[Senate Hearing 108-910]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 108-910
 
                          BIOMETRIC PASSPORTS

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



                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             SECOND SESSION

                               __________

                             JUNE 15, 2004

                               __________

                          Serial No. J-108-82

                               __________

         Printed for the use of the Committee on the Judiciary
















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                       COMMITTEE ON THE JUDICIARY

                     ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa            PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania          EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho                CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia             RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas                   JOHN EDWARDS, North Carolina
             Bruce Artim, Chief Counsel and Staff Director
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director



















                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California.....................................................    18
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     1
    prepared statement...........................................    73
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................    84

                               WITNESSES

Cantwell, Hon. Maria, a U.S. Senator from the State of Washington     2
Harty, Maura, Assistant Secretary for Consular Affairs, 
  Department of State, Washington, D.C...........................     7
Hutchinson, Asa, Under Secretary, Border and Transportation 
  Security, Department of Homeland Security, Washington, D.C.....     5

                         QUESTIONS AND ANSWERS

Responses of Maura Harty to questions submitted by Senators Kyl 
  and Chambliss (Senator Chambliss submitted a question on behalf 
  of Senator Sununu).............................................    24
Responses of Asa Hutchinson to questions submitted by Senators 
  Kyl, Leahy, and Chambliss (Senator Chambliss submitted a 
  question on behalf of Senator Sununu)..........................    58

                       SUBMISSIONS FOR THE RECORD

Cantwell, Hon. Maria, a U.S. Senator from the State of 
  Washington, prepared statement.................................    66
Harty, Maura, Assistant Secretary for Consular Affairs, 
  Department of State, Washington, D.C., prepared statement......    68
Hutchinson, Asa, Under Secretary, Border and Transportation 
  Security, Department of Homeland Security, Washington, D.C., 
  prepared statement.............................................    75





















                          BIOMETRIC PASSPORTS

                              ----------                              


                         TUESDAY, JUNE 15, 2004

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:07 a.m., in 
Room SD-226, Dirksen Senate Office Building, Hon. Orrin G. 
Hatch, Chairman of the Committee, presiding.
    Present: Senators Hatch, Kyl, Sessions, Chambliss, and 
Feinstein.

 OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM 
                       THE STATE OF UTAH

    Chairman Hatch. Good morning and welcome to the hearing on 
biometric passports. Since last fall, this Committee has held 
eight oversight hearings that substantially focus on our 
Nation's efforts to prevent and respond to terrorism on 
American soil. The purpose of these hearings is to make sure 
that the United States government is taking every possible step 
to protect this country and its citizens from the evil 
intentions of terrorists and that every available resource is 
focused toward that end. Implementation of the biometric 
passport program will be an important resource in our fight 
against terrorism and we should be vigilant in our efforts to 
fully implement this program.
    Today, we focus our attention on the biometric passport 
requirement set out in the Enhanced Border Security and Visa 
Entry Reform Act. This legislation provided crucial tools to 
tighten immigration procedures and close loopholes in our 
border security which were, in my view, of paramount importance 
after the catastrophic attacks this Nation suffered on 
September 11, 2001. I was proud to be an original cosponsor of 
this legislation and am disappointed that more than 2 years 
after its enactment, we are faced with the reality that the 
biometric passport deadline of October 26, 2004, will not be 
met.
    Now, I understand that when we called for the development 
and inclusion of biometric passports, the fundamental 
technologies were not yet mature. Nonetheless, many of us 
believed that we needed cutting-edge technology in order to 
thwart the increasingly sophisticated terrorists. This mandate 
has presented difficult challenges for the many capable 
scientists and technicians who have dedicated themselves to 
this particular effort.
    But we can and must demand that the countries who 
participate in the Visa Waiver Program begin producing and 
distributing these passports. Every day that biometric 
identifiers are not utilized, our country and its citizens are 
more vulnerable to terrorist attack. So I strongly urge the 
Department of State and Department of Homeland Security to work 
with these participating countries in the upcoming months to 
establish an interoperable system for biometric passports.
    I have spoken to Secretary of State Powell concerning the 
importance of the biometric passport issue, and during his 
testimony before this Committee last week, Secretary Ridge also 
emphasized the importance of this issue. Both of these men, 
whom I highly respect, have requested a 2-year extension to the 
current biometric passport deadline of October 26, 2004. 
However, I am concerned with the national security implications 
that such a lengthy extension may cause. Frankly, I would like 
to require why a 1-year extension is not feasible for 
implementation of the biometric passport program.
    As this deadline extension has implications on our National 
security, I hope that our witnesses today can fully explain to 
this Committee the reasons for extending the current biometric 
passport deadline. I will be interested in those reasons, and, 
of course, I understand Chairman Sensenbrenner in the House 
feels somewhat strongly on this issue. On the other hand, I 
want to accommodate our public leaders who have these difficult 
jobs and do what I can to always be of assistance to them, and 
I am sure Chairman Sensenbrenner feels the same way.
    Today, the Committee will hear from two panels of witness 
testimony. The first panel consists of testimony by Hon. Maria 
Cantwell, Senator from the State of Washington. I would like to 
welcome Senator Cantwell, who was a cosponsor of the Enhanced 
Border Security and Visa Entry Reform Act. I know that she 
feels strongly about this issue and I want to thank her for 
taking time to appear before the Committee.
    I might mention that over the weekend, I did see your 
former boss, Rob Glaser of Real Networks and he said to say 
hello to you.
    Senator Cantwell. Thank you.
    Chairman Hatch. The second panel consists of testimony by 
Hon. Asa Hutchinson--Secretary Hutchinson, we are really 
honored to have you here--Under Secretary for Border and 
Transportation Security at the Department of Homeland Security. 
And, of course, we have Hon. Maura Harty, the Assistant 
Secretary for Consular Affairs at the Department of State. We 
equally welcome Ms. Harty. I welcome both of you good people to 
our Committee and appreciate your testimony on this very, very 
important issue at this very, very important time.
    With that, I will insert the ranking member's statement 
into the record and we will interrupt when he comes, but we 
will turn to Senator Cantwell until then.
    [The prepared statements of Senators Leahy and Hatch appear 
as submissions for the record.]

