator 
Feinstein, Senator Kyl, and I worked together over many months 
to create a bipartisan response to the national security 
challenges that we face.
    This is the second border security hearing we have held in 
this subcommittee. Senator Feinstein and Senator Kyl have held 
hearings in the Technology Subcommittee to address many of 
these issues. This important legislation passed the House twice 
and is supported by 60 Senators. The bill strengthens the 
security of our borders, improves our ability to screen foreign 
nationals, and enhances our ability to deter potential 
terrorists. It is long past time that the Senate pass this 
important legislation.
    The terrorist attacks and INS's recent action notifying 
flight schools that visas were approved for two of the 
hijackers clearly demonstrate that there is an urgent need to 
close the loopholes in our immigration system. We must enhance 
intelligence and technology capabilities, strengthen training 
programs for border officials, Foreign Service officers, and 
improve the monitoring of foreign nationals already in the 
United States.
    The USA PATRIOT Act and the airport security bill are 
important steps in the efforts to improve national security, 
but further action is needed and this legislation is a critical 
part of our effort to strengthen the security of our borders, 
enhance our ability to prevent future terrorist attacks, while 
also reaffirming our tradition as a nation of immigrants.
    We cannot delay any longer in passing this critical 
legislation. Some have suggested that we wait to act on this 
bill until after we pass legislation to restructure the 
Immigration and Naturalization Service, but the many important 
reforms that this bill requires need to be enacted regardless 
of how our agencies are organized. These changes cannot wait 
for bureaucratic arrangements to be resolved. As we have seen, 
the risks are too great.
    I look forward to the testimony of our witnesses and to the 
Senate passage of this legislation in the very near future.
    [The prepared statement of Senator Kennedy follows:]

                 Statement of Senator Edward M. Kennedy

    I'm pleased to hold this hearing on the Enhanced Border Security 
and Visa Entry Reform Act. Senator Brownback, Senator Feinstein, 
Senator Kyl and I worked together over many months to create a 
bipartisan response to the national security challenges we face.
    This is the second hearing we've held in this Subcommittee on the 
issue of border security, and Senator Feinstein and Senator Kyl have 
held hearings in the Technology Subcommittee to address many of these 
issues as well. This important legislation passed the House twice and 
is supported by 60 Senators. The bill strengthens the security of our 
borders, improves our ability to screen foreign nationals, and enhances 
our ability to deter potential terrorists. It's long past time that the 
Senate pass this important legislation.
    The terrorist attacks--and INS's recent action notifying flight 
schools that visas were approved for two of the hijackers--clearly 
demonstrate that there is an urgent need to close the loopholes in our 
immigration system. We must enhance intelligence and technology 
capabilities, strengthen training programs for border officials and 
foreign service officers, and improve the monitoring of foreign nations 
already in the United States.
    In strengthening security at our borders, we must also safeguard 
the unobstructed entry of the more than 31 million persons who enter 
the U.S. legally each year as visitors, students, and temporary 
workers. Many others cross our borders from Canada and Mexico to 
conduct daily business or visit close family members.
    We also must live up to our history and heritage as a nation of 
immigrants. Continued immigration is part of our national well-being, 
our identity as a nation, and our strength in today's global economy. 
In defending America, we are also defending the fundamental 
constitutional principles that have made America strong in the past and 
will make us even stronger in the future.
    Legislation must strike a careful balance between protecting civil 
liberties and providing the means for law enforcement to identify, 
apprehend and detain potential terrorists. It makes no sense to enact 
reforms that severely limit immigration into the United States. 
``Fortress America,'' even if it could be achieved, is an inadequate 
and ineffective response to the terrorist threat. The Enhanced Border 
Security and Visa Entry Reform Act strikes that balance.
    We can't delay any longer in passing this critical legislation. 
Some have suggested that we wait to act on this bill until after we've 
passed legislation to restructure the Immigration and Naturalization 
Service. But the many important goals of this bill, including 
developing an interoperable data system to give immigration and 
consular officers access to relevant law enforcement and intelligence 
information, requiring that biometric identifiers be included in travel 
documents, and strengthening the training of consular officers and 
immigration inspectors, are important reforms that need to be enacted, 
regardless of how our agencies are organized. The reforms that this 
bill requires cannot wait for bureaucratic arrangements to be resolved. 
As we've seen, the risks are too great.
    The USA Patriot Act and the airport security bill are important 
steps in the effort to improve national security, but further action is 
needed. This legislation is a critical part of our effort to strengthen 
the security of our borders and enhance our ability to prevent future 
terrorist attacks, while also reaffirming our tradition as a nation of 
immigrants. It has broad bi-partisan support, and is supported by a 
variety of organizations, including the U.S. Chamber of Commerce, the 
International Biometric Industry Association, Americans for Better 
Borders, the National Immigration and Naturalization Service Council/
AFGE, the American Federation of Government Employees, the Association 
of International Educators (NAFSA), the American Immigration Lawyers 
Association, the Leadership Council for Civil Rights, National Council 
of La Raza, and the National Immigration Forum.
    I look forward to the testimony of our witnesses, and I hope the 
Senate acts favorably on this legislation in the near future.

    Chairman Kennedy. Senator Brownback.

STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR FROM THE STATE 
                           OF KANSAS

    Senator Brownback. Mr. Chairman, thank you very much for 
holding this important hearing. I, too, agree that it is time 
that we pass this very important, needed legislation. We were 
close to passing it late last year at the waning hours of the 
session. We did not get it through at that time. It is 
imperative that we get it through now.
    Let me say first, Mr. Chairman, how grateful I am to you 
and to Senator Kyl and Senator Feinstein for the opportunity to 
work with you on this bill. Together, I think we have crafted 
an excellent bill, one that clearly and thoroughly serves the 
best interest of the public. For all the technical language in 
this bill, it distills down to one simple precept: Protect our 
country, our communities, our children from future terrorist 
attacks. I am proud to work with all three of you on this 
project of great importance and great integrity. I am delighted 
we are having this hearing today to discuss some of the ins and 
outs and the needs within this bill.
    I know that it needs not be said between the four of us, 
but I want the record to reflect that this legislation is not 
the creature of hurried or rash deliberation. Far from it. This 
bill was carefully vetted with our colleagues in the Senate 
before its introduction last November and it was carefully 
tweaked in bicameral negotiations before its passage by the 
House last December. This legislation has ringing endorsements 
from a wide array of interests and the public, including family 
groups, business groups, law enforcement, schools and 
universities.
    As you know, we have extensively, extensively consulted 
experts, both within the executive branch and outside it, to 
make sure that we are getting it right. In short, we have 
worked with the affected agencies and the affected public. Even 
though the legislation may contain some tough provisions, the 
people and entities who are impacted by it see its wisdom. I am 
proud to say that we have done a good job in balancing our 
nation's security needs with the need to protect our values and 
our freedom.
    I am delighted that we are having this hearing to vet 
further on this particular piece of legislation some concerns 
on it, but I think at the end of the day, within the next 
several days, at least by this time next week, we need to get 
this piece of legislation passed and on to the President. It is 
past time for us to do it. We need to move it on forward.
    Thank you, Mr. Chairman. I look forward to the witnesses 
testifying at this hearing.
    Chairman Kennedy. Senator Kyl.

  STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF 
                            ARIZONA

    Senator Kyl. Thank you, Mr. Chairman. Again, thank you for 
holding this hearing. You and Senator Feinstein and Senator 
Brownback have been great to work with in getting this bill 
together. I would also like to thank our staffs who have, 
frankly, done a lot of the work: Esther Olivaria, Lavita 
Strickland, David Neal, and Elizabeth Mayer. We do not often 
enough thank those who do a lot of the hard work for us on our 
staff.
    The unanimous consent agreement which is pending before the 
Senate allows us to bring this bill up today and we are looking 
forward to moving it quickly in order to close the loopholes in 
our immigration laws that have allowed terrorists to come into 
this country.
    We are looking forward to hearing from the witnesses, and 
again, thank you, Mr. Chairman.
    Chairman Kennedy. Thank you very much.
    We will hear first from MaryEllen Salamone. MaryEllen 
Salamone is a pediatric physical therapist, a special education 
consultant in North Caldwell, New Jersey. She worked for the 
State of New Jersey for many years writing and implementing 
policy. Her husband, John, worked for Cantor Fitzgerald on the 
104th floor of Tower I of the World Trade Center. After the 
terrorist attacks, she has joined with other families who have 
lost loved ones to establish Families of September 11, a 
nonprofit organization that works to promote the interests of 
victims' families and support public policies that strengthen 
our security and guard against future attacks.
    We are very, very grateful. We know that this is difficult 
for you to be talking about these issues, but it is very 
important that we hear you. Thank you for coming.

    STATEMENT OF MARYELLEN SALAMONE, DIRECTOR, FAMILIES OF 
             SEPTEMBER 11, INC., NORTH CALDWELL, NJ

    Ms. Salamone. Thank you, Mr. Chairman, Senator Brownback, 
and all members of the committee for granting me this 
opportunity to testify on this most critical issue. I would 
also like to take a moment to thank Senator Kennedy, Senator 
Byrd, the Senators from our area, Senators Clinton and Schumer 
and Corzine and Torricelli, for supporting the families of 
September 11 in negotiating the aftermath of the devastating 
tragedy on September 11.
    Between July and September 2001, 19 terrorists gained 
access to our country, unrecognized. On September 11, 2001, 
they passed undetected through airline security, hijacked four 
commercial jets, and crashed into the towers of the World Trade 
Center, the Pentagon, and rural Pennsylvania. They murdered in 
cold blood thousands of innocent people. They maimed the 
security innocence of more than 10,000 children left without 
one or both parents. They destroyed the trust Americans had in 
the safety of their country. On September 11, 2001, the 
terrorists won.
    My name is MaryEllen Salamone. I am the wife of John 
Salamone, a broker in preferred stock for Cantor Fitzgerald who 
was killed in the apocalyptic attacks on September 11. I am a 
widow, a newly single mother of three small, beautiful 
children, and a director of the organization Families of 
September 11. We are comprised of nearly 1,000 family members 
of victims of the attacks and we are committed to affect change 
to prevent further acts of terrorism so that the lives taken 
from our loved ones will not have been lost in vain.
    Families of September 11 supports without reservation and 
without revision the Enhanced Border Security and Visa Entry 
Reform Act.
    Defects in American procedures led to the heinous events of 
September 11. Osama bin Laden is not a brilliant man. He is an 
average man who took advantage of the weaknesses in our airline 
security and immigration laws. The Enhanced Border Security Act 
is an important and necessary bill that addresses the failures 
of our current policies. The members of the House of 
Representatives have already passed the bill and the Senate 
must do the same. Our borders remain as porous as they were 
before September 11 without immediate action on this bill.
    Families of September 11 supports the provisions of this 
bill as written. We support the development of an interoperable 
law enforcement and intelligence data system. In today's age of 
advanced technology, it is unacceptable that there is not yet a 
system with the capacity to share information amongst 
government agencies. No better example for the immediate need 
of improved communication can be offered than that of the fact 
that six months after the heinous attack on America, the INS 
approved two of the hijackers for flight school posthumously.
    We also support all provisions of the legislation which 
would decrease the probability of a dangerous individual 
gaining access or securing residence in our country. The 
requirement for the use of only machine-readable tamper 
resistant visas and travel and entry documents that use 
standard biometric identifiers, the mandate that all vessels be 
obligated to submit pre-arrival manifests, and the restriction 
on aliens from countries that are state sponsors of 
international terrorism are all important and necessary 
corrective measures this government can no longer delay 
enacting.
    Finally, Families of September 11 advocates for the 
establishment of a foreign student tracking system. Two of the 
hijackers entered this country under student visas and never 
reported for classes. To date, there continues to be no 
enforced regulations that track foreign students or require the 
reporting of any foreign person with a student visa that does 
not report for classes as admitted. This bill remedies this lax 
oversight and requires adherence to direct reporting.
    In 1941, Franklin Delano Roosevelt spoke of a world founded 
upon four essential freedoms, the fourth being freedom from 
fear. We in these United States of America no longer enjoy that 
freedom. Our border policies and immigration laws are fatally 
flawed and these weaknesses contributed to the failure to 
prevent the attacks of September 11. Thousands of our loved 
ones were taken from us senselessly that day. Most of their 
bodies have not been recovered. They have not been brought 
home. Ten thousand children cry each night, missing a parent. 
Seven months have passed since the murder of more than 3,000 
people on American soil and our current border security and 
immigration policies have not changed and leave our doors open 
for another attack.
    The Enhanced Border Security and Visa Entry Reform Act 
would strengthen our borders and establish more effective 
procedures for immigration screening and control. It is not 
fiscally burdensome or inappropriate. As written, it does not 
duly impede anyone's civil liberties, nor is it violative of 
due process. The delay in passing this legislation is 
unconscionable.
    As members of the Senate, you have a responsibility to 
secure the safety of those you have been elected to represent. 
You must pass the Enhanced Border Security and Visa Entry 
Reform Act and you must pass it now. Otherwise, we all stand to 
lose another important freedom, and that is the freedom my 
husband was denied, the freedom to live. Thank you.
    Chairman Kennedy. Thank you very much for an excellent 
statement summarizing the bill eloquently and the important 
reasons for those provisions. It is very helpful to have the 
support of your organization. We have pointed that out to our 
colleagues and all of our colleagues have been very mindful of 
that and it has made a big difference. We want you to know 
that.
    Ms. Salamone. Thank you.
    Chairman Kennedy. How are your three children?
    Ms. Salamone. They are okay. They had a rough time after 
the holidays and through the end of the winter, but they seem 
like they are getting back on their feet again.
    Chairman Kennedy. Good for you.
    [The prepared statement of Ms. Salamone follows:]

 Statement of MaryEllen Salamone, Director, Families of September 11, 
                        Inc., North Caldwell, NJ

    Thank you Mr. Chairman and members of the Committee for granting me 
this opportunity to testify on this most critical issue.
    Between July and September 2001, nineteen terrorists gained access 
to our country, unrecognized, and continued their planning and 
preparations to carry out an attack of epic proportions against the 
people of the United States. On September 11, 2001, they passed through 
the airline security at three major airports, hijacked four commercial 
jets in flight and crashed the planes into the towers of the World 
Trade Center, the Pentagon and rural Pennsylvania. They murdered, in 
cold blood, thousands of innocent people. They maimed the security and 
innocence of more than ten thousand children left without one or both 
parents. They destroyed the trust Americans had in the safety of their 
country. On September 11, 2001, the terrorists won.
    My name is MaryEllen Salamone. I am the wife of John Salamone, a 
broker in Preferred Stock for Cantor Fitzgerald, who was killed in the 
apocalyptic attacks on September 11. I am a widow, a newly single 
mother of three small beautiful children, and a director of the 
organization Families of September 11. We are an organization comprised 
of nearly 1,000 family members of people killed or injured in the 
attacks. Our mission is to promote the interest of families of victims 
of September 11 and to support public policies that improve the 
prevention of and the response to terrorism. Our goal is to assist in 
any and all efforts to prevent any other family from suffering the 
devastating loss we have incurred. We are committed to effect change so 
that the lives taken from our loved ones will not have been lost in 
vain. Families of September 11 supports without reservation the 
Enhanced Border Security and Visa Entry Reform Act.
    Defects in American procedures allowed the heinous events of 
September 11 to occur. Osama Bin Laden is not a brilliant man who 
succeeded in toppling the homeland defense of the United States of 
America. He is a average man who took advantage of the weaknesses in 
our policies governing airline security and our immigration laws. The 
Enhanced Border Security and Visa Entry Reform Act is an important and 
necessary bill that must be passed now. It addresses the failures of 
our immigration laws and visa procedures, and without it, we remain 
fearfully vulnerable.
    As an example, on March 11, the six month anniversary of the 
attacks, Mohammed Atta, the purported ringleader of the team of 
hijackers, and his cousin, the two men who piloted the planes into the 
Twin Towers of the World Trade Center, the two men responsible for the 
murders of more than 2500 people, were posthumously granted permission 
to attend flight school by the United States Immigration and 
Naturalization Service. Even more horrifying than this is the 
realization that this is just one glaring and high profile example of 
dangerous individuals being able to enter our country legally. The 
honorable Members of the House of Representatives have already passed 
this bill, and the Senate must do the same. Our borders remain as 
porous as they were before September 11 without immediate action.
    Families of September 11 supports all provisions of this bill as 
written. We particularly appreciate the opportunity to recognize key 
provisions of this legislation which we feel most effectively will 
address the flaws in our present system.
     Interagency Information Sharing--This bill requires the 
use of advanced and available technology to correct flawed practices 
and appropriates funding for their development. Despite the advantages 
the computer age offers, independent agencies of the government are not 
equipped with the capacity to share information on foreign individuals 
residing in our country, or seeking to gain entry through our borders. 
Individuals could be on a CIA Terrorist Watch List while gaining lawful 
access to the United States. The Enhanced Border Security and Visa 
Entry Reform Act prevents the perpetuation of this inexcusable 
deficiency by requiring the development of interoperable law 
enforcement and intelligence data systems with name matching capacities 
and training. With all the technology available today, it is 
incomprehensible that a system such as this does not already exist.
     Biometric Identifiers--This legislation further relies on 
the advancements of science by mandating the use of biometrics. 
Pertinent sections of the bill expressly provide for the use of only 
machine readable, tamper resistant visas and travel and entry documents 
that use standard biometric identifiers. This decreases the likelihood 
that passports or other documents could be shared or counterfeited. The 
bill also demands that as a condition to continue in the visa waiver 
program, foreign countries must issue its nationals machine readable 
passports with biometric identifiers that comply with standards 
acceptable within our system.
     Foreign Student Monitoring Program--Two of the hijackers 
entered this country under student visas and never reported for 
classes. To date, there continues to be no enforced regulations that 
track foreign students or require the reporting of any foreign person 
with a student visa that does not report for classes as admitted. The 
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 
provided for the development of a tracking system and required it to be 
fully operational within 18 months of the enactment of that 
legislation. Yet on September 11, 2001, this government had no means to 
identify or locate foreign individuals on student visas remaining in 
this country illegally. The provisions required in the Illegal 
Immigrant Act of 1996 were never enforced; a tracking database was 
never implemented. the Enhanced Border Security Act remedies the lax 
oversight of the foreign student tracking system and requires adherence 
to direct reporting requirements within 120 days of the bill's 
enactment into law.
     Passenger Manifests--Most of the hijackers on September 11 
hailed from Saudi Arabia, which, by our own laws, is not required to 
submit passenger manifests of vessels entering our country. A system 
most equipped to prevent the passage of dangerous entrants into our 
country is one which would require an individual to pass through a 
series of security checkpoints. The Enhanced Border Security Act 
requires the submission of passenger manifests of all vessels entering 
our ports, providing an additional opportunity to identify potentially 
dangerous terrorists.
     Restriction of Visas to Nonimmigrants From Countries 
Sponsoring Terrorism--As a necessary measure to strengthen homeland 
security during this dangerous time in history, the enhanced Border 
Security Bill also prohibits the issuance of entry documents to any 
alien from a country that is a state sponsor of international 
terrorism, unless the Secretary of State determines that the person is 
not a threat.
    In 1941, Franklin Delano Roosevelt spoke of a world founded upon 
four essential freedoms, the fourth being freedom from fear. We, in the 
United States of America, no longer enjoy that freedom; we can no 
longer claim it as our own. Our border policies and immigration laws 
are fatally flawed. These weaknesses contributed to our failure to 
prevent the attacks of September 11. As a result, thousands of our 
loved ones were taken from us senselessly. Over ten thousand children 
cry for the loss of a parent as they close their eyes to sleep. Seven 
months have passed since the murder of three thousand people on 
American soil, and our border security and immigration policies leave 
us waiting for another attack.
    The Enhanced Border Security and Visa Entry Reform Act would 
strengthen our borders, and establish more effective procedures for 
immigration screening and control. It requires the use of currently 
available technology and coordinates interagency cooperation. It is not 
fiscally burdensome or inappropriate. It does not unduly impede 
anyone's civil liberties, nor is it violative of due process. The 
events of September 11 and the current state of international affairs 
clearly illustrate that this is a time to secure safety, not a time to 
allow loopholes for terrorist activity. This legislation must be passed 
without amendment. As written, it secures our safety; if amended, it 
compromises it. The delay in passing this legislation is 
unconscionable. As Members of Congress, you have a responsibility to 
secure the safety of those you have been elected to represent. You must 
pass the enhanced Border Security and Visa Entry Reform Act and you 
must pass it now. Otherwise we stand to lose another important freedom, 
the freedom to live.

