[Senate Hearing 108-302]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 108-302

    NOMINATIONS OF MICHAEL J. GARCIA TO BE ASSISTANT SECRETARY FOR 
 IMMIGRATION AND CUSTOMS ENFORCEMENT, DEPARTMENT OF HOMELAND SECURITY 
AND JACK LANDMAN GOLDSMITH III TO BE ASSISTANT ATTORNEY GENERAL, OFFICE 
                OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION

                               __________

                              JULY 8, 2003

                               __________

                          Serial No. J-108-22

                               __________

         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

Chambliss, Hon. Saxby, a U.S. Senator from the State of Georgia..     1
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa, 
  prepared statement.............................................   113
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, 
  prepared statement.............................................   114
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts..................................................    25
    prepared statement...........................................   117
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     4
    prepared statement...........................................   119

                               PRESENTER

Allen, Hon. George, a U.S. Senator from the State of Virginia 
  presenting Jack Landman Goldsmith III, Nominee to be Assistant 
  Attorney General, Office of Legal Counsel, Department of 
  Justice........................................................     1

                       STATEMENTS OF THE NOMINEES

Garcia, Michael J., Nominee to be Assistant Secretary for 
  Immigration and Customs Enforcement, Department of Homeland 
  Security.......................................................     5
    Questionnaire................................................     9
Goldsmith, Jack Landman, III, Nominee to be Assistant Attorney 
  General, Office of Legal Counsel, Department of Justice........    33
    Questionnaire................................................    34

                         QUESTIONS AND ANSWERS

Responses Michael Garcia to questions submitted by Senator Durbin    67
Responses Michael Garcia to questions submitted by Senator 
  Feingold.......................................................    72
Responses Michael Garcia to questions submitted by Senator 
  Feinstein......................................................    78
Responses Michael Garcia to questions submitted by Senator 
  Grassley.......................................................    89
Responses Michael Garcia to questions submitted by Senator 
  Kennedy........................................................    91
Responses Michael Garcia to questions submitted by Senator Leahy.   103
Responses Michael Garcia to questions submitted by Senator 
  Sessions.......................................................   106

                       SUBMISSION FOR THE RECORD

Warner, Hon. John, a U.S. Senator from the State of Virginia, 
  statement in support of Jack Handman Goldsmith III, Nominee to 
  be Assistant Attorney General, Office of Legal Counsel, 
  Department of Justice..........................................   124

 
     NOMINATION OF MICHAEL J. GARCIA TO BE ASSISTANT SECRETARY FOR 
 IMMIGRATION AND CUSTOMS ENFORCEMENT, DEPARTMENT OF HOMELAND SECURITY; 
JACK LANDMAN GOLDSMITH III TO BE ASSISTANT ATTORNEY GENERAL, OFFICE OF 
                  LEGAL COUNSEL, DEPARTMENT OF JUSTICE

                              ----------                              


                         TUESDAY, JULY 8, 2003

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:37 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Saxby 
Chambliss presiding.
    Present: Senators Chambliss, Leahy, and Kennedy.

OPENING STATEMENT OF HON. SAXBY CHAMBLISS, A U.S. SENATOR FROM 
                      THE STATE OF GEORGIA

    Senator Chambliss. The Committee will come to order.
    I understand that Senator Kennedy is on his way, but he is 
going to be a few minutes, and we have one of our very 
distinguished colleagues here that I do not want to hold up any 
longer than we have to.
    Senator Allen, we are very pleased to have you join us 
today, and we would welcome any comments you have regarding 
introduction of either of our panelists today.

   PRESENTATION OF JACK LANDMAN GOLDSMITH III, NOMINEE TO BE 
ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, DEPARTMENT 
OF JUSTICE, BY HON. GEORGE ALLEN, A U.S. SENATOR FROM THE STATE 
                          OF VIRGINIA

    Senator Allen. Thank you, Mr. Chairman. Good afternoon and 
thank you for your courtesy, as always, and your wonderful 
leadership.
    I am here, Mr. Chairman and members of the Committee, to 
support the nomination of a fellow Virginian, Mr. Jack 
Goldsmith, to be Assistant Attorney General in the Office of 
Legal Counsel at the United States Department of Justice. I 
also have with me a statement I would like to have put in the 
record for my good colleague and teammate from Virginia, 
Senator Warner, also in support of Jack Goldsmith for this 
position.
    Senator Chambliss. Certainly. Without objection, Senator 
Warner's statement will be entered.
    Senator Allen. Thank you, Mr. Chairman.
    I know that this Committee and the members will review the 
background of Mr. Goldsmith. I have been very impressed by the 
expressions of support that I have received from professors at 
the University of Virginia School of Law expressing Mr. 
Goldsmith's strong qualifications for the position to which he 
has been nominated. These letters and comments say a great deal 
about their view and people who know him the best call him ``a 
superb lawyer and legal scholar of impeccable credentials'' who 
has ``played an important role in helping our country wage the 
war on terror while serving at the Department of Defense,'' and 
that is just in recent years.
    One letter says Mr. Goldsmith is ``a leading expert on 
international law,'' and certainly when you look at his record, 
he is a leading expert on international law and has influence 
extending beyond the academic world into the broader community 
of specialists and policymakers.
    The University of Virginia Law School has been very 
gracious enough to loan Mr. Goldsmith to the Department of 
Defense where he currently serves as Special Counsel. However, 
I am also pleased--and I confirmed it with him on cross-
examination before this hearing--that he has pledged to return 
to the University of Virginia following his service in the 
Department of Justice.
    Now, the recent 5 years, Mr. Goldsmith served as an 
associate professor at the University of Chicago Law School 
specializing in foreign affairs and in international law. In 
addition to his outstanding academic legal career, Mr. 
Goldsmith had the extensive and wonderful pleasure of having 
some impressive clerkships, with Judge J. Harvie Wilkinson, who 
was the chief judge of the Fourth Circuit Court of Appeals; he 
also served in a clerkship with Justice Anthony Kennedy of the 
United States Supreme Court, and Judge George Aldrich of the 
Iran-U.S. Claims Tribunal.
    Mr. Goldsmith earned his first bachelor's degree from 
Washington and Lee University in Lexington, Virginia, and a 
second bachelor's degree from Oxford University. He received 
his master's degree from Oxford University and his law degree 
from the Yale Law School.
    I also would like to have you, Mr. Chairman and members of 
the Committee, Senator Leahy, to recognize some of Mr. 
Goldsmith's family members who are here with us today: first, 
his lovely wife, Leslie, straight behind me; his son, Jack 
Goldsmith IV, who is now playing with his stickers, has a 
pacifier of sorts.
    Senator Leahy. He is the happiest one in the room.
    [Laughter.]
    Senator Allen. That is right. Happy pup.
    Also his mother, Brenda O'Brien, is here with us, and his 
mother-in-law, Glenda Williams; and his two brothers, Stephen 
and Brett O'Brien.
    Mr. Chairman and members of the Committee, it is my sincere 
pleasure to present to this Committee this exceptional nominee, 
an outstanding Virginian, to you this afternoon, and I 
recommend him with the highest qualifications and hope that you 
will be able to move on him with all expedition and swiftness.
    And I thank you, Mr. Chairman, for your courtesies and 
appreciate the outstanding job that you do in this Committee in 
reviewing nominees and moving as quickly as possible to allow 
the Department of Justice to do its job in protecting America's 
freedoms as well as our security.
    Thank you, Mr. Chairman.
    Senator Chambliss. Well, thank you, Senator Allen, for 
coming and introducing Mr. Goldsmith to us. And I assure you, 
coming from you and Senator Warner, that recommendation is 
received with the high regard that it deserves. We appreciate 
very much you taking the time to come be with us today.
    Senator Allen. Thank you.
    Senator Chambliss. Thank you.
    We have two nominees today, Michael Garcia and Jack 
Goldsmith, for consideration. I think what we will do is have 
them come up individually as opposed to having them come up 
together.
    So at this time I would like to ask Michael J. Garcia, who 
is nominated to be Assistant Secretary, United States 
Department of Homeland Security, if you will come forward. And 
before you sit down, if you will raise your right hand. Do you 
swear the testimony you are about to give will be the truth, 
the whole truth, and nothing but the truth, so help you God?
    Mr. Garcia. I do.
    Senator Chambliss. We are very pleased to have Mr. Michael 
Garcia before the Committee today as the President's nominee to 
be Assistant Secretary for the Bureau of Immigration and 
Customs Enforcement, which is known as BICE. This is a very 
important position, and we look forward to working with the 
Bureau to perform its essential duties within the Department of 
Homeland Security.
    Mr. Garcia served as Acting Commissioner of the Immigration 
and Naturalization Service from December 2002 to February 2003. 
In his new role at the Enforcement Bureau, I am confident he 
will continue to improve the security of this country. Mr. 
Garcia previously served as Assistant Secretary of Commerce for 
Export Enforcement from August 2001 to November 2002. He is a 
distinguished Federal prosecutor who has worked in 
counterterrorism and national security issues for 10 years.
    For his prosecutions of several high-profile cases, 
including the first World Trade Center bombing, Mr. Garcia 
received the Attorney General's Award for Exceptional Service, 
the Department of Justice's highest award. With his experience 
and knowledge, Mr. Garcia will be able to successfully lead the 
new Immigration Enforcement Bureau, the second largest Federal 
law enforcement agency.
    I had the privilege of introducing Mr. Garcia over at the 
Government Reform Committee a few weeks ago. I am very 
impressed with his background, with him personally, and it is 
indeed a privilege to have you here. I know he has with him his 
wife, Liana, who, Senator Leahy, does a very good job of 
looking after him. If he does not do what she tells him to do, 
she is a Special Agent for the Federal Bureau of Investigation, 
so she can handle him.
    But we are indeed privileged to have both of you committed 
to public service. And, Mr. Garcia, before I turn it over to 
you for any comments you want to make or statements you want to 
make, I will turn to Senator Leahy for any comments he has 
before we proceed with you.

  STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE 
                        STATE OF VERMONT

    Senator Leahy. Well, Mr. Chairman, thank you for doing 
this. I am glad that we have these people before us. I am only 
concerned that we are rushing these through so fast that as a 
result we are not having a chance to prepare as we might want 
to on some of these, especially as some of the material on some 
of these nominees--and some of them are going to be up before 
us tomorrow--have barely arrived or are in the process of 
arriving so that we end up actually getting the material after 
the fact. And it makes it somewhat impossible to give the kind 
of advice and consent that we are supposed to.
    I do want to thank you, though, Mr. Chairman, and also 
Chairman Hatch and Senator Kennedy, for working together with 
me to seek and obtain the unanimous consent that the nomination 
of Michael Garcia be referred to the Judiciary Committee after 
Government Ops. Immigration policy is the responsibility of 
this Committee. Oversight over the way the new powers are being 
used should be ours. Like me, Mr. Garcia is a former 
prosecutor--I still think the best job I ever had. As an 
Assistant U.S. Attorney, he prosecuted cases involving 
terrorism, immigration, document fraud, was involved in several 
high-profile cases, including the trial of four defendants 
following the first World Trade Center bombing in 1993; the 
trial of Ramzi Yousef and the prosecution of four defendants 
following the 1998 embassy bombings in East Africa.
    Shortly before 9/11, he was appointed Assistant Secretary 
for Export Enforcement, and, of course, we have the rest of the 
things on his resume. He has served as Acting Assistant 
Secretary of BICE since March of 2003, where he has 
responsibility for the enforcement of immigration and customs 
laws.
    Also, if you don't mind a point of actually parochial 
pride, he will be responsible for a number of Vermonters who 
have worked for the INS and for Customs before transition to 
DHS. I have asked Under Secretary Asa Hutchinson and Eduardo 
Aguirre, the head of the Bureau of Citizenship and Immigration 
Service, about their restructuring plan, what impact that is 
going to have on the employees in Vermont, the employees who 
consistently get awards as among the most productive in the 
service. Both of them have assured me that reorganization will 
make use of those workers. Both have assured me that Vermont 
will not lose jobs as a result.
    I think you will find that the Vermonters you have 
inherited from the legacy INS offices in Vermont, including the 
Eastern Region administrative centers, are among the most 
dedicated, conscientious people you will ever meet. And I 
encourage you to come and visit them.
    I think when some of these offices--1 day I was up there, I 
think a day or two before we had something like 12 or 15 inches 
of snow overnight. And I asked what time people showed up for 
work, and they looked at me like that was kind of a foolish 
question. They all showed up for work on time. Was there any 
particular reason why they would not? So that will give you an 
idea what they are like.
    I have sent a letter about the legacy of INS Detention and 
Removal personnel based in the former INS Eastern Region 
office. I have received an answer back from DHS staff, but I 
would like a more thorough reply, and also about the Law 
Enforcement Support Center. When we passed the Homeland 
Security Act, we made clear that as we divide immigration 
services and immigration enforcement, we have to keep open and 
clear information between the two and communication to make 
them work.
    So I look forward to your answers. I understand from your 
staff that you have an ambitious plan to reduce the absconder 
rate of aliens who have been ordered removed from the country 
to zero within 6 years. There is one major reason for the 
absconder rate. We do not have the facilities to house aliens 
while they awaiting removal, and that is going to require an 
enormous of resources. I look forward to hearing how that will 
be done.
    And, lastly, I would be remiss not to mention the recent 
OIG report on the treatment of September 11 detainees. The 
report addresses the treatment that many permanent residents 
and other aliens received in detention, the long delays in 
removing aliens who had final removal orders. I hope that will 
be instructive to you, and I hope it will be helpful.
    I am concerned about the discrepancy between the reasons 
you gave for refusing to answer questions asked of you by the 
Senate Governmental Affairs Committee, the discrepancy between 
your refusal and the response, very clear response, provided to 
the Committee by the Inspector General's Office. That is an 
area I want to clear up, too.
    Thank you, Mr. Chairman.
    Senator Chambliss. Thank you.
    Mr. Garcia, we will insert any written statement you want 
to put into the record, and we will call on your this time for 
any comments you would like to make before questions begin.