STATEMENT OF HON. MARIA CANTWELL, A U.S. SENATOR FROM THE STATE 
                         OF WASHINGTON

    Senator Cantwell. Thank you, Mr. Chairman, and thank you 
for the opportunity to appear before the Committee. As a former 
member of the Judiciary Committee, I miss my time being here on 
the Committee and the lively and spirited and intelligent 
debate that this Committee provides, so--
    Chairman Hatch. That is an interesting comment for somebody 
who has the experience you have. We miss you on this Committee, 
too. We wish you were back.
    Senator Cantwell. Thank you, Mr. Chairman. I appreciate the 
opportunity to testify this morning because the need for 
greater border security became a glaringly evident issue in the 
Northwest in 1998 when Ahmed Ressam, a terrorist trained at one 
of the Osama bin Laden training camps in Afghanistan, was 
arrested shortly after crossing the Canadian border at Port 
Angeles, Washington. Explosives and other bomb materials were 
found in the trunk of Ressam's car. Ressam's plan was to head 
to Los Angeles and blow up LAX airport. But thanks to the hard 
work of Diana Dean, the U.S. Customs Inspector, the terrorist 
was apprehended.
    This frightening incident made it clear, the 
vulnerabilities we face along the porous Northern border and 
the vulnerabilities that became even more concerning after the 
September 11, 2001, terrorist attacks. But the Ressam case 
raised important questions about our international standards.
    Ressam began his journey on a French visa, leaving Algeria 
and landing in Versailles. Ressam came to the United States 
after creating a trail of fraudulent documents on his journey 
from Algiers to the United States, first obtaining a French 
passport on the basis of a fake French birth certificate. He 
then entered Canada under his own name, seeking refugee status. 
While living in Canada, he used a false baptismal certificate 
to obtain a Canadian passport under an alias.
    An international biometric standard for visas would have 
identified Ressam the first time he tried to enter France. The 
identification would have become traceable when he entered 
Canada and then the United States and could have been more 
easily stopped. Obviously, we can't always count on the good 
work of our Border Patrol to stop every individual, so this 
information is paramount.
    That is why I worked with you, Senator Hatch, and Senator 
Leahy, in the Patriot Act to establish the technology standard 
for the U.S. visa program. Those provisions, Section 403(c) of 
the Patriot Act, called for a technology standard to facilitate 
a comprehensive screening of visa applications at our overseas 
consulates and to access the necessary law enforcement, watch 
list, and intelligence information at our consular offices and 
at border crossings, and the verification of identifying 
persons crossing our borders being the same people who obtained 
the travel documents.
    In the Enhanced Border Security and Visa Entry Reform Act 
of 2002, I also worked with this Committee and Senators 
Kennedy, Feinstein, Brownback, and Kyl to include in Section 
603 a requirement that the Department of Homeland Security 
coordinate with this same technology requirement in the Patriot 
Act to work with Canada, Mexico, and the 27 visa waiver 
countries. This would implement standards for visa programs 
that could be compatible with those adopted in the United 
States.
    More simply said, we must recognize that we need 
international cooperation to be successful with our visa 
technology standard. It must be compatible with our own. This 
would enable us to catch the Ressams of the world at a sooner 
place in time, before they got to the United States.
    The problem begins in the United States. The requirement of 
the visa technology standard, like the passport standards, have 
not been met and that is the subject of this hearing. Congress 
required that the visa standard be set by 2003. In a report 
issued in November of 2002, the National Institute for 
Standards and Technology, the standards body for creating the 
standard, recommended a dual biometric for visas, fingerprints 
and facial recognition.
    With the U.S. VISIT program, the Department of Homeland 
Security has begun to implement a national biometric program 
using dual biometrics, but the biometrics chosen do not allow 
for searching FBI or Interpol databases, and perhaps that can 
be commented on later, but that is my understanding. More 
analysis should be done on what is the appropriate standard to 
maximize international cooperation and international 
information.
    The Department of State and Department of Homeland Security 
must make it a priority to establish U.S. standards and to work 
with the international standards setting organization. This 
ISO, which is a network of national standard institutes from 
148 countries and the International Civil Aviation 
Organization, can work to help us implement these standards.
    We need to stop terrorists before they are at our borders. 
In fact, we should be working first, which I believe the State 
Department will testify, in those seven states that the 
Department has listed as terrorist states in establishing these 
visa technology standards. Then we must set a priority in 
working with the 27 waiver countries, that they also adopt 
these standards so that they again can make sure that people, 
as in Ressam's case, starting in a country, then entering one 
of those 27 waiver countries and then coming to the United 
States, are stopped at an earlier point in time.
    The 19 hijackers that perpetrated the attack on the United 
States on September 11 had submitted 24 visa applications, 
receiving 22 tourist visas and one student visa. The 19 entered 
the United States a total of 33 times before flying airplanes 
into the Twin Towers and the Pentagon. We need to do a better 
job at getting the technology and securing our visa process 
with these international countries.
    I am glad that the Committee is taking a closer look at 
this issue. I look forward to hearing the testimony of both the 
agencies that are presenting today and hoping that this visa 
standard can be met in the near future. There are obviously 
significant challenges to meeting that standard and there are 
concerns about this delay. I am suggesting just one issue that 
the Committee might consider, and that is that we continue to 
have a six-month update by this Committee until we actually get 
the standard in place and encourage the Committee to continue 
to work on the oversight as it relates to setting an 
international standard that hopefully can maximize the use of 
the Interpol data so we can catch these people, as I said, 
before they reach our borders.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Cantwell appear as a 
submission for the record.]
    Chairman Hatch. Thank you. I appreciate your testimony. I 
know you are an expert in this area and it means a lot to us 
that you would take time to come see us.
    Any questions from anybody?
    [No response.]
    Chairman Hatch. With that, we are glad to have had you 
here.
    Senator Cantwell. Thank you, Mr. Chairman.
    Senator Sessions. Senator, I thank you very much for 
coming. You indicated that--I don't know if you want to talk 
about it now--it is important, your comment that FBI and 
Interpol databases may not be accessible under some of the 
proposals that are out there. I think that is real important. 
Do you agree?
    Senator Cantwell. Yes, I do, and I think that there is more 
progress being made by companies working on an international 
standard with that ISO organization, and the question becomes, 
do we have a standard that we set in the United States that is 
compatible in accessing all that information. While today we 
might only want to access, say, our FBI files, it would be an 
interesting question whether Mr. Ressam, starting in Algiers, 
would have been in the Interpol database already on something 
else. Obviously wanting to stop people at point of origin as 
opposed to the point of entry into the United States would be a 
better process, so getting that standard.
    Chairman Hatch. Thank you, Senator Cantwell.
    Senator Cantwell. Thank you.
    Chairman Hatch. We really appreciate your taking time from 
what we know is a busy schedule.
    Senator Cantwell. Thank you, Mr. Chairman.
    Chairman Hatch. Thank you. If we could have our good friend 
Asa Hutchinson, Under Secretary for Border and Transportation 
Security, Department of Homeland Defense, and Hon. Maura Harty, 
who is the Assistant Secretary for Consular Affairs in the 
Department of State, come to the table. We appreciate having 
both of you here, and again, I would like to welcome both of 
you.
    Secretary Hutchinson is a former member of Congress with 
distinguished service on the House Intelligence and Judiciary 
Committees. I also understand that Secretary Hutchinson, at the 
age of 31, was appointed U.S. Attorney for the Western District 
of Arkansas. At that time, if I recall it correctly, you were 
the youngest U.S. Attorney in the country.
    We also welcome Secretary Harty, who has honorably served 
our country for over 20 years in the Foreign Service and was a 
former U.S. Ambassador to the Republic of Paraguay. We admire 
your dedication, Ms. Harty, and your service to our country and 
look forward to your testimony here today.
    Under Secretary Hutchinson, you can proceed with your 
opening statement.

   STATEMENT OF ASA HUTCHINSON, UNDER SECRETARY, BORDER AND 
   TRANSPORTATION SECURITY, DEPARTMENT OF HOMELAND SECURITY, 
                        WASHINGTON, D.C.