    Chairman Kennedy. We have been joined by one of our prime 
leaders on this, Senator Feinstein, who has been so involved in 
shaping and helping to drive this legislation. If she would 
want to say a word at this time before we hear from our other 
witness, we would welcome it.

  STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE 
                      STATE OF CALIFORNIA

    Senator Feinstein. Thank you, Mr. Chairman. Just a couple 
of words.
    First of all, thank you so much for having the courage to 
come and be here and spur us on. I think all of us agree with 
everything you said. I only wish we were able to move earlier 
to do what we should have done after the 1993 attack. That 
really, I think, was our warning. We have to move to change 
what has been a paper-driven agency into an action-driven 
agency.
    Senator Kyl and I have worked on this bill, as you probably 
know, Senators Kennedy and Brownback on another half of the 
bill, and then we put the two halves together to a whole. Some 
feel that, I think, action should not be taken until after the 
agency is reorganized. I do not think any one of us share that 
view. I happen to believe it is probably the most significant 
piece of legislation we can pass to secure our borders.
    Ms. Salamone. I agree.
    Senator Feinstein. I think in the hearings that Senator Kyl 
and I held, when we questioned the State Department, and 
particularly, I think Senator Kyl will remember, the head of 
the visa section, I think it was, and she said, well, they had 
no intelligence to prevent the granting of these visas to the 
hijackers. So a part of this bill remedies that by providing an 
interoperable database between these agencies.
    Then there was the instance that a couple of these 
hijackers actually came in on visas that had expired and nobody 
caught it. And then there was the instance that six months 
after 9/11, visa renewals were sent out, which means to me that 
nobody bothered, even after 9/11, to check the database to see 
if there was anything suspicious in the database before they 
sent it out to the contractor to be mailed out.
    Coming from California, where there has been massive fraud 
in the student visa program, particularly in San Diego, where 
people are actually doing time because they falsified a 
student's presence in school, they falsified grades, so we have 
taken, I think, the best that we can take to really change this 
agency with a mandate. Now, it is going to cost money, but it 
is probably the best expenditure of money we can do at this 
point in time.
    So I just want to say thank you for being here this 
morning.
    Ms. Salamone. Thank you for having me.
    Senator Feinstein. I know all of us wish you well and it 
will be a good life for you, I think.
    Ms. Salamone. Not right now, but one day, in time. Thank 
you.
    Senator Feinstein. Thanks, Mr. Chairman, very much. I 
appreciate it.
    Chairman Kennedy. Thank you very much.
    We will hear from Kathleen Walker, an attorney in El Paso, 
Texas, with the law firm Kemp Smith. She is an expert on border 
affairs. Her practice primarily involves the areas of 
immigration, customs, and international transaction. She is 
Past President of the American Immigration Lawyers Association, 
has served on the AILA's National Board of Governors since 
1998. She served as a board member of the Board of Trade 
Alliance on the Texas Border Infrastructure Coalition. She was 
appointed to the State of Texas Comptroller of Public Accounts 
Border Advisory Group by the Comptroller. She is currently 
involved with the Immigration Subcommittee of the U.S. Chamber 
of Commerce.
    Is there anything you have not done on immigration kinds of 
matters? You have a very impressive background and experience 
and we thank you so much for being here. We are looking forward 
to your testimony.

  STATEMENT OF KATHLEEN CAMPBELL WALKER, AMERICAN IMMIGRATION 
                LAWYERS ASSOCIATION, EL PASO, TX

    Ms. Walker. Thank you, Mr. Chairman and very distinguished 
members of this subcommittee. It is indeed an honor and a 
privilege to have the opportunity to say a few words on this 
important bill.
    I am here representing the American Immigration Lawyers 
Association, a national bar association comprised of almost 
8,000 attorneys engaged in the practice of immigration law, 
representing immigrants' rights and trying to deal with 
figuring out how we apply our complex immigration laws. As we 
all know, it is more than a Rubik's cube to be able to figure 
out how they interrelate.
    This bill recognizes that fact. This bill notices that we 
do not have just a clear ability to just address one point. 
They are interlocking issues dealing with border security. That 
is what is so pivotal about this bill. It is a package that 
needs to be passed now. If we do not pass it, then we do so at 
our peril, as we have already painfully been reminded by events 
on September 11.
    We believe that swift passage is necessary because we have 
already lost seven months in the ability to go recruit and hire 
additional inspectors and investigators. That, on its own, is 
inexcusable.
    We have got only 2,000 investigators to go track people 
down right now within the INS. We strongly support thatthey be 
recognized for their efforts and be supported and fortified. But the 
same thing goes to the valuable duties that are performed by our 
inspectors. Inspectors are different than Border Patrol. We can keep on 
adding Border Patrol on our borders, but it does not engage in the 
issue of being able to ascertain whether or not someone is a bad guy or 
a good guy when they come to our ports of entry, and it is not that 
simple, either.
    The face of terrorism is not one that one can check a box 
on. There is a new form out that we have been asked to complete 
when we apply for visas across the world at our U.S. consulates 
where we check off background information. Is that really going 
to enable us to do anything? I hazard a guess that the answer 
is no. We have to have effective interlocking systems engaged 
and we cannot wait to proceed with them.
    In addition to that, as to the reorganization bill, it 
seems like I am beating the same drum over and over again, but 
we have got a Customs Service down there at our ports of entry. 
After 9/11, the Customs Service and the Immigration Service 
were not on the same board on reacting to the events of 9/11. 
In addition to that, we had problems in just what was happening 
in California, what was happening in Texas, Arizona, and on our 
northern border in reaction to 9/11. It is absolutely critical 
that we require coordination.
    It is critical in addition to that that we push some of the 
burden away from our ports of entry by creating something like 
the North American Perimeter Security Zone that is addressed by 
this bill. In addition to that, pre-inspection, pre-clearance, 
passenger manifests are all part of this bill that allow us to 
be more effective in interdiction.
    Do we wait? What portion of the bill do we drop? Would 
anyone hazard a guess as to any portion of this bill that they 
would remove and not try to address at this point in time? I 
believe the answer is no on the part of the American public, as 
well, I will be so bold to say. And certainly, sitting here 
next to someone representing the group that she does, I am very 
humbled and humiliated by the response of our Congressional 
bodies by not going ahead and having this bill passed by now.
    One thing that we have to keep reminding ourselves about as 
we proceed is that enforcement carries with it the 
responsibility to do so with due process, with professionalism. 
Since 9/11, the easiest thing to do at our ports of entry is to 
adopt an enforcement mentality that does not want to listen to 
anybody, that assumes everybody is going to come and do harm to 
this nation. That is not the case. Our economic prosperity 
depends on being able to facilitate trade and commerce.
    We have dealt on the border for years with this conundrum 
about how do we facilitate as well as interdict. It is not 
something that really takes a rocket scientist. I really 
believe that strongly. If we have the ability to have people 
enroll voluntarily in programs to say, I am more than happy to 
submit my fingerprints to an FBI check so that you can 
facilitate my entry and focus your scarce resources on the 
people that you need to be concerned about, that is what makes 
sense now. That is wise use of our resources, and we have not 
in the past done that.
    Case in point, post-9/11, we have something called a 
dedicated commuter lane in my neck of the woods in El Paso, 
where I have gone through myself a ten-print FBI check. I have 
had a seven-point inspection of my vehicle. Post-9/11, the 
response, knee-jerk, was even in those lanes, they were going 
ahead and using the exact same procedures utilized for everyone 
else. It makes no sense. This bill directs the resources to be 
focused, utilized wisely.
    I could not support the provisions of it more. From the 
consular corps perspective, they are the first line of defense. 
The second line of defense is INS. But look what you have done 
within this bill. You are creating yet a third line that can be 
utilized by garnering the use of our trading partners in the 
Canadian and Mexican border areas to help us in this process. 
What could be more logical and rational? Is this a desperate 
measure born from desperate times?
    As Senator Brownback so aptly stated earlier, it obviously 
is not. It is a studied review of what it is going to take to 
address the war on terrorism that we are engaged in. That is 
what this is. It is a war. Let us go ahead and give people the 
tools that will enable them to address it effectively and make 
this the pivotal first downpayment on this action. Thank you.
    Chairman Kennedy. Thank you very much, Ms. Walker. Someone 
of your background and knowledge and study and practical 
experience, to have your strong support of the provisions is, I 
think, very encouraging, and hopefully our colleagues will feel 
very reassured because you bring a wealth of experience.
    [The prepared statement of Ms. Walker follows:]

  Testimony of Kathleen Campbell Walker, American Immigration Lawyers 
                              Association

    Mr. Chairman and Distinguished Members of the Subcommittee:
    My name is Kathleen Campbell Walker. I am honored to be testifying 
today before you on behalf of the American Immigration Lawyers 
Association (AILA). AILA is the national bar association of nearly 
8,000 attorneys and law professors, who represent the entire spectrum 
of individuals subject to our immigration laws. I have been privileged 
to chair AILA's State Department Liaison Committee for the past three 
years and am a member of that organization's Border Issues Committee. I 
also practice immigration law in El Paso, Texas, where I have focused 
for over 16 years on border issues. In addition, I serve on the Texas 
State Comptroller's Border Advisory Council, and have served as a board 
member of the Border Trade Alliance as well as a member of the 
Executive Committee of the Texas Border Infrastructure Coalition. I 
worked for four years as President of the El Paso Foreign Trade 
Association to establish the first Dedicated Commuter Lane using Secure 
Electronic Network for Travelers' Rapid Inspection (SENTRI) technology 
in the State of Texas.
    I thus bring to the table practical and on the ground experience 
regarding the challenges of border security, and cross-border and 
cross-agency issues that I hope will be of use to the Committee as it 
works to develop laws to address effectively the complex issues raised 
by achieving effective border security without harming either our 
internationally based economy or our dedication to respecting 
individual rights preserved by the Constitution.

  INTRODUCTION: THE IMPORTANCE OF THE BORDER SECURITY AND VISA REFORM 
                BILL AND THE NEED FOR ITS SPEEDY PASSAGE

