[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
_____
U.S. GOVERNMENT PRINTING OFFICE
28-598 WASHINGTON : 2006
_________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government
Printing Office Internet: bookstore.gpo.gov Phone: toll free
(866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2250 Mail:
Stop SSOP, Washington, DC 20402-0001
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.]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]