    Mr. Hutchinson. Thank you, Chairman Hatch, distinguished 
members of the Committee. It is a pleasure to appear before you 
to discuss the Department's commitment to enhance the security 
of our citizens, our international visitors, and our Nation 
through the use of biometric technology. It is a pleasure to 
appear with Maura Harty, my good friend and partner in this 
endeavor from the Department of State.
    I would emphasize that it is important that we work through 
our partnership in the international community to integrate the 
biometric technology into passports and travel documents in 
accordance with international standards, best practices, and 
our own statutory requirements. The involvement and cooperation 
of the 27 countries that comprise the visa waiver program are 
critical to establishing an effective system for managing the 
entry and exit of millions of travelers each year.
    The use of biometrics, including digital finger scans and 
photographs, is consistent, in my judgment, with the values and 
character of our Nation and our commitment to enhance security 
while facilitating legitimate trade and travel, respecting 
individual rights and privacy, and maintaining positive 
relations with our allies. Also, it helps us to effectively use 
our taxpayer dollars.
    For that reason, I would like to reiterate the 
administration's request for a 2-year extension of the deadline 
for the visa waiver program countries to issue machine-readable 
passports. As you known, the program enables citizens of 
certain countries to travel to the United States for 90 days or 
less without obtaining a visa. And while visa-less travel 
encourages travel and trade with our allies, it also makes the 
program attractive to those who wish to avoid visa security 
checks conducted at our consular offices and even would be an 
invite for terrorists.
    Congress has addressed this security vulnerability by 
requiring visa waiver program countries to issue tamper-
resistant machine-readable passports, including biometric 
identifiers, in accordance with international standards. While 
most countries have initiated programs to meet the current 
deadline, very few, if any, countries will be in a position to 
issue passports in that time frame, and this is due in most 
cases not to a lack of will or commitment to enhanced security, 
but a result of technical or scientific challenges.
    The Department of Homeland Security must also implement a 
system to process those passports by the October 26 deadline. 
We will not be in a position to biometrically compare and 
authenticate those travel documents due to immense technical 
challenges, including the need to test and develop a system 
that will rely upon a single type of machine reader to process 
passports from 27 countries. We prefer not to develop a reader 
or multiple types of readers for different passports that are 
issued by the 27 different countries.
    Based upon information provided by these countries as well 
as the Department of State's experience, we believe that all 
countries can be compliant by November 30, 2006, and it should 
be a hard and fast deadline. Extending this date will also give 
the Department enough time to rigorously test the equipment and 
technology, and it is important, I believe, for us to get this 
process right the first time and not to spend additional time 
and resources to correct mistakes that might have been avoided.
    During this time, we do need to enhance security, and for 
that reason, we are expanding our U.S. VISIT enrollment to 
include visitors under the visa waiver program beginning in 
September. As you know, the U.S. VISIT system, for the first 
time in our country's history, allows us to biometrically 
confirm the identity of foreign visa travelers at our ports of 
entry. We believe processing these visitors under U.S. VISIT 
enhances our security, and by expanding it to visa waiver 
countries gives us some additional security capabilities.
    It allows us to, through the biometric check, to check 
their identity against lookout databases that we have 
available. It also allows us to freeze the identity of the 
traveler and tie that identity to the travel document. It 
allows us to determine whether the traveler complied with the 
terms of his or her admission, previous admission, and in using 
that identity. We can collect arrival and departure information 
of travelers and update their records and their immigration 
status while they are in the U.S. We can determine if they have 
overstayed their visas. And obviously, we can give checks of 
their biometrics and biographic information against additional 
security databases that we have to assure that they are not a 
threat to the United States.
    Since we implemented this on January 5, we processed over 
five million visitors. We have matched over 579 persons against 
criminal databases and prevented more than 196 known or 
suspected criminals from entering the country. Adding the visa 
waiver program countries will add an additional 13 million 
visitors to the system. I believe that we can do that 
successfully. We have that in plan by September 30. We believe 
the 2-year extension will be helpful for us to meet our mutual 
objectives of security, cooperation with our allies, and an 
appropriate use of the taxpayers' dollars.
    Thank you, Mr. Chairman.
    Chairman Hatch. Thank you, Secretary.
    [The prepared statement of Mr. Hutchinson appears as a 
submission for the record.]
    Chairman Hatch. Ms. Harty, we will take your testimony.

  STATEMENT OF MAURA HARTY, ASSISTANT SECRETARY FOR CONSULAR 
         AFFAIRS, DEPARTMENT OF STATE, WASHINGTON, D.C.