    I appreciate this opportunity to present AILA's views on the 
Enhanced Border Security and Visa Entry Reform Act. AILA applauds this 
Committee's responsive and thorough work in formulating this bill and 
strongly supports its swift passage. This bipartisan bill takes 
significant steps to improve the capability of federal agencies engaged 
in applying our immigration laws to determine who should or should not 
be admitted to the U.S., and to ensure that our nation's immigration 
policies are in line with our common goal of effectively deterring 
terrorism. On behalf of AILA, I commend Senators Kennedy, Brownback, 
Kyl, and Feinstein for their leadership in developing this important 
measure. The Enhanced Border and Visa Reform Act is central to this 
nations's effort to implement the necessary steps that will enhance and 
increase the layers of security both at and away from our borders.
    This nation does not have the luxury of waiting to enhance the 
protection of the precious jewel, which is this nation. Without the 
tools provided in this bill, those who protect our borders and attempt 
to fairly implement our laws would confront the war on terrorism with 
an antiquated and poorly coordinated armory. At this critical time, we 
must give our federal agencies the tools they need to succeed in their 
task, rather than handing them their marching orders without the means 
to achieve their objectives. And we must do so without losing sight of 
our country's long and proud history of due process and respect for 
civil liberties.
    The Enhanced Border Security Bill includes real solutions to real 
problems. It also recognizes that we cannot achieve security without 
accountability. Database integration that is not combined with well-
trained inspectors, investigators, and consular officers is an 
insufficient response to our security needs. Equally important, we 
cannot expect our federal agencies to be able to look into the minds of 
individuals with no criminal records to find a potential terrorist. 
Terrorists do not check off the boxes on a form to indicate that they 
are, or may be, terrorists. We thus need to make sure not to pose false 
solutions to real problems and thereby lull ourselves into a degree of 
security we have not achieved.
    The border security bill is premised on two facts. First, enhancing 
our intelligence capacity is key to our increased security. The face of 
terrorism is not tied to one nationality, religion, or ethnic group. 
The horrific terrorist action in Oklahoma is an ever-present reminder 
to us of that painful fact. Any changes in immigration policies or 
procedures must allow our federal agencies timely fact. Any changes in 
immigration policies or procedures must allow our federal agencies 
timely access to valuable and reliable intelligence. Second, our most 
effective security strategy is to keep out those who mean to do us 
harm, while admitting those who come to build America and make our 
country stronger. Immigration is not a synonym for terrorism. The 
problem here is terrorists, not immigrants. We need to isolate 
terrorism, not America.
    The Enhanced Border Security bill's provisions reflect two 
important understandings about our country and our needs--namely, that 
we are a nation of immigrants, and that we must undertake any reforms 
in ways that do not destroy our economy and commerce. The U.S. is an 
integral part of the world economy, with global business, tourism, and 
migration serving a pivotal role in our economic prosperity. As we take 
important and needed steps to enhance our security, we must seek to 
ensure the efficient flow of people and goods across our borders. If we 
do not, we risk both chaos at our borders and the destruction of our 
economy, and along with it, the ability to pay for our national 
security. ``Fortress America'' is an undesirable and impractical 
solution that repudiates our history and our economic and social needs 
as well as the current reality of our global economy.
    Nearly 500 million entries occur annually by people who come to the 
U.S. as tourists, business people, students, or to visit with their 
families. Less than one million annually settle here as immigrants. 
Living in a border community underscores on a daily basis the 
imperatives this flow creates and the importance of this bill, and the 
necessity of balancing our security needs with the fact that we are a 
nation of immigrants and that we must continue to facilitate the free 
flow of people and goods.
    After September 11, border communities experienced first hand the 
need for federal agencies to work together. These communities dealt 
with repeated inspections of same-day crossers without any modification 
of procedures to reflect the waste of resources that occurred whenever 
the same individuals were repeatedly put through the same enhanced 
inspection processes. Pedestrians and passenger vehicles waited more 
than 5 to 6 hours to enter the United States, a delay that overtaxed 
our border agencies and reduced the effectiveness of our inspectors. 
While patriotism and a concern for our country's security led these 
communities to tolerate these disruptions, many asked if these 
procedures really were making us safer. I fear that the answer is 
``no.'' In the meantime, at a time of economic downturn, border 
communities faced further suffering as a result of our economic 
interdependence on our neighboring countries. From the perspective of 
this nation's border communities, the Border Security bill presents a 
reasoned and timely approach to this challenge of balancing our 
security with our economic realities.
    In summary, AILA urges the bill's swift passage because it reflects 
the following:
     We must enhance our security as a nation of immigrants. 
Our immigrant heritage remains central to our national identity and 
helps explain our nation's vitality and success.
     We must enhance our security in ways that will not destroy 
our commerce or economy or inhibit the efficient and secure flow of 
people and commerce at our borders and ports of entry. Our economic 
security is essential to our national well-being and contributes to our 
ability to enhance our national security while improving our nation's 
global competitiveness.
     The key to enhancing our national security is increased 
intelligence provided on a timely basis to the appropriate federal 
agencies.
     Our best protection is to focus our security resources 
where they are most needed. We must be able to identify and separate 
low risk travelers and facilitate their entry. Such measures are more 
effective and more easily implemented than measures that focus on 
persons after they enter the U.S. In all cases, we need to make sure 
that we use our resources in the most effective way possible to keep 
out those who seek to do us harm, not those seeking to come to our 
country for the reasons that people have always come here, including 
escaping persecution, desiring to be reunited with their families, 
working legally in the U.S., investing or conducting business in the 
U.S., or visiting this country as tourists.
    As Congress addresses the need to enhance our national security and 
the many important as well as complex issues raised in this discussion, 
it is important to recognize that:
     The Senate Needs To Pass the Enhanced Border Security and 
Visa Reform Bill as a Package: All the various parts of the border 
security measure are needed to enhance our security. The different 
provisions in the bill fit together to create an effective border 
security and visa security-related reform initiative. Selectively 
passing only some of this bill's many important provisions will leave 
dangerous gaps that threaten our security and decrease the 
effectiveness of our federal agencies. The bill's provisions reflect 
the reality of the federal synergies inherent in our current 
immigration system, and recognize that enhancing our security will 
require the combined efforts of many federal agencies and the support 
of Congress and the Administration. The bill also recognizes that our 
security is further enhanced by defined cooperative efforts with our 
Canadian and Mexican neighbors. We cannot achieve security-related 
goals in an international vacuum.
     The Bill Needs To Be Quickly Passed: It is vitally 
important that this measure be passed and signed into law with all due 
haste. Delay threatens our safety and well-being and flies in the face 
of the gravity of the situation created by the incomprehensible events 
of September 11. The bill's provisions include changes in the policies, 
practices, and procedures of several federal agencies including, but 
not limited to, the Immigration and Naturalization Service (INS). While 
reorganization of that agency is a top congressional priority, we 
cannot afford to wait until that task is undertaken to implement the 
necessary changes advanced by the border security bill. We need to move 
forward now to implement the important reforms included in the bill. 
How can we say ``wait'' to those lost on September 11 or to their 
surviving families and friends?
    Our urgent need to move forward on this bill is underlined by the 
fact that our border security concerns go beyond the INS and its 
reorganization. Intra-agency coordination, which is a primary goal of 
the bill, needs to be addressed immediately, as vividly illustrated in 
Inspector General Fine's February 28, 2002 testimony on the Visa Waiver 
Program. In his testimony before the Subcommittee on Immigration and 
Claims of the House Judiciary Committee, Inspector Fine notes that in 
July 2000, the INS submitted 22 projects to the U.S. Customs Service 
requesting modifications to the Interagency Border Inspection System 
(IBIS) which the Customs Service manages. One of these changes mandated 
via IBIS was the entry of an alien's passport number upon primary 
inspection in order to enhance the interdiction of fraudulent passport 
users. The Customs Service would not pay for the revisions from its own 
budget, and INS did not receive funding for this effort until FY 2002. 
Perhaps timely funding would have been appropriated if there had been 
more intra-agency coordination.
     The Administration and Congress Must Support Adequate 
Funding for the Bill's Initiatives: Given the bill's very ambitious 
deadlines, the Administration and Congress need to step up to the plate 
and provide the federal agencies with the staffing and funding levels 
necessary to implement this measure's provisions. The Bush 
Administrations' proposed FY 2003 budget is a good first step, but we 
must be prepared to fund this effort generously, with Congress and the 
Administration reviewing how the agencies use these funds. The 
functions targeted in this bill have been neglected for decades, and it 
will take much patience, time, congressional attention, and sufficient 
appropriations to achieve the goals of this legislation.
     The Administration and Congress Need To Be Prepared To 
Respond to Potential Problems With Mandated Deadlines: Some of the 
bill's provisions, particularly several of the mandated implementation 
deadlines, may impact negatively on cross border commerce and travel. 
Certainly, the goal of exit and entry control at our land ports needs 
to be carefully reviewed. The investment in infrastructure alone could 
prove to be significant (for example, certain land ports will have to 
add lanes for exit control inspection). And these costs do not take 
into account the necessary staffing increases. The Administration and 
Congress need to be open to effective alternatives, alert to the 
consequences of short time frames, and willing to modify these 
deadlines as merited, and, in some cases provide alternatives and/or 
appropriate expedited funding.
     Federal Agencies Need To Step Up to the Plate: The federal 
agencies, especially the INS, the Department of State (DOS), and the 
U.S. Customs Service, play critical integrated roles in enhancing our 
nation's security. With sufficient funding, the provisions in the 
Border Security Bill will give federal agencies the wherewithal to 
achieve their goals. For their part, the agencies need to be up to the 
task of implementing major reforms that address our security needs and, 
at the same time, recognize the continued importance of immigration to 
our nation: people will continue to seek entrance to the U.S. to visit, 
reunite with their families, contribute to the American economy, 
andseek safe haven. The efficient flow of cross-border and 
international commerce must continue to fuel our economic recovery and 
growth. We also cannot tolerate inter-agency or intra-agency 
disagreements that threaten to derail the goals of the bill, for we do 
so at our collective peril.
    The Enhanced Border Security and Visa Reform Bill highlights the 
urgent need for the following:
     A U.S./Mexico Immigration Agreement To Help the U.S. 
Address National Security Concerns: These discussions offer the United 
States the opportunity to align our immigration policies with our 
national security needs, market forces, and family reunification goals. 
Bilateral cooperation in enforcement efforts regarding illegal 
immigration, an alternative for hardworking immigrants already here 
filing legitimate labor needs to earn legal status, a new temporary 
program for essential workers to fill identified labor needs, and more 
visas for workers and family members are initiatives that will 
contribute to our security. Because the Border Security bill creates 
the additional impetus for Mexico and the U.S. to coordinate and 
cooperate, it follows that by encouraging and facilitating legal 
immigration, both countries will be able to focus their resources on 
terrorists and people engaged in smuggling, trafficking, and other 
criminal activities.
     An Effective Reorganization of the INS and Border 
Functions: A reorganization of the INS tops the congressional agenda 
and must take place. However, as noted earlier, such restructuring must 
not delay the passage of the Border Security Act. Reforming the INS has 
dramatic implications for the border and, hence, border security. Any 
reforms of the INS must recognize that the inspections function, by its 
very essence, represents the competing missions of the INS. Inspectors 
both process thousands of applicants for entry documents while 
simultaneously trying to identify and interdict criminals or potential 
criminals. The enforcement and adjudication aspects of inspections need 
to be closely coordinated, as do INS and U.S. Customs, the two primary 
agencies staffing our ports of entry.
    Such inter- and intra-agency coordination will be harmed by any 
proposal that would split off INS inspections and other aspects of INS 
enforcement from the rest of the agency, as has been contemplated by 
reports about a proposed border security agency. That type of splitting 
merely adds another cook in an already over-crowded kitchen. Rather, 
some form of unified port management may provide the needed solution, 
and merits further investigation. Unified port management does not 
require the reinvention of the proverbial wheel by forming a new single 
federal agency. Instead, port efficiencies are achieved through 
community and agency involvement to create a port authority reporting 
to a governing body comprised of agency and Administration members. 
Such a body would clearly and decisively react to port of entry 
security, staffing, infrastructure, and policy needs. All of these 
needs must be coordinated to achieve the goal of enhanced border, and 
hence, national, security.

  THE ENHANCED BORDER SECURITY AND VISA REFORM BILL INCLUDES NEW AND 
                     NECESSARY DETERRENCE MEASURES

    Among other provisions, the Enhanced Border Security bill includes 
increased funding for the DOS and INS, increased access to lookout 
lists, reforms at our consulates, the use of new technologies, direct 
government funding of these technologies, more pre-inspections abroad, 
a study of the creation of a North American Perimeter Safety Zone, 
reforms to the foreign student program, and a workable entry-exit 
control system. These and other provisions in this measure will help 
enhance and create layers of protection that stand between us and any 
potential terrorist adversaries from abroad. The bill's provisions 
interrelate with each other to create a more effective security net and 
the foundation necessary to enhance our security, and include the 
following.

1. Increased Staffing and Funding for DOS and INS and Interagency Data 
        Sharing
    The Border Security bill authorizes increased personnel, technology 
funding and data access for the DOS and INS, and also provides 
additional training for INS and DOS staff. These provisions provide an 
important first step. Clearly, both agencies need increased staffing 
levels and funding to appropriately handle their heightened security-
related responsibilities post September 11. Staffing shortages already 
were prevalent in INS inspections and investigations prior to September 
11. In addition, the consular corps for years has been overtaxed and 
under-resourced.
    Inadequate funding has left these agencies with technologically 
obsolete and incompatible computer systems. Some offices, especially 
those overseas, do not have adequate computer capacity, much less 
sufficient access to Internet resources. In order to effectively fight 
terrorism by enhancing our intelligence capabilities and improving our 
border security, both the DOS and the INS need this increased funding 
to upgrade their technological infrastructures. However, Congress' 
active oversight will be necessary to ensure that funding is used 
wisely and our goals are achieved.
    The Bush Administration's FY 2003 budget includes $11 billion for 
border security. This funding is a critically important down payment 
and a significant first step in providing the money needed for long-
overdue changes. However, the reforms this measure contemplates will 
demand large, multi-year commitments from Congress and the 
Administration. It is necessary and appropriate that such funding come 
from direct federal appropriations. Technological capacities at our 
federal agencies cannot be fully supported through user fees.

2. The Use of New Technologies
    The Border Security Bill recognizes that in order to gather and 
make accessible a great range of information about individuals and 
their identities, it is critical to make use of existing and emerging 
technologies to achieve the most reliable means of verifying identity. 
The bill seeks to upgrade the technological capacities of the 
government so that federal agency personnel are better trained and 
equipped to use new technologies to effectively screen out potential 
terrorists. The bill also includes provisions for the issuance of 
machine-readable, tamper-resistant, travel documents with biometric 
identifiers that would promote the use of secure passports and 
visasresistant to counterfeiting. The federal government needs to fund 
the development and use of these new technologies and ensure that the 
various federal agencies coordinate compatible efforts in this area. 
Given the importance and complexity of these efforts relative to the 
short time frames provided in the bill, Congress needs to be willing to 
modify these deadlines as needed.
    It also is important to recognize that as we attempt to 
strategically balance our security concerns with our economic needs, we 
need to test these new technologies and staff them appropriately. And 
the need is acute. After September 11, people in the border pedestrian 
lines waited 4 to 6 hours to enter the U.S., due to the mandate that 
all applicants for entry be subjected to an Interagency Border 
Inspection System (IBIS) security check. Because of a lack of scanners, 
other equipment, and staffing, the ports were backlogged and incapable 
of initiating any inspection efficiencies.

3. Interoperable Data System, Lookout Lists, and Protections
    The Enhanced Security Bill includes a provision requiring the 
development and implementation of an interoperable data system to 
provide current and immediate access to information contained in the 
databases of federal law enforcement agencies and the intelligence 
community that is relevant to visa issuance determinations and 
determinations of an alien's admissibility or removability. U.S. 
federal agencies, as well as international law enforcement officials, 
need real time, direct access to certain information from the different 
agencies' databases. The ``lookout lists'' created by these databases 
include the names of people who should not be admitted to the U.S. or 
who should be pulled aside for questioning should the authorities come 
into contact with them. Increased funding would allow the agencies to 
build up their technological capacities so that DOS and INS could 
directly access the FBI's and other agencies' databases. Direct and 
timely access to this data would enable law enforcement agencies to act 
immediately to identify those high-risk individuals who seek to enter 
the U.S. or receive other immigration benefits. Names and relevant 
identifying information could assist agencies in interdicting 
individuals.
    The bill also includes important safeguards against potential abuse 
of this data by: limiting the redissemination of information; ensuring 
that such information is used solely to determine whether to issue a 
visa or to determine admissibility or removability; ensuring the 
accuracy, security, and confidentiality of information; protecting any 
privacy rights of individuals who are the subject of such information; 
providing for the timely removal and destruction of obsolete or 
inaccurate information; and doing so in a manner that protects the 
sources and methods used to acquire intelligence information. The bill 
also addresses the need for algorithms to account for various name and 
language transliterations.
    Such safeguards will become even more necessary as the lists 
increase in size and unfamiliar names from various regions of the world 
may be incorrectly keyed in to a database. We must make every effort to 
ensure the accuracy and timeliness of the names on these lists so that 
the right, not wrong, individual is targeted.

4. Needed Reforms at U.S. Consulates
    The Enhanced Security Bill recognizes that our intelligence 
gathering can be further improved by increasing funding for the DOS, 
improving training for consular officers, reforming the Visa Waiver 
Program, tracking stolen passports, establishing a Terrorist Lookout 
Committee, restricting visa issuance procedures for those from 
designated states sponsoring terrorism, and enhancing the access of the 
DOS to information relevant to screening visa applicants who pose a 
potential threat to the safety and security of the U.S. Consular staff 
cannot be expected to interdict potential terrorists without timely 
access to relevant intelligence and agency database information, access 
to the Internet, and relevant training. In addition, to properly 
address security concerns, DOS needs additional consular staff as well 
as the attendant support staff and facilities.
    Given the importance of this work, AILA would support upgrading the 
status of the consular officer who interviews visa applicants to 
determine visa eligibility and assess potential fraud allegations. 
Currently, more junior personnel with less hands-on visa application 
interviewing experience perform this function. AILA supports the 
placement and rotation, if necessary, at consular posts of a core of 
highly trained and specialized civil service visa processing 
specialists, fully trained in the complicated area of U.S. immigration 
law, who would be required to take a certain number of continuing 
consular education courses to be considered for promotion or pay 
increases.
    Furthermore, decisions on visa issuance need to be reviewable. In 
these times of heightened scrutiny when it is much easier than ever to 
just say, ``no,'' such review is vital to ensure the integrity of the 
visa application process. Certainly, when comparing the level of 
accountability to which INS is held versus the DOS, the DOS is 
insulated from core precepts of administrative and judicial review to 
which INS is subject. AILA members know that many INS headquarters 
policies or regulations have been enhanced and improved through our 
judicial process, and in many cases have been strengthened through 
judicial scrutiny. We believe that such a review process is necessary 
so that DOS consular decisions mirror the checks and balances that are 
central to our democracy and our judicial system. Along with an avenue 
for review of the denial, we recommend providing any visa applicant or 
applicant for entry who is denied a visa or entry with the reasons for 
the denial. In those cases where the adverse decision is affirmed, a 
visa applicant should at least be provided with a means of appeal to 
the U.S. District Court for the District of Columbia.
    In addition, consular authority to deny the presence of legal 
counsel at consular interviews should be rescinded since such authority 
enhances the ability of certain consular officers (certainly not all) 
not well-versed in the law or unwilling to provide a modicum of due 
process to deny applications not based on fact and/or law.

5. North American Perimeter Safety Zone
    The Enhanced Border Security Bill calls for greater cooperation 
between the U.S., Mexico, and Canada through the study of the 
feasibility of creating a North American National Security Program. 
This program would facilitate the creation and implementation of a 
North Americanperimeter security zone to increase the collective 
security of all three nations. Such a North American perimeter would 
bolster security through law enforcement coordination, intelligence 
sharing, and better joint use of enforcement resources. Such efforts 
would reduce the chance that someone wishing to do harm to the U.S. 
would travel to one of our neighboring countries and then cross by land 
into the U.S.
    Any cooperation among the three governments in immigration 
enforcement should include a plan to ensure that asylum seekers have 
meaningful access to protection. While Mexico has recently acceded to 
the refugee convention, access to asylum remains problematic, 
particularly for migrants intercepted at Mexico's southern border. On 
the other hand, Canada should not be pressured into diminishing 
protections for refugees. All countries in the region can and should 
strengthen security measures. None should be required, however, to 
lower their protections for refugees to the ``lowest common 
denominator.''
    As North American security cooperation also addresses the issues of 
smuggling and trafficking, the European experience is particularly 
relevant regarding protection for asylum seekers. The United Nations 
High Commissioner for Refugees (UNHCR) commissioned a report that 
concluded that the majority of asylum seekers arriving in the European 
Union have been smuggled or trafficked. The report also states that in 
the European Union, ``the effects of blanket enforcement measures, such 
as common visa policies, readmission treaties, carrier sanctions, and 
airline liaison officers (preinspection personnel) act to deny refugees 
the possibility of illegal exit from the regions of their 
persecution.'' The report recommends that European nations review their 
migration and asylum policies to open other channels to people fleeing 
persecution in their native countries. This recommendation includes 
incorporating the right to seek asylum and the responsibility of non-
refoulement into anti-trafficking and anti-smuggling policy, 
recognizing that trafficking and smuggling are both ``inherently 
abusive'' and that both trafficked and smuggled persons can be 
refugees, thus improving reception conditions, and increasing family 
reunification.