    STATEMENT OF MICHAEL J. GARCIA, NOMINEE TO BE ASSISTANT 
 SECRETARY FOR IMMIGRATION AND CUSTOMS ENFORCEMENT, DEPARTMENT 
                      OF HOMELAND SECURITY

    Mr. Garcia. Thank you, Mr. Chairman, and thank you very 
much for that introduction today. Senator Leahy, thank you also 
for your remarks. It's an honor to appear before this Committee 
as nominee for the position of Assistant Secretary for the 
Bureau of Immigration and Customs Enforcement, or BICE, within 
the Department of Homeland Security.
    I would like to thank the President for his confidence he 
has shown in me by again nominating me to serve as the leader 
of a critical law enforcement agency within his administration. 
The leadership demonstrated by Congress in swiftly passing the 
Homeland Security Act and the President's commitment to 
expeditiously implement the Act are monumental achievements in 
the defense of our Nation against the threat of terrorism.
    If confirmed, I will continue to implement the Act 
consistent with its intent and will remain focused on its 
overarching mission of providing greater security to our 
country.
    For the past 10 years, my career in public service has been 
devoted to counterterrorism and national security issues. This 
experience provides me with a unique perspective regarding the 
threats confronting our homeland and the tools and capabilities 
required to effectively meet them. I would bring this 
perspective and experience to the job of Assistant Secretary 
for Immigration and Customs Enforcement should I be confirmed 
in this position.
    I would like to briefly describe my career in public 
service. After completing a clerkship for Judge Judith Kaye on 
the New York Court of Appeals, I had the privilege of joining 
the United States Attorney's Office for the Southern District 
of New York. I joined that office at a unique time in its 
history. Six months after my appointment as an AUSA, in 
February 1993, the first attempt to topple the World Trade 
Center took place. It was at the time the single most 
devastating act of terrorism ever committed on U.S. soil. I was 
one of the prosecutors assigned to lead the investigation into 
that attack.
    This was new territory for law enforcement. From the 
investigative techniques brought to bear to the laws used to 
bring terrorists to justice, the case was a new model for 
terrorism prosecutions. All available tools were used. Statutes 
covering bombing of Government vehicles and immigration law 
violations, among others, were used against the defendants in 
that case. Agents from every Federal law enforcement agency 
brought their authorities and expertise to the case. As a 
member of the prosecution team, I was responsible for guiding 
this effort, presenting evidence to gain indictments, and 
presenting the case in court. All four defendants were 
convicted on all counts in that case. I received the Attorney 
General's Award for Exceptional Service, the highest award 
presented by the U.S. Department of Justice, for my work on 
that case.
    My work on the World Trade Center bombing would define my 
career in Government service. Less than 1 year after the 
verdict in the Trade Center case, an explosion took place 
halfway around the world in Manila, where Ramzi Yousef, the 
mastermind of the Trade Center attacks, and his associates were 
mixing chemicals in an apartment in preparation for attacks on 
12 U.S.-flag commercial jetliners. Their plan was to detonate 
bombs aboard those jetliners while they were airborne and 
filled with passengers on their way from Asia to the United 
States. I flew to Manila and directed the investigation and 
prosecution of that terrorist conspiracy. I oversaw a case 
that, unlike the 1993 bombing, involved terrorist activity 
outside the U.S. aimed at this country's national security.
    In bringing charges against Yousef and his co-conspirators, 
including then-fugitive Khalid Shaikh Mohammed, I was the first 
to use some of the anti-terrorism statutes passed by Congress 
after the Trade Center bombing. I also coordinated the 
cooperation in the trial of a number of foreign governments, 
including the Philippines and Pakistan. In 1996, Ramzi Yousef 
and two other terrorists were convicted on all counts in that 
case. I received the Attorney General's Award for Exceptional 
Service for my work on that case as well.
    In 1998, followers of Osama bin Laden bombed our embassies 
in Nairobi, Kenya, and Dar es Salaam, Tanzania. More than 200 
persons were murdered in these terrorist attacks. I was 
assigned as one of the lead prosecutors on the case against the 
four Al-Qaeda operatives who stood trial in New York. In 
preparing this case, I managed and led a team of investigators 
and staff in a worldwide effort to gather evidence, return 
terrorists to the United States, and coordinate efforts with 
the intelligence community. The jury returned guilty verdicts 
in this trial on all 302 counts.
    This case raised a number of issues of first impression 
with regard to crimes committed against U.S. interests overseas 
and the intersection of criminal investigations and 
intelligence gathering. In addition to the Attorney General's 
Award for Distinguished Service, I was awarded the CIA's Agency 
Seal Medallion for my efforts in coordinating our criminal case 
with the intelligence community.
    My extensive management of complex counterterrorism 
prosecutions has taught me the important lessons about 
counterterrorism that I would bring to my role in BICE, if 
confirmed. Three of the most important include: first, the need 
to use all our enforcement tools and authorities in support of 
our counterterrorism efforts; second, the importance of 
coordination across agencies and with the intelligence 
community; and, third, that prevention and disruption need to 
be vital components of our counterterrorism strategy. Criminal 
prosecutions are just one tool in that effort to protect the 
homeland.
    After guilty verdicts in the embassy bombing case, I was 
nominated by the President and confirmed by the Senate as 
Assistant Secretary of Commerce for Export Enforcement. In this 
position, I led an enforcement agency with a national security 
mission: preventing sensitive technology from falling into the 
hands of those who would use it to harm U.S. national security.
    In December of 2002, the President designed me Acting 
Commissioner of the Immigration and Naturalization Service. As 
Acting Commissioner, I was honored to lead the transition of 
that agency into the Department of Homeland Security, while at 
the same time ensuring that the critical day-to-day work of the 
agency continued uninterrupted. This was a monumental task 
involving dissolution of a 36,000-person agency.
    After the creation of DHS and the transfer of INS functions 
to that Department, I was named Acting Assistant Secretary of 
DHS for Immigration and Customs Enforcement. BICE, with 14,000 
employees and 5,500 special agents, is the second largest 
investigative Federal law enforcement agency. On March 1st, 
that agency stood up a management structure that enabled all 
BICE employees to continue on with their critical enforcement 
missions while seeking to take advantage of the new 
opportunities presented by having the tools and authorities of 
the legacy components of INS, Customs, and the Federal 
Protective Service. This is the challenge of BICE: to create a 
unified enforcement agency capable of bringing all its law 
enforcement tools to bear in an efficient and effective manner 
on the vulnerabilities to our homeland security.
    We have just completed a reorganization that will provide 
BICE with a unified investigation structure, both in the field 
offices and at headquarters. The reorganization also created 
one unified intelligence division from the agency's legacy 
components. If confirmed, I would bring to the task of leading 
this new enforcement agency a perspective gained from a career 
dedicated to anti-terrorism and national security. I would use 
this experience to guide my vision of a unified agency 
committed to a partnership with its Federal, State, and local 
counterparts and commit it to full and fair application of the 
tools and authorities given to BICE.
    Mr. Chairman, in conclusion, I would again like to commend 
Congress on its effort to protect the American people from 
those who seek to do us harm. It is an honor to be nominated as 
the Assistant Secretary to lead dedicated law enforcement 
officers in this unprecedented time. If confirmed, I vow to 
work together with this Committee and Congress to strengthen 
our Nation's defense and protect the American people.
    Thank you again for your consideration, and I look forward 
to answering any questions.
    [The biographical information of Mr. Garcia follows:]