    Ms. Harty. Thank you, Mr. Chairman, for the opportunity to 
testify today on the administration's request for a 2-year 
extension of the 10/26/04 deadline for inclusion of biometric 
features in passports issued by countries which participate in 
the visa waiver program. I also would like to report on State 
Department's progress in developing our own biometric passport.
    The inclusion of biometrics in international travel 
documents to verify the identities of prospective travelers to 
our country is a critical step in improving our border security 
and as part of our collective effort to combat terrorism. 
Naturally, the inclusion of biometrics in our passport is not 
the only step we are taking to enhance the security of our 
borders. We are working hand-in-hand with our friends and 
colleagues at the Department of Homeland Security to improve a 
multi-layered and interlocking system of border security 
through greater information sharing among agencies and with the 
VWP governments, through enhanced passenger screening and pre-
clearance measures, and through DHS's recent decision to expand 
the U.S.-VISIT program to include visa waiver country 
travelers.
    State and DHS are currently in the middle of a 
Congressionally mandated biennial review of the VWP countries, 
assessing their compliance with the terms of the program and 
the criteria established by Congress. At all visa adjudicating 
posts overseas, consular officers have pushed our borders out 
beyond physical limits as a nation. They are seeing people well 
before they ever begin their travel, and through our Visa Viper 
programs overseas, every element of an embassy contributes to 
reporting on anyone who might be in a position to do this 
country harm.
    As you know, the Enhanced Border Security Act (EBSVERA) 
established 10/26/04 as the deadline by which travelers 
entering the U.S. under the Visa Waiver Program must present 
passports that incorporate biometric identifiers that comply 
with the ICAO standards. In May of 2003, ICAO decided to make 
facial recognition encrypted on contactless chips the globally 
interoperable, standard passport biometric. Thus, visa waiver 
program countries had 17 months from that date to bring a 
biometric passport from design to production.
    EBSVERA does not provide a waiver of that provision, and 
few, if any, of those countries will be able to meet this 
legislatively mandated deadline. Although the countries are 
committed to deploying biometric passports, they are 
encountering the same technical difficulties and scientific 
issues that we have encountered.
    The challenge given the international community by the 
Congressional mandate is a daunting one. There are complex 
issues with which we are well familiar, including the security 
of the passport data on the contactless chip and the 
international interoperability of readers and biometric 
passports, which we and our VWP partners have continued to work 
through together.
    In May of 2004, ICAO established the technical standards 
for the interoperability of contactless chips and passport 
readers at ports of entry and the technical specifications for 
protecting passport data from unauthorized use. As a result, 
manufacturers can now begin producing passport readers that 
will be able to read multiple chips. Each country can now begin 
to do their program and put their passports together and test 
them in real world scenarios.
    Now that the questions of global standards and 
interoperability have been laid to rest, we and the VWP 
countries can begin full development and deployment of our 
respective programs. Given the time that it has taken to 
resolve these technical complex issues, as I have said, few of 
the visa waiver countries, if any, will meet the deadline. In 
fact, it is not a question of ill will. It is very much a 
question of difficult science.
    Although the legislative requirements do not pertain to the 
U.S. passport, we recognize that in our roll as leaders, we 
would or should do the very same thing and lead the way and 
demonstrate that this passport technology that is being 
required of them would be something that we would also engage 
in, and as I have mentioned earlier, we have run into the same 
problems that they have.
    In regard to our own progress, we expect to be able to 
produce the first operational biometric passport this December. 
It won't be en masse, but we will have one by Christmas here in 
Washington. We will then expand our program to official and 
diplomatic passports so that we have a sizeable number of 
passports to use as we sort of work through the program and 
make sure that our technology is intact and functional. We will 
then expand it more broadly in February of 2005 to our Los 
Angeles passport agency and we will work with Australia and the 
travelers themselves to make sure that these passports are, in 
fact, interoperable in every way.
    Given our own experiences with respect to building a 
biometric passport program, sir, we believe that there are 
compelling reasons to extend the deadline to November 30, 2006, 
as the administration has requested. Failure to extend the 
deadline will have some serious consequences for the country as 
well as the Department of State, and we can certainly go into 
those, sir, as you so desire.
    I would like to add to what Under Secretary Hutchinson has 
already said and to encourage the Committee to please consider 
the 2-year deadline that we have previously requested. I thank 
you for your time.
    Chairman Hatch. Thank you so much.
    [The prepared statement of Ms. Harty appears as a 
submission for the record.]
    Chairman Hatch. Mr. Secretary, it is my understanding that 
the chosen biometric for this program is facial recognition, 
whereby a biometric photo is stored in a chip. The chip is then 
embedded in the individual passport. Now, I understand that 
this biometric standard was adopted by the International Civil 
Aviation Organization. I want to ask you just two questions.
    Number one is, how reliable is this facial recognition 
biometric? And number two, does the chip have the ability to 
take on other biometric recognition features, such as 
fingerprints or any other, should the visa waiver countries 
choose to implement additional features for more enhanced 
security in the future?
    Mr. Hutchinson. Thank you, Mr. Chairman. You are correct 
that ICAO, the International Civil Aviation Authority, did meet 
in May and set the standard, where we are grateful that they 
acted quickly after some international pressure to move in this 
direction.
    You asked about the reliability of the current standards 
and the chip technology. First of all, the facial technology is 
not fully developed. It is sufficient for one-to-one matches so 
that you can use it to confirm identity, which is the 
overarching purpose of this initiative. It is not sufficient in 
accuracy to do a one-to-many match which gives you the 
capability through facial recognition to check databases. We 
are hopeful that that technology will improve as time goes on.
    In addition, the chips have a lifespan currently of three 
to 5 years. As you know, in many instances, the passports are 
issued for six to 10 years. So right now, you will be adding a 
chip on there that has a shorter life span than the life of the 
passport itself, and this is again an area that we hope that 
industry will be able to improve their technology in reference 
to.
    So we believe that we have standards that are well set, but 
we thought we had the standards well set a year or so ago and 
we recognize after testing that they were not sufficient. They 
came back and redefined those. We hope that the testing this 
time will show that everything is appropriate and ready to move 
forward.
    Chairman Hatch. I know you are aware that just yesterday, 
the House passed a 1-year extension for the full 
implementation--full implementation of the full biometric 
program, or passport program. Now, you both have requested that 
this should really be 2 years. The Secretary of State made that 
case to me, as well, because of the technological challenges 
which you are outlining here today.
    Are both of you saying that it is impossible to fully 
implement the program within the 1-year time limit that the 
House has set? Maybe, Secretary Harty, you would want to 
comment on that.
    Ms. Harty. I appreciate the question, sir. While I regret 
having to say that something is impossible, we have been told 
by almost all of the countries that they cannot get it done 
within a year. As I have already admitted, in our own program, 
we will get a passport done, a small number of passports done 
by the end of the year. But to go into mass production simply 
isn't possible in a 1-year time frame.
    One of the things that we are very concerned about is that 
we truly would like to measure twice and cut once, that we 
would truly like to also be good stewards of our programs and 
our shared responsibilities for border security, but also 