6. Preinspection and Preclearance
    As part of the study of the feasibility of a North American 
Perimeter National Security Program, the bill provides for a study of 
preinspection and preclearance programs. U.S. preinspection programs 
currently are in effect in only five countries: Canada, Ireland, 
Bermuda, the Bahamas, and Aruba. In these locations, passengers are in 
effect ``preinspected'' for admission to the U.S. before ever boarding 
a plane--passports are checked and names are run against the applicable 
lookout lists. This preinspection process allows more time for 
inspection and increases the likelihood of a more thorough check. It 
also would move our system from one that focuses on determining a 
person's eligibility for admission into the U.S. as a port of entry to 
one that focuses on determining that person's eligibility at the point 
of origination. This process also would decrease the volume of 
applications for entry at our air ports of entry. (The land ports of 
entry would receive less of a realized benefit from this procedure, but 
the preclearance program described below available in a frequent 
traveler program would enhance efficiency and security at our land 
ports of entry.)
    INS and DOS will need to jointly recommend where such additional 
preinspection facilities should be located, as it would be impractical 
to undertake this procedure at every airport in the world. It also will 
be critical to clarify in advance with host countries any sovereignty 
issues that might arise when someone is to be arrested by U.S. 
officials working cooperatively with local authorities at the 
preinspection site who have the power to arrest and detain. Such 
cooperation should include assurances that suspected terrorists are not 
released because the host country authorities do not view the threat 
posed by the individual as seriously as do U.S. authorities. These 
programs also will raise numerous international law concerns in which 
the laws of the host country do not recognize certain laws and 
procedures followed under U.S. law. When a country cooperates in such 
preinspeciton programs, those inspected should benefit from expedited 
admission upon arrival to the U.S.
    The Border Security bill also contemplates creating programs that 
would enable foreign national travelers to the U.S. to submit 
voluntarily to preclearance procedures that the DOS and INS would 
establish to determine whether a traveler is admissible to the U.S. 
Such preclearance programs also would allow more time to review 
travelers' information and compare such information with information 
contained in the databases of federal law enforcement agencies and the 
intelligence community. The INS already has established precursors to 
these programs. For example, the SENTRI program, which is utilized in 
the Dedicated Commuter Lanes on the southern border, require applicants 
to undergo a ten print FBI fingerprint check and various customs and 
INS clearances as well as a seven point inspection of the car enrolled 
in the program. These programs allow the federal agencies involved 
inspections to winnow the wheat from the chaff and focus their security 
reviews on higher risk applicants for entry. In addition, the NEXUS 
program (which is similar to, but less costly than SENTRI), is moving 
forward rapidly toward implementation on the northern border. The U.S. 
Customs Service also is testing a PASS program for commercial drivers 
that requires preinspections and provides for expedited clearance of 
cargo to enrollees.
    What is critical for these programs to succeed is that they be 
integrated. Enrolled frequent travelers should be able to use their 
issued preclearance documents at any port of entry. Otherwise, we 
duplicate efforts, costs, and staffing with no improved security 
benefits. In addition, the benefits to this enrollment should extend to 
entry into Mexico and Canada to improve effective border crossings and 
entries at air and seaports.
    Congress needs to be prepared to fund such preinspection and 
preclearance programs. As with other programs to increase security and 
deterrence, the federal government's role is key because of the 
significant costs in setting up and maintaining these programs. As to 
preclearance programs, the benefits of a high volume of enrollees must 
be weighed when contemplating against pass through costs to the user. 
In this instance, it is in our national interest and will reduce 
overall costs through preventative planning to waive the fees to enroll 
in these preclearance programs.
    Finally, any preinspection/preclearance system must provide for 
mechanisms, including specially trained personnel, to assure that 
legitimate asylum seekers are afforded a meaningful opportunity to seek 
protection.

7. Passenger Manifest Lists
    The Border Security bill requires that all commercial vessels or 
aircraft coming to the U.S. from any place outside the country provide 
manifest information about each passenger, crew member, and other 
occupant of the vessel or aircraft to an immigration officer prior to 
arrival in the U.S. In addition, each vessel or aircraft departing from 
the U.S. for any destination outside the U.S. must provide manifest 
information before departure. The information that must be provided for 
each individual listed on the manifest is extensive and includes: 
complete name of the applicant, date of birth, citizenship, sex, 
passport number and country of issuance, country of residence, U.S. 
visa number, date, and place of issuance, when applicable, alien 
registration number, when applicable, U.S. address while in the U.S., 
and ``such other information the Attorney General . . . determines as 
being necessary for the identification of the persons transported and 
for the enforcement of the immigration laws and to protect safety and 
national security.'' The manifests must be transmitted electronically 
by January 1, 2003. The bill also requires the President to conduct a 
study, within two years of enactment, on the feasibility of extending 
the new manifest requirements to land carriers transporting persons to 
the U.S.
    Mandating at the time of take-off that all airlines transmit 
passengers' names to the designation airport to be checked against the 
look out list is an important security tool. Through their reservation 
systems, airlines know in advance who will be flying to the U.S. 
Transmitting the list in advance would give U.S. authorities the 
opportunity to compare the passenger list to the lookout lists, thereby 
preventing the entry of and/or apprehending those who should not be 
permitted to enter the U.S. Currently, about 75 percent of airlines 
transmit these lists. In addition, such lists would assist in the 
review of applicants for entry under the Visa Waiver Program prior to 
their departure from the point of origin, which would enhance the level 
of security related to program participants.
    AILA has concerns about the impact of the manifest requirement, if 
not efficiently implemented. The effectiveness of such a system depends 
on the INS having adequate technology and personnel to make swift and 
efficient use of the information. Preinspection and preclearance 
programs should facilitate the process for incoming travelers and 
reduce some of this burden, but appropriate staffing and procedures 
will be critical to success. In addition, if preinspections are 
conducted with meaningful safeguards to guarantee protection for asylum 
seekers, then the transmission of passenger lists should not compromise 
the safety of asylum seekers who may be en route to the U.S.
    AILA also believes that the requirement to submit manifest 
information prior to departure from the U.S. will be more problematic 
and will cause delays in departures and possible chaos at our nation's 
airports. It will be critical to exempt our frequent travelers enrolled 
in preclearance programs from this process. In addition, we must be 
prepared to develop workable alternatives that meet both security and 
transportation concerns. If we are ever to effectuate exit control, it 
will be easier to test the principle at air and seaports.

8. Entry-Exit Controls
    Congress needs to ensure adequate personnel and technological 
improvements at and between our ports of entry. The August 2001 GAO 
Report, ``INS Southwest Border Strategy: Resource and Impact Issues 
Remain After Seven Years,'' clearly identifies that security risks 
exist at both our northern and southern borders. The Border Security 
bill implements an integrated entry and exit data system included in 
the INS Data Management and Improvement Act of 2000 (Pub. L. No. 106-
215) which provided for the system first contemplated by Section 110 of 
the 1996 immigration law, the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996 (IIRAIRA) (Pub. L. No. 104-208).
    In developing this entry-exit system at points of entry into the 
U.S., it is important to recognize the implementation challenges and 
possible disruptions to our commerce likely to be caused by such a 
system. For instance, implementing Section 110 at land ports is 
extremely problematic from infrastructure, staffing, and cost 
perspectives. In fact, many of our land ports have no place to expand 
to encompass outbound inspections. Furthermore, significant numbers of 
people would be involved. More than 400 million (about 80% of all 
inspections) are done annually at our land borders. About 800,000 
border crossings are made daily between the U.S. and Mexico, and about 
260,000 cross each day between the U.S. and Canada. A June 1998 report 
from the Senate Judiciary Committee, then chaired by Senator Orrin 
Hatch (R-UT), noted the catastrophic delays that would accompany the 
implementation of a Section 110 entry-exit system at land borders. For 
example, the report cited testimony from an earlier hearing by a 
witness who estimated that ``assuming the most efficient and remarkable 
entry and exit procedures in the world that will take only 30 seconds 
per vehicle, and making the equally optimistic assumption that only 
half the vehicles have to go through the procedures, that would amount 
to an extra 3,750 minutes of additional processing time each day'' at 
the Ambassador Bridge in Detroit. The witness then pointed out that 
there are only 1,440 minutes to a day, which means that implementing a 
Section 110 entry-exit system at that land border port of entry would 
lead to a delay of more than 2\1/2\ days.
    We also must recognize the limitations of such a system if we do 
not also enhance our intelligence capacity. The Senate report also 
noted that it is highly questionable if implementing Section 110 would 
ultimately provide limited, if any, assistance in prosecuting 
individual visa overstayers, and would have nothing to do with stopping 
terrorists or traffickers. An automated entry-exit control system's 
database will in no way provide information as to which individuals 
might be engaging in terrorism or other unlawful activities. It would 
however have the potential of identifying suspicious travel patterns, 
if the individual utilized the same identity. We believe that the use 
of this system to track or locate terrorists or potential terrorists is 
not a realistic goal, and that our precious resources would be better 
spent on other aspects of this bill.

9. Reforms to the Foreign Student Program
    The Border Security bill strengthens the monitoring aspects of the 
foreign student program provisions contained in the 1996 immigration 
laws, mandates the collection of additional information related to 
students, and requires the INS to periodically review schools 
authorized to admit foreign students to ensure that the schools are 
complying with record keeping andreporting requirements. If an 
institution or program fails to comply, its authorization to accept 
foreign students may be revoked.
    Specifically, the bill requires the Attorney General, in 
consultation with the Secretary of State, to establish an electronic 
means to monitor and verify the various steps involved in admitting 
foreign students to the U.S. such as: the issuance of documentation of 
acceptance of a foreign student by an educational institution or 
exchange visitor program; the transmittal of such documentation to the 
Department of State's Bureau of Consular Affairs; visa issuance; the 
student's admission to the U.S.; the registration and enrollment of the 
student in his or her institution or program; and any other relevant 
act such as changing schools or termination of studies or program 
participation. The bill also requires schools to notify the INS if a 
student has not reported for school more than 30 days after the 
deadline for registering for classes.
    Additional data that must be collected under the bill includes: the 
student's date of entry, port of entry, date of school enrollment, date 
the student leaves school (e.g., graduates, quits), and the degree 
program or field of study. Student visa applicants also must provide 
additional information to the consular officer including their address, 
names and addresses of relatives, names of contacts in the country of 
residence who can verify information about the student visa applicant 
and previous work history, if any, including the names and addresses of 
employers.
    The Border Security bill also establishes an interim system to be 
used until the program included in the 1996 law is fully implemented. 
Under this temporary system, the State Department is prohibited from 
issuing student visas unless the agency has received electronic 
evidence of acceptance documentation from an approved academic or other 
institution and the consular officer has adequately reviewed the 
applicant's visa record. Once a visa is issued, the Secretary of State 
must transmit to the INS notice that the visa has been issued, the INS 
must notify the academic institution that the alien has been admitted 
to the U.S., and the institution must notify the INS not later than 30 
days after the class registration deadline should the alien fail to 
enroll. In addition, within 30 days of enactment, the INS must provide 
the State Department with a list of approved institutions authorized to 
receive nonimmigrants.
    Although AILA believes that foreign students are not the equivalent 
of terrorists, we support the efforts of the INS to ascertain a 
student's compliance with their terms of entry to the U.S. We do not 
support the use of a student visa to enter the U.S. to achieve a non-
education-related objective. We are concerned, however, that students 
not be subject to unmerited scrutiny in the application for visas. Our 
institutions of education are enhanced by the participation of foreign 
students and such institutions allow the U.S. to spread its message to 
other countries of the benefits of democracy and tolerance of ethnic 
and religious diversity. That message must continue to be delivered not 
only through such valuable efforts as the Peace Corps, but also through 
our educational institutions and foreign student programs.

10. Other Important Provisions in S. 1749
    The Enhanced Border Security Bill includes many other important 
provisions that merit bipartisan support. Of particular relevance to 
the southern border is this measure's extension by one year of the 
deadline for border-crossers to acquire machine-readable laser visas 
from DOS. Although, the DOS started issuing laser visas in 1998 as a 
replacement for border crossing cards issued by the INS, prior to 
September 11, DOS was requesting an extension of the October 1, 2001 
deadline for such replacements due to volume and processing delays. On 
October 1, the economic downturn caused by enhanced border inspections 
was further exacerbated by the inability of border crossing cardholders 
to enter border communities to shop. In addition, the INS gave no 
quarter to these border crossing cardholders by providing waivers for 
the laser visa requirement for such visitors.
    This treatment was applied to one of our most favored trading 
partners and to applicants who had gone through at least one prior 
document application with the U.S. government. In comparison, 
nonimmigrant applicants from Canada are visa exempt except in the E 
visa category. Some DOS officials now are stating that it should not be 
a problem if laser visa applicants, who have waited three to five 
months to get a laser visa appointment at a consulate, would have to 
wait a few more months. Border communities have responded loudly and 
clearly to this position: It will be a huge problem. Such a position 
ignores the realities of border society and economy in which each day's 
events impact on the viability of the border. Border communities are 
symbiotic. Coming from a southern border community, I can state 
unequivocally that any relief that would give Mexicans who are low 
security risks and hold old border crossing cards the ability, based on 
their prior cards, to cross into a border community and be inspected at 
land ports of entry before their laser appointments would provide an 
economic life boat to border businesses. In the interim, old border 
crossing cardholders could be mandated to undergo a security check 
prior to entry to address any security-related concerns.

               WHAT HAS BEEN ACHIEVED SINCE SEPTEMBER 11

    Since September 11, the status quo has undergone much change, with 
federal agencies (INS, Customs, Coast Guard and the other border 
agencies) coordinating and cooperating at unprecedented levels to make 
more effective the processes at the border both to protect our homeland 
and efficiently process legitimate trade and travel. In addition, our 
nation's agreements with Canada and Mexico already are helping us to 
increase the security of all three countries.
    These initial efforts underscore the importance of coordination and 
cooperation among our federal agencies in the U.S. as well as in other 
countries and reinforce the need for the Border Security bill to 
reinforce, invigorate, and expand on these preliminary efforts. Some of 
these efforts are:
     Additional Personnel at Our Ports of Entry: The INS 
detailed hundreds of inspectors and Border Patrol agents to the 
northern border and other ports of entry to enhance the inspection 
process and guard against unauthorized entries. Customs inspectors were 
sent to northern border ports of entry to make sure that they were 
staffed at all times by at least two agents. The Coast Guard sent 
additional patrols to the ports. Unfortunately, the INS and the U.S. 
Customs Service had difficulties implementing coordinated policies at 
ports of entry as to inspections issues, creating certain 
inefficiencies and agency disconnects.
     Enhanced Data Sharing by the Federal Agencies: On January 
15, 2002, the INS was able to utilize the Consular Consolidated 
Database maintained by the DOS Bureau of Consular Affairs to help 
assess admissibility of applicants for entry to the U.S. In addition, 
the Customs Service enhanced the access of the INS and DOS to the 
Advance Passenger Information System, a database that includes 
information on arriving commercial air passengers.
     Creation of the Foreign Terrorist Tracking Task Force: 
President Bush, in October 2001, created the Foreign Terrorist Tracking 
Task Force. Comprised of representatives from the FBI, INS, DOS, 
Customs Service, Secret Service, and the intelligence community, this 
task force shares information previously unavailable to the federal 
agencies and is charged with enhancing security by denying entry to 
terrorists and pursuing those already in the country.
     ``Smart Border'' Agreement With Canada: In December 2001, 
the U.S. and Canada signed the ``Smart Border Declaration,'' which 
outlines a 30-point action plan through which both countries will 
collaborate to identify and address security risks ``while efficiently 
and effectively addressing the legitimate flow of people and goods back 
and forth across the Canada-U.S. border.'' The declaration focuses on 
the secure flow of people, goods, and infrastructure, and on 
coordination and information sharing.
     ``Smart Border'' Agreement With Mexico: During his recent 
trip to Mexico, President Bush and Mexican President Fox finalized a 
22-point ``U.S.-Mexico Border Partnership Action Plan.'' This plan is a 
comprehensive attempt to reconcile post-September 11 security concerns 
with the need to keep commerce moving freely between the U.S. and its 
second largest trading partner. The ``smart border'' deal aims to 
facilitate the legitimate flow of people and commerce across our 
borders while screening out those who would threaten us. Among other 
things, the plan calls for the U.S. to pre-certify certain Mexican 
companies that would electronically seal their containers in Mexico and 
receive express processing treatment at the border. The plan also calls 
for a study of the possibility of creating express immigration lines at 
airports for people from the three NAFTA nations, and for Mexico and 
the U.S. to share information on those applying for visas to travel to 
either country.
    The two countries also are discussing: improved sharing of 
intelligence in order to thwart terrorists using Mexico to facilitate 
illegal entry into the U.S.; border crossing practices that facilitate 
and streamline the passage of legitimate people and cargo while 
identifying those that require more extensive screening; and 
intensified joint efforts to crack down on human trafficking.

                               CONCLUSION

    AILA strongly supports the speedy passage of the Enhanced Border 
Security and Visa Reform bill to allow the government agencies charged 
with addressing the critical needs of border and visa reform to be 
successful in efforts to enhance this nation's security. We must 
proceed swiftly with the entire bill, or else drastically hamper our 
response to one of the most insidious challenges this country has 
faced.