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    Senator Chambliss. Mr. Garcia, thank you for your 
commitment and service to the United States in the various 
capacities in which you have already served, and you certainly 
bring a strong background in law enforcement to this particular 
position, which is going to be so critical as we move forward 
with the establishment of the Department of Homeland Security.
    Let me start off by asking you about--there have been 
several statutory requirements passed over the last few years 
where Congress has mandated an entry/exit system to control our 
borders and track visitors while they are in the country. What 
is the role of your Bureau toward implementing this entry/exit 
system? And what challenges lie ahead before this system will 
be operational, particularly with the December 31, 2003, 
deadline starting us in the face?
    Mr. Garcia. Yes, Mr. Chairman. As to the role of BICE, in 
the Department of Homeland Security what was the entry/exit 
program, NSEERS, have been combined into one umbrella named 
U.S. VISIT. The Secretary and the Under Secretary Asa 
Hutchinson place great importance and emphasis on this program 
and have elevated it--it was a program within the former INS--
have elevated the status of that program to a BTS, a 
Directorate level initiative. So the U.S. VISIT program 
encompassing entry/exit is now being run out of Under Secretary 
Asa Hutchinson's office.
    BICE will continue to have a role in this project, 
primarily as an enforcement agency. We recently established as 
part of our reorganization a compliance enforcement program. 
Part of that compliance enforcement program will be to enforce 
against violators of the entry/exit system of NSEERS, of SEVIS.
    With respect to SEVIS, which is the student registration 
part of the entry/exit controls, that program still resides 
within BICE, managed within BICE, of course, cutting across 
agencies within BTS, primarily the inspections function at the 
border.
    There is an aggressive plan for certain implementation 
steps in U.S. VISIT, entry/exit, to be taken by December of 
2003. I discussed the timing and the scheduling for those plans 
with the folks at the U.S. VISIT program. They assured me that 
they were on target to meet that deadline for December 2003.
    My experience with the program, with SEVIS, with entry/
exit, is that the biggest challenge clearly is technology and 
building the infrastructure at our ports and our borders that 
will support the entry/exit concept. I think the biggest 
challenge there lies in the exit function. This country before 
9/11 was not equipped to register particularly people who came 
here to visit and then exited the country. On the Northern 
border in particular, we had facilities and have facilities 
that are ill-equipped to do that. And as part of the assessment 
of U.S. VISIT, much work has been done in looking at those 
facilities and what will be needed to meet the deadlines there.
    But I see the biggest challenge being the technology to 
control the exit/entry and the infrastructure that we need, 
primarily on the exit side of entry/exit, to get that system 
operating 100 percent.
    Senator Chambliss. You mentioned SEVIS, and August 1, 2003, 
is the statutory deadline for a school to submit information on 
student visas and exchange students into the SEVIS database. 
Can you give us an update on whether or not that deadline is 
going to be met? And, also, how will your Bureau interface with 
the Bureau of Citizenship and Immigration Services with regard 
to SEVIS?
    Mr. Garcia. Certainly, Mr. Chairman. With respect to the 
deadline, implementation of SEVIS has been done on a rolling 
basis. There were January deadlines for prospective students 
which were met so that all students, new students at these 
colleges going forward would be entered into the SEVIS database 
through this Web-based system.
    The August 1st deadline applies to ongoing students, so 
students who were in prior classes that have not been entered 
into the system yet. The deadline for that is August 1. We have 
made substantial progress on that deadline. In checking that 
for this hearing, I was told that of the 1,600, I think, 
approximately, institutions that are still in the pipeline here 
for August 1, more than 1,200 were later filers or people who 
didn't--institutions that didn't file with the appropriate fee. 
We're doing everything we can to get those on board by August 
1, but they didn't meet for getting their applications in. The 
other schools have been prioritized, and we hope to meet the 
deadline for all those who applied in a timely way to get on 
the system.
    That being said, it's also a rolling process, so that if 
the school meets the deadline August 3rd and their student 
comes in August 4th, they would be admitted. They wouldn't have 
a problem. But we are working hard to prioritize the schools. 
We are working hard to get those into the system that haven't 
met the deadlines for applying.
    With respect to our relationship with BCIS, BCIS is 
primarily responsible in this context for adjustments of status 
with respect to the students. The schools issue the I-20's to 
have the students come into the country to attend school. If 
after the course of study or at some period therein a student 
wishes to adjust his status to get worker status or some other 
type of relief entitling him to work or to stay longer in this 
country, they would apply through BCIS. BCIS would adjudicate 
that application, and we would be guided by BCIS' decision in 
that case.
    Senator Chambliss. Senator Leahy?
    Senator Leahy. Thank you, Mr. Chairman. My own statement I 
will place in the record.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Senator Leahy. And as I am fast losing my voice here, you 
may have been confused by my compressing two things together. 
When I referred to the testimony before the Government 
Operations, I was referring to the testimony about your agency 
being involved in the political actions between members of the 
Texas Legislature. And on June 16th at 11:00 p.m., about 12 
hours before the Governmental Affairs Committee met to consider 
your nomination, you said you were directed by the IG's office 
not to answer their questions. But the Assistant IG for 
Investigations reported that she told your principal legal 
adviser, Mark Wallace, earlier that day that no one had 
directed you or anyone else what to say.
    Is there a conflict there that you would like to clear up?
    Mr. Garcia. There is something I would like to clarify, 
Senator, and I appreciate--
    Senator Leahy. I thought you might.
    Mr. Garcia. I appreciate the opportunity to do so. I 
understood that you were referring to two different IG reports 
in your earlier statement. This refers to the inquiry into what 
happened down at AMIC, the Air-Marine facility out on the West 
Coast. When I was in front of the Government Affairs Committee, 
I was initially asked some questions on that prior to the 
hearing. On May 30th, I submitted a written response indicating 
that because the matter was pending before the IG, I didn't 
believe it was appropriate to comment. I made the same 
representation on June 2nd in a staff interview, Government 
Affairs staffers. They asked what I based that on. I said it 
was based primarily on my experience as a prosecutor, knowing 
the sensitivities of an ongoing criminal investigation.
    At that time the minority counsel expressed disagreement 
with that view and said, in fact, there was law related to 
Senate inquiries that I was unaware of. That was on June 2nd.
    I was also aware that Secretary Ridge in a hearing in front 
of the House prior to that time, I believe in late May, had 
also declined to answer based on the ongoing criminal 
investigation into the matter.
    After the June 2nd interview, I went through my legal 
counsel, through counsel to the Department, to the IG to get 
clarification given the continuing interest and given the 
representations of minority counsel at the staff meeting. At 
that time I was sent an e-mail from the--through the counsel 
from the counsel to the Inspector General, which stated--and I 
read verbatim--``Attached is language that Mr. Garcia can use 
if questioned on the Texas State Legislature issue''--
``legislators issue.''
    The attachment reads, ``The OIG has asked that any 
questions relating to this matter be directed to them.'' I 
received that on June 4th. At the same time, through the chief 
legal officer at DHS--
    Senator Leahy. Just because I think in reading in all 
this--I will let you submit it for the record--we are going to 
be way past the time to even answer the question. By June 
16th--you just mentioned June 4th. By June 16th, a week and a 
half later, it had been cleared up there was on restraint, if I 
am correct, from the IG's office for you to answer questions. 
Is that correct?
    Mr. Garcia. Yes.
    Senator Leahy. But you still didn't want to answer 
questions.
    Mr. Garcia. No. I did answer the questions on that date, 
Senator. If you look at my June 16th response--
    Senator Leahy. You were directed at that time--you said you 
had been directed by the IG not to answer questions.
    Mr. Garcia. That's correct.
    Senator Leahy. But, in fact, by that time it was all right 
for you to answer questions.
    Mr. Garcia. That's correct. And I did at that time answer 
questions.
    Senator Leahy. Let me ask you just one basic question. Will 
you make sure that they not be involved in this? I mean, this 
is kind of penny-ante political actions of using the Federal 
Government on things like this. I mean, I don't care whether it 
is involving Republicans or Democrats. It detracts very much 
from both the legitimacy of your agency, but also it detracts 
very, very much from the confidence the American public has to 
have in an agency that is supposed to be outside of partisan 
politics.
    Mr. Garcia. Senator, if I might briefly reply. One, I agree 
with you, and I also regret any confusion over the 
communications with respect to my answers in the prior 
committee. I do think we need to do a better job internally of 
communicating that way. I'm glad I had the opportunity to 
answer the questions.
    I agree with you that misuse of any Government resources, 
particularly homeland security resources, is an egregious 
matter. The allegation that that was done is what prompted me 
to refer that matter to the Inspector General. I was very 
relieved to see the Inspector General's report and the 
conclusions therein. Nevertheless, I directed that a management 
review take place over at AMIC to make sure that our 
procedures, while followed, were the appropriate ones to have 
in place. I was subsequently notified by the IG's office that 
they would like to do that review and to stand down, which, of 
course, I will and cooperate with the IG's review in any way.
    I take these allegations very seriously. I take the role of 
the IG very seriously. And my responses to the prior questions 
were in no way meant to be disrespectful or non-responsive to 
the Committee's inquiries. But given my background and what I 
understood to be the rules regarding a potential criminal 
inquiry by the Inspector General--and I do regret any confusion 
that was caused and the miscommunication surrounding that 
position, and I take responsibility for some of that confusion.
    Senator Leahy. Well, I will submit the rest of my questions 
for the record, Mr. Chairman. I would just suggest one thing to 
the nominee. In the past, the Department of Justice has been 
reluctant to get involved in prosecuting some of these cases. 
We find that there have ben fraudulent applications, there may 
be a dozen fraudulent applications, and if you kind of follow 
the thread back, it is one person who sort of organized them 
all.
    Might I recommend--I know in our State, I have checked with 
the U.S. Attorney, and they are perfectly willing to prosecute 
these if Justice would let them. Go and bring some 
prosecutions. You have got somebody who is putting together 
some kind of shop where they are lining up a dozen, two dozen, 
three dozen people to make fraudulent applications, I am not so 
much concerned about throwing the people out who have probably 
been duped the whole way down the line, but figure out some way 
to go and get the ones doing it. And I think if you did a half 
dozen of those prosecutions, you are going to find your life 
and your inspectors' lives are going to be a lot easier.
    Mr. Garcia. Thank you, Senator.
    Senator Leahy. Thank you, Mr. Chairman.
    Senator Chambliss. Thank you.
    Senator Kennedy has joined us. Senator Kennedy, if you want 
to make any statement, we will be happy to hear from you, and 
it will not be charged to your questioning time, although we 
are going to grant leeway with respect to questions. So feel 
free.