taxpayer dollars. We would like to get it right and we have 
heard this over and over again from our VWP partners. We would 
not like to rush into getting it wrong.
    Chairman Hatch. I know you have tried hard, really hard, to 
put this together, but how receptive are the visa waiver 
countries to our efforts to implement this program in an 
expedient manner? Are there any countries that have given you 
resistance to accomplishing this?
    Ms. Harty. No, sir. I don't think there is resistance at 
all. There is a tremendous ``can do'' spirit. We have seen it 
at ICAO. We have seen it at G-8. We have seen it in multiple 
international fora. We bring the visa waiver country embassies 
into the State Department all the time and talk through this. 
There is a tremendous desire to do it, and I think that the 
events in Spain of March 11 only punctuated the need to do just 
exactly this kind of thing.
    And it is not restricted to the visa waiver countries, sir. 
We are very, very regularly approached by other countries who 
do not yet have machine-readable passports who also want to 
increase and enhance the validity and safety and security of 
their own documents. This is a tidal wave of good will. But the 
science has proven more difficult than we realized, as Under 
Secretary Hutchinson said.
    Chairman Hatch. My time is up, but Secretary Hutchinson, 
you indicated you wanted to talk about that?
    Mr. Hutchinson. Mr. Chairman, I think that Ms. Harty is 
correct that the countries are willing to proceed down this 
path, and some with great enthusiasm. Others, as we have gone 
through the assessments of who should be renewed for the visa 
waiver country program and where they are in the level of 
compliance, we look at how developed their program is in this 
regard and some of them, yes, we have a program which is 
primarily a plan to move forward when the standards are set. So 
there are varying levels.
    I think the leadership of the United States has been 
essential in this arena and the Congress of the United States, 
and I think your original question was whether anybody could--
is it possible to do it within a year. Australia has taken the 
lead on that and really been aggressive in this arena and we 
are entering into testing with them, with Australia, New 
Zealand, Japan, and Germany. But the testing pattern is, like, 
next June. So that is a very short time frame for procurement 
after a June couple-month test. Even the most aggressive would 
have a difficult time doing it within 1 year.
    Chairman Hatch. Thank you. I am going to turn to Senator 
Chambliss, and I am going to ask Senator Chambliss if you will 
continue to chair the hearing and follow up with the rest of 
the Senators here. You might want to take this chair here.
    Thank you. I appreciate both of you coming.
    Senator Chambliss. [Presiding.] Thank you, Mr. Chairman, 
for calling this hearing on an issue that is critically 
important, not just to the United States but to 27 other 
countries, as well. Both you Secretaries, we appreciate your 
diligent work on this issue.
    Secretary Hutchinson, as you know, myself along with 
several other Senators on this Committee have introduced 
legislation to extend the time frame for the implementation of 
these new biometric visas by 2 years. I know there are some 
valid reasons why, from a homeland security standpoint, that 
you have requested it--you, as a part of the administration, 
have requested that. Let me ask you two questions in that 
regard.
    First of all, can you explain the various security 
measures, such as machine-readable passports, the passenger 
manifest agreement, and the lost and stolen passports database, 
that will essentially fill the gap as biometric passports are 
being implemented.
    And secondly, I know you are aware of the Inspector 
General's report that has recently come out and has been 
somewhat critical of this process. Would you tell us what steps 
you have taken to ensure the overall security program since the 
Inspector General's report came out, please.
    Mr. Hutchinson. Thank you, Senator Chambliss. In reference 
to the Inspector General's report that was on the visa waiver 
program and the capability, really, of the Department of 
Homeland Security to conduct the assessments, really, at the 
time that report was issued, it was really outdated because 
many steps had been taken in the interim and it was not very 
timely.
    We have submitted to the Inspector General, I presume with 
a copy to the Senators that have inquired, our responses in 
detail to the recommendations that were made. One of the 
recommendations, for example, was that there be a responsible 
program office in the Department. That has been established 
within my directorate.
    Secondly, they recommended that visa waiver countries be a 
part and enrolled in U.S. VISIT, our biometric check. That has 
been done. It is being done by September 30.
    And so I believe those have been addressed. We have a very 
vigorous program. Our goal is to have all the assessments done 
by September 30. We are on target to do that. We have 
completed, I believe, well over half of the site assessments, 
working with the Department of State. So that review is in 
place.
    In addition, of course, we are continuing to enhance our 
security capabilities overall, from the manifest checks on the 
flights. We have an initiative with Interpol and our European 
colleagues on lost and stolen passports and utilizing Interpol 
as a database for exchange of information on lost and stolen 
passports. We have those also bilaterally with the different 
countries so that we have access to that information.
    So we are continuing to enhance security even through our 
visa waiver country programs while we are continuing the 
assessment as to whether they should continue in that program.
    Senator Chambliss. Ms. Harty, do you have any additional 
comments along those lines?
    Ms. Harty. Thank you, sir. I agree with everything that 
Under Secretary Hutchinson just said. The advance passenger 
screening, machine-readable passports, which will all be 
required by this October, PNR, sharing of lost and stolen 
passport data are all things that add to what we are aiming 
for, which is a depth of security. This is like an onion that 
we are building rather than peeling, and as many ways as we can 
add layers of that onion and increase the degree of scrutiny 
which as a Government we apply to travelers, as well as the 
degree of difficulty to a maleficent traveler, is what we are 
working on every day together.
    I would also like to add that in regular conversations with 
our VWP allies, they agree with those aims and goals. And so as 
we scrutinize our systems, so are they doing the same thing as 
they look at how they issue passports to their own nationals, 
visas and those kinds of things.
    Senator Chambliss. Have you given the 27 countries 
benchmarks to which they must comply by a certain date, and if 
so, how are they progressing on those benchmarks?
    Ms. Harty. We have a series of benchmarks, sir, that we 
have developed. It is a rather lengthy list, but we haven't put 
times to it. We haven't put specific dates to it. But we would 
go back to them quarterly to make sure that they know what the 
benchmarks are and so that we could see progress therein, yes, 
sir.
    Senator Chambliss. Okay. If we extend this by a year versus 
the 2 years, is the likelihood that we are going to be back 
here pretty high, Senator Hutchinson?
    Ms. Harty. We wouldn't want to be doing that, sir. As we 
talked last year, 1 year ago, about the machine-readable 
passport issue, which did have an attendant ability by the 
Secretary of State to extend, we said last year that we would 
go back to the countries once with respect to the machine-
readable passport requirement and we would not come back to the 
Senate and ask for another extension. We did not. We will not, 
even though there may be one country that has a problem with 
that. We were clear. We set a benchmark, and we would not back 
down from that. I would assume that we would be doing the same 
thing with this, sir.
    I think that we can see, not only through the benchmarks 
and the process that we will go through over the next, I hope, 
2 years to get everybody on board on the program, that there 
won't be any surprises, that countries will communicate with us 
as we will with them and we will know every step of the way. We 
will also be able to make better judgment on where to expend 
our resources with respect to any country that might not be 
able to, despite the increased 2-year deadline, make it. They 
will just need visas after that, sir.
    Mr. Hutchinson. Mr. Chairman?
    Senator Chambliss. Yes?
    Mr. Hutchinson. Could I quickly respond on that, as well? I 
think if there was a 1-year extension, where we would be in a 
year is that we would be back here reporting that some 
countries have moved forward quickly in compliance. They will 
all have a program, but they will not be issuing the biometric 
passports. We will have just completed the testing phase.