    Chairman Kennedy. I will just ask a couple of questions. 
Those that think that we ought to wait on this until we have 
the final reorganization and restructuring of INS, what is your 
reaction to that?
    Ms. Walker. Thank you, sir. My reaction to that is that it 
is ridiculous, bluntly. But respectfully, we have plenty of 
bills pending for people trying to figure out how to reorganize 
the INS. It has been going on for years. Nine-eleven is 
something that happened just recently that we have to address. 
Obviously, INS reorganization is something we have to deal 
with, but we also have to deal with hiring people down at our 
ports of entry, getting them up and running. It is going to 
take us over six months just to hire people.
    We have got to give our consular corps the appropriate 
types of technology to be able to interdict these people. We 
have got to be able to have them give an appropriate review, 
based on the intelligence that they will need, as Senator 
Feinstein so aptly noted earlier. And without doing so and 
waiting, we only harm ourselves. Where is the logic in that?
    Chairman Kennedy. Just finally, you refer to this perimeter 
defense, which is something that may be out there down the 
road, in the future. We heard from our former governor and 
current Ambassador to Canada who thinks that having cooperation 
in terms of the total entry into North America, and hopefully 
extending that down into the South, to Mexico, could be 
important as sort of a first line of defense prior to people 
coming into Canada and then being able to come into the United 
States.
    Do you want to make just a brief comment? We are doing a 
study on that, but it is a matter, I think, of importance, 
looking down the road further. I would be interested, since you 
referenced it--not many people do--your reaction.
    Ms. Walker. Yes, sir. Already, just think, we have 
established at least a baseline with Governor Ridge's 
activities with Canada and Mexico, but what really makes a lot 
of sense is you can utilize that also to achieve effective 
commerce crossings, as well. If you are able to go ahead and 
have more security and more agreement between Canada, Mexico, 
and the United States on the individuals crossing back and 
forth amongst our borders, we are going to be able to 
effectuate entries to those countries, as well, as well as 
improve our interdictive efforts.
    Why would I not want to try to create a perimeter zone to 
further push back the person from possible entry to the United 
States by utilizing our trading partners? Again, it is a 
logical step.
    Chairman Kennedy. It is a logical step, and the way you 
present it is compelling, but this is something that will take 
additional thinking on through. With this, we just begin that 
process, but I think there is a lot to that.
    Senator Brownback.
    Senator Brownback. Thank you, Mr. Chairman, and thank you 
both as witnesses for being here and for pressing this forward. 
We are hopeful to be able to see quick action in the next week 
in the Senate and move this on to the President, because I 
think we really need to get it on through.
    I was in your area, El Paso, with the Attorney General, it 
has been a year ago, and we were at the INS detention facility 
and it was amazing to me. I asked the director how many 
different countries were represented at the detention facility 
in El Paso, Texas, and he said 59 different countries were 
represented. That is a little higher than I thought it would 
be, at 59. You could hold a pretty good global meeting with 
representatives from that many different countries. He said a 
number of people come in through Central America or other 
places and then take ground transportation on up to the border, 
which is building on the point of why we think we need a North 
American perimeter to try to back some of the problems down.
    Another point that I felt has been important in this is 
that we are such a large global economy as a country, $9 to $10 
trillion GNP annually in this country. We get millions of 
people crossing our borders regularly as a key part of what our 
commerce is and our openness as a country. So the number of 
people that we are looking for that are coming to the United 
States to do us harm is a small number amongst millions. It is 
not a needle in a haystack, it is a needle in a hayfield. So we 
have got to really concentrate and hone in on where do we think 
the problem areas are, and that was the attempt with this bill.
    It is not financially possible, if it were even physically 
possible, for us to close the borders down, and we should not 
do that. But we need to be able to try to get at where those 
problems are, and that is why we have drafted this legislation 
the way we have to try to get at the problems as much and as 
effectively as we can.
    Do you see anything in here as a practicing lawyer and the 
head of the immigration bar that you look at and say, this is 
going to be particularly useful to us? In your years of 
practice and your work, you are saying, this is an area that we 
should have plugged years ago and I see that this is here and 
this is really going to help us now?
    Ms. Walker. You know, the basic fundamental addition of 
inspectors and investigators provided by this bill is pivotal. 
We tend to think of immigration and security at our borders as 
being related to the Border Patrol, and aptly, it is, but we 
have not provided the focus oninspectors and investigators and 
the technology that they need.
    For example, why have all of our Mexican nationals get a 
new laser visa, which is supposed to be machine readable, and 
yet we do not have the scanners to read them and utilize the 
benefits of those cards at our ports of entry, which would also 
enable us to be able to start tracking entries. We could have 
already started that.
    So it is pivotal, those provisions, as well as since we 
have NAFTA already, it would have made sense to have as a part 
of NAFTA these security level concerns addressed at that point, 
and integration of those policies.
    Senator Brownback. I think you covered it well, and that 
was an excellent point.
    MaryEllen, let me just say again, as the chairman did, 
thank you for being here. I have young children, we have five 
children, and just the idea of being there without one of the 
spouses would be a very difficult thing. Your courage in being 
here and representing the families that were hit so directly 
and so hard on September 11, I really appreciate that and God 
bless you for doing it.
    Ms. Salamone. Thank you. It is my honor.
    Chairman Kennedy. Thank you.
    Senator Feinstein.
    Senator Feinstein. Thanks, Mr. Chairman.
    I wanted to ask Ms. Walker a question. One of the things 
that has occurred to me in the nine-and-a-half years I have 
been on this is that we may well have, no matter how much we 
can modernize and improve the management of the agency, an 
agency that is dramatically overburdened. Let me just read you 
some figures. This is CRS.
    During 1998, this is the most recent year for which these 
data are available, a record 30.1 million non-immigrants 
entered the United States, and the overwhelming majority, 23 
million, were tourists. Now, those are the visa waivers. Nobody 
knows where they are, whether they have left or not or what 
they are doing.
    In 1999, the Department of State issued 537,000 visas to 
foreign students, making up nine percent of the six million. In 
1999, the Department of State identified 291 potential non-
immigrants as inadmissible for security or terrorist concerns. 
Of that number, 101 aliens seeking non-immigrant visas were 
specifically identified for terrorist activities, but 35 of 
them were able to overcome the ineligibility.
    Have you looked at this at all? I mean, you get overcome. 
And then you have, what is it, 350 million border crossings 
that are legally here. I mean, it is just hundreds of millions 
of people coming in and out of this nation all of the time. 
Now, that is great up to this point where we now have reason to 
believe that asymmetric warfare, the terrorist act, is really 
going to be the warfare of the future, perhaps for the next 
decade or more, and there is good evidence that that is going 
to be an ongoing concern.
    You are technically extraordinarily proficient. You know 
this area. What is your best advice to us? How do we manage 
that system?
    Ms. Walker. The system, first of all, has to involve 
individuals who are accountable, and what I have seen in the 
past is that we have a good idea. We may not know how much it 
costs. We may not know how many people it takes. And we are not 
able to react effectively enough as developments occur to 
address those concerns. There has to be the flexibility to 
respond quickly and effectively, but also there has to be 
accountability.
    What I find the most frustrating, this is a ``one bite of 
the elephant at a time'' sort of thing to be able to even 
start, because I agree with you that it is overwhelming, the 
responsibility and the difficulty in dealing with it. But you 
have a lot of responsible people out there who want to do the 
right thing. You give them the tools, the direction, and then 
do follow-up from a Congressional audit or review and make sure 
that things are going accordingly.
    I must say that what I have seen in my 16-and-a-half years 
on the border is ideas come down, but not with clear 
directives, and also, there is no follow-up. Let us talk about, 
for example, just this small example of the laser visas for 
Mexican nationals. They are the most documented foreign 
nationals that we have to deal with on entry, and we decided 
that we needed a biometric card. That card already involves a 
digitized print. It already involves a digitized photograph. We 
were supposed to have scanners to be able to scan them on entry 
to more effectively enter. It was a two-for-one deal, improve 
commerce in entry, at the same time, improve security, and yet 
we have not moved forward with it.
    I find that inexcusable, and I lay the blame at a lot of 
different feet, but it does not do any good to lay blame right 
now. We have got to figure out what the problem is and answer 
it and hold people accountable.
    Senator Feinstein. Can I ask you a question?
    Ms. Walker. Yes, ma'am.
    Senator Feinstein. One of the things that I have found is 
that the private sector management in terms of technology is 
much more sophisticated than the public sector management in 
terms of technology. Governments are usually civil service 
bureaucracies and heads of these bureaucracies are unable to 
bring in the freshest, best talent to put in managerial 
systems.
    One of the things I have been thinking of, whether it makes 
any sense to permit the Commissioner of Immigration tobring in 
a whole top-level coterie of the most efficient technologically adopt 
managers from the private sector.
    Ms. Walker. I think any partnership of the private and 
public sector makes sense. Let us talk about the issue of 
unified port management, just in trying to get the Customs 
Service and the Immigration Service to work and play well 
together. Unified port management, which Senator Kyl is very 
familiar with with the Arizona Department of Transportation 
study that was conducted many years ago in his State, 
identified that you have more than one cook in the kitchen, 
basically, here with these agencies at these ports of entry, 
and in addition to that, if you manage to have community 
accountability and then one entity that is responsible and 
reactive to be able to implement these technologies, that we 
are more effective.
    So absolutely, any type of partnership that gives you the 
most talent would be effective. At least, that is my opinion.
    Senator Feinstein. Thank you very much. Thanks, Mr. 
Chairman.
    Chairman Kennedy. Senator Kyl.
    Senator Kyl. Thank you, Mr. Chairman.
    September 11 in many ways brought out the best in America. 
It certainly brought out the best in a lot of Americans and 
especially so for many of the families of victims of the 
September 11 tragedy. For people like Ms. Salamone to be here 
today testifying so strongly in support of this legislation is 
just one more example of that strength and the way that people 
have found the best in themselves to help the entire nation 
prepare for the future and recover, bringing their unique and 
special experiences to this fight, and I very much appreciate 
your being here this morning, Ms. Salamone.
    Ms. Salamone. Thank you. Again, it is my honor.
    Senator Kyl. Well, we appreciate it very much. It will help 
us in finally getting this legislation pushed through, I am 
sure.
    And to have someone as experienced as Ms. Walker here, with 
the wealth of the background you have in immigration matters 
supporting this legislation, and in a statement which you did 
not read but you have submitted for the record, which is very 
thorough, covers everything in the legislation with some 
critique of different provisions, but showing how they all work 
together in an integrated way to make this work, is also very 
important.
    Ms. Walker, you made the point, to talk about the funding 
of some things that are in this legislation that will have to 
be funded, and the lack of funding for some other projects that 
are already in the law, like the laser visa system, it made 
absolutely no sense to require the laser visas of our Mexican 
friends. A lot of my friends go down to Hermosillo, which is 
where they have to get the laser visa. They go through a lot of 
trouble, it costs them money, and then there is no machine to 
read it.
    We go to the INS and they say, well, we do not have the 
money. Well, did you ask for it? Not exactly. We talk to some 
of our friends here in the Congress, what about appropriating 
the money? Well, INS is a poor institution. It is just pouring 
more money down a black hole. Well, that is a real constructive 
solution to the problem.
    You point out something that is critical. We are going to 
have to fund this legislation. My view is that, yes, it is 
going to cost some money in the short run and I will lead the 
effort to get it funded. Those who say, Congress will never 
fund this and that is a reason to oppose it are wrong. We have 
no choice and I will lead the effort. I will join my colleagues 
in seeking the funding.
    But I think the irony is that, over time, the use of 
technology will actually result in a less-expensive system than 
the old-fashioned way that we have been doing it. I will make 
two points and then I would just ask you to comment.
    The thesis of your comments is that we have a dual task 
here, to enhance commerce, the millions of people that cross 
our border every day for legitimate purposes, and two, to stop 
those few who we would want to stop. That requires the 
application of technology. In fact, it cannot be done any other 
way. But we have held hearings in our subcommittee that 
demonstrates the technology that is available. It is relatively 
inexpensive, and over time, obviously, the cost of that 
technology would go down, in addition to which, someday, I am 
going to try to figure out how much the cost is for the delays 
just at the border between Arizona and Mexico.
    The Secretary of Energy from Michigan used to complain 
about two-minute delays between Canada and the United States. 
Two minutes? I said, if we could get it down to two hours, we 
would be pleased. Think of the lost time and productivity just 
by the delays.
    So your point about the delay of legitimate crossing for 
commerce and other reasons and stopping the terrorists and 
using the technology to enhance both is, I think, right on the 
mark. We will not only get the cost down, but we will save 
money as a result of speeding up the commerce, and we will 
eventually save money as a result of the diminished costs of 
the terrorists, such as that that occurred on September 11.
    Now, you make the point we have already lost seven months 
in recruiting and in addressing existing problems and talked 
about the importance of the investigators and theinspectors. I 
just wondered if you could explore that just a little bit more for 
those who are not familiar with the job that the inspectors and the 
investigators do. We tried hard to get more border agents on the border 
and we have a ways to go yet there. But we also are woefully inadequate 
in our inspectors and investigators. To some extent, more of them, 
well-trained, are going to be required to make part of our bill work.
    Ms. Walker. Thank you, Senator Kyl. The inspectors 
represent the true dilemma of the Immigration Service. When we 
talk about that dichotomy between enforcement and benefits, 
where those two missions truly merge is with the inspectors' 
function. They are out there dealing with hours being on the 
line inspecting passenger vehicles and whether or not someone 
is admissible and trying to also interdict drugs and then work 
with their compatriots with the Customs Service to go down and 
inspect the vehicle further for the drugs to seize them. And 
then you have got to deal with those pedestrians and applicants 
who are trying, for example, on our Southern border to enter 
the United States for a period of more than 72 hours or go 
beyond a 25-mile perimeter of the border, except in your State, 
75 miles and one point, and that takes a lot of time.
    Another portion of that is they have to figure out whether 
or not people coming to seek asylum protection can go ahead and 
receive it, as they should when they are qualified. They have 
got to deal with, in addition to that, processing the final 
entry for people coming in after being approved for immigrant 
visas. They have got to deal with that, also.
    They have got a panoply of tasks that they have to deal 
with and are not compensated as well as other members of the 
INS workforce. They have got more burden on their back than 
just about any other portion of our INS group of workforce, so 
why are we not recognizing that? It makes absolutely no sense.
    From an investigator's perspective, those are the people 
that are trying to investigate and interdict smuggling rings. 
They are trying to follow up on people who have over-stayed, 
people who have violated status, to track down people who have 
not gone ahead and presented themselves for removal from the 
United States. We are doing that with 2,000 people? There had 
better be super-human efforts to be able to perform their 
tasks. I expect a lot out of them, but I do not think it is 
realistic to expect that much.
    So I would go beyond 200 that is provided in this bill if I 
could, but it is a start and it is a valid one, it is a 
reasoned one, and it is a long-needed one.
    Senator Kyl. Thank you very much. We will need a lot more 
and I hope you will be able to help us in our request for the 
funding to back up the bill once we get it passed.
    Ms. Walker. It would be my privilege.
    Senator Kyl. Thank you very much, both of you.
    Chairman Kennedy. Thank you very much. As I understand, 
your sense of the balance between sort of the law enforcement 
and the openness which you get, do you think we have done this 
about as well as we could? What is your reaction?
    Ms. Walker. Senator Kennedy, you have indicated in this 
bill that all of these elements are important, but what also 
will be critical is your ability to monitor how this is 
implemented.
    Chairman Kennedy. All right, good. Fair enough.
    Ms. Walker. Hold their feet to the fire.
    Chairman Kennedy. That is very helpful. We are going to 
look forward to hearing from you, because we are going to 
monitor it and we are going to call upon you as this moves 
along to give us your best judgment as to how it is being 
implemented, as well, and we thank you very, very much.
    We thank you, Ms. Salamone, as well. We are very grateful 
to you for taking the time and being here. It is a wonderful 
thing that you are doing. There are 149 families in 
Massachusetts, as well, and I know how proud they would be of 
your presence here. Thank you very much.
    We will excuse both of you at this time.
    Ms. Walker. Thank you very much.
    Ms. Salamone. Thank you.
    Chairman Kennedy. Our final witness is Senator Robert Byrd, 
who is the Chairman of the Appropriations Committee and has 
taken a deep interest in the issues of border security and 
homeland security. Many of us have worked with him on these 
issues and we are very, very grateful for his presence. I have 
had the good opportunity to work with him on the whole issue on 
bioterrorism with Senator Frist. He had the chance to come 
before the committee and also visit and talk with him about how 
we were going to deal with those particular kinds of challenges 
affecting American security.
    He has been one in the Senate on bringing together the 
range of homeland security issues that has given a very, very 
high priority to this, as well as a number of issues, and he 
has followed the development of this legislation and is always 
interested and has been involved generally in the matters of 
the committee. We are very grateful for his presence here.
    We have been joined by Senator Cantwell, as well, and we 
will look forward to hearing from him.
    Senator Byrd, we are very appreciative of your joining with 
us here this morning.