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

    Senator Kennedy. Well, thank you very much, Mr. Chairman. I 
want to thank you for calling today's hearing on Mr. Garcia's 
nomination. And I would like to put sort of the opening 
comments in the record. I want to just underline a few of the 
points.
    As Mr. Garcia understands, we have had a long interest on 
issues of immigration policy here in this Committee. We know 
you have 500 million people that are coming in or out of the 
United States every single year. And so what we are trying to 
understand is how we are going to ensure that those that pose a 
particular threat to the United States are going to be able to 
be identified; and, on the other hand, to also understand the 
importance that so many of those that do come in and out of the 
United States are members of families, have legitimate 
interests, great friends of the United States, and want to be 
able to at least, according to the law, to carry forward their 
particular kind of mission here in the United States.
    So this is a tough issue, and we have tried to work with 
the agency over a period of time. We have acted on the issues 
of border security, bringing in new kinds of coordination of 
computers, and also have been strongly supportive of the 
intelligence agency working with the FBI and the development of 
the watch list to get information to immigration personnel so 
that they are going to be able to make judgments in local 
communities and support their efforts so that they can do the 
job, which in too many instances in the past has not been the 
case.
    And we know that you are going to be challenged as you move 
through in terms of the development of all these new 
technologies. You are going to be also selecting other kinds of 
new technologies to help to try and carry forward your own 
agency to be able to do it more completely. So these are going 
to be the kinds of issues you are going to be faced with that 
sort of no one in the past has had to deal with it. You have 
had obviously an impressive past in terms of the apprehension 
and prosecution of the individuals who have violated the laws.
    I am interested initially in hearing you out--and I know 
that some of these you have reviewed with the Governmental 
Affairs Committee, but I am interested in hearing you out on 
how you are going to be able to coordinate the various Bureaus, 
the three different Bureaus. I would like to also hear you out 
a little bit about the role that you play in terms of then 
service agencies, how you view the service agencies in this 
kind of function, how we are going to be able to coordinate 
policy, how we are going to ensure that the agencies are having 
similar instructions to those workers in the field, and also if 
you could talk a little bit about how you look at the service 
agencies. I am interested in that. And then I want to come back 
to the issues on unaccompanied immigrant children and some 
others.
    Mr. Garcia. Thank you, Senator. You touch on a very 
important issue here in terms of communication, and I would 
break it down as you suggest into two parts. It's a challenge 
in the Department of Homeland Security coordinating immigration 
policy in that what was INS has split not only into three--
mainly three separate agencies, two of those agencies reside 
within BTS Directorate, while the services--BCIS--agency headed 
by Director Aguirre reports directly to the Secretary. So 
there's communication to be done between BICE and BCBP, the 
border agency within BTS, and as you mention, communication to 
be done with BCIS, primarily the services agency, which is in a 
separate Directorate.
    With respect to BCBP, in many ways less of a challenge 
residing under the same Directorate, participating in policy 
councils weekly with Under Secretary Hutchinson, I also meet 
regularly with Commissioner Bonner, and we have working groups 
at a very high level working together. In fact, as we exchanged 
basically personnel, that has raised very specific issues with 
respect to the functioning of our two Bureaus.
    With respect to BCIS, Director Aguirre's operation, agency, 
as I mentioned before, this is a different challenge given that 
we cut across agency lines. A number of things go into a good 
relationship, a good working relationship and good 
communication with that agency in my view. One, it obviously 
starts at the top. Director Aguirre and I have known each other 
since before he came on board--slightly before he came on 
board, as we met when he was in the process, developed a very 
good personal relationship, are on the same floor of the 
building, and meet frequently informally to discuss issues that 
affect our respective agencies. I think it's important to 
formalize that and have been meaning to meet with him to set up 
a type of more formal meeting arrangement, particularly if he 
moves on to a different facility. But right now we have 
constant contact within the building and a very good personal 
relationship, which I know he also enjoys with the Under 
Secretary, Under Secretary Hutchinson.
    We also have each appointed high-level representatives. 
Mona Raghib is my representative who works with BCIS on policy 
issues, on issues going forward that affect both agencies. She 
deals with her counterpart. They both have direct access to the 
principals, to Mr. Aguirre and to me.
    In addition, we have set up a number of working groups to 
look at issues ranging from legal issues as we look at our 
legal shop, personnel issues, administrative support issues, 
incredibly complex areas, incredibly important to the 
functioning of each agency, complex because of the nature of 
the break as we went into DHS.
    My view of the services agency, of Director Aguirre's 
agency, is tremendous respect for what they do. I had some 
authority over those functions for a brief period of time, 
approximately 4 months, as Acting Commissioner of INS. I know 
how dedicated those workers are. I know the challenges that 
they face. I know the workload that they face. I appreciate the 
work that Director Aguirre is doing to try to facilitate some 
of the application processes involved in benefits adjudication 
that he works with.
    I understand the need for us to communicate both in terms 
of information that services side needs from us and in terms of 
information that we need on services side in our work. I think 
there needs to be still a great level of coordination and 
communication, both at headquarters and in the field. I think 
one of the pros is that in many areas, most areas, we are still 
collocated in the field and still share support services in the 
field, making the physical connection there. But I believe, as 
I do with BCBP, that as we go forward probably more of the work 
we do between agencies will have to be memorialized in terms of 
agreements we work out for procedures.
    You know, many of them still function as a result of good 
personal relationships that have developed over the years, 
particularly with services, BCBP, where people were in the same 
agency before. But we need to formalize that good working 
relationship for the future.
    Senator Kennedy. Will the Policies and the Services Bureau 
be reviewed by the Enforcement Bureau--
    Mr. Garcia. Senator--
    Senator Kennedy. --before they are implemented? And when 
conflicts arise, how will these be decided?
    Mr. Garcia. Excuse me. I didn't mean to interrupt. There's 
no formal review by BICE of BCIS policies. There are policy 
personnel in BTS, in my Bureau as well as in Eduardo Aguirre's 
Bureau that speak to each other. It would be the situation that 
I would see, if there is a conflict, as we are talking, that 
that would be elevated up at least to the level of Asa 
Hutchinson and Director Aguirre to resolve and their policy 
folks to resolve. I think we've done a good job so far of 
communicating and coordinating, and I haven't seen that level 
of elevation come about.
    Senator Kennedy. The Homeland Security Act established the 
position of an ombudsman who is responsible for identifying the 
problems, proposing changes by the service Bureaus' practices 
and its dealing with the individuals. I understand you do not 
support extending ombudsman responsibilities to enforcement 
issues in your Bureau.
    Mr. Garcia. That's correct. That is my prior answer to that 
question, Senator, and if I could briefly explain why. I value 
the role of ombudsman. I value the role of oversight, integrity 
oversight. I think particularly in a law enforcement agency--
and I have said this when I have spoken publicly to our folks--
what we have is our integrity. If you lose that, you lose your 
effectiveness as an enforcement agency.
    We have a very robust internal affairs program that we have 
inherited from Customs, former Customs Service, close to 200 
agents in that program who do that work. We also have an 