    Probably the greatest concern would be that some countries 
might move forward because of that deadline with technology 
that has not been sufficiently tested, that would not be in 
line with the international protocols, that would wind up 
having something out of sync which would have to be redone and 
would also put a question mark for our ports of entry, that we 
might have to develop readers for someone that developed their 
biometric passports early without sufficient testing and there 
is a potential for some waste of money in that process, in 
getting it wrong.
    Senator Chambliss. Thank you. Senator Sessions?
    Senator Sessions. Thank you, Senator Chambliss.
    I am concerned about the ability to access the databases, 
particularly with regard to the visa waiver countries and ICAO, 
the International Civil Aeronautics Organization's regulations 
about their adoption of a facial standard. First, let me ask 
you, Secretary Harty, ICAO is basically a private organization 
of people involved in aviation that we have--
    Ms. Harty. It is an international organization, sir, and 
while there may be some private representatives there, every 
government sends a--every member sends an official government--
    Senator Sessions. And we pressured them, as I understand 
it, to come forward with a biometric and they said, okay, 
facial. But the problem is, facial is not scientifically 
achievable at this moment and facial is unconnected to this 
tremendous worldwide databank we have of fingerprints. So we 
have created a facial identifier that is valid for the purpose 
of determining whether or not the entering person is the same 
person holding the passport, but we haven't dealt with any 
ability to identify those who have records internationally or 
in the United States of criminal activities.
    This is a huge expense. If everybody in the world is going 
to rush off into this facial idea that may not prove to be 
practical, it may not prove to be scientifically achievable. As 
a matter of fact, one major CEO that was in my office and 
somehow we talked about this subject and he said to me, we 
chose not to bid on it because we are not sure, this world-
class high-tech company, he said, we are not sure we can 
achieve it. We don't want to end up having false positives and 
people complaining at us that your system fails. And so we just 
didn't even bid.
    So I guess, Mr. Hutchinson, on the law enforcement side, 
can't we go back and challenge and urge ICAO to adopt a 
fingerprint standard that is already in existence worldwide, 
that we have the proven technology to make it work, and 
wouldn't that give us a protection that this facial system 
would not?
    Ms. Harty. Sir, may I answer it, as well?
    Senator Sessions. Yes.
    Ms. Harty. Thank you. ICAO took quite a bit of time to come 
up with the facial recognition standard. It was a difficult bar 
for them to get over. A number of issues came up. The first of 
those, or one of many, I should say, was the question of what 
the biometric would be. Lots of people thought, let us look at 
fingerprints, let us look at hand geometry, let us look at iris 
scans.
    The reason that they went first with facial recognition was 
they have--every member country has experience collecting 
photographs because they do that already for passports. The 
facial recognition technology, as Under Secretary Hutchinson 
already mentioned, is, in fact, pretty good on one-to-one, 
which is matching me with my passport, the traveler with the 
traveler's document. The traveler, of course, goes through 
immigration and customs in many places, border control, before 
they leave their own country, entry controls in another 
country. At each of those border points, there is, of course, 
access to Interpol information, another layer of that onion, if 
you will.
    But ICAO was also concerned that some countries might want 
to do more and so they have also acknowledged that other 
countries might want to collect fingerprints, other countries 
might want to engage in further studying of iris scans. With 
respect to fingerprints--
    Senator Sessions. My time is about up--
    Ms. Harty. I am sorry.
    Senator Sessions. Let me ask this. I understand ICAO took 
this option, but it is a no-deal option.
    Ms. Harty. Well--
    Senator Sessions. You are not going to really help us 
identify whether or not the person coming in that airport is a 
fugitive from the United States that fled the country or was 
deported after having been convicted of a felony. It won't pick 
that up because our database is not facial. Our database is 
fingerprint. As the former prosecutor knows, every policeman in 
America can access anybody and put their fingerprints in a 
system and on a short notice determine whether or not a warrant 
is out for his arrest. You can't do that with a face.
    And these countries, it seems to me, have an interest, Mr. 
Secretary. They don't want criminals coming into their country. 
They don't want fugitives fleeing their country. Aren't we 
making a big mistake not to push real hard right now to just 
make this a fingerprint standard?
    Mr. Hutchinson. Senator, we agree that, first of all, 
fingerprints should be a significant part of the international 
criteria for security. We have implemented finger scans through 
U.S. VISIT. So we have that protection in the United States. 
But it would also be helpful, as other countries issue 
passports and travel documents, that they put facial 
recognition in there, but also another biometric of finger 
scans or iris scans. Finger scans, obviously, because you have 
got databases of that collected of criminals around the world.
    ICAO did allow that as a secondary. We would like to move 
the international community to make that mandatory, as well, in 
the future. Obviously, we don't have a consensus in the 
international community to do that at this time, but there 
certainly would be the law enforcement benefit to do that.
    Senator Sessions. The FBI Director, Mr. Mueller, said there 
has got to be interoperability and expansion of the system 
ourselves, working with the Department of Homeland Security, to 
be on the cutting edge of the use of fingerprints in all of its 
manifestations. I asked him about that--that is in response to 
my question--and he was firm that fingerprints had to be the 
critical part of the system, in his view.
    Mr. Hutchinson. We are in agreement on that. The chip 
standard that is set by ICAO has a sufficient capability to add 
additional biometrics as those standards are more refined. So, 
I mean, first of all, Congress set ICAO as the standard to 
follow.
    Senator Sessions. That was a Congressional act?
    Mr. Hutchinson. Yes, that was a Congressional act, to tie 
this to ICAO.
    Ms. Harty. Yes.
    Mr. Hutchinson. And so ICAO--
    Senator Sessions. I am not surprised.
    [Laughter.]
    Mr. Hutchinson. --couldn't do it unilaterally. We have got 
to do it together.
    Senator Sessions. Maybe we need to undo that. I mean, it is 
great to get their opinions and their feedback, but ultimately, 
it is our borders that we are monitoring.
    Thank you, Mr. Chairman. I went over.
    Senator Chambliss. Let me just, before we leave that and go 
to Senator Kyl, U.S. VISIT does require fingerprinting, 
correct?
    Mr. Hutchinson. Absolutely.
    Senator Chambliss. And in that particular instance, we use 
those fingerprints to track potential criminals or somebody who 
has a criminal record and may be trying to get back in here. 
How does that correlate to the use of the visa waiver program?
    Mr. Hutchinson. Under U.S. VISIT, right now, all visa 
travelers, as they come into our ports of entry, our airports, 
will give their travel document. We will also check their 
biometric, their two finger scans to make sure it is the same 
person that the State Department, the consular office has 
issued the visa to, because they took the same biometric and we 
have it online transferred to our port of entry. So we have got 
a one-to-one check. In addition, we will check it against the 
databases for criminals, visa overstays, immigration violators, 
and terrorists.
    When we add the visa waiver countries on September 30, that 
same security fix will be in there. The only difference is that 
we do not have their identity frozen, or their identity 
verified by the issuance of visas at the consular offices. We 
check it and it is enrolled the first time and it is frozen 
whenever they come into our port of entry.
    So we use the fingerprints very effectively in U.S. VISIT. 
I think the only difference, what we are talking about, is if 
it was an international standard that if it was a French 
passport, for example, we would have the identity, the 
biometric, the fingerprint embedded in that French passport. 
That way, it is an additional security check that would be in 
place as they came in. That way, we can check the fingerprint 
of the person who is coming into that port of entry against the 
one who the passport was issued to, and that is a huge security 