STATEMENT OF HON. ROBERT C. BYRD, A U.S. SENATOR FROM THE STATE 
                        OF WEST VIRGINIA

    Senator Byrd. Thank you, Senator Kennedy. I was on this 
committee many years ago with you and I remember those days. I 
had a great deal of pleasure. We had some tense hearings in 
those days. As I recall, we did not have any five-minute rules. 
We pursued a line of questioning until we were finished.
    Chairman Kennedy. I am not sure whether you were here when 
I was here. At the time Sam Ervin was here, the consideration 
of the 1964 Civil Rights Act, and Attorney General Robert 
Kennedy was in that seat there and Sam Ervin questioned him for 
two-and-a-half days--two-and-a-half days before it became my 
turn to question after that. There were advantages at that time 
in terms of developing a thorough record, but I am not as 
interested in following the clock. You take whatever time that 
you desire.
    Senator Byrd. Thank you. Mr. Chairman, members of the 
committee, I thank you for inviting me to testify before your 
subcommittee today to share my thoughts on border security and 
the Enhanced Border Security and Visa Entry Reform Act.
    I applaud the subcommittee for initiating a long overdue 
debate on the security of our nation's borders. The need for 
such a debate is unquestionable. We ought to have a debate. 
That was one reason why I did not give my unanimous consent to 
Senators who urged me to give unanimous consent to the passage 
of this bill at the close of the last session. There needs to 
be debate.
    The September 11 attacks showcased the gaps in our border 
defenses. Each of the 19 hijackers involved in the September 11 
attacks was granted a visa to enter our country by a U.S. 
consulate abroad. Three of the hijackers lived undetected in 
the United States for months after their visas had expired. Six 
months after the September 11 attacks, the INS was still 
processing paperwork for two of the terrorists who piloted 
planes into the World Trade Center towers. I firmly believe 
that the Senate needs to pass legislation to tighten our 
immigration and border security laws.
    I devoted a large amount of my time and resources last fall 
to that very goal. I crafted a $15 billion homeland defense 
package as part of the economic stimulus bill the Senate 
considered last November. That homeland defense package 
provided $1.1 billion for border security initiatives, many of 
which are included in the border security bill that we are 
discussing today. Under a Presidential veto threat--let me 
underline that, under a veto threat by President Bush, those 
funds were removed from the economic stimulus package by a 
partisan vote on a budgetary point of order, and every 
Republican on this committee supported that point of order to 
knock out that money. Not a single Republican stood with us in 
my effort to fund border security then and there, not one.
    After the $15 billion homeland defense package was removed 
from the stimulus bill, I came back. I offered a $7.5 billion 
homeland defense package. Of that amount, $591 million was 
devoted to border security initiatives, many of which are 
included in this subcommittee's border security bill. Once 
again, under the threat of a veto by President Bush, those 
funds were removed, this time from the fiscal year 2002 defense 
appropriations bill by a partisan vote on a budgetary point of 
order, a 60-vote point of order, and every Republican on this 
committee voted to knock that money out at that time. Because 
that point of order--we were not able to get the 60 votes to 
override it because the Republicans to the man and woman voted 
against it. We could have done things then. But every 
Republican on this committee voted against us.
    Make no mistake about it, I understand that additional 
resources are required and I tried to provide them to secure 
our borders, but when a unanimous consent request was 
circulated in the waning hours of the first session of this 
Congress to take up and to pass this subcommittee's bill, I was 
forced to object. Now, I was criticized across the country for 
holding up border security, holding up border security. When I 
tried to get money before we went out of session, not a single 
Republican on this committee supported me, not one.
    At the time, I was told that a window of opportunity had 
opened to pass this legislation and that in the aftermath of 
the September 11 attacks, a united coalition, Democrats and 
Republicans, would support this authorization bill. Yes, they 
were willing to support the authorization bill, good to pass 
that, pass it by unanimous consent, go back home and say we 
have taken care of the problem. We passed an authorization 
bill. But not one, not one Republican--I am sorry to have to be 
so strong in my statement here in this regard. I very seldom 
criticize members of the other party, but I think I have a 
right to in this instance.
    I fought the fight then. I tried to get money then, but 
every Republican on this committee voted against that money. 
They supported that 60-vote point of order. They could have had 
the money then. No, they were strong on getting Senator Byrd to 
go along with the unanimous consent to pass this authorization 
bill, but they would not back us up when it came to voting for 
the money, and their President, our President, my President 
threatened to veto anything over $40 billion.
    We passed a $40 billion appropriation bill within threedays 
of that horrendous, horrific, savage attack on the Twin Towers. Within 
three days, we passed $40 billion. The administration wanted $20 
billion. We worked it up to $40 billion, and then we were hung on our 
own petard. When it came to trying to get one thin dime over that $40 
billion, the administration threatened to veto it and the Republicans 
raised the 60-vote point of order and the Republicans voted against 
that money then.
    That is one reason, Mr. Chairman and members of the 
committee, I try to speak respectfully to all members. I hold 
all members in respect, I always have. I have been here 50 
years. I was taught a long time ago to respect other members 
and respect their feelings. I have got to tell you, I have to 
speak with some feeling. I was drawn and quartered when I tried 
to get more money for this very purpose last fall, and then 
some of the members of this committee implored me, pleaded with 
me to agree to unanimous consent to pass this authorization 
bill. They could go home then. They could say, oh, yes, we 
passed that.
    But when it comes to the money, I wanted to face these 
Republicans and say, are you going to vote for the money? As an 
appropriator, I have a right to know and I have a right to be 
concerned. And I tried, I tried, I tried and this President 
threatened to veto one dime, one dollar over the $40 billion.
    Chickens have a way of coming home to roost. But the so-
called coalition split twice last year, in November and 
December, when it came time to appropriate the money. When it 
came time to put the money on the barrelhead, they were not 
there.
    What is more, in circulating that unanimous consent 
request, Senators who do not sit on this subcommittee and had 
no voice in crafting this border security bill were being asked 
to pass it without debate, without amendment, and without any 
action by the Judiciary Committee. That is an egregious way for 
the Senate to conduct its business and I am not for it.
    I have been around here 50 years. The Republicans were in 
control when I came here. Joe Martin was in control of the 
House. John Tabor was in control of the Appropriations 
Committee in the House, John Tabor of New York. They would turn 
over in their grave today if they knew what is going on now.
    Passing bills without debate, important bills, far-reaching 
bills, bills that are going to cost money? Nobody on this 
committee, not one person on this committee today can tell me 
how much money this bill is going to cost, not one. When the 
Senate passes legislation without debate and without amendment, 
we forego our responsibility to be a salutary check on the 
government. While debate and amendments can be limited or even 
prohibited in the House, the Senate is the only body that has 
the procedural means to question, examine, and discuss at 
length every measure that comes before it.
    In the Federalist Paper No. 62, James Madison wrote that 
``a defect to be supplied by a Senate lies in a want of due 
acquaintance with the objects and principles of legislation. 
What indeed are all the repealing, explaining, and amending 
laws which fill and disgrace our voluminous code but so may 
monuments of deficient wisdom.''
    Only by offering and debating amendments and by voting on 
the underlying legislation can the Senate work to ensure that 
the Congress does not act with deficient wisdom. To do less is 
to fail in our duty to educate and inform the public about 
matters which affect their lives, the people's lives.
    If we forego a national debate about our border defenses in 
order to pass legislation through a fleeting window of 
opportunity, as I was told, as I was beseeched, as I was 
implored, as I was importuned to do last December, a fleeting 
window of opportunity, we risk failing to explain and examine 
important details that could improve the legislation.
    I heard on some of the radio talk shows around the country 
that I was holding up border security, that I was holding up 
border security. I thought we ought to have a debate on this 
bill. Let the American people in on this window. Let them hear 
the details of it.
    This bill, if it is to be successful, will require the 
support of the Congress and the American people over the long 
haul. It will also require, according to the INS, if we can 
believe them, billions of dollars, although no one knows its 
true cost because the Congressional Budget Office never had to 
provide a cost estimate as a part of the committee process.
    If the Senate passes this legislation by unanimous consent, 
which it will not, without the benefit of public debate, how 
can the American people, who ultimately will have to foot the 
cost of the bill, be expected to support the long-term 
financial commitments that this legislation would require? And 
where will the administration stand? Where will the President 
stand then?
    Mr. Chairman, the lapses in our border security extend well 
beyond the problems identified by the pending bills. Part of 
the problem is that our border security policies are driven by 
factors other than homeland defense. Too often, the safety of 
the American people within their own borders has taken a back 
seat to politics.
    We need only look to the 1996 Illegal Immigration Reform 
and Immigrant Responsibility Act to see how border security 
initiatives, such as the integrated exit/entrysystem, a tighter 
visa waiver program, and the implementation of the foreign student visa 
monitoring program have been scaled back or delayed to accommodate 
trade, commerce, diplomatic concerns. The administration's proposal to 
revise the Section 245(i) amnesty is only the latest example of how 
quickly we fail to integrate new border security concerns into older 
policies.
    Similarly, this Congress is quick to pass legislation that 
will place new requirements, new deadlines on the INS without 
giving adequate consideration to whether that agency is 
equipped to meet those mandates. The inevitable result is that 
the Congress will later have to weaken the mandate or roll back 
the deadline when the INS fails to comply with the law. 
Considering the INS's most recent debacles and its apparent 
inability to handle its current workload, I suggest that before 
we task that agency with additional responsibilities and with 
meeting additional deadlines, we should first try to reach some 
sort of consensus about that agency's organizational structure.
    So far, the administration has proposed two seemingly 
contradictory INS restructuring plans. The first plan would 
split the INS into an enforcement agency and a separate service 
agency, and the second would consolidate the INS and the 
Customs Service within the Justice Department.
    The House Judiciary Committee marked up an INS 
restructuring plan just a few days ago, this week, I believe. 
As I understand it, Chairman Kennedy and Senator Brownback are 
crafting an INS restructuring plan, as well, and that is to say 
nothing of the fact that at least two bills have been 
introduced in the Congress that consolidate the Border Patrol 
functions of the INS within a Homeland Defense Department or 
agency.
    With all of these organizational plans circulating through 
the halls of Congress, it makes little sense to me that the 
Senate today will begin consideration of a border security bill 
that places new mandates on the INS without addressing how that 
agency should be structured. Mr. Chairman, fixing the holes in 
our border defenses will require more than an interoperable 
database system, even though that is needed. I am all for that. 
And biometric identifiers, I am all for them. While they 
undoubtedly are needed, these initiatives are no panacea for 
border defense.
    We must adjust our mindset about border security to reflect 
the realities of September 11. We need to consider the funding 
changes which may be necessary in light of a different 
organizational structure of our border defenses. We need to 
acknowledge that a long-term commitment of resources is 
necessary if we are to close the holes that were exposed by the 
September 11 attack. We cannot achieve these goals without a 
comprehensive debate, and we certainly cannot achieve them if 
we pass legislation by unanimous consent.
    We risk the loss of confidence of the American people if we 
enact deadlines that we know will be breached and technology 
that may still be in the prototype stage. Another border 
incident coming on the heels of a bill that has been hailed as 
a panacea will not help to sustain public support for the 
expenditures which will be necessary. That is where the rubber 
will hit the road, the expenditures that will be necessary to 
repair our border ills.
    I thank Senators Kennedy, Brownback, Feinstein, and Kyl for 
authoring this legislation. It is a start. It at least is going 
to have some debate. But I am hopeful that the bill's 
proponents understand that this legislation is not the final 
answer to what ails our border defenses. Meeting the deadlines 
and requirements set out in this bill will require their 
continued support for large amounts of funding this year and in 
future years, and without those funds and without the continued 
support of Senators on both sides of the aisle, this bill is 
just an empty promise.
    Mr. Chairman, I thank you.
    [The prepared statement of Senator Byrd follows:]

                  Testimony by Senator Robert C. Byrd

    Chairman Kennedy, Senator Brownback, and members of the Immigration 
Subcommittee, I thank you for inviting me to testify before your 
Subcommittee today to share my thoughts on border security and the 
Enhanced Border Security and Visa Entry Reform Act.
    I applaud the Subcommittee for initiating a long-overdue debate on 
the security of our nation's borders. The need for such a debate is 
unquestionable.
    The September 11 attacks showcased the gaps in our border defenses. 
Each of the 19 hijackers involved in the September 11 attacks was 
granted a visa to enter our country by a U.S. consulate abroad. Three 
of the hijackers lived undetected in the United States for months after 
their visas had expired. Six months after the September 11 attacks, the 
INS was still processing paperwork for two of the terrorists who 
piloted planes into the World Trade Center towers.
    I firmly believe that the Senate needs to pass legislation to 
tighten our immigration and border security laws.
    I devoted a large amount of my time and resources last fall to that 
goal. I crafted a $15 billion homeland defense package as part of the 
economic stimulus bill the Senate considered last November. That 
homeland defense package provided $1.1 billion for border security 
initiatives, many of which are included in the border security bill we 
are discussing today.
    Under a presidential veto threat, those funds were removed from the 
economic stimulus package by a partisan vote on a budgetary point of 
order.
    After the $15 billion homeland defense package was removed from the 
stimulus bill, I offered a $7.5 billion homeland defense package. Of 
that amount, $591 million was devoted to border security initiatives, 
many of which are included in this Subcommittee's border security bill.
    Once again, under the threat of a presidential veto, those funds 
were removed, this time from the Fiscal Year 2002 Defense 
Appropriations bill, by a partisan vote on a budgetary point of order.
    Make no mistake, I understand that additional resources are 
required to secure our borders. Nevertheless, when a unanimous consent 
request was circulated, in the waning hours of the first session of 
this Congress, to take up and to pass this Subcommittee's bill, I was 
forced to object.
    At the time, I was told that a window of opportunity had opened to 
pass this legislation, and that, in the aftermath of the September 11 
attacks, a united coalition--Democrats and Republicans--would support 
this authorization bill.
    But the so-called coalition split twice last year, in November and 
December, when it came to appropriate the necessary funds.
    What's more, in circulating that unanimous consent request, 
Senators who do not sit on this Subcommittee and had no voice in 
crafting this border security bill, were being asked to pass it--
without debate, without amendments, and without any action by the 
Judiciary Committee.
    That is an egregious way for the Senate to conduct its business. 
When the Senate passes legislation--without debate and without 
amendments--we forgo our responsibility to be a salutary check on the 
government. While debate and amendments can be limited or even 
prohibited in the House, the Senate is the only body that has the 
procedural means to question, examine, and discuss at length every 
measure that comes before it.
    In The Federalist Paper #62, James Madison wrote that a ``defect to 
be supplied by a senate lies in a want of due acquaintance with the 
objects and principles of legislation . . . What indeed are all the 
repealing, explaining, and amending laws, which fill and disgrace our 
voluminous codes, but so many monuments of deficient wisdom?''
    Only by offering and debating amendments, and by voting on the 
underlying legislation, can the Senate work to ensure that the Congress 
does not act with ``deficient wisdom.'' To do less is to fail in our 
duty to educate and inform the public about matters which affect their 
lives.
    If we forgo a national debate about our border defenses in order to 
pass legislation through a fleeting window of opportunity, we risk 
failing to explain and examine important details that could improve the 
legislation.
    This bill, if it is to be successful, will require the support of 
the Congress and the American people over the long haul. It will also 
require, according to the INS, billions of dollars--although, no one 
knows its true cost because the Congressional Budget Office never had 
to provide a cost estimate as part of the Committee process. If the 
Senate passes this legislation by unanimous consent--without the 
benefit of public debate--how can the American people, who ultimately 
will have to foot the cost of this bill, be expected to support the 
long-term financial commitment that this legislation will require?
    Mr. Chairman, the lapses in our border security extend well beyond 
the problems identified by the pending bill. Part of the problem, is 
that our border security policies are driven by factors other than 
homeland defense. Too often, the safety of the American peoplewithin 
their own borders has taken a back seat to such issues as trade, 
commerce, tourism, and diplomacy and politics.
    We need only look to the 1996 Illegal Immigration Reform and 
Immigrant Responsibility Act to see how border security initiatives--
such as the integrated exit/entry system, a tighter Visa Waiver 
Program, and the implementation of a foreign student visa monitoring 
program--have been scaled back or delayed to accommodate trade, 
commerce, and diplomatic concerns. The Administration's proposal to 
revive the Section 245(I) amnesty is only the latest example of how 
quickly we fail to integrate new border security concerns into older 
policies.
    Similarly, this Congress is quick to pass legislation that will 
place new requirements and deadlines on the INS without giving adequate 
consideration to whether that agency is equipped to meet those 
mandates. The inevitable result is that the Congress will later have to 
weaken the mandate or roll back the deadline when the INS fails to 
comply with the law.
    Considering the INS' most recent debacles, and its apparent 
inability to handle its current workload, I suggest that, before we 
task that agency with additional responsibilities and with meeting 
additional deadlines, we should first try to reach some sort of 
consensus about its organizational structure.
    So far, the Administration has proposed two seemingly contradictory 
INS restructuring plans. The first plan would split the INS into an 
enforcement agency and a separate service agency, and, the second, 
would consolidate the INS and the Customs Service within the Justice 
Department.
    The House Judiciary Committee marked up an INS restructuring plan 
this week (April 10). As I understand it, Chairman Kennedy and Senator 
Brownback are crafting an INS restructuring plan as well. And that's to 
say nothing of the fact that at least two bills have been introduced in 
the Congress that consolidate the border patrol functions of the INS 
within a Homeland Defense Department or Agency.
    With all of these organizational plans circulating through the 
halls of Congress, it makes little sense to me that the Senate today 
will begin consideration of a border security bill that places new 
mandates on the INS without addressing how that agency should be 
structured.
    Mr. Chairman, fixing the holes in our border defenses will require 
more than an interoperable database system and biometric identifiers. 
While they undoubtedly are needed, these initiatives are no panacea for 
border defense.
    We must adjust our mind set about border security to reflect the 
realities of September 11. We need to consider the funding changes 
which may be necessary in light of a different organizational structure 
of our border defenses. We need to acknowledge that a long-term 
commitment of resources is necessary if we are to close the holes that 
were exposed by the September 11 attacks. We cannot achieve these goals 
without a comprehensive debate, and we certainly cannot achieve them if 
we pass legislation by unanimous consent.
    We risk the loss of confidence of the people if we enact deadlines 
that we know will be breached and tout technology that may still be in 
the prototype stage. Another border incident coming on the heels of a 
bill that has been hailed as a panacea will not help to sustain public 
support for the expenditures which will be necessary to repair our 
border ills.
    I thank Senators Kennedy, Brownback, Feinstein, and Kyl for 
authoring this legislation, but I am hopeful that this bill's 
proponents understand that this legislation is not the final answer to 
what ails our border defenses. Meeting the deadlines and requirements 
set out in this bill will require their continued support for larger 
amounts of funding this year and in future years. Without those funds 
and without their continued support, this bill is just an empty 
promise.