internal audit function both from prior Customs Service, prior 
INS, that look at procedures and processes in the field and at 
headquarters. I strongly support that. I think that will 
probably need to be enhanced as we look at the client base we 
are serving and if we are going to serve across agency borders 
to look at that.
    We also have a new IG relationship and a new MOU with the 
IG in terms of criminal cases we refer and important non-
criminal cases that we refer to the IG, a more encompassing 
docket for the IG, I believe, which also impacts our IA 
function. But I believe that that new IG function as well as 
our robust internal affairs and audit functions serve the 
oversight, integrity insurance functions that the ombudsman 
would serve at the BCIS side.
    Senator Kennedy. Well, I think you have certainly outlined 
those agencies which will be monitoring and reviewing the 
function. But I suppose it is still of value--I would think 
still be of value to have sort of that independence be 
available, accessible to you to give you the best judgment as 
to how in the areas of enforcement the whole institution is 
working. But we will work with you on this down the line and 
see where we are.
    I am interested in that OIG report. As you are aware, they 
released the report on the September 11th detainees and found 
significant problems in the way detainees were handled, and the 
Department of Justice used the terrorism excuse to adopt harsh 
tactics that trampled on the rights and liberties of 
immigrants, and their detention is now the responsibility of 
your Bureau.
    What steps is the Bureau taking to see that the problem 
found by the report are corrected? As I understand, you are 
going to do a review of the report, and I think you said you 
were going to report to the Governmental Affairs Committee 
within 60 or 90 days. Are we going to get a copy of that report 
as well? Could we get a copy of that report?
    Mr. Garcia. Certainly, Senator. I will make sure that you 
do.
    Senator Chambliss. Let's make sure we do.
    Senator Kennedy. Good. But let me just ask you what is your 
own preliminary reaction to this report and--
    Mr. Garcia. I--I'm sorry, Senator.
    Senator Kennedy. And what are you doing about it before you 
get your own report or you are waiting for it? What is the 
story?
    Mr. Garcia. Sure, Senator, I'd be happy to. One, obviously 
I have studied the report. I think it's a very important 
document. It highlights, obviously, the conditions and the time 
these actions were taken, a unique time in our country's 
history, unfortunately.
    I take nothing more serious than allegations of abusing 
people who are on detention. I found that the most disturbing. 
I think that we are--we will respond to each of the 
recommendations and in the preliminary stage going through it 
concur with, if not all, nearly all of those recommendations. 
In fact, since we have seen some of the preliminary work on 
that report, we have already been taking steps to address some 
of the concerns.
    With respect to detainees, although the detention and 
removal facility there that was studied in Passaic, I believe, 
generally fared fairly well in terms of treatment and in terms 
of access to counsel, there was criticism that there was no 
formal detention standard that required visitation weekly to 
these contract facilities. That detention standard has been 
drafted. It's in the process of being reviewed. And, in fact, 
my understanding is we are doing those reviews now, but we are 
going to have a formal detention standard in place.
    With respect to getting information for bail hearings, 
where there was criticism in the report that the FBI and DOJ 
and INS were holding people without bail, without supporting 
information, in the recent Liberty Shield time frame where we 
had people held in detention, we required written communication 
from the FBI if they were going to ask us to hold someone 
without bail for their own--you know, for reason of their own. 
Otherwise, we went forward based on the facts and circumstances 
of the case as we understood them.
    So we are working towards addressing implementing changes 
based on that report. I welcome the report. I think it's part 
of the process we were just discussing. Actions are taken. A 
time of incredible pressure in this country following the 9/11 
attacks, an Inspector General that does a thorough job of 
reviewing those facts and circumstances and makes 
recommendations, I find that evidence of the way the system 
works, and we take it very seriously. We'd be happy to provide 
the specifics of our response that we're going to provide to 
the Government Affairs Committee. And as I said, we concur with 
those recommendations, if not totally, almost completely.
    Senator Kennedy. Well, I appreciate that. So you will let 
us know what that report is and give us a copy, and then you 
are going to give us a reaction to the recommendations of each 
of the--
    Mr. Garcia. Yes, Senator. And just to add, as you say, much 
of this falls within my Bureau, but we're also committed to 
working with the Department of Justice, obviously has a role in 
this area going forward. We are trying to draft an MOU, as 
suggested in the report. We've had contact with DOJ through the 
Department of Homeland Security, and I look forward to working 
with my colleagues in DOJ.
    Senator Kennedy. On these proposed detention standards, I 
don't know what your--are they being just decided in the 
Department? Have you gotten any outside guidance on those?
    Mr. Garcia. My understanding is they're an internal 
standard, and I'll make sure this is--
    Senator Kennedy. You might find out--I don't know the 
extent. I should know the answer. I don't--whether they have 
ever asked or whether any Justice Departments have asked for 
any input by the Committees in the development of these, or 
maybe it is just completely internal. But there may be some 
suggestions on this. You can take a look at it and let us know.
    Mr. Garcia. I don't know the answer to that. We'll find 
out, Senator.
    Senator Kennedy. On our National security entry/exit 
registration, NSEERS, it required Muslim and Arab visa holders 
who were students, workers, researchers, and tourists to be 
fingerprinted, photographed, and questioned. Is it effective to 
target persons based on their religion or national origin 
rather than specific evidence of criminal activity or 
connection with a terrorist organization? Is this an effective 
use of resources? And what effect is it having on the Arabs and 
Muslims whose cooperation we need more than ever in the battle 
against terrorism?
    Mr. Garcia. Senator, NSEERS had a list of countries whose 
nationals were required to register in the categories that you 
mentioned--visitors--and also required registration based on 
specific criteria. One of the public criteria that has been 
discussed is travel patterns. So, for example, if someone had a 
travel pattern perhaps indicating travel to Afghanistan, they 
were also required to register regardless of their nationality. 
But it was certainly not race- or religion-based in any way.
    I appreciate that that system--and it's ongoing in terms of 
the port of entry--raises sensitivities, raises concerns. I 
believe that everyone--the vast, vast majority of the folks we 
encounter are law-abiding. Everyone needs to be treated with 
dignity and respect. I understand that it raises issues in 
terms of feeling in the community. We have done work, outreach 
work, and, quite frankly, Senator, when I first came in to INS 
and we had the first domestic registration out in California, 
it wasn't handled appropriately. And there were problems in Los 
Angeles and detention issues that, going forward, we tried to 
put resources there, give people the ability to basically say 
come back at a later time and avoid the problems we saw in Los 
Angeles in that early registration period, which I think we 
successfully did.
    I think it's an effective measure, an effective tool in 
gaining control of the border in terms of entry/exit. It has a 
number of different values: one, in terms of public safety and 
a number of criminals were apprehended, and I think the number 
is upwards of 140 in the process; and, two, in making sure that 
we screen folks who might pose a national security concern, and 
there are a number of individuals who did pose concerns that 
were, I think, primarily turned away at the border and ports of 
entry. So it had a dual role in my mind, although--and an 
effective role, although I do understand that it raises a 
number of issues that we must be sensitive to.
    Senator Kennedy. I appreciate your comments on it because 
you have obviously thought about it. But I am just wondering 
whether you are forgetting the results in terms of evaluation. 