benefit.
    So we have built the first layer. There are probably 
additional layers we can build in the future.
    Senator Chambliss. Senator Kyl?
    Senator Kyl. Thank you, Mr. Chairman. Let me just pursue 
this same line of questioning. In the briefing to staff, I was 
informed the Department of State did not even raise at the ICAO 
meetings the use of the fingerprint as the biometric 
identifier. Is that correct?
    Ms. Harty. Over five years ago ICAO, in its New 
Technologies Working Group (NTWG), began looking at biometrics 
for use in tying a person irrevocably to their document. The 
events of September 11, 2001 and the subsequent U.S. 
legislation for VWP countries to incorporate biometrics into 
their passports motivated increased activity in developing 
biometric studies and programs. In June of 2002, the ICAO NTWG 
endorsed unanimously the use of facial recognition as the 
globally interoperable biometric for machine-assisted identity 
confirmation with machine-readable documents. the BTWG also 
recognized that some ICAO member states might elect to use 
fingerprint and/or iris recognition as additional biometrics. 
Fingerprints were not favored as the primary biometric since 
many believed the technology raised social and privacy 
concerns. Furthermore, fingerprints are not currently collected 
as part of the passport application process; to collect 
fingerprints would require a new enrollment structure that 
would be expensive and would require in-person enrollment. The 
NTWG recognized that facial recognition could meet the business 
needs of most States in terms of verifying that the person 
carrying the passport is the person to whom the government 
issued the passport. In reaching these decisions, ICAO 
observed:
        }Photographs of the face do not 
        disclose information that the person does not routinely 
        disclose to the public.
        }The photograph is socially and 
        culturally accepted internationally.
        }The public is aware of its use for 
        identity verification purposes.
        }It is non-intrusive.
        }Many member States have a legacy 
        database of facial images captured as part of the 
        digitized production of passport photos, which can be 
        encoded into facial templates and used for identity 
        comparison.
    In May 2003 ICAO adopted a global, harmonized blueprint for 
the integration of facial recognition into passports. In May 
2004, ICAO adopted refined standards for incorporating facial 
images into the chips to be included into the documents.
    Section 303 of the Enhanced Border Security Act of 2002 
which required VWP countries to produce biometric passports 
relied on the ICAO standard; VWP countries have already 
invested considerable time and money in biometric passport 
programs based on the U.S. legal requirement and ongoing ICAO 
discussions of the issue. Inclusion of fingerprinting as a 
mandatory ICAO standard at this point would further delay the 
introduction of biometric passports and would also lead to a 
reciprocal requirement for U.S. citizens to provide 
fingerprints.
    Senator Kyl. All right, because clearly, it is something 
that we would have wanted to pursue, it seems to me, for the 
reason that the Secretary just pointed out. What percentage, 
roughly, of the people coming into the United States today and 
the people leaving today are covered by U.S. VISIT?
    Mr. Hutchinson. Well, to give you an idea of the numbers, 
we have, I think it is 23 million visa travelers. We are adding 
13 million visa waiver travelers just to our airports and 
seaports. That is 36 million. We have a couple hundred million 
that come in each year. Those are through our land ports of 
entry, which we will be having U.S. VISIT apply to by the end 
of this year at the 50 busiest ports. So we are gradually 
building on the land side. But right now, it is probably, all 
total, up to 25 percent would be my rough estimate. I would be 
glad to get you more specifics.
    Senator Kyl. I realize it is a very rough estimate. The 
point I was trying to make is just in a notional way that maybe 
a quarter of the people are being checked today and it is going 
to take quite a long time for it to expand to the full number 
of people that we would like to have the U.S. VISIT program 
apply to, both entry and then exit.
    Any estimate with respect to how we are coming along on 
that, assuming you get the appropriations you need from 
Congress, how long it will take to get to 100 percent coverage?
    Mr. Hutchinson. Well, our deadline is the end of this year, 
50 land ports of entry, and then a comprehensive system by the 
end of 2005. That is going to be a very difficult, challenging 
deadline to meet. We are committed to doing that. And that will 
not give us necessarily a biometric check of every person who 
comes across the land borders. You can imagine the complexities 
there. But it will give us, hopefully, the capability of 
checking in, checking out every international visitor, which is 
a huge step forward in terms of determining visa overstays.
    Senator Kyl. The key point that I would like to make to 
both of you is that there are questions about whether or not we 
have tried hard enough to get our friends in other countries to 
meet the compliance date. We understand that it is impossible 
to meet the date. We need more time. You have in place a series 
of checks, milestones to meet. I think it is critical that you 
supply that information to us on an ongoing basis so we know 
how it is going. Some members want to suspend the visa waiver 
for any country until it actually complies. I mean, that is the 
kind of thing you are facing here. So I think you have got to 
figure out a way to keep us informed of how well you are doing 
with both the carrot and the stick.
    I also want to ask you a question with regard to one 
country of particular concern. Ms. Harty, you were kind enough 
to respond yesterday to a letter that I had sent on May 5 
regarding statistics for those who want to visit from Saudi 
Arabia, the statistics on the applications there, and it 
appears to me, based upon these statistics, that there is about 
an 85 percent visa grant rate at the present time. If that is 
incorrect, tell me.
    I don't know how that compares to the rates in some other 
countries and I would like to ask you to give me some 
information in that regard. My understanding is that refusal 
rates, for example, for Egypt and Yemen before September 11 
were about 40 percent, and if we are granting 85 percent of 
Saudi nationals at this point, that seems to me to be a very 
interesting statistic. Could you shed some light on that for 
me?
    Ms. Harty. Sure. I would be happy to, sir. If you look at 
fiscal year 2001 of those statistics I gave you, the number of 
non-immigrant visas issued in fiscal year 2001, we issued 
45,411 visas to Saudi nationals. In fiscal year 2003, which is 
the most recent, obviously, complete year that I have, we 
issued 9,862. You have seen such a precipitous drop-off in the 
number of Saudi travelers to this country. What you have seen, 
I think, in the largest measure is people who used to come 
here, as I have heard all over the country, sir, people who 
used to come here as students, people who used to come here for 
medical treatment, people who used to come for tourism.
    I will have to check it and dig down a little bit, sir, but 
my hunch here is that that less than 10,000 that we issued in 
fiscal year 2003 represents people who are coming here in 
official capacities. We have, until fairly recently, done quite 
a bit of training of Saudi military officials in this country--
    Senator Kyl. Excuse me for interrupting, but because of the 
time, really, my question, if I could, Mr. Chairman, if you 
would indulge me, with regard to these statistics, first of 
all, you have to add the two columns, issued and refusals 
overcome in order to get the total number granted, right?
    Ms. Harty. Yes. I just couldn't do the math quickly enough.
    Senator Kyl. Right. And secondly, what I am focusing on is 
not how many Saudis want to come here and are granted a visa 
but how many refusals there are.
    Ms. Harty. Right. No, no, I understand that. What I was 
getting at, the last point I would have made there, sir, is 
that these represent, I believe in large measure, folks that we 
had a U.S. Government interest in having in the country, the 
people we were bringing here to train and people on sort of 
official sponsorship of one kind or another. An awful lot of 
personal preference travel from Saudi Arabia is just gone. We 
are just not seeing it. But I can dig down for you, sir, and we 
will get you a little more.
    Senator Kyl. Excuse me, Mr. Chairman. If I have additional 
questions--and I appreciate the information--
    Ms. Harty. Of course.
    Senator Kyl. I will give those to you in writing and you 
can respond. Thank you very much.
    Ms. Harty. Okay. Thank you, sir.
    Senator Chambliss. Senator Feinstein?