    Chairman Kennedy. I thank you very much, Senator Byrd. I 
remember very clearly the efforts that were made in terms of 
the homeland security debate last year and I think we have, 
hopefully, certainly in some important areas, we have been able 
to move on. I know that has been true in the bioterrorism area 
and some of the other areas. We are hopeful we can move on in 
this area.
    As I have mentioned with you privately, and I have not been 
able to convince you of the fact, we are looking at the general 
restructuring of the INS. I personally have introduced in the 
105th and 107th Congress the restructuring that had been 
recommended by the Jordan Commission. The Jordan Commission had 
some of the most distinguished men and women who studied this, 
basically a nonpartisan, bipartisan group. Congresswoman Jordan 
in the twilight of her life, really, devoted an enormous amount 
of time. It is not the end-all, but it was a very important 
start and it is one which I personally believe is the basis for 
the debate and discussion on that. We have had hearings in the 
past. We are going to be back having hearings in the future on 
it.
    We believe that given the kinds of problems that we are 
facing out there with the border security, for example, under 
the visa waiver now, there are 22 million people that can come 
in here, and as our previous witnesses said, we do not track 
whether they are leaving or not. That is happening today. It 
will not when this bill passes. It will take time to get up, 
get the professional people, but we are moving along on that 
today.
    We still do not have the CIA giving to the FBI the 
important intelligence information in terms of granting waivers 
in different parts of the world. There is a general agreement, 
but not the specificity that we have worked out with the 
different agencies to make sure that even a more highly trained 
consular corps reviewing the latest information may be able to 
make sure that our borders are going to be more secure. We 
believe this legislation can be helpful.
    We have worked very closely with the Commerce Committee, 
Senator Hollings and other appropriators interested in that, 
Judd Gregg, for example, to make sure that what is going to be 
done with these computers here is going to be coordinated with 
what is happening now currently in the FBI. We have made that 
effort. Lord only knows, there may be other ideas from our 
members who follow these closely, yourself included. I know how 
you have followed these issues on the computers and computer 
training and the rest. But we have made that an important 
interoperability.
    The list goes on, the biometrics issues, which you are very 
familiar with. I know that. I have talked to you about it, to 
ensure the utilization of it. And then the tracking that we 
have. We have 26,000 educational institutions that can grant 
student visas today. That is happening today. We are closing 
that loophole. We are closing that loophole in this 
legislation.
    I believe that we can do that and these other items without 
waiting for the questions about how the arrangements are going 
to be made between Customs, the border, and terms of the INS. 
We have tried to make this a very lean, tight program that is 
responsive to professionals, as we have just heard, who think 
that immediate steps can make some difference in this.
    You and I have talked about this a number of times, though 
I am not sure that I am being any more persuasive with you. We 
do think we have some overall budget figures. Our estimate is 
$1.2 billion this year, $3.2 billion over a three-year period, 
and I believe about $750 million of that is actually included 
in the administration's kind of request--$743 million--but we 
would be delighted to go over these in detail with your 
Appropriations Committee. We are going to obviously have to, in 
any event. We welcome that kind of exchange.
    We have some additional areas of priority beyond what the 
administration had at the $743 million that brings us up to the 
$1.2 billion, which includes developing and sharing the 
intelligence law enforcement with the INS, State, and the data 
system. It is primarily the upgrading, the sort of Border 
Patrol inspectors, training, and we will go over that. I will 
put this in the record and would welcome your response, 
obviously, because your committee is going to have to make the 
judgments as to whether these are justified.
    I want to just say that I certainly am one that was 
supporting your increases and I will let others speak to it. We 
want to work with you on the funding that is going to be 
necessary. We will welcome that.
    We thank you for raising these issues. I think because you 
have raised them, hopefully, our members have a better 
understanding and awareness of what we are trying to do and the 
steps that we are trying to take and the American people do, as 
well. I believe that there is an urgency about this legislation 
which is special and that is why I and my colleagues have 
pressed our leadership to bring it to the Senate floor this 
afternoon.
    Senator Brownback. Mr. Chairman.
    Chairman Kennedy. Senator Brownback.
    Senator Brownback. Thank you, Mr. Chairman. Thank you, 
Senator Byrd, for being here today and for testifying and 
testifying strongly and clearly. You have stated some things 
with great strength and clarity and I think a number of them 
deserve a response. With all due respect to the chairman and to 
Chairman Byrd, I would like to respond to those with the 
respect that is due the chairman of the Appropriations 
Committee.
    Senator, you have put forward a number of questions I would 
like to respond to in order. Senator Kennedy has put forward 
the cost of the overall bill. Several of thosefigures, of the 
total cost he has articulated, the first year cost, and the amount of 
money that is built into the current Bush budget. You had requested 
$3.1 billion total cost of the bill, $1.18 billion this year cost, 
currently built into the Bush budget, $743 million to implement this 
bill. I think those are well deserved and the Appropriations Committee 
needs to know what those numbers are, to be able to have those to 
articulate that. We need to know those before we pass an authorization 
so that you would have that information and we would have that 
information, it would be available.
    You made great strength in the point about bringing forward 
the additional funding that you had put forward for homeland 
security last year, which was applaudable on your part to bring 
that forward then. As you noted and as we did last fall, we 
passed already $40 billion additional after the September 11 
attack quite rapidly, $40 billion, a very large sum of money 
that was for the implementation and the efforts to deal with 
the terrorist attack, to deal with the efforts in Afghanistan. 
That was a substantial sum of money by anybody's regard and the 
administration felt at that time, and I agreed with the 
administration at that time, that we should digest that and 
that issue and that amount of funding first before we would 
look at other tranches to be brought on forward. The 
administration----
    Senator Byrd. How is that such a partisan issue, Senator? 
Why was it so partisan?
    Senator Brownback. Why did the Democrats not vote with the 
President at that time? He was saying that----
    Senator Byrd. We gave him $40 billion in three days.
    Senator Brownback. That is the point. He was saying, we 
have $40 billion to be able to work with in dealing with. They 
wanted some more time to be able to figure out what else was 
actually needed.
    Senator Byrd. And they are asking in the supplemental 
appropriation bills for the same amount of money, practically, 
that they opposed back then.
    Senator Brownback. And they may be looking at this time and 
saying, Senator Byrd had much of it right. Some of it, we do 
not agree in the areas that he wants to go in. I cannot speak 
for the administration on that point. At the time, what they 
were saying, that I agreed with, was that $40 billion was a 
substantial sum of money to work with----
    Senator Byrd. It was.
    Senator Brownback [continuing]. And that they wanted to be 
able to work with that first and then to determine what else 
was needed after the implementation and the spending of that.
    Senator Byrd. And the Senator----
    Senator Brownback. I think that is a wise course of action, 
just to take the effort to really see, because that is such a 
large quantity of additional resources. So I thought that was a 
persuasive, and actually quite a prudent approach to take, 
because this long-term is going to be a war on terrorism. This 
is going to take us some time and we do not want to spend all 
the money up front without really thinking, where is it we are 
going? We were not sure at that time exactly where the war on 
terrorism might take us.
    Senator Byrd. But Senator, I hope that you will lead your 
side to support the appropriations in the future for this and 
other important matters. We had a political vote and your side 
of the aisle voted like a solid wall against it.
    Senator Brownback. As yours voted the other way.
    Senator Byrd. Yes, because we were looking out for the 
security of the American people.
    Senator Brownback. Well----
    Senator Byrd. I am an appropriator, and we----
    Senator Brownback. If I could----
    Senator Byrd [continuing]. And we had good justification 
and we stated them as to why we needed more money then. But you 
voted against it----
    Senator Brownback. The administration is the one--yes, and 
the administration is the one that has to appropriately spend 
that money and they were saying at the time, we have $40 
billion additional to work with in this area. We want some time 
to think through what else it is before we spend all of the 
resources on down.
    Senator Byrd. Well, Senator, I----
    Senator Brownback. I am hopeful that at this point in time, 
we can take appropriate steps to gather and get the resources 
that are needed, and you may have heard Senator Kyl before you 
came in saying that he would help in the effort to get the 
border security funds and I will be very supportive of that, as 
well. We have now had the time to be able to think about this 
and look and here is what we need to do.
    Senator Byrd. But Senator, you are one of the Senators who 
pressed me hard last year before the Congress adjourned to pass 
this bill by unanimous consent.
    Senator Brownback. Yes.
    Senator Byrd. And you are one of the Senators who voted 
against appropriations for border security.
    Senator Brownback. I voted for----
    Senator Byrd. You cannot deny it.
    Senator Brownback. I voted for----
    Senator Byrd. You have got it on the record.
    Senator Brownback. And I voted for the $40 billion 
additional dollars.
    Senator Byrd. Oh, yes. We all voted for that.
    Senator Brownback. And I do not deny that, as well. Ivoted 
$40 billion, and I think this is a prudent course to follow, a prudent 
course to follow.
    Senator Byrd. Well, let me say this to you, Senator. You 
are on the committee. I am not. But if you expect to close a 
loophole, if you expect to close the loophole, if we pass the 
appropriations and if the INS can meet our mandates, we will if 
we pass the appropriations needed and if the INS can meet the 
mandate. I hope you will be there voting for the appropriations 
when we need you.
    Senator Brownback. On that issue, I will be, and the figure 
is, as I mentioned, $1.18 billion for this year. I do not mean 
to be so direct and confrontational with the chairman of the 
Appropriations Committee, but your comments have been very 
direct and I think they deserve a direct response.
    Senator Byrd. Absolutely. I stood on the firing line over 
there and I took the criticism, and I heard the talk shows 
around the country saying that Senator Byrd is holding up the 
border security bill. I do not know who started that junk. I 
was not holding it up. I just wanted the American people to 
hear the debates and I wanted Senators to have an opportunity 
to offer amendments, and I did a service to the Senate. I 
really did you a service when I held that up. To pass a mammoth 
bill, a far-reaching bill--we do not know the costs of it even 
today--by unanimous consent is a charade. That is a joke. I 
have no apologies for holding it up.
    Now, I may support this bill, depending on what it looks 
like when we come to vote, but I want to thank the chairman and 
I want to thank all of you for finally having at least one 
hearing, and certainly for your courtesy in inviting me to 
come.
    Senator Brownback. Mr. Chairman, in continuing on this, and 
again, I mean to be very respectful to Senator Byrd for all he 
has done for this country, last fall was an extraordinary 
period of time for this country. I do not think any of us would 
deny that. We passed rapidly several pieces of legislation last 
fall, some without any hearings whatsoever.
    I recall vividly the Friday of the week of September 11. We 
passed legislation giving the President the authority to move 
forward on attacks in Afghanistan, a strong piece of 
legislation, and I was----
    Senator Byrd. Sometimes we can act in too great a hurry, 
Senator.
    Senator Brownback. I understand, but if I could make my 
point on this, as well. We passed several enormous pieces of 
legislation last fall and needed to, and needed to for the 
security of the country and for the fight on terrorism. We 
passed a bill authorizing the Presidential action in war, which 
I deem to be one of the most extraordinary pieces of 
legislation that we can pass and deal with and we did that on a 
Friday after the September 11 attack unanimously in both Houses 
because we felt this country was under attack and we wanted to 
give the President the right to respond. It was an 
extraordinary piece of legislation, no hearings, very little 
discussion on the floor. It passed.
    We did the USA PATRIOT Act last year, a big piece of 
legislation, good piece of legislation to help strengthen our 
security. I do not know if it had any hearings. It had a broad 
set of discussion of people involved in it, came to the floor, 
passed.
    We passed $40 billion of additional appropriations. I am 
not sure what all hearings took place, very little discussion 
on the floor, passed and it went on through. One day, it was at 
$20 billion. The next day, it was at $40 billion.
    Senator Byrd. That was in the wake of a terrible, 
devastating attack.
    Senator Brownback. Precisely my point. Precisely my point.
    Senator Byrd. But we have got time here on this bill.
    Senator Brownback. We are getting to the end of the year--
--
    Senator Byrd. We have got time.
    Senator Brownback. If I could finish this one point, 
precisely my point. It was a devastating attack and it was the 
right thing to do, and you as chairman of the Appropriations 
Committee, I applaud you for getting that done at that point in 
time.
    We are members of the Immigration Subcommittee here and we 
saw and see and continue to see a hole, and we were saying at 
that point in time, sir, please let us get this passed because 
it is an extraordinary period of time in our country's history. 
We need to be able to get this narrow gap and start to deal 
with it, and that is why we were pleading with you in an 
extraordinary manner and in an extraordinary time to do 
something that we continue to believe and deem to be necessary 
for this country.
    So while we can dispute the way things moved forward at 
that time, I do not think we can dispute the need for things to 
move forward at that time in a rapid fashion. The country and 
the world was calling upon us to act and we needed to act, and 
that is why so many of us implored you so heavily at that point 
in time to be able to get this legislation on through.
    I have great respect for you. I have great, deep respect 
for your position, your knowledge, your abilities, your service 
to this great country. I will never question that and I will 
never question you about any of that. Buton this, we felt, as 
members of this subcommittee, as you as chairman of the Appropriations 
Committee felt like this was desperately needed at that point in time.
    Mr. Chairman, I would just conclude by saying that at this 
point in time, I would hope that maybe we could look at that as 
saying, okay, we had differences at that point in time. This is 
where we are now and the matter continues to need to go on 
through and I will be supportive of the funding to implement 
this legislation.
    Senator Byrd. Mr. Chairman, if I may respond briefly----
    Chairman Kennedy. Sure.
    Senator Byrd. That was $40 billion that was needed 
immediately following a devastating attack on our homeland and 
we wanted to give to the President whatever money he needed to 
deal with that emergency. But this bill is years away from 
being implemented. It is not going to be implemented tomorrow, 
and you are going to find that there are questions that are 
going to be asked about this bill.
    How do you arrive at these costs? How do you arrive at 
these deadlines? Why do you pick October 26, 2003? Why not 
October 27? Why not October 25? Why not October 21? Why October 
26? There are other questions that I could raise.
    I am just here to point out that this committee is wise in 
having a hearing and there needs to be other hearings. This 
bill is going to be a long time being implemented. We have got 
lots of questions concerning the INS, and to pass a bill by 
unanimous consent in the time it takes to snap your finger on 
the Senate floor, as far-reaching as this bill is, would be a 
charade. It would not work. What are the American people going 
to say when they think they had something good, they thought we 
passed legislation to deal with border security, and it is full 
of holes, or at least has holes in it?
    That is what I was trying to save you from and the others 
of us in asking that we have debate, we have at least a chance 
to offer an amendment. And, thank God, we are going to have 
that chance. Your chairman and I have insisted on having at 
least an opportunity to debate and an opportunity to amend.
    Chairman Kennedy. Senator Feinstein.
    Senator Feinstein. Thanks very much, Mr. Chairman.
    Senator Byrd, thank you so much for being here this 
morning. I, for one, appreciate hearing your concerns. I am one 
that has supported you. I am a member of your Appropriations 
Committee. I do not believe I have ever voted against an 
appropriation in this area, nor do I intend to. So as far as I 
am concerned, the record is pretty clear there.
    We have really worked very hard on this piece of 
legislation and you have heard some numbers this morning which 
I am sure your committee has. As I understand it, of the $3.1 
billion total cost of implementation of this bill, these are 
INS figures. We have them before us. The $1.1 billion cost of 
this year's figures, of the money that is in the Bush budget, 
which is $753 million, that would leave $188 million that we 
would need to come up with.
    I believe that I have been given some numbers, and you 
would be the ultimate authority on this, and your staff, but my 
understanding is of the $20 billion of the $40 billion that is 
discretionary, all but $327 million of it has been allocated. 
So there is $327 million that remains which could cover the 
remaining cost of this.
    I am of the view, however, that proper homeland defense is 
going to take a lot more than what is in this bill and that 
members have to be aware of that and willing to appropriate it. 
I think of the $10 billion in the contingency fund in the DOD 
bill, some of that ought to go into homeland defense and I 
think that is just my view.
    But what I want you to know is that I will work with you in 
any way you so order to see that these funds are present. I 
view nothing we do as important as homeland defense. So I just 
want to give you my pledge to work with you as an appropriator 
to come up with whatever monies are necessary to carry out what 
we must do.
    Senator Byrd. Thank you.
    Chairman Kennedy. Thank you very much.
    Senator Kyl.
    Senator Kyl. Thank you, Mr. Chairman, and thank you, 
Senator Byrd, for being here to testify. I think the best thing 
in your statement is the fourth paragraph, which reads, ``I 
firmly believe that the Senate needs to pass legislation to 
tighten our immigration and border security laws,'' and I 
really do look forward to working with you. I have talked to 
you about that and I know of your commitment to do this. No one 
should question that. Your concerns were primarily procedural, 
and I appreciate that.
    I would like to address three or four things you said and 
then ask you to respond to them, if you would.
    First of all, you made the point--not first, but you did 
make the point that this bill is not the final answer and you 
are absolutely correct about that. We believe this is a very 
important first step. I also agree with you that it is going to 
take a long time to implement, at least different parts of it, 
but our view is we should get started now because of that and 
because we do not want anybody sneaking into this country in 
the meantime when we have not closed these loopholes.
    You also made the point that we all need to support the 
appropriations for this and I could not agree with you more. I 
wish you had been here when I made my little speech beforeabout 
leading that effort. I have never voted against a C-J-S appropriation 
bill, to my knowledge, in either the House or the Senate. In fact, 
every year, I have made requests that the committee did not choose to 
fund for law enforcement operations, including at the border.
    The amendment that Senator Feinstein and I got adopted when 
I first came to the Senate for adding more border security, we 
fought for every year because frequently the administration 
would not ask for the money. We had to come to the committee, 
and in most cases your committee funded it, if not at 100 
percent, at least to the extent that you could.
    So I think my record in supporting appropriations in this 
area is 100 percent and you have my absolute commitment to seek 
the funding because you are right. Without the funding, this 
cannot work, and I agree with you on that.
    To the point about reforming the INS before closing the 
loopholes, obviously, INS needs reforming, and I should not say 
in the worst way, it needs reforming in the best way. But I 
think we cannot afford to wait and that we can do both at the 
same time with good Congressional oversight, including from the 
Appropriations Committee. I just think we cannot afford not to 
do so.
    I will not go over the discussion you had with Senator 
Brownback except to say that from your own figures, my 
understanding is that about $14 billion of the $15 billion on 
top of the $40 billion that President Bush had agreed to was 
not for funding relating to the items in this bill and, 
therefore, I would hope that you at least agree that we could 
agree to disagree about the other $14 billion and the timing of 
that particular funding.
    Senator Byrd. No, I disagree with that. I disagree with it.
    Senator Kyl. Well, by your own numbers, $1.1 billion of the 
$15 billion you sought related to items in this legislation, 
which would mean $13.9 billion would not, and----
    Senator Byrd. Senator, I also tried to keep our promise to 
New York.
    Senator Kyl. Well, fine. I tried to do that, too.
    Senator Byrd. Because of the points of order that your side 
raised and you voted for, we did not have the money to keep our 
promises to New York or to deal with border security or with 
homeland defense.
    Senator Kyl. Senator Byrd, the only point I was making here 
is to point out that the additional $15 billion that you sought 
over the $40 billion which the President supported, of that $15 
billion, I was just pointing out that about $14 billion of the 
$15 billion did not have anything to do with this legislation. 
I just wanted to make it clear----
    Senator Byrd. Well, it had to do with homeland security.
    Senator Kyl. By your definition, that was correct. I just 
wanted to make it clear that we were not voting against--in 
voting against that $15 billion in additional expenditure, we 
were not voting against the appropriation for this legislation, 
which had not yet been passed.
    Senator Byrd. We will look at the facts again. I do not 
believe what you are saying is accurate.
    Senator Kyl. Okay. We will----
    Senator Byrd. You are partially accurate.
    Senator Kyl. We will look at your statement.
    Senator Byrd. You are partially accurate.
    Senator Kyl. Fine. Let me just conclude with this. It is 
true this bill did not come out of the Judiciary Committee, 
although we did have hearings both in this subcommittee and in 
the subcommittee that Senator Feinstein chairs and on which I 
am ranking member. But we felt this was an emergency and I 
would note that there is other legislation that no Senator 
objected to consideration that did not come through committee, 
including the legislation on the floor today, the energy bill. 
It did not come through the Energy Committee, of which I am a 
member. And the stimulus package----
    Senator Byrd. We are not talking about the energy bill, 
Senator.
    Senator Kyl. I understand. The stimulus package did not 
come out of the Finance Committee, of which I am a member. Two 
very important bills, they did not come out of the committee, 
but I did not raise the objection to consideration of the 
legislation that the majority leader wanted to consider because 
they were important pieces of legislation.
    Senator Byrd. Well, that is for you to do or not do.
    Senator Kyl. I appreciate that. I am simply making the 
point, Senator Byrd, that a lot of times, bills do not come out 
of committee and there are reasons for that. We have a right to 
object to it or not object to it, but it is not something as a 
generic proposition that is either always right or always 
wrong.
    Senator Byrd. I did not say it was. I am not talking about 
generic propositions. I am talking about a specific situation.
    Senator Kyl. And I appreciate the fact that there was no 
objection posited to the consideration of this bill starting 
this morning. We had, at least I had suggested to you that we 
could consider the bill, get a unanimous consent to consider 
the bill without a time limitation, and I understand that is 
what the unanimous consent is that we will be operating under 
today.
    Senator Byrd. May I speak to that?
    Senator Kyl. Absolutely.
    Senator Byrd. There was a very serious objection lodged to 
the bill that came over from the House. This is not that bill. 
Senator Kennedy and I have talked about this bill. I have no 
objection to taking up this bill. I said so a long time. But I 
think questions ought to be raised. I do not think you can 
answer the questions that I raised about these deadlines and 
about the amounts of money. What will this bill cost? These are 
questions I think we need to raise. As I said, I may vote for 
this bill in the final analysis, depending on how it looks at 
that point. I am not speaking about generics.
    Listen, Senator, I have been here 50 years. I can talk 
about all the generic approaches you want to talk about. I have 
seen legislation passed in many ways. I have seen many 
approaches.
    But on a matter of this importance, this far-reaching 
importance, on a matter that is going to cost millions, 
hundreds of millions, perhaps billions of dollars, we need to 
stop, look, and listen, ask questions, offer amendments, and 
then act, if we can.
    Senator Kyl. And Senator Byrd, we are very pleased to have 
that opportunity starting this morning at 11:30. Take whatever 
time is necessary to discuss it. We had that opportunity on 
this exact bill last December and it was not taken. Now, with 
our----
    Senator Byrd. We did not have that opportunity. I objected 
to taking up this bill last December and I have already said 
why. I do not think we have to go over that again.
    Senator Kyl. I appreciate that fact. What I was saying is 
that we have the opportunity to move forward on the bill, 
originally with the unanimous consent request acceptable at the 
desk, and later we suggested let us take up the bill and have 
an opportunity to debate it. I appreciate the fact that you 
were not ready to do that at that time.
    But we can do it now and I think it is important for us to 
have whatever debate members want to have on it because it will 
illustrate that there are loopholes that need to be filled, 
that, as has been testified to this morning, these are pretty 
good provisions to fill those loopholes, that we need to get 
started on them, and it will also make the point that you made 
that it is going to require cooperation of this Congress to 
provide the funding for it, and those of us who are supporting 
it are going to have to commit to support the funding for that, 
as well.
    As I said before, I will commit to you to support that 
funding in order to make this work and hope that we can get 
started on it as soon as we can. And again, thank you for being 
here this morning.
    Chairman Kennedy. Thank you very much.
    Senator Byrd, thanks very much for being here. I think we 
all understand your position----
    Senator Byrd. Are you through with me?
    Chairman Kennedy. I am never through with you----
    [Laughter.]
    Chairman Kennedy [continuing]. But I think you are through 
with us. We will stand in recess----
    Senator Byrd. Senator.
    Chairman Kennedy. Senator.
    Senator Byrd. I just want to put a postscript in at this 
hearing that if Senators had voted with me last December, the 
money would already be in the pipeline. The money would be in 
the pipeline. But funds appropriated in December, some of those 
funds have still not yet been released by the administration.
    I have been holding hearings, too. The Appropriations 
Committee has been holding hearings yesterday and the day 
before with respect to the budget for homeland security and we 
find that funds appropriated last December by our committee and 
by the Senate are still not being released by the 
administration. So that is one thing we might want to recall.
    I thank you, Mr. Chairman, for having this hearing and I 
thank all members for their attention and for their presence 
today.
    I may say to Mr. Brownback and Mr. Kyl that having been 
around here 50 years, I can put my arm around your shoulder 
when we walk out of this room. As majority leader and having 
worked in the majority leadership for 22 years on that Senate 
floor, I spoke plainly, other Senators spoke plainly, and that 
is the only way to speak. That does not mean I carry any emnity 
toward you at all. I may join with you on the next bill. I may 
be your best friend on the next bill.
    Senator Brownback. I hope so.
    [Laughter.]
    Senator Byrd. I have found through my long experience that 
the Senator who votes against me today may be the Senator who 
will save me tomorrow. I have found that many times over the 
years.
    Senator Kennedy, I especially want to thank you for your 
courtesies, for your coming to my office, for the discussions 
we have had on this bill, and as I say, I want to support this 
bill although there are questions we still need to answer. I 
think some of the deadlines are impossible to meet and we need 
to know more about what the costs may be. It is unfortunate 
that we do not have the CBO's figures and estimates and 
recommendations on this. But anyhow, thanks for a good morning 
and I hope you will have a good weekend.
    Chairman Kennedy. Thank you very much.
    Senator Brownback. Mr. Chairman, Senator Hatch wanted me to 
submit his statement for the record.
    Chairman Kennedy. It will be so admitted.
    Senator Brownback. Thank you.
    [The prepared statement of Senator Hatch follows:]