That is certainly one part. But the spin-off that it has at a 
time that you are trying to recruit individuals in various 
groups in different populations is certainly something that you 
want to give attention to as well.
    I thank the Chair. I just have two more questions.
    In the IG's report, were you surprised at the end, after 
all of the detainees on immigration issues, that there weren't 
any--that all they had, at least as I understand it, were 
violations of immigration law and not the association in terms 
of terrorist activity?
    Mr. Garcia. Well, as I understand it, it was a sample of 
about 760 or so. Was I surprised? And I'll answer this based on 
my background. No, I wasn't surprised. Terrorism charges are 
very difficult to make. I don't want to say that 760 people 
with association with terrorism couldn't be proved. Given the 
way the procedure went forward as outlined in the report, some 
of these folks clearly were taken into custody as a result of 
leads that in the end didn't seem to have much to do with the 
9/11 attacks. So it doesn't surprise me then at the end there 
was no connection to terrorism there, and that's one of the 
criticisms the IG made, that there needed to be a better 
parsing or organization putting people into high risk when 
there really were facts and circumstances to support that 
categorization. So I think in that sense that result is fairly 
predictable.
    Also, this was an exercise in disruption, and if--it's very 
hard to prove a negative. There were no attacks, and there were 
no follow-up bombings. There was the anthrax attacks. But in 
terms of bombings, there were not. And it's very hard to prove 
any connection there. But, again, it's hard to disprove a 
connection between a disruptive exercise and the fact that you 
did not have follow-up attacks.
    Senator Kennedy. Just finally on the issue of unaccompanied 
minor children. The Security Act transferred issues relating to 
unaccompanied alien children from Immigration and 
Naturalization to the Office of Refugee Resettlement because 
that office has the expertise to work with children. And the 
Department of Homeland Security would focus on law enforcement 
functions. Obviously, these responsibilities overlap in some 
cases.
    It is my understanding the Office of Refugee Resettlement 
has not had the full cooperation of the Department of Homeland 
Security in negotiating a memorandum of understanding on their 
respective responsibilities for protecting unaccompanied 
children. Passing the Act, Congress clearly intended ORR to 
have all care, custody, and placement responsibility for 5,000 
children each year who are detained for longer than 72 hours in 
order for them to seek immigration relief. Many other children 
are arrested each year by the Department of Homeland Security. 
Most of them from Mexico and Canada are repatriated within 
hours upon a request for voluntary departure.
    Can you tell us about what is holding up the agreement?
    Mr. Garcia. Yes, Senator. Thank you. I know--
    Senator Kennedy. And will the DHS resolve the remaining 
issues and the best interests, putting the interests of 
children first?
    Mr. Garcia. First let me say I know and appreciate your 
interest and leadership on this issue. DHS fully supports the 
transfer of this function to ORR and HHS, and, in fact, has 
been working very hard to transfer that function over. You 
know, in the March time period, we transferred $20 million, 20 
FTEs fully funded, including 7 full-time positions on board at 
headquarters that were responsible for this program over to 
ORR. That being done, we still have not had full assumption of 
the responsibilities of that program by ORR.
    The sticking point seems to be to me the fact that ORR does 
not want to become involved in the transportation of the 
minors. I see that as a key element of what you and Congress, 
you, Senator, and Congress had in mind in transferring that 
program over. And many times INS has been criticized for the 
transportation function of minors.
    I see that part of it also going to ORR along with the 
budget and the position. At the moment, as you point out, the 
key has to be taking care of the children who come in. So we 
are performing that function. In many cases, we are assigning 
people to facilities where ORR won't certify the facility, but 
there's nowhere else to place the child. So we still assume 
responsibility for placement.
    I believe these are important issues that need to be worked 
out. I have talked to the group working on this. I've asked 
them if they cannot make progress now to begin to elevate this, 
DHS certainly has an interest in seeing this program where it 
belongs. I certainly have an interest in doing an orderly 
transfer but, most importantly, seeing the children that come 
in as unaccompanied minors are properly cared for. So I would--
    Senator Kennedy. Well, if you could give it a little 
personal attention--
    Mr. Garcia. I certainly will.
    Senator Kennedy. --when you return, I would be very, very 
grateful to you.
    Mr. Chairman, thank you very much. I appreciate very much 
the answers to these questions. These are complicated, 
difficult issues, but they affect real people, real lives, and 
we want to work with you on these issues and others. We 
congratulate you on your appointment.
    Mr. Garcia. Thank you, Senator.
    Senator Chambliss. Mr. Garcia, even though it is in its 
infancy, certainly the Department of Homeland Security is 
already one of the most significant agencies in our country 
because, as Senator Kennedy says, it involves protecting the 
safety and security of Americans. And I am pleased that people 
of your caliber are willing to step forward and provide public 
service in the capacity which you have been and I am confident 
will continue to do.
    At this time, I would like to ask unanimous consent that we 
close the record in 48 hours for questions to be submitted, and 
Senator Leahy has already indicated he has some additional 
questions, so if minority staff will make sure that he 
understands that those need to be submitted within 48 hours.
    Also, I would like to ask unanimous consent to include any 
Senators' statements in the record. Hearing no objection, so 
ordered.
    Mr. Garcia, thank you very much.
    Mr. Garcia. Thank you, Mr. Chairman.
    Senator Kennedy. Mr. Chairman, I am going to have to depart 
from the hearing, but I wanted to just add my welcome to Mr. 
Goldsmith. I would like to be able to submit my questions if I 
could to him, and I want both him and the Committee to know 
that all of us have a very keen awareness of the importance of 
OLC. It is an extremely important responsibility and job, and 
we look forward to working with him. But I thank you very much 
for the opportunity to submit questions. We will do this in a 
timely way and a way which will not delay the consideration of 
the nominee.
    Senator Chambliss. Is 48 hours sufficient for you to do 
that?
    Senator Kennedy. Forty-eight hours is fine.
    Well, could I consult with you on the 48 hours?
    Senator Chambliss. I am sorry. I misunderstood.
    Senator Kennedy. I apologize. We both need our marching 
orders here. We will try to do it in a timely way and will talk 
with you about it.
    Senator Chambliss. Sure.
    Senator Kennedy. Thank you.
    Senator Chambliss. Mr. Goldsmith, if you would come 
forward, please, sir. If you will raise your right hand before 
you sit down, please, sir? Do you solemnly swear the testimony 
you are about to give before this Committee will be the truth, 
the whole truth, and nothing but the truth?
    Mr. Goldsmith. Yes, sir.
    Senator Chambliss. I would like to welcome Mr. Jack 
Goldsmith, who is the nominee to be the Assistant Attorney 
General at the Office of Legal Counsel in the Department of 
Justice. Most recently, Mr. Goldsmith has served as special 
counsel in the General Counsel's Office at the Department of 
Defense. Since 1994, Mr. Goldsmith has been a law professor at 
the University of Virginia Law School. Mr. Goldsmith has had an 
impressive legal career, having clerked for Fourth Circuit 
Judge Harvie Wilkinson, then clerked for U.S. Supreme Court 
Justice Anthony Kennedy, after which he went on to his third 
judicial clerkship at the Iran-U.S. Claims Tribunal.
    Mr. Goldsmith graduated from Washington and Lee University 
summa cum laude, received a master's degree at Oxford 
University, first-class honors, and received his J.D. from Yale 
Law School.
    It is hard to improve on Mr. Goldsmith's background. I am 
sure he will serve the Department of Justice and the President 
of the United States very well.
    Mr. Goldsmith, we welcome you here today. We will be happy 
to submit any written statement that you wish to submit for the 
record, and we will be glad to take any summary of your written 
statement if you want to do so at this time.