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

    Senator Feinstein. Thank you very much, and I am sorry I 
couldn't be here. I had an amendment on the floor, Mr. 
Chairman, but I want to welcome Mr. Hutchinson and Ms. Harty to 
the Committee and use my time really to indicate to you, 
because you have been listening in the past and I very much 
appreciate that, I think the visa waiver program is the soft 
underbelly of our Nation's guard against terrorism efforts.
    We know that slightly below 200 people who are criminals 
have used the program to come into the country. We know that 
among them were a number of terrorists, from Ramzi Yousef to 
Mr. Moussaoui. And we know that about 13 million people from 27 
countries come in.
    As a member of the Intelligence Committee, I happened 1 day 
to run across a classified FBI memo which discussed stolen 
travel documents from a visa waiver country, and I believe you 
know to what I am referring. Well, then right after that, 
shortly thereafter, I read the Office of Inspector General, the 
OIG report on the visa waiver program, which pointed out its 
weak management, its sloppy organization, really the inability 
to even know whether people leave the country.
    As I began to talk about it, of course, I began to get 
calls. Oh, you can't do anything about it, you know. This will 
hurt our business. At the same time, those things that this 
Committee talked about, and I have been on the Immigration 
Subcommittee and the Judiciary Committee for 12 years, was the 
biometric passport, and I remember the discussions. We asked 
the Department, how long will it take, and they gave us a time 
and then we even built into that an extra period of time.
    Well, that time went by. We have extended it 1 year. Now we 
have another request to extend it another 2 years. I am really 
worried because of the specific nature and numbers of stolen 
travel documents, and particularly when they are counterfeit-
proof, what is going to happen. So I am concerned about 
continuing a program where we can't really, except by manual 
means, even intercept those fraudulent passports, according to 
the OIG report, and then very often when we do and it is a 
counterfeit passport, it is given back to the individual and 
the reason is so they can get back in their country.
    Well, it seems to me if you are using a stolen passport, 
there ought to be a penalty for that. I, for one, am not 
concerned about facilitating the user back to his or her 
country. It seems to me that person ought to be taken into 
custody, and if the laws need to change to do that, we ought to 
do it. But as long as we have a laissez-faire system with 
respect to the use of stolen passports, and I don't believe for 
a minute that a user of a stolen passport doesn't know that it 
is stolen.
    So I have been thinking, now should I stir the pot by 
introducing legislation to put a moratorium on the program 
until the management reforms called for by the OIG are in 
effect, until we know we have got the passport stipulations of 
the legislation in place, and until we can say to the people of 
America, we can account for everybody that comes into this 
country and we know they leave and we know they are legal and 
bona fide. If you would like to answer that, I would be happy 
to hear the answer to it.
    Mr. Hutchinson. Senator, I would be grateful for the 
opportunity. We share your concerns on security. Our response 
has been a very aggressive and, hopefully, thorough approach to 
enhancing the security in terms of our visa waiver country 
travelers, both by enrolling in U.S. VISIT effective September 
30, and you did point up very appropriately the comments of the 
Inspector General. We take that report very seriously. I signed 
off on a response to each of the recommendations on May 27.
    Many of the criticisms that were leveled have been 
addressed. For example, the oversight, the visa program office 
has been established within my directorate. We are aggressively 
pursuing the site visits with the Department of State. We have 
completed 12 site visits of the visa waiver countries. Two are 
in progress. The rest are scheduled and will be completed by 
July 15. We are on target to complete the assessment, which 
will be the first assessment by the Department, by September 
30.
    In terms of the passports, again, you are absolutely 
correct. That is a serious concern. That is one of the 
requirements to be a visa waiver country, they have good 
reporting capability for stolen passports. We have that 
information. When it is provided to us, it is given to our 
inspectors at the ports of entry. We certainly, if somebody 
travels here, I think there is a little bit of a misperception 
that we actually physically give it back to the traveler to 
return home. It is delivered separately to the law enforcement 
officials on the other end, is my understanding of it, and we 
certainly should not be giving it back to them.
    Senator Feinstein. I think you ought to check that out, 
because Secretary Ridge was before us and he said that was the 
reason that the passports were given back to the individual.
    Also, just in this report, it indicates that even when the 
stolen serial numbers are known, unless it is manually picked 
up--and this report is just a month old--unless it is manually 
picked up, it goes by the by.
    Mr. Hutchinson. Correct, Senator. That needs to be 
improved. We are working on a data sharing arrangement with 
Interpol and our European colleagues. So there will be a 
database that will electronically transfer the stolen passport 
information. We do have, as they reported, it is put into our 
system. We do need to enhance that. That is one of the 
arrangements that we hope to have with our European colleagues 
in reference to Interpol.
    So again, I would simply agree with many of the security 
concerns that you expressed. I think you have to answer a 
fundamental question: Should you cancel a program or whether 
you should enhance the security to make it effective. Until 
Congress directs otherwise, we are working very hard to make it 
more secure.
    Senator Feinstein. What should we do with someone who uses 
a forged or stolen passport?
    Mr. Hutchinson. I would--well, you have got a couple 
questions there. By and large, I think it should be presented 
for prosecution to the U.S. Attorney, and you certainly know, 
Senator, that many of the U.S. Attorneys have guidelines that 
they are not going to prosecute that case. And so then we are 
caught with the option of letting him go free in the United 
States. We are not going to do that, so we have to return him 
at that point. So prosecutorial guidelines are an issue. Of 
course, you have some circumstances that an asylum seeker would 
have a false passport. That has to be evaluated. So we have to 
make the--but from a law and order standpoint, I would love to 
see them prosecuted whenever they come in with that.
    Senator Feinstein. Mr. Chairman, if you would just permit 
me, most asylum seekers aren't necessarily from visa waiver 
countries. Visa waiver countries are really our strongest 
positive relationships. So it is really false use of the visa 
waiver passport. And when you have many thousand of them out on 
the market, you can be sure they are being used. Otherwise, why 
steal them if you are not going to sell them? Why steal them in 
lots of thousands, including other travel documents which then 
bolster the passport and make it impossible to pick that person 
up? That is why it is an insidious situation.
    Mr. Hutchinson. There is not hardly a greater tool that 
could be used by the terrorists. If they obtain stolen 
passports, they can utilize them, but they can also sell them 
on the market and make money. So they almost get a ``two-fer'' 
for stolen passports. That is one of the reasons, of course, 
the enrollment of the visa waiver country travelers in U.S. 
VISIT, taking their biometric when they come through, is an 
added security benefit. And as we were talking with Chairman 
Chambliss, we certainly hope that, eventually, we can require 
our visa waiver countries to actually have additional 
biometrics in their passports other than simply facial 
identification that would give us even a greater security 
capability.
    Senator Feinstein. Would you support strengthening the law 
with respect to the use of a passport fraudulently in the visa 
waiver program?
    Mr. Hutchinson. Strengthen law on the use of a fraudulent 
passport?
    Senator Feinstein. That is correct.
    Mr. Hutchinson. Well, I think that we could strengthen law, 
whether it is visa waiver or otherwise. I certainly believe 
that we can look at that and should look at ways to discourage 
and to penalize those that would intentionally use a false 
passport.
    Senator Feinstein. Would you do that and make some 
recommendations to this Committee?
    Mr. Hutchinson. I would be happy to look at that and 
certainly work with the Department of State on that and provide 
a report to you.
    Ms. Harty. If I could add just one line there, I would not 
only agree with Under Secretary Hutchinson, but I would like to 
see the law for the use of a U.S. passport which might be 
fraudulently obtained or used also strengthened with stronger 
prosecutorial guidelines. Some see the use of a U.S. passport 
obtained fraudulently as nothing worse than fishing without a 
license. That is a serious issue and we would love to see those 
prosecutorial guidelines strengthened, as well.
    Senator Feinstein. Mr. Chairman, it is my view, and I would 
be interested in what Senator Sessions would think, since we 
are waiting for Senator Grassley, that if we are going to keep 
this program going, even in view of this report, and I don't 
know, despite Mr. Hutchinson's good management, I don't know 
how effectively you can move in a month to solve a lot of these 
problems, but if we are going to keep it going and actually 
extend the deadline, it seems to me there ought to be a very 
strong penalty to use a fraudulent passport, a fraudulent 
international driver's license, a fraudulent Geneva Convention 
travel document, or any other document as part of the visa 
waiver program. And the individual that does should be picked 
up coming in, should be put in jail, and should be prosecuted, 
and we ought to send that message out.
    Senator Chambliss. Let me say two things. First of all, 
before you got here, Secretary Hutchinson addressed the IG 
report and there have already been some corrections made, 
actually before, I think, the report came out. I know you and I 
had some conversations about that and I wanted you to be aware 
of some of those changes that have been made.
    Secondly, I don't think there is any question but that 
anybody who uses a stolen or fraudulent passport seeking to 
come into the United States is coming here up to no good. Times 
have changed. It used to be that we didn't need to be as 
concerned as we do now. We know that on September 11, we should 
have been more concerned about that. I think you are absolutely 
right that it behooves us to consider some strengthening of the 
criminal action that is available to prosecutors for folks who 
are caught using false stolen passports, as you say, driver's 
licenses, Geneva Convention documents, whatever.
    I would be very receptive to any recommendations that 
either State or Homeland Security or the Justice Department has 
in that respect. I think it ought to come from all three of 
you.
    Senator Sessions. Mr. Chairman--
    Senator Chambliss. Senator Sessions?
    Senator Sessions. Following up on Senator Feinstein's 
suggestion, while we act like United States Attorneys get to 
set prosecutorial policy, they are appointed by the President 
of the United States to carry out his policies. Mr. Hutchinson 
was one. I served one 12 years. If the President says, 
prosecute document fraud cases, if the Department of Homeland 
Security goes to the Attorney General and says, we want to see 
some of these cases prosecuted, they will be prosecuted.
    Now, you go to the United States Attorney in Los Angeles 
and he thinks he is too big to prosecute a little case and he 
wants to prosecute a $100 million bank fraud. But I think that 
is the wrong way to think, because if nobody will prosecute 
these cases, they don't get prosecuted. What are they doing 
every day?
    So I do think that we need some directives from the top. I 
think the way it should occur is that Secretary Ridge should 
talk with Attorney General Ashcroft, and Attorney General 
Ashcroft needs to tell some United States Attorneys to 
prosecute these cases, and I will tell you what will happen. 
They will start talking and then you will find out who made 
these false IDs and one person is making thousands normally. So 
it is not just one case. It can eliminate whole rings of 
fraudulent document cases and create an impression around the 
world that if you get caught in the United States with a false 
document, you are going to jail. And I think the tide can be 
turned easier than some people think.
    I will just say this. These cases don't go to trial. It is 
not going to back up the whole court system. Most of them are 
going to plead guilty, Senator Feinstein. You have got them and 
the document is false. They obviously are not the same person. 
They have to plead guilty. Send them to some time in jail and 
move them out of the country. But the condition--
    Senator Feinstein. Now, it is--
    Senator Sessions. --should be they should tell where they 
got that document so we can follow up on it.
    Senator Chambliss. I think you are probably right that when 
they do catch them with them, they just don't let them in the 
country and they send them back--
    Senator Feinstein. Right.
    Senator Chambliss. --and you are exactly right. We need to 
send a strong, clear message. If you try to come in here with a 
fraudulent, stolen passport, you are going to be prosecuted and 
you are going to jail. It is simple enough. It is much harder 
to enforce, though, I expect, Secretary.
    Does anyone else have any questions? We have got ten 
minutes left on a vote.
    [No response.]
    Senator Chambliss. If not, Secretary Hutchinson, Secretary 
Harty, thank you very much for being here. We appreciate the 
work that you folks are doing down there. We know it is 
difficult and tedious, but there is no more important time in 
the history of our country for the work that you are now doing 
and we look forward to continuing to work with you. Thank you 
very much.
    The Subcommittee is adjourned.
    [Whereupon, at 12:20 p.m., the Subcommittee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]


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