                  Statement of Senator Orrin G. Hatch

    Thank you, Mr. Chairman, for holding this hearing today. I also 
wish to thank both the Chairman and the Ranking Member of the 
Immigration Subcommittee, as well as Senators Kyl and Feinstein, for 
their hard work on the Enhanced Border Security and Visa Entry Reform 
Act. This legislation is very important and I hope that this hearing 
will take us one step closer to finally getting it passed by the Senate 
and sent to President Bush for a signature.
    The Enhanced Border Security and Visa Entry Reform Act makes a 
number of very common-sense reforms that will close loopholes in our 
immigration law, procedure, and practice that have provided terrorists 
access to our country in the past. First, it strengthens our initial 
lines of defense--the borders and our embassies abroad--by providing 
additional staff and training to more effectively screen visa 
applicants. Moreover, it breaks down some of the barriers that have, to 
date, prevented a comprehensive data sharing operation between 
intelligence agencies, law enforcement, the State Department, and the 
Immigration and Naturalization Service and compels the use of biometric 
technology to enhance our ability to confirm the identity of those 
seeking admission into our country. Finally, the bill makes meaningful 
changes to the foreign student program. In short, a student will no 
longer be able to roam about the country without the INS knowing that 
he or she is not attending school.
    So why do we so desperately need the bill? Consider that Hani 
Hanjour, one of the nineteen hijackers involved in the September 11 
attacks, was stopped for speeding on August 1, 2001, in Arlington, 
Virginia. Mr. Hanjour earlier entered the United States on a student 
visa, but had never attended even a single class, thus violating the 
terms of his status and thereby making him deportable from the United 
States. Had the data-sharing operation compelled by the Enhanced Border 
Security bill been in effect at the time of his traffic violation, 
local law enforcement would have been notified of his unlawful presence 
in the United States and would have taken him into custody. He would 
have, then, been in similar circumstances to Zacarias Moussaoui, the 
believed twentieth hijacker, who was detained at an INS facility in 
Minnesota at the time of the attacks. Certainly the brave souls aboard 
Flight 93 that crashed in rural Pennsylvania or, indeed, any of the 
other victims aboard any of the other planes would have welcomed the 
absence of another of Osama Bin Laden's agents of hell.
    Also, consider the events of this a few weeks ago when the INS 
improperly admitted 27 crew members of a vessel for shore leave. Four 
of the individuals, all Pakistani, never returned. It has since been 
discovered that because an INS inspector entered an improper birth date 
for one of the four men, the man was permitted to enter the United 
States notwithstanding an earlier immigration violation in Chicago. 
Again, had the provisions of the Enhanced Border Security bill been in 
effect, that man would have never been able to enter the United States. 
Specifically, the retrieval of his records would not have been 
contingent solely upon the entering of his actual birth date but, 
rather, any number of variations of his name. His prior immigration 
violation would have likely been discovered and the man would have been 
denied entry. No one knows whether his intentions in hiding out in our 
country are evil, but we must now wonder and do our best to track him 
down.
    This should not be a controversial bill. The Enhanced Border 
Security and Visa Entry Reform Act enjoys the broad, bipartisan support 
of nearly 60 senators. The House of Representatives has passed it twice 
and the Bush Administration is supportive as well. It does not make 
sense that a bill designed to make such critical improvements and with 
this kind of support could have languished for so long in the Senate. 
While I recognize the right of every Senator to contribute to, further 
investigate, and even oppose any legislation, I cannot help feeling 
frustrated when a bill of this magnitude is held up for over three 
months with almost no comment or justification. In cosponsors alone, 
this bill has almost enough support to defeat a filibuster, and yet, 
Senate leadership has failed--to this point--to put it to the floor for 
a vote. I am very pleased that the Border Security bill has finally 
been placed on the schedule and will be debated later today. Clearly, 
the time has come for the Enhanced Border Security and Visa Entry 
Reform Act to be passed by the Senate without further delay.
    Thank you again, Mr. Chairman, for holding this hearing. I am 
confident that you will continue to work toward passage of this 
legislation and I look forward to working with you and the other 
sponsors in this endeavor.

    Chairman Kennedy. I would like to submit the statement of 
Senator Leahy for the record.
    [The prepared statement of Senator Leahy follows:]

    Statement of Senator Patrick Leahy, Chairman, Senate Judiciary 
                               Committee

    I applaud Senator Kennedy for holding this hearing today, and for 
his work with Senators Feinstein, Brownback, and Kyl in developing and 
introducing S. 1749, the Enhanced Border Security and Visa Entry Reform 
Act. I am one of 58 proud cosponsors of that bill, which has commanded 
extraordinary bipartisan support and the sponsorship of most of the 
members of the Judiciary Committee. I am pleased that the House has 
already passed H.R. 3525, which is modeled on S. 1749, and that the 
Senate will be taking up border security legislation today.
    As a Senator from Vermont, I know what a serious issue border 
security is. For too long, Congress has taken a haphazard approach to 
border security, meeting many of the needs of our southwest border but 
neglecting our border with Canada. Since the terrorist attacks of 
September 11, we have taken a far more comprehensive approach. Congress 
took its first steps to strengthen our borders in the USA Patriot Act, 
which authorized tripling the number of Border Patrol personnel, INS 
Inspectors, and Customs Service agents serving along our northern 
border, and $100 million in funding for improved technology for the INS 
and Customs Service's use in monitoring the border. As the author of 
those provisions, I am pleased that the Administration has requested 
substantial increases in funding for border security personnel. I urge 
the Congress not only to support those requests, but to ensure that the 
northern border receives at least half of any new supply of border 
security enforcement officers.
    The legislation before us today builds on the first steps taken in 
the USA Patriot Act to strengthen substantially the security of our 
borders. It will further increase the number of INS Inspectors and INS 
investigative personnel, and authorize raises for Border Patrol agents 
and inspectors so that we can retain our experienced border security 
officers, who have been so overworked over the past seven months. The 
bill also authorizes funding for training of INS personnel for more 
effective border management, and for improving the State Department's 
review of visa applicants abroad. In addition, it authorizes $150 
million for the INS to improve technology for border security, another 
important follow-up to the USA Patriot Act.
    Beyond authorizing badly needed funding for our borders, this 
legislation includes a number of important security provisions, a few 
of which I would like to highlight today. First, it requires the 
Attorney General and Secretary of State to issue only machine-readable 
and tamper-resistant visas, and travel and entry documents using 
biometric identifiers, by Oct. 26, 2003. They must also have machines 
that can read the documents at all ports of entry by that date. Second, 
the bill requires the Secretary of State to establish terrorist lookout 
committees within each U.S. mission abroad, to ensure that consular 
officials receive updated information on known or potential terrorists 
in the nation where they are stationed. Third, the bill will foster 
information sharing between other government agencies and the State 
Department and INS, and shorten the deadline established in the USA 
Patriot Act to develop a technology standard to identify visa 
applicants. Fourth, the legislation requires all commercial vessels or 
aircraft entering or departing from the United States to provide 
complete passenger manifests. Fifth, this bill would substantially 
strengthen existing law for the monitoring of foreign students. The 
government would be required to collect additional information about 
student visa applicants, and educational institutions would be 
obligated to report visa holders who did not appear for classes. In 
addition, the INS Commissioner would perform periodic audits of 
educational institutions entitled to accept foreign students.
    I hope that this hearing will clarify any concerns Senators may 
have about border security legislation, as passage of this bill would 
show that the protection of our nation and our borders remains a 
fundamental priority for this Congress.

    Chairman Kennedy. Statements of other Senators will be 
included, as well.
    The committee stands in recess. Thank you.
    [Whereupon, at 10:42 a.m., the subcommittee was adjourned.]
    [Submissions for the record follow:]

    [GRAPHIC] [TIFF OMITTED] T5885A.001
    
    [GRAPHIC] [TIFF OMITTED] T5885A.002
    
    [GRAPHIC] [TIFF OMITTED] T5885A.003
    
    [GRAPHIC] [TIFF OMITTED] T5885A.004
    
    [GRAPHIC] [TIFF OMITTED] T5885A.005
    
    [GRAPHIC] [TIFF OMITTED] T5885A.006
    
    [GRAPHIC] [TIFF OMITTED] T5885A.007
    
    [GRAPHIC] [TIFF OMITTED] T5885A.008
    
    [GRAPHIC] [TIFF OMITTED] T5885A.009
    
    [GRAPHIC] [TIFF OMITTED] T5885A.010
    
    [GRAPHIC] [TIFF OMITTED] T5885A.011
    
    [GRAPHIC] [TIFF OMITTED] T5885A.012
    
    [GRAPHIC] [TIFF OMITTED] T5885A.013
    
    [GRAPHIC] [TIFF OMITTED] T5885A.014
    
    [GRAPHIC] [TIFF OMITTED] T5885A.015
    
    [GRAPHIC] [TIFF OMITTED] T5885A.016
    
    [GRAPHIC] [TIFF OMITTED] T5885A.017
    
    [GRAPHIC] [TIFF OMITTED] T5885A.018
    
    [GRAPHIC] [TIFF OMITTED] T5885A.019
    
    [GRAPHIC] [TIFF OMITTED] T5885A.020
    
    [GRAPHIC] [TIFF OMITTED] T5885A.021
    
    [GRAPHIC] [TIFF OMITTED] T5885A.022
    
    [GRAPHIC] [TIFF OMITTED] T5885A.023
    
    [GRAPHIC] [TIFF OMITTED] T5885A.024
    
    [GRAPHIC] [TIFF OMITTED] T5885A.025
    
    [GRAPHIC] [TIFF OMITTED] T5885A.026
    
    [GRAPHIC] [TIFF OMITTED] T5885A.027
    
    [GRAPHIC] [TIFF OMITTED] T5885A.028
    
    [GRAPHIC] [TIFF OMITTED] T5885A.029
    
    [GRAPHIC] [TIFF OMITTED] T5885A.030
    
    [GRAPHIC] [TIFF OMITTED] T5885A.031
    
    [GRAPHIC] [TIFF OMITTED] T5885A.032
    
    [GRAPHIC] [TIFF OMITTED] T5885A.033
    