    STATEMENT OF JACK LANDMAN GOLDSMITH III, NOMINEE TO BE 
ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, DEPARTMENT 
                           OF JUSTICE

    Mr. Goldsmith. Thank you very much, Mr. Chairman. I'd just 
like to make a few thank-you's if I could. First of all, to you 
and this Committee for having this hearing to consider my 
nomination. I'd also like to thank the President and the 
Attorney General for nominating to be Assistant Attorney 
General, Office of Legal Counsel. I'd like to thank Senator 
Allen for his kind introductory remarks. And last, but not 
least, I'd like to thank my family for traveling from all 
around the country to be here with me today and for their 
unceasing support.
    I have no further statement, sir.
    [The biographical information of Jack Goldsmith III 
follows:]

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    Senator Chambliss. Well, I have just a couple of things I 
want to ask you about.
    As legal counsel, you are going to be asked to participate 
in all of the significant challenges facing the Justice 
Department: review of Executive orders and Presidential 
proclamations, provide legal advice to the executive branch on 
constitutional questions and review legislation. That is a 
substantial workload and a very heavy responsibility being 
placed on your, Mr. Goldsmith. Would you care to comment on how 
you will accomplish all you are asked to do? Would you outline 
your priorities as head of the Office of Legal Counsel?
    Mr. Goldsmith. Thank you, Mr. Chairman. It is indeed a 
heavy responsibility, sir, and it's one I take very seriously. 
My main goal, if confirmed as head of Office of Legal Counsel, 
would be to continue the extraordinary traditions of the office 
in providing objective legal advice, independent of any 
political considerations. That is the--in my opinion and in the 
opinion of all of the former heads of OLC that I've consulted 
with, that is the main task of the office, the primary 
responsibility, and it's something that I assure you I'll 
always keep in mind in everything I do there.
    More generally, sir, my job, if confirmed, would be to 
provide first-rate legal advice to the Attorney General 
primarily, and as his delegate, to the other heads, to the 
other departments on legal issues that arise, and to do so in a 
timely fashion.
    Senator Chambliss. You are presently serving as special 
counsel to the general counsel in the Department of Defense. In 
that capacity, I presume you played a significant role in the 
war against terrorism. In addition to these issues, would you 
outline other responsibilities as well--substantive as well as 
management responsibilities that you are going to undertake in 
your new position?
    Mr. Goldsmith. Sir, most of my substantive responsibilities 
will be defined by the tasks I'm asked to perform. It will 
depend on what the Attorney General asks me to do and what the 
other departments in the executive branch--the specific legal 
advice they seek. As to substance, it really depends on what 
we're asked to do.
    As to management, the Office of Legal Counsel is blessed 
with an extraordinary group of lawyers, very hard-working 
lawyers, and my goal will be to make sure that they continue to 
produce the first-rate legal advice that they've always 
provided.
    Senator Chambliss. All right. Well, Mr. Goldsmith, I think 
you are fortunate. It looks like everybody ran off and left us.
    [Laughter.]
    Senator Chambliss. You have outlined the questions that I 
had, and it is the custom of the Committee that the record 
remain open for 7 days for questions to be submitted, so I am 
certain that there will be other questions that will be 
forthcoming. But unless anybody has anything further, we will 
close the hearing at this time.
    Thank you very much for being here.
    Mr. Goldsmith. Thank you, Mr. Chairman.
    Senator Chambliss. We look forward to moving ahead with 
your nomination.
    Mr. Goldsmith. Thank you, sir.
    [Whereupon, at 3:45 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]